Casalaz v Hella Australia Pty Ltd
[2009] VCC 294
•17 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-00528
| JENNIFER CASALAZ | Plaintiff |
| v | |
| HELLA AUSTRALIA PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6,10 and 11 March 2009 |
| DATE OF JUDGMENT: | 17 March 2009 |
| CASE MAY BE CITED AS: | Casalaz v Hella Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0294 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 - plaintiff suffered injury to her right shoulder - whether the consequences in terms of pain and suffering and loss of earning capacity were serious: section 134AB(c), (e) and (f).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | Shine Lawyers |
| Mr M Walsh | ||
| For the Defendant | Mr J O’Brien with | Minter Ellison |
| Ms E James | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 14 February 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant on 16 December 2003.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr R McGarvie SC appeared with Mr M Walsh of Counsel for the plaintiff, and Mr J O’Brien appeared with Ms E James of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the right shoulder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
Dr Karamesinis, general practitioner, gave evidence and was cross- examined;
• Mr Westh, orthopaedic surgeon, gave evidence and was cross-examined. • The plaintiff tendered the following evidence:
ƒ the plaintiff's Court Book ("PCB") pages 20-123: Exhibit A ƒ an economic loss schedule: Exhibit B
• The defendant tendered the following evidence: ƒ film taken of the plaintiff on 15, 16, 17 and 18 February 2008:
Exhibit 1
ƒ film taken of the plaintiff on 4 May 2008: Exhibit 2 ƒ film taken of the plaintiff on 18 and 25 October 2008 and 1
November 2008: Exhibit 3
ƒ film taken of the plaintiff 19 October 2008: Exhibit 4 ƒ film taken of the plaintiff on 15, 16, 20, 22 and 23 November 2008:
Exhibit 5ƒ the defendant’s Court Book ("DCB") pages 5-168 and 201-206:
Exhibit 6
ƒ clinical notes of Ti-Tree Family Doctors Clinic: Exhibit 7 ƒ the defendant’s statement of calculation of loss of earning capacity:
Exhibit 8.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
9 The plaintiff was born on 6 April 1954. She is now fifty-four years of age. The plaintiff is a married woman. Her husband works as a teacher. She has two children.
10 The plaintiff was born in Essendon. She last attended Monterey Secondary College in Seaford, completing Year 11. Subsequently, she worked from about 1967 in various occupations before taking up employment with the defendant.[5]
[5] DCB 23-24
11 The plaintiff worked an afternoon shift with the defendant as a process worker up until the time she was injured.
The Incident
12 In the days leading up to the occurrence of the incident the plaintiff said that the days were very hot, the ventilation in the defendant's premises was poor and there was no air-conditioning available. She said that this led to the temperature within the workplace being extreme.
13 On 16 December 2003 at about 8.00 pm, the plaintiff took a tea break. She made a cup of tea which she was holding in her right hand. As a result of the impact upon her of the extreme heat in the workplace, she collapsed onto the concrete floor next to a tea machine, with her right arm extended.[6]
[6] PCB 21
The Plaintiff's Medical Treatment
14 The plaintiff obtained first aid treatment from a worker employed by the defendant.
15 The plaintiff saw Dr Newton, general practitioner, on 17 December 2003. She was initially treated for a burn to her right forearm, which occurred as a result of the cup of tea spilling onto her right forearm when she collapsed, and for pain which she was experiencing in her elbow and forearm.
16 The plaintiff completed an Incident Report on 16 December 2003 in which she briefly described the occurrence of the incident, reporting an injury to her arm.[7] The plaintiff later completed a WorkCover Workers’ Claim Form on 19 December 2003 in which she claimed an injury to her forearm.[8]
[7] DCB 168
[8] DCB 60-62
17 The plaintiff was provided with a Certificate of Incapacity for two days. She returned to work on 19 December 2003 and gave the Certificate to her supervisor, following which she completed the Claim Corm. She was subsequently taken aside by a Mr Deluca, described as a group leader, who informed the plaintiff that she was no longer employed by the defendant.
18 After obtaining initial medical treatment from Dr Newton, the plaintiff was principally treated by Dr Karamesinis, general practitioner, who was in the same practice as Dr Newton.[9]
[9] Dr Karamesinis provided medical reports dated 31 May 2004; 9 March 2005; 1 January 2006; 29 November 2008 and 4 March 2009 at PCB 47-53A
19 The plaintiff was next seen at that clinic by Dr Karamesinis on 28 January 2004. She gave a history to Dr Karamesinis that she had experienced low- grade right shoulder pain since the incident occurred, and when attempting some routine gardening she experienced pain in her right shoulder.
