Philips v VWA
[2013] VCC 1764
•22 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-13-00061
| GREGORY BRYAN PHILLIPS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 October 2013 | |
DATE OF JUDGMENT: | 22 November 2013 | |
CASE MAY BE CITED AS: | Philips v VWA | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1764 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jatayilake v Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted to the plaintiff to institute common law proceedings in respect pain and suffering damages only
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Valiotis | Ryan Carlisle Thomas |
| For the Defendant | Ms S. Lean | Minter Ellison |
HER HONOUR:
Background matters
1 The various background matters to which the plaintiff deposed in his first affidavit sworn on 27 August 2012 are summarised in the following paragraphs.[1]
[1] Exhibit P1, Plaintiff's Court Book (PCB) 20-26
2 The plaintiff is 57 years of age and married with two adult children. He was educated to Year 11 level. Since leaving school the plaintiff has worked as a farm hand, painter with a local council, meat inspector (15 years), mechanic (for a few months), factory worker and as a labourer. Under cross-examination the plaintiff said he had completed a one week job placement as part of a TAFE certificate course in office administration and, at some stage, for a short time, he owned a milk bar.[2]
[2] Transcript (TN) 31
3 The plaintiff was employed as a labourer from 1 November 2001 by a company which manufactured timber windows, Dahlsens Building Centres Pty Ltd (the employer). As I understood his evidence, the plaintiff had also been employed as a labourer by the employer's predecessor.
4 The plaintiff deposed that his work with the employer was often heavy and demanding and, on a daily basis he was required to handle, carry and lift heavy windows and glass door units.
5 The plaintiff deposed that between June 2000 and December 2007 he suffered various worker-related injuries (to his wrist, eye and fingers) from which he recovered and, from time to time, in association with heavy lifting, he suffered pain in his right shoulder. During re-examination the plaintiff confirmed that these episodes had not require time off work or medical treatment.[3]
[3] TN 48
6 The plaintiff described an incident in the workplace on 29 May 2009 and its aftermath as follows:[4]
[4] PCB 22
"14. On or about 29th (May) 2009, three other workers and I were attempting to manually load a six panel door, about 6 metres long and weighing somewhere between 300 and 400 kg, on to a truck. The lift was heavy and awkward. In the course of this work I slipped and was trying to grab or hold onto the door, I felt pain and a pull pulling sensation in my right shoulder (the incident).
15. I continue to work but this time the pain did not go away. It was worse than any pain I had experienced in the past. The next day the pain in my shoulder was much worse. I found it difficult to move my shoulder and the pain was aggravated by any pushing or pulling movements.
16. My neck was also painful particularly when performing any work requiring turning or any stretching movement."
7 In this action the plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for injury arising out of or in the course of, or due to the nature of his employment with the employer.
8 Leave was sought under paragraph (a) of the definition of ‘serious injury’ to recover damages for pain and suffering only. Initially the plaintiff also sought leave in respect to impairment of his cervical spine. However, during final submissions his counsel confirmed that the application made under paragraph (a) only related to permanent serious impairment of the plaintiff's right upper limb.[5]
[5] Section 134AB(38)(b)
9 ‘Permanent’ refers to impairment of the right upper limb that is: “likely to last for the foreseeable future”.[6]
[6]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
10 The determination of whether this injury is 'serious' is assessed by reference to the consequences to the plaintiff of the impairment of his right upper limb, which would not meet the test unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments, 'fairly described as being more than significant or marked and as being at least very considerable'.[7]
[7] Section 134AB(38)(c)
11 In July 2013 a treating general practitioner, Dr Haddad, diagnosed major depression as a consequence of the plaintiff’s physical injuries and subsequent incapacity.[8] Relevantly, section 134AB(38)(h) precludes consideration of any psychological or psychiatric consequence of the injury when assessing the consequences of impairment or loss of function of the plaintiff's right upper limb.
[8] PCB 39
The dispute
12 In this application, the defendant conceded compensable injury only in respect to the plaintiff’s right shoulder. The plaintiff said he was paid weekly payments of compensation, which were terminated in March 2012.
13 By letter dated 18 May 2012 the insurer notified acceptance of the plaintiff's claim for impairment benefits assessed by Associate Professor of Surgery, Dr McInnes in respect to right shoulder and neck injury.[9] Relevantly, he assessed an 8% whole person impairment of the right shoulder.
[9] Exhibit P3
14 The defendant submitted that this was a 'disentanglement' case. Generally speaking, the Court applies a two-step approach to an application in which this issue is raised.[10]
[10] See JatayilakevToyota Motor Corporation Australia Ltd (2008) VSCA 167; MeadowsvLichmore Pty Ltd [2013] VSCA 201, [19]
15 The first step is to determine whether there exists a substantial organic basis for the pain and suffering consequence of right shoulder injury on which the plaintiff relies.
16 If the first question cannot be answered in the affirmative the plaintiff must 'disentangle' the physical contributions to his pain and suffering consequence from the psychological in order to satisfy the Court that the pain and suffering consequence attributable to his right shoulder injury satisfies the statutory test.
17 In this case, some pathology was identified in the results of an ultrasound obtained on 4 June 2009 (namely a supraspinatus tendon heterogeneous with a linear tear, a slight narrowing of the acromioclavicular joint and thickening of the bursa, without evidence of restricted movement[11]). However, the results of a later MRI scan obtained on 22 December 2009, showed an intact supraspinatus tendon with no tear or tendinopathy, although there was evidence of distortion in the acromial shape.[12] Other than “minimal focal thinning of the supraspinatus tendon”, repeat ultrasounds performed on 11 February 2010 and 19 April 2011 respectively also found no evidence of any tear to the rotator cuff.[13]
[11] Defendant’s Court Book (DCB) 16
[12] PCB 62-63
[13] DCB 84-85
18 Clinical findings of impingement and restricted movement, discussed in greater detail shortly, are, nonetheless, consistent with unresolved injury impairing, particularly the right shoulder. After considering the medical evidence and the pain and suffering and loss of enjoyment of life consequences alleged, I was satisfied on the balance of probabilities that there existed impairment of the right shoulder which was not explained to any significant degree by psychological factors.
19 The defendant further contended that, in this case, the pain and suffering consequence of any physical impairment of the plaintiff's right upper limb did not meet the test for serious injury.
The evidence
20 The plaintiff gave evidence. He was cross-examined at length. The extracts tendered from the Plaintiff's Court Book comprised his two affidavits, sworn on 27 August 2012 and 9 September 2013 (as amended)[14] respectively, the affidavit of his wife, Denise Jaqueline Phillips (her evidence was not challenge through cross-examination), medical reports from treating doctors, general practitioners, Dr Satyadharma and Dr Haddad, the medical reports of medico-legal specialist, orthopaedic surgeon, Mr Kossmann and the results of MRI scans obtained in respect to the plaintiff's neck and right shoulder on 22 December 2009.[15]
[14] TN 29. As to paragraph 14 of the first affidavit the date was amended to 29 May 2009 and, as to paragraph 30 of the second affidavit the plaintiff told the court that he last mowed the lawns, probably two years earlier.
