Anson v Transport Accident Commission
[2013] VCC 1182
•12 September 2013 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00319
| TANIA ANSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 26 and 27 August 2013 | |
DATE OF JUDGMENT: | 12 September 2013 (Melbourne) | |
CASE MAY BE CITED AS: | Anson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1182 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment of the right shoulder – causation – long term impairment
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Brown McComish |
| For the Defendant | Mr R Elliott QC with Mr J Batten | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 17 June 2006 (“the said date”).
2 Section 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”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the right shoulder.
5 The enquiry under subparagraph (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.
6 The serious injury defined by subparagraph (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: see Richards v Wylie.[1]
[1](2000) 1 VR 79
7 In 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 that “significant” or “marked”? – see Humphries & Anor v Poljak.[2]
[2][1992] 2 VR 129 at 140-1
8 The plaintiff swore two affidavits and relied upon an affidavit sworn by her husband, Geoffrey, on 23 July 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is presently aged forty six, having been born in July 1967. She is married with four children, the youngest two who are under ten.
10 The plaintiff completed Year 12 and thereafter worked in various secretarial and receptionist administrative jobs. After giving birth to her second daughter, the plaintiff did not return to paid employment.
11 In about 1999, the plaintiff and her husband bought a 223-acre farming property at Wallacedale (“the farm”), as it was always their dream to own a farm. They spent the first year renovating the farmhouse whilst living in Portland and they leased out the rest of the farm to enable them to get on their feet financially.
12 In about 2002, the plaintiff entered an agreement with her father, allowing him to agist cows on the farm, and in return, the plaintiff and her husband were allowed to keep the progeny and build up their herd.
13 They converted from beef to dairy in 2005, after undertaking a lot of research and groundwork, and hoped that that would establish a future for their family. The preliminary work in this change involved fencing, pasture improvement, laying out water pipes and installing troughs. It was hard but rewarding work and their first milk pick up was in August 2006.
14 Prior to her injury, most of the plaintiff’s time was spent looking after her family, working on the farm, involving herself in her children’s school and sporting activities.
15 Prior to the said date, the plaintiff did not suffer any significant illnesses or injuries. Fifteen years earlier, she had hurt her shoulder, but made a complete recovery. She had previously suffered migraines but they ceased after a hysterectomy in 2006. However, they started again after the subject accident.
16 Prior to the accident, the plaintiff had not suffered from any depression.
17 On the said date, the plaintiff was a passenger in a car driven by her husband when it collided with an ongoing car at high speed travelling on the wrong side of the road (“the accident”).
18 The plaintiff’s first concern after the accident was her family. They were all upset but conscious. Emergency vehicles attended the scene and the plaintiff, her husband and one of their sons was taken by ambulance to Bendigo Hospital. The plaintiff underwent investigations and was subsequently discharged.
19 The plaintiff had been treated since the accident by doctors at Hamilton Medical Group and referred to Dr Murray Grave, a musculoskeletal physician, in Warrnambool.
20 When she swore her first affidavit in May 2010, the plaintiff was then continuing to see Mr Kane Fraser, chiropractor, for treatment for her right shoulder, neck and chest pain, and she was seeing Dr Grave every four to six weeks. Her general practitioner was then Dr Joyce.
21 The plaintiff was taking an antidepressant medication, Eleva, and Neurontin daily. She was also taking a combination of over-the-counter painkillers, including Panadol Osteo, ibuprofen and Mersyndol for headaches. The plaintiff was concerned about the amount of medication she was taking and took it begrudgingly, because it was the only way she was able to numb her pain and sleep at night.
22 The plaintiff then had constant neck, shoulder and chest pain. The chest pain was intermittent and responded to chiropractic treatment; otherwise, she had nightly pain in her neck and on occasions also experienced a numbing and tingling feeling in her arms.
23 As a result of her neck and shoulder pain, the plaintiff could not get comfortable in bed and she and her husband had spent over $3,000 on a new mattress. They had also tried many different pillows but nothing seemed to help.
24 The plaintiff had difficulty with housework. Her shoulder injury, in particular, limited her ability to cut hard vegetables, open jars and bottles, peel potatoes or perform most activities above shoulder height. Those activities included hanging out the washing and inserting milking cups on cows. Even getting dressed and doing up her bra strap caused her pain.
25 The plaintiff deposed her problem was simple; she had jobs to do. She could not just sit down. Washing, mopping and cleaning of bathrooms had to be done. She managed to get through the day but at night time, she was at her worst, and she was often in bed by 7.30pm, thus limiting options to undertake family activities or physical intimacy.
26 The plaintiff continued to perform farm activities, including raising calves, milking and general farm duties. Her duties were modified as much as possible to reduce heavy lifting. The plaintiff was not as efficient as she used to be when working around the farm and was restricted by her injuries and paid the price at night when she had undertaken heavy work.
27 The plaintiff then employed sons, Jayden and Lachie, on a farm apprenticeship, doing morning and afternoon milkings from Monday to Friday and they helped out with general farming.
28 Since the accident, the plaintiff had suffered from migraine headaches which were quite disabling and during which she could not stand or tolerate noise or light and she just had to learn to leave the house to run itself until her medication kicked in.
29 The plaintiff had suffered from flashbacks and recurring nightmares for a long time after the accident. She was stressed. She was nervous in a car. She had never returned to the accident scene and had no intention of doing so. The plaintiff still had extremely bad memories of the accident and was troubled by recurring memories almost every day.
30 The plaintiff and her husband went through a difficult period after the accident, separating for about three months, as they were both stressed and anxious as a result of the accident and the financial consequences. They managed to work their way through with help from their general practitioner and psychologist. The plaintiff still had a lot of personal issues and was referred to Sue Balkin-Mitchell for counselling.
31 What troubled the plaintiff the most was that she used to be a very organised person but she now felt like she had lost her ability to cope. She had massive memory and concentration problems and had to leave notes for herself around the house. She found herself easily sidetracked and would forget what she was doing halfway through household tasks. She had previously been used to having everything in its place and she found the situation very frustrating and took it out on her family.
32 The plaintiff was also troubled because she did not care about relationships, having fallen out recently with a friend of thirty years, and she did not feel the need to patch it up. She found small talk irritating and did not seem to be able to concentrate on everyday conversation. She was not as sympathetic as she used to be.
33 The farm had then been on the market for about two years. The plaintiff took this course on medical advice. Only recently had negotiations taken place after the plaintiff and her husband agreed to reduce their asking price. The plaintiff was very upset that they would not be able to pursue their dream of owning and running their own farm as it had been a lifelong passion. She was concerned about the future, as her husband only had a limited education. The plaintiff loved farming work and its benefits of working their own hours. She would find it very hard to work in any other activity, especially because of her accident injuries.
34 The accident had affected the plaintiff’s whole life. She was less active, nervous, often moody and irritable, and had put on weight. She suffered from constant pain in her neck, shoulder and chest in particular, and struggled with many day to day activities.
35 The plaintiff swore a recent affidavit in July 2013. She continues to suffer from pain in her chest and neck and sees a general practitioner on a regular basis about once a fortnight. She has physiotherapy once a week, which she pays for herself, as the defendant ceased liability for treatment in June 2010. The plaintiff also sees a chiropractor when she has migraine headaches or chest and neck pain that are such that she has difficulty coping. This is the situation about every four to six weeks.
36 Prior to the accident, the plaintiff had migraines, which were attributed to a hormonal imbalance. After a hysterectomy in 2006 they ceased, and only returned after the accident.
37 The plaintiff continues to take painkilling and antidepressant medication, with 100-milligram Tramadol tablets, three Panadol Osteo tablets and two Nurofen tablets at night before bed. She also takes 160-milligram Cymbalta tablets in the morning, three Panadol Osteo and two Nurofen. As the day progresses, she might also take additional painkillers depending on her level of activity.
38 The plaintiff was referred to Mr Andrew Byrne, orthopaedic surgeon, following an ultrasound in February 2012, which revealed a partial tear in the supraspinatus tendon in her right shoulder.
39 Mr Byrne arranged an MRI scan which he advised confirmed right shoulder damage. He subsequently operated on 14 August 2012, performing a right shoulder arthroscopy and decompression and assessment of the rotator cuff (“the surgery”). Following the surgery, the plaintiff had her arm in a sling for about six weeks.
40 On 22 September 2012, the plaintiff experienced severe right shoulder pain when she instinctively attempted to swat what she thought was a spider on her shoulder.
41 The plaintiff saw Mr Byrne on 16 October 2012 and he advised her that he thought she might have re-injured the shoulder but that she should continue with conservative treatment.
42 Subsequently, the plaintiff developed a frozen shoulder and underwent a hydrodilatation in December 2012. That procedure was unsuccessful and she understood it ruptured the capsule. Further surgery was then required.
43 Mr Byrne operated again on 5 March 2013 in an operation which the plaintiff understands involved a decompression and capsulotomy of the right shoulder. Following that procedure, Mr Byrne referred the plaintiff for immediate physiotherapy. Since then, the plaintiff has attended Robert Webb, physiotherapist, who has helped her with a home based exercise program.
44 Notwithstanding the surgery, the plaintiff struggles with activities requiring repetitive use of her right arm or lifting it above shoulder height. She continues to try and perform most activities but has to pace herself. Cutting vegetables, changing the doona, making beds, hanging out the washing or removing a tight lid causes pain. The plaintiff has tried to arrange things in the kitchen and house generally so she can avoid overhead reaching, removing most of the overhead cupboards in the kitchen.
45 The plaintiff self treats by simply trying to avoid activities she knows will aggravate her condition. However, she cannot avoid instinctive activities such as suddenly turning to the right, which causes a sharp pain which stops her in her tracks. The plaintiff’s neck can become painful if she watches television for an extended time. It is easier to watch television in bed rather than sitting up with the family and most nights she goes to bed at 7.30pm.
46 Where possible, the plaintiff now uses her left arm, vacuuming and carrying wood with her left hand. Since the accident, she has employed a window cleaner, having, at times, attempted that activity, but she found the pain unbearable.
47 Selling the farm involved the sale of the land, plant and equipment and most things associated with the farm and it was an extremely emotional time for the plaintiff.
