Kopunovich v Melbourne Health

[2014] VCC 1318

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-05795

DUBRAVKA KOPUNOVICH	Plaintiff
v
MELBOURNE HEALTH	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 and 29 October 2013 and 18 August 2014
DATE OF JUDGMENT:	19 August 2014
CASE MAY BE CITED AS:	Kopunovich v Melbourne Health
MEDIUM NEUTRAL CITATION:	[2014] VCC 1318

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to the right and left shoulders – pain and suffering only

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)

Cases Cited:Dordev v Cowan & Ors [2006] VSCA 254; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108

Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Ryan	Nowicki Carbone
For the Defendant	Mr M Clarke	Hall & Wilcox

HIS HONOUR:

1 This application seeks leave to bring proceedings for pain and suffering damages only pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”).

2       The hearing commenced on 28 October 2013.  The injuries relied on are to the left and right shoulders, suffered in the course of the plaintiff’s employment with the defendant between 3 May 2007 and 21 July 2010.[1]  It was conceded these needed to be examined individually and could not be aggregated.[2]

[1]Transcript (“T”) 2

[2]T131-132

3       During cross-examination, it became apparent that the plaintiff was suffering from a low back condition and had been for some time.  Her general practitioner, Dr Fotakis, on 14 October 2013, had listed it as the first in a list of injuries in support of an application for a Disability Support Pension.  He described it as chronic low back pain with disc bulges and nerve root impingement and it was progressively worsening.[3]

[3]Defendant’s Court Book (“DCB”) 12 – 13

4       The second condition in support of the pension application, according to Dr Fotakis, was the bilateral shoulder injuries[4] and the third condition was depression and Post-Traumatic Stress Disorder (“PTSD”) secondary to the death of her son.[5]

[4]DCB 14

[5]DCB 17

5       In cross-examination, plaintiff admitted back symptoms and disabilities, although she was equivocal in relation to her general practitioner’s support of her application for the pension.[6]  She answered very evasively, in my opinion, in relation to these matters.  It became clear though that the low back disability required MRI scanning and had even involved discussion of spinal surgery.[7]  The plaintiff eventually agreed to a very disabling back condition.[8]  In fact she said it was aggravated by all physical activity.[9] 

[6]T62-66

[7]T66, DCB 1

[8]T65-70

[9]T89

6       This oral evidence was all in the context of two affidavits being sworn by the plaintiff in which the back is only mentioned once.  It is really an almost throwaway line in the second affidavit about physiotherapy when she said that she is having such treatment “… for pain, my shoulders and back”.[10]  The back condition was not included in the Particulars of Injury[11] nor in the Form A under s134AB that instigated the application for serious injury.

[10]Plaintiff’s Court Book (“PCB”) 16

[11]PCB 5

7       When challenged about the absence of affidavit evidence about the extent of this back condition, the plaintiff replied that she was really just following the instructions of her “legal team”.[12]  I infer from that, she was deliberately not mentioning the back problem in her affidavits and to a number of doctors.

[12]T66

8       On the second day of the hearing, an adjournment was sought and granted so the plaintiff could consider amending the Particulars of Injury to include the back.  Both parties needed to consider their position and seek instructions.  It was agreed that the low back condition had been part of a list of injuries for which weekly payments were sought in the Magistrates’ Court in August 2011.[13] 

[13]T73-74

9       On 11 December 2012, I granted leave to the plaintiff to amend the Form A and the Particulars of Injury to add “injury to the lumbar spine”.  The low back injury had been the subject of a WorkCover Claim Form dated 27 July 2010[14]  as well as a Claim for Impairment Benefits Form dated 26 October 2011.[15]  The application for a serious injury post-dated both of these earlier claims.

[14]PCB 56-57

[15]PCB 58-59

10      A further adjournment was granted to accommodate medical appointments organised for early 2014.  After reports were received, the parties agreed on five medical questions about the back condition that by consent were referred for a Medical Panel Opinion on 16 April 2014.  I will deal with this later.

