Chapman v Victorian WorkCover Authority
[2013] VCC 1265
•18 September 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04636
| RHONDA CHAPMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 26, 28, 29 and 30 August 2013 | |
DATE OF JUDGMENT: | 18 September 2013 | |
CASE MAY BE CITED AS: | Chapman v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 2 October 2013] | [2013] VCC 1265 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application –– injury to the right arm – psychiatric injury – economic loss and pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436; Ansett Australia Ltd v Taylor [2006] VSCA 171; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon Ltd |
| For the Defendant | Mr P Scanlon QC with Mr A Saunders | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment, in particular in early February 2000.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application in respect to s134AB37(a) is injury to the right arm.
6 The mental or behavioural disturbance or disorder relied upon in respect to s134AB(37)(c) is described as a psychiatric injury.
7 The plaintiff relied upon two affidavits, sworn 27 September 2010 and 15 August 2013. In addition, the plaintiff relied upon an affidavit of Shaun Chapman, sworn 21 August 2013, and an affidavit of Kim Bradbury, sworn 22 August 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or evidence. However, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other medical material which were tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment after 20 October 1999;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (op cit) at paragraph [33]
(c) “the consequences” to the plaintiff of her impairment, namely to the right arm, must be considered in relation to “pain and suffering” or “loss of earning capacity” and must be “serious” – that is, when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable;[4]
[4]s134AB(38)(b) and (c)
(d) “the consequences” to the plaintiff of her psychiatric injury in relation to “pain and suffering” or “loss of earning capacity” must be severe when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be;[5]
[5]s134AB(38)(d)
(e) the judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”;[8]
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis (supra) at 846
(f) Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in s93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act;[9]
[9]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
(g) 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;[10]
(h)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.[11]
[10]s134AB(38)(h) of the Act
[11]s134AB(38)(i) of the Act
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[12]
[12]s134AB(19B) and 38(e) of the Act
(i) that at the date of hearing she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (e) of s134AB(38) of the Act;[13]
[13]s134AB(38)(e)(i) of the Act
(ii) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[14] and
(iii) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[15]
[14]s134AB(38)(e)(ii) of the Act
[15]s134AB(38)(g) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[16]
[16]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63]
12 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[17]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[18]
[17][2009] VSCA 181
[18](supra) at [42]
14 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[19]
[19]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
15 The test for “serious”, as set out in paragraphs (b), (c) and (d) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
16 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[20]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[21]
[20]s134AB(38)(j) of the Act
[21] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issues
17 Counsel for the defendant informed the Court that:
(a)causation was in issue;
(b)this is a “range case”; namely, that the physical consequences of the right arm injury do not meet the test of seriousness for pain and suffering;
(c)the medical evidence indicates the plaintiff has a capacity for full-time suitable employment; alternatively, the plaintiff has a capacity for suitable employment which would result in her earning more than 60 per cent of her pre-injury earnings in accordance with s134AB(38)(e) and (f) of the Act;
(d)the plaintiff’s psychiatric consequences do not constitute a permanent severe mental or permanent severe behavioural disturbance or disorder;
(e)the plaintiff’s credit is in issue.
Investigations
Right shoulder
18 On 7 June 2005, an x‑ray of the right shoulder demonstrated:
“… extensive degenerative pathology involving the AC joint. The patient probably has rotator cuff tendinopathy as there is slight lateral sloping of the acromion as well.”
Right elbow
19 On 30 August 2004, an ultrasound of the right elbow showed:
“There is a bony spur at the common extensor origin. A small aulsion fragment is noted in the epicondyle region on the medial aspect. No effusion is seen. No focal local pathology is identified in the area of tenderness apart from the above.”
20 On 18 November 2004, an MRI scan of the right elbow concluded:
“(1) high grade tear of the deep fibres of the CEO;
(2)likely prior strain of the lateral co-lateral ligament and MCL.”
Left shoulder
21 On 5 April 2007, an x‑ray of the left shoulder showed:
“There is an irregular AC joint with some soft tissue calcification adjacent to the greater tuberosity.”
