Sutton, Richard v Laminex Group Pty Ltd
[2009] VCC 1140
•11 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-03913
| RICHARD SUTTON | Plaintiff |
| V | |
| LAMINEX GROUP PTY LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 May 2009 |
| DATE OF JUDGMENT: | 11 September 2009 |
| CASE MAY BE CITED AS: | Sutton, Richard v Laminex Group Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1140 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury to spine – serious injury to right upper limb – pain and suffering – aggravation of asymptomatic spinal degeneration
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC | Melbourne Injury Lawyers |
| Mr A Ingram | Pty Ltd | |
| For the Defendant | Mr J Carmody | Minter Ellison |
| Ms C Boyle | ||
| HER HONOUR: |
Introduction
1 The plaintiff is 52 years of age. Since 2006 he has been engaged by the defendant in full-time employment, in a management job as a freight co- ordinator.
2 In his application made under s.134AB of the Accident Compensation Act 1985 (“the Act”), the plaintiff seeks leave to bring proceedings for the recovery of damages for two injuries. The first injury is aggravation of asymptomatic, pre-existing degeneration of the C5/6 to T2/3 levels of his back and, independent of any referred pain from this injury the second injury on which he relies is to his right upper limb. Referring to some of the medical reports, in his opening senior counsel described the injury to the plaintiff’s right upper limb as comprising injury to his “right trapezius muscle, some rotator cuff
impingement, some brachial plexus neuralgia, rotator cuff tendonitis, some bursitis, some injury to the AC joint which resulted in that adhesive capsulitis
and wasting of the shoulder itself (sic)”.
3 Both injuries allegedly arose out of one incident in the course of the plaintiff’s employment as a forklift driver on or about 13 February 2001, when the plaintiff said that he was attempting to connect a trolley to a forklift.
4 The application is made under paragraph (a) of the definition of “serious injury”, that is, serious permanent impairment or loss of function of the neck and of the right upper limb. As I have already mentioned, the plaintiff alleges impairment, arising out of one incident, to separate body functions. At hearing it was accepted that any injury-related impairment of the separate body functions to which he referred cannot be aggregated to establish serious injury (see Humphries v Poljak [1992] 2 VR 129 at page 138 and To Ha Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65).
5 The application is for leave with respect to pain and suffering damages only. To succeed the plaintiff must prove compensable injury, and that the pain and suffering consequence of each or both injury-related impairments, when judged by comparison with other cases in the range of possible impairment of his spine and of his right upper limb, are more than “significant” or “marked” and at least “very considerable”.
6 The decisions of Courts of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak & Ors (2005) 14 VR 622, [2005] VSCA 33 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, [2006] VSCA 172 explain the correct approach to the statutory formulation for determining an application for leave to commence proceedings for damages. In summary, the plaintiff must establish:
(a)
a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) the nature of the injury; (c)
the consequences at the date of hearing, in this case confined to pain and suffering, to which each compensable injury materially contributes; and
(d)
that the impairment of each body function is permanent in the sense that it is likely to last for the foreseeable future and its pain and suffering consequence meets the “very considerable” test. (Barwon Spinners paragraph 34)
The areas of dispute
7 In this application the plaintiff relies on the acceptance by the defendant of his claim for compensation made on 22 February 2001 citing injury to both his right shoulder and neck. However, at hearing, whilst conceding compensable injury to both the plaintiff’s neck and right shoulder, the defendant submitted that any ongoing pain and suffering consequence emanated from impairment of the function of his right shoulder, which, when judged by comparison with other cases in the range of possible impairments or losses of body function, does not meet the requirements of sub-s.134AB(38)(c).
8 This was not an application in which the plaintiff’s credit was directly challenged, although as my discussion of the evidence reveals, I formed the view that in his evidence the plaintiff tended to minimise the level of his post- injury activity and overstated the claimed level of his injury-related pain.
The evidence called and tendered
9 The plaintiff deposed to the accuracy of his four affidavits sworn 16 May 2007, 15 January 2008, 17 September 2008, and 22 April 2009 respectively. He gave limited evidence and he was cross-examined.
10 The material tendered by the plaintiff from his Court Book (Exhibit “P1”) consisted of:
(a)
five radiology reports dated 14 May 2001, 22 June 2001, 18 September 2001, 2 October 2001 (with a follow-up letter dated 16 October 2001), and 12 February 2008;
(b)
a nerve conduction study report dated 19 February 2008, of Dr Victor M Gordon;
(c)
reports of treating practitioners, musculoskeletal physicians Drs Robert Brzozek (11 May 2004) and David Vivian (19 May 2004), general practitioner Dr John Wiseman (24 May 2004 and 29 Jun 2008), orthopaedic specialist Mr Hugh Weaver (29 April 2006), consultant neurologist and clinical neurophysiologist, Dr Henryk Kranz (10 May 2004), musculoskeletal and sports physician Dr Peter A Larkins (17 June 2004), orthopaedic surgeon and specialist in hand and upper limb injury, Mr Greg Hoy (14 June 2001), and physiotherapists Sheree Freedman (4 undated reports) and Luke Goodwin (29 May 2005).; and
(d)
medico-legal report of orthopaedic surgeon, Mr M A Khan (19 August 2008).
