Aluthgamage v Select Care Personnel Pty Ltd
[2012] VSCA 111
•7 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2009 3890
| SISIE ALUTHGAMAGE | Appellant |
| v | |
| SELECT CARE PERSONNEL PTY LTD | Respondent |
---
| JUDGES | REDLICH and OSBORN JJA and CAVANOUGH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 May 2012 |
| DATE OF JUDGMENT | 7 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 111 |
| JUDGMENT APPEALED FROM | Aluthgamage v Select Care Personnel Pty Ltd (Unreported, County Court of Victoria, Judge Coish, 12 November 2009) |
---
ACCIDENT COMPENSATION – Appeal under s 134AD of the Accident Compensation Act 1985 – Whether serious injury – Loss of earning capacity – Principal medical expert called by defendant acknowledged loss of earning capacity in final report - Conflict between two expert reports – Earlier report based upon a false factual premise – Factors supporting final opinion – Very considerable loss of earning capacity established – 40 per cent exceeded – Serious injury – Appeal allowed.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A D B Ingram with Ms M Pilipasidis | Shine Lawyers |
| For the Respondent | Mr M Wheelahan SC with Mr S Gladman | Lander & Rogers |
REDLICH JA:
I agree with Osborn JA.
OSBORN JA:
The appellant is a 72 year old former nurse.
On 9 August 2003, she was working as a nurse at an aged care facility in East Burwood. She tripped and fell over bed linen which had been left on the floor after a patient had flung it there.
As a consequence, she suffered injury to her left wrist, elbow and shoulder.
In 2008, she sought leave to commence proceedings for damages for personal injury against her employer pursuant to s 134AB of the Accident Compensation Act 1985 (‘the Act’). Section 134AB(2) of the Act was amended on 2 December 2003. At the date the worker was injured it provided:
(2)A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999.
Serious injury was defined by s 134AB(37) to mean:
‘serious injury’ means—
(a)permanent serious impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.
Section 134AB(38)(b) and (c) provided:
(b)the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
The statutory test reflects the decision of the Full Court in Humphries v Poljak.[1] In that case, Crockett and Southwell JJ said that:
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.[2]
[1][1992] 2 VR 129. The case concerned the interpretation of the word ‘serious’ in s 93(17) of the Transport Accident Compensation Act 1986.
[2]Ibid 140.
Further, as Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd[3]:
The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other.[4]
[3][2009] VSCA 181.
[4]Ibid, [42].
Section 134AB(38) further provided in relation to loss of earning capacity:
(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in sub-section (37), the Authority or selfinsurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under sub-section (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in (i) paragraph (f); and
(ii)the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing the worker's gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date with 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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
Sub-section (j) further provided that the assessment of serious injury shall be made at the time that the application is heard by the Court, subject to certain exceptions not here relevant.
Section 134AB(38) provided with respect to psychological consequences of a physical injury:
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of ‘serious injury’ and not otherwise;
In order to bring common law proceedings, the appellant sought leave from the County Court pursuant to s 134AB(16)(b). The County Court judge was obliged by s 134AB(19) not to grant leave unless satisfied on the balance of probabilities that the injury was a ‘serious injury’ in the defined sense. The proceeding came on for trial before his Honour Judge Coish in November 2009. After hearing oral evidence from the appellant and considering affidavits, medical reports, certificates and correspondence, Centrelink records and video surveillance evidence, his Honour refused the appellant leave to commence proceedings for damages for personal injury and ordered her to pay the respondent’s costs.
The appellant now appeals against that decision. By reason of s 134AD of the Act, which was not repealed until 10 December 2009,[5] this Court must decide for itself whether, on the balance of probabilities, the appellant suffered a ‘serious injury’ as defined. Section 134AD provides:
On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.
[5]See s 2(5) of the Accident Compensation Amendment Act 2010.
No fresh evidence was sought to be adduced by the parties on the hearing of this appeal.
In Dwyer v Calco Timbers Pty Ltd,[6] the High Court stated:
32… Further, where the issue before the Court of Appeal is whether the County Court erred in its decision whether the injury complained of is a ‘serious injury’, s 134AD cuts in upon what otherwise are the generally expressed powers conferred by s 74(3) of the County Court Act for the disposition of appeals by the Court of Appeal. One possibility provided by s 74(3) is a direction that the civil proceeding be reheard before the County Court. However, s 134AD enjoins the Court of Appeal, with the assistance of what should be the detailed reasons of the County Court, to decide ‘for itself’ whether the injury is a ‘serious injury’ and to do so on the evidence and material before the primary judge together with such other evidence as the Court of Appeal itself has received. If, on the balance of probabilities, the Court of Appeal does decide that the injury is a ‘serious injury’ then the relief it gives will include the leave to bring the proceedings for damages which the appellant had sought under s 134AB(16)(b) but had failed to obtain in the County Court.
33Contrary to what apparently was assumed in Barwon Spinners (46) there is no scope for an order for a rehearing by the County Court on an appeal to which s 134AD applies. (Where the ground of appeal falls outside s 134AD, for example, an appeal ground that the reasons of the County Court do not reach the standard required by s 134AE (47), a rehearing may be ordered under s 74(3).) In this way the changes made by the 2000 Act speed the path of the appellant to a trial of the common law action or to conclude the litigation. Counsel for the respondent accepted that with respect to the issue of ‘serious injury’ the legislation takes the form just described so as to bring the leave proceedings to an end, something to the benefit of both sides.[7]
[6](2008) 234 CLR 124.
