Rice v Victorian WorkCover Authority
[2020] VCC 701
•29 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05221
| JOAN RICE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2020 | |
DATE OF JUDGMENT: | 29 May 2020 | |
CASE MAY BE CITED AS: | Rice v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 701 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the right shoulder – paragraph (a) of the definition of “serious injury” – whether consequences of injury to the spine are serious in nature – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission& Avalanche [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Decision: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Arnold Thomas Becker |
| For the Defendant | Ms S Gold | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation & Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff while employed by the Department of Human Services (“the employer”) on 4 March 2016, while performing archiving work (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to s(a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘Serious injury’ means –
(a)permanent serious impairment or loss of a body function … .”
4 The impairment of body function relied upon is the right shoulder.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury”, by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 1 July 2014. As set out in s325(1), the impairment of the body function must be permanent.
6 The plaintiff has the burden of proof on the application. The standard of proof is the balance of probabilities.
7 By s325(2)(c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity,” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “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”. This has been referred to as the “narrative” test. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9 Section 325(2)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 By s325(2)(b), in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the impairment arising from the injury the subject of this application and the range of possible impairments or losses of body function.
11 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[4]
[4]Petkovski v Galletti [1994] 1 VR 436
12 Applying the principles set out in Petkovski v Galletti,[5] in an application like this where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury or the consequences of the additional injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[6] If I am satisfied that the additional impairment is “serious” and long-term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[7]
[5](ibid) at 443
[6](Supra) at 444
[7] Supra
13 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[8] and Grech v Orica Australia Pty Ltd & Anor.[9]
[8](2005) 14 VR 622
[9](2006) 14 VR 602
14 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
15 In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[10] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[10]The Plaintiff’s Court Book (“PCB”) was marked as exhibit P1. The Defendant’s Court Book (“DCB”) was marked as exhibit D1
The Plaintiff’s background
16 The plaintiff was born in Malaysia in June 1957. She is currently sixty-one years of age.[11] She lives with her husband, who is retired. She has two children, a daughter aged thirty, who still lives at home, and a son aged twenty-seven.[12]
[11]Exhibit (“Ex”) P1, page (“p”) 2
[12]Ex P1, p2
17 The plaintiff completed the equivalent of Year 12 at school. After leaving school, she worked as a claims officer for QBE Insurance for about eight years.[13] She came to Australia in or about 1986, at about the age of twenty-nine. She undertook an Advanced Diploma in Disabilities, a Certificate IV in Disabilities and a Certificate IV in Training. Her work history thereafter involved working as a disability support worker at places such as Villa Maria and Nadrasca.[14]
[13]Ex P1, p3
[14]Ex P1, p3
18 The plaintiff commenced work with the employer or its predecessor, the Department of Human Services, on or about 16 December 2013 as a disability support worker. Her hours varied between 57 to 62 hours per fortnight. With overtime and shift allowance, she could earn as much as $2,400 per fortnight.[15]
[15]Ex P1, p3
19 At the time of the accident, the plaintiff was performing archiving services for the employer.[16]
[16]Ex P1, p4
Pre-existing injuries
20 Prior to the accident, the plaintiff had suffered a right ankle injury as a result of playing volleyball in about 2010. She had ruptured the tendon and needed to undergo surgical repair. Her right ankle was manageable after that.[17]
[17]Ex P1, p3
21 The plaintiff also suffered from some pain in her right shoulder in or about September 2013 in a work-related incident when she was supporting a client in the bathroom. She saw her general practitioner, Dr Leanne Myerscough, about this issue. Dr Myerscough recommended that the plaintiff undergo an x-ray if the pain persisted. The plaintiff did not undergo the x-ray and her shoulder “came good”.[18]
[18]Ex P1, p3
The accident
22 The plaintiff gave the following evidence in relation to the manner in which the accident occurred:
“… In archiving there were about eight of us performing similar tasks. Effectively, we would pull out old files and place them into archive boxes. These boxes were quite heavy when full, weighing anywhere between 15 and 20 kilograms and we would have to place these boxes onto a trolley. Each trolley held 20 plus boxes. When the trolley was full, we had to push, usually one of us pushing and one of us pulling, as the trolley was heavy, towards a lift and downstairs into the basement. The basement consisted of aisles of metal shelving which went from floor to ceiling, approximately 7 feet high. The boxes would then have to be placed systematically into the shelves. As the aisles of shelves were tight, we were not able to manoeuvre the trolleys into the areas where the boxes had to be placed and therefore we adopted a system whereby one worker would pick up the box from the trolley, hand it to another worker who would hand it on to another worker and so forth until it got to the worker standing next to the shelf, usually the tallest worker for the higher shelves, who would then place the boxes into the various levels of shelving.
