Kumar v Alton West Footscray Pty Ltd and Anr

[2012] VCC 403

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-09-06000

LALIT KUMAR

Plaintiff

v

ALTON WEST FOOTSCRAY PTY LTD

-and-

VICTORIAN WORKCOVER AUTHORITY

Defendant

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JUDGE:	His Honour Judge Misso
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2012
DATE OF JUDGMENT:	13 April 2012
CASE MAY BE CITED AS:	Kumar v Alton West Footscray Pty Ltd & Anr
MEDIUM NEUTRAL CITATION:	[2012] VCC 403

REASONS FOR JUDGMENT

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SUBJECT: ACCIDENT COMPENSATION

CATCHWORDS: serious injury - injury to the right shoulder - whether the consequences in terms of pain and suffering were serious
LEGISLATION: Accident Compensation Act 1985, s.134AB(38)
CASES CITED: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Sutton v Laminex Group [2011] VSCA 52, and Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260
RULING: the plaintiff have leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering arising out of his employment with the first defendant

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Collis QC With Ms K Gladman	Vincent Verduci & Associates
For the Defendant	Ms C Boyle	Lander & Rogers, Lawyers

HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed 17 December 2009 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of the course of his employment with the first defendant. 

2       The plaintiff seeks leave to bring such a proceeding for pain and suffering.

3       Mr B Collis QC appeared with Ms K Gladman of Counsel for the plaintiff. Ms C Boyle of Counsel  appeared for the defendant. 

4       The body function which the plaintiff says has been lost or impaired is the plaintiff’s right shoulder. 

5       The following evidence was adduced during the hearing:

·     The plaintiff gave evidence and was cross-examined;

·     The plaintiff tendered his Court Book (“PCB”), pages 12-17; 36-39; 42A-65B, and from the defendants Court Book ("DCB") pages 1-2 and 7-17:  Exhibit A;

·     The defendants tendered their Court Book pages 3-6: Exhibit 1.

6       The application is brought under the definition of “serious injury” contained sub-s. (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

The Statutory Scheme

7       The relevant considerations which apply to such an application are as follows:

(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.

(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.

(c) Subsection 38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.

(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.

(e) In conformity with Barwon Spinners Pty Ltd and Others v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s. (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

[1](2005) 14 VR 622, at paragraph 11

8 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Issues

9       The sole issue ventilated by the parties was whether the impairment of the function of the plaintiff's right shoulder produced pain and suffering consequences which met the statutory test.

The Plaintiff's Background

10      The plaintiff was born on 14 February 1982 in India. He ceased all formal academic study at age 19 years when he abandoned an Arts course after two years. He subsequently commenced work in a jewellery shop as a salesman.

11      The plaintiff migrated to Australia in February 2007. He is a married man. The plaintiff and his wife have two children. The eldest is seven years of age. The youngest is 14 months old. They live in India with the plaintiff's family.

12      Following the plaintiff's arrival in Australia he worked in a number of different jobs before commencing work with the first defendant.[2]

[2]PCB 13-14 and transcript 8-9

The Injury

13      The plaintiff commenced employment with the first defendant in about November 2007. The first defendant had a contract with a firm known as Plastic Schuetz. The firm manufactured plastic tanks. The plaintiff worked as a labourer on a production line and on a blow moulding machine.

14      The actual tasks which the plaintiff implicates in the production of the injury to his right shoulder were manually pulling tanks from the machine onto a work table; using a hammer to chip away excess plastic from the tanks, and undertaking tasks overhead with his arms outstretched.[3]

[3]PCB 14-15 and transcript 11

15      What subsequently occurred, in terms of the production of the injury to the plaintiff's right shoulder, and in the medical treatment he obtained are not particularly controversial. Neither Mr Collis nor Ms Boyle submitted otherwise, and therefore, I intend to only set out a brief summary of the medical evidence before turning to the real issue raised in this proceeding, that being, whether the plaintiff's pain and suffering consequences meet the statutory test.

