Bertucci v Yooralla Pty Ltd

[2017] VCC 1698

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-02278

VICKI ELIZABETH BERTUCCI	Plaintiff
v
YOORALLA PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2017
DATE OF JUDGMENT:	4 October 2017
CASE MAY BE CITED AS:	Bertucci v Yooralla Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VCC 1698

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:             Serious injury application – impairment of the left shoulder – cervical spine – causation – pain and suffering only

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592

Judgment:                 Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie QC with Mr J Fitzpatrick	Slater and Gordon
For the Defendant	Ms J Frederico	Russell Kennedy Lawyers

HER HONOUR:

Preliminary

1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in relation to an incident at work on 25 September 2012 (“the said date”).

2       The application is made under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and the plaintiff seeks leave to claim damages for pain and suffering only. Primarily, the body function said to be impaired is the left shoulder but there was also an application in relation to the cervical spine.[1]

[1]Transcript (“T”) 1

3       The plaintiff bears an overall burden of proof upon the balance of probabilities. 

4 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, “when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.

5       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

6       Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

7       I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.

[2](2005) 14 VR 622

[3](2006) 14 VR 602

8The defendant accepted that the plaintiff suffered an injury to the left shoulder and cervical spine in the incident,[4] but disputes that the impairment consequences in relation thereto are serious as at the date of hearing.[5]

[4]Letter accepting claim

[5]T55

9The plaintiff swore two affidavits and was cross-examined.  Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings.  I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to, and explain the conclusions reached in my judgment.

The plaintiff’s evidence

10      The plaintiff is aged sixty-one, having been born in July 1956.  She is married with three adult children.

11      The plaintiff attended school until Year 9 and then worked as a clerk at Woolworths for about two years.  She subsequently spent some time in the mailroom at Vic Roads and then worked in a canteen for about ten years.

12      The plaintiff owned and operated a health food shop in Eltham for about six years.  After selling that business, she worked as a kitchenhand at the Epping Hotel for approximately seven years.

13      Apart from an injury to her neck when she was sixteen, the plaintiff did not have any ongoing problems with her neck before starting work with the defendant.  Over the years, she had intermittent knee and hip pain as a result of playing netball.  Those injuries did not interfere with her ability to work or cause her any significant restrictions in her social or domestic activities.

14      On 19 September 2007, the plaintiff started work with the defendant as a disability support worker.  She worked permanent part time, on average fifty seven and a half hours per fortnight.  Her duties involved undertaking personal care tasks for residents and assisting them with transfers, dressing, feeding and activities of daily living.

The Incident

15      On the said date, the plaintiff injured her neck and left shoulder at the defendant’s residential units in Thornbury.  Whilst helping a resident move a large flat screen television, the television fell on the top of the plaintiff’s head and onto her neck and left shoulder (“the television incident”).

16      Immediately after this incident, the plaintiff experienced neck and left shoulder pain and a thumping headache.  She reported her injury, took a couple of Panadol, rested and went home early.

Subsequent treatment

17      Later that day, the plaintiff attended her general practitioner, Dr O’Gorman, who certified her unfit for work.  He referred her for physiotherapy and arranged an ultrasound and x-ray of her left shoulder.  The plaintiff understood the ultrasound of October 2012 revealed a tear to the supraspinatus tendon.

18      Over the next few weeks, the plaintiff continued to experience pain and restricted left shoulder and neck movement.  She was prescribed Mobic and saw Mr Lam, physiotherapist.

19      Subsequently, Dr O’Gorman sent the plaintiff for a cervical CT scan, which took place on 4 December 2012.  Thereafter, Dr O’Gorman advised the plaintiff that she had aggravated degenerative changes in her neck.

20      Dr O’Gorman referred the plaintiff for a further left shoulder ultrasound, which took place in July 2013.  She understood it continued to show the presence of a tear.

21      In July 2013, Dr O’Gorman left the practice and the plaintiff started seeing Dr Baglar at a clinic in Lalor.

22      Due to ongoing left shoulder symptoms, Dr Baglar referred the plaintiff to orthopaedic surgeon, Mr Hunt, whom she first saw on 30 September 2013.  Although he discussed the possibility of surgery, Mr Hunt recommended conservative treatment initially.

23      Dr Baglar referred the plaintiff for a brain CT scan to investigate the cause of her ongoing post-incident headaches.  The plaintiff understood this CT scan of February 2014 showed no abnormality.

24      During early 2014, the plaintiff continued under Mr Hunt’s care.  By that time, she was also experiencing increasing pain and discomfort in her right shoulder, which she thought was caused by overusing that arm.

25      In July 2014, the plaintiff had cortisone injections in both shoulders, following which she had some improvement in her pain for about four months before the symptoms returned.

26      The plaintiff agreed that she had real success with the injections until about December, and she was all right until the warmer weather.  The only thing she could remember was her bra strap used to annoy her as she always had it hanging down.[6]

[6]T15

27      The plaintiff agreed that she told Dr Elder in October 2014 that the cortisone injections into both shoulders had had a fantastic effect for her left side.[7]  At that stage, towards the end of 2014, the plaintiff took Nurofen before her shift, but otherwise no regular medication.  She had continued swimming, but was not doing much walking.  She was having monthly physiotherapy with Mr Tam.

[7]T16

28The plaintiff confirmed physiotherapy treatment had increased from monthly to weekly by the time she swore her January 2015 affidavit.[8]

[8]T46

29      When it was suggested to the plaintiff that being back at work, having minimal treatment and feeling well enough to take a month’s holiday, things were going pretty well with her left shoulder, she could, however, remember having problems with her suitcase on her holiday.  She agreed she was looking forward to continuing working at that time.  She was then working her normal 57.5 hours a fortnight. [9]

[9]T17

30The plaintiff confirmed she had the difficulties described in her January 2015 affidavit.  She did not lift the grandchildren because she knew her neck and shoulder would end up paying the price if she did so.[10]

[10]T41

Work since the incident

31      The plaintiff was off work, initially, for about six weeks after the television incident, and attempted a return to work in November 2012 on modified duties.  She lasted only two or three weeks before she aggravated her injury again, and ceased work later in that month.

32      The plaintiff confirmed, on returning to work, she felt a sudden increase in her left shoulder pain when rolling a very heavy patient.  She stopped work and was off work again for a few months, and felt that that was an aggravation of her 2012 injury, but did not make a claim.

33      In January 2013, the plaintiff returned to work on restricted, modified duties which she continued for several months until she was forced to cease work once more as a result of increasing pain in her neck and left shoulder.

34      Again, on 27 June 2013, the plaintiff had pain across both shoulders from holding a ventilator for a long time.  She had to cease work and, again, she thought it was an aggravation of the television incident injury. 

35      Despite her injuries, the plaintiff worked hard in her rehabilitation in order to return to work.  Although she continued to work her pre-injury hours, she needed to be very careful in undertaking her work duties.  Her co-workers were aware of her injuries and helped ensure that she no longer had to perform the heavier aspects of her work.  She specifically avoided any heavy lifting or activities involving pushing and pulling.  Dr Baglar certified her fit for pre-injury duties in early 2014.

36      The plaintiff was doing most of her pre-injury duties at the start of 2015:  bathing, showering, attending to outings, meal planning, cooking, cleaning and bed making.  She made sure there was always a second person with her when doing the showering and heavy jobs.  It was easier to work with a male to do the lifting.[11]  The defendant made sure there were two people when there was a heavy lift and the plaintiff was guaranteed the support of a backup person.[12] 

[11]T11

[12]T12

37As at the start of 2015, many of the plaintiff’s shifts were with male co-workers and she just avoided any work that was heavy.[13] Her major problem was her left shoulder and she was worried about her work future at that stage.  The pain in her left shoulder made her think how much longer she could keep going on like that and that “something was going to have to give eventually.”[14]

[13]T42

[14]T44

38The plaintiff confirmed she had particular problems with her shoulder in cold weather.[15]  She stopped doing shopping for residents less and less in the winter of 2013.  It was her left shoulder first, and eventually, her neck, that stopped her doing this task.[16]

[15]T44

[16]T25

39      As of 22 January 2015, when the plaintiff swore her first affidavit, she continued to suffer constant, ongoing left shoulder pain which varied in intensity.  It was a constant, dull ache that became much sharper after activity or in colder weather.  She regularly experienced clicking and grinding within the left shoulder joint and felt a sharp grabbing pain whenever she used her arm to reach behind, for example when doing up her bra or reaching into her rear pocket.

