D'Vaz v Lynch Manufacturing Victoria Pty Ltd
[2018] VCC 1127
•8 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04573
| BERNADINE D’VAZ | Plaintiff |
| v | |
| LYNCH MANUFACTURING VICTORIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 April 2018 | |
DATE OF JUDGMENT: | 8 August 2018 | |
CASE MAY BE CITED AS: | D’Vaz v Lynch Manufacturing Victoria Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1127 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the left shoulder, the neck and psychiatric and psychological condition – Adjustment Disorder with Mixed Anxiety and Depressed Mood – disentanglement of the consequences between the physical and psychiatric injury – disentanglement of the consequences of the injury to the left shoulder and the injury to the neck – pain and suffering damages – loss of earning capacity damages – whether the statutory standard has been satisfied by the plaintiff
Legislation Cited: Accident Compensation Act 1985, s135AB(16)(a) and s135AB(16)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Church v Echuca Regional Health [2008] VSCA 153; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: The plaintiff’s application for serious injury certificate in respect of both physical and psychological/psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick with Mr D J James | Nowicki Carbone Lawyers |
| For the Defendant | Mr A W Middleton | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff brings this application by Originating Motion dated 3 October 2017 by the plaintiff applying for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of and in the course of her employment with the defendant. In this case, there was no frank injury date nominated by the plaintiff, which gave rise to these applications.
2 Initially, the plaintiff sought a serious injury certificate in respect of the following injuries:
·Injury to the left shoulder
·Injury to the neck
·Injury to the lower left limb, including but not limited to the knee
·Injury to the lower back; and
·Psychiatric and/or psychological conditions, including, but not limited to, stress, Anxiety and Depression.[1]
[1]Plaintiff’s Court Book (“PCB”) 7
3 At the commencement of the hearing, Mr Fitzpatrick, on behalf of the plaintiff, stated that the plaintiff would not be pursuing a serious injury certificate for the injury to the lower left limb, including, but not limited to, her knee. He also stated that the plaintiff would not be seeking a serious injury certificate for her lower back injury.
4 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The plaintiff claims that the injuries were as a result of the plaintiff’s employment with the defendant. The plaintiff also alleges that she has suffered a psychiatric injury as a result of her employment with the defendant and seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity.
5 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined.
·Exhibit “A”, a letter from Mr Steven Csongvay, orthopaedic surgeon, dated 9 August 2016 and his report.
·Exhibit “B”, the Plaintiff’s Court Book, pages 6 to 27, 30 to 33, 35 to 58, 68A to 68F, 71 to 77, 77F to 79, 84 to 90, 92 to 146, 172 to 177, 180 to 189 and 201 to 220.
·Exhibit “C”, progress notes of Dr Ansari, general practitioner.
·Exhibit “D”, progress notes of Dr Navani, general practitioner.
·Exhibit “D”, letters from Slater & Gordon to Mr Doig, orthopaedic surgeon, dated 7 March 2018 and 22 March 2018.
·Exhibit 1, photographs of the plaintiff (seven photographs).
·Exhibit 2, DVD of surveillance film for the dates of 3 August 2017 and 10 August 2017.
·Exhibit 3, the Defendant’s Court Book (“DCB”), pages 4 to 64 and 92 to 87.
6 The Court Books in this proceeding were voluminous. The plaintiff has seen many doctors.
7 This application by the plaintiff is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act in respect of both her left shoulder and neck, which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s left shoulder and the plaintiff’s neck.
8 The plaintiff has, also, in this application, brought a claim under the definition of “serious injury” contained in s134AB(37)(c) of the Act, which requires the plaintiff to prove that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The severe mental or severe behavioural disturbance or disorder in this case is a diagnosis of Chronic Adjustment Disorder with Anxious and Depressed Mood and symptoms of a Chronic Pain Disorder.
9 Mr Middleton, on behalf of the defendant, identified the issues in this application as follows:
(i)In respect of both the neck injury and the left shoulder injury claimed by the plaintiff, the consequences for the plaintiff are not “serious”, as prescribed under the Act;
(ii)The Adjustment Disorder and Chronic Pain Syndrome claimed by the plaintiff do not satisfy the statutory test for “severe”;
(iii)The plaintiff has not disentangled the consequences from the neck injury from the left shoulder injury;
(iv)The plaintiff has not disentangled the psychological and psychiatric consequences from the physical injury consequences; and
(v)The credit of the plaintiff is in dispute.
10 The plaintiff was cross-examined during the course of the application. There were no medical practitioners cross-examined in the hearing.
The statutory scheme
11 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
12 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 employment on or after 20 October 1999;[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(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”;[3]
[3]Barwon SpinnersPty Ltd & Ors v Podolak (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(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)(d) provides that the impairment for mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of the pain and suffering consequences and loss of earning capacity unless, when judged by comparison with other cases in the range of possible mental or behavioural disturbance or disorders, it can be fairly described as being “more than serious” to the extent of being “severe”;
(f) 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;
(g) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(h) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[4] 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 ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[4](Supra)
13 I am required 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
14 The plaintiff was born in 1963, and at the time of this Judgment is fifty-five years of age.[5] The plaintiff was born in India. The plaintiff was educated to high school level in India. The plaintiff came to Australia in October 2005.[6]
[5]PCB 6
[6]PCB 7
15 The plaintiff is a married woman and lives with her husband and son.[7]
[7]PCB 6
16 The plaintiff, prior to coming to Australia, worked in office work in India.[8]
[8]PCB 7
17 The plaintiff commenced her employment with the defendant in this application on 28 November 2005. The plaintiff continued her employment with the defendant until she ceased work on 5 May 2010. The plaintiff has not worked between 5 May 2010 and 25 November 2010. The plaintiff did attend at work on 26 November 2010 and only remained at work for approximately one to two hours.[9] The plaintiff has not been engaged in any employment since that time.
[9]PCB 14
The injury with the Defendant
18 The plaintiff worked as a process worker with the defendant. The plaintiff’s claim is that she received the injuries, the subject of this application, between the date of her employment in November 2005 and May 2010. The plaintiff described her role at the defendant’s premises as follows:
“On or about 28 November 2005, I commenced full time employment as a Process Worker with the employer. In this capacity, I worked as a florist, which required me to perform highly repetitive, dexterous and at times forceful tasks with my upper limbs. I was under pressure to prepare one arrangement of flowers in less than a minute, and approximately 48 or 75 arrangements per hour size dependant. I was also required to lift heavy containers of flowers and carry them to and from the workbench. Whilst standing at the processing table I was required to repeatedly rotate my torso to one side in order to retrieve flowers. During busy periods, I was required to work up to 14 days straight, and often these days included a number of hours overtime.
Over a two year period leading up to May 2010, I experienced a gradual onset of neck pain and left shoulder pain, which were related to prolonged hours of working in a cold and wet environment at the premises of the employer, as well as repetitive use and lifting with my arms. I also experienced a gradual onset of lower back and left knee pain, which were related to prolonged standing at work.
Despite the increasing pain in my left shoulder, neck, knee and back, I kept working, and my condition worsened. I felt that my lower back pain was particularly worse in cold environments.
As I began to develop the pain, I complained of my injury to the Team Leader Irene James on several occasions. However, I was never supported by management to take on light duties.
At the beginning of May 2010, I complained of my work injuries yet again. I was placed on alternative duties, which required me to make floral arrangements in a box. Although this role did not require me to lift or carry heavy items, I was still required to make repetitive use of my left shoulder and I was still required to work in a wet and cold environment. Again, my request to take on lighter duties was denied.
