Sudar v Druids Friendly Society Limited
[2017] VCC 1034
•3 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00142
| MARA SUDAR | Plaintiff |
| v | |
| DRUIDS FRIENDLY SOCIETY LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 July 2017 | |
DATE OF JUDGMENT: | 3 August 2017 | |
CASE MAY BE CITED AS: | Sudar v Druids Friendly Society Limited | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1034 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left and right shoulders and lower spine as a result of a slipping incident – whether injuries related to the incident, or naturally occurring degenerative disease - whether the consequences very considerable – nature and extent of loss of earning capacity – credibility of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Mr A T Coote | Drakulic Lawyers |
| For the Defendant | Mr A D Clements QC with Ms C A Kusiak | Lander & Rogers |
HIS HONOUR:
Preliminary
1 On 9 May 2012, while working as a cleaner and kitchenhand at an aged-care facility run by the defendant, the plaintiff, Ms Sudar, slipped on her way to the bathroom. She claims to have jarred her back, and her right arm hit part of a doorway, causing pain in her right shoulder. Either at that time, or later, she developed pain and restriction in her left shoulder.
2 Ms Sudar went to see her doctor and has undergone conservative treatment through to the present time. After the incident, her work duties were modified and eventually, in October 2014, she ceased work, and has not worked since. Prior to the incident, she had a range of health issues.
3 Ms Sudar claims ongoing pain in both shoulders and her lower back, and a restriction in a range of recreational, domestic and social areas.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of her employment on 9 May 2012. The body functions said to be lost or impaired are of the lower spine; alternatively, bilateral shoulder function. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act. Leave is sought in respect of both pain and suffering and loss of earning capacity.
5 Ms Sudar was the only witness called to give evidence and be cross-examined. Various medical, radiological and clinical notes and reports, and other WorkCover documents, were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant, and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Ms Sudar is fifty-four years of age. She is married with two adult children. She was born in Croatia and came to Australia in 2001. In Croatia, she was a factory worker and, for a time, a photographer.
7 Ms Sudar started work with the defendant in 2003 at one of its aged-care facilities and worked as both a kitchenhand and a cleaner. She had concurrent employment with another employer, Craigcare, working about one day a week.
8 According to her affidavit,[1] from about 2007, she suffered pain in her back, although in the mid to upper part of the back. Further, she was diagnosed with a disorder, Sjögren’s Syndrome, and was treated by a rheumatologist, Dr Marie Feletar. She said the disease was well controlled with medication. She said that she had suffered some problems with her right shoulder, in particular when she was required to reach out and upwards, but these problems were relatively minor and did not affect her capacity to work nor to carry out a range of other social and domestic activities.
[1]Plaintiff’s Court Book (“PCB”) 8
9 An examination of the reports of the various practitioners indicates the problems with both Ms Sudar’s right and left shoulders were more extensive than claimed in her affidavit. At the time of the incident, Ms Sudar was working three days per week for the defendant, about seven-and-a-half hours per day. She divided her work between cleaning and as a kitchen assistant. She worked for Craigcare one six-hour day per week.
The injury and its consequences
10 Ms Sudar deposed that when she entered a bathroom at the premises, she slipped on some water and her right foot “jolted forward”, causing a jarring to her back. She said, further, that her right arm hit the door handle. She said this caused significant bruising to the area of the arm between the shoulder and elbow. She said she felt immediate pain in her right arm and lower back.
11 Ms Sudar said the bruising was obvious and was commented on by those at work. She said she complained to representatives of the defendant, and her duties were changed such that she worked only in the kitchen. She went to see her local general practitioner, Dr Pjesivac, on 12 June 2012. According to his clinical note:
“Low back pain for … [one month]
Slipped at work in a toilet (near fall experience) did not have fall but jerked her lower back.
Ever since then - low back pain gradually increasing in severity and lately … [one week] radiating to her right thigh.
Poor tolerance to standing/ sitting/ repetitive bending.
