Derya Uyar v Grace Tombolato Enterprises Pty Ltd
[2014] VCC 1839
•19 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01615
| DERYA UYAR | Plaintiff |
| v | |
| GRACE TOMBOLATO ENTERPRISES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 & 16 September 2014 | |
DATE OF JUDGMENT: | 19 November 2014 | |
CASE MAY BE CITED AS: | Derya Uyar v Grace Tombolato Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1839 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave under section 134AB(16)(b) of the Accident Compensation Act to institute proceedings for pain and suffering and pecuniary loss damages – injury to right shoulder
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622, Jatayilakev Toyota Motor Corporation Australia Ltd (2008) VSCA 167, Meadows v Lichmore Pty Ltd [2013] VSCA 201, Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC and Mr M Clarke | Zaparas Lawyers |
| For the Defendant | Mr J Batten | Lander & Rogers |
HER HONOUR:
Introduction
1 By originating motion filed on 8 April 2013, the plaintiff, Derya Uyar, sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to institute common law proceedings for pain and suffering and loss of earning capacity. She alleged injury to her right shoulder arising out of or in the course of her employment with labour-hire employer, Grace Tombolato Enterprises Pty Ltd from 2000 and, in particular, from about September 2009.
2 With the assistance of an interpreter, the plaintiff attested to the accuracy of two affidavits, sworn on 28 November 2012 and 8 September 2014 respectively.[1] She gave further evidence-in-chief and was cross-examined.
[1] Exhibit P1, Plaintiff's Court Book (PCB)
3 The plaintiff and the defendant tendered extracts from their respective Court Books.
4 The material tendered by the plaintiff comprised multiple reports from treating doctors and medico-legal specialists together with copies of radiological reports.[2] The plaintiff separately tendered the report of the defendant’s medico-legal specialist, orthopaedic surgeon, Mr Troy dated 18 June 2012.[3]
[2] Exhibit P1
[3] Exhibit P2
5 The material tendered by the defendant comprised the Worker’s Injury Claim Form signed by the plaintiff on 10 March 2010, multiple reports from medical specialists including report dated 5 August 2011 from the treating orthopaedic surgeon, Mr Dallalana and report dated 24 May 2013 from the treating rheumatologists at Austin Health, various NES Refresher Job Seeker Plan documents, an IPAR Vocational Assessment Report, correspondence from CGU dated 3 April 2012 and extracts from the clinical notes kept by treating general practitioner, Dr Mughal.[4] A GP Mental Health Plan arranged by Dr Mughal was tendered separately.[5]
The statutory requirements
[4] Exhibit D1, Defendant's Court Book (DCB)
[5] Exhibit D2
6 Under the Act, the plaintiff was required to prove compensable serious injury on or after 20 October 1999. This was not an issue in this application. The claim for compensation made on 10 March 2010[6] was accepted, as was a subsequent claim for permanent impairment. However, under paragraph (a) of the definition of serious injury in the Act, the plaintiff was required to prove a “permanent serious impairment or loss of body function” on the balance of probabilities.
[6] DCB 2
7 Permanent, under the Act, refers to impairment that is: “likely to last for the foreseeable future”.[7]
[7]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 [33]
8 Section 134AB(38)(c) of the Act provides that pain and suffering and loss of earning capacity consequences of the injury, when judged by comparison with other cases in the range of possible impairments or loss of a body function, must be fairly described as being more than "significant" or "marked", and as being at least "very considerable".
9 The plaintiff was also required to discharge the burden imposed by section 134AB(38)(e) by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. The without injury earnings figure, determined under section 134AB(38)(f), was agreed as $32,916 gross, per annum, 60 % of which is $19,749.60 gross per annum.
10 Other than one very short and unsuccessful attempt to return to work in November 2010, the plaintiff has not returned to work since submitting her WorkCover claim in March 2010. She is not actively seeking suitable alternative employment.
11 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, she had a capacity for any employment which, if exercised, would result in her earning more than 60% of the without injury earnings figure, that is to say, more than $19,749.60 gross per annum.
12 The plaintiff was further required to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[8]
[8] Sections 134AB(38)(19)(b) and (38)(g)
13 Section 5(1) of the Act defines "suitable employment" such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
14 If the plaintiff satisfied the loss of earning capacity requirements under section 134AB of the Act, she was entitled to leave to institute proceedings for both her pecuniary loss and pain and suffering damages, without further determination of the pain and suffering component of the application.
15 Section 134AB(38)(h) provides that any psychological or psychiatric consequences of the injury are to be taken into account only for the purpose of paragraph (c) of the definition of "serious injury" and not otherwise. This meant that the psychological or psychiatric consequences of the injury were disregarded in my assessment of the consequences of the impairment or loss of function of the plaintiff’s right shoulder as a result of the injury.
The dispute
16 The defendant contended as follows:
· based on opinion obtained from orthopaedic surgeon, Mr Simm on 19 September 2013,[9] any work-related injury probably involved mild supraspinatus tendonitis with some reactive subacromial impingement and/or bursitis;[10]
[9]DCB 52
[10] Transcript (TN) 22 and 112
· the plaintiff had not identified the nature of any existing and permanent organic injury as at the date of hearing;
· the evidence had not established a substantial organic basis for the pain and suffering and loss of earning capacity consequence on which the plaintiff relied;[11]
[11] See Jatayilakev Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows v Lichmore Pty Ltd
[2013] VSCA 201, [19] and Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
· the plaintiff had failed to disentangle psychological consequences from the physical consequences of the injury and to disentangle the consequences of the right shoulder injury from concurrent unrelated medical conditions;
· alternatively, the consequences of any permanent work-related physical impairment of the right shoulder failed to meet the requirements of the narrative test;
· the plaintiff has a residual earning capacity for suitable alternative employment which if exercised would take her over the earnings threshold.
17 There was no serious challenge to the plaintiff’s credit. She presented as a straightforward witness, who appeared to do her best to respond to the questions posed.
Background matters and the onset of right shoulder symptoms
18 The relevant background information was drawn from the plaintiff’s affidavit material and her oral evidence.
19 The plaintiff is 43 years of age. She was born in Turkey. After marrying at 18 years of age, the plaintiff migrated to Australia. Her husband was already living in Australia. He teaches English to adult migrants.
