[2017] VMC019
[2017] VMC 19
•2 November 2017
| IN THE MAGISTRATES' COURT OF VICTORIA |
AT MELBOURNE
G12903687
| ANGELA NANDAN | Plaintiff |
| v | |
| KEILOR HOSTEL FOR THE AGED ASSOCIATION INC. | Defendant |
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MAGISTRATE: | Magistrate B R Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18, 19 October 2017 |
DATE OF DECISION: | 2 November 2017 |
CASE MAY BE CITED AS: | [2017] VMC019 |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Injury to Both Shoulders and Psychological Reaction – Termination of Weekly Payments – Whether “No Current Work Capacity” Likely to Last Indefinitely – Suitable Employment - Whether Ability to Work Part-Time Constitutes “Current Work Capacity” – Accident Compensation Act 1985 s.5 “suitable employment” “current work capacity”, 93C(1)(a)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Arnold Thomas Becker |
| For the Defendant | Mr N Dunstan | Wisewould Mahony |
HIS HONOUR:
1 Mrs Nandan is a 51-year-old former personal care assistant who seeks reinstatement of weekly payments of compensation. Those payments were terminated by way of a 130-week notice pursuant to the Accident Compensation Act 1985 (“the Act”) as at 9 July 2016.
2 She has an accepted injury to her right dominant shoulder as a result of taking the weight of a patient on 14 June 2013 (“the work incident”) when employed by the defendant (“the Hostel”). She also alleges she has a consequential overuse injury to the left shoulder and consequential psychological injury as to which the Hostel does not admit liability in its Defence. She alleges she has “current work capacity” likely to continue indefinitely.
3 Mrs Nandan and her GP, Dr Arora gave evidence before me. Otherwise, both parties tendered medical reports and other material.
4 Mrs Nandan was employed by the Hostel from July 2006 until about March 2015 when she was told there was no further work available. At that stage, she was working 15 hours over three days per week. The employment at the Hostel was the only employment she has ever had, save for some two to three week on-site training positions for the purposes of certificates.
5 She was educated to Year 11 in Fiji and came to Australia in about 2004. Her duties involve showering, toileting, dressing and feeding both high-care and low-care patients. There were about 70 patients at the Hostel. In addition, she did cleaning and other tasks including recording patients' complaints or health issues, etc. on a computer.
6 It is not disputed she could not return to her pre-injury duties.
7 After being injured on 14 June 2013, she was off work for a few weeks and returned to work on part-time restricted duties. She was referred a Mr Hussaini, an orthopaedic surgeon, who gave her some cortisone injections and eventually operated on the right shoulder on 4 April 2014.
8 After a few months off work, she returned to work after a manipulation under anaesthetic on 18 August 2014. She was put under strong painkillers, muscle relaxants and anti-nausea medication. After the surgery, she said over-relied on her left arm and developed left shoulder pain as well about one year after the work incident.
9 Again, she returned to work on part-time restricted duties to 15 hours per week until she was put off work in about March 2015. She has not returned to paid employment since.
10 Since ceasing work, she underwent a hydrodilatation on 24 August 2015 and has also had three cortisone injections to the left shoulder.
11 She continues to take three different opioids, namely OxyContin, Tramadol and Palexia. She is also on Temazepam, presumably as a muscle relaxant, Nexium for her stomach and Maxolon for nausea. She also takes Lyrica. She did see a psychologist about 12 times from June 2015.
12 She said Mr Hussaini did not believe surgery to the left shoulder was warranted, having regard to her poor recovery for the right-sided surgery. However, she has been referred to Mr Bernard Lynch, an orthopaedic surgeon, for a second opinion and is due to see him in the next few weeks.
13 She has also been treated by a Dr Mundae, a rheumatologist and Dr Muir, a pain specialist. He gave her some radiofrequency treatment which did not help her pain. She also went to the Dorset Rehabilitation Centre for about five weeks, but could not continue there as the Authority would no longer pay for her taxi fares there. She has also completed two basic computer courses.
