Bachos v Storden Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-10-06010

BETTY BACHOS	Plaintiff
v
STORDEN PTY LTD	First Defendant
and
PRIMEWARD PTY LTD	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 5 and 6 March 2012
DATE OF JUDGMENT:	20 December 2012
CASE MAY BE CITED AS:	Bachos v Storden Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 1745

REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right arm injury (including right shoulder, right hand and wrist) – working successively for the two defendants performing the same duties – paragraph (a) of definition of serious injury – seeking leave to bring common law claim for “pain and suffering damages” and “pecuniary loss damages” – whether condition compensable – capacity for work
Legislation Cited: Accident Compensation Act 1985 (as amended)
Cases Cited: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Shock Records Pty Ltd v Jones [2006] VSCA 180; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Giankos v SPC Ardmona Operations Limited [2011] VSCA 121.
Judgment: Leave granted to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages against each defendant for a right arm injury suffered by her during the course of her employment with each of the defendants.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison SC with Mr J Valiotis	Tasiopoulos Lambros & Co
For the First Defendant	Mr A W Middleton	Lander & Rogers
For the Second Defendant	Mr T J Ryan	Thomsons Lawyers

HIS HONOUR:

Introduction

1 By way of Originating Motion filed on 17 December 2010, Panagioata (Betty) Bachos (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 as amended (“the Act”) to bring common law proceedings to recover damages for injury to her right arm (the right shoulder/right hand/right wrist) suffered during the course of her employment with Storden Pty Ltd (“the first defendant”) and Primeward Pty Ltd (“the second defendant”).

2 It was common ground amongst the parties that the plaintiff was employed by the first defendant from 28 December 2005 to April 2006 and by the second defendant, from approximately 1997 until 27 December 2005.

3 The plaintiff alleges that her employment with the second defendant from 20 October 1999 up until 27 December 2005 and in particular on 23 August 2005, when she suffered shoulder pain as a result of a specific incident lifting an industrial vacuum cleaner upstairs contributed to the right arm injury. She further alleges that her employment with the first defendant from 28 December 2005 to April 2006 aggravated such right arm injury.

4 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act against both the first and second defendants.

5 The plaintiff gave evidence and was cross-examined. All parties tendered various documents.[1]

[1]See Annexure A

Relevant Legal Principles

6 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the right arm injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]

[2]See s134AB(19)(a) of the Act

7 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:

“serious injury means─
(a)permanent serious impairment or loss of a body function … .”

8 The part of the body said to be impaired for the purposes of paragraph (a) is the right arm (the right shoulder/right hand/right wrist).

9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:

(a) the right arm injury suffered by her arose out of or in the course of or due to the nature of her employment with one/or both defendants on or after 20 October 1999;[3]
[3] See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [11]

(b) the right arm injury, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
[4] See Barwon Spinners (op cit) at [33]

(c) “the consequences” to the plaintiff of the right arm injury in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked, and as being at least very considerable”.[5]

The test for “serious” is sometimes referred to as the “narrative test”.

[5]See s134AB(38)(b) and (c) of the Act

10 In addition, in relation to “pecuniary loss consequences”, the plaintiff has a specific burden[6] to establish:
[6]See s134AB(19)(b) and (38)(e) of the Act

(a) that as at the date of hearing she has a loss of earning capacity of 40 per cent or more as a result of the right arm injury, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7] and

(b) that after the date of hearing she will continue permanently to have a loss of earning capacity as a result of the right arm injury that will be productive of a financial loss of 40 per cent or more.[8]

[7]See s134AB(38)(e)(i) of the Act

[8]See s134AB(38)(e)(ii) of the Act

11 In determining the application, the Court:

(a) must not take into account psychological or psychiatric consequences of the right arm injury for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken account of for the purposes of paragraph (c) of the definition of “serious injury”;[9]
[9]See s134AB(38)(h) of the Act

(b) must make the assessment of “serious injury” at the time the application is heard;[10]
[10]See s134AB(38)(j) of the Act

(c) must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[11]
[11]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 586 at [89]-[92]

(d) notes that s134AB(38)(b) provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.

In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” damages only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”;[12]

(e) notes that it has been observed that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[13]

[12]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, and in particular at [60]-[64]

[13]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]

The Issues

12 Counsel for the first defendant informed the Court that the first defendant did not admit injury and conceded that there is “possible aggravation … [of] … symptoms in that period of employment”. However, much reliance would be placed on two of the plaintiff’s medical practitioners, Dr Clayton Thomas and Mr Kevin King, who, after a review of the material, attribute no injury during the period of employment with the first defendant.

13 Counsel for the first defendant did advise the Court that his client had accepted a claim under s98C of the Act for certain aspects of the right arm injury and had paid for the cost of surgery undertaken by the plaintiff. However, insofar as there may have been any “injury”, such injury consisted of an aggravation of a pre-existing condition and the extent of such aggravation did not give rise to a “serious injury” within the meaning of the Act.

14 Counsel for the second defendant informed the Court that the second defendant denied that the plaintiff suffered any injury arising out of or in the course of her employment with it. In any event, the second defendant alleges that any condition now suffered by the plaintiff is “diffuse and largely non-organic”. To the extent that the present condition has any organic consequences, such consequences would not satisfy the narrative test.

The Evidence of the Plaintiff

15 The plaintiff gave evidence that she is an invalid pensioner and had sworn two affidavits – one on 2 June 2010, and the other on 4 November 2011.[14]

[14]See Exhibit 1 at pages 1-12 Plaintiff’s Court Book (“PCB”). The plaintiff swore two affidavits dated 2 June 2010, one directed to the first defendant and the other to the second defendant. Other than the names of the defendants, the affidavits are identical.

16 In paragraph 17 of her first affidavit, the plaintiff swore that “from memory I have not driven a car since the operation”. She wished to vary that evidence to assert that she had driven a couple of times since October 2006 over distances of approximately 250 metres. Subject to that change, the plaintiff was happy with the “accuracy” of such affidavits.[15]

[15]T 21, L4-5

17 By way of her first affidavit, the plaintiff gave the following pertinent evidence:

· She is a fifty-three-year-old married woman who has two independent stepsons.

· Prior to commencing employment with the second defendant in 1997, she had undergone a short receptionist course in 1978 and had worked for two years in the 1990s as a machinist in a textile factory.

· The second defendant owned and or operated several townhouses, units and studios known as “Punt Hill” situated in South Yarra.

· She commenced work as a cleaner with the second defendant, working from 7.30 am to 3.30 pm five days a week.

· She is right handed.

· In South Yarra, there were eight townhouses, and over the road, approximately four units, and then a block away, eighteen to twenty one-bedroom units. She describes her duties in the following terms:

“In the mornings myself and another cleaner would be required to report to the office in Punt Road and fill up a station wagon with cleaning fluids, mops and other cleaning equipment, together with confectionary for the flats, together with sheets, towels and other linen. Every three days or so we would also be required to put in a mattress or sometimes even a bed as well as a mattress. This was because the townhouses, units and studios were occupied for different periods of time by different people, and sometimes an extra bed had to be placed in the townhouse, unit or studio as part of the ‘changeover’.
At the units I would regularly be required to go downstairs and get a mattress from the storeroom and take it upstairs. This was a very difficult task for me. On weekends I would be doing my cleaning and all my jobs of my own including the lifting and carrying of any mattress or beds. This would be every two weeks or so. Sometimes I would have to change a mattress three times on a weekend.”[16]
[16]See Exhibit 1 at pages 1-2 PCB

· She would normally clean the townhouses first, then the units and then the studios. Such cleaning work involved vacuuming, cleaning the toilets, wiping the bath and basins. Furthermore, all units had to be mopped every day and there was a need to regularly clean windows and mirrors and the cupboards on a changeover.

· The work required a constant, repetitive and strenuous use of her right arm.

· In or about early to mid-2003, she commenced to suffer from pain in her right shoulder and elbow and as time went on it extended into numbness in her fingers and pain in her right hand and wrist. Sometimes she had neck and left shoulder pain.

· Over time, her right arm symptoms got worse during the working day, causing her to complain to her doctor from time to time during 2003 and 2004. She did not report any injuries at work (although she did take some sick leave) because she was concerned that she might lose her job.

· On 23 August 2005, she suffered “acute pain in my right shoulder and arm” when she was required to pick up and carry a vacuum cleaner up the stairs of the units. She attended her local general practitioner, Dr Dermitzoglou, who put her off work for several days and thereafter, she continued to receive treatment from him to November 2005, during which time she had further time off work. She was supposed to return to light duties but this never happened.

· In early 2006, her general practitioner again asked for light duties and she was referred to another set of units and townhouses in St Kilda where she performed, she believes, about two or three months’ full-time work [that work was with the first defendant].

· She describes her new work in the following terms:

“This work was heavier than the previous work. My shoulder, elbow, wrist and finger symptoms kept getting worse. I saw my doctor in early March 2006 and I reported the worsening of my symptoms at work. On or about 21 March 2006 an incident occurred when I was lifting linen bags and suffered a further aggravation of my right shoulder and arm.”[17]
[17]See Exhibit 1 at pages 3 PCB

· She ceased work on or about 21 March 2006 and has not returned to work since that date.

· In or about March or April 2006 she was referred by her general practitioner to the hand surgeon, Mr Tham. She was suffering from “significant right elbow pain and numbness and pain in the wrist and hands”. She also suffered from some pain in the left wrist and hand region because she was protecting her right hand.

· On 9 October 2006, Mr Tham performed a right carpal tunnel release and an ulnar release.

· After the surgery, the pain in her elbow and hand remained much the same and she continued to have aching and a limitation of movement in her right shoulder region.

· In or about 2007, she was offered light duties by the second defendant, which involved cleaning mirrors, dusting and assisting other cleaners. She was not fit to perform those duties and her general practitioner certified her unfit to perform them.

· In early 2009, she was referred by her general practitioner to the orthopaedic surgeon, Mr Khan, who in turn referred her to the physician, Dr Peter Blombery. Dr Blombery has continued to treat her.

· Since approximately 2006, she has also been treated on a regular basis by a hand therapist, Ms Dianne Hedin, who she sees every two to three weeks.

· She complains of the following symptoms (as at the date of the first affidavit):

“(a)pain on the outside and underneath the right elbow. It is constant but it is improved a little with rest. It hurts more with activity. I suffer from constant pain in the wrist and numbness and tingling in the fingers. The pain in the elbow is worse than the pain in the wrist. I suffer from pain in the top and back of the right shoulder with limitation of movement in the shoulder. I have great difficulty performing any activity requiring my right arm to be placed above shoulder height. I wash my hair with my left hand and I drink coffee primarily with my left hand but sometimes with my right. I can dress myself but it takes a long time. Sometimes my husband helps me.
(b)I wear a splint for my wrist at night and often during the day. I usually do not wear it when I go shopping with my husband. I do not shop by myself although my husband and I have always shopped together.
(c)…
(d)I have trouble sleeping because of the pain, particularly in my elbow and hand, it seems to never go away.”[18]
[18]See Exhibit 1 at pages 3-4 PCB

· She was taking large amounts of Panadeine Forte until about a year ago but had to cease because of side-effects. She is now prescribed Panamax, 500 milligrams, by her general practitioner, and she takes six to eight of these tablets per day. She also takes Tramadol about three times in a 24-hour cycle, and also Endep, at least one, sometimes two a night. Dr Blombery, who she sees every one or two months, is also prescribing Valproate.