11      In her first affidavit sworn July 2012, the plaintiff set out her employment history.  She also described that she commenced a Masters of Forensic Science degree and a Bachelor of Arts with a psychology major degree, but she had not been able to complete those due to her work-related injuries, those injuries being the right and left shoulder.  She relied on the inability to pursue tertiary studies as a “serious” consequence.[16]

[16]T11-13

12      The plaintiff described working for the defendant as a computer clerk, generally in the medical records section.  She was required to transport medical records and files around the hospital wards with a trolley and she suffered shoulder injuries in the course of that work. 

13      The plaintiff came to Australia when she was nine years of age.  She had two children. However, sadly, she lost her adult son in a motor vehicle accident on 3 June 2007.  She had worked until 2005 when she ceased due to her husband suffering cancer.  He also died in 2007.  Her start date with the defendant was 3 May 2007 and she generally worked three nights a week on a permanent part-time basis.  The death of her son continues to cause psychological problems.[17]

[17]T7

14      The consequences relied on were principally her shoulder pain and its intrusion into her everyday life, including her sleep, driving and household tasks.[18]  Also the loss of the plaintiff’s job was referred to as a consequence   that had impacted on her enjoyment of life.[19] 

[18]T10

[19]T19-20

15      The defendant indicated the issues for determination were that the shoulder injuries needed to be considered as separate injuries and not aggregated.  It also stated that neither was “serious” in the sense of resulting in “very considerable” consequences.[20]

[20]T14

16      It was a great advantage in this case to hear and observe the plaintiff.  I found her to be a very unreliable witness.  She answered in a way that reflected a witness prepared to say virtually anything when something was put to her and then to change what she said almost as quickly.  She was evasive and at times indicated a selective memory.

17      The evidence about what studies she had done in the past, what she was doing at the present time and the circumstances when discontinuing studies was vague and unsatisfactory to say the least.[21]  I gave the plaintiff several opportunities to provide even the most basic details about education matters.[22]  She was even given the lunchbreak to sort out some of these very simple matters in relation to her studies.[23]

[21]T11-12; T16-18

[22]T18; T24

[23]T24

18      Her résumé is far from clear regarding what studies and degrees she has pursued.[24] The plaintiff said, in answer to my questions, that she had completed a Bachelor of Science degree at Deakin University years ago.[25] She could not recall when it was completed.[26]  After the luncheon adjournment she said that she completed it in the 1990s.[27]

[24]DCB 113; T21-24

[25]T23-24

[26]T24

[27]T26

19      The plaintiff then said she commenced a Masters in Forensic Science but could not recall when.[28]  She could not recall when subjects in the Masters had been completed.[29]  This course was being done at the University of Canberra.  She was unable to say whether she completed any subjects, even in 2012.[30]

[28]T26

[29]T27

[30]T28

20      I find it inexplicable that when one goes to her résumé of March 2007 at the time she is looking for work, that it does not anywhere state that she completed any degree.  She refers only to a Bachelor of Science/Art being discontinued.  I do not need evidence that academic records can easily be obtained even from years past, but in this case, as with much of the other evidence from the plaintiff, academic details were largely just left up in the air.  In her first affidavit, when she described her background, no mention was made of any Bachelor of Science degree from Deakin.[31]  It confirmed the grave hesitation I had in accepting her evidence.

[31]PCB 7- 8

21      I was not satisfied that the plaintiff was always giving accurate evidence.  The evidence about her studies was unconvincing in regard to what she had done previously, had done post-injury and was doing at the present time, let alone being interrupted by these injuries.

