Peachey v Victorian WorkCover Authority (No 2)
[2022] VCC 940
•24 June 2022
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03951
| KARIN LORRAINE PEACHEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 April 2022 | |
DATE OF JUDGMENT: | 24 June 2022 | |
CASE MAY BE CITED AS: | Peachey v Victorian WorkCover Authority (No 2) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 940 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering – injury to the bilateral upper limbs – causation – aggravation – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Peachy v Victorian WorkCover Authority (No 1) [2022] VCC 939; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Lexa v Transport Accident Commission [2019] VSCA 123; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms S Manova | Hall & Wilcox |
HER HONOUR:
Introduction
1Mrs Karin Peachey, the plaintiff, brings two serious injury applications pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), which were heard together.[1] She seeks leave of the Court to commence common law proceedings for pain and suffering against her employer, Wilsons Security Pty Ltd (“Wilsons”), for injuries that occurred during the period of 1 October 2014 to 31 December 2015 when she was employed as a security guard.
[1]Proceeding number CI-20-03919 (Peachey v Victorian WorkCover Authority (No 1) [2022] VCC 939) and proceeding number CI-20-03951 (Peachey v Victorian WorkCover Authority (No 2) [2022] VCC 940). Although separate applications, the plaintiff produced one court book with one set of affidavits and medical material covering both applications
2The plaintiff is aged forty-four and is currently employed as a security guard with Zagamis. She is married and has a ten-year-old daughter.
3Her case is that the injuries to her right and left shoulders occurred in the course of her employment when, as a security guard patrolling a building, she had to pull and push multiple numbers of heavy doors.
4In this application, the Particulars of Injury state the plaintiff suffered a “serious injury” described as, (a) permanent serious impairment or loss of function of her right shoulder including but not limited to aggravation of degenerative changes in the right shoulder and right subacromial impingement and supraspinatus tendonitis, and or, permanent serious impairment or loss of function of her left shoulder including but not limited to left sub-acromial impingement and aggravation of degenerative changes in the left shoulder.[2]
[2] Particulars of Injury – Plaintiff’s Second Further Amended Court Book (“PCB”) 23
5In order to establish an entitlement for leave to commence proceedings, the plaintiff must establish she has suffered a compensable injury to either of her shoulders which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are described as being more than significant or marked, and as being at least very considerable, as per the narrative test set out in s325(2)(b) and (c) of the Act.
6At the outset, the plaintiff’s counsel acknowledged her alleged injuries to her shoulders could not be aggregated together, but that each injury to the shoulder had to stand alone, so to speak, to establish a “serious injury”.[3] I note the authorities confirm bilateral injuries involving separate body functions cannot be aggregated as a single impairment.[4]
[3] Victorian WorkCover Authority v Brassington [2021] VSCA 236
[4] Lexa v Transport Accident Commission [2019] VSCA 123
Issues
7Firstly, causation is in dispute. The defendant disputes the plaintiff’s alleged injuries to either of her shoulders had occurred “out of or in the course of employment” pursuant to s46 of the Act. There is also a factual dispute about the plaintiff’s duties as a security guard.
8Secondly, the plaintiff’s case was put on the basis that the injury to each shoulder was an “aggravation” injury. In an aggravation case, the principles of Petkovski v Galletti[5] need to be followed; namely, where the injuries are an aggravation of a pre-existing condition, there must be consideration of what the evidence discloses of the prior condition and the extent of impairment of the body function before and after the relevant injury.
[5] [1994] 1 VR 436
9Finally, the defendant does not accept the plaintiff has incurred a “serious injury” to either of her shoulders. Therefore, “range” of the injury is in dispute.
The Plaintiff
10The plaintiff bears the onus of proof.
11Counsel for the defendant submitted the plaintiff was an unreliable witness and that she minimised and exaggerated her evidence to suit her case so her evidence should not be accepted with respect to causation and whether the injury is a “serious injury”. The plaintiff was robustly cross-examined.
12The plaintiff was cross-examined about inconsistencies in her evidence. She was upfront in her responses that she had forgotten things and stood “corrected,”[6] and did not try to second guess counsel’s questions.
[6] Transcript (“T”) 73, Line/s (“L”) 23
13The plaintiff’s affidavit detailed one consequence of her shoulder pain was disrupted sleep, stating the pain “wakes me several times a night. I find it difficult to fall and stay asleep as I cannot lie on either side for long”.[7] In cross-examination, she conceded the medical records reported her as having previous problems with disrupted sleep in the years 2009, 2010 and 2013, prior to working with Wilsons at Treasury Place.
