Clark v Victorian WorkCover Authority
[2022] VCC 303
•24 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02767
| SARAH LOUISE CLARK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2022 | |
DATE OF JUDGMENT: | 24 March 2022 | |
CASE MAY BE CITED AS: | Clark v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 303 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right upper extremity/right shoulder, chronic pain syndrome and/or disorder – leave sought for pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325, s327, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ninkovic v Pajvancek [1991] 2 VR 427; Humphries and Anor v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Meadows v Lichmore [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan [2006] VSCA 254; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Demmler v Transport Accident Commission [2018] VSCA 284; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Limited [2020] ACTSC 353; Hunter v Transport Accident Commission [2005] VSCA 1
Judgment: Leave granted to the plaintiff to commence a common law proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms K Manning | Henry Carus & Associates |
| For the Defendant | Mr C Miles | Hall & Wilcox |
Table of Contents
Introduction
Legal principles
Ms Clark’s background
Ms Clark’s medical history
Ms Clark’s injury
Ms Clark’s medico-legal reports
Mr David Slattery, orthopaedic surgeon
Dr Alan Jager, forensic psychiatrist
Dr David Weissman, consultant psychiatrist
Dr Joseph Slesenger, occupational physician
The Defendant’s medico-legal reports
Dr Graeme Doig, general orthopaedic and trauma surgeon
Mr Rodney Simm, orthopaedic surgeon
Associate Professor Saji Damodaran, consultant psychiatrist
Dr Natalie Krapivensky, consultant psychiatrist
Dr Ralph Poppenbeek, occupational physician
Dr Dominic Yong, specialist occupational physician
Witnesses and evidence
Submissions
What injuries did Ms Clark sustain?
Right shoulder injury – 2014
Right shoulder injury – 7 October 2016
Credibility
Is the right shoulder injury suffered on 7 October 2016 a “serious injury”?
Pain and suffering consequences
Pain
Sleep
Medication
Activities of daily living
Personal care
Social interaction
Sports
Photography
Hobbies
Driving
Bike riding
Pre-injury employment
Are the pain and suffering consequences permanent?
Disentangling
Conclusion
HER HONOUR:
Introduction
1On 7 October 2016, the plaintiff (“Ms Clark”) suffered an injury to her dominant right shoulder while attempting to move a box, above head height, towards her in the course of her employment with In Vitro Technologies Pty Ltd (“IVT”). The issue to be determined in this proceeding is whether, on the balance of probabilities, the injury Ms Clark sustained was a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) such that Ms Clark should be granted leave pursuant to s335(2)(d) of the Act, to issue common law proceedings for the recovery of pain and suffering damages.
2Leave was not sought to issue common law proceedings to recover pecuniary loss damages and a foreshadowed claim that Ms Clark sustained a “serious injury” within the meaning of paragraph (c) of the definition of “serious injury” in s325(1) of the Act was abandoned at trial.
3The assessment of whether the injury is “serious” for the purposes of the Act, is assessed at the time the application is heard.
4Having considered all the evidence, I have formed the view that:
(a) Ms Clark sustained two right shoulder injuries, being:
(i)a right shoulder injury in 2014, being tenosynovitis and a slightly thickened subacromial/subdeltoid bursa, suggesting mild bursitis;
(ii)a right shoulder injury on 7 October 2016, being impingement and subacromial bursitis and tendonitis of the biceps tendon as well as synovitis inside the AC joint;
(b) The right shoulder injury sustained in 2014 was asymptomatic immediately prior to her subsequent injury on 7 October 2016;
(c) Ms Clark was a credible witness;
(d) Ms Clark’s right shoulder injury sustained on 7 October 2016 has produced impairment consequences which are more than “significant and marked” and at least “very considerable”;
(e) The 7 October 2016 right shoulder injury and its pain and suffering impairment consequences are permanent;
(f) Ms Clark has suffered a “serious injury”;
(g) there is a substantial organic basis for the relevant consequences relied upon and it is not necessary to disentangle the physical contribution to the pain from any psychological contribution.
Legal principles
5Section 325(2) of the Act relevantly provides as follows:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of body function, … with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible … mental or behavioural disturbances or disorders …
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
…
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j) the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;
… .”
6It is necessary first, to identify the nature and extent of the injury relied upon and the consequent impairment of the body function said to have been produced. Consideration can then be given to whether the consequences for the plaintiff are “serious” for the purposes of s325(2)(b) and (c).[1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [33] (per Ormiston, Chernov and Phillips JJA)
7To establish “serious injury”, the plaintiff must satisfy the Court, on the balance of probabilities, that the organically-based physical pain and suffering consequences – as opposed to psychological or non-organic consequences – satisfy the statutory criterion of being “more than ‘significant’ or ‘marked’” and “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function.[2]
[2] Section 325(2)(b) of the Act
8The test to be applied was identified by Marks J in Ninkovic v Pajvancek[3] and accepted by the Court of Appeal in Humphries and Anor v Poljak.[4]It is a subjective test in that the effect on a body function of a particular applicant is what must be considered. However, the determination must be objectively made.[5]
[3][1991] 2 VR 427
[4][1992] 2 VR 129
[5](Ibid) at 137
9The assessment of whether the consequences of an impairment are “at least very considerable” and certainly more than “significant” or “marked”, involves matters of degree, impression, and value judgment[6] as to relative incapacity.[7] The task requires the Court to consider the whole of the evidence to try to place a particular claimant’s injury within a spectrum of seriousness of injuries.[8] Within that range is a point at which an injury becomes “very considerable”.[9]
[6]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[7]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 (“Papaconstantinou”) referring to Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]
[8]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
[9]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”)
10In Haden Engineering Pty Ltd v McKinnon,[10] the Court of Appeal identified that the “pain and suffering consequences” of an injury encompass both the plaintiff’s experience of pain as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency, and duration of the pain must be assessed. This involves consideration of the plaintiff’s account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the doctors’ views about the extent and intensity of a plaintiff’s pain, and what the objective evidence demonstrates with respect to the disabling effect of the pain.[11]
[10]Haden (supra)
[11] Haden (supra)
11It is well established that in serious injury applications where the prospect of the relevance of psychological or psychiatric consequences of a physical injury is raised, a two-step process of analysis should be adopted.[12] The first step is to ask whether there is a substantial organic basis for the relevant consequences relied upon. The fact that a plaintiff has previously coped with an injury, but is not coping with a later injury, suggests that the symptoms attributed to the later injury have a substantial organic basis sufficient to satisfy the “serious injury” threshold.[13]
[12]Meadows v Lichmore [2013] VSCA 201 (“Meadows”) at paragraphs [21]-[24]
[13]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605 at paragraphs [24]-[29]
12If there is a substantial organic basis for the claimed consequences, and if the relevant consequences satisfy the statutory criterion, then the application will succeed without the need for any “disentangling” of the physical versus the psychological manifestations of those consequences.[14] If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to proceed to the next step and separate the physical manifestation of the pain and suffering from the psychological to satisfy the Court that the “pain and suffering consequences” attributable to the physical injury satisfy the statutory test.[15]
[14] Ibid
[15]Meadows (supra) at paragraphs [21]-[23]; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 (“Peak”)
13The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.[16] The opinions of the doctors are dependent on the credibility and reliability of the history given to them by the plaintiff and may be of less weight if the plaintiff is not an accurate historian.[17]
[16]Haden (supra) at paragraph [12], citing Dwyer (supra) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 (“Sejranovic”) at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[17]Dordev v Cowan [2006] VSCA 254 at paragraph [14], per Chernov JA (Maxwell P and Neave JA agreeing)
14Other matters which may also be relevant to an assessment of the seriousness of an injury include the effect of pain on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[18]
[18] Haden (supra) at paragraph [16]
15The inability of a worker to engage in employment which he or she undertook is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life.[19]
[19]Haden (supra) at paragraph [15] (per Maxwell P); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]; Peak (supra) at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]. .
16Ultimately, the assessment of whether the pain and suffering consequences of an injury are “serious” involves matters of degree, impression, and a value judgement[20] as to relative incapacity by consideration of the whole of the evidence,[21] including objective evidence of diagnostic tests which are unaffected by a plaintiff’s credit.[22]
[20]Kelso v Tatiara Meat Co Pty Ltd (supra); see also Sabo v George Weston Foods (supra) at paragraph [67]
[21]Papaconstantinou (supra) referring to Yirga-Denbu v Victorian WorkCover Authority (supra) at 573, paragraph [89]
[22]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]; Ryan v Bunnings Group Limited [2020] ACTSC 353 at paragraphs [27]-[29]
17In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard[23] and must disclose the path of reasoning in dealing with the evidence and the issues raised by the application.[24]
[23]Section 325(2)(j) of the Act
[24]Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
Ms Clark’s background
18Ms Clark was born in January 1987 and is currently thirty-five years old.
19She is single and is currently living in Santiago, Chile. She previously lived with her mother and three nephews in Australia.
20She is right-hand dominant.
21She completed school to Year 12 and was subsequently employed in real estate and general property management. She then worked at various labour-hire companies across industries including hospitality, cleaning and administration.