20 Dr Karamesinis referred the plaintiff for an ultrasound, which was undertaken on 9 February 2004, suspecting that the plaintiff had suffered a tendon rupture. The ultrasound did not reveal any abnormality.[10]
[10] PCB 44 and 47
21 The plaintiff continued to complain of problems with her right shoulder. As a result of further consultations with Dr Karamesinis and his colleagues, the plaintiff was referred to physiotherapy and was provided with Orudis for pain relief. It was noted that on examination she showed a reduction in the movement of her right shoulder, leading Dr Karamesinis to diagnose a rotator cuff syndrome. She was prescribed Voltaren and Nexium and advised to continue having physiotherapy.
22 Over time the plaintiff's treatment was varied to include the use of a TENS machine, acupuncture and further physiotherapy. Dr Karamesinis was of the opinion that the plaintiff’s condition was unchanged, leading him to refer the plaintiff to Mr Broughton, orthopaedic surgeon.[11]
[11] Mr Broughton provided three medical reports dated 1 September 2004; 15 November 2004 and 15 December 2005 at PCB 54-59
23 The plaintiff first saw Mr Broughton on 22 June 2004.[12] He referred her for a further ultrasound which was undertaken on 1 July 2004 which he considered showed evidence of subacromial impingement.[13] He also referred her to have an ultrasound-guided steroid and local anaesthetic injection into her right subacromial space.[14]
[12] The plaintiff described the treatment provided by Mr Broughton in her first affidavit at PCB 26-29
[13] PCB 45 and 57
[14] PCB 45A
24 Mr Broughton performed an arthroscopic examination on the plaintiff’s right shoulder on 21 October 2004, finding extensive rotator cuff tendinitis which he debrided and at the same time undertook a subacromial decompression.[15]
[15] PCB 45B and 58
25 Mr Broughton reviewed the plaintiff on a number of occasions, the last of which was on 27 September 2005. He initially referred the plaintiff to have physiotherapy which was interrupted because the plaintiff grew staph. aureus and also because of the occurrence of a dog bite to her right hand.
26 The active treatment he referred the plaintiff to have was physiotherapy, and also hydrotherapy, to deal with what he considered to be the development of adhesive capsulitis, and subsequently two hydrodilatation procedures in March 2005 and subsequently, in mid to late 2005.[16] Mr Broughton subsequently gave the plaintiff a number of injections and referred her to have a right subacromial bursal injection which was undertaken on 7 October
2005.[17]
[16] PCB 45D and 46A
[17] PCB 46C
27 When Mr Broughton last reviewed the plaintiff on 27 September 2005, he considered that she was making reasonable progress, feeling more comfortable and experiencing less pain, although he observed that unfortunately she had severe pain on abduction of the right arm.[18]
[18] PCB 58
28 The plaintiff continued with hydrotherapy in 2006. She stopped having physiotherapy because she did not feel it was helping her. She attended an osteopath from 9 June 2006 and had massage treatment. She continued seeing Dr Karamesinis who prescribed painkilling medication and provided her with Certificates of Incapacity. She also obtained chiropractic treatment and presently sees a chiropractor about once a month for treatment for her back, neck and right shoulder.
29 In addition to the treatment provided by Dr Karamesinis, the plaintiff was referred to Dr Lim, physician for pain management. She saw him in March 2007 and engaged in a three-week course of pain management at the Hopetoun Hospital in December 2007.[19] The plaintiff said that the condition of her right shoulder improved with the treatment provided by Dr Lim[20] who encouraged her to use her right arm in activity.[21]
[19] PCB 29 and 33
[20] Transcript 41 and 44
[21] Transcript 50 and 64
30 The plaintiff engages in a daily routine of exercises and what she described as “soft treatment” using hot packs and the daily use of a hot water bottle and a laser machine to treat pain trigger points. The plaintiff is no longer taking any medication. She has developed a sensitivity to it which causes her constipation. Dr Karamesinis confirmed this in his evidence.[22]
[22] Transcript #
The Films
31 The plaintiff was shown a number of films which I will summarise as follows:
•
The first set of films were taken on 15, 16, 17 and 18 February 2008.[23] The films showed the plaintiff:
[23] Exhibit 1
ƒ coming into shore in a motorboat steered by her husband on each
day;ƒ
the motorboat was brought beside a jetty. The plaintiff appeared to place both of her arms onto the jetty at upper chest height to steady the motorboat;
ƒ on 15 and 17 February 2008, she operated a winch on a partly
submerged trailer, onto which her husband was steering the motorboat. She stood to the right-hand side of the winch so that it was to her left, and on those occasions she wound the winch in a clockwise direction using both hands;
ƒ she appeared to operate the winch more vigorously on 17 February
2008.
