Clare v Wesfarmers Ltd
[2015] VCC 395
•31 March 2015 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
COMMON LAW DIVISION
SERIOUS INJURY LIST
Case No. CI-14-03721
| JENNIFER CLARE | Plaintiff |
| v | |
| EUREKA OPERATIONS t/a “Coles Express” | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 16, 17, 18, 19 & 25 February 2015 | |
DATE OF JUDGMENT: | 31 March 2015 (Melbourne) | |
CASE MAY BE CITED AS: | Clare v Wesfarmers Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 395 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation – serious injury application
Catchwords: injury to left non-dominant shoulder; pain and suffering and loss of earning capacity; credit and reliability of plaintiff.
Legislation Cited: Accident Compensation Act 1985, s 134AB
Cases Cited:TAC v Zepic [2013] VSCA 232, TAC v Campbell [2015] VSCA 7, Haden Engineering Pty Ltd v Mackinnon [2010] VSC 69; O’Donnell v Reichard [1975] VR 916; Ansett Australia Ltd v Taylor [2006] VSCA 171 at [40]
Judgment: For Plaintiff; leave for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull with Mr N Dubrow | Slater & Gordon |
| For the Defendant | Mr P Hayes | Wisewoulds |
HER HONOUR:
1 Ms Jennifer Clare applies to the Court for leave to bring a claim for damages in respect of injury suffered in the course of her employment with the defendant on or about 1 November 2009, or on and following that date. To obtain leave, she must satisfy the court that she has suffered a serious injury within the definitions and requirements of s134AB of the Accident Compensation Act 1985 (“the Act”).
2 The application is for leave to claim damages for both pain and suffering and pecuniary losses (loss of earnings and earning capacity).
3 Notwithstanding a more extensive list filed as Particulars of Injuries, the case was confined during the hearing to reliance on an injury to the plaintiff’s left shoulder and arm, in reliance on sub-paragraph (a) of the definition of “serious injury”[1], namely serious permanent impairment of the function of her left shoulder and arm. An alternative basis for her claim was that her symptoms in her left shoulder and arm emanate from an injury to her neck, but that was based on one medical opinion[2], and was not seriously pursued.
[1]S 134AB(37)
[2]Mr David Chehata, Exhibit F, but that diagnosis was raised as a possibility and never confirmed by him, nor by a neurosurgeon.
4 To establish a “serious injury” under sub-paragraph (a) of the definition, the plaintiff must satisfy the court on the balance of probabilities that the ongoing consequences of the injury to her, for the foreseeable future[3], when compared with the range of other possible impairments of body function, can fairly be described as “more than significant or marked” and “at least very considerable”[4].
[3]Barwon Spinners v Podolak (2005) 14 VR 622, [111]
[4]s134AB(38)(b) and (c); Humphries v Poljak [1992] 2 VR 129
5 Further, to obtain leave to claim damages in respect of loss of earnings and earning capacity for this injury, the plaintiff must satisfy the court that she has a permanent loss of earning capacity of at least 40 per cent[5], measured in the manner set out in the statutory formula[6], and taking into account her capacity for suitable employment after reasonable attempts to participate in rehabilitation or retraining[7].
[5]S134AB(38)(e)(i)
[6]s134AB(38)(f)
[7]s134AB(38)(g)
6 The plaintiff’s case is that in the course of her employment on 1 November 2009, stacking heavy items onto shelves, she suffered injury to her left shoulder and arm, the consequences of which have been at least very considerable. These consequences are alleged to include not only pain and restricted movement in her left shoulder and arm, and outer fingers of the left hand, but also pain and restricted movement in her neck, headaches, and pain and some restriction of movement in her right shoulder and arm as a result of overuse through favouring the left arm.
7 In relation to loss of earnings and earning capacity, it is her case that she has been totally incapacitated for any suitable work since about April 2011, and is likely to remain so for the foreseeable future. Alternatively, if the court does not accept that she is totally incapacitated for suitable work, it is argued that she has suffered permanent loss of at least 40% of her pre-injury earning capacity.
8 Although the defendant does not admit that the plaintiff suffered injury to her left arm and shoulder in an incident restocking shelves on 1 November 2009, it concedes that it accepted her claim and made WorkCover payments in respect of it[8], and I take into account that such an admission should ordinarily be regarded as very significant, albeit not conclusive evidence that the injury occurred[9].
[8]T304,lines 11-19
[9]Ansett Australia Ltd v Taylor [2006] VSCA 171 at [40]
9 The defendant’s case is that whatever injury she suffered on that date has not resulted in consequences that have been permanent, or serious enough to meet the test of fairly able to be described as “very considerable”. It argues that any ongoing symptoms are either deliberately exaggerated or result from psychological cause and are not a result of anatomical injury to her shoulder.
10 The primary thrust of the defendant’s case is a challenge to the plaintiff’s credit. It argues that she has been untruthful and unreliable in her accounts to the court, and to doctors, of her symptoms and their impact on her. It accuses her of being motivated to lie or exaggerate by the prospect of personal gain though this proceeding. It argues that her evidence was so unreliable that the court should be sceptical of everything she said, should not rely on medical opinions based on what she has told doctors, and as her account of the limits on her activities was not corroborated by an affidavit from anyone who sees and knows her, the court should find that she has not discharged her onus to prove her case.
11 In relation to loss of earning capacity, the defendant also argues that as she has not tried to obtain or investigate alternative work, she does not satisfy the definition of serious injury as to loss of earnings or earning capacity.
The evidence
12 The evidence consisted of the documents set out in the attached schedule, and the oral evidence of the plaintiff, who was the only witness required for cross-examination.
13 As in most cases of this nature, the credibility and reliability of the plaintiff’s own evidence is important because not only the court but doctors, whose opinions are in evidence, are reliant on the plaintiff’s own account of the history of the occurrence, timing, extent and duration of symptoms and their impact on the plaintiff’s life.
14 Given the manner in which this case was run by the defendant, I shall turn later to “sift through”[10] multiple attacks and challenges to the plaintiff’s credit, but shall first deal with some of the more generalised argument about her credit.
[10]TAC v Campbell [2015] VSCA 7 at para [89]
Credit and reliability of plaintiff’s own evidence
15 In his closing address the defendant’s counsel originally submitted that the plaintiff’s demeanour when giving evidence was “needlessly guarded”, “quite extraordinary”, and she seemed “to be very well practiced in the manner” and “very alive to the nature of cross-examination” to the extent sometimes seen in experienced witnesses such as police officers.[11] He later withdrew the allegation that she was experienced as a witness, or evasive, and described her manner as “defensive”[12].
[11]T291, L7-17
[12]T 292, l 17 -19
16 I do not regard the plaintiff’s demeanour during her oral evidence as extraordinary, well-practiced or evasive. She was mainly brief in her answers during cross-examination, but I did not take that to be evasive, and her brevity was frequently highlighted by the length and complexity of questions. She answered a bit more fulsomely in re-examination. I accept that at times her manner was quite defensive. However, I do not find any of this unusual for a plaintiff during cross-examination, especially in cases of this type where she has not had the opportunity to explain herself in oral evidence-in-chief[13], and also because she was subjected to cross-examination for more than a day and a half. Her manner appeared to me to be quite intense as she appeared to focus on following questions, and she also seemed to tire and become frustrated at times. In lay terms she appeared quite anxious. Far from appearing to be an experienced or seasoned witness, my impression was that the whole experience was alien and a great strain for her. I did not find her manner of answering questions or her demeanour in the witness box as at all undermining of the credibility of her evidence.
