Anderson v Transport Accident Commission
[2024] VCC 1966
•10 December 2024
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-01930
| KELLIE ANNE ANDERSON | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 11 November 2024 | |
DATE OF JUDGMENT: | 10 December 2024 | |
CASE MAY BE CITED AS: | Anderson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1966 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – right shoulder impairment – range
Legislation Cited: Transport Accident Act1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr R Stanley SC with Ms M Cameron | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 31 August 2017 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4The body function pursuant to sub-paragraph (a) relied upon by the plaintiff is the right shoulder. The plaintiff did not proceed with her applications in relation to both knees and psychiatric impairment.
5The enquiry under sub-paragraph (a) of the definition focuses attention first upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.
7In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant or marked”?[1]
[1] See Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141
8The plaintiff swore two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
9From the defendant’s perspective, the issues in this application were separating the consequences of the compensable injury from other injuries,[2] identifying the nature of the injury,[3] and range.
[2]Per Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
[3]Transcript (“T”) 63
10The defendant’s principal submission was there had been recovery in light of Dr Menz’s and Mr Cunningham’s comments. The chronology indicated it was a very minor current injury.[4]
[4] T70
Plaintiff’s evidence
11The plaintiff is presently aged 47, having been born in October 1977. She is right handed. She lives in Hamilton with her husband, a disability pensioner. They have four daughters in their 20s.
12The plaintiff did not complete Year 11. She has worked part time for Repco since December 2004 as a delivery driver and sales assistant, and for R & M McKenzie Security Services (“R & M”) as a security officer since 2010.
Pre-accident health
13The plaintiff suffered a displaced coccyx in about 1998 through childbirth, and also suffered an injury to her neck and back as a result of a motor vehicle accident in about 2000.
14The plaintiff had been told about a visit to her GP, Dr Wang, on 9 May 2015, following which he recorded:
“constant right shoulder pain and limited function post the injury for one week fromtrampoline (sic).
…
pla[i]n xray and ultrasound
shoulder sling given
[prescription of] Tramadol
Bendigo Radiology.”
15On 18 May 2015, Dr Wang noted:
“ongoing right shoulder pain
refer to physiotherapy.”
16On 10 June 2015, Dr Wang noted the plaintiff was:
“also needing [D]iazepam-using more due to shoulder pain, hates needles not wanting steroid injection
advised of side effects and addictiveness.”
17Years later on 6 March 2019, Dr Sareetaa Vijayan noted the plaintiff was:
“Requesting reports from scans 2015 to present
Going to see orthopod in Melbourne on instruction from solicitor
- reports including surgical correspondence within this provided … to patient
Patient to pick up imaging from [B]endigo radiology and lake imaging.”
18Dr Wang apparently organised an x-ray and ultrasound of her right shoulder, which was performed on 11 November 2015. Notwithstanding the above records, the plaintiff does not recall any incident involving a trampoline, attending her doctors with right shoulder pain, undergoing an x-ray and ultrasound of her right shoulder, or being referred for any physiotherapy. Nor does she recall any ongoing right shoulder pain.
19The plaintiff agreed she had a trampoline at home, but having been taken to the clinical notes detailing a complaint of shoulder pain, denied any memory of that incident and hurting her right shoulder.[5]
[5] T1
20She did not deny the trampoline incident happened; she just had no memory of it. She did not tell Dr Menz it was a significant injury.[6]
[6] T47
2016 motor vehicle accident
21The plaintiff suffered an injury to her right knee as a result of a motor vehicle accident on 29 August 2016 (“the 2016 accident”). The accident was pretty significant.[7] It happened as she was turning onto Ballarat Road in Hamilton, when she hit a car travelling at about 60 kilometres per hour.[8]
[7]T9
[8]T4
22When the plaintiff walked back to her house after this 2016 accident, she noticed knee pain. When she got up to move the next day, she was sore and stiff from head to toe – “It hurt to reach, it hurt to sit, it hurt”. She accepted she had pain. She did not specifically remember her shoulders being sore; she knew they hurt, but everywhere hurt.[9]
[9] T8
23She saw Dr Wark the day after this accident. While he recorded “right knee sore after motor car accident yesterday … right shoulder, right elbow and headache,” she does not recall suffering from right shoulder pain after this accident. She recalled feeling sore and stiff from head to toe, but not her right shoulder specifically.[10]
[10]T2
24On 4 October 2016, Dr Wark’s note about the 2016 accident included
Right knee injured. Noticed pain after shock.
Swelling of right knee. ?hit door or steering column.
Bruising down right thigh, shoulder, arm, back.… .”
25The plaintiff could not remember any bruising on her shoulder specifically. She agreed her knee hit the steering column in that accident, but she did not recall bruising. She did not recall bruising in her shoulder five to six weeks after that accident.[11]
[11] T4
26She could only remember knee pain and she could not recall being bruised or uncomfortable as Mr Cunningham noted. She could not recall shoulder stiffness as Dr Grossbard noted. She confirmed, as she had deposed, she could not recall suffering any right shoulder pain following that accident.[12]
[12] T5
27She had not had any problem with her right shoulder leading up to the 2017 accident.[13]
[13] T48
Right knee condition before the 2017 accident
28Mr Cunningham performed a right knee arthroscopy on 6 December 2016 which helped with her right knee symptoms. She was off work for a few weeks following surgery and then went back to both her jobs.
29Although she could not run like she used to, she was still able to walk and go up and down stairs without too much difficulty. From time to time, she relied on some painkillers, particularly if there was prolonged walking involved with the security work. Nevertheless, she managed to get by. She did, however, end up giving up basketball at that stage because of ongoing right knee pain.
30She recalled when she saw Mr Cunningham a couple of weeks after the arthroscopy, she was still walking with a tremendous limp.[14] It took her a while to get over the arthroscope and she walked with a limp for nearly two years. She ended up getting rid of the limp by walking in the caravan park doing security work.[15]
[14] T10
[15] T11, see paragraph 136 of my judgment
31She then said she maybe had a slight limp, but it would not have been noticeable before the 2017 accident, despite having said she was walking with a limp for a good two years. It was not a major limp, because she was going up and down ladders to get parts at Repco.[16]
[16] T12
32As at 7 June 2017, Dr Anthony Wark noted the plaintiff was just back at work and attending physio: “right knee swells. Stress an[x]iety and insomnia”.
33She agreed she was prescribed Codalgin Forte for her knee pain, only four days before the 2017 accident.[17] That knee injury had caused her to cut back many activities, including basketball and other enjoyable pursuits.[18]
[17] T12
[18] T13
The 2017 accident
34On the said date, she was travelling home from Warrnambool. Having reached the outskirts of Hamilton at about 7pm, she was approaching the last right-hand bend that leads into Hamilton. It was dark and she had her headlights on full beam. There was a vehicle parked on the other side of the road with its lights on. There was also a vehicle parked on her side of the road. She dimmed her lights and started to slow down. As she dimmed her lights, two horses appeared on the road in front of her. She managed to miss the first one but struck the second one as it headed across the road from her left (“the 2017 accident”).
35The horses belonged to the property owner, Wayne Whale. His insurer ended up paying for the damage to her vehicle, which amounted to just over $7,000.
Post-accident symptoms and treatment
36On 6 September 2017, her gp Dr Joyce noted:
“Hit a horse few days ago
…
Pain R shoulder
…
No bruising
No deformityROM: full but painful++.”
37She was not 100 per cent certain there was no bruising in her right shoulder when she first saw her GP after this accident.[19]
[19] T17
38On 19 September 2017, Dr Joyce, noted:
“Has been working-light duties
Shoulder still painful and L knee
…
ROM. full but painful
L knee-no swelling
ROM. Full
No instability.Some anxiety after accident.”
