Dunbar v Victorian WorkCover Authority
[2019] VCC 1860
•5 December 2019
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05113
| JOCELYN DUNBAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 25 and 26 September 2019 | |
DATE OF JUDGMENT: | 5 December 2019 | |
CASE MAY BE CITED AS: | Dunbar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1860 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – pain and suffering only – disentangling
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited: Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to bring proceedings for pain and suffering consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Ms J Frederico | Arnold Thomas & Becker |
| For the Defendant | Mr P B Jens QC with Mr A Saunders | Minter Ellison |
HER HONOUR:
1 In March 2007, the plaintiff commenced employment with the Central Gippsland Health Service as a laundry hand. She was employed on a part-time basis, working twenty-five hours per week. The plaintiff’s work involved repetitively feeding sheets into ironing machines and then pulling them out, folding them, together with moving heavy cleaning machines to clean the various sheets and surgical gowns.
2 The plaintiff first noticed pain in both of her shoulders in or around 2011. There was no particular incident. The plaintiff’s evidence was that there was a slow worsening of pain in her shoulders, moreso on the left shoulder than the right.
3 The plaintiff was on maternity leave in 2013 and returned to work in late December 2013. The plaintiff’s evidence was that she noticed changes in the laundry when she returned to work. Upon her return, the plaintiff worked in the theatre pre-pack area. She said that not long after she returned to work, she noticed that the wrapping of the pre-pack was causing pain in her left shoulder. In September 2014, the plaintiff requested that she cease working in the pre-pack area. This request was denied, and the plaintiff took personal leave to rest her left shoulder for one month.
4 The plaintiff’s shoulder pain increased after returning to work. On 13 October 2014, she attended Dr Ferdoushy Begum, general practitioner, at the Sale Medical Centre, complaining of left shoulder pain, and was referred for physiotherapy.
5 On 11 December 2014, the plaintiff reported worsening bilateral thoracolumbar pain since November 2014.
6 On 15 December 2014, the plaintiff had an ultrasound, which reported two tears of the supraspinatus, both a partial intrasubstance tear and a full thickness, but not completed, tear, with associated increased fluid within the subacromial bursa. The plaintiff lodged a WorkCover claim, which was accepted.
7 In February 2015, the plaintiff was referred by her solicitors to Associate Professor Eugene Ek, orthopaedic surgeon, in relation to her left shoulder pain. Professor Ek referred the plaintiff for an MRI scan. The MRI scan did not demonstrate any evidence of a rotator cuff tear and was reported as essentially normal.[1] Professor Ek reported that, upon his interpretation, he noted some degree of AC joint inflammation and impingement from a down sloping acromion which may contribute to dynamic shoulder impingement.[2] Professor Ek recommended a subacromial cortisone injection which the plaintiff was not keen to try due to a phobia of needles. He discussed surgical options with the plaintiff. Professor Ek diagnosed likely subacromial bursitis and impingement, and possible long head of biceps tendinitis. He said these conditions are likely to be aggravated by repetitive shoulder movements, especially overhead activity.
[1]PCB 22
[2]PCB 22
8 On 17 June 2015, the plaintiff had a cortisone injection at the Sale Medical Centre. The plaintiff said the cortisone injection provided temporary relief.
9 In August 2015, the plaintiff resigned from her role.
10 In a report dated 8 September 2015, Dr Begum confirmed, with imaging, the plaintiff’s diagnosis as left-sided supraspinatus tear, and partial intrasubstance tear. Dr Begum noted that a more recent MRI scan did not show any tears.
11 In September 2015, the plaintiff had a further ultrasound which showed a 3‑millimetre partial thickness tear of the supraspinatus with mild subacromial bursitis and bursal impingement.
12 In September 2015, Robert Hughes, physiotherapist, commenced treating the plaintiff.
The application
13 This is a serious injury application. Leave is sought for pain and suffering only. The body function relied upon is the left shoulder.
14 The plaintiff relied upon her affidavits sworn 27 June 2018 and 23 September 2019. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or her evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other materials which were tendered in evidence. I have read all of the tendered material.
