Cosic v Berkeley Apparel Pty Ltd
[2011] VCC 284
•4 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01446
| ANA COSIC | Plaintiff |
| v | |
| BERKELEY APPAREL PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16, 17 and 18 February 2011 |
| DATE OF JUDGMENT: | 4 March 2011 |
| CASE MAY BE CITED AS: | Cosic v Berkeley Apparel Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 284 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985; Section 134AB(38)(c) – injury to the right shoulder – constellation of other injuries and ailments – whether impairment of the right shoulder resulted in pain and suffering and loss of earning capacity consequences – Dressing v Porter [2006] VSCA 215.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R Forbes | Galbally & O’Brien |
| For the Defendant | Ms R Annesley | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 1 December 2009, by which the plaintiff applies for leave, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Ms J Forbes of Counsel appeared for the plaintiff and Ms R Annesley of Counsel appeared the defendant
4 The body function which the plaintiff says has been lost or impaired is the right upper limb.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • Dr Horvat, general practitioner, gave evidence and was cross-examined. • Mr Ivan Cosic gave evidence and was cross-examined. •
The plaintiff tendered her Court Book (“PCB”): pages 1-6; 13-34; 38-47; 67(a)-136, and146-190: Exhibit A.
•
The defendant tendered it is Court Book (“DCB”), pages 25-131 and 155-199, and from the plaintiff’s Court Book, pages 48-67 and 137-145: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her of employment on or after 20 October 1999;[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by sub-s.(19)(a), sub-s.(19)(b) and sub-s.(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g)
Sub-sections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined;
(h)
Sub-section (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(i)
Sub-section (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application;
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: See Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11.
[2] Barwon Spinners, at paragraph 33.
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] [1994] 1 VR 436
8 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Injury
9 The plaintiff was born on 27 November 1948 in Croatia. She is a married woman. Her schooling was modest. She completed eight years of schooling in Croatia, leaving school when she was fifteen years of age. She subsequently obtained some modest training as a sewing machinist, and otherwise worked on the family farm and undertook domestic duties for the family.
10 The plaintiff was employed as a quality controller with the defendant. She described the tasks which she was required to perform as follows:
“This job required me to check trousers and cut cotton from them, trim stitches, sew cuffs onto the bottom of trousers when required, iron them and then put them back on the line.
My duties were very repetitive. Initially I would iron, press and pack up to 100 pairs of men’s trousers per day but gradually my workload increased to up to 160 pairs of men’s trousers per day which required a lot of repetitive movements. The iron I used to press the trousers weighed approximately 2 kilograms and I gradually developed pain in my right shoulder and right arm and later I developed pain in my neck and left shoulder as well.”[5]
[5] PCB 14-15
11 As a result of constantly having to bend over a bench in order to undertake the work just described, the plaintiff developed pain in her neck, head and right shoulder. She said that she made a claim in December 2001. She said that she was treated by Dr Levar, general practitioner, who prescribed her Voltaren and Voltaren gel. She said she was given one week off work.
12 Ms Annesley cross-examined the plaintiff regarding the foregoing. It became clear during her examination of the plaintiff that the plaintiff did not see Dr Levar in 2001 for treatment for the injuries she says she sustained in the latter part of 2001.
13 The first entry in Dr Levar’s clinical notes of any injury consistent with those which the plaintiff suffered in the latter part of 2001 is referenced to a complaint of neck pain made on 22 March 2001.[6]
[6] PCB 124
14 Despite cross-examination on that topic, I understood that the plaintiff’s case was based entirely on what she had opposed to in her first affidavit:
“In or about early 2003 I also complained again to the foreman, ‘Katie’, and the manager, ‘Lucy’, that I was getting sore hands and a sore shoulder because of the work I was doing which included lifting a heavy iron without having to stand…
… I continued working until 25 July, 2003 when I was forced to stop working because I was in great pain in my right shoulder, neck and both hands … .”[7]
[7] PCB 16
15 It was following the onset of pain in 2003 that the plaintiff then suffered the onset of pain in her right shoulder for which he obtained a significant amount of treatment from a number of medical practitioners.
The Plaintiff’s Medical Treatment
16 In a report dated 27 August 2003,[8] Dr Levar recorded that the plaintiff saw her in November 2002 complaining of pain in her right hand, extending into her first and second fingers. The pain settled.
