Liang v Feltex Carpets Pty Ltd
[2013] VCC 691
•24 June 2013
| 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-11-01019
| ZHONG PING LIANG | Plaintiff |
| v | |
| FELTEX CARPETS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 June 2013 | |
DATE OF JUDGMENT: | 24 June 2013 | |
CASE MAY BE CITED AS: | Liang v Feltex Carpets Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 691 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right shoulder – disentanglement from right elbow and right wrist injuries – capacity for employment – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted in respect to application in relation to pain and suffering damages. Application in respect to loss of earning capacity refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr S S McCredie | Henry Carus & Associates |
| For the Defendant | Mr P Montgomery | Minter Ellison |
HIS HONOUR:
1 The plaintiff commenced work with the defendant in 1990 as a machine operator. In 2004, he developed pain in his right shoulder as a result of repetitive lifting in the course of his employment duties. In June 2007, the pain became worse. He remained at work, on lighter duties, until 2008 when he was made redundant, and the company moved premises. He has not returned to work since.
2 As a result of the injury to his right shoulder, he says he is unable to work and has suffered a reduction in a range of recreational, domestic and social activities.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered over the course of the plaintiff’s employment from 1999 until June 2007 with the defendant. The body function said to be lost or impaired is the right shoulder. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, medical and radiological reports, affidavits by the plaintiff and his wife, various surveillance film and other film relating to work duties in alternative employment, and other documents were tendered into evidence. I have read all the tendered material, and observed the film. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff was born in 1961 in China and is now fifty-two years of age. He was educated to the equivalent of Year 12. He is married with two children. He migrated to Australia in 1990. In China he served military service, worked on a farm and as a sales assistant.
6 His first job in Australia was with the defendant, and he commenced as a machine operator in 1990. The defendant was in the business of carpet production. The plaintiff worked upon a machine which manufactured carpet, and he was required to regularly remove reels from the machine. This work was repetitive and demanding. On occasions the machines jammed, and he was required to remove components weighing 30 to 40 kilograms.
7 He developed problems with his right elbow in 1992 which required steroid injections provided by his general practitioner, Dr Ngai. He had further pain in the elbow in 1999. He continued in his normal duties.
8 He also suffered problems in his left shoulder in 2001 and again saw Dr Ngai. A soft-tissue injury to the left shoulder was diagnosed, and he was prescribed anti-inflammatory medication. According to Dr Ngai’s clinical notes[1], a left rotator cuff syndrome was diagnosed. The plaintiff’s right elbow problem persisted and a diagnosis of lateral epicondylitis of the right elbow was made in August 2001. Complaints to Dr Ngai in relation to the right elbow persisted over 2002. Still the plaintiff was able to maintain his usual duties working as a machine operator for the defendant.
[1]PCB (“Plaintiff’s Court Book”) – 119-122
9 According to the plaintiff’s affidavit, he enjoyed playing badminton and occasionally went fishing. He assisted with a range of domestic duties, in particular the cooking. Prior to the injury to his right shoulder, he was otherwise in good health and, according to his affidavit, planned to work to sixty-five years of age.
The injury and its consequences
10 In about January 2004, the plaintiff developed right shoulder pain in the course of his work duties. He consulted Dr Ngai in January 2004 and was prescribed anti-inflammatory and pain-relieving medication. He was referred for physiotherapy. He said that the pain settled, and he was able to continue in normal duties. In August 2004, he had left shoulder pain for several days. According to Dr Ngai’s records, he presented again for treatment in September 2006 complaining of pain in both shoulders.
11 In July 2007, he again presented to Dr Ngai complaining of right shoulder and right elbow pain over a period of one week. Dr Ngai prescribed anti-inflammatory medication and again referred the plaintiff for physiotherapy. The symptoms persisted and he was given a certificate for light duties. Dr Ngai undertook an ultrasound which showed minimal fluid build up but no rotator cuff tear.[2]
[2]PCB 73
12 In August 2007, Dr Ngai referred the plaintiff to Dr Yvonne Pun, rheumatologist, who injected the area of the right shoulder, and said the plaintiff was also have difficulties with right tennis elbow. He remained on light duties.
13 In September 2007, the plaintiff was referred to Mr Trung Nguyen, orthopaedic surgeon.[3] Mr Nguyen noted the plaintiff was suffering pain in his right shoulder and right elbow. There had been three previous injections into the right elbow, and one into the shoulder. He diagnosed the plaintiff as suffering an impingement syndrome with subacromial bursitis. He said the plaintiff was also suffering epicondylitis or tennis elbow. He again injected the right shoulder with a corticosteroid injection. The plaintiff continued at work in lighter duties, in particular doing cleaning and vacuuming, and continued taking pain-relieving medication.