40      The plaintiff also experienced stiffness and restricted movement in the left shoulder and found any activity involving reaching overhead was uncomfortable.

41      The plaintiff continued to suffer a stinging type sensation present nearly all the time.  It, too, was aggravated by physical activity and in colder weather.  She also suffered from pins and needles and altered sensation in the tips of her fingers on the right hand and occasionally, but less often, a similar sensation in the fingers on the left.

42      Over the previous six to twelve months, the plaintiff had also noticed the onset of pain in her right shoulder, which had become increasingly sore as she favoured her right arm due to ongoing pain and restrictions in the left shoulder.

43      At that stage, the plaintiff continued to take Nurofen daily.  In the past, she had taken Mobic, but stopped in early 2014 because it was causing nausea and stomach upset.  In addition to Nurofen, she was taking a range of vitamins and supplements to manage her ongoing symptoms.

44      The plaintiff was then seeing Dr Baglar on an as needs basis, and having physiotherapy about weekly.  She had last seen Mr Hunt in June 2014 and had no further plans to see him, although he had indicated she should return if her injury deteriorated because she may still yet require surgical intervention for the left shoulder tear.  The plaintiff confirmed surgery must have been mentioned in a conversation with him somewhere along the line, because for the first time the plaintiff thought “Oh my God, I’m in trouble I might need surgery”.  She would have said something to Mr Hunt like “Can we do everything other than not go there”.[17]

[17]T13

45      As of January 2015, as a consequence of her ongoing pain and restrictions in her left shoulder and neck, the plaintiff continued to have difficulty with any activities that involved pushing, pulling, lifting, reaching or overhead movements.  She still had difficulty with grooming and, in particular, found washing, drying and combing her hair caused left shoulder pain.

46      Prior to the television incident, the plaintiff enjoyed sewing and knitting regularly.  In the year prior to the said date, she had made approximately a dozen new garments for herself using her machine at home.  She also did clothing repairs for family members.  She enjoyed knitting on a regular basis.  However, she also sadly had to cease that activity.  She did not believe she could tolerate the repetitive hand and arm movement required for both knitting and sewing anymore.[18]

[18]T10

47      Prior to the television incident, the plaintiff was also an avid reader.  However, thereafter, she could only read books or magazines for a few minutes before her neck started to become troublesome.  Sitting with her neck flexed forward looking at a page caused her discomfort and pain.

48      Around the home, the plaintiff was restricted in domestic activities and could no longer do the heavier chores such as vacuuming.  She was reliant on others to help with those tasks.  While she could still manage light housework, the plaintiff was very conscious of breaking up those activities into small parts.

49      The plaintiff cooked a lot less than she did before the incident.  Cutting larger vegetables such as pumpkins was difficult.  She also had problems lifting heavier pots and pans and now ordered takeaway or ate out more often than she once did.

50      Due to the plaintiff’s difficulty with activities involving overhead reaching, she used steps at home to help her reach items from higher cupboards.  She struggled to hang out the washing and was now more reliant on her husband’s assistance.

51      As a consequence of her injuries, the plaintiff had difficulty with prolonged driving.  She found that with her arms elevated on the steering wheel for long periods, her left shoulder pain increased.  Similarly, when shopping, she was much more dependent on her husband to help her reach items on the shelves and carry her bags.

52      The plaintiff’s grandchildren were then aged fourteen, two and six months.  As a consequence of her shoulder and neck injury, the plaintiff could no longer play freely with the two younger children and had difficulty lifting them.  This situation was very disheartening for her.

53      The plaintiff then remained concerned about her long-term future.  Her shoulder and neck were prone to flare ups with minimal provocation.  If her symptoms deteriorated in the future, she was worried that she would not be able to continue working as a disability support worker and she remained very anxious about the possibility of undergoing shoulder surgery.

54      The plaintiff swore a further affidavit on 29 August 2017.  She is now sixty-one and is not currently working.  She is presently in receipt of weekly payments.[19]

[19]Those payments relate to the hoist incident of 9 February 2015.

55      Since her earlier affidavit sworn in January 2015, the plaintiff’s left shoulder condition has deteriorated and she has ended up requiring surgery.  She has also continued to struggle with neck problems.

56      On 9 February 2015, the plaintiff injured her right shoulder at work while attempting to lift up a high needs resident with a hoist.  While trying to put the straps for the hoist across the resident’s body, the plaintiff felt the onset of pain in her right shoulder (“the hoist incident”).

57      The plaintiff needed to be careful of her left shoulder when doing this task.  The resident involved weighed 130 kilograms.  He had to be transferred to a bed from a princess chair on which he was sitting.  The plaintiff was assisted in this task by a co-worker.  The plaintiff’s right hand was holding the hoist bar and her left, holding the loop.  When she strained to bring them together, she felt pain across both shoulders and her neck, like a sharp electrical pain.[20] 

[20]T19

58      The plaintiff was in too much pain to continue working.  She attended Dr Baglar but could not remember seeing a physiotherapist at that time.[21]

[21]T19

59The plaintiff confirmed, after the hoist incident, she had pain in both shoulders, but worse on the right.  She then started using her left arm more, causing increased pain.  Five days after the hoist incident, she was complaining of pain on both sides.[22]

[22]T43

60The plaintiff could not recall telling Dr Baglar about a “pulled right pectoral muscle,”[23] but agreed that she mentioned pain in both shoulders when she saw him on 16 February.  The worst pain in the hoist incident was in her right shoulder.[24]

[23]T38

[24]T39

61      The plaintiff was put off work for two days after the right shoulder injury.  She then returned on restricted duties with a 5-kilogram lift, no over-shoulder reaching and no repetitive shoulder or neck work.  These restrictions were not in place before the hoist incident.[25]

[25]T20

62      The plaintiff confirmed she made a claim in relation to the hoist incident and at that time, she thought she had hurt her shoulders again.  She was concerned about the right shoulder.  She was also concerned about the left, but the right was the one she “needed” as she is right hand dominant.[26] 

[26]T21

63      Had the hoist incident not occurred, the plaintiff did not think she would have continued working as her condition had been aggravated by the cold weather since 2012.[27]

[27]T20

64      The plaintiff agreed, in June 2015, her left shoulder was again aggravated and that is when a lot of the problems started.  She agreed she considered this incident in 2015, and incidents in 2012 and with the ventilator in June 2013, as an aggravation of the injury she already had, but she thought she suffered a new injury to her neck and shoulders in the hoist incident and that is why she put in a claim.[28]

[28]T23

Treatment since the hoist incident

65      On 19 February 2015, the plaintiff had an x-ray and ultrasound of her right shoulder, which she understood showed a partial thickness supraspinatus tear, as well as some subacromial bursitis. 

66      At the same time, the plaintiff remained troubled by persisting issues with both her neck and left shoulder, and she was referred by Dr Baglar for a left shoulder ultrasound in February 2015.  She understood this was reported to show tears in the supraspinatus and biceps tendons as well as some bursitis.

67      On 21 July 2015, the plaintiff had an MRI scan of both shoulders, which she understood showed marked tendinopathy in the left shoulder and a tear in the right supraspinatus tendon.

68      After the MRI scans, the plaintiff was referred by Dr Baglar to orthopaedic surgeon, Mr Pullen, whom she saw on 28 August 2015.  He subsequently recommended that she have surgery on both shoulders, with approval being obtained from WorkCover for the left shoulder surgery on 21 December 2015. 

69      On 23 February 2016, the plaintiff underwent left shoulder surgery which she understood involved a subacromial decompression and rotator cuff tear (“the surgery”).  After that surgery, Mr Pullen advised that he had repaired a full thickness tear of the rotator cuff tendon and a moderate sized subacromial spur in the left shoulder.  The plaintiff last saw Mr Pullen in mid 2016.

70      The surgery was paid for under the hoist incident claim.[29]

[29]T14

71      Following the surgery, the plaintiff’s left arm was in a sling for about six weeks and she was off work.  She struggled during that period as she had very limited function in her left arm and shoulder.  It felt stiff and sore and she had to rely heavily on her right shoulder and arm to do most things.

72      In order to try and reduce the plaintiff’s persistent pain, Dr Baglar referred her for a cortisone injection in her left shoulder in June 2017, which provided her with some brief, short-term improvement in her pain levels but nothing long lasting.

