Broughton v Victorian WorkCover Authority
[2017] VCC 795
•23 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-06472
| JENNIFER BROUGHTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 July 2016 | |
DATE OF JUDGMENT: | 23 June 2017 | |
CASE MAY BE CITED AS: | Broughton v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 795 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left upper limb and shoulder – aggravation of pre-existing injury to the left humerus – three discrete injuries – pain and suffering only – credit
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Ryan Carlisle Thomas |
| For the Defendant | Ms M Britbart QC with Ms M Tait | Minter Ellison |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion seeking leave, pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”), to commence a proceeding against the defendant as her former employer, claiming damages for pain and suffering only.[1] The loss of body function relied upon by the plaintiff in this application is the left upper limb and shoulder.[2] The plaintiff claims that she suffered an injury to her left shoulder and arm, including an aggravation of a pre-existing fracture of the left humerus with the development of a bony spur irritating the radial nerve. The plaintiff claims that she suffered this injury on 5 August 2010 whilst lifting boxes of chilli sauce in the storeroom at the Sodexo canteen at the Esso Longford plant.
[1]Transcript (“T”) T1, Lines (“L”) 25
[2]T2, L1-7; T136
2 The plaintiff bears the onus of proof that the pain and suffering consequences of her injury are “serious” within the meaning of s134AB(38)(c) of the Act. This issue is to be determined having regard to all of the evidence.
3 To make out a “serious injury” within the meaning of s134AB(37)(a) of the Act, the plaintiff must establish, on the balance of probabilities, that she suffered a “permanent serious impairment or loss of a body function” during the course of her employment with the defendant. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked, and as being at least very considerable” within s134AB(38)(c) of the Act.
4 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of her employment, and what consequences (if any) were suffered, and continue to be suffered by her, caused by the injury claimed.
5 Ms Pilipasidis, who appeared as counsel for the plaintiff, prepared a very detailed and helpful chronology and she took me through this in detail when she opened the case. So far as the chronology is concerned, it is not in contention.
6 The legal principles applicable to such an application are also not in contention between the parties.[3]
[3]T98-99
7 The plaintiff prepared a court book which I admitted into evidence as exhibit A (“PCB”). The pages comprising that exhibit are pages 20 to 25K inclusive and pages 57 to 68 inclusive. Within the court book are three affidavits sworn by the plaintiff. The first affidavit was sworn on 29 July 2014 (first affidavit), and the second affidavit was sworn by the plaintiff on 14 June 2016 (second affidavit), and the third affidavit was sworn on 19 July 2016 (third affidavit) which was the day before the hearing of this application began. The plaintiff also exhibited a letter from the defendant’s solicitors, Minter Ellison, to the surgeon, Mr Peter Scott, dated 24 December 2015 (exhibit B).[4]
[4]T96
8 The defendant also prepared a court book which I admitted into evidence as exhibit 2 (“DCB”). The pages comprising that exhibit are pages 1 to 69 inclusive and pages 96 to 102 inclusive.
9 The plaintiff is now sixty-one years of age. She is divorced with three children. She has a long work history in various occupations and this is not in contention. The plaintiff completed Year 11 with a Leaving Certificate in 1972 from Knox Technical School, and then between 1972 and 1975, she completed her Higher School Certificate, followed by a Diploma of Food and Food Services at Emily McPherson College.
10 Between 1980 and 1984, the plaintiff worked as a lecturer in tourism and hospitality at the Community College of Central Australia, and then between 1985 and 1992, she worked as an instructor with the George Gray Centre Incorporated in adult training for intellectually disabled. Between 1992 to 1993, she worked as an instructor for the East Gippsland Community College of TAFE. Between 1993 and 1997, she was engaged in home duties. The plaintiff returned to the workforce in 1998 and between that time and 2002, she worked as a jury keeper at the Sale Courthouse, followed by four years as a VCE chief supervisor at the Board of Studies at the Gippsland Grammar School between 1998 to 2002.
11 On 29 July 2002, the plaintiff sustained an injury to her left shoulder[5] whilst working at Gippsland Grammar School. It was described as a spiral fracture of the left humerus. The plaintiff was treated conservatively but she claims to have had ongoing problems with her left shoulder. She was referred for physiotherapy treatment. She had about six months off work and continued to work at Gippsland Grammar as a home economics teacher. However, the plaintiff had ongoing problems of pain in the left shoulder. She suffered from a frozen left shoulder condition. She was referred to Mr Francis (Frank) Lyons and had a left shoulder arthroscopy for a rotator cuff decompression on 24 March 2004.
[5]PCB 21, paragraph [5]
12 The plaintiff had some time out of the workforce but returned back to work as a chef manager at Gippsland Grammar Boarding House between 2005 and 2007, and then as a voluntary tutor for isolated students, where she worked in remote parts of central Australia.
13 Between 2008 and 2009, the plaintiff worked as a TAFE instructor at Gippsland Institute of TAFE, and then around the same time, as a casual chef at the RAAF base in East Sale.
14 In 2009, the plaintiff worked as a duty manager at Tidal River store for Parks Victoria. In December 2009, the plaintiff applied for a position with a catering company, Sodexo Australia Pty Limited (“Sodexo”). She disclosed a previous left shoulder injury and was required to undergo a medical examination which was carried out by Dr Christine Martin on 10 December 2009. In her report,[6] Dr Martin noted at that time, that the plaintiff had no limitation in the left upper arm from past fractures.
[6]PCB 68
15 The plaintiff was employed by Sodexo in December 2009.[7] She commenced working at the Esso Longford plant in the kitchen on 10 December 2009. Her duties included cooking, stock control and rosters, and she worked permanent part-time. Her hours varied, as did her shifts, but the plaintiff worked up to about 35 hours a week.
[7]PCB 21, paragraph [6]
16 At the same time that the plaintiff was working for Sodexo at the Esso Longford plant, she was also working as a gaming attendant and doing bar work at the Sale RSL Club where she averaged 10 to 15 hours per week. She commenced this employment on 13 January 2010.
17 It was during the course of her employment by Sodexo on 5 August 2010 that the plaintiff claims to have injured her left shoulder, and to have suffered her serious injury. She says that she was injured in the course of lifting boxes of chilli sauce in the storeroom at the Sodexo canteen at the Esso Longford plant.[8] She claims that all of the serious injury consequences from which she says she now suffers are attributable to this workplace accident.
[8]PCB 21, paragraph [7]
18 The plaintiff returned to work on the following day, 6 August 2010.[9]
[9]PCB 22, paragraph [8]
19 On 11 August 2010, the plaintiff attended on Dr Ian Nicholson at the Sale Medical Centre. Dr Nicholson was the plaintiff’s longstanding general practitioner who had treated her previously for the fractured left humerus. He referred the plaintiff for physiotherapy and x-rays of the left humerus and the cervical spine.[10] Dr Nicholson’s notes of that visit record:
“left arm is causing her some problems.
gets paraesthesia in the left hand keeps her awake at night whole arm aches
… grip is weaker than it should be.”[11]
(sic)
[10]PCB 22, paragraph [8]
[11]DCB 45
20 The x-rays reported:
“The humeral head is enlocated. Osteophytic spur at the margins of the healed fracture line in the mid third shaft of the humerus is seen. … .”[12]
[12]PCB 32f
21 On 13 August 2010, the plaintiff consulted Dr Zaw Min Thann at the same clinic, and he certified the plaintiff fit for modified duties from 11 August to 25 August 2010, with restrictions being no lifting of heavy objects, and she was to avoid repetitive left arm movements at work.[13]
[13]PCB 22, paragraph [8]
22 The plaintiff underwent a left shoulder ultrasound which did not detect any rotator cuff tearing.
23 On 20 September 2010, the plaintiff commenced working on restricted duties for four hours per day performing office work in the Sodexo office in Sale. She submitted a WorkCover claim on 23 September 2010.[14] In that Claim Form, the plaintiff claimed that she was injured on 5 August 2010. She described her injury as “Pain, loss of use of left arm”. To the question, “What happened and how were you injured?”, the plaintiff wrote “Repetitive cutting and lifting of heavy items”. To the question, “What task/s were you doing when you were injured?”, the plaintiff wrote “Cooking - stock control”.