48 The plaintiff still has occasional flashbacks of the accident. Nightmares are not as bad, but she still has dreams. She continues to feel guilty that the accident was not avoided, had they not taken a wrong turn at her suggestion. There are days when she feels sad and depressed, partly as a result of the pain and restrictions, and partly as a result in changes in her life. She has found herself at times crying during the day spontaneously and without reason.
49 The plaintiff’s home life and confidence have suffered as a result of her injuries. She has lost confidence and has memory and concentration problems. The plaintiff is frustrated by the restrictions she faces and how she struggles to cope with many relative simple tasks. She has also become intolerant to noise and has difficulty with the noise made by her children when they are enjoying themselves, and that situation upsets her.
50 The plaintiff has also become anxious and depressed by the length of time it took doctors to find she had hurt her shoulder. The plaintiff was relieved when Mr Byrne eventually operated and found there was something wrong with her shoulder. It has been a constant source of frustration to the plaintiff that the defendant has refused to accept her shoulder injury, in particular, that it was related to the accident.
51 In examination-in-chief, the plaintiff confirmed she has physiotherapy about once a fortnight.
52 When she was younger, the plaintiff played tennis, hockey, badminton, basketball and netball competitively and socially. She also enjoyed horse riding. While her injuries did not stop her playing those sports, she has young children and she is not able to go out and play with them and is just a spectator.
53 In cross-examination, the plaintiff was taken to her comment in her 2010 affidavit that her problem was simple. She agreed she then continued to perform activities around the farm and at home. She is not as efficient as she used to be and paid the price in the evening.
54 The plaintiff explained that there were 120 dairy cattle in the herd which were milked in the morning and afternoon. The plaintiff and her husband hired someone from the time of the accident to do the milking. Initially it was a fencing contractor, then a full-time employee, and then, about five years ago, the plaintiff’s sons took over that role as part of a farming apprenticeship.
55 The plaintiff helped as much as she could but it was just a pretty tall order.[3]
[3]Transcript (“T”) 37
56 The plaintiff confirmed her husband has been running a fencing business since 1999. She helped him and did the books, an area where she had previously worked.
57 The plaintiff agreed that the hospital and ambulance notes contain no reference to her right shoulder and that at the hospital, she complained of left- sided neck pain.[4] She also agreed the ambulance report set out her main problem was discomfort in the neck. When she first saw her general practitioner on the said date, she could not recall telling him she had a sore left shoulder as a result of the seatbelt.
[4]T43
58 The plaintiff then got visibly distressed in the witness box, saying her four children were in the accident and there were a lot of things “a mother goes about before she worries about herself”.[5]
[5]T46
59 The plaintiff agreed she had taken Valium for quite a long period of time. She still takes antidepressants.
60 In July 2006, the plaintiff thought, possibly, she complained of having pain in her shoulders, with worse pain in the right.[6]
[6]T49
61 The plaintiff agreed she was back to doing housework but having problems in the months after the accident. She was seeing Dr McGibbon, who sent her to Mr Grey for counselling. His five sessions possibly assisted her.[7]
[7]T49
62 The plaintiff agreed in January 2007, she was depressed, sleeping poorly and having some marital problems. As of February 2007, she was on Zoloft, which made her feel worse.
63 The plaintiff quite possibly was still upset with psychological problems until February 2008, when she said she was feeling much better and was more positive. She explained that was quite possible as there had been lots of ups and downs.[8]
[8]T51
64 The plaintiff agreed that in May 2008, she complained of “muscle aches, neck, right shoulder since accident, tender down neck and right shoulder”.
65 In 2008, the plaintiff was taking Lexapro. She was getting pain under the right shoulder blade. Her shoulder was tender and an ultrasound was arranged.[9]
[9]T52
66 The plaintiff confirmed the pain was under her shoulder blade,[10] as she demonstrated in the witness box, pointing to her shoulder blade. She described constant pain, burning there all the time. She did not know if the pain came from her shoulder or from her neck.[11]
[10]T52
[11]T53
67 The plaintiff confirmed that she had an earlier shoulder injury, as she had set out in her affidavit.
68 The plaintiff was asked about an OT assessment by Ms Mealor, who came to her house in November 2006. She did not tell Ms Mealor that migraines returned after the accident but had since ceased.
69 The plaintiff denied she told Ms Mealor that her shoulder condition was much the same as it had been pre-accident. She had a shoulder injury fifteen years ago and it resolved completely. Her shoulder just got sore; she had treatment and it resolved the injury.[12]
[12]T57
70 Ms Mealor obviously misunderstood what the plaintiff said. The plaintiff has never lied about her shoulder condition, having deposed to it. She also denied she reported to Ms Mealor that she had no continuing physical limitations as a result of the accident.
71 The plaintiff ultimately admitted that her shoulder soreness could have become a little worse because of increased tension resulting from her emotional state.[13] When asked again whether most of her early treatment was psychological, she agreed, but she also sought help for her physical injuries.
[13]T60
72 The plaintiff confirmed she told Ms Mealor that she just had to get on with things[14] and that she was still doing some bookkeeping work and that she was doing whatever needed doing, as she deposed to. The plaintiff agreed she had been prescribed Zoloft in April 2007.
[14]T60
73 Dr Grave treated the plaintiff’s shoulder and neck and gave her a lot of painkillers, including Neurontin.[15] The plaintiff confirmed she saw Dr Grave between October 2008 and March 2010. She agreed with his description of her report of pain and it was correct she had always described her pain having a burning nature and it was in the back of her shoulder.[16]
[15]T64
[16]T67
74 The plaintiff had some improvement with shoulder injections from her general practitioner a month before she saw Dr Grave.
75 The plaintiff did hurt her neck as a result of horse riding falls but had no continuing problems.[17] She had not hurt her shoulder riding. The plaintiff agreed she suffered an injury to her right shoulder as a result of working.[18]
[17]T68
[18]T68
76 The plaintiff could not recall having a very good range of shoulder motion when examined by Dr Grave in October 2008. If this was the case, she could not understand why he would treat her if he found nothing was wrong with the shoulder.[19] The plaintiff agreed with Dr Grave’s description of his treatment and its site.
[19]T69
77 The plaintiff attended Professor Carne, neurologist, because it was thought she had carpal tunnel syndrome. Quite possibly he thought her condition was related to work as a dairy farmer but he found there was no carpal tunnel problem.[20]
[20]T70
78 There was a referral to Ms Balkin, psychologist, whose notes appear in the clinical notes from May 2009.
79 The plaintiff agreed that in June 2009, she told Dr Joyce her shoulder was still playing up. There was painful movement and the pain was more around her scapula. The plaintiff said it was quite possible that the pain was mainly on the back of her shoulder where she was pointing in the witness box.[21]
[21]T72
80 The plaintiff was asked about her job at the accounting firm, Struck. She confirmed the hours and duties set out in her affidavit. She agreed, as described by the co-worker, that the job required repetitive and sometimes mentally stressful duties and it could be busy at times. She agreed she took minimal time off, she was a good employee and fellow workers would not have noticed any restrictions.
81 The plaintiff agreed, unfortunately she had a disagreement with one of the partners in November 2011 and that was the reason she left.[22]
[22]T76
82 The plaintiff agreed that what was set out in her résumé was pretty positive in terms of her work and interests.[23] It was a description of what she was doing at that time, including managing the books for her parents’ rodeo business.
[23]T77
83 The plaintiff has a lot of contact with her mother. She has done some voluntary work at the children’s schools. She occasionally watches her children play sport, whether it be football or rodeo riding.
84 The plaintiff has not looked for other similar work to her job at Struck as her husband would just prefer her to be at home.[24] She agreed she was pretty busy at home with four children but denied that her husband was struggling.
[24]T81
85 The plaintiff is still having physiotherapy to her shoulder and neck with Robbie Webb.[25] She agreed with his comment that while her shoulder remained painful in April 2013, its function was progressing quite well.
[25]T83
86 Someone other than Mr Webb had earlier suggested to the plaintiff that her problems were in her head.[26] There had been a suggestion of her attending a chronic pain management program and she was still waiting for that referral which was being organised by Dr Johnson and Mr Webb. The plaintiff would do anything to get rid of the pain.[27]
[26]T85
[27]T85
87 There had been some improvement after the March 2013 operation. The plaintiff agreed she had managed to get back to the routine she described, looking after her children and the house.[28]
[28]T85
88 The plaintiff described family caravan holidays for ten days over summer at Peterborough. She does most of the cooking at home. Occasionally the plaintiff and her husband go to Melbourne to see friends.
89 The plaintiff takes an antidepressant and muscle relaxant, Cymbalta, in the morning. She also takes over-the-counter Panadol Osteo and Nurofen and she then takes Tramadol or Valium. Dr Johnson prescribes Tramadol and there has been no discussion about her stopping it.[29]
[29]T87
90 The plaintiff confirmed she aggravated her shoulder pain whilst swotting a spider. Until then, after the arthroscopy in August 2012, the surgery had improved things partially.
91 The plaintiff could drive to Melbourne if she had to.
92 In re-examination, the plaintiff explained the difficulties with various housework activities. She does the vacuuming left handed. She changes the beds very slowly. She has problems with cutting vegetables. It is difficult washing her hair.
93 When asked how she would compare generally her activities today to before this accident, she said it was incredibility different.[30] She had become a lot more frustrated because she could not get jobs done that she would normally have done because she is a lot slower at what she does and the pain restricts her from being able to do anything quicker than she does.[31]
[30]T88
[31]T89
94 In addition to other medication, the plaintiff also takes Mersyndol. When she has tried giving medication away, she has increased pain in the shoulder.
95 The plaintiff described her health before the accident as probably the best she had felt in a long time. She was also involved in renovating the farmhouse[32] and that was starting from a wreck of a house and pulling it to pieces, and she was involved in the physical work which she could not do today.[33]
[32]T89
[33]T90
96 The plaintiff relies on the children for a lot of help around the house and expects them to be quite self sufficient; they are nine and ten. They clean their rooms and make their beds. The plaintiff agreed that she was less fussed if she did not get cleaning done. She could not maintain the house as she used to, due to pain and aggravation she experiencing doing household duties.
97 In re-examination, the plaintiff explained that in the last couple of months at Stuck her shoulder symptoms were fairly extreme.[34] The work was repetitive and demanding at times. She managed to keep going taking medication.
