Buenafe v Ensign Laboratories Pty Ltd; Buenafe v Transport Accident Commission
[2014] VCC 1631
•1 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06217
| REGINA BUENAFE | Plaintiff |
| v | |
| ENSIGN LABORATORIES PTY LTD | Defendant |
Case No. CI-12-06218
| REGINA BUENAFE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant (Second Defendant) |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11 and 12 June 2014 | |
DATE OF JUDGMENT: | 1 October 2014 | |
CASE MAY BE CITED AS: | Buenafe v Ensign Laboratories Pty Ltd; Buenafe v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1631 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the left shoulder and cervical spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ansett Australia Ltd v Taylor [2006] VSCA 171; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Meadows v Lichmore [2013] VSCA 201; Altona Bus Lines v Lococo [2002] VSCA 159; RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51
Judgment:Applications dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr D Seeman | Robinson Gill |
| For the Defendant | Mr C Miles | Wisewould Mahony |
Subject:TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – serious injury – impairment of the cervical spine – psychiatric impairment – Chronic Pain Syndrome
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; State of Victoria v Glover [1998] VSCA 93; West v Pac-Rim Printing Pty Ltd [2003] VSCA 68
Judgment: Applications dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr D Seeman | Robinson Gill |
| For the Defendant | Ms R Annesley QC with Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 These two applications of some complexity, involving four impairments, were heard together.
2 In opening, Junior Counsel for the plaintiff indicated the application pursuant to s134AB of the Accident Compensation Act 1985 related predominantly to the left upper limb. He agreed there was not a specific neck injury and that neck pain was referred from the left shoulder.[1]
[1]Transcript “T”1
3 Junior Counsel for the plaintiff submitted there was a new injury to the right shoulder in the transport accident but the application was principally about the neck. It was conceded there was little in the way of pathology in the neck and it was “very open to the Court to say that this is really a chronic pain case”. Further, the right shoulder was not a separate impairment and it could be safely said that any shoulder complaint was referred pain from the neck.[2]
[2]T8
4 There was also an application pursuant to clause (c) relating to the transport accident put principally in terms of a Chronic Pain Syndrome (“CPS”).
5 Ultimately, the plaintiff relied upon a separate impairment of the neck and left shoulder pursuant to s134AB.
6 The plaintiff sought leave pursuant to s93 in relation to an impairment of the cervical spine with referred pain to both shoulders and a psychiatric impairment pursuant to clause (c).
Section 134AB application
7 The plaintiff sought leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act for injury suffered her during the course of her employment with the defendant from 2003 to 2007 (“the period of employment”).
8 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
9 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
10 The body functions relied upon in this case are the cervical spine and left shoulder.
11 Apart from being a serious injury, the injury must have arisen on or after October 1999 before the plaintiff is entitled to recover damages.
12 The impairment of the body function must be permanent.
13 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
14 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
15 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
16 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
17 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
18 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
19 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
20 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.
[3] (2005) 14 VR 622
[4] (2006) 14 VR 602
Section 93 application
21 The plaintiff brought a further application by Originating Motion seeking leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the TAA”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the transport accident”) which occurred on 28 March 2008 (“the said date”).
22 Section 93(6) of the TAA provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
23
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) –
“a serious long term impairment or loss of a body function.”
24 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the cervical spine (referred pain to both shoulders).
25 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
26 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[5]
[5](2000) 1 VR 79
27 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[6]
[6][1992] 2 VR 129 at 140-1
28 There was also an application pursuant to ss(c) for psychiatric impairment involving depression and a CPS.
29 The judgment of the Court of Appeal in Mobilio v Balliotis[7] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[8] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[7][1998] 3 VR 833
[8](1995) 21 MVR 314
30 Winneke P, in Mobilio,[9] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the TAA, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[9]Mobilio v Balliotis (supra)
31 I accept that a CPS can result in impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[10]
[10][2005] VSCA 227
32 The plaintiff relied upon three affidavits. The first sworn on 28 January 2011 related to her s93 application. The second affidavit on 16 August 2012, in support of the s134AB application, repeated most of the first affidavit.
33 The plaintiff swore a third affidavit on 4 May 2014 in support of both applications. She gave viva vice evidence and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
34 The plaintiff is presently aged sixty, having been born in June 1954 in Manilla. She arrived in Australia in 1989 and in November that year, commenced work as a process worker for the defendant.
35 The plaintiff agreed that she was having problems with her neck and her work in 1998 as noted by her doctor. In the late 1990s, she complained of neck and knee pain, and investigations were carried out.
36 The plaintiff agreed she was significantly depressed in June 1999 and she was taking anti-depressants on and off up until the transport accident.[11]
[11]T88
37 The plaintiff’s job with the defendant was to work on the assembly line filling tubes and cans, sealing them and putting the finished product into boxes (“the work duties”). Her work was fast and repetitive. For most of the time in this job, she was placed on the faster line due to her experience.
38 In 2003, the plaintiff first began to feel some pain in her left elbow as a result of repetitive duties at work. That pain increased over time and in May 2005, she was diagnosed with left tennis elbow. In the latter half of 2005, she continued to have left elbow pain and had a cortisone injection which did not give any lasting relief.
39 The plaintiff continued to suffer pain, and by March 2006, she was prescribed Mobic. Her left elbow pain spread to the whole of her left arm up to her shoulder and into the left side of her neck.
40 During that time, the plaintiff attended Dr Monkivitch at Joseph Banks Medical Clinic in Endeavour Hills. She referred the plaintiff for an x-ray and ultrasound in June 2006. The plaintiff had an injection in her left shoulder and also some physiotherapy.
41 By June 2006, the plaintiff was still experiencing a lot of pain and having trouble sleeping because of muscle stiffness. Her general practitioner prescribed Ducene and later, Endep, but they did not really help.
42 As the plaintiff was having trouble performing her duties, Dr Monkivitch gave her a certificate for some time off work. A short time later, the plaintiff resumed light duties, working two hours a day, then working up to four hours a day.
43 The plaintiff lodged a WorkCover claim in July 2006 which was accepted.
44 From July 2006 onwards, the plaintiff performed light duties on reduced hours. She persevered to the best of her ability but sometimes she experienced exacerbations of pain which would see her off work for a couple of weeks at a time. Whilst doing light duties, the plaintiff continued to have left arm and neck pain.
45 The plaintiff agreed that her neck pain was worse than her limb pain in September 2006 when she saw Dr Palit at Cedar Court. The plaintiff agreed restrictions in her left limb and neck continued throughout the rest of 2006.[12]
[12]T95
46 The plaintiff agreed that in December 2006, when a worksite assessment was carried out, she had stiffness in her neck, and her sleep was disturbed because she could not relax her neck. She had difficulties with her work and there were lifting restrictions. She could not dry herself.[13] She had problems doing up her bra. She was sharing cooking with her partner. She had pain and tiredness when she did repetitive tasks.
[13]T97
47 The plaintiff agreed this was not very different to her present situation.[14] As of December 2006, her enjoyment of dancing at rock and roll had lessened.
[14]T99
48 From December 2006 to March 2007, the plaintiff participated in a pain management program at Cedar Court. That program helped her manage her pain but she still was not able to progress beyond light duties on reduced hours. About this time, the plaintiff was commenced on Effexor.
49 The plaintiff was trying her best with work in March 2007 but it was causing significant problems with her neck.[15] She was sent for a CT scan of her neck. The plaintiff agreed she had an acute neck pain exacerbation from standing at the conveyor line in June 2007. Work was causing her problems with her legs and her shoulders. She was under significant stress from the defendant to increase her work hours. She felt she was not able to do so, and that caused her significant anxiety, which she reported to her doctor.
[15]T101
50 The plaintiff agreed when she met with Network in July 2007, she was having increased problems with sleeping affecting her energy level and her mood. She had discontinued dancing.[16]
[16]T103
51 In about August 2007, the plaintiff’s duties involved stamping and handling boxes. This activity caused right-elbow pain. She had first experienced that pain in 2003 and it was not as severe as the pain in her left elbow.
52 Throughout this time, the plaintiff found the defendant was becoming more and more impatient with her need for light duties and eventually, on 31 August 2007, she was advised the defendant could no longer provide her with light duties.
53 The plaintiff agreed that was the end of the line for the defendant in terms of offering her any work, because she had pain in both elbows and shoulders. Two months after she had stopped work, her neck tightness and upper arm stiffness was no better.[17]
[17]T104
54 The plaintiff put in a claim dated 26 November 2007 for her neck, left shoulder, left elbow, and psychological condition.
55 The plaintiff was devastated at no longer being able to work, as she had always been a hard and loyal worker and had worked for the defendant for eighteen years. She was managing her 20 hours of lighter quality control work and she thought she was doing a pretty good job.[18]
[18]T25
56 Through rehabilitation, the plaintiff was offered retraining, and in February 2008, she started a real estate agent course, funded by CGU, which she completed over about six weeks. The long periods of sitting spent working on the computer and reading resulted in increased neck pain and spasm.
57 Notwithstanding her increased neck symptoms, after finishing the course, the plaintiff was very keen to work as a real estate agent, as being unemployed was detrimental to her mood and self-image. She started to look for jobs on the internet and at agencies in her local area.
