White v G a Gathercole Pty Ltd
[2012] VCC 1124
•22 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01591
| LINDSAY MICHAEL WHITE | Plaintiff |
| v | |
| G A GATHERCOLE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2012 | |
DATE OF JUDGMENT: | 22 August 2012 | |
CASE MAY BE CITED AS: | White v G A Gathercole Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1124 | |
REASONS FOR JUDGMENT
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SUBJECT – SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the right shoulder – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38).
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; AG Staff; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon v Filipowicz (2012) VSCA 60; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
JUDGMENT – Leave granted to bring proceedings for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Ms A Ryan | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr A Saunders | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant from 20 October 1999 and in particular, in 2005 and 2006 (“the period of employment”).
2 It was pleaded in the draft Statement of Claim that throughout the course of his employment, the plaintiff was required to carry out heavy repetitive work, which included using an air knife and splitting saw. As a result of performing the work, including during 2005 and 2006, the plaintiff suffered injury, loss and damage.
3 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
4 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the right shoulder.
6 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
7 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
8 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
9 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
10 By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
11 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
12 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
13 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
14 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
15 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
16 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Petkovski v Galletti [1994] 1 VR 436 in reaching my conclusions.
The Plaintiff’s Evidence
17 The plaintiff is presently aged sixty-seven, having been born in June 1945. He was educated to about the age of fourteen and was a poor student. His ability to read and write is very limited.
18 From the age of fifteen, the plaintiff worked as a meatworker and commenced employment for the defendant at its Carrum abattoirs as a slaughterman in 1981.
19 During the course of his employment, the plaintiff suffered from various aches and pains, including problems with his neck and shoulders in the 1990s and with his back. He recalled having some time off work in the late 1990s and having physiotherapy over a fairly prolonged period.
20 Cross examination in this case focussed on the plaintiff’s shoulder condition prior to October 1999.
21 Whilst he could not specifically recall the attendances, the plaintiff agreed he attended Physioworks for treatment of his right shoulder in 1994-1995, 2000 and 2003.
22 The plaintiff could not recall seeing doctors at the Cranbourne Five Star Medical Clinic in late 1998, nor could he remember a right shoulder x‑ray or ultrasound at around that time. However, the plaintiff did not disagree that he had in fact attended at that time if the records were to this effect.
23 The plaintiff could not really remember the circumstances relating to a Claim for Compensation on 20 July 1994 for shoulder strain as a result of repetitive work or a minor claim form which set out “strain right arm, elbow and shoulder opening body beef and flanking” signed by him in May 1997.
24 Having been shown a Worker’s Claim for Compensation signed by him on 15 October 1998, claiming a sore right shoulder working as a slaughterman, flanking, the plaintiff agreed it was fair to say that at that time, he was having ongoing problems with his right shoulder.
25 The plaintiff agreed that since 1998, his right shoulder condition had been ongoing. He would not be sore in the shoulder at the end of every day at the meatworks, but his whole body ached “because they were just robots and they worked very hard.” He probably put up with the pain and continued to work because he had to. It was not a “lolly shop”. There was hard physical work every day. He had to provide for his family and keep working. However, he probably would have kept working had he won Tattslotto. He loved getting out of bed at half past four every morning for forty-six years and did not need an alarm clock.
26 Any difficulties the plaintiff had working on his farm in 1988 or thereabouts were not like he experiences now. He was then still helping his wife in the garden and with whatever else she was doing, while he was working. He could still do things at the time but he could not really remember back to 1998. He agreed he had difficulty sleeping whilst he was still working.
27 In cross examination, the plaintiff confirmed he was still working full time from 1998 to about 2006. He could not remember having any time off, save for perhaps a little bit of time in 2003. He had some physiotherapy and if the records said this occurred for a little while in 2003, that was correct. He did not see a doctor or physiotherapist after 2003 and he continued doing his normal heavy work until 2006.
28 The plaintiff’s duties with the defendant required him to use an air knife to do flanking, which required him to hold his shoulders up at least about head height and use forceful actions to cut beasts. He also had to use a very heavy splitting saw to split carcases. He had to use the saw frequently with a lot of force away from his body and at height.
29 In the latter period of his employment, the plaintiff was required to do more onerous physical tasks. In re-examination, the plaintiff described in more detail his work duties, involving the heavy use of his shoulders, working at a fast pace on numerous beasts on the chain.
30 As a result of his duties, the plaintiff experienced considerable right shoulder pain in about 2005, which he attempted to just put up with, but as time went on, the pain worsened.
31 The plaintiff confirmed he signed an incident report in October 2005 when his arms probably got sore. After that initial complaint, the plaintiff persevered with work even though his right shoulder was sore. He finally saw Dr Ling in April 2006 when he could not take any more pain and he “just pulled the pin”.
32 Dr Ling then arranged for the plaintiff to undergo an ultrasound and he placed the plaintiff off work. The plaintiff has been unable to work since that time.
33 The plaintiff had always worked very hard during his life and had never been unemployed. It was upsetting to him not to be able to continue to work. Had he not ceased work at that stage, he would have continued to work beyond the age of sixty-five. He enjoyed his job and it was the main part of his life. There were other workers in the defendant’s employ who have continued working beyond age sixty-five. The plaintiff’s friend, Sonny Carpenter, worked until he was seventy.