[14]DCB 58
24 On 15 October 2010, the defendant accepted the Claim for Compensation, and the plaintiff’s medical and like expenses were paid by the defendant.
25 On 8 December 2010, the plaintiff returned to work for Sodexo at the Esso canteen at Longford. She performed cooking and management duties which were her pre-injury duties. She says she did this with restrictions.
26 On 17 December 2010, Dr Thann certified the plaintiff as being fit to perform her pre-injury duties.[15]
[15]DCB 97
27 By February 2011, the plaintiff says she was experiencing an increase in her symptoms whilst working, as well as an increase in stress in the workplace.
28 The plaintiff underwent another ultrasound of the left shoulder on 2 February 2011 which confirmed the continuing presence of the spur over the previous fracture site.[16]
[16]PCB 23, paragraph [14]
29 The plainitff was referred again to Mr Frank Lyons on 7 February 2011,[17] and she again consulted her general practitioner on 24 February 2011.[18] The plaintiff was certified as unfit for work because of an increase in psychological symptoms. She was referred to a psychologist but says she then suffered from ongoing pain in the left shoulder. Also on 24 February 2011, the plaintiff ceased work at the Sodexo canteen at Esso Longford, and has not returned to work.
[17]DCB 41
[18]DCB 41
30 The plaintiff was also seen again by Mr Lyons on 24 February 2011.[19] He recommended the plaintiff’s left shoulder be treated conservatively.[20] Mr Lyons reported, inter alia, as follows:
“Clinical evaluation was not terribly helpful in establishing the source of these symptoms. Although she complains of aching in the upper part of the deltoid muscle, it is not precisely the location of that bony prominence that has resulted from the slight mal-union of the humeral shaft fracture. That x-ray is a very chronic one and she has had a small spike of bone right from the outset. I would find it difficult to explain a sudden onset of symptoms related to soft tissue irritation from that spike some eight or more years after the initial event. I think it is more likely she is getting some mild rotator cuff irritation despite the ultrasound not demonstrating any major pathology. Aching in the upper deltoid is a common site for referred pain from that structure.
…
I fear that a lot of Jennifer’s trouble at this stage is more related to WorkCover issues rather than the actual pathology. She seemed to get by perfectly well on lighter duties but it is her perception that life is being made difficult for her by her employer. These are not medical issues that we can solve for her. I think the ball is in her court at present to either negotiate ongoing lighter duties given that her shoulder clearly seems incompatible with the heavier duties or alternatively she needs to move to on to a different job.
There are certainly no surgical issues I can identify at this stage.”
[19]PCB 23, paragraph [15]
[20]DCB 98
31 On 24 May 2011, the plaintiff commenced to see psychologist, Janette Gibson.[21]
[21]PCB 49
32 Although the plaintiff ceased working for Sodexo at Esso Longford on 24 February 2011, she did continue to maintain her part-time casual employment at the Sale RSL Club. Previously, she had performed this work at the same time that she had been working for Sodexo. From approximately May of 2011, she increased the hours that she worked at the Sale RSL Club. In her affidavit, she said that she increased her hours from between 10 to 15 hours per week to about 32 hours per week.[22] The plaintiff said that she was finding it difficult to cope with her duties at the Sale RSL Club.[23]
[22]PCB 22, paragraph [10]
[23]PCB 22, paragraph [11]
33 The plaintiff had an ultrasound-guided injection into the left shoulder on 13 December 2011.[24]
[24]PCB 23, paragraph [16]
34 In her first affidavit, the plaintiff said she stopped working at the Sale RSL Club in January 2012, “because in December 2011 somebody at QBE [the defendant’s insurance agent] contacted the RSL and my boss then gave me a hard time after that. I found it difficult to cope given the stress and the pressure I was under and I left.”[25]
[25]PCB 22-23, paragraph [12]
35 The plaintiff claimed to have re-injured herself on about 7 January 2012 whilst working at the Sale RSL Club and she completed a separate Claim Form in relation to that injury twelve days later, on 19 January 2012. In the Claim Form, she was asked to describe her injury. The plaintiff supplied these details “Left shoulder injury. Stress due to workplace.” In the Claim Form, she said that she was injured “Priming keg/General duties”. When asked what happened and how were you injured, the plaintiff responded “Previous injury existing”.[26]
[26]DCB 62
36 On 19 July 2016, the plaintiff swore her third affidavit in this proceeding. It was sworn the day before the hearing commenced. The affidavit dealt with the plaintiff having lodged a claim on WorkCover for an injury said to have been sustained in the course of her work with the Sale RSL Club on 7 January 2012.[27] In the third affidavit, the plaintiff said, inter alia:
[27]PCB 32a
“3.I confirm that whilst I was working at the RSL I was providing them with certificates from my doctor requiring me to work light duties because of my left shoulder injury which I sustained in the course of my employment with Sodexo. Despite the certificates the RSL required me to work normal duties including pegging kegs and lifting other items. This was making me very distressed and upset.
4.On 7 January 2012 I was required to peg a keg which involved moving the keg which was very heavy. I felt an increase in my symptoms in my left shoulder. I was worried that I would hurt myself so I stopped my duties. I did what I could the remainder of the shift avoiding any heavy lifting but I was very upset that I was required to do this work. I attended my doctor, Dr Nicholson, on 9 January 2012 because I was very distressed about the increase in symptoms and did not want to attend work. I was very stressed that the RSL would require me to do heavy work despite the certificates and felt that I was being bullied.
5.The increased symptoms then settled down over the following few weeks but I continued to have ongoing shoulder pain as I had done since the injury in 2010. I re-attended the clinic and was seen by Dr Halima Satari on 19 January 2012. A second opinion was sought due to the long standing nature of my symptoms from Mr Douglas Li.
6.I do not believe I sustained a further injury to my shoulder on 7 January 2012 but rather had a temporary increase in symptoms in my shoulder which had been painful for a long time.
7.I had many episodes of increased symptoms in my shoulder throughout that period from normal activities including domestic activities at home.
… .”[28]
[28]PCB 32b and 32c
37 It is the plaintiff’s case that what happened on 7 January 2012 at the Sale RSL Club was a flare-up of the symptoms from the plaintiff’s injury at Sodexo suffered in August 2010.[29] I understand the use of the term “flare-up” to be used by the plaintiff to distinguish what occurred on 7 January 2012 from an “aggravation”.