11 From his Supplementary Court Book (Exhibit “P2”) the plaintiff also tendered material consisting of:
(a) an unchallenged affidavit of his partner, Pelita Gayle Papas (sworn 22 April 2009) whose evidence generally corroborated reports by the plaintiff of pain in the region of his right shoulder and neck and ongoing restrictions in his social, recreational and work activities. This affidavit included her observation that over a number of years the plaintiff’s condition had not improved and, based presumably on the plaintiff’s complaints of pain and her belief that he was in pain, she was of the view that the plaintiff’s level of pain had increased; and (b) further medical reports of Mr M A Khan (17 March 2009), Dr John Wiseman (12 March 2009, with a radiological report of 9 March 2004), Mr Hugh Weaver (18 March 2009), consultant neurologist, Dr Timothy Day (26 March 2009), and Sheree Freedman (2 April 2009). 12 Three documents were tendered by the plaintiff from the Defendant’s Court Book as Exhibit “P3”:
(a) a “Worker’s Claim Form” dated 22 February 2001; (b) a report of Mr Hugh Weaver (3 September 2007); and (c) a medical assessment by occupational physician, Dr Mary Wyatt (30 August 2007). The report and medical assessment were also relied on by the defendant.
13 The defendant tendered, from its Court Book (Exhibit “D1”):
(a) a “Worker’s Claim for Impairment Benefits Form” (dated 14 December 2006); (b) a “Worker’s Claim for Compensation Form” (2 May 2006); (c) a “Employer Claim Report” form (28 February 2001); and (d) an impairment assessment report from Mr Peter Battlay, general surgeon (28 February 2007). 14 From attachments to the letter of Dr John Wiseman (12 March 2009) in the Plaintiff’s Supplementary Court Book, the defendant tendered (Exhibit “D2”):
(a) a radiological report (3 April 2001); (b) a report of Dr Timothy J Day (5 March 2009); and (c) nerve conduction study reports by Dr Owen B White (11 September 2001) and Dr Victor M Gordon (19 February 2008). The latter report is a duplicate of that tendered by the plaintiff, as part of Exhibit “P1”. 15 At hearing the defendant formally admitted that it had obtained surveillance video of the plaintiff, brought into existence for the dominant purpose of use in this litigation. In deciding this application I have inferred, from the defendant’s failure to rely on this, that if shown the film would not have assisted the defendant in either damaging the plaintiff’s credit or contradicting his evidence about his physical activities and limitations.
The plaintiff’s background
16 This information was principally obtained from the plaintiff’s detailed first affidavit, updated by subsequent affidavits. In these reasons for judgment I have necessarily summarised this evidence.
17 The plaintiff lives in a de facto relationship and has three adult children from a previous marriage.
18 According to the plaintiff’s first affidavit he was schooled to Form 3 level at Fawkner Technical School and in the nine years subsequent to leaving school he variously worked as an apprentice cutter and pattern maker, as a cutter, as a storeman, and as a labourer stacking roof tiles.
19 After sustaining a work-related back injury the plaintiff said that he convalesced for 12 months and in the next eight and a half years he worked in various jobs, the longest as a storeman and forklift driver over a seven year period to 1990. This employment apparently ended after the plaintiff suffered what he called a tendon injury to his right arm during the course of his employment. After this injury settled the plaintiff returned to similar employment before training as a Juvenile Corrections Officer.
20 From 1991 the plaintiff was employed by the Broadmeadows College of TAFE, which involved the training of prisoners. Following investigation of a contraband drugs complaint, the plaintiff said that he ceased working at Pentridge Prison and did not pursue a stress claim made by him as a consequence of the investigation.
21 Nevertheless, this event appears to have prompted the plaintiff to resume work as a forklift assessor and driver, work he performed through a labour hire agency between 1994 and 1999. According to the plaintiff, during this period of employment he spent some 18 months working for one of the defendant’s predecessors, and from July 1999, commenced employment with another of the defendant’s predecessors performing the same duties. In his first affidavit the plaintiff described these duties as “constant repetitive heavy jarring work manoeuvring trolleys in order to hook them onto forklifts.”.
The circumstances of the injury and the treatment received since February
2001
22 In paragraphs 9 and 10 of his first affidavit the plaintiff described the circumstances giving rise to his injury in the following words:
“9. … my difficulties really began on 13th February, 2001 when I reversed up to a trolley in my forklift but found that I was about 30cms short of the point at which the trolley was to be connected. There were a number of reasons for this. The forklifts lacked reversing mirrors which would have assisted us to guide the vehicle in reverse, although mirrors were later introduced onto these vehicles. A further difficulty was that there was meant to be another employee assisting me for directions, but on this occasion there was no such assistance provided. Having pulled up about 30cms short I then had to connect the trolley to the forklift. This was an activity which I had undertaken many times before, although on this occasion I did not realise the tremendous dead weight which I would have to shift and get into motion before the connection could be made. There were no jockey wheels provided on the trolley to assist in this regard and further, the trolleys were known to be poorly maintained and difficult to move by hand and a number of complaints had been made in the past as to such matters. 10. As I was attempting to connect the trolley to the forklift and even though it was a short distance the tremendous strain imposed on my body meant that I suffered pain in my neck and right shoulder. I can recall a burning sensation on the right side of my face and the top of my neck and also some unusual features in my right arm including a pins and needles sensation and a hot flush sensation.” (sic)
23 According to the plaintiff, despite the symptoms described by him (which he said increased in severity that evening), he continued working and first sought treatment the next day from his general practitioner, Dr Wiseman.
24 Dr Wiseman at first diagnosed a significant musculoligamentous tear of the right trapezius muscle for the treatment of which he prescribed medication and referred the plaintiff to physiotherapist, Mr Goodwin, who, in his report, said that he treated the plaintiff from 19 February until 10 April 2001. However, I note from his affidavit material that until December 2006 the plaintiff sought regular treatment from this physiotherapist which he says assisted him in coping with his ongoing symptoms.
25 Initially Mr Goodwin diagnosed a strain of the plaintiff’s “upper trapezius muscle, with possible neural involvement from the cervical spine”. However, after receiving the results of an ultrasound examination of the plaintiff’s right shoulder, performed on 3 April 2001, the physiotherapist accepted that, other than some indication of “impingement” of the rotator cuff, there was no radiological evidence of a muscle tear.
