Wright v Victorian WorkCover Authority
[2019] VCC 1744
•6 November 2019
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-00965
| SARAH ENID WRIGHT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 21, 22 and 23 October 2019 | |
DATE OF JUDGMENT: | 6 November 2019 | |
CASE MAY BE CITED AS: | Wright v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1744 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injuries to right shoulder and neck in workplace assault – earlier transport accident – nature and extent of injury suffered in that transport accident – nature and extent of injury suffered in assault – whether consequences of assault “very considerable” – pain and suffering consequences only
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted in respect of pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr S J Carson | Maurice Blackburn |
| For the Defendant | Mr P A Scanlon QC with Mr S D Martin | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 Mrs Wright is a nurse and has worked in a number of areas within that profession. She worked for Bendigo Health in 2013 and 2014.
2 On 6 September 2013, she was involved in a motor vehicle accident when she was leaving her work. It was a relatively low-speed impact, although she said she was “shaken up” as a result. She suffered some aching and soreness around her neck and into her shoulders. She had no time off and returned to normal duties. She did not have any medical treatment. In January 2014, her work duties changed and her hours increased.
3 In February 2014, Mrs Wright was involved in an incident at work with a very agitated patient. She said she was violently thrown against a wall, and suffered the immediate onset of right shoulder pain, which spread to the right side of her neck (“the assault”). Again, she remained at work, although took three weeks’ holiday leave over Easter. She said her neck and shoulder pain increased.
4 Mrs Wright filed a WorkCover Claim Form,[1] dated 4 May 2014. She said the document was not completed by her, although she signed it. The cause of a rotator cuff injury to the right shoulder, as described in the document, was said to be the transport accident. No formal WorkCover claim was filed in respect of the assault.
[1]Defendant’s Court Book (“DCB”) 5
5 On 26 April 2014, an orthopaedic surgeon, Mr Richard Dallalana, performed an arthroscopic repair to the rotator cuff of Mrs Wright’s right shoulder. She has had ongoing problems with pain and restriction of movement of the right shoulder since. She subsequently developed pain and restriction in the left shoulder, she says, as she was forced to use the left shoulder more. In 2017, she underwent a hydrodilatation procedure to that shoulder.
6 Mrs Wright has remained within the nursing profession, moving to Sydney and New Zealand, and presently works in the United Kingdom. She says her hours are reduced, and she has had to modify her work tasks to accommodate her injuries. She claims a range of domestic, recreational and social activities are restricted.
7 An application seeking a serious injury certificate was also issued against the Transport Accident Commission in relation to the earlier transport accident. That application was heard concurrent with the WorkCover application. At the conclusion of the evidence, Mr Monti, on behalf of the plaintiff, withdrew the transport accident proceeding, and consent orders were made dismissing it.
8 What remains for determination is a serious injury application in relation to the assault. The body functions said to be lost or impaired are the right shoulder; alternatively, the cervical spine. The application is in respect of pain and suffering only, as the plaintiff has remained in employment.
9 Sensibly, Mr Scanlon, for the defendant, conceded that if regard was had to the injury to the right shoulder, assessed at the present time, the consequences met the “very considerable” test the legislation requires. The real issue, he said, was whether the injury to the right shoulder, and the consequences which flowed, were related to the assault on the one hand, or the transport accident on the other.
10 In the course of her evidence, Mrs Wright said that overwhelmingly the source of her problems was the assault, and not the transport accident. As to the latter, she said she only had some aches and pains as a result, which caused little interference with her working and domestic life. Different and more significant pain and restriction emerged after the assault.
11 The determination of the application requires consideration of the following questions:
(a) is the plaintiff a credible witness, and can the Court rely upon her assessment of the consequences, respectively, of the transport accident, and the assault?
(b) in the assault, what injury did the plaintiff suffer, what were the consequences which flowed, and did those consequences meet the statutory test to the exclusion of the consequences arising out of the transport accident?
Credibility of the Plaintiff
12 Mr Scanlon was critical of the credibility of the plaintiff. He said there are a number of aspects of her evidence which were unsatisfactory.
13 He described the bringing of the application in respect of the transport accident as a ploy. He said it was clear from the circumstances of the accident Mrs Wright had no claim against the driver of the other vehicle, and the purpose of permitting Mr Stanley, counsel for the Transport Accident Commission (“TAC”), to cross-examine the plaintiff was only to throw up “Dorothy Dix” questions which were designed to enhance the plaintiff’s claim in respect of the assault.