73The plaintiff currently attends Dr Baglar about once a month and also self funds physiotherapy with James Malvaso when she needs it.  She generally tries to see him once or twice a month, if she can afford it, but it is difficult, being off work, paying for the treatment since funding was ceased in January 2017.  At present, physiotherapy is for her neck and shoulder, and she has treatment for her knees when she needs it.[30]

[30]T32

74      The plaintiff currently takes both Nurofen and Panadol Osteo tablets every day to try and deal with the pain.  For the most part, she takes painkillers for her left shoulder and neck, although they do help with right shoulder pain when it is flaring up.  Although the amount of medication she takes varies according to her pain level, the plaintiff generally takes up to six tablets of Nurofen and eight Panadol Osteo every day.  While it does help take the edge off some of the pain, it never completely removes it, and she is constantly in some level of discomfort throughout the day.  In addition, she takes Diazepam two or three nights a week to help her sleep.

75The plaintiff can take up to six Nurofen a day for her left shoulder, right shoulder, and neck and knee pain.  Most days she takes it but she does like to have a break.[31]

[31]T32

Work since the hoist incident

76      Having had the two days off initially, due to problems with both shoulders, the plaintiff ceased work again in June 2015 and was off for about three months, before returning to work in September.

77      Following the surgery, the plaintiff had six weeks off work. She eventually noticed some improvement in her left shoulder and was able to attempt to return to work on restricted duties and hours in about late June 2016.  Upon her return to work, she really struggled.  She gradually built up to twenty hours a week but struggled to cope, and ceased work once more on or about 15 August 2016. She has remained off work since.

78The plaintiff ultimately stopped work because of pain and fatigue in her shoulders – her left shoulder.  Had she not had neck pain she would not have been able to work anyway, because her left shoulder gave her quite a lot of grief.[32]

[32]T50

79      In June 2017, the plaintiff attended a meeting with rehabilitation organisation, IPAR, and her general practitioner.  Following that meeting, Dr Baglar began certifying her fit for a return to work on restricted duties, working four hours a day, four days a week.  While she was not really sure whether she will be able to work those hours, the plaintiff is keen to try and get back to some form of work as she dislikes being stuck at home and in pain.[33]

[33]T32

80      In order to try and improve her chances of a return to work, in July 2017, the plaintiff commenced a twelve-week beginner’s computer course at the Lalor Living and Learning Centre.  She attended that course for three hours a day, one day a week.  While she has enjoyed the chance to try and learn something new, her computer skills remain very basic.

81      The plaintiff is upset about her inability to get back to work.  She enjoyed her old job.  The financial hardship that comes with being out of work has also been hard to deal with.

82The plaintiff would like to do receptionist type work.[34]  She likes work that involves interacting with people and has a sense of purpose. She has completed the computer and reception course arranged by IPAR.  However, she still needs to do further computer work as her computer knowledge is only very basic with the twelve-week course.  Operating the computer gave her a headache, but she could cope with her shoulders.[35]

[34]T33

[35]T34

83      Whilst she has experienced some feelings of frustration due to the constant pain and restriction that it has caused her, the plaintiff is trying to remain positive and participate in rehabilitation but the pain can wear her down at times.

84      Despite being off work for a year, the plaintiff’s left shoulder has continued to frustrate her and gives her ongoing problems.  She avoids using it and puts it in her pocket.[36]  She suffers pain, restricted movement and stiffness on a daily basis, although the pain level has decreased a little since the surgery.  Her level of pain fluctuates according to her level of activity.

[36]T50

85      At rest, the plaintiff still experiences a dull background ache but this is largely manageable.[37]  With repetitive use of her left arm or any overhead reaching movements, she typically experiences a much sharper grabbing pain.

[37]T31

86      Since February 2015, the plaintiff’s right shoulder has also caused her some ongoing issues.  She has an aching discomfort most of the time which can be aggravated by overhead movement.  While it remains an ongoing issue for her, the right shoulder pain and symptoms are not as bad as those in the left side.  At present, the pain is neither as constant nor as severe as the pain in her left shoulder.  As such, she has decided not to proceed with right shoulder surgery that Mr Pullen had previously proposed.

87The plaintiff’s right arm feels heavy and dull.  Sometimes there will be a sharp pain or a clunk in the front of her left shoulder blade. The right shoulder has niggles every now and then, but it is much better than the left.  It feels light and the plaintiff “puts it out with confidence” to do things like open the fridge door.  She naturally uses her right hand.[38]

[38]T31

88      The plaintiff’s right shoulder calmed down after the hoist incident when it was the main problem.[39]  She then started to notice her left more.[40]  After the hoist incident, the left shoulder was about the same, and that was ultimately the side that was operated on.  There was some improvement post-surgery, but it still remains worse than the right.[41]

[39]T50

[40]T51

[41]T52

89      The plaintiff also continues to be troubled by pain and discomfort in her neck.  It also frequently feels stiff and sore and she suffers an aching pain in the back thereof that can radiate out towards both shoulders.[42]  Cold weather seems to aggravate her neck pain and discomfort, as does physical activity or movement where she has to twist or tilt her neck repeatedly, such as when reading.

[42]T48

90The plaintiff agreed it was difficult sitting for long periods to read because of back pain.[43]  However, she explained in re-examination that she had not been able to read a book since the television incident because of problems looking forward due to neck pain.  She missed reading a lot.[44]

[43]T36

[44]T46

91      The plaintiff’s social, recreational and domestic activities continue to be restricted, as earlier deposed to, and she remains frustrated by the limitations her television incident injuries placed on her.  Primarily, it is her left shoulder and neck that continue to limit her ability to undertake those tasks.

92The plaintiff occasionally does knitting, and does enough to keep her hands moving.  There was some suggestion of her having carpal tunnel syndrome, but that diagnosis was not confirmed, and her hands just get sore.  However, her hand condition does not stop her from doing anything.[45]

[45]T29

93Most days the plaintiff tries to go swimming.  She does very little breaststroke but when doing freestyle, she does not extend her left arm fully.[46]  She usually does hydrotherapy before she swims.[47]

[46]T35; T50

[47]T51

94The plaintiff agreed her driving was limited because of her back pain.  She is still able to go walking but does not walk as far because her knees hurt and “everything hurts”.[48]

[48]T35

95The plaintiff continues to be restricted playing with her grandchildren.[49]  She and her husband do the shopping together, with the big shop probably once a month.[50]  The plaintiff’s level of cooking depends on how much swimming she has done.[51]  She had problems with shoulder pain just lifting a heavy pot of lasagne the day before the hearing.[52]

[49]T28

[50]T36

[51]T35

[52]T49

Other health issues

96      Many years ago, the plaintiff had had an arthroscopy to her right knee, and recently, she had had some problem with her knees using the stairs at home.  She thought her knees were wearing out and were just sore.  She does not kneel and it is difficult to squat, but they do not affect how far she can walk.  She tries not to use her knees to support herself.[53] 

[53]T24

97      The plaintiff had seen Dr Baglar recently about her knees and was referred to Dr Altuntas, an orthopaedic surgeon, who did an MRI scan of her knee.

98The fish oil the plaintiff takes does help her knees, as do the anti-inflammatories such as Nurofen and also Turmeric.  She does not have any knee pain while sleeping.[54]  Her knees have got a bit worse in the cold weather.[55]

[54]T25

[55]T26

99The plaintiff last had osteopathic treatment about six or eight months ago for leg pain which the osteopath thought was coming from her knees.  The pain was in the shin area and the back of her legs.  The pain was excruciating then, but she no longer has it.[56]

[56]T26

100The plaintiff agreed she had a problem with her back.  She thought it had something to do with the “facets”.  It was just another stabbing pain which is there most of the time, as she described to Mr Miller in April this year.  She confirmed that was how she felt then, but now had back pain only where the facets are, a little higher up than her lower back.[57]  This would affect her ability to sit for long periods and affected her driving, but she would just get out and walk every twenty minutes or so.  Changing the beds is probably the biggest problem with her back.  She does not vacuum because her back is too uncomfortable.  She is not getting specific treatment for her back.[58]

[57]T27

[58]T28

101The plaintiff agreed she had a “dicky” left hip and had pain in her left hip “forever”.  She did not hop, skip, jump, or dance, or “anything like that”.[59]

[59]T29

The Plaintiff’s earnings

Financial Year Ending	Gross Income from Personal Exertion – WorkCover Benefit
June 2009	$27,773
June 2010	$27,744
June 2011	$25,492
June 2012	$26,483
June 2013	$22,809
June 2014	$32,574
June 2015	$34,885
June 2016	$27,861

Treaters

102Dr Baglar most recently reported in July 2017.  The plaintiff has been attending his clinic since July 2013.

103Dr Baglar noted the television incident injury and an injury one day in June 2013 when the plaintiff was on a return to work program having to hold a ventilator for a client, and her earlier difficulties staying at work because of pain.