[29]Plaintiff’s third affidavit, paragraph [6]
38 The plaintiff attended upon her general practitioner, Dr Nicholson, on 9 January 2012. Dr Nicholson’s notes record the plaintiff as presenting with anxiety and depression. He recorded:
“… in strife with the RSL & Club feels she is being bullied is quite distressed.
does some currently unpaid milking which she enjoys
some benefit from the injection into the left arm
certificates issued.”[30]
[30]DCB 38
39 Dr Nicholson made no note of the plaintiff having mentioned to him any incident at work at the RSL Club two days earlier.[31]
[31]DCB 38
40 The plaintiff returned to her general practitioner ten days later, on 19 January 2012, when she was seen by a different doctor at the same practice. Her note records that the plaintiff consulted Dr Halima Satari for what might be described as psychological problems.[32]
[32]DCB 38
41 In her first affidavit, the plaintiff said she had to have physiotherapy treatment in January 2012.[33] The note of the general practitioner, Dr Satari, whom the plaintiff saw on 19 January 2012, reads as follows:
[33]PCB 23, paragraph [13]
“History: very low and upset
hurt left shoulder at rsl by lefting [scil lifting] heavy
not attend the job since 2 weeks
need work cover claim from that time
told them the shoulder is sor[e] from other job
and not able to do heavy duties
boss is mean dure (sic) to the other work cover claim
need many
feel depress[ed] and in pain
not able to left [scil lift] left shoulder
Treatment/Plan: Letter to Ms Jeanette Gibson
listening
reassurance
counselling
very vague and difficult to mx.”[34]
(sic)
[34]DCB 38
42 This is the first medical record of the plaintiff having complained to a doctor of having been injured at her work at the Sale RSL Club on 7 January 2012.
43 The defendant submits this medical record is evidence of clearly increased pain and the inability of the plaintiff to work because of the injury that she claimed to have suffered at the Sale RSL Club on 7 January 2012.
44 In evidence, the plaintiff said the doctor’s English was not very good and she did not know if the doctor understood what she was saying. The defendant says that could not be the case, but in any event, Dr Nicholson, who does not have any problems with English, completed a questionnaire related to the claimed injury at the Sale RSL Club on 25 February 2012.[35] I note there is no suggestion in the plaintiff’s third affidavit of any difficulty in communicating with Dr Satari.
[35]DCB 23
45 On 25 February 2012, the plaintiff’s general practitioner, Dr Nicholson, completed a questionnaire for the defendant related to the claim made by the plaintiff for having injured her left shoulder whilst working at the Sale RSL Club.[36] In that questionnaire, Dr Nicholson described the plaintiff’s claimed injury from the 7 January 2012 incident at the Sale RSL Club as “Bullying at work. Injury to left shoulder.” He went on to describe the plaintiff’s “current injury” as “anxiety with Depression due to bullying by Supervisor”. In his form, Dr Nicholson added “Bullying by Supervisor. Arm injured when dragging a keg at work.”
[36]DCB 23
46 On 8 March 2012, the defendant rejected the plaintiff’s WorkCover claim related to the injury at the Sale RSL Club.[37]
[37]DCB 64
47 On 30 March 2012, Dr Nicholson referred the plaintiff to Mr Douglas Li, orthopaedic surgeon.[38] Mr Li in turn referred the plaintiff for nerve conduction studies, which were normal. Mr Li recommended the plaintiff undergo further surgery in the form of an ostectomy of the spur and radial neurolysis.[39]
[38]PCB 32d
[39]DCB 16
48 In December 2012, the plaintiff commenced working as an assistant in a delicatessen.
49 On 22 January 2013, QBE Insurance, as the WorkCover agent for Sodexo, approved the recommendation of Mr Li for the plaintiff to undergo left shoulder open exploration, and neurolysis of the nerve, and decompression of the bony spur.[40] The plaintiff leads this evidence as an admission of liability by the defendant.
[40]PCB 57
50 On 21 March 2013, Mr Li performed a left humerus osteectomy and a left radial nerve neurolysis upon the plaintiff at St Vincent’s Private Hospital in Melbourne.[41] In the operation report, Mr Li said, inter alia:
“… The bony spike was found and was quite sizeable in that it measured almost 1cm in length and there was an overlying bursa suggesting that there was irritation of the surrounding musculature. The bony spike was carefully dissected of[f] its soft tissue attachments and then osteectomy was performed with an osteotome and the edges smoothed with a rasp. The wound was washed and closed in layers.”[42]
[41]PCB 24, paragraph [19]
[42]DCB 15
51 In her first affidavit, the plaintiff said that following the surgery, she was referred for physiotherapy, and hydrotherapy, and she had a good outcome from surgery “… although I continue to experience ongoing restriction of movement in my left shoulder and pain upon elevation over 45 degrees”.[43] The plaintiff said she finds it difficult to perform repetitive movements with her left shoulder without experiencing pain. “I avoid carrying anything heavy with my left shoulder because of increasing pain.”[44]
[43]PCB 24, paragraph [20]
[44]PCB 24, paragraph [21]
52 In June 2013, the plaintiff commenced work as a peer worker with an organisation known by the acronym SNAP – “(Special Needs Access Programme) for mental health”.[45] In this job, the plaintiff was employed for about one hour per week talking with people with mental health issues.[46]
[45]T14
[46]PCB 29, paragraph [4]
53 On 10 October 2013, the plaintiff lodged a claim for an impairment benefit pursuant to s98C of the Act.[47]
[47]PCB 58
54 On 30 January 2014, the plaintiff’s s98C claim was accepted.[48]
[48]PCB 58
55 It was accepted that at the time of trial in July 2016, the plaintiff was not having any active treatment. In opening, her counsel conceded:
“MS PILIPASIDIS:
The plaintiff currently is not having any active treatment. Her treatment really consists of Panadol Osteo between six to 12 a day. She sees her GP when she really needs to, Dr Nicholson, but otherwise she is not having any further active treatment. She’s working very limited hours, but it is not a claim that we pursue for pecuniary loss consequences, it’s just for pain and suffering consequences at this stage. … .”[49]
[49]T15
56 The defendant accepts that the plaintiff sustained some sort of injury whilst working with Sodexo in August 2010 but says that the plaintiff suffered a further injury, an aggravation, in the incident for which she claimed to have been injured at the Sale RSL Club on 7 January 2012.
57 Having regard to the chronology which I have set out in detail above, the defendant raises a number of issues which it submits should lead me to the conclusion that the plaintiff’s application should be dismissed.
58 Firstly, the defendant submits that the consequences which the plaintiff claims to presently suffer cannot be attributable to any injury she suffered on about 5 August 2010. In this regard, the defendant submits that the evidence shows that there may have been numerous aggravations of the initial shoulder injury suffered by the plaintiff, and she must disentangle the consequences attributable to which injury or aggravation. In addition, the defendant submits the material shows that the plaintiff has been referred for treatment for numerous psychological issues that cut across the consequences flowing from any injury to the plaintiff’s left shoulder. In these circumstances, the defendant submits that the material does not permit of a finding that the plaintiff has discharged the onus of disentangling the consequences.
59 Secondly, the defendant contends that the plaintiff is able to continue to carry out virtually all of her daily activities, and therefore the consequences to her from any injury on 5 January 2010 do not permit a finding of “serious injury” within the meaning of the Act.