· The plaintiff makes reference to an Incident Report dated 23 August 2005 in respect of the vacuum cleaner incident, an Incident Notification Report in respect of the injury to her right arm and shoulder when lifting linen bags into a trolley on 21 March 2006, an undated Incident Injury Report in respect of injury to her right shoulder, arm and wrist occurring over a period of four years, a letter from the Punt Hill Group acknowledging notification of the injury on 21 March 2006, a copy of a WorkCover Claim Form signed by her on 5 April 2006 claiming injury over four years aggravated on 21 March 2006, a letter from Mr Tham’s secretary dated 13 July 2006 whereby the WorkCover insurer accepted liability for the surgery which took place on 9 October 2006, and a letter from the representative of the first defendant accepting liability pursuant to s98C of the Act for a right shoulder, elbow, wrist, hands/fingers and psychiatric injury.

· Her claim for compensation was accepted and she was paid weekly payments of compensation for two years until June 2008, when they were terminated, after which she has been in receipt of a Disability Pension.

· She attempts to perform housework but finds it “very hard”. She is irritable and depressed and socialises far less because of the pain and distress.

18 By way of her second affidavit, the plaintiff gives the following pertinent evidence:

· Since her first affidavit, she has moved to Murray Bridge in South Australia, where she lives with her husband.

· Her injury has not improved since swearing her first affidavit and she continues to have constant and severe pain in her right elbow, shoulder, hand and wrist. She also has numbness and pins and needles in her right hand and fingers and her right hand is weaker than her left hand.

· She does have pain in her left hand which she believes is due to overuse of the left hand because of her right arm symptoms.

· She still has trouble sleeping and often wakes up during the night due to pain and discomfort. She usually takes medication at night to help relieve the pain and it takes a while for her to get back to sleep.

· She has not worked since her earlier affidavit and continues to receive the Disability Pension.

· She attends her general practitioner, Dr Arthurson, once a month, and also sees a physiotherapist, Ms Anna Barker.

· She wears a right elbow support and a right wrist support and currently takes Panamax, Tramadol, Endep and Effexor, and in the past has taken Panadeine Forte, Lyrica, Valproate, Solone and Prednisolone.

· Right-handed tasks cause pain and in particular, overhead tasks cause pain. Sometimes she has flare-ups from pain when she is doing nothing at all and simple things such as holding and lifting objects, cutting food, getting dressed and washing, drying and cutting her hair can cause pain.

· She lives on a large block and cannot do gardening and help look after the property.

· She has difficulty cooking and now keeps that to a minimum.

· Doing housework aggravates her right arm injury and she tends to do lighter housework tasks with her left hand only. Such tasks, such as cleaning, ironing, making beds and putting washing on the line are very difficult.

· Her ability to do shopping is reduced and she takes her husband with her to assist.

· Her relationship with her husband has been affected because of the injury and she relies on him for assistance with most things.

· She is bored, frustrated and upset because of the injury, and her social life is now very limited.

19 Under cross-examination by the first defendant, the plaintiff gave the following pertinent evidence:

· She accepted that she had symptoms in her right shoulder, arm and wrist as early as 2000.

· Her left shoulder started getting worse when she could not use her right shoulder. In particular, the plaintiff gave this evidence in relation to the development of her symptoms:

Q:     “Over the period of time following that time, when you first referred to it in your affidavit in 2003, your symptoms have gradually been increasing, is that right?---
A:     Yes, but when I picked up the vacuum cleaner … .
Q:     That seems to be the triggering factor for everything?---
A:     Yes. …
Q:     It was about 2005 that your symptoms became set and constant from then on?---
A:     Yes, that’s right.
Q:     Up until that time, intermittent from time to time?---
A:     Pardon?
Q:     Up until that time they had been intermittent, occurring occasionally, getting worse, getting a bit better. Is that the situation before 2005 and the lifting of the vacuum cleaner?---
A:     Yes, yes.
Q:     You would get pain in your arms, your wrist and your shoulder from time to time but it would ease off from 2005 on, would it be fair to say that your condition in your arm and your shoulder and your wrist had been pretty constant and getting worse since that time?---
A:     Yes. Yes, that’s right.”
HIS HONOUR:
Q:     “This is the episode you described, ‘On 23^rd August I suffered acute pain in my right shoulder and arm when I was required to pick up an carry a vacuum cleaner up the stairs of the units’, is that correct?---
A:     Yes, that’s right.”[19]
[19]T 22, L3-29

· After the incident on 23 August 2005, she had various periods of time off work, right through until the end of November 2005.

· When she returned to work in November 2005, she was certified to go back on modified duties and in December 2005, she was transferred to the St Kilda apartments.

· She was given no reason why she was sent to the St Kilda apartments or taken off the work at the South Yarra apartments.

· She was doing basically the same work at the St Kilda apartments but she was finding the work hard because of the symptoms in her arms and because there was a “heavy trolley in St Kilda”.

· Putting the trolley in the lift was hard because there was a little step onto the lift and you had to lift it up. The trolley contained the sheets and bedding and towels for the units.

· Since the incident on 23 August 2005, she has always had pain in her shoulder, right arm and wrist.

20 Under cross-examination by counsel for the second defendant, the plaintiff gave the following pertinent evidence:

· Since the operation in 2006, her symptoms have progressively worsened over the past five years.

· She has problems affecting her left wrist, hand and arm and asserts that this is because she cannot use her right arm.

· She has problems with her right shoulder and from time to time problems with her left shoulder and also her neck.

· When she attends a clinic at Mt Barker, South Australia, her husband drives her from Murray Bridge to Mt Barker, which is about 40 kilometres away.

· She accepted that on or about 28 December 2005, she was moved from housekeeping duties at premises called “Stanton”.

· She accepted that she did not make a claim for compensation against the second defendant.[20]
[20]See Exhibit A

· The plaintiff accepted that when she ceased work in March 2006, she gave Certificates of Incapacity in respect of medical examinations on 22 March 2006 and 17 April 2006.[21]
[21]See Exhibit B

· She went back on so-called “light duties” for about a week and finally ceased work on or about 18 April 2006.

· She moved to Murray Bridge in 2010 just to be “closer to family”.

· She attends Dr Arthurson in South Australia and he provides certificates and also gives prescriptions for Endep, Tramadol and Panamax.

· She takes three or four Tramadol a day, one Endep at night and sometimes two if she is woken up during the night. She also takes one for depression (she could not remember the name of that tablet) and also takes six to eight Panamax a day.

· Dr Arthurson has not sent her to any specialist but has referred her to a psychologist.

· She has also been diagnosed with a uterine problem with fibrocystitis and she thinks, although she is not sure, that the Endep may have been increased since she was informed of that condition.

The Medical Treatment of the Plaintiff

21 The plaintiff has undergone the following radiological studies and special investigations:

(a) A plain x-ray of the right wrist and an ultrasound of the right wrist undertaken on 2 May 2001.[22] The radiologist concludes, in relation to the x-ray:
[22]See Exhibit Y at page 2 SDCB

“No bony abnormalities of the wrist were seen. All carpal bones were intact. The distal radius shows a slight cleft in its articular margin but this could be the result of old trauma or it may be congenital. The radio-carpal joint space and surrounding soft tissues were normal.”

The radiologist, in relation to the ultrasound concluded:

“All flexor and extensor tendons were normal. No abnormal fluid collections were noted. No effusions were seen and the skin and subcutaneous tissues were normal.”

(b) Ultrasound of the right shoulder undertaken on 3 April 2006.[23] The radiologist concludes:
[23]See Exhibit D at page 3 SDCB

“The examination did not reveal the presence of either tendonitis, bursitis or a tear in relation to the supraspinatus tendon. Ultrasound examination was considered to be within normal limits.”

(c) Electromyographic testing of both hands on 8 June 2006.[24] Dr Kranz concluded:
[24]See Exhibit D at page 4 SDCB

“The findings point to a degree of median nerve compression in the carpal tunnel bilaterally, slightly worse on electrodiagnostic grounds on the right. There is also a degree of ulnar nerve involvement at the right elbow.”

(d) Further electromyographic testing undertaken by Dr Kranz on 26 July 2007.[25] Dr Kranz concludes:
[25]See Exhibit 2 at page 50 PCB

“Motor parameters were normal now including conduction across the elbow segment of the ulnar nerve on the right.
Sensory parameters were normal.
Though median and sensory latency was normal in absolute terms, there is still significant internerve latency difference between median and ulnar nerves. … This represents some improvement since the pre operative study.”

(e) Ultrasound of the right shoulder undertaken on 5 November 2008.[26] The radiologist concludes:
[26]See Exhibit 2 at page 51 PCB

“The bicep tendon is intact with normal bicipital sheath. All the rotator cuff tendons are intact without tendon tear or any other abnormality. Normal subacromial/subdeltoid bursa.
Comment:
Normal ultrasound findings.”

(f) An x-ray of the right shoulder, right elbow and right wrist, together with ultrasounds of the right shoulder and right elbow all undertaken on 16 January 2009.[27] The radiologist concludes:
[27]See Exhibit 2 at page 52 PCB

“Xray Right Shoulder
Mild arthropathic changes involve the AC joint. The glenohumeral joint is normal. The humerus is normal.
X-ray Right Elbow
The radiographic appearance of the right elbow is normal. No joint effusion is demonstrated. The bony appearance is normal.
X-ray Right Wrist
Mild degenerative changes involve the first CMC and the STT joints. The bony appearance of the carpus, and the distal radius and ulna is otherwise normal.
Ultrasound Right Shoulder
The supraspinatus tendon demonstrates mild changes of tendonosis. The infraspinatus, subscapularis and teres minor tendons are normal. The longhead of biceps tendon is normal.
The bursa is mildly thickened. Minimal bursal bunching occurs on abduction.
The patient’s dynamic range is markedly decreased by this bursal impingement.
Conclusion:Supraspinatus tendonosis. Bursal impingement restricting abduction.
Ultrasound Right Elbow
The common extensor and flexor tendons are normal. There is no evidence of lateral epicondylitis. No joint effusion is demonstrated.
Conclusion:No evidence of lateral epicondylitis.”

(g) Mr King, in his report dated 3 November 2011,[28] notes a plain x-ray of the right elbow of 1 August 2011 which he notes reveals no significant abnormality.

[28]Exhibit 2 at page 123 PCB

22 The plaintiff relies on various medical reports from her then treating general practitioner, Dr J Dermitzoglou.[29] Dr Dermitzoglou reports that the plaintiff had been attending the Dandenong Medical Clinic since 5 February 2001.

