Dascalu v Farm Pride Foods Ltd
[2016] VCC 125
•23 February 2016
3333
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04972
| DORINA DASCALU | Plaintiff |
| v | |
| FARM PRIDE FOODS LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2016 | |
DATE OF JUDGMENT: | 23 February 2016 | |
CASE MAY BE CITED AS: | Dascalu v Farm Pride Foods Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 125 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – bilateral upper limbs – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), 134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Church v Echuca Regional Health (2008) 20 VR 566; Richards v Wylie (2000) 1 VR 79; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for loss of earning capacity and pain and suffering.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon Ltd |
| For the Defendant | Mr C Miles | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant between July 2007 and October 2010 (“the period of employment”) and on 29 January 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the upper limbs (shoulders).
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005)14 VR 622
[2](2006)14 VR 602
10 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11 The plaintiff is presently aged fifty-nine, having been born in Romania in 1956. She lives with her twenty-three year old youngest daughter.
12 The plaintiff attended high school in Romania until about sixteen. After school, she worked as a process worker for about five years and then worked in a factory sewing for a similar period.
13 In 1987, the plaintiff migrated to Australia. She did not speak or write English. She now has limited English skills.
14 When she first arrived in Australia, the plaintiff spent a number of years out of the workforce raising her children. She also worked in various factories, including as a picker/packer with Smiths Chips for approximately six years and as a process worker with Steggles for approximately five years. She worked as a cleaner for six or seven years.
15 In her first affidavit, the plaintiff deposed that prior to commencing employment with the defendant in July 2007 as a machine operator, she enjoyed relatively good health and was able to work full time.
16 In her second affidavit sworn in April 2015, the plaintiff described suffering a low back injury in Perth in 2003. Thereafter she had ongoing intermittent low back pain. She also had occasional left shoulder pain.
17 The plaintiff had a flare-up of low back pain in March 2007. An x-ray and CT scan were arranged. She was referred for physiotherapy and prescribed Mobic. Her back pain settled with treatment.
18 The plaintiff underwent a pre-employment medical examination with the defendant on 3 July 2007. Both her back and left shoulder were then “okay”.
19 The plaintiff attended her general practitioner in late 2007 and February 2008 for prescriptions for Duatrol SR to assist with intermittent low back pain. She had another flare-up of low back pain in about October 2008, but it settled by early December.
20 The plaintiff also mentioned pre-incident right shoulder pain in her second affidavit.
21 The plaintiff described right shoulder pain gradually worsening through the end of 2008 and into 2009. She first attended First Health Medical Centre (“First Health”) on 6 March 2009 with increasing right shoulder pain. She had an x-ray on 11 March 2009 and an ultrasound on 16 April 2009, both of which she believed were normal. She was prescribed Celebrex.
22 In June 2009, the plaintiff had a flare-up of her low back and right shoulder pain. On 12 June 2009, she had a lumbar x-ray. She took Celebrex for her pain and she commenced physiotherapy at Hampton Park on 23 June 2009.
23 The plaintiff had ongoing right shoulder pain and also some left shoulder pain. She told her physiotherapist she felt work was aggravating her shoulder condition.
24 The plaintiff reported this problem at work and was advised that if she could not work, she should stay home. As she was recently divorced and had to support herself and her two young children, she continued working. Her shoulder and back pain improved with physiotherapy and medication and she worked on despite the pain.
25 The plaintiff was cross-examined as to her health prior to the said date, having not mentioned any early difficulties with her shoulders to some examiners post incident and not mentioned any prior shoulder problems in her first affidavit.
26 The plaintiff denied having had any long-term left shoulder problems, as early as May 2006.[3] She agreed that she had physiotherapy and also attended Dr Lim for right shoulder pain in 2009.[4]
[3]Transcript (“T”) 19
[4]T20
27 The plaintiff agreed she had hurt her back while working with Steggles in Perth, although Mr Troy had a history she had not suffered injury prior to working for the defendant.[5]
[5]T16
Work duties and injury with the Defendant
28 On about the said date, the plaintiff suffered injury to both shoulders whilst operating a sealing machine, the lid of which was not operating properly (“the incident”).
29 The plaintiff reported her injury. She was seen by the factory doctor. She stopped work and was given pain relief and told to rest.
30 In her second affidavit sworn in 2015, the plaintiff gave further details of the work duties performed by her as a result of which she suffered injury to her shoulders (“the work duties”).
31 The plaintiff described the two main roles that she performed full time with the defendant: She worked on a separator machine which required her to lift trays and carry them from a pallet to a machine. That activity placed stress on her shoulders and spine and it was hard physical work.
32 The plaintiff was also required on some days to work on a crusher machine. She worked from a pallet which was stacked with eggs placed on cardboard trays. She had to lift each tray, weighing about 12 kilograms, sometimes from above head height, and carry it to the machine. After putting a tray on the machine, she had to lift each individual cardboard box off the tray, flip it over and release the eggs into the machine. This work involved using both arms repetitively to lift and flip the trays.
33 The work on the crusher machine was difficult. It was repetitive physical work which also placed stress on the plaintiff’s shoulders and spine.
34 After a time, the plaintiff was also placed on the boiling egg machine. She was meant to be rotated through three jobs which involved placing cartons containing 30 eggs near to the sucking caps repetitively. The next rotation involved weighing eggs on scales. The eggs came down a chute which was above head height.
35 The workers were given a crate to stand on, but because of the plaintiff’s short stature, she frequently had to reach up with her right arm to control the flow of eggs coming from the chute. She repetitively filled 2-kilogram bags with eggs. She also did a rotation involving the sealing machine. She was often asked to do extra rotations on the scales and she believed, due to the speed of her work, this placed extra stress on her right shoulder. She reported this to the defendant.
36 Late in 2009, the plaintiff started working on the new egg and mayo machine. She used a scoop to put a mixture of egg and mayo into plastic bags which were then put on the sealing machine. The machine had a large lid which had to be opened and closed. Because of her short stature, when operating the machine, the plaintiff had to raise her arms above shoulder height as she lifted and rotated the machine lid. At times, she had to jump and use force to pull the lid down.
37 As a result of performing the work duties, the plaintiff developed chest pain and suffered injury to her shoulders.
38 After a few days off work after the said date, the plaintiff returned to work taping boxes, but her arms were outstretched to pull the tape and this caused an aggravation of her shoulder pain.
39 The plaintiff’s symptoms were further aggravated by assembling and stacking boxes. She attended Hampton Park Physiotherapy on 23 March 2009, with ongoing shoulder region and left chest pain, and was on and off work.
40 In May 2010, the plaintiff was again required to lift trays above shoulder height. This activity further aggravated her bilateral shoulder pain.