34 In re examination, the plaintiff confirmed that he wanted to keep working if he was able. He now could not do his duties due to his right shoulder pain. He would love to be able to get back into work. There are things he would love to do but he now can no longer do.
Medical Treatment
35 After the plaintiff had an ultrasound in April 2006, Dr Ling advised him that he had suffered a tear to a muscle in his right shoulder, and he was referred to orthopaedic surgeon, Mr Broughton.
36 Mr Broughton advised the plaintiff to undergo surgery but to date the plaintiff has not done so. He has a number of friends who have had shoulder surgery which made their condition worse and he was very worried about the prospects of undergoing surgery. Further, Mr Broughton also advised the plaintiff that if he underwent the surgery, he would never work again.
37 The plaintiff deposed in November 2011, and confirmed in his viva voce evidence, that since finishing work he has continued to suffer persistent ongoing pain in his right shoulder, made worse if he moves his arm or tries to lift anything heavy. He also has difficulty trying to put his right arm behind his body and he cannot lift his hand above his head. He has difficulty dressing himself and shaving.
38 The plaintiff is right arm dominant. That arm is now weaker and he tends to drop things when he uses it.
39 As time went on, the plaintiff started to note increasing pain in his left shoulder, which he believed was a result of overusing it because of his right shoulder pain.
40 Because of his right shoulder pain, the plaintiff’s sleep continues to be very restricted. He wakes during the night and has difficulty getting back to sleep and as a result, he is tired during the day.
41 Until recently, the plaintiff has not taken pain-relieving medication. He is a blood donor and has been so for many years since he lost his daughter from a blood condition. The plaintiff does not want to cease donating, so he has simply put up with his pain, rather than taking tablets, which would stop him being a donor. However, recently the plaintiff was advised by his general practitioner that he can continue donating blood while taking Panadol Osteo, so he now takes that medication on a regular basis.
42 When the plaintiff’s right shoulder pain is very bad, it feels like he has a dead arm and he is restricted in what he can do with it.
43 The plaintiff lives on six acres in Cranbourne where he has a few sheep and an old cow. He continues to do things around the property but is restricted in the heavier aspects of work.
44 The plaintiff is no longer able to do fencing or very heavy work that he previously did and he is now more reliant on others to help him, which is very upsetting for him.
45 The plaintiff can drive a car but he has difficulty driving for too long as both his arms tend to ache if he holds them up for too long.
46 The plaintiff previously enjoyed gardening and horse riding, but is now restricted in his ability to do these activities. He is also restricted in his ability to help his wife around the house. The plaintiff cannot wash the floors, mow lawns or attend to his vegetable garden without experiencing a considerable worsening of his pain and, as a result, he tends to avoid these activities.
Summary of the Plaintiff’s Earnings
Financial Year Ending Taxable Earnings 2003 $44,012 2004 $38,906 2005 $35,967 2006 $38,160 2007 $30,136 2008 $48,524 2009 $36,564 2010 $3,550 2011 Nil
The Plaintiff’s Medical Evidence
47 The plaintiff has attended the Cranbourne Family Medical Centre (“Cranbourne”) since 1991.
48 Dr Beveridge from Cranbourne provided a very detailed report dated 23 September 2006. He noted that the plaintiff saw Dr Bailey at Cranbourne in 1998 for a right shoulder complaint.
49 Since being seen by Dr Bailey, Dr Beveridge reported that in December 1998, the plaintiff was seen in relation to a right shoulder injury and given modified duties from 21 December until 10 January 1999. There was a further attendance on 11 January 1999. Similar certification continued until 1 February 1999, when the plaintiff was certified fit for normal duties.
50 Dr Beveridge noted that the clinical notes suggested the plaintiff had recovered from that injury to resume normal work.
51 There were attendances for non work-related matters in May 1999 and January 2000.
52 There were attendances in March 2000 for left elbow epicondylitis and on 10 April 2000 it was noted the plaintiff was coping with normal duties despite that condition.
53 The plaintiff was seen for non work-related matters in July and August 2000, and in February 2003.
54 Dr Beveridge noted there was no complaint about right shoulder pain in any of those visits in the last four years (2002-2006).
55 The plaintiff was seen for a lump on his hand in August 2003 and underwent trigger finger surgery later that year.
56 There were a number of attendances from February to April 2004 in relation to cellulitis of the right arm, with a certification for normal duties on 17 April 2004.
57 There was a further attendance in relation to the right hand in November 2004 but no further mention of that problem thereafter.
58 In February, March and April 2005, the plaintiff was seen for problems relating to a lumbar disc injury and was given a certificate for modified duties. He was certified fit to return to normal duties from 3 July 2005. He was seen later that month for non work-related matters.
59 The plaintiff was seen on 30 November 2005 with a painful right wrist consistent with overuse due to the physical demands on his upper limbs. He was given a certificate for five days. In December 2005, he was certified fit for return to normal duties.
60 On 5 April 2006, the plaintiff was seen by Dr Ling. The plaintiff then complained of right shoulder pain for months but it had become worse with activities as he was doing strenuous, physically demanding work as a slaughterman. A right rotator cuff injury was diagnosed and the plaintiff was certified unfit for two weeks. An ultrasound was carried out in April 2006.
61 Dr Beveridge noted the earlier ultrasound report from 1998 did not mention any damage to the long head of the biceps tendon.