22In 2014, Ms Clark commenced working for IVT. She was initially placed at IVT by Skilled Labour Hire, a labour-hire organisation. She was later offered ongoing employment directly by IVT.
23Ms Clark worked in various areas of the business including as a forklift driver, a despatch clerk, a customer service advisor, in the distribution of spare parts and establishing a database for stock control across Australia and New Zealand.
24Ms Clark’s duties involved moving boxes of spare parts around the warehouse and logging them onto a computer. The weight of the boxes varied, with some being able to be lifted manually, while others required a forklift to lift them.
Ms Clark’s medical history
25Ms Clark had a previous medical history of suffering from anxiety and depression – including in 2012[25] – drug and alcohol abuse and treatment by a psychologist, Dr Khan, at First Health Medical Clinic.[26]
[25] Exhibit A, p70
[26] Transcript (“T”) 11; Line/s (“L”) 15-23
26In 2014, Ms Clark said that she injured her right shoulder at work.[27]
[27] T10, L28-30
27Following that injury, Ms Clark said that she was on light duties for two weeks but then returned to unrestricted duties. Her evidence was that she did not continue to suffer any ongoing effects from that injury.
Ms Clark’s injury
28On 7 October 2016, Ms Clark injured her right shoulder and upper back. She said she was working on a platform. She attempted to move a box located above head height. The weight of the box was not marked on it. Ms Clark attempted to pull the box towards her and felt sharp pain in her right shoulder.
29Ms Clark said that she immediately reported the incident to her manager. She was given an icepack and some Panadol and was taken by taxi to the Belgrave Medical Centre where she was treated with painkilling medication. She believed she took a few days off work.
30The doctors at Belgrave Medical Centre remained Ms Clark’s treating medical practitioners after her shoulder injury in 2016 and she saw various doctors there including Dr Nally and Dr Oh.[28]
[28] T11, L24-30
31On 21 October 2016, Ms Clark underwent an ultrasound of her right shoulder.
32On 28 October 2016, a steroid injection was administered to Ms Clark’s right shoulder.
33On 9 November 2016, an MRI scan was taken of her right shoulder.
34Mr Rodney Richardson was the first orthopaedic surgeon Ms Clark was referred to. He wrote a report dated 10 November 2016.[29] Ms Clark said that he recommended conservative treatment with physiotherapy and a further steroid injection. He advised Ms Clark against surgery.
[29] Exhibit A, p51
35In November 2016, Ms Clark was referred to a second orthopaedic surgeon, Mr Trung Nguyen.
36On 22 December 2016, Mr Nguyen performed a right shoulder decompression and long head bicep tendinosis procedure.
37After the surgery, Ms Clark took some time off work. She sought treatment from a physiotherapist. She became depressed and continued to complain of shoulder pain. Mr Nguyen recorded it as being the same as before the surgery.[30] Ms Clark continued to seek treatment from Mr Nguyen.
[30] Exhibit A, p56
38In early 2017, Ms Clark started studying photo-journalism part-time at RMIT. Initially, she was continuing to work full time with IVT.
39It was put to Ms Clark in cross-examination that in January 2017, she indicated to IVT that she intended to resign, following which IVT offered her part-time work. This enabled Ms Clark to be employed part time and also to pursue her studies.[31]
[31] T12, L29 – T13, L15
40Ms Clark said that she returned to work on modified duties in April 2017.
41Ms Clark remained working for IVT until July 2017 when she resigned from her employment. She said she was having significant difficulties coping with the work due to pain and lack of mobility. She also stated that she realised she was not going to be able to return to full-time duties and decided to enrol in a university degree at Deakin University. She said she anticipated being able to translate her university courses into a career at some time in the future.
42Ms Clark saw Dr Nguyen again on 6 July 2017. He considered that her ongoing pain was probably emanating from her AC joint. He referred her for a further MRI scan of her right shoulder which occurred on 14 July 2017.
43After the MRI scan of her right shoulder, Ms Clark said that her shoulder did not get better and her pain increased.
44Ms Clark saw Mr Nguyen again on 7 June 2018. She still had persistent symptoms in her right shoulder, especially at night. Mr Nguyen considered her next option to be removing the rest of the os-acromiale. He referred Ms Clark for a further MRI scan of her right shoulder.
45On 9 August 2018, Mr Nguyen noted that Ms Clark had received approval for further decompression surgery.
46On 10 October 2018, Ms Clark had a second right shoulder decompression operation. Mr Nguyen’s operation report notes that the arthroscopic findings with respect to the subacromial space were that the subacromial bursa was “very thickened, scarring and inflamed. There was a remnant of the mobile os-acrominale (sic). The AC joint had severe synovitis inside.”
47Mr Nguyen noted in his physiotherapy letter to Paoline Li, physiotherapist, dated 31 January 2019, that Ms Clark had undergone a right shoulder arthroscopic decompression and AC joint synovectomy on 10 October 2018. He noted that Ms Clark’s initial problem was impingement from an os-acromiale, but that Ms Clark had continued to have persistent shoulder problems with pain and weakness after the second operation. He identified that Ms Clark would benefit from rotator cuff muscle strengthening physiotherapy and exercises.[32]
[32] Exhibit A, p62
48Ms Clark subsequently received physiotherapy treatment at Ferntree Gully Physiotherapy and at Stay Tuned Sports Medicine.
49In 2019, she commenced physiotherapy at Superspine. She received some initial minor relief from this treatment, but the level of pain and restriction to her right shoulder returned.
50In 2019, as part of her studies, Ms Clark travelled to Chile for a month, after which she returned to Australia.
51On 16 October 2019, Dr Oh, general practitioner, at the Belgrave Medical Centre, referred Ms Clark to Dr Angela Chia, pain specialist. The referral letter noted that Ms Clark had undergone previous shoulder decompression surgery and had previously required long-term opiates including Panadeine Forte, Oxycontin, Endone as well as a trial of amitriptyline. Dr Oh also referred to Ms Clark taking Panadol Osteo, Voltaren (which Ms Clark was not taking at the time due to concerns about long-term use) and Cymbalta. Ms Clark was noted to have ongoing pain in her right shoulder, despite regular physiotherapy, which kept her up at night.
52Dr Chia saw Ms Clark and reported back to Dr Oh by letter dated 26 November 2019. Ms Chia noted on examination that Ms Clark had hyperalgesia, allodynia and restricted range of movement. She said that this was affecting Ms Clark’s daily functioning, so much so that after her injury, Ms Clark had to change to modified duties, subsequently lost her job and returned to university to study creative arts.
53Ms Clark’s right-hand function was much weaker than her left. She could not pick up heavy equipment or her one-year-old nephew. Dr Chia suggested that Ms Clark needed a pain management program which incorporated pain medications, nerve blocks and allied health input, including osteopathy, physiotherapy and psychology.
54Ms Clark said that she has also attended a psychologist on a few occasions to assist with management of her mental state.
55In January 2020, not long after Ms Clark saw Dr Chia, she travelled to Chile as part of a cross-institution study program. Unfortunately, due to the COVID-19 pandemic, Ms Clark became stranded in Chile, and she remains there. She intends to return when practicable and when the journey will not require extended air travel through multiple countries.
56Ms Clark submitted a WorkCover claim in respect of her right shoulder injury which was accepted by the defendant’s WorkCover insurer.
57On 23 July 2020, Ms Clark lodged a Claim for Impairment Benefits which was also accepted.
58While in Chile she has attended an orthopaedic surgeon on a number of occasions, and she has also attended a practitioner in kinesiology. She also attends a general practitioner for prescriptions for pain relief.[33]
[33] T7, L16-22; Exhibit A, p96-97
59Ms Clark completed her Bachelor of Creative Arts from Deakin University in 2021, majoring in photography. She has also been awarded a diploma in Spanish.
Ms Clark’s medico-legal reports
Mr David Slattery, orthopaedic surgeon
60Mr David Slattery interviewed and examined Ms Clark via a telemedicine consultation with the use of a goniometer on 24 September 2020, and prepared a report dated 8 October 2020. He prepared a further report dated 19 November 2021 following a second telemedicine consultation on 15 November 2021.
61The medical history taken by Mr Slattery was of a previous right shoulder injury two years prior to the subject incident, which occurred while lifting a 12-kilogram bottle of detergent at work. An ultrasound dated 5 December 2014 suggested tenosynovitis and a slightly thickened subacromial/subdeltoid bursa, suggesting mild bursitis. Ms Clark said she made a full recovery approximately one month following the injury with non-operative treatment.
62In his report dated 8 October 2021, Mr Slattery recorded Ms Clark’s current complaints of right anterior shoulder pain, distal to the acromioclavicular joint, which radiated posteriorly down to the elbow.
63Ms Clark was taking Oxycodone, 5-10 milligrams, two to three times per week; duloxetine, 60 milligrams per day; pregabalin, 100 milligrams per day; Celebrex, 100-200 milligrams per day, and pantoprazole, 40 milligrams per day.
