Miller, Norman Stafford v Calvary Health Care Bethlehem; Limited and Anor
[2010] VCC 113
•5 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04609
| NORMAN STAFFORD MILLER | Plaintiff |
| v | |
| CALVARY HEALTH CARE BETHLEHEM LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 February 2010 |
| DATE OF JUDGMENT: | 5 March 2010 |
| CASE MAY BE CITED AS: | Miller, Norman Stafford v Calvary Health Care Bethlehem Limited & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0113 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the pain and suffering consequences of an injury to the right shoulder were at least very considerable – plaintiff in full-time employment – Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260: section 134AB (38)(c).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with | Ryan Carlisle Thomas |
| Mr S Wubbeling | ||
| For the Defendants | Mr R Meldrum QC with | Hall & Wilcox |
| Ms A Ryan | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr A Keogh SC appeared with Mr S Wubbeling of Counsel for the plaintiff, and Mr R Meldrum QC appeared with Ms A Ryan of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the dominant right shoulder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered his Court Book ("PCB"), pages 25-79: Exhibit A • The defendants tendered their Court Book ("DCB"), pages 1-27(d) and 31- 40: Exhibit 1 6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
(f)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[3] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
9 The plaintiff was born on 22 December 1948. He is a married man. He has adult children who are no longer dependent upon him.
10 The plaintiff was born in Ireland. He left school at fifteen years of age. He migrated to Australia in 1973. He completed his schooling in Australia, following which he qualified as a Division II nurse in 1979 at the Warrnambool Base Hospital.
11 The plaintiff commenced employment with the first defendant on 20 May 1996 as a Division II nurse.
12 On 16 September 2005, the plaintiff and another nurse were washing a patient while the patient was in a bed. In the process of doing so, the plaintiff took most of the patient's weight. The patient grabbed the rail of the bed with one hand and grabbed the plaintiff's right shoulder with the other hand, resulting in the plaintiff’s right shoulder being wrenched.
The Plaintiff's Medical Treatment
13 The plaintiff saw Dr De Leon-Andrada, general practitioner, in September 2005, some time after the incident occurred.
14 Dr De Leon-Andrada referred the plaintiff to have an ultrasound which was taken on 22 September 2005. It demonstrated a partial tear of the supraspinatus tendon.
15 Dr De Leon-Andrada referred the plaintiff to Mr Byrne, orthopaedic surgeon. The plaintiff first saw Mr Byrne 16 October 2005. Mr Byrne was aware of the results of the ultrasound.
16 The plaintiff was referred to have physiotherapy which failed to improve his pain and restriction of movement. He returned to see Mr Byrne on 10 December 2005.[4] On that occasion Mr Byrne gave the plaintiff a subacromial injection which gave the plaintiff excellent relief, but for only a few hours.
[4] Mr Byrne refers to it as 10 September 2005, which I assume to be a typographical error - at PCB 64
17 Mr Byrne referred the plaintiff to have an MRI scan on 20 December 2005. He reviewed him on 19 January 2006 and 14 November 2006. He subsequently referred him to have a repeat MRI scan which was taken on 23 November 2006. The plaintiff saw him again on 2 December 2006 and 27 December 2006.
18 Mr Byrne was of the opinion that the second MRI scan showed no progression of the tear of the right supraspinatus tendon. He was also of the opinion that there was persistent subacromial bursitis with subacromial spurring in the plaintiff’s right shoulder.
19 The plaintiff informed Mr Byrne, on 27 December 2006, that he was prepared to undergo surgery. At that stage the plaintiff had a painful arc, 90 degrees of abduction and was complaining of pain at night.
20 Mr Byrne operated on the plaintiff's right shoulder on 17 January 2007. He firstly used an arthroscope which demonstrated an anterior labral tear which was debrided. He then performed an open right subacromial decompression. He found a large anterior acromial spur which was excised, and an inflamed subacromial bursa which was removed.
21 Mr Byrne subsequently reviewed the plaintiff on 28 February 2007, 28 March 2007, 24 April 2007 and 24 May 2007. On the last occasion he advised the plaintiff to undergo a manipulation of his right shoulder under anaesthetic to break down post-operative adhesions and scarring. That procedure was carried out on 20 June 2007.
