Zabic v PPG Industries Australia Pty Ltd
[2019] VCC 877
•20 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-18-04766
| DUSAN ZABIC | Plaintiff |
| v | |
| PPG INDUSTRIES PTY LTD | Defendant |
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JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17,18,19 June 2019 | |
DATE OF JUDGMENT: | 20 June 2019 | |
CASE MAY BE CITED AS: | Zabic v PPG Industries Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 877 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left and right shoulders
Legislation Cited: Accident Compensation Act 1985
Cases Cited:
Judgment: Leave granted to bring proceedings for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr D Deahler | Carbone Lawyers |
| For the Defendant | Ms S Manova | Minter Ellison |
HIS HONOUR:
1 This application for “serious injury” leave with respect to pain and suffering consequences is less straightforward than some others. This 68 year old worker suffered a number of injuries in the course of a long period of employment by way of basically two handed, repetitive, manual labouring tasks at the defendant’s factory between 1981 and when he was terminated in 2005.
2 He suffered injuries to a number of levels of his spine as well as psychiatric or mental health conditions and these have already been the subject of a grant of a “serious injury” certificate by the insurer over a decade ago. He then issued common law proceedings. The Statement of Claim was issued on 19 June 2006 and made no claim for either shoulder injury.[1] A settlement then took place almost ten years ago in January 2010 and he received damages for both loss of earning capacity and pain and suffering consequences. That claim and the settlement back then was with respect to his spinal and psychiatric injuries and no claim was ever made for shoulder injuries.
[1]Defendant’s Court Book(DCB)31
3 As time went on he has suffered increasing symptoms in his dominant right shoulder as well as his left shoulder. He now seeks leave with respect to pain and suffering consequences from those two conditions. Radiology shows similar, objectively demonstrated pathology in the left and right shoulders. The left was operated on by way of sub-acromial decompression and supraspinatus repair at Monash Hospital on 24 June 2014[2] but no real reduction in pain eventuated. He feels the left shoulder is worse than the right.[3] Surgery has also been discussed on the right but he is fearful of a second shoulder operation and has not taken the surgical suggestion any further. In view of the less than optimum result on his left and some treatment issues I will discuss later, this is both an understandable as well as a reasonable decision.
[2]Plaintiff’s Court Book(PCB)16
[3]PCB17
4 As to the issues now before this court the defendant essentially articulated three.[4] Firstly, causation was disputed. This was with respect to the right shoulder condition but also to a lesser degree with respect to the left shoulder. It was admitted there was an aggravation to the left shoulder that was compensable but that aggravation had now ceased to have any effect. Secondly, there was a disentanglement exercise required. Even if causation was established any consequences of the impairment of the shoulders needed to be looked at and assessed separate from his other injuries and conditions for which he had been compensated already. Thirdly, even if the plaintiff did establish causation and successfully disentangled the consequences of his left and right shoulder impairments, they did not reach the bar of “serious injury”. This was said to be a “range” issue as is the common expression.[5]
[4]Transcript(T)27-30
[5]T29
5 Before proceeding any further it is worth making a few comments. At the outset I indicated my view about the appropriate way to look at the relevant body function. It was that a worker injuring both shoulders in the course of or due to the nature of employment over almost twenty five years of repetitive manual work involving mostly identical use of both upper limbs and with similar injuries to both, it was permissible to look at the shoulders bilaterally or in other words amounting to one body function.[6] The defendant, as befits the model litigant, responsibly and sensibly conceded that if causation was proved then in the circumstances of this case the two shoulders could be aggregated and considered as one body function.[7]
[6]T30-31,35-38
[7]T57
6 I then pointed out that the materials show the WorkCover insurer, CGU, in March 2017 accepted liability in writing for the right and left shoulders.[8] Indeed it then went on to pay s98C statutory compensation for permanent impairment of both shoulders as assessed under the AMA % guidelines. This acceptance of liability is evidence in favour of the plaintiff which I accept on the causation issue. It is an admission that is one part of the overall evidentiary material supporting my finding that both shoulder injuries are compensable injuries under the Act.