[7]Ibid, 135-6.
In Church v Echuca Regional Health,[8] Ashley JA, with whom Buchanan JA concurred, observed:
[8](2008) 20 VR 566.
111Since, subject to receipt of further evidence, this court must decide the critical question on the evidence and other material which was before the judge, since the judge’s reasons are not themselves part of that material, and since error is not a condition precedent to this court deciding the critical question, what assistance could be gained from detailed reasons?
112I should say that this court could be assisted in at least two ways. In the first place, a judge’s reasons would be likely to assist this court if they analysed the evidence in an ample and logical way; not because to do so would absolve this court of its fact-finding obligation, but because it would enable the parties to identify matters of common ground and where the area of debate begins; and because ample and logical reasons would provide very useful signposts to this court in carrying out its task.
113In the second place, it seems to me that reasons would be of assistance if they described any matter observed in court which, to the judge’s way of thinking, bore upon a witness’s credibility.[9]
[9]Ibid, 588 [111]-[113].
The appellant contends that she has suffered serious injury:
(a) in terms of pain and suffering;
(b) by reason of loss of earning capacity.
At trial there was no dispute that the appellant injured her left arm and shoulder when she fell at work on 9 August 2003. There was also no dispute that there was some residual injury to the left shoulder. The central issues were whether there was any organic basis for the appellant’s continuing complaints of left wrist and elbow pain and whether the residual impairment in the left shoulder was ‘serious’ as alleged by the appellant or minor or very mild as alleged by the respondent.
His Honour Judge Coish summarised the history of the appellant’s medical treatment as follows:
11On 9 August 2003 the plaintiff tripped and fell over bed linen at work and injured her left arm and shoulder. She attended the emergency department at Monash Medical Centre on 10 August 2003. An X-ray revealed a fracture of the proximal head of the radius. A number of radiological investigations were taken of the plaintiffs left wrist, elbow and shoulder in 2003 and 2004.
12The plaintiff was ultimately referred to Mr J. Salmon, orthopaedic surgeon on 12 November 2004. On 20 April 2005 he operated on the plaintiffs left wrist and shoulder. Mr Salmon has provided one report to the plaintiffs solicitors dated 28 July 2005 in which he sets out details of the history obtained from the plaintiff, his findings on examination, the results of various investigations and details of surgery he performed.
13Mr Salmon noted that conservative management of the radial head fracture resulted in satisfactory elbow function, however the plaintiff was still complaining of consistent pain in her shoulder and wrist. An X-ray of the shoulder demonstrated chronic subacromial changes including a spur and ultrasound reported a partial thickness tear of the rotator cuff. MRI scan showed the presence of extensor carpi ulnaris tendonitis and a possible triangular fibrocartilage complex injury. Mr Salmon's impression was that the wrist pain was due to tenosynovitis rather than the findings at MRI scan.
14Mr Salmon operated on the plaintiff on 20 April 2005. The findings at operation at the wrist were nodule and ganglion with swelling around the extensor tendons of the first dorsal compartment. Extensor tenosynovectomy was carried out. In the shoulder a partial thickness rotator cuff tear was debrided and arthroscopic subacromial decompression and subacromial bursectomy were carried out. Postoperatively the plaintiff’s wounds healed satisfactorily ..
15Mr Salmon reviewed the plaintiff on several occasions. He noted when seen on 1 June 2005 the plaintiff's shoulder and neck pain were much improved following surgery. At the time he suggested the plaintiff stay off work for another two months and at that time return to her nursing duties if possible.
16Mr Salmon was optimistic in terms of the plaintiff’s prognosis. He felt the longterm prognosis in relation to both the left wrist and shoulder injuries was satisfactory, though it was likely there may be some discomfort with certain activities at work, in particular, heavy lifting and prolonged repetitive activities. Mr Salmon was of the opinion that the plaintiff should be capable of most of her activities of daily living again, however, if there were activities requiring heavy lifting and prolonged repetitive use of the wrist or arm, the plaintiff may encounter some difficulty.
17In late 2005 and early 2006 the plaintiffs treating general practitioner, Dr Castle, provided WorkCover medical certificates which certified the plaintiff as being fit for normal duties for two to three days per week. These certificates were tendered in evidence, Exhibit 1.
18The plaintiff said she attempted to return to work. She worked six shifts of seven-hours duration between October 2005 and August 2006 but was not able to cope with her work. The plaintiff's treating doctor, Dr Sutcliffe, referred the plaintiff back to Mr Salmon and he saw the plaintiff on 6 March 2007 and 27 March 2007. A further ultrasound and X-ray of the left wrist was conducted on 13 March 2007.
19The plaintiff has also undergone further investigations including left wrist X-ray ultrasound on 21 September 2007, ultrasound left shoulder, X-ray left shoulder and lumbosacral spine and hips on 16 October 2007, X-ray cervical spine on 31 October 2007, MRI of the left wrist on 10 October 2008, ultrasound left shoulder and ultrasound left wrist on 21 January 2009, and an MRI cervical spine on 11 March 2009.[10]
[10]Reasons for judgment, 12 November 2009, [11]-[19].
