Stoleski v MCC Ragman Pty Ltd

[2017] VCC 1541

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CI-16-04253

VALENTINA STOLESKI	Plaintiff
v
MCC RAGMAN PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 30 October 2017
DATE OF JUDGMENT:	30 October 2017
CASE MAY BE CITED AS:	Stoleski v MCC Ragman Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VCC 1541

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury-right arm
Legislation Cited:     
Cases Cited:            
Judgment:                Leave granted for pain and suffering damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Pierorazio	LN Christie & Co
For the Defendant	Mr J Simpson	Russell Kennedy

HIS HONOUR:

1       Leave is sought with respect to an impairment of the dominant right arm by this plaintiff who came to this country from Macedonia in 1985. She is 51 years of age. She was employed by the defendant company performing manual work over the years from August 2006 until January 2011.

2       Her work involved repetitive manual handling of unwanted clothing that was turned into rags to be sold in industry. It involved cutting and sorting old rags from donated clothing. There was  pushing of large volumes of material through a cutting machine as well as lifting bins weighing up to 25 kg. Some bins had to be moved across a distance of up to 40 metres at times and there was also the  task of emptying bins that weighed up to 20 kg each. The work was fast paced and she was paid per weight of clothing that she sorted and dealt with rather than for the hours worked. She generally worked about five hours a day Monday to Friday.[1]

[1]Plaintiff’s Court Book (PCB) 20

3       She first attended her general practitioner, Doctor Malek, on 15 January 2011 with symptoms that were predominantly in the right elbow. Right shoulder and right wrist symptoms have also been suffered in the course of this employment and it is the impaired function of the right arm that is relied on with the elbow probably remaining as the most painful part of the injured levels.

4       A course of treatment was then started that has continued right up to the present day with respect to ongoing medication for pain and occasional attendances on this general practitioner. She was unable to return to that manual job she had with the defendant and  ceased work on 20 January 2011.

5       She is a woman with a good employment record over many years. Consistent with her excellent work motivation she accepted constant manual work was beyond her. So she did a course and obtained work as a security officer performing largely static security work around shopping centres starting in late 2012. She has worked for three security firms and is still working at a shopping centre as a casual security officer performing 20 to 25 hours on average a week. It is work that has minimal if any manual tasks and she is able to cope with such employment and indeed has done so over the last five years. It is her intention to continue working in that capacity. Accordingly she seeks leave for pain and suffering damages only.

6       There is only one issue for determination with respect to these admitted compensable injuries. It  is whether the consequences can be fairly described as being at least very considerable when judged by comparison with other cases in the range of possible impairments.

7       Pain is one of the major consequences relied on. Also the interference the impairment causes to household duties and activities of daily life such as the capacity to sleep are also relied on. Her household responsibilities are considerable. She is a divorced lady, so a single mother who has two adult children. They both live at home. Unfortunately both suffer serious medical conditions. Her daughter has multiple sclerosis and her son suffers from Crohn’s disease.

8       The plaintiff has suffered from back and neck symptoms over many years. Also anxiety has been a problem for her. I accept her evidence these conditions cause no real interference with any aspect of her life now. The medical evidence indicates however that as far back as 15 years ago some of these problems required treatment but  they have never interfered with her being able to work in various forms of employment. They still do not prevent her working in the employment she has sensibly gone to once the constant manual tasks of her job with the defendant proved to be beyond her capacity due to the right arm impairment. I am satisfied that judging her now there are no medical issues other than the right arm symptoms that have any relevance to an assessment of the consequences of the right arm impairment on her life.

9       In a claim such as this where a well- motivated worker has sensibly moved away from employment that she was no longer capable of after suffering injury, an assessment of her as a witness is crucial. She has proved she is able to continue working a similar number of hours most weeks in that alternative work as it places minimal demands on the ability to use her dominant arm. However she puts up with pain at work, takes tablets and works short shifts to cope with it. [2]

[2]Transcript (T) 33

10      It was of considerable advantage to be able to not only hear but also to observe her demeanour  in the witness box. I found her to be a witness of credit and reliable. She readily agreed she had neck and back pain in the past and also suffered from some anxiety. She did not hesitate to admit that she was in a motor vehicle accident in March 2015 and went in to see her general practitioner on that same evening. None of this impacted on her credit. Her car was damaged to the point of not being driveable and she had to be  taken from the scene by a friend. She was shocked, shaking and  feeling anxiety which is perfectly understandable in the circumstances. The doctor’s records indicate she was complaining of some symptoms that were mainly spinal but in the end this evidence carried no weight in terms of impugning her credit.

