Lucas v Kraft Foods Limited
[2013] VCC 1267
•4 October 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-12-01980
| MARK LUCAS | Plaintiff |
| v | |
| KRAFT FOODS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2013 | |
DATE OF JUDGMENT: | 4 October 2013 | |
CASE MAY BE CITED AS: | Lucas v Kraft Foods Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1267 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – two separate incidents – injury to the right shoulder and injury to the back – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Hangay | Slater & Gordon Ltd |
| For the Defendant | Ms J M Forbes | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for two separate injuries suffered by him in the course of his employment with the defendant on 13 July 2007, when the plaintiff strained his right shoulder lifting some steel pipes (“the right shoulder injury”), and on 30 August 2007, when the plaintiff was undoing some nuts and lifting some pipes and strained his back (“the back injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only in respect to each injury.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body functions relied upon in this application are injury to the right shoulder and injury to the back.
6 The plaintiff relied upon three affidavits, two sworn by the plaintiff on 1 December 2011 and 8 August 2013, and one sworn by the plaintiff’s wife on 8 August 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence, nor have I summarised the affidavits of the plaintiff’s wife. However, I will refer to the relevant evidence of the plaintiff and his wife in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 As this application relates to two separate injuries which arise out of two separate accidents, the injuries must be assessed separately.
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that each of “the injuries” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) each of “the injuries” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) each of “the injuries” with their resulting impairment, must be permanent, in the sense that they are likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairments to the right shoulder and the back must be assessed separately in relation to “pain and suffering” and each must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]s134AB(38)(b) and (c) of the Act
10 The Court must consider the impairment of the separate body functions suffered by the particular plaintiff separately, but the test also requires an objective comparison between each impairment suffered by the plaintiff and the range of possible impairments.
11 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6](supra) at [42]
12 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
13 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
14 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]s134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
15 Subsection 38(h) of s134 of the Act provides consequences which are psychologically based are to be wholly disregarded in serious injury paragraph (a) cases.
16 I have applied the principles identified by the Court of Appeal in Barwon Spinner Pty Ltd & Ors v Podolak[10] and in Grech v Orica Australia Pty Ltd & Anor.[11]
[10](2005) 14 VR 622
[11](2006) 14 VR 602
The issue
17 Counsel for the defendant informed the Court that this is a “range case”; namely that the consequences of the plaintiff’s injuries considered separately do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s evidence of work
18 The plaintiff’s evidence was that he commenced work as a plant operator with Riverland Oil Seed Processors, where he worked for two years.
19 He commenced work with the defendant as a process worker and worked with the defendant during two periods, totalling approximately fifteen years. He was an assistant cheesemaker with the defendant. At the time of his injuries, he was working as a Cleaning in Place (“CIP”) Specialist for the defendant.
20 On 17 August 2004, while working with the defendant, he suffered a back injury, received medication and rested for a couple of days, returning on restricted duties for two weeks. His back improved and he returned to normal duties.
21 On 1 January 2007, he strained his low back and right shoulder whilst pushing a trolley. He submitted an incident report, but received no treatment.
22 On 20 January 2007, he lifted a lid and strained his right shoulder but did not receive any treatment and his shoulder resolved.
23 On 13 July 2007, he was holding steel pipes up to tighten the nuts, but because they were not aligned, he was required to use greater force and suffered injury to his right shoulder. He reported the injury. He thought the pain and limitation of movement would go away and continued working.
24 On 30 August 2007, he was undoing a nut on a pipe, working above shoulder height, when he had to use excessive force and placed greater strain on his back, injuring his back. He sought medical treatment from Dr Spencer, his general practitioner, who prescribed medication and put him off work. The plaintiff was off work for approximately three months and received chiropractic treatment.
25 The plaintiff returned to work on light duties. He was certified for normal duties but was performing restricted duties when he decided to accept a voluntary redundancy with the defendant. He said he was a bit disheartened by his injury and it was a good opportunity to try something different. He planned to set up his own business.
26 He started assembling sheds with a friend but found that placed too much strain on his low back and his right shoulder.
27 He obtained employment at Murray Goulburn as an assistant cheesemaker. He said when he left Kraft it was not his intention to work for Murray Goulburn.
Investigations
28 On 27 September 2007, a CT scan of the plaintiff’s lumbar spine at the L5-S1 level indicated mild to moderate central disc bulge which touches and displaces the left descending S1 nerve root posteriorly.