[3]PCB 39B
14 The plaintiff remained working on these light duties until June 2008. The evidence as to what then occurred is somewhat confused, but it would appear that the defendant closed the factory in which the plaintiff worked and removed it to another location. In evidence, the plaintiff said a number of employees moved to the other factory, but he was not offered a position there. According to various documents tendered,[4] the plaintiff was offered a voluntary redundancy at the time. He received a financial package. In evidence, he said he was told to sign the documents and did not understand whether he had any rights. Whatever the circumstances of the redundancy, nonetheless the plaintiff said that at the time he was capable of undertaking the lighter duties he was then performing. He has not resumed work since that time.
[4]Exhibit 2
15 He said that he kept looking for jobs but was unable to find any. He was registered with the Commonwealth Rehabilitation Service (CRS) and in August 2012, undertook a period of work training with a company, Gabee Bags. It was a trial job, and he worked four hours per day, two days per week on restricted duties. He said he found the work ‘okay’. He wanted to continue with that work, but was told there was no further work available.
16 He continued to see his general practitioner from time to time, and continued physiotherapy and hydrotherapy until 2010, when funding was ceased. According to a questionnaire completed by Dr Ngai, in April 2009, the plaintiff was said to be able to perform his activities of daily living, including feeding, bathing, dressing and toileting. In cross-examination, he said he had difficulties with these activities. The questionnaire[5] notes the plaintiff was being prescribed Panadol Osteo, Mobic and Durotram. According to Dr Ngai, in 2010, the plaintiff had no capacity for any duties due to chronic pain in his left and right shoulders, both elbows, neck and upper back.[6]
[5]PCB 26
[6]PCB 33
17 In 2011, Dr Ngai prescribed Endep to assist with sleep. By that time, the plaintiff was suffering pain in his right hands and fingers.
18 In his final report,[7] Dr Ngai noted the plaintiff had five sessions of physiotherapy under the Medicare system in 2013. He noted the plaintiff continued to suffer chronic severe pain in the elbows, shoulders, upper arms, hands and fingers bilaterally. As a result, he said the plaintiff had no capacity for any form of employment and that the condition was permanent.
[7]PCB 39A
19 The plaintiff continued to see Mr Nguyen, surgeon, from time to time for treatment until November 2007. He provided a further steroid injection into the right elbow and right shoulder. He said that the plaintiff should have a capacity for light duties providing he was not lifting heavy objects, pushing or carrying out repetitive movements involving the right shoulder or elbow.[8] In a report of 23 May 2012,[9] he examined the plaintiff again in May 2012. He noted some numbness in the right hand and arranged nerve conduction studies. These showed evidence of right median nerve lesion and diagnosed carpal tunnel syndrome. At the time, the plaintiff complained of constant pain in his right shoulder which Dr Ngai diagnosed as subacromial bursitis with an acromial spur. He confirmed the plaintiff as still suffering right lateral epicondylitis or tennis elbow. He said and MRI scan of the right shoulder performed on 31 May 2012[10] showed mild acromial bursitis with tendinopathy of the supraspinatus tendon. According to the report, there was a small tear at the extreme aspect of the supraspinatus tendon. There was no evidence of a full-thickness tear. An MRI scan of the right elbow of the same day, showed there was no tendinopathy and no elbow joint effusion nor arthropathy.
[8]PCB 46
[9]PCB 46A
[10]PCB 73A
20 Mr Nguyen said the plaintiff should have a capacity for light duties not involving heavy lifting or pushing with his right arm. He said office or administrative duties would be suitable.
21 The plaintiff also returned to see Dr Pun in February 2009 and on that occasion reported pain in the right shoulder and neck. He said he had difficulty with sleep but that he was capable of light work. Dr Pun considered that he had the capacity for light work,[11] although given his difficulty with the English language, he would find it difficult to obtain suitable employment. She discussed with the plaintiff the prospect of a hydrodilatation procedure. Mr Nguyen had also discussed the prospects of surgery to the right shoulder with the plaintiff, but had suggested the chances of improvement were only fifty per cent. Understandably, he declined the surgery.
[11]PCB 59
22 In April 2009, the plaintiff was examined by Dr David Elder, occupational specialist, to assess whether the plaintiff was suitable for a pain management program conducted at the Valley Pain Management Centre. He noted symptoms in the right shoulder and elbow. He noted the plaintiff had difficulty with English and wanted a “one hundred per cent cure”. He described the plaintiff as fixated on being cured before he could return to any level of activity or employment, and was thus unsuitable for the program.