39There were a series of x-rays in September 2017 at Bendigo Radiology, including brain, cervical spine, chest, abdomen and pelvis (CT scan). There was also an MRI scan of her left knee in October 2017.
40On 4 October 2017, Dr Robey Joyce noted:
“R shoulder painful + at night
L knee also sore
Can still do light duties
…
R shoulder ROM. Full but painful
+ impingementFor US.”
41On 12 October 2017, Dr Joyce noted he had discussed ultrasound:
“No tears
Discussed options
Not keen on needle yet
…Knee improving.”
42On 20 October 2017, Dr Ford noted:
“2 MCAs in 13 months – injured right knee in the first
2nd in August this year – left knee, right shoulder and headaches
Shoulder injections recommended by Robey J – I note bursitis on USRe left knee [pain - for MRI.”
43The plaintiff did not have the shoulder injection suggested by Dr Joyce in October because “[I] wanted to know why it was sore”.[20] They were giving her an injection to “take the inflammatory [sic] away”, but she wanted to know why, “and they couldn’t tell [her]. [She] couldn’t wear a t-shirt, it hurt.”[21]
[20] T19
[21] T20
44She was disinclined to have shoulder surgery after the 2017 accident due to the difficulty she experienced following the 2016 arthroscope of her right knee.[22]
[22]T10-11
45The plaintiff suffered an aggravation of right knee pain and also pain in her left knee, right shoulder, and back in the 2017 accident.
46She ultimately had ultrasound of her right shoulder on 12 October 2017, and two weeks later, she had an MRI of her left knee which revealed a complex tear.
47Because of bilateral knee pain – the right worse than the left – she went back to Mr Cunningham on 26 February 2018. He felt she was not a candidate for surgery at that stage but advised she may require an arthroscopy if the tear in her left knee became symptomatic. However, she wanted to avoid further surgery at all costs due to the difficulties she experienced following her earlier right knee arthroscopy.
48While Mr Cunninham noted the plaintiff presented on that occasion with “increasing” right shoulder symptoms, she denied that she had had right shoulder issues before the 2017 accident.[23]
[23] T9
49Having been told that Mr Cunningham wrote to her GP six months after the 2017 accident, advising it would certainly be worthwhile for her to attend physiotherapy to work on muscle building in both knees and also to work on strengthening of her right shoulder, she agreed she was given that advice.[24] Further, she agreed Mr Cunningham also told her he could foresee she may require a left knee arthroscopy if the symptoms warranted it.[25]
[24]T20
[25] T21
50She could not remember specifically that Mr Cunningham told her he predicted her shoulder pain would resolve with physiotherapy; she could remember he wanted her to do physiotherapy. She could definitely recall him being pretty positive about the prospects for physiotherapy. She agreed there was no doubt if she was in significant pain and limitations in her right shoulder she would take that advice onboard.[26]
[26] T21
51She could not remember how many times she had physiotherapy, but “they ended up recommending [she] go to the gym”. She did not seem to make much progress with physiotherapy. She went to the 24/7 Gym for a bit, but she was just too self-conscious about people watching her at the gym, so she just started walking.[27]
[27] T22
52When told her physiotherapist had reported that there was not a chance to follow up given the plaintiff did not attend another session, she explained “that come [sic] down to finance”.[28]
[28] T23
53She rejected the proposition that if her pain was anything like she said it was on the back of Mr Cunningham’s positive approach with respect to the prospects of physiotherapy, she would have done everything to get physiotherapy “not over my children, no”. She denied that she did not continue physiotherapy because her pain was not debilitating at all during 2018 or that she had a real improvement in the early months after the accident. She denied she had any improvement in terms of pain or movement in her right shoulder.[29]
[29] T23
54She could not remember her right shoulder symptoms settled partially over three or four months, as Dr Epstein recorded.[30]
[30] T25
55The TAC paid for the first two physiotherapy visits, and she had to pay for the rest. While she was working more hours than before the 2017 accident, she could not afford treatment at that time. She could not remember the physiotherapist being optimistic she had a fair prognosis to recover fully.[31]
[31] T24
56Further physiotherapy came down to finance. She had four children, all in high school, and she did not have the money to afford treatment; “Her kids come first.” If she took money away from the household it was taking food out of their mouths.[32]
[32] T48
57The plaintiff was further crossed-examined after the defendant produced a note of a telephone conversation between her and Kirsty Daniels from the TAC on 11 May 2018. That note read:
“Contact call to the client to see how things were going. Client doing really well. She is working and EMP is supportive … Will complete intensive physiotherapy for a six-week period and then go back and see specialist.”[33]
[33] T54
58The note also said that if the specialist wanted to recommend hydrotherapy it would be approved by the TAC. The plaintiff could not remember that. She did have the myTAC app now, but could not remember if she had it back then.[34]
[34] T55
59Having seen this note, she accepted the TAC were prepared to pay for her physiotherapy, but denied her election not to continue that treatment had nothing to do with her finances. She was told by the physiotherapist’s receptionist she had to pay. She had no reason to disbelieve what the receptionist told her. She did not chase up the TAC to see whether that was true.[35]
[35] T56
60While the TAC had paid for two physiotherapy visits, it had not paid for medication.[36] The TAC is not paying for her GP or medication now. It also paid for her attendances on Dr Arogundade, Dr Hogg, and Ms O’Toole.[37]
[36] T57
[37] T58
61She had deposed in her first affidavit that she was having physiotherapy for a period, but stopped as it was not helping. She also attended the gym for exercise.
62On 12 July 2018, she had an MRI scan of her right shoulder.
2018 motor vehicle accident
63The plaintiff was involved in a further motor vehicle accident on 25 July 2018, in which she aggravated her right knee, although the aggravation subsided after about a couple of weeks or so.
64At that time, she was driving her work car from Harrow to Coleraine and attempted to swerve in order to miss a kangaroo on the road, ending up on the side of the road and stopping at a tree. Her car was not salvageable, but she did not hit anything.
65Her employer insisted that she attend the Hamilton Base Hospital after this accident. She thought she ended up going there after a few hours, although she thought it was pointless. She agreed she complained of right knee pain at the Hospital.[38]
[38] T14
66On 2 August 2018, she saw Dr Robertson at Hamilton Medical Group complaining of right knee soreness which was improving. It was also noted the plaintiff advised she was unable to even imagine driving again.
67The plaintiff agreed she told Mr Westh in March 2019 her right knee was clicking and aching if doing too much walking and she was careful going upstairs. Her knee ached every day, but she was not aware of any restricted movement. There was no locking, but her knee could give way; she could not do squatting, and lifting was restricted.[39]
[39] T15
Pain
68The plaintiff continues to suffer ongoing right shoulder pain. It is intermittent and particularly noticeable after activity when her shoulder tends to ache and feel weak. On occasion, she wakes with a feeling of coldness in her right hand, and intense pins and needles, and she has to use her left hand to lift her right hand.
69The pins and needles and coldness are related to her right shoulder, in that they go down from her shoulder to her arms with a burning sensation which goes away if she relieves the pressure on her shoulder.[40]
[40] T51
70While the plaintiff told Dr Menz on examination in August this year her right shoulder pain was 1/10, he had asked her how was she feeling while she was sitting there doing nothing. She even told him, when she was filling out the form, her arm was hurting.[41]
[41] T46
71While Dr Menz seemed polite and nice at the start of the examination, he upset her when he went through her medical records and nearly had her convinced she had been admitted to the Royal Melbourne Hospital.[42]
[42] T46
72She did tell Dr Hogg in January this year she had “a little bit of pain,” and nothing she could not manage in terms of her right shoulder.[43] This was after they had changed all the medication and it made a world of difference.[44] Because she had an understanding of what was going on, she found it easier to deal with. It did not get rid of the pain completely. She continues to have shoulder pain.[45]
[43] T38
[44] T45
[45] T45, T49
73Her right knee can click of occasions. There is a painful click occurring about once each couple of weeks. It is most noticeable in the colder weather. There is also minor swelling in her right knee.