29 On 14 November 2007, a CT-guided left L5-S1 epidural injection was performed.
30 On 28 November 2007, an ultrasound of the right shoulder concluded subacromial subdeltoid bursitis.
31 On 28 November 2007, an x-ray of the right shoulder showed no relevant abnormality.
32 On 14 January 2008, an ultrasound-guided right subacromial bursal injection was performed.
33 On 4 April 2013, a CT scan of the lumbar spine showed the L5-S1 level within normal limits. A comparison to previous examinations in September 2007 demonstrated resolution of L5-S1 disc bulge. No evidence of neural impingement was detected.
The Plaintiff’s medical evidence
Dr Michael Brighton-Knight
34 In November 2007, Dr Brighton-Knight, orthopaedic surgeon, reported to the plaintiff’s general practitioner that the plaintiff had a mechanical disruption of his L5-S1 disc with an associated mild disc bulge which probably causes some chemical rather than mechanical irritation of the left S1 nerve root. He said the injury of the disc is only a very minor tear within the annulus, causing some minor bulging. He said the more active a patient is the more the patient returns to normal functioning and the more rapidly the brain gets used to the injury in the disc as it stops sending pain messages. He noted that the plaintiff had returned to light duties and said that was an important part of his rehabilitation back to normal functioning. He said the plaintiff should be encouraged to slowly increase his level of activity back to normal work involvement as soon as practicable.
Dr Jason Spencer
35 Dr Spencer, general practitioner, treated the plaintiff in respect to the back and shoulder injuries. In 2011, he reported to the plaintiff’s solicitor that the plaintiff suffered a disc prolapse causing sciatica. He was treated with chiropractic treatment, provided with Panadeine Forte for pain relief and referred for a CT scan of his lumbosacral spine. A short course of oral Prednisolone provided only partial improvement with his sciatica. In November 2007, the plaintiff underwent a CT-guided L5-S1 epidural injection. He was referred to Dr Michael Brighton-Knight, who diagnosed a relatively minor disc herniation, managed conservatively with some help re-adjusting to return to work and ongoing assistance with analgesia.
36 In respect to the plaintiff’s right shoulder, an ultrasound scan showed thickening of the subacromial bursa consistent with subacromial subdeltoid bursitis. The plaintiff was treated with an ultrasound-guided cortisone injection. The plaintiff reported partial improvement in his right shoulder and had a full range of shoulder movement. He was placed on alternative work duties. His work restrictions included:
§ no overhead work;
§no heavy pushing or pulling;
§no lifting greater than 10 kilograms;
§six hours per day, five days per week.
37 He continued to use Nurofen and Panadeine Forte as needed. Over time, he slowly improved. He was last seen on 17 March 2008 and was on modified work duties for 8 hours per day, five days per week, with no lifting greater than 5 kilograms, no repetitive bending and no heavy twisting, pushing or pulling work.
38 In July 2013, Dr Spencer reported that the plaintiff had suffered low-back pain intermittently since his original work injury in 2007. On review, the plaintiff complained of left lower back pain radiating down his left leg, which was aggravated by prolonged sitting, standing, bending and lifting. The plaintiff reported he was able to manage his current work duties and remained in full‑time work. Dr Spencer prescribed Lyrica at night to help with possible neuropathic pain. It was his view the plaintiff had a capacity for full-time employment with his current work duties, but may develop back pain with any prolonged or repetitive bending, heavy lifting, pushing or pulling work. He said the plaintiff was unfit to perform his pre-injury duties which were of a heavier nature than his current work duties. He said the plaintiff may have some degree of lumbar disc degeneration due to his previous disc prolapse injury which may progress in the future. The plaintiff is likely to have ongoing intermittent symptoms related to activity. Dr Spencer had not seen the plaintiff in relation to his shoulder condition since January 2008.
Dr Robyn Horsley
39 In June 2012, Dr Horsley, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. Dr Horsley said the plaintiff presented with mechanical back pain with an element of radicular pain down the left leg.[12] He had some radicular features, including a reduction in muscle bulk, and a reduction in light touch sensation down the lateral aspect of the left calf. She said this is consistent with an annular tear.
[12]In Dr Horsley’s report she noted the pain in the right leg, but it was accepted she meant to refer to the left leg.
40 In respect to the right shoulder, Dr Horsley said the plaintiff presented with ongoing right shoulder dysfunction, suggestive of rotator cuff pathology.