… It was hard repetitive work. At no time had I been provided with any training with respect to manual handling nor was the job being supervised. When we started this work, I spoke to one of the employees of the defendant who was in charge of allocating the work about the manual nature of the work and the fact that workers were having trouble with lifting to which she responded ‘Well that’s a no brainer’.
… In any event, we had been performing this job for a couple of weeks, the same job day in day out. We were putting away anywhere between five to eight trolley loads full of boxes per shift.
… On or about 4 March 2016 we had been performing the archiving work as I have described above. It was about midday when I was in the process of lifting one of the heavy boxes off the trolley when I felt a sharp pain in my right shoulder, so bad that I ended up dropping the box. I reported the incident and an incident report was completed.”[19]
[19]Ex P1, p4-5
23 The plaintiff’s husband ended up driving her later that day to see her general practitioner, Dr Myerscough, who organised an ultrasound of the right shoulder, which revealed a partial thickness, partial width, supraspinatus tear in addition to subacromial bursitis in the plaintiff’s right shoulder.[20]
[20]Ex P1, p5
24 The plaintiff stopped work for a time, lodging a claim for compensation on 10 March 2016 which was accepted.[21]
[21]Ex P1, p5
25 Because of the pain in her right shoulder, the plaintiff was having regular osteopathic and acupuncture treatment, in addition to relying on Chinese medicine. She attempted to get back to work pursuant to a return to work plan and in the meantime, lodged a claim for compensation for stress arising out of the way she was being treated at work on or about 3 August 2016. She believes that claim was rejected.[22]
[22]Ex P1, p5
26 By the end of 2016 or the start of 2017, she got back to gainful employment with the employer and is currently working between 50 and 80 hours per fortnight, in the eastern region. This is work providing personal care to residents, helping with medical appointments and with activities of daily living. She has to stay away from high support residents because of her right shoulder pain, as she would have difficulty dealing with those residents, for example having to use hoists and to handle other equipment.[23]
[23]Ex P1, p5
27 The plaintiff underwent a further ultrasound of her right shoulder on 18 July 2018 which revealed full thickness tears of the supraspinatus and subscapularis tendons, in addition to subacromial bursitis, impingement and subluxation of the long head of the biceps tendon.[24]
