Broderick, Felicity Jane v Warrnambool Cheese and Butter
[2009] VCC 1574
•8 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-08-04451
| FELICITY JANE BRODERICK | Plaintiff |
| v | |
| WARRNAMBOOL CHEESE & BUTTER FACTORY | First Defendant |
| and | |
| CGU WORKERS COMPENSATION | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 25 & 26 November 2009 |
| DATE OF JUDGMENT: | 8 December 2009 |
| CASE MAY BE CITED AS: | Broderick, Felicity Jane v Warrnambool Cheese & Butter Factory & CGU Workers Compensation |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1574 |
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application – Rotator Cuff Injury – subsequent development of chronic pain syndrome – failure of the Plaintiff to establish a serious injury that was physically based – application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. Bird | Stringer Clark |
| For the Defendants | Mr P. Scanlon QC with | Lander & Rogers |
| Mr P. Jens | ||
| HIS HONOUR: |
1 This is an application which relies on part (a) of the definition of “serious injury” in sub-s.(37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is, permanent serious impairment or loss of a body function.
2 The body function relied upon is the right shoulder.
3 The claim by the plaintiff instituted by originating motion seeks leave from the Court pursuant to sub-s.(16)(b) of s.134AB of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity. The particulars of injury pleaded as at 25 August 2009 are:
• injury to the right shoulder involving deformity/tear to the right supraspinatus tendon; • tear to the right infraspinatus tendon; • right rotator cuff injury with subacromial bursitis; • adhesive capsulitis; • right shoulder impingement;
• muscle wasting to right trapezius; • pain and restricted movement of the right shoulder; • painful neck, back and right shoulder; • headaches;
• anxiety.
4 Mr Bird of counsel appeared on behalf of the plaintiff. Mr P. Scanlon QC with Mr P. Jens of counsel appeared on behalf of the defendants.
5 The following evidence was adduced during the hearing:
• the plaintiff swore two affidavits and was cross-examined. The plaintiff’s first affidavit was sworn on 15 April 2008. The second affidavit was sworn 28 August 2009; • the plaintiff tendered the following evidence – the Plaintiff’s Court Book (“PCB”) pp.1-119 inclusive; • the defendants tendered the following evidence – the Defendants’ Court Book (“DCB”) pp. (97-104) and (115-134) both inclusive. 6 In giving consideration to this application I have considered all of the evidence adduced by the respective parties.
7 The plaintiff is 32 years of age. She was born in Warrnambool on 11 June 1977. She is engaged to be married and lives with her fiancée. She was educated at Warrnambool College and completed Year in 1994. After leaving school she had a number of jobs. She worked as a pharmacy assistant for one month then worked in Landcare as part of a LEAP project for approximately six months, then as a shop assistant at Darrell Lea for about 12 months and then for four years she worked as a factory hand and later as a herd tester for three months. She commenced work with the firstnamed defendant in 2003 and was made redundant in approximately October 2008. There was a period during 2002 where the plaintiff had a break from work for approximately six months where she left to live in Canberra to care for a dying uncle.
8 The plaintiff’s claim is that she was injured at work on 23 May 2006. During the course of her work on that day she was working in the frozen cream section of the defendant’s factory. She had spent some time working in the butter department of the defendant’s factory prior to this where she was required to constantly lift boxes weighing between 15 and 25 kilograms.
9 On 23 May 2006 whilst working in the frozen cream department with other workers, the plaintiff was lifting boxes of frozen cream which weighed approximately 20 kilograms from a conveyor belt. This meant that the plaintiff was required to repetitively lift boxes so as to keep pace with the conveyor belt. About six hours into an eleven hour shift the plaintiff told her supervisor that her right shoulder was “really hurting”. She continued to work. By the end of her shift she claims that she struggled to move her right arm at all and she was crying in pain. She struggled to drive home from the shift and claims to have actually stopped on the highway a number of times. She vomited on the way home. She showered and took some painkillers and went to bed and had a broken night’s sleep that night because of the pain. The next day, although she was still hurting from the events of the day before, she went to work and tried a lighter job filling out labels but was struggling to write, she was in so much pain in her right shoulder. She reported her problems to the supervisor. She made an official report about the injury and went to the Warrnambool and District Base Hospital.
10 Although the plaintiff originally complained about pain in her right shoulder, she also makes it clear, in paragraph 15 of her first affidavit, that she also had pain in her neck, shoulder and back areas. At the time of swearing that affidavit she complained of significant aching and persistent pain in her right shoulder, neck area and back as a result of what happened at her employment. She says that the pain is present each day and at night and is more aggressive during colder weather. She described the pain as being capable of flaring up for a couple of hours daily.
11 The plaintiff was off work from the time of the injury in May 2006 until she resumed on light office duties on 12 June 2007. She was therefore absent from work for a little over one year. Her light duties job involved her archiving and scanning documents with a scanner and data entry into a computer. She found that she could do the work that involved entering numbers only but not words. The only lifting she was required to do was the equivalent of lifting a lever arch binder which she was able to do with her left arm. She worked six and a half hour shifts four days a week on light duties. During the months of October, November and December in 2006 her hours per week on light duties were reduced to approximately 20 hours per week. On light duties the plaintiff earned $576.40. Before she was injured the plaintiff worked as a casual worker and worked between 24 and 40 hours per week.
12 Having resumed her employment on light duties in June 2007 the plaintiff says that her condition gradually became worse and she was forced to stop working again on 21 January 2008.
13 The plaintiff eventually returned to further work on light duties which she says that she was able to perform with “some difficulty”. In her second affidavit she makes it clear that she was told by management with the defendant that there were no more light duties available for her. She was told “it was obvious that my shoulder had not improved and they couldn’t see any ending to my injury”. In October 2008 she was retrenched and has not worked since that time.