41 Dr Horsley said, given the length of time since the injury and the ongoing nature of the symptoms, she believes the symptoms are likely to persist. She noted that the plaintiff had managed his disability well with an ongoing Pilates-based program, returning to work in an alternative role that is less physical and more within his physical capacity. She said he is now able to modify, self pace and self manage, and is coping with his current duties. She said he is permanently unfit for his previous role.
42 Dr Horsley accepted that work had been a significant contributing factor with respect to his right shoulder and lumbar spine.
43 Dr Horsley imposed work restrictions in respect to the plaintiff’s right shoulder of:
§ avoidance of repetitive overreaching;
§ avoidance of repetitive above shoulder activities;
§ avoidance of forceful activities involving the right shoulder girdle;
§ avoidance of prolonged static postures involving the right shoulder;
§ avoidance of using machinery with a significant vibratory component;
§ avoidance of repetitive above shoulder work;
and the plaintiff should ideally work between shoulder and waist height.
44 Dr Horsley imposed the following work restrictions with respect to the plaintiff’s lumbar spine:
§ avoidance of repetitive bending;
§ avoidance of truncal rotation;
§ avoidance of working in awkward and confined spaces;
§ avoidance of lifting items greater than 12 to 15 kilograms except on an occasional basis;
§ avoidance of lifting items up to 10 to 12 kilograms on a repetitive basis;
§ good manual handling technique, even when lifting light items.
45 Dr Horsley said the plaintiff’s functional tolerances are reduced. He currently has:
§a sitting tolerance of about 30 minutes;
§a dynamic standing tolerance of 30 minutes;
§a static tolerance of 5 to 10 minutes;
§a walking tolerance on a flat surface of about 30 minutes;
§a driving tolerance in an automatic car with power steering of an hour.
46 Dr Horsley said, in view of the plaintiff’s age, being forty-two years, as time passes and the degenerative process accelerates, he is likely to experience increasing stiffness and reduced functional tolerance which may well impact upon his capacity to continue to work as an assistant cheesemaker in years to come. She said the plaintiff’s restrictions are permanent and will continue into the foreseeable future.
47 Dr Horsley said the plaintiff has persisting disability in the right shoulder.
48 Dr Horsley concluded that the prognosis is for ongoing disability in the plaintiff’s right shoulder and lumbar spine, with an acceleration of the degenerative process, particularly in the lower lumbar region, over the next ten years or so.
Dr Melissa Stone
49 In June 2012, Dr Stone, osteopath, confirmed that the plaintiff had been receiving treatment at the Shepparton Osteopath Clinic since January 2009 in respect of his lumbar spine and injured right shoulder. He received treatment on a four to six-weekly basis. Dr Stone reported that the plaintiff’s injuries have stabilised. The pain is not as severe as previously, but is constant in nature and limits his ability to perform activities such as heavy lifting, prolonged standing, sitting, walking and martial arts.
50 Dr Stone diagnosed chronic L5-S1 disc bulge which irritates the S1 nerve root and chronic rotator cuff impingement syndrome as a result of previous subacromial bursitis. She said that there was a moderate to strong likelihood that the plaintiff’s back and right shoulder condition may deteriorate in the future.
51 Dr Stone’s prognosis is that the plaintiff is likely to experience ongoing exacerbations and remissions of his pain levels in both the lumbar spine and right shoulder joint. Employment of a physical nature would increase the likelihood of these exacerbations and the plaintiff may find it more difficult to complete work-related activities that include heavy labour, lifting and prolonged standing, sitting and walking. She said the plaintiff was able to complete his basic activities of daily living, but with constant mild pain and the knowledge that his condition may worsen or exacerbate in the future, particularly if he was to perform heavy physical labour. She said both conditions prevent the plaintiff from participating in martial arts, an activity he enjoyed prior to the injury. She accepted that both the back and shoulder pain would have an impact on the plaintiff’s social and domestic life, including performing everyday jobs at home and in lifting and caring for his children.
Ms Amanda Shannon
52 Ms Shannon, myotherapist, confirmed that she had been treating the plaintiff since October 2010 with right shoulder and arm pain. She said the myotherapy treatment controls the plaintiff’s pain and prevents his range of motion from decreasing.
Mr Russell Miller
53 In July 2013, Mr Miller, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. He complained of ongoing problems with the right shoulder and reported aching, discomfort and intermittent pain in the right shoulder. He said the plaintiff had difficulties with repetitive activities and difficulty with above shoulder activities. He reported fluctuating symptoms and said there had been no pattern towards improvement. He complained of occasional sleep disturbances.
