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- Unreported Judgment
Scheffler v State of Queensland QDC 342
DISTRICT COURT OF QUEENSLAND
Scheffler v State of Queensland  QDC 342
TRACY LEIGH SCHEFFLER
STATE OF QUEENSLAND
District Court of Queensland
18th December 2015
13 – 14 August 2015
Judge Terry Martin SC
DISPUTE AS TO QUANTUM ONLY – Conflict of medical evidence as to the existence of frozen shoulder – future economic loss – past and future care and assistance – general damages.
R Morton and J Sorbello for the Plaintiff
Morton and Morton for the Plaintiff
- The plaintiff was injured on 28 October 2011. Quantum of damages is the only issue.
- By the Amended Defence filed 11 December 2014, the defendant admits that the plaintiff suffered:
- (i)Partial supraspinatus tear of right shoulder;
- (ii)Frozen right shoulder;
- (iii)Left lateral epicondylitis.
The defendant also admits that the plaintiff has undergone and will continue to undergo pain and suffering.
- There is conflict in the opinions of Dr Van Der Walt, Orthopaedic Surgeon, called on behalf of the plaintiff, and Dr Duke, Orthopaedic Surgeon, specialising in shoulder and upper limbs, called on behalf of the defendant. Dr Van Der Walt is of the opinion that the plaintiff continues to suffer frozen shoulder and that it is a permanent condition. Dr Duke is of the opinion that the frozen shoulder had resolved by the time he examined the plaintiff.
- Dr Van Der Walt examined the plaintiff on 16 May 2014. Active movements of the right shoulder were measured with a goniometer and Dr Van Der Walt noted significant loss of range of movement, including 90º flexion, when normal is 180º, and 70º abduction, when normal is 180º. Consulting the fifth edition of the American Medical Association’s “guides to the evaluation of permanent impairment” (AMA5), Dr Van Der Walt calculated impairment due to loss of range of movement as 18% of her right upper extremity, equating to 11% whole person permanent impairment.
- Dr Duke examined the plaintiff on 4 July 2014. Both active and passive movements of the right shoulder were measured and compared those with the movements of the left shoulder. Dr Duke noted elevation at 170º for both active and passive movements of the right arm. In cross-examination Dr Duke explained:
“I’ve recorded elevation and my practice is to test elevation. Elevation is what one obtains by abduction or flexion. One can get full elevation by flexion or abduction, and if both are tested and found to be fine then elevation is recorded. If there is a block to abduction but not a block to flexion, then that is significant and recorded separately.”
In his opinion, prognosis was excellent and the plaintiff has 0% impairment based on the AMA5 criteria.
- In her evidence at trial, the plaintiff stated and demonstrated (active movement) that flexion of the right arm achieved 90º only.
- In relation to Dr Duke’s examination, the plaintiff stated that she moved her arm to 90º and then Dr Duke “grabbed my arm – and lifted it right up. And that was pretty excruciating …”. In her description of the examination, the plaintiff did not mention that she achieved 170º on active movement and, by her evidence, impliedly refuted it. Nor did the plaintiff mention Dr Duke’s testing the movement of the left shoulder.
- I accept the evidence of Dr Duke in preference to that of the plaintiff. As Dr Duke explained, testing of range of movement is done by him in a consistent fashion and it invariably involves examination of both shoulders for comparison and putting patients through active and passive range of movement.Dr Duke is a very experienced upper limb specialist, having dealt with some thousands of frozen shoulders over 22 years as an orthopaedic surgeon and seeing 50 to 100 cases of frozen shoulder each year.I find Dr Duke’s evidence convincing and I find the plaintiff’s description of the assessment by Dr Duke inherently improbable.
- Whilst AMA5 requires an assessment be made in accordance with the active range of movement, for the reasons explained by Dr Duke, both active and passive testing is essential for a diagnosis of frozen shoulder. In particular, Dr Duke stated:
“You can’t make the diagnosis on active range of movement alone. It has to be on passive movement and one has to – has to push into that end point of that movement to ascertain that it’s a physical restriction. Other causes of pain will want the patient to perhaps not push through that but that – that doesn’t make a diagnosis of frozen shoulder …”
I also note that Dr Frederiksen, the plaintiff’s surgeon, tested for both active and passive ranges of movement.
The Plaintiff’s submission that Dr Duke did not deny the Plaintiff’s evidence about what happened in the course of his examination, is without merit. By his evidence as to his invariable practice in examining patients, Dr Duke clearly refuted the Plaintiff’s evidence. Moreover, I cannot see that Mr Morton put to Dr Duke the Plaintiff’s version of what she said happened in the examination.