[13]As serious injury applications are commenced by Originating Motion, the plaintiff’s evidence-in-chief is in affidavit form, and so after brief formalities of accepting the content of the Affidavits, the plaintiff is exposed almost immediately to cross- examination.
17 As to the proposition that she was motivated to lie or exaggerate because she stood to gain from this case, that is always a possibility in any civil case when a party gives evidence. It was not my impression that that was any more pronounced in this case than in any other. Moreover, as this application is only a threshold to potential recovery of damages in a future proceeding, it is removed from the prospect of any immediate monetary gain.
18 The defendant argued that I should be cautious of accepting the plaintiff’s account of her symptoms and their impact on her life because her evidence on this was “uncorroborated”, which was said to be unusual. Specifically, it was argued that friends, former co-workers, or her brother could be expected to have provided affidavits confirming their observation of her incapacity.
19 I accept her evidence that although she felt that she got on well with some co-workers whilst working for the defendant, she had not kept in touch with them since last working there in 2011. I also accept that although she still has some friends, she has seen much less of them over the last couple of years. She lives alone, and a relatively isolated lifestyle. I am satisfied that she has given reasonable explanation for not providing affidavits from any former co-workers, and that no friends see her often enough or in circumstances likely to be a useful account of observed activities or incapacity.
20 The defence then focused on her having said that she has a brother living at Wendouree, whom she drives to visit quite regularly. It was put to her that she had not asked him to come that day to give evidence about her symptoms, and she agreed and appeared surprised at the implication that she could or should have asked him to come. She was not asked directly for an explanation for not providing an affidavit from her brother.
21 It is common ground that both before and since this injury, the plaintiff has lived alone; that is, since her husband’s death more than 14 years prior to her injury. There is no evidence that her brother ever visits her home or sees her anywhere other than in his home. The evidence is that she drives to visit him in Wendouree. Any account by her brother of complaints of pain or other symptoms would have been no more than his repetition of what she had told him, so would have suffered the same criticism as the defendant levelled against doctors’ reports here. It also follows that her brother would be unlikely to have seen her if her symptoms were bad enough to prevent her from driving to visit him. Whilst he could be expected to be able to describe whether she has appeared to him to be in pain or other discomfort, it could be only on that limited issue that it would be open to draw an adverse inference from the plaintiff’s failure to file an affidavit from him.[14] Such inference could only be to the effect that what he might have said would not have advanced her case, and while I cannot speculate on what he might have said, at best for the defendant it could only have been limited to his not saying that he has noticed her to be more restricted in movement than prior to her injury, or in apparent pain over the last four years when she has visited him. Her brother could not have added to evidence about what she does or how she acts inside her house, so could not have overcome the defendant’s complaint that it could not video-tape her inside her house where she was believed to spend much of her time.
[14]Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
22 Moreover, in this case there was evidence other than from the plaintiff herself that she guards or protects her left shoulder and arm when walking, which she says she does to stop the arm swinging and thereby causing pain. The video-surveillance tendered by the Defendant[15], although tendered to show that on some occasions she used her left arm and hand, mainly showed her not doing so. In most of it she was seen to hold her left shoulder and arm in a protective and restricted manner, generally holding her upper arm quite close to her body with the elbow bent and the forearm supported in front of her, sometimes supported by the right hand.
[15]Exhibit 2
23 To the extent that any corroboration is required of the plaintiff’s own evidence about her restricted use and movement of her left shoulder and arm, I view the video-surveillance as providing that corroboration, at least as to how she protects the arm when she goes out of her home.
24 I also note that there were findings by doctors of muscle wasting of her left shoulder, crepitus, and muscle spasm in her neck, all being objective signs of lack of use or of underlying anatomical injury or abnormality.
25 In any event, in my view the repeated reference by the defendant’s counsel to the case of TAC v Zepic[16], overlooked an important difference between that case and this. In Zepic’s case there were specific findings by the Judge of inconsistency between the plaintiff’s version of his symptoms in his affidavits and his version of their extent given to doctors and in court. In the present case, and subject to some specific matters to which I shall refer, I do not find that there was any significant divergence or inconsistency between her evidence about her shoulder injury and its consequences in her affidavits and what she said in court.
[16][2013] VSCA 232
26 Overall, I found the plaintiff’s evidence credible in the sense that she appeared to be trying to tell the truth to the best of her recollection, and generally reliable. Overall I found her version of events and of her symptoms given on affidavit consistent with what she told doctors who treated or examined her for medico-legal purposes, and with the evidence she gave in court.
Findings as to the Plaintiff’s background and personal circumstances
27 Mrs Clare is now aged 56 years.
28 She left school in Ballarat after Year 10, also leaving her family home at about that stage, and worked for approximately the next three years as a sales assistant in a retail store. She then married and moved to Melbourne where she worked at different jobs, including as an aide in a blood bank, as a cleaner at a school, and as a laboratory assistant. She and her husband then started a band and performed together until the mid-1990s, when her husband passed away. After a period of grieving, she worked at a café as a waitress and kitchen hand for about two years.
29 In 1999 she commenced working as a service assistant for Brummar, which became a Coles Express outlet, the defendant being the present owner of that business. In about 2001 she became a manager for Coles Express, and worked from then onwards at the Creswick site.
30 So far as her previous health was concerned, she underwent knee surgery in 1998, from which she recovered well and was not impeded in her work. She says that although she experienced grief following the death of her husband, she had never been diagnosed with or experienced clinical depression or anxiety, and she was not challenged about that. She had no previous left shoulder or arm problems. She had previously suffered from what she describes as “sinus headaches”, being in the upper nasal region of her face.
31 As at the time of her injury, she was living alone in a modest two bedroom house which she had bought for herself in Creswick. She still lives there. It has a garden which she used to enjoy tending. I accept her evidence that she had bought it knowing that it required renovation, but expecting to maintain her job until retirement, which would have enabled her over that time to have that work done, such as the moving inside of what remains an outside toilet. I also accept her evidence that she had hoped to do some of the work herself, in particular the inside repainting, of which she had already completed one room before her injury.
32 In the course of her work for the defendant in her role as a manager, she was busy with her tasks including not only supervising others but regularly having to perform general store duties herself, including stocking and restocking shelves.
33 Although the plaintiff was living a relatively quiet life, she used to enjoy walking, especially the almost six kilometre walk around Lake Wendouree, went to a gym about twice a week, and enjoyed gardening, and cooking. Attending her employment with the defendant was clearly a significant part of her life, activity, and interaction with other people, and important to her self-esteem.
34 Ms Clare is right hand dominant.
The injury
35 During October 2009, the Creswick Coles Express store underwent renovation, which included creation of a new storeroom and additional display shelving in the store. She says, and it is not disputed, that at the end of that renovation an order was placed by head office for an extra-large delivery of drinks for the new shelving to be fully stocked. She was told that the store needed to be in pristine condition, and all stock put away by the following morning - that is, the morning after the stock was delivered - as a regional manager was to visit the store. She says that she could not obtain assistance from the one other person working on the shift with her as he had a physical disability, rendering him unable to undertake extra heavy lifting beyond his own duties. The defendant disputes that that man could not assist her, but this is not an issue I need to decide as there is no dispute that she did re-stock the shelves herself that night.
36 The plaintiff says that she put the stock away on her own, including placing heavy bulk packs of drinks onto the new shelving, and some needed to be at or above shoulder height. She says that this was on 1 November 2009 and, as she was putting a pack of water onto the top shelf, she felt a click in her wrist and pain travelled through her left arm into the shoulder. She says that she felt considerable pain, but continued to work and completed the restocking of the shelves.
37 She did not report her injury to her employer nor seek medical treatment for almost a year following that date. Her reasons for this delay are disputed.
