Salita v Eastern Health
[2018] VCC 1125
•27 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04871
| PATRIA SALITA | Plaintiff |
| v | |
| EASTERN HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 July 2018 | |
DATE OF JUDGMENT: | 27 July 2018 | |
CASE MAY BE CITED AS: | Salita v Eastern Health | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1125 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right shoulder over the course of employment as a nurse – further aggravation in assault by a patient – whether injuries to be treated separately – whether consequences of each injury may be aggregated – disentangling of consequences from first injury and second – disentangling from other unrelated injuries and conditions – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; O’Neill v TD Williamson Australia Pty Ltd [2008] VSC 398
Judgment: Leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Angenent | Patrick Robinson & Co |
| For the Defendant | Ms F C Spencer | IDP Lawyers |
HIS HONOUR:
Preliminary
1 Mrs Salita trained as a nurse in the Philippines. She migrated to Australia in 2003 and has worked as a nurse at the Box Hill Hospital since. The work was relatively heavy and in particular, required her to lift and manoeuvre patients.
2 In March 2001, she began to experience pain in her right shoulder which gradually increased with time. She went to see her general practitioner, was referred for an ultrasound and to an orthopaedic surgeon, Mr Trung Nguyen. He undertook an MRI examination which showed a full thickness tear to the supraspinatus tendon, thickening of the bursa, and rotator cuff tendinosis. On 8 April 2011, Mr Nguyen undertook a repair and an arthroscopic subacromial decompression of the right shoulder.
3 After a period of rehabilitation, Mrs Salita returned to her full nursing duties. According to her affidavits and evidence, she was never free of right shoulder pain and was restricted, in particular with heavier lifting duties.
4 On 11 May 2015, she was assaulted by a patient at the Box Hill Hospital. He punched her with some force to the right shoulder. She suffered an aggravation of pain to that area.
5 After a further relatively brief period of rehabilitation, Mrs Salita again returned to nursing duties at the hospital.
6 An MRI scan of the right shoulder of 14 December 2017 concluded:
“1. No significant glenohumeral joint effusion.
2. Mild supraspinatus tendinosis with tiny intrasubstance tear posteriorly.
3. Minimal subacromial bursal effusion only.
4. Small biceps sheath effusion.”[1]
[1]Plaintiff’s Court Book (“PCB”) 72
7 Mrs Salita has remained working as a nurse, certified fit for full bedside duties.
8 Over more recent years, she has developed problems with her neck, lower back and hip, and has sought medical treatment from her general practitioner and from the Donvale Rehabilitation Hospital (“Donvale”) for those problems.
9 As a result of her right shoulder injury, she claims a range of consequences, including ongoing constant pain with very acute exacerbations from time to time depending upon the activities in which she is involved, the need for medication, including Mobic and Panadol Osteo, treatment by physiotherapy and exercise, restrictions in her capacity to carry out her work as a nurse, restrictions in a range of domestic duties, an effect upon her sleep and her capacity to interact with her grandson.
10 This is a “serious injury” application. Leave is sought in respect of pain and suffering only. The body function said to be lost or impaired is the right shoulder.
11 At the outset, Ms Spencer, for the defendant, identified the issues in the application as:
· The injuries to Mrs Salita’s right shoulder over the course of her employment and in respect of the incident of 2015, and the consequences which flowed, had to be regarded separately, and could not be aggregated (“aggregation”).
· The medical and other evidence in support of the application had not disentangled the consequences of each separate right shoulder injury, and there was a further disentangling exercise in relation to unrelated injuries and conditions to Mrs Salita’s lower back, neck and right hip (“disentanglement”).
· When the consequences of each of the right shoulder injuries were assessed separately, those consequences did not meet the “very considerable” test when regard was had to other cases in the range of possible impairments and losses of body function (“range”).
Aggregation
12 It is clear that the mechanism of injury suffered on each occasion to Mrs Salita’s right shoulder, were quite different. I accept that over the course of her nursing duties at the hospital, she was required to perform heavy regular lifting, as a result of which she commenced to suffer pain in the right shoulder in 2001. She was diagnosed as suffering a tear to the supraspinatus tendon which required operative repair. I further accept that as a result of the assault in 2015, there was an aggravation of that injury.
