Papaioannou v Nani Transport Pty Ltd
[2012] VCC 1887
•7 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01642
| James Papaioannou | Plaintiff |
| v | |
| Nani Transport Pty Ltd ACN 123 654 286 | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2012 | |
DATE OF JUDGMENT: | 7 December 2012 | |
CASE MAY BE CITED AS: | Papaioannou v Nani Transport Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1887 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – permanent impairment of the function of the left shoulder – pain and suffering only - causation - range
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan | Zaparas Lawyers |
| For the Defendant | Mr R H Stanley | Herbert Geer |
HER HONOUR:
1 As the case was run before me, the plaintiff seeks leave under section 134AB (16)(b) of the Accident Compensation Act 1985 to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the left shoulder sustained between late 2006 and mid-2007 during the course of his employment with the defendant as a truck driver.[1] The injury relied upon is the aggravation of pre-existing but only mildly symptomatic degenerative changes in the left shoulder. The impairment relied upon is a left shoulder impingement syndrome with tear of the rotator cuff (surgically repaired but complicated post-operatively with possible osteoarthritis and fracture of greater tuberosity and ongoing pain).
[1]The Worker’s Injury Claim Form dated 11 December 2009 states that the injury/condition occurred “throughout the course of employment” and was first noticed “from early 2007 and until November 2009”. See Defendant’s Court Book (DCB) p 57.
2 The defendant says that the plaintiff was self-employed (trading as Joni Transport) as a trucking contractor from 1998 until late 2006, at which time the business was sold to his wife, who then incorporated a business trading as Nani Transport Pty Ltd, the defendant. The plaintiff was employed by the defendant commencing on 2 April 2007. The plaintiff continued to drive the same truck, and carry out the same delivery duties for Nani Transport as he had in previous years when working for himself. The work was heavy repetitive work and part of the work involved lifting the eight gates off the truck each time a load needed to be loaded and unloaded. The plaintiff’s case is put as one of repetitive work over a number of years with gradual onset of symptoms. The compensation claim form identifies the onset of symptoms as occurring in May 2007. As at that time, the plaintiff had only been working for the defendant for some weeks. The defendant relies on the expert opinions of Mr Jones and Mr Flanc (mainly his second opinion). In the circumstances, the defendant says that the Court should not be satisfied that the work carried out for the defendant is a cause of the aggravation allegedly suffered in May 2007.
3 Secondly, the defendant says that the plaintiff has retained the capacity to work full-time, to drive and to carry out his daily activities including some cooking and cleaning. The plaintiff agreed that he earns more doing his night shift work for the bakery than when he was working for the defendant. In the circumstances, the defendant says that the pain and suffering consequences of the left shoulder impairment are not more than considerable when compared with other cases in the range of shoulder impairments.
The hearing
4 The plaintiff gave viva voce evidence. No other witnesses were called. The parties tendered court books. I have considered all the evidence relied upon by the parties. In the light of the way the matter was run before me, it is necessary to deal only briefly in these reasons with the medical evidence concerning diagnosis. I note that the plaintiff has also suffered from problems in the left elbow, in both wrists and in the right shoulder and that there is extensive discussion of these issues in the material before me. I have confined my attention to the evidence concerning the left shoulder.
5 For the reasons set out below I propose to grant leave in the terms sought by the plaintiff.
Causation
Plaintiff’s evidence
6 In his first affidavit, the plaintiff stated that in about the middle of 2007 he became aware of pain in both his shoulders and elbows, usually worse on his dominant left side.[2] He saw his longstanding general practitioner, Dr Pinto in July 2007 in relation to these complaints and had a left shoulder ultrasound on 7 August 2007. He was then referred to Mr Pullen, an orthopaedic surgeon who arranged for investigation and treatment of the elbows and right shoulder. Dr Pinto referred him to Dr Hwang, an occupational physician, in January 2010. He provided injections into both shoulders which gave the plaintiff short-term relief. Dr Pinto also referred the plaintiff to Mr Matthew Evans, orthopaedic surgeon, who saw the plaintiff in February and March 2010. Mr Evans arranged for x-rays and MRI of both shoulders and explained that surgery was available but that there was no guarantee of success.