[8]PCB29
7 As it is a period of employment that commenced nearly forty years ago in 1981, this is a claim of some antiquity in terms of the “serious injury” jurisdiction . Due to the time that has passed since he was terminated in February 2005, I made it clear to the parties that the requirement to assess any impairment now in June 2019 meant greater assistance was gained from the more recent medical opinions.[9] Amazingly the defendant has not had Mr Zabic examined by any doctor on its behalf investigating physical injuries since 2008.[10]
[9]T32
[10]DCB86
8 Clearly as part of the relevant material in an exercise such as this, the original three affidavits in support of his first serious injury claim needed to be looked at.[11] Across many pages of very detailed affidavit evidence there is barely a mention of any shoulder symptoms let alone any injuries or conditions of consequence. These three affidavits describe spinal injuries at several levels and almost exclusively set out spinal symptoms. Some referred shoulder symptoms from spinal injury were mentioned but only in passing and in a few short words, as well as one incident in early 2003 when he said he injured his left shoulder but did not take any time off work and was not sure whether even reported the injury.[12]
[11]DCB2-22
[12]DCB11,13,19
9 He was taken through pages of very old and extremely brief clinical notes. Care has to exercised with these computer driven notes as they could not possibly record anything like all that was said between doctor and patient. In court Mr Zabic seemed to think some left shoulder injury had occurred as far back as 1989.[13] He demonstrated in court that he was moving four litre size tins of paint that were all in one box, four at a time, by pulling with both arms. This of course was part of his usual, repetitive, two handed job. So the probabilities are that if anything did occur that far back, and I cannot reach any conclusion about that, it resulted in no injury of any consequence as he just went on working full time in the same job for the next sixteen years.
[13]T48,50
10 Mr Zabic is a man who was very uncertain about dates and this was a very long time ago and would be difficult for anyone to remember. He also had referred in an affidavit back in 2005 to some right shoulder injury in 1975 when employed by an earlier company on the Melbourne underground.[14] Again this was of no relevance. In the end credit was not damaged by cross-examination.
[14]DCB3
11 What is clear, and the defendant did not argue to the contrary, is that the Form A which started the first “serious injury” claim back on 5 November 2005 only referred to the back and right leg as the subject injuries in that application. Form A is how the “serious injury” paperwork process starts between a worker and the WorkCover insurer.[15] Then what is also clear is that the Statement of Claim issued on 18 June 2006 following the grant of his serious injury certificate, only pleaded neck, back and psychiatric problems by way of injuries he sought damages for. He was ultimately awarded a settlement for these pleaded injuries and these injuries alone.
[15]DCB23-30
12 Accordingly whatever may have happened all those years ago in 1975, 1989 or 2003, his left and right shoulders were not the subject of that first serious injury application, nor the pleaded common law claim, nor the damages settlement he ultimately received and for which he signed a Release on 28 January 2010.[16] I give little weight to the evidence about those very early years. But the defendant’s own papers do reveal Mr Zabic reported shoulder pain in January 2004 in an Incident/Injury form.[17] The evidence establishes that on the probabilities he has similarly injured both shoulders as well as his spine due to the nature of and in the course of many years of heavy, constant, repetitive manual duties with the defendant.[18]
[16]DCB33-35
[17]DCB167
[18]PCB12
13 Cases such as this have been very often described as involving elements of fact, degree and value judgment. It has also been often said that the credit of the plaintiff as a witness will often be critically important. This is such a case. I have had the considerable advantage of both hearing and observing that demeanour of the worker over several days. He is quite a simple, straightforward fellow who is illiterate when it comes to reading and writing in English.[19]
[19]DCB21
14 Accordingly, at my suggestion, an interpreter was arranged to make sure that when he was being asked about documents some of which were ten or fourteen years old he understood what had been written and what was being put to him. His affidavits were read to him by the professional interpreter and I was satisfied he seemed perfectly to understand them. Not surprisingly, at times he was obviously very confused about some distant past dates and events. But I was satisfied that at all times he was attempting to tell the truth. In spite of his illiteracy and language difficulties I found him to be a reliable witness.
15 Late in these proceedings and in the course of final addresses, counsel for the defendant quite properly sought to tender an Incident/Injury form dated 8 January 2004 from the employer’s documents. It is incomplete and is only the front page of what is clearly a longer document. But on the face of what I do have, “Back and shoulder pain” were reported by Mr Zabic to his employer.