[7] PCB 32
14The plaintiff’s affidavit detailed she was no longer able to ten-pin bowl due to her shoulder pain and her feet pain, yet she conceded she had not in fact bowled since 2009 when she suffered a whiplash injury.[8] When asked about general practitioner (“GP”) notes from 2013 referring to joint pains, in the hand, feet and left ankle, she was unable to explain the cause of her left ankle pain reported in March 2013. Neither was she able to explain her chiropractor’s report that states, “she is significantly restricted in her ankle movement”.[9] It is perhaps not surprising her recollection is imprecise given she had twenty-two GP attendances in 2013.[10]
[8] T82
[9] T91
[10] Defendant’s Court Book (“DCB”) - Modern Medical Dandenong medical records
15It was put the plaintiff exaggerated the distances she walked during her shifts, for example the reference to 30 kilometres per shift. She stated she once told her GP a co-worker showed her a pedometer at the conclusion of a shift which calculated this as the distance they had covered during the shift.[11] The plaintiff also believed it was a conservative estimate and this incident occurred prior to the change in her duties at the six-month mark.
[11] T58
16The plaintiff agreed, when it was put to her that the bike rack opened in September 2015, and the hours of operation were “Open 6.00am, close 19 hours,”[12] which was half-an-hour before her shift ended and half-an-hour after she commenced work. This cast doubt on her claim in her affidavit that she “constantly had to go down to the bike rack area as soon as someone needed their bikes”.[13]
[12] T57; PCB 27
[13] PCB 27
17Overall, despite some inconsistencies in her evidence, she was without guile, and the plaintiff struck me as a hardworking, doughty woman who gave earnest and straightforward plain-spoken evidence to the Court.
18I am not of the view the inconsistencies in her evidence either impugned her credit or caused me to seriously doubt her reliability as a witness.
Causation
19In support of her application, the plaintiff filed three affidavits. She was cross-examined on affidavits dated 9 April 2020, 1 September 2021 and 22 April 2022, and her husband filed an affidavit dated 6 September 2021. Whilst this decision concerns her shoulders, the amount of walking she did on patrols as a security guard, particularly in the first six months at Treasury Place, is relevant, as each patrol was said to involve her pushing and pulling doors.
Description of duties
20The plaintiff commenced work for Wilsons in 2008. In September 2014, following maternity leave and then sick leave, she resumed work and was transferred to Treasury Place on Spring Street. She described the work as “very different” to her earlier work for Wilsons. One building on Macarthur Street was thirteen levels and the building on Spring Street was five levels:
“… I had to walk around most of my shift … We had to patrol the outside and inside of both buildings and each level of the buildings. We had to pull open glass doors and check each level to make sure it was all secure. I believe there were about 4 doors per level. It took a lot of force to pull open and then close the glass doors. The doors were not automatic at the time. The shifts were usually 12 hours long. For the first 6 months or so I worked from about 6.30pm to 6.30am, 5 days a week. … About 6 months into this job, one of the control room operators, Dante said not to worry about opening all the doors. He said just to check the foyer of each level. Eventually the doors became automatic, and our services were no longer required.”[14]
[14] PCB 27
21The defendant relied on two affidavits from Mr John Wilcher, Operations Manager at Wilsons, both sworn 6 September 2021. The first affidavit confirmed the plaintiff as working the nightshift from 6.30pm to 6.30am but only had to perform six patrols per night – three on either side of midnight – which took 50 minutes each.
22In his second affidavit, Mr Wilcher stated:
“During the internal patrol of the buildings the Plaintiff was required to check that the doors were locked and secured. I estimate that per patrol the Plaintiff would have to check approximately 20 to 30 doors. To check a door is locked and secured you simply have to move the handle, you do not have to pull or push the door. The Plaintiff would have rarely been required to open and close doors. The doors in Treasury Place are all automatic doors meaning they open automatically when an access card is swiped except for the stairwells which have hinged manual access doors. The doors in 1 Macarthur Place are a mixture of automatic and manual doors. There was no manual lifting or pushing in the Plaintiff’s role as a security guard performing patrols.”[15]
[15] DCB 9-10
23The plaintiff was extensively cross-examined about the work she performed at Treasury Place. She stated, when she commenced in the role, she asked Mr Wilcher about her duties. He told her:
“Don’t worry, just worry what the other[s] do, they know what they’re doing.”[16]
[16] T40, L13-14
24The plaintiff stated she did “a lot more” than six patrols a night for the first six months, estimating she did ten to eleven patrols –
“… basically, as soon as we’d finished doing the walk through, each level, each tenancy, get back down to the control room, we would maybe stop for 10 to 15 minutes and go out again.”[17]
[17] T40, L16-19
25The plaintiff’s evidence was Mr Wilcher never confirmed or denied whether security guards were supposed to be going inside the tenancies.[18] She explained she was trained by “the prior guards” and “that’s what I understood the duties to be”.[19]
[18] T43
[19] T43
26The plaintiff described her duties involving the doors as follows:
“We would make sure the door was secure to start with. We would usually have an access card, there was no cards [sic] there was an access card to put on the card reader. We would then open, that would release the door mechanism.