Post incident treatment
41 The plaintiff first attended Dr Nash at Workplace Medical Services on 5 February 2010. Attendances continued over the following months, but her pain continued.
42 The plaintiff disagreed she initially complained of left chest wall pain that came on eight days earlier and that her shoulder movement at that time was normal.[6] She was told initially that she had only a muscle tear and was advised to stay at home for two months.[7]
[6]T22
[7]T23
43 The plaintiff agreed that in her WorkCover claim, she described her injury as having started in January 2010 with left-sided chest pain but also “bone structure.”[8]
[8]T20. In her Claim for Compensation dated 15 February 2010, the plaintiff set out that she suffered a pulled muscle on the left side of the chest when pushing down on a MULTIVAC machine on the said date.
44 The plaintiff also attended her general practitioner, Dr Sandhu, who arranged a number of investigations. The plaintiff believed an ultrasound of her shoulders in May 2010 showed a full thickness tear of her right supraspinatus. She agreed that this was the first post-incident shoulder investigation.[9]
[9]T21
45 The plaintiff went to Romania for six weeks from 2 June 2010 to visit her sick mother. There, she treated her shoulder problems at the mineral baths.
46 The plaintiff then returned to work on light duties, but had a further flare-up whilst packing boxes in early September 2010.
47 The plaintiff was referred to orthopaedic surgeon, Mr Raleigh, whom she first saw in September 2010. He arranged a number of investigations and recommended right shoulder surgery. He also arranged an MRI scan of the plaintiff’s left shoulder in September 2010. He injected her left shoulder to try to ease the impingement with tendinitis on 5 October 2010.
48 The plaintiff ceased work in October 2010.
49 On 25 October 2010, the plaintiff had an arthroscopy of her right shoulder to repair a full thickness tear of her supraspinatus tendon (“the first operation”). Thereafter she had some physiotherapy.
50 The plaintiff agreed her right shoulder was improved by the first operation, but disagreed that her problems resolved. Thereafter, she still had pain and did not have any strength. Maybe there was a 50 per cent improvement.[10]
[10]T23
51 The plaintiff denied telling Dr Graham at the end of November 2011 that her right shoulder was not troubling her.[11]
[11]T24
52 The plaintiff’s right arm was in a sling for quite some time following the first operation and she resumed physiotherapy on 16 November 2010. Her sleep was disturbed by pain and she required further painkillers, including Panadeine Forte and Panadol. She was worn down by the pain and developed some depressive symptoms, and in January 2011, Dr Sandhu commenced her on Avanza. As she was using her left arm more, her left shoulder pain gradually increased. She required a further injection in May 2011.
53 The plaintiff continued to experience left shoulder problems. As a number of injections provided limited relief, Mr Raleigh suggested she undergo surgery.
54 As WorkCover denied funding, the plaintiff was referred to Orthopaedic Outpatients at the Royal Melbourne Hospital, where she saw Mr Treseder. He performed a left shoulder arthroscopy, subacromial decompression and bursectomy, biceps tenotomy, acromioclavicular joint resection and rotator cuff repair in March 2012 (“the second operation”).
55 Physiotherapy thereafter provided the plaintiff with no real long-term benefit. She felt her left shoulder was worse after the second operation.
56 As at June 2012, the plaintiff remained in a lot of pain. She was then taking two to four Panadeine Forte daily and Endone, 10 milligrams. Despite medication, her sleep was disturbed by pain. She had a further ultrasound and x-ray of her left shoulder in July 2012. She was then doing home exercises and pool exercise.
57 On 3 October 2012, a Medical Panel found the plaintiff had no current work capacity which was likely to continue indefinitely.
58 As of May 2014, the plaintiff was doing hydrotherapy. She had previously taken strong pain relief medication, but had ceased taking it as it upset her stomach and impacted on her ability to function. She had learned to live with the pain.
59 At the time, the plaintiff experienced constant left shoulder pain, varying in intensity depending on her activity. She had a constant ache and also a sharp stabbing pain. She had pain and numbness in three fingers of her left hand. Her right shoulder was not as bad, but she still experienced ongoing pain and discomfort, particularly with increased activity. The plaintiff also had pain in both shoulders with weather changes and often she experienced pain around the bottom of her neck.
60 The plaintiff’s shoulder injuries significantly restricted her physical activities. She had restricted left shoulder movement and reduced left arm strength. She had difficulty performing activities involving pushing, pulling or lifting.
61 The plaintiff’s right shoulder and arm movement was also restricted but not to the same extent. She often experienced an increase in shoulder pain when she sat in one position for an extended period. The pain was an ache and she often put pillows under her arms when sitting to reduce it.
62 The plaintiff also experienced an increase in shoulder pain if she walked for extended periods. She agreed that after walking for 20 minutes she held her left hand in her pocket.[12]
[12]T31, history to Mr Jones
63 The plaintiff’s shoulder and arm restrictions impacted on a large number of basic activities such as opening lids, bottle tops and performing simple tasks like doing up her bra. She would have problems carrying a bucket of water.[13]
[13]T30
64 The plaintiff’s injuries and resultant restrictions also impacted on her mood. She often became frustrated and anxious. She became upset easily and cried at times. She often felt depressed. She occasionally struggled with memory and concentration.
65 Frequently, the plaintiff’s sleep was disturbed. She woke two to three times during the night and had great difficulty returning to sleep. She no longer derived the same enjoyment out of life.
66 When trying to sleep, the plaintiff now has to put a pillow under her shoulder and she has to turn over during the night. She has maybe four hours’ sleep during the night, and the following day she feels tired and angry.[14]
[14]T12
67 The plaintiff still has some neck problems, but not back problems, as was previously the case. Her neck pain is so bad she cannot turn her head. It interferes with her sleep, as does her shoulder pain.[15]
[15]T27
68 Pre-injury, the plaintiff went to the gym regularly and used the treadmill bike and rowing machine. Gym was her number one activity outside work and gave her a great amount of enjoyment. She loved going to the gym. It cleared her mind. She enjoyed the exercise and also speaking to people.
69 The plaintiff agreed that pre injury, she did not have any hobbies, apart from the gym. When she was working 12 hours a day, she came home, cooked, washed and looked after her two children.[16]
[16]T29
70 The plaintiff started back at the gym approximately one month ago because her doctor told her she had to “move her hands”.[17]
[17]T42
71 The plaintiff currently uses the treadmill and does floor exercises. She tried to do weights, but could not lift them.[18]
[18]T43
72 Pre-injury, the plaintiff went regularly for coffee and dinner with friends and family. Because of her pain and mood, she now goes less frequently.
73 The plaintiff was unable to be as active with her grandchildren (at May 2014 aged eight months and three years), as she would have liked. She had imagined she would be an active grandmother. It was a great source of frustration to the plaintiff that she struggled to play games with them.