I would add that a report from Mr Peter Kudelka, orthopaedic surgeon, of 28 February 2005 was also put in evidence. This confirmed that the surgery then contemplated for the appellant and subsequently carried out by Mr Salmon was appropriate. Mr Kudelka’s opinion was in part:
· I believe the proposed surgical treatment to the left shoulder is appropriate and is work related, i.e a repair of the left rotator cuff. The patient understands that there is a chance that she will develop a frozen shoulder and a chance that her symptoms will not be completely relieved, but she feel her degree of pain at the present time is such that she wishes surgery to be attempted and being a qualified Nurse I think she is fit to make this judgement.
· With respect to the left wrist I would suggest that on the same occasion, the relatively simple procedure of removing the thickened tendon sheath be carried out and this should give a good result.
· There is likely to be a slight permanent impairment with respect to left shoulder function even after surgery.[11]
[11]Report of Mr Peter Kudelka, Orthopaedic Surgeon, dated 28 February 2005.
An ultrasound undertaken at the Monash Radiology Clinic on 21 January 2009 found with respect to the left shoulder:
Mild heterogeneity of the supraspinatus tendon is seen in keeping with an anterior undersurface tear measuring 3mm in diameter. There is no tendon retraction. The subacromial/subdeltoid bursa is thickened but does not impinge.
The biceps tendon, subscapularis, infraspinatus and teres minor tendons are preserved.
There is no impingement.[12]
[12]Report of Dr Manish Jain, Monash Radiology, dated 21 January 2009.
In respect of the left wrist, the ultrasound result is recorded as follows:
The APL/EPB[13] complex is intact. Adjacent to the extensor common origin is a 1.4x3x6mm hypoechoic cystic fluid lesion consistent with a ganglion.[14]
[13]The abductor pollicis longus is the long abductor muscle of the thumb. The extensor pollicus brevis is the short extensor muscle of the thumb.
[14]Ibid.
On 10 October 2008, an MRI examination had been carried out in respect of the left wrist at John Fawkner Private Hospital. The results were recorded as follows:
Clinical Notes: Persisting pain following surgery for De Quervain’s tenosynovitis.[15]
[15]Stenosing tendo-vaginitis of the thumb abductor and extensor.
Technique: Multisequence multiplanar imaging.
Findings: There is hyperintensity within the soft tissues adjacent to the ulnar styloid process, consistent with a non-specific synovitis. Several small osseous cysts are noted within the distal ulnar and there is a small amount of fluid within the distal radio-ulnar joint. The triangular fibrocartilage is abnormal with two full thickness tears/perforations involving the central portion, at both the radial and ulnar aspect, close to the respective attachments. Additionally, there is partial thickness undersurface tearing of the cartilage at its anterior aspect. The ECU tendon is intact enlocated within its groove on the dorsal aspect of the ulna and of normal size and signal intensity.
The tendons of EPB and APL are intact and unremarkable in appearance with no signal abnormality, swelling or fluid distension of the tendon sheaths.
The scapholunate and lunatotriquetral ligaments appear grossly intact. There are small subchondral cysts and foci of marrow oedema within the lunate and on either side of the lunatotriquetral joint suggestive of degeneration. The extrinsic wrist ligaments are unremarkable. There is no abnormality of the remaining long extensor and flexor tendons. There are several tiny ganglion cysts measuring up to 3mm, located immediately adjacent to the tip of the ulnar styloid, at the articulation between capitate and hamate and adjacent to the articulation between scaphoid and trapezium.
Median and ulnar nerves have a normal appearance.
Conclusion:
1. No abnormality of the EPB and APL tendons.
2. Triangular fibrocartilage tearing as described.
3. Non-specific ulnar sided synovitis and ganglion cyst formation.
Both in her affidavit and in oral evidence, the appellant asserted that she continued to suffer persistent pain in her left shoulder, arm and wrist.
In her first affidavit, dated 2 October 2007, she stated:
24I continue to suffer constant persistent pain in my left shoulder, left arm and left wrist. Not a single day goes by during which I do not experience some degree of pain in my left arm and left shoulder. My left wrist is constantly sore and swollen. I have been unable to obtain free range of movement in my left wrist and left shoulder since the surgery.[16]
[16]Affidavit of Sisie Aluthgamage sworn 2 October 2007, [24].
In her second affidavit, dated 6 February 2009, she said:
4Since the date of swearing the previous affidavit I have continued to suffer with ongoing pain and limitation in my left shoulder, arm and wrist. I use heat packs two to three times each week to try to soothe my neck muscles and to help me get off to sleep. My sleep continues to be troubled by my left arm problems. I cannot sleep on my left side and I find that if I do move onto it accidentally during the night I will wake. I estimate that I wake a few times each night and this leads to me waking up and not feeling refreshed.
…
6Since swearing the previous affidavit I continue to have problems raising my arm above shoulder height. I can do it but it is very uncomfortable and I try not to do it. I can carry a few kilos in my left arm but I have difficulty lifting a weight like that up. This is because of pain in my left wrist. I have difficulty hanging out clothes or even doing basic personal hygiene tasks such as shampooing my hair with my left hand, doing up my bra, doing my hair or even tying my shoe laces.