20 The plaintiff was educated in Turkey to Year 11 level. English is her second language. However, after arriving in Australia the plaintiff studied English at Victoria University and over a six-month period she also completed a receptionist’s course. The latter course was completed, so the plaintiff said, to enable her to practice her English language skills. Having studied English and spent most of her adult life living in Australia and, despite her professed lack of confidence in speaking English, the plaintiff appeared to have acquired good English-language skills.
21 The plaintiff’s three children were born between 1991 and 2002. The older two are involved in tertiary studies. The youngest, a 12-year-old boy, is still attending primary school.
22 Between 1998 and 2000 the plaintiff completed a Diploma of Fashion Design at Kangan TAFE, apparently to learn more about sewing. This training, nonetheless, qualified her to work as a pattern maker’s helper, employment the plaintiff said she found stressful. After working for nearly 6 months the plaintiff said she lost this job because the employer moved away.
23 The plaintiff commenced employment with the defendant labour hire company from about 2000. In her first placement she worked as a casual at Betta Foods for about 12 months before travelling to Turkey with her two children for about two months.
24 The plaintiff did not return to the workforce for some years because her third child was born in 2002.
25 Between 2004 and 2007 the plaintiff was again placed with Betta Foods. This was as a casual packer working mostly during the busier summer months.
26 From 2007 the plaintiff commenced work as a machine operator five days per week. In this role she worked either on the Case Packer machine or on the McDonald’s machine. The plaintiff described her duties as repetitive, with frequent use of her dominant right arm to open and close the machine door. If the Case Packer machine broke down the plaintiff said she was required to lift a heavy glass lid to clean the machine, an activity she deposed was difficult.
27 Between late August 2009 and 9 March 2010 the plaintiff was employed as a permanent, full-time employee. In her first affidavit the plaintiff described one area of Betta Foods’ production as the Mogul Room where trays of lollies were filled, inspected and packed.
28 According to the plaintiff, in August/September 2009 she performed quite heavy and very fast packing work. In her first affidavit (as corrected by her further affidavit[12]), the plaintiff recalled that on a date in or around September 2009, before breaking for morning tea, she was sent to the Mogul Room. At the direction of her supervisor, the plaintiff emptied trays onto a conveyor belt until lunchtime. The plaintiff then placed boxes on pallets and, following an afternoon coffee break (2:30 pm), she made boxes and performed quality control duties until completion of her shift at 3 pm.
[12] PCB 24 and 31
29 Evidently, at some stage while working alone and pouring trays of lollies onto a conveyor belt the plaintiff said she felt “a click” in her right shoulder, after which the shoulder was, in her words: “quite stiff”. The plaintiff continued working after the afternoon break, during which time she noted stiffness in her shoulder when carrying boxes to the pallet. It was not clear from the affidavit the precise nature of the report made to the plaintiff’s friend with whom the plaintiff said she was working at the time. The plaintiff, nonetheless indicated, she was next required to work on a finished pallet. This work apparently involved removing boxes weighing 10 kilograms each from a pallet and scanning these with a metal detector. According to the plaintiff, she continued to note stiffness and pain around her right shoulder until completing her shift.
Treatment initially received
30 On Wednesday 2 September 2009 the plaintiff attended the Roxburgh Park Super Clinic where she was treated by general practitioner, Dr Ahmed. The clinical note made by this doctor indicated an attendance for treatment of gingivitis/gum inflammation. [13] However, a complaint of right shoulder pain also prompted referral for investigations (x-ray and ultrasound of the right shoulder), which were obtained on 1 October 2009.[14]
[13] DCB 115
[14] PCB 63-64
31 Pending the results of these investigations, on 4 October 2009 another general practitioner from the same clinic, Dr Mughal, prescribed simple analgesia, ibuprofen. The results of the x-ray and ultrasound investigations, once available, indicated no bone or joint abnormalities and the supraspinatus tendons were reported as normal. The only pathology of note in the right shoulder was bursitis (the subacromial bursa demonstrated moderate thickening).
32 Between October and 9 March 2010 the plaintiff remained at work. Through her affidavit evidence and during re-examination the plaintiff indicated that, in the months before she stopped work, she had required assistance from other employees in moving and carrying pallets and boxes. In her first affidavit the plaintiff deposed that by November and December 2009 she was experiencing pain and, at times, numbness in her right hand and a burning sensation around her shoulder.[15] Rest apparently eased the right shoulder pain, which flared once the plaintiff resumed work and, by January 2010, so the plaintiff deposed, she noted pain travelling down her right arm.
[15] PCB 25
33 The pathology shown in the cervical spine following a CT scan, probably requested by Dr Mughal on 3 January 2010, was, however, unremarkable (“(m)inimal degenerative spondylotic changes involving the mid and lower cervical vertebrae as well as lower facet joints bilaterally, but the rest of the study is normal”[16]).
[16] PCB 64
34 The plaintiff deposed, she reported her injury to her supervisor on 15 February 2010 and sought light duties, which she performed until certified unfit for work from 9 March 2010. On 10 March 2010 the plaintiff signed the Worker’s Injury Claim Form.
35 There were numerous attendances on Dr Mughal for treatment of right shoulder symptoms throughout the period until the plaintiff was certified unfit for work from 9 March 2010. The clinical notes confirm that during this period the general practitioner recorded, among other things, reduction in the range of movement in the right shoulder, ongoing complaints of pain and reports of a burning sensation in the thenar eminence (the area of the thumb), pain and paraesthesia in the right hand, swelling and heaviness in the right arm in the morning, mild burning pain in the upper trapezius region when moving the shoulder, pain and weakness affecting the arm and hand and intermittent shooting pain radiating down from the upper arm.
36 Dr Mughal substituted the anti-inflammatory medication, Celebrex for ibuprofen, because the latter upset the plaintiff’s stomach and, referred the plaintiff to physiotherapist, Ms Lane. The clinical notes indicate that the physiotherapist treated the plaintiff for symptoms of subacromial bursitis from mid-November 2009.[17] The plaintiff said she attended for physiotherapy treatment on a weekly basis and performed exercises as recommended. As I understood her evidence on this issue, possibly from about December 2011, the plaintiff stopped and never resumed physiotherapy because this treatment had caused her neck pain.[18]
[17] DCB 116-124
[18] TN 87-88
37 It appears from the clinical notes, that further diagnostic imaging (CT scan of the right shoulder and ultrasound of the right shoulder respectively) was requested by the general practitioner following attendances on 11 February 2010 and 7 March 2010. The results of this further imaging, if obtained, were not tendered.[19]
[19] DCB 122 and 124
Symptoms of unrelated medical conditions before and subsequent to right shoulder injury
38 The clinical notes kept before and after the injury, further confirm attendances for treatment of other unrelated conditions, including diagnosis of and treatment of hypothyroidism. As mentioned, one of the issues raised in this case by the defendant was whether, and the extent to which, any other unrelated medical condition or conditions contributed to the consequences alleged in support of the serious injury application.
