McGrory v Medina Property Inc Services Pty Ltd
[2016] QDC 280
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- Unreported Judgment
- Appeal Determined (QCA)
- McGrory v Medina Property Inc Services Pty Ltd[2016] QDC 280
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McGrory v Medina Property Inc Services Pty Ltd[2016] QDC 280
McGrory v Medina Property Inc Services Pty Ltd[2016] QDC 280
DISTRICT COURT OF QUEENSLAND
CITATION: | McGrory v Medina Property Inc Services Pty Limited [2016] QDC 280 |
PARTIES: | VICKI MARIE MCGRORY (plaintiff) v MEDINA PROPERTY SERVICES PTY LIMITED |
FILE NO/S: | D55 of 2015 |
DIVISION: | CIVIL |
PROCEEDING: | TRIAL |
ORIGINATING COURT: | District Court at Rockhampton |
DELIVERED ON: | 11 November 2016 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 18, 19, 20 October 2016 |
JUDGE: | Burnett DCJ |
ORDER: |
|
CATCHWORDS: | WORKPLACE INJURY – Liability – Employment related injury, disability – Arising in Course of Employment – Where the plaintiff suffered injury to right shoulder while lifting ice bin – where no safety procedure for lifting ice bin implemented in workplace – Whether the employer is liable for the injury occasioned ASSESSMENT OF DAMAGES – Shoulder Injury – Economic Loss Workers Compensation and Rehabilitation Act 2003 (Qld), s 305(B), s 305(C) Workers Compensation and Rehabilitation Act Regulations 2014 (Qld) Hegarty v Queensland Ambulance Service [2007] QCA 366 Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 Meandarra Aerial Spraying Pty Ltd v GSJ & MA Geldard [2013] 1 QD R 319 Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 Woolworths Ltd v Perrins [2015] QCA 207 |
COUNSEL: | S B Whitten for the plaintiff S P Gray for the defendant |
SOLICITORS: | Bressington & Partners for the plaintiff BT Lawyers for the defendant |
Introduction
- [1]The plaintiff claims damages for personal injuries she alleges occurred in the course of her employment as a room attendant/cleaner at the Travelodge Hotel Rockhampton on 30 January 2011. Both liability and quantum are in issue.
Circumstances of accident
- [2]At about 6.00 am on Sunday 30 January 2011 the plaintiff was in the course of preparing the breakfast room at the Travelodge Rockhampton for the daily breakfast service. Her duties included checking and preparing ice as required for the buffet breakfast bar. Particularly it included checking the quantity of ice present in an ice bin behind the bar and refreshing that bin as required. The nature of the bin is revealed in Exhibit 2 and the video Exhibit 24. Broadly, the bin is located behind a pull out door included in the bar cabinetry. The bar cabinetry includes a refrigerated display/glass cabinet set into a stainless steel fridge of the kind commonly seen in many public bars and hotels throughout Australia. The ice bin hinges are at the base such that when pulled open from the handle at its top (positioned at about waist level) the door moves outward and down toward the person pulling at the handle. As the door is hinged at its base, the opening movement from the vertical towards its horizontal plane is arrested by a chain. The chain is fixed such that the hinge permits the door to open a sufficient depth to permit the ice bin fixed to it internally to be removed.
- [3]The ice bin itself is of unusual dimensions. It has a cone-like shape and is fashioned to permit its ingress and egress from a rail behind the door into which it is positioned. By pulling the door forward to the length of the chain the door can be left open revealing the full surface of the ice bucket for use by bar staff.
- [4]On 30 January the plaintiff had examined the ice bucket and thought it would require some replenishment. Her initial examination was cursory. She retreated to the kitchen and procured the provisions she considered necessary to effect the set up and upon return to the bar she more closely examined the ice in the bin. Examination revealed that some of the liquid in the bin appeared white – as though milk or another contaminant had been spilt into the bin. She described the bucket as being “pretty full”. In evidence she marked the bin at the level to which she said it was filled and that revealed it was filled to a level of about 95 millimetres below the top. She determined that the ice in the bucket required complete replenishment because of the presence of the contaminant.
- [5]She clearly thought the bucket was weighty as she initially requested one of the kitchen staff to assist in removing it from its position behind the door. However that member would not assist her proclaiming his inability because of a bad knee. Accordingly she resolved to lift the bin herself. Given the level to which the bin was filled and allowing for some liquid – although that matter could not be the subject of definitive conclusion – and accepting the expert evidence of an engineer, Dr McDougall - that ice is less dense than fluid, I am satisfied that the gross weight of the bin was somewhere in the vicinity of 15 kilograms (that is the bin was 3 kilograms and ice/fluid 12 kilograms). There was no suggestion that the bin’s movement along the rails supporting it against the door inhibited its movement and thus occasioned extra strain upon its removal.