14 Prior to the termination of her employment the plaintiff had been attending rehabilitation consultants named “WorkAble”. That organisation arranged for her to attend courses which she completed obtaining certificates in business and information technology. She says that she enjoyed the courses and in evidence before me said that she hoped to one day train to be an accountant.
15 In her first affidavit the plaintiff gives a history of her background related to non-work activities. At school she claims to have been a reasonably good athlete. She participated in taekwondo up until 1992. In the 12 months leading up to the injury she used to swim regularly (twice per week) and she would walk regularly with a friend. She claims to be no longer able to do these activities.
16 In her first affidavit the plaintiff claims to regularly ride a pushbike but is now no longer able to do so. Because she has been unable to exercise she has now put on a lot of weight which she estimates at about 20 kilograms which has affected her self-esteem. The plaintiff says that she is coping with housework at home and has learned to be far more left arm dominant. She used to enjoy mowing the lawns regularly and she continues to do so but this places a lot of pressure on her left arm. At the time of swearing her first affidavit she had ceased this activity. The hard household chores she leaves to her fiancée. She spends a lot of time watching television and playing on a computer. She does do some grocery shopping but usually waits for her fiancée to assist her with this. Basic care, for example, having a shower and washing her hair is difficult and she says that she frequently gets rashes under her right armpit. She claims that her intimacy with her fiancée has been restricted because of the injury.
17 In her second affidavit the plaintiff says:
“I have pain all the time. It is always there. It fluctuates. At a base level the pain is around two or three out of a ten. Several times a month, however, when I have a flare-up of shoulder pain, it can get eight or ten out ten when I am giddy, nauseas and I throw up. As an example of this sought of pain, a short time ago I was having trouble turning the window handle in the car. The handle was a revolving window handle and I found one day when I was trying to wind the window down that the pain in my shoulder suddenly became excruciating. I still have trouble sleeping. I wake in pain every night after about two hours sleep. Sometimes I get back to sleep. Other nights I have to wait until I am absolutely exhausted before I get to sleep. I cannot remember the last time that I slept through the night. My sleeping habits are also erratic. I recently woke at three o’clock in pain and I could not get back to sleep until dawn when I was exhausted.”[1]
[1] PCB 20
18 The plaintiff goes on in her second affidavit to say that she can no longer run because the jarring hurts her shoulder, she can no longer swim freestyle and has not been able to go to the Warrnambool pool, she cannot ride her bike because of pressure on her shoulder, she can only do her housework very slowly and finds it difficult to do the hard things like cleaning the bathroom, shower or toilet which is done by her fiancé. She says that she is troubled doing things like showering, washing her hair, cleaning her teeth, personal hygiene, cutting up hard vegetables such as pumpkin and carrots, dressing, undoing jars and bottles. She says that every day her right shoulder and consequently her right arm is becoming less mobile.
The Statutory Scheme
19. The application relies upon the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
20. The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[2]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. The proper identification of pain and suffering attributable to impairment which is physical or physiological in origin requires that any psychological or psychiatric overlay be stripped aside.[4]
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined in section 5 of the Act to mean “employment in work for which the worker is currently suited (whether or not that work is available) etc etc”.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.[5]
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.6
[2] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11[3] Barwon Spinners, at paragraph 33[4] Barwon Spinners at paragraph 117[5] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833,
21 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Evidence of medical treatment and other doctors
22 The plaintiff has been treated by a general practitioner, Dr Alan Baldam, a practitioner in Warrnambool. Her saw her for the first time on 31 May 2006.7 He arranged x-rays of the right shoulder which showed no abnormality. The report of a subsequent ultra sound said:
“There is evidence suggesting a very mild insertional tear of the supraspinatus with ongoing bursitis and mild shoulder impingement. Cortico steroid injection may be more helpful.”8
23 The plaintiff told Dr Baldam that she had been to the Accident and Emergency
per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527,
per Judge Ross.
6 (1994) 1 VR 436
PCB 27
PCB 26
Department of the Warrnambool Hospital on 24 May with her shoulder injury and had been issued with a WorkCover certificate to be off work until 31 May 2006. When Dr Baldam first examined the plaintiff she was in what he describes as “very significant pain”. Initial treatment consisted of aggressively resting the shoulder and anti-inflammatory medication. He reviewed the plaintiff on 5 June 2006 where she was again very tender and all movements were painful. Dr Baldam said that he was concerned about lack of resolution of the injury and considered the possibility of this becoming a “frozen shoulder”. He organised an ultrasound and x-ray. In his report of 27 June 2007 Dr Baldam concludes:
“Felicity’s shoulder has remained static for many months. In October 2006 she was referred to Mr Arpee Sundaram, orthopaedic surgeon in Warrnambool and later to Dr Daniel Lewis, rheumatologist in Melbourne. That last consultation resulted in a recommendation for inpatient rehabilitation funded under WorkCover. I requested WorkCover to fund that rehabilitation program on 4 May 2007 but to date have not heard that it has been agreed to proceed. Felicity continues to have a significant disability regarding her right shoulder and is not capable of carrying on her pre-injury employment. There is some prospect of a security guard’s job with her original employer. Felicity now has a very significant chronic right shoulder problem. We await developments regarding inpatient rehabilitation but it is not likely that her shoulder will return to normal in the foreseeable future.”[9]
[9] PCB 28
24 Dr Baldam provided a further report of his continuing treatment of the plaintiff on 27 January of this year.[10] He noted that the plaintiff’s shoulder had not significantly improved:
[10] PCB 31
“By September ’07 Felicity had a job involving little more than scanning documents. Despite this the pain continued. Indeed throughout, whenever I have examined her she seems to have virtually global pain, especially over the muscle supraspinatus and front of the shoulder. There is rarely any significant movement possible and even when there is slight movement possible it quickly becomes painful. Felicity has at times needed very significant and painful painkillers including Endone and Morphine patches.”