•
The next set of films were taken on 4 May 2008.[24] The films showed the plaintiff:
[24] Exhibit 2. The first part of the film was dated 26 April 2008. This was clearly a mistake as the film was a continuous episode.
ƒ
with a Great Dane dog on a leash. The plaintiff and the dog leash appeared to become entangled, with the result that the plaintiff raised her right arm vertically bringing it around over her head to right that situation;
ƒ the plaintiff walking a Great Dane dog on a leash with a young
woman who she described as her daughter.
•
The next set of films were taken on 18 and 25 October 2006 and 1 November 2008.[25] The films showed the plaintiff:
[25] Exhibit 3
ƒ at a garage sale on 25 October; ƒ at a clothing shop handling items of clothing with both hands, and
raising her right hand to head level on 1 November.
•
The next set of films were taken on 19 October 2008.[26] The films showed the plaintiff:
[26] Exhibit 4
ƒ standing among some bicycle riders and then riding a bicycle a
short distance at a very sedate pace;
ƒ Putting shopping into the boot of her car using both hands.
•
The next set of films were taken on 15, 16, 20, 22 and 23 November 2008.[27] The films showed the plaintiff:
[27] Exhibit 5
ƒ at a garage sale on 15 November 2008 and later using a long-
handled gardening implement hacking at the ground outside her
home, and later carrying shopping bags in both hands;
ƒ doing little more than walking on the remaining dates.
32 The films were first shown at 2.15 pm to the plaintiff on the first day of trial and were fast forwarded at various points and interrupted by cross-examination, with that process being undertaken until close to 4.30 pm. The summary is based upon those aspects of the films on which Mr O'Brien concentrated during his cross-examination of the plaintiff.
The Medical Evidence
33 Dr Karamesinis was of the opinion that as at November 2008, that the plaintiff is totally and permanently disabled for work.[28] During cross-examination, he said that the best he thought the plaintiff could do would be to walk dogs for maybe up to two hours per day, and this was said in the context of extracts of the films taken of the plaintiff which he was shown by agreement.[29]
[28] PCB 52
[29] Transcript 115
34 Dr Karamesinis expressed a similar opinion relevant to the plaintiff's overall capacity to function in a non-work setting. More particularly, he referred to her having constant pain in her right shoulder; sleep disturbance; an inability to get her arm into a comfortable position and an inability to sit or stand for long periods of time.[30]
[30] PCB 53
35 In forming the opinion summarised above, Dr Karamesinis was assisted by a report which he obtained from Dr Lim.[31]
[31] PCB 122-123 and transcript 107
36 Mr Broughton has not re-examined the plaintiff. Based upon his treatment of the plaintiff, he was of the following opinion, as at 27 September 2005, that the plaintiff was suffering from ongoing rotator cuff tendinitis and subacromial bursitis in the right shoulder causing impingement. He was of the opinion that she would be restricted because of the pain in her right shoulder in being able to undertake full activities and could not do repetitive overhead work or heavy lifting, however, he was of the opinion that she did have a capacity for some work and could to light duties with those restrictions.