22      Furthermore, the plaintiff was cross-examined about her affidavit evidence regarding the circumstances of her stopping work on 31 May 2010.  In the first affidavit, she stated quite unequivocally that it was because of a verbal altercation with another employee.[32]  Then, in the second affidavit sworn in October 2013, she said she stopped work as a result of shoulder pain.[33]  Her evidence about when and the reasons she stopped work around 31 May 2010 is unclear, unsatisfactory and inconsistent.[34]

[32]PCB 13

[33]PCB 18; T33

[34]T33-37

23      There is an email from the plaintiff to her supervisor dated 7 July 2010.  When cross-examined about this, she was initially reluctant to adopt it as her own email.[35]  She then went on to describe that there were separate incidents, being the altercation with a fellow employee and her going off work due to pain.[36]  The altercation was described as having occurred over a one or two-week period.  That was also hard to reconcile with other evidence about her reasons for going off work.  Her evidence about the doctor’s progress note of 7 July 2010 recording emotional reasons for going off work was unconvincing.  I gave her a break to collect her thoughts on this as she was perhaps confused and was certainly not doing her case any service.[37]

[35]T38-39

[36]T41-42

[37]T40, T54-55

24      The thrust of this evidence about the circumstances of her ceasing work is unclear.  It was a topic on which she was extremely evasive.  The probabilities are that it was a confrontation with another employee that led to her ceasing work, but ultimately it remains that the plaintiff has failed to prove she ceased work because of any problems with her shoulders, let alone either of them individually.

25      Further cross-examination about the plaintiff’s attendance with reference to key-card computer recorded entries at the premises suggested she was away from work for about eighteen days in June 2010.  Her evidence about her being off work in June and July 2010 due to medical problems other than the claimed shoulder injuries was indicative of prevarication and unreliability.[38]

[38]T52- 55

26      Furthermore, the plaintiff’s evidence about receiving a notification about misconduct allegations in the context of reasons for going off work was unsatisfactory and inconsistent.[39]

[39]T55-58

27      Another topic on which she was challenged was when she first commenced to suffer from blood pressure.  The email I have referred to states that “I had to go on blood pressure medication” in the context of the confrontation with the employee on 31 May 2010.[40]

[40]DCB 102

28      When challenged about a short report from her general practitioner dated 18 April 2007, in which blood pressure was described as a condition in her past history, she provided another example of inconsistent and unreliable testimony.  That same letter also referred to her “chronic lower back pain” in April 2007 and that a pension was being sought for the back.[41] 

[41]DCB 3

29      In relation to the plaintiff’s previous low back problems which really emerged only in cross-examination, it was suggested she had a referral to a specialist for low back problems in April 2007.  She had a CT scan in March 2007.  The plaintiff admitted, when matters were put to her, that she had “unbearable back pain for the last three years or so”, being 2010 to 2013.[42] 

[42]T64-66

30      Accordingly, the evidence from these various sources indicated at different times she suffered unbearable back pain that had lasted for years, allegedly dangerously high blood pressure, depression, PTSD and the bilateral shoulder conditions, all of which at some time or other between 2007 and 2010 had impacted on her capacity to work.  Which account is accurate and to what extent has simply not been made out by the plaintiff.

31      The plaintiff’s evidence about the back condition got to the stage in cross-examination where she conceded that she could not work with the defendant because of that problem.  She could not walk more than a few steps without back pain.  She said it was pain that gets worse with any form of activity and is unbearable.[43]

[43]T65-70

32      Credit is crucial in a pain and suffering application such as this.  Medical opinions are dependent on the accuracy of the plaintiff as an historian and being reliable.  If the plaintiff did not give an accurate account of the history of the subject injury and its effects, as well as of other relevant medical problems, then little or no weight can be given to some opinions.[44]

[44]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [15] and Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]

33      In the end the plaintiff’s evidence on a number of the topics I have alluded to was unsatisfactory, inconsistent and unreliable.  She answered questions in the witness box in a way that was not consistent with a witness doing her best to be accurate.  I did not find her a witness of credit.