13 Ms Spencer took me to a number of authorities which emphasised that if an injury arose in separate events, even to the same body function, then the consequences had to be treated separately.[2]
[2]Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511 at paragraphs [5] and [25]-[29]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [31]-[35]
14 Generally, I accept that the Court should assess the consequences of an injury which has been sustained as a result of a single event to the exclusion of other injuries or events. However, there are many examples of where regular and repetitive tasks are undertaken in the course of employment, such as a worker on a production line, where it would be impossible to determine what consequence arose from each particular task involved. That situation has been acknowledged by the authorities,[3] and regularly injuries which have occurred “over the course of employment” are the subject of a single application to the Court. An obvious example is the nursing duties over the period of the plaintiff’s employment up to 2011 in this application.
[3] See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [89]; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; O’Neill v TD Williamson Australia Pty Ltd [2008] VSC 398 at paragraph [107]
15 While each case must be determined on its own facts and circumstances, I am satisfied that given the different mechanism of injury, and the different timing of the mode of occurrence of injury, the “course of employment” injury which gave rise to the supraspinatus tear, should be regarded as separate and distinct from that caused by the assault in 2015.
16 In the course of submissions, Mr Angenent, for the plaintiff, although not conceding the point, acknowledged that it was open to the Court to find the consequences of each injury should be looked at separately. He went on to submit that the more significant injury was the course of employment injury which led to the surgery in 2011, the consequences of which, he submitted, were both serious and long term.
Disentanglement
17 The onus is upon the plaintiff to disentangle the consequences not only as between the respective shoulder injuries, but also in relation to the other injuries or disorders to the plaintiff’s neck, lower back and hip. It is clear that the application has been prepared on the basis of the aggregation of the right shoulder injuries, and there is little medical evidence which looks at each injury separately.
18 It is necessary to look in some detail as to the course of the right shoulder injury from 2011 to 2015 and from that time through to the present.
19 Mr Nguyen undertook surgery to repair the supraspinatus tear in May 2011. In June 2011, Mrs Salita returned to work on light duties. She saw a physiotherapist, Mr Dong, who provided an exercise regime which she said helped manage her injury. In November 2011, she undertook rehabilitation at Donvale, which included physiotherapy, hydrotherapy and occupational therapy. The course went over eight weeks. She also did a gym program.
20 In 2012, she returned to bedside nursing duties, although said she avoided heavier lifting and the more difficult tasks involving use of the right arm and shoulder. According to a report of the surgeon, Mr Nguyen, of January 2012,[4] he said Mrs Salita had more than 95 per cent of a normal shoulder range, with some problem with internal rotation. He expected that she would shortly be “back to normal”. He suggested ongoing physiotherapy and anti-inflammatories. She did not return to see Mr Nguyen.
[4]Defendant’s Court Book (“DCB”) 260
21 In January 2012, Mrs Salita was examined by Mr David Barton, occupational physician.[5] On examination, he said there were no particular areas of tenderness over the right shoulder and a near full range of movement. He thought she was 80 per cent better, with some limitation of right shoulder movements. She complained to him of neck pain. He thought that she had mostly recovered from her right shoulder condition.
[5]DCB 55
22 Over the period from August 2012 until April 2015, Mrs Salita went to see her long-term treating general practitioner, Dr Jaime Cayetano. Despite regular attendances, there was almost no references to any problem with the right shoulder until the assault of 2015. From time to time, Mrs Salita complained of pain in her neck and back. In explanation, Mrs Salita said that she did mention her shoulder to her general practitioner, but he may not have recorded it. While undoubtedly a general practitioner’s clinical notes do not record everything that is said in the course of a consultation, and medical conditions which are relatively stable often do not warrant comment in the clinical notes, nonetheless I find it difficult to understand if, as Mrs Salita claims, she was suffering constant aching in the shoulder, the general practitioner did not record any complaints of pain or restriction.
23 Further, in Dr Cayetano’s report of 8 April 2018, he recorded that after a period of rehabilitation from surgery in 2011, over the next several years, Mrs Salita experienced “occasional pain” to the right shoulder. He further noted that she had not “completely” recovered from her right shoulder condition, implying there had been significant recovery.
24 In June 2012, Mrs Salita was cleared for a return to work for full duties, and no further WorkCover certificates were issued.[6]
[6]DCB 227
25 It is clear from the records of the general practitioner over the period from 2012 to 2014, Mrs Salita had significant problems, in particular, with her neck. She was treated with Mobic, an anti-inflammatory and pain-relieving medication, sent for x-rays and again referred to Donvale for treatment of neck and “spasm of trapezium”.[7] The pain was said to be chronic.[8] She complained to Dr Cayetano in January 2014 of neck discomfort radiating to the arms for one year.[9] The diagnosis was apparently soft-tissue injury to the cervical spine. She was treated by Ms Poon, physiotherapist, in August 2014 for chronic neck and left shoulder pain.[10]
[7]Letter to Dr Gunaratnam, DCB 229, 233
[8]DCB 253-4
[9]DCB 208
[10]DCB 261
26 On 26 April 2015, Mrs Salita was assaulted by a patient in the hospital and punched to the right shoulder. She saw her general practitioner the next day and was certified for time off work. A second WorkCover claim was lodged.[11] She suffered a significant psychological reaction to the assault, although in her affidavit sworn in 2018, she said that the psychological problems had diminished over time. She was again prescribed Mobic and was certified as unfit for work.