25 Dr Baldam does not suggest that the plaintiff is malingering or functional in any way. Rather he suggests that the plaintiff is entirely genuine. At the conclusion of his report, in January of this year, he concluded:
“I made a clinical note on 20 February 2008 that Felicity was so frustrated with the lack of progress and chronic pain that she wished her arm could be cut off. Further investigation in February 2008 with x-ray and ultrasound were disappointing. For example, the always tender supraspinatus tendon could not be identified on ultrasound et cetera such that a recommendation for MRI scan was given by the consultant radiologist. That scan eventually happened on 19 May 2008. It particularly suggested a significant acromioclavicular joint problem and recommended steroid injection into that joint. Given the severe nature of the shoulder problem, this recommendation was pursued. That shoulder injection occurred on June 3 2008 but made little difference. The Epworth Rehabilitation Program started in late September 2008 but so far has made little functional difference with Felicity’s pain levels being much the same as before. Felicity is not able to work currently due to her chronic shoulder problem.”[11]
26. A further ultra sound carried out on 25 February 2008 showed:
“No bony abnormality detected. The glenohumeral joint appears normal. There is no soft tissue calcification visible. Unfortunately Felicity was not able to mobilise her shoulder at all and this combined with large body habitus has given rise to basically an undiagnostic ultra sound scan. I could not identify the supraspinatus tendon but it is not clear whether this is resulting from inability to access the tendon due to lack of movement or whether the tendon may be absent. The infra spinatus tendon appeared normal. The biceps tendon is intact. The subscapulous tendon could not really be well demonstrated.”[12]
27. Dr Baldam continues to be supportive of the plaintiff. In a report furnished on 14 September 2009[13] Dr Baldam says:
“To answer your question specifically, Felicity’s present condition is much as it was before: she continues with chronic severe shoulder pain with almost global tenderness and minimal movement on examination. Essentially any use of that shoulder causes an exacerbation of her pain. You might recall that she had some very light duties previously that did involve some minimal shoulder use. Unfortunately, that causes significant exacerbation of her pain. Given this Felicity would have to have a job involving essentially no use of the affected shoulder. This severely limits her employability, as does the constant pain. You ask as to whether this will be a permanent disability. To some extent this depends on the definition of permanent. This disability certainly is not for the short or medium term as we have already exceeded those timescales. I can say that this looks to be a long-term disability but just how this will be in the distance future I am uncertain.”
[11] PCB 32
[12] PCB 30
[13] PCB 34
28 The plaintiff was referred by Dr Baldam to orthopaedic surgeon Dr Sundaram and he referred the plaintiff to Dr Daniel Lewis, a rheumatologist, and he saw her for the first time on 3 April 2007. He furnished a report.[14] On examination Dr Lewis observed the plaintiff to walk with her right arm held in her jacket pocket. There was some slight wasting of the right trapezius and the right shoulder was dropped compared to the left. On active movement she had 40 degrees of active abduction and flexion and very reduced internal and external rotation. Her grip strength on the right side could not be tested because of the injury to the thumb. His opinion was:
“Ms Broderick presented with an acute soft tissue injury to the right shoulder and subsequently developed symptoms and signs consistent with adhesive capsulitis. The treatment she has received is detailed above. At the time of her last examination she was not capable of undertaking her previous employment as a consequence of her arm injury.”[15]
[14] PCB 35
[15] PCB 36
29. As a result of the advice of Dr Baldam the plaintiff undertook an outpatient pain management and functional restoration program at Epworth Rehabilitation in Melbourne. A report from Dr Stephen de Graaff, dated 19 May 2009, is found at PCB 39.
30. The plaintiff was initially assessed for this program on 23 September 2008.[16] A report dated 23 September 2008 from Dr de Graaff provides the following opinion:
“Clearly Felicity has a chronic pain syndrome involving her right shoulder. There is probably an element of impingement syndrome, as well as adhesive capsulitis associated with restriction of range of motion, but the initial problem is probably related to the infraspinartis tear. This now has marked functional implications at a personal, domestic and vocational level. She has not worked now for over two years. She is adverse to medication due to issues in the past within the family. Given the above, she is an excellent candidate for a pain management program and she is willing to try and improve her functional lot. I would support a full pain management assessment with the suggestion of a three week intensive ambulatory program with hotel accommodation. I have tentatively booked her a review appointment on 11 November 2008 and will keep you informed of further developments.” (my underlining)
[16] PCB 41
31. The plaintiff entered a pain management program. A subsequent report, after the program was entered into, suggests that there was improvement in the plaintiff as a result of entering the program. In the reported dated 11 November 2009 Mr de Graaff says, inter alia:
“Ms Broderick commenced the pain management program at Epworth Rehabilitation Camberwell on 25 November 2008. The main focus of the program was to maximise functional capacity in order to commence vocational retraining/job seeking at the completion of the program, to independently perform personal, domestic and community activities of daily living and to develop independent active self-management strategies for pain, sleep, stress and mood issues. Ms Broderick completed a three week intensive pain management program and on review on 4 February 2009 she demonstrated small but significant gains in her right upper limb function. This reinforced that an elongated therapy program, as recommended initially, would be appropriate for her.”[17]
[17] PCB 43
32. Later Mr de Graaff opines inter alia as follows:
“Ms Broderick is a 32 year old lady who presented with a fulminate pain syndrome involving her right upper limb associated with a work related injury on 23 May 2008. Her duties involved continuous twisting and lifting of 20 kilogram boxes of cream. MRI of her right shoulder in April 2008 revealed partial tear of the right distil infraspinatus muscle as well as bursal impingement. She was restricted in range of motion of her right shoulder. The pain was inhibiting her activity and impacting upon her sleep and mood. Ms Broderick has attempted to complete a multidisciplinary pain management program on an outpatient basis. The program was curtailed in intensity due to flaring up of her pain and its impact on her day to day function and ability to travel. She has been continuing with a home exercise program and has been referred on to a psychologist by her general practitioner. She is not in a fit state to return to her previous duties. The likelihood of her returning to that level of function is low given that it is now 18 months since her original injury and she continues to have considerable pain. The most appropriate route in the long-term will be job retraining. Her prognosis is guarded with respect to recovery of full function in the right upper limb.”[18]
[18] PCB 43.5
33. I referred earlier to Dr Sundaram, the orthopaedic surgeon. He saw her on 18 October 2006 after referral from Dr Baldam. Dr Sundaram provided a report.[19] He opined:
“Ms Broderick was seen by me on 18 October 2006 with a history of experiencing pain in her right shoulder in May 2006 whilst at work. The symptoms got worse the next day. She also complained of difficulty using the arm and it interfered with her sleep. The patient complained of inability to lift the arm away from her body or reach behind her back. On examination, she seemed to have generalised tenderness around the shoulder with marked restriction of rotational movement of the joint. X-rays were performed and did not show any significant pathology.”
