Teal v Victorian WorkCover Authority
[2015] VCC 536
•7 May 2015
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04409
| COLIN LESLIE TEAL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 30 April 2015 | |
DATE OF JUDGMENT: | 7 May 2015 | |
CASE MAY BE CITED AS: | Teal v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 536 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Industrial accident – injury to non-dominant left shoulder – “serious injury” – plaintiff employed as truck driver – return to full-time work – extent of pain and suffering consequences
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Walters QC with Mr K Mueller | Ryan Carlisle Thomas |
| For the Defendant | Mr P Scanlon QC with Ms F Ryan | IDP Lawyers |
HIS HONOUR:
Introduction
1 Colin Teal is a 56-year-old truck driver who lives with his wife, Rhonda Crawford, in Wendouree. He has been a truck driver most of his working life after initially working for a short time as a steel fabricator following completion of an apprenticeship in boiler-making.
2 In 2007 he was doing interstate heavy haulage for Logan Contracting Pty Ltd (“the employer”). This work involved carting hay and general freight to various locations in southern and eastern Australia. This work involved a degree of manual handling in addition to the long hours and the usual stresses associated with long-distance driving.
3 In March 2008 the plaintiff suffered what is described as a shoulder strain when he slipped when climbing into his truck. He required minor chiropractic treatment, but the condition settled down. He then described an incident occurring on 6 April 2008 when he sustained a further injury to his left shoulder when lifting a large and heavy tarpaulin. It is this later injury upon which the present application relies.
4 The plaintiff seeks leave in accordance with the provisions of s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence proceedings to recover damages for pain and suffering on the basis that the injury sustained by him on 6 April 2008 is a “serious injury”.
5 Mr Teal relies upon the definition of serious injury set out in paragraph (a) of s134AB(37) of the Act. He identifies the body function said to be lost or impaired as the left upper limb.
6 The medical evidence in this case is not controversial, with the defendant accepting that the plaintiff sustained a rupture of the supraspinatus tendon in the left rotator cuff which required surgical repair performed in May 2008.
7 The defendant puts in issue the extent of pain and suffering consequences suffered by the plaintiff as the single issue for determination in this application. There is no attack on the plaintiff’s level of motivation or indeed his general credibility. The defendant noted in particular that the plaintiff had returned to full-time truck driving, working up to 60 hours per week, as being inconsistent with pain and suffering consequences of an injury sufficient to satisfy the statutory test.
The evidence
8 The plaintiff relied upon affidavits he had sworn on 9 May 2014 and 18 April 2014 together with an affidavit sworn by his wife, Rhonda Crawford, on 5 March 2015.[1] He additionally relied upon a number of medical reports from his general practitioner Dr Muthurajah, the treating orthopaedic surgeon Mr Csongvay, two physiotherapists, radiological studies, and medico-legal reports recently prepared by orthopaedic surgeons Mr Thomas Kossmann and Mr Roger Westh.
[1]Exhibit A, pages 6–17
9 The defendant tendered into evidence a medico-legal opinion from Mr Brendan Dooley prepared in 2011, and extracts from the reports obtained from the occupational rehabilitation provider in 2008.
10 The plaintiff was the only witness required for cross-examination, and the issues addressed by Mr Scanlon QC, who appeared with Ms Ryan for the defendant, were succinctly and skilfully dealt with.
11 The substance of the plaintiff’s affidavit material can be briefly summarised as follows:
· He is 56 years of age, and married his present wife in 2009. He has three adult children.
· From the age of 22 he has worked full-time as a truck driver, and commenced working for the employer in approximately 2007 driving heavy haulage vehicles interstate, carting hay and general freight.
· His general health was good, although he has had some back soreness and right leg soreness over the years.
· In March 2008 he suffered a strain injury to his non-dominant left shoulder when he slipped whilst climbing into the truck. This required “a couple of sessions with a chiropractor”.[2]
[2]Exhibit A, page 7[6]
· He suffered the injury which is the subject of this application on Sunday, 6 April 2008, whilst lifting a tarpaulin used to cover a load on the truck “in a clean and jerk fashion”.[3] He felt something in the shoulder give way, and felt severe pain.
[3]Exhibit A, page 7[7]
· Following the incident the plaintiff tried to continue with his work, but on the following day had to arrange for another driver and truck to take over his load. He attended the Ballarat Base Hospital, where x‑rays were taken and a physiotherapist consulted.