[34]T 02
Summary of earnings
Financial Year Gross earnings 2003 – 2004 $13,753 2004 – 2005 $7,790 2006 – 2007 $24,249 2007 – 2008 $26,199 2008 – 2009 $15,478 2009 – 2010 $1,295 2010 – 2011 $13,803 2011 – 2012 $4,095
Lay evidence
98 The plaintiff’s husband, Alan Geoffrey Anson, swore an affidavit on 23 July 2013.
99 Mr Anson confirmed the plaintiff’s account in her two affidavits. He was the driver in the accident, which was a violent head-on collision, causing him to lose control and travel a considerable distance while out of control. The oncoming vehicle then went on to collide with another which was travelling behind. As a result, one of its occupants was killed.
100 Mr Anson suffered severe injuries to his neck, subsequently requiring a spinal fusion. The plaintiff was a front-seat passenger. Almost immediately after the accident, she complained of pain in her right shoulder, neck and chest, and she has consistently complained of pain in those areas since the accident.
101 The plaintiff struggles to get a good night’s sleep. She normally goes to bed at 7.30pm so she can get settled and watch television while lying in bed. She suffers from disturbed sleep and frequently has to get up.
102 The plaintiff struggles with pain, particularly in her neck and right shoulder, and is saddened by the way her life now is. She is not the same person that she was before the injury. She has a shorter fuse and is no longer as tolerant as she was previously.
103 The plaintiff resents the amount of medication that she is taking for pain relief and the restrictions the injuries impose.
104 Whilst the plaintiff still attempts most housework, she struggles with many activities, both because of pain and the length of time she takes to complete relatively simple tasks.
105 Following the accident, the plaintiff resumed smoking and put on about 15 kilograms. That situation has had an adverse effect on her self esteem.
Medical evidence
106 Rural Ambulance-Ambulance Victoria records of 10 January 2008 set out the plaintiff reported tenderness in the left thigh and discomfort in the left shoulder. She had abdominal and neck pain.
107 It was noted it was a three by three vehicle accident – high impact.
108 The plaintiff attended Emergency at Bendigo Hospital on the said date.
109 The history was that the plaintiff was a front-seat passenger in a high speed head-on collision, on the right side, by another car. Her car spun almost 360 degrees. She had no loss of consciousness and had recall of the event.
110 On arrival at Emergency, the plaintiff was wearing a cervical collar and complaining of left-sided neck pain. She did not complain of other pain. She was alert and orientated with a Glasgow coma score of 15 out of 15. She had full movement of all limbs. There was no tenderness of the back.
111 X-rays of the chest, as well as a CT scan of the plaintiff’s neck showed no abnormalities. A CT scan of the abdomen was organised as there was some tenderness in the pelvic area, and that was reported as normal.
112 As the plaintiff was feeling well and her observations had been normal, she was discharged and had no further involvement at the Hospital.
113 Dr Joyce from Hamilton Medical Group (“HMG”) reported in August 2009 that the plaintiff was involved in the accident and first consulted him in January 2008 with symptoms of anxiety and depression, noting she was then consulting Mr Gray, psychologist.
114 The plaintiff was commenced on medication with good effect but relapsed due to chronic pain in her shoulder and scapular region. She responded very well initially to cortisone injections in her right shoulder but, unfortunately, this was not long lasting. He noted the plaintiff had consulted a musculoskeletal physician and at that time was having regular psychological sessions with positive effect.
115 Dr Joyce’s personal opinion was that the physical demands of a farmer and fencing contractor was too much for the plaintiff and he believed she and her husband were in the process of selling the farm.
116 Dr Joyce reported in February 2010 that the plaintiff consulted him on 29 January 2010 for the first time since August 2009 complaining of neck and shoulder pains despite high dosages of pain medication prescribed by Dr Grave.
117 The plaintiff complained of severe lethargy and had gained a lot of weight due to her incapacity to do exercises. Her mood was up and down and she needed a re-referral to Sue Balkin-Mitchell. Dr Joyce was uncertain of the final outcome of the plaintiff’s physical and physiological ongoing symptoms.
118 On 31 March 2011, Dr Joyce reported that the plaintiff had only seen him once since his last report. She and her husband had sold the farm and she had a new job and she generally felt much happier in herself. The plaintiff still had pain in the shoulder. She was trying to wean herself off strong pain medication. He was uncertain about her ongoing shoulder pain but generally much improved.
119 Dr Joyce reported in December 2011 that he had seen the plaintiff twice since his March 2011 report, noting she was generally much better. He thought her mood was stable and noted she had ceased her chronic pain medication. She was still on a mood stabiliser and occasionally used a muscle relaxant.
120 Dr Joyce noted the plaintiff felt she benefited from chiropractic treatment for her shoulder and muscle spasms. He thought that it was probably not justified as a maintenance treatment, and agreed with Mr Kierce, a well structured exercise program would be better for the plaintiff.
121 Dr Murray Grave reported in May 2012 that he first saw the plaintiff in October 2008 in relation to her 2006 car accident injuries. He described the head-on collision, at which time the plaintiff had her head rotated to the right.
122 The plaintiff told Dr Grave that since the accident, she had had persistent pain which caused discomfort in the right parietal region, right neck, right shoulder, particularly extending out to the tip of the shoulder and inferior border of the scapula, with pain referring down the right arm into the hand, involving her little, ring and middle fingers.
123 The plaintiff described pain of a burning type over the scapular region and also extending up to her head. It was of moderate severity throughout the day but intensified towards evening.
124 The plaintiff also complained of persistent right shoulder pain which had partially responded to a steroid injection which was given a month prior to the first consultation with him. Prior to that, she stated she had a restricted range of shoulder joint movement and was not able to do tasks such as hanging out washing. The arm pain had improved after the injection. Dr Grave noted the right shoulder ultrasound of 2008.
125 On initial examination, there was a very good range of right shoulder motion with only a slight restriction of internal rotation with abduction. The shoulder joint compression test was negative. Resisted motion demonstrated normal strength, and passive motion of the right shoulder was full.
126 Myofascial release was performed over the trapezius and levator scapulae.
127 Dr Grave noted the shoulder injection, given a month prior to that consultation, had worked well. He noted the final consideration was that the plaintiff described a neuropathic pain, burning in type, and it was considered she might need a trial of pain modifying agents but to wait and see.
128 Dr Grave noted the plaintiff had fluctuating fortunes in relation to her pain in her head, right shoulder and interscapular region, and she had fluctuating headaches.
129 In late November 2008, the plaintiff was given a trial of Lyrica for the burning pain but, unfortunately, there was a side-effect of tiredness.
130 The plaintiff had further steroid injections around her shoulder in Hamilton, with again fluctuating results. She had problems with persistent headaches, worse on the right than the left, and at times she had migraines. Dr Grave noted the plaintiff had a history of headaches prior to the car accident which were migrainous but seemed to resolve after a hysterectomy and then resumed after the accident.
131 On 10 February 2009, the plaintiff had triggerpoint injections into the trapezius and levator scapula, as well as a greater occipital nerve injection on the right. She had a myofascial release performed of the upper thoracic and posterior cervical musculature, and was given Mobic.
132 Dr Grave noted the plaintiff found farming and family life very difficult after the accident. In March 2009, the plaintiff’s anti-depressants were changed in a bid not only to attempt to lift her mood but also help with musculoskeletal ache. In April 2009, her medication was changed to Zoloft and she was then seeing a psychologist, as she was struggling mentally as well as physically with the pain.
133 Dr Grave noted the plaintiff had persistent neuropathic pain in the right arm which tended to fluctuate along with persistent head, shoulder and neck pain. She had continued to have paresthesia in the fingers generally and in an area of dullness around the right thumb. She described a shooting pain down the right arm and a sharp razor like pain in the side of her neck and the scapular region when seen in August 2009.
134 As a result, the plaintiff was referred to Professor Carne, neurologist, whom she saw in November 2009. His examination was normal for both the head, neck and upper limb, and he wondered whether her symptoms could be related to her dairy farmer work. The plaintiff was referred for nerve conduction studies for which an MRI scan was carried out in October 2009.
135 Having described the MRI scan and the nerve conduction studies, Dr Grave noted an MRI scan of the right shoulder was obtained on 3 December 2009 at the request of Mr Schofield. The conclusion was there was a suggestion of a subacromial-subdeltoid bursitis with a subacromial bursal effusion. There was no identified rotator cuff tear. There was minimal irregularity of supraspinatus tendons signalled compatible with tendinosis-intrasubstance degeneration.
136 There was a cervical spine x-ray which demonstrated straightening of the normal cervical lordosis. Disc and vertebral body heights were preserved. The prevertebral soft tissues were normal. There was no bony lesion identified.
137 When Dr Grave last saw the plaintiff in March 2010 she felt the pain in her shoulder was unaltered. She was taking Neurontin, 600 milligrams, three times a day and at night and if she had severe pain she might take Panadeine. The plaintiff described her right neck and shoulder pain as burning, and physical activity, such as milking the cows, “killed” her.
138 Dr Grave concluded the plaintiff was involved in a dreadful car accident, as a result of which she sustained a persistent chronic neuropathic pain involving her right neck, parietal region temple and frontal area, as well as pain extending into the right shoulder and into the posterior scapular region.
139 Dr Grave noted, as a consequence of her pain, the plaintiff had had to sell her farm and they were not able to keep up with dairy farming. The accident had also dramatically changed the course of her life and she had become quite depressed and required medication in that regard.
140 Dr Grave noted the plaintiff was having to learn to live with her pain. He thought she had a Chronic Pain Syndrome with neuropathic pain following a most horrific motor vehicle accident.
141 Professor Carne from the Neuroscience Department at Barwon Health wrote to Dr Grave in October 2009 thanking him for referring the plaintiff, who had symptoms of headache, neck pain and central chest pain.
142 Professor Carne found no neurological deficit on examination. He discussed with the plaintiff a possible diagnosis. He noted she had had an MRI scan of the neck and thoracic spine that morning and he could see no obvious abnormalities but the investigations had yet to be reported by the radiologist.
143 Professor Carne thought it possible, given a history of nocturnal wakening with paraesthesia in the hand and the plaintiff’s occupation as a dairy farmer, that there was a contribution from carpal tunnel and that would be something easily fixed.