[29]See Exhibit 2 at pages 68-77 PCB

23 Dr Dermitzoglou further reports that the plaintiff consulted him on 23 August 2005 complaining of right shoulder pain after lifting a vacuum cleaner at work. Examination at that time revealed right shoulder pain on abduction with no neurological signs. A muscular strain was diagnosed, and she was given a WorkCover Certificate for several days (although on her evidence not used).

24 The plaintiff returned to Dr Dermitzoglou on 12 September 2005, 27 October 2005 and 3 November 2005 complaining of ongoing shoulder pains. Dr Dermitzoglou comments that the plaintiff had episodes of rest from work and on 4 November 2005, she returned to work performing lighter duties.

25 On 6 March 2006, the plaintiff again consulted Dr Dermitzoglou complaining of right shoulder pain and at this time also complained of right elbow pain, right hand pains and tingling of the fingers of her right hand.

26 Dr Dermitzoglou arranged for the plaintiff to undergo an ultrasound of her right shoulder which was reported as normal.

27 The plaintiff did attempt returning to work performing normal duties but her pain continued, causing her to consult Dr Dermitzoglou again on 22 March 2006, when she complained of shoulder pains and hand pains which were suggestive of carpal tunnel syndrome. Dr Dermitzoglou referred her to the hand surgeon, Mr Tham.

28 Dr Dermitzoglou notes that the plaintiff continued unsuccessfully with light duties from 1 April 2006, but from 18 April 2006 she was issued with a WorkCover Certificate for inability to work as a result of disabling hand and shoulder pains.

29 Dr Dermitzoglou notes that Mr Tham organised a nerve conduction study and thereafter, on 9 October 2006, performed a right carpal tunnel release and a right cubital tunnel release.

30 After the surgery, the plaintiff continued to complain of ongoing hand and elbow pains and right hand finger tingling as before, and experienced those pains during the day and night. Dr Dermitzoglou prescribed strong pain relief and he noted that the plaintiff developed “stress and melancholia” due to the lack of progress of her symptoms and her inability to work. Mr Tham advised further surgery but the plaintiff was reluctant to proceed due to the failure of the first procedure.

31 In his report dated 15 August 2008, Dr Dermitzoglou states:

“1- Wether [sic] the injuries are related to the client’s employment with Storden Pty. Ltd.
I feel the injuries incurred by Mrs. Bachos are related to her … duties performed as a cleaner. Her duties involved general cleaning and changing of beds. Her shoulder injury was related to lifting of the vacuum cleaner but more importantly are her bilateral carpal tunnel symptoms and her right ulnar nerve symptoms which can be related to the duties she performed over a seven year period.
2- The relationship between the client’s current condition and employment with Storden Pty. Ltd.
Mrs. Bachos cannot continue to work as a cleaner for the current employer. Her employer would like her back but the patient cannot perform even light duties due to the ongoing pains and her inability to use her right hand.
3- The client’s current and future capacity for pre-injury work.
Mrs. Bachos cannot perform her pre-injury work duties at present and [is] unlikely to be able to perform such duties in the future due to a poor response to her surgery and her poor progress.
She has ongoing pains in her right hand, elbow and shoulder and persisting tingling of fingers of her right hand. She requires her forearm to be in a supportive sling to control her pains. She has poor hand grip and pain on arm abduction.
4- The client’s future capacity for any work.
I do not believe the patient has any capacity for any work due to the reasons given above.

5- Whether the client has suffered any psychological sequelae due to physical injury.
Her injuries have caused her significant emotional distress, anxiety and depression due to persisting pains, disability and insomnia together with the realization that she may not be able to work again.
The fact that further surgery is unlikely to help her has also added to her anxiety.
She feels useless that she cannot work and also unable to perform her normal domestic duties with ease.

6- Assessment of the pain and suffering, distress or anxiety that the injuries have caused or will cause your client.
The patient has persistent pain requiring strong pain relief.
Subsequent to the emotional impact of the injury as mentioned above she may require psychological review.

… .”[30]

[30]See Exhibit 2 at pages 69-71 PCB

32 In November 2008, Dr Dermitzoglou referred the plaintiff to the orthopaedic surgeon, Mr Michael Kahn, for further treatment.

33 In his final report dated 12 November 2009,[31] Dr Dermitzoglou notes that the plaintiff continues to have numbness affecting the fingers of her right hand, pain in her right forearm and elbow, right shoulder stiffness and pain with restricted abduction of her right arm to 85 degrees due to pain. Furthermore, she continues to wear a right wrist splint and right elbow Tubigrip bandage. He notes that she has reduced right arm extension blocked at 45 degrees.

[31]See Exhibit 2 at page 76 PCB

34 Furthermore, there is additional compensatory left shoulder pain due to increased use of her left arm subsequent to her right shoulder pain and restriction of use.

35 Dr Dermitzoglou notes that Mr Kahn in turn referred the plaintiff to Dr Blombery, who diagnosed a Pain Syndrome affecting her right upper limb and possible right frozen shoulder.

36 At that time, the plaintiff was taking Endep, 50 milligrams, Tramal, 150 milligrams and Panamax for pain. Dr Dermitzoglou continued to have the opinion that the plaintiff had no capacity for work due to pains and restricted hand, elbow and shoulder movements. Furthermore, he considered such incapacity will be permanent.

37 The plaintiff relies on a number of reports from the hand surgeon, Mr S Tham.[32] Mr Tham initially consulted with the plaintiff on 23 May 2006 on referral from Dr J Dermitzoglou.

[32]See Exhibit 2 at pages 53-63 PCB

38 The plaintiff gave a four-year history of numbness involving her right long, ring and little fingers, and that her symptoms had become “worse” over the previous two years. In particular, her symptoms were noted largely at night resulting in sleeplessness but also during the daytime with lifting and driving-type activities. The plaintiff also complained of symptoms of triggering of her right thumb. Her symptoms involved both hands, particularly her right.

39 Provocative tests for carpal tunnel syndrome were positive on the right side and negative on the left. Her right ulnar nerve was irritable at the level of the elbow with a positive compression and percussion test indicative of ulnar nerve entrapment at the elbow.

40 A nerve conduction study confirmed the presence of bilateral carpal tunnel syndrome and a degree of right ulnar nerve entrapment at the elbow. Accordingly, Mr Tham performed a right endoscopic carpal tunnel release and ulnar nerve release at the elbow on 9 October 2006.

41 Mr Tham notes that initial follow ups showed improvement but thereafter deterioration. On 2 February 2007, the plaintiff complained of persistent right hand numbness which she said was similar to her pre-operative symptoms. Follow up reviews on 20 March 2007 and 19 June 2007 showed persisting symptoms, with numbness involving the right long, ring and little fingers and pain over the medial aspect of her right elbow at the site of the previous surgery.

42 I refer to the report of Mr Tham dated 23 July 2007, wherein he sets out various questions and answers:

“1     Presence and nature of the injury.
Right and left carpal tunnel syndrome, and right ulnar nerve entrapment at the elbow. This has been confirmed electrophysiologically.
2     Relationship of the injury to the worker’s employment.
She states that she works as a housekeeper for Punt Hill Apartments in South Yarra. The relationship between the development of carpal tunnel syndrome or cubital tunnel syndrome (entrapment of the ulnar nerve at the elbow) is often difficult to establish. Very commonly there is no direct causal relationship between work and the development of either carpal tunnel or cubital tunnel syndrome symptoms. In this particular case there does not appear to be any precipitating or triggering factors that resulted in the onset of her symptoms. They are said to have occurred gradually. However she informs me that her symptoms are noted both during day and night time and the triggering factors during the day time are lifting and driving. For this reason I feel the degree of her symptoms has been precipitated by her work as a housekeeper.
3      Worker’s incapacity and pre-injury employment.
Her current symptoms would make a return to work as a housekeeper somewhat difficult as she continues to suffer with pain over the surgical site at the medial aspect of the right elbow and continues to suffer with numbness to her long, ring and little fingers in her right hand. It would be my opinion that return to work with repeated flexion/extension of the elbow and lifting type duties would further aggravate her symptoms.
4      …
5      …
6      The extent the injury is contributing to her incapacity.
Her current incapacity is directly related to her right carpal tunnel syndrome and cubital tunnel syndrome.

7 Duration of incapacity.
Despite successful surgical decompression it appears that she continues to suffer with significant symptoms. The surgical procedure was performed in October 2006. It is unlikely her symptoms will improve further.
8 Presence of pre-existing condition or injuries.
I am not aware of any pre-existing conditions to her right or left hands.

9 Existence of permanent impairment.

If her symptoms continue she may require a repeat nerve conduction study to assess the status of both her median and ulnar nerve. However follow-up nerve conduction studies are often unreliable within the first twelve months after surgical decompression.
10 …
11 Current work capacity.
She is capable of continued use of her left hand. However with regard to her right hand it would be my opinion that any activities requiring repetitive flexion/extension of the elbow or wrist, or heavy gripping type activities will further aggravate her symptoms.
… .”[33]

[33]See Exhibit 2 at pages 59-60 PCB

43 Mr Tham arranged for a further nerve conduction study which was performed on 26 July 2007, which revealed, according to him, normal sensory and motor parameters and evidence of improvement from the earlier nerve conduction study of both the median and ulnar nerves. However, median nerve provocative tests undertaken by Mr Tham on 3 August 2007 were positive and the plaintiff was complaining of persisting numbness.

44 Seemingly, the last time Mr Tham reviewed the plaintiff was on 13 October 2009 and he noted that the plaintiff complained of persistence symptoms. In a report dated 10 December 2009, Mr Tham states, in part:

“2     It appears that her symptoms were improved immediately following surgery but worsened over time with subsequent post-operative follow up. As her symptoms have not altered from two months after surgery in December 2006 to my last follow up in October 2009 it is probably unlikely that her symptoms will improve. However the cause of her ongoing symptoms have not been reflected in her post-operative nerve conduction study.
3     The relatedness of employment and carpal tunnel syndrome and cubital tunnel syndrome is difficult and there is often no direct correlation except if there is an episode of direct trauma or employment where vibrating tools is (sic) or the limbs are exposed to extremes of cold. It appears that Betty is a housekeeper and without a history of trauma none of the above applies to Betty. However there may be certain activities required of a housekeeper that may precipitate pre-existing symptoms of carpal tunnel syndrome. I have not attempted to obtain any history in the past that may link her activity as a housekeeper to the development of symptoms of carpal tunnel syndrome.
4     As I have stated in the question above, it is often difficult to determine any direct relationship between occupation and the carpal tunnel syndrome and cubital tunnel syndrome.
I cannot provide an assessment in retrospect whether employment was a significant contributing factor as this would require determination of activities that may precipitate her symptoms and whether those symptoms diminished with avoidance of the particular activities.
5     As her symptoms have not altered after more than one year of follow up it is unlikely to improve further. However the nerve conduction study does not support ongoing entrapment of the median ulnar nerves. As a result of her ongoing numbness it would be difficult to resume her work as a housekeeper.
6     As her sensibility is altered in all her fingers in the right hand, dexterity would be affected and activities which requires [sic] fine manipulation would be difficult. Her right hand should also not be exposed to the extremes of temperature or to any sharp instruments. Within the above limitations she is capable of resuming modified duties.
7     It is likely these restrictions would persist into the foreseeable future. … .”[34]
[my emphasis].