Did not notify her employers. [C]ontinued working/ took feldene she usually takes for her arthritis.”[2]
[2]PCB 67c
12 There was no reference to any right shoulder injury. According to those clinical notes, it was not until 29 November 2013 there was a mention of the right shoulder:
“History:
of intermittent right shoulder pain / worse over the last … [three months] ... .”[3]
[3]PCB 67b
13 Prior to the incident, and from 2007, Ms Sudar had been seeing Dr Feletar, rheumatologist, for treatment of her Sjögren’s Syndrome, amongst other things. In a report of January 2011,[4] that practitioner noted Ms Sudar had right shoulder pain, which was an intermittent troublesome problem, and for which she was taking Feldene and Somac. That practitioner’s examination showed there was clicking and crepitus. She was referred to a physiotherapist. By July 2011,[5] most of Ms Sudar’s complaints were “mechanical and related to right shoulder pain …”. An ultrasound and x-ray were taken, but were normal. According to her report of 21 March 2012,[6] only a month before the incident, Dr Feletar noted the plaintiff was suffering mechanical neck and shoulder pain.
[4]PCB 37
[5]PCB 38
[6]PCB 39
14 In cross-examination, Ms Sudar accepted that she had some right shoulder pain before the incident, although she said it was minor and in a different area to the pain which she suffered after the incident. She accepted there was some clicking, but that that was not the source of the pain.
15 Dr Feletar also treated Ms Sudar for thoracic and upper back pain.
16 Ms Sudar continued to see Dr Pjesivac after the incident. A CT scan of the lumbar spine of June 2012 noted minor disc degeneration with bulges at several levels but without evidence of neural compression.[7] She was treated with pain-relieving medication. She said the pain started to radiate down her right leg after about a month. She had also started to develop some pain in the left shoulder, which she said came about as she tried to protect her right shoulder. An ultrasound of the right shoulder of November 2013[8] showed no evidence of rotator cuff problems, with mild to moderate subacromial bursitis. The acromion was noted to slope to some degree. By February 2014, Ms Sudar was suffering left shoulder pain, and an ultrasound showed a normal examination.[9]
[7]PCB 87
[8]PCB 88
[9]PCB 91
17 In June 2012, Dr Pjesivac referred Ms Sudar to Mr George Kokovas, a physiotherapist. His notes record “chronic low back pain”.[10]
[10]PCB 53
18 Ms Sudar continued to consult Dr Feletar for the management of the Sjögren’s Syndrome and for “right shoulder rotator cuff disease”. She administered an injection which provided temporary relief. There is no reference in any of Dr Feletar’s various reports or letters to the incident, or to any right shoulder pain resulting from it. In evidence, Ms Sudar said she thought she would have told Dr Feletar but was unsure.
19 It was put to Ms Sudar in cross-examination that she did not return to Dr Pjesivac to complain of lower back pain until December 2013. She explained that she was at work, and taking painkillers. It was put to her that in the Incident Report Form,[11] although there was reference to a strain to her back and bruising to her right arm, there was no reference to right shoulder injury.
[11]PCB 157
20 It was not until 7 February 2014 that Ms Sudar completed a WorkCover Claim Form.[12] She described her injuries as to the left and right shoulders and back.
[12]PCB 159-160
21 In May 2014, Ms Sudar was referred to Mr Steve Csongvay, orthopaedic surgeon. He obtained a history of the incident, causing a strain to her lower back, and noted that she had hit her right arm on the door handle. She described to that practitioner, increasing shoulder pain, both left and right, and pain to the lower back. Mr Csongvay thought Ms Sudar had bilateral rotator cuff tendinitis with subacromial bursitis. He noted a good response to cortisone injection to the right shoulder and that she should continue on restricted duties.
22 In October 2014,[13] Mr Csongvay noted that Ms Sudar had returned to see him, as her right shoulder had started to hurt again. He said she was struggling at work and should remain on restricted duties. He again injected the right shoulder. He noted “Mara has not given a history of any pre-existing shoulder injury prior to her work related incident.”[14] He said the incident could have caused the shoulder injury, together with the congenital situation in her right shoulder.
[13]PCB 70
[14]PCB 73
23 In June 2015, Mr Csongvay noted Ms Sudar was struggling to manage her right shoulder pain and was exercising to strengthen the area.