39 The plaintiff was cross-examined in some detail about attendances and treatment for a variety of medical conditions mentioned in her medical history as at 20 September 2011 and in the extracts from the clinical notes tendered.[20] For instance, the plaintiff acknowledged an iron deficiency, which the records show involved treatment on 11 November 2006 and 11 July 2010 and a Vitamin D deficiency, which the records also show involved treatment on 11 July 2010 and 6 April 2011.
[20] TN 32-43
40 Under cross-examination, the plaintiff explained that, following injury to her right shoulder, she put on weight and her cholesterol levels rose and, after referral to an endocrinologist, she had been diagnosed with a thyroid condition. Thereafter, she commenced taking Thyroxine, which the plaintiff said she continued to take in the management of this condition.
41 The plaintiff acknowledged that, after undergoing various tests, on 19 February 2010 she was advised of the diagnosis, that is to say some weeks before she ceased work. The plaintiff further acknowledged that, in early March 2010, she had suffered side-effects before her doctor established an appropriate therapeutic dose of Thyroxine.
42 It was apparent from the plaintiff’s evidence that she wrongly believed the medication, Celebrex, first prescribed on 15 October 2010, had been in some way responsible for her weight gain and the onset of the thyroid condition. She also blamed weight gain (20 kilograms[21]) on inactivity following her injury.
[21] PCB 28
43 The clinical notes show, however, that the plaintiff was treated for dental abscess in March 2009 and, in the months before injuring her right shoulder, on 7 July 2009, the plaintiff attended the clinic for treatment of fatigue. On this occasion it was recorded the plaintiff was overweight and she was suffering from hyperlipidemia.[22] In July 2009, the doctor recommended diet and exercise and lifestyle modification.
[22] DCB 114-115
44 As earlier mentioned, the attendance on 2 September 2009 during which the plaintiff first complained of right shoulder pain had been for treatment of gum inflammation and gingivitis.
45 The plaintiff also told the Court that in November 2009 she was diagnosed with gall stones, which lead to a cholecystectomy in September 2011. This in turn caused a Vitamin B deficiency, which was treated with an injection.
46 Irrespective of the cause or causes of these, as the plaintiff explained in re-examination, the thyroidism condition was currently controlled by medication and she has not had ongoing problems due to this or any of the other conditions to which the clinical notes referred.[23]
[23] TN 79
47 For the purpose of this application, based on her medical history, the plaintiff had not satisfied me that any significant weight gain occurred after injury and such weight gain as had continued, was currently a consequence of the injury. Otherwise, as at the date of hearing, I could not be satisfied concurrent unrelated medical conditions were a cause or causes of the range of consequences on which the plaintiff relied to prove serious injury. In particular, these conditions were not contributing to any ongoing incapacity for work.
Treatment received between May 2010 and May 2013 and fitness for work
48 The plaintiff was referred to a specialist in the treatment of shoulder injuries, orthopaedic surgeon, Mr Dallalana. He examined her for the first time on 26 May 2010. MRI investigation obtained on 27 May 2010 apparently confirmed impingement and, in the specialist’s words: “some fraying of the superior labrum and no abnormality of the AC joint”.[24]
[24] PCB 45 and 48
49 Conservative treatment including physiotherapy, exercises, subacromial cortisone injection and intraarticular injection failed to resolve the pain symptoms.
50 On 1 June 2011 the plaintiff underwent right shoulder arthroscopic decompression and bursectomy. The arthroscopy apparently confirmed both the impingement process and mild tendinosis of the supraspinatus, without evidence of any tearing of this or any other aspect of the rotator cuff. No evidence of arthritis or of labral tearing or structural abnormality was found and the bicep tendon was said to be stable. Treatment of the impingement process involved the removal of the acromial spur and inflamed subacromial bursa.[25]
[25] PCB 49
51 In response to the insurer’s questionnaire, on 15 August 2011 Mr Dallalana reported a good prognosis post-surgery. He gave a three-month estimate for a return to work on suitable duties, with limitations on lifting and overhead tasks and a six month estimate before the plaintiff would be fit to return to her pre-injury duties.[26]
[26] DCB 29-31
52 According to the treating surgeon’s report dated 21 August 2012, addressed to her solicitors, surgery had initially produced an improved range of motion with little pain and what he described as: “generally very good progress”.[27]
[27] PCB 49
53 However, when reviewed for the last time on 15 September 2011, the plaintiff evidently presented to Mr Dallalana with a slightly reduced range of motion (“however still very good at that stage”[28]) and reported recurrence of some of the previous pain felt in the more superior aspect of the shoulder near the AC joint. On 25 October 2011 the plaintiff underwent an ultrasound guided injection into the AC joint.[29]
[28] PCB 49
[29] PCB 68
54 It appears that during November 2011 the plaintiff was assessed for the purpose of commencing a 16 week NES Refresher Job Seeker Plan.[30] After discussion with the plaintiff, the occupational rehabilitation provider apparently identified as suitable employment goals: light process work, employment as a machine operator in selected environments and, with training, working as a sales assistant.
[30] DCB 71-73
55 In summarising comments made by the plaintiff during the assessment, the report relevantly recorded the plaintiff’s belief that she was not fit to return to employment due to high levels of pain in her injured right shoulder. However, according to the author of the report, the plaintiff had expressed “particular interest” in sales assistant or light process work, so long as the duties accorded with her current medical restrictions and were not repetitive.
56 As to the plaintiff’s capacity to return to any form of employment subsequent to the assessment by the occupational rehabilitation provider, it appears that in December 2011 Dr Mughal informed the insurer that the plaintiff was fit for sedentary or light duties. Of the list provided, he identified work as a sales assistant as suitable employment.[31] The questionnaire completed by Dr Mughal further indicated that the plaintiff was still undergoing treatment (physiotherapy, taking pain relief and anti-inflammatory medication) and, in the doctor’s opinion, she probably required further assessment by the treating surgeon because she continued to present with pain and reduction in the range of movement of her shoulder.