[15] Exhibit P1
21 The plaintiff tendered from the Defendant's Court Book two reports, the impairment assessment undertaken by Dr McInnes[16] and the report of General and Trauma Surgeon, Mr Gale dated 27 October 2009[17] and he relied on the only report of orthopaedic surgeon, Mr Simm. The plaintiff also tendered the letter from the insurer indicating acceptance of liability in respect to the impairment claim for both the right shoulder and neck.[18]
[16] Exhibit P2
[17] Exhibit P4
[18] Exhibit P3
22 The extracts from the Defendant's Court Book tendered by the defendant comprised medico-legal reports of Mr Gale (dated 15 September 2009), orthopaedic surgeons, Professor Marshall and Mr Simm, Senior Consultant Surgeon, Mr Scott and psychiatrist, Dr Das, medical reports from treating psychologist, Mr Huson and from treating neurosurgeon, Mr Timms (the latter addressed to general practitioner, Dr Fernando and dated 8 April 2010), the results of the ultrasound investigation on 11 February 2010 and 19 April 2011 and a copy of the Worker's Claim Form dated 11 June 2009.[19] The latter indicated an initial claim in respect to right shoulder injury only.
[19] Exhibit D3
23 The defendant tendered from the Plaintiff's Court Book the report of treating pain specialist, Dr Lovell[20] and a further report of Mr Timms dated 3 May 2013.[21] Lastly, the defendant tendered extracts from the clinical records kept by South Gippsland Family Medicine Clinic in respect to the plaintiff’s treatment between 5 December 2007 and 10 September 2013.[22]
[20] Exhibit D1
[21]Exhibit D2
[22]Exhibit D4
24 The plaintiff’s credit was not directly challenged.[23] Where they have commented on this, the doctors have accepted the plaintiff as being genuine in his complaints of ongoing right arm symptoms. Indeed, my impression of the plaintiff was that he was mostly a helpful witness. On occasion, however, I concluded that the plaintiff’s evidence alone was not a sufficient basis for determining a particular fact in issue. One such occasion involved his evidence at hearing concerning the level of his pain and the frequency with which he currently used the prescription painkilling medication, Panandeine Forte. This evidence warranted closer scrutiny of the documentary material and the evidence overall.
[23]TN 5
The treatment of the right shoulder injury and medical assessment
25 Following the incident, the plaintiff first presented for treatment at the South Gippsland Family Medicine Clinic on 2 June 2009. Examination by general practitioner, Dr Satyadharma, revealed limited right shoulder movement in all directions, evidence of impingement and tenderness on the right side of the plaintiff's back.[24] He diagnosed right rotator cuff injury and right back soft tissue injury, he prescribed painkilling medication, Panadeine Forte and certified the plaintiff unfit for work.
[24]Exhibit D4 and PCB 35
26 As mentioned, the earliest ultrasound investigation of the right shoulder on 4 June 2009, among other things, indicated a supraspinatus tendon which was heterogeneous with a linear tear and, on 9 June 2009, the general practitioner referred the plaintiff for physiotherapy.
27 It appears that at some stage in June 2009 the plaintiff returned to light duties. This involved working in the employer's office for one day, before the plaintiff was transferred to ticketing and light delivery duties. The plaintiff deposed that the pain in his shoulder immediately worsened after being sent to work on the factory floor, where he had difficulty avoiding bending and lifting.[25]
[25] PCB 23
28 According to the plaintiff he was unable to continue his employment duties due to pain in his right shoulder and neck and he left his employment on or about 1 September 2009.[26] He currently receives a NewStart allowance.
[26] PCB 23
29 When, at the request of the insurer, he was seen by General and Trauma Surgeon, Mr Gale on 11 September 2009, among other things, the plaintiff reported a change of duties some four weeks earlier. He had, he claimed, resigned because prolonged use of hand-held tools, a battery-powered drill and pneumatic staple gun, had aggravated his right shoulder symptoms.[27]
[27] DCB 2
30 The salient features of this early report and Mr Gale's supplementary report dated 27 October 2009 are summarised as follows:[28]
[28] DCB 1 to 6 and Exhibit P4
· in Mr Gales opinion, the plaintiff had suffered injury to the rotator cuff structures of the right shoulder girdle as a result of the incident, although, having viewed the films of the ultrasound, he could not tell whether the supraspinatus tear was partial or full thickness;
· the specialist clearly agreed that any requirement for the right hand dominant plaintiff to use the equipment described had been inappropriate;
· the plaintiff reported significant symptomatic improvement in the two months preceding the examination;
· clinically the plaintiff had regained full range of shoulder girdle movement, but still experienced mild discomfort anteriorly. Moreover, the plaintiff reported that repetitive tasks and repetitive lifting and pushing aggravated his symptoms;
· the plaintiff was not taking regular pain relieving medication;
· the plaintiff's condition was not stabilised;
· in this specialist’s opinion, the plaintiff should cease physiotherapy in the weeks following the examination on 11 September 2009 and persist with a home-based exercise program. However, should his condition deteriorate a cortisone injection into the subacromial bursa could provide symptomatic benefit;
· the plaintiff was not fit for his pre-injury employment duties which had required a lot of heavy lifting and moving completed windows and doors, although he was fit for suitable employment subject to restrictions on repetitive use of his right upper limb, lifting weights above 10 kg or performing duties that required the use of the right hand above the level of the shoulder;
· based on the plaintiff's description of his pre-injury work duties, Mr Gale felt there was a real prospect that the nature of the injury to the shoulder could preclude the plaintiff from ever returning to these duties;
· in Mr Gale's opinion the injury to the right shoulder girdle was a significant injury which could leave the plaintiff with permanent physical incapacity and, in the long term unable to return to his unrestricted pre-injury employment duties;
· there was no evidence indicative of any non-organic component complicating the clinical picture.
31 Accordingly, by September 2009, clinically there had been symptomatic improvement in the right shoulder. The plaintiff, nonetheless, reported ongoing symptoms caused by particular activities involving the use of his dominant right upper limb. Importantly, within a few months of his injury, Mr Gale was already warning that, by reason of the work-related damage to the shoulder, the plaintiff would probably never be capable of returning to his physically demanding pre-injury duties.
32 As mentioned this leave application was eventually confined to the right shoulder injury. However, under cross-examination the plaintiff claimed that, he recalled experiencing neck pain very shortly after the incident, about which he had also complained to the general practitioner. This was despite his failure to refer to a neck injury in the claim for compensation submitted on 11 June 2009[29] ("No, because the shoulder was the main thing"[30]) and the failure of doctors to record neck symptoms in the earlier clinical records.[31]
[29] DCB 84-85
[30] TN 42
[31] TN 41-42
33 It was not clear from the evidence before me (which included some of the earlier clinical records) what symptom or constellation of symptoms prompted the general practitioner to order CT investigation of the plaintiff's cervical spine on 15 October 2009 and MRI investigation of both the neck and shoulder in December 2009, the latter reportedly to investigate right shoulder and neck pain following work injury. However, I infer from pursuit of these investigations and the subsequent referral to neurosurgeon Mr Timms (who in April 2010 advised the general practitioner that the plaintiff had reported immediate pain around his shoulder and neck region with the development of symptoms down his forearm and into his hand over time[32]) the treating doctor was seeking to exclude the possibility that work-related injury to the cervical spine was also a cause of persistent pain and disability reported since the incident.