74 The plaintiff’s grandchildren did not understand why she could not pick them up and play with them. She was upset, as she felt like she was letting them down. The plaintiff now looks after her five-year old grandchild on Wednesdays.[19]
[19]T28
75 The plaintiff could no longer perform heavier gardening activities, such as mowing the lawn, which she had previously enjoyed. She performed simple tasks like weeding and picking up leaves, but did so with pain, and much more slowly.
76 The plaintiff has gardening assistance from WorkCover. She can rake leaves and manages to do so, as it is very easy. She has to do it. She does not do any weeding.[20]
[20]T28
77 The plaintiff no longer did heavy household tasks such as vacuuming, but continued to do lighter tasks such as dusting, cooking and washing the dishes. She relied heavily on her daughter to perform heavier household tasks.
78 The plaintiff cannot do heavy housework because it is very hard to push and pull. She no longer does the same amount of cooking. She does light cooking, making herself a coffee or a sandwich.[21]
[21]T41
79 The plaintiff agreed with counsel for the defendant that she cannot go shopping on her own and has to have her daughter with her to assist.[22]
[22]T31
80 In her second affidavit, the plaintiff deposed that consequences of the injury remain as outlined in her first affidavit.
81 At present, whilst her left shoulder is worse than her right, the plaintiff still has pain every day.[23]
[23]T23
82 The plaintiff continues to see her general practitioner, Dr Sandhu, monthly. She takes two Panadeine Forte in the morning and two in the afternoon. She takes Nurofen and Panadol regularly. The plaintiff last obtained pain prescription medication from Dr Sandhu, maybe last month.[24]
[24]T29
83 The plaintiff also takes Avanza for depression. She has been told by Dr Sandhu that this would help her sleep but it does not. Having advised him to this effect, he told her she should not take anything stronger.[25]
[25]T27
84 The plaintiff broke down and needed a short break when she was asked about her depression. She cannot sleep and she gets angry. She tries and she cannot do things. She agreed that probably her emotional state affects her ability to work.[26]
[26]T30
Work post October 2010
85 The plaintiff ceased work in October 2010 prior to the first operation.
86 Before her injury, the plaintiff enjoyed working and being productive. She had been unable to work since suffering her shoulder injuries, and it upset her greatly that she could not work and support herself. She had always been a hard worker and independent, especially after her marriage breakdown.
87 As of May 2014, the plaintiff worried about her future and how she would support herself. She was in receipt of weekly payments, but struggled to live and pay her mortgage. She lived week to week.[27]
[27]Weekly payments continue
88 The plaintiff knew she would never be able to return to her pre-injury job as a machine operator, or any role requiring repetitive tasks such as lifting, pushing or pulling. She had only ever done manual labour work and had no experience working in an office and had limited English skills.
89 The plaintiff had been “forced” by WorkCover to look for work on two occasions and was unhappy about it.[28] She questioned that if in her everyday life she could not even open a tin or the lid of a bottle, how could she look for work?[29] Further, what sort of work could she undertake if at home she could not chop vegetables or open cans?[30]
[28]T24
[29]T25
[30]T26
90 The plaintiff could not work in the role suggested by Recovre packing bread rolls because of the numbness in her three fingers. She could not work on a conveyor belt and pack bags because of her shoulder problems. She was in pain when she moved her shoulders, even if doing so below shoulder height.[31]
[31]T26
91 The plaintiff saw IPAR regularly in 2012 and 2015. It did not arrange any job interviews for her.[32]
[32]T42
92 The plaintiff could not work standing at the entrance of Safeway and greet people because her English was poor and she would have problems standing all day.[33]
[33]T42
93 In re-examination, the plaintiff confirmed she was a good worker prior to her injury and she enjoyed work.[34] Now she cannot work, she feels “worthless”.[35]
[34]T40
[35]T41
Surveillance
94 There was 48.5 hours of surveillance of the plaintiff over nine days from August 2015 to January 2016. Forty five minutes of film was taken of which about half an hour was shown in Court.[36]
[36]T47
95 On 28 August 2015, the plaintiff was shown at Hampton Park Shopping Centre carrying bags of groceries to her car. She explained that sometimes she has to go shopping by herself. She does not go to the shops every day, but does so most days.[37]
[37]T32
96 The plaintiff agreed she was shown on 30 August 2015 raking the leaves on the footpath outside her house. She could undertake this task, but not every day. Maybe once every two weeks, “to go outside”.[38]
[38]T33
97 The plaintiff agreed she was shown attending Casey Aquatic and Recreation Centre where she went every second day.[39]
[39]T33
98 The plaintiff agreed that on 30 December 2015, she was shown loading two slabs of water into the backseat of her car. She did so because there was no-one else to do it. She had to do it by herself even if she had pain.[40]
[40]T35
99 In the film of 7 December 2015, the plaintiff was carrying a small towel. She agreed she was then going to the gym. When she takes a bigger bag she is going to hydrotherapy. The plaintiff does not go to the gym every day – “For two weeks [her] doctor had said [she] had to do something”.[41]
[41]T38
100 The plaintiff agreed that on 7 December 2015, she was shown reaching overhead with her right hand holding a broom pulling bark from a tree outside her house. She disagreed she was capable of that sort of movement quite easily. She explained she took pills when she needed to do work outside.[42]
[42]T39
101 The plaintiff disagreed that she was perfectly capable of carrying groceries on her own as she was shown doing on a number of occasions in these films. She denied that she exaggerated her level of disability and the joint pain she had in her shoulder.[43]
[43]T40
The Plaintiff’s earnings
Financial Year Ending Gross Earnings 30 June 2007 $42,564 30 June 2008 $41,106 30 June 2009 $33,452 30 June 2010 $39,724 30 June 2011 $24,353 30 June 2012 $33,322 30 June 2013 $24,578
Claim documents
102 On 3 October 2012, the Medical Panel determined that the plaintiff was suffering from persisting bilateral shoulder dysfunction with capsulitis of the left shoulder as a consequence of a right supraspinatus tear and left acromioclavicular joint disruption, both treated surgically. She was also suffering from an Adjustment Disorder with Anxious and Depressed Mood relevant to the claimed injuries.
103 On 26 August 2015, the Medical Panel determined that the plaintiff was suffering from persistent dysfunction of both shoulders, following soft tissue injuries that were surgically treated. She was also suffering from an Adjustment Disorder with Anxious and Depressed Mood. The Medical Panel was of the opinion the plaintiff had no current work capacity, and that was likely to continue indefinitely.
104 By letter dated 29 October 2013, CGU advised the plaintiff that her claim for compensation pursuant to s98C of the Act in relation to her shoulders following injury on 29 January 2010 had been accepted. This decision was based on an examination by orthopaedic surgeon, Mr Shannon.
