Young v Victorian WorkCover Authority
[2020] VCC 879
•7 February 2020
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01620
| STEPHEN JOHN YOUNG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 22 January 2020 | |
DATE OF JUDGEMENT: | 7 February 2020 | |
CASE MAY BE CITED AS: | Young v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 879 | |
JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the right shoulder – whether the pain and suffering consequences are “serious” – creditworthiness and reliability – potentially contradictory entries in clinical notes
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Woolworths Ltd v Warfe [2013] VSCA 22
Judgement:The plaintiff has leave to bring a proceeding to recover damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Macnab with Mr A Saunders | Maurice Blackburn |
| For the Respondent | Mr S Smith QC with Ms K Manning | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff was employed by Linx Cargo Care Pty Ltd (“the employer”) as a truck driver. On 18 April 2016, the plaintiff lifted a heavy tarpaulin up onto the trailer of a vehicle when he felt a tearing sensation inside his right shoulder. He estimates that the tarpaulin weighed about thirty-eight kilograms.
2 There are essentially three issues which the defendant raised in answer to the plaintiff’s application. Firstly, the medical evidence demonstrates that the plaintiff suffered a relatively minor injury to his right shoulder, unlikely to be responsible for a significant impairment of the function of his right shoulder. Secondly, some of the consequences of the impairment of function claimed by the plaintiff are not causally related to the impairment of function of the right shoulder, and, thirdly, there are issues of the plaintiff’s creditworthiness and reliability.
The Plaintiff’s medical treatment
3 The plaintiff experienced strong pain in his right shoulder joint. After reporting the occurrence of the injury, he was referred to Dr Chang, general practitioner, who first saw him on 18 April 2016. He organised for imaging to be undertaken of the plaintiff’s right shoulder, and based upon the imaging and his clinical examination, he considered that the plaintiff had suffered a high-grade tear of the long head of the biceps tendon proximately which was considered to be complete.
4 The plaintiff then saw Dr Loughnan, general practitioner, who practises from the same clinic as Dr Chang. He referred the plaintiff to Mr Brown, orthopaedic surgeon, for opinion. Mr Brown saw the plaintiff in April 2016. He referred him to have an MRI scan. He considered that it demonstrated that the rotator cuff was intact, with labral tearing, which he considered to be an incidental finding. He considered that the plaintiff would return to normal functioning and strengthened biceps over time.
5 Dr Chang referred the plaintiff for a second opinion to Mr Eng, orthopaedic surgeon. Mr Eng saw the plaintiff in July 2016. On examination, he found tenderness along the long head of the biceps groove, but otherwise his examination was relatively unremarkable. He inspected the MRI scan, which he considered showed a rupture of the long head of the biceps with 8 centimetres of retraction. He also referred to some other findings on the MRI scan which led him to say that he was uncertain how much of what was shown on the MRI scan was “old and how much is new”.
6 Mr Eng noted that the plaintiff told him that he was slowly improving week to week. It was on that basis that he considered that surgery would likely give the plaintiff an uncertain outcome. He did not consider that surgery was warranted at that stage; however, if his symptoms plateaued or the plaintiff felt that he could not return to work, then surgery would need to be considered. Otherwise, he considered that the plaintiff had the option of pursuing a functional rehabilitation program with his physiotherapist and a graduated return to work.
7 The plaintiff was absent from his employment with the employer until July 2016. He was still experiencing what he described as setbacks, relapses and ongoing pain and weakness in his right shoulder. He returned to work on modified duties. The symptoms he continued to experience led him to return to see Mr Eng on 31 October 2016. He had an injection of cortisone into his right shoulder on 17 November 2016. It was ineffective. The employer terminated his employment in March 2017. It occurred for reasons unrelated to his discharge of his modified duties. He returned a positive drug test, and was driving at a speed in excess of the relevant speed limit. These were infractions which breached the employer’s drug and performance policies.
