Acevska v Harris Scarfe Australia Pty Ltd

[2013] VCC 402

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-11-01300

RUMA ACEVSKA	Plaintiff
v
HARRIS SCARFE AUSTRALIA PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February and 1 March 2013
DATE OF JUDGMENT:	15 March 2013
CASE MAY BE CITED AS:	Acevska v Harris Scarfe Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 402

REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Impairment of the right shoulder and cervical spine – Chronic Pain Syndrome – psychiatric impairment – pain and suffering – loss of earning capacity.
LEGISLATION CITED – Accident Compensation Act 1985, ss134AB(16)(b), s134AB(37) and (38)

CASES CITED – Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167.

JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett	Patrick Robinson & Co
For the Defendant	Mr C Miles	Wisewould Mahony

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on 18 September 2008 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.  There, “serious” is defined relevantly as meaning:

“(a)   permanent serious impairment or loss of a body function.”

4       The body function relied upon in this case is the right shoulder.

5       The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe behavioural disturbance or disorder.

Outline of Section 134AB

6       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

7       The impairment of the body function must be permanent.

8       The plaintiff bears an overall burden of proof upon the balance of probabilities.  Apart from the general burden, ss(19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.

9       By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

10      The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious.

[1][1998] 3 VR 833

[2](1995) 21 MVR 314

11      Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[3]

[3]See also Phillips JA at 858 and Charles JA at 860-861 to similar effect

12      A chronic pain syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]

[4][2005] VSCA 227

13      I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

14      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.

15      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

16      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.

17      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

18      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica[6] in reaching my conclusions.

[5](2005) 14 VR 622

[6](2006) 14 VR 602

19      The plaintiff relied upon two affidavits and gave viva voce evidence.  Dr Sison, the plaintiff’s general practitioner and Mr D’Urso, neurosurgeon, were required to attend for cross-examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

20      The plaintiff is presently aged forty nine, having been born in March 1963 in Macedonia. 

21      Having completed Economics of Tourism and Hospitality at university, the plaintiff married in 1987.  Later that year, she migrated to Australia with her husband.

22      In her early years in Australia, the plaintiff was engaged in home duties looking after her young family.  From 1999 to late 2000, she undertook some cleaning work and also worked as a room attendant in a hotel and as a food attendant. The plaintiff’s health was good and she was able to undertake rapid, repetitive and heavy work.

23      The plaintiff commenced employment with the defendant on 16 October 2000. In the financial years 2006 to 2008, the plaintiff earned $27,000, $32,000 and $28,000 respectively.

24      On said date, the plaintiff suffered injury when she was unloading boxes from a pallet.  That task required her to stretch up as the boxes were above head height.  The pallet she had been unloading had been placed on an empty pallet.  As she stretched above shoulder height to slide the top box of men’s shoes off the pallet, the box came to the edge and fell, landing on her right shoulder and neck, causing her to twist and injure her lumbar spine (“the incident”).

25      There was extensive cross-examination about the plaintiff’s differing accounts of the mechanism of the injury. The plaintiff confirmed a large box, weighing roughly fifteen kilograms, containing many pairs of shoes fell and hit her right shoulder. The heaviness of the box actually twisted her body when it fell on her shoulder.[7] The box did not strike her neck.[8]

[7]Transcript (“T”) 37

[8]T39

26      The plaintiff confirmed the two versions of the incident in both claim forms were both correct.

27      At the time of the incident, the plaintiff was earning about $570 gross per week.

28      The plaintiff explained she did not feel any symptoms in her neck at the time of the incident because there was strong pain in her shoulder and she “could not separate the pain of the shoulder or the neck.”[9]

[9]T39

29      In re-examination when asked to indicate the site of her original pain, the plaintiff pointed to her right shoulder, going down the right side of her head, her neck to the middle of her back. She initially thought the injury was to her right shoulder.[10]

[10]T70

30      The plaintiff reported the incident to her supervisor, Pat, who advised her to see the assistant manager. In cross-examination, the plaintiff confirmed she made this report when it was put to her that Pat denied this was the case. The plaintiff did not recall Toan Nguyen working with her at the time of the incident.

31      Later that day, the plaintiff left work and saw Dr Sison, her general practitioner, later that day.  In cross-examination the plaintiff said that maybe she mentioned something about her neck to Dr Sison when she told him her shoulder was hurting. He prescribed medication and certified her unfit for work for one day and sent her for an x‑ray and ultrasound.

32      In cross-examination, the plaintiff explained that she had thoracic pain at the time of the incident which gradually became worse and worse.[11]

[11]T40

33      In September 2008, Dr Sison referred the plaintiff to Ms Liu, physiotherapist, who she saw for treatment until April 2010 when WorkCover terminated funding.

34      On 20 January 2009, Dr Sison referred the plaintiff for a CT scan of her thoracic and lumbosacral spine. The plaintiff continued under his care until March 2009 when he referred her to Dr Middleton, occupational physician, for further treatment. 

35      The plaintiff returned to work on light modified duties on the Monday following the incident, initially working in the warehouse and later in the office.

36      The plaintiff continued that work until 31 August 2009 when the defendant withdrew her duties. In cross-examination the plaintiff said she was upset because she felt she had been let down by the defendant who did not appreciate her. She agreed she felt she could have been given work in a retail outlet but she could not explain what job she thought she should have been offered. She did not know what she was able to do anyway as her ability to work was less and less - “what I was able to do for my employer I had already done, and in a way they took my health and I felt really disappointed.”[12]

[12]T49

37      The plaintiff stated that while she was working with the defendant and doing light duties, she was able to do her duties and wanted to keep working. She agreed, if there were light duties and she was able to do them, then she would have stayed with the defendant but “her health was getting worse and worse.” [13]

[13]T50

38      The plaintiff described how “everything came up together with the injury and after that I was not the same person”. [14] She suffered from worsening headaches, neck, mid and low back pain and she gradually realised she was not able to work.[15]

[14]T50

[15]T51

39      The plaintiff initially said she first told Dr Middleton of the onset of neck pain but then said she told Dr Sison when she saw him on the said date.[16]

[16]T54

40      In her 20 October 2010 affidavit, the plaintiff deposed to frequent pain and restrictions in her neck, both shoulders, right arm and hand, low back, both legs with her left substantially worse. She also suffered from anxiety and depression.  She described limitations in activities above shoulder height and general domestic activities. 

41      In 2009, the plaintiff earned $29,000 and the following year, $20,700.

42      In her second affidavit, sworn 18 December 2012, the plaintiff deposed she had had a great deal of treatment. 

43      In 2008, Dr Sison sent her for an injection and in 2009, Dr Middleton gave her an injection in the shoulder. In 2010, the plaintiff had a left shoulder injection performed by Dr Middleton, which was necessary because she had left shoulder problems as a result of overusing her left while guarding her right. 

44      The plaintiff started a pain management course in February 2010 at St Albans but could not cope physically and did not finish it. In cross-examination, the plaintiff confirmed she could not manage the psychology sessions in that course because she had headaches, and too much pain in her shoulder blade, back and neck and she could not concentrate when in pain.[17]

[17]T43

45      The plaintiff also could not cope with a long interview with Flexi in early 2012. She could not even attempt to undertake the testing that was requested and had to move around every ten minutes. [18]At the time of that interview, she was suffering from strong shoulder and back pain, headaches and numbness on the whole right side of her body starting from her head down to her back.[19]

[18]T45

[19]T45

46      The plaintiff agreed that she told Flexi that sometimes her back pain is so bad she thought death would be better.[20] 

[20]T56

47      In 2011, the plaintiff was referred to Mr Soo, specialist, who gave her two shoulder injections with a large needle which was painful and frightening.  The plaintiff obtained temporary, but not permanent, relief from this treatment.

48      In about November 2011, the plaintiff’s lower and upper spine pain became unbearable. She then attended Dr Sison as Dr Middleton was unavailable and he sent her for further scans.  The plaintiff was given a patch for her pain. The plaintiff’s pain was so bad on 7 December 2011 that she attended Sunshine Hospital. 

49      The plaintiff presently sees Dr Middleton about every two weeks and he gives her certificates and provides prescriptions. The plaintiff takes usually two to four Panadeine Forte a day, Inderal, three tablets a day, and uses patches. 

50      The medication affects the plaintiff’s stomach and she has pain and indigestion and gets constipated.  She takes tablets to reduce pain but does not like taking them.

51      In cross-examination, the plaintiff confirmed she is taking medication constantly. She uses the painkillers and the patch for the pain in general but mainly for her shoulder. [21]

[21]T 53

52      The plaintiff continues to see Mr Soo.  He wanted to do a shoulder operation but WorkCover refused to fund that procedure. It also refused to pay for the neck operation which cost the plaintiff $6,000.

53      The plaintiff and her husband are not in a position to pay for further shoulder surgery.  Therefore she understands Mr Soo is going to give her further injections.  He gave the plaintiff a steroid injection in the right medial scapular border on 17 December 2012.

54      The plaintiff also sees a psychiatrist, Dr Kumar, every few months.  He has prescribed Endep, Diazepam and Cymbalta.  He changed the medication quite a bit over time.  Recently, Cymbalta was changed to Lovan.

55      The plaintiff takes this medication but is still very depressed and upset and feels she is not the person she was.

56      The plaintiff has self funded physiotherapy about every two to three weeks.  She uses a TENS machine most days and at times she has also had acupuncture and massage and used hot packs. The plaintiff also had three months of hydrotherapy which WorkCover approved.

57      Dr Middleton referred the plaintiff to a neurosurgeon, Mr D’Urso.  As the plaintiff had some problems with a carpal tunnel, which confused the situation, she had right carpal tunnel surgery in March 2011 and recovered from that condition.

58      Thereafter Mr D’Urso performed surgery to the plaintiff’s neck at Epworth Hospital (“Epworth”) on 8 June 2011.  She understood he fused several vertebrae together in the operation (“the neck operation”).  The plaintiff had hoped to get a significant reduction in her neck and right shoulder pain from that procedure but while it helped, the neck operation did not cure her and she continues to have pain.

