Dowdy v Gallagher Bassett Services Workers' Compensation (Vic) Pty Ltd
[2012] VCC 776
•5 June 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05082
| LYNETTE MARGARET DOWDY | Plaintiff |
| v | |
| GALLAGHER BASSETT SERVICES WORKERS’ COMPENSATION (VIC) PTY LIMTED | First Defendant |
| and | |
| GLENELG SHIRE COUNCIL | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 7, 8 and 9 May 2012 | |
DATE OF JUDGMENT: | 5 June 2012 (Revised) | |
CASE MAY BE CITED AS: | Dowdy v Gallagher Bassett Services Workers’ Compensation (Vic) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 776 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the left shoulder – right shoulder – compensable injury – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(16)(b), 134AB(37) and (38).
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz, Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dordev v Cowan [2006] VSCA 254;
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Drew Gleeson Legal |
| For the Defendants | Mr P Elliott QC with Mr J Batten | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the second defendant on or about 9 August 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body functions relied upon in this application are the left and right shoulders.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. The plaintiff’s chiropractor, Dr Forster, was required for cross examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged sixty three, having been born in February 1949. She is married and lives with her husband on a dairy farm at Myamyn.
7 The plaintiff was educated to Form 4 and thereafter did mothercraft nursing. She worked in that field over the years, commencing work with the second defendant in 2002. During 2004, the plaintiff completed Certificates II and III in Children’s Services.
8 In cross examination, the plaintiff confirmed that before the said date she considered herself relatively fit and healthy. She had injured her back at one stage, which she agreed was in April 2006, when lifting a child. She attended a chiropractor who advised her that something was out of place. She had had problems with her knees, particularly the right, which had come on over the years, as had low-back and neck pain and stiffness.
9 The plaintiff was asked about her attendances at the chiropractor before the said date. She agreed that she had been going to the clinic, where she now sees Dr Forster, for some years but could not remember if it was as far back as 1999. She may have had some treatment for her shoulders but she could not remember. She had manipulative treatment, mainly for her knees, back and neck to get her body in order.
10 The plaintiff agreed that the chiropractic manipulative treatment before the said date was to deal with a problem lifting children at work and it could have been to keep her going with those duties. She did not remember having shoulder problems prior to the said date.
11 The plaintiff’s duties as a mothercraft nurse with the second defendant involved working at the Mitchell Park Childcare Centre (“the Centre”) as a child care attendant. She worked three eight hour shifts per week, earning approximately $515.00 gross per week.
12 On the said date, the plaintiff was working in the Duckling Room at the Centre. The plaintiff was doing the nappy round and carrying an eighteen month old child, Noah, from the change room when she proceeded to exit the area. She was carrying Noah on her right hip and holding him with her right arm. The plaintiff leant out with her left hand to open a gate, a photograph of which was tendered by the defendants. As she went to grab the gate, it swung open, causing her to lose balance (“the incident”).
13 In cross examination, the plaintiff described how the gate opened more quickly than it had done previously. She then lost her balance, and trying to protect Noah, she fell on both knees with her left arm outstretched. She also grazed her right forearm.
14 At the time of the incident, the plaintiff’s immediate concern was for Noah’s safety. She was terrified he might have been hurt in the incident. She picked herself up and gave him a cuddle. She was very upset, shaken and tearful and she also had pain in her left hand.
15 Kate Lyons, a fellow worker, came and asked the plaintiff if she was alright. By then, the plaintiff’s left hand was sore.
16 The plaintiff completed an incident report and her supervisor, Kate Williams, suggested she leave work for the day. On her way home, the plaintiff attended her doctor, Dr Fox, and explained to him what had happened. She was still very upset and he gave her a certificate putting her off work.
17 On 20 August 2007 when the plaintiff first attended the chiropractor after the incident, she reported her shoulders were sore.
18 On 21 August 2007, the plaintiff lodged a WorkCover claim for stress and injury to her left hand. She agreed that the claim form signed by her set out she had a contused left hand, and Anxiety and Post-Traumatic Stress. There was no reference to her left shoulder. The plaintiff did not feel her shoulder on the said date.
19 The plaintiff agreed that in a statement made by her on 12 September 2007, five weeks after the incident, she mentioned hurting her hand only and it felt fine when she made the statement. She was then more worried about her mental health than her shoulders. They were a little bit sore. It was a short while after the incident, a couple of weeks thereafter, not on the day of the incident that her shoulders became sore.
20 In the weeks following the incident, the plaintiff remained extremely upset and could not stop thinking about how serious the injury to Noah could have been. She was extremely tearful and as a result, she was prescribed anti-depressant medication. However, that medication initially caused horrific nightmares and had to be changed. The plaintiff remained anxious about returning to work and was fearful of dropping a child.
21 The plaintiff commenced psychological treatment with Ms Yee in October 2007 on referral from Dr Fox. The plaintiff ceased treatment after six to eight months, as she thought she was okay.
22 In cross examination, the plaintiff was taken through the various certificates provided by Dr Fox from her first attendance on 9 August 2007. The plaintiff agreed that the certificates, until a clearance for normal duties in December 2007 related to Anxiety and Post-traumatic Stress and the initial certificate also referred to a sore hand.
23 In November 2007, the plaintiff was cleared fit to return to work. She deposed she was then still experiencing some left hand pain and remained upset by what had happened. She commenced on light duties, including office work, sweeping floors and doing laundry. By 3 December 2007, she had returned to normal duties.
24 The plaintiff deposed that with the passage of time, she began to experience left shoulder symptoms, particularly noticeable upon her return to normal duties with repeated lifting of children.
25 In cross examination, the plaintiff described having pain in her left shoulder before then but when she returned to work on these duties full time it became worse lifting children. The pain was mainly in her left shoulder although she had also had pain in her right shoulder.
26 The plaintiff deposed that by early 2008 she had left shoulder aching. She returned to see Dr Fox and was given cortisone tablets. He also arranged for her to have a series of injections into her left shoulder. The plaintiff underwent seven injections in total.
27 In cross examination, the plaintiff said she told Dr Fox about shoulder pain before April 2008. She did not think there was a gap in her treatment with him between December 2007 and April 2008. She saw Dr Fox before then but he was not providing certificates. The plaintiff explained that when she returned to Dr Fox, she had pains all over her body. She could not remember then if she had had any tests for arthritis or had been told by him that he did blood tests for that condition. She did not understand she was then suffering from arthritis.
28 The plaintiff did not know the exact date of the onset of left shoulder pain. She confirmed stress and trauma were overriding the pain in her shoulder but the pain was there. The plaintiff could not remember when she first made a claim in relation to her shoulders nor could she recall the date she first obtained a certificate relating to her shoulders.
29 The plaintiff was asked about the letter of instruction to Dr Fox from her solicitors dated 7 April 2009. It could be correct, as set out in that letter, that the plaintiff initially suffered psychologically from the incident but in January 2008 she began to notice symptoms in her left shoulder which she believed related to the fall. She repeated that she probably noticed her left shoulder before that time but her stress was overriding other symptoms.
30 The plaintiff deposed that she continued at work throughout this period although on modified duties but she was unable to cope with sweeping floors, washing dishes and other housekeeping jobs.
31 The plaintiff deposed that this led to a falling out with her boss, Kate Williams, after which the plaintiff lodged a further WorkCare claim for stress.
32 In cross examination, the plaintiff agreed she did not tell Ms Williams about her shoulder problems until July 2008, when she produced a light duties certificate which referred to a shoulder injury in August 2007.
33 After that certificate, the plaintiff mainly did some office work and duties like folding up washing and doing dishes and wiping down tables.
34 In cross examination, the plaintiff described the office work involved folding bundles of catalogues. It was not a difficult task but the plaintiff had problems doing it within a defined period. In that regard, the plaintiff had an argument with Ms Williams, after which the plaintiff reported her for harassment. A meeting with Ms Mayberry was subsequently arranged at which it was decided the plaintiff would work in the Council offices.
35 The plaintiff was then moved into the Council offices and given alternative work which involved operating a computer, a skill she did not possess.
36 The plaintiff was then still thinking about the incident and the argument with Ms Williams. The plaintiff was also becoming very stressed about having to use the computer and she could not cope with that work. She felt her only option was to resign if she could not manage her normal duties either, and the thought of using a computer made the plaintiff feel nauseous and tearful.
37 Following the third day of computer work the plaintiff attended her doctor on the way home and he put in the stress claim for her. At that time the plaintiff’s shoulders were very sore from the computer work.
38 On 23 October 2008, the plaintiff resigned.
39 In cross examination, the plaintiff said that as of 2007, she was planning to work as long as she was able to and probably to retirement age which could have been sixty four or sixty five.
40 When asked about the chiropractor’s note of 14 January 2008 that the plaintiff was due to retire in a year, she said she did not mention the word retirement and that she told the chiropractor that she and her husband had discussed travelling in a caravan and trying to get work when doing so as they otherwise could not afford to travel.
41 The plaintiff agreed she resigned from her job in 2008. She left because of her shoulders and several other reasons, including arguments with management.
42 The plaintiff’s left shoulder continued to deteriorate despite treatment. In early 2009, she returned to Dr Fox and he arranged for an ultrasound which apparently showed a tear of the plaintiff’s left supraspinatus tendon.
43 Dr Fox then referred the plaintiff to an orthopaedic surgeon, Mr Sundaram, whom she consulted in February 2009. He referred her for an MRI scan the following month which she was later advised confirmed a tear of the tendon. As the plaintiff’s condition had not improved, surgery was recommended and an arthroscopic repair took place on 4 May 2009 funded by WorkCover (“the surgery”).
44 Following the surgery, the plaintiff’s left arm was in a sling for about six weeks, during which time she commenced physiotherapy with Mr Pritchard.
45 The plaintiff was reviewed by Mr Sundaram on 21 May 2009. He removed the staples from her left shoulder and reviewed the plaintiff regularly thereafter.
46 Improvement after the surgery took a long time and the plaintiff’s left shoulder is still not one hundred per cent.
47 The plaintiff deposed that by July 2009 she was experiencing some right shoulder problems which she attributed to using her right arm to protect her injured left shoulder.
48 The plaintiff agreed in cross examination that she had not mentioned a specific injury to her right shoulder in her affidavit.
49 In cross examination, the plaintiff was taken to the claim form signed by her on 20 July 2009 where she set out that she had hurt her right shoulder because of favouring her left. The plaintiff explained that she hurt her shoulder from overuse and she also injured her right shoulder in the incident itself.
