Stevens v HW Greenham and Sons Limited

[2014] VCC 824

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-13-03048

KEVIN STEVENS	Plaintiff
v
H W GREENHAM & SONS LIMITED	Defendant

‑‑‑

JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Bendigo
DATE OF HEARING:	5, 6 and 7 May 2014
DATE OF JUDGMENT:	7 May 2014
CASE MAY BE CITED AS:	Stevens v HW Greenham & Sons Limited
MEDIUM NEUTRAL CITATION:	[2014] VCC 824

REASONS FOR JUDGMENT
‑‑‑

Subject:  ACCIDENT COMPENSATION
Catchwords:             Serious injury – injury to the right dominant shoulder
Legislation Cited:     Accident Compensation Act 1985

Cases Cited:Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454

Judgment:Leave granted to the plaintiff to bring proceedings for the recovery of pecuniary loss and pain and suffering damages.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell QC with Mr D J N Purcell	Arnold Dallas McPherson
For the Defendant	Mr W R Middleton QC with Mr R Kumar	Hall & Wilcox

HIS HONOUR:

1       This application for leave under the Accident Compensation Act 1985 (“the Act”) to bring proceedings for both pain and suffering and pecuniary loss damages relies on an injury to the dominant right shoulder. The impairment relied on by this sixty-two-year-old meatworker is that of the right arm and shoulder. The compensable injury to the shoulder is admitted. The injury was probably best described by the surgeon who operated when he said:

“There was rotator cuff pathology, chronic impingement syndrome, together with a suspected supraspinatus tendon tear.” 

2       It is also admitted the plaintiff has permanently lost his former capacity to work as a meatworker.[1]

[1]Transcript (“T”) T13

3       Issues for determination were said to be whether or not the consequences are “serious” as defined.  Permanence and disentangling were also indicated as issues that the defendant may rely on in the defence of this application.[2]   I will say more about those later, as well as some other arguments raised in the running. 

[2]T12

4       I note the repeal of s134AE and the Explanatory Memorandum and Second Reading Speech that accompanied it.  Clear, proper and adequate reasons are required but it is not necessary to quote the evidence at great length in this application.

5       Essentially the real contest in this application focussed on one major issue.  That is whether or not a man who has been a meatworker since leaving school at fourteen years of age up until the time he was injured, has satisfied the test of a permanent loss of earning capacity of 40 per cent or more.  All the doctors agree his days as a heavy manual worker in abattoirs have now been permanently lost to him because of the dominant arm impairment.

6       Thus it becomes an assessment of any residual capacity for suitable employment that is at the heart of this application.  The terms of the definition of “suitable employment” are relevant, including work history.[3]

[3]Section 5 of the Act

7       The plaintiff suffered a crush injury to his right arm when on light duties on 25 May 2010.[4] On all the evidence, I find it is not causing any ongoing impairment of the function of that arm.  It plays no part in any present incapacity for work.  He has some scarring and discomfort, but I accept it is mild.  The injury has no effect on activities of work or daily living.[5]   He is as uneducated as virtually any person growing up in this State whose native language is English.  He did not even complete Form 2 or Year 8.[6]

[4]Plaintiff’s Court Book (“PCB”) 32

[5]PCB 99

[6]T53

8       The plaintiff started in an abattoir at fourteen years of age.  He has never worked outside the meatworks industry.[7]  It was an advantage to see and hear him in court over two days.  He is a very simple, unsophisticated man who was straightforward.  On 14 June 2009, a compensable injury occurred when rapidly handling and pulling meat from a conveyor belt.  He needed medical attention but was told the company physiotherapist was not available until 29 June 2009.  This was brought forward and after two physiotherapy visits he attended the company general practitioner, Dr J Azzopardi, on 29 June 2009.