…
We would open the door, we would enter, we would close the door behind us to make sure it was secure, push against it to make sure that the mechanism has re-secured. We would walk the tenancy, we would open the door on the opposite side of the tenancy to verify again with a swipe card to access the door again to show that we had been walking around both sides of the tenancy, the entire level, come back to the original door, open it again with a swipe card or egress button usually to get out and again push the door open and make sure that the door had re-secured with the mechanism or mag lock to make sure the door was secure. We would go down to the next level and proceed to do exactly the same.”[20]
[20] T43-44
27Mr Wilcher estimated the plaintiff had to check twenty to thirty doors per patrol. The plaintiff estimated it was more like fifteen floors and four doors per level,[21] which makes approximately sixty doors (although the plaintiff was not able to make the calculation and in re-examination, she estimated it as four doors over twenty-one levels, which was calculated as eighty-four doors, and in submissions, counsel put it at eighty.)[22] Further, the plaintiff did not agree with Mr Wilcher’s description that she was only required to check the door was secured by moving the handle.[23] She stated most of the tenancy doors were on a swipe card and it was the fire doors that had swing handles. She stated:
“… the way I was trained, that is what we had to do, push and pull on the doors to verify that the door could not be opened or access in any way… If the right arm got sore I would use the left arm … .”[24]
[21] T44-5
[22] T96 and 141
[23] T45
[24] T48
28The plaintiff described the doors with long brass handles as “extremely heavy” and that as well as pulling those doors open, she often held them open for a colleague to walk through, “maintaining that extra weight on your arms … for a little bit of an extended period of time”.[25]
[25] T48
29Regardless of what the defendant stated the plaintiff’s duties were “supposed” to be, I accept the plaintiff’s evidence she was told to do what the other security guards did and that is what she did. Mr Wilcher did not personally tell her what her duties were, nor did he accompany her on any of her patrols. He had no direct knowledge of what she was actually doing each shift. The plaintiff gave direct and detailed evidence of her duties at Treasury Place for Wilsons and I have no reason not to accept her account.
30In summary, her evidence was, for the first six months, she had to walk continual shifts, some ten to eleven per 12-hour shift, and each patrol took approximately 50 minutes. During each patrol, she pulled or pushed approximately sixty doors. After six months, the number of patrols reduced to six per shift.
31The plaintiff reported the pain in her shoulders and feet to Mr Wilcher on 1 September 2016. In her evidence, she stated: “On numerous times I would complain to him about the shoulders being sore and the fact my feet were sore …”[26] and that she “had numerous conversations with him about that prior”.[27]
[26] T51
[27] T53
32In her affidavit, the plaintiff stated she “started to feel pain in my shoulders within about 6 months of doing the Treasury [P]lace work. The pain in my right shoulder was worse than in my left.”[28] In cross-examination, she stated her shoulder pain commenced when she started at Treasury Place. She stated that previous bilateral shoulder problems “resolved before I started at Treasury Place”.[29]
[28] PCB 28
[29] T71
33I accept there is a temporal relationship between the timing of her right shoulder and left shoulder pain and her work at Treasury Place. I now turn to whether employment is a ‘significant contributing factor’ to her shoulder conditions.
34I next consider the medical evidence.
Treating health professionals
35The plaintiff’s treating GP and allied health professionals’ reports did not specify when the plaintiff’s shoulder pain developed and whether it is work related.
Plaintiff’s medical legal reports
(a) Dr James Rowe – occupational physician
36In his report dated 20 July 2021, Dr Rowe confirmed the plaintiff’s diagnosis as:
“-Right shoulder subacromial impingement and supraspinatus tendinosis;
-Right shoulder acromioclavicular joint arthritis;
-Left shoulder mild subacromial impingement; and
- Bilateral plantar fasciitis.”[30]
[30] PCB 88
37Dr Rowe stated he was satisfied the plaintiff’s –
“… injuries have developed as a result of the nature of her work performed over time, particularly the repetitive use of her arms to push heavy security doors …
She denied any previous history of injury or of any other precipitating event that led to the development of her present and ongoing symptoms.”[31]
[31] PCB 89
(b) Mr Ash Moaveni – orthopaedic surgeon
38Mr Moaveni prepared a report dated 3 August 2021 stating the plaintiff reported –
“… her role involved pulling and pushing heavy doors to make sure that they were secure … .
… and began feeling pain in her shoulders approximately six months after starting to work at Treasury Place.”[32]
[32] PCB 103
39He diagnosed the plaintiff with –
“Right shoulder rotator cuff tendinopathy with partial intrasubstance tear and subacromial bursitis.