64Ms Clark told Mr Slattery that her pain was a 4 out of 10 at rest and could reach a 10 out of 10 with activity. She reported that the pain was aggravated by carrying a handbag, cooking, lifting, getting dressed and putting a bra on. She uses her left hand for showering and brushing her teeth. Washing and drying her hair was very difficult, and she had difficulty with dressing including fastening buttons on skinny jeans and pulling on elastic shoes.
65She also said that she was unable to lift objects using her right hand out of overhead cupboards and had difficulty opening jars using her right hand. She was able to cook but found chopping vegetables and lifting heavy items in the kitchen including pots and pans to be difficult. She reported being unable to vacuum, clean the shower, change bedlinen or attend to other heavy household chores. She was unable to sleep on her right shoulder, and the pain worsened with direct pressure. She did not report stiffness of the shoulder but said it felt as though it was restricted.
66She had played basketball prior to the injury but said she was now unable to do so due to the condition of her shoulder. She was also now unable to play guitar, paint large canvases, do mechanical work on cars, ride a motorbike off road, go hiking or four-wheel driving, or play games with her nephews, niece and dog – all things she used to enjoy.
67Mr Slattery noted that Ms Clark was able to drive a car with some difficulty and was able to catch public transport, though he noted that she found that problematic as she has difficulty holding onto the railing, as she often has to stand.
68During the examination, Mr Slattery observed Ms Clark appearing to have difficulty dressing and undressing and noted that she did not move her arm above shoulder height when doing so. He observed two surgical incisions approximately 2 centimetres in length over the right mid-deltoid and anterior shoulder joint. He noted Ms Clark had tenderness to palpation over the acromioclavicular joint and over the subdeltoid bursa, and that she had pain and discomfort at the extremes of range of motion.
69Ms Clark had flexion to 100 degrees, extension to 20 degrees, abduction to 90 degrees and adduction to 40 degrees. Her internal rotation was to 75 degrees and external rotation was to 80 degrees.
70Mr Slattery was provided with radiological reports and various medical reports which he reviewed prior to completing his report; although he noted that she had not been reviewed with imaging or by an upper limb specialist for over eighteen months.
71Mr Slattery opined that Ms Clark had right shoulder subacromial bursitis and biceps tendinitis. He said her prognosis was guarded. She has chronic recalcitrant symptoms despite two shoulder operations, injections and extensive physiotherapy. He said that Ms Clark would likely continue to experience pain and functional limitations for the foreseeable future.
72He opined that Ms Clark’s capacity for physically strenuous work was limited indefinitely. She has a capacity for suitable, sedentary or desk-based roles.
73In his subsequent report dated 19 November 2021, Mr Slattery noted that Ms Clark had been receiving kinesiology-based treatment on a weekly basis for the past three months. She had also been undertaking home-based exercise and had been seen by an orthopaedic surgeon, Dr Julio Teran, in Chile. She had also undergone an MRI scan of her right shoulder but did not have access to the results.
74Ms Clark reported a worsening of her symptoms since Mr Slattery’s earlier report, describing pain varying from 7 out of 10 to 10 out of 10 in severity, depending on her activity level. She also reported getting intermittent pins-and-needles in the right shoulder, having significant weakness and feeling a constant clicking and catching affecting her right shoulder.
75Since the last examination, Ms Clark reported that she had required intermittent assistance with getting dressed and undressed. She experienced the same limitations in showering, cooking and cleaning, catching public transport and undertaking her hobbies as she had previously.
76Ms Clark told Mr Slattery that she had her food and groceries delivered and that she and her housemates employed a cleaner once per week.
77Mr Slattery performed an updated examination, recording that Ms Clark had flexion to 90 degrees and extension to 15 degrees, abduction to 85 degrees, adduction to 50 degrees, internal rotation to 5 degrees and external rotation to 90 degrees.
Dr Alan Jager, forensic psychiatrist
78Dr Alan Jager prepared a medico-legal report on behalf of the plaintiff dated 2 October 2020 following an assessment via Skype of Ms Clark on 10 September 2020. The report was tendered by the defendant.
79Dr Jager recorded Ms Clark’s history of right shoulder injury following a workplace injury on 7 October 2016, in which she suffered “excruciating pain” to her right arm. He recorded details of Ms Clark’s treatment history, including surgical intervention and cortisone injections.
80He noted that Ms Clark recounted that it was after the first operation that she started feeling depressed. Although she had moved in with her mother prior to the injury to help look after her nephews, she required assistance with showering from her mother. She was unable to help preparing meals.
81Dr Jager recorded that Ms Clark was, at the time of his assessment, without a visa and was trying to find part-time work, while stuck in a COVID-19 level 3 lockdown in Chile.
82Ms Clark told Dr Jager that she returned to work on part-time restricted duties in April 2017. She said she never returned to normal duties or full-time work. Accordingly, she resigned from her role in July 2017 because she had “no job satisfaction”.
83Ms Clark told Dr Jager that she first drank alcohol at the age of sixteen or seventeen and was never a heavy drinker. Heavy drinking did not occur until after her workplace injury. She had been a heavy drinker since 2017. She reported increasing her alcohol intake “to help [her] sleep”. She would drink alcohol as early as midday but usually waited until 4.00pm.
84Dr Jager recorded that Ms Clark had pain in the right shoulder and arm, spreading to her neck and upper spine after she had slept.
85At the time of the report, Ms Clark was taking duloxetine, 60 milligrams in the morning, Endone as required, pantoprazole and pregabalin.
86Ms Clark reported feeling depressed most of the time about COVID-19, being stuck in Chile without being able to work, and due to her work injury.
87Dr Jager reported a diagnosis of Chronic Adjustment Disorder with Depressed Mood, and recommended that Ms Clark cease all alcohol consumption, and obtain adequate pain relief and supportive counselling.
88Dr Jager opined that Ms Clark’s psychiatric condition did not interfere with her ability to undertake essential activities of daily living or domestic tasks, nor her ability to undertake employment. He said that her depressed mood interfered with her ability to participate in and enjoy recreational activities, above and beyond the limits of her physical restrictions.
Dr David Weissman, consultant psychiatrist
89Dr David Weissman prepared a medico-legal report on behalf of the plaintiff dated 9 December 2021 following an assessment via Zoom of Ms Clark on the same day. This report was tendered by the defendant.
90Dr Weissman was provided with various orthopaedic reports, along with the psychiatric reports of Associate Professor Saji Damodaran, Dr Natalie Krapivensky, and Dr Juan Carlos Koncilja, psychiatrist and psychoanalyst.
91Dr Weissman took a past medical history from Ms Clark, recording that at age sixteen, she had previously suffered from depression when her sister left home. She had been treated with anti-depressant medication, but she did not “agree” with medication due to her sister having had problems with drugs. Ms Clark saw a psychologist/counsellor aged nineteen. She had a further episode of depression at the age of twenty-five and saw a psychologist two years later. She was not treated with anti-depressant medication. She was not suffering from an active psychiatric condition during the course of her employment with her employer.
92Dr Weissman noted the psychological impact of the workplace injury on Ms Clark. She reported that she used to be “very bubbly, outgoing, funny and sarcastic”, and that she loved photography, art, painting and drawing, playing the drums and guitar”. Ms Clark said that since the injury:
“I’m no longer like that. I’m definitely not the same person. I now prefer a lot of time alone. I don’t want to be out and about and especially when I have to carry things or if it involves physical activity.”
93Dr Weissman recorded that Ms Clark was currently prescribed bupropion which had ceased. She had also taken zopiclone. She was currently taking sertraline, which had increased from 50 milligrams to 75 milligrams daily, and quetiapine, 25 milligrams nocte. She was also taking anti-inflammatory medication. She was taking pregabalin, 75 milligrams BD, and a medication similar to Tramadol, the name of which was not provided. She was seeing a psychiatrist on a four to six-weekly basis.
94Ms Clark described to Dr Weissman that her concentration and short-term memory were “not so good”, and that she could not focus. She said she could not cook anymore and did the minimum amount. She had been trying to teach herself to use her left hand for artwork and drawing. She gave a consistent history of restrictions of her activities of daily living as provided above.
95She described her sleep as “terrible”, due to pain and discomfort, and she could not sleep on her right side; accordingly, she used a pillow as a prop for her right side.
96She had gained a significant amount of weight following her first operation, which resulted in bulimic symptoms. She reported that she has since returned to a weight similar to pre-injury.
97She described spending a lot of time “doing nothing”, and “wasting” her time, and that her self-esteem and confidence were “not very good”, which meant she was very self-conscious. She reported feeling hopeless, helpless, worthless and useless. She felt depressed every day, and anxious and worried, particularly about the future. She became frustrated and irritable which she felt was out of character for her.
98She rated her current mood as a 3 out of 10, with 0 out of 10 being the bottom of the scale.
99In response to Dr Weissman asking Ms Clark if she would be able to do any work in the future, she said “[n]ot physically. My mental health would need to have a kick up the bum … something that doesn’t involve using my extremities.” She told Dr Weissman that she was undertaking teaching English as a foreign language course and had thought about continuing teaching English and would like to work with children.