60 Thirdly, the defendant challenges the plaintiff’s reliability as a witness, and her credit.[50]
[50]T107-108
61 In her first affidavit, the plaintiff said she completed Year 12 at school and then undertook a Diploma of Food Services, and then worked in the catering industry until about the age of thirty-five. In 1987, she obtained a Diploma of Education and commenced at a TAFE.
62 At the time that the plaintiff swore her first affidavit, she said she was using her right arm to do almost everything to avoid putting pressure on her left arm but in the process, causing her right arm to ache from overuse.[51] The plaintiff said that because of her injury to her left shoulder, she was no longer able to volunteer as a teacher in outback Australia because she could not endure the pain associated with driving to the remote areas.[52] The plaintiff deposed that she can no longer enjoy mountain bike riding or driving rally cars.[53] She said that whilst she can continue to do most of her housework, she can no longer cut the grass in her garden, or do the pruning.[54]
[51]PCB 25, paragraph [23]
[52]PCB 25, paragraph [24]
[53]PCB 25, paragraphs [25] and [26]
[54]PCB 25, paragraph [27]
63 At the time the plaintiff swore her first affidavit in July 2014, she continued to consult her general practitioner but had ceased seeing a psychologist. She had a small part-time job tutoring, and continued her involvement in community volunteer work.[55]
[55]PCB 26, paragraph [28]-[32]
64 When the plaintiff swore her second affidavit in June 2016, she said she experiences ongoing pain in her left shoulder and arm. She said that she experienced pain on a daily basis, and that the pain was aggravated by any repetitive activity or by carrying anything too heavy with her left arm. Whilst she was able to move her left shoulder, she said she suffers pain if she elevates her left arm away from her body.[56]
[56]PCB 28-29, paragraph [2]-[3]
65 In her second affidavit, the plaintiff described the ongoing volunteer work she continues to perform, and other part-time employment she has. She also described the consequences to her, at the time of swearing this affidavit, from her injury to the left shoulder. She said that she continues to find it difficult to lift or carry weights with her left arm. She said she modified how she performs most of her housework and cooking. Mopping and vacuuming, she said, are problems for her. She said that she has difficulty performing maintenance around the house, and in the garden, and she has difficulty hanging out washing.[57]
[57]PCB 30, paragraph [7]-[8]
66 The plaintiff described driving long distances, as aggravating her shoulder pain, and she said she was having difficulty gripping things with her left hand.[58] By the time the plaintiff swore her second affidavit, she had ceased bike riding. At the time she swore her first affidavit, she was able to ride her bike.[59]
[58]PCB 30, paragraph [9]-[10]
[59]PCB 30-31, paragraph [11] compare PCB 25, paragraph [25]
67 The plaintiff said that she was taking Panadol Osteo and duloxetine for pain relief.[60] In evidence-in-chief, the plaintiff said that duloxetine is in fact an anti-depressant. She said in evidence that she was taking twelve, and at times sixteen, Panadol per day for pain.[61] At the time of swearing her second affidavit, she was continuing to have physiotherapy, and she was her father’s carer, although she did not live with him. She performs general tasks to assist with his living.[62]
[60]PCB 31, paragraph [12]
[61]T20
[62]PCB 31, paragraphs [13]-[14]
68 The plaintiff was extensively cross-examined by Ms Britbart. As will be seen, the plaintiff often did not answer the question directly. She did this throughout most of the cross-examination. Having listened to her evidence closely and watching her in giving her evidence, I formed the strong view that she was being deliberately evasive.
69 The cross-examination commenced on the subject of the consequences to the plaintiff from the initial 2002 shoulder injury and the subsequent surgery that she underwent in February 2004 which she said left her in an improved condition but with some ongoing impingement of movement:
MS BRITBART:
Q:“How long did it take you to recover from that operation that Mr Lyons performed?‑‑‑
A:Maybe a couple of months, maybe six months, I couldn’t say exactly.
Q:Are you saying that within six months of the operation that Mr Lyons performed you then had complete unrestricted movement in your left shoulder and arm?‑‑‑
A:I couldn't raise it up higher, but I could do everything without pain.
Q:So you were able to do things because you had developed some, I guess, techniques to compensate for any limitations that you had?‑‑‑
A:I had to manage.
… .”[63]
[63]T25-26
HIS HONOUR:
Q:“Could I just interrupt a second. Before you had the operation you have said you had some restricted movement in your arm. How high could you lift it, could you lift it above shoulder height?‑‑‑
A:No, I couldn’t.
Q:What about reaching low, how far down ‑ ‑ ‑?‑‑‑
A:Yeah, I couldn’t - I couldn’t reach down low or underneath something. So it was like this ‑ ‑ ‑
Q:Yes. So you were really restricted between your shoulder and about your waist?‑‑‑
A:Yes.
Q: Is that right?‑‑‑
A: Yes, and I couldn’t extend my arm.
Q:Then when you had the operation ‑ ‑ ‑?‑‑‑
A:I had that extension again and more flexibility.
Q:After you had the operation could you raise your arm above shoulder height?‑‑‑
A:Yes.
Q: And unrestricted?‑‑‑
A: It was a little bit impingement, but I could do most things.
Q:And what about reaching down after the operation, about six months after the operation after you had recovered?‑‑‑
A:Yeah, it was much better, yes.”[64]
[64]T26
70 The plaintiff said that even after the surgery, and after she had recovered from it, she developed compensatory techniques to ensure she did not aggravate her left shoulder and arm.[65]
[65]T27
71 The plaintiff was asked about the six-year period between when she was operated on by Mr Lyons in February 2004, and when she was injured at Sodexo in August 2010. Counsel had a lot of difficulty getting her to answer the question:[66]
[66]T28
MS BRITBART:
Q:“Let me clarify it. As far as your physical condition at the time, leaving aside whether you could do your job or not, you could do your job at the boarding house. As far as your physical condition with your left arm were you still having some problems with completely unrestricted movement of that arm?‑‑‑
A:I wouldn’t say problems, I resumed my normal life. Yes, it might have been three inches or four inches reach that was different, this way or this way, but it didn’t ‑ ‑ ‑
Q:It didn’t interfere with your ability to do your job. I understand?‑‑‑
A:No, I just did it, did what I was trained to do.
Q:But just summarising that is it fair to say that ever since the injury in 2002 there may have been some restrictions in your reach, whether it’s forwards, whether it’s upwards, but you were able to do your job; is that fair?‑‑‑
A:I wouldn’t call it restriction, I’m sorry.
Q:So a difference, is that ‑ ‑ ‑?‑‑‑
A:I returned to my normal, how I was before.
Q:I see. With a difference in how far you could reach forward or upwards?‑‑‑
A:Slightly, yes. Very slightly.
Q:All right. So when you were the chef manager at the boarding house you made sure that everything was done in a safe manner and you could control your own work environment given you were managing that kitchen on your own?‑‑‑
A:Yes.
Q:Keep things at bench height?‑‑‑
A:Yep.[67]
[67]T29
…
Q:Still in that environment you made sure as the teacher that everything was done in a safe manner, you weren’t lifting heavy things from above your head or down low?‑‑‑
A:In a TAFE college when you train students, you have to have high standards of occupational health and safety.
Q:Is that yes, in answer to my question? You made sure that no-one was lifting things down, from up ‑ ‑ ‑?‑‑‑
A:Yes.