62 The plaintiff was seen by Dr Ling in relation to a painful right shoulder on 10 and 20 April 2006.
63 It was noted a report was received from Mr Broughton, specialist, on 21 April 2006 advising he thought the plaintiff would obtain benefit from surgery relating to subluxation of the long head of the biceps.
64 On 24 April 2006, it was noted the plaintiff had been seen by Mr Broughton and advised he may improve with an operation but there was only a seventy five per cent chance. In any case, the plaintiff had been told it was unlikely he would get back to work if he had surgery.
65 It was noted on 22 May 2006 that the plaintiff’s right shoulder was still sore. He refused to have an operation because he would not be able to work after laying off work for so long. There were further attendances at Cranbourne on 24 April, 22 May and 7 June 2006.
66 There were further attendances on 21 June and 21 July 2006. It was noted that the plaintiff stated his work at the abattoirs over the years had always been physically demanding and that his right shoulder had hurt on and off, although never as bad as over the last few months.
67 Dr Beveridge noted that Mr Broughton thought the plaintiff’s condition was not a recurrence of the 1998 injury, as the plaintiff had been able to work in the interim and this would not have been the case if it had been a longstanding problem.
68 The plaintiff advised it was possible he had injured his right shoulder a few months earlier at work as he had to move a saw, weighing about one hundred and fifty kilograms, and he did not have proper assistance. The plaintiff advised he was not keen on surgery as the specialist would not give him any guarantee of success and the plaintiff had known of younger men at work who not been able to return to work after surgery. There were further visits to Cranbourne in August and September 2006.
69 Dr Beveridge concluded from the Cranbourne notes that it was apparent the plaintiff returned to normal work duties in early 1999 and although he suffered other work-related problems, he had not complained of right shoulder pain again until 5 April 2006.
70 Dr Beveridge advised the ultrasound report of April 2006 clearly identified a new problem involving the long head of the biceps tendon. The ultrasound also reported damage to the supraspinatus and subscapularis tendons (tendinopathy) similar to the findings reported from the 1998 ultrasound.
71 In Dr Beveridge’s view, that suggested a new problem had arisen (the biceps tendon damage), but there was also evidence of the past shoulder problem (the supraspinatus and subscapularis tendon damage). In relation to the latter, he noted the plaintiff did return to normal duties in early 1999, suggesting that healing had occurred and he apparently was not inconvenienced by this problem until 2006. Dr Beveridge noted damage in the biceps tendon would have placed extra stress on the rotator cuff mechanism (involving the supraspinatus and subscapularis tendons) that could have aggravated the old injury, leading to recurrence.
72 Dr Beveridge thought, alternately, the fact that there was a weakness of the rotator cuff from the 1998 injury, despite an apparent settling of symptoms, may have placed added stress on the biceps tendon that was eventually damaged in 2006 by the strenuous work activities that the plaintiff performed as a slaughterman. However, Dr Beveridge noted he was not a specialist and would believe it would be worthwhile to obtain a specialist’s opinion from Mr Broughton, who clearly stated in his letter that he felt it was a new injury.
73 Dr Beveridge again reported in late October 2007 and March 2008. As of October 2007, the plaintiff was taking Nurofen and Indocid as required, but not daily. He ceased taking medication over the past six months, as he did not like taking it because of the side effects.
74 Dr Beveridge noted that while there had been some fluctuation in the range of right shoulder movement, it had always been significantly reduced because of pain. In the earlier report, he noted the plaintiff’s pain fluctuated in severity from day to day. The plaintiff also complained that pain disturbed his sleep and was aggravated by any physically demanding activity.
75 Dr Beveridge noted the plaintiff suffered ongoing pain and limitation of right shoulder movement, disturbed sleep and development of pain in the left shoulder from using the left arm.
76 Dr Beveridge did not believe the plaintiff could return to his previous work or any other physically demanding activity, noting also the plaintiff’s limited reading and writing skills. He agreed with Mr Khan that the plaintiff was totally unfit for pre-injury duties or to return to alternative duties. He confirmed his views in a report of September 2008.
77 Dr Beveridge last reported in March 2012, providing a computer record of the plaintiff’s attendances since the earlier examinations. The plaintiff was seen by him at Thompson Road Clinic from July 2009 to March 2012.
78 Dr Beveridge confirmed he had provided ongoing WorkCover certificates until the plaintiff reached sixty-five. On the last visit in February 2012, although there was still some pain and disability in the right shoulder, the plaintiff felt things were slowly improving.
79 Whilst a report from Mr Broughton was not relied upon as he was unavailable for cross examination, his advice as to surgery was noted by Dr Beveridge and also commented upon by Professor Hart.
Medico-Legal Examinations
80 Dr Robyn Horsley, occupational physician, examined the plaintiff on 9 May 2012. The material with which she had been provided included a copy of Dr Beveridge’s detailed September 2006 report.
81 The plaintiff told Dr Horsley that his right shoulder pain remained worse than the left. He had a persistent reduction in range of motion on the right and persistent pain which interrupted his sleep. At rest, his pain tended to be five to six out of ten and with activity, could rise as high as eight to nine. The plaintiff complained of difficulty shaving and with static postures.
82 On examination, there was significant reduction in shoulder range of motion bilaterally. On the left, forward flexion was to ninety degrees, adduction to sixty degrees and extension to ten degrees. Internal rotation and abduction appeared relatively normal and external rotation was limited to twenty degrees.
83 On the right side, there was gross restriction with abduction to only thirty degrees, forward flexion to seventy degrees and extension to ten degrees. Internal rotation and abduction were limited in the last ten degrees and external rotation was limited to twenty degrees.