100Dr Weissman opined that there had been a “major change, decline, deterioration, and downturn in her pre-injury personality, temperament, character and disposition”. He stated that the content of Ms Clark’s thinking revealed:
“… moderate mixed reactive depressive and anxiety symptoms, themes and features with uncharacteristic frustration as a consequence of, or secondary to, her employment-related pain, injuries, disabilities, limitations and restrictions.”
101Dr Weissman reported that Ms Clark had also been suffering from alcohol abuse over a four-year-period, which had since reduced. He recorded that this had occurred as a form of self-medication.
102Dr Weissman concluded that Ms Clark was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity relevant to her employment. She also has some ongoing elevated alcohol consumption/misuse. He recommended that Ms Clark continue with her current psychotropic medication regimen and ongoing psychoeducation regarding alcohol consumption.
Dr Joseph Slesenger, occupational physician
103Dr Slesenger examined Ms Clark via a Telehealth appointment on 2 December 2021 and prepared a report dated 28 December 2021.
104Dr Slesenger identified Ms Clark’s past medical history, including the previous right shoulder injury while handling a bottle of detergent, as outlined above to Mr Slattery, as well as a motor vehicle accident in 2019 when she fell asleep while driving and was treated for whiplash. He recorded that her symptoms from both incidents resolved.
105Ms Clark described to Dr Slesenger her current symptoms of residual right shoulder pain over the anterior and lateral aspect of the shoulder, and a severe restriction to the range of shoulder movements; being unable to laterally raise or forward reach around to the level of her shoulder.
106Dr Slesenger recorded that Ms Clark struggled to reach her backside, although she was able to toilet herself. She had difficulty lying on her right side and woke during the night. She avoided repetitive tasks, over shoulder and forward reaching. She was otherwise supported by her housemates with regard to domestic duties, and occasionally required assistance to do up her bra. She and her housemates employed a cleaner and her groceries were delivered.
107In relation to activities undertaken by Ms Clark, Dr Slesenger recorded a similar history to Mr Slattery, in that Ms Clark had been unable to return to sports or her hobbies.
108Dr Slesenger detailed Ms Clark’s current medications as including zopiclone; Butrino, 150 milligrams; sertraline, 50 milligrams; quetiapine, 25 milligrams; omeprazole, 40 milligrams; Celebrex, 400 milligrams; ibuprofen, 400 milligrams; pregabalin, 75 milligrams twice daily, and Zonix once daily. He also noted that she was seeing a psychologist on a monthly basis, a kinesiologist weekly, and was engaging in a self-managed exercise program on a daily basis.
109It was recorded that Ms Clark had ceased work at the time of her first surgery in December 2016. She returned to work for a few months performing office-based tasks and ceased work in June 2017 due to persistent symptoms. She was offered a return to work in an administrative role but was unable to maintain attendance in the role due to commencing a university course, and the role ceased. She subsequently commenced work in a hospitality role at Century City, on a part-time basis for about three months, before she took a hospitality role at the Dorset Gardens Hotel, where she worked for nine months, before ceasing due to aggravation of her shoulder symptoms, and subsequently undergoing the second shoulder surgery.
110Ms Clark told Dr Slesenger she had not returned to an employed role and had not worked since 2018. She is currently living in Chile. She had travelled there while on an exchange program with Deakin University while completing a Bachelor of Creative Arts. She had commenced but had not then completed a certificate in teaching English. She did not hold a Chilean work visa. She was unable to travel to Australia due to the pandemic.
111Dr Slesenger recorded that Ms Clark had struggled with her degree, particularly with the manual handling tasks associated with studio photography and field shoots. She had adapted and become more reliant upon camera stands, and on her classmates and support crew.
112During examination, Dr Slesenger observed portal scarring around the right shoulder. He recorded that Ms Clark demonstrated severe restriction to the right range of shoulder movements, with flexion to 70 degrees, extension to 30 degrees and abduction to 60 degrees.
113Dr Slesenger recorded that Ms Clark should adhere to the following restrictions:
“● No push, pull, carry and lift over 3 kg on a repetitive basis and 5 kg on an occasional basis.
●Avoid sustained forward reaching.
●Avoid over shoulder reaching.
●Avoid repetitive shoulder tasks.”
The Defendant’s medico-legal reports
Dr Graeme Doig, general orthopaedic and trauma surgeon
114Dr Doig examined Ms Clark on 11 October 2019. He took a history from her, including her presenting complaint, her subsequent work history, her medication, investigations, occupational history, social history, her limitations and past medical history.
115Upon clinical examination, Ms Clark shook hands normally with her right hand. She had tightness in the right side of her neck. She was tender over her antero-lateral rotator cuff with restricted active range of motion arcs. There was a 2.5-centimetre brown lateral scar at top of the right shoulder and a brown portal scar. There was no neurological deficit in her upper limbs.
116Ms Clark had 100 degrees of flexion to 20 degrees of extension. She had 100 degrees of abduction to 30 degrees of adduction and 80 degrees of external rotation to 40 degrees of internal rotation.
117Mr Doig diagnosed a soft-tissue injury to Ms Clark’s dominant right shoulder with subacromial bursitis and impingement. She had experienced a poor outcome following her surgeries, with ongoing pain and restriction. Her condition had reached maximum medical improvement as per the definition of AMA4 Guides and her prognosis was guarded with respect to returning to pre-injury employment.
Mr Rodney Simm, orthopaedic surgeon
118Mr Simm examined Ms Clarke via Zoom on 20 April 2021 for the purpose of undertaking an independent medico-legal assessment and provided a report to the plaintiff’s solicitors of the same date.
119Mr Simm said that Ms Clark presented as a straightforward, detailed historian. He took a history of a right shoulder injury. In her affidavit, Ms Clark had referred to this occurring in 2013, but Mr Simm noted that Ms Clark thought that this date was incorrect, because she recalled that the injury occurred while she was employed at IVT, where she started work in 2014. The injury occurred when she lifted a 12-kilogram bottle. Mr Simm noted that Ms Clark had told him that she had a few days off work and then returned to light duties. She was treated with physiotherapy and anti-inflammatory medication. Her shoulder was investigated with an ultrasound, and bursitis was diagnosed. She told Mr Simm that her shoulder fully recovered.
120At the time of clinical examination, there was evidence of pain and her range of movement included flexion of 90 degrees, extension of 40 degrees, abduction of 80 degrees, adduction of 30 degrees, external rotation of 80 degrees and internal rotation of 60 degrees. At the end point of forward elevation and abduction, a very coarse tremor developed, and Ms Clark suffered increased pain. There was also restriction in internal rotation.
121Ms Clark had no neck pain, or distal radiation of arm pain. She had intermittent pins and needles down her arm into her fingers and very limited movement in her right arm. She could not reach overhead and when she tries her arm shakes. She could not even lift light weights such as a kettle. She avoids shopping. She drinks heavily.
122Mr Simm considered that Ms Clark’s symptoms had stabilised. She had pain daily which varied from 3 out of 10 to 10 out of 10, with pain at 10 out of 10 occurring about two days per week, usually as a result of Ms Clark rolling on her shoulder in bed or repeated lifting. Ms Clark’s pain was mostly at front of shoulder (deltoid) but there was still some pain on top of her shoulder and her shoulder crunches.
123Mr Simm considered that there was likely impingement of a mildly degenerate rotator cuff between the humeral head and the overlying acromion which caused injury.
124He considered that there were minor subacromial changes on the original MRI scan and observed Mr Rodney Richardson noted findings consistent with right shoulder subacromial impingement. However, he considered that the physical condition was associated with, and to some extent, was being overtaken by, a chronic adverse pain reaction. Further, the minor nature of the injury was such that it was most unlikely that the injury resulted in traumatic damage to the shoulder and the subsequent investigations did not demonstrate evidence of traumatic injury. Ms Clark had exquisite unexplained soft tissue tenderness, and in Mr Simm’s view Ms Clark had a Chronic Regional Pain Syndrome which would continue for an indefinite time.
125She could return to non-physical work full time.
Associate Professor Saji Damodaran, consultant psychiatrist
126Associate Professor Saji Damodaran examined the plaintiff on 9 December 2019 at the request of the defendant’s insurer, and provided a report dated 16 December 2019.
127Associate Professor Damodaran considered that Ms Clark was co-operative and aware of her surroundings. She maintained good eye contact and engaged in the interview.
128The content of the assessment was dominated by Ms Clark’s ongoing concern of pain and limitations, sense of helplessness, worthlessness and grief. She had fleeting suicidal ideas, no delusions and no cognitive impairment.
129Associate Professor Damodaran diagnosed an Adjustment Disorder with Mixed Anxiety and Depression caused by her pain and her limitations due to pain, and also a Chronic Pain Disorder. He suggested that Ms Clark would benefit from attending a pain specialist and undertaking a chronic pain management program. He considered she should continue seeing a psychologist for six to eight more sessions before engaging with a pain management program and also keep taking anti-depressant medication for six to nine months.
130Associate Professor Damodaran considered that Ms Clark was able to drive. She had capacity for modified pre-injury duties within limitations, and for at least six to nine months she would require periodic breaks for her psychiatric condition. He considered that Ms Clark could work in education, administration, photography within limitations, and as an interpreter.