[8] PCB 80
17 The next occasion of relevance when the plaintiff saw Dr Levar was 25 July 2003. Dr Levar recorded that the plaintiff complained to her that over the preceding eight months she was ironing trousers with a heavy iron which led to the gradual development of pain in her right and left shoulders.
18 The latter complaint led to Dr Levar referring the plaintiff to undergo a number of investigations. Dr Levar initially treated the plaintiff by putting her off work. She prescribed the plaintiff Panadeine Forte and Mobic for pain relief.
19 Dr Levar then referred the plaintiff to have an x-ray of her cervical spine and an x-ray and an ultrasound of the right shoulder. According to the radiologist, the ultrasound disclosed subacromial bursitis in the right shoulder.[9]
[9] PCB 81 and 160
20 Dr Levar also referred the plaintiff to Dr Freilich, neurologist, who performed nerve conduction studies on 5 September 2003. They disclosed that the plaintiff was suffering from bilateral carpal tunnel syndrome which was worse on the right side.
21 The plaintiff was referred to Mr Lucas, plastic surgeon. He recommended that the plaintiff have a release of her right carpal tunnel. She underwent surgical release of her right carpal tunnel on 2 April 2004. Mr Lucas was of the opinion that the surgery was successful in relieving the symptoms experienced by the plaintiff.[10]
[10] PCB 136
22 The plaintiff saw Dr Levar in February 2004 and complained of suffering an exacerbation of pain in her right shoulder. Dr Levar then referred the plaintiff to Mr Lynch, orthopaedic surgeon, for an opinion regarding the condition of her right shoulder.
23 By the time the plaintiff first saw Mr Lynch, on 12 March 2004, she had undergone treatment recommended by Dr Levar in the form of physiotherapy, acupuncture and the use of medication. Mr Lynch was aware of the plaintiff’s treatment, and it would appear that he viewed the plain x-rays of the plaintiff’s cervical spine. It would appear that he considered that the plaintiff was suffering from cervical spondylosis.
24 The treatment provided by Mr Lucas and Mr Lynch occurred at around the same time. Mr Lucas referred to Mr Lynch’s involvement in his report dated 1 October 2004, and to Mr Lynch’s advice that the plaintiff sees a neurosurgeon for an opinion regarding the condition of her cervical spine.[11]
[11] PCB 135-136
25 Dr Levar referred the plaintiff to Mr Jensen, neurosurgeon. He first saw her on 8 July 2004. He noted that she was complaining of pain running down the length of her right arm from her neck. Mr Jensen was of the opinion that the plaintiff’s main problem lay in her right shoulder girdle region, and that she did not have a neuro-surgical condition, as he put it. I infer that means that he disagreed with Mr Lynch that the pain experienced by the plaintiff in her right shoulder and arm were due to a condition emanating from her cervical spine.[12]
[12] PCB 139-141
26 Dr Levar then referred the plaintiff to Mr Clifford, orthopaedic surgeon. He first saw her on 9 August 2004. He recorded a history that plaintiff had suffered pain in her right shoulder due to using a heavy iron. He was aware that she had seen Mr Jensen and that she had undergone a carpal tunnel release on the right side.
27 Mr Clifford referred the plaintiff to have a hydro-dilatation to treat adhesive capsulitis. The plaintiff underwent the procedure on 23 September 2001. When she was reviewed by Mr Clifford, she told him that she had not experienced any significant improvement.
28 Mr Clifford advised the plaintiff to undergo an arthroscopy of her right shoulder. She underwent the procedure on 25 January 2005. It is significant that Mr Clifford made the following findings:
“The shoulder showed significant scarring within the joint and some
synovitis in that area.”
29 Mr Clifford referred the plaintiff to have physiotherapy because post- operatively and after a further hydro-dilatation, on 3 June 2005, she had a limited range of movement. He was of the opinion that the plaintiff was suffering from secondary adhesive capsulitis, or a frozen shoulder, which he considered would require continuing mobilisation. He considered that the plaintiff’s pain would improve, as well as her range of movement.[13]
[13] PCB 129-130
30 On the last occasion Mr Clifford saw the plaintiff, in April 2006, he noted that her pain was unresolved and that she continued to complain of symptoms in her neck, shoulder and elbow. He then said that her right shoulder remained considerably stiffened with adhesive capsulitis and that she had an ongoing disability in that region which would impair her capacity for work.
