Lundberg v Earl's Express Pty Ltd
[2012] VCC 1796
•26 November 2012
| 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-11-04909
| DARREN LUNDBERG | Plaintiff |
| v | |
| EARL'S EXPRESS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2012 | |
DATE OF JUDGMENT: | 26 November 2012 | |
CASE MAY BE CITED AS: | Lundberg v Earl's Express Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1796 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to right elbow – pain and suffering only – continuing employment – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff to bring proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Walsh | Nowicki Carbone Lawyers |
| For the Defendant | Mr B R McKenzie | Herbert Geer |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to his right shoulder as a result of a fall in the course of his employment with the defendant on 30 June 2006. He continued to work, and has, aside from a period following surgery to the right shoulder in January 2010 and for an unrelated health issue in 2011, worked on a full-time basis in the trucking industry through to the present time. He claims to suffer ongoing pain in the shoulder and that a range of recreational and family activities are significantly affected.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment on 30 June 2006. 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 only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, medical and radiological reports and some clinical notes were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather to 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
4 The plaintiff was born in 1969 and is now forty-three years of age. He lives with his wife, and two children, aged six and four. He has two older step children. He was educated to Year 9. After school, he completed a cabinetmaker’s apprenticeship, and from about 1989 through to the present, has worked principally in the transport industry. His work has included maintenance, repairs and driving of large trucks. In March 2006, he commenced work for the defendant as a truck driver.
5 In 1977, he was diagnosed with Type 1 Diabetes. This led to a transplant of his pancreas and left kidney in 2001. He has been on immunosuppressant medication from that time to the present. His diabetes has remained a significant health issue in his life and he currently takes daily insulin.
6 In August 2011, he noticed that his speech had become slurred. Investigations revealed that he had suffered a mild stroke and minor heart attack. He has been on a range of medication relating to his heart condition.
7 Prior to the relevant injury, he enjoyed a range of recreational activities. These included trail-bike riding, which he did regularly in country areas, ten-pin bowling and pool. In particular, he was a keen swimmer, having swum from an early age. He was a capable mechanic, and worked not only upon his own cars and trucks, but vehicles of friends and relatives. In evidence, he described that before his injury, he would be working on cars most weekends.
8 Save as aforesaid, he was healthy and in particular, he had suffered no injury nor disability to his right shoulder. The plaintiff is right hand dominant.
The Injury and its Consequences
9 On 30 June 2006, the plaintiff was unloading a semitrailer at Toyota’s premises. He was attempting to shift a cardboard skid off the trailer of his truck. He was standing approximately 1.3 metres off the ground, lost his balance and fell, striking his right shoulder, elbow and groin.
10 He continued to work, and completed his shift. He was suffering pain, in particular, to the right shoulder and groin. At the outset, the pain was not substantial, but gradually increased, and in December 2008, he went for massage therapy to the shoulder. This continued for approximately twelve months. He also had chiropractic treatment from Dr Markov. Neither therapy provided any significant relief and the pain increased.
11 On 11 April 2009, he went to his general practitioner, Dr Demar. There is no report from that doctor. In July 2009, he consulted a new general practitioner, Dr Shirzada. Dr Shirzada noted stiffness, tenderness over the AC joint, with restricted movement and with positive impingement signs.[1] A right shoulder x-ray and ultrasound of September 2009 showed degenerative changes at the AC joint with thickness at the bursa and a partial tear of the supraspinatus tendon. The report concluded that the thickened bursa may reflect adhesive capsulitis[2].
[1]Plaintiff’s Court Book 27
[2]Also known as ‘frozen shoulder’
12 In August 2009, Dr Shirzada referred the plaintiff to Mr Dallalana, orthopaedic surgeon. He received a history of discomfort in the shoulder and a restricted range of motion. He said the clinical picture was consistent with adhesive capsulitis. Initial treatment in September 2009 involved hydrodilatation of the shoulder. This proved not to be effective and in January 2010, Mr Dallalana undertook an arthroscopy which revealed “extensive synovitis within the glenohumeral joint” consistent with adhesive capsulitis. He performed a “clearance” of the glenohumeral ligament with synovectomy. The joint was also manipulated under general anaesthetic. The plaintiff was off work until May 2010. At Mr Dallalana’s last review of April 2010, he noted there was 5 degrees less range of motion than before surgery. He noted there was not extreme pain at the margins of his range of motion and the plaintiff had good power in the limb. He expected that the condition would resolve after approximately two years. The plaintiff also underwent physiotherapy for a period, approximately twice per week. He has not had any further surgical intervention.