[7]PCB 26-28

9       The plaintiff’s treatment ultimately led to surgery by way of decompression on 7 December 2010.  There has been a lot of physiotherapy of different varieties, as well as other conservative treatment.  He has been on a constant regime of medication that has included narcotic drugs.  The plaintiff still takes a lot of painkillers.  At 3.00am between day one of the hearing and the second day, the plaintiff needed Tramadol, Lyrica and Endone due to pain.[8]

[8]T29

10      I accept his evidence that he is currently on a number of prescription medications that include Endone, Tramadol and Lyrica, as well as the over-the-counter analgesic Nurofen.[9]   He has been on these or similar painkillers for close to five years.  I find this is consistent with a very significant level of pain that is constant, although its severity does vary.[10]  I accept his evidence that he could not do any job that required repetitive use of the dominant arm.[11]  I found the plaintiff, who was the only witness called, to be a man who was reliable, honest and essentially accurate in the witness box.  He did not exaggerate his symptoms or disabilities.  He found comprehension difficult though, when being questioned.

[9]T14-15

[10]T34

[11]T54

11      Some 52 minutes of video surveillance was shown.[12]  It covered three separate days.  It did not impact adversely on his credit.  Apart from walking around shops, putting on a parka, eating and driving, it showed very little in terms of use of the right arm.  There was nothing strenuous or vigorous in terms of right arm use.  He carried a couple of small items extremely short distances with his right arm.  At times he carried shopping in the left hand.

[12]Exhibit 1; T31

12      The video evidence is only a very brief snapshot of the last five years.  There were a number of unexplained gaps in the films.  Moreover, curiously two DVDs had film of 28 March 2013.  The film was short as to that day.  For some reason there was another DVD with film of 29 March 2013 on which 28 March 2013 also appeared.  It was not clear why the short 28 March 2013 footage depicted was not on the one DVD.  However in the absence of the author being called, speculation about what else was on the DVD, if anything, is not permitted.[13]

[13]T31-32

13      Perhaps most importantly, there was nothing shown that would in any way support an argument that the plaintiff could perform repetitive manual labour in an employment context, whether that was light work or otherwise.  There were no repetitive movements of the right arm depicted.  The heaviest item carried was a slab of beer, carried about 10 metres or so, and he used his left arm and shoulder for that.

14      These were the DVDs sent to Mr M Dooley, orthopaedic surgeon, who commented on them in a letter of 30 June 2013.[14]   I do not agree with his view that they showed any great range of movement.  The surgeon considered the range of movement more than what took place in Melbourne when he examined the plaintiff.[15]

[14]Defendant’s Court Book (“DCB”) 14

[15]DCB 11

15      Even if the plaintiff did hold his arm tucked in by his side when he saw Mr Dooley, this was not inconsistent with the plaintiff's symptoms varying in severity.  I accept his evidence of varying intensity and that means at times it is worse than at other times.  Sometimes there is very restricted movement, but in his own words, “Not that bad”, at other times.  On some occasions there is little restriction of movement and at other times much more.[16]

[16]T29-30

16      In any event, this man has been under specific medical advice not to use the arm.  I accept at times you would hold the arm relatively immobile.  That is what the company doctor has seen fit to put in a WorkCover certificate.[17]

[17]Exhibit A

17      I accept the plaintiff’s evidence that he is a man who has worked hard in hard physical jobs all his life.[18]   I find his account in his affidavit of his symptoms is a fair reflection of the consequences of his impairment in terms of impact on function.[19]

[18]PCB 37

[19]PCB 33-36

18      Those limitations make it no more than an unrealistic theoretical capacity to work in any job to which he is suited at his age and with his work experience and history.  A realistic attitude to the actual employment marketplace has to be taken into account in this application.  In other words, the real commercial world has to be looked at when considering capacity for suitable employment.[20]

[20]Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 at paragraph [11]; Acir v Frosster Pty Ltd [2009] VSCA 454 at paragraphs [186]-[188]

19      Looking at these realities, it should be borne in mind that the workplace he had demonstrated a capacity to perform his work in over several years could not find a permanent place for him after he was injured.  I accept he has an exemplary work record as an uneducated manual worker in the meat industry.[21]  He has worked in no other field.

