De La Cruz v Carechoice Aust Pty Ltd

[2017] VCC 171

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-05743

ELENA DE LA CRUZ	Plaintiff
v
CARECHOICE AUST PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2017
DATE OF JUDGMENT:	7 March 2017
CASE MAY BE CITED AS:	De La Cruz v Carechoice Aust Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VCC 171

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment to the spine – bilateral shoulder impairment – impairment of the left shoulder – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Watts v Rake (1960) 108 CLR 158; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Richter v Driscoll [2016] VSCA 142; Giankosv SPC Ardmona Operations Ltd [2011] VSCA 121; Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232

Judgment:                Leave granted to bring proceedings for damages for pain and suffering.  Leave application in relation to loss of earning capacity dismissed. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A E L MacTiernan	Grace Placencio, Davies & Co Lawyers
For the Defendant	Mr J L Batten	IDP Lawyers

HER HONOUR:

1This 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 in the course of her employment with the defendant[1] from December 2008 until 12 June 2012 (“the said date”).

[1]Transcript (“T”) 2

2 Counsel for the plaintiff indicated the main application pursuant to s134AB(37)(a) related to the spine. There was also an application relating to bilateral shoulder impairment involving a loss of manual dexterity and a separate left shoulder impairment.[2]

[2]T1

3       It was not submitted, in the alternative, that there was a Chronic Pain Syndrome pursuant to ss(c).[3]

[3]T5

4The 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).

5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

7The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.

8By s134AB(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, can fairly be described, at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.

9I 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.

10Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

11Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

12Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

13Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

14I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[4] and Grech v Orica Australia Pty Ltd & Anor[5] in reaching my conclusions.

[4](2005) 14 VR 622

[5](2006) 14 VR 602

15The plaintiff relied upon two affidavits and gave viva voce evidence.  She was cross-examined.  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

16      The plaintiff is aged forty-three, having been born in El Salvador in 1963.  After she completed high school, the plaintiff undertook secretarial studies and worked as a secretary between 1982 and 1983.

17      The plaintiff then married and had children in 1984 and 1985.  She immigrated to Australia the following year.  She had further children in 1994 and 1997.

18      In 1996, the plaintiff completed a three-month practical home attendant course for migrants at Holmesglen TAFE.  In 2006, she worked for three months part time as a cleaner. 

19      In 2008, over six months, the plaintiff studied Pathway to Personal Care Attendant (PCA), a Certificate III in Personal Care Attendant Course at Chisholm TAFE.

20      Before the plaintiff started work with the defendant in December 2008, she had had no problems with her neck, back or shoulders.  She had a fall at Safeway a couple of months earlier and had some back pain, but recovered after a couple of days.[6]

[6]T58

21The plaintiff confirmed that she had suffered anxiety before working with the defendant and she was prescribed antidepressants.  At that time, she was anxious, wanting to do something else, having had her children.[7]

[7]T57

22The plaintiff was contracted to work fifteen hours a week for three hours, Monday to Friday for the defendant.  Sometimes, she worked three hours on a Saturday. 

23      In the financial year 2008-2009, the plaintiff earned $5,452; in 2010, $17,837; in 2011, $22,628 and in 2012, $19,322.

24The plaintiff’s main work involved looking after “Michael” at Regis Nursing Home.  At other times, at the defendant’s request, she also worked with other clients.  The plaintiff walked to work at St Regis and was very fit.[8] 

[8]T30

25The plaintiff agreed the PCAs had the job of bathing and showering Michael.  Most of the time she dressed him.  She was told by the defendant that she needed to put him comfortably in the chair and dress him.  PCAs were in a hurry all the time.[9]

[9]T32

26The plaintiff agreed she did stretches with Michael and sensory stimulation using different smells.  She put him in the bath and sometimes dressed him, but sometimes the carers did so.  She helped transfer Michael.[10]  At times, she used the lifting machine.[11]

[10]T30 and 35

[11]T35

27The plaintiff always had to help carers transfer Michael to the chair.  She was the only one who knew what to do with him as there were different carers all the time and they needed her help.[12]

[12]T36

28      After about a year working with Michael, the plaintiff started to get neck and back pain which was not severe and she did not take any time off work.

29The plaintiff agreed that when she attended her general practitioner in November 2009, her complaints included back pain.  A couple of days later, she attended, reporting dizziness, headaches and neck aches.  A CT scan of her brain and neck were ordered in November 2009.  Whilst the plaintiff deposed to these investigations being undertaken, she could not remember them.[13]

[13]T58

30      During 2010, the plaintiff experienced intermittent pain in her neck and back which she believed was due to manoeuvring Michael at work.  In an annual staff performance review in 2010, she described the greatest challenge in her role was manual handling of Michael who required two people to transfer him.[14]

[14]T85

31      In 2011, the plaintiff started to experience more mid and low back and left shoulder pain.  In particular, on 8 June 2011, when helping the physiotherapist with Michael’s stretches, the plaintiff experienced mid to low-back and left shoulder pain.[15]

[15]Detailed in a carer note dated 9 June 2011.  Problems with transferring Michael also detailed in a carer note of 27 March

32      The plaintiff attended her general practitioner and had two days off work.  Investigations of her back and neck were organised.  The plaintiff had twelve physiotherapy sessions funded by the defendant and she underwent a spinal x-ray in September 2011. 

33      Whilst the plaintiff’s Claim for Compensation dated 17 October 2011 was under consideration, the plaintiff paid for her own chiropractic treatment. 

34During 2011, the plaintiff attended her general practitioner multiple times complaining of mainly thoracic spine pain.  She also attended physiotherapist Mr Abbas, who advised that her pain was due to arthritis in her back. The plaintiff then took Panadol.

35In the six months before the said date, the plaintiff continued working full time with no restrictions and had no time off work.  She made complaints about problems transferring Michael but nothing was done.[16]

[16]T63

36The plaintiff confirmed she reported an incident on 10 May 2012 when she was bullied by a fellow worker when caring for Michael.  She previously had problems with that worker.[17]

[17]T37

37The plaintiff agreed that after this incident, she felt anxious and distressed.  She denied she decided to leave the defendant’s employ thereafter.[18]

[18]T39

38      On the said date, there was a significant incident involving Michael.  Whilst sitting in his tilt chair, he fell forward, causing the plaintiff (who was squatting at his side) to put her left hand up to his chest to stop him falling on her.  She then pushed him back into position with both hands whilst her torso was twisted (“the incident”).[19]

[19]T83 – the plaintiff demonstrated the mechanism of the injury

39Following the incident, the plaintiff complained of pain in her neck, back and shoulders, particularly the left shoulder, and numbness in the left hand.  Later that day, she attended the Dove Street Medical Centre where she told her doctor that her back and shoulders were very painful.  The following day, the plaintiff felt something serious had happened and she went back to her doctor and asked to be sent for an MRI scan.[20]

[20]T44

40The plaintiff’s real problem started on the said date.  Initially, the worst pain was the burning pain at the base of her back which went down into her buttocks and down her legs, especially the left.  She felt burning in her shoulder, neck, low back and leg.[21]  Her left shoulder was her most painful.[22]

[21]T67

[22]T82

41The plaintiff’s daughter helped her complete the incident report on 14 June 2012.  When doing so, the plaintiff was in pain.[23]  Her daughter did not understand what the plaintiff told her as the plaintiff felt pain straight away.  Three days later, a Claim for Compensation was completed, setting out injuries to the back, thoracic spine and shoulders.[24]

[23]T41

[24]This claim was accepted on 29 June 2012

42      About a month after the said date, whilst at Melbourne Airport, the plaintiff fell onto her right knee, as her left leg was very weak.  The fall caused extra pain in her right shoulder.[25]

[25]T26

43      The plaintiff agreed that she discussed her problems with Dr Pavasaris.  When she saw him on 28 July 2012, she told him her right knee was better after the airport fall.  Her main problem at that time was pain in the base of her neck and mid back.