11      The court  was shown about ten or so minutes of video evidence on 21 July 2016.[3]  She was in a supermarket and pushing a trolley and taking a few items off the shelves. There was nothing repetitive or heavy in any of the activities that were depicted. Also it was obvious she handled items that were not large or heavy on a one by one basis when a normal shopper would put multiple items in the one bag for easier and quicker handling. For a person with a dominant right arm in my opinion she used her left arm much more than one would have expected. Even when she got home she moved a wheelie bin with her left arm and not her right. The times on the video indicate she was under surveillance for a number of hours but it was only a very small segment of time that was shown. It remains of course that this is merely a very brief snapshot of a very small portion of one day in her life since she suffered injury  seven or more years ago. The plaintiff has never suggested she is an invalid. Of course she can drive and do the shopping. She must do both to fulfil her demands as a single mother and a bread winner. She just gets on with it.[4] I reject any suggestions that in a modern car model like her Holden Cruze vehicle, her lifting up the boot and turning  the power assisted steering wheel demonstrate a capacity inconsistent with her evidence.

[3]Exhibit 1

[4]T53

12       A resume from 2012 or 2013 that was put together to try and get alternative employment does not detract from her credibility.[5]  Firstly it was a Workcover agency assisting her to obtain other work and it assisted in compilation of the document. Secondly some of the language used is clearly beyond her English skills. This plaintiff did not even understand what the word “disturbing” meant. Thirdly and more importantly,  she joins the endless list of motivated workers I hear daily in this jurisdiction who rarely say anything to prospective new employers due to the effect  on their  chances of a job if injuries or Workcover are even mentioned. In fact after she obtained work in her new field she then lost one security guard  job when her boss found out about her Workcover history.

[5]Exhibit 2

13      In the end I found her to be a witness who was at all times  truthful. If anything she had a stoical attitude to her arm impairment and just gets on with life both in alternative lighter work and around her daily tasks. I accept her evidence that over the last seven or so years she has had ongoing pain especially in her right elbow, as well as wrist and shoulder, for which she has required pain killers on prescription.[6] This situation continues and she is still requiring Mobic. [7]. I accept her evidence when she said “I continue to suffer from ongoing and constant pain in my right elbow and, to a lesser extent, right wrist and shoulder.”[8]

[6]PCB 21

[7]PCB 23

[8]PCB 21

14      I am required to judge the consequences of the impairment now. I accept her recent affidavit evidence sworn in August 2017 that her symptoms and restrictions have failed to improve. She suffers constant pain which affects her sleep and regularly wakes her up at night. I also accept her evidence that many tasks around home have been affected. For example “My pain and restrictions continue to impact on my ability to perform domestic tasks such as vacuuming, mopping, washing and cleaning the bathroom. I can no longer manage the gardening as in the past I was able to mow the lawn to maintain the garden. Now, I have to pay a gardener $35 once a month and he attends to same.”[9]

[9]PCB 24-25

15      A number of other activities that are just taken for granted in normal life have been seriously impacted. For example she has lost strength in her arm and has difficulty even  undoing lids on jars and bottles. She is restricted in her cooking such as lifting heavy pots and washing dishes. She drops items such as glasses and plates at times because of the loss of strength in her right arm. She has to get help around the home and the emotion she showed in court when describing that illustrated how that dependence impacted on her. Obviously she still does the shopping but has difficulty lifting heavy items of shopping and the video indicated that she really chose single items that had no great weight in them as she went around the supermarket.[10]

[10]PCB 25

16      The uncontested evidence of her daughter confirms the very real interference with the plaintiff’s daily life around the home and generally. The inability to get a good night’s sleep is described in some detail as it can lead her daughter to get involved. [11]

[11]PCB 26-27

17      I accept that the constant pain she has suffered over the years since she was injured at work, which is based mostly on the elbow but is also suffered in the right wrist and shoulder, amounts to a very considerable consequence for this lady. When fairly judged by comparison with other impairments in the range  it speaks of “serious injury”. She underestimates her pain if anything and the fact that she has a stoical attitude to it is not something that in any way diminishes from the level of the consequences her dominant arm impairment has caused and will cause for the foreseeable future.

18      There is very little attention that has to be given to the medical evidence in this case and it is largely all one way. It only needs to be dealt with briefly. Her general practitioner Dr Malek knows her best of all. He has provided a number of reports and the considerable clinical notes, reports  and records from his practice have also been tendered.[12]

[12]PCB 29-48, Defendant’s Court Book (DCB) 9-65

19      Given the requirement to assess the impairment now the most recent report from the general practice is most useful. In May this year the diagnosed injuries were described as chronic lateral epicondylitis right elbow, tenosynovitis of the right wrist with a secondary ganglion  together with right shoulder supraspinatus tendonosis. These were described as  all being caused by her employment as a process worker and there was no management by way of any surgical option open to her. The doctor said “In my opinion her injury is long-term and likely to persist (permanent).”[13]

[13]PCB 46-47

20      While this practitioner who knows the patient very well said that she was totally and permanently incapacitated for her pre-injury manual work, she was able to continue working as a security guard on a casual basis. She was permanently incapacitated from any work requiring repetitive movement of her right arm and he thought she would not be able to participate in a number of sports and would experience difficulty with respect to many housekeeping tasks.[14] When the sports and tasks around the house are looked at, they are ones that require usage of her right arm and this evidence is entirely consistent with the evidence of the plaintiff about her current symptoms and difficulties.