[21]PCB 28

20      Looking at the medical evidence in this case, it is not necessary to describe it in great detail.  The plaintiff's impairment must be judged now in May 2014.  A lot of the medical reports are too dated to really assist in that task.  The last word of the general practitioner, Dr Azzopardi, is on 13 February 2014.[22]  He referred to the ongoing need for medication that included the narcotic, Endone.  He referred to “a fluctuating chronically painful right shoulder”.  It restricted his capacity to utilise the right arm and interrupt sleep.  The condition was stable.  He still issues WorkCover certificates as “unfit for any duties”.[23]

[22]PCB 46

[23]PCB 46

21      I consider this doctor knows the plaintiff better than any other medical witness.  He was the company doctor.[24]   I find this company doctor's views effectively amount to saying this unskilled sixty-two-year-old manual worker is permanently unemployable, in regard to any suitable employment.

[24]PCB 30

22      The other treaters are the two surgeons, Mr M Pavlovic and Mr A Bonomo.  The first operated on the plaintiff’s shoulder in 2010 and his last word is in a letter of 17 December 2012.[25]  At that stage, he thought the plaintiff's condition was not improving and would not further improve.  The condition was stable and the surgeon stated: “He will not be able to return to his normal duties.”[26]  He did not comment further on work capacity.

[25]PCB 48A

[26]PCB 48A

23      He referred the plaintiff to Mr Bonomo for what appears to be a second opinion.  Mr Pavlovic stated his patient was not keen to undergo further surgery.[27]  I find that was a reasonable decision for the plaintiff to take.  He has found the shoulder problem worse after his first operation.  In addition, he has had a bad reaction to general anaesthetic.[28]

[27]PCB 48B

[28]T17; T20

24      Mr Bonomo only saw the plaintiff once.  His letter simply said on 30 May 2012 that his suggestion of a further operation was left up to Mr Pavlovic.[29]  There was some misunderstanding or lack of communication it seemed, about who was supposedly going to operate, if a second procedure took place.  It is of no importance.  It has not taken place.

[29]PCB 54

25      While the defendant argued permanence was not proved, there was no specific criticism made of the reasonableness of the plaintiff’s decision not to have surgery after the poor result gained from the first operation.  Mr M Dooley, for the defendant, did not see merit in further surgery.[30]

[30]DCB 12

26      The final treater was Professor R McLean, consultant physician, who saw the plaintiff once in November 2011 on the general practitioner’s referral.  No opinion on consequences was given.[31]  The medico-legal opinions commence with the plastic surgeon, Mr J Buntine.[32]  He was looking principally at the crush injury in May 2010.  Nevertheless, he thought the major impairment the plaintiff suffered from was caused by the shoulder injury.[33]  The crush injury was of virtually no relevance to work capacity in his view.  A Mr B Reid, general surgeon, reported in January 2013.[34]  He was asked to provide an AMA assessment for the shoulder injury.  He said the plaintiff continued to suffer from it.  Prognosis was poor.  He thought the plaintiff was unable to do any work requiring right shoulder movement.[35]   I find for this unskilled manual worker this surgeon really said the plaintiff was unemployable, when looking realistically at the labour market.

[31]PCB 50

[32]PCB 95

[33]PCB 99

[34]PCB 103

[35]PCB 106

27      Mr T Kossmann, orthopaedic surgeon, saw the plaintiff in 2013 and later again in 2014.  His opinion and prognosis were unchanged when some further radiology was sent to him.[36]  This surgeon said the plaintiff had no capacity to return to manual labour.[37]  This doctor supported my finding that the plaintiff has never had a capacity for anything other than unskilled manual work and he has permanently lost that.

[36]PCB 62

[37]PCB 60

28      With his lack of education, limited comprehension confirmed in the witness box, including his problem following paperwork shown to him, he is not a realistic prospect for retraining in any clerical or work apart from the unskilled manual labour which he performed for decades.  Mr Kossmann leaves the door open somewhat as to future improvement.

29      The vast bulk of the medical evidence in this case is that the condition is stable.  I prefer that evidence to the view of Mr Kossmann that it was not stable.  Dr R Horsley, occupational physician, saw the plaintiff in December 2013.  She considered the shoulder impairment meant: “He has no realistic capacity for work and this is likely to continue into the foreseeable future.”[38]

[38]PCB 69

30      This doctor also considered he was not a redeployment or a retraining candidate.  I agree.  In summary, the report stated: “He is totally and permanently disabled.”[39]   I accept that is a fair reflection of his capacity for any suitable employment.  It is a permanent situation.