34      Accordingly, I cannot accept the plaintiff’s evidence about the level of her bilateral shoulder symptoms nor as to each one individually and what she said about their consequences.  In addition, her credit means that little or probative weight can be given to the medical opinions in this case.  For example, Associate Professor Martin Richardson, orthopaedic surgeon, who has treated the plaintiff for the shoulder problems, had no history of the unbearable pain that she now described arising from her low back condition that renders her unable to work for the defendant.  While he was not treating the back, it was nevertheless relevant to him giving an opinion about any incapacity for work her shoulders caused to have a full medical history of other physical conditions she described so graphically during cross-examination.  He also had no history at all of the low back pain described as the principal condition by her general practitioner in support of a Disability Pension on 14 October 2013.[45]  Nevertheless, Associate Professor Richardson was there to treat the shoulders only so it is of perhaps less relevance than the medico-legal witnesses who are engaged for the purposes of this case.

[45]DCB 8-18

35      Mr John O’Brien, orthopaedic surgeon, saw the plaintiff in February 2011.  He referred to complaints of back pain in addition to the shoulder pain arising from her employment with the defendant.  However, he was given no history of this chronic low back pain that predated that employment.  In fact, he took a history that the onset of lower back pain occurred towards the end of 2007 in an employment context.[46]  He had no reference to CT scanning and specialist referral for the back prior to the subject employment.  He had an inadequate history of the circumstances of her going off work in the context of the evidence about a confrontation with an employee, dangerously high blood pressure and consequent emotional stress.  Mr O’Brien simply recorded that she went off work because she was unable to cope with her normal duties and this is clearly in the context of her shoulder and back injuries.[47]

[46]PCB 43

[47]PCB 44

36      The plaintiff saw Ms A Manolopoulos, orthopaedic surgeon, in October 2013 for medico-legal purposes.  She had an inadequate history about the onset of back pain and clearly was under the impression that the plaintiff experienced back pain in the course of her work with trolleys.  No material indicating a chronic back condition prior to starting with the defendant was before her.  She also had a clear impression that the plaintiff stopped work in July 2010 due to the physical injuries.[48]  There is no history of the confrontation with an employee, the alleged dangerously high blood pressure that caused her to go off work and email her supervisor, nor the depression and PTSD her general practitioner described to the Centrelink authorities.

[48]PCB 49

37      The opinions of both Mr O’Brien and Ms Manolopoulos are so impaired by the inadequate histories given by this unreliable witness that little or no weight can be given to them save that the plaintiff does have some bilateral shoulder conditions.

38      I accept that the plaintiff has probably injured both her shoulders to some extent in the course of her employment but I do not accept the consequences she describes as being “very considerable”.  I do not accept that her shoulders were the reasons she went off work and is not working at the present time.  I do not accept her evidence that the pain she describes is as severe as she would make out.  I do not accept that it has impacted on her studies and her social life to anywhere near the extent she describes.  She has failed to prove consequences of either shoulder injury that of itself could reach the level of “serious”.

39      The plaintiff saw an additional treating orthopaedic surgeon, Mr C Pullen, for treatment advice in November 2011.[49]  He gave advice about possible treatment options and encouraged the plaintiff to speak to Associate Professor Richardson about this.  However, Mr Pullen did not take the matter any further with respect to the consequences of any impairment of function of either the left or the right shoulder.

[49]PCB 48

40      The general practitioner, Dr Fotakis, described the back and shoulder problems in a series of reports and in particular, the recent reports in March 2013[50] and October 2013.[51]  He said that the right shoulder alone and the left shoulder alone would cause limitations with respect to work.[52]  I do not read these limitations as amounting to very considerable consequences in all the circumstances of this case.  He too was dependent on the plaintiff’s description of the level of symptomology.  This cannot be relied on for the reasons I have mentioned.  He described her treatment to date in the course of his reports as well as certain treatment options that may be available.

[50]PCB 40-41

[51]PCB 42

[52]PCB 42

41      When one looks at her treatment regime overall it is not, in my opinion, indicative of very disabling shoulder symptoms.  He thought also that she had quite reasonable employment prospects in spite of her injuries and she was more than capable of learning new skills to cope with the demands of a new job.[53]  He did not comment on the impact on her studies nor on any other enjoyment of life consequences that would justify a finding of “serious injury”.