[24]Ex P1, pp5-6
Evidence concerning the consequences of the injury
28 The plaintiff swore two affidavits, the first dated 24 June 2019 and the second dated 30 April 2020.
29 In summary, her evidence as to the pain and suffering consequences which she presently experiences, is as follows:
Experience of pain
(a) the plaintiff continues to have ongoing pain in her right shoulder with the symptoms made worse by cold weather; [25]
[25]Ex P1, p6
(b) she has restricted movement in her right arm, particularly with overhead movements and has difficulty bending her arm behind her back;[26]
[26]Ex P1, p6
Treatment and medication
(c)she has continued with chiropractic treatment about once a month, which she finds helpful;[27]
[27]Ex P1, p6
(d)she does not take painkillers as they have in the past “wreaked havoc” with her, causing for example, tummy upset. She tries to deal with her pain at the end of the day through meditation which she finds helpful;[28]
[28]Ex P1, p6
Sleep
(e)the pain affects her ability to sleep quite frequently. For this reason she has resorted to sticking a small pillow under her shoulder for support;[29]
Employment
(f)because of the pain and restriction in her right arm, she has difficulties with many aspects of her work. Reaching for items in cupboards, opening blinds, getting out clothes for residents and lifting items such as heavy frypans, are difficult for her;[30]
(g)because she needs to continue to work, she does the best she can. She has embarked upon a degree in counselling in an effort to change her career to something more manageable;[31]
(h)she continues to work although her hours vary. She has two regular shifts of eight hours per shift or 16 hours per week. She no longer accepts high support work and limits the work she does in the behavioural area. This work involves minimal personal care duties;[32]
(i)she took on an additional two-and-a-half-month contract between January 2020 and mid-March 2020, consisting of 48 hours the first fortnight and 54 hours the following fortnight. During that time, her right shoulder was particularly stiff and sore by the end of a shift;[33]
(j)part of her degree in counselling involves computer work. She finds that having her arms outstretched for prolonged periods of time increases the pain in her right shoulder and she needs to have regular breaks in order to stretch when she is performing that activity;[34]
[29]Ex P1, p6
[30]Ex P1, p6
[31]Ex P1, p6
[32]Ex P1, p9
[33]Ex P1, p10
[34]Ex P1, p10
Activities of Daily Living
(k)the pain affects the plaintiff in many of her day-to-day activities;[35]
[35]Ex P1, p6
(l)she tries to avoid lifting heavy weights with her right arm; [36]
[36]Ex P1, p6
(m)when she is driving, she tends to rely on her left hand both in her own vehicle and also in the minibus which she is required to drive for work;[37]
[37]Ex P1, p6
(n)she and her husband used to enjoy going for long bushwalks to places such as Gippsland and Echuca. They would go about once every two weeks. That activity has dramatically dropped off because of her right shoulder injury. These days when she does go for such a walk, she tends to rely on walking sticks, sometimes hanging onto her husband for support;[38]
[38]Ex P1, pp6-7
(o)she is unable to walk her two German shepherd dogs anymore. One of her dogs is quite large, the other one a little bit smaller. Because the dogs pull, she needs to use both arms in order to hold onto the leash. For this reason, more often than not, her daughter now walks the dogs for her;[39]
[39]Ex P1, p7
(p)she is restricted in terms of domestic chores such as mopping and vacuuming. These jobs are now either done by her children or by her husband. She has difficulty scrubbing the shower and for this reason, her husband does this for her. He also assists her with making the bed and putting on the doona;[40]
(q)she has difficulty reaching into overhead cupboards at home and more often than not, will either use a stepladder or get her husband to assist;[41]
(r)she has had to have her laundry modified because she was having difficulty attending to this task. She has had her husband modify the height of the washing machine and dryer to make reaching in and out of those appliances more manageable;[42]
(s)she has difficulty cooking, especially in lifting heavy pots and pans off the stove;[43]
(t)she has difficulty with personal tasks such as washing and drying her hair or putting on a jumper. She has had to change her technique in getting dressed;[44]
