Taylor v Victorian WorkCover Authority
[2012] VCC 2024
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA | Not Restricted |
AT WODONGA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01688
| MICHAEL TAYLOR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 24-25 October 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Taylor v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2024 | |
REASONS FOR JUDGMENT
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ACCIDENT COMPENSATION – serious injury – shoulder injuries – Accident Compensation Act 1985 s 134AB – Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC and Mr R Morrow | Slater & Gordon |
| For the Defendant | Mr R Middleton SC and Ms R Kaye | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff, Mr Michael Taylor, seeks leave to commence proceedings against the Victorian WorkCover Authority in respect of two serious injuries alleged to have been suffered while working for SPC Operations Ltd (“SPC”).
2 The two injuries are:
(a)a permanent and serious impairment or loss of function of the left shoulder, being left shoulder rotator cuff impingement syndrome; and
(b)a permanent and serious impairment or loss of function of the right shoulder, being right shoulder rotator cuff impingement syndrome.
3 Mr Taylor made two affidavits and was the only person to give evidence. A Joint Court Book containing diagnostic investigations and medical reports was also tendered.
Mr Taylor’s evidence
4 Mr Taylor is now aged sixty-four years. He was born in England and came to Australia when aged eleven. He is right handed. He is married and has four adult children and nine grand children, aged between five and seventeen years. They live in Shepparton, Cobram, Pakenham and Batemans Bay.
5 Mr Taylor attended Shepparton Technical College to Form 3. He then worked in an orchard and obtained a job at Visy Packing in Shepparton, where he worked for twenty-one years, first as a process worker and then as a forklift driver. In 1989, he started making concrete pipes at Midland Concrete Pipes in Shepparton. He also commenced work with SPC, performing seasonal work on the night shift as a cleaner. These duties extended to forklift driving. He ceased working for Midland Concrete Pipes in 1983/1984.
6 He was employed by SPC on a casual basis for mainly seasonal work. He usually worked for a minimum of four months per year between December and just after Easter, and sometimes a further four months for clean down work out of season. In one year, he worked nine months. If work was not available at SPC, he would work on an orchard performing thinning work, usually for about two months a year. If he could not find work he would go on unemployment benefits.[1]
[1]Transcript (“T”) 19
7 He worked with SPC from 11.00 pm to 7.00 am during the season and from midnight to 5.00 am outside of the season.
8 Mr Taylor’s duties as a cleaner and forklift driver with SPC were heavy and repetitive. He was required to clean the fruit machines by hosing them and clean the surface of the machines with a scouring pad. He had to pull and yank high pressure hoses around. He described this was heavy and awkward work. The hoses were about 50 millimetres in diameter and weighed a lot. They were especially difficult to handle when they had hot water and steam passing through them. They would regularly get caught in the machinery and he would have to tug hard on them in order to free them. He also had to apply a fair amount of pressure when rolling the hoses up in order to put them away.
9 Mr Taylor gave evidence that he also had to do rubbish runs which involved taking plastic wheelie bins and tipping them into large steel bins; 5 feet long, 4 feet wide and 4 feet high. He would drive a forklift with one of the steel bins on the tynes of the forklift. Then he would wheel and push the wheelie bin up to the edge of a steel bin. He then placed his right hand under the base of the wheelie bin, with his left hand on the top of the lid and lifted the bin, taking the weight of it primarily with his right arm and shoulder. He then tipped the bin empting it into the steel bin. He emptied up to fifty to one hundred wheelie bins per shift and in season, more than one hundred bins. At times there would be more than one person emptying them.
10 The bins contained food, food scraps and general rubbish, depending on their location within the factory. Some of the bins weighed in excess of 20 kilograms when full, depending on what was in them. Sometimes they were so heavy he could not lift them on his own.
11 There was a tipper machine which Mr Taylor could attach to a bin and by pressing have it lift the wheelie bin and tip the contents into the large steel bin. However, it was effectively stationary and placed right at the back of the factory near the fruit machines. It was not practical to move the tipper machine to other locations. The factory floor area was enormous.
12 If another employee, who worked on the rubbish run was sick he would also do their job, including emptying the rubbish bins
13 In the later years of his employment, Mr Taylor only emptied the bins when other people were away or on holidays
14 Mr Taylor’s evidence was that his health prior to commencement of employment with SPC was very good. He had never suffered any significant problems with his shoulders. In about 2003, he fell off a ladder at home and suffered an injury to his back, but that injury had stabilised.
15 Mr Taylor stated that the pain in his right shoulder first developed in in late 2007 and early 2008. He noticed it was sore particularly after a heavy day’s work. He thought it was just muscular and he described the soreness as initially “on and off” and manageable. He reported it to his doctor, Dr H Lee, in November 2008.