50 On 27 July 2009, the plaintiff had an x-ray and ultrasound of her right shoulder. She returned to Mr Sundaram who advised her that the ultrasound showed a tear in her right shoulder.
51 While the plaintiff’s left shoulder gradually improved, her right shoulder continued to deteriorate and by the end 2009, she was having trouble lifting her right arm, particularly above shoulder level. Pain from her shoulders was disturbing her sleep.
52 At this time, Mr Sundaram gave the plaintiff a cortisone injection into the right shoulder which helped for a limited time. By mid January 2010, the pain had returned and Mr Sundaram sought approval for right shoulder surgery which was undertaken in March 2010 (“the second surgery”).
53 There were some complications following the second surgery and the plaintiff spent a day in intensive care and then two nights in the acute ward. For about six weeks after the second surgery she had to use her left arm more frequently. She tore the bicep muscle in her left arm twice in May and June 2010.
54 The plaintiff’s right shoulder condition improved after the second surgery but it is still not one hundred per cent.
55 The plaintiff recommenced psychological treatment with Ms Yee in 2010. The plaintiff was then having panic attacks. She saw Ms Yee on a monthly basis until June 2011 when Ms Yee moved to Perth. At that time the plaintiff was unsure as to her treatment future. She felt she would need ongoing treatment especially if put under stress. Her moods varied and she had good and bad days and was sometimes depressed and irritable and often anxious.
56 The plaintiff then thought about the incident every day and she had panic attacks. These attacks had eased but she still had two or three a week, during which time her heart rate increased, she got chest pain and discomfort, felt nauseous, dizzy and often had nervous diarrhoea and had a headache.
57 The plaintiff deposed she then worried more about things and was often anxious. She had experienced panic since the incident, again, something she had not had before. She developed eczema and had been advised that it was likely linked to her emotional upset. Her memory and concentration were not as good and she made notes to remember appointments.
58 As of June 2011, physical recovery had been gradual. The plaintiff had recently had weekly physiotherapy. She did exercises three times daily and usually took Panadol or Panadeine Forte as required. Since December 2010, she had also been having hydrotherapy weekly.
59 In June 2011, the plaintiff deposed she had intermittent pain in both shoulders fluctuating in severity present nearly all the time in one or both shoulders, and at times severe. It was frustrating because it was very rare to have a good day with both shoulders. Her sleep was then restless and often disturbed by pain, sometimes multiple times each night. Once woken, she often found it difficult to return to sleep.
Current Condition
60 At the present time, the plaintiff’s sleep continues to be disturbed because of her injury. She cannot recall a single time when she has slept undisturbed for the entire night. She cannot turn over in bed normally without her shoulders becoming painful. It often takes her a long time to return to sleep having rolled over. She avoids taking sleeping tablets, however she takes the painkiller, Codalgin Forte, three to four nights a week.
61 The plaintiff presently experiences pain on a daily basis, intermittent and fluctuating in severity and at times severe. She takes Panadol and Codalgin Forte for pain relief. She does not like taking painkillers during the day and takes them only when her pain is particularly bad. She feels painkillers make her dopey. The plaintiff estimates that she wakes five out of seven days each week with pain. Most mornings she goes for a walk which generally eases the pain. If it does not, she takes pain relief, usually once a week.
62 The plaintiff sees Dr Fox monthly for certificates although she does not require them. He gives her prescriptions for her blood pressure and the painkiller, Codalgin Forte.
63 In cross examination, the plaintiff was taken to the list of prescribed medication in Dr Fox’s notes. Codalgin Forte was prescribed on 14 December 2005 but there was no mention of any further prescription of that medication. The plaintiff maintained she was still being prescribed Codalgin Forte by Dr Fox and that she “could go and get the tablets right now”.
64 The plaintiff also takes two Panadol tablets probably at least once a day. She claimed the cost of medication from WorkCover until it ceased funding her medical expenses in April 2012.
65 The plaintiff does hydrotherapy once a week at Portland Swimming Pool organised by Dr Fox and an occupational therapist which she pays for herself.
Work
66 The plaintiff has not returned to work and she did not think that given her age and injury she would be able to do so. She has not looked for any work since leaving the second defendant’s employ.
67 In cross examination, the plaintiff said she thought maybe she could do some type of clerical work but she did not know what. She had not been trained as a receptionist for a doctor’s clinic and did not think she could cope with that job and would be hesitant to give it a go.
68 The plaintiff is not planning to look for a job. She would not describe herself as retired, she would say she is “in limbo”.
69 The plaintiff agreed she is able to do a wide range of activities but she had some limitation because of her shoulders. She agreed she was at home running the house, assisting when she could with the farm and helping with her daughter. She regularly sees her grandchild, looking after her three nights a week until her mother comes home form work.
70 Before the incident, the plaintiff considered herself to be relatively fit and healthy. She was busy with work and her family and around the home and property. All of that had now changed.
71 Prior to injury, the plaintiff enjoyed doing crafts such as sewing, quilting and knitting, but was restricted in what she now could do because she could not use her left arm or shoulder or right arm for repetitive tasks. She purchased an aid to use for sewing but found even after half an hour of craft work, she had to stop because of increasing pain.
72 The plaintiff now occasionally knits. She does a little craft work but not as much as she used to. After half to three quarters of an hour, her shoulders start to ache and she will go and do something else. She used to do craft work for hours before her injury.
73 Before the incident, the plaintiff enjoyed sailing and bushwalking with her husband. She has been unable to fully participate in those hobbies since. She also used to enjoy bike riding and swimming. She no longer went bike riding, and swimming freestyle was painful.
74 The plaintiff recently deposed that she went swimming regularly before the incident and rode her bike almost daily. These activities were good for fitness and her overall wellbeing but had been curtailed since the incident. Her shoulders became more painful if she attempted freestyle, backstroke or any other stroke. As a result, she now has hydrotherapy weekly and can do limited breaststroke.
75 The plaintiff does exercises gently and stops immediately if she feels pain. Until she recently gave her bike to her daughter, the plaintiff rarely rode it as she was worried that if she slipped over on the gravel she could re-injure her shoulders. She regularly used an exercise bike which she bought. She does not enjoy riding it as much as riding in the fresh air.
76 The plaintiff continues to walk daily and she does lower body exercises on Y Fit, in an effort to maintain her fitness. She walks about a kilometre or so around the farm checking things.
77 The plaintiff deposed that she and her husband were avid bushwalkers prior to her injury, going to a number of places in Victoria which they both enjoyed. Now the plaintiff’s level of bushwalking has decreased markedly. She finds it difficult to maintain her balance on open ground and worries if she falls she will re-injure her shoulders. She does not walk though rough bush. In addition, if she has to climb over any obstacles, it places undue strain on her shoulders and leads to an increase in pain.
78 The plaintiff also used to enjoy camping in National Parks with her husband. It has been extremely difficult for her to carry any equipment since hurting her shoulders and they have not been camping since. She can no longer comfortably carry a backpack and her ability to set up a camp would be restricted. Getting into and out of a tent and the bed would be awkward and sleeping on a camp mattress would also be difficult as she has problems with her normal bed.
79 Prior to the incident, the plaintiff and her husband used their caravan at least three or four times a year. They went to the Port Fairy Folk Festival regularly and travelled to Adelaide, along the coast, and went to Central Victoria and The Grampians. It was easy to get away. The caravan stayed ready and they simply headed off. The plaintiff can recall having only used the caravan once since the incident and she found it very awkward because of the confined space. Stepping in and out of the van was a little difficult and could be painful. The plaintiff and her husband both missed the freedom of this travel.
80 In cross examination, the plaintiff confirmed she and her husband were planning to travel around Australia in a caravan in 2008/9. She was considering the trip. They had only discussed it and had not made any plans. They did not have enough money to travel without working.
81 Since the incident, the plaintiff and her husband have been on holidays to the Gold Coast and New Zealand and have also driven to various places around Victoria.
82 Shopping is now difficult because of the plaintiff’s shoulders. She has problems with doors in shopping centres. When she does grocery shopping, she tries to do so with her husband as she finds it difficult to reach high shelves and painful to load and unload bags to from the trolley, and difficult to manoeuvre the trolley. If alone, she gets help from the staff. She also requests bags be packed only half full and she carries them using both hands. She also asks for assistance from staff to carry shopping into the car.
83 The plaintiff and her husband had begun renovating and modernising their farmhouse prior to the incident. She used to assist him with renovating but has not been able to be actively involved since the incident. They have already altered several of their plans for renovation, installing a double shower to assist the plaintiff when showering and her husband helps her wash. Easy clean surfaces have been installed for simple cleaning, and drawers have been installed below the plaintiff’s head level.
84 In cross examination, the plaintiff described how she has assisted with renovations in a passive role, fetching and carrying and doing simple jobs that did not require force on her shoulders. She can do a little painting.
85 The renovations have involved virtually modernising the house, putting in a new bathroom and kitchen. They are probably half completed with the completion date being very uncertain.
86 The plaintiff and her husband had to buy an automatic car as she could not manage the manual. She found it difficult to drive for longer than about half and hour. Using the steering wheel for too long usually caused increased pain.
87 When the plaintiff goes out with her husband, she usually does not drive for longer than half an hour because her shoulders start aching.
88 The plaintiff’s husband presently works as a truck driver five days a week from 3:00 to between 11:00 and 14:00.
89 The plaintiff still does most of the housework and cooking but takes her time and is much slower and tries to break it into smaller sections. She does not cook with heavy pots or pans. She obtained a double-handled frypan and electric openers to assist her with simple tasks.
90 The plaintiff does most things like vacuuming, dusting and mopping for about only half an hour and then has a rest and comes back to the task the next day. The plaintiff cannot move cupboards, couches, beds and other furniture to clean under them as she does not have the strength in her arms to do so and has to wait for her husband to help her.
91 The plaintiff puts the clothes on a clothes horse rather than hang them on the line.
92 The plaintiff has difficulty with simple tasks such as turning taps on and off because of decreased strength in her hands. She had to purchase front fastening bras and loose garments due to her reduced motion. She had difficulty tying up her shoe laces.
93 The plaintiff has purchased numerous household and domestic aids to assist with her shoulder injuries. Despite numerous modifications to her lifestyle, she continues to have difficulty participating in activities which she enjoyed prior to the incident.
94 Prior to the incident, the plaintiff enjoyed maintaining the garden largely on her own but she now has to rely on her husband. She has difficulty starting and pushing the lawn mower because of reduced strength in her arms. She still tries to maintain the garden beds by occasionally pulling out weeds. She does not do any planting. She has to pace herself and do a little at a time and come back to the same tasks day after day.