[32] DCB 81
34 The reported results of the CT scan obtained on 16 October 2009 evidently indicated disc degeneration and some encroachment on the right C5/6 and C6/7 foraminae.[33]
[33] DCB 25
35 MRI investigation of the cervical on 22 December 2009 reported spondylitic bulging and foraminal nerve root compression on the right side of the cervical spine. However, MRI of the right shoulder obtained on the same date, while noting contact of the supraspinatus at the level of the AC joint (without contour or muscle signal abnormality) by the downward projection of the AC joint, had not revealed significant shoulder pathology.[34]
[34] PCB 62-63
36 The plaintiff was examined by Professor Marshall twice, on 19 January 2010 and, five months later, on 19 May 2010, at the request of the insurer.[35] On each occasion the specialist appears to have had access to a wide selection of materials including reports from treating general practitioners and Mr Gale, the radiological imaging and reports (but not the result of the repeat ultrasound obtained by a general practitioner on 11 February 2010), physiotherapy reports and progress medical notes dated June, July and August 2009.
[35] DCB 9-35
37 It appears that when re-examined in May 2010, the plaintiff also provided the orthopaedic surgeon with a copy of the letter dated 8 April 2010 from neurosurgeon, Mr Timms to the plaintiff’s general practitioner, Dr Fernando. The advice given in this letter appears to have shifted the focus back to the plaintiff’s right shoulder as the likely cause of ongoing symptoms affecting the plaintiff's right upper limb.
38 It is convenient to deal with Mr Timms’ evidence before summarising Professor Marshall’s findings. There was one examination only. Mr Timms' evidence is found in both his letter to Dr Fernando, dated 8 April 2010 and a later more detailed report to the plaintiff's solicitors, dated 3 May 2013.[36]
[36] DCB 81 and Exhibit D2
39 In April 2010, other than some mild weakness in the right arm, Mr Timms reported normal range of movement of the plaintiff's cervical spine and shoulder. In his opinion the reported resolution of symptoms down the plaintiff's forearm into his hand, particularly some numbness and tingling, likely indicated significant improvement in the foraminal disc bulges at the C5/6 and C6/7 levels.
40 Notably, Mr Timms concluded that as a consequence of the incident the plaintiff had suffered a cervical spine injury as well as a rotator cuff tendon tear, both rendering the plaintiff unfit for his pre-injury duties.
41 The defendant relied on this and other clinical evidence of normal movement in the shoulder and neck reported in early 2010. Nevertheless, what is also clear from Mr Timms' evidence is that, during the assessment, the plaintiff had emphasised ongoing symptoms affecting his right shoulder, namely tenderness and stiffness in his right shoulder in association with repetitive use and tenderness around the base of the scapular. If these symptoms were not fully resolved by physiotherapy, Mr Timms advocated steroid injection and, if the symptoms persisted, review of the shoulder by an orthopaedic surgeon.
42 The salient features of Professor Marshall's reports are summarised as follows:
· despite some earlier improvement in the condition of his shoulder (also indicated by Mr Timms’ clinical findings in early April), by May 2010 the plaintiff’s condition had deteriorated. He reported ongoing shoulder symptoms, resumption of physiotherapy, attended twice weekly and use of Panadeine Forte as required;
· on re-examination, on 19 May 2010 this specialist noted diminished range of movement of the right shoulder with impingement symptoms (the latter had not been evident when examined in the January 2010) and an inability to "get the right arm to the loin on reaching behind" the plaintiff's back;[37]
[37] DCB 32
· the specialist diagnosed a work-related shoulder strain injury to the right arm and subsequently left shoulder symptoms (the reference to the left shoulder evidently referred to symptoms noted in January 2010) with persisting impingement and pain particularly in the right shoulder;
· having deteriorated since the earlier examination, the plaintiff's condition was, nonetheless stable. However, in view of his persistent symptoms, Professor Marshall also recommended referral for orthopaedic opinion to consider further injection or surgical treatment;
· the plaintiff was not fit for his pre-injury work and hours. He was, however, fit for modified duties with minimisation of lifting strain to the right arm over 5 kg and restriction of overhead work. Professor Marshall advocated delaying further review for 12 months;
· no psychological factors were identified by this specialist.
43 Accordingly, by May 2010 Mr Gale, Mr Timms and Professor Marshall had each recommended consideration of steroid injection should the right shoulder symptoms persist.
44 If there was any doubt that the shoulder injury was the likely source of the ongoing pain and restriction reported by the plaintiff, arguably this was resolved by the assessment undertaken by pain specialist, Dr Lovell on 15 July 2010 (also on referral by Dr Fernando). In short, pain blocking procedures administered by Dr Lovell indicated to him that the plaintiff was probably experiencing shoulder joint not cervical related pain.[38] Based on the plaintiff’s later reports to doctors, the injections had not resolved the symptoms and pain. The injections were, however, diagnostic of a likely unresolved right shoulder injury.
[38] Exhibit D1
45 The salient features of Dr Lovell’s report are summarised as follows:
· the early ultrasound evidence of a heterogeneous linear tear of the supraspinatus tendon, of itself, was not diagnostic because many people in middle-age would appear to have a tear on ultrasound with no particular clinical significance. However, in this case Dr Lovell did not exclude there being some connection with the shoulder pain reported. Accordingly, the pathology found was not determinative of the cause of pain and restriction. This no doubt in part helps explain why doctors have consistently diagnosed unresolved right shoulder injury despite the findings in later radiological studies;
· clinical examination revealed some tightness in the right upper trapezius area with left ‘sidebending’, pain in the saddle of the shoulder region and when reaching, restriction on reaching behind the plaintiff’s back (a finding also reported by Professor Marshall) and some crepitus in the shoulder joint. Having identified tender points Dr Lovell apparently administered local anaesthetic injections to block all pain and allow the plaintiff to move normally into full abduction without experiencing any significant pain;
· he attributed the plaintiff's shoulder and neck related symptoms to a sudden strain in the plaintiff's right shoulder as a result of the incident;
· the pain specialist was satisfied that the plaintiff's symptoms were directly work-related.
46 As was submitted on behalf of the defendant, this specialist and a number of the other specialists probably never saw the results of the later ultrasound imaging obtained in 2010 (of the right scapula region) and in 2011 (of the right shoulder), indicating as they did, no abnormalities and intact rotator cuff tendons. However, the point that needs to be made at this juncture is that, by 2010, the earlier ultrasound and MRI studies, the clinical findings (as for example symptoms consistent with ongoing impingement and evidence the plaintiff could not reach behind his back) and the results of the pain blocking procedure suggested ongoing problems in the structures of the shoulder and indicated a likely organic basis for persistent right shoulder pain and symptoms since the incident.
47 In summary then, nearly a year after the incident the defendant’s specialist, Professor Marshall found that, the plaintiff was still suffering from the effects of an unresolved right shoulder strain injury. This injury, he said, required ongoing treatment and rendered the plaintiff unfit for duties other than modified duties to which restrictions also applied. Moreover, by mid-July 2010, treating pain specialist, Dr Lovell had effectively excluded injury to the neck as a likely ongoing source of pain and restriction in the right upper limb. He too diagnosed a right shoulder strain injury.