74Her right knee aches when she drives or walks for more than twenty minutes and still interferes with her ability to engage in the sporting activities she did before the 2016 accident. Mr Cunningham had told her that there was a prospect of developing osteoarthritis.[46]
[46] T17
75She also continues to experience intermittent left knee pain. She has trouble getting in and out of a car. She experiences exacerbations of left knee pain on average about once every couple of weeks. She feels as though there is something becoming stuck within her left knee. These episodes of increased pain can last for up to three to four days at a time. She also suffers some minor swelling in the left knee.
76She experiences a feeling of instability in both her knees, particularly when she gets up and down from trucks at work or uses stairs at home. Her knee aches when she drives to work, or if she walks for more than about 20 minutes.
Sleep
77Because of her pain, particularly in her right shoulder, her ability to get a good night's sleep had been affected. She found it hard sleeping on her right-hand side and if she rolled over onto her right shoulder during the night, the pain tended to wake her up.
78In cross-examination, she was taken back through the GP’s records to 2014. She accepted Avanza was prescribed that year, but she was still waking with panic attacks. She denied stress was affecting her ability to sleep well in 2016, but agreed she had a lot of stress around that time.[47] She agreed knee pain was keeping her up at night after the 2016 accident. That pain continues to wake her up from time to time.[48]
[47] T39
[48]T40
79Her sleep had been disturbed by marital stress in 2014.[49] She continues to get interrupted sleep, because her shoulder is painful – it will wake her up, and she has to move to take the pressure off it.[50]
[49] T50
[50]T51
Driving
80Because of the pain in her knees, driving for extended periods (say, more than about an hour) increased the pain significantly. Therefore, she invariably relied on cruise control. Otherwise, she generally pulled over after about half an hour or so behind the wheel.
Recreation and family activities
81The injury[51] had also affected her recreational activities. She used to enjoy playing darts in competition in Hamilton on a weekly basis, and thought she was pretty good at it. She now only played darts if she had to fill in for someone, and she was nowhere near as good as she used to be. Playing darts involves not just playing one game, but a series of elimination games which would simply be too difficult for her because of her right shoulder injury.
[51] Not specified
82Before the 2017 accident, she regularly took the kids to the pool. She had not tried swimming since the accident. She also used to shoot hoops with her daughters, but had not tried that since the accident.
83She has not been able to be involved with her daughter’s sporting activities due to her right shoulder, and to a lesser extent her knees. One of her daughters plays football and the other plays netball. She also missed out on participating in the family football day with her daughter due again to her right shoulder, and to a lesser extent her knees.
84She also missed out on other activities last year, like attending the Christmas function held at the park in Hamilton. Ordinarily, she would have gone on the jumping castle and bouncing slide with her nephews and nieces, but she certainly could no longer do that sort of thing particularly because of her right shoulder injury, and to a lesser extent the problem with her knees.
Domestic activities
85As August 2023, domestic chores such as hanging out the washing were difficult because of her right shoulder problem, and more often than not now she relied on a dryer. She found changing the bed linen difficult because of her right shoulder pain and either her husband or one of her daughters did this for her.
86Her ability to do domestic chores such as such as vacuuming, sweeping and washing the floors was restricted and again, either her husband or one of her daughters did these jobs for her. She found it hard lifting heavy pots and pans because of her right shoulder injury, and it was difficult for her to do the dishes because of the pain in her knees. Generally, her husband, Paul, stacked the dishes into the dishwasher for her.
87Using the lawnmower increased right shoulder pain due to the vibrations, and she found her knees were particularly painful after attempting to mow the lawns. She has not attempted mowing the lawns since swearing her first affidavit.
88If she simply sat on the couch reading and resting on her shoulder, the pain increased.
89Fortunately, her husband continues to do a lot of the housework for her such as the vacuuming, sweeping, and washing floors. Performing domestic chores gives rise to significant pain in her right shoulder and a feeling of her right arm going dead. She has difficulty around the home reaching up into high shelves and if she does need something up high, her husband will retrieve it for her.
90She finds even simple tasks such as doing her hair difficult because of her right shoulder injury. She dreads trying to do it every morning and she is completely over it. She is about ready to cut off all her hair and shave her head, that’s how bad it can be.
91She also needs to be mindful when she is pulling on a jumper and when she is getting in and out of a car. Her husband has a four-wheel drive and her normal instinct is to reach up and grab onto the ‘oh shit’ bar to hoist herself, but because of her right shoulder problem, she needs to use her left hand instead.
Medication
92As at August 2023, the plaintiff relied on a number of medications to help deal with the pain. She took Panadeine Forte (eight per day) when performing security work for increased pain in her knees. She also took Tramadol daily.
93For the last four years she has been taking Palexia morning and night. The dosage was reduced from 100mg to 50mg twice a day following the pain management program with Dr Hogg. She also takes Panadeine Forte as needed and Meloxicam, an anti-inflammatory, every night.
94For pain and anxiety, she takes Duloxetine 60mg twice a day and Clonidine 50mg three times a day. She will take Diazepam for anxiety related to driving, for example, if she has to drive to Melbourne.
95In 2007, when she separated from her ex, she thought she was experiencing asthma attacks, but they turned out to be panic attacks and Diazepam was prescribed.
96She had been taking Tramadol for headaches for a very long time. Following the 2016 accident, she was also prescribed another strong painkiller, Codalgin Forte.[52]
[52] T43
97She agreed she had had anxiety for a while and was frequently on Zoloft long prior to the 2017 accident.[53] She agreed she was complaining of waking with panic attacks and being prescribed Avanza in 2014.[54]
[53] T38
[54]T39
98She did not think her “normal” GPs were concerned she was addicted to medication. She could not remember any such issue in February 2014 noted by a GP who was not her regular doctor. She did not remember in March 2019, becoming agitated when a doctor declined her request for some opioids.[55]
[55] T44
Recent treaters
99There has been a gradual deterioration in her symptoms particularly her right shoulder since swearing her first affidavit.
100She was referred a pain specialist Malcolm Hogg in June 2023. She saw him twice – on 26 September 2023 and 12 January 2024. Under his supervision, she attended a pain management program, which is ongoing through her local GP, Dr Lisa Walker, at Hamilton Medical Group. This included being referred for nerve conduction studies of her right arm, which may have been performed by neurologist, Dr Michael McVeigh, although she could not be sure. Lots of needles were stuck into her, and it was a horrible experience.
101She answered examiners questions in an honest manner.[56] Dr Hogg accurately reported what she told him in September 2023 and January this year.[57]
[56] T37
[57]T38
102The plaintiff also had a mental health assessment with Complex Care psychologist, Rita O’Toole from The Royal Melbourne Hospital, on Zoom in September 2023.[58]
[58] T37
103Ms O’Toole had correctly recorded what the plaintiff told her about her pain “on that day.” On that day, her predominant pain was in her knee. She agreed she was not then complaining of shoulder pain, but disagreed it was because it was not a real feature in her makeup these days. She agreed the bigger problem is her painful knees, but disagreed the embarrassment she received from limping and the interference that caused her was by far her greatest problem.[59]
[59] T28
104She is aware that she has been diagnosed with PTSD. Her medication has been changed to accommodate that diagnosis.[60]
[60]T40
105She last had contact with Ms O’Toole in March 2024 via text. This related to her applying for a local job as an administrative assistant/receptionist as she was considering giving up work for R & M for Bega in Koroit due to the 1-hour travel there and back each day. In this regard both her right shoulder on its own and left knee on its own makes the trip difficult. Even though she had an interview for the job, the job was given to someone else with more experience.
