Miranda v P and a Miranda Pty Ltd and Victorian WorkCover Authority
[2017] VCC 649
•26 May 2017 (Revised on 20 June 2017)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02802
| PEDRO MIRANDA | Plaintiff |
| v | |
| P & A MIRANDA PTY LTD | First Defendant |
| AND | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2017 | |
DATE OF JUDGMENT: | 26 May 2017 (Revised on 20 June 2017) | |
CASE MAY BE CITED AS: | Miranda v P & A Miranda Pty Ltd and Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 649 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left shoulder – pain and suffering – loss of enjoyment of life – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Slater & Gordon |
| For the Defendant | Mr D Myers | IDP Lawyers |
HER HONOUR:
Preliminary
1 Mr Miranda is a 68 year old man who suffered an injury to his left shoulder, whilst delivering a large, heavy drum, during the course of his employment with the defendant on 10 April 2012. The defendant accepts that he suffered this injury at work, but disputes that his injury is serious.
2 Mr Miranda claims that as a consequence of this incident, the functioning of his left, non-dominant arm has been impaired. Mr Miranda claims to have suffered serious consequences as a result of this injury, in respect of his pain and suffering. In order for Mr Miranda to be entitled to claim common law damages for his injuries, the impairment to his left shoulder must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
3 Only Mr Miranda was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
4 For reasons I will explain below, I am satisfied that the consequences to Mr Miranda, from his left shoulder injury, can be described as at least ‘very considerable’.
Relevant background
5 Mr Miranda is married and lives with his wife. He was born in Portugal and completed school to the equivalent of Year 12. He then worked as a ceramic artist and painter for a number of years. From 1966 to 1970, Mr Miranda worked for the Portuguese Navy, before then returning to work as an art gallery manager.
6 In 1978, Mr Miranda migrated to Australia. Initially, he worked for 10 years with The Herald & Weekly Times and later established his own business. For a period he operated a cake shop, and later a takeaway food shop, before commencing work as a sub-contractor, undertaking delivery work.
7 In January 2012, Mr Miranda was employed as a sub-contractor with the On-time Group, working approximately 38 hours per week. As part of his role, Mr Miranda was required to attend the Volvo premises in Dandenong South, and to then deliver its products to various locations around Melbourne.
8 Prior to suffering his injury the subject of this claim, Mr Miranda enjoyed gardening and fishing. He said that he was a very active person and had no retirement plans.
The injury and its consequences to Mr Miranda
9 On 10 April 2012, Mr Miranda was delivering a large, heavy 205 litre drum of liquid to a farm in Cardinia. Whilst removing the drum from his van, he experienced lower back, neck and left shoulder pain.
10 Mr Miranda said he continued to work after the incident, despite his ongoing pain. On 26 April 2012, Mr Miranda attended his general practitioner, Dr Julia Hoegerl. The clinical note recorded that Mr Miranda had injured his lower back in an incident at work on 10 April 2012, but made no reference to any complaint of left shoulder pain. It was noted that he should avoid lifting. In cross-examination, Mr Miranda said that he had “always” suffered lower back, neck and shoulder pain since the accident.
11 Mr Miranda consulted Dr Hoegerl on two occasions in June 2012. On 5 June, he complained of pain in his lower back, together with pain in his left shoulder, and a reduction in his range of motion.
12 On 19 June, Dr Hoegerl recorded ongoing complaints of left shoulder pain, noting that such pain had commenced at the same time Mr Miranda had suffered his injury in April 2012. Dr Hoegerl prescribed Mobic medication and recommended that Mr Miranda avoid lifting heavy objects.
13 Throughout this period, Mr Miranda also received physiotherapy treatment from Ms Michelle Raymundo, in relation to his shoulder, mid and lower back pain. After two sessions, Ms Raymundo noted that Mr Miranda was feeling “70 per cent better”. Mr Miranda was cross-examined as to Ms Raymundo’s report, and whilst he could not recall any specific percentage improvement he felt at the time, he did say the physiotherapy treatment helped “a lot”.
