Trpkovski v Victorian WorkCover Authority
[2016] VCC 1897
•12 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-05660
| MARYANNE TRPKOVSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2016 | |
DATE OF JUDGMENT: | 12 December 2016 | |
CASE MAY BE CITED AS: | Trpkovski v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1897 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235
Judgment: Leave granted to the plaintiff to commence a proceeding at common law for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr D R Myers | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 Ms Trpkovski seeks leave to start a proceeding for damages under s134AB of the Accident Compensation Act 1985 (“the Act”). She says she has suffered a serious injury. I will deal with the legal considerations later.
Circumstances
2 Ms Trpkovski is fifty-five. Since 1999 she worked for the Epworth Freemasons Hospital as a patient services assistant in the delivery suite and post-natal ward. She did non-nursing duties for patients such as making beds, cleaning rooms and making drinks. Usually she worked the shift starting at 3.30pm and ending at 10.30pm. She worked in all 32.5 hours each week. Unlike other shifts, she worked alone. This meant she did things alone including those involving lifting and pushing.
3 On 10 October 2012, Ms Trpkovski felt significant pain in her left shoulder. She reported the injury and saw her general practitioner, Dr Mourad Alexander, on the same day. She told him her shoulder had been sore for two months. He prescribed Naprosyn, an anti-inflammatory drug, and arranged to see her again in a week’s time.
4 Ms Trpkovski did not see Dr Alexander again about her shoulder until 3 April 2013.[1] Then, he noted a painful left shoulder on abduction. He sought an x‑ray and ultrasound. The ultrasound showed a full thickness tear of the supraspinatus muscle tendon, and thickened fluid filled the subacromial bursa. The shoulder was painful on abduction on forward flexion.
[1]He saw her on 13 February 2013 for a different matter
5 Dr Alexander saw her again on 10 April 2013, now noting painful internal rotation. He discussed surgery or an injection. He saw her again on 17 and 23 April, 16 and 30 May 2013. On 17 April 2013, he injected her left shoulder with steroids which gave pain relief and improved her shoulder mobility. On 30 May 2013, she still complained of shoulder pain, so he referred her to an orthopaedic surgeon, Mr Andrew Kiellerup. In the meanwhile, on 13 April 2013, Ms Trpkovski stopped work because of the pain.
6 Mr Kiellerup saw her on 6 June 2013. At his request, a MRI scan was performed on 13 June 2013 and showed, apart from subacromial bursitis:
“Full thickness tear through the anterior margin of infraspinatus[2] (sic) with extensive bursal surface partial thickness fraying of the remaining tendon and 2.2 cm of retraction of some superior and anterior fibres. Remaining intact fibres posteriorly. The remainder of the rotator cuff is much better preserved.”
[2]The reference to the infraspinatus is a typing mistake. It should be the supraspinatus.
7 On 4 September 2013, Mr Kiellerup performed a mini open repair of the full thickness tear, subacromial bursa decompression and an acromioplasty.[3] He saw her again six times between 19 September and 6 February 2014. Helpfully, for the purposes of this case, Mr Kiellerup wrote to Dr Alexander after each appointment. On 14 November 2013, he wrote:
“Maryanne is making excellent progress after her shoulder injury. Her range of motion is very good and her pain seems well controlled.
I have given her a certificate saying that she can return to work on light duties next month. I will see her after that.”
[3]Report of Dr Alexander dated 4 May 2016
8 The clinical note for 14 November 2013 is handwritten and brief. I believe he measured two shoulder movements: abduction 90 degrees; and external rotation 30 degrees. Adding, pain as expected with a return to work on light duties on 2 December 2013.
9 On 12 December 2013, MR Kiellerup wrote to Dr Alexander:
“Maryanne is making excellent progress after her shoulder injury. She has minimal pain and is coping well at work. Her range of motion continues to improve.”
10 His clinical note says she is sleeping, taking no drugs, with abduction at 110 degrees and external rotation at 45 degrees.