26 As the defendant correctly submitted, this very early result requires consideration along with the x-ray/ultrasound result reported to Dr Wiseman on 9 March 2004 where “mild subacromial/subdeltoid bursitis” was noted and the rotator cuff tendon was described as “Normal”. These results indicate organic causes for the plaintiff’s long-standing complaints of right upper limb pain and restriction, although, so the defendant submitted, the pathology revealed is not such that it is likely to impair the right upper limb and produce pain and suffering consequences to the level mandated by the statute. Nevertheless, as my reasons for judgment set out below show, in determining this application I have focused on the likely physical consequences of injury- related impairment, not simply the extent of the pathology revealed through both investigation and clinical examinations.
27 When in 2001 a steroid injection also failed to resolve the plaintiff’s right shoulder symptoms, he was referred to musculoskeletal and sports physician, Dr Larkins, who treated him between 17 April and June 2001.
28 As this doctor’s report submitted to the plaintiff’s solicitors in June 2003 revealed, Dr Larkins:
(a) took a history of – “…painful abduction with a noticeable ‘clunk’ in the shoulder. His pain was in the superior shoulder, scapula, right cervical and triceps region of the upper arm. He stated that he was unable to drive a forklift due to the inability to turn to look over his shoulder as a result of neck discomfort. He said he could also not elevate his arm to reach forward or behind his back.
He complained of disturbed sleep due to aching in the shoulder blade and upper arm region and felt that there had been some occasional catching with the arm movements overnight. He was otherwise in good general health and on no regular medication and had no allergies,”;
(b) noted two injury-related absences from work for periods of three weeks separated by a return to light duties; (c) found – “… some minor wasting of the shoulder musculature with general irritability of range of motion of the right glenohumeral joint. He had a limit to abduction of 140º and flexion 100º. There was full range of motion present for rotation.”, and
“… some mild subacromial impingement signs producing some upper arm pain but his shoulder was clinically stable. He had mildly reduced strength.”;
(d) performed subacromial infiltration and hydrodilation of the right shoulder procedures, neither of which provided lasting relief; (e) initially felt that the plaintiff had – “… a mixture of cervical spine/neurologically generated pain together with some mild shoulder joint irritation. Despite several interventions to the shoulder joint region his pain did not alter and this led me to believe that his primary pathology was from the spinal region.”; and
(f) referred the plaintiff to a specialist in “upper limb problems”, orthopaedic surgeon, Mr Hoy. 29 Accordingly, after mid-2001, whilst the plaintiff’s right upper limb remained symptomatic, the focus of the investigation and treatment of his ongoing symptoms shifted to his spine.
30 Mr Hoy’s report to Dr Larkins dated 14 June 2001 pre-dates the results of an MRI scan he ordered of the plaintiff’s cervical spine and brachial plexus. Nevertheless, having examined the plaintiff he reported:
(a) finding – “… full flexion of the shoulder with normal abduction until the scapula part of the abduction which appears to lack the normal scapula rhythm. His biceps tests and other supraspinatus resistance tests are all normal, although he does have some irritation at the AC joint which I think is a secondary phenomenon.
Testing his cervical spine demonstrates some decrease in motion and I think that he does have a primary cervical pathology which may be a muscular injury from the lateral cervical spine”; and
(b) his conclusion that there was no – “… obvious evidence of a primary shoulder pathology”, rather there was “a primary cervical pathology which may be a muscular injury from the lateral cervical spine”.
31 Due to its proximity in time to the episode of injury, the defendant urged that some weight be given to this treating surgeon’s opinion presumably because it tended to minimise the role of any right upper limb pathology and assumed that a muscular injury from the lateral cervical spine was responsible for the plaintiff’s symptoms. Whether or not the results of the MRI scan reporting, as it later did, that there was “degeneration of the C5/6 and C6/7 intervertebral discs and small central disc bulges but no nerve root impingement” would have altered Mr Hoy’s diagnosis remains a moot point because some of the doctors who have treated and assessed the plaintiff more recently also favour muscular or soft tissue injury as the cause of the plaintiff’s reported symptoms.
32 In any event, I note that a further MRI scan of the plaintiff’s cervical and upper thoracic spine on 12 February 2008 ordered by Dr Wiseman reported a similar result, that is, “minor disc bulges at the lower cervical and upper thoracic spine. No nerve root impingement is seen”. Moreover, if the reports of consultant neurologist, Mr Day, and orthopaedic surgeon, Mr Weaver (on which I comment more fully shortly), are correct, scans in late 2008 and/or early 2009 similarly reported minor degeneration with Mr Weaver describing it as “very minor intervertebral disc degeneration involving essentially all levels
in the cervico thoracic region from C5-6 to T2-3 inclusive. There was no evidence of any involvement of neural structures. The reporting radiologist
confirmed the overall mild character of these appearances”.
33 In 2001, guided by Mr Hoy’s opinion and notwithstanding the results of the first scan, Dr Larkins appears to have decided that further management of the plaintiff’s condition was best left with a specialist in cervical spine problems. This led to a referral to specialist in pain management, Dr David Vivian, who examined the plaintiff once on 14 August 2001. The only report from Dr Vivian tendered by the plaintiff is his report to the plaintiff’s solicitors dated 19 May 2004. Unfortunately, this report omits any detailed explanation of active treatment (if any) administered by this doctor although, whilst not excluding the plaintiff’s right shoulder, Dr Vivian did consider that the plaintiff:
“…sustained an injury or injuries at work in the incident he described. It may be that a considerable amount of pain derived from the neck, and it may also be that Dr. Brzozek did investigate these structures at a later stage. There was also a possibility that he had neuropathic pain derived from other structures that I was not able to identify.”
