Stevens v Woolworths Limited
[2018] VCC 1890
•22 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04172
| SHARLENE ANN STEVENS | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 April 2018 | |
DATE OF JUDGMENT: | 22 November 2018 | |
CASE MAY BE CITED AS: | Stevens v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1890 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left and right shoulders – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell SC with Ms K M Manning | Maurice Blackburn |
| For the Defendant | Ms G J Cooper | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff to both her shoulders due to the nature of, and in the course of, her employment with the defendant between 2004 and 2016 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is bilateral shoulder function.
5 The plaintiff relied upon two affidavits, sworn 27 April and 12 April 2018,[1] and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
[1]Exhibit “A”
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked” and as being “at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Subsection (38)(e) and ss(38)(f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
15 The defendant concedes the plaintiff suffered injuries to both her shoulders, resulting in operative relief, but does not concede that the injury is caused by the employment. Alternatively, without admitting same, the defendant does not advance an argument that the plaintiff does not reach the threshold with respect to pain and suffering damages, but does not concede that the injury meets the requirements with respect to economic loss.
Physical injury
16 The plaintiff claims that the nature of her employment as a meat packer with the respondent was repetitive and physically stressful, such that the employment was a cause of bilateral injury to her shoulders.
17 The course of her injury and treatment is best summarised by her treating orthopaedic surgeon, Mr Christopher Pullen, in his report to the plaintiff’s solicitors dated 9 Mach 2016.[3] He relates the plaintiff first consulted him on 26 March 2014 on referral from her treating general practitioner. The referral indicated the plaintiff had developed pain in her shoulders in 2010.
[3]Exhibit “C”
18 Accompanying the referral were the results of a left shoulder x-ray and ultrasound scan performed on 1 September 2010. The left shoulder x-ray showed anterior acromial spur formation. There was also evidence on ultrasound scan of subacromial bursitis and bursal surface bunching with abduction.[4]
[4]Exhibit “C”, Plaintiff’s Court Book (“PCB”) 44
19 A right shoulder ultrasound dated 28 October 2011 showed subacromial bursitis with bursal bunching. The plaintiff had subsequently undergone an ultrasound-guided right shoulder steroid injection on 8 November 2011.[5]
[5]Exhibit “C”, PCB 44
20 Further investigations were performed on 3 September 2013 and shoulder x‑rays showed a mild degenerative change in the right acromioclavicular joint. A left shoulder ultrasound of the same date purported to show no obvious abnormality.[6]
[6]Exhibit “C”, PCB 44
21 At the initial consultation on 26 March 2014, Mr Pullen took a history that the plaintiff was a forty-nine-year-old, right-hand dominant meat-cabinet attendant at Woolworths. She had developed bilateral shoulder problems while in the employ of Woolworths. She indicated she had initially developed left shoulder problems in 2010, and linked the onset of her left shoulder problems with repetitive work activities while in the employ of Woolworths. Further, she was now particularly troubled by right shoulder pain, which was present both at night and when reaching, and which had commenced in approximately 2011. The pain had come on and increased gradually.[7]
[7]Exhibit “C”, PCB 45
22 On examination, the plaintiff had a restricted range of active motion on both sides because of pain.[8]
[8]Exhibit “C”, PCB 45
23 A review of previous x-rays and ultrasound scans of the plaintiff’s shoulders indicated bilateral subacromial spurs, with the right worse than the left.[9]
[9]Exhibit “C”, PCB 45
24 Based on the history and investigations, Mr Pullen sought permission from the WorkCover insurer to proceed with a right shoulder arthroscopy. He stated, “In this document I noted the clinical indication for surgery was right shoulder pain following work activity”.[10] Permission was granted.
[10]Exhibit “C”, PCB 45
25 On 27 May 2014, a right shoulder arthroscopy and subacromial decompression was performed. At operation, a large subacromial spur was identified and removed. A partial thickness tear of the rotator cuff was debrided.[11]
[11]Exhibit “C”, PCB 45
26 At review on 11 June 2014, the plaintiff was having problems with her left shoulder and was keen to proceed with left shoulder surgery as soon as possible. Permission was sought from the WorkCover insurer to proceed with a left shoulder arthroscopy and subacromial decompression. Once again, Mr Pullen stated, “In this document I noted the clinical indication for surgery was left shoulder pain following an injury at work”.[12] Permission was granted.
