Sheppard v Wesfarmers Ltd
[2015] VMC 22
•19 June 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT BENDIGO
E12067742
| BRADLEY JOHN SHEPPARD | Plaintiff |
| V | |
| WESFARMERS LTD | Defendant |
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MAGISTRATE: | Magistrate B.R. Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 June 2015 |
DATE OF DECISION: | 19 June 2015 |
CASE MAY BE CITED AS: | Sheppard v Wesfarmers Ltd |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Accepted Claim for Impairment Benefits – Whether Later Injuries at Home Consequential upon Original Injury – Causation – Accident Compensation Act ss 98C, 104B.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Roche | Arnold Dallas McPherson |
| For the Defendant | Ms L Glass | Hall & Wilcox |
HIS HONOUR:
1 Mr Sheppard seeks a declaration for s.98C of the Accident Compensation Act 1985 (“the Act”) that he sustained work-related injuries to his left arm, more particularly being a rupture of the left biceps tendon on 18 July 2012, and separately, a fracture to the proximal ulna of the left arm on 20 September 2012. Wesfarmers, a self-insurer, accepted liability for a right arm injury on 9 January 2012, but denied liability for the left arm injuries.
2 Both of the later traumatic injuries occurred away from the workplace in separate incidents. Mr Sheppard alleges that both injuries were consequential upon the accepted work related injury to his right arm which occurred on 9 January 2012.
3 Both Counsel agreed on a statement of facts with Mr Sheppard called to expand upon, and be cross-examined on, his evidence. Otherwise, both Counsel tendered medical reports only.
4 Mr Sheppard is a 42 year old right hand dominant man who has been employed by Wesfarmers since 1989. He progressed from being a night time supermarket filler to the full time night manager.
5 He had an accepted work-related injury being rupture of the right distal biceps tendon when stocking and lifting pallets on 24 October 1998. He underwent surgery, was off work for four months and gradually returned to full pain free function.
6 Unfortunately, he developed a carcinoma of the colon in 2007 and was off work for 18 weeks. Again, after a period of light duties he returned to full time work.
7 More importantly, he suffered another accepted work-related injury to his right arm on 9 January 2012, again when lifting and stacking pallets. This was diagnosed as tendinosis or tendinitis of the right biceps tendon. He has not returned to work since then, except for one week when he attempted part-time light duties in December 2012.
8 He had an ultrasound to the right arm on 3 February 2012 and an MRI on 21 May 2012. On 21 June 2012, he had an ultrasound guided cortisone injection without any benefit. An orthopaedic surgeon, Mr Huw Williams, treated him at that stage.
9 As at 18 July 2012, he remained in receipt of weekly payments and reasonable medical and like expenses for the 9 January 2012 injury.
10 At about 10 am on 18 June 2012 he was at home. There was a bedroom vertical sash window which was slightly open. He decided to open the window further to get some fresh air. The sash window had two grips on either side of the horizontal bottom rail to allow the window to be lifted up. He had opened the window many times before using both hands to lift the window by both grips.
11 However, on this occasion because of his injured right arm he tried to lift the window using only his left hand to hold the left side sash grip only. He said that there may have been a slight sideways tilt movement as he lifted it. It was harder to lift with one hand. As he pulled the sash grip up with some force using four fingers underneath, he felt a jolt or tear inside the left elbow. At the same time there was a “crack” or “pop”-type noise.
12 He had pain and saw his GP who referred him back to Mr Williams who performed a left distal biceps tendon repair. He was in plaster for two to three weeks and then his left arm was in a sling. He said he was concerned that he was putting on weight and started walking more.
13 On 20 September 2012 he went for a walk around a nearby lake. As he was walking home, he tripped on a nature strip and fell onto a concrete driveway. His left arm was in a sling across his body. He landed on that left arm, as well as his right arm and face, onto the driveway. He felt further immediate pain to the left arm, but does not remember any specific pain to his right arm.
14 Subsequently to that, a fracture was diagnosed through the left proximal ulna. His left arm was put into plaster for a few weeks.
15 That completes a summary of the agreed facts and his viva voce evidence.
16 Two reports from his treating orthopaedic surgeon, Mr Huw Williams, were tendered, one by each party. I will summarise only the relevant aspects to this case.