44      A couple of months after the said date, the plaintiff started to get depressed, as she was not recovering.  She took Tramadol, Endep and OxyContin.  She was then referred to Professor Teddy, neurosurgeon, who did not think she needed surgery.  The plaintiff later received similar advice from another specialist, Dr Chan, a neurosurgeon at The Alfred, in May 2013.

45      The plaintiff underwent an MRI scan of the thoracic and cervical spine in June 2012 and the following month, commenced physiotherapy with Mr Abbas.  Later that month, there was another thoracic and lumbar spine MRI scan.

46      On 7 August 2012, the plaintiff was seen by Professor Teddy, neurosurgeon, in relation to her neck and back complaints.  He suggested medication and stretches and recommended pain management.[26]  Later that month, a further MRI scan of the plaintiff’s cervical spine was organised. 

[26]T35

47      On 30 October 2012, the plaintiff was assessed by Dr Corry De Neef, pain physician, for a pain management program.  She considered the plaintiff’s lack of English would be a significant problem for her. 

48The plaintiff agreed that she complained to Dr De Neef of dizziness, poor sleep, early waking, numbness in her feet, an inability to stay asleep, very poor concentration and headaches.[27]

[27]T49

49      The plaintiff undertook a three-week assessment, which she completed on 8 March 2013 at Precision Ascend.  She learnt skills to cope with pain whilst in the pain management program and had a variety of other treatments.[28]

[28]T50

50      The plaintiff was first assessed by Recovre on 28 March 2013.  There were a number of meetings in 2014.

51      In 2013, the plaintiff started to see psychologist, Lorraine Nicholson.  Ms Nicholson helped the plaintiff cope with the changes and loss in her life.  The plaintiff ceased this counselling in 2014.

52      Ultrasounds were conducted of both shoulders in February and March 2014 and an x-ray of the neck and shoulders in March 2014.

53In early 2014, Pilates treatment made the plaintiff’s left shoulder and left side pain worse.  This exercise was stopped after a discussion with her physiotherapist.  The site and nature of the plaintiff’s pain at that stage had not changed.  The pain was in the inside of her left shoulder, radiating down to the front of her chest.[29]

[29]T70

54      On 2 April 2014, the plaintiff was referred by Dr Pavasaris to Mr Garry Grossbard, orthopaedic surgeon.  He injected her left shoulder with local anaesthetic and steroids.  This injection helped, but only for a short time.  Her shoulder was then very painful again.[30]

[30]T71

55      In June 2014, there was an MRI scan of both shoulders.  The following month, the plaintiff saw Mr Craig Donohue, orthopaedic surgeon, in relation to her shoulder injury.  He recommended hydrodilatation for the left frozen shoulder.  The following month, a CT-guided left shoulder hydrodilatation was carried out.  Even after that procedure, there were still problems with the left shoulder and there was not too much movement and it was more difficult to move than the right.[31]

[31]T72

56Following examination in October 2016, Mr Polke suggested the plaintiff have an a spinal injection but her general practitioner advised the plaintiff hydrotherapy would be more appropriate.[32]

[32]T85

57The plaintiff has hydrotherapy two or three times a week.  She sees the physiotherapist every two weeks and takes Palexia (tramadol) for strong pain in her back and shoulder.[33]

[33]T78

58The plaintiff remains under the care of Dr Pavasaris, who is now in Rye, and continues to prescribe her current medication.[34]

[34]T45

59The plaintiff continues to have pain in her neck, back and shoulders.  Her worst pain is in her back.  That pain goes down her left leg, sometimes into her foot.  Her next worst pain is in the left shoulder, extending into the front of her shoulder and up into the left side of her neck.  The right shoulder is the least painful.

60The plaintiff currently takes two Palexia tablets at night for the strong pain in her back and shoulder.[35]  She also takes Voltaren in weekly bursts for her left shoulder pain and uses cream on her neck, back and left shoulder at times.  She takes Panadol or Nurofen for headaches.

[35]T78

Work since the incident

61      As a result of her injuries, the plaintiff ceased work on 12 June 2012 and has not worked since. 

62      The plaintiff’s son used to work at Villa Maria and, in 2010, he asked if there were any vacancies for her to work as a PCA.  In March that year, the plaintiff applied for work because she wanted more hours but was told there were no vacancies.  She advised she was interested should a position become available.

63      The plaintiff knew she would never be able to return to work as a PCA as the work was very heavy and Michael was awkward to manage.  Her son made a further request of Villa Maria in 2011, when it was indicated it would be taking on further staff at the extension of its Wantirna premises and would be hiring in mid 2012.[36]

[36]T23

64In early June 2012, the plaintiff again applied for work at Villa Maria as a PCA.  Her application was confirmed in an email from Villa Maria dated 6 June 2012.  After the incident, she received a telephone call from an agency representing Villa Maria whom she advised she was not fit to attend an interview.

65The plaintiff could not recall applying for further positions at Villa Maria in July and August 2012 but it was possible that following the incident, she re-applied, as she did not really know what was wrong with her and she hoped she would get better.  She was very interested in continuing work in the future but she was “not sure what was happening in [her] body”.[37]

[37]T24

66The plaintiff did not go back to the defendant because she was in pain and feeling sick. The defendant tried to get her back to work at Cranbourne.  The first two years after she left, the plaintiff was really in pain and could not work.  Her shoulder was frozen and painful.  She told the defendant she could not do an administration job in the office because she was feeling very bad.  If she felt better in the future, she would accept the job.[38]  Further, she could not do the job as she “could not walk a step” and her English was not good enough to work in the office job.[39]

[38]T30

[39]T31

67The plaintiff agreed that one of her problems with the work she was offered by the defendant was that she could not walk to the workplace.  Her legs were very weak and walking increased pain in her mid and low back.[40]

[40]T51

68      The plaintiff’s general practitioner, Dr Williams, had discussed with her the possibility of her working as a secretary, but the plaintiff had last done such work in El Salvador and her English skills were really not that good.  She would also have problems sitting for prolonged periods and knew that that was a problem because she was having difficulty sitting to read.[41]

[41]T81

69      Dr Williams had spoken to the plaintiff about the possibility of work making sandwiches.  While she could make a sandwich, the plaintiff could not stand at a bench making one hundred and fifty sandwiches while looking down.  At that stage (mid 2015), her ability to cook normal meals was restricted and she had difficulty carrying kitchen utensils.

70      The plaintiff attended a seminar on reconnective healing in October 2014.  This was a treatment she had undergone which she felt gave her more energy.  She did not know whether she would be able to undertake a job in that field but she wanted to do something to help herself feel better emotionally and physically.  She had always wanted to help other people and was very involved in the church and enjoyed her job at the nursing home.

71      On 6 October 2014, the plaintiff commenced a six-month basic computer literacy course but was unable to complete it because of pain and her lack of English skills.  She attended the course for maybe a month or so.  She did not understand what was being taught because her English was not that good and her neck was painful sitting at the computer.  She had discussed this with her doctor, who advised her it was better for her to study English.[42] In November 2014, the plaintiff underwent language assessment with AMES.

[42]T76

72      In December 2014, weekly payments ceased.  The following month, Recovre closed its file at the request of the Victorian WorkCover agent.  The plaintiff was then being certified unfit for work by her general practitioner.