Left shoulder soft tissue injury.”[33]
[33] PCB 108
40He was of the opinion the plaintiff’s employment “was a significant contributing factor to the development of the said injuries …”.[34]
[34] PCB 108
(c) Dr Gavin Weekes – pain specialist
41Dr Weekes assessed the plaintiff and prepared a report dated 5 August 2021. In his report he refers to previous shoulder issues “prior to the onset of the abovementioned symptoms” of bilateral shoulder pain.[35]
[35] PCB 117
42In terms of diagnosis, in his opinion, the plaintiff has –
“… evidence of a chronic pain condition affecting both shoulders with an underlying diagnosis of supraspinatus tendinosis and a partial tear and subacromial bursitis and impingement …
…
It is my opinion her employment was a significant contributing factor.”[36]
[36] PCB 119
(d) Dr Anthony Jacobsen – orthopaedic surgeon
43Dr Jacobsen noted the plaintiff was likely to have pre-existing degenerative changes to her rotator cuff tendon but that the repetitive overhead activities or heavy use of the shoulder could contribute to the onset of impingement symptoms. He stated: “The lack of a specific time of onset makes causality more difficult.”[37]
[37] PCB 70
44Mr Jacobsen was equivocal regarding causation, stating it was possible her likely pre-existing supraspinatus intra-substance degeneration, previously asymptomatic, has become aggravated by her employment in security.
Defendant’s medico-legal reports
(a) Dr Terence Saxby – orthopaedic surgeon
45Dr Saxby prepared five reports, dated 8 July 2021, 6 August 2021, 19 August 2021, 7 September 2021 and 1 April 2022. In his view, the plaintiff’s injury was not work related.
46In his report dated 6 August 2021, he confirmed the plaintiff’s diagnosis of bilateral shoulder supraspinatus or rotator cuff tendinopathy associated with impingement. This report was based on a review of documentation, including the plaintiff’s affidavit dated 9 April 2020, but not an assessment of the plaintiff. He found the plaintiff was required to check twenty to thirty doors per patrol and required her to turn the knobs but rarely open and close doors. It was his view the plaintiff would be in the same position regardless of her employment as there was no excessive load placed on the rotator cuff. In his view, the pathology on her scans was very common and due to underlying rotator cuff tendinopathy or degenerative change in the shoulders.[38]
[38] DCB 31
47In his report dated 19 August 2021, with a Telehealth assessment of the plaintiff, Dr Saxby was told by the plaintiff “during the course of her employment she was required to pull open heavy doors”.[39] He also noted she had pre-existing shoulder conditions dating back to 2004 and 2007. Dr Saxby maintained his same position that her shoulder injuries were not work related.
[39] DCB 35
(b) Dr Amanda Sillcock – consultant occupational physician
48Dr Sillcock prepared a report dated 19 September 2016 providing a clinical opinion about the plaintiff’s claim for worker’s compensation. Dr Sillcock stated, of the plaintiff:
“… she has had the gradual onset of pain in both shoulders over the same period. She attributes this to pushing and pulling on doors all the time. She said that she has had a gradual increase in pain and loss of movement, … .”[40]
[40] DCB 18
49Following review of the x-ray, ultrasound and MRI, Dr Sillcock diagnosed the plaintiff with bilateral rotator cuff inflammation in the shoulder. Her opinion was the shoulder conditions were not caused by work.
Submissions
50The plaintiff’s counsel clarified the plaintiff’s employment aggravated the pre-existing condition, namely the degenerative changes in the shoulder, and submitted that although her treating doctors did not mention a cause, the medical evidence “is that the doctors accept that employment in that period caused those injuries by way of aggravation”.[41]
[41] T139
51The defendant’s counsel submitted six factors in combination pointing to her employment not being a significant factor. Firstly, it was put the plaintiff’s duties did not involve heavy or repetitive pushing or pulling, or rotator cuff motion. As noted, I have accepted the plaintiff’s evidence over the affidavit material from Mr Wilcher regarding the nature of her duties which I accept did involve pushing and pulling heavy doors. This may have been as many as sixty doors per patrol, which during the first six months of employment, was ten or eleven patrols per shift.