38 She states that she that she hoped that it would just get better on its own, that she wanted to keep working, that at that time she had no regular general practitioner and when she had last sought medical treatment she had been prescribed medication which was so strong that it caused her adverse reaction so she did not take it again, and as time passed she struggled to accept that the pain was not going away and that she might have a bigger problem than she had hoped. She says that she tried over the following months to limit use of her left arm and shoulder, and to avoid heavy lifting at work as much as possible, asking other staff members to assist her more, but that the pain continued and worsened over time with use, until she eventually sought treatment and reported it. She first consulted a doctor on 29 October 2010, and reported the injury to her employer, and completed a WorkCover claim form on 1 November 2010.
39 The defendant disputes that other staff members were aware of her injury, although no contrary evidence was produced. I make no finding for the purposes of this application about that, not having heard from any of the other staff working with or near her at the time.
40 I am satisfied that she did not have a regular general practitioner at the time, and had not had for some years. She first attended the clinic where she has been treated ever since, on 29 October 2010, and that visit was in relation to the subject injury.
Medical treatment
41 On 29 October 2010, the plaintiff attended a medical clinic where she had not been a patient previously, and saw Dr William Crouch. He noted complaint of diffuse pain in the left arm, particularly left shoulder, with restriction of movement to approximately 25% of normal in all directions. She told him she suffered an injury to her left shoulder at work approximately 12 months earlier, that the pain had varied from time to time, but had increased approximately two months earlier as a result of lifting some heavy boxes in the court of her work duties. Dr Crouch ordered an ultrasound of the left shoulder, which was reported as “not quite normal”. As a result of seeing the ultrasound report, he prescribed Mobic tablets and referred her for physiotherapy.
42 She was certified unfit to work for a couple of weeks, during which time Panadeine Forte was prescribed, but with some improvement in her pain and as described by the physiotherapist slow improvement in movement, she returned to work on what should have been restricted duties. Unfortunately in December her left shoulder was aggravated by an incident at work when she was trying to secure the gas bullet, and she required a further week off work. She continued with treatment and her shoulder pain improved although did not fully resolve. She was back at work in February, at a different site, on restricted duties, but became very stressed and anxious after an incident in which she perceived herself to have been bullied by a stand-in manager rebuking her for a cob-web over a doorway. Further return to work attempts were made in March or April, but did not succeed, and she last attended work at Coles Express in April 2011.
43 At the defendant’s urging she attended a psychologist for four or five sessions in mid-2011. She found that quite helpful in giving her a chance to express her frustrations and concerns about her situation, and taught her some helpful strategies to help her cope with her pain.
44 As a result of a medical examination for the defendant by Mr Paul Kierce, an MRI was ordered on her left shoulder, and supplied to her general practitioners. Her treatment was taken over at her GP clinic from about April 2011 by Dr James Choong who still treats her.
45 Dr Choong referred her for orthopaedic opinion to Mr David Mitchell in early May 2011. Mr Mitchell arranged two injections into the shoulder. In the first he injected the sub-acromial space, which if it had brought dramatic relief would have been a good indicator for surgery, but she did not improve with that injection. A further injection was done into her acromioclavicular (“AC”) joint under ultrasound, which also did not help, and made her temporarily worse. Although Mr Mitchell found on further examination in September 2011 that she had impingement, pain and some crepitus, he could not clarify the diagnosis and in those circumstances did not recommend surgery.
46 She was referred by Dr Choong in February 2012 for assessment for a pain management program. She subsequently undertook the 10 week “Pain Wise” program at St John of God Hospital, between 23 July and 8 October 2012, attending three half days in the first half decreasing to 2 days per week in the second half. The program emphasised self-management and improving physical function and quality of life. Reports[17] from the various therapists, and overall supervising doctor, Dr Khan, confirm that she participated willingly and actively in the program. Ms Clare acknowledges that the program taught her to recognise how her body was reacting, and assisted her by providing techniques to deal with her pain, however it did not reduce the actual pain she continued to experience.
[17]Exhibit E
47 With her continued symptoms, Dr Choong referred her to another orthopaedic surgeon, Mr Chehuta, in April 2013. He was of the view that her shoulder and arm symptoms might emanate from her cervical spine, and recommended a neurosurgeon’s opinion, but that did not eventuate. I note that Dr Khan had also recommended investigation for possible cervical spine pathology that might be causing referred radicular pain. An MRI he ordered of the cervical spine[18] showed degenerative change at C5-6 disc but the effect was on the right rather than left C5-6 neural exit foramen.
[18]Exhibit K, 9/3/12
48 Over the years she has been prescribed pain-killers, and anti-inflammatory medication for her shoulder and arm, from Mobic, Panadeine forte and Tramal, to Norspan patches, Endep, Oxycontin, and also Cymbalta and Axit for her psychological condition. She has complained of adverse reactions to various medications, which have been changed or ceased. For considerable periods since November 2010, although not as long as defence counsel put to her, she has taken only over-the counter pain medication, specifically Panadol and Panadol Osteo. Even that was ceased for some weeks in late 2012 and early 2013 after a doctor flagged possible damage to her liver, but blood tests cleared that concern. The most recent of her clinical notes tendered indicate re-introduction of stronger medications, but that she could not tolerate Norspan patches tried again in late March 2014, and they were replaced with a trial of Tramal.
49 In her affidavit of January 2015 she said she was taking two to three Panadol and two to three Panadol Osteo a day. In oral evidence she said that about two weeks earlier those had been replaced with Codeine Forte tablets and Diclofenac, an anti-inflammatory. She was challenged because the timing pointed to an inconsistency, but ultimately whether paracetamol or codeine I accept that she still feels the need for and uses some medication to relieve pain. She also uses hot packs and does some exercises at home to ease her pain.
Medical opinion
50 Dr Crouch[19] originally diagnosed a sub-acromial bursitis, with a 6mm partial thickness tear of the mid-supraspinatus tendon, noted that the condition had been long-term (as at April 2011) and it was likely that there would be a permanent impairment but hopefully minimal, and as at April 2011 he hoped that she would soon be able to return to work in a half-time capacity with no labour-intensive duties for her left arm.
[19]Exhibit C
51 Her ongoing GP, Dr Choong, considers the primary diagnosis to be Adhesive Capsulitis of the left shoulder with partial tear of the supraspinatus muscle and sub-acromial bursitis resulting from the injury of 1 November 2009. He considers she has secondary Depression and Anxiety as a result of the chronic pain and incapacity. Given the extended duration of chronic daily pain and restricted left shoulder movement, his prognosis was guarded in reports of March 2013 and February 2014, with no expectation of improvement, and most recently (January 2015) her prognosis was expressed as poor, with no current capacity to work, likelihood of her injuries being permanent, and that her left shoulder is likely to deteriorate in the future with possible arthritis and frozen shoulder developing[20].
[20]Exhibit D
52 Mr Paul Kierce, consultant orthopaedic surgeon, examined the plaintiff at the request of the defendant[21]. He was the first specialist to see her, in March 2011, while attempts to return to work were continuing. On clinical examination he not only found subjective tenderness, but noted wasting of her left shoulder girdle muscles, winging of the left scapular as she put her arms out in front of her, and crepitus on left shoulder movements. On examination of her cervical spine, she was tender and had muscle spasm in the left mid-cervical and left suprascapular region. She also had decreased rotation of her cervical spine by about 50 per cent of the normal range, although flexion extension and lateral flexion movements were satisfactory. Noting her clinical presentation and the ultrasound of 29 October 2010 reported as not quite normal with changes of chronic low grade tendinosis of the distal subscapularis and distal supraspinatus, his diagnosis was of adhesive capsulitis of the left shoulder, which he considered was consistent with the stated cause, but required further investigation by MRI which he ordered.