Q:--- high or down low? Yes?”[68]
[68]T30
57The plaintiff said that when she started at Sodexo she was employed as a grill chef to prepare breakfast meals. This involved cooking breakfasts, such as bacon and eggs, whilst working at a grill at grill height. But she said her job changed to cooking lunches and dinners which involved her having to collect heavy ingredients (fruit and vegetables) from a cool room and carrying it up steps to the kitchen for preparation. The plaintiff was adamant that she could still perform the grill chef job but not the other work, because it involved too much carrying and lifting.[69] She was asked about this but still would not answer the question asked of her:
[69]T30-37
HIS HONOUR:
Q:“Sure?‑‑‑
A:So in hospitality that is a regular event. It was just that when I was at Sudexo (sic) and I had hurt my arm I wanted to remain back on the job that I first started with because I knew it was easier and it would be easier and that was the job I was originally applied for.
Q:“That was a grill chef?‑‑‑
A:Yes.
Q:After you were injured you felt you could have done that?‑‑‑
A:I did it, I did it, and I did it well.
Q:Yes?‑‑‑
A:But not after I was injured, before I was injured. I did that job and did it well.”
MS BRITBART:
Q:“Yes. I think what His Honour was asking was, you felt you could do it afterwards as well, after you had injured your arm?‑‑‑
A:I had some time off and they would not give me light duties. They wanted to put me on night shift, and on night shift you are solely responsible for absolutely everything, including the cleaning and lifting, and I said no because there is no one else on that side.
Q:Can I just stop you there. After your injury did you feel you were physically capable of going back to work as a grill chef?‑‑‑
A:I wanted to try to get back to doing a normal job.”[70]
[70]T37
72 In submissions, Ms Pilipasidis submitted that I should accept the plaintiff “as a credible and honest witness who should be accepted as stoic, who did not exaggerate or embellish her symptoms or problems”.[71] I do not accept that submission.
[71]Plaintiff’s outline of submissions, paragraph [2]
73 The plaintiff submits that following the injury to the plaintiff’s left shoulder in 2002, there was no ongoing impairment or consequences for the plaintiff arising from that injury at the time that she commenced employment with Sodexo. In this regard, the plaintiff relies upon a certificate of Dr Christine Martin dated 10 December 2009.[72] In that certificate, Dr Martin certified “No Limitation in L Upper Arm From Past Fractures”. From this, Ms Pilipasidis argues that at the time that the plaintiff commenced working at Sodexo, she had no impairment consequences arising from the earlier injury to her left upper arm.
[72]PCB 68
74 The defendant disputes this submission and argues that on the evidence from the plaintiff herself in cross-examination, it is obvious the plaintiff did have ongoing consequences from the 2002 injury at the time she commenced to work at Sodexo, and at the time she suffered the injury upon which this claim is based. I accept that submission. It is clear from the plaintiff’s evidence that following the 2002 injury and subsequent surgery, she still had limitation of movement and reach from her left shoulder injury. It did not prevent her from working but she had to make adjustments to enable her to do her work.
75 Ms Pilipasidis also relies upon a report from Mr Damien Ireland, a hand surgeon and hand specialist. He examined the plaintiff for medico-legal purposes on 22 January 2014.[73] Mr Ireland is not a treating doctor. Ms Pilipasidis relies upon a statement in Mr Ireland’s report that the plaintiff had been symptom free with regard to the left shoulder since 2005 after surgery from Mr Lyons on 24 March 2004 which involved an arthroscopic rotator cuff decompression.[74] What Mr Ireland said about the plaintiff being “symptom free” in 2005 can only have been based upon what the plaintiff said to him, a fact acknowledged by Mr Ireland in the penultimate paragraph of his report.[75] It is not an opinion based upon any examination by him in 2005.
[73]PCB 55a
[74]PCB 55a and 55b
[75]PCB 55e
76 Also, because the plaintiff was said to be “symptom free” by Mr Ireland in 2005, Ms Pilipasidis relies upon his opinion that there is no requirement for apportionment of the impairment consequences arising from the 2002 injury.[76] I do not accept that submission.
[76]Submissions, paragraph [4]
77 Mr Ireland’s diagnosis was expressed in the following terms:
“The diagnosis is mild left shoulder dysfunction with restricted motion following a work injury in 2002 and subsequent shoulder surgery in 2004, and following a more recent work injury in 2010 and further surgery to the humerus in 2013.”[77]
[77]PCB 55c
78 Mr Ireland was asked to give an opinion as to whether or not the plaintiff’s employment was a significant contributing factor to the injury. In answering this question, he said:
“In my opinion the 2010 incident has been a significant contributing factor. This opinion is based on the fact the worker was symptom free with regard to the left shoulder for five years prior to this incident, notwithstanding the fact that she had previously sustained an injury to the humerus and had undergone arthroscopic surgery to the left shoulder joint.”[78]
[78]PCB 55d
79 Mr Ireland found the plaintiff’s presentation was consistent “with the description of the workplace incidents by two”.[79] I do not accept Ms Pilipasidis’ submission that Mr Ireland’s report provides evidence that the plaintiff was symptom free at the time she commenced employment with Sodexo. Although the plaintiff told Mr Ireland that she had part-time employment at the Sale RSL Club, she did not tell him that she had injured herself in this employment in January 2012, and there is no mention of this in his report. There is no evidence Mr Ireland had available to him the document prepared by Dr Martin on 10 December 2009.[80]
[79]PCB 55d
[80]PCB 68
80 In any event, the diagnosis by Mr Ireland of the plaintiff’s ongoing left shoulder dysfunction attributes the cause of her then ongoing symptoms to the injuries suffered in both 2002 and 2010. Mr Ireland’s opinion as to the cause of the plaintiff’s ongoing left shoulder dysfunction does not attempt to confine the cause of the consequence to the 2010 injury.
81 I find that the plaintiff did have ongoing pain and suffering consequences arising from the 2002 injury at the time that she commenced her employment with Sodexo.
82 Ms Pilipasidis submitted that what happened to the plaintiff at the Sale RSL Club on 7 January 2012 should be regarded as a “flare-up” of the injury sustained on 5 August 2010. In this regard, she relied upon a report prepared by the plaintiff’s general practitioner, Dr Nicholson, two days before the hearing of this application began. On 19 July 2016, the plaintiff’s legal practitioners wrote to the plaintiff’s general practitioner, Dr Nicholson, asking him a series of questions, no doubt designed to address complications to the plaintiff’s case arising from the incident at the Sale RSL Club on 7 January 2012. This is what Dr Nicholson was asked and these are the answers he gave:
“1.Was the increase in symptoms reported by the plaintiff in January 2012 as a result of a new injury sustained in the plaintiff’s employment with the RSL club or an exacerbation of a previous injury sustained during her employment with Sodexo and in particular on 5 August 2010?
In my clinical opinion symptoms reported by the plaintiff in January 2012 should be regarded as an exacerbation of her previous injury of August 2010.
2.Is the plaintiff’s current condition and symptoms partially or entirely casually [scil causally] related to her employment with Sodexo and in particular the injuries she sustained on or about 5 August 2010?
In my clinical opinion, yes her current condition and symptoms are causally related to her employment with Sodexo and the injuries sustained on or about 5 August 2010.”[81]
[81]PCB 40a
83 It can be seen that the question Dr Nicholson was asked was loaded. The symptoms were not just symptoms but were described as an “increase in symptoms”.
