Mahood v Victorian WorkCover Authority
[2011] VCC 1374
•27 October 2011 (Revised 3 November 2011)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-05789
| GLEN MAHOOD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 24 and 24 October 2011 |
| DATE OF JUDGMENT: | 27 October 2011 (Revised 3 November 2011) |
| CASE MAY BE CITED AS: | Mahood v Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2011VCC 1374 |
REASONS FOR JUDGMENT
---
| SUBJECT: | ACCIDENT COMPENSATION |
| Catchwords: | Serious injury – pain and suffering – right shoulder injury – significance of remaining work capacity. |
Legislation Cited: Accident Compensation Act 1985, s.134AB
Cases Cited: | Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 – Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 – Sutton v Laminex Group Pty Ltd[2011] VSCA 52 – Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 |
| Judgment: | Leave granted. |
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell | Arnold Dallas & McPherson |
| For the Defendant | Mr A J Moulds SC with | Hall & Wilcox |
| Ms S Manova | ||
| HIS HONOUR: |
1 Glen Mahood is aged thirty-five years. He claims that he injured his right shoulder on 7 September 2006 while working at an abattoir in Kyneton. He is right-handed. He seeks leave under s.134AB of the Accident Compensation Act 1985 (“the Act”) to issue common law proceedings to recover damages in respect of pain and suffering.
2 Mr Mahood was the only witness called. He was called for the purposes of cross-examination. He filed two affidavits. A number of medical reports and other documents were tendered.
3 To obtain leave, Mr Mahood must establish that he has suffered a “serious injury” as defined.
4 Mr Mahood is in a de facto relationship and has two sons, aged three, almost four years, and aged fourteen months. Since leaving school, he has been engaged in manual labour, and from 2005 he was employed through a labour hire company, Compass Recruitment, as a labourer.
The Circumstances of the Injury
5 Mr Mahood’s work included trimming, which he said was his heaviest work. It was constant and fast, involving a lot of above shoulder work, and in particular required twisting his right arm, wrist and shoulder while adopting an awkward posture.
6 Mr Mahood gave evidence of an incident on 7 September 2005 which led to the claimed injury to his right shoulder. He was stripping beef carcasses, which weighed approximately 200 kilograms, and were pushed along a rail by him to the slaughtermen. The carcasses regularly fell short, and on that day a carcass weighing over 200 kilograms stopped well before his platform. He had to reach around a vertical pipe at the corner of the platform, hold onto it to prevent him from overbalancing and pull it towards him. As he did so he felt a "pop", to use his expression, in his right shoulder, followed by severe pain. He was taken to hospital and given strong painkillers.
Mr Mahood’s Treatment by Mr James
7 Mr Mahood was referred to Mr James, an orthopaedic surgeon, who arranged an MRI scan and told him he had suffered a tear and a SLAP lesion. Mr James makes the following observations or relates the following history of Mr Mahood of relevance:
“Following the incident at the abattoir on 7 September 2005, Mr Mahood developed a significant pain and tenderness around the anterior aspect of the glenohumeral joint. A review of the X-ray showed an elongated glenohumeral joint and no significant radiological deficit or irregularity. Clinically Mr Mahood had a limited range of glenohumeral motion because of the pain, but appeared to have good motor function and intact sensation despite transient episodes of numbness and tingling.
An MRI was performed in September 2006 and the resulting report described an abnormal signal evident in the biceps labral complex with fraying of the fibres associated with the insertion of the long headed biceps tendon to the superior labrum, consistent with a SLAP type lesion.”
8 Mr James stated that Mr Mahood was still suffering from pain and that following a review on 24 October 2006, he was admitted to hospital under his care and surgery and an arthroscopic inspection occurred. The principal findings were a mobile arm at the glenohumeral joint with no resistance to the usual range of motion. There was no excessive laxity AP or inferior identified. The principal finding within the glenohumeral joint was abrasion on the undersurface of the rotator cuff above the biceps. The biceps looked stable and normal in appearance, and the anterior portal was established, and the biceps probed with a hook probe and found to be stable. The bicep was not able to be drawn away from the glenoid, suggesting the SLAP lesion had healed. The glenoid articular surfaces were undamaged.
9 The anterior labrum was probed and found to be folded back, but was present and still attached to the anterior margin of the glenoid. The anterior capsule looked a little attenuated, but there was no fresh rent or tear evident. The abraded undersurface of the cephalad aspect of the rotator cuff was then debrided with the shaver. The subacromial space was entered and found to be quite tight anteriorly, with a prominent anterolateral beak to the under surface of the acromion. There was haemorrhage and erythema over the anterior aspect of the cuff where it had been impinging against this region of bone. A decision was therefore taken to perform a subacromial decompression.