- [6]The plaintiff took a grip of each side of the bin at its midpoint with each of her hands and lifted it from the door sliding it up the rail then moving it across the top of the chain holding the door and positioned it on the floor to the right-hand side of the door. A number of factors require comment. First the bin did not have any handles or openings to permit a ready grip by either hand upon it. The top of the bin contained a flange about 1cm in depth under which the thumb could be positioned to provide some purchase on the lift. Secondly as the plaintiff commenced the lift, she was positioned face on to the bin standing with feet apart and in a normal posture. She demonstrated the manner of the lift in court and before Dr McDougall at the Travelodge. That demonstration was digitally captured and is Exhibit 24. Her motion was significant. As she lifted her elbows initially remained at her side until she reached a point where her lower arms – extended from the elbow – were about parallel to the ground. At this point the bottom of the bin had not cleared the top of the door and most significantly the chain which tethered the top of the door to the top of the bin door opening inside the cabinet. As the plaintiff continued the lift to clear the chain, her elbows commenced to abduct to a point where the degree of abduction from the shoulder was to about 45 to 60 degrees. This action was referred to in evidence by witnesses as a “chicken wing” like action. The greatest degree of abduction was achieved at a point when she elevated the bin to pass over the chain. At this point her hands, which were holding the top of the bin, could be seen to be at about nose or eye height. The plaintiff is about 172cm tall.
- [7]The top of the bin was lifted to a point of about 1400 millimetres above ground with the plaintiff’s hands above her shoulder but the load of the bin plainly spread from her wrists down to the elbow and up her abducted upper limb from the shoulder.
- [8]It was in the course of this action that the plaintiff claims to have experienced pain. That is alleged to be in response to injury this action occasioned. I note this action was understood by Dr Cook and Dr Walters to be the action causing the injury.
- [9]The plaintiff reported the injury later that day to her supervisor in an incident report, which report is consistent with the mechanism complained of: see Exhibit 8.
- [10]The defendant denies the incident occurred in the manner described by the plaintiff. There were no independent witnesses to the incident. I am left to determine this issue solely upon the plaintiff’s evidence. The plaintiff did not impress me as dishonest. She openly acknowledged her memory of events are not as good now as when events occurred about 6 years ago. There is sufficient corroborative material such as the incident report, Exhibit 8 to satisfy me that an incident occurred. The mechanism of the incident explained by her and the subsequent action accord with common sense. I have no difficulty being satisfied on the balance of probabilities that the events occurred as described by the plaintiff and I accept her evidence on these matters.
Duty of care
- [11]It was admitted that the defendant owed the plaintiff a non-delegable duty of care as employer. While the existence of a general duty of care was not in dispute, the terms of that duty were in contest on the pleadings.
- [12]The statement of claim blandly alleges various duties of the defendant which more relevantly for this case could broadly be particularised as follows:
- (a)Failure to provide a safe place of work by failing to have in place an ice bin that by design:
- (i)could not be loaded up such as to place an employee at risk of lifting it (gross bin weight); and
- (ii)provided adequate handles for lifting (grip).
- (b)Failure to provide a safe system of work by exposing the plaintiff to the risk of lifting an ice bin with a weight in excess of a reasonable load for a female employee; and
- (c)Failure to provide proper training, instruction, supervision and warnings of the dangers of work.
- [13]The plaintiff alleges the breach of these duties gave rise to her cause of action.
- [14]Dr McDougall, mechanical engineer was called by the plaintiff to provide expert evidence in her case. Dr Goode, an occupational physician was called to give evidence for the defendant. Each expert considered and commented upon each other’s reports and opinions in evidence. Neither took issue, through their respective counsel, of the relevant expertise of the other. It seems common that each recognised the expertise of the other despite their differing primary background disciplines. Each witness proceeded in report and evidence to comment upon the duties I have articulated in above. Indeed these duties were the focal point of their discussion.