8 The plaintiff obtained alternative employment with Economix Pty Ltd in May 2017. He was employed as a driver of heavy transport vehicles; however, it did not involve any manual loading or unloading. The plaintiff continued to experience the same symptoms in his right shoulder. He was referred to have a further ultrasound on 21 April 2017. He had a second injection of cortisone into his right shoulder on 11 May 2017. It gave him some temporary relief. He was last reviewed by Mr Eng on 30 October 2017.
9 The plaintiff obtained a job with Derham Transport on 31 October 2017. It involved the same type of work that he was doing with Economix Pty Ltd. The difference was that he was paid $25 per hour with Economix Pty Ltd, but at a higher rate of pay with Derham Transport of $35 per hour. The plaintiff ceased work with Derham Transport in December 2018. He was out of work until April 2019, when he obtained work with Mad Bros Earthmoving, driving a 60-tonne truck and trailer. He struggled with that employment because it worsened his right shoulder symptoms. He then worked for a construction company known as Hickory for about three or four weeks. He left that employment because of his concerns with its occupational, health and safety standards. In August 2019, he obtained work with an environmental contractor known as Sevrin.
10 The duties which the plaintiff undertakes with Sevrin involve watering and maintaining landscapes for the Moonee Valley City Council. He started working there on 28 August 2019. He managed to get his partner, Shani, a job with Sevrin. She began working with Sevrin in October 2019.
11 The plaintiff was examined about the duties he performs with Sevrin through cross-examination and examination-in-chief. Essentially, he works in a crew of two people, and sometimes three. His working day commences at a depot in Brooklyn. From there he drives a 6-tonne truck to various workplaces within the municipal district. The work involves planting trees which are in 20-litre pots and sometimes in plastic bags. He digs a hole into which the tree is then planted. Additionally, the job involves maintenance work – placing mulch around trees, watering and fertilising trees.
12 The plaintiff described the impairment consequences which he says have resulted from the impairment of the function of his right shoulder. I propose to set them out here before turning to the medical evidence of the medico-legal assessors, and the cross-examination and re-examination of the plaintiff relevant to the challenge made that some of the impairment consequences are unsustainable:
·Constant pain which varies between annoying dull pain to very sharp high level pain. He estimates that his pain is generally 4 out of 10, and if he suffers a flare-up of pain, it can go up to 7 to 8 out of 10.
·The pain varies, depending on activities in which the plaintiff engages and certain types of movements. He avoids activities involving heavy lifting or repetitive strenuous use of his right arm.
·The pain worsens if he lifts his right arm above shoulder height and reaches out in certain directions.
·He has lost strength in his right shoulder.
·Definition of the muscles in his right shoulder and right arm have altered. He now experiences a sensation of the muscles feeling knotted. He also experiences swelling in his right arm.
·His sleep is disturbed. He experiences a throbbing pain in his shoulder and biceps every night. It wakes him between two, three and four times each night. It takes him half-an-hour to an hour to get back to sleep.
·He paces himself when engaged in domestic activities around his home. Overactivity in that setting can result in him needing to rest and take extra painkillers.
·He is less able to undertake gardening work, such as hedge cutting and using a Whipper Snipper. Most of his gardening activities now are limited to maintaining indoor plants.
·He is no longer able to surf. It is an activity he began when he was seven years of age. He described it as being a huge part of his life. He surfed up to three times per week.
·He is less able to ride a motorcycle. He sold two dirt bikes, but has retained one road bike. He rides it a couple of times a year.
·He is less able to play physical games of sport with his children because of a need to protect his right shoulder; for example riding dirt bikes, surfing and playing cricket and football with them.
·He avoids camping trips with his children because he struggles to put up a tent and finds it difficult to sleep rough.
·He used to go fishing with his children, usually from a jetty, about every fortnight through summer. He has been fishing three or four times. He gave an example of fishing off a pontoon at Aireys Inlet. He experiences difficulty lifting and carrying gear from his car. He now casts a line using his left arm.