24 Dr Feletar arranged an MRI scan in February 2014 of the right shoulder.
25 By February 2014, such was the condition of the back and shoulder problems that Ms Sudar was reduced to lighter duties of an administrative nature. She had continued to work three days per week, seven to eight hours per day, up to that point, although only on kitchen duties. In October 2014, she was told there was no further work available, and has not worked since. She had continued her work at Craigcare, one day per week over six or seven hours, as a kitchenhand. She said she found doing both jobs too taxing and stopped the work at Craigcare in April 2013.
26 Ms Sudar has continued under the care of Dr Pjesivac, but no longer sees Mr Csongvay. As a result of the physical pain, she has developed anxiety, and was referred to a psychologist. She has been prescribed a range of pain-relieving medication, including Panadeine Forte, Nurofen and ibuprofen. Presently, she takes one or two Panadeine Forte tablets per day and, also, Nurofen, Panadol Osteo or regular Panadol. She uses Voltaren Gel for her shoulders and back. She undertakes physiotherapy. She consults Dr Feletar once a year or so, but primarily, for the Sjögren’s Syndrome.
27 As to the consequences of injury, Ms Sudar says she has constant aching lower back pain which radiates to her right leg and to the toes. It is difficult for her to sit or stand for too long, and bending and lifting makes the pain worse. She has an aching pain in her right shoulder which makes repetitive movements, or movements above her head, difficult. In particular, domestic tasks such as hanging washing, stirring, scrubbing, vacuuming and mopping are all too painful. Her sleep has suffered, as it is difficult for her to lie on her back or on her right side. She still goes shopping, but only carries light items.
28 Ms Sudar’s husband is a painter. For taxation reasons, she and her husband are in partnership and she receives a distribution of the proceeds of the business. She does occasional small tasks in relation to the business. A table setting out the amount of the distribution was tendered,[15] although she denied that, because of that distribution, she was not motivated to return to work. To the contrary, she said she enjoyed her work and the independence that the salary gave her.
[15]A partnership statement shows Ms Sudar receives a pre-tax distribution of approximately $12,000 in 2012, increasing to $45,000 in 2017
29 Ms Sudar admitted to having travelled overseas on three occasions and that she and her husband had purchased an investment property. Her grandchildren were older, but she was not able to involve herself in their activities as much as she would like.
30 Ms Sudar said she is now incapable of work, as a result either of the right shoulder problem, or her back problem. She has not obtained any employment since October 2014, nor made any enquiries about available work. She said she did not think she could undertake any work.
31 Her complaints of pain and limitation, including as to domestic tasks, were supported by an affidavit of her husband.
32 Ms Sudar last saw Mr Csongvay in December 2015. He suggested a repeat MRI scan of the right shoulder, but she has not had that done. She continues to see Dr Pjesivac regularly. She said she reads less now than she did before because of difficulties with sitting for any length of time.
Medical opinions
33 From about April 2007, Ms Sudar regularly attended Dr Feletar. Initially, Dr Feletar noted Ms Sudar was taking Mobic for her back pain and her greatest complaint was pain in her low cervical and upper thoracic spine. Later in 2007, Dr Feletar reported Ms Sudar had a passive approach to her spinal problems and that she should take anti-inflammatory medication. Dr Feletar further referred her to a physiotherapist. By 2008, Dr Feletar reported Ms Sudar’s thoracic back was causing her a lot of stiffness in the mornings, and x‑rays showed some degenerative problems in her spine.
34 In 2009, Ms Sudar attended Dr Feletar and reported pain in her right upper arm. Dr Feletar examined the pain and reported that she thought it was mild rotator cuff tendonitis, mechanical neck pain with a good range of neck movement.