104In Dr Baglar’s most recent report of July 2017 there was no mention at all of the hoist incident.  He simply noted the investigations undertaken leading up to the surgery in February 2016.

105Dr Baglar noted the surgery reduced the plaintiff’s pain significantly, but failed to improve her capacity to use her left shoulder.  She did not have right shoulder surgery, as that shoulder was not distressing her as much as the left. 

106Since the earliest stages, there were multiple attempts for return to work, all initiated by the plaintiff.  On these multiple times, she failed to handle even modified duties. 

107Dr Baglar confidently stated the plaintiff was unfit for her pre-injury duties and for any employment with similar physical demands.  Although she expressed her willingness to try sedentary duties, like working as a receptionist, the plaintiff did not have the opportunity to try the relevant tasks, and it was therefore impossible for him to make a confident statement about her capacity to handle such work.

108Ty Lam, physiotherapist, reported in April 2013.  The plaintiff was then attending on a monthly basis for treatment and by that stage, she had returned to full duties.

109Ty Lam diagnosed a partial thickness tear of the left supraspinatus tendon on a background of cervical disc degeneration aggravation.  Ty Lam thought the prognosis was then guarded, as the plaintiff continued to experience fluctuations in her condition, currently managed by periodical physiotherapy.

110Ty Lam could not predict the likelihood and nature of further surgery, noting the plaintiff would require ongoing medication and periodical physiotherapy management.

111Ty Lam thought the plaintiff had work capacity having resumed her previous duties, albeit at times, she experienced exacerbations in her neck and left arm pain and periodically took medication to manage her symptoms. 

112Ty Lam noted although the plaintiff was able to manage her activities of daily living, she continued to experience pain, and she had to modify and restrict certain activities to minimize any exacerbation of her condition.

113Mr Pullen, orthopaedic surgeon specialising in upper limb surgery, first saw the plaintiff in August 2015 on referral from Dr Baglar, who advised the plaintiff had bilateral shoulder pain due to her employment.

114In his report of 22 April 2016, Mr Pullen noted the plaintiff suffered injury in the incident on 9 February 2015.[60]  She indicated on one occasion she was using a hoist with a patient at work while on light duties, when she experienced an exacerbation of her bilateral shoulder pain.

[60]Television incident

115The plaintiff advised she had undertaken non-operative treatments, including physical therapy, anti-inflammatory medication, analgesics and subacromial cortisone injection for persistent shoulder pain.

116The plaintiff stated she wished to proceed with right shoulder surgery and a fax was sent to the insurer requesting permission to proceed in that regard.  The following month, a fax was also sent to the insurer requesting permission to proceed with left shoulder surgery.  This request was approved in October 2015.

117The plaintiff underwent a left shoulder arthroscopy, subacromial decompression and rotator cuff repair on 23 February 2016.  At operation, there was evidence in the subacromial space of a moderate sized subacromial spur and a full thickness tear of the rotator cuff. 

118The plaintiff was reviewed on 9 March 2016, when she was progressing well post surgery.  Mr Pullen encouraged her to commence physical therapy and made an appointment to review her in a further eight weeks.  As of April 2016, he had not seen her again.

119Mr Pullen diagnosed a left shoulder full thickness supraspinatus tendon tear and right shoulder supraspinatus tendon tear, and biceps tendinopathy.  He thought it too early to determine the plaintiff’s prognosis given the recent surgery.  He advised that her right shoulder rotator cuff tear was likely to deteriorate without surgery and the prognosis was, therefore, poor.  At that stage, approval for this surgery had not been received from the insurer.

120Mr Pullen thought the plaintiff may be able to return to pre-injury duties in sixteen to twenty-four weeks post-surgery.  When he last saw her, he indicated to her she could gradually return to normal duties under the guidance of a physical therapist.

121Mr Pullen considered the impact of the plaintiff’s bilateral shoulder problems on her social and domestic activities would depend on whether she had a good recovery from the surgery and whether she had right shoulder surgery.  Without the latter, he thought she was likely to have ongoing shoulder pain which would negatively impact on her social and domestic activities.

Investigations – left shoulder

122     An x-ray and ultrasound of the left shoulder was organised by the plaintiff’s general practitioner on 2 October 2012.

123     It was reported the most significant finding was a partial thickness tear involving the mid fibres of the supraspinatus tendon at the articular surface.  There was mild to moderate supraspinatus tendinopathy and mild subacromial subdeltoid bursal fluid.

124     Following a left shoulder ultrasound on 1 July 2013, it was reported there was supraspinatus tendinosis of the small partial thickness articular surface tear.  There was mild bursitis without impingement and no change in the appearance of the tear since October 2012.

125     Following an ultrasound of the left shoulder on 11 September 2013, it was reported there was no evidence of rotator cuff tear or calcification.  The subacromial bursa was mildly thickened, with bursal bunging identified on abduction consistent with subacromial bursitis.

126     Following an ultrasound of the left shoulder on 25 June 2014, it was reported there was a moderate effusion in the subacromial bursa.  Underlying this, there was a partial thickness tear in the supraspinatus on the bursal aspect, measuring 4.3 millimetres’ wide.  The rotator cuff otherwise appeared intact.  The biceps tendon was intact, with a small effusion in the tendon sheath of the long head of biceps.  There was a small effusion noted in the dorsal aspect of the acromioclavicular joint.

127     There was a further left shoulder ultrasound on 24 February 2015.  It was reported impingement was evident on abduction.  An anterior 3 x 4.1-millimetre supraspinatus partial thickness tear was seen at the long biceps tendon and a further posterior 3.6 x 2.7-millimetre posterior partial thickness tear 11 millimetres from the long biceps tendon.  There was subscapularis bursitis at the base with adjacent fluid.  There was long bicep tenosynovitis with fascial plane thickening.  No glenohumeral joint effusion was seen, and bony irregularities were seen on the humeral head and on the acromioclavicular joint.

128     There was a MRI scan of the left shoulder on 21 July 2015.  It was reported there was marked tendinopathy of the anterior to mid supraspinatus fibres of the tendon. There was evidence of tendinopathy of the biceps and infraspinatus.  There was no rotator cuff tendon tear. 

129     The most recent ultrasound of the left shoulder was conducted on 5 June 2017.

130     It was reported that at the anterior supraspinatus insertion at approximately 5 millimetres posterior to the long head of the biceps tendon, there was a linear echogenic structure measuring 8 millimetres in size, centrally located, with surrounding hypoechoic tissue.  In view of the history of previous surgery, it was noted that may represent a suture.  The hypoechoic area adjacent would be consistent with an area of tendinopathy.  No tear was seen.  No other significant abnormality of the rotator cuff was identified.

131     There was a little fluid in the subdeltoid bursa with no evidence of impingement.  There was minimal fluid in the long head of the biceps tendon sheath within normal limits, and no joint effusion was seen.  It was reported there was severe AC joint synovitis with degenerative changes.

132     There was significant tendinopathy at the supraspinatus tendon with high-grade predominantly partial-thickness articular surface tear of the mid to posterior fibres which likely demonstrates full-thickness extension involving the mid fibres.  There was mild subacromial-subdeltoid bursitis.  There was high-grade tendinopathy of the deep fibres of the subscapularis with a probable small partial-thickness tear involving the lateral insertion.  There was significant tendinopathy of the intra-articular biceps tendon with heterogeneous SLAP tear involving the superior labrum, extending anteroinferiorly and into the biceps labral anchor.

Right shoulder

133     Dr Baglar organised a right shoulder ultrasound on 25 June 2014.

134     It was reported there was a minimal effusion in the tendon sheath of the long head of biceps and also in the subacromial bursa (1.4 millimetres) consistent with subacromial bursitis.  The underlying supraspinatus appeared thickened and of slightly irregular echo texture consistent with tendinopathy, but no tear was evident. There was a small effusion in the dorsal aspect of the acromioclavicular joint and a minimal step, but no joint space widening evident, possibly indicating some minor past ligament injury.

135     There was no bone or joint pathology, or injury evident, or soft tissue calcification demonstrated on a right shoulder x-ray of February 2015.

136     There was a right shoulder ultrasound on 19 February 2015.  It was reported that there was a small effusion in the subacromial bursa consistent with subacromial bursitis.  Underlying this, there was a partial thickness tear 12 millimetres’ wide in the supraspinatus on its articular aspect and extending almost to its anterior margin at the bicipital groove.  The rotator cuff otherwise appeared intact.