14 I do not consider this reflects adversely on the credibility of the plaintiff. I am of the view it was likely the bringing of the application against the TAC was to “shore up” the plaintiff’s situation and to prevent her falling between two stools. The application against the TAC was done for forensic, tactical reasons. These decisions would have been made by lawyers.
15 Mr Scanlon’s second point related to the reported circumstances of the transport accident. The vehicle Mrs Wright was driving at the time was owned by Bendigo Health. She completed a claim form setting out the circumstances of the accident. According to that claim form,[2] the other vehicle involved in the collision came from Mrs Wright’s left when she was at a roundabout, and thus failed to give way to her vehicle. The police were called and attended the scene. It was not until a later date she sought to obtain the police report.[3] This confirmed she was struck by a vehicle which failed to give way to her.
[2]Transport Accident Commission Court Book (“TAC CB”) 4-7
[3]TAC CB 12-15
16 However, this scenario stands in contrast to a photograph said to show the damage caused to the other vehicle in the collision. It was contended a photograph of a red motor vehicle[4] showed damage to the rear passenger side. Such damage could not have occurred had the accident happened in the way Mrs Wright described.
[4]TAC CB 16
17 Mr Scanlon submitted Mrs Wright had intentionally misstated what had occurred in the claim documents to increase the prospect of her being able to obtain compensation through the TAC scheme. If correct, Mrs Wright committed an intentional fraud.
18 However, a close examination of the police report would suggest Mr Scanlon’s contention is not correct. The “incident report”[5] notes that Kyneton police attended the scene. The collision occurred at a roundabout at the intersection of Edgecombe and Epping Streets, Kyneton. The driver of the other vehicle is noted as Nikki Hill, driving a red Volkswagen Golf. The point of impact to the Golf was said to be the right front panel. The diagram on the police report[6] indicates Mrs Wright’s vehicle in the roundabout, with the other vehicle failing to give way as it came out of Epping Street, as she described in evidence. The incident is described in exactly the same way in the report to Zurich Insurance, which is dated 9 September 2013.
[5]TAC CB 13-15
[6]TAC CB 15
19 It is difficult to identify the make and model of the car depicted in the photograph, although it is red.[7] What is clear, is that the damage to that vehicle is to the left rear panel and not to the right driver’s side, as would be expected from the circumstances as described by Mrs Wright.
[7]TAC CB 16
20 When cross-examined on the point,[8] Mrs Wright said that she could not remember where the damage was to the other vehicle. She was unable to identify the colour of the other vehicle.[9] It is unclear from what source the photograph was taken. There is no evidence before me as to who took the photograph, or when. In these circumstances, I am not satisfied that the photograph identifies the damage, or all of the damage, caused to the other vehicle in the collision.
[8]Transcript (“T”) 33, Line (“L”) 12
[9]T35, L27
21 It was put to Mrs Wright that she had not contacted the police until “years later”.[10] She said she contacted the police who came to the scene as the other car was in the middle of the intersection. She accepted that it was not until 2018 that she sought and obtained a formal police report.[11]
[10]T39, L28
[11]T40, L17
22 Mrs Wright accepted that the policeman who prepared the report in 2018 was not a witness to the accident.[12] The reason that she spoke to that officer in 2018 was to obtain confirmation that she was the innocent victim of the collision.[13] It was put to Mrs Wright that she was “setting up” some five years later to obtain confirmation that she was injured in the accident. She said that she did suffer an injury.[14]
[12]T41, L17
[13]T41, L22
[14]T42, L7
23 The fact that Mrs Wright sought to obtain a police record some five years after the accident does not appear to me to be unusual. Presumably, her solicitors were involved and suggested she obtain a police report as part of investigations to determine what steps to take in respect of both the assault and the transport accident. Importantly, there is no evidence to suggest what is set out in the report was only as a result of Mrs Wright’s enquiry in 2018. The letter which accompanied the report says “I refer to your recent request and enclose a copy of the Collision Report”. I do not accept Mr Scanlon’s proposition that the belated application to the police was the “set up” he suggests. The late application for the report does not affect my finding that the photograph of the damage to the other vehicle is either the wrong vehicle, or the correct vehicle, but does not depict all of the damage.
24 Mr Scanlon’s next point is that, when questioned about the Claim Form,[15] and the fact that it referred only to the transport accident, Mrs Wright’s response was that she was on significant pain-relieving medication at the time as a result of the shoulder surgery, could not write, and given her mental state, did not read the Claim Form thoroughly. Mr Scanlon said this stood in stark contrast to the clear evidence of Mr Dellalana, whose operation report noted surgery had occurred on 12 June 2014. He said Mrs Wright had not been truthful, so as to give an explanation of why the Claim Form was completed in the way it had been.