(u)while she still travels with her husband, he has to carry the suitcases due to her difficulty with lifting heavy weights with her right hand;[45]
(v)she is unable to put away cups and saucers and other objects in high cupboards in her kitchen;[46]
(w)she is unable to perform certain maintenance tasks around the house such as painting. She needs to wait for her son or daughter to help her before embarking upon those tasks;[47]
(x)she finds it difficult to do any heavy lifting with her right arm. In particular, she has difficulty lifting heavy shopping bags.[48]
[40]Ex P1, p7
[41]Ex P1, p7
[42]Ex P1, p7
[43]Ex P1, p7
[44]Ex P1, p7
[45]Ex P1, p7
[46]Ex P1, p10
[47]Ex P1, p10
[48]Ex P1, p10
30 Under cross-examination, the plaintiff gave the following evidence:
(a)she is stronger in her left hand;[49]
[49]Transcript (“T”) 11, Line (“L”) 18-20
(b)she denied that before the accident she would prefer to use her left hand: “No, I’d use both my hands”;[50]
[50]T11, L24-26
(c)she saw orthopaedic surgeon, Professor Ton Tran, only once;[51]
[51]T12, L7-8
(d)at that time, she was having osteopathic treatment and not using any pain medication;[52]
[52]T12, L7-23
(e)she does not recall Professor Tran telling her that she had a “excellent range of motion with good rotator cuff strength”;[53]
[53]T12, L24-30
(f)she accepted that Professor Tran might have conveyed that information to her general practitioner;[54]
[54]T12-13
(g)she accepted that Professor Tran did not suggest any injections, surgery or other interventions;[55]
[55]T13, L4-7
(h)she recalled that Professor Tran told her that she could perform CPR as long as her shoulder did not hurt;[56]
[56]T13, L14-16
(i)she did not recall Professor Tran telling her that any problems she had with her employment were unrelated to her shoulder injury;[57]
[57]T13, L17-25
(j)she agreed that she attended upon her general practitioner in November 2016, at which time she was not having too many problems with her shoulder, especially at work, unless she was doing a lot of mopping;[58]
[58]T15, L10-25
(k)she said that while from the end of November 2016 the doctor stopped certifying her as only fit for modified duties, she still imposes restrictions on herself. The plaintiff said “… the reason for that is because my shoulder gets really sore at the end of the shift … this is why I restrict myself”;[59]
[59]T15-16
(l)she agreed that her general practitioner has not written out any WorkCover certificates of capacity limiting the work she can do since November 2016;[60]
[60]T16, L20-24
(m)she agreed that no other doctor has written out any certificates of capacity limiting the work that she can do since November 2016;[61]
[61]T16, L25-28
(n)she agreed that she has continued to work, and that her earnings have gone up rather than down, in 2016. The plaintiff said that she is “very careful” in the jobs that she takes on:
“… I do not take on anything to do with high support where there is a lot of manual handling and I also am careful not to do shifts early in the morning which entails a lot of housework, which is mopping, vacuuming, you know, cleaning;”[62]
[62]T16-17
(o)she agreed that she has been studying while she has been working. This is a Graduate Diploma of Counselling;[63]
[63]T17, L17-19
(p)she agreed that she had been able to cope with both her study and her work. She agreed that she can do up to fifteen hours of study a week, depending on her shifts at work;[64]
[64]T17-18
(q)she agreed that it had been well over a year since she had any osteopathic treatment. She has been having chiropractic treatment. Her chiropractor’s name is Matthew Warren. He “does an adjustment on the whole body to make sure you are in alignment”;[65]
[65]T18-19
(r)she has had surgery on her right ankle in the past. She had to have surgery because of past injuries from playing sport. She could not recall what year the surgery occurred. She did not think that it was in 2019. She thought that perhaps in was in 2012;[66]
[66]T19-20
(s)she said that her ankle gets a little bit tight. She said that her ankle does get sore when she spends time on her feet. She said that it does not really affect her while she is walking, it is just when she sits down and rests that she feels that it is tight;[67]
[67]T20-22
(t)she said that her shoulder impacts her ability to go bushwalking with her husband “because of my balance … when you are climbing and you know going down steep inclines”. When asked whether it is her ankle that causes her more problems than her shoulder with the bushwalking, she replied that they were “on par”;[68]