10 The early post-operative recovery was satisfactory and reviews occurred in November and December 2006. Mr Jones states that Mr Mahood managed well until April 2007, when he returned for review, having redeveloped symptoms about the right shoulder with pain radiating out from the tip of the acromion over the deltoid, consistent with rotator cuff tendonitis.
11 Mr James recommended that Mr Mahood reduce his activities using the arm in an abducted or elevated position. The review in April 2007 was the last occasion that Mr James saw Mr Mahood. He made the following comments in the conclusion of his report:
“The initial diagnosis per MRI was of a SLAP lesion. At arthroscopy the superior labrum and biceps attachment was sound. He had impingement evident by way of abrasion on the under surface of the rotator cuff and erythema and abrasion on the cephalad surface of the rotator cuff secondary to impingement against the inferior surface of the prominent anterior hook to the acromion.”
12 Mr James stated that his expectation was that Mr Mahood would make a full recovery and be able to resume full normal duties over a period of six to twelve months after the surgery.
13 I interpose that it appears that Mr Mahood also suffers from a left shoulder injury, but as the parties submitted, I cannot and do not take that into account in considering this application.
Mr Mahood’s Work after the Injury
14 In the meantime, Mr Mahood had returned to work, intending to go on light duties. He swore that he was put straight back to normal duties, but that after his visits to Mr James, he improved for a while but suffered tendonitis in his right arm. He was never able to return to work to the stripping room. He did lighter work such as rodding and deveining, shooting or stunning stock with a bolt gun. He also spent some time teaching others to trim.
15 Mr Mahood stated:
“By and large I managed this type of work, although [I] would have had difficulties at times. My shoulder would be very sore by the end of the day and I readily took Nurofen or Panadol at night for shoulder pain. Occasionally I needed a few days off work.”
16 In February 2010, Mr Mahood was dismissed. Soon after, he started work with Scato Plus which makes compost bin blocks. He worked as a labourer, initially for three, but finally, for four days per week. He drove a truck and a bobcat. He apparently drove from Castlemaine to Newbridge to do that work.
17 About five months ago, Mr Mahood commenced work with All Stone Quarries as a driver of a front end loader. He works about 10 or 11 hours per day, on weekdays and a half day on every second Saturday. He therefore works 55 to 60 hours per week. The last hour each day he spends cleaning a piece of machinery called a pug mill that assists in providing wetter concrete to customers. As part of the duties of operating the pug mill, he has to perform some pick and shovel work and clean up the slurry or the debris around the pug machine.
18 Mr Mahood stated:
“Generally speaking, the driving duties do not trouble me significantly,
though some of the cleaning duties at the end of the day can be difficult”
and
“My current job is reasonably light work. However, often by the end of the working day I have an increase of pain in my right shoulder. I am often in pain when I get home, and am less active outside of work.”
The Evidence of the Treating General Practitioners
19 In addition to Mr James, the other treating doctors were Mr Mahood's two general practitioners, the first of whom was Dr J Garvey in Kyneton, who prepared reports on 22 May 2008 and in April this year.
20 Dr Garvey stated that on examination in January 2007, Mr Mahood had reduced range of motion of his right shoulder and pain on flexion and abduction. She implemented a plan of rest and analgesia and referred him for ultrasound. The ultrasound showed that he had quite significant bursitis, and even after a week of rest, he still had quite marked pain on abduction. She continued to prescribe anti-inflammatory medication analgesia, and at that point Mr Mahood went back to work on light duties. He was also referred back to the orthopaedic surgeon, Mr James.
21 Dr Garvey states that she saw Mr Mahood in February 2007 when he said his shoulder was still sore. He remained on light duties, but he had ongoing pain and continued with light duties, specifically not working above his head. She reviewed him after he had seen Mr James, and Mr Mahood reported that he had full range of movement of his right shoulder and no pain. At that point he returned to full work duties. She stated that until the request from the solicitor for the written report, she was unaware that he had any ongoing problem with his shoulder. He described persistent niggling pain in the shoulder but advised that he was working at full duties and occasionally took Panadol and Nurofen. She suggested another review from Mr James; however Mr Mahood reported that the orthopaedic surgeon had told him that there was little else that could be done.
22 At some point thereafter, Mr Mahood revisited Dr Garvey, because in her most recent report, she states that she last saw him regarding tendonitis of his shoulder on 18 May 2009. In that report, Dr Garvey stated that Mr Mahood presented for a WorkCover clearance certificate at this visit and –
“… he reported that he was managing his current duties and had full range of movements of both shoulders. He said he was only occasionally taking Nurofen Plus. At this point it was my understanding that his injury had healed completely and was fully functional.”