[12]Exhibit “C”. PCB 46
27 On 22 July 2014, a left shoulder arthroscopy and subacromial decompression was performed. At operation, a large subacromial spur was identified and removed. A small area of tendinopathy in the supraspinatus tendon was debrided.[13]
[13]Exhibit “C”, PCB 46
28 At review on 10 December 2014, Mr Pullen noted that the plaintiff had persistent shoulder pain despite her left shoulder surgery. She indicated the pain was better than her pre-injury levels of discomfort, but had not resolved. Permission was obtained to perform a left shoulder MRI scan. Having been granted, the scan taken 6 January 2015 showed evidence of subacromial and subdeltoid bursitis. Further, there was moderate degenerative arthropathy of the AC joint. There was a partial thickness tear of the articular surface of the supraspinatus tendon (left shoulder).[14]
[14]Exhibit “C”, PCB 46
29 Permission was sought for a subacromial cortisone injection to be performed, and was granted.
30 On 20 April 2015, a right shoulder ultrasound was performed, which showed a full-thickness tear of the supraspinatus tendon measuring 11 millimetres. This was on a background of tendinosis.[15]
[15]Exhibit “C”, PCB 47
31 At review on 20 May 2015, the plaintiff was having persistent problems with left shoulder pain and had also developed right-sided symptoms.
32 Permission from the WorkCover insurer was granted to perform a right shoulder arthroscopy, subacromial decompression and rotator cuff repair on 11 August 2015. Once again, Mr Pullen noted “the clinical indication for surgery was right shoulder pain following an injury at work”.[16] At operation, a one-centimetre full thickness tear of the supraspinatus tendon was seen. This tendon was repaired using a suture anchor.[17]
[16]Exhibit “C”, PCB 47
[17]Exhibit “C”, PCB 47
33 At review on 25 February 2016, the plaintiff indicated an improvement in her right shoulder symptoms following surgery in August 2015; however, she still complained of residual pain and she also had some ongoing left shoulder pain. Operative and non-operative treatments were discussed, but the plaintiff indicated that she would proceed with non-operative treatment, including physical therapy, and analgesics as required.[18]
[18]Exhibit “C”, PCB 47
34 At that stage, Mr Pullen’s diagnosis was:
“Right shoulder full-thickness supraspinatus tendon tear.
Left shoulder impingement and rotator cuff tendinopathy.”[19]
[19]Exhibit “C”, PCB 48
35 As at February 2016, Mr Pullen considered the plaintiff would be able to perform light duties at work only:
“… This would need to be restricted to activities that involved no heavy lifting and no repetitive overhead activities. Within these restrictions, [the plaintiff] would be fit to perform work duties. I believe it is unlikely that these work restrictions will resolve into the future. … [The Plaintiff] will always have a restriction in her work capacity into the future.
…
She is likely to have some residual pain. This may affect her ability to reach above shoulder height and perform heavy lifting activities … .”[20]
[20]Exhibit “C”, PCB 48
36 In his second report dated 21 December 2017, Mr Pullen noted he reviewed the plaintiff on 14 September 2016. At this time, she had developed a left AC joint ganglion after a period of improvement in her shoulder function. Operative and non-operative treatments were discussed. He encouraged her to have the cyst aspirated. The WorkCover insurer requested further information about the relationship between the proposed left AC joint ganglion cyst aspiration and the [work] incident dated 13 June 2013.[21] Apparently permission was granted and an ultrasound-guided aspiration and injection of the left AC joint ganglion was performed on 20 October 2016. Mr Pullen did not follow up thereafter.
[21]Exhibit “C”, PCB 49
37 Prior to being referred to Mr Pullen, the plaintiff had been referred to orthopaedic surgeon, Mr Altay O Altuntas, who reported on 6 January 2014 and 25 February 2014.[22] In his second report, Mr Altuntas took a similar history to that of Mr Pullen, but he was of the view that there was “limited good surgical options for improving her symptoms”.[23]
[22]Exhibit “E”, PCB 51-53
[23]Exhibit “E”, PCB 53
38 The plaintiff was also assessed by Dr Robyn MacBeth, specialist occupational and environment physician, on 22 February 2018. Having taken a consistent history of employment duties and treatment, Dr MacBeth stated:
“In my clinical opinion, based on my assessment and the information available, Ms Stevens has most likely sustained the following shoulder injuries, as a result of performing the inherent requirements of her pre-injury role, in particular heavy lifting above shoulder and head height, pushing heavy trolleys, repetitively pulling plastic wrapping over meat, and frequent forward reaching:
·Right shoulder impingement, bursitis, and partial thickness tear of the supraspinatus tendon.
