Baltovski v Mushroomexchange Pty Ltd
[2011] VCC 1199
•28 July 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03521
| MARA BALTOVSKI | Plaintiff |
| v | |
| MUSHROOMEXCHANGE PTY LTD | Defendant |
| (formerly Chiquita Mushrooms Pty Ltd) |
---
| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 21 July 2011 |
| DATE OF JUDGMENT: | 28 July 2011 (Revised) |
| CASE MAY BE CITED AS: | Baltovski v Mushroomexchange Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1199 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – whether consequences of injury meet statutory threshold – identification of consequences of organic injury independently of effect of psychological factors – application with respect to both pain and suffering and pecuniary loss consequences.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with | Maurice Blackburn Pty Ltd |
| Mr G Wicks | ||
| For the Defendant | Ms R L Kaye | Hall & Wilcox |
| HIS HONOUR: |
1 In this matter, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by her in the course of her employment with the defendant. The injury relied upon by the plaintiff is one to her left shoulder in the form of a rotator cuff tear of the shoulder and the impairment of function is that of the left shoulder and arm.
2 In the proceeding, the plaintiff relies upon two affidavits sworn by her on 7 April 2010 and 5 July 2011 respectively. In addition, the plaintiff gave evidence in the proceeding and was cross-examined. Otherwise the parties rely upon medical reports and other material tendered by them.
The Issues
3 In this application, Ms Kaye of Counsel, who appeared on behalf of the defendant, raises two main issues for my determination, namely:
[1] See Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167
(i) the severity of the consequences associated with the injury occasioned to the plaintiff’s left shoulder upon her life, lifestyle and her capacity to work; (ii) the requirement to isolate and consider the consequences associated with the plaintiff’s physical injury when the influence of any non-organic factors upon the function of the plaintiff’s left shoulder have been excluded.[1] 4 Each of these issues have been correctly identified as being of primary importance to my analysis of the evidence in this matter.
The affidavit evidence
5 In her first affidavit the plaintiff deposed as follows:
• She was born in Macedonia on 1 May 1959 and migrated to Australia at the age of approximately twenty-one. Her history of employment since arriving in Australia involved unskilled work, consisting of – (i) working as a packer at Better Foods for approximately twelve months;
(ii) working in a plastics factory for approximately twelve months;
(iii) working as a packer at Latina Pasta for approximately three years;
(iv) working at a picture framing factory for approximately twelve months.
•
She commenced employment with the defendant picking mushrooms in 1996. Her work involved harvesting mushrooms, which she would do by taking the mushroom in her left hand and cutting the mushroom stalk with a blade held in her right hand. She said that after they were picked, the mushrooms were sorted into boxes on a trolley and that when the trolley contained ten boxes it would be wheeled to the weighing station which was located in a corridor outside the shed. The plaintiff described her work in picking mushrooms as involving repetitive reaching, pushing and pulling and the use of her arms above horizontal. She described a quota of four boxes per hour as being imposed upon her, but said that because of the presence of a bonus incentive program, she would fill anywhere between three and twenty boxes of mushrooms per hour.
•
On 15 September 2004, she had consulted the “physiotherapist at work” owing to the presence of “neck and shoulder complaints”. She said that she was advised by the physiotherapist to see a doctor but that because she did not “want to go off on WorkCover, I took a week’s leave instead, hoping that my problems would resolve with rest”.
•
Given the continued presence of symptoms, she consulted Dr Julian Lamba, a general practitioner, in November 2004, who prescribed medication for her use, advised her to continue with physiotherapy and referred her for both x-rays of her cervical spine, an ultrasound of her left shoulder and subsequently, an ultrasound of her right shoulder.
•
In April 2006, she was referred to Mr John Owen, an orthopaedic surgeon, who administered a trial of injections which the plaintiff described as helping only for a short while and who, on 8 July 2005, performed an arthroscopy of the plaintiff’s left shoulder. The plaintiff said that following this procedure she made a slow recovery and returned to work on 29 August 2005 on a graduated basis.
•
On returning to work, she suffered from ongoing pain and stiffness in both her shoulders. She said that as she increased her hours of work, she suffered from pain together with numbness in her left arm.
•
On 29 November 2005, the plaintiff consulted Dr Yacoub at the suggestion of the nurse at work who thereafter undertook the management of her condition.