84 The supraspinatus test was positive on the right. The teres minor subscapularis test was negative. The biceps muscle belly became prominent with the biceps test on the right. The AC joint test was negative. Apley’s scratch test was grossly restricted superiorly and posteriorly. The plaintiff was only able to bring his thumb to his mid buttock region bilaterally.
85 Dr Horsley noted the ultrasound of the right shoulder of April 2006, x‑rays of the left shoulder of February 2009 and ultrasounds of both shoulders of that date.
86 Dr Horsley noted, on a background of constitutional degenerative change in the rotator cuff, the plaintiff had developed bicipital tendonitis. On examination, she thought he had evidence suggestive of a rupture of the biceps tendon on the right. He had radiological evidence of a full thickness tear of the subscapularis tendon in April 2006 and a partial under surface tear (full thickness) of the supraspinatus tendon with associated tendinopathy. She noted on the left, the plaintiff had evidence radiologically of supraspinatus tendinopathy and impingement bilaterally.
87 In her view, the plaintiff presented with significant disability bilaterally and clinical evidence suggestive of an element of chronic adhesive capsulitis.
88 Given the length of time since injury and the ongoing nature of the plaintiff’s symptoms, Dr Horsley believed his symptoms were likely to persist. She thought he had a significant disability unlikely to respond to physical therapy but would defer to orthopaedic colleagues in that regard. She thought the plaintiff had a significant and ongoing disability which prevented him from returning to the workforce and he had come to the end of his working life, although he planned to work until at least until the age of sixty-five.
89 Dr Horsley confirmed that the heavy nature of the plaintiff’s manual work had been a significant contributing factor to his shoulder condition. She thought he had no capacity to return to slaughterman work as he was unable to elevate his shoulders bilaterally to above chest height, limited to ninety degrees on the left and on the right, seventy degrees, and there was also the significant reduction in abduction and power.
90 Dr Horsley concluded the plaintiff was significantly disadvantaged. He had ceased work at the age of fifty-nine and had Year 8 education with no literacy skills. He was never a retraining or relocation candidate. Alternative duties were not available. His opportunities for redeployment were negligible and in her view, the plaintiff was totally and permanently disabled.
91 Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff in March 2012. He, too, had available Dr Beveridge’s report and also a report from Mr Nigel Broughton, orthopaedic surgeon.
92 The plaintiff told Mr Fogarty that both shoulders had been a problem, with the right shoulder first being a problem in about 2001. There was some physiotherapy at that stage and the pain settled, allowing the plaintiff to return to work. The plaintiff advised the pain started again in early 2006 in both shoulders and he had been unable to work since April of that year. The plaintiff told Mr Fogarty that while surgery had been indicated, it would mean that he could not return to work.
93 The plaintiff complained of pain at the top and front of both shoulders, made worse by trying to lift his shoulders above shoulder height.
94 On examination, there was some wasting in the supraspinatus of both shoulders and an appearance of rupture of the tendon of the long head of the biceps in both upper arms. There was slightly restricted neck movement. There was no neurological deficit in either upper limb. Forward flexion of the right shoulder was to ninety degrees and extension thirty, abduction forty and adduction to twenty degrees. Internal rotation was to sixty degrees and external rotation, thirty degrees.
95 At the left shoulder, forward flexion was to ninety degrees, extension thirty, abduction forty, adduction twenty, internal rotation eighty and external rotation to forty degrees.
96 Mr Fogarty noted the April 2006 ultrasound and x‑rays of both shoulders in 2009 which showed bilateral osteoarthritis of the acromioclavicular joints and evidence of osteoarthritis of the right glenohumeral joint.
97 Mr Fogarty diagnosed rotator cuff tears in each shoulder, together with aggravated osteoarthritis of the acromioclavicular joints in each shoulder and early glenohumeral osteoarthritis in the right shoulder. In association with the tears, he thought there was also a rupture of the tendon of the long head of the biceps on both sides.
98 In Mr Fogarty’s view, the plaintiff would be unable to do repetitive work or any work involving lifting his shoulders above shoulder height, nor indeed any significant lifting above five kilograms, even with his arms below the level of his shoulders.
99 Mr Fogarty thought the injuries were permanent and that the plaintiff did not have a capacity for work. He thought the prognosis for both shoulders was poor.
100 Dr Poppenbeek, occupational physician, saw the plaintiff in July 2006 on behalf of QBE and re‑examined him on 18 June 2007. He also provided a supplementary report in August 2008.
101 Initial examination of the right shoulder showed noticeable deltoid muscle wasting and AC joint tenderness extending to the anterior shoulder and deltoid insertion. All movements were about fifty per cent.
102 The plaintiff described gradual onset of right shoulder pain, stiffness and limited movement from about 1998. Treatment during those early years comprised anti-inflammatory and analgesic tablets with physiotherapy. The plaintiff continued full time duties with no time loss from work, but by April 2006 his right arm symptoms were severe and he was unable to resume work after that time.
103 Dr Poppenbeek noted the plaintiff had persevered with full duties with a problematic right shoulder for many years but now had quite significant restriction of function. Surgery had been recommended but obviously the plaintiff was not keen to follow that advice.
