Sprague v Monash Health
[2020] VMC 20
•28 September 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT
Case No. L10283346
| CATHERINE SPRAGUE | Plaintiff |
| v | |
| MONASH HEALTH | Defendant |
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MAGISTRATE: | M. HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24-25 August 2020 |
DATE OF DECISION: | 28 September 2020 |
CASE MAY BE CITED AS: | Sprague v Monash Health |
MEDIUM NEUTRAL CITATION: | [2020] VMC 20 (28 September 2020) |
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CATCHWORDS - Workers Compensation – Rejection of claim for weekly payments and medical and like expenses – Right shoulder injury - Two incidents occurring four months apart – Nurse has fall in a workplace incident that is reported to employer – A subsequent fall incident whilst on annual leave and not in compensable circumstances – No treatment in the intervening period - Claim lodged twelve months after the workplace incident - Whether employment a significant contributing factor - Credit of the plaintiff – Reliance by medical practitioners on plaintiff’s history – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 40(3)(c), Sched 1, Cl 25
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | M Y.C. Chen | Gordon Legal |
| For the Defendant | Mr R Paoletti | Hall & Wilcox |
HER HONOUR:
INTRODUCTION AND OVERVIEW
Ms Catherine Sprague, the plaintiff in this proceeding, has been a nurse all of her working life. She has worked in various hospital settings since her matriculation from high school over 40 years ago. In 2009, Ms Sprague commenced employment with the defendant, Monash Health. She has worked continuously for Monash Health ever since on an ongoing casual basis via its recruitment bank of casual employees.
On 18 April 2018, Ms Sprague, whilst on a shift at Monash Health’s Coronary Care Unit at Dandenong Hospital, was walking through the nurses’ station when she tripped over the leg of another nurse who had lunged backwards unexpectedly into her path. Ms Sprague fell to the floor onto her right hip and knee and slid across the floor striking her right shoulder on a metal trolley that held resuscitation equipment (‘the April incident’).
Ms Sprague logged an incident report with her employer. She did not, however, seek treatment nor did she lose any time from work over the next four months.
On 9 August 2018, whilst on annual leave and on a week’s skiing trip to Falls Creek, Ms Sprague fell over onto her right shoulder when stationery on her skis (‘the August incident’).
Following the August incident, she sought medical treatment for her right shoulder and, ultimately, in March of 2019, had surgery and time off work to recover from the surgery. She resumed pre-injury duties with the defendant from 6 July 2020.
A WorkCover claim in respect of the April incident for weekly payments and medical and like expenses was lodged on 29 April 2019, some twelve months after the April incident (‘the claim’). The claim was rejected by notice of the WorkCover Agent dated 28 May 2019.
Liability was denied by Monash Health for Ms Sprague’s claim. However, the defendant did not dispute that the April incident had occurred, but rather contended it was a minor incident and that any consequences were transient. It was not therefor a significant contributing factor to her right shoulder injury or condition. Accordingly, her incapacity for work following the surgery did not result from, nor was it materially contributed to, by her employment.
This proceeding relates to the rejected claim for compensation and is brought under the Workplace Injury Compensation and Rehabilitation Act 2013 (‘the Act’).
Conducted over two days as an online hearing via WebEx, oral evidence was given by Ms Sprague and by her treating orthopaedic surgeon, Mr Warwick Wright. Two lay witnesses for the defendant, Ms Jacqueline Thompson and Ms Christine Rasmussen, both Monash Health employees, were called. All other medical material was tendered into evidence by consent.
In my opinion, for the reasons which follow, Ms Sprague should have the relief which she seeks. I find that:
a. Ms Sprague suffered a right shoulder injury in the form of a rotator cuff tear and aggravation of underlying associated degenerative changes including subacromial tendinopathy and bursitis (‘the injury’).
b. Her employment with the defendant, specifically the incident on 18 April 2018, was a significant contributing factor to the injury;
c. She was incapacitated for work and, further, her incapacity for work resulted from or was materially contributed to by the injury.
THE EVIDENCE
Given the nature of the factual issues in dispute, it is convenient to consider the evidence in this matter in chronological sequence.
Ms Sprague, who was aged 62 years at the time of hearing, is right-hand dominant. At the time of the April incident, Ms Sprague was working on average 31 hours a week performing all the usual aspects of nursing.
Prior Right Shoulder Injury in 2008
Ten years previously, Ms Sprague had injured her right shoulder in a fall on her way to work. On 17 March 2008, she reported the injury to her GP, Dr Peter Dwyer, at the Albert Park Medical Centre. On examination, Dr Dwyer recorded: ‘numb over deltoid; unable to abduct’. A right shoulder dislocation was diagnosed.
After two hydrodilatation procedures, Ms Sprague consulted Mr Warwick Wright, orthopaedic surgeon. Mr Wright diagnosed adhesive capsulitis and performed a successful arthroscopic capsular release.
Ms Sprague lodged a WorkCover claim which was rejected. She did not pursue that further. After seven months off work, Ms Sprague resumed her usual duties and hours having regained full function of the right shoulder.
April 2018 Incident in the Workplace
On 18 April 2018 at Dandenong Hospital, Ms Sprague tripped and fell hitting her right hip and right knee on the floor and slid across the floor striking her right shoulder on the arrest trolley, a metal trolley containing resuscitation equipment. Ms Sprague was helped up. No treatment on the ward was given. Ms Sprague requested a shoulder x-ray but was told by staff she could not have one at Monash Health without having lodged a WorkCover claim.