73The plaintiff paid to attend an English course at Cranbourne Community Centre last year.  During the course, she had problems with her concentration due to her pain but she tried to listen.  She attended for about eight weeks.  She did not know how long the course went for.[43]

[43]T88

74The plaintiff has looked for receptionist and secretarial work on the internet.  She received only one response to her ten internet applications.  That response was only thanking her for her application.[44]

[44]T29

75The plaintiff produced a list of the jobs she had applied for online in secretarial and office type work.[45]  If she had been offered one of those jobs and she could manage with her pain, then she would be very happy to accept it.  [46]

[45]T80

[46]T29

76After the plaintiff was unable to get a job on the internet, she was advised by Recovre to stop looking for work and to look for office or community service in the Spanish community; however, she had not done any office work since she was in El Salvador.[47]

[47]T81

77After the case has finished, if there was an acceptable job of light duties that the plaintiff could manage with her pain, “then of course” she would try to go back to work, “because it is good for everybody, for [a] healthy mind, healthy spirit to do something”.  She would like to improve her English and continue to apply for a job.[48]

[48]T79

Activities  

78      When she was younger, the plaintiff was a very good dancer and taught traditional dancing in the community as a volunteer.  However, she has been unable to do any traditional dances since June 2012.  Thereafter, she has only done basic dancing at a couple of family functions.

79      Prior to her injury, the plaintiff was very houseproud and she enjoyed gardening.  She now does the light housework and cooking and her daughter does the heavier cleaning.  The plaintiff’s husband has lowered the clothesline so she can reach to hang the washing.  When shopping, the plaintiff carries the lighter bags and she has help pushing the trolley.[49]

[49]T78

80      The plaintiff no longer socialises to her pre-injury level due to her emotional and physical problems. 

81      The plaintiff can no longer help her elderly neighbours with tasks such as putting out their bins.  She becomes sad because of her inability to do things at home. 

82      The plaintiff has a lot of problems with her sleep due to back and shoulder pain.  Because of lack of sleep, she is really tired the following day.

83      Due to the injuries, the plaintiff has difficulty with intercourse which has caused problems in her relationship with her husband.

Video surveillance

84There was 8 minutes and 6 seconds of video taken on 11 June 2016 commencing at 12.19pm.[50]

[50]T55

85Prior to the film being shown, the plaintiff was asked in detail about how far and for long she could walk.  She walks less than before her injury because of her leg pain.[51]  Depending on how she feels, she walks to the coffee shop, where she sometimes sits down and has a coffee.[52]

[51]T52

[52]T53

86The plaintiff agreed that she would be able to walk for 25 minutes to Centro Shopping Centre, walk around there for 10 minutes and then sit for about 40 minutes having a coffee.  If she had a lot of pain, she would not go for a walk.[53]

[53]T56

87The plaintiff explained she was shown in the film rubbing her left buttock because “it sometimes feels a bit of pain and a bit weak”.[54]

[54]        T85

88Whilst giving her evidence over an hour-and-a-half, the plaintiff often stood and stretched in the witness box.[55]

[55]T54

The Plaintiff’s medical evidence

Treating doctors

89Dr Pavasaris has provided a number of reports, the most recent dated 25 November 2016, which focused on the need for ongoing treatment.

90In that latest report, Dr Pavasaris advised that physiotherapy and hydrotherapy continued to be required and that the plaintiff would deteriorate without a well-structured exercise program. Dr Pavasaris noted the plaintiff’s restrictions in her ability to perform household activities. 

91In earlier reports, Dr Pavasaris set out the principal diagnosis was chronic spinal pain, consistent with causation by disc pathology and partly fibromyalgic in quality.  He noted some of the symptoms the plaintiff described were not characteristic of mechanical pain.  She also had rotator cuff tendinopathy of both shoulders.

92As of July 2016, Dr Pavasaris believed the plaintiff was incapable of returning to her pre-injury duties as a PCA for an indefinite period.  He also believed she would remain unfit to do any form of manual duties, even light, because of the underlying pathological changes in her spine and shoulders which had now become symptomatic and would be aggravated by such work.

93In terms of non-manual work, Dr Pavasaris believed that factors such as age, work experience and language skills would mitigate against the plaintiff to the extent that he considered she had no current work capacity at all, which would continue indefinitely.

94Dr Pavasaris reported that the plaintiff faced barriers such as English language and lack of alternative vocational skills.  Noting the jobs suggested by Recovre, Dr Pavasaris commented that Dr Williams had expressed the view that the plaintiff would require one year of extensive English language training, noting that she had previously worked as a receptionist thirty years ago in El Salvador and she would need to vocationally retrain, noting also that she did not drive.

95Dr Pavasaris believed that the plaintiff does not have a capacity for any suitable work but she would be fit to attempt retraining.  This would need to be for some form of administrative or clerical type work and she would need to do additional English language study.  He noted the training would probably need to be more than part time.  He believed the plaintiff had no current capacity to work in the open labour market. 

96In a letter of referral to a neurosurgeon in August 2012, Mr Abbas, physiotherapist, noted the plaintiff had a lumbar disc bulge with mild referred symptoms of her left leg and a cervical disc bulge which gave her persistent pain.  Further, ongoing symptoms in the thoracic spine needed to be fully diagnosed. 

97In September 2012, Mr Abbas advised Dr Pavasaris that he was concerned about the plaintiff as she had had a mental breakdown that day in a session, triggered by a severe episode of neck pain.  He was not sure whether she was physically or mentally well enough to manage much at that time.

98As of February 2015, Mr Abbas thought the plaintiff was currently unfit for all duties.  He doubted that, despite treatment, she would improve enough to be able to return to meaningful employment.  In his subsequent reports, he did not comment on work capacity.

99In August 2016, Mr Abbas advised that the plaintiff had remained stable.  She had fluctuating lower back, neck and shoulder pain which gave her persistent pain, and received symptomatic relief from physiotherapy.

100Mr Abbas thought the plaintiff suffered from chronic lower back, neck and shoulder pain.  He regarded her bilateral shoulder pain had settled somewhat and she was now able to use her arms to do daily tasks. The plaintiff’s chronic lower back and neck pain remained the issue.  She could complete ADLs with difficulty.

101In the December 2016 report, Mr Abbas recommended eighteen treatments for 2017 to enable the plaintiff to manage her symptoms.

102Justin Moar, physiotherapist, wrote to Dr Pavasaris in March 2013, with the plaintiff having completed the Precision Ascend three-week pain management course.  He suggested that funding be sought for a gym course.

103The plaintiff attended at the Neurosurgery Outpatients at The Alfred hospital on 29 May 2013.

104The plaintiff was then noted to have had neck pain and left-sided brachialgia for about three months, related to her labour intensive job.  She complained of lower back and upper thoracic pain, burning in nature, radiating to the left arm.

105The plaintiff’s MRI scans were discussed with consultant neurosurgeon, Mr Chan.  He thought she would benefit from a neurological review of her left arm pain and weakness, and referral was made to see one of the neurologists in the Outpatients Department.  In the meantime, the plaintiff was encouraged to continue with physiotherapy and analgesia.

106The plaintiff was first seen by orthopaedic surgeon, Mr Donohue, in July 2014 in relation to her left shoulder pain.

107The plaintiff then told him that she had multiple injuries to her neck, back and shoulders while at work.  She described constant pain in her neck and down her left arm.  There was more pain in the left than the right shoulder.

108On examination, the plaintiff appeared depressed.  Mr Donohue reassured her that she did not need to see an orthopaedic surgeon.  He advised her that she had a frozen shoulder and recommended a hydrodilatation, which was performed on her left shoulder on 13 August 2014.

109In August 2016, the plaintiff was seen again for ongoing problems in both shoulders.

110Mr Donohue then noted the hydrodilatation had improved the left shoulder but it was still not normal and the plaintiff had widespread pain, more in the left shoulder than the right.  There was also pain in the neck and left arm and she continued to describe lower back pain and also pain down her left leg.

111On examination, the plaintiff had reasonable movement in both shoulders, with abduction and flexion to ninety degrees.  She was globally sore.  There was right shoulder abduction and flexion to one hundred degrees.  She had a stiff neck but no hard neurological signs or symptoms.  There was stiffness in her lumbar spine.

112Mr Donohue explained to the plaintiff that no surgery would help her multiple joint problems and he encouraged her to continue with physiotherapy and hydrotherapy until she lost weight.