104 Dr Poppenbeek concluded that the plaintiff probably had right shoulder rotator cuff and long head of biceps tendinitis for over five years and the condition became acute with a jarring injury to the right shoulder in the course of work in April 2006. Dr Poppenbeek suspected that jarring may have resulted in a small tear of the rotator cuff tendons and that the plaintiff now had clinical evidence of capsulitis or frozen shoulder, which had occurred on the background of quite severe longstanding tendinitis.
105 The plaintiff gave Dr Poppenbeek no specific history of injury on 25 September 1998, but told him his painful right shoulder began in late 1998. Dr Poppenbeek thought the plaintiff’s problem related back to that time, being an aggravation of tendinitis. He thought there was still a work contribution.
106 Dr Poppenbeek believed the plaintiff had no capacity for pre-injury duties and given the severity of his shoulder problem affecting his dominant arm, he did not think the plaintiff was likely to return to work in the foreseeable future. He thought the plaintiff would be fit for very limited restricted duties. He considered age related tendon degeneration may be one factor, but he thought it was of relatively minor significance considering the work input.
107 On re-examination, Dr Poppenbeek noted the plaintiff appeared to have worsened. Dr Poppenbeek’s diagnosis remained the same, as did his views on the plaintiff’s work capacity.
108 In his supplementary report following receipt of correspondence from the defendant, Dr Poppenbeek confirmed he had had many years consulting in the meat industry and was very aware of the types of injuries that occurred. While it was certainly true that people over the age of sixty were likely to have degenerative tears in the rotator cuff tendons, if a patient told him that he did a particular activity which resulted in an acute jerking back of the right shoulder and a lateral or abduction movement, combined with a previous injury, Dr Poppenbeek thought it very clear to him, as a medical assessor, that it was a new injury rather than simply a degenerative tear, which would occur gradually over a period of time. He confirmed work factors were the main issue in the plaintiff’s presentation.
109 Mr Khan, orthopaedic surgeon, examined the plaintiff on behalf of QBE in March 2008. The plaintiff told him that he had sustained repetitive strains to his back and occasionally he had taken time off work for pains in his shoulders and back before ceasing work. The plaintiff mentioned being given extra strenuous duties on 4 April 2006 which caused him not being able to continue work.
110 On examination, the plaintiff complained of sleeping poorly. His right shoulder ached, depending on its position. He could not use it in elevation, pushing or pulling.
111 There was some degree of muscular wasting around the right shoulder and shoulder girdle area. The circumference of the plaintiff’s right upper arm was two centimetres less than the left. There was some weakness in the right biceps belly. There was tenderness over the anterior aspect of the capsule of the shoulder and pain present in the top of the right shoulder blade and shoulder area. There was no tenderness in the left shoulder. There was restriction of movement of both shoulders.
112 Taking into account the plaintiff’s age, lack of skills and education, Mr Khan thought he was not a suitable candidate for retraining. He considered the plaintiff required further investigations of his shoulder. He thought the plaintiff’s employment was the main contributing factor to his injury.
113 In Mr Khan’s view, the plaintiff’s condition was consistent with the episode described on 4 April 2006 and it had also developed over a period of time during the course of work as a slaughterman. He thought the plaintiff was not fit for his pre-injury duties and would not be for an indefinite period. Presently, he considered the plaintiff was not fit for alternative duties.
114 Mr Khan concluded the plaintiff had developed an acute episode of damage or tear of the rotator cuff tendon, the details of which were given on top of chronic tendinopathy brought about by a long period of repetitive and strenuous work as a slaughterman. He confirmed the plaintiff was totally unfit for pre-injury work and prevented from returning to suitable alternative duties on account of his pain.
115 Mr Khan noted that the jobs suggested by Konekt in May 2009 all required some degree of repetitive strenuous use of the right arm. He thought the plaintiff required further investigation before he could be considered for those duties as at that time they were not suitable for him.
116 Mr Khan noted the plaintiff appeared to have developed a rather negative attitude and would require some form of counselling and assessment in a multidisciplinary rehabilitation centre before he could be ready to return further duties.
117 Mr G Moran, orthopaedic surgeon, examined the plaintiff on behalf of QBE in August 2008. He was provided with material which post dated 2006 and did not include the earlier detailed report from Dr Beveridge.
118 The plaintiff complained to Mr Moran of right shoulder pain present most of the time. Mr Moran diagnosed rotator cuff tendonitis, subluxation of the long head of the biceps tendon and adhesive capsulitis.
119 Mr Owen Deacon, orthopaedic surgeon, examined the plaintiff on behalf of QBE in January 2009. He concluded the plaintiff had sustained injury on 4 April 2006 but noted the register of injuries in late 2005.
120 Mr Deacon noted the injury had arisen out of the course of the plaintiff’s employment on or after 12 November 1997. He thought there was an impairment relative to both shoulders.
121 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 16 March 2011 and re examined him on 2 July 2012.
122 Mr Jones was provided with Dr Beveridge’s September 2006 report and the letter of instruction relating to his second examination set out the plaintiff’s prior complaints of shoulder pain in 1994 and 1998.
123 On initial examination, the plaintiff reported equal symptoms in both shoulders and constant pain aggravated by use.
124 On examination, there was symmetrical measured range of motion movement in both shoulders with flexion to fifty degrees, abduction to forty five degrees, external rotation, internal rotation and extension to thirty degrees and abduction to forty degrees.
