Bransgrove v Spotlight Pty Ltd

[2018] VCC 118

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-17-03626

PAULINE CORAL BRANSGROVE	Plaintiff
v
SPOTLIGHT PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Ballarat
DATE OF HEARING:	7 February 2018
DATE OF JUDGMENT:	22 February 2018
CASE MAY BE CITED AS:	Bransgrove v Spotlight Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 118

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:             Serious injury application – impairment of the right shoulder – 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; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission & Anor v Dennis (1998) 1 VR 702; Richards v Wylie (2000) 1 VR 79; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605

Judgment:                 Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Seccull QC with Mr A Dimsey	Saines Lucas
For the Defendant	Mr W R Middleton QC with Ms F Spencer	IDP 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 with the defendant on 7 May 2013 (“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. The body function said to be impaired is the right shoulder.

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[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

8It is not disputed that the plaintiff suffered an injury to the right shoulder in the incident.  However, the seriousness of any shoulder impairment is in issue.  Further it was submitted any present impairment lacks a substantial organic basis; is not related to the incident and results from other non-incident related medical conditions.

9The plaintiff swore two affidavits and was cross-examined.  Also in evidence were medical reports and other material.  I have read all the tendered material.

The Plaintiff’s evidence

10      The plaintiff is aged fifty-two, having been born in September 1965.  She lives alone, having recently separated from her partner.  She has two children, aged eighteen and twenty-nine. 

11      The plaintiff attended school until Year 10.  Thereafter, she obtained Certificates I, II and III in Retail, and a Certificate IV in Alcohol and Drugs. 

12      The plaintiff worked for the defendant for about seventeen years until March 2014.  She was the coordinator at Custom Made Furnishings at its retail store in Wendouree.  She was a permanent part-time employee, working twenty-one hours a week with considerable unpaid overtime.

13      The plaintiff’s normal duties comprised a lot of computer work, as well as frequent manhandling of stock, including heavy items such as blinds that could be up to 3 metres in length, and curtains which were often made of heavy fabric.  She was often required to work overhead and/or stretching her arms such as when placing roller blinds into boxes and putting curtains on hooks (“the duties”).  Many aspects of the job were physically demanding and required the full and free use of her dominant right shoulder and arm.

14      The plaintiff was paid about $18 an hour, clearing about $570 a week on average. 

15      In 2012, the plaintiff developed low-back pain as a result of lifting heavy stock at work (“the back injury”).  She required treatment, and had to reduce her work to light duties for a period.  Liability was accepted by WorkCover for this injury.

16      It is unclear whether the plaintiff resumed normal duties before the said date.  However, she deposed that she was transferred to light duties as a result, as the back injury before she eventually returned to normal duties and hours in the months leading up to May 2013.  During that time, she experienced increasing aches and pains in her right arm.  As a result thereof, she struggled with the heavier aspects of the work in the period leading up to the said date.

17      The plaintiff could not remember when in 2012 her lower back complaints started, but it would not have been long before Dr Millar organised investigations of her back in October 2012.  She could not recall going off work nor could she remember the date that she resumed normal duties.[3]

[3]Transcript (“T”)15

18      By the said date, the plaintiff had just recovered from her back.  She had not had a clearance from her doctor, but she was actually back doing normal duties and hours.[4]  She could not recall telling Mr Powell she was on restricted duties due to back pain and taking Nurofen when she had the incident injury.  She then said she could not recall if she was still having back pain when she hurt her shoulder but she had had it since on occasion.  This pain is not a still significant problem for her now.  It depends on what she does.  Her back can become sore, but generally it does not trouble her.[5]

[4]T16

[5]T17

19      The plaintiff had increasing aches or pains in her right arm leading up to the said date, demonstrating the site of that pain as in an area lower than her shoulder.[6] She had no treatment in relation thereto before the said date.[7]

[6]T17

[7]T21

20      The plaintiff did not have right shoulder or arm problems before working with the defendant.  However, she had had other health problems including asthma, migraines and depression.  She had also suffered a back injury in the 1990’s when working for a former employer, the FMP Group.  However, she would need to see her medical records to provide full details of her history of health problems and treatment over the years.

21      The plaintiff was not playing sport while her back was symptomatic.  During that time, her back pain stopped her from playing tennis and badminton and affected her ability to do the gardening and look after her parents.  She agreed she had not really engaged in gardening or sports from the onset of her back pain in about October 2012.[8]

[8]T26

22      The plaintiff agreed, as Dr Millar reported, that her job was stressful as of March 2012.  This was before she had a problem with a co-employee.[9]

[9]T23

23      The plaintiff could not remember telling Dr Millar in April 2013 that she was overworked and underpaid, but agreed it was consistent with her evidence that she worked many unpaid hours overtime.  She was overworked and underpaid.  The plaintiff could not remember what was stressing her at work in April 2013, as Dr Millar noted.[10]

[10]T27

24      On the said date, the plaintiff was seated on a swivel chair at work when she turned to pick up a large and heavy pricing manual that was on the shelf behind her.  As she did so, she felt a tearing sensation and pain in the right shoulder (“the incident”).

25      The plaintiff was not sure of the weight of the lever arch folder containing documents but identified it as the manual shown in a photograph which was tendered.[11]

[11]T22

26      The plaintiff first attended her doctor in relation to the incident injury on 15 May 2013.  She then complained of lower back pain as well as pain in her right shoulder.[12]

[12]T28

27      The plaintiff reported the incident to her team leader, Zenna,[13] soon after it occurred.  The plaintiff kept working in the belief her right shoulder would get better.  However, by the end of 2013, it had deteriorated, and she decided to take some extra time off, including long service leave, hoping her shoulder would completely recover.  This did not happen.

[13]T22

28      Whilst on leave, the plaintiff received a phone call from the defendant requesting she come into the office.  At that meeting, she was told she would be made redundant as was the case with all coordinators.[14]

[14]T11

29      At that stage, the plaintiff had not lodged a claim form and she was due to come back to work on 3 March.  She returned to work on that date, working in modified administrative and customer service duties.  She had a lot of restrictions.  She had difficulties typing, she could not pick up fabrics and was not able to unpack stock.  She was unable to lift her arm or lift anything heavy.[15]

[15]T23

30      On 4 March, when the plaintiff attempted to start work, she received a phone call from head office.  She was basically accused of lying about her injury.  She then just had a “breakdown” at work, an anxiety attack, and had to leave.[16] She has not worked for the defendant since. 

[16]T62

31      The plaintiff did not lodge a claim for compensation until 6 March 2014, after she had been advised of the redundancy, because, originally, she did not think the injury was going to be as bad as it was.  She thought it would heal itself.  She had just been on WorkCover and “stupidly” thought that she did not want to put in another claim.  She sought assistance from the union which advised she needed to put in a claim to protect her interests.[17]

[17]T30

32      Although the plaintiff had looked for work by February 2017 when she swore her first affidavit, she had not applied for any jobs.  She was then in receipt of income protection payments, as well as a Centrelink allowance, while studying Certificate IV in Mental Health.  She had difficulty with the organisation that provided mental health training, and was yet to complete the requisite placement. 

33      Hopefully the plaintiff is going to look for work in the near future.  She is yet to do her placement required in the course, and is trying to find a suitable placement.[18]

[18]T56

34      WorkCover has paid for some of the plaintiff’s right shoulder treatment.  She received a permanent impairment benefit for her right shoulder injury.  She also received fifteen weeks’ weekly payments from 5 March 2013, following settlement of Magistrates’ Court proceedings.

35      Treatment to early 2017 had included laser treatment, painkillers and anti-inflammatories.  The plaintiff was treated by doctors at Menssana Mindbody Medicine (“the clinic”) and earlier had been referred by that practice to orthopaedic surgeon, Mr Plank.

36      The plaintiff thought she had seen Mr Plank two or three times.  He put her on a waiting list for right shoulder surgery where she remained until her Magistrates’ Court proceedings in which she was seeking weekly payments.[19] She then spoke to Mr Plank again.  By that time, her right arm was still really sore every time she jarred it.  The movement had not improved but the pain had.  She still had the restriction, but she had gone through that pain and she did not want to go through any more, so she actually consciously decided, on a date she could not recall, that she did not want to go through with the surgery.[20]

[19]T42

[20]T43

37      The plaintiff agreed she told Mr Buzzard that she decided against surgery and Mr Plank had told her that her right shoulder would probably get better itself.[21] She does not have any further appointments with Mr Plank.[22]

[21]T53

[22]T54

38      As of February 2017, the plaintiff was seeing her doctors at the clinic at least monthly.  She was taking Proxen SR, a painkiller and anti-inflammatory, 1,000 milligrams daily; Panadol Osteo as required, and usually a few days a week; Duloxetine, 60 milligrams twice daily; and medication to settle her stomach, twice daily.

39      As of February 2017, the plaintiff continued to suffer right shoulder pain, the level of which was affected by various activities and conditions, including forceful repeated or overhead use of her right arm and exposure of her right shoulder to jolting, jarring, vibration or the cold and lying on her right side.  Pain could travel down the right arm to the elbow.

40      The plaintiff led an enjoyable lifestyle at the time of the incident.  She loved her job, in which she had worked since December 2007, despite some aspects being physically demanding.  She took pride in her work and was conscientious and competent.  She enjoyed customer interaction and providing customers with great service, and making them happy with their product.  She worked many unpaid hours overtime to achieve these outcomes, and enjoyed working with some fantastic people whilst with the defendant.