48 The plaintiff underwent medico-legal specialist examinations at the request of the insurer in the latter part of 2011, Senior Consultant Surgeon, Mr Scott on 20 September 2011[39] and psychiatrist, Dr Das on 21 November 2011.[40]
[39] DCB 36-47
[40] DCB 50-58
49 Mr Scott had access to the report of the ultrasound obtained on 4 June 2009 but not, it seems, the MRI investigations. However, as his report shows, Mr Scott also had access to Professor Marshall's reports from which, among other things, he apparently understood that the MRI study of the right shoulder may not have shown any abnormality. His evidence, which includes Mr Scott's supplementary report dated 10 November 2011[41] is summarised as follows:
[41] DCB 48-49
· the plaintiff was still undergoing physiotherapy, he had attended a gymnasium for about three months once or twice a week until 2011 and he took Panadol for mild pain and Panadeine Forte, 2 to 4 tablets per day when pain was severe. This evidence suggested to me that by late 2011 strong pain killing medication was still required, though not daily;
· activities such as gardening, driving, performing leatherwork, using a computer mouse or writing for sustained periods caused right shoulder girdle pain. The plaintiff continued to experience a loss of normal range of movement and difficulty getting his right arm behind his back (as mentioned, a limitation earlier noted in the clinical findings recorded by Professor Marshall and Dr Lovell during 2010) and he reported recurring tingling in the little and ring fingers, particularly in conjunction with shoulder pain;
· examination revealed a reduced range of movement of the right shoulder and discomfort to the extremes, particularly with internal rotation and abduction, without evidence of any “classical impingement”;
· Mr Scott diagnosed an unresolved work-related right rotator cuff lesion and features suggestive of intermittent cervical nerve root irritation (probably at the C8 level), the latter causing the tingling in the plaintiff's hand. This and the evidence of other medico-legal specialists discussed shortly, suggests that, despite the symptomatic improvement recorded by Mr Timms in April 2010, the cervical spine was again contributing (albeit intermittently) to symptoms such as tingling in the fingers of the right hand;
· while the current treatment was appropriate, where, as in this case, there was definite evidence of a reduced range of movement of the shoulder joint, Mr Scott advocated further evaluation of the plaintiff's condition and up-to-date MRI study. The point that needs to be made at this juncture is that, despite the reported result of the earlier MRI study of the right shoulder, in September 2011, Mr Scott was satisfied the incident had likely caused a shoulder injury that was significant and persistent, as well as injury to the plaintiff's neck and these injuries were unresolved;
· Mr Scott considered the plaintiff unfit for pre-injury duties and hours. He, nevertheless, accepted that the plaintiff had a capacity for light duties on a part-time basis, subject to restriction on duties involving repetitive or forceful movements of the right upper limb or requiring use of the full range of movement of the right upper limb. I understood from reading each of the reports submitted by Mr Scott that he considered both injuries were interfering with the plaintiff's capacity to work and contributed to the restrictions noted;
· while Mr Scott thought an associated anxious, nervous or frustrated reaction may be magnifying the plaintiff's overall presentation, Mr Scott nonetheless believed that: "the major ongoing impairment relates to the organic injury sustained at the time of the accident".[42]
[42] DCB 44
50 As far as I can tell, this was the first indication by a doctor that psychological factors may be contributing to the plaintiff’s presentation. Mr Scott’s evidence, nonetheless, indicated that he considered unresolved organic injury to be the major cause of the pain and impairment described by the plaintiff.
51 The plaintiff was assessed, within a couple of months of Mr Scott's examination on 21 November 2011, by psychiatrist, Dr Das. He found no evidence of a diagnosable psychiatric condition or psychiatric factors affecting either the plaintiff's recovery from the work-related injury or his work capacity.[43]
[43] DCB 55-56
52 This is not to deny that the plaintiff had a psychological response to his predicament. For instance, during psychiatric assessment the plaintiff had communicated his uncertainty about the state of his shoulder condition as well as concern about his future job prospects. Furthermore, the extracts from the clinical notes kept by the South Gippsland Family Medicine Clinic show that in March 2010 the plaintiff had reported low mood and stress in association with his disability and in response to the insurer’s handling of his case. Under cross-examination the plaintiff agreed he felt depressed, yet denied this interfered with his day-to-day activities.[44]
[44] TN 38
53 In a report dated 24 January 2012, addressed to the plaintiff's solicitors, treating general practitioner, Dr Haddad, among other things, advised that, as a result of right shoulder rotator cuff injury, with periods of remission, the plaintiff was suffering from permanent restriction of movement and pain in his right shoulder.[45]
[45] PCB 37-38
54 There was some discussion at hearing about whether this general practitioner (and, as mentioned, a number of other doctors) had also considered the results of the ultrasound investigations additional to the first ultrasound, the only radiology indicating right shoulder rotator cuff lesion.
55 All of the radiology obtained was ordered by a treating general practitioner from the South Gippsland Family Medicine Clinic. No doubt, this was available to Dr Haddad, the current treating general practitioner, when he prepared his reports. I have inferred from this evidence that Dr Haddad was probably aware of the results of subsequent radiological investigations in respect to the plaintiff's right shoulder when he reported as he did on 24 January 2012 and, later, in 2013.[46]
[46] PCB 41-42
56 I have already mentioned in passing Dr McInnes' impairment assessment in April 2012, specifically as it related to the plaintiff's right upper limb.[47] At the time, the plaintiff reported constant pain, worsened by all movements, with particular trouble pushing and pulling anything of any considerable weight and in raising the right arm above shoulder height.
[47] DCB 59-64
57 Among other things, Dr McInnes recorded some tenderness in the region of the scapula posteriorly, but not in the region of the shoulder, some reduction in movements of the right shoulder (and neck) and, (he said) somewhat unusually for a right handed individual, evidence that the plaintiff's right arm was weaker than his left arm. He, however, found no neurological abnormality in either arm.
58 Relevantly, as part of the impairment assessment, Dr McInnes considered the results of the ultrasound obtained on 4 June 2009 and the MRI study obtained on 22 December 2009, as well as reviewing the opinions reported by the three specialists, Mr Timms, Professor Marshall and Mr Scott. He concluded that these confirmed both a diagnosis of degenerative disease of the cervical spine and a rotator cuff lesion involving a linear tear of the supraspinatus tendon.
59 As mentioned, in a recent report to the plaintiff's solicitors dated 8 July 2013, Dr Haddad advised that the plaintiff had developed major depression as a consequence of his physical injuries and subsequent incapacity.[48] The plaintiff's psychological condition, he said, was due to shoulder and neck injury and limited the plaintiff’s work capacity to 3 hours per day. Without identifying the activities involved, the doctor further opined that the plaintiff's psychological incapacity precluded and restricted him from social and recreational activities.
[48] PCB 39-40
60 Earlier clinical notes suggest that, in the past, the plaintiff had declined treatment of any psychological symptoms. This evidence notwithstanding, I was not satisfied that Dr Haddad’s statement that the plaintiff had suffered depression since sustaining his injuries could be justified, particularly given the clinical notes and medical evidence already summarised.
61 As we now know, Dr Haddad referred the plaintiff to psychologist Mr Huson, he said, to help him deal with depression and pain. As the plaintiff told the Court under cross-examination, he was no longer receiving counselling because, in his words: "It was not deemed to be necessary by the insurance company".[49] I understood this to mean that the defendant had ceased paying for this therapy.
