Nelson v National Foods Ltd
[2012] VCC 147
•28 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-11-01544
| SIMONE JEAN NELSON | Plaintiff |
| v | |
| NATIONAL FOODS LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 6 and 7 March 2012 | |
DATE OF JUDGMENT: | 28 March 2012 | |
CASE MAY BE CITED AS: | Nelson v National Foods Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 147 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – pain and suffering consequences of shoulder injury – whether the pain and suffering consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are fairly described as being more than significant or marked and as being at least very considerable.
LEGISLATION CITED – Accident Compensation Act 1985, s. 134AB(19)(a).
CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33.
JUDGMENT – Leave to the plaintiff to issue proceedings to recover pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Maddens Lawyers |
| For the Defendant | Mr P Elliott SC with Mr J Batten | Lander & Rogers |
HIS HONOUR:
1 Simone Nelson alleges that she suffered an injury to her right shoulder on or about 5 July 2006. She seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 Her right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by her is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in sub-s.134AB(37) of the Act, insofar as is relevant to this application, as a “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of her right shoulder.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”. [2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Ms Nelson of any impairment or loss of the function of her right shoulder with respect of pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function. [3]
[3]Section 134AB(38)(b)
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application, unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c)
8 The application relates solely to the pain and suffering consequences of Ms Nelson’s injury.
9 Counsel for Ms Nelson submits that the consequences of her shoulder injury can fairly be described as more than significant or marked as at least very considerable. Counsel for the defendant denies that this is so. It is this issue that is to be determined.
Background
10 Ms Nelson is 47 years old. She was educated up to Year 11 level. Following her schooling, she worked as a shop assistant for some time, attended an agricultural college where she completed a horse management course, worked for her father as a truck driver for some three years (including interstate haulage), worked at a horse stud, and worked with a garden supply business reaching the position of yard foreman. She married in 1989, taking some five years off work while she raised a family. She later worked in a fish and chip shop and drove a garbage truck.
11 In 2004, she commenced working for the defendant at its King Island cheese factory at Timboon. She rose to the position of team leader. She was engaged in some administrative duties and also quality control duties. As a team leader, she was in charge of about 16 persons. Whilst so employed she completed additional qualifications including a Certificate IV in Laboratory Skills, and Certificates III and IV in Business Administration. Some of those skills she is still able to use today.
12 Whilst working with the defendant, she often worked overtime hours and often worked on Saturdays. Her work was physically demanding and involved a good deal of heavy lifting, bending and working from awkward positions.
13 Counsel for Ms Nelson submitted that her work record was impressive and showed her to be hardworking and well motivated. I agree.
14 On 5 July 2006, she alleges that she injured her right shoulder when turning a brine rack with a fellow worker. The fellow worker lost her grip on her end of the rack, causing the rack to fall. Ms Nelson took the weight thereof and hit a drain table, jarring her right shoulder.
Aftermath of Injury
15 Following her injury, her supervisor recommended that she attend an osteopath. She did so, attending at fortnightly intervals thereafter for about a year. She was treated with massage and a heat machine. This did not result in any lasting improvement.
16 In February 2007, she attended Dr Rouse, at the Timboon Clinic, who arranged for an ultrasound and an x-ray of the shoulder. She was prescribed painkilling and anti-inflammatory medication.
17 She was referred to Dr Hugh Seward, who arranged for her to be treated with two cortico-steroid injections into the shoulder joint. Again, these provided no lasting improvement.
18 In June 2008, she was referred to a Sports Medical Clinic at Geelong. An MRI scan of her right shoulder was performed at about that time and soon after she was referred to Mr Richard Page, orthopaedic surgeon.
19 Mr Page carried out two surgical procedures - in August 2008 and in January 2010. In between, Ms Nelson returned to work on modified duties with the defendant.
20 In May 2009, the defendant’s King Island cheese factory was closed down and her employment was terminated.
21 On the same date, Ms Nelson underwent a hydrodilitation procedure.
22 Following the second surgical procedure, her shoulder was placed in a sling for approximately six weeks. She underwent weekly and then fortnightly treatments of physiotherapy. She had a follow up review with Mr Page reasonably soon afterwards and from that time on has been under the care of her general practitioner, Dr Reid.