23 Dr Garvey recorded that one of her colleagues saw him in May 2010 and reported that –
“… his right shoulder had become painful again with chronic tendonitis,
reduced range of movement and was injected under steroid injection.”
24 The circumstances surrounding that procedure were not further identified.
25 After Mr Mahood moved to Castlemaine, his treating general practitioner has been Dr R Mayes, who has prepared two letters reporting on the treatment provided. The first thing to note is the patient summary that forms part of the patient notes that were tendered as Exhibit 3. That summary shows Mr Mahood’s current medication to include Nurofen, 200 milligrams, one to two tablets up to four times a day as needed, and Panadeine Forte tablets, of one to two tablets four-hourly as needed.
26 These medical notes record a number of visits, but not all related to the right shoulder. There were visits in late 2010 and then on a number of occasions this year.
27 Dr Mayes’ summary report states:
“Glen has ongoing problems with pain and immobility in both shoulders. Pain experienced anteriorly and anterolaterally in both shoulders in most range of motions, particularly above bench height. The diagnosis is bilateral rotator cuff injury with tendonitis to both shoulders. I have attached x-ray and ultrasound reports which do not reveal any osteoarthritis, impingement nor bursitis which would be amenable to surgery.
The prognosis is poor at this stage as his condition seems to have stabilised leaving him with ongoing incapacity in both shoulders. He is currently working at Staco Plus in the filling crew. Glen packs and stacks boxes weighing in at 18 kilograms, stacking from bench height to a palette on the floor. He has been able to avoid over bench height work. He has persisting pain and loss of shoulder mobility. He will need to continue to avoid any work which involves lifting more than five kilograms over bench height.”
28 Dr Mayes referred Mr Mahood to an orthopaedic surgeon, Mr McCullough, but Mr Mahood did not pursue that referral, apparently taking the view that the doctors could not assist him further by any intervention.
29 In the most recent report of 20 September 2011, Dr Mayes states:
“At this time Glen has received no further specific treatment for the injury. Glen has moved to an alternative workplace where he has been able to avoid further aggravation of the injury. Glen was working at a quarry, working the motorised lifting equipment. In so doing, he has been working at full capacity, as he is not required to lift weights or perform repetitive tasks which would aggravate the shoulders. Glen was very happy at this work and felt the injury had stabilised.
Glen has persisting pain and immobility in both shoulders. He manages the pain with simple analgesia (Nurofen Plus three times daily) and avoiding aggravation. The condition I believe has stabilised, but it is my opinion that Glen will continue to have symptoms long term and is recommended to avoid work which would involve repetitive use of shoulders, particularly lifting above bench height.
Glen appears to have found a job where we can work at full capacity despite the injury, but the recommendation would stand long term or permanently to avoid the aforementioned activities which would aggravate the rotator cuffs.”
30 There has also been some radiology and imaging. In January 2007, the report of radiology stated:
“SHOULDER ULTRASOUND
No identifiable tendon disruption is found.
The bursa is generally thickened with resultant bunching against the coracoacromial ligament during abduction. No obvious fluid collection.
CONCLUSION
Bursal inflammatory changes account for the presenting symptoms. Follow up ultrasound guided steroid and local anaesthetic injection may be of assistance if symptoms persist.”
31 The results of a later July 2010 right shoulder ultrasound and x-ray showed no abnormality.
Mr Mahood’s Evidence of the Consequences of the Injury
32 The next point I address are the consequences that Mr Mahood claims have followed from his claimed right shoulder injury. His case is that he suffers significant right shoulder pain, particularly when working with his hands above his right shoulder. The pain is severe when performing repetitive work of that nature. The shoulder is stiff and sore all day, particularly first thing in the morning. It is worse in cold weather. It is not quite as bad when the shoulder is warmed up.
33 He regularly takes Nurofen Plus. He used to take Panadeine Forte on prescription but he states that he cannot afford to take the time off work to go and obtain a prescription. He has a limited range of right shoulder movement. In cross-examination, he was asked to move his hands above his head. The movement was described by Senior Counsel for the defendant as 90 degrees from shoulder to elbow and by Counsel for the plaintiff at about 110 degrees. He states that he struggles with some household tasks such as gardening, hanging out the washing, helping the family in its moves to new homes and also in driving long distances.