16 On 18 December 2008, Mr Taylor was placed on modified duties and started work in a team of four, two men and two women, unpacking and packing the boxes on the pallets. The women inspected and sorted the fruit. His duties were to pick up a box containing fruit, off a pallet, and put it on the bench where it was inspected for about two minutes. He would then take the box and put it on a different pallet. This was a continuous process and he completed about three or four pallets of boxes of fruit per shift. There were about 80 boxes per pallet. He worked a four and a half hour shift. The boxes weighed up to 5 kilograms. They were stacked eight high. There were twenty-two boxes of fruit in each row on the pallet He was required to reach high when unpacking and packing boxes from the top row.
17 Mr Taylor attended the SPC soft tissue team, which was apparently a service or facility available to employees. He underwent weekly massage treatment and occasionally acupuncture and received instruction in exercise.
18 Despite performing modified duties, the pain in Mr Taylor’s right shoulder persisted.
19 Around February 2009, Mr Taylor’s left shoulder became sore, particularly when unpacking and packing the boxes of fruit from the top rows of the pallet. His right shoulder continued to be painful. He tried to protect it by relying mainly on his left hand when lifting and stacking the boxes. The soft tissue team at SPC began treating his left shoulder as well as his right shoulder. At home, Mr Taylor performed an exercise program using a Thera‑Band, or an elastic band, every two or three days.
20 Mr Taylor continued performing the modified duties and in May 2010, he asked for an increase to twenty two and a half hours per week, which were the maximum hours possible while he was on modified duties.
21 Mr Taylor stated that soon after this request, his supervisor informed him that he was concerned that he had the shoulder problems, that he did not care what his doctors said and that he was a liability.[2] Two weeks later, his employment was terminated. The reason given to him was lack of work. However, his evidence was that there was plenty of work and in effect, he was saying that the reason given to him for his dismissal was not the real reason. He stated that SPC wanted him to look for work through an employment agency while he was still working for it. He made many job applications during this period and also after he left SPC. However, he found that:
“with the shoulder nobody would employ me.”[3]
[2]T 18
[3]T 20
22 Mr Taylor said that he was quite happy doing the modified duties and “he could manage quite easily doing them.”[4]
[4]T 20
23 Mr Taylor attempted to gain other employment, but said the limitation in the use of his shoulders has caused him to be unsuccessful. He currently receives a disability pension.
24 He stated that his writing and spelling skills are poor and he had no idea at all about computers. He has only ever worked outdoors, doing manual and labouring type work. He considers that he is unfit for those activities. He is not fit to work as a forklift driver, because it involves getting on and off the forklift regularly, as well as lifting materials on to the forklift and then lifting them off.
25 Mr Taylor stated that he had intended to work into his late sixties, that work gave him great enjoyment and without the presence of work, he felt a lack of purpose in life. He gave the following evidence about the importance of his work:
“Q.…Mr Taylor, you told His Honour that your employment was terminated and you have looked for other employment. How do you feel about not being able to work? – A.-I feel bad about not being able to work. Like, I mean, I used to enjoy going to work really.
Q. What was the enjoyment you got out of it?---A. Well, it was having a purpose in life, wasn’t it, earning money and all that.
Q. When you say it makes you feel bad, can you elaborate upon what you mean when you say it makes you feel bad?--- A. Well, I mean, nearly everybody likes to work and earn money and things like and if you are not earning money, well, you are sort of – I don’t know, you sort of feel that you haven’t got a purpose in life sort of thing if you are not earning money and things like that.
Q. Did you have friends in the workplace?--- A. Yeah, yeah, I had friends in the workplace.”[5]
[5]T47
26 Mr Taylor stated that both his shoulders are equally bad. The pain is present all the time, although it varies in intensity and is made worse with activity. He finds that raising his arms above head height, or heavy lifting with either arm aggravates the pain. He often has difficulty in sleeping and finding a comfortable position in bed, as lying on his left or right shoulders increases the pain. He regularly gets up during the middle of the night because of the pain. He sometimes then takes a Panamax to help get back to sleep.
27 He gave the following evidence about the pain:
“Q. ….but tell His Honour how bad the pain is that you got all the time?--- A. Yeah, yeah, well the pain is that bad that sometimes at night I cannot sleep. I have got to – and trying to sleep on my side, if I sleep on the right shoulder and that gets sore I have to turn to the left and then that might get sore and I end up trying to sleep on my back and I can’t sleep on my back and I end up some nights not having any sleep at all or hardly any sleep.
Q. What effect does that have on you, on how you cope the following day?---A.Well, I am tired all day.
Q. Irritable and grumpy? ---A. Yeah, that’s right, yeah.”[6]
[6]T46
28 He first took Panamax in 2008 when he experienced shoulder pain. He obtains it by prescription, which makes it cheaper than if it purchased without a prescription. He cannot take other medication for pain such as Asprin because he has a duodenal ulcer. He continues to take Panamax four or five nights a week, because he has “constant pain in his shoulders all the time.”[7] If he does not, pain wakes him at night.