[34]See Exhibit 2 at pages 62-63 PCB

45 The plaintiff relies on reports from the orthopaedic surgeon, Mr M A Khan.[35] Mr Kahn initially saw the plaintiff on 14 January 2009 on referral from Dr J Dermitzoglou.

[35]See Exhibit 2 at pages 80-84 PCB

46 Examination revealed movements of the right shoulder were limited globally and movements of the right wrist were grossly restricted with dorsiflexion being only 5 degrees. Mr Kahn did obtain a history that the paraesthesia had settled down in the fingers.

47 Mr Kahn made arrangements for the plaintiff to undergo further ultrasound and x-rays of her shoulder.

48 Ultimately, Mr Kahn referred the plaintiff to the vascular physician, Dr Peter Blombery for investigation for RSD and pain management.

49 The plaintiff relies on various reports from the consultant physician, Dr Peter Blombery.[36] Dr Blombery initially conferred with the plaintiff on 23 February 2009 on referral from Mr M Kahn.

[36]See Exhibit 2 at pages 85-97 PCB

50 At initial consultation, the plaintiff complained of ongoing pain and numbness in the right hand involving all the fingers, pain around the right shoulder, poor sleep due to pain and a large component of pain around the right elbow. She had not noted any changes in temperature or colour.

51 After examination, Dr Blombery was of the opinion that the plaintiff had clinical features of carpal tunnel compression of the median nerves, as well as ulnar neuritis on the right side. In particular, Dr Blombery stated:

“Mrs Bachos developed … [carpal tunnel compression and ulnar neuritis] … in the course of her job which involved heavy and repetitive movement of the hands and wrists. There is extensive literature outlining the association between such activity and the development of carpal tunnel compression of the median nerve as well as ulnar nerve compression. In addition she developed pain in the shoulder although imaging there was normal. She had surgical decompression of the carpal tunnel as well as the ulnar nerve but had ongoing pain and numbness in the arm together with pain in the elbow and shoulder.
It was my opinion that these were in the nature of a pain syndrome where there is non specific sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such non painful stimuli become interpreted by the cerebral cortex as being painful. It was my opinion that she did not have complex regional pain syndrome type 1.”[37]

[37]See Exhibit 2 at pages 92-93 PCB

52 Dr Blombery further consulted with the plaintiff on 25 March 2009, 27 April 2009, 19 May 2009 and 30 June 2009, during which time he trialled her with various types of medication to hopefully control the pain.

53 Dr Blombery noted that the plaintiff appeared quite depressed and that the “psychological factors are tending to enhance her experience of pain”. He considered that she may be a candidate for a pain clinic, but the plaintiff indicated to him that she may have attended such a pain clinic in the past. In particular, in his report dated 24 September 2009, Dr Blombery answered various questions posed to him in the following terms:

“1     What is the diagnosis – bilateral carpal tunnel compression of the median nerves, right ulnar neuropathy and a non-specific pain syndrome affecting the right shoulder, elbow and hand.
2     What is the prognosis – at this stage, her prognosis for recovery is poor. The best that can be hoped for, as outlined above, is that her symptoms can be stabilised rather than actually expecting improvement.
3     Whether the injuries are related to employment - it is my opinion that employment was a significant contributing factor to the injuries above.
4     Was employment with Storden a significant contributing factor to any and, of [skil if] so, what injuries – as outlined above, it is my opinion that employment with Storden Pty Ltd was a significant contributing factor to all the injuries.
5     What is the capacity to undertake pre-injury duties – she has no capacity to undertake her pre-injury duties.
6     What is her capacity to undertake any form of suitable employment – it is my opinion that she has no capacity to perform any form of suitable employment given the severity of her pain and her poor functional state.
7     If incapacitated for employment, is such incapacity likely to persist into the foreseeable future – it is my opinion that it is likely that her incapacity for employment will persist into the foreseeable future.
8     Has her condition stabilized – it is highly likely that her condition has stabilized. I would like to see what response she has to other medications but I feel that the best that could be hoped for from these, as outlined above, is that they may prevent deterioration rather than actually resulting in improvement. I therefore feel that her condition has stabilised.
9     Does she require any, and if so, what further treatment – she requires ongoing multidisciplinary therapy for chronic pain, including the use of analgesic, antidepressant and anticonvulsant drugs, physiotherapy, behavioural therapy, occupational therapy, as well as other techniques such as TENS and acupuncture as well as more specific interventional therapy if that is required.
10     Is it my opinion that her pain and incapacity for work results from physical injuries – the bilateral tunnel compression of the median nerve, ulnar neuropathy and non-specific pain syndrome are all organic disorders of pain nerve pathways and not psychological disorders. Psychological depression and anxiety, however, tend to enhance the experience of pain.”[38]

[38]See Exhibit 2 at page 94 PCB

54 Dr Blombery also examined the plaintiff in October 1999 and December 1999, at which time she was taking 50 milligrams of Endep, 150 milligrams of Tramal and Panadol, six to eight per day. Apparently she had informed Dr Blombery that she did not wish to have any procedures done and her hands remained numb at night with pain in the right shoulder.

55 The present general practitioner of the plaintiff is Dr Arthurson at the Mount Barker and Balhonnah Medical Centre in South Australia. The plaintiff relies on a report from Dr Arthurson dated 23 December 2011.[39] Dr Arthurson notes that he has been the general practitioner of the plaintiff from 21 July 2011 and also noted that the plaintiff had a long history of persistent right arm pain dating back to 2005. Dr Arthurson notes that the plaintiff presents with right arm dysfunction and he considered that there was enough in the history to suggest she has a Chronic Regional Pain Syndrome.

[39]See Exhibit 2 at page 134 PCB

56 Although he could not comment on any relationship of any of her conditions to her previous employment as he was not treating her at that time, Dr Arthurson does state that he considers the plaintiff would be unable to undertake any of her pre-injury duties and that further, it would not be possible for her to undertake any other suitable employment.

57 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:

(a) The general surgeon, Mr Peter Mangos, on 18 August 2008;[40]
[40]See report of same date – Exhibit 2 at page 78 PCB

(b) The rehabilitation and pain specialist, Dr Clayton Thomas, on 15 July 2010[41] and on 4 November 2011;[42]

(c) The orthopaedic specialist, Mr Kevin King, on or about 3 November 2011.[43]

[41]See report dated 20 July 2010 – Exhibit 2 at page 108 PCB

[42]See report dated 22 November 2011 – Exhibit 2 at page 112 PCB

[43]See report of same date – Exhibit 2 at page 123 PCB

58 At the time of his examination, Mr Mangos obtained a history that the plaintiff had been employed by “Punt Hill Apartments (Storden Pty Ltd)” for eight years as a cleaner and general maintenance person whose duties were “physically heavy” performing cleaning and handling of beds and the movement of furniture.

59 Furthermore, the plaintiff informed Mr Mangos that she first suffered symptoms in her hands, particularly on the right side, with some “disturbance of sensation; that is numbness and tingling, and a burning aggravated by activities”. Such symptoms began to wake her at night. Such symptoms continued and were slowly worsening over a period for about two years when, on 23 August 2005, she felt a sudden aching pain in the right shoulder which was “quite sharp” after lifting a vacuum cleaner. The injury to the right shoulder and arm “recurred several times” with a major recurrence of pain on 7 November 2005.

60 The plaintiff stated that she continued working until, on 21 March 2006, she was lifting some heavy rubbish bags when she experienced severe pain in her right elbow and hand, causing her to again consult her general practitioner.

61 After an examination, Mr Mangos was of the opinion that the plaintiff had suffered basically an –

“… overuse syndrome involving both her upper limbs, mainly in the right limb and in the soft tissues of the upper limb forearm muscles in particular but also with the onset of carpal tunnel syndrome, worse on the right than the left.”[44]

[44]See Exhibit 2 at page 78 PCB

62 Mr Mangos did not have access to any ultrasound of the right shoulder and speculated that she could have mild tendonitis of the right shoulder.

63 Mr Mangos stated, in part:

“1   The injuries are most certainly related to your client’s employment with Storden Pty Ltd [which he considered extended over eight years].
2    There is no doubt in my mind that the persistent and difficult work the lady was performing has been the triggering and aggravating factor to the conditions listed above.
3     The lady has no current or future capacity for pre injury employment.
4     The lady has no current or future capacity for any sort of work as she is unable to use the right hand for any forceful or regular work.
… .”[45]

[45]See Exhibit 2 at page 78 PCB

64 When initially examined by Dr Clayton Thomas, the plaintiff gave a history that she had developed symptoms over a “number of years” consisting of mild symptoms of pain and discomfort in the right upper limb with occasional numbness. Such symptoms were neither disabling nor caused her to seek medical treatment. Dr Thomas obtained the further history that in 2005, she lifted a vacuum cleaner, after which she developed worsening pain in the right shoulder girdle. Over time, she developed worsening neurological symptoms with pins and needles in the right hand and pain in the right elbow.

65 On the day of the examination, she complained of persistent pain in the right upper limb and in particular, pain at the right shoulder, elbow and hand [and in particular, at the right elbow]. In particular, the plaintiff stated she was unable to move or bend the elbow because of pain and that she was unable to lift her arm above chest height.

66 Examination revealed tenderness to palpation on the right shoulder girdle, throughout the right upper limb, particularly at the elbow and wrist. Her movements were “very slow” secondary to pain and her right wrist was stiff, lacking full movement in end range in all areas secondary to pain. Although the right elbow could fully flex, but had 30 degrees of full extension limited by pain. The shoulder was unable to flex and abduct to 90 degrees, although other movements appeared to be intact, secondary to pain. Reflexes seemed to be present and symmetrical.

67 Dr Thomas reported:

“Diagnostically, your client is suffering from a work related upper limb disorder affecting her right upper limb. She has myofascial pain syndrome in her right shoulder girdle. It would appear that she has developed carpal tunnel and an ulna[r] nerve neuropathy for which she had carpal tunnel decompression and ulna[r] nerve transposition. There was certainly no hard evidence of any further ongoing involvement of either of these nerves.
She has however both peripheral and central sensitisation affecting the right upper limb. Her problems have been present for a prolonged period of time. She reports that surgical intervention in October 2006 did not lead to any resolution of her problems and she wonders if anything, if her problems have in fact worsened. She is right upper limb dominant. The loss of use of the right upper limb has left her with major incapacity.
The onset of her problem occurred whilst working for the Punt Hill Apartments and work at that facility was a significant contributing factor to the onset of her problems and remains a material contributor to her current condition.
In your letter of instruction to me, you have indicated there are two employers. My understanding from her is that she was employed at the Punt Hill Apartments, although I note there was a 3 month period when she was employed by Storden Pty Ltd performing the same duties between the 28th December 2005 and March 2006, the genesis of her right shoulder, her right upper limb problem occurred in August 2005. The period between the 28th December 2005 and March 2006 in the scheme of things was inconsequence [sic]. In the absence of the type of work she was doing for a prolonged period of time in the events that occurred leading up until the 28th December 2005, her current condition would not have occurred and her current condition is therefore materially related to employment with Prime Ward, not Storden. She does not have the capacity to perform pre injury duties.
She has been rendered totally incapacitated by way of the right upper limb disability. The nature of her problem is an organic one. This is not a case in which psychological factors are at play. The incapacity that is present is likely to continue into the foreseeable future. The impairment is an organic one. Her condition has stabilised. Further treatment is palliative and conservative. Her residual pain and incapacity for work is a result of the physical injury/organic injury.”[46]

[46]See Exhibit 2 at page 110 PCB

68 When reviewed by Dr Thomas on 4 November 2011, he had available a medical report from the treating physician, Dr Peter Blombery, dated 24 September 2009.