· He remained unable to work, and saw Dr Muthurajah in Ballarat, who diagnosed a torn tendon in his shoulder. An ultrasound was taken on 18 April 2008 which revealed a full thickness tear of the supraspinatus tendon.[4] He had a cortisone injection without relief, and was then referred by Dr Muthurajah to Mr Steven Csongvay, orthopaedic surgeon.
[4]Exhibit A, page 36
· On 21 May 2008 Mr Csongvay performed surgery on the shoulder.
· The plaintiff was off work for several weeks, and after returning to work had trouble with his left shoulder associated with overhead activities. He began to develop right shoulder and neck soreness as a consequence, and continued to work on restricted duties over the following 18 months. He had ongoing physiotherapy during that period.
· His ongoing symptoms led Dr Muthurajah to refer him for further imaging in May 2009 which showed some mild degenerative changes in the lower cervical spine but “no evidence of a focal disc protrusion nor of neural compression”.[5] During late 2008 and early 2009 the plaintiff continued to suffer pain and restrictions, particularly with overhead tasks at work, and had some further time off work.
[5]Exhibit A, page 35
· He was reviewed by Mr Csongvay in November 2009, at which time he was “continuing to suffer from shoulder pain that was made worse by having to perform overhead tasks at work, including tying and throwing tarps”.[6]
[6]Exhibit A, page 9[16]
· The plaintiff sought alternative employment as a tip-truck driver in March 2009, working a short period with Mahonys Transport. In April or May 2009 he commenced work for WL & LK Fay in Skipton as a tip-truck driver, and has continued with this work.
· With the present work there are still aspects which cause problems with his left shoulder including sweeping or hosing the truck, and difficulty driving a manual truck.
· The plaintiff was not having active treatment at the time he swore his first affidavit in May 2014, and avoids taking medication because of the risks of drowsiness when driving. He sometimes takes pain medication on the weekend, or simply puts up with the pain.
12 The more recent affidavit sworn by the plaintiff on 18 April 2015[7] makes some corrections to material in the earlier affidavit. In particular, the change of employment from the employer occurred in March 2010, not in the previous year. The plaintiff commenced his current employment, which involves doing grain haulage for WL & LK Fay, in July 2010.[8]
[7]Exhibit A, pages 12A–12J
[8]Exhibit A, page 12E[15]
13 The second affidavit sworn by the plaintiff also enlarges on the treatment currently being received. The plaintiff has recently commenced seeing a Dr Hossain at the Eureka Medical Centre and been prescribed Celebrex as an anti-inflammatory painkiller. The evidence suggests that the plaintiff will try this medication to see whether it produces the same effects of “making me dopey” as had the Tramadol he had earlier taken.[9]
[9]Exhibit A, page 12E[16]
14 Both affidavits sworn by the plaintiff describe impacts in terms of pain and suffering consequences flowing from his left shoulder injury. Without reciting the whole of the evidence, I regarded the following matters as generally descriptive of these consequences:
· The plaintiff continues to suffer from pain in his left shoulder every day, brought on or made worse by activities involving overhead use.[10]
[10]Exhibit A, page 10[23]
· There is restriction of movement, including moving his hand behind his back or movement overhead and performing tasks such as changing a lightbulb with his left hand. The plaintiff avoids lifting heavy objects or using power tools or ladders.[11]
[11]Exhibit A, pages 10 and 11[24]
· The plaintiff has difficulty with basic household chores such as vacuuming, sweeping, hanging washing or carrying a load of wet washing.[12]
[12]Exhibit A, page 11[28]
· The plaintiff had been a keen gardener, and now suffers soreness and tiredness when using garden tools. He fatigues easily, and takes regular breaks.[13]
[13]Exhibit A, page 11[29]
· The plaintiff has difficulty driving a manual vehicle, including a manual truck, to the extent that he is restricted to driving an automatic car and an automatic tip-truck. He had previously enjoyed driving manual vehicles, both car and truck, of which he says “I regarded that as real driving. I feel that driving an automatic is a lazy way to drive and not nearly as enjoyable.”[14]
[14]Exhibit A, page 12F[20]
· The plaintiff enjoyed the occasional game of social golf, and experienced difficulty swinging his golf clubs. He has given away his golf clubs and ceased that activity.[15] He has also ceased rifle shooting because of difficulty lifting the barrel when sighting. He used to enjoy hunting for deer, rabbits and foxes.[16]
[15]Exhibit A, page 12[32]
[16]Exhibit A, page 12[32]
· The plaintiff has sold a fishing boat which he used to use when living in the Cobden area near Princetown prior to sustaining his injury. With fishing generally, he describes having difficulty winding and casting a line due to his left shoulder, and difficulty pushing his boat out into the water, particularly in sea conditions.
