Krsman v Venture DMG
[2014] VMC 31
•12 DECEMBER 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No.E10196022
| VASILIJA KRSMAN | Plaintiff |
| v | |
| VENTURE DMG PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 2 & 3 DECEMBER 2014 |
DATE OF DECISION: | 12 DECEMBER 2014 |
CASE MAY BE CITED AS: | KRSMAN v VENTURE DMG |
REASONS FOR DECISION
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Catchwords: S109 rejection of claim for alleged injuries to right elbow and right shoulder. Worker in receipt of payments for left shoulder injury – Jurisdictional issue raised – s 102 special defence relied on.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms MacTiernan | Zaparas Lawyers |
| For the Defendant | Mr Clarke | Russell Kennedy Lawyers |
HIS HONOUR:
1 Mrs Krsman is aged 53 and commenced employment with the defendant in April 2003. She has performed various roles in the course of her employment including that as a process worker, machine operator and quality control inspector.
2 Mrs Krsman is currently in receipt of weekly payments of compensation in accordance with the Accident Compensation Act in relation to left shoulder injuries which arose out of or in the course of her employment. The dispute before the court relates to right elbow and shoulder injuries she alleges were also sustained throughout the course of her employment. She ceased work on 27 November 2012 and her claim in respect to her left shoulder injury was accepted by the defendant on 9 December 2012. She did not lodge a workcover claim in respect to her alleged right elbow and shoulder injuries until 16 April 2013 for which the defendant rejected liability pursuant to s 109 of the Act on 29 May 2013.
3 At the commencement of the hearing the defendant sought a ruling on a preliminary jurisdictional issue and relied on the decisions in General Motors-Holden’s Ltd v Mete[1] and Robinson v SPI Electricity Ltd[2] in that the claim form lodged by Mrs Krsman and dated 16 April 2013 relied on a single date of injury and not what is now alleged in the pleadings that the injury occurred ‘throughout the course of employment’. I ruled that the court did have jurisdiction to consider the ‘throughout the course of employment’ allegation as the claim form clearly relied on employment activities occurring over a period and not in a single incident or incidents. The claim form dated 16 April 2013 noted that the injuries were: “right shoulder and right elbow”, the date of injury occurring in “2011” and the explanation given was: “I sustained the above injuries due to the general nature of my work as a process worker/machine operator in the course of my employment with the employer”. The defendant also relied on the ‘special defence’ contained in s 102 but for reasons that I will explain reliance on this defence is unsuccessful.
[1] (1986) 1 Vic ACR 41.
[2] 3 October 2012.
4 Mrs Krsman gave evidence through the assistance of a Serbian interpreter and the parties tendered numerous documents, medical records and reports.
5 Mrs Krsman gave evidence that she performed numerous tasks during the course of her employment with the defendant including that of a process worker, machine operator and quality control inspector. She gave evidence that she is 156 cm in height, left hand dominant and told the court that she worked on afternoon shift from 3 p.m. to 11 p.m. with a 30 minute tea break at 7.30 p.m. Mrs Krsman told the court that until 2011 her duties included; working in the paint shop, on the moulding line and performing quality control inspection work. She said her duties necessarily involved lifting boxes/tubs weighing between 5kg and 20 kg containing Holden, Ford and Toyota plastic parts. She said that whilst working on the moulding line she would lift the plastic boxes/tubs containing 30 plastic pieces onto pallets, stacking 6 rows and five high. She estimated that she would complete 4-6 pallets each day. She said that she began to develop pain in her left and right shoulders, but mainly the left shoulder, in early 2011. Mrs Krsman said that she continued working at that stage without complaint as she thought the pain would go away. She said that she subsequently complained about the pain in her shoulders to her supervisor, Paul Hook and team leader, Sadiq.
6 Mrs Krsman gave evidence that in February 2012, he duties were changed to working on the moulding line, which contained 11 different machines, for 5 ½ hours and then performing quality inspection work in the stock room for the remaining 2 ½ hours between approximately 9 p.m. and 11 p.m.. She explained that her job on the different moulding machines required her to use pliers to cut and a scalpel to trim the plastic parts dropped onto her bench by a robot, sand the rough edges where necessary and then place the 30 plastic pieces into boxes/tubs which she would then stack onto pallets. She told the court that the weight of the tubs would vary from approximately 5 kg to 17 kg depending on the particular plastic parts and machine she was working on at the time. She said that she would stack the tubs five high and because of her small stature it required her to lift the 5th tub above head height. She told the court that her duties were repetitive and involved using her hands and arms 90% of the time and that the most difficult aspects of her work which she believes contributed to her sustaining injury was the lifting, pushing and pulling of the boxes/tubs, sanding the parts and using the pliers to cut the excess plastic. She also said the speed of the machines was greater than that recommended in the manuals.