[21]Exhibit M
53 On receipt of that MRI scan, Mr Kierce adjusted his diagnosis. His opinion was that the injury was an aggravation of osteoarthritis of the left acromioclavicular joint, with a partial tear of the rotator cuff likely to be the primary injury, and probable adhesive capsulitis. He recommended treatment with steroid injections, with the possibility of surgery after that.
54 Mr Kierce reviewed Ms Clare in July 2011, when he found her very emotional and thought that she was clearly depressed. He recommended that she obtain the opinion of an independent psychiatrist. From the physical point of view, he noted that she was by then under treatment from Mr David Mitchell, who was organising injection therapy, which he felt was the best treatment for her at that stage. At that point she was definitely not fit to work, both from the physical and psychological points of view, and he advised urgent referral to an independent psychiatrist.
55 On that occasion there was no wasting of left shoulder girdle muscles but she was tender anteriorly over the left bicipital grove, and also over the A/C joint but, interestingly, she was just as tender over the acromion itself. She had marked palpation of all upper limb muscles and some restriction on range of movement. In her cervical spine she had generalised tenderness centrally with some left sided muscle spasm in the mid-cervical and suprascapular regions. However, she had a good range of cervical spine movements.
56 He noted on neurological examination of both arms that she showed global numbness of most of the left upper limb not following any anatomical pattern and noted that the performance of all of the left upper limb reflexes caused significant pain which was very unusual.
57 In relation to the MRI results, he considered that they showed very significant degenerative arthritis of the left A/C joint, the swelling and osteophytes on the left A/C joint causing some pressure on the supraspinatus tendon. He felt that there was a possible partial tear of the left supraspinatus, subacromial bursitis, and she may have capsulitis from these views. His diagnosis was that she had injured her left shoulder girdle in the course of her work, aggravating pre-existing osteoarthritis of the left A/C joint and suffering a rotator cuff injury.
58 He noted that day that she appeared very stressed and tearful, and had been unhappy in the way in which her supervisory staff had treated her, as she felt that she had been bullied. Her range of movement in the left shoulder girdle was slightly better than on the first occasion. She appeared to be barely managing daily activities at home. He considered that she would need further injections than the one she had had from Mr Mitchell, recommending she have one injection a month for the next three or four months and should be encouraged to move her left shoulder as much as possible within the limits of pain.
59 At the end of July 2011, he considered that she had no work capacity. She had attempted to return to work but had been unsuccessful. He was not able to say how long she needed to stay off work. The prognosis was that she should largely recover from the left shoulder injury but she would never be fit for work which involved lifting more than five kilograms with her left, using her left arm above shoulder level, and she would need to be in a more sedentary-type occupation than she was pre-injury.
60 While she had definite physical injuries sustained in the course of her work, it was his impression that the attitude of her supervisors had upset her greatly so that she was now very depressed, and he advised that she needed the opinion of a psychiatrist to advise regarding her psychological state.
61 Mr Ash Chehata, in May 2013, felt the cause of her shoulder pain was not clear, given the lack of positive response to injections. He wondered whether the real cause for the shoulder pain was the cervical spine, although he acknowledged that the partial thickness tears shown on MRI were possibly responsible for the ongoing pain. He was to await a neurosurgeon’s opinion, but none was obtained.
62 Mr Russell Miller, orthopaedic surgeon specialising inter alia in shoulder surgery, provided a medico legal assessment for her solicitors in September 2014[22]. On physical examination of her left shoulder he found deltoid muscle wasting, some restricted movement, and marked irritability during shoulder movement. His diagnosis was that she had developed an injury to her left shoulder, having features of sub-acromial impingement syndrome, probable rotator cuff pathology, and possible degenerative disease in the AC joint. She had ongoing features of capsulitis and frozen shoulder. Given her poor response to conservative measures he thought it unlikely that she will be assisted by surgery, but also said it was a possibility. He believed the prognosis for her left shoulder was fair/poor. He felt she probably had a predisposition to develop problems with her shoulder but on the information available to him believed it likely that her work in general and the work injury in November 2009 precipitated symptoms in her left shoulder. He said she would require ongoing conservative treatment with an emphasis on pain management and rehabilitation.
[22]Exhibit H
63 Mr Miller set out in detail which I shall not repeat the likely symptoms and their effects on the plaintiff’s lifestyle and general movements, and capacity for work tasks, including some reduction in her capacity for fine and manipulative work with the left and right arms, some reduction in her manual dexterity, and difficulty with prolonged and repetitive use of her left and right shoulders. His opinion was that she will not be fit to return to pre-injury employment duties on any significant full- time or part time basis.
64 Mr Murray Stapleton examined her for the defendant in January 2014. His opinion was that she had a frozen shoulder with evidence of subacromial bursitis and a degenerate tear in the supra-spinatus muscle, being part of the rotator cuff mechanism on her left shoulder. He did not expect her to improve after such a long passage of time since the injury.
65 Dr Helen Sutcliffe examined the plaintiff in November 2014, for her solicitors. Her view was that the plaintiff had sustained onset of rotator cuff tear, and probably subacromial bursitis in the course of her employment, and also subsequent onset of adhesive capsulitis. She also believed from the nature of the pain history and her examination that Ms Clare had also sustained onset of neuropathic pain with increasing distribution of pain to the upper arm, lower arm, fingers and also the left side of the neck and head. She believed that as a result of these conditions the plaintiff had no capacity for employment in her pre-injury occupation or any other employment at that time or into the foreseeable future. She considered the pain disabling and the plaintiff had no capacity for any manual handling, lifting or elevation of the left arm.
66 Mr Richard McArthur, orthopaedic surgeon, provided medico-legal opinion at the request of the defendant[23]. In February 2013, his opinion was that she had suffered frozen shoulder, otherwise known as adhesive capsulitis, and that stacking bottled water onto a shelf had precipitated the onset of her symptoms. He noted that while generally resolution of such condition occurs over a period of 18 months, a certain proportion of patients never regain full movement in the shoulder and are left with chronic pain of variable intensity, and Ms Clare may well be in that category. He found she had a reasonable range of external rotation in the left shoulder which indicated that the shoulder was slowly settling, but that the work-related injury had not resolved and the complete resolution may not occur. Mr McArthur recommended that further treatment be attempted, by way of oral corticosteroids, hydrodilation with intra-articular steroid and arthroscopic surgery with manipulation under general anaesthetic. His opinion was that she did not have a capacity for work at that time. The major barrier preventing her from returning to work was the persistent pain and stiffness in the left shoulder. If the frozen shoulder resolved and she regained an essentially normal pain-free function in the left shoulder, then return to work was feasible, but a timeframe could not be provided.
[23]Exhibit 7
67 In a subsequent report of July 2013, Mr McArthur noted that the plaintiff’s GP had certified her fit to resume work at reduced hours on modified duties consisting of two hours a day, three days a week, with the limitation on lifting with her left hand more than 2kg or using her left shoulder above shoulder height. Mr McArthur deferred to the GP’s as being in the best position to advise upon her capacity and he would defer to the GP.
68 There is nothing in evidence to indicate the source of the information that the plaintiff’s GP certified her fit for such a return to work, even with such restrictions. Neither his report of March 2013 or of February 2014 reflect that view. In any event, by February 2014 Dr Choong reported to her solicitors that she was unable to carry out any of her pre-injury duties and in his view she would be unable to perform any suitable employment, and he would expect this incapacity not to improve in the foreseeable future.
