Lombardini v National Foods Milk Ltd
[2012] VCC 301
•26 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00271
| Richard Peter Lombardini | Plaintiff |
| V | |
| National Foods Milk Ltd | First Defendant |
| Victorian Workcover Authority | Second Defendant |
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JUDGE: | S Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2012 | |
DATE OF JUDGMENT: | 26 March 2012 | |
CASE MAY BE CITED AS: | Lombardini v National Foods Milk Ltd & Anor. | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 301 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – injury to the left shoulder – pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Saunders | Ryan Carlisle Thomas |
| For the First and Second Defendant | Mr C. Miles | Wisewould Mahony |
HER HONOUR:
1 The plaintiff applies under s 134AB(16)(b) of the Accident Compensation Act1985 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the left (non-dominant) shoulder sustained on 8 August 2008 during the course of his employment with the first defendant as a dairy hand when pushing a stack of empty pallets with his left arm. He reported the injury to his employer (the first defendant) and saw the company doctor, who arranged for investigations and referred him to physiotherapy. He had five sessions of physiotherapy but found that they caused him pain. He also had an injection to the left shoulder. He has been seen by an orthopaedic surgeon who reviewed the MRI taken on 6 November 2008 and recommended conservative treatment. After his left shoulder injury he was put on light duties and stayed in his employment until mid 2011 when he relocated to Western Australia to look after his ailing father. He obtained employment as a supervisor at Bunnings Warehouse and continues to work full time. He does not have any ongoing active treatment for the left shoulder because he has been told there is none that will help and that he should just take analgesic medication when required and limit what he does.
The issues
2 The plaintiff says that his left shoulder injury, as reported in the MRI of 6 November 2008, consists of tendinopathy without full thickness tear of the subscapularis tendon and a small rim rent tear of the infraspinatus tendon at its insertion site posteriorly.[1] He says that as a result of his left shoulder injury he has suffered a permanent impairment of the function of the left shoulder comprising pain and restrictions in relation to use of the left shoulder to lift, reach, push, pull or carry items. He has a base level of pain which becomes severe if he uses the left shoulder too much.[2] His sleep is disturbed by pain two to three times per week and on those nights he sleeps five to six hours. He takes over the counter analgesics (Panadol, Nurofen or Panadeine) two or three times per week, two tablets at a time. He no longer plays golf, or cricket, nor tends to his garden because of his left shoulder problem. He says that he left a management position in 2003 to work for the first defendant because he wanted to get back to a physical job, but that his left shoulder injury will permanently narrow his employment opportunities in that he will not be able to do any heavy work. He says that the pain and suffering consequences of the left shoulder impairment are more than considerable when compared with other cases in the range of possible impairments or losses of a body function of the shoulder.
[1]Plaintiff’s Court Book (PCB) 33.
[2]Plaintiff’s affidavit sworn 19 August 2010 at PCB 23.
3 The defendants concede that the left shoulder impairment has had an impact on the plaintiff’s day to day life but say that in all the circumstances the sequelae of his impairment in terms of pain and suffering are not more than considerable when compared with other cases in the range of possible impairments or losses of a body function of the shoulder.
Medical Evidence
4 There was no dispute between the parties concerning the medical evidence about the plaintiff’s injury, his treatment, and the permanence of symptoms of pain and limitation on activities flowing from the left shoulder injury. I am satisfied on the medical evidence that, leaving aside any non-organic component of his symptoms, the plaintiff has suffered a permanent impairment of the body function of the left shoulder as a result of the injury sustained during the course of his employment on 8 August 2008. I propose to deal briefly with the medical evidence concerning the restrictions flowing from that impairment.
5 The plaintiff was treated for his left shoulder injury by the first defendant’s doctors, Dr Nicholas Bare and Dr Michael Kiley, at the Valewood Clinic. On 22 March 2010, Dr Kiley reported that the plaintiff’s left shoulder pain had been caused by a combination of factors, including the acute injury at work and the underlying degenerative process. He noted that the plaintiff had ongoing shoulder pain “whether he uses the shoulder or not”, and that overuse makes the pain worse.[3]
[3]Defendant’s Court Book (DCB) 23.