35 On 4 January 2011, Dr Feletar reported that the right shoulder pain was still significant for Ms Sudar and was “an intermittent troublesome problem”.[16] Dr Feletar also noted that Ms Sudar had “clicking and crepitus arising from the right acromioclavicular joint and some mild impingement. She feels her pain posteriorly.”[17]
[16]PCB 37
[17]PCB 37
36 In July 2011, Dr Feletar continued to report that Ms Sudar’s complaints were of mechanical and right shoulder pain. She reported that ultrasound and x‑rays had produced normal results, with the exception of some mid-cervical degenerative disease. One month before the incident, Ms Sudar saw Dr Feletar again on 21 March 2012. Dr Feletar reported that Ms Sudar was still suffering from mechanical neck and shoulder pain.
37 Following the incident, Ms Sudar continued to report problems of right shoulder rotator cuff disease to Dr Feletar in 2013.
38 On 7 February 2014, Dr Feletar noted that Ms Sudar’s right shoulder rotator cuff disease was a problem and was degenerative, with symptoms exacerbated by work activity. Dr Feletar reviewed Ms Sudar following an MRI scan of the right shoulder on 25 February 2014 and found that she had “some subscapularis tendinosis and infraspinatus and down slopping (sic) of the acromion”.[18]
[18]PCB 47
39 Dr Feletar, in her report of 17 March 2015, said Ms Sudar’s problems were bilateral shoulder rotator cuff disease, cervical thoracic spine degenerative disease, and lumbar spine degenerative disease. She found the symptoms related to the problems would have been exacerbated by Ms Sudar’s work duties. She concluded:
“They [degenerative constitutional changes] are pre-existing and constitutional in nature, found in the general population of this age. I don’t believe her work will have accelerated the course of these conditions.”[19]
[19]PCB 48
40 Mr George Kokovas, physiotherapist, saw Ms Sudar on 18 June 2012. He noted Ms Sudar had “chronic” lower back pain. It is not clear from his note[20] whether the pain arose before the fall, but his use of the word “chronic” would suggest it did. In February 2014, after four sessions of treatment, Mr Kokovas reported some improvement in the management of Ms Sudar’s condition, but noted her symptoms still persisted. Mr Kokovas saw Ms Sudar a further four times in 2015 and 2016 and again noted that the treatment was helpful, but symptoms still persisted.
[20]PCB 53
41 Dr Peter Pjesivac also treated Ms Sudar from 2007. He reported that she first presented with lower back symptoms in June 2012 following the incident. He reported that she did not fall but strained her lower back when she slipped on the wet floor and hit her right arm on the door handle and strained her left arm hanging onto the door frame. He said she immediately developed lower back pain after the incident which worsened.[21] He said the ongoing pain was intermittent, assessed at 2 to 3 out of 10, with frequent exacerbations provoked by prolonging sitting, standing, bending and lifting. He also said that since the incident, she had suffered bilateral shoulder pain, which was worse on her right side.
[21]PCB 62
42 Dr Pjesivac reported that the pain in Ms Sudar’s right shoulder radiated into the upper arm, which he believed was consistent with rotator cuff tendinitis and subacromial bursitis.[22] He referred Ms Sudar to orthopaedic surgeon, Mr Csongvay, and to physiotherapist, Mr Tony Davis, who started her on a progressive strengthening program in February 2015. Another physiotherapist, Ms Melissa Barker, treated Ms Sudar for three sessions prior to 9 June 2015.[23]
[22]PCB 62
[23]PCB 76-77
43 In a supplementary report of 14 July 2017, Dr Pjesivac found Ms Sudar’s low back and right shoulder injuries, and her left shoulder pain, related to the incident, although appeared to rely on her history, as he did not treat her for either problem for a considerable period after it. He noted that if her right shoulder injury was considered alone, that she had a theoretical capacity for part-time work, three days a week, five hours a day, with restrictions not to lift above shoulder height and not to perform any repetitive movements with her shoulders. He further noted that if her low-back injury was considered alone, she had a theoretical capacity for part-time work, three days per week, eight hours a day, with restrictions of no repetitive bending or lifting more than 5 kilograms and no prolonged sitting and standing for more than 30 minutes. Dr Pjesivac also noted Ms Sudar’s basic English skills and limited education and experience as obstacles that would prevent her from finding employment.