31 Mr Clifford then concluded with a rather curious remark. Having operated and found scarring in the joint and synovitis, he said that the adhesive capsulitis was secondary to the plaintiff’s problems with her cervical spine. I assume that is an error on his part, because he did not treat the plaintiff’s cervical spine at any stage. The reference to the connection between the adhesive capsulitis in the plaintiff’s cervical spine must be read to be secondary to the condition of the plaintiff’s right shoulder.[14]
[14] PCB 131
32 The plaintiff saw Dr Horvat, general practitioner, in February 2006. He took over the medical management of the plaintiff’s injuries from that time on, and he continues to treat the plaintiff. [15]
[15] Dr Horvat had previously treated the plaintiff at a different clinic. He was provided with a copy of the clinical notes he made between 2001 and 2004 (Transcript 55-56). He subsequently moved to another practice and did not see the plaintiff again until February 2006.
33 The plaintiff told Dr Horvat that she had suffered an injury to her right shoulder, and indeed, on the first occasion she saw him she told him that she was suffering from significant symptoms in her right shoulder and neck.
34 Dr Horvat referred the plaintiff to have an MRI scan which was taken on 17 February 2006.[16] The radiologist was of the opinion that it showed that there was an under surface tear of the supraspinatus tendon. Dr Horvat agreed with the radiologist’s conclusion.
[16] PCB 164
35 Dr Horvat referred the plaintiff to Dr Laska, rheumatologist, [17] and then to Mr Pullen, orthopaedic surgeon. The plaintiff first saw Mr Pullen on 6 September 2006.
[17] No report was obtained from Dr Laska
36 Mr Pullen was of the opinion that the plaintiff was suffering from chronic right shoulder pain and that her symptoms were consistent with a Chronic Pain Syndrome. He recommended that she seek treatment from a pain management specialist. Although his primary diagnosis was right shoulder pain, he considered that some of the symptoms she was experiencing in her right upper limb might be related to her neck and perhaps to some nerve irritation.[18]
[18] PCB 74-75
37 Dr Horvat agreed with the opinion expressed by Dr Pullen. In a lengthy report dated 4 February 2009, he expressed the opinion that the plaintiff had suffered an organic injury to her right shoulder, resulting in a frozen shoulder and significant shoulder impingement. He was also of the opinion that the plaintiff’s recovery was complicated by the development of a Regional Pain Syndrome which he considered had an organic basis.[19]
[19] PCB 45. He pleaded that equally lengthy report dated 11 February 2011 (at PCB 67a-67d)
38 Dr Horvat gave evidence and was cross-examined. It was my strong impression from his oral evidence that he did not depart from the opinion expressed in that report. It was also my strong impression that Dr Horvat did not consider that his use of the expression Regional Pain Syndrome necessarily imported a psychological/psychiatric component:
“Q: Can you explain to his Honour what you meant by Regional Pain
Syndrome?---A:
Regional Pain Syndrome is a condition where someone has chronic pain some times quite distant to the original site, it can affect the entire region, can affect an area along (indistinct). We some times can't explain why it occurs, it just does. Sometimes it occurs after surgery, it's just a chronic persistent pain and rather than staying in one region it can escalate to affect an entire limb, an entire region: neck, shoulder, shoulder girdle.
Q: And to use the word ‘chronic’ is longstanding?--- A: Yes, longstanding.” [20] [20] Transcript 66
39 Dr Horvat did not depart from his opinion that there was an organic basis in the complaints made by the plaintiff. He explained the basis for that opinion in the following way:
“Q: Yes. Doctor, in your report of 4 February 2009, your diagnosis of
her organic injury is a frozen shoulder - page 3 of that report?---A: Page 45, yes. Q: See paragraph 6?--- A: She had two hydrodilatations and that's generally used to treat
frozen shoulder.Q: And that's the organic injury that you have diagnosed, frozen
shoulder?---A: Well, it would have been if you had hydrodilatations. Q: And that frozen shoulder comes as a result of inability to move
because of pain?---A: Restriction in movement and the capsule tends to tighten up. Q:
You would have expected, would you not, to have that frozen shoulder condition relieved by the hydrodilatation …and if that fails the surgeons usually go in and do an EUA and do a manipulation under anaesthetic so she would have probably have had a manipulation as well at the time. And you say her recovery has been complicated by her Regional Pain Syndrome?---
A: Yes. Q: And that's her current presentation, isn't it, that it's continuation of
chronic pain?---A:
She's got chronic pain, she's had a tear to her supraspinatus, she's had bursitis, she's had hydro-dilatation, she's had frozen shoulder, and she’s had a decompression done.