113Mr Donohue noted there had been an improvement in both shoulders since the earlier examination and the hydrodilatation.  There had been no improvement in the plaintiff’s spinal problems.

114Mr Donohue thought the plaintiff did not have a current work capacity to undertake her pre-accident work as a carer.  He believed she had no work capacity for any other work given her age, education, skills and limited English language.  He thought this was likely to continue indefinitely.

115Mr Donohue thought the plaintiff did have a capacity for alternative work and/or retraining but this would involve English language training as well as retraining for a desk or administrative type job and she would clearly not be able to return to work as a carer.

116Mr Donohue considered the bilateral shoulder problems clearly affected the plaintiff’s work capacity.  She was unable to work as a carer and unable to do any job requiring physical strength in the upper limbs.  Mr Donohue noted the plaintiff’s spinal problems clearly affected her work capacity and she was not able to perform the physically demanding activities.  Because of her left shoulder, she was unable to work as a carer and unable to work in any job requiring upper limb strength.

117In conclusion, Mr Donohue thought it clear the plaintiff will not ever be able to return to work as a carer, noting she grew up in El Salvador and left school at the age of eighteen and had limited English skills.  She now had constant pain in both shoulders, her neck, left arm and leg and lower back.  She required ongoing pain management through her local doctor and benefits from occasional physiotherapy and hydrotherapy.  He thought that in an ideal world, she would benefit from training and retraining to perform a clerical or desk job.

Medico-legal evidence

118Dr Robert Gassin, musculoskeletal pain specialist, examined the plaintiff in August 2016.

119The plaintiff then reported pain across the neck and upper back, as well as throbbing pain in the mid thoracic region, radiating bilaterally on activity and also radiating to the lower back into both buttocks, the left leg and knees, as well as the sole of the foot.

120On examination, the plaintiff moved tentatively.  She had a significantly decreased range of left shoulder movement in abduction and flexion.  Right shoulder movement was full.  She had a slightly decreased range of cervical spine movement.  Her shoulder external rotation was limited bilaterally and she had a very limited range of low-back movement.

121There was a global weakness of all muscle groups in the left upper limb and lower limb.  There was a decreased sensation in the left leg in a stocking-like distribution and increased sensation in a patchy distribution in the upper limb of a non-dermatomal nature.  The plaintiff was noted to have widespread myofascial tenderness to palpation of the trunk, neck and limbs.

122Dr Gassin thought the plaintiff suffered soft tissue injuries to the neck, thoracic and lumbar spine and paraspinal structures, as well as both shoulders, as a result of the incident.  He suspected some of the ongoing neck and upper back symptoms arose from changes to the mid to lower cervical disc noted on MRI.

123Dr Gassin thought bilateral shoulder pain was likely to be at least partially accounted for by subacromial bursitis, supraspinatus, tendinopathy and the partial tears noted on the MRI scans.  He noted the specific structures accounting for the plaintiff’s low back and thoracic pain had not been clearly diagnosed.

124In addition, over time, the plaintiff had developed symptoms and signs suggestive of a widespread Myofascial Pain Syndrome.  Dr Gassin noted the condition was often a sequelae of soft tissue injuries and was thought to be due to desensitisation of the somatosensory nervous system.  He thought the plaintiff also reported she developed depression and anxiety.  However, that was out of his field of expertise. 

125Dr Gassin considered that the plaintiff was likely to suffer from ongoing widespread pain and associated disability for the foreseeable future and treatment should focus on encouraging self-management.

126Dr Gassin thought the plaintiff did not currently have a capacity to perform work of a physically demanding nature.  He noted her poor command of English precluded her from office type work.  In his opinion, her likelihood of obtaining further employment was very limited.

127Dr Gassin thought the following physical work restrictions were appropriate:

·no lifting over 5 kilograms

·no repetitive bending or twisting

·no work below waist height

·no work above shoulder height

·avoiding sitting for more than twenty minutes and standing for twenty minutes.

128Dr Gassin concluded the plaintiff’s symptoms had a physical and organic basis.

129In a supplementary report, Dr Gassin advised that the bilateral shoulder injury and the spinal injury in isolation affected the plaintiff’s capacity for work. 

130Dr Gassin noted that it was difficult to ascertain the number of hours the plaintiff would be able to work with the restrictions on her back.  Any attempt to return to work should initially be limited to three hours daily.  In terms of her shoulders, her work capacity would be restricted to five to six hours daily with a view to adjusting her hours, depending on how she coped with six hours a day.

131In terms of the bilateral shoulder injury, it was difficult to ascertain the number of hours the plaintiff would be fit for work.  However, any attempt to return to work should be for no more than three hours a day 

Vocational evidence

132     Mr Brian Donnelly, vocational consultant from Donwill Consulting, carried out a vocational assessment in November 2016.

133     Mr Donnelly concluded that with her existing qualifications, skills, experience and injury physical limitations, the plaintiff had no current capacity to return to her pre-injury employment or to any similar employment, and had no capacity to undertake any type of occupational retraining.

134     Mr Donnelly noted that the post-injury report of the plaintiff’s self-reported restrictions indicated that she is not able to engage in any significant manual labour, not able to lift more than light weights, not able to engage in any significant bending, stooping and/or twisting and is not able to sit or stand for more than short periods of time.

135     The plaintiff reported to him significant impairment in concentration and short-term memory, evidenced most recently in her inability to participate in English as a second language course, which she could only do for two weeks.  Similarly, she tried a six-month course in basic computer literacy but was only able to complete three weeks as she was not able to concentrate. 

136     Mr Donnelly noted the plaintiff had limited skills in conversational English and rudimentary reading and writing skills in English.  This level of proficiency meant she would be best suited to work of a non-manual nature.  Unfortunately, her present physical restrictions meant she would be unable to perform the physically demanding work she previously did in Australia.

The Defendant’s medical evidence

137The defendant tendered a number of reports from the plaintiff’s treating practitioners.

138Dr Pavasaris wrote to the plaintiff on 8 October 2012, confirming a recent meeting with the plaintiff’s WorkCover case manager, noting that there was a return to work plan of 28 September 2012 for work at the Clayton premises.

139The plaintiff’s response to this offer was that she felt she was unable to travel to work, which would include walking for 10 minutes, catching a train, and bus.  She suggested taxi transport but understood that that was not available.  As far as the suggested tasks were concerned, the plaintiff stated she may give it a go, but believed she would not be able to manage.

140Dr Pavasaris thought that the plaintiff felt pressured, and suggested the return to work should be deferred, given the plaintiff could not travel to work in any case.  The plaintiff advised that her pain would need to improve by 30 per cent before she could try.

141Dr Williams referred the plaintiff to Mr Grossbard, orthopaedic surgeon, in April 2014.  In the history, he noted that the plaintiff suffered injuries to her neck and spine, but also pain in both shoulders from the time of the incident.

142Mr Grossbard arranged a plain x‑ray of the plaintiff’s neck and shoulders which confirmed the only abnormality on plain x‑ray was acromio­clavicular joint changes, while in the cervical spine, there was largely C5‑6 degeneration with some loss of the intervertebral foraminal size on the right side at C5‑6.

143Mr Grossbard advised Dr Williams he was a little confused about the diagnosis, noting he had injected the subacromial space on the left with some local anaesthetic and steroids.  That injection gave immediate relief of many of the symptoms, suggesting there was in fact rotator cuff pathology in addition to the neck pain.  He therefore suggested the plaintiff’s symptoms were a combination of rotator cuff pathology and cervical spine pathology.

144Mr Grossbard noted it was difficult to suggest the injury was responsible for both the rotator cuff tears.  He suspected there was probably an element of pre-existing degenerative tearing of the rotator cuff which had been made symptomatic or extended by the incident. 

145Mr Grossbard reviewed the plaintiff the following month, at which time he thought she had had a good response.  She had very little discomfort at all, and now, just a minor degree of pain, and certainly a full range of shoulder movement without discomfort.