The issues
15 Counsel for the defendant informed the Court there were issues of disentanglement in relation to the multiple physical injuries, including the left shoulder, right shoulder, cervical spine and thoracolumbar spine, as well as the plaintiff’s psychological injury. Counsel for the defendant said that the plaintiff’s left shoulder injury does not satisfy the test for serious injury and she has not demonstrated that the consequences for her in relation to her injury are serious when consideration is given to all of the evidence.
Background
16 The plaintiff was born in March 1969, in the Philippines. She finished four years of high school, following which she worked in a factory which manufactured noodles for six months. She then worked in a laundry for year. From 1991 to 1996, the plaintiff worked as a domestic services assistant in Hong Kong. From 1998 to 2001, the plaintiff lived intermittently in Japan for six months, working as a performing artist doing singing and dancing shows. The plaintiff returned to the Philippines and worked in a finance organisation, completing office work, including interviewing clients. The plaintiff said that the interviewing work was completed in her mother tongue of Tagalog and English.
17 The plaintiff has three children: a son born in 1990 and daughters born in 1997 and 2013, respectively.
18 The plaintiff came to Australia in May 2006 and lived in Sale with her then husband.
19 In March 2007, the plaintiff started working part time at a restaurant. In March 2007, she started working on a permanent part-time basis at the laundry at Central Gippsland Health Services as a laundry hand.
20 In about May 2011, she experienced pain in both shoulders, moreso on the left than the right.
21 The plaintiff’s marriage ended and in 2012 and she divorced. Her third child was born in February 2013.
22 In 2014, she took a month’s personal leave to rest her left shoulder.
23 The plaintiff returned to work but the pain increased after performing repetitive duties and she was referred to Mr Ek, orthopaedic surgeon, for treatment.
24 The plaintiff ceased work in August 2015, because her work duties aggravated the pain in her left shoulder. The plaintiff’s evidence was that had she not been injured, she would have continued to work with her employer.
25 While working at the laundry, the plaintiff started, and completed, a part-time Diploma of Business and Business Administration. It was her hope to move to lighter clerical work instead of repetitive physical work. The plaintiff‘s evidence is that she is presently enrolled with “Sureway”, a disability employment agency in Sale. The plaintiff’s evidence was that she has been applying for clerical jobs; however, she has not obtained employment of a clerical nature.
26 I accept that the plaintiff’s work experience was physical work.
Credit
27 Initially counsel for the defendant indicated that the plaintiff’s credit would be in issue; however, that was not pursued. In court I formed the impression that the plaintiff was guarded and uncomfortable with the Court process. She answered questions to the best of her ability. She did not elaborate on her answers unless asked to. I accept that was due to a lack of experience in the Court process. Overall, I found the plaintiff to be a witness of truth.
The current medical evidence
28 The current medical evidence was expressed by Mr Ash Chehata, Mr Rob Nicholls, Mr Michael Dooley, Dr Peter Boys and Mr Iain Nicholson.
Mr Ash Chehata
29 Mr Chehata, orthopaedic upper limb surgeon, examined the plaintiff on three occasions at the request of the plaintiff’s solicitor in May 2016, July 2017 and May 2019. Initially the plaintiff reported quite severe left shoulder pain, for which she had complained of since 2011, and which was managed with physiotherapy, chiropractic treatment and acupuncture. The plaintiff reported minor improvement and noticed pain in her thoracic and upper lumbar spine. She took time off over the Christmas period, returning to work in January 2015. Her left shoulder pain flared up and she was unable to continue work. In March 2015, her right shoulder became painful. On 14 April 2015, an MRI scan of the left shoulder showed no rotator cuff tearing and minimal subacromial bursitis. On 17 June 2015, she underwent a cortisone injection which provided a few days of relief. Due to the ongoing shoulder pain in both the left and right shoulders, the plaintiff underwent an ultrasound on 18 June 2015 which confirmed bursitis and impingement.
30 In his first report of May 2016, Mr Chehata diagnosed bilateral impingement and tendinosis, with mild subacromial bursitis of both shoulders, which was related to repetitive activities at work. He accepted that manual work was not suitable, and she had no capacity for employment.