Q: Those things are all designed to relieve any physical condition,
though, that she would have had?---A: Yes. Q: And you would have expected that to have occurred given the
nature of the injury that she had to her right shoulder? ---A: What would have occurred, sorry? Q: The organic component of the injury would have been resolved? A: It would have been nice if it had settled, yes. Q: And her complication is as a result of her pain syndrome, not as
result of the organic component?A: I believe there is still an organic component to her shoulder
problem.” [21]
[21] Transcript 69-70
40 The foregoing evidence is a very good description of the nature of the plaintiff’s injury, the treatment she has undergone, the working diagnosis of the injury and the way in which her symptoms are manifesting themselves. I found the evidence given by Dr Horvat to be both very impressive and persuasive.
41 Dr Horvat said that there had not been any change in the plaintiff’s complaints of pain over the period he treated her for the injury to her right shoulder.[22] He presently prescribes the plaintiff Panadeine Forte, Mobic and Lyrica. Panadeine Forte is a strong analgesic, Mobic is an anti-inflammatory, and Lyrica is used to treat chronic pain and neuropathic pain. [23]
[22] Transcript 67
[23] Transcript 73. However, his evidence regarding whether he is actually prescribing Lyrica was equivocal
The Other Medical Evidence
42 Mr Deacon, orthopaedic surgeon, examined the plaintiff on 30 August 2010. He was provided with a large quantity of medical reports and radiology which appear to me to be fairly complete and would no doubt have put him in the picture of the plaintiff’s history of the occurrence of the injury to her right shoulder and the treatment she has been provided over the years.
43 Mr Deacon was of the opinion that the plaintiff suffered chronic tendinitis; subacromial bursitis; adhesive capsulitis, and tearing of the supraspinatus tendon as a consequence of the work she performed with the defendant.[24]
[24] PCB 157
44 Dr Symington, neurologist, examined the plaintiff on 4 December 2003. He was of the opinion that the plaintiff symptoms in her neck, right shoulder and arm were due to cervical spondylosis.[25]
[25] PCB 144
45 The defendant had the plaintiff examined by ten medical practitioners from varying disciplines in medicine. Ms Annesley placed more reliance upon the opinions of Associate Professor Balla, neurologist, and Mr O’Brien, orthopaedic surgeon. However, I will briefly refer to the other medical practitioners’ opinions.
46 Dr Silver, occupational physician, examined the plaintiff on 20 August 2003. He was of the opinion that the plaintiff had suffered an injury to her right shoulder as a result of her work with the defendant. [26] Mr Marshall, general surgeon, examined the plaintiff on 29 April 2004. He was of the same opinion.[27]
[26] DCB 6-7
[27] DCB 23
47 Dr Kostos, rheumatologist, examined the plaintiff on 25 July 2007. He was of the opinion that the plaintiff’s right shoulder condition was idiopathic and unrelated to her work with the defendant.[28]
[28] DCB 78
48 Professor Balla examined the plaintiff some time in June 2004. He was of the opinion that she had suffered an injury to her right shoulder as a result of her work with the defendant. He considered that a great deal of her symptoms were related to depression.[29]
[29] DCB 27-28
49 Professor Balla re-examined the plaintiff some time in June 2005. He considered that her symptoms of neck and right shoulder pain were largely related to her depression and were unlikely to have a significant organic basis. However, he suggested that an opinion be obtained from an orthopaedic surgeon. I assume the reason why that suggestion was made was because the diagnosis of an orthopaedic injury was not specifically within the range of his medical expertise. [30]
[30] DCB 33-34
50 Professor Balla re-examined the plaintiff again on 23 February 2010. On examination, he elicited diffuse pain which led him to conclude that the organic nature of the injuries were no longer apparent and that the plaintiff’s presentation was consistent with non-organic factors. He suggested that the plaintiff should be examined by a psychiatrist. He repeatedly referred to there being no secondary neurological damage. No doubt that was a matter of some importance to Professor Balla because his special interest is in neurological disorders.[31]
[31] DCB 37-38
