Koutroumanis v Capral Limited
[2012] VCC 560
•11 May 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06155
| DIMITRIOS KOUTROUMANIS | Plaintiff |
| v | |
| CAPRAL LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 May 2012 | |
DATE OF JUDGMENT: | 11 May 2012 (Revised) | |
CASE MAY BE CITED AS: | Koutroumanis v Capral Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 560 | |
REASONS FOR JUDGMENT
---
SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Serious injury – pain and suffering consequences of bilateral shoulder injuries
LEGISLATION CITED: Accident Compensation Act 1985 s.134AB
CASES CITED: Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Raimondo v Hoi Yeung [2005] VCC 1400; Giuliano v Red Robin Pty Ltd [2008] VCC 1805; Wright v Mount Edisar [2006] VCC 410; Ristovska v VOA Webco Pty Ltd [2010] VCC 152; De Luca v Pinkey & TAC [2007] VCC 1307.
JUDGMENT: Leave granted to the plaintiff to bring proceedings for pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan | Zaparas Lawyers |
| For the Defendant | Mr C Hangay | Hall & Wilcox |
HIS HONOUR:
1 Dimitrios Koutroumanis alleges that he suffered injuries to his left and right shoulders in the course of his employment with the defendant from about 2003 until about January 2009. In particular, he relies on the development of bilateral shoulder pain on or about 2 December 2008 in the course of that employment. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of those injuries.
2 His right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities, that the injury suffered by him is a “serious injury”.[1]
[1]Section 124AD(19)(a)
3 The term “serious injury” is defined in s.134AB (37) of the Act, in so far as is relevant to this application, as a “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of his left and right shoulders.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs 18-19
6 The term “serious” is to be satisfied by reference to the consequences to Mr Koutroumanis of any impairment or loss of the function of his shoulders with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB (38)(b).
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application, unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB (38) (c).
8 The application relates solely to the pain and suffering consequences of the bilateral shoulder injuries alleged to be suffered by him.
9 Counsel for Mr Koutroumanis submits that the consequences of each of his shoulder injuries can fairly be described as being more than significant or marked and at least very considerable. Counsel for the defendant denies this is so. It is this issue that is to be determined.
Background
10 Mr Koutroumanis is sixty-eight years old. He was born in Greece, where he had six years of schooling and then worked on his family’s olive trees. He migrated to Australia with his parents in 1959 as a teenager.
11 In Australia he has had a relatively impressive employment record. He was in a number of jobs in various factories. In particular, I note that he was employed by BP as a storeman for some twenty-five years until he was made redundant. He then sought work with a labour hire company, Skilled, who arranged for him to work again at BP for about two years and then with the defendant company from about 2003. He was employed at the defendant’s premises by Skilled for about seven or eight months and thereafter became a direct employee of the defendant from about 2004. His work involved manually picking orders of aluminium items consisting of relatively large sections of aluminium of varying dimensions, weighing up to about 20 kilograms.
12 On about 2 December 2008, in the course of that employment, he experienced pain in his shoulders, worse on the left side. He reported this to his boss and attended at the Northern Hospital. There, he was examined, given painkilling medication and a provided with certification for three days off work.
13 Soon after, the defendant arranged for him to be seen by a Dr Flaim, who arranged for an ultrasound of both shoulders in December of 2008.
14 In due course, he saw his general practitioner, Dr Low, who certified him unfit to work for some days. He attempted a return to work on light duties in mid December 2008 but was given duties which involved him using a large broom to sweep which made his shoulder pain worse. He stopped work after a few days.
15 Dr Low arranged for him to have a steroid injection into both shoulders later in December 2008 and this eased his discomfort for a few weeks. He was treated by an ultrasound-guided injection into his right shoulder in January 2009 which did not improve his condition.
16 In February 2009, he was referred to Mr Paul Burns, orthopaedic surgeon, who did not consider surgical treatment was warranted at that time. At approximately the same time, the defendant arranged for him to be seen by Sandra Taylor, an occupational therapist. No report was tendered from her.
17 In March 2009, he was involved in a transport accident. He suffered additional pain in his right shoulder which was jarred by his seatbelt. He was put off work for approximately two weeks. He returned to work on light duties but experienced increased shoulder pain, again when allocated sweeping duties. He has not worked since June 2009, nearly three years ago.
18 Dr Low referred him for physiotherapy in early 2009. He attended twice per week for some months but found that it was not helping his pain.
19 He underwent a further ultrasound of both shoulders in April 2009 and then underwent a second ultrasound-guided right shoulder injection in April 2009 and a similar injection to the left shoulder in May 2009. These provided no lasting benefit.
20 Mr Koutoumanis’ English is only fair. In May 2009, desirous of treatment from a Greek speaking doctor, he consulted general practitioner, Dr Andrianakis, on the recommendation of his brother.