146Mr Grossbard advised Dr Williams it was interesting that much of the plaintiff’s neck and arm pain seemed to have resolved but she had a burning sensation in the midline posteriorly.  This would suggest much of the symptomatology was in fact coming from the shoulder rather than the neck, although there was clearly some symptomatology arising from the spine.  He then thought there was not anything else he wanted to do, but should there be a recurrence of shoulder pain, a further subacromial injection may be appropriate.

147In a letter dated 24 March 2014, Dr Williams referred the plaintiff to Mr Grossbard with chronic left shoulder pain that had worsened lately.  The plaintiff also had a sore right shoulder.

148In his report of September 2014, Dr Williams advised he agreed with Dr Shan’s diagnosis but believed the plaintiff could now work in new simplified duties which were non-physical and non-threatening to her.  Similarly, from Mr Polke’s report, he believed, provided the plaintiff’s English improves, she could do the jobs listed by QBE, but, unfortunately, that required at least a year of intensive English education.  In the meantime, he thought the plaintiff could only handle simple employment such as retail, selling coffees, cakes, or sandwiches.

149In a letter to the plaintiff’s solicitors of 9 December 2014, Dr Williams advised that the plaintiff had severe cervical and lumbar and thoracic pain, left shoulder and right shoulder.  She was severely impaired from her work injuries, from working with physically and mentally disabled clients. 

150Dr Williams advised that, unfortunately, associated with these injuries had been the development of paranoid depression; best treated, he thought, by some mental occupational therapy, a long course of anti-depressants, and psychological and psychiatric therapy.  He noted that the effectiveness of the latter two therapies was limited by the plaintiff’s poor conversant and comprehension of English. 

151Nevertheless, the plaintiff had indicated a wish to try and cooperate with some very simple work activities of sandwich-making and sales for reduced hours; however, he could not be sure how practical that was. 

152If the plaintiff could not obtain some work to encourage her social skills and to improve her self-esteem, Dr Williams thought she would need to remain unemployed on a possible permanent basis and to encourage voluntary social community involvement.

153In Dr Williams’ opinion, the plaintiff’s shoulder conditions had stabilised, and he did not think any further physiotherapy would help her injuries.  She needed exercise and therapies she had been taught by the physiotherapist.

154Dr Williams completed two questionnaires in September and December 2014, noting he was treating pain in the neck and both shoulders and treating depression secondary to the above pain. 

155In the earlier questionnaire, Dr Williams set out that he thought the plaintiff could now only do clerical or administrative duties.  She could do hospitality or human services work.  Her depression would need to be addressed more closely.  She would probably need further pain management services.  He thought she would need help with speaking, writing, and reading English.  He noted the plaintiff was intelligent and able to learn and improve her English.  She could also complete a computer skill training in Word and Excel.

The Defendant’s medico-legal evidence

156Mr Robin Williams, orthopaedic surgeon, examined the plaintiff on 17 August and 28 November 2012.

157On the first examination, the plaintiff had diffuse pain extending from her neck through the thoracic region of the spine on both sides to her gluteal areas, the lumbar spine, and both thighs.

158The plaintiff related a continuing problem with her spine and shoulders and pain to the incident, when she was lifting a paralysed man during the course of her work as a personal carer on the said date.  Initially the most severe pain was her neck and left arm.

159     The plaintiff advised that she had had no previous problems with her spine, and had begun work as a personal carer about three-and-a-half years ago.

160Following examination, Mr Williams noted that the plaintiff had developed diffuse pain in her spine, shoulder girdles and pelvic region, lifting a paralysed client.  He thought she should continue physiotherapy and hydrotherapy, and that she had a physical capacity for light duties.

161On re-examination, the plaintiff advised that she had had some relief of symptoms in her head and neck by treatment to that time.  She complained of pain in the neck, particularly posteriorly, extending into the left scapular region.  Right-sided pains were not as severe.  Her lower back felt very weak, and pain extended mainly into her left buttock.

162Following re-examination, Mr Williams’ assessment was that the plaintiff’s level of pain and disability had worsened.  He thought she had a poor prognosis.  He believed emotional factors were playing a considerable part in her continuing sense of illness, and she was not really responding to the pain-management program offered so far.

163Although he believed she had the physical capacity to undertake full duties, Mr Williams thought the plaintiff would not consider such activities because of her sense of restriction for standing, walking and sitting, and her restricted spinal function associated with pain.  Although she had that physical capacity, he believed her mental state would preclude her undertaking work activities.  He suggested a psychiatric or psychological assessment.

164Dr Douglas, psychiatrist, examined the plaintiff on 12 March 2013.

165At that stage, the plaintiff continued to have pain in the neck and down her back, and she also reported pain in her left leg.

166Dr Douglas diagnosed chronic pain which was attributed to an incident at work.  He thought the plaintiff’s psychiatric symptoms were not sufficient to make a psychiatric diagnosis.

167Dr Douglas believed the plaintiff’s psychiatric symptoms were not severe, and they, of themselves, would not prevent her returning to full-time pre-injury duties and hours.  However, the plaintiff was focused on her pain and disability, and he thought it unlikely she could return to pre-injury duties and hours.

168Dr Douglas believed the plaintiff could return to suitable employment.  This would need to be employment where she could move about or sit as necessary, and where she did not have to do lifting or heavy work.  Such work could be that of a secretary or receptionist, noting the plaintiff had trained for secretarial work in the past. 

169In terms of treatment, Dr Douglas thought three sessions of psychological treatment could have been sufficient to address the plaintiff’s problems with dealing with the pain and her expectations, but he thought further sessions might be useful.

170Dr Pathak examined the plaintiff on behalf of QBE in May 2013.

171The plaintiff then complained of severe burning pain from the neck through to the thoracic and lumbar spine to her gluteal regions and proximal thighs.

172Having examined the plaintiff and looked at the investigations to date, Dr Pathak concluded she had soft-tissue injuries to her neck and back, with diffuse pain in her spine, shoulder girdles, and pelvis, more as fibromyalgia.  The injury had been caused by a strain lifting a paraplegic patient.

173Dr Pathak thought the plaintiff could not return to work in her pre-injury duties now, noting she was severely focused on her pain and disability.  He thought, however, she could return to suitable employment where she could move about or sit when she wanted to, where she did not have to lift weights.  She could return to suitable alternative duties, as her psychiatric symptoms were not severe.  She should be able to return to alternative duties as a receptionist.

174At that stage, Dr Pathak thought the soft-tissue injuries had not resolved.

175Confirming his diagnosis in a supplementary report, Dr Pathak thought the plaintiff may be referred to a multi­disciplinary pain clinic, and that a further review of her psychological condition was appropriate.

176Mr Gerald Moran, orthopaedic surgeon, first saw the plaintiff in September 2013 for the purposes of an impairment assessment.  That examination seems to have been confined only to the spine, with a history of pain in the neck, mid and low back after the incident.

177Mr Moran then noted present symptoms, in addition to constant neck pain and low back pain, included pain down the left arm to the elbow most of the time, and sometimes pain around the right shoulder.

178Mr Moran thought the plaintiff suffered an injury to her thoracic and lumbar spines in the incident, and employment was a significant contributing factor.  He recommended the defendant accept liability for the thoracic and lumbar injury.

179On re‑examination in August 2014, the history of the incident included injury to both shoulders.  The focus of this report seemed to be Mr Moran’s advice as to shoulder treatment.

180Mr Moran recommended the plaintiff be assessed three or four months after her last hydrodilatation or if she had shoulder surgery at about six months thereafter.  He then did not think the plaintiff’s shoulder condition had stabilised.

181Mr Moran re‑examined the plaintiff on 29 January 2015.

182The plaintiff then complained of intermittent right shoulder pain and her right shoulder movements were restricted.  She had constant left shoulder pain and also restricted movement.