[49] TN 39
62 In any event, in a report dated 5 September 2013, addressed to the general practitioner, Mr Huson advised that the counselling undertaken had reduced the level of the plaintiff's anxiety, depression and pain impact.[50]
[50] DCB 82-83
63 In Mr Huson's opinion, organic factors (shoulder pain) and psychological factors (depression) were contributing to pain levels and to the plaintiff's reportedly low libido. The report was silent on whether psychological factors also interfered with the plaintiff's work capacity or other activities.
64 In September 2013, Dr Haddad considered the plaintiff unfit for his pre-injury duties by reason of permanent right shoulder impairment. After undergoing vocational assessment, he was, so the doctor also said, fit for suitable alternative employment.
65 At the time of making his January 2012 report, Dr Haddad had not identified the nature and scope of the alternative employment he thought his patient was fit to undertake. However, as I understood Dr Haddad’s final report in September 2013, in his opinion there was likely permanent physical impairment of the plaintiff’s right shoulder and, were suitable employment available, this should be restricted to part-time work starting with three hours each day in order to test the plaintiff’s physical capacity. This evidence suggested to me that, some 4½ years after the accident, by reason of the right shoulder injury, Dr Haddad could not be confident that the plaintiff was physically capable of a return to full-time (presumably non-labouring) alternative employment.
66 In September 2013 Dr Haddad noted further that the plaintiff had become socially withdrawn due to pain and restricted mobility and he had reported difficulties at home with personal hygiene and shopping. I took the latter to be referencing the effects of physical pain.
67 Presumably in response to being questioned about this, Dr Haddad, advised that he could not comment on whether psychological or psychiatric factors were contributing to the plaintiff's pain management. As mentioned, Dr Haddad had earlier expressed his view that depression, resulting from the physical injuries suffered, was interfering with social and recreational activities because the plaintiff spent most of his time at home. This observation, coupled with the comments made in his most recent report, suggested to me that Dr Haddad viewed depression as secondary to pain and disability generated by the right shoulder injury which was causing the pain management issues reported. The general practitioner could not, as he said, comment on whether psychological factors also contributed to pain management.
68 The treating psychologist’s evidence, nevertheless identified some likely interaction between psychological factors and the plaintiff’s experience of pain, if one allows for Mr Huson’s report that therapy had helped reduce the level and impact of pain (by 0.5% and 5% respectively). However, accepting for the moment that, as reported, therapy had also led to a reduction in the level of the plaintiff’s anxiety and depression (by 24% and 4 points respectively), any contribution made by psychological factors to the consequences identified, namely withdrawal from social and recreational activities, had probably also been reduced by therapy.
69 In short, while depression probably was, as the psychologist reported, contributing to the plaintiff staying at home and to his lowered libido, his evidence did not suggest that psychological factors explained to any significant degree the clinical findings made in respect to the right upper limb or the reports of persistent pain and disability over a number of years.
70 In this proceeding, the plaintiff relied on two reports submitted by orthopaedic surgeon, Mr Kossmann following medical assessment at the request of the plaintiff's solicitors in October 2012 and in August 2013.[51] Notably, having viewed the imaging, Mr Kossmann was well versed in the ultrasound and MRI findings (no significant shoulder pathology was detected) in respect to the right shoulder in 2009. As with other specialists, he had knowledge (in his case direct) of the MRI imaging but not of the results of the further ultrasound investigations in 2010 and 2011.
[51] PCB 46-58
71 In these circumstances, I was not satisfied the failure to consider the results of the later ultrasound investigations undermined the efficacy of any of the specialist opinion (including that of Mr Gale, Professor Marshall and Dr Lovell), which also took account of their overall clinical assessment. Other than Mr Simm, whose report I discuss shortly, each specialist reporting between 2009 and 2013 has diagnosed unresolved work-related injury to the right shoulder, irrespective of whether they have also attributed the earlier radiological evidence of damage to the rotator cuff to the incident.
72 The salient features of Mr Kossmann’s reports are summarised as follows:
· during each examination the plaintiff reported right shoulder pain, exacerbated by activity or as a result of the type of activity performed. He also reported requiring rest breaks of 15 minutes after approximately one hour’s driving. In August 2013, the plaintiff complained that right shoulder mobility was more restricted;
· on re-examination in August 2013, consistent with the complaint made during the assessment, Mr Kossmann found a reduction in the plaintiff's right shoulder movements and noted that the plaintiff had difficulty in reaching the back of his head and his lumbar spine. I note that, despite any periods of reported improvement, the latter restriction in reaching behind the plaintiff’s back has persisted since first recorded by Professor Marshall in May 2010;
· both in October 2012 and in August 2013, the specialist diagnosed work-related pain and movement restrictions in the right shoulder on the basis of a tear in the supraspinatus tendon and pain and restriction of cervical spine on the basis of multiple disc bulges at the C3/4, C5/6 and C6/7 levels with consecutive foraminal nerve root compression on the right side. Notably, in August 2013, Mr Kossmann was also aware the plaintiff was then undergoing therapy for depression;
· the plaintiff could require further treatment or physiotherapy, possibly hydrotherapy and a trial of acupuncture in the treatment of his cervical spine condition;
· with regard to the right shoulder injury, the specialist thought, the plaintiff could profit from further physiotherapy and investigation (clearly the latter could involve, but was not limited to further radiological investigation) and treatment by a shoulder specialist. Mr Kossmann foresaw the use of pain and anti-inflammatory medication and possibly acupuncture for the plaintiff’s right shoulder injury, possibly for the rest of his life. Under cross-examination, it was suggested to the plaintiff that he was resistant to obtaining further treatment. For instance, in September 2013, Dr Haddad reported that the plaintiff was reluctant to undergo further treatment, specialist review or rehabilitation and was hesitant to move his right arm due to the severity of his pain.[52] As I understood the responses given, the plaintiff had not pursued referral to an orthopaedic surgeon for further treatment because he said Mr Kossmann had indicated that surgery was not an option. However, the plaintiff agreed that he had not pursued acupuncture ("There's no acupuncturist in our area"[53]) or other treatments such as hydrotherapy. The plaintiff did, nevertheless, indicate that he tried to mobilise his arm with light weeding in the garden for maybe 10 minutes at a time and by performing flexing/stretching exercises with his arm 2 to 3 times a day. The impression I had after hearing this and reading the other evidence, was that the plaintiff probably was, as the general practitioner had observed, somewhat resistant to undergoing further investigation[54] and certainly not keen on further injections which, as mentioned, he said had not been helpful;
· both due to significant changes in the plaintiff's cervical spine and pain and restricted movement in his right shoulder, Mr Kossmann considered the plaintiff unfit for his physically demanding pre-injury duties. Moreover, having worked all his life in physically demanding duties, the plaintiff was, Mr Kossmann concluded, totally incapacitated for work. He was the only doctor to so find;
· the injuries described restricted the plaintiff in respect to his social, domestic and recreational activities (gardening and his former sporting activities, about which I will say more shortly, were two examples given).
