Manev v Sutton Tools Pty Ltd
[2013] VCC 93
•22 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01730
| DONCO MANEV | Plaintiff |
| v | |
| SUTTON TOOLS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 February 2013 | |
DATE OF JUDGMENT: | 22 February 2013 | |
CASE MAY BE CITED AS: | Manev v Sutton Tools Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 93 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan | John Dellios & Associates Pty Ltd |
| For the Defendants | Mr J Simpson | Thomsons Lawyers |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to bring a proceeding claiming damages for pain and suffering consequences of an injury sustained by him to his right shoulder in the course of his employment with the first defendant on 23 September 2004.
2 In this matter, the issues which arose for my determination were, firstly, whether the plaintiff has established on the balance of probabilities that the symptoms which he has described are organically based and, secondly, whether the plaintiff suffers an impairment of body function as a result of the incident which occurred on 23 September 2004, the pain and suffering consequences associated with such impairment being sufficient to meet the statutory definition of “serious”.
3 It was submitted on behalf of the defendants that:
(i) The function of the plaintiff’s left shoulder and right shoulder involve discrete body functions;
(ii) The consequences of any impairment of function which the plaintiff suffers in his right shoulder should be assessed independently of any impairment of function which the plaintiff suffers in his left shoulder; and
(iii) The evidence is insufficient to allow an analysis of the consequences to the plaintiff arising by reason of the impairment of function of his right dominant shoulder independently of that arising by reason of the impairment of his left shoulder.
4 In an affidavit sworn 24 November 2010, the plaintiff described the following ongoing consequences of his injury:
· He suffers from pain and limited movement in his right shoulder which was present all the time, but varied in intensity;
· By reason of a necessity to favour his left arm, he had developed symptoms of pain in his left shoulder;
· His right shoulder pain was aggravated by activities such as lifting heavy objects, working above shoulder height or sleeping on his shoulder;
· His injuries restricted his ability to undertake maintenance tasks around the house including activities as simple as just cleaning the gutters and mowing the lawns;
· His sleep was disturbed by his shoulder pain, causing him to wake and have to get up during the night;
· He managed his symptoms by undertaking exercises in a sauna and warm water almost every day.
5 In the course of evidence given in this application, the plaintiff said that:
(i) He attended his local swimming centre between five and seven times a week for the purpose of exercising in the water. He said that, though he did not enjoy these sessions, they were necessary for him to control his symptoms;
(ii) The symptoms in his right arm caused him difficulty sleeping and that, during the night, he often had to get up or hang his arm over the side of the bed in order to reduce his symptoms;
(iii) By reason of the combined effect of the symptoms in his right arm and those in his left arm, he had had to cease work. I am satisfied, given the fact that the plaintiff had few interests in his life outside his work, that this was a loss for him which was a very significant one.
(iv) Before the accident, his main activity involved his work. He would work hard, watch a bit of television and sometimes go to watch Preston play in the premier league. He would spend between an hour and a half and two hours at the Mill Park Recreation Centre five or six days each week. He would rotate his activity between exercising in the pool, the spa and the sauna. He described the activity that he undertook at the Recreation Centre as making him feel more relaxed and providing him with more movement and less pain. He said he did not enjoy that part of his life but that it was a necessity for him. He described his days as varying, some days being not too bad and others being very bad.
(v) He paid himself for his attendances at the Recreation Centre, WorkCover had only paid for six months, and he continued to pay to attend the Centre because he needed it to improve his health.
(vi) He made use of Panadeine Forte and Voltaren to control his symptoms. These medications were prescribed for his finger but they were painkillers and he employed the medication to treat his shoulders “because it’s still pain”.
(vii) That any activity which he undertook increased the pain in his shoulder, that the pain varied and that his pool exercises in the warm water helped him to control his condition.
(viii) He woke three or four times a night and at times he had to hang his right arm down the side of his bed and that he was required to sleep on his stomach.
(ix) His right shoulder was worse than his left shoulder, in that he experienced more pain and restriction of movement in the right shoulder. He said there was not much difference between each of his shoulders.
(x) That in about the middle of 2008, he started to experience symptoms in his left shoulder.
“Q: Did that cause some differences to your work and how you work?---
A:Yes. I wasn’t able to perform my work as well as previously and I believe as a result of that I was terminated. I don’t think they were satisfied with my performance.”