The Plaintiff’s treaters
105 In a pre-employment medical on 3 July 2007, Dr Nash certified the plaintiff fit for any position. There was then a full range of movement in both shoulders.
106 Dr Nash saw the plaintiff on 5 February 2010 when she claimed to have developed left chest pain when operating a malfunctioning sealing machine. Initial examination of the right shoulder and cervical spine was normal. He diagnosed a pectoral muscle strain and prescribed Panadeine Forte and Voltaren, and referred the plaintiff for physiotherapy.
107 The plaintiff re-attended on 10 February 2010, complaining of increased pain attributed to a task involving over stretching of her arms.
108 A slight improvement was noted on review on 15 February 2010. On 5 March 2010, the plaintiff stated she had returned to office work on 2 March 2010 with a mild increase in pain. She was also required to assemble boxes which required elevation of her arms outside of the recommended physical restrictions. Her pain levels were then back to where they started.
109 On a subsequent attendance on 17 March 2010, the plaintiff complained of increased chest pain and was referred for an ultrasound. There were similar complaints on 19 March 2010 whilst working.
110 Dr Nash thought the plaintiff was likely to have sustained a soft tissue injury to her left chest wall. When last seen, he thought she was fit to perform modified duties. He expected a full recovery from the work injury within three months.
111 Dr Stabelos at the Southern Cross Medical Centre examined the plaintiff on 10 May 2010.
112 In a WorkCover Certificate of Capacity dated 10 May 2010, Dr Stabelos described the injury or disease as left chest, bilateral shoulder and upper back pain following a work accident when pressing down on a sealer. He diagnosed rib fractures, soft tissue injury and chest wall and back and bilateral rotator cuff syndrome.
113 Dr Stabelos then certified the plaintiff fit for modified duties with four hours’ work daily, four days a week, Monday to Thursday, with light duties only, including labelling work and stamping boxes, no lifting more than one kilogram; no overhead work and elbows by sides always. He noted a recent aggravation of the plaintiff’s shoulders due to overhead work at the workplace.
114 As of November 2012, Dr Sandhu at Southern Cross Medical Centre thought the plaintiff was unfit for any work duties due to the ongoing pains in her left shoulder.
115 In his February 2014 report, Dr Sandhu noted the plaintiff had managed to stop her analgesics due to gym exercises and pool hydrotherapy.
116 Dr Sandhu considered the plaintiff was unfit for all work due to ongoing pain in both shoulders.
117 In his most recent report of May 2015, Dr Sandhu noted the initial diagnosis of left fractured ribs and that the plaintiff also had right shoulder pains.
118 Over the next few months following the first operation, Dr Sandhu noted that the plaintiff started experiencing left shoulder pain due to the overuse of her left shoulder and arm. She then underwent left shoulder surgery and had had ongoing pains in her left shoulder since.
119 Dr Sandhu noted the plaintiff was on Axit tablets due to insomnia and depressive anxiety symptoms which she had since her work accident.
120 Dr Sandhu thought the plaintiff was currently unfit for any work duties due to ongoing pains in the shoulder and her anxiety symptoms. He noted she was due to see a psychiatrist over the next few days.
121 Dr Sandhu reported that the plaintiff’s symptoms had improved a few months ago, but had worsened since she had been told she was fit to work. The plaintiff found it hard and painful to do her home duties and activities of daily living like cutting vegetables. She also suffered from insomnia due to the pain and anxiety.
122 In Dr Sandhu’s view, the plaintiff’s injury was directly related to her original injury which she sustained at work in January 2010. He considered she was currently unfit for any work duties due to the ongoing pain in her shoulders and her anxiety symptoms.
123 Dr Sandhu noted the plaintiff’s pains and depression were ongoing and suspected that this would continue into the near future. He was concerned about the plaintiff’s mental status which could affect her ability to work. He noted her symptoms had worsened since the insurer had advised the plaintiff was to look for work.
124 Dr Sandhu thought the prognosis was guarded. He considered the plaintiff was currently suffering from bilateral rotator cuff pains and also anxiety and depression.
125 Mr Raleigh, orthopaedic surgeon, saw the plaintiff on referral from Dr Sandhu in September 2010.
126 On examination, the plaintiff had strong impingement signs in her right shoulder and the supraspinatus was grossly weak. He could not find any clinical signs, in fact, at all on the left. The range of motion was normal and there was no impingement. He was at a loss to explain why the plaintiff was sore.
127 Mr Raleigh noted the results of the right shoulder ultrasound and concluded the plaintiff had a full thickness and slightly retracted tear of the supraspinatus, which he thought warranted surgery.
128 On 25 October 2010, Mr Raleigh performed a bursectomy, acromioplasty ligament resection and ostectomy.
129 On 3 May 2011, Mr Raleigh requested permission to perform a left arthroscopy and acromioclavicular joint debridement and decompression, noting there had been twelve months of conservative treatment, including multiple injections and physiotherapy, without success. He noted significant impingement and some acromioclavicular joint changes.
130 When seen in May 2011, the plaintiff was complaining of pain on the left shoulder. She had had two or three injections and the pain was worse than the right had ever been.
131 Mr Raleigh referred the plaintiff to the Royal Melbourne Hospital as WorkCover denied liability for the left shoulder surgery.
132 Mr Raleigh was not aware of the results of that surgery, but in regard to the plaintiff’s right shoulder, he thought she had done extremely well and that it was no longer an issue.
133 The plaintiff was admitted to the Royal Melbourne Hospital on 8 March 2012 for the left shoulder surgery.
134 On the last review post-surgery on 8 May 2012, it was noted that the plaintiff was doing well. She was still having pain in the left shoulder, but feeling no worse and a little better.
135 Bonnie Chen from Hampton Park Physiotherapy Clinic (“the Clinic”) treated the plaintiff from 6 April 2010.
136 On initial attendance at the Clinic on 22 March 2010, the plaintiff had left shoulder problems, with reduced left upper limb elevation and muscle spasm of the left upper trapezius and levator scapulae muscle.
137 A report from the Clinic dated 28 June 2012 referred to an injury to the left shoulder, neck and fractured ribs on the left side in the incident.
138 Mr Eibl, physiotherapist, from the Clinic stated it was reasonable to assume the plaintiff’s employment was a direct cause of her injury, noting that since then she had had a constant functional deficit and pain with her left shoulder. He thought she had no capacity for pre-injury work and was not able to do any work until rehabilitated further.
Investigations
139 The plaintiff underwent a chest and left rib cage x-ray in February 2010, where the major finding was moderate plate atelectasis at both lung bases.
140 There was a nuclear bone scan organised by Dr Nash in March 2010. It was reported that there was no evidence of abnormal activity in the region of the left ribs or left shoulder to suggest a cause for the plaintiff’s symptoms.