22 Mr Byrne subsequently reviewed the plaintiff on 4 July 2007, 31 July 2007 and 6 September 2007. Over the period of the post-operative reviews, it was apparent to Mr Byrne that the plaintiff's rate of recovery had stalled. He referred the plaintiff to have an ultrasound-guided injection into his right acromioclavicular joint under local anaesthetic. It apparently made no difference to the pain the plaintiff was experiencing at that time.
23 About the time when Mr Byrne last reviewed the plaintiff he had a discussion with the plaintiff whether further surgery in the form of an excision of his acromioclavicular joint would improve the pain the plaintiff was experiencing.
24 In his report dated 3 April 2009, Mr Byrne said that the plaintiff's long-term prognosis was unknown. He noted that the main problems experienced by the plaintiff were persistent aching in the right shoulder and restriction of internal rotation. He advised the plaintiff that he might develop recurrent pain in his right shoulder if he had to undertake repetitive heavy lifting. He otherwise said that it would be some eighteen months to two years after the surgery was performed before being able to determine what long-term restrictions the plaintiff would suffer.[5]
[5] PCBs 63-66
25 The plaintiff then returned to the care of Dr De Leon-Andrada, who has continued to treat him. In her report dated 4 June 2008, she painted a rather gloomy picture. She referred to attempts at surgery, cortisone injections and physiotherapy which had failed to alleviate the plaintiff’s right shoulder pain. She did not believe that the condition of the plaintiff’s right shoulder would improve, and that the constant aching pain experienced by the plaintiff would continue and would be aggravated by any physical strain to his right shoulder.
26 In her last report dated 6 January 2010,[6] Dr De Leon-Andrada referred to five entries from her clinical notes. In the entry dated 24 March 2009, she referred to prescribing the plaintiff OxyContin, 10 milligrams, which the plaintiff continued taking until some time before the last clinical note of 25 November 2009.
[6] PCB 60
27 The entry dated 19 May 2009 refers to the plaintiff using Tramal as well as OxyContin for pain relief, which he ceased using due to its side-effects. She also noted that the plaintiff was obtaining better pain relief using OxyContin.
28 The entry dated 27 August 2009 refers to the plaintiff suffering increasing pain as a result of working harder, and then she added:
"He’s battling to take two OxyContins during working days and 1 tab on
non-working days. He takes extra Tramal for breakthrough pain."
29 The last entry dated 25 November 2005 refers to the plaintiff having difficulty with concentrating while taking OxyContin, which he stopped taking, and instead took Tramal, 50 milligrams.
30 Mr Meldrum conducted a searching cross-examination of the plaintiff, part of which was directed to the medication the plaintiff is taking at present. The plaintiff said that he is now taking Tramal, 100 milligrams, which has recently been prescribed for him by Dr De Leon-Andrada. The plaintiff said that he has been prescribed that level of Tramal since he affirmed his second affidavit on 29 January 2010.
31 In her last report, Dr De Leon-Andrada referred to the fact that the plaintiff is able to work. She noted that the plaintiff was managing by living on daily painkillers.
The Other Medical Evidence
32 Both Mr Keogh and Mr Meldrum took me through the reports of the medical practitioners who conducted medico-legal examinations of the plaintiff. After reading the reports, again it occurred to me that there is very little controversy in the opinions expressed by those medical practitioners.
33 Mr Miller, orthopaedic surgeon, examined the plaintiff on 17 July 2007. He found deltoid muscle wasting, and restriction of movement of the right shoulder, leading him to conclude that there was irritability with movement and weakness of abduction and internal rotation.
34 Mr Miller was of the opinion that the plaintiff developed subacromial impingement syndrome and labral pathology; significant ongoing symptoms; clinical features suggestive of ongoing capsulitis and frozen shoulder, and had a prognosis which was only fair.[7] He did not believe the plaintiff was fit for normal nursing duties.
[7] PCB 70-73
35 Dr Horsley, occupational physician, examined the plaintiff on 6 August 2009. She found a reduction in the power in the plaintiff’s right hand of 16 kilograms exertion of force when compared with 36 kilograms exertion of force with the left-hand when using a jammer device. She found restriction of movement of the right shoulder.