44 Mr Steve Csongvay, orthopaedic surgeon, reported Ms Sudar suffered from bilateral shoulder pain after injuring herself at work on 9 May 2012. He noted an MRI scan performed on 15 February 2014 confirmed right rotator cuff tendinitis with a partial thickness tear of infraspinatus, subscapularis, tendinosis, and subacromial impingement with a down sloping acromion and subacromial bursitis.[24]
[24]PCB 71
45 On 22 May 2014, Mr Csongvay reported that Ms Sudar had bilateral rotator cuff tendinitis and subacromial bursitis. He reported a good response to a cortisone injection into the right subacromial space in late 2013 and recommended it be repeated. He saw Ms Sudar again on 30 October 2014, as her right shoulder pain had returned. He injected the shoulder subacromial space with Depo-Medrol and Xylocaine.
46 On 26 February 2015, Mr Csongvay said Ms Sudar was not well enough to return to normal duties due to her ongoing shoulder symptoms.[25] He found that the condition related to her employment, as she had not provided him with a history of any pre-existing shoulder injuries prior to the incident. He also reported:
“The down sloping shape of her acromion is a recognized anatomical variant that is associated with a higher rate of subacromial impingement and thus is more likely to lead to rotator cuff injury in a traumatic situation.”[26]
[25]PCB 72
[26]PCB 73
47 Among the radiological reports tendered into evidence, Ms Sudar had an x-ray taken on 14 March 2008 which showed minor spondylitic lipping in the mid and lower thoracic spine.[27] On 3 May 2011, an x-ray revealed degenerative changes at C4-5 and C5-6, with the facets appearing relatively well preserved.[28] A further shoulder x-ray was carried out on the same day, but failed to produce any abnormal results.[29]
[27]PCB 82
[28]PCB 83
[29]PCB 85-86
48 On 13 June 2012, Ms Sudar underwent a CT scan of her lumbar spine. The CT scan revealed minor lumbar disc degeneration with disc bulges at several levels but no evidence of neural compression.[30]
[30]PCB 87
49 On 30 November 2013, Ms Sudar underwent an ultrasound of her right shoulder. This revealed no evidence of rotator cuff tear calcification and mild to moderate subacromial bursitis.[31]
[31]PCB 88
50 A further x-ray of Ms Sudar’s cervical and thoracic spine was carried out on 29 January 2014. The images demonstrated normal alignment, with minor intervertebral disc degeneration in the mid thoracic spine with minor marginal osteophytic lipping.[32] On the same day, a left shoulder ultrasound and x-ray was carried out. The ultrasound produced no evidence of effusion within the glenohumeral joint or subdeltoid bursa and the x-ray produced results within normal limits.[33]
[32]PCB 89
[33]PCB 91
51 Finally, an MRI scan was carried out on Ms Sudar’s right shoulder on 15 February 2014. The conclusions of the examination were:
“1 Infraspinatus insertional tendinosis with small under surface partial thickness tear. Degenerative change of the posterosuperior labrum. Features raise the possibility of internal impingement.
2 Subscapularis tendinosis with downsloping acromion suggestive of outlet impingement.
3 Mild subacromial bursitis.”[34]
[34]PCB 92
52 Dr Robyn Horsley, occupational therapist, examined Ms Sudar on 11 June 2015. She found that the accident was a significant contributory factor in Ms Sudar’s injuries, compounded by the degenerative changes in her right shoulder and a congenital down sloping acromion which predisposed Ms Sudar to impingement. She said Ms Sudar had a mechanical back pain with no major radiological features. She said Ms Sudar had developed a Chronic Pain Syndrome.[35]
[35]PCB 107
53 Dr Horsley said Ms Sudar’s right shoulder injury would cause the following work restrictions:
·No repetitive over reaching, pushing or pulling
·Work between shoulder and waist height
·No lifting of items greater than 8 to 10 kilograms except occasionally
·No repetitive lifting of items weighing 5 to 8 kilograms
·No working in awkward or confined spaces; and
·No working in prolonged static postures involving bilateral shoulders.
54 Dr Horsley stated Ms Sudar’s lumbar spine required further additional restrictions:
·No repetitive bending, lifting or truncal rotation
·Avoiding static forward flexion involving the lumbar spine
·Good manual handling technique, even for light items; and
·Avoid lifting items in awkward and confined spaces.