125 From the available information, Mr Jones noted it appeared that the plaintiff presented to his general practitioner in 1999 with some early symptoms of rotator cuff degeneration and possible tear, manifesting in some right shoulder pain and possibly some mild restriction of movement. There were apparently no left arm symptoms at that stage.
126 The plaintiff’s current complaint was one of degenerative rotator cuff tendon disease with small tears in the right rotator cuff tendon, allowing possible subluxation of the humeral head within the shoulder joint and associated with some mild degenerative disease affecting the acromioclavicular joint.
127 Mr Jones noted the most recent ultrasound suggested some bicipital tendonitis which was apparently not present in 1999. Further, on the left side the plaintiff appeared to be developing a similar problem and clinically was at approximately the same level as his right shoulder at the present time.
128 Mr Jones noted the 2009 x‑rays showed rotator cuff tendon disease but no evidence of any tear or bicipital tendonitis.
129 Mr Jones thought that the difference between the plaintiff’s condition in 1999 and currently, was that there had been a progression of his rotator cuff disease on the right with the development of bicipital tendonitis. On the left there had been no apparent previous symptoms in 1999. Mr Jones thought that the deterioration in the plaintiff’s symptoms suggested a rotator cuff tendon tear had subsequently occurred.
130 Whilst noting there was a definite aging component to the plaintiff’s complaint, Mr Jones concluded the plaintiff could not return to his pre-injury employment even with extensive rehabilitation or training. He believed the plaintiff had a capacity for suitable light employment of a non physical nature.
131 On re examination, the plaintiff stated he believed both shoulders may have deteriorated slightly.
132 There was a symmetrical range of movement in both shoulders, with abduction and flexion to fifty degrees, external and internal rotation and extension to thirty degrees and adduction to forty degrees.
133 On the right side, there was clinical evidence of a rupture of the right biceps tendon with bunching of the biceps muscle on active flexion of the right elbow.
134 Following this examination and the provision of further material relating to the plaintiff’s shoulder condition in the 1990s, Mr Jones’ opinion was unchanged.
Investigations
135 There was an ultrasound of the right shoulder carried out on 5 April 2006 at Dr Ling’s request.
136 It was reported there was medial subluxation of a thickened and heterogeneous long head of biceps tendon with a likely full thickness tear at the outer insertion of the subscapularis tendon. There was a small partial under surface tear at the anterior outer insertion of the supraspinatus tendon associated with mild to moderate diffuse tendinopathy.
Register of injuries
137 There were a number of entries of injury whilst working for the defendant. On 11 May 2000, it was noted the plaintiff had pain from an old injury in both shoulders and elbows from flanking and sawing.
138 On 24 July 2000, it was noted that there was a right shoulder injury.
139 On 13 February 2003, it was noted both of the plaintiff’s AC joints were hurt from beef flanking.
140 On 7 January 2005, it was noted the plaintiff suffered a soft tissue injury to the chest area and rear clavicle while working flanking beef.
141 On 18 October 2005, both shoulders were sore from flanking and sawing.
142 On 24 October 2005, both shoulders were sore from pushing through briskets.
The Defendant’s Medical Evidence
143 Sean Slattery from Sladen Street Spinal and Sports Physiotherapy Centre reported in May 1997, noting that the plaintiff had been referred with cervical spine, shoulder and upper limb region problems.
144 It was noted the plaintiff initially complained of some right elbow pain but also stiff neck and intermittent occasional pain in his shoulder, along with his forearm. There was some reduction in neck and shoulder movement and mobilisation exercises were recommended.
145 Dr Bailey from the Five Start Health Centre in Cranbourne reported that the plaintiff presented on 8 October 1998 complaining of a painful right shoulder for the previous week. He represented on 9 October 1998, continuing to complain of right shoulder pain, as well as pins and needles and numbness in the right hand.
146 On examination, there was a lipoma overlying the deltoid muscle. Movement of the right shoulder was reduced. A diagnosis was made of inflamed right shoulder and perhaps very mild right carpal tunnel syndrome. The plaintiff was treated with local heat and non steroidal anti-inflammatories and an x‑ray and ultrasound were ordered. No abnormality was seen on x-ray.
147 Dr Bailey noted the ultrasound of the right shoulder showed a tear in the supraspinatus tendon and in the subscapularis. There was no evidence of any free fluid in the shoulder joint, nor of any in the bursa. The soft tissue swelling in the deltoid region appeared to be a lipoma.
148 In view of those findings, the plaintiff was then referred to physiotherapy. He was then seen on several occasions with gradual but slow improvement in his right shoulder. Dr Bailey reported the plaintiff still had reduction in movement, particularly abduction and external rotation, and he had been able to return to work on light duties.
149 Dr Bailey thought the plaintiff’s work was a significant contributing factor to his condition. That work was strenuous, forceful and required repetitive use of the right shoulder through a large range of movement. Dr Bailey then thought the plaintiff had a partial incapacity.
150 Professor Hart, orthopaedic surgeon, first examined the plaintiff on 17 April 2012. At that time, the plaintiff complained of pain in both shoulders aggravated by movement.
151 Professor Hart had a history of the plaintiff developing right shoulder pain on 18 October 2005 and attending his general practitioner in April 2006. He also noted Dr Bailey’s report of 15 December 1998 and an ultrasound at that time.
152 On examination, there was a positive impingement test bilaterally. The muscle belly of the biceps was prominent in the right arm, probably related to rupture of the long head.