41      The plaintiff had a strong passion for home decoration and being able to give customers really good ideas.  She was a people person and she enjoyed making people happy, and at work, she also got to use her creative side.  She did not feel good being unable to do that now.  It was something she was passionate about and she loved decorating.[23]

[23]T63

42      While she enjoyed going to work, the plaintiff did have some issues with a new consultant in 2013.[24]

[24]T26

43      Pre injury, outside of the work, the plaintiff enjoyed her relationship with her partner and family members.  She enjoyed frequently working in the garden and playing sports such as tennis and badminton with her two children.  She looked after her mother and late father, and performed house chores, including many for her parents, including doing some renovating for them.

44      The right shoulder injury had devastated the plaintiff’s former lifestyle,[25] preventing her from returning to unrestricted duties at work and she believed it eventually cost her that job.  She was formally made redundant, but believed a new position may not have been offered due to her injuries. 

[25]Confirmed at T41

45      As of February 2017, the plaintiff considered herself permanently unable to work in any job for which she was suited due to her age and general and employment history, together with the effects of the shoulder injury on her physical abilities – a view she held despite her hope of completing the mental health course.

46      At that time, the plaintiff believed she would have continued to work in her job or similar work until sixty-five or later, but as a result of her injuries, her ability to obtain and/or retain any further employment was now severely compromised, if not completely destroyed.

47      The plaintiff’s right shoulder injury affected most of her other usual activities, such as working in the garden and sharing activities with her children.  It impacted on her ability to help her parents, and continued to affect her ability to do things for her mother in her nursing home accommodation. 

48      The plaintiff often felt embarrassed and frustrated about her situation and was less physically active because of her right shoulder injury.  She had lost fitness and put on weight.

49      The plaintiff was restricted in her ability to sell recycled furniture as a hobby with her friend, Joanne.  Her right shoulder injury restricted her greatly with lifting or handling of furniture and greatly restricted her ability to paint and restore furniture.  She required help at times to move furniture.

50      The plaintiff had lost confidence and self-esteem since the shoulder injury and her temperament changed.  She often felt frustrated and got teary because of the effects of the injury on her physical abilities, and believed she had become more difficult to live with.

51      The shoulder injury affected the plaintiff’s family relationships including her sexual relationship with her partner, Maurice. 

52      The shoulder injury affected the plaintiff’s ability to perform home chores such as scrubbing, vacuuming, hanging out the washing and making beds.  It restricted her ability to paint the house and continued to affect some personal chores including doing her hair, brushing her teeth, and going to the toilet.

53      Vacuuming is still painful, and the plaintiff really struggles cleaning and scrubbing.  She cannot wash anything that is up high, like the car roof and she has difficulty attempting to water pot plants.[26]  She has problems washing her hair, having pain every time she does so.  She has difficulty lifting anything up high, such as getting the shampoo off the rack or getting things out of cupboards.[27]  Reaching is a real restriction.  She still cannot do anything like go to the gym, which she used to do all the time.[28]

[26]T57

[27]T58

[28]T59

54      The plaintiff agreed, as she lives alone, she has to do scrubbing, vacuuming, hanging out the washing and making the beds, and she does personal hygiene tasks, because she has to.[29]

[29]T48

55      The plaintiff was previously house proud and fussy.  Her difficulties with housework now make her feel terrible.[30]

[30]T59

56      As of February 2017, the plaintiff’s shoulder injury disturbed her sleep.  Lying on her right side caused pain in the shoulder and could wake her, and keep her awake.

57      The plaintiff’s right shoulder pain certainly continues to impact on her sleep.  When she sleeps on it, it just aches, and she has to toss and turn.  She basically has to hug the pillow to try and take some weight off her shoulder.  She gets maybe four to six hours sleep.  Her amount of sleep varies.

58      The plaintiff denied she had any problems sleeping before the incident because of shoulder pain and could not recall problems sleeping for other reasons.  Now both her left and right sides are equally bad to sleep on.[31]

[31]T48

59      Whilst it was possible, the plaintiff could not recall complaining to her doctor of poor sleep in July 2012 when she was presenting with a depressive illness.[32]

[32]T5

Current complaints 

60      In her recent affidavit sworn 25 January 2018, the plaintiff confirmed she continues to experience right shoulder pain as previously described. 

61      The plaintiff no longer takes strong prescription pain relief as it gave her stomach problems, and she now uses only Panadol as required.[33] Since swearing her first affidavit, the plaintiff had cut out all medication except the occasional Panadol.  She had to do so because she got stomach ulcers prior to the gastric surgery, and after it, she was not able to take anything with an anti-inflammatory.[34]

[33]T40

[34]T44

62      The plaintiff now has difficulty with both shoulders.  She regards the left shoulder problems as flowing from overuse of her left arm to compensate for her right shoulder injury.  However, the left shoulder is not as big a problem as the right. 

63      In the witness box, the plaintiff demonstrated that the right shoulder pain, now, is in the front at the shoulder blade and it can actually travel down to above her elbow at the end of her bicep.  The pain also can d be “a bit around the back” if she tried to pick something up, but the majority of the pain is in the front.  If she lifts something heavy she gets pain travelling down towards the back of her shoulder - “It has always been like that”.[35]

[35]T18

64      The plaintiff still has trouble with above shoulder movement but agreed she had reported to treaters it had improved significantly,[36] but she still had some restriction.[37]  She also agreed the left shoulder, although she reported it being less painful, was certainly stiffer and weaker than the right – “It is kind of frozen in a different place.”[38]

[36]As noted by Dr Thomas in December 2017

[37]T41

[38]T49

65      If the plaintiff lifts her right shoulder, she gets pain, and if she has anything in her hand she struggles to lift it up.  The left shoulder seems to be frozen at the back.  If she lifts it up, she gets “crippling pain” – it just shoots through her left arm and “it’s like one of the symptoms of it actually being frozen because it’s actually caught.”  When she lifts it, it just catches and gives her terrible pain.  She does not have that restriction in her right shoulder where she only has pain up high.[39]

[39]T50

66      When examined by Mr Powell in June 2017, the plaintiff was trying to relax her shoulder but “he was being too quick”.  He was moving her arm and telling her to relax.  She just needed a little bit more time to relax, but was not given it.[40]

[40]T53

67      The plaintiff did not believe her right shoulder is “practically fully resolved” because of the pain she gets when she is trying to lift anything of any weight, confirming the site of her pain in the front of the shoulder joint.[41]  Due to her pain, she is restricted in her movement above shoulder level and has difficulty stretching.  If she tried to lift something high up, like a bag of shopping, she is restricted and gets pain.[42]

[41]T56

[42]T57

68      The plaintiff was unsure when she started getting left shoulder symptoms.  It was in the second half of 2016.[43]  It was maybe a month or so before she had left shoulder investigations and an ultra sound guided injection in December 2016 organised by her doctor that her left shoulder began to hurt.  She “did not leave it.”  She “got onto it as soon as it started”.[44]

[43]T24

[44]T25

69      The plaintiff’s back pain has improved with significant weight loss post-surgery and her right shoulder has also improved.  The left shoulder is now more limited than the right.[45]

[45]T49

Gastric surgery

70      In about July 2017, the plaintiff underwent gastric sleeve surgery to assist in weight loss.  Since then, she has lost about 40 kilograms.  This has made her feel better in herself and has increased her self-esteem.

71      Post-surgery, the plaintiff’s health has improved a lot and the pains have gone, except in her shoulders.  She has not had pain in her lower back for a while, since the operation.[46]

[46]T40

72      The plaintiff did not think, at various times, she had had pain in her lower back since the operation.  She had not had hip pain and had pain in her knees on the odd occasion.[47]

[47]T41

Work

73      Since the incident, the plaintiff has not been able to look for work, in part, due to her injury and the ongoing problems with her right shoulder and, in part, as a result of personal and family factors, including the death of her parents and a recent separation from Maurice, events which have been distressing and disruptive for her. 

74      The plaintiff continues to receive Centrelink benefits and some income protection payments.  She has come to terms with the fact she will be unable to perform physical work as she had previously done, but will have to find different work that does not involve the heavy use of her arms.  She is concerned that work of this nature would be difficult to find, given her work experience and history.

75      The plaintiff, believes her injury, and its impact on her ability to work and perform duties around the home and enjoy recreational pursuits was a very significant factor in the deterioration of her relationship with Maurice.

76      In examination in chief, the plaintiff amended her affidavit evidence about her recent level of involvement in furniture restoration. 

77      In about mid-2017, the plaintiff had a break from this activity.  She stopped then because she was having a lot of shoulder pain.[48] She also then had gastric sleeve surgery in July.  Further, the plaintiff then had to spend a lot of time nursing her mother, who died in September.  The plaintiff then separated from Maurice.[49]

[48]T45

[49]T30

78      The plaintiff does furniture restoration as a hobby.  It is not her job.  After the incident when the plaintiff first started helping her friend Joanne in her business, the plaintiff was not paid a salary.  Joanne’s business no longer operates.[50]

[50]T45

79      The plaintiff now spends about an hour a week on this activity.  She has only worked on one piece which she sold - a small wall stand.  She used a small sander with her right hand to do this job because her left arm is presently more symptomatic.[51] 

[51]T46

80      The plaintiff only wants to do an occasional piece because she enjoys the activity.  She does not want to have a business as such.  She could not do that.[52]

[52]T46

81      Leading up to the middle of last year, the plaintiff was doing maybe once piece every one or two weeks.  Before the incident, she had always done DIY around the house and had always been very hands on.[53]

[53]T46

82      The plaintiff’s right shoulder pain impacts on her ability to do this activity with prolonged movement, causing the pain in her right shoulder.  She cannot lift anything large and can only work for a short amount of time.[54]

[54]T64

Fibromyalgia

83      The plaintiff was diagnosed with fibromyalgia in late 2014 or 2015.  She was not sure of the date.  She used to walk every day because she could not do anything else, and she started to get leg pain and had to stop walking, and she went to see a doctor about it.[55]

[55]T31

84      The plaintiff attended a clinic in Sebastopol where she was advised she was suffering from Fibromyalgia and she was put on a course of tablets.  She then went back to her own doctor who referred her to a rheumatologist.[56]

[56]T32

85      The plaintiff initially saw rheumatologist Dr Hedley Griffiths in February 2015.  He diagnosed Fibromyalgia.  The plaintiff agreed she then had diffuse pain in her legs and lower back and spasm prevented her from getting out of bed at that time as he recorded.  The spasm was more in her legs, it was like a jumping.  When she tried to go to sleep, “her body jumped.”[57]

[57]T34

86      The plaintiff agreed when she saw Dr Griffiths, she had a longstanding history of depression, Irritable Bowel Syndrome and stress. 