54 In relation to the right shoulder, Mr Miller said the plaintiff suffered an injury with probable rotator cuff pathology and impingement syndrome. He described the plaintiff’s ongoing symptoms as significant. His prognosis was only fair. He said the right shoulder symptoms were aggravated by the work injury in July 2007. He thought the plaintiff might benefit from surgical intervention of arthroscopic subacromial decompression and possible rotator cuff repair.
55 In respect to the low back, the plaintiff complained of low-back pain and discomfort which radiates into the buttocks and occasionally into the left leg, with feelings of numbness and tingling, particularly in the lower leg. Back pain remains the dominant feature. The plaintiff reported difficulties with repetitive bending and lifting and difficulties with prolonged sitting. He reported sleep disturbance.
56 Mr Miller personally reviewed the radiological file and films. He was the only medical witness to review the CT scan of April 2013. He said there is still a minor disc bulge at the L5-S1 level with no evidence of neurological compromise. This is inconsistent with Dr Kent, radiologist, who reported that a comparison of this film to the films of September 2007 demonstrates a resolution of L5-S1 disc bulge.
57 In respect to the low back, Mr Miller said the plaintiff had suffered an injury to the lumbar spine with musculoligamentous strain, aggravation of degenerative disease and probable disc injury at L5-S1 level. The plaintiff had only a moderate response to conservative intervention. He said prognosis for the lumbar spine is only fair. He said the lumbar spine condition was specifically aggravated in August 2007 and it is possible that he would benefit from surgery in the form of a discectomy and or fusion.
58 Mr Miller said the plaintiff had not been able to return to pre-injury duties. He has returned to lighter physical work. Further, he can perform work provided it involves only a moderate amount of repetitive arm actions and lifting of weights less than approximately 5 kilograms. He cannot undertake work that involves significant amounts of repetitive bending and lifting. Mr Miller said these restrictions are permanent and work related. Mr Miller said the plaintiff would have difficulty with work that involves:
§ large amounts of repetitive bending, lifting, twisting or stooping;
§ repetitive arm actions – use of the right arm in the above shoulder position and lifting of weights more than 5 kilograms;
§ prolonged sitting;
§ walking up inclines or declines.
59 The plaintiff can cope with work that requires manual dexterity. The above restrictions are permanent.
The Defendant’s medical evidence
Mr Peter Scott
60 Mr Scott, general surgeon, examined the plaintiff at the request of the defendant in September and October 2007. He accepted the plaintiff had a backache and had developed a discogenic lesion of the lumbosacral spine and symptoms of backache, plus left buttock and left thigh pain, which were consistent with the CT scan findings. He said the plaintiff should continue with back and abdominal wall strengthening exercises, and should avoid all actions likely to aggravate his back such as repetitive bending or heavy lifting, in particular, no more than 5 kilograms in weight.
61 He said the plaintiff had suffered a right shoulder injury which was associated with a reduced range of movement suggestive of a rotator cuff lesion.
62 In March 2012, Mr Scott medically examined the plaintiff at the request of the defendant’s solicitor.
63 In relation to the back, Mr Scott said that the investigation of the plaintiff’s back showed evidence of a mild disc bulge at L5‑S1 and of symptoms worsening with time. He described the plaintiff’s back symptoms as minor in severity, intermittent in occurrence and not sufficient to affect his ability to engage in full-time employment. He said the plaintiff should avoid repetitive bending and heavy lifting on a regular basis, in view of the CT findings of September 2007.
64 In relation to the right shoulder, the plaintiff complained of shoulder pain if he raises his arm above shoulder level. He said the plaintiff’s ultrasound of the right shoulder showed some subacromial bursitis without rotator cuff lesion, but there was no evidence of any bunching or impingement at that time. He described the plaintiff’s symptoms in the right shoulder as minor in severity.
Professor Vernon Marshall
65 In June 2010, Professor Marshall, surgeon, medically examined the plaintiff at the request of the defendant’s insurer. Professor Marshall said the plaintiff had work strain injuries to the right shoulder and lower back with permanent partial impairment of the right shoulder and lower back. He said the plaintiff’s spinal condition had stabilised and he was left with a permanent impairment. He accepted there was impairment of the right shoulder.