[31] DCB 74-75
57 As we now know the plaintiff never returned to the treating surgeon for treatment or review.
58 In a further report dated 23 December 2011, the occupational rehabilitation provider relevantly noted the plaintiff had been an active participant in the NES program, she had reported job seeking activity with the assistance of family members and she had indicated her willingness to consider positions as a retail sales assistant or light process worker where the duties complied with the medical restrictions imposed. Apparently the general practitioner’s assessment of the plaintiff’s work capacity was reflected in her advice that she was still not fit to resume work.
59 I note that in January 2012, in response to a questionnaire submitted by the insurer, a treating physiotherapist advocated, among other things, indefinite restrictions on work activities requiring use of the plaintiff’s right arm in performing overhead tasks, in reaching, in working repetitively, in lifting more than two kilograms and in pushing or pulling tasks.[32]
[32] DCB 32-34
60 By letter dated 3 April 2012, the insurer notified the plaintiff that weekly payments of compensation would cease from 4 August 2012.[33]
[33] DCB 101-105
61 A further report was submitted by the occupational rehabilitation provider at the 8-week mark of another 16 week NES program, on 14 May 2012.[34] Among other things, this report confirmed the plaintiff’s ongoing co-operation and participation in the program and, whilst she still indicated she was unfit to return to work, the report also recorded the plaintiff was prepared to consider a return to suitable employment.
[34] DCB 80-83
62 In his final report, dated 21 August 2012, addressed to the plaintiff’s solicitors, Mr Dallalana strongly rejected the notion that the persistent right shoulder pain reported by the plaintiff was work-related (“Mrs. Uyar had a condition which relates to repetitive manual work and that was the impingement. This however was treated without any resolution of her symptoms. There is no way that her current undiagnosed and ill defined pain can be linked to her work based on the information which I have (sic)”[35]).
[35] PCB 50
63 Mr Dallalana reasoned that the plaintiff’s symptoms probably derived from elsewhere (“From a shoulder surgeon’s perspective there was nothing further to offer however in theory there was necessity for further treatment, firstly to make a diagnosis. It is often the case that many forms of pain including clicking, catching and other sensations remain forever undiagnosed and for which there are a myriad of non specific causes. Most of these settle with time. Many of these do not relate to structural elements of the shoulder itself but may be in the local musculature, ribs, shoulder blade and/or neck and may be neural in origin”[36]).
[36] PCB 50
64 Mr Dallalana, nonetheless, made allowance for the discomfort reported by the plaintiff nearly a year earlier when he advised the plaintiff’s solicitors that she was not fit for work involving manual handling with the right arm (“She was thus in a position to carry out clerical, supervisory or non manual tasks, with perhaps some restriction on hours due to the fact that she was still experiencing pain and may have required additional breaks and/or painkillers for symptom control. She was still attending physiotherapy”[37]).
[37] PCB 50
65 In short, over a period of approximately 16 months, the treating surgeon had investigated and treated the pathology identified in the radiology and during surgery. As reported, he had not been able to also identify or explain the cause or causes of persistent right shoulder pain post-surgery. Mr Dallalana had not, however, completely ruled out other possible physical causes. His advice that the plaintiff restrict the work performed to positions not involving manual handling with the right arm and restrict the hours worked, no doubt also took into account the possibility of other physical causes of right shoulder pain.
66 The plaintiff’s persistent symptoms were investigated in 2012 by another specialist, orthopaedic surgeon, Mr Hunt.
67 MRI investigation of the plaintiff’s cervical spine on 18 January 2012 ruled out the cervical spine as a potential source of the plaintiff’s symptoms (“Normal examination, no cause for right sided symptoms identified”[38]). Mr Hunt next ordered CT and MRI arthrograms of the right shoulder. These investigations were performed on 4 May 2012. They also failed to reveal pathology to explain the symptoms of which the plaintiff complained. The results were normal:“(n)o significant interval alteration as when compared with the previous examination of 27/05/2010”.[39]
[38] PCB 58
[39] PCB 69
68 In a report dated 4 June 2012, addressed to the plaintiff’s solicitors, Mr Hunt diagnosed failed right shoulder surgery with ongoing symptoms of pain (worsened by activity) and loss of function.[40] The latter Mr Hunt thought, could indicate ongoing impingement syndrome with the possibility of adhesive capsulitis. His recommendation for a diagnostic arthroscopic procedure to search for any untreated pathology was not pursued by the plaintiff.
[40] PCB 55-61
69 In response to specific questioning, Mr Hunt advised the plaintiff was unfit for her pre-injury duties or alternative duties due to pain and loss of function of her dominant upper limb (for instance, his clinical examination had revealed significant restriction of external and internal rotation[41]).
[41] PCB 56
70 In short, Mr Hunt had been similarly unsuccessful in providing any concrete diagnosis but, unlike Mr Dallalana, Mr Hunt still believed there may be some underlying, unidentified pathology in the shoulder responsible for the persistence of pain and for the restrictions noted by him during clinical examination. Apart from further investigation, he advocated ongoing management of the right upper limb pain and symptoms with oral analgesics and by modification of the plaintiff’s activities.
71 Mr Hunt’s final report, whilst making no reference to any history of lower back problems, also mentioned that on 4 June 2012 the plaintiff had undergone a CT guided L4-5 Epidural Injection.[42] Under cross-examination, the plaintiff denied any problem with her lower back or an attendance on Mr Hunt for treatment of any condition other than her right shoulder problem.[43]
[42] PCB 59
[43] TN 37
72 The only clinical history of back pain indicated investigation and treatment of pain at the level of the plaintiff’s coccyx following a fall in June 2008[44] and an attendance for treatment of back pain on 8 November 2009.[45] Later events suggest that the back pain reported in 2009 was probably related to the plaintiff’s gall stone condition. In these circumstances, I have accepted, as the defendant’s counsel eventually did,[46] that Mr Hunt’s report was probably wrong because there was no evidence of treatment of the plaintiff for any lower back condition.