Breach of duty – Generally
- [15]The Workers Compensation and Rehabilitation Act 2003 (the WCRA) addresses the applicable principles. In particular s 305(B) and 305(C) inform the matters to be considered and the statutory gateway to determining whether or not a breach of duty has occurred. It is now well-settled by reference to the WCRA and comparable legislation in other jurisdictions:
“…that what an employer acting reasonably must do by way of care for an employee is an issue which requires looking forward to identify what a reasonable employer would have done, not backward to identify what would have avoided the injury”: Hegarty v Queensland Ambulance Service [2007] QCA 366 at [49].
- [16]As was submitted by the defendant when considering whether the employer has breached its duty of care it is necessary to identify what a reasonable employer would have done to obviate a foreseeable risk of injury to the worker. This enquiry is not focused on the injury, which in fact occurred, but on the range of activities with which employees were engaged and potentially at risk. Relevant to this enquiry are the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of alleviating action, and other competing demands upon a potential defendant: Heywood v Commercial Electrical Pty Ltd [2013] QCA 270.
- [17]These principles inform a consideration of each breach.
Design failure
- [18]The physical evidence is not in question. The bin is as was presented to the court and is displayed in Exhibits 2 and 24. I accept the plaintiff’s evidence as to the load of ice contained in the bin. It follows that on the morning of the incident it had a gross weight of about 15 kilograms. The two issues that arise are:
- Was the bin designed to permit too heavy a load to be safely lifted; and
- Was its design defective because of the absence of handles.
- [19]In his report, Exhibit 4, Dr McDougall expressed the view that:
“…in general weights in the vicinity of 16-20 kilograms or more can be lifted infrequently by female workers with minimal risk under optimum conditions”. (page 10).
He continued,
“…the occasional lifting of objects up to 16 kilograms can be acceptable when the load is close to and directly in front of the body, lifted between mid-thigh and waist height, when the weight is equally shared between the hands and where there is good hand cup ring (i.e. rigid objects fitted with handles). However if objects are lifted at close to foot level, above shoulder height, or more than half one’s distance in front of the body the maximum weight of lift can be 7 kilograms or less.”
- [20]In his report he noted that the plaintiff was lifting the bin to just below shoulder height and just beyond half an arm reach. In fact the demonstration in court and shown on Exhibit 24 revealed the lift was to a maximum height above shoulder level (although not by the upper arm – only the lower arm coupled with the upward abduction of the upper arm). On the basis of his evidence the lift required was in excess of the literature recommendations with the recommended lifting weight in fact being lower when account is taken for the absence of grip. The recommended lift weight limit lowered further again when considered against the literature recommendations that manual tasks be designed to be within the strength of 75 per cent of workers (page 13).
- [21]Dr McDougall concluded the matter was exacerbated by the absence of handgrips. This matter was also acknowledged by Dr Goode as a factor that would make the lift more comfortable and by corollary easier and thereby mitigate the lifting risk. Dr McDougall opined that this risk ought to have been identified. He stated that typically an OHS safety management system would include base elements such as a systematic appreciation of risk management processes effected by risk audit and effectiveness monitoring. In particular he considered this assessment should be undertaken, inter alia, when designing systems prior to work commencing and considered against routine tasks or generic hazards. He indicated this process should also generally involve workplace feedback. So much appears consistent with common sense as understandably it is the worker at the ‘coalface’ who will have a more acute appreciation of the risk to which he or she is exposed in the work place. There is no evidence of any of these risk assessment activities having been undertaken here. Respectfully it is no answer to say that management had not received any complaints. Workers, particularly older workers, are notorious for effecting utilitarian workarounds to address poor design and similar issues.
- [22]In his report Dr McDougal in particular identified the Manual Tasks Advisory Standard which addresses manual task risk factors in some detail and produces a range of check lists for assessing manual risks. So far as this workplace was concerned he identified in particular the following from the standard as relevant here:
“Working Postures
1.Arms and shoulders
- (a)Is work performed (including reaching) without support for the forearms or elbows –
...
- (d)Were the elbows out to side
Nature of loads
1.Is the load heavy or bulky
…
3.Are handles or hand holds –
- (a)Provided on heavy loads
- (b)Too small for the workers hands to fit through
5.Is the load difficult to grasp because –
- (a)It is smooth, slippery, greasy, wet
- (b)Designed with sharp edges or protrusions
- (c)Uncomfortably hot or cold
Load handling…
- Are loads located in a position at the beginning or end or the lifting which –
- (a)Require awkward postures (bending, twisting or reaching etc.)?
- (b)Make it difficult to reach, grasp or hold.”