In or about 5 May 2010, I consulted with a General Practitioner, who certified me as unfit for any duties.”[10]
[10]PCB 7-8
19 In the course of her evidence, and before cross-examination, the plaintiff sought to expand on the description of her work. Her evidence was:
MR FITZPATRICK:
Q:“Mrs D’Vaz, I think there was something you were referring to about the lifting of the bucket incident - - -?---
A:Yes.
Q:- - - that you wanted to mention?---
A:Yes, I – I lifted the bucket from the trolley which was with water and with the stock, it’s a flower with a stock, so when I lifted it up from the trolley and I brought it down, it’s got half water and half flowers, I pull me upper back and then I had to get few days off work and then went back to work.”[11]
[11]Transcript (“T”) 27, Lines (“L”) 13-21
20 The plaintiff returned to work on 26 November 2010 for a short period of one to two hours but was unable to continue her work due to pain. The plaintiff has not worked since that time. The plaintiff does not allege there was any frank injury or incident, which has caused her injuries.
The medical treatment
21 The plaintiff has had extensive medical treatment since May 2010. In some circumstances, the plaintiff has actively sought out further medical treatment. The plaintiff had had prior medical difficulties and issues with different complaints before attending upon her doctor in May 2010 and ceasing work.
22 The plaintiff had attended Dr Ansari in October 2006 for headache and neck pain. In October 2006, she had attended for lethargy and poor sleeping patterns. In April 2007, the plaintiff attended Dr Duong with complaints of upper back pain, and was prescribed Celebrex. In November 2007, the plaintiff complained of pain in her left pectoral region to Dr Ansari. On 20 November 2008, the plaintiff attended at the Sunshine City Medical Centre with complaints of migraine and depression. The plaintiff was prescribed Lexapro. Her complaint at that time was about familial difficulties.[12]
[12]Exhibit “D”
23 In April 2009, the plaintiff had attended Dr Navani for the left knee complaints. The plaintiff was referred to x-ray. In July 2009, the plaintiff had an x-ray of her cervical spine, which found moderate lower cervical spondylosis and C5-6 disc space narrowing.[13]
[13]PCB 35
24 A short time prior to the plaintiff ceasing work, she attended for x-ray and ultrasound on her left shoulder on 23 March 2010. The finding on those examinations was there was some tenderness in the AC joints, suggesting early degenerative changes.[14]
[14]PCB 32-33
25 On the day prior to the plaintiff ceasing work, she attended upon Dr Ansari, complaining of neck pain and left shoulder pain. At that time, she was diagnosed by Dr Ansari as suffering from a rotator cuff lesion.
26 On 5 May 2010, at the direction of Dr Ansari, the plaintiff attended for a left shoulder injection. The plaintiff was diagnosed as having a rotator cuff injury at that time. An ultrasound-guided steroid injection to the left shoulder was performed on 5 May 2010.[15]
[15]PCB 31
27 On 10 May 2010, the plaintiff attended upon Dr Navani, seeking a report of an x-ray to her knee so that she could give it to her employer.[16]
[16]Exhibit “D”
28 The following day, on 11 May 2010, the plaintiff attended Dr Ansari, complaining that the injections to her shoulder make it worse. At that time, she was prescribed Feldene capsules by Dr Ansari.
29 In the period of 18 May 2010 until 29 June 2010, the plaintiff attended upon Dr Ansari on a number of occasions complaining of pain in her back, neck pain and left shoulder pain. The plaintiff also made complaints of left knee pain.
30 The plaintiff was referred to Dr Alex Stockman, rheumatologist, by Dr Ansari. On 7 July 2010, the plaintiff attended and was examined by Dr Stockman, rheumatologist. He noted:
“She had positive femoral stretch reflex bilaterally. Examination of the left shoulder revealed reduced active movement, but normal passive movement and no good evidence of rotator cuff lesion. The left trapezius muscle was slightly swollen and tender.”[17]
[17]PCB 84
31 Examination of the left shoulder revealed reduced active movement but normal passive movement, and no good evidence of rotator cuff lesion. The left trapezius muscle was slightly swollen and tender. Dr Stockman noted the previous radiological examinations of the plaintiff relating to her lumbar spine, cervical spine and an ultrasound to her left shoulder. He also noted the x-ray of the left knee, which was normal.
32 Dr Stockman altered the plaintiff’s medication from Feldene to Celebrex, 200 milligrams, combined with an adequate dose of paracetamol. He also commenced her on Endep to assist her with sleep. Dr Stockman then ordered a CT scan of the lumbar spine to exclude any radiculopathy. Dr Stockman further ordered some blood tests to investigate “the rather generalised pain pattern” complained of by the plaintiff, which included lower rib margins on her left, and some pain and puffiness in the left pectoral muscle.[18]
[18]PCB 84-85
33 On 5 August 2010, the plaintiff attended upon Dr Andrew Miller, occupational health consultant. Dr Miller’s examination revealed a slight disability of the plaintiff’s neck and back due to local discomfort. However, she has normal movements.[19] Dr Miller noted the moderate disability of the left shoulder due to limitation of some movements.
[19]PCB 175
34 Dr Miller then noted that the plaintiff was undergoing further investigations, as organised by her specialist rheumatologist (Dr Stockman) and that was prudent in view of the widespread nature of her symptoms in order to eliminate any other complicating factors.[20] The examination by Dr Miller was performed on behalf of the insurers for the defendant.
[20]PCB 176
35 The plaintiff attended Dr Stockman on 19 January 2011. On examination, he noted the left shoulder was suggestive of bursitis or tendinitis.[21] Dr Stockman noted the plaintiff was keen to have an MRI scan of the affected areas, including her left knee and cervical and thoracic spine. Dr Stockman noted the plaintiff required supplements to assist with her general health.
[21]PCB 87
36 The plaintiff received physiotherapy treatment in the period of June to November 2010.
37 In February 2011, the plaintiff attended upon Dr Duong complaining of headaches and a sore neck. The plaintiff requested a CT scan of her head. That CT scan of her head was undertaken on 17 February 2011.[22]
[22]PCB 28
38 By March 2011, the plaintiff was continuing to see her general practitioner, Dr Ansari. Dr Ansari noted that the plaintiff had a reaction to the hydrotherapy component of her treatment.
39 In October 2011, the plaintiff attended upon Dr Navani. Dr Navani referred the plaintiff to Lisa Costa, psychologist. The plaintiff continued to see Ms Costa from October 2011 until 2017 on a regular basis.
40 In January 2012, the plaintiff returned to see Dr Stockman. It was decided at that consultation that an MRI scan of the cervical spine and left knee would be an appropriate course to take.
41 In March 2012, the plaintiff was referred to Dr Singh, psychiatrist. Dr Singh prescribed Cymbalta for treatment of the plaintiff.
42 The plaintiff was referred to see Dr Clayton Thomas for pain management. This occurred in August 2012.[23] The plaintiff only attended on one occasion at that pain management rehabilitation centre. The defendant’s insurer rejected the plaintiff’s claim for a pain management course to be undertaken by Dr Thomas.