[39]PCB 70

31      The defendant engaged Mr M Dooley, orthopaedic surgeon, who saw the plaintiff once in 2013.  He thought there was some psychological reaction to his condition.  He is on his own in this regard and I do not accept that aspect of his opinion.  The plaintiff's presentation was, in my view, quite the opposite in court.  Mr Dooley stated the plaintiff would have difficulty with a lot of activity and above shoulder level function.  He is speaking of the dominant limb.[40]   This of itself is a very real limitation on any manual worker’s capacity for unskilled work.  It is a physical limitation, leaving any psychological aspect that Mr Dooley saw to one side.

[40]DCB 12

32      Mr Dooley thought console operator, sales assistant or postal worker were all jobs beyond the plaintiff’s physical capacity.  It was not quite clear why Mr Dooley said that, in view of what he said about the psychological component.  Nevertheless the limit he puts on the plaintiff speaks for itself.  These are physical incapacities that preclude him from those jobs related to the shoulder injury.

33      The surgeon thought the plaintiff could work as a traffic controller or school crossing supervisor and car park attendant.  He did see these jobs as requiring a graduated commencement and he thought it was difficult to estimate what hours the plaintiff would be able to do.  Mr Dooley’s report is defective in a number of aspects.  He took very brief histories, for example.

34      His comment following the video film sent to him did not take account of the variation the plaintiff has in symptoms, which I accept.  Nor did he seek a further consultation with the plaintiff after seeing the film to further examine and question him about what he considered relevant as to range of movement depicted.

35      Of great weight amongst the medical opinions in this case is the Medical Panel opinion sought by the defendant in relation to weekly payments.  That opinion, comprising four doctors, could not be clearer.  The Panel considered he had a right shoulder dysfunction from a surgically treated rotator cuff injury.[41]

[41]PCB 93

36      It stated:

“The Panel is of the opinion that the worker has no current work capacity.”[42]  

[42]PCB 93

37      It went on and said:

“The Panel is of the opinion that the worker has no current work capacity and that is likely to continue indefinitely.”[43]  

[43]PCB 94

38      I agree with both statements of medical opinion.

39      On all the evidence I find the plaintiff has no capacity for suitable employment.  This incapacity will probably remain for the foreseeable future.  In view of the large body of medical opinion about work capacity in this case, it is not necessary to analyse the vocational experts’ reports the defendant relies on in any depth.  These reports are now well out of date.  They do not assist an evaluation in May 2014.

40      They suffer from inadequate medical material.  They also refer to opinions not tendered.  A report of a Mr Scott, whoever he may be, of 21 February 2013 is heavily relied on but it is not given to me.  The Court cannot give much weight, if any, to vocational assessors’ reports based on material that is unknown.[44]  I give little weight to the vocational assessments the defendant relies on.

[44]DCB 25

41      I should record that to suggest, without any proper or primary evidence, that a school crossing supervisor who works only when children go to school earns $1,000 per week is fanciful and I reject it.[45]  At least the vocational assessment report from Ms George, for the plaintiff, deals with the actual duties of the jobs suggested in the defendant’s reports.

[45]DCB 52

42      I need to briefly refer to issues the defendant indicated it may rely on, being permanence and disentanglement.  The medical evidence, including the independent Medical Panel, established on the balance of probabilities that the plaintiff’s incapacity for future employment will last for the foreseeable future.  I accept that opinion and I will comment further later on the permanence argument.

43      On disentangling, Mr Dooley is out on his own in regard to psychological issues being at play in this case.  Even he gave an organic basis for restrictions on work and other activities.  His report describes an organically based shoulder impairment with some later developing psychological aspect.  While he said psychological issues related mostly to the current presentation, he still gave orthopaedic reasons for continued pain and limitations on work.  I do not accept the defendant’s argument that, on all the evidence, there is really any disentangling to be done of any psychological reaction from organic pain.  The defendant did not even engage any psychiatrists to examine the plaintiff in regard to any potential non-organic component to the plaintiff’s problems and consequences. 