- [23]Dr McDougall stated any generic risk assessment of the “design of the ice bucket and storage cabinet using guidance such as provided in the Manual Tasks Advisory Standard (would) have identified the potential manual handling risk” and concluded that the risk could have been managed by firstly limiting the maximum weight of the bin to 7-13 kilograms and also by fitting handgrips which would have allowed a worker to optimise upper arm postures during the lifting phase. I accept his evidence in respect of those matters.
- [24]Dr McDougall’s evidence is not an expression of best practice with hindsight. Consistent with the principle, his opinion identifies what a reasonable employer ought to have done: see Hegarty v Queensland Ambulance Service. (supra)
- [25]I accept an appropriate risk assessment would have identified the risks evident as explained by Dr McDougall and could have been obviated by appropriate design or instruction. However the real issue here is whether the risk was one that the defendant knew or ought reasonably to have known of. The evidence of Mr Barford, the Manager of the Travelodge at the time, was that during the five years he was manager he had never received any complaint from an employee about the ice bin. I accept his evidence. It follows the risk is not one that was then known to the defendant. So was the risk one that the defendant would reasonably have known about?
- [26]Dr McDougall’s evidence was that manual lifting tasks present as a well-recognised risk. This is particularly so within a work environment where both men and women will engage in that activity. It is clearly implicit in Dr McDougall’s report from his observations concerning differential lifting limits for both male and female employees that any lifting risk also requires this factor to be considered. I am satisfied that from the viewpoint of an employer looking forward that there was a foreseeable risk of injury to the plaintiff from the lifting presented by the design of the ice bin, weighing about 15 kilograms when loaded. Given the nature of the incident has significantly more mechanical qualities about it than physiological I prefer the evidence of Dr McDougall to Dr Goode concerning the analysis of the incident.
- [27]In my view common sense suggests the risk as obvious. While the defendant may not have anticipated the subject event it cannot be ignored that there always remained the prospect that some employee would fill the ice bin to capacity and a circumstance might arise in a wet area such as a bar, where the full ice bin would require emptying. In that case an employee left to his or her own devices would seek to lift the bin in the manner done by the plaintiff. Given the awkwardness associated with such a lift, particularly because of the need to clear the chain, if an employee was right-side dominant (as many are) the risk of injury was, in my view, manifest.
- [28]The next issue was whether the risk was not insignificant. That phrase means a risk of a higher probability than is indicated by the phrase “not far-fetched or fanciful” but not so high as might be indicated by a phrase such as “a substantial risk”. The choice of the double negative, ‘not insignificant’, is recognised as deliberate and was so chosen and not intended to be a synonym for “significant”, a word “apt to indicate a high degree of probability”: Rudd v Starbucks applying Meandarra Aerial Spraying Pty Ltd v GSJ & MA Geldard [2013] 1 Qd R 319 at [23] per Fraser JA.
- [29]I am satisfied the risk was not insignificant. It was an accident waiting to happen. It simply required the confluence of circumstances as occurred here in order to manifest.
- [30]Finally remains the question of whether or not a reasonable person in the position of the defendant would have taken precautions. Here, the defendant gave employees an induction which included lifting training. The nature and extent of that training was not explored in evidence. Significantly however, there was no evidence of how lifting for this particular task was addressed. The employer created its workplace. It ought to have appreciated the need to address a risk created by the design and particularly the need to lift a weighty ice bin over a chain and address that lift by training or otherwise providing for another system in the event the ice bin was full. As the risk was not insignificant, there was a reasonable possibility of injury if care was not taken. The likely seriousness of the injury was always high. This mechanism of injury is particularly a matter that Dr Goode, an occupational physician, could comment upon. In his evidence he accepted that there was such a risk given the mechanics of the lift involved particularly because of the absence of handles on the bin to afford its lifter good purchase.
- [31]It was not in contest that one sensible precaution against the risk injury was the minimising of the quantity of ice placed in the bin. This matter was commented upon by Dr McDougall although he was not requested to suggest a solution. Notwithstanding that it seems obvious that the manner in which the capacity of the bin could have been reduced without impacting its functional utility would have been by placing a false bottom or some other inhibitor inside the bin itself. I do not think the absence of expert opinion on this matter is necessary. Any number of practical solutions of minimal or no cost given the nature of the problem are obvious. I think it is reasonable to infer that any such solution would have entailed minimal, if any cost.
- [32]It follows that I am satisfied that in the circumstances a reasonable person in the position of the defendant could have taken precautions against the risk of injury to the plaintiff. There the defendant failed to do so and thereby breached its duty to the plaintiff.
