Pepper v Woolworths Limited
[2015] VCC 1030
•31 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-01230
| MICHAEL PEPPER | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2015 | |
DATE OF JUDGMENT: | 31 July 2015 | |
CASE MAY BE CITED AS: | Pepper v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1030 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left shoulder – whether the consequences of such injury are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave to the plaintiff to commence a proceeding claiming damages for pain and suffering in respect of injuries suffered by him on or about 6 October 2007 in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S J A Jurica | Adviceline Injury Lawyers |
| For the Defendant | Mr A W Middleton | Sparke Helmore |
HIS HONOUR:
1 Michael Pepper alleges that he suffered an injury to his left shoulder on or about 6 October 2007 in the course of his employment with the defendant. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB 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 he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Pepper’s left shoulder.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18]–[19]
6 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”.[3]
[3]Section 134AB(38)(c)
7 Mr Pepper submits that the pain and suffering consequences of his injury can be fairly described as being more than significant or marked and as being at least very considerable. The defendant denies that the consequences of his injury could be so described.
Background
8 Mr Pepper is aged forty-two. He was educated to Year 10 level in Hobart.
9 Upon leaving school, he completed an apprenticeship as a butcher. From that time, he worked as a butcher in various locations in Hobart and Melbourne.
10 In about 1992 in Melbourne, he suffered an injury to his left shoulder. He was absent from work as a consequence for about three months. I accept that he fully recovered from that injury within a relatively short time.
11 He continued to work as a butcher in Tasmania and Victoria. Between 2000 and 2004, he also worked as a truck driver on weekends.
12 He commenced employment as a butcher with the defendant in March 2004. In addition, he worked as a casual truck driver for other employers on a part-time basis.
13 On 6 October 2007, in the course of his employment with the defendant, he climbed onto a pallet to reach some boxes. The plastic tape on one box got caught up in the box beneath it, and both of those boxes fell. Each of them weighed about 20 kilograms. He took the weight of the two boxes on his left shoulder and on the left side of his neck. He immediately suffered pain in the left shoulder and neck.
14 He has not worked for the defendant or as a butcher since that date.
15 In 2009, in the course of searching for alternative employment, Mr Pepper obtained qualifications as a seafarer, working on cargo ships off the Australian coast for a number of different employers. Generally, such employment has been on a contract basis. At the end of a contract he has, on occasions, been out of work for some weeks or months before negotiating a further contract. He has continued, off and on, to work in the seafaring cargo industry as an integrated rating up until the present time.
16 In February 2014, Mr Pepper commenced work with Samson Express Offshore. He ceased such employment in October 2014 at the conclusion of his contract.
17 About seven weeks ago (that is, in about early June 2015), he commenced working for Miclyn Offshore as an engine room integrated rating.
18 I accept his evidence that his usual duties as a rating have been very light – mainly operating mechanical winches by the use of a lever with his right hand and the steering of the vessel with easy and relatively slight movements of a steering wheel.
Treatment and diagnosis
19 Following the accident in October 2007, Mr Pepper attended upon a doctor at the Burwood Clinic and has had an x-ray, ultrasound and MRI scans performed in relation to his left shoulder.
20 Following the accident, Mr Pepper had also complained of symptoms to his neck and low back and received treatment in relation to those conditions. He has made a relatively good recovery from them and does not here allege that those injuries constitute a serious injury.
21 In November 2007, Mr Pepper’s general practitioner referred him to Mr Christopher Pullen, an orthopaedic surgeon, and was also referred for physiotherapy for his shoulder.
22 In November 2007, Mr Dooley (orthopaedic surgeon) considered that it was probable that Mr Pepper had suffered a soft-tissue injury to the rotator cuff or that he may have damaged the labrum and the attachment of the longhead of the biceps tendon.
23 An MRI scan of the shoulder in January 2008 was reported as showing tendonosis of the supraspinatus and subscapularis, a tiny partial thickness tear of the supraspinatus, and features of adhesive capsulitis.
24 In May 2008, Mr Pepper had an injection of marcain into the shoulder.
25 A further MRI scan of the left shoulder taken in November 2011 showed outlet impingement, secondary primarily to the AC joint OA (which I assume means osteo arthritis), with the bursal surface fraying and high-grade intrasubstance tendinosis/tear of the mid-third fibres over a length of 23 by 27 millimetres in diameter. He was seen again by Mr Pullen, who advised arthroscopic surgery.
26 On 21 February 2012, Mr Pepper underwent arthroscopic surgery, removing osteophytes and trimming the frayed supraspinatus tendon.
27 He appears to have been off work through the balance of 2012. At that time, he was employed by Total Marine. He did return to work with that company, performing the same type of seafaring duties as performed by him prior to that surgery.
28 Post-surgery, he was seen on occasions by Mr Pullen. He was treated with physiotherapy and medication on a conservative basis.