The Plaintiff’s medical evidence
Dr Paul Coughlan
22 In February 2013, Dr Coughlan, general practitioner, reported that the plaintiff first attended with regard to her right shoulder injury on 2 July 2002. She said she had been putting wood into the fire when her elbow “popped”. She gave a history of thirteen months of pain in the right shoulder dating from having had her right arm forcibly twisted behind her in the course of her employment as a teacher in the Latrobe Special Development School. She reported she had initially attended a chiropractor for pain in the shoulder and neck.
23 In about April 2007, the plaintiff complained of left shoulder symptoms. Despite steroid injections, her disability increased, so she was referred to Mr Bell.
24 Dr Coughlan said the right shoulder injury arose out of the assault at work. On the balance of probabilities, the left shoulder injury came about due to increased use of the left side due to residual disability on the dominant right side.
25 Dr Coughlan said the plaintiff’s depression was related to the sequelae of the injury and its effects on her function. He said her subsequent marital breakdown complicated the issue.
26 In October 2008, the plaintiff underwent a colonoscopy, which revealed a histologically confirmed inflammatory proctitis, which occurred in the context of long running stress, anxiety and depression. Dr Coughlan said the inflammatory bowel problem is a condition which may be precipitated by chronic stress and the onset of her depression in 2006 which was related to the sequelae of the injury and effects on her function. It was his view the inflammatory bowel condition contributes only mildly to her disability.
27 It was Dr Coughlan’s opinion that the plaintiff’s shoulder injuries and depression were currently disabling her completely from her pre-injury work. Dr Coughlan said she had a capacity for work which would be best determined by a multidisciplinary assessment. He said that her prognosis was uncertain; the probability is for long-term shoulder problems, with a possible remission of her depression. He thought that her return to the workforce would be a positive factor.
Mr P Rehfisch
28 In November 2004, Mr Rehfisch, orthopaedic surgeon, reported to the plaintiff’s general practitioner that the plaintiff had reasonably good release of symptoms in her right shoulder after her surgery in 2003, but noted that her right elbow was giving her discomfort, both in the flexor and extensor musculature. He recommended an MRI scan and suggested the plaintiff continue with further strengthening and stretching exercises.
Dr Tim Barber
29 In April 2005, Dr Barber, sports physician, said the plaintiff had chronic medial elbow joint synovitis due to an underlying laxity and she had a small bone fragment visible on the medial aspect of the coronoid process. He wrote to Mr Bell requesting his opinion as to whether arthroscopic debridement would be worthwhile.
Mr Simon Bell
30 Mr Bell, orthopaedic surgeon, treated the plaintiff on referral from her general practitioner.
31 In August 2005, Mr Bell said the plaintiff had some soft-tissue damage, resulting in pain around the elbow region, but that it had now clinically settled almost entirely. He said that most of her pathology related to the shoulder, with evidence of ongoing impingement and supraspinatus inflammation and pain. He thought it most likely she would need a subacromial decompression to relieve her impingement.
32 In February 2009, Mr Bell reported that in October 2005, the plaintiff had arthroscopic surgery to the right shoulder with a good result. She was reviewed in November 2005, at which time she had an unrestricted range of glenohumeral movement and full anti gravity elevation.
33 Mr Bell said the plaintiff was next treated by him in April 2008 when she presented complaining of pain in the left shoulder and was given a cortisone injection. In May 2008, she was reviewed and reported some improvement, but was having ongoing symptoms. In August 2008, her left shoulder had deteriorated and she underwent arthroscopic surgery for both rotator cuff and the AC joint in September 2008. Mr Bell reported she recovered very satisfactorily from the surgery.
34 In 2009, Mr Bell said when last seen by him in October 2008, the plaintiff had good function in both shoulders. He said the prognosis was good and he would not expect, in the foreseeable future, any deterioration in the shoulder.
35 Mr Bell reported that he did not record any specific relationship between either shoulder problem to her work and could not comment on whether her injuries were work related.