87      In April 2017, the plaintiff was also referred to Dr Lucy Croyle, another rheumatologist at Dr Griffiths’ practice.  Dr Croyle suggested psychology, an exercise program and medication for Fibromyalgia.  Thereafter, the plaintiff attempted to see a sports physiologist.[58]

[58]T34

88      The plaintiff agreed, as Dr Croyle reported, that at that stage she described full body aches with marked fatigue, a worsening of symptoms when she was sleep deprived.  The symptoms had been exacerbated over the last two years in the setting of her parents dying and of her being their carer.  She also had much workplace stress.[59]

[59]T37

89      The plaintiff agreed, as Dr Egan, her psychologist reported in December 2016, that she had injuries to her shoulder, her back and Fibromyalgia, and she then had unremitting pain and limited physical mobility in relation to all conditions.[60]

[60]T35

90      The Fibromyalgia is not so much a significant issue for the plaintiff now.  However, she agreed she put an entry on Facebook on 21 February 2017, describing suffering Fibromyalgia for three years and having been cursed by it ever since:

“The pain is bad enough alone but the mental impairment and embarrassment it causes, the emotional turmoil and then to top it off with non belief.  The rolling of eyes the look of shut up I’m sick of hearing of it.  Well I’m sick of living with it.  I cannot – I cannot work I cannot live my life how I thought I would.  My whole life has been turned upside down.  We need help and understanding.”[61]

[61]T36

91      The plaintiff continues to receive superannuation benefits from REST in respect of her ill health.  She could not explain why in a form signed by Dr Allen in April 2017, in support of those ongoing entitlements, he described her condition as Fibromyalgia, chronic lumbar pain and morbid obesity and there was no mention of her right shoulder as the doctor “normally put it in there.”[62]

[62]T38

92      The plaintiff believed her shoulders were included on certificates provided by Dr Allen.  Normally, they were mentioned.  She does not presently provide certificates, having last done so three-quarters of the way through last year.[63]

[63]T55

93      The plaintiff agreed that as at 13 May 2017, as Dr Allen reported, she was symptomatic in her thoracolumbar spine, both shoulders, her knee joints and part of her legs, not all the time, depending on what she did, she could be, occasionally her middle and lower back and both shoulders, and knee joints, occasionally, and her legs not so much now.[64]

[64]T38

94      At present, the Fibromyalgia is not as bad as it was.  The plaintiff tries to walk as much as she can, she does not take medication because of her gastric surgery and her stomach cannot handle it.[65]

[65]T39

Medical evidence 

Treaters

95      Dr Millar from Menssana Mindbody Medicine referred the plaintiff to Mr Gerry Egan, clinical psychologist, in March 2014.

96      In that referral letter, Dr Millar noted the plaintiff had submitted a claim for the reported injury and had recently been made redundant and was not able to cope emotionally with the process of scrutiny of her claim. 

97      Although there was a history of pre-existing depression related to the plaintiff’s family caring responsibilities, Dr Millar noted there had been, in the immediate lead up to her most recent work crisis, a twelve month history of conflict with a work colleague who had consistently undermined her.

98      Dr Millar thought the plaintiff had suffered emotionally as a result thereof, and on top of her work injuries and subsequent redundancy and disputed claim, which were undeniably work related, the plaintiff could no longer cope.

99      Gerry Egan, psychologist, first saw the plaintiff in March 2014 and as of late December 2016 had seen her about twenty-six times. 

100     In Mr Egan’s view, the plaintiff’s depressive symptoms were severe.  He thought her conditions resulted in strong unremitting pain and limited her physical mobility.  As a result of these factors and all that arises from them, her quality of life has diminished considerably and profoundly.  He believed the plaintiff was not fit to work on the basis of her psychological condition alone, and expected that would remain the case for at least the next two years.

101     Dr Millar also referred the plaintiff to Mr Paul Plank, orthopaedic surgeon, in March 2014 in relation to an injury to the right shoulder at work the previous year, noting the serial ultrasound had demonstrated persistent partial tear.

102     Dr Millar wrote to Allianz on 31 March 2014, advising that the plaintiff first consulted for the claimed injury on 15 May 2013, having started attending the practice in March 1998.

103     Dr Millar thought the plaintiff had a tendon tear of the supraspinatus muscle at its insertion into the right shoulder region, as demonstrated twice on diagnostic ultrasound.  She previously had not had the same medical condition or reported the same or similar symptoms.  The Treatment Plan was low level laser therapy.

104     Dr Millar noted the plaintiff had ageing parents whose health, and other needs, created demands on her.  However, that was more of a problem in the past, and she seemed to be managing better in this regard recently. 

105     In a further report to the plaintiff’s solicitors of July 2014, Dr Millar advised that the plaintiff’s shoulder injury did not resolve despite adequate rest, medication, and low level laser treatment, and further orthopaedic opinion was obtained from Mr Plank, who saw the plaintiff in May 2014.

106     Dr Millar advised that Mr Plank’s diagnosis was frozen shoulder, and his recommendation was to perform an arthroscopy and a capsular release. 

107     On 28 February 2014, the plaintiff was started on an antidepressant and she was also referred to Mr Egan.

108     As of July 2014, Dr Millar did not expect full recovery from the plaintiff’s shoulder injury without the surgery recommended by Mr Plank.  Meanwhile, the plaintiff was advised to avoid work that involved heavy lifting, especially repetitively or over above shoulder height. 

109     Dr Millar noted a breakdown in good will between the plaintiff and her employer, however it was more problematic and, ultimately, probably unresolvable.  That is, he did not think the plaintiff would ever be able to cope emotionally at the place of previous employment.

110     Dr Millar died in October 2011.[66] The plaintiff then came under the care of Dr Hepper and Dr Allen. 

[66]T33

111     Dr Hepper reported in late 2016, noting Dr Millar’s July 2014 report.

112     Reviewing and assessing the clinical notes, Dr Hepper advised there was indication that the plaintiff also suffered injuries to her back in 2012 while at work with the defendant, with consultation notes that year in which Dr Millar mentioned discogenic pain and hyperextension centred around L4‑5.

113     Dr Millar had noted this injury resulted in reports of daily pain and the plaintiff being unable to attend to activities of daily living, including anything requiring bending (vacuuming and gardening).

114     Dr Hepper noted that Dr Millar treated the injury and diagnosis of discogenic pain with a combination of medication, low light laser physiotherapy, and advice on pacing for activities.  Further, an x-ray at that time showed no vertebral or bone pathology.

115     As of October 2016, Dr Hepper noted the plaintiff reported that the clinical situation was essentially stable, with the same level of function over the last year.  As a result of reviewing the file, Dr Hepper, in assessing the plaintiff’s present condition, thought re the prognosis, it was unlikely to be any further improvement in her presenting issues from her back injury.

116     Dr Hepper reported the current clinical situation with regard to the right shoulder injury included recent imaging, moderate impairment to the plaintiff’s range of movement on examination that day, reflective of right sided frozen shoulder.

117     Dr Hepper noted the plaintiff was managing that condition with medication, namely anti-inflammatories and Duloxetine, as well as pacing activities of daily living and range of motion exercises.

118     Dr Hepper thought the prognosis was that the plaintiff’s limited range of movement had been stable for over six months now, and seemed unlikely to improve.

119     Dr Allen at that practice reported, in December 2016, repeating a number of matters noted by Dr Millar and Dr Hepper.

120     Having referred to Dr Hepper’s report, Dr Allen said that left two specific questions.  He advised, in the right shoulder, there was abduction to 120 degrees, internal rotation to the gluteal area.  In the left shoulder, there was forward rotation to 90 degrees ie horizontal.  Abduction was 90 degrees, then pain.  Internal rotation was to mid lumbar. 

121     In relation to the lumbosacral spine, there was flexion to mid shin, extension was normal, rotation was restricted, more to left than right, and in relation to both hips, there was restricted rotation.

122     Dr Allen noted the plaintiff was overweight and could not exercise.

123     Dr Allen completed and Income Protection Benefit Ongoing Claim Doctor Statement on 24 April 2017.  Therein, he described the plaintiff’s primary condition as Fibromyalgia, with secondary conditions of chronic lumbar pain and marked obesity.[67]

[67]Similar complaints listed in certificate of that date

124     In a certificate of 25 October 2016, Dr Allen noted:

“Labile emotions, low mood, pain right more than left shoulder on lifting, muscle spasms and poor memory.”

125     In a certificate of 13 March 2017, Dr Allen noted:

“New symptoms of burning, left leg above ankle, very restricted bilateral hip range of movements, increase in knee pain plus insomnia initial and middle.  The current diagnoses were fibromyalgia diagnosed by rheumatologist, work related right shoulder injury then frozen shoulder, left shoulder SA bursitis, BMA greater than 40, patellofemoral arthritis clinically and on bone scan.  Spondylosis of thoracolumbar spine clinically and bone scan, depression last 2014 work incident with previous postnatal depression 30 years ago and bullied at work with avoidance hyper vigilance and memory problem.”