(xi) He described the work he was undertaking in 2009 at the time at which he was terminated in the following terms:
“I was sitting at a machine. It was little pieces that had to be drilled holes in there, I would pick up the pieces with my left hand, using my left hand all the time putting them in and press buttons to operate the machine. I would put them in and press the buttons and they would drop in by themselves and a lot of the time I’ve been required to lift things with my left hand. … I would mainly use my left arm because some of the parts were heavy and I wasn’t able to use the right one.”
(sic)
6 In assessing this matter:
· Firstly, that the plaintiff returned to work after the development of his injury and continued to work undertaking activities which required him to favour his right shoulder to the detriment of his left shoulder, suggests that the plaintiff was both well motivated and keen to work; and
· Secondly, that the plaintiff suffered what has been assessed as a serious injury involving his right index finger when he returned to alternate duties in late 2005, and that he continued to undertake those duties until he was made redundant in 2009
confirms, in my opinion, the plaintiff’s evidence that his ability to work was of major importance to him and that he was prepared to endure discomfort and injury in order to preserve his work.
7 As to whether the plaintiff’s symptoms stem from the presence of an organic condition, I note:
(i) The plaintiff’s general practitioner, Dr G Lamba, describes the plaintiff as presenting with tendinopathy in the right shoulder;[1]
[1]Report dated 30 August 2011
(ii) Mr Brendan Dooley diagnosed the plaintiff as presenting with an injury to his shoulder joint secondary to his injury of 23 September 2004;[2]
[2]Report dated 27 October 2009
(iii) Mr Peter Mangos described the plaintiff as presenting with bilateral shoulder tendonitis with calcification on the right side with associated bursitis;[3]
[3]Report dated 27 August 2011
(iv) Mr Kenneth Brearley diagnosed the plaintiff as suffering from an injury to the rotator cuff of the right shoulder with the development of tendinopathy and chronic subacromial bursitis;[4]
[4]Report dated 21 September 2011
(v) Dr Charles Castle diagnosed the plaintiff as presenting with a right rotator cuff syndrome with a supraspinatus tear;[5]
[5]Report dated 3 April 2012
(vi) Mr Kevin King diagnosed the plaintiff as presenting with damage to the rotator cuff, tendons and ligaments around the right shoulder which has resulted in a chronic long-term, moderately severe rotator cuff lesion of the right shoulder;[6]
and that none of the above medical practitioners have suggested that the plaintiff’s presentation and symptoms were not primarily explained by the organic injury with which the plaintiff presents in his right shoulder.
[6]Report dated 8 May 2012
8 In a report dated 25 November 2005, Mr John Owen opined that the plaintiff presented with rotator cuff tendonitis, both clinically and on ultrasound, and required treatment by a steroid injection into the subacromial space.
9 In a brief report dated 25 August 2005, Mr Owen opined that the plaintiff presented with a chronic pain state in his upper extremity and required referral for rehabilitation and pain management. Given the absence of any explanation by Mr Owen as to why he came to this position, I find Mr Owen’s opinion difficult to interpret and it does not dissuade me from accepting the opinions to which I have referred above.
10 Whilst Mr Rodney Simm and Dr Tim Hwang express opinions that the plaintiff’s presentation is functional, I do not find their opinions persuasive given the large body of medical opinion which expresses contrary views for the following reasons:
(i) Firstly, the description by Mr Simm as to the inconsistency which was present in the plaintiff’s presentation was generally inconsistent with the plaintiff’s presentation to the other medical examiners who have assessed him with the exception of Dr Hwang;
(ii) Secondly, in his report of 15 October 2012, Mr Simm made the point that one of the most consistent symptoms of subacromial impingement syndrome was the presence of nocturnal symptoms and that the plaintiff did not present with those symptoms. The fact that Mr Simm, in the course of his examination of the plaintiff on 23 January 2013 obtained from the plaintiff a history as to the presence of the nocturnal symptoms which Mr Simm subsequently failed to take into account when expressing his opinion, not only tends to add support for the presence of subacromial impingement syndrome in the plaintiff’s right shoulder but also diminishes the persuasiveness of Mr Simm’s opinion;
(iii) The fact that Dr Hwang opined that the plaintiff presented with no organic symptoms of any consequence, both in his right shoulder or in his right index finger, notwithstanding the undisputed fact that the impairment of function in the plaintiff’s right index finger gives rise to a serious injury within the meaning of the Act, in my opinion seriously calls into question the reliability of the statement made by Dr Hwang which is relied upon by the defendants as to the issue in question.