14 Mr Miranda also received myotherapy treatment at this time.
15 In January 2013, On-time’s delivery contract with Volvo was terminated, and for a short period, Mr Miranda was given alternative work duties delivering products for Toyota in Brighton. However, as there was only limited work available consistent with his weight restrictions, Mr Miranda ceased work and submitted a WorkCover claim.
16 In April 2013, Mr Miranda was referred to orthopaedic surgeon, Mr Nigel Broughton. Mr Broughton arranged for an MRI scan to be taken of Mr Miranda’s left shoulder. The MRI scan, taken on 29 April 2013, demonstrated AC arthropathy, with minor supraspinatus tendinopathy.
17 On 27 May 2013, Mr Broughton noted that Mr Miranda had improved considerably with myotherapy treatment, and recommended that if his pain persisted, Mr Miranda should receive an ultrasound-directed local anaesthetic and steroid injection in the subacromial space. At that time, Mr Broughton did not consider Mr Miranda to have any “serious problems in the shoulder”.
18 Mr Miranda was adamant that he did not wish to have a cortisone injection, as he was fearful of the associated pain, and understood that it would only ever provide him with temporary relief.
19 On several occasions from November 2012 until June 2014, Mr Miranda was prescribed Mobic, Panadol Osteo and Panadeine Forte. Dr Hoegerl ceased prescribing Panadeine Forte and Panadol Osteo on 30 June 2014. Since that time, Mr Miranda said he has bought Panadol Osteo over the counter from his pharmacist, and that he continues to take approximately three tablets, almost every day. He also said that he applies deep heat and balsam oil into his left shoulder on a regular basis to help ease the pain.
20 In December 2016, Dr Hoegerl arranged for Mr Miranda to undergo a further MRI scan of his left shoulder, due to persistent pain. The MRI scan, taken on 2 December 2016, demonstrated moderate arthropathy in the AC joint, with features that were very similar to the previous MRI scan of April 2013. It was noted that there were mild degenerative features at the glenohumeral joint. The radiologist recommended that Mr Miranda consider undergoing an ultrasound-guided steroid injection in the AC joint.
21 Mr Miranda said that Dr Hoegerl remains his general practitioner, but that, as he understands it, she can do little for his left shoulder.
22 Mr Miranda said he has received acupuncture treatment into his left shoulder, every two or three months, which gives him some benefit.
23 Mr Miranda said that he continues to receive physiotherapy treatment to his left shoulder, neck and lower back, every two to three weeks. Such treatment involves strapping his neck and shoulder, which he said helps with his shoulder pain.
24 Mr Miranda said that his left shoulder injury interferes with his sleep, and that if he rolls onto his left shoulder, he will wake in pain. Mr Miranda estimated that his left shoulder pain would cause him to wake, on average, up to four or five nights a week.
25 Mr Miranda said that his left shoulder pain is constant, and that it increases if he uses his left arm too much. He said that his left arm injury affects his everyday activities, such as dressing and undertaking household duties. Mr Miranda said that he has now moved to a smaller house, and that whilst he is able to mow his small lawn, it causes him increased left shoulder pain. He otherwise has help from his wife in the garden.
26 Mr Miranda said that as a consequence of his left shoulder injury, he has given up fishing, which is something he previously loved doing, and that he sold his boat. In cross-examination, however, Mr Miranda conceded that he had not used his boat for several years prior to the work incident, as he preferred to go surf fishing along the Ninety Mile Beach. He said that he has not fished at all since suffering his left shoulder injury, as he believes the injury would prevent him casting a fishing line 100 metres out into the sea. Mr Miranda said that not being able to fish is a “real loss” to him.
27 Although Mr Miranda is able to drive his car, he suffers a flare-up of left shoulder pain if he holds the steering wheel for too long.
28 Mr Miranda also said that he has two young grandchildren, and that he is now limited in his ability to play and interact with them.
29 Mr Miranda has travelled to Portugal on three occasions since the accident to visit his family. I accept that whilst overseas, he was limited in what he could do, and that he remained in constant pain for which he required painkilling medications.
What is the nature of Mr Miranda’s left shoulder injury?
