Cherval v Assisi Centre Aged Care

[2014] VCC 1546

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-12-00775

LIETTE CHERVAL	Plaintiff
v
ASSISI CENTRE AGED CARE	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 20 August 2014
DATE OF JUDGMENT:	16 September 2014
CASE MAY BE CITED AS:	Cherval v Assisi Centre Aged Care
MEDIUM NEUTRAL CITATION:	[2014] VCC 1546

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:           Damages – serious injury – impairment to the right 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; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                 Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram with Mr P Bourke	Adviceline Injury Lawyers
For the Defendant	Ms M Britbart	IDP Lawyers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant from 2005 until August 2009 (“the period of employment”).

2 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.

3 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.”

4     The body function relied on is the right shoulder and the cervical spine.

5 By s134AB(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”.

6     Apart from being a “serious injury”, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

7     The impairment of the body function must be permanent.

8     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.

9     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.

10   Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

11   Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.

12   Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

13   I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

14   The plaintiff relied upon two affidavits and gave viva voce evidence.  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

15   The plaintiff is presently aged sixty-six, having been born in February 1948 in Mauritius.  She was educated to Year 11 and migrated to Australia with her family in 1964.

16   The plaintiff had a transport accident in 1968 where she injured her right shoulder, but believed she had fully recovered from it and had no ongoing problems until her present trouble started with the defendant.

17   After a number of short-term employments, the plaintiff entered a convent between 1970 and 1972.  In 1976, she obtained her qualifications as a Division 1 Nurse.  She worked as a nurse in Australia and overseas.  Between 1984 and 1991, the plaintiff nursed whilst a member of the religious order, The Little Sisters of the Poor.[3]   

[3]Transcript “T”37

18   The plaintiff also worked for four years as an assistant director of nursing at an aged care facility in New South Wales, during the course of which she suffered a back injury and required about a year off work to recover.  Thereafter, she undertook six months retraining in office work and worked in that capacity at a hospital for a further six months.  The plaintiff then worked for a further four years at various aged care facilities in Queensland.

19   The plaintiff originally worked for the defendant via a nursing agency, Nursing Australia (“the Agency”), as a Division 1 Nurse.  Ultimately, she commenced employment with the defendant in about September 2003, where she continued until resigning in August 2009.

20   Working in high care, the plaintiff worked ten-hour shifts and nine-hour shifts in low care.  High care work involved thirty patients and low care, ninety.

21   The plaintiff worked up to four nights a week with the defendant.  In mid September 2005, it was decided to make her work permanent, with two nights in high care, Sunday and Monday, and working in the hostel on a Saturday on a nine-and three-quarter-hour shift.[4]

[4]T39

22   The plaintiff also did agency work three days a week and sometimes the Agency would call her for four days work.  On average, as at the said date, she was doing three days agency work a week, working shifts of 6.5 to 10 hours.  On average, she was doing between 20 and 24 hours agency work a week from August 2004, and she was working 29 hours on average with the defendant.[5] 

[5]T40

23   The plaintiff explained that in the 2004-2005 financial year, she earned $64,000 with the defendant as she was doing more work for it because one of its nurses was on maternity leave.  She thought she had earned a lot more than $11,000 with the Agency in that year.[6]

[6]T43

24   The plaintiff disagreed she did agency work on a sporadic basis.[7]

[7]T132

25   The plaintiff agreed in the 178-week period between 16 January 2002 and 30 August 2005, she worked an average of eleven and a half hours a week with the agency.  She also confirmed that in the last week of August 2005, she worked twenty and a half hours.[8]

[8]T106

26   On 3 October 2005 (“the first date”), the plaintiff fell over a box on the floor whilst carrying a Jevity can.  She fell heavily onto the box, striking her abdominal region, and then onto the floor.  All the while, she maintained her grip on the can which struck the floor and caused her to jar her right shoulder heavily (“the first incident”).

27   An ambulance was called but no fracture was identified and the plaintiff was referred to a local doctor.  As her usual general practitioner, Dr Rose, was away, the plaintiff saw Dr Tiang, who prescribed Digesic that day. 

28   On 7 October 2005, Dr Rose referred the plaintiff for an x-ray and ultrasound of her right shoulder, which the plaintiff understood demonstrated the presence of a full thickness partial tear in the supraspinatus tendon.

29   The plaintiff had pre-existing diabetes and believed that because of that and her age, a decision was made to pursue conservative treatment and she was referred for physiotherapy. 

30   The plaintiff continued with light work at the defendant’s premises but was not permitted to perform any further additional work with the Agency which she had been able to undertake prior to then.

31   The plaintiff’s duties were lighter on paper only but not in reality.  She had lifting restrictions and restrictions on the time spent sitting.  She had to have rest breaks and she was not allowed to do any patient handling.[9]

[9]T46

32   Whilst at work, the plaintiff continued to have ongoing problems with her right shoulder through simple incidents.  For example, residents, many of whom suffered dementia, might grab or hug her and place strain on her right shoulder.

33   The plaintiff complained to the Director of Nursing (“the DON”) but nothing was done to protect her against the risk of these incidents.

34   Dr Rose referred the plaintiff for a further ultrasound on 25 November 2005, which she understood confirmed a persisting full thickness tear of the supraspinatus tendon in the right shoulder, as well as subacromial bursitis.

35   Because of persisting problems in December 2005, the plaintiff was referred to orthopaedic surgeon, Mr Sutherland.  He injected her right shoulder with cortisone in December 2005 and March and July 2006.  These injections provided only temporary relief from her symptoms.  She understood she could only have three injections.[10]

[10]T46

36   Mr Sutherland also referred the plaintiff for a further ultrasound in August 2006 which again identified a full thickness tear.

37   The plaintiff agreed over the following year, 2006, she sometimes got an aggravation of her shoulder pain at work and she would go to the physiotherapist or have another injection.  She went back to Mr Sutherland because her shoulder was not improving but as soon as it started feeling better, something happened at work with the staff; she could not prevent things happening.[11]

[11]T46

38   Again, because of her diabetes and age, Mr Sutherland advised the plaintiff to pursue conservative treatment.

39   The plaintiff disagreed her ability to cope with work without significant increases in pain got better and better in 2006.  She agreed she told Mr Sutherland in September 2006, two months after the last injection, that her pain was minimal unless there was a sudden movement or she did any heavy lifting at work.[12]  She also agreed that at times, her range of movement was dramatically better as the physiotherapist, Ms Dundee, reported.[13]

[12]T47

[13]T48

40   The plaintiff agreed there would be improvement for a period of time and then something would happen.  There were ups and downs.[14]

[14]T48

41   The plaintiff continued work with the defendant subject to a restricted duties certificate.  That led to increasing problems within work because the DON largely ignored her problems and the other nursing staff felt the plaintiff was not pulling her weight at work.  Hence, there were underlying tensions within her work environment. 

42   One of the plaintiff’s difficulties was to care for ninety residents in low care where she was employed.  There was an additional section of thirty high level care residents, where three able bodied staff were required.  However, only two nurses were assigned to the shift and the plaintiff was not a full able bodied person in terms of the nursing care which might be required to assist the residents.  Thus, there was a degree of friction within the work environment.

43   That led to discussions in late 2005 about a spare nurse being allocated to assist and the plaintiff could recall Dr Rose, in early 2006, giving her some time off because of persisting shoulder problems, although there was no further WorkCover claim then submitted.

44   The only time that restrictions were followed on paper was the short period when another nurse was allocated but that situation had ceased at the end of 2006.[15]  Rest breaks were not given; she really just had a smoke.

[15]T110

45   The plaintiff agreed Dr Rose’s certificates in September and October 2007 allowed for patient handling, as Dr Rose directed the plaintiff if turning patients, to keep her elbows locked into her trunk.[16]  However, Dr Rose told her to avoid going near residents but if she had to, she should handle them in the manner directed.

[16]T131

46   The plaintiff confirmed further difficulties with her right shoulder on 18 March and 12 July 2007 when she was working on the ward alone and had no assistance.[17]

[17]T113

47   Things continued along in this less than ideal way until the plaintiff was involved in the second incident.

The second incident

48   On 17 December 2007 (“the second date”), the plaintiff bent down to select an incontinence pad in the storage room and inadvertently knocked the item upon which the shelves were situated which caused them to dislodge, striking her on the head and right shoulder (“the second incident”).

49   The plaintiff did not lose consciousness but she could remember seeing stars.  She suffered a laceration to the side of her head and subsequently suffered from ongoing headaches.  The striking of her right shoulder caused her to suffer increased symptoms in the already injured part of her body.[18]

[18]T51

50   The plaintiff sought further medical treatment from Dr Rose and was referred for a cervical x‑ray in December 2007, which she understood demonstrated some degenerative changes at C5-6, C6-7 and C7-T1.  Dr Rose subsequently arranged a CT scan which the plaintiff understood confirmed the presence of degenerative changes.