7 Mrs Krsman told the court that she took long service leave between June and 12 August 2012 and travelled to Bosnia with her husband. She said that during this period she did not experience any ongoing shoulder pain. She said that she returned to work on 13 August but was experiencing flu symptoms so remained off work until 20 August before returning to work on normal duties.
8 Mrs Krsman said that on 4 September 2012, she experienced left shoulder pain after taking a pallet of boxes/tubs to the 2nd level with a hand trolley and lifting and then pushing the boxes/tubs weighing up to 20 kg onto a conveyor system. She said that she did not report the incident at the time because she thought the pain would go away. She said she also experienced right shoulder pain at that time. She told the court that she saw Dr Vujosevic on 8 September, who recommended that she undergo an ultrasound and x-ray of the left shoulder.
9 Mrs Krsman told the court that on 12 September, whilst lifting a tub onto the fifth level of a pallet she experienced further left shoulder pain. The records reveal that an ultrasound was performed on 13 September and indicated a full thickness tear of the left supraspinatous tendon. An ultrasound performed on 20 September revealed a partial thickness tear of the right supraspinatous tendon and mild lateral epicondylitis.
10 Mrs Krsman gave evidence that she remained off work until 8 October 2012 and then returned to normal duties. She said that her doctor suggested she only perform light duties but she said that she knew she would be sacked if she presented her employer with a light duties certificate. She told the court that she ceased work on 27 November because she was unable to cope with the pain in her left shoulder and was also experiencing some right shoulder pain at the time. Mrs Krsman told the court that she lodged a workcover claim on 9 December 2012 in relation to her left shoulder for which liability was accepted by the defendant and she ultimately underwent a left shoulder arthroscopy, rotator cuff repair and decompression performed by Mr Carr, Orthopaedic Surgeon on 28 June 2013.
11 Mrs Krsman told the court that she eventually lodged a workcover claim form in relation to her right elbow and shoulder condition on 16 April 2013, because she had been “neglecting my right arm and shoulder because I was having bigger problems and pain with my left shoulder”. She also told the court that in July 2013, she was performing physiotherapy exercises at the request of Mr Cvetkovic, Physiotherapist, in relation to her left shoulder which required her to cross her arms in front of her chest with her right arm supporting her left arm and slowly raising them when she felt a “cracking in her right shoulder”. Mrs Krsman said that she attended Dr Vasic, General Practitioner, who took over the management of her condition because Dr Vujosevic ceased treating workcover patients and she was referred her to Mr Carr, who placed her on the waiting list for operative treatment.
12 During cross examination, Mrs Krsman disputed that she was only required to lift the boxes/tubs to shoulder height and was adamant that the 4th box/tub was level with the top of her head with the 5th box/tub being above her head height. Mrs Krsman agreed that part of her quality control duties involved counting parts and boxes and recording the information and also agreed that the photos tendered were an accurate depiction of her work duties. She also agreed that the ‘average weight’ of the boxes/tubs she was required to lift were approximately 5-6 kgs. Mrs Krsman was questioned at length about her failure to tell her treating doctors of her right shoulder pain when they recorded a history of left shoulder pain. She was consistent in her responses that she was experiencing more pain and discomfort in her left shoulder than her right and was more concerned about it rather than her right shoulder and was “pre-occupied” with it. She said that the level of pain she experienced in her right shoulder was dependent on the particular job she was performing at the time.
Medical Evidence
13 The medical records of Dr Vujosevic indicate that Mrs Krsman attended on 29 December 2010 complaining of neck, back and multiple joint pains for which subsequent x rays revealed mild degenerative changes with narrowing at C4-5 and C5-6. On 21 June 2011, the records note cervical spine mild degenerative changes, early osteoarthritis in the hands, left shoulder rotator cuff disorder and complaints of paraesthesia, more in the left than right fingers. On 9 February 2012, it is noted that Mrs Krsman was complaining of multiple joint pain and was not coping at work with a similar notation on 23 and 24 May 2012. On 8 September 2012, it is recorded that Mrs Krsman attended with complaints of a sore left thumb and left shoulder as a result of heavy lifting at work with x rays and an ultrasound being arranged.