An incident report was completed by Ms Sprague using the Riskman reporting system. Two sections required ‘free text’ responses and were completed by Ms Sprague as follows:
‘Summary: tripped accidentally by nurse in CCU. Fell heavily to floor hitting (R) shoulder hip and knee.
Further details: walking past CCU nurses’ station, nurse stepped leg back at time of passing causing me to trip. Fell heavily to floor, hitting arrest trolley with shoulder (R) and (R) hip and knee’.Additionally, under the section ‘Incident Assessment’, answers to four questions had to be selected from drop-down menu options. Ms Sprague’s responses were as follows:
·‘Actual Degree of Impact’: Answer: ‘Harm – No Loss/Reduction in functioning’.
·‘Actual Level of Care’: Answer: ‘No care required’.
·‘Actual Treatment Required’: Answer: ‘No treatment’.
·‘Overall Severity (Actual): Answer: ‘4. No Harm/Near Miss’.
Ms Christine Rasmussen, a nurse manager at Monash Health since April 2020, gave evidence about the Riskman system and the drop-down menu options. As to the fourth question of ‘Overall Severity (Actual)’, Ms Rasmussen said the menu options were:
1. Most Severe or Death or Severe;
2. Serious Incident,
3. Minor/requiring medical help treatment.
4. No Harm/Near Miss’.
The Riskman report was the most contemporaneous record of the circumstances of the incident. Ms Sprague’s answers, particularly to the drop-down menu questions, were the subject of detailed questioning in both evidence-in-chief and cross-examination. Ms Sprague, given the available options, said she selected the answers that most closely reflected the situation. As she had not had treatment after the incident and had continued working, her answers reflected that. In cross-examination, Ms Sprague disagreed that her answer to the ‘Overall severity’ question of ‘4. No Harm/Near Miss’ meant she had suffered no harm or injury at all. Rather, given she had not sought medical help, she considered she was precluded from selecting ‘3. Minor/requiring medical help treatment’.
Ms Sprague had a discussion with Ms Rasmussen regarding the April incident either that day or the next day. She agreed in cross-examination she had told Ms Rasmussen that she was okay, but her shoulder was sore. Ms Rasmussen recalled the conversation, although in cross-examination, she could not recollect whether Ms Sprague had mentioned the shoulder still being sore.
Period between the incidents in April and August of 2018
From the time of the April incident, Ms Sprague said her right arm felt heavy to lift and she had pain at the peak of her shoulder at the top of the humerus bone. In evidence-in-chief, Ms Sprague was asked to rate her level of pain before and after the incidents on a scale of 0 to 10 with 10 being the worst pain imaginable. Prior to the April incident, her level of pain was 0 out of 10 whereas she said after the April incident, her right shoulder pain was 8 out of 10 if she attempted to lift her right arm above shoulder height. After the August incident, her right shoulder pain was 9 out of 10 if she attempted to lift her right arm above shoulder height.
At no stage between the two incidents did Ms Sprague consult her GP or seek treatment for right shoulder. Ms Sprague’s lack of treatment until after the August incident was the subject of extensive and rigorous cross-examination.
Counsel for the defendant put to Ms Sprague that her lack of treatment after the April incident contrasted with past episodes of orthopaedic injury according to the records of Albert Park Medical Centre. In June 2012, Ms Sprague attended Dr Clifforth about left shoulder stiffness or capsulitis and x-rays were arranged. In May 2015, Ms Sprague saw Dr Dwyer about ‘persistent right lateral knee pain since fall in November’ and an MRI was arranged. Ms Sprague had continued working and only had pain when kneeling.
In evidence, Ms Sprague said she did not make a conscious decision not to seek treatment following the April incident. Rather that was how it had evolved given she was able to continue to work and, additionally, drawing from her experience of the 2008 injury, she felt she had not dislocated her shoulder. As a casual employee with no accrued sick leave, she could not afford to take time off for treatment. At the time, she was preoccupied with personal issues relating to concerns for her elderly mother who lived alone interstate and was struggling to live independently.
Following the April incident, Ms Sprague continued to work predominantly in the same ward as previously. Duties included all the usual nursing functions and tasks including mobilising or turning patients. The tasks did not require her to lift her arm above shoulder height. As to how Ms Sprague could continue working when her evidence was that she experienced pain rated at 8 out of 10 if the arm was above shoulder height, she said she improvised and sought the assistance of colleagues with certain activities. If she was required to perform a task that required her to lift her arm above shoulder height, she would use her left arm. An example was using her left arm to hang up a bag of fluid for an intravenous drip. If she was required to mobilise a patient, she would always be working in tandem with a colleague or using lifting equipment. Monash Health had a ‘no lifting’ policy so it was never expected she would be lifting patients.
There was no point after the April incident when she stopped improvising in order to carry out the tasks required to perform her duties. As to why she did not arrange a formal modification of her duties, Ms Sprague said she could manage without doing so.
Ms Sprague agreed that she never told Ms Thompson, the manager of the recruitment bank, of the April incident.