51   After the second incident, the plaintiff had two and a half months off work.  She visited her dying parents in Queensland in February 2008.  She did not need strength to look after them because her mother weighed 35 kilograms.[19]

[19]T52

52   Dr Rose took a number of steps to try and help the plaintiff out.  A number of times she was put off work to try and get some rest.  She was also certified for light or modified duties and restricted hours of work.

53   The plaintiff was referred to a neurologist, Dr Mullen.  He was the only specialist to whom she was referred after the second incident.  She was sent to him because of ongoing headaches and neck pain.[20]

[20]T53

54   Dr Mullen also supported further time off work and felt that by reason of her injuries, it would be very difficult for the plaintiff to return to her nursing duties in the long term.  Dr Mullen had suggested the plaintiff stop work when she first saw him.

55   The plaintiff also saw Ms Dundee, the physiotherapist, whom she had seen before.  Funding for physiotherapy was terminated in April 2008.  Dr Rose would have suggested the plaintiff continue receiving this treatment had funding continued.[21]  The plaintiff did not want to stop physiotherapy; funding was ceased.[22]

[21]Medical practitioner questionnaire 16 August 2008

[22]T127

56   From this time on, the plaintiff suffered increasing right shoulder symptoms in addition to neck pain and persisting headaches.  Her work situation deteriorated because she was finding it more difficult with her injuries and there was no real support for her in the workplace.  All the time off work only compounded the problems within the work environment in terms of the plaintiff’s relationship with other staff.

57   In August 2008, the plaintiff had difficulty moving a very heavy resident who grabbed her right arm.[23] 

[23]T114

58   The plaintiff agreed, as Dr Rose noted in October 2008, that she was then experiencing a constant buzzing in her head when working, stressed and tired.  That “buzzing” is still there now and was one of the reasons she had been sent to Dr Mullen; however, he felt there was nothing he could do for her. 

59   The plaintiff agreed the buzzing decreased when she was in Queensland in early 2009 but it always used to get bad as soon as she thought of actually having to go to work.[24]

[24]T57

60   The plaintiff agreed she wanted to do agency work but was not allowed to.  The agency would not employ someone who was on WorkCover unless they were released.  She had never had an assessment from the defendant.[25]

[25]T57

61   The plaintiff had the opportunity to choose low stress type jobs working as a Division 1 agency nurse.[26]  However, by the end of 2008, she was getting very tired and she also had not had an assessment.[27]

[26]T59

[27]T60

62   The plaintiff was not permitted to work with the Agency because she had injured herself and it would be liable for further injury.  Agency policy was to not employ nurses who had had an injury.[28]

[28]T108

63   There was a problem with Webster packs at work in January 2009; it was awkward for the plaintiff to reach in and get them from the cupboard and she hurt her shoulder and required the assistance of a registered nurse.[29]

[29]T62

64   The plaintiff also agreed there were stress related problems around that time in early 2009, and that she was depressed, full of aches and pains and she was upset about a meeting that was not pre-arranged.[30]

[30]T62

65   The plaintiff agreed the problems at work in the beginning of January 2009 were political in nature, with people blaming others for problems and that was causing her stress.  She was also getting worse and by that time, was really getting tired.[31]

[31]T63

66   The plaintiff agreed she was doing exercises in March 2009 given to her by her physiotherapist.  From time to time, her neck had become sorer and she had problems of neck stiffness.[32]

[32]T67

67   The plaintiff agreed, having had monthly visits to her general practitioner, the visits became three monthly because she did not need certificates as frequently.  There was no change in her prescription.[33]

[33]T68

68   There was the issue in April 2009 when a change in national health policy meant more incapacitated people were being left at the defendant’s premises rather than going to a nursing home.

69   Dealing with this increased load, the plaintiff used to be in pain every day, all day.  When she got home she would have a hot shower to try and take the pain away but it did not.  She would go to bed and it was still sore and she used to take a Di-Gesic.[34]

[34]T116

70   By that stage, she had had the neck injury and had further issues with problems with typing and putting her head down.  The work was there, you had to cope with it.[35]

[35]T116

71   There was a more understanding nurse who worked with the plaintiff in April 2009 who helped with reports but there was still the troublemaker whom the plaintiff believed made unfounded complaints against her.[36]

[36]T55

72   At times, the DON would make the plaintiff redo particularly taxing jobs.

73   Ongoing staff shortages made the plaintiff’s shoulder and neck pain worse and that pain caused her stress.  It was like a rebounding ball.[37] 

[37]T119

74   The plaintiff agreed in June 2009 that she felt a lot better and did a lot of exercise and meditated regularly and her medication was assisting her.  She agreed that on a bad day, the pain would radiate down her arm and that she had occasional problems with shoulder and neck pain and the “singing head”.[38]

[38]T69

75    The plaintiff disagreed that physically she was having intermittent problems with her right shoulder requiring less medication than she needed previously in late June 2009.

76   Whilst Dr Rose reported at the end of June 2009, brufen had ceased and Di‑Gesic had been reduced, the plaintiff stopped brufen because it made her vomit and the plaintiff thought it was better to take one Di-Gesic.  At that stage, the plaintiff had had six months of just working, going home, sleeping and doing practically nothing.[39]

[39]T80

77   Dr Rose would see the plaintiff one day and her range of movements would be good after she had a good sleep.  She did not go to see Dr Rose every time she had pain.  She denied she was feeling good with her work and she needed less medication than before.[40]

[40]T70

78   The plaintiff deposed that she began to feel stressed at work and by 2009, was finding it difficult to face going to work and she ultimately resigned in August with effect from 4 September 2009.

79   The real problem was physically the plaintiff could not keep up with the demands of her job and that created persisting friction, not only with her superiors but with other nursing staff.  She had not returned to work since.

80   The problem was by the third day of her three-day week, quite a few times the plaintiff could not go to work on the Monday.  She could not handle it because the pain was too bad.  That was specifically towards the end of 2009 and there were many Mondays she did not go to work because she could not handle it.[41]

[41]T120

81   As of August 2009, Dr Rose’s description on the plaintiff’s certificate of the plaintiff on a bad day having neck pain radiating down the right arm was correct.[42]

[42]T126

82   The plaintiff saw Dr Rose on 17 August 2009 when she reported disciplinary action being taken against her and being given a letter.[43]  The plaintiff agreed she was stressed and fatigued and burnt out and there was stress and increased pain in the injured parts of her body.[44]

[43]T71

[44]T72

83   The plaintiff tendered her resignation in August 2009, at which time she felt sick at the thought of working for the defendant.

84   The plaintiff agreed she felt harassed by the DON and that situation revived the memories of an incident at the age of six months.  There had been unexpected visits from the DON since 2005.[45]  She turned on the plaintiff after she made a WorkCover claim and was injured.  Prior to that they had been friendly.[46]

[45]T74

[46]T121

85   The plaintiff explained she told doctors that she left work because she told them she had no more strength, that she was burnt out and had no ability to cope with things.[47]  By August 2009, the plaintiff felt zero level of strengthening or energy and could not handle it.

[47]T75

86   The plaintiff would have been capable of doing the training to train nurses if she had done it in 2008.[48]   By the time the plaintiff left in August 2009, she did not think she could have done the training because she could not concentrate on anything else.

[48]T123

87   The plaintiff attended Dr Rose on 17 August 2009, the day she left work.  She agreed, as Dr Rose recorded, work stress had increased since 9 August 2009.  She agreed there was an increase in her buzzing in her head with increased stress.

88   The plaintiff denied she resigned because she felt despondent about her working situation, saying she had run out of strength completely.  It was just due to the whole situation.

89   The conflict with the DON was not the full story why the plaintiff left.  She was physically exhausted.[49]  Exhaustion brought on the pain in her shoulder and they were all linked together, hence she resigned.[50]

[49]T81

[50]T84

90   The plaintiff gave the example of a car running on empty for the last six months and then just on the last spare tank.  She was doing a lot of computer work then and was having contact with the union complaining of her work difficulties.[51]

[51]T85

91   The plaintiff’s sister worked in Morisset, New South Wales.  Their parents had died in 2008 and left the plaintiff some money, so she decided to move to be with her sister in November 2009.  She hoped her injuries would improve but that did not occur. 