23 Ms Nelson deposes that the second surgical procedure did provide some improvement in the range of movement she had in her shoulder and also improved the severity of her pain. However, she continued to suffer from restricted movement, particularly with movements associated with lifting her arm to the side and behind her back. She deposes that she continues to suffer from pain in her shoulder which requires her to take analgesic medication in the form of Nurofen Plus and Panadeine Forte. Her shoulder pain is aggravated by sneezing and by cold weather. If she bumps it, it is very painful.
24 At nights, she has significant pain in the shoulder and often wakes two or three times a night with shoulder pain. On those occasions, she sometimes takes additional analgesia. Often she would sit in the spa at her home and direct the jet onto the painful spot in her shoulder. She also uses a heated wheat bag to relieve pain.
25 In between the two surgical procedures and following the termination of her employment in mid 2009, Ms Nelson looked for work and registered with an employment agency who found her limited, short term, part time employment on three or four occasions.
26 Later in 2009, Ms Nelson set up a home cleaning business. She registered a business name and advertised locally. In the early days of the business, she had a handful of clients, probably numbering four or five. She and her daughter performed the work. Her evidence was that she did not perform any of the heavier activities or those involving too much use of her right arm and shoulder.
27 She did not work at all for about three months following her second surgery in January 2010.
28 In July 2010, she obtained full time employment with an insurance agency in Camperdown, where she continues to work. She performs administrative and receptionist duties and copes with them. She uses a computer to prepare invoices, quotes and the like. She enters data onto the computer.
29 From July 2010, she has continued to operate the cleaning business but employs others to actually do the cleaning work. She has performed no physical cleaning, save for three or four isolated occasions. The turnover of the business has increased from approximately $14,000 for the year ended 30 June 2010, to approximately $53,000 for the year ended 30 June 2011. For the current financial year, Ms Nelson was hopeful that turnover would be approximately $60,000. Notwithstanding the increase in figures, the business has run at a loss in the two past financial years.
30 For a number of years, Ms Nelson has employed a home cleaner to clean her own home on the basis that shoulder pain prevented her from doing so. She conceded that she operated a home cleaning business whilst employing someone to clean her own home. She further conceded that on two separate occasions in 2011, she had travelled to Melbourne with her husband to assist her son to clean premises rented by him in order that he could recover his bond.
31 Ms Nelson had not made any reference to the cleaning business in either of her affidavits in support of her application sworn respectively in December 2010 and February 2012. She was cross-examined extensively about this omission and about her ability to clean for her son.
32 I do not consider that her largely non-physical involvement with her cleaning business, or the fact that she has from time to time assisted others in cleaning homes, is particularly significant in the context of her application. I note that both Mr Kierce and Mr O’Brien found considerable wasting of the shoulder musculature. This is her dominant arm. I consider that this is objective evidence that her shoulder movement is impaired and that she has a much reduced use of her right upper limb.
33 I accept that her involvement was such that she did not perform any heavy work of significance but was organising others on such occasions.
Diagnoses of Injury
34 The medical reports tendered were, in my view, largely non-contentious. Mr Page reported that the MRI scan of Ms Nelson’s shoulder showed a labral tear with a periosteal sleeve avulsion. At surgery, she was found to have a very tight shoulder when examined under anaesthetic, consistent with a dense capsulitis and chronic capsular thickening.[5] Mr Page described the injury as a Type 2 superior labral tear going into an anterior labral tear. This had initially been repaired with three anchors arthrosocopically.
[5]PCB 150
35 Ms Nelson was examined on a medico-legal basis by Mr Paul Kierce, orthopaedic surgeon, in August 2010 and November 2011 and by Mr John O’Brien, orthopaedic surgeon, in July 2011.