137     Following an MRI scan of the right shoulder in July 2015, it was reported that there was severe AC joint synovitis with degenerative changes.  There was significant tendinopathy of the supraspinatus tendon, with high grade predominantly partial thickness articular surface tear of the mid to posterior fibres.  High grade tendinopathy of scapularis and biceps was noted.

138     There was a right shoulder ultrasound organised by Dr Baglar in June 2017.  It was reported that there is a moderate sized tear of the anterior supraspinatus insertion measuring 13 millimetres in size involving the articular and intrasubstance fibres within a thin layer of bursal fibres intact.  There was a little associated fluid in the subdeltoid bursa, suggesting mild associated bursitis.  There was no definite impingement and no other abnormality seen. 

Cervical spine

139     There was a CT scan of the cervical spine in December 2012.

140     It was reported at C4-5, there was a small posterior disc protrusion.  There was disc height reduction at C5-6.  At C6-7, there was an annular disc bulge.

141     There was an MRI scan of the cervical spine in October 2013.  At C3-4, there was very low grade disc bulge with no neural compromise.  At C4-5, there was posterior central focal disc protrusion compressing the thecal sac without cord compression and no foraminal root compression.  At C5-6, there was low grade broad based posterior disc bulge which was once again causing mild thecal sac compression, but not cord compression, and there was no foraminal stenosis.  At C6-7, there was low grade broad based disc bulge with mild thecal sac compression but no cord compression.  There was no foraminal root compression.

The Plaintiff’s medico-legal evidence

142     Mr Russell Miller, orthopaedic surgeon, first saw the plaintiff in August 2015 in relation to the television incident injury.

143     Under history, Mr Miller also noted, the hoist incident, and a further event in June 2015 when the plaintiff developed increasing problems with neck and shoulder pain when undertaking restricted duties at work.

144     On examination, the plaintiff complained of neck pain and discomfort radiating into her shoulders and occasionally, further down the arms, particularly the left.  She had occasional pain in the head but no actual headaches.  Neck pain was the dominant feature, with fluctuating symptoms. 

145     The plaintiff had pain and discomfort in the left shoulder, worse with repetitive and overhead activities.  She developed similar, but less severe, symptoms in the right shoulder, and felt that was, in part, an overuse phenomenon.  She described aches, discomfort and ligament pain in both knees, and some difficulty with kneeling and squatting.

146     Mr Miller diagnosed a musculoligamentous strain to the cervical spine and aggravation of degenerative disease.  He thought its relationship to work was clearly a complex issue.  It was likely there was pre-existing but asymptomatic disease, noting the plaintiff did have some neck problems in the distant past.  He believed the cervical spine disease had been rendered symptomatic and further superimposed injury by the television incident.  This was further aggravated by the hoist incident and those two events accounted significantly for the plaintiff’s current clinical status.

147     Mr Miller thought the plaintiff had evidence of rotator cuff dysfunction of the left shoulder and probable impingement.  She had significant symptoms.  Mr Miller considered she may require surgery for this and that the prognosis was only fair.  He thought it likely the plaintiff had pre-existing but asymptomatic disease in the left shoulder.  It was likely the evolution of that disease had been significantly influenced by physical work over a protracted time and specifically by the television incident injury which he considered the dominant factor in the plaintiff’s presentation.

148     Mr Miller noted the plaintiff had subsequently developed right shoulder problems, with evidence of rotator cuff dysfunction, probably Impingement syndrome, and probably symptomatic disease in the acromioclavicular joint.

149     Mr Miller thought it unlikely the plaintiff had pre-existing disease in the right shoulder and that the evolution thereof had been influenced by the development of left shoulder problems which had caused her to place greater reliance on the right.

150     Mr Miller noted the plaintiff had problems with both knees and had clinical features suggestive of early degenerative disease involving the patellofemoral joint.  He thought the prognosis for that was good and it was unlikely they were work related.

151     Mr Miller considered the plaintiff may well come to surgical intervention for both shoulders and that she was at increased risk of developing arthritic disease.  She would require ongoing conservative treatment for her knees and may require arthroscopy debridement.

152     Mr Miller considered the issue of work capacity was clearly a complex one in this case.  He believed the plaintiff would have difficulty with work involving repetitive arm actions, use of the arms in the above shoulder position, and lifting of weights of more than 5 kilograms.  He therefore did not think she would be fit to return to pre-injury duties on any significant full or part-time basis, and her return to work would be problematic due to the combined effects of neck and left and right shoulder problems. 

153     Mr Miller also thought the plaintiff would have a reduced capacity for heavy domestic and gardening activities as a result of orthopaedic problems, and also some reduction in her capacity for physical pre-injury leisure and recreational activities.

154     The plaintiff was re-examined by Mr Miller on 1 July 2016.  Her neck was then a major problem for her.  She reported ongoing left shoulder symptoms, noting some improvement after the surgery, but was still bothered by ache, discomfort, and intermittent pain.  She continued to have fluctuating problems with her right shoulder which were worse than when last seen.  She had some minor ache and discomfort in the knees.

155     Mr Miller noted the plaintiff’s neck symptoms had deteriorated to some extent since last seen, and he remained of the view the prognosis was only fair.  He repeated his views as to the work contribution to the various injuries.

156     Mr Miller thought the plaintiff had a reasonable response to the surgery with symptom improvement, but she did have ongoing symptoms consistent with rotator cuff dysfunction and capsulitis.  There had been ongoing symptoms in the right shoulder with some deterioration since last seen.

157     Mr Miller then thought the plaintiff may come to surgery of the right shoulder.

158     In terms of work capacity, Mr Miller noted the plaintiff had ongoing problems, particularly with the neck and shoulders.  She would have difficulty with work that involved repetitive arm actions, use of the arms in the above shoulder positions, or lifting of weights greater than 5 kilograms.  He noted she had not been able to successfully return to work as a disability support worker undertaking normal duties and she was now, really, only suitable for office-based duties.

159     Mr Miller last saw the plaintiff in April 2017.

160     The plaintiff’s neck was still a major problem.  She had some ache and discomfort in both shoulders.  She had also developed some ache, discomfort, and intermittent pain in the lower back, and both knees.

161     Mr Miller’s views as to diagnosis and prognosis remained unchanged.

162     In terms of the left shoulder, Mr Miller thought it likely that the evolution of disease had been significantly influenced by the plaintiff’s physical work over a protracted time and also specifically by the television incident, which he thought was the dominant factor in her presentation. 

163     In relation to the left shoulder alone, Mr Miller thought the plaintiff would have difficulty with work involving repetitive left arm action, use of the left arm in the above the shoulder position, and lifting of weights of more than 5 kilograms.  These restrictions were permanent. 

164     In relation to the right shoulder alone, Mr Miller believed the plaintiff would have difficulty with work involving repetitive right arm activity, use of that arm in the above shoulder position, and lifting weights of more than 5 kilograms. He therefore did not believe she could return to her pre-injury duties full time.  If she was to return to her previous occupation in relation to the right shoulder alone, she could work a maximum of two hours, five days a week.

165     In relation to the neck, Mr Miller thought the plaintiff would have difficulty returning to significant physical work.  She would not be fit to do pre-injury duties and would specifically have difficulty with work involving overhead activities, such as holding her neck in a sustained posture and with steps and ladders.  Due to her neck injury alone, she could not return to her previous duties on any significant full or part-time basis.

166     Dr Slesenger, occupational physician, re-examined the plaintiff on behalf of Xchanging on 5 April 2017 in relation to the hoist incident statutory benefits claim.[61]

[61]having earlier seen her in 2015

167     Dr Slesenger had the history of the television incident injury, and the hoist incident when the plaintiff developed severe bilateral shoulder pain.

168     Dr Slesenger noted the plaintiff ceased work in June 2015 due to a combination of pain, restricted movements and fatigue.  When seen in 2015, she had ongoing pain in the neck and both shoulders, the left the worse, at a level of 5 out of 10.  She had restricted left shoulder movement.  The right shoulder pain was less intense at 4 out of 10, and she tended to avoid lying on her right side.

169     In 2015, Dr Slesenger recommended the plaintiff could return to work four hours a day, four days a week, no push, pull, carry or lift over 5 kilograms, and no over shoulder reaching.

170     On re-examination in 2017, the plaintiff advised that she had had limited improvement in her symptoms since the earlier examination. She had ongoing right shoulder pain, but now only with activity.  She had an increased range of movement.

171     Left shoulder symptoms had deteriorated since the last evaluation and the plaintiff underwent surgery in February 2016.  That was successful in relieving her symptoms and she had some residual mild shoulder pain that was constant, with some restriction to her range of shoulder movements.  Her left shoulder was generally worse than her right, though had improved significantly since her last examination.