58 The plaintiff did not have any confidence to be a real estate agent as her English was not that good but she was willing to give it a try.[19]
[19]T26
59 For a few weeks, the plaintiff applied for jobs, but nobody gave her feedback or answered her résumé application.[20]
[20]T126
60 Dr Monkivitch continued to prescribe Digesic and on occasion, doubled the dose due to the plaintiff’s increased pain.
61 When the plaintiff saw Mr Troy in February 2008 for her WorkCover claim, she found it difficult to turn her neck from side to side. She had pain into both shoulders.[21] She did the cooking and cleaning at her own pace, as is still the case. She watered the plants but did not do any gardening. She still waters the plants and does some pruning.
[21]T105
62 The plaintiff was then going dancing for an hour twice weekly. Now, her level of attendance is determined by how she feels. It is important to her to go out. She tries to go at least once a week, and there are times when she goes out more than once a week.[22]
[22]T107
63 When the plaintiff saw Dr Stern for her WorkCover claim in March 2008, she had constant pain in the left elbow radiating to the left shoulder. Her sleep was disturbed because of pain. The plaintiff agreed her problems were accurately set out in a Certificate dated 17 March 2008 which noted she had acute severe soft-tissue strain in left upper limb extensively, right elbow tendinitis and aggravated neck strain.
64 The plaintiff was looking for real estate agent work when she was involved in the transport accident.
65 On 28 March 2008, the plaintiff’s Nissan Pulsar was hit from behind whilst stationary (“the transport accident”). Following the accident, her car was towed away.
66 The plaintiff was taken from the accident scene to Dandenong Hospital by ambulance. As a result of the transport accident, she felt pain across the whole of her neck, far more extensive than the left-sided neck pain she had suffered as a result of the work injury. She also had low back pain. Shortly after the accident, she started to suffer from headaches.[23]
[23]T28
67 The plaintiff had x-rays at the Hospital, which she believed showed no abnormality, and she was discharged. In the following days, she saw Dr Ng, and then Dr Monkivitch. She was then suffering severe pain in the whole of her neck and in both shoulders.
68 The plaintiff continued to regularly attend her general practitioner and was prescribed pain medication. She had acupuncture and physiotherapy; however, her neck and bilateral shoulder pain continued.
69 The plaintiff also became very upset and despondent about her physical condition and the ongoing pain she was experiencing which did not seem to be going away. She felt useless because she was not able to work.
70 The plaintiff started a bookkeeping course in August 2008 to try and reskill. In October 2008, she obtained three hours per day of voluntary work at TLC Noble Gardens. She felt doing this work might help her get better and feel less depressed. Entering data into a computer, there were times when her neck pain would increase but she was eager to continue because she felt useful and needed for the first time in years.
71 After three months, the plaintiff was offered a part-time position of 20 hours a week at TLC in reception-type work. Dr Monkivitch agreed that she should try this role. The plaintiff was then having regular physiotherapy and hydrotherapy.
72 The plaintiff commenced this job in January 2009. By February 2010, she was working thirty hours per week, enjoying her job and managing reasonably well at home. She was enjoying gardening. She still enjoyed dancing and did as much as she could to try and stay out of the house. She denied feeling depressed at that time.[24]
[24]T29
73 From time to time, the plaintiff tried to increase her hours with variable results. She increased her hours to five-and-a-half hours a day, Monday to Friday.
74 The plaintiff had had periods of severe exacerbations of neck pain which resulted in having to take time off work and then reducing to 20 hours a week and slowly working back to normal hours.
75 In January 2010, the plaintiff tried to increase her hours to eight a day; however, her pain increased and she felt she was going backwards in her ability to cope with the situation so she resumed working 9am to 3pm.
76 TLC was very understanding in respect of the plaintiff’s neck and shoulder pain, and when she was in pain from spending too long filing or working on the computer, she was able to walk around and talk to residents, as that was also seen as part of her work. The plaintiff was then being paid $19 an hour.
77 As of January 2011 when she swore her first affidavit, the plaintiff still worked in that job answering the phone, filing archives and providing administrative assistance. She was happy at work and doing a good job. [25]
[25]T28
78 As of January 2011, the plaintiff suffered severe pain and stiffness across the back of her neck, extending to both sides and down to both shoulders.
79 From late 2008 to 2011, the plaintiff worked at TLC and, as time went on, she found increasing difficulty with her work. Initially TLC was very accommodating but as things progressed, the plaintiff was given more and more paperwork to do and more responsibilities, which she found difficult to manage with the neck and shoulder pain.
80 During 2011, the plaintiff was becoming more stressed about being able to carry out her work within the limited hours and she often had to stay back or take work home to complete it. She also suffered flare-ups of pain when she had to carry stacks or boxes of papers around the office.
81 There was also a problem at work as the plaintiff’s boss wanted to employ her niece in the plaintiff’s position.[26]
[26]T33
82 As of mid-2011, the plaintiff was working six-and-a-half hours a day, with lifting restrictions, up to the time she went to the United States.[27] In July that year, she had an eye problem affecting her work. This condition required laser surgery.
[27]T67
83 The plaintiff agreed she told her doctor on 1 September 2011 that she was thinking she may leave her job altogether.[28] She later denied having said this and she told her doctor that she would be happy to see her grandchildren, and asked her for a clearance to go overseas.[29]
[28]T33
[29]T117
84 Before the plaintiff went to the United States she was not really considering retiring. She was considering self-employment.[30] In July 2010, her daughter was keen on convincing the plaintiff to live in the United States. There was talk, not a final discussion, in this regard.[31]
[30]T115
[31]T116
85 The plaintiff agreed she considered resigning before she left for the United States. TLC really wanted her full-time, but physically she could not cope, even though she tried.[32]
[32]T135
86 The plaintiff continued to work until September 2011 with increasing pain but she was determined to keep going. She had no sick leave left as she had used it on occasions when her pain flared up[33] and she did not want to take any annual leave as she was saving it for a trip to see her daughter and grandson in the United States.
[33]T133
87 The plaintiff deposed in her second affidavit that in about September 2011, she went to the United States to visit her daughter and family. Whilst there, she suffered a great deal of pain and was not well. She was not able to return to Melbourne in time and subsequently lost her job. She returned to Melbourne in about November 2011 unemployed.
88 The plaintiff deposed in her third affidavit that whilst overseas, she experienced worsening neck and shoulder pain. She contacted TLC to advise she would not be able to return to work after four weeks’ annual leave and would be coming back to Australia a few weeks late. She felt she could not face going back to work yet when she knew that she would struggle with the work again due to pain. TLC told her not to bother returning.
89 The plaintiff stayed in the US longer than she had intended to as she was given the chance to travel more broadly. She emailed the defendant on 27 September advising of this situation and requested that her annual leave be extended from 17 October to 18 November without pay, from November. The request was declined as the defendant did not consider it feasible.[34]
[34]T34
90 In evidence in chief, the plaintiff advised she had in fact resigned from TLC.[35] She did not forget; she knew she resigned.[36] She was prepared to offer her services without pay on her return because she liked working at TLC.[37]
[35]T19
[36]T67
[37]T35
91 The plaintiff explained she did not have to exaggerate her position in her letter of resignation. She had nothing against TLC, and they had done a lot for her. She had a personal issue with the manager, but she did not have to tell TLC about that because she was very careful TLC continue to give her work. The manager was giving her grief, and the plaintiff was having a lot of pain already. It did not help her condition. The plaintiff was overloaded with work, and the supervisor was pushing her out, and she had to change her environment.[38]
[38]T71
92 When given the chance to travel more widely, the plaintiff did not want to stay at TLC where she was already struggling. She had pain, and the supervisor was making it worse, pushing her out, causing her stress – even though the supervisor said in her email she was looking forward to the plaintiff’s return. It was an unfriendly environment in which to work. It was part of the reason why the plaintiff resigned. She resigned because she would not be able to cope in four weeks’ time coming back to the same thing.[39]
[39]T73
93 The plaintiff was happy to return without pay, because if she was not being paid, TLC would be happy with her, suggesting she was using her time and effort. TLC expected more if they paid her. The plaintiff did not go and get another job because it was the only thing she knew. She wanted to do something to be productive.[40]
[40]T74
94 The plaintiff agreed she told Dr Entwisle that the stress about leaving her grandson in the United States increased her pain. She agreed the impression she gave in her affidavit was she ceased employment because while she was overseas her neck and shoulder pain worsened to the point where she could not go back to work. The plaintiff agreed in actual fact the reason she overstayed was because she wanted to spend time with her grandson.[41]
[41]T78
95 The plaintiff felt frustrated when her job was terminated after everything she had done for TLC. It was her first job and only job.[42]
[42]T126
96 On her return to Australia in November 2011, the plaintiff complained to her doctor of problems with her hands, knees and hips. She had been referred to a specialist rheumatologist, Dr Feletar, in early 2008 for treatment for her arthritic condition. She saw him for the following two years when she had flare-ups.[43]
[43]T37
97 The plaintiff agreed she did not make any mention of severe pain caused by rheumatoid arthritis in her affidavit, but then said it had nothing to do with her back and shoulder pain.[44]
[44]T68
98 The plaintiff started seeing her doctor for rheumatoid arthritis in the early 2000s.[45] She no longer takes medication for this condition, having ceased in May or August 2012. She last had a flare-up in mid 2103. The condition comes and goes and, when it comes on, she takes Celebrex.[46]
[45]T23
[46]T37
99 When the plaintiff has an arthritic flare-up, the pain lasts for 24 hours and then she can move it. She did not think she had problems in the summer. Arthritis of her fingers and toes have never stopped her working.