141 There was a neck ultrasound within normal limits organised by Dr Nash in March 2010.
142 There was an x-ray of the cervical spine organised by Dr Lim in March 2010, following which an MRI scan was suggested.
143 There was an ultrasound of both shoulders organised by Dr Stabelos in May 2010.
144 It was reported that there was a full thickness tear of the right supraspinatus tendon, 15 millimetres from the long tendon of the biceps and measuring 9 millimetres by 11 millimetres. The other right rotator cuff tendons were intact and showed normal texture.
145 On the left, no tears were identified. Rotator cuff tendons all showed normal texture and no abnormal fluid collection or bursal thickening was identified. Dynamic studies showed no definite impingement on either side, although there was some limitation of movement.
146 There was an MRI scan of the left shoulder organised by Dr Raleigh in September 2010.
147 It was reported there was no definite rotator cuff tendon tear. There were some abnormal T2 signals, suggesting tendinopathy. There was associated subacromial bursitis. There were no obvious features of instability. There was early osteoarthritic change in the acromioclavicular joint. No cause for pain was detected.
The Plaintiff’s medico-legal examiners
148 The plaintiff was examined on the defendant’s behalf by Mr Michael Shannon, orthopaedic surgeon, in October 2013.
149 The plaintiff told him that on the said date, she was operating a big sealing machine which required lifting a large lid overhead and pushing down with it. That work was particularly frequent during November, December and January.
150 On the said date, the machine was not working properly and the plaintiff tried to operate it, pressing manually using both hands. She felt pain in the left anterior chest wall and left collar bone, a hot pain in her right arm and some pain in the back of her neck.
151 The plaintiff was put on WorkCover and told she had a muscular strain. She was advised to rest for three months. There was right shoulder surgery in October 2010 and then surgery on the left shoulder in March 2012.
152 The plaintiff advised Mr Shannon that the surgery was of no benefit and she developed numbness in the third, fourth and fifth fingers of her left hand. She had not worked since the surgery.
153 On examination, the plaintiff burst into tears and said she was not like what she used to be and could not even lift her baby grandchild. She had pain in both shoulders and sometimes the back of her neck. She still had left arm numbness.
154 The plaintiff stated she had no previous history of shoulder problems and pre-injury, she was a fit woman who could work 48 hours a week.
155 On examination, there was moderate restriction of shoulder movement and no evidence of impingement on the right. There was significant restriction of left shoulder movement, particularly abduction and flexion, and the plaintiff had positive impingement signs.
156 There was mild and symmetrical restriction of movement without spasm in the cervical spine.
157 Mr Shannon noted the investigations undertaken.
158 Mr Shannon diagnosed a rotator cuff tear of the right shoulder, aggravation of osteoarthritis in the acromioclavicular joint and possible small left rotator cuff tear. He thought the plaintiff’s condition was stable and further improvement was unlikely.
159 Mr Shannon noted the plaintiff described strenuous and repetitive overhead work in the course of her employment when a sealing machine was not functioning. He thought it was certainly consistent that this could have placed abnormal stress on the plaintiff’s rotator cuff tendons and acromioclavicular joint.
160 Mr Shannon noted the plaintiff achieved a reasonable result from right shoulder surgery and a disappointing result on the left as a result of development of adhesive capsulitis.
161 As this was an AMA assessment of permanent impairment, Mr Shannon made no comment as to the plaintiff’s work capacity.
162 The plaintiff was examined by orthopaedic surgeon, Mr Bruce Love, in August 2015.
163 The plaintiff told Mr Love that she worked on the production line, placing mayonnaise into bags. She had to use a lot of force to perform the sealing task by pushing downward on the bags and, as a result, developed neck and shoulder pain.
164 Mr Love reported that the plaintiff continued to have intense pain in both shoulders and her symptoms were not resolving.
165 Mr Love noted the plaintiff required assistance at home. Her principal symptom was not only pain but generalised weakness in the upper limbs, with some sensory changes in her fingers on the ulnar aspect of the left hand.
166 There was limited shoulder movement on examination.
167 Mr Love thought the plaintiff appeared to have suffered a rotator cuff injury to each shoulder, quoting the May 2010 shoulder ultrasound. He thought her prognosis was poor. He could not conceive of any further treatment likely to make a meaningful difference to her shoulder function.
168 The precise physical organic injury was a rotator cuff tear of the right shoulder and what Mr Love judged to be rotator cuff tendonitis of mild degree in the left. He thought it could reasonably be accepted that the injuries were work-related.
169 Mr Love considered the plaintiff’s impairment was permanent and concluded her physical injury alone rendered her to have a complete absence of work capacity.
The Defendant’s medical evidence
Southern Cross Medical Centre
170 Dr Debicki noted on 17 May 2006 that the plaintiff had low back pain for many years. She also had a problem with the left shoulder but had only a single appointment.
171 X-rays of the lumbar spine were carried out in May 2007.
172 On 26 November 2007, Dr Sandhu noted the plaintiff had chronic low back pain for many years. There were a number of complaints of low back pain in 2008.
173 On 14 July 2014, Dr Sandhu noted the plaintiff had started gym now. She was feeling better and was fed up sitting on the couch all day. Both shoulders were still painful
First Medical Centre
174 On 6 and 18 March 2009, Dr Gu noted right shoulder pain of one year with no medication. On 20 April 2009, Dr Lim noted “right shoulder pain, tendonitis, normal ultrasound and Celebrex prescribed”. Right shoulder pain continued through 2009.
175 On 15 June 2009, Dr Limb noted persistent right shoulder and low back pain for investigation.
176 In July 2009, it was noted that the plaintiff had chronic debilitating right shoulder and neck pain helped with physiotherapy.
177 On 9 February 2010, Dr Gu noted left chest wall pain and upper wall pain with deep breath and press pain. Dr Gu noted that the pain started after a heavy pull at work.
The Defendant’s medico-legal examiners
178 Dr David Barton, consultant occupational physician, examined the plaintiff in April 2011. He noted the history of the incident and subsequent surgery.
179 The plaintiff then advised her right shoulder was 60 per cent better while her left shoulder had not improved. The plaintiff felt her left shoulder movements were limited.
180 Dr Barton noted there was no prior history of any relevant musculoskeletal problems or injuries.
181 On examination, there was a near full range of right shoulder movement. Specific examination of the left shoulder showed no particular areas of tenderness to light palpation and there was near full range of movement.
182 Dr Barton thought there appeared little wrong with the plaintiff’s left shoulder. There was excellent range of movement and no particular areas of tenderness and little to suggest any surgically correctible problem.