84 Ms Pilipasidis relied upon the further report of Dr Nicholson, arguing it provides evidence discharging the plaintiff of her legal obligation to discharge the burden of proof of disentangling the consequences of any injury suffered in 2012 from the consequences of the August 2010 injury. Mr Pilipasidis submitted the incident in 2012 was a flare-up of the pain and suffering consequences caused by the 5 August 2010 injury which quickly settled, leaving the plaintiff with the ongoing pain and suffering consequences of the 5 August 2010 injury.
85 I do not accept this submission. Primarily, it relies upon my acceptance of the plaintiff’s evidence, which I do not accept for the reasons I have dealt with above.
86 The defendant also relies upon the report of Dr Nicholson. It argues the report evidences at least an aggravation of a pre-existing injury in January 2012, and this, it argues, is a separate injury. It argues the plaintiff has been less than candid in what she has said about this injury, mentioning it for only the first time in her third affidavit sworn the day before the hearing began, notwithstanding that she had gone to the trouble of putting in a separate claim for compensation relating to this injury in January 2012.
87 Ms Pilipasidis submitted that I should accept the plaintiff’s evidence in her third affidavit that there was an increase in her symptoms arising from what occurred at the Sale RSL Club on 7 January 2012 but that the symptoms settled down to the same level that they were at prior to the “flare up” on that date.[82] She submitted this evidence was unchallenged. As I have said earlier, I do not accept the plaintiff’s evidence on contentious points in this application. I do not accept the plaintiff’s evidence in her third affidavit that the injury that occurred on 7 January 2012 resulted in only a temporary increase in symptoms of her left shoulder.
[82]PCB 68, Submissions, paragraphs [6]-[7]
88 The plaintiff was medically examined By Mr Peter Scott, a senior consultant surgeon, at the request of the defendant’s legal practitioners on 9 February 2016. The reason for the examination was to have Mr Scott consider the claimant’s left upper limb problems in relation to an accident in 2002 and further injury of the 5 August 2010.[83]
[83]DCB 1
89 For the purposes of the medical examination, Mr Scott was provided with the a great deal of documentation which he has set out on page 2 of his report.[84] Mr Scott set out a detailed history relating to the plaintiff in his first report. After referring to the arthroscopic surgery carried out by Mr Frank Lyons in March 2004, Mr Scott said, inter alia:
“The claimant was vague as to when she returned to the workforce but probably at some stage in 2000 and 2004 she may have returned to the grammar school working as a chef on a casual basis. At times she complained of some ongoing discomfort when reaching up or reaching out, or pulling or pushing against resistance.”[85]
[84]DCB 2
[85]DCB 3
90 Mr Scott is clearly of the opinion that the plaintiff suffered an aggravation of the left shoulder problem in August 2010 whilst employed by Sodexo and a further aggravation whilst she was employed at the Sale RSL Club on 7 January 2012. Whilst the report apportions causation of the plaintiff’s left shoulder injury to the three incidents, it does not provide evidence that assists with identifying specific consequences of a pain and suffering kind that may be attributed as a consequence of the three separate and distinct events of injury. In his report, he said this:
“Information suggests that she had an aggravation of her left shoulder problems which occurred initially in 2002 occurred (sic) the while employed by Sodexo in August 2010 and while employed by Sale RSL on 07.01.2012. I would estimate that one-third of her present shoulder problems relate to the injury that occurred while she was employed by Sodexo and one-third relates to employment with Sale RSL.”[86]
[86]DCB 8
91 In his report of 9 February 2016, Mr Scott was of the opinion that the plaintiff had developed a problem with stress whilst employed by Sodexo and which was probably aggravated whilst employed by Sale RSL Club. He said this requires clarification by a psychiatrist.[87]
[87]DCB 9
92 Mr Scott was asked to detail how he arrived at his apportionment. I find his opinion very helpful. This is what he said by way of response:
“In summary it was my belief that while employed by the Gippsland Grammar School and in particular in 2002 she sustained a fracture to the left humerus resulting in pain and stiffness and probable frozen shoulder complications with slow recovery with use of a lot of physiotherapy resulting in an incomplete recovery and persistent pain.
Because of the persistent pain, in 2004 she underwent her first operation on the shoulder for rotator cuff and tendinitis impingement which resulted in some improvement.
After many months she was able to return to the workforce and resume her job at Gippsland Grammar School but continued to complain of persistent pain in the shoulder with activity, particularly with reaching up or reaching out or pulling or pushing against resistance.
Her next job was at Sodeko (sic) at the ESSO gas plant which was as a contract food provider working part time.
I am of the opinion that with an increased workload, in particular when having to lift supplies of some 15 kg, aggravation of her shoulder condition occurred and in particular on 05.08.2012 while lifting a 15 kg box of chili sauce, further aggravation of an already existing shoulder problem occurred.
She had a further period off work, something like four months, during which time an x-ray was taken which showed that the original humeral fracture had healed but there was evidence of an osteophytic projection on the lateral aspect of the fracture site.
She did attempt to return to the workforce at Sodeko (sic) but ceased work in February 2011 because of ongoing problems.
Her other job was at the RSL at Sale working casually 10 to 20 hours per week as a gaming attendant and bar worker where further aggravation probably occurred while moving barrels of beer and lifting large bottles of water.
She saw her local doctor complaining of worsening pain and discomfort in the shoulder and further investigations showed a bone spur at the original fracture site on the left humerus which led to her undergoing an operation on 21.03.2013 by Mr Li, at which time she had a humeral ostectomy and removal of the bone spur and a neurolysis of her left radial nerve.
At the time of my consultation with her on 09.02.2016 she had not returned to the workforce and she was complaining of ongoing discomfort in the left shoulder and examination showed a reduced range of movement but no evidence of any radial nerve palsy.
I concluded that the shoulder problems relate to activities performed by her at the Gippsland Grammar School and at Sodeko (sic) and at the RSL, all of which appear to be times when significant aggravation of her problem occurred.”[88]
[88]DCB 13
93 Ms Pilipasidis submitted that I should not accept or act upon the opinions of Mr Scott. As I followed her submission, his opinion had been wrongly influenced by what was contained in a letter of instruction to him from the defendant solicitors which I accepted into evidence as exhibit B. I do not accept the submissions. Mr Scott is a very senior and experienced surgeon. It was not inappropriate for the solicitors to instruct him on the basis the plaintiff suffered “another left shoulder injury with Sale RSL Club in about January 2012”.[89] It was also not inappropriate for the solicitors to refer to the fact that the plaintiff had lodged a WorkCover claim in respect of the incident at the Sale RSL Club and to describe the circumstances in which the plaintiff alleged that she had been injured in that incident. As I understood the submission made on behalf of the plaintiff, the defendant’s solicitors had given an incorrect description of the plaintiff’s history which was inappropriately adopted by Mr Scott in forming his opinion. I do not accept that submission.
[89]Plaintiff’s submissions, paragraph [8]
94 Ms Pilipasidis submitted that in forming his opinion, Mr Scott had taken the view that leading up to the incident at the Sale RSL Club in January 2012, there was an absence of a past history of left arm problems with the plaintiff which could be due to left radial nerve involvement secondary to the development of an osteophytic spur. Ms Pilipasidis submitted that this finding by Mr Scott overlooks the fact that the osteophytic spur had been identified in an x-ray on 11 August 2010.[90] Further, nerve conduction studies were reported as normal, with no evidence of left-sided radial nerve lesion.