·Left shoulder impingement, bursitis, and supraspinatus tendinopathy.”[24]
[24]Exhibit “F”, PCB 72
39 Further, Dr MacBeth considered that the pain and dysfunction would continue into the foreseeable future and that she would never be fit to return to her pre-injury meat-cabinet attendant duties.[25] It was her opinion that the employment with Woolworths “was and continues to be a cause of her right shoulder and left shoulder injuries”.[26] Further, she thought the combined impact of the right and left shoulder injuries meant that she would be fit to work five hours per day, three days per week, equivalent to fifteen hours per week. In this regard, she thought she could work part time on a consistent and reliable and permanent basis without the risk of re-injuring when considering age, education, skills and work experience, place of residence, medical information, any occupational rehabilitation services provided, any effects of medication and incapacity, and restrictions arising from the combined impact of her right and left shoulder injuries.[27]
[25]Exhibit “F”, PCB 72
[26]Exhibit “F”, PCB 73
[27]Exhibit “F”, PCB 75
40 The plaintiff was also examined for medico-legal purposes by orthopaedic surgeon, Mr Russell Miller, who reported on 19 March 2018 and 5 April 2018.[28] Mr Miller had been provided with reports from Mr Pullen and the plaintiff’s serious injury affidavit, among other documents. In the first report, he took a history that:
“… There is ache, discomfort, and pain in the shoulders, worse with repetitive and overhead activities. She states that the symptoms are similar but less severe in the left shoulder. The symptoms cause her difficulty with activities of daily living and sleep disturbance. She has had moderate improvement in both shoulders following surgery.”[29]
[28]Exhibit “G”, PCB 77-87
[29]Exhibit “G”, PCB 79
41 Mr Miller recited the work descriptions as follows:
“… She commenced casual work for Woolworths in October 2004 and commenced full-time hours some years later. This was physically demanding work involving heavy lifting above shoulder height and repetitive activities. Following the development of shoulder problems she undertook periods of leave and modified duties.”[30]
[30]Exhibit “G”, PCB 81
42 In terms of work relationship, Mr Miller stated:
“This is complex and multifactorial. It is likely that there was pre-existing but minimally symptomatic disease in both shoulders and [she] had a predisposition to develop rotator cuff problems and capsulitis. It is likely that the … [plaintiff’s] significant physical work over a protracted period of time has contributed to the evolution of this disease. The current clinical status of both shoulders is therefore regarded as being substantially work related.”[31]
[31]Exhibit “G”, PCB 83
43 Mr Miller considered the plaintiff would have difficulty with work involving repetitive right arm actions, or use of the right arm in the above-shoulder position and, similarly, with the left shoulder, work involving repetitive left arm actions and use of the left arm in the above-shoulder positions. The restrictions were likely to be permanent and substantially work related. He noted the plaintiff had returned to work as a teacher’s aide, which was consistent with her ongoing shoulder problems.[32]
[32]Exhibit “G”, PCB 83
44 As to the plaintiff’s activities, Mr Miller stated:
“She lives at home alone. She has difficulty with domestic and gardening activities which she states ‘don’t get done’. There is self-funded gardening assistance for major work once every two years. She will have a reduced capacity for heavy domestic and gardening activities as a result of orthopaedic injury.