52The second and third reasons put was that there was no specific incident that led to the onset of pain, and her pain was not reported by the plaintiff to Mr Wilcher until September 2016. I accept the plaintiff’s evidence and her reports to her doctors (she first complained to her GP on 16 September 2015 and again on 16 October 2015) the pain was gradual in onset and not until six months after she commenced work at Treasury Place. Although the first record by Mr Wilcher of her complaint was on 1 September 2016, the plaintiff’s evidence was she complained to him on a number of occasions prior to that about her pain, and stated: “On numerous times I would complain to him about the shoulders being sore … .”[42]
[42] T51-52
53The fourth reason put was that the plaintiff’s treating doctors did not address the issue of causation. I note the plaintiff’s GP, the osteopath and the chiropractor do not provide an opinion regarding causation, and Mr Jacobsen, the orthopaedic surgeon, is equivocal regarding causation. All the reports however do refer to the plaintiff describing her duties as opening and closing multiple heavy doors, therefore establishing the temporal relationship with her injury and her course of employment. I do not accept the fifth reason put, that the plaintiff’s medico-legal experts were given incorrect histories, as I have already accepted the plaintiff’s evidence regarding the nature of her duties.
54The sixth reason put relies on Dr Saxby’s report, which I will respond to below.
Finding regarding causation
55I accept the plaintiff’s evidence regarding the duties she performed.
56In September and October 2015, she complained to her GPs of “several months of bilateral shoulder pain,” and the description she gave to Dr Elias of “opening and closing heavy doors,” is consistent with her case.
57The medical evidence in the reports of Dr Rowe, Mr Moaveni and Dr Weekes (and the supplementary reports of Dr Rowe and Mr Moaveni, in response to Dr Saxby’s reports) is that the aggravation of her shoulder injuries was caused by her employment at Wilsons between 1 October 2014 and 31 December 2015.
58Dr Saxby’s report dated 6 August 2021 describes the plaintiff’s duties as –
“She was required to check 20 or 30 doors per patrol and check if the doors were locked and secure and Ms Peachey was required to turn the knob and attempt to open the access doors. She was rarely required to open and close doors.”[43]
[43] DCB 30
59It is not clear what material Dr Saxby relies on for that description as the plaintiff’s duties as her affidavits, the Worker’s Injury Claim Form and the reports by Dr Sillcock, Dr Jacobsen and Dr Demirtzoglou all refer to her pushing and pulling heavy doors.
60In his next report dated 19 August 2021, Dr Saxby refers to the “mechanism of injury as given and alleged by Ms Peachey is due to repetitively turning door handles and pushing and pulling on doors”.[44] This does not alter his original opinion, although turning knobs appears to be a different mechanism to also pushing and pulling on doors, and he states that this “biomechanical action of attempting to open and close doors would not involve rotator cuff muscles”.[45]
[44] DCB 39
[45] DCB 39
61I have two issues with Dr Saxby’s reports. The first is the inaccurate (and unexplained) reportage of the plaintiff’s duties in his first report. Secondly in his second report, Dr Saxby does not distinguish the different physical mechanics involved with turning door handles, and pushing and pulling heavy doors, but maintains his original assessment without explanation. To my mind, this lack of analysis weakens the weight I give his opinion.
62I am satisfied, on the balance of probabilities, persuaded by the weight of the medical opinion from Dr Rowe, Mr Moaveni and Dr Weekes, and having found a temporal relation between the injury and the employment, there is a causal connection between the plaintiff’s injury and her employment. I am satisfied the employment, namely the actions of pushing and pulling heavy doors, was a significant contributing factor to the aggravation of the plaintiff’s pre-existing right and left shoulder injuries.
Is the injury an aggravation?
Extent of impairment of body function before “relevant injury”
63As noted, in an aggravation case, the principles in Petkovski v Galletti[46] need to be followed; namely, what does the evidence disclose of the prior condition and the extent of impairment of the bodily function before and after the relevant injury? The aggravation itself must be a “serious injury”.
[46]Supra
64With respect to pre-existing shoulder pain, the plaintiff was questioned about March 2004 when she experienced right shoulder pain after slipping in a stairwell at the University of Melbourne. Further, in 2007, she experienced problems in her left shoulder when she was painting, which was queried as a rotator cuff injury.[47] Further, in 2009, she was in a transport accident and sustained a whiplash injury.[48] Also, in 2009, 2011 and 2012, she was seeking treatment for right or left shoulder pain from her chiropractor, although I had great difficulty deciphering these handwritten records.[49] There is no reference in the GP notes to shoulder pain after 2007, until 16 September 2015.[50]
[47] T67
[48] T68
[49] T68
[50] DCB 177
65In 2009, a Transport Accident Commission (“TAC”) chiropractor’s questionnaire refers to “Bilateral shoulder restriction in abduction”.[51]
[51] DCB 109
66In 2011, a TAC chiropractor’s questionnaire refers to her having “Bilateral shoulder restriction in abduction,”[52] yet in her affidavit, the plaintiff stated: “In about 2007, while working at Chubb, I had left shoulder pain. I believe the pain resolved on its own prior to me starting work with Wilsons.”[53]
[52] DCB 112
[53] PCB 26
67The plaintiff’s evidence was that her prior shoulder “problems resolved before I started at Treasury Place ... the pain was no longer there and everything else was okay”.[54] She agreed she had a complete recovery in relation to both her shoulders.