•
By April 2006 the plaintiff felt well enough to return to normal duties on a full-time basis. She said, however, that her:
“… condition fluctuated. I never made a complete recovery. My left shoulder pain was noticeably worse at the working day. I saw Dr Yacoub from time to time but I continued full time normal duties albeit with ongoing pain and limitations.[2]
[2] PCB16
•
In September 2006, the plaintiff’s left shoulder pain worsened following the period of what she described as “hard work”. She said that in management of these symptoms she consulted Dr Yacoub who referred her for a further ultrasound of her left shoulder. She said that Dr Yacoub prescribed anti-inflammatory medication for her use and whilst this medication assisted her:
“The harder I worked at picking, the worse the pain became. I was advised by Dr Yacoub to slow down and avoid lifting boxes above shoulder height.”[3]
[3] PCB 16
• The plaintiff ceased working with the defendant on 9 February 2007 when she was retrenched. Following her retrenchment she consulted Dr Yacoub, who referred her to Mr Owen: “… who I saw on about 18 February 2007. He said there was nothing more he could do. He suggested that I should learn to live with the pain.”
•
She had become “nervous and frustrated” by reason of her symptoms and “I started to get depressed”. The plaintiff said that in 2008 Dr Yacoub had referred her to Dr Terrence Lim at the North Eastern Rehabilitation Centre in Ivanhoe and that she had also consulted Dr Whitehouse, a psychiatrist attached to the Centre. She described her monthly sessions with Dr Whitehouse as being very helpful in settling her mood swings but said that despite that improvement, her emotional symptoms lingered.
•
The plaintiff had undergone a further ultrasound in April 2009 and had been administered with an injection which had helped ease her pain for a short period of time.
•
As at 7 April 2010, the plaintiff suffered from constant pain in her left shoulder which was aggravated by her use of her left arm. She said she suffered from “pins and needles” in her arm below her elbow and into her ring finger and that these symptoms were present when the pain in her shoulder was severe. She described her psychological state as continuing although it was “somewhat improved following my treatment by Dr Whitehouse”. She said that she avoided heavier household tasks such as vacuuming or mopping and “above shoulder activities such as hanging out the washing”. She described difficulty in cooking and shopping and having a reduced tolerance to driving. She said that her injuries impacted upon her ability to engage in activities
“… such as washing my hair or putting my bra on. Even passing a
plate of food can be difficult.”
• She described having to ask her husband to undertake the heavier work around the kitchen such as lifting pots or putting things into or taking things out of, the oven; and that she experienced problems sleeping, particularly if she rolled onto her left shoulder. She said she employed physiotherapy on a fortnightly basis together with the use of a hot pack and a Tens machine at home in order to manage her symptoms and that she had been prescribed Celebrex for pain management, Panamax for headaches and Cymbalta for depression. • The plaintiff had not worked since she was retrenched in February 2007. She said that throughout her working life she had always undertaken physically demanding jobs; and that as the result of her injuries, she was unable to perform such work. 6 In her second affidavit, the plaintiff described her left shoulder as continuing to be her main problem. She said that she suffered from constant pain which was worsened by activity. She said that she continued to be depressed and worried about her future but that she had been assisted by the treatment she had received from Dr Whitehouse. She described her psychological condition as not being her main worry. She said that she employed Celebrex, an anti- inflammatory, to control her pain and took Panamax for headaches, Cymbalta for depression, and Seroquel to assist her to sleep. She said she had not worked since her previous affidavit and had not been offered retraining or vocational rehabilitation support.
The Plaintiff’s Viva Voce Evidence
7 In viva voce evidence, the plaintiff said that her husband, who had been self- employed, had not worked for perhaps more than fifteen years after having suffered a serious injury in the course of the excavation business which he conducted. She was asked:
“Q: From a financial perspective, with you off work since February 2007, and your husband not working since the mid nineties or the mid eighties, depending on the view we take, and his mother to care for, it’s fair to say that there’s been some financial pressures on you in the last three or four years?--- A: Yes, that’s right and we’re using the money that I took from the package.”[4][4] T 25
8 The plaintiff said that she could not read English,[5] that her natural language was Macedonian and that she spoke to her children in that language.[6] She said that in the course of her employment with the defendant, she spoke to her fellow workers in English explaining her proficiency in English and the nature of her conversation with her fellow workers as follows:
“Yes, some of the basic things like, how many boxes did you do?”[7]
[5] T 33
[6] T 29
[7] T 29
9 The plaintiff said that after her operation she had returned to work on a graduated basis; that by March 2006 she was comfortably exceeding her restricted quota; and that at that time she had elected to return to full time work because she liked her work and full time work enabled her to qualify for bonus payments. She said that thereafter she had continued to work normal hours on an unrestricted basis. She described her hours as not being set hours and said that her work was dependent upon the quantity of mushrooms available for picking.