[44] DCB 111
[45] DCB 117-118
[46] TN 115
73 The earliest reports tendered from the treating general practitioner did not allude to any clinical or radiological evidence on which this treating doctor had relied in reaching his initial diagnosis of work-related regional pain syndrome.[47] Indeed, absent the questions to which the doctor responded, the reports submitted to the Accident Compensation Conciliation Service and to the plaintiff’s solicitors dated 22 August 2012 and 11 September 2012 respectively were not particularly informative.
[47] PCB 41, 43-44 and 44c-d
74 These reports and the GP Mental Health Plan dated 22 June 2012, a copy of which was tendered by the defendant,[48] did, however, confirm that in 2012:
[48] Exhibit D2
· the plaintiff was also receiving treatment for symptoms of depression and an adjustment disorder, considered by the general practitioner to be secondary to chronic pain and limitations on the plaintiff’s “mobility”;
· the plaintiff was prescribed the antidepressant, Pristiq ER;
· the general practitioner appeared to believe that the plaintiff’s psychological state was contributing to her incapacity for all employment (“Proposed job will be decided when she is better, improving her Psychlogical Condtion (sic)[49]).
[49] PCB 43
75 In her affidavit and oral evidence the plaintiff deposed to regular attendance on a psychologist, Ms Ozturk from 28 August 2012, until the psychologist took extended leave from about September 2013. The plaintiff, who said counselling had helped her, evidently anticipated resuming treatment once the psychologist returned from leave.[50]
[50] PCB 27 and 33 and TN 31-32
76 In 2013, Dr Mughal, referred the plaintiff for assessment by specialists working in the Austin Health Rheumatology Clinic. A report to the general practitioner written by the Register of the Rheumatology Clinic, Dr Owen, [51] among other things, indicated the plaintiff had been referred by rheumatologist, Dr Yenson-Chu for an opinion about right shoulder pain. On review on 23 May 2013, the plaintiff had reported undergoing arthroscopy, which had not, she said, improved her symptoms. The plaintiff claimed to be troubled by constant pain in the right shoulder, the latter worsened by activity.
[51] DCB 59
77 On the same date the plaintiff was seen by consultant orthopaedic surgeon, Mr Westh. According to the report, he recommended ongoing physiotherapy with particular attention to a scapular stabilisation program. The plaintiff did not, however, resume physiotherapy. As mentioned, the plaintiff said she had earlier ceased physiotherapy treatment because this had caused neck pain.
78 No reports were tendered from either Dr Yenson-Chu or Mr Westh. However, Dr Owen’s interpretation of earlier radiological investigations and of the results of her clinical examination were reported as follows:[52]
“mild limitation to extremes of abduction and flexion by approximately 10°. The power throughout the shoulder was relatively normal. The impingement test was negative. There was some tenderness noted over the acromioclavicular joint, however this was not deemed to be particularly significant.
X-rays performed prior to today’s visit demonstrated no abnormalities of the glenohumeral or acromioclavicular joints. Indeed, a previous MRI has also demonstrated no significant acromioclavicular arthropathy with minimal evidence of subdeltoid bursitis and supraspinatus tendonosis.”
[52] DCB 59
79 In summary then, when Mr Hunt investigated the plaintiff’s condition in mid-2012, whilst he had been unable to identify specific pathology to account for the pain reported and restrictions found, he thought there were signs of ongoing impingement syndrome with the further possibility of a differential diagnosis of adhesive capsulitis. However, within a year, whilst there were some limited physical signs found, further assessment by Austin Health, had not reported evidence of impingement or a formal diagnosis of the cause of the constant pain reported and the limited clinical findings made.
80 Dr Mughal’s report to the plaintiff’s solicitors dated 10 September 2014 was the last report submitted by a treating doctor. This report contained a summary of the history and management of the work-related injury. Dr Mughal again diagnosed regional pain syndrome, without referencing the diagnoses of the treating specialists to whom he had referred the plaintiff, Mr Dallalana and Mr Hunt or the report he had received from Austin Health.
81 I, nonetheless infer from the report made and the diagnosis recorded that Dr Mughal was satisfied there existed an ongoing organic basis for his patient’s long-standing complaint of pain and impairment affecting her dominant right shoulder, to which the symptoms of an adjustment disorder and depressed mood were secondary. He advised the plaintiff was awaiting the opinion of a pain specialist.
82 As I understood the plaintiff’s evidence, having been rejected by one clinic because she was a WorkCover patient, she still hoped to attend a pain clinic to learn strategies for coping with ongoing right shoulder and arm pain.[53]
[53] PCB 33
83 Notably, in September 2014 the general practitioner considered the plaintiff fit for only light duties (mainly in an office setting), where lifting, pulling and pushing were restricted to weights of no more than five kilograms.[54]
[54] PCB 44d
The plaintiff’s current circumstances
84 In her final affidavit sworn on 8 September 2014, the plaintiff deposed she suffered constant right shoulder pain, the level of which fluctuated depending on whether or not she used her right arm. Use of the right arm worsened pain which the plaintiff described as: “a burning pain. The pain in my right shoulder travels down my right arm to my wrist. My right arm also feels heavy and my right wrist feels weak”.[55]
[55] PCB 31
85 Under cross-examination, the plaintiff said that, from time to time, when using her hand, she still suffered pain between the base of the thumb and the base of the right index finger.[56] The impression I had was that this may have been an issue when first reported to the general practitioner some years earlier while the plaintiff continued at work. However, after she ceased work the focus of the plaintiff’s complaint was on shoulder and arm pain aggravated by activity. The plaintiff did, nonetheless, also report pins and needles and numbness affecting the right hand from time to time.
[56] TN 47
86 Both in this affidavit and her oral evidence the plaintiff indicated neck pain was no longer an issue (“It’s – there is, but not – it’s very – not strong as before”[57])
[57] TN 26
87 The plaintiff said she continued to attend Dr Mughal once or twice a month. She described a regime of medication, which included Panadol or Panamax taken during the day when the plaintiff intended to go out and use her arm and, depending on whether there were problems with her stomach, nightly use of tricyclic antidepressant medication, Endep. As I understood the evidence, the latter medication was also being used by the plaintiff in the treatment of pain. The plaintiff said she limited her intake of medication due to concerns about its side-effects.
88 The plaintiff described a range of consequences due to pain and disability affecting her domestic, recreational and day-to-day activities and impacting on her relationship with her youngest son.