Mr Steven Leitl
66 In April 2008, Mr Leitl, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant. He diagnosed right shoulder bursitis and probable tendinitis, largely resolved, as well as a mild lumbar spine dysfunction due to the resolving effects of an L5-S1 disc protrusion. He accepted that both injuries were work related. He said the plaintiff did not have a physical capacity to perform unrestricted duties on a full-time basis, mainly because of the low-back condition. He said once a disc protrusion occurs, this remains a point of permanent weakness, and he said the plaintiff will be subject to recurrent flares of back trouble over the years. He imposed work restrictions of repeated lifting of no more than 10 kilograms and avoidance of bending and stooping. He thought there was no impediment to full recovery of the right shoulder condition, but anticipated impediments to recovery from the disc protrusion. He said the future was guarded for all unrestrained activities involving his lower back.
Mr Michael Dooley
67 In May 2013, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. He said the plaintiff complained of a dull low-back pain that at times radiates into his left buttock and down his left lower limb to the calf. The plaintiff had a CT-guided epidural injection. The plaintiff complained of intermittent right shoulder girdle pain. He reported two cortisone injections into the shoulder. The plaintiff reported that both his shoulder pain and low-back pain wake him at night. He takes Panadol for pain and his general practitioner has prescribed a low dose of Lyrica for pain.
68 In respect to the right shoulder, Mr Dooley said regular overhead activity can, in some people, lead to inflammation of the subacromial bursa. The natural history of this sort of problem is improvement with time. Patients who are predisposed to developing subacromial bursitis can note ongoing intermittent symptoms. The plaintiff reported that there was no heavy lifting and no regular overhead activity in his current employment. Mr Dooley said the plaintiff may continue to note intermittent right shoulder girdle pain, which would not be significant and would not deteriorate with time. He said the plaintiff would be restricted in his ability to carry out physical activity at and above shoulder level. He said there was no specific ongoing treatment. The plaintiff’s condition can be self managed with regular exercise and sensible modification of activity.
69 In respect to the low-back pain, Mr Dooley said the plaintiff had aggravated the underlying condition, resulting initially in acute low-back pain. He said, clinically and radiologically, there was no evidence of nerve root compression. The appropriate treatment for the low back is to remain generally active, undertake regular low impact exercise and sensibly modify his activity. He said, as a consequence of the aggravation of the underlying disc disease of the lumbar spine, the plaintiff will continue to note intermittent episodes of low-back pain and occasional lower limb pain. The plaintiff will not be able to carry out heavy physical activity or activities that involve a lot of bending, lifting and twisting. He did not expect the plaintiff’s condition to deteriorate over and above the natural evolution of any underlying degenerative disc disease.
The Plaintiff’s credit
70 There was no challenge to the plaintiff’s credit. He answered questions in a forthright manner. He made concessions; namely that his pain was not getting worse and that he works standing for most of his shift, but can sit down for a rest. I accept the plaintiff as a witness of truth.
71 It was my view that the plaintiff presented as stoical. He was not given to exaggeration and, if anything, underplayed the consequences of his injury. He gave his evidence in a most uncomplaining way. I took the view the he was prepared to endure a fair amount of pain as he went about his daily employment, domestic and social activities. I based my impression on the way he presented in the witness box. I accept that the injury suffered by a stoical plaintiff is not to be viewed as any less serious merely because he manages to remain more active than might have been expected given the level of pain.
Analysis of the evidence
72 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course of, his employment with the defendant. All of the medical witnesses accepted the right shoulder injury and the injury to the back were work related.
Right shoulder injury
73 The plaintiff’s evidence was that he had previously strained his right shoulder on two occasions in January 2007 whilst pushing a trolley and lifting a lid. On both occasions he received no treatment and the injury resolved. I accept that prior to the shoulder injury, the plaintiff’s right shoulder was symptom free.
74 On 13 July 2007, the plaintiff injured his right shoulder when working overhead on pipes. He agreed that he did not seek medical treatment, but continued working. He agreed that he did not report the injury at the time. He said he was examined by Dr Scott for his low back in October 2007 and reported the right shoulder injury. Dr Scott examined his right shoulder and recommended he seek medical treatment. He then lodged a hazard report for the right shoulder.
75 The plaintiff said he used his left arm to protect his right shoulder at work. He received two cortisone injections, which he said marginally improved the shoulder. He has not received any treatment from his medical practitioner since January 2008.