51 Dr Fish, occupational and environmental physician, examined the plaintiff on 25 March 2009. He was very emphatic in the expression of his opinion that the plaintiff definitely had right rotator cuff dysfunction, and despite surgery, he considered that it was still significantly impairing the function of the plaintiff’s right shoulder.[32]
[32] DCB 91
52 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 12 July 2004, 3 December 2008, 11 March 2009 and 3 March 2010. The results of Mr O’Brien’s earlier examinations were that he was not persuaded that there was a strong organic basis for the complaints made by the plaintiff of injury to her right shoulder. He considered that the plaintiff was suffering from chronic pain.[33]
[33] DCB 42, 45, 50-51 and 54
53 However, the observations made by Mr O’Brien, after he last examined the plaintiff, are curious, to say the least. He firstly described the plaintiff as exhibiting signs of illness behaviour, but then observed that there was no evidence of severe organic pathology. This suggests that he was not discounting some degree of pathology. He went on to say that he would not totally rule out the possibility, from a purely physical perspective, that the plaintiff could undertake employment involving light duties. The latter suggests, to some degree, that his opinion changed to the extent that he was entertaining the notion that some organic pathology was present in the plaintiff’s right shoulder.
54 It is the last paragraph of the last report of Mr O’Brien’s which is the most curious:
“Historically one would regard this patient’s employment as a significant contributing factor to what I would regard as a Chronic Pain Syndrome. This is certainly effectively a disabling condition and certainly will preclude the plaintiff from returning to her pre-injury occupation. Indeed, as I have previously stated, I would consider this patient could now be regarded as totally incapacitated. This situation I believe is permanent. In other words, this patient will never return to any form of gainful employment … I am sure from the clinical perspective there will be no change even in the distant future.”[34]
[34] DCB 54-55
55 I am concerned not to read too much into what appears to be something of a wrap up by Mr O’Brien of the product of all of his examinations of the plaintiff. It occurs to me that to give any meaning to it almost inevitably leads to the conclusion that as a result of all of the plaintiff’s medical complaints from which Mr O’Brien was asked to examine the plaintiff (neck, shoulders and arms), that there was some organic basis, and with the addition of illness behaviour (whatever that actually means), a Chronic Pain Syndrome has been produced.
56 Furthermore, the use of the word “historically” seems to me to suggest that Mr O’Brien stood back and looked at the product of all of his examinations of the plaintiff and then concluded that there was a work relationship with the occurrence of the Chronic Pain Syndrome. Again that must include the plaintiff’s right shoulder.
57 The plaintiff was examined by four psychiatrists: Dr Nathar, Dr Botvinik, Dr Adlard, and Dr Entwisle. Each of them diagnosed an Adjustment Disorder secondary to a Chronic Pain Disorder or Chronic Pain Syndrome.[35] The chronic pain disorder or Chronic Pain Syndromes which they described appear to have been considered by them to have an organic basis. They all considered that the plaintiff was fit for suitable work despite the presence of a psychiatric condition.
[35] Dr Nathar at DCB 65-66; Dr Botvinik at DCB 73-74; Dr Adlard at DCB 35-87 and Dr Entwisle at DCB 96.
The Issues
58 Ms Annesley informed me that the issues which the defendant intended to raise were the following:
• The plaintiff had not suffered a compensable injury. • If the plaintiff suffered a compensable injury, then she was suffering from a Chronic Pain Disorder or Chronic Pain Syndrome which required the so-called unravelling. • If the plaintiff suffered a compensable injury and could prove that she had suffered an impairment of function of her right shoulder then it could not meet the statutory test for pain and suffering or loss of earning capacity. 59 In addition to the foregoing, Ms Annesley made a general attack upon the plaintiff’s credit. She submitted that either the plaintiff was untruthful in some of her evidence, or alternatively, was very unreliable.
60 The plaintiff made a claim for compensation on the defendant which the defendant accepted. The acceptance resulted in the plaintiff being paid weekly payment of compensation and the payment of her medical expenses. She is still in receipt of weekly payments.