126     Certificates provided by Dr Allen in November 2015 and January 2016 referred to right rotator cuff injury fibromyalgia.  Depression and generalised pain were added to the plaintiff’s conditions in February and May 2016.

127     In September and October 2016 certificates, fibromyalgia was also added.

128     Dr Allen reported to Centrelink, Ballarat, in May 2017.  Therein, he noted the plaintiff had a long history of multiple problems which had accumulated to the current diagnosis, which was significantly impairing her functioning.  She had different types of musculoskeletal diagnoses and subsequent chronic pain.

129     Dr Allen noted degenerative osteoarthritis and spondylosis, with reference to a nuclear bone scan in December 2016, which showed degenerative changes at the thoracolumbar spine, both shoulders, both patellar femoral joints and tibial tuberosities.  In his view, that had a major impact on the plaintiff’s day to day performance, which was summed up in his report 24 April 2017 report, and also a functional assessment by Newington Physiotherapy of 9 February 2017. 

130     Dr Allen thought the prognosis appeared to be a constitutional predisposition to degenerative joint disease, which was more widespread than specific incidents and injuries, for example, the 2012 back injury, and these degenerative problems were likely to get worse.

131     Dr Allen also noted right frozen shoulder in 2014 that had progressed to bilateral painful limitation of movement.  He thought this was also consistent with a constitutional predisposition.  He thought the plaintiff doing any repetitive tasks with her arms was problematic.

132     Noting the diagnosis of Fibromyalgia, which he said may sound vague, Dr Allen stated it can cause major disability, both musculoskeletal pain and neurocognitive difficulties of impaired concentration, memory and fogginess.  He noted this diagnosis was carefully argued by Dr Croyle in April 2017.  He noted Dr Croyle was hopeful of some improvement, but usually there was a protracted course.

133     Dr Allen noted the plaintiff’s depression, which first started after having her children, but which was much more significant since the back injury, and deterioration in general health interfering with daily tasks, social life and any possible return to work.  Dr Allen could not see any resolution under the current chronic pain and unemployment.

134     Dr Allen concluded the plaintiff may benefit from her bariatric surgery, but this was not a treatment for Fibromyalgia, and her degenerative joint problems were likely to persist with at least fluctuating depression. He noted, presently she was struggling to face placement for her counselling course as she was anxious and depressed, and it was uncertain whether this would eventuate into a paid job.

135     In a letter to the plaintiff’s solicitors in December 2017, Dr Allen advised he thought the plaintiff had no current capacity for work and that he was awaiting specialist report to determine how much of her current total incapacity was related to the conditions contained in her claim.

136     Mr Paul Plank, orthopaedic surgeon, wrote to Dr Millar in May 2014, thanking him for referring the plaintiff.

137     On examination, Mr Plank found the plaintiff had a global restriction to her range of right shoulder motion with restricted forward elevation, external rotation and internal rotation.

138     Mr Plank noted the plaintiff had had an ultrasound confirming a partial tear of the supraspinatus tendon.[68]  He thought, clinically, she had all the hallmarks of a frozen shoulder, and he explained that to her.

[68]Ultrasound reports described subscapularis tear

139     Mr Plank recommended a shoulder arthroscopy and capsular release.  Whilst, being a public patient with a healthcare card, he had added the plaintiff to his waiting list in Stawell to have that procedure.

140     In a subsequent report, Mr Plank advised that he had never seen the plaintiff about her back issues, as he did not treat people in that regard.  In regards to her right shoulder, he believed the plaintiff’s injury was due to the course of her employment with the defendant. 

141     As of July 2014, Mr Plank thought the plaintiff’s only capacity for work would be light duties which involved no heavy lifting or overhead work.  He confirmed his recommendation for surgery.

142     The plaintiff was seen at Barwon Rheumatology Service by Dr Hedley Griffiths in September 2015 and Dr Lucy Croyle, most recently in April 2017.

143     Dr Griffiths reported on 28 September 2015, having seen the plaintiff on referral from Dr Akbar.  On examination, the plaintiff had reduced spinal mobility.  There were widespread tender trigger points around the neck and shoulder girdles and pelvic girdles.

144     Dr Griffiths considered it likely the plaintiff was suffering from fibromyalgia more than anything else.  He thought she needed to be encouraged to pursue a low impact light aerobic exercise program as a long term lifestyle strategy.  He did not believe there was much to be gained from using muscle relaxants and she should be encouraged to use hot packs, gentle massage, stretching exercise and any other physical measure that might relieve muscle tension.

145     On examination, Dr Griffiths noted that the plaintiff was an overweight woman who was otherwise well.  The plaintiff and her friend were planning to start a more vigorous exercise program and he encouraged them to keep that going as a long term strategy.

146     Dr Croyle reported in April 2017, thanking Dr Allen for referring the plaintiff for a second opinion regarding possible fibromyalgia.

147     Dr Croyle noted the plaintiff had a long standing history of irritable bowel disease, migraines had been diagnosed in 2003 and she had recurrent sinus irritation. 

148     On examination, the plaintiff described full body aches with marked fatigue and a worsening of symptoms, when she was sleep deprived.  Her symptoms had been exacerbated over the previous two years in the setting of her parents dying and having been the carer for them and she also had much workplace stress.

149     Dr Croyle noted in the management of the plaintiff’s back pain (an injury five or so years ago) and her shoulder injury in the incident, there did not appear to have been any long term physiotherapy.  There had been some intermittent laser therapy.  The plaintiff remained on Naprosyn for her back pain during the winter and she was also taking medication for depression which had been diagnosed since her second child and she had had ongoing episodes to a varying degree since and was continuing to see a psychologist.

150     On examination, there was some limitation of lumbar and cervical mobility.  Sacroiliac stress tenderness was negative.  Straight leg raise was negative bilaterally with normal neurological examination.  The plaintiff had tender points on her anterior chest wall upper and lower limbs in a widespread diffuse fashion.

151     Dr Croyle thought the plaintiff appeared to have fibromyalgia.  This was consistent with the sensation of stiffness, that resolved with movement, light heat smell sensitivity, irritable bowel, irritable bladder, migraine, sinus reactivity and multiple stressors.

152     Dr Croyle noted bone scans and CT scan showed upper thoracic bilateral shoulder patellofemoral osteoarthritis. X-rays of the neck and shoulder revealed very mild osteoarthritis of the AC joint.  Ultrasound as well showed prior suggested tendinosis of the shoulders and a prior subacromial bursitis.

153     Dr Croyle discussed with the plaintiff fibromyalgia could be well managed with marked improvement over eighteen to twenty-four months.  That involved a three pronged attack including psychology assistance for mindfulness or cognitive behavioural strategies. 

154     The plaintiff also required an exercise program likely with the assistance of an exercise physiologist and Dr Croyle gave her some information regarding pacing and other strategies.  Finally, the appropriate medication such as Duloxetine was already in use.  The plaintiff was reluctant to add any Lyrica or Endep given its inherent weight gain risks.

155     Dr Croyle noted no formal plans had been made for follow-up and she had given the plaintiff a lot of information regarding management strategies and reiterated the potential for marked improvement in her functional state over the next eighteen to twenty-four months if they could add some daily exercise to this process.

Investigations

156     Following an ultrasound on 29 July 2013, it was reported there was a small, deep surface partial thickness tear of the subscapularis tendon which would potentially explain the anterior symptoms and signs.

157     There was a further ultrasound of the right shoulder on 25 February 2014.  Thereafter, it was reported there was a partial thickness tear at the insertion of the subscapularis.  No other full thickness tear was identified.  There was no restriction to movement.  The bursa was normal.

158     Following an ultrasound of the plaintiff’s right upper arm and shoulder in January 2015, it was reported there was subscapularis tendinosis and mild bursal impingement on dynamic assessment, with significant limitation of movement.  It was noted “Adhesive capsulitis?”

159     An x-ray of the right shoulder also in January 2015, showed the glenohumeral joint was normal, as were the clavicle and AC joints and acromion.  The lateral outlets were preserved and there was no calcific tendinosis.

160     Following an ultrasound of the right shoulder also in January 2015 in August 2015, it was reported the biceps tendon was unremarkable, with no tear or fluid.  The rotator cuff showed no tear or calcification, but the cuff was of mixed echogenicity from tendinosis.  The bursa was normal, with no thickening or fluid, and there was no impingement on abduction.  It was concluded there was tendinosis, but no other abnormality shown.

161     Dr Allen organised an ultrasound of the left shoulder and also an x‑ray on 6 December 2016.

162     Following the ultrasound, it was reported the subscapularis was intact.  There was a partial thickness intrasubstance anterior tendon tear of the supraspinatus, measuring five millimetres by seven millimetres.  The bursa was thickened with fluid.

163     The left shoulder x‑ray was reported to show the left shoulder joint was enlocated with no significant degenerative changes.  No subacromial spurs were identified and it was noted there were mild degenerative AC joint changes. 

164     An x‑ray of the hips on that date showed no significant degenerative changes of either hip.

165     The plaintiff underwent a regional bone scan with SPECT organised by Dr Allen on 12 December 2016.  It was reported there was degenerative change in the thoracolumbar vertebrae and arthritic changes in both shoulders and the patellofemoral joints.

166     An ultrasound guided injection – subacromial bursa – was carried out on 14 December 2016.

The Plaintiff’s medico-legal evidence

167     The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, in September 2014.

168     The plaintiff then told him of a back problem in 2012, feeling something go in her lower back while unlocking drapes and hanging them on some high hooks at work.  She consulted her local general practitioner, who prescribed some painkilling medication, and she was put on light duties.