69 The defendant primarily relies on a medico-legal report it obtained from occupational physician, Dr Gary Davison, dated 1 July 2014. The history taken by Dr Davison is, in the main, in accord with the plaintiff’s history and the history of her injury. However, he was not provided with the reports of Mr Kierce, Dr Khan, Mr Stapleton, nor any of the psychiatric reports apparently provided from time-to-time to other consultants retained by the defendant, including those tendered in this case.
70 Dr Davison described Mrs Clare as a pleasant and co-operative historian. On examination, he found her range of active movement of both shoulders identical, which he concluded suggested abnormal illness behaviour. He found some limitation in degrees of movement, but resisted rotator cuff movements did not appear to cause any substantial discomfort. He found that there was generalised weakness throughout her upper limbs, and widespread myofascial tenderness bilaterally on neck and shoulder girdles, more marked on the left side where there were specific tender points which corresponded mostly to the trapezius muscles bilaterally. The range of active movement of the cervical spine was globally restricted to about two-thirds of expected normal range, and she reported increased discomfort on the contralateral side when undertaking lateral flexion and rotation movements.
71 He found no evidence of a specific neurological deficit in the upper limbs but she reported increased shoulder pain when he elicited the deep tendon reflexes in either arm. He thought that the radiological investigations were of uncertain clinical significance given the lack of response to the various treatments, and said the non-specific changes in the left shoulder on MRI scanning, in his opinion, could not explain the plaintiff’s current presentation.
72 Having noted what he concluded was the presence of abnormal illness behaviour due to identical ranges of movement in both shoulders, Dr Davison said that in light of a significant pathology evident in the various investigations undertaken, caused him to suspect that there has been pain sensitisation.
73 Asked to provide a hypothetical estimate of the effect on her social and occupational functioning had she not had an adverse psychological reaction, he suspected that there had been a substantial effect on her social and occupational functioning as a result of an adverse psychological reaction. Having not been provided with any of the psychiatric reports, it is not clear to what adverse psychological reaction he was referring.
74 Based on her presentation that day, 1 July 2014, his view was that overall she did not have a work capacity. In respect only of her left shoulder condition, he considered that she would have a capacity for sedentary right handed duties only, with use of the left upper limb only as tolerated. He did not have a vocational assessment provided and could not comment on any specific jobs or occupational duties. He noted that she had not worked for three years and has widespread pain and difficulty with essential activities of daily living and household chores. He considered that retraining at that point in time was unlikely to result in a resumption of paid employment.
75 In contrast to Dr Davison’s opinion that abnormal illness reaction was responsible for much of the impact on the plaintiff’s social and occupational functioning, the psychiatric opinion tendered does not support that. Dr Stephen Stern, assessed her twice, in 2011 and 2013. His opinion was to the effect that Ms Clare was suffering from an adjustment disorder with depressed mood, secondary to her work injury to her left arm, and that her psychiatric prognosis largely depended on improvement of her physical symptoms. From a psychiatric aspect alone she was fit for all work including her pre-injury duties, although separation from the managers involved in the perceived incident of victimisation was preferable. By his second examination, in December 2013 he found that the depressive symptoms had improved and her adjustment disorder related to continuing pain from her left shoulder injury of November 2009.
76 Dr Michael Epstein, psychiatrist, examined her for the plaintiff’s solicitors in December 2014[24]. He too found her affect mildly depressed during the interview. He diagnosed a very mild chronic Adjustment Disorder with depressed mood, as a consequence of ongoing pain, discomfort and disability as a result of the alleged workplace injury to her left upper limb. His opinion was that there is no psychiatric impediment to her returning to work or interfering with her quality of life. She would probably feel better within herself if she could return to work within her physical limitations. Her prognosis with regard to her mental state very much depends on what happens with regard to her physical symptoms.
[24]Exhibit 6
77 Further, the opinion of Mr Miller was that she had an adverse mental state reaction with development of anxiety and depression and probable development of superimposed chronic pain syndrome, which would complicate the assessment and management of her condition. However, his opinion was that her condition is predominantly organic in nature.
78 Mr Kierce had detected a psychological component to her presentation, in July 2011, which he recommended receive psychiatric opinion for treatment, but there was a clinically apparent physical injury which she had suffered and which continued to cause her pain and restricted movement and required ongoing physical treatment.
79 I am satisfied that all medical opinion except that of Dr Davison is to the effect that the plaintiff suffered a physical injury to her right shoulder which has resulted in and is the primary cause of chronic symptoms. There is no rational basis to prefer the opinion of Dr Davison over all others, as to abnormal illness behaviour being responsible for her functioning problems, especially as he assessed her only once, with limited briefing material.
Video-surveillance
80 The defendant showed video-surveillance[25] totalling almost 53 minutes, taken on 5 separate days but some 30 minutes on one occasion as she sat playing a poker machine in a hotel. The defendant admitted having her under surveillance for a total of 32 hours. This was all clearly during 2014 and early 2015.
[25]Exhibit 2
81 In my view, the video surveillance showed that Ms Clare usually holds her left arm in a protective manner, as she did throughout the hearing in court. In particular she is shown on video surveillance, when walking, having her left upper arm held against her left side, left elbow bent and the forearm against her front, sometimes supported by her right hand. That is not to say that she never uses her left hand or arm. She has not said either in her affidavits or in court that she cannot use her left hand or arm at all, and she used it to steady documents in court and was shown on the video using it at times such as when buying a tattslotto ticket, and also in her garden.
82 She is shown opening the passenger side car door with her left arm in a slightly outstretched manner, on one occasion. She is shown carrying plastic shopping bags, no one of which looked heavy, and mainly carried in her right hand but transferred to her left hand or over her wrist or forearm, as she used her right to search for keys or open her car door. She had her handbag over her left forearm or wrist on one occasion as she walked.
83 She is also shown in her front garden de-fruiting a peach tree. This was argued by the defendant to be showing blatantly that she had full use of her left arm. I did not see it that way. She used her left hand to hold or brush away some branches that looked light to enable her to reach further into the tree with her right arm or to step further into it. She used much more of her right hand and arm than her left, and carried a bucket from place to place in her right hand. She either dropped or placed fruit into the bucket. However, she did raise her left arm at (or a little above) shoulder height on three occasions, which I could see, and on the last of those occasions the arm seemed outstretched at shoulder height.
84 The defendant filmed her at the fruit tree activity in total for some six minutes, last December. For two to three of those minutes I could not clearly discern her arm movements, due to the secretive nature of the filming causing poorer quality or movement and she was obscured from view for part of the time, as I told defence counsel when that occurred.
85 I reject the defendant’s argument that what she was doing in relation to the peach tree destroys her case. I saw it as showing a relatively short period of some activity in her garden, but nothing like the “heavy gardening” which it was suggested in cross-examination was shown. Indeed, in my view, that portion of surveillance showing her, as it did, after 8.40am in her dressing gown in her own front garden is consistent with her engaging in physical activity in her garden infrequently and not undertaken for any extended period. She says that she was unable to continue even though she would not regard this as heavy gardening. She did use and lift her shoulder more than she did in court, but not to an extent that she showed free and unrestricted use of it.
86 She was also shown sitting at and playing a poker machine for more than 25 minutes. During the whole of that time her left upper arm was by her side and the forearm and hand across and supported by her right leg crossed over the left. She did not use her left hand or arm at all while playing the machine, and at the end when an attendant came she used the left hand lowly and apparently just to support whatever was being held by the attendant for her to sign. Otherwise she seemed to me to have no interaction with any of the other people present although from time to time she turned her head as someone walked near her or through a doorway nearby. She did appear able to concentrate on the console of the machine and to use her right hand freely to operate it although not quickly or repetitively.