69 At the time of the second examination, the plaintiff asserted she was unable to use her right arm for full activities. Furthermore, her left arm has become sore because she tends to favour her right arm.

70 On examination, she was wearing a wrist/hand orthosis and the right hand was tender to palpation and there was some restriction of movement of the right wrist and shoulder. Dr Thomas stated:

“Mrs Bachos is suffering from a work related upper limb disorder. She developed peripheral nerve impingement with carpal tunnel syndrome and ulna[r] nerve neuropathy. She had decompression. As not uncommonly the case, decompression may have helped the neurological condition, but made no difference to her pain nor her disability.
She has been left with chronic pain involving her right forearm. She has a degree of central sensitisation.
She also has a psychological condition secondary to the organic one. It does appear however that the psychological condition is indeed only a secondary condition but it does add and contribute to her level of disability.
I would accept that she would have difficulty performing full pre-injury work duties. I would accept that she would have difficulty doing the heavy lifting and heavy cleaning duties that she was able to do prior to the injury occurring.
Given her previous level of education, her work history, the nature of both the organic and the non organic components to her presentation, she does not present with having [a] work capacity to perform suitable employment.
… .”[47]

[47]See Exhibit 2 at page 114 PCB

71 When seen by Mr King, the plaintiff gave a history that she performed her duties “without trouble” until about 2003, when she noticed for the first time gradual and spontaneous onset over what appears to have been a number of months of some tingling and numbness and discomfort in the right hand associated with mild discomfort in the right elbow and some mild aching discomfort in the right shoulder. At that time there was no loss of time from work, nor did she formally seek any medical treatment. Over time, the symptoms persisted and worsened, and then on 23 August 2005, she suffered a specific incident to the right upper limb when picking up a large vacuum cleaner. As a result of such incident, she experienced “severe pain” in the right shoulder associated with some generalised aching in the right upper limb, and from that time she told Mr King that she continued to be significantly disabled and has been disabled to the present, by generalised aching pain in the right upper limb, worse in the right shoulder and the right hand associated with tingling and numbness and pain in all the digits of the right hand.

72 After reviewing various radiological studies, Mr King stated, in part:

“She began to get mild neurological symptoms in the right hand which presumably were related to the early onset of what was initially a mild carpal tunnel lesion on the right side, later confirmed by electromyography (see Mr Tham’s report) and she apparently later developed evidence of mild ulnar neuritis (she has no residual neurological signs today).
These symptoms were only mild and presumably were related to generalised mild overuse of the upper limb - an occupational hazard of such busy cleaning work.
Her main problems seem to have started after lifting a vacuum cleaner at work on 23.08.05 and from then onwards the symptoms and signs of ulnar neuritis and carpal tunnel lesion affecting the right upper limb became more significant and were confirmed by electromyography - the diagnosis being accepted by all the various specialists who had examined her from 2005 onwards, and she also developed what appears to have been a classical rotator cuff injury to the right shoulder, leaving her now with a moderately severe degree of stiffness and pain in the right shoulder. There seems to be no injury to the neck as such.
She is now chronically disabled to what appears to be quite a marked degree by a painful, weak, clumsy right hand and to a slightly lesser extent by a painful, stiff, weak right shoulder, and some stiffness and pain in the right elbow.
It is reasonable to attribute the onset of right carpal tunnel and right ulnar neuritis to the busy, repetitive work that she was doing from 2003 onwards (as stated during the history) and it is reasonable to attribute the onset of right rotator cuff injury (right shoulder) to the lifting incident at work on 23.08.05.
Therefore, the problems with the right upper limb can be reasonably attributed to the work that she was doing between 2003 and 2005.
She did not improve following ulnar nerve transposition and carpal tunnel release in the right hand and she has continued to be severely disabled ever since.
My overall impression is that she is a genuine woman who is chronically disabled to a moderately severe degree by the combination of a moderately severe or chronic rotator cuff injury to the right shoulder occurring at work and the late effects of a mild residual carpal tunnel lesion affecting the right wrist and possibly a mild ulnar neuritis as well (although there were no objective signs of ulnar neuritis in the right hand or forearm).
There were no clinical signs in the left upper limb but she may have a mild carpal tunnel lesion on that side as well on the basis of electromyography.
The problem in this case seems to be compounded considerably by anxiety and depression and it is my overall impression that there is a significant psychological overlay - this is beyond my field of expertise as an orthopaedic surgeon.
… .”[48]

[48]See Exhibit 2 at pages 129-130 PCB

73 In an addendum to his report, Mr King further stated:

“On the history available to me today Mrs Bachos insisted to me that the two separate employers were in actual fact the same firm - I assume that this statement was correct but it would be best if you confirmed this with her.
On the basis of the clear history she gave me it is my assumption that her problems with the right upper limb commenced as a result of constant repetitive, use of the right upper limb in the course of her employment as a cleaner of apartments and flats from 2003/2004 onwards and as far as I could determine the clinical state that I have recorded today is basically the result of repetitive stresses and strains on the right upper limb culminating in the actual specific injury to the right shoulder and right upper limb on 23.08.05 which occurred while she was working what [skil with] nominally her original employer.
Even if the second employer was an entirely different firm she made it clear to me that her main problems dated from 23.08.05, she worked intermittently after this on light duties with increasing difficulty and she was switched to other duties in the other block of flats from 28.12,05 to 21.03.06. As far as I could determine there was no significant fresh injury as such and I do not think on the evidence available to me that there was any significant further aggravation to her right upper limb conditions by this short period of approximately four months of work.
… .”[49]

[49]See Exhibit 2 at page 133 PCB

74 The plaintiff also relies on medico-legal opinions from the following doctors:

(a) The consultant plastic surgeon, Mr Frank J Ham, who examined the plaintiff on 23 August 2007;[50]
[50]See report dated 4 September 2007 – Exhibit 2 at page 64 PCB

(b) The orthopaedic surgeon, Mr Rodney J Simm, on 28 September 2011;[51]

(c) The orthopaedic surgeon, Mr Michael J Dooley, on 31 October 2011.[52]

[51]See report dated 29 September 2011 – Exhibit 2 at page 115 PCB

[52]See report dated 20 January 2012 – Exhibit 2 at page 136 PCB

75 Mr Ham seemingly examined the plaintiff on behalf of the first defendant in order to determine “ongoing liability” in respect to the claim for compensation made by the plaintiff against the first defendant.

76 Mr Ham obtained the history that the plaintiff had ceased working on 21 March 2006 and that from approximately 2003, she developed numbness in the ulnar two fingers of her right hand and thumb, together with pain in the wrist and later in the elbow. Mr Ham obtained the history of the referral to the hand surgeon, Mr Tham, and the surgery undertaken by that specialist on 9 October 2006.

77 At the time of the examination, the plaintiff was complaining of symptoms in her right hand, which are worse at night, with pain, numbness and difficulty getting comfortable. Mr Ham noted that the plaintiff gave no history of any accident or injury, but rather a slow deterioration in the pain and numbness in her right arm.

78 Mr Ham stated, in part:

“In answer to your specific questions:
Although Carpal Tunnel Syndrome is probably a constitutional problem. it is possible that this worker’s duties provided an aggravation of her constitutional tendency to Carpal Tunnel Syndrome.
It is possible that this aggravation may have involved synovitis of her flexor tendons in the carpal tunnel and lead to the development of a trigger thumb.
The patient’s symptoms have apparently persisted, so it is likely that her condition has not resolved. However, testing for decrease in sensation using the two point discrimination test was not helpful, as her replies could not be explained on normal anatomy. Very light tapping over the scar at the right elbow produced tingling, not only in the distribution of the ulnar nerve, but also all the remaining fingers and even the thumb. Again, this does not confirm with the anatomy of the median and ulnar nerves.
I think it is unlikely that this worker has any current work capacity. I believe that you should obtain a report from Mr Tham if he saw her on the 3 August and also the EMG report if this Investigation was carried out at that time. Mr Tham knows this patient and should be able to compare his recent consultation with his initial findings.
If you are able to obtain Mr Tham’s opinion, together with the EMG report, I would be pleased to review the worker’s work capacity.
…
The diagnosis of the worker is continuing dysfunction due to ulnar nerve irritation at the elbow, perhaps associated with persistent and residual carpal tunnel compression of the median nerve. However, I could not obtain any clinical signs of the persistence of definite Carpal Tunnel Syndrome.
If the worker has no neurological evidence of median nerve compression, it probably would be worthwhile if she were seen in a pain Centre, as she seems to be taking a considerable amount of analgesics.
… .[53]

[53]See Exhibit 2 at pages 66-67 PCB

79 When seen by Mr Simm, the plaintiff gave some history that from about 2003, she experienced some numbness in the right hand and possibly some pain in the right elbow. In particular, she experienced acute pain in the right shoulder and arm on 23 August 2005, when she picked up a vacuum cleaner. Furthermore, there was an exacerbation of her right arm pain as a result of lifting at work in March of 2006.

80 At the time of examination, the plaintiff complained of constant severe pain which occurs over the right shoulder and towards the back of the shoulder. Furthermore, she has pain around the right elbow, which extends into the forearm, wrist and hand, with some localisation of the pain at the wrist joint. She experiences numbness and pins and needles in all fingers.