169     The plaintiff then underwent light laser treatment.  She advised the pain very slowly improved, and after about twelve months it had in fact resolved, and she was able to continue with what were regarded as normal duties.

170     The plaintiff described the incident in which she suffered injury to her right shoulder.  She reported that over the next week she noted continuing right shoulder pain radiating to the neck on both sides and extending to the left shoulder.  The pain was constant and quite severe.  She attended her own doctor, who treated her with light laser treatment, but that did not really improve the severity of her pain and she was subsequently sent for investigations which showed a tear.

171     The plaintiff continued with normal work despite ongoing pain in the right shoulder, and conservative treatment gave her only some temporary benefit.  By the end of 2013, her pain had not improved and she decided to take some long service leave, during which time the pain appeared to increase in severity.  Not long before she returned to work, she was contacted by her employer and advised she was to be made redundant in July.

172     The plaintiff returned to work on 3 March 2014, undertaking normal duties, and the following day, she got a phone call from Human Resources, which apparently followed her putting in a WorkCover Claim for her shoulder injury.  After a discussion with her boss, the plaintiff got very upset and anxious and consulted her doctor, who put her off work and referred her for counselling.

173     As ongoing shoulder pain continued, the plaintiff was referred to surgeon Mr Plank, who suggested surgery, but that had not been accepted by the insurer.

174     On examination, the plaintiff described constant pain, mainly over the superior aspect of the right shoulder, which could extend to the posterior aspect and into the lateral aspect of the right upper arm.  Constant pain was rated at about 3-4/10 but, with activity, could increase to 6/10.  She advised of difficulties doing house work and personal hygiene tasks, and also sleep disturbance.

175     The plaintiff had recently been referred to an exercise physiologist.  She was taking antidepressants, but not taking any painkilling tablets.

176     The plaintiff was doing light domestic tasks and indicated she was capable of normal activities of daily living.

177     Mr O’Brien thought clinical signs certainly demonstrated quite marked restriction of shoulder movement, particularly rotation.  He noted, indeed, from the clinical perspective this would indicate the presence of adhesive capsulitis producing marked restriction of the glenohumeral joint.

178     Mr O’Brien had available the ultrasounds of July 2013 and February 2014, and the reports in relation thereto.

179     Mr O’Brien considered the plaintiff’s employment continued to be a significant contributing factor to her right shoulder pathology.  He thought the clinical condition was basically stable and considered the suggestion of surgery was, in fact, reasonable.

180     Mr O’Brien then remained very guarded in relation to the plaintiff’s prognosis, with her clearly describing chronic shoulder pain, which had been ongoing and, to date, poorly responsive to treatment.

181     Mr O’Brien noted, indeed, the plaintiff now reported moderate disability.  He considered she would not be capable of pursuing pre injury duties, which clearly involved some heavy manual tasks.  In no circumstances, however, he did not suggest she was totally incapacitated and she would not cope with light or modified duties.  He thought it was premature in the circumstances where surgery was proposed, to suggest incapacity was permanent but certainly then, he thought the plaintiff was limited in her general social, domestic and recreational activities and that was likely to be ongoing.

182     Mr Thomas Kossmann has seen the plaintiff twice, initially in November 2016 and, more recently, in October 2017. 

183     The plaintiff gave a history of having returned to her normal work after the 2012 back injury.

184     At the most recent examination, the plaintiff told Mr Kossmann she had ongoing pain in her lumbar spine and movement restrictions in her right arm and left shoulder joints, which disturbed her sleep.  She had difficulty with some activities of daily living, like putting on her shoes and socks, and she struggled to cut her toenails.  She had difficulties putting on a bra, and also with her personal hygiene.

185     The plaintiff thought she was unable to return to her previous work with the defendant which involved heavy lifting of rolls of material. 

186     The plaintiff told Mr Kossmann on the first examination of difficulties standing for long periods due to her back injury.  She also told him she would have difficulties with administrative work on the computer and data entry due to her right shoulder condition. 

187     The plaintiff also complained of Anxiety and Depression as a result of her injury. 

188     On re-examination, the plaintiff told Mr Kossmann that she suffered from Fibromyalgia, which was diagnosed by her general practitioner.

189     The plaintiff also told Mr Kossmann she was engaging in hobby furniture restoration.  This work was sporadic and light, and she was able to cope with it despite her injuries, since she could self-pace.  She told him that she may spend a couple of hours a week in this kind of recreational activity, together with her friend.

190     The plaintiff told Mr Kossmann she took Panadol Osteo when needed, and did not undertake any specific treatment.

191     On both examinations, the plaintiff told Mr Kossmann her shoulder and lumbar spine conditions had had a profound impact on her social, domestic and recreational activities, with her partner taking care of household chores. 

192     On initial examination, the plaintiff told Mr Kossmann that prior to the work incident she took care of the garden.  Nobody looked after it and she described it as growing wildly after the incident.  Her partner mowed the lawn.  She told Mr Kossmann she does not undertake any additional recreational sport activities anymore.

193     On re-examination, Mr Kossmann diagnosed the following:

(a)rotator cuff pathology, right shoulder, in the form of a partial thickness tear to the subscapularis tendon and tendinosis of the rotator cuff;

(b)pain in movement, restrictions in the left shoulder joint of unclear reason;

(c)pain in the lumbar spine of unclear reason.

194     Mr Kossmann noted, after the 2012 back injury, the plaintiff was able to return to work on light duties and then the incident occurred.

195     Mr Kossmann concluded the prognosis regarding the plaintiff’s lumbar spine was guarded.  He thought she may require conservative treatment with pain medication and anti-inflammatories, and may also benefit from physiotherapy and hydrotherapy.

196     Mr Kossmann considered the prognosis regarding the plaintiff’s right shoulder was poor.  She had decreasing mobility and apparently an increase in pain in her right shoulder joint.  He thought she would require further treatment with pain medication, anti-inflammatories, physiotherapy, and hydrotherapy and possibly acupuncture.  She may also be a candidate for further surgery in the form of arthroscopies.  He considered she may also develop osteoarthritic changes in her right shoulder joint for which she may require further treatment, however, he could not give a timeframe if, and when, that would occur.

197     Mr Kossmann thought the prognosis regarding the plaintiff’s left shoulder was poor noting, also, a decrease in her mobility and, apparently, an increase in pain.  He suggested a similar course of treatment as that to the right shoulder, and made similar comments as to the prospects of osteoarthritis in that shoulder. 

198     Mr Kossmann recommended a referral to a psychiatrist, noting the plaintiff complained of suffering from Anxiety and Depression as a result of her injuries.

199     Mr Kossmann thought the plaintiff had partial work capacity, noting she is able to restore furniture in a self-paced work capacity.  She can always stop should she suffer from increasing pain in her shoulder joints.  She told him she copes with this type of work as long as she is able to adapt her work capacity according to her symptoms and that time would tell if she was able to continue with this work.

200     Mr Kossmann thought the plaintiff had a very limited work capacity for light modified duties and no capacity to return to her pre injury employment.  She would be able to do alternative duties as long as she was not forced to walk long distances, walk on uneven ground, walk up and down stairs, inclines and declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kilograms.  Furthermore, she should not work permanently with her upper extremities, work above shoulder head height or lift heavy items weighing more than 2 to 5 kilograms.  He thought she was only able to work in a sedentary position and should avoid any physically demanding work.

201     Mr Kossmann recommended the plaintiff commence work in a return to work program for two to three hours a week, slowly increasing her work capacity, and thought she may be able to work fulltime, but time would tell.  He considered those work restrictions were mainly due to her work related injuries.[69]

[69]Back and right shoulder

202     Mr Kossmann provided a supplementary report in January 2018, following a request by the plaintiff’s solicitors to direct his comments to the plaintiff’s right shoulder injury and not her back injury.

203     Mr Kossmann advised he thought the plaintiff had a very limited work capacity for light modified duties as a result of the right shoulder injury, noting the contents of his previous report.

204     Mr Kossmann thought the plaintiff could do all work duties where she does not use her upper extremities, constantly work above shoulder or head height and avoid lifting items weighing more than 2 to 5 kilograms.  He suggested the workplace be designed so she could perform duties in that context.

205     In Mr Kossmann’s opinion, the plaintiff’s incapacity for work was mainly due to the work related right shoulder injury. 

206     Mr Kossmann confirmed the plaintiff’s history of ongoing pain and movement restrictions in her right shoulder which disturbed her sleep, interfered with activities of daily living, and her advice that her right shoulder condition had a profound impact on social, domestic and recreational activities that he had described in his earlier report.  He also confirmed his views as to the need for future treatment.

207     The plaintiff was examined by consultant rehabilitation specialist, Dr Clayton Thomas, in December 2017.  She then told him she had separated from her partner two weeks earlier.

208     The plaintiff told Dr Thomas about the injury to her lower back in 2012, after which she was put on light duties and had no time off work.

209     The plaintiff further advised that she was diagnosed as suffering from Fibromyalgia by her general practitioner, and was referred to two rheumatologists in Geelong, who confirmed the diagnosis.

210     Dr Thomas noted, in any case, the plaintiff reported she was doing well and her back was almost fully recovered when the incident occurred.

211     On examination, the plaintiff reported right shoulder pain, worse when doing overhead shoulder activities.  The pain was in the front of the shoulder, and constant.  It was worse if she slept on her right shoulder, and she tended to favour her left.  She advised that the left shoulder also had a tear.  The right shoulder was worse than the left, but both were painful.