7.I do still drive but I limit myself to very short distances of around ten kilometres. I do go to the shops but normally my husband is with me if we have to do any major shopping. He pushes the trolley and lifts things off the higher shelves for me.
8.I continue to take panadeine and panadol tablets each day for the pain that I am in. I find that the pain is wearing me down and I feel increasingly angry and upset at the state that 1 am left in. 1 find now that my left thumb locks into position and this increases my pain and makes it very difficult to hold anything, such as a steering wheel.
9.The pain and its affect on my mental state are affecting my personal relationships. I can't have our friends over for dinner and l have lost contact with a number of people. I have become isolated.[17]
[17]Affidavit of Sisie Aluthgamage sworn 6 February 2009, [4], [6]-[9].
In cross-examination, the appellant described her symptoms as constant pain in the wrist and shoulder and occasional pain in the elbow. She said she can carry items in her left hand. She said she did housework with pain all the time and that most of the time her husband helped her. She said she would love to work in a job such as writing reports and patient records but she had not been offered such a job.
In one exchange in re-examination the appellant stated as follows:
HIS HONOUR; When you were answering Mr Ingram's questions before I should have indicated for the benefit of the transcript you were holding your left wrist ... When you were telling us about your pain before, you were holding your left wrist?---Yes, Your Honour.
Was that to demonstrate where the pain was, why were you holding your left wrist?---To ease the pain.
Now?---Pain.
Is it painful now?---Even now painful, Your Honour.
Was the left wrist a problem back then?---Yes, Your Honour.
MR INGRAM: Has the left wrist ever gone away as a problem?---Left wrist?
Ever gone away as a problem?---No.
This is the sort of evidence in respect of which the trial judge is materially better placed to form an assessment than an appeal court. It requires, in part, a judgment as to the manner in which the appellant gave her evidence and evinced pain. Nevertheless, as the authorities make clear, the question of credit is ultimately a matter for us on a s 134AD appeal.[18]
[18]Church v Echuca Regional Health (2008) 20 VR 566, 587 [113], 591 [125]-[127] (Ashley JA with whom Buchanan JA agreed), 594 [139] (Pagone AJA).
His Honour carefully considered and summarised the medical reports before him as follows:
36I have considered all the medical evidence however I shall only briefly summarise the opinions of the principal doctors relied upon by each party. Dr Sutcliffe has been the plaintiff's treating doctor since 23 June 2004. She has provided a series of reports. In her most recent report dated 12 February 2009 she comments upon the plaintiff's injuries. She states: ‘I believe that Mrs Aluthgamage sustained a fracture of the head of the left radius, injury to the triangular cartilage of the left wrist, musculoligamentous injury to the left forearm and elbow resulting in longstanding left lateral epicondylitis and also tear of the left supraspinatus tendon as a result of a fall at work on 9 August 2003. She also sustained De Quervain's tenosynovitis as a result of the trauma. Recent investigations Indicate persisting left shoulder tear and ganglion at the site of EPB/APL repair. The fracture at the head of the radius was treated appropriately with immobilisation and after the delay in diagnosis and assessment eventually repair of the supraspinatus tendon was performed with reasonable results to date. Further, De Quervain's tenosynovitis was diagnosed and treated surgically with some decrease in pain as a result. Initially, there was some improvement in the condition after the surgery but Mrs Aluthgamage now has increased symptoms consistent with rotator cuff injury to the left shoulder and also pain a the radial aspect of the left wrist consistent with the findings of ganglion a the site of the EPB/APL tendons.’
37Dr Sutcliffe was of the opinion that the severity of the pain and limitation of range of movement of the left shoulder limited the plaintiff from returning to any employment. She was of the opinion that the plaintiffs conditions were entirely physical in nature. She felt that as a result of persisting pain the plaintiff required further upper limb surgeon referral and surgery of arthroscopy and a repair may be required.
38Dr Sutcliffe stated, ‘The ultrasound examinations performed in 2008 and in 2009 confirm the presence of a supraspinatus tear of the left shoulder. MRI of the left shoulder is required to further define the condition. Referral again to an upper limb surgeon is required to assess if surgery is indicated, particularly in the light of increasing symptoms of the left shoulder. Further opinion is also required in relation to the painful left wrist at the radial border where ganglion has been identified. All these conditions are work related and continue to be related to the fall of 9 August 2003 in my opinion.’
39Mr Schofield, orthopaedic surgeon, examined the plaintiff at the request of her solicitors and he has provided two reports. In his second report date 4 November 2009 Mr Schofield expresses the following opinions: ‘When examined on your behalf on 12 December 2008 it was noted that there were minimal clinical signs in her neck except for some loss of extension and neurological examination of the upper limbs was normal. X-rays showed degenerative change at C5-6 which would be consistent with her age. MRI scan was advised to determine if there had been a prolapse which would be sufficient to cause the symptoms relating to her left arm from the shoulder to the wrist. The MRI scan does demonstrate age related symptoms but no specific left-sided nerve root compression. It is therefore unlikely in my view that your client has injured her neck sufficiently to cause ongoing left arm pain. Left shoulder symptoms were noted soon after the injury with surgery being performed in April 2005. She continues to have symptoms and signs consistent with some persisting rotator cuff pathology. The current ultrasound confirms that there are persistent problems with regard to the insertion of the supraspinatus. She did have a positive impingement test but that has not been supported by the ultrasound. The reason for my request for MRI scan was because the findings on MRI scan are more specific and detailed than ultrasound. It is therefore my view that the symptoms and signs in her left shoulder continue to be work related. Prognosis for the future remains guarded and eventually she may require further arthroscopic examination. Finally, the ultrasound findings in the left wrist are very minor. My examination revealed a good range of movement of the wrist in all directions and there was no wasting of the muscles of the hand, thumb or arm. It is therefore unlikely that her continuing problems with the left wrist are work related. I can only conclude that the symptoms in the left wrist and thumb and the cervical spine are due to soft tissue changes only and are unlikely to be progressive as a result of the injury.’