[19] PCB 44
34. The plaintiff did attend a physiotherapist, Dr Tony Pritchard on a number of occasions after her injury. He treated her three times a week over a period of one month but was unable to provide much relief for the plaintiff.[20]
[20] PCB 47
35. The plaintiff was referred to Mr John O’Brien for medico-legal purposes. He saw the plaintiff on 7 January 2009.[21] He opined as follows:
“The finding of loss of all movements of the shoulder generally suggest glenohumeral pathology such as adhesive capsulitis. This process is generally not associated with such a diffuse area of pain or indeed the apparent sensory changes described by the patient. Indeed, I note, on the MRI there is no clearly defined, significant shoulder pathology. This indeed suggests the presence of a chronic pain syndrome.
The history would certainly suggest that employment is a significant contributing factor. I have no doubt the clinical condition is stable. The patient reports there is absolutely no change in the nature and distribution of pain, and the degree of stiffness. In fact this has clearly failed to respond to extensive conservative treatment. It certainly appears appropriate that the patient continue the pain management program, despite the fact that the response to date does not appear to have been very positive. Indeed, the prognosis here does appear poor. This patient presents describing a significant disability associated with the right dominant shoulder. Indeed there appears to be no shoulder function, although the patient does describe an ability to undertake very light tasks with the right hand, such as writing. There is indeed no possibility of this patient returning to her previous employment, in fact I would suggest that an attempt at returning to light duties has failed, and given the described severity of the pain and limited function of the right dominant hand, it now appears unlikely this patient will return to any form of gainful employment. Indeed I would suggest the clinical presentation now will result in the patient being totally and permanently incapacitated. There is considerable impairment of this patient’s general domestic, social and recreational activities and I would suggest this is a permanent situation.” (my underlining)
[21] PCB 59
36. A further up to date medico-legal opinion was obtained from Mr W. Huffam[22], orthopaedic surgeon from Geelong. He examined the plaintiff on 23 July 2009 and took a history from her. On examination there was an apparent acute tenderness over the whole of the shoulder region extending almost to the midline, both back and front and up to the base of the neck and down the upper arm, and the plaintiff complained of tenderness even to very light pressure which would have applied to no pressure to any deeper structures, and light pinching of skin fold also appeared to cause an acute painful reaction. The plaintiff would allow almost no movement of the shoulder with only about 20 degrees abduction and 10 degrees flexion but movement of the elbow, wrist and fingers appeared normal. Skin colour and circulation appeared normal. Mr Huffam opined that the plaintiff suffered an injury to the rotator cuff tendons, particularly the infraspinatus of the right shoulder with subsequent development of an adhesive capsulitis or frozen shoulder but also abnormal illness behaviour so that she now had a very stiff, almost non-functional, right shoulder. He thought that the plaintiff does suffer from a quite marked physical impairment as a consequence of her injury. He opined that the plaintiff appears to have considerable pain and certainly has quite gross limitation of movement of the right shoulder. She has no capacity for employment engaged in at the time of the injury or any form of manual work requiring lifting or movement of the shoulder. He concluded:
“My conclusion is therefore that Miss Broderick did sustain acute injury to her right shoulder in the course of performing particularly heavy repetitive work on 23.5.2006. This shoulder will have been painful with painful limitation of movement following this injury however there is now evidence of abnormal behaviour with extensive tenderness which does not localise to any particular structures and gross apparent limitations of movement.
Prognosis
I would have expected considerable improvement in this lady’s shoulder with the passing of time and a gentle exercise program but considering her abnormal chronic pain behaviour her condition and symptoms may continue unless there is an alteration in this pain behaviour.”[23] (my underlining)
[22] PCB 64
[23] PCB 67-68
37. The plaintiff also relied upon a medical report obtained by the secondnamed defendant from Mr Paul Kierce, orthopaedic surgeon, who saw the client for that purpose on 14 July 2006 which was only about seven weeks after the accident occurred.[24] Mr Kierce found on examination that the plaintiff was tender over the middle of the right rotator cuff but was also very tender over the acromion on its superior aspect. She had a very limited range of movement in the right shoulder girdle, being able to abduct through 80 degrees only, adduct through 20 degrees, flex through 80 degrees and extend through 15 degrees, with an external rotational movement of 65 degrees and internal rotation through 90 degrees. She had a positive impingement sign. In answer to specific questions put to him, Mr Kierce opined:
“What is the worker’s current condition and what are the subjective and objective findings?---I believe the worker is suffering from a minor tear of the right supraspinatus tendon and associated subacromial bursitis. The area of tenderness in the right shoulder girdle is consistent with this diagnosis, together with the limited range of movement and the objective finding of the ultrasound supports the diagnosis.