[2]Plaintiff’s Court Book (PCB) p 9.
7 He continued to see Dr Pinto in 2011 and was referred to Dr Karlov in March 2011. Dr Karlov gave him about five injections into the left shoulder and then referred him to Mr Hunt, orthopaedic surgeon, in September 2011. Mr Hunt recommended surgery to the left shoulder. The surgery took place on 18 November 2011. The plaintiff was in hospital for three days and wore a sling for around eight weeks. He had regular physiotherapy and hydrotherapy for about three months.
8 The left shoulder surgery resulted in increased left shoulder pain and no increase in the range of movements. In May 2012 the plaintiff was referred for further x-rays and CT scan of the shoulder. According to Mr Hunt, they showed that surgical anchors holding tendons in position had caused damage to the bone in the shoulder. Mr Hunt recommended further surgery, but the plaintiff was reluctant to have any more surgery so soon given that the first surgery had been unsuccessful and had left him with increased left shoulder pain. He has not seen Mr Hunt since then.
9 At the hearing, the plaintiff agreed that he drove the same truck and carried out the same duties when working for the defendant between 2007 and 2009 as he had when he was self employed between 1998 and 2006. He did not recall having a problem with his left shoulder in 1993 or having x-rays at that time, but was adamant that while self-employed he only had left shoulder pain from time to time for which he took Panadol at the end of the day. He did not recall having any significant left shoulder pain in 2003 or telling Mr Pullen that this was the case. He insisted that when he saw Mr Pullen in August 2007 he told him the main problem was with the left shoulder. He said that the substantive sections of the Worker’s Injury Claim Form[3] were filled in by his solicitor and wrongly omitted listing the left shoulder pain as one of his injuries. He insisted that when working for the defendant he did not pick and choose jobs as he had when he was self-employed. His attention was drawn to the absence of mention of the left shoulder in Dr Pinto’s clinical notes in 2009 (prior to December); but he insisted that he was seeing Dr Pinto for left shoulder pain.
Evidence of treating practitioners
[3]DCB p 57.
10 Dr Pinto diagnosed “bilateral rotator cuff tears” on the basis of the opinions of Mr Pullen and Dr Hwang. He considered that the relevant injury was “related” to the plaintiff’s “job as a truck driver, especially lifting heavy gates and other heavy lifting especially lifting boxes above shoulder height”.[4] In a more recent report, Dr Pinto restated his opinion that the left shoulder injury was “due to the work as truck driver, since 1998, which involved alot of heavy lifting”.[5]
[4]PCB p 36.
[5]PCB p 36.1.
11 On 20 January 2010, Mr Pullen reported that when he saw the plaintiff on 15 August 2007, the plaintiff:
indicated that he had developed bilateral shoulder pain with the right worse than the left. He linked the onset of his shoulder pain to lifting heavy gates on his truck whilst making deliveries. He did recall an injury to his left shoulder about four years ago at work but no specific injury to the right.[6]
[6]PCB p 40.
12 On 30 March 2010, Mr Evans reported that the MRI’s “confirm widespread degenerative changes involving multiple structures in the shoulders…I think that James’ shoulders are essentially worn out and I am not sure if he is going to get a major improvement from surgery”.[7] On 23 June 2010, Mr Evans confirmed his opinion that the rotator cuffs demonstrated degenerative changes without any full thickness tears.[8] He concluded:
In my opinion heavy manual work such as truck driving is likely to aggravate James’ underlying shoulder condition. I am unable to state the direct relationship between James’ occupation and the onset of his condition.[9]
[7]PCB p 43.
[8]PCB p 44.
[9]PCB p 45.