Ms Geraldine Naismith
36 Ms Naismith, psychologist, treated the plaintiff between January 2008 and May 2013. In May 2013, she said the plaintiff was experiencing symptoms associated with a diagnosis of depression, anxiety and stress as a result of her workplace injury in 2001,[22] compounded by a number of significant grief and loss experiences within a relatively short period of time. She said the plaintiff will need ongoing support as she rebuilds her life while managing significant lifestyle adjustments.
[22]Ms Naismith’s report noted the injury occurring in 2001. Neither party addressed me on this issue.
37 She said that the symptoms of depression, anxiety and stress began with the impact of her workplace injury on her marriage, resulting in her husband leaving the marriage, compounded by further loss, with the death of a number of family members; the loss of her career as a teacher; a failed romantic relationship and the loss of long-term friendships; the departure of her sons as they moved into adulthood, and significant financial stress associated with being unemployed and pending court hearings. She said the plaintiff required ongoing psychological counselling support. In addition, the plaintiff needed to re-train to find suitable employment that takes into account her physical injury, and her psychological and emotional wellbeing.
Latrobe Regional Hospital discharge summary
38 On 20 December 2012, the plaintiff presented at the Latrobe Regional Hospital Emergency Department because of depression and suicidal thoughts. She complained of difficulties falling asleep, loss of appetite, lack of motivation, lethargy and feelings of worthlessness and guilt since she could not spend money for leisure or Christmas because she was unemployed. She was discharged the following day as a voluntary client.
Mr Stanley O’Loughlin
39 In August 2012 and March 2013, Mr O’Loughlin, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr O’Loughlin said the plaintiff had soft-tissue injuries to the right shoulder and upper arm, with an aggravation of degenerative changes in the acromioclavicular joint. She later developed aggravation of degenerative changes in the left shoulder because of extra dependency on the left side. She required surgery to both shoulders.
40 He recommended that she continue with an exercise program and stretching exercises. He said the plaintiff had discomfort with her right shoulder and arm and hopefully with further exercises and good psychological management and appropriate re-training by the Education Department, she will improve further.
Dr H Sutcliffe
41 In February 2013, Dr Sutcliffe, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff described constant pain in the right shoulder radiating to the right side of the neck to the posterior aspect of the head. She had pain in the right elbow and pins and needles in the right hand. She had some pain in the anterior aspect of the left shoulder. She described the pain present in the right shoulder at an intensity of 7 out of 10 on a visual analogue scale, increasing to an intensity of 9 to 10, thus describing severe pain. The elbow pain was experienced at an intensity of 4 to 5. She had headaches, which she described at an intensity of 7 to 8.
42 She described waking at night about five nights a week and had waking pain at times. She complained of increased pain with activity, although walking or sitting was not greatly restricted. She had increased pain with standing, which was limited to ten to fifteen minutes. Driving was limited to one hour. She complained of difficulties with self care such as hair care and drying her hair. She complained that cleaning, gardening and cooking were difficult. Social activity was decreased and she no longer was able to play sports of basketball and golf as she did previously. She said she could no longer go dancing, fishing or camping.
43 Dr Sutcliff noted, on examination, that the circumference of the right upper arm was 33.5 centimetres compared to 35 centimetres on the left. Hand grip using a Jamar dynamometer was 8 kilograms of force on the right compared to 22 kilograms of force on the left. The range of movement of the right shoulder was limited. The plaintiff had a full range of movement with pain of the left shoulder. There was some wasting of the thenar eminence on the right hand.
44 Dr Sutcliffe said, as a result of the right shoulder injury and the right elbow injury, the plaintiff had sustained permanent impairment of function with loss of capacity for her pre-injury duties now and into the foreseeable future. She said the plaintiff could not perform primary school teaching and could not teach in a special developmental school where she sustained her injuries. She was aware the plaintiff had attempted administrative and secretarial duties which she was able to sustain. She believed the plaintiff had no capacity to return to her occupation as a teacher now or into the foreseeable future, either as a primary school teacher, a librarian or a special school teacher.
45 She said the plaintiff had some capacity to undertake limited administrative work and that she would need to have the ability to self pace her activities. It was her view the plaintiff could be employed as an administrative assistant working three to four hours, three days a week, and that this will continue into the foreseeable future.