Is the worker’s current condition resultant from an/or materially contributed to by an injury arising out of the course of employment?---It is entirely consistent that the worker could have strained the right supraspinatus tendon in the course of the repetitive lifting of heavy boxes, especially when she was having to lift them above shoulder height.
What is the prognosis?---The worker will have a definite long- term weakness in the right rotator cuff so that she should be permanently removed from work which involves the use of her arms about shoulder level. Further, she should not be involved in lifting weights greater than five kilograms at all in my opinion.
Does the worker have a capacity to undertake pre-injury employment?---No, the worker does not have a capacity to undertake pre-injury employment.
If the worker does not have a capacity for pre-injury employment, does she have the capacity for suitable employment and what restrictions would need to be observed?---I believe that the worker would be fit for suitable employment which did not involve the lifting of weights greater than five kilograms, the use of her arms above shoulder level or the use of heavy jarring implements such as picks, shovels and crowbars. I think it would be absolutely unrealistic for her to attempt pre-injury employment. I believe she should, initially, be involved in sedentary clerical-type work on return to work, but she needs to have had at least one steroid injection into the subacromial space prior to that.”
[24] PCB 70
38. The defendant also had the plaintiff medically examined by Mr Hugh Weaver, orthopaedic specialist, in December 2006. He saw the plaintiff at his rooms on 13 December 2006.[25] The plaintiff relied upon his report and, in particular, his opinion which inter alia said:
“Even prior to having sighted this ultrasound report, it would have been my assessment that Ms Broderick’s diagnosis is of a fairly subtle tendonopathy or similar problem affecting the rotator cuff of the right shoulder. Whether or not a formal tear is present, I think that she would have little difficulty in arguing that her problem was initiated as a consequence of employment activities which she had been performing in her usual workplace back in May this year.”[26]
[25] PCB 78
[26] PCB 80
39. Mr Weaver went on to assess the plaintiff’s impairment at that time and said:
“Although it is clearly a bit premature at this stage to talk in terms of permanent impairment, this women is certainly presenting currently with evidence of a quite substantial rotator cuff problem, something which probably constitutes a significant partial impairment of upper limb function for industrial purposes. It is a bit too soon to ascertain whether or not the situation can be improved by the undertaking of surgical treatment, although I suspect that this is probably the case.”[27]
[27] PCB 81
40. Finally, the second named the defendant had the plaintiff medically examined in August 2007 by Mr Brendan Dooley, orthopaedic surgeon.[28] He saw the plaintiff on 27 September 2007. It was Mr Dooley’s opinion that:
“Ms Broderick as a result of repetitive lifting during the course of her work on 23 May 2006 suffered an acute soft tissue injury to her right shoulder and subsequently developed symptoms and signs consistent with a frozen shoulder (adhesive capsulitis); she gradually improved naturally; the prognosis is reasonably good for full recovery in the future providing she avoids heavy repetitive work involving the use of her right arm and shoulder, particularly at or above shoulder level; she is recovering naturally and surgery is not indicated.[29]
[28] PCB 83
[29] PCB 84
41. Mr Dooley added that the plaintiff suffered from adhesive capsulitis of the right shoulder complicating a soft tissue injury to the rotator cuff of the right shoulder and subacromial bursitis. In answer to a question as to whether not she would suffer from permanent impairment he said that the plaintiff would so suffer.
42. The defendant had the plaintiff medically assessed by Carol Newlands, a consultant forensic psychiatrist, who saw the plaintiff on 7 May of this year.[30] No doubt this was in response to a number of the doctors who had seen the plaintiff for medico-legal purposes commenting that the plaintiff’s condition is complicated by the fact that she suffers from a chronic pain syndrome. Dr Newlands opined inter alia that the plaintiff was not incapacitated for work from a psychiatric perspective.[31]
[30] PCB 99
[31] PCB 109
43. The defendant also arranged to have the plaintiff medically examined by Dr Chris Baker who describes himself as a specialist in occupational medicine. Dr Baker saw the plaintiff for this purpose on 22 April 2009.[32] His examination of the plaintiff was very thorough. In his report he describes his first meeting with the plaintiff and his examination:
“Ms Broderick got up from her seat in the waiting room, wearing a thick windcheater with the right hand in the pocket. When I greeted her I offered my hand, and she declined to shake it with her right hand. She noted that she had driven up from Warrnambool the day before and had stayed overnight in Melbourne. During the interview she sat with her right hand in the pocket of her jacket. She noted that she had a full range of movement in the hand, wrist and forearm but needed to support the arm or else she would get more pain in the right shoulder. … she had a full range of movement of the elbow, wrist and joints of the hand on the right side, however, attempts at active movement at the shoulder were very limited. She could only manage about 20 degree inflection and 20 degree in abduction with complaints of pain. Similarly, passive movements were resisted with complaints of pain. When standing erect, on measurement at equidistant points around the upper arm it was noted that the right arm was larger (34 centimetres) compared to the left (33 centimetres) which would be expected in a right hand dominant person. There was no evidence of muscle wasting. There was no evidence of muscle wasting of the right shoulder on visual inspection.”[33]
[32] PCB 110
[33] PCB 112-113
44. Mr Baker opined that there is a “significant psychosocial component” to the plaintiff’s presentation and he considered that she was exhibiting what he described as “abnormal illness behaviour”[34].