21 Dr Andrianakis referred Mr Koutroumanis to Associate Professor Goldwasser, an orthopaedic surgeon. Professor Goldwasser arranged for a further injection of local anaesthetic into his left shoulder which provided him with temporary relief only. He underwent further x-rays of the right shoulder and a further ultrasound in December 2009. He has been prescribed anti-inflammatory medication but is reluctant to take it too often. His daughter-in-law is a nurse and she has advised him not to do so. He has regularly taken non-prescription analgesic medication.
22 Mr Koutroumanis describes pain in both shoulders, but worse on the left. In particular, the pain in his left shoulder is worse on the top of the shoulder, spreading towards the neck. Any movement of his left arm away from his upper body increases the discomfort. He is unable to raise his left arm above chest height or put his left hand completely behind his back because of shoulder pain. He can just reach his left hand to his head although this is largely achieved by flexion of his elbow. He is limited in the tasks that he can perform with his left hand to handling quite light items. He is able to bend his elbows bilaterally without difficulty.
Diagnosis of injury
23 The nature of Mr Koutroumanis’ injuries is largely non-contentious.
24 Having read the reports of Dr Flaim;[5] Dr Andrianakis;[6] Northern Health (The Northern Hospital);[7] Associate Professor Goldwasser;[8] Mr Burns;[9] Mr Flanc;[10] Mr Hunt[11] and Dr Fraser;[12] I am satisfied that Mr Koutroumanis has suffered:
[5]PCB 35
[6]PCB 36-40.3
[7]PCB 41
[8]PCB 42-50
[9]PCB 51
[10]PCB 60-83.1.
[11]PCB 84-94.
[12]DCB 1-11.
(a) In respect of his left shoulder, a full thickness rotator cuff tear at the anterior aspect of the supraspinatus tendon, long head of biceps tenosynovitis, and subdeltoid/subacromial bursitis with impingement on abduction.
(b) In respect of the right shoulder, a full thickness tear at the anterior aspect of the supraspinatus tendon, long head of biceps tendon rupture, and subdeltoid/subacromial bursitis with impingement on abduction.
25 I am satisfied that whilst the injuries are bilateral shoulder injuries, the left shoulder injury has resulted in more severe problems for Mr Koutroumanis.
26 The Claims agent arranged for Mr Koutroumanis to be examined by Dr Barton, an occupational physician, in May 2009.[13] I note that Dr Barton concluded that Mr Koutroumanis had not suffered a work-related injury and was capable of returning to full-time normal work duties. Counsel for the defendant did not seek to rely upon Dr Barton’s report. Had he done so, I would have favoured the diagnoses made by the balance of the medical practitioners who have examined Mr Koutroumanis in preference to Dr Barton’s views.
[13]DCB 12-24.
Consequences of injury
27 Mr Koutroumanis has suffered more severe symptoms of pain and restriction of movement in his left shoulder than in the right shoulder. Counsel for the plaintiff conceded that the consequences of the injury to the right shoulder, when taken alone, would not satisfy the “very considerable” threshold test. However, he submitted that the consequences of the left shoulder injury did satisfy that test. Further, he submitted that it was appropriate for me to look at the consequences of both shoulder injuries together in assessing the consequences to Mr Koutroumanis of those injuries. I shall return to this issue later in these reasons.
28 I am satisfied on the evidence that Mr Koutroumanis has suffered a serious injury to his left shoulder. The consequences of that injury are:
(a)He suffers pain in the shoulder. It is located on the top of the shoulder and spreads towards the neck. His range of movement of the left upper arm and shoulder is very restricted.
(b)Any movement of his left arm away from his upper body increases his pain. He cannot raise his left arm above chest height. By this I mean that he is unable to move his upper arm above chest height.
(c)He is able to flex his elbow in the normal manner. He is just able to get his left hand to his head.
(d)He is only able to hold relatively light weights with his left hand. He is not able to hold such weights for long.
(e)He is unable to lie on his left side for more than a few minutes because of increased pain. He wakes several times a night with left shoulder pain. He often has to get up during the night and sit on the couch, which he finds more comfortable.
(f)His left shoulder is stiffer in the morning. Cold weather increases his level of pain.
(g)He is unable to do most household chores involving the use of his left arm. Previously, he had painted the interior of his home. He would be quite unable to do so now. He previously did all the basic maintenance around the house but is unable to do much now.
(h)Previously, he was able to look after the garden and had a healthy vegetable garden and citrus trees. He was able to dig, plant and prune without difficulty. He is unable to tend to the garden now save for doing extremely light weeding tasks for short periods.
(i)He is unable to mow the lawn or operate a Whipper-Snipper as he previously did. The use of such vibrating tools causes him additional pain.
(k)He was previously a regular attendee at two Greek clubs in Melbourne where he regularly enjoyed Greek dancing. Such dancing involved him raising both his arms out wide. He is not able to do this now.
(j)He has been unable to work in any meaningful way since December 2008. He misses his work.