·He is restricted to doing lighter work when compared to the work he was undertaking before he suffered injury.
·He is sore after a day at work. He relies on his partner to help him undertake some of the physical aspects of his work. He said he is not sure whether he will continue doing the work with Sevrin.
·The need to use painkilling medication – Panadeine Forte, Voltaren and Panadol.
13 The plaintiff submitted that he has now been reduced to performing work which is significantly less onerous than he previously performed with the employer. The nature, extent and gravity of the impairment consequences interfere with almost every aspect of the plaintiff’s life from the pain he experiences, the limitation of movement resulting from the pain, interference with a restful night’s sleep, interference with domestic, gardening, sporting and recreational activities, which he enjoyed pain free and without limitation prior to suffering the injury to his right shoulder. Essentially, the plaintiff’s case was that he has now been reduced to someone who can engage in work which is not provocative of significant aggravation of his right shoulder, and otherwise has lost a significant portion of the life he enjoyed before he was injured.
The Defendant’s case
14 The defendant submitted that the opinions of the medico-legal assessors who examined the plaintiff on its behalf should leave me in no doubt that the plaintiff’s right shoulder injury could not have left him with the impairment of function which he claims.
15 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 19 July 2017. He considered that the plaintiff had suffered a rupture of the long head of the biceps tendon and was suffering from rotator cuff degeneration with mild bursitis. He considered that the plaintiff had regained reasonable function in his shoulder with some lack of strength and mild restriction of movement. He considered that he could work as a truck driver, but was limited in his capacity to engage in heavy lifting and overhead activities.
16 Mr Jones, orthopaedic surgeon, examined the plaintiff on 13 March 2018 and 8 October 2018. Essentially, he arrived at the same conclusion relevant to the description of the injury as Mr Shannon. On the second occasion that he examined the plaintiff, he found no evidence of muscle wasting; some tenderness over the right acromioclavicular joint and, to a lesser extent, in the subacromial region of the right shoulder. He considered that the plaintiff’s range of motion was normal and equal to the range of motion in his left shoulder. He did note evidence of rupture of the long head of the biceps tendon and bunching of the muscle belly with active and resisted flexion of the right elbow. Mr Jones appears to have accepted the plaintiff’s account of the extent to which the impairment of the function of his right shoulder interferes with his surfing and swimming, and appears to have accepted that the plaintiff is performing work which does not require him to undertake any loading or unloading.
17 Mr Chehata, orthopaedic surgeon, examined the plaintiff on 15 October 2019. Essentially, he arrived at the same conclusion relevant to the description of injury as Mr Shannon and Mr Jones. On examination, he found a symmetric range of motion, and a full range of motion but with no restrictions. He appears to have accepted that the plaintiff has difficulty sleeping on his right side and has otherwise stopped surfing and paddling. Apart from that, he did not think there was much change in the plaintiff’s right shoulder when a comparison is made between what he was like before he suffered injury and subsequently. He did not think there was much effect on the plaintiff’s social and occupational functioning from a physical perspective.
18 Mr Miller, orthopaedic surgeon, examined the plaintiff on 31 May 2018 and again on 4 December 2019. Essentially, he arrived at the same conclusion relevant to the description of injury as Mr Shannon, Mr Jones and Mr Chehata. On the second occasion that Mr Miller examined the plaintiff, he noted a number of things of significance – firstly, that the plaintiff complained of ache, discomfort and pain in his shoulder which was worse with repetitive activities, overhead activities and aggravated by physical work activities. He noted that the plaintiff was using Voltaren and occasionally, Panadeine Forte for pain relief. On examination, he found diffuse tenderness and swelling in the region of the acromioclavicular joint; clinical features of a ruptured long head of biceps and distal migration of the muscle belly; mild irritability during shoulder movements, and weakness of elbow flexion and shoulder flexion.