212     Current medication was predominantly Panadol.

213     The plaintiff also reported poor sleep, depression and Irritable Bowel Syndrome.

214     Dr Thomas thought the plaintiff had had significant changes over the last four years, initially a back injury, and then a right shoulder injury.  There was the gastric sleeve procedure, with substantial weight loss, and significant social upheaval with her recent separation from her long term partner.

215     Dr Thomas noted the plaintiff had been diagnosed with Fibromyalgia, and he thought she certainly met the criteria for that condition which was one in which normal pain defences do not work properly and, therefore, acute injuries are more problematic to treat, both in terms of medication requirements and severity of pain.

216     Dr Thomas thought it appeared the plaintiff developed her right shoulder that was frozen but, with time, as is often the case with adhesive capsulitis, the movement improved, and that was certainly what had happened here.  Flexion was 130 degrees and abduction 120 degrees.  There were no impingement signs and internal and external rotation and adduction were all well preserved.

217     Dr Thomas thought the plaintiff’s left shoulder, now, would appear to be a clinically frozen shoulder adhesive capsulitis, and although she reported it being less painful, it was certainly stiffer and weaker than the right.

218     Dr Thomas thought that a nuclear bone study suggesting arthritis of the shoulders was “intriguing” in the absence of any other investigations confirming this.  Often, the acromioclavicular joints come up as inflamed on bone scans and very non-specific findings, but that was not elaborated on in the nuclear bone scan studies to indicate whether it was the shoulder joint proper.

219     Dr Thomas reported that complicating the plaintiffs physical problems, had been one of significant emotional distress, with the plaintiff describing a ‘breakdown’ in March 2014, and she had had quite significant psychological support.

220     In Dr Thomas’ view, the plaintiff’s condition had continued to evolve.  Every six months another major event seemed to have occurred for her.  It appeared that her back improved with significant weight loss.  It also appeared that her right shoulder had also improved after the onset of pain there, noting the left was now more limited than the right.  He anticipated the plaintiff’s left shoulder would mirror the right shoulder, and ultimately have a return of better range of movement than it currently does and, therefore, a return of functionality.

221     Dr Thomas thought the plaintiff has a work capacity which is limited and while he was not privy to any investigations of the lumbar spine, he thought that work needed to be reasonably back friendly and, certainly, semi sedentary or sedentary work would be appropriate and reasonable for the plaintiff.  He noted that she certainly had capacity for the work she was being trained for.

222     As far as physical restrictions were concerned, Dr Thomas thought the plaintiff would have a 5 kilogram lifting limit between waist and shoulder, she should avoid any activities below waist height and above shoulder height, and within those restrictions, had a capacity for part time work of twenty eight hours a week in a reliable and sustained manner.  He considered, however, she did not have capacity for pre injury employment.  The restrictions he placed would need to be modified, depending on the physicality and requirements.

223     Dr Thomas had no doubt the plaintiff’s pain and disability has had a marked impact on her overall daily living including the ability to function socially and recreationally.  Given the history from her, further improvement was likely to the left shoulder.  Given the history of Fibromyalgia, which he confirmed as being present, a conservative course of treatment remained appropriate.

Vocational evidence

224     Mr Bill Radley, psychologist and vocational assessment specialist from Job Options Consulting, provided a vocational assessment report on 6 November 2017.

225     Based on the medical reports and his vocational assessment, in terms of her right shoulder, Mr Radley thought the plaintiff had a capacity for part time or fulltime employment in alternative occupations for which she has the necessary skills, training and experience, such as service console operator, therapy aide or residential care worker.  He considered she may have some capacity for a wider range of full or part time employment in occupations such as community support worker, family support worker, youth worker or hotel/motel front office clerk in the future, if she were to complete an appropriate occupational retraining course. 

226     In a supplementary report, Mr Radley provided analysis of wage rates for these roles.

The Defendant’s medico-legal evidence 

227     The plaintiff was examined by Mr Robin Williams, orthopaedic surgeon, in April 2014.

228     The plaintiff then told Mr Williams, with the right arm hanging by her side, her right shoulder was not too bad.  She had pain when she raised her arm, extending down the outer aspect to the elbow and the proximal part of the extensor aspect of the right forearm.  There was also some pain extending from the shoulder up to the neck and, at times, pain across the front of the chest to the left shoulder.

229     The plaintiff told Mr Williams, prior to the incident she had not had any significant problems, although she did have a problem with her back in 2013, resulting from some injury at work, and she was on light duties until a month before the incident.

230     The plaintiff told Mr Williams she had difficulty with the housework, particularly mopping, cleaning and hanging out clothes.

231     The plaintiff’s manner was quiet on examination, but Mr Williams felt that the description of her shoulder symptoms indicated a significant non organic component to her sense of illness related to that joint.

232     On examination, the plaintiff’s shoulders were symmetrical.  She moved the left freely, but had some difficulty raising the right upper limb at the shoulder, and could only just reach her right hand into the back of her neck and into the small of her back, complaining, as she did so, there was increased pain on the outer aspect of the right shoulder.

233     Mr Williams had read the reports of two radiologists who commented on the supraspinatus tendon tear and lack of significant bursal thickening.

234     Mr Williams thought, at the right shoulder, the plaintiff had some pain and restriction of movement, and then the ultrasound had demonstrated a small tear in the supraspinatus tendon.  He considered this may be degenerative, although it was possible the movement the plaintiff performed in the incident contributed to the abnormality.  He thought it was probably a new injury.

235     Mr Williams noted the plaintiff had developed what was described as an Adjustment Disorder and he thought that was probably then the most significant contribution to her state of incapacity at that time.

236     Mr Williams thought the provision of a suitable position was required to achieve a full return to work.

237     Mr Williams noted the plaintiff had been had been having fairly frequent laser treatments, which did not appear to be having any lasting therapeutic effect.  He considered self-management of her shoulder condition by suitable exercises was appropriate.

238     Mr Buzzard examined the plaintiff on 22 December 2015.

239     In terms of present complaint, Mr Buzzard noted the plaintiff had soreness in the right shoulder, sometimes associated with swelling, and right shoulder trouble was now static but, overall, it was variable.  She was then taking Panadol Osteo variably, but averaging two a day, and Naproxen, about one a day, and an antidepressant.

240     Present complaints also included Fibromyalgia which, Mr Buzzard noted, gave the plaintiff sleeplessness associated with pain in the right shoulder involving her legs “right throughout” sometimes at night, and short term memory problems.  He noted the Fibromyalgia was diagnosed by one of the plaintiff’s locum doctors, and that had been so since October 2014, and it was worsening, and the plaintiff was on “depression medication” in relation thereto.

241     Mr Buzzard mentioned the plaintiff had a back injury in 2012; she had had no time off work, and had completely recovered from it at the time of hurting her right shoulder.

242     When specifically asked about her ability to undertake activities of daily living, namely dressing herself, washing herself, feeding herself and toileting, the plaintiff said she was able to do all those things.

243     The reports of investigations undertaken were available.

244     On examination, there was some tenderness in the anterior aspect of the right shoulder and some restriction of movement.

245     Mr Buzzard thought the plaintiff suffered injury to her right shoulder as a result of the incident.  That had been demonstrated to be a rotator cuff tear on the imaging reports he had been sent, and the most recent one showed some suggestion of bursal impingement, possibly adhesive capsulitis. 

246     Mr Buzzard thought the plaintiff would benefit from some further invasive treatment of her right shoulder, noting Mr Plank had advocated an arthroscopy, which he thought would be appropriate.

247     In terms of employment, Mr Buzzard thought the plaintiff was not able to work in a job involving a range of movement of the right shoulder greater than that which was demonstrated in his impairment evaluation.

248     Mr Buzzard noted the plaintiff claimed to be having Fibromyalgia.  He did not think that was in any way related to her right shoulder pathology or her employment.

249     Mr Buzzard allowed an 8 per cent whole person impairment in relation to the right shoulder, which he thought was stable if there was not surgery, but may improve with surgery.

250     Dr Roy Karna, rheumatologist, examined the plaintiff in February 2017.  He carried out a dual assessment in relation to the lower back, with the designated date of injury being 1 July 2012.  He examined the plaintiff’s spine only.

251     Dr Karna noted a history of back injury while working at Bendix, however, that discomfort had totally resolved, such that the plaintiff commenced working with the pre injury employer in good physical condition.

252     Dr Karna noted the July 2012 back injury, and the subsequent development of the plaintiff’s right shoulder problem in the later incident.

253     The plaintiff said her back discomfort had persisted, but tended to be intermittent, such that she had periods when she was symptom free.  If she did too much work at home, whether it be gardening or house cleaning, she would have increased back discomfort, which was worse in colder weather.  She described a sitting tolerance of one to one and a half hours, and standing of about fifteen minutes.  Walking was beneficial, loosening her back.

254     Dr Karna noted, superimposed upon the lower back discomfort, the plaintiff had been diagnosed as having Fibromyalgia in late 2014, based on generalised stiffness, exhaustion, memory loss and general musculoskeletal aches and pains.

255     The plaintiff reported currently her lower back is not too bad.  When she did have pain, it tended to be in the left lumbosacral region and it stopped her from gardening, vacuuming, mopping and making beds for long periods of times, and activities in the house had to be done in a piecemeal fashion.  Her right shoulder remained an issue.  She got help with home activities from her partner.

256     Current medications then included Cymbalta, Panadol Osteo and Naprosyn, slow release.[70]

[70]No detail as for what condition this medication is being prescribed- examination related to the back

257     Dr Karna thought from a diagnostic perspective, the plaintiff presented with lower back complaints and symptoms, but there were no structural or musculoskeletal physical findings to point towards a specific physical injury.  He noted the intermittency of symptoms, the absence of features of primary pathology or disuse, the normal neurological examination in the lower limbs, the lack of recent treatment and the general physical findings.  On that basis, he suggested the plaintiff had residual symptoms after resolved soft tissue injury to the lower back, but had no physical findings.  He thought soft tissue injury to the lower back may well have occurred in the work context, but in the absence of physical findings, he believed that had now resolved.