[7]T32
29 He is restricted in many of the activities he previously enjoyed. He has a limited range of movement caused by pain in both shoulders and he is not able to hold them up for long periods or take their weight without increasing his pain.
30 Prior to the injury, he was able to perform most of the maintenance tasks around the house, such as cleaning the gutters and painting under the eaves. He did these tasks infrequently, but in 2010 he still had to clean the gutters when the water overflowed. He said that when he did that, he had pain in his shoulders all night.[8]
[8]T42
31 Mr Taylor’s home has a big back lawn, which includes a vegetable patch and two citrus trees. He had a large vegetable patch which he enjoyed tending and had no problem digging in. He often gave the vegetables to his family. Before his injury, he would work in the vegetable patch two or three times a week and every year dig it up and plant vegetables.
32 He has reduced the size of his vegetable garden because of the injuries, to about two thirds of its former size. He still does some planting and still tends and waters the vegetables every second day. Digging in his vegetable garden exacerbates his back and shoulder pain. Since the shoulder injuries, he is unable to dig the vegetable garden all in one piece, he can work for two hours and then has to rest.
33 He can no longer mow the lawn in one go, he has to stop after completing half and then come out after lunch and do the other half. Sometimes pulling the cord to start the mower is painful and he has to pace himself.
34 Mr Taylor said that the division of domestic responsibility remained that his wife looked after the house, while he looked after the garden.[9] He occasionally helped his wife with some of the domestic tasks, but not a great deal. But because of his work, he did not have time to do much. He does the vacuuming about every four weeks. He finds that the activities of putting out the washing can be painful.
[9]T25
35 He loves playing with his grandchildren who range in ages from 18 to 5, and five of whom aged 10 to 17 live nearby. He used to kick the footy and play with them in the backyard about once a month. Now, he cannot afford to run around and play footy with them, If he fell over he might injure his shoulder. He cannot lift his arms to mark a ball.[10] He accepted that his grand children were growing older and liked to play on computers and watch television and that may also have contributed to him playing less with them in the backyard.
[10]T45
36 Mr Taylor enjoyed going fishing about once a month and camping, usually with his son. They often camped on long weekends, pitching their tents and then going fishing, which gave him a lot of pleasure. Now he only does this once every two or three months. He can no longer cast line over his shoulders, but has to cast from the side.
37 He still drives his car and earlier this year drove to Bateman’s Bay. He cannot drive for long periods anymore and has to share driving with his wife. After about one hour, he experiences pain in his shoulders and he has to get out of the car and walk around.[11]
[11]T30
38 He still walks most days for exercise and performs exercises at home about once a week. He has not received massages since leaving SPC.
39 Mr Taylor said that his shoulder pain has not got better since he stopped work.[12]
[12]T36
40 Mr Taylor was an impressive witness, ready to make concessions in cross-examination which were not always supportive of his case. I accept his evidence, including his description of the onset of the pain and discomfort in his shoulders. his experience of that pain and the effect that it has on him.
Medical evidence
41 Mr Taylor’s general practitioner is Dr H Lee.
42 In a letter of 26 June 2009 referring Mr Taylor to Dr David Chew, an orthopaedic surgeon in Shepparton, to determine whether he would benefit from an operation to his shoulders and if not, what level and type of work would he be suited to, Dr Lee set out Mr Taylor’s medical history. He recorded that on 26 November 2008, Mr Taylor complained of right shoulder aching on and off over the last year, which was worst when working, but was also sore after working.
43 Dr Lee referred to an ultrasound of 28 November 2008, which showed that there was a partial tear in Mr Taylor’s right shoulder of the anterior aspect of the deep surface of the supraspinatus, which extended over 7 millimetres, and a further partial tear of the superficial surface of the supraspinatus extending over a distance of 7 millimetres. He further stated:
“The supra-spinatus appears heterogeneous in keeping with the presence of tendonopathy. The sub-scapularis, infra-spinatus and bicep tendons are intact. The sub-acromial bursa is thickened with evidence of bursal bunching upon shoulder abduction.
CONCLUSION Partial tears involving the supra-spinatus with associated tendonopathy. Sub-acromial bursitis.
Would be fit for light supervising duties or any work with left arm 5 kilograms right arms.
Should be OK driving a forklift at the moment.”
44 In a report of 3 September 2009, Dr Lee stated that Mr Taylor had informed him that the condition of his left shoulder was actually a second separate incident that happened in March 2009 while stacking boxes on a pallet above his head using his left arm.