[53]PCB 41

42      After the parties sought an order by consent referring five agreed medical questions, the Panel met on 27 June 2014.  It provided an Opinion on 14 July 2014.[54]  The hearing resumed on 18 August 2014.

[54]DCB 62q-r

43      The Panel Opinion included:

Q2:“Does the plaintiff’s current low back condition result in or materially contribute to any and if so, what impairment or loss of body function (namely impairment or loss of function of the lumbar spine)?

A:No”.[55]

[55]Certificate of Opinion dated 14 July 2014

44      This Opinion is quite contrary to the rather dramatic way the plaintiff described her low back condition in the witness box.  For example when pressed about it in cross-examination, she said she could not work with it, could only walk a few steps due to pain and at times pain was unbearable.[56]

[56]T65-70

45      In any event, at this further hearing on 18 August 2014, the plaintiff abandoned the claim for the low back injury in regards to the application for leave.[57]  This was no doubt in view of the Medical Panel Opinion in regard to the referred Questions 2, 3 and 4.[58]  Nevertheless, on any view of the plaintiff’s evidence, the back symptoms impact on a large number of activities she said the shoulders impede or make painful.  Just two weeks before this hearing commenced her local doctor described her primary condition to Centrelink as chronic back pain and stiffness with sciatica.  He thought it was progressively worsening.[59]

[57]T85-86

[58]DCB 62q and r

[59]DCB 12-13

46      It remains to be said that in a case where the plaintiff is dependent on pain as the major symptom said to disable her and reduce enjoyment of life, treatment needs to be investigated.  She is not having any.  She has not seen a specialist for treatment since 2011.  There is no ongoing physical therapy.  She is not even taking any regular analgesics of the ‘over the counter’ variety, let alone prescription drugs.[60]  The most recent radiology of May 2013 reported very little by way of pathology.[61]

[60]T90-91

[61]DCB 2

47      Even looked at in an aggregated sense, which is not permissible, the plaintiff has not proved consequences that are “serious” as a result of her shoulders being impaired.  It follows she has not proved on a disentangling exercise that either the left or right shoulder of itself is a “serious” injury.

48 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It is not necessary in this application to describe all the medical evidence in great detail as it largely speaks for itself. In view of the findings I have already set out there is no need to deal with each doctor the defendant relied on. A lot of reports are too dated also to assist in judging consequences now in August 2014.

49      The most recent report is from the orthopaedic surgeon, Mr R Simm, in 2014.    He said there were “possible” symptoms still ongoing as a result of shoulder injuries but did not speak in terms of probability.[62]

[62]DCB 62n

50      He found inconsistencies between the presentation and pathology that made it difficult to evaluate physical impairment.[63]  I agree with this comment in the overall context of gauging the plaintiff’s alleged consequences in this application.  In the end he accepted her shoulder conditions, used in an aggregated sense “…may be associated with difficulty with heavier tasks such as household cleaning and heavier occupations, particularly overhead occupations or occupations that involve reaching out and supporting weights at arm’s length”.[64]

[63]DCB 62o

[64]DCB 62p

51      Even taken bilaterally, which is not allowable, this most up-to-date opinion does not support granting leave for pain and suffering consequences, let alone discharging the onus as to either shoulder taken individually.

52      Finally, on all the evidence, the plaintiff is still suffering from a psychiatric condition following the death of her son.  There is no need to detail this in view of my comments above but on the probabilities that condition impacts on the plaintiff’s ability to go about her normal daily life and enjoy it.  She is still suffering depression and PTSD secondary to losing her son in a motor vehicle accident as recorded by her general practitioner on 14 October 2013.[65]  She still sees a psychologist every fortnight.[66]  The plaintiff has not sufficiently disentangled her shoulder symptoms, left or right, from her psychiatric condition in terms of loss of enjoyment of life.

[65]DCB 17

[66]T92

53      For the reasons described the application is dismissed.

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