258     Dr Gerard Powell, consultant orthopaedic surgeon, examined the plaintiff in June 2017.

259     Dr Powell noted the plaintiff was returning to work on light duties following a lower back injury that occurred at work in 2012.  In May 2013, she was still on light duties with restricted heaving lifting when the incident occurred.  She told him she was taking Nurofen for her back at that time, and there was a lifting restriction.

260     Current medications were Cymbalta, for a combination of pain management and depression, and Panadol Osteo, as required, for shoulder pain, and also Naprosyn, slow release.

261     The plaintiff described constant pain in her right shoulder region, which was a combination of aching, sharp burning pain, and throbbing pain radiating from her shoulder down into her right arm.  It was aggravated by trying to use her arm overhead, or doing any lifting or stretching, and exacerbated by sudden movements of her arm.  Movement of her arm had gradually improved over the years.

262     The plaintiff reported she had started seeing an exercise physiologist at a health care centre in Sebastopol and she was then awaiting gastric sleeve surgery.

263     The plaintiff advised that over the last three months she had had symptoms of left shoulder pain, very similar to those in the right.  She had had an ultrasound which had, again, shown a rotator cuff tear.  She had a cortisone injection three months’ earlier, which gave her a month of pain relief.  She was not having any other treatment apart from the analgesics.

264     The plaintiff struggled with dressing, grooming and toileting.  She had difficulty with any movement that required getting her hand to her head or over shoulder height.  She struggled to drive, and found reversing particularly difficult, as she found it difficult to move her neck.

265     The plaintiff reported she used to enjoy gardening, but could not pursue that because of her shoulder.  Her other major interest was recycling furniture.  Her partner helped her with that and she did not do any of the lifting.  She tended to use paints now that did not require any sanding of the furniture, as she could not do that task.

266     On examination, the plaintiff presented as morbidly obese.  Dr Powell thought restriction of movement in the shoulders appeared to be due to pain inhibition.

267     Dr Powell considered the plaintiff currently presented with an Unspecified Pain Syndrome.  He noted the ultrasound findings of a partial thickness tear of the subscapularis were consistent with minor rotator cuff tendinopathy.  He considered it possible she developed a frozen shoulder on the right, but she currently does not exhibit physical signs consistent with that diagnosis.

268     Dr Powell thought the currently exhibited range of movement in the shoulder is consistent with pain inhibition.  He considered the plaintiff looks to have an Unspecific Pain Syndrome and he thought the ultrasound findings would be fairly typical of low grade tendinopathy consistent with her age or, at most, a very minor injury to the subscapularis tendon.

269     As it was now over four years since the injury, in Mr Powell’s view, the ongoing restriction in range of movement was not consistent with a diagnosis of rotator cuff tendinopathy, nor consistent with a diagnosis of adhesive capsulitis.  He thought the plaintiff’s prognosis was, therefore, poor, and it was likely that she would have ongoing symptoms of pain and stiffness related to her right shoulder.  In his view, there was no requirement for any surgical intervention, and ongoing therapy should be aimed at patient controlled analgesia and coping techniques.

270     Dr Powell did note, however, the plaintiff’s shoulder condition prevented her from reaching above shoulder height or any sudden movements of her right shoulder, and she was not able to lift any heavy weights with the right shoulder.  He noted she struggled with personal grooming, dressing and personal hygiene as a result of stiffness and pain in her right shoulder.

271     Dr Powell considered physical examination findings were consistent with a significant element of functional overlay.  Of note, there was tenderness with flinching and trigger points that were global across both shoulder girdles and the recorded range of motion was symmetrical.

272     While not attaching great significance to the tears found on ultrasound, Mr Powell thought the mechanism of injury described by the plaintiff was consistent with having sustained minor trauma to her rotator cuff tendons.

273     On the basis of the history and clinical examination findings, Mr Powell concluded the incident was not a current contributing factor to the plaintiff’s current presentation.  While it may have initiated the problem, any physical injury now has been superseded by a Chronic Pain Syndrome with features of psychological overlay.  He considered ongoing treatment should be directed towards patient directed pain management strategies.

274     Dr Powell thought the plaintiff had a capacity for full time sedentary work, and if there was a psychological injury contributing to her workplace incapacity, that should be evaluated by a psychiatrist.  Any further work capacity would depend on a role that did not require any lifting over 2 kilograms and an ability to avoid repetitive reaching movements, and a restriction on any overhead movements or lifting to the level of shoulder height.

Overview

Compensable injury

275     Whilst the plaintiff’s Claim for Compensation, lodged a year after the incident, was initially denied, it is not in issue that she suffered a compensable injury to her right shoulder in the incident.[71]

[71]T10

276     The plaintiff has received an impairment benefit pursuant to Section 98 and limited shoulder treatment has been funded by the defendant.  There was also a settlement of the plaintiff’s weekly payments entitlement.[72]

[72]T10

277     The plaintiff reported the incident injury at work[73] and attended her general practitioner on 15 May 2013 in relation thereto and then underwent treatment for her right shoulder.

[73]Claim Form- report to Zenna, Furnishing Team Leader on day of incident.

278     It is accepted that the plaintiff’s injury started with an anatomical basis.[74]

[74]T78

279     A tear of the right subcapularis was initially shown on ultrasound in July 2013 and again on 25 February 2014 but not in the ultrasound of 30 January 2015.

280     Interestingly, in both of his reports, Mr Plank stated the plaintiff had an incident related right supraspinatus tear and suggested arthroscopic surgery and capsular release for a frozen shoulder.[75]

[75]T99

281     However, it is unclear why Mr Plank mentioned the supraspinatus as all other practitioners based their views on the ultrasound findings of a subscapularis tear.

282     In any event, the consensus of medical opinion is that the plaintiff, at least, initially suffered a frozen right shoulder as a result of the incident which Mr Plank sought to surgically release- a course supported by Mr Buzzard.[76]

[76]Mr O’Brien, Mr Buzzard, Mr Kossmann, Mr Powell- mechanism of the injury was consistent with a minor injury to the subscapularis tendon, Dr Thomas did not comment specifically on this issue 

283     Mr Williams thought the tear shown on the 2013 and 2014 ultrasounds was possibly contributed to by the incident.  Dr Thomas did not comment specifically on this issue simply noting the plaintiff had a frozen right shoulder in the past.

284     I am satisfied the plaintiff suffered a subscapularis tear in the incident, injuring her right shoulder for the first time.

285     Whilst it is the impairment not the injury which must be “serious”,[77] counsel for the defendant submitted the tear was nothing more than a minor aberration consistent with a person of the plaintiff’s age as Mr Powell opined. Further, at most, Dr Powell thought it was a very minor injury to the subscapularis tendon.[78] 

[77]Richards v Wylie (2000) 1 VR 79 at paragraph [86]

[78]T83

286     No other examiner commented specifically on these findings with Mr Kossmann simply repeating the findings on ultrasound.[79]

[79]T76

287     In response, counsel for the plaintiff submitted if Mr Kossmann had any concerns about the ultrasound findings, he would have commented on them.[80] 

[80]T94

Current condition

288     As I indicated to counsel during the hearing, having accepted a compensable injury to the right shoulder, the cause of any present shoulder complaints must then be considered.[81] 

[81]T86

289     counsel for the defendant confirmed in opening, it was in issue whether the plaintiff’s current condition is organically based and THAT the principles in Meadows v Lichmore Pty Ltd[82] therefore applied in this case.[83]

[82][2013] VSCA 201

[83]T10

290     In Meadows v Lichmore Pty Ltd,[84] Maxwell P set out the two-step manner in which I ought to approach the task in this case:

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[84](ibid) at paragraphs [21]-[22]

291     In response to my comments, counsel for the plaintiff conceded “what we are dealing with now, more currently is more a generalised pain type syndrome.” If so, “then it has a physical origin rather than an emotional or psychiatric origin as encapsulated by paragraph (c)”.[85]

[85]T86

292     Whilst counsel for the plaintiff agreed there was no medical support for that proposition, it was submitted, “a fair reading of the medical material points to the origin of the plaintiff’s condition being physical rather than emotional or psychiatric”.[86]

[86]T85

293     Counsel for the defendant agreed that over time, the plaintiff’s right shoulder condition has become an unspecified pain syndrome, as Mr Powell diagnosed; however, it was submitted that syndrome does not have a physical origin.[87]  It was properly assessed under limb (c) at best and was not organic in nature.[88]

[87]T76

[88]T75

294     In support of this submission, counsel for the defendant also relied on Mr William’s view in April 2014 that the most significant contribution to the plaintiff’s condition was an adjustment disorder and Dr Thomas’ comment following examination in December 2017 that the plaintiff had significant emotional distress and had required quite significant psychological support.[89]

[89]T102

295     In my view, on any reading, Mr Powells’ diagnosis of an unspecified pain syndrome is not one which has an organic basis.  His examination findings and his comments in relation thereto were consistent with a significant element of functional overlay as he noted. 

296     Further, Mr Williams comments albeit in 2014 and in particular Dr Thomas’ comments on recent examination in late 2017 together with Dr Allen’s various reports where he noted the plaintiff is suffering from depression, raise significant psychological factors as impacting on the plaintiff’s shoulder condition – a condition in my view presently which cannot adequately be explained on physical grounds.