- [33]Given my findings I am satisfied that there is both factual causation between the breach of duty and the injury and further that the scope of liability of the defendant extends to the injury so caused. That is to say, had the measures proposed by Dr McDougall been adopted, it would have protected the plaintiff from injury and indeed it is likely the injury would have probably been averted: Woolworths Ltd v Perrins [2015] QCA 207 at [173].
Lifting risk
- [34]I am satisfied the lifting load was approximately 15 kilograms. I have addressed the manner of the lift earlier. One other element is relevant. That is, as the load was being lifted the plaintiff was able to pull the load closer toward her chest than had been initially considered by either expert. Initially it was believed that the load was held extended (by horizontal reach) about 300 millimetres from her body. The initial assumption by Dr McDougall was that this distance was greater which impacted the safe lifting weight.
- [35]However notwithstanding his earlier opinion, once he had seen the plaintiff demonstrate the movement of the lift he affirmed his earlier view that less than 90 per cent of adult female workers would have the shoulder movement strength to perform the task and thus the lift constituted a greater lift than the design recommended lift which posits the modern ergonomic approach to control risk of musculoskeletal injury by designing lifting tasks acceptable to at least 90 per cent of the workforce. The lift here exceeded that criterion.
- [36]Lifting risks are well-recognised. The risk could have been readily obviated my limiting the ice load contained in the bin. The risk is one which I am satisfied the defendant ought to have known of. It was not an insignificant risk. It was reasonably preventable as Dr McDougall opined by a reduction of the bins size (capacity) to limit a maximum load of 7 kilograms for a female or 13 kilograms for a male. I do not think expert evidence is required to address the relatively straight-forward measures that would be open to achieve this.
- [37]In my view, had the defendant put in place measures to ensure the load did not exceed 7 kilograms, the plaintiff would not have been injured. This could have been achieved either systemically by a system of instructions and/or mechanically by limiting the quantity of ice able to be loaded into the bin. Had these or similar measures been adopted I am satisfied the plaintiff would not have been injured.
Training and Instruction and Supervision
- [38]Coupled with the features of poor design and excessive load it is clear inadequate instructions on lifting to address the plainly foreseeable and not insignificant risk added to the occurrence of the incident. Dr. McDougall averted to in his report the lifting risk should have been considered in the context of the workplace and reasonable precautions adopted such as appropriate instructions provided. It is clear from the evidence that while initial induction training was provided there was no continuation or refresher training. No instruction was given about any specific risk such as the peculiar situation created by the ice bin. Had there been adequate instruction it is likely no injury would have occurred. Instruction and training themselves would not constitute burdensome requirements.
Liability Summary
- [39]In summary I am satisfied the plaintiff suffered an injury in the course of lifting an ice bin weighing about 15kgs an she was required to do in the course of her employment. The injury occasioned by the lift was caused by the negligence of the defendant in failing to either:
- Design a safe place and system of work;
- Expose the plaintiff to a lifting risk; and/or
- Fail to have in place proper training and instruction regimes.
Quantum
The Plaintiffs Injuries
- [40]The plaintiff suffered immediate symptoms following the lift. She stated she felt immediate “hurt”, so put the bin down. She took no time off work or consulted a medical practitioner until May 2011. She stated she thought she had pulled a muscle and just expected it would work itself out. She took Ibuprofen and Panadol to address her symptoms but the pain continued and she complains, got worse.
- [41]In early May 2011 the manager asked her to move a sign. She told him she could not lift it because she had earlier hurt herself. He immediately arranged an appointment for her with a local GP, Dr Davey and matters progressed from there.
- [42]Upon presentation to Dr Davey he noted that she was “now” 52-years-old (DOB 28 October 1961) who complained of a hurt shoulder (“right is worse”). He referred her for X-ray. Radiology reported:
“No bony lytic lesion, fracture or dislocation seen. The glenohumeral and the acromioclavicular joints appear essentially normal. No significant osteoarthritic changes seen. No calcification of the pers articular soft tissues”.
- [43]The Radiology concluded: “essentially an unremarkable radiographic series of the right shoulder”.
- [44]On 24 May 2011 she presented for ultrasound of the right shoulder. Findings revealed, inter alia,
“No rotator cuff tendon tear or evidence of subacromial bursitis obelic impingement demonstrated. Moderate degenerative change and focal overlaying tenderness involving the chromino clavicular acromioclavicular joint suggestive of active inflammation. Is not responding to conservative therapy and ultrasound”.