…
[The plaintiff] stated that she previously enjoyed swimming, cycling, social sports, and baking, but has not been able to resume these. She will have a reduction in her capacity for pre-injury, leisure, and recreational activities.”[33]
[33]Exhibit “G”, PCB 84
45 As to capacity for work, Mr Miller noted that the plaintiff coped with her work as a teacher’s aide, working three days a week, “albeit with ongoing symptoms”.[34] He further noted:
“… That level and type of work is consistent with the ongoing effects of (a) the right shoulder injury alone, (b) the left shoulder injury, and (c) the combined impact of the left and right shoulder injuries.”[35]
[34]Exhibit “G”, PCB 84
[35]Exhibit “G”, PCB 84
46 The employer had the plaintiff examined by specialist occupational physician, Dr Dominic Yong, who reported on 24 August 2017.[36] Dr Yong considered that the plaintiff had had operations to treat:
“• Right shoulder rotator cuff tear
• Left shoulder impingement and rotator cuff tendinopathy.”[37]
[36]Exhibit 2, DCB 18-33
[37]Exhibit 2, DCB 25
47 As a result, Dr Yong considered that there was bilateral shoulder dysfunction, with the right worse than the left.[38]
[38]Exhibit 2, DCB 25
48 Dr Yong took an occupational history as follows:
“Ms Stevens stated that she commenced employment with Woolworths in 2004 in the Wallan store. She stated that she was a part-time worker as a delicatessen attendant for a few months. She stated that after this, she moved to the meat department where there were 2 meat cabinet attendants and 3 butchers. She stated that her role involved handling stock in the walk-in cool room. She stated that she would carry boxes of meat from the pallet onto a flat-bed trolley. She stated that these could weigh up to 25 kg, such as pet food or corned silverside. She stated she would then push the trolley into the store and put the products into the shelves. She stated that the maximum height of the shelf was at head height. She stated she would also do the tasks where she would help the butchers, where she would wrap meat cut by the butchers. She stated that in the preparation area, she would receive the product on rollers and she would wrap them manually. She stated that there were also cleaning duties where she would use a cloth and chemicals to wipe down the display cases and the preparation area. She stated that she also would be required to clean the floors using a hose and a squeegee mop.[39]
[39]Exhibit 2, DCB 22-23
49 Dr Yong also stated:
“… [The plaintiff] stated that she had the initial onset of a left shoulder injury in 2010. She stated that she was working at the Woolworths store at Wallan and was a meat cabinet attendant. She stated that she did tasks with manual handling requirements, such as heavy lifting of boxes. She said that she worked with her arms at a high height, and did firm pushing and pulling actions. She stated that in 2010, she initially went to see a general practitioner with her left shoulder pain. She stated she was referred to have scans and was told that she had left shoulder bursitis. … .”[40]
[40]Exhibit 2, DCB 20
50 Otherwise, it does not appear that Dr Yong was asked to give an opinion about the relationship of the work duties to the identified pathology. In any event, when asked his opinion as to the natural course of any pre-existing condition without the effects of the duties performed in the course of her employment between October 2004 and January 2016, he stated:
“The prognosis of [the plaintiff’s] pre-existing condition was good.
…
It is unlikely that the pre-existing condition would have incapacitated the worker for her pre-injury duties in any event.
…
The pre-existing condition is unlikely to lead the worker to require surgery.”[41]
[41]Exhibit 2, DCB 27
51 In any event, Dr Yong was asked to consider the physical conditions only and considered that she had a current capacity to perform tasks with the following restrictions:
“• Avoid repeated above shoulder height tasks or reaching duties with the right or left arm.
• Avoid repeated firm pushing and pulling tasks with the right or left hand.
• Avoid lifting more than 5 kg on a repeated basis.
• Initial reduction in working hours.”[42]
[42]Exhibit 2, DCB 28
52 Further, Dr Yong considered the plaintiff could perform a number of tasks as set out in the IPAR Report dated 10 march 2016, being teacher’s aide, integration aide, data entry operator, call centre operator, administration assistant, security (control room) and security (gatehouse). He considered that she could perform all these occupations “with the recommended restrictions”, which were:
“A graduated return to work program is indicated. This would initially involve working reduced hours. She stated that she is currently working 15 hours per week. It would be reasonable to commence with these hours. This can increase on a graduated basis aiming to return back to her pre-injury working hours. This could occur over a 6-month period.”[43]
[43]Exhibit 2, DCB 29
53 Further restrictions were cited as follows:
“• Avoid repeated above shoulder height tasks or reaching duties with the right or left arm.
• Avoid repeated firm pushing and pulling tasks with the right or left hand.
• Avoid lifting more than 5 kg on a repeated basis.
• Initial reduction in working hours.”[44]
[44]Exhibit 2, DCB 28
54 I do not believe Dr Yong’s opinions to be significantly at variance with the plaintiff’s medical practitioners.
55 I note that both musculoskeletal physician, Dr Clive Kenna,[45] and consultant orthopaedic surgeon, Mr Vasudeva Pai,[46] both of whom were retained by the employer, support the plaintiff’s claim on causation and consequences.