30 Dr Hoegerl diagnosed Mr Miranda as suffering chronic pain due to supraspinatus tendinopathy, attributable to the work incident in April 2012.[1] Dr Hoegerl also considered that Mr Miranda’s neck pain was a radiation pain from his shoulder injury, and was of the opinion he would benefit from ongoing physiotherapy and myotherapy treatment. She noted that Mr Miranda can no longer drive long distances in the car, that he cannot now mow his lawns, and that his sleep pattern has been affected.
[1]Dr Hoegerl’s report states that the work incident occurred on 10 March 2012 and Mr Miranda’s first attendance on her was 26 March 2012. The parties agreed that Dr Hoegerl was in error with such dates and that the clinical records demonstrated that Mr Miranda had first attended her on 26 April 2012 and he reported that the work incident had occurred on 10 April 2012.
31 Mr Broughton arranged for an MRI scan to be taken in April 2013. Upon review, Mr Broughton considered the scan demonstrated that Mr Miranda had suffered a minor supraspinatus tendinopathy. Mr Miranda has not returned to Mr Broughton for review, nor has he consulted any other orthopaedic surgeon.
32 Mr Miranda’s solicitors arranged for him to be examined by orthopaedic surgeon, Associate Professor Bruce Love, who has provided two medical reports in this matter. In his first report dated 26 February 2016, Associate Professor Love stated that in his opinion, Mr Miranda suffers a degree of rotator cuff tendinopathy in his left shoulder, which he attributed to the lifting incident at work. He considered Mr Miranda’s long term prognosis to be poor, and was of the opinion that he was likely to remain permanently disabled. Associate Professor Love also stated that, whilst a steroid injection had been recommended, Mr Miranda “was not enthusiastic” about such treatment.
33 In his subsequent report dated 8 February 2017, Associate Professor Love examined Mr Miranda and reviewed the recent MRI scan, noting that it did not demonstrate any changes of either a degenerative or inflammatory type. Although Mr Miranda did not suffer a tear to the rotator cuff, Associate Professor Love accepted that he had suffered an injury to the rotator cuff. His diagnosis was based principally on Mr Miranda’s pattern of pain and the physical findings. Associate Professor Love acknowledged that the evidence from the MRI examination was not strong, but noted that the absence of any major changes on the scan is not determinative of whether or not Mr Miranda suffers an organic injury in his left shoulder. Once again, Associate Professor Love recommended that a cortisone injection would be an appropriate form of treatment.
34 The defendant’s solicitors arranged for Mr Miranda to be examined by orthopaedic surgeon, Mr Peter Battlay, in April 2013 and February 2016. In his first report dated 29 April 2013, Mr Battlay considered that Mr Miranda was suffering ongoing symptoms in his left shoulder and left side of the neck. However, after subsequently considering the MRI scan of April 2013, Mr Battlay was of the opinion there was no evidence of a rotator cuff tear, and instead suggested gross AC arthropathy. Mr Battlay considered this to be a degenerative condition, and thought that whilst it may have been temporarily aggravated by the work incident, he considered Mr Miranda’s current problems to be a result of his longstanding degenerative condition.
35 Mr Battlay re-examined Mr Miranda in February 2016. In his report dated 3 February 2016, Mr Battlay noted that on formal examination, he had a limited range of motion, in contrast to the fuller range of motion when getting dressed and undressed. Mr Battlay considered these findings to be inconsistent. In such circumstances, Mr Battlay considered there was a degree of functional overlay which made it impossible for him to estimate the true functional capacity of Mr Miranda’s left shoulder. He again repeated his earlier opinion, that he considered there to have been a temporary aggravation at work, the effects of which have since ceased.
36 I am satisfied that Mr Miranda did not suffer any left shoulder pain prior to the work incident, but that he has continued to experience such pain since that time. Mr Battlay offered no explanation as to how Mr Miranda’s employment ceased to be a cause of the injury. He referred to Mr Miranda suffering a temporary aggravation, however, this is inconsistent with Mr Miranda’s own evidence that the pain has never ceased since the incident.