40Mr Dooley, orthopaedic surgeon provided three reports at the request of the defendant or its solicitors. In Mr Dooley's report dated 9 February 2009 he expresses the following opinions; ‘(1) As stated she has largely recovered from the physical effects due to the accident. She has no evidence of persisting tenosynovitis, affecting the left thumb and she has only minor rotator cuff tendonitis affecting the supraspinatus tendon in her left shoulder. There is no evidence of persisting physical injury affecting the left elbow joint. The fractured head of the radius healed spontaneously and there is no evidence of any physical abnormality present in her left elbow or forearm ...... (3) The physical findings as detailed in the examination are largely normal, that is, only minor limitation of movements in her left shoulder and her left thumb in effect is normal. (4) Mrs Aluthgamage is now aged 68 years and will be aged 69 years in April of the current year. She is now permanently retired, she receives the Old Age Pension from the Norwegian government where she previously worked for eight years as a theatre nurse. Following the accident she did resume part-time work. I have detailed the duties she carried out and from the physical point of view, even currently, I believe that she would be fit to return to those duties but there is no question of her so doing as she is now permanently retired. (5) The prognosis from the physical point of view is excellent, she has no signs of recurrence of the tenosynovitis in her left thumb, and similarly she has no signs of physical injury in her left shoulder apart from minor stiffness. The prognosis for both physical injuries is excellent and her left elbow joint is now normal following healing of the fractured head of her radius. (6) She has not received any physical treatment or operative treatment for her left arm condition since I last examined her. She now takes minimal analgesia intermittently, which indicates that any persisting symptoms with pain are minor.’
41In Mr Dooley's most recent report dated 30 September 2009 he expresses the following opinions: ‘(1) She has no symptoms relating to her left elbow, the minor crack in the head of the radius healed uneventfully and she has a full painless range of movements in her left elbow with no evidence of any tendon damage in her left elbow. Also I believe that her left wrist has fully recovered, she has no signs of any physical injury or pathology relating to the previous tenosynovitis/tendovaginitis affecting the abductor pollicislongus and extensor pollicisbrevis tendons in the first dorsal compartment of her left wrist. An MRI confirms that this area is normal. There are no clinical findings in the area of the triangular fibrocartilaginous complex on the ulna side of her left wrist. This area is clinically normal. The minor tears in the triangular cartilage are degenerative in nature and not caused by the injury and accident of 9 August 2003. She still complains of pain in her left shoulder, she has minor stiffness affecting her left shoulder but there are no impingement signs. There are no signs that she has sustained any physical injury to her cervical spine in the fall at work on 9 August 2003. (2) The only abnormal clinical findings present are noted with examination of the left shoulder, where she has minor residual stiffness and continuing symptoms relating to the injury to the left shoulder. I believe her left elbow, wrist and her arm otherwise are normal on examination. (3) She is now aged 69 years and permanently retired. In my previous reports of 7 December 2006 and 9 February 2009, I stated she had returned to work but working in geriatric nursing for only seven hours per week. Certainly her left wrist injury is now fully recovered. This would not preclude her from returning to geriatric nursing. For the shoulder, she is not fit to return to work that might involve use of her arm at or above shoulder level, but I believe she would be fit to do light administrative type work and not heavy geriatric nursing, working no more than 20 hours per week in administrative type work. The probabilities are that she is fit for hands-on repetitive work involving use of her left arm. (4) Her treating doctors have not advised further surgery as probably it would not help her. The prognosis for the physical injuries for her left wrist injury as stated is excellent, and for her left shoulder injury, again I believe there will be some natural recovery. Her symptoms now I believe are somewhat exaggerated and the probabilities are that she should be able to use her left arm more than she does currently with her housework. (5) She has received no physical treatment or other treatment for either her left shoulder or left wrist since I last saw her, she continues to take medication only, that is, non-prescription light analgesics, I do not believe she would benefit from resuming physical treatment of any mode for her left shoulder, apart from doing an active exercise program.’[19]
[19]Reasons for judgment, 12 November 2009, [36]-[41] (emphasis added).