61 Ms Forbes submitted, therefore, that the defendant could not now deny that the plaintiff had suffered a compensable injury, relying on Ansett Australian Pty Ltd v Taylor.[36] However, I consider that the best approach is to determine whether the evidence discloses that the plaintiff suffered a compensable injury.
[36] [2006] VSCA 171
62 The plaintiff was cross-examined at some length regarding an injury she sustained in a transport accident which occurred on 5 February 2001. The plaintiff saw Dr Horvat that day. She described a rather dramatic transport accident which involved her car travelling at 80 kilometres an hour and spinning around. Dr Horvat recorded that the plaintiff reported pain in her neck, right shoulder, right arm, left knee, right hip and lower back.[37] He said that the plaintiff did not consult him again regarding the injuries she sustained in the transport accident.
[37] DCB 104-105
63 Dr Horvat said that the plaintiff recovered from those injuries,[38] and that they were of no relevance to what occurred to the plaintiff in 2003 when she suffered the injury to her right shoulder.[39]
[38] Transcript 60-61
[39] Transcript 79
64 In the absence of there being any pre-existing injury, it seems to me that from the time when the plaintiff first attended Dr Levar, and throughout all the medical treatment she obtained, that there is a constant theme that she suffered an injury to her right shoulder as a result of her work for which she received treatment. According to Dr Horvat, Mr Clifford and Mr Deacon, the injury to the plaintiff’s right shoulder was caused by the plaintiff’s work.
65 The medical evidence relied upon by the defendant does not suggest that the plaintiff did not suffer an injury to her right shoulder. Rather it suggests that whatever condition presently ails the plaintiff, it was either not caused by the plaintiff’s work or that the plaintiff has since suffered a Chronic Pain Disorder or Chronic Pain Syndrome with a doubtful organic basis.
66 Dr Kostos is the only medical practitioner who has considered that the injury to the plaintiff’s right shoulder has nothing whatever to do with the work she undertook in 2003. It is not an opinion shared by any other medical practitioner who has examined the plaintiff. I reject it out of hand.
67 Dr Silver, Mr Marshall and Dr Fish accepted that the plaintiff suffered an injury to her right shoulder caused by the work she performed in 2003.
68 Professor Balla and Mr O’Brien do not discount that there was initially an organic basis for the plaintiff’s complaints of symptoms in her right shoulder. They prefer to view what they observed clinically as more driven by a psychiatric condition or illness behaviour. Although Professor Balla would apparently defer to orthopaedic opinions, and as I have already observed, Mr O’Brien provided a curiously worded opinion in his last report, even if that opinion is consistent with his earlier stated opinions of what he and Professor Balla considered the plaintiff as suffering from is a Chronic Pain Syndrome which is more psychiatrically based than physically based.
69 It seems to me that what is missing from the opinions of Professor Balla and Mr O’Brien are the findings Mr Clifford made through the arthroscopic examination of the plaintiff’s right shoulder. He found abnormality in the plaintiff’s right shoulder, and the MRI scan organised by Dr Horvat demonstrates other pathology which Mr Deacon, having the benefit of looking at all this retrospectively, considered to be of clinical significance, leading him to the conclusion which I have summarised above.
70 Although the expression Chronic Pain Syndrome has been used, I do not accept that it was used by Dr Horvat, for instance, in the same way as it was used by Mr O’Brien. Unfortunately, and too often, expressions like Regional Pain Syndrome, Chronic Pain Syndrome and Chronic Pain Disorder are used far too loosely by the medical profession. Further, and where they vary in their interpretation depends upon the medical discipline of the medical practitioner using that sort of expression to demonstrate what he/she considers to be the medical condition from which a worker is suffering.
71 I am not prepared to determine myself what interpretation should be given to those expressions. It was not my impression that Dr Horvat was using the expression Chronic Pain Syndrome in the same way as Professor Balla and Mr O’Brien. Furthermore, it seems to me that the psychiatrists were using the expression to contrast the physical consequences of the plaintiff’s injury to her right shoulder (among the other injuries that were referred to) with the psychiatric condition which they ultimately diagnosed. They seem to have used that expression differently again to Professor Balla and Mr O’Brien.