92   The plaintiff bought her New South Wales property on 20 August.[52]  She had earlier been considering buying within Victoria.[53]

[52]T78

[53]T82

93   As of her September 2011 affidavit, the plaintiff believed her injuries, particularly her right shoulder, but to a lesser extent, neck pain and headaches which she had constantly, had caused her to lose capacity for employment.

94   The plaintiff’s working life was spent as a nurse and but for her injuries, she had intended to continue in that job until at least sixty five and probably seventy.  The plaintiff is single and always loved nursing.

95   The plaintiff’s problems at work were due to the fact she could not keep up with the work and this created difficulties within the work environment.

96   From the onset of her right shoulder injury in 2005, the plaintiff lost an additional 12 to 20 hours per week agency work through Nursing Australia.  Additionally, because of her physical injuries after the first incident, she was never able to return to unrestricted nursing duties which led to problems in her work environment. 

97   The plaintiff believed that, effectively, she had lost the capacity to work as a nurse as a result of the subject injuries and had suffered considerable financial loss as she was able to earn about $70,000 gross a year in work with the defendant and in agency work.

98   The plaintiff thought it was reasonable psychological issues were still on her mind and causing her a level of distress during 2011 because she had lost her job and did not have money.  She was used to having enough money to not have to worry.[54]

[54]T96

99   The plaintiff then continued to suffer ongoing variable levels of right shoulder, head and neck pain.  She had a full thickness tear of the right supraspinatus which was the largest tendon in the right shoulder and that had significantly restricted her ability to use her right dominant arm.  She was restricted in her ability to carry things or manoeuvre her arm.

100    If the plaintiff raised her arm, she suffered increasing pain the higher she raised it and she was not able to hold her arm in the raised position.

101    The plaintiff’s sleep had been affected because she used to sleep on her right side but was no longer able to do so because of pain.  Often when resting she put a pillow under her right arm to try and relieve pain.

102    The plaintiff took Di-Gesic and the antidepressant, Oxazepam, at night to help her sleep, and also valium as a relaxant.

103    When doing housework, the plaintiff had to do things a little bit at a time so as not to overexert herself.  If she strained her right shoulder, she certainly paid for it with increased pain.

104    The plaintiff had been repeatedly advised her right shoulder injury was not amenable to surgery because of her diabetes and age and, accordingly, she believed she was likely to suffer ongoing shoulder symptoms for the rest of her life.  She found the best way to restrict right shoulder pain was to avoid using her arm as much as possible. 

105    The plaintiff suffered variable levels of neck pain and also headaches on a daily basis.  She suffered a sensation of hearing a noise in her head and finding the headaches tended to deteriorate the further the day progressed.

106    Since moving to New South Wales, the plaintiff had continued to receive medical treatment.  She saw Dr Hossain about monthly and he gave her a total incapacity certificate and also prescribed medication. 

107    The plaintiff had also received psychological counselling, initially from Ms Bauer, who had left the district and, in more recent times, Ms Merlino.  She found such counselling useful in dealing with the psychological response to her physical limitations from which she had suffered.  She also consulted psychiatrist, Dr Spruce.

108    The plaintiff swore a further affidavit in July 2014.  She was then seeing Dr Hossain about every three months.

109    The plaintiff started with Dr Hossain in April 2010 and he referred her to a psychologist with whom she discussed the memories of something happening as a baby.[55]

[55]T87

110    Dr Hossain did not take notes and did not talk to her about her shoulder initially.  The plaintiff thought he had her file from Dr Reid.

111    Dr Hossain was treating the plaintiff for physical injuries, prescribing her Di-Gesic and suggesting physiotherapy.[56]

[56]T88

112    The plaintiff was sure there was more than the mention of Anxiety Disorder and Depression in her certificate.  She told him about the pain.[57] 

[57]T90

113    Dr Hossain, whilst initially saying she could return to full-time nursing, gradually got to know the plaintiff more fully and changed his view.[58]

[58]T99

114    The plaintiff told Dr Hossain about her shoulder and her head.  She told him she left because she did not have any more strength.[59]  She had a discussion with him about his comments that she could return to work.  He told her he had changed his view the more he got to know her.[60] 

[59]T128

[60]T129

115    Dr Hossain referred the plaintiff to Dr Spruce, psychiatrist, whom she saw once[61] and she took Avanza.  She only took half a tablet because of side effects.  She then started seeing Elke Brauer, psychologist.

[61]T96

116    The plaintiff last saw Dr Rose in 2012 when she organised a brain scan to investigate the headaches and the “buzzing”.  Dr Rose made a further referral to Dr Mullen.

117    Over 2012, the plaintiff saw Dr Mullen several times but unfortunately he could not provide a clear diagnosis.  He prescribed Amitriptyline, which she found very helpful in relieving her back, shoulders, neck and head pain and also lowered the noise in her head.  After a period the plaintiff had to stop taking this drug as she had severe side effects causing, inter alia, severe retention which was uncomfortable and painful.  No further medication was prescribed and she had not returned to see that practitioner. 

118    The plaintiff disagreed she stopped seeing Dr Mullen because she would not follow his medication regime.  He told her he could not diagnose the condition and there was no more he could do for her.[62]  He did suggest she do another job.

[62]T93 and T95

119    In about January 2013, the plaintiff last saw her physiotherapist, Ms Vallaba.  The plaintiff cannot afford long-term physiotherapy and cannot justify the expense when it provides her only temporary relief.

120    Recently, the plaintiff’s sister lent her money to purchase a handheld massager which she uses on her back and neck twice a week, the maximum advised.  It is helpful in providing the plaintiff with an affordable means of obtaining temporary relief from that pain but she has not been able to use it on her shoulders or head.

121    The plaintiff currently takes Panadol in the evening to treat ongoing pain and she takes one Di-Gesic when there is very sharp pain.  She has tried to avoid taking Di-Gesic unless her pain becomes unbearable because she has side effects such as heart palpations and irregular heartbeats which she finds very concerning. 

122    The plaintiff cannot take Di-Gesic every day because of the side effects.  She takes Panadol every night.  She explained if she took medication on a regular basis it would not have the same effect.[63]

[63]T100

123    In addition to this medication, the plaintiff also takes half or a quarter Oxazepam at night to help her sleep, as the pain in her shoulder, neck, back and head often makes it difficult for her to get to sleep.  Although she has always had trouble getting to sleep easily, this situation has worsened since the first incident.

124    The plaintiff’s physical status has remained predominantly the same as when she swore her earlier affidavit.

125    The plaintiff’s neck pain is present throughout most of each day, the severity of which is largely dependent on whether she aggravates her neck.  It gets particularly aggravated when she hangs clothes on the line or when she is required to reach for something placed at a height. 

126    If her neck pain got worse, it went down into her shoulder.  The whole thing was linked.[64]

[64]T91

127    The plaintiff has never been pain free.  It is just the level that she can handle.

128    When the plaintiff got stressed, everything hurt.[65]

[65]T122

129    The plaintiff has only recently regained strength at the age of sixty-four.  The buzzing feeling in her head has decreased but it is still there.[66]

[66]T86

130    Whilst she has regained a little bit more energy, it is not an excessive amount of extra energy.  She can do things around the house at a slow pace.  Her main problem is with repetitive movement.[67]  The Di-Gesic makes the headache worse and she takes it for her neck. 

[67]T101

131    The plaintiff started regaining energy at the beginning of this year.[68]

[68]T124

132    The plaintiff has had to make various accommodations to ensure she is able to complete her daily chores.  She restricts the number of items she puts on the clothesline.  She uses a stepladder when reaching at heights where possible.  These accommodations mean that it will often take her a lot longer to complete a basic task and she finds that incredibly frustrating.

133    In the evening, the plaintiff has also had to sleep on two pillows to ensure her neck is kept as straight as possible and pillows have been helpful in relieving the pain in her neck when sleeping; otherwise she gets woken up when the stack of pillows collapses or slides away.

134    The plaintiff described problems sleeping and ongoing problems during the morning because she had put pressure on her right shoulder.[69]

[69]T107

135    The plaintiff believes the neck pain is the predominant cause of her head pain which experiences daily.  The lingering headaches make it very difficult for her to concentrate on anything throughout the day.

136    The plaintiff tries to relieve head pain through providing herself with daily head massages with warm water which provides some temporary relief.

137    The plaintiff continues to experience the noise in the head which she has been advised by Dr Mullen is not tinnitus.  It is best described as a high pitched “C note”.  The plaintiff feels the intensity of that noise varies depending on how well she slept and how emotionally stressed she feels. 

138    The plaintiff’s right shoulder is persistently sore and the pain causes her many daily restrictions.  For example, she needs to place restrictions on the amount of weight she can carry and she finds with time, her capacity to lift things is reducing. 

