Murray Goulburn Co-op Co Limited v Filliponi [2012] VSCA 230

Murray Goulburn Co-op Co Limited v Filliponi [2012] VSCA 230 - VSCA 2012 case summary — Zoe

[32]

I am left with a constantly stiff and painful neck and left shoulder. My symptoms vary depending upon my level of activity. I suffer daily headaches, in particular from the back of my neck in to my head, which only seem to be assisted by morphine. If I rest and take medication and move gently, my symptoms ease a bit, whereas with activity they get worse. If I hang out the washing I suffer increased pain, and likewise if I use a cobweb broom. If I do try vacuum cleaning my pain increases so I only do very small bits and then very slowly. I am restricted in the housework I can do, for example I now need a trolley to move pots. My cooking is restricted, I have difficulty lifting pots and pans, and even a full kettle aggravates my symptoms. Prolonged standing seems to increase my pain. I cannot wear high heel shoes and now only wear thongs and runners. I am limited in the lifting and carrying I can do because of loss of strength in my left arm and pain and stiffness in my neck and shoulder. I am restricted doing things with my arms raised. Driving seems to increase my neck and shoulder stiffness, and that also hinders my driving. I use the mirrors more now when driving and if I drive to Melbourne, need to stop and have a break to stretch and try and get more comfortable. I can no longer carry heavy bags when shopping because I get a pulling sensation and increased pain in my neck and shoulder. So now I do my shopping in small bursts and tend to use a trolley more. I have a 15 month old grandson and am restricted in activities with him which upsets me greatly. I can no longer ride horses, go camping or water ski which were all things I passionately loved before I was injured. I still walk my dog, but not as quickly or as far as I used to because I just don't feel up to it. I have become grumpy, irritable, short tempered and depressed because my life has been ruined by my injuries. I used to enjoy work and an active life, was always on the go, but this has all gone now. My future seems to be dismal. I was put on to anti-depressants about 6 months ago, but I hope not to have to take them for too long. I also want to try and stop taking morphine if I can. My sleep is usually very poor because of pain and discomfort, whereas previously I was a very good sleeper. This means that I am often very tired during the day and I often sleep during the day which I never used to do.

[34]

I continue to suffer left shoulder pain, worse with use, movement and activity. For example the pain increases if I elevate my left arm or if I have to stretch it forwards. The pain is constant and is in the shoulder joint. Repetitive use of my left hand and arm also increases the shoulder pain. The left arm feels weak, as if there is a loss of strength. I am continuing to perform home exercises, about which I learned when I attended the pain management clinic, as often as possible, about 4 times a week. To some extent I have been able to obtain a better range of movement, but I still have considerable limitations in respect to my ability to use and utilise and move my left shoulder and arm. For example, I do my bra up from the front, because it is too painful for me to put my arm behind my back. The constant pain I suffer from is a throbbing type pain.

I continue to suffer from chronic ongoing neck pain. I generally feel the pain in the back and sides of my neck, running into the shoulder blades, worse on the left. The pain also radiates into my jaw and ears and can be accompanied by headache. My neck is constantly cracking and creaking with movement, and when it cracks the pain increases. The pain at times can be severe. I have limitation of movement of my neck on both sides. The neck pain is constant and made worse by certain activities, for example the pain in my neck increases if I turn my head around quickly or when looking up, such as when I have to hang up the washing or reach into an overhead cupboard, which activities are consequently difficult for me.

Further, I have difficulty getting to sleep and quite often I awake during the night with pain in my left shoulder and neck which radiates to the back of my head with headache. When this happens I often take a Panadol Osteo or Valium to help get back to sleep. This will usually take about at least ½ an hour or so.

...

As a result of the injuries I have sustained to my left shoulder and my neck, I remain limited or precluded in the performance of a wide range of household, domestic, social and recreational activities. For example, before suffering injury I immensely enjoyed horse riding. I owned 2 horses and would go horse riding almost weekly, around the block and down to the river. I would go trotting and cantering. I enjoyed this a lot, and had been horse riding ever since I was a teenager. In addition to riding the horses, I had no problem caring for and looking after them. This included moving about bales of hay and bags of feed. I was able to carry around the heavy saddles and place these on the horse's back. I was able to crouch and stoop in order to check the horse's feet. This has now stopped because of my pain and restrictions. I only have the one horse now ... . I haven't been riding him since my injury. Now I just try walking him. There is no way I could go trotting or cantering with him. It is too difficult to prepare the horse in the first place, let alone ride him. I would have difficulty raising my right arm to ensure the bit was between his teeth. I would have the same problem getting the saddle onto him. Even walking the horse results in jarring of my neck. I also suffer from lack of strength in my left arm which makes it difficult to hold onto the reins. Consequently it has been a long time since I went riding. Nowadays it is my daughter who rides the horse.