89 As mentioned, the plaintiff has not returned to employment. Under cross-examination, the plaintiff confirmed that, currently, she was not registered with any agency to look for work and was not looking for work.[58]
[58] TN 31
90 On 6 August 2014, IPAR Rehabilitation psychologist, Ms Mutimer, interviewed the plaintiff for the purpose of a Vocational Assessment, at the request of the defendant’s solicitors. The lengthy assessment report that followed was dated 7 August 2014.[59]
[59] DCB 84-100
91 In addition to the interview, IPAR relied on documentary information. This included the plaintiff’s first affidavit, reports and correspondence from the treating surgeons, Mr Dallalana and Mr Hunt and the results of the radiological investigations obtained up to and including 4 June 2012. IPAR did not, however, have the benefit of the medico-legal evidence submitted from April 2010 to the date of the assessment and summarised below, or the benefit of any current certification from the treating general practitioner of the work-related restrictions he continued to impose.
92 After discussion canvassing, among other things, the plaintiff’s self-reported limitations, education, literacy skills, interests and her transferrable skills, IPAR identified a number of potentially suitable job options. These options involved employment as a sales assistant, cashier, car park attendant or in customer service (meet and greet) and were said by IPAR to be subject to confirmation of their suitability by the treating doctor.[60]
[60] DCB 99
93 The plaintiff told the Court, the assessor had not explained the duties required in each of the occupations identified in the report. When, during re-examination she was taken to these, the plaintiff invariably stated that she would not be able to meet the physical requirements of these positions. The impression I had, however, after hearing her responses in cross-examination and re-examination was that, to date, a lack of confidence in her English language skills and in her ability to return to any kind of employment had been a significant barrier to the plaintiff obtaining alternative employment of any kind, much less pursuing re-training.[61]
[61] TN 60-66 and 81
94 The recent reports obtained from an occupational specialist retained on behalf of the plaintiff, Dr Slesenger, whilst rejecting as unsuitable other positions mentioned, nevertheless, indicated a likely capacity to perform the customer service role for 16 hours per week (4 hours per day, 4 days per week). The limitation placed on the hours worked, was attributed to a number of factors: the variability of the plaintiff’s symptoms, the presence of psychological impairment and the side-effects of taking the drug Endep.[62] I will discuss this evidence in greater detail shortly.
[62] PCB 111a-c
Medico-legal diagnoses and physical capacity for suitable employment
95 Other specialist examination by medico-legal experts before and since surgery has reported symptoms of impaired functioning of the plaintiff’s right shoulder. The diagnoses after surgery were, however, inexact and varied (bursitus, tendonosis, impingement syndrome, adhesive capsulitius, a possible chronic pain disorder and, in the case of the defendant’s specialist, Mr Simm, the possibility of mild shoulder dysfunction subsequent to surgery).
96 Some specialists also considered the possibility that non-organic factors were influencing the plaintiff’s condition, although Mr Simm was alone, and ultimately unpersuasive, in his view that the pain reported was probably mostly, if not entirely, due to non-organic factors. In short, despite the difficulty in identifying the exact shoulder mechanism/s responsible for this, I was satisfied by the preponderance of medical opinion that, post-surgery there remained a substantial and likely permanent organic cause for the pain and impaired functioning reported.
97 I based this conclusion, in part, on the consistency in the plaintiff’s account of a burning-type pain before and after arthroscopy and on her reports that activity involving the use of her right upper limb exacerbated pain and, in part, on the findings made during medical examinations. The latter helped confirm the likely presence of an unresolved, work-related physical condition, which to varying degrees, probably continued to impair the function of the right shoulder.
98 In determining the likely nature of the unresolved work-related condition I paid particular attention to the evidence of the specialists because, as a general rule, their reports revealed their reasons for making a particular diagnosis. As my summary of the specialist evidence below reveals, despite the difficulty in providing an exact diagnosis, there was strong support for the view that unresolved inflammation in the tissues and/or structures of the right shoulder probably accounted for complaints of persistent pain and the restrictions found from time to time.
99 Generally speaking, where they have addressed this issue, specialists (other than orthopaedic surgeon, Mr Pullen who considered the plaintiff totally incapacitated for all work) have reported that the plaintiff was not fit to return to her pre-injury employment but had a retained capacity for suitable employment where ongoing restrictions on lifting and so forth applied. This evidence generally agreed with the evidence submitted by the treating general practitioner, who, in the past, had supported his patient’s involvement in the NES programs already mentioned. However, general surgeon, Mr Flanc and, more recently, Dr Slesenger both cautioned against the plaintiff working more than 16 hours per week.
100 On the issue of the potential hours worked, on balance, I preferred the evidence of Dr Slesenger, a specialist in occupational medicine. As earlier mentioned, Dr Slesenger identified and explained that factors such as variability in the plaintiff’s symptoms and her use of a drug the plaintiff reported had affected how she functioned the next day, indicated a likely permanent partial incapacity for work of about half the full-time hours worked by the plaintiff prior to injury. The evidence as a whole had not, however, indicated that any psychological impairment, whether that involved an adjustment disorder or a general lack of confidence in her English language skills, had in some way overtaken the physical causes of the plaintiff’s ongoing incapacity.
101 For the sake of completeness, I have summarised the medico-legal opinion below. As a preliminary observation, I note that the material available to each specialist varied. For instance, a number of specialists did not have an opportunity to consider the operation report or the evidence of treating surgeon, Mr Dallalana or the later evidence from Austin Health. Specialists who examined the plaintiff following surgery and had not specifically referenced the operation or medical evidence of the treating surgeon included Mr Kierce and Mr Flanc, whereas specialists who had not specifically referenced the further assessment made by Austin Health in May 2013, included Mr Flanc, Mr Pullen, Dr Slesenger and Mr Simm.