13 He has received little further treatment from his general practitioner, or any other doctors. He has been prescribed occasional anti-inflammatory medication, and at the current time takes Panadol Osteo, an ‘over-the-counter’ pain-relieving medication, four or five times per week. He has recently retained another general practitioner, Dr Rawet, and has seen him only once. He obtained a prescription for medication to assist with sleep. He did not disclose to that doctor the fact that he had a right shoulder injury. He said in evidence that he was reluctant to take medication for his shoulder problem because he is on a significant amount of medication, both for his diabetic and heart conditions. He simply puts up with the pain and restriction. He has been told by doctors that he is able to take Panadol.
14 In May 2010, the plaintiff returned to work with his father-in-law’s company driving trucks. He resumed full-time work, working fifty to sixty hours per week. He owns his own large Kenworth truck and drives within Victoria. According to his affidavit, he takes care to ensure there is no excess strain placed upon his shoulder. He is unable to “throw a chain” as he was able to do before injury. This involves using his right arm to throw a chain over the trailer to secure the load. He now uses lower contact points, or lighter straps. His step father recently passed away, and he has been involved in managing the business with a view to winding it up. He proposes to resume full-time truck driving. The activities involved in truck driving cause pain, but he is able to make do as he is concerned to provide financial security for his young family.
15 According to his most recent affidavit,[3] the right shoulder injury has led to a range of consequences. He says:
“I believe that the key to limiting the pain which I suffer on an ongoing basis from the shoulder is avoiding placing strain upon the shoulder as much as I can and wherever I can. I am right hand dominant which means that there is a significant impact upon my life.”[4]
[3]Plaintiff’s Court Book 19
[4]Plaintiff’s Court Book 19
16 If he does not move the arm, there is little, if any, pain. Pain is exacerbated with any activities at or above shoulder level, or if he uses the right arm to carry any significant weight. According to the various medical reports, all doctors accept there is restriction of a range of movement with the shoulder.
17 Sleep is a particular problem for the plaintiff. He gets about five hours’ sleep per night and has recently obtained a prescription for medication to assist. It is difficult for him to get his shoulder in a comfortable position. Sometimes it takes half-an-hour to get to sleep, and sometimes four hours. As a result, he claims that he is tired and lethargic. He is unable to engage with his young children as he would wish. His activities with them are limited, in particular, sports and games, which he would otherwise play. He had a particular passion for swimming from a young age and is now unable to do freestyle. His children are keen on the water and he regrets not being able to teach them swimming and swim with them. He has not ridden trailbikes since the injury and sold two which he formerly owned. He cannot play pool in hotels nor at home, nor go ten-pin bowling.
18 His work with cars and trucks is significantly restricted. He still does some work on his own car and truck in order to maintain them. He occasionally does work on friends’ and families’ cars “when he has to”. He has difficulty lying under the car, raising his right arm to work on the underpart, or leaning into the bonnet to perform any strenuous activity using the right arm.
19 Mr Dallalana mentioned the possibility of a further hydrodilatation to the shoulder but he has just put up with the pain and restriction and not returned to see that doctor.
Medical Opinions
20 I shall not detail the findings and opinions of the consultant practitioners as generally there is uniformity in their views. The defendant accepts the plaintiff’s right shoulder injury is related to the work incident, that there was the requirement for operative treatment, and that the condition is permanent. The real issue is whether, given the range of activities in which the plaintiff is involved, the consequences to him achieve the “very considerable” level as the legislation requires.
21 The plaintiff was examined by Mr Kenneth Myers, general surgeon, in January 2012. He noted the ultrasound of September 2009 showed a tear to the supraspinatus tendon with bursitis and probable adhesive capsulitis. He thought there would be no future improvement and that the injury would cause the plaintiff marked incapacity in relation to his truck driving, preventing him from doing heavy lifting.
22 The plaintiff was examined by Mr Michael Fogarty, orthopaedic surgeon, in January 2012. He described to Mr Fogarty that his shoulder felt “uncomfortable” and that movement was restricted. The plaintiff complained that a range of leisure activities were affected. There was a limited range of motion in the right shoulder. Mr Fogarty said the plaintiff’s injury was a partial thickness supraspinatus tear of the rotator cuff plus bursitis and adhesive capsulitis. He said the prognosis was fair. He said the plaintiff was probably incapacitated for pre-injury employment as it involved unloading of trucks. This would be as a result of persistent shoulder pain and a restricted range of movement.
23 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, in October 2012. He agreed with the diagnosis of the other practitioners. He said the prognosis for the shoulder was poor and the plaintiff was not capable of totally unrestricted employment, particularly heavy, physical employment. He said if there was any progression of the pain and stiffness of the shoulder, the plaintiff would have difficulty truck driving.
24 On behalf of the defendant, the plaintiff was examined by Mr Peter Kudelka, orthopaedic surgeon, on a number of occasions between 2009 and 2012. He also agreed with the diagnosis of the plaintiff’s condition. He noted the plaintiff to be of “strong personality and motivation”. He said that the long-term prognosis for the shoulder was that there would always be pain, weakness and restricted movement. He said the plaintiff would benefit from ongoing analgesic and anti-inflammatory medication. He accepted that the injury significantly affected the plaintiff’s family activities with his young children. He said there was a permanent loss of function of the right shoulder due to the workplace injury.