The trial judge then noted that the appellant continued to complain of symptoms of pain in the left wrist and elbow. Her description of pain in the left wrist was a significant part of her evidence. It was therefore necessary for his Honour to decide whether he accepted there was impairment or loss of bodily function resulting from injury to the left wrist and elbow. His Honour did not accept that there was:
44Mr Ingram submitted that I ought infer on-going physical injury to the wrist because it had been injured in the fall and the plaintiff described persisting symptoms since that time. I reject that submission. The left wrist has been extensively investigated and examined. I have quoted in detail from the reports of Mr Schofield and Mr Dooley in respect of the left wrist and I repeat that Mr Schofield was of the opinion that it was unlikely that the plaintiff's continuing problems with the left wrist were work related. He stated that, ‘Furthermore the clinical signs and investigations in the left wrist fail to identify any clear cause for the continuing symptoms in that area.’ I accept the opinions of Mr Schofield and Mr Dooley in relation to the left wrist.
45Further I accept the opinion of Mr Dooley that the minor crack in the head of the radius healed uneventfully and when examined on or about 30 September 2009 the plaintiff had a full, painless range of movement in her left elbow with no evidence of any tendon damage in the left elbow.
46I prefer and accept these opinions in relation to the left wrist and left elbow to those expressed by Dr Sutcliffe owing to the greater expertise of the medico-legal consultants, Mr Schofield and Mr Dooley, both orthopaedic surgeons. I am therefore not satisfied that there is any organic basis for impairment or loss of body function of the left upper limb insofar as such impairment or loss of body function is said to relate to left wrist, thumb, or elbow injuries.[20]
[20]Reasons for judgment, 12 November 2009, [44]-[46] (emphasis added).
His Honour then turned to consider whether the injury to the appellant’s left shoulder constituted a serious injury and concluded as follows:
51There is a significant difference of opinion between the opinions of Dr Sutcliffe and Mr Schofield on the one hand and Mr Dooley on the other hand in respect of the extent of any impairment or loss of body function resulting from the left shoulder injury. I prefer and accept the opinions of Mr Dooley for these reasons: (1) The plaintiff's treating surgeon, Mr Salmon, provided an optimistic prognosis, the only report from Mr Salmon to the plaintiff's solicitors is dated 28 July 2005. Although Mr Salmon saw the plaintiff again on two occasions in 2007 there is no evidence from him in respect of these consultations. In the circumstances I do not speculate, nor draw any inference about the evidence he may have given. (2) The plaintiff's treating doctor, Dr Castle, provided certificates that the plaintiff was fit for normal duties in late 2005 and early 2006 for two to three days per week. The plaintiff had been working three seven hour shifts per week when injured. (3) The video surveillance showed the plaintiff undertaking activities in an unrestricted manner on five different days, 6 March 2008, 17 March 2008, 13 May 2008, 15 May 2008 and 9 October 2009. (4) The plaintiff takes relatively small amounts of medication for pain relief. (5) Mr Dooley has seen the plaintiff on three occasions, 5 December 2006, 9 February 2009 and 30 September 2009. (6) I have not accepted the plaintiff as a reliable witness in respect of evidence concerning the extent of her left upper limb impairment. I do not accept her complaints of wrist and elbow pain to be organically based. I find Mr Dooley's analysis of the medico-legal issues to be comprehensive and most persuasive.[21]
[21]Reasons for judgment, 12 November 2009, [51].
It is to be noted that his Honour’s conclusions were based squarely upon the opinion of Mr Dooley and that he emphasised that Mr Dooley had seen the appellant on three occasions and that Mr Dooley’s analysis of the medico-legal issues was comprehensive and persuasive.
The judge concluded that he was satisfied that there was only minor residual impairment in the appellant’s left shoulder and that the appellant had not established that she had suffered a serious injury by reason of the consequences of pain and suffering.
This conclusion is attacked on appeal on a series of bases, but for reasons which will become clear it is unnecessary to analyse those grounds of appeal. It is sufficient to turn to the second basis of the appellant’s case concerning loss of earning capacity.
His Honour disposed of this aspect of the case as follows:
55Finally, dealing with the application in respect of loss of earning capacity, I accept Mr Dooley's opinions that the plaintiff was fit for work as a geriatric nurse when examined on 9 February 2009. Mr Dooley, at the time of that examination had access to the ultrasound of the left shoulder and left wrist carried out on 21 January 2009. Mr Dooley obtained a history from the plaintiff of her pre-injury duties.
56I have already set out Mr Dooley's opinions in detail at the time of both that examination and the final examination on 30 September 2009. The plaintiff's affidavit contains no details of her pre-injury duties. The plaintiff has not established that she is not fit for her pre-injury employment as a result of her physical injury.[22]
[22]Reasons for judgment, 12 November 2009, [45]-[56].
There is a fundamental problem with these conclusions. Mr Dooley made clear in his final report that his opinion was not that the appellant was fit for her pre-accident employment, but that when last seen she was, as a result of her injuries, fit for light duties only. Mr Dooley’s conclusion was expressed in answer to a specific question as follows:
3.Do you remain of the opinion that, considering the plaintiff’s physical injuries, she is fit to return to her pre-injury duties as a geriatric nurse?
She is now aged 69 years, and permanently retired. In my previous reports, of 7 December 2006 and 9 February 2009, I stated that she had returned to work, but working in geriatric nursing for only seven hours per week. Certainly, her left wrist injury is now fully recovered, and this would not preclude her from returning to geriatric nursing. For the shoulder, she is not fit to return to work that might involve use of her arm at or above shoulder level, but I believe she would be fit to do light administrative type work, and not heavy geriatric nursing, working no more than twenty hours per week in administrative type work. The probabilities are that she is fit for hands-on repetitive work, involving use of her left arm.[23]
[23]Report of Mr Brendan J Dooley dated 30 September 2009.