144 Professor Carne advised he had arranged a nerve conduction study for the plaintiff. He noted that with a history of migraine with aura, that he would strongly advise the plaintiff to stop smoking. He noted the plaintiff felt she was currently taking too much medication. He suggested she try to wean off the codeine component, as that was most likely to contribute to buzzing headaches.
145 Professor Carne concluded, after the nerve conduction studies in October 2009, that motor and sensory nerve conduction studies in the upper limbs were within normal limits, including detailed digital sensory comparison studies. There was no electrophysiological evidence of median or ulnar entrapment neuropathy.
146 Professor Carne wrote to the plaintiff’s solicitors in February 2010 advising he had consulted once with the plaintiff on 22 October 2009 and for nerve conduction studies on 23 October 2009. He concluded, in summary, that no underlying structural cause for the plaintiff’s symptoms was found. He thought there was possibly a contribution to headache from worsening of pre-existing migraine headaches but that did not explain all of her symptoms.
147 Professor Carne considered there had been significant adjustment difficulties following the accident and, in his view, that would be the main limiting factor in continuing the plaintiff’s capacity to work as a farmer and fencing contractor.
148 Ms Tania Aitken, physiotherapist, reported the plaintiff first presented for treatment in March 2011 with ongoing right anterior chest pain, headaches and, more recently, pain in the face and feeling very stressed.
149 Treatment consisted of soft tissue techniques to the muscles of the cervical and thoracic spine, shoulder girdle and anterior chest
150 Ms Aitken was unable to determine whether the plaintiff’s complaints were directly related to the accident as she had first seen her five years thereafter.
151 As of September 2011, Ms Aitken believed the plaintiff’s condition had not stabilised, and ongoing physiotherapy was needed.
152 Dr Johnson, from the HMG, reported to the plaintiff’s solicitors in March 2012. He advised that the plaintiff was injured in a motor vehicle accident and she had ongoing pain issues in her thoracic spine and right shoulder. He noted a recent ultrasound had demonstrated an anatomical abnormality of the plaintiff’s shoulder and there was a suggestion of possible problems with her costochondral joints as well.
153 Dr Johnson thought it appropriate the plaintiff have orthopaedic management. He was unaware where this matter was with the defendant but he gathered there was a problem, as the plaintiff was paying her own way. He thought that the issue needed rather urgent clarification so that the plaintiff could go forward and seek the appropriate help.
154 Dr Johnson noted he was referring the plaintiff to Mr Andrew Byrne, orthopaedic surgeon, whom the plaintiff would see privately, but the agenda was one of urgency and it was good that the problem be solved sooner rather than later.
155 Dr Johnson wrote to the defendant in March 2012 advising he had referred the plaintiff to Mr Byrne. Dr Johnson noted that the defendant may recall, by reference to the plaintiff’s clinical notes, that since being injured in a high-speed motor vehicle accident in 2006, she had suffered continuously from right shoulder pain in addition to her thoracic spine, neck and sternum. Dr Johnson advised an MRI scan had been performed which demonstrated shoulder pathology.
156 Dr Johnson also advised the other problem which he had referred to and which was also quite debilitating was constant pain in the plaintiff’s low thoracic spine and anteriorly in the costochondral joints. He thought it reasonable that there would be an MRI scan to ascertain any anatomical damage.
157 Dr Johnson organised an MRI scan of the plaintiff’s chest and thoracic spine. There was a normal study of the sternum and costal cartilages and of the thoracic spine. There were no abnormalities identified in relation to the chest.
158 Dr Johnson reported in September 2012 that following shoulder surgery, the plaintiff continued to have neck, thoracic spine and anterior chest discomfort. Noting the recent MRI of her chest, sternum and thoracic spine which was unremarkable, Dr Johnson said he might be quite interested to get hold of the MRI of the cervical spine as he was considering further referral to a spinal surgeon.
159 Mr Byrne, orthopaedic surgeon, reported first in June 2012, having seen the plaintiff on referral from Dr Johnson in March that year.
160 On examination, there was a painful arc in abduction and forward flexion of a mild degree only. Muscle wasting was noted. There was focal tenderness in the subacromial space of a mild degree. There was some weakness of external rotation identified but a well preserved range of motion. The shoulder was otherwise ligamentous stable. The acromioclavicular joint revealed significant focal tenderness with a positive across chest compression test.
161 Mr Byrne advised the plaintiff she had evidence of an acromioclavicular joint injury with a probable delamination in the rotator cuff. Mr Byrne noted he was quite surprised, when he initially met the plaintiff, that she had not had an MRI scan of the right shoulder, and advised this would be arranged for her and he would see her thereafter.
162 Mr Byrne noted the 26 March 2012 MRI raised the possibility of an in substance delamination tear in the supraspinatus insertion.
163 On review in late April 2012, Mr Byrne informed the plaintiff of the findings, and as the pain was severe, intervention was required. He recommended an arthroscopy with a view to decompression and assessment of the rotator cuff for potential repair. He also recommended an excision of the joint as the plaintiff also had significant acromioclavicular joint tenderness.
164 Mr Byrne concluded the plaintiff had a significant injury to her right shoulder and had, clinically, a delamination tear in the supraspinatus, as well as acromioclavicular joint pathology. The MRI confirmed his clinical diagnosis and the next step was to consider an arthroscopy with a view to decompression and rotator cuff assessment with a potential repair, as well as excision of the acromioclavicular joint.
165 Mr Byrne was surprised that this matter was a legal issue, as the mechanism of injury was totally in keeping with a motor vehicle accident.
166 Mr Byrne performed a right shoulder arthroscopy decompression, cuff repair and AC excision at St John of God Hospital on 14 August 2012.
167 Mr Byrne reported again in December 2012, detailing his post-operative review. On 28 August 2012, the plaintiff said the pain was now a lot better.
168 On review in October 2012, Mr Byrne noted, unfortunately, an incident occurred where the plaintiff had swatted a spider and developed severe pain and started to vomit with the pain. Mr Byrne advised the plaintiff she might have re-injured the shoulder in that incident but a conservative approach was appropriate, as he thought the delamination tear had been repaired soundly. His opinion was unchanged. He confirmed he thought the plaintiff had sustained a significant right shoulder injury which he believed was a direct result of the accident.
169 Mr Byrne noted the December 2009 MRI scan of the right shoulder ordered by Mr Schofield. Whilst no rotator cuff tear was noted, the comment was made that there was an irregularity in the supraspinatus tendon compatible with tendinosis or intrasubstance degenerative change.
170 Mr Byrne noted a subsequent MRI scan performed by him revealed a progression of the MRI changes in the supraspinatus tendon with now intrasubstance delamination tearing noted.
171 Mr Byrne thought an injury can occur to the supraspinatus tendon that can progress over time. He noted, initially, the tendinosis or altered signal seen on MRI is reported, but in some cases is missed.
172 Subsequently, given the fact the plaintiff’s symptoms did not settle, a further MRI scan was performed and incidentally reported by the same radiologist who reported in 2009, and now a definite tear was seen.
173 Mr Byrne believed the mechanism of injury of the accident was the cause of the plaintiff’s shoulder complaint and that her case should be accepted under the circumstances.
174 Mr Byrne reported again in June 2013, noting a review in December 2012 when he advised the plaintiff she had evidence of an adhesive capsulitis or frozen shoulder and told her that hydrodilatation would be the next step to try and improve her outlook. That procedure was performed on 17 December 2012.
175 On review on 1 February 2013, the plaintiff informed Mr Byrne that procedure had not helped her shoulder at all and she requested further intervention and he recommended an arthroscopy with a view to capsulotomy.
176 On 5 March 2013, a right shoulder arthroscopy was performed where a decompression and a capsulotomy were performed.
177 On review on 26 March 2013, the plaintiff was having physiotherapy and taking Panadol Osteo. Her pain had improved significantly and Mr Byrne advised continuing conservative treatment.
178 Robert Webb, physiotherapist from Physio Freedom, reported in May 2013. The plaintiff first presented there on 8 March 2013 following surgery in March.
179 Mr Webb noted that this attendance was six years after the accident and his views in causation were therefore relied heavily upon the plaintiff’s subjective history.
180 Mr Webb thought the mechanism of the accident could definitely explain injury to the plaintiff’s sternum, neck and right shoulder.
Investigations
181 Dr Grave organised a right shoulder x-ray and ultrasound in May 2008.
182 No soft tissue calcification and no bony or joint abnormality was identified on x-ray.
183 On ultrasound, the supraspinatus was thickened and heterogeneous in keeping with tendinopathy and there was thickening of the subacromial bursa in keeping with bursitis. It was reported that that was associated with impingement to abduction. The biceps tendon and the cuff elsewhere were intact with no further abnormality.
184 Dr Grave organised an MRI scan of the cervicothoracic spine in October 2009.
185 An MRI scan of the plaintiff’s right shoulder was organised by Mr Schofield on 3 December 2009. It was reported that findings suggested a possible subacromial-subdeltoid bursitis and, in addition, a subacromial bursal effusion. It was reported that a rotator cuff had not been identified. However, minimal irregularity of the supraspinatus tendon signal was compatible with tendinosis intrasubstance degeneration.
186 An ultrasound of 21 February 2012 confirmed an old partial tear of the supraspinatus tendon
187 An MRI scan on 26 March 2012 confirmed a similar finding in the tendon, as well as subacromial bursal effusion. Mr Byrne noted the MRI raised the possibility of an insubstance delamination tear in the supraspinatus tendon.
Medico-legal evidence
188 Mr Stanley Schofield, orthopaedic surgeon, first examined the plaintiff in October 2009 for the purposes of an AMA assessment.
189 The plaintiff reported neck pain, problems with overhead activity and referred pain into the right shoulder and scapula, radiating to the elbow.
190 On examination, the right shoulder revealed anterior tenderness, no evidence of wasting, a full range of movement in all directions and a negative impingement test. There was some reduction in cervical movement and neurological examination was normal.
191 Mr Schofield noted Dr Joyce, in August 2009, reported the plaintiff had continuing right shoulder problems. The plaintiff had improved with cortisone injections. Mr Schofield also noted Dr Grave’s report of October 2008, which contained reference to continuing symptoms in the neck, right shoulder, right scapula and right arm to the hand involving the fingers.