183 Dr Barton then thought the plaintiff needed more reassurance and encouragement to return to work because there were no medical contraindications to her doing that. He thought, presumably on the right, the plaintiff had some persistent dysfunction following surgical treatment for a soft tissue injury. He was not sure what was wrong with the left shoulder but it could be related to spending some time in January pressing an apparatus at work. He considered the plaintiff had a capacity to return to a range of suitable duties. He noted motivational factors may be playing a part.
184 Dr Barton subsequently reported he did not believe there was sufficient justification for left shoulder surgery to be undertaken.
185 Having seen a report from Mr Raleigh detailing the plaintiff’s problem with her left acromioclavicular joint, Dr Barton was not sure what the proposed left shoulder treatment had to do with the work performed by her in early 2010.
186 Dr Graham, occupational physician, examined the plaintiff in November 2011. He had a history of the incident and subsequent treatment and symptoms.
187 Dr Graham noted the plaintiff stated her right shoulder did not bother her to any significant extent, although she had some discomfort with weather changes or if she lay on her right side. She described constant left shoulder pain, although she stated that settled for a few hours after physiotherapy.
188 The plaintiff gave no history of problems relating to her chest or shoulders prior to January 2010.
189 On examination, impingement signs were negative in both shoulders. Resisted abduction, external and internal rotation were reasonable in strength and pain free on the right, but on the left all were weak.
190 Dr Graham thought the plaintiff appeared to have a non-specific rotator cuff tendonitis in the left shoulder. He recommended that she commence a strengthening program. In his view, the right shoulder condition was caused by injury at work and the subsequent surgery, but the left condition was less clear, although he would accept that it was related to the plaintiff’s work duties as she described.
191 Dr Graham thought the plaintiff was not currently fit to undertake her pre injury duties and hours and that she had a current work capacity with modified alternative duties. He considered, in addition to her right shoulder problem, the plaintiff appeared to have developed a non-specific rotator cuff tendonitis of which it was difficult to determine the cause.
192 Dr Graham advised that the jobs suggested in the 2011 IPAR report – process worker, packer, machine operator and sandwich hand – were not suitable for the plaintiff.
193 Mr Michael Troy, orthopaedic surgeon, examined the plaintiff in December 2013.
194 The plaintiff told Mr Troy that she had not suffered injury whilst working at Steggles in Western Australia. She told him of the nature of her duties with the defendant which involved lifting bags of 5 kilograms high up to put the ingredients into a machine. She also told him about the incident.
195 The plaintiff’s complaints when examined were pain in the left side of her neck radiating down to the left shoulder. She was not able to move her right shoulder at all and she could not sleep on it. She had limited movement of the left shoulder and it throbbed all the time. There were no pins and needles in either upper limb.
196 The plaintiff had stopped painkillers because they gave her gastric irritation.
197 The plaintiff told Mr Troy that she did not do any heavy housework and she might do some dusting. She shopped with her daughter.
198 On examination, there was right shoulder pain. There was wasting in the left upper limb and forearm. Power, tone and grip were normal.
199 Mr Troy considered the plaintiff had restricted movement in both shoulders, particularly the left. He thought she had capsulitis, verified by the fact that she had no external rotation in that shoulder. He noted the plaintiff’s medical incapacity was contributed to by the nature of her physical work and claimed injury.
200 Mr Troy thought the plaintiff had a current work capacity for light duties and that she would be able to commence rehabilitation and retraining, noting she had excellent English.
201 Whilst he agreed with the 2012 Medical Panel opinion, Mr Troy considered the plaintiff was able to work within guidelines. He thought going out to work and meeting and greeting people would be great psychotherapy for her.
202 Mr Troy re-examined the plaintiff in February 2015. His examination findings were detailed in his report of 23 February 2015. He thought his findings at that time equated to a material change since the Medical Panel’s examination in 2012.[44]
[44]The report relating to this examination was not in the Defendant’s Court Book and was not referred to in closing addresses.
203 Dr Daniels, consultant psychiatrist, examined the plaintiff in May 2014.
204 The plaintiff told Dr Daniels of the incident injury. At the time of that examination, she was taking Mirtazapine (45 milligrams at night).
205 Dr Daniels diagnosed a Chronic Adjustment Disorder with Mixed Depressed Mood and Anxiety. He considered, from a psychiatric perspective, the plaintiff had a current work capacity and that her antidepressant medication was in line with best practice. In his view, she was unlikely to benefit from any further intensive treatment.
206 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on 24 September 2014.
207 The plaintiff attributed her shoulder complaint to an injury suffered during the course of particular duties she performed over a five-month period, 12 hours per shift on a non-stop basis. She also told Mr Jones of the incident. The plaintiff advised Mr Jones that she was told she was suffering from a muscle problem.
208 The plaintiff denied any previous history of left or right shoulder injury or symptoms.
209 The plaintiff reported symptoms of constant right shoulder pain, aggravated particularly by weather. Movement was okay. She had difficulty lifting her grandchildren.
210 The plaintiff reported her left shoulder was worse than the right, with more constant and more severe pain. Shoulder movements were said to be more limited, with additional complaints of weakness, and she also described some numbness affecting the middle, fourth and fifth fingers of her left hand since surgery. The plaintiff also volunteered she suffered from very bad depression.
211 The plaintiff told Mr Jones she relied mainly on frozen food. She managed to go shopping with the assistance of her daughter and could drive, dress herself and generally perform activities of daily living. She could use a light vacuum cleaner, but relied on CGU to fund gardening. She could walk for periods of 20 minutes, but placed her left hand in her pocket. She could stand for between 30 minutes and an hour and sat most comfortably with her left elbow resting on a cushion.
212 On examination, there was slight restriction of cervical movements and subjective diminution of sensation affecting the skin of the three fingers. Grip in the left hand was good, but slightly reduced compared to the right. On the right side, the biceps reflex could not be elicited, but the triceps and supinator reflexes were normal. Movement of both shoulders was restricted.
213 Mr Jones was not able to detect any particular functional symptoms or signs, although the plaintiff volunteered her depressive complaint. He was not able to comment on any psychological reaction.
214 Mr Jones thought, as a result of her bilateral shoulder complaint, the plaintiff was not fit to return to her former job or any work which placed demands on either shoulder. This would include heavy pulling, pushing or use of either arm at or above shoulder height. He thought a lift limit of one kilogram would be appropriate. He considered the most appropriate work for which the plaintiff would be suited would be clerical, but her command of English was poor. He considered she may be suitable for light packaging or processing work with low demands placed on her shoulders.
215 Mr Jones re-examined the plaintiff in November 2015.
216 The plaintiff then advised that her shoulder pain had deteriorated since the previous examination.
217 The plaintiff told Mr Jones she managed activities of daily living, although she had some difficulty washing her hair and doing up her bra. She relied on her daughter to do vacuuming or mopping. The plaintiff was able to manage her shopping and drive a car.