Counsel for the respondent drew attention to his Honour’s opening reference to Mr Dooley’s opinion as at 9 February 2009.[24] As at that date, Mr Dooley answered the specific question whether the appellant was capable of resuming employment as a geriatric nurse as follows:
Mrs Aluthgamage is now aged 68 years and will be aged 69 years in April of the current year. She is now permanently retired. She receives the Old Age Pension from the Norwegian government where she previously worked for eight years as a theatre nurse. Following the accident she did resume work part-time; I have detailed the duties she carried out, and from the physical point of view, even currently, I believe she would be fit to return to those duties but there is no question of her doing so as she is now permanently retired.[25]
[24]Reasons for judgment, 12 November 2009, [55].
[25]Report of Mr Brendan J Dooley dated 9 February 2009.
Counsel for the respondent submits that taken together Mr Dooley’s reports support the conclusion that the appellant did recover from her injuries sufficiently to return to work in February 2009, but by September 2009 had become unfit for such duties due to her increased age. I do not accept that the evidence can be reconciled in this manner.
(a) Mr Dooley’s ultimate opinion is plainly expressed to relate to incapacity resulting from the appellant’s injuries.
(b) That opinion is expressed in a context where the medical imaging continued to demonstrate objective signs that the rotator cuff injury to the appellant’s shoulder was not fully resolved.
(c) There is a discrete basis for doubting the opinion expressed in February 2009. It is premised upon a misunderstanding of the appellant’s work history.[26] Mr Dooley referred to the appellant as returning to work in 2005:
[26]Cf TAC v Kamel [2010] VSCA 110, [93]-[94].
Mrs Aluthgamage, after coming to Australia in 1988, continued to work as a theatre sister for around two years and then she started work in geriatric nursing attached to the Royal Melbourne Hospital campus. She commenced with the Select Care Personnel, an agency, in 1999 but worked at only one geriatric nursing residence, namely the Arthur Preston Residential Nursing Centre in East Burwood. She worked there 21 hours per week till her time of injury. Her work there, both before the injury and after return to work in the centre, consisted of general care of geriatric patients. This included washing and showering, grooming, feeding) including gastric feeding if indicated, handing out medication, transfer of patients from whee1chair to bed etc. When she returned to work in October 2005 she still did the same work involving the use of both arms, the left as well as the right arm. She is ambidextrous but writes with her right hand only.[27]
[27]Report of Mr Brendan J Dooley dated 9 February 2009.
The September 2009 report also refers to the appellant returning to geriatric nursing on 12 October 2005 and continuing to do casual work averaging about one session of seven hours per week. In fact, the evidence demonstrated that the appellant completed only six seven hour shifts during her attempt to return to work before she was unable to continue. She did not return to work in October 2005 in any substantial sense and the February 2009 report is thus based on a false premise. She worked on 30 October 2005, 7 November 2005, 12 November 2005, 9 March 2006, 5 June 2006 and 23 July 2006. She worked in different places ranging from the Royal Melbourne Hospital to nursing homes.
(e) It cannot be correct for the trial judge to accept Mr Dooley’s ultimate opinion with respect to pain and suffering consequences, on the basis that he saw the appellant on three occasions and that taken together his reports are comprehensive, on the one hand, and to reject his ultimate opinion as to fitness for work on the other.
(f) Mr Schofield’s view was that the appellant continued to have symptoms and signs consistent with some persisting rotator cuff pathology as at 4 November 2009. In particular, the current ultrasound confirmed that there were persistent problems with regard to the insertion of the supraspinatus. In his view, the symptoms and signs in the left shoulder continued to be work related. His view was that the appellant did not have the capacity for work. This opinion supports Mr Dooley’s ultimate conclusion, rather than his interim conclusion, that the appellant was fit to return to her pre-accident employment.
(g) Lastly, I note for completeness that if the reconciliation of Mr Dooley’s opinions suggested on behalf of the respondent were accepted, the appellant was, on any view, unable to work until her shoulder surgery resolved some two years after the accident and was then unable to work effectively in the last year of her claimed incapacity. This amounted to a period, as counsel for the respondent conceded, in excess of 40 per cent of the time during which she claimed she would have worked but for the injury.
Further and in any event, I accept Mr Dooley’s ultimate opinion on the balance of probabilities for the purposes of the s 134AD appeal. That opinion reflects the probabilities on the whole of the evidence despite Mr Dooley’s view that the appellant exaggerated her symptoms somewhat to him. It is the medical opinion advanced on behalf of the respondent at trial as most probably correct and, in my view, is fairly regarded as the respondent’s best case.
Senior counsel for the respondent drew attention to the relative paucity of the appellant’s description of difficulties when she returned to work.
[COUNSEL]: When you did those shifts and you had those certificates there about your capacity for work, how did you cope with the work that you did in those shifts?---It was very hard to cope with the (indistinct) so I was always behind because when I give medication I have to peel the tablet with this finger, thumb, then that get locked, so I have to wait about two, three, five minutes to let it subside, so that happened most of the time so I thought I can't continue this job with that pain. So even though this six shifts have done for 11 month periods, Your Honour, this shift has done for 11 month period time because I couldn't continue to do that shift, I only could do one shift a month like - that done my me.