59      In cross-examination, the plaintiff agreed that the neck operation helped a little bit, giving her a small relief of shoulder pain.[22]

[22]T55

60      The plaintiff’s left leg is worse than her right limiting her ability to walk. Everything contributes to her inability to sit or stand for a long time.[23] Her whole body is awkward when she walks. The plaintiff has headaches every day.[24]

[23]T57

[24]T58

61      The plaintiff has not had any employment since being put off by the defendant.

62      The plaintiff’s husband was a truck driver.  He also injured his shoulder in a work accident in relation to which he had to stop work. He is now more able than the plaintiff and he helps care for her and receives a Carer’s Pension in that regard.

63      The plaintiff cannot exist without her husband. He helps her with various tasks, such as dressing, due to her range of physical problems.[25]

[25]T63

64      Prior to injury, the plaintiff both worked and brought up a family.  She was happy, cooked and did housework, including vacuuming, mopping, washing and ironing. Since suffering injury, the plaintiff is very nervy and irritable and gets unfairly angry with the children.  She feels embarrassed, disappointed and ashamed that she cannot do her duties as a wife and mother.  That situation has affected her relationship with her children and husband and she has no intimate life with her husband.

65      The plaintiff can only do some light cooking and housework, such as dusting, with her husband doing the majority of the tasks, with the children doing the harder work.

66      The plaintiff does not go out much.

67      The plaintiff deposed that she continues to have a lot of pain, worse in the right side of her neck, her right shoulder and shoulder blade, with associated headaches.  She has headaches constantly, but of variable intensity.

68      In cross-examination, the plaintiff described her current pain as being in the shoulder, the whole back, a little bit in the legs and a headache. Her neck is also stiff.[26]

[26]T68

69      The plaintiff sleeps poorly and spends her day miserably. She does not take sleeping tablets but get some assistance sleeping from her other medication. She does not like to take the amount of medication she is already taking as it feels like it numbs her brain.[27]  The plaintiff thinks her anxiety and depression is getting worse.

[27]T69

70      The plaintiff is now in receipt of a disability pension and she believes WorkCover has not assisted her to recover and that this has destroyed her life.

71      In cross-examination the plaintiff agreed that all her problems would interfere with her ability to work not being able to do a job with prolonged standing or walking.[28]

[28]T59

72      The plaintiff could not work as a pedestrian crossing supervisor because she could not stand and hold the sign. She would be unable to work with children because of her pain.[29] She does not feel capable of any work.

[29]T60

73      The plaintiff received a payout under her total and permanent disablement policy of about $40,000.[30]

[30]T61

Treaters

74      Dr Sison, general practitioner from Western Family Medical Centre in Deer Park, reported on 30 January 2009. 

75      Dr Sison noted that the plaintiff presented on the said date complaining of right shoulder pain radiating to the shoulder blade and thoracic spine following lifting boxes. On examination, there was restricted movement and tenderness of posterior shoulder on deep palpation.

76      Dr Sison referred the plaintiff for an x‑ray and ultrasound which revealed subdeltoid subacromial bursitis and acromioclavicular joint arthritis.

77      Treatment had included oral analgesics and anti inflammatories and ultrasound guided cortisone injections.  The plaintiff had also had physiotherapy. 

78      Dr Sison issued WorkCover certificates for modified duties with a five kilogram lifting restriction and no repetitive movement above shoulder movement.  He noted the plaintiff was then doing well and had tried to return to pre-injury duties for a couple of hours.

79      On 19 January 2009, the plaintiff attended Dr Sison in agony, complaining of back pain from the thoracic to the lumbar spine.  A CT scan revealed T8-9 minor canal stenosis with secondary posterior disc bulge, L3-4, L4-5 and L5-S1 central canal stenosis with posterior disc bulge. 

80      Dr Sison certified the plaintiff unfit for work from 20 to 23 January 2009 and recommended modified duties on 27 January, on reduced hours, four hours a day, five days a week, with office work such as filing and sorting paperwork.

81      At the time of that report, Dr Sison noted the plaintiff still had residual pain of the shoulder and back but was feeling better and slowly improving.  She was then having physiotherapy three times per week, home exercises and walking.

82      In examination-in-chief, Dr Sison demonstrated the site of the plaintiff’s initial right shoulder pain, radiating to the scapular/shoulder blade and towards the middle of the plaintiff’s upper back.  He confirmed that the plaintiff was very anxious and she was in tears on that examination. 

83      Dr Sison confirmed that the plaintiff had attended complaining of family and work related stress on a number of occasions in 2006 and early in January 2007.  Dr Sison did not see her stress at that time warranted a diagnosis of depression or the need for specialist referral.  He confirmed the plaintiff did not have any difficulty communicating with him on examinations.

84      Dr Sison confirmed that his note of the initial attendance on 18 September 2008 referred to a heavy box and repetitive work.  The initial complaint was of shoulder pain and that was the subject of management at the outset. 

85      Dr Sison then said that on the initial attendance, there was shoulder pain and also pain in the area of the scapular around the thoracic area as well.  He agreed there was no note of thoracic pain on the first examination because he just concentrated on the shoulder.  He agreed his report differed from his clinical note in that it included a reference to thoracic pain – pain at the tip of the shoulder- following the lifting of boxes.

86      Early investigations showed arthritis in the right shoulder which Dr Sison considered was longstanding and he agreed could not be caused overnight.  It was age related or wear and tear.  He also agreed that the ultrasound showed not very much at all in terms of pathology and demonstrated mild bursitis or inflammation in the area of the bursal sac.  Dr Sison agreed that inflammation could be a reaction to an underlying condition or a traumatic event.  

87      Whilst he recorded pain of a week’s duration on 7 October 2008, Dr Sison did not know its source.  He agreed the initial thoracic x‑ray showed findings at the lower level of T8 and T9 and that the findings were not of much significance.  He agreed a bone density test carried out was normal. 

88      Dr Sison provided continuing certificates leading up to January 2009.  He agreed the MRI scan of that month showed widespread degenerative changes.  He agreed that that was not something to be particularly concerned about but he thought the plaintiff needed a second opinion and also physiotherapy treatment as she continued to complain of pain.

89      As of February 2009, Dr Sison had increased the number of the plaintiff’s working hours from four to five a day, four days a week.  Consultations in February 2009 were basically for the shoulder and he then also addressed the lower back at that time. 

90      Dr Sison prescribed Pristiq antidepressant as the plaintiff turned up stressed and crying in March.  He agreed there was an emotional component to her presentation and that he prescribed antidepressants for both pain and her emotional levels. 

91      Dr Sison demonstrated the level C5-6 as being on the shirt collar. He agreed that there was no reference in his notes to any neck complaints by the plaintiff. 

92      There were other entries for back pain in 2011 completed by Dr Herrero.  The only complaints in the notes relating to the plaintiff’s spine were thoracic or low back.

93      Dr Sison agreed as the time went on, the plaintiff became more and more emotional.  He thought it was correct in her case that psychological factors had become inextricably entangled with the physical problem but he did maintain that the plaintiff had bursitis as was shown on investigations.

94      In re-examination, Dr Sison confirmed the plaintiff was in agony on the initial presentation.  At other stages, she had come back and complained of a similar level of pain.  He agreed that the plaintiff had not responded to conservative treatment and that she had not had any problems with her shoulder prior to the incident. 

95      Dr Sison referred the plaintiff to Dr Middleton, occupational physician, who first saw her in March 2009.

96      The plaintiff told Dr Middleton that on the said date she was involved in lifting boxes weighing around 15 kilograms from bench height to overhead height.  To balance that she needed to extend her spine, and on that day she accidentally dropped a box which landed on her right shoulder with a point impact, causing acute pain under the right shoulder. 

97      On initial examination, the plaintiff’s main pain was in the right scapular region around the lower angle extending into the lower thoracic spine.

98      When he first reported in November 2009, Dr Middleton noted the plaintiff then started work as 7.30 and worked till midday with two hours in office work and then being moved to the warehouse table doing sitting and standing jobs, not involving repetitive or above shoulder work.

99      Dr Middleton noted the plaintiff was very emotional on examination.

100     Dr Middleton’s notes in April 2009 set out neck complaints by the plaintiff.

101     Dr Middleton organised an MRI scan of the cervical spine for clarification of whether the plaintiff’s complaint of back pain in actual fact related to her neck and thoracic spine.  The results of that investigation were discussed with her in April 2009 and a repeat ultrasound of the right shoulder confirmed the ongoing presence of impingement for which Dr Middleton injected the subacromial space with corticosteroid.  Dr Middleton thought the plaintiff’s complaints of headaches were of a vascular nature and prescribed Inderal.

102     There was a return to work set for 8 May 2009, after which the plaintiff indicated she was “a little bit all right”, with reduction in headaches and an increase in cervical spine movement marginally with physiotherapy. The plaintiff stated her back pain was killing her.

103     The plaintiff advised Dr Middleton that she had been told by the defendant that in August 2009, her employment on light duties was likely to cease.  The plaintiff then expressed her distress at the possibility of being out of work, noting she had considered herself a loyal and hard worker for over the eight years she had worked for the defendant.  Dr Middleton could not see the plaintiff being safely fit to resume her pre-injury duties before that deadline.

104     As the plaintiff was clearly depressed, Dr Middleton referred her to Dr Ruddock, psychologist, for counselling for both depression and pain.

105     On 13 July 2009, the plaintiff continued to complain of right shoulder and lumbar spine pain and filing duties in the office aggravated both her shoulder and back.  She complained of worsening shoulder pain in late July 2009 and Dr Middleton made arrangements for her to be assessed by Dr Laska, rheumatologist. 

106     The plaintiff was then working four hours a day, five days a week doing office work only.  She commenced an exercise program in August 2009.  An MRI scan of the thoracic spine was organised.  Dr Middleton then introduced Effexor.