17 Mr Williams initially treated Mr Sheppard for the 9 January 2012 right arm injury. An MRI scan found the right biceps tendon intact, but there was evidence of some tendinosis or inflammation of the tendon. An ultrasound guided injection of cortisone was undertaken. There was no immediate relief of pain and no lasting effect. He was unable to suggest any other particular intervention likely to improve his situation at that time. He thought at that stage Mr Sheppard should consider alternative duties.
18 Mr Sheppard then returned to him on 8 January 2012 giving a history of sudden severe pain in the left elbow after opening a sash window a couple of weeks earlier. Ultrasound revealed a rupture of the left biceps tendon. He had been using the left arm to open a window as the right arm was too sore. He had been using the left arm more to perform tasks far more than normally would have been the case.
19 Mr Sheppard told him that he "did not feel opening the window was a particularly strenuous activity." This was the only relevant activity. Mr Williams repaired the left elbow biceps tendon avulsion on 31 August 2012.
20 He then returned to see him again in the Emergency Department at the Bendigo Hospital on 20 September 2012. He had been walking and stumbled and fell on his left elbow sustaining a fracture.
21 Mr Williams stated "it was evidenced during the surgical treatment of the left biceps tendon and repair there had been some inadvertent intraoperative damage" to the proximal ulna creating an area of weakness and the fracture occurred through this site. The ulna was immobilised to treat the ulna shaft. Mr Sheppard had stated the left biceps tendon rupture at the elbow occurred in mid to late July 2012 when he was using the left arm to open a window. The use of the left arm was due to his inability to use the right arm for the task. Therefore, he said there was a relationship to the original right arm work related injury and this "was partially compensable."
22 Further, he had subsequently developed a fracture to his proximal ulna "the cause of which could be partially attributed to the fact that he had surgery on his left elbow." In a later report, he noted the "most unusual situation of having two bicep tendon ruptures of the elbows at a relatively young age." No other treating doctors' reports were tendered
23 An independent medical examination report from Dr Clayton Thomas, rehabilitation pain specialist, was tendered which did not address any of the relevant issues.
24 He had been examined by Dr Tony Kostos, an independent medical examiner rheumatologist, on behalf of Wesfarmers on 9 May 2012 about ten weeks before the sash window incident. Dr Kostos noted the earlier avulsion to the right biceps tendon requiring surgery. He noted "this is an unusual injury and generally requires a considerable amount of force to have occurred." He thought at that stage the continuing symptoms to the right biceps tendon justified an MRI, which was later performed. He thought that surgery may still have been required then.
25 Dr Roy Karna, rheumatologist, examined and assessed the injuries to both arms for s.98C benefits on behalf of Wesfarmers. He took a similar history of the two later incidents as related to Mr Williams. He thought that the question of the left biceps tendon rupture was really a legal issue as to compensability. He offered no opinion on the issue as to the fracture to the left elbow because of "inadvertent fracture" and said "more information is required" from the treating surgeon. This does not seem to have been later taken up with him or the treating surgeon further.
26 Finally, he was examined by a Mr Vasudeva Pai, an orthopaedic surgeon, who examined him as an independent medical examiner on behalf of Wesfarmers on 26 October 2012. Again, there was a similar history of the two relevant incidents in July 2012 and September 2012.
27 Mr Pai thought that the left biceps tendon repair was because of tendinosis. He said this was not uncommon in males of his age group. He said it was documented that a tear of the biceps tendon in one elbow predisposes rupture on the other side of more than four times the normal population.
28 The two important factors in the left biceps tendon were pre-existing tendinosis and the sudden jerking force with the elbow in a flexed and supination position. As for the relationship of the ulna fracture after the fall to the biceps tendon surgery, he did not think there was a relationship. He said the drilling for the bicep tendon is usually performed on the radial tuberosity of the radius which was he said confirmed on X-ray. That drilling does not cause weakness in the ulna.