16 When taken to many past clinical notes that were years old, time and again he agreed he had suffered and still suffered neck, back and some hip pain for which much treatment had taken place. Some referral of symptoms went from the neck into the shoulder region but this plaintiff has very clear objective pathology shown in radiology of both shoulders. This was a reliable witness who was describing his shoulder pain and I am satisfied that Mr Zabic, who actually suffers the pains, can distinguish shoulder pain from some referred neck pain. Shoulders are very different body parts to the spine. In the end I accept his evidence he is suffering organically based shoulder pain that is constant and worse in the left than the right but is in both. He properly described his shoulder pain as “distinct and separate” to his spinal problem.[20]
[20]PCB17
17 In an application where pain is the major consequence relied on in terms of a pain and suffering claim, it assists to look at three matters in particular. First of all is what the plaintiff says about that pain and second, what he has done about that pain. Finally what the medical opinions are in that regard requires consideration. I accept Mr Zabic’s evidence that he continues to suffer from significant left and right shoulder pain that has persisted for many years. It is constant and he expressed it very directly: “The pain is present every day”.[21] Pain impedes basic activities of daily living such as showering and dressing which are things we just take for granted. Certainly spinal problems can impede some activities but these are just two examples of how the shoulder impairment affects him and it would not really matter how good or bad his spine was.
[21]PCB17,T134
18 Turning to what he has done about his pain and in particular the left shoulder, he has followed medical advice from a number of practitioners and pursued conservative treatment. He has generally been a compliant patient and that is about all a conscientious person can do when it comes to medical advice. He agreed to undergo surgery on his left shoulder on 24 June 2014. This not only involved the repair of soft tissues but cutting away some of the bone by way of sub-acromial decompression in addition to supraspinatus repair.
19 However it is clear his treatment journey has not all been smooth sailing as he was repeatedly critical of the insurer for failing to pay for all the rehabilitation he was supposed to have as part of the recovery program following his operation. His recovery was not supported properly.[22] In 2015 or 2016 the insurer ceased paying for his physiotherapy with Mr L Dunstan before it was complete. He then returned to that physiotherapy clinic recently on the back of the Medicare allowance that entitled him to five physio visits.
[22]T113
20 He was particularly unhappy with the insurer then advising him in 2016 to attend Victoria House for a multi-disciplinary team approach to rehabilitation. He went there for many hours over eight weeks and then they stopped paying. He went back three or four times of his own volition in 2017 but this rehabilitation did not recommence as he could not pay for it himself.[23] He had a cortisone injection guided by ultrasound on his right shoulder that he paid for himself. He was driven enough to issue proceedings in the Magistrates Court in 2015 or 2016 pursuing statutory WorkCover entitlements for his shoulders after receiving a denial of liability.[24]
[23]T109-110
[24]T124-125
21 All these frustrations played a part in his decision not to go to a surgeon, Mr Eugene Ek, who he was referred to recently regarding the prospect of an operation on his right shoulder. Mr Zabic more than once stressed in court how he was not going to proceed to surgery again in view of his recommended rehabilitation not being completed the first time because of the insurer’s attitude. So his decision, which I have already said was a reasonable one, was based on his fear of another disappointing result as well as a concern he would not be properly supported by way of full treatment recommendations being paid for. [25]
[25]PCB13,16
22 Sitting daily in this jurisdiction I do not need evidence to tell me that one of the best indicators of the level of pain is often a preparedness to undergo surgery. Sadly the result has not been what was hoped for and pain has continued in the left shoulder.[26] But even at the present time he is on a very serious regime of pain killers on prescription and over the counter. He still takes some medication for his spinal problems but takes Panadeine Forte 2 to 4 tablets a day, Panadol four times a day and Panadol Osteo 4 to 6 tablets daily for his shoulder problems. He ceased Lyrica as the side-effects were too strong.[27]
[26]PCB16,T134
[27]PCB17
23 Dealing with the medical opinions, I raised with counsel the advantage of the more up-to-date reports in relation to making an assessment now, fourteen years after his employment was terminated.[28] From the outset it needs to be noted that the various radiological investigations that included X-ray, Ultrasound as well as MRI investigations over many years from 2004 to 2019 show clear, similar pathology and damage in both his left and right shoulders.[29]
[28]T32
[29]PCB40-51
24 Of the doctors his general practitioner, Dr Di Carlo, knows him best of all and has been treating him from 2004 to the present time. She reported in 2014, 2015 and on 29 March 2019.[30] Her reports are brief and in 2014 she described traumatic tendonitis of the left shoulder with shoulder ache persisting.[31] In 2015 she repeated the left shoulder diagnosis. Then in the recent 2019 report she described the bilateral shoulder pain more fully and how it had become an increasing problem.