107     Dr Middleton noted that Dr Laska reported back to him, having seen the plaintiff in September 2009, concluding that the strength of the plaintiff’s muscular supports to support her upper body and upper limbs was clearly inadequate.  Dr Middleton noted Dr Laska also thought the plaintiff’s symptoms were somewhat disproportionate to the original injury, suggesting that now effectively the plaintiff had a pain management problem.  In relation thereto, Dr Middleton referred her to a pain management program.

108     In his initial report, Dr Middleton diagnosed right rotator cuff dysfunction with subacromial bursal impingement.  There was acute on chronic strain of the cervical, thoracic and lumbar spines.  In the cervical spine it resulted in disc bulging at C5-6 and C7, to the right, likely compressing the exiting right C6 and C7 nerve roots. He also noted the cervical spine injury had resulted in the onset of vascular headaches. 

109     Dr Middleton thought in the thoracic spine the injury aggravated degenerative disc disease and spondylitic changes in the mid thoracic spine.  Because of the chronicity of the pain and stress associated with the WorkCover process, including termination of her employment, he thought the plaintiff suffered with complex regional pain syndrome Type 1 exhibiting pain amplification in association with anxiety and depression. 

110     Dr Middleton then thought the plaintiff required the following work restrictions - no work at or above chest height; no forceful or repetitive use of the right shoulder; avoidance of reaching and a lifting limit of 2.5 kilograms.  He felt at that stage the plaintiff must restrict her work hours to 4 hours, 4 days a week at the level she was undertaking prior to termination of her employment. 

111     Dr Middleton thought the plaintiff’s prognosis was poor.  Without a recovery of her physical activity, he thought she would remain basically unemployable.  He noted that up until her injury, the plaintiff was a person who regarded herself as being basically indestructible with a strong ethos.

112     When Dr Middleton reported in September 2009, the plaintiff’s main pain remained in the right scapular region extending to the neck, resulting in headaches and pain extending into the thoracic and lumbar spine. 

113     Dr Middleton then noted the plaintiff was significantly depressed.  In regard to the chronic pain syndrome, Zoloft was replaced by Effexor which had proven to be of greater use, where increased pain perception was in part a problem.

114     Dr Middleton noted the plaintiff was then having pain extending from the thoracic into the lumbar spinal region, which interfered with her walking regime. 

115     Dr Middleton reported that the plaintiff was extremely upset and was referred to Dr Kumar for management of her depression.  Funding was refused for treatment so the Effexor dosage was increased.  That medication was later increased further in March 2010 when the plaintiff’s involvement in the pain management was ceased because she could not deal with the physical section of her functional restoration program. 

116     Because of the objective signs in her right arm, in particular loss of grip strength, Dr Middleton referred the plaintiff to Mr D’Urso, neurosurgeon and Mr Simon Holland, orthopaedic surgeon. Mr Holland informed the plaintiff that surgery to the right shoulder was not indicated.

117     Mr D’Urso thought that the plaintiff’s right sided pains may well be a combination of cervical nerve root compression, right carpal tunnel syndrome and right shoulder tendonitis and he recommended initially a carpal tunnel release proceed as a minor procedure, noting the cervical condition was more significant and if all other measures failed, the two level cervical discectomy and fusion could be considered.

118     On 14 September 2010, the plaintiff was complaining of terrible left shoulder pains, having to protect her right shoulder.  An ultrasound showed a small partial thickness tear of the articular side of the left anterior supraspinatus tendon.

119     Dr Middleton provided a further report in May 2012.

120     Dr Middleton noted that on 7 October 2010, it was decided to proceed with hydrodilatation of left shoulder. 

121     Dr Middleton reviewed the plaintiff on 23 June 2011 after the neck operation. He noted that she was very anxious and referred her to a psychologist.  The plaintiff also saw Dr Kumar, psychiatrist, on 18 August 2011. 

122     Dr Middleton thought on suggestion from Mr D’Urso the plaintiff should be assessed by a rheumatologist, so he referred her to Dr Stockman.

123     In his letter of referral of 7 December 2011, Dr Kumar indicated that he thought the plaintiff needed urgent pain management, preferably on an inpatient basis.  He increased the dose of Pristiq to 200 milligrams daily.

124     Dr Stockman reported to Dr Middleton in early 2012 there was some difficulty determining the cause of the plaintiff’s pain, listing pain amplification and degenerative changes and a psychological assessment pointing to focusing on her spinal pain.

125     The plaintiff continued to complain of her right shoulder collapsing when she started hydrotherapy and on that basis Dr Middleton referred her to Mr Soo, who specialised in shoulder surgery. 

126     Mr Soo diagnosed right adhesive capsulitis and right medial scapular bursitis, for which he recommended hydrodilatation and a steroid injection. 

127     As of his May 2012 report, Dr Middleton thought the plaintiff’s Chronic Adjustment Disorder was now exhibiting major depression and anxiety requiring the involvement of Dr Kumar.  Dr Middleton noted the plaintiff suffered with a chronic pain syndrome and had no capacity for work of any type and that was ongoing.  He thought the plaintiff had suffered a significant aggravation of her asymptomatic age related degenerative cervical spine disease when struck by a box of goods at work. Further, her bilateral rotator cuff syndrome had left her with a residual right restrictive capsulitis and right scapular nerve irritation as a result of the same incident. 

128     In his most recent report of 12 February 2013, Dr Middleton detailed recent regular attendances. The advice at that stage as the patches were coming unstuck, was the commencement of a trial of MS Contin 10 milligrams twice daily with Panadeine Forte for break through pain. 

129     In addition to the conditions diagnosed in his 2012 report, Dr Middleton commented that finally due to the failure of recovery and ongoing relentless pain, the plaintiff had developed a chronic pain syndrome.  He thought she was totally incapacitated for any form of employment and was certainly not fit for pre-injury work, be it full or part time or with modified duties. 

130     Dr Middleton considered the plaintiff’s prognosis was poor.  He noted the main aim of her management was to achieve the improvement in function and reduction in pain levels to enable her to have some form of quality of life.  He thought the plaintiff was severely disabled, noting her husband was required to leave the workforce to become her carer. 

131     Dr Middleton repeated his comments about the plaintiff’s self perception pre incident as a strong woman and noted that the insurance agent was now impeding any form of recovery by withdrawing funding for what was considered by Mr Soo to be required in relation to her shoulders including surgery.

132     Mr D’Urso, neurosurgeon, first saw the plaintiff on 17 May 2010.  He reported in both 2010 and 2012 and was required for cross-examination. 

133     The plaintiff told him that one of the boxes fell and struck her on the right shoulder and neck and she twisted awkwardly as it occurred, and developed pain around her right shoulder.

134     On initial examination, there was some global weakness in the right upper limb and sensation was altered throughout the right arm globally.  The range of cervical movement was only thirty per cent of normal. 

135     Mr D’Urso initially diagnosed cervical spondylosis and foraminal nerve root entrapment and a right shoulder condition which included subacromial bursitis and AC joint degeneration.  He thought there was multilevel degenerative change in the thoracolumbar spine.  He then considered the plaintiff had a significant disability affecting her neck and right arm and she was not able to work.  He recommended updated imaging to decide on treatment options.  He thought the workplace incident had aggravated significant cervical spondylosis and nerve root entrapment.

136     Following receipt of the cervical spine MRI of 8 July 2010, Mr D’Urso suggested further review and saw the plaintiff on 2 September 2010.  He operated on the plaintiff on 8 June 2011, performing a two level anterior cervical discectomy and instrumental interbody fusion at C5-6 and C6-7.

137     Post operatively the plaintiff had a little benefit from surgery and still rated her neck pain as seven out of ten and arm pain at six out of ten. Mr D’Urso noted an MRI scan of 14 December 2011 showed a post operative appearance that was satisfactory with no evidence of complication.

138     On review on 20 January 2012, the plaintiff stated her condition had deteriorated and she continued to rate her pain as six and a half out of ten.  A CT scan of the thoracic spine of November 2011 demonstrated some age related degenerative changes but nothing particularly significant.

139     Mr D’Urso concluded the plaintiff presented with median neuropathy of the right wrist and two-level cervical spondylosis.  He noted she underwent technically successful surgery for both conditions.  When last reviewed, he thought she had no capacity for employment.

140     Mr D’Urso reported he would be guarded in regard to the plaintiff’s prognosis.  Despite technically successful surgical intervention and satisfactory post operative imaging, the plaintiff had a persistent disability which was substantially greater than he would expect.  He noted she did not appear to have benefited from medical and surgical therapy and he hoped her condition would improve with time.  He thought the plaintiff appeared to be quite disabled and had no capacity for employment and appeared to have restrictions in her capacity for other areas of life. 

141     Mr D’Urso concluded the plaintiff had evidence of median neuropathy of the right wrist and two level cervical spondylosis with nerve root compromise, both of which had been treated adequately surgically.  However, her symptoms had persisted, the clear reason for which he noted was not evident.  He thought the plaintiff suffered from chronic myalgia and myofascial pain syndrome.  Noting her guarded prognosis, he suspected the plaintiff would have a permanent incapacity of at least a partial nature into the foreseeable future.

142     In examination in chief, Mr D’Urso confirmed he felt the neck operation had been technically successful and that the plaintiff’s continuing disability was substantially greater than he would expect.  When he reviewed her post surgery, she still had a lot of pain and the surgery did not appear to have been of a lot of benefit to her description of her post operative symptoms.  He had hoped for a better outcome and could not explain on a physical basis alone her ongoing symptoms in her neck. 

143     In cross-examination, it was put to Mr D’Urso that there had not been complaints of neck pain until six months after the incident.  In his view, it would appear that the onset of neck pain at that time was probably not related to the incident itself, but he then explained that sometimes people complain of referred pain to the shoulder and upper limb and they have got a substantial nerve root compression in the cervical spine with very little neck pain, and most of their pain is localised to the shoulder region. 

144     In those circumstances one would not exclude the possibility there had been an injury to the neck, but on balance he would normally expect there to be a degree of neck pain at the onset of injury. 

145     Mr D’Urso confirmed the non organic findings on the first examination and that the plaintiff had had a number of investigations by the time she first saw him.  He confirmed his initial diagnosis was based on the assumption there had been complaints of neck pain quite early, with striking of the neck and shoulder in the incident. 