34 However, as we know from his report, musculoskeletal physician, Dr Brzozek, treated the plaintiff between 18 August 2001 and 2 July 2002 on referral from Dr Vivian, in his words “…to organise investigative nerve blocks for Mr Sutton and to follow his progress”.
35 According to Dr Brzozek, when last seen by him the plaintiff’s was:
“… relatively stable and there was unlikely to be surgery as there was not a well-defined lesion that was amenable to surgical correction, therefore pain management was the mainstay of treatment and to that end he was on Paracetamol up to four per day twice a week. He did respond to nerve block injections directed at the upper cervical and mid cervical spine facet joints and so if in the future his pain significantly worsened then radiofrequency denervation (thermal destruction) of those particular nerves might be considered.”
36 This report, tendered at hearing, suggests that the plaintiff’s symptoms were generated by some injury to his cervical spine, although reports of the results of subsequent injection procedures, and a further report from this specialist in which the plaintiff (and his counsel) claimed, Dr Brzozek included a diagnosis of “neuralgic right upper limb pain coming from either the cervical nerve roots or brachial plexus” were not included in the material tendered.
“Motor and sensory nerve conduction studies are normal. Needle right median, ulna or radial sensory neuropathy. There is no convincing evidence of right brachial plexopathy or right cervical radiculopathy. Longstanding (> 6-12 months) radiculopathy may show normal findings on EMG due to compensatory reinnervation, and the sensitivity of EMG for radiculopathy is approximately 75%.”
37 In any event, as to this period of treatment, in his first affidavit the plaintiff reported performing modified duties over reduced working hours as well as taking medication to assist sleep, taking Panadeine Forte and applying Lignocaine Cream for pain, and undergoing physiotherapy as required.
38 In September 2001, at the request of Dr Wiseman, Dr White performed nerve conduction studies on the plaintiff’s right upper limb and reported as follows:
“Conclusion:
Nerve condition studies have been normal in the upper limbs. F waves have been normal.
Concentric bipolar needle EMG recording were performed in the right supraspinatus, infraspinatus and deltoid. Minimal abnormality, with increased insertion of activity, was seen in the supraspinatus only, the studies otherwise being entirely normal.
I would note that he has pain radiating down the arm on elevation of the limb and that he is unable to elevate it fully as it “locks”.
On the basis of the studies today there is no evidence of definite nerve damage to explain his symptoms. It remains possible however that he does have an impingement syndrome, without clear nerve damage, producing his symptoms. Further imaging might be appropriate.”
39 This evidence of minimal abnormality in the supraspinatus region needs to be considered along with the most recent study ordered by Dr Wiseman on 19 February 2008 which excluded the likelihood of ongoing nerve damage, by reporting that:
muscle examination is normal.
40 The plaintiff was next assessed in January 2002 by consultant neurologist and clinical neurophysiologist, Dr Kranz, at which time the plaintiff reported, amongst other things:
(a) recently returning to working two hours per day, two days per week and that he was due to gradually increase these hours; (b) that his symptoms “… had improved considerably and were still improving to some extent …”; (c) some restriction of his right shoulder which was temporarily improved by local injections and physiotherapy; (d) that – “Symptoms more distally in the right arm fluctuated. He had pins and needles affecting all digits, particularly the 2nd through to the 5th. The whole hand on the right side also felt stiff and tight and there was impaired sensation like a ‘glove’ affect up to the elbow. Strength was ? limited. He had difficulty lifting but that may have been more related to pain in the shoulder and neck area particularly as well as the arm. He had no symptoms in the left arm. His general health has been reasonable. He had not noted any difference of colour, temperature or sweating in the hands. ” (sic)
41 In Dr Kranz’s opinion the plaintiff’s:
(a) problems “… appeared predominantly confined to musculo- skeletal involvement at cervical and right shoulder level. There were some symptoms suggesting nerve root irritation but functionally he had good motor and sensory function in the right upper extremity.
The symptoms that he was experiencing on the right side of the face suggested possible involvement of a trigeminal nucleus in the upper part of the cervical cord. There was nothing obvious on the MRI and symptomatically he was improving.”;
(b)
condition “… had stabilised and some further improvement was occurring.”
42 Both the plaintiff and Dr Wiseman report an exacerbation of the plaintiff’s condition in February 2003, such that he resumed physiotherapy and hydrotherapy. However, according to Dr Wiseman, subsequent review from June 2003 indicated to him that the plaintiff’s condition had stabilised with “… residual symptoms and some functional limitations …”.
43 However, having from 2003 resumed his treatment of the plaintiff, the physiotherapist, Mr Goodwin, concluded that the plaintiff’s injury had developed into a:
“… chronic neuro-muscular condition involving his neck, scapular, shoulder and right arm. Treatment continued to focus on the soft tissue of these regions, as well as a home based exercise program to work on stretching, posture and strengthening his right shoulder.”
44 The treatment remained conservative and, apart from further physiotherapy interventions from June 2003 by Mr Goodwin and from October 2007 by physiotherapist, Ms Freedman (which the plaintiff said helped him cope with, but did not resolve, his symptoms), the only other treatment intervention involved a hydrodilation procedure on the plaintiff’s right shoulder performed by Dr Larkins in late 2006.
45 The bundle of reports to Dr Wiseman, including the recent report to the plaintiff’s solicitors from Ms Freedman, evidence ongoing treatment for what she described as injury-related chronic bursitis of the plaintiff’s right shoulder and chronic cervical spondylitis, the latter she said causing neck pain and pain radiating down towards the shoulder and occasionally down the right arm.