183Mr Moran then diagnosed supraspinatus tendinopathy and arthropathy of the acromio­clavicular joint of the right shoulder, having seen the June 2014 MRI.

184Mr Moran thought the plaintiff had a partial thickness tear of the supraspinatus tendon and arthropathy of the left acromio­clavicular joint, diagnosed after viewing the MRI.  He made an allowance under the AMA Guide for impairment of both shoulders, the left being more significant.

185Dr Shan, consultant psychiatrist, examined the plaintiff in May 2014.

186Dr Shan was given a history of the first incident in 2011, and then the injury on the said date.  He noted other staff at the nursing home did not do much else, so the plaintiff was largely responsible for her patient during her time there.

187Following the incident, the plaintiff developed severe pain in the shoulder, as well as the lower back.

188The plaintiff was then attending a psychologist about once a month, and said she had become depressed and stressed by her situation.  She had been offered counselling or medication, and chose counselling, and took a range of alternative medicine.

189The plaintiff complained of pain in her lower and upper back, both shoulders, and her neck.  The left shoulder was particularly bad, and she also had pain in her right shoulder.

190The plaintiff worried about relying on too much medication.  She took Lyrica mainly at night, and also Mersyndol once or twice a day.

191Dr Shan noted the plaintiff did not feel capable of any work whatsoever or doing courses, and that she had been given certificates by her doctor saying she was not capable of any work.

192On mental state examination, the plaintiff expressed discomfort, and described the situation in a pressured fashion, but did not become tearful.  There was some evidence of clinical anxiety and depression beyond the natural anxiety of being examined.

193Thought content consisted of pre-occupation with the physical symptoms and the disability that she believed she had.  Dr Shan noted there seemed to have been some social withdrawal.  The plaintiff described wide-ranging symptoms, but it would appear the predominant complaints were in the neck, shoulders and low back.

194On examination, the plaintiff spoke of her injury in an anxious and obsessive fashion, and there was some evidence of clinical anxiety and depressed mood.

195Dr Shan concluded there was a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

196Dr Shan thought counselling by a psychologist once a fortnight was appropriate for a further twelve months.  He considered that the plaintiff could not return to pre-injury duties and hours because she had become quite anxious about residual physical symptoms.

197Dr Shan thought the plaintiff could work in any job that was considered to be within her physical limitations, at either the current employer or another one.  From a psychiatric viewpoint, she would be capable of simple administrative work that did not require constant keyboard use or constantly being seated at a desk.

198When such duties were identified, Dr Shan thought the plaintiff would be naturally anxious about her employment prospects, given her WorkCover injury history.  He also noted she believed there were ongoing physical symptoms and her family seemed supportive.

199Mr Michael Polke, orthopaedic surgeon, first saw the plaintiff on 27 May 2014.

200The plaintiff gave Mr Polke a history of the June 2011 incident and the incident on the said date, following which she re‑injured her spine, having also had bilateral shoulder pain in 2011.

201On that examination, the plaintiff complained of ubiquitous pain, namely in the neck, interscapular area, lower lumbar region and both shoulders. 

202On examination of the cervical spine, there was virtually a full range of movement, although some discomfort at limit, no radiculopathy, tenderness, or guarding.  There was no wasting of the shoulders, and active movements were restricted to about 50 per cent.  The dorsolumbar spine was slightly tender, but there was no guarding, radiculopathy or tension signs.

203Mr Polke had available the July 2012 imaging.

204Mr Polke thought conservative treatment appeared appropriate, and he would encourage gradual tapering of the medication as supervised and referred by a general practitioner.

205Mr Polke thought the plaintiff’s soft-tissue injuries were caused by the documented injuries at work that had now become “chronic” due to degenerative changes.

206Mr Polke would not advise a return to pre-injury duties and hours.  He thought the plaintiff however had a current work capacity for non-menial work, noting occupational services were not currently being provided.

207Mr Polke would not advise a return to pre-injury duties, although he noted the plaintiff was interested in aromatherapy, which she could do even with her restricted English.

208Mr Polke believed appropriate restrictions were avoiding any heavy activities such as heavy lifting or manually attending rehabilitating patients, avoiding repetitive bending or twisting of the spine.  He thought the plaintiff should also avoid prolonged sitting, standing and heavy pulling and pushing.

209Mr Polke considered, due to the plaintiff’s limited English, the employment options identified of enquiry clerk, receptionist, community care or aged care sales assistant, and call or contact centre worker, were probably not realistic, although physically they would be suitable for her, as she would avoid heavy strenuous activities which were required as a personal carer.

210Mr Polke thought there was really nothing other than the plaintiff’s chronic pain syndrome that was affecting recovery, including return to work.  He believed there was some embellishment of her symptoms, and that she and her husband had domestic financial issues which may figure in her presentation.

211Mr Polke re‑examined the plaintiff in October 2016.

212In general, the plaintiff told him her pains were better than before but were still ubiquitous over the left side of her neck, in the shoulders, particularly the left, and in her thoracic and lumbar spine, radiating to the left leg.  She advised of pins and needles in the left side of her neck.

213The plaintiff told him hydrotherapy was stopped by WorkCover, but she still attended some sessions as a private patient.

214On examination of the cervical spine, there was minimal tenderness on the left.  There was no wasting of the left shoulder, but some restricted movement of abduction and flexion.  There was no tenderness of the right shoulder, and near normal movement.  Dorsolumbar spine range of movement came to about 25 per cent of normal, with some slight tenderness in the dorsolumbar region, but no guarding, spasm, or radiculopathy.

215Mr Polke had available to him the 2014 diagnostic imaging.

216Mr Polke thought the current treatment appeared reasonable.  He considered treatment was essentially symptomatic, which should continue on a similar basis into the foreseeable future as long as the plaintiff was symptomatic; she may benefit from an epidural injection for her mild left-sided sciatic symptoms.

217Mr Polke confirmed he thought the original work-related injury had resolved, and that the plaintiff was now suffering from degenerative changes associated with her deconditioning.

Vocational evidence

218There was a return to work program of July 2012 in which a number of jobs were suggested.

219Recovre carried out an initial assessment report in April 2013.  At that stage, based on medical evidence, it was thought unlikely the plaintiff would return to her pre-injury duties, and the alternate duties then being offered were unsuitable.

220There was an NES vocational assessment report carried out by Recovre in July 2013.  Identified suitable jobs were enquiry clerk, community centre, sales assistant, and recreation officer.

221There was an NES re-education assessment report in July 2013, in which the plaintiff’s transferable skills were noted and a number of courses suggested.  These were repeated in the NES re-education assessment report – Certificate III in Community Services Work, a Certificate at Chisholm TAFE, Victoria University, and Certificate IV in Services Work at Swinburne.

222Post-completion of training, suitable employment options were community health support worker, case support worker, youth support worker, residential support worker, volunteer coordinator, family support worker, neighbourhood centre worker, and community capacity building worker.

223There was an NES job-seeker plan completed by Recovre in July 2014.  Suitable employment option goals were:

§  enquiry clerk ($1,000 gross per week)

§  receptionist - community centre or aged care ($850 gross per week)

§  sales assistant ($777 gross per week)

§  call or contact centre worker ($890 gross per week).[56]

[56]Wage rates set out in the Recovre NES Vocational Assessment Report dated May 2014

224Suitable employment option goals set out after the NES 16-week job-seeker plan of November 2014 were customer service, general clerk and sandwich hand.

225It was noted the plaintiff had reported to have had an increase in depressive symptoms since her payments had ceased.  Her disability pension application was rejected.  She now reported she did not believe she could work, and did not wish to seek employment.

226In general terms, it was concluded that the plaintiff was able to satisfy her own simple everyday transactional needs and limited social needs but needed assistance beyond that by a sympathetic or experienced member of the general public.

227A Recovre Independent Job Seeker Plan completed in July 2015 described suitable employment options of customer service, general clerk and sandwich hand.