55 Dr Horsley said Ms Sudar could not return to her previous role of cleaner/kitchenhand. She believed she was fit to work three days per week, five to seven hours per day, within the restrictions she outlined.[36]
[36]PCB 108
56 Mr Michael Shannon, orthopaedic surgeon, examined Ms Sudar on 17 August 2015. He diagnosed her with subacromial bursitis in both shoulders, and mechanical back pain associated with degenerative change.[37] He found there was clinical evidence of restriction of movement and impingement in both Ms Sudar’s shoulders, consistent with mild bursitis, and a restriction of movement in her back with dysmetria and spasm. He found no evidence of radiculopathy.[38] Mr Shannon thought that Ms Sudar’s left shoulder condition, while quite mild, was made worse by protecting her right shoulder. He noted that Ms Sudar said she may have strained her shoulder when she grabbed the door frame in the process of her original injury. He thought, regardless, the left shoulder condition was work related and while Ms Sudar may have had some vague symptoms in her shoulders prior to the work injury,[39] there was no reliable basis for apportionment.[40]
[37]PCB 127
[38]PCB 128
[39]Mr Shannon did not receive a history of Dr Feletar’s earlier treatment
[40]PCB 130
57 Mr Thomas Kossman, orthopaedic surgeon, assessed Ms Sudar on 17 July 2017. He found she suffered the following injuries from the incident:
“1. Aggravation of lumbar of multi-level disc bulges;
2. Infraspinatus insertional tendonosis with a small under-surface partial thickness tear, degenerative changes of the posterior labrum, possible internal impingement, subscapularis tendonosis and mild subacromial bursitis right shoulder joint;
3. Pain and movement restriction left shoulder joint.”[41]
[41]PCB 153
58 Mr Kossman regarded Ms Sudar’s prognosis in relation to her lumbar spine and in relation to her bilateral shoulder condition as poor. He found Ms Sudar had no work capacity and this was a result of the injuries which she suffered in the work-related accident on 9 May 2012. Mr Kossman said Ms Sudar was not able to walk long distances, walk on uneven grounds, up or down stairs, on inclines or declines, kneel, squat or carry items weighing more than 5 kilograms.[42]
[42]PCB 155
59 Mr Clive Jones, orthopaedic surgeon, examined Ms Sudar on 28 August 2014. At that time, she reported pain in her right shoulder that had somewhat subsided, and chronic low-back pain, without sciatica, and morning back stiffness. Mr Jones was of the view that Ms Sudar had clinical and radiological evidence of minor right shoulder bursitis. However, he thought her back pain was degenerative and not related to the incident in any way.[43] He thought Ms Sudar was capable of part-time work in cleaning activities. He noted that repeated use of the right arm above shoulder level should be avoided.[44]
[43]DCB 3
[44]DCB 4
60 Dr Jones re-examined Ms Sudar on 23 March 2017. He noted her complaints had not changed significantly since 2014. He was of the opinion that her condition had not undergone any substantial change. Mr Jones reported that the injury to Ms Sudar’s lower back appeared to be by way of aggravation to pre-existing degenerative change. He said it may have been possible that the fall against the door frame may have caused a minor and partial disruption of the shoulder rotator cuff.[45] He maintained that her condition did not have a material relationship with the incident that occurred in 2012 but noted Ms Sudar was probably unsuited to full time work as a cleaner.[46] Mr Jones reported that Ms Sudar was likely to continue to complain of back and right shoulder discomfort, with further medical treatment unlikely to be rewarding. He noted that the treatment Ms Sudar was undergoing was not particularly burdensome, being monthly physiotherapy attendances, a home exercise program and taking medication such as Panadeine Forte and Nurofen.[47]
[45]DCB 9
[46]DCB 9
[47]DCB 9
Credibility of the Plaintiff
61 Ms Sudar was not a particularly satisfactory witness. In the course of her evidence, she intentionally downplayed the nature and extent of her right shoulder problems prior to her fall. At one point she insisted that the shoulder problems that she had were to a different area of the right limb and restricted her in different ways. She sought to downplay the fact that her right shoulder problems before the fall caused her to take medication, including Feldene and Somac. She was regularly unresponsive when pressed about the nature and extent of her pre-existing problems. Realistically, she had five years of right shoulder problems, on and off, before the work incident.