46 From the post-injury history reported in his affidavit material (and to doctors), it is clear that the plaintiff underwent a long period of rehabilitation and, notwithstanding a return to modified duties, he suffered recurrent flare-ups, and his capacity to perform manual handling tasks was reduced. This, he said, prompted a successful application in late 2006 for the full-time management position the plaintiff currently holds as a freight co-ordinator. However, whilst evidently coping well with the hours and demands of this alternative employment, the plaintiff explained that he suffers neck and shoulder pain at work if, for example, he spends too much time at the computer, and after work pain often requires him to rest and use painkilling medication.
47 Whilst still on the subject of the treatment, at this juncture it is appropriate to mention the much later reports of orthopaedic surgeon, Mr Weaver, who first assessed the plaintiff in September 2007 on behalf of the defendant’s solicitors, but as the two recent reports reveal he has also advised the plaintiff on treatment.
48 Mr Weaver’s initial report indicates that he was armed with a wide selection of historical reports and radiological material (the latter evidencing the minor degeneration I have already mentioned and elements of subdeltoid bursitis, although as Mr Weaver observed there was no evidence of any dramatic rotator cuff tears) and, subject to his recommendation that these investigations be updated, Mr Weaver diagnosed “… a combination of a mild
but genuine pathology affecting separately [the plaintiff’s] cervical spine and
the rotator cuff of the right shoulder”. Relevantly, when he examined the plaintiff, as did some of the other specialists, Mr Weaver also observed wasting which he described as “… some bilateral wasting of the supraspinatus
and the infraspinatus muscle groups.”
49 As his report shows, Mr Weaver accepted that the pathology identified by him precluded a return to the plaintiff’s pre-injury work and, as reported by the plaintiff, continued to impact on recreational activities, such as gardening and cycling, and on domestic activities, such as mowing the lawn or using particular items in the kitchen such as a scouring pad.
50 Following a further assessment, Mr Weaver’s April 2008 report (addressed to Dr Wiseman) essentially reiterated his earlier findings, although it is not clear from this or his next report in 2009 whether, in addition to the most recent MRI result, Mr Weaver also had the benefit of the results of the nerve conduction study performed in February 2008.
51 In early 2008 Dr Wiseman also referred the plaintiff to consultant neurologist, Mr Day, “regarding (the plaintiff’s) right shoulder problems”. By March 2009, having examined the plaintiff twice, and after viewing the results of the most recent radiological and nerve conduction studies and EMG investigations, Mr Day had reported to the general practitioner and to the plaintiff’s solicitors.
52 Relevantly, Mr Day:
(a) found that – “There was minor wasting of the right spinati and possibly trapezius but muscle power was normal throughout with unremarkable tendon reflexes and normal sensation.”;
(b) concluded that – “… Although the MRI scan did show minor disk bulges, there was no compression of nerve roots or spinal cord. I felt it more likely that there was some degree of rotator cuff degeneration or possibly C5 or C6 radiculopathy, but subsequent right shoulder ultrasound showed no significant abnormality in the rotator cuff muscles or tendons. Nerve conduction studies and EMG performed on the 26th March 2009 were also quite normal with no evidence for active radiculopathy, brachial plexus lesion or peripheral nerve entrapment… [I]t is my opinion that he has a localised pain syndrome related to soft tissue injury, possibly local muscle strain or tendinitis, [sic] but I was confident there was no associated nerve injury, spinal cord complication or serious derangement of the shoulder which would required surgical attention…”;
(c) reported that the plaintiff’s condition was stable; and (d)
recommended ongoing physical therapies and possibly a formal pain management program.
The medico-legal assessments
53 Commencing with the plaintiff’s only medico-legal assessment, I note that orthopaedic surgeon, Mr Khan, first reported to the plaintiff’s solicitors in August 2008. At the time Mr Khan examined the plaintiff he appeared well- resourced with copies of the plaintiff’s first affidavit, two MRI reports, radiological reports obtained in 2001, the results of the most recent nerve conduction studies in 2008 and a selection of reports submitted by treating doctors during 2004, including physiotherapist, Mr Goodwin’s report.
54 Nevertheless, as far as I can tell Mr Khan did not have the advantage of also considering the opinion of the treating neurologist, Mr Day, who said he was not satisfied that there was evidence of active radiculopathy, brachial plexus lesions, or peripheral nerve entrapment.
55 It is apparent from both his first report and Mr Khan’s later report that he questioned the plaintiff in detail about, amongst other things, his hobbies. Interestingly, in respect to the plaintiff’s hobbies Mr Khan twice reported that the plaintiff told him that he “used” to sail. To the extent that this implies that the plaintiff’s condition prevented him from sailing, of course, this was never the case and as a result Mr Khan’s understanding of the plaintiff’s post-injury and current level of activity needs to be considered in this context.
56 Relevantly, allowing for the history he received, in Mr Khan’s opinion the plaintiff:
“… has a pre-existing history of problem with his shoulder or neck before the reported injury on 13 February 2001 during the course of his occupation with Laminex Group Pty Ltd.
As a result of pulling on two loaded trolleys towards him with his right arm in order to lock it to the forklift, he has sustained a strain to his right shoulder and right side of the neck with flare up of mild pre-existing disc degeneration in his cervical spine, particularly at C5-6 levels but also in the upper part of the cervical spine.
He has developed symptoms of mild rotator cuff tendonopathy without a tear of the tendon resulting in intermittent impingement of the rotator cuff.
He has developed symptoms of irritability of the nerve roots in relation to the brachial plexus with resulting pins and needles and paresthesia (sic) but without any signs of radiculopathy or nerve root compromise.
He has been left with significant partial/permanent impairment of function as an after effect of this injury.
The condition has now stabilised. He is unable to perform work requiring excessive bending, twisting and turning of his neck, lifting heavy weights with the right arm, pushing and pulling strenuously with the right arm, or using his right arm repetitively in strenuous physical activities.