Dr Natalie Krapivensky, consultant psychiatrist
131Dr Krapivensky examined Ms Clark on 20 October 2021. She noted Ms Clark’s current psychiatric symptoms including a chronically lowered mood and Ms Clark’s statement to her that she was “not motivated to be happy, to socialise”. She noted that Ms Clark had minimal social contact and felt helpless and isolated in Chile.
132Ms Clark was noted to consult Dr Juan Carlos in Santiago approximately once per month. She was unable to afford to see him more frequently. Dr Krapivensky noted that Ms Clark had been taking antidepressant medication, bupropion, 150 milligrams daily, for the last five months, the antidepressant, Sertraline, 50 milligrams daily. She had also been taking quetiapine, 25 milligrams nightly, the anti-anxiety medication, alprazolam, 0.75 milligrams at night, Brufen, Celebrex, and pregabalin.
133On mental state examination, Ms Clark became emotional and tearful towards the end of the interview. Her speech was normal in rate, volume and flow. Her thought patterns were pre-occupied with thoughts of the long-term impact of her shoulder injury on her life, in particular not being able to hold a child or engage in hobbies, as well as loss of capacity and constant pain. There was no disorder of thought, and her insight, judgment and cognition were normal.
134Dr Krapivensky opined that from a psychiatric perspective, Ms Clark has a Chronic Adjustment Disorder and alcohol abuse contributing to the psychiatric condition. She considered that her prognosis was chronic unless she addressed her alcohol abuse. Ms Clark had psychiatric capacity for her pre-injury employment and hours.
Dr Ralph Poppenbeek, occupational physician
135Dr Poppenbeek examined Ms Clark on 22 January 2019. He considered her occupational history, her present state of health, treatment and work status.
136On clinical examination, Dr Poppenbeek observed that Ms Clark had a pleasant outgoing manner. She was of average build and her mobility was satisfactory. She did not wear an arm sling. She held her right shoulder lower than her left in the resting posture.
137There were linear surgical scars noted on Ms Clark’s upper lateral arm as well as arthroscopy scars. There was also marked and specific tenderness at the lateral end of the acromion. There was also specific anterior rotator cuff tenderness. Her movement range was limited, with 75 degrees of flexion and 75 degrees of abduction. Extension and adduction movements were full range. Hand-scapular internal rotation was limited to the lower lumbar region, and, as a result, rotation movements were unable to be assessed.
138Dr Poppenbeek opined that there had been little improvement in Ms Clark’s condition since her surgeries and there was no predicted benefit to further surgery.
139Dr Poppenbeek considered that Ms Clark had no work capacity for pre-injury work but did have a capacity for alternate work with a gradual increase in hours. It was suggested that she could start at four hours per day, three days per week, and gradually increase her work hours to full time over the course of a month, with a 5-kilogram lifting limit, no overhead work, no elevation of her arm and no pushing or pulling.
140According to Dr Poppenbeek, Ms Clark was capable of driving,
141Ms Clark’s recovery was expected to be slow, and Dr Poppenbeek considered that she needed restrictions for up to twelve months. He considered that failure of her treatment was Ms Clark’s biggest issue, despite strong efforts at rehabilitation, and her current treatment would benefit from a multidisciplinary rehabilitation program,
Dr Dominic Yong, specialist occupational physician
142Dr Yong assessed Ms Clark via a Telehealth consultation on 18 October 2021. He noted that she was right-hand dominant.
143Dr Yong took a history of right shoulder pain which was noted to be deep in the shoulder and present on the outer, posterior and front of the shoulder joint. Ms Clark complained of reduced movement and stated that she could not sleep on her right side.
144Ms Clark was noted to have mild wasting of the deltoid, and her right shoulder was depressed in height compared to her left. There was tenderness when palpating laterally and she had reduced range of movement. Her abduction was 60 degrees, adduction 20 degrees, flexion 80 degrees, extension 20 degrees, external rotation 30 degrees and internal rotation 20 degrees. All movements were tender.
145Dr Yong noted Ms Clark’s current treatment included taking Naprogesic, two tablets daily; celecoxib, one tablet daily; omeprazole, 40 milligrams daily; Endone, averaging 20 tablets per month, seeing a kinesiologist weekly and performing home exercises on a daily basis.
146Dr Yong opined that Ms Clark had a right shoulder soft tissue injury with post-surgery persisting shoulder dysfunction. Her injury was associated with psychological comorbidity which had impacted her recovery. It was noted that she required a psychiatrist.
147Dr Yong also recorded that Ms Clark was not capable of undertaking her pre-injury employment. She was capable of undertaking tasks that did not involve duties using her right arm above her shoulder or reaching. Dr Yong considered she needed to avoid repeated firm pushing or pulling tasks and lifting more than one kilogram repeatedly. He also considered it was necessary for Ms Clark to reduce her work hours. His prognosis for full recovery was guarded.
Witnesses and evidence
148At the hearing, Ms Clark relied on the following evidence:
(a) An affidavit sworn by Ms Clark on 16 February 2021;
(b) A further affidavit sworn by Ms Clark on 5 January 2022;
(c) An affidavit sworn by the plaintiff’s husband, Mark Clark, on 22 December 2021;
(d) Reports from her treating health practitioners including Mr Trung Nguyen, orthopaedic surgeon; Ms Paoline Li, physiotherapist; Dr Luke Oh, general practitioner, and Dr Angela Chia, pain specialist;
(e) Reports from medico-legal experts, Mr David Slattery, orthopaedic surgeon, and Dr Michael Slesenger, occupational physician.
149The defendant relied upon:
(a) Reports of Dr Alan Jager, psychiatrist; Dr David Weissman, psychiatrist; Dr Ralph Poppenbeek, occupational physician; Dr Graeme Doig, general orthopaedic and trauma surgeon; Associate Professor Saji Damodaran, consultant psychiatrist; Mr Rodney Simm, orthopaedic surgeon; Dr Dominic Yong, specialist occupational physician, and Dr Natalie Krapivensky, consultant psychiatrist;
(b) Extracts of Go-Fund-Me page, Ranges Trader article ‘Stranded in Santiago’, Deakin University evidence of enrolment in a Diploma of Spanish, Deakin University evidence of enrolment in Photography, LinkedIn page extract of Sarah Clark, Allianz Notice and Allianz 130-week termination notice.
150Ms Clark was the only witness who gave oral evidence. She was cross-examined and re-examined.
Submissions
151There were three principal submissions made on behalf of Ms Clark. First, that she was a credible witness whose evidence about her current level of pain should be accepted. Second, that the injury she suffered was impingement and subacromial bursitis and tendonitis of the biceps tendon. Third, that Ms Clark’s impairment consequences were at least “very considerable” such that she had sustained a “serious injury”.
152First, it was submitted on behalf of Ms Clark, that she should be accepted as a witness of truth. She gave evidence in a frank and unequivocal manner. Her credit was not successfully attacked, and the defendant could not say her honesty was seriously in question. There was no extraneous material relied upon by the defendant, such as video surveillance to attack the plaintiff’s credit. Further, although Mr Simm opined that Ms Clark had a Chronic Regional Pain Syndrome, there was no suggestion that Ms Clark was embellishing or fabricating her evidence. In those circumstances, Ms Clark’s evidence about her current level of pain should be accepted.
153Second, the injury suffered by Ms Clark was impingement and subacromial bursitis and tendonitis of the biceps tendon, which was the diagnosis of Dr Nguyen, the treating surgeon,[34] and also Mr Slattery.[35] Mr Simm did not address whether the bursitis was the justification for the surgery; Mr Slesenger did not discuss Ms Clark’s diagnosis and Mr Yong also did not come to a diagnosis. Ms Clark continued to see her treating surgeon over the two years following the initial diagnosis with ongoing problems. Eventually she required a second surgical procedure. The final word from the treating orthopaedic surgeon was three months after the second surgery when he observed that Ms Clark still had symptoms, such as pain with certain activities and movements, and rotator cuff weakness, but that they had plateaued. Ms Clark then travelled overseas.
[34] Exhibit A, p52
[35] Exhibit A, p100
154Later in 2019, Ms Clark consulted Ms Paoline Li, physiotherapist, with a history of ongoing problems of pain in her shoulder, aggravating activities such as lifting and reaching.[36]
[36] Exhibit A, p68
155In October 2019, the general practitioner referred Ms Clark to Dr Angela Chia, the pain physician.[37] He noted that she was on Panadol Osteo, Voltaren and Cymbalta. He recorded that Ms Clark continued to have ongoing pain in her shoulder despite regular physiotherapy, which kept her up at night.
[37] Exhibit A, p71
156In November 2019, the letter from pain physician, Dr Angela Chia,[38] noted that Ms Clark had persistent post-surgical pain. On examination, she had signs of hyperalgesia, allodynia and restricted range of movement. It was suggested that Ms Clark undergo a pain management program.