95 The plaintiff and her husband recently installed a split system air conditioner, replacing the traditional wood heater because the plaintiff is no longer able to comfortably split the firewood and cut kindling like she used to. She is also unable to carry bags of logs. The plaintiff last chopped wood about six or seven years ago. Her husband carries small logs.
96 In re-examination, the plaintiff described how before her injury she was much more active on the farm, driving a tractor, putting out the hay, doing fencing and digging.
97 The plaintiff used to help her husband from time to time around the property with fencing and the like but she is now restricted in her ability to do so because of the loss of strength in her arms and pain in shoulders. She usually just hands her husband tools. She avoids activities involving the cattle and is greatly upset by the passive role she is now forced to undertake on the farm.
98 The plaintiff now avoids driving the tractor as it is difficult to get on and off and it is also difficult to steer. She has only driven once since the incident that she could recall. At that time her shoulders hurt. The heavy steering mechanism also aggravated the plaintiff’s pain.
99 The plaintiff walks around the property checking stock. She tells her husband if anything needs to be fixed. She does not do very much manual work at all now. She confirmed that she had not driven a tractor recently but did try once after the accident and it hurt so she stopped. She would get tools for her husband. She might hold ropes and a torch but she did not do actual drenching or anything else with the cattle. She herds them up behind everybody else.
100 In cross examination, the plaintiff was asked about her administrative role on the farm, which has twenty five to fifty head of cattle. The property is operated in partnership with her husband, with them being equal partners. Whilst it is a fifty-fifty partnership split, the plaintiff does not do fifty per cent of the farm work and does very minimal work at present.
101 The only paperwork the plaintiff has done for the partnership was putting some entries in the computer for its taxation return twice in the last five to seven years but she has never done book work as Dr Newlands described. The plaintiff pays some farm bills but does not do the books.
The Plaintiff’s Income
Financial Year Gross Amount 2005 $25,637.00 2006 $26,787.00 2007 $17,981.00 2008 $21,025.00 2009 $9,908.00 2010 $4,946.00 2011 $30,670.00
(compensation payments)
The Plaintiff’s Medical Evidence
102 Dr Fox reported on 30 October 2008 that he had treated the plaintiff since 1 August 2003. Prior to the incident, she was not treated for anxiety, depression, left arm or shoulder problems.
103 When Dr Fox first saw the plaintiff on the said date, she was in a state of severe panic with rumination that she had almost squashed the child. She had a sore left hand following the incident and over subsequent months she noted the development of stiffness in her left shoulder consistent with tendonitis from straining her left rotator cuff in the incident.
104 As at October 2008, with frequent counselling from Dr Fox and Ms Yee, anti-depressants and time, the plaintiff’s Post-traumatic Stress Disorder (“PTSD”) improved.
105 However, whilst on modified duties, the plaintiff was forced to perform computer work and the Panic Disorder recurred and she commenced ruminating about her inability to perform her duties and feeling that the second defendant was not supporting her working. The plaintiff felt she was being pushed to the point of cracking so she would resign. She had been referred back to Ms Yee and she was having steroid injections into her left shoulder rotator cuff.
106 Dr Fox thought the plaintiff had had a relapse of PTSD working on a return to work without adequate support. He thought she was otherwise fit for caring for young children and he expected a return to near full functioning of the left shoulder over the next six to nine months, although he considered the plaintiff may require further steroid injections in the future.
107 On 28 January 2009, Dr Fox reported that the left shoulder ultrasound showed a full thickness tear of the supraspinatus tendon. He noted the plaintiff had residual power and active movement in her supraspinatus, suggesting there were intact fibres, even though the ultrasound suggested a complete tear. He noted the tear developed with continued use of the plaintiff’s shoulder but was due to the incident.
108 Dr Fox referred the plaintiff to Mr Sundaram. Dr Fox believed there was a good case for continued conservative management as there was residual power despite the tear, although he would defer to an orthopaedic surgeon. He noted the plaintiff’s anxiety levels were improving with counselling and confirmed a further six to nine months off work would help her recover from the torn supraspinatus and her anxiety.
109 Dr Fox reported in November 2009 regarding the plaintiff’s emotional trauma following the incident. He noted she did not complain of right shoulder problems when initially treated after the injury. He reported the left rotator cuff collapsed, requiring surgical repair. It became apparent the right shoulder was not normal with its overuse. The plaintiff then developed a right rotator cuff tear which was probably a direct result of overuse, thus a consequence of the left rotator cuff tear and the work injury.
110 In August 2010, Dr Fox reported the plaintiff had bilateral rotator cuff tears, noting she had to alter her bra, change her motor vehicle and buy a sewing table to deal with problems with her restricted movement and shoulder pain.
111 Dr Fox completed a medical questionnaire in February 2012 diagnosing bilateral stiffness in shoulder, stiffness and pain in shoulder from rotator cuff tears and repairs. He was then providing cognitive therapies and analgesics with Panadeine Forte to enable exercise and sleep. He noted the plaintiff still required assistance from her husband at home.
112 In March 2012, Dr Fox reported the plaintiff remained restricted in movement in both shoulders. She had a temporary positive rheumatoid factor but other markers showed no evidence of rheumatoid arthritis. He noted the positive factor was probably due to an infection. He prescribed a trial of Prednisolone but that was not successful in improving function, but excluded PMR and RA as a cause of the plaintiff’s shoulder pain and stiffness. He noted the plaintiff’s pain levels were reduced greatly with the surgery but she still required assistance putting out the clothes on the line. The plaintiff remained circumspect with her behaviour and thinking rather than her usual matter of fact behaviour as a residuum from her traumatic event.
113 Ms Yee, psychologist, first reported in November 2008, having commenced sessions with the plaintiff on 29 October 2007 on referral from Dr Fox.
114 At the time of the initial session, the plaintiff had gradually returned to working her usual three day week. She continued to have some psychological symptoms and was nervous, upset and scared.
115 In a second session in November, Ms Yee felt the plaintiff was much improved. On the final session on 19 November 2007, the plaintiff had returned to work and she was confident she could cope. Her file was then closed.
116 On 4 September 2008, the plaintiff returned to Ms Yee, recalling heightening of stress over the last couple of weeks as her shoulder injury appeared to have limited her capacity to work her normal hours and she became depressed and irritable. From thereon, the plaintiff developed a psychological aversion towards her temporary work on the computer. She used her left hand, as she was left handed. The dull pain that began in the left hand and shoulder began to have shooting pains in the plaintiff’s left side and she felt weak.
117 Ms Yee noted the plaintiff’s presentation was very different on recommencing treatment. She had heightened irritability, pessimism and anger. Ms Yee reported she was surprised when she saw the plaintiff in late October. The plaintiff had resigned without consultation with her doctor or solicitor. She noted the plaintiff’s frustration boiled over as she underwent the process of her WorkCover application.
118 Ms Yee thought the plaintiff felt a sense of hopelessness and despair as she did not realise that a fairly minor incident had wrought a number of PTSD symptoms.
119 Ms Yee reported again in July 2011. She noted the plaintiff had stopped sessions with her in October 2008 when WorkCover refused to pay for counselling.
120 Ms Yee next saw the plaintiff in November 2010 after her right shoulder operation which the plaintiff said had been quite successful, although it was still limiting in certain functions.
121 The plaintiff reported being up and down in her moods, seeming to get highly emotional over negative events. She had also commenced recording experiences of panic attacks until May 2011, when she improved with treatment.
122 By April 2011, the plaintiff reported psychological improvements, hence monthly sessions were deemed to be appropriate. Ms Yee last saw the plaintiff on 7 June, at which time the plaintiff reported she had improved psychologically, in the sense that she no longer became emotionally labile, as she had been over the last couple of years.
123 Although the plaintiff’s shoulder remained somewhat recalcitrant every so often, the plaintiff agreed with Ms Yee that she had utilised the strategies to help her move on and not be continually haunted by the incident. Ms Yee felt once the plaintiff’s claim was settled she would not look back, and that was as good an outcome that anyone could expect in the plaintiff’s situation.
124 Mr Sundaram, orthopaedic surgeon, first saw the plaintiff in February 2009. The plaintiff told him that in the incident she fell on her outstretched left hand and felt discomfort in the shoulder which gradually got worse.
125 Following that first examination, having had various investigations made available to him, Mr Sundaram carried out an arthroscopy of the plaintiff’s left shoulder on 4 May 2009. During that procedure, the rotator cuff was decompressed and the torn tendon repaired.
126 Mr Sundaram noted the post operative period was uneventful and the plaintiff had her arm in a sling for about six weeks and did exercises. She was then seen regularly after 12 June 2009.
127 When seen on 30 September 2009, the plaintiff felt her symptoms had improved. On 4 November 2009, she presented with a history of experience of right shoulder pain of six months’ duration with no precipitating cause. She had difficulty lifting her arm and reaching above shoulder level and pain disturbed her sleep at night.
128 On examination, there was weakness of the supraspinatus muscle with signs of impingement of the rotator cuff. Investigations were then carried out and the plaintiff underwent a hydrocortisone injection with local anaesthetic into the subacromial space of her right shoulder. However the plaintiff’s symptoms recurred and she later underwent surgery.
129 When Mr Sundaram saw the plaintiff on 25 November 2009, he thought the condition of her left shoulder had improved significantly, except for aching on and off. She had a good range of pain-free shoulder movements and she was discharged, as far as her left shoulder was concerned.
130 When Mr Sundaram last saw the plaintiff on 15 December 2010, she felt the condition of her right shoulder was not too bad. She had almost full range of movement and she had good strength in the muscles of the rotator cuff and she was advised to continue with her exercises.
131 Mr Sundaram concluded that the plaintiff suffered with bilateral rotator cuff pathology of both shoulders. He noted after the two operations, the condition of the plaintiff’s shoulders improved significantly. He thought it likely her condition may improve further, although a few residual symptoms may persist.
132 Mr Pritchard from South Western Physiotherapy first treated the plaintiff on referral from Mr Sundaram on 26 May 2009 and reported on 25 August 2011.
133 The plaintiff told him of the incident and that her left shoulder was painful and she remained off work until the end of 2007.
134 On 9 July 2009, Mr Pritchard examined the plaintiff’s right shoulder. She told him it had been painful for about eight months and investigations were then carried out. Mr Pritchard noted the plaintiff progressed satisfactorily after the right shoulder surgery. In November 2010, she had a setback with the left shoulder.