37 The defendant’s solicitors also arranged for Mr Miranda to be examined by orthopaedic surgeon, Mr Timothy Gale, in September 2014. In his report dated 16 September 2014, Mr Gale was also of the opinion there were some features of inappropriate illness behaviour, in that at times, Mr Miranda held his left arm against the side of his chest, whereas at other times, he demonstrated free, spontaneous use. Mr Gale diagnosed Mr Miranda as suffering a soft tissue injury in the vicinity of his left shoulder, without any major tendon injury. He considered there was likely to be a secondary chronic pain state.
Mr Miranda’s reliability as a witness
38 I considered Mr Miranda to be a creditworthy and reliable witness. He gave evidence in a simple, straightforward and believable manner, and I do not consider that he attempted to exaggerate his level of pain. He volunteered that he had not used his boat for several years prior to the accident, as he had preferred surf fishing. Further, when asked about physiotherapy treatment, he volunteered that his physiotherapist also works on his neck and lower back.
39 In assessing his claim, I have no hesitation in accepting his evidence in its entirety.
Can the consequences to Mr Miranda be described as at least very significant?
40 To succeed in his case, Mr Miranda must satisfy me, on the balance of probabilities, that the impairment he claims to suffer to his left shoulder is serious and permanent, and that such impairment was caused by the work incident. The test is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment. In considering whether or not Mr Miranda’s left shoulder impairment is “serious”, the consequences must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.
41 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon[2], Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, regard should be had as to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of pain.
[2]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
42 As previously stated, I consider Mr Miranda to be creditworthy and reliable, and I have no hesitation in accepting his evidence. His credibility bears significantly on my assessment of his evidence in relation to his subjective pain experience.
43 Having considered Mr Miranda’s evidence, as well as the medical evidence, I am satisfied that Mr Miranda suffers the following consequences:
· He takes painkilling medication on an almost daily basis. Although such medication has not been prescribed for him, I accept that he purchases it from the pharmacist, and uses it to provide him with some pain relief. As has been recognised by the Court of Appeal in previous cases:
“…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence;’[3]
[3]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
· His pain persists despite having received physiotherapy and acupuncture treatment on a regular basis. I accept that Mr Miranda does not want to receive a cortisone injection, as he understands it would offer only temporary relief, and is worried about the pain associated with the injection itself. In such circumstances, I do not consider it unreasonable for him to refuse this injection;
·He experiences inferences to his sleep most nights of the week;
·He is limited in the household and gardening duties that he can perform;
·He no longer goes fishing as a consequence of his left shoulder injury. He had stopped using his boat prior to suffering the injury, but his shoulder injury prevents him from surf fishing;
·His ability to play with his grandchildren has been affected;
·When he has travelled to Portugal, he has been restricted by his ongoing left shoulder pain.
44 Mr Miranda suffered his injury at age 63 and is now 68 years of age. As was noted by the Court of Appeal in Hawkins v DHL Express (Australia) Pty Ltd :
“…Ultimately, the employer appeared to accept that the judge’s reasoning with respect to the worker’s advanced age was at odds with what ought to have been at the heart of her assessment, namely the pain and suffering consequences of his impairment. Her Honour ought not to have treated the worker’s advanced age as in itself supportive of the proposition that his injury was less than serious. This is so because it will depend on the circumstances of each individual case as to whether the age of a worker, and the ailments associated with age, exacerbate the impairment consequences experienced. I do not consider that the remarks made in Stijepic in a case concerning a young adult can be extrapolated to mean that the impairment consequences suffered by a worker of advanced age are, by reason of the worker’s age, likely to be less than serious. Nor should the remarks be read as supporting the existence of a presumption in this regard.”[4]
[4]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at [78].
45 Mr Miranda was in good health prior to suffering his left shoulder injury. He had planned to be active in his retirement, but that has been curtailed as a consequence of his left shoulder injury.
46 I consider that the pain and suffering consequences to Mr Miranda, as detailed above, when looked at for a 68 year old man, and when compared to other cases in the range of possible impairments or losses, are very considerable.
Conclusion
47 Mr Miranda has satisfied me that he suffers a serious injury to his left shoulder, as a consequence of the lifting incident in the course of his employment on 10 April 2012. I therefore grant him leave to commence a claim for pain and suffering damages.
48 I shall make the consequent orders.
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