[68]T22, L3-13
(u)she said that she does not walk her German Shepherd dogs anymore “because they’re strong … pulling would be … dangerous”. She said that she has not walked her dogs since her shoulder injury;[69]
(v)when it was put to her that she had attended the doctor because of an injury to her right hand involving her dogs in 2018, she acknowledged that this consultation had taken place. She said that the incident happened in the yard of her house at home, rather than when she was out walking the dogs;[70]
(w)she acknowledged that it may be that the last time the general practitioner examined her right shoulder was in June 2018. She agreed that since that time, she has been to her general practitioner for a lot of other unrelated things;[71]
(x)she agreed that she had not been to her general practitioner in relation to her right shoulder since June 2018;[72]
(y)she agreed that in June 2018, she was attending her general practitioner in order to pursue a permanent disability claim. She agreed that she had not attended her general practitioner on that occasion for treatment, but because her solicitor had requested a report in relation to her right shoulder. She agreed that she was not keen on any treatment at that time. She said that the reason she was not keen on treatment was that because the treatment that was being suggested was a cortisone injection. She knew that such treatment would not have a good effect on her body and she wanted to avoid it. She said “I can use other methods like meditation … or natural methods … to deal with the pain”. She confirmed that she does not take medications for other conditions either;[73]
(z)she said that despite the fact that sometimes she had been prescribed medications she had not used them;[74]
(aa)she agreed that when she had the problem with her ankle she had had surgery at that time. When asked if she was interested in surgery for her shoulder, she replied “… Dr Tran said there was nothing he could do”. When she was asked if she would be interested in treatment to make her shoulder better, her response was “… Does that mean it would go back to 100 per cent as it was?”[75]
(bb)she disagreed with the proposition that if she was in a lot of pain, she would be taking pain medication. She said that after her ankle surgery she had had pain medication but discontinued its use, because she was having a lot of issues with that medication. She disagreed that if she was in pain she would be getting treatment from a practitioner like an osteopath. She said that she did not find that there was a lot of benefit from seeing the osteopath. She disagreed with the suggestion that if she was in a lot of pain she would be talking about it regularly with her general practitioner. She said “I know if I speak to her she would suggest chemical medication and she knows how I feel about the chemical medications and what she would prescribe …”;[76]
(cc)she agreed that if she works too much, while her shoulder is painful in the evening, it does not keep her awake at night. She said that that is because she uses meditation to get herself to sleep. She said that prior to injuring her right shoulder, she did not need to utilise meditation to get back to sleep if she woke up during the night;[77]
(dd)she agreed that since the injury to her right shoulder, she had travelled overseas to Asia. She agreed that she enjoyed travelling. She agreed that she had been to Japan in early 2019. She agreed that this was an enjoyable trip.[78]
[69]T22-23
[70]T23, L8-31
[71]T24, L20-27
[72]T25, L4-5
[73]T25-26
[74]T26, L19-23
[75]T26-27
[76]T27-28
[77]T28-29
[78]T29-30
The medical evidence
31 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
32 A report from the plaintiff’s general practitioner, Dr Leanne Myerscough, was included in the Plaintiff’s Court Book. The report dated 29 April 2020 noted that a right shoulder ultrasound performed on 4 March 2016, which showed:
“… Heterogeneous appearance of the supraspinatus tendon most likely representing a partial width, partial thickness tear with defect measuring approximately 10mm in diameter. Moderate amount of subacromial bursal fluid.”[79]
[79]Ex P1, p28
33 Dr Myerscough noted that when she had seen the plaintiff on 5 December 2019, the plaintiff said that she was still working, but that if she does too much her right shoulder is sore in the evening. The plaintiff told her that the pain does not keep her awake at night. Dr Myerscough noted that the plaintiff had last attended specifically in respect of her right shoulder condition on 9 June 2018. Dr Myerscough noted the following:
“… Joan stated that she was still working, that the right shoulder gets painful if cold or active for example a lot of mopping/vaccuuming (sic) and that the twinges were 7-8/10. Joan stated that she chose not to use any medications for this but avoided mopping, vaccuuming (sic), reaching up to cupboards, using a ladder instead. Joan also stated that she avoided carrying heavier boxes including deliveries at work … Joan was not keen on any active treatment at that stage and an ultrasound was requested. … The ultrasound [showed] … full thickness supraspinatus and subscapularis tears were now present, with associated bursitis and impingement. Management options were discussed and Joan stated that she was happy to manage the pain herself and that she did not want [a] local steroid injection or to consider surgery. We have not formally assessed the right shoulder since this date, but Joan has mentioned intermittently that it has been an ongoing issue.”[80]
[80]EX P1, 29
34 The plaintiff was examined for medico-legal purposes by Dr Graeme Doig, orthopaedic surgeon, on 20 September 2018. In a report dated 26 September 2018, Dr Doig expressed the opinion that the plaintiff was suffering from a rotator cuff tear in her right shoulder which has been treated by conservative management. He noted that the plaintiff continues to suffer from pain and restrictions as a result of that injury. While Dr Doig was of the opinion that her prognosis was reasonably good, in that she had returned to full-time employment, he also noted that the employment that the plaintiff was then undertaking was a “lighter position”. In the future he thought that the plaintiff would continue to suffer from restrictions in her ability to lift, push and pull. He thought that lifting should be restricted to 5 kilograms and that pushing and pulling could only take place at or below waist height. He noted that she has a continuing restriction on the use of her right arm overhead.[81]
[81]Ex P1, p16
35 The plaintiff was examined for medico-legal purposes by Mr Ash Chehata, shoulder, elbow and wrist surgeon, on 17 September 2019. In a report dated 3 October 2019, Mr Chehata diagnosed the plaintiff as suffering from a partial thickness rotator cuff tear that had progressed into a full thickness rotator cuff tear of the supraspinatus and subscapularis tendons. Mr Chehata noted that from a functional perspective, the plaintiff has a limited capacity to perform overhead activity and this affects both her cooking and lifting of heavy pans, lifting cups and saucers and placing objects in the higher cupboards. He noted that she finds all of these activities difficult. He noted that the plaintiff had modified the majority of her activities so that she could remain employed and also that she performs the majority of her activities of daily living and domestic duties in a way so as not to aggravate the ongoing shoulder pain that she experiences.[82]
[82]Ex P1, pp23-24
The Defendant’s medical reports
36 The defendant relied upon two reports from Professor Ton Tran, orthopaedic surgeon, in respect of his treatment of the plaintiff.[83] In the first report dated 3 August 2016 addressed to Dr Leanne Myerscough, Professor Tran noted that the plaintiff at that time had been attending osteopathic treatment on a weekly basis and was winding down to fortnightly. He said that her treatment with that practitioner involved stretching and TheraBand exercise. He noted that she was also having some acupuncture and Chinese-medicine treatment. He noted that she did not require any analgesics and used regular meditation for self management. He thought that upon examination, she had an excellent range of movement with good rotator cuff strength. He did not think that there was any intervention needed at that time. He thought that it would be suitable for her to perform CPR as long as her shoulder did not hurt. In the report dated 19 December 2018, Professor Tran expressed a similar opinion.[84]
[83]Ex D1, pp4-7
[84]Ex D1, p7
37 The defendant also included two reports from the plaintiff’s general practitioner, Dr Myerscough, in its Court Book. Those reports were dated 23 October 2016 and 11 July 2018. Neither report expressed an opinion which was inconsistent with the opinion set out in paragraph 33 above.