11 I find the attitude and behaviour of the plaintiff to be, on face value, inconsistent with the presentation of someone who presents with a severe functional condition or for that matter someone who would deliberately exaggerate the extent of his symptoms. It was my impression of the plaintiff as he gave evidence that he was doing his best to describe accurately the history and effect of his right shoulder injury upon his life and lifestyle without embellishment or histrionics.
12 Further, that the plaintiff:
(i) readily conceded that his strict exercise regime was beneficial in helping him to manage his symptoms the cost of which he met himself;
(ii) described his symptoms as varying depending on the activity he undertook;
(iii) had adopted a strict exercise regime.
in my opinion tells against the presence of a functional condition.
13 In these circumstances I find the medical opinion that the plaintiff presents with largely functional symptoms to be unpersuasive. Further, I completely reject the opinion expressed by Dr Hwang that the plaintiff presented with a lack of motivation,[7] and find this statement by Dr Hwang to further undermine the persuasiveness of his opinion generally.
[7]Defendants’ Court Book (“DCB”) 7
14 The evidence satisfies me that the plaintiff’s condition has now stabilized.
15 Given:
(i) The evidence by the plaintiff as to the onset of the symptoms in his left arm when considered in the context of the opinion expressed by Mr King[8] as to the causal relationship between the conditions present in the plaintiff’s right and left shoulders; and
[8]Plaintiff’s Court Book ( PCB) 124
(ii) the paucity of medical opinion which expresses a contrary position to that expressed by Mr King as to this issue;
I am satisfied that the symptoms which the plaintiff experiences in his left shoulder arose directly as a consequence of the injury to the plaintiff’s right shoulder and his tendency to favour his left shoulder in order to protect his right shoulder.
16 In these circumstances, I am satisfied that in assessing the consequences of the impairment in the function of the plaintiff’s right shoulder, I should regard the pain and impairment of function which is present in the plaintiff’s left shoulder as being a consequence of the right shoulder impairment.
17 I am satisfied that the combination of the pain which the plaintiff has described as being present in his left and right shoulders, and the effect of his symptoms upon his life as described by the plaintiff in his affidavit and in the course of his evidence which includes:
(i) An interference in his ability
· to work;
· to sleep;
· to engage in the activities of daily life which require strength of unrestricted movement of the arms and shoulders;
(ii) The requirement to engage in the rigorous exercise programme in which he is involved;
(iii) His exposure to symptoms of pain and discomfort, the severity of which is indicated by the action taken by the plaintiff to manage those symptoms which involves the exercise programme described by him and the use of pain killing medication;
are such as to constitute consequences which are appropriately described as being “more than significant or marked” and “at least very considerable”.
18 Even if the position which I have taken as set out in paragraph 12 of my reasons is misconceived, the medical opinions of Dr Charles Castle, Mr Kenneth Brearley and Mr Kevin King, each of whom have described the plaintiff as suffering from pain, stiffness and restriction of movement in his right shoulder such as to incapacitate him from repetitive movement or forceful activity of the shoulder on a permanent basis, when combined with the plaintiff’s evidence that −
(i) he is right handed; and
(ii) the symptoms in his right shoulder are more significant than those in his left shoulder
satisfies me that it is probable that, even in the absence of the presence of symptoms in his left shoulder, the plaintiff would be suffering from symptoms in his right shoulder which would:
·cause pain and restriction of movement in his right shoulder and, accordingly, significantly restricts the use he can make of his dominant right arm;
·preclude him from undertaking unrestricted work;
·require him to undergo the regular exercise sessions to which he has referred in his evidence;
·interfere significantly in his ability to sleep;
·restrict him in his ability to undertake any household activities or garden maintenance requiring the use of both his shoulders and arms;
and that the combined effect of these pain and suffering consequences are sufficient, in my opinion, to be described as “serious” within the meaning of that term employed by the Act.
19 For these reasons, I am satisfied that the plaintiff has established he is entitled to the leave which he seeks in this application.
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