135 On review in February 2011, the plaintiff was still complaining of aching in the right shoulder and a little on the left. Mr Pritchard saw the plaintiff fortnightly until 1 April 2011. He noted her symptoms had stabilised and did not require further physiotherapy.
136 In terms of prognosis, Mr Pritchard thought the plaintiff could expect the usual from those operations with good pain relief and improvement in shoulder function but never one hundred per cent. He noted her shoulders remained a little weak and stiff but usually functioned quite well. In his view however, the plaintiff was no longer suited to heavier work and as such, she would not be able to return to childcare as she would not be able to repeatedly lift children.
137 The plaintiff underwent an evaluation by an occupational therapist, Ms Maloney from Heywood Rural Health, on 15 July 2010 for the purpose of assessing her occupational performance in home based activities of daily living.
138 Ms Maloney noted that the plaintiff had made significant changes to her daily life to compensate for her injured shoulder. The plaintiff had to replace a number of active hobbies and leisure activities with more passive activity. Further, the plaintiff had experienced significant emotional and psychological distress and financial expenses from purchasing aids.
139 Ms Maloney concluded, from an occupational therapy perspective, the impact that the plaintiff experienced was far reaching and had altered her sense of self, her confidence, her productivity and her day-to-day life.
140 Ms Maloney thought despite that, the plaintiff had demonstrated resilience and perseverance during the rehabilitation from her injury and had done as much as possible to regain her health and normal lifestyle. She recommended the plaintiff be provided with a number of aids.
141 Dr Forster from Portland Chiropractic Centre reported on 10 February 2012.
142 Dr Forster noted that the plaintiff presented at his clinic on 20 August 2007 following the incident. She was a patient at the clinic prior to that time from 30 December 1999 to 10 July 2007. During that period, she received treatment every six weeks for low-back pain, headaches, neck pain and stiffness, mid back and right knee pain.
143 In his viva voce evidence, Dr Forster described such treatment as maintenance type treatment to keep signs and symptoms in check.
144 Dr Forster reported in February 2012 that after the incident, the plaintiff’s left hand swelled up; she was unable to work until early October 2007; she underwent counselling, both shoulders were sore after the fall; range of motion was extremely decreased; muscle testing indicated reduced strength and lifting children aggravated symptoms. He noted surgery was performed on both shoulders and physiotherapy undertaken for a year after each operation.
145 Since the incident, the plaintiff had had ten treatments at the clinic with four in 2007, three in 2008, two in 2011 and one in 2012. Dr Forster diagnosed upper cervical spinal dysfunction, bilateral shoulder rotator cuff impingement and mid thoracic spinal dysfunction.
146 Dr Forster noted that the plaintiff’s prognosis was extremely poor due to the long term nature of the injury and persistence of signs and symptoms. He thought that the minor degenerative change was a minor contribution to the plaintiff’s current signs and symptoms. In his view, the plaintiff would need to receive further treatment and participate in some regular strengthening.
147 Having been told of the mechanism of the incident as described by the plaintiff in her viva voce evidence, Dr Forster said in examination-in-chief, the signs and symptoms after the injury were consistent with a fall onto the outstretched arm, causing the force to go up the arm and injure the shoulder joint.
148 In examination-in-chief, Dr Forster confirmed that prior to 2007, the plaintiff was not being treated for any shoulder problems. She initially attended for lower back pain and was treated for mid thoracic and neck pain on a maintenance type basis. He confirmed that there was no mention of any techniques being performed on the plaintiff’s shoulders prior to 2007.
149 The manipulative treatment performed to the other parts of the plaintiff’s body was to keep her body in order. It was on a maintenance type basis, six weekly or so, just to keep the signs and symptoms of lower and mid back pain and her cervical symptoms in check.
150 Dr Forster confirmed there was a reference to left trapezius, amongst other areas, in an entry on 20 August 2007 where a fall at work was noted.
151 In cross examination, Dr Forster was asked to decipher the notes of the practitioners previously involved in the treatment of the plaintiff at his clinic. He ultimately agreed that “SH” was the chiropractic shorthand which he would use to describe the shoulder.
152 Dr Forster was taken through the clinic’s notes from 30 December 1999. He agreed that there was a reference to “SH” on that date. “Soft tissue” in his notes indicated soft tissue techniques like massage and trigger-point therapy. There was treatment to a shoulder on 6 January 2000, but he did not know what sort of treatment had been given. It could have related to muscles around the shoulder.
153 On 23 February 2000, there was reference to the right supraspinatus being worked on; namely, the muscle that runs from the cervical spine across to the shoulder joint.
154 Dr Forster explained he did not know that the plaintiff had later been diagnosed as having a tear of the supraspinatus. He did not have any history of there being any tears in either shoulder and did not know the reason for the two later operations. When he assessed the plaintiff, he found the supraspinatus to be affected.
155 On 24 March 2000, there was another reference to shoulders. On 20 April 2000, there was a reference to “soft tissue shoulder” with continuing references in similar terms through until 23 October 2000, where “shoulder” or “shoulders” was noted first in the list of treatments. It seemed the right shoulder was treated on that latter occasion.
156 There were entries of “left soft tissue shoulder” in December 2000. There was an entry for “right shoulder soft tissue” in April 2001 with a note of “soft tissue techniques” to the shoulder. Similar entries continued until 27 June 2001, when the shoulder was again mentioned first in a list of the areas treated.
157 There could be a reference to left shoulder on 20 September 2001. Dr Forster agreed he probably would not write down the body part unless he was giving it some treatment. He agreed similar entries went through to early 2002. There was a notation of right shoulder on 27 September 2002.
158 In July 2004, neck and shoulder tightness was noted. There was a reference to the shoulder in September 2004. Soft tissue techniques for the right shoulder were noted on 18 October 2004.
159 The trapezius was first mentioned on 2 May 2005 with a history of the plaintiff experiencing problems milking the cows. On 22 February 2006, there was a reference to “traps, bilateral trapezius muscles”. On 4 April 2006, “bilateral trapezius” was noted, which indicated there was treatment to that area.
160 There was a note of 7 April 2006 “hurt back, mid back lifting child at work, right side lower ribs”. On 5 June 2007, “right trapezius and levator scapular” was noted.
161 On 20 August 2007, the first attendance after the incident, there was treatment for a wide variety of complaints, including a reference to the left trapezius.
162 On 2 October 2007, it was noted “not feeling too bad, seeing a counsellor”. There was a reference to the lower back and no mention of shoulders. On 19 November and 17 December 2007, lower back, thoracic hips and neck were treated. The shoulder was not mentioned.
163 The plaintiff next attended on 14 April 2008, when it was noted, “working in childcare, so needed treatment. OK to do manual adjusting” which Dr Forster explained was a more invasive treatment than using an activator. Adjustments or manipulations really relate to the spine, not the extremities. He agreed there was no treatment for the shoulder on that occasion.
164 On 26 May 2008, there was an entry of rheumatoid arthritis with a note that there had been a diagnosis in that regard and blood tests had been ordered. There was no treatment to the shoulders.
165 On 10 July 2008, it was noted the left shoulder was sore and that the plaintiff had been sent for blood tests.
166 There was no further treatment until 8 December 2011, when Dr Forster took over the plaintiff’s care. There is no reference to the shoulder on that date or on examination by him. Dr Forster then noted the plaintiff’s neck had been stiff on and off since the fall and there had been surgery on both shoulders.
167 Dr Forster did soft tissue work on the plaintiff’s bilateral shoulder regions in January 2012.
168 As a result of the request from her solicitors, Dr Forster saw the plaintiff on 27 January 2012. He then took an extensive history, noting the plaintiff had a sore left shoulder in September 2007, which was further aggravated by lifting children.
169 Whilst there was no reference in his notes or reports to both shoulders being sore after the incident, Dr Forster said it was obvious this was the case because the plaintiff had had surgery to both shoulders and she had difficulty doing tasks with her shoulders. He was not aware of the date the plaintiff finished work, or that the first certificate relating to her shoulder was July 2008, and earlier certificates related to a stress claim.
170 Dr Forster agreed that if there was a tear and a fall damaging the shoulder, pain would be felt and one would expect there to be pain in the shoulder. Sometimes one would expect pain to come on within a reasonably short period of time.
171 Dr Forster was reminded of the first reference to arthritis in April 2008 and a specific shoulder diagnosis in July. In his view, it was not necessarily very difficult to associate the shoulder condition with the incident on that history, because damage can show up much later on. He would have thought there would be symptoms in a shorter time though, before eight to eleven months after the fall. He considered it was very hard to quantify what would have been the progress of the degenerative condition. Even with the delay in reporting the shoulder condition, he thought the fall would have to have had an impact on the plaintiff’s shoulders.
172 However, Dr Forster agreed that if there was a tear of the supraspinatus resulting from the incident, the likelihood was that the plaintiff would have experienced pain much earlier than April 2008.
173 Dr Forster confirmed the entry of 10 July 2007 included a reference to bilateral trapezius problems.
174 On 20 August 2007, Dr Forster thought there was no treatment on the left trapezius but then said there was possibly soft tissue treatment but there was no note to this effect.
175 In re-examination, Dr Forster confirmed that prior to the incident, the plaintiff had received maintenance type treatment, just keeping her going at a certain level. This type of treatment was peculiar to massage, chiropractic acupuncture and physiotherapy treatment where patients are treated depending on their symptoms.
176 Having reviewed his notes, Dr Forster formed the view that before the incident, the plaintiff had undergone maintenance type treatment and he would have to talk to the chiropractor who performed the various procedures to get further details.
177 Dr Forster explained that in the clinic’s notes pre incident, there was no explanation as to why the plaintiff attended for her shoulder and no reference to her saying it was sore. Most of the time, the plaintiff mentioned headaches, neck pain, and she did not mention her shoulders at all.
Medico-Legal Examinations
178 Professor Marshall first examined the plaintiff on behalf of GIO Insurance on 26 September 2008 and re-examined her on 30 July 2009.
179 The plaintiff told him that she had pain in her left hand after the incident and subsequently developed left shoulder pain after falling on her outstretched hand. Her fingers were bruised and swollen but she noted after these had settled, her shoulder was increasingly painful.
180 The plaintiff also described stresses at work and harassment which was followed by a conciliation meeting.
181 On initial examination, there was full range of movement bilaterally. There was minor local pain at the extremities of movement. There were no vascular or neurological abnormalities in the upper limbs.
182 Professor Marshall diagnosed resolving left shoulder musculoligamentous work strain injury. He accepted that the plaintiff had suffered a work injury with probable rotator cuff strain. He thought it would be appropriate for an x‑ray and ultrasound but noted the plaintiff’s symptoms were improving physically.