10 During the period between her return to full time work and her retrenchment in
February 2007, the plaintiff was asked:
Q: “But you were doing your regular duties, so you were sort of
soldiering on despite pain?---A: Yes. Q: You didn’t have to alter your duties in any way?--- A: No.”
11 The plaintiff said that whilst she worked with pain and was aware of the process that she should obtain a “WorkCover certificate if she required lighter duties”. She did not seek a certificate from her general practitioner explaining:
A: “Well I didn’t go. I mean, you know, the place was closing down.
The workers, they were getting rid of the workers, the full timers.”Q: Can you just answer my question please. My question was, during the period May 2006 to February 2007, you didn’t go to Dr Yacoub who was your general practitioner at that time, and ask him for a WorkCover certificate on the basis that you weren’t able to work or that you weren’t able to do some of your duties and needed lighter duties?--- A: He was telling me to slow down. Q: So the answer to my question is no?--- A: No, I didn’t ask for that, no.”[8] [8] T 38-39
12 It was put to the plaintiff that she made no complaint to her supervisor, Ms Doris Kramer, that she was having difficulties performing her work.[9] The plaintiff denied this assertion however.[10]
[9] In this respect, Ms Kramer has sworn an affidavit that the plaintiff had made no complaints that she was experiencing any symptoms whilst performing her duties (DCB 2).
[10] T 37-38
13 The plaintiff said that the pain management program she had undertaken under Dr Lim had enabled her to better manage things. She said that whilst she still had pain, she was able to do things such as vacuuming, which she did slowly, explaining:
“I do the things that I can do and if I can’t manage, I stop.”[11]
[11] T 46
14 In re-examination, the plaintiff was asked the question:
Q:
“Ms Baltovski, you were asked the questions about the mushroom place and the retrenchment process. You answered. You said the place was closing down. Do you remember saying that when you answered that question?---
A: What I meant to say was that they closed down the full timers.
They were hiring them through an agency.Q:
When did you have any knowledge that this process was going to take place? I should say, when did you first have any knowledge that this process was going to take place?---
A: A couple of months before, I guess, because they would tell us. Q: Ms Baltovski, when you were retrenched, just before you were
retrenched, how many hours were you working a week?---A: Full hours, but like I said, you don’t work full hours there. Q: What does that mean on average roughly, how many hours a
week?---A: It all depends for the size of the mushrooms. It would be twenty,
twenty-four hours, we could work in the sheds.”
15 In explaining why the plaintiff had continued to work up to her retrenchment notwithstanding the fact that she was having problems with her shoulders the plaintiff was asked :
Q: “During that period why didn’t you just stop work?--- A: I couldn’t’, I needed the money.”[12] [12] T 48
Findings as to the Plaintiff’s Evidence
16 No issue is taken as to the plaintiff’s credit in this proceeding although a dispute arises as to whether the plaintiff experienced any difficulty undertaking her duties upon returning to work with the defendant.
17 Given:
•
the independent evidence of the defendant’s “ on site “ physiotherapist Ms Z Tripathy[13] which tends to corroborate the plaintiff’s evidence on this issue;
•
the evidence of Dr Yacoub as to the plaintiff’s attendances upon him in late 2006 and early 2007 and the complaints made by her at that time;[14]
[13] PCB 53
[14] PCB 32-33
there are good grounds for accepting the plaintiff’s evidence on this issue in
preference to that of Ms Kramer and I do so.
The Medical Evidence
18 In a report dated 13 May 2007, Ms Zalak Tripathi, a physiotherapist, describes herself as the on-site physiotherapist “at Chiquita Mushrooms”. She reports that the plaintiff first presented to her on 29 July 1999 with symptoms of middle back pain causing “pins and needles”. She said that on 15 September 2004 the plaintiff presented with neck and bilateral shoulder and arm pain and that –
“… she was advised to see doctor and take some anti-inflammatory tablets. Mara was reluctant to see doctor because she did not want to go on WorkCover.”
(sic).