100 In about December 2011, the plaintiff went on to Newstart.
101 In about May 2012, the plaintiff enrolled in a Certificate III in Children’s Services. She was much more optimistic since starting that course and was hoping to finish the theory component by about August 2012 and find a placement after that. She was keen to gain experience in that field and was willing to work on a voluntary basis at least initially. She then registered with an agency recommended by Centrelink to help her try to find work.
102 As of August 2012 when she swore her second affidavit, the plaintiff suffered severe pain and stiffness across the back of her neck extending to both sides and down both shoulders. Prior to the transport accident, she had pain in the left side of her neck, left shoulder, elbow and arm. This pain was such that she was restricted in the work she could do, and also domestic duties. She was subject to regular exacerbations of neck pain.
103 The transport accident made these pains worse but also made the neck pain and stiffness spread across the whole of the plaintiff’s neck into her right shoulder. Her severe neck pain extending into both shoulders was then the most debilitating symptoms she had and those symptoms interfered with every aspect of her life.
104 The plaintiff had tried a variety of treatments, including acupuncture, physiotherapy and hydrotherapy, but none of them had any lasting effect on her pain and exercise did not help due to the constant tightness of her neck muscles.
105 The plaintiff was then regularly attending her general practitioner and taking two Digesic a day; Effexor, one tablet a day; Temazepam, one tablet at night, and Prednisolone for rheumatoid arthritis for the joints in her fingers and toes.
106 The plaintiff had problems with driving due to neck pain and stiffness and she had to make regular stops otherwise she would get very fatigued. She also had trouble turning her neck to observe traffic.
107 The plaintiff had trouble with home duties, including vacuuming and scrubbing the bathroom floor due to neck pain. Her sons often had to help her and they often got frustrated because she would half do jobs and they were left to carry the load.
108 The plaintiff had always enjoyed gardening and was able to do some limited gardening, such as pruning leaves. However, she could no longer do any re-potting or transfer plants around the garden as it caused too much neck and shoulder pain. The plaintiff washed her car about once a month. She found she often woke during the night due to neck pain.
109 The plaintiff deposed in August 2011 that prior to 2003-2004, she used to do a lot of rock and roll dancing. However she had to curtail that activity significantly due to problems with her neck and shoulders. She still occasionally danced but only for a very short time before a flare-up of pain caused her to stop, despite taking Panadol about an hour or two before she danced. The morning after the plaintiff danced, she felt increased pain in her neck.
110 In her August 2012 affidavit, the plaintiff deposed she had to give up rock and roll dancing because of problems with her knees.
111 The plaintiff had since started to do ballroom dancing, which was much slower and not as vigorous. She took it up after the accident as a social outlet to compensate for the loss of her ability to do rock and roll. However, that type of dancing had been a passion since she took it up in the early 1990s and she felt ballroom dancing was far less enjoyable.
112 As of August 2012, the pain in the plaintiff’s neck and shoulders had been present for over six years and did not feel like it was getting better despite treatment and medication. She was trying her best to get on with her life and have as full a life as she could. However, she had regular flare-ups of neck and shoulder pain which would restrict her employment options. Notwithstanding that, she was determined to keep going as long as she could, as she simply felt too demoralised when she was not being useful and working.
113 The plaintiff swore a further affidavit in May 2014. Save for a few minor changes, she confirmed the contents of her earlier affidavits were correct.
114 The plaintiff continues to have pain and restriction in her neck, having had neck pain since 2006 when she developed pain in her left arm extending up to her shoulder and the left side of her neck due to work activities.
115 After the transport accident, the plaintiff’s neck pain and stiffness increased and the area of pain spread across the whole of the neck and into both shoulders.
116 The plaintiff has had right shoulder pain since the transport accident, extending from her neck down into her shoulder. She still suffers from right shoulder pain and stiffness. She also developed headaches, with increased neck pain, and still suffers from neck pain and stiffness.
117 The plaintiff also had low back problems after the transport accident.[47]
[47]T38
118 The plaintiff has had shoulder pain since 2006 as a result of her work activities. Her left shoulder pain and stiffness worsened after the transport accident and she still suffers from left shoulder pain and stiffness.
119 In 2012, the plaintiff completed the Certificate III in Children’s Services (“the course”) with the aim to provide family day care in her home through the local council. She was optimistic about that kind of work. She felt it would allow flexibility to work within her capabilities. She thought she would be able to look after a couple of school aged children before and after school and that would be something she could do within her limitations. She renovated her house to comply with council requirements.
120 The course was meant to take ten weeks but it took the plaintiff six months to complete. She also was required to do 100 hours of placement and that involved working with babies and a significant amount of lifting which caused her neck and shoulder pain to flare-up and she had to slow down the pace at which she did the placement hours.[48]
[48]T136
121 When the plaintiff eventually finished the course and placement in December 2012, she requested her general practitioner certify her fit to undertake family day care for the council. However, Dr Monkivitch said she was not fit to look after very young children due to the lifting involved and she would only certify her for work with children over three.[49]
[49]T137
122 However, when the plaintiff informed the council of this situation, it advised it could not guarantee her work only with older children. This situation devastated her as she had been so optimistic about this being a real option for her to continue earning money and being useful.
123 The plaintiff did not apply for any after-school care work outside her home. She agreed looking after children in an after-school care program was something she could do.[50]
[50]T113
124 The plaintiff stopped looking for a job after she was turned down by the council. She does not have any more energy to do anything.[51]
[51]T40
125 The plaintiff has not looked for receptionist work recently because she was looking forward to being self-employed in the childcare industry and is not interested in that type of work anymore.[52]
[52]T58
126 Given the pain in her neck and shoulders, the plaintiff does not believe there is any job, even the reception work which she did at TLC, which she would be able to keep doing on a consistent basis without aggravating her neck and shoulder pain even more.
127 As a result, the plaintiff’s emotional state has been affected and she feels overwhelmed by the fact that the work injuries, and then transport accident injuries, have resulted in her life being so different from what it was and she expected it to be. She has lost her motivation and positive outlook.
128 If she was now offered 20 hours a week at TLC, the plaintiff would not accept it. She has no more motivation to do anything in her life, and everything seems to be a failure. She lost the job because of the pain and she loved TLC. She did not love her manager.[53] She had problems with archiving and rostering, as was noted on her certificates. She had a week off before she went overseas because she could not cope, and her neck was very sore.
[53]T132
129 The plaintiff was able to work thirty hours per week at Noble Manor where it was a better working environment and culture.[54]
[54]T133
130 With the help of her general practitioner, in May 2013, the plaintiff applied for a disability pension.
Current treatment
131 The plaintiff has continued to have treatment for her neck and shoulder and is seeing Dr Monkivitch about monthly. She has not been referred to a specialist about her neck.[55]
[55]T87
132 Dr Monkivitch continues to prescribe Effexor, of which the plaintiff takes 150mg every day. The plaintiff also takes Panadol Osteo, although not every day, but when the pain is worse. She finishes a 96-tablet box each month. She also takes paracetamol codeine when her pain is worse and uses about a box of 20 tablets every three months. She is careful about the painkilling medication she takes as it often upsets her stomach. She also takes other medication for blood pressure, cholesterol and thyroid.
133 The plaintiff sometimes takes Digesic for the pain in her shoulder, neck, arms, and elbow and lower back.[56] She takes Panadeine Forte at night, one tablet, almost every night, to relax.
[56]T44
134 The plaintiff continues to see the psychologist once a month.
Current condition
135 The plaintiff has pain every day in her neck and both shoulders, going down into her arms, and it gets worse in the cold weather. The pain stops her from freely using her arms to do things and she is restricted in many aspects of daily activity.
136 The right shoulder pain which started after the transport accident feels different to the neck pain.
137 The plaintiff disagreed at present her right shoulder is her biggest problem. Both shoulders are a problem. She agreed that being right handed, her right shoulder is pretty hard to deal with. However, she has done her best to work around all her problems.[57]
[57]T38
138 In the last couple of years, the plaintiff’s pain has remained and, in particular, her shoulder pain has required more treatment. Last year, she underwent a hydrodilatation of the left shoulder and more recently had cortisone injections in her right shoulder. Notwithstanding those procedures, her shoulders and arms remain very sore and her neck is also stiff and sore.
139 Prior to the transport accident, the plaintiff only had pain on the left side of her neck, her left elbow and arm. The accident made these pains worse but also made the neck and stiffness spread across the whole of her neck and into her right shoulder.
140 Before the transport accident, the plaintiff’s neck pain was a tolerable 6 out of 10. After the accident, it has been worse and more frequent; its frequency depending on how she had slept.[58] Her neck is no good today. The pain is constant. It is 10 out of 10, and with medication, down to 6 or 7.
[58]T126
141 Since the transport accident, the plaintiff has had back pain only when bending down and doing manual work. It affects her ability to lift things, but she tries to manage.
142 The plaintiff agreed she now has right elbow problems, with repetitive movements, as well as problems with her right shoulder. The right elbow pain gradually went from the left elbow to her right, but she could not date its onset.[59]
[59]T48
143 These problems all affect the plaintiff’s ability to do manual work, and they can at times cause quite debilitating pain. They also interfere with her ability to do jobs around the house and interfere with her sleep most of the time.
