Zammit v McIntyre Steel Industries (Vic) Pty Ltd
[2018] VCC 115
•19 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-17-03486
| DAVID ZAMMIT | Plaintiff |
| v | |
| McINTYRE STEEL INDUSTRIES (VIC) PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2018 | |
DATE OF JUDGMENT: | 19 March 2018 | |
CASE MAY BE CITED AS: | Zammit v McIntyre Steel Industries (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 115 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left and right shoulders – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Peak Engineering Pty Ltd v Victorian WorkCover Authority [2014] VSCA 67; Dressing v Porter [2006] VSCA 216; Carbone v Toyota Motor Corp [2017] VSCA 249
Judgment: Application successful
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Wolski | Slater & Gordon |
| For the Defendant | Mr D Myers | IDP Lawyers |
HER HONOUR:
Preliminary
1 Mr Zammit is a 45 year old man, who worked for the defendant as a machine operator/storeman from 1989 until September 2011. Mr Zammit claims that he suffered injuries to his left and right shoulders, as a consequence of heavy, repetitive manual work, including the lifting of heavy boxes, throughout the course of his employment.
2 In order for Mr Zammit to be entitled to claim common law damages for his pain and suffering, he must satisfy me that his impairment satisfies paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
3 The defendant accepted both that Mr Zammit injured his left and right shoulders during the course of his employment, and that it was then permissible to aggregate the impairment to his left and right shoulders, such that the impairment to be assessed is the bilateral functioning of his shoulders. However, the defendant disputed Mr Zammit’s claim on the basis that he made an excellent recovery from the surgical procedures to his shoulders, such that the consequences he now suffers are modest and cannot be described as “at least very considerable”.
4 Only Mr Zammit was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read those tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that the impairment to Mr Zammit’s shoulders, results in consequences which can be described as “at least very considerable”.
Mr Zammit’s life prior to suffering his bilateral shoulder injuries
6 Mr Zammit is married and has four children aged between 5 and 14 years, two of whom have autism.
7 Mr Zammit completed Year 10 and then worked as a cleaner for a couple of years, before commencing his employment with the defendant in 1989.
8 In late 2001, Mr Zammit experienced some right shoulder, elbow and wrist pain. He consulted his general practitioner and said the symptoms quickly settled.
9 In late 2002, Mr Zammit experienced some left shoulder pain. Again, he consulted his general practitioner and was prescribed Viox. Mr Zammit said that he had no ongoing left shoulder pain after this time.
10 Mr Zammit said that he had also suffered lower back pain “on and off” over the years. He was able to recall that a CT scan was performed in 2002, which he understood to demonstrate a prolapsed disc in his lower back. He said that he has received various prescriptions for his lower back pain over the years, including Mobic, Panadeine Forte and Tramadol.
11 In addition, Mr Zammit has suffered problems in his feet since approximately 2001, for which he has been prescribed Celebrex for the pain.
12 Mr Zammit has also suffered longstanding psychiatric problems and has had longstanding problems in his marriage. Whilst he initially claimed to suffer a severe psychiatric injury as a consequence of his bilateral shoulder injury, this aspect of his claim was abandoned at the time of the hearing.
Mr Zammit’s bilateral shoulder injuries and the consequences
13 On 26 November 2011, after lifting and moving heavy boxes, Mr Zammit experienced pain in his right shoulder, and shortly thereafter, pain in his left shoulder.
14 Mr Zammit consulted his general practitioner, Dr Peter Nicolaai, who referred him for an ultrasound of both shoulders on 2 December 2011.
15 The ultrasound indicated mild subacromial bursitis with impingement, together with a full thickness tear of the anterior supraspinatus tendon in one shoulder, and supraspinatus tendinosis of subacromial bursitis with impingement in the other. It is not possible to determine which assessment relates to which shoulder, as the report erroneously refers to findings in relation to the right shoulder and the right shoulder. This is clearly an error.
16 On 29 December 2010, Mr Zammit received an ultrasound-guided injection into his right subacromial bursa.
17 On 16 January 2011, Mr Zammit received an ultrasound-guided injection into the left subacromial bursa.
18 On 13 April 2011, Mr Zammit was referred to physiotherapist, Ms Jodie Jones. Mr Zammit then received physiotherapy treatment on a regular basis for his bilateral shoulder condition, through to 15 March 2015. Ms Jones stated that the treatment consisted of joint mobilisation, soft tissue massage, taping, a home exercise program and a gym program. Treatment ultimately ceased when the WorkCover insurer would no longer fund ongoing physiotherapy.