19 Ms Tripathi reported:
• that the plaintiff had taken a week off work but that after returning to work her symptoms were exacerbated; • that the plaintiff had undergone a cortisone injection and a rotator cuff repair which procedure was undertaken on 8 July 2005; • that the plaintiff had returned to light duties on 28 August 2005; • that: “Mara was advised to return gradually back to picking. Mara jumped from four hours/day, straight into full time normal duties. She was encouraged to take it easy but she mentioned that she didn’t need any more physio and she wanted to go off WorkCover as soon as possible. According to other pickers who worked around Mara mentioned (sic) that Mara was under a lot of pain (sic) but didn’t want to waste time after physiotherapy.”
• that the plaintiff’s work as a mushroom picker involved pulling and 20 As at 13 May 2007, Ms Tripathi opined:
“I believe that Mara will have difficulty returning to any job which involves keeping arm at shoulder level or any repetitive work. Mara has inability to perform lifting duties greater than two kilograms, without pain in her shoulder. Pre-injury employment is therefore not suitable as it involves majority of repetitive work and lifting heavy boxes and pushing/pulling trolleys.”[15]
[15] T 55
21 In a report dated 26 June 2007, Dr G Lamba, the plaintiff’s general practitioner, described the plaintiff as presenting to him on 13 December 2004 with a history of bilateral shoulder pain associated with her work which involved picking mushrooms. Dr Lamba diagnosed the plaintiff as suffering from “inverted overuse syndrome – tendonitis – tendon tear both shoulders”. He said:
• that the plaintiff had been referred to Mr John Owen, an orthopaedic surgeon, who had undertaken surgical treatment; • that post-operatively the plaintiff had returned to work on the basis that she worked four hours a day three days a week on modified duties; • that on 29 November 2005, the plaintiff had presented to him complaining of pain and stiffness “off and on” and that he had not seen the plaintiff since that date, although he had certified her “to try her normal duties” on 30 November 2005. [16] [16] T 59
22 In a report dated 10 May 2007, Mr John Owen states that he first saw the plaintiff on 6 April 2005, at which time he made a diagnosis of the presence of mild rotator cuff impingement. He observed:
“The patient had feigned motor weakness in all muscle groups in the upper limbs so it was very difficult to sort out how organic this lady’s problem was. I concluded that given her ultrasound was positive, that I suspected that she did get rotator cuff impingement and I noted that she needed repeat investigations. I thought she was a poor risk for surgery. I injected the subacromial space with local anaesthetic and steroid and it helped. When I reviewed the patient on 18 April 2005 she still had positive impingement signs. She commented that the previous injection had helped her a little and I repeated the injection. I again reviewed the patient on 4 June. She told me that the injection had helped but she still remained in pain and therefore I elected to offer a decompression in spite of my reservations about her suitability for surgery. On 8 July 2005 I operated on the left shoulder doing the standard subacromial impingement. By July 2005 the patient had made a reasonable recovery and I felt that she was capable of returning to work.”[17]
[17] T 51
23 In my opinion, Mr Owen’s reference to “feigned motor weakness in all muscle groups” and the presence of a difficulty in sorting out how organic the plaintiff’s presentation is a clear indication that Mr Owen was of the opinion that the presence of emotional factors were playing a significant part in the plaintiff’s overall presentation. My feeling as to the validity of that opinion however is influenced by the fact that the plaintiff:
• reported a positive response to the two injections administered by Dr Owen into her subacromial space; • underwent a decompression operation, from which she made a reasonable recovery; • that shortly following her surgery the plaintiff returned to work; the combination of these factors tends, in my view, to suggest that whilst the plaintiff’s presentation was influenced by emotional factors, her primary presentation was associated with the presence of an organic condition; and in so far as Mr Owen was expressing an opinion to the contrary I do not find it to be persuasive.
24 The plaintiff presented to Dr N Yacoub, a general practitioner, on 14 December 2005.
25 In a report dated 3 July 2007, Dr Yacoub reports that at the time of her presentation the plaintiff:
“… was on the gradual return to picking mushrooms on an increasing hourly basis as per her job offer. She was receiving physiotherapy twice a week at the time with further good progress in her condition.
By the end of April 2006 she requested return to full duties and she was feeling well enough to do so.”[18]
[18] T 32 – This reported improvement in the plaintiff’s condition following her surgery reinforces the view which I have taken as to the presence of an organic injury as bearing the major responsibility for the plaintiff’s presentation at this time.