[15]DCB 5
25 I accept that Mrs Wright’s surgery did not occur until 12 June 2014. Thus, when she attempted to explain the WorkCover Claim Form, she was attempting to find an excuse to explain its contents. I accept this does affect her credibility, although I do not regard it as a “killer” point. Mrs Wright’s explanation is that she was called in to complete the Claim Form by Mrs Arnold. It was not filled out in her handwriting although, presumably, it was filled out by someone to whom she gave instructions. A better explanation is that the Claim Form reflects an uncertainty in her mind as to whether, in May 2014, the source of her problems was the transport accident or the assault.
26 Finally, Mr Scanlon said, that in the plaintiff’s most recent affidavit,[16] she deposed that, by the time of the assault, she had all but recovered from her neck and arm pain, although had intermittent symptoms. This, he said, again stood in contrast to what the plaintiff swore in her first affidavit, which was that she had significant discomfort in her neck and arms, with right arm pain, after the accident, which continued, including after her change of role in January 2014, when the keyboard work she was undertaking caused pain in her neck and right arm.[17]
[16]Plaintiff’s Court Book (“PCB”) 19
[17]PCB 36
27 While I accept there were some inconsistencies in Mrs Wright’s evidence, and that the WorkCover Claim Form mistakenly referred to the transport accident and not the assault, I do not consider Mrs Wright’s credibility was affected to such an extent such as to make me reject her evidence as the source of her problems. She impressed me with her evidence in the witness box. She attempted to respond to questions in the manner of an honest witness. She made some concessions. I did not assess her as a person prepared to file a false report of the circumstances of the collision so as to benefit her compensation claim.
The injury and consequences following the assault
28 In order to determine what injury and consequences flowed from the assault, it is necessary to examine the transport accident and the injury which the plaintiff suffered.
29 Following the transport accident, Mrs Wright said she had some soreness in her neck, which she said largely settled over the following days. She returned to her normal nursing duties on a full-time basis. Over the weeks that followed, she said she had significant discomfort in her neck and arms, with right arm pain. She said “[t]here didn’t seem to be any particular incident that caused this”.[18] She took over-the-counter medication, but did not seek medical treatment.
[18]PCB 36
30 Her role with Bendigo Health changed in January 2014. She was required to undertake extra work with more overtime. She said her neck and right arm pain increased. She was questioned closely in cross-examination as to why she did not make a WorkCover claim. She said she did not think she had suffered an injury in the accident, and expected the pain and restriction to resolve.
31 According to the clinical records of Bendigo Primary Care Centre, Mrs Wright’s general practice, she attended a number of doctors at that clinic from September 2013 until February 2014. According to the notes, there was no complaint made about neck or shoulder pain, nor any reference to the transport accident. In fact, on 29 November 2013, while attending a doctor for calf pain, a note records “no shoulder pain or weakness no early morning stiffness or joint pain”.[19]
[19]TAC CB 17
32 Over that same period, she made several entries in the VHIMS[20] system, a reporting system for persons injured in their employment with Bendigo Health. These were for unrelated matters. She said she was well aware of the need to make a claim on the system if injury was suffered. She said, at the time of the assault, a “seclusion report” was made. This was a report raised where a patient was placed in seclusion in a ward of the hospital. She did not think it recorded any injury to her. The reason she did not file a claim after the assault was that in May 2014, when requested to do so by Ms Jenny Arnold, a WorkCover officer, she did complete a WorkCover claim. When it was put to her that the Claim Form referred only to the transport accident, and a rotator cuff injury to her right shoulder as a result, she said that although the form was signed by her, it was not completed in her handwriting, and that until recently she had thought that the Claim was in respect of the assault. It is noted the Claim Form is headed “WorkCover – Worker’s Injury Claim Form”.