14 She continues to have major symptoms to her right shoulder involving constant pain, difficulties in lifting and undertaking activities of daily living such as showering herself. She says her left-sided symptoms have got worse this year and she now gets numbness into her left hand.
15 She says she has side effects from her medication, involving drowsiness and interference in her ability to drive more than five minutes. Although her GP gives her medical certificates for 15 hours per week on restricted duties, she says she is not able to perform any work.
16 In cross-examination, she was taken through her resume that she had submitted when applying for employment at the Hostel. She admitted that it was not true that she had worked in a supermarket in Fiji and was proficient in MS Word, Excel and the Internet. Initially, she said her daughter had prepared the resume and later in the case, she said it was done by her sister-in-law's sister.
17 She was also taken through her job description as to some of the clerical and administrative tasks in her role at the Hostel. This appears to have been limited to detailing, recording and updating various aspects of lifestyle, symptoms and other details in a dedicated specific software program on the Hostel's computer system.
18 She has also had a supervisory role at some stage, working on Saturdays for three months in which she supervised four personal care attendants. Again, this appears to involve her using an in-house computer software to record details of patients, though on a more expansive basis than what she would do normally.
19 In the last few months of working at the Hostel, she worked five hours a day, three days per week, having rest breaks as needed. She was doing very simple office tasks and feeding patients. She said she was using her left hand mainly and got tired and drowsy with the medication.
20 Her son and her husband mainly drove her to and from work. She agreed her GP gave her medical certificates for seven hours a day for three days per week for about eight months in 2015. That period was during and after the period she last worked there.
21 Her husband had settled his own legal proceedings for a back injury and was now working occasionally. He had had cardiac issues in the past but she had not been stressed about that. She said she continued to work at that time.
22 She was taken through various suggested clerical administrative jobs suggested by Nabenet and Dr Bloom, which I will detail later. Initially, she agreed that she had told Dr Bloom that could perform at least some of the tasks, or at least give them a try.
23 She then said that she did not remember those conversations with Dr Bloom. Later, she stated that she had much more pain now since March 2017 to the left shoulder and was not able to work at all. She said she was unable to concentrate and felt tired easily with her medication. She now said Dr Bloom had not detailed the tasks in the various occupations to her. Eventually, she agreed that she probably could perform most of the tasks as a lifestyle/leisure coordinator in recording various histories of patients.
24 She was only able to drive for five to ten minutes without taking a rest break. She was unable to use public transport as it may be necessary for her to stand or hang on to a strap or pole. She said she was always in pain, even at rest, with the left shoulder hurting more over recent times. She did not work about the house, though maybe could dust with the one hand. Her husband and her 73-year-old mother cooked and did other household tasks.
25 She had applied for a number of lifestyle/leisure coordinator jobs in the past without success. She said she could not do them now because of pain, drowsiness and inability to concentrate. Any movement of her arms increased the pain. She could not see herself returning to any work. She said she had very limited skills despite the two computer courses. She could use the internet, but was unable to send an email. She agreed that she may not have discussed the effects of the medication with her doctor. That completes my summary of her evidence.
26 Her GP, Dr Arora, was called to give evidence. He adopted five medical reports he had prepared in this case. He had first seen her for her right shoulder condition on 12 September 2013. He detailed her treatment in those reports and stated she had "felt quite stressed." She also developed symptoms in the left shoulder and the insurer had accepted liability for payment of injections to the left shoulder for underlying sub-acromial bursitis. She had a right shoulder rotator cuff strain and bursitis and left shoulder bursitis. She had post-traumatic neurosis, gastritis and reflex esophagitis.
27 In January 2016 she could perform modified duties with no lifting above shoulder height, weight restriction to 5 kilos, no pulling or pushing with the shoulders and driving short distances only.
28 In November 2016, he certified her to work up to five hours per day for three days per week. By May 2017 both her shoulders had stabilised and she was under the care of a pain management specialist, which was the case as set out in his medical report of 16 October 2017. By then he had referred her to another specialist, that is Mr Lynch, for a second opinion on her left shoulder. Her recent gastroscopy had determined she had grade 2 esophagitis and gastritis. He thought then she could not do any work because of her bilateral shoulder problems. The previously discussed work restrictions were now only a possibility in the future. She needed occupational therapist assessment prior to working with restrictions.