144 The right elbow, shoulder and back pain and arthritis when bad all interfere with the plaintiff’s ability to do gardening and dancing.
145 The plaintiff always has knee pain, although she had surgery of the right in 2001. It did not stop her working at TLC.
146 The plaintiff takes pain medications for all affected parts of her body.[60]
[60]T48
147 The plaintiff’s shoulder problem affects her no matter what she is doing, but she has been told by her doctor to move at her own pace. If she does not use her muscle it goes hard and she cannot move at all, so she makes a point from time to time to move. She has to stand up. She is very restless.[61]
[61]T53
148 In the last twelve months it has only been a problem with the plaintiff’s shoulder, neck and arms, but no problem with her lower back. She was unable to return to full-time work at TLC because of arm problems, mainly the left with repetitive duties. [62]
[62]T125
149 The plaintiff confirmed the level of her left shoulder difficulties deposed to. She still has flare-ups most of the time, and continues to have pain in the whole of the left arm and the left side of her neck, as has been the case since 2006.[63]
[63]T84
Activities – housework
150 The plaintiff finds it hard to do housework and gets help from her son and her partner. She still does a little bit of housework. She is not really a very good housekeeper. She just tolerates it.[64]
[64]T49
151 The plaintiff could not put her arms out to the side or in front of her 90 degrees. She hangs out the clothes bit by bit on the clothesline. She can put her hands up about head height with her arms bent in front of her.[65]
[65]T55
152 The plaintiff also gets help with the gardening. She can do a small bit of gardening herself and finds it does help distract her for short periods of time but she cannot do it for long. Her hobby is gardening and it helps her relax.[66]
[66]T50
153 The plaintiff also has trouble with tasks such as doing up her bra, putting on pants and cleaning herself after the toilet. All these daily actions cause pain in her arm and shoulder.
154 The plaintiff’s driving is limited to short distances only. She finds driving aggravates her neck pain when she has to look from side to side or over her shoulder to her blind spot. She is also quite nervous on the road since the transport accident. She is cautious and has significant anxiety about the prospect of having another accident.
155 The plaintiff has trouble sleeping on either side as it hurts her shoulders. When she sleeps on her back, her neck hurts after a short time. She sleeps restlessly and is constantly moving around to try and find a comfortable position. As a result, she often feels tired during the day.
156 The plaintiff’s right shoulder interferes with her sleep, because she cannot sleep on that side. She does not take specific sleeping medication, only Panadol Osteo and Panadeine Forte. She does not ask for medication because it does not work anymore and she was getting addicted to it anyway.[67]
[67]T51
157 The plaintiff mostly spends the day at home watching television. She no longer feels motivated to do things like before.
158 Before the plaintiff met her partner in December 2011, she was not happy and she was lonely, and lacking social interaction, and that caused her to be upset. Her new partner makes her happy and they do things together and it has improved her social life.
159 Once a week, the plaintiff goes with her partner rock and roll dancing and for dinner. Although she does still dance, she is unable to do so as freely or for as long as before her neck and shoulder pain came on. She only dances with her partner as he is aware of her injuries and limitations and how to dance with her without hurting her.
160 The plaintiff goes rock and roll dancing on Friday nights. She agreed her knee problems had interfered with her dancing ability from time to time. She has to sit down but she has not stopped dancing because of her knee. She stopped because of everything: her arms; her neck; her knee. When her knees are bad she cannot go down stairs or walk upstairs.[68]
[68]T52
161 The plaintiff used to go rock and roll dancing four or five times a week before she hurt herself.
162 The plaintiff now goes dancing on a Friday and is on the dance floor for a song and a half and she then just sits down and watches.[69] Ballroom dancing is too hard on her shoulders, having to raise her arms. Dancing was less frequent after the work injury. She still attends dances and she takes painkillers “so everyone is happy”.
[69]T128
163 The plaintiff has tried over the years to remain positive no matter what life throws at her. She has tried to keep her chin up and keep looking for different work options as working has always been a big part of her self-esteem. She now feels as if there is nothing that she would be able to cope with as all things she has tried have been unsuccessful.
164 The plaintiff has been on a number of overseas trips in recent years, photographs from which were posted on her Facebook page. When asked if her happy face in these photographs gave a false impression, she said she would not put a photograph of herself crying on Facebook. She puts photographs on because she wants her family to see she is happy.[70]
[70]T58
165 There was a photograph of the plaintiff at a rock and roll party at which she agreed she had danced.[71] She agreed she had a good time at social occasions where she was photographed.
[71]T118
Video surveillance
166 The plaintiff was shown film taken on 14 September 2012 of 45 minutes’ duration which simply showed her attending a number of shopping centres.
167 The plaintiff was shown sitting in the car at the kids’ club as part of her placement in the course.[72] She was later seen in the Bunnings store at Keysborough. She was shown at times reaching up and inspecting products. She later went to the Amcal Pharmacy at Parkmore Shopping Centre.
[72]T63
168 The plaintiff agreed at one time she had her left hand on the top of her head and had a bag hanging from her arm. She was later shown at Parkmore fruit and vegetable market hand-picking products, and later, at a Coles supermarket putting items into a trolley.
169 The plaintiff agreed she was shown moving her arms, particularly her left, more freely than demonstrated in the witness box. When it was suggested to her she maximised her problem, she said every day it depended on how she felt, if it is her left or right arm that is worse. She then compensates with the other arm. She works through the pain which is variable. She cannot predict what it is going to be like.[73]
[73]T65
170 The plaintiff confirmed she was at Bunnings buying a child lock for her gate. She had tradespeople do her renovations. She did a little bit of cleaning up after they left.[74]
[74]T114
171 The plaintiff put the four bags of shopping on the ground and took only one with her, because her son took the others. She asked him to help.
172 The plaintiff can walk to the shop. It is one way of putting her in a relaxed mood; one way of getting out of the house. It is hard to push a trolley.
173 The plaintiff agreed that her résumé was inaccurate when it described she had university qualifications. She put that detail in her résumé to make it more colourful and help her find a job. It did not mean she was “trying to manipulate [herself]” to find a job.[75]
[75]T80
174 The plaintiff agreed she did not need a university degree to do administration work. She included that detail because she wanted to show that she could do better jobs than reception work. It was not not telling the truth. She just wanted to get the job. Putting dancing in her résumé did not mean she was doing it; she would love to do it.[76]
[76]T82
Summary of Taxation Returns
Year Gross GW 2003 $39,913.00 from Ensign Laboratories Pty Ltd (ABN 11 004 395 242)
$768 2004 $40,647.00 from Ensign Laboratories Pty Ltd (ABN 11 004 395 242)
$782 2005 $43,006.00 from Ensign Laboratories Pty Ltd (ABN 11 004 395 242)
$827 2006* $42,548.00 from Ensign Laboratories Pty Ltd (ABN 11 004 395 242)
$818 2007* $39,154.00 from Ensign Laboratories Pty Ltd (ABN 11 004 395 242)
$753 2008* $35,989.00 from Ensign Laboratories Pty Ltd (ABN 11 004 395 242)
$692 2009* $18,792.00 from Ensign Laboratories Pty Ltd (ABN 11 004 395 242)
$10,042.00 from the Trustee for Great Oaks Trust (ABN 92 939 053 758)
Total: $28,834.00
$555 2010 $26,643 from the Trustee for Great Oaks Trust (ABN 92 939 053 758)
- 2011 $30,074 from the Trustee for Great Oaks Trust (ABN 92 939 053 758)
- 2012 $11,100 from the Trustee for Great Oaks Trust (ABN 92 939 053 758)
- 2013 - - 2014 - -
* DOA WorkCover accident: July 2006 – Received some weekly payments
- DOA Transport accident: March 2008 – Might have received LOE payments after this again.
The Plaintiff’s medical evidence
175 The plaintiff was assessed at Cedar Court in October 2006 in relation to her work-related complaints of neck and left shoulder and arm pain. She was then working three hours per day, five days per week and it was recommended that her hours be further reduced.
176 A rehabilitation program commenced at Cedar Court in December 2006.
177 In September 2006, Dr Monkivitch advised CGU the plaintiff continued to struggle with left limb and neck repetitive strain injury and needed a TENS machine.
178 Dr Monkivitch reported in May 2008 that the plaintiff had recovered by 50 per cent at the time of her whiplash injury, and was undertaking retraining and seeking a part-time position with restrictions of no repetitive heavy manual handling.
179 At the time of the transport accident, the plaintiff suffered a whiplash injury affecting her neck, thoracic and lumbar spine and jarring of her upper limbs. The impact had markedly exacerbated her initial improving injury and caused her extended bilateral muscle pain and spasm of the neck, shoulders and full spine, and she had restricted movement of all affected areas.
180 At that stage, the plaintiff was struggling with the extended fibromyalgic pain and subsequent depression and insomnia, and she was unfit to return to any work activities. Given the plaintiff’s age, pre-existing CPS and limited education and skills base, Dr Monkivitch thought her prognosis was extremely guarded.
181 As of January 2009, Dr Monkivitch thought the plaintiff’s fibromyalgic pain syndrome of the neck and upper left limb had certainly stabilised, but may well continue to cause her variable long-term discomfort. She thought the prognosis for the future should be unchanged unless the plaintiff suffered any further physical insult to the area.