31 In his report dated 31 July 2017, Mr Chehata said the right shoulder bursitis and impingement has clinically improved and resolved. He said the plaintiff has a painful arc in her left shoulder. Mr Chehata noted that the plaintiff’s ultrasound of December 2014 diagnosed a full-thickness rotator cuff tear, and an MRI scan in April 2015 confirmed no rotator cuff tear. He said that due to this discrepancy, a further ultrasound in September 2015 diagnosed a 3-millimetre partial thickness tear of the supraspinatus with mild subacromial bursitis and bursal impingement.
32 In relation to the left shoulder, Mr Chehata said the small partial articular surface tear of the left shoulder prevents the plaintiff from performing pre-injury duties which required repetitive pulling, folding, feeding and wrapping sheets, which was often at a fast pace. He did not foresee that she will be able to perform these repetitive duties due to the recalcitrant bursitis and impingement. He noted that the plaintiff requires intermittent Panadol Osteo for pain and has had one cortisone injection, which provided temporary relief.
33 Mr Chehata said that manual labouring jobs are not ideal for the plaintiff. He said that the plaintiff is employable, and part-time work would be ideal. He said that an administrative role will suit the plaintiff’s shoulder pathology with no overhead lifting or any manual handling.
34 Mr Chehata said that the recalcitrant bursitis and small partial articular surface tear prevents the plaintiff from pursuing any sport or outside activity, she is unable to run or jump and her ability to perform household chores is affected.
35 In his most recent report dated 13 May 2019, Mr Chehata noted that the plaintiff takes Panadol and has had no further investigations or MRI scans. The plaintiff reported suffering from ongoing bilateral shoulder pain, with any repetition quite painful, and the majority of her left shoulder to be quite irritable. Further, on clinical examination of the shoulders, the internal rotation of the left shoulder was 20 degrees less than the right shoulder. He said the pain radiates into the cervical spine, her upper thoracic region and lower lumbar spine, with intermittent headaches. He said the plaintiff has attempted physiotherapy, acupuncture and massage, as well as attended multiple counselling sessions, which she reported provided temporary relief. She is regularly interrupted by shoulder and back pain during the night. The plaintiff reported difficulties with performing physical activities of daily living, as well as household chores, being unable to vacuum and mop.
36 In relation to the left shoulder, Mr Chehata said the plaintiff has suffered a likely partial thickness rotator cuff tear, bursitis and impingement during the course of her employment. He said that operative intervention is not required. He accepted that the meditation and counselling sessions were important social structures. He commented that the plaintiff wished to perform office work or light duties. He was not sure that this was a realistic expectation given her neck, back and bilateral shoulder pain.
Mr Rob Nicholls
37 In February 2019, Mr Nicholls, physiotherapist, said that the plaintiff presented with a history of head, neck and bilateral shoulder pain. He found that the plaintiff had a decreased range of motion in the cervical spine, with increased cervico-thoracic vertebral joint stiffness and pain, as well as increased muscle tension in the cervical region and shoulders bilaterally. He said a home exercise program consisting of cervical and bilateral shoulder muscle strengthening and active range of motion exercises was provided.
Dr Iain Nicolson
38 In May 2017, Dr Nicolson, general practitioner, confirmed that the plaintiff is not certified to be unable to work and there is no current certificate of capacity. He was of the view that her current management is appropriate, and she does not have any restrictions. He said her injury has stabilised and in the future, she will likely have normal age-related changes.
39 Dr Nicolson said that the plaintiff’s employment is a possible cause of her left shoulder injury. He said the plaintiff does not have a diagnosed right shoulder, thoracic spine or lumbar spinal injury as a result of her employment.
Mr Michael Dooley
40 In September 2019, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant. The plaintiff reported in 2011 becoming aware of pain in her left shoulder. She was able to manage and continue working with the pain. Around September 2014, the pain became worse. She consulted her doctor and had physiotherapy. She underwent an ultrasound and was told she had an injury with a torn tendon. She continued with physiotherapy, massage and acupuncture. She noted pain along the left side of her neck. She was referred to an orthopaedic surgeon, who recommended surgery.
41 Currently, the plaintiff reported ongoing left shoulder girdle pain, using hot and cold packs, a vibrating massage device on the left side of her neck and shoulder, sitting in a jacuzzi using warm water jets, attending water exercises twice a week and taking Panadol Osteo for pain. The plaintiff said she took Celebrex and found this affected her memory. Mr Dooley said the left shoulder injury was work related. The plaintiff should not return to pre-injury employment. She was suited to office-based employment.