[38] Exhibit A, p72
157The plaintiff submitted that because there was no controversy in the medical evidence, no adverse inference could be drawn against Ms Clark about the failure to call evidence from medical witnesses in Chile. There had been four medical practitioners who had examined Ms Clark in the last four months who each had said she had an ongoing problem with her shoulder in relation to her work.
158Third, the impairment consequences for Ms Clark were “serious”:
(a) Ms Clark experiences daily pain which has not been ameliorated by two surgeries, kinesiology or medication which raises a prospect of a very considerable consequence. Reference was made to Kelso v Tatiara Meat Co Pty Ltd;[39]
(b) Ms Clark’s movement is restricted by pain of such a degree that she is limited in things like dressing and personal hygiene, domestic chores, and heavy chores like vacuuming;
(c) Ms Clark has disturbed sleep. Although she detailed a level of depression about being isolated in Chile, nevertheless she gave a cogent explanation of her disturbed sleep being caused by pain;
(d) Many of the activities which Ms Clark previously enjoyed such as caring for her nephews, basketball, dirt bike/motorbike riding, playing drums and guitar, have been lost;
(e) Ms Clark is restricted in her ability to pursue her hobby and possibly her vocation in photography. She has had to modify her photography to use a tripod;
(f) There is an inability to pursue employment of the same type as Ms Clark pursued before her injury which can be used as a quantitative measure of the significance of that employment to Ms Clark and to assess her degree of impairment;
(g) Ms Clark is now unable to undertake heavier pursuits like she had done in the past such as cleaning work, bar work, factory work or forklift driving.
[39] (supra) per Dodds-Streeton at paragraph [199]
159The defendant submitted that there were evidentiary issues and credit issues in the case which are insurmountable. First, there was a lack of evidence from a treating doctor over the past two years which resulted in a major evidentiary gap. Second, that Ms Clark was not a credible witness. Third, that the evidence as to the injuries sustained by Ms Clark did not support the fact that she had a “serious injury”.
160First, it was submitted that the application had to be determined at the date of the hearing and because there was a lack of evidence from a treating doctor for the past two years, there was a major evidentiary gap in Ms Clark’s case. This was notwithstanding that Ms Clark had been receiving medical treatment from a general practitioner, an orthopaedic surgeon and a kinesiologist in Chile. Further, there was no evidence of substance from the general practitioner in Australia who treated Ms Clark from 2016 until she went to South America. The defendant submitted that gap could not be filled by medico-legal reports.
161Second, Ms Clark was not a credible witness. There were gaps in Ms Clark’s first affidavit where she simply did not refer to her employment with Century City as a bar person and TAB worker. There was also nothing in the first affidavit about the Ahmad Engineering job, which, it was submitted, Ms Clark only explained she learned the defendant had material from the GoFundMe site and the Ranges Trader newspaper.
162Third, the evidence which was available as to any injuries sustained by Ms Clark, did not support the view that it was a serious injury. The only evidence from a treating doctor was from Dr Nguyen, the treating surgeon. It was to the effect that Ms Clark’s pain and range of movement had improved such that she returned to work in 2019. Dr Chia, pain medicine specialist, had suggested the necessity for a pain management course. Mr Simm said that the radiology was not relevant to Ms Clark’s pain. She had a Chronic Regional Pain Syndrome[40] and was capable of permanent employment.[41] Dr Yong diagnosed Ms Clark with a soft tissue injury complicated by psychological issues.
[40] Exhibit 1, p 42-43
[41] Exhibit 1, p 44-44
163Fourth, Ms Clark has an ability to work. She can continue to pursue her passions in language and teaching children, artistry and photography. She has also reskilled and can work as an English teacher, as an interpreter, as an educator or in administration.
What injuries did Ms Clark sustain?
Right shoulder injury – 2014
164Ms Clark said in her affidavit that she injured her right shoulder in 2014 at work.[42] She gave consistent accounts to various doctors.
[42] T10;L 28-30
165Mr Slattery noted that an ultrasound dated 5 December 2014 suggested tenosynovitis and a slightly thickened subacromial/subdeltoid bursa, suggesting mild bursitis. Ms Clark said she made a full recovery approximately one month following the injury with non-operative treatment.
166Dr Slesenger also identified Ms Clark’s past medical history as including a previous right shoulder injury while handling a bottle of detergent. He recorded that her symptoms had resolved.
167Mr Simm noted a history of a right shoulder injury which Ms Clark said occurred in 2014 when she lifted a 12-kilogram bottle. Ms Clark had a few days off work and then returned to light duties. She was treated with physiotherapy and anti-inflammatory medication. Her shoulder was investigated with an ultrasound, and bursitis was diagnosed. She told Mr Simm that her shoulder fully recovered.
168Similarly, Ms Clark told Dr Yong that she had a previous right shoulder injury in 2014 when she was handling a 10-12-kilogram bottle. She said she had some anti-inflammatory medication for one to two weeks and then returned to her normal duties and hours. She stated that the injury had fully resolved.
169Dr Jager, Dr Weissman, Associate Professor Damodaran, Dr Krapivensky, and Dr Doig did not express any opinion about the previous right shoulder injury in 2014.
170Having considered the evidence, I am satisfied, on the balance of probabilities, that Ms Clark sustained a previous bursitis injury to her right shoulder in 2014 from which she fully recovered, at least to the point where the injury was asymptomatic. I find that the symptoms of any pre-existing right shoulder injury had fully resolved immediately prior to Ms Clark injuring her right shoulder on 7 October 2016.
Right shoulder injury – 7 October 2016
171There was no dispute between the parties that Ms Clark sustained an injury on 7 October 2016. The dispute was as to the nature of that injury.
172Mr Nguyen’s operation report of 10 October 2018 noted that the findings of Ms Clark’s second right shoulder decompression operation were that the subacromial bursa was “very thickened, scarring and inflamed. There was a remnant of the mobile os-acrominale (sic). The AC joint had severe synovitis inside”. Further, following the operation, Ms Clark had continued to have persistent shoulder problems with pain and weakness.
173Mr Slattery noted Ms Clark had tenderness to palpation over the acromioclavicular joint and over the subdeltoid bursa, and that she had pain and discomfort at the extremes of range of motion. He opined that Ms Clark had right shoulder subacromial bursitis and biceps tendinitis with chronic recalcitrant symptoms despite two shoulder operations, injections and extensive physiotherapy.
174Although Mr Doig diagnosed a soft-tissue injury to Ms Clark’s dominant right shoulder, he also noted the presence of subacromial bursitis and impingement which was causing Ms Clark ongoing pain and restriction.
175Mr Simm considered that there were “minor subacromial changes” on the original MRI scan and observed that Mr Richardson had also noted findings consistent with right shoulder subacromial impingement. However, without explaining why he reached this conclusion, Mr Simm considered that the physical condition was associated with, and to some extent, was being overtaken by, a chronic adverse pain reaction and that Ms Clark had a Ms Clark had a Chronic Regional Pain Syndrome. Further, that the minor nature of the injury was such that it was most unlikely that the injury resulted in traumatic damage to the shoulder and the subsequent investigations did not demonstrate evidence of traumatic injury. Mr Simm’s diagnosis did not provide any explanation for the “exquisite unexplained soft tissue tenderness” which Ms Clark continued to experience.
176Notwithstanding Mr Simm’s conclusion that Ms Clark has a Chronic Regional Pain Syndrome, each of Mr Nguyen and Mr Slattery, as well as Mr Richardson, accepted that Ms Clark had subacromial changes or impingement on her original MRI scan. From Mr Nguyen’s operation report it is also apparent that Ms Clark’s AC joint had severe synovitis inside.
177In my view, on the balance of probabilities, Ms Clark suffers from impingement and subacromial bursitis and tendonitis of the biceps tendon as well as synovitis inside the AC joint.
Credibility
178Ms Clark’s credit was challenged on various grounds. First, it was submitted that Ms Clark’s work history was incomplete in her first affidavit. Second, Ms Clark was questioned about matters which it was suggested had been omitted from her first affidavit. These included reference to her employment with Almad Engineering, and her consultation with Dr Krapivensky, a Ranges Trader news article and a GoFundMe page. Third, Ms Clark was cross-examined about discrepancies in the alcohol intake she reported to various doctors.
179Ms Clark was first cross-examined about the work history she gave in her affidavit in which she said that she commenced part-time employment working as a bar and gaming attendant at the Dorset Gardens Hotel and that she did not work there long as the bar work caused an aggravation of her symptoms. It was submitted that she did not refer to also working at City Century, a nightclub in Glen Waverley. It was submitted that these were gaps, or credit issues, which were insurmountable.
180When cross-examined about working at City Century nightclub, Ms Clark immediately accepted that she was working at City Century and the Dorset Gardens Hotel between 6 June 2017 and 14 January 2018.[43] She said she believed that she left the job with City Century and went to the Dorset Gardens Hotel in 2018,[44] later saying that she was working at the Dorset Gardens Hotel from July 2018 to October 2018.[45]
[43] T14, L29 – T15, L17
[44] T15, L6-17
[45] T16, L7-9
181It was not directly put to Ms Clark that she had deliberately omitted reference to working at the City Century nightclub. Having had the opportunity to observe Ms Clark give evidence, I do not believe she did so. Ms Clark struck me as an honest and reliable witness. She gave her evidence in a straightforward manner and did not try to avoid answering questions about her employment. I do not consider that this evidence impacted her credit in any way.