76 All medical witnesses accepted that the plaintiff had suffered a right shoulder injury which was variously described as: subacromial bursitis consistent with subacromial subdeltoid bursitis;[13] right shoulder dysfunction, suggestive of rotator cuff pathology;[14] chronic rotator cuff impingement syndrome as a result of previous subacromial bursitis;[15] probable rotator cuff pathology and impingement syndrome;[16] subacromial bursitis without rotator cuff lesion;[17] right shoulder bursitis and probable tendonitis.[18]
[13]Dr Spencer
[14]Dr Robyn Horsley
[15]Dr Stone
[16]Mr Miller
[17]Mr Scott
[18]Mr Stephen M Leitl
77 The plaintiff underwent a couple of cortisone injections and received chiropractic, then osteopathic treatment. The plaintiff’s evidence was that the restrictions imposed in January 2008 were mainly related to the low-back injury. I accept that the restrictions imposed of no overhead work and no heavy pushing or pulling would be related to the right shoulder injury.
78 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Mr Miller and Mr Dooley, who both examined the plaintiff in 2013. I am influenced to a lesser degree by Dr Horsley and Dr Stone, both of whom examined the plaintiff in 2012.
79 Mr Miller and Mr Dooley accepted that the plaintiff would have difficulty with repetitive activities and activities above shoulder height and could not return to pre-injury duties. They were aware that the plaintiff was performing less physical work. The plaintiff reported to Mr Miller that his symptoms fluctuated and there had been no pattern towards improvement. He told Mr Dooley he suffered intermittent right shoulder girdle pain. Mr Dooley thought the plaintiff’s pain would improve with time but said patients who are predisposed to developing subacromial bursitis can note ongoing intermittent symptoms which can occur spontaneously or be precipitated by overhead activity, lifting, pushing and pulling. In June 2012, the plaintiff reported to Dr Horsley that the discomfort can vary between 2 and 6 out of 10 depending on the activity and its duration. Dr Horsley described his disability in the shoulder as “persisting”, which would be ongoing.
80 Mr Miller said the plaintiff’s prognosis was only fair and he might benefit from surgical intervention. Mr Dooley said the plaintiff’s condition could be self managed with regular exercise and sensible modification of activity. Dr Stone said the plaintiff’s right shoulder may deteriorate in the future.
81 I accept the medical evidence is that the plaintiff cannot return to pre-injury duties because of his shoulder injury. He is restricted in physical activity at above shoulder height which affects his work, leisure activities and home life. The plaintiff has endured these restrictions since 2007.
82 The issue was whether the consequences satisfied the statutory test.
83 The plaintiff said he often experiences strong pain in his right shoulder. He said once per month the pain is severe. His work increases the pain in his right shoulder. Currently, he works a four-day roster. As he progresses through the roster the pain increases and by the end of the roster it is severe. He has four days off work to rest and recuperate. He said he is keen to remain at work, so tolerates the pain as best he can.
84 I accept the plaintiff’s evidence in relation to his description of the pain that he experiences as a result of the injury to his right shoulder. The plaintiff was consistent in reporting to the medical witnesses[19] the pain he suffered. In conclusion, I accept that the experience of pain for the plaintiff is a consequence I can take into account.
[19]Mr Miller, Dr Stone and Mr Dooley
85 The plaintiff’s evidence to the Court was that he received osteopathic and myotherapy treatment from about 2010 for his right shoulder and other parts of his body. Currently, he alternates between attending a myotherapist and, alternatively, an osteopath approximately every three weeks, which he funds. He tries to avoid taking medication but in recent times he has taken Panadol. He avoids activities that increase the pain. I accept the plaintiff has minimum treatment for his shoulder injury.
86 None of the medical witnesses suggested that his treatment was inappropriate. In fact, Mr Dooley said the plaintiff’s condition can be self-managed with regular exercises and sensible modification of activity. Mr Miller was the only doctor to suggest that the plaintiff may benefit from surgical intervention.
87 The plaintiff’s evidence was that he accepted a redundancy at Kraft. He obtained a job making sheds but the work placed too greater strain on his right shoulder. He then obtained work with Murray Goulburn as a process worker. The work is lighter than the work he performed at Kraft and he is able to perform the work.
88 The plaintiff said that approximately eighteen months ago he was offered a promotion and started working as a cheesemaker. He trialled the role for six months, but declined the promotion and returned to his role of assistant cheesemaker because of the pain in his right shoulder. He now performs the cheesemaker’s role when the cheesemaker is on breaks, which requires him to take two samples per 30-minute break, three times per day. The process requires him to use his right arm to dip a cup on a rod into the vat and lift it out of the vat, which hurts his shoulder.