297     Accordingly, I am not satisfied the plaintiff’s present right shoulder condition has a substantial organic basis.  Further, it is very difficult on the medical evidence presently available to separate the physical contribution to the plaintiff’s pain and suffering from the psychological, in order to be able to be satisfied that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[90]

[90]Meadows v Lichmore (supra) at paragraphs [21]-[22]

298     However, if it was accepted the plaintiff’s present shoulder impairment is organically based, the plaintiff must also establish that her right shoulder condition presently has consequences which are serious and permanent.

Credit

299     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[91]

“… 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.”

[91](2010) 31 VR 1 at paragraph [12]

300     Counsel for the plaintiff submitted the plaintiff was not sophisticated in terms of her explanations and offered of candid and frank explanation as to what was occurring when she saw Mr Powell.[92]

[92]T98

301     Whilst the plaintiff was a generally truthful witness, I had some difficulty with her evidence as to the severity or otherwise of any ongoing back complaints, only making very brief reference to a back injury in 2012 in her first affidavit, and minimising any ongoing back problems in the witness box whilst having made significant complaints in relation thereto to examiners such as Mr Kossmann as recently as October last year.

302     Further, the plaintiff’s affidavits were silent about the significant problems she has had with fibromyalgia which was first diagnosed in 2015.

303     Any problems the plaintiff now has with her back or related to fibromyalgia are also relevant when considering the role played by her right shoulder injury in her current presentation.[93]   

[93]See Peak Engineering & Anor v McKenzie [2014] VSCA 67

Pain

304     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[94]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

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

[94](supra) at paragraph [11]

305     The plaintiff deposed in January 2018 that she now has difficulty with both shoulders.  She regards her left shoulder problem as flowing from overuse of her left arm to compensate for her right shoulder injury.  However, the left shoulder is not as big a problem as the right. 

306     Whilst the plaintiff has reported her left shoulder being less painful, it is certainly stiffer and weaker than the right.  Her left shoulder feels like it is frozen and when she lifts it up, she experiences terrible pain as if the shoulder has  caught.[95]

[95]T50

307     When seen by Dr Powell in June 2017, the plaintiff described similar symptoms in both shoulders.  In December 2017, she told Dr Thomas that the right shoulder was worse but the left was painful.  He found however the left was worse and clinically frozen. 

308     In the witness box, the plaintiff explained that her pain is in the front of her right shoulder and can actually travel down to above her elbow at the end of her bicep.  She could experience pain around the back of her shoulder if she tried to lift anything.[96]

[96]T18

309     Whilst the plaintiff has generally told doctors her pain is in a similar area to that demonstrated in the witness box, she told Dr Powell in June 2017 of ongoing pain that would radiate down the back of her shoulder and down the front of her arm to her wrist.[97]

[97]T75

310     Whilst there is still some restriction in right shoulder movement, the plaintiff agreed she had reported it had improved significantly as Dr Thomas reported and found on examination in December last year.[98]

[98]As noted by Dr Thomas in December 2017

Other consequences  

311     Counsel for the plaintiff submitted the plaintiff had satisfied the statutory definition of serious in terms of pain and suffering.[99]

[99]T99

312     Whilst the plaintiff had acknowledged some improvement in her right shoulder condition, nevertheless, it was submitted, even in an improved state in the context of the prevailing radiology and in the context of what she has described  as her ongoing pain and problems of movement “being notable consequences to activities of daily living.”[100]

[100]T92

313     Reliance was placed on the plaintiff’s experience of pain, the need for treatment and the various consequences described by her in her first affidavit in relation to work, gardening, housework, and furniture restoration, home renovation, helping her aged parents, sleep, and her sexual relationship. 

314     Counsel for the defendant submitted the affidavit was devoid of consequences and devoid of treatment; two important indicia when considering pain and suffering.[101] 

[101]See Sabo v George Weston Foods [2009] VSCA 242 at paragraph [73], which approved Transport Accident Commission & O’Dea v Dennis (1998) 1 VR 702; T71

315     “Whilst [the] complaint of pain, even repeated many times, does not establish the veracity of the complaint”,[102] counsel for the defendant also submitted further indicia of seriousness were required, such as treatment.[103]

[102]per Ross AJA in Tatiara Meat Company v Kelso [2010] VSCA 12 at paragraph [46]

[103]T72

316     There is no current physiotherapy for the right shoulder or investigations thereof, the last being in April 2015.[104] 

[104]T73

317     Whilst right shoulder surgery was suggested by Mr Plank in 2014, the plaintiff decided not to go ahead with that procedure, with Mr Plank later telling her that her right shoulder would probably get better itself.[105]  

[105]T53

Unrelated medical conditions

318     In Peak Engineering & Anor v McKenzie,[106] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[106]Supra

319     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ...  at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[107]

[107]At 1

320     The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the knee (non compensable injury) injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[108]

[108]At 2

321     As counsel for the defendant submitted, the consequences described by the plaintiff are referrable not only to her right shoulder but also referrable to her back.  In cross examination, the plaintiff agreed she had not played any tennis to badminton after the back injury. She also agreed scrubbing, vacuuming and hanging out the washing and other domestic tasks and personal hygiene tasks were compromised by her back injury.[109]

[109]T70

322     In a number of medical reports which mention both the plaintiff’s right shoulder and back problems, it is unclear for which condition the medication is taken.  Examiners such as Dr Croyle in April 2017 noted medication was taken for back pain and made no mention of it being taken for right shoulder pain. Mr Kossmann simply noted the plaintiff was taking Panadol Osteo when needed.

323     Further, until he was specifically asked to direct his comments to the plaintiff’s right shoulder, in his two examinations, Mr Kossmann examined many parts of the plaintiff’s body and she complained to him of pain in the back and both shoulders.[110]

[110]T77

324     Significantly, in October 2017, when Mr Kossmann saw the plaintiff, she was still complaining of ongoing lumbar spine.  He then thought the prognosis regarding her lumbar spine was guarded and that she may require further conservative treatment.[111]

[111]T77

325     I accept as counsel for the defendant submitted, the only evidence as to a complete or substantial resolution of the plaintiff’s back condition post gastric surgery is her evidence itself.[112]

[112]T82

326     In addition to the plaintiff’s back complaints, counsel for the defendant relied on the numerous reference to the plaintiff’s problems with fibromyalgia since it was diagnosed in 2015.

327     Reliance was placed on the superannuation claim form completed by Dr Allen in April 2017 did not include a right shoulder complaint but did include fibromyalgia and chronic back pain when describing the plaintiff’s primary and secondary conditions.

328     Further, rheumatologists, Dr Griffiths and Dr Croyle, both diagnosed fibromyalgia and the plaintiff agreed that they accurately reported the multiple sites of pain of which she complained on examination. 

329     When the plaintiff saw Dr Croyle in April 2017, fibromyalgia was ongoing and I accept the submission on the defendant’s behalf that there was no objective evidence that this condition had since resolved.[113]

[113]T81

330     Whilst some of Dr Allen’s certificates in support of the plaintiff’s superannuation claim refer to the right shoulder,[114] they also contained references to fibromyalgia and depression.[115]

[114]T88

[115]T100

331     In his most recent report of December 2017, Dr Allen wanted more information before he could comment on the cause of the plaintiff’s current work incapacity.[116]

[116]T80

332     Further, Dr Thomas thought the plaintiff certainly met the criteria for fibromyalgia on examination in December last year.

333     Counsel for the plaintiff conceded that the plaintiff’s other health problems had not completely cleared following gastric surgery on a fair reading of the material, despite the evidence of the plaintiff, but it was submitted she had made appropriate concessions in this regard.  It was submitted, in terms of the overall clinical picture, her right shoulder condition was still a condition that was uppermost in the plaintiff’s mind and more important clinically.[117]

[117]T91

334     Whilst counsel for the plaintiff submitted he had he had taken the plaintiff through the various consequences she deposed to and she had said they were solely related to her right shoulder,[118] I expressed some doubt as to whether that in fact was the nature of her evidence.[119] 

[118]T86

[119]T87

335     In my view, the plaintiff has been unable to identify consequences properly referable to the right shoulder injury which are serious and permanent.

336        Further, there is no medical evidence available that deals directly with this issue save for Mr Kossmans’ final report where he simply comments on the effect of the right shoulder injury on the plaintiff’s work capacity.  That report simply does deal with the issue raised in Peak as counsel for the plaintiff submitted.[120]

[120]T91

The left shoulder

337     Whilst it was submitted the plaintiff’s recent left shoulder problems arose as a result of over use of her left arm because of the right shoulder injury, counsel for the plaintiff conceded that he could not point to any medical linkage between the left shoulder problems and the initial right shoulder injury.[121]

[121]T95

338     Counsel for the defendant submitted there no temporal connection between the left shoulder and the right shoulder injury.[122] 

[122]T84

339     The plaintiff has described the onset of left shoulder pain in late 2016, just before investigations of that shoulder were carried out.  There is no evidence of any particular activity that caused this problem, just a matter of self-diagnosis.[123]

[123]T78

340     Dr Allen in his most recent report does not connect the left shoulder with the right shoulder injury. 

341     Mr Kossmann said the left shoulder restriction is for an unclear reason and does not say it is from overuse.[124]

[124]T78

342     Whilst these applications are not trial by doctor,[125] I am not satisfied there is any link between the plaintiff’s left shoulder problems and the incident injury, given the very recent onset of this problem, particularly in circumstances where fibromyalgia has been diagnosed.

[125]Grech v Orica Australia Pty Ltd & Anor (supra) at paragraph [35]; Jayatilake v Toyota Motor Corporation Australia Ltd (supra) at paragraph [17]

343     Taking into account all the evidence, I am not satisfied any consequences referable to an organically based right shoulder injury alone meet the statutory test of seriousness.

344     Accordingly, the application is dismissed.

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