37 Mr Broughton was also of the opinion that it was wise for the plaintiff to continue under the care of a physiotherapist; that the plaintiff's prognosis was uncertain and that she might require further injections and even possibly further surgery, noting that impingement of the kind suffered by the plaintiff could go on to produce a tear of the rotator cuff.[32]
[32] PCB 59
38 Mr Westh, orthopaedic surgeon, saw the plaintiff on 9 September 2008 on a medico-legal basis.[33] He took a history from the plaintiff of her complaints which Mr McGarvie put to Dr Karamesinis. When those complaints were put to him he said the complaints recorded by Mr Westh were consistent with the complaints made to him by the plaintiff.[34]
[33] PCB 73
[34] Transcript 121-122
39 Mr Westh examined the plaintiff and expressed the opinion that the injuries suffered by the plaintiff disabled her from returning to work as a process worker or in any work which involved a lot of lifting or repetitive use of her right shoulder. He said she would be permanently restricted to work of a lighter nature and on restricted hours.[35]
[35] PCB 74-75
40 In the course of his oral evidence, Mr Westh confirmed the opinion he had expressed in his report. Mr Walsh and then Mr O'Brien asked Mr Westh for his opinion on the plaintiff's capacity for work. It occurred to me that Mr Westh was uncomfortable in expressing an opinion beyond what he had said in his report, however, when pressed by me, he said that the plaintiff could do light work with no heavy lifting and any lifting would be restricted to less than 5 kilograms and with no overhead use of the arms and the ability to have a rest.
41 Mr Westh added that the plaintiff could probably do light assembly work, but as far as he was concerned, the crux of whether she would be able to do that or not was not engaging in any heavy lifting or repetitive use of her right shoulder and arm above shoulder height.[36]
[36] Transcript 137. Mr Westh did not refer to the height above which the plaintiff should do repetitive work, but he demonstrated that by use of his hands against his own body.
42 I pressed Mr Westh again, asking him what he considered to be the extent of the plaintiff’s capacity to apply herself in that way, and he said that he was talking in terms of an ideal job, and on that basis the plaintiff could do light work in light assembly work on unlimited hours.[37]
[37] Transcript 138
43 Dr Karamesinis was asked whether he agreed with the opinion of Mr Westh. He said that he did.[38]
[38] Transcript 122
44 Mr Shannon, orthopaedic surgeon, examined the plaintiff on a medico-legal basis for the defendant on 18 August 2006;[39] 25 June 2007;[40] and 4 July 2008.[41]
[39] DCB 17
[40] DCB 21
[41] DCB 24
45 Mr Shannon was of the opinion that the plaintiff was suffering from cervical disc degeneration, adhesive capsulitis in the right shoulder and a pain syndrome. He considered that she was partially incapacitated and fit for office work or light process work, but that she should avoid work involving strenuous repetitive use of her right arm, heavy lifting and particularly lifting above shoulder level.[42]
[42] DCB 26
46 In his last report dated 17 November 2008,[43] Mr Shannon was provided with a labour market analysis,[44] and from that he considered that the plaintiff could work as an accounts clerk, accounts assistant and an accounts receivable clerk.
[43] DCB 27-28
[44] DCB 146-167
47 Dr Mutton, occupational physician, examined the plaintiff on a medico-legal basis for the defendant on 10 March 2005;[45] 13 September 2005;[46] and 6 May 2008.[47]
[45] DCB 29
[46] DCB 35
[47] DCB 40
48 Dr Mutton was of the opinion that the plaintiff was suffering from a chronic pain and possibly a myofascial pain syndrome, and it was likely that she suffered an injury to her right shoulder as described by her. He was of the opinion that the plaintiff was capable of light to moderate work where she did not engage in work which involved repetitive work above mid-chest height.
49 Dr Mutton was also provided with the labour market analysis, however, he did not identify the author of it. He was of the opinion that the plaintiff could work as a receptionist; in a clerical or administrative position; as a checkout operator/cashier and as an accounts clerk.[48]
[48] DCB 48-49 and 50
Serious Injury
Pain and Suffering
50 There are a number of issues for which the plaintiff bears an onus of proof which are not controversial. There is no doubt that the plaintiff suffered an injury to her right shoulder. I accept the opinion of Mr Broughton, the treating surgeon, that the actual injury is rotator cuff tendinitis and subacromial bursitis in the right shoulder causing impingement
51 Although there is an inevitable different use of language by the examining medical practitioners when describing the injury, it does not seem to me that any of them are in any real degree of disagreement about the identification of the pathological process resulting from the incident and how it is to be diagnosed.
52 It occurs to me that the only medical practitioner who defers from the diagnosis made by Mr Broughton is Dr Mutton, who chose to describe the injury quite differently. I prefer the opinion of Mr Broughton which is confirmed by the opinions of Dr Karamesinis, Mr Westh and Mr Shannon.