Ms Jaqueline Thompson, as manager of the Monash Health Bureau, had responsibility for the recruitment bank of over 2000 casual employees including nurses. The Bureau used a ‘shift match’ system in which employees entered availability for shifts based on skills and experience. Ms Thompson said that if a staff member was injured, her team would be notified via the Riskman system. Her team would contact the injured worker to offer assistance under Monash Health’s Injury Support program. This program did not require the injured worker to have lodged a formal WorkCover claim. Ms Thompson said there was nothing in the system to indicate that Ms Sprague had suffered an injury for which she may have required assistance until the WorkCover claim was received in April or May of 2019.
Ms Thompson confirmed casual employees did not accrue sick leave and were not paid if they did not work. Whilst there was never a guarantee of ongoing or future shifts, a break or gap in an employee taking on shifts did not mean it was any harder for them to secure available shifts.
August 2018 Skiing Trip Incident
In February 2018, Ms Sprague had made plans to go on a week’s skiing trip to Falls Creek in August of that year. This was a trip she took every winter with a friend named Julie. Ms Sprague did not cancel the planned trip following the April incident because she hoped she would be better by the time of the trip. She acknowledged she had concerns about going on the trip when the time came because her shoulder was not fully functional. However, she felt it would be okay because skiing would not require her to elevate her right arm. She agreed in cross-examination that skiing carried a risk of falls and injuries, but she had decided to take the risk.
She took her own ski equipment (skis, boots and poles) which she had carried herself and had loaded and unloaded these all as well as her luggage.
Ms Sprague had skied for two and half days before the incident on 9 August 2018 in which she fell on her right shoulder. The circumstances described by Ms Sprague were that after skiing for a period, she had come to a stop in a ‘bowl’ area to see if her friend was behind her. She crouched down on her skis and fell onto her right arm. By way of treatment, she applied ice to the shoulder. She completed the week’s ski holiday and did not end the trip early as a result of the injury.
After this incident, Ms Sprague’s right arm felt heavier to raise. When performing normal activities below shoulder height, she had no pain, but lifting her right arm above her shoulder height caused pain. Ms Sprague said she was a person with a high pain threshold and that she could still function.
Ms Sprague agreed in cross-examination that, at some stage after the August incident, she mentioned her shoulder being sore to Ms Rasmussen. Ms Rasmussen recalled the conversation including asking Ms Sprague whether she would be lodging a WorkCover claim. Ms Sprague had told Ms Rasmussen that she did not think she would lodge a WorkCover claim as she had had a fall at the snow.
Treatment
On 15 August 2018, Ms Sprague attended Dr Dwyer at Albert Park Medical Centre regarding medical issues. At the end of the consultation, she reported having hurt her right shoulder in a fall whilst on a skiing trip a few days earlier. She did not refer to the April incident. Analgesia was prescribed for what was thought to be a soft-tissue injury.
In September 2018, Ms Sprague decided, at the urging of a friend who was a GP, to obtain a referral back to her former surgeon, Mr Wright. She decided to return to Mr Wright because he had treated her prior capsulitis successfully. On 22 September 2018, she attended Dr John Clifforth (as Dr Dwyer was away) at Albert Park Medical Centre and obtained referrals for radiology and to Mr Wright. Dr Clifforth’s clinical note of that attendance records that Ms Sprague reported right shoulder issues ‘after fall on snow and at work / re-tear of old injury’.
On 8 October 2018, Ms Sprague consulted Mr Wright. He recommended specialist physiotherapy with Mr Ross Lenssen. However, in November 2018, as physiotherapy was not beneficial, an MRI of the right shoulder was arranged following which Mr Wright recommended surgery. Ms Sprague arranged with Mr Wright to defer the surgery until March 2019 when her long service leave would have accrued following ten years’ service with Monash Health.
Surgery was performed on 25 March 2019 after Ms Sprague ceased work on 22 March 2019. She had post-operative physiotherapy with Mr Lessen. In early April of 2019, Ms Sprague had a setback when she jarred her shoulder after taking fright at a rat whilst in her garden. The rotator cuff repair had remained intact, but on 18 June 2019 Ms Sprague had a hydrodilatation procedure arranged by Mr Wright.
Lodgement of the WorkCover Claim
Following the March 2019 surgery, Ms Sprague decided to seek union advice. She then lodged the claim in relation to the April 2018 incident. The claim form was dated 29 April 2019 in respect of ‘(R) shoulder rotator cuff tear; (R) arm; (R) shoulder’. In response to the question ‘What happened and how were you injured?’, Ms Sprague wrote (in part):
‘nurse lunged backwards without looking tripping me causing me to fall heavily to floor sliding across the floor hitting peak of (R) shoulder to arrested trolley/bottom corner’.
Accompanying the claim form was a hand-written document that Ms Sprague had prepared and signed dated 14 April 2019 which described the circumstances of the April 2018 incident in similar terms as in the Riskman report. It further stated:
‘The momentum of trip caused me to slide across the floor, hitting the top of my (R) shoulder on lower (R) corner of the arrest trolley at brake, breaking the slide. I was helped off the floor by staff. At the time I was pleased the fall had not caused dislocation of my (R) shoulder. … I was unable to lift (R) arm above shoulder without pain at top of (R) shoulder. I could still work with limitation. … I commented to staff that I thought the bone was badly bruised or chipped secondary to fall.