146     Mr D’Urso thought there potentially was an organic basis to the dysfunction of the right upper limb but the severity of symptoms was somewhat greater than he would have expected and it was certainly possible there was a functional overlay affecting the plaintiff on the initial examination. 

147     Mr D’Urso confirmed the diagnosis of myalgia and myofascial pain.  He agreed it was possible a person could have an insult that was quite minor to the shoulder and complain of pain extending up to the neck.  Degenerative changes in the cervical spine would not properly explain the complaints of neck pain emanating from the shoulder.

148     The plaintiff’s complaints post surgery were very similar, if not worse than before.  Mr D’Urso considered that possibly her ongoing pain is muscular in nature but it appears something has precipitated the onset of a lot of symptoms and inter related conditions.  He thought it was not uncommon for the neck and shoulder conditions to aggravate each other.  It was possible in a vulnerable patient that fairly minor pathology could give rise to widespread complaints of pain in various parts of the body.  However, in terms of the plaintiff’s described injury, he thought it would be unusual to have such widespread symptoms. 

149     In Mr D’Urso’s view, an initial injury might then develop into an emotional or psychological response which he agreed was difficult, almost impossible to disentangle from the physical injury and that it was quite likely the position in the plaintiff’s case.

150     In re-examination, Mr D’Urso stated he believed there was a shoulder condition which he was not treating and a cervical condition had been successfully treated.  He thought the item falling on the plaintiff’s shoulder was a significant injury and that sometimes people do indeed have nerve root compression in their neck which is symptomatic and they do not necessarily describe neck pain but will describe pain referred to the shoulder blade and shoulder region which emanates from the nerves affecting the neck.  Thus it would appear the precipitating factor had been an injury as described from the evidence that he had been presented with.

151     The plaintiff underwent a pain management assessment by Dr Middleton, Dr Ford and Mr Ruddock in January 2010. 

152     The plaintiff’s condition was then diagnosed as marked severity cervical thoracic lumbar and right shoulder pain with specific diagnosis difficult to determine due to the extreme levels of inconsistency and psychosocial distress impacting upon presentation. 

153     It was noted there was no radiological cause for the plaintiff’s severe symptoms including vascular headaches.  There was almost certainly a degree of maladaptive central processing common in chronic pain conditions.  There was a marked level of inconsistency which was likely to have a major impact on response to treatment and return to normal activity to date. 

154     It was noted, however, on that background the plaintiff had endeavoured for a year after the injury to continue with work and regarded herself as having a good work ethic.  It was noted she was highly distressed about her inability to engage in day to day activities. 

155     Further it was thought psychological symptoms appeared to be critical in the plaintiff’s current overall presentation.  Under DSM-IV, the plaintiff was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood.  It was reported it should be noted that psychological symptoms appeared to have persisted because of ongoing stresses associated with the injury.

156     Dr Kumar, psychiatrist, reported in March 2012 that he had been looking after the plaintiff quite regularly since July 2011. The plaintiff gave him a history of injury with heavy repetitive work. 

157     Dr Kumar diagnosed a Major Depressive Disorder in the context of complicating Pain Disorder.  As a differential diagnosis, he thought it quite possible the plaintiff’s symptoms could be explained on the basis of a Chronic Adjustment Disorder with depressive and anxiety symptoms. 

158     Dr Kumar found the diagnostic criteria had been satisfied in terms of Major Depression, in that the plaintiff had a depressed mood most of the day, there was a markedly diminished interest or pleasure in all or almost all activities most of the day – nearly every day, significant weight loss when not dieting, insomnia or hypersomnia nearly every day, psychomotor agitation or retardation nearly every day, fatigue or loss of energy nearly every day, feelings of worthlessness or excessive inappropriate guilt, diminished ability to think or concentrate or indecisiveness nearly every day and recurrent thoughts of death.

159     In mid 2012, Dr Kumar thought the plaintiff’s capacity to return to future employment was quite limited and he considered that she did not have any capacity to be employed at any level or in the immediate future.

160     Dr Kumar clearly stated that the plaintiff was experiencing her current predicament in the context of workplace injury and the subsequent complicating Pain Disorder.  He thought she was quite disabled and unable to carry out domestic activities.  He considered her prognosis was quite poor and that she was likely to experience depressive symptoms as her pain condition had not improved.  The best that could be done was to provide psychotherapy essentially in the form of problem solving and supportive psychotherapy in order for the plaintiff to live with her present disability. 

161     Dr Kumar noted the plaintiff was unlikely to get better until a positive outcome had been achieved with the WorkCover conflict and also the pain syndrome, commenting that the plaintiff had been seeing Dr Middleton quite regularly in order to achieve stability in relation thereto.

162     Dr Kumar most recently reported in November 2012, noting he had seen the plaintiff three times since his last report, the last time being two months earlier.  The plaintiff continued to remain depressed and anxious and her pain had not improved.  Her level of disability had deteriorated due to unbearable pain and depressive features. 

163     Dr Kumar thought the plaintiff’s prognosis was poor, however one looked at it.  Her depression was not likely to improve unless there was a dramatic improvement in her pain.  He thought she was incapacitated and would not be able to resume work or be in any paid employment.  He noted he had considered electroconvulsive therapy but that was a relative contraindication due to the plaintiff’s severe Pain Disorder. 

164     Dr Kumar concluded the plaintiff had multiple conditions; at least, depression and Pain Disorder was relevant to him as she had been on medications for both conditions.  He noted quite earlier in her management he had requested psychogenomics to avoid the trial of many antidepressants and to suggest a pain clinician’s findings of testing for pain management.  He thought that was a reasonable request and was disappointed the insurer had refused to pay for it.  That testing, in his view, would lead to a more informed choice in determining the right dose of the drug, or which drug could be taken.

165     Mr Brendan Soo, orthopaedic surgeon, saw the plaintiff on referral from Dr Middleton in May 2012.  She described to him unloading a fifty kilogram box on her shoulder and neck in the incident. 

166     The plaintiff told Mr Soo her neck pain had improved.  However, her shoulder pain had been ongoing.  He thought her right shoulder presentation was consistent with an adhesive capsulitis. 

167     On examination, all shoulder movements were restricted and there was tenderness over the medial scapular border area.  He noted previous x‑rays of the shoulder in 2008 and 2009 showed a normal joint margin and AC joint and that an ultrasound in 2011 demonstrated no tear of rotator cuff tendons. 

168     Mr Soo thought the plaintiff’s clinical features were consistent with an ongoing adhesive capsulitis that had previously been responsive to hydrodilatation and steroid injection.  He noted she had also developed a medial scapular border bursitis on top of that condition.  

169     Mr Soo arranged for a hydrodilatation and steroid injection into the plaintiff’s right shoulder on 24 May 2012 and ultrasound guided steroid injection into the medial aspect of the right scapular on 1 June 2012.

170     Upon subsequent review on 28 August 2012, the plaintiff described a good response to the injections and had an improved range of rotation and less medial scapular border pain.  However, she was still significantly limited with any overhead activity and now described pain around the inferior border of the scapular.  He also thought she had an element of quite significant scapular dyskinesia secondary to the chronic nature of her shoulder pain. 

171     Mr Soo recommended the plaintiff be referred to a chronic pain specialist to help with the pain control. 

172     On last examination at the end of August 2012, Mr Soo felt the plaintiff had a very limited capacity for any meaningful work, given the ongoing significant pain and restriction of movement in her right shoulder.  He thought she also appeared to have a very limited capacity for activities of daily living.

173     Mr Soo considered the plaintiff’s prognosis was quite guarded as although adhesive capsulitis was a self limiting condition that usually responded well over the course of time, her condition had not settled over four years.  He thought any further treatment would involve a multidisciplinary approach with a chronic pain specialist and he also considered the plaintiff may benefit from the repeat hydrodilatation and steroid injections or an arthroscopic capsular release and manipulation under anaesthetic of her right shoulder.  However he could not be certain of the efficacy of those treatments, given her response to previous treatments.

Medico-legal examinations

174     Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff on behalf of Allianz on 31 March 2009.

175     The plaintiff at that stage was still doing light duties. She told Mr Kudelka that she injured her back and right shoulder while lifting boxes.

176     On examination, there was tenderness on the right side of the neck and in the lower lumbar spine.  Movements of the cervical spine and right shoulder were limited.

177     Mr Kudelka thought the plaintiff’s current medical condition was headaches and neck pain, right shoulder and back pain, aggravated by the lifting incident with no non work related factors and no sign of functional overlay.  In his view, the plaintiff then had a current reduced work capacity but was not yet fit for her pre-injury employment.  He then suggested she be referred to an orthopaedic surgeon with specific reference to her right shoulder symptoms. 

178     Mr Kudelka thought the plaintiff’s back symptoms were not then related to the incident, which was predominantly in effect on her right shoulder.  He thought any aggravation to the cervical and lumbar spine was transient in nature and had now resolved. 

179     Mr Kudelka re-examined the plaintiff on 20 January 2010 when he was told by her that she was put off work the month before.

180     Mr Kudelka reported that on examination it was impossible to examine the plaintiff adequately as she was not able to move her neck, shoulders, back or arms and she shook violently when any movements were attempted.  His overall impression was that the plaintiff was suffering from a moderately extreme anxiety state.  He thought she had symptoms greater than those complained of or demonstrated previously. 

181     Having thought the plaintiff’s symptoms were caused by aggravation of degenerative changes by reason of her duties, Mr Kudelka considered the continuation and severity of her symptoms, however, was predominantly due to anxiety, a state that she appeared to have developed. 

182     Mr Kudelka saw no prospect of the plaintiff returning to work in her pre-injury duties and hours in the foreseeable future.  From an orthopaedic point of view, he thought her capacity for work could be reviewed in two months.

183     Associate Professor Bittar, neurosurgeon and spinal surgeon, examined the plaintiff in March 2012 when she presented with neck and right brachialgia and interscapular and lower back pain.  She told him of the incident involving a falling box. 