29 In evidence before me, he said that in March 2015, she was working 15 hours per week and there was pressure from the rehabilitation advisors to increase her hours to 21 hours per week. That is for an extra two extra hours per day. He thought there was no real difference between those numbers of hours per day. Despite still certifying her accordingly, he did not believe that she could work at all because of her medication. She needed to finish her active treatment first and have an occupational therapist assess any proposed suitable employment.
30 She was on three opioids as recommended by her pain management specialist and she also had gastric issues. Her left shoulder treatment had been accepted by the Authority but not for any psychological/psychiatric treatment. He said that she needed counselling.
31 She also needed to cease her medication before working. The side effects of that medication were constipation, drowsiness, a general slowing down, nausea, gastric irritation and interference in her ability to drive. She was being seen by another orthopaedic surgeon for possible left shoulder surgery. Over the last few years there had not been much recovery.
32 Dr Arora was cross-examined in some detail as to why he had been giving her detailed medical certificates as to duties and hours for some time but did not believe that she was capable of working. He did not really address that apparent contradiction but appeared to be saying that the medical certificates were theoretical and were to address her former job. It was difficult to understand his explanation.
33 He said that she had mentioned feeling tired as a result of the medication but this was not in his notes. He encouraged her to keep working at the time when she was working 15 hours per week and even to 21 hours per week, but this was before her left shoulder condition became apparent.
34 She could drive up to 2 to 3 kilometres but should not use public transport if it required her to stand. She still needed rest breaks if working, as constant work would aggravate the pain.
35 Three short reports to her GP from Mr Hussaini were tendered, the last being dated July 2014 which was just before her right shoulder manipulation under anaesthetic. He was then concerned about her not responding favourably to the sub-acromial decompression and had thought that she may need rheumatological assessment. At that stage, she had good left shoulder movement after complaining of pain to him. He found positive impingement and an irritable rotator cuff.
36 Four short reports to her GP from Dr Mundae, a rheumatologist, were tendered together with a final report to her then solicitors in October 2015. He first saw her on 12 November 2014 complaining of adhesive capsulitis in the right shoulder and sub-acromial bursitis to the left shoulder. The left shoulder symptoms had developed soon after the right shoulder injury. He injected the left sub-acromial bursa and hydrodilatated the right shoulder on 24 August 2015.
37 In October 2015, he thought that she had a pain syndrome. He suggested she see a pain specialist. She was awaiting an injection to the left shoulder which did not seem to be stable. There is no more recent material from Dr Mundae.
38 Three more recent reports were tendered from Dr Andrew Muir, a pain management consultant. He had first seen Mrs Nandan on 19 November 2015 which was after her hydrodilatation. She then had more pain to the right shoulder, worse than the left. Pain to the right was aggravated by activity to the right shoulder. She had a "profoundly reduced range of motion of the right shoulder and restriction to range of movement of the left shoulder."
39 After five consultations to December 2016, Dr Muir thought she needed a pain management program and radiofrequency procedure to the right shoulder. Meanwhile, he thought she still might regain a significant work component capacity with treatment.
40 In his final report in June 2017, he reported on the radiofrequency treatment and nerve blocks to the right shoulder. She had had an increase in pain and he increased her "palliative analgesics." He thought she had a doubtful prognosis and likely to suffer ongoing pain, worse on the right side than the left indefinitely. She was likely to require ongoing supervision of pharmacotherapy and potentially repeated analgesic procedures.
41 In conclusion, he said she had no current work capacity, and on the balance of probability, was not likely to regain one.
42 I note that she was referred to the Dorset Rehabilitation, apparently in late 2016, though no report was tendered.
43 Completing the medical and other treatment materials, a short report was tendered from Laura Agosta, a psychologist dated June 2015. She had then seen Mrs Nandan twice and said that she had an adjustment disorder with depressive features caused by her workplace injury.