[11]DCB 29
27 In July 2015, Mrs Salita was again referred to Donvale. According to a report of Dr Michael Woodward of 30 June 2015, after the surgery of 2011, “[s]he subsequently had no shoulder symptoms until this [2015 assault] injury”.[12] In August 2015, she returned to work. She was prescribed Mobic in 2015.
[12]DCB 240
28 In September 2015, Mrs Salita was certified as fit to return to her normal unrestricted work duties with bedside nursing. The general practitioner’s notes record “occasional right shoulder pain”.[13] For a period, she had problems with her right knee.[14]
[13]DCB 277
[14]DCB 277
29 Over the period from 2015 to 2017, Mrs Salita again attended her general practitioner regularly. Again, there is little if any reference to problems with her right shoulder. There are various complaints, including coughs, colds and sore throats, references to knee pain, left-sided chest pain and various other unrelated medical issues. Again, it is surprising that, given Mrs Salita says she was in constant pain with the right shoulder, that there is no record of any such pain or restriction in those notes. According to those clinical notes, there is an entry of April 2017 regarding a request from Mrs Salita’s solicitors for a medical report. There was some difficulty obtaining the appropriate notes from another clinic. Further the notes record:
“… and the last consultation regarding her right shoulder was in December 2015 for full duties of her right shoulder, advise unable to report.”[15]
[15]DCB 270
30 In May 2016, Mrs Salita was referred back to Donvale for neck and low back pain.[16] An x-ray showed moderate degenerative change to the L4-5 facet joints.[17] Neck pain was said to be “the biggest concern”,[18] and affected walking, sitting, work and washing dishes. According to the general practitioner’s clinical notes, the neck pain was said to be chronic. Osteoarthritis was diagnosed and surgery discussed.[19]
[16]DCB 200
[17]DCB 264
[18]DCB 247
[19]DCB 199
31 In July 2017, Mrs Salita attended her general practitioner for hip pain and was prescribed Mobic. She was referred for an ultrasound.[20] The same month, she was referred to a physiotherapist for management of low-back pain which, according to the physiotherapist, caused aggravation of hip pain while standing at work.
[20]DCB 195
32 In August 2017, Mrs Salita was again referred to Donvale for neck, shoulder and low-back pain. According to Dr Ang, a rehabilitation physician at Donvale, Mrs Salita’s “current issues” were lumbar and sacroiliac pain. There was a “past history” of right shoulder pain in 2015, and right shoulder subacromial decompression in 2011. There was no reference to any current complaint of right shoulder problems. Treatment, including physiotherapy, occupational therapy and hydrotherapy were said to include the shoulder and spinal areas.
33 The clinical records of the general practitioner in 2018[21] made reference to chronic neck, right shoulder, lower back and right hip pain. Right shoulder pain was said to be “on and off”.[22] A “GP Management Plan” of 18 July 2018 referred to a range of treatment, including for osteoarthritis, for the spine and shoulder, and physiotherapy.
[21]Exhibit 2
[22]DCB 268
34 A number of consultant medical practitioners have provided reports.
35 Mrs Salita was examined by Mr Thomas Kossmann, orthopaedic surgeon, in January 2018. He obtained a history of the 2011 surgery and the 2015 incident. She complained to that practitioner of ongoing pain, not only in her right shoulder, but also in her neck and back. She said that her neck pain had an effect upon her social, domestic and recreational activities. He described the shoulder injury as:
“Right shoulder severe supraspinatus tendinopathy with full thickness tear anteriorly, intra-articular long head of biceps tendinopathy, acromioclavicular joint arthropathy and a laterally downsloping acromial with associated moderate subacromial bursitis.”[23]
[23]PCB 48
36 Mr Kossmann said she would require further treatment for her right shoulder condition, including anti-inflammatory medication, physiotherapy, hydrotherapy, and possibly acupuncture. He said she would benefit from a steroid injection, and may require further surgery in the form of arthroscopy. There was a risk of development of osteoarthritis. He said her right shoulder condition had an impact upon her social, domestic and recreational activities. Unfortunately, Mr Kossmann’s report does not discriminate between the course of employment injury, culminating in surgery in 2011, and the 2015 assault.