42 Mr Dooley examined the plaintiff’s left shoulder and noted mild tenderness of the shoulder girdles with no wasting of the musculature. He said that there is pain in the left shoulder with abduction and extension and mild tenderness along the left side of the neck. She reported undertaking a meditation and mindfulness course which has been helpful. The plaintiff reported thoracolumbar spine pain and impingement of her right shoulder, which she related to her employment.
43 Mr Dooley did not have any radiological investigations or formal radiology reports available for review. He reviewed Mr Chehata’s report of 31 July 2017 which referred to an ultrasound of the left shoulder in December 2014, reporting a tear of the supraspinatus tendon and an MRI scan of April 2015 which showed no tear of the tendon.
44 Mr Dooley said that the plaintiff has mild, naturally occurring and age-related degenerative rotator cuff disease of the left shoulder. He was of the view that throughout the course of her employment as a laundry attendant in 2011, she sustained a soft tissue injury to her left shoulder which involved some aggravation of her underlying degenerative rotator cuff disease. He said the plaintiff has maintained a full range of motion in both her shoulders.
45 Mr Dooley said that accepting the soft tissue injury, he was of the view that the constancy and intensity of the plaintiff’s ongoing pain is greater than one would expect to see for her organic condition. He believed the plaintiff has had a psychological reaction to her situation and that this affects her ongoing symptoms. From an orthopaedic perspective, he did not believe that the plaintiff requires regular ongoing formal conservative treatment and there is no indication to consider operative intervention. Overall, he considered the plaintiff’s current treatment to be appropriate. He said the plaintiff will continue to note some intermittent left shoulder girdle pain and he did not expect her orthopaedic condition to deteriorate over and above the natural evolution of any underlying degenerative rotator cuff disease.
Mr Peter Boys
46 Mr Boys, orthopaedic surgeon, provided three reports dated 26 July 2015, 7 December 2015 and 23 February 2017.
47 In February 2017, the plaintiff reported symptoms in the left shoulder and mid lumbar region. In respect to the latter, Mr Boys said the complaints were postural in nature, requiring positional change for relief. He said the shoulder and spinal examination were normal. In his opinion, any work-related soft tissue strain in the shoulder had resolved. He could not identify any diagnosable condition referable to the thoracolumbar spine which he said was constitutional and not related to past employment. He concluded that there was no physical condition which could reasonably be related to her past employment. She could return to work performing pre-injury hours and duties.
48 Mr Boys was the only medical witness to express the view that the plaintiff could return to pre-injury hours and duties at work. Further, he was not a shoulder surgeon and has not examined the plaintiff since February 2017 and was not aware of an ultrasound of September 2015 which diagnosed a 3-millimetre partial thickness tear of the supraspinatus with mild subacromial bursitis and bursal impingement. For these reasons, I place little weight on Mr Boys’ opinion.
Surveillance and Facebook posts
49 The Court was shown surveillance of the plaintiff. The surveillance showed the plaintiff cleaning at a house which she identified as being where her son lived, attending a lunch with friends and collecting hard rubbish.
50 The plaintiff’s evidence was that she was cleaning inside her son’s house as he was bringing his partner from overseas to live in Australia and she was making the house presentable for her new daughter-in-law. She said she was at the property for approximately two hours. The plaintiff’s evidence was that she was not cleaning for two hours. During that time, she had lunch, and she and her daughter were playing with the kitten.
51 I accept the plaintiff’s evidence is that she attended her son’s house to clean on one occasion. The surveillance showed the plaintiff cleaning windows. I observed that the window cleaning did not involve the plaintiff using her left arm. Further, she was shown moving rubbish bins. Again, the plaintiff performed this task using her right hand. She was also observed cutting a plant. Again, using her right hand.
52 The plaintiff was shown looking through hard rubbish left in the street by residents. She removed some pots, which she said she used in her garden. There was no evidence that the pots were heavy.
53 The plaintiff was shown at a restaurant with friends, eating a meal.
54 Mr Dooley was provided with the surveillance material. Mr Dooley did not view the surveillance or comment upon it.
55 I took the view that the activity undertaken by the plaintiff in the surveillance was mostly right handed and was not inconsistent with her evidence.