6 On 1 September 2011, Dr Kiley reported that as a result of his left shoulder injury the plaintiff would permanently be unfit for some of his pre-injury duties and would be subject to a number of restrictions including not lifting more than 5 kgs, not working with the left arm above shoulder height, no hard pulling or pushing with left arm and no driving of a forklift.[4] Dr Kiley stated that these restrictions would “create significant disruptions to quite a number of activities socially, domestically and recreationally”. He stated that the plaintiff would have an ongoing need for painkillers and may need to treat flare-ups with physiotherapy. It was possible that his left shoulder condition will deteriorate in time and that he will require intervention from an orthopaedic surgeon.
[4]PCB 37 – 38.
7 During these years, the plaintiff had also been seeing his personal general practitioner, Dr Yang Yeap, for unrelated matters. The first defendant requested that he present to Dr Yeap for assessment of his work capacity. Dr Yeap examined the plaintiff, considered the report of Mr David Booth, and recommended continuing the restrictions imposed by Dr Kiley.[5]
[5]PCB 42.
8 Mr Booth reported on 15 December 2008 that the plaintiff had:
“a degenerate anterior aspect of his shoulder. The subscapularis tendon is degenerate and with tendinosis or fibrosis. At the moment the subscapularis is weak and this is exhibited by weak internal rotation when he is driving his forklift or weak left hand when he is trying to pick up objects manually”.[6]
He felt that surgery was not required, but that the plaintiff should not return to his pre-injury duties. On 29 January 2010, Mr Booth reported that the MRI scan of 6 November 2008 showed mild inflammation and fibrosis of the subscapularis tendon.
[6]PCB 43.
9 Mr Thomas Kossman, orthopaedic surgeon, reported to the plaintiff’s solicitors on 2 September 2010 that the plaintiff reported pain on movement of the left shoulder, as well as a “dull” feeling after moving his left shoulder a lot.[7] He also reported limitations in helping his wife around the house (cleaning, vacuuming, shopping). He had given up his pre-injury sports of golf, cricket and bike riding. He felt that the plaintiff would permanently be unable to undertake overhead work, or lift more than 5 kgs in weight, and would also be excluded from work as a forklift driver. He could continue with his office work and supervisory duties. He was permanently “restricted to a certain degree, in relation to his social, domestic and recreational activities” as he “cannot use his shoulder for many of these activities”.[8] He recommended a three month course of physiotherapy, hydrotherapy and acupuncture.
[7]PCB 47.
[8]PCB 50.
10 Mr John O’Brien, orthopaedic surgeon, reported to the plaintiff’s solicitors on 25 January 2012 that the plaintiff’s chronic left shoulder pain was caused by rotator cuff tendinopathy. He noted that the chronic shoulder pain had continued for a number of years, and that conservative treatment had failed but that symptoms were controlled with regular analgesics and limiting activities to avoid aggravation of pain. He felt that the chronic shoulder pain would continue into the future. He felt that the plaintiff was incapable of doing unrestricted manual type work but could continue with full time light duties. He felt that the plaintiff’s “general, social, domestic and recreational activities have been significantly affected” and this impact would be permanent. He felt that the plaintiff had “in fact sustained a considerable injury which has had a substantial impact on his overall lifestyle”.[9]
[9]PCB 54.
11 Dr Gary Davison, occupational physician, provided four reports[10] to the first defendant’s insurer. On 1 April 2009 he examined the plaintiff and recommended that the plaintiff undergo an MRI scan of the left shoulder. He felt that the plaintiff could not repetitively use the left arm and could not drive a forklift.
[10]DCB 3 – 21.
12 On 5 May 2009, Dr Davison (based on his worksite assessment on 2 May 2009) imposed restrictions on forceful or repetitive pushing/pulling with the left arm above chest height, and no manual handling of more than 10 kgs with no lifting above chest height or below thigh height. He again indicated that forklift driving was not a suitable work activity for the plaintiff but his current administrative duties were suitable. On 22 April 2010, Dr Davison noted some inconsistencies on examination and found no wasting in the left shoulder. Dr Davison felt that the MRI findings did not explain the complaint of persistent pain elsewhere in the shoulder and concluded that the plaintiff “may have developed abnormal illness behaviour or may not be giving a good account of himself”. He repeated the work restrictions suggested in his previous report. Dr Davison conducted a worksite assessment on 12 May 2010 and concluded that his current work duties were suitable.[11]
[11]DCB 19 – 21.
13 Mr Peter Battlay, orthopaedic surgeon, reported to the first defendant’s insurer on 12 April 2010 that the plaintiff had symptoms and clinical findings of subscapularis tendinosis, and a stabilised, permanent impairment of the left shoulder.