29 However, he stated he did not have the original operative notes. He only refers to a number of radiological reports. He stated that fracture of the ulna following biceps tendon repair to the radius is not considered to be a complication of surgery on evidence-based medicine. Mr Pai’s report does not seem to have been sent to Mr Williams for opinion, nor were Mr Williams' operative notes apparently sent to Mr Pai.
30 That completes the evidence before me in this matter. Both Counsel were very brief in their submissions.
31 Counsel for Wesfarmers submitted that both the later incidents occurred outside the workplace and that Mr Sheppard carried the burden of proof. The left tendon injury was caused by lifting the window and the fracture occurred in a fall with possible contribution by the earlier injury. She adopted Mr Pai's argument that there was pre-existing left sided tendon degeneration and that the fracture was consistent with a simple fall. She noted Mr Williams referred to the window lift as "not particularly strenuous."
32 She based her arguments also on the issue as to whether employment was a “significant contributing factor”, as defined in s.5(1B) of the Act, to the left biceps tendon injury. Adopting Mr Pai's views as to the pre-existing tendinosis and Mr Williams' reference to a “not particularly strenuous” lift, she said factors (d) “probable development outside work”, (e) “hereditary risks” and (g) “activities outside the workplace” militated against employment as a significant contributing factor to the later injuries. There was no evidence that lifting the window with both hands would not have caused the injury anyway.
33 She submitted the later fall incident was even more remote. She said that if I accept that there was a weakness consequential upon the biceps repair surgery, then the fracture was consequential upon the tendon surgery. She agreed that there was no evidence of the surgery being a “novus acts interveniens”. No submission was made on that aspect.
34 She said that the dicta of Ashley J in Popovski v Ericsson [1998] VSC 61 at para. 67 did not assist Mr Sheppard. Here there were circumstances fitting within the sub-paragraphs of s.5(1B) that were disadvantageous to Mr Sheppard.
35 Counsel for Mr Sheppard said that the references to significant contributing factor as to the left biceps tendon rupture and the later ulna fracture were misconceived. This was only relevant to the initial injury to the right biceps tendon. These left sided injuries were consequential to the initial traumatic injury at work. He said it was only necessary to determine whether the left biceps tendon injury and the ulna fracture resulted from the initial injury.
36 He referred to Hill and Bingeman's “Principles of the Law of Workers Compensation” (1981) at p.74 in which the authors discuss cause and effect as to the relevance of incapacity to injury. Their discussion is in the context of a claim for weekly payments. I will go into that aspect later.
37 He submitted that it was irrelevant whether or not there was pre-existing tendinosis to the left biceps. There was no doubt that Mr Sheppard's left tendon injury was the result of lifting the window with his left arm only because he was unable to use the right arm as a result of the accepted work related injury to that arm.
38 That was the limit of both Counsels' submissions.
39 Pursuant to s.98C(1):
"A worker who suffers an injury which entitled the worker to compensation is in respect of an injury resulting in permanent impairment and is assessed in accordance with s.91, entitled to compensation for non economic loss calculated in accordance with this section.”
40 Of course, s.91(2) excludes from assessment any psychiatric injury consequential upon a physical injury. However, that is beside the point in looking at the initial question of injury in s.98C(1). The real question is whether or not he has suffered an injury, or injuries, which entitle him to compensation (see, Linfox v Toohey [2004] VSCA 233 at para 17). A consequence may have a multiplicity of causes, including compensable injury, leading to entitlement under the Act (see, Grech v Orica [2006] 1 VR 602 at para. 58, per Ashley JA).
41 I now turn to the issue of causation. Section 51 of the Wrongs Act 1958 addresses the issue of causation to claims for damages resulting from negligence and alters the common law position. However, s.45(1)(b) of that Act specifically excludes claims for benefits under Part IV of the Accident Compensation Act. Thus, the common law causation needs to be considered. I believe the leading common law case as to causation is still March v Stramare Pty Ltd (1991) 171 CLR 506.
42 In the past the “but for” test had been used in considering compensation. However, as Mason CJ pointed out at p.516 of that judgment, this gives rise to difficulty in cases "where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury." Application of the “but for” test would mean none of those acts was a cause. The “but for” test was not a definitive test of causation (see, Toohey J at p.524).