218 On examination, there was symmetrical restriction of shoulder movement.
219 Mr Jones was provided with clinical records of First Health Medical Centre and also Southern Cross Medical Centre.
220 Mr Jones noted there was a reference to her left shoulder problem on 3 June 2006 and arrangements were made for an ultrasound.
221 Mr Jones also noted the plaintiff had a long history of back problems and neck problems of a degenerative nature, and over that period she had been on analgesics and anti-inflammatories.
222 Mr Jones noted on 6 March 2009, there were complaints of right shoulder and neck pain, and an ultrasound of the right shoulder and plain x-rays of that joint were reported as normal.
223 Mr Jones noted the plaintiff suffered from the effects of having surgery and the repairs of tears affecting the rotator cuff tendons on both sides. As a result, she had been left with some residual low-grade shoulder pain and restriction of movement, with the pain level increasing in proportion to the demands placed on each joint.
224 Mr Jones thought the plaintiff’s shoulder condition would preclude her from engaging in any work requiring any heavy pushing, pulling or overhead use of either arm. He was not able to identify any functional symptoms or signs in her presentation.
225 Mr Jones thought there was undoubtedly a degenerative component in the shoulder condition which would be common in people of the plaintiff’s age. He noted tears in degenerating tendons of the shoulders can occur spontaneously, but it would appear from the circumstances of the injury and the available information, that the plaintiff’s work had been a significant contributing factor to her shoulder complaints.
226 Dr Michael Baynes, occupational physician, examined the plaintiff in December 2015.
227 The plaintiff told him that she first had right shoulder problems in 2009 which she put down to repetitively having to use her right arm reaching up. She also told him about the incident.
228 The plaintiff complained of left-sided neck pain with stiffness, particularly on rotation. She had pain in the anterolateral aspect of both shoulders, but reported her shoulder movement was reasonably good. She had difficulty sleeping on both shoulders and denied any arm pain. There was some numbness in three fingers and weakness in the left hand.
229 The plaintiff advised she was able to carry 2 litres of milk, but would be unable to lift or carry a bucket of water. She could drive for about 20 minutes. Her sleep was disturbed and it was uncomfortable lying on her shoulders.
230 The plaintiff’s daughter did most of the housework and the plaintiff spent her days going to hydrotherapy. On Wednesdays, the plaintiff looked after her two grandchildren, aged two and four and a half. The plaintiff denied any particular hobbies or interests.
231 On examination, there was some restriction of cervical movement. There was restriction of range of movement and pain in both shoulders. A neurological examination of the upper limbs was normal.
232 Dr Baynes noted the various investigations undertaken.
233 Dr Baynes thought the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic pain affecting both shoulders. This was originally related to a tear in the right shoulder undergoing surgery. He noted the plaintiff had a long history of persistent right shoulder pain dating back to at least 2008, but noted the 2009 ultrasound did not reveal a tear.
234 Dr Baynes thought it would appear the plaintiff also suffered soft tissue injury affecting the pectoral muscles of the chest wall, and that would fit with the description of the injury.
235 Dr Baynes did not believe there was a left shoulder injury at the time, given the normal radiology and lack of presentation to surgery until two years later.
236 Dr Baynes noted the plaintiff had limited language capacity and no real computer literacy. She had only ever done manual work. In his view, she had limitations in terms of lifting of around 2 kilograms with ongoing pain in both shoulders and restricted movement. He did not believe she had a work capacity given her ongoing pain, restriction of function and lack of transferable skills.
237 Dr Baynes could not nominate any particular suitable jobs. At best, he thought the plaintiff would have a capacity to undertake light process work, but that would need to be non-repetitive with changing of tasks. He did not believe she had a real capacity in the workplace or that she had a capacity for retraining given her lack of transferable skills and limited English.
238 Dr Baynes would have expected the plaintiff’s shoulder symptoms to have settled, although he noted her right shoulder symptoms were quite chronic, with limited information seen on ultrasound. He would expect with those complaints and, with age, there was a likely progression of degenerative change in both shoulders. He believed the ultimate injury to the right shoulder was associated with an aggravation of her pre-existing degenerative change.
239 Given the chronicity, particularly of the right shoulder symptoms, dating back to 2008, Dr Baynes thought it likely the plaintiff would ultimately have had increasing problems associated with the rotator cuff tear which may well have led to surgery. That was less likely on the left side.
The Defendant’s vocational evidence
240 Recovre provided a suitable employment report dated 20 January 2016. The suggested job was hand packer in a commercial scale bakery. The job required packing crates or boxes with bags of buns weighing about 800 grams.
Overview
241 It is accepted that the plaintiff suffered injury to her right shoulder as a result of her work duties. Liability was accepted in relation to that injury and surgery was funded. The plaintiff also received an impairment benefit pursuant to s98C.
242 It is disputed however that the plaintiff suffered injury to her left shoulder and that any such injury was a result of her work duties. Liability for surgery in that regard was denied.
243 In terms of the occurrence of injury, counsel for the defendant relied upon the plaintiff’s initial complaints of a chest wall injury to Dr Nash and no mention by her to him of a left shoulder problem.
244 However, whilst Dr Nash noted the plaintiff’s complaints related mainly to her left chest wall on examination in the three months following the incident, a Certificate of Capacity completed by the plaintiff’s general practitioner in May 2010 listed bilateral rotator cuff syndrome as one of the plaintiff’s complaints. Further, the plaintiff’s treating physiotherapist noted left shoulder complaints on examination in March 2010.
245 As to causation, counsel for the defendant relied upon Dr Baynes’ view that any left shoulder problem did not relate to the work duties.
246 It was conceded however that Dr Baynes was the only doctor who held that view and that Mr Jones did accept there had been an aggravation of the plaintiff’s condition as a result of the work duties.[45]
[45]T51
247 However, Dr Baynes was not provided with the plaintiff’s second affidavit which set out full details of her various work duties. He was also not provided with the September 2010 MRI and assumed, as surgery for the left shoulder occurred sometime after the incident, that it was not related to the plaintiff’s work duties.
248 This application is brought in relation to injury during the period of employment, not limited to an injury on the said date. I accept that the totality of the evidence supports injury to both shoulders during work.[46] There is no real causation argument.[47]
[46]T65
[47]T61
249 I accept the submission on the plaintiff’s behalf that it is common sense that, as a result of the work duties, the likelihood is the plaintiff would have bilateral shoulder pain.[48]
[48]T63
250 Further, the defendant accepted the plaintiff’s claim pursuant to s98C in relation to the left shoulder.
251 Whilst this acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[49] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[49][2006] VSCA 171
252 No such explanation has been forthcoming in the present case.
253 Accordingly, I am satisfied the plaintiff has suffered a compensable injury to both shoulders as a result of her work duties with the defendant in the said period.