11 On 6 February 2014, Mr Kiellerup saw her for the last time. He wrote:
“Maryanne continues to improve after her shoulder injury. She feels that she is ready to resume her normal duties next month. I have not arranged to review her again.”
12 I can decipher only part of his clinical note: abduction 100; and external rotation 60.
13 On 2 December 2013, she returned to work for two hours each day on light duties, gradually increasing five hours daily on light duties. Although there is no direct evidence on the point, I assume she resumed her normal duties in March 2014.
14 Ms Trpkovski next saw Dr Alexander about her left shoulder on 7 August 2014. He prescribed Celebrex.
15 In November 2014, Dr Alexander saw Ms Trpkovski again.[4] She told him of soreness in her left shoulder. He requested an ultrasound and x-ray. With the former, the supraspinatus tendon appeared abnormal (heterogeneous), leading the radiologist to suggest either a post-operative appearance or mild tendinosis. There was mild subacromial bursitis. The x-ray revealed mild enthesopathy at the left greater tuberosity, which is irrelevant for the purposes of this case.
[4]He says on 19 November but that is inconsistent with the date of ultrasound and x-ray, being 5 November.
16 Both Dr Alexander and Mr O’Brien (see below) treated the abnormality as evidence of tendinosis. Dr Alexander injected her shoulder with cortisone. Although he says in his report, dated 4 May 2016, he did not see her again, his records show subsequent visits where she speaks of shoulder soreness.
17 In all, she had about fifteen sessions of physiotherapy. It did not help. She stopped the home exercises because again, they did not help.
Present condition
18 At the moment, Ms Trpkovski works 32.5 hours each week in the same job. She does most of the tasks required, except making double beds, pushing beds, taking patients in a wheelchair, pushing a resus trolley and portacots into and out of lifts. Even making single beds is difficult but she copes if able to work at her own pace. Sometimes, she has help for this and for cleaning. She has not re-injured herself through work.
19 Financially, Ms Trpkovski must work. She has a mortgage on a large home, built with her husband shortly before he died.
20 She takes Celebrex two or three times each week[5] and Voltaren at most once each week. She resists taking drugs because of their side effects. She takes Voltaren when the pain is “more extreme”. She does so no more than once a week. Interestingly, Voltaren is available to her at work. Judging from his records, the last time Dr Alexander prescribed any drug was on 5 January 2016 when he prescribed another anti-inflammatory, Naprosyn. He stopped prescribing Voltaren on 15 September 2015 and Celebrex on 2 June 2015. However, Ms Trpkovski still takes Celebrex and says she obtained her most recent prescription in the previous week and the one before that a month earlier. There is no conflict, for the tendered records of Dr Alexander cease in Aril 2016.
[5]Probably three or four times each week according to her evidence in cross-examination: see transcript at page 17
21 In her second affidavit and oral evidence, Ms Trpkovski used the word “pain” to cover a dull ache or discomfort through to an “extremely sharp pain”. The lower level of discomfort or dull ache is always there. It becomes painful with use. At the end of her working day she feels “most of the real extreme pain”. She works from Sunday to Thursday, and on Friday and Saturday recovers.
22 Until recently, Ms Trpkovski had not been treated for some time. She had been told little more could be done. Physiotherapy finished two years ago when the Authority ended her entitlement. She cannot afford to pay for it herself. She no longer does the exercises at home suggested by her physiotherapist. At present, she takes Celebrex three or four times each week.
23 She shares her home with her two sons, the wife of one of the sons and a grand-daughter. Her daughter-in-law mops, vacuums, washes, scrubs the bathroom, washes the clothes and hangs them out. This leaves tasks Ms Trpkovski can do right handed: wiping down benches and sinks; and picking up things around the house. Now that her granddaughter is eighteen months’ old and weighs 12 kilograms, she is careful about picking her up for fear of hurting her shoulder.
24 There are no formal restrictions on the work Ms Trpkovski can do in her job. Her fellow workers know of her injury, are sympathetic and help her frequently.