19 Mr Miller considered that the plaintiff had been treated appropriately, and would require ongoing conservative treatment which might include pain management and rehabilitation. He considered it was unlikely that the plaintiff would come to surgery. He considered that the plaintiff would have difficulty engaging in work which involved large amounts of pushing, pulling, lifting and operating heavy plant equipment, a reduction in the use of his right arm, difficulty with repetitive use of his right arm, and difficulty with overhead activities. He added that the plaintiff would have difficulty operating a heavy truck, but noted that he was undertaking lighter truck driving work, which he was able to tolerate.
20 Mr Miller then went into some detail relevant to the plaintiff’s mobility, personal relationships, home and work activities and leisure activities. He did so in the context of how the impairment of the function of the plaintiff’s right shoulder would interfere with those sorts of activities. He noted that the plaintiff would have difficulty driving heavy vehicles. He noted that he was struggling with heavy domestic activities, and he noted that the plaintiff would have a reduction in his capacity to engage in surfing, golf, bike riding and playing sport with his children.
21 Mr Miller’s two reports are certainly more comprehensive in the history he obtained from the plaintiff relevant to the work the plaintiff is presently undertaking and his non-working activities, but there is a consistency in his observations when compared with those made by Mr Shannon, Mr Jones and Mr Chehata, but not in the detail obtained by Mr Miller.
Preliminary conclusions
22 I will start with a trite observation that a serious injury application is not trial by medical practitioner, but trial by judge. There can be no doubt at all that the medical evidence serves an important purpose in defining the compensable injury and the impairment of the function resulting from the injury. The medical evidence is also useful in determining whether the consequences claimed by the plaintiff are within keeping of what one would expect from a particular impairment of function.
23 It is relevant to keep that in mind, because the defendant concentrated on the results of examination by each of the medical assessors, and the opinions of Mr Shannon, Mr Jones and Mr Chehata that the injury and the impairment resulting from it were mild and unlikely to cause the degree of consequences relied on by the plaintiff. Mr Miller’s opinion, however, demonstrates that he considered that the injury had caused a reasonable level of impairment and that the consequences which he understood resulted from the impairment were verifiable and acceptable.
24 After reading the plaintiff’s affidavits and his oral evidence, and in the context of the medical evidence which I have analysed, I have concluded that the consequences of the impairment of the function of the plaintiff’s right shoulder are “serious” when the relevant comparison is made with like impairments. I am not convinced that the attack made upon the plaintiff’s case by the defendant demonstrates otherwise. I will elaborate on why I have reached that conclusion after dealing with the defendant’s case.
The Defendant’s case
25 I have dealt with part of the defendant’s case which is a reliance upon the examination results and opinions of Mr Shannon, Mr Jones and Mr Chehata. Additionally, the defendant submitted that there are a number of consequences which I should not be satisfied about, and that when all of the consequences claimed by the plaintiff are considered, that they fall short of the statutory test of seriousness.
Psychiatric illness
26 The plaintiff suffered from an undoubted psychiatric condition which resulted in him suffering psychotic events accompanied by bizarre delusions. The plaintiff also fell into the use of ice (methamphetamine) which he has ceased using.
27 The plaintiff was cross-examined about his taxation returns and whether his mental health issues were a cause of an apparent reduction in his earnings in the financial years ending 2015, 2016 and 2017. In those financial years, he earned $41,780, $30,873 and $36,600 respectively. He was asked to compare that with the financial year ending 30 June 2018, when he earned $73,178. The plaintiff essentially said that the reason for that pattern in his earnings was twofold – firstly, that in the financial year ending 2016, his hours were cut down because of his right shoulder injury and he was suffering the consequences of a matrimonial breakdown with his wife of fourteen years. He denied that he suffered any significant mental health issues because of the breakdown of his marriage.