HIS HONOUR: Start again because I don't understand what you are saying?---I done six shifts, about six shifts 28 from October 2005 to August 2006.
…
What did you do?---I - I performed my full nursing duty with my very difficult manner because it's -hand is -thumb is locking, however I had to - if I go to work I have to finish my work anyway whether I have pain or not. So I did find it very difficult that way therefore I thought this is not - this can't continue this way with this pain, then I told the doctor even though I got a certificate for this day to work and after that when I couldn't work I told him, I can't work any more with this pain that's why I stopped working on August 2006.
The evaluation of this evidence is difficult, when:
(a) the transcript demonstrates that as the trial judge specifically found the appellant suffered from some ongoing linguistic difficulties and was not, for one reason or another, a particularly persuasive oral witness;
(b) these answers may be regarded as supporting his Honour’s view that the appellant exaggerated the symptoms which she suffered in her left wrist. The difficulty that the respondent faces is that, nevertheless, Mr Dooley’s opinion, which acknowledges exaggeration of this kind, is that she is only fit for light work.
There are, however, a series of circumstances which may be regarded as supporting Mr Dooley’s opinion that the appellant was fit for light work only.
(a) The work the appellant was doing three days a week before she was injured consisted of general care of geriatric patients. This included washing and showering, grooming, feeding, including gastric feeding if indicated, handing out medication, transfer of patients from wheelchair to bed etc. It plainly involved some heavy and potentially physically stressful elements.
(b) The appellant had an incentive to work, in that her husband had ceased to work and she wished to continue to make payments towards the purchase of a jointly owned investment property. There is no real reason to doubt that she would have continued to work three days a week if she could have.
(c) The appellant attempted to return to work on a series of occasions at a variety of nursing facilities to which she was assigned by an agency. She initially attempted to work one day a week and then made recurrent but less frequent attempts to work. She attempted to return to work on a number of occasions. She did not cope with her duties.
(d) There is a plain difference between the domestic activities she has undertaken with the help of her husband since she was injured and the heavier nursing duties she formerly performed. As I have said, Mr Schofield’s opinion supports the view that the appellant is not fit for her pre-accident employment. The unanimous specialist orthopaedic opinion is that the appellant is not fit for heavy work.
Accepting, then, that Mr Dooley’s ultimate opinion is the proper basis for assessing the question of loss of earning capacity, the remaining question is whether that opinion should lead to the conclusion that the appellant has been seriously injured by reason of loss of earning capacity. His Honour had before him a report from an occupational therapist which assessed the appellant’s occupational potential.[28] The report expresses the opinion that, by reason of her age and lack of alternative skills (including in particular computer skills), the appellant was effectively unemployable if she was unable to return to her previous occupation. Whilst the report is not specifically premised upon Mr Dooley’s view of the appellant’s injuries, it is nevertheless useful in respect of its assessment of the significance of the appellant’s age and elaboration of the lack of potential opportunities for suitable employment in the open labour market.
[28]His Honour did not refer to this report in his decision, presumably because he had concluded the appellant was in fact fit to return to her pre-accident employment.
No submission was made on behalf of the respondent that if Mr Dooley’s opinion were accepted this did not support the consequent conclusion that the appellant had suffered at least a very considerable loss of earning capacity as a result of her injuries. In my view, it plainly did. As I have said, there can be no dispute that the appellant was unfit for work for the initial two year period following the accident until she had undergone surgery and the post-operative consequences had resolved. She then had somewhat less than five years of potential work as a nurse. I am satisfied that she has not been able to resume that work because of the continuing effects of the injury to her shoulder and arm.
By virtue of the definition of ‘suitable employment’ found in s 5(1) of the Act, regard is required to be had to ‘the nature of the worker’s pre-injury employment’ and ‘the worker’s age, education, skills and work experience.’ As at the date of trial, the appellant was 69 years of age. She had worked as a qualified nurse in a number of countries for more than 40 years. She was plainly qualified to continue working in that capacity but, equally, faced difficulties in obtaining employment in other areas of work. Her evidence at trial was that she could not return to the type of light administrative nursing work envisaged by Mr Dooley because she did not have computer skills. I accept that having regard to her pre-injury employment, her age, education, skills and work experience, the appellant had no practical capacity for suitable employment after her attempts to return to nursing. Her age effectively precluded successful retraining. No submissions were made to the contrary on behalf of the respondent.
It follows that the appellant has suffered at least a very considerable loss of earning capacity as a result of her injuries when judged by comparison with other cases in the range of possible cases. Such loss of earning capacity exceeds 40 per cent or more measured in accordance in with s 134AB(38).
In turn, these conclusions are determinative of the issue of serious injury. It is sufficient if the appellant has established that she has suffered a serious injury by reference to the criterion of loss of earning capacity.
There is no analogue of s 134AB(17) limiting an applicant who satisfies the loss of earning capacity requirements of s 134AB, but not the pain and suffering requirements, from claiming pain and suffering damages.[29]
[29]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170, [63].
Accordingly, the appeal should be allowed.
CAVANOUGH AJA:
I agree with Osborn JA.
18
2
0