106She was also referred to Mr Arogundade, orthopaedic surgeon whom she saw on 6 July 2023. He organised an MRI scan of her right shoulder later that month. She did not have a review with him after the scan because at that stage she was in the pain management program.
107She denied she saw the orthopaedic surgeon in part because of a suggestion by a solicitor. The surgeon concentrated on her shoulder. She did not speak to him about the MRI findings.[61]
[61] T26
108She is not currently having any hands-on treatment, although she does walk for exercise.
Work
109As at the said date, the plaintiff was filling in at the Warrnambool Repco store, working full time. Prior to this, she worked at the Hamilton Repco store every second weekend for four hours on both days. She also regularly filled in when needed.
110After the 2017 accident, she had three weeks off work.[62]
[62] T18
111In 2018, the plaintiff commenced work as a sales representative for Repco. This job came up due to a lengthy illness suffered by the usual rep. She was offered full-time hours but refused, because she could not cope with the driving and lifting parts on a full-time basis. Repco offered her half the job, which she accepted. She did the job for about approximately twelve months.
112She was again offered the position full time, but again refused as she found that getting in and out of the car when doing deliveries aggravated the pain in both her knees, and lifting car parts tended to aggravate the pain in her right shoulder. She had also been a nervous driver since the 2017 accident and did not want to be driving on the open road any more than she had to.
113As at August 2023,[63] she was doing security work for R & M at Bega in Koroit performing administrative tasks. She worked full time, five days per week, on afternoon and night shifts. The job involved standing and climbing up and down a step ladder to take drivers temperatures.
[63]First affidavit sworn 10 August 2023
114The plaintiff continues to work as a sales assistant for Repco in Hamilton, eight hours per fortnight, Saturdays 9.00am to 1.00pm and Sundays 10.00am to 3.00pm every second weekend. She struggles if she has to carry heavy items such as containers of oil or parts such as rotors. By the end of the day, she experiences increased pain in her right shoulder going down to her right elbow. She often asks the boys to grab heavier stuff, especially if it is located up high on shelves.
115Repco know about her shoulder problem. If she cannot do a job, she does not do it.[64]
[64]T51
116The work with R&M is relatively light; she is basically sitting down and signing people in at Bega. From time to time, she is required to perform other security work, such as attending the Folk Festival in Port Fairy, although she is supplied with a golf buggy to drive around in.
117At Bega, she still has to climb onto trucks, up to 20 times a shift.[65] Doing so tended to aggravate the pain in both knees and her shoulder.
[65] T33-34
118More recently, she has been working at Hamilton Base Hospital as R & M have picked up a three-month trial contract there. This is a huge blessing for her as it means she currently does not have to drive to Koroit and back each day for work. Having said that, if R & M does not end up getting the contract with the Hospital, she will probably give up the Bega work in Koroit.
119At the Hospital, she is performing in-house security and nurse attendant work, acting as a buffer between nurses and drug affected patients. She assists with cleaning up a mess, running bloods et cetera. She works full time 7.00am to 3.00pm each day, moving patients and getting involved in security incidents.[66]
[66] T35
120She does have difficulties with certain tasks particularly because of her right shoulder pain, for example bed moving and pushing patients in wheelchairs due to lack of strength in her right arm. Her arm will ache and tire very quickly, and she therefore tries to avoid such tasks if possible.
121She really enjoys her work; the people are absolutely lovely at the Hospital.[67] They let her go/leave work if she has an appointment or family issues. When there is a code grey, which is violence against nurses, she will decide whether the call is made, but then six other people respond, and they come with her and make it easier. The people are fantastic. Same as at the pub:[68] if she sees something going on she does not throw herself in the middle of anything; she goes and finds one of the boys to deal with it – “The job is not all strength, it is personality.”[69]
[67] T50
[68] Security work at Kellys; T32
[69] T51
122Her duties at the Hospital are pretty varied, from pushing a wheelchair, to greeting clients, to dealing with security episodes. She agreed she had successfully done the work with trucks at Bega in the watchhouse five days a week.[70]
[70] T44
123She accepted her ability to do all of those jobs indicated a real ability with respect of the functioning of her right arm and that she could do a lot of things. She rejected the proposition she was exaggerating her problems with housework and doing her hair and that that was not a true reflection of her abilities, given her level of activity at work.[71]
Income[72]
[71] T45
[72]See Annexure 1
124In the 2016/2017 financial year, the plaintiff earned $13,000 at Repco, $7,000 from RND McKenzie and $12,000 from Centrelink.[73]
[73] T30
125She agreed that since then, her income was essentially on a high ward trajectory heading upwards in the large part, with $76,000 obviously paid to her because of long hours currently worked for R & M.[74]
[74] T31
126She earned more with R & M in 2022-23 because she was paid out on her then contract with them. She earned slightly more with Repco in 2023-24 as she was working a bit more for them while she was on holidays with R & M.
Plaintiff’s medical evidence
Treaters
Hamilton Medical Group
127Dr Ford from Hamilton Medical Group reported to the plaintiff’s solicitors in July 2019. In his report, he summarised relevant attendances at his practice from 30 August 2016.
128According to the clinical notes, the plaintiff’s recovery from the arthroscope was reasonably good and little was then recorded in the notes until the next accident when she hit a horse on the road.
129Dr Ford noted the plaintiff had pushed herself to work in multiple casual jobs and lived in pain as a result of the accidents and needed regular Panadeine Forte and Tramadol.
130At that stage, he thought the plaintiff was fit for more sedentary work, up to 20 hours per week.
131In his most recent report dated May 2023, Dr Ford noted that the plaintiff continued to suffer from right shoulder pain and left knee pain and would probably need surgery on both of these joints in years to come.
132In the meantime, she managed with ongoing analgesia, which enabled her to continue work as a security person in crowd control. Her prognosis was guarded.
Mr Roderick Cunningham, orthopaedic surgeon
133In February 2018, Mr Cunningham wrote to the plaintiff’s GP thanking him for referring the plaintiff back again, last having seen her in 2016.
134Since that time, the plaintiff had had problems with both knees and her right shoulder, noting the 2017 accident, following which she had persistent discomfort in her right shoulder.
135On examination of both knees, there was a full range of movement. There was a full range of motion in the right shoulder with no muscle wasting and a mildly positive impingement test in adduction and no real loss of strength.
136He noted, interestingly, the plaintiff volunteered she had been doing a large amount of security work over the Christmas period in caravan parks around Portland and other areas, and as a result felt the pain in both knees had improved enormously.
137He thought it would certainly be worthwhile for the plaintiff to have physiotherapy to work on strengthening her right shoulder, in particular external rotation, which should help her reduce her subacromial bursitis. He recommended she start physiotherapy, noting she had a referral.
138Mr Cunningham prepared a medico-legal report for the plaintiff’s solicitors in May 2018.
139He confirmed after the 2016 accident the plaintiff was complaining of bruising and discomfort around both shoulders, and also severe right knee pain. An arthroscopy was carried out on 6 December 2016 where the tear in the medial meniscus was found and resected.
140The plaintiff was next seen on 26 February 2018 having been involved in the 2017 accident, as a result of which she indicated increasing problems with her knees and right shoulder.
141On examination, she had a full range of motion in the right shoulder with no muscle wasting and a mildly positive impingement in adduction, there being no loss of strength
142Having not seen the plaintiff since February 2018, her current status was unknown. He could foresee she may require arthroscopy of the left knee if the tear of the medial meniscus became symptomatic. He predicted that her shoulder pain would resolve with physiotherapy.
Mr Tryzah Sebastion
143Mr Sebastion from Physio Freedom reported in September 2018. It appears he first saw the plaintiff in around May 2018.
144He diagnosed right shoulder impingement, general deconditioning resulting in muscle imbalance along the upper and lower back, and left knee cartilage injury.
145The plaintiff had made little progress after two physiotherapy sessions, with limiting factors such as general body ache and general deconditioning.