46 She said the plaintiff will require the provision of analgesic medication and management of pain as a result of the right shoulder injury, the right elbow injury and, to a lesser extent, the left shoulder injury. She believed the adverse impact on her occupational capacity was permanent and that there was an adverse impact on her capacity for activities of daily living in leisure tasks, social activity and, to a lesser extent, in domestic activity, also in self care.
Dr Nathan Serry
47 In June 2013, Dr Serry, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitors. He diagnosed a moderate severe Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of panic. An alternate diagnosis would be partially treated Chronic Major Depression with anxious features and with features of panic.
48 He said the plaintiff had suffered not inconsiderable levels of restriction and incapacity from the psychiatric injury, which are likely to persist into the foreseeable future. He said the plaintiff requires ongoing treatment, including psychological treatment, and should be under the care of a treating psychiatrist. It was his view that the work described in the plaintiff’s affidavit was the cause of her injuries. He was aware of the unrelated issues[23] and said that those issues would not have been anywhere near as problematic in the absence of the plaintiff’s work-related injuries.
[23]Dr Serry noted unrelated issues of difficulties in the plaintiff’s marriage, the deaths of members of her family and financial and friendship difficulties.
49 He did not believe the plaintiff could return to pre-injury duties, but said she should be able to continue with some part-time administrative type work within the limitations recommended by Dr Sutcliffe.
The Defendant’s medical evidence
Mr Michael Dooley
50 In March 2013, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor.
51 Mr Dooley believed that the work-related incident in February 2000 resulted in the plaintiff sustaining a soft-tissue injury to the region in her right elbow and subcutaneous bruising type injury to the right upper limb. He did not believe there was any direct relationship between the shoulder pathology and the work-related incident of February 2000. He said the pathologies affecting both shoulders was very similar and indicated constitutional or naturally occurring degenerative process affecting each similarly. He did not believe these pathologies were caused by the work-related incident or that any aggravation of the underlying process occurred in the incident.
52 He described the plaintiff as a sensible and genuine historian and did not believe she was exaggerating her symptoms. He concluded by saying the plaintiff sustained a soft-tissue injury to her right elbow. He believed the plaintiff had naturally occurring degenerative changes affecting the rotator cuff region and acromioclavicular joints of both shoulders.
53 As a consequence of the soft-tissue right elbow injury, he would not expect the plaintiff to note ongoing intermittent pain affecting the right elbow and forearm region. He said from an orthopaedic view, the plaintiff had the physical capacity to carry out some light physical work and clerical duties. He said she would have difficulty carrying out a lot of activity at an above shoulder level. He felt the plaintiff had a physical capacity to work as a teacher, depending on the age group of the students. He thought the plaintiff had a physical capacity to work in an administrative/clerical position.
Associate Professor George Mendelson
54 Associate Professor Mendelson, psychiatrist, examined the plaintiff at the request of the defendant’s solicitors. Professor Mendelson said there was no indication that the plaintiff had a specific diagnosable mental disorder. In his view, the emotional symptoms the plaintiff described are due to an understandable psychological reaction to the events that she described including persistent pain, repeated surgery, apparent inability to continue to work as a teacher and her current situation in which she is in receipt of a Newstart allowance and is experiencing financial difficulties.
55 It was his opinion that there was no indication that the plaintiff had any loss of work capacity due to any psychiatric illness or psychiatric impairment. He said her overall prognosis was that of her physical condition and there was no psychiatric contraindication that the plaintiff could undertake gainful employment within the limitation of her physical condition. He concluded that she had no loss of work capacity due to any psychiatric illness or psychiatric impairment.
Credit of the Plaintiff
56 Counsel for the defendant made a number of submissions in relation to the plaintiff’s credit.
57 Firstly, Counsel submitted that the range of movement the plaintiff demonstrated to the Court was not supported by the evidence.
58 The plaintiff demonstrated to the Court the range of movement of both shoulders. She demonstrated that the range of movement of the right shoulder was greater than 45 degrees but well below shoulder height. The range of movement of the left shoulder was above shoulder height.