192 Mr Schofield concluded that the plaintiff had been involved in a high-speed accident. Persisting symptoms involved the soft tissues of her neck and right shoulder and she had had various forms of conservative treatment without much benefit and had only minimal investigations.
193 Mr Schofield reported his current examination revealed some evidence of radiculopathy affecting the right arm which was likely to have occurred as a result of the accident. In addition, there were symptoms in the plaintiff’s right shoulder, although the signs were minimal. He noted that although she had returned to her former duties farming, the plaintiff had difficulty coping and she and her husband had decided to sell up.
194 Mr Schofield advised an x-ray and MRI scan of the neck and shoulder were required. He also organised an MRI scan of the right shoulder on 3 December 2009. It was reported that findings suggested a possible subacromial-subdeltoid bursitis and, in addition, a subacromial bursal effusion. It was reported that a rotator cuff had not been identified. However, minimal irregularity of the supraspinatus tendon signal was compatible with tendinosis intrasubstance degeneration.
195 An x-ray of the right shoulder showed AC and glenohumeral joint alignment was normal. There was Type II curve to the acromion and no dystrophic calcification was seen.
196 Mr Schofield reported again on 23 October 2009 following examination on 9 December 2009.
197 Having received photocopies of the investigations, the x-ray of the cervical spine of 3 December 2009 and right shoulder of that date, MRI of the right shoulder of 3 December 2009 and cervicothoracic spine dated 22 October 2009, Mr Schofield concluded those investigations demonstrated there was loss of normal cervical lordosis due to muscle spasm, which he noted was normally a result of underlying soft tissue pathology. In this case, he noted no underlying disc pathology was reported. Therefore, the reason for the plaintiff’s continuing neck and right shoulder pain and right nerve symptoms affecting the fingers more on the right than the left had not been identified.
198 Mr Schofield noted the history of the injury suggested the plaintiff’s hands were used in an attempt to prevent excess movement of her body during the crash period. Although she did not have evidence of clinical carpal tunnel syndrome, he thought the impact on both hands at the time of injury may have caused some soft tissue damage to the median nerve of the wrist joint and may explain the reason for the plaintiff’s symptoms in the right arm which could radiate from the fingers up to the shoulder and into the side of the neck in some cases of carpal tunnel syndrome. He thought nerve conduction studies were appropriate.
199 In a supplementary report of 21 January 2010, Mr Schofield noted he was unaware that the plaintiff had been referred to and examined by a neurologist and had undergone nerve conduction studies. He was forwarded that material.
200 Mr Schofield noted that when the plaintiff was examined on 23 October 2009, his examination included an absent right triceps jerk and there was no clinical evidence of carpal tunnel syndrome – a condition which would be caused by the type of pressure in the accident.
201 Mr Schofield noted that, despite the history which was consistent with carpal tunnel syndrome, the nerve conduction study did not support the diagnosis. In his forty two years of practice, he noted that it had been occasionally found that nerve conduction studies were unreliable so that it was still a reasonable assumption that the plaintiff did have bilateral carpal tunnel syndrome.
202 Mr Schofield re-examined the plaintiff on 24 June 2011, having been provided with Mr Kierce’s report of February 2011.
203 Mr Schofield noted on that re-examination, that the plaintiff advised she found it impossible for her and her husband to be able to continue dairy farming and the farm was put on the market and sold in September 2010. Mr Schofield noted the plaintiff worked as a bookkeeper casually. She took Neurontin daily and had physiotherapy every two weeks. She felt her symptoms had not improved.
204 The plaintiff then continued to complain of pain in her neck with referred pain radiating to the right elbow, as well as tingling in the three fingers at night. She also woke at night with right shoulder pain and could not lie on it.
205 Mr Schofield noted the plaintiff was overweight but appeared totally genuine in her complaints. There was tenderness in the neck and a reasonably good range of movement. There was normal upper limb power. Examination of both shoulders revealed a full range of movement without local tenderness. There was no wasting and a negative impingement test.
206 Mr Schofield noted Mr Kierce’s report of February 2011, Professor Ball’s psychiatric assessment of March 2011 and the defendant’s decision in June 2010 based on Mr Kierce’s report, that no further physical treatment was required and it would not be funded.
207 Mr Schofield noted that he had examined the plaintiff twice and there was consistency in her complaints. He thought her symptoms were consistent with injury to the soft tissues of the neck, causing neck pain and referred arm pain. He thought her clinical signs were genuine.
208 Mr Schofield suggested that the plaintiff undergo a repeat MRI scan at rest and repeat x-rays.
209 Mr Schofield reported again in November 2011, reporting on a current MRI scan with additional weight bearing showing some evidence of minor foraminal stenosis, mainly affecting the C4-5 disc level, and less prominent changes at C5-6 and C6-7. He noted it did not report of nerve root compression, which would explain the symptoms in the plaintiff’s right arm.
210 Mr Schofield thought the weight bearing investigation of MRI had shown evidence of pathology consistent with chronic neck pain. He thought the plaintiff’s clinical symptoms were consistent with the central disc prolapse. He thought the upright MRI confirmed his view that the plaintiff does suffer genuine neck pain which, on balance, had arisen from the severe impact as a result of the accident.
211 Mr Schofield noted the referred symptoms in the right arm had not been fully explained by the current investigations and it may be worthwhile repeating the nerve conduction test. He thought, with regard to prognosis, there was a possibility that eventually, the plaintiff’s symptoms would increase to such a degree that she may need a fusion and a decompression at C4-5.
212 Mr Schofield reported again in January 2012. He noted more recent nerve conduction studies had failed to confirm evidence of carpal tunnel syndrome and it was more likely the symptoms in the arms were referred from the plaintiff’s neck.
213 In response to Mr Kierce’s view that the plaintiff’s symptoms no longer had an objective basis, Mr Schofield pointed out that x-rays on two occasions and the recent MRI confirmed evidence of objective signs causing the plaintiff’s chronic neck pain.
214 Mr Schofield re-examined the plaintiff in July 2012. He was then provided with the ultrasound and MRI of 2012 and material from Dr Johnson, Mr Byrne and Dr Grave.
215 Mr Schofield thought that symptoms in the plaintiff’s arms were likely to be referred from her neck, based on positive evidence from the upright MRI. He therefore disagreed with Mr Kierce’s view that the plaintiff’s symptoms no longer had an objective basis.
216 On examination, the right shoulder revealed a full range of movement, but despite that, the plaintiff had a positive impingement test, indicating soft tissue changes in the right arm, for which she was awaiting approval for surgery.
217 Mr Schofield noted the February 2012 ultrasound had confirmed an old partial tear of the supraspinatus tendon and the MRI scan in March 2012 confirmed a similar finding in the tendon, as well as subacromial bursal effusion. On the basis of those findings, he noted Dr Johnson had referred the plaintiff to Mr Byrne.
218 Of particular concern to Mr Schofield was Mr Kierce’s comment that he believed the plaintiff had bilateral shoulder girdle dysfunction unrelated to her accident and, therefore, rejected any further treatment.
219 Mr Schofield’s clinical examination did not reveal any evidence of functional overlay. He noted the plaintiff complained of right arm pain consistent with referral from the C6 or C5 nerve root. He noted the history was such that the impact of a whiplash-type stress on the plaintiff’s neck was very likely to cause damage or compression of the nerve roots.
220 Mr Schofield did not believe the defendant had taken into account the severity of the plaintiff’s injury and the consequences of that injury with the complete disruption to her working life as a result thereof. He thought the plaintiff’s right shoulder pathology requiring surgery was consistent with the stated cause. In his view, there was a likelihood the plaintiff did sustain injury to a lower thoracic spine in the motor vehicle accident which required further investigation. He thought the accident mechanism was consistent with the injuries to the thoracic spine.
221 Mr Schofield reported again on 29 September 2012, commenting on the upright MRI scan of the cervical spine carried out in October 2009. He also commented on the operation report on the plaintiff’s shoulder, noting the significant findings were as follows:
“Glenohumeral joint was normal, the subacromial bursoscopy was performed indicating bursitis. Acromioplasty was performed with the findings of degenerative change with osteophytes. The rotator cuff examination confirmed a tear which was repaired and that involved the supraspinatus.”
222 Mr Schofield thought the surgical findings and procedure confirmed the plaintiff did have evidence of injury to her right shoulder which he thought was likely to have occurred as a result of the accident. Presuming she had not complained of any symptoms to her right shoulder before the injury, it was more likely than not she did not have any evidence of wear and tear at the age of forty.
223 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in April 2013. He took an extensive history and noted the plaintiff had to have a second operation on her right shoulder in March 2013.
224 The plaintiff complained she had pain in her neck and right shoulder and suffered from migraines. Mr Kossmann diagnosed pain and movement restriction in the right shoulder on the basis of an incomplete tear of the supraspinatus tendon, thickening of the sub-deltoid bursa and acromioclavicular joint arthritis, operated and complicated by an adhesive capsulitis requiring a second operation.
225 Mr Kossmann also noted pain in the cervical spine on the basis of degenerative changes in the form of a disc osteophyte at C4-5, C5-6 and C6‑7 levels with minor foraminal stenosis. In addition, he diagnosed anxiety, depression and flashbacks.
226 Mr Kossmann thought the plaintiff was still suffering from pain and movement restriction in her right shoulder in which she seemed to have developed osteoarthritis. He thought she required continuing conservative treatment and there was a moderate likelihood of further surgery.
227 Mr Kossmann noted the plaintiff was also suffering from pain in her cervical spine and complained about tingling in her right hand but he could not find any neurological pathology.
228 Mr Kossmann thought the plaintiff had suffered an injury to her right shoulder in the accident. He noted the diagnosis had been delayed; however, she complained about pain in her right shoulder since the accident. Mr Kossmann agreed with Mr Byrne that the injuries were sustained in the transport accident.
229 Mr Kossmann also believed that the plaintiff suffered injuries to her neck and chest in the accident. He disagreed with Mr Kierce’s comment that the plaintiff’s symptoms no longer had an organic basis and that she had recovered from any accident injuries. As outlined in his report, there was a documented history of the plaintiff’s right shoulder injury since the accident.
230 Mr Kossmann noted that Mr Kierce wrote under the heading “Diagnosis” - “It was likely the plaintiff suffered soft tissue injuries to her neck and right shoulder in the accident with bruising of her chest”. In his opinion, she had a significant psychological response to the accident which had affected her physical symptoms. As a result, in his opinion, she had symptom magnification due to lack of objective findings on physical examination and on his review of the medical imaging studies.