182 Dr Monkivitch noted in July 2009, the plaintiff was recovered well enough from her Work Cover injury to be able to return to the workplace in January 2009 as certified. The modifications on the Certificate were to cater for her Transport Accident Commission related injuries of neck and back pain.
183 Dr Monkivitch advised that the plaintiff had managed to continue working since that time as a receptionist for 20 hours a week. She continued to have daily neck and back stiffness and required frequent posture changes.
184 In November 2012, Dr Monkivitch reported that the plaintiff had developed rheumatoid arthritis since the transport accident, in which she developed whiplash to the neck and muscles of the shoulder girdle. Her condition had stabilised and there was no role for surgery.
185 Dr Monkivitch thought the plaintiff had a realistic capacity for employment, as long as it involved light physical duties only. She noted the plaintiff had suffered moderate restriction in her private activities due to her whiplash injury and had been restricted in her capacity to undertake housework and physical leisure activities.
186 Dr Monkivitch completed a report for Centrelink in May 2013. She noted the condition with the most impact was psoriatic arthritis, in relation to which the current treatment was pain management and there had been three years of Prednisolone and Celebrex to 2012 and Methotrexate for twelve months.
187 The current symptoms of that problem were pain and swelling in the hands and left knee. There were variable joint pains with swelling. The plaintiff was not able to manually handle or use her hands repetitively. She was unable to stand for protracted periods.
188 The second condition was post transport accident fibromyalgia, neck and shoulder pain, in relation to which the plaintiff was receiving massage therapy and had had hydrotherapy, acupuncture and physiotherapy for two years after the accident. The further treatment proposed was maintenance massage.
189 The current symptoms of the condition were variable neck, shoulder and elbow pain. It was described as post whiplash injury. The plaintiff was not able to perform repetitive manual handling. Dr Monkivitch also noted there was left retinal detachment or visual floating.
190 In May 2014, Dr Monkivitch reported that the plaintiff’s neck and shoulder injuries were as a result of the transport accident and subsequent whiplash. The injuries were soft tissue in nature and the extent severe given the persistence of the plaintiff’s pain and disability despite the many years that have since passed and the treatment undertaken. Such treatment included many soft tissue treatments including physiotherapy, acupuncture, myotherapy, cortisone injections and NSAIDs.
191 Dr Monkivitch thought the plaintiff was suffering from a chronic myofascial pain syndrome which had in fact deteriorated since her last report. The plaintiff now had imaging proven bursitis and tendonitis involving both shoulders.
192 Dr Monkivitch thought the plaintiff had no present capacity for work and at no time in the future, and that her personal and recreational life had been markedly affected by her chronic persistent pain and physical restrictions.
193 Dr Monkivitch also thought the plaintiff also suffered chronic intractable depression which was triggered by her original accident and had fluctuated in intensity since. That was solely due to physical levels of pain and restricted physical ability to enjoy her life.
194 The plaintiff was involved in a pain management program at Epworth from 8 December 2006 to 13 March 2007. On discharge, she reported her symptoms had remained unchanged over the program however she reported an improved management of her symptoms.
195 Dr Palit at Epworth wrote to the plaintiff’s general practitioner in May 2007. At that stage, she thought the plaintiff’s improvements could in no way be guaranteed and would be relatively slow, if they occurred.
196 On post discharge review in July 2007, the plaintiff reported an increase in her symptoms since previous review and she was no longer managing her daily tasks despite the use of techniques and was relying on her sons to complete the majority of activities. She also reported she no longer engaged in leisure activities such as dancing because of feelings of guilt that if she danced she could increase her work hours. She felt she was being watched to monitor her attendance at this class.
197 Mr Eden Law, physiotherapist from Springvale Spinal & Sports Physiotherapy, first saw the plaintiff in July 2008, when the chief complaints were neck and left scapular pain and lower back and left thigh pain.
198 The plaintiff gave no history of neck or back injury prior to the transport accident and mentioned a work-related rotator cuff injury to her shoulder, from which she had partially recovered.
199 Having last seen the plaintiff in February 2009, Mr Law concluded she suffered from a whiplash injury to the neck and disc strain to the lower back, and had made a partial recovery with physiotherapy and gymnasium exercise.
200 The plaintiff attended the Emergency Department at Dandenong Hospital following the transport accident.
201 On examination, the plaintiff had decreased strength in the left arm, but that was not acute according to her. There was midline tenderness in the cervical spine. The thoracic spine was normal, but there was midline tenderness in the lumbosacral spine.
202 The plaintiff was given oral analgesics and her pain was much improved, so she was discharged home for follow-up with a local doctor.
203 Psychologist, Ms Gerryts, saw the plaintiff thirteen times between July 2013 and June 2014.
204 There was a history of the upper left limb injury from work, retraining in real estate and doing voluntary work in a nursing home helping the plaintiff’s mental health state and she started to feel better. The plaintiff got a receptionist job having retrained in Certificate III in Financial Services.
205 Ms Gerryts incorrectly noted the transport accident occurred 28 March 2009 (2008). Ms Gerryts also noted that work stress and unfavourable working circumstances led the plaintiff to resign from her position in October 2011.
206 Ms Gerryts thought the onset and development of emotional symptoms, including depressed mood, appeared to be in response to an identifiable stressor and was experienced in the context of possible repetitive work situations over many years.
207 The plaintiff scored highly on the Kessler psychological distress scale and the depression anxiety stress scale. It was noted the ongoing issues related to the plaintiff’s medical conditions caused her undue distress and had changed her life dramatically. The high score on the depression test followed a presentation in the context of her heightened negative emotions triggered by the ongoing difficulty in managing her medical condition.
Extracts from subpoenaed records
208 On 18 May 2009, Dr Monkivitch certified the plaintiff was physically and mentally able to increase her working hours up to 25 hours a week in a non-physically heavy position.
209 The plaintiff attended Southern Health Emergency on 7 January 2010 with neck pain, vertigo and an episode of conscious collapse. She also attended on 6 May 2010 with neck pain and dizziness.
210 Dr Monkivitch provided a Centrelink Certificate setting out the plaintiff was unfit for work from 7 to 21 May 2010.
211 Dr Monkivitch certified the plaintiff had a medical condition and would be unfit for work from 13 July to 16 July 2010. She certified her unfit on 4 March 2011 noting the plaintiff was not able to increase her hours and was advised to avoid archiving in the future due to her chronic muscle disorder.
212 On 8 April 2011, Dr Monkivitch advised that the plaintiff had a history of upper limb and neck muscle pain and she was not able to lift archival boxes but was able to file and sort paperwork for archiving.
213 Nabenet carried out a work site assessment in April 2011.
214 In June 2011, Dr Monkivitch certified the plaintiff had a medical condition and would be unfit for lifting archive boxes but was able to continue filing and sorting of archives with increased hours to six-and-a-half hours a day, five days a week. She certified the plaintiff unfit for work from 30 August to 9 September 2011 because of a medical condition.
Investigations
215 Dr Monkivitch organised an x-ray and ultrasound of bilateral shoulders on 31 March 2013.
216 It was reported there was right subacromial bursitis – ultrasound-guided injection may provide symptomatic relief. The appearance of the right rotator cuff interval raised the possibility of adhesive capsulitis – a fluoroscopic-guided shoulder hydrodilatation may be helpful. Mild tenosynovitis involving the long head of biceps tendons bilaterally. There was capsular thickening of the left acromioclavicular joint and probe tenderness was identified – an ultrasound-guided steroid injection was suggested.
217 There was a right shoulder injection on 19 June 2013.
218 There was an x-ray of both shoulders on 8 October 2013 and an ultrasound of the right shoulder. Findings were suggestive of degeneration of the right rotator cuff associated with biceps tenosynovitis and subdeltoid bursitis. It was noted a steroid injection into the subdeltoid bursa was worth considering.
219 There was an ultrasound of the left shoulder in October 2013. It was reported the appearance was consistent with adhesive capsulitis and no rotator cuff tear.
220 There was an ultrasound-guided right subacromial bursal injection in October 2013.
The Plaintiff’s medico‑legal evidence
221 Mr Khan, orthopaedic surgeon, examined the plaintiff in May 2010.
222 At that time, the plaintiff had been able to obtain employment in alternative duties as a receptionist at TLC.
223 On examination, the plaintiff complained of neck stiffness. She slept poorly due to pain. These symptoms flared up frequently and they were not present when she had been receiving treatment funded by Work Cover.
224 Movements in the neck were slowly executed and generally slightly limited. The plaintiff had pain referred down from the top of the thoracic spine and top of both shoulder blades to the top of her shoulders, more to the left than right. She had ache in the left shoulder and in the area of the left elbow that had been present following the Work Cover injury.
225 Movements of both shoulders were slightly restricted.
226 Mr Khan noted the plaintiff had recently been diagnosed as having rheumatoid arthritis, affecting the joints of her fingers and toes.
227 Mr Khan noted the plaintiff was making partial improvement from the left arm and shoulder injury with some referred pain in her neck when she was involved in the transport accident. Following that accident, he considered she had sustained a musculoskeletal and ligamentous strain to her neck and back and flared up pre-existing multilevel disc degenerative disease in her spine. The plaintiff continued to get referred pain from her neck down to both shoulder blades, the left worse than the right, the back pain more to the left than the right.