146The plaintiff had had four physiotherapy sessions following the earlier 2016 accident.
147A swim/gym membership had been organised for the plaintiff after the 2016 accident and the same program had been suggested since she was last seen following the 2017 accident. However, there was not a chance to follow this up given she did not attend another physiotherapy session.
148Considering the timeframe from the 2017 accident, presenting symptoms and compliance with physiotherapy, the plaintiff had a fair prognosis to recover fully from her injuries.
Investigations
Ultrasound and x-ray of right shoulder, Bendigo Radiology, 11 November 2015
149The clinical note on the x-ray report read “constant right shoulder pain one week post injury”. The clinical note on the ultrasound report was in similar terms.
150The x-ray was reported to show no fracture.
151Following the right shoulder ultrasound, it was reported the subacromial bursa was mildly thickened with partial abduction at 20 degrees with bursal bunching. There was minor subacromial bursitis with impingement, minor supraspinatus tendinosis and minor long head of biceps tenosynovitis.
Ultrasound right shoulder, 12 October 2017
152The clinical note read “Injury four weeks ago. Xray normal.” It was reported no tendon abnormality identified. Subacromial/subdeltoid bursitis with bunching on abduction.
MRI scan right shoulder, 18 July 2018
153The clinical indications were “Ongoing headache and neck pain since motor car accident. Right shoulder pain. Worsening sciatica.” It was reported there was a displaced tear of the anterior superior labrum and subacromial bursitis.[75]
[75]Dr Ford’s 1 July 2018 note sets out MRI arranged for right knee, not right shoulder
MRI scan right shoulder, 17 July 2023
154The clinical details were “Chronic disabling right shoulder pain. Previous MVA. Cuff tear? Muscle atrophy?”. It was concluded there was mild tendinosis of the supraspinatus, infraspinatus and subscapularis tendons with no associated tears. No muscle atrophy was seen.
Medico-legal
Dr Michael Epstein, psychiatrist
155The plaintiff was seen by Dr Epstein in March 2019. She told him of the 2016 and 2017 accidents.
156The 2017 accident left the plaintiff with more widespread pain, particularly involving her neck, right shoulder, lower back, and some slight radiation into her right hip, and she had developed more pain in her right than her left knee.
157He noted the plaintiff’s right shoulder symptoms had settled partially over three or four months.
158The history was of only right knee pain in the 2016 accident.
159As a consequence of ongoing pain, discomfort, and disability, the plaintiff had developed a mild chronic Adjustment Disorder with Depressed Mood.
Mr Roger Westh, orthopaedic surgeon
160Mr Westh examined the plaintiff on behalf of both parties in March 2019 for the purposes an AMA assessment.
161The plaintiff then said her main trouble was ongoing pain in her right shoulder, with difficulty sleeping on her right side.
162The plaintiff complained of clicking and aching in her right knee if she did too much walking. In her left knee, she described more aching compared to the right. Overall, her shoulder was more troublesome than her knees.
163He did not have a history of any right shoulder injury in the 2016 accident, but there was a soft-tissue injury to the right shoulder which resulted in subacromial bursitis and impingement in the 2017 accident.
Mr Garry Grossbard, orthopaedic surgeon
164Mr Grossbard first saw the plaintiff in August 2023.
165The plaintiff told him that she was shaken following the 2016 accident, but after some hours, noted a feeling of stiffness across her shoulders and pain in her right knee, for which she subsequently underwent an arthroscopic examination.
166As a result of the 2017 accident, the plaintiff claimed injuries to her right shoulder, left knee, and aggravation of her right knee injury.
167The plaintiff’s knees were initially investigated, and about two months later, a right shoulder ultrasound revealed the presence of a bursitis and tendonitis. An MRI scan in 2018 confirmed there had been a tear of the labrum within the right shoulder and a medial meniscus tear in the left knee. Analgesia was suggested, but a referral to a specialist regarding the shoulder was not undertaken.
168The plaintiff’s GP suggested a corticosteroid injection, but that was not undertaken. Physiotherapy was prescribed for the knee. The plaintiff undertook gym work until COVID.
169The plaintiff reported a gradual deterioration of her right shoulder and eventually saw a specialist in 2023. She had recently had an MRI scan but had not been reviewed with the scan. A further assessment of the knee was undertaken but no other treatment instituted.
170The plaintiff told him she spent 95 per cent of her time undertaking security work and only 5 per cent with Repco.
171She was then taking up to eight Panadeine Forte each day and Palexia each night, and not having physiotherapy.
172No further decision had been made as to the further treatment of the plaintiff’s right shoulder or left knee, but she indicated she had undertaken a course of treatment recommended by a specialist.
173The plaintiff described right shoulder pain as intermittent and present about 40 per cent of the time, tending to occur with activity, particularly heavy lifting. The pain started with a sharp stabbing pain which settled down to a burning ache over several hours.
174There was pain in the left knee, particularly with twisting, and mild swelling within the knee, particularly noticeable after activity. The right knee was not too troublesome, but the plaintiff needed to be cautious with the knee, particularly if she moved awkwardly.
175Prior to the 2017 accident, the plaintiff was involved in netball, basketball and darts. She had not returned to those activities, and found throwing darts painful.[76]
[76]The plaintiff did not manage to return to basketball or netball after the 2016 accident knee injury – second affidavit
176On examination, there was no obvious wasting of the shoulder muscles.[77]
[77] The plaintiff agreed there was no muscle wasting; T25
177The 2018 MRI scan of the right shoulder confirmed a tear of the anterior and superior aspects of the glenoid labrum with associated subacromial bursitis.
178From the 2017 accident, the plaintiff had suffered an injury to her right shoulder, with evidence of a labral tear on the right side, but the global loss of shoulder motion would suggest that had been complicated by the development of capsulitis which was now partly resolved.
179The opinion of a shoulder surgeon would be reasonable in this situation. There was an argument for considering a repair of the labral injury, although any surgery may cause an exacerbation of the associated capsulitis. However, the plaintiff was in the process of seeking a further opinion, thus the condition was not stable.
180The left knee, which was now exhibiting mechanical symptoms of locking and swelling, may be amenable to arthroscopic examination and meniscus debridement. The right knee had been made a little bit more symptomatic after the 2017 accident, with appropriate management being a simple exercise program, noting the plaintiff had felt an improvement since she had been walking.
181It was pointless, at that stage, to discuss the plaintiff’s work capacity or impairment until the situation had stabilised.
182There was a re-examination in June 2024.
183Since last seen, the plaintiff had attended a pain management course under Dr Hogg using Telehealth. She told him the main area of concern related to her psychological injuries, which had been diagnosed as a PTSD and anxiety. She also saw a psychologist about once a fortnight.
184The plaintiff advised that her right shoulder is painful anteriorly with intermittent pain, but particularly noticeable after activity, when the shoulder tends to ache and feel weak. She occasionally wakes at night with shoulder pain and a feeling of coldness in her right hand. This pain is relatively short lived.
185Intermittent left knee pain continued. The right knee also clicked. The swelling was minor. There was a feeling of instability on both knees when she went up and down from trucks or used stairs at home.
186At that stage, the plaintiff had not consulted with a surgeon specialising in shoulder injuries and that there was concern about her psychological status, which the pain management specialist felt needed to be sorted out before any surgery was considered.
187Given the plaintiff’s inclination not to proceed with surgery for either injury, he believed the situation was stable and not going to change significantly in the foreseeable future.
188The plaintiff was managing to hold onto full time work but needed to make some adjustments. She continued to have difficulty using her arm and legs to climb up onto trucks. She would benefit from continuing to work from both a physical and psychological perspective, however she needed to make significant adjustments to her lifestyle and had become restricted in her ability to undertake pre-injury activities.