44 Two independent medical expert reports were tendered by her Counsel. She was examined by Dr Ash Chehata, an orthopaedic surgeon, on 22 November 2016. There is no list of medical reports he had for the purposes of his report, though he does refer to some radiological material and describes the GP’s and Mr Hussaini's treatment in some detail. He also took an adequate and detailed history. At that date, she had had three cortisone injections to the left shoulder and was awaiting radiofrequency treatment to the right shoulder.
45 On examination, he found the right shoulder was worse than the left. He diagnosed bilateral adhesive capsulitis with associated bursitis. He thought the left shoulder injury issue was caused through overuse because of the right shoulder issue. The left was less severe. She had no capacity for employment and a very limited range of movement to the right shoulder.
46 She needed further pain management, including a psychological assessment for possible medication for potential depression and anxiety. She had almost a “flail” arm, with regards to range of movement and strength due to severe pain, poor coping mechanisms and probably a psychological component.
47 She was also assessed by a Dr Joseph Slesenger, an occupational physician on 15 December 2016. He detailed a large amount of background treating medical material for his report. He took a detailed history from her including her medication, but not referring to Palexia, an opioid.
48 On examination, there was gross restriction to the range of movement on the right shoulder and less severe loss on the left side. He diagnosed a soft tissue rotator cuff injury on the right side requiring surgery, as well as adhesive capsulitis and chronic pain syndrome. On the left side, she had a soft tissue injury, sub-acromial bursitis and rotator cuff tendonitis. The left side was secondary to the right-sided injury because of avoidance to the right side.
49 He said that she was not fit for pre-injury duties, had no transferrable skills or experience and had limited computer skills. She had no capacity for alternative suitable employment. He did not anticipate a significant alteration to her right sided symptoms in the foreseeable future. He was more optimistic as to the left side. He anticipated she may respond to treatment by way of a multi-disciplinary approach to her rehabilitation. He was optimistic as to an improvement, rather than deterioration, in the foreseeable future.
50 That completes the material tendered on behalf of Mrs Nandan.
51 Counsel for the Hostel tendered three independent medical expert reports and two vocational assessment reports by a "rehabilitation consultant" and an “occupational therapy / injury management consultant” respectively.
52
She was examined by Dr John Lange, an occupational physician. on
10 February 2016, some 21 months ago. He does not detail the background material he had for the purposes of his report but refers to some radiological material, the NES Vocational Assessment report and a report from a psychiatrist, Dr Krapivensky, which report was not tendered to me.
53 She had had two injections to the left shoulder when he examined her and was due to start the Dorset Rehabilitation treatment. On examination, there was no wasting of either shoulder and there was a loss of normal movement, 50 per cent and 40 per cent respectively for the right and left shoulders. He thought that she was fit for part-time restricted duties commencing four hours per day, and slowly building up after two months with lifting to 3 kilos, but not above shoulder height. He thought that she could be fit to return to normal duties after a further two months. Not surprisingly, he thought that she should reduce her OxyContin and Tramadol. She was capable of driving and using public transport. She was not a candidate for further surgery and her shoulder injuries had stabilised.
54 She was also examined by Dr Michael Bloom, an occupational and environmental physician, on 20 March 2017. He had a fair mix of medical reports from Dr Arora, Mr Hussaini and Dr Mundae. He took a very detailed history and noted her medication intake.
55 On examination, he noted a subtle wasting to the right rotator cuff. The passive range of movements of the left shoulder was significantly greater than the active. There was no possibility of passive movement to the right shoulder due to severe pain response. He accepted the degenerative process in the right shoulder was exacerbated and/or aggravated by the work but was sceptical that the left shoulder problems were due to overuse because of right shoulder issues. He thought that "by all accounts, she had a reasonable level of computer literacy."
56 He thought that she was fit for semi-sedentary duties with physical restrictions for 12 hours per week up to 20 hours per week over six to eight weeks, with an incremental increase to full time over a further eight week period. He addressed the various suggested occupations in the Nabenet report, i.e. a customer service representative/ information officer, a contact centre operator, retail sales assistant, receptionist and leisure lifestyle assistant.