183 Professor Marshall thought the plaintiff could return to work on modified duties with restricted lifting and no overhead work. On physical grounds, he considered she would be fit to resume modified duties and further treatment would be best by a self maintenance program and maintenance strategies.
184 Professor Marshall thought the plaintiff was not fit for return to full time duties as a childcare worker and that she may be permanently unfit for that activity depending on her progress.
185 On re-examination, the plaintiff told Professor Marshall she had developed right shoulder pain about two months after the incident, after a return to work when she used her right arm more.
186 The plaintiff told Professor Marshall her current problem was predominantly persisting right shoulder pain, in relation to which she had yet to have treatment. Her left shoulder remained rather stiff and weak but it continued to improve since surgery.
187 On examination, the plaintiff had restricted shoulder movement. There were no neurological abnormalities. There was no evidence of arthritis elsewhere in the upper or lower limb.
188 Professor Marshall diagnosed an initial left rotator cuff strain leading to surgery and subsequent right rotator cuff strain secondary to the injury to the left shoulder. He accepted that the plaintiff had persisting left and right shoulder pain and limitation of movement as a result of the compensable injury, with the right shoulder problem being secondary to the injury to the left. In his view there was no evidence of functional overlay or exaggeration.
189 Professor Marshall thought the plaintiff remained permanently unfit for her pre-injury employment. He considered she may, on physical grounds, be fit for very light office work not involving lifting or overhead work, but she was likely to require continuing treatment for her right shoulder symptoms and she may require further injections or surgery.
190 Professor Marshall thought the plaintiff’s condition had not stabilised and her employment remained a materially contributing factor contributing to her incapacity.
191 Mr Schofield, orthopaedic surgeon, initially examined the plaintiff in August 2010, and re-examined her in February 2012.
192 On the first examination, the plaintiff claimed no history of any problems with either shoulder joint.
193 The plaintiff told Mr Schofield that she fell on her left side and left shoulder in the incident. She told him that she was unable to work following this injury until October 2007, during which time she had injections and medication and was also referred to physiotherapy. Although there had been a minimal amount of shoulder pain initially, with a return to work for some weeks with a gradual increase in duties, she noticed the onset of pain in her right shoulder.
194 The plaintiff told Mr Schofield that the right shoulder was better than prior to surgery and the left had been improving initially then she had had a recurrent attack of acute pain in June 2010.
195 On examination, there was no tenderness on either shoulder. There was a positive impingement test on the right and restriction of movement. There was also restriction of left shoulder movement and a very positive impingement test on the left.
196 Mr Schofield noted Professor Marshall’s report of October 2008.
197 Mr Schofield concluded the plaintiff was fit prior to the incident in which she injured both shoulders. A full thickness tear was confirmed of both shoulders. Mr Schofield thought it was clear the plaintiff was likely to have had non symptomatic degenerative changes in the rotator cuff prior to the incident – a common finding in asymptomatic patients of her age which was a result of natural wear and tear.
198 Mr Schofield noted, however, in the plaintiff’s case she had suffered a traumatic event in the incident. The fall severely affected the left arm but no doubt put significant stress on the right arm whilst preventing the child from being injured. In addition, he noted the overuse of the right arm was likely to have increased the initial tearing on the right which may have been a partial to a complete tear.
199 Mr Schofield thought that surgery was unlikely to be totally successful in view of the pre existing degenerative changes. He considered that over time, the plaintiff’s clinical symptoms should improve and her symptoms lessen but there would always be a limitation in the type of work that she was able to do. He thought her condition had not stabilised.
200 In terms of prognosis, Mr Schofield considered the plaintiff was permanently unfit to resume her previous occupation. He thought eventually she may be able to resume normal duties but she would need retraining into computer skills.
201 Having been provided with Mr Dooley’s report, Mr Schofield commented that the plaintiff presented as an honest witness without any evidence of functional overlay and her history of symptoms was consistent with the type of injury.
202 Mr Schofield confirmed his clinical examination dealt with the organic problem and that there was no evidence of any overreaction to examination, functional overlay or adverse illness behaviour. Further, investigations were consistent with the injury suffered.
203 Mr Schofield confirmed that the degenerative changes in both rotator cuffs were non symptomatic until the incident – a common finding. He thought the acute traumatic incident was the total cause of the plaintiff’s symptoms and ongoing disability. Whilst there was an expectation of a gradual improvement after surgery, he considered it was unlikely that the plaintiff would become totally asymptomatic.
204 Noting Mr Dooley had implied there had been a significant contribution from non orthopaedic aspects, Mr Schofield confirmed his belief that the tearing of the cuffs was the sole cause of the plaintiff’s inability to return to work, a condition she did not have prior to the incident. He did not agree that the plaintiff would have had tears in the rotator cuff prior to the incident. Degenerative changes, yes, but tears in the rotator cuff, no. He confirmed the plaintiff suffered a significant traumatic event, which he believed was the sole cause of her tears that required surgery.
205 On re-examination by Mr Schofield, the plaintiff had a slight dropping of the left shoulder. She was tender bilaterally over the anterior aspect of each joint. There was some limitation of shoulder movements.
206 Mr Schofield concluded the plaintiff continued to have persistent symptoms in both shoulder joints which initially occurred as a result of the rotator cuff tear affecting the left shoulder joint and probably due to preferred use of her non dominant right arm. To protect the left shoulder, the plaintiff had developed a rotator cuff tear on the right.
207 Mr Schofield noted the plaintiff’s current limitation was likely due to either further tear of the rotator cuff or further degenerative changes, which had occurred as a result of the aggravation from her work. He thought she needed further investigations and requested same.
208 Mr Schofield considered the plaintiff’s prognosis remained guarded, and even if further surgery was carried out, he thought it would be unlikely that a satisfactory result could be achieved. He considered the plaintiff was permanently unfit for any employment which involved use of her arms and shoulders.
209 Mr Schofield noted that the MRI scans of both shoulders and the x-rays confirmed there was a permanent injury and damage to each shoulder joint. Mr Schofield doubted if any further surgery would benefit the plaintiff in view of the wasting of the supraspinatus muscles and tendons which would not withstand a further repair in the long term.
210 Mr Schofield confirmed he considered the plaintiff was permanently unfit for her pre-injury work or any other duties purporting to her education, training or experience. He thought it likely, in the long term, she would develop gradually increasing pain and limitation of movement. He thought surgery for arthritis of each shoulder joint may be necessary in the future, but in the meantime he considered it would be advisable for the plaintiff to have some gentle physiotherapy and medication.
211 Mr Kierce, orthopaedic surgeon, examined the plaintiff on behalf of GIO Insurance on 28 March 2011.
212 The plaintiff told Mr Kierce she had never had any trouble with her shoulders prior to 2007.
213 The plaintiff told him of the incident where she opened a gate, landing on her outstretched left arm, which caused bruising of her left hand and soreness in her left shoulder. She saw her general practitioner, who put her off work until October 2007, prescribing non steroidal anti-inflammatory medication.
214 The plaintiff told Mr Kierce that, following surgery, her left shoulder gradually improved but it was still not one hundred per cent, although it was now better than it was pre operatively.
215 Mr Kierce noted that in November 2009, the plaintiff returned to see Mr Sundaram because she had been suffering with right shoulder pains for some six months.
216 On examination, Mr Kierce found wasting of the supra scapular and deltoid muscles of the right shoulder and tenderness over the anterior aspect of the right shoulder and the right acromioclavicular joint. Impingement test was negative and there was no crepitus on shoulder movements.
217 There was definite wasting of the left deltoid muscle and tenderness over the left acromioclavicular joint and over the anterior aspect of the rotator cuff. The impingement test was positive and there was no crepitus on left shoulder movement.
218 Mr Kierce had available to him x-rays, the right shoulder ultrasound and the MRI of the left shoulder undertaken in March 2009. He diagnosed work-related bilateral ruptures of the rotator cuff.
219 Mr Kierce thought the plaintiff’s injuries were not likely to resolve and that she would have a permanent weakness in her shoulders. He thought she was unfit to return to her pre-injury occupation as a childcare worker as she did not have the strength to lift children safely. If the plaintiff was involved in this work, he considered there was the likelihood she would sustain further ruptures of the rotator cuffs.
Investigations
220 An ultrasound of the left shoulder was organised by Dr Fox in January 2009. It was reported there was a complete rupture of the supraspinatus with retraction of tendon fibres from the insertion.
221 An MRI scan of the left shoulder organised by Mr Sundaram in March 2009 showed a complete full thickness chronic supraspinatus tendon tear with retraction by approximately 2.5 centimetres and evidence of atrophy within the supraspinatus muscle. Intrasubstance degeneration was shown, particularly within the infraspinatus tendon, with an associated delamination tear, although the tendon remained detached. There was mild subscapularis intrasubstance degeneration.
222 Mr Sundaram organised an x-ray of the left shoulder in May 2009. Subacromial space appeared adequate. A metallic anchor was embedded in the proximal humerus. The joint structures were normal. There was a 1.8 by .6-centimetre density projected between the humeral head and the lateral aspect clavicle, which it was noted may represent a bone fragment, but it was not clearly visible on the AP view.
223 An x-ray of the right shoulder was organised by Dr Fox in July 2009. It was reported there were degenerative changes affecting the AC joints. The glenohumeral joints showed some mild reactive change in the subarticular bone of the inferior glenoid. There were signs of a chronic rotator cuff tear with approximation of the greater tuberosity to the under anterior surface of the acromion and there was a small anterior acromial spur.
224 An ultrasound of the right shoulder performed in July 2009 showed a full thickness tear of the supraspinatus tendon with fluid and thickening of the synovium in the subacromial subdeltoid bursa. There was also fluid in the biceps tendon sheaf and some thickening of the biceps tendon, which it was reported may imply biceps tendinopathy secondary to the rotator cuff tear. The remaining components of the rotator cuff were intact.
225 Mr Sundaram organised an x-ray of the right shoulder in November 2009. It was reported the shoulder and AC joints appeared normal for age. The externally rotated view suggested the presence of subacromial calcifications. There was no fracture, suspicious local bone lesion or radio opaque foreign body seen.
226 Dr Forster organised a cervical spine x-ray in January 2012. It was concluded there was significant C6-7 degenerative change.