· He describes difficulty using the shoulder with simple daily activities such as holding a newspaper in an extended position, needing to wear jackets rather than pullovers, and holding a phone to his left ear (he gave evidence of having hearing difficulties with his right ear).[17]
[17]Exhibit A, page 12[34]
15 The plaintiff has managed to obtain alternative employment, albeit driving an automatic vehicle, which he regards as less enjoyable than a manual one, and driving in areas which rarely include long-distance or interstate driving, which he used to find interesting and enjoyable. The affidavits refer to his pre-injury employment involving very long hours, “usually in excess of 60 hours and not infrequently in excess of 70 hours per week. I did so in order to earn a reasonable income.”[18]
[18]Exhibit A, page 12C[9]
16 The affidavit sworn by Rhonda Crawford provides considerable support for the change in the plaintiff’s activity levels following his shoulder injury in 2008. There was no challenge made to the material set out in her affidavit, and she was not required for cross-examination.
17 The cross-examination of the plaintiff, though short in duration, was skilful and incisive. Given that the sole issue in dispute in this case concerns the extent of pain and suffering consequences, I found the following passages of evidence elicited in cross-examination to be of relevance to my decision:
· The plaintiff is right-hand dominant and would use his right hand to wind down a tarpaulin in his present employment.[19]
[19]Transcript (“T”) 11, Line (“L”) 3–10
· The current employment involves driving 60 hours per week, but not so much interstate. It involves transporting grain.[20]
[20]T11, L11–17
· The plaintiff’s wife does not work, but it is still necessary for the plaintiff to do the vacuuming, the sweeping, and hanging out washing. He does not miss not being able to do the vacuuming or the sweeping.[21]
[21]T11, L27–T12, L5
· The plaintiff was cross-examined in relation to golf at the Cobden Golf Course. His knowledge of the course was sufficient for him to identify it as a nine-hole course, but otherwise was lacking in considerable detail, stating that his best score for nine holes would be about 77.[22]
[22]T13, L17–19
· The plaintiff agreed that he would probably play five or six times per month prior to being injured: “It was a social hit.”[23]
[23]T13, L20–26
· In relation to shooting, the plaintiff owned a high-powered rifle and had a licence. He would hold the rifle into his right shoulder so there would be no impact upon the left shoulder with shooting. The left arm would hold the barrel.[24]
[24]T13, L30–T14, L6
· The plaintiff’s boat was a 14-foot-6 Stacer. Launching and retrieving the boat was a little bit difficult in the ocean. The plaintiff had not been fishing since his accident.[25]
[25]T14, L7–25
· The plaintiff had obtained a hydraulic wood-splitter: “Anyone who hasn’t got one, you’d wonder why they haven’t got one.” He got one because of his shoulder. He would prefer to be splitting than using a wood-splitter: “You can do three or four times as much manually.”[26]
[26]T16, L14–25
· A description of his return to work by August 2008, “that things were going splendidly,” was still applicable to the work the plaintiff is now doing.[27]
· He is still doing 60 hours per week, and agreed that by November 2008 he was back performing pre-injury duties including overtime.[28]
[27]T17, L29–T18, L3
[28]T18, L8–18
18 The plaintiff was briefly re‑examined and gave further evidence as follows:
· He had tried shooting once after the injury, but could not elevate the barrel to offer a good shot at the target. He had let his gun licence lapse after 12 months.[29]
[29]T18, L31–T19, L11
· He was not doing so much interstate driving now, which he described as “it’s nowhere near as enjoyable”.[30]
· As to the future of his condition, the plaintiff described it as “not real good ... I find it harder to get mobile every day with it.”[31]
[30]T19, L14–22
[31]T19, L31–T20, L3
19 There was further short evidence directed towards my questions concerning the plaintiff’s hobby of shooting and his current work routine. I will refer further to these matters in my analysis.