- I reject entirely the plaintiff’s submissions that Dr Duke’s assessment of the plaintiff was incomplete and haphazard and that it was an assessment which “set out to reach a predetermined result”.Dr Duke’s failure to comply with the AMA5 in not using a goniometer and in failing to assess active movement only, in no way diminishes the thoroughness and value of Dr Duke’s assessment of the plaintiff. Indeed, testing for both active and passive movement is plainly essential, although not required by the AMA5. And as Dr Duke explained, the assessment of 0% impairment of the right arm was based on it having the same degree of movement as the left arm.Given Dr Duke’s long-standing and invariable practice in examinations, the failure to include any greater detail of the examination in notes and in his report is perfectly understandable.
- The plaintiff’s submission that Dr Duke’s assessment “was significantly out of line with every other single assessment ever made”,ignores the assessment made by Don Kirk, physiotherapist, on 3/4/13 and reported upon on 4/4/13.That assessment is omitted from the “Scheffler-Flexion Trend” Chart handed-up on behalf of the plaintiff, and it is also omitted from the plaintiff’s submissions. Mr Kirk reported flexion at 140º active and 160º passive, and abduction at 100º active.
The omission may have been because the Chart and submissions were meant to show results achieved by medical practitioners only. However, there seems no reason not to accept the assessment made by the plaintiff’s physiotherapist. I also note that in exhibit 1.18, the Permanent Impairment Assessment Report, Dr Anderson read Mr Kirk’s handwriting as showing flexion (active) at 145 º.
- The Plaintiff’s argument that she continues to suffer a frozen right shoulder is made in the face of Dr Duke’s uncontested evidence that one cannot make a diagnosis of frozen shoulder on active range of movement alone: “It has to be on passive movement to ascertain that it’s a physical restriction…” (See Para  above). Not only is this evidence uncontested by any other evidence, it seems to be supported by Dr Van Der Walt.
The Plaintiff’s argument is then made in the face of Dr Duke’s evidence that, on examination, the Plaintiff’s passive range of movement was 170 º elevation, the same as the left shoulder. The Plaintiff does not dispute that upon Dr Duke’s examination the passive range of movement of the right shoulder was 170 º elevation. Indeed, there is Mr Morton’s apparent concession in cross-examination of Dr Duke that the Plaintiff’s passive range of movement might have been 170 º elevation.
- On the other hand, the defendant’s submission that exhibit 6 (the photograph of the plaintiff extending fully the right arm shortly after being injured) is significant, seems to be without merit. I can see nothing in the evidence which would contradict that the frozen shoulder developed as a secondary injury over time beyond the date of the photograph.
- Dr Van Der Walt tested only active movement of the right shoulder. The accuracy of such testing must depend upon the patient making a genuine effort to maximise movement. Dr Van Der Walt stated that a patient is encouraged to give maximum effort and if maximum effort is not given, he would note that in the report. However, Dr Van Der Walt may or may not be correct in assessing whether a particular patient is giving maximum effort.
- Having accepted Dr Duke’s evidence, it is my view that it is likely that the plaintiff did not give maximum effort when examined by Dr Van Der Walt. Consistently with Dr Van Der Walt’s evidence that higher room temperature, the patient being more relaxed and taking medication may induce only a slightly greater range of movement,the variation in the range of active movement between the date of Dr Van Der Walt’s examination and the date of Dr Duke’s examination seems otherwise somewhat inexplicable. That the plaintiff gave maximum effort when assessed by Dr Duke may be the result of a combination of the above factors as well as, perhaps, greater or more robust encouragement. Whatever the reason, I accept the evidence of Dr Duke as to his assessment of the plaintiff.
- Those results achieved by Dr Duke led him to the conclusion that, as at the date of the examination, the plaintiff no longer suffered a frozen shoulder.
- The results discount a current diagnosis of frozen shoulder, but there remains the problem that on the plaintiff’s evidence, she continues to suffer pain depending upon the degree of movement of the right arm. Whilst I am critical of certain aspects of the plaintiff’s evidence, I accept her evidence that she continues to suffer such pain.
- The plaintiff complained to both Dr Van Der Walt and Dr Duke of significant on-going symptoms.Dr Duke noted in his report “no significant problem could be found to explain her symptomatology”. In cross-examination, it was put to Dr Duke that he did not believe the plaintiff that she suffered pain. Dr Duke did not agree with the suggestion at all. He replied: “No. I believe she has pain. I could not find a cause or an explanation for it”.