59 Counsel for the defendant submitted that this was inconsistent with the range of movement depicted in Photographs 3 and 11, which showed the plaintiff lifting her right arm above shoulder height. Further, the range of movement of the right shoulder was inconsistent with the range of movement recorded by Mr O’Loughlin, orthopaedic surgeon, and Mr Dooley, orthopaedic surgeon, who both recorded abduction and flexion at 150 degrees; and Dr Sutcliffe, occupational health physician, who recorded 110 degrees.
60 Further, the plaintiff demonstrated a greater range of movement than that demonstrated to the Court when she committed an unlawful assault, to which she pleaded guilty in July 2013.
61 I accept the plaintiff’s range of movement demonstrated in Court was inconsistent with the photographs and the range of movement recorded by medical witnesses. I accept that the plaintiff’s range of movement is as recorded by the doctors. There was no evidence to adequately explain the reduction in the range of movement in Court. However, I am not prepared to draw a conclusion as to the circumstances of the assault. Overall, I accept the plaintiff exaggerated the limitation of movement in her right arm in Court.
62 Secondly, in her affidavit, the plaintiff stated that “in the past” she played golf socially and competitively. In cross-examination, she was unclear about the extent to which she previously played golf and contradicted herself about whether she had played since the injury. I conclude that the plaintiff’s evidence was unreliable on this point.
63 Thirdly, Counsel for the defendant submitted there were further matters which affected the plaintiff’s credit. I accept the explanations given by the plaintiff, and take the view that these matters in no way affected her credit. The matters were:
·The plaintiff failed to disclose in her affidavit the work she performed in 2012 at Café 100, work as an Avon lady and that she engaged in a computer course. The plaintiff said she told her solicitor about the work at Café 100 and the computer course. She said she never really worked as an Avon lady.
·I accept the plaintiff’s explanation about her attendances at a chiropractor both before and after the injury. Her evidence as to whether there were two chiropractors of the same name in Morwell was incomprehensible. I accept that the plaintiff became confused in what she was being asked in cross-examination, despite the fact that there was no objection to the cross-examination at the time.
·The plaintiff’s evidence was that she left her job with the financial planner because of a downturn in the economy. Counsel for the defendant said this was inconsistent with the psychologist’s report; namely, that she left the position because she became romantically involved with the financial planner. In re-examination, the plaintiff said she continued working with the financial planner after the relationship ended. I accept her evidence on this point.
·The photographs taken of the plaintiff and produced into evidence were inconsistent with the plaintiff’s evidence that she did not socialise and did not have a good time. I accept the photographs were taken on two separate days in 2011 when the plaintiff appeared to be enjoying herself. A photograph is a snapshot in time and I am not prepared to draw an adverse finding on the plaintiff’s credit on the basis of two photographs.
64 Fourthly, Counsel for the defendant said the affidavit of the plaintiff’s former husband, Shaun Chapman, was worthless, because he did not disclose that he had an affair with the cleaning lady. I do not accept that submission. The affidavit addresses the issue of causation and the fact that the plaintiff had ongoing shoulder and arm pain. I accept the purpose of the affidavit.
65 Fifthly, the histories of the medical witnesses who treated or examined the plaintiff for medico-legal purposes in relation to her psychiatric condition make no reference to the husband’s affair with the cleaning lady, but conclude the injury was the cause of the plaintiff’s marriage breakdown. The defendant made submissions about information the medical witnesses were given about the plaintiff’s marriage. I do not accept these factors go to the credit of the plaintiff. I accept that they relate to the reliance I place upon the reports.
66 Overall, I formed the view that the plaintiff was genuine, but at times exaggerated her circumstances. She was keen to answer questions; however, at times became confused, in particular her evidence about the chiropractor. She gave a consistent history to all the medical witnesses who examined her. Her evidence in respect to causation was supported by the evidence of her former husband, Shaun Chapman, and friend, Kim Bradbury.
67 There was no suggestion by the medical witnesses that the plaintiff was anything but genuine. In fact, Mr Dooley described her as such.