[54] T71
68When questioned about pre-existing shoulder conditions prior to 2014, the plaintiff’s evidence was, “I considered … the issues to have resolved before I started Treasury Place … I was able to hang washing, I was able to do a lot of physical movements.”[55]
[55] T72, L13-16
69Despite each shoulder injury being assessed as an aggravation injury, the evidence discloses from 2009 the plaintiff had right and left shoulder symptoms from a motor vehicle accident which were treated by a chiropractor in 2009, 2011 and 2012. In 2014, she was no longer having that treatment, describing her symptoms as “resolved,” agreeing she had a “complete recovery,”[56] and was able to perform what I conclude was moderately physical work with Wilsons. So even though the principles of aggravation apply, I accept the plaintiff’s evidence that impairment and pain and suffering consequences as identified are caused by the aggravation injury to the left and right shoulders.
[56] T71-72
70The evidence discloses the plaintiff was relatively symptom free of pain in her shoulders at the start of her work at Treasury Place.
Is the aggravation injury a “serious injury”?
71The history of the plaintiff’s shoulder injury is taken from Dr Rowe’s and Dr Demirtzoglou’s chronology. On 16 September 2015, the plaintiff attended her GP for bilateral shoulder pain for the previous five months. On 29 September 2015, an x-ray and ultrasound of both shoulders demonstrated a right subscapularis tendon partial tear and bilateral bursitis. On 8 April 2016, she saw orthopaedic surgeon, Mr Byrne, who organised an MRI scan of her shoulders, but no rotator cuff tear was demonstrated. He recommended a cortisone injection. In May 2016, she started seeing a chiropractor for her shoulders.
72In July 2016, she saw a second orthopaedic surgeon, Mr Jacobsen, who recommended a further MRI scan of her right shoulder. This demonstrated degenerative tendinopathy of the supraspinatus tendon (supraspinatus tendinopathy) and subacromial bursitis.
73On 26 August 2016, she had a cortisone injection into her right shoulder which was not successful.
74Mr Jacobson recommended surgery, namely a subacromial decompression with rotator cuff debridement and repair on her right shoulder, which was declined by WorkCover. As the plaintiff appeared to be improving, he suggested non-operative, conservative treatment.
75Dr Rowe diagnosed:
“-Right shoulder subacromial impingement and supraspinatus tendinosis;
- Right shoulder acromioclavicular joint arthritis;
- Left shoulder mild subacromial impingement … .”[57]
[57] PCB 88
76Dr Jacobsen diagnosed right shoulder subacromial impingement and supraspinatus tendinosis with intrasubstance degeneration.
77Dr Jacobsen diagnosed left shoulder with mild subacromial impingement with milder symptoms than the right shoulder.
78The diagnosis for each shoulder is different, with the right shoulder having a more serious diagnosis.
79The plaintiff is not taking any prescription medication for her shoulder symptoms. She has not seen her orthopaedic surgeon for five years. She has not had treatment from her GP for her shoulder pain between August 2016 and November 2018, because, she stated, “there’s nothing they could do for me”.[58] Although she does not use the exercise roller for her shoulders as recommended by her osteopath, Dr Sharon Banks, her treatment is of the “‘hands on” variety, with an osteopath and chiropractor.
[58] T76
80I take into account the methodology in Haden Engineering Pty Ltd v McKinnon[59] for evaluating the “pain and suffering” consequences.
[59](2010) 31 VR 1
Pain and suffering
81The plaintiff described having the pain in her shoulders “all the time”’ which she described as a burning sensation to sometimes feeling completely numb:[60]
“… The pain is worse when I use my arms, such as when I try to perform cleaning duties or carry bags. The pain is worse when I raise my arms above shoulder height or try to twist my arms behind my back … both shoulders are similar now in terms of pain.”[61]
[60] T72
[61] PCB 30
82She estimated her shoulder pain at a 95 per cent level or eight or nine out of ten.[62]
[62] T77
83In her affidavit and evidence, the plaintiff did not distinguish between either the right and left shoulder as having greater pain when she was describing the pain or the consequences of the pain.
Impact on daily activities
84The plaintiff states she can still clean the house, but each task takes a long time, and she will be in pain from it the following day.
85She now uses a very light Whipper Snipper when gardening and has a ride-on mower for mowing. She can no longer do minor home repairs. She has difficulties dressing, such as putting her arms through sleeves and bending her head to get jumpers and shirts on. She can no longer hold a hair dryer, so wears her hair up to avoid brushing and styling it. Her shoulder pain has also impacted on her ability to chop meat and vegetables when cooking. She avoids carrying any heavy shopping due to shoulder pain.