[52] PCB 42
[53] TN 46
[54] TN 46-47
73 Mr Simm was the last of the medico-legal specialist to report, having examined the plaintiff at the request of the defendant's solicitors on 24 July 2013.[55]
[55] DCB 66-74
74 At the time of making his only report, Mr Simm had access to the reports of Dr Lovell (and his clinical notes) and Dr Haddad (24 January 2012 and the South Gippsland Family Medicine Clinic progress notes), the first of Mr Kossmann's reports, Mr Timms' April 2010 letter to the general practitioner and his clinical records and excerpts from physiotherapy notes. He also had the reports received following the 2009 radiological investigations.
75 After viewing the MRI imaging, Mr Simm indicated his acceptance of the radiologist's findings in respect to right shoulder. As to the changes shown in the cervical spine, he considered these “mild” and likely common in the general population. Mr Simm, nonetheless, accepted that these changes, while not predictive of pain, were a potential source of pain. He appears to have concluded that the tingling and altered sensation affecting the fingers of the plaintiff's right hand was organically based (albeit "mild ulnar neuritis with some atypical signs"[56]) but not evidence of radiculopathy.
[56] DCB 70
76 Mr Simm's assumption that cervical symptoms and symptoms extending into little and ring in the right hand were not evident until November 2009 is mistaken. As mentioned, the CT scan of the plaintiff's cervical spine, ordered by a general practitioner on 15 October 2009,[57] the later MRI investigations ordered by the same general practitioner in December 2009 and referral to neurosurgeon, Mr Timms suggest a likely earlier concern that the incident had caused injury to the plaintiff's cervical spine, additional to the rotator cuff injury.
[57] DCB 25
77 However, following Mr Timms' report to the general practitioner in April 2010, the focus of ongoing investigation and treatment of pain and restricted movement in the right upper limb, shifted back to the right shoulder.
78 In any event, the salient features of Mr Simm's report are summarised as follows:
· the plaintiff reported that his right arm was too painful to exercise and he took Panadeine Forte for pain, up to 6 to 8 tablets per day, although there were days when he did not take this medication. The plaintiff also said that he supplemented Panadeine Forte with Panadol, up to 4 tablets at a time for severe pain;
· consistent with the evidence of the psychologist, the plaintiff reported that the referral to the psychologist had been helpful in dealing with pain and emotional issues;
· the plaintiff described constant pain varying from 3/10 to 9/10 on a visual pain scale, with severe pain occurring at night in the region of the right trapezius and pectoral muscles and right shoulder blade, possibly 2 to 3 nights per week. He also described pain and tenderness over the point of the right shoulder with pain extending into the proximal aspect of the upper arm. The plaintiff reported pain at the base of his neck aggravated by neck movement and tingling and numbness, mostly in the medial two digits of the right hand, but no pain radiating down the right arm;
· on examination of the right shoulder Mr Simm found no evidence of muscle wasting or winging of the right scapula, restriction in flexion and abduction with "quite a marked pain response after demonstrating these movements"[58] (as submitted on the plaintiff's behalf, this response was also consistent with movement of the limb having caused physical pain), an inability to improve the range of forward elevation with passive assistance from the left hand, reduced external and internal rotation with some pain and reduced adduction and extension. Mr Simm also found some reduction in strength on resisted movements of the rotator cuff which he attributed to a general pain response. Notably, testing of internal rotation of the elevated arm was, Mr Simm said, "weakly positive for subacromial impingement";[59]
[58] DCB 70
[59] DCB 70
· while accepting that the mechanism of injury had the potential to injure both the shoulder and cervical spine, based on the absence of early clinical references to the neck and the results of Dr Lovell’s testing in 2010, Mr Simm rejected any involvement of the neck. Whether or not this finding was justified having regard to all of the evidence (particularly the assessment of injury-related impairment in both the right shoulder and neck in 2012), Mr Simm nevertheless concluded that the incident had caused injury to the right shoulder or shoulder girdle with painful limitation of shoulder movements;
· despite having found mild subacromial impingement, Mr Simm was not satisfied that this provided evidence of pathology confirmatory of any intrinsic condition of the shoulder. This was because the clinical picture he found was one of painful restriction rather than painful arc of movement and the MRI scan, he said, had returned a normal result;
· in circumstances where he was not able to establish a definite diagnosis, Mr Simm opined that the plaintiff had features of what he described as cervicobrachial pain syndrome (presumably a pain syndrome affecting the neck and shoulder/arm) and some features of persistent, mild subacromial impingement secondary to a shoulder strain injury. As submitted on behalf the plaintiff, the latter finding evidenced unresolved work-related right shoulder pathology;
· Mr Simm recommended ongoing treatment of chronic pain along current conservative lines. He also advocated further injection into the right subacromial space both because it might be therapeutic and could help provide a diagnosis. As we know from the results of the procedure undertaken by Dr Lovell in July 2010, these have already indicated that the plaintiff was probably suffering from persistent shoulder joint not neck related pain;
· Mr Simm had difficulty evaluating the plaintiff's capacity for alternative work in the absence of a definite diagnosis for limitation of movement and use of the plaintiff’s right upper limb. He, nonetheless, acknowledged that allowing for the plaintiff’s reported symptoms and the restriction in movement found on examination, future alternative employment would likely be confined to light, non-physical forms of work.
79 I will discuss Mr Simm’s additional advice on whether, based on the plaintiff’s subjective account of painful limitation of movement of the right upper limb, he has the capacity to perform a range of other activities nominated by the defendant’s solicitors as part of my discussion of the pain and suffering consequences below.
Compensable injury
80 As my summary of the medical evidence has shown, doctors are unanimous in finding compensable injury to the plaintiff's right shoulder as a result of the incident described. The general practitioners and a number of specialists, Mr Gale, Mr Scott, Dr McInnes and Mr Kossmann, have accepted the likely correlation between the work-related incident described by the plaintiff and the heterogeneous linear tear of the supraspinatus tendon revealed by the earliest ultrasound. Other specialists, Dr Lovell, Professor Marshall and Mr Simm have all spoken more generally of a work-related strain injury to the right shoulder.
81 Despite the results of the MRI study and the later ultrasound investigations, the plaintiff's right shoulder injury is plainly unresolved. Doctors have consistently found restricted movements and signs of ongoing impingement, which help explain the plaintiff's complaints of pain and disability. The conflict between the medical opinion of Mr Simm and the other doctors comes down to whether the persistent pain and the symptoms found are due to unresolved work-related injury to the the right shoulder.
82 Leaving any neck injury to one side, the most recent evidence of particularly the treating general practitioner and Mr Kossmann indicates that, the right upper limb disability and associated consequences impacting on the plaintiff's employment, domestic, social and recreational activities will likely persist for the foreseeable future.
Pain and Suffering Consequences
83 I now turn to consider the pain and suffering consequences.
84 As the Court of Appeal explained in Haden Engineering Pty Ltd v McKinnon,[60] the pain and suffering consequence encompasses both the plaintiff's experience of pain and the disabling effect of the pain on his physical capabilities (including his capacity for work) and enjoyment of life.
[60] [2010] VSCA 69 [9]-[17] and applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
85 Evaluating the experience of pain due to the right upper limb injury requires consideration of:
· the plaintiff’s evidence as to the intensity (for instance, is it mild, moderate or severe) and, if not constant, the frequency and duration of episodes of pain;
· the treatment received or recommended in the years since the incident;
· the medical evidence as to the extent of and intensity of pain;
· the objective evidence of the disabling effect of pain.