182Similarly, I find that nothing turns on Ms Clark’s failure to mention doing voluntary mentoring work with the Australian Indigenous Mentoring Experience.
183Second, Ms Clark was cross-examined about her employment with Almad Engineering and in particular her LinkedIn page which stated that she had worked for Almad Engineering full time for ten months as a business administrator and interpreter. Ms Clark explained that when she was employed by Almad Engineering, the company had asked her to create a LinkedIn page. She had done that. Ms Clark was asked:
Q: “And in LinkedIn you’ve described yourself as a business administrator and interpreter; is that what you actually did with that organisation?---
A: No, I created that – they wanted me to have a LinkedIn to start – start my personality – my – my personal page on LinkedIn, but no, I was – I was going to be a bilingual translator but for their documents that came in from overseas, work manuals, things like that.”[46]
[46] T17, L5-12
184Ms Clark said she had begun work as a translator translating work manuals and other documents from overseas and had worked for a few days. However, the job had never evolved into a full-time job because of the onset of the COVID-19 pandemic. Ms Clark said that the owner of the business had to get rid of fourteen staff and was only able to keep essential workers. She was not an essential worker and so was not kept on.[47] Ms Clark said that she did not disclose her work with Almad Engineering on her WorkCover certificates because she was only paid once by Almad. She only did one job and did not have full-time work with Almad.[48] In my view, her explanation was reasonable.
[47] T16, L26 – T17, L25
[48] T18, L25-29
185The defendant suggested that it was only after Ms Clark became aware that the defendant had evidence about a GoFundMe page which had been set up to raise money to assist her to come home from Chile after the COVID-19 pandemic restrictions were introduced[49] and which referred to an application made by Ms Clark for a work visa in Chile, that Ms Clark made mention of her employment with Almad Engineering in her supplementary affidavit.
[49] Exhibit 1, p116-117
186Similarly, Ms Clark was cross-examined about a discussion she had with Dr Krapivensky in October 2021 in which she said she had made an application for a work visa,[50] about a Ranges Trader news article which said she had applied for a work visa[51] and about commencing study in October 2021 to teach English as a foreign language. Ms Clark accepted that she applied for a work visa.[52] She said the application is still pending. She paid an initial amount of $2,000 towards the total cost of the visa; however, the remaining $3,000 was not paid because the immigration office in Chile closed down due to the COVID-19 pandemic.[53]
[50] Exhibit 1, p69
[51] T21, L19-21
[52] T19, L1-27
[53] T20, L1-25
187In my view, nothing turns on the fact that these matters were not referred to in Ms Clark’s original affidavit. Ms Clark is stranded in Chile due to circumstances beyond her control. She said she initially worked five hours a day minding a child while his parents were at work, in exchange for food and board.[54] Her AUSTUDY allowance had been cancelled[55] because she was not studying in Australia, and she had received only a $1,500 hardship allowance from Deakin University.[56] In my view, none of that evidence impeaches Ms Clark’s credit.
[54] T21, L2-18
[55] T21, L22-25
[56] T21, L26-27
188Third, Ms Clark was cross-examined about discrepancies in the alcohol intake she reported to various doctors. Ms Clark accepted that she was treated in Chile for a variety of stressors including excessive alcohol intake.[57] However, she explained that she had an alcohol problem before she left Australia. It was not something that had developed while she was in Chile.[58]
[57] T24, L7-28
[58] T24, L29 – T25, L2
189Ms Clark accepted that on 8 October 2020, she told Mr Slattery that she drinks one to two standard drinks a day.[59] It was then put to Ms Clark that she told Dr Weissman that she drank four to six drinks per day.[60] She thought that was probably an understatement.[61] Similarly, she agreed that she told Dr Slesenger that she was having six drinks a day[62] and Dr Yong, four to eight glasses per day.[63]
[59] Exhibit A, p86
[60] Exhibit A, p124
[61] T25, L9 - 13
[62] Exhibit A, p112
[63] Exhibit b, p55
190Ms Clark explained that her problem with alcohol developed after her first surgery. She said she started drinking to help her sleep because she was not taking medication to sleep at that time. She explained that her physical and mental health have been impacted by her injury and drinking is her drug of choice.[64]
[64] T25, L3 – T26, L2
191It is true that the precise number of drinks Ms Clark has each day differed in the histories given to each of the doctors; however, in my view, this does not mean that Ms Clark was not a credible witness. Ms Clark’s injury occurred over five years ago. It is to be expected that her alcohol consumption will have varied from day-to-day. It is also to be expected that it would be affected by Ms Clark’s level of pain. Further, Ms Clark said in cross-examination that she has spoken to her psychiatrists at different times and that she was in the process of cutting down on alcohol. This too, would impact her alcohol intake on a given day and indeed Ms Clark said that her alcohol consumption varied.[65] Most importantly though, for an assessment of credit, is the fact that Ms Clark was consistent in maintaining that she has a longstanding drinking problem which began while she was in Australia. She did not attempt to divert attention from that fact. For that reason, I do not consider that inconsistencies in the medical histories provided to the doctors impact upon her credit.
[65] T25, L9-18
192Overall, I find that Ms Clark was a credible witness.
Is the right shoulder injury suffered on 7 October 2016 a “serious injury”?
Pain and suffering consequences
193I have found that Ms Clark sustained an injury to her right shoulder in 2014 which was asymptomatic immediately prior to her subsequent injury on 7 October 2016. Consequently, there were no impairment consequences of the 2014 right shoulder injury which were still operative immediately before 7 October 2016.
194The assessment of “serious injury” must be made at the time that the application is heard by the Court in accordance with s325(2)(j) of the Act. It is necessary that I make an assessment of Ms Clark’s current impairment consequences.
195In her affidavits and evidence, Ms Clark described the consequences of the right shoulder injury to her. She detailed several consequences.
Pain
196In her first affidavit, Ms Clark described experiencing constant pain which fluctuates in intensity depending on her level of activity. She said she experiences shooting pain down her arm and into her hand. It feels like pins and needles in her arm. The severity of the pain she described as 6 to 7 out of 10 on most days, but if she aggravated the pain, it became excruciating. She said she had learned to modify her movements to avoid aggravating the pain. For instance, she said in cross-examination that “I gave up that job [at the Dorset Gardens Hotel] because I was in a lot of pain”.[66]
[66] T15, L18-22
197In her second affidavit, Ms Clark confirmed that she continued to experience ongoing pain and restriction in her right shoulder. She said the pain varied in intensity from 5 out of 10 at rest to 10 out of 10 when her pain is aggravated. The extreme flareups were said to occur approximately twice a week.
198The pain is primarily focused on Ms Clark’s front right shoulder, although there is pain at the top and side of the shoulder and radiating pain down into her right arm. Ms Clark continued to experience pins and needles in her right arm and hand.
199Ms Clark also continues to experience significant reductions in mobility and range of movement of her right shoulder. She struggles to reach the back of her head and has significant difficulty reaching things overhead with her right arm. If she does try to use her right arm, it tremors, and she experiences a “crunching feeling” in her right shoulder when she moves it. She continues to experience significant weakness in her right arm and reduced grip strength in her right hand.
Sleep
200Ms Clark said in her first affidavit that her injuries had affected her sleep. She described getting to sleep as being particularly difficult. She said she often woke in the night in pain. She was careful not to roll onto her right shoulder and had to put a pillow under it.
201In her second affidavit, Ms Clark confirmed that her sleep continues to be disrupted at night be her right shoulder pain. It remains particularly troublesome if she rolls onto her right side at night. In re-examination, she said her shoulder gives her pins and needles. She is in a lot of pain and her shoulder can be numb.
202At night her shoulder wakes her up. She uses a long body pillow to prop up her right side, but because there is something leaning on her right shoulder, there is pressure and ongoing pain, and she wakes up and does not get a solid night’s sleep every night. Her broken sleep pattern often leaves her tired and unable to concentrate the following day.
203Ms Clark was cross-examined about the impact of her psychological problems on her sleep. She said that her psychological problems do not impact her sleep. When asked whether she had lain awake at night worrying about the COVID-19 pandemic, she quite reasonably said, “[h]asn’t everyone lied awake in the past few months – past few years worrying about Covid?” She accepted that her sleep issues were brought about by a combination of her shoulder pain and the worries of her personal situation.
204Ms Clark said that she takes sleeping medication called Zonix which she purchases from the pharmacy without a script.
Medication
205In her first affidavit, Ms Clark described taking Oxycodone and pregabalin if her pain flared up. She said that was usually two to three times per week. Ms Clark said she did not like how heavy analgesic medication made her feel. Ms Clark said she continues to see a general practitioner and in 2020, had an MRI scan on her right shoulder. She said she is never free of right shoulder pain. She takes pregabalin, 75 milligrams per day, Celebrex twice a day and ibuprofen. She also takes zopiclone medication to help her sleep. She takes medication for reflux and Sertraline for psychiatric wellbeing.