81 After a detailed examination and a perusal of the various investigations (x‑rays et cetera), Mr Simm stated:

“She has a non-organic condition of the right arm with the subjective presentation of hypersensitivity to touch, marked restriction of movement of all joints and hyperaesthesia involving the entire right arm and the fingers of the right hand. She does not have the physical signs of an organic condition of the right shoulder, right elbow, right wrist or right hand.
She may have had mild carpal tunnel syndrome and/or ulnar neuritis but she underwent appropriate surgical treatment and the post-operative nerve conduction tests returned to normal. She said the neurological symptoms persisted and if anything became worse after appropriate surgical treatment on the ulnar nerve and median nerve.
She may have suffered a strain of the right shoulder as a result of a lifting incident in August of 2005. However, there was no evidence in the file material that right shoulder symptoms were problematic for some considerable time after this alleged injury. She attended Mr Tham, an Orthopaedic Surgeon, who took a history of neurological symptoms. There was no mention in his report of right shoulder symptoms. The first investigation of the right shoulder in the file material was not until 5th November 2008 when she had a normal ultrasound. She had a repeat ultrasound in 2009 which reported some non-specific changes. This level of change reported on an ultrasound is of no relevance unless there is clinical correlation. Her current clinical presentation of her right shoulder condition is that of a non-organic condition with no evidence of subacromial impingement.
I noted in the report from Dr Clayton Thomas that he is of the opinion she has a myofascial pain syndrome in her right shoulder girdle and that the nature of her problem is organic and that this is not a case in which psychological factors are at play. He may well be in part correct. This would have to be confirmed by specialists in the management of chronic pain and psychological disorders. It is important to note that there is a non-organic and/or psychological component to the right shoulder condition. She presented virtually no glenohumeral rotation on formal examination and when attempting to do so there was quite marked overt pain behaviour. However with distraction she had a full range of glenohumeral movement without pain. This indicates that non- organic factors are operating. …”[54]

[54]See Exhibit 2 at page 120 PCB

82 Mr Simm also commented that he was unable to identify the presence of a physical condition that would prevent her from work. However, he did note that it was “artificial” to try and separate the physical from the non-physical factors.

83 When seen by Mr M Dooley in October 2011, the plaintiff was complaining of ongoing right upper limb pain causing her to wake at night. A lot of the time she was wearing a splint on her right wrist and was then taking Panamax, Tramal and Endep for her pain.

84 Examination of the right shoulder revealed active abduction and forward flexion to 90 degrees, external rotation to 30 degrees and internal rotation to 20 degrees. The plaintiff resisted attempts to passively move the shoulder above the active range of motion.

85 Examination of the right elbow showed lack of extension by 60 degrees and passive resistance to moving the elbow. The plaintiff advised Mr Dooley that her right wrist was too painful to move.

86 In his report, Mr Dooley states, in part:

“Conditions such as carpal tunnel syndrome and ulnar nerve compression at the elbow are essentially degenerative type conditions that most commonly affect patients in middle age. Most commonly the symptoms present spontaneously and insidiously. It is expected that symptoms can be precipitated by episodes of trauma or chronic repetitive trauma. Again, however, in ordinary clinical practice, once the provoking factors are removed or once the patient undergoes nerve decompression, then symptoms resolve or substantially improve.”[55]

[55]See Exhibit 2 at page 138 PCB

87 Mr Dooley further comments that it is difficult to make an accurate diagnosis in relation to the cause of the initial pain. He does accept that the initially pain may have related to organic nerve compression and, to this extent, believes that the plaintiff’s employment was a significant contributing factor to the onset of pain in the right upper limb. However, he considers that the effects of any aggravation of an underlying organic condition have ceased. Furthermore, he considered that the constancy and intensity of the plaintiff’s ongoing pain was greater than one would expect to see. Although, he did note that on her presentation, she would be unfit for employment, but from an orthopaedic viewpoint alone, she should be capable of light physical work and clerical duties.

88 In his view, there had been no injury to the right shoulder or cervical spine region.

89 The first defendant relies on medico-legal examinations by the following doctors:

(a) The plastic and reconstructive surgeon, Mr D R Marshall, on 19 February 2007[56] and on 15 April 2008;[57]
[56]See report of same date – Exhibit W at page 55 FDCB
[57]See report of same date – Exhibit W at page 55 FDCB

(b) The orthopaedic surgeon, Mr C Jones, on 12 March 2008;[58]
[58]See report dated 21 March 2008 – Exhibit W at page 58 FDCB

(c) The plastic and hand surgeon, Mr M J Stapleton, on 5 December 2008[59] and on 26 February 2009;[60]
[59]See report of same date – Exhibit W at page 61 FDCB
[60]See report of same date – Exhibit W at page 70 FDCB

(d) The consultant psychiatrist, Dr N R Rose, on 19 December 2008;[61]

(e) The psychiatrist, Dr N Paoletti, on 19 August 2009.[62]

[61]See report of same date – Exhibit W at page 73 FDCB

[62]See report of same date – Exhibit W at page 98 PCB

90 When initially seen by Mr Marshall on 19 February 2007, the plaintiff gave a history that she developed “discomfort” in her right arm which involved her hand and wrist initially, then progressed to her shoulder, causing her to be ultimately referred to Mr Tham, who performed surgery on 9 October 2006.

91 Examination of the hand at that time was “substantially normal” with no muscle wasting and a slow, but full range of movement of the joints of the hand and elbow. In particular, Mr Marshall could find no evidence of persisting nerve injury.

92 When later seen on 15 April 2008, Mr Marshall noted that the plaintiff’s post-operative course was complicated by the persistence of symptoms with complaints of numbness in all of the fingers and the thumb of the right hand, with the numbness being worse in the thumb and index finger. Furthermore, she complained of swelling of the hand and discomfort over the ulnar side of the right elbow.

93 After examination, Mr Marshall reports:

“Mrs. Bachos continues to complain of pain and numbness the right hand following carpal tunnel release at the wrist and ulnar nerve release at the elbow. I can find no physical reason for the persistence of symptoms which, according to Mrs. Bachos, are more severe than prior to the surgery.
…
In view of the failure of the previous surgery to relieve the symptoms and in the absence of any positive evidence of nerve compression on examination today, it is unlikely Mrs. Bachos will return to her pre-injury occupation.
If a further report reveals positive findings on the electrical studies, it is possible further surgery maybe indicated. …
The present situation may have to be accepted. If this is the case, it is unlikely Mrs. Bachos would be able to hold down a job requiring normal manual dexterity and some other form of occupation would be indicated.”[63]

[63]See Exhibit W at page 56 FDCB

94 When seen by Mr Jones, the plaintiff complained of pain in the right arm. Such symptoms commenced after the vacuum cleaning incident in the “latter part of 2005”. After that, the pain spread to involve the elbow and the right hand.

95 On examination, provocation tests for median nerve compression were negative and there was no sensory alteration of muscular wasting in the hand consistent with a median nerve lesion. There was minor limitation of right elbow movement, presumably associated with the ulnar nerve surgery.

96 Mr Jones stated, in part:

“Mrs Bachos has had surgery to decompress the ulnar nerve behind the right elbow and the median nerve at the right wrist. Results of surgery have not been encouraging. She continues to attend a hand therapist, but appears to be making no progress. Clinical evaluation suggests there is no major entrapment either of the median or ulnar nerve. It is unclear why this lady has not returned to work. It is stated in the report of Mr F Ham, that nerve conduction studies show the presence of a carpal tunnel and compression of the median nerve and the ulnar nerve lesion at the right elbow, but there was no confirmation that this was actually the case.
I found no indication that this lady’s symptoms are in any way related to employment.
I do not believe there ever was a work component to them.
Despite continued complaints of pain following surgery, clinical indications are of a very substantial resolution of the underlying condition.
In my view, this lady has a work capacity. I note that her left arm is normal and she is considered fit to return to light duties, with minimised use of the right arm. I believe she is able to undertake these duties.” [64]

[64]See Exhibit W at page 60 FDCB

97 When seen by Mr Stapleton on 5 December 2008, his views are best expressed when he states:

“At the outset, this lady, without question, is suffering from carpal tunnel syndrome. She is also suffering from a condition which often runs part and parcel with carpal tunnel syndrome and that is a compression of the ulnar nerve at the elbow joint. She has had a decompression operation of the ulnar nerve at the elbow which involved, it appears, a transposition of that ulnar nerve and she has had a decompression of the carpal tunnel on the right hand. She has not had surgery on the left hand side. Carpal tunnel syndrome is not an injury. It is not caused by hard work nor is it caused nor is the pathology aggravated by repetitive activities. … . [65]

[65]See Exhibit W at page 61 FDCB

98 Mr Stapleton makes the point that a distinction should be seen between activities which give rise to symptoms as a result of the underlying pathology of carpal tunnel syndrome and an aggravation of the underlying pathology itself. As he states, the aggravation of symptoms should be regarded quite differently from the aggravation of the pathology. Mr Stapleton did obtain a history that the pins and needles in her right hand occurred some three years prior to March 2006, and to a lesser extent in her left hand.

99 Mr Stapleton considered many aspects of the presentation of the plaintiff inconsistent.

100 When examined on the second occasion, Mr Stapleton obtained the history that she had had pain in her right shoulder as a result of lifting the vacuum cleaner in 2005. Since then she has ongoing pain and difficulties with her right shoulder. At that time, based on examination findings and lack of shoulder joint movement, Mr Stapleton diagnosed the “accepted injury” to be a tear in the rotator cuff. However, again, he considered that there were inconsistencies in the presentation of the plaintiff.

101 After his examination, Dr Rose notes that “not surprisingly”, that as a result of her physical injuries, the plaintiff has become “despondent, depressed, upset, withdrawn and angry”. At that time she was being treated with Endep.

102 In particular, Dr Rose diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood in reaction to her right upper limb “injury”.

103 On 19 August 2009, Dr Paoletti diagnosed that, from a psychiatric point of view, the plaintiff suffered from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Paoletti did note that the work capacity of the plaintiff is determined mainly by her physical problems and that from a purely psychiatric viewpoint, she would have a work capacity within physical limitations if she did have a physical work capacity.

Analysis of the Evidence

104 The plaintiff is a fifty-three-year-old married woman who is naturally right handed. There is no issue that she was employed by the second defendant (Primeward) from approximately 1997 until 27 December 2005 and employed by the first defendant (Storden) from 28 December 2005 until ceasing work in March 2006, after which she returned for about a week on “light duties”, ceasing work all together on 18 April 2006.

105 On 5 April 2006, the plaintiff lodged a claim against Storden alleging that lifting linen bags during the course of her employment aggravated a right shoulder and elbow injury, causing her to have pain in her elbow and shoulder.[66] In particular, the Claim Form asserts, when asked:
[66]See Exhibit A

“Have you any previous pain/disability in the area of your present injury/condition?---
It is asserted ‘original injury’ occurred at Punt Hill Apartments approximately four years ago.”

Such WorkCover Claim Form was accepted and subsequently, the plaintiff was paid weekly payments of compensation pursuant to the provisions of the Act and the cost of medical treatment – in particular the cost of surgery by Mr Tham – was paid by Storden. Furthermore, a Claim for Impairment Benefits dated 18 November 2008[67] against Storden in relation to the right shoulder, right elbow, right wrist and right hand-fingers was lodged and accepted by Storden (or its agent).[68] The plaintiff was assessed and obtained a lump sum compensation in respect of permanent impairment from those conditions. Understandably, those acting on behalf of the plaintiff rely on the dicta of Ashley JA in Ansett Australia Ltd v Taylor,[69] when he states:

“… But in cases where liability in relation to such a claim was accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim — not only in respect of compensation payable under s 98C or s 98E, but also, potentially, with respect to s 134AB(3) and (15) — I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”

[67]See Exhibit C

[68]See Exhibit 4 at page 156 PCB

[69][2006] VSCA 171

106 The plaintiff’s employment with both defendants was slightly unusual. Although I have no reason to doubt that each defendant was a legal entity which in turn employed the plaintiff, there was little, if anything, in the change of employers from the plaintiff’s point of view other than she was sent to different units to clean in early 2006. From her perspective, it was essentially one continuous employment.