139    The plaintiff finds repetitive movements such as chopping vegetables or preparing for dinner difficult and strenuous on her shoulder.  When chopping vegetables, she has to take regular breaks to avoid aggravating her right shoulder.  She needs to apply similar restrictions to sweeping, vacuuming and general cleaning of the house.  That makes it difficult to do much each day.  Currently, it takes her days to clean the house.

140    Repetitive use of her arm, rather than raising it above shoulder height, is the plaintiff’s main problem.[70]

[70]T48

141    The plaintiff does not need help in the retirement village with meals or home help.

142    The plaintiff has not worked since September 2009 and that inability to work and be productive is a difficult reality to come to terms with.  She does not consider herself productive each day and feels bored most days.  She wishes she was doing something worthwhile with her life.  Her current situation has caused her to feel quite depressed and she struggles to maintain a positive outlook towards life.

143    The plaintiff lives with her sister part time for roughly seven months of the year.  Her sister is unable to provide her with much company however, as she does not spend much time at home.

144    The plaintiff does not spend much time with family or friends.  She has a niece who visits once every two or three weeks with her husband.  When they visit, the plaintiff’s niece’s husband will often help the plaintiff with gardening.  Other than her niece, the plaintiff visits a neighbour on a weekly basis.

145    The plaintiff feels depressed very regularly and most days feels hopeless towards any prospect of her situation improving.  She struggles to be productive and useful each day and finds it difficult knowing that she is not doing something worthwhile with her life.

146    The plaintiff’s low back still causes her problems today, not increasing over the last few years.[71]  She has restricted tolerances because of it and had those problems while working for the defendant.  Problems are worse on and off than they were five years ago with activities like travelling and driving to Melbourne causing her back pain.[72]

[71]T37

[72]T38

147    The plaintiff confirmed that whilst she had ongoing low back pain, it did not interfere with her ability to work as a division nurse with the defendant and the Agency.[73]

[73]T104

Work

148    One of the plaintiff’s case workers at Centrelink encouraged her to write poetry and write a book in January 2012.  The plaintiff’s next case worker suggested she take a different approach and try counselling children.  However, the plaintiff did not do so as she was six months away from retirement age.  The plaintiff also gave up her nursing certificate in 2012.[74]

[74]T98

149    The plaintiff would not have been able to do work with children because she still had not recovered her full strength.  She could go to work for two hours but that was about it, and at that stage, she was having regular diarrhoea.[75]

[75]T98

150    The plaintiff has no experience, knowledge or qualifications in counselling of young children.[76]

[76]T130

151    The plaintiff could not do a job handing out medication in a hospital because elderly or dementia patients would put her at risk grabbing onto her.

152    The plaintiff agreed if she had had retraining, she physically could have coped with teaching other nurses, that is what she had planned to do before she resigned.[77]

[77]T103

153    On re-examination, the plaintiff explained she needed to have a certificate for assessment and training and she does not have an active nursing certificate now.[78]  She gave up her registration because of the expense.

[78]T103

154    The plaintiff would not be able to do her old level of work with her agency or with the defendant.

Investigations

155    Dr Rose organised an x‑ray and ultrasound of the plaintiff’s left shoulder on 7 October 2005.  It was reported there was a full thickness partial width tear at the anterior supraspinatus tendon insertion. 

156    Dr Rose organised another ultrasound of the right shoulder on 25 November 2005.  It was reported there was persisting full thickness supraspinatus tear involving anterior mid supraspinatus.  There was subacromial bursitis.

157    Mr Sutherland organised a right shoulder ultrasound in August 2006.  It was reported there was a full thickness supraspinatus tear of the distal supraspinatus tendon.  There were no signs of acute inflammation present. 

158    There was no dislocation or fracture in the right shoulder shown on a scan of 18 December 2007 organised by Dr Rose. 

159    Further, Dr Rose organised a CT scan of the brain and cervical spine on 7 January 2008.

160    It was reported no intracerebral abnormalities were demonstrated.  A cause for the plaintiff’s headaches had not been identified.  There was degenerative change at the C1-2 articulation.  There was a minimal broad based disc bulge present at C6-7 with endplate osteophytes with mild bony narrowing of the neural exit foramina for the C7 nerve roots bilaterally.

161    There was mild posterior endplate osteophytes present at C5-6 with narrowing of the disc height without central spinal canal or foraminal stenosis.

The Plaintiff’s treaters

162    The plaintiff has been attending the Livingston Street Clinic in Ivanhoe for many years.  Her treater at that clinic has principally been Dr Rose.

163    In her many detailed reports, Dr Rose noted the first incident following which there was stresses at work where the plaintiff was resented by other nurses as she was no longer able to continue working at her previous level and there were ongoing issues with staff shortages and inadequate support for the nurses.

164    Dr Rose referred the plaintiff to Epping Physiotherapy in October 2005 and then Ivanhoe Physiotherapy later that year.

165    Dr Rose noted there were ongoing incidents with residents who had dementia and wanted to grab the plaintiff’s arm or hug her.  There were three separate incidents in November 2005 when the plaintiff’s shoulder was jarred in these circumstances.  She was off work from 22 November 2005.

166    Investigations were organised in November 2005 which showed a persisting full thickness tear, and injections were started.

167    In December 2005, the plaintiff was referred to Mr Sutherland, who gave the plaintiff a series of injections.

168    Detailing the treatment in the interim, Dr Rose noted at a time when the plaintiff was approaching a level of recovery that promised an end result with no significant impairment, there was yet another injury that caused a serious set back.

169    Further to the head and right shoulder re-injury, the plaintiff had ongoing headaches and a significant aggravation of right shoulder pain as well as neck pain.  Further investigations were carried out and the plaintiff was referred to neurologist, Dr Mullen.

170    During February 2008, the plaintiff’s elderly parents died.

171    The plaintiff returned to work in March 2008.  In April 2008, she needed a couple of days off for neck strain and she was very sore at the back of her head, neck and both arms. 

172    After a heavy workload on 9 August 2008, the plaintiff reported she had a very sore neck and her neck joints were tender.  She needed three days off and then returned to modified duties.

173    In October 2008, the plaintiff reported a constant buzzing in her head.  She required time off in January 2009 with grief in the absence of her parents who died a year earlier.

174    Dr Rose noted the Webster pack incident in early 2009.

175    In June 2009, the plaintiff was feeling a lot better doing exercises and regular medication and the remaining pain was at the back of the neck and referred to the right arm on a bad day.

176    In August 2009, there were stresses again due to staff shortages.  The plaintiff was blamed for things that had gone wrong on nightshift.  After these events, she reached a stage of exhaustion and inability to face going to work.  She was getting headaches and feeling sick at the thought of work.  She bought a one bedroom unit in a retirement village up north and resigned.  After that decision, the plaintiff felt a lot better.

177    The plaintiff attended Dr Rose on 16 February 2010.  Thereafter, they spoke on the telephone, during which time the plaintiff reported functional restrictions.  She was not able to elevate her right arm at the shoulder for very long and she needed help to install curtains.  Sweeping had to be done in short bursts and the plaintiff had to use her left arm more with household tasks.  She was feeling angry about her disability and at times panicked about her future.  She had become vulnerable and less able to cope with threatening situations.

178    The plaintiff’s headaches from the head injury were continuing mainly right sided, associated with the noise in the top of the head that was constant but varied in severity.  A cycle of symptoms occurred, the onset of headaches triggered an increase in the severity of the noises in the head, followed by an increase in the right shoulder pain, moving down her arm, and then the range of movement was also restricted. 

179    The plaintiff was taking Panamax and Di‑Gesic for analgesia, valium to aid muscle relaxation, Serepax to aid sleep, Lyrica for neuralgic pain, physiotherapy and meditation.

180    Dr Rose diagnosed a partial thickness tear; synovitis of the sheath of the right longhead of the biceps tendon; subacromial bursitis; mild posterior broad-based disc bulge not present on CT in 2005; laceration; headaches and buzzing noise.

181    Dr Rose noted longstanding issues were overwork due to staff shortages; lack of support from her employer, more after injury; functional limitations and pain from her injuries; financial hardship, needing to give up a second job after injury and later, more so when WorkCover payments ceased; inability to return to paid employment; frustration at not being given time off to do training she could do to become an educator and continue to support herself, and psychological injury from the above.

182    Given the first incident was so long ago, Dr Rose noted that was a long time to be enduring physical, mental, emotional pain and suffering as well as financial hardship.  It was difficult to prognosticate as the plaintiff had moved to New South Wales and they did not have sufficient contact. 