19 On 20 May 2011, a further ultrasound was taken of both of Mr Zammit’s shoulders. It was reported as demonstrating a full thickness anterior supraspinatus tendon tear in his right shoulder and a small intrasubstance tear within the supraspinatus in his left shoulder.
20 At about that time, Mr Zammit said that he was placed on light duties for approximately six months.
21 On 16 September 2011, Mr Zammit was referred to Western Health’s Orthopaedic Outpatient Department, where it was recommended that he undergo physiotherapy together with a further cortisone injection into his right shoulder.
22 On 27 September 2011, Mr Zammit resigned his employment, for reasons unrelated to his bilateral shoulder injuries.
23 On 28 September 2011, Mr Zammit received a further ultrasound-guided injection into his right shoulder.
24 On 4 July 2012, Mr Zammit was admitted as a public patient to Williamstown Hospital, where orthopaedic surgeon, Mr Dallalana, performed a right shoulder arthroscopy. It was noted that the posterior labrum was degenerate but that there was no tear. It was further noted that there was a partial thickness supraspinatus tear, external to the infraspinatus which was subsequently repaired.
25 On 3 May 2013, Mr Zammit was reviewed at Western Health’s Orthopaedic Clinic. It was noted that he had a full range of movement in his right shoulder, with no impingement. However, it was noted that Mr Zammit complained of a constant ache in his left shoulder, which prevented him doing overhead activities. On examination, it was noted that Mr Zammit had a full range of movement in his left shoulder, but that there was a painful arc when it was greater than 90 degrees.
26 On 17 May 2013, a further ultrasound was taken of Mr Zammit’s left shoulder. It was reported as demonstrating mild subdeltoid bursitis and a partial thickness articular surface tear of anterior fibres of the supraspinatus tendon.
27 On 19 June 2013, Mr Zammit received a further ultrasound-guided injection to his left subacromial bursa.
28 On 2 August 2013, Mr Zammit was again reviewed by Western Health’s Orthopaedic Clinic. It was noted that his right shoulder was “not 100 per cent but he was coping”. It was noted that his left shoulder was “still impinging.”
29 On 15 February 2014, an MRI scan was taken of Mr Zammit’s left shoulder. It was reported as demonstrating signs of supraspinatus tendinosis and a partial thickness anterior inserting fibre tear, associated with more proximal in substance partial thickness tear. It was also noted that there was advanced degenerative change in the AC joint and a small subacromial bursal effusion.
30 Dr Nicolaai then referred Mr Zammit to orthopaedic surgeon, Mr Douglas Li, in relation to his left shoulder injury.
On 7 April 2014, Mr Zammit consulted Mr Li, who obtained a history in respect of his left shoulder injury and the treatment he had subsequently received. Mr Li reviewed the radiology and performed an examination of Mr Zammit’s shoulder, before recommending that he undergo left shoulder surgery.
31 It is apparent from a letter to Dr Nicolaai from Mr Li dated 7 April 2014, that Mr Li was not aware of Mr Zammit’s right shoulder injury. He did not examine nor obtain any history in relation to the right shoulder injury.
32 On 12 May 2014, Mr Li performed a left shoulder arthroscopathy, left shoulder arthroscopic acromioplasty, and left shoulder subacromial bursa excision.
33 In the immediate post-operative period, Mr Zammit consulted Dr Nicolaai and obtained pain medication, including OxyNorm and Tramadol.
34 Following the surgery, Mr Li recommended that Mr Zammit undergo physiotherapy as well as a gym and swim program. Mr Zammit said that he was unable to swim due to lower back pain, and instead just went to the gym.
35 On 17 July 2014, Mr Zammit consulted Mr Li for a post-operative review. Mr Li considered that Mr Zammit was making good progress, whilst noting that he still experienced slight discomfort in his left shoulder.
36 On 23 July 2014, Mr Zammit consulted Dr Nicolaai, and reported that he had seen Mr Li, who was “happy with shoulder” and that he had been given a clearance to return to work. Dr Nicolaai then noted that Mr Zammit complained of persisting back pain, for which he required Panadeine Forte and Celebrex.
37 On 30 July 2014, Mr Zammit consulted Dr Nicolaai and requested further physiotherapy in relation to his bilateral rotator cuff repair.