231 Mr Kossmann noted Mr Kierce also wrote “The plaintiff continued to suffer with right shoulder pain, neck pain and right arm pain, together with chest pain which had arisen from the transport accident”. Mr Kierce then wrote, in his opinion, those symptoms no longer had an objective organic basis. In his opinion, the physical symptoms can no longer be attributed to the accident, as the plaintiff has no evidence on objective physical examination of significant abnormalities in the cervical spine, right shoulder, right arm and chest.
232 Mr Kossmann thought this was contradicting what Mr Kierce had written in the same report dated 24 May 2010 when, under “examination”, he described the plaintiff had a reduced mobility of her right shoulder which, in Mr Kossmann’s opinion, showed the plaintiff was suffering from a significant movement restriction in her right shoulder.
233 Consequently, Mr Kossmann thought Mr Kierce had erred when he was writing in his report that there was no evidence of an objective physical finding of significant abnormalities in the neck, right arm and chest.
234 Mr Kossmann noted the plaintiff had continuously complained about right shoulder pain and movement restriction since the accident, and his view was the injury had caused it. He thought the plaintiff had not recovered from those injuries.
235 Mr Kossmann commented on the defendant approving funding for an MRI scan of the thoracic spine and further investigation of the chest problem. He disagreed with the defendant’s decision to terminate all treatment, as he thought the plaintiff required further maintenance therapy in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.
The Defendant’s medical evidence
236 Mr Paul Kierce, orthopaedic surgeon, first examined the plaintiff in May 2010. In summary, he thought the plaintiff had recovered from the physical injuries sustained in the accident. It was his definite opinion the defendant was no longer liable to fund her continuing chiropractic treatment.
237 Mr Kierce noted it was difficult to get the exact details of the accident, as it was obviously very distressing to the plaintiff, and he did not go into the details with her.
238 The plaintiff indicated she was suffering from pain in the right side of her neck radiating to her right shoulder down the whole of the back of her right arm and into all her fingers. She had referral of pain into the right shoulder blade and in addition, in the interscapular area which radiated out to both shoulder blades, which she described as a burning pain. The plaintiff described a constant burning pain in the right shoulder and also constant neck pain, but not as severe.
239 On examination, there was no wasting of the right shoulder girdle muscles. The plaintiff was tender anteriorly over the right shoulder joint with a little tenderness over the right acromioclavicular joint. There was no winging of the right scapula. The impingement test was negative and there was no crepitus on the right shoulder movements. The plaintiff was tender over the manubriosternal joint and along the anterior aspect of the sternum.
240 Mr Kierce noted he had reviewed the report of the MRI scan of the plaintiff’s right shoulder but he was not able to review those films. He noted the report stated “possible subacromial bursitis”.
241 Mr Kierce thought it likely the plaintiff suffered soft tissue injuries to her neck and right shoulder in the accident, with bruising of her chest. He thought she had a significant psychological response to the accident which had affected her physical symptoms. In his opinion, the plaintiff had symptom magnification due to lack of objective findings on physical examination and on his review of the medical imaging studies.
242 Mr Kierce noted the plaintiff continued to suffer with right shoulder pain, neck pain and right arm pain, together with chest pain, which had arisen from the accident. He then said those symptoms no longer had an objective basis and could no longer be attributed to the accident, as the plaintiff had no evidence on objective physical examination of significant abnormalities in the neck, right shoulder, right arm and chest.
243 Mr Kierce thought no further physical treatment was required and treatment should be ceased altogether and replaced by an exercise program. However, he considered the defendant was not liable for those measures as the plaintiff had recovered from any physical injury she sustained.
244 Mr Kierce re-examined the plaintiff in February 2012. In summary, he thought she had recovered from any soft tissue injuries to her neck and right shoulder she may have sustained in the accident. He thought, as before, her symptoms were not supported by physical examination findings. He stated that his opinion was based on a reasonable degree of medical certainty.
245 The plaintiff indicated she then continued to suffer with right-sided neck pain with referral to both shoulder blades on the outer aspect of the right shoulder but no longer had pain radiating right down the arm and no longer had pins and needles. She described neck and right shoulder pain as constant and she also had continuous headaches and suffered with pain in the front of her chest.
246 On examination, there was no wasting of the right shoulder girdle or winging of the right shoulder blade. The plaintiff was tender over the anterior aspect of the right shoulder itself and over the anterior aspect of the upper rotator cuff. The impingement test was negative and there was no crepitus on right shoulder movement.
247 Mr Kierce concluded the plaintiff had fully recovered from any soft tissue injuries. He thought the whole person impairment of the right shoulder was due to constitutional factors and not the accident. He stated that with a reasonable degree of medical certainty, if the plaintiff had suffered significant injury to her right shoulder in the accident, she would demonstrate long-term objective physical signs, such as wasting of the right shoulder girdle muscles and winging of the right scapula.
248 In Mr Kierce’s opinion, the plaintiff’s psychological response to the accident had coloured her physical symptoms. He thought she should have an excellent prognosis with regard to her neck and right shoulder. However, because of constitutional dysfunction of the right shoulder girdle, he thought she would be at risk with regard to any physical or manual work of lifting of more than 5 kilograms with the right arm, or with regard to digging or dealing with large unpredictable animals. If she avoided those activities and continued to work as a bookkeeper, the prognosis for her neck and right shoulder should be excellent.
249 Mr Kierce also noted the plaintiff no longer had any signs of a carpel tunnel syndrome which had been diagnosed by Mr Schofield in January 2010.
250 Mr Kierce reported again in May 2013 following examination.
251 In summary, Mr Kierce stated the plaintiff had been suffering from a Chronic Pain Syndrome which occurred following the accident, in which she may have sustained soft tissue injuries to her neck and right shoulder, but any injury he thought she sustained in the accident from a purely physical viewpoint had resolved.
252 Mr Kierce thought the plaintiff’s major problem at the moment was pain and limitation of movement because of adhesive capsulitis of the right shoulder following operative treatment for a perceived dysfunction in the right shoulder.
253 Mr Kierce could not agree with Mr Schofield’s interpretations of the cervical investigations in 2011 and 2012. Mr Kierce pointed out that from the physical viewpoint, neuropathic pain usually resulted from some radiculopathy or evidence of nerve compression, and none of the many tests the plaintiff had undergone had demonstrated any evidence of nerve root pressure from the accident.
254 Mr Kierce thought the report of the MRI scan was not consistent with the plaintiff having suffered chronic right arm pain since the accident.
255 It was Mr Kierce’s opinion that on the basis of clinical findings and the MRI report, that operative treatment was not required, although Mr Byrne had a different view and proceeded to operation where he found a Type 3 acromion – namely the acromion was angled inferiorly at its point, possibly interfering with the rotator cuff, for which he performed an acromioplasty. Mr Byrne found that the acromioclavicular joint had degenerative change with osteophytes and stated a mini open approach was made and the joint excised. Mr Byrne also noted examination of the rotator cuff revealed a tear.
256 Mr Kierce was surprised by that finding, since the very sensitive MRI report had spoken only of an intrasubstance delamination and not of a definite tear of the cuff. However, he noted Mr Byrne chose to repair what he found to be a tear.
257 Mr Kierce noted the frozen shoulder and the subsequent surgery. He noted, even though Mr Byrne had previously performed an acromioplasty, he performed a further limited decompression of the acromion.
258 The plaintiff indicated on a diagram that she was suffering with persistent pain on the front of her right shoulder upper chest sternum and right side of her neck, radiating into her face. She also told Mr Kierce she had further continuing pain in all digits of the right hand. Her right shoulder blade pain was a major concern; it was burning and constant.
259 On examination, there was no wasting of the right shoulder girdle muscles and no winging of the right scapula. The plaintiff was tender anteriorly over the right bicipital groove and the anterior aspect of the right shoulder rotator cuff. There was crepitus on right shoulder movement and the impingement test was positive.
260 Mr Kierce viewed the right shoulder MRI of March 2012 which showed some swelling of the right acromioclavicular joint but not impinging on the rotator cuff. He noted there was some delamination of the supraspinatus tendon but no real tear of the right rotator cuff and it was a little swollen.
261 Mr Kierce thought the plaintiff was currently still suffering with a degree of adhesive capsulitis following the surgery for the perceived shoulder dysfunction. He emphasised the impairment was due to constitutional factors and not related to the accident. The whole person impairment was due to adhesive capsulitis following surgery, which was not related to the accident.
262 Mr Kierce thought the shoulder was not yet stable, as surgery was so recent. Having been provided with extensive material, Mr Kierce confirmed he still held the view the plaintiff’s symptoms and signs were not related to the accident and, in his opinion, it had had a significant psychological affect on her. In no way was he accusing her of being a malingerer, noting that the plaintiff’s sincere belief was that she had been severely injured in the accident.
263 Mr Kierce thought, currently, the symptoms advancing from adhesive capsulitis had an organic basis but they were not related to the accident. He stated that the plaintiff’s right shoulder had been injured in 2006, she would have had significant objective signs of injury, both on clinical and medical imaging studies. He thought the plaintiff would gradually recover from the adhesive capsulitis.
264 It was Mr Kierce’s definite opinion that the surgery which was carried out was not a reasonable course of treatment, as the plaintiff did not, in his view, suffer from any accident-related condition.
265 Whilst from the purely physical point of view up until the surgery Mr Kierce thought the accident should not have interfered with the plaintiff’s ability to work, now he thought her work capacity had been diminished by the adhesive capsulitis post surgery and he would have to say that the plaintiff is now fit for sedentary work only but not due to the accident.
266 Mr Kierce thought the plaintiff was not suffering from any transport accident injuries which would interfere with her domestic and leisure activities. Mr Kierce emphasised that his opinion was based on three examinations, together with a review of medical imaging, none of which had been reported to show pathology consistent with the plaintiff having ongoing problems with her right shoulder.
267 Dr Entwisle, psychiatrist, examined the plaintiff in May 2012 for the purposes of an AMA assessment. He thought the plaintiff had a Chronic Adjustment Disorder with Depressed and Anxious Mood in the context of her Chronic Pain Syndrome.
