Ristovska v Voa Webco Pty Ltd (No 2)
[2010] VCC 153
•17 March 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01254
| DRAGA RISTOVSKA | Plaintiff |
| v | |
| VOA WEBCO PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 and 22 January 2010 |
| DATE OF JUDGMENT: | 17 March 2010 |
| CASE MAY BE CITED AS: | Ristovska v VOA Webco Pty Ltd (No 2) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0153 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Application pursuant to s.134AB(16)(b) Accident Compensation Act 1985 – right shoulder – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with | Shine Lawyers |
| Mr B Anderson | ||
| For the Defendant | Mr J Batten with | Herbert Geer |
| Ms L Barrett | ||
| HER HONOUR: |
1 This Originating Motion relates to a right shoulder injury sustained by the plaintiff in an incident at work on 19 August 2004 (“the said date”).
2 This application was heard at the same time as Originating Motion CI-09- 01255, which related to the plaintiff’s claim for bilateral upper limb impairment arising out of the course of her employment (“the process injury”).
3 As I have dealt at some length with the evidence and submissions relating to both applications in my judgment in Originating Motion CI-09-01255, I do not propose to repeat those matters in this judgment and I adopt the summary of evidence and the legal principles referred to therein by reference to the relevant paragraphs of that judgment.
4 Submissions made by both counsel were in general terms but dealt in greater detail with the process injury. Neither counsel made further submissions specifically relating to the right shoulder application.
5 On the said date the plaintiff hurt her right shoulder when she went to stand from beneath a machine and she struck her shoulder hard on the machine’s metal frame (”the incident”).
6 Whilst the plaintiff had undergone a right shoulder x-ay in 2002 (para 174), she did not have any ongoing problems with her right shoulder at the time of the incident.
7 Following the incident, the plaintiff received treatment for her shoulder injury from her general practitioner, who ultimately referred her to orthopaedic surgeon, Mr O’Donnell, who suggested surgery (paras 27-30, 37).
8 Investigations carried out in relation to the plaintiff’s right shoulder have shown a tear of the rotator cuff (paras 78, 79, 85 and 86).
9 The plaintiff suffered further injury to her right shoulder in the second car accident on 31 March 2008, after which she attended the Emergency Department at the Northern Hospital (para 203).
10 Since that time, the plaintiff has had some additional difficulties with her right shoulder (para 202), of which she complained on examination with Mr Moran (para 217) and Dr Epstein (para 218).
11 The plaintiff continues to have constant right shoulder pain which, when at its worst, is a burning pain which goes from her shoulder into her neck area and down her arms and it can cause headaches. Of recent times she has had a problem with her left shoulder which has been investigated (paras 233 and 235).
12 Because of the problems with both upper limbs, the plaintiff has difficulty with a variety tasks, as detailed in paragraphs 66 to 70.
13 As counsel for the plaintiff conceded in closing submissions,” the less strength of the two motions related to the specific incident”. I agree that this is the case.
14 I find that the plaintiff suffered a right shoulder injury in the incident. The defendant accepts that the plaintiff suffered a soft tissue injury to the right shoulder with at best a partial tear. Medical examiners have described this condition in slightly different terms at paragraph 245.
15 I accept the plaintiff continues to suffer right rotator cuff dysfunction however, I am not satisfied that any right shoulder impairment relating to the incident is serious.
16 I do not accept that any impairment to the right rotator cuff results in an inability to engage in suitable employment. The plaintiff’s problems in this regard relate to her bilateral upper limb condition.
17 Further, the level of treatment received in relation to the right shoulder condition is minimal and has not been ongoing.
18 The plaintiff’s right shoulder condition worsened following the second car accident and her level of movement found on examination by Dr Lange decreased thereafter compared to her movements found by him before the car accidents (paras 134 and 150). Further, Mr Miller found that the plaintiff’s present shoulder condition is bilateral in nature and was predominantly due to capsulitis (para 108). The plaintiff herself now complains of pain in both shoulders.
19 Taking into account all the evidence, I am not satisfied that the plaintiff has a “serious injury” in relation to her right shoulder.
20 Accordingly, the Originating Motion number CI-09-01254 is dismissed.
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