Ms Sprague’s hand-written account contained reasons for continuing to work which were: to pay her rent, to avoid losing entitlements accruing on continuous service and because of her attention being focussed on her mother. The account set out also a prior history of the 2008 injury, although it omitted mention of the August 2018 incident. As for why she had thought she had a chipped bone, Ms Sprague said it was because her shoulder felt quite different to the prior dislocation injury and capsulitis condition.
Current situation and work capacity
On 7 April 2020, Ms Sprague was certified as fit for work. On 6 July 2020, once cleared for pre-injury duties, she resumed work with Monash Health. She has continued to be employed as previously via the casual recruitment bank. She presently works between 32 and 40 hours per week subject to the availability of shifts. She does some shifts on primary care wards and some on an endoscopy ward.
Ms Sprague continues with a daily exercise program at home and no longer takes any medications. She has no other treatment.
The medical evidence
Dr Peter Dwyer, of Albert Park Medical Centre, provided a report dated 20 July 2020. Dr Dwyer’s first attendance in 2018 about the right shoulder was on 12 August 2018 when she reported a fall three days previously whilst skiing. This was thought initially to be a soft tissue injury. Dr Clifforth of the same clinic later referred Ms Sprague to Mr Wright. As Dr Dwyer was not involved in the care of Ms Sprague’s shoulder, he did not provide a prognosis nor any view as to her capacity for work.
Mr Warwick Wright, treating orthopaedic surgeon, who provided reports dated 8 October 2018, 8 July 2019 and 23 August 2019, was called for cross-examination. Mr Wright had first treated Ms Sprague in 2008 for right shoulder capsulitis. On the initial attendance in 2018, Mr Wright recorded a history of a fall at work (incorrectly stated to have occurred in February or March) against an arrest trolley when she had banged her shoulder quite hard. Ms Sprague reported the shoulder being a bit sore after that. Then in August 2018, she fell on hard packed snow while skiing. He diagnosed degenerative changes and a possible rotator cuff injury on ultrasound with no evidence of recurrence of the prior capsulitis. Physiotherapy was arranged. Mr Wright opined that the original injury on 18 April 2018 was the injury most likely to have caused the rotator cuff and associated fractures. In his final report, he confirmed the diagnosis of a rotator cuff tear with no evidence of aggravation of a pre-existing medical condition. Mr Wright noted the lack of imaging in the period between the two incidents. Ms Sprague was ultimately cleared for pre-injury duties and did not require ongoing treatment other than occasional physiotherapy. In his final report, he noted that the April incident was felt by Ms Sprague to be the more severe of the two incidents and more likely to be the cause of the damage. He stated that he saw no reason to disbelieve Ms Sprague’s assertion.
In cross-examination, Mr Wright conceded there were varying levels of symptoms reported for the period after the April incident: a bit sore (report of 8 October 2018); quite sore (report of 23 August 2018); and of significant pain (his clinical note of 27 June 2019). By way of explanation, Mr Wright said rotator cuff injuries were insidious in nature and that only later may their significance be appreciated. Further, a lack of severe of symptoms does not mean no injury. Mr Wright maintained his opinion Ms Sprague’s condition resulted from or was materially contributed to by the injury of April 2018. He disagreed that this was based solely on his reliance upon Ms Sprague’s history, but also was informed by his long experience of treating orthopaedic injuries.
Mr Ross Lenssen, physiotherapist, provided reports dated 28 August 2019 and 25 June 2020 as to the pre- and post-operative physiotherapy programs.
Mr Garry Grossbard, consultant orthopaedic surgeon, provided a report dated 27 February 2020 after examining Ms Sprague at the request of her solicitors. Mr Grossbard obtained a history of the 2008 injury and subsequent recovery. He obtained a history of the April 2018 incident in which she had tripped and fallen on the floor striking her right shoulder on the trolley. From then on, Ms Sprague noticed difficulty lifting her right arm and so avoided activities requiring this. She continued full duties until March 2019. Mr Grossbard noted that Ms Sprague said she has very little pain and that the complaint of pain has never been a feature of any of her injuries. Mr Grossbard opined that Ms Sprague had restricted right shoulder function following surgical treatment of a rotator cuff tear and associated subacromial tendinopathy and bursitis. As to the role of the respective incidents, Mr Grossbard concluded that it was an impossible task to state that either one or the other of the incidents was the cause of the clinical situation. In particular, the lack of radiology in the period between the two incidents, and also immediately before the April incident, made it impossible to know whether the pathology on MRI pre-dated the August incident or was even present prior to the April incident. Mr Grossbard thought Ms Sprague had some compromised function but had a full capacity for work other than the heaviest aspects of critical care nursing.
Dr Marcus Navin, an occupational medicine physician, provided a report dated 24 May 2019 following examination of Ms Sprague at the request of the defendant. The history of the April incident was of Ms Sprague having tripped and fallen to the ground, sliding across the floor some five metres coming to rest against the metal trolley with the point of her right shoulder. The history of the August incident was of having caught an edge of her ski and falling onto her right shoulder on hard-packed ice snow. Radiology demonstrated changes that were old rather than new and would be consistent with an injury that may have occurred over many years or a sub-acute injury in previous months. That was the conclusion given the MRI was conducted some seven months after the April incident and three months after the August incident. The diagnosis was of a significant degenerative shoulder joint with changes including avulsion fractures and trauma to most of the structures applicable to the rotator cuff. As to causation, the April incident was not the direct cause of her subsequent difficulties but a manifestation of her significant underlying disorder with her capsulitis. He did not consider that employment had contributed directly to the exacerbation of her symptoms. Regarding capacity, Ms Sprague’s chronic adhesive capsulitis may impair her capacity for a full return to critical care nursing.