254 The plaintiff has been diagnosed as suffering from a tear of the right supraspinatus. This was shown on the initial ultrasound and treated surgically in the first operation.
255 Whilst the diagnosis of the plaintiff’s left shoulder was initially unclear,[50] a range of diagnoses have subsequently been made including rotator cuff syndrome, capsulitis, and tendinopathy or tendonitis.
[50]T59
256 In any event, attention must be focussed on the impairment or loss of body function, not the injury.[51]
[51] Richards v Wylie [2000] 1 VR 79 at paragraph [16] (per Winneke P)
257 Counsel for the defendant conceded the left shoulder surgery was universally said to be unsuccessful.[52]
[52]T58
Credit
258 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[53]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[53](2010) 31 VR 1
259 Counsel for the defendant submitted the plaintiff was an unreliable witness as she had given inaccurate histories to medical examiners, having denied any previous shoulder complaints and having told Mr Troy she had not suffered any injury whilst working at Steggles.
260 However, the plaintiff cannot be criticised for any such histories given, due to her lack of English. Further, she had been cleared fit to work for the defendant in 2007 and any previous shoulder problems had resolved at that time.
261 Whilst the plaintiff at times overstated the extent of her symptoms and level of disability, I found her to be a generally credible witness.
262 Counsel for the defendant relied heavily on the surveillance film, particularly given the acceptance by all doctors of the plaintiff’s level of complaint and restriction.[54]
[54]T55
263 The film showed the plaintiff raking and sweeping leaves from the footpath at the front of her property. In particular, it showed her waving the broom around overhead to brush down leaves or bark from the tree.[55]
[55]T52
264 However, the raking and sweeping was for a short period only and not overly vigorous, and below shoulder height. Whilst she was shown using the broom overhead, this activity was not sustained and consisted of maybe four or five swipes with the broom to brush bark off a tree.
265 I accept that film was only a snapshot of the plaintiff’s daily activities and did not indicate a level of activity inconsistent with that described by her.[56]
[56]T66
266 Whilst it was submitted the plaintiff exhibited no problems walking, footage of her walking was short and did not exceed the twenty minutes she told Mr Jones gave her difficulty.
267 The film was not provided to the defendant’s medico-legal examiners for comment. No doctor had labelled the plaintiff as being other than genuine and their opinions stood.[57]
[57]Church v Echuca Regional Health (2008) 20 VR 566
Pre-existing condition
268 Counsel for the defendant properly conceded this was not an aggravation case where the principles in Petkovski v Galletti[58] apply. Whilst the plaintiff had some right shoulder complaints that were detailed in early clinical notes, I am not satisfied that she was suffering any problems interfering with her work or daily activities prior to her injury with the defendant.[59]
[58] [1994] 1 VR 436
[59]T49
Pain
269 Maxwell P, in Haden Engineering v McKinnon,[60] commented that the evidentiary basis or the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[61]
[60]Supra
[61](Supra) at paragraph [11]
270 The plaintiff continues to suffer constant, sharp stabbing left shoulder pain, worse with activity. She experiences pain and numbness in three fingers of her left hand. There is ongoing pain and discomfort in the right shoulder, also activity related. Often, she has pain at the bottom of her neck.
271 Whilst there has been some improvement in the plaintiff’s right shoulder after the first operation, I accept that she has some ongoing pain and restriction, but not to the same extent as that experienced in her left shoulder.
272 I accept the plaintiff’s shoulder injuries significantly limit her physical activities. Movement of both shoulders is restricted and she has reduced left arm strength. She has difficulty performing activities involving pushing, pulling or lifting.
273 These restrictions have been confirmed by all examiners.
Treatment
274 The plaintiff’s treatment post injury has been detailed above, including surgery on both shoulders, injections to the left shoulder, physiotherapy, hydrotherapy and ongoing pain medication.
Work
275 The plaintiff attempted a return to work on light duties after the said date but had further flare ups and was unable to cope, finally ceasing work in October 2010 prior to the first operation. She has been incapacitated for all work due to her arm condition since that time and continues in receipt of weekly payments of compensation.
276 I am satisfied that because of her ongoing shoulder pain and restrictions, the plaintiff is clearly unable to return to unrestricted physical work of the type she performed prior to the said date.
277 The consensus of medical opinion is that the plaintiff is not fit to go back to her old job or perform any manual work.[62]
[62]T66
278 The Medical Panel, most recently in October 2015, found the plaintiff had no current work capacity as a result of bilateral shoulder dysfunction and an Adjustment Disorder.
279 Whilst the Panel and Dr Sandhu both considered the plaintiff’s psychiatric condition was relevant to the plaintiff’s current presentation, in 2014, Dr Sandhu thought the plaintiff’s shoulder condition alone resulted in an incapacity for suitable employment.[63]
[63]T67-68. This view was shared by most medico-legal examiners.
280 Further, psychiatrists who have examined the plaintiff for the purposes of this application do not consider that she is incapacitated for work on psychiatric grounds. It was conceded by counsel for the defendant that both Dr Daniels and Dr Das considered there was no psychiatric impairment for work.[64]
[64]T56
281 Whilst Recovre suggested a packing job in a bakery as being suitable employment for the plaintiff, I do not accept that she could perform this task on a reliable basis for more than a few hours a day because of her bilateral shoulder pain and also the numbness in the fingers of her left hand.
282 The plaintiff has limited English. She has no computer literacy and has only ever done manual work. The lifting limits of one or two kilograms imposed by Dr Baynes, Mr Jones and Mr Troy effectively mean the plaintiff has no capacity for any job involving lifting. Further, the plaintiff would be unable to do any work involving pushing, pulling or use of either arm at or above shoulder level.
283 In my view, the plaintiff does not have a work capacity given her ongoing pain, restriction of function and lack of transferable skills. That loss of employment capacity is a serious consequence.
284 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
285 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
286 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
287 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
288 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
289 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[65]
[65]See Barwon Spinners & Ors v Podolak (supra)
290 I was not addressed as to the plaintiff’s without injury earnings figure but it would seem, during the relevant legislative period, this figure would be in the range of $40,000.[66]
[66]T45
291 Having found the plaintiff does not have a capacity for suitable employment, I am satisfied the plaintiff has suffered the requisite loss of 40 per cent, and I am satisfied this loss is likely to continue into the foreseeable future.
292 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
293 In my view, the plaintiff does not have a capacity for retraining given her lack of transferable skills and limited English.
294 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
295 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity.[67]
[67]See for example Acir v Frosster Pty Ltd [2009] VSC 539 (per Forrest J) and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 (per Redlich JA and Beach AJA)
296 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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