[34] PCB 114
45. Later, I shall discuss some video evidence led by the defendants. One of those videos depicted the plaintiff, over a period of approximately 36 minutes, when she attended her sister’s wedding on 17 January 2009. The defendant referred that video, which I admitted into evidence, to Dr Baker for comment. In a report dated 7 May 2009 he said:
“I observed the surveillance DVD, lasting about 35 minutes. It was noted that I positively identified the claimant in the video. I note that she was wearing a sleeveless dress with shoulder straps and there was no evidence of muscle wasting or deformity. She moved her right arm freely, repeatedly flicking a part of her dress around like a scarf to brush away flies. She was able to raise her arm up to hold a camera at eye level and also to put her sunglasses on with her right hand. She raised her shoulder to 90 degrees and was noted to extend the arm about 20 degrees at the shoulder. Throughout these movements there was no evidence of discomfort and she appeared cheerful, talking to other guests at the wedding party. I note this event was on 17 January 2009 however, on the surveillance of 23 February 2009 she wore a windcheater similar to the one which I saw her in at the time of my assessment and her right hand in the pocket of the coat at all time and slowly undertook activities with her left hand. Her presentation was completely different from her presentation at the wedding. I would therefore conclude that she is exhibiting abnormal illness behaviour and from the freedom of her movements at the wedding party, it confirms that she has the capacity for employment.”[35]
[35] PCB 118
46. The defendant arranged for a follow-up assessment of the plaintiff by Dr Paul Kierce, who saw the plaintiff for that purpose on 9 November 2009.[36] He had available to him reports of an ultrasound taken on 26 June 2006 (one month after the accident) and an MRI undertaken on the right shoulder on 20 April 2008. In summary Mr Kierce concluded:
“Felicity Broderick is suffering from a chronic pain syndrome which has resulted in global numbness and weakness of the whole of the right upper limb with extreme limitation of right shoulder movements. As a result of her chronic pain syndrome she has in all likelihood developed some adhesive capsulitis of the right shoulder. I would not recommend any further attempts at treatment but overall the degree of pathology is not consistent with her perceived disability. I note that she is taking only occasional Nurofen which suggests that her pain is not all that severe. Since last seen she has an even greater restriction of movement more widespread pain and more generalised tenderness on palpation. She needs appropriate assistance from the psychiatrist or psychologist in my opinion.”[37] (my underlining)
[36] DCB 97
[37] PCB 98
Other evidence
47. The plaintiff was extensively cross-examined by Mr Scanlon. She agreed that in the past that she had worked for a short time as a pharmacy assistant and as a shop assistant at Darrell Lea and she had also worked testing milk. She said that she had not attempted to obtain work and that she had not made any enquiries to get work. She said that she had searched at Centrelink for the types of work that she could do but she had made no enquiries for potential employment. The plaintiff agreed that she used a computer regularly and was very familiar with how a computer works and she said that she had good computer skills. She said when using a computer she could use both hands most of the time and could spend up to two hours at a computer. With some reservation the plaintiff agreed that she could answer the telephone and take messages and do general reception work for a professional person. But she thought that doing such work on a regular and repetitive basis would be difficult for her.
48. The plaintiff agreed that she could drive a vehicle most of the time and that she was able to drive on a daily basis. She said that she was able to wash her hair using her left hand. She said that every aspect of her day to day living had been affected by the injury to her shoulder. In the witness box she said that she had no ability to move her right arm on the day that she was giving her evidence. When asked to demonstrate how far she could move the arm she moved it only slightly forward as she sat in the witness box. “I can move a small fraction but apart form that I can't move it.” The plaintiff said that in the last few days prior to giving evidence with significant changes in the weather it appeared to have made her right arm worse. The plaintiff said, in answer to direct questions that she was unable to mop or vacuum using her right arm, she could not cut vegetables with her right arm and she cannot move her right arm at bench level. She said that her fiancé did most of the cooking and she would be incapable of putting things into an oven. She said that she could not sweep or scrub a pot with her right arm. She could hold an empty kettle in her right arm depending upon how heavy it was. She said that she could not reach into a refrigerator to retrieve a carton of milk or reach into a cupboard to pick up a plate using her right arm. She said that this had been the case since about August 2006.
49. The plaintiff was questioned extensively about the time that she spends on the computer. She confessed that she was what she described as “addicted” to “Facebook” an internet social site and that she spends time on the computer communicating with friends and playing games linked with Facebook.
50. The plaintiff was shown a video of her taken on 30 December 2008 which I admitted into evidence as Exhibit 1. That video depicted the plaintiff with her fiancé at a service station where they had manoeuvred the plaintiff’s car to check the tyres. The plaintiff is depicted moving around the car freely checking the air in the tyres using the air hose. She appeared on the video to be doing this using her left hand. In her evidence in the court she said that she could not reach behind to hitch her pants up from behind her back, yet when the video is viewed the plaintiff can be seen hitching her jeans up from behind on two occasions, using both hands and arms freely. She can also be seen screwing a valve cap back onto the tyre using her right hand and wrapping the air hose around the appropriate bracket using her both her right and left hands and arms including lifting her right arm up at or above shoulder height . In the latter part of the video the plaintiff and her fiancé are attending what appears to be a Bunnings store on the same date, 30 December 2008, at which time she does appear to be favouring her left hand, and at 12.39 to 12.47 in the same video the plaintiff is seen walking with her right hand in the pocket of her windcheater.