Dr Phil Allen, consultant orthopaedic surgeon, provided a report dated 17 July 2020 at the request of the defendant’s solicitors. Dr Allen assessed Ms Sprague via video-conference due to COVID-19 restrictions, which he considered an effective assessment method. Dr Allen obtained a history of the 2008 injury and both incidents in 2018. Ms Sprague had pain in her right shoulder after April 2018 in which she had fallen and struck her right shoulder but could continue with her normal duties. The August 2018 incident in which she had fallen did not cause pain but made her right arm heavier to lift. There was evidence of longstanding rotator cuff deficiency and degenerative tendinosis of the rotator cuff. Dr Allen diagnosed traumatic right shoulder dislocation with subsequent degenerative osteoarthritis of the joint. He considered there to have appeared to have been a possible exacerbation after the April incident and also a possible exacerbation after the August incident. The current condition could not be attributed to the April 2018 incident given months had elapsed without medical attention and Ms Sprague had continued working doing what he described as normal duties. He opined that the surgery cannot be attributed to the April incident and, if anything, is attributed entirely to the August incident. The underlying condition was attributed entirely to the prior 2008 injury. In Dr Allen’s opinion, there was insufficient evidence to assert there was any contribution from the April incident. Dr Allen considered Ms Sprague had capacity substantially for her pre-injury duties.
ANALYSIS
In submissions, Counsel agreed:
·The degenerative nature of Ms Sprague’s injury meant she was not entitled to compensation unless the Court was satisfied that her employment, and specifically the incident on 18 April 2018, was a significant contributing factor to her injury in accordance with the test in s.40(3)(c).
·Central, therefore, to determination of the case was the role of the incident on 18 April 2018 and whether it was, as the defendant said, minor and of no lasting consequence, or whether it was, as the plaintiff submitted, a significant contributing factor to her right shoulder injury or condition.
The Act defines ‘injury’ to include: ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’: s.3
There is, of course, under the Act, no entitlement to compensation in respect of an injury that is an aggravation of a pre-existing injury unless the worker’s employment was a ‘significant contributing factor’ to the injury or disease: s. 40(3)(c).
In determining whether a worker’s employment is a ‘significant contributing factor’ to an injury, there are seven prescribed matters in the Act that must be considered: Sched 1, Cl. 25 (a) to (g). These are: the duration of the current employment; the nature of the work; the particular tasks of the employment; the probable development of the injury occurring if that employment had not taken place; the existence of hereditary risks; the lifestyle of the worker; and the activities of the worker outside the workplace.
- It is well-established, as the Court of Appeal made clear in St Mary’s School v Asquith, that consideration of ‘significant contributing factor’ involves resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation: [2011] VSCA 90 at [13]. As Ginnane J in Sensis Pty Ltd v Jones, in applying Ashley JA’s analysis in Asquith, stated: ‘The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’: [2018] VSC 754 at [93].
- As to what is meant by the adjective ‘significant’ in terms of assessing the weight of the workplace incident, the Court of Appeal has held that it must be of ‘considerable amount or effect’: [2011] VSCA 90 at [14].
Burden of proof
- The burden of proof rested upon Ms Sprague to satisfy the Court, on the balance of probabilities, as to the following matters:
- That her employment was a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease to her right shoulder;
- That she was incapacitated for work for the period claimed; and, further
- That any incapacity for work results from or is or was materially contributed to by the injury.
Credit of the Plaintiff
Ms Sprague’s credit was inevitably paramount to my determination of the facts in this matter. This was particularly so given the absence of medical treatment or radiological investigation in the period between the incidents in April and August of 2018. All medical opinions were in large part, and particularly as to the role of the respective incidents, based on Ms Sprague’s account of events.
The critical importance of the plaintiff’s credit in cases of this kind has been noted by the Court of Appeal in a long line of authorities, most recently in Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76]. Ms Sprague needed to persuade me that her evidence was credible and reliable. She also needed to establish the reliability of the histories she gave to the medical witnesses, whose opinions were premised on the accuracy of her accounts to them. In this regard, for example, Mr Wright stated in his final report: ‘The patient informed me that she felt of the two injuries, the original [April 2018] injury … was the more severe of the two and felt to be more likely the cause of the damage. I see no reason to disbelieve her assertion’.
Counsel for the defendant submitted that, in important aspects, Ms Sprague’s evidence simply could not be reconciled. Her evidence should be considered unreliable. Counsel drew attention to the apparently inconsistent accounts of right shoulder symptoms in the period between the two incidents, namely:
·The contemporaneous Riskman incident report that recorded ‘Harm – No Loss/Reduction in functioning’ and ‘No harm’;
·Varying complaints of right shoulder pain, as recorded by Mr Wright, in the period between the two incidents as being: ‘a bit sore’, ‘quite sore’ and of having ‘significant pain’.