[45]Exhibit “K”, 24 September 2013
[46]Exhibit “L”, 27 July 2016
56 Finally, the defendant relied on the opinion of Mr Damian Ireland, hand surgeon, dated 28 June 2017 with respect to the physical injuries to her shoulder.[47]
[47]Exhibit 1, DCB 11-17
57 Mr Ireland was not provided with a copy of the plaintiff’s affidavit, but he did have a description of the work duties as stated by Mr Pullen in his report dated 9 March 2016 referred to above. In any event, he took a history that in 2010, the plaintiff noticed the gradual onset of pain in her left shoulder over a two-month period.
“… At the time she was working at Woolworths in the delicatessen area wrapping meat. She explained that the meat would be delivered from the boner on a convey and she would wrap the meat and package the product and then place the product on the supermarket shelves. This work was done standing. The only above shoulder activity was occasional placing of the product on supermarket shelves. She was also required to unload pallets of package meat which would have been processed off the site. She explained that she would unload these crates of meat and sausages and place them on the supermarket shelf.
In 2013 she noticed a similar pain affecting her right shoulder in the course of her normal, then alternate duties work.”[48]
[48]Exhibit 1, DCB 12
58 There was no other history taken as to weights, repetition or degree of difficulty as experienced by the plaintiff, although Mr Ireland noted that at the time of the onset, she was working at Woolworths in the delicatessen area wrapping meat, and he cites no other possible alternative mechanism for the onset.
59 Otherwise the history of the treatment regime was consistent with that as outlined by the plaintiff’s treating practitioners.
60 As to causation, Mr Ireland noted:
“The worker developed the slow onset of left shoulder pain in 2010 in the course of her normal work which was largely sedentary and involved lifting up to 20 kg in weight intermittently. There was minimal work required with either extremity above shoulder level.”[49]
[49]Exhibit 1, DCB 14
61 As to work relationship, Mr Ireland stated:
“The worker has suffered from a soft tissue degenerative condition affecting both shoulders. There is nothing to suggest that any aspect of the work caused either of these problems. It seems unlikely based on the worker’s description of her work tasks that these work tasks were any more aggravating than were the normal activities of daily living.”[50]
[50]Exhibit 1, DCB 16
62 Clearly enough, this opinion is at odds with all the other practitioners. When Mr Ireland states that there is nothing to suggest that any aspect of the work caused either of these problems, it seems to me he should have turned his mind to the fact that the conditions came on in the course of the plaintiff’s employment, and there was no other identified precipitant, either volunteered by the worker or enquired of by Mr Ireland. Even if one takes at face value the opinion that:
“… [i]t seems unlikely based on the worker’s description of her work tasks that these work tasks were any more aggravating than were the normal activities of daily living”[51]
begs the question whether the work tasks themselves were a contributing factor to the onset or aggravation of the underlying disease.
[51]Exhibit 1, DCB 16
63 Further, however, Mr Ireland fairly states:
“It is possible that the degenerative nature of the bilateral shoulder condition would have become symptomatic regardless of her work, but as stated above, I’m not able to state with any conviction when this may have occurred or what may have provoked the condition to become symptomatic.”[52]
[52]Exhibit 1, DCB 16
64 In those circumstances, the work having been identified as a possible precipitant of the condition and no other factor being identified, I find, on the balance of probabilities, that the work with the defendant has indeed been a contributing factor to the onset of the bilateral shoulder condition.
65 With reference to the consequences of her bilateral condition, Mr Ireland stated:
“There is no job seeking report in the enclosures. The worker states that she would be able to increase her hours as a primary school teacher’s aide if this was offered to her. The worker would not be able to engage in any work that required lifting weights in excessive (sic) of 5 kg or any work that required her to function with either upper extremity at or above shoulder level for any period of time. With these restrictions she would be able to work at appropriate employment on a full-time basis.”[53]
[53]Exhibit 1, DCB 17
The Plaintiff’s evidence
66 The plaintiff’s description of her duties was set out in her first affidavit as follows:
“I commenced employment with the Defendant in October 2004. I was working at the Safeway supermarket in Wallan. Initially I was working as a casual in the deli. I moved to the meat department after several months. After a period of time I believe I became permanent part-time. After several years I became full-time. My full time hours were 38 hours a week.
My duties in the meat department included operating the manual hand wrapper, lifting boxes from pallets, moving boxes from pallets on to trolleys and shelves and conducting deep cleans of the meat cabinets and displays.
Operating the hand wrapper involved pulling plastic wrapping on a roller over meat repetitively and then transferring the meat to the scales. It was very repetitive work. I did this task on a daily basis and could do it for up to an hour and a half at a time. There were many days when I performed multiple periods of this task.