[14]PCB 47

21      Both the treating orthopaedic surgeon Mr D Gya and the treating physiotherapist Miss S Arggawal have not reported now for many years. The reports are of very limited if any assistance in an assessment now. The surgeon has not seen her since July 2011. He thought the tennis elbow caused by her employment that he was treating her for had stabilised with no surgical option open.[15] The physiotherapist last saw her nearly 6 years ago in January 2012.[16] She diagnosed the right elbow and shoulder injuries which were not then stable in her opinion. She did make some significant findings however. These were a series of measurements of dominant right arm strength and function showing how it was much less than half of her left arm.[17] This is significant. Evidence is not required to convince me that a person’s dominant arm is virtually always much the stronger and better functioning limb when gauged using such scientifically  measured tests.

[15]PCB 51-52

[16]PCB 54

[17]PCB 56

22      The medico-legal assessment of Mr K Brearley, general surgeon, was in August 2017. He found permanent injuries by way of lateral epicondylitis of the right elbow, rotator cuff lesion of the right shoulder and ganglion of the right wrist.[18] These were caused by her employment and no treatment other than conservative management was open. He put real restrictions on her by way of avoiding heavy lifting and repetitive use of the right arm. She was unable to do any work above shoulder height. Clearly these limitations impact on the innumerable activities of daily life and not just on the tasks in paid employment. As to the effect on social domestic and recreational activities he said “All of these activities have been disturbed by her difficulty in using her right arm for all purposes”.[19]

[18]PCB 65

[19]PCB 66

23      I accept these statements and find they are very considerable consequences in the plaintiff’s daily life. She sensibly modifies her employment, stoically puts up with constant pain and suffering problems but she is still impacted in pain and suffering terms in a very considerable way.

24      The plaintiff tendered three reports from the rheumatologist Dr K Fraser. He saw her at the request of the insurer. That was in 2011, 2012 and 2013 so again his views are now quite dated. He accepted causation due to her employment tasks of cutting and sorting materials and said she was not fit for pre-injury duties. He said “She was suitable for light work, with a restriction of 2.5 kg and no forceful use of the right arm.”[20] Sensibly this stoical woman went off and qualified for light non-manual work where she continues to work part-time. He thought her current duties as a security officer were appropriate. The restrictions he placed on her are in my view very considerable consequences when the demands on her as a single mother and bread winner  who has a lot of responsibilities around her family and personal life are considered. These are very real restrictions on the use of the dominant upper limb in activities we just take for granted in the demands of daily life when usage of the dominant arm is called for.

[20]PCB 66N

25      The defendant tendered some fifteen years ofclinical notes from her family general  practice.[21] They are extremely brief, inadequate and obviously computer-driven. I raised with counsel that I consider them deserving only  very limited weight. They could not possibly be anything like a proper record of the interchange between doctor and patient. Without hearing from the general practitioner I am more assisted by the written report that I have already referred to that was authored earlier this year.

[21]DCB 9-65

26      A hand surgeon Mr D Ireland examined the plaintiff for the defendant in May 2017. He accepted she had all three conditions being the elbow, shoulder and wrist of the right arm. He thought the symptoms were only mild. They did not impede her security guard work or preclude her from normal activities and household chores.[22]

[22]DCB 4

27      I reject the defendant’s submission that the adjectival description doctors put on the symptoms is such that the application is not proved. The real key to this case, in the face of universally accepted right elbow, shoulder and wrist injuries, is my assessment of the plaintiff. She is a stoical, well-motivated woman. I accept what she says about the impact of her symptoms of pain and restriction on both her work and her daily life.

28      Pain is subjective. She is a non-complaining plaintiff. She is also reliable and truthful. She is the best judge of the level of these arm symptoms occurring as they do at three levels and how they impact on her work capacity and her enjoyment of life. I do not accept it is a case of mild pain or mild consequences generally. I accept she has chronic, constant right arm pain still, even though it is seven or more years from when it started. She still takes painkilling medication daily. This pain is very considerable for her and also when looked at fairly in an objective sense. It  meets the test of “serious injury”.

29      There is no need to elaborate further on these findings but less there is any doubt about it, it is not only her pain that has satisfied the test. But also the effects and limitations on her home and family responsibilities are very considerable and discharged the onus on.

30      Similarly, the loss of her ability to enjoy a good night’s sleep is of itself a permanent consequence that is very considerable.

31      Accordingly I grant leave to bring proceedings for the recovery of pain and suffering damages.