…
There does not appear to be any indication for surgical treatment either for his right shoulder pain or the injury to his cervical spine.
He does not have any signs of carpel tunnel syndrome.
He has been adequately investigated and managed, and presently requires continuation of a home based exercise program and analgesics intermittently as required. He is totally unfit for his pre-injury duties and he cannot work outside the restrictions as mentioned above.”
57 Unlike the earlier medical evidence, this report notes pre-existing problems with the plaintiff’s neck or shoulder, although as the plaintiff said in his first affidavit, his “difficulties really began on 13 February 2001 …”.
58 Having reassessed the plaintiff on 10 March 2009, apart from reiterating his earlier opinion, Mr Khan also explained that:
“[The plaintiff] has been shown to have multilevel disc bulges in his cervical spine and has mild flare up of facet joint arthropathy in the right side of the lower part of the back but without radiculopathy. He gets referred pain and pins and needles down his right arm and right side of the neck in relation to C5-6 and C2-3, C3-4 cervical vertebrae.
He has developed chronic pain in the right shoulder with mild residual stiffness in the shoulder. He does not appear to have a tear of the rotator cuff but chronic rotator tendonopathy with intermittent impingement of the rotator cuff resulting in a mild degree of adhesive capsulitis…
His condition has stabilised.
He is unable to perform any strenuous work requiring excessive bending, twisting and turning of his cervical spine, lifting heavy weights with his right arm, pushing and pulling with his right or elevating the right arm repetitively at shoulder level.
He has come to terms with his injury and is managing to live within his restrictions. It has not only affected his working aspect of living but his domestic life and recreational pursuits…”
59 As I have already mentioned, the defendant relied on Mr Weaver’s original medico-legal assessment on 3 September 2007, when he reported “… a
genuine mild degree of cervical intervertebral disc pathology, with the additional presence of a mild rotator cuff problem involving the right shoulder region.”
60 In addition to this medico-legal evidence, the defendant relied on two other reports. The first was an impairment assessment from orthopaedic surgeon, Mr Battlay, dated 28 February 2007 in which he assessed a combined whole person impairment of 11 per cent on the plaintiff’s cervico-thoracic spine and both shoulders. Relevantly, in doing so, unlike a number of the doctors to whose reports I have already referred, Mr Battlay, perhaps surprisingly, specifically excluded any evidence of muscle wasting. He concluded that the plaintiff was suffering from a “primary cervical injury with possible involvement
of the shoulders subsequently. Certainly there is a restriction of shoulder
movement bilaterally. There is no radiculopathy.”61 The second report was that of occupational physician, Dr Mary Wyatt, who assessed the plaintiff at the request of the defendant’s solicitors on 29 August 2007, at which time the only results of the various medical investigations to which she had access were those made between March and October 2001. However, given the results of later investigations, her diagnosis is defensible and certainly consistent with other opinions offered by treating specialist’s such as Mr Hoy and Mr Day.
62 Dr Wyatt diagnosed:
“… a neck and shoulder girdle strain-type problem. This has caused referred symptoms into the arm and into the neck. His investigations show some non-specific signs at the right shoulder, and his scans of the neck do not indicate nerve root compression. He presents to have a muscular strain-type problem causing irritation of the nerves.”
63 Notably, Dr Wyatt also thought that the plaintiff would continue to suffer from symptoms “which are bothersome, and they will flare-up from time to time, giving him more bother”.
64 Whilst Dr Wyatt also assessed the plaintiff as fit to perform his current desk- based job and what she called his “normal job”, I think it clear from the content of her report that by the latter she meant his forklift driving job, absent any requirement that he push trolleys. In any event, the use of the term “bothersome” to describe the impact of the plaintiff’s symptoms certainly diminishes the significance of the injury-related pain and disability described in the plaintiff’s evidence and his reports to doctors.
65 As is evident from my discussion of the medical material, the reports provided by Mr Weaver, Mr Day and Mr Khan are helpful because (in Mr Khan’s case, subject to allowance for any misapprehension he had about the extent of the plaintiff’s hobbies), they have accessed most of the investigative reports and earlier medical material as a precursor to their assessments. These circumstances have allowed me to pay particular attention to their treating and medico-legal opinions.
Compensable injury
66 In this application, consistent with the medical and radiological material, there is evidence of pre-existing degenerative change in the plaintiff’s cervico- thoracic spine which, at hearing, the defendant appeared to accept was probably aggravated by the work-related incident described by the plaintiff on 13 February 2001. Mr Khan appears to accept that there was an injury- related “flare-up” of mild, pre-existing, disc degeneration. This is in keeping with Mr Weaver’s less specific diagnosis and the symptoms initially reported for the right arm and the right side of the plaintiff’s neck.
67 Nevertheless, accepting for the moment that there was an aggravation injury to the structures of the cervical spine, Mr Day’s analysis, the results of the various investigations and his opinion argue against any aggravation injury making a material contribution to any ongoing symptoms and disability.
68 So far as the plaintiff’s right upper limb is concerned, allowing for particularly the results of the radiological and other investigations, not to mention the reports and opinions expressed by Mr Weaver, Mr Day and Mr Khan, I think it probable that the plaintiff suffered strain and soft tissue injury (as Mr Day described it “possibly local muscle strain or tendonitis”), which has left the plaintiff with rotator cuff tendonopathy, and, nowithstanding the absence of any lesion, some irritability in relation to his brachial plexus.
69 It follows from the discussion above that the plaintiff has not satisfied me to the requisite level that compensable injury-related impairment of his cervical spine currently makes a material contribution to the pain and suffering consequences of which he complains.