[23]PCB 69
43 In June 2015, Dr Navani referred the plaintiff to see Dr Stella Kwong, psychiatrist. The plaintiff has not seen Dr Kwong for treatment.[24]
[24]PCB 20N
44 On 4 May 2016, the plaintiff had an MRI examination of her left shoulder.[25]
[25]PCB 25
45 On 9 August 2016, the plaintiff attended upon Mr Steven Csongvay, orthopaedic surgeon. Mr Csongvay diagnosed acromioclavicular joint tenderness and irritability. He performed an ultrasound-guided steroid injection to the AC joint on the left side.[26]
[26]See Exhibit “A”
46 The plaintiff continues to see her general practitioner, Dr Navani, and sees him approximately every three weeks.
47 In the course of her evidence, the plaintiff stated the difficulties she now faces as follows:
Q:“Tell us, give us an idea of what you did before and what you don’t do?---
A:Your Honour, before I was a very outgoing person and I was very bubbly, I was always helpful. I did a lot of things like church work activities and helpful things too, and I - I think after that, after my - all this, it’s really brought me just the opposite, I’m just not that person who’s interested in going and doing things, I’m not motivated because I’m not sure how it will affect me, and then I don’t feel fit because of my pain, it reduce me to so much of these things of doing - being active with the family or friends. Even when the family comes they try to be there for me, but I am not myself. I just like them being around, I know they are there for me, but sometimes it’s too much for me. I just go into my room and I try and isolate myself because I feel that all this emotion makes me feel panicky and I don’t know what happens to me, I just go to my room. I stay there for some time and then I come out. It has affected me a lot. I’m not that same person who I was.
Q: You - - - ?---
A:I tend to cry a lot. And I - I feel like I always feel there’s no-one there to hear me, except my cousin who’s with me all the time, Gerard, he’s the one that I ask, while - all the time, because even my family, they are there for me I know, but - but they don’t understand what I am going through and what I’ve been through, or I’m going to till now. So, sometime it’s - it’s really hard for me from that person being so active and mostly all the pain and everything is all (indistinct) stopped – I don’t know my life is like on a standstill.”[27]
[27]T36, L24 – T37, L22
48 On the plaintiff’s evidence, she lives a very miserable and limited life. The plaintiff has actively sought medical intervention to assist with her understanding of her physical and psychological problems. Every possible medical avenue has been explored by the medical practitioners for the benefit of the plaintiff.
The medical opinions
Cervical spine
49 In his final submissions, Mr Fitzpatrick stated that the cervical spine was the subsidiary physical injury to the plaintiff’s left shoulder injury.
50 The most recent radiological examination of the plaintiff’s cervical spine was an MRI scan conducted on 3 July 2015. The conclusion in relation to that examination is reported as follows:
“1. Mild to moderate central canal stenosis is seen C4/5, C5/6 and C6/7 level.
2. Mild to moderate foraminal stenosis at left L5/6 level.
3. No convincing significant cervical nerve root impingement is seen.
4. No abnormal cervical cord signal identified to suggest underlying myelomalacia or oedema.”[28]
[28]PCB 27
51 The MRI scan findings are consistent with degenerative changes and not indicative of a frank injury or nerve root impingement which may result in symptoms in the plaintiff’s shoulders or left arm.
52 Dr Andrew Miller examined the plaintiff on behalf of the defendant’s insurers. He prepared a report dated 5 August 2010. The plaintiff relied on this report to support her application for serious injury in relation to her neck. I note the doctor’s comments in relation to her neck are as follows:
“… My clinical examination today revealed a slight disability of her neck and back due to local discomfort, however she has normal movements.
There was a moderate disability of her left shoulder due to limitation of some movements.”[29]
[29]PCB 175
53 Dr Miller later noted in his report that there may be slow but sustained improvement, which can be expected; however, it is possible that she may be left with some degree of residual disability from these injuries.[30] Other medical practitioners have reported on the condition of the plaintiff’s neck, but the consensus of opinion is that her condition is a result of general degenerative changes.
[30]PCB 176
54 I do not accept that the plaintiff has satisfied the statutory test for “serious injury” in respect of her neck. The plaintiff suffers from age-related degenerative changes and minor consequential stiffness as a result of her neck condition.
The left shoulder
55 Mr Fitzpatrick, on behalf of the plaintiff, submitted that the consequences in relation to the plaintiff’s left shoulder are substantial, mainly or predominantly referable to an organic cause. Mr Fitzpatrick was relying on the decision of Meadows v Lichmore Pty Ltd[31] to make this submission.
[31][2013] VSCA 201
56 The plaintiff relied on numerous medical practitioners to substantiate the physical injury to her left shoulder and left shoulder function.
Dr Alex Stockman, rheumatologist
57 Dr Stockman examined the plaintiff on 7 July 2010. He reported to the plaintiff’s general practitioner, Dr Ansari.
58 Dr Stockman noted that the examination of the plaintiff’s left shoulder revealed reduced active movement but normal passive movement and no good evidence of rotator cuff lesion. The left trapezius muscle was slightly swollen and tender. Dr Stockman noted the complaint of generalised pain on the left and some pain and puffiness in the left pectoral muscle.[32]
[32]PCB 84
59 In a later report dated 1 September 2010, Mr Stockman noted that examination of the plaintiff’s left shoulder was suggestive of a rotator cuff lesion in the left shoulder and that the plaintiff was tender in the left pectoral region, and found some puffiness there. He noted the plaintiff had not responded to the subacromial steroid injection to the left shoulder, but indicated that the procedure should be repeated.[33] He noted as follows:
“… I see no reason why this lady cannot return to some light duties, but she is most reluctant to resume her previous employment because she claims that the cold and wet conditions makes things much worse. I have made no further appointments for her at this stage.”[34]
[33]PCB 86
[34]PCB 86
60 In his report dated 19 January 2011, Dr Stockman noted that examination of the plaintiff’s left shoulder was suggestive of bursitis or tendinitis.[35]
[35]PCB 87
61 On 13 January 2012, Dr Stockman examined the plaintiff again. On that occasion, he noted the plaintiff was a rather anxious lady with a full range of movements of the neck and shoulders, and no local tenderness. He noted, at that stage, that the plaintiff’s symptoms are a “Pain Syndrome”.[36] The plaintiff did not see Dr Stockman between June 2012 and October 2015. Dr Stockman reported that the plaintiff had rather widespread pain, in particular in the neck, and headaches, in the left shoulder, lower back pain and pain in the left leg, especially her left knee. He took a history from the plaintiff that, at that stage, in October 2015, she was taking Endep tablets, 50 milligrams, and Panadol Osteo and Stemetil tablets. He noted a report of an ultrasound of the plaintiff’s left shoulder showed subacromial bursitis, and that this may be one cause of her pain. He noted that the plaintiff had undergone an MRI scan of the cervical spine and that examination did not show any radiculopathy, but some degenerative changes were evident.[37]
[36]PCB 88
[37]PCB 89
62 In a report to Dr Navani dated 15 November 2015, Dr Stockman stated that the ultrasound of the plaintiff’s left shoulder showed some subacromial bursitis and degenerative tendinopathy of the supraspinatus tendon. There is moderate swelling of the left AC joint, which may be a major cause of her pain, because it was quite tender when examined on that day.[38]
[38]PCB 90
63 Dr Stockman, in his final report dated 20 November 2015, stated as follows:
“… Examination of the left shoulder revealed reduced active movement, but normal passive movement and no good evidence of rotator cuff lesion. The left trapezius muscle was slightly swollen and tender.
…
Ultra-sound of the left shoulder performed on 19/10/2015 showed subacromial bursitis and degenerative tendinopathy of supraspinatus tendon. There was also moderate swelling of the left acromio-clavicular joint.
…
… [The plaintiff] has a long history of rather widespread pain dating back to about 2007. She claims it was caused but the repetitive nature of her work. There is no specific injury. In my view the rotator cuff lesion in the left shoulder is a result of her work in the florist enterprise but I am of the view that that the neck and thoracic spine pain, left hip and knee pain which are due to a combination of degenerative changes and pain syndrome are constitutional. … .