- [45]Subsequently, Dr Davey recommended steroid injections in the shoulder. That treatment was administered which was noted to have been tolerated well without any acute complication.
- [46]In turn, the plaintiff was presented to Dr W Pretorius, orthopaedic surgeon. He opined that the plaintiff may have “bilateral biceps tendentious”. On the advice of Dr Pretorius she attended Capricorn Physiotherapy which noted that as at 23 February 2012 there had been some improvement following treatment over the preceding six months.
- [47]An MR arthrogram MRI right shoulder taken on 23 September 2011 found:
“An abnormal widening of the rotator internal interval with the margins of this interval appearing irregular and compatible with a tear… there is a small amount of fluid within the sub deltoid bursa, immediately caudal to the acromion”.
- [48]The Radiologist opined, inter alia, image revealed a tear of the rotator interval.
- [49]The plaintiff stated she continued with the cortisone injections and physiotherapy but found they provided no relief. The last report of Dr Pretorius related to a consultation on 15 September 2011. He referred to arranging for the MRI and seeing her following that procedure. His clinical notes revealed a follow-up appointment on 6 October 2011, but no further action on his part was taken at that or any subsequent dates.
- [50]The plaintiff complained her right shoulder did not get better and pain continued to increase. She says she developed a dependency on pain killing medication and lost confidence in the medical advice that she was receiving. She said she continued working for another two years, by which time the Travelodge had introduced new, heavier doona and she simply could not continue with her work, so she resigned from her employment.
- [51]Subsequently she was examined on behalf of the defendant by orthopaedic surgeon Dr John Walters. He noted the history relayed above. In addition he noted that the plaintiff had a history of two right shoulder dislocations in the past, one 16 years prior to the incident and another 12 months following that. He observed that some of the symptoms she described suggested “a degree of persisting instability”. This was also observed to be consistent with her X-ray from May 2011 which demonstrated a bony depression in the posterior aspect of the humeral head (a Hills-Sachs lesion) which is consistent with the prior history of shoulder dislocation. Clinical examination revealed no wasting although he noted slight restriction of extension of both shoulders which was observed to be symmetrical and he suspected, normal. He noted the plaintiff’s complaints that there was nothing she could not do, but that things “took longer”.
- [52]From the history, Dr Walters concluded he could make no diagnosis of shoulder pathology. He considered there had been a soft tissue injury to both shoulders. In his view it was consistent with the mechanism described by the plaintiff. However he also noted there was evidence of pre-existing degenerative change in the plaintiff’s acromioclavicular joint, and a history of recurrent dislocation of the right shoulder.
- [53]In summary, he considered the plaintiff had suffered a slight restriction of movement in the right shoulder and in accordance with the AMA Guides fifth edition equated at 2 per cent upper limb impairment which he attributed to a soft tissue injury on 30 January 2011. He did not consider that she had suffered any permanent impairment.
- [54]In addition he noted that she had had conservative treatment for both shoulders over the preceding two years with minimal overall benefit. He saw no clear indication she would benefit from further treatment and considered that if any intervention on the right shoulder was considered necessary, then this would be as a continuance of pre-existing pathology and not related to the injury.
- [55]At the request of her solicitors the plaintiff was presented to orthopaedic surgeon Dr A. Cook on 19 February 2014 for the preparation of a medicolegal report. After relaying the relevant background, history and examination he noted she continued to complain of pain in both shoulders but the right side being worse than the left. He noted examination at that time revealed no obvious swelling. He considered that she had sustained the following injuries:
“1.A soft tissue injury to both shoulders, right side worse than left;
- Mild secondary sub acromial obelic sub deltoid bursitis rightshoulder; and
3.Aggravation to the mild early degenerative changes of osteoarthritis right acromioclavicular joint”.
- [56]He considered that the plaintiff had more than sufficient time for the injuries to improve and thus he considered her condition to be stable and static. He noted that although the plaintiff had sustained a dislocation to her right shoulder “17 years ago and 16 years ago” this would not appear to have caused any significant injury to the right shoulder joint as the X-rays and MRIs did not have any significant degenerative changes in her right shoulder joint and the changes in the right acromioclavicular joint were noted to be mild and consistent with her age.