56 As the surveillance represents only a snapshot of the plaintiff and the footage was not inconsistent with the evidence, I place little reliance on the surveillance.
57 The defendant also tendered Facebook posts from the plaintiff’s Facebook account between the periods of 2015 to 2018.
58 The Facebook posts tendered consisted of photographs of the plaintiff with her partner and daughter, as well as her garden. The plaintiff said that she posted the photographs some time after the photographs were taken. The photographs showed the plaintiff has many potted plants in a small area. The plaintiff’s evidence was that she had assistance moving the garden pots.
59 The Facebook posts were not provided to any of the medical witnesses. I take the view that the Facebook posts are a small snapshot of the plaintiff’s daily life. Accordingly, I place little reliance on the Facebook posts.
Analysis
60 The medical evidence was expressed by Mr Ash Chehata, upper limb orthopaedic surgeon, who examined the plaintiff on three occasions; Dr Iain Nicholson, the plaintiff’s general practitioner, and Mr Michael Dooley, orthopaedic surgeon, who examined the plaintiff at the request of the defendant’s insurer in February 2019.
61 Mr Chehata’s diagnosis of the left shoulder was that the plaintiff had suffered a likely partial thickness rotator cuff tear in the left shoulder. He accepted that her employment, which was based around manual labouring jobs, pushing and pulling sheets through a machine, folding and feeding sheets, is the cause of her ongoing impingement, bursitis and partial thickness tearing.
62 Dr Nicholson accepted that the plaintiff’s employment was a possible cause of the plaintiff’s injury.
63 Mr Dooley said the plaintiff had mild naturally occurring and age-related degenerative rotator cuff disease of her left shoulder. He was aware of her work history in the laundry when she described the onset of pain in her left shoulder. Based on her history, Mr Dooley thought it likely that she sustained a soft tissue injury to her left shoulder that involved some aggravation of a degenerative rotator cuff disease.
64 Mr Dooley accepted that the injury was work related. Further, the plaintiff reported no left shoulder pain when performing physical work in the past. Mr Dooley was the only medical witness to suggest the plaintiff was suffering a mild naturally occurring age-related degenerative rotator cuff disease of her left shoulder. My Dooley was not provided with the ultrasound of 30 September 2015 which diagnosed a tear. Mr Dooley referred to bursitis, not a tear.
65 Accordingly, I accept that the plaintiff’s current condition is work related.
66 Counsel for the defendant submitted that there had been a marked interruption to her activities of daily living, based on medical conditions other than the left shoulder, and that the plaintiff’s counsel had not attempted to disentangle those medical conditions. In particular, counsel for the defendant was referring to the plaintiff’s complaints of bilateral shoulder pain, neck pain, low back pain and her reliance on meditation, and psychological support.
67 The plaintiff’s evidence was that the left shoulder was the predominant injury. In re-examination, she said it was worse than the back injury.[3] The plaintiff said the left shoulder injury prevented her from working as a cleaner.[4] Further, she ceased work because of the left shoulder. The plaintiff was reporting left shoulder pain to her general practitioner. The Claim Form referred to the left shoulder injury. The physiotherapy treatment the plaintiff received was for the left shoulder and spine, but mainly the left shoulder.
[3]Transcript 65, Line 27
[4]Transcript 17, Line 9
68 Mr Dooley examined the plaintiff on one occasion in 2019. He examined the plaintiff’s left and right shoulder. He stated that the right shoulder moves through the same range of motion. He confined his opinion to the left shoulder injury. Mr Dooley said that the plaintiff has mild naturally occurring and age-related degenerative rotator cuff disease in her left shoulder. He said that based on her work history, the plaintiff has likely sustained a soft tissue injury to her right shoulder which involved some aggravation of her underlying degenerative rotator cuff disease. He examined the cervical spine and noted that there was mild tenderness along the left side of the neck. I accept that his finding is more likely linked to the left shoulder. Otherwise he did not make any comments on the right shoulder. This is significant given the plaintiff reported to him thoracolumbar spine pain and impingement of her right shoulder which she related to her employment. I accept that if the right shoulder and spinal pain were relevant, Mr Dooley would have specifically mentioned the issue in his report.