72 I do not accept the plaintiff’s evidence that she suffered symptoms of the injury to her right shoulder some time in 2001. I think she is mistaken about that. Nor do I accept the plaintiff’s evidence that she did not suffer injury in the transport accident on the 5 February 2001. However, I accept the evidence of Dr Horvat that the latter is of no relevance to the injury the plaintiff suffered to her right shoulder.
73 I find that the plaintiff did suffer a compensable injury as a result of the work which she undertook with the defendant. I accept that the plaintiff was required to undertake arduous work which led to her suffering an injury to her right shoulder, as well as to her neck and her right wrist which was later diagnosed as carpal tunnel syndrome.
74 I accept that the plaintiff then required the treatment which I have summarised above. Further, I accept that she has an organic basis for her complaints of pain and disability arising from the injury to her right shoulder, and that the way in which Dr Horvat used the expression Chronic Pain Syndrome has a strong connection with the organic injury, and is part and parcel of the organic injury.
75 I do not accept that the criticism made of the plaintiff’s demeanour in the way in which she gave her evidence warranted the attack made on her credit. I was not entirely convinced of the accuracy of the plaintiff’s evidence on all issues, but satisfied that she was attempting to give a good account of herself.
76 The plaintiff struck me as being a woman of modest intelligence. I think that was the reason why her evidence had a colour about it suggestive of being evasive and lacking spontaneity. However, in the end I consider that I can accept most of what the plaintiff said about the occurrence of the injury to her right shoulder and its consequences, and I am fortified in reaching that conclusion because there is a large body of corroborative medical material supportive of her case.
Serious Injury
77 It is very noticeable in the plaintiff’s affidavit sworn and 1 December 2009 that the plaintiff not only refers to the deficits which she experiences as a result of the injury to her right shoulder and arm, but also to constant pain in her neck, frequent headaches and constant pain in the back of both of her hands and wrists.
78 It would appear that it is the constellation of those injuries which have contributed to the consequences which she then describes. In the paragraph following her reference to those injuries, she refers to having trouble with her sleep; feeling hopeless; being a burden to her family; difficulty walking her dog, and difficulty doing light cooking and house work.[40]
[40] PCB 20-21
79 In the following paragraph, the plaintiff specifically refers to pain and stiffness in her right shoulder and the difficulty washing her hair, and being able to shower properly; needing her husband’s assistance to wash her body and to dress because of an inability to raise her right arm above shoulder level.
80 In the following paragraphs, the plaintiff returned to the theme of how the constellation of her injuries have affected her life, and in particular, referring to depression and loss of self-esteem; difficulty in maintaining her involvement with her church and feeling withdrawn.
81 The substance of the plaintiff’s second affidavit, sworn 8 February 2011, referred more to the way in which the injury to her right shoulder and the impairment of its function had consequences for her. She said that she still has pain and limitation of movement; a sharp pain in the flat and over the outside of her shoulder; difficulty moving her shoulder; a feeling of weakness and loss of strength and power; and difficulty carrying objects.[41]
[41] PCB 28
82 In the following paragraphs, she described how the problems with her shoulder made it difficult for her to do domestic tasks; undertake gardening; attending the Croatian Club, where she helped out; and she also described her need to have medical treatment provided by Dr Horvat, and the need to use medication.
83 The plaintiff’s evidence of the inability to function in a social, domestic and recreational setting is concerned with the evidence of her husband. He was cross-examined for the purpose of establishing whether in fact what he said in his affidavit was true. I have no hesitation in accepting his evidence. He gave it in a very straightforward and entirely believable way.
84 What is abundantly clear from the medical evidence is that the plaintiff has problems with her neck, and bilateral carpal tunnel syndrome. It is imperative that in determining whether the plaintiff meets the statutory test, that I determine what are the consequences to the plaintiff of the impairment of the function of her right shoulder as opposed to other injuries or ailments.
85 I accept the plaintiff’s evidence that she suffers pain in her right shoulder which affects her right arm. I do not accept that all the symptoms in her right arm are due to the injury to her right shoulder. It would appear that the plaintiff has unresolved problems due to the bilateral carpal tunnel syndrome, and in particular, persistent symptoms consistent with the carpal tunnel syndrome affecting her right lower arm.