183    To have some hope of recovery, Dr Rose thought the plaintiff would need ongoing rehabilitation to assist with reducing any remaining functional loss and she would need financial assistance for her treatment.  Reduction of stress and fatigue may then hopefully assist in reduction of the severity of headache and noises in her head.

184    Dr Rose thought the work injuries were fully responsible for the plaintiff’s loss of capacity to perform her pre-injury duties, compounded by being forced to do tasks she was supposed to avoid after her return to work due to staff shortages.  The changes in the CT scan since June 2005 were no worse than those in 2008. 

185    Suitability for alternative employment depended upon the extent to which the plaintiff’s emotional health, headaches and noises in her head affected her concentration and memory and therefore her ability to learn an alternative job and perform new duties; the availability of a suitable job for someone her age; whether the fatigue she experiences would be made worse by the duties and hours of alternative employment, thus possibly increasing her stress headaches and noises in the head and then affecting her ability to perform in that employment; the support that would be given to her by her new employer if she needed special consideration when she resumed work after such a long break from the workforce.

186    Dr Hossain certified in April 2010, he had been seeing the plaintiff since she moved to Morisset in New South Wales.  He noted apparently she had a couple of incidents at work a few years ago which had left her with a persistent headache and an injured right shoulder.  He noted she was still pretty depressed with the whole situation and the way she was being treated, and he had arranged for her to be seen by a psychologist.

187    In June 2010, Dr Hossain noted that the plaintiff injured her right shoulder at work in 2005 and had three more incidents until 2007.  These injuries had caused her to have a chronic headache but she was also having problems with the authority at work and it made her to go into depression and anxiety.

188    To Dr Hossain, they all appeared to be work-related injuries – physical and psychological – and he noted the plaintiff was currently having treatment but was stable.  He believed if she had a good working environment, she would be able to resume her pre-injury duties.

189    Dr Hossain reported in May 2012, when she came to see him from Victoria, the plaintiff complained of headaches, right sided shoulder pain, anxiety, nightmares and occasional diarrhoea.  She was referred to a psychiatrist, counsellors and physiotherapists.  She was also seen by a neurosurgeon in Victoria.

190    Dr Hossain noted it had been some time since the incidents first occurred but when he sees the plaintiff, he clearly sees a distressed patient who suffers from the symptoms mentioned earlier.

191    Dr Hossain most recently reported in July 2014 that he had been seeing the plaintiff mostly because of her work-related injury.  She had been traumatised both mentally and physically as a result of the incidents that happened while she was working full time.

192    Dr Hossain reported the plaintiff had managed to train herself to adjust with pains and discomfort that had resulted from those injuries; therefore, she visited him only if she was very unwell.

193    Dr Hossain concluded that over the years, the plaintiff had probably lost the skills that are required to work as a nurse and he did not think she would be able to return to work as a full-time nurse as before.

194    The plaintiff was first seen at the Physiotherapy Centre Ivanhoe on 4 November 2005, having been seen at another practice.  Whilst there, the plaintiff was treated by Ms Dundee who provided a number of reports.

195    The plaintiff described the injury to her right shoulder in the first incident.  Initial therapy thereafter consisted of ultrasound, cervicothoracic mobilisation, right glenohumeral mobilisation, soft tissue massage and development of a home exercise program.

196    The plaintiff exacerbated her injury at work over several incidents in late November 2005.  At that time, she also felt she was not feeling supported by her workplace. 

197    The plaintiff was doing light duties to avoid further exacerbation and reported in April 2006 she was under pressure to return to normal duties and found that quite stressful.

198    Throughout 2006, the plaintiff complained of ongoing stress and bullying in her workplace.  This resulted in altered poor posture and movement and in addition to right shoulder pain, the plaintiff began to also experience neck pain, headaches, right wrist and right swelling, and in December 2006, complained of left shoulder pain.

199    The plaintiff’s WorkCover consultant was informed of the effect of the work environment on her recovery.  However, the plaintiff reported pressure was being put on her to return to full duties.

200    It was suggested during treatment sessions the plaintiff take time off work to enable her to recover but she did not.  She attempted to self manage her condition and attended physiotherapy for treatment when she needed assistance to settle pain and improve function. 

201    In early 2007, the workplace removed the extra nurse which had allowed the plaintiff to continue on light duties.

202    The plaintiff returned to physiotherapy after the second incident when she complained of headaches, dizziness, cervical and bilateral upper limb pain and upper limb parasthesia.  

203    On the last examination in April 2008, the plaintiff had regained full cervical range of movement and reported decreased headaches.  She had started Pilates.  She had moved interstate and did not continue physiotherapy.

204    Mr Roger Sutherland, orthopaedic surgeon, first saw the plaintiff on referral from Dr Rose in December 2005.

205    At that stage, noting an ultrasound showed a rotator cuff tear, Mr Sutherland thought the plaintiff would probably benefit from a steroid injection but was reluctant to have it.  He did not think surgery was indicated and noted at that stage, the plaintiff was going to continue with her rest and analgesics. 

206    On review in late December 2005, the plaintiff had worsening shoulder pain at night and had now agreed to a steroid injection, which he gave her.

207    On review in January 2006, the plaintiff had some improvement, although overhead activities and night discomfort continued.  She was having physiotherapy and wanted to resume work in a week, which he thought should be possible.

208    On review in March 2006, the plaintiff’s shoulder pain had settled during the holidays when she was resting.  However, there was a recurrence, though not as bad, on her return to work, of which she attributed part thereof to stress.  Mr Sutherland repeated the steroid injection.

209    On review in July 2006, the plaintiff reported over the last two months some recurrence of right shoulder pain.  She had a painful arc of abduction but a full range.  Mr Sutherland repeated the subacromial injection.

210    Mr Sutherland noted when he saw the plaintiff again on 12 December 2006, her pain was minimal although with sudden movement she would get discomfort.  A new ultrasound indicated a full thickness supraspinatus tear. 

211    Mr Sutherland discussed further treatment with the plaintiff including operative repair of her rotator cuff but she did not want any intervention at that time.

212    The plaintiff was seen on 4 July 2007, when she was continuing to have pain in her right upper arm, particularly when at work and when doing heavy lifting.  She told Mr Sutherland she was working three days a week and found she had increasing discomfort as the shifts progressed.  She also had limitation of normal household activities.  The plaintiff told Mr Sutherland she had also developed some aching in her left shoulder as well.

213    Noting the plaintiff had a full thickness tear in the rotator cuff, Mr Sutherland thought it likely ongoing discomfort could occur and if conservative measures were not controlling the situation, then he thought the plaintiff would be a candidate for surgical repair of the rotator cuff.

214    The plaintiff was referred to Dr Mullen, neurologist, by Dr Rose in January 2008 for a work-related neck injury and consequent headaches following the second incident.

215    Since that incident, the plaintiff had ongoing headaches and neck pain.  The major discomfort now was stiffness and pain in the right trapezius and neck area with consequent difficulty in using the right arm as well as difficulty turning the head. 

216    On examination, there was marked pain and tenderness over the right paraspinal and trapezius with normal rotation but quite limited lateral flexion, particularly to the left.

217    Dr Mullen then thought the plaintiff had a fairly typical progression of a musculoskeletal neck injury and the majority of the difficulty was first of all a hyperextension injury of the right lateral neck muscles and trapezius.  He suggested a short course of anti inflammatories and physiotherapy. 

218    Dr Mullen noted a return to all forms of nursing would be very difficult for someone in the plaintiff’s position, whether desk work or patient care.  He gave her a certificate until the end of January 2008 but thought it quite possible she would not be returning to work after that.

219    On review in December 2011, Dr Mullen thought he was pretty clearly dealing with cervicogenic headache, migraine, intermixed with some mood symptoms. 

220    Dr Mullen thought the first step was to get the plaintiff on some regular anti-inflammatories and attempt to get her medication in order.  In his view, probably the most important thing was that the plaintiff needed treatment of her neck and to see a physiotherapist because that was the only thing that made a really big difference in the past.

221    On that re-examination, the plaintiff advised that her neck and shoulder remained stiff and sore and she had developed chronic migraines and she also ended up on long-term opiate painkillers which clearly made migraines worse.  Her problems then were frequent migraines, chronic daily headaches, neck pain stiffness and analgesic overuse.

222    Dr Mullen noted the plaintiff was clearly distressed and depressed by these problems and he suspected she probably has a Major Depressive Disorder.

223    On examination, there was a great deal of neck stiffness but in fact no neurological deficits were evident and there was no evidence of an impinged nerve in the neck. 

224    Dr Mullen thought although the triggering injury was the blow, the pattern of sustained pain from what was a relatively minor injury clearly had multifactorial input, including psychological input.  Complicating matters further was the migraine and analgesic rebound.