69 Mr Chehata examined the plaintiff on three occasions as early as 2016. Mr Chehata examined the range of motion in the right shoulder as compared with the left shoulder. In particular, in his report of July 2017, he said the right shoulder bursitis and impingement had clinically improved and resolved. In his report of May 2019, while the plaintiff reported bilateral shoulder pain, he noted the majority of the left shoulder to be quite irritable. Further, the internal rotation of the left shoulder was 20 degrees less than the right shoulder. He limited his comments in the main to the left shoulder.
70 Based on the medical evidence, I accept that the medical evidence distinguished the left shoulder injury from the other physical injuries.
71 Mr Dooley said that the plaintiff had a psychological reaction to her situation which influences her ongoing symptoms. He said the plaintiff reported being anxious and depressed. I do not take into account Mr Dooley’s comments in relation to the plaintiff’s psychological reaction given he is an orthopaedic surgeon. Furthermore, I am not permitted to do so under the Act.
Pain and suffering consequences
72 It was accepted that the plaintiff was right-hand dominant.
73 I shall now consider the pain and suffering consequences the plaintiff says she suffers as a result of the work-related injury, namely the left shoulder.
Pain and dysfunction
74 The plaintiff’s evidence is that she has constant pain in her left shoulder which has never gone away. She describes a dull persistent ache even when she is not using her shoulder. The pain is located on the outside of her shoulder and travels into the back of her shoulder into the scapular region. The plaintiff said that the pain in her left shoulder is aggravated by any use of the left arm, and she has increased pain in her shoulder when she performs repetitive activities such as pulling, pushing, lifting and stretching her left arm above her head. The medical witnesses accepted that she would suffer pain in the above circumstances.
75 The plaintiff said that her pain is exacerbated when she does housework such as hanging clothes on the washing line, vacuuming and mopping. She said that she paces herself when doing domestic duties, she requires rest between tasks and, as a result, it takes her longer to complete housework. The plaintiff reported this to the medical witnesses she consulted.
76 I accept the plaintiff’s complaints of pain are consistent with the medical evidence. In considering the level of pain the plaintiff suffers, I am influenced by the treatment the plaintiff receives.
Medication and treatment
77 The plaintiff’s evidence is that at present she takes over-the-counter medication including Panadol Osteo twice a day. She uses both heat and cold packs on her shoulder and uses a hand massage vibratory machine regularly. She also uses massage creams and oils which she rubs into her left shoulder on a regular basis. She has a hot spa at home which provides relief for her shoulder pain. She attends water exercises twice per week. She previously took Celebrex which she found affected her memory.
78 The plaintiff continues to attend physiotherapy (approximately five sessions per year through Medicare). In January 2019, her general practitioner prepared a chronic pain management plan, which gave her a further five sessions of physiotherapy. On the odd occasion, she has paid for additional physiotherapy sessions. She attends acupuncture sessions which she has paid for herself. She would like to attend more sessions but cannot afford the sessions. She also attends a psychologist, Ms Smith, with whom she has recently completed a pain management program between March and June 2019. The plaintiff said she continues to practice the techniques she was taught in the pain management program.
79 I accept the plaintiff suffers pain, for which she takes over-the-counter medication on a daily basis, applies creams and oils on a regular basis, uses a hand massage machine, attends physiotherapy to the limit of her entitlement, and on occasions has funded sessions as well as acupuncture. She practices the techniques she was taught in the pain management program. I assess the plaintiff’s level of pain and her treatment at the medium level of the range.
Activities of daily living
80 The plaintiff reported to the medical witnesses the difficulties she suffers in activities of living. She struggles to perform simple tasks such as cleaning, mopping, vacuuming and hanging the clothes on the line. The plaintiff’s evidence was that initially her elder daughter used to assist her with these tasks, but she no longer lives with the plaintiff and the plaintiff is required to perform these tasks even though they cause her pain. The medical witnesses accepted that she would suffer restrictions in activities which are repetitive in nature or require elevation of her left arm. I accept that this is a consequence which I can take into account.
81 Based on the medical evidence, I accept that the plaintiff would have difficulty performing the activities of daily living which were repetitive in nature with her left shoulder. I accept that such a consequence is in the middle of the range.