62 Even accepting she had difficulties with language, she sought actively to maximise the claim of pain and restriction as a result of the fall. Of significance is that she gave an incorrect history to many practitioners. She did not describe any pre-existing shoulder problems to Mr Csongvay.[48] To Mr Shannon, she said she had “occasional soreness in her right shoulder at work”.[49] There was no history to Mr Jones of any pre-existing problems.
[48]PCB 73
[49]PCB 126
63 She did not answer questions responsively as I would expect of an honest witness. Despite the views of her general practitioner and other doctors that she has at least some work capacity for part-time lighter duties (although said to be more theoretical than practical), she has made no attempt to locate any form of work. Her description of the back injury as being accompanied by a cracking sound, is an exaggeration.
64 All in all, I have reservations about Ms Sudar’s credibility. Those reservations do not cause me to reject her evidence completely, but it does cause me to have reservations of the opinions of those practitioners who did not have a complete history of pre-existing problems.
Submissions
65 In closing submissions for the defendant, Mr Clements said Ms Sudar had suffered significant problems in her right shoulder for five years prior to the incident. He relied on reports of Dr Feletar, and noted that Ms Sudar’s right shoulder pain was far more significant than she described in her evidence and suggested this to either be an issue with her memory or that she was making more of the incident than was really the case. In any event, Mr Clements submitted that the reports of Dr Feletar noted significant right shoulder problems and that these reports were more reliable than the plaintiff’s evidence and memory.
66 Mr Clements submitted that Ms Sudar did not suffer injury to her right shoulder in the workplace incident. There was no mention of the injury in the incident report or in her subsequent visits to her general practitioner. He noted reports of Dr Feletar where she attributed Ms Sudar’s right shoulder pain to degenerative problems and not to the incident. He said Mr Csongvay’s opinion as to Ms Sudar’s right shoulder, was not reliable, as he was not made aware of any pre-existing shoulder injuries. Irrespective, Mr Clements submitted that should he be mistaken and the right shoulder was impacted by the incident, it was an aggravation, rather than a new injury, and the onus was upon the plaintiff to prove the extent of the aggravation-produced pain and suffering that met the threshold. Mr Clements submitted Ms Sudar’s right shoulder pain did not meet that threshold.
67 In relation to the left shoulder, Mr Clements noted that Ms Sudar had made little to no mention of problems to her left shoulder during her evidence. He said she had received little treatment to her left shoulder, except for a scan. He said that if both shoulders were injured, Ms Sudar could aggregate the two injuries; however, there was such a paucity of pain and restriction in the left shoulder that there was nothing to aggregate.
68 Mr Clements submitted that Ms Sudar’s problems with her lower back were purely related to her age and an underlying degeneration condition, largely unrelated to the incident. He accepted that Ms Sudar would have suffered some jarring at the time. However, her description that she heard a cracking noise was dramatic and unrealistic. There was no evidence of a fracture of the vertebra and only mild degenerative changes were depicted in a scan taken five weeks after the incident. He said that while Ms Sudar may not be able to work as a cleaner because of the combined effect of her lower back pain and shoulder pain, this was not caused by the incident. He said Ms Sudar had the capacity for light work and had not proved there was no suitable employment she could undertake. The burden of proof was on Ms Sudar as set forth in s134AB(38)(g) of the Act. There was no vocational report as to the sorts of areas of employment for which Ms Sudar had the capacity
69 Ms Forbes submitted Ms Sudar loved her jobs and the independence they gave her, and would still be working if she could. She noted that while Ms Sudar did have pre-existing right shoulder pain prior to the incident, she was still able to work. She submitted that Ms Sudar’s medications increased and her left shoulder pain increased, as she used it more frequently to compensate for her right shoulder. Ms Forbes said that Ms Sudar’s low-back pain had been a problem since the time of the incident. She said it prevented her from continuing with cleaning work at the time. She noted that radiology showed bulging and, as detailed in the report of Dr Horsley, Ms Sudar could no longer work in manual jobs that required her to bend or lift.