45 In a letter to Mr Taylor’s solicitor of 29 June 2010, Dr Lee stated:
“Mr Taylor has bilateral tears of his supraspinatus tendons which will cause him pain with any persistent prolonged use of his arms and this is unlikely to change. The tendons may tear further with time either spontaneously or more likely if he is walking. He is also at risk of rupture if he has a fall on either arm.
The condition is permanent and does not heal. He will have some ongoing pain in his shoulders most of the time and it will flare up with any prolonged use of his arms. I do not feel that there is any particular concern over a frozen shoulder developing. However he may need an operation on one or both shoulders in the future if either tendon ruptures completely.
It is liveable with and in a different setting ie office work it is likely that this would not cause excessive pain or problems. However Mr Taylor is 62 years old and it may be difficult to find a suitable job.”
46 Dr Lee’s last report was dated 29 July 2012. In it, he set out the history of Mr Taylor’s attendance at his practice. Some of the matters included in that history were as follows. Mr Taylor was initially seen on 26 November 2008, when he complained of:
“right shoulder aching on and off over the last year after work gets sore worse when working SPC cleaner night shift pulling hoses and rolling them up.”
47 Dr Lee stated that Mr Taylor was reviewed by Dr A Wallace on 15 January 2009, when he first mentioned that he had some moderate left shoulder pain with increased use as well, but it was not severe enough to investigate at this stage. Dr Lee saw Mr Taylor on 5 March 2009, on which occasion he first mentioned his left shoulder problems. On 24 August 2009, Dr Lee arranged a left shoulder x-ray and ultrasound which showed a partial thickness tear of the left supraspinatus and included it on his certificate, due to the same cause as the right shoulder injury. As previously stated, on 3 September 2009, Mr Taylor advised Dr Lee that the problem in his left shoulder started in March 2009 when, on light duties, he was stacking boxes on a palette over his head using only his left arm and noticed pain in his left shoulder.
48 Dr Lee’s description and prognosis of Mr Taylor’s condition were expressed as follows:
“Mr Taylor has a bilateral rotator cuff syndrome with tears in both supraspinatus tendons which cause shoulder pain and is aggravated by overuse of his arms as is when he is working. The twenty years of cleaning work pulling hoses may well have caused the tears in the right arm as may the reaching up to handle boxes with his left arm.
The shoulder rotator cuff tears cannot go away and will cause pain during the prolonged use of the arms and shoulders; ie in lifting, and will cause swelling and pain in the shoulder joints and bursae for up to a week afterwards.
Mr Taylor has bilateral tears of his supraspinatus tendons which will cause him pain with any prolonged use of his arms and this is unlikely to change. The tendons may tear further with time either spontaneously or more likely if he is working. He is also at risk of rupture if he has a fall on either arm.
The condition is permanent and does not heal. He will have some ongoing pain in his shoulders most of the time and it will flare up with any prolonged use of his arms. I do not feel that there is any particular concern over a frozen shoulder developing. However, he may need an operation on one or both shoulders in the future if either tendon ruptures completely.
It is liveable with in a different setting; ie office work. It is likely that this would not cause excessive pain or problems. However, Mr Taylor is 63 years old and it may be difficult to find a suitable job.” ( emphasis in the original)
49 Dr Lee’s opinion of the prospect of future surgery or other medical treatment was:
“This is unclear. The rotator cuff tears are small but painful. If they were to deteriorate and he developed full thickness tears there might be benefit from surgery. He is more likely to have a bigger tear in future given he has smaller tears now.
50 Under the heading, “the likelihood and nature of any long term deterioration” , Dr Lee stated:
“He is getting older and the tears are likely to worsen with time.”
51 Dr Lee stated that Mr Taylor’s capacity for work generally and in the future was “virtually nil”.
52 I accept Mr Taylor’s evidence that he attends Dr Lee on a reasonably regular basis, every six weeks or so, to get a renewal of his prescription and also for a general medical check up, including treatment of his ulcer.
53 As stated, Mr Taylor was referred by Dr Lee to Mr Chew who provided one letter, dated 13 April 2010, setting out the detail of his consultations with him.
54 Mr Chew first saw Mr Taylor in February 2009. Mr Chew recorded that Mr Taylor had been on light duties and his right shoulder pain had improved. It started giving him trouble in 2008. He noticed the pain without the occurrence of any precipitating injury. He had no previous history of fractures or traumas to the right shoulder. He had some night pain when he slept on his right hand side, but he told Mr Chew that the pain was very good at the time. Mr Taylor found that if he performed activities above shoulder height, he had some recurrence of the pain.