14 The X ray results on 13 September indicate no bony injury or lesion with the ultrasound revealing an abnormal supraspinatous tendon with a full thickness tear of 17mm with associated subacromial bursitis and tennosynovitis of the flexor pollicis longus tendons on the left. On 14 September, the records indicate that Dr Vujosevic discussed the results with Mrs Krsman and obtained a history from her that her work involved heavy lifting and was hard. On 17 September, Dr Vujosevic obtained a history from Mrs Krsman that she was experiencing right shoulder and elbow tenderness and accordingly arranged for her to undergo an x ray and ultrasound of the right elbow and shoulder. An x ray of the right shoulder on 20 September 2012 indicated no bone or joint abnormality with no rotator cuff calcification. The ultrasound indicated a small partial thickness tear of the supraspinatous tendon of 5 x 4mm. It also revealed mild thickening of the subacromial subdeltoid bursa with soft tissue density and fluid impinging on the ligament. An x ray of the right elbow revealed no bone or joint abnormality and no soft tissue calcification but the ultrasound of the right elbow revealed mild tendinosis of the common extensor tendon with a conclusion by the Sonographer that Mrs Krsman was suffering from mild lateral epicondylitis.
15 The records reveal an attendance with Dr Vujosevic on 13 November 2012, with a notation that; she was crying, that she could not work because of the pain, that her shoulder injury was related to work because of the heavy lifting, that she could not stop working because of her mortgage and was asking about workcover. The records reveal she then attended Dr Vasic on 18 November regarding her left shoulder pain and that she arranged for her medical records to be transferred from Dr Vujosevic to Dr Vasic. Subsequent attendances on Dr Vasic involved left shoulder pain and symptoms of depression and on 7 March 2013, Dr Vasic recorded a history of left and right shoulder pain. On 24 March, Mrs Krsman requested a workcover certificate for her right elbow and shoulder and Dr Vasic observed redness around the right elbow medial epicondyle and limited right arm abduction.
16 A number of medical reports prepared by Dr Vasic were tendered. In addition to the information recorded in the clinical notes she reported that Mrs Krsman was referred for physiotherapy treatment, commenced on antidepressant medication and was referred for psychological and psychiatric counselling.
17 Reports from Dr Cvetkovic, Physiotherapist were also tendered. He reported that he first saw Mrs Krsman on 22 August 2013 on referral from Mr Carr following surgery on her left shoulder on 8 June 2013. He noted that he obtained a history of bilateral shoulder pain for a number of months prior to 12 September 2012. His reports detail the physiotherapy treatment that Mrs Krsman has received since August 2013 and in his latest report dated 14 July 2014 he noted that she has an extensive home exercise program including strengthening against resistance and is of the opinion that due to her lack of progress she may benefit from another hydrodilation or a guided cortisone injection to “kick start” the final stages of her recovery process. A report was tendered from Ms Turner, Physiotherapist, from Southern Health. She reported first seeing Mrs Krsman on 28 November 2012 (one day after ceasing work) complaining of bilateral shoulder pain with her main complaint being her left shoulder.
18 Medical records and reports from Mr Carr, were tendered. In March 2013, he suspected that the condition of Mrs Krsman’s right elbow and shoulder, as confirmed on ultrasound on 20 September 2012, were related to the repetitive work she performed as part of her regular duties in the factory. He recommended that she undergo corticosteroid injections. In July 2013, he noted that she underwent surgery on her left shoulder in the form of a rotator cuff repair and subacromial decompression. On review in August 2013, he reported that on 22 July whilst performing assisted range of motion exercises for her recent rotator cuff surgery on her left shoulder, her right shoulder became more painful. He noted that a recent ultrasound demonstrated an increase in size of the tear of the supraspinatous from 5mm to 7mm and he administered a subacromial corticosteroid injection. He organised for an MRI scan to be performed on her right shoulder on 26 September 2013 which demonstrated a multitude of pathology including a full thickness tear of the anterior fibres of the supraspinatous tendon measuring 7.5mm x 8.5mm, with moderate subacromial bursitis and degenerative changes within the AC joint, a degenerative labral tear and tendinopathy of the biceps tendon and biceps anchor. Mr Carr recommended surgery and placed her on the public waiting list.
