Toskovski v LC Dysons Bus Services Pty Ltd
[2017] VCC 243
•17 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-01299
| DEJAN TOSKOVSKI | Plaintiff |
| v | |
| LC DYSONS BUS SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2017 and 7 March 2017 | |
DATE OF JUDGMENT: | 17 March 2017 | |
CASE MAY BE CITED AS: | Toskovski v LC Dysons Bus Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 243 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Bilateral shoulder rotator cuff syndrome
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Lu v Mediterranean Shoes (2000) 1 VR 511;
Judgment: Application Dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | L.N. Christie & Co |
| For the Defendant | Ms J M Forbes QC with Ms K L Bradey | IDP Lawyers |
HIS HONOUR:
1 This is an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (the Act) by the plaintiff to commence proceedings for damages in respect of the pain and suffering consequences of an injury suffered by him during the course of his employment as a bus driver with LC Dysons Bus Services Pty Ltd.
2 The injury relied upon is bilateral shoulder rotator cuff syndrome. The body function relied upon by the plaintiff is manual dexterity involving both shoulders. It is the case for the plaintiff that a cause of his injury was the use of both arms by him to steer buses for prolonged periods of time without adequate breaks and whilst being exposed to vibration and the effects of bumps through the steering column of the vehicle. Not all of the buses driven by the plaintiff were fitted with power steering.
3 In the circumstances of this matter, I accept that the injuries to the left and right shoulder relied on by the plaintiff arise out of one incident, namely, the driving of buses, and that the one body function of manual dexterity may be impaired by the injury.[1]
[1]See Lu v Mediterranean Shoes (2000) 1 VR 511
4 The plaintiff was born in Macedonia on 19 May 1973 and is now aged 43. He is married and has two children aged 8 and 9. He migrated with his family to Australia aged 13 and completed Year 12 at Thomastown Secondary College and an electronics course at RMIT. After completing his education he worked as a car detailer, taxi driver and driving instructor. He commenced work as a bus driver with the defendant in December 2007.
5 On 12 July 2010, the plaintiff attended his general practitioner, Mr Ranjith Hettiarachi, complaining of pain in both shoulders, with more pain in the right shoulder, and stated that he drove:
“a passenger bus all through the day. He also stated that he felt strong vibrations transmitted into his upper limbs and shoulders throughout the period of driving.”[2]
[2]Plaintiff’s Court Book (“PCB”) 52
6 An ultrasound of the right shoulder on 16 July 2010 revealed tendinopathy in the subscapularis, a partial thickness tear of the supraspinatus and subacromial spurring in the region of the acromioclavicular joint.[3]
[3]PCB 70
7 An ultrasound of the left shoulder on 11 August 2010 was normal.
8 On 29 July 2010, the plaintiff was certified as unfit for driving duties by his general practitioner.
9 A Workers Compensation claim was accepted by the defendant on 6 August 2010.
10 In December 2010, the plaintiff returned to work on light duties of varying hours. On 24 January 2012 his employment was terminated and he has not worked since that date.
11 In support of the application the plaintiff tendered three affidavits dated 24 November 2014, 9 March 2016 and 17 February 2017 respectively. He attended the hearing of the application, gave evidence and was cross-examined. No other oral evidence was given and the parties relied on the medical and associated reports tendered by each of them.
12 Following the initial ultrasound investigations, the plaintiff was referred to Mr Nathan Elijh, an occupational therapist, on 3 September 2010 by his general practitioner and underwent regular therapy until 29 April 2011.[4] The therapy included exercises, a graduated strengthening program and relaxation training to ease muscle tension and guarding.[5]
[4]PCB 60A
[5]PCB 60F
13 The plaintiff’s general practitioner also referred him to the Orthopaedic Outpatients Clinic at the Austin Hospital in March 2011.[6] An examination of the plaintiff on 31 March 2011 revealed:
“On physical examination today right shoulder movements were at full range. Flexion and abduction were full range with mild impingement arc. Right shoulder internal rotation was to T12 and external rotation to 60°. The glenohumeral joint movements were full range and non-painful. Strength testing of the rotator cuff showed global weakness in all rotator cuff muscles limited by pain. Impingement test was negative reproducing only mild generalised pain. On palpation there was global tenderness along the clavicle shoulder and scapular region as well as the cervical region. On cervical active range of movement there was pain at end of range on all movement and cervical spine palpation revealed generalised tenderness.
Dejan was also reviewed today by Mr Roger Westh, orthopaedic surgeon. Clinically he presents with good shoulder range of movement and generalised pain and global weakness and tenderness. The source of his condition remains unclear and somewhat perplexing. Possible sources may be from cervical spine or an inflammatory condition. We have therefore ordered some blood tests as well as cervical x‑ray and will review him following these tests. I will keep you informed of his progress.”[7]
[6]PCB 54
[7]Defendant’s Court Book (“DCB”) 51L
14 A further review was conducted on 21 April 2011 at the Austin Hospital and the following conclusion was reported:
“Mr Toskovski was again reviewed by Mr Roger Westh, orthopaedic surgeon. Overall he presents with generalised pain, global weakness and global tenderness as well as features consistent with atypical illness behaviour. Currently there appears to be no obvious shoulder pathology.”[8]
[8]DCB 51M
15 On 19 February 2012, the plaintiff was again reviewed at the Austin Hospital and the following conclusion was reported:
“On physical examination he had full pain free range of cervical spine movement and shoulder movement was also full range and pain free; however the patient did produce abnormal movement pattern where he was unable to keep the elbow straight. Strength testing of rotator cuff showed full strength with no significant pain or weakness bilaterally. Impingement test was negative. On palpation there was tenderness of the cervical spine as well as some trigger points in the upper trapezius muscles.