225    Dr Mullen thought the disability the plaintiff currently suffered was very substantial but hopefully with treatment would significantly improve but that would be at least some months.

226    Whilst he could not give an unequivocal statement the neck injury caused these problems, certainly the combination of that injury and what Dr Mullen believed to be mood symptoms focussed on work-related stress, formed a large part of the disability the plaintiff currently suffered.

227    On re-examination in May 2012, Dr Mullen thought the plaintiff was a bit better with the treatment suggested and he made further suggestions as to the medication regime.

228    On review in August 2012, the plaintiff’s condition had not changed.  Dr Mullen noted recovery was a still hoped for outcome but that was always far from certain in such a case.

229    On review on 28 August 2012, Dr Mullen noted, unfortunately, the plaintiff had some side effects from the Endep.  The physiotherapy had made some difference but she was neither on anti-inflammatories or Endep and frankly was basically untreated.

230    Ms Elke Brauer, psychologist, most recently wrote to Dr Hossain in April 2011, having first seen the plaintiff in May 2010. 

231    On initial attendances, the plaintiff told of the onset of her problem following a fall at work.  There was also stress of her senior work colleague “creeping up on her” and accusations of not working to return to work specifications.

232    Ms Brauer diagnosed depression, stress, anger, anxiety and worry.

233    Treatment included panic and anxiety education plus related breathing and relaxation exercises, including mindfulness, cognitive therapy and encouraging the plaintiff to write down her thoughts and feelings, distraction techniques, sleep, hygiene, pleasant things to do and refocussing attention and nurturing herself.

234    As of April 2011, the plaintiff had opted not to return to further appointments, and Ms Brauer encouraged her to return if she needed further help.

235    Ms Sonia Vallabh, physiotherapist, reported to the plaintiff’s solicitors in February 2012.  She had been treating the plaintiff since 3 January 2012 at the completion of the EPC Program, after which the plaintiff did not have sufficient funds to continue treatment.

236    Ms Vallabh believed the plaintiff would find it difficult to resume full nursing duties.  She noted the injuries had not only affected the plaintiff physically but there seemed to be a psychological component attached to it as well.

237    Ms Vallabh thought suitable duties for the plaintiff would need to be examined by a rehabilitation provider as they would be able to test and determine the type of work that would be appropriate for her without aggravating her condition.

Medico-legal examiners

238    Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in November 2011.

239    The plaintiff told him of injury to the right shoulder in the first incident.  She was pushed to return to full duties and there were a number of further minor incidents at work.  Then there was the second incident which aggravated her right shoulder.

240    The plaintiff complained to Mr Doig her right shoulder felt stiff and it tired very quickly and made her wake if she lay on it.  She felt it was getting slowly and steadily worse.

241    On examination, there was minor wasting of the supraspinatus, not all that marked.  There was some restricted movement and a marked decrease in supraspinatus power.  The plaintiff said her left shoulder was also irritable because she was using it too much.

242    Mr Doig noted investigations showed a full thickness tear of the supraspinatus tendon.

243    Mr Doig thought the mechanism of injury was consistent with the plaintiff’s present complaints and diagnosed a full thickness tear of the supraspinatus tendon attributable to the plaintiff’s work.

244    Mr Doig noted the plaintiff, having returned to work, stopped worked because she was having some ongoing problems at work not all specifically related to her shoulder.

245    Mr Doig thought the plaintiff’s prognosis was somewhat guarded and considered it certainly possible the injury would progress and may deteriorate in the future.  He suspected he would probably have recommended surgery if he had seen her initially.

246    Mr Doig thought the plaintiff would have a lot of troubles with lifting, pushing, pulling and carrying.  He noted she stated she had difficulty with a number of activities of daily living.  She told him she could not work but that was not specifically and only due to her shoulder but also because of some other problems.  She had difficulties with housework and found it difficult to drive a manual car; all problems he felt were consistent with her injury. 

247    Dr Horsley, occupational physician, examined the plaintiff in September 2012.

248    The plaintiff told her of the two incidents and a progressive worsening of symptoms and going off work in August 2009 as she was no longer able to cope.  

249    The plaintiff told Dr Horsley in the second incident the shelves hit her on the right side of the head, causing a glancing blow across the side of her right shoulder and arm.  She suffered a laceration of the right temple and immediately excruciating pain in the head, right shoulder and neck.

250    Dr Horsley thought the plaintiff had ongoing right shoulder disability with a persistent reduction in range of movement.  She had persistent headache and neck pain and a pre-existing back injury which impacted on her functional tolerance.

251    Dr Horsley noted the plaintiff presented as a straight forward woman.

252    On examination, right shoulder movements were reduced.  The supraspinatus test was positive on the right.  The teres minor scapularis test was negative.  The AC joint test was equivocal.

253    Dr Horsley thought the plaintiff sustained a significant injury to the right shoulder girdle in the first incident.  She sustained a full thickness tear of the supraspinatus tendon which was managed conservatively and she had an ongoing disability.

254    Dr Horsley noted the plaintiff had a further event in 2007 sustaining an injury to the skull and cervical spine with ongoing and persisting symptoms and disability. 

255    Dr Horsley thought the plaintiff had developed a Major Depressive Disorder which had been managed by her treating doctor and her treating psychologist, with oversighting by a psychiatrist.  She had an ongoing disability in that regard. 

256    Given the time since the injury and the ongoing nature of the symptoms, Dr Horsley believed they were likely to persist.  She noted the plaintiff developed increasing levels of anxiety and was not able to continue at work and there had been issues around harassment post injury which resulted in the plaintiff ceasing work in 2009.

257    Dr Horsley believed the events as described in the clinical presentation were consistent and work had been a significant contributing factor.

258    In terms of the plaintiff’s right shoulder and cervical spine, Dr Horsley thought the following physical restrictions should apply:  avoidance of repetitive over reaching; repetitive pushing and pulling; repetitive above shoulder activities; lifting items greater than 10 to 20 kilograms, except occasionally, and lifting items up to 5 to 8 kilograms on a repetitive basis.  She thought good manual handling techniques, even when lifting light items, was required.

259    Dr Horsley noted the plaintiff’s functional tolerance was reduced because of the back injury; namely, a sitting tolerance of about half-an-hour; a dynamic standing tolerance of about an hour; a static standing tolerance of about 15 minutes; and a driving tolerance of one to two hours before a rest.

260    Dr Horsley thought the plaintiff does have some capacity to do the non-manual components of Division 1 nursing, including the reporting, supervision and medication side of things.  However, the hands-on component of patient care is now permanently beyond her capacity. 

261    Dr Horsley noted the injury in the second incident was more significant and resulted in cessation of work, and relied on her psychiatric colleagues for an opinion in that regard.  She believed that the plaintiff’s current treatment with intermittent sessions of supportive counselling from a psychologist was appropriate.

262    Dr Horsley concluded the plaintiff had reached maximal medical stabilisation and at sixty-four, believed she had come to the end of her working life and there were no suitable employment options taking into account the overall level of disability and presentation. 

263    On re-examination in July 2014, the plaintiff reported ongoing right shoulder disability and neck pain, although there had been some improvement in the range of movement since the last review.

264    The plaintiff described chronic neck pain radiating into the right shoulder and into the right upper arm present most days.  She also reported a reduction in functional tolerance.

265    The plaintiff again presented in a straightforward manner.  Right shoulder movement was normal, save for extension; however, there was discomfort in both abduction and forward flexion.

266    On the right, the supraspinatus test was positive, the test for teres minor‑subscapularus was negative and the AC joint test was equivocal on the right.  However, the Apley’s scratch test was normal superiorly and posteriorly.

267    Dr Horsley confirmed her earlier diagnosis and prognosis and views as to the plaintiff’s non manual nursing capacity.  She thought the plaintiff had reached maximum medical stabilisation and that at sixty-six, had come to the end of her working life.

268    Dr Horsley noted Professor Ryan had suggested the plaintiff may be able to find an appropriate role in pastoral care visiting the sick or elderly.  Dr Horsley agreed that she would be suited to this type of role.  However, that was likely that would be voluntary or on a part-time basis and she believed the plaintiff would have difficulty undertaking such a role on a paid basis. 

Compensation documents

269    The employer part of the Claim for Compensation signed on 3 October 2005 set out the plaintiff was working 33 hours at $28.43 an hour and her pre-injury average weekly earnings at the time of injury, excluding overtime and allowances, was $1243.89.  Gross weekly wages in the year prior were $1,036; two years prior $1,243. 