13 On 29 December 2011, Mr Justin Hunt reported[10] a complaint from the plaintiff of bilateral shoulder pain since 2007, with worse symptoms on the left side. Mr Hunt diagnosed impingement syndrome and acromioclavicular joint arthritis. The left shoulder surgery involved arthroscopy and subacromial decompression with removal of osteophytes and repair of the supraspnatius tendon. Mr Hunt concluded[11] that the plaintiff:
injured his shoulders during the course of his employment where he was required to perform repetitive work. His symptoms came on gradually, becoming increasingly symptomatic since the onset of the pain in 2007. I believe his symptoms of bilateral shoulder impingement and rotator cuff tear were materially contributed to by his employment.[12]
Medical evidence – medico-legal opinions
[10]PCB p 56.
[11]PCB p 58.
[12]In his second report dated 13 September 2012 Mr Hunt expressed the same opinion: see PCB p 64.
14 Mr Charles Flanc provided medico-legal reports dated 5 December 2011[13] and 29 October 2012.[14] In his first report, he noted a history of pain in the left shoulder “several months after starting” with the defendant in 2007. He records that the “pain was particularly severe during the day”. He noted that at surgery on 18 November 2011 Mr Hunt removed a large spur which caused “fairly significant tear of the rotator cuff tendon”, and repaired the tendon. Mr Flanc noted the heavy lifting above shoulder height involved in his work with the defendant and the need to lift heavy metal guards around his truck. Mr Flanc took a history that the plaintiff’s shoulders were “not symptomatic at the time he started work as a truck driver” with the defendant[15] although he noted that Mr Pullen in 2007 had taken a history of an injury to the left shoulder four years earlier.
[13]PCB p 75.
[14]PCB p 83.
[15]PCB p 81.
15 Mr Flanc concluded:
In my opinion, the nature of his work at Nani Transport…involved not only heavy lifting but elevation of his arms above shoulder height and it is likely that this work aggravated and accelerated the degenerative condition of his rotator cuff tendons in the sense that it became symptomatic and possibly initiated some degree of tearing (as found at operation by Mr Hunt).[16]
[16]PCB p 81-82.
16 In his second report, Mr Flanc took a history that when self-employed prior to 2007 the plaintiff had “occasional pain in each shoulder towards the end of the day but this was minor and ‘part of general aches and pains’ and did not worry him”. He was able to fully elevate his arms above his head without discomfort prior to starting work for the defendant. Mr Flanc then noted: “He also stated that the truck which he drove before he joined Nani Transport ‘did not have metal side gates’”.[17] Mr Flanc read the plaintiff’s affidavit and noted that the plaintiff may have had mild symptoms in his left shoulders before he started work for the defendant. If that was the case, the question was whether the work for the defendant “resulted in a significant aggravation of the degenerative condition of his shoulders”.[18] Mr Flanc noticed that the plaintiff stated he was driving the same truck for the defendant as he had previously driven when self-employed. Mr Flanc then digressed to indicate that he would need further information before he could apportion the contribution made by his employment as a delivery truck driver between the two employers.[19]
[17]PCB p 86. In his viva voce evidence the plaintiff was adamant that he had not said this to Mr Flanc, and he agreed that the truck he drove from 1998 to 2009 had metal side gates.
[18]PCB p 89.
[19]PCB p 90.
17 Dr David Ho, general practitioner, provided a number of medico-legal reports. In his first report dated 7 January 2010[20] he noted receiving a history of “gradual onset of symptoms or pain in both shoulders and arms starting in late April or early May 2007”, with no specific incident alleged. Dr Ho found bilateral rotator cuff tears in both shoulders which pre-dated his employment with the defendant and concluded that during that employment he could possibly have “sustained an aggravation of the underlying condition”. However, he concluded: “The effects appear to have settled”.[21]
[20]DCB p 8.
[21]DCB p 14.