70 The questions that remain are:
(i) to what extent, if any, injury-related impairment of the right upper limb contributes to any pain and suffering consequence of which the plaintiff complains; (ii) is the impairment of the right upper limb permanent; and (iii) does any pain and suffering consequence meet the “very considerable” test? 71 Having regard to all of the evidence and, in particular, the medical opinion, I have approached the task before me on the basis that it is likely that injury- related impairment of the right upper limb is permanent in the sense that it is likely to last for the foreseeable future and that impairment of this body function makes a material contribution to, for instance, the plaintiff’s reported level of pain, his inability to engage his right upper limb in manual handling tasks and the restrictions that apply to his activities in work, domestic and recreational settings.
Pain and suffering consequences
72 The pain and suffering and loss of enjoyment of life consequences of impairment of the plaintiff’s spine and right upper limb were summarised by him, in the main, in his extensive affidavit evidence sworn between May 2007 and April 2009 and, to a lesser extent, in his responses in cross-examination and re-examination. As I have already mentioned, his wife’s affidavit seeks to corroborate some of these matters.
73 The pain and suffering and loss of enjoyment of life consequences fall into the following broad categories:
(A) Pain 74 In his first affidavit the plaintiff described “constant but variable levels of pain” from which he was “never totally free. The pain which I particularly notice is pain in the right side of my neck, in my face and in my right shoulder”. One consequence of this pain was sleep disturbance “on a daily basis”. However, I note that in re-examination the plaintiff nevertheless said that once he was active “a lot of” the pain “disperses”.
75 In his second affidavit the plaintiff made it clear that this pain extended “into the right side of” his face.
76 In his third affidavit the plaintiff said that he consulted Dr Wiseman “every few months” (in his final affidavit this was expressed as “usually every one to two months”) for prescription of medication and also indicated that as part of his pain management regime he was trialling “Norsepan (sic) morphine patches
to try and relieve the neck and right shoulder pain which I continue to suffer from. Those symptoms although variable from one day to the next have plateaued and I find that there has been no improvement or no deterioration in my level of symptoms.”
77 In his final affidavit the plaintiff reported taking “Tramal as required but prefer
to use Panadol. I also use another muscle relaxant medication and am prescribed another medication to prevent reflux symptoms arising from the use of the various medications that I take.”
78 In cross-examination the plaintiff said that he suffered a lot of pain in association with his daily activities (including lower back pain) which he tried to control through the use of non-prescription medication such as Panamax and Panadol (which in cross-examination he said he used at the rate of “around a box of 100 per month”) and exercise.
79 In addition to his medication and home-based exercise the plaintiff also said that:
(i) he regularly received physiotherapy treatment to his neck and shoulder. In cross-examination the plaintiff said that in the six months prior to the hearing he attended physiotherapy on average most weeks and sometimes twice a week. The plaintiff also said that in the last six months his physiotherapist had performed “dry needling” about half a dozen times; (ii) he did swimming exercises, probably once a month for about half an hour; (iii) he “stretched” his neck with a home-based traction machine two to three times per week. 80 My understanding of the plaintiff’s evidence relating to the management of ongoing pain from his injury was that having been prescribed stronger medication such as Tramal (which he took “occasionally” because it made him “not quite with it” and Norspan patches, he was reluctant to use this stronger medication and relied in the main on non-prescription pain killers, physiotherapy, some home-based exercise and by limiting the activities in which he engaged.
(B) Work activities 81 I have already described in some detail the plaintiff’s transition from manual- based tasks to his current managerial to which, on all of the evidence, impairment of each body function contributed, although the employment circumstance in which the plaintiff now finds himself through the loss of the opportunity to return to his pre-injury employment would not, of itself, amount to a serious consequence of either injury-related impairment.
(C) Recreational activities 82 Apart from the loss of his pre-injury employment, the emphasis in this application has been on the loss of, or the limitations placed on, recreational activities through pain and disability.
83 Prior to his injury the plaintiff was, and I think it reasonable to conclude that for a man of his years continues to be, a physically active and fit man. In his first affidavit, and in this regard he was supported by his wife’s affidavit, he said that since his injury he can no longer engage in activities which place strain on his body because they exacerbate his symptoms.
84 The plaintiff cited a number of areas of activity impacted. For instance, in his first affidavit he deposed to previously engaging in “pushbike riding and rode
perhaps 40 or 50 kms a week whereas I now perhaps take my bike out once every few months and go for a short ride along the south eastern bike track of
only a couple of kilometres or so.” This evidence is consistent with having
also reported to Dr Wyatt in 2007 that he continued to ride his bike.85 However, in his final affidavit the plaintiff said “I have not resumed any bike riding because of the pain that I was suffering.” Not surprisingly, the plaintiff was challenged on this issue in cross-examination at which time he said that he had tried to ride his bike only once since his injury. In all the circumstances I did not find this a credible response. Indeed, it was one of a number of instances where I formed the view that the plaintiff sought to minimise the level of his post-injury activity.
86 Examples of other recreational activities which the plaintiff said were either no longer open to him or limited by his pain and disability were rock and roll dancing with his wife every Saturday night (an activity not reported by the doctors or mentioned in his wife’s affidavit) and long-distance driving.
87 Nevertheless, recreationally the plaintiff said that he now walks for exercise (“the least painful form of exercise for me”) and he has taken up sailing.
88 As to his walking exercise, it was clear from his responses in cross- examination that he now walks with his wife “a lot” for some hours and over long distances. For instance, he said he often walked from the suburbs along Gardiner’s Creek and “in to town” for coffee, a journey he said took up to 3 hours.
89 As to his sailing activities, since his work-related injury the plaintiff has purchased and sails a 22 foot trailer/sailer boat moored at Hastings to which the plaintiff said he had made modifications to reduce the strain on his arms and neck.