270    In her stress claim signed 5 September 2010, the plaintiff set out she was working from 9.30 to 7.15 Saturday, Sunday, and Monday at $31.99 an hour, with usual pre-tax weekly earnings of $911 and a weekly shift allowance of $112.

271    The Employer’s Claim Form for the second incident set out the plaintiff was working 28.5 hours a week at $30.76 an hour, with average weekly earnings of $989 and regular shift allowance of $96.

The Defendant’s medico‑legal evidence

272    Mr Polke, orthopaedic surgeon, examined the plaintiff in 2005 and 2006.  The plaintiff was examined in 2010 by Mr Schutz, consultant surgeon, and Dr Dharwadkar, psychiatrist.

273    Whilst reports from these examiners were tendered, they were not relied on in submissions by counsel for the defendant, thus I do not propose to consider them further.

274    Professor Michael Ryan, orthopaedic surgeon, first examined the plaintiff in January 2013, and he saw her again in 2014. 

275    On the first examination, the plaintiff told him of both incidents, the second involving her right shoulder, neck and head.

276    The plaintiff complained of a sore neck, ringing in her head and tenderness over the right frontal bone.  She described pain in her right arm in the medial and lateral aspects of the right upper arm and her bra hurt her right shoulder.  She now complained of pain in the left shoulder because she had been overusing it. 

277    There was 60 per cent of normal range of cervical movement (normal for a person of her age); there were no neurological signs in the upper limbs, and reflexes were present and symmetrical.  There was some limitation in abduction and flexion.

278    Professor Ryan noted the plaintiff’s symptoms in the neck, ringing in the head and tenderness in her left arm was not objectively verifiable.  From an objective point of view, he thought she appeared to have no greater limitation of her neck than many of her age and she had no cervical spasm or asymmetry. 

279    The plaintiff’s ranges of shoulder movement were symmetrical if one assumed the left shoulder was normal for her age.  He noted she depended largely on the Bob Beck device to clean her blood and she had had great faith in it and her symptoms had improved considerably.  He noted infrequent use of Di‑Gesic.   

280    Professor Ryan confirmed the ultrasound showed a tear.

281    Professor Ryan thought the cause of neck pain was probably cervical spondylosis at C5-6 and C6-7.  He considered the plaintiff’s shoulder pain may be related to a tear of the right rotator cuff, although she had no physical signs now that would allow him to make a diagnosis from a purely clinical point of view.  He noted the plaintiff was managing well with minimal analgesic requirements and a new physical device which appeared to be harmless.

282    In his view, it was certainly possible but not probable that there was a full thickness tear in the first incident.  The strongest argument was that the fact the plaintiff had developed pain, but she could have lesions without pain.

283    From a subjective point of view, Professor Ryan thought the plaintiff was limited by her neck range of movement and difficulties in lifting heavy items at home.  It was equally possible that persistence of limitations or at least a component of them was attributable to degenerative change in aging. 

284    Professor Ryan noted the plaintiff’s chief complaint was that she was unable to re-arrange her furniture, an activity she enjoyed particularly.  She could not use a broom and she had difficulty hanging up clothes.  She had to use a trolley at the supermarket.  She complained of pain in the left shoulder as she has to use that arm more.

285    Professor Ryan did not think the plaintiff had a capacity for pre-injury work but thought possibly she could work as a nurse educator and in that role would supervise and instruct others without having to bend and lift.  It was possible she could have worked in such a role from the time of her injury or whatever time she chose to retire. 

286    There was no objective evidence of exaggeration or inconsistency or pain behaviour.  On the other hand, the plaintiff enjoyed marked relief from the Bob Beck device.

287    On re-examination in 2014, there was again reduction in abduction and flexion and similar spinal movements.  The plaintiff continued to have pain and limitation of her right shoulder and suffered from headaches and left shoulder symptoms and had neck pain.

288    Professor Ryan diagnosed a right and, to a lesser extent, left painful arc syndrome of her shoulders.  He thought the plaintiff suffered from cervical spondylosis and had neck and what was probably cervico head pain.  He thought she was managing satisfactorily using ice packs and relatively mild analgesic but it would be reasonable for her to have to two physiotherapy treatments a year.

289    Professor Ryan thought, possibly, the plaintiff may find an appropriate role in pastoral care visiting the sick or elderly, noting her nursing experience would seem ideally suited for that role.  Again, he confirmed there was no evidence of exaggeration or inconsistency.

Overview

290     I accept that the plaintiff suffered a compensable injury to her right shoulder during the period of employment and in particular, in the two incidents.

291    The consensus of medical opinion is that the plaintiff’s right shoulder condition involves a tear of the supraspinatus and the subsequent development of bursitis.

292     I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses and also benefits pursuant to s98C.  This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[79] such 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.”

[79][2006] VSCA 171

293    The defendant accepted there had been a tear demonstrated on ultrasound.  It did not have any problem with the implication of the right shoulder and trapezius in the second incident and increasing shoulder complaints after that, but it was submitted there was recovery.[80] 

[80]T143

294    Thus, counsel for the plaintiff submitted that the defendant’s case conceded persistence of right shoulder problems beyond the second incident.[81]

[81]T163

295    The submission on the defendant’s behalf essentially was that any problems from the first incident had resolved at the time of the second incident.  Further, any problems following the second incident had now resolved.

296    In terms of recovery from the first incident, it was submitted there was short-term treatment with improvement with the last injection in July 2006, improvement noted by Mr Sutherland in September 2006 with minimal pain and a finding of a full range of shoulder movement by the physiotherapist in October 2006.

297    Whilst the plaintiff complained to Mr Sutherland in July 2007 of pain and discomfort when doing heavy lifting, Dr Rose, just prior to the second incident, thought the plaintiff was approaching a level of recovery that promised an end result with no significant impairment.[82]

[82]T141

298    The plaintiff was working her ordinary hours with the defendant in 2007 and her certification was relaxed in September/October of that year, with the plaintiff being allowed to do handling and turn patients with her elbows locked in.  It was submitted that indicated a significant improvement from the earlier period.[83]

[83]T141

299    Further, it was submitted that consistent with this improvement, following the second incident, Dr Rose noted in her certificates that she was combining the head injury with the original injury and what was left now was the impact of the head injury on the neck and shoulder injury.[84]

[84]T142

300    It was submitted there was a gradual improvement in the plaintiff’s capacity as indicated by the certificates.[85] Later certificates in 2009 do not mention anything about not handling patients and in June 2009, Dr Rose noted the plaintiff was generally overall a lot better.

[85]T146

301    It was submitted that the plaintiff’s explanation as to the decrease in medication in June 2009 should not be accepted in the face of her reporting improvement.[86]

[86]T146

302    Counsel for the plaintiff conceded it would be fair to say improvement had peaked before the second incident but submitted thereafter, there was a significant aggravation.[87]

[87]T164

303    Later certificates showed a “huge step backwards” with no handling of patients, no prolonged driving, keyboard work, maximum 15 hours continuous desk work, rest breaks hourly for five or ten minutes and half hourly changes of tasks.  It was submitted that these certificates were ignored every time.

304    It was submitted on the whole of the evidence, there was no basis for a finding of recovery and the defendant’s submission in that regard was erroneous.[88]

[88]T165

305    I accept there were recurrent shoulder strains from October 2005 until the plaintiff ceased employment in 2009.[89]  A number of these incidents were confirmed by Dr Rose.  I accept that as a result of these regular aggravations, the plaintiff continues to suffer from an unoperated tear of the tendon with referred pain into her neck, as confirmed by Professor Ryan.[90]

[89]T161

[90]T169

306    There was no argument on the defendant’s behalf that any ongoing shoulder symptoms lack a substantial organic basis.[91]  It was submitted however that the plaintiff’s neck and head symptoms were psychologically based and I could not be satisfied there was a substantial organic basis for the neck stiffness, headaches and buzzing in the head and simply not enough evidence to conclude that was part of the ongoing symptomology due to an organic injury.[92]

[91]Meadows v Lichmore Pty Ltd [2013] VSCA 201

[92]T139

307    In my view, there is some merit in this submission based on Dr Mullen’s view.  When considering the right shoulder impairment, I have ignored the buzzing and headaches which he had difficulty linking with the plaintiff’s shoulder injury.

308    There is no suggestion of any previous right shoulder pain of any relevance prior to the period of employment.

Credit

309    As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[93]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[93](2010) 31 VR 1 at paragraph [12]

310    There was no attack on the plaintiff’s credit and as I indicated to counsel during the hearing, I accepted the plaintiff as a witness of truth.  She was a credible witness who did not overstate the extent of her pain and restrictions.  She did not exaggerate or prevaricate at all and a lot of what she said derived considerable support from Dr Rose.[94] 

[94]T163

311    There was no surveillance film or any suggestion by any medical examiner of any embellishment or exaggeration on examination. 