55 Mr Chew’s examination revealed a well looking man, who had a full range of movement of the right shoulder without any evidence of a painful arc. He had slight crepitus in the sub-acromial region of the right shoulder, but it was not painful to move. He had good supraspinatus, infraspinatus and subscapularis power and there was minimal sub-acromial tenderness. The anterior cruciate joint was non-tender and the cross-abduction test was negative. He had very minor impingement signs at that time.
56 Mr Chew stated that given Mr Taylor’s age, the relative improvement of his shoulder and minimal symptomatology, as well as the minor findings, that considering an operation to do an acromioplasty, or to debride the partial tear would have low probability of returning him to his pre-injury duties. He considered that Mr Taylor’s symptoms were controlled at the time and that surgery was not warranted. At worst, he suggested that a sub-acromial space injection could be performed if he was continuing to have significant pain.
57 Mr Taylor did have two corticosteroid injection in his shoulder.
58 In July 2009, Mr Taylor informed Mr Chew that after the injection, he had some improvement in the pain for about three months. However, over the last two or three weeks, he had started developing pain in the shoulder again. It was somewhat different to the original pain.
59 Mr Chew saw Mr Taylor again in August 2009. He recorded that Mr Taylor’s pain was in the sub-acromial region radiating down towards the upper arm. It sometimes ached at night and woke him up and he would put Emulgel on it.
60 Mr Chew’s examination in August 2009 revealed no wasting above Mr Taylor’s right shoulder. He had a full range of movement of the right shoulder, no pain at the AC joint and the cross-abduction test was again negative. He was still slightly tender in the sub-acromial space and there was no evidence of a painful arc. There was no crepitus or weakness in the supraspinatus or subscapularis function. A second injection was arranged for him
61 On 17 November 2009, Mr Taylor asked Mr Chew to look at his left shoulder because it was starting to give him more trouble. He attributed this to the developed right shoulder pain due to work which was putting more stress on his left shoulder. The pains in the left shoulder were in the point of the shoulder and down the upper arm. Mr Chew recorded that Mr Taylor then mentioned that the right shoulder pain was giving him more trouble.
62 Mr Chew’s examination of Mr Taylor’s left shoulder revealed a full range of movement without any evidence of pain, no grimacing and no painful arc. There was no wasting and his range of movement of abduction was to 160 degrees, forward flexion to 160 degrees, internal rotation to upper lumbar spine level and external rotation to 45 degrees. There was some sub-acromial crepitus, the AC joint was non-tender and cross-abduction test of the left shoulder was negative. Mr Chew considered that the symptoms of the left shoulder were very minor and did not require further treatment, although there was a partial thickness tear of the left shoulder at ultrasound.
63 Mr Taylor told Mr Chew that if he had a return to full duties, when the seasons returned into full swing, he would develop more problems. His symptoms in his right shoulder were similar to when Mr Chew had seen him earlier in 2009. He had not developed any weakness and there was no painful arc. The shoulder was not hurting him enough to consider any further treatment. Any operations on his shoulder would have the potential to make Mr Taylor worse.
64 Mr Taylor had an MRI scan of his right shoulder in December 2009. In April 2010, he again consulted Mr Chew who informed him that the findings of the MRI were that of tendinopathy and only a partial articular surface tear of the supraspinatus. He explained that an operation would not be of service to him and that it was better if he considered doing a different job.
65 The more detailed conclusion by Dr Wong who performed the MRI was:
“Moderate degree of supraspinatus and a lesser degree minor infraspinatus and subscapularis tendonapthy.
Partial tear of the deep surface critical zone of the supraspinatus. There may be other small interstitial tears beside this. Underlying risk factor of subacromial symptoms including acromial enthesophyte and AC joint osteophyte.”
66 Mr Chew concluded his report in respect of the April 2010 consultation by stating:
“With regard to his right shoulder, I think Mr Michael Taylor has supraspinatus tendinopathy with a partial tear. His symptoms were not severe enough to consider an operative procedure. Treatment is really adjustment of his environment and oral medication for pain.
The findings in his left shoulder I think are very similar.
I think Mr Michael Taylor will continue to have problems with his shoulders if he has to do any heavy lifting, particularly above shoulder or chest height. I do not feel an operative procedure is going to reliably make him a lot better than what he is.”
Medico-legal Evidence
67 Mr K Brearley, an orthopaedic surgeon, prepared a report on behalf of the plaintiff on 21 October 2011. In it, he stated that Mr Taylor had:
“ Injury to the rotator cuff of the right shoulder comprising partial tears of supraspinatus tendon and associated tendinopathy with the development of subacromial bursitis.”
68 He described Mr Taylor’s present symptoms and treatment requirements in respect of the right shoulder as follows:
“He has few symptoms now and little disability. He has a full range of movement of the right shoulder. There is some limitation in use, however, of the right shoulder and arm. He has pain if he attempts to do any significant work at or above shoulder height and on heavy lifting and repetitive use of the right arm. No treatment is required other than occasion analgesics.”