Other documents

228The plaintiff provided a résumé in which she set out key skills: she was bilingual and fluent in English and Spanish.

Overview – spinal impairment

229Counsel for the plaintiff focused on the spinal impairment as the strongest application, followed by the bilateral shoulder impairment involving loss of manual dexterity and finally, a left shoulder impairment.  It was conceded any right shoulder impairment was not “serious”.[57]

[57]T110

230     Counsel for the plaintiff submitted it would appear the spine would be the plaintiff’s major debilitating loss of body function and one present before the incident, arising from the plaintiff’s course of employment.[58]

[58]T102

231There is no dispute the plaintiff suffered a compensable injury to her thoracic spine during the course of her employment.  Liability was accepted in respect of a claim dated 17 October 2011 in respect of the plaintiff’s left shoulder and middle back.  A second claim dated 17 June 2012 for an injury to the thoracic spine said to have occurred on or about 12 June 2012 was also accepted.

232     On 31 March 2015, QBE accepted liability for permanent impairment to the cervical, thoracic and lumbar spine, psychological injury and both shoulders.

233However, counsel for the defendant submitted that any spinal problems which the plaintiff presently experiences lack a substantial organic basis and cannot satisfy the test in Meadows v Lichmore.[59]

[59][2013] VSCA 201

234Further, it was submitted that any cervical spinal problems were degenerative in nature, and not work related.[60]

[60]Peak Engineering & Anor v McKenzie [2014] VSCA 67

235     In Meadows v Lichmore Pty Ltd,[61] Maxwell P set out the two-step manner in which I ought to approach the task in this case:

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[61](supra) at paragraphs [21]-[22]

236     It was submitted that there was an abundance of evidence to suggest the presence of non-organic factors in the plaintiff’s presentation.[62]  Whilst there were some degenerative changes in the neck and lower back, there were none in the thoracic spine.  It was submitted the pathology does not explain the plaintiff’s symptoms and that the circumstances of the incident were not indicative of the plaintiff’s spine being under load.[63]

[62]T14

[63]T94

237     Counsel for the defendant stated that his submission was “nicely encapsulated” in Dr Gassin’s view that the plaintiff has soft-tissue injuries and specific structures accounting for low-back and thoracic pain which have not been clearly diagnosed.  Further, Dr Gassin thought, over time, symptoms and signs suggestive of a widespread Myofascial Pain Syndrome had developed.  He also considered the plaintiff was suffering from anxiety and depression.[64] 

[64]T92

238     It was submitted it had become a chronic pain-type scenario case.[65]

[65]T94

239In 2011, treating physiotherapist, Mr Abbas, mentioned that the plaintiff had a breakdown because of severe neck pain.   The plaintiff underwent psychological counselling from Lorraine Nicholson and was involved in a pain management program.[66]

[66]T16

240It was submitted Professor Teddy, in August 2012, thought the plaintiff’s condition had “morphed through to a Myofascial Pain Syndrome through to a Chronic Pain Syndrome”.[67] 

[67]T13

241     Mr Williams could not make a specific diagnosis initially and in his later examination in November 2012, thought emotional factors were playing a considerable role in the plaintiff’s continuing sense of illness.[68]

[68]T95

242Mr Pathak thought there was a soft-tissue injury to the back and neck, with diffuse pain in the spine and shoulder girdles, more as fibromyalgia, which it was submitted was a Chronic Pain Syndrome presentation.[69]  Dr de Neef also mentioned fibromyalgia.[70]

[69]T96

[70]T95

243     While Mr Moran thought there was aggravation at L4-5, the plaintiff’s complaints in the clinical notes are predominantly about the thoracic and cervical spine and the lumbar spine was not really mentioned greatly.[71]

[71]T96

244However, as counsel for the plaintiff submitted, no practitioner other than Mr Williams, who saw the plaintiff twice in 2012, thought emotional factors were emerging in the plaintiff’s presentation.[72]  Although Mr Polke made reference to a Chronic Pain Syndrome, he recently suggested the plaintiff undergo an epidural injection for sciatic symptoms.[73]

[72]T19

[73]T107

245Whilst it was submitted on the defendant’s behalf that a diagnosis of fibromyalgia was indicative of a non-organic condition, no doctor who made that diagnosis described the condition as non-organically based.

246Dr Gassin considered the spinal injury was the most significant of the plaintiff’s problems and specifically stated that her symptoms had a physical and organic basis.[74]

[74]T102

247     In Dr Pavasaris’ view, the principal diagnosis is chronic spinal pain consistent with causation by disc pathology and partly fibromyalgic.

248     Mr Moran considered the plaintiff was suffering from an organic condition with an injury to thoracic and lumbar spine in the incident and recommended liability be accepted for these injuries.[75] 

[75]T19

249Professor Teddy thought the situation was one of mechanical neck and back pain with no focal neurological abnormalities.  He made no mention of a Chronic Pain Syndrome and suggested an intense program of physiotherapy and pain management assessment.

250Taking into account all the evidence, I am satisfied that the plaintiff’s present spinal condition has a substantial organic basis.

251Mr Polke is the only practitioner who considered the plaintiff now suffers from degenerative changes associated with her deconditioning and that the plaintiff’s employment is no longer a contributing factor to either her claimed physical symptoms or incapacity for work.[76]

[76]T13

252     Mr Polke however gave no explanation as to how and when the work involvement ceased and in those circumstances, I reject his view.[77]

[77]T106; Watts v Rake (1960) 108 CLR 158

Is the impairment serious?

253     Counsel for the defendant submitted that, on a consideration of the spinal condition alone,[78] ignoring the plaintiff’s shoulder problems, the consequences were not “serious”.  From an orthopaedic point of view, not one of the widespread conditions of which the plaintiff complains amounts to serious consequences when isolated.[79]  It was submitted that any spinal consequences considered separately were not “serious”.[80]

[78]Peak Engineering & Anor v McKenzie (supra)

[79]T14

[80]Peak Engineering & Anor v McKenzie (supra)

Credit

254     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[81]

“… 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.”

[81](2010) 1 VR 1 at paragraph [12]

255     The defendant put in issue the plaintiff’s credibility, particularly in relation to the accuracy of histories given by her in terms of both the nature of her work and the consequences of any injury.

256     In my view, the plaintiff’s credit was not really in issue.  She attempted to give a truthful account of her condition, although at times, her evidence became somewhat confused when she answered in English, not through the available interpreter.

257     As I indicated to counsel during the hearing, I did not think there was anything in the 8 minutes of film shown of the plaintiff walking around the Cranbourne area and having a cup of coffee, inconsistent with her evidence as to her level of activity.  As counsel for the plaintiff submitted, the plaintiff gave the description of a level of activity that was shown in the video.[82]

[82]T108

258     In any event, in my view, the plaintiff was shown walking slowly on the film.  Further, as the plaintiff explained in re‑examination, she was shown in the film rubbing her back and left buttock at times to try to relieve her pain.[83]

[83]T85

Pain

259     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)what the plaintiff says about the pain (both in court and to doctors);

… .”[84]

[84](supra) at paragraph [11]

260     The plaintiff’s worst pain is in her back, with pain going down her left leg, sometimes into her foot.  She recently told Dr Gassin of pain across the neck and upper back, as well as a throbbing pain in the mid thoracic region radiating bilaterally and also radiating down to the low back and down the left leg.

261     The plaintiff’s treatment for her spinal condition has been essentially conservative, with referral to neurosurgeons who have not thought surgery was appropriate.  She has undergone a pain management program, and also continues to have physiotherapy treatment.  A sciatic injection has recently been suggested.

262The plaintiff currently takes two Palexia tablets at night for the strong pain in her back and shoulder.[85]  She uses cream on her neck, back and left shoulder at times.  She also takes Panadol or Nurofen for headaches.