90 In his first affidavit the plaintiff said that “we try to get down there [Hastings]
every week or two the yacht has an auto-tiller which greatly assists in the steering of the vessel. Also my partner is able to assist in many aspects of the sailing including putting up and bringing down sails and like activities.”
91 In his final affidavit the plaintiff said that he sailed the boat “on perhaps a monthly basis” but again explained (and this was reiterated in his evidence at hearing) that he “motored” when unaccompanied. Nevertheless, in cross- examination the plaintiff agreed that when sailing his boat he operated what he described as easily operated “light sails”.
92 At hearing the plaintiff was also cross-examined at some length about his sailing activities with a friend, who apparently owns a 33 feet catamaran crewed from time to time by the plaintiff on sailing trips in Port Phillip Bay and to Tasmania and Apollo Bay.
93 Based on the abovementioned evidence, it is likely that impairment of the plaintiff’s right upper limb, whilst not dissuading him from sailing his own smaller craft or crewing on a larger craft both in bay and ocean conditions, has had some impact on his enjoyment of an activity taken up subsequent to his injury.
94 Nevertheless, that the plaintiff (and his friend) was prepared to risk the demands of bay and ocean sailing as a working crew member does suggest that the impairment of each body function and the plaintiff’s level of pain is probably somewhat less detrimental to his sailing and general recreational activities than the plaintiff would have us believe.
95 In reaching this conclusion I have also taken into account the plaintiff’s claim at hearing that during Easter this year, due to pain, he elected not to make a sailing trip with his friend to Tasmania. Whilst he may not have made the journey described, in all the circumstances, I was not satisfied from his evidence alone that this decision was solely related to pain or any alleged deterioration in his condition. Indeed, the suggestion by both the plaintiff and his wife that his condition is deteriorating is not borne out by his medical history and the evidence. However in saying this, I do not intend to suggest that the plaintiff does not suffer from episodes of activity-induced right upper limb pain typically controlled by intermittent use of non-prescription medication or that he is not disabled from performing a range of manual tasks at the level described by many of the doctors.
(D) Domestic activities 96 From the material before me, it was not clear to what extent, pre-injury, the plaintiff performed common domestic activities. Nevertheless, the domestic activities impacted by pain and disability to which the plaintiff (and his wife more generally) referred involved manual tasks such as gardening, home cleaning and maintenance. According to the plaintiff he now employs someone to mow his lawns. However, in cross-examination the plaintiff agreed that he had performed some property maintenance although he did so with difficulty, and that he performed some limited gardening, such as removing pumpkin bushes (to which his wife, who did 95 per cent of the gardening, was allergic).
97 Looking at all the evidence, in my view, the consequences of any injury- related impairment of the right upper limb, whether considered individually or collectively, in the area of the plaintiff’s work, domestic and recreational activities do not satisfy the “very considerable” test. Accordingly the outcome of his application in respect to injury to this body function really rests on the evidence as to his level of pain and the need for pain management.
98 The pathology identified in relation to each condition is remarkable primarily because, as the defendant was keen to point out, objectively speaking, it is not significant pathology. The real question, however, is whether the right upper limb pathology produces pain at the level and with the constancy claimed by the plaintiff.
99 Treating and examining doctors have not questioned the plaintiff’s genuineness although it goes without saying they have not had the benefit of all of the evidence produced in court and typically they have not been asked to directly comment on all of the issues relevant to a determination of this application. For instance, Dr Wiseman, who is apparently responsible for prescription of the plaintiff’s medications, and whose last report pre-dates the report from treating neurologist, Mr Day, spoke of chronic pain management although he also offered the opinion that the plaintiff’s activities at home “have
not been significantly affected, though there may be some limitation in outside
or recreational functions.”100 Physiotherapist, Ms Freedman, on whom the plaintiff said he continued to attend, spoke of “significant shooting pains and tingling” down the plaintiff’s arm, although she also noted that the plaintiff was “still able to perform all of the activities of daily living” .
101 Relevantly, Mr Day reported that the plaintiff “rarely or sporadically used
Norspan patches, Endep and Tramadolbut did not require constant analgesic
intake” (sic), but nonetheless recommended a continuation of “physical therapies” and “[d]epending on his response” also recommended a formal pain management program. As far as I can tell, the plaintiff has not pursued the last-mentioned recommendation and this is probably because the plaintiff manages his pain (including his lower back pain), as suggested by Mr Khan in his report in August 2008, by continuing his home-based exercise program and using analgesics “intermittently as required”.
102 In mentioning this I have not ignored Mr Khan’s later report in which he also said that the plaintiff’s “injuries have stabilised and he may require seeing his
general practitioner from time to time and may require pain block injections to his neck. He does not require surgical treatment for his right shoulder but may require seeing his specialist if the shoulder seizes up and requires
hydrodilation.” Nevertheless, as far as I can tell these interventions have not
been required, or sought, by the plaintiff since 2006.103 As is no doubt evident from my discussion of all of these matters, the plaintiff has not satisfied me that his evidence as to the level and constancy of pain generated by injury-related impairment of his right upper limb represents an accurate description of this consequence. Indeed, in my view, the level of treatment interventions described and recommended in the more recent reports to which I have referred are probably a more reliable indicator of the extent of any pain consequence attributable to this impairment, which because of the long-term nature of his symptoms is arguably marked, but falls short of being “very considerable”.
104 Accordingly, for the reasons explained above, when judged by comparison with other cases in the range of possible impairments or losses of function of the right upper limb, the plaintiff has not satisfied me that the pain and suffering consequence (which includes the range of consequences traversed above) may be fairly described as being at least very considerable.
Orders 105 I propose to make orders dismissing the plaintiff’s application in respect to the injury suffered on 13 February 2001 to his cervical spine and to his right upper limb. I will hear from the parties in relation to the making of any further orders.
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