I also had to lift boxes of stock from pallets, place them on trolleys and then wheel the trolleys to the correct part of the store. The boxes varied in size and weight. Some of the them were heavy and very awkward to handle. Sometimes the pallets arrived with boxes stacked above my shoulder height, which meant over shoulder or overhead lifting and reaching.
Doing the deep clean of the meat cabinet and displays involved removing all the items and stock from the fridge and spraying and wiping all the shelves. In addition to the shelves, I had to get underneath the shelving and spray and scrub the area underneath the display.”[54]
[54]Exhibit “A”, PCB 12
67 The onset of symptoms were described as follows:
“I began to feel pain in my left shoulder in about 2010. It came on gradually. I took a period of time off work and the symptoms seemed to improve. Later that year the pain in my left shoulder returned and in August 2010 it became quite bad. I reported it and lodged a WorkCover claim.
I went to see my GP, Dr Blanchot. I had scans of my shoulder and attended a physiotherapist. My duties were modified and my hours were reduced for a period of time. The pain seemed to improve. I had some stress with one of my managers at about this time. Eventually I got back to normal duties.
…
Over the course of 2012 and 2013, the pain in my shoulders gradually worsened significantly. Eventually by about September 2013, the pain was so significant that I went to see Dr Blanchot again and lodged another WorkCover claim.”[55]
[55]Exhibit “A”, PCB 13
68 The plaintiff further set out the treatment consistent with that outlined by Mr Pullen above.[56]
[56]Exhibit “A”, PCB 13-14
69 After ceasing work in January 2016, the plaintiff described her progress thus:
“Eventually in about November 2016, I found a job as a teacher’s aide at a primary school, working 15 hours a week. I am paid $20.31 per hour. Initially the work was very stressful because of the particular student I was allocated. I was then allocated a different student. I experience shoulder pain throughout the day at work.
I remain under the care of my GP, Dr Yap. I see her once a month. I continue to see my psychologist, Rose.
I take medication as needed. I take Naproxen, Endone or Oxynorm, depending on how severe the pain is. I believe I take medication approximately once a month. I don’t like taking medication – I try to avoid it.
I experience constant pain in my right shoulder. The level of pain fluctuates. It seems to be made worse by reaching up or out. Opening and closing the garage door at home is painful. Reaching up to the high cupboards in the kitchen at home is painful. That is why I bought myself a stepladder. Dusting at home aggravates my right shoulder pain significantly. I generally leave the dusting for months at a time.
I find that driving for long periods of time is painful if I am not able to rest my arms. The WorkCover insurer paid for an armrest so that I am able to rest my left arm as well as my right arm. I also changed my car from a manual to an automatic, which has reduced the pain in my left shoulder when driving.
My sleep is disturbed. Sometimes it is pain in my right shoulder that stops me sleeping or wakes me up. At other times it is anxiety that interferes with my sleep. If I roll onto my left side I often wake up from pain.
I live alone and so I need to do most of the chores myself. I continue [to] do the gardening but do it less often. I pay someone to do most of the pruning because I find that difficult. However I still do the poisoning and some cutting back of plants when I can.
I try to do whatever maintenance at home that needs to be done. For example, last year the corrugated tin roof came away from the supporting structure and needed to be drilled back into place. I managed to get up on the roof and drill it back into place. This caused a significant flare up of pain. I needed to take pain medication for several days afterwards.
I purchased an upright vacuum to minimise the amount of bending.
Since suffering my injury, I have stopped going swimming. It is something I used to love doing, particularly in summer. I have found that since my injury any stroke now aggravates my shoulder pain, particularly my right shoulder pain. I also used to enjoy bike riding. I am able to ride my bike but I find it too painful to get it on to the rack that is attached to the back of my car. Before my injury, I enjoyed driving my bike to different parts of Melbourne or on holidays with me, for example to Warrnambool, and ride around there.
I used to enjoy making apple pie and pastries. I stopped doing this because the force required to make the pastry aggravates the shoulder pain. Emptying the electric frypan at home is painful because I need to lift it up and tip it over which aggravates my pain.
I have a caravan. I used to enjoy going away. I am still able to hook the caravan up to the car without aggravating the pain too much. However the caravan has a pop-top roof. Because this is overhead it is very difficult for me to put up myself. I don’t go away very often with the caravan anymore because I need to rely on other people to help me with the pop-top roof now.