The Plaintiff’s Medical Treatment

16      I should start by referring to the plaintiff's evidence relevant to the production of the injury to his right shoulder. I accept his evidence that he first experienced significant symptoms of pain in his right shoulder in January 2008 which progressively worsened.[4]

[4]Transcript 15 and 16

17      The plaintiff then saw Dr Chmielewski, general practitioner, on 6 March 2008. On examination Dr Chmielewski found significant restriction of movement in the plaintiff's right shoulder produced by pain. He diagnosed a rotator cuff injury. He advised the plaintiff to rest. He prescribed him analgesics and anti-inflammatory medication. He certified him as unfit for any duties from 14 March 2008 to 25 March 2008. On 26 March 2008 he certified the plaintiff as fit to perform alternative duties.[5] However, the plaintiff did not return to work with the defendant.

[5]PCB 45- 46

18      Dr Chmielewski referred the plaintiff to Mr Hooper, orthopaedic surgeon. The plaintiff first saw Mr Hooper on 15 November 2008. Mr Hooper's reports are short on detail. More of an understanding of what treatment he provided to the plaintiff is to be obtained by reading Mr Hooper's reports together with those of Dr Chmielewski.

19      Dr Chmielewski referred the plaintiff to undergo an ultrasound. It was undertaken on 10 October 2008. It demonstrated a subacromial bursitis with impingement.[6] When Mr Hooper examined the plaintiff he considered that his examination demonstrated signs and symptoms of impingement in the plaintiff's right shoulder. He gave the plaintiff an injection into his right shoulder which improved the plaintiff's symptoms by about twenty percent. He gave the plaintiff a second injection.[7] Initially, Mr Hooper instructed the plaintiff to undertake an exercise program. On a later review Mr Hooper noted that the plaintiff symptoms had not changed. He advised the plaintiff to have surgery. He performed an arthroscopic subacromial decompression of the plaintiff's right shoulder on 18 February 2009.[8]

[6]PCB 43

[7]PCB 56

[8]PCB 53

20      Mr Hooper subsequently reviewed the plaintiff. He considered that the plaintiff's symptoms in his right shoulder had not settled as he expected might occur. He referred the plaintiff to have an MRI scan. It demonstrated subacromial subdeltoid bursitis and granulation of tissue. Mr Hooper agreed with the findings on the MRI scan.[9] He considered that the bursitis might settle with conservative treatment, and if it did not then he considered that a further arthroscopic procedure might be warranted. That is what occurred. The plaintiff told Mr Hooper that he was experiencing pain 24 hours per day and pain at night.[10] Mr Hooper performed a second arthroscopic procedure on the plaintiff's right shoulder on 8 May 2011.

[9]PCB 54

[10]PCB 60(a)

21      Mr Hooper's reports, post dating the second arthroscopic procedure, are uninformative regarding what the second arthroscopic procedure involved. I infer, however, that it was performed to re-address the source of the plaintiff's pain, that is, an impingement of his right shoulder.

22      Mr Hooper last saw the plaintiff on 17 November 2011. In a report dated 21 July 2011 he described the plaintiff's condition as follows:

"His condition, though it may improve over the ensuing months, he will be left with a permanent disability involving his shoulder which will preclude him doing heavy work or using his arm above shoulder level. He is quite capable of doing light work."[11]

[11]PCB 60(c)

23      In his last report dated 3 February 2012 his opinion had not changed.[12] Dr Chmielewski was of much the same opinion as Mr Hooper.[13] Dr Stockman, rheumatologist examined the plaintiff on a medico/legal basis on 29 July 2010 and 31 January 2012. He was also much of the same opinion as Mr Hooper.[14]

[12]PCB 60(d)

[13]PCB 52(b)

[14]PCB 65(b)

24      Dr Yong, occupational physician examined the plaintiff on behalf of the defendant on 16 April 2008, and subsequently undertook a work site assessment on 18 April 2008. His opinion regarding diagnosis and prognosis is of limited value because he examined the plaintiff prior to the treatment provided by Mr Hooper. However, there is nothing in his opinion which is at odds with the opinions of Mr Hooper, Dr Chmielewski and Dr Stockman.[15]

[15]DCB 7-17

Pain and Suffering Consequences

25      I have carefully considered the plaintiff's evidence, the medical evidence, and the submissions made by Mr Collis and Ms Boyle. I am satisfied that the pain and suffering consequences of the impairment of function of the plaintiff's right shoulder meet the statutory test.