19 When asked by lawyers acting on behalf of Mrs Krsman to express an opinion concerning causation in relation to the right shoulder condition, Mr Carr stated; “The consistency of her condition which is stated could possibly be work related as her role is fairly labour intensive requiring repetitive actions on a daily basis and certainly could be a contributing factor to her condition. This is however rather difficult to confirm as many individuals with more sedentary jobs can also present with similar shoulder findings. Secondly, her role of employment could definitely cause further aggravation or exacerbation or deterioration of any pre-existing shoulder condition”.
20 Mrs Krsman tendered two medical reports from Mr Kossmann, Orthopaedic Surgeon, who assessed her on 27 March 2014. After obtaining a history and reviewing all reports provided to him he opined that Mrs Krsman suffered injuries to her right shoulder and elbow as the consequence of overusing her right upper extremity to compensate for the left one and therefore employment had been a significant contributing factor.
21 Mrs Krsman also relied on a medical opinion from Mr Flanc, Vascular and General Surgeon, who assessed her on 3 October 2014. After conducting an examination, reviewing the radiological and investigation reports and considering the medical reports with which he was provided, Mr Flanc opined that the nature of the work performed by Mrs Krsman significantly aggravated a pre-existing albeit asymptomatic degenerative condition of the right shoulder which has also been contributed to by the “exercise incident” in mid 2013. He did not comment on her right elbow condition and it appears that Mrs Krsman did not make any complaint regarding the condition of her right elbow.
22 The defendant tendered medical reports from Mr White, Consultant Surgeon, dated 6 February 2013, Dr Davison, Occupational Physician, dated 21 May 2013 and 1 May 2014 and Dr Baynes, Occupational Physician, dated 30 October 2013 and 5 December 2013. Mr White obtained a history from Mrs Krsman that as at 6 February 2013 she was experiencing left arm and shoulder pain and sleep issues. He noted that she denied any prior problems with her shoulders but suspected there was some issue with discomfort in her shoulders in 2011. On examination, he recorded a significant less range of movement of her left shoulder and supported the relationship between her employment and her left shoulder injury without expressing an opinion regarding her right elbow and shoulder.
23 In Dr Davison’s first report he indicated that he was provided with the report of Mr White together with a claim report dated 2 May 2013 and certificate dated 24 April 2013. However, in his second report he noted that he was initially provided with a Circumstance Report when he first assessed her which he did not refer to in his first report or list in the schedule to his report. It also appears that he had a copy of a report from Mr Carr to Dr Vasic dated 20 March 2013 which was not listed in the attached schedule. No explanation was provided for this failure or oversight and the Circumstance Report referred to was not tendered.
24 In his first report, he noted that it was difficult to obtain a history as to the first onset of symptoms in her right shoulder despite the presence of an interpreter who was used “sparingly” and commented that Mrs Krsman she was a vague historian. He did state that it appeared she began to develop symptoms in both shoulders in late 2010. He obtained a history that Mrs Krsman did not experience any right shoulder pain whilst on long service leave between June and August 2012 but then experienced pain a few days after returning from her leave. Dr Davison stated that he found no evidence of a right elbow injury and that she exhibited signs consistent with abnormal illness behaviour. He reported that; “partial thickness tearing in the supraspinatous is a very common finding on ultrasound examination in both asymptomatic and symptomatic adults over the age of 50 years. A partial tear could be expected in 50% of individuals on routine ultrasound scanning. The clinical significance of the partial tear is therefore doubtful. I note there is also a partial tear on the left side”.
25 Dr Davison opined that the right shoulder condition is most probably constitutional and that employment was not a significant contributing factor on the basis that the history he obtained; suggested that packing was not her full time role but rather she was a quality control officer and may have undertaken packing intermittently and that only 20% of a pallet stacked high in five rows would be above the claimant’s shoulder height and the boxes weighed only 5 kg, being in the light range. Dr Davison also opined that her right shoulder symptoms may represent a deterioration of a pre-existing condition.