36 Dr Horsley was of the opinion that the plaintiff had sustained an injury to his right shoulder which involved a tear of the labrum, and that he had also developed subacromial bursitis in the background of a pre-existing subacromial spur. She was of the opinion that extensive restrictions needed to be placed upon the plaintiff relevant to his use of his right upper limb, and that it would be difficult for him to work as a Division II nurse on a full-time basis in a ward environment.[8]
[8] PCB 77-79
37 Dr Baynes, occupational physician, examined the plaintiff for the defendants on 12 January 2006 and 10 September 2009. He did not find any muscle wasting, but he found restriction of movement in the right shoulder.
38 On the last occasion Dr Baynes examined the plaintiff he was of the opinion that the plaintiff was not fit for all of his pre-injury duties, but was fit to work as a Division II nurse where there was a ‘no lift’ policy and where ergonomic aids were provided to help him handle patients.[9]
[9] DCB 2-3 and 5-6
39 Dr Brown, occupational physician, examined the plaintiff for the defendants on 27 March 2007. He found a drooping of the right shoulder when compared with the left shoulder, and restriction of movement in the right shoulder.
40 Dr Brown was of the opinion that the plaintiff had a capacity to return to work, but not to his pre-injury duties. However, he considered that the plaintiff might be able to return to most of his pre-injury duties at some stage in the future. Dr Brown was not asked to re-examine the plaintiff.
41 Mr Polke, orthopaedic surgeon, examined the plaintiff for the defendants on 27 September 2007, 30 May 2008 and 8 September 2009. The findings on examination made by Mr Polke, and his ultimate conclusions, are by far the most supportive of the plaintiff.
42 For example, in his last report dated 22 September 2009, Mr Polke found rotator cuff wasting which he described as "2+", and restriction of movement in the right shoulder.
43 From the history obtained by Mr Polke from the plaintiff, and based upon his examination of him, he was of the opinion that the plaintiff was suffering from mild post-operative adhesive capsulitis and bicycle tendinitis of his right shoulder. He was of the opinion that the plaintiff had persistent pain and restriction of movement in his right shoulder due to an incomplete recovery from the injury. He did not believe that the plaintiff would improve significantly in the foreseeable future. However, he considered that he was capable of undertaking general nursing duties and recreational activities, although with some restriction and discomfort.[10]
[10] DCB 25-26
Serious Injury
44 Both Mr Keogh and Mr Meldrum submitted that the only issue that I was required to determine was whether the consequences to the plaintiff met the statutory test.
45 Inherent in the issue for determination being so confined is an acceptance by the defendants that the plaintiff suffered a compensable injury which has resulted in an impairment of the function of his right shoulder with some consequences.
46 Mr Meldrum’s searching cross-examination of the plaintiff unearthed some matters which he submitted should create some doubt about the veracity of the plaintiff. However, the matters on which that doubt was said to be created were rather more peripheral than central to the remaining issue I am to determine.
47 What is central to this application is the fact that the plaintiff suffered a dramatic injury to his right shoulder which was not amenable to conservative treatment. It required an episode of significant surgery, followed by a manipulation under general anaesthetic to treat a secondary consequence of the surgery, being the development of post-operative adhesions and scarring.
48 Mr Byrne was satisfied that the adhesions and scarring were significant, otherwise he would not have undertaken the manipulation under general anaesthetic. Mr Miller and Mr Polke were both of the opinion that the plaintiff continues to exhibit clinical signs of adhesive capsulitis. Furthermore, Mr Miller and Mr Polke found muscle wasting in the plaintiff’s right shoulder, and Dr Brown found a drooping of the right shoulder.
49 The foregoing serves to demonstrate that the plaintiff had significant pathology in his right shoulder requiring the treatment afforded him by Mr Byrne, and on the medico-legal assessments he has ongoing objective signs of abnormality in his right shoulder.
50 It is with this background that the veracity of the plaintiff’s evidence must be assessed.
51 I accept the plaintiff’s evidence that he has suffered persistent pain and limitation of movement in his right shoulder. He has not only required the treatment afforded him by Mr Byrne, but also conservative treatment which, at present, comprises the prescription of Tramal for pain relief.
52 There was some controversy as to whether the plaintiff is presently taking Tramal, 50 milligrams or 100 milligrams, but the debate centering around that controversy failed to observe that Dr De Leon-Andrada made some very telling observations in her clinical notes regarding the plaintiff's use of medication, and that the plaintiff went off that medication because of its side- effects.