153 In Professor Hart’s view, the plaintiff presented with bilateral shoulder pain with degenerative changes in the rotator cuffs and tendinosis of the long head of the biceps bilaterally associated with impingement.
154 Professor Hart noted the plaintiff first developed right shoulder pain in October 1998, at which time the ultrasound showed tears. According to the records, the plaintiff first complained of pain in 1994 and 1996, but indicated to Professor Hart that he first developed pain in 1998 and he presented to the medical clinic in Cranbourne, as confirmed by Dr Bailey.
155 Professor Hart thought the plaintiff was suffering from degenerative changes affecting both rotator cuffs with probable subacromial bursitis and impingement bilaterally. He thought there was also evidence of bicipital tendinosis on ultrasound and clinical evidence revealed the plaintiff may have ruptured the long head of biceps on the right.
156 Professor Hart felt there was little difference in the clinical situation of the plaintiff’s shoulders between 1998 and 2005.
157 While there was some resistance to movement of both shoulders, Professor Hart thought there was no evidence of any functional or psychological reaction to the plaintiff’s physical condition.
158 Professor Hart considered the plaintiff would be unable to perform any activity which involved working at shoulder height, repetitive pushing and pulling with the upper extremities, or lifting more than seven kilograms.
159 Professor Hart noted some variations between the ultrasound reports in 1998 and 2006. In 2006, it was noted the long head of the biceps was dislocated from the groove but subsequently, it was shown to be enlocated. Apart from that, he thought there was very little change in the appearance of the ultrasounds, with tears in the supraspinatus and subscapularis and evidence of tendinopathy.
160 There was a subscapularis tear reported in the ultrasound of the right shoulder in 2006, but the 2009 ultrasound indicated the subscapularis was thinned but intact. Professor Hart thought that variation was possibly related to observer irregularities, noting there was a long recognised problem with interpretation of ultrasounds.
161 Professor Hart thought it was fair to say that there was pathology consistent with degenerative change evident in 1998, 2006, and again in 2009. He thought it seemed surprising in fact, that despite the presence of partial tears in his rotator cuff, the plaintiff was able to continue working and that the tears did not progress between 1998 and 2006.
162 Professor Hart re-examined the plaintiff in July 2012. He noted there had been no significant change in either the plaintiff’s symptoms or his treatment since the previous examination.
163 Professor Hart reported that the plaintiff presented with bilateral shoulder pain with marked restriction of movement and discomfort which seemed out of proportion to the pathology that had been demonstrated on imaging. However, he thought overall the picture remained of a person with marked restriction of movement in all directions associated with pain.
164 In Professor Hart’s view, the plaintiff would be well advised to return to see Mr Broughton for a further opinion, but noted the plaintiff was reluctant to have surgery.
165 When asked whether he agreed with Mr Jones’ opinion as to the changes in pathology and his finding of bicipital tendonitis, Professor Hart commented that ultrasounds were notoriously observer dependent and not totally reliable, particularly with subtle changes. Further he noted that bicipital tendonitis was due to degeneration in the bicipital tendon which may be associated with repetitive overhead activity but may also occur with age.
Investigations
166 An ultrasound of the right shoulder ordered by Dr Brickell on 13 October 1998 showed tears in the supraspinatus tendon and in the subscapularis. There as no evidence of any free fluid in the shoulder joint, nor of any bursae. The soft tissue swelling in the deltoid region appeared to be a lipoma.
167 The right shoulder x‑ray showed no abnormality. The glenohumeral joint and acromioclavicular joints appeared normal and there was no evidence of calcification in the rotator cuff.
Claim Documents
168 The plaintiff signed a Claim for Compensation on 20 July 1994, noting shoulder strain as a result of repetitive work.
169 There was a minor claim form for “strain right arm, elbow and shoulder opening body beef and flanking” signed by the plaintiff in May 1997.
170 There was a Worker’s Claim for Compensation signed by the plaintiff on 15 October 1998, claiming a sore right shoulder working as a slaughterman, flanking from 25 September to 6 October 1999.
Clinical Notes
171 Handwritten notes from Physioworks set out the plaintiff attended for physiotherapy treatment to his right shoulder on fourteen occasions from 14 July 1994 to 15 March 1995.
172 The plaintiff re-attended from 27 March 2000 until 11 July 2000, during which time he had treatment on fourteen occasions. There was a third period of treatment from 16 April until 11 June 2003, during which the plaintiff attended on six occasions.
Overview
173 It is accepted that the plaintiff suffered injury to his right shoulder in late 2005/early 2006 as a result of his heavy repetitive duties with the defendant.
174 The plaintiff’s Claim for Compensation was accepted and he was paid weekly payments until the age of sixty-five.
175 Further, by letter dated 19 February 2009, the plaintiff was advised by QBE that his claim had been accepted pursuant to s98C of the Act in relation to the right shoulder, left shoulder and psychiatric condition.
176 In this case, where there is a pre existing right shoulder condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional consequences resulting from the period of employment are serious and permanent.
177 In Petkovski v Galletti (supra), the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and assessment made of the extent of that additional impairment and if that additional impairment was not serious, so it was said then leave must be refused.”
178 This approach was recently followed and adopted by the Court of Appeal in AG Staff v Filipowicz, Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60.
179 Counsel for the defendant submitted that the plaintiff had suffered an injury in 1998 and any aggravation thereafter in the period of employment was not serious. Further, reliance was placed on Professor Hart’s view that there was little difference in the clinical situation of the plaintiff’s shoulders between 1998 and 2005.