I am of the view that [the plaintiff] can only perform light work on a part time basis because of her shoulder, neck and thoracic pain. If the shoulder doesn’t settle down with conservative measures, she may require surgery to repair rotator cuff tendons … .” [39]
(sic)
[39]DCB 6-8
64 The plaintiff has not been back to see Dr Stockman. In her evidence, the plaintiff stated that she had seen Dr Stockman on four separate occasions.[40]
[40]T29
65 In his final concluding opinion, Dr Stockman was of the opinion the plaintiff suffered from a Pain Syndrome which was constitutional. In his opinion in relation to the plaintiff’s ability to work, he has included her shoulder, neck and thoracic pain as all part of his assessment of her ability to work or not. He has not separated out the consequences relating to the shoulder injury alone.
Dr Clayton Thomas
66 The plaintiff was seen by Dr Clayton Thomas on one occasion.[41] The plaintiff was examined by Dr Thomas on 13 August 2012. In his report dated 17 August 2012, Dr Thomas stated:
“On examination, there is not a lot to see here. She does have limitation of left shoulder movement, predominantly in abduction and flexion, which are about 90° each. Other movements seem to be intact and the rotator cuff muscles seem strong.
…
I reviewed a plain x-ray of her cervical and thoracic spine. There were some C5 and C6 degenerative changes only. I reviewed a CT scan of her lumbar spine. There was a bilateral disc bulge at L4-L5 but no neurological compromise.”[42]
[41]T29
[42]DCB 4
67 Dr Thomas then concluded:
“1. There was not a lot to see here. It was hard to be specific about an accurate diagnosis. I had the impression that there were some nonorganic factors contributing to her pain.
…
3. Her medication was reasonable, not excessive. I was not convinced that intervention had anything to offer based on the background documents that I had at the time that I saw her.”[43]
[43]DCB 5
68 The evidence in this case was that the defendant’s insurers did not approve of the funding for the plaintiff to attend at the Dorset Rehabilitation Centre.
Dr Philip Mutton, consultant occupational physician
69 Dr Philip Mutton was asked to examine and review the plaintiff on behalf of the insurer for the defendant. He prepared a report dated 20 December 2010.
70 Dr Mutton noted that the plaintiff gave him a history that she had attempted to return to work some two weeks earlier, but only lasted for two hours. This reference by the plaintiff is to her last day of work of 26 November 2010.
71 Dr Mutton examined the plaintiff and made the following conclusions:
“Examination of the left shoulder revealed that she could abduct 90° and forward elevate 150° whereas on the right she could achieve 150° each of forward elevation and abduction. She could move her cervical spine through a normal range of movement and she could laterally flex and forward flex the lower back such that she could touch the knees.
She was a little tender over the left upper arm and shoulder girdle. There was normal neurology in the upper limbs. Reflexes were difficult to achieve in the right lower limb but there was full function in the knees and hips.”[44]
[44]DCB 11
72 Then Dr Mutton set out the x-ray and ultrasound report of the left shoulder which was performed on 23 March 2010.
“X-ray and Ultrasound of the left shoulder dated 23 March 2010 was reported as follows:
X-ray:
The bones and joints of the left shoulder appear intact. There are no fractures or lytic/sclerotic lesions identified. The joint spaces and articular margins appear normal. The alignment appears preserved. No abnormal soft tissue calcifications are seen.
Ultrasound:
The biceps tendon appears intact with no fluid in its sheath. The rotator cuff tendons appear intact with no tears, thickening or calcification identified. The subacromial bursa is thickened suggesting bursitis. There is pain on abduction.
The AC joint is mildly tender.
Conclusion:1. No significant bony abnormality detected.
2. No obvious rotator cuff tear identified.
3. Mild subacromial bursitis is noted. Ultrasound guided steroid injection may be useful if clinically indicated.
4. There is some tenderness in the AC joint suggesting early degenerative change.
…
There is a suggestion of bursitis only in the subacromial bursa and the AC joint was mildly tender.”[45]
[45]DCB 12
73 Dr Mutton noted the steroid injection to the plaintiff’s left shoulder on 5 May 2010. He then concluded as follows:
“… The date of injury is stated to be 5 May 2010 but there was no specific workplace incident.
…
From a clinical examination viewpoint of the musculoskeletal system, there is some mild loss of function in the left shoulder only in abduction. This shoulder has been subjected to a corticosteroid injection in May 2010 for mild bursitis. There were no significant findings in relation to the spine and the only abnormal clinical findings in terms of the neurological system were some weakness of the right ankle jerk/knee jeer on that side.
…
I cannot relate her general symptoms and many of the investigations undertaken to her employment.
…
At this time I cannot provide an exact diagnosis but I think one can confidently say that she is not suffering from a musculoskeletal condition that is related to her employment.”[46]
[46]DCB 14
74 Finally, Dr Mutton concluded that the plaintiff’s symptoms of pain were not related to the plaintiff’s employment. He was unable to identify a musculoskeletal condition which required the physical therapies the plaintiff was undergoing.[47] In Dr Mutton’s opinion, the plaintiff was able to have a current capacity to work as a florist in her normal hours from a musculoskeletal viewpoint. He added that the only modification to her duties is that he would recommend avoiding repetitive overhead work and maintain a weight limitation of 5 kilograms. He stated this would not impact on her pre-injury employment. He described the plaintiff’s condition as a mild loss of function of the left shoulder.[48]
[47]DCB 15
[48]DCB 17
The Medical Panel, dated 10 August 2011
75 The plaintiff attended before a Medical Panel of Dr Leanne Rowe, Dr Judith Frame and Mr Barry Elliott, who examined the plaintiff on 5 July 2011. The finding of the Medical Panel was, at that time, August 2011, was the plaintiff’s incapacity for work is materially contributed to by her left shoulder injury.[49] The Medical Panel concluded that the plaintiff was suffering a left shoulder girdle muscle dysfunction.[50] The Panel stated:
“Based on the worker’s history of the gradual onset of left shoulder pain related to repetitive use and lifting with her left arm and the persistence of left shoulder pain from the designated date of injury to the current time, the Panel’s physical examination findings of a mild restriction of left shoulder movement , the medical imaging investigations and the Panel’s diagnosis, the Panel concluded that the left shoulder girdle muscle dysfunction has persisted since onset and resulted from [and still results from] and was [and still is] materially contributed to by the claimed left shoulder injury.”[51]
[49]DCB 21
[50]DCB 25
[51]DCB 25-26
76 This Court is not bound by the Medical Panel’s decision. The Medical Panel’s decision is but one opinion in a whole range of opinions by medical practitioners in this case. The Medical Panel’s decision is based on a full acceptance of the plaintiff’s history of complaints and symptoms.
Dr Dominic Yong, specialist occupational physician
77 Dr Yong examined the plaintiff on behalf of the defendant in this matter for the purposes of medico-legal reporting. He prepared a report dated 1 March 2018. In respect of the plaintiff’s left shoulder, Dr Yong stated:
“On inspection of the left shoulder, there were no scars or swelling. The range of movement of the shoulder was 90° abduction, 90° flexion, 40° external rotation and 30° internal rotation. The power was reduced. It was noted that she was able to point to her mid thoracic area to show her level of pain which led to an increased internal rotation compared to when we formally assessed.”[52]
[52]DCB 102
78 Dr Yong agreed with the Medical Panel Report dated 10 August 2011.[53] In his conclusion, Dr Yong stated:
“… [The plaintiff] reported pain and restrictions are not consistent with the expected clinical course taking into account the mechanism of injury, the radiological and clinical findings and the time that has elapsed since the alleged injury occurred.