- [57]He assessed her level of impairment at 14 per cent permanent partial impairment based upon his view of the limited range of movement considered in the context of the AMA Guides fifth edition. In respect of the left shoulder he assessed that level of impairment at 11 per cent permanent partial impairment. Based on the combined values chart he assessed her overall disability at 8 per cent whole person impairment for the right upper limb and 7 per cent whole person impairment for the left upper limb giving 14 percent of permanent partial impairment taken on the body as a whole. He attributed that entire disability to the incident.
- [58]I note that earlier in his report he recommended treatment for the plaintiff by way of an arthroscopy of the right shoulder, but noting it was not possible to predict the outcome of that surgery until she had progressed some considerable way through her rehabilitation program.
- [59]Most significantly, Dr Cook assessed the plaintiff as having significant impairment of movement. This feature significantly informed his final assessment. He observed examination of the left shoulder revealed flexion was to 120 degrees, extension to 30 degrees, abduction was to 90 degrees, adduction was to 30 degrees, external rotation movement was to 80 degrees and internal rotation movement was to 70 degrees. In respect of her right shoulder he observed flexion of the right shoulder was to 110 degrees, extension to 30 degrees, abduction to 75 degrees, adduction was to 20 degrees, internal rotation was 60 degrees, and internal rotation was to 50 degrees.
- [60]This observation of limited movement put Dr Cook and Dr Walters in dispute. Dr Walters in the subsequent report noted:
“A major discrepancy between the report of Dr Cook and other observers is the range of movement in the right shoulder. It noted that Dr Cook recorded sideways abduction of the right shoulder to 75 degrees and the corresponding movement to the left shoulder to 90 degrees. In other words, neither shoulder could be abducted in a sideways arch to above the horizontal level. It is noted that no other observer has noted such a restriction of shoulder movement. In his initial assessment on 7.7.2011, Dr Pretorius noted full movement of the right shoulder, with the exception of a minor loss of internal rotation. Independent assessor Dr Conahan on 19.7.2013 noted a full range of movement of the left shoulder, and full movement of the right shoulder with the exception of a minor restriction of external rotation of the shoulder to 50 degrees. Dr Conahan assessed a 1 per cent permanent impairment for the right shoulder and a 0 per cent impairment to the left shoulder. At the time of my review I noted a full range of movement in the left shoulder and only a minor loss application and abduction of the right shoulder to 160 degrees. I assessed a 2 per cent upper extremity impairment”.
- [61]Dr Walters was further troubled by Dr Cook’s assessment, noting that given that Dr Cook essentially regarded the diagnosis as a soft tissue injury to both shoulders with sub deltoid bursitis on the right and with aggravation of a mild acromioclavicular joint arthrosis on the right, none of those pathologies, he opined, would be expected to cause such a restriction of shoulder movement. He noted it was also difficult to explain the fact that three independent examinations prior to that of Dr Cook all noted an excellent range of movement of both shoulders and only a minor restriction of the right shoulder.
- [62]In cross-examination these matters were all put to Dr Cook. He responded to this discrepancy simply noting that patients have “good days and bad days” and that he had “simply recorded the ranges of movement in her shoulders on the day that [he] saw her”.
- [63]Respectfully I generally prefer the evidence of Dr Walters to Dr Cook. Although Dr Cooks’ evidence on limitations of movement cannot be ignored I consider Dr Walters’ evidence more persuasive on the point. In particular, I note his observations that three different doctors examined the plaintiff at times more proximate to her initial injury and each observed significantly greater, if not a full range of movement in the plaintiff’s shoulders. Dr Walters’ view was reinforced by both the plaintiff’s failure to seek medical attention, a fact which of itself would suggest any difficulties were not overly troubling, and the absence of supporting evidence of significant injury in the x-rays/MRI scans and MR arthrogram.
- [64]In Dr Walters’ view the scans were largely normal and unexceptional for a woman of the plaintiff’s age and prior medical history. He opined that the factors evident were unlikely a consequence of trauma. In particular he noted a tear would include a pulling apart of the tendon with the tendon pulling off the bone and leaving a gap. Although a tear was addressed as such in one of the scans it lacked these features thereby suggesting it was minor or insignificant or poorly characterised in description.
- [65]My preference for Dr Walters’ evidence feeds into the assessment of total permanent disability provided by each of Dr Walters and Dr Cook. Dr Walters’ assessment of 1 per cent permanent partial disability of the left hand shoulder and 2 per cent of the right shoulder is clearly in accordance with the AMA guidelines applicable to the injury evidence. Dr Cook’s assessment is based upon values that he may have assessed on the occasion of the plaintiff’s presentation to him but which I do not think reflect the level of disability related to the injury sustained.