[85]T78

263     There has been no suggestion that the plaintiff’s spinal pain is going to improve significantly or that there is alternative treatment that should be tried.[86]

[86]T108

264     As a result of her pain, the plaintiff is restricted in her ability to maintain sustained postures, bend, and lift other than light weights.

265     In my view, as a result of these restrictions, the plaintiff has been unable to work in her chosen vocation as a personal carer since June 2012 and is restricted in the amount of physical work she can undertake generally.

266     The plaintiff was unable to take up a return to work offer in August 2012 and has been unsuccessful in obtaining employment since that time despite the assistance of Recovre for two years.

267     Whilst counsel for the defendant conceded probably the opinion of all the doctors is that the plaintiff no longer has the capacity for physically demanding work, there was a “rider” on that – as transferring patients actually was not part of her job, and she made that concession in cross-examination.[87]

[87]T93

268     It was submitted that in expressing their views on work capacity, a lot of the doctors have been misled by the plaintiff’s history that she had to transfer patients and she was prohibited from transferring Michael from the shower or the bed.[88]

[88]T15

269It was submitted the plaintiff was really an exercise physiotherapist rather than a personal carer, so there was not much “hands on” work involved in her job.  When injured, she was not acting in her normal role of transferring the patient.[89]

[89]T9

270     However, I accept that the plaintiff’s role with the defendant was one that required manual handling and was not confined to exercise instruction, as counsel for the defendant submitted.  It is clear from both the plaintiff’s evidence and her earlier documented complaints, that she had ongoing difficulty moving Michael and that her normal daily duties involved this task.

271In particular, in the plaintiff’s Carechoice document “Staff Review Performance” dated 17 January 2011, she outlined the greatest challenges were manual handling with Michael.[90]

[90]T17

272     The consensus of medical opinion is the plaintiff is no longer able, as a result of her back condition, to undertake physical work, and is therefore not fit to work as a personal carer for which she is trained.

273     Whilst Dr Pavasaris thought the plaintiff had no work capacity by reason of both her spinal and shoulder conditions, Dr Gassin and Mr Donohue considered, on the basis of her spinal condition alone, she has a restricted capacity for employment, not being able to perform any physically demanding activities.    Mr Doig shared this view when he last commented on the plaintiff’s work capacity in May 2014. 

274 As counsel for the plaintiff submitted, the spinal impairment is the one that produces the major consequences which interfere with the plaintiff’s ability to perform “suitable employment” as defined under s5 of the Act. In my view, this interference with the plaintiff’s employment is a serious consequence.

275     As the plaintiff’s pain and restrictions have continued for in excess of five years, I am satisfied her spinal impairment is permanent.[91]

[91]T102

Loss of earning capacity

276     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, he 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).

277     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.

278 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

279     “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.

280     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.

281     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.[92]

[92]Barwon Spinners Pty Ltd & Ors v Podolak (supra)

282     The parties agreed that the pre-injury earnings figure was $22,628,[93] 60 per cent of which is $13,576.80 or $261 per week.  Therefore, to be successful in her application in relation to loss of earning capacity, the plaintiff must establish that on a permanent basis she does not have the capacity to earn in excess of $261 per week.

[93]The plaintiff’s highest earnings – in the 2011 financial year

283Thus, it must be determined, having lost the capacity for unrestricted manual work, what is the plaintiff’s capacity for suitable employment and whether she has suffered the requisite loss of 40 per cent.

284Counsel for the plaintiff conceded the plaintiff may have some capacity for employment such as reiki healing or aromatherapy, being reluctant to say that there was no capacity in light of the comments of the Court of Appeal in Harris v DJD Earthmoving Pty Ltd.[94]

[94][2016] VSCA 188; T7

285However, reliance was placed on Dr Pavasaris, the general practitioner, and the Brian Donnelly, the vocational assessor, who both considered the plaintiff to be totally incapacitated.[95]

[95]T4

286Reliance was also placed on the comments of the Court of Appeal in Richter v Driscoll[96] that return to work in employment requires more than a physical capacity to engage in a task or tasks.[97]

[96][2016] VSCA 142

[97](supra) at paragraph [76]

287Counsel for the defendant submitted the plaintiff could not establish the requisite loss, as she has the capacity, if not for her pre-injury employment, then for alternative administrative clerical or light duties with the capacity to earn not less than 60 per cent of her pre-injury earnings. 

288Taking into account all the evidence, I am not satisfied the plaintiff has suffered the requisite loss of earning capacity 40 per cent, in circumstances where the threshold is very low – $261 per week.

289The plaintiff has indicated a willingness to return to the workforce in secretarial or office work, having unsuccessfully applied for many jobs of this nature on the internet.  If she had been offered one of those jobs and she could manage with her pain, then she would be very happy to accept it.[98]  She would like to improve her English and continue to apply for a job.[99]

[98]T29

[99]T79

290Dr Pavasaris is the only medical practitioner who considered the plaintiff has no work capacity; however, he thought she would remain unfit to do any form of manual duties, even light, because of the underlying pathological changes in both her spine and shoulders.  Further, he thought the plaintiff would be fit to attend retraining.

291     Having made this finding, there is an evidentiary onus on the defendant to show there is suitable employment where the plaintiff could earn in excess of the relevant amount.[100]

[100]Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at Paragraph [115]; Poholke v Goldacres Trading Pty Ltd & VWA [2016] VSCA 232 at Paragraph [133]

292     Most medical practitioners who have opined as to work capacity due to the plaintiff’s spinal condition alone, consider she has a capacity for light work – with restrictions on static postures and avoidance of lifting, bending and twisting.

293     Dr Gassin thought these type of restrictions were appropriate and any attempt to return to work with those restrictions should be limited to 15 hours per week – 3 hours per day.

294     Mr Donohue thought the plaintiff’s neck and back problems clearly affected her capacity for work and she was not able to perform any physically demanding activities.   

295     Whilst he did not express an opinion on the plaintiff’s work capacity on recent examination in 2016, in May 2014, Mr Polke thought she had a current work capacity.  Although the jobs suggested in the 2014 NES report were probably not realistic due to her limited English, physically, he thought they would be suitable for the plaintiff, as she would avoid heavy strenuous activities which were required of her as a personal carer.[101]

[101]T96

296     I am not satisfied that the plaintiff does not have the capacity to earn more than $261 per week in a non-physical job which does not require advanced English skills. Clearly, from her ability to work with Michael and enjoy that work, the plaintiff’s English was not an issue in that role.

297     On the wage figures set out in the 2014 NES reports, working even 15 hours per week, Mr Gassin’s starting point, in any of the suggested positions, the plaintiff would earn in excess of $300.[102]

[102]Wage rates set out in the Recovre NES Vocational Assessment Report dated May 2014

298Having found the plaintiff has not established the requisite loss of 40 per cent, I am not required to consider issues of retraining and rehabilitation as set out in paragraph (g).

299     I am satisfied that the pain and suffering consequences of the plaintiff’s spinal impairment are “serious”, and grant leave to bring proceedings for damages in relation thereto, but her application in relation to loss of earning capacity fails.

300     Having found serious injury in terms of pain and suffering in relation to the spine, I am not required to consider an application under this head in relation to the bilateral or left shoulder impairment.

301     However, in terms of loss of earning capacity as a result of any shoulder impairment, whether bilateral or the left alone, the same considerations apply as in the case of the plaintiff’s spine and I am not satisfied the plaintiff would suffer the requisite loss of earning capacity in relation thereto.

302     The medical opinion is in similar terms, with Dr Pavasaris the only practitioner of the view the plaintiff is totally incapacitated due to her shoulders (and her spinal condition). Both Dr Gassin and Mr Donohue, who considered any shoulder impairment, thought the plaintiff has a capacity for light work with appropriate restrictions as to shoulder use.

303     Accordingly, the plaintiff’s application seeking leave to bring proceedings for damages for loss of earning capacity in relation to her bilateral and left shoulder impairment also fails.

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