86 I accept that the plaintiff’s right shoulder plays a significant part in her inability to engage in the social, domestic and recreational pursuits which were part of her life before she suffered an injury.
87 On the basis of the plaintiff’s evidence and the medical evidence, I find that the plaintiff has suffered pain and suffering consequences which deserve the description “very considerable”. I have reached that conclusion after having made the comparison that I am required to make.
88 It is not uncommon that workers have a number of injuries, or alternately, may have ailments which are disabling and which are not work-related, all of which contribute in one way or another to a reduction in earning capacity. The difficulty then becomes determining whether the compensable injury would cause that reduction in earning capacity in the absence of those other ailments.
89 The point is best demonstrated by the opinions of Dr Horvat and Mr Deacon. Dr Horvat was of the opinion that the impairment of function of the plaintiff’s right shoulder was responsible for her incapacity for work, but immediately following that statement he referred to “injuries” and referred to the injuries to her right shoulder, accelerated neck degeneration, bilateral carpal tunnel syndrome, Regional Pain Syndrome - related to her right shoulder - and her Adjustment Disorder with Anxiety and depressive symptoms rendering her totally and permanently incapacitated for work.[42]
[42] PCB 67c-67d
90 Mr Deacon discussed the production of the plaintiff’s injuries to her neck, shoulders and hands, but then refers to “injury”, which I assume to be a reference only to the impairment of the right shoulder, as the cause of the plaintiff’s inability to return to her pre-injury employment or any other form of employment.[43]
[43] PCB 158-159
91 The Court of Appeal dealt with a very similar issue in Dressing v Porter.[44] Ashley JA identifies the issue which the Court of Appeal was concerned to consider:
“There were, as I see it, two threads to his Honour’s conclusion that the appellant had not made out his case. First, that the various medical problems from which the appellant suffered made it difficult to separate out the-then consequences of the neck injury. Second, that the appellant had not established that his inability to work, and the restrictions and limitations from which he suffered, were due to his neck injury.”[45]
[44] [2006] VSCA 215
[45] paragraph 44
92 His Honour then dealt with the approach which the trial judge should have taken when dealing with multiple medical conditions, including one which was a compensable injury, in connection with whether the worker could establish that he had suffered a serious injury:
“This should next be said. In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”[46]
[46] paragraph 47
93 I accept the evidence of Dr Horvat and Mr Deacon, that although the plaintiff suffers from a number of medical conditions which all contribute to her loss of earning capacity, that if she had not suffered any of those other medical conditions, the impairment of the function of her right shoulder is of such gravity that it has consequences in terms of impairment and loss of earning capacity to meet the statutory test.
94 I consider the position in which the plaintiff finds herself to be consistent with the issue dealt with by Ashley JA. Therefore, I must follow the same reasoning. I do not believe that because Ashley JA postulated the approach in connection with a claim for pain and suffering that the logic behind the reasoning should equally not apply to a claim for loss of earning capacity.
95 Therefore, it seems to me that I should accept the opinions of Dr Horvat and Mr Deacon that the impairment of the function of the plaintiff’s right shoulder has consequences for her which render her incapacitated for all work.
96 I accept the plaintiff’s evidence in her affidavits and in her oral evidence that she suffered a significant injury to her right shoulder which required significant medical treatment and which has impaired the function of her right shoulder in the manner in which she has described in her affidavits.
97 I find that the plaintiff could not return to her former employment because of the arduous nature of the manual tasks required of her beyond her capacity to sustain that sort of effort. I also find that because the plaintiff is sixty-two years of age; has very modest education; is a woman of modest intelligence, and has only been fit for fairly arduous factory/labouring work, that she is not fit for “suitable employment” as defined.
98 I do not accept that the efforts the plaintiff made when undergoing medical treatment and attempts to maintain her employment demonstrate that she has failed to undertake rehabilitation and retraining. It occurs to me that all along the way the plaintiff has had difficulty in returning her right shoulder to a reasonable level of functioning which would enable her to entertain a return to work even in light work on a part-time basis.
99 Therefore, I find that the plaintiff has suffered pain and suffering consequences which deserve the description “very considerable” in terms of loss of earning capacity. I have reached that conclusion after having made the comparison that I am required to make.
Conclusion
100 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
101 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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