107 I formed the view that the plaintiff was attempting to give honest and accurate answers to the questions posed to her by Counsel for each defendant and at no time did I form a view that she was consciously setting out to mislead the Court in relation to the circumstances of her employment, any incidents of injury she suffered or her symptoms. However, I also formed the view that the plaintiff was injury and pain-focussed.

108 I make the following general comments in relation to various aspects of the matter:

(a) Counsel for the second defendant (Primeward) was at pains to stress both through his questioning of the plaintiff and the tendering of any documents, that no claim for compensation had been made against his client and, of course, no compensation was paid. Such a situation cannot be gainsaid. It is understandable that the plaintiff lodged her only claim for compensation against the first defendant (Storden) at around the time she ceased employment. Of course, as I understood Counsel for the second defendant (Primeward) accepted, that the opening words of s134AB state:

“A worker who is … or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of employment on or after 20 October 1999 is entitled to the benefit of s134AB subject to satisfaction of other requirements of the section.”
(my emphasis).

(b) The plaintiff was the only witness called for cross-examination in this matter. Unfortunately there is a range of medical opinions ranging from whether the plaintiff has any organic condition whatsoever, whether it be in her shoulder, arm, elbow or hand; whether the plaintiff continues to suffer a carpal tunnel syndrome in her right arm and/or an ulna nerve problem, and if so, whether such conditions are in any event compensable injuries.

109 I make the following findings:

(a) Prior to her employment with the second defendant in 1997, the plaintiff had only had a limited employment history. She had undergone a short receptionist’s course in 1978 and had worked for two years in the 1990s as a machinist in a textile factory;

(b) Her work as a full-time cleaner with both the second defendant and first defendant involved the constant, repetitive and strenuous use of her right dominant arm;

(c) Although not entirely clear as to the precise time when the plaintiff commenced to experience symptoms, but I do find that by at least 2002, the plaintiff was experiencing symptoms in her right shoulder, arm and wrist, and worsened over time when performing work for the second and first defendants. I refer to Exhibit Z, which are the notes of Dr Dermitzoglou which details various consultations with the plaintiff in the early 2000s. In particular, I do make reference to the note on 9 December 2003 wherein the doctor has written:

“Works as a cleaner 5 years, feels tired, past [weekend] … also bilateral hand with forearm paresthesia episodically suggestive of carpal tunnel. … .

(d) On or about 23 August 2005, during the course of her employment with the second defendant (Primeward) she suffered a right shoulder injury as a result of manoeuvring a vacuum cleaner. In this respect, I refer to the Incident Notification Form dated 23 August 2005 in respect of such incident.[70]
[70]See Exhibit 3 at page 145 PCB

The plaintiff consulted Dr Dermitzoglou on 23 August 2005 complaining of right shoulder pain, and examination revealed pain on abduction of that shoulder. A muscular strain was diagnosed at that time. The plaintiff further consulted Dr Dermitzoglou on 12 September 2005, 27 October 2005 and 3 November 2005 complaining of ongoing shoulder pain which was treated with episodes of rest from work and from 4 November 2005, a return to work on suggested lighter duties. The plaintiff also again consulted Dr Dermitzoglou on 6 March 2006 complaining of right shoulder pain and also at that time, right elbow pain, right hand pains and tingling of the fingers of her right hand;

(e) The plaintiff also submitted a further Incident Report Form dated 7 November 2005[71] which seemingly relates to an aggravation of her previous shoulder condition on 23 August 2005;
[71]See Exhibit 3 at page 146 PCB

(f) I also refer to a document titled ‘Punt Hill Apartments Incident/Injury Report’ in relation to an incident on 3 March 2006 (seemingly when employed by Storden).[72] Although not clear, the reference in that document to the Punt Hill Group most probably encompasses the first and second defendants. In any event, the document signed by both the plaintiff and seemingly a representative of the Punt Hill Group describes the “incident” in the following terms:
[72]See Exhibit 3 at page 147 PCB

“Right shoulder pain & arm & wrist pain over a period of 4 years.
Use of vacume [sic] cleaner, spray bottle, heavy lifting, making beds.
Experience [sic] Tingling fingers & weakness in my right arm & hand.”

I also refer to an Incident Report dated 5 April 2006,[73] where the plaintiff describes an incident where she was –
[73]See Exhibit 3 at page 148 PCB

“Lifting linen bags into trolley which caused injury to (R) arm and shoulder”.

I refer to the evidence of the plaintiff where she accepted that the
“triggering factor” for everything was the incident in August 2005 when she lifted the vacuum cleaner. Although she experienced symptoms in her right arm, right wrist and shoulder from time to time prior to 2005, the pain had been reasonably constant since 23 August 2005;

(g) EMG testing undertaken on 8 June 2006 by Dr Kranz revealed a degree of median nerve compression in the carpal tunnel bilaterally but slightly worse on the right, together with a degree of ulnar nerve involvement at the right elbow. After such nerve conduction study, Mr Tham, the treating specialist, performed a right carpal tunnel release and a right cubital tunnel release;

(h) The plaintiff has not performed any type of work since her cessation of employment with Storden, after which she received weekly payments of compensation and has, of recent times, been paid a Centrelink Pension. Furthermore, she now lives with her husband in Murray Bridge in South Australia.

110 After a consideration of all of the evidence, I have little doubt that the plaintiff was suffering from bilateral carpal tunnel syndrome (particularly on the right side) and right ulnar nerve entrapment at the right elbow when she ceased work in March 2006. Mr Tham, the treating hand specialist, came to such a view clinically and was supported by the electromyographic testing performed by Dr Kranz. Furthermore, notwithstanding that Mr Tham performed a right endoscopic carpal tunnel release and ulnar nerve release at the elbow on 9 October 2006, the plaintiff has continued to have symptoms of carpal tunnel syndrome on the right side and symptoms of ulnar nerve problems at her right elbow.

111 I do note that Dr Kranz performed further electromyographic testing on 26 July 2007, which, according to Mr Tham, revealed normal sensory and motor parameters and evidence of improvement from the earlier nerve conduction study of both the median and ulnar nerves. However, consistent with the view that the plaintiff has ongoing organic problems in relation to her median nerve (carpal tunnel syndrome) and ulnar nerve (right elbow), I refer to the following:

(a) Provocative tests undertaken by Mr Tham on 3 August 2007 were positive and the plaintiff was complaining of persisting numbness;

(b) When initially examined by Dr Blombery on 23 February 2009, there were clinical features of carpal tunnel compression of the median nerve, as well as ulnar neuritis at the right elbow;

(c) Mr Mangos, when he examined the plaintiff on 18 August 2008, considered that the plaintiff had ongoing symptoms of carpal tunnel syndrome;

(d) Mr King, when examining the plaintiff, was of the opinion that she did not improve following ulnar nerve transposition and carpal tunnel release in the right hand;

(e) Mr Ham, when he examined the plaintiff on 23 August 2007, had a working diagnosis of “Continuing dysfunction due to ulnar nerve irritation at the elbow, perhaps associated with persistent and residual carpal tunnel compression of the median nerve”. I do note that he could not obtain any clear clinical signs of the persistence of definite carpal tunnel syndrome;

(f) Mr Stapleton examined the plaintiff on 5 December 2008 and expressed the opinion that “without question” the plaintiff was suffering from carpal tunnel syndrome and compression of the ulnar nerve at the elbow joint. I should add that he considered neither of these conditions to be work-related.

112 To the extent that other doctors suggest that there is no evidence of either carpal tunnel syndrome or right ulnar nerve problems, I reject such evidence.

113 The issue arises as to whether or not the right carpal tunnel syndrome and the right ulnar problem at the right elbow are work-related or indeed, are constitutional conditions and for which work has played no role in their pathology other than perhaps aggravating symptoms when the work was actually performed. In this sense, I prefer the views of the treating general practitioner, Dr Dermitzoglou, Mr Mangos and Dr Blombery, who support the proposition that the type of work that the plaintiff was performing with the first and second defendants would have aggravated and made worse the condition of carpal tunnel syndrome and the right ulnar elbow problems.

114 I note that the consultant plastic surgeon, Mr Ham, and indeed, the treating plastic surgeon, Mr Tham, although asserting that carpal tunnel syndrome is probably a constitutional condition, accept that the plaintiff’s employment duties may well have aggravated such condition. As I have already noted earlier in this judgment, the first defendant has accepted her claim, amongst other things, in relation to her right carpal tunnel syndrome and paid for the surgery undertaken by Mr Tham.

115 Given my findings as to when she commenced to experience symptoms in the right median nerve area and the right ulnar nerve area, I have formed the view that her employment activities with both the first and second defendant have contributed to her right carpal tunnel injury and right elbow injury.

116 In this respect, it is to be noted that the development of carpal tunnel syndrome and the compression of the right ulnar nerve are ongoing conditions which, in the circumstances of this proceeding, have traversed two employments, albeit for practical purposes, performing the same duties.

117 In such circumstances, I do not consider it appropriate to apply the principles enunciated in Petkovski v Galletti[74] but rather, apply the principles enunciated in Grech v Orica Australia Pty Ltd & Anor.[75] As stated in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz:[76]

“Grech dealt with causation issues in the context of a single ongoing condition (bilateral carpal tunnel syndrome) which commenced prior to 20 October 1999 and continued after that date. The question for determination was whether the worker had suffered identifiable compensable injury to his wrists and hands on or after 20 October 1999, which resulted in or materially contributed to the consequences that he claimed constituted serious injury. The case did not involve two separate injuries arising out of two discrete incidents, where the subsequent injury aggravated the earlier injury. There is nothing in Grech which detracts from the principles in Petkovski.”

[74][1994] 1 VR 436, as confirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164 and in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60

[75](2006) 14 VR 602

[76][2012] VSCA 60 at paragraph [28]

118 In relation to the median and ulnar nerve problems, there are no discrete incidents and can only be properly assessed as a single ongoing condition. Although Grech did deal with an injury which was said to be partly suffered prior to 20 October 1999, the principle enunciated, in my view, has application in the present proceeding. As Ashley J stated in Grech:

“It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”[77]

[77]Grech at paragraph [58]

119 After a consideration of all of the evidence, I find that the work performed by the plaintiff with the first and second defendant contributed to an aggravation of both her right carpal tunnel syndrome and right ulnar nerve compression, both of which required surgical treatment. I find that such compensable injuries in each employment have been a cause of a resulting impairment in the right arm and consequences involving restriction of the right arm and the experience of pain in those areas.

120 Notwithstanding the foregoing, and consistent with my earlier finding that the plaintiff is pain focused, I do consider that there is an element of her presentation which is not explicable on organic grounds. The issue becomes whether or not any organic consequences from the right arm impairment can be identified for the satisfaction of the narrative test.