34 Mr Mahood’s evidence is that his sleep has been affected by the shoulder injury. He finds it difficult to get comfortable. This affects his relationship with his partner because he has become short tempered. He has become irritable and he suffers from a lowered sex drive. So far as recreational matters are concerned, he says that the family engages in less social activity, he cannot play sport and he is limited in his favourite activity of hunting, which he used to do for a day or a day/night trip, twice a month. He has put on weight as a result of not being active.
35 The defendant tendered a DVD showing ten minutes of Mr Mahood and his family in October 2010. It showed him lifting one of his small children in and out of the family car and visiting a pet shop or aquarium, purchasing what appeared to be a goldfish. On the way back to the car the footage showed Mr Mahood lifting the plastic bag full of water and the fish in his right hand above shoulder height. His right arm was in an extended upper position. He was asked in cross-examination whether he was in terrible pain when that film was being taken, and he said that he was not, that the pain, varied from day to day, and it was worse if he was doing repetitive work.
36 I generally found the plaintiff's credit to stand when he was being cross- examined. I did not note significant areas where it appeared that he was attempting to misstate matters. He made some concessions and did not overstate his case.
37 I should state that in the medical evidence there is some reference, particularly in a medico-legal report of Mr Dooley to which I will come, that the plaintiff’s pain may be due to psychological causes. It was agreed, and as it must be, that I cannot take such factors or causes into account in determining whether the plaintiff suffers from a serious injury. I do not take them into account.
Medico-Legal Evidence
38 There was then some medico-legal evidence presented to the Court. On behalf of the plaintiff, reliance was placed on a report from Professor Disler, in May this year. Professor Disler describes himself as a specialist in internal medicine, rehabilitation medicine and geriatrics. He recorded as part of the history that Mr Mahood takes between six to nine Nurofen Plus tablets a day: three in the morning, three at work and three when he comes home. He referred to the right shoulder injection in July 2010 that I mentioned previously.
39 According to Professor Disler, Mr Mahood’s medical condition was an incompletely resolved, surgically treated, soft tissue injury of the right shoulder. Professor Disler stated:
"As it is now five years since the injury, and he continues to have pain, he is likely to have pain in the right shoulder in the future, particularly when he exerts himself or works above shoulder level.”
40 The defendant's medico-legal material was first a report in February 2007 from Mr H Weaver, an orthopaedic surgeon. He stated that clinical examination revealed that Mr Mahood was demonstrating a very substantial and generalised loss of right shoulder movements.
41 Then there was Mr P Kierce, also an orthopaedic surgeon, who provided a report in September 2008. He concluded that it was consistent with Mr Mahood’s description of the mechanism of injury and the operative findings that he had abraded the right rotator cuff by impingement on his right acromion in the injury which had occurred in September 2006. He stated:
“In spite of subacromial decompression having been performed, he is still suffering pain and limitation of movement due to what I suspect is adhesive capsulitis of the right shoulder.”
42 Finally, there is the most recent medico-legal report from Mr M Dooley who is an orthopaedic surgeon. He prepared his first report in November 2010 and stated that as a consequence of the injury, Mr Mahood sustained some damage to the glenoid labrum and long head of biceps tendon. He stated:
“His ongoing pain in part probably relates to some inflammation in the shoulder area. Some of his ongoing pain also relates to psychological reaction to his injury and subsequent dismissal from work and the changes in lifestyle that have occurred. The loss of right shoulder function as a result of the compensable injury is mild to moderate. This loss will persist for the foreseeable future.
. . .
I believe that Mr Mahood will continue to note some intermittent right shoulder girdle pain. He will continue to note some stiffness of the shoulder and he will continue to note difficulty with every activity or activity above shoulder level. No further specific treatment is required.”
43 On 11 October 2011, Mr Dooley stated:
“He now has a better range of active motion and the shoulder can be assessed much more easily, passively. I remain of the view that Mr Mahood had a psychological reaction to this injury and subsequent dismissal from work. I believe that his symptoms in this regard are improving and ultimately will settle. I do not believe ongoing formal conservative measures are necessary in his management, and there would be no indication to consider any further surgical intervention.
. . .
I believe that Mr Mahood will continue to note intermittent right shoulder girdle pain. I believe that he will be left with some restriction of right shoulder motion and that overall this will be mild. I would not expect his condition to deteriorate in time.”
The Parties’ Submissions
44 The plaintiff’s Counsel emphasised the consequences to him of the shoulder injury, which I have previously outlined. He also emphasised his age and the fact that he was required to continue medication.
45 The defendant's case was that the plaintiff's injury was not very considerable, that I must disregard psychological consequences, and also, that I needed to judge the impairment or injury against the range of possible impairments and make what was described as a value judgment. It was submitted that the plaintiff is not greatly restricted in his activities, for instance, he had not really played any active sport for some time, and, with a young family, his ability to take part in hunting and fishing was restricted.