26      Ms Boyle submitted that the injury suffered by the plaintiff was a simple one, and that the treatment provided to the plaintiff was also simple.[16] I do not agree.

[16]transcript 49-51

27      What is obvious from an analysis of the plaintiff's evidence and the medical evidence is that the plaintiff experienced pain and restriction of movement in his right shoulder from January 2008 and throughout the medical treatment he was provided by Dr Chmielewski and Mr Hooper. That treatment also involved active physiotherapy and prescription of analgesic and anti-inflammatory medication.

28      I assume that Ms Boyle's use of the term "simple" was intended to be synonymous with modest. I do not accept that the use of that term is accurate. To describe the medical treatment comprising certification as unfit for work and then fit for alternative duties; prescription of medication; referral for active physiotherapy treatment; two injections; two arthroscopic procedures, and the continued need for medication, do not suggest a simple injury and simple treatment, but rather certification and treatment for an actively symptomatic and disabling injury.

29      I accept the plaintiff's evidence that he continues to suffer pain in his right shoulder;[17] that he cannot sleep on his right side;[18] that he needs to take medication;[19] and that he is restricted to undertaking light work of the kind he is presently performing in a nursing home in Queensland.[20] The plaintiff's work is light work which does not involve the requirement to undertake lifting and manoeuvring of patients without manual or mechanical assistance. It was not my impression that it is work which would test his right shoulder.[21]

[17]Transcript 17-18

[18]Transcript 22-25 and 41-42

[19]Transcript 31

[20]Transcript 29 and 32-33

[21]Transcript 32-33

30      The plaintiff's affidavits and oral evidence do not disclose that he had any particular hobbies or special interests which have been affected by the impairment of the function to his right shoulder.[22] His description of how his social, domestic and recreational pursuits have been affected was rather general and non-specific. However, the impression I was left with was that he has pain and restriction of movement in his right shoulder which impact upon his general activities even as modest as they apparently are.

[22]Transcript 38-39

31      I do not accept the fact that the plaintiff has not seen a medical practitioner since his move to Queensland, and that he uses over-the-counter medication derogates from the seriousness of his pain and suffering consequences. It is very obvious from the reports of Mr Hooper that there was nothing more he could offer the plaintiff in terms of active medical treatment. That being so the fact that the plaintiff has not seen a medical practitioner in Queensland is not a factor of any significant relevance. Nor do I accept the fact that the plaintiff is working in light work of a kind contemplated by Mr Hooper, Dr Chmielewski and Dr Stockman derogates from the seriousness of his pain and suffering consequences. The medical evidence has always demonstrated that the plaintiff has a residual capacity to work, with restrictions, which he has shown a capacity to undertake.

32      The pain and suffering consequences which I accept the plaintiff has suffered cannot be underestimated in terms of their interference with his life. Persistent pain; interference with sleep; the necessity to use medication; the necessity to restrict one's physical activities, and to be restricted to light manual work are the sort of restrictions which resonate as sufficient to meet the statutory test.[23] Furthermore, in measuring what the plaintiff has lost as opposed to what he has retained it seems to me that he has lost a significant level of function in his right shoulder with consequences which I have outlined above.[24]

[23]Sutton v Laminex Group [2011] VSCA 52 per Tate JA at paragraphs 46-50

[24]Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260 per Ashley JA at paragraph 27

33      In the end I am satisfied that the plaintiff suffered an injury to his right shoulder which has permanently impaired the function of his right shoulder with pain and suffering consequences which meet the statutory test.

Conclusion

34 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB (16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.

35      After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

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