206In cross-examination, she said she takes quite a bit of medication. Most is prescribed by her general practitioner and treating orthopaedic surgeon, as well as her psychiatrists in Santiago, although some had previously been prescribed by her doctor at Belgrave Medical Centre including medication for pain for physical injury. In re-examination, she explained that when she was in Australia, she was using Endone and Oxycontin. She does not use that medication in Chile because she does not have a prescription, but she uses other pain medications. She said her pain medication has now doubled because of the ongoing pain. She said, “I am never free of pain”.
Activities of daily living
207Ms Clark has difficulty with activities of daily living. She said that she is now reliant on her non-dominant hand to do tasks such as opening doors. She has trouble lifting a kettle off the stove. She requires assistance with domestic chores around the house. She struggles with heavy lifting or repetitive movements such as vacuuming or preparing meals. Ms Clark has trouble repeatedly chopping vegetables, opening jars and lifting heavy pots and pans. Buttering toast is very difficult now. She cannot do heavier cleaning tasks such as changing and washing bedlinen. The chores she does take longer than they once did to complete. She said she was having trouble completing the grocery shopping and so now she and her housemates have groceries delivered to their home.
208In cross-examination, Ms Clark said she has a cleaner who comes in once a week, the cost of which she shares with her flatmates. She does a limited amount of cooking and laundry herself. In re-examination, she said her cooking is limited. She cannot crush spices when cooking because of the pressure it puts on her right shoulder. She has difficulty chopping vegetables. She cannot bone fish. Her participation in laundry is limited. She struggles with the motion of pulling clothes from the washing machine. She will only wash socks, underwear and light things. The heavier things she leaves to the cleaner.
Personal care
209In her first affidavit, Ms Clark said that she relies upon her non-dominant hand to clean her teeth. Her use of her right arm for personal grooming is restricted. She finds getting dressed to be difficult as it strains her shoulder. She struggles with putting a bra on and getting into jeans, long pants and skirts.
210In her second affidavit, Ms Clark stated that the reduced mobility in her right arm means that she relies on her left arm for showering and washing her hair. She continues to experience trouble dressing and sometimes needs assistance from her flatmate to do up her sports bra. She said she is embarrassed as she has now started using maternity bras that fasten at the front rather than the back. She continues to struggle getting into tight fitting clothes like jeans and hoodies.
211In cross-examination, she said she cannot wash her hair.[67] Other than that, she can use her left hand to wash herself, go to the toilet and brush her teeth.
[67] T28, L1-8
Social interaction
212Ms Clark said she struggled to care for and play with her three nephews. When asked about social activities in cross-examination, Ms Clark said “I don’t do anything social”.
Sports
213In her first affidavit, Ms Clark said that she can no longer play basketball and other sports. She has to be careful with her movements in case of a flare up of pain. In cross-examination, she said that she last played basketball in 2015.
Photography
214She can no longer carry a camera bag and finds it difficult to manage the camera because of the large lenses. She ceased doing part-time work at weddings. She said in her second affidavit, that she realises that she will not be able to pursue a career in photography. She said that she has lost her love of photography because it causes pain. She said:
“Your Honour, I - I’m in pain sitting here doing nothing. I can’t lift my lenses up, I can’t lift a backpack up, I can’t lift my camera, anything up to my face without me shaking. I – anything heavier than a coffee cup my hand trembles”.[68]
[68] T36; L8-12
Hobbies
215In her first affidavit, Ms Clark said that she can also no longer play the drums or guitar. She expanded on this in cross-examination and said that the guitar is too big for her. There is constant clicking in the nerves in her shoulder and in her muscles, and each click causes pain.
216She also said in cross-examination that she used to play the drums. She still has a drum kit at home. She has not played the drums for five to six years. She said she tried to go back to playing the drums after her first shoulder surgery, but her injury was impacting her shoulder. She gave her drum kit to her nephew.
217She also cannot work on restoring old cars.
218In her second affidavit, she said that as a result of her right shoulder injury, her ability to write, draw and sketch has been significantly curtailed. This saddens Ms Clark because she feels like her creativity has been stifled. She is an artistic woman and has had difficulty using her right arm for painting and drawing. She must now use a tripod for her camera
Driving
219Ms Clark says that she does not own a car in Santiago and catches public transport. On public transport, holding on with her left hand leaves her feeling unbalanced. If she is in a car, the gearbox is on the right so changing gears is very difficult. Steering on sharp corners or in the mountains hurts and aggravates Ms Clark’s pain.
Bike riding
220Ms Clark said that she has started riding a bike. She said she does not go far, but if she needs to get medication or to buy a loaf of bread, she can do that without getting onto public transport which she said she avoids because people have to stand, and everyone holds each other.
Pre-injury employment
221Ms Clark has lost the ability to perform manual work like what she was doing before she was injured.
222In assessing the consequences of the injury, I am required to consider the consequences to this plaintiff, viewed objectively. Ms Clark made clear that the consequences to her were subjectively “very considerable”. She said that her right shoulder injury has had “a significant impact on my life”. She has substantial daily pain fluctuating in intensity from 5 out of 10 to 10 out of 10 depending on Ms Clark’s level of activity. The pain is experienced as a shooting pain down Ms Clark’s arm and into her hand. It feels like pins and needles in her arm. The pain is primarily focused on Ms Clark’s front right shoulder.
223Ms Clark has a significant degree of restriction of movement. If Ms Clark tries to use her right arm overhead or to reach behind her back, it tremors, and she experiences a “crunching feeling” in her right shoulder when she moves it.
224She has difficulty sleeping. There is pressure and ongoing pain, and she wakes up and does not get a solid night’s sleep every night.
225Ms Clark experiences difficulties in performing her activities of daily living and in undertaking her personal care.
226She has lost the ability to participate in some sports and hobbies such as playing the guitar and the drums, to play basketball, to do photography, to restore old cars and to perform her pre-injury employment duties.
227When all of the evidence is considered and looked at in combination, together with the medical evidence discussed and Ms Clark’s impairment consequences are considered objectively, in my view, Ms Clark’s right shoulder injury produces impairment consequences which are at least “significant and marked” and at least “very considerable”. I therefore find that Ms Clark has suffered a “serious injury”.
Are the pain and suffering consequences permanent?
228Mr Slattery opined that Ms Clark’s prognosis was guarded. She has chronic recalcitrant symptoms despite two shoulder operations, injections and extensive physiotherapy and her incapacity would likely be permanent.
229Dr Slesenger was of the opinion that Ms Clark’s capacity for employment had been affected. He did not anticipate her being able to return to work with his suggested restrictions in place and said that her work as a photographer would be impacted by manual handling and postural demands associated with the role. He did not specifically opine about the permanence of her impairment.
230Mr Doig diagnosed a soft-tissue injury to Ms Clark’s dominant right shoulder with subacromial bursitis and impingement. He said that she had experienced a poor outcome following her surgeries, with ongoing pain and restriction. His opinion was that her condition had reached maximum medical improvement as per the definition in the AMA4 Guides, and her prognosis was guarded with respect to returning to pre-injury employment.
231Mr Simm considered that Ms Clark had exquisite unexplained soft tissue tenderness and a Chronic Regional Pain Syndrome which would continue for an indefinite time. He said that she could return to non-physical work full time.
232Dr Yong also recorded that Ms Clark was not capable of undertaking her pre-injury employment. She was capable of undertaking tasks that did not involve duties using her right arm above her shoulder or reaching. He considered her prognosis for full recovery was guarded.
233Having considered all of the evidence, I am satisfied that the guarded prognosis, in conjunction with the longevity of Ms Clark’s condition, tend to suggest that her right shoulder condition will not improve. I also note that Ms Clark has already had two surgeries and still has persistent pain. I am satisfied that Ms Clark’s impairment will continue into the foreseeable future and is consequently permanent.
Disentangling
234The defendant submitted that it was necessary for me to disentangle Ms Clark’s claimed impairment consequences and any symptoms or consequences now affecting her which result from non-organic pain/psychological factors which were present immediately before 7 October 2016.
235In light of the evidence of Dr Nguyen and specifically the findings set out in his operation report on 10 October 2018, as well as the evidence of Ms Slattery, I consider that there is a substantial organic basis for the relevant consequences relied upon. It is therefore unnecessary for me to undertake the second step in the Meadows[69] analysis and seek to disentangle the physical contribution to the pain from any psychological contribution.
[69] Meadows (supra)
236Had I been required to do so, however, the conclusion I have reached would have remained the same. I consider that a very substantial part of Ms Clark’s pain emanates from her shoulder injury. It impacts her sleep. It requires her to take pain-relieving medication. It infiltrates most parts of her daily life and her personal care. It has detrimentally impacted upon her recreation and hobbies such as guitar playing. In my view, her pain and suffering consequences are still “serious”.
Conclusion
237I find Ms Clark has suffered a serious injury to her right shoulder.
238Accordingly, leave shall be granted to her to commence a proceeding for pain and suffering damages.
239I will hear argument with respect to costs.
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