53 There is no doubt that the injury to the plaintiff’s right shoulder has impaired the function of her right shoulder and arm and that the impairment is permanent. Again, that is consistent with the opinions of Mr Broughton, Dr Karamesinis, Mr Westh and Mr Shannon, and in relation to Dr Mutton, he does not appear to defer from that view despite his opinion that the injury should be described quite differently.
54 To the extent that the consequences to the plaintiff are contributed to by both the physical injury and the psychological/psychiatric consequences of that physical injury, I find that there is a clear description of the injury and its physical consequences given by the plaintiff which was capable of clear identification by Mr Broughton, Dr Karamesinis, Mr Westh and Mr Shannon.
55 Therefore, the so-called disentangling is not an issue which arises here. In any event, it is clear enough from the relevant authorities that so long as I am able to distinguish the consequences which are derived from the plaintiff's physical injury as opposed to those of a psychological/psychiatric nature, then no so-called disentangling is called for.[49]
[49] See Shock Records Pty Ltd v Jones [2006] VSCA 180 per Bell AJA at paragraph 20; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 per Redlich AJA at paragraphs 19-20 and Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 per Ashley JA at paragraphs 20-30
56 The plaintiff has sworn two affidavits in which she has set out the consequences to her of suffering the injury to her right shoulder. She said that she suffers constant and persistent pain in her right shoulder and arm; that she is consequently restricted in lifting or carrying anything heavy with her right arm; that her sleep is disturbed; her ability to garden, cook, clean, vacuum, wash and engage in such things as doing ceramic work and bicycle riding have been significantly curtailed.[50]
[50] PCB 29-30 and 34-35
57 Furthermore, she has not been able to return to work since she was terminated.[51]
[51] PCB 30-31 and 35
58 The plaintiff's husband swore an affidavit in which he confirmed that the plaintiff's capacity to go fishing and look after her Great Dane dogs has been significantly curtailed, as has her capacity to engage in an intimate relationship with him and to undertake the kind of domestic tasks which the plaintiff herself described.[52]
[52] PCB 36-41
59 The plaintiff was cross-examined at some length by Mr O'Brien relevant to her general capacity to function and specifically in relation to her claim that she is in constant persistent pain and cannot engage in the activities she described, especially employment.
60 Mr O'Brien emphasised that the films taken of her on the motorboat and assisting in putting it on the trailer, as well as attending garage sales, going shopping and engaging in a general activity, pointed to her being more physically able than she was prepared to accept. The plaintiff gave answers consistent with what she swore in her affidavits that she is disabled, in pain and suffers the consequences of the injury to her right shoulder.
61 Mr O'Brien concluded his cross-examination of the plaintiff by putting a series of rolled up questions based upon what the plaintiff admits she is able to do physically and what the films show she is able to do. On the last occasion such a rolled up question was asked, the plaintiff said that her life is nothing like it used to be, which struck me as a fair summary of the answers which the plaintiff gave during cross-examination regarding the many consequences to her of the injury.[53]
[53] Transcript 87
62 In relation to her capacity for work, the plaintiff said that she is unreliable because the nature of her injury and the fact that the pain she experiences and how disabling that pain is varies from day to day. She said that she did not believe she could hold down any of the jobs which Mr O'Brien put to her taken from the vocational material obtained by the defendant.[54]
[54] DCB 146-167U
63 However, the plaintiff gave evidence that she applied for over forty jobs. She obtained interviews on some occasions, but has been unsuccessful in securing a job.[55]
[55] Transcript 32-33
64 Portions of the films were selected by Mr O'Brien and were shown to Dr Karamesinis. Mr O'Brien cross-examined Dr Karamesinis, essentially for the purpose of testing his evidence as to whether the plaintiff was totally and permanently incapacitated for work and also in a non-working sense.