36 Mr Kierce described Ms Nelson’s injury as being an anterior subluxation of the right shoulder joint resulting in tearing of the anterior labrum which had been repaired, but with additional adhesive capsulitis post-operatively. In November 2011, he noted persistent wasting in the right suprascapular region and some wasting of the right deltoid.[6] She was tender over the anterior aspect of the rotator cuff as well as over the insertion of the right deltoid muscle into the upper right humerus laterally. He considered that an MRI scan taken in June 2008 showed early osteoarthritis of the right acromioclavicular joint. He considered that she was likely to have a permanent impairment due to the injury and that she had persistent restriction of movements in the shoulder. He considered that she would find activities of daily living plus coping with her work difficult, if she did not continue with anti-inflammatory and analgesic medication.[7] He did not think she would ever be fit to return to her pre-injury duties, which involved her in lifting activities and the use of her right arm above shoulder level.[8]
[6]PCB 108
[7]PCB 110
[8]PCB 112
37 In July 2011, Mr O’Brien also noted wasting over the muscles of the right shoulder girdle and quite marked tenderness over the interior, superior, lateral and posterior aspects of the shoulder. He considered that her surgery had been complicated by capsulitis of the glenohumeral articulation. He thought she had a marked restriction of all range of movements of the right shoulder, with increasing pain on undertaking active movements against resistance. Clinically, he thought this suggested the presence of post-operative capsulitis affecting the shoulder joint. His overall diagnosis was that she had suffered a labral tear as a result of her work incident, and that surgery had been complicated by adhesive capsulitis which was the source of her ongoing symptoms. He considered that her prognosis was poor and that she now had well established chronic shoulder pain associated with quite marked restriction of movement. He described a quite significant disability associated with painful restricted function of the right shoulder. He also thought there was no possibility she could return to employment of the type that she had previously undertaken. She could not undertake any manual type of work, as there was no possibility of her undertaking activities at or above shoulder level. He thought that she was capable of doing light office work, although noted her complaints that computer work aggravated her symptoms. He considered her condition was permanent and agreed that she needed home help to assist her.[9]
[9]PCB 76-79
Consequences of the Injury
38 In cross-examination, counsel for the defendant asked Ms Nelson a number of questions concerning her failure to include in either of her affidavits the fact that she had been operating a house cleaning business from 2009 and up to the present time. Her evidence was that she did not consider it relevant to refer to that business. Firstly, because she had not performed anything but the lightest physical tasks and had virtually performed no work herself in the business since mid-2010. Secondly, she was of the view that because the business operated at a loss and she did not earn any money from it, she was not required to refer to it.
39 I had some difficulty accepting her evidence on this point. Senior Counsel for the defendant submitted that I should not accept Ms Nelson as a truthful witness. However, notwithstanding my reluctance to accept her explanations, I do accept that she and her daughter operated the cleaning business together until about mid-2010, over which period the business was small with relatively few clients. I accept Ms Nelson’s evidence that she was unable to do the heavier aspects of cleaning and that these were done by her daughter. I accept that since mid-2010, she has played no physical role in the cleaning business other than on a handful of occasions when, again, she did not perform any heavy activities. I accept that her involvement in the business is an administrative one involving the provision of quotes, invoices and employment of staff.
40 I accept Ms Nelson’s evidence that the role played by her in the cleaning of her son’s rented premises on two occasions was minor, that she had performed only light work and had largely directed others including her son, his two friends and her husband.
41 I do not consider that the operation by her of a cleaning business is inconsistent with her not being able to physically clean her own home and having to engage a cleaner.
42 During the course of cross-examination, two DVD films were shown of the plaintiff depicting her on two days in mid-2011 and on two days in February 2012. I do not consider that either of the DVDs showed Ms Nelson using her right arm for any vigorous or strenuous activity or in performing activities which she had denied being able to perform. I do not consider that the films weakened her case.
43 I consider that the finding of wasting of her right shoulder musculature is objective evidence of her ongoing inability to use her right upper limb in a normal manner.
44 There is an abundance of medical opinion to the effect that Ms Nelson is not fit to return to the sort of manual work that she was doing at the time of her injury. She is, however, capable of holding down an administrative or clerical position, albeit with some difficulty when performing computer work.