26 Dr Davison re-examined Mrs Krsman on 1 May 2014. He was provided with numerous medical and investigations reports. He noted that Mrs Krsman told him she was required to “lift boxes which weighed 16-17 kg” however noted that a “circumstances report provided to me when I first assessed Mrs Krsman that a box of parts weighed approximately 5 kg”. He reported that Mrs Krsman reported developing left and right shoulder pain and right elbow pain “at the same time”. After noting that; she had undergone right shoulder surgery on 28 June 2013; that an ultrasound performed on 24 July 2013 indicated a full thickness tear of the right supraspinatous tendon; an MRI scan on 26 September 2013 indicated a tear and other pathology; and, noting “pain behaviours” on examination, he opined that Mrs Krsman had a mild impairment of right shoulder function but that the radiological findings did not correlate particularly well with the examination findings. Dr Davison concluded that there was no evidence of an injury to the right elbow, that Mrs Krsman suffers from a right rotator cuff syndrome with mild restriction of shoulder movement, and that on balance, employment was not a significant contributing factor. He also concluded that on the basis that she did not report symptoms in the right shoulder when ceasing work, that she did not mention her right shoulder symptoms when submitting her claim, that she did not complain to Dr White on 6 February 2013 of right shoulder symptoms and had a normal range of movement at that time, that it was unlikely she suffered any aggravation, acceleration or exacerbation in respect of any pre-existing condition of the right shoulder.
27 Dr Baynes assessed Mrs Krsman principally in relation to her left shoulder claim and her ongoing entitlement to weekly payments in relation to that injury but he did obtain a history from her of pain in the left and right shoulders since early 2011. On examination, he noted a normal range of movement with pain at the extremes of movement.
Conclusion
28 I found Mrs Krsman to be an honest and credible witness. I accept her evidence that her duties involved repetitive work using her left and right arms and it involved occasional lifting of heavy boxes/tubs but regular lifting of boxes/tubs weighing approximately 5-6 kg. I also accept her evidence that stacking pallets and in particular, lifting of the boxes/tubs to the 5th layer necessarily involved lifting above head height which was difficult for her having regard to her small stature.
29 I accept her evidence that she began to experience pain in her left and right shoulders in early 2011 and I also accept her unchallenged evidence that she complained of this pain to her supervisor and team leader and accordingly, the defendant’s reliance on s 102 is not successful. I also accept her evidence that her failure to make regular complaints to her treating doctors about her right shoulder symptoms or to include this condition on her original claim form in December 2012 was due to the fact that she was “neglecting my right arm and shoulder because I was having bigger problems and pain with my left shoulder” and she was “pre-occupied” with them.
30 I find that as a consequence of the duties performed by her in the course of her employment she has aggravated an underlying condition leading to the development of a tear of the right supraspinatous tendon and associated bursitis of the right shoulder to which employment has been a significant contributing factor. I therefore accept the opinions of Mr Carr and Mr Flanc on the issue of causation. I also accept the opinion of Mr Carr that as a consequence of her injury she requires right sided rotator cuff repair surgery. I find that her work activities caused the injury to her right shoulder, by way of aggravation, acceleration and exacerbation of the pre-existing condition which was further aggravated when undertaking the recommended physiotherapy treatment exercises for her compensable left shoulder injury in July 2013. Therefore, on the issue of causation, I do not accept the opinions of Mr White, Dr Davison or Mr Kossmann.
31 Whilst accepting that Mrs Krsman also developed mild right sided epicondylitis due to the repetitive work performed by her and as confirmed by way of ultrasound on 17 September 2012, she made no complaint of ongoing symptoms when giving evidence and there has been a lack of recent complaint of pain to her treating doctors. On 27 March 2014, she made no complaint of ongoing right elbow pain to Mr Kossmann and she also told Dr Davison on 1 May 2014 that her right elbow was “not too bad” and on examination he found no obvious wasting, swelling or deformity, localised tenderness and testing for medial and lateral epicondylitis was negative. As mentioned, she also made no complaint of ongoing right elbow symptoms to Mr Flanc when he examined her on 3 October 2014. I find that this injury has now resolved.
32 Accordingly, I find that Mrs Krsman sustained injuries to her right elbow and shoulder which arose out of or in the course of her employment with the defendant. The Notice of rejection dated 29 May 2013 is set aside.
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