I am coping with the work I am doing at the moment. I don’t know how many more hours per week I have the capacity to do. I don’t believe I would be able to do my old job. It is simply too physically demanding and would aggravate my shoulder pain significantly. I don’t believe I would be able to do a job that would involve me sitting at a computer for long periods of time – this would aggravate my shoulder pain.
I feel very depressed. I remain at home a lot. I used to enjoy taking holidays and being active. Now I generally remain at home. I worry a lot about the future.”[57]
[57]Exhibit 1, PCB 15-16
70 In her second affidavit, sworn 12 April 2018, the plaintiff swore thus:
“I continue to try not to take medication, as it affects my concentration and sometimes makes me drowsy, it also causes me to become constipated. I also understand that some pain medication is highly addictive and I do not want to become reliant on it. Avoiding medication leads to an increase in my pain levels however. When my shoulder flares, I take Endone and Naproxen.
I continue to experience pain in both of my shoulders. My right shoulder is the more severe. The pain in my right shoulder varies in intensity, but it is always there to some degree. The pain in the right shoulder is usually more when I have used my right hand or arm a lot, for example in the afternoon when I have finished work. I would describe the pain as a constant dull ache, but when it is bad, it can feel like stabbing, burning and pinching sensations.
I still live alone and my right shoulder pain and discomfort continues to interfere with my ability to complete household chores. I now leave chores like cleaning and dusting for months on end. My house is a mess. I continue to cook basic meals. Stirring food and preparing dishes aggravates my shoulder pain.
I also continue to struggle to reach with my right hand and arm. I have had to modify my life and adapt to accommodate for these restrictions. For example, I struggle to hand laundry on the clothes line.
I also continue to experience broken sleep due to my bilateral shoulder pain. I try to lie on my back or stomach if possible. If I roll over on my right or left shoulders, I will be woken with pain. Once awake, I struggle to get back to sleep. This often leaves me drowsy and lacking concentration the next day.
I am able to drive. I continue to use the arm rest for my left arm. When my right hand is on the steering wheel for a prolonged period, it becomes stiff and painful. I try to avoid driving long distances if possible.
I continue to avoid swimming and bike riding, as these activities aggravate my right shoulder pain. I also still avoid making pies and pastries, as I have difficulty rolling pastry and baking, due to my right shoulder pain and incapacity.”[58]
[58]Exhibit 1, PCB 18-19
71 As to her present capacity for work, the plaintiff swore:
“I continue to work at Wandong Primary School, as a teacher’s aide. I work 15 hours per week. I am coping with this level of work, but my right shoulder pain and discomfort is aggravated at the end of each work day. I need to rest each evening after work. I doubt that I could do a greater number of hours each week.
I don’t believe I could do my pre-injury duties, due to the pain and restrictions that I experience in my shoulders. My work at Woolworths was physically demanding and repetitive. It also involved over-head duties and raising my arms above shoulder level. I simply cannot complete these movements anymore, due to my bilateral shoulder injuries.
I have always worked and always been an industrious person. I don’t think I could work in food preparation or food sales as it requires repetitive use of my arms and shoulders, which would aggravate my pain. I also don’t think I could work as a shelf filler or store person as again, these roles require the constant use of my (sic) both my arms and shoulders and overhead reaching. I also have limited computer skills and have never worked in an office type role.”[59]
[59]Exhibit 1, PCB 19-20
72 Although the plaintiff was cross-examined, counsel for the defendant appropriately, in my view, submitted that no submissions would be made against the granting of a pain and suffering certificate, but it was not formally conceded. In my view, the submission was appropriate as the pathology and the resultant consequences would certainly meet the “very considerable” threshold.