184     On examination, Professor Bittar noted the plaintiff’s current complaints were right sided neck pain, interscapular pain and lower back pain, with the neck and interscapular pain more problematic than the lower back.

185     On examination, the plaintiff walked with a slow non antalgic gait and had a fairly flat affect.  There was right sided cervical paravertebral tenderness.  There was bilateral interscapular paravertebral tenderness and bilateral lumbar paravertebral tenderness.  There was mild restriction of cervical and lumbar spine movement.  The plaintiff had generalised weakness in all limbs, which appeared to be pain related and Professor Bittar could not detect any focal neurological deficits. 

186     Professor Bittar saw the 2009 and 2011 investigations and diagnosed aggravation of cervical spondylosis and lumbar spondylosis.  He thought the plaintiff’s work had been the dominant contributing factor.  He recommended she be reviewed by a pain specialist in relation to both her cervical and lumbar spine and that she might benefit from facet joints in both regions as well as cervical nerve blocks.

187     Professor Bittar thought the plaintiff’s prognosis was relatively poor and considered she was likely to suffer from significant pain and disability into the future. 

188     Professor Bittar thought the long term effects of the physical injuries to the plaintiff’s neck alone were very significant with less socialisation and recreational activities and a limitation in domestic activities.  He thought her lumbar spine condition was consistent with the stated cause.  He considered the prognosis for that was relatively poor.

189     Professor Bittar confirmed that the radiological findings in November 2011 did not alter his previous opinion.

190     Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in March 2012.  She told him of the falling box. The plaintiff complained to him of constant pain in her neck, right shoulder and mid region of her back.

191     On examination, there was moderate limitation of neck movements and movements of the right shoulder were markedly limited and there was limitation of left shoulder movements.  The plaintiff indicated the site of her back pain was mid and particularly upper thoracic around T4-5 and there was severe restriction of all movements by pain.

192     Mr Brearley had available the investigations up until September 2010.  He diagnosed chronic subacromial bursitis and aggravation of degenerative changes of the acromioclavicular joint and recommended subacromial steroid injection.  He thought the prognosis was poor and that the long term effect of the physical injury to the shoulder alone meant the plaintiff was unable to work either full or part time, noting she was experienced only in physical type work, having no office or other significant skills.

193     Mr Brearley diagnosed cervical spondylosis with foraminal stenosis at C5-C6 levels, causing compression of the C6 and C7 nerve roots.  He thought the plaintiff was totally incapacitated for work on the basis of the neck alone and also the back, in which he diagnosed aggravation of pre-existing degenerative changes throughout the lumbar spine.  He made similar comments in terms of the thoracic spine.

194     Mr Brearley reported again in June 2012, having been provided with the November 2011 CT scan of the thoracic spine and the lumbar spine.  He thought the findings in relation to the thoracic spine indicated a strong organic basis for the plaintiff’s ongoing back pain and in relation to the lumbar spine the findings would also account for a significant contribution to her low back pain.  He also noted the plaintiff did not have any clinical objective evidence of radiculopathy and no definite impingement was seen on the CT scan.

195     The plaintiff was examined by psychiatrist, Dr Jackson, in March 2010 on behalf of the defendant.

196     The plaintiff told Dr Jackson she hurt herself in a lifting and twisting incident.  She advised him she had no past medical history, including no past psychiatric history. 

197     The plaintiff reported for the last year at least she had had a steady increase in her pain and disability.  She always had neck pain spreading to both shoulders and more severe on the right and had constant spread to her upper back and right shoulder.  When asked about her mood, she said she was angry, frustrated and depressed.

198     On examination, the plaintiff constantly shifted position, often standing up and at times leaning with the flat of her back against the wall.  She had a depressed tone to her voice and in the main presented with major depression with runs of sobbing tears, wiping her eyes with her dress.

199     Dr Jackson noted the plaintiff presented with steadily worsening chronic pain in which her associated disabilities included major depressive symptoms.  He thought her thinking was clearly dominated by the (reasonable and understandable) obsessional thoughts she was humiliated and discarded by her dismissal despite her faithful service to the defendant and her endeavouring to continue to work despite chronic pain. 

200     From a psychiatric point of view, Dr Jackson thought possible diagnoses included a Pain Disorder, an Adjustment Disorder or Major Depression.  His diagnosis was of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He noted that the multidisciplinary team approach had been unsuccessful and, if anything, had worsened the plaintiff’s Chronic Pain and depressive pessimism. 

201     Whilst not commenting on her employment capacity, Dr Jackson thought the plaintiff had a significant depressive illness that remained materially related to work.  He thought a change in her treatment approach was indicated including review of the plaintiff’s anti depressant and analgesic medication. He considered at least assessment and treatment advice by a psychiatrist rather than a psychologist was appropriate.

202     Dr Nathar, consultant psychiatrist, examined the plaintiff on 22 March 2012.  She told him of a box landing on her shoulder in the incident. 

203     On examination, the plaintiff was very distressed and tearful.  She continually ruminated about why she had to live all her life with pain and wished that she was not alive. 

204     Dr Nathar noted the plaintiff presented as a severely depressed and tearful woman with agitated behaviour, frequently changing her posture, getting up and moving around and she seemed to be in pain and physical discomfort.  The plaintiff was pre occupied with poor confidence and self esteem, negative about her family role, with passive suicidal thoughts but no delusions.  Concentration waxed and waned.  Intelligence and insight was normal and her judgment was moderately impaired.

205     Dr Nathar thought the plaintiff was suffering from Major Depressive illness of moderate to severe degree associated with a moderate to severe degree of Chronic Pain Disorder involving psychological factors and general medical conditions.  He noted this was in a setting of a woman who was previously in good health who enjoyed her job and had found enormous difficulty in adjusting and coping with the fact she can no longer work. 

206     Dr Nathar thought the plaintiff would need to continue psychiatric treatment and take a high dosage of antidepressant medication for some years yet.  In fact he noted unless there was significant improvement, she would probably need antidepressant medication for life.

207     Dr Nathar considered the overall prognosis was extremely guarded as the plaintiff seemed to be severely mentally ill notwithstanding expert psychiatric treatment and medications and she had not really responded and continued to have adjustment difficulty.  He thought that she would have a significant level of long term permanent psychological deficits at around the current level of severe disability.  As a result of her psychiatric injuries, Dr Nathar believed the plaintiff was totally and permanently incapacitated for all work and was not a good candidate for retraining.

Investigations

208     On 19 September 2008, the plaintiff had a right shoulder x‑ray organised by Dr Sison.  It was reported there was right acromioclavicular joint arthritis. Following a right ultrasound of the same date, it was reported there was mild subdeltoid subacromial bursitis. 

209     An ultrasound guided right shoulder injection was carried out at Dr Sison’s request on 23 September 2008. 

210     An x‑ray of the thoracic spine was carried out at Dr Sison’s request in October 2008.  It was reported that spondylosis was demonstrated at the mid and lower thoracic spine.  This was more hypertrophic and prominent at T8-9 and T9-10 regions.  The T9 vertebral body appeared mildly wedged on the lateral view and loss of height exceeded twenty per cent.

211     Bone densitometry carried out in October 2008, was reported to be normal.

212     There was a CT scan of the thoracic spine organised by Dr Sison in January 2009.  It was reported there was minor central canal stenosis at T8-9. 

213     Following a CT scan of the lumbosacral spine of the same date, it was reported there was mild to moderate central canal stenosis at L4-5 and a mild central canal stenosis at L3-4 and L4-5.  There was left L3-4 and bilateral L4-5 foraminal stenosis.

214     There was an ultrasound of the right shoulder carried out at Dr Middleton’s request in April 2009.  It was reported there was an intact rotator cuff mechanism and mild thickening of the subacromial subdeltoid bursa which demonstrated bursal impingement upon shoulder abduction. 

215     There was an MRI scan of the cervical spine organised by Dr Middleton in April 2009.  It was reported there was disc space narrowing and generalised posterior disc bulging seen at C5-6 and C6-7.  It was noted those disc bulges were slightly more prominent towards the right side and although there was no cervical cord compression, there was moderate right sided foraminal narrowing at each level, with evidence of contact and likely compression of the exiting right C6 and C7 nerve roots. 

216     There was an MRI scan of the thoracic spine organised by Dr Middleton in August 2009.  It was reported there were mild right paracentral disc-osteophyte complexes at T3-4, T6-7 and T8-8 which were noted to cause mild cord flattening but without cord oedema at those levels.  There was no foraminal stenosis or nerve impingement and there was mild disc desiccation and end plate spurring.

217     There was an MRI scan of the cervical spine organised by Mr D’Urso in July 2010.  It was reported there was multi level disc degeneration without focal disc protrusion, cord compression or intrinsic cord abnormality.  There was moderate bilateral body foraminal stenosis, worse on the right than left, at C5‑6 and on the right at C6-7.

218     There was an ultrasound of the left shoulder organised by Dr Middleton in September 2010.  It was reported there was no recent bony abnormality, and normal alignment of the left shoulder. There were mild degenerative changes of the left ACJ and a small partial thickness tear of the articular side of the left anterior supraspinatus tendon. There was no evidence of left side subacromial bursitis and there was a limited range of the left shoulder seen with underlying adhesive capsulitis queried.

219     There was a CT scan of the thoracic spine organised by Dr Sison on 28 November 2011.  It was reported there was mild multi level thoracic spondylosis but for disc disease. It was noted that MRI scan rather than CT scan was the imagining of choice within that region.  There was more than twenty per cent T8 and T9 vertebral compression factures.

220     There was a CT scan of the lumbar spine organised on the same date by Dr Sison.  It was reported there was mild left L3-4 foraminal disc prolapse without definite nerve root compression.  There was broad based posterior annular L4-5 disc prolapse with moderately severe bilateral facet joint degenerative arthritis which was noted could impinge on both L4 nerves.  It was suggested either CT scan guided L4-5 facet joint or foraminal nerve block could be attempted for that affected side.