38 On 7 August 2014, Mr Zammit consulted Dr Nicolaai, who noted that he was suffering ongoing issues with his back, that he wanted to try acupuncture and that he was having problems with reflux. It was noted that his attendance was for his “bilateral rotator cuff tear”, notwithstanding there was no recorded complaint in relation to his shoulders.
39 On 8 September 2014, Mr Zammit consulted Mr Li for further review. At that time, Mr Li considered that Mr Zammit was making slow but steady progress. It was noted that Mr Zammit had occasional discomfort but that he otherwise had near full motion in his left arm. Mr Li recommended that Mr Zammit continue with exercises and physiotherapy to further the motion and strength function of his left shoulder. Mr Li considered that Mr Zammit would be able to lift up to 10 kilograms at work on a full-time basis.
40 Although Mr Li expected Mr Zammit to return for a review in December 2014, Mr Zammit said that he did not return.
41 In a report to Mr Zammit’s solicitors dated 20 October 2014, Mr Li stated that he considered Mr Zammit’s prognosis to be good and that he expected Mr Zammit “to have near complete relief of pain and regain near full motion and strength of the shoulder over the course of the next six to 12 months.”
42 Mr Zammit accepted that on the occasions he was reviewed by Mr Li, he never raised with him any problems in relation to his right shoulder.
43 On 21 September 2014, Mr Zammit consulted Dr Nicolaai, who noted that he requested a further prescription for Tramadol, in relation to his bilateral rotator cuff tear.
44 On 21 October 2014, Mr Zammit attended for further prescriptions for his bilateral rotator cuff tear, at which time Dr Nicolaai recorded “shoulder good.”
45 On that same day, Dr Nicolaai wrote a letter in relation to Mr Zammit’s bilateral shoulder injuries, in which he stated that Mr Zammit had made a complete recovery of both his right and left shoulders. He stated that Mr Zammit was able to do his pre-injury duties and that he did not require any further specialist treatment. Dr Nicolaai stated that Mr Zammit had developed depression and anxiety as a consequence of his injury and his not being able to work.
46 On 14 November 2014, Mr Zammit consulted Dr Nicolaai who noted that his “shoulders are good” and that he was only taking medication as required.
47 On 13 January 2015, Dr Nicolaai wrote a further report, in which he stated that Mr Zammit took pain medication every two to three days as required. It was noted that he had previously seen a physiotherapist every two weeks, but that, by that time, he only needed to attend as required. Further, it was noted that Mr Zammit attended the gym three times a week for strengthening exercises of his shoulders.
48 On 6 February 2015, Mr Zammit consulted Dr Nicolaai and sought further prescriptions for medication in relation to his bilateral rotator cuff tear. At that time, he was prescribed Celebrex and Tramadol.
49 On 26 May 2015, Mr Zammit consulted Dr Nicolaai and complained of ongoing shoulder and back pain, for which he required pain medication. He was prescribed Panadeine Forte and Celebrex.
50 On 9 August 2015, Mr Zammit consulted Dr Nicolaai in relation to pain in his feet, which Dr Nicolaai diagnosed as plantar fasciitis.
51 On 23 September 2015, Mr Zammit again consulted Dr Nicolaai, who noted that he needed “regular pain management”. The attendance note of this date did not refer to the conditions for which Mr Zammit required pain management, but did refer to Mr Zammit as suffering depression.
52 On 7 October 2015, Mr Zammit consulted Dr Nicolaai who noted that Mr Zammit was working in a greengrocery, which involved heavy lifting. Mr Zammit requested that WorkCover fund physiotherapy treatment at that time, as he was struggling to work despite his surgeon having given him a full clearance.
53 At this time, Mr Zammit decided to attend a new medical clinic, on the basis that Dr Nicolaai considered him to have made a full recovery in both shoulders, together with his feeling that Dr Nicolaai was not completely supportive of his pain or condition. As such, on 12 November 2015, Mr Zammit commenced attending doctors at the Active Medical Clinic in Caroline Springs. In his initial attendances at that clinic, Mr Zammit consulted general practitioner, Dr Niranja Colombaarachchi. Mr Zammit informed Dr Colombaarachchi of his past history, including his depression, as well as “chronic shoulder pain”. It was noted that Mr Zammit was taking eight Panadeine Forte tablets a day, together with Tramadol.