23 According to the clinical notes of the general practitioner, Dr Ngai, the plaintiff has continued to consult him over the years to the present time. He has prescribed pain-relieving and anti-inflammatory medication. According to those notes, the consultations have related to the right shoulder, right elbow, but also the left shoulder and left elbow. According to the plaintiff, the left side is significantly less prominent than the right and the real issue is the right shoulder and the right elbow.
24 According to his most recent affidavit, the plaintiff has continued to suffer right shoulder and right elbow pain. On a scale, he says it is 7 to 8 out of 10 every day. He says he cannot elevate his right arm above his head, and it is weak. He goes shopping, but can only carry items in his right arm which are light. He says the pain in his right elbow continues and he feels a sharp needle-like pain in the elbow from time to time. He takes Tramadol for pain, an anti-inflammatory tablet, and Endep for sleep, because of the pain in his right shoulder and right elbow.
25 In 2012, he commenced English lessons at Box Hill TAFE, and goes there each week from Wednesday to Friday. He says he is not making particular progress with his English, which is still poor.
26 He says he is restricted in the heavier household chores and that his wife and daughters do most of the cleaning and cooking. He is able to wash a few plates. He relies on others to mow the lawn and do the heavier gardening chores. He no longer is able to cook, play badminton, and his relationship with his wife and daughters has deteriorated as a result. He is able to drive short distances. His wife and daughters operate a fish and chip shop and he occasionally helps out by purchasing small items of food from the supermarket and taking them to the shop. He says the shop is doing poorly and he and his wife borrowed a large amount of money to purchase it. They have been unable to sell the business. He no longer goes on family outings to the beach or to the country. He continues to seek employment. He is registered with the government employment service, but has had no offers of employment. He says he is still hopeful of returning to some form of work when he completes the English language course later this year, but would be unable to do any heavier work.
27 His wife filed an affidavit which is generally supportive of the claims of her husband.
Alternative employment
28 An affidavit of Simon Crone was tendered. He is the chief financial officer of a company, Betta Foods Australia Pty Ltd. In that affidavit, he referred to work in the “cones department” of the company. Accompanying that affidavit was film of the duties undertaken in the cones department by a number of employees. Four types of jobs were depicted in the production line relating to ice cream cones. Most appeared relatively light, but required rapid movement of both hands by the employees undertaking the tasks. Mr Crone’s affidavit said the employees rotated every two hours. Part of one of the jobs required simply observing the cones without very much rapid activity. On other occasions, large plastic trays were required to be lifted and placed at a height at or above shoulder height. One of the activities involved picking up and moving stacks of cardboard boxes, again to head height. Generally, the plaintiff in cross-examination denied that he had the capacity to undertake these jobs, particularly those which required rapid movement of both arms, and which required lifting of the trays up to shoulder height.
Consultant medical opinions
29 The plaintiff was examined by Mr Kenneth Brearley, general surgeon, in August 2010 on behalf of his solicitors. The plaintiff complained to Mr Brearley of pain in the right shoulder, back of the neck and right elbow whenever he used his arm for any significant purpose. The plaintiff said his activities of daily living were significantly restricted. Mr Brearley said the plaintiff was suffering from chronic subacromial bursitis resulting from an impingement syndrome to the right shoulder, lateral epicondylitis to the right elbow and aggravation of cervical spondylitis. He said the plaintiff was unable to do his former work as a machine operator but was fit for suitable light employment, avoiding lifting weights greater than 4 kilograms, and repetitive use of his right arm. He said that no employer would retain the plaintiff given his ongoing disability, and difficulty with the English language. He said the prognosis was fair.
30 The plaintiff was examined by Dr Helen Sutcliffe, occupational physician, in August 2010 and March 2012. She said the plaintiff had suffered right lateral epicondylitis, and a right shoulder impingement syndrome with adhesive capsulitis. The plaintiff also had carpal tunnel of the right hand. She said the plaintiff was not fit for his previous employment and had a capacity for no other form of employment taking into account the impairment, his age, background, education and training and work experience and lack of English. Further, she said the plaintiff had a very substantial loss of capacity for the activities of daily living, and domestic, social and leisure activities, as a result of his right shoulder injury. Likewise, he had a very substantial loss of capacity as a result of his cervical spinal degenerative problems, and also for his right elbow injury.
31 In her final report,[12] Dr Sutcliffe said the plaintiff was unfit for his pre-injury employment as a result of the neck, right shoulder and right elbow injuries. She further noted that he suffered problems with his left shoulder and left elbow.