312    It was submitted by counsel for the plaintiff that based on a history from a witness of credit, the defendant’s case of physical recovery and no ongoing impairment is fundamentally flawed and should not be accepted on the evidence.[95]

[95]T164

Pain

313    In Haden Engineering Pty Ltd v McKinnon,[96] Maxwell P noted that the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what a plaintiff says about their pain both in court and to doctors.

[96](supra) per Maxwell P at paragraph [11]

314    I accept the plaintiff continues to suffer significant ongoing right shoulder pain of varying intensity, worsened by activity.

315    There was no real challenge to the plaintiff’s evidence as to her level of pain and restrictions.[97] 

[97]T166

316    I accept that due to her ongoing right shoulder pain, the plaintiff is significantly restricted in activities involving repeated or heavy bending and lifting compared to her pre-injury level of activity.  She also has difficulty with prolonged posture.

317    The plaintiff’s right shoulder is persistently sore and causes interference with many daily activities in and around the house. 

318    The plaintiff regularly takes over-the-counter medication with Panadol nightly and a Di-Gesic when there is very sharp pain.  She also takes part of an Oxazepam tablet at night to help her get to sleep because of her pain.  More significant medication intake is not possible because of numerous side effects the plaintiff has experienced.  In any event, she keeps medication to a minimum as she considers a greater intake would have a lessening effect.

319    The plaintiff has undertaken all treatment suggested to her.  She has been told repeatedly that she is not an appropriate candidate for surgery due to her age and diabetic condition.[98]

[98]T175

320    Physiotherapy early on was helpful but funding was ceased.  Later in 2012, the plaintiff had six visits funded by Medicare.  Dr Mullen noted it was tragic that funding was not available as physiotherapy was the thing most likely to have made a significant difference.[99] Dr Rose also considered that physiotherapy was beneficial for the plaintiff.[100]

[99]T171

[100]T171

321    These modalities have provided little improvement.  However, the plaintiff noted that there had been some increase in her energy level for the first time early this year.

322     As no further treatment has been suggested to the plaintiff for her shoulder complaint, her lack of complaint to Dr Hossain in this regard is understandable.  I accept that he was aware of her shoulder condition but could do nothing further for her and dealt primarily with her other health issues, in particular, her psychological state.  There was not, in these circumstances, recovery, as counsel for the defendant submitted.

Work

323     I accept from an early age the plaintiff was able to do very physical work involved in her role as a Division 1 Nurse.  Since the first incident, she has been unable to return to her lucrative agency work and unrestricted nursing duties and since August 2009, has not been able to return to any nursing whatsoever.

324    I accept the plaintiff is a dedicated professional who would not shrink from hard work.  Nursing was her life and her love and but for these injuries, she would have worked beyond sixty-five to seventy.

325     Whilst the plaintiff had ongoing disputes with the DON since her injury, I accept the plaintiff’s physical condition was the main reason for her resignation.  Ongoing staff shortages led to an increased load on the plaintiff, which in turn aggravated her shoulder condition.  Certainly this situation was stressful for the plaintiff but that stress related to the increased physical strain placed on her by the work situation.[101]

[101]T138

326    Dr Rose thought the work injuries were fully responsible for the plaintiff’s loss of capacity to perform her pre-injury duties compounded by being forced to do tasks which she was supposed to avoid after return to work due to staff shortages.[102]  

[102]T184

327    I accept that the plaintiff’s workload also increased after the changes to the National Health system which came into force in April 2009 as the plaintiff described.

328    Whilst the plaintiff mentioned to most examiners that stress played a role in her decision to resign, she did make a claim in relation to her 2005 and 2007 shoulder injuries which are still before the Magistrates’ Court.[103]

[103]T178

329    I do not accept that the plaintiff resigned for psychological reasons, as counsel for the defendant submitted.[104] As was accepted, the plaintiff was well motivated before and had a good work history.[105]  Had it not been for her shoulder condition, in my view, she would have continued both her normal nursing duties with the defendant and also resumed agency work.

[104]T140

[105]T149

330     Taking into account all the evidence, I accept that the premature truncation of the plaintiff’s employment was mainly as a result of her shoulder condition – having been “running on empty” for the last six months, the plaintiff simply had had enough.[106]

[106]T186

331     Further, I accept the plaintiff did not continue agency work because it was too much for her with her right shoulder difficulties.  She would not have wound down her work activities had it not been for the shoulder injury.  She did not seek work from another agency because she had not been given a clearance to work and she knew, in the absence of such a clearance, she would not be given agency work

332    I accept the plaintiff did not renew her nursing certificate in 2012 and she chose to go on the pension, as she could not return to nursing duties because of her shoulder condition.  Whilst the plaintiff may have the capacity to do some teaching as she conceded, it was not a voluntary retirement, as counsel for the defendant submitted.[107]

[107]T158

333    I accept the submission by counsel for the plaintiff that by 2009, the plaintiff he was a “beaten woman” and that the only choice open to her was resignation.  Her incapacity was permanent when she ceased work with the defendant.  It has taken her many years to regain some energy but she still has shoulder pain and restriction.[108]

[108]T179

334    The consensus of medical opinion is that the plaintiff does not have a capacity for her pre-injury nursing work.

335     In my view, the plaintiff has satisfied the narrative test in relation to loss of earning capacity, having to give up her profession due to her ongoing right shoulder pain and resultant restrictions.

336     I accept that as the plaintiff’s pain and restriction has continued for some time, without improvement, her impairment is permanent.

Loss of earning capacity

337Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also

(b)after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

338    The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings. 

339    The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

340    “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

341    It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

342    The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – Barwon Spinners Pty Ltd & Ors v Podolak.[109]

[109](supra) at paragraph [70]

343    I am therefore required to determine a “without injury” earnings figure. 

344    Counsel for the plaintiff relied on the plaintiff’s 2004 earnings of $84,179 in her work with the defendant and the Agency.[110]

[110]T180

345    Counsel for the defendant put the issue in a different way.  In the financial year ending 30 June 2009, the plaintiff earned $60,784 working with the defendant.  That figure was 72 per cent of $84,179, her highest earnings in the preceding years.  On that analysis, the plaintiff had not established the requisite loss.[111]

[111]T160

346    In my view, the “without injury” earnings figure which most fairly reflects the plaintiff’s earning capacity is the total of her Agency earnings and earnings with the defendant in 2003-2004 of $84,179.

347    Sixty per cent of that figure is $50,507 or $971 per week.

348    Counsel for the defendant submitted that Dr Hossain, in 2010, thought the plaintiff would go back to full-time normal duties in a good working environment.  Further, in 2012, Centrelink thought the plaintiff could do some counselling, but she did not take this course because of an unrelated condition of diarrhoea and buzzing in her head.[112]

[112]T158

349    Both Dr Horsley and Professor Ryan suggested the plaintiff could do less physical types of nursing.[113]  Professor Ryan thought, possibly, she could work as a nurse educator and in that role would supervise and instruct others without having to bend and lift.  It was possible she could have worked in such a role from the time of her injury or whatever time she chose to retire. 

[113]T159

350    In response, counsel for the plaintiff relied on Dr Rose, who thought the plaintiff had no capacity for suitable employment.  Although she was no longer treating the plaintiff, she considered that the plaintiff would not be able to work.[114]

[114]T183

351    Dr Mullen thought the plaintiff would have difficulty returning to nursing either in an active or a desk job.

352    Recently, whilst Dr Hossain noted the plaintiff had managed to train herself to adjust to the pains and discomfort, he thought she had lost the physical skills that are required as a nurse.[115]

[115]T185

353    Whilst Dr Horsley agreed with Professor Ryan that the plaintiff may be able to find an appropriate role in pastoral care visiting the sick or elderly, she thought that was likely that would be voluntary or on a part-time basis and she believed the plaintiff would have difficulty undertaking such a role on a paid basis.[116]

[116]T188

354    In my view, any work the plaintiff would be able to carry out would be very limited and require some retraining.  In those circumstances, her earnings would be negligible and she would still suffer the requisite loss, being unable to earn in excess of $971 per week.

355    Therefore, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of forty per cent.

356    I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

357    In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

358    Whilst the plaintiff could train nurses now and since leaving the defendant’s employ, given her age and the need for retraining, even if she obtained the relevant qualifications, I do not accept she would earn in excess of $971 per week.

359 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[117] and Advanced Wire & Cable Pty Ltd v Abdulle.[118]

[117][2009] VSC 454 at paragraph [147]

[118][2009] VSCA 170

360    Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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