26 Dr Yacoub reported that the plaintiff’s condition thereafter continued to fluctuate; that by September the plaintiff was complaining of pain in her left shoulder and that as the result of a similar complaint as at November 2009 at which time the plaintiff presented with:
• interscapular pain; • reduced range of movement; • the plaintiff was referred for a further ultrasound which led to Dr Yacoub diagnosing the plaintiff as suffering from “bicepts (sic) tendinosis and subdeltoid bursitis, no muscle tears”.
27 Dr Yacoub reports that he prescribed anti-inflammatory medication for the
plaintiff’s use and reported that as at 31 January 2007 the plaintiff described
her pain as being:
“… under control (with the tablets) and that her pain is worse only if working hard. She was advised to slow down and avoid lifting boxes above shoulder height. Mara returned on 15 February 2007 with continuous pain to the left shoulder. She mentioned that she was terminated from the job.”
28 As at 3 July 2007, Dr Yacoub opined that the plaintiff had suffered injuries to both her shoulders, the left being more severe than the right; that her injuries were –
“… consistent with the state of her employment history;[19]
[19] PCB 34
that she was
“… considered totally disabled to return to pre-injury duties or any work she is skilled or trained to do in the past. Future work capacity is dependent upon her rehabilitation and suitable employment.”[20]
[20] PCB 34
29 Somewhat surprisingly, in a report dated 29 July 2009, Dr Yacoub expressed the following opinion as to the plaintiff’s capacity for work at that time:
“It is my understanding that her termination was not the result of her work related injury as she was on full time duties at that time. As there was no further WorkCover certificates issued after her formal return to work and that her work termination was not because of her injury, I do not see how we can issue any further certificates from the date of termination and on what basis.
If her job was still on offer, she would be working full time up until now. Her condition has stabilised with no further setbacks when she was on full duties.”
30 Having regard to the repeated presentation by the plaintiff to Dr Yacoub late in
November 2006 and early in 2007, which was such that Dr Yacoub:
• was motivated to prescribe anti-inflammatories for her use and refer her for an ultrasound; • diagnosed the plaintiff as presenting with tendonosis and subdeltoid bursitis; the comments made by Dr Yacoub in his report of 29 July 2009 as to the plaintiff’s capacity to carry out her previous employment make little sense and are not in my view persuasive. For these reasons I find the opinion of Ms Tripathi on this issue to be much more persuasive as to the long term effect of the plaintiff’s injury upon her capacity for employment.
31 In a further report dated 20 April 2011, Dr Yacoub reported that the plaintiff had been referred to Dr Terrence Lim, a pain management specialist, in May 2010 and to Dr Bethany Whitehouse, a psychiatrist, and commented:
“Ms Baltovski has become focussed on physical causes to her ongoing pain and feels the work type and timing has made her pain become chronic. She has started on anti-depressants to control her condition.”
32 Mr John Owen reports that the plaintiff re-presented to him on 18 April 2007 complaining of persisting pains in her left shoulder and her neck. On examination, Mr Owen commented:
“Again when I examined the patient she had signs of non-organic pathology in that she had multi-local tenderness, feigned loss of movement and weakness and I thought that most of her examination was inconsistent. I wrote back to her general practitioner that I thought the patient was suffering from a chronic pain state and should be referred to Dr Terrence Lim, an expert in pain management and rehabilitation.”
33 Dr Owen opined that the plaintiff’s work was responsible for:
“… some aggravation of an underlying condition in her shoulder pathology. The patient has developed a chronic regional pain state. This is going to complicate any future employment that she may attempt. In terms of her long term prognosis, I do not think that any further surgical intervention could help stop. It is likely that Dr Lim would be able to get her comfortable enough to do activities of daily living, but I would imagine that the patient would be incapable of working now because of this chronic regional pain state. The prognosis would be very poor for her being employable.”
34 It is submitted on behalf of the defendant that the findings upon examination of Dr Owen and the opinion expressed by him to which I have referred, clearly support a finding that in Mr Owen’s opinion the plaintiff’s presentation as at April 2007 was primarily non organic in nature. I accept that this is a valid interpretation of Mr Owen’s Opinion.
35 Dr Terrence Lim examined the plaintiff in August 2007 at which time he
reported to Dr Yacoub that the plaintiff presented as a pleasant and relatively
cooperative patient who suffered from –
“… extremely limited global range of neck and shoulder ranges of movement due to the combination of muscle stiffness and pain exacerbation.”