18 In his second report dated 13 January 2010, Dr Ho repeated his earlier comments and noted that even though the plaintiff’s symptoms would have settled after he stopped work, he had a persisting rotator cuff tear in both shoulders which would “eventually require surgery”. He concluded:
Given the physical nature of his work since 1998, I believe that his employment as a truck driver would have significantly contributed to the rotator cuff tear in his shoulders.[22]
[22]DCB p 17.
19 Dr Ho modified his opinion in the light of Mr Pullen’s report of a shoulder injury in 2003 or 2004 and concluded in February 2010 that the plaintiff’s employment with the defendant was not a significant contributing factor to his bilateral rotator cuff injury.
20 Mr Ian Jones, orthopaedic surgeon, reported on 15 December 2011 that the plaintiff “denied any previous history involving his left or right shoulders”, and reported first experiencing symptoms in his left shoulder in April 2007, which he attributed to his work. Mr Jones opined:
This condition has developed over a prolonged period of time and in my opinion is not the result of any injury suffered or sustained in April 2007. Any aggravation which may have been caused during his work at that time is likely to have been transient and not contributed to the progression or deterioration of his shoulder condition over such a relatively short period.
I do not believe Nani Transport has been a significant contributing factor to his left or right shoulder complaints.[23]
[23]DCB p 22.
21 In his second report dated 5 November 2012,[24] Mr Jones noted the operation report of Mr Hunt and opined that the finding of a rotator cuff tear on the left side raises the issue of previous shoulder injury or spontaneous tearing within a degenerative tendon, which could occur without any injury or on other occasions could occur when lifting at above head height. Mr Jones felt that the left shoulder complaint would preclude him returning to his pre-injury duties and would limit him to lifting a maximum of 5kg at or above shoulder height with either his left or right arms.
Findings and reasons
[24]DCB p 35.
22 There was no serious attack made on the plaintiff’s credit. The plaintiff’s evidence that prior to 2007 he had only minor left shoulder pain for which he took Panadol at night after work was uncontradicted and I accept it. His evidence of a major exacerbation in the left shoulder in May 2007 following which he embarked on various investigations and treatment, including surgery, is also uncontradicted. It is supported by Dr Pinto’s clinical notes recording a consultation, inter alia, in relation to “bilateral shoulder” pain on 23 and 31 July, in August 2007, September 2008, December 2009 and February 2010. I accept that from 23 July 2007 onwards he had serious problems with his left shoulder.
23 Dr Pinto, Mr Pullen and Mr Evans attribute the left shoulder injury to heavy work during the course of the plaintiff’s employment as a truck driver, but without specifying the relevant period of employment.[25]
[25]Dr Ho did so too in his first report: see DCB 14.
24 Mr Hunt, the treating surgeon, as well as Mr Flanc and Mr Ho, noted the plaintiff’s complaints of onset of left shoulder pain in 2007 and diagnosed an aggravation of pre-existing degenerative changes of his left rotator cuff tendon as occurring at that time. I consider that in his second report Mr Flanc did not resile from the opinion he expressed earlier in this regard but became distracted by a matter, that of apportionment, which is not relevant to the issues before me. Mr Jones was initially emphatic that work with the defendant was not a “significant contributing factor” to the plaintiff’s work complaints on the basis that any aggravation at that time “is likely to have been transient”. He offers no explanation for this assertion. I also note that in his second report he acknowledges the surgical findings of Mr Hunt and concedes that tear of a degenerative tendon could occur when lifting above head height. That concession is in line with the findings of a work-related aggravation occurring during the course of employment with the defendant.
25 I consider therefore that the plaintiff has established that he suffered a compensable injury during the course of his employment with the defendant.