221     There was CT scan of the right shoulder and scapular organised by Mr Soo in September 2012.  It was reported no mass or cause for symptoms was demonstrated.  If it was thought that bursitis and an unseen soft tissue lesion such as an elastofibroma could be the cause, further imaging with MRI scan may be useful.

222     Mr Soo organised a right shoulder hydrodilatation in May 2012 and a right shoulder injection under ultrasound in June 2012.

Vocational

223     Flexi Personnel provided a report in January 2012. 

224     The author, Louise Meilak, human resources consultant, concluded that the plaintiff had pain and physical and psychological restrictions that prohibited her from returning to her pre-injury duties or in fact any other duties.  Even the lightest of work required punctuality, regular attendance and a consistent capacity to do the work, which the plaintiff could not guarantee she could provide on a regular basis. 

225     In her opinion as a recruitment consultant, Ms Meilak believed the plaintiff had no current work capacity for any suitable employment.   

226     Konekt provided an OES four month progress report in June 2009.  It was noted that the plaintiff spoke with Konekt on 25 May.  Konekt explained that alternative duties which she was undertaking would not be available beyond 31 August 2009 and unless she was able to undertake her pre-injury role in the full capacity, she would be required to look for work elsewhere.  It was noted the plaintiff did not understand the concept and was upset that after all the years, that employer was trying to get rid of her.

227     It was noted the plaintiff spoke of the duties which were suggested as suitable, in particular cashier, and asked why the defendant would not be able to provide her with that alternate work.  Konekt told her if there was such a role, it may be possible.

The Defendant’s medical evidence

228     Certificates for modified duties were provided by Dr Sison and Dr Middleton from the date of injury.  On 5 January 2010, Dr Middleton certified the plaintiff as totally unfit for work on the basis of a back injury.  The initial certificates related to right shoulder pain following heavy lifting.

229     On 27 February 2009, as of 17 December 2008, Dr Sison certified the plaintiff fit for modified duties with restriction to work from 10.00am to 2.00pm with no lifting over five kilograms, by Dr Sison.

230     On 24 March 2009, Dr Middleton certified the plaintiff fit for modified duties with restrictions - no work above mid chest height, lifting restriction of 2.5 kilograms, no forceful or repetitive use of the shoulder and avoid reaching, working four hours four days a week, Monday, Tuesday, Thursday and Friday. 

231     The plaintiff was referred by Dr Middleton to Dr Laska rheumatologist in September 2009.

232     Dr Laska wrote to Dr Middleton on 3 September 2009.  The plaintiff told him of a twisting/ giving way incident. 

233     On examination, Dr Laska found there was diffuse tenderness in the paraxial tissues and strength of muscular supports was clearly inadequate.  Dr Laska advised that the plaintiff presented with ongoing somewhat disproportional and more widespread discomfort than the original strain would normally be expected to have created.  He thought the time course over which it had remained a problem was also somewhat problematic.  There had been no anatomical disruption and there was ongoing resistance to all management measures.  He thought clinically the rotator cuff mechanism appeared to have been irritated and there certainly had been muscle strain. 

234     Dr Laska thought the total picture was now effectively a pain management problem and it would appear that perhaps a reactive depression was setting in as well.  He pointed all that out to the plaintiff.  He thought it necessary to increase the strength of muscular supports, whilst encouraging her to get over the pain barrier, removing some of the excess weight she was carrying and generate a more positive outlook.  However, that remained to be seen how one could implement such a complex of rehabilitation.  He noted, unfortunately, he was not sure he could add much more for the circumstances and recommended the plaintiff continue under Dr Middleton’s guidance.

235     There was a WorkSafe pain management program with a planned start date of 18 January 2010 and completion 16 April 2010. 

236     During that program, the plaintiff continued to report high levels of fear avoidance beliefs, her pain focus and increased depression, anxiety and stress symptoms.  The program did not appear to be altering those beliefs or pain behaviours.  It was concluded continuing on with the program did not appear warranted given problems with participation and there was an early discharge in March 2010.

237     The plaintiff was referred to Mr Simon Holland, orthopaedic surgeon, in April 2010 for a second opinion about her lumbar spine and right shoulder by Dr Middleton.

238     In a letter of 1 June 2010, Mr Holland advised Dr Middleton that the plaintiff was very depressed on examination.  He explained to her he accepted she had shoulder pain, although he did not have a surgical solution.  He thought the WorkCover process was contributing to the plaintiff’s pain in terms of its adversarial nature.  He expected a lot of the pain would settle once the whole WorkCover process was settled and the plaintiff’s life became more predictable again. 

239     Mr Holland advised it may be worthwhile seeking a spinal surgeon opinion regarding the plaintiff’s neck and other spinal pain.  However, he expected that he would be less than optimistic that surgery will solve her pain.

Medico-legal examinations

240     Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on 4 January 2011.  She then told him of a box falling and striking her right shoulder girdle, precipitating some neck and upper back pain.

241     On examination, Mr Jones noted the plaintiff was an overweight, rather depressed looking woman.  There was limit of extension and rotation of the cervical spine.  There were some subjective symptoms of paresthesia to pin prick to the skin over the outer aspect of the right upper forearm and arm.  There was a collapsing resistance to flexion and extension of the wrist and elbow.  There was limited right shoulder and lumbar spine movement.

242     Mr Jones thought the plaintiff suffered from multilevel degenerative disc and joint disease, involving the cervical, thoracic and lumbar spine.  In the right shoulder she had clinical and radiographic evidence of mild rotator cuff degenerative disease.  He thought the right shoulder itself was normal, although soft tissue x‑rays revealed some degenerative changes within the rotator cuff tendon.  He thought the neck and back radiological features would be consistent with a woman of her age, even one who had not done labouring work.

243     Given the circumstances and nature of her injury, Mr Jones did not believe the plaintiff continued to suffer any incapacity related thereto.  He thought there would be limits on her ability with bending, lifting and pushing in relation to food and drink, factory or other process worker.  With limits, he thought she could work as a product assembler and a sales assistant, although her English was poor, and she would be able to manage the duties of packer and ticket person. He considered she would be capable of working as a crossing supervisor, ticket collector or car park attendant.  He did not think she could work as a retail cashier or in fast food and it was unlikely she could work as a sandwich hand. 

244     In a supplementary report, Mr Jones advised he believed the plaintiff would be experiencing the symptoms she currently describes in the various areas of her spine and shoulders, which would limit her physical capacity and the work of which she was capable of performing.

245     Mr Jones was provided with Dr Sison’s note of 18 September 2008 in which he described a work related injury following heavy lifting in contrast to a box falling on her as described to him. 

246     Having seen Dr Sison’s further notes, Mr Jones concluded it was possible it would appear as though the plaintiff did suffer a possible injury on the said date, either as a result of a direct blow or lifting.  He noted her subsequent complaints included neck, thoracic and lumbar spine, developing at a later date with the spontaneous development of symptoms in those areas.

247     Although the plaintiff had some degenerative disease affecting the right acromioclavicular joint, Mr Jones thought that predated the injury. He considered any symptoms arising from potential aggravation to that joint would have resolved following treatment and the length of time since the reported injury. 

248     On re-examination on 4 April 2012, the plaintiff reported symptoms of constant but variable neck pain.  She advised her shoulders could cause slight pain, indicating the right side, and a numbness of the whole of the right arm.

249     Mr Jones noted that on examination, the plaintiff was an obese, tearful and depressed looking woman.  There was a severe restriction of flexion and very limited extension and reduced rotation.  Casual observation of neck movements confirmed these to be better, but a full range of movement could not be confirmed.  There was limitation of right shoulder movement.

250     Neurologically there was a subjective diminution of sensation involving the skin over the whole of the right arm.  There was a collapsing weakness in the right arm, in particular with what appeared to be feigned weakness of flexion and extension of the elbow and diminished power of grip.  Sensory testing with respect to the median nerve revealed a subjective reduction of sensation involving the skin of the whole of the right hand.  Range of lumbosacral flexion was limited to only twenty degrees.

251     Following the two examinations, Mr Jones believed the effects of the incident had resolved.  Clinical examination of the shoulder did suggest some restriction of movement which had not changed but a recent ultrasound of August 2011 showed absolutely no soft issue pathology in the right shoulder and the mild degeneration affecting the acromioclavicular joint. Mr Jones believed this would not account for the symptoms involving particularly the plaintiff’s right arm. 

252     Having read Mr Dooley’s report, Mr Jones agreed that the reported work injury was likely to have resulted in only minor soft tissue strain to the plaintiff’s shoulder and possibly lower back, although she did not mention those symptoms to Mr Dooley.  Mr Jones did not think the incident resulted in any long term disability in particular with the right shoulder, neck and lower back.

253     Mr Jones reported in June 2012 that the plaintiff’s upper thoracic and lower lumbar back symptoms as well as right shoulder girdle and neck symptoms were unrelated to the injury.  He thought the incident would not have been responsible for a compression fracture of T9, as described by Mr Brearley.

254     Having received Mr Soo’s report, Mr Jones confirmed he did not notice any features of scapular dyskinesia on examination.    

255     Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in May 2012.  She then gave a history of the falling box.  She also told him of continuing neck, right shoulder girdle pain and low back pain.

256     On examination, the plaintiff was teary. There was tenderness over the dorsum of the cervical spine and limited movement.  There was some reduction of the right biceps jerk and there was evidence of collapsing weakness of the right upper limb.  There was altered sensation in the whole of the right upper limb.

257     There was limited right shoulder movement.  There was tenderness and restriction of movement of the lumbar spine.  Power was difficult to assess in the lower limbs because of pain.

258     Mr Dooley thought the plaintiff had aged related degeneration of the cervical and lumbar spine and rotator cuff regions of the right shoulder.  He believed that in the incident she sustained a soft tissue injury that most likely involved subcutaneous and muscular bruising.  The twist that she described could have been associated with the minor strain of the lumbar spine.  In his view, the mechanism of injury would not be associated with aggravation of cervical spine degeneration or rotator cuff disease.