[12]PCB 92
32 When shown the film of the work at Betta Foods, Dr Sutcliffe commented that the plaintiff had no capacity to undertake any of the tasks demonstrated.
33 The plaintiff was examined by Mr Stephen Doig, orthopaedic surgeon, in January 2011. He received complaints of ongoing pain in the right shoulder, right elbow and left shoulder. Mr Doig said, from a clinical point of view, the plaintiff had evidence of subacromial bursitis with a secondary frozen shoulder on the right side. He said there was evidence of a right tennis elbow injury. He said the plaintiff was capable of performing light duties providing there was no heavy lifting, pushing, pulling or carrying. He said he was capable of sedentary work from a physical point of view. He thought the prognosis was poor. Mr Doig said:
“It is not obvious as to why he should have such ongoing disability as far as the right upper limb is concerned. I think it would be worthwhile having him re-investigated by his treating orthopaedic surgeon to see if there is anything further that can be done in order to try and mobilise him. I think there is some evidence of frozen shoulder and that would go along with the condition he has at this stage. … I consider it is unlikely he would be able to get back to full-time work immediately but I do not see any reason why when he finally gets back into the workforce he should not be able to build up his working time slowly and steadily.”[13]
[13]PCB 95-96
34 Subsequently, Mr Doig was shown the affidavit of Mr Crone, and a report of Dr Roy Karna, rheumatologist, who examined the plaintiff on behalf of the defendant. However, the letter does not suggest Mr Doig had the opportunity to see the film of the work duties. In order to determine whether the plaintiff could undertake the duties, in my view, it would be necessary for Mr Doig to see the film.
35 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, in March 2012. He obtained a history of symptoms similar to the other practitioners, both to the right elbow and right shoulder. He said the physical signs on examination were subjective and somewhat variable. He said the signs did not indicate the presence of severe pathology, but there was some chronic right rotator inflammation and evidence of mild right lateral epicondylitis of the elbow. He concluded the plaintiff would be unable to return to his previous employment, but noted that he was able to cope with light duties until his retrenchment. He said it would be difficult for the plaintiff to find employment and it was unlikely he would return to the workforce. Notwithstanding, in his letter of the 2 July 2012 he said the plaintiff had the capacity to undertake light duties.[14] He was provided with some further information about a job option, although the letter is not clear as to what that job option was. He said the plaintiff could do light physical duties provided he could work at his own pace.
[14]PCB 100A
36 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, on behalf of the defendant, in December 2012. Mr Jones said there was exaggerated tenderness, and non-organic signs present upon examination. It appears from the report Mr Jones was asked to consider the appropriateness of surgery, which he said would be of little benefit. He thought a return by the plaintiff to employment in the long term would be unlikely.
37 The plaintiff was examined by Dr Roy Karna, rheumatologist, in December 2009, February 2011 and May 2012. At the time of the first examination, the plaintiff said that the major problem was the right cervicotrapezius region and the right elbow. He said there were features of abnormal illness behaviour with collapsing weakness, atypical sensory loss and a discrepancy upon examination. He said the plaintiff was capable of a wide range of alternative duties such as those he was doing at the time of his redundancy. He said jobs such as a product quality controller, package container filler, product assembler and hand packer were within his capacity. When shown the DVD of the alternative duties in the cones department, he said the plaintiff was well capable of undertaking that work.
Credibility of the Plaintiff
38 An attack was made upon the plaintiff’s credibility. Surveillance film of April, May and June 2012 was shown. In short, there was nothing in the film which was inconsistent with the evidence given by the plaintiff, nor the histories provided to the doctors. If anything, the surveillance film confirmed the plaintiff had difficulties with his right shoulder and elbow. At times, the plaintiff wore a backpack slung over his right shoulder, but it was clear that he did this so that any adjustment could be undertaken by his left arm, and not his right.
39 Generally, I found the plaintiff a reasonable witness, giving a fair account of the difficulties and restrictions the injury to his right shoulder and elbow had caused him.
Conclusions
40 It is clear the plaintiff commenced suffering problems, in particular in his right elbow, as early as 1992. The problem in that area has persisted on and off through to the present time. The condition was diagnosed at an early time as right lateral epicondylitis, or tennis elbow. He has also suffered problems from an early time with the left shoulder, although over the years these problems do not appear to have been significant. The diagnosis of a right shoulder problem commenced in about 2004. I am satisfied all of these conditions are related to his employment with the defendant.
41 At times he has complained of problems in his cervical spine which appear to be an aggravation of an underlying degenerative process.