36 In a letter dated 19 May 2009 to Dr Beth Whitehouse (a psychiatrist attached to Dr Lim’s Pain Management Unit), Dr Lim commented that the plaintiff was -
“… entrenched in a chronic pain syndrome where her whole life is totally focussed on and dominated by her pain. This has left her increasingly dependent, demoralised and depressed and disabled.”[21]
[21] DCB 15C
37 He said that he had offered the plaintiff management in the form of a pain rehabilitation program:
“… where the focus is on her to take responsibility, actively participate and acquire the knowledge and skills to become her own pain therapist/pain manager, so that she can self-treat/manage to reduce her degree of disability – I warned her that she must increase function if she is to have any chance of desensitising to reduce her levels of pain. I also confirmed again that there is no cure to chronic pain.
However, Ms Baltovski did reassure me that it was perfectly clear that the aim of the program was as I have noted above and would not be focussed on the injury and she is accepting of this. I did raise it with her many times throughout the course of this reassessment and each time she accepted how I presented the program.
Therefore I shall ask Helen Robinson, our pain coordinator, to request funding from WorkCover for a team assessment.”[22]
[22] DCB 15D
38 Notwithstanding the opinion expressed by Mr Owen, which I have interpreted as supporting the position that the plaintiff’s presentation was mainly attributable to non-organic factors; I interpret the comments made by Dr Lim in his report of 19 May 2009, and in particular:
• his reference to the need to desensitise the plaintiff so as to reduce her levels of pain: • his statement that “there is no cure to chronic pain;” as supporting the position that the plaintiff’s symptoms were primarily organic
in nature.
39 In a report dated 4 May 2010, Dr Lim commented that the plaintiff had completed an eight week intensive rehabilitation program, that she had done relatively well given her severe degree of entrenchment in a chronic pain syndrome and that she had become her own pain therapist/pain manager.
40 Dr Beth Whitehouse, a psychiatrist, in a report dated 14 July 2009,
commented:
“Ms Baltovski presented with a major depressive disorder of mild severity with prominent anxiety symptoms. Additionally she presents with pain disorder associated with both psychological factors and general medication condition.
For an opinion about the physical injuries, please refer to the appropriate specialist. With regards to depression, she presents with a history of first onset of depression after her injury and with cognitions related to the injury which indicate the injury was the major precipitant to the development of depression. With regards to the chronic pain condition; I regard the condition in Mrs Baltovski to have been largely physical or organic, as occurs in a percentage of people who have an injury. However, the psychological association specification is indicated due to pain exhibiting depression symptoms and vice versa.”
41 It is clear that Dr Whitehouse was expressing the opinion that the plaintiff’s chronic pain condition was primarily physical in origin. Having regard to her position as a psychiatrist working in a liaison capacity with the North Eastern Rehabilitation Centre, a position which Dr Whitehouse has occupied since 2005;[23] and the fact that she had assessed of the plaintiff on nine occasions at the time at which she authored her July 2009 report; I am of the opinion that Dr Whitehouse is well placed to express an opinion as to the nature and cause of the plaintiff’s symptoms and I find her opinion in this regard persuasive. In making this finding I prefer the opinion of Dr Whitehouse on this issue to that expressed Mr Owen[24] which I consider was likely to have been influenced by the opinion which he had earlier formed as to the relevance of the plaintiff’s “chronic regional pain syndrome”[25] which I have previously found not to be persuasive.
[23] PCB 42
[24] See Mr Owen’s comments as to his consultation with the plaintiff in April 2007 and his comment that the plaintiff had no adequate reason for being of work for a long time; PCB 51
[25] PCB52
42 Whilst Dr Whitehouse has authored two further reports dated 19 July 2010 and 29 May 2011, in neither of those reports does she retract or further develop the opinion which she expressed as to the causation of the plaintiff’s symptoms to which I have already referred. In her report of 29 May 2011 however, Dr Whitehouse describes the plaintiff as presenting with:
(i) depression;
(ii) chronic pain: commenting; “The general medical condition is central sensitisation following working injury. The psychological component includes depression and anxiety interacting with pain episodes to worsen them and reduced general functioning. However this aspect has improved over the last year following her participation in the pain program at NERC. The symptoms are consistent with the stated cause.