57 In general terms, he thought that she had the physical capacity to perform the jobs and had most, if not all, the necessary skills. He said she told him she had the necessary skills or ability to train in them. He thought that she was adequately motivated to return to work. The primary barrier related to the lack of suitable work opportunity and "adverse psychosocial factors" were to an extent secondary to that.
58
He was later supplied with a Recovre vocational assessment report and
Dr Shan's second report which I will detail later. The Recovre report identified three suggested jobs with actual employments in her general local area, namely an inquiry clerk in Epping, a receptionist at a community centre and a lifestyle leisure assessment in an aged care facility in nearby areas. He only had reservations as to some of the tasks in the latter job, i.e. the lifestyle leisure assistant.
59 She was examined by Dr Dush Shan, a psychiatrist, on 21 March 2017. He also had a large number of reports from treating doctors and Ms Agosta. In addition to her right shoulder, she had noted considerable pain and numbness in the left shoulder and a tingling to the left hand. She said she was very anxious and was depressed at times. He believed she had a mild adjustment disorder with mixed anxiety and depressed mood. He thought that she should reduce her analgesics, have psychological counselling and be prescribed an antidepressant. He thought her psychiatric condition of itself did not constitute incapacity for pre-injury duties or for suitable employment.
60 However, there were restrictions in the manner in which she could interact in a customer service position or work involving high levels of self-confidence. Consequently, he thought she was not fit for positions as a customer service representative, an information officer, contact centre operator or receptionist.
61 He was later sent the clinical notes of Ms Agosta and the Hillcrest Medical Centre, that is Dr Arora's practice, as well as Dr Bloom's first report. In particular, he noted attendance on the GP in January 2012 and December 2011 in which Mrs Nandan complained of stress, anxiety and depression in relation to her husband's illness as well as some somatic complaints over a period.
62 He now revised his opinion and stated "it now appears that the patient had a pre-existing psychiatric diagnosis which would account for the majority of her ongoing symptomology." From the viewpoint of her work-related adjustment disorder, he believed that she was fit for her pre-injury duties or suitable alternative duties, including those occupations he excluded in his previous report.
63 The Nabenet Vocational Assessment Report dated 6 May 2015 was tendered. It was prepared by a "Rehabilitation Consultant" of unknown experience or qualifications. She based her report on the two medical reports from Dr Arora dated 16 April 2015 and Dr Malcolm Brown dated 21 April 2015, neither of which was tendered to me. However, the writer of that report notes that Dr Brown stated she did not have a current work capacity then. Dr Arora was certifying 21 hours per week on restricted duties at that stage.
64 I see no need to go through the five suggested job descriptions. Of more relevance is whether the various medical practitioners thought that she was fit for those duties, ignoring the fact that they are generic job descriptions only (see, Richter v Driscoll [2016] VSCA 142 at [125] et seq.
65 A vocational assessment report from Recovre dated 3 May 2017 was also tendered. The writer of that report identified herself as an occupational therapist/injury management consultant, but did not set out her qualifications or experience. According to the report, the only background medical material supplied for the report was Dr Bloom's first report and the Nabenet report.
66 The writer stated Dr Bloom assessed Mrs Nandan as having the physical capacity to undertake suitable employment despite referring to "adverse psychological contribution" resulting in amplification of pain and disability.
67 Of course, physical capacity alone is not enough to satisfy the definition of “suitable employment” (see, Richter v Driscoll (supra) at [78] and [92-93]. As stated, the writer assessed the roles of three different actual jobs about 20-36 minutes' drive time from Craigieburn. I will address the suggested “suitable employments” later in these Reasons.
68 That completes the medical and related material tendered in this case.
69 Counsel for Ms Nandan submitted that his client wanted to work and was indeed doing 15 hours per week when she was told there was no more work available. She had never been certified as being fit for any more than 21 hours per week. Her medication alone would preclude her from being a reliable and regular fulltime worker. She was restricted in driving beyond very limited periods. He submitted Dr Shan's change of mind, as to her capacity to undertake the suggested employment tasks, was ill founded and illogical.