[90]PCB 32(f)
95 Ms Pilipasidis submitted that the plaintiff’s symptoms after the 7 January 2012 “flare-up” were the same as they had been prior to the incident at the Sale RSL Club.[91] She submitted that as at 7 January 2012, the plaintiff had already “well-established consequences” as a result of the injury she sustained at Sodexo on 5 August 2010. Ms Pilipasidis submitted the plaintiff had permanent restriction to pre-injury employment duties, constant pain requiring medication, a need for medication to cope with the pain, namely, Panadol Osteo, and prior to that, medication which affected her stomach requiring Nexium, an inability to perform her pre-injury duties and an inability to use her left arm in an unrestricted manner.[92] Ms Pilipasidis submitted that these consequences did not change for the plaintiff following the incident on 7 January 2012. She submitted that had the incident at the Sale RSL Club not occurred, the plaintiff’s condition would still be the same. Ms Pilipasidis submitted that I should not regard the flare-up of the plaintiff’s symptoms after the 7 January 2012 incident as an aggravation of the plaintiff’s pre-existing injury. I reject that submission. In my view, the evidence clearly shows the plaintiff suffered an aggravation of her pre-existing left arm injury in the incident at the Sale RSL Club on or about 7 January 2012, and the onus is on the plaintiff to disentangle the consequences of that aggravation injury from the consequences to her of the injury she sustained on 5 August 2010. In my opinion, the plaintiff has not discharged that onus.
[91]Plaintiff’s submissions, paragraph [9]
[92]Plaintiff’s submissions, paragraph [10]
96 Ms Pilipasidis submitted that the defendant has acted in a way that I should regard as having admitted liability. In this regard, she relies upon Ansett Australia Ltd v Taylor.[93] I do not accept that the principles in that case have application here. The defendant accepts the plaintiff suffered some injury whilst employed at Sodexo on or about 5 August 2010. It has accepted a Claim for Compensation arising from that incident. It does not, and has never, accepted the plaintiff suffered a serious injury in that incident. Further, it argues that much of what the plaintiff presently complains of by way of pain and suffering consequences are likely attributable to an aggravation injury that the plaintiff suffered whilst working for the Sale RSL Club on 7 January 2012.
[93][2006] VSCA 171
97 Ms Britbart submitted that the injury suffered by the plaintiff during the work at the Sale RSL Club on 7 January 2012 was an aggravation of her previous injury and as such is a separate injury as defined in the legislation. I accept that submission. I do not accept the submission of Ms Pilipasidis that I should treat the symptoms and any impairment consequences to the plaintiff as a result of what happened to her on 7 January 2012 as being a mere flare-up.
98 Ms Britbart submitted that the plaintiff has suffered at least three separate injuries, each of which has produced three separate sets of consequences. The three separate injuries occurred in 2002, 2010 and 2012.
99 Ms Britbart submitted that in those circumstances, the principles expressed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[94] and in Peak Engineering & Anor v McKenzie[95] apply. Firstly, I am required to identify each injury from the evidence. Secondly, I am required to identify the impairment consequences of each injury if possible from the evidence. Thirdly, if the injury is an aggravation, the consequences from the aggravation need to be identified if possible from the evidence. Fourthly, a comparison needs to be made between the consequences as a result the first injury in time and the second injury in time of the evidence. Fifthly, it is impermissible to accumulate consequences of one or more of the injuries. The onus rests on the plaintiff to put before the Court, evidence to enable the Court to decide all of these matters.
[94](2012) 34 VR 309
[95][2014] VSCA 67
100 Ms Britbart submitted the injury suffered by the plaintiff on 5 August 2010, whilst employed by Sodexo, was probably an aggravation of the injury sustained in 2002, but there is no medical evidence from which to gauge how and to what extent, the original injury of 2002 was aggravated. She further submitted that where (as here) there is an entanglement of the plaintiff’s impairment consequences from the three separate injuries, and where (as here) some of the consequences are probably functional or psychologically caused, it is for the plaintiff to disentangle the consequences to attribute them between the three injuries and to separate out any consequences that may have been psychologically caused. Ms Britbart submitted the plaintiff has not done this on the evidence in this case. I accept those submissions.
101 The defendant attacks the reliability and credibility of the plaintiff as a witness. Ms Britbart submitted that the plaintiff was not a reliable historian. She submitted the plaintiff was at times evasive in her answers and she tried to answer in a way that she thought would assist her case and had to be repeatedly refocused back to the issue raised by the question. Ms Britbart referred to instances when the plaintiff’s memory of certain events was shown to be variable. The defendant submits that there were aspects of the plaintiff’s evidence in cross-examination that were illogical.
102 I accept each one of these submissions criticising the plaintiff as a witness. I found her to be a poor witness. She is not uneducated, and nor is she inarticulate, and she is a woman of wide work experience. It was clear to me on a number of occasions during the course of her evidence that she was alert to the way in which particular questions, if answered truthfully, could damage her case. She repeatedly chose the tactic of evasion and would not directly answer the question, thereby doing herself little credit.
103 Mr Britbart criticised the way in which the plaintiff’s affidavit material had been drawn. She pointed to the fact that the first time plaintiff had mentioned the incident that occurred during the work at the Sale RSL Club on 7 January 2012 was when she swore her third affidavit the day before the hearing commenced. The matters raised by the aggravation injury on 7 January 2012 are clearly material to this proceeding. The plaintiff ceased all work soon after this injury occurred and did not work for some time. She also went to see a further specialist in consequence of what happened to her at her work at the RSL Club. Ms Britbart submitted the failure of the plaintiff to address the injury of 7 January 2012 in her affidavit material prior to 19 January 2016, was a major gap in the plaintiff’s material that reflected poorly on her credit. She submitted there has been a lack of candid disclosure on the part of the plaintiff. I accept that submission.