- Given the evidence in this trial of the history of the relevant injuries, the history of pain, Dr Duke’s evidence excluding arthritis,and the admissions made in the Amended Defence,the only reasonable explanation for the plaintiff’s continuing pain is that it results from the relevant injuries to the right shoulder.
- The plaintiff has worked for Queensland Fire and Emergency Services in Maryborough since 1999. On all of the evidence, the plaintiff seems a popular employee and colleague. The plaintiff gave evidence that she has an empathetic employer, “loves the job”, has the benefit of flexible hours, gets whatever assistance she needs, acknowledges it is a well-payed job, and she would “love to stay there”.
- In evidence-in-chief, the following evidence was given by the plaintiff:
Ms Sorbello: Do you think you’ll be able to continue working in your role as you are?
Plaintiff: Well, I’ve been thinking that, like, it’s really starting to wear me down. So, you know, probably another year or two and then I’d probably have to look at either part-time work or something”.
- Up until that piece of evidence, the plaintiff had not previously suggested early retirement or part-time work. On the contrary, the plaintiff had stated her intention to continue in her job until retirement age. Cameron Fraser, Occupational Therapist, assessed the plaintiff on 28/10/2014. In his report (Exhibit 4) at paragraph 15, Mr Fraser noted: “At assessment, Ms Scheffler reported that she planned to continue working full time in her current position until her elected retirement age”.
- I find the plaintiff’s assertion that she was contemplating early retirement or reduced work hours, entirely unconvincing. This view is fortified by what the plaintiff said in cross-examination on the topic. Whilst the defendant has submitted that it “does not suggest the plaintiff is a malingerer or being deliberately dishonest”, I am of the opinion that the plaintiff was less than honest in some of her answers in cross-examination.
- When confronted with what she told Mr Fraser, the plaintiff at first made out that she had meant to convey that, but for the injury, she would have continued to work in that job until retirement age and that she probably did not understand the questions asked. The plaintiff’s explanation then changed to assert that up until 12 months ago she had said that, notwithstanding the injury, she intended to work until retirement age, but things had changed over the past 12 months or so.This passage of evidence impacts adversely upon the plaintiff’s credibility in relation to this issue, and more broadly. I do not accept that the plaintiff is contemplating early retirement or reduced working hours. I also note that it was only 9 ½ months before giving evidence that the plaintiff stated her intention to Mr Fraser to continue working full time to retirement age.
- Further, in cross-examination, the plaintiff accepted that over the previous 12 months or so, she had taken no time off work in relation to her shoulder, had not sought any additional assistance from her employer, had not made any complaint of work problems to her employer, and had not sought any additional treatment compared to the 12 months previous to that.
- As to the evidence of Mr Hoey, Occupational Therapist, and Mr Fraser, I prefer, by and large, the evidence of Mr Fraser generally and in particular in respect of the plaintiff’s capacity to continue working. The opinions of Mr Fraser were given in the context of having made a detailed analysis of problems arising from the plaintiff’s work tasks. I also find Mr Fraser’s evidence in cross-examination persuasive. I refer in particular to this passage:
Mr Morton: Mr Fraser, fundamentally, whether this woman can keep going at work for the next 15 years, in whole or in part, depends upon her pain experience doesn’t it?
Mr Fraser: I – in my experience the three best predictors of capacity for work are self-efficacy, which is her perception of whether she can continue working.
Mr Morton: Yep
Mr Fraser: At my assessment I asked her specifically that question and she told – told me that she felt that she could continue to work full-time in her current role until her elected retirement age. The second one is motivation, and she presented as a motivated lady, a stoic lady who I
Mr Morton: Sure
Mr Fraser: felt would continue to work. And the most important one and the most objective one is a history of having completed the occupational demands of that position and, at the time of my assessment, Ms Scheffler had been doing that for 18 months.
Mr Morton: Yep. Yep?
Mr Fraser: So I saw no reason why she wouldn’t then be able to continue full-time into the future.
Mr Morton: Except for the fact that if she’s in pain then that is obviously going to affect her capacity to continue, isn’t it?