[30]PCB56-59
[31]PCB56-57
25 While he had chronic back pain which he had suffered for years it was clear shoulder pain became an increasing problem and the local doctor described it as “Recently, he has had an escalation of his bilateral shoulder pain…”[32]. An MRI confirmed objective pathology and she referred her patient to an orthopaedic surgeon specialising in upper limb conditions for an opinion saying he may require surgery. However as I have already discussed this was a referral to Mr Ek that the worker has made a reasonable decision not to pursue.
[32]PCB59
26 Without hearing from any doctor in this case I read Dr Di Carlo as being very well positioned to provide an opinion about her long-standing patient. I accept her opinion on causation that as a result of his work over a long period of time he has suffered injuries to both shoulders and they are productive of pain. The level of that pain is sufficient for her to consider further surgery and that is an indication of severe pain. On causation I could not express it any better than she did when after describing how attention in the past had been directed more to his spinal pain she said “It was overshadowed the issues he had with both shoulders for many years.”[33]
[33]PCB59
27 Mr T Tran, Orthopaedic Surgeon, had seen the worker in 2013 at the referral of Dr Di Carlo and only reported once. But he did say “He has multi-focal pain problems, with the problem being in both of his shoulders. They have been symptomatic for around eight years. He has had secondary neck pain.”[34] This is now a very old 2013 report but I accept his opinion was supporting a causative link to his work in regard to both shoulders. Clinically he found restrictions in both shoulders with bilateral symptoms and spoke of surgical reconstruction coming up and a referral to Monash Health. He really made no other comments that take the matter any further.
[34]PCB54
28 Another report from a relevant treater is from Mr L Dunstan, physiotherapist. He has treated Mr Zabic over many years commencing on 15 August 2014. As to causation he could not have been clearer as his opening opinion in his April 2019 report was to diagnose full thickness tears of tendons in the right shoulder and large re-tearing in the left shoulder with bilateral shoulder pain.[35]
[35]PCB62
29 In answer to specific questions put to him by the solicitors he then went on to disentangle the two shoulders and other conditions in a way that supports each shoulder impairment being a “serious injury” in its own right. While I agree with those opinions from a practitioner who is still treating Mr Zabic in 2019, and so is well qualified to comment as to the right and left shoulder individually, the proper approach here is to look at them bilaterally as one body function.[36]
[36]PCB63-64
30 It is not necessary to repeat his lengthy and thorough 2019 opinion in any further detail save to say he specifically commented on pain and suffering and loss of enjoyment consequences of the shoulder injuries. I accept his opinion as sufficient for me to conclude the consequences can be fairly described when looking at the range of possible impairments as being very considerable.
31 No more needs to be mentioned than his statement “Over the five years that I have known and treated Mr Zabic, he has intermittently reported how his shoulder injuries/conditions have changed his life completely. He is unable to participate in his usual work, hobbies, sport/recreational activities, social activities. He also needs assistance with many of his activities of daily living.”[37] True it is that some of these activities have been very seriously compromised by his spinal pain, but that does not take away from the fact that the constant pain suffered over many years in both shoulders remains as a distinct consequence that meets the test of “serious injury”.
[37]PCB67
32 The practitioners I have referred to have been charged with the treatment of Mr Zabic’s shoulder conditions as opposed to providing a medico legal opinion. Two of these practitioners have seen him over many years. I accept the evidence of this body of treaters on the issues of causation and disentanglement as well as supporting my conclusion that the bilateral shoulder pain causes an impairment of body function that is very considerable in terms of pain and suffering and loss of enjoyment of life. These are up-to-date opinions that I prefer to the dated and mostly single examinations by medico-legal people on both sides.