28 The plaintiff was cross-examined about his drug use and whether psychotic episodes were caused by his drug use in 2018 and going into 2019. He denied that was the case. He added that he was not given a diagnosis for the mental illness which troubled him at that time. The plaintiff admitted that the delusions he was suffering when under the influence of the psychotic episode were, for example, his phone being hacked, his car being tampered with, and the automatic garage door device being interfered with. He had also made attempts at suicide.
29 The plaintiff completely recovered from the effects of the psychiatric condition, and its consequences, some significant period of time prior to the hearing of this application without recurrence.
Motorcycles
30 One of the consequences claimed by the plaintiff was an interference with his ability to ride a motorcycle. He was cross-examined about an occasion when he allegedly did a “mono”; that is, raising the front wheel of a dirt bike off the ground as an instance of riding a motorcycle contrary to his claim of interference. He said that he did not deliberately do a mono, but revved the motorcycle, which resulted in the front wheel coming up, causing him to fall off the motorcycle. It was at that point in the cross-examination that he repeated that he had sold his dirt bikes and had one road bike in his possession. He added that he had not ridden his motorcycle for some time, and had probably ridden it a couple of times a year.
Gardening
31 Another of the consequences claimed by the plaintiff is interference with gardening, and more particularly, trimming hedges and using a Whipper Snipper. He was asked whether the interference he described occurred at the time when he was living in a rental property at Mount Duneed. The plaintiff conceded that the nature of the garden at that property did not require hedge trimming or the use of a Whipper Snipper. He was referred to his affidavit, where he said that he needed to avoid heavier tasks such as hedge trimming and using a Whipper Snipper, which was at the time when he occupied that property. He said he was in fact referring to a previous property he occupied for two-and-a-half years and his mother’s property where that sort of gardening work was required.
32 The plaintiff said that the majority of the gardening he engages in now is limited to indoor plants and a small courtyard, which is a passion which both he and his partner have.
Sleep
33 The plaintiff was referred to an occasion when he attended Mercy Health on 13 June 2018. He was cross-examined from entries in the clinical notes. He was asked whether he told an attending clinician:
·“Denied issues with sleep-reports sleeping 6-7 hours per night”.
·He was later asked whether he reported “poor sleep” one hour at a maximum on the first day and a couple during the second.
·During a home visit by an attending clinician he was asked whether he reported “Nil issues reported with sleep, feels his (sic) able to get off to sleep and articulates good sleep hygiene in regards to caffeine, nicotine and energy drinks”.
34 The plaintiff said he could not recall telling a clinician that he was sleeping six to seven hours a night nor that he had no issues with sleep, nor that he was having problems getting off to sleep. He repeated that he had suffered problems with his sleep since he suffered injury, and during re-examination, said that his mental health does not cause him any difficulties with sleep now and that the only thing that keeps him up at night is his right shoulder which wakes him and prevents him from sleeping.
35 The plaintiff was referred to further clinical notes which appear to have been made on 1 March 2019. He was asked whether he told a clinician “[his] sleep has been good”, and whether he identified that one of the early warning signs of relapse in his mental health was “altered sleep pattern”. The plaintiff said that he did report that his sleep had been good, and that he was aware that one of the early warning signs of relapse was an altered sleep pattern.
36 The plaintiff was referred to the clinical notes of the Pinnacle Medical Centre of 13 September 2019, which refer to the plaintiff suffering anxiety and “requesting something to calm/hel (sic) sleep”. The plaintiff said that he was requesting something to keep him calm because of anxiety to help him through a relationship issue that he was having at the time.
General activities
37 The plaintiff was referred to further clinical notes of Mercy Health made on 23 May 2019. He was asked whether he told a clinician that he “went on holidays with girlfriend to highlands at her house. Enjoyed the trip. Enjoyed doing gardening there, going out on walks, fishing etc.” He said that he remembered going on holiday for three days down the coast, where he did some fishing, but no gardening.
38 In another entry made on 1 March 2019, he was asked whether he told a clinician – “States he has been doing regular exercise, rides a bike, maintain (sic) his garden, does cooking, help in house chores.” He said that he did tell a clinician that he engaged in those activities, and he added that he would help where he could, which I took to be directed to gardening, cooking and helping with household chores.
