McMillan v Victorian WorkCover Authority [2018] VCC 831

2 She remained at work, and in 2011, and again in 2013, increased her work hours eventually to full time. She remains working full time at the Austin undertaking clerical work, handling files and scanning documents.

3 She claims that a range of recreational, domestic and social tasks and duties have been affected by the injury.

4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") for injury suffered in the course of Ms McMillan's employment on 2 December 2003.

5 The body function said to be lost or impaired is the left shoulder and arm. The application is thus brought under ss(a) of the definition of "serious injury" contained in s134AB(37) of the Act. Leave is sought in respect of pain and suffering only.

6 Ms McMillan was the only witness called to give evidence and be cross-examined. Two affidavits sworn by her, treating and consultant medical reports, and clinical notes, were tendered into evidence. I shall not refer to all of this material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.

7 Ms McMillan was born in 1955. She was forty-eight at the time of the workplace incident, and is now sixty-two.

8 Prior to working at the Austin, she worked for twenty years in clerical and administrative positions. She started with the Austin in 1997 as a computer clerk. This involved obtaining and filing medical records and data entry. She worked nights, about sixteen hours per week.

9 She and her partner enjoyed holidaying at Dromana where they had an on-site caravan. They had an active social life. She enjoyed gardening and knitting, together with a general range of domestic activities.

10 On 2 December 2003, Ms McMillan was reaching above shoulder height to retrieve a file which was jammed in among other files. The file started to tip and she supported its weight using her left arm. She felt a twinge of pain in the left shoulder. She reported the injury.

11 It was not until 29 January 2004 that she went to see her treating general practitioner, Dr Irene Rose, about the injury. Dr Rose said the incident was "mentioned in passing".

12 Ms McMillan returned to see Dr Rose on 24 March 2004, complaining of ongoing pain in the left shoulder which was affecting her sleep. Dr Rose arranged an ultrasound of the left shoulder which reported:

"No cuff tear. Mechanical block to abduction. Some mild degenerative change on x-ray."[1]

13 Ms McMillan remained under the care of Dr Rose, attending regularly over the years,[2] until that practitioner's retirement in August 2015. She then came under the care of Dr Ken McHenry.

14 Dr Rose noted Ms McMillan was using Panamax for the pain, and prescribed Voltaren Rapid twice per day. Ms McMillan continued to complain of pain and restriction of movement of the left shoulder and was referred to physiotherapy in June 2004.

15 According to a report of Sarah Cutland, physiotherapist, she treated Ms McMillan over a considerable period and achieved a decrease in pain and an increase in movement of the left shoulder up until January 2006. At that point she said:

"... At discharge she had 95% return of movement and no functional limitations ... ."[3]

16 Dr Rose referred Ms McMillan to Mr Anthony Bonomo, orthopaedic surgeon, in July 2004. He obtained a history of pain and stiffness in the shoulder typical of adhesive capsulitis or frozen shoulder. He said that there was a natural tendency for spontaneous resolution after some months. He arranged two steroid injections into the left shoulder joint which helped with Ms McMillan's symptoms. He provided instruction as to exercise at home. He said:

"I've arranged to review her again in six weeks, if the symptoms fail to resolve completely."[4]

17 Ms McMillan remained at work following her injury, although she claimed that work, in particular at or above shoulder level, caused particular problems with her left shoulder. She complained to Dr Rose of difficulties with hanging washing on the line, making her bed, swimming, golf, and pain which disturbed her sleep. Dr Rose prescribed analgesia and anti-inflammatory medication.

18 In August 2015, Ms McMillan came under the care of Dr McHenry. He received a history that her shoulder pain had fluctuated over the years, but became worse in cold weather. Her symptoms were aggravated by activities which involved lifting and the use of her shoulders. By the time of his report of May 2018, Dr McHenry concluded the situation had stabilised.

19 Ms McMillan has remained working at the Austin through to the present time with very few days off for the shoulder injury. In May 2011, her hours increased to almost twenty-three hours per week. In July 2013, her hours increased again to a full forty-hour-per-week shift. She works in a department of the Austin where medical records and patient files are scanned into digital format. She handles many thousands of pieces of paper per day in extracting documents from files, scanning them, and then replacing them.