54 On 18 December 2015, Dr Colombaarachchi further examined Mr Zammit, at which time he obtained a further history, that Mr Zammit suffered from chronic shoulder and back pain and plantar fasciitis, together with anxiety and depression.
55 On 24 December 2015, Mr Zammit consulted Dr Colombaarachchi, who noted that he complained of left elbow pain, from which he had then experienced limited movement for a few weeks. Accordingly, Dr Colombaarachchi recommended that an ultrasound be taken of Mr Zammit’s left shoulder and left elbow.
56 On 30 December 2015, an ultrasound was taken which was reported as demonstrating a small partial thickness tear of the mid-supraspinatus tendon and supraspinatus tendinosis and subscapularis tendinosis demonstrated. Further, significant subacromial bursitis was demonstrated, with bursal impingement.
57 As a consequence of such findings, Dr Colombaarachchi arranged for Mr Zammit to receive a third ultrasound-guided injection into his left subdeltoid bursa.
58 On 29 January 2016, Mr Zammit consulted Dr Colombaarachchi and complained of left shoulder pain with heavy lifting. The clinical records from the Active Medical Centre then indicate that Mr Zammit consulted several general practitioners at the clinic on 57 occasions between 17 February 2016 and 10 February 2018. Throughout that period, Mr Zammit complained of a multitude of health problems, including lower back pain, hip pain, left elbow pain, stomach problems and pain in his hands and feet. There were few recorded complaints of shoulder pain. There were also many attendances in relation to his anxiety and depression. Throughout that time, Mr Zammit was prescribed a multitude of medications.
59 Mr Zammit was cross-examined at length on the contents of these clinical records. Notwithstanding that there are very few recorded complaints of left or right shoulder pain, he maintained that he continued to suffer these problems, and that he had complained about such pain to his doctors. Mr Zammit also claimed that his general practitioner told him to take Maxigesic for his bilateral shoulder pain.
60 On 13 September 2016, Dr Colombaarachchi referred Mr Zammit to Western Health in respect of his left elbow pain. In a letter from Western Health to Dr Colombaarachchi dated 13 September 2016, it was noted that Mr Zammit was a “vague historian”, and that he was unsure as to why he had been referred to Western Health’s Orthopaedic Clinic. When it was suggested to him, that it could have been in relation to his elbow and shoulder pain, Mr Zammit reported that he had experienced one month of elbow pain. It was noted that Mr Zammit complained of a constant ache with a severity of 6/10. It was also noted that he had intermittent night pain if he lay on his elbow. It was then noted that Mr Zammit experienced shoulder pain related to subacromial impingement, for which he had previously undergone surgery, and that, at that time he was “not dissatisfied with the shoulders at present”. It was also noted that, at the time, Mr Zammit did not take medication, as he did not like taking tablets and that he had not had any injections.
61 When this letter was put to Mr Zammit, he said that he could not recall having said that he was not dissatisfied with his shoulders. He also said that it was incorrect that he was not taking analgesics, as he was taking painkillers at that time, and that he had previously undergone injections in his shoulders.
62 On 24 November 2017, Mr Zammit consulted general practitioner, Dr Victor Sammut, at the Active Medical Clinic. His attendance note reads as follows:
“Complains of recurrent pain in the left shoulder.
Attends physiotherapy for his left shoulder and left golfer’s elbow.
He is uaqnble (scil unable) to sleep on left shoulder because it aches if he does so.
He is occasionally aware of pain in the left shoulder but rarely.”
63 Mr Zammit was cross-examined regarding this entry, and accepted it as accurate. When expressly asked if the final sentence, which stated that he was occasionally aware of pain in his left shoulder, but rarely, was accurate, Mr Zammit said that it was.
64 It would appear to me that the first and last sentences of this medical entry are inconsistent. Mr Zammit gave evidence that his left shoulder continues to trouble him, and that he rarely has problems in his right shoulder. In such circumstances, I consider it likely that the final sentence was intended to refer to Mr Zammit’s right shoulder pain.
65 Mr Zammit’s acceptance of this note as being correct in its entirety, appeared to reflect his confusion and his desire to cooperate as a witness. I accept that it was an unreliable answer, which can be considered a genuine mistake.
66 Since ceasing his employment with the defendant, Mr Zammit has undertaken various jobs, including working part-time as a cleaner, working in a fruit and vegetable shop, and working as a casual machine operator and forklift driver. Mr Zammit is currently in casual employment as a machine operator and forklift driver, and said that he currently works between 16 to 38 hours per week. Mr Zammit said that at the end of a day at work, he often has to lie down due to pain.