227 On 28 February 2012, Mr Schofield organised an x-ray of both shoulders. It was reported there was mild degeneration at the AC joints on both sides. There was bony spurring at the outer aspect of the acromion on both sides with mild narrowing of the subacromial space. No definite rotator cuff calcification was seen. There was moderate bilateral humeral head cortical irregularity noted.
228 Mr Schofield organised an MRI scan of the left shoulder on 28 February 2012.
229 It was concluded anterior acromioplasty with rotator cuff repair had been performed. There was mild cortical irregularity of the inferior surface of the anterior at acromion but acromiohumeral distance was adequate and there was mild AC joint degenerate change and subdeltoid bursitis. A complete tear was demonstrated in the anterior of 2 centimetres of the supraspinatus tendon, this had been retracted by 1.7 centimetres and was associated with mild to moderate atrophy of the muscle belly of the supraspinatus with minimal atrophy in the muscle belly of the infraspinatus. The infraspinatus tendon remained intact and the subscapularis was within normal limits. There was no normal intra or extra articular longhead of biceps seen. It had been likely avulsed from the superior glenoid and retracted outside the field of view. Mild degenerative change was demonstrated in the glenohumeral joint with subchondral marrow oedema and minimal chondral irregularity of the anteroinferior glenoid with extensive chondral loss in part replaced by marrow of the humeral head.
230 An MRI scan of the right shoulder was also organised. It was reported anterior acromioplasty had been performed with mild AC joint degenerative change. Rotator cuff tear had been repaired with surgical anchors. There was dramatic thinning of the anterior 2 centimetres of the rotator cuff tendon without focal signal abnormality. It was noted those appearances were most in keeping with chronic complete tear with retraction of the tendon fibre over 2.8 centimetres. It was noted a thin ribbon of tendon may remain. There was mild to moderate atrophy of the muscle belly of the supraspinatus. In addition, there was a near full thickness tear of the musculo-tendinous junction of the posterior supraspinatus/anterior infraspinatus, 2 centimetres posterior to the rotator cuff interval and 1.5 centimetres medial to the interval. No significant atrophy was demonstrated in the infraspinatus muscle belly. There was mild to moderate tendinosis demonstrated in the intra articular longhead of biceps. The subscapularis and glenoid were within normal limits, as was the glenohumeral head.
Vocational Evidence
231 Mr Bill Radley, psychologist, from South West Counselling, carried out a vocational assessment on 17 October 2009.
232 Mr Radley concluded, as a result of bilateral shoulder injury and PTSD, the plaintiff had no current capacity to return to her pre-injury employment or to any similar employment. Further, he thought she had no current capacity for work, no current capacity to return to any type of alternative employment and no capacity to undertake any type of occupational training.
233 Mr Radley considered the plaintiff may benefit from a referral to a multi disciplinary pain management program and a further referral to a psychologist skilled in the treatment of anxious, angry and lethargic mood and injury adjustment.
234 In his subsequent report of 6 March 2012, having been provided with numerous medical reports, Mr Radley confirmed his earlier opinion.
Claim Documentation
235 The plaintiff submitted a Claim for Compensation on 21 August 2007. She set out that she injured her left hand and that she had post-traumatic stress, anxiety and panic attacks from an injury on 9 August 2007 when she fell when a gate to the bathroom opened much faster than she anticipated. She put her left hand down to break her fall. Her fingers bent back. A child fell with her and she felt stressed. She suffered a contused left hand, anxiety and post-traumatic stress. She answered “no” to any previous condition.
236 The plaintiff set out that she was working twenty hours a week earning $20.70 an hour, with a gross weekly wages of $490.
237 By letter dated 26 September 2007, GIO Insurance advised the plaintiff that her claim for weekly payments had been accepted in relation to an injury of 9 August 2007.
238 The plaintiff lodged a claim on 20 July 2009 in which she set out she injured her right arm and shoulder due to overuse injury, due to injury sustained to her left shoulder in the course of employment. She noted the injury occurred over time since the incident.
239 By letter dated 22 December 2009, GIO advised the plaintiff that it had decided to reject her July 2009 claim for medical and like expenses as her injury did not arise out of employment. Further, GIO Insurance considered the plaintiff’s employment was not a significant contributing factor.
240 GIO Insurance advised that based on the medical information it had obtained, it was not considered the right shoulder injury was a new injury and was a result of the left shoulder injury. The plaintiff was advised, however, she would have an entitlement to medical expenses for her right shoulder condition on her previous claim, with the date of injury being 7 August 2009.
241 The plaintiff made a claim on 9 December 2010 for impairment benefits claiming bilateral torn rotator cuffs, supraspinatus tendons, longhead biceps, PTSD, anxiety, having tripped on a gate when it opened unexpectedly.
242 By letter dated 14 April 2011, GIO advised the plaintiff that her claim for impairment benefits had been accepted in relation to her left and right shoulders and psychiatric condition. This acceptance followed examinations by Mr Kierce in March 2011 and Dr Douglas in April 2011.
The Defendant’s Lay Evidence
243 Peter White, Senior Legal Manager of the first defendant, swore an affidavit on 18 January 2012.
244 Mr White referred to the plaintiff’s Claim for Compensation of 21 August 2007 which was accepted in relation to a contused left hand, anxiety and Post-traumatic Stress claimed to have arisen on the said date. The claim was accepted on the basis of certificates signed by Dr Fox setting out these injuries.
245 On 7 September 2008, the plaintiff lodged a claim in relation to Post-traumatic Stress/ psychological between 13 and 29 August 2008. Liability to pay compensation was accepted.
246 On 20 July 2009, the plaintiff lodged a claim for compensation for injury to her right arm and shoulder, described as occurring over time. Liability was rejected.
247 On 9 December 2010, the plaintiff then lodged a claim under s.98C for injury to her right and left shoulders and PTSD and Anxiety. Liability for this claim was accepted.
248 Mr White deposed that since the plaintiff’s claim in this regard was accepted, further information had become available which, had it been available at the time, he believed would have caused the claims’ agent to reject liability for the claim under s.98C.
249 Kate Williams, former team leader at the Centre, swore an affidavit on 25 January 2012 exhibiting a statement she made on 6 October 2008.
250 When the plaintiff worked at the Centre, Ms Williams did not have any issues with her work performance. She was not aware of the plaintiff undertaking any sort of computer training and was aware she was not confident in the use of computers.
251 Ms Williams was aware the plaintiff had a fall on the said date. Ms Williams completed an incident report on the said date. She set out the plaintiff suffered an injury to her left hand, namely, sprain, strain, bruise, swelling when the bathroom gate opened suddenly. First aid treatment and a doctor was required.
252 At that time, the plaintiff’s confidence went down and she doubted her own ability a little. On her return to modified duties, the plaintiff had support from other staff but she lacked confidence in the skills to work with children. Her return to work was really slow.
253 At that stage, Ms Williams thought the plaintiff did not have a particular physical injury; it was more a confidence issue. The plaintiff told her she had had trouble with her knee before the said date.
254 Ms Williams was aware the plaintiff’s hand swelled up as a result of the fall. The plaintiff’s return to work was not affected by physical issues at all but only by confidence issues with a return to full duties from December.
255 Ms Williams became aware of a physical injury only in July 2008. The issue of the shoulder came as a surprise because the plaintiff had not mentioned it before, even in general discussion.
256 There was a meeting to discuss the plaintiff’s light duties certificate and it was decided the plaintiff not be involved with direct care of children. Ms Williams saved up administrative type tasks that the plaintiff would do. As the plaintiff had almost nil computer skills, Ms Williams had to give her very paced basic work like folding things. The plaintiff also did tasks for other staff.
257 Ms Williams deposed she was not frustrated and angry with the plaintiff but on 20 August 2008, she had spoken to her and tried to hurry her along with her work. The plaintiff responded by getting very angry and upset.
258 Two days later, the plaintiff returned to work and there was then a meeting with Jodie Mayberry, attended by the plaintiff also. A suggestion was made that the plaintiff work at the Council offices. The plaintiff looked happier after that work was suggested.
259 Some weeks later, the plaintiff came into work and gave Ms Williams a Certificate of Capacity. Ms Williams then thought the plaintiff was alright.
260 Ms Jodie Mayberry, Children’s Services Coordinator with the second defendant, made a statement on 6 October 2008 which was exhibited to an affidavit sworn on 25 January 2012.
261 Ms Mayberry was aware the plaintiff was involved in the incident, after which she was very upset and concerned about the child’s wellbeing.
262 On her return to work, the plaintiff had lost control of her own emotion and feeling and was certainly not herself. The plaintiff had some sessions with a counsellor. Late in 2007, the plaintiff returned to full time work. There were no reports of her having any problems until August 2008, when Ms Williams rang Ms Mayberry.
263 Ms Mayberry could recall being told about the plaintiff having a shoulder injury and when she became aware of it, she was surprised, because she knew the plaintiff had issues with her knees and Ms Mayberry did not know anything about her shoulder.
264 A mediation relating to the plaintiff’s argument with Ms Williams was chaired by Ms Mayberry. At that mediation, the plaintiff was offered Council work and she seemed to perk up at that offer but she highlighted that she was not computer literate.
265 The plaintiff was given that computer work which she kept highlighting was a big task. The plaintiff said she was having a go. Ms Mayberry however, found that the tasks she asked the plaintiff to complete were not done correctly. The plaintiff phoned and said making her do all the computer work had upset her and she could not return to work.
266 The plaintiff came into work some time later with an incident report and a capacity form. Ms Mayberry remembered talking to the plaintiff about her shoulder and that was when the plaintiff told her she had x-rays previously. The plaintiff said that she was having her shoulder treated for arthritis and having cortisone.
267 The plaintiff telephoned Ms Mayberry when she received the incident report and said she was not happy how it had been written. Ms Mayberry explained to her she had looked at it in two parts, one being the original shoulder incident and the other about the computer issues. She tried to explain to the plaintiff that the inappropriate behaviour she referred to was about the issue in August 2007. The first time the plaintiff said she felt the computer work had aggravated her shoulder was during that discussion.
268 The plaintiff made a statement on 12 September 2007, five weeks after the incident.
269 The plaintiff described the incident. She stated that Kate Lyons, a co-worker, witnessed it and asked if she was okay, which the plaintiff thought she was. The plaintiff was offered an icepack, and the fingers on her left hand were sore. She reported the incident and felt stressed and upset.
270 The plaintiff had been off work since. Her hand was fine. She was still suffering from panic attacks and stress as a result of the incident, having dropped someone else’s child.
271 The plaintiff stated that her doctor felt she should go back to work on modified duties shortly and she was going to try.