20 Ms McMillan was cross-examined extensively about the increase in her work hours following the injury. She said that she applied for the full-time position because she had previously been working on night duty and did not have the support of her co-employees. She said there was more support when she was on day shift.

21 She admitted that in around 2010, over a period of about two years, in addition to her work at the hospital, she worked for a friend at a local fruit shop, up to four to five hours per day, two to three days per week. The work varied and, at its peak, she would work fifteen hours a week. There was no reference to this work in her affidavit.

22 Further, she said that she sought full-time work because she and her family needed the extra money. Her explanation in that regard was rather unconvincing.[5]

23 According to her affidavits, she says the pain in her left shoulder is constant, and is referred down the arm and into the neck. It increases during the course of her working day and she needs the evening to rest. She struggles with the heavier aspects of housework, which are undertaken by her husband. It is difficult to pull clothes over her head, do up her bra, and wash her hair. It is even difficult cutting her food. She regularly uses a heat pack and still undertakes exercises at home. Her sleep is affected and she wakes when she turns onto her left shoulder. Gardening and knitting, which she had previously enjoyed, are significantly affected. She has trouble driving because she has difficulty pulling the steering wheel. She no longer plays golf. She and her husband sold the on-site caravan at Dromana because it was difficult for her to clean. The pain in her shoulder is worse in the colder weather.

24 According to her affidavit, she takes Comfarol Forte (Panadeine Forte) two to three times per week, Celebrex (an anti-inflammatory) two to three times per week, Panadol Osteo or Panadol several times per day, and uses Voltaren Gel. She takes Stilnox to help her sleep. Ms McMillan's affidavits give the impression that the prescription of medication is in respect of the left shoulder, but she admitted in cross-examination the prescription was not only for that shoulder, but in respect of injury she suffered to her knees and consequent lower back pain.[6]

25 It became evident from a medication list of August 2017, produced by her general practitioner,[7] that the prescription of Codalgin Forte, Stilnox and Voltaren was commenced or re-commenced at the time she had problems with her knees.

26 In January 2014, Ms McMillan suffered injury to her left and right knees when she fell on a pathway outside her work. She went to see Dr Rose, and was prescribed anti-inflammatory and pain-relieving medication. She had physiotherapy with Ms Cutland in February and March 2014. X-rays of the knees revealed mild osteoarthritis.

27 According to a history she provided to the consultant occupational physician, Dr Gary Davison,[8] the injury to her knees led to pain and restriction in the lower spine. She had difficulty with standing or sitting for prolonged periods. In 2017, she told Dr Davison there was a constant ache in both knees which also felt stiff. Walking any distance, especially up inclines, was difficult. Using the stairs caused an increase in her symptoms. The difficulties carrying out her heavier housework were contributed to by the knee pain, as was work in the garden, vacuuming, and other domestic and recreational tasks. Her sleep was affected by back and knee pain.

28 In evidence, she said that the worst pain was the shoulder pain. She admitted that the restrictions in her social life, recreational activities, mobility and generally many of the activities referred to in her affidavit as being affected by her shoulder pain, were also due to the pain in her knees and back.[9]

29 Ms McMillan was examined by Mr Kenneth Brearley, surgeon, in March 2018. He noted a recent ultrasound-guided steroid injection carried out by Dr McHenry in September 2016. She complained of constant discomfort in the shoulder, with pain referred to the neck. Mr Brearley was told that although she worked full time, she avoided moving heavier files. She still did some lifting above her shoulder, which was an integral part of her job, and handled three to four thousand sheets of paper for scanning, and another five thousand sheets for preparing documentation, on a daily basis. He noted that she attended a pool most weekends to carry out exercises. On examination, there was marked limitation of shoulder movement. Mr Brearley diagnosed adhesive capsulitis of the left shoulder, resulting in significant stiffness and pain in the joint. He thought she was restricted in her domestic and recreational activities and could not do heavy work. He thought the prognosis was poor.