259     Mr Dooley noted with that sort of injury, one would have expected steady improvement over six weeks and a substantial recovery by three months or so.  In his view, it was clear the plaintiff had developed a chronic pain syndrome and that the constancy and intensity of her ongoing pain were out of proportion to the injury sustained or to any of the underlying naturally occurring degenerative conditions.  He thought it was clear that depression had been a significant feature of the plaintiff’s chronic pain syndrome and the majority of her current presentation related to a psychological condition – the onset of which was involuntary. 

260     Mr Dooley commented that nowadays radiological investigations are used as a diagnosis and that the plaintiff had undergone surgery based almost exclusively on radiological findings and that is why surgery had not helped her. 

261     Mr Dooley believed appropriate treatment was to try and increase the plaintiff’s activity and for her to undertake regular exercises.  He noted that in the past she had been a hard working woman and now felt fairly helpless.  He thought with supportive treatment, reduction in analgesia and her avoidance of interventional medical practitioners, there was a good chance the plaintiff’s symptoms could steadily improve over time.

262     Mr Dooley thought the plaintiff would not be able to carry out heavy physical work that involved a lot of bending or lifting, or work that involved a lot of activity at or above shoulder level.  From an orthopaedic viewpoint only, he thought she would be capable of carrying out light physical work and clerical duties.  Her prognosis depended on that of her chronic pain syndrome. 

263     Having been provided with Dr Sison’s notes, Mr Dooley thought they were consistent with significant psychological issues and the initiation of a Chronic Pain Syndrome. 

264     Mr Dooley re-examined the plaintiff in February 2013. 

265     The plaintiff then walked very slowly but without a specific limp.  On examination, there was generalised tenderness of the lumbar spine and some restriction of movement.  There was restriction of right shoulder movement. Straight leg raising was restricted with complaints of significant low back pain.

266     Mr Dooley’s views had not changed since his initial assessment.  He confirmed in that sort of setting, continuing to treat the plaintiff’s pain as though it was organically based was pointless.  He remained of the view the plaintiff did not have adhesive capsulitis and her restriction of active motion of the right shoulder in the main related to her psychological condition.  He confirmed his views as to her employment capacity. 

267     Dr Farnbach, psychiatrist, examined the plaintiff in July 2009.  She was then doing light duties for four hours a day, four days a week, mostly sitting. 

268     The plaintiff told him she was injured whilst lifting boxes.

269     On examination, the plaintiff had symptoms of depression and thoughts verging on suicidal.  She was anxious and had panic attacks. The plaintiff then described her pain as sharp and constantly present in her right arm, shoulder, neck and thoracic and lumbar spine, rating it at six to eight out of ten.  On examination, she moved slowly but was not in obvious pain, shifting around a bit sometimes.

270     There was no abnormality in form or content of thinking.  The plaintiff’s affect was sad and tearful and she was preoccupied with the belief that she would never get better and her life was ruined. 

271     Dr Farnbach thought the plaintiff was suffering from a Major Depressive Disorder of moderate severity and Panic Disorder with agoraphobia.  He considered that she had no capacity do pre-injury work but her psychiatric condition, although significant, did not prevent her from working in light duties, although the symptoms would probably reduce her efficiency. 

272     Dr Senadipathy, psychiatrist, examined the plaintiff on 30 January 2012.  She gave him a history of dropping a heavy box in the incident. 

273     The plaintiff told Dr Senadipathy that her life was worthless.  She felt stiffness in her neck with a sharp constant stabbing pain with similar pain in her shoulders.  She indicated she held the defendant responsible for her physical injury as well as her emotional problems.  She felt she was unfairly dismissed from work and alleged the defendant did not appreciate her and could have found her work in a retail outlet.

274     Dr Senadipathy thought the presence of features of depression and anxiety were sufficient evidence to support the continued need for treatment.  He considered the plaintiff’s condition was secondary to the physical injuries and subsequent loss of employment. 

275     Dr Senadipathy thought the plaintiff presented with clinical features of Chronic Adjustment Disorder with features of Anxiety and Depression which had not resolved.  He considered the finalisation of litigation would be the most appropriate treatment.  In his view, after that, focus should be on the psychosomatic component of the plaintiff’s pain and helping her improve her physical and mental fitness and self manage.

276     Dr Senadipathy thought the plaintiff’s condition satisfied the criteria for diagnosis of a Chronic Adjustment Disorder with features of Depression and Anxiety.  Indicating the psychosomatic nature of the pain, he believed her engagement in compensation litigation was a significant factor undermining her motivation and the drive needed for recovery and rehabilitation.  Therefore, he strongly recommended an early resolution of legal matters so the plaintiff could be free of the WorkCover process and treating practitioners could focus on recovery and rehabilitation for self management.

Lay evidence 

277     Patricia McDonald deposed on 3 December 2012 that she was not aware that the plaintiff suffered injury at work nor had any report of injury been made to her by the plaintiff.

278     Toan Nguyen, a fellow worker of the plaintiff’s, swore an affidavit on 3 December 2012 in which she deposed she did not witness the incident and found out about it days later from other workers.

Claim documentation

279     There was an incident report form completed on 17 September 2008 in which it was noted the plaintiff suffered injury lifting boxes over 5 kilograms and strained her shoulder and the incident was reported to Mark Boyd.

280     On 1 October 2008, the plaintiff lodged a claim in relation to the incident. She described right shoulder pain following heavy lifting.  She was unloading lifting boxes from a pallet which was at a height above her shoulders.  The boxes were about 15 kilograms each.  As she was lifting, one of the boxes fell onto her right shoulder causing a sharp pain.  She reported the injury to Mark Boyd, assistant distribution manager. 

281     The employer’s injury claim report set out the plaintiff was working 35 hours a week, earning $16.29 an hour.

282     The plaintiff submitted a second claim on 11 June 2009 in which she described injury to her right shoulder, right arm, neck, thoracic spine, lumbar spine, headaches and anxiety and depression.

283     The plaintiff described suffering injury when lifting boxes from a pallet from above shoulder height.  As she was lifting a heavy box, the weight of box was too heavy and she was forced backwards and twisted her back and suffered injury.

284     On 24 September 2009, Allianz advised re Claim No 09080034588 that from 28 October 2009, the plaintiff was no longer entitled to weekly payments and medical expenses because the latter were not reasonable or necessary and her incapacity for work was no longer materially contributed to by an injury arising out of the course of her employment for her back and neck conditions.

285     On 22 June 2010, Allianz advised the plaintiff that her claim for medical and like expenses involving an MRI scan of the cervical spine and an EMG of the right upper limb was denied because they were not for an injury pursuant to which she was entitled to compensation under the Act.

The Defendant’s lay evidence

286     Natalie Moss, technical manager of Allianz, swore an affidavit on 1 March 2013 explaining why liability at one time had been accepted for the plaintiff’s neck injury.

287     The plaintiff lodged a second claim on 11 June 2009 for injuries to the right shoulder, right arm, neck, thoracic spine, lumbar spine and headaches, anxiety and depression – Claim No 09080106212.  By notice dated 17 July 2009, that claim was rejected and taken to conciliation where it was resolved on 17 November 2009. 

288     A notice was issued on 30 March 2010 on Claim No 09080034588, terminating the worker’s entitlement to both weekly payments and medical expenses.

289     A genuine dispute certificate was issued in relation to that termination notice on 5 May 2010.

290     At the time the decision was made at conciliation on 17 November 2009, Allianz did not have access to the clinical records of the worker’s treating general practitioner, nor the reports of Mr Jones and Mr Dooley.  Allianz had since specifically rejected claims for treatment associated with any alleged neck injury, for example, injection and surgery. 

Vocational and return to work plans

291     There were then a number of return to work plans following an initial assessment report of December 2008. 

292     As of 9 October 2008, the plaintiff was working 20 hours a week doing filing, invoices, despatching and sorting paperwork. 

293     In an NES vocational assessment report of 18 May 2009, in order of priority, the following suitable employment options were identified for the plaintiff; namely, cashier, sales assistant, postal services officer and quality assurance inspector. 

Overview

294     This application was initially brought in relation to three separate impairments- pursuant to clause (a) in relation to the right shoulder and cervical spine and clause (c) in relation to psychiatric impairment, encompassing both a Major Depressive Disorder and a Chronic Pain Syndrome.

295     In submissions, counsel for the plaintiff withdrew the application pursuant to clause (a) insofar as it related to the cervical spine.

296     Counsel for the plaintiff conceded he could not seriously argue the cervical spine in terms of ongoing disentangled serious consequences.[31] In terms of the shoulder, he indicated he intended to argue on the basis of ongoing disentangled consequences and that “this was very much a (c) claim” involving a Major Depressive Disorder and Chronic Pain Syndrome.

[31]T117

297     I therefore do not have to determine whether the plaintiff’s neck condition, for which she has undergone surgery, is causally linked to the incident or whether there are ongoing organically based consequences of that condition which are serious.

298     It is not in dispute that the plaintiff suffered a right shoulder injury on the said date.  The plaintiff gave differing versions of the mechanism of that injury describing the incident occurring when lifting or twisting and when a box of shoes actually fell on her shoulder. 

299     It matters little to the determination of this application the exact mechanism of the injury as I am satisfied there was a compensable injury on the said date and that the plaintiff suffered an organically based shoulder injury as a result thereof. 

300     Whilst the application was ultimately brought under clause (a) in relation to the right shoulder and also clause (c) relating to a psychiatric impairment, in my view, the overwhelming evidence is that the plaintiff’s ongoing condition at the time of hearing results from a chronic pain syndrome emanating from the original shoulder injury and is properly considered as a psychiatric impairment pursuant to clause (c). I accept that the plaintiff also suffers from a Major Depressive Disorder.  

The Law

301     Psychological or psychiatric consequences of the injury must be excluded when considering an application pursuant to (a).

302     As the Court of Appeal said in Barwon Spinners & Ors v Podolak:[32]

“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, … requires that any psychological or psychiatric overlay be stripped aside.  …”

[32](supra) at page 664, paragraph 117

303     Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.