Certificates
272 A number of Certificates of Capacity were provided by Dr Fox. On the initial Certificate following an examination on 9 August 2007, he described the plaintiff’s injury as sore hand and anxious, contused left hand, Post-traumatic Stress. The plaintiff was certified unfit for any work until 19 August 2007. Following an examination on 20 August 2007, Dr Fox described the plaintiff’s condition as anxiety and panic attacks and Post-traumatic Stress.
273 In a handwritten Certificate following examination on 13 September 2007, Dr Fox certified the plaintiff unfit for work from 17 September to 1 October 2007 due to Post-traumatic Stress.
274 Following an examination on 1 October 2007, Dr Fox described the plaintiff’s condition as panic attack and PTSD, and certified her fit for modified duties.
275 On 15 October 2007, Dr Fox described the plaintiff’s condition as panic attack and PTSD, and certified her fit for restricted duties between 15 October and 15 November 2007. On 5 November 2007, Dr Fox provided a similar Certificate.
276 Following examination on 26 November 2007 describing similar injuries, Dr Fox certified that he would expect the plaintiff to be fit for normal duties on 3 December 2007.
277 Following examination on 28 July 2008, Dr Fox provided a certificate which set out “Injury August 2007. Carrying child in right arm. Persisting pain in the rotator cuff. Now having steroid injections. No stretching or carrying children in left arm from 28 July until 11 August 2008”.
Medico-Legal Examinations
278 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in July 2010 and provided a supplementary report in November 2011.
279 The plaintiff told Mr Dooley that she landed on her outstretched left arm in the incident. Gradually she returned to work but as she did so, she noted increasing pain in both shoulders. She attended her local doctor and was diagnosed with rotator cuff tendonitis. She felt she was harassed at work.
280 The plaintiff told Mr Dooley that surgery on both shoulders had provided her with definite improvement. She noted intermittent shoulder pain and some stiffness.
281 On examination, there was some restriction of shoulder movement.
282 Mr Dooley thought the plaintiff suffered from naturally occurring degenerative rotator cuff disease. He believed that it was probable this was aggravated in the incident. He noted as part of the natural evolution of degenerative rotator cuff disease, tearing of the supraspinatus tendon occurs. Mr Dooley believed the tears, noted on radiological investigations, represented part of the degenerative change and were not traumatic injuries sustained in the incident.
283 Mr Dooley thought that the plaintiff presented as a sensible, genuine historian who had not exaggerated her symptoms in any way. He noted it was unusual to see patients make such an effective recovery from decompression and repair surgery when it is carried out in a compensable fashion. He noted the plaintiff had been through a torrid time at work with harassment, noting her view that she had to resign from work to preserve her rapidly deteriorating mental health.
284 Referring to the death of her child and various other personal problems, Mr Dooley thought the plaintiff had shown in her life that she had enormous resilience and he very much doubted she had ever thrown the towel in her life.
285 Mr Dooley concluded that the work-related injury had involved a significant aggravation of underlying degenerative rotator cuff disease. He thought the aggravation and the subsequent need for surgery had involved some permanency.
286 In his view, at that time, the plaintiff would be unfit to carry out heavy physical work or work that involved regular lifting and regular activity at and above shoulder level. He thought that the plaintiff would continue to note intermittent shoulder girdle pain and would not regain a full range of shoulder motion.
287 As part of the natural evolution of her underlying degenerative rotator cuff disease, Mr Dooley thought further degenerative tears of the cuff may occur and the plaintiff may suffer from further impingement.
288 Mr Dooley was provided with further information from Dr Fox’s clinical notes.
289 Mr Dooley mentioned that the first reference in those notes to left shoulder pain was on 15 July 2008, whereas the plaintiff had reported to him that she was aware of shoulder pain within two months after the episode.
290 Mr Dooley also noted that in April 2008, the plaintiff presented to Dr Fox with arthralgia. Dr Fox noted swollen stiff joints, arthralgia in the shoulders and a positive rheumatoid factor, and prescribed Prednisolone.
291 Mr Dooley noted is was clear from the plaintiff’s history and how she presented to him and also from attached records that following the incident she had a major psychological reaction.
292 Mr Dooley believed that on balance, if it was reasonable to accept that in the incident the plaintiff aggravated underlying degenerative rotator cuff disease of the left shoulder, one would have expected her to have been complaining of specific left shoulder symptoms within a relatively short period of time after the incident. He noted that one needed to take account that following the incident, the plaintiff had a major psychological reaction and that may well have affected her judgment and memory.
293 Accepting this however, Mr Dooley would have expected the plaintiff to have presented to a doctor with specific symptoms prior to a period of almost a year following the incident. Allowing that the presentation with arthralgia in April 2008 could have related to degenerative rotator cuff disease, again he noted that period of time was about eight months after the incident, a much longer period of time than one would have expected if there was a causal relationship between the fall and the development of symptomatic degenerative rotator cuff disease.
294 In taking the plaintiff’s history it was Mr Dooley’s interpretation she was given cortisone injections following a diagnosis of rotator cuff tendonitis. In reality she was given cortisone because of a diagnosis of inflammatory systemic arthritis. Therefore, if the Court accepted the plaintiff did not report an injury to the left shoulder until almost a year after the incident, it was very difficult in his view to connect that to rotator cuff tendonitis.
Dr Fox’s Notes
295 Tendonitis was noted by Dr Fox on 24 October 2003 and Celebrex was prescribed.
296 On 13 and 20 August 2007, it was noted the plaintiff attended for WorkCover and received a certificate.
297 On 3 September 2007, the plaintiff attended for depression, reactive, and Avanza was prescribed. On 1 October 2007, the reason for contact was panic attacks, and a further certificate was provided.
298 On 15 October 2007, there was a similar complaint, with “still panic going to work and when children crowded her”.
299 On 22 October 2007, it was noted panic again, and also a referral to Ms Yee.
300 On 5 November 2007, the reason for attendance was panic attacks. It was noted the plaintiff was coping with family pressures, with her niece having stabbed her abusive ex husband last week.
301 There was an unrelated attendance on 13 November 2007. On 19 November 2007, the reason for attendance was panic attacks and on 26 November 2007 and 17 December 2007, PTSD was noted.
302 There was then a gap in attendances until 22 April 2008 when it was noted the reason for contact was arthralgia and Mobic was prescribed and pathology requested.
303 On 29 April 2008, pathology was requested in relation to a rheumatoid factor. It was noted there was persisting arthralgia in shoulders, positive rheumatoid factor and Prednisolone was prescribed.
304 There was an attendance on 7 May 2008 for arthralgia and a knee x-ray was organised. The knee was again mentioned on 12 May 2008.
305 On 15 July 2008, the reason for contact was rotator cuff tendonitis and there was an injection of Depo Nisolone.
306 On 28 July 2008, it was noted there was a further Depo Nisolone injection left shoulder side, bicipital groove and the reason for attendance was rotator cuff tendonitis.
307 On 7 August 2008, rotator cuff syndrome was noted and on 21 August 2008, rotator cuff tendonitis was described.
308 Panic attacks were mentioned on 1 September 2008. On 11 September 2008, there was a note of rotator cuff tendonitis, Depo Nisolone injection, left side bicipital groove radiated tender over the back, neck and down the arm.
309 On 25 September, 9 and 23 October 2008, the reason for attendance was PTSD.
310 The right shoulder was first mentioned on 13 July 2009 – “right side shoulder hurting? overuse> Sundaram?”
311 On 23 July 2009, right side shoulder pain and stiffness were noted to be worse since using right arm more after surgery on left was noted. A right shoulder x-ray was requested.
Overview
312 The plaintiff’s application is brought in relation to an injury to both shoulders arising from the incident and also injury to the right shoulder resulting from overuse of the right upper limb following the injury to the left shoulder in the incident.
313 Firstly, I must be satisfied the plaintiff suffered a compensable injury in the incident on the said date.
314 As the Court of Appeal stated in Barwon Spinners (supra) at paragraph 139:
“Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999.”
315 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a)What injury is relied upon;
(b)Further, that that injury is referable to employment on or after 20 October 1999.
316 The defendants denied the plaintiff suffered a compensable injury to her shoulders on the said date. Counsel for the defendants ultimately submitted that the bilateral supraspinatus tears, which were later operated upon, were a consequence of the natural progression of degenerative disease which predated the incident, and not a consequence of any trauma in the incident.
317 When considering causation, in Ansett v Taylor [2006] VSCA 171, Ashley JA took into account the fact the defendant accepted liability for the payments of weekly payments and medical expenses. His Honour, whilst stating this acceptance of liability may not be binding, thought such admission should ordinarily be regarded as very significant … “albeit not conclusive because a defendant in a particular case may be able to satisfactorily explain its conduct”.
318 These principles provide limited assistance in considering the existence of a compensable injury in the present case as liability was only partly accepted in relation to the plaintiff’s shoulder injuries.
319 Her claim for weekly payments was accepted on the basis of her reported injury of a contused left hand and psychiatric problems certified by Dr Fox on the said date.
320 A claim specifically in relation to the right shoulder submitted by the plaintiff in July 2009 was denied on the basis that there was no new injury and that any right shoulder problems should be attributed to the original claim (albeit no left shoulder claim had been accepted). However, GIO’s denial letter referred to the left shoulder being injured in the original incident.
321 Further, in relation to the application pursuant to s.98C of the Act, which was accepted in relation to both shoulders and also psychiatric impairment, Senior Legal Manager, Mr White, deposed that had further information been available at the time that that claim was considered, it would in fact have been denied.
322 Counsel for the plaintiff relied upon this acceptance of the s.98C claim as an admission of liability and also pointed out that there had been a settlement of the plaintiff’s weekly payments claim in 2010 with an acceptance of liability for the plaintiff’s shoulder condition at a time when Dr Fox’s notes were available.
323 In my view, the plaintiff faces a number of difficulties in establishing that the incident has materially contributed to the supraspinatus tendon tears, which were later revealed on investigations in 2009.
Pre-Incident Condition
324 Whilst the plaintiff made no mention at all of problems with her shoulders prior to the incident in her affidavits or her histories to various doctors, it is clear that from 1999, she had continuing chiropractic treatment for both shoulders involving soft tissue massage and also trigger-point treatment.
325 Although he reported in October 2008 that the plaintiff had not been treated for shoulder problems before the incident, Dr Fox first noted a shoulder problem on 24 October 2003, diagnosing tendonitis in relation to which he prescribed Celebrex.
326 In cross examination, chiropractor, Dr Forster, agreed the plaintiff had received extensive shoulder treatment prior to the incident, although there was no mention of this treatment in his reports.
