To Ha Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65

To Ha Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65 - VSCA 2000 case summary — Zoe

[9]

Before dealing with the grounds of appeal that were pursued, I shall set out briefly the relevant background facts. The plaintiff, who is now aged 53, was born in Vietnam on 22 January 1947. He commenced employment as an unskilled worker in the shoe factory of the first respondent in October 1990, not long after arriving in Australia. Initially, he worked as a cutter, but in 1995 he was transferred to another job which required him to remove each day approximately 600 pairs of shoes from moulds on a conveyor belt. The work was repetitive and necessitated the application of some force through his arms in order to pull the shoes out of the moulds. In about July or August of 1995, he began experiencing pain on the outer side of his right elbow and just above it. He also experienced minor pain in the right forearm. At or about the same time he started to feel pain in the same places in his left arm. Notwithstanding the progressive increase in pain in those areas the plaintiff continued to work at his job, each day pulling shoes off the moulds. Attempts were made to make it easier for him to do his job by putting soap and then wax on the moulds, but the difficulty persisted and the plaintiff's pain became worse. According to the plaintiff's evidence, on 4 September 1995, while he was performing his duties, he was struck by a mould weighing approximately two kilograms which fell one to two feet off the conveyor belt and struck him on top of the right shoulder in an area close to his neck. The plaintiff claims that this caused him to experience ongoing pain in that area, but despite this and the pain in the elbows, he continued to work until 15 September 1995 when he attended Dr. Chan, his general practitioner in relation to his condition. His complaint to the doctor was, at that stage, confined to the pain in the elbows. Dr Chan suggested that the plaintiff make a claim on WorkCover, which he did on 19 September 1995. Consistently with the complaint he made to his doctor, the claim form refers only to his elbow injury and makes no mention of any injury to his right shoulder or neck. The first respondent accepted that the plaintiff had sustained injuries arising out of or in the course of his employment and made payments to him under the Act. It also accepted that the plaintiff had sustained permanent impairment of his neck and "right upper limb" for the purposes of ss.98 and 98A of the Act.

[10]

Not long after submitting his claim under the Act, the plaintiff returned to work for about a week during which time the symptoms continued to worsen and he effectively remained off work until August 1996. In the meantime, he saw a number of medical specialists. When he returned to work in August 1996, he continued to claim that he was having difficulty in performing the work and had to cease work after about one and a half weeks. He again attempted to return to work in March 1997, but was advised by Dr. Chan to stop work after two weeks. The plaintiff told his Honour that he experiences pain on the outer side of his right elbow radiating up into his upper arm and down into his forearm. He said that he also has pain in his right shoulder and the right side and centre of his neck. His right arm lacks strength and movements in his right elbow, shoulder and neck are restricted. He said that he cannot lift his right arm above shoulder level and that he has similar symptoms in his left arm, albeit to a lesser extent. He said further that he would not now be able to perform his former work as cutter or on the conveyor line because of the problems with his arms. Apart from being unable to work, he is also restricted in day-to-day activities by his injuries. He cannot lift even moderately heavy weights, and lacks power and strength in his right arm and shoulder. He cannot sit with his head held forward in one position for any length of time. He said that all this has affected his performance of domestic tasks including driving his motor car in which he cannot travel for any distance. He said further that, because of his condition and because he has been unable to return to work, he has become very depressed, anxious, nervous and frustrated. He worries about his financial situation and believes that there is no future for him. He exhibits typical features of a depressed person; he has become withdrawn, has difficulties with his memory and concentration, and with sleeping. He frequently loses his temper and patience with people for no apparent reason.

[21]

Dr. Shan, a psychiatrist, opined that the plaintiff was suffering from a major depression which was largely untreated. He concluded that, given that there was some objective evidence of a physical injury, "it would seem reasonable to conclude that at least some of the depression has developed as a consequence of or secondary to his physical injury." He went on to say, however, that "[t]he major component of depression is . . ., in my view, due to a pre-existing chronic Major Depression that has remained largely untreated." Dr. Lenaghan, a physician, found that there was little objective evidence of "organic disease or disability of either upper limb", but that the plaintiff presented as a depressed person. She said that the plaintiff "might get an ache or a pain from a bit of degenerative arthritis in the right acromio-clavicular joint", but she attributed this to normal ageing and wear and tear and not to the incident of September 1995. She concluded that the plaintiff's incapacity was psychological and not physical. Dr. Webb, who is a senior rheumatologist at St. Vincent's Hospital, said that he did not believe the shoulder injury caused any permanent impairment. In one of his reports, however, he did say (after he was shown that the plaintiff had demonstrable pathology in his right shoulder) that the plaintiff suffered from a disease in his rotator cuff which may well have been present for a lengthy period of time "and any effect that the injury of 4 September 1995 would have had would only be partial in so far as the overall situation in the shoulder". Dr. Webb concluded that the plaintiff's inability to work was not the result of any physical or organic condition which resulted from the September 1995 injury. His view was that, although the plaintiff was then not fit for any employment, his incapacity was primarily due to his depression; only to a much lesser degree was it the result of his problem with the shoulder. Moreover, Dr. Webb opined that at the time of the report one could not state that the plaintiff had any permanent impairment. He said that:-

[23]

Dr. Rowe, an occupational physician, diagnosed the plaintiff as suffering from "a ruptured right rotator cuff complicated by tendonitis". He assumed that the rupture and tendonitis were a direct result of the blow to the shoulder and also to the work he was performing prior to receiving that blow. He concluded that the plaintiff suffered a "serious injury" to the right shoulder in that he was totally incapacitated, although in his view, that was only a temporary total incapacity for work. Mr. Ian Jones, an orthopaedic surgeon, reported that the changes in the right shoulder were essentially degenerative, and that "approximately half of [the plaintiff's] current disability was related to an aggravation caused by the nature of his work." He opined that the plaintiff's employment by the first respondent has been a minor contributory factor to his shoulder and elbow complaint. Mr. Clive Jones, also an orthopaedic surgeon, who examined the plaintiff for the purposes of an AMA Impairment Assessment, reported that the plaintiff had a moderately painful stiff neck, a right shoulder problem due to a rupture of the rotator cuff and an epicondylitis of the elbow. He believed it was unlikely that the plaintiff would be able to return to work where heavy use was required of the right arm, particularly in repetitive tasks such as he had previously been doing. Mr. King, an orthopaedic surgeon, said, inter alia, that based on the plaintiff's history and his own findings, the plaintiff suffered from bilateral "tennis elbows" which was a painful condition associated with rapid repetitive use of forearms and hands. The mould that struck his right shoulder seems to have caused a chronic rotator cuff lesion of the right shoulder of mild (to moderate) severity "with some painful limitation of all glenohumeral movements". He assessed the plaintiff's overall loss of function in the right upper limb by reference to the combination of the rotator cuff lesion of the right shoulder and the right tennis elbow.

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Judgment (47 paragraphs)

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