172     The plaintiff had ongoing mild to moderate pain in the cervical spine that was more constant and severe.

173     Dr Slesenger noted the plaintiff had worked intermittently until February 2016.  She was then off for three months after the surgery and then went back on light duties.  However, she was unable to maintain her attendance and return to her pre-injury hours and ceased work in August 2016 due to a combination of pain and fatigue.

174     Dr Slesenger noted the plaintiff presented two years after the onset of bilateral shoulder and neck pain as a result of injuries sustained during the course of her employment. Imaging findings revealed evidence of tendinopathy in the supraspinatus and longheaded biceps, as well as bursitis.  Cervical spine x‑rays showed evidence of degenerative disease.

175     Dr Slesenger was satisfied that the occupational exposures were a plausible cause of the plaintiff’s impairment, both to her cervical spine and both shoulders.

176     Dr Slesenger then thought the plaintiff could not return to pre-injury duties, but had a capacity to return to work performing alternative suitable duties with restriction, namely, no over shoulder reaching, no push, pull, carry, lift over 5 kilograms, working four hours, four days a week, and no repetitive shoulder or neck work.  He thought that she could fulfil the roles of receptionist, general clerk, and filing and registry clerk, with these restrictions.

177     Dr Slesenger was satisfied the plaintiff’s current impairment was materially contributed to by the injury under consideration, namely the hoist incident

Defendant’s medical evidence

178     Dr Baglar set out the following in his handwritten notes:

·        11 February 2015 - “pulled right pectoral muscle at work” 

·        16 February 2015 - “she grabbed a sling ... client to the body of 130 kg – right shoulder   

·        20 February 2015 - right shoulder

·        25 February 2015 - left shoulder

·        10 March 2015 - fit for modified duties 10 March  

·        29 April 2015 - right shoulder pain.

179     Dr Baglar wrote to the defendant on 12 December 2013 notifying of the plaintiff’s change of residence.  He noted that she felt confident that she could attempt her pre-injury hours and tasks in an unrestricted fashion, but would require treatment to continue as needed and this should not be taken as meaning that she is fully cleared.

180     Mr Pullen wrote to the plaintiff’s general practitioner on 28 August 2015 thanking him for referring the plaintiff, who presented with bilateral shoulder pain.

181     Mr Pullen noted the television incident after which the plaintiff initially just had left shoulder and neck pain, and that she developed right shoulder pain after a slightly delayed fashion.  She now had ongoing pain.  Also, on one occasion, the plaintiff was using a hoist with a patient and had an exacerbation of her pain.

182     On examination, the plaintiff had restriction in both active and passive motion of both shoulders, with bilateral positive impingement signs and weakness of supraspinatus.

183     Mr Pullen noted the right shoulder MRI showed a full-thickness tear of the rotator cuff and SLAP lesion, with the left shoulder MRI showing tendinopathy and biceps tearing.

184     Mr Pullen agreed with Dr Baglar that the plaintiff was suffering bilateral rotator cuff and biceps problems.  He had discussed further non-operative treatment with the plaintiff.  He had also discussed a shoulder arthroscopy, subacromial decompression, biceps tendinosis, and rotator cuff repair, and noted the plaintiff had gone away to consider her options.

185     Dr Baglar certified on 28 July and 14 August 2017, that because of a bilateral shoulder condition, the following work restrictions should apply:  no repetitive shoulder movements, no above shoulder activities, no lifting more than 5 kilograms, four hours a day, two days a week. 

The Defendant’s medico-legal evidence

186     The plaintiff was examined by occupational physician, Dr David Elder, on 13 October 2014 in relation to the television incident injury. 

187     On examination, the plaintiff described continuing symptoms of a general ache in the back of her neck.  She had left shoulder discomfort and discomfort over both clavicles.

188     The plaintiff had just been on a one-month holiday in North America.  Prior to that, she had had cortisone injections into both shoulders, which she described as fantastic and wonderful for the left side. 

189     The plaintiff advised she had difficulty cleaning and vacuuming, and no longer cooked every day.  That led to eating out perhaps two or three times per week, and she described specific difficulty with cutting up pumpkin and ironing for longer than half an hour.

190     Dr Elder concluded the plaintiff had mechanical neck pain with no clinical evidence of radiculopathy, and left shoulder dysfunction relevant to the original accepted injury.

191     Dr Slesenger first examined the plaintiff on 14 August 2015 in relation to the hoist incident. [62]

[62]Dr Slesenger’s 2017 report was relied on by the plaintiff

192     The plaintiff then advised of the incident injury and a return to work in early 2013 on modified duties until early 2014, when she was transferred back to her original residential facility, returning to full hours and normal duties. 

193     The plaintiff told Dr Slesenger of the hoist incident in early 2015, when she suddenly suffered sudden and severe bilateral shoulder pain. The pain deteriorated, and she saw her doctor, who certified her off work for two days before she returned to work on reinstated restricted duties with a 5-kilogram limit, no over shoulder reaching and no repetitive shoulder or neck movements. 

194     The plaintiff remained at work for three to four months during which she advised that she was restricted to performing feeding duties, light cooking and light domestic tasks.  The pain did not improve despite physiotherapy and analgesia.  She was off work for two weeks before returning to work performing light duties.  She worked for two weeks and then ceased in June 2015 due to a combination of pain, restricted movements and fatigue.

195     Dr Slesenger noted the plaintiff presented three years after the onset of neck and bilateral shoulder symptoms which developed as a result of the television incident. She advised she had ongoing symptoms since. Her symptoms deteriorated in January 2015 with the hoist incident, and she had had ongoing neck and shoulder pain since.

196     Dr Slesenger thought the television incident would have been the cause of the original impairment and that the plaintiff has subsequently developed a Chronic Pain Disorder of her neck and both shoulders.  She also had left rotator cuff tendonitis and bursitis.  He then thought she had a capacity for modified duties.

197     Dr Slesenger provided a supplementary report in September 2015, following receipt of the July 2015 right shoulder MRI and Mr Pullen’s August 2015 report.

198     Dr Slesenger was asked his views, in consideration of the diagnosis of a Chronic Pain Disorder, as to the anticipated outcome of the request for surgery.

199     Dr Slesenger advised he was cautious with regard to causation as he had difficulty identifying a causal link between the television incident, the hoist incident, and the plaintiff’s current presentation. 

200     Dr Slesenger was cautious with regard to the quantification of the plaintiff’s current impairment and disability as there was some evidence to indicate there was functional overlay.  He was also mindful the plaintiff had not been reviewed by a pain specialist.  Overall, he would counsel a careful approach to surgery as it was unlikely to be beneficial in the presence of either functional overlay or a Chronic Pain Disorder.

201     Dr Slesenger was also asked whether the request for surgery was appropriate for the compensable injury to the right shoulder.  He thought that was a difficult question to answer, as he was cautious with regard to the mechanism of the injury described.  While there may have been shoulder symptoms, he thought it was unlikely they were related to the diagnoses identified in 2012.  He noted the plaintiff had been performing modified duties since that time and he thought that it was unlikely to be occupational exposure that was a plausible cause of the current findings. 

202 Dr Slesenger considered a more likely scenario is that the right shoulder pain is referred from the cervical spine impairment, and the shoulder impairment is unrelated to the incident under consideration,[63] and is constitutional rather than injury related. Therefore, he thought the request for surgery was not appropriate for the compensable injury to the right shoulder, that is, referred cervical spinal pain.

[63]The hoist incident

203     Dr Slesenger thought the hoist injury was an unlikely cause of the plaintiff’s current shoulder impairment, and noted she had pre-existing right shoulder symptoms and was working in restricted duties.

204     In his supplementary report of November 2015, Dr Slesenger was asked to comment on the proposed right shoulder surgery, having been provided with a range of investigations.  While commenting that it was not within his expertise, Dr Slesenger noted the cause of the plaintiff’s symptoms may not be physical and he was, therefore, of the opinion surgery may not be the most appropriate way to treat the plaintiff.  He recommended a pain management program in the first instance.

205     Mr Clive Jones, orthopaedic surgeon, first saw the plaintiff in December 2015 in relation to the hoist incident injury.

206     Mr Jones had a history of the television incident, following which the plaintiff had a short period of time off work, but the soreness around the neck and shoulder area slowly subsided.  The hoist incident - a neck straining incident - then took place.  Thereafter, there were increased pain levels around the neck and shoulder area.  He understood the current claim embraced a neck injury and an injury to both shoulders, noting the hoist incident as the relevant accident.