69 Mr Brearley also stated that Mr Taylor:
“does have some pain in the shoulder on pushing and pulling and lifting. This is a result of the injury sustained at work. He is restricted also with respect to prolonged use of the right shoulder and all overhead activities. These incapacities will continue for the foreseeable future.”
70 Mr Brearley considered that Mr Taylor was able to perform his pre-injury duties to a limited extent, namely part time only. He was capable of working four hours a day, five days a week. He considered that his pain would continue for the foreseeable future. There was no significant distress or anxiety.
71 The plaintiff also provided a medico-legal report from Mr D Ireland, an orthopaedic surgeon, dated 24 July 2012. He recorded Mr Taylor’s current complaints as:
“ … of transient pain in the right shoulder with abduction movements. This pain is transient and goes as soon as he moves the right arm into adducted position. He notes the pain generally speaking is around the superior aspect of the right shoulder. He has difficulty sleeping on his right side. He notes shoulder pain after driving his motorcar for more than two hours, which requires a 15 minutes rest. The pain in his left shoulder is similar to the right shoulder pain but is less severe.
72 Mr Ireland’s examination of Mr Taylor’s right shoulder failed to show any asymmetry when compared to the left shoulder. There was some mild tenderness over the biceps tendon in the deltopectoral groove.The rotator cuff and the acromioclavicular joint were non-tender. There was no crepitus through a passive range of motion and proactive instability tests were negative. There was a painful arc of abduction on the right from 150 degrees of abduction through to full abduction. Abduction power in 30 degrees and 60 degrees of abduction was normal and symmetrical. Examination of the left shoulder was normal but for a similar painful arc of abduction to that noted on the right side.
73 Mr Ireland considered that Mr Taylor would be able to engage in suitable employment, such as forklift driving, which did not require him to load or unload the forks. He was unable to engage in any significant form of manual work. He stated that the pain suffered by Mr Taylor was minimal and was controlled by self-administered, non-prescription strength analgesics. He was unaware of any distress or anxiety. The prognosis for any further improvement was poor. He stated that Mr Taylor’s condition was basically a degenerative condition and it would continue to deteriorate with the passage of time. He did not require surgical treatment. Further medical treatment might include intermittent sub-acromial bursa injections of corticosteroid to both shoulders.
74 The defendant provided a medico-legal report from Mr J Hart, orthopaedic surgeon, dated 12 September 2012. It recorded that Mr Taylor complained of intermittent, superior pain in his right shoulder after use, such as lawn mowing and performing other activities around the house. It also occurred occasionally if he sleeps on his right side. He was not experiencing any symptoms of clicking, catching or giving-way of the right shoulder. Elevation of his arm above shoulder level could induce discomfort. Mr Taylor told him that the symptoms in his left shoulder were very similar to those in the right, both in their frequency and intensity.
75 Mr Hart stated that Mr Taylor presented with degenerative bilateral supraspinatus tendinopathy with partial tears. An ultrasound of the right shoulder in 2008 showed subacromial bursitis, but clinically that had resolved.
76 Mr Hart stated that Mr Taylor presented with degenerative bilateral supraspinatus tendinopathy with partial tears and :
“I consider that the changes in the supraspinatus tendons including the partial tears were degenerative disorders related to his age, but were aggravated by his work. His symptoms have improved since ceasing work and he now has recovered full mobility in both shoulders and there is no evidence of impingement.”
77 Mr Hart also stated:
“He is able to help with the household duties, but finds that if he does carry out work such as mowing the lawn or excessive gardening that his shoulders become painful. He has been advised that he should not perform any overhead activities, which is appropriate and he would also be restricted in occupations which require heavy pushing and pulling and heavy lifting. He has a limited education and this together with his age and his location, have made it difficult for him to gain alternative work.”
78 Mr Hart stated that Mr Taylor certainly had a work capacity, but was not fit to perform work which involved overhead activity, heavy lifting with his arms or repetitive pushing and pulling. He stated that Mr Taylor had now recovered full mobility in both shoulders and would be able to perform work at waist level using his upper extremities, or other work which did not involve the use of his upper extremities.
79 Mr Hart also stated that Mr Taylor’s symptoms had improved as a result of the decrease in his activities. He had a full range of movement in both shoulders, apart from a very slight restriction in forward elevation on the left, and there was no evidence of any impingement in either shoulder. His symptoms were minimal and consistent with the pathology that had been demonstrated. He concluded:
“The conditions in both shoulders are age related and are degenerative in type. His overhead work aggravated these degenerative changes. He has performed the same activity for almost 20 years without any symptoms and it was not until the degenerative changes developed that his shoulders became symptomatic.”