25 After her shift, it can take her up to two hours to go to sleep because her shoulder is painful and throbbing. Once asleep, if she rolls onto her left side, the pain wakes her and again, she struggles to go back to sleep. She wakes tired and looks forward to her days off to rest and catch up with her sleep.
26 Ms Trpkovski is house proud, both inside and outside. She gardens much less and this was a source of enjoyment. She cannot plant, weed, prune or trim. Now her sons do most of the gardening. She can admire her garden but for those who enjoy gardening, much of the enjoyment involves the actual gardening.
27 Most normal acts cause her pain: carrying shopping bags; her handbag; driving; bathing, and dressing. She washes her hair once a week, which is less often than before her injury. The act of drying and brushing her hair requires both hands elevated above shoulder height. This is painful for her left shoulder. It upsets her that she cannot wash her hair more often.
28 Recently, one of Ms Trpkovski’s sons, Louie, swore an affidavit. He was living at home before October 2012 and has since. His confirmation of much of what his mother says is unnecessary: I do not doubt her truthfulness. He does give insights into his mother. At paragraph [7], he says:
“We all chip in to assist because Mum still works nearly full time and she is a wreck when she comes home. She gives everything at work because she loves her job but more importantly she wants to make sure that she can keep it for as long as she can in order to make ends meet … .”
29 At paragraph [17], he says:
“… I have seen mum struggle with sleep because of her shoulder pain and I have seen her go to work when she has struggled to get herself out of bed due to a bad night.”
Medical evidence
30 The medical evidence falls into groups. There are the reports of Dr Alexander and reports and letters from the surgeon to him. There are three reports in 2014, one shortly before the operation and two afterwards. Finally, there are reports from two specialists in 2016.
31 Mr Peter Kudelka was an orthopaedic surgeon. He saw Ms Trpkovski on 17 June 2013 at the request of an authorised agent. This was three months before the operation but after the x-ray, ultrasound and MRI scan. He was aware of their results.
32 Mr Kudelka found restricted movement in the left shoulder: flexion 100 degrees; abduction 90 degrees; and extension, internal rotation, external rotation and adduction reduced by a third. He was aware that she was to see a surgeon and noted the options. In effect, he felt she did not have the capacity to continue working as a patient services assistant at that stage. However, he felt her symptoms would gradually resolve, probably after surgery.
33 Mr Richard Pearse is also an orthopaedic surgeon. He saw her on 3 March 2014, again at the request of an authorised agent. He took a detailed history and reviewed the 2013 MRI report. Under current complaints, he recorded:
1“An occasional sharp pain in the left shoulder, located in the area of the scar where there is tenderness if she presses on it.
2Pain in bed at night, if she rolls onto her left shoulder she wakes. Up until the time of her injury she always falls asleep on her left side.
3Her range of movement is reduced, as a consequence, activities such as doing up her bra is difficult. With this problem she fastens the bra in front and then rotates it around the back. She finds it difficult to raise her arm up to do her hair.
4She finds it difficult to lift anything of any weight; she mentioned a handbag.”
34 Mr Pearse found reduced external rotation (40 degrees), abduction (90 degrees) and extension (reduced by 10 degrees) and internal rotation and flexion being normal. Based on what she told him, he noted a significant improvement in her level of pain and functionality.
35 Mr Jonathan Hooper is an orthopaedic surgeon. He examined Ms Trpkovski on 11 November 2014 at the request of an authorised agent. This was more than a year after the operation. As part of her history, he noted she was back at work, doing her normal job but at her own pace. He added:
“She said her shoulder does not bother her at work, but she does not overdo it and indeed I found her to be an uncomplaining woman about her work.”
36 Mr Hooper found:
“Active movements are only 90 degrees of abduction, 90 degrees of flexion, adduction is to 30 degrees, internal rotation is 60 degrees and external rotation is 60 degrees. She has pain on extremes and passive movement is not markedly more than active movement.”
37 Judging from his impairment evaluation form, the restrictions for flexion and abduction are significant, with the others less so, and external rotation being normal.