51. The plaintiff was further cross-examined about a second video which I admitted into evidence as Exhibit 2. I have already referred to that video when discussing the evidence of Dr Baker. Exhibit 2 is a film taken of the plaintiff on 17 January 2009 at which time she was attending the wedding of her sister. The plaintiff is shown to be moving around the outside of a church flicking flies away repetitively using her left hand and right hand. She is also depicted taking photos with what looks to be a reasonably heavy camera and holding the camera up to her eye level with her right hand. Whilst taking photos of some young boys she reaches out with her right arm to adjust the boys’ clothing. At another stage of the video the plaintiff can be seen adjusting the tie of a male person and moving freely around the crowd taking photographs, using both hands and arms, and moving in and out of the church, using the handrail on steps with her right arm outstretched up and to the side.
52. The plaintiff’s explanation for being able to move so freely on the occasion of the wedding was that she had taken four Neurofen tablets before attending the wedding and had also consumed a stubby of beer. The video evidence taken on 17 January 2009 is telling against the plaintiff’s case. A further short video, also part of Exhibit 2, taken on 23 February 2009, depicts the plaintiff moving over a short period of time with her right arm held down. In this video she appears to be doing everything with her left hand with the right arm in the pocket of her jumper. This was a very short video. The video taken on 17 January 2009 lasted some 36 minutes.
53. The plaintiff agreed that she had been medically examined for medico-legal purposes by a psychologist named Bill Radley on behalf of her solicitors. Mr Radley did not give evidence. I conclude that his report would not have assisted the plaintiff’s case.
54. The plaintiff was questioned about what treatment she was presently having. She is not having any ongoing treatment. She is taking neurofen from time to time but in her evidence she agreed that this was not for pain in her right shoulder but for headaches. She agreed that she drives the motor vehicle most days of the week, she shops on her own, can carry her purse and mobile phone in her right hand but she said she could not carry one litre of milk.
55. The plaintiff was questioned about conferring with Mr John O’Brien for medico-legal purposes on 7 January 2009. His report[38] reveals that on examination the plaintiff was barely able to move her right arm. Mr O’Brien thought at that time that the plaintiff was suffering from a chronic pain syndrome. The significance of his report is that his examination was carried out some ten days before the wedding on the 17th January 2009 at which the plaintiff is depicted in a video moving freely. The video, therefore, is the very antithesis of the plaintiff’s case. It depicts the plaintiff moving her right arm freely, without apparent limitation of movement and without apparent pain and unimpaired.
[38] PCB 61
56. The plaintiff agreed that she had earned less than $224 gross in the financial year ended 2002 but had received a Government allowance of a little over $8,000. In the financial year ended 30 June 2003 she earned less than $4,000 and she received a Government allowance of $8,500. In 2004 her gross earnings were $9,510 and in 2005 they had risen to $33,108. She said that after the accident she was off work for about 13 months and then returned to work on light duties. She performed light duties pretty well for some time but towards the end of 2007, in the months of October through to December, she said that her shoulder was feeling the worst for the work and she had some short time off work and then returned to work again in early 2008 and she worked continuously doing light duties until about October 2008 when she was made redundant.
57. In re-examination the plaintiff was asked about the telling evidence depicted in the video of 17 January 2009. The plaintiff said that she had taken neurofen and had a drink of beer prior to the wedding. She said that notwithstanding the fact that the video shows that she was apparently able to move freely and without apparent pain and was enjoying herself at the wedding she was nonetheless forced to leave the wedding early and missed out on the some of the formal parts of the evening. In the witness box she described to me how she had made the dessert for the wedding and in demonstrating the size of the cake that she had made she seemed to move her arms freely.
Conclusions
58. In his closing address, Mr Scanlon said that the plaintiff must identify the injury upon which she relies. He said that the plaintiff could not aggregate the headaches and neck pain with the impairment claimed, that of loss of use of the right shoulder. He relied upon the decision of the Court of Appeal in Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65. I agree with that submission. In arriving at my decision in this matter I have put to one side the plaintiff’s complaints of ongoing headaches or neck pain or back pain and have confined my decision to the question as to whether or not the plaintiff has demonstrated a permanent serious impairment or loss of body function of the right shoulder.
59. Mr Scanlon relies upon the decisions of the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 as authority for the proposition that the plaintiff must disentangle from the evidence the consequences of her injuries that flow from the injury to the right shoulder and those consequences that flow from the chronic pain syndrome which she appears to have developed. In this regard Mr Scanlon relies upon the evidence from Dr O’Brien, Dr Kierce, Dr Huffam, Dr Baker and Dr de Graaff, each of whom take the view that the plaintiff’s physical injury is a limited one and has been overridden by a chronic pain syndrome.
60. Mr Bird, in acknowledging that the evidence does show that the plaintiff may suffer from a chronic pain syndrome, relies upon the decision of the Court of Appeal in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, and in particular the judgment of His Honour Ashley JA at paragraphs 17 to 30 inclusive. Mr Bird conceded that there was no evidence which assisted me in disentangling the consequences flowing from the chronic pain syndrome from the consequences flowing by the physical injury to the plaintiff’s right shoulder. However, relying upon the decision in Jayatilake Mr Bird submits that “in the real world”[39] this is not a case which is capable of such disentanglement and that sub section 38(h) of section 134AB of the Act should not be read as placing an obligation on the plaintiff to do so.
[39] Jayatilake v. Toyota Motor Corporation [2008] VSCA 167 per Ashley JA at paragraph 19
61. However, as Justice Ashley made clear in Jayatilake, especially at paragraph 18 of his judgment, where a plaintiff seeks to establish that he or she has suffered a serious injury relying upon sub paragraph (a) of the definition of “serious injury” and there are psychiatric/psychological or functional consequences affecting the plaintiff, the plaintiff must nevertheless establish on all of the available evidence led that he or she suffers an impairment or loss of a body function the consequences of which, physically based, are serious in terms of pain and suffering and loss of earning capacity. In my judgment, in this proceeding the plaintiff has not established on the evidence an impairment or loss of body function which is physically based and which could be said to be very considerable and more than significant or marked.