Pain and suffering
Plaintiff’s evidence
26 As at 22 October 2010, his worst pain was in his left shoulder. The pain was worse if he extended his arm away from his body. He was having episodes of sharp stabbing pains (lasting two to three minutes) several times per day with no obvious trigger. He was taking Tramadol twice per day and two Panadol each afternoon for his left shoulder pain. The plaintiff says that he writes with his right hand, but is left hand dominant. Although left-handed, because of his left shoulder problem he could no longer use his left arm to wash his hair or to brush his teeth or to towel himself over the back, or to get clothes over his head. He could no longer do outdoor paving such as he did in 2004 and no longer could garden. Prior to his left shoulder injury he enjoyed playing tennis a few times per year but was unable to do that anymore. He used to enjoy weekly outings and dancing with friends. He could no longer raise his left arm to dance. His treating surgeon, Mr Justin Hunt, confirmed the significant ongoing restrictions resulting from his left shoulder pain and restricted range of motion.[26]
[26]PCB pp 65-66.
27 As at 17 November 2012, the plaintiff stated that since the left shoulder operation he has had more limited use of his left arm. He has constant left shoulder pain which is worsened with movement. He cannot lift more than about 10kgs and cannot raise his left arm above head height. He wakes several times per night with shoulder pain. He cannot put a belt on his trousers. He is working full time night shift (2am to 9am) as a delivery driver for a bakery and cannot afford time off work for a further operation and treatment. He continues to see Dr Pinto at least monthly. He takes Endone three to four days per week after work and two to four Panadol per working day. He also uses Indocid. He takes these medications mainly for his left shoulder pain.
28 In terms of employment, he continued working for the defendant until the truck he was driving was all but destroyed in a mishap involving a forklift in November 2009. He did different short term jobs via labour hire agencies until he had surgery. Since June 2012 he has been working 2am to 9am for a bakery delivering bread. He agrees that he earns more now than he did when working for the defendant but that is because he works night shift.
Medical evidence
29 There was consensus among treating and medico-legal experts that as a result of his left shoulder impairment the plaintiff is permanently incapacitated for his pre-injury work and, absent further successful surgery, will continue to suffer pain and restricted range of motion with substantial limitation in domestic and recreational activities. The pain and suffering consequences of the left shoulder impairment were best expressed by the treating surgeon, Mr Hunt, as follows:
He has ongoing difficulty with his left upper limb, in particular, with imaging suggestive of a post mark fracture between the bone anchors. He may also be symptomatic of a rotator cuff tear.
I believe Mr Papaioannou may require further surgery in the form of revision rotator cuff repair to his left upper limb and excision of a bony lump over the humerus, which would exclude him from any employment duties at the present time…Activity modification, avoiding excessive lifting and repetitive work with left upper limb would be ideal.
In related to his domestic and daily activities, Mr Papaioannou continues to remain significantly restricted due to his left upper limb pain symptoms and restricted range of motion. He has difficulty performing most household duties and in particular, cannot perform over-head reaching or heavy lifting...He also has difficulty performing self-hygiene activities such as washing and grooming his hair, shaving and dressing himself.
…Mr Papaioannou is not able to participate in any sporting activities, due to debilitation and ongoing pain symptoms in his left upper limb, in particular.
…He finds over-head reaching and lifting activities problematic, which exacerbate pain symptoms. He has difficulty laying on either shoulder at night, due to pain which tends to waken him.
As such, he finds most social situations difficult and uncomfortable...
…His capacity for pre-injury employment may be permanently limited. [27]
Findings and reasons
[27]PCB pp 65-66.
30 The plaintiff’s evidence as to his pain and restrictions is uncontradicted and I accept it. He has undergone failed left shoulder surgery and, absent another round of surgery, faces permanent pain and restricted range of motion in the left shoulder with substantial impact on his sleep, activities of daily living (including washing, dressing and grooming), recreational and occupational activities. His pain symptoms require him to take analgesic medication daily.
31 In all the circumstances, I consider that the pain and suffering consequences of his left shoulder impairment are more than considerable when compared with other cases in the range of permanent impairments of the body function of the left upper limb.
Conclusion
32 Leave is granted to the plaintiff in the terms sought. I reserve the question of costs.
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