37 Mrs Salita was examined in April 2018 by Dr David Middleton, occupational and rehabilitation specialist. He referred to the mechanism of the two injuries. Mrs Salita told Dr Middleton that she had never fully recovered from the first injury and her shoulder was painful, in particular when reaching out and doing pressure care. She described a restriction in a range of domestic activities, including cooking, dishwashing, cleaning, gardening and shopping. She said she could not pick up her grandson. There is little reference to problems with the neck, back and hip.
38 It is clear Dr Middleton, when assessing the present nature of Mrs Salita’s right shoulder condition, has aggregated the impact of the 2011 and 2015 injuries. He thought it likely she suffered restrictive capsulitis, which he suggested could be treated with hydrodilatation. He said a range of domestic, recreational and employment-related duties were affected because of her right shoulder problem.
39 Mrs Salita was examined by Mr Michael Troy, surgeon, in July 2015, shortly after the assault. He noted the original surgery had been successful. By the time she saw Mr Troy, she had returned to work on full hours. He said her then current right shoulder incapacity related to the injury of April 2015, as a result of which she was suffering tendinosis and bursitis to the right shoulder.
40 Dr David Barton, occupational physician, examined Mrs Salita in August 2011. At that time, she was still having physiotherapy regularly and taking Mobic and Voltaren. She described pain around the shoulder area, present all the time, and made worse by use of the right arm. Sleeping was a problem, and right shoulder movements limited. He suggested a range of restrictions in employment tasks.
41 Dr Barton examined Mrs Salita again in January 2012, by which time she was working her pre-injury hours – 64 hours per fortnight – restricted so that she was not required to use her arms above shoulder height and lift weights of greater than 7 kilograms. She described to Dr Barton that she was 80 per cent better, but with some ongoing shoulder pain and neck pain. He thought she was able to undertake all activities of daily living and her regular work duties. He said that he thought she had recovered from her shoulder condition.
42 I found the opinions of these various consultant practitioners of limited value. Firstly, they did not have available all of the treating general practitioner’s clinical notes, in particular the fact that she made very few records of complaints of right shoulder problems, and received very little treatment, over the periods from 2012 to 2015, and then again after the assault through to the present time. Neither did they have available all of the information about the other physical conditions. Further, and of significance in the issue of disentanglement, is that no practitioner has looked at each of the right shoulder injuries separately and assessed the consequences.
Range
43 The plaintiff’s affidavits in support of the application, including the affidavits of her husband, and friend, Mrs Shin, suffer from the problem that the consequences of the two shoulder injuries have not been disentangled. Nonetheless, the plaintiff alleges the following consequences have arisen as a result of the right shoulder injury:
· She suffers constant pain in her right shoulder which fluctuates in severity. At times, she experiences a catching sensation in her shoulder which she says feels like a hot knitting needle piercing the shoulder joint.
· She takes medication for the shoulder, including Panadol Osteo and Mobic. She uses a warm wheat bag after work.
· She suffers a range of restrictions in relation to her work. Moving patients is difficult. Almost every task at work requires forceful use of her right arm and causes an increase in pain. She struggles manoeuvring patients. She receives assistance from her workmates. She enjoys her nursing profession less and is tired at the end of the day.
· She has remained working the same hours, even increasing her hours, as she and her husband have a mortgage to pay off.
· She is restricted in outdoor activities, including gardening, which she previously enjoyed.
· A range of domestic duties are affected. She is unable to cook as before. Washing dishes causes her shoulder to ache. She is restricted in her shopping capacity.
· She is not able to look after her grandson as she would wish.
· Getting dressed is difficult.
· Her social life is affected.
· She suffers trouble with sleep as she wakes when she lies on her right shoulder.
· She sees her general practitioner regularly and still has physiotherapy, and over recent years, undertaken a pain management program at Donvale.
· She acknowledges that she suffers pain and restriction in her lower back and neck, but her shoulder pain is the worst.
44 Mrs Salita was questioned extensively in cross-examination as to the impact upon her of her other injuries and restrictions, in particular to her neck and lower back. Regularly in the course of her evidence, she could not recall aspects of the treatment to these areas. She acknowledged that they caused some inhibition to her domestic and recreational duties and some restriction at work, although maintained that the worst problem was her right shoulder.