33 There is a medico-legal opinion from Mr P Mangos, general surgeon, but it was back in January 2005. It supports symptomology in both shoulders “the left one much more than the right and there is clicking present on movements of the left shoulder” but apart from supporting causation by his work, this dated opinion does not assist now over fourteen years later.[38]
[38]PCB69-73
34 Another surgeon, Mr T Kossmann, also only saw the worker on one occasion. At least that was in January 2019. Mr Kossmann’s reports are quite lengthy and involve an investigation and comment on the spinal problems as well as the two shoulder injuries. He set out significant injury and pathology in both shoulders caused by the employment. It does not need repetition but he saw objective evidence of serious damage in both.[39]
[39]PCB82,83
35 He then went on to disentangle the two shoulders and he described restrictions in many, very wide ranging daily movements and activities that are usually just taken for granted and arise from in each shoulder injury on its own. This amounts to an opinion I accept that both shoulders, even individually would qualify for “serious injury” status in terms of pain and suffering consequences.
36 However the proper approach is to look at the shoulders together as one body function in this case and I accept his comment “Mr Zadic is restricted in relation to social, domestic and recreational activities. I believe that this incapacity will continue for the foreseeable future.”[40] Obviously a number of the wide restrictions Mr Kossmann spoke of would be affected by a spinal condition, but many are not and are peculiar to the functions of the upper limbs. Shoulder pain is not neck pain.
[40]PCB86
37 A medico-legal report obtained by the insurer from Mr P Scott surgeon, was tendered by the plaintiff. It is six years old now. In 2014 he diagnosed injury to both shoulders. He found left and right shoulder lesions and accepted they were caused by his work.[41] He said the shoulder problems “had continued without resolution to this point”.[42]
[41]PCB102-103
[42]PCB104
38 The medico-legal surgeons tendered by the plaintiff support the treaters as to causation, disentanglement and my finding of “serious injury” in regard to the bilateral shoulder impairment, as well as to each shoulder looked at individually.
39 The defendant relied on a Medical Panel Opinion and the Reasons given but this was over twelve years ago back in 2007. The thrust of the defendant’s submission was that the Panel concluded there was no specific shoulder injury diagnosed.[43] The absence of complaint about specific shoulder injury was also relied on. However this is not persuasive.
[43]DCB78
40 Medical Panels are given a particular question or questions that are settled by the parties and/or by a court. The relevant question in 2007 was “What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed back and neck injury?”[44] Not surprisingly the Panel then only gave its opinion about the neck and back. The absence of specific mention of left and right shoulder injuries is neither here nor there in terms of this application now.
[44]DCB78
41 The defendant also tendered a report from Mr J Hooper, surgeon, that is over eleven years old. He reported in May 2008 that the worker had “aggravated wear and tear changes in his left shoulder”.[45] Mr Hooper did not refer to the right shoulder. Interestingly in a case in which he was principally asked to consider spinal impairment he said “I think the shoulder problems are not coming from the neck, they are coming from the shoulder ..”.[46] He went on to say there was a cuff tear in the shoulder and he doubted surgery would help. He was right about that. This dated report does not take the matter any further now but it does support a causative link with Mr Zabic’s employment.
[45]DCB88
[46]DCB89
42 A single report from Dr C Thomas, pain specialist is of unclear status. He seems to have seen the worker back in 2004 at the request of WorkCover and then later on, in 2014, he seems to have become a treater on referral from Dr Di Carlo.[47] Whatever the real situation was it seems he was engaged for “chronic low back pain” rather than specific shoulder directed treatment. However he did note the surgical treatment for rotator cuff and said “The pain in his shoulder continues”.[48] He has not seen the plaintiff since 2014. Dr Thomas does not take the matter any further for either party as I read him. He supports causation at least with respect to the left shoulder. The right shoulder is not mentioned so the defendant relies on the absence of that specific mention as advancing its causation argument and damaging credit. I do not accept either were advanced after considering how and why this doctor became involved again.
[47]DCB108
[48]DCB108
43 The defendant also tendered from the plaintiff’s materials the 2015 report of the psychologist, Ms E Gory. It does not assist now in assessing the two organic shoulder impairments in June 2019 and did not damage credit.
44 Less there is any doubt about it, the plaintiff has proved causation. In other words, the left and right shoulder injuries have resulted in impairments that were caused by the nature of and in the course of employment. I am also satisfied that he has proved the necessary disentanglement of each of those shoulders both individually and taken as one body function bilaterally. Viewed as one body function, the consequences satisfy the “serious injury” test. Viewing each shoulder on its own, the constant pain also satisfies that test in terms of pain and suffering consequences.
45 I grant leave to issue proceedings for pain and suffering damages.
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