53 It is clear enough to me that the plaintiff went off OxyContin for the reasons he advanced, namely, that he was concerned about becoming addicted to a morphine-based drug, and that he was suffering sweats, aches in the joints and feelings of discomfort.[11]
[11] Transcript 17
54 Mr Meldrum submitted that the consequences of the impairment of function of the plaintiff’s right shoulder could not meet the statutory test. He submitted that the plaintiff is still able to undertake photography and handyman work; that I should not accept that the plaintiff intended to return to tenpin bowling; that I should not accept that the plaintiff undertook repairs on his car before the incident occurred; that I should not accept that the plaintiff is unable to play the guitar, mandolin or bodhrán socially and in stage performances, and that the plaintiff's present work is inconsistent with him having any serious level of loss of function in his right shoulder.
55 Furthermore, Mr Meldrum submitted that the plaintiff intended to mislead me by suggesting that his capacity to engage in an intimate relationship with his wife was affected by the injury when he had suffered from a serious impotency problem before he suffered injury which was not amenable to treatment using Viagra.
56 Mr Meldrum referred me to the affidavit of Colleen Miller, the plaintiff's wife, who paints a very different picture of the plaintiff’s impotency problem and gives the impression that she and the plaintiff had a normal intimate relationship before the plaintiff suffered injury, and that following the injury it deteriorated.[12]
[12] PCB 38
57 I do not accept that the plaintiff set out to mislead me about his impotency problem. I reject the evidence of Colleen Miller altogether, and in any event, Mr Keogh only fleetingly referred me to her affidavit in his address, almost disavowing reliance upon it.
58 The plaintiff ceased working with the first defendant on 1 October 2006. He was unable to fully manage what he described as the wide and varied tasks required of a Division II nurse undertaking palliative care. No alternative duties were found for him by the first defendant.[13]
[13] PCB 28
59 The plaintiff commenced employment with South Eastern Private Hospital as a theatre technician on 22 July 2008. He found the manual activities required of him to be difficult. He was transferred to nursing duties on 11 November 2008.
60 He is now employed at the Box Hill Hospital as a nurse working with a nursing resources team.[14] He is having difficulty undertaking the tasks required of him at present. The work is generally lighter than what he did previously. He is presently looking for a nursing position closer to his home which has a greater emphasis on counselling rather than active nursing. His reasons for doing so are because he is finding the physical side of nursing is getting too much for him.[15]
[14] PCB 29 and 33-34
[15] Transcript 53-54
61 I think the characteristics of the consequences to the plaintiff are consistent with consequences which meet the statutory test.
62 I accept the plaintiff’s evidence that he has required significant medical treatment, and continues to require a significant dose of Tramal as a measure of control of the pain he experiences. It is less effective than OxyContin which he ceased using for the reasons referred to above.
63 I accept that the plaintiff experiences a constant level of discomfort and pain in his right shoulder. The movements of his right shoulder are obviously restricted by reason of the nature of the injury and the unfortunate onset of the secondary complication of adhesive capsulitis.[16]
[16] PCB 31 and 34-35
64 I accept that the plaintiff suffers interference with his capacity to drive; he cannot sleep for more than two hours at a time; he is not able to lie on his right shoulder comfortably; he is not able to engage in general activities which require the use of his right shoulder, nor activities which he planned to undertake in the future, namely, tenpin bowling and ballroom dancing,[17] and he cannot play musical instruments as effectively and extensively as he did previously.
[17] PCB 30-31 and 35-36
65 I do not accept the submission made by Mr Meldrum that the fact that the plaintiff is working militates against a finding that the consequences to him meet the statutory test.
66 In Dwyer v Calco Timbers Pty Ltd (No 2),[18] Nettle JA observed:
"Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury."[19]
[18] [2008] VSCA 260
[19] at paragraph 3
67 The same can be said for the plaintiff in this case. The plaintiff pursued employment options which were less physically onerous so that he could remain in employment. He has been successful in that respect. I do not accept, therefore, that he should be treated less favourably because he did not resign himself to his injury.
68 For the reasons set out above, I find that the plaintiff suffered an injury to his right shoulder which has permanently impaired the function of his right shoulder, and has consequences for him, in terms of pain and suffering, which are at least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Conclusion
69 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the first defendant.
70 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
- - -
0
3
0