180 I must therefore consider the plaintiff’s situation before and after the commencement of the compensable period in 1999 and decide whether the consequences thereafter are serious and permanent.
181 Clearly, the plaintiff had episodes of right shoulder pain requiring physiotherapy in 1994,1995, 2000 and 2003.
182 Further, the plaintiff attended Cranbourne Five Start Clinic in 1998 complaining of right shoulder pain.
183 In cross examination, the plaintiff conceded that he had some ongoing problem with his shoulder from 1998 and on and off he was troubled with right shoulder pain.
184 However, as Dr Beveridge set out in his detailed report of 2006, the plaintiff did not complain of shoulder pain at Cranbourne during numerous attendances from February 1999 until April 5 2006 when he reported he had right shoulder pain for months made worse by his physically demanding work as a slaughterman.
185 Counsel for the defendant relied on the 1998 ultrasound which showed tears in the supraspinatus tendon and in the subscapularis – a finding also noted on ultrasound in 2006. However, on the latter ultrasound, there was the additional finding that the long head of the biceps was dislocated from the groove, although Professor Hart considered the biceps tendon was not subluxed in 2009.
186 Whilst prior to the period of employment there was pathology consistent with degenerative change evident as Professor Hart described, the plaintiff was able to continue working and carrying out activities of daily living without any significant problem. Professor Hart commented that it seemed surprising in fact that despite the presence of partial tears in his rotator cuff, the plaintiff was able to continue working and that the tears did not progress between 1998 and 2006.
187 Whatever Professor Hart’s surprise, this was the situation and it was not simply the case, as submitted by counsel for the defendant, that the plaintiff was “just hanging in” during that time after “the damage had already been done”.
188 From the last physiotherapy treatment in June 2003, around which time the plaintiff might have had a short time off work, until April 2006, when he saw Dr Ling, the plaintiff was able to continue in heavy work as a slaughterman with no time off and no requirement for any treatment or attendances on his doctor. Further, he was able to engage in daily activities without significant interference from any shoulder problem.
189 As Dr Beveridge noted, the plaintiff did return to normal duties in early 1999, suggesting that healing had occurred and he apparently was not inconvenienced by this problem until 2006.
190 Thus, the issue for determination is whether the consequences of the aggravation of the plaintiff’s previous right shoulder complaint resulting from his heavy duties during the period of employment as at the date of hearing, are serious and permanent.
191 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
192 I found the plaintiff to be a very truthful, honest, genuine witness who did not overstate the severity of his problems. There was no evidence challenging the genuineness of his complaints. Save for a comment by Professor Hart that the plaintiff’s presentation seemed out of proportion to the imaging, there was no mention by any medical examiner of functional overlay or exaggeration by the plaintiff on examination.
193 I accept that, particularly from October 2005, the plaintiff has suffered constant right shoulder pain which results in considerable restriction of shoulder movement. The plaintiff’s condition is such that surgery was suggested by Mr Broughton in 2006.
194 The plaintiff has, however, been reluctant to follow this course as he was advised by Mr Broughton that following such a procedure, he would not have been able to return to work – such concerns noted in the Cranbourne clinical file during 2006 when surgery was suggested.
195 Protection by the plaintiff of his right shoulder has also caused him increasing problems with his left, a problem that did not exist before the period of employment.
196 I accept that the plaintiff loved working in the meat industry. It was his life from the age of fifteen. Had he not been forced to stop work at the age of sixty because of his shoulder condition he would have worked at least to the age of sixty-five, and in all likelihood thereafter, as had his friend, Sonny.
197 There is no dispute as a result of his shoulder complaint, the plaintiff is unfit for his pre-injury work. The consensus of medical opinion is to this effect as the plaintiff is unable to elevate his shoulders bilaterally to above chest height and there is also a significant reduction in abduction and power,
198 There is very limited medical support for the proposition that the plaintiff has a capacity for suitable employment with these physical restrictions, his Year 8 education and lack of literacy skills and training.
199 The issue of work capacity was not pursued in cross examination. However, it was ultimately submitted by counsel for the defendant that the loss of capacity to work as a slaughterman was not a serious consequence for the plaintiff as he had only a short future working life in any event.
200 I accept the plaintiff’s evidence that he intended to work beyond age sixty-five and there was scope to do so in the defendant’s employ. In such circumstances, the plaintiff’s inability to continue to work as a slaughterman is a serious consequence.
201 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
202 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
203 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
204 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
205 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
206 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. I am therefore required to determine a “without injury” earnings figure - see Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 70.
207 Consistent with the general approach of both parties in this case, no actual without injury earnings figure was suggested. The plaintiff’s position was simply that he had no capacity for suitable employment. No alternative scenario was posed by counsel for the defendant who relied solely on the aggravation issue in defence of the application.
208 As I am satisfied that the plaintiff has no capacity for his pre-injury employment or suitable employment, I am satisfied that he has a permanent loss of earning capacity of forty per cent.
209 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
210 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
211 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; i.e., both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 paragraph [147] and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
212 As the plaintiff’s symptoms have persisted for in excess of six years without any improvement, I am satisfied his right shoulder impairment is permanent.
213 In all the circumstances, I am satisfied the plaintiff has a serious injury in relation to his right shoulder. Accordingly, I grant the plaintiff leave to bring proceedings for both pain and suffering and loss of earning capacity.
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