65 Dr Karamesinis confirmed his opinion that the plaintiff is unfit for work and might be able to do some work consistent with walking dogs for up to two hours per day. I took his reference to walking dogs to be a related to what he saw on the films and as simply an illustration of the extent to which the plaintiff could be employed in a simple occupation.[56]
[56] Transcript 115
66 Dr Karamesinis explained that after receiving a letter from Dr Lim, that he understood the nature and extent of the plaintiff's injury somewhat differently. He said:
"Q: If we go to the next report of 29 November 2008, p.52 of the plaintiff's court book, in paragraphs 2 and 3 you then say that you consider that in paragraph 2 Ms Casalaz has no capacity for paid employment, and in paragraph 3 you say that she is totally and permanently disabled. What has changed between January 2006 when you thought that she could go back to part-time work increasing to full-time work in an office type environment. What has changed between then and November 2008?--- A: I think that the main change is that her injury has moved on. Purely from the initial shoulder injury it's developed into a regional pain syndrome. Q: What does that mean. What is a regional pain syndrome?--- A: I might like to refer you to the report by Dr Lim who has spelt it out really nicely. He says in his letter to Chantel Fitzgerald at Cambridge Services on 21March 2007: ‘Persistently hyperirritable muscles, the consequence of original work injury perpetuated and aggravated by altered posture and movement patterns and the development of pain sensitisation.’
Q: So you changed your mind as a result of what Dr Lim has had to
say, is that right?---A: Well, I think that I sent the patient to Dr Lim because I felt that there was no more point in further orthopaedic or shoulder surgical intervention. When you first get an injury you've got pain, limitation of movement, and hopefully the injury goes away and the pain goes away, but when people suffer chronic and severe pain they'll then become sensitised to the pain, so light touch, movement, any stimulus which shouldn't be painful becomes painful."
67 Overall I was very impressed by the evidence given by Dr Karamesinis. It occurred to me that he had analysed the plaintiff's injury and made a diagnosis consistent with that of Mr Broughton, but had revised it after introducing the opinion of Dr Lim.
68 The plaintiff is a relatively young woman of fifty-four years of age. While some in the community might consider that she is in advanced middle age, the fact is that an average working life for someone in factory work is probably around sixty years of age. She is dominant right-handed. At the time when the plaintiff was injured she was about forty-nine years of age and was capable of not only keeping down a job in factory, but also enjoying a fruitful life with her husband and children and was well capable of pursuing social, domestic and recreational pursuits which were part of her life before she was injured.
69 She has now endured the consequences of the injury for five years and according to the medical evidence, which I accept, there is no likelihood of those consequences receding to any degree at all, which, of itself, is a dramatic consequence for her.
70 Since suffering the injury the plaintiff has undergone a significant regime of conservative treatment which has failed to return her right shoulder to a reasonable level of functioning. She required surgery and subsequently two hydrodilatations and a fair degree of conservative treatment in an attempt to ameliorate the impact of the injury, but unfortunately for her it has had limited success.
71 The plaintiff is unable to tolerate medication because it causes her painful constipation.[57] Dr Karamesinis gave evidence that the medication which both he and Dr Lim prescribed the plaintiff had caused her constipation.[58]
[57] Transcript 80, 90 and 97
[58] Transcript 120
72 I do not accept that the films demonstrate that the plaintiff has been engaged in activity inconsistent with the consequences which she described in her affidavits and in her oral evidence, and I am fortified in reaching that conclusion by the evidence of Dr Karamesinis and Mr Westh, who saw sufficient of the films to be able to comment on whether they give a very different picture of the plaintiff’s overall capacity to function. They were unmoved by what they saw on the films.[59]
[59]
73 Mr O'Brien submitted that the use to which he wanted to put the films was to demonstrate that the plaintiff is capable of engaging in a wide variety of activities consistent with leading a normal life. In Dwyer v Calco Timbers Pty Ltd,[60] Ashley JA observed that it is true that impairment is concerned with what has been lost, but the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[61]
[60] Dr Karamesinis at Transcript 112-113 and Mr Westh at Transcript 130-132
[61] Paragraph 27
74 Whilst it is true that the plaintiff has retained her capacity to engage in some social, domestic and recreational activities, what she now does is a fraction of what she was capable of doing previously. I do not consider that what the plaintiff has retained outweighs what the plaintiff has lost as a result of suffering the injury.
75 In these circumstances, I find that the plaintiff has suffered a very significant injury to her right shoulder which has not responded to treatment and that there is now a demonstrated worsening of it consistent with the opinion of Dr Karamesinis and that the injury has caused an impairment of the function of the plaintiff’s right shoulder which has deprived the plaintiff of the full, free, painless and unrestricted use of her right shoulder.
76 I accept the plaintiff’s evidence that she has suffered the consequences of the impairment of the function of her right shoulder as described by her in her affidavits and in her oral evidence.