189Dr Grossbard provided a supplementary report in September 2024 having been asked to comment on the 2015 trampoline incident. He noted it was interesting the plaintiff denied any recollection of this incident.
190Assuming the veracity of a lack of recollection it would be reasonable to suggest the plaintiff’s shoulder was asymptomatic in the two years between the trampoline incident and the 2017 accident.
191The 2015 radiological studies suggested there was an element of biceps tenosynovitis, which is often associated with capsulitis.
192Based on the two years of absence of symptoms prior to the 2017 accident, it is reasonable to presume there had been a further injury to the shoulder in the accident. Whether or not the lateral tear was present prior to the 2017 accident is not able to be determined in the absence of MRI scanning following the 2015 incident.
193Irrespectively, the right shoulder is alleged to have been asymptomatic prior to the 2017 accident and it is therefore reasonable to suggest the 2017 accident has been a significant aggravating factor, if not the entire cause, of the current clinical presentation with respect to the shoulder.
Defendant’s medical evidence
Treaters
Mr Roderick Cunningham, orthopaedic surgeon
194Mr Cunningham saw the plaintiff in November 2016 on referral from Dr Joyce following the 2016 accident.
195The plaintiff had bruising and discomfort around both shoulders after that accident and noted severe right knee pain one day later, with persistent medial pain and a feeling of instability thereafter.
196On examination, the plaintiff walked with a heavy limp. Her current situation was consistent with her knee injury, namely what was shown on an MRI scan was very clearly significant disruption of the medial meniscus and a small Baker’s cyst. He advised he would write to TAC seeking funding for an arthroscopy.[78]
[78]Letter to the TAC dated 9 November 2016
197The plaintiff was reviewed on 20 December 2016 and although she declared she had great improvement following arthroscopy and partial medial meniscectomy, she was walking with a tremendous limp which warranted referral to physiotherapy.
Hamilton Hospital
198The plaintiff attended Western District Hamilton Hospital on 25 July 2018 after the 2018 accident.
199It was then noted that the plaintiff had been driving at 95 kilometres per hour and was the sole occupant in the car, which swerved to avoid an animal on the road, crossed onto the gravel, the car spun 360 degrees and was lodged between two cars. The plaintiff complained of right knee pain in Emergency. An x-ray of the right knee was carried out which showed no abnormality.
Rita O’Toole, psychologist
200A mental health assessment was conducted by Complex Care psychologist, Rita O’Toole, at the Royal Melbourne Hospital on 7 September 2023.
201The reason for the referral was ongoing pain, bilateral knee pain and right shoulder pain.
202At the attendance, the plaintiff limped slightly protecting her right knee. She reported pain on this day to be in both knees and they felt stiff and tight with an intensity level of 4/10. The plaintiff worried about her limp and felt that it brought with it a stigma. She felt less able to do regular activities because of the pain.
203Her impression was the plaintiff presented as having the complexity of her over activity/under activity in relation to her work/life balance and the possible mutual maintenance of chronic pain and PTSD.
204The plaintiff had made an appointment to engage in pain education sessions.
Dr Hogg
205Dr Hogg reviewed the plaintiff on Telehealth at The Royal Melbourne Hospital on 26 September 2023.
206The diagnosis was adjustment reaction with anxiety and depression, PTSD, back pain, and shoulder pain.
207There was team discussion regarding the psychological assessment. The plan was for psychology input and a change in medication.
208The plaintiff was then taking Tapentadol SR at night, which helped with sleep and shoulder pain.
209When seen on 12 January 2024, the plaintiff was noted to be “going okay, better. Hit a kangaroo recently with pain/anxiety flare now settled. Otherwise doing well new job interview, receptionist, feels happy. Less shoulder sensation, right burning now gone. “A little bit of pain, nothing I can’t manage”. Hb doing more, re housework shopping…Sleeping still disjointed but getting back to sleep easier.”
Medico-legal
Dr Anthony Menz, orthopaedic surgeon
210The plaintiff saw Dr Menz in August 2024 in relation to her 2017 accident injury.
211The plaintiff told him she rated her right shoulder pain as 1/10, her bilateral knee pain as 0/10.[79]
[79] T38, confirmed by the plaintiff
212She was not having any treatment. She was taking Panadeine Forte, Meloxicam, Diazepam and Tapentadol.
213On examination, there was some diminished range of movement in the right shoulder joint.
214The pathology on MRI scanning of the right shoulder was minimal, if anything, which would indicate why Mr Arogundade, who was a shoulder surgeon, referred the plaintiff to a pain clinic.
215Having summarised the reports of the May 2015 ultrasound of the right shoulder, the ultrasound of the right shoulder of 12 October 2017, the MRI scan of the right shoulder on 12 July 2018 and the MRI scan of the right shoulder on 17 July 2023, he concluded the plaintiff suffered mild soft-tissue injuries to her right shoulder in the 2017 accident.
216The plaintiff also injured both knees in the accident. She suffered no pain at all in the right knee which functioned normally.
217While the plaintiff said she could not play various sports as a result of her injuries, that did not make sense, as she had stated there was eventually no pain in any of the joints. This does not correlate with her inability to play these sports.
218All the injuries sustained in 2017 had resolved and did not appear to interfere with the plaintiff’s ability to work.
219Dr Grossbard’s reports did not cause him to change his view.
220Dr Grossbard said the plaintiff had not been seen by an orthopaedic surgeon; however, she was seen by Mr Cunningham in February 2018 with regard to both knees and her right shoulder. At that time, Mr Cunningham found a full range of motion in all these areas.
221Dr Arogundade referred the plaintiff to The Royal Melbourne Hospital with regard to her right shoulder and then made the assessment she did not require surgery.
Lay evidence
222Allan Turnbull, Hub store manager at Repco in Hamilton, made a statement to investigators on 8 July 2024. It was not exhibited to an affidavit.
223At the time of the 2017 accident, the plaintiff was assigned to the Repco store at Hamilton and was employed casually as a relief driver and also assisting in the store. She also was working as a security guard for R & M.
224Currently, he is not engaging the plaintiff to lift anything heavy, such as brake rotors, 20-litre drums of oil or degreaser she cannot lift.[80] She also cannot mop floors, as she complained of shoulder soreness when doing that activity and it has been a while since they had spoken about it.
[80]Currently, all female workers have a lifting limit of 20 kilograms
Overview
225The plaintiff suffered a number of injuries in the 2017 accident. However, the application proceeded only in relation to a right shoulder impairment.
226It is not disputed the plaintiff injured her right shoulder in the 2017 accident but there is differing medical opinion as to the nature of her injury.
227At its mildest, Dr Menz considered the plaintiff suffered a minor soft tissue injury which had resolved. In early 2018, Mr Cunnigham diagnosed mild subacromial bursitis which he predicted would resolve with physiotherapy. More recently, medico legal examiner Dr Grossbard thought the plaintiff had suffered a labrum tear in the 2017 accident.
228These diagnoses depend to some degree on what radiology was available to the examiner.
229The defendant submitted the most recent radiology (2023 right shoulder MRI) demonstrated very minor pathology only.
230The plaintiff relied on the 2018 MRI scan nine months after the accident which it was submitted showed a “significant level tear”, an additional finding to the bursitis shown on the 2015 MRI.[81]
[81] T86
231Dr Menz had all investigations available to him. Dr Grossbard diagnosed a labral tear based on the 2018 MRI which showed a tear, but he did not have the recent 2023 MRI where no tear was identified. Further, he did not know of the 2015 MRI until asked to provide a supplementary report. In that report, he was less confident the tear related to the 2017 accident, as there was no MRI scan in 2015. Mr Cunningham’s opinion predated the 2018 MRI scan, but he appears to have seen the 2017 ultrasound which did not show a tear.
232While there are these differing views, the consequences of any right shoulder injury, not the radiology, are determinative of seriousness, although the radiology is of relevance when considering the nature of injury.