·Ms Sprague’s evidence right shoulder heaviness and her rating of pain at 8 or 9 out of 10 (with 10 being the worst pain imaginable) post-April 2018 when her right arm was raised above shoulder height;
·The hand-written account of 8 April 2019 in which she stated her belief held at the time of the incident that she may have chipped a bone.
Further, and compellingly, it was submitted for the defendant, Ms Sprague’s responses in the Riskman report of ‘No harm’ and “Harm – No Loss/Reduction in functioning’ were: (a) the most contemporaneous account of the impact of the April incident; and (b) the most probable account of the extent of the consequences given Ms Sprague’ subsequent lack of complaints or treatment or time lost from work. By contrast, it was submitted, following the prior 2008 injury Ms Sprague had made time to attend her GP and undergo radiology.
To the extent that Ms Sprague sought to explain her lack of treatment or engagement with Monash Health’s Injury Support program because of concerns related to her casual employee status, this should be rejected according to Counsel for the defendant. In this regard, the evidence particularly of Ms Thompson and of Ms Rasmussen ought to be preferred: that there was no reduction in shifts available to employees via the shift match system even after a break or gap; that the Injury Support program did not require lodgement of a formal WorkCover claim; that the program supported injured workers safely returning to work.
As for Ms Sprague’s continuing to work by modifying how she did her tasks, that evidence was unsubstantiated. It was notable, Counsel for the defendant submitted, that no co-worker was called to corroborate her account in that regard. Further, it was submitted, the declining health of Ms Sprague’s mother simply did not explain her lack of treatment for the right shoulder.
On the other hand, according to submissions of Counsel for the plaintiff, Ms Sprague ought to be accepted as a witness of truth. This was because her answers had been consistent on crucial points namely:
·Her right shoulder became symptomatic after the April incident and those symptoms never abated prior to the occurrence of the August incident.
·Her evidence of her right shoulder pain rating of 8 or 9 out of 10 related only to when the right arm was raised above shoulder height. Such acute pain occurred infrequently as she was largely able to avoid that movement.
·Ms Sprague’s continuing to work did not reflect the right shoulder being asymptomatic, but flowed from her being physically able to keep working and from financial necessity as a casual employee with no entitlements to sick leave or annual leave and from.
Additionally, it was submitted for the plaintiff, concessions were made by Ms Sprague in evidence and cross-examination that were adverse to her interests and were supportive of her being a witness of truth, as follows:
·That following the 2008 injury she did, in contrast to events after the April 2018 incident, make time to have treatment and undergo radiology. She also conceded that she went ahead an x-ray then even though she did not have an accepted WorkCover claim (unlike after the April incident).
·That the fall on the skiing trip was on hard (not soft) snow.
·That there was a worsening of her condition overall after the August 2018 incident.
After weighing these matters carefully, and on a consideration of the whole of the evidence, particularly the plaintiff’s own evidence, I formed the impression that Ms Sprague was a credible witness in the sense of being a truthful person. I arrived at my finding as to the plaintiff’s credit based not only on my impressions and observations of her (which I will detail further), but also based on the content of her evidence, and its consistency overall on crucial matters (which I will outline in detail). I now set out the matters I have considered in relation to the plaintiff’s credit:
Firstly, having the benefit of observing Ms Sprague closely whilst she was giving evidence and particularly during cross-examination on these matters, at no stage did I gain the impression that she was attempting to mislead the Court. Rather, it was my assessment of her that she appeared, notwithstanding some inconsistencies in her evidence, to be doing her best to give accurate answers to the questions asked of her. That observation is supported by the plaintiff’s concessions in cross-examination against interest. Another such example was when Ms Sprague agreed she had told Ms Rasmussen she didn’t think she would lodge a WorkCover claim because she had had a fall at the snow.
Secondly, regarding Ms Sprague’s contemporaneous reporting of ‘no harm’ in the Riskman report, I find that response does not truly or accurately reflect the consequences of the April 2018 incident. The evidence was that responses under the Risk Assessment section were prescribed by drop-down menu options. As Ms Sprague had, at that stage, not sought treatment nor decided she would seek treatment, I find that there was no proper alternative for her to select in response to the ‘Overall Severity’ question other than option 4 (‘No Harm/Near Miss’). On the other hand, given its contemporaneity, I do consider it appropriate to attach weight to the sections of the Riskman report that permitted ‘free text’ responses. In those sections of the Riskman report, the word ‘heavily’ was used twice by Ms Sprague to describe the impact of the fall to the floor. This was Ms Sprague’s own assessment of the incident the day after the incident. I find that the immediate impact of the incident was in fact other than minor.
Thirdly, in relation to Ms Sprague’s belief that she had chipped a bone, as recorded in the hand-written account of 8 April 2019, I consider it not uncommon for nurses with decades of experience to speculate as to diagnosis of injuries and conditions. I accept Ms Sprague’s evidence that she knew from her prior experience of the 2008 injury that it was not a dislocation and not capsulitis, so it may have been a bony injury.
- Fourthly, as to the varying complaints to Mr Wright, I find it unsurprising that over a period of several months, different words were used to describe pain that was triggered only by elevation of the arm above shoulder height. To a certain extent, I consider Ms Sprague’s answer in evidence of rating her pain at 8 or 9 out of 10 when her arm was above shoulder-height, may have been exaggerated. However, at the same time, her evidence also was that she generally had very little pain day to day and that the instances of that level of pain were experienced only when the arm was above shoulder height which was an action she could generally avoid.