Mr Fraser: Well, firstly, as you would know, pain is a subjective experience
Mr Morton: Yes
Mr Fraser: I certainly can’t feel her pain. I asked her to describe her pain. I asked her to locate where her pain was and I outlined that in my report and she advised me that she was having low grade aching sensations and some heaviness to the shoulder. She gave me a scale up to five out of 10 in terms of that. So I obviously based my opinions on that.
- In my view, the evidence overwhelmingly supports a finding that the plaintiff is not contemplating early retirement or reduced work hours. Further, it is unlikely that the plaintiff will retire or reduce her work hours in the foreseeable future.
- I have had regard to s 306J of the Workers’ Compensation and Rehabilitation Act 2008, and the authorities referred to by Counsel.
- Given the period over which the Plaintiff has suffered pain from the right shoulder, and there being no evidence suggesting that the pain is likely to abate in the future,I am of the opinion that the pain the Plaintiff suffers from the right shoulder is likely to be permanent.
- Whilst I have accepted Mr Fraser’s evidence in large part, I do not agree with his opinion that the Plaintiff’s right shoulder symptoms will not have any significant impact upon the capacity for employment (or commercial employability) in the future.
Future Economic Loss
- The Plaintiff was born on 18 February 1964. Assuming normal retirement age is 65 years of age, from date of trial, the Plaintiff has a working life of a further 14 ½ years. She works 36.25 hours per week and earns approximately $924.33 nett per week. Pain-related problems with work tasks may be improved by further relatively minor adjustments. Mr Fraser suggested assessment and advice from an Occupational Therapist.
- Closer to the end of the Plaintiff’s normal working life, the Plaintiff may be worn down by continuous pain and may cease employment earlier than she otherwise would have, or reduce her working hours. However, given matters identified above, particularly in paragraphs  and , and the evidence of Mr Fraser set out in , I assess the degree of probability of that occurring as quite low.
- I assess future economic loss on the assumption that the Plaintiff may cease employment in about 10 years from the date of trial. The loss is than $924.33 from about age 60.5 years to 65 years, with a 35% chance of that occurrence.
- I allow $41,733.00 for future economic loss.
- General damages are to be assessed in accordance with the Worker’s Compensation and Rehabilitation Regulation 2003. Schedule 9 provides for the ranges of injury scale value (ISV) for particular injuries. Division 2 of Schedule 8 refers to additional matters to be considered in determining the ISV.
- As noted in paragraph  above, the Plaintiff’s pain is likely to be permanent. Prior to injury, the Plaintiff would go horse riding four or five times a week and engage in fishing once a month. The Plaintiff can not now ride a horse and that would be a substantial loss of enjoyment for her. The Plaintiff continues to fish, but has difficulty in landing larger fish.
- The dominant injury is the right shoulder injury. The Plaintiff’s right shoulder injury falls plainly under Item 96 – Moderate shoulder injury. As submitted by the defendant, for the purposes of general damages only, greater weight should be given to the 11% whole person impairment (WPI) assessed by Dr Van Der Walt.
- Item 103 is relevant to the left external epicondylitis. This injury has resolved entirely without any significant problems for the Plaintiff before resolution. In the circumstances, for the right shoulder I assess an ISV of 14 and uplift it to 15 to take account of the minor elbow injury.
- I award $21,800.00 for general damages.
Past Economic Loss
- The sum of $26,315.26 is claimed and admitted by the defendant.
Past Special Damages
- The claims in Exhibit 5, the schedule of special damages, are inflated and/or not justified. The claim for travel is without merit. The Plaintiff travels to work in Maryborough. It is there that she goes for a massage, shops for pharmaceuticals etc. Travel expenses for treatment and rehabilitation have been paid by WorkCover. The massages are whole-body massages, not shoulder-specific, and, as the defendant submitted, the Plaintiffs evidence was that even without the injury, she probably would have massages, but not as often. The massages seem to be primarily for general rejuvenation with consequential pain relief for the shoulder.
- Doing the best I can, I allow $2,500.00 for past expenses. WorkCover payments of $25,777.54 and Medicare refund of $402.85 are admitted.
- I assess special damages at $28,680.39
Past Paid Care
- The claim for carpet cleaning is abandoned. In my view, for the reasons advanced on the behalf of the defendant, the horse-training expenses are not recoverable.
- The chronology set out by the defendant at paragraph 73 of the Written Submissions, does throw up a curiosity in that any receipts for cleaning, working and property maintenance, only came into existence in August 2014. It tends to suggest that services may not have been needed, but proof of services rendered were needed for litigation purposes.