80 Professor Vernon Marshall examined Mr Taylor for the defendant in January 2009. He concluded that:
“ I would accept he sustained a work injury as described on the basis of his history and the physical findings, and that the effects of the injury continue to contribute to his symptoms and condition. He is not fit for full pre-injury duties but is fit for modified duties with restrictions as described and is coping with these. He has been appropriately referred for orthopaedic opinion and I believe would benefit from a short course of physiotherapy with strengthening and mobilising exercises. His symptoms are currently improving and I do not believe surgery is likely to be required, although he may need an injection to the shoulder to aid resolution. I would expect further continuing improvement and there are no biopsychosocial contributions apparent. I would accept this as a fresh injury with a significant contribution from the employment. He is not fit for pre-injury duties but has a current work capacity as described.”
81 The defendant also relied on a medico-legal report prepared by Mr S Leitl, an orthopaedic surgeon. He examined Mr Taylor on 21 September 2009. His diagnosis was of bilateral supraspinatus tears and tendonitis. His examination showed a painful arc in both shoulders and bilateral impingement signs consistent with supraspinatus tendon, a partial tear and tendonitis.
82 Mr Leitl stated that Mr Taylor had a left supraspinatus tendon partial tear and tendonitis that he considered was partly aged related and partly related to the nature of his workplace duties, particularly stacking fruit boxes to chest height. He considered that the left shoulder condition was consequential to the previous right shoulder injury and that no separate claim for the left shoulder injury should be made.
83 Mr Leitl stated that Mr Taylor’s prognosis for recovery remained guarded because of the known history of rotator cuff tendonitis and tears to produce ongoing symptoms.
Submissions
84 Mr Taylor relied on the effect of the shoulder injuries on Mr Taylor in causing his inability to work with a resultant loss of purpose in life. His day to day activities were restricted. There was pathology in both shoulders and he had the same condition in both shoulders. The radiology and MRIs performed provided objective evidence of that. No further treatment was available to him. He was taking the only medication that he could. He had accurately described his condition and had not exaggerated. Further improvement of his condition was unlikely.
85 The defendant made detailed submissions about Mr Taylor’s condition before and after the injuries and submitted that, while there were some modifications in what he could do, they were not significant. He was still able to carry out most of the tasks that he had before the injury. The consequences of the lower back injury had to be separated out. The consequences to his left and right shoulders had to be considered separately. The medical reports suggested that his condition was attributable to degeneration caused by ageing. They also suggested that his pain was minor and that he had few symptoms. Mr Taylor’s condition had improved since his retirement, He is no longer doing much lifting.
Consideration of submissions
86 I have to consider whether first, the right shoulder injury and, secondly, the left shoulder injury are each a “serious injury”.
87 Section 134AB(38)(c) of the Act provides that an impairment or loss of body function is not to be held to be serious unless the pain and suffering consequence, is, when judged by comparison with other cases in the range of possible impairments or loss of body function, as the case may be, fairly described as being more than significant or marked and as being at least very considerable.
88 The assessment of Mr Taylor’s injuries against the statutory test is to be made at the time the application is heard by the Court.
89 The plaintiff bears the onus of establishing that the injuries on which he relies satisfy the statutory test.
90 It was not disputed that Mr Taylor had suffered workplace injuries to both his shoulders. The issue was how considerable those injuries were.
91 Whether or not an injury satisfies the statutory test is largely a matter of impression and value judgment. In Stijepic v One Force Group Aust Pty Ltd, Ashley JA stated:
“…The emphasis in s134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases that do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[13]
[13][2009] VSCA 181 at [42]
92 In Haden Engineering Pty Ltd v McKinnon,[14] Maxwell P stated that in respect of pain and suffering consequences, the Court must assess the intensity of the pain, which the plaintiff suffers by reference to what he said and did about the pain, what his doctor said and did and what the objective evidence said about the disabling effect of the pain.
[14](2010) 31 VR 1 at [12]
93 In Kelso v Tatiara Meat Co Pty Ltd, Dodds-Streeton JA stated:
“…The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[15]
[15](2007) 17 VR 592, 629 [199]
94 Mr Taylor has established that he has suffered bilateral rotator cuff tears and tendonopathy and tears in both supraspinatus tendons. The MRIs and radiology support this conclusion.
95 I accept the reliability of Mr Taylor’s evidence about the nature of the pain that he suffers. He appeared a truthful witness, who did not exaggerate his pain. The evidence suggests that he attempted to put up with his pain. By way of example, Mr Taylor still sought to obtain work despite the discomfort that it caused him. That aspect of Mr Taylor’s character may explain why some of the medico-legal doctors, who only saw him on one occasion, placed emphasis on the fact that he did not express anxiety or discomfort about his pain.
96 While I have taken that medical evidence into account, I prefer the evidence of Mr Taylor as to the extent of his pain and restrictions.