Anxiety and depressive symptoms no longer limit her ability to work, however, if a return to work exacerbates chronic pain and overwhelms her strategies to manage this, she will again worsen in mood and anxiety.”
43 In a report dated 29 May 2011, Mr Chris Haw, a hand and orthopaedic surgeon, opined that the plaintiff presented with bilateral degenerative problems in both her shoulders which had been aggravated by her work, that she was suffering from bicipital tendonitis and bursitis in her left shoulder and probably a similar condition in her right shoulder; that her injuries were related to her work; that she was incapable of resuming her pre-injury employment –
“… or any other similar physically related employment and because of her very limited language skills, it is my impression that she has a total incapacity for work which is permanent.”[26]
[26] PCB 63
44 Whilst Mr Haw commented:
“I think the prognosis is one of ongoing symptoms of physical nature, but which are complicated by severe depression and I would suggest a psychological assessment to determine how much of this is intrinsic and how much is related to her psychical disability.”
I am satisfied that the opinion of Dr Whitehouse as to the prominence of an
organic condition in the plaintiff’s presentation deals with the issue raised by
Mr Haw.
45 Dr Kevin Fraser, a rheumatologist, has examined the plaintiff on two occasions. In his report dated 25 June 2010, Dr Fraser opined that on examination the plaintiff presented with a marked over-reaction and accordingly that her presentation was coloured by non-organic factors. Mr Fraser opined:
“I do not consider that there is any ongoing work related injury in this case. In fact she does not claimed (sic) that there was any specific injury, rather noticing a gradual onset of shoulder girdle pain, initially on the left, assumingly aggravated by her activities at work as described previously.
The ultrasounds had fairly consistently shown supraspinatus tendinopathy/subacromial bursitis and I would accept that there was probably aggravation of age-related rotator cuff degeneration in the course of her work.
However, although she now claims that there was little improvement with her treatment, she did in fact get back to full normal duties following arthroscopic subacromial decompression of her left shoulder and she continued with these until she was retrenched around February 2007.
Her current presentation is obviously coloured by non-organic factors, which were also noted when she saw Dr John Owen as per his report of 10 May 2007. It is quite clear that she is now exaggerating his (sic) symptoms and her disability in respect of her shoulders and the upper limbs more generally, as well as neck.
To the doubtful extent that there is any organic basis for the ongoing shoulder girdle pain, it is, in my opinion, due to age related degenerative changes and not to her employment … from a physical point of view the fact that she was doing her normal duties up until she was retrenched which would suggest that she might be fit for work as a mushroom picker. Unfortunately, the over-reaction on physical examination makes it impossible to assess if there is any significant incapacity. However, given that she has age-related rotator cuff degeneration, such work might cause symptomatic aggravation and in general it would be best for her to avoid activities requiring any heavy lifting (greater than 3 kilograms) or any overhead, rapidly repetitive or forceful use of the arms.”[27]
[27] DCB 33
46 In a further report dated 17 March 2011, Mr Fraser made similar comments.
47 Whilst Mr Fraser gives no explanation of the basis for the opinion expressed by him as to the recovery by the plaintiff from the work related aggravation of the plaintiff’s rotator cuff degeneration, I interpret his opinion as being based upon the fact that the plaintiff underwent a subacromial decompression and was thereafter able to return to work and undertake full time unrestricted duties until being retrenched in February 2007.[28]
[28] Although it is clear that Mr Fraser obtained a history from the plaintiff that she encountered difficulties on her return to work (DCB 31), his comment as to that history namely: “However, although she now claims that there was little improvement with her treatment she did in fact get back to normal duties” suggests that he discounted it when considering the relationship between the plaintiff’s symptoms and her initial work-related injury.
48 When one examines the true history of the plaintiff’s condition upon her return
to work namely that;
•
the plaintiff suffered ongoing symptoms of pain the presence of which was confirmed by fellow workers;[29]
•
the plaintiff presented to Dr Yacoub September and November 2006 with symptoms of pain sufficient to motivate him to refer her for an ultrasound investigation;
•
between November 2006 and January 2007, the plaintiff was employing anti-inflammatory medication to manage her condition and was reporting to Dr Yacoub that her pain was increased “if working hard”,
[29] PCB 53
the basis for the opinion by Mr Fraser that the plaintiff had effectively recovered from her work related condition and that any physical condition with which she presented to him was age-related rather than employment related, is in my opinion completely undermined. For this reason I do not accept the opinion expressed by Mr Fraser, that the plaintiff’s symptoms at the time he examined her were not work-related.