89 The medical evidence is that the plaintiff cannot return to his pre-injury employment. All of the current medical witnesses imposed restrictions upon the work the plaintiff could perform with his right shoulder. Dr Horsley was the only medical witness to separate the restrictions in respect to the right shoulder. She imposed restrictions of:
§avoidance of repetitive over reaching;
§avoidance of repetitive above shoulder activities;
§avoidance of forceful activities involving the right shoulder girdle;
§avoidance of prolonged static postures involving the right shoulder;
§avoidance of using machinery with a significant vibratory component; and
§avoidance of repetitive above shoulder work. She said the plaintiff should ideally work between shoulder and waist height.
90 While the plaintiff has retained a capacity for employment, I accept he cannot return to his pre-injury work duties and that his work activities have been affected by his right shoulder injury. The plaintiff can no longer engage in unrestricted manual labour. For a man who has always performed physical work, that is a significant consequence. I accept the plaintiff’s evidence that he declined a promotion as a cheesemaker because he could not perform the work due to his right shoulder injury. The effect of his right shoulder injury on his work is a consequence I can take into account.
91 The plaintiff said the pain in his shoulder impairs his enjoyment of his social, recreational and domestic activities. He said activities that require reaching or stretching or overhead work with his right arm tend to increase the pain in his right shoulder. He said vacuuming, scrubbing in the bathroom, cleaning the pool and mowing the lawn with a push mower were difficult and painful. He relies upon his wife for assistance with those chores. He told the Court that his wife underwent carpal tunnel surgery last year. He was required to perform more domestic chores, which increased the pain in his shoulder.
92 The plaintiff reported to Mr Miller occasional sleep disturbances.
93 These are consequences I can take into account.
Conclusion
94 Taking all of the evidence into account, I am satisfied that the plaintiff can no longer participate in unrestricted physical activities. He is unable to engage in unrestricted manual work because of his physical restrictions, and is restricted in his domestic activities. He experiences pain in his right shoulder, which fluctuates. He takes medication and receives regular myotherapy and osteopathic treatment. In addition, his sleep is disturbed.
95 I accept the plaintiff has retained his capacity to engage in full-time employment, but he can no longer engage in unrestricted manual duties.
96 I am satisfied that it is fair to describe the consequences of the pain and suffering as being “more than significant or marked” and properly regarded as “considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching this conclusion, I have made a comparison with other cases in the range of possible impairments.[20]
[20]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]
97 Given the length of time since the injury, the ongoing nature of the symptoms and the evidence from the medical witnesses, I accept the restrictions are permanent.
98 No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
99 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
Back injury
100 All medical witnesses accepted the back injury was work related. The plaintiff consistently reported to medical witnesses left lower back pain radiating into his left leg. The current medical view was that the plaintiff suffered an injury to the lumbar spine with musculoligamentous strain, aggravation of degenerative disease and probable disc injury at L5-S1 level. All doctors imposed restrictions.[21] A number of the medical witnesses said the plaintiff was unfit for pre-injury duties, which were of a heavier nature than his current work duties.[22]
[21]Mr Miller, Dr Horsley, Mr Dooley and Dr Spencer
[22]Dr Spencer, Dr Horsley and Mr Miller
101 As to the future, Dr Spencer said the plaintiff is likely to have ongoing intermittent symptoms relating to activity. He may have some degree of lumbar disc degeneration due to his disc prolapse which may progress in the future. Dr Horsley said the degenerative process will lead to difficulties of increased stiffness and reduction of functional tolerance, which will affect his capacity to continue working as an assistant cheesemaker. Mr Miller said the plaintiff’s prognosis was only fair. He said the plaintiff may benefit from a discectomy and fusion in the future. Mr Dooley said the plaintiff continued to note intermittent episodes of low-back pain and occasional lower limb pain.
102 The plaintiff’s evidence is that he experiences strong pain in his low back, which varies. His work increases the pain in his back. This is consistent with what he told doctors. Dr Stone, osteopath, reported that that the plaintiff’s pain was not as severe as previously but is constant in nature and limits his ability to perform activities. Mr Miller said the back pain remains the dominant feature. Dr Horsley said the plaintiff suffers from chronic back pain which varies on the visual analogue scale from 2 to 7 out of 10. It is probable that the plaintiff will continue to note intermittent episodes of the lower back pain and occasional lower limb pain. I accept that the plaintiff’s level of pain and its effect on activities are consequences I can take into account.