87 The plaintiff has never said that she cannot move or use her left shoulder and arm at all. When examined by doctors she has had varying degrees of restriction of movement but never total, and she has not claimed that she does not use her left arm at all. In my view the video-surveillance, although only a brief picture of her activities and movements, was overall more confirmatory of her protecting her right arm and shoulder and using mainly her right arm and did not undermine her own evidence about the extent of her activities and limitations.
Other attacks on the plaintiff’s credit
88 Throughout cross-examination and in the defendant’s closing address, the primary argument was that the court should place no reliance upon the plaintiff’s credit or reliability as a witness. She was attacked about a number of further matters to which I shall refer in more detail than many of them warrant, because of the intensity of the arguments put for the defendant.
89 She concedes that she did not report her injury for almost a year, and agreed that as manager she knew that the defendant’s procedures required any workplace injury to be reported as soon as possible. She denied the suggestion that the reason she did not report the injury or seek treatment for it sooner was because it was not causing her much pain or cause for concern. I accept her explanation for the delay that it was because she wanted to keep working, believed it would resolve and as time went on found it hard to accept that it might be more serious and cause her greater problems than she had hoped. Further, the delay in seeking treatment is consistent with her pain having increased over time to the point she could not tolerate it and sought treatment. The failure to report it in the meantime to her employer, as she knew was required procedure, is not really explained, and I do not overlook it, but overall it is not enough to significantly undermine the reliability of her evidence, especially as the defendant which was in the best position to check the details accepted her claim even though it was a year after the event she alleged.
90 The plaintiff swore in her second affidavit that although at times she has been prescribed painkillers by her doctors in respect of her left shoulder pain, she has not consistently taken them because she finds it difficult to tolerate strong painkillers. In cross-examination she said she had an allergic reaction to some prescribed pain killers, and Defence counsel put to her, and asserted to the court, that this was an exaggeration as there was nothing to indicate allergic reaction, and she conceded that she had not been sent to an allergy specialist in this regard.
91 If her explanation for ceasing to take the medication were in doubt, it is supported by her general practitioner’s reports indicating the changing of some prescribed medication due to her adverse reaction to what was initially prescribed, and the clinical notes contain consistent entries with this -
“24/10/2011 – unable to tolerate Endep – dry mouth, rash and sore throat, following which Cymbalta capsules were prescribed and two weeks later she was noted to be tolerating Cymbalta;
16/11/2012 – unable to tolerate the [Norspan] patches – nausea, itching, neck stiffness;
26/3/2014 – to try Norspan patches again; but on 29/4/2014 “unable to tolerate Norspan. Trial Tramal.’”
92 In my view, there was nothing whatsoever in this attack on her credibility. I do not regard as an exaggeration for a lay person to describe as an allergic reaction what they elsewhere call an adverse physical reaction or difficulty tolerating certain medication. The energy behind this argument was wasted on me.
93 The following are further specific matters on which she was alleged to have exaggerated the extent of her disability.
(i) She stated in her first affidavit that she had difficulty with shopping and now tries to shop more often and do smaller loads. When cross-examined about this, she said that she only carried shopping in her right and denied that she even transferred them to her left hand when using her right for something else. She was shown on film on 10 January 2015 (and December 2014) carrying a plastic shopping bag on each occasion in her right hand which she transferred, either into her left hand or over her left wrist, while using her right hand to open her car door or reach for her keys to open the door. Her denial of ever doing this was therefore shown to be an exaggeration, but in my view not of such significance as to undermine the general tenor of her evidence and its reliability.
(ii) She was asked about telling doctors that, although she drove her car she drove mainly with her right hand and did not use her left. In cross-examination, she seems to say that she never used her left hand to help steer, whereas after watching video-surveillance she agreed that on one occasion she could see her left hand, as well as her right, on the steering wheel. Again she had appeared to make a total denial whereas the evidence tended to show that she did use her left hand and arm at times, but sparingly.
(iii) In re-examination about the period of almost a year between suffering the injury and reporting it before seeking medical attention for it, she appeared to say that throughout that time there had been a burning sensation in her left arm and severe pain, whereas in her first affidavit she had said that following the injury she tried to avoid heavy lifting and asked other staff to help out, and whilst she did all that she could to limit the use of her left arm the pain continued to increase. She told doctors that the pain had increased over that time with ongoing use, telling her first GP that it was in the last two months that it had become worse, and another doctor that it was for the last six months. At the time it was my impression that she was exaggerating in re-examination when she said that the pain had been burning throughout the time, but as her counsel pointed out, read in context with other answers she had in fact still been saying that the pain worsened over time until it became severe.
iv) It was put that some of the time frames of when she told doctors examining her that she was or was not taking medications were apparently inconsistent. I am not convinced that there were many actually proven inconsistencies about this, and time estimates often result in innocent mistakes. Further, I believe that the plaintiff did cease medications a number of times, did cease taking even Panadol for a period while her liver function was tested, and tried further medications prescribed by her doctor but ceased some of them promptly if she felt she had an adverse reaction. She does not claim to have taken strong medications for prolonged periods, and concedes she stopped even Panadol altogether for a couple of months. However the evidence from her GP’s clinical notes, as well as her own evidence, shows that pain would increase at intervals to a level that her doctor considered warranted further prescribed medications, or at least resumption of Panadol and Panadol Osteo.
v) That although she claims in her affidavit and oral evidence to have had difficulty sleeping on an ongoing basis, there is no reference to complaints of sleep problems in the GP’s clinical notes from July 2012.
vi) That when she said her reason for not paying herself to engage a private tutor for computer training she was lying, because she could have saved the $10.65 she spends on weekly Tattslotto tickets, and what she said was usually $50 put into each visit to play Poker machines. She had said that she had never investigated the cost of a computer training course, and there was no other evidence of that, so when she agreed in cross-examination that she could have used the money she spent gambling on a computer course, there was actually no basis on which she could have known the cost of any such course. Her agreement to the proposition put was in my view more an indicator of her not prevaricating or trying to resist admissions against her interests than a sign of dishonesty.
94 I have taken each of these criticisms or allegations of unreliability into account. I do not find the plaintiff to be unquestionably reliable on everything she has said or every detail of complaint as to her symptoms and their consequences. However, I am satisfied that overall she has given reliable accounts to the best of her ability and recollection, I do not find that she has exaggerated to any significant degree, and I have generally accepted her account of her injury and its consequences except where it is noticeably inconsistent with other evidence or where I have otherwise stated.
Findings as to injury
95 I am satisfied that as a result of her work duties on or about 1 November 2009 the plaintiff suffered injury to her right arm and shoulder, being injury to her left rotator cuff including possible partial tear, aggravation of osteoarthritis of the left AC joint, and adhesive capsulitis or frozen shoulder. The lack of positive response to steroid injections into two areas of her shoulder led to reluctance to diagnose the cause of her ongoing symptoms by the surgeons who were asked for advice as to surgery, but does detract from them all considering that there was a real and anatomical basis causing those symptoms.
96 Notwithstanding that she did not report the incident or injury at the time, I take into account as persuasive evidence that the defendant accepted her claim for that injury albeit reported a year later. I also believe the plaintiff’s account that she had worked on hoping that the injury would resolve, and most reluctant to believe that it would not and that her ability to continue working at her job of 12 years on which she was solely financially reliant might be threatened. I am therefore satisfied on the balance of probabilities that her left shoulder condition was caused by a work incident on or about 1 November 2009 when she was lifting packs of plastic water bottles to restock shelves.