104 Ms Britbart submitted that I should find that the 2002 injury, involving, as it did, multiple fractures both at the head of the left humerus, and in the humerus bone itself, and torn ligaments of the left shoulder, was a serious injury. I did not understand there to be any dispute between the parties about this. After the 2002 injury, the evidence shows that the plaintiff had ongoing symptoms for at least two years as referred to in the medical notes of Dr Nicholson.[96] In 2004, the plaintiff had rotator cuff surgery. Thereafter, whilst her shoulder appears to have been comfortable, in the sense that she could function on a day-to-day basis, there is evidence from the plaintiff herself in cross-examination that she still suffered from some limitation of function in the left arm in the years that followed.[97]
[96]DCB 51-52
[97]See T25, L27; T26, L16; T26, L30; T29, L7; T29, L22
105 The defendant submitted the evidence shows that after the injury in 2002, the plaintiff was left with a left arm that did not suit her working in a job that required heavy work but she was otherwise fit for light duties. Ms Britbart submitted the that this is borne out by a reading of the report of Mr Lyons, who carried out surgery on the plaintiff in 2004 and saw her again in 2011.[98] She argued it is also apparent from the plaintiff’s own evidence in cross-examination.[99]
[98]PCB 98
[99]See T25, L27; T26, L16; T26, L30; T29, L7; T29, L22
106 So far as the second injury on 5 August 2010 is concerned, the defendant accepts that something occurred during the course the plaintiff’s employment with Sodexo which caused her pain. Ms Britbart conceded that the defendant accepted the plaintiff’s claim when lodged. After the incident, the plaintiff initially had some time off work. An ultrasound was carried out which showed no tear or joint problem in the left shoulder and she was given a certificate by her general practitioner not to do the work. The plaintiff was given light duty office work and there was no complaint about her capacity to do that work. By 13 September 2010, the plaintiff was able to do the light work that did not involve repetitive lifting and moving of the left arm.[100]
[100]DCB 96
107 The defendant points to the fact that in the general practitioner’s notes there are references to the plaintiff’s work capacity being affected by stress and workplace issues at this time. The defendant argues, based on what the plaintiff told her general practitioner as recorded in his notes, that by the time the plaintiff left her employment at Sodexo in February 2011, she was able to resume her work as a grill chef. The defendant submits that the evidence shows the plaintiff had work capacity after the 5 August 2010 injury at least by the time she ceased employment on 24 February 2011. There is no evidence of the plaintiff having been prescribed pain-relief medication in the general practitioner’s notes. When Mr Lyons saw the plaintiff in February 2011, he thought the plaintiff’s issues were related to WorkCover rather than any pathology in her left shoulder.[101] By the time the plaintiff had ceased working at Sodexo, she had increased her working hours at the Sale RSL Club.
[101]PCB 98
108 I accept this submission made by the defendant that at the time the plaintiff ceased employment at Sodexo she had the capacity to work as a grill chef provided she was not required to do heavy work and she had the capacity to also carry out her work at the RSL Club, even increased her hours of work, again on the proviso that she was not required to do the heavy work. A summary of the plaintiff’s taxation returns show the plaintiff substantially increased her earnings at the RSL Club in the period following the injury on 5 August 2010.[102] It also reveals the plaintiff was able to do other work as revealed by the number of employers.
[102]DCB 95
109 The defendant generally submits the evidence shows that after the 5 August 2010 injury, the plaintiff was in a position similar to that which she had found herself to be in after the 2002 injury but before the 2010 injury. That is, she had work capacity for light work and she was able to manage with work that she was able to control, in the sense that she could control her movements, such as working as a grill chef. Whilst she might have suffered from some pain on some movements, this was not pain at a disabling level and was certainly not at a level where she complained of, nor was she prescribed pain medication. The defendant submits that after the 2010 injury, the notes of the general practitioner reflect there were psychological issues impacting from workplace stress and perhaps bullying.[103]
[103]DCB 40, 39
110 I generally accept the defendant’s submissions relating to the plaintiff’s left shoulder injury and the consequences for the plaintiff following the 5 August 2010 injury. In my view, the evidence shows the plaintiff, after 5 August 2010, had a capacity for light work. She was able to increase her hours of work at the Sale RSL Club and obtain other employment. She had very limited pain and suffering consequences which did not require prescription medication.
111 In dealing with the injury on 7 January 2012 at the Sale RSL Club, the defendant submits, and I agree, that the evidence is unsatisfactory. Dr Nicholson was silent as to the occurrence of that injury until two days before trial when he first commented on it.[104] Mr Scott deals with the likely nature of that injury and I accept and act on his evidence. I reject the criticisms of his opinion by Ms Pilipasidis.
[104]PCB 40a
112 Ms Britbart pointed to the questionnaire completed by Dr Nicholson on 25 February 2012 where he described mechanism of the injury as being “bullying by supervisor/arm injured when dragging a keg at work”.[105] The defendant submits that the questionnaire completed by Dr Nicholson shows that the plaintiff had told him that she suffered pain following a specific incident of lifting something heavy, probably a keg of beer. The defendant points to the fact that the plaintiff was prescribed medication when she consulted doctors after 7 January 2012. Dr Nicholson, in the questionnaire, saw fit to draw attention to the fact the plaintiff has had a shoulder injury before, suggesting it was in his mind that what had occurred was an aggravation of either the 2002 or 2010 injuries.
[105]DCB 23
113 Further, the fact remains that whatever happened to the plaintiff on 7 January 2012, it had the consequence of the plaintiff ceasing work at the RSL Club shortly after that date, and the plaintiff did not seek work for the remainder of that year. The plaintiff gave evidence that his next job was at a delicatessen after she was approached by the owner at the end of 2012.[106]
[106]T93
114 Another consequence of the injury on 7 January 2012 was that the plaintiff was referred by Dr Nicholson to Dr Li.
115 Ms Britbart submits that what happened to the plaintiff on 7 January 2012 cannot be described as a mere flare-up when in fact the plaintiff sought medical treatment following a heavy lifting incident in the workplace of another employer. There were a number of consequences that resulted for the plaintiff as shown by the evidence.
116 I generally accept Ms Britbart’s submission. I do not accept what occurred on 7 January 2012 to the plaintiff resulted in a mere flare-up of her pre-existing symptoms. It was an aggravation of them.
117 I accept the submissions that the evidence does enable me to find what were the pain and suffering consequences suffered by the plaintiff from the 5 August 2010 aggravation of the 2002 injury. Further, the evidence also does not enable me to find what were the pain and suffering consequences suffered by the plaintiff from any further aggravation of either the 2002 injury or the 2010 injury that may have been caused by the further aggravation from an incident that occurred on or about 7 January 2012. I accept the defendant’s submission that the plaintiff has not discharged the burden of proof that she bears.
118 Alternatively, the defendant submits that as a result of her injury to her left shoulder and any subsequent aggravation of it, the plaintiff has not been left with a “serious injury” within the meaning of the Act. The defendant points to the fact that the plaintiff is able to do a light work job doing the same number of hours as she previously worked at Sodexo and at the Sale RSL Club. The plaintiff has had, over the years, a number of jobs in a number of differing fields and she has a range of work experience. Because the plaintiff is able to do light work, the defendant submits that informs the Court of her overall level of day-to-day functioning. At the time of the hearing, the plaintiff was working at a deli and had been doing so for a number of years.
119 The defendant submits, and I accept, that the plaintiff’s complaints of pain and suffering consequences must be seen in the light of the fact she has been treated for psychological issues such as bullying and depression and there is no evidence that enables this factor to be disentangled. I accept that submission.
120 The defendant submits, and evidence shows, the plaintiff is still active in community work, assisting neighbours and caring for her father. She does volunteer work, and travels to the centre of Australia. The plaintiff admits she can perform most of her household chores. She has some difficulty with gardening, for which she is assisted, and she has difficulty lifting heavy weights.
121 The defendant submits that even if all of the plaintiff’s pain and suffering consequences could be attributed to the injury during her employment at Sodexo on 5 August 2010, they are not consequences that could be regarded as serious injury consequences. I accept that submission. Relevantly, in the circumstances of this case, the plaintiff’s impairment, even if caused by an injury suffered by her whilst working at Sodexo on 5 August 2010, in my opinion, is not “serious” because the pain and suffering consequences suffered by her, when judged by a comparison with other cases in the range of possible impairments, cannot be “fairly described as being more than significant or marked and, as being at least very considerable” within s134AB(38)(c) of the Act.
122 For these reasons the plaintiff’s application must be dismissed.
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