- I note that the Plaintiff was/is paying the person for mowing, not only the parts that she prefers to be done by the push mower, but also the parts done with the ride-on mower. The Plaintiff was/is paying the mower man to mow on the ride-on mower, a job she can easily manage.
- On a global basis, I allow $500.00.
Future Treatment Expenses
- On the evidence, there is no basis for an allowance for future medical treatment nor future travel. The Plaintiff is entitled to an allowance for pharmaceuticals and some modest allowance for shoulder-specific massage.
- Doing the best I can, I assess $12,000.00 for future treatment expenses.
Future Care and Assistance
- The effect of the Plaintiff’s statements to Mr Fraser, and the effect of her evidence, is that she is, by and large, independent in relation to domestic tasks within the house, but requires assistance for some heavier tasks from time to time.
- The outdoor domestic tasks are shared between the Plaintiff and her husband. With a change of job, the Plaintiff’s husband has less time available for chores. However, the Plaintiff is capable of doing most of the lawn mowing on the ride-on mower with its power steering. Indeed, it would appear that all of the yard could be mowed with the ride-on mower by the Plaintiff, but around the paths “it’s best to do the push mowing”. Even so, the Plaintiff informed Mr Fraser that her husband completed whipper snipping and push mowing in approximately 1 hour weekly.Notwithstanding the husband’s work demands, one would think he could usually assist the household in this regard. The Plaintiff attends to the spraying of the small number of cattle for ticks.
- No explanation was given as to why, currently, Dale’s Gardening were being paid to mow the whole of the yard, when the Plaintiff can readily mow most of yard with the ride-on mower.
- As to grocery shopping, the Plaintiff told Mr Fraser that her husband helps about 50% of time with pushing heavy trolleys, and lifting heavy shopping bags. However, in evidence, the plaintiff stated that since the accident she has really been doing the shopping herself. Because she lives out of town, it is easier for her to do the shopping straight after work.
- Doing the best I can, I assess the cost of future care at $7,000.00.
Agreed Between the Parties
- It has been agreed between the parties that loss of superannuation entitlements be allowed at 11%. Interest on past special damages and past care has also been agreed. The refund to WorkCover is $111,074.05. As to costs, in light of the damages assessed, it is agreed that the Defendant pay the Plaintiff’s standard costs, up to and including 11 August 2014 and the Plaintiff pay the Defendant’s costs from 12 August 2014 up to date of judgement.
- I give judgement as follows;
- Judgement for the Plaintiff against the Defendant in the amount of $31, 794.46;
- The Defendant pay the Plaintiff’s standard costs up to and including 11 August 2014; and
- The Plaintiff pay the Defendant’s standard costs from 12 August 2014 up to date of judgement.
Future Economic Loss
Loss of Super Entitlements
Past Economic Loss
Past Special Damages
Interest on Past Expenses ($2500)
Past Paid Care
Interest on Paid Care
Future Treatment Expenses
Future Care and Assistance
 T2-19, l 40-45.
 T1-36, l 20.
 T2-7, l 45 to T2-8, L1 and T2-20, L3-7.
 T2-16, L 5.
 T2-14, L 40 to T2-15, L 15.
 See Exhibit 1.4 and the plaintiff’s evidence at T1-36, l 30.
 See the Plaintiff’s version at T1-35, L35 to T1-36, L34.
 Plaintiff’s Submissions in Reply.
 T2-21, L10-20.
 T2-18, L34 and T2-20, L20
 Plaintiff’s Submissions in Reply.
 See Para 1.17
 See Para 1.17
 T2-18, L38.
 T1-77, l 33 to T1-78, l 3.
 Report of Dr Van Der Walt, p 5 and report of Dr Duke, p 3.
 T2-28, l 1.
 T2-15, l 10-12.
 See Para 2 above.
 T1-51, L30-L41.
 T1-23, L1-5.
 T1-50, L12 to T1-51, L9.
 T1-52, L12-39.
 I note Mr Fraser at paragraph 4.8 of his report stated that further improvement “could” be expected over time.
 T1-67, L 5.
 Paragraph 67 Defendants Written Submissions.
 T1-47, L 5-15.
 See Mr Fraser’s Report Page 3 and T1-59, L 1-5.
 T1-46, L 10.
 Mr Fraser’s Report Paragraph 10 p5
 T1-44, L1-30.
- Published Case Name:
Scheffler v State of Queensland
- Shortened Case Name:
Scheffler v State of Queensland
 QDC 342
Terry Martin SC
18 Dec 2015