25 Finally, the plaintiff was examined by Dr Clive Kenna, physician in occupational medicine. He noted a range of restriction of movement upon examination, together with a loss of mobility of the right shoulder. He said the condition was stabilised and would not resolve any further. It impacted on his occupation as a truck driver and activities of daily living.
Conclusions
26 As stated, there is no difference between the various medical practitioners as to the nature and condition of the injury to the plaintiff’s right shoulder. He has suffered a modest tear to the supraspinatus tendon, with bursitis, and resulting in adhesive capsulitis. All of the practitioners accept that this has led to some pain in the shoulder, depending on the activities in which he is involved, and a significant restriction in range of movement. The plaintiff’s presentation immediately after injury was somewhat unusual. He remained at work and did not consult any doctors for a period of almost three years, although did receive some massage and chiropractic treatment. However, the defendant accepts the causative relationship between injury and the workplace incident.
27 Mr McKenzie, for the defendant, submits as follows:
· The plaintiff, aside for periods of time off work for his heart condition, and a period of recovery from right shoulder surgery, has maintained a full-time employment through to the present time. That has involved truck driving up to fifty or sixty hours per week. The plaintiff has been able to cope with this work and proposes to continue to do so.
· I should have some reservations about the credibility of the plaintiff. He said there were inconsistencies in the plaintiff’s evidence as to the number of hours he actually worked, and in relation to the medication he was taking.
· The plaintiff has very little treatment at the current time. He has not even advised his new general practitioner of his shoulder injury. There has been no re-attendance with the orthopaedic surgeon, Mr Dallalana, despite the plaintiff being offered the prospect of a further hydrodilatation procedure. The plaintiff takes very little in the way of medication, with occasional over-the-counter analgesia.
· The plaintiff is independent of his activities of daily living.
· He still remains involved with his young children and their activities, taking them to the park and to various events.
· While the plaintiff’s capacity to undertake mechanical repairs of cars and trucks is restricted, he is still actively involved in that area, working on not only his own truck and cars, but occasionally those of friends and relatives.
28 In my view, the starting point is an assessment of the credibility of the plaintiff. I formed the view in the course of his cross-examination that he is a decidedly honest and straightforward man, generally making light of what is undoubtedly a significant injury to his right shoulder. He is in every sense of the word a stoic. The fact that he sought little treatment in the first few years after injury is more a reflection upon his stoicism and capacity to put up with pain and restriction rather than a reflection of the modesty of the symptoms. I accept his description of pain and limitation as set forth in his affidavits, in cross-examination and in the histories provided to the various doctors. I do not accept the submission of Mr McKenzie that I should have any reservations about his credibility.
29 I accept that the assessment of whether the plaintiff meets the “very considerable” level in respect of consequences of injury requires an examination of the activities which the plaintiff has been able to retain, as well as those which are affected or lost. As Mr McKenzie points out, the plaintiff has been able to retain an extensive range of work and recreational activities. He has remained in full-time employment as a truck driver, working long hours. However, in my view, this is more a reflection of his ability to put up with his problems and his determination to adequately provide for his young family than to the modesty of the symptoms. I accept his explanation that he gets on with things, and finds ways around his difficulties. His determination to persist in employment despite what I accept as pain and restriction in the heavier activities, is impressive.
30 While undoubtedly many of his domestic and recreational activities have been retained, a significant number have been restricted or lost. I accept that he cannot go trailbike riding, play pool or go ten-pin bowling. I accept his evidence that swimming was a particular interest for him, which is now lost, made more significant because he is unable to participate with and teach his children how to swim.
31 Clearly, he has little in the way of treatment or medication, but again, in my view that is a reflection on his stoicism and preparedness to put up with discomfort and restriction than anything else. I accept that his sleep is significantly affected and that he finds it difficult to get comfortable in order to go to sleep and that the number of hours of sleep has decreased. An impairment in any person’s ability to have a comfortable night’s sleep is a major consequence of injury.
32 The most significant consequence is the pain that he feels in his right shoulder and the restriction of movement. While it is not present all the time, it comes on with activity or with stress or lifting. This restricts his capacity to work in a free and unrestricted manner, to undertake the mechanical repairs to his vehicles and the activities to which I have referred.
33 It is necessary to compare the impairment and loss of function as a result of the plaintiff’s right shoulder injury with other cases in the range of possible impairments and losses of body function. The focus is upon the consequences to this particular plaintiff, although viewed objectively. When considering this test, I am satisfied that the consequences to the plaintiff do reach the “very considerable” level as the legislation requires.
34 I propose to make consequent orders.
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