38 He diagnosed a painful and stiff shoulder following the repair of the rotator cuff tear. It seems Mr Hooper thought the tear was an aggravation due to repetitive work of pre-existing age-related degenerative changes. He felt her prognosis was reasonable, in that she will have permanent discomfort in her shoulder with a loss of range of motion.
39 Mr John O’Brien is an orthopaedic surgeon. He examined Ms Trpkovski on 22 June 2016 at the request of her solicitors. He noted she moved quite freely. He examined her left and right arms including the shoulders. He said, of her left shoulder:
“Quite marked tenderness was noted over the anterior and superior aspects of the left shoulder. Left shoulder flexion 110 degrees with 20 degrees of extension, 90 degrees of abduction, 10 degrees of adduction and 50 degrees of both internal and external rotation. Significant pain was reported on active flexion, abduction and external rotation against resistance. Indeed there did appear to be some weakness of the muscles of the left shoulder girdle.”
40 I would say these losses are very significant with some less than half of the normal range.
41 Mr O’Brien concluded the restriction of her shoulder movements indicated continuing rotator cuff dysfunction due to rotator cuff tendinopathy and bursitis. He felt both her shoulder pain and restricted movement will continue. The restriction of her shoulder movements are “quite definite”. No further investigation or invasive treatment is needed. Her current treatment is minimal, in that she takes anti-inflammatory drugs. He foresaw her need to take analgesic medicine when the pain becomes severe. It is possible she could aggravate her present condition, affecting her ability to work. Given her motivation, she will continue to do her normal duties. She has a disability with her non-dominant left arm which moderately affects her activities generally.
42 Mr Michael Shannon is a general surgeon. He examined her on 1 September 2016 at the request of the defendant’s solicitors. He concentrated on the left shoulder after noting the results of an ultrasound of the right shoulder. He found moderate restrictions of all shoulder movements, particularly abduction, flexion and internal rotation. He did not give measurements. He later described these restrictions as significant. He also found positive impingement signs. When asked, he made the obvious diagnosis of a rotator cuff tear which had been surgically treated. Again, when asked, he said she had pre-existing rotator cuff degeneration, which the general nature of her work caused the rotator cuff tear. This was an aggravation of a pre-existing condition. Despite the surgery, the effects of the aggravation continued and would do so permanently. After noting Ms Trpkovski took Celebrex and did exercises at home, he did not suggest any other treatment. When asked a question about her capacity for suitable employment, he said:
“She has demonstrated such a capacity, but she needs to take care with activities involving strenuous repetitive use of the left arm, heavy lifting and activities above shoulder height.”
Legal considerations
43 For this application, I must consider the following:
(a) the “injury” must be a “serious injury” as defined in s 134AB(37). In this case, it is a “permanent serious impairment or loss of a body function”. Here, the impairment is alleged to be to the left arm;
(b) the impairment or loss due to the injury is permanent, which means likely to last for the foreseeable future;[6]
[6]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
(c) “serious” is satisfied by reference to the consequences of her impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a bodily function;[7]
[7]Section 134AB(38)(b)
(d) the pain and suffering consequence of an injury encompasses both the plaintiff’s experience of pain and suffering and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life;[8]
[8]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [9]
(e) an impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[9]
[9]Section 134AB(38)(c)
(f) as in this case, where the plaintiff relies on paragraph (a) of the definition of “serious injury” and not paragraph (c), then s134AB(38)(h) of the Act requires me to ignore the psychological or psychiatric consequences of a physical injury. The extent of the operation of paragraph (h) is described by Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis;[10]
(g) whether an injury is serious is largely a question of impression or value judgment.[11]
[10](2007) 15 VR 649 at paragraph [9]
[11]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628
Discussion
44 Factually, this is a simple case. Ms Trpkovski was injured arising out of or in the course of her employment with the Epworth Freemasons Hospital. For the purposes of this application, the injury is confined to her left shoulder. An operation was performed. It enabled her to return to her normal duties. If success was the return to her condition before October 2012, then it is partial. She did not return fully. There are limits to what she can do. Nevertheless, she works her full hours and does much of what she did before the injury. There is persistent soreness. It rises to painful after work. This soreness and pain will continue for the foreseeable future. There is nothing on offer to reduce or rid her of those effects. She does not seek treatment for her shoulder because she believes it would not help. In this, she is correct. She now takes anti-inflammatory drugs frequently: Celebrex three or four times each week and Voltaren no more than once a week. For someone who does not like taking drugs, these are significant amounts.