The medical evidence
20 The medical evidence in this case was truly not in dispute. Mr Scanlon, on behalf of the defendant, conceded that the opinion given by Mr Dooley, following an examination of the plaintiff in October 2011, was effectively too dated to be of any real use in the task presently faced by the court. Indeed, Mr Scanlon’s only real comment on the medical evidence was directed towards the two opinions provided by Mr Kossmann in May and November 2014.[32] Mr Scanlon submitted that I should exercise care with Mr Kossmann’s opinions, as his opinion following the May 2014 examination was that the plaintiff’s prognosis was “guarded to poor”.[33] In the report following the second examination in November 2014 Mr Kossmann, with limited further material, described the plaintiff’s prognosis as “guarded”.[34]
[32]Exhibit A, pages 37–49
[33]Exhibit A, page 40
[34]Exhibit A, page 46
21 The most recent orthopaedic report is that of Mr Roger Westh, orthopaedic surgeon, who examined the plaintiff on 24 March 2015. Mr Westh’s opinion can be summarised as follows:
“Mr Teal has had an ongoing aching discomfort in his left shoulder with restricted use of his shoulder and experiences particularly activity-related pain ... He is limited with heavy lifting and limited with overhead use of his left arm and to a lesser extent with his right arm. This incapacity will continue for the foreseeable future. He has been able to resume work as a truck driver; however, there are limitations, and he cannot do any heavy lifting or work which involves overhead use of the left arm. He has also changed to driving an automatic vehicle. ... He does have the capacity to perform suitable employment and is currently working as a truck driver. ... He no longer participates in his previous recreational pursuits of golfing, shooting and fishing. At present, no specific treatment is required and there is certainly no indication of any further surgical treatment. ... Regarding prognosis, he will continue to experience particularly activity-related pain and reduced mobility in his left shoulder. He may experience flare-ups from time to time which would settle with appropriate medications and possibly physiotherapy.[35]”
[35]Exhibit A, page 52
22 There was no argument advanced in relation to the treatment given to the plaintiff during 2008 and 2009, and no challenge raised to the fact that he avoids taking medication during the working week due to concerns about an adverse effect on his abilities as a truck driver.
23 I should also comment that the opinions in both reports provided by Mr Kossmann, and indeed the earlier opinion from Mr Dooley in 2011, are quite consistent with the general description of the plaintiff’s condition as one of ongoing pain and discomfort in the left shoulder with activity-related flare-ups. I see no real inconsistency between any of the medical material put into evidence in this case.
Analysis
24 There was no attack made on the credibility of the plaintiff, consistent with my observations of him whilst he was giving evidence. I accept him to be a truthful witness who did his best to give an accurate picture of the effects he has suffered and continues to suffer as a result of his left shoulder injury.
25 His own description of the ongoing pain suffered by him is described in his first affidavit as follows:
“I continue to suffer from pain in my left shoulder every day. I often experience underlying discomfort in my shoulder and pain that is brought on, or made worse, by activities involving raising my arm over the level of my head and shoulder. For example, I experience aching, pain and fatigue in my left shoulder as a result of holding a phone to my ear with my left hand for more than a short period of time.”[36]
[36]Exhibit A, page 10[23]
26 In the second affidavit, sworn shortly before the hearing, the plaintiff deposes as follows:
“I would best describe my left shoulder pain as like a nagging toothache which just never goes away completely. The pain varies and is quite often severe, particularly with cold weather. The Panadol appears to take the edge off the pain but it is always there and never goes away completely. As advised by my doctors I try to keep the shoulder mobile by doing as much as I can with my left arm below shoulder level. If I do not do so I find that the shoulder tends to freeze and the ache becomes worse. ... The shoulder pain prevents me from sleeping well. I estimate that three nights out of four I awake as a result of the pain in my left shoulder, and I am often awake for an hour or so, and indeed sometimes I am not able to get back to sleep at all, and get up much earlier than I otherwise would. I do not want to take any sleeping tablets because it would affect my capacity to concentrate at work. Less frequently I suffer from frozen shoulder which sometimes gets so bad I need to pick up my left arm with my right and move it for about ten or fifteen minutes until it starts to function normally again. This can last for ten or fifteen minutes and is a very unpleasant sensation.”[37]
[37]Exhibit A, pages 12H and I at [26], [27] and [28]
27 The plaintiff’s description of his level of pain and restriction of use of his left shoulder is consistent with his evidence both in affidavit and in the witness box concerning his cessation of recreational activities including shooting, use of the fishing boat and golf.
28 As against this, he has managed to return to work as a truck driver, albeit doing a different type of driving, but still managing to work 60 hours per week. As the plaintiff accepted in cross-examination, on 14 August 2008 he advised the rehabilitation provider “that he felt things were going splendidly”.[38] Further comments of a similar nature were recorded by the rehabilitation provider on 4 September 2008 and 19 November 2008.[39]
[38]Exhibit 1, page 90
[39]Exhibit 1, pages 95 and 107
29 Additionally, Dr Muthurajah had assessed him as meeting the relevant medical criteria to enable him to drive to private vehicle standards as early as 21 September 2008.[40]
[40]Exhibit 2, page 137
30 I have considered the most recent opinion of the treating surgeon Mr Csongvay, albeit one written to the treating general practitioner towards the end of 2009. This was some 18 months following the rotator cuff repair. In that letter, Mr Csongvay wrote to Dr Muthurajah:
“My strong recommendation is that Colin stays away from having to do up tarps, having to tie up ropes and also having to throw ropes, meaning that he could continue to drive. He could do activities at shoulder or chest level, but no strenuous activities above his head. I believe that if he continues to be pushed to do these activities there is a good chance that his left shoulder will continue to deteriorate and it may mean significant loss of function and disability in that arm.