Pre-existing
233Cross examination in relation to the plaintiff’s right shoulder condition before the 2017 accident focussed on two events: a “trampoline” incident in 2015, and a transport accident in 2016, following which there was mention in the plaintiff’s clinical notes of right shoulder pain.
234After considering all the evidence in this regard, I do not believe the plaintiff suffered any significant ongoing right shoulder pain after either event. While her GP noted right shoulder complaints up to five or six weeks after the trampoline incident, there was no ongoing treatment. Following the 2016 accident, the plaintiff was sore all over, with her right knee her major concern. She did not suffer a specific right shoulder injury and she did not require treatment for her right shoulder until after the 2017 accident.[82]
[82] T81-21
235However, what is of relevance is that the plaintiff did undergo right shoulder investigations in 2015, with the ultrasound reported to show minor subacromial bursitis with impingement, minor supraspinatus tendinosis, and minor long head of biceps tenosynovitis.
236As the defendant submitted, “there are similarities in the radiology that demand attention”.[83] Bursitis which has been found on post-2017 accident investigations was already present on the 2015 MRI.
[83] T70
Credit
237As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[84]
“… 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.”
[84](2010) 31 VR 1 at paragraph [12]
238The plaintiff’s credit was attacked by the defendant, describing her evidence as “unreliable” given her inability to recall the trampoline incident, following which investigations were carried out and an injection suggested; her failure to recall bruising to her right shoulder after the 2016 accident; and her evidence about funding for physiotherapy and the TAC note.[85]
[85]T65-66
239Counsel for the plaintiff submitted in terms of demeanour, the plaintiff “smacked of honesty, often giving answers acknowledging improvement. She did not try to diminish the effects of the knee injury. Overall, she gave evidence as a truthful witness would and should.”[86]
[86] T80
240It was submitted there was no advantage to the plaintiff in not remembering the trampoline incident. Further, long-term Tramadol cannot help her memory where there has been a lot happening in her life.[87] The plaintiff is:
“… a person whose credit should be accepted, there is no reason to disbelieve anything, she has done her best to get on with her life in pretty difficult circumstances”.[88]
[87] T80
[88] T82
241In my view, the main credit issue related to the circumstances in which the plaintiff ceased physiotherapy. She deposed that in August 2023 she ceased because that treatment was not helping her. However, the in her viva voce evidence, she maintained she stopped because funding had been ceased by the TAC after two visits.
242It became apparent, when the defendant produced a file note of a conversation between the plaintiff and one of its representatives, funding was never ceased and ongoing treatment was encouraged. I do not accept, in these circumstances, the plaintiff was advised by the physio’s receptionist that funding had been cease. It was not a matter of finances as the plaintiff emphasised. She chose not to continue with treatment although she could definitely recall Mr Cunningham being pretty positive about the prospects of recovery with physiotherapy.[89]
[89]T21
243Further, I thought the plaintiff played down the significance of her ongoing knee problems- backing away somewhat from her affidavit evidence as to their severity and impact on her life - particularly in light of her recent attendances at RMH where right knee pain was a major focus- particularly her problems with limping.
244However, in general the plaintiff did not overstate her right shoulder symptoms. She also acknowledged her significant issues with PTSD.
Pain
245In Haden Engineering v McKinnon,[90] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).
[90] (supra) at paragraph [11]
246The plaintiff has not complained of significant ongoing shoulder pain, describing it as intermittent to examiners on various occasions and also in her affidavit.
247I accept the plaintiff continues to suffer some shoulder pain as her GP reported in May last year;[91] however, on her own descriptions at various times, her pain is not continuous pain of a significant nature.
[91] T84
248She deposed to ongoing pain, which was intermittent, but particularly noticeable after activity. She also told Dr Grossbard of intermittent pain, which was present about 40 per cent of the time.[92]
[92] T76
249While the reason for referral to the RMH included right shoulder pain, there was little mention, if any, of right shoulder issues on any visit. When mentioned, the plaintiff described it as a minor issue.
250Ms O’Toole, the pain psychologist, does not speak of the plaintiff’s concern for right shoulder pain, nor does Dr Hogg, who noted in late January this year:
“Feels happy. Less shoulder sensation. Right burning, now gone. A little bit of pain, nothing I can’t manage’.”[93]
[93] T67
251The plaintiff’s description of her right shoulder pain does not speak of a debilitating effect of pain.[94]
[94] Defendant’s submission; T77
252So far as the plaintiff’s right shoulder pain is concerned, the burden of the evidence is that her pain is intermittent and that she does not suffer a continuous substantial level of pain.[95]
[95]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [48]
Treatment
253Relevant also to the assessment of the plaintiff’s pain is what she does about the pain; for example, medication, rest, and seeking medical treatment.[96]
[96] Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
254The plaintiff has had limited and conservative treatment since the 2017 accident. She remains under the care of her local GP, Dr Ford, who last reported (albeit very briefly) in May 2023. His clinical notes beyond March 2019 were not in evidence.
255Dr Ford has organised a number of right shoulder investigations. While he was prescribing analgesia in May 2023, he did not specify whether it was for her right shoulder pain or knees, or both.
256A right shoulder injection was suggested by Dr Joyce, also at Hamilton, in October 2017. The plaintiff did not have this injection as she was keen to know what was wrong with her shoulder. Of note, the injection was suggested after she was advised by that GP that there were “no tears”.
257In February 2018, the plaintiff was referred to Mr Cunnigham for both her knees and right shoulder complaint. His only advice regarding her right shoulder was to undergo physiotherapy treatment. There was no suggestion of surgery. For some reason, the plaintiff attended only two sessions, although funding was never terminated, in circumstances where she could definitely recall Mr Cunningham being pretty positive about the prospects for physiotherapy.
258In these circumstances, one explanation for the plaintiff stopping physiotherapy may be her shoulder had improved. As recorded by Ms Daniels from the TAC in her note of her telephone conversation with the plaintiff 11 May 2018, the plaintiff was doing “really well.”
259The next specialist referral was to shoulder specialist Mr Arogundade in July 2023, who organised an MRI later that month. There is no explanation by the plaintiff’s GP as to why this referral was made, nor is there any evidence of any deterioration in the plaintiff’s right shoulder condition at that time to explain the need for that investigation.
260The plaintiff said she did not see Mr Arogundade after the MRI. One would have expected him to advise the GP of his findings on examination, whether or not he sent the plaintiff for pain management as Dr Menz reported. There is no explanation why there is no report from that surgeon. In those circumstances, it can be inferred that any report would not have assisted the plaintiff’s application.
261While the reason for referral to the RMH Pain Clinic in September 2023 was “ongoing pain, bilateral knee and right shoulder pain,” right shoulder complaints do not feature on these attendances. The plaintiff’s focus was on her right knee issue and also matters relating to her mental state which had been diagnosed as PTSD.
262It is unclear from the plaintiff’s evidence what (if any) medication is now being prescribed for her right shoulder. Tramadol was being prescribed for many, many years. For the last four years the stronger drug Palexia has been prescribed, the dosage recently being halved in the pain management program. The reports from the RMH provide no detail of the current medication regime for right shoulder pain, if any.
Work
263The plaintiff had three weeks off work after the 2017 accident.[97] She then resumed unrestricted preinjury duties in both roles, with her earnings over the following years continuing to increase.