30 Ms McMillan was examined by Dr Davison in November 2017. He received a history of the injury to her knees, and consequent pain and restriction to her back. He noted Ms McMillan had been an insulin-dependent diabetic for twenty years. He reviewed an ultrasound report of 9 September 2016, which concluded:

"... 'Small intra-substance tear of the supraspinatus tendon and mild tendinosis/fibrosis of the subscapularis tendon. The patient has moderate subacromial bursitis. The findings also favour moderate degree of adhesive capsulitis'."[10]

31 Dr Davison considered Ms McMillan had some bilateral subacromial bursitis causing shoulder impingement, but was unable to identify the cause. He suggested she would benefit from weight loss. He said:

"Ms McMillan has widespread symptoms of aching pain and stiffness affecting the neck, both shoulders, upper back, lower back and both knees. The symptoms suggest that Ms McMillan is suffering from generalised degenerative osteoarthropathy as part of a generalised metabolic disorder which includes diabetes and hypertension, all of which are probably related to an obese body mass index.

...

It is reasonable to accept that Ms McMillan may have a degree of bilateral subacromial bursitis which is causing some bilateral shoulder impingement. I cannot identify the specific cause, other than constitutional degeneration ... ."[11]

32 I accept, in the course of her work on 2 December 2003, Ms McMillan suffered a soft tissue injury to her left shoulder. The initial ultrasound showed some degenerative change without a tear to the rotator cuff. Although a subsequent ultrasound of September 2016 did show a small tear of the supraspinatus tendon, it is not clear whether that was related to the original injury.

33 I accept the work incident has resulted in moderate subacromial bursitis and a moderate degree of adhesive capsulitis, as found by Dr Davison. I do not accept the part of his opinion that the shoulder condition is related either to her body mass or some constitutional degenerative disorder. It is clear Ms McMillan has been treated on a regular basis since the incident by Dr Rose.

34 I did not find Ms McMillan a particularly satisfactory witness. Although there was some reference in her affidavit to the medication that she has been prescribed providing assistance for the problem with her knees and back, the impression I gained, both from her evidence in Court and her affidavit, was that the medication was related to her shoulder problem. Given many of the prescriptions were made at the time she developed knee and back problems, I conclude that the reason for the prescription was more related to her knee and back than her shoulder.

35 I was further unimpressed with her evidence that over several years she worked in a fruit shop up to fifteen hours per week. That matter was not disclosed in her affidavit, nor to the doctors she has consulted. Further, in the course of cross-examination, the reason she provided for extending her hours to full time was quite unbelievable. I am satisfied that the reason that she increased her hours was because she had the capacity to do so and, obviously, because of the extra money she would earn.

36 As a result of these matters, I do have reservations about Ms McMillan's credibility. I do not accept that the various recreational, domestic and leisure activities which she claims have been affected by her left shoulder injury, are as significant as she would have it. Moreover, I am satisfied that the restriction in those activities, at least since 2014, is caused predominantly by her knee and back problems, rather than her left shoulder injury. I am not satisfied the plaintiff has satisfied the onus to disentangle the consequences of her knee and back problems from those of her left shoulder.

37 Of most significance in the assessment of whether the consequences of the left shoulder injury meet the statutory test is that Ms McMillan has not only returned to work, but increased her hours in a job which requires very significant use of her arms, in managing the medical records. She handles thousands of pieces of paper per day. It is difficult to understand how someone could undertake such work given the constant aching pain and restriction in the shoulder of which she complains. I am of the view that the problems with her shoulder, both in terms of the pain and the restriction, are not as severe as she would have it.

38 Ms McMillan has little in the way of treatment for her shoulder at the present time, and I do not accept her evidence that, of the various areas of her body which she says have been injured, the shoulder is the worst. The scans undertaken of the area do not reveal any significant pathology. While I do accept she has a degree of pain and restriction in her left shoulder due either to bursitis or adhesive capsulitis, I do not accept that the restrictions are particularly significant. In fact, her work capacity has increased over the years.

39 I am not satisfied that the consequences of the injury meet the statutory test.

[2] The dates of the plaintiff's attendances upon Dr Rose were detailed in the final address of counsel for the plaintiff - Transcript ("T") 99-100

[6] Although in her affidavit, at PCB 18-19, she states: "Both knees still feel stiff and there is usually a dull pain present ... The knees will become painful if I have to stand too long or walk up stairs or on sloped or uneven ground. I use Voltaren Gel on the knees. Fortunately, I also get pain relief from the same tablets that I take for my shoulder."