Fishing
39 The plaintiff was cross-examined about his fishing exploits. Before he suffered the right shoulder injury, he would go fishing with his children off a jetty. He said he had not returned to fishing to the extent he engaged in beforehand, and had fished only once. The defendant emphasised that the plaintiff referred to carrying gear back and forth from his car as a problem associated with fishing, and did not say that the actual other physical actions involved in fishing were a problem. I did not take his answer to be as limiting is that.
Medical treatment
40 The plaintiff has not had medical treatment for some time. Apart from the use of medication, he has not returned to see any of his treating surgeons to determine whether he requires anything other than conservative treatment. He uses Panadeine Forte from time to time, Voltaren and otherwise over-the-counter medication as I have summarised earlier in these Reasons. It is probable that the plaintiff is unlikely to have surgical intervention.
41 The defendant submitted that I should not accept that the plaintiff has suffered any real interference with his capacity to work, with his sleep, with his capacity to engage in gardening and domestic activities, and that the fact he is working demonstrates that the impairment of function is mild, and does not result in the degree of consequences contended for by the plaintiff.
Conclusions
42 I think the burden of the evidence is that the plaintiff unquestionably has suffered a permanent injury to his right shoulder which impairs the function of his right shoulder to a fairly significant degree. Whilst he has movement in his shoulder and arm, there is unanimity in the medical evidence that he should avoid a range of physical movements with respect to any occupation he pursues, and no doubt they would impact upon his capacity to use his right shoulder and arm freely when engaged in social, domestic and recreational activities which were a part of his daily life and part of his enjoyment of life.
43 I accept the plaintiff’s evidence that he is now restricted to lighter work than the truck driving which he previously pursued. He is reduced to the lighter work he is now doing which, despite being lighter, continues to cause him pain, particularly at the end of a working day. It has left the plaintiff wondering whether he will continue in that work. I also accept that the plaintiff has reduced his involvement in a variety of social, domestic and recreational activities of the kind and to the extent I summarised earlier in these Reasons.
44 I do not accept that the medical records to which the plaintiff was taken impact upon the whole of the plaintiff’s evidence. I prefer the plaintiff’s evidence that he has interference with sleep, ability to garden, ability to ride a motorcycle, and ability to engage in recreational activities of the kind and to the extent which he has given evidence about.
45 I should say something about the medical records to which he was taken. The submission of the defendant was almost as if the cryptic medical records were in some way superior to the sworn evidence of the plaintiff. The warning has previously been sounded in Woolworths Limited v Warfe[1] and Philippiadis v Transport Accident Commission[2] that care needs to be exercised in relying on medical records because they tend to be a selective summary of the clinician’s own words of what the plaintiff may have said or the impression with which the clinician was left of what the plaintiff said. The records may be inaccurate through miscommunication or misleading through omission. That is not to say that they may in some circumstances constitute probative evidence.
[1][2013] VSCA 22
[2][2016] VSCA 1
46 The particular cryptic clinical notes seized upon by the defendant were short and were directed to the plaintiff’s mental health, and not his right shoulder injury. The plaintiff could not remember some of the entries, remembered others and accepted that he said certain things at certain times, but otherwise I was left with the impression that the plaintiff did not resile from what he deposed to in his affidavits and his oral evidence, both under cross-examination and re-examination.
47 I am satisfied, therefore, that the plaintiff has suffered an impairment of the function of his right shoulder with consequences of such magnitude that they effectively interfere with almost every aspect of the plaintiff’s life from work to his home life, and result in pain and suffering consequences and loss of enjoyment of life consequences which are consistent with the statutory test of seriousness when the relevant comparison is made with like impairments.
48 It is for these reasons that I will order that the plaintiff be granted leave to bring a proceeding at common law to recover damages.
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