70 Ms Forbes said further, Ms Sudar had only been employed in cleaning and kitchen jobs in Australia. She said her limited English skills, lack of prior experience and her age meant she was not suited to any other work. She submitted Ms Sudar’s capacity was something in the order of 15 hours per week (five hours per day on light duties, three days a week), about half what she was able to undertake before the incident.
Analysis
71 I am not satisfied that the left and right shoulder pain and restriction of which Ms Sudar complains is related to the incident of May 2012. It is clear from the reports of Dr Feletar that Ms Sudar had not insignificant problems with her right shoulder over about five years prior to the fall. Those problems would appear intermittent in nature, but nonetheless required regular treatment with medication, radiological examination and physiotherapy. In July 2011, most of her complaints were related to the right shoulder. She was complaining to Dr Feletar a month or so before the fall. Few of the doctors she has seen since have received a complete history.
72 Further, there was no mention to Dr Pjesivac, according to his clinical notes, of any right shoulder injury when she saw him a short time after the fall. In fact the shoulder was not mentioned until more than a year later. His conclusion that bilateral shoulder pain was related to the incident is presumably based upon the history she provided to him.
73 Further, there was no reference to a shoulder injury in the Incident Report Form.[50] It is difficult to understand how such an injury could have occurred as Ms Sudar suggests and then for it not to be mentioned either to the general practitioner for a lengthy time, or to Dr Feletar, to whom no mention of the incident was apparently made until a later time.
[50]PCB 157
74 I accept the opinion of Dr Feletar that Ms Sudar currently suffers from rotator cuff disease to the right shoulder and that that affects her capacity to undertake work, particularly relating to cleaning or work as a kitchenhand. There is support for that in the more recent radiology. However, I am of the view that this is degenerative and constitutional in nature. In that regard, I accept her opinion, and that of the defendant’s practitioner, Mr Jones. To the extent she has problems in her left shoulder, probably caused by protecting the right, these are also unrelated to the falling incident. I do not accept the opinions of Dr Horsley nor Mr Kossman as to the link between the incident and the shoulder problems. They rely on the accuracy of the history provided by her.
75 In relation to Ms Sudar’s lumbar spine, again, I accept the opinion of Dr Feletar that her lumbar spine is a degenerative, constitutional problem, and that it was probably exacerbated by her fall. Dr Feletar did not “believe her work will have accelerated the course of these conditions”.[51]
[51]PCB 48
76 I further accept the opinion of Mr Jones, that Ms Sudar’s lower back condition is constitutional. The radiology would suggest only mild degenerative changes. While Ms Sudar did complain to Dr Pjesivac in June 2012 of low-back pain, there were no further complaints, according to his clinical notes, until late 2013, or early 2014. Throughout this time, she remained working, albeit not undertaking cleaning duties, and working about the same hours.
77 Ms Sudar did not file a WorkCover injury claim until February 2014 when her work tasks were reduced to administrative duties. Even accepting with her modest education and background, it is difficult to understand why a claim was not made earlier, given she says she was suffering significant pain, both in the shoulder and the lower back. I accept Ms Sudar did suffer some form of injury to her lower back in the May 2012 incident, but the consequences of that were relatively short-lived given she was able to maintain her employment for a period, and sought little in the way of treatment. I accept that at the present time, Ms Sudar does have degenerative lower back pain but that it is constitutional in nature, and the effects of the incident are long since passed. Given my findings as to her credibility, I do not accept her evidence that she suffered low-back pain from the time of the incident on an ongoing basis, nor that it has restricted her, as she would suggest. I accept that at the present time, she has a reduced work capacity, something in the order of five hours per day, three days per week, in accordance with the opinions of Dr Pjesivac and Dr Horsley, but that restriction is constitutional and not work related.
78 In my view, the consequences of the lower back injury related to the slipping incident were modest, short-lived and do not meet the statutory criteria.
79 In these circumstances, the application for leave should be rejected.
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