Similarly, I now no longer go water skiing, an activity which I really enjoyed in the summer months in the past. We used to own a boat. We still do but nowadays it is just sitting there ... collecting dust. During summer we would go down to the river almost every week in order to go water skiing. The kids loved it as well. Now I can no longer do this, even though I would love to. We also enjoyed going camping down the river. We would do this in a bus which was all decked out for camping. The work involved with this would be difficult for me now. Prior to suffering my injury I also enjoyed spending time in the garden. I had a veggie patch and would do the digging and the planting. I no longer am able to dig and I no longer have a veggie patch. I also have difficulty pruning, for example the roses at my mother's house.

Chores around the house have also been impacted upon, in particular hanging the washing on the clothes line, washing, vacuuming, scrubbing the shower and bath and making the beds. I am also restricted in doing the cobwebs. This is the case both at my mother's house and my husband's house. Although I have moved out I still spend time there at my husband's house.

[46]

In March and April 2008, Mr Terrence Hillier, orthopaedic surgeon, saw the plaintiff at the request of Dr Frawley in relation to her neck injury. He said that the plaintiff had quite free movement of her shoulder and the rotator cuff issue was in reasonable abeyance. He said she had discomfort as she extends her head, suggesting that she may be getting some chronic apophyseal joint pain. He arranged to have a weight-bearing MRI scan performed, which demonstrated that she had a sound structure in her cervical spine. He said that her neck had tightened up at the C5-C6 level, with loss of normal cervical lordosis, consistent with her having developed some adhesive capsulitis. He thought the only way to unlock this was to carry out a rotational stretch under a general anaesthetic, which would require a stay in hospital for some two days. The plaintiff sought a second opinion from Mr Richard Bittar, who did not approve of the treatment and, accordingly, the treatment was not pursued.
Mr Hillier reported in June 2010 that the latest MRI scan was pleasing and confirmed that at no stage had the plaintiff suffered any structural damage to discs, cervical spinal cord or the vertebral bone. He felt this fitted with his ongoing diagnosis of a longstanding, chronic soft tissue injury which has seen her tighten up in the neck. In a report to her general practitioner on 1 September 2010, Mr Hillier felt, with conservative treatment, she should improve. He added Lyrica to her medication.
In February 2011, Mr Hillier reported to the plaintiff's solicitor that he had not seen the plaintiff since September 2010. He was satisfied that her cervical spine was structurally sound. He said she had a basal neck pain, suggesting some persisting adhesive capsulitis in the lower facet joints, and noted that she had relatively good neck movement. He thought she was capable of performing her normal work.
On 10 September 2010, Dr Alfred Chehade, general practitioner, reported to the plaintiff's solicitor. He said the investigations, in particular the MRI, showed no structural damage to the discs, cervical spine tract or the vertebral bone. He adopted Mr Hillier's diagnosis of longstanding chronic soft-tissue injury. It was Dr Chehade's view that the plaintiff's left shoulder and neck pain were work-related, that she could not return to pre-injury duties and, after a long period of time not working, it was uncertain whether she would undertake any light or suitable duties.
Mr John O'Brien, orthopaedic surgeon, saw the plaintiff at the request of her solicitor in November 2008 and August 2009. In November 2008, he noted that the plaintiff had undergone a number of investigations without any specific diagnosis and she was not responding to conservative treatment. He said her physical signs were subjective and predominantly related to the cervical region, although there was some variable restrictions of movement and definite extensive area of local tenderness. He could not find specific shoulder pathology. He described her as suffering a Regional Pain Syndrome of the neck, left shoulder and arm pain. He thought the plaintiff required management of her chronic pain and suggested a multidiscipline pain management program. He thought it highly likely that the plaintiff was totally and permanently incapacitated. He said the plaintiff's general activities are significantly restricted and there was permanent limitation of domestic, social and recreational pursuits.
In August 2009, he said that her physical signs remained subjective and did not demonstrate clear definitive pathology in the cervical spine, lumbar spine, or shoulder. Further, the symptoms and signs demonstrate a Chronic Pain Syndrome which was being influenced by psycho-social factors. He thought her prognosis was relatively poor. He noted that the plaintiff described a substantial distribution of pain, which really indicated a significant level of disability. He thought it was possible her situation was permanent, although he was optimistic of a positive result from a multidiscipline pain management program, which would enable her to contemplate light duty employment on a limited hours basis. He thought she was restricted in her general, domestic, social and recreational activities, which was likely to be a permanent situation.
On 20 May 2011, Mr Kenneth Brearley, surgeon, medically examined the plaintiff at the request of her solicitor. On examination, he noted no tenderness or deformity in the neck and said she had a full range of movement. In relation to her left shoulder, he said there was no obvious wasting. There was moderate limitation of movement and the remainder of her left arm was normal. There was no neurological defect in either arm. It was his opinion that there was little concrete evidence to substantiate a diagnosis of her left shoulder pain or the pain she had in the neck. He noted that all investigations showed no significant abnormality. He thought it was probable she had a softtissue injury of the neck, resulting from repetitive trauma caused by heavy work with her employer. He said, in relation to the left shoulder, there was no tear of the rotator cuff, nor any other significant finding other than tendinopathy. He thought the tendinopathy would have been produced over a long period by repetitive minor or minimal trauma, which would have been caused with the work she was doing with her employer. He accepted that the left shoulder and neck injuries would have precluded her in relation to her social, domestic and recreational activities, which are likely to continue for the foreseeable future. In coming to this assessment of the consequences of the plaintiff's injury, Mr Brearley combined the two injuries, which is not permissible. He thought her prognosis was reasonably good and he said there was no good reason why she should not be able to return in the foreseeable future to suitable work, initially part time, and possibly increasing to full time.
In July 2011, Associate Professor Richard Bittar saw the plaintiff at the request of the plaintiff's solicitor. It was his diagnosis that the plaintiff had symptoms related to aggravation of cervical spondylosis and cervicogenic headaches. He noted that she had a left shoulder condition, which was beyond his area of expertise. He thought her work was the significant contributing factor. It was his view that she would suffer from ongoing pain and disability into the foreseeable future. He thought she needed further investigation and treatment by a pain specialist. He thought her headaches may be amenable to occipital nerve stimulation.
It was his view that domestic activities are limited. She cannot engage in significant cleaning (vacuuming and scrubbing) and her ability to engage in gardening is limited. She socialises less due to pain. He said she no longer horse rides, water skis or camps. Her physical cervical spine injury and impairment did restrict the plaintiff in relation to social, domestic and recreational activities, which he thought would continue for the foreseeable future. He thought she would be precluded or restricted in relation to her employment or activities involving lifting, standing, as well as repetitive sudden or extreme neck movements. He considered that such incapacity will continue for the foreseeable future. He thought, in theory, she had a physical capacity to perform sedentary work on a part time basis. However, taking into account her age, education, training and skills, it is extremely unlikely that she will be able to procure such a position and carry out such a role in a regular and reliable fashion.