86She states she is barely able to cross stich, paint or do arts and crafts with her daughter because of the shoulder pain. She cannot lift her daughter, nor can she throw a ball or fly a kite with her or play handstands or racket ball games or do any laps of the pool. She states she even struggles to hold the phone next to her ear for more than a few minutes due to the shoulder pain.
87In addition, she is restricted in her enjoyment of interests such as knitting and crocheting, jigsaws, fishing, camping and reading books because of the injury to her right and left shoulders.
88Her level of pain fluctuates, depending on whether she has been using her arms. She tries to do as much as she can around the house but is restricted by the pain.
89As her husband has retired and has a “left arm that doesn’t work,”’[63] she assists him around the farm, for example by moving hay bales using a type of low trailer,[64] and in caring for their ten- year-old daughter.
[63] T23
[64] T22
Effects on employment
90The disabling effect of the plaintiff’s pain may be informed not only by what the plaintiff has lost but also by what is retained.[65] To that end, the defendant notes the plaintiff can work up to 56.75 hours per week. The plaintiff stated she works 12-hour shifts and might drive for an hour or an-hour-and-a- half either way.[66]
[65] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
[66] T34
91She can drive an hour to and from work, and sometimes drives up to three hours, for example between Doveton and Bairnsdale for work.[67]
[67] T20
92In her second affidavit, she noted she remains employed as a security guard with Zagamis and works almost exclusively at the Patties gatehouse “which involves sitting in the gatehouse for most of the time and only occasionally getting up to check on vehicles”.[68] There is no requirement for her to open or close doors.
[68] PCB 40
93In her third affidavit, she noted she remains working for Zagamis, but “most of the time I just sit in the office” and she is no longer required to do as many foot patrols, “usually only about two times a week”.[69]
[69] PCB 128
94The plaintiff’s new employer, Zagamis, has, to a certain extent, been able to accommodate her restrictions so that the majority of the work she does is sitting down. The plaintiff stated:
“I continue to be restricted because of the injuries to my left and right shoulders ..., but my employer is aware of my restrictions and they are very accommodating in the way that they allocate my shifts.”’[70]
[70] PCB 41
What does the Plaintiff do to manage the injury and pain?
95Prior to the COVID lockdown, the plaintiff was having treatment for her right and left shoulders from her osteopath and chiropractor once a week to once a fortnight.
96She stated there is not a lot her GP can do for her,[71] she gained temporary pain relief from “hands-on” treatment from her osteopath and chiropractor and has regular massage therapy for her shoulders and over-the-counter painkillers.[72]
[71] T75
[72] T80
97Although she tries to avoid medication, she takes Voltaren, Nurofen or Nurofen Plus up to five times a week and takes the maximum daily amount, which calculates as forty tablets a week. When she has been washing or gardening or doing other household chores, she has to increase her painkillers on those days. She also has to take Somac in order to reduce the flare up from her peptic ulcer, which developed from the medication she was taking.
98Since lockdown ended, she has been seeing her chiropractor for treatment on both shoulders every six weeks. COVID has affected the regularity with which she can see her osteopath.
Medical evidence regarding pain
99Her GP, Dr Demirtzoglou, stated the plaintiff has shoulder bursitis so she should avoid repetitive overhead activity and will be restricted in activities which involve repetitive use of her shoulders and activities with arm use above shoulder level.[73]
[73] PCB 80
100Her osteopath, Dr Sharon Banks, stated:
“Karin is still able to work currently, however does require regular osteopathic treatment for regular pain management.”[74]
[74] PCB 82
101In respect of both her left and right shoulders, Dr Rowe stated:
“She continues to suffer with pain and restriction in both her shoulders … The shoulder pain radiates into both sides of the neck and sometimes down into her lower back.
She says she had little movement in both shoulders and her pain is aggravated by lifting and any attempts to use her arms in a repetitive manner e.g. cleaning.”[75]
[75] PCB 89
102Dr Rowe’s opinion was that each injury to her right and left shoulder was likely to cause an ongoing incapacity and as a result of her left shoulder injury alone, this has compromised her social, domestic and recreational capacity.[76]
[76] PCB 96-97
103Dr Moaveni stated the plaintiff reported –
“… a dull, constant pain in both the left and right shoulders which is aggravated by movement and sustained positions of elevation. Pain in the right shoulder is worse than the left and both are irritated by overhead movement. … .”[77]
[77] PCB 105
104He noted, given these symptoms arose in 2015, her prognosis in terms of further recovery is poor.