45 The injury affects her sleep in two ways: going to sleep in the first place; and then waking up during the night after turning onto her left side and then struggling to return to sleep. The lack of sleep leaves her tired for the next day.
46 Before the injury, she led a simple life. It revolved around work, family, housekeeping and gardening. She is house proud. Now there are limits on what she can do about the house. At present, she has a lot of help. She cannot garden. At best, she potters. She is left to admire the garden. For one with narrow interests, this is a significant loss.
47 After the injury but before the operation, the movements of her shoulder were limited by pain. When Mr Kudelka examined her before the operation, flexion and abduction was reduced by more than a third and the rest to about a third of normal. In the year after the operation, Mr Pearse found some movements normal (flexion, internal rotation, adduction) while the others were reduced, especially external rotation. Mr Hooper found reductions in all movements.
48 The range of movement of her shoulder is now reduced. It is reduced by pain. It is somewhat better than when Mr Kudelka examined her. Mr O’Brien describes the restriction as “quite definite”, while Mr Shannon describes the restriction as “significant”. Mr O’Brien gave figures, Mr Shannon did not. However, they are both saying the same thing. Objectively, the restrictions are important; for Ms Trpkovski, more so. She was an active person. Now she cannot really garden. She struggles with her hair. She struggles with her bra. She cannot do much of the cleaning about her house. Given what she does at work, at home and elsewhere, the left arm being non-dominant is unimportant, for her activities require both arms.
49 Comparing the findings of Mr O’Brien with those of Mr Hooper is interesting. It is clear Mr Hooper used a goniometer because was doing an impairment assessment using the Guides. I can assume the accuracy of his measurements. He found flexion at 90 degrees, extension at 30 degrees, adduction at 30 degrees, abduction at 90 degrees, internal and external rotation at 60 degrees each. Two years later, Mr O’Brien found flexion at 110 degrees, extension at 20 degrees, adduction at 10 degrees, abduction at 90 degrees and 50 degrees for each of internal and external rotation. These findings are roughly the same. Mr Hooper examined her a little more than a year after the operation and Mr O’Brien a little under three years. At both times, the restrictions were very significant. There has been no improvement. No one suggests any other treatment. For someone who uses her left arm often at work and home, this is an important handicap.
50 Ms Trpkovski’s counsel took me through some of the facts of Haden’s case[12] and Halpin v Wilson Transformer Co Pty Ltd.[13] He contrasted those with some about Ms Trpkovski. Both cases are interesting but the exercise was largely pointless.
[12][2010] VSCA 69
[13][2012] VSCA 235
51 Ms Trpkovski is a person with simple interests. Her job is physical. She cleaned her home and took pride in the result. She loved gardening and took pride in her garden. These are physical activities. There were no sedentary, intellectual pursuits. On their own, what Ms Trpkovski cannot do in her home, garden, with her grandchild or otherwise physically assumed a greater importance for her. Even on their own, they are significant.
52 What takes her in the serious injury category is, first, her persistent soreness of her left shoulder. This ranges from a dull ache to a sharp pain. It affects her sleep seriously. Second, and related to the first, is the restriction of movement in the shoulder. The extent of this loss is significant for a person whose life revolves around physical acts.
53 In saying that, I have not overlooked what Ms Trpkovski has retained. After nine months’ absence, she did return to work. Within several months, she was working her normal hours. There are limits to what she does. But she is helped by her fellow workers. She has not missed any time since her return due to her shoulder. Until recently, she stayed away from doctors and drugs.
Conclusion
54 I will give Ms Trpkovski permission to start a proceeding for damages.
55 I will hear the parties on the question of costs.
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