121 I refer to the Court of Appeal decision of Jayatilake v Toyota Motor Corp Australia Limited[78] which dealt with the ramifications of s134AB(38)(h) of the Act. That decision followed on from Shock Records Pty Ltd v Jones,[79] Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis[80] and Zivolic v Hella Australia Pty Ltd.[81]

[78][2008] VSCA 167

[79][2006] VSCA 180

[80][2007] VSCA 46

[81][2007] VSCA 142

122 In Jayatilake, Ashley AJ stated, in part:

“In point of principle, the question whether a worker has established that he or she has suffered serious injury should be decided by consideration of all the evidence. As I observed in Grech, re-expressing a long-established position:
‘The matters which the plaintiff needed to establish … were to be resolved upon all the evidence before the court. It was not a trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not of itself provide answers to those questions.’

Section 134AB(38)(h) says nothing to suggest that the general approach is to be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required to establish, in order to satisfy the presently pertinent aspect of the definition of ‘serious injury’, that he or she suffers an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity. Like any other question for determination, it is a question to be resolved by consideration of all the evidence before the court. Stamboulakis should not be understood to mean that, upon the serious injury question, the principle that an issue is to be determined by reference to all admissible and relevant evidence is inapplicable.
If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the ‘quantum’ of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.
… .”[82]

[82]See Jayatilake (op cit) at paragraph [17]-[19]

123 Ashley JA, in Jayatilake, also referred to the statements of Bell AJA in Shock Records at paragraph 20, and the statements of Redlich JA in Zivolic at paragraph 19, to be correct in principle (although Ashley JA did comment, in relation to the statement of Redlich JA, that it was not necessary that it be limited to the “medical evidence” when determining whether the physical consequences can be identified).

124 After a consideration of all of the evidence, I find as a matter of probability that the plaintiff has suffered a physically-based impairment in relation to her right arm which gives rise to organic consequences.

125 Although I do find that the plaintiff suffered a right shoulder injury arising out of or in the course of her employment with the second defendant on 23 August 2005 which may have been aggravated by her employment with the first defendant, I am not satisfied, after a consideration of all of the evidence, that such shoulder “injury” has given rise to any organic permanent impairment.

126 There have been a variety of views expressed by doctors in relation to the right shoulder – such opinions have varied from:

§ a possible right frozen shoulder (Dr Blombery);

§ “Mild tenderness of the right shoulder” (Mr Mangos);

§ “A degree of central sensitisation” (Dr Thomas);

§ “Moderately severe or chronic rotator cuff injury to the right shoulder” (Mr King);

§ “Non-organic condition with no evidence of subacromial impingement” (Mr Simm); and

§ no injury to the right shoulder (Mr Dooley).

127 I also note that when initially seen by the treating specialist, Mr Tham, no history was given of persisting right shoulder pain and all treatment was directed to the right elbow and right wrist. The ultrasound of the right shoulder undertaken on 5 November 2008 was “normal”.

128 Counsel for the defendants also submitted that it was inappropriate for the plaintiff to be permitted to aggregate a shoulder injury, elbow injury and hand injury to determine whether or not there had been serious long-term impairment. Each injury it was submitted (if there be one), must be assessed as to whether or not it gives rise to a permanent impairment with consequences which satisfy the narrative test. I refer to Lu v Mediterranean Shoes Pty Ltd,[83] wherein Buchanan JA states, in part:

“I think that the identification of a body function for the purpose of determining the application of para (a) of the definition of ‘serious injury’ in … of the Accident Compensation Act 1985 depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. Thus I consider that an injured shoulder and an injured elbow can properly be regarded as resulting in impairment or loss of the body function of an arm.
It is another question, however, whether an injury to a shoulder and an injury to an elbow can be aggregated. I agree with Chernov JA that injuries can only be aggregated if they are the result of one event or incident.”[84]

[83](2000) 1 VR 511

[84]See Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraphs [3]-[4]

129 As I have found earlier in these reasons, the injury to the right carpal tunnel and the right ulnar nerve developed over a period of time contributed to by the type of work that the plaintiff was performing with each defendant. The injuries were not “traumatic” in the sense that they occurred as a result of an incident or incidents. In this sense, I have formed the view that the elbow injury and wrist injuries, having been aggravated throughout the course of the employment as a result of performing work with the right arm, can be effectively aggregated to for the purposes of determining whether or not the plaintiff has suffered a “serious injury” to her right arm. If I be wrong about that, I am of the view that each injury, whether it be to the right wrist (the carpal tunnel syndrome) or the right elbow (the ulnar neuritis), would, in itself, give rise to permanent impairment with effectively the same consequences.

130 It is convenient to determine whether or not the plaintiff satisfies the requirements of the Act in establishing that she be granted leave to bring a common law action in relation to her right arm injury for pecuniary loss damages. In this respect, Senior Counsel for the plaintiff accepted that given that the “without injury earnings” of the plaintiff were not significant, and if the Court should so find the plaintiff had a capacity for suitable employment, it would be difficult for her to discharge her onus in showing that she is incapable of earning now, or into the foreseeable future, less than 60 per cent of such “without injury earnings”. Accordingly, for the plaintiff to succeed on this issue, it would be necessary for her to establish that she is incapable of performing suitable employment.

131 After a consideration of all of the evidence, I have come to the view that the plaintiff is incapable of performing her pre-injury duties and also incapable of performing any suitable employment. She now lives in Mount Barker in South Australia, is dominantly right handed, has limited education and work history, and suffers pain symptoms in her right arm. I appreciate that many of the doctors, although finding the plaintiff totally incapacitated for work, have taken into account, perhaps understandably, the total presentation of the plaintiff which also would involve complaints of pain in her left shoulder and arm (which is asserted to flow from her right arm problems) and her anxious state.

132 After a consideration of all of the evidence, I consider it totally unrealistic to consider that the plaintiff is fit for suitable employment with persisting carpal tunnel symptoms and ulnar nerve symptoms in her right arm, on the basis that such injury has given rise to a right arm impairment which is a “serious injury” within the meaning of the Act.[85] I am of a similar view if you treat the carpal tunnel syndrome and the ulnar neuritis as separate impairments. Each impairment would have the same consequences.

[85] See Giankos v SPC Ardmona Operations Limited [2011] VSCA 121, and in particular paragraph [115]

Conclusion

133 Accordingly, given my finding in relation to pecuniary loss damages, I grant leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages against each defendant for a right arm injury suffered by her during the course of her employment with each of the defendants.

134 I will hear the parties on the question of costs.

- - -

Annexure “A”

1 The plaintiff tendered the following documents:

(a) Exhibit 1

· Affidavits of the plaintiff sworn on 2 June 2010 (two affidavits) and 4 November 2011, found at pages 1-12 of the Plaintiff’s Court Book (“PCB”);

(b)Exhibit 2
·Operation notes dated 9 October 2006.
·Motor and sensory conduction study dated 26 July 2007.
·Ultrasound of the right shoulder dated 5 November 2008.
·X-ray of the right shoulder/elbow/wrist and ultrasound of the right shoulder/elbow dated 16 January 2009.
·Medical reports of the hand surgeon, Mr Stephen Tham, dated 13 June 2006, 20 October 2006, 18 December 2006, 23 July 2007 and 10 December 2009.
·Medical report of the hand surgeon, Mr Frank Ham, dated 4 December 2007.
·Medical reports of the treating general practitioner, Dr Jim Dermitzoglou, dated 15 August 2008, 17 August 2008, 11 November 2008 and 12 November 2009.
·Medical report of the general surgeon, Mr Peter Mangos, dated 18 August 2008.
·Medical reports of the orthopaedic surgeon, Mr Michael Khan, dated 23 January 2009 and 4 February 2009.
·Medical reports of vascular physician, Dr Peter Blombery, dated 12 March 2009, 8 April 2009, 7 May 2009, 10 June 2009, 9 July 2009, 24 September 2009, 1 October 2009 and 18 December 2009.
·Medical reports of the rehabilitation specialist, Dr Clayton Thomas, dated 20 July 2010 and 4 November 2011.
·Report of the orthopaedic surgeon, Mr Rodney Simm, dated 29 September 2011.
·Report of the orthopaedic surgeon, Mr Kevin King, dated 3 November 2011.
·Report of the general practitioner, Dr John Arthurson, dated 23 December 2011.
·Report of the orthopaedic surgeon, Mr Michael Dooley, dated 20 January 2012.

All such documents are found at pages 49-97 and 108-140 PCB.
(c)Exhibit 3
·Incident notification form regarding Primeward Pty Ltd dated 23 August 2005.
·Incident notification form regarding Primeward Pty Ltd dated 7 November 2005.
·Incident/injury report dated 3 March 2006.
·Incident notification form dated 5 April 2006.
·Employer’s notification form.

All such documents are found at pages 145-148 and 152-153 PCB.
(d)Exhibit 4
·Letter from Punt Hill Apartments Hotel and Serviced Apartments dated 4 April 2006.
·Letter from L McGee to the plaintiff dated 13 July 2006.
·Various documentation from Gallagher Bassett under cover of letter dated 4 March 2009.

All such documents are found at pages 154-164 PCB.
(e)Exhibit 5
·Index of the first defendants’ Court Book (“FDCB”).

2 The first defendant tendered the following material:

(a) Exhibit Z

· Notes from the Dandenong Medical Clinic (Dr Dermitzoglou) consisting of one handwritten page and several computer-generated pages.

(b) Exhibit Y

· X-ray of the right wrist collected on 1 August 2002.

(c) Exhibit X

· Certificates from the Heritage Clinic dated 21 September 2000 and 6 November 2000.

All such documents are found at pages 42-43 of the FDCB.

(d) Exhibit W

· Medical reports of the general surgeon, Mr D Marshall, dated 19 February 2007 and 15 April 2008.

· Medical report of the orthopaedic surgeon, Mr C Jones, dated 21 March 2008.

· Medical reports of the plastic and hand surgeon, Mr M J Stapleton, dated 5 December 2008, 12 January 2009 and 26 February 2009.

· The medical report of the psychiatrist, Dr M Rose, dated 19 December 2008.

All such documents are found at pages 53-85 of the FDCB.

· Report of the psychiatrist, Dr N Paoletti, dated 19 August 2009.

This report is found at pages 98-107 of the PCB.

3 The second defendant tendered the following material:

(e) Exhibit A

· WorkCover Claim Form signed by the plaintiff on 5 April 2006.

This report is found at pages 149-151 PCB.

(f) Exhibit B

· Certificates of Capacity in respect of examinations on 22 March 2006 and 17 April 2006, together with medical certificate dated 31 March 2006.

(g) Exhibit C

· Worker’s Claim for Impairment Benefits form dated 18 November 2008 found at pages 3-4 of FDCB.

(h) Exhibit D

· Ultrasound of right shoulder by Dr S Erchant dated 3 April 2006.

· Motor and sensory conduction studies by Dr H Kranz dated 8 June 2006.

· Medical reports of vascular physician, Dr P Blombery, dated 22 April 2010 and 17 June 2010.

Such documents are found at pages 3-6 of the Second Defendant’s Court Book (“SDCB”).

[2012] VCC 1745

20 December 2012