268 Mr Kane Fraser, chiropractor, reported on 9 September 2011 that he had last seen the plaintiff in February 2010 and that being such a long time since that consultation, he felt it would be unprofessional for him to ascertain if the plaintiff’s pain was still due to a previous motor vehicle accident.
269 Mr Fraser completed a Transport Accident Commission chiropractic questionnaire in December 2009 in which he described the plaintiff’s condition, and apparently made no mention of the plaintiff’s shoulder.
270 Mr Robbie Webb, physiotherapist, wrote to Dr Johnson in April 2013, noting that whilst the plaintiff’s shoulder remained painful, its function was progressing quite well. He noted, unfortunately, the increased use of her right shoulder appeared to be associated with aggravation of her neck and sternum pains.
271 Mr Webb considered manual therapy to be appropriate but, given the plaintiff had had her pain for nearly seven years, he thought it most likely there was a component of central sensitisation, and noted, when he raised that possibility, it triggered an adverse emotional reaction which he suspected was because the plaintiff had earlier been told her pain was all in her head.
272 Mr Webb noted the plaintiff did, however, mention that Dr Johnson had suggested previously a chronic pain management program, which Mr Webb thought would be perhaps a more appropriate environment for the plaintiff to address that topic.
Lay evidence
273 Ms Karen Lee Tierney swore an affidavit on 22 April 2013. She is currently employed by Struck Accounting (“Struck”) as an office manager and bookkeeper. Ms Tierney has known the plaintiff since she began with Struck in July 2010 as a bookkeeper.
274 During her normal duties, the plaintiff was required to start work at 9.00am and finished at 3.30pm on Tuesday, Thursday and Friday, with 10-minute breaks in the morning and afternoon and an hour for lunch. She could not recall the plaintiff working overtime and the plaintiff was limited in what she could do due to her knowledge of the business.
275 The plaintiff earned on average $18.48 an hour and usually worked 33 hours a fortnight. Ms Tierney was aware of the plaintiff having had a farm which was sold before she started the job with Struck. The plaintiff was required to do administrative tasks, filing duties, general bookkeeping and receptionist work.
276 Ms Tierney thought the duties performed required repetitive and sometimes mentally stressful duties. She was aware the plaintiff changed chairs during her employment to improve ergonomics.
277 During the course of her employment, Ms Tierney recalled the plaintiff attended work on time. She took minimal time off and had no formal warning and did not suffer from any medical conditions. She considered the plaintiff was a good employee. The plaintiff was not considered for any promotions based on a lack of qualifications in the industry. She was aware the plaintiff had to go to court in relation to an accident.
278 Throughout her employment, the plaintiff did not demonstrate any restrictions in her work duties. Ms Tierney recalled the plaintiff left work on 10 November 2011 due to a disagreement with one of the partners.
279 Ms Tierney believed Mr Struck approached the plaintiff and spoke to her about cutting back her hours and the plaintiff was not happy with that so she decided to resign. Ms Tierney noted general retirement age was about sixty-five. She recalled the plaintiff was very friendly and outgoing and communicated very effectively with colleagues.
280 Ms Tierney has bumped into the plaintiff a couple of times at the local supermarket, the last time about a year ago.
281 On 11 April, Ms Tierney provided Mr Shaun McGrath of Verifact Pty Ltd with copies of the plaintiff’s résumé application for employment dated 28 June 2010, copies of 2011 and 2012 PAYGE statement summaries, letter of resignation of 10 November 2012 and another letter of 10 November 2011.
282 The plaintiff applied for the job with the defendant on 28 June 2010. She advised in that letter of considerable experience, having been self-employed both as a fencing contractor and, most recently, as a dairy farmer and doing the administrative side of the business.
283 In her resignation letter, the plaintiff advised, after seeking advice from CPA, that she was advised to get out as soon as possible and that Graham Struck was running an unlawful and dishonest business.
284 The plaintiff advised bookkeepers should not be expected, nor are they allowed to by law, to do taxation returns. The plaintiff was told, as soon as she hit the button, to do a trial balance. She was acting in the role of an accountant.
285 The plaintiff advised she was very disappointed that that was the outcome, but she had been left with no choice and hopefully this will make a difference for future bookkeepers.
286 Mr Struck replied to that letter on 10 November 2011, advising he had reluctantly accepted the plaintiff’s resignation. Mr Struck advised the plaintiff was incorrect in her allegations. He concluded, after the plaintiff took the opportunity to reflect on her reasons for resigning, he would be more than pleased to speak to her in more of a relaxed environment.
Occupational therapy
287 The defendant wrote to the plaintiff on 21 November 2006 following an occupational therapy assessment. The defendant paid for 4 hours of home help fortnightly until the end of December 2006, and then paid for 2 hours of home services per fortnight from 1 January to 28 February 2007.
288 Ms Mealor, occupational therapist, carried out an assessment at the plaintiff’s home in November 2006.
289 Ms Mealor noted it was suggested that the plaintiff required back surgery when she was thirteen but she was successfully treated with chiropractics. Since that time, the plaintiff had had maintenance treatment between six months apart to fortnightly, depending on her symptoms, and on average it was monthly.
290 The plaintiff reported she had a pre-existing right shoulder condition which was longstanding and thought to be the result of a poor ergonomic setup in a previous office-based employment many years ago. She reported, however, this was not an accepted worker’s compensation claim but was said to be psychosomatic. She reported that the shoulder condition was much the same as it had been pre-accident.
291 The plaintiff reported that she had no continuing physical limitations as a result of the accident. She reported some soreness across her shoulders but her right hand been sore for many years and she felt that the soreness was probably a little worse due to increased tension resulting from her emotional-psychological state at the present time. It was noted the plaintiff had a full range of movement in the shoulder but reported inability to hold anything above shoulder height.
Wage records
292 In 2010-2011, the plaintiff received gross payments of $13,803. The following year, she received gross payments of $6,132.
Overview
293 The preliminary issue in this application is whether the plaintiff suffered injury to her right shoulder in the accident.
294 The plaintiff has described how, in the accident, whilst a front-seat passenger, she turned to her right to stabilise her children, who were seated in the rear of the car.
295 The main thrust of the defendant’s submission was that there was very little reference to any right shoulder problem in the early days after the accident and that the condition that was subsequently treated by surgery in 2012 was not related to the accident.
296 However, taking into account all the evidence, I am satisfied that the plaintiff suffered an injury to her right shoulder in the accident, although she did not report a specific injury immediately after the accident to the ambulance service, Geelong Hospital or on the initial attendance with the general practitioner when she reported left shoulder pain.
297 I accept the focus of early attendances on the general practitioner was on psychological issues; however, in July 2006, the plaintiff reported aching to her shoulders, with the right being worse.
298 Right shoulder pain was discussed with the occupational therapist who attended the plaintiff’s home for an assessment in November 2006, although the plaintiff denied having given the history recorded by her in a number of significant respects.
299 I accept the plaintiff did not have any ongoing problems from a right shoulder complaint which she suffered some fifteen years before the accident and mentioned in her affidavit. There was no evidence of any treatment undertaken by her around the time of the accident nor of the plaintiff having any restrictions on her farm or daily activities.
300 Since the accident, the plaintiff has consistently described to examiners a burning pain in her right scapula. She confirmed in the witness box that this was the site of her right shoulder pain.
301 In May 2008, the plaintiff reported significant ongoing right shoulder pain and the ultrasound that was ordered showed thickening of the supraspinatus in keeping with tendinopathy and thickening of the subacromial bursa in keeping with bursitis. It was noted this was associated with impingement to abduction. The cuffs elsewhere were intact with no further abnormality.
302 When Dr Grave first saw the plaintiff in October 2008, one of her complaints was right shoulder pain of a burning type pain in the scapular region, causing problems with overhead activities. The plaintiff reported some benefit from an injection into her shoulder the previous month and then had a very good range of motion.
303 Dr Graves reported the plaintiff’s right shoulder pain escalated at times and Lyrica was prescribed for the burning pain in November 2008. The plaintiff then had another shoulder injection and underwent injections in February 2009 to the trapezius and levator scapulae.
304 On 6 August 2009, the plaintiff reported sharp pain in her right shoulder and an MRI scan was organised in December 2009. When Dr Grave last saw the plaintiff in March 2010, her shoulder condition was unaltered and he diagnosed a Chronic Pain Syndrome with neuropathic pain.
305 In August 2009, Dr Joyce reported the plaintiff had undergone cortisone injections in her right shoulder which gave short-term relief of chronic right shoulder pain. The Depo-Medrol injections were undertaken in late 2008 and early 2009 following findings of restricted movement and impingement.
306 Dr Johnson wrote to the defendant in March 2012, noting it may recall, by reference to the plaintiff’s clinical notes, that since being injured, she had suffered continuously from right shoulder pain in addition to her thoracic spine neck and sternum.
307 Mr Kierce is the only practitioner of the view there is no causal relationship between the accident and the plaintiff’s need for surgery in 2012. However, his reports are at times confusing, contradictory and lack detail as to the grounds for his opinion.
308 On initial examination in May 2010, Mr Kierce found tenderness and reduced mobility of the right shoulder. The plaintiff told him that she had difficulty with overhead activities.
309 Mr Kierce then concluded there was a soft tissue injury to the neck and right shoulder from the accident and that the plaintiff continued to suffer right shoulder and neck pain and right arm and chest pain which had arisen from transport injuries. Yet, he then went on to say that the injuries no longer had an organic basis, because there was no objective physical evidence of significant abnormalities.
310 Mr Kierce then noted that the plaintiff’s condition was magnified by her psychological state. He did not, however, explain how the basis of the plaintiff’s condition had changed.
311 The only investigation available to Mr Kierce at that time was the report of the October 2009 MRI scan where it was noted there was possible subacromial bursitis. He has never seen the 2008 ultrasound and he had not then seen the December 2009 MRI.
312 On examination in February 2011, Mr Kierce found tenderness over the anterior aspect of the right shoulder joint itself and over the anterior aspect of the right rotator cuff. The plaintiff complained of a burning type pain.
313 As restriction of motion of both shoulders was similar, Mr Kierce concluded any shoulder condition was constitutional and, in that regard, the plaintiff was limited in her lifting ability. He thought the plaintiff’s symptoms were not supported by physical examination and confirmed that she had now recovered from any accident injury.