207     Although there were reports of soreness around the neck and right shoulder, Mr Jones thought the plaintiff’s principal disability on examination seemed to relate to the left.

208     On examination, there was a full range of cervical movement and no neurological abnormality.  Mr Jones thought that there were clinical signs and radiological appearances confirming significant left shoulder tendinopathy. 

209     Mr Jones noted the hoist injury appeared to have aggravated the plaintiff’s left shoulder condition in particular.  He thought the hoist injury was still materially contributing to the plaintiff’s condition.

210     Mr Jones considered left shoulder surgery was a reasonable procedure.

211     Mr Jones re-examined the plaintiff in April 2016.

212     The plaintiff then advised she was happy with the result of the left shoulder surgery.  The left shoulder was a little stiff, but the pain had improved greatly.  The surgery had markedly improved her left shoulder pain, but she had been left with some shoulder weakness and stiffness.  Mr Jones believed her current condition was materially contributed by the hoist incident.

213     Mr Jones subsequently commented on the Work Streams return to work plan.  Despite a rather stiff and weak shoulder, Mr Jones believed the plaintiff would be capable of undertaking work of the nature suggested, providing suitable assistance was provided.  He would suggest a part time re-entry around twenty hours a week as tolerated. 

214     There was a further re-examination in July 2016 in relation to the hoist incident, for the purposes of an AMA assessment.

215     The plaintiff advised Mr Jones that since last seen, the pain in her right shoulder had become an increasing problem, and it was particularly painful in the colder weather, and she had had two steroid injections.

216     Mr Jones noted residual symptoms of the left shoulder surgery and, in the meantime, the right shoulder emerging as a significant problem.  He thought there appeared to be material contribution by the hoist incident.  He noted the plaintiff’s work with the defendant was undoubtedly heavy, dealing with clients on respirators with severe disabilities. 

217     The plaintiff was unable to undertake full pre-injury hours and duties at that time.  She was still attending the Centre but doing very little, with pulling, pushing and bending all restricted due to her shoulder symptoms.

218     Mr Jones thought a suggested work plan did not appear to be particularly suitable and that, in reality, the plaintiff, unfortunately, had very little to offer in the way of useful service.  He suspected she would not return to full hours, modified alternative duties, or full pre-injury hours and duties.  With two painful shoulders and a painful neck, she had a significantly reduced work capacity and did not appear to have a work capacity currently.  This was materially contributed to by the hoist incident.  He thought psychosocial factors did not appear to be significant in the situation.

219     Mr Jones considered there had been very slow improvement in functional capacity and believed the plaintiff would not regain normal work capacity.

Overview

220     There is no dispute the plaintiff injured her left shoulder and neck in the television incident.  There is no suggestion of any pre-exiting condition of either body function nor is there any suggestion these impairments lack a substantial organic basis.

Credit

221     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[64]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[64](2010) 31 VR 1 at paragraph [12]

222     As I indicated to the parties, I found the plaintiff to be a truthful witness who made no attempt to reconstruct her evidence to focus on the consequences of her compensable injury and play down the hoist incident injury or other health problems.[65]

[65]T59, T60

223     In light of these comments, whilst there was a reluctance to criticise the plaintiff, counsel for the defendant pointed out there were significant inconsistencies between her affidavit evidence and cross-examination.[66]

[66]T59

224     It was submitted, save for a small mention in her first affidavit, the plaintiff’s affidavits were silent as to other medical conditions.  Further, there was some confusion about the extent of ongoing physiotherapy.[67]

[67]T60

225     These brief submissions, however, did not cause me to change my preliminary view of the plaintiff’s credibility in any way.

226     Further, as Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (No 2),[68] he suspected:

“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

[68](Supra) at paragraph [4]

227     I accept that plaintiff is somewhat of a stoic.  She is a motivated, hardworking woman who continued work on and off with restrictions until ceasing work in August last year after years of ongoing shoulder pain.

228Counsel for the defendant submitted the application in relation to the left shoulder should fail on a number of grounds.

229     Firstly, it was submitted the chain of causation had been broken by the hoist incident which involved injury to the same body part – the left shoulder - thus raising issues of disentanglement.  If the chain was not broken, it was submitted the consequences of the left shoulder impairment are moderate and there is a requirement to disentangle the present consequences of non-compensable conditions as the Court directed in Peak Engineering.[69]

[69]T55; Peak Engineering & Anor v McKenzie [2014] VSCA 67

230     Counsel for the defendant submitted the plaintiff had recovered from the television incident injury which was a discrete injury – not a course of employment scenario – when she suffered further injury in the hoist incident which is now responsible for her ongoing complaints.[70]

[70]T55

231     It was submitted as of February 2015, the plaintiff was back to just about full-time duties, and having minimal treatment.  Her condition was stabilised, as Dr Elder described following examination in October 2014.[71]

[71]T56

232     Further, earlier in January 2014, Dr Baglar reported the plaintiff did not sustain any major injury in the television incident and she was back to her previous level of functioning.  That month, Mr Hunt advised the overall prognosis was good and that there was no major pathology.[72]

[72]T56

233     Counsel for the defendant submitted in the hoist incident, the plaintiff suffered sudden and severe bilateral shoulder pain, as noted by Dr Slesenger.  She put in a worker’s compensation claim for injury to her neck and shoulders. She thought this was a new injury whereas other incidents after the television incident injury were claimed under that original claim.  The hoist incident claim was accepted as a new injury and payments continue to be paid under that claim.[73]

[73]T56

234     It was submitted any left shoulder impairment was not serious because the plaintiff had maintained fitness for part-time work and there is not any great loss to her in not being able to work as a personal carer.[74]

[74]T61

235     Mr Jones considered that the left shoulder injury from the hoist incident continued to contribute to the plaintiff’s condition when he examined her in December 2015 and April and July 2016, and he made no reference to the role of the television incident, if any, in her current condition.[75]

[75]Examination in relation to the hoist injury

236     It was submitted Mr Miller’s view that the television incident is the dominant cause of the plaintiff’s left shoulder and neck pain is inconsistent with her evidence of suffering severe and sharp pain in the hoist incident.[76]

[76]T57

237     Dr Baglar did not express a view as to the contribution of the hoist incident to the plaintiff’s present condition.[77]  His certificates are in relation to the television incident and he does not even refer to the hoist incident at all.[78]

[77]T57

[78]T58

238     Counsel for the defendant also submitted an adverse inference should be drawn in the absence of a report from treating physiotherapist James Malvaso who saw the plaintiff both before and after the hoist incident.[79]

[79]T58

239     In my view, the “chain” was not broken with the hoist incident.  Further, I am satisfied that the plaintiff had a serious injury before that time and that situation continues as a result of the left shoulder injury suffered in the television incident alone.

240      I do not accept the plaintiff had recovered before the hoist incident and that it was a novus interveniens in relation to which any ongoing shoulder problems can now be attributed.

241     As counsel for the plaintiff stressed, the plaintiff was at a great advantage in this case, having sworn an affidavit detailing the ongoing consequences of her left shoulder condition relating to the television incident just two weeks before the hoist incident.[80] 

[80]T62

242     Whilst it may be said she was working almost normally until the hoist incident, the plaintiff made it clear she was struggling through every winter.  I accept that she is a stoic, whose work was somewhat modified to deal with her shoulder problem.[81]

[81]T68

243     There was contemporaneous material, with the letter from Dr Baglar on 12 December 2013 when he wrote to the defendant canvassing a number of difficulties the plaintiff was then having.  Notwithstanding the initial confidence that she would be able to manage pre-injury hours and tasks in an unrestricted fashion, that was not the pattern, and the plaintiff had numerous cases where she needed to go off work and have significant time off, because of left shoulder pain attributable to the television incident.[82]

[82]T68

244     I accept, as counsel for the plaintiff submitted, the fact that the plaintiff had got back to almost normal duties was very much coloured by the fact that she had significant benefit from the cortisone injection in June 2014.  She had really struggled in the first winter after 2012, and had to cease doing the shopping for aged residents, have her job modified, move to a different venue where there were fewer residents, and was given a male assistant to do the heavy lifting.[83]

[83]T70

245     As at January 2015, the plaintiff suffered from constant left shoulder pain like a dull ache that became much sharper with activity or cold weather.  Her shoulder was stiff and her movement was restricted.  She had noted right shoulder pain six months earlier as she favoured her right arm due to her ongoing left arm problems.