77 Therefore, I find that the consequences to the plaintiff of the impairment of the function of her right shoulder deserve the description “at least very considerable” and I have reached that conclusion by making the relevant comparison as I have described it in my discussion of the statutory scheme.
Loss of Earning Capacity
78 It is clear from my summary and analysis of the medical evidence that there is a clear division between the opinions of Dr Karamesinis and Mr Westh and Mr Shannon and Dr Mutton in terms of the plaintiff's capacity for work.
79 Mr Westh clearly disagrees with the opinions expressed by Mr Shannon and Dr Mutton because his opinion on the plaintiff's capacity to return to suitable work was based upon the plaintiff obtaining an ideal job, and I took that to mean that he was expressing an opinion more on a theoretical basis.[62]
[62] Transcript 138
80 However, I find that Dr Karamesinis is in a better position than Mr Westh, Mr Shannon and Dr Mutton to assess the plaintiff's capacity for work for a number of reasons.
81 Firstly, he has had the advantage of treating the plaintiff over a very long period of time which has enabled him to observe the plaintiff's progress. I thought this was particularly evident in the evidence he gave concerning the films taken of the plaintiff fishing in February 2008, which he said immediately followed the treatment provided by Dr Lim at the Hopetoun Hospital and was at a time where the plaintiff had improved and was not seen much at Dr Karamesinis’ clinic which he considered occurred because the plaintiff had experienced that level of improvement.[63]
[63] Transcript 113-114
82 Secondly, when Dr Karamesinis received two letters from Dr Lim[64] he understood that there had been a change in the plaintiff’s physical situation which amounted to a worsening of her injury and the consequences to her as outlined in his evidence from which I have quoted in paragraph 66 above.
[64] PCB 120-123
83 Thirdly, it was only as a result of Dr Karamesinis’ understanding of a worsening of the plaintiff’s physical situation that he changed his opinion about the plaintiff's capacity for work.[65]
[65] Compare his opinion expressed in his report dated 1 January 2006 at PCB 51 with his later opinion expressed in his report dated 29 November 2008 at PCB 52
84 Fourthly, I do not accept the submission made by Mr O'Brien that I should prefer the opinions of Mr Shannon and Dr Mutton because they examined the plaintiff on a number of occasions and may have qualifications and experience beyond that of a general practitioner because I consider there is a sound basis for the opinion expressed by Dr Karamesinis that the plaintiff is not capable of work, and to a fair extent that is supported by Mr Westh, who expressed his opinion based upon an ideal job which he considered the plaintiff could undertake with work restrictions on unlimited hours.
85 A fair amount of time was expended by Mr McGarvie and Mr O'Brien on the opinions expressed by the author of the Evidex report [66] and the author of the CoWork reports[67] and the evidence given by Ms Henderson of Evidex regarding whether the plaintiff is fit for work referred to by the author of the CoWork reports described as “Self-Serve area Operator”.[68]
[66] PCB 87-118
[67] DCB 146-167U
[68] DCB 167o-167p
86 Ms Henderson was cross-examined by Mr O'Brien that the job description indicated that the job was a very light job and one which the plaintiff would surely be able to undertake with some ease. Ms Henderson would not accept that proposition. She based her answers on an attempt to identify what physical tasks required in that job would involved, such as the requirement to lift and stack baskets and similar tasks.[69]
[69] Transcript 151-154
87 I find that the plaintiff has suffered the requisite degree of loss of earning capacity which is permanent and at least very considerable for two reasons after making the relevant comparison which I have referred to in my discussion of the statutory scheme.
88 Firstly, I am impressed by the evidence of Dr Karamesinis that given all of the experience he has had with the plaintiff, and armed with opinion of Dr Lim, he is in the best position to express an opinion about the plaintiff's capacity for work.
89 Secondly, even if the plaintiff was able to undertake work full-time as a self- serve area operator, the gross wage which she would earn from that job is $500 per week.[70] The comparable wages produced by the defendant during the hearing demonstrate the following:
[70] DCB 167o. The gross wage for a Receptionist is $500 per week (DCB 167h). All of the other wage rates referred to in the reports of Evidex and CoWork in the discussion by the authors of those reports of jobs which might be suitable for the plaintiff exceed $500 gross per week. Mr O'Brien tendered a statement of calculation of loss of earning capacity dated 11 March 2009 (Exhibit 8) which likewise referred to jobs for which the wage rates exceeded $500 gross per week
• For the year ending 30 June 2004 – 60 per cent of the relevant gross wage was $508.95. • For the year ending 30 June 2005 – 60 per cent of the relevant gross wage was $501.90. • For the year ending 30 June 2006 – 60 per cent of the relevant gross wage was $497.63. 90 If the plaintiff was capable of full-time work in either work as a self-serve area operator or receptionist, she would nonetheless succeed in proving the requisite degree of loss of earning capacity.