62. The preponderance of the evidence here is that the plaintiff in May 2006 suffered from a mild rotator cuff injury to her right shoulder during the course of her employment. She may continue to suffer from some ongoing adhesive capsulitis and bursitis. However, apart from her general practitioner Dr Baldam, each of the specialist doctors that have assessed the plaintiff (including treating doctors) has concluded that she is suffering from a chronic pain syndrome to such an extent as to complain of pain and consequences far greater than could reasonably be expected from the physical injury initially suffered. The pain and suffering consequences and complaints that she makes are not what could reasonably be expected from a physical injury of the kind and dimension she has sustained. Because of that it is very difficult on the limited evidence lead to separate what consequences flow from the physical injury to the right shoulder from the consequences that flow from the functional or psychological injury that the plaintiff has developed subsequent to sustaining the physical injury. The plaintiff’s case makes no attempt at this task. In arriving at my decision I prefer the evidence of the specialist doctors, especially Dr. O’Brien, Dr. Kierce, Dr. Haffam, Dr. Baker, and Dr. de Graaf to the evidence from the general practitioner Dr. Baldam.
63. As I said earlier, subsection (38)(h) of section 134AB of the Act provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. The proper identification of pain and suffering attributable to impairment which is physical or physiological in origin requires that any psychological or psychiatric overlay be stripped aside.[40]
[40] Barwon Spinners at paragraph 117
64. In submissions Mr Bird quite frankly admitted that he had no answer to the telling evidence set out in the video taken of the plaintiff on 17 January 2009 other than to suggests that it was but one day out of the ordinary. I am cognisant of the principles discussed by the Court of Appeal in Church v Echuca Regional Health [2008] VSCA 153 when assessing the video evidence. It is but one part of the evidence in the case. However, over a lengthy period of time depicted in the video taken on 17 January 2009 the plaintiff can be seen to be moving freely with extensive use of her right arm involving the shoulder in complete contrast to the complaints she has made to the doctors and in what she said and demonstrated in evidence before me. In short, for a period of some 36 minutes she was filmed using her right arm involving the shoulder in a way that permits the conclusion that when filmed her right shoulder was unimpaired. I do not think the movement depicted of the plaintiff of 17 January 2009 can be explained only by the fact that she had taken four Neurofen tablets on the day.
63. The evidence contained in the video taken on 30 December 2008 is less telling against the plaintiff but it is further evidence suggesting the evidence she gives before me and on affidavit has to be thoroughly scrutinised.
64. The defendants had supplied the video of 17 January 2009 to the plaintiff’s solicitors before the hearing. None of the doctors relied upon by the plaintiff has been shown the video and asked to comment on it. The defendant relies upon both of the videos because each of them goes to the plaintiff’s credit. I agree that the videos, especially the one of 17 January 2009, do damage the plaintiff’s credit. But the videos also go to the question of degree of impairment and the capacity of the plaintiff to use her right arm and the range of movement in the right shoulder and arm. Both videos show that the plaintiff is most likely not suffering from permanent long-term impairment or loss of body function of the right shoulder and arm as claimed in this court.
65. I am unable to accept the plaintiff’s evidence of range of movement in the right shoulder and arm as demonstrated to me in this hearing. The two videos in my view give the lie to that evidence and I do not accept it. Nor do I accept the evidence of disability and impairment of the right arm and shoulder as deposed to by the plaintiff in her two affidavits, most especially the second one. Where she claims to have suffered consequences from her physical injury and those consequences are contradicted by the video evidence I act on the video evidence.
66. In my judgment the plaintiff did suffer an injury to her right shoulder in the form of a rotator cuff lesion and other injuries or about 23 May 2006. This is confirmed by the radiological evidence and other medical opinion which I accept. The plaintiff should have made a full recovery prior to now. Her recovery has been hampered by the development of a chronic pain syndrome. I accept the evidence that says this is the case. There is no evidence before me to assist me with disentangling the consequences that flow from the physical injury from those which flow from the chronic pain syndrome. The consequences that the plaintiff claims flow from the physical injury are out of proportion to the objective evidence of the physical injury in fact suffered by her. I accept that the complaints made by the plaintiff and her description of the consequences that she says have flowed can be attributed to the development post physical injury of a chronic pain syndrome. The evidence simply does not permit of a finding that the plaintiff presently suffers from a serious injury physically based.
67. Further, even if I am incorrect about that assessment, having regard to all of the evidence before the Court, I am not satisfied that the plaintiff has suffered a serious injury within the meaning of the Act. The evidence leads me to conclude that the consequences from the physical injury to the right shoulder are not, in my opinion, such as can be described as significant or marked or very considerable. I say this because the medical evidence of physical injury only establishes a mild rotator cuff injury from which the plaintiff should have fully recovered a long time ago and I do not accept the plaintiff’s evidence where she describes her injuries and level of pain and demonstrates the level of movement she is able to achieve in the right shoulder. I think both in her affidavit evidence and in evidence before me she has exaggerated her complaints and symptoms caused by the initial physical injury to her right shoulder and the level of impairment (if any) she presently suffers because of it.
65. I do not accept the plaintiff’s evidence on critical issues in this case unless corroborated. I note the plaintiff’s evidence is totally uncorroborated from any source. One would have thought that in an application such as this her fiancé with whom she has been living for some time would have been called to give evidence on her behalf or at least some other family members. Such evidence not having been called I conclude that the plaintiff’s fiancé and other family members could not have assisted her case.
66. Accordingly, the plaintiff’s application for leave to commence proceedings for damages for pain and suffering and loss of earnings is dismissed.
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