228 Mr Khan then thought the plaintiff was fit for suitable work but unfit for any work requiring excessive bending, twisting and turning suddenly of her neck or lifting weights more than 5 kilograms.
229 From the information available to him, Mr Khan thought the plaintiff had sustained injuries to her neck and lower back, mainly in the transport accident, and he thought she had some residual pain in the left elbow and shoulder as a consequence of the Work Cover injury. She also had arthritic symptoms in the figures of both hands and feet which were under reasonable control.
230 Mr Khan did not think the plaintiff was totally incapacitated for her previous employment. He thought she could perform suitable alternative duties within the restrictions he had mentioned and could cope with her previous employment in similar terms.
231 As a result of her transport accident injuries, he thought the plaintiff’s personal and domestic life had been compromised and those injuries affected her recreational pursuits and hobbies significantly.
232 In conclusion, Mr Khan thought the plaintiff had sustained a fairly severe musculoskeletal and ligamentous strain to her cervical spine and lumbar spine in the transport accident, causing the flare-up of pre-existing degenerative changes in her neck and back, not associated with any radiculopathy. He thought she had fairly extensive soft tissue and musculoskeletal trauma with intermittent flare-ups of pains in the facet joints in her lower back.
233 Mr Khan considered the plaintiff had had been left with significant partial permanent impairment of function and had been left with restrictions on a permanent basis in relation to the transport accident.
234 The plaintiff was examined by Dr Thomas, initially in March 2013, and later in March the following year. The history recorded by him was incorrect in that he understood the plaintiff to be working at TLC at the time of the transport accident.
235 The plaintiff told Dr Thomas that prior to the transport accident, her main issue was left upper limb pain from the shoulder to the neck and thereafter, she developed more neck pain and associated headaches which were not present prior thereto.
236 On the first examination, the plaintiff reported neck pain was the main issue for her, pain more to the left than the right side and many headaches on a regular basis.
237 Dr Thomas thought the transport accident involved a worsening of the plaintiff’s neck pain and development of physical signs including hyperalgesia to the left side of the neck, in the back of the scalp and the left shoulder blade.
238 Dr Thomas thought the plaintiff had residual problems relating to both the work injury and transport accident with the former primarily with the left arm and the latter primarily with the cervical spine, albeit worse on the left than the right.
239 In Dr Thomas’ view, the plaintiff presented very much in an organic manner and there was no psychological overlay he could detect.
240 Dr Thomas considered the plaintiff did not present as having any realistic capacity for any work given her previous work history, education, residual problems and the like.
241 On re-examination in 2014, the plaintiff had pain in both shoulders and elbows and headaches primarily in the back of her head and neck.
242 Dr Thomas thought the plaintiff had worsened since he last saw her, developing bilateral shoulder problems, left worse than right, and the rheumatoid arthritis appeared to still be symptomatic.
243 Dr Thomas thought it was certainly possible in the absence of the pre-existing left upper limb CPS that the transport accident would not have left the plaintiff with ongoing symptoms.
244 Dr Thomas noted whiplash and associated disorder does involve the neck and shoulder girdles. At times, there is the development of capsulitis and frozen shoulder. This can also, however, occur in the setting of pain in an upper limb such as the plaintiff’s pre-existing left elbow chronic lateral epicondylitis. In any case, both can predispose to this condition.
245 Dr Thomas thought the plaintiff did not have a realistic capacity for employment. If not for the transport accident, he thought she would have had capacity to continue to work in reception. Complicating the two injuries was the development of other medical problems including arthritis which, in itself, also added to her level of disability.
246 Dr Thomas concluded it was reasonable to indicate the plaintiff was compromised personally, recreationally and to a moderate extent. He thought the primary issue related to the subsequent transport accident and the worsening disability that stemmed from it.
247 Mr Kossmann, orthopaedic surgeon, examined the plaintiff initially in May 2013, and later in March 2014.
248 On initial examination, the plaintiff told him she suffered an injury to her left shoulder at work and aggravated it in the transport accident.
249 The plaintiff told Mr Kossmann she was not working at the moment but was looking for a job. She was caring for herself in her house, she looked after the garden and she enjoyed dancing at a social level.
250 Mr Kossmann diagnosed pain and movement restriction of the left shoulder on the basis of ongoing subacromial bursitis, healed left tennis elbow, pain and movement restriction right shoulder, pain cervical spine and post-traumatic stress syndrome.
251 Mr Kossmann noted that there was an injury to the left shoulder in the work incident and aggravation in the transport accident, and also neck injury.
252 Noting the left shoulder and neck injury, Dr Thomas commented, interestingly, the plaintiff now had a more decreased mobility in her right shoulder than her left.
253 Regarding her spine, Mr Kossmann thought the plaintiff may have to undergo further maintenance therapy, particularly if she suffers from pain issues in her neck.
254 Mr Kossmann thought there was a good chance the plaintiff’s symptoms, in particular her movement restriction and pain issues in her upper extremities, would increase and her mobility decrease.
255 Mr Kossmann considered the plaintiff had a work capacity for all work where she did not have to engage in physically strenuous work or work with her upper extremity on a constant basis. He thought working as a receptionist was adequate noting, however, she had other qualifications such as in childcare and real estate.
256 He believed that the plaintiff should undergo a vocational assessment to find out which work she may qualify for best. However, he thought she would have difficulties finding work in a competitive work environment.
257 In Mr Kossmann’s view, the plaintiff’s injuries to her neck and both shoulders had an impact on her social, domestic and recreational activities and he thought she was suffering from Post-Traumatic Stress Disorder (“PTSD”) and should be referred for treatment in that regard.
258 On the re-examination in March 2014, the plaintiff complained of bilateral shoulder pain.
259 The plaintiff told Mr Kossmann that she looked after herself, her household tasks and she took care of her garden. She went out for dinner and enjoyed dancing with her partner.
260 Mr Kossmann thought the plaintiff’s prognosis was poor, noting that she continued to suffer from bilateral shoulder pain and significant movement restrictions.
261 Mr Kossmann noted that the plaintiff’s cervical spine pain seemed to have settled compared to the examination in May 2013. However, he believed she would require ongoing treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. He thought she still suffered from PTSD.
262 In summary, Mr Kossmann thought the following injuries were caused or aggravated by the transport accident – pain and movement restriction in the left shoulder on the basis of adhesive capsulitis and in the right shoulder on the basis of subacromial bursitis; healed tennis elbow; pain cervical spine on the basis of minor narrowing of C5-6 with minimal lipping; and signs of PTSD. He thought the plaintiff’s injuries had substantially stabilised.
263 Mr Kossmann thought the plaintiff had no work capacity and it was likely that she would never return to work in her lifetime. He noted despite her severe bilateral shoulder condition, she is still motivated to go out and dance and he strongly recommended she continue with such recreational and social activity.
264 The plaintiff was examined on three occasions by Dr Serry, psychiatrist.
265 When seen in February 2010, the plaintiff was then working as a part-time receptionist, 30 hours a week, and she particularly enjoyed her work. She managed reasonably at home by doing things slowly and she was assisted by her sons.
266 Dr Serry noted the plaintiff had pushed herself to maintain her social activities. She enjoyed dancing and she tried to do as much as she could to try and stay out of the home and she enjoyed gardening a great deal.
267 The plaintiff was then taking 75 milligrams of Effexor, previously having been prescribed 150 milligrams.
268 Dr Serry noted the plaintiff’s psychological reaction to the transport accident needed to be seen in the context of her pre-existing WorkCover claim, in relation to which she had chronic pain in her left shoulder and arm.
269 Thus, at the time of the transport accident, the plaintiff was feeling particularly low, having described being anxious and depressed, not because of pain but because of treatment at the hands of the defendant.
270 The plaintiff said the transport accident made her depression worse for the eight months after, but that had improved progressively since her involvement with the nursing home where she worked as a volunteer, now a worker.
271 The plaintiff denied feeling depressed and her Effexor dose had been reduced. She pushed herself and as such was motivated and she was interested and able to enjoy herself.
272 Dr Serry noted that the plaintiff had previous symptoms consistent with an Adjustment Disorder with Anxiety and Depression secondary to her WorkCover issue. It appeared as though the sense of intimidation by the employer was of more concern to her than the chronic pain that she was experiencing as a result of work.
273 Dr Serry thought the psychiatric illness resulting from the transport accident was a combination of a Pain Disorder associated with psychological factors and the plaintiff’s general medical condition and a Post-traumatic Anxiety Syndrome, not a full blown PTSD.
274 From a psychological point of view, Dr Serry thought the plaintiff’s anxiety and depression had settled and her previous antidepressant dose had been able to be reduced; however, she did have some persistent post-traumatic anxiety features and she also had more extensive and widespread pain consistent with a Pain Disorder.
275 Dr Serry noted the plaintiff impressed as a determined and positive individual who made every effort to overcome the combined impact of her work and transport accident related injuries.
276 Dr Serry thought the plaintiff was not currently incapacitated for her present work but he doubted she could return to any work which was more physically demanding. He thought the injury had stabilised.
277 On re-examination in April 2013, the plaintiff was still on 75 milligrams of Effexor.
278 The plaintiff had not improved, although the severity of her pain had fluctuated. Since the previous assessment, she reported pain in the neck, bilateral shoulder pain and left arm pain.