14 Mr Ian Jones, orthopaedic surgeon, saw the plaintiff twice and provided two reports to the defendants’ solicitors. On 25 January 2011, Mr Jones examined the plaintiff and found no muscle wasting of the left shoulder and a full range of left shoulder movement. He diagnosed “mild degenerative disease affecting at least one of the rotator cuff tendons of the left shoulder”.[12] He noted that he did not detect any functional component in the plaintiff’s symptoms or signs. He felt that the plaintiff should not return to his former job as a forklift driver but could undertake suitable physical employment excluding heavy or repetitive use of the left shoulder. On 17 January 2012, Mr Jones noted that the plaintiff’s left shoulder symptoms were continuing, and that he continued to take medication including Paracetamol and Codeine (two to three tablets in any week) when required.[13] He re-examined the plaintiff and found that there had been no change in the plaintiff’s condition. He noted that the plaintiff was not engaging in any recreational activity.
[12]DCB 32.
[13]DCB 58 - 60.
Plaintiff’s evidence
15 I have dealt above with the issues raised by the plaintiff’s first affidavit. In his second affidavit,[14] the plaintiff stated that his left shoulder condition has not changed. He can use his left shoulder but he cannot use it the way he did before the injury without suffering pain. He avoids doing activities which he knows will aggravate his pain, such as lawn mowing. He drives mainly using his right arm. He avoids reaching above shoulder height with his left arm. He avoids carrying groceries in his left hand. He works full time in a management position which allows him to get other people to do any lifting. He has trained himself to drive a forklift but does not need to do so regularly in his current position. He has no ongoing medical treatment for his left shoulder because he understands that there is none available other than taking analgesics as needed and trying to avoid activities that exacerbate his pain.
[14]PCB 29.
16 At the hearing, the plaintiff said that prior to the accident he managed a fairly large garden but since then it has gone to ruin. He now does not mow the lawn but can use the whippersnipper. Prior to the accident he played social golf with his son each week. He also played in a Grade F cricket competition as wicketkeeper and batsman. He agreed that he was getting too old to play but said that prior to the accident he was still able to enjoy the game. He said that he has pain all the time but only takes medication in the form of Panadol two to three times per week, two tablets at a time when activity makes his pain worse. He said that he still rides his pushbike.
Legal principles
17 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[15] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[16]
[15]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[16]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
18 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[17] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[18] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and, finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[19]
[17]Fleming v Hutchinson (1991) 66 ALJR 211.
[18]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
[19]Ibid [80].
19 The “pain and suffering consequence” of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[20]
[20]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
20 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[21]
[21]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
21 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[22]
[22]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
22 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[23] Each case has to be determined in the light of its own facts.[24]
[23]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[24]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
23 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[25] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him. Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[26]
[25]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
[26]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
Finding and reasons
24 I turn first to consider what has been retained in spite of the left shoulder injury. The injury is to the non-dominant arm. The plaintiff has lost no time off work. He has little or no medical treatment and still does most things even if some activities cause him pain. He is able to undertake his normal range of activities of daily living. He can still ride his bicycle. He only takes analgesics in the form of Panadol a few times per week, as required.
25 On the other hand, he presented as a very straightforward witness who did not exaggerate his symptoms. Rather, he appeared to me to be managing as best he can and to be fairly stoic. I consider that the restrictions he reported to various doctors are consistent with their clinical findings. The weight of the medical evidence was to the effect that the plaintiff’s organic injury resulted in a genuine permanent impairment involving pain and restrictions in the use of the left shoulder.
26 I consider for a number of reasons that the pain and suffering consequences of his left shoulder injury are more than considerable when compared with other cases in the range of impairments of the function of the left upper limb. Firstly, the plaintiff suffers constant pain, which disrupts his sleep regularly and for which he takes regular medication, albeit over the counter analgesia. Secondly, there has been a significant impairment of his recreational activities: he can no longer play the competitive cricket he enjoyed, nor the weekly social golf game he enjoyed, nor tend to the garden which he established. Thirdly, he can no longer undertake heavy domestic cleaning or gardening. Fourthly, he has had to give up physical work which he sought out and enjoyed and will permanently be unable to return to such work.
Conclusion
27 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering only in respect of the injury to the left shoulder sustained on 8 August 2008 during the course of his employment. I reserve the question of costs.
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