[20]Victorian Health Incident Management System
33 Mrs Wright attended the Bendigo Primary Care Centre on a number of occasions after the assault. On 28 February 2014, she attended in relation to a thyroid problem. There was no reference to the assault. The next entry is 2 May 2014, where Dr Randhawa recorded that she had been involved in a car accident six months before and sustained whiplash injury from the seatbelt. The note further records:
“didn't seek medical advise (sic)
since then getting pain in right arm
aches all the time , and then sometimes gets shooting pain in right arm on certain movements
have been seeing osteopath for past few weeks - not helping
no cpine [cervical] tenderness
right shoulder pain , mainly on extension and elevation of arm
chest clear b/l
rotator cuff injury?”[21]
[21]DCB 10-11
34 In her most recent affidavit, Mrs Wright said that by the time of the assault, she had all but recovered from the neck and arm pain from which she was suffering following the transport accident. She said that neck pain came on after the assault and became progressively worse. She took three weeks leave and hoped that the situation would improve. She said she was advised by the Director of Nursing, Ms Arnold, to get a WorkCover Certificate and go to the doctor. She was referred to a physiotherapist and then sent for an MRI scan to her right shoulder.
35 Dr Randhawa, in May 2014, referred Mrs Wright to Mr Dallalana, orthopaedic surgeon. He received a history[22] that she had developed neck and bilateral arm pain after a motor vehicle accident in September 2013.
[22]DCB 70
36 Ms Arnold swore several affidavits.[23] She was the nursing unit manager for Bendigo Health at the time. She confirmed there was no entry in the VHIMS system of the assault, despite Mrs Wright having registered a number of other incidents. She said, further, the Claim Form was not completed by her, although was signed by her. She annexed a Certificate of Capacity, dated 2 May 2014, in which Mrs Wright’s treating general practitioner certified her as fit for modified duties from 2 May to 2 June 2014.
[23]DCB 18, 39
37 On 30 May 2014, orthopaedic surgeon, Mr Dellalana, wrote to Dr Randhawa and noted:
“Thank you for referring this 54 year old right hand dominant nurse manager of the Inpatient Psychiatric Unit at Bendigo Hospital with the problems of pain and stiffness in the right shoulder. She developed neck and bilateral arm pain after a motor vehicle accident in September 2013 following which it localised to the right shoulder region. She has had good physiotherapy but without any effect on her overall symptom picture to now.
… .”[24]
[24]PCB 70
38 He wrote in similar terms to the WorkCover insurer, seeking approval for arthroscopic surgery.[25]
[25]PCB 71
39 On 12 June 2014, Mr Dellalana undertook an arthroscopy involving anterior capsular release and repair of minor rotator cuff. Capsulitis in the area was noted.
40 Mrs Wright moved to New South Wales. According to a report of her treating general practitioner, Dr Peng Chan, of 24 November 2017:
“Ms wright injured both shoulder in 2013 [scil 2014] in a work related incidence, she was treated and her symptoms settled and able to return to full duties. Treatment was stopped then. But her injury never return to pre injury state and slowly progressing to current state and symptoms flared again. That’s why there is a gap in treatment.
… .”[26]
(sic)
(The reference to 2013 should be 2014.)
[26]PCB 62
41 Dr Chan referred Mrs Wright to Dr George Kirsh, an orthopaedic surgeon. He obtained the following history:
“She gave a history of being involved in a motor vehicle accident in September 2012, five years ago, and whilst she didn't have any problem after this was then assaulted at work in 2013. She had pain in both shoulders and stiffness and whilst the left one settled the right did not and she had an operation for this which sounded like an arthroscopic release. She now has had pain in the left shoulder since March and despite anti inflammatories and a cortisone injection has not settled. Her range of movement has been diminishing.
… .”[27]
[27]PCB 63
42 Mrs Wright says she has continued to suffer pain and restriction, more in the right than the left shoulder, through to the present time. She takes a range of medication and claims her capacity to undertake her nursing duties is significantly restricted.
43 The plaintiff tendered the reports of a number of other treating practitioners. Those reports are in relation to more recent treatment and throw little light on the issue of causation.
44 Likewise, the reports of various consultant practitioners are of limited assistance. Dr Joseph Slesenger provided a report of June this year. He did not examine the plaintiff but worked from various documents and reports. Among those materials were said to be a report of Mrs Kirrily Careedy, a physiotherapist, dated 24 December 2014. Dr Slesenger noted that that report referred to a history of the motor vehicle accident in October 2013 and an injury to Mrs Wright’s right shoulder in the assault of February 2014. This report was not tendered and thus is of little relevance.
45 Dr Slesenger considered the transport accident was a plausible cause of Mrs Wright’s cervical spinal pain, and the assault a plausible cause of her right shoulder impairment, which led to difficulties with the left shoulder.