68 I did form the view the plaintiff exaggerated on some aspects of her evidence which I have addressed. Accordingly, I will be more influenced by her evidence when supported by the independent evidence.
Analysis of the evidence
Right shoulder injury
69 The current medical evidence in relation to the plaintiff’s right arm was that of Dr Coughlan, general practitioner; Mr O’Loughlin, orthopaedic surgeon; Dr Sutcliffe, occupational physician, and Mr Dooley, orthopaedic surgeon. The majority of the medical evidence[24] was that the plaintiff sustained injury to the right upper limb in the course of her employment in 2000.
[24]Dr Coghlan, Mr O’Loughlin and Dr Sutcliffe
70 Dr Coughlan and Dr Sutcliffe accepted the plaintiff injured her right shoulder but did not describe the nature of the injury. Neither medical witness referred to an aggravation injury.
71 Mr O’Loughlin said the plaintiff had underlying degenerate changes affecting the acromioclavicular joints on both sides, which was aggravated by the injury on the right side. Mr Dooley said the plaintiff had a constitutional or naturally occurring degenerative process affecting both shoulders, but he did not believe the pathologies had been caused by the work-related incident or that any aggravation of the underlying process occurred in the incident.
72 I accept the view of Mr O’Loughlin, as he saw the plaintiff on two occasions and his expertise is in orthopaedics.
73 The Court must consider what the evidence discloses as to the prior condition of the plaintiff, and determine whether the additional impairment resulting was “serious”. In Petkovski v Galletti,[25] the Full Court said that a comparison must be made of the condition of the applicant immediately before the accident with her condition thereafter, and an assessment made of the extent of the additional impairment.
[25][1994] 1 VR 436
74 I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after February 2000 is “serious”.[26]
[26]Petkovski v Galletti (supra)
75 The plaintiff’s evidence was that she had no previous shoulder injury. She had good health and did not suffer pain prior to the injury.
76 I accept the plaintiff’s evidence that prior to the work-related injury, she was symptom-free. Accordingly, I accept the consequences the plaintiff described are as a result of the injury to her right shoulder in 2000.
Is the injury work related?
77 Counsel for the defendant submitted that there was an issue as to causation as there was a long period between the incidents which the plaintiff alleges caused the injury and treatment.
78 The plaintiff’s evidence is that she was injured at work on two occasions in early February 2000, three days apart, when a fifteen-year-old autistic student attacked a wheelchair-bound student. The plaintiff intervened and the autistic student, amongst other things, took hold of the plaintiff’s right arm and twisted it forcefully behind her and up her back. On 7 February 2000, the same student attacked the plaintiff, punching, hitting and grabbing her. After the second incident, the plaintiff said in her affidavit that she sought medical treatment, was prescribed medication and was off work for a short period. She was struggling with work because of ongoing pain in her neck, right shoulder and right arm. During 2000, she had chiropractic and later, massage treatment. This is consistent with what the plaintiff reported to her general practitioner, Dr Coughlan, in July 2002, Mr O’Loughlin, Mr Dooley and Mr O’Brien.
79 The plaintiff completed a WorkCover Worker’s Claim Form in June 2003 and indicated the date of injury was 4 and 7 February 2000 and that she first noticed her injury/condition approximately three to six months later. She stated in the form that she reported the injury to Margaret Rice, the principal, on 4 and 7 February 2000, and that the injury on 7 February 2000 was witnessed by Kerry Farrugia.
80 The majority of the medical witnesses accepted the plaintiff’s injury was work related. Mr Dooley said the plaintiff suffered a soft-tissue injury to her right elbow which was worked related. He did not accept the shoulder symptoms were work related because of the timing of the development of the shoulder symptoms, which he thought was about twelve months following the incident, and the pathology. He said the plaintiff’s pathology was similar in both shoulders, which indicated a constitutional or naturally occurring degenerative process affecting each shoulder similarly. He did not believe that these pathologies had been caused by the work-related incident or that any aggravation of the underlying process occurred in the incident. Mr Dooley saw the plaintiff on one occasion in 2013.