38 On 21 April 2020, the plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr David Barton, consultant occupational physician. In a report dated 22 April 2020, Dr Barton noted that the plaintiff said there are lots of things that she cannot do, referring to lifting bags, mopping, vacuuming and lifting a basket of clothes. He said that the plaintiff told him that if she does attempt to do these activities, that can cause symptoms that last for a week or so. He noted that the plaintiff told him that her problems have remained much the same over the last year or so. The plaintiff told him that at times she can be “pain free”, particularly if she avoids aggravating her shoulder.[85] Upon examination, Dr Barton noted that the plaintiff had difficulty removing and replacing one of the tops that she was wearing. Measurement of the arm circumferences, both above and below the elbows, demonstrated that the left arm was of slightly greater muscle bulk than the right. Specific examination of the right shoulder showed quite marked tenderness around the top of the shoulder joint area. Shoulder movements were significantly reduced, with abduction and flexion both limited to around half the expected range. Dr Barton noted that there was some grimacing and complaints of pain with these movements. Dr Barton described his review of the relevant doctors notes as careful, but it is apparent that he was not aware of the progressive nature of the plaintiff’s injury to her right shoulder as demonstrated by the 2018 ultrasound. In particular, Dr Barton stated: “It would appear that she recovered over the next six months [after the injury] … with a good range of movement noted by her doctor towards the end of this period ... .”[86]
[85]Ex D1, p30
[86]Ex D1, p31
39 Dr Barton accepted that initially the plaintiff may have developed a soft-tissue injury of her right shoulder as a result of a work episode, but he did not accept that the injury was ongoing or a contributing factor to the plaintiff’s complaints in the last three or so years. In addition, Dr Barton concluded (presumably on the back of his assumption that the plaintiff’s injury had resolved at a much earlier time) that the “marked limitation of shoulder movements … seem disproportionate … [and that] the generalised weakness throughout the right arm … was clearly feigned …”.[87]
[87]Ex D1, p32
The issues
The Plaintiff’s credit
40 No serious attempt was made to discredit the plaintiff during cross-examination. As set out above, the plaintiff was pressed about the fact that she had managed to keep working full-time hours and also about her lack of treatment and medication in relation to her right shoulder.
41 The plaintiff provided explanations in relation to both of these matters. In relation to her ability to keep on working full-time hours, she explained that she had been required to change the type of work and shifts that she undertook so that she could avoid work which would cause her pain. She said that when she had to undertake these duties as part of her work she would suffer from soreness at the end of the day. In relation to the issue of medication, the plaintiff explained that she was opposed to taking medication, preferring to manage her pain through natural therapies and meditation. It was also evident from the materials contained in the court books and the evidence given by the plaintiff, that one strategy of managing her pain is to avoid any activities that cause her that pain.
42 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a co-operative witness who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment. She made concessions when necessary.
43 Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
44 After a consideration of all the evidence, particularly the evidence of the plaintiff, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or to exaggerate her symptoms.
Stoic Plaintiff
45 I also formed the view that the plaintiff is extremely stoic in relation to her condition. An analysis of the evidence demonstrates that she has suffered constant pain since 4 March 2016. Despite this, I find that she has continued to attend work, despite the pain and discomfort that this causes her.
Compensable injury
46 The details and occurrence of the injury are not in dispute.
47 Having considered all of the medical evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffers from a full thickness rotator cuff tear of the supraspinatus and subscapularis tendons with subacromial bursitis, impingement and subluxation of the long head of the biceps tendon.
48 I reject the opinion of Dr Barton that the accident is not a cause of the plaintiff’s ongoing symptoms, and that her limitations were “clearly feigned,” since this doctor was under the mistaken impression that the plaintiff’s right shoulder injury had resolved shortly following the accident. In fact, the evidence clearly demonstrates that the plaintiff’s right shoulder injury has worsened since the accident, progressing to a full thickness rotator cuff tear and associated injuries, as set out above.
49 It is not disputed that this injury is organic in nature.
Is the compensable injury permanent for the purposes of the Act?
50 Having considered the relevant reports, in particular the reports from Dr Doig,[88] Mr Chehata[89] and Dr Myerscough,[90] I find that the plaintiff is likely to suffer from the injury she sustained in the accident, for the foreseeable future. Given this, I find that this injury is permanent for the purposes of the Act.
[88]Ex P1, p16
[89]Ex P1, p24
[90]Ex D1, p29
Are the consequences to the Plaintiff of the accident “serious”?