44      As indicated earlier, the defendant submitted the plaintiff had not proved permanence.  I reject that argument.  The vast weight of the evidence is that the plaintiff’s condition is essentially stable now, just on five years since his injury.  His present situation will continue for the foreseeable future.  Dr Azzopardi.[46] Mr Pavlovic.[47] Dr Horsley.[48] the Medical Panel.[49] Mr Reid[50] and probably, Mr Dooley.[51]

[46]PCB 46

[47]PCB 48A

[48]PCB 69-70

[49]PCB 94

[50]PCB 106

[51]DCB 12

45      Mr Kossmann alone seemed to point to some treatment options that “may” improve the plaintiff’s condition and it is not stabilised.  He pointed to a number of suggestions that “may help”.  He also says there “may” be natural improvement, but it “may take many years”.[52]  That is not much consolation to a worker who will be sixty-three years old this year. 

[52]PCB 59-60

46      The defendant has further argued that disentangling is required, not only in regard to the psychological aspects Mr Dooley alone referred to, which I have dealt with, but in regards to neck pathology.  Professor McLean raised neck pathology, but his report needs to be read in its entirety in dealing with this argument of the defendant.  He said some of the symptoms came from the neck not the shoulder injury.  There are nine doctors, plus the Medical Panel, who provided evidence in this case.  Professor McLean is the only doctor who said the neck is causative of any shoulder symptoms.  I do not accept that it is.  His final comment was very informative.  He ended his report by saying the plaintiff should be referred to “… a dedicated orthopaedic shoulder specialist”.[53]

[53]PCB 53

47      I have not heard from him or any doctor.  However, I read his last suggestion of a referral, as indicating that his ultimate view is that the symptoms are probably of shoulder origin.  He does not suggest a cervical spine specialist surgeon.  In the end, the diagnosis Professor McLean probably gave was slight arthritis of the right shoulder, thickening of the subacromial bursa and partial tear of supraspinatus and tendinosis at the insertion of the subscapularis.[54]

[54]PCB 52

48      He said no more than it sounds as though there were symptoms that warranted a CT scan of the neck.  Without hearing from him, I do not take him as saying any more than that.  In other words, he saw clear shoulder pathology and queried there might be also some in the neck.

49      The state of the medical evidence, looking at it overall, is that no disentangling exercise is required in regards to separating some possible neck pathology from the admitted compensable injury of the right shoulder and its consequences.

50      Mr Dooley also referred to some neck pathology.  He did not say it was relevant to the plaintiff’s current condition causatively.[55]  He diagnosed aggravation of underlying degenerative rotator cuff disease in the work incident.[56]

[55]DCB 12

[56]PCB 93

51      I do not accept the defendant’s further suggestion that the plaintiff has failed to establish the nature of the injury.  The reference to right shoulder injury does not require the Court to play doctor and reach the diagnostic precision a surgeon at the door of a theatre requires.  The evidence is clear.  The medical panel of four doctors diagnosed a rotator cuff injury.[57]

[57]PCB 38

52      The general practitioner thought it was subacromial bursitis with impingement.[58]  The treating surgeon who went into the shoulder, articulated his diagnosis prior to the surgery as rotator cuff pathology with chronic impingement syndrome and he suspected a supraspinatus tear.[59]

[58]PCB 48

[59]PCB 52

53      Professor McLean thought it was slight arthritis of the shoulder, thickening of the subacromial bursa, partial supraspinatus tear and tendinosis at the insertion of the subscapularis.[60]

[60]PCB 52

54      Mr Kossmann’s opinion was that a small tear of the supraspinatus and post-operative right shoulder capsulitis was the diagnosis.[61]

[61]PCB 58

55      Dr Horsley was not specific, but it was all shoulder.  There is no neck mentioned.  She said he suffered a significant injury to his right shoulder and was treated with subacromial decompression and bursectomy with a poor response to surgery.[62]