70 Even if I was satisfied that Mrs Nandan told Dr Bloom she could undertake the suggested employments, that is not enough in itself, referring to the decision in Savic v Salmat [2010] VSCA 303 at [55]. He also referred to various aspects of the judgment in Richter v Driscoll that I have already referred to.
71 Counsel for the Hostel attacked Mrs Nandan's credibility based on her evidence on her resume, her apparent backtracking on agreeing with Dr Bloom that she could undertake various suggested jobs and her denial of computer literacy.
72 Dr Arora had given unsatisfactory evidence in continuing to certify 15-21 hours per week for suitable employment, despite his evidence that he did not believe she was capable of working at all. Dr Lange had stated she was fit to drive. Dr Slesenger did not believe, in December 2016, that the left shoulder was an ongoing issue. Dr Chehata's opinion was coloured by the statement he believed that she spoke poor English and had a psychiatric component which was not the case.
73 He also submitted at least tentatively that being fit for suitable employment for 15-21 hours per week established a “current work capacity” in itself.
74 I now proceed to make my findings.
75 In view of the submissions as to Mrs Nandan's credibility, I need to consider that aspect first. Certainly I was concerned about a number of aspects of her evidence. I do not believe that she was consciously trying to mislead the court. Rather, I thought that mostly she agreed too quickly with a number of propositions put to her and then thought about her answers more carefully. At times she had made appropriate concessions, for example, stating that the claimed supermarket employment in Fiji did not take place.
76 That is not to say I accept all her evidence supporting her case was correct on face value. Any credit issues were not so serious that I should dismiss her case solely on that basis. However, I do consider her evidence particularly as to the backtracking and changes in evidence in the context of the other medical evidence.
77 I next consider the claimed injuries. The injury to her dominant right shoulder was accepted, as well as the proposition her injury continues and prevents her from returning to her pre-injury duties at least.
78 The Statement of Claim pleads a consequential left shoulder injury and psychiatric reaction. As stated, the Defence simply "does not admit" any such alleged injury apart from the right shoulder. It was not the subject of any submission from Counsel for the Hostel anyway. The only medical report to question the consequential relationship of the left shoulder was from Dr Bloom.
79 I do accept on the balance of probabilities based on all the medical evidence, particularly that of Dr Chehata and Dr Slesenger, that she has sustained a consequential left shoulder injury. That is not to say I accept that she now has severe problems with the left shoulder. The only complaint of such deterioration in the medical material before me was to Dr Shan. I note she still has to see Mr Lynch for a second opinion as to whether she needs surgery to that shoulder.
80 The medical reports from Mr Hussaini, the earlier surgeon, are too dated and do not set out the more recent symptomology as to the left shoulder in particular.
81 I accept that she has continuing symptoms to the left shoulder, less severe than the right, which do play a part in limiting any capacity for work. That is, she could not lift above shoulder level on the left side.
82 As to her psychological condition, I also accept that she has a work-related adjustment disorder with anxiety and depression consequentially upon her work-related injury. Even Dr Shan initially accepted that in his first report. Curiously, upon noting two attendances for stress and anxiety and a reference to some attendances for somatic conditions, he no longer thought her anxiety was work-related but was pre-existing.
83 This opinion ignores her lack of significant treatment, and the fact that she continued to work, at that time. Further, he does not consider the question of any aggravation of a pre-existing anxiety by this specific right shoulder injury. I do not accept his opinion in that regard and believe that opinion is at least naïve in view of his lengthy experience in his field.
84 I now turn to the real issue in this case as to whether Mrs Nandan has a “current work capacity” or “no current work capacity” not likely to continue indefinitely.
85 Counsel for the Hostel at one stage submitted that an ability to work for 15-21 hours per week of itself constituted a current work capacity in itself. I do not accept that proposition, certainly in the case of a worker who is working full-time hours in employment prior to and at the time of a work-related injury. The situation may be different where a worker was only working part-time prior to and at the date of injury (see, Bennie v CGU [2005] VCC 1392)
86 In Dennett v Murray Goulburn (County Court, Judge G.D. Lewis, del. 12 October 2001) the court had to consider a case where a worker had undertaken part-time work as the manager of a country football League after his weekly payments ceased. He was only paid for his expenses in that regard. The court held that this did not demonstrate a “current work capacity” (see also, Buck v VWA (County Court, Chief Judge Waldron, del. 7 September 1994)).