51 The evidence indicates that the plaintiff had experienced a previous episode of pain in her right shoulder, but that this incident did not result in any ongoing pain or incapacity. In addition, the plaintiff has suffered an injury to her right ankle, which required surgical repair. This injury left her ankle manageable, albeit that it could get sore when she stood for long periods and could at times be “tight”. Despite this injury, prior to the accident, the plaintiff was able to engage in frequent bushwalking trips with her husband. During her evidence, she explained that the injury to her ankle did not so much impact on her walking, but would develop a “tightness” when she stopped and rested.
52 Having regard to these matters, and to all of the relevant evidence, I find that as a result only of the injury to her right shoulder which the plaintiff sustained in the accident, the plaintiff suffers from the following consequences:
(a)ongoing pain in her right shoulder with the symptoms made worse by cold weather;
(b)restricted movement in her right arm, particularly with overhead movements. She also has difficulty bending her arm behind her back;[91]
[91]Ex P1, p6
(c)the need to engage in alternative therapies and meditation, in order to manage her pain;
(d)frequently interrupted sleep and the need to place a small pillow under her shoulder for support while she is sleeping;
(e)difficulties completing many aspects of her work and the need to take only certain shifts to ensure that she can cope with that work. Her shoulder is particularly stiff and sore at the end of a shift if she takes on too much at work. The plaintiff’s difficulties with her work have necessitated her making an attempt to change careers to something more manageable;
(f)increased pain in her right shoulder due to the computer work which she needs to perform to undertake her studies for the planned career change;
(g)the need to avoid lifting heavy weights with her right arm, including difficulty with carrying heavy shopping bags;
(h)a reliance on her left hand when driving her own vehicle and also the minibus which she is required to drive for work;
(i)difficulty in undertaking the long bushwalks that she and her husband used to enjoy;
(j)an inability to walk her two German shepherd dogs;
(k)restriction in her ability to complete domestic chores such as mopping, vacuuming, scrubbing the shower, making the bed, doing the cooking and doing the laundry;
(l)difficulty reaching into overhead cupboards at home;
(m)difficulty with personal tasks such as washing and drying her hair or putting on a jumper;
(n)an inability to perform certain maintenance tasks around the house such as painting.
53 In Haden Engineering Pty Ltd v McKinnon,[92] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[93] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of pain experienced will depend upon an assessment of the plaintiff’s credibility.[94] It has been observed by the Court of Appeal that once it is accepted that an appellant is a truthful witness, and especially where the plaintiff has been found to be stoic, there is no reason to reject her ongoing descriptions of the pain suffered by her.[95]
[92](2010) 31 VR 1
[93](supra) at paragraph [9]
[94](supra) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at [44]
[95]ibid
54 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was both a witness of credit and also stoic in her presentation and attitude towards managing her injury.
55 An analysis of her evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of her injury to her right shoulder, which she suffered in the accident.
56 In particular, the plaintiff endures permanent, daily pain in her right shoulder, which causes significant discomfort and restrictions in various aspects of her life. This pain causes interrupted sleep and has impacted on her ability to work and live in an unrestricted manner. It has also impacted upon her ability to engage in the recreational activities which she used to enjoy. The level and nature of her pain is such that she is required to modify many of the activities that she undertakes in order to avoid causing herself pain, has had to consider retraining to find a more manageable career and engages in natural therapies and meditation to help her manage the pain, when it does arise.
57 The fact that after the accident, the plaintiff was prepared to keep working, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[96]
“… it would be unfortunate, and in [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[96][2008] VSCA 260
58 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to her right shoulder alone are “very considerable” and certainly “significant” or “marked” and therefore satisfy the relevant test for “serious injury”.
Conclusion
59 Accordingly, pursuant to s335 of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in respect of the injury that she suffered to her right shoulder on 4 March 2016.
60 I will hear the parties on the question of costs.
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