67 Mr Zammit said that he has ongoing pain and restriction of movement in both of his shoulders, but that the symptoms in his left shoulder are the worst.
68 Mr Zammit said that he currently takes six Maxigesic tablets a day for pain relief due to shoulder pain. He also takes Effexor medication for his depression.
69 Mr Zammit said that he is currently consulting a physiotherapist, Mr Vinnie Kuriakose, on a weekly basis.
70 Mr Zammit said that as a consequence of his bilateral shoulder pain, he is restricted in his ability to perform heavy jobs around the home, and that he is only able to do some light cleaning. He also said that he struggles with heavier tasks in the garden and that digging causes him increased pain in both of his shoulders.
71 Mr Zammit said that he is able to go shopping, but that he struggles with lifting heavy shopping for long periods.
72 Mr Zammit said that as a consequence of his shoulder pain, he cannot sleep on either shoulder, and that he is woken by shoulder pain multiple times a night.
73 Mr Zammit said that as a consequence of his shoulder pain, he is restricted in the activities he can do with his children. He said he struggles to throw a ball or play cricket with them, and that when he plays with them, he has to avoid activities which will aggravate his shoulder pain.
74 Mr Zammit also referred to his 14 year old son and his 5 year old son, both of whom are autistic. He said that his 14 year old son is sometimes physically violent, and that he can no longer physically intervene when required, due to his shoulder injuries, and that he must now rely on his wife.
Medico-legal evidence
75 Mr Zammit’s solicitors arranged for him to be examined by orthopaedic surgeon, Dr Jonathan Hooper, in December 2017. In his report dated 5 December 2017, Dr Hooper detailed the treatment that Mr Zammit had received for his bilateral shoulder injuries. Dr Hooper noted that Mr Zammit complained that his shoulders were still painful and that he was also getting elbow discomfort. It was noted that Mr Zammit also complained of night-time pain, that he could not wash his car and that he could not carry heavy objects without shoulder discomfort. Dr Hooper noted that, at that time, Mr Zammit said that he took Tramadol, Di-Gesic and Effexor, and attended physiotherapy once a month.
76 On physical examination, Dr Hooper noted slight discomfort on extremes of movement. However, he noted that there was no muscle wasting or other abnormalities in Mr Zammit’s upper extremities.
77 Dr Hooper concluded that Mr Zammit had obtained an excellent result from surgery, and that he had regained a full range of motion in both his shoulders, with good power. However, because of the tendinopathy in both shoulders, Dr Hooper stated that Mr Zammit would have difficulty participating in heavy or overhead work. He also considered that heavy housework would be difficult.
78 Mr Zammit relied upon a report obtained by the defendants, from rheumatologist, Dr Roy Karna, in September 2015. The report was commissioned for the purpose of determining Mr Zammit’s claim for permanent impairment benefits pursuant to s98C of the Accident Compensation Act 1985. In his report dated 3 September 2015, Dr Karna noted that Mr Zammit stated he had no rest pain in either shoulder, but that he had activity-related pain in his left shoulder, more than his right. It was noted that Mr Zammit could not sleep on his left side, had difficulty lifting heavy weights and using his arms overhead.
79 Dr Karna considered that Mr Zammit suffered bilateral soft tissue injuries to his shoulders, which had been treated surgically, and that he had residual symptoms and dysfunction, more on his left side than his right.
80 The defendant recently arranged for Mr Zammit to be examined by orthopaedic surgeon, Mr Ronald Haig. In his report dated 27 November 2017, Mr Haig detailed the nature of Mr Zammit’s work duties, his onset of symptoms, and the treatment that he subsequently received for his bilateral shoulder injuries.
81 Mr Haig examined Mr Zammit’s shoulders, noting that they had a normal contour and that there was no tenderness. Mr Haig considered that each shoulder exhibited a full and pain-free range of motion.
82 Mr Haig was of the opinion that there were non-organic factors operating in relation to Mr Zammit’s presentation, and that he did not consider his bilateral shoulder injuries to have caused any interference with his activities of daily living. Mr Haig then concluded that Mr Zammit’s condition was now consistent with age-related degenerative change and no longer considered his employment to be materially contributing to Mr Zammit’s impairment.