81 I accept the views of the majority of the medical witnesses, as in most instances they saw the plaintiff on more than one occasion, and in the case of the general practitioner, was treating the plaintiff since 2002.
82 When considering whether the right shoulder injury is work related, I can take into account the fact that the employer was paying compensation to the plaintiff. In Ansett Australia Ltd v Taylor,[27] Ashley JA said that in cases where liability in relation to a claim was accepted:
“… such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[27][2006] VSCA 171
83 In this case, no explanation was provided to the Court. Accordingly, I accept the evidence that there was a causal relationship between the injury the plaintiff suffered, and work.
84 In this case, the plaintiff claimed a physical injury as well as a psychological injury. I must be satisfied, on the balance of probabilities, that the organically-based pain and suffering consequences satisfy the statutory criterion.[28]
[28]Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46
85 The Court must examine the consequences of a physical impairment in the separate context of:
(a)pain and suffering; or
(b)loss of earning capacity.
86 As stated, the provisions of s134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[29] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[30] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[31]
[29]s134AB(38)(b), (c) and (d)
[30]s134AB(38)(e), (f) and (g) of the Act
[31]Advanced Wire & Cable Pty Ltd v Abdulle (supra) at paragraph [63]
87 Accordingly, it is appropriate for me to look, first, at the various tests for loss of earning capacity which must be satisfied by the plaintiff in respect to the right shoulder injury.
Narrative test – loss of earning capacity
88 The plaintiff’s evidence was that since the incidents in early 2000, she struggled to continue working as a primary school teacher whether full time, part time or as a casual because of her injuries. She continued working full time in Term 2 of 2000. In Terms 3 and 4, she reduced her hours of work to part-time, two to three days per week. In 2001 and 2002, she worked as a casual relief primary school teacher, but struggled with teaching duties because of ongoing problems with her right shoulder and right arm. In 2003, she worked as a physical education teacher at a primary school, and for a short period at the special development school in Traralgon for two days per week. In 2004, she completed the fourth year of her Bachelor of Education in primary teaching, but was unable to obtain permanent work as a primary teacher. During 2005, she worked as a casual relief teacher, and because of ongoing problems, she reduced her hours of work and continued with casual relief teaching in 2006. She has not returned to primary school teaching since December 2006 because of her injuries. Later, her qualifications as a teacher lapsed.
89 The plaintiff said she valued her role and career as a teacher, which has now been lost to her because of her right shoulder injury. She said she has lost her confidence in her ability to teach.
90 The plaintiff said between December 2006 and July 2010, she worked for a friend who was a financial planner. The plaintiff performed administrative and clerical duties and babysat his children, supervising their homework and, on occasions, preparing meals. Her hours varied. Generally, she worked between 10 to 15 hours per week and worked up to 35 hours per week, but not very often. She said she would have difficulty working in clerical/administrative work for a sustained period of 35 hours per week. In cross-examination, she said she predominately worked between 20 and 25 hours per week. She said the employment gave her flexibility to attend medical appointments and accommodated days when she was suffering pain.
91 In cross-examination, the plaintiff said she had applied for jobs locally at retail shops and on the internet. She believes she can work part time, and would like to work part time. She said every fortnight she goes to the disability employment provider through Centrelink to apply for jobs. The plaintiff conveyed to the Court on a number of occasions her need to work for financial reasons.
92 I must also consider what the medical witnesses say as to the plaintiff’s work capacity.
93 Dr Coughlan said the shoulder injuries and depression are currently disabling the plaintiff from pre-injury work. He did not disentangle her incapacity for work due to her right shoulder injury from her incapacity due to her psychiatric condition.
94 Mr O’Loughlin said the plaintiff should have some re-training through the Education Department and be eased into some type of work within the Department. He said she could certainly teach from a physical point of view.