86 Evaluating the disabling effect of pain requires consideration of the extent to which pain continues to limit the plaintiff's activities and interferes with his enjoyment of life.
87 In this regard the significance of what is lost may be informed to some extent by what the plaintiff has retained. For instance, in her affidavit sworn on 9 September 2013, the plaintiff's wife highlighted the contrast between his life before and since the incident. She attested that her husband had always been: "on the go and a very active person. He looked after the garden and he did assist me in the household if I asked him and he was always willing to help"[61] However, since the incident, he had stopped mowing the lawn or cleaning the house, given up the recreational activities previously enjoyed by him and now spent most of his days sitting in front of a television, doing almost nothing else.
[61] Affidavit of Denise Jacqueline Phillips, PCB 30
88 As is evident from the plaintiff's evidence (to which his wife’s evidence lends some support) and the reports made to doctors in the years since the incident, the areas of the plaintiff's life impacted by pain and disability, included, he said, employment, sleep, the mobility of his dominant upper limb, domestic duties, sexual life, recreational and social activities and his enjoyment of life. He was a man who before the accident enjoyed fishing, kayaking at least once a week (“I could paddle more than 40 km without any difficulty”[62]) or riding his motor bike for an hour at the end of the day, who often spent 4 or 5 hours at a time on weekends engaged in leatherwork, who had designed and made furniture and who was handy in performing maintenance around the house.
[62] PCB 25
89 At hearing I was told that the plaintiff had attempted vocational training and was now the holder of truck driving and forklift licences, but remained restricted to lighter sedentary work.[63]
[63] TN 12-13
90 Under cross-examination the plaintiff confirmed that he had a certificate in office administration and in occupational health and safety and he had completed an employment options program offered by Centrelink.[64] The suggestion that the plaintiff had withheld this and other information about his earlier work history which, if known, may have influenced doctors’ assessment of the plaintiff’s future capacity was without merit. Firstly, I was not satisfied that the plaintiff had misled the doctors about his qualifications and experience in employment. Secondly, I was satisfied that the doctors had been well versed in these matters when they assessed the plaintiff’s work capacity and lastly, the evidence shows that most of the 57 year old plaintiff’s work history, particularly in the years preceding the incident, probably involved some level of physical work.
[64] TN 31-32
91 At hearing the plaintiff told the Court he had unsuccessfully applied for sales work in hardware and as a console operator at a service station and had sought jobs through Work Solutions, without receiving feedback on why he had been unsuccessful.[65]
[65] TN 32-33 and 48-49
92 While I accept that the medical records kept by the general practitioners[66] indicate some reluctance on the plaintiff’s part in seeking employment, I was nonetheless satisfied by the medical assessments made that the right shoulder injury continued to make a significant contribution to likely permanent reduction in the plaintiff’s work capacity by precluding participation in employment other than lighter, non-physical work.
[66] Exhibit D4 and PCB 35-42
93 As to his experience of pain in his right shoulder and arm, the plaintiff deposed that this was "constant".[67] At hearing he indicated that he was never without pain.[68]
[67] PCB 24
[68] TN 49
94 The defendant challenged the plaintiff's account at hearing of his pain levels and the frequency with which he took strong painkilling medication.
95 Under cross-examination the plaintiff agreed that, as recorded on 2 July 2013, he "may have" told Dr Haddad that his pain level in his shoulder was 2/10.[69] I was unable to tell from reading the record whether this was intended to describe the pain level on the date of the attendance only. However, at hearing the plaintiff told the Court his pain level was running at around 3 or 4/10 daily and quite often exceeded 4/10, but this varied depending on the amount of painkilling medication taken.[70] When re-examined, the plaintiff further indicated that his pain level reached 7 or 8/10.[71]
[69] TN 42 and Exhibit D4
[70] TN 42-43
[71] TN 48
96 As we know from the medical reports tendered in the years since the incident, from time to time, the plaintiff has reported using painkilling medication, particularly Panadeine Forte to manage his pain levels. There were a number of references to the prescription of this medication since the incident contained in the notes extracted from the clinical record.[72] In particular, on 12 February 2010 the plaintiff reported taking up to 8 Panadeine Forte tablets daily, because mowing the lawn had caused a significant flare up in his symptoms over a three day period.
[72] Exhibit D4
97 In both affidavits, the plaintiff deposed to regularly medicating to reduce his pain level. In September 2013, some seven weeks prior to the hearing, the plaintiff deposed that he took Panadeine Forte 2 to 3 times and Panadol 3 to 4 times weekly in the treatment of neck and right shoulder pain, although his main reason for taking the Panadol, he said, was to relieve regular headaches.[73]
[73] PCB 27-28
98 At hearing, during evidence-in-chief, cross-examination and re-examination the plaintiff was questioned about his medication regime. As it turned out, the plaintiff's evidence at hearing indicated an increase in his use of painkilling medication.
99 For instance, in his evidence-in-chief the plaintiff confirmed that he continued to take medication, Panadeine Forte and Panadol. In effect, the plaintiff indicated that he took this medication most days. He took 2 or 3 Panadeine Forte tablets, usually in the afternoon, "say" six days out of seven, on occasions he took 3 Panadeine Forte tablets at a time (presumably due to the severity of pain) and he took 2 or 3 Panadol tablets every day to take the edge off his pain.[74]
[74] TN 29-30
100 Under cross-examination the plaintiff confirmed the evidence that he took 2 to 3 Panadeine Forte tablets in the afternoon, 6 to 7 days a week,[75] although during re-examination the plaintiff qualified this by indicating there may have been times over the course of the last year when his use of Panadeine Forte was less than six days per week.[76]
[75] TN 44
[76] TN 49
101 The plaintiff was also cross-examined about the frequency with which Panadeine Forte was prescribed and the quantity prescribed. To this end, he was taken to the extracts from the clinical records made to 10 September 2013.[77]
[77] Extracts from which were tendered, Exhibit D4
102 In summary, the plaintiff recalled usually seeing his doctor monthly. He thought his last prescription was obtained about a week before the hearing. The plaintiff also believed that, his doctor gave him one or two repeats when he prescribed Panadeine Forte and, after filling a prescription, he received three boxes in a pack containing probably 20 tablets in a box.[78] In other words, the plaintiff obtained about 60 Panadeine Forte tablets per single script. If, as claimed, he took between 2 and 3 tablets (say) six days a week, in the period prior to the last prescription recorded on 27 August 2013, (with no repeats) I would expect the clinical record to show prescription of this medication, in the order of every 3 to 5 weeks.
[78] TN 44-45
103 Examination of the clinical record suggests that there is a discrepancy between the plaintiff's reported use of Panadeine Forte at hearing and the record made. For instance, when examined by Dr Haddad on 23 August 2012, the doctor apparently reduced the dosage of an earlier Panadeine Forte prescription (500 mg/30 mg 2 q.i.d. p.r.n.) by prescribing Panadeine Forte, 500 mg/30 mg, one tablet daily as directed.[79]
[79] Exhibit D4
104 The record shows that between 23 August 2012 and 10 September 2013, the plaintiff attended Dr Haddad on three further occasions, on 6 February 2013, 2 July 2013 and 27 August 2013. On each attendance the doctor renewed this prescription at the dosage mentioned. There was no indication in the record made that the plaintiff also received more than one prescription at a time.