…
… [The plaintiff] has a current capacity for work.”[54]
[53]DCB 103
[54]DCB 105
79 Dr Yong’s opinion was that the plaintiff had a current work capacity.
80 Dr Yong noted the plaintiff had been deconditioned over the period of time between ceasing work and the current time. His opinion was that the plaintiff would initially need to work three-hour shifts, three days a week, rising to a working time of twenty hours per week.[55] Dr Yong’s opinion was that the plaintiff could perform the roles of a school crossing supervisor and telephone/reception-type duties.
[55]DCB 108
Dr Ales Aliashkevich, neurosurgeon and spinal surgeon
81 Dr Aliashkevich examined the plaintiff for medico-legal purposes on 3 April 2018. He prepared a report of that date. In his report, he noted as follows:
“I consider her neck and arm condition consistent with the chronic occupational overuse syndrome and employment-related aggravation of pre-existing degenerative spine disease. In my opinion, her employment was a materially contributing factor to significant aggravation of her pre-existing cervical spine degenerative condition.”[56]
[56]PCB 102
82 Dr Aliashkevich qualified that opinion by stating:
“It is difficult to make judgements on the nature and extent of [the plaintiff’s] neck injury without having up-to-date and detailed radiological investigations of her cervical spine. Although I’m not a qualified pain specialist or rheumatologist, but based on the character of [the plaintiff’s] symptoms with widespread pain and presence of diffuse muscular tenderness on examination, I had an impression that her chronic musculoskeletal overuse injury has started a cascade of chronic pain syndrome, typical for central sensitisation and likely subsequent evolution of a fibromyalgia syndrome. In my opinion, [the plaintiff] is experiencing the pain amplification/distortion from the development of central sensitisation on a background of organic aggravation of her spondylosis and musculoskeletal injury. I am surprised that the old notes of Dr Stockman and Dr Thomas have not mentioned these central sensitisation mechanisms.”[57]
[57]PCB 102-103
83 In his report, Dr Aliashkevich stated as follows:
“[The plaintiff’s] level of pain is scored as 9/10. In my opinion, the onset, character, intensity and the distribution of her pain is comparable with an organic chronic musculoskeletal overuse injury and aggravation of degenerative condition which subsequently evolved into a chronic pain syndrome.”[58]
[58]PCB 105
84 It is clear from this last statement by Dr Aliashkevich that he accepted the plaintiff’s description of pain absolutely. It is also unclear what Dr Aliashkevich meant when he was talking about an organic chronic musculoskeletal over-use injury and then the condition subsequently becoming a Chronic Pain Syndrome. One interpretation of this opinion is that the pain commenced as organic in nature and has morphed into a psychological condition of Chronic Pain Syndrome. Dr Aliashkevich is not qualified to diagnose the plaintiff with a psychiatric condition of Chronic Pain Syndrome.
Mr Stephen Doig, orthopaedic surgeon
85 The plaintiff was examined by Mr Doig for medico-legal purposes. He prepared a report dated 27 March 2018. In respect of the plaintiff’s left shoulder injury, Mr Doig noted, in examination:
“Examination today of the left shoulder revealed that to formal measurement she had a flexion to 75, extension to 35, abduction to 65, adduction to 25, and ER to 0 and IR to 0. When she was observed getting up and down off the couch and mobilising, these ranges of movement were considerably better.”[59]
[59]PCB 107
86 Mr Doig noted:
“This lady gives a history of a gradual process type injury affecting multiple different areas. It is difficult to attribute the injury to her back or to her left knee to her work. It is possible to attribute her neck and her left shoulder to work by the mechanism of injury which he has described and by the job itself. As a consequence I consider it is probable that employment with Lynch Manufacturing caused the injury to her left shoulder and this is in accordance with the previous medico-legal reports and the previous Panel report. … .
…
As far as the injury to the left shoulder is concerned it would appear on clinical examination that she has a marked restriction in range of movement of the left shoulder. Observing how her ranges of movement are markedly better and it is clear that she does not have no rotation of the shoulder. As a consequence it would appear as though there is a psychological overlay, but I cannot quantify the amount of that. Having said that I consider it is probable that she has an injury to the left shoulder which is organic in nature. … The injury to her cervical spine is mild and I consider the injury to her left shoulder is mild to moderate.
…
As far as her pre-injury employment is concerned I do not consider that she is capable of returning to her pre-injury employment as far as her cervical spine is concerned. I furthermore do not consider that she is capable of returning to her pre-injury employment either full time or part-time as far as her left shoulder is concerned.
…
Consequently as far as her cervical spine is concerned alone she may have the ability to do some type of sedentary work, but only on a short-term part-time basis. I consider that she would not be able to do that for more than 2 to 3 hours a day, 3 days a week. As far as her left shoulder is concerned she may be able to do a sedentary part-time job again for about 2 hours a day, 3 days a week, not involving any heavy lifting, pushing, pulling or carrying, and I consider those jobs would be extremely difficult to find.”[60]
[60]PCB 108
87 Mr Doig noted that the plaintiff stated that she was unable to do anything because of her ongoing pain and discomfort from all of her problems, including the left knee, back, neck and left shoulder.
88 In his later report dated 5 April 2018, Mr Doig notes, in respect of the plaintiff, that pain is a purely subjective assessment. He stated:
“… [The plaintiff] states she has significant ongoing pain particularly in the neck and in the left shoulder. The radiology does not go along with a significant problem there. She does not have a torn rotator cuff although she does apparently have some subacromial bursitis. She does have some cervical spondylosis. As a consequence I consider her range of movement is more restricted to formal examination than to informal observation and that would imply as I have said in my report that there may be a degree of unconscious or subconscious overlay on her symptoms.”[61]
[61]PCB 109A
89 Mr Doig then went on to consider, a proposed job of a product demonstrator for the plaintiff. He agreed that the plaintiff was able to do that type of employment as long as she was trained to do so.[62]
[62]PCB 109B
Dr Andrew Miller
90 Dr Andrew Miller assessed the plaintiff on behalf of the defendant’s insurer. He prepared a report dated 5 August 2010. His opinion was that the plaintiff had a moderate disability in her left shoulder due to limitations of movement. Mr Miller’s report is a very old one in the context of this case. Nevertheless, it was an assessment made near to the time of injury and is pertinent in an assessment of this case. The plaintiff’s symptomology and complaint of pain in her left shoulder has increased over the time from Mr Miller’s assessment, until now, in a situation where she has not been at work, and has not been using her left shoulder on her evidence.
91 Each of the doctors have accepted the plaintiff’s complaints of pain and limitation of movement, as she has described them. Clearly, an assessment of the plaintiff’s credit is relevant and pertinent to a decision in this matter. I will deal with the plaintiff’s credit later on in these Reasons.
The Psychiatric Disorder
92 The plaintiff was referred to the psychologist, Ms Lisa Costa, by Dr Navani. The plaintiff was seen by Ms Costa on numerous occasions between 9 November 2011 and the last occasion, being 21 August 2017. Ms Costa prepared a report dated 5 April 2018.
93 Ms Costa diagnosed the plaintiff as suffering from a Somatic Symptom Disorder which was previously described as a Pain Disorder.[63] Ms Costa’s opinion was that there was a direct causal link between the plaintiff’s current psychiatric condition and her employment.[64] Ms Costa stated that the plaintiff is not ready to return to work in any capacity, and that is likely to be permanent, as a result of her psychological conditions. In the final statement made by Ms Costa in her report, she stated that as she has not seen the plaintiff recently, she is unable to comment on the plaintiff’s current psychological capacity for employment.