29 Mr Pepper reported that for the twelve months or so following the surgical procedure, his symptoms improved. However, his evidence was that from that time (that is, early 2013), his symptoms have deteriorated.
30 In November 2012, Mr Pullen considered that, based on investigations and arthroscopy, Mr Pepper was suffering from a left shoulder impingement, secondary to subacromial and AC joint spurring. He considered that Mr Pepper had features of a rotator cuff tendinopathy, and that these symptoms had developed following the injury at work whilst in the employment of the defendant.
31 Mr Elder saw Mr Pepper on four occasions between June 2008 and October 2012. On the last of those occasions (about eight months post-surgery), he considered that Mr Pepper had had a successful outcome to decompression surgery, and that whilst the shoulder injury had been caused by his employment with the defendant, Mr Pepper appeared to have made “essentially a full recovery”.
32 Mr Elder was, at that time, of the view that Mr Pepper had a capacity for his pre-injury employment as a butcher; that he had no incapacity; that he could work full hours; that he needed no treatment, and that his prognosis was excellent.
33 Mr Elder appears to base that conclusion at least partly on his understanding that Mr Pepper had been working off-shore “without restrictions or difficulties” from 2009. It is difficult to understand how he came to that conclusion.
34 In the latter part of 2011, Mr Pullen had noted that Mr Pepper had ongoing problems with his left shoulder. An MRI scan had been ordered in November 2011 and Mr Elder was aware of this. I do not consider that an MRI scan would have been ordered if Mr Pepper was having no difficulties with his shoulder.
35 Further, Mr Elder was also aware that Mr Pepper had undergone decompression surgery in February 2012. It is, in my view, extremely unlikely that Mr Pullen would have recommended such surgery or that Mr Pepper would have undergone such surgery unless his shoulder symptoms had been significant at that time.
36 Whilst it is clear that Mr Pepper has returned to work from the latter part of 2012, his evidence was that the work was very light. That is consistent with the history given to Mr Brownbill in January 2012, about a month prior to the surgery.[4] Mr Elder appears to have formed his own conclusion that Mr Pepper’s work involved “significant manual handling”. I accept Mr Pepper’s evidence that this was not the case.
[4]Defendant’s Court Book, page 54
37 For those reasons, I place little weight on Mr Elder’s conclusions as to Mr Pepper’s work capacity as a butcher.
38 In February 2013, Mr Kevin King, orthopaedic surgeon, took a history from Mr Pepper that he suffered constant pain, stiffness and weakness in the left shoulder of moderate severity. On examination, Mr King considered that there were classical signs of a moderately well-marked chronic rotator cuff injury with significant limitation of gleno-humeral and combined movements. He considered that Mr Pepper had suffered a rotator cuff injury to the cuff of tendons and ligaments surrounding the left shoulder. At that time, he noted that Mr Pepper had never improved to the stage where he could return to his old heavy butchering job. Notwithstanding, he reported that Mr Pepper was strongly motivated to work.
39 In August 2013, Mr Michael Shannon concluded that Mr Pepper had had surgery for subacromial bursitis and impingement and a partial rotator cuff tear. He thought he had had pre-existing degenerative change in the rotator cuff tendons and that the specific work incident aggravated those changes and materially contributed to the development of symptoms. He thought the restrictions to the shoulder would be permanent. He considered that the condition would be vulnerable to further injury.
40 Mr Pullen reported that he had seen Mr Pepper in late January 2015 and obtained a history from him that there had been significant improvement in left shoulder symptoms in the twelve months following the surgery but had developed recurrent pain. The history taken was that symptoms had recurred when he was pulling a mooring line at work (with an employer different to the defendant in this proceeding) and that he suffered a sudden onset of left shoulder pain, which had taken some time to settle. Despite time off work, he complained of ongoing left shoulder pain.
41 An MRI scan of Mr Pepper’s left shoulder taken on 25 March 2015 found moderate thickening of the subacromial bursa, including a bursal effusion anteriorly. On my reading of the radiologist’s report, there appears to have been no other significant findings. In particular, the finding was of no rotator cuff tear, with supraspinatus, infraspinatus and subscapularis tendons being intact. There was no focal labral tear or other lesion. These findings can be contrasted, at least to some extent, with the findings of outlet impingement and partial tear reported on the November 2011 MRI of the left shoulder.
42 In May 2015, Mr Stephen Doig, orthopaedic surgeon, reported that Mr Pepper’s diagnosis was one of partial thickness tear of the left supraspinatus tendon complicated by the clinical evidence of a frozen shoulder. At that time, he had no ongoing problems with his neck or low back. There was restriction of movement in his shoulder.
43 Mr Pepper’s treatment, since the surgical procedure of February 2012, has been conservative and mainly consisting of physiotherapy.