97 Although she suffered some psychological reaction to her injury and inability to get back to work, including a period of stress over how she perceived she was treated as she attempted to return to work, I am satisfied that her physical injury was not only the precipitating cause but has remained throughout the period since the primary ongoing cause of her symptoms and the limitations on her lifestyle and work capacity.
98 The defendant argues that the injury as shown on radiological scans and even as described by doctors is not of itself significant and should not be regarded as a serious injury. Even though precise diagnosis was difficult in the view of treating surgeons, they confirm as do all medical examiners except Dr Davison, that the radiology confirmed abnormalities consistent with her complaints of symptoms in her left shoulder. It is not the seriousness of the injury itself which is to be assessed under the test for a serious injury. It is the consequences to the individual plaintiff, assessed objectively by comparison with other possible cases of impairment, and whether they can fairly be described as more than significant or marked and at least very considerable.
Pain and suffering consequences
99 I am satisfied that she has suffered some pain constantly ever since she reported the injury, with pain levels varying, with exacerbations and also periods of relative improvement. She has learnt through a pain management program in 2012 to cope with pain, as well as to recognise circumstances likely to worsen her pain, such as feeling tension, or certain activities such as swinging her arm, and how to try to avoid or minimise such circumstances or activities.
100 Although strong medication has not been constantly taken, she has relied on paracetamol for most of the time in between stronger medications. Although other active or interventionist treatments have ceased, she had two injections into her shoulder, under Mr Mitchell’s treatment, and underwent therapies including physiotherapy and hydrotherapy. Surgery was considered but not recommended.
101 I am satisfied that the plaintiff continues to suffer stiffness in her left shoulder and at times sensory disturbance down her left arm and in her fingers. I am satisfied that she finds movement such as swinging of her left arm increases pain in her shoulder, so protects her left shoulder by holding the arm protectively when walking, and keeping it away from being bumped by others when in more crowded places. I accept that although she can sit and stand for considerable periods, she feels pain and a sensation of her left shoulder being weighted down if she does so for extended periods.
102 I also accept that as a result of favouring her left arm and shoulder, she developed pain in her right elbow and shoulder from overuse, superimposed on underlying degenerative change in that shoulder. In particular she was experiencing considerable pain carrying wood for her fire. After discussion with Dr Choong, she eventually installed central heating last winter and found that her right shoulder has improved considerably since she ceased to carry wood. I am satisfied that she would be vulnerable to aggravating her right shoulder if she undertook sustained heavy or repetitive tasks with her right arm.
103 She also complains of severe headaches, of a type much worse than the sinus headaches she had previously experienced. I believe that she suffers from these, but have not taken their impact into account because their causal relationship to her shoulder injury was not addressed sufficiently for me to form a view about their likely causal link with the subject injury.
104 I am satisfied that although she can perform all personal daily living tasks for herself, those requiring raising or active use of her left arm cause pain and so she tries to avoid them, from using the left hand to wash or comb her hair, to wearing looser clothing to make dressing easier and less painful for her shoulder.
105 I accept that she performs housework very much more slowly and in shorter bursts than she used to do. I believe her that she no longer engages in heavy gardening tasks, and gardening was an activity she used to enjoy, especially as she had bought a house on a quite sizeable block.
106 I accept her evidence that she used to regularly walk around Lake Wendouree and visit a gym, and has had to cease both of those types of exercise which she used to enjoy before her injury.
107 In considering her retained capacities, I find that she can still drive, such as the 15 minutes or so trip to visit her brother, or for shopping in Ballarat, but she shops for shorter periods and limits the amounts she needs to carry compared with how she acted before her injury.
108 I find that she lives a less sociable lifestyle and one quieter and more isolated than she was doing before her injury. She is not confined to her home, but does not interact with people as often. She is still able to visit places where others congregate. She confirmed visiting a regular lotto booth in her shopping centre, where she is known and apparently enjoying chatting with the booth attendant. She confirmed that she used to visit a hotel with Poker machines regularly, usually spending a $50 note until it ran out. She said she knew she was stupid to do that, and stopped it at the end of last year. She said she only did it to get out of home and not think of other things, and my impression watching her on video surveillance was that she was in fact still very isolated, talking only with the attendant who came around at the end for her to sign an account, and otherwise not speaking with anyone else.
109 I am satisfied that she could not perform such home maintenance or renovation tasks as painting as she could before the injury. It would be unsafe for her to attempt to carry a paint tin and brush or roller up a ladder with one arm as restricted as I find it to be.
110 Taking all of these matters into account, I am satisfied that the impact on the plaintiff’s life of the effects of her left shoulder injury can fairly be described as more than significant or marked and at least very considerable.
Capacity for work
111 Ms Clare has no language or literacy impediments to being able to undergo basic retraining, but she also has no tertiary qualifications and no experience in office work or work not requiring reasonable physical capacity including both arms. She had achieved a position as store manager with the defendant, but notwithstanding that she had been employed by it for about 12 years, and it knew of her capacities, it could find her no suitable alternative work having regard to the medical restrictions placed on her as a result of her injury. That was the expressed reason for its termination of her employment in July 2013[26].
[26]Exhibit B
112 Since that time, no doctor has considered her to be physically fit to return to either her pre-injury duties, or any alternative work.
113 During cross-examination she was asked about telling Ms Mutimer of IPAR in early February this year that she had an interest in undertaking a computer course but that she would prefer to wait until her court case was over. This was after telling Ms Mutimer that she had concerns about her ability to attend classes consistently at present, and had considered a private tutor which would offer more flexibility. Her case was in the February circuit, and I accept that she was stressed by the forthcoming court hearing and could not cope with thinking or planning ahead until it was over. I reject the defendant’s argument that this showed she was motivated to manipulate the evidence to win her case.
114 In any event, I am satisfied on the balance of probabilities that in her current condition, as confirmed by her general practitioner, and by all recent medical examiners including Dr Davison, she is not currently fit to perform work tasks requiring sustained or repetitive use of her left arm. While keyboards can be operated one-handed, I doubt that any standard computer training course is geared to someone learning computer use who has very restricted use of her left hand and arm, even if a non-dominant arm. I am satisfied that she is not fit to undertake computer training at present, unless it were especially adapted to her left-sided physical limitations.
115 Similarly, even though vocational assessors and Dr Davison may have encouraged the plaintiff to think about what occupations she might be able to do in the future, she seems to have mainly told them, and also maintained in court, that this was subject to her doctor confirming she was fit to engage in such activities. Neither Dr Choong nor any other treating doctor has done so for at least the last 18 months.
116 The defendant relies on a vocational assessment report from Ms Chloe Mutimer, a psychologist, of IPAR. This report was dated 4 February 2015. For such an up-do-date recent report, it is conspicuous by there having been no provision to Ms Mutimer of any of the treating doctors’ reports - that is, general practitioners, Drs Crouch and in particular Dr Choong, Dr Khan, Mr Mitchell or Mr Chehata, nor was there provision to Ms Mutimer of the defendant’s reports obtained from Mr Kierce or Mr Stapleton.
117 Indeed, the medical information listed by Ms Mutimer had not been tendered or flagged as likely to be during the current hearing, and it was not until this was pointed out that the defendant then tendered reports of Mr Richard McArthur, one of which (9/7/13) had been quoted by Ms Mutimer. She herself pointed out that it was more than a year old and had been included as it outlined a past diagnosis. In the context of what Mr Mc Arthur said in his first two reports, as outlined above, what she quoted from Mr McArthur was out of context. Moreover, in quoting his of the opinion deferring to Dr Choong considering her fit for a part-time return to work in mid-2013, the total context of Dr Choong’s evidence as before me is lost. Not only do I not have any indication that Dr Choong supported a specific return to work, his reports of 2014 and 2015 unambiguously indicate that for the last 15 months or more he has considered her totally unfit for work and likely to remain so.