304     It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis,[33] that:

“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis….  Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion.  …“

[33](2007) 15 VR 649, at 652-3

305     What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd,[34] where his Honour said, at paragraph 19:

“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”

[34]supra

306     Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd.[35]  In Redlich JA’s view, where there was evidence –

“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”

[35][2007] VSCA 142, at paragraphs19-20

307     Unless I can be satisfied on the balance of probabilities, that the organically based pain and suffering consequences satisfy the statutory criterion, then the application must be dismissed.

308     Thus, in a case such as this where there is a psychological or psychiatric component of the plaintiff’s symptoms, the onus is on the plaintiff to identify impairment consequent on organic injury.

The right shoulder injury

309     It is accepted by all medical practitioners who have provided an opinion in this case that the plaintiff suffered a shoulder injury which has been diagnosed as a soft tissue strain, adhesive capsulitis, right rotator cuff dysfunction with subacromial impingement and bursitis.

310     Initial investigations following the incident revealed subdeltoid subacromial bursitis and acromioclavicular joint arthritis.

311     In relation to her injury, the plaintiff has undergone a series of steroid injections into her right shoulder and hydrodilatation procedures with little ongoing relief or improvement in her condition.

312     However, there is presently limited support for the view that the plaintiff suffers any significant organically based ongoing shoulder symptomatology related to the incident injury and most practitioners consider that her condition has been totally overwhelmed by a chronic pain syndrome evidenced by non organic findings on medical examinations and also vocational interview, such as complaints of global pain and weakness.

313     Dr Sison whilst maintaining that the plaintiff had bursitis of the right shoulder, agreed in cross-examination that psychological factors had become extricably entangled with the plaintiff’s physical problems.

314     Dr Middleton, whilst diagnosing right rotator cuff dysfunction with a residual capsulitis and scapular nerve root irritation, thought that due to the failure of recovery and ongoing relentless pain, the plaintiff had developed a chronic pain syndrome.

315     Mr D’Urso who operated on the plaintiff’s neck thought there was a shoulder condition but the plaintiff presently suffered from chronic myalgic and myofascial pain syndrome.

316     Although treating orthopaedic surgeon Mr Soo thought the plaintiff’s clinical features were consistent with an ongoing adhesive capsulitis, he was not confident further treatment would be of assistance to the plaintiff given her response to previous treatments. He noted that the condition was self limiting and usually responded well over the course of time. However, it had not settled over four years and he thought the focus of treatment should be on pain management.

317     Mr Simon Holland, the other orthopaedic surgeon to whom the plaintiff was referred for her right shoulder in mid 2010, whilst he accepted the plaintiff had shoulder pain, he did not have a surgical solution and that he expected once litigation was finalised, a lot of the plaintiff’s pain would settle.  

318     Although rheumatologist Dr Laska thought that clinically the rotator cuff mechanism appeared to have been irritated and there certainly had been muscle strain, the total picture as of 2009 was effectively a pain management problem with psychological factors taking over in the form of complaints which were disproportionate or widespread and not in a normal anatomical distribution.

319     When the plaintiff was assessed for the pain management course in early 2010, her condition was diagnosed as marked right shoulder pain with specific diagnosis difficult to determine due to the levels of inconsistency and psychological distress impacting upon presentation.

320     Mr Kudelka in 2010 thought the initial aggravation of degenerative changes from the incident had ceased and the plaintiff’s symptoms were predominantly due to a moderately severe anxiety state.

321     Mr Dooley in early 2013 thought the plaintiff had age related degeneration of the rotator cuff regions of the right shoulder which should have recovered soon after the incident. She had developed a chronic pain syndrome with the overwhelming majority of her current presentation relating to her psychological condition.

322     In 2013, Mr Jones found some restriction of shoulder movement but he noted the findings shown on the August 2011 ultrasound did not account for the plaintiff’s right arm symptoms and he thought the effects of the incident had resolved

323     Mr Bittar did not comment on the plaintiff’s shoulder condition, concentrating on her spinal complaints. He made no mention of any functional component to the plaintiff’s presentation.

324     Mr Brearley diagnosed chronic subacromial bursitis and aggravation of degenerative changes in the right shoulder and three levels of the spine. He also made no mention of non organic factors.

325     The chronic pain syndrome diagnosis is echoed in the psychiatric reports.

326     In July 2009, Dr Farnbach diagnosed Major Depressive Disorder of moderate severity and Panic Disorder with agoraphobia.

327     In 2010, Dr Jackson thought the possible diagnoses included Pain Disorder, an Adjustment Disorder or Major Depression. 

328     Dr Kumar diagnosed a Major Depressive Disorder in the context of complicating Pain Disorder, with symptoms possibly explained on the basis of a Chronic Adjustment Disorder with Depressive and Anxiety symptoms.

329     Dr Nathar diagnosed a Major Depressive Disorder of moderate to severe degree associated with a similar level of Chronic Pain Disorder involving psychological features and a general medical condition,

330     Dr Senadipathy in January 2012 diagnosed Chronic Adjustment Disorder with features of Depression and Anxiety.

331     In addition to the medical evidence, I must also take into account the plaintiff’s evidence and her presentation in the witness box.

332     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[36]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[36](2010) 31 VR 1 at paragraph 12

333     I found the plaintiff to be a very distressed woman who was totally preoccupied with her pain and the effect the incident had on her life. I agree with Dr Nathar’s description of her having a perplexed look about her

334     The plaintiff’s viva voce evidence and complaints to doctors referred to multiple areas of pain in addition to her right shoulder. She repeatedly described serious problems with her neck, low back and thoracic spine, headaches and even her legs.

335     The plaintiff herself did not seem to be able to identify which painful area caused her problems in daily activities and affected her ability to work. In cross-examination, she agreed that all her problems stopped her working, walking and standing. Her husband assisted her with many tasks she was unable to do because of a combination of her problems.

336     Taking into account all the evidence, I am not satisfied there is an identifiable organic shoulder injury, the consequences of which are serious.

337     I do accept however that there is a causal link between the initial compensable shoulder injury and a chronic pain syndrome.

338     The issue for determination is therefore whether the consequences of that syndrome and the plaintiff’s depressive and anxiety condition can be described as severe.   

339     I accept that prior to the incident, the plaintiff was a hardworking woman with a good work history, running her household successfully. As Dr Nathar noted the plaintiff was previously in good health and enjoyed work and she was now having enormous difficulty adjusting and coping with the fact she can no longer work.

340     Dr Middleton expressed a similar view that the plaintiff prior to the incident was a hard working woman who regarded herself as being basically indestructible with a strong ethos to work hard for her employer. Subsequent thereto, she was unable to come to terms with her situation with a Chronic Adjustment Disorder and severe Depression.

341     The plaintiff described herself as not the same person since the injury.[37]

[37]T50

342     The plaintiff sees Dr Kumar every couple of months for treatment. As he explained, the plaintiff’s symptoms meet nine of the diagnostic criteria for Major Depression.[38]

[38]See paragraph 158 of this judgment

343     The plaintiff continues to require quite significant medication. At various times she has been prescribed Endep, Pristiq, Avanza, Valium, Diazepam and Cymbalta, recently replaced by Lovan.  She has also been trialled on Valium. As Dr Kumar described, despite these multiple interventions, the plaintiff’s pain syndrome had not improved. 

344     The plaintiff also takes medication constantly for her spinal and shoulder pain.

345     The plaintiff’s sleep is poor and she spends her days miserably unable to do anything much around the house, being totally reliant on her husband – a situation that makes her depressed and ashamed. She does not go out much

346     The plaintiff is nervy and irritable and gets unfairly angry with her children.

347     The preponderance of medical evidence is that as a result of her psychiatric condition, the plaintiff is unable to work.

348     Considering the plaintiff’s psychiatric condition alone, I am satisfied that the consequence thereof are severe.

349     I accept that the plaintiff’s prognosis is poor and her psychiatric condition is permanent as Dr Kumar and Dr Nathar described. The condition has persisted for nearly five years without any real improvement and a continuing need for medication and psychiatric treatment.

350     Whilst Dr Senadipathy thought there may be a chance of improvement on finalisation of litigation, no practitioner is of the view that recovery is likely. Dr Kumar did not suggest that experimenting with psycho genomic testing would result in a resolution of the plaintiff’s condition. He had tried various medications without significant improvement and he considered the prognosis was extremely guarded.

351     In addition to the narrative test, the plaintiff must satisfy the further requirements in relation to loss of earning capacity namely that –

(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

352     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings.

353     The former must be calculated by reference to the six year period specified in s134AB(38)(f).

354     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

355     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

356     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.

357     Little was said in submissions as to the plaintiff’s capacity for employment. No “without injury” earnings figures were put. The plaintiff’s affidavit set out earnings in the range of $30,000 per annum.

358     Counsel for the plaintiff “waited to hear” what the defendant was going to say about the plaintiff’s condition which was “universally diagnosed and universally accepted as being incapacitating.”[39]

[39]T117

359     As earlier stated, the preponderance of medical opinion is that on psychiatric grounds the plaintiff does not have a capacity for employment.

360     Counsel for the defendant conceded it is not really a case where the court would be required to make fine calculations at 40 per cent.[40] Counsel conceded that the only practitioner saying the plaintiff has a work capacity is Mr Jones, who said she could work in a variety of jobs including working as a crossing supervisor.

[40]T123

361     Whilst Mr Dooley thought from an orthopaedic viewpoint only, the plaintiff would be capable of carrying out light physical work and clerical duties, in his view her prognosis depended on that of her chronic pain syndrome. 

362     I do not accept the plaintiff has any capacity to work as a crossing supervisor or in any other role as a result of her perceived pain and her psychiatric condition which requires the intake of significant medication.

363     I accept the views of treating psychiatrist Dr Kumar and general practitioner, occupational physician Dr Middleton, that the plaintiff is incapacitated and will not be able to return to work.

364 In those circumstances, I am satisfied that the plaintiff has a loss of earning capacity of forty per cent or more within the meaning of s134AB(38)(e) of the Act without being required to undertake any fine calculations

365     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

366     In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).

367     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

Subsection (g)

368     I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).

369     In light of my findings as to the plaintiff’s impairment and his incapacity for employed, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

370     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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