29 In cross-examination, Mr Koutroumanis was shown five DVD films depicting him on various dates between December 2009 and December 2011. These films showed Mr Koutroumanis walking in what appeared to be an unrestricted manner from his home to the local park, visiting various supermarkets, accompanying his young grandson and pushing him on a swing in the park, assisting his wife starting a Whipper-Snipper with his right arm, and various other activities. It was my view that none of the activities shown in the DVD films showed Mr Koutroumanis using his left hand or arm in any vigorous activities. He was shown lifting what appeared to be light bags of shopping. At no time did the films depict him raising his left arm to any degree. In one of the early films, he was shown carrying his grandson (then aged about one year old) on his right hip. Although the DVD did not actually show Mr Koutroumanis picking the boy up, it can be inferred that he would have used both hands to lift him.
30 Counsel for the defendant submitted that the films depicted Mr Koutroumanis leading a lifestyle normal for a sixty eight year old retiree. I do not accept that a person of Mr Koutroumanis’ age would ordinarily be expected to be occupying his time performing the restricted activities depicted in the DVD films. I consider that many persons of his age lead an active working life with active recreational activities.
31 With one exception, I do not consider that the DVD films depicted Mr Koutroumanis performing any actions which he had indicated in his evidence or in the histories provided to any doctor that he was unable to do. The exception in question relates to the range over which he is able to move his right shoulder. His evidence was that he has a restricted range of right shoulder movement, although not so restricted as that of the left. In the witness box he demonstrated a limited range of right shoulder movement. In the DVD film taken on 23 October 2010, Mr Koutroumanis was shown reaching relatively high with his right hand, well above the height of his head, to close the hatchback door of his motor vehicle. He appeared to do so without restriction. He acknowledged that he was able to do so. He gave no evidence of any painful repercussions of performing that act. He was not re-examined in relation to this.
32 Nevertheless, I am not satisfied that the DVD films assist the defendant in its submission that the consequences of the injury to this left shoulder are other than very considerable.
33 Notwithstanding that I have found that the injury to the left shoulder constitutes a serious injury as defined in the Act, it is appropriate to also consider the injury to Mr Koutroumanis’ right shoulder. His counsel conceded that, on its own, that injury would not meet the “very considerable” test. I agree.
34 However, he submitted that I should consider the consequences of the combined injuries to the left and right shoulders as constituting the requirement level of impairment of body function.
35 Counsel for the defendant submitted that the Court was not permitted to aggregate the consequences of the injuries to his left and right shoulders. Counsel relied upon the decision in Lu v Mediterranean Shoes Pty Ltd & Ors.[14] There, Chernov JA said:
“[26] No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant must demonstrate that that injury is a “serious” one. But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a “serious injury” or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.
[27] … Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term … .”[15]
[14](2000) 1 VR 511.
[15]Lu v Mediterranean Shoes Pty Ltd & Ors at paragraphs 26-27
36 In the same case, Buchanan JA said:
“If injuries are the result of separate events, each giving rise to a cause of action for damages, each injury is to be considered separately for the purposes of determining whether any resulting impairment or loss of a body function enables each injury to meet the definition. The only relevant impairment or loss of a body function is that resulting from the defendant's wrongful act or omission the subject matter of the plaintiff's cause of action.”[16]
[16]Lu v Mediterranean Shoes Pty Ltd & Ors at paragraph 5
37 Here, Mr Koutroumanis relies upon bilateral shoulder injuries arising from the same cause of action, rather than separate incidents. Consequently, I do not find the above statements in Lu of assistance.
38 The issue of whether the consequences of bilateral injuries can be aggregated has been previously considered in this Court. See Raimondo v Hoi Yeung;[17] Giuliano v Red Robin Pty Ltd;[18] Wright v Mount Edisar;[19] Ristovska v VOA Webco Pty Ltd[20] and De Luca v Pinkey & TAC.[21]The Court has expressed differing views.
[17][2005] VCC 1400
[18][2008] VCC 1805
[19][2006] VCC 410
[20][2010] VCC 152
[21][2007] VCC 1307
39 In Wright, Giuliano and Ristovska, aggregation of bilateral injuries to hands and wrists was permitted. In each case, the Court referred to the worker sustaining injury using both hands in manual work, and found that it would be difficult to accept that this did not represent the use of a single body function.[22]
[22]See Ristovska at paragraph [257]
40 In Raimondo, the Court was satisfied the plaintiff had suffered a serious injury on the basis of bilateral shoulder injuries.
41 In De Luca, the Court held that bilateral injuries to the plaintiff’s legs could not be aggregated.
42 In a case involving bilateral injury to hands, wrists or shoulders as a consequence of the use of both upper limbs in the course of employment and involving the one cause of action, I would consider such aggregation to be permissible. The upper limbs are regularly used together to perform various “body functions”, such as the simultaneous physical handling, manoeuvring or adjustment of items of equipment.
43 For the reasons expressed above, I am satisfied that the injury to Mr Koutroumanis’ left shoulder, when considered on its own, is a “serious injury” as defined. Further, I am also satisfied that the consequences of his bilateral shoulder injuries, when viewed together, satisfy the more than considerable test.
Conclusion
44 There will be leave to Mr Koutroumanis to commence proceedings for the recovery of damages in respect of injury suffered by him in the course of his employment with the defendant.
45 I shall hear the parties as to costs.
- - -
0
4
0