87 Further, in considering “suitable employment” the word “employment carries with it the idea of return to work "as a settled or established member of the wage earning workforce" as referred to in Richter v Driscoll (supra) at para. [75]. A situation where a worker returns to work for half the hours undertaken before sustaining a work-related injury would appear to be contrary to that notion.
88 The situation would be different if a return to work on a part-time basis was on a short temporary or transitional basis to work up to full-time work. It would be difficult in most cases, I agree, for any worker to realistically return to full-time work immediately after being off work for more than 130 weeks as a result of an injury. The need for a worker to initially return to part-time work on an interim basis and work up to full time over a limited period does not exclude there being a “current work capacity”.
89 I am satisfied that Mrs Nandan does have “no current work capacity” that is likely to continue indefinitely at this time. I accept she is not fit to undertake any “suitable employment” at all or for 15 – 21 hours per week, even on an initial basis
90 I have already noted comments as to a number of the medical reports in this matter. I have difficulties with the reports and opinions of Drs Bloom and Lange for the reasons I have outlined. I accept the recent opinions of treating doctors. Dr Arora and Dr Muir in that regard. On all the material, she still has significant pain and limitations to the use of her dominant right shoulder after surgery and extensive follow-up treatment. It is not disputed that she is not fit for her pre-injury duties.
91 Dr Lange has not seen her for some 21 months. Dr Bloom specifically refers to her physical capacity to undertake suitable employment. Unfortunately, she was not able to continue recent rehabilitation after the refusal of her continuing taxi expenses there, on her evidence. It seems to me that rehabilitation treatment, across a variety of modalities, is required for her to regain capacity for work. In addition, she has at least some continuing problems with her left shoulder which would also hinder her in her ability to perform even “suitable employment”.
92 Many of the doctors involved in this case refer to continuing psychological factors. The only psychiatrist in this case, Dr Shan, refers to the need for antidepressants. Certainly, she has had limited psychological treatment in the past. One of her continuing problems is the long-standing prescription of three different types of opioids, amongst other medications. As Dr Shan points out, she needs to reduce such medication for antidepressants to be effective. The side effects of that medication are a continuing problem as well. Further rehabilitation is required to reduce such dependency.
93 It is difficult to see how she could work regularly and reliably while she is on such extensive medication, including the opioids. She would require rest breaks as needed at odd times, and for varied periods, at least initially. I cannot see how she could return to work on a full-time basis after about 16 weeks on a part-time basis when she is still on three different opioids, amongst other treatment.
94 At the very least I accept that she has difficulties with activities of daily living because of her overall work-related health state. I accept that she has difficulties in driving safely more than moderate distances because of her medication, at the very least.
95 She is not fit for suitable employment including the occupations suggested by Nabenet and Recovre. Dr Shan, and even Dr Bloom, excluded a number of such occupations. She has very limited computer literacy, her previous experience apparently being limited to an in-house specific computer program. Whether or not she is able to use email would not advance her capacity for work, even if she did exaggerate her inability to do such.
96 She is also limited to an extent by living in an outer metropolitan area because of necessary driving distances and restrictions in travelling on public transport.
97 Having regard to her continuing dominant right arm problems at least, I accept that there would be issues if she was required to stand while travelling on buses and/or trains. Taking into account the factors in the definition of “suitable employment’, she is not able to return to work in the suggested suitable employments.
98 I find her “no current work capacity” is likely to continue indefinitely. She still has a very uncertain future having regard to the high amount of significant medication including three opioids, the need for psychological, psychiatric and rehabilitation treatment and the reasonable possibility of future physical treatment for the problems to both shoulders.
99 She is entitled to an order for reinstatement of her weekly payments from 9 July 2016.
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