Fifthly, Ms Sprague impressed me as was a stoic individual who has tended generally to endure pain or hardship without complaint. As Mr Grossbard observed, the complaint of pain has never been a feature of any of her injuries. When she did ultimately report her shoulder injury to Dr Dwyer after the August 2018 incident, even then she did so only at the end of a consultation about unrelated medical issues. It was only at the urging of a friend who was a GP the following month that she did ultimately pursue radiological investigation and a referral back to Mr Wright. In other words, I find that Ms Sprague simply put up with the pain until she could not do so any longer. There was evidence of a prior example in 2015 of her stoicism in relation to a knee injury when she did not seek treatment for knee pain until May 2015 having fallen in the previous November.
Sixthly, Ms Sprague had a somewhat flat affect and demonstrated little emotion whilst giving evidence and under cross-examination. The only time I observed her to become visibly emotional was when pressed about the decline of her mother’s health (as being a factor in her not seeking treatment after the April incident). I therefore accept as likely that Ms Sprague was genuinely preoccupied with a stressful personal issue that was a relevant circumstance in not taking steps in relation to her shoulder sooner.
Seventhly, whilst I accept Ms Thompson’s evidence that Ms Sprague’s casual status may not have precluded her from engaging with Monash Health’s Injury Support program nor arranging treatment nor accessing shifts, the situation nevertheless was that Ms Sprague had no entitlements to sick leave or annual leave. Prior to March 2019, she also had no access to accrued long service leave. I find that Ms Sprague’s casual status played an inevitable role in her determination to continue working as long as possible for financial reasons and so that her long service leave continued to accrue. In arriving at this finding, I note that Ms Sprague, even after Mr Wright recommended surgery, held out for some months and worked on until late March 2019 when she could access her accrued long service leave.
Eighthly, in relation to Ms Sprague’s uncorroborated evidence that she managed her work tasks following the April 2018 incident by altering how she went about her work, I find that she did so and was able to do. I so find because of her stoicism and her long nursing experience meant she could work around limitations.
Nature of Injury and Diagnosis
I turn next to the question of diagnosis of Ms Sprague’s injury.
- Radiological investigations demonstrate multiple diagnostic findings of the right shoulder joint including of a degenerative nature. The x-ray and ultrasound of 26 September 2018 showed degenerative changes in the acromioclavicular and glenohumeral joints as well as well-corticated bony fragments in the supraspinatus insertion. The MRI report of 26 November 2018 included multiple findings included an avulsion fracture secondary to a high-grade partial thickness articular surface tear of the anterior and posterior fibres and mild glenohumeral joint chondral wear.
Opinions as to injury and diagnosis were provided by three orthopaedic surgeons: Mr Wright, the treating surgeon, who had a clinical role in the treatment of Ms Sprague’s shoulder over some ten years; Mr Grossbard who clinically examined Ms Sprague once for medico-legal purposes; and Dr Allen who performed a video assessment in combination with a physical examination by an allied health professional also for medico-legal purposes. Only Mr Wright, as noted, was subject to cross-examination. Whilst Mr Nevin (an occupational physician) also provided a diagnosis, I prefer the expert views of the orthopaedic specialists on diagnosis.
- Mr Wright diagnosed a right shoulder rotator cuff tear although, as noted from the radiological reports, degenerative pathology was demonstrated. Mr Grossbard described Ms Sprague as having restricted right shoulder function following surgical treatment of a rotator cuff tear and associated subacromial tendinopathy and bursitis. Dr Allen diagnosed traumatic dislocation of the right shoulder with subsequent degenerative osteoarthritis.
- I find the diagnosis of Ms Sprague’s injury was of a right shoulder injury involving a rotator cuff tear and aggravation of underlying associated degenerative changes including subacromial tendinopathy and bursitis. I find Mr Wright’s diagnosis to have more weight given his long clinical involvement with Ms Sprague’s right shoulder.
Causation and Significant Contributing Factor
Having found Ms Sprague’s injury diagnosis involved aggravation of underlying degenerative change associated with the rotator cuff tear, the legal and evidentiary burden of proof to be discharged by Ms Sprague was that the April 2018 incident was a significant contributing factor to the aggravation of her right shoulder condition. As I have noted, that was the agreed view of counsel for both parties.
The defendant’s case was that, given the April incident either caused no injury or any injury was transient and minor, it followed that it was not, nor could possibly have been, a significant contributing factor to the aggravation of pre-existing injury or disease to the right shoulder. Many of the matters relied upon by the defendant in support of that contention have already been outlined. In summary, the matters relied upon included:
·The Riskman report answers as to ‘no harm’;
·The lack of treatment in the period between the two incidents was irreconcilable with Ms Sprague’s belief of having a chipped bone and of pain of 8 or 9 out of 10 when the arm was elevated;
·Not availing herself of the Monash Health injury support program;
·No loss of time from work and no formal arrangement for modified duties.
·Her failure to mention the workplace injury when she did report her shoulder injury to Dr Dwyer on 12 August 2018;
·The August 2018 incident was traumatic in nature involving as it did a fall on hard packed snow, as Ms Sprague conceded. Only the August 2018 incident was reported to her GP at the time of the first recorded complaint of shoulder problems in 2018.