102 The various opinions obtained between April 2010 and August 2014 were as follows:
· occupational physician, Dr Yong who, at the request of the insurer, examined the plaintiff on three occasions, between 13 April 2010 and 29 March 2011.[63] Against a background of persisting right shoulder pain, Dr Yong diagnosed work-related subacromial bursitis, a diagnosis later confirmed during the arthroscopic decompression and bursectomy procedure performed by Mr Dallalana. As his examinations occurred prior to the arthroscopic surgery, Dr Yong’s diagnosis was less helpful in this regard than more recent specialist opinion. Nevertheless, with some variations in the restrictions imposed, Dr Yong’s assessment that the plaintiff was permanently limited to restricted employment was repeated in most of the post-surgery medical opinion. Dr Yong concluded the plaintiff was probably fit to perform tasks where she could avoid use of her right arm above shoulder height and avoid reaching, repetitive movements and lifting weights exceeding 2 kg;
[63] DCB 5-28
· occupational physician, Dr Wyatt examined the plaintiff at the request of the insurer on 2 March 2012.[64] The plaintiff complained of soreness at the top of the right shoulder, pain in the right side of the neck and down into the right upper arm and a heavy feeling generally through the right arm. Clinically, the plaintiff presented with close to normal right shoulder movements, with minor restriction at the end of range of abduction and pain on resisted abduction of the shoulder with the plaintiff’s arm in the internally rotator position. The latter was apparently the only sign of impingement found by Dr Wyatt. This, nevertheless, provided a clinical basis for accepting there were ongoing physical problems, despite the plaintiff having undergone decompressive surgery. Relying on her employment background and good, but not proficient, English language skills, Dr Wyatt considered the plaintiff unfit for work until she underwent retraining for employment that did not require repetitive use of her right arm.[65] I infer from this evidence that, by March 2012, subject to retraining, this occupational physician, on whose report the plaintiff otherwise relied, considered the plaintiff fit for suitable alternative employment;
[64] PCB 112-118
[65] PCB 117
· orthopaedic surgeon, Mr Troy assessed permanent impairment on 15 June 2012.[66] The plaintiff relied on this report in which, among other things, Mr Troy diagnosed work-related bursitis and tendonosis of the right shoulder. Mr Troy found clinical evidence of ongoing limitation of movement in the shoulder. This evidence, no doubt, helped inform Mr Troy’s opinion that the plaintiff continued to experience a medical condition related to the alleged injury, as well as his assessment of a permanent work-related impairment (8%) of the right upper extremity. Notwithstanding the procedures Mr Dallalana said he performed, I infer from the acceptance of permanent impairment more than a year post-surgery, not to mention the findings of Mr Hunt and Dr Wyatt during 2012, that howsoever this was diagnosed, the work-related shoulder injury had left the plaintiff with a likely permanent impairment;
[66] Exhibit P2
· orthopaedic surgeon, Mr Kierce reported on behalf of the plaintiff. On 31 July 2012, the plaintiff reported pain on the outer aspect of the right shoulder radiating into the outer aspect of the right forearm and into the wrist, with pins and needles and some feelings of numbness in the front and back aspects of the right hand, especially the front. She said her condition had not improved and pain and symptoms were brought on by any significant physical activity. On this occasion, having reviewed the MRI scans and the arthrograms of the right shoulder, Mr Kierce concluded the reported results of the MRI scan on 27 May 2010 were wrong. He interpreted these as showing: “definite inflammation in the right supraspinatus tendon”.[67] He diagnosed work-related supraspinatus tendonosis of the right shoulder. Leaving to one side for the moment his reported interpretation of the radiology, Mr Kierce’s opinion that there were ongoing symptoms of tendonosis accorded with Mr Troy’s diagnosis some six weeks earlier. Mr Kierce considered the plaintiff fit for alternative duties (“performed below shoulder level and was not associated with lifting weights of more than 3 kilograms, not using her arms above shoulder level, not having to push or pull with her right-hand”[68]). Mr Kierce recommended that physiotherapy cease and the plaintiff commence a six-week course of Panadol Osteo tablets (taking two tablets, three times daily). He thought the plaintiff’s prognosis was good so long as her right arm was not used in manual work. After reviewing the MRI scan of the cervical spine obtained on 18 January 2012, in a supplementary report, Mr Kierce ruled out pathology in the cervical spine as a cause of the plaintiff’s symptoms, particularly the definite right-sided spasm in her neck. The latter was, Mr Kierce said, probably due to dysfunction of the right shoulder. Mr Kierce did not review the plaintiff clinically. In a supplementary report dated 11 September 2014, he advised that, depending on the condition of her right shoulder, the plaintiff should be able to undertake full-time suitable employment, after a gradual introduction to performing duties over about a six week period.[69] The inference I drew from this evidence was that, in mid-2012, Mr Kierce had been optimistic that rest and the use of simple analgesia would adequately address the physical condition with which the plaintiff presented, such that, he anticipated the plaintiff would be capable of undertaking full-time suitable employment in the foreseeable future. The supplementary evidence commenting on the plaintiff’s work capacity in 2014 was, however, of less assistance in determining the plaintiff’s current capacity than it might otherwise have been had the surgeon also re-examined her;
[67] PCB 77
[68] PCB 79
[69] PCB 83b
· general surgeon, Mr Flanc examined the plaintiff once at the request of her solicitors on 12 September 2012. On examination, Mr Flanc found a range of motion he said was almost normal. He too, found difficulty in identifying the exact pathology underlying disability in the right shoulder Mr Flanc viewed as moderate in degree. Mr Flanc advocated resolving the conflict between the diagnoses of orthopaedic surgeons Mr Hunt and Mr Kierce, through discussion with them and analysis of the operative findings and procedure performed by Mr Dallalana.[70] In circumstances where the plaintiff was seeing a psychologist, Mr Flanc also recommended assessment by a psychiatrist to exclude the possibility that the plaintiff’s symptoms were being influenced to some extent by non-organic factors. In the context of the report overall, I did not understand this recommendation to indicate that Mr Flanc believed the work-related organic injury had fully resolved. As to her fitness for work, despite the “almost normal” range of motion found in the plaintiff’s right shoulder, Mr Flanc thought the plaintiff’s condition would deteriorate should she return to repetitive work. Mr Flanc deemed the plaintiff fit for light duties (sedentary or supervisory duties) at least on a part-time basis where these did not involve heavy or repetitive use of her dominant right upper extremity. In a supplementary report dated 9 September 2014 Mr Flanc suggested the plaintiff had a capacity to work four hours per day on alternative days with the possibility of one more half day if she coped, that is to say, 12 to 16 hours per week.[71] It was not clear, however, from reading these reports why, where light work met the restrictions imposed, the plaintiff should also limit her hours of work indefinitely;
[70] PCB 90
[71] PCB 91a