45 She is a person who has performed a wide range of jobs since leaving school, many of them of a manual nature or which at least involved vigorous use of her hands and arms. While she is presently employed on a full time basis by an insurance agent, that position, like any other, is not guaranteed to continue until her retirement. If for any reason she were to lose that job, the range of employment possibilities open to her would be significantly reduced compared with those that would have been open, but for her shoulder injury. As a consequence of the injury, her choice of employment is restricted. She is now only capable of doing clerical or administrative work, whereas before she had the full range of employment positions open for her, restricted only by her level of education and qualifications. I consider that the restriction in employment opportunities for her is of significance.
46 Ms Nelson gave evidence concerning a number of consequences of her injury. I accept the following:
(a)She suffers pain in her shoulder all the time. Even when she is not actively moving, her shoulder is painful. She takes Nurofen Plus and Panadeine Forte (a strong prescription analgesic) to assist her.
(b)If she is active - by way of an example, when she recently helped her husband in the garden – she was required by reason of pain to take four Panadeine Forte tablets that night. This was despite the fact that, in her view, she had not undertaken any particularly strenuous work and had tried to look after herself.
(c)She has difficulty driving a motor vehicle for any length of time. If she is not able to move her right arm and shoulder, she experiences problems. She describes a state where her right hand falls off the steering wheel. She is able to drive relatively short distances, such as from her home at Cobden to Camperdown (about 11 kilometres) and is also able to drive from Cobden to Warrnambool (about 60 kilometres). However, a trip to Melbourne she could not do due to pain. Driving had never previously been a problem for her. Whilst employed as a truck driver earlier, she would regularly drive interstate transports over long distances.
(d)She wakes every night with shoulder pain.
(e)She has difficulty reaching round behind her back with her right hand.
(f)She is able to reach upwards and forwards, but not upwards to the side. She demonstrated her restriction as being anything beyond the horizontal. She has difficulty performing relatively simple activities such as reaching with her right hand behind her back to hitch up her slacks.
(g)At the time of the injury, she was playing with a mixed netball team with friends, including her daughter, and had been doing so for a couple of years before. She enjoyed the social contact and particularly enjoyed being able to play with her daughter. She had played netball regularly when she was much younger. As a consequence of her shoulder injury she has had to give up netball entirely.
(h)She is quite limited in her gardening and outdoor activities. She is able to do some pruning and planting and is able to help her husband to a degree.
(i)She has difficulties performing normal household tasks, especially in the kitchen, where she has difficulty reaching into the higher cupboards and with normal household activities such as cleaning, mopping and vacuuming. She hired a housekeeper once a week some years ago and still employs such a person.
(j)She deposed that her present employer is very supportive and she is able to alternate computer work with other work. By the end of the working day, she is in considerable pain.
(k)Sitting for lengthy periods is difficult for her. For instance, if she attends the cinema, she is unable to sit throughout a film without leaving and moving her shoulder for a time.
(l)She has difficulty showering and especially raising her right arm during showering or when drying herself or combing her hair. She is unable to do up her bra from behind.
(m)She has ridden horses since she was a little child. At the time of her injury, she owned a horse which she kept at her home. She sold the horse at the end of 2006 and has not ridden since, as a consequence of her injury. Prior to her injury, she was regularly involved with her horse and performed all relevant activities including handling, grooming, feeding, and drenching in addition to riding.
(n)She deposed that she loved her job with the defendant. She had been involved in additional activities at work such as being a member of the safety committee, a member of the management committee, she was the fire warden and a member of the supervisors’ committee. None of this was challenged by the defendant. I accept that she is likely to have been an enthusiastic employee and one who thoroughly enjoyed her job. It is correct that the particular job she had with the defendant would not have been available after 2009 as a consequence of the closure of the factory. However, in the light Ms Nelson’s work history, I consider it likely that she would have continued in employment in a similar type of work.
47 Looking at all of the circumstances of the case, I am satisfied that the pain and suffering consequences of Ms Nelson’s shoulder injury are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
Conclusion
48 For the reasons expressed above, I am satisfied that Ms Nelson has suffered a serious injury as defined.
49 Accordingly, there will be leave for her pursuant to s.134AB(16)(b) to commence proceedings for recovery of pain and suffering damages in respect of injuries suffered by her in the course of her employment with the defendant on or about 5 July 2006.
50 I shall hear the parties in respect of costs.
- - -
0