From an orthopaedic point of view we are unable to identify any organic cause for the shoulder or cervical spine.”[9]
[9]DCB 51Q
16 An x‑ray and ultrasound of the left shoulder on 22 December 2011 revealed a minor degree of tendinopathy in relation to the distal subscapularis without tear.[10] An x‑ray and ultrasound of the right shoulder on 12 January 2012 was normal[11] and a further ultrasound of the right shoulder on 8 February 2012 revealed that the rotator cuff tendons were intact.
[10]PCB 72
[11]DCB 52
17 The evidence, therefore, discloses that as at 8 February 2012 the plaintiff’s right shoulder injury appeared to have healed and there was a minor degree of tendinopathy in the left shoulder. The plaintiff was examined by Mr Peter Kudelka, an orthopaedic surgeon, on 17 October 2011 and again on 3 June 2014. Mr Kudelka was unable to find any orthopaedic explanation for the plaintiff’s ongoing symptoms of pain, weakness and restricted movement.[12]
[12]DCB 6
18 The plaintiff was also examined by Mr Michael Shannon, orthopaedic surgeon, on 1 October 2015. He concluded that there was no evidence of ongoing physical injury.[13]
[13]DCB 18
19 Following this, the plaintiff underwent an MRI scan of his left and right shoulders on 22 April 2016. The right shoulder was normal[14] and the left shoulder disclosed:
“Minor subacromial subdeltoid bursitis. There is a low grade tendinosis of supraspinatus and the anterior of infraspinatus tendon and subscapularis tendon. SLAP tear.”[15]
[14]PCB 73A
[15]PCB 73C
20 Mr Shannon examined the plaintiff again on 8 December 2016 with the assistance of the MRI scan conducted in April 2016. He concluded:
“MRI scans have shown quite minor degenerative change which would be regarded as within normal limits in the working population.”[16]
[16]DCB 20C
21 In support of the application, the plaintiff relies on the diagnosis of Dr V Karlov, a consultant physician, that he suffers from:
“(ii) ACJ disease bilaterally;
(iii) subscapularis tendonitis of right shoulder;
(iv) partial tear of the supraspinatus and subscapularis.”[17]
[17]PCB 77C
22 In my opinion, this diagnosis is not supported by the results of the MRI scan of the plaintiff’s shoulders conducted in April 2016. The diagnosis is also, in part, contradicted by the opinions of Mr Kudelka and Mr Shannon, who are both orthopaedic surgeons.
23 I am also satisfied that the results of the MRI scan and the opinions of Mr Kudelka and Mr Shannon contradict the opinion of the plaintiff’s general practitioner, Dr Nassios, that he is suffering from bilateral shoulder rotator cuff syndrome.[18]
[18]PCB 49
24 I am satisfied that the opinion of Mr Shannon arrived at following his examination of the plaintiff on 8 December 2016 accurately reflects the current state of the plaintiff’s injury. The plaintiff is suffering from mild degeneration in his left shoulder and his right shoulder discloses no significant abnormality.
25 Whilst the plaintiff has continued to report to medical practitioners significant symptoms of pain and weakness in both shoulders, the organic injury that he is suffering from does not support that symptomology. The plaintiff has not undergone any surgical intervention in respect of his injury and is not currently in receipt of any prescription medication to treat it.
26 The plaintiff has identified the following consequences of the injury that he relies upon in support of the application:
(i)constant ongoing pain in both shoulders;
(ii)disturbed sleep;
(iii)inability to work in his garden and to carry out home maintenance;
(iv)inability to drive lengthy distances or for lengthy periods;
(v)inability to fully engage with his two young children;
(vi)inability to pursue recreational activities such as fishing;
(vii)inability to work as a bus driver or driving instructor; and
(viii)social and personal isolation with accompanying depression.
27 The plaintiff does not rely on a psychological injury and nor was it submitted on his behalf that he has developed chronic pain syndrome or other like condition by reason of his rotator cuff syndrome. Nevertheless, I accept that the pain he has experienced and its debilitating effect on him is caused by his injury, although I do not accept that he experiences constant significant pain.
28 The plaintiff states that he spends between one to two hours per day, six days per week, at the local leisure centre in the sauna, spa and hot water pool. He drives to the centre after taking his children to school. He also uses an exercise bike at home to maintain his fitness. As I observed during the hearing of the application, the plaintiff appeared to be in reasonable health and he did not appear to be experiencing any pain whilst giving his evidence.
29 He has a taxi licence and owns a taxi and administers the affairs of the business. He also owns a driving school vehicle and in my opinion he would be able to work as a driving instructor. As I have already observed, he is not in receipt of any prescribed painkilling or sleeping medication. He has travelled overseas to the United States for a wedding and to Macedonia.
30 Whilst I accept that his injury has had an adverse impact on his domestic and leisure pursuits and that his sleep may also be impaired from time to time, I do not accept the consequences of his injury can be fairly described as being more than marked or significant and as being at least very considerable.
31 In my opinion, the plaintiff has retained much of his pre injury capacity and although he may be restricted in the activities he can engage in with his children, he attends sporting events they are involved in and he drives them to school. The evidence discloses that the plaintiff’s wife maintains the family vegetable garden. He is able to drive a car in urban conditions.
32 He is suffering from what may be properly described as minor degeneration in his left shoulder and in my opinion the consequences of that injury may also be properly described as relatively minor.
33 For these reasons, the application must be refused.
34 I will hear the parties as to the appropriate form of Orders.
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