· orthopaedic surgeon, Mr Simm, examined the plaintiff once on 19 September 2013 at the request of the defendant’s solicitors.[72] Mr Simm did not have the advantage of reading other medico-legal opinion submitted on both sides. As mentioned, the defendant placed particular reliance on his reports. The plaintiff described localised constant pain in the region of the right deltoid muscle, which fluctuated according to whether the plaintiff was resting or using her right arm. As his reports show, Mr Simm believed the surgery for subacromial impingement had been appropriate. As this had failed to produce improvement, Mr Simms reasoned, pain was now being generated and perpetuated by non-organic and/or psychological factors (“She now presents with a non-specific pain response on physical examination. There is a reasonable range of movement. Although there were limitations on the assessment of the shoulder function because of the pain response, it appears as if there is no residual subacromial impingement and the components of the rotator cuff are all functional”[73]). Mr Simm, nonetheless, accepted that the plaintiff may now be suffering from some mild shoulder dysfunction subsequent to surgery, but thought the plaintiff’s current condition was mostly, if not entirely, due to chronic pain, non-organic in origin. As counsel for the plaintiff quite properly pointed out, Mr Simm’s specialty was confined to assessment of the plaintiff’s physical injury. However, allowing for his area of expertise, I infer from Mr Simm’s evidence that he too accepted there was probably some (albeit limited) organic basis for the persistent symptoms experienced following surgery. Whilst he was not satisfied that the plaintiff was physically unable to return to suitable employment on a full-time basis, in assessing her capacity for employment, Mr Simm, nevertheless, allowed for the plaintiff’s complaint of pain and functional difficulties and for the clinical presentation of chronic pain by recommending light activities where the plaintiff could keep her right upper limb close to her body, work below shoulder height and gradually return to full-time hours of work;
· orthopaedic surgeon, Mr Pullen examined the plaintiff once at the request of her solicitors on 8 August 2014.[74] The materials considered by Mr Pullen included Mr Simms report dated 19 September 2013 and NES vocational and job seeking materials to 14 May 2012. Mr Pullen’s clinical examination produced variable impingement results (a positive modified Hawkin’s impingement result but a negative Neers impingement result), as well as evidence of weakness in the supraspinatus muscle, pain in the region of the supraspinatus fossa, a palpable click and a painful arc. He diagnosed work-related post-traumatic right shoulder impingement syndrome (the cause of which he noted had not been identified by the investigations undertaken) and possibly secondary chronic pain syndrome.[75] Mr Pullen reasoned that the plaintiff was one of a small group of patients who developed chronic symptoms. In his opinion her prognosis was poor and consultation with a pain management and/or rehabilitation consultant may be necessary. He considered the plaintiff unfit for all work due to symptoms of chronic shoulder pain, stiffness, weakness and impingement;
· occupational physician, Dr Slesenger also examined the plaintiff at the request of her solicitors in August 2014.[76] The plaintiff apparently described severe pain in the right shoulder with restricted range of movements, an inability to carry loads on the right hand and a background level of pain of 1 to 2/10 which escalated to 10/10 when the plaintiff started using the right shoulder. The pain was described as a burning pain. Clinical examination, among other things, revealed a modest restricted range of movements (there was no wasting and impingement and provocations tests were negative). Dr Slesenger concluded there was radiological evidence on 27 May 2010 to indicate an initial tear of the rotator cuff and some evidence (presumable in part based on the complaints of constant pain and the radiological evidence of fraying of the labrum) to support a current diagnosis of adhesive capsulitis. He also noted the development of a chronic pain disorder and a psychological impairment. The latter was, the occupational physician said, outside his area of expertise. As mentioned, Dr Slesenger assessed a physical capacity for work, subject to restrictions on the use of the plaintiff’s right arm, that is to say, no over shoulder reaching, no forward reaching beyond 50 cm, no lifting over 5 kgs and avoidance of repetitive shoulder work. Dr Slesenger recommended referral to a pain management specialist, psychologist and physiotherapist and retraining to improve the plaintiff’s employment prospects. Whilst Dr Slesenger expressed reservations about the plaintiff’s capacity to work due to her lack of training and limited employment skills and experience, he stopped short of stating that she was likely totally and permanently incapacitated for all employment or for full-time employment. As mentioned, however, he concluded as, Mr Flanc had before him, that the plaintiff should limit the hours worked. In Dr Slesenger’s opinion the plaintiff was fit for suitable alternative employment for 4 hours per day, 4 days per week.
[72] DCB 47-56
[73] DCB 53
[74] PCB 92-101
[75] PCB 97
[76] PCB 102-111c
Loss of Earning Capacity Consequences
103 Based on the evidence as a whole, I was not satisfied that, by reason of likely permanent impairment of her right shoulder, the plaintiff was totally and permanently incapacitated for suitable alternative employment.
104 Furthermore, I was not satisfied that background factors peculiar to the plaintiff or any lack of proficiency in the English language precluded further occupational rehabilitation or retraining for suitable alternative employment. Nevertheless, having particular regard to the occupational physician’s evidence summarised above, the plaintiff satisfied me that, for the foreseeable future, any rehabilitation or retraining was unlikely to improve her physical capacity for work beyond more than 16 hours per week, that is to say four hours per day, four days per week in any employment to which she may be otherwise suited in accordance with the definition contained in section 5 of the Act.
105 In short, by using as a guide the position in customer service ($763 gross per week), the plaintiff has established a permanent loss of economic capacity productive of financial loss of 40% or more. This was because the gross annualised rate of pay for 16 hours per week (at the rate of $20.07 per hour = $16,705.52) would not exceed 60% of the agreed without injury earnings figure, namely $19,749.60 gross per annum.
106 Accordingly, applying the test under the Act, by reason of work-related impairment of her right shoulder:
· the plaintiff has a loss of earning capacity of 40% or more and she will, after the date of hearing, continue permanently to have a loss of earning capacity productive of financial loss of 40% or more;
· rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment to a level that would take her over the statutory without injury threshold of $19,749.60 gross per annum; and
· the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable. In reaching this conclusion I had regard to where, on its facts, this case fitted when compared with other cases in the range of possible impairments or losses of body function.
107 It is unnecessary to consider the pain and suffering component of this application separately, as the plaintiff has established her right to leave in respect to her loss of earning capacity.
108 I propose to make an order granting leave to the plaintiff to commence proceedings in respect of pain and suffering and loss of earning capacity damages for right shoulder injury arising out of or in the course of the plaintiff’s employment with the defendant, in particular from about September 2009.
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