General Damages
- [66]It follows by reference to the Workers’ Compensation and Rehabilitation Act Regulations 2014 I assess the injury as an Item 97, minor shoulder injury. When regard is had to the injury itself, her ongoing pain and discomfort, aggravation of that pain occasioned by her efforts to work through it and the minor permanent nature of the impairment I assess the ISV level at 5 resulting in an award of $5,900.
Economic loss – Generally
- [67]The plaintiff continued working with the defendant after the event until she ceased employment in October 2013. In her evidence she stated that after working for more than two years post incident the level and frequency of the pain gradually got worse but matters were brought to a head when the Travelodge introduced new doona covers into its bedrooms. She complained that the weight of these covers was such that she could no longer comfortably attend to her duties and she in turn resolved to resign. She stated she felt that the job was making her shoulders worse and she needed a break from it. Accordingly she decided to leave the job so she could get some “complete rest”.
- [68]Her supervisor at the Travelodge, Ms Black gave evidence that she was a good worker and that she was aware that the plaintiff had injured her shoulders on the occasion in question and was concerned about her after that time. She noted that after the incident the plaintiff was not as flexible as she used to be and that she would tense up and sometimes have a pinched look in her face like she was in pain. She also observed that there was some minor adjustments to her duties following this incident.
- [69]Notwithstanding that evidence, which I accept, the fact remains as was outlined by Dr Walters, that the plaintiff, after initial treatment ending towards the end of 2011, continued to work for a further two years without the need for medical presentation. As he observed there was nothing sinister evident in the imaging clinically or in any other pathology. As he observed he was not able to identify pathology clinically or in imaging which would have made physical sense to preclude her from her former employment. The plaintiff’s behaviour is consistent with the view expressed by Dr Walters in his evidence at trial that if there was some trauma associated with the lifting of the ice bin its effect was temporary. As Dr Walters’ stated, if anything it was a soft tissue injury which would not be expected to cause a significant structural injury to the shoulder and it follows incapacity to perform her usual occupation.
- [70]At the time the plaintiff resigned there were other pressures upon her including the need to assist and care for her mother who had suffered a stroke and the presence of her family at the Gold Coast. I am satisfied that those factors, when coupled with some discomfort in her shoulder which was unrelated to the effects of her injury which by then had passed, motivated her decision to resign.
Past Economic loss
- [71]The defendant concedes that during the period of her treatment immediately following her referral to Dr Davey the plaintiff may have sustained some loss of income and accepts the sum of $1,500 as reflecting that loss. In the absence of that concession it is difficult to see any other loss under this head from her tax return.
- [72]In the circumstances I assess past economic loss at $1,500.
- [73]I assess interest on that sum at $86 (made up as $1,500 x 1.99% x 5.73 years x 0.5).
- [74]A sum of $135 ought to be allowed in addition on account of past loss of superannuation. That sum was made up as ($1,500 x 0.09).
Future Economic loss
- [75]In view of my finding concerning past economic loss I accept the evidence of DrWalters that there is no future economic loss and make no award. Likewise in respect of any future superannuation costs.
Future costs
- [76]The plaintiff claims for the cost of arthroscopic surgery at $15,000 together with associated costs. As I have earlier indicated I prefer the evidence of Dr Walters. In his evidence at trial he expressly addressed this matter. In short, while he accepted an arthroscopy as an appropriate investigative tool which would permit the undertaking of repairs in the course of the procedure he considered that now, four and three quarter years since the happening of the event its now too long out to be considered as an appropriate means of addressing the pathology extant. I understood his evidence on this point must be considered against the background of his other evidence generally. His statement in that regard must be considered in context. He had earlier expressed the view that the injury sustained was soft tissue and largely ought to have resolved. Accordingly while he recognised arthroscopy as an appropriate investigative tool which might render an ability to resolve matters that presented at that time, any such procedure would not be relevant to the injury sustained in this incident but rather to other pathologies. I accept that the plaintiff’s injury has now resolved and that no further treatment including arthroscopy is called for on account of it.
- [77]In summary, I assess the damages at $10, 434.38 made up as follows:
General damages$5,900.00
Special damages$7,650.25
Past economic loss$1,500.00
Interest on past economic loss$86.00
Loss of past superannuation$135.00
Sub total$15,271.25
Less WorkCover refund$4,836.77
TOTAL$10,434.48
Order
- [78]I direct the parties agree the terms of order for Judgment including costs and on default of agreement list the matter for mention.