118 In my view the absence of the greater portion of medical opinion including the more up-to-date reports from the plaintiff’s general practitioner, Dr Choong, is a very considerable shortfall in the reliability of opinions expressed in the IPAR report. To the extent that it is based on medical opinion that, from an orthopaedic point of view, she was fit to work, it was out of date (as the reporter realised). I also note the disclaimer that IPAR is unable to comment on capacity for work and it notes that the medical reports provided to it at the time of the assessment comment on her capacity for work and should be reviewed in response to that specific question. In my view it is doubtful taken in proper context, that the opinion of either Dr Choong or Mr McArthur was that she had capacity for suitable work without significant recover after further treatment.
119 Even if she were to recover more use of her left shoulder, the restrictions on the type of work in which she could engage would, in my view, be much more limited than those proposed by IPAR.
120 In relation to the work proposed by IPAR, the final conclusion lists six job types which are said to “have been identified as being potentially suitable for Ms Clare”. It is clear from descriptions of those that some are subject to retraining, such as more extensive computer training. Further, in my view, the very description of certain of the jobs precludes them from being suitable for her both now and for the foreseeable future. Specifically, the physical demands for an admissions (ward) clerk (of which I note it was said there were no full-time, part-time or casual positions advertised in the Ballarat and central highlands region in the preceding 30 days, and for which Mr McArthur specifically said she was not suited), includes that repetitive arm, hand and finger movements are constant for data-entry and word processing tasks. Similar requirements are stated in relation to receptionist, medical receptionist, administration assistant, call centre operator (repetitive arm, hand and finger movements being constant for computer-related tasks), and for receptionists and medical receptionists – holding the phone and also use of office handheld objects such as pens, calculators and staplers, as well as telephones, would be occasional to frequent, and require bilateral hand and arm use.
121 In light of the medical evidence in relation to the limitations on use of Ms Clare’s left shoulder and arm, and noting that even Dr Davison confirmed that suitable work for her would need to have minimal left arm movement required, it is my view that any office role is likely to require more bilateral hand and arm movement than Mrs Clare can manage in her current physical state or for the foreseeable future.
122 Moreover, I accept her evidence that as she protected her left arm after it was injured, and used her right arm more, even beyond its more dominant role, she had developed pain in her right shoulder and arm. Several doctors accept that symptoms in her right shoulder and arm have been a consequence of protecting the left. Any attempt to work almost entirely with her right arm would in my view be likely to increase symptoms in her right shoulder and arm which she acknowledges have improved since she installed heating in her home to overcome the need to carry firewood. Pain in that limb only occurs now when she overuses it intermittently, but any attempt at work protecting the left side is more likely than not to exacerbate the right which would render her less likely to be capable of sustaining such use of her right hand. arm and shoulder.
123 This is not a finding I make lightly, having viewed the video surveillance film of the plaintiff. It showed her on one occasion sitting at a poker machine for more than 25 minutes, not using her left arm at all but resting it against her body with her hand over her thigh, and using her right arm freely and repeatedly to press buttons on the machine. I noted that she did not appear physically restricted in doing that, and did not appear in any discomfort or pain as a result. Nevertheless, if she were required, as part of a job, to use only her right arm, on a sustained basis, given the history of the pain developing from heavier tasks such as lifting wood, I consider she could not sustain use of her right arm for several hours of the day.
124 Finally, I am satisfied that the plaintiff has undertaken all recommended rehabilitative treatment. I am satisfied that she has been motivated to return to some suitable employment, has discussed the prospect with her GP, but not capable of doing so as a result of the physical injury to her left shoulder and arm. I am also satisfied that there is no retraining which would be reasonable for her to have undertaken to date, nor which she is likely to be able to undertake for the foreseeable future, which is likely to equip her for alternative suitable work.
125 I am therefore satisfied that the plaintiff is presently incapacitated by the injury to her left shoulder and arm for her pre-injury employment duties and for any other suitable employment, and that she is likely to remain so incapacitated for the foreseeable future.
Conclusions
126 I am satisfied that in the course of her employment with the defendant on or about 1 November 2009, the plaintiff suffered injury to her left shoulder and arm which constitutes as serious injury as to both pain and suffering and loss of earning capacity under the definitions in the Act. Accordingly I intend to grant her leave to bring proceedings for both pain and suffering and pecuniary loss damages.
CI-14-03721
Clare - v – Eureka Operations t/a Coles Express
SCHEDULE OF DOCUMENTS EXHIBITED
| Exhibit Number | Short Description of Exhibit | Court Book Ref |
| A | Affidavits of Plaintiff made 20 March 2014 and 21 January 2015 | PCB5-11, 12-17 |
| B | Letter of termination from Coles Express to Plaintiff dated 24 July 2013 | |
| C | Report of Dr William Crouch dated 14 April 2011 | PCB18-20 |
| D | Reports of Dr James Choong dated 2 May 2011, 22 March 2013, 12 April 2013, 14 February 2014, 7 January 2015 | PCB21-27 |
| E | Reports from Dr Saleem Khan dated 21 February 2012 and 12 October 2012 | PCB 28-30, 31-41 |
| F | Report of Mr David Chehata dated 3 May 2013 | PCB 42-43 |
| G | Reports of Mr David Mitchell dated 21 June 2011, 2 August 2011 , 18 September 2011, 27 September 2011, 31 October 2011 and 24 April 2013 | PCB 44,45,46,47,48-50,51-52 |
| H | Report of Mr Russell Miller dated 22 September 2014 | PCB 53-61 |
| J | Report of Dr Helen Sutcliffe dated 27 November 2014 | PCB 62-76 |
| K | Radiological reports | |
| Ultrasound of left shoulder dated 29 October 2010 | PCB 86 | |
| MRI of left shoulder dated 18 March 2011 | PCB 87-88 | |
| Ultrasound of left shoulder and joint injection dated 11 August 2011 | PCB 89 | |
| MRI of left shoulder dated 20 September 2011 | PCB 90-91 | |
| Ultrasound of left elbow and MRI of cervical spine dated 9 March 2012 | PCB 92-93 | |
| MRI of left shoulder dated 27 April 2013 | PCB 94 | |
| L | Reports of Ms Katrine Green dated 29 January 2015 and 11 February 2015 | PCB 94A-94N, 940-94S |
| M | Reports of Mr Paul Kierce dated 2 March 2011, 28 March 2011 and 27 July 2011 | PCB 98-109, 110-111, 112-120 |
| N | Report of Mr Murray Stapleton | PCB 134-137 |
| O | Workers Injury Claim form dated 1 November 2010 and Employer Injury Claim Report dated 3 November 2010 | PCB 155-156, 157-158 |
| Clinical notes of Dr Crouch and Dr Choong from 29 October 2012 to 2 May 2014 | ||
| 3 Discs recording video surveillance of Plaintiff on 1, 2, 3 May 2014, 29 December 2014 and 10 January 2015 | ||
| Report of Dr Gary Davison dated 1 July 2014 | DCB1-14 | |
| Ipar Vocational Assessment Report dated 4 February 2015 | DCB26-44 | |
| Reports of Dr Stephen Stern dated 19 August 2011 and 18 December 2013 | PCB143-148 and 149-154 | |
| Report of Dr Michael Epstein dated 16 December 2014 | PCB77-85 | |
| Reports of Mr Macarthur dated 26 February 2013, 25 March 2013 and 9 July 2013 | PCB121-128, 129-130, 131-133 |
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