105 While it may be the case that on a date or dates after 10 September 2013 the plaintiff's general practitioner renewed the prescription for Panadeine Forte, based on all of the evidence, I could not be satisfied that in the 12 months preceding the hearing the frequency with which the plaintiff used strong painkilling medication was as high as was suggested at hearing. As mentioned there was evidence consistent with prescription and use of higher dosages of this medication in the past, although currently, the prescribed dosage is one tablet daily. The conclusion I reached having regard to this evidence was that the frequency with which the plaintiff used strong pain killing medication to control pain was probably less than as described at hearing.
106 Moreover, I could not be satisfied by reference to the medical material, that the plaintiff’s reported experience of pain on a daily basis was as described at hearing. This does not mean that I have rejected the plaintiff’s evidence of ongoing right upper limb pain at a level that required frequent use of pain killing medication. His wife’s observation that the plaintiff’s pain and restrictions appeared to her to be getting worse and a consistent body of medical evidence, which indicates likely regular use of strong painkilling medication to manage, in the main persistent right upper arm symptoms, worsened by activity involving the use of the plaintiff's dominant right upper limb, is supportive of this conclusion.
107 Accordingly, for the purpose of this application I was satisfied that, as a result of the right shoulder injury, the plaintiff probably continued to experience pain at a level, which requires regular (possibly daily) use of pain killing medication (Panadeine Forte and/or Panadol) and that pain was worsened by activities involving the use of the plaintiff’s dominant right arm. In itself, the endurance of ongoing pain from which for the foreseeable future the plaintiff is unlikely to be free (even with medication), is one of a number of important factors in the assessment of the pain and suffering and loss of enjoyment of life consequence of the right shoulder injury.
108 As mentioned, in September 2013, without distinguishing between the neck and shoulder injuries, the plaintiff deposed to suffering headaches very regularly and using Panadol to relieve these.[80] Under cross-examination he said that prior to the incident he may have suffered one or two headaches a year which were "not extreme".[81]
[80] PCB 28
[81] TN 40
109 The clinical notes tendered were not complete. As mentioned those tendered, indicated that on 12 February 2010, the plaintiff reported taking up to 8 Panadeine Forte per day over a number of days for severe pain after mowing the lawn. When next seen on 1 March 2010 by general practitioner, Dr Fernando, among other things, the plaintiff complained of pain radiating to the back of his neck and what the doctor characterised as "occipital headaches".[82] This record was made in the weeks prior to examination by treating neurosurgeon, Mr Timms who had been asked to assess symptoms of neck and right arm pain following the incident. Accordingly, based on this record and the reports made to doctors from time to time, I could not be satisfied the headaches described were related to the right shoulder injury and, if they were, the frequency and severity of the headaches suffered.
[82] Exhibit D4
110 It is convenient to deal with the disabling effect of pain and the extent to which it interferes with the plaintiff's activities and enjoyment of life, together. The plaintiff nominated activities and areas of his life affected by physical pain and disability as follows:
· in September 2013 the plaintiff deposed that pain in his neck and right shoulder interrupted his sleep ("I'm lucky to get 3-4 hours sleep at night"[83]). Under cross-examination, the plaintiff indicated that sleep had been interrupted since the incident. I could not find a consistent medical history to support the assertion that injury-related pain had interfered with the plaintiff's sleep since the incident. This is not to deny that, from time to time, in recording psychological symptoms a general practitioner recorded the plaintiff's sleeping pattern as being either "poor"[84] or, in most instances, "normal".[85] In these circumstances, I could not be satisfied the record made by psychiatrist, Dr Das ("His sleep and appetite is not affected…"[86]), as the plaintiff claimed, was wrong.[87] Furthermore, while I accept that, more recently, complaint of reduced sleeping hours was one of a number of considerations, when in July 2013 the plaintiff agreed to treatment by a psychologist, at the date of hearing I could not be satisfied of the extent to which, if any, impairment of the right shoulder contributed to his sleep disturbance;
[83] PCB 28
[84] Exhibit D4, as the example, on 26 March 2010 and 2 July 2013
[85] Exhibit D4, as for example, on 20 April 2010, 18 May 2010 and 14 June 2011
[86] DCB 53
[87] TN 45
· as submitted on the plaintiff's behalf, since injuring his right shoulder he has consistently reported escalating pain in association with repetitive or increased use of his dominant right upper limb. His affidavit evidence was to the effect that he was unable to use his arm "very much" because use of his arm at or about shoulder height and activity involving his dominant arm increased pain for some considerable time, possibly hours.[88] Based on the evidence summarised, I have accepted the right shoulder injury likely makes a significant contribution to this consequence;
[88] PCB 28
· the plaintiff has consistently reported to doctors that pain in his right arm and shoulder has stopped or restricted various activities in his domestic world. These include gardening (as his wife confirmed the plaintiff no longer mows the lawn and, at hearing, the plaintiff told the Court that undertaking this activity caused pain for the next two or three days[89]) or assisting, as he had in the past, in vacuuming and housecleaning. Mr Simm was asked whether in his opinion the plaintiff was physically capable of performing a range of activities, which included vacuuming, sweeping and mopping, cutting hard vegetables and opening jars and bottles. Subject to the rider that this specialist’s answers were based on the plaintiff's subjective reporting of painful limitation of movement, Mr Simm accepted that these activities would probably be difficult, if not impossible.[90] On the evidence summarised I have accepted that constraints on the activities described indicate significant ongoing restrictions in the plaintiff’s domestic environment to which the right shoulder injury likely makes a significant contribution;
[89] PCB 30 and TN 29
[90] DCB 66-74
· again, the plaintiff has consistently reported to doctors that pain in his right arm and shoulder has significantly reduced his recreational and social activities. These include the fishing, kayaking, leatherwork, woodwork and motor cycle riding activities earlier described, as well as likely restriction on the plaintiff’s ability to drive longer periods without rests, as mentioned by him from time to time to doctors. Whether or not Mr Simm is correct in his view that light leather work and woodwork at waist or bench height was within the plaintiff’s capacity, on the evidence summarised, I have accepted that all of the activities described represent examples of social and recreational activities, either precluded or restricted, to which the right shoulder injury likely makes a significant contribution;
· the likely contribution of the right shoulder injury to restrictions on personal hygiene activities, such as using his right hand to wash his hair, to using his right hand when going to the toilet and to the complete loss of libido also mentioned by the plaintiff’s wife are also relevant to my determination of the pain and suffering consequence and loss of enjoyment of life aspects of this application;
· the likely permanent loss of capacity to return to full-time employment, other than in light work or non-physical jobs is another important consideration.
111 As mentioned, with proper allowance for both radiological and clinical findings and putting to one side the contribution of any psychological factors, I was satisfied on the balance of probabilities that there existed a substantial organic basis for the pain and suffering consequence of unresolved injury to the right shoulder.
112 In conclusion, when considered as a whole, the pain and suffering consequence of physical impairment of the plaintiff's right shoulder, when judged by comparison with other cases in the range of possible impairments is properly described as more than 'significant' or 'marked' and as 'at least very considerable'.
Orders
113 I propose to make an order granting leave to the plaintiff to institute common law proceedings against the defendant in respect pain and suffering damages only for injury suffered to his right upper limb in the course of his employment with the employer, in particular on or about 29 May 2009.
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