44 In April 2015, Mr Pullen opined that the long-term prognosis would depend on response to treatment. He reported that a more accurate assessment would be obtained after three to six months of non-operative treatment. I note that it is now some nearly three-and-a-half years since his surgical procedure and I accept that Mr Pepper’s complaints of constant pain in the shoulder are genuine.
45 I accept that in the incident of 6 October 2007, Mr Pepper suffered an injury to his left shoulder best described by Mr Pullen, Mr King and Mr Shannon as set out above.
46 Counsel for the defendant submitted that Mr Pepper had suffered a separate, discrete and significant injury to his shoulder in the course of employment in late 2014 with a different employer. Whilst I accept that he did suffer an exacerbation of symptoms at that time, motivating him to return to see Mr Pullen, I do not consider this reflects a fresh injury as such. I accept Mr Pepper’s evidence that he had continued to suffer from pain in his shoulder for some considerable time before then. I accept that the original injury left him vulnerable to further injury and the increase in symptoms in late 2014 is likely to be part and parcel of that original injury.
Consequences of injury
47 I found Mr Pepper to be a witness of credit. He did not appear to exaggerate his problems at any stage. His credit was not relevantly challenged.
48 I accept that since the accident, he has suffered from left shoulder pain to varying degrees. I accept that the consequences of the injury at present are:
(a) Significant pain on performing physical tasks with his left arm.
(b) A need to take regular medication in the form of Voltaren and Nurofen tablets.
(c) An inability to enjoy a variety of activities including playing the guitar for more than short periods, play golf with any regularity, enjoy trail-bike riding, swimming, diving, and fishing, as he had done before.
(f) Difficulty in lifting his young children.
(g) Difficulty in dressing in his overalls and hanging out clothes.
(h) An inability to use a push lawn mower without pain.
(i) An inability to perform his chosen career as a butcher.
49 It is this last matter that I consider to be the most telling consequence of Mr Pepper’s injury.
50 He had commenced an apprenticeship as a butcher in about 1987 and worked thereafter as a butcher up for some twenty years until his accident in October 2007. His unchallenged evidence was that it had been his long-term goal to continue working as a butcher and to take over Huon Valley Meats, a successful business owned by his uncle in Tasmania. I accept that, as a consequence of Mr Pepper’s injury, he has been unable to work as a butcher and the business was sold outside the family.
51 He has, on any view, had an excellent work ethic since school. In the past, whilst employed full-time by the defendant as a butcher, he often had a second job as a casual truck driver.
52 After his accident, he has effectively retrained himself and found appropriate light work in the seafaring industry. With his level of education, it is my view that most of his employment options would involve manual labour of one sort or another. He has indeed been fortunate to have obtained light work as a rating. Although he has difficulty with his shoulder, he has to date been able to cope with his light duties.
53 He appears to have done all he could to remain in the workforce and he is to be commended for that. He is properly described as stoic in putting up with what I accept is considerable pain and discomfort in order to continue in work. His work involves him being absent from home for significant periods.
54 The Court of Appeal has made clear that such a person should not be penalised in a claim of this kind for demonstrating such determination.[5]
[5]Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260 at paragraph 3; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 47
55 I do not consider it likely that Mr Pepper suffered a discrete and fresh injury in late 2014. His shoulder was vulnerable following the October 2007 injury and I accept that any exacerbation of his symptoms in the latter part of 2014 was, on the balance of probabilities, a consequence of the injury sustained in October 2007 in the course of his employment with the defendant.
56 Counsel for the defendant submitted that other injuries to Mr Pepper’s neck and lumbar spine which were not the subject of this application, would have prevented him from working as a butcher indefinitely regardless of the accident.
57 Whilst I accept that he does have some degenerative changes at the cervical and lumbar levels of his spine, there was no evidence that he had suffered symptoms of significance in either of those areas before the workplace injury of October 2007. There is no evidence that either injury had interfered with his work as a butcher before then. Whilst there was a possibility that such conditions may at some future stage have interfered with his career as a butcher, there is no evidence that this was likely. I do not consider that was probable.
Conclusion
58 Looking at the evidence as a whole, and the various consequences of injury collectively, I am satisfied that the pain and suffering consequences of Mr Pepper’s shoulder injury, when judged by comparison with other cases in the range of possible impairments or losses, are fairly described as being more than significant or marked, and as being at least very considerable. In particular, I accept that the injury has cost him his chosen career as a butcher.
59 It follows that I am satisfied that Mr Pepper, in the course of his employment with the defendant, suffered a “serious injury” as that term is defined in the Act.
60 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Mr Pepper to commence a proceeding claiming pain and suffering damages in respect of injuries suffered by him in the course of his employment with the defendant on or about 6 October 2007.
61 I shall hear the parties in respect of costs.
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