105Dr Weekes stated:
“Ms Peachey describes bilateral shoulder [sic]. It is associated with some neck pain and can be associated with some paraesthesia and numbness in her fingers. She describes a pain score of 7/10. She describes the pain as constant, burning, aching and sharp.”[78]
[78] PCB 118
106Dr Saxby’s opinion was that the bilateral shoulder impingement and rotator cuff tendinopathy are common degenerative conditions, and he believed the plaintiff’s shoulder problem was a degenerative condition unrelated to her work history.[79] He noted:
“… The pain has improved somewhat over time and in recent times she has changed her duties and is working for a different firm and things have improved significantly since that time.”[80]
[79] DCB 40
[80] DCB 38
Other evidence about the disabling effect of pain
107A consideration in this case is the plaintiff’s stoicism. The evidence of the disabling effect of her pain is diminished by the fact the plaintiff is employed part time but in effect works full-time hours, and, further, she assists around the farm, as her husband is disabled, and helps to raise their ten-year-old daughter. It could be said she has, in effect, been “prepared to put up with [her] pain and suffering and get on with [her] business as best [she] can”.[81]
[81] Dwyer v Calco Timbers Pty Ltd (No 2) (supra) per Nettle JA at paragraph [3]
108The plaintiff takes over-the-counter pain relief on a daily basis but is not on prescribed medication.
109The fact the plaintiff is able to work is relevant to the question whether the pain and suffering consequence of the injury is “serious”, but it is not determinative, and it is necessary to consider the evidence as a whole.[82] The plaintiff has returned to work as a security guard but has specified her duties are predominantly sedentary, in a gatehouse, with only two walking patrols per week.
[82] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26]
Analysis of impairment consequences
110The plaintiff’s counsel referred to Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd[83] where her Honour stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[83](2007) 17 VR 592 at paragraph [196]
111The inability of the plaintiff to use her arms in a normal manner as a result of her shoulder pain impacts on a wide range of the plaintiff’s daily activities. These include personal hygiene tasks such as haircare and dressing herself, to making family meals, doing household tasks and enjoying her mothering role to her ten-year-old daughter through shared activities.
112As noted, the evidence is equivocal as to the pain experienced as between the plaintiff’s right and left shoulder: her evidence about her pain referred to her “shoulders”.
113Whilst complaint of pain does not establish the veracity of pain, the weight of the medical reports supports the plaintiff’s reports of pain as continual pain in each shoulder.
114She noted that after gardening or housework she is exhausted due to the pain in her shoulders.
115The medical evidence supports her prognosis is poor and her condition, which she has had for five years, is unlikely to improve.
116Against this, the plaintiff has not had surgery for her right shoulder and is not prescribed pain medication. She is also able to drive long distances and work 12‑hour shifts. Although she is not employed on a full-time basis, she, at times, works hours equivalent to or greater than full time.
117To deal with the pain, she is on a considerable amount of painkillers on a daily basis and takes more after engaging in normal household activities. Her medication regime has caused a peptic ulcer, requiring more medication. She has not had surgery and does not use the exercise roller suggested by her osteopath, for reasons unknown.
118In determining whether, on the balance of probabilities, these consequences to the right shoulder and the left shoulder, when judged by comparison with other cases in the range of possible impairments, can fairly be described as being more than significant or marked and as being as least very considerable, “involves a value judgment, in which matters of fact and degree, and of impression, are operative”.[84]
[84]Stijepic v One Force Group Aust Pty Ltd and Victorian Workcover Authority [2009] VSCA 181 at paragraph [41]
119In reaching a conclusion about whether the plaintiff has established she has suffered serious injury, “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.[85]
[85] Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]
120In my view, this is a line ball case: the burden is on the plaintiff. The consequences detailed individually may be less than the sum of the whole, when considering the pain the plaintiff experiences when doing mundane yet necessary activities for daily life, namely, drying her hair, speaking on her mobile phone and chopping vegetables for the family dinner. However, the plaintiff can drive her car for long periods, work long hours, and help on the farm delivering hay bales or moving soil using a trailer with a low floor, use the ride-on mower, as well as clean the house and do gardening. Her ability to work is not conclusive against her on the issue of pain and suffering consequences, however, it is part of a broader context of other relevant evidence. Her self-assessment of her pain levels as “95%” and “eight or nine out of ten,” whilst sincere, appears somewhat at odds with both the intensity of her paid and unpaid workload and the over-the-counter medication regime she is taking for pain management.
121I have no doubt the plaintiff suffers pain in her right and left shoulders which is not trivial in nature, however taking the evidence as a whole, I am not satisfied that the aggravation injury to the right shoulder and the left shoulder have consequences that can be described as more than significant or marked or as being at least very considerable.
122I am not satisfied the plaintiff has established an entitlement for leave to commence a proceeding for pain and suffering damages in respect to the injury to her right shoulder and her left shoulder suffered throughout the course of her employment with Wilsons from 1 October 2014 to 31 December 2015.
123The application will be dismissed.
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