[62]PCB 69

56      Mr Reid diagnosed subacromial bursitis and adhesive capsulitis.[63]

[63]PCB 106

57      Mr Buntine was looking at the crush injury to the forearm, but said the impairment the plaintiff had was caused by the shoulder injury.[64]

[64]PCB 99

58      As mentioned already, Mr Dooley thought it was an aggravation of underlying degenerative rotator cuff disease.[65]

[65]DCB 11

59      It is worth noting in refuting the defendant’s submission that the injury has not been proved and/or the neck needs to be somehow disentangled, to point to objective evidence of organic shoulder injury.  It is of some weight that in the more recent reports, wasting has been noted and measured in 2013:[66] Mr Kossmann, Dr Horsley[67] and Mr Reid.[68]

[66]PCB 57

[67]PCB 69

[68]DCB 105

60      A submission was made by the defendant as to the vocational assessment relied on by the plaintiff as involving the expert, Ms George, stepping outside her expertise.  I disagree.  She commented on the job suggestions the defendant’s vocational assessors put forward in at least some meaningful detail.  The job suggestions in the defendant’s vocational assessment documents give such an inadequate job description as to be virtually meaningless.[69]

[69]DCB 49, 51 and 52

61      They consist of a few bare words.  To say a road maintenance traffic controller must “prepare site for new operational works” and say no more, is quite useless.[70]   It is of no weight to then suggest the plaintiff is capable of it as the assessor says.  Mr Dooley even said it depends on the duties involved.[71]

[70]DCB 49

[71]DCB 12

62      A job suggestion without any adequate description of the tasks and duties involved in these jobs is of little or no assistance.  Ms George at least attempted to delineate duties.[72]   Her report is much more logical and easy to understand in terms of reasoning.  I prefer her opinions to the defendant’s vocational assessment suggestions.[73]  Her assessment of his lost capacity is well reasoned and easy to follow.

[72]PCB 82-84

[73]PCB 74

63      The defendant argued what was really an attack on the plaintiff’s motivation in regard to refusing to work or retraining for other jobs.  Reliance was had on very brief notes from Dr Azzopardi’s computer clinical records on 5 June 2012.[74]

[74]DCB 87

64      Further reliance was placed on a short handwritten physiotherapy note from the records dated 5 December 2012.[75]  These notes are so brief that in the absence of hearing from either of these two medical witnesses, I am not prepared to conclude the plaintiff was unwilling to participate in retraining or alternative work.  They are so short they cannot possibly comprise anything like the full extent of conversations between the patient and the practitioner.  They are also equivocal.

[75]DCB 80

65      For example, the plaintiff would be entitled to seek legal advice about such matters and how they might impact on his rights when he was terminated from employment by the defendant.  The note indicated that his solicitor was away at the time and I accept that would lead to some understandable hesitation for this very uneducated man.  His comprehension of the court process was clearly limited in the witness box, so his understanding of the effects on statutory benefits and any potential common-law claim would be extremely limited.  He needed to, and was perfectly entitled to wait for professional advice.

66      To translate these brief notes into an argument that the plaintiff lacked motivation is an argument I reject.  This is a man who from age fourteen worked in one of the hardest, dirtiest and unpleasant industries in our society, namely abattoirs.  He did that for close to forty five years.  He even returned to the abattoirs after the injury to his shoulder.  To suggest his motivation or work ethic are questionable is without foundation in my view.

67      In evidence, it needs to be also said that the plaintiff did not agree that the suggested retraining, the notes are said to support, was even put to him.[76]   I do not find the plaintiff was ever offered a traffic control course, let alone rejected the offer.  To suggest the drive from Elmore to Bendigo might be a reason he did not do some course is denied by the plaintiff and I accept that denial.  It is a meaningless suggestion anyway as he was already doing that trip weekly to the vocational assessment people who were also in Bendigo.[77]

[76]T46

[77]T47; T51

68      For the reasons described, I grant leave to issue proceedings for the recovery of pecuniary loss damages.  It follows, in accordance with accepted practice, I also grant leave with respect to pain and suffering damages.

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