[63]PCB 68A
[64]DCB 68E
Dr Vijay Navani, general practitioner
94 Dr Navani, is the plaintiff’s general practitioner. He has been treating the plaintiff since the time of the alleged injury in 2010. In his report dated 30 March 2018, Dr Navani stated:
“… [The plaintiff] has no work capacity due to her physical injury and the sequelae of chronic pain syndrome/disorder and I cannot separate this from the psychological injury. The mental fragility is impacted due to persistent pain and is a major component of chronic pain syndrome/disorder.”[65]
[65]PCB 55
95 Dr Navani has not been able to disentangle the psychological or psychiatric consequences of her condition from the consequences arising from the alleged physical difficulties the plaintiff is suffering.
Dr Ales Aliashkevich, neurosurgeon and spinal surgeon
96 I have previously referred to Dr Aliashkevich’s report in relation to the plaintiff.
97 In respect of the Psychiatric Disorder, the opinion of Dr Aliashkevich is that the plaintiff’s position has evolved into a Chronic Pain Syndrome.[66] I note that Dr Aliashkevich has been unable to separate out the physical consequences of the plaintiff’s alleged injuries from the subsequent Chronic Pain Syndrome that he speaks about in his report.
[66]PCB 105
Dr Ashok Kumar Singh, consultant psychiatrist
98 Dr Singh treated the plaintiff in 2012. The referral was from her general practitioner, Dr Navani.
99 In his initial report, dated 18 April 2012, Dr Singh assessed the plaintiff as suffering from Adjustment Disorders associated with mild panic attacks and that she also had symptoms of Somatisation Disorders.[67] Dr Singh reduced the plaintiff’s prescription of Tramal and started the plaintiff on Cymbalta.
[67]PCB 72
100 Dr Singh then prepared three reports dated 25 May 2013, 25 November 2013 and 26 November 2013. He noted the plaintiff was last reviewed by him on 26 November 2013. He stated that the plaintiff was prescribed Endep of 50 milligrams nocte. She was also undergoing psychotherapy. He stated the plaintiff had been suffering less panic attacks than before. In that report, he noted to Dr Navani that he was unable to see the plaintiff in the near future.[68]
[68]PCB 98
Dr David Weissman, consultant psychiatrist
101 The plaintiff was referred to Dr Weissman for medico-legal reporting by her solicitors. The first report by Dr Weissman is dated 29 January 2015.
102 Dr Weissman noted that the plaintiff required assessment by an orthopaedic surgeon and an occupational physician. He stated that the plaintiff’s psychiatric condition was described as follows:
“… The claimant is suffering from mild to moderate – but closer to mild - mixed reactive depressive and anxiety symptoms, themes and features with some pain focus as a consequence of or secondary to her work-related pain, limitations and restrictions.”[69]
[69]PCB 117
103 Dr Weissman diagnosed the plaintiff as suffering from Chronic Adjustment Disorder with Anxious and Depressed Mood. He noted the plaintiff was somewhat pain-focused, with elevated health concerns. He went on to state that the plaintiff was suffering from a Chronic Pain Disorder associated with psychological factors and a general medical condition.[70] Dr Weissman found that, from a psychiatric point of view, the plaintiff had a capacity for work.
[70]PCB 118
104 In his report dated 25 January 2018, Dr Weissman stated his diagnosis as follows:
“I think that the major diagnosis in this case, from a psychiatric perspective, is one of a Chronic Pain Disorder associated with psychological factors and a general medical condition (DSM-IV), also known as a Somatic Symptom Disorder with predominant pain (DSM-V).
Whether or not the concept of ‘Chronic Pain Disorder’ is ‘obsolete’ does not detract from its usefulness as a concept.
This has been complicated by the development of a mild to moderate, mixed, anxiety and depressive syndrome, satisfying the diagnostic criteria for a chronic Adjustment Disorder with Anxious and Depressed Mood, of mild to moderate intensity or severity.”[71]
[71]PCB 131
105 Dr Weissman’s opinion was that on a purely psychiatric basis the plaintiff was not totally incapacitated for all work. He thought that the plaintiff had at least a partial capacity for suitable duties.
106 Dr Weissman was asked by the plaintiff’s solicitors to clarify what he meant by the elevated health concerns expressed by the plaintiff. In his report dated 23 March 2018, he said as follows:
“When I say that she has significantly elevated health concerns and when I say that she is markedly pain and symptom focused and is emotionally distressed by this, I am stating that she has excessive worries about the pain symptoms. As mentioned, her pain has become diffuse and widespread beyond, it seems, the area of pathology. This indicates that her subjective/reported symptoms cannot be fully explained by a general medical condition.”[72]
[72]PCB 134
Mr Matthew Tagkalidis, psychiatrist
107 Mr Tagkalidis prepared a report dated 19 February 2013. Mr Tagkalidis, at that time, assessed the plaintiff to be suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, relevant to the claimed injuries. He noted that the psychiatric impairment, is secondary, and consequential to the accepted physical injury, and is, therefore, to be excluded.[73]
[73]PCB 214
Professor George Mendelson, psychiatrist
108 The plaintiff was examined on behalf of the defendant for medico-legal reporting purposes. Professor Mendelson prepared a report dated 26 August 2015. He stated his opinion as at that time as follows:
“Based on my examination of [the plaintiff] earlier today it is my opinion that she does not have any diagnosable mental disorder, and that there is no indication of loss of work capacity due to any psychiatric illness or psychiatric impairment.”[74]
[74]DCB 39
109 Professor Mendelson explained his diagnosis as follows:
“Based on the history given to me by [the plaintiff] and my observations on mental status examination I consider that she does not have any diagnosable mental disorder. The basis for my opinion that [the plaintiff] does not have a mental disorder is that her emotional symptoms and my observations on mental status examination do not, in my view, meet the diagnostic criteria or threshold for a finding of a specific psychiatric disorder.
At the same time I accept and acknowledge that [the plaintiff] does experience and report emotional symptoms, and I consider that these emotional symptoms are due to an understandable psychological reaction to her physical complaints and her current situation, as discussed above.”[75]
[75]DCB 40
110 At that time, Professor Mendelson was of the opinion that the plaintiff had a capacity for gainful employment within the restrictions of her physical conditions.[76]
[76]DCB 40
111 In his most recent report dated 10 November 2017, Professor Mendelson stated his opinion as follows:
“Based on the history given to me by [the plaintiff] and my observations on mental status examination it remains my opinion that she does not have any diagnosable mental disorder. The basis for my opinion that [the plaintiff] does not have a mental disorder is that her emotional symptoms and my observations on mental status examination do not, in my view, meet the diagnostic criteria or threshold for a finding of a specific psychiatric disorder.
…
Her account of her past and current treatment has been set out above. In my opinion there is no indication that [the plaintiff] requires treatment under the care of a consultant psychiatrist or clinical psychologist for any diagnosable mental disorder. In my opinion she could continue to take the low dose of amitriptyline at night, under the supervision of Dr Navani, while the stressor of ongoing litigation continues.
In response to your question concerning [the plaintiff’s] ‘psychiatric capacity for employment’, in my opinion – in-so-far as her current emotional state is concerned – she does have the capacity for gainful employment but she is not motivated to acknowledge any improvement in her complaints or to become involved in any vocational rehabilitation programme.”[77]
[77]DCB 55
112 Professor Mendelson goes on to note, in his view, the plaintiff had taken on the position of learned pain behaviour.[78]
[78]DCB 56
Dr Michael Duke, psychiatrist
113 Dr Duke examined the plaintiff on behalf of the defendant’s insurers. He prepared a report dated 20 July 2016. Dr Duke’s assessment at that time was as follows:
“From my examination I was unable to conclude that she had an active Axis I psychiatric diagnosis but would say that she is entrenched in the aggrieved invalid role with the family dancing attendance upon her.