46 Emphasis was placed on the work the plaintiff carries out, particularly the number of hours he now worked and his increasing income as shown by the income tax returns.
47 Finally, it was submitted that it was particularly relevant that there was no evidence of a recent, significant increase in pain.
Determination of the Application
48 I then have to determine whether the right shoulder injury was a “serious injury” bearing in mind the evidence and submissions I have referred to.
49 Section 134AB(38)(c) of the Act provides that an impairment or loss of body function is not to be held to be serious unless the consequence, in this case pain and suffering is, when judged by comparison with other cases in the range of possible impairment or losses of a body function or disfigurements as the case may be, fairly described as being more than significant or marked and as being at least very considerable.
50 Whether or not the injury satisfies this test is largely a matter of impression and value judgment. In Stijepic v One Force Group Aust Pty Ltd, Ashley JA stated:
“… 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. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.[1]
[1] [2009] VSCA 181 at [42]
51 The assessment is to be made at the time the application is heard by the court.
52 In Haden Engineering Pty Ltd v McKinnon,[2] Maxwell P stated that in respect of pain and suffering consequences, the court must assess the intensity of the pain which the plaintiff experiences by reference to what he said and did about the pain, what the doctor said and what the objective evidence showed about the disabling effect of the pain.
[2] [2010] VSCA 69 at [12]
53 I have set out the evidence relevant to each of those matters and the submissions.
54 Reference was also made to the more recent Court of Appeal judgment in Sutton v Laminex Group Pty Ltd.[3]
[3] [2011] VSCA 52
55 In Kelso v Tatiara Meat Co Pty Ltd,[4] Dodds-Streeton J A stated:
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.[5]
[4] (2007) 17 VR 592, 691
[5] at [199]
56 In my opinion, a consideration of the evidence leads to the conclusion that the plaintiff has established that the pain and suffering consequences of the injury to him are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
57 My reasons for reaching that conclusion are as follows. Mr Mahood suffers continuing significant pain and is likely to for the foreseeable future. I place more reliance on the views of his treating general practitioner than on the medico-legal reports. I have already set out what Dr Mayes stated in his reports. In summary, they were that Mr Mahood has persisting pain and immobility in both shoulders and although the condition is stabilised, he will continue to have symptoms long term and he is recommended to avoid work which would involve repetitive use of shoulders, particularly lifting above shoulder height.
58 Connected to that is the continuing medication of Nurofen and Nurofen Plus tablets that I find that Mr Mahood does take. It can amount to up to eight tablets a day.
59 The next factor is that Mr Mahood, at the time of the injury and today, was and is a young man. He faces a future where he may be required to take such medication long term.
60 There is then the fact that his pain restricts the kind of work that he can undertake. He is a manual worker, but needs to find work that does not require him persistently to lift or extend his right arm above shoulder height. That is a significant restriction and consequence for a thirty-five year old whose work history is limited to manual work.
61 I accept also that Mr Mahood’s pain from time to time does restrict his ability as a father to play with his young children. This restriction is likely to be of increasing significance as the children grow older.
62 Mr Mahood had some restriction in the recreational activities that he enjoys, but I accept the defendant’s submission that they may also be explained by being tired from the work he is undertaking.
63 The work that Mr Mahood does is a significant factor in the determination of this application. It requires close scrutiny. He is able to work at least 55 hours per week doing manual work. On any view that is a substantial work capacity. However, on the evidence it is work that generally does not require him to lift his right arm above shoulder level or extend it in the way that he was able to do before the injury.
64 In this respect, Mr Mahood’s manual work, although for 55 hours or more, is work that he has had to choose because of the restriction in his ability to use his right shoulder.
65 The significance of the amount of work that Mr Mahood can do is open to a number of interpretations, some supporting his application and some against. Some authorities recognise the concept of the more stoical plaintiff and the fact that such a person is not to be penalised.
66 Viewed in the context of all of the evidence, I consider that his working hours and his work reveals a young man, who probably because of the need to support his family, has decided to continue in work that does not require use of his right shoulder to an excessive extent.
67 However, the work field for him in manual labour is restricted. That is a significant consequence for a manual labourer. I place particular reliance on the observations of Mr Mahood’s current treating general practitioner, Dr Mayes, to which I have referred.
68 The serious injury is permanent, in that it is likely to last for the foreseeable future.
Conclusion
69 I grant Mr Mahood leave to bring proceedings at common law to recover damages for pain and suffering in respect of an injury arising out of and in the course of his employment and occurring after 20 October 1999.
0
4
0