46 Dr David Elder provided a report to the WorkCover insurer of July 2018. He examined Mrs Wright. She provided a history of separate injuries in the transport accident, where she said she had some neck pain which resolved the next day and upper limb discomfort in both arms, which commenced about six weeks after the transport accident. She said that the “May injury” was the assault in February 2014. She provided a further history of ongoing treatment with physiotherapy and referral to the orthopaedic surgeon following the assault. Dr Elder noted that the insurer had accepted the right shoulder claim.
47 Among the materials in the Court Books was a report of Dr Roger White dated 22 October 2014. It would seem that Dr White examined Mrs Wright at the request of the WorkCover insurer. The report refers to a history of both the transport accident and the assault. Mrs Wright was cross-examined on the history,[28] the report was not tendered. The report concludes:
“There appear to have been two precipitating incidents: the motor vehicle accident as claimed 6th September 2013, and then the incident involving an agitated violent martial arts black belt psychotic patient.”[29]
[28]T60, L24
[29]TAC CB 38
48 Mr Garry Grossbard, orthopaedic surgeon, provided a report in May this year, having not examined the plaintiff, nor taken a history from her. Again, he received various documents upon which his opinion was based. His opinion is:
“I believe this lady suffered a soft tissue injury to her neck as a result of the motor accident of 6th September 2013. Initially this caused minor inconvenience but was followed by recurrences of neck pain. The pain described as radiating into the shoulder is probably pain referred from the cervical spine, in that Mrs. Wright referred to pain in the trapezius and interscapular areas. Similarly, the pain was made worse with movement of the cervical spine and with activities generally associated with cervical spine pain such as long periods of sitting at a computer or looking down for long periods of time.
This lady began to notice right shoulder pain increasing before the incident of February 2014. The pain in her neck and right shoulder became significantly increased following this incident.
I suspect Mrs. Wright was developing a capsulitis on the right side, which was the cause of her increasing shoulder pain and restricted motion. This was highlighted and increased following the incident in February 2014 and was sufficient to prompt surgical intervention including an anterior capsular release. This surgery did improve the situation to the extent Mrs. Wright was able to resume working, although in a more limited capacity.
… .”[30]
[30]PCB 95
Analysis
49 It is no easy matter in this application to unscramble precisely the events of 2013 and 2014. I have concluded that in the transport accident Mrs Wright suffered a relatively mild injury to her cervical spine, and possibly the right shoulder, from which she had some symptoms which were not particularly debilitating until the time of the assault. I further conclude that Mrs Wright suffered a more significant injury to the right shoulder in the assault and which has been largely responsible for the right shoulder injury and the consequences which have flowed through to the present time. I say that for the following reasons:
50 Following the transport accident, Mrs Wright sought no medical treatment and continued working without taking medical leave. While she was troubled by some pain and restriction to the neck and right shoulder, particularly with keyboard work, she was able to resume her full-time duties without interruption. In fact, by January 2014, she was working different duties with increased hours.
51 The assault of February 2014 was a violent incident. I accept her explanation that she was thrown against a wall by a large and powerful man. Such an incident could easily cause a significant shoulder injury. It was not until this incident that any form of medical treatment commenced. Albeit she was able to remain working, she had three weeks or so holiday leave and commenced physiotherapy. In around May, her general practitioner referred her to an orthopaedic surgeon, who undertook surgery. Over the period since, she has been able to work only on modified duties and reduced hours. I accept that by favouring her left arm she has developed left shoulder problems, which are a consequence of the right shoulder injury she suffered in the assault.
52 Although somewhat unusual, I accept her explanation that in filing the WorkCover Claim Form with its reference only to the transport accident, she was not the one who completed the form, and paid little attention to its contents.
53 The simply chronology of events makes it more likely that the assault was the more significant cause of her problems than the transport accident.
54 Although the reports of Mr Dellalana refer to only the transport accident as the source of her shoulder problems, I am of the view that it is likely there was some confusion in her mind as to precisely what the source of her problems were. I accept her explanation that, until around that time she thought that the problems in her neck and shoulder would go away, and she did not give clear thought to working out whether the assault or the transport accident was the source of the problem.
55 Finally, while I have some reservations about her credibility, I generally accept her evidence that the pain she suffered in the assault was far more significant and different from that which she suffered in the transport accident.
56 In those circumstances, I am satisfied that the assault was the cause of her right shoulder problems. Given Mr Scanlon’s concession, it is not necessary to analyse further all of the evidence as to the effect upon her of those problems.
57 I shall grant leave for proceedings in respect of the assault, and make consequent orders.
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