327 Whilst he described the treatment given to the shoulders as maintenance, Dr Forster explained, such treatment was to keep the plaintiff going in relation to her neck, back, knee and also her shoulders.
328 I do not accept the submission by the plaintiff’s counsel that the treatment to the plaintiff’s shoulders should simply be looked at as part of a pattern of general treatment to her body and that there was not a shoulder problem which required treatment before the incident.
329 Pre-incident, there were seventeen attendances for shoulder treatment in 2000, thirteen in 2001, six in 2002, two in 2003, four in 2004, two in 2005 and 2006 and three in 2007, including 20 August 2007. The next mention of the shoulder in the clinic’s notes was in the context of a diagnosis of rheumatoid arthritis on 26 May 2008.
330 As recently as one month before the said date, the plaintiff had treatment for bilateral shoulder pain at the clinic.
331 I accept that whilst the plaintiff required ongoing chiropractic treatment for her shoulders before the incident, her lifestyle was otherwise unaffected by her shoulder condition. She was able to work without difficulty and there was no interference with her other daily activities nor any requirement for medication.
332 In these circumstances, having undertaken the analysis required in aggravation cases as set out in Petkovski v Galletti [1994] 1 VR 436 recently approved and followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60, I am not satisfied the plaintiff’s degenerative shoulder condition resulted in any significant interference with her activities before the incident.
333 In my view, the need for chiropractic treatment for the shoulders as well as the spine was not surprising given the plaintiff’s active involvement in farm work, in particular milking and also her work duties lifting children.
334 However, that background of treatment, the late report of shoulder pain and the absence of any treatment for the left shoulder in the months following the incident are relevant to the issue of compensable injury and in my view are more suggestive of the supraspinatus tears occurring at a later stage than in the incident and not consistent with the specific incident - a view held by Mr Dooley having been provided with full details of the plaintiff’s shoulder treatment and complaints following the incident, albeit not being made aware of her pre incident chiropractic treatment for her shoulders.
Post- Incident Report of Shoulder Pain
The Plaintiff’s Account
335 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… 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.”
336 Whilst I found the plaintiff to be a generally credible witness, and there was no surveillance or other evidence that she is overstating her level of pain and disability, I thought there was ultimately a deal of reconstruction in her viva voce evidence as to the date of the onset of her shoulder pain.
337 The plaintiff’s affidavit evidence as to her left shoulder described two time frames as to the onset of shoulder pain – “with the passage of time” and also in early 2008 on her return to work. Consistent with this evidence was the plaintiff’s lack of reference to a shoulder problem in her September 2007 statement which painted a picture of an improving situation, no reference to a shoulder injury in her Claim Form signed on 21 August 2007 and the instruction letter to Dr Fox from the plaintiff’s solicitors dated 7 April 2009 which the plaintiff agreed was accurate setting out the date of onset as early 2008.
338 There was then somewhat of a shift in the plaintiff’s viva voce evidence, with an apparent attempt to make the date of onset earlier. The plaintiff then said it was a short while after – a couple of weeks after the incident – that her shoulders became sore. This evidence is somewhat difficult to reconcile with the plaintiff’s explanation that her shoulder symptoms came on when she returned to work lifting children – after 3 December 2007 – and that she did not experience problems when resting at home in the months after the incident.
339 The plaintiff deposed to the onset of the right shoulder pain in July 2009 but went further in her viva voce evidence adding that as well as injury from overuse as she also described in the Claim Form at that time, she had also hurt her right shoulder in the incident itself – something she had not told any doctor or Dr Forster.
340 Whilst the plaintiff said her overriding focus in the earlier months after the incident was her psychiatric condition, I am not satisfied, at that time, she was experiencing any shoulder pain of any significance. She did however complain of left hand pain. In my view, the lack of complaint until 2008 was consistent with the absence of shoulder problems.
341 As Mr Dooley explained and Dr Forster confirmed, if there was a tear of the supraspinatus resulting from the incident, the likelihood was that the plaintiff would have experienced pain much earlier than April 2008.
Other Evidence
342 In addition to the plaintiff’s own account of pain, the Court must take into account other objective matters of fact and what the evidence showed about the effects of the pain upon the plaintiff’s capabilities. Relevant factors in this regard included what the plaintiff did about the pain in terms of medication, rest and seeking treatment and what the objective evidence shows about the disabling effect of the pain – per Maxwell P in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [10].
343 The first report of any shoulder pain to the chiropractor after the incident was on 20 August 2007, when left trapezius was simply noted. No treatment was noted. Significantly, there was no mention of the supraspinatus tendons, the injury subject of this application.
344 Further, there was no significant change in the pattern of treatment for the plaintiff’s shoulders after the incident. If anything, there was less treatment for her shoulders in the months thereafter. In November and December 2007 and April 2008, when the plaintiff attended the clinic for treatment, no mention was made of a shoulder complaint or any treatment in relation thereto.
345 The first chiropractic treatment to the left shoulder after the incident was in July 2008. The next attendance at the clinic was in December 2011.
346 Whilst Dr Forster considered the mechanism of the incident, namely falling on an outstretched left hand, could result in a supraspinatus tear, he agreed with Mr Dooley that one would have expected the plaintiff to have been complaining of specific left shoulder symptoms within a relatively short period after the incident.
347 There was no mention of any shoulder injury relating to the incident in the chiropractic clinic’s notes until January 2012 following a request for a report by the plaintiff’s solicitors. On that date, Dr Forster simply recorded that after the fall, the plaintiff’s “left shoulder sore in September and further aggravated lifting children”.
348 Following the incident, the initial report of injury to Dr Fox was of a sore left hand and psychiatric problems. Certificates of Capacity thereafter dealt with the plaintiff’s Anxiety and PTSD relating to the incident and the plaintiff was referred to Ms Yee, psychologist, in relation thereto.
349 Having complained of swollen stiff joints on 22 April 2008 and investigations being arranged for rheumatoid arthritis, the first specific reference to the plaintiff’s shoulders following the incident was in late April 2008 when Dr Fox noted “persisting arthralgia in shoulders positive rheumatoid factor”. Blood tests were then arranged.
350 Subsequent attendances with Dr Fox on 7 and 12 May 2008 related to the plaintiff’s knee.
351 The first specific reference to a discrete shoulder problem was in July 2008 when Dr Fox diagnosed rotator cuff tendonitis, following which various investigations were arranged and the plaintiff was referred to Mr Sundaram, orthopaedic surgeon.
352 Dr Fox certified the plaintiff fit for normal duties on 3 December 2007. Until July 2008, the plaintiff did not mention to him any problem with her shoulders doing her work. That was nearly nine months after her return to normal duties and almost a year following the incident.
353 Whilst Dr Fox’s 28 July 2008 certificate, the first mentioning a shoulder complaint, attributed this problem to the incident, the Past Medical History summary in his notes listed shoulder problems first on 28 July 2008.
354 Further, Dr Fox’s reports suggested an earlier complaint of shoulder pain than his notes recorded. Without any contemporaneous note to this effect, he simply reported that over subsequent months following the incident, the plaintiff noticed the development of stiffness in her left shoulder consistent with a strain of the rotator cuff in the fall.
355 The lack of complaint of shoulder problems to treating psychologist Ms Yee is also significant. During the first period of counselling from September to November 2007, the plaintiff mentioned her left hand injury but not any problem with her shoulder following the incident. Ms Yee only became aware of a shoulder problem on the plaintiff’s return to counselling in October 2008 after she had ceased work.
Lay Evidence
356 Lay evidence relied upon by the defendants also indicated that the plaintiff did not report any left shoulder problem at work until July 2008, with the focus of her complaints until that time being her stress and nervousness dealing with children.
357 Co-workers, Ms Williams and Ms Mayberry, were aware that the plaintiff had injured her left hand in the incident and that she had had problems with her knee before that time, but it was not until the plaintiff provided a light duties certificate in July 2008 that they became aware of her shoulder condition and any suggestion it related to the incident. Thereafter, for the first time, the plaintiff’s duties were modified because of her shoulder condition.
Medical Opinion Relating to Causation
358 Whilst all doctors initially accepted the supraspinatus tears resulted from the incident, I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at paragraph [14] of his judgment, a plaintiff’s credibility is relevant not only to the question whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
359 Accordingly, in this case what appear on their face to be medico legal opinions supportive of the plaintiff’s application must be looked at in the light of my views as to the plaintiff’s credit.
360 The plaintiff gave examining doctors the general impression that the onset of left shoulder pain was much earlier than 2008 and that she had time off work and treatment for her shoulder immediately after the incident.
361 The only doctor with a more accurate picture is Mr Dooley, who was later provided with Dr Fox’s notes, although not being aware of the chiropractic treatment before the incident.
362 Mr Dooley’s early support for there having been an aggravation in the incident waned as he was given access to Dr Fox’s clinical notes with the first reference to left shoulder pain on 15 July 2008.
363 Mr Dooley’s original view was based on the plaintiff’s history that she was aware of shoulder pain within around two months of the incident and that she had been given cortisone injections for this condition, not arthritis as Dr Fox’s notes indicated in April and May 2008.
364 Given the full history, Mr Dooley therefore thought it was very difficult to connect the incident to rotator cuff tendonitis if it was accepted the plaintiff did not report an injury to the left shoulder until April or July 2008. In his view, specific left shoulder symptoms would have been expected to have come on within a relatively short period of time after the incident if there was a supraspinatus tear, even with the plaintiff experiencing a psychological reaction at that time.
365 The plaintiff told Mr Kierce she had never had any trouble with her shoulders prior to 2007. She also told him of the incident where she opened a gate landing on her outstretched left arm, which caused bruising of her left hand and soreness in her left shoulder. She told him she saw her general practitioner, who put her off work until October 2007, prescribing non steroidal anti inflammatory medication.
366 Immediate onset of shoulder pain and certification as unfit to work in relation thereto is clearly an incorrect history. Professor Marshall was given a similar history.
367 Mr Schofield focussed on the absence of any shoulder problems before the incident in finding the supraspinatus tears occurred at that time. Further, he was told by the plaintiff that she fell on her left side injuring her left shoulder. The plaintiff told him she was unable to work for three months thereafter during which time she had treatment for her shoulder.
368 Taking into account all the evidence, I am not satisfied that the plaintiff suffered a compensable injury to her shoulders in the incident or that she suffered an injury to her right shoulder due to overuse of her right arm following the incident.
369 Accordingly, the plaintiff’s application is dismissed.
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