At this stage I do not believe that the problem is irreversible but he needs to have modified duties and to get a job on an alternative truck to minimise further aggravating of his left shoulder.”[41]
[41]Exhibit A, pages 31–32
31 The plaintiff still works long hours, and there is no evidence to suggest that he will cease this activity in the foreseeable future. His working life, and indeed his recreational life, is now affected by pain and loss of function in the left shoulder, which I accept on the balance of probabilities is more likely present at least on a noticeable level on a daily basis. He is unable to take medication to alleviate his symptoms due to its potential impact on his employment as a driver.
32 I accept that the shoulder pain impacts on his sleep and impacts on his ability to assist with household domestic activities. Although the loss of an activity such as ironing or vacuuming is probably not a personal loss to the plaintiff, it nevertheless impacts on his ability to perform activities which he used to perform prior to sustaining his injury.
33 I accept that he has lost his recreational activities of shooting, fishing and social golf. Clearly the plaintiff’s underlying skill as a golfer cannot detract from the fact that he has lost this recreational activity in which he used to participate several times per month.
34 The pain, restriction of use and interference with general day-to-day activities as described by the plaintiff is, in my view, entirely consistent with all of the medical opinions, particularly the most recent orthopaedic opinion of Mr Westh.
35 In my assessment, the fact that the pain is described as always present or at the very least experienced on a daily basis, and is aggravated by simple activities such as use of the left arm in an elevated position, must be regarded as at least significant. If I then take into account the fact that this plaintiff, described by his treating surgeon as “the type of person to give his maximum at whatever work he does”, has managed to return to work, albeit driving an automatic truck on shorter routes in less enjoyable conditions, this elevates the level of interference caused to his day-to-day life by reason of the shoulder.
36 I accept also that the plaintiff’s affidavit material, describing an estimated three nights out of four when the shoulder pain causes him to wake for an hour or so and prevents him from obtaining restful sleep, is descriptive of a most significant consequence of his injury, particularly for a person who is working 60 hours per week.
37 I further accept the plaintiff’s evidence that his pre-injury recreational activities of shooting, fishing and golf, have been lost, to the extent that he has disposed of his golf clubs, allowed his shooter’s licence to lapse, and sold his fishing boat. These losses further elevate the seriousness of the consequences suffered by him.
38 In so far as I am required to do so, I have taken into account the plaintiff’s evidence concerning what I regard as transient problems affecting the left knee and occasional recurrent back problems. I also note the plaintiff’s evidence that he has had “some coronary issues over the years and well before the date of the present injury[42]”. I note he continues treatment which has not impacted on his capacity to work. I am fortified in my conclusion that pre-existing unrelated health conditions had no great effect on the plaintiff’s ability to work or engage in other activities, largely on the basis of the corroborative evidence provided by his wife, who had known the plaintiff for a very long time prior to the commencement of their relationship in 2006.
[42]Exhibit A, page 12H [25]
39 In relation to the specific pain and suffering consequences which I am required to evaluate in this case, I am assisted by the authorities of Haden Engineering Pty Ltd v McKinnon[43] and Dwyer v Calco Timbers Pty Ltd (No 2).[44]
[43][2010] VSCA 69, especially at [9]–[17]
[44][2008] VSCA 260
40 The legislation requires the plaintiff to satisfy me that when properly assessed, taking into account a range of other or possible impairments or losses of function, I must be affirmatively satisfied that the consequences in terms of pain and suffering experienced by the plaintiff can properly be described as at least very considerable, in that they are more than significant or marked. In the present case I am satisfied that he has been reduced to doing work which he finds less satisfying than his pre-injury occupation, suffers pain, albeit of a non-disabling nature, at least on a daily basis, suffers an interference with his sleep on a regular basis, and has been forced to cease at least three regular recreational activities which he had previously enjoyed.
41 In my assessment, the consequences in terms of pain and suffering experienced by the plaintiff can properly be described as at least very considerable.
Conclusion
42 I propose to grant leave to the plaintiff to commence common law proceedings for pain and suffering in accordance with s134AB(16)(b) of the Act.
43 I will hear the parties in relation to formal orders and costs.
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