279 The plaintiff told Dr Serry that with her ongoing pain and stress of dealing with people face to face, she reached the point where she could no longer tolerate working and stopped in September 2011.
280 On this examination, Dr Serry thought the psychiatric illness resulting from the transport accident was Chronic Pain Disorder associated with psychological factors and the general medical condition and a Chronic Adjustment Disorder with anxious features, including features of traumatisation but not a full blown PTSD.
281 Dr Serry noted the plaintiff remained physically symptomatic with ongoing pain and limitation and had been unable to return to her full pre-morbid level of functioning. That being said, however, he noted she was determined to manage to the best of her ability and had, since the time of the previous assessment, completed the childcare course. She was looking for work and tried to do the best she could at home.
282 Dr Serry thought the prognosis was mixed. He noted the plaintiff is a determined and motivated individual but she did remain symptomatic a number of years post accident. He noted the plaintiff’s attempts to return to work in a different area of childcare and that should she succeed in that regard, that may be beneficial to her overall mental state.
283 Dr Serry then thought the bulk of the plaintiff’s presentations related to the transport accident and much less to the work injury, apportioning as best he could 80/20.
284 Based on the plaintiff’s work history, education, pain levels, medication and nature of her injury, Dr Serry thought she had a limited but realistic capacity for employment, noting she had completed the course and may well be able to undertake some work in that area. Any work in that regard would need to be in a relatively low stress environment with limited physical demands.
285 On the most recent examination in March 2014, the plaintiff described ongoing problems with bilateral shoulder pain, neck pain and bilateral arm pain. She was then taking 150 milligrams of Effexor.
286 Dr Serry noted the plaintiff previously had been on medication for rheumatoid arthritis but that medication was ceased by her rheumatologist.
287 The plaintiff advised that, if anything, since the last examination, her depression had become more marked. She was constantly low in mood, the severity of depression fluctuating. She reported low motivation and generally reduced levels of interest and found it hard to enjoy herself. She told Dr Serry dancing and gardening helped distract her but any pleasure was very short term. As well as feeling depressed, she stated she had remained stressed and anxious much of the time, her anxiety fluctuating.
288 Dr Serry again diagnosed Chronic Pain Disorder associated with psychological factors and the plaintiff’s general medical condition, and a moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation.
289 Dr Serry thought both conditions were caused by the workplace accident and the transport accident, the latter significantly exacerbating the effects of the first. He noted the specific traumatisation features the plaintiff reported were mainly related to the transport accident.
290 Dr Serry then thought it unlikely the plaintiff’s condition would improve to any significant extent in the future and there may be some deterioration given an ongoing nexus between the physical and psychiatric aspects of her presentation.
291 Based on the plaintiff’s work history, education, pain levels, current medication and nature of injury, Dr Serry would be pessimistic about her having any realistic capacity for employment and he thought her injuries had significantly compromised her personal and recreational pursuits.
Ensign medico-legal evidence
292 Mr Michael Troy, general surgeon, examined the plaintiff in February 2008, a month prior to the transport accident.
293 The plaintiff told him it was difficult to turn her neck from side to side as it was so stiff. She had pain out into both shoulders, the left particularly, and there was a tingling sensation in the left elbow.
294 The plaintiff said she did cooking and cleaning at her own pace and did not do any gardening. She went out dancing for an hour twice weekly, and if she went shopping, she took a trolley and carried small articles in a little bag.
451 The plaintiff then undertook the real estate agent’s course and was actively looking for work when the transport accident occurred.
452 Dr Monkivitch thought the plaintiff had improved by 50 per cent at the time of the transport accident. As of May 2008, Dr Monkivitch considered the plaintiff had a CPS and was struggling with extended fibromyalgic pain and subsequent depression and insomnia.
453 The plaintiff aggravated her neck condition in the transport accident. Thereafter, she suffered referred pain to her right shoulder, as well as the left, as was the case after the work injury.
454 Following the transport accident, the plaintiff was not referred for specialist treatment. Investigations were carried out in 2008 of both the cervical and the lumbar spine.
455 The plaintiff had physiotherapy from Mr Law at Springvale from July 2008 to February 2009.
456 The plaintiff continued under the care of Dr Monkivitch. In July 2009, she reported that the plaintiff was recovered well enough from her work injury to return to work in January that year and modifications imposed were to cater for her Transport Accident Commission related injury of back and neck pain.
457 Of recent times, the plaintiff has had shoulder investigations, together with cortisone injections in the right shoulder on two occasions in 2013, and also a hydrodilitation of the left shoulder that year. These procedures did not relieve the plaintiff’s pain.
458 As Counsel for the plaintiff submitted, the shoulder problem is due to referred pain from the neck. Mr Dooley shared this view and did not consider there to be a separate shoulder injury.
459 The plaintiff’s pain-relief medication intake is limited, currently taking Panadol Osteo on an ‘as needed’ basis, with other medication at times.
460 It was not submitted on the plaintiff’s behalf that the transport accident injury would not have occurred but for the work injury or that the effects of the transport accident are more severe because of the work injury.[88] Further, it was not submitted there was a serious injury in relation to the work injury, as it had created a vulnerability and was an ongoing factor in the plaintiff’s current presentation.[89]
[88]See Altona Bus Lines v Lococo [2002] VSCA 159 at paragraph [12]
[89]See RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51
461 Dr Thomas is the only medical practitioner who placed more emphasis on the work injury, noting that in the absence of the pre-existing left upper limb CPS, the transport accident would not have left the plaintiff with ongoing symptoms.
462 Otherwise, there was no medical support for there being any ongoing involvement of the work injury in the plaintiff’s current physical condition.
463 Dr Monkivitch has focussed on the transport accident injuries in her reports, noting in May 2009, the work injuries had recovered sufficiently for the plaintiff to return to work. Restrictions imposed by her related to the transport accident injuries.
464 From the information available to him, Mr Khan thought the plaintiff had sustained injuries to her neck and lower back, mainly in the transport accident. He thought she had some residual pain in the left elbow and shoulder as a consequence of the WorkCover injury.
465 As of June 2008, Dr Bowles thought the plaintiff’s current incapacity was not work related but a function of the transport accident and psychological decompensation.
466 Professor Hart thought the effects of work on the plaintiff’s neck had ceased as of October 2012.
467 Counsel for the defendant submitted the plaintiff’s neck and left shoulder condition do not have a substantial organic basis.
468 In Meadows v Lichmore Pty Ltd,[90] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[90][2013] VSCA 201 at paragraphs [21]-[22]
469 The diagnosis of a CPS was made by Dr Monkivitch as early as 2008. Her current description of the plaintiff’s condition is a myofascial pain syndrome. The preponderance of medical opinion is to a similar effect.
470 On examination in 2008, Dr Bowles did not find any particular condition, but again, symptoms and signs suggestive of psychosomatic issues; however, there may be some mild underlying residual whiplash associated with low back strain problems.
471 Dr Fraser thought the most striking feature on physical examination was the overreaction, suggesting exaggeration of the plaintiff’s symptoms and signs. He had no doubt the symptoms and signs were now largely due to non-organic factors. He thought the plaintiff may have sustained soft tissue strains as a result of the transport accident, but, if so, they had long since resolved, and she required no further treatment.
472 In April 2014, Mr Dooley confirmed the plaintiff had suffered a soft tissue injury to the neck and lumbar spine, involving some musculoligamentous damage and some aggravation of pre-existing degenerative disc disease, and in respect of the cervical spine, pre-existing soft tissue injuries. However, in his view, the constancy and intensity of her ongoing pain and described disability was greater than one would expect to see for her condition. He believed the plaintiff had a psychological reaction to her situation and that that reaction significantly influenced her ongoing symptoms.
473 Professor Hart thought the findings on examination seemed out of proportion to the shoulder pathology. He noted the plaintiff presented with multiple joint pains. He considered that capsulitis was a relatively unlikely diagnosis. In his opinion, the plaintiff had developed a CPS affecting multiple joint areas.
474 Although Mr Khan found the plaintiff has sustained a fairly severe musculoskeletal and ligamentous strain to her cervical spine in the transport accident, he noted the plaintiff had associated non-organic signs of depression.
475 Whilst Dr Thomas thought the plaintiff presented in very much an organic manner, he did describe her as suffering from a pre-existing left upper limb CPS.
476 Mr Kossmann simply described the plaintiff’s condition as bilateral shoulder pain and significant movement restrictions. On recent examination in March 2014, he noted that the plaintiff’s cervical spine pain seemed to have settled compared to the examination in May 2013.
477 Mr Kossmann is in the minority diagnosing specific shoulder conditions. He also thought the plaintiff she still suffered from PTSD.
478 On his third examination, Dr Serry again diagnosed Chronic Pain Disorder associated with psychological factors and the plaintiff’s general medical condition, and a moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation. He thought both conditions were caused by the workplace accident and the transport accident, the latter significantly exacerbating the effects of the former.
479 On examination in February 2014, Dr Entwisle did not share Dr Serry’s diagnosis of a Chronic Pain Disorder. He thought that the plaintiff’s non-organic complaints related to the myofascial pain syndrome, which was longstanding. He diagnosed a Chronic Adjustment Disorder with Depressed and Anxious mood of multi-factorial origin.
480 Taking into account all the evidence, I am not satisfied the plaintiff’s left shoulder and neck condition have a substantial organic basis.