Mr Zammit’s credibility
83 For the most part, I accepted Mr Zammit as a reliable witness. He appeared to be a relatively simple man, who gave short answers and who rarely sought to elaborate on any matters put to him.
84 I consider Mr Zammit gave appropriate concessions regarding his long-standing psychiatric problems as well as other physical based problems, including his lower back, left elbow and feet injuries. Mr Zammit was frank in stating that he had stopped playing soccer and cricket before he was married, and that he had also stopped fishing after his first child was born.
85 Mr Zammit was a cooperative witness, and readily accepted the contemporaneous medical records as they were put to him. At times, I consider that he was confused by what was being asked of him. This was most evident in re-examination, when he was taken to the clinical record of 24 November 2017. As detailed above, the first line of that record stated that he suffered recurrent pain in his left shoulder. The final line stated that he was only occasionally aware of pain in his left shoulder. I consider that Mr Zammit’s acceptance of the latter sentence demonstrated his willingness as a witness, to simply accept that which was detailed in a record, without seeming to listen to or understand what in fact what had been recorded.
86 Mr Zammit claimed pain and suffering consequences, most of which were based upon his home life. He said that it is difficult for him to perform heavy tasks at home and to carry heavy groceries, and that he is restricted in his ability to play with his four children. Also of significance, Mr Zammit said that when his eldest son becomes violent, he is no longer able to restrain him due to his shoulder problems. I note that the lengthy cross-examination of Mr Zammit focussed almost entirely upon his attendances at medical practitioners, with very little time spent in relation to these claimed consequences.
87 I also note that the defendant admitted that it had Mr Zammit under surveillance for approximately 36 hours, none of which was tendered in court.
88 My only reservation regarding Mr Zammit’s evidence was his reliability in respect of his reasons for attending his general practitioners and his current need and use of medication. Mr Zammit claimed that he had often consulted general practitioners at the Active Medical Centre about his shoulders and that he had been told to take Maxigesic by Dr Sammut.
89 Mr Zammit’s evidence did not accord with the Active Medical Clinic records. Given the frequency with which Mr Zammit attended this Clinic, and the detailed nature of the subsequent records, I am not prepared to accept his evidence that he attended on a regular basis to complain of bilateral shoulder pain. Further, I am not prepared to accept his evidence that Dr Sammut has recommended that he take Maxigesic for his shoulders, and that he has not required pain medication for his back. Such evidence is not borne out in the clinical records. A fair reading of those records is that there were a multitude of other physical problems, for which Mr Zammit has required pain medication from time to time.
Pain and suffering consequences
90 I must now assess whether Mr Zammit’s bilateral shoulder impairment, has caused him to suffer consequences that are more than marked or significant, and that are at least very considerable.
91 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon[1], Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, regard should be had as to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain.
[1]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
92Mr Zammit claims that he suffers fluctuating pain in his shoulders, which is aggravated by activity. He said that he regularly complains to Dr Sammut about his shoulder pain. However, this is not borne out in the medical records.
93Mr Zammit claims that upon Dr Sammut’s recommendation, he currently takes six Maxigesic on a daily basis for his shoulder pain. However, the Active Medical records demonstrate that over the last two years, Mr Zammit has been provided numerous prescriptions for a range of physical symptoms. Such prescriptions included Celebrex for left elbow pain in July 2017, and Tramadol, Panadeine Forte and Nexium for back pain in August 2016.
94I note that in January 2015, Dr Nicolaai noted that Mr Zammit took pain medication every 2-3 days, as required. I also note that in June 2017, the Active Medical records indicate that Mr Zammit was taking Maxigesic for his back and not his shoulder problems. The records do not support Mr Zammit’s claim that he is now taking Maxigesic on the recommendation of Dr Sammut.
95It is apparent that Mr Zammit has taken pain medication for his bilateral shoulder pain at time. However, I am not satisfied that he takes it on a daily basis as claimed.
96Mr Zammit has undergone surgery in both shoulders, and has had three cortisone injections to his left shoulder and two injections to his right shoulder.
97There is no report from Mr Dallalana regarding his assessment of Mr Zammit’s left shoulder following the surgery he performed.
98There is a report from Mr Li regarding the right shoulder surgery. Mr Li was optimistic regarding Mr Zammit’s long-term prognosis and expected that he would make a full recovery in the 6-12 months after his last consultation.
99Dr Nicolaai shared Mr Li’s optimism and, in January 2015, reported that Mr Zammit had made a complete recovery.