73 In cross-examination, the plaintiff disagreed with the history taken by Mr Ireland that she was working in the galley in 2010. Further, it did not sound correct that the only above-shoulder activity was occasionally placing the product on supermarket shelves.[60] Also, she conceded she had basic computer skills, could use email, the internet and Facebook.[61]
[60]Transcript (“T”) 18, Line (“L”) 9
[61]T20, L30-T21, L3
74 It was put to the plaintiff she was able to cope with all aspects of her present job at the moment, to which she replied:
“… There’s aspects that I struggle with … Things like if I’m expected to participate in P.E. activities or assist with moving furniture – when classrooms change … It’s infrequent.”[62]
[62]T22, L19-26
75 Further, the plaintiff conceded she could lift up to about 5 kilograms, but she would have difficulty with forceful pushing or pulling, together with forward reaching.[63]
[63]T24, L1-26
76 Further, the plaintiff considered she took Naprosyn once every six weeks and Endone about the same.[64]
[64]T25, L1-4
77 As to pain, the plaintiff stated:
“The right side has constant pain but it flares up, both sides flare up.”[65]
[65]T25, L8-9
78 As to the taking of medication, the plaintiff stated:
“… I choose to not take the medication … [only] [w]hen my pain is probably at an 8 or 9 out of 10 … The average is maybe once every six weeks-ish.”[66]
[66]T25, L11-17
79 The plaintiff was then taken to her affidavit, where she stated that the right shoulder pain was aggravated at the end of the day and that she needed to rest each evening after work, and, accordingly, doubted that she could do a greater number of hours each week. She conceded she had not attempted to do more hours, but did not think she would be able to do some. When asked why, she stated:
“Every day at school my pain worsens during the day. More hours means more pain.”[67]
[67]T26, L8-9
80 On further cross-examination about the work, the plaintiff was asked:
Q:“Ms Stevens, yesterday you were talking to us about how part of your role before you were injured at Woolworths was unstacking pallets?---
A:Yes.
Q:How many pallets would you have unstacked each day, do you think?---
A:It would vary. Most days there was two pallets, some - Friday there was usually three, and Saturday there was always four, at least.
Q:So, it was between two and four?---
A:Yes.
Q:And the boxes on the pallets, they’d be between two and 25 kilos, is that right, depending on what the product was?---
A:Yes.”[68]
[68]T30, L9-19
81 When questioned about the frequency of the pallets arriving with boxes stacked above shoulder height, the plaintiff settled upon “It was more than every now and again”.[69]
[69]T31, L1-2
82 The plaintiff was also cross-examined about her having obtained a Certificate II in Security in the past, and she replied, “there was a physical aspect to that course … About restraining people”.[70]
[70]T38, L16-19
83 In re-examination, the plaintiff was asked about the number of hours that she could perform in her present job and she said her employer had mentioned there was a possibility of more hours the year after, which would have been in 2017; there was a possibility of twenty hours.[71] She was asked if she would be able to do twenty hours a day and she replied:
[71]T48, L1-4
A:“No
…
A:Every day I’m at school there’s pain, I mean, there’s always pain in my shoulders. Throughout the course of the day when I’m at school the pain gets worse. So, when I go home my shoulders are - they hurt more than the start of the day, that’s just throughout the course of the day.
Q:So, what do you do when you get home?---
A:I sit and I do nothing for about an hour and then I just - yeah, I don’t do a lot.”[72]
[72]T48, L7-16
84 When asked about using computers in order to obtain her present qualification, she stated:
A: “I was overwhelmed.
…
A: I never had to use computers to that extent before. I’m not experienced with them. The assignments were done on Word … I don’t touch type, so everything took longer. My shoulders played up because I was trying to get assignments done, I had to spend a lot of time at the computer.
Q: How long is a lot of time?---
A: Four, six hours.
Q: In one go, or broken up over a day?---
A: In one go because I wanted it done.
Q: And what were your shoulders like if you did that period of time on a computer?---
A: Painful.
…
A: They were burning and particularly the right shoulder, it would have a burning sensation. It got really hard to - to move to get clothes on, it - by the end of that - that time on the computer.”[73]
[73]T50, L13-29
Findings
85 I find that the plaintiff is a witness of truth and that she answered questions in cross-examination, doing the best she could.
86 I accept her complaints of ongoing pain and I find that she is a stoic individual who chooses to put up with a level of pain rather than take medication.[74]
[74]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
87 I further accept that by the end of the working day in her present job, the plaintiff suffers from pain and aching in the shoulders, and requires rest to recover. I also note that she has a day of rest in between the three days of work. I accept that the fifteen hours per week is probably at her maximum, but it is conceded by both counsel, even if she worked twenty hours per week, she would still be within the threshold where she is entitled to a certificate for economic loss.
88 In all the circumstances, leave will be granted to the plaintiff to issue proceedings for damages consequential upon bilateral shoulder impairment for economic loss and there being no submission to the contrary, and in accordance with the principles laid down in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[75] leave will also be granted to issue proceedings for pain and suffering damages.
[75][2009] VSCA 170
89 I shall hear the parties as to any consequential orders.
- -
0
3
0