314 On the last examination in May 2013, Mr Kierce had available the 2012 investigations and was made aware of the December 2009 MRI. He then thought the plaintiff may have suffered soft tissue injuries in the accident (contrary to his original opinion) and diagnosed a Chronic Pain Syndrome and capsulitis following the recent surgery.
315 Without offering any real explanation, Mr Kierce concluded that the 2012 MRI report was not consistent with the plaintiff having chronic right arm pain since the accident. He expressed surprise that a tear was found on surgery, as the very sensitive MRI has spoken only of an intrasubstance delamination and not of a definite tear. He did not comment on Mr Byrne’s explanation of the presence of a rotator cuff tear in 2012 when one was not apparent on investigations in 2009.
316 Mr Kierce concluded that if the plaintiff’s right shoulder had been injured in the accident, the plaintiff would have had significant objective signs of injury, both on clinical and medical imaging studies.
317 Treating surgeon, Mr Byrne, however, had no doubt the plaintiff’s condition and need for surgery was accident related.
318 Mr Byrne’s first examination in March 2012 raised the possibility of an insubstance delamination tear in the supraspinatus tendon. This was confirmed on MRI, and he decided to operate and also assess the rotator cuff for repair. A tear was then found on surgery.
319 Mr Byrne was surprised there was a legal issue, as mechanism of the injury was totally in keeping with the accident, and he noted the plaintiff’s condition had not been investigated finally before being sent to him.
320 Mr Byrne noted that whilst no tear was seen on the December 2009 MRI scan of the right shoulder, it was reported there was an irregularity in the supraspinatus tendon compatible with tendinosis or intrasubstance degenerative change. Mr Byrne noted a subsequent MRI scan performed by him revealed a progression of the MRI changes in the supraspinatus tendon with now intrasubstance delamination tearing noted.
321 Mr Byrne thought an injury can occur to the supraspinatus tendon that can progress over time. He noted, initially, the tendinosis or altered signal seen on MRI is reported, but in some cases is missed.
322 Mr Byrne believed the mechanism of injury of the accident was the cause of the plaintiff’s shoulder complaint and that her case should be accepted under the circumstances.
323 Mr Schofield shared this view.
324 On examinations, Mr Schofield was consistently told of right scapular pain and he found shoulder tenderness when he examined the plaintiff. He thought the plaintiff was genuine in her complaints and, in 2011, still attributed her condition to the accident.
325 Following examination in July 2012, when there was right shoulder tenderness and a positive impingement test, Mr Schofield thought the right shoulder pathology requiring surgery was consistent with the accident. Having seen the operation report, Mr Schofield confirmed the plaintiff’s condition was likely to have occurred as a result of the accident
326 Mr Kossmann noted the plaintiff had continuously complained about right shoulder pain and movement restriction since the accident and his view was the injury had caused it. He thought the plaintiff had not recovered from those injuries.
327 Taking into account the plaintiff’s ongoing right shoulder complaint from soon after the accident and her treatment in relation thereto, I am satisfied her present condition is accident related.
328 The plaintiff has consistently complained of pain in the same site to all examiners, and her treating doctors have accepted that complaint and the need for surgery are accident related.
329 The lack of reference to a tear on earlier investigations has been explained by Mr Byrne and his view in this regard has not been commented upon by Mr Kierce.
330 Whilst there has been a good range of movement on many examinations, tenderness over the shoulder joint has been reported on a number of occasions, including such a finding over the right rotator cuff by Mr Kierce in February 2011.
331 Whilst finding a full range of movement in 2012, Mr Schofield found a positive impingement test.
332 The 2008 ultrasound noted impingement to abduction, although impingement tests negative until 2012.
333 Although they do not address the issue in similar detail to Mr Byrne, both Mr Schofield and Mr Kossmann accept the plaintiff’s present shoulder condition is accident related.
334 Mr Byrne did not have any reservations about the accident being causative of the plaintiff’s present shoulder condition. I prefer his view to the somewhat unclear view of Mr Kierce, as Mr Byrne is the operating surgeon, and also because he has explained the absence of a tear on earlier examination.
335 In these circumstances, I do not accept that Mr Byrne is “drawing a long bow” in relating the plaintiff’s condition to the accident. Accordingly, I am satisfied that the plaintiff’s shoulder condition is accident related.
Consequences
336 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[35]
“… 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.”
[35](2010) 31 VR 1 at paragraph [12]
337 There was no real attack on the plaintiff’s credit in this case. There was no surveillance film or other evidence challenging the plaintiff’s evidence of her pain and restriction. The plaintiff’s husband’s affidavit corroborating her evidence was not challenged.
338 Whilst Mr Kierce found psychological factors in the plaintiff’s presentation on occasion, no doctor found embellishment or exaggeration on examination. I accept the plaintiff’s condition is organically based despite Dr Graves and Mr Byrne’s earlier view there was a Pain Syndrome.
339 Counsel for the defendant conceded there was no doubt there had been some inference with the plaintiff’s activities from her shoulder condition and it was submitted it should be considered what is retained.[36] The plaintiff could do housework, bookwork, look after children and do canteen work. It was submitted that was a picture of very busy person who, herself, says she has to be busy doing something. If her impairment was serious, it was submitted she would be unable to engage in that level of activity.
[36]T114
340 An assessment of the plaintiff’s pain involves, inter alia, what she says about her pain.[37]
[37]Haden Engineering Pty Ltd v McKinnon (supra) per Maxwell P at paragraph [11]
341 The plaintiff has complained of right scapular pain and a burning sensation in her right shoulder for many years after the accident.
342 The plaintiff’s right arm movement is restricted, particularly in overhead activity, such as hanging up the washing and shampooing her hair. This restriction of movement is a significant issue for a right-hand dominant person in performing everyday activities. She also has problems lifting, as Mr Kierce noted in his earlier examinations.
343 In terms of treatment, the plaintiff still takes Tramadol, Panadol Osteo and Nurofen tablets. As Dodds-Streeton JA noted in Kelso v Tatiara Meat Co Pty Ltd,[38] chronic unremitting pain requiring medication must raise the real prospect of a very considerable consequence.
[38](2007) 17 VR 592 at paragraph [199]
344 The plaintiff has undergone an extensive range of treatment, including a number of cortisone injections, physiotherapy and hydrotherapy, and more recently, several surgical procedures, the latest having resulted in some improvement.
345 The plaintiff has difficulty sleeping because of shoulder pain and she is exhausted at the end of the day and has to often go to bed at 7.30pm to rest.
346 The plaintiff retains the ability to do most of her pre-accident activities but her capacity to do so without pain is limited.
347 In the early days after the accident, the plaintiff was able to do a bit of milking but she and her husband had to employ a full-time milker to assist on the farm. I accept that one of the reasons the dairy farm was ultimately sold was the plaintiff’s inability to help out. Farming was her dream and lifestyle since purchasing the farm in 1999. Whilst her husband’s injury would also have contributed to the decision to sell the farm, I accept the plaintiff’s inability to play a hands-on role was also a contributing factor.
348 The plaintiff is no longer able to engage in home renovations and is unable to do physical tasks of the kind that she undertook setting up the dairy before the accident.
349 Whilst the plaintiff’s shoulder injury significantly impacts on her ability to do physical work, I am not satisfied it impacts greatly on her capacity to undertake office/administrative tasks and as she said, she left the job at Struck because of a dispute with the manager.
350 It is clear from the plaintiff’s evidence that she is presently engaged in home duties and not in the workforce, as her husband wishes her to stay at home and look after their family. Whilst the plaintiff undertakes the housework, she does so because she has to. I accept she experiences pain, particularly with heavier activities, and she uses her non dominant arm to perform many tasks.
351 Further, the plaintiff is forced to rely on assistance from even her younger children in tasks she would otherwise normally do.
352 The plaintiff still does various activities with her children but she is unable to actively participate in more strenuous activities and sporting activities. As a woman with a strong sporting background as a young person, she would prefer to be more of a participant in her children’s activities, not just a spectator. At her relatively young age, the plaintiff should be able to be out there having a kick or throwing a ball and not just occasionally watching or taking the children to sporting events.
353 In considering the plaintiff’s application, I am entitled to take into account the expected emotional consequences of her physical impairment.[39] I accept that the plaintiff gets frustrated and upset by her ongoing right shoulder pain and the limitations it places upon her in performing her many day to day activities.
[39]Richards v Wylie (supra) per Winneke P
354 In my view, the consequences of the plaintiff’s impairment just meet the narrative test; however, I am not satisfied, on the limited evidence available, that her impairment is long term.
355 There is little medical opinion as to the plaintiff’s prognosis.
356 Mr Schofield last examined the plaintiff before any surgical procedures had been carried out.
357 Mr Kierce and Mr Kossmann both saw the plaintiff after the final surgery in March 2013.
358 Mr Kossmann saw the plaintiff a month later. He then commented in general terms, noting the plaintiff was still suffering from pain and movement restriction in her right shoulder in which she seemed to have developed osteoarthritis. He thought she required continuing conservative treatment and there was a moderate likelihood of further surgery.
359 In May 2013, Mr Kierce thought the plaintiff would gradually recover from adhesive capsulitis.
360 When the plaintiff last saw Mr Byrne on 5 March 2013, only three weeks after the last surgery, he then thought surgery had improved the plaintiff’s shoulder situation and her pain had improved significantly. However he commented that frozen shoulders can be quite difficult to resolve. It will take time and possibly further hydrodilatations to try and resolve the plaintiff’s range of motion issues.
361 The most recent report from the plaintiff’s general practitioner Dr Johnson is now over a year old. He reported on 3 September 2012, simply noting in relation to her shoulder that shoulder surgery had been undertaken but the plaintiff continued to have neck, thoracic spine and anterior chest discomfort.
362 In April 2013, treating physiotherapist Mr Webb reported that whilst the plaintiff’s shoulder remained painful, its function was progressing quite well. The plaintiff agreed this was the case. Further, the plaintiff admitted in cross examination there has been an improvement after the last surgery and she is back doing the housework and things of that nature.
363 Given the paucity of medical evidence as to the plaintiff’s prognosis and the accepted improvement in her condition following the most recent surgery, I not satisfied any impairment to her shoulder is long term.
364 Accordingly, the plaintiff’s application is dismissed.
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