From a psychiatric perspective, going back to some form of work would probably be better for her given that she has actually worked as an office worker from the ages of 18-40 years.”[79]
[79]DCB172-173
114 Dr Duke noted that the plaintiff was prescribed Endep, 50 milligrams. He stated that, from a psychiatric point of view, medication is more for pain adjunct management than any psychiatric condition. He also stated that there was no diminution of the plaintiff’s work capacity.[80] Dr Duke was asked for clarification about his initial report. On 2 November 2016, Dr Duke stated as follows:
“… You would recall that I did not reach any Axis I diagnosis but felt that [the plaintiff] was living the life of an entrenched invalid who was aggrieved and the family was dancing attendance upon her. I felt that the family may benefit from a family therapy approach to this situation.”[81]
[80]DCB 174
[81]DCB 183
115 In conclusion, I have assessed the plaintiff’s psychiatric condition as not meeting the required “severe” standard that is required under the Act for certification in relation to serious injury for psychiatric injury. Further, the expert medical evidence is conflicted from being, on the one hand, Dr Duke’s version of the plaintiff’s condition, to Dr David Weissman’s opinion of her condition.
116 I am not satisfied, on the balance of probabilities, that the plaintiff has made out her claim for serious injury certificate based on a psychological or psychiatric condition. I find that on the psychiatric basis, the plaintiff has a capacity to engage in employment and she has not done so.
The credit of the Plaintiff
117 I have had the advantage of observing the plaintiff giving evidence from the witness box. I am not satisfied that the plaintiff was accurately and consistently stating the consequences of either the physical or psychiatric injury to her.
118 In the reports of Mr Stephen Doig, who reported for the plaintiff, and Dr Dominic Yong, who reported for the defendant in this matter, both expressed their concern about the course of the plaintiff’s clinical presentation and the difference between their examinations and the plaintiff’s movements within the examination room.
119 The plaintiff’s claims for serious injury certification in this case rely heavily upon the plaintiff’s history to doctors and an acceptance of the plaintiff’s accurate description of her symptoms.
120 In the authority of Church v Echuca Regional Health,[82] the Court of Appeal has given clear advice to courts of first instance to be careful when making use of surveillance DVD material to decide the accuracy or veracity of a plaintiff. Nevertheless in this case, there was surveillance film shown of the plaintiff for the days of 3 August 2017 and 10 August 2017. In total there was 18 minutes of film show. It is to be remembered that the plaintiff was under observation for 30 hours of surveillance by agents of the defendant. This observation took place between 2015 and 2017. There was no film taken of the plaintiff in 2015.
[82](2008) 20 VR 566
121 In the film of 3 August 2017, the plaintiff was filmed attending at the St Albans Market. She attended at the butcher’s stall and was able to drop bags and pick them up without any difficulty. She then moved from that stall to the fish shop with bags in her left hand. During the course of her time, at approximately 11.05am, the plaintiff was walking around the market with bags in both hands. Shortly after that period, the plaintiff then attended at a second fish shop and was able to put the bags on the ground and lift them up. The plaintiff then walked to her vehicle with bags in both hands and entered into the driver’s side of her vehicle to drive away from the market.
122 To a casual observer, the plaintiff was ordinarily and normally going about the business of shopping in a market. There was no apparent restriction in any of her movements, particularly to do with her left shoulder or in any of her circumstances around crowds and people in the marketplace. The plaintiff was seen to be actively engaging in conversation and trading with the people in the market.
123 On 10 August 2017, again, at 11.30am, the plaintiff was seen as a passenger in a car driven by her husband going towards the market. Again, on this occasion, the plaintiff was seen to be carrying bags in her left arm from a fruit stall. At one stage, at 11.40am, the plaintiff had all of her bags over her left arm, which contained both fruit and her handbag. A short time after this observation, the plaintiff was seen to be driven away by her husband.
124 The plaintiff was shown these surveillance films in Court. She was cross-examined about her activities during the course of the film. She then was cross-examined about being driven to and from the market. The following evidence was given:
MR MIDDLETON:
Q:“But if you tell the doctors about the severity of your pain and you went on 10 August to the market, even though you could do the shopping yourself, why wouldn’t you get your husband to carry the shopping for you?---
A:If you see in the video I am doing it myself when I go alone I can’t expect my husband to be there to – to carry for me.
Q:On that day, why not?---
A:Because he’s not available all the time.
Q:I know, but on the day 10 August, why wouldn’t – if you’ve got a bad shoulder, both left and right shoulder, and the pain goes down your arm, you tell doctors?---
A:Yeah.
Q:Why wouldn’t you get him on that day when he’s with you to come and carry the bags for you?---
A:Sometimes I go on my own, Your Honour, and that day he’s not available, Your Honour.”
HIS HONOUR:
Q:“When you say he’s not available, he’s driven you to the shopping centre?---
A:Sometimes he drives me, Your Honour.
Q:No, no?---
A:Okay.
Q:Just concentrate on 10 August, you understand what I’m asking you?---
A:Okay, sorry.
Q:Thank you. On 10 August, your husband was driving you and he drove you to that shopping centre, the market?---
A:No, he didn’t drive me, Your Honour.
Q:Okay, how did you get there?---
A:I went by myself.
Q:Right.”
MR MIDDLETON:
Q:“Are you, on oath, saying, that on 10 August when you were filmed, hopping into a car at home, a beige car, into the passenger seat, before you got to the market, that it wasn’t your husband who drove you to the market?---
A:Explain that again please? I don’t understand.
Q:At the beginning of 10 August - - -?---
A:Yes.
Q:- - - you were at home - - -?
A:---Yeah.
Q:- - - and you hopped into the passenger seat of a grey coloured car?---
A:Okay, sorry, yeah.
Q:Now, who drove you and next you were filmed shortly thereafter at the market?---
A:Yes.
Q:Who drove you to the market that day?---
A:My husband.
Q:And on 10 August he drove you home afterwards didn’t he?---
A:Yes.”[83]
[83]T47, L6 – T48, L14
125 This was a clear example of the plaintiff giving evidence, stating one thing on one occasion and reversing her statement when challenged. I do not accept this was a failure to understand by the plaintiff when she was asked the questions. The plaintiff had a full understanding of all the questions during the course of the hearing and that was apparent to anyone that was listening to the questions and watching and listening to her answers.
126 The plaintiff was shown photographs of herself, which were taken from Facebook entries. These photographs were seven in number. It was exhibit 1 in the hearing.
127 The plaintiff was cross-examined about Photographs 6 and 7 of that exhibit. The plaintiff’s initial evidence on this issue of the dough being on her hands was as follows:
Q: “Yes, and the other one?---
A: That is 23 December 2014.
Q: Right; now in those last two you appear to be holding a pot?---
A: Yes.
Q:And on the one, on one of them, it appears that you have the dough on your hands?---
A:Yes.
Q:Are we to conclude from that, that you have been mixing that dough?---
A:No, Your Honour, I’m not mixing the dough.
Q:Well, why are your hands covered in product?---
A:Because my son is doing that, I’m just holding there, the flour is on the table, you can see that there.
Q: But what’s the - - -?---
A: We just took that for a (indistinct).
Q: What’s that on your hands then?---
A: The flour.
Q: Flour?---
A: Yes.
Q: The mixture, the dough, isn’t it?---
A:No, there’s the flour the benchtop there, you can see there the bench - - -
Q: Same colour as the dough, isn’t it?---
A: No, it’s not the same colour, it’s white.