103 The plaintiff agreed he did not attend doctors regularly because the medical advice was to remain active and there was nothing that doctors could do for a damaged disc.
104 The plaintiff attended physiotherapy and Pilates, which he does a couple of times per week. He alternates attendance with a myotherapist and an osteopath every three weeks, which he self funds.
105 The plaintiff’s evidence was that he tries to avoid taking medication. He assisted his wife more due to her carpal tunnel issues, which caused him more pain. He consulted his general practitioner, who prescribed stronger medication, Lyrica, to take when the pain is particularly severe. Currently, he takes six tablets per week at night to assist with the pain. However, he told the Court he does not take Lyrica when he is working nightshift as it makes him drowsy. He takes approximately ten Panadol tablets per week.
106 The plaintiff agreed that as a result of a recent MRI scan, he was told by his general practitioner that his back was not getting worse. However, the plaintiff said he was still getting the pain, which is why he went to see the doctor.
107 Mr Miller and Mr Dooley said the plaintiff’s current conservative regime is appropriate and will be ongoing.
108 I accept that the level of treatment the plaintiff has is at the lower end of the scale. This is largely due to the nature of the injury and the advice the plaintiff has received that he needs to self manage the pain. The plaintiff manages his pain through exercise, avoiding activities that increase his pain and taking analgesic medication. These are consequences I can take into account.
109 The plaintiff said his sleep is interfered with by the pain. He wakes feeling stiff and sore, which he reported to the medical witnesses. He takes Panadol and needs time to loosen up before he commences work. His wife said they had purchased a new bed and magnetic underlay to assist the plaintiff in his sleep, but she did not think it had assisted him.
110 The plaintiff said activities which require prolonged, sustained or awkward bending, lifting or twisting tend to increase the pain in his lower back. He reported that cleaning the pool or mowing the lawn are difficult and painful. Since he injured his back, his wife has done more of the outside work. When his wife had surgery, he found the increase in physical activity difficult, and had increased pain in his back. The plaintiff said he attempts to help his wife but he struggles.
111 The plaintiff can no longer kick a ball with his young children and does not engage in chasing games with them. Prior to his work injuries, he and his son engaged in mixed marital arts, an activity he enjoyed with his son. Since his back injury, he has attempted martial arts but found it too difficult and painful. He said it was “pretty upsetting”[23] that he can no longer engage in this activity with his son. Recently, he attempted rifle shooting with his son, but the activity was too difficult for him as the rifles were shot from a prone position and he found lying down in that position was too difficult, painful and aggravated his back injury.
[23]T37
112 The plaintiff said he used to enjoy working on old Holdens. He has given up this activity despite the fact he has two Holdens on the property. He said his back pain made it too difficult to lie on his back on the ground to work on the undercarriage of the Holdens.
113 The plaintiff said he cannot use the chainsaw because he cannot bend with his back[24] because of the pain in his back.[25]
[24]T30
[25]T38
114 I accept that these are consequences which affect his social, domestic and recreational activities which I can take into account.
115 The plaintiff’s wife’s evidence supported the evidence of the plaintiff.
116 The plaintiff said that his injuries have significantly impaired his relationship with his wife. He has found it too difficult and painful to engage in intimate relations with his wife; they are now friends more than anything else. I accept this is a consequence that I can take into account.
117 The plaintiff said his current work makes his back painful at times but he needs to work to support his family. He said his work can cause severe pain, on average once a week. He notices it more towards the end of the four-day roster. He then has four days off, which gives him rest and time to recuperate. He agreed that he is on his feet for most of the shift, but as an assistant cheesemaker he gets an opportunity to sit down for a rest during the shift. I accept that is a consequence I can take into account. Further, the plaintiff is aged forty-two. It was accepted by the medical witnesses that he can no longer perform his pre-injury duties which were physical in nature. In view of the plaintiff’s age and the restrictions imposed upon him, I accept this represents a significant loss to him.
118 Taking all the evidence into account, I am satisfied that it is fair to describe the pain and suffering consequences of the plaintiff’s back injury as being more than “significant” or “marked” and properly regarded as “considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[26] No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
[26]Stijepic v One Force Group Aust Pty Ltd (supra) at [44]
119 I am satisfied that the low-back injury is permanent, given the evidence from all medical witnesses.
120 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the back is successful.
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