[48]

Dr James Rowe, specialist occupational physician, saw the plaintiff at the request of the defendant's insurer in November 2005. It was his opinion the plaintiff had bilateral rotator cuff tendonitis and aggravated degenerative osteoarthritis of the cervicothoracic vertebrae. He noted that the injury had occurred over approximately eighteen months. He thought her work was a contributing factor and thought she could return to work immediately.
In March 2007, he noted she was working full-time. He did not think she required ongoing treatment, apart from an occasioned analgesic and five or six massages per year. He thought her condition had improved considerable since he last saw her. Dr Rowe reviewed the plaintiff in March 2007. He thought it was within her capacity to lift a 10-kilogram block from the production line or from the floor to the production line.
Mr Paul Kierce, orthopaedic surgeon, performed an assessment on the plaintiff in September 2008. He diagnosed a left rotator cuff tendinopathy and aggravation of minimal cervical spondylosis. He accepted her injuries were work related. He said the pain resulting from her shoulder condition and neck condition has incapacitated her in respect to her work duties and has affected her ability to do her housework and to resume horse riding. He considered the left shoulder condition, together with the right shoulder and neck disorders, prevented her from returning to her pre-injury employment. He thought she had suffered an aggravation of minimal underlying cervical spondylosis. He said ninety per cent of her symptoms of neck pain were due to her employment injury.
In December 2009, Mr Michael Shannon, orthopaedic surgeon, saw the plaintiff at the request of the defendant's insurer. He noted that the plaintiff had sustained soft tissues injuries to her neck, left shoulder, girdle and left wrist.
Mr Ian Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant's solicitor in June 2010 and again in July 2011. It was his view that the plaintiff had disproportionate symptoms of neck pain and restriction of movement. He thought in the left shoulder she had symptoms and signs of mild tendinosis or degeneration of the rotator cuff tendons, with possibly an associated bursitis manifesting as some shoulder pain and restriction of movement. He said the complaints with respect to pain in the left shoulder were out of proportion to the physical findings. He could not identify other factors which would be contributing to the plaintiff's condition. He thought she demonstrated functional signs of impaired neck movement of a severe degree, which he believed had no organic basis. He accepted she had some pain and restriction of the left shoulder movement, but the pain level seemed out of proportion to the pathology evident clinically and radiographically. He thought she had the capacity to undertake certain duties; namely, meter reading, possibly stock taker, export coordinator, sales professional/assistant and unrestricted work as a console operator.
In a further report in August 2011, Mr Jones responded to the report of Associate Professor Bittar, who took the view that the x-ray changes were constitutional aging in the cervical spine. Mr Jones said he believed she had recovered from the affects of any possible aggravation. He did not believe her work had caused the MRI scan changes or the symptoms of which she currently complained.
The defendant relied upon the clinical records of the plaintiff's general practitioner which extended over the period July 2004 to May 2008. There was a summary of the medication prescribed from February 2003 to December 2008. Prior to September 2005 the plaintiff was being prescribed Valium. The plaintiff was prescribed Valium in January 2004 to September 2005 on seven occasions.

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)

Murray Goulburn Co-op Co Limited v Filliponi [2012] VSCA 230 (21 September 2012)

Parties

Legislation Cited (2)

Cases Cited (13)