246     The plaintiff had difficulty with housework and cooking and her enjoyment of handiwork and reading was affected by both her neck and shoulder complaints. Prolonged driving and playing with her grandchildren were also a problem.

247     Treatment was minimal prior to the hoist incident, as counsel for the defendant submitted.  The plaintiff had undergone physiotherapy, required painkillers and had had cortisone injections in both shoulders.

248     Whilst Dr Baglar and Mr Hunt considered there was not a major problem with the plaintiff’s shoulders, they made this comment in January 2014, with the plaintiff in fact undergoing cortisone injections six months later.[84]

[84]T71

249     Although left shoulder surgery did not take place until February 2016, it had been discussed Mr Hunt before the hoist incident.[85]  As the plaintiff said, she thought she was “in real trouble” when she had a conversation about possible surgery with Mr Hunt.  Confirming the plaintiff’s evidence in this regard was her January 2015 affidavit where she deposed that she remained very worried about her work future and that she remained very anxious about the possibility of undergoing shoulder surgery.

[85]T63

250     By January 2015, the plaintiff had increased to weekly physiotherapy, from monthly in October 2014, some four months after the June epidural which had started to wear off.[86] 

[86]T70

251     A partial thickness tear was noted immediately in the wake of the television incident on ultrasound on 2 October 2012 and again in July 2013 and June 2014. In the operation, Mr Pullen found a full-thickness tear of the supraspinatus.[87]  Whilst all radiology did not show up tears, all showed fluid and a thickening of the bursa consistent with bursitis.[88]

[87]T64

[88]T65

252     The plaintiff also had right shoulder problems before the hoist incident.  This was investigated by ultrasound in June 2014 and she underwent a cortisone injection the following month.  I accept the right shoulder problem resulted from overuse of this limb as she was protecting her left shoulder as Mr Miller confirmed.  This problem can be taken into account when considering the consequences of the left shoulder impairment.[89]

[89]T75

253     As counsel for the plaintiff submitted, the current application relates predominantly to the left shoulder, and that has remained throughout a real problem, apart from a flare-up immediately in the wake of the hoist incident where the right shoulder was briefly the plaintiff’s worst problem, causing her to again effectively re-injure her left shoulder or aggravate it, and complain of an aggravation a week thereafter.[90]

[90]T63

254     I accept that had the hoist incident not occurred, the plaintiff would have continued to have difficulties with both shoulders, particularly the left, as the July 2014 cortisone injections wore off and she would have further struggled, particularly the following winter.[91]

[91]T70

255     I accept this would be also have been the case with the range of other problems  deposed to in January 2015 as there was no sign of improvement in early 2015 before the hoist incident.

256     In my view, the hoist incident did not significantly alter the plaintiff’s left shoulder condition.  She required only two days off work.  The first time she saw Dr Baglar after the hoist incident, there was no complaint about the left shoulder.[92]  The plaintiff took care of her left shoulder when involved in any lifting activities such as using the hoist.[93]  The left shoulder complaint came five days after, when she had been using it more because of the pain at that time in her right shoulder. Left shoulder problems at that time were due to overuse rather than a further injury to the left shoulder.[94]

[92]T69

[93]T70

[94]T69

257     Counsel for the plaintiff conceded there was only one line in his report where Mr Miller descended to some sort of analysis of the role of the television incident and the hoist incident in the 2016 surgery in her current presentation.  However, Mr Miller certainly found the television incident was the predominant cause of the left shoulder problem.[95]

[95]T66

258     Mr Jones was asked to see the plaintiff in relation to the hoist incident injury and whilst being aware of the television incident injury did not undertake any real analysis of the roles of these incidents in the plaintiff’s current presentation. He simply stated that there does appear to be a material contribution by the hoist incident injury.

259     Dr Slesenger did however, consider the television incident would have been the cause of the original impairment and thought the hoist incident was an unlikely cause of the plaintiff’s current shoulder impairment, noting she had pre-existing right shoulder symptoms and was working in restricted duties at the time thereof.

260     Whilst I am required to consider the seriousness of any impairment as at the date of hearing, looking at her situation as of January 2015 when the plaintiff swore her first affidavit, the consequences deposed to would meet the test of seriousness – pain and restricted left shoulder movement, an overuse condition of the right shoulder, ongoing treatment in terms of medication, physiotherapy, injections and the possibility of surgery, and interference with a range of social and domestic activities.

261     In my view, the hoist incident did not significantly change this situation and the plaintiff’s problems related to the television incident continue today.  As counsel for the plaintiff agreed, the complaints deposed to in the second affidavit are effectively said to be the same as those in January 2015.

262     Although not the plaintiff’s dominant shoulder, there have been ongoing problems with domestic tasks and activities such as lifting the grandchildren, and these and other problems listed in the January 2015 affidavit, in my view, were likely to have continued whether or not the hoist incident occurred.[96]

[96]T73

263     I consider the hoist incident in similar terms to the other aggravations during 2012, in 2013, when the plaintiff was holding the ventilator and a further incident in June 2015 as part of the ongoing left shoulder problem dating from the television incident injury following which a supraspinatus tear was identified.

264     In those circumstances, I am satisfied that any disentanglement that is required relating to the hoist incident injury as the Court directed in Peak Engineering & Anor v McKenzie,[97] has been successfully undertaken and I consider the consequences referable to the compensable injury alone are serious.

[97][2014] VSCA 67

265     The fact the plaintiff put in a new claim relating to the hoist incident and did not claim under the original television incident claim is of no particular relevance to my determination, as the plaintiff lacks the expertise to make any attribution of her injury to any particular circumstances.  Similarly, payment for the surgery pursuant to the hoist claim does not advance the issue further.

Pain

266     In Haden Engineering Pty Ltd v McKinnon,[98] Maxwell P said that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, the following:

“(a)what the plaintiff says about the pain (both in court and to doctors);

(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);

[98](Supra) at paragraphs [8] – [12]

267     In her most recent affidavit and also in her viva voce evidence, the plaintiff described her left shoulder as being her main problem, it having remained a constant discomfort since the incident.  This pain is a dull background ache which was largely manageable.  However, the pain fluctuates with activity and is worse with repetitive and overhead movements, when there is a much sharper grabbing pain.[99]

[99]T60

268     The plaintiff’s predominant problem has been her left shoulder, and that was subsequently operated on in February 2016, a year after the hoist incident.

269     As counsel for the plaintiff submitted, notwithstanding the surgery, the plaintiff has never returned to a full use of her left shoulder.  She swims in a modified way, and simply avoids using her left arm, keeping it in her pocket.[100]

[100]T72

270     As recently as June 2017, Dr Baglar referred the plaintiff for a cortisone injection in her left shoulder but it did not provide anything but short-term improvement.  The plaintiff continues to take Nurofen and Panadol Osteo every day.  She takes them for her left shoulder and neck, although they help with the right shoulder pain.[101]  The plaintiff also takes Diazepam to take the edge off her pain and help her sleep at night. 

[101]T72

271     The requirement to take painkilling medication, sleeping medication and natural remedies are relevant pain and suffering consequences.[102]

[102]T73

272     As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[103]

“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”

[103](2007) 17 VR 592 at paragraph [199]

273     The plaintiff has undergone physiotherapy at various times and continues to have treatment for her shoulders, neck and, at times, her knee.

274     The plaintiff has difficulty sleeping due to her shoulder pain.

275     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[104]

“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.  … [The plaintiff] often experiences multiple painful awakenings in the course of a single night.  As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”

[104](supra) at paragraph [45]

276I accept that the plaintiff ultimately had to give up work because of pain and fatigue in her shoulders, particularly the left, which was giving her “a lot of grief”.[105]

[105]T50, T67

277     Whilst of the view that the plaintiff’s neck condition would affect her ability to work, the consensus of the medical opinion is that the shoulder condition alone would do so also.  In particular, as a result thereof, the plaintiff would have difficulty with over shoulder work and work with repetitive arm movements as described by Mr Miller.

278     Any problems the plaintiff experiences with her knees is separate from the disability relating to her upper limb impairment.

279     Low back pain, whilst interfering with some of the plaintiff’s activities, is not of such severity that the plaintiff has required any specific treatment.

280     Taking into account all the evidence, I accept that the predominant consequences relate to the left shoulder injury from the television incident and that such consequences are serious.[106]

[106]T75

281     I am satisfied the impairment is permanent as the plaintiff has continued to experience ongoing shoulder pain and restriction for many years, despite undergoing a range of treatment.

282     Having granted leave to being proceedings for damages in relation to the left shoulder, I am not required to consider the application relating to the cervical spine.

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