42 At the outset of the application, Mr McGarvie, on behalf of the plaintiff, confirmed the right shoulder and the right elbow were separate body functions. The application was brought only in respect of the right shoulder. After the onset of symptoms in the right shoulder in 2004, the plaintiff was able to maintain his repetitive and strenuous employment until 2007. He was forced onto lighter duties at that time because of the problem not only in his shoulder, but also in his elbow. Both the elbow and the shoulder have required corticosteroid injections on a number of occasions. Consideration at one point was given to surgery at to the shoulder, although it is not clear what the procedure was to be.
43 The plaintiff was able to undertake the lighter duties from July 2007 until June 2008 when he was retrenched. Although the circumstances of the retrenchment are somewhat confused, nonetheless I accept he was able to undertake those lighter duties until that time. He was also able to undertake a trial of employment duties in 2012, but this was only conducted over a short period.
Pain and suffering consequences in relation to right shoulder injury
44 I accept the plaintiff has suffered an injury to his right shoulder related to his employment. It has been diagnosed as subacromial bursitis. There is reference in the opinions of some of the plaintiff’s consultants to an impingement syndrome. I accept that this has required conservative treatment over a significant number of years, including the provision of pain-relieving medication and anti-inflammatories. The plaintiff has been referred to both an orthopaedic surgeon, and a rheumatologist, who have provided corticosteroid injections. I accept the plaintiff’s recreational, domestic and employment duties have been affected by the right shoulder problem. The radiology does not suggest any sinister pathology in the right shoulder. There is no full thickness tear of the supraspinatus tendon. There may be a small tear at one end of that tendon. The bursitis in the area was said to be mild. Likewise, the radiology of the right elbow shows no sinister pathology.
45 The difficulty for the plaintiff in this application is the disentangling which must be undertaken as between the right shoulder and the right elbow. I accept the plaintiff suffers a range of restrictions in domestic and work-related activities, but no single treating or consultant practitioner has carefully looked at the consequences of the injuries to each of the body functions, and determined which consequences relate to which body function. In a case such as this, where there are problems to the one upper limb, a disentangling exercise is a complex and difficult procedure.
46 Nonetheless, from the perspective of pain and suffering, I accept that the plaintiff suffers pain in the shoulder and that this restricts the movements he would be able to undertake, particularly those at or above shoulder height. Even accepting that the injury to his right elbow has caused significant problems over many years, I accept that the right shoulder is a significant source of pain and restriction. He has had the problem since 2004, although his work was not interrupted until he suffered an exacerbation of the problem in 2007. It has required many years of conservative treatment, including a number of injections.
47 In these circumstances, I am satisfied that the plaintiff has achieved the level as the legislation requires, that is that the consequences relating solely to the right shoulder injury do reach the “very considerable” level. His application in relation to pain and suffering succeeds.
Loss of earning capacity in relation to the right shoulder injury
48 However, the situation is more complex when work capacity is assessed. Again, there is a difficult disentangling exercise required. The plaintiff said he had the capacity to perform the lighter cleaning duties undertaken from 2007 to 2008. He has done little in his attempts to find employment from that time to the present, although is registered with the CRS.
49 I prefer the opinion of both treating and consultant practitioners who are of the view that the plaintiff has a capacity for employment in light duties. I do not accept that part of the opinion of Dr Sutcliffe that the plaintiff has no capacity. Further, I have reservations about her assessment that taking the shoulder and the elbow separately, each is responsible for a very substantial loss of the capacity to undertake the various activities referred to. Accepting that the plaintiff does have a capacity for light work, all of the practitioners have assessed work capacity taking into account both the shoulder and the elbow injuries. There is no one practitioner who has carefully looked at work capacity solely from the point of view of the shoulder. The obligation is upon the plaintiff to disentangle, and with the possible exception of the opinion of Dr Sutcliffe, about which I have significant reservations, there is no clear opinion that taking into account only the shoulder injury, the plaintiff has no work capacity.
50 I should further bear in mind the definition of “suitable employment” as set forth in s5 of the Act. I bear in mind the nature of the plaintiff’s condition, his age, education, skills and work experience. I accept that he has only limited English, although he is attempting to improve those skills through a course which he is presently undertaking. Nonetheless, the Act is concerned with capacity for rather than availability of employment. Even accepting I should give consideration to the plaintiff’s limited English skills and his history or manual employment, I am not satisfied that the plaintiff has suffered a loss of earning capacity when regard is had to the shoulder injury alone. This is particularly so as there is absent any clear medical opinion to that effect.
51 In the circumstances, the plaintiff’s claim for loss of earning capacity fails.
52 I shall make consequent orders.
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