97 Mr Taylor has lived a simple life centred on his work, family and his home, including his vegetable garden and activities such as fishing and camping with his son. Like his work, most of these activities are manual and involve the frequent use of his arms and shoulders. Restrictions in his ability to use his arms and shoulder are more significant for Mr Taylor than for a person living a more sedentary lifestyle.
98 Mr Taylor can continue to carry out most of his domestic and recreational activities, but in a more restricted manner. He has reduced the size of his vegetable garden and he is limited in the manner in which he can fish and he cannot drive a car for more than a hour or two.
99 None of the doctors gave oral evidence and I must make findings after taking into account their written reports. There was a considerable disparity between Mr Taylor’s evidence of the pain that he suffers and the descriptions of that pain in a number of the medical reports.
100 I consider Mr Taylor’s own evidence is of particular importance. As I have indicated above, I accept him as a witness of truth. I accept his evidence of the consequences for him of the injuries to both his shoulders.
101 I consider the evidence of Mr Taylor’s treating general practitioner, Dr Lee, whom he continues to see on a regular basis, is significant. Dr Lee concluded that Mr Taylor has a permanent condition, that he will have some ongoing pain in his shoulders most of the time and it will flare up with any prolonged use of his arms. Such activity will cause swelling and pain in the shoulder joints and bursae for up to a week afterwards. He carries the risk of further tendon tears.
102 The reports of Mr Chew, who treated Mr Taylor on a number of occasions, are also of significance. They provide limited support for the conclusion that either of Mr Taylor’s shoulder injuries is very considerable. He considered that Mr Taylor’s symptoms were not severe enough to consider an operation. However, he did state that Mr Taylor would continue to have problems with his shoulders if he has to do any heavy lifting, particularly above shoulder or chest height.
103 The evidence does not support a finding that the back injury, that Mr Taylor suffered some years ago, contributes to his shoulder pain.
104 I am required to make separate findings about the extent of the injury that Mr Taylor has suffered to each shoulder. Neither party suggested that I should aggregate the injuries for the purpose of considering them. I will first deal with the right shoulder.
105 I find that Mr Taylor has and will have, pain in his right shoulder, if he uses it or uses his arms above shoulder height. This fact restricts Mr Taylor in a range of activities such as lifting objects, or domestic activities such as gardening.
106 Mr Taylor cannot work because of the right shoulder. All of his work has been manual in nature, but it now not available him. His work provided him with one of the purposes of his life.
107 Mr Taylor regularly takes Panamax for the pain in his shoulders. While it can be obtained without a prescription, it is the only medication that is suitable for him in view of his ulcer. No other form of medical treatment has been suggested to him.
108 Mr Taylor’s sleep is interrupted as he finds it difficult to rest on either his right or left shoulders. His inability to obtain an uninterrupted nights sleep leaves him tired the next day and is very significant.
109 The injury to his right shoulder is permanent and may worsen. He is at risk of tendon rupture if he falls on either arm.
110 I will next consider the evidence in respect of Mr Taylor’s left shoulder.
111 The medical evidence suggests that the condition of his right shoulder caused Mr Taylor more trouble than the left. However, activities such as lifting and driving, to name, two require the use of both shoulders. Mr Leitl considered that the injury to his left shoulder was consequential on that to his right shoulder. Mr Taylor’s evidence was that he may have used the left shoulder at work more to compensate for the pain in his right shoulder.
112 The evidence establishes that the injury to Mr Taylor’s left shoulder causes him pain. It interferes with his sleep if he lies on his left shoulder while trying to fall asleep. He cannot use his left shoulder for prolonged periods or by lifting his arm above shoulder level. He is restricted in the domestic and recreational activities that he is accustomed to perform. He is unable to work and no longer derives a purpose in life from working.
113 I have taken into account that many of the medical opinions, including Mr Chew’s, conclude that Mr Taylor’s symptoms and discomfort from his shoulder injuries were minor. However, the matters I have discussed above, which are found in Mr Taylor’s evidence, are significant restrictions on the life of a 64 year old man whose entire life has involved activities requiring the use of his arms and shoulders. In the normal course, Mr Taylor could have reasonably have expected to enjoy a retirement, after many years of work, which was not greatly affected by significant pain from work related injuries.
114 Mr Taylor has proved that the pain and suffering consequences of each of the shoulder injuries are, when judged by comparison with other cases in the range of impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
115 The injuries to Mr Taylor’s shoulders and their effect will continue for the foreseeable future.
116 I grant Mr Michael Taylor leave to bring proceedings at common law to recover damages for pain and suffering in respect of:
(a) an injury to his left shoulder;
(b) an injury to his right shoulder;
arising out of and in the course of his employment and occurring after 20 October 2009.
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