Q:Now, you’re obviously socialising with your family and enjoying that?---
A:It’s in my house – it’s in my house, my son is doing that, I’m telling them what to do, they are doing it, I’m not able to do it.”[84]
[84]T39, L6-26
128 It was clear to anyone who was looking at the photographs that the plaintiff had dough on her hands and that she was in some way involved in mixing the dough.
129 In re-examination, the plaintiff gave the following evidence on that topic:
MR FITZPATRICK:
Q:“Yes. Now, if you go over to - the fifth, No.6, Mrs D’Vaz. Now, you’ve already said that’s a photograph of you, and I think one of your other sons; is that right?---
A:Yes, elder son.
Q:And your son’s holding the dough and letting it dangle over a pot; is that right?---
A:Yes.
Q:Now, in the break between lunchtime have you had a chance to have a look at this photo on a phone and for us to sort of zoom in on the - on the right hand on the pot?---
A:Yes.
Q:Is that right?---
A:Yes, Your Honour.
Q:And having a look at that did that allow you - or sorry, what have you got to say about your right hand after looking at the zoom-in of the photo?---
A:I could see that I have some of the dough on my hand.
Q:Yes?---
A:That must - maybe probably that I’m showing my son how to do it, and I would attach that dough.
Q:Now, if you look at your left hand in that same photograph, does it appear to you that your left hand has any dough on it?---
A:No, not that I can see.
Q:And the pot in the Photograph No.6, what is - is the pot in the air or is it resting on something?---
A:It’s on the bench top.
Q:And we see in Photograph 7 there’s a pot on a bench top?---
A:Yeah.
Q:Is that the position - well, anyway, how is that in relation to - how is that pot situated as opposed to six, Photograph 6?---
A:That was - opposed to 6?
Q:It’s probably a bad question. In other words, has the pot moved as far as you’re aware between Photographs 6 and 7?---
A:Yes.
Q:It has?---
A:Yes.
Q:Are you holding the pot in either photograph?---
A:No.
Q:Up off the bench?---
A:No, that’s two different ones, yeah.”[85]
[85]T68, L7-T69, L8
130 The plaintiff has clearly had time to think about her answer in respect of the dough on her hands and realised she could not maintain her denial of using the dough. Whilst this is a small example of the plaintiff’s inconsistencies in giving her evidence, it is an indicator of the plaintiff’s lack of frankness in the giving of her evidence.
131 The plaintiff also gave evidence about the reasoning for her not attempting to look for work from the time of ceasing work in May 2010. In particular, Mr Middleton cross-examined the plaintiff about her ability to work after she had seen Dr Stockman. The evidence was as follows:
Q:“Now, when you saw Dr Stockman did he discuss with you your ability to do some work?---
A:He didn’t discuss that with me because he said - I think he - he just referred me to my GP.
Q:Are you aware that he wrote to your solicitors in November 2015 describing you as having a capacity to perform light work?---
A:I’m not 100 per cent about that.
Q:Well, are you aware of it at all, that he at some stage had suggested you were capable of doing light work?---
A:He might have, might have. Might be recommended, but - - -
Q:Have you ever looked for any light work?---
A:I was incapacitated so I didn’t look, because of my pain I couldn’t.
Q:And when you went for rehabilitation did you discuss the possibility of light work?---
A:Yes, I did.
Q:And did you apply for any jobs then?---
A:No.
Q:Why not?---
A:Because I was - I was not very - I couldn’t do much work, even for now I can’t do much work at home. And then going out I’m not sure whether I’d be able to go and do any - I might be able to on certain days, but I’m not sure what can I do.
Q:Now, how regularly do you see Dr Navani now?---
A:Every three weeks.
Q:And when you see him, what happens?---
A:I - I actually go to my doctor, I explain all my pains. He gives me my medications.
Q:And your certificates?---
A:And my certificate, which has no capacity of work.
Q:Yes?---
A:And because of that I think I never look for work because he said I’m incapacitated.
Q:And when was the last time that you recall that he conducted a physical examination of you and your complaints?---
A:Some time in the years but I really - not very clear on that.”[86]
[86]T32, L25 – T33, L26
132 This evidence is at the crux of this case.
133 The plaintiff in this case gives a history to doctors that she is incapacitated and cannot do anything in relation to her work. The doctors accept that history from her and make their observations and diagnoses accordingly. The plaintiff though has been assessed in the past as being suitable for light work and she has not looked for work. I take this refusal by her to look for work as an example of her pursuing her application for serious injury and consequently damages, at the expense of properly attempting to return to employment. For the plaintiff to give the answer that her general practitioner has certified her as incapacitated from work, is not a sufficient answer, because it all relies upon her history to her general practitioner who, on her evidence, has not regularly examined her to independently determine whether or not she is incapacitated.
134 Further, in this case, the plaintiff has heavily relied upon evidence that she retires to her room in the house when family members come to visit her. She says that she retreats and uses the term “my family is there for me”. There is no affidavit material in support of the plaintiff’s claim from either her husband or her son, who live with her. There is a supporting affidavit from her cousin, Gerard Shafton.[87]
[87]PCB 21-22
135 Professor Mendelson took a history from the plaintiff in his report dated 10 November 2017, which stated the following:
“She complained also of swelling in both elbows.
… [The plaintiff] then said that she also has a ‘bone in the left hip giving trouble’.
She told me also ‘I don’t know if I can trust my lawyers’ because ‘they didn’t get an answer within 120 days’, referring to her application for a serious injury certificate.
… [The plaintiff] next made the comment that ‘my cousin got me a lawyer’.”[88]
[88]DCB 51
136 I accept that history from Professor Mendelson is an accurate reporting of what the plaintiff told him. I find that that is consistent with the plaintiff seeking to advance all arguments for her serious injury certification application.
137 I conclude that I am unable to rely upon the evidence of the plaintiff as being accurate and consequently, the plaintiff’s histories to doctors and the like are undermined.
Consequences to the Plaintiff of the injuries from her employment
138 I am unable to be satisfied to the requisite standard on the balance of probabilities what consequences flow from the plaintiff’s work with the defendant. The plaintiff’s presentation in relation to psychiatric conditions and symptoms is complicated by her history given to doctors about previous family matters which required her to be medicated with Lexapro.[89] The medical practitioners who have assessed the plaintiff, both those for the plaintiff and those for the defendant, have expressed some concern about the history and actual disability suffered by the plaintiff.
[89]Exhibit “D”
139 The plaintiff has also failed to properly disentangle the psychological and psychiatric consequences she complains of from the physical consequences. The failure by the plaintiff to successfully disentangle the psychiatric aspects of the physical consequences has not assisted the plaintiff in this case.
140 I am unable to be satisfied that in respect of the consequences arising from the alleged physical injury to the plaintiff’s left shoulder, that those consequences are more than significant or marked and are at least very considerable.
141 In respect of the consequences of the psychiatric injuries alleged by the plaintiff arising from her employment, I am unable to be satisfied that those consequences are “severe” as required under the Act for the certification of serious injury.
Loss of earning capacity
142 The plaintiff relies on the fact that she has not worked since May of 2010 to establish that she has lost her ability to work and obtain income from personal exertion. I am not satisfied that the plaintiff has made every effort to re-engage with the workforce after her injury and actively seek out work. I am not satisfied that she has satisfied the Court to the requisite standard on the balance of probabilities that she has incurred at least a 40 per cent reduction in income. I understand her case is that she has lost all of her capacity to be employed. I do not accept that.
Conclusion
143 The plaintiff’s application for a serious injury certificate in respect to the physical injuries arising out of or in the course of her employment with the defendant is dismissed.
144 The plaintiff’s application for serious injury in respect of psychiatric consequences arising out of or in the course of her employment with the defendant is dismissed.
145 I will hear the parties on costs.
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