100However, I note that in January 2016, after transferring to a new medical clinic, and after further investigations were undertaken, Mr Zammit required a further cortisone injection to his left shoulder. I consider this injection to somewhat vindicate Mr Zammit’s claim that Dr Nicolaai had not adequately listened to his reports of shoulder pain.
101 Dr Hooper identified a full range of movement in both of Mr Zammit’s shoulders, with no muscle wasting and good power. However, he considered that Mr Zammit was unable to do heavy lifting and overhead work.
102Dr Karna noted some residual symptoms and dysfunction, more profound in the left shoulder than the right. He also noted activity-related pain.
103Mr Haig did not consider Mr Zammit to suffer any ongoing restriction in activities of daily living. He also considered that any ongoing shoulder injury was no longer work related. In circumstances where Mr Zammit’s shoulder pain has persisted since it was injured at work in November 2010, and for which he has required two surgical procedures, I can see no basis for Mr Haig’s opinion that Mr Zammit’s condition is no longer work-related.
104Having considered all of the medical evidence tendered in this case, I am satisfied that Mr Zammit has obtained a reasonable result from both surgical procedures, with better results in his right than his left shoulder. However, after his left shoulder surgery in May 2014, Mr Zammit required a further cortisone injection to his left shoulder in January 2016. Despite that injection, Mr Zammit still complains of pain and restriction of movement in his left shoulder.
105I accept that, to avoid pain, Mr Zammit avoids overhead activities and heavy lifting.
106Mr Zammit had undergone physiotherapy for several years under the care of Ms Jones and is currently attending Mr Kuriakose on a weekly basis.
107Mr Zammit said that his sleep is interfered with due to his shoulder pain, and that he wakes 5-6 times a night due to pain. On 24 November 2017, Dr Sammut noted that Mr Zammit has difficulty sleeping due to his left shoulder pain.
108Mr Zammit conceded, however, that his youngest child sometimes wakes him and that he sometimes wakes from hunger. Further, the Active Medical records note that in June 2016, Mr Zammit was not sleeping due to pain in his back.
109As has been recognised by the Court of Appeal in numerous cases, interference with sleep is a consequence to be considered.[2] I consider the existence of other factors, each of which can also interfere with Mr Zammit’s sleep, to perpetuate the significance of his shoulder pain interfering with his sleep.
[2]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
110Mr Zammit also said that he is now limited in his ability to go shopping, as well as to perform household duties and gardening. Such restrictions are supported by Dr Hooper, who said that Mr Zammit should avoid heavy lifting and overhead activities. Further, Dr Karna accepted that Mr Zammit suffered activity-related pain in his left shoulder.
111 Mr Zammit is restricted in his ability to play with his children. Further, he said that his bilateral shoulder injures now prevent him from restraining his 14 year old autistic son when he turns violent. I am satisfied that this constitutes a significant interference in his family life.
112It is reasonable to assume that Mr Zammit’s other physical injuries, including his lower back and elbow pain, would also cause him similar consequences. In assessing Mr Zammit’ application, it is impermissible to aggregate the impairment arising from his bilateral shoulder injury with any other impairments.
113 As was noted by Maxwell P in Peak Engineering Pty Ltd v Victorian WorkCover Authority:[3]
“[24] … where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[3][2014] VSCA 67
114 In cases where the injuries cause separate and distinct consequences, this a relatively easy task. However, as was the situation in Peak Engineering, where there is some overlap between the consequences arising from two separate injuries, it is necessary for the plaintiff to disentangle the consequences of each. However, an overlap in consequences from multiple impairments does not automatically disentitle a plaintiff, and that, “it is beside the point”[4] that Mr Zammit may also suffer similar consequences from impairment in his lower back and left elbow.
[4]Dressing v Porter [2006] VSCA 216 at [47]
115 In determining this case, I must make a comparison with other cases in the range of possible impairments. Whether or not a plaintiff has established the requisite “serious injury”, “is a question of impression which is influenced by elements of fact, degree and value judgment”.[5]
[5] Carbone v Toyota Motor Corp [2017] VSCA 249 at para [66]
116 Despite my misgivings as to the amount of pain killing medication Mr Zammit actually requires for his bilateral shoulder pain, I otherwise accept Mr Zammit as a credible witness and, in considering all of the evidence, I am satisfied that the pain and suffering consequences to Mr Zammit can be described as “very considerable”.
117 I will therefore make the consequent orders.
4
0