45 Aside from the surgery in 2011, and treatment at Donvale, Mrs Salita receives no specialist treatment. I am satisfied from the clinical notes of the general practitioner that the prescription of pain-relieving and anti-inflammatory medication is not only for her right shoulder, but also her neck and lower back. Further, it is clear that her attendances upon the general practitioner over recent years have been for a raft of conditions, and only rarely for her right shoulder problem.
46 I accept the submission of Mr Angenent, for the plaintiff, that in respect of the 2015 assault, there was a psychological sequelae of which have now largely resolved.
47 Not only has Mrs Salita returned to her usual nursing duties, but in fact has increased her hours over the period since 2016.[24] Her hours have increased on occasions to 72 hours per fortnight. In the course of cross-examination, her response to this increase was that, firstly, she received assistance from co-workers to enable her to cope with the duties; secondly, she was concerned not to make complaints of right shoulder pain and restriction at work for fear of losing her job, and, thirdly, she and her husband had a large mortgage to repay, and his work hours had been recently reduced.
[24]See exhibit 3, summary of hours worked
48 On behalf of the defendant, affidavits of co-workers, Mr McCrohan, Ms Pelayo and Mr Joseph, were tendered into evidence. The plaintiff tendered an affidavit of a co-worker, Mrs Shin. Mrs Shin noted some of the plaintiff’s tasks were difficult as they caused shoulder pain. She said she complained to someone as a result. According to the affidavits tendered on behalf of the defendant, no complaints of any problems were made to the managers at the hospital. None of them observed the plaintiff having any difficulty with tasks, and all said she was able to undertake full nursing duties without any restriction.
Analysis
49 Given my earlier findings, I am of the view it is not permissible for the plaintiff to aggregate the consequences of the course of employment injury, with those which followed the assault. I accept Mr Angenent’s submission that, of the two injuries, the more significant is that which occurred over the course of Mrs Salita’s nursing employment, culminating in the surgery in 2011.
50 The onus is upon the plaintiff to disentangle the consequences of that injury from those arising from the assault, and the injuries and restrictions affecting her lower back and neck. That onus has not been discharged in this proceeding. There is no clear medical evidence to identify and analyse the consequences which arise from the course of employment injury. Even if I accept that the earlier injury is the more significant, involving a tear to the supraspinatus tendon, operative repair and a significant period of rehabilitation, I am of the view that the consequences, when viewed at the present time, do not meet the “very considerable” test the legislation requires.
51 Of the various consequences which Mrs Salita says she suffered, a number are related, at least in part, to her neck and shoulder injuries. It is clear that the pain and restriction in those areas compromises to some extent her work capacity, her sleep, her requirement for medical treatment and medication. I am also satisfied that a range of domestic duties are also involved. It is, frankly, difficult to work out the extent to which the restrictions are related to her right shoulder problems, and to those other areas of her body.
52 Of the other various consequences, Mrs Salita claims that she has never been without pain in the right shoulder, with severe exacerbations, and in addition, she is restricted in her nursing employment when she has to use her right arm for forceful movements, lifting heavier patients and the like.
53 In relation to her claim for ongoing pain, I am not satisfied that has been the case. An examination of the clinical records of her general practitioner would indicate there is no record of complaints of pain or referral for treatment for very significant periods from 2012 to 2015, and then again after the assault. I prefer the opinion of her general practitioner that her shoulder injury has caused occasional pain with only occasional need for treatment.
54 Of significance, is the fact that she has not only been able to maintain full-time pre-injury employment, but has also sought to increase her hours. I do not accept her explanation that she is reluctant to make complaints of pain and restriction for fear of losing her job. By the very issue of this proceeding, her employer is clearly on notice of the claim. I prefer the more comprehensive evidence of her managers that not only have they not received any complaints from her, but observed her being able to undertake her full nursing duties without restriction. I do accept that she is a hardworking person and that her substantial mortgage and her husband’s reduced working hours have acted as a motivation for her to remain working. But, had she been in the constant pain that she claims, it is difficult to understand how she would not confide in her respected and competent general practitioner of her problems. At one point in cross-examination she said she preferred to “save up” her private health insurance for her neck and back problems. This explanation defies logic, given she says her shoulder pain is the worst.
55 Much of her evidence when challenged on these issues was unsatisfactory. She regularly said that she was unable to recall inconsistencies in the medical records. I do not accept that her complaints of pain and restriction in the right shoulder are nearly as severe as she would have it.
56 While I accept that she does have some occasional pain in the right shoulder and some moderate restriction in some movements of the right arm, those consequences do not meet the “very considerable” test the legislation requires. Her application should be dismissed.
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