[97]T18
264On this basis, the defendant relied on the decision of the Court of Appeal in Stijepic v One Force Group Australia Pty Ltd,[98] where the Court held that:
“… in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained’.”[99]
[98] Supra at paragraph [44]
[99]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
265The defendant submitted that the plaintiff had not only retained a capacity for full employment after the 2017 accident but had a far greater capacity than in a number of years beforehand, having been on Centrelink in 2016. She is now earning in excess of $90,000 a year across three jobs, which “she is clearly good at and truly loves, particularly at the Hospital.”[100]
[100] T72
266It was submitted this is not a plaintiff just sitting around. Her work involves pushing residents and patients in wheelchairs, being involved in security incidents, and being the buffer between staff and patients.[101] She also has to clean up messes and run bloods: “This is just not a passive employment. It’s one that demonstrates a true capacity and true functioning of her dominant right arm”.[102]
[101] T72
[102]T72
267The plaintiff is also working weekends at Repco and occasional shifts at the Kelly Hotel: “This is just not a protected employment capacity, this is full time, full blown, the best capacity that the plaintiff has ever had financially”.[103]
[103]T73
268It was submitted that “the enjoyment that she derives, the clear income that she receives, the fact of the duties that she performs does not speak of a serious injury certificate in any real sense”.[104]
[104] T73
269Counsel for the plaintiff submitted the plaintiff is a person who has at all times made the best of a situation which has been made difficult in many ways. She has had the help of supportive employers and can now work fulltime without the children. She has assistance doing security work at the Hospital if she needs it. She is a woman who makes the best of her situation, she clearly wants to work and clearly needs to.[105]
[105] T88
270Further, Mr Turnbull (Repco store manager) confirmed adjustments have had to be made to the plaintiff’s duties.[106]
[106]T86
271In my view, any right shoulder impairment from which the plaintiff currently suffers has not had a significant effect on her work life. To her credit, she has been able to earn far in excess of her pre-2017 accident earnings, working longer hours in more recent years, at times more than 50 hours per week.
272As the plaintiff conceded, her ability to do all her jobs indicated a real ability with respect to her right arm.[107]
[107]T45
273Her various duties are not passive and involve some physicality: pushing wheelchairs, dealing with patients at the Hospital and getting up and down from trucks at Bega.
274There have been no formal restrictions placed on the plaintiff’s duties with Mr Turnbull from Repco, noting a 20kg lifting limit applies to all female employees.
Sleep
275While there are numerous records of sleep issues before the 2017 accident and prescription of medication in relation thereto, I accept the plaintiff suffers some sleep disturbance due to right shoulder pain. However, this is not to a significant level.
276The plaintiff reported that on occasion she wakes with right shoulder pain, as she also told Dr Grossbard. It is an occasional waking and short lived.[108]
[108] T74
277Further, Dr Hogg reported PTSD disrupts the plaintiff’s sleep.[109] The plaintiff also acknowledged her right knee pain at time affects her sleep.[110]
[109] T71
[110]T40
Housework
278While the plaintiff put a lot of emphasis on her problems with housework because of her right shoulder, I have difficulty accepting this is the true situation given her range of physical activities at work such as pushing wheelchairs, and at times working more than 50 hours a week. There was no mention of any right shoulder problems doing housework when seen at the RMH pain clinic; the plaintiff’s focus was on right knee pain.[111]
[111] T75
279While she may require help from her husband with heavier tasks involving her right shoulder, she is still able to do things around the house. Given her demonstrated work capacity, it is hard to accept she would have difficulty doing her hair and was ready to have it all cut off.[112]
[112] T75
280In terms of any interference with recreational activities due to right shoulder pain, counsel for the plaintiff submitted that although the plaintiff did not play darts competitively, she probably needed an outlet which is now denied to her.[113]
Peak [114]
[113] T89
[114] Peak Engineering & Anor v McKenzie [2014] VSCA 67 (“Peak”)
281As the plaintiff also has knee issues, back pain, and a diagnosis of PTSD, it is necessary to separate the consequences of the compensable right shoulder injury from any consequences relating to these non-compensable conditions.
282In Peak, Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
283In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[115]
[115] Peak at paragraph [1]
284Maxwell P found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and
(b) when the consequences properly referable to the compensable injury were identified, identify them as “serious”.[116]
[116] Peak at paragraph [2]
285The plaintiff still has significant right knee problems affecting a wide range of her activities both at work and at home, describing ongoing instability and pain
286As counsel for the defendant submitted the plaintiff’s right knee is still causing a limp. While there is no longer a serious injury application in relation to the right knee, the plaintiff has deposed to a clicking sensation, a feeling of the knee giving way and her right knee being the reason why she stopped basketball and other sporting activities. It was the predominant feature when she presented at the RMH.[117]
[117]T71
287Further, the plaintiff has ongoing issues with back pain. In August 2023, she deposed she was suffering ongoing back pain, worsened in cold weather.[118] While no mention was made of back pain in her most recent affidavit, Dr Hogg identified back pain when he saw the plaintiff at the RMH.[119]
[118] First affidavit sworn 10 August 2023
[119]T71
288The PTSD condition which seemed to be a focus of the recent treatment at the RMH also needed to be stripped out. The plaintiff frankly acknowledged in re-examination the effect of her mindset on pain levels.[120] Her medication was recently changed to accommodate this degeneration.[121]
[120] T71
[121]T40
289In response to these Peak issues, counsel for the plaintiff relied on the consequences the plaintiff particularly described – like housework- were all to do with her shoulders – “limits in reaching, limits in doing her hair, and the pain it causes.”[122]
[122]T91-92
290The defendant’s submission that the plaintiff overstated that was completely opposed. It was submitted there was no difficulty disentangling these consequences from issues to do with either of her knees. Further any PTSD symptoms do not stop the pain in the plaintiff’s right shoulder.[123]
[123]T92
291Taking into account all the evidence, for the reasons stated above, I am not satisfied that the consequences properly referable to any right shoulder impairment, when judged by comparison with other cases in the range of possible impairments, can be fairly described as “at least very considerable” and “more than significant or marked.”[124]
[124] See Humphries and Anor v Poljak (supra) at 140-141
292Accordingly, the application is dismissed.
ANNEXURE 1
Summary of the Plaintiff’s Taxation Returns
Financial Year Ending
Gross Payments
Total Gross Payments
2014
$3,652 (Department of Human Services)
$2,324 (Department of Human Services)
$11,103 (Department of Human Services)
$410 (G P and P K Bailey)
$3,036 (GPC Asia Pacific Pty Ltd)
$15,640 (R & D McKenzie Security Services)
$36,165
2015
$14,369 (R & D McKenzie Security Services)
$4,995 (Department of Human Services)
$7,120 (Department of Human Services)
$4,409 (GPC Asia Pacific Pty Ltd)
$30,893
2016
$28,500 (GPC Asia Pacific Pty Ltd)
$3,865 (Department of Human Services)
$2,582 (Department of Human Services)
$5,926 (R & D McKenzie Security Services)
$40,873
2017
$12,618 (Department of Human Services)
$13,510 (GPC Asia Pacific Pty Ltd)
$7,154 (R & D McKenzie Security Services)
$33,282
2018
$18,781 (GPC Asia Pacific Pty Ltd)
$20,855 (R & D McKenzie Security Services)
$7,895 (Department of Human Services)
$47,046
2019
$35,442 (GPC Asia Pacific Pty Ltd)
$7,895 (The Trustee for R & M Security Services Trust)
$43,337
2020
$23,948 (GPC Asia Pacific Pty Ltd)
$5,379 (Department of Human Services)
$32,070 (The Trustee for R & M Security Services Trust)
$61,397
2021
$6,923 (GPC Asia Pacific Pty Ltd)
$88 (Department of Human Services)
$90,692 (The Trustee for R & M Security Services Trust)
$97,703
2022
$8,846 (GPC Asia Pacific Pty Ltd)
$77,430 (The Trustee for R & M Security Services Trust)
$86,276
2023
$92,249 (The Trustee for R & M Security Services Trust)
$10,563 (GPC Asia Pacific Pty Ltd)
$102,812
2024
$76,422 (The Trustee for R & M Security Services Trust)
$13,560 (GPC Asia Pacific Pty Ltd)
$89,982
- - -
0
4
0