91 I accept the submission made by Mr McGarvie that subsection (38)(f) requires me to make an assessment of the gross income from personal exertion which the plaintiff is capable of earning in suitable employment as most fairly reflects her earning capacity had the injury not occurred.
92 My interpretation of the words “as most fairly reflects” asks me to determine the plaintiff's capacity and the extent to which she has exploited it in earning gross income. I accept the submission made by Mr McGarvie that the answer to that question is that a fair reflection of the plaintiff's earning capacity which is most fair to her is the gross income she earned for the financial years ending 2004 and 2005.
93 Therefore, if the plaintiff is capable of working full-time in one of those jobs then she has satisfied me that she has proven the requisite degree of loss of earning capacity.
94 I want to add for the sake of completeness that I have examined the other jobs referred to in the reports of Evidex and CoWork. I find that none of them are suitable for the plaintiff given the opinions on the plaintiff's earning capacity of Dr Karamesinis, Mr Westh and Mr Shannon. In the case of Mr Shannon, he excluded jobs such as checkout operator/cashier which he did not think was suitable for someone with a chronic shoulder condition.[71]
[71] DCB 27
95 I have also had regard to the opinion of Ms Henderson of Evidex that based upon the medical material that she was provided, she considered that from an occupational therapist’s point of view, the plaintiff is not fit, in a practical sense, for the jobs which she and the author of the CoWork report referred to. I considered her evidence to be cautious when appraising the suitability of the plaintiff to undertake a job, but nonetheless well reasoned, sensible and based on the medical evidence which she was provided which is the very same medical evidence which I have accepted.
Other Issues
96 There are two other issues which I will deal with only shortly and which I essentially disposed of in the course of the submissions made by Mr O'Brien and Mr McGarvie.
97 The first was a submission made by Mr McGarvie that there is no causal link between the incident and the manifestation of the plaintiff's right shoulder injury.
98 Mr O'Brien relied on the fact that the plaintiff had sought medical treatment for a prior right shoulder problem in September 2003; that the incident report and the claim form did not disclose a specific reference to a shoulder problem, and the first medical attendance by the plaintiff for medical treatment following the incident was on 28 January 2004.
99 I find that there is no basis for the submission. Firstly, none of the medical practitioners from whom reports were sought by the defendant have ever been asked for their opinion on causation. Secondly, neither Dr Karamesinis nor Mr Westh were challenged during their oral evidence that their conclusions of a causal link were wrong. Thirdly, I accept the plaintiff’s evidence that despite the absence of reference to the shoulder in the incident report and the claim form, she was suffering from pain in her upper arm and later in her shoulder which saw her attend a medical practitioner in late January 2004 which is relatively contemporaneous with the incident.
100 Mr McGarvie submitted that the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder and he relied upon evidence of Dr Karamesinis, Dr Epstein, psychiatrist[72] and Dr Entwisle, psychiatrist .[73]
[72] PCB 76-84
[73] DCB 51-55
101 Mr McGarvie conceded that his submission relied upon a finding that the pain syndrome referred to by Dr Lim was not organically based. For reasons which are clear from my analysis of the evidence of Dr Lim and Dr Karamesinis, I have found that the pain syndrome is a physical sequelae of the plaintiff’s physical injury to her right shoulder.
102 I find, in any event, that the plaintiff has not suffered a permanent severe mental or permanent severe behavioural disturbance or disorder because there is a distinct lack of the markers often seen in cases which satisfy the definition. The plaintiff has not had any psychological or psychiatric treatment. She has not been prescribed any medication for such a condition, and overall it was my strong impression that whatever psychological or psychiatric sequelae she might suffer is secondary to her physical injury and not severe in its consequences.
Conclusion
103 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant on 16 December 2003.
104 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
- - -
[2008] VSCA 260
0
6
0