95 Dr Sutcliffe, the occupational physician, said that as a result of the plaintiff’s right shoulder injury and right elbow injury, she had sustained permanent impairment of function with loss of capacity for her pre-injury duties now and into the foreseeable future. She said the plaintiff had no capacity to return to her occupation as a teacher now or into the foreseeable future, either as a primary school teacher, a librarian, or as a special school teacher. She said the plaintiff had some capacity to undertake limited administrative work, but this would need to be in a situation where she was able to self-pace her activities. She believed the plaintiff could obtain employment as an administrative assistant but would be limited to three to four hours, three days a week, which will continue into the foreseeable future.
96 Mr Dooley said from an orthopaedic viewpoint only, the plaintiff had the physical capacity to carry out some light physical work and clerical duties. She would have difficulty carrying out activity at or above shoulder level. He said the plaintiff would have a physical capacity to work as a teacher, depending on the age group of the students. He believed she had a physical capacity to work in an administrative/clerical position.
97 In respect to the medical evidence of the plaintiff’s capacity to work, I am more influenced by the evidence of Dr Sutcliffe. Dr Sutcliffe is an occupational physician, and by her expertise is qualified to comment on whether or not an individual has a capacity to do particular work.[32] Relying upon the evidence of Dr Sutcliffe, I accept the plaintiff could work 12 hours a week as an administrative assistant. The plaintiff thought she could work up to 16 hours per week.
[32]Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [96]
98 The plaintiff is aged fifty-one years. Most of her employment has involved teaching. The evidence is that she worked as a teacher until her children were born and returned to teaching when her children went to school. She was teaching full time when she was injured. She continued to teach despite her injuries but had to reduce her hours to part time, then casual, and has not been able to return to the teaching profession since December 2006. She pursued study at university level to improve her qualifications. The plaintiff lost the capacity to teach and is no longer able to engage in full-time employment.
99 The plaintiff told doctors that she would like to work and, in fact, worked in protected employment provided by a friend until that work was no longer available.
100 I am satisfied that it is fair to describe the consequence of this plaintiff’s loss of earning capacity as being “more than significant” or “marked” and properly described as “considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments.
101 Dr Coughlin said that the plaintiff’s prognosis was uncertain and that the probability is for long-term shoulder problems. Dr Sutcliffe said the plaintiff’s reduced work capacity will continue into the foreseeable future. Given the medical evidence and that the right shoulder injury has continued since 2000, I am satisfied that the plaintiff’s injury to her right shoulder is permanent.
102 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The statutory test – loss of earning capacity
103 It is not in contention that the plaintiff’s “without injury earnings” figure is $45,725. Sixty per cent of that figure is $27,432. The Flexi Personnel report provides figures of between $17.41 an hour, up to $21.15 per hour. When the plaintiff was working with Gary Henderson, she was getting paid $20 per hour. I accept that the appropriate level is that set out in Level 3 of $20.14 per hour. Dr Sutcliffe said the plaintiff could work a maximum of 12 hours per week, which is $241.20, and that is approximately $12,500 a year. The plaintiff thought she could work 16 hours a week, which would total $322.24 per week, or $16,756 a year. Between December 2006 and July 2010, the plaintiff was working between 20 and 25 hours per week; however, I accept that was protected employment. I accept the plaintiff can work up to 25 hours per week in a workplace which allowed her to take breaks as required and attend medical treatment. If she obtained suitable employment working 25 hours per week, her total weekly earning would be $503.50, which is $26,182 per year. Accordingly, I conclude the plaintiff has greater than a 40 per cent loss.
104 I am also required to consider issues of re-training and rehabilitation pursuant to ss(38)(g) of the Act. The only doctor to suggest re-training was Mr O’Loughlin, who thought the Education Department should offer the plaintiff re-training. No training has been offered or provided by the defendant. I am required to assess the application on the current position. There was no evidence that rehabilitation would assist the plaintiff. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Therefore, I am satisfied the plaintiff satisfied the 40 per cent requirement and has sustained an injury within s134AB of the Act.
105 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental condition is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
106 In view of my findings in relation to the physical injury, and the Court of Appeal decision in Georgopoulos v Silaforts Painting Pty Ltd,[33] it is not necessary for me to consider the plaintiff’s claim under paragraph (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
[33][2012] VSCA 179
107 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
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