49 It was Mr Fraser’s opinion that the plaintiff’s physical condition is such that it restricted her from work involving lifting weights of greater than 3 kilograms or work involving overhead, rapidly repetitive, or forceful use of her arms. For the reasons earlier expressed I am satisfied that this opinion relates to a physical condition which is work related. In this regard there is a striking similarity between opinion expressed by Mr Fraser as to the physical incapacity with which the plaintiff presents, and that expressed by both Mr Haw and Ms Tripathi.
50 My finding as to the relevance of the plaintiff’s organic injury as being primarily responsible for the presence of her symptoms is further reinforced:
•
By the findings of the various ultrasounds taken of the plaintiff’s left shoulder which have consistently described the presence of fluid of the biceps tendon consistent with tenosynovitis of that structure, muscle bunching and bursitis, which was described in the ultrasound of 14 November 2006 as being chronic and was reported in similar terms in the ultrasound of April 2009 and the ultrasound of April 2011.
•
By the opinion expressed by Mr Roy Karna who conducted an impairment assessment of the plaintiff’s left shoulder for the purposes of the Accident Compensation Act and who opined that the plaintiff presented with a 13 per cent impairment of her left shoulder which had stabilised.
• The consistency in the level of reduced movement of the plaintiff’s left and right arms in the two examinations undertaken by Mr Fraser in
June 2010 and March 2011 notwithstanding the time which separated
those opinions.
51 In assessing the claim by the plaintiff that the injury to her left shoulder has
effectively destroyed her capacity for employment I take into account:
•
Firstly, the plaintiff’s long work history with the defendant which, when considered in the context of –
ƒ the plaintiff’s initial reluctance to cease working, notwithstanding the
onset of her symptoms;ƒ the plaintiff’s return to work shortly after undergoing surgery on her
left shoulder, andƒ the plaintiff continuing to perform her duties, notwithstanding the
symptoms which the performance of her work was causing,satisfies me that the plaintiff was well motivated and possessed a good
work ethic.
• Secondly, the fact that in the five years prior to the plaintiff’s injury, her income was in the vicinity of $50,000 gross per annum or more (with the exception of the 2006 financial year during which her income was $41,507) which in my opinion also attests to the plaintiff’s work ethic. • Thirdly, the consistency between the opinions expressed by:
ƒ Ms Tripathi in May 2007; ƒ Dr Fraser in June 2010; ƒ Mr Chris Haw in June 2010; as to the plaintiff’s physical capacity for employment.
•
Fourthly, the evidence given by the plaintiff as to the effect of her husband’s long term incapacity for employment upon their financial position which gives context to the evidence given by the plaintiff as to the importance of her work to her and which I accept.
•
Fifthly, the plaintiff’s history of employment, which was limited to unskilled physical work to the point the plaintiff described her working life as always having involved physically demanding jobs.[30]
• Sixthly, the plaintiff’s poor command of English and her illiteracy. [30] PCB 20 - no issue is taken with that statement.
When all the above factors are taken into account, the evidence satisfies me that the injury sustained by the plaintiff to her left shoulder in the course of her employment has had the effect of reducing the range of work available to her to such an extent that the opinion expressed by Mr Haw, namely that the plaintiff now presents with a total incapacity for work, represents an accurate assessment of the impact which her injury has had upon her employability.
52 Further, I am satisfied that, given the duration of the plaintiff’s incapacity when considered in the context of each of the factors to which I have referred above, the plaintiff ‘s employability is unlikely to be influenced to in any positive way by retraining or further rehabilitation.
53 In the circumstances, I am satisfied that:
(i) The plaintiff has established that the effect of the injury to her left shoulder has been such to occasion upon her a total loss of earning capacity having regard to the extreme restrictions which the plaintiff’s condition places upon the type and range of work which she is physically fit to undertake and that this incapacity meets the threshold imposed by the Act; (ii) That the plaintiff’s incapacity for work and the resultant loss of income associated with that incapacity represents for the plaintiff a loss which is more than significant or marked and at least very considerable when considered by comparison with other cases in the relevant range. 54 Having made these finding, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for both the pain and suffering and economic loss consequences of the injury to her left shoulder which she sustained in the course of her employment with the defendant.[31]
[31] Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)
55 I will hear the parties as to the precise form of the order which should be made and also upon the question of costs.
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