43 The High Court stated that though causation is a question of fact "the question of whether conduct is a cause of injury remains to be determined by a value judgment including ordinary notions of language and common sense." (see, Deane J at p.524). I also refer to Zlateska v Consolidated Cleaning [2006] VSCA 141 at para. 82.
44 I now turn to my findings in this case. There is no doubt that Mr Sheppard injured his right sided biceps tendon in the lifting injury at work on 9 January 2012. This was diagnosed as a tendinosis without a tear. He had a number of tests and eventually a CT guided injection on 21 June 2012.
45 Within a few weeks, on 18 July 2012, he tried to open a sash window with his non-dominant left hand only. The sash window did not have a single central sash grip, but rather two sash grips on either side of the bottom rail. Neither Mr Williams nor Mr Pai took any history of this.
46 It is not doubted that he had pre-existing degeneration to the left biceps tendon and that the single pull up of the sash window ruptured his left biceps tendon. A pre-existing degeneration in the left biceps may have been more likely to lead to a biceps rupture in such circumstances.
47 Mr Sheppard thought there may have been some sideways movement by lifting the left sided sash grip. This certainly would have made the lifting harder as the window would not have gone up as easily in a straight manner. He said he had always used both hands before to hold both grips to lift the window, which would have made it easier to lift the window evenly.
48 Adopting the common sense test set out in March v Stramare, the left biceps rupture was thus causally related to his work-related right tendon injury. If in fact he had developed a secondary anxiety and depression as a result of not being able to do tasks such as opening windows, this would not have been any different. Certainly, it is common for injured workers to develop anxiety and depressive symptoms as a result of physical injuries leading to frustration, pain and loss of self-esteem, etc.
49 I agree with Counsel for Mr Sheppard that it is not necessary for employment to be a significant contributing factor to a discrete left biceps tendon tear. The left biceps tendon tear was part and parcel of the original right-sided injury. It does not result in any separate weekly payment entitlement for a further prima facie 130 week period, or alternatively a s.98C payment outside the original date of injury.
50 As I have stated, it is not uncommon for workers to have secondary psychiatric or psychological issues consequential upon a work related physical injury. It is not necessary for a worker to show employment to be a “significant contributing factor” to a discrete consequential psychiatric or psychological condition. If the psychiatric or psychological condition is causally related to the original injury, then there is entitlement to workers compensation benefits as well for that aspect of the original injury (save where s 91(2) applies, as set out above).
51 As to the later ulna fracture, this is more complicated. The fall itself was not causally related to the original right arm injury. I believe the fall was too remote, despite the fact that he was trying to lose weight due to inactivity as a result of his 9 January 2012 work-related injury.
52 Mr Williams was frank in admitting there had been some “inadvertent” intraoperative damage to the proximal ulna. He said that the fracture occurred through that site. If that be correct then, as Counsel for Westfarmers conceded, it was consequential upon the left biceps tendon repair. On this basis it would also be part and parcel of the original work- related right biceps tendon injury.
53
Mr Pai refers to hearsay history from Mr Sheppard that Mr Williams told him the fracture occurred at the drill hole of the previous operation.
Mr Pai noted radiologically there was a drill hole on the radius. However, he stated he did not have Mr Williams' operative notes.
54 Mr Williams, in his earlier report, refers specifically to "Inadvertent operative damage to the proximal ulna", not the radius. Thus, it seems to me that Mr Pai and Mr Williams are talking about separate issues. Mr Williams does not refer in his report to drilling the ulna. He seems to be talking about something different.
55 Counsel for Wesfarmers does not, quite rightly in my view, submit that the intraoperative damage was a “novus acts intervenient”. The fracture occurred at the site to the operative damage according to Mr Williams. Thus, as a matter of common sense it seems to me that the fracture is also causally related to the left biceps tendon repair and thus due to the original work-related right biceps tendon injury. The fact that the fall itself cannot be related back to the original injury as being too remote is not relevant in that circumstance.
56 Mr Sheppard is entitled to a declaration that he has also sustained consequential injuries, namely a left biceps tendon rupture and left proximal ulna fracture as a result of the admitted work-related injury to the right biceps tendon on 9 January 2012.
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