481 In any event, I am not satisfied, as at the date of hearing, the plaintiff has a serious injury in relation to either her neck or the left shoulder.
482 As mentioned before, treatment has been conservative and minimal, both after the work injury and the transport accident.
483 The plaintiff still engages in a wide range of activities including dancing, gardening and travel, and socialising with her new partner and friends. She can still do housework, albeit at a slower pace. She can drive, albeit with some discomfort.
484 In my view, whilst the plaintiff has been unable to engage in unrestricted manual work since her work injury, that is not a serious pain and suffering consequence as is allowable in appropriate cases, as this is not a situation where the plaintiff is an untrained, uneducated, unsophisticated manual worker whose work capacity is limited solely to manual work.
485 The plaintiff is clearly an intelligent, motivated, relatively educated woman who has shown ability and motivation to retrain in real estate and childcare and work in non-physical fields.
486 The plaintiff has chosen not to pursue receptionist work. She had the capacity to undertake from between 20 to 30 hours a week prior to going to the United States. I do not accept that she stopped that job because of any physical injury. Her evidence in this regard was unsatisfactory and drew appropriate criticism from the defendant in terms of credit.
487 On her own admission, having completed the childcare course, the plaintiff could look after older children but that work has not been provided for her. She organised the renovation of her house to care for children. She was unable to obtain work from the council because it would not allow her to care for children over three at home and she was not prepared to do childcare out of her home.
488 Following her lack of success in that regard, the plaintiff has decided not to return to work and has simply resigned from the workforce.
489 Taking into account all the evidence, I am not satisfied the plaintiff has satisfied the narrative test in relation to either her left shoulder or her cervical spine.
490 Further, I am not satisfied that, by reason of her neck or left shoulder, the plaintiff has suffered the requisite loss of earning capacity of 40 per cent pursuant to s134AB(38)(e)(i) and (ii) whether $43,000 or a higher indexed figure is used.[91]
[91]T213
491 The applications relating to the work injury are therefore dismissed.
Section 93 Application
492 I accept that in the transport accident the plaintiff suffered an aggravation of her work-related neck injury, with referred pain into the shoulders, independent of any separate shoulder condition.[92]
[92]T206
493 In this case, where there is a pre-existing neck condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the transport accident is serious and long term.
494 In Petkovski v Galletti,[93] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[93][1994] 1 VR 436
495 The plaintiff claims that following the transport accident, her symptoms increased to involve her right side and right shoulder, whereas prior thereto they were on the left side, albeit at times she previously complained of bilateral shoulder pain. [94]
[94]T206, see Mr Troy’s examination in February 2008
496 Senior Counsel for the plaintiff submitted on the plaintiff’s behalf that her organically-based neck condition was serious, although the concession had been made in opening that there was very little in the way of neck pathology.[95]
[95]T8
497 Reliance was placed on the extent of treatment with investigations post the transport accident, attendances on the general practitioner, acupuncture, physiotherapy, hydrotherapy treatment and ongoing medication such as Panadol Osteo, cortisone injections to the right shoulder and hydrodilatation of the left shoulder.
498 Counsel for the defendant submitted that, at its highest, there was a soft tissue neck injury which had long resolved and any injury now is really a chronic pain injury because any impairment is coming from a mental condition rather than any organic problems.[96]
[96]T181
499 Reliance was placed on the lack of change in radiology pre and post transport accident, the diagnosis of whiplash by Dr Monkivitch and also her diagnosis of a CPS prior to the transport accident and the limited treatment and lack of specialist referral following the transport accident.
500 When considering this application pursuant to the TAA, as Winneke P stated in Richards v Wylie,[97] the serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[98]
[97](supra)
[98](2000) 1 VR 79
501 In my view, the preponderance of medical evidence in this case supports the proposition that following a physical injury in the transport accident, by the time of the hearing, the plaintiff’s pain has become psychogenic in its basis and thus any impairment is not now organic and the injury is not one that can be properly categorised as falling within paragraph (a).[99]
[99]See West v Pac-Rim Printing Pty Ltd [2003] VSCA 68 at paragraph [27]
502 In any event, for the reasons I have mentioned in relation to the s134AB application, I do not accept the plaintiff has satisfied the narrative test of seriousness in relation to any aggravation of her cervical spine in the transport accident.
503 In terms of employment consequences, Senior Counsel for the plaintiff submitted the plaintiff’s employment capacity had been impoverished by her transport accident injuries; thus this was a serious consequence.[100]
[100]T220; See State of Victoriav Glover [1998] VSCA 93
504 I reject this submission for the reasons set out in paragraphs 486-491 herein.
505 Accordingly, the application pursuant to clause (a) is dismissed.
Psychiatric Impairment – clause (c)
506 Senior Counsel for the plaintiff conceded that there was an element of CPS, Depression and Anxiety consequent upon the work injury – as noted by Dr Monkivitch, in relation to which she prescribed Effexor – but it was not manifest in symptomatology and did not give rise to very considerable consequences.[101] However, it was submitted that situation changed after the transport accident resulting in an inability to work.[102]
[101]See Dr Stern’s examination early 2008, no psychiatric disorder, fit for work and no effect on activities
[102]T203
507 Reliance was placed on Dr Serry’s view following his 2014 examination that he would be pessimistic about the plaintiff having any realistic capacity for employment and he thought her injuries had significantly compromised her personal and recreational pursuits.
508 It was submitted if the plaintiff’s neck condition was not substantially based, it resulted in a CPS that was severe pursuant to clause (c).
509 Whilst I accept the plaintiff has a CPS, I do not accept that this disorder or any anxiety depressive condition is severe.
510 Significantly, the plaintiff has never been referred for psychiatric treatment. She now takes Effexor but has done so since her work injury.
511 The plaintiff first had counselling some five years after the transport accident. When she reported having seen the plaintiff on thirteen occasions, Ms Gerryts, if anything, placed more emphasis on the work injuries and made scant mention of any transport accident related problems.
512 Further, I do not accept Ms Gerryts’ view that the plaintiff’s life has been changed dramatically due to ongoing issues related to her medical conditions, finding that she still maintains a number of her usual activities such as dancing, gardening and household tasks. There is not the severe level of depression Ms Gerryts described.[103]
[103]T186
513 Dr Serry is alone in his view that the plaintiff cannot work on psychiatric grounds. He reached this conclusion on his most recent examination earlier this year, having found, following two earlier examinations, that the plaintiff had a work capacity. He did not explain why he changed his opinion in this regard.
514 Dr Serry appears to have accepted there has been some deterioration in the plaintiff’s psychiatric condition, although Dr Entwisle, who examined her a month earlier, found there had in fact been some improvement, and he thought the plaintiff had a work capacity.
515 Significantly, Dr Monkivitch has not reported any recent deterioration nor has she seen fit to refer the plaintiff for specialist treatment. Dr Monkivitch did not comment on this issue to any degree in her brief reports. She simply noted the plaintiff’s condition was fluctuating.
516 Whilst there is no exhaustive list as Judge O’Neill described in Papamanos v Commonwealth Bank of Australia,[104] symptoms or consequences ordinarily seen in cases of this nature at the more severe end of the spectrum include relevant hospitalisation, significant medication or treatment or more serious symptoms of suicidal ideation or psychotic features.
[104][2014] VSCA 167 at paragraph [44]
517 These types of factors do not feature in the present case.
518 Further, as the Court has pointed out, the word “severe” has a stronger meaning than “serious”.[105]
[105]Mobilio v Balliotis (supra)
519 Given the present level of the plaintiff’s social and domestic activities,[106] it cannot be said that she has a psychiatric impairment that could be described as “severe”.
[106]See paragraph 485
520 Accordingly, both applications pursuant to s93 are also dismissed.
Appendix “A”
DVD Video Surveillance Film of the Plaintiff
Surveillance DVD Exhibit 1 – Length: 45 minutes
Date: 14 September 2012
Time Event 12:41pm Plaintiff filmed sitting in her car at the Kids Club Childcare Early Learning Centre
3:15pm Plaintiff filmed walking through a car park
3:23pm Plaintiff filmed shopping at Bunning’s Warehouse in Keysborough, with her handbag over her left arm, occasionally reaching upwards and inspecting items off the shelves
3:27pm Plaintiff filmed walking with her handbag and other items in her left hand
Plaintiff drops some items and bends over to pick them up
Plaintiff drives off
3:34pm Plaintiff exits her car and walks off
3:52pm Plaintiff filmed at the Amcal Pharmacy at the Parkmore Shopping Centre
Plaintiff talks to the pharmacist with her handbag over her left arm
3:58pm Plaintiff filmed walking around the Pharmacy holding her left arm up over her head resting her handbag on her left upper arm
4:07pm Plaintiff filmed shopping at the Parkmore Fruit and Vegetable Market, handpicking products
4:19pm Plaintiff filmed shopping for approx. 15 mins at Coles placing items into a trolley with both hands
4:35pm Plaintiff filmed pushing a shopping trolley up a ramp and wheeling shopping to her car
4:36pm Plaintiff filmed unloading shopping into the boot of her car
4:37pm Plaintiff enters her car and sits down (without using her arms for support)
Plaintiff drives off
4:44pm Plaintiff unloads shopping out of the boot of her car whilst bending over (approx. 1 minute)
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