·In terms of the medical evidence, the opinion of Dr Allen that Ms Sprague’s condition could not be attributed to the incident April 2018 should be preferred. His opinion accorded with the delay in seeking treatment and in continuing to work and should be preferred. Correspondingly, Dr Navin’s opinion that the April incident did not contribute directly to the exacerbation of her symptoms was a compelling one and consistent with the objective and contemporaneous evidence being the Riskman report of ‘no harm’ and the lack of complaint or treatment. On the other hand, Mr Wright and Mr Grossbard’s opinions which were formed based on the plaintiff’s history should be rejected.
Counsel for the plaintiff submitted, on the other hand, in relation to causation, that Ms Sprague’s evidence was credible and reliable and was supported by the weight of the evidence. I have already set out in detail the plaintiff’s submissions in relation to credit and also my findings.
- Certainly, as Counsel for the plaintiff submitted quite correctly, it was not necessary for me to find that the April incident caused Ms Sprague’s right shoulder injury necessitating surgery and time lost from work. Conversely, nor was it necessary for me to find that the August incident did not contribute to her right shoulder injury.
Resolution of this essentially factual enquiry was undoubtedly complicated by the absence of primary medical records (due to the lack of treatment or investigation) in the period between the two periods. Indeed, Mr Grossbard, a most experienced orthopaedic surgeon, concluded that it was impossible to state that either one or the other of the incidents was the cause of the current clinical situation. Similarly, Mr Grossbard considered the lack of radiology both in the period between the two incidents and, indeed, immediately before the April 2018 incident, made it impossible to know the aetiology of the pathology on MRI.
Of course, the question for determination was not which of the two incidents caused Ms Sprague’s injury. Rather, as I have said, in undertaking an evaluation the whole of the evidence, the task was to determine the impact of the April 2018 incident and, in accordance with Asquith, whether it was of considerable amount or effect: [2011] VSCA 90 at [13].
Having found that the plaintiff was a credible witness, I also find that she has established the reliability of the histories she gave to the medical witnesses regarding the respective incidents.
After a consideration of all of the evidence, in term of the relative mechanisms of the two incidents, and in particular Ms Sprague’s own evidence, I am satisfied on the balance of probabilities that the April incident did involve a considerable trauma to Ms Sprague’s shoulder.
I find that on 18 April 2018 Ms Sprague’s right shoulder collided with some force with a sharp metal corner of the trolley after she had fallen heavily and slid across the floor. I so find based on the most contemporaneous description of the incident in the contemporaneous Riskman report and based on the following:
·The reference in the hand-written account of 9 April 2019 of the momentum of the trip causing her to slide across the floor and hit her shoulder on the corner of the trolley.
·Mr Wright’s history of her having banged the shoulder quite hard.
·Dr Navin’s history of her tripping over and sliding across the floor some five metres coming to rest against the trolley with the point of her right shoulder against the trolley.
By comparison, on 9 August 2018, Ms Sprague was not actually skiing. On her evidence, which as I have said I accept, she had come to halt and so, whilst she did fall onto hard packed snow, it was from a stationary, crouching position. I find that the August incident contributed to the ultimate condition of her shoulder and need for surgery, although it was an incident of less force than the April incident. As a matter of law, my finding that the August incident was a contributing factor, does not, in accordance with Sensis, preclude a finding that her employment was a significant contributing factor: [2018] VSC 754 at [93].
In relation to the orthopaedic opinions as to causation, whilst I note Mr Grossbard’s opinion was that it was an impossible task to attribute the injury to one or other of the incidents (which of course was not the task of the Court), I found Mr Wright’s evidence that rotator cuff injuries are by their nature insidious to be a compelling explanation for Ms Sprague’s lack of complaint and treatment initially. As Mr Wright said, only later is the significance of such injuries appreciated and a lack of severe of symptoms does not mean no injury. Mr Wright was an impressive witness and I accept his evidence in its entirety. Under cross-examination, Mr Wright maintained his opinion that Ms Sprague’s condition resulted from or was materially contributed to by the April incident. Whilst I have, for the reasons stated, found Ms Sprague to be a truthful witness, I am, in any event, satisfied that Mr Wright’s opinion was based not only upon his reliance upon Ms Sprague’s history, but also upon his clinical treatment of Ms Sprague’s shoulder over the span of a decade and upon his many years’ experience of managing orthopaedic injuries.
For the sake of completeness, whilst I prefer Mr Wright’s opinion to that of the orthopaedic opinion of Dr Allen who thought the surgery was attributed entirely to the August incident with the underlying condition being attributable entirely to the prior 2008 injury, Dr Allen also was of the opinion it was possible that each of the incidents in 2018 had exacerbated the underlying current condition.
CONCLUSION
In my opinion, the plaintiff has discharged the legal and evidentiary burden of proof. On the balance of probabilities, I am satisfied that the incident on 18 April 2018 in the workplace was a significant contributing factor to the aggravation of her right shoulder injury or disease.
Accordingly, it follows that Ms Sprague is entitled to an order for arrears of weekly payments of compensation for the period claimed as well as reasonable medical and like expenses in accordance with the Act.
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