Sleep
82 The plaintiff said she suffers interrupted sleep because of the left shoulder pain. She often wakes at 2.00 or 3.00am and fills a hot water bottle which she puts on her shoulder, which assists her to return to sleep. I accept that interrupted sleep is a consequence which I can take into account. There is no evidence that the plaintiff relies on medication for sleep. Accordingly, I accept that this is a consequence in the low end of the range.
Work
83 The plaintiff’s evidence is that she is very keen to return to work and, had she not been injured, she would have continued to work in the laundry, performing physical work. Further, had she not been injured, she could have obtained part-time employment as a cleaner, housekeeper or some other form of manual work for which she has experience. While she performs some domestic work at home, pacing herself with rest breaks, she cannot work on a consistent and reliable basis doing manual or physical jobs such as cleaning or housekeeping work. The evidence is that her daughter started school in February 2019 and by the time of the hearing she had not found work.
84 The medical evidence is that the plaintiff cannot perform physical work. She is more suited to perform clerical work. To the plaintiff’s credit, she undertook study to qualify her for administrative work. In 2016, she completed a Diploma of Business at the Federation University, Sale campus. She is presently enrolled with Sureway, a disability employment agency. The plaintiff said she has been applying for clerical jobs with the assistance of Sureway. She has had no success and only been offered an interview on one occasion.
85 The evidence is that when she lived in the Philippines, the plaintiff performed some office work in a finance organisation interviewing clients in her mother tongue of Tagalog and English. She has no office work experience in Australia. The plaintiff’s English was limited. On occasions she had difficulty expressing herself. My impression of the plaintiff’s command of English was that in a competitive market she would have difficulty obtaining employment performing office work.
86 The plaintiff currently receives a pension from Centrelink and child support from the father of her daughter. The plaintiff indicated to the Court that she was keen to be financially independent.
87 I accept that the plaintiff’s prior employment in Australia has been manual/physical in nature which she is no longer able to perform because of her left shoulder injury.
88 In Ellis Management Services Pty Ltd v Taylor,[5] the Court of Appeal said that the inability of a worker to engage in employment which he/she enjoyed is a matter that can be taken into account in assessing pain and suffering consequences and loss of enjoyment of life. In this case, the plaintiff gave evidence about the fact that it was her intention to continue working for the laundry. She expressed her frustration of not being able to continue with that work. She reported this to her psychologist, Ms Smith. I take into account that she continued to work for two years after her youngest child was born. I also take into account the plaintiff’s evidence that she wished to be financially independent and a positive role model for her daughter. I accept the plaintiff’s evidence that it was her intention to work and be financially independent.
[5][2013] VSCA 326 paragraph [35]
89 I accept that the plaintiff is no longer able to perform physical work. I accept that this is a consequence which I can take into account. I assess this consequence at the mid to high end of the range.
Participating in the performing arts, including dancing
90 The plaintiff’s evidence was that prior to the injury, she was fit and flexible. She had worked as a professional performer or entertainer doing acrobatics, dancing and ribbon dancing. She was able to perform splits, and overhead movements with ribbons using her upper limbs, twirls and cartwheels.
91 The plaintiff said she has resigned from the Bayanihan Community Group. The plaintiff’s evidence in court was that she had ceased performing these activities prior to her work injury. Accordingly, I do not consider this a consequence I can take into account.
Swimming
92 The plaintiff’s evidence is that her daughter has recently started swimming lessons. The plaintiff had never been taught to swim, so commenced swimming lessons so that she was in a position to look after her daughter in the water. Because of her shoulder injury, she is unable to do backstroke at all and is limited in doing freestyle swimming because she struggles to lift her arm overhead. She said her swimming teacher has modified her technique. The plaintiff says her shoulder is more painful after a swimming lesson. I accept this is a consequence which I can take into account. I assess it at the low to medium end of the range.
Gardening
93 The plaintiff’s evidence is that she performs limited gardening, mainly very light work. She no longer mows her own lawn. The defendant produced photographs which had been taken from the plaintiff’s Facebook page. The plaintiff agreed the photographs were of plants potted by her and placed in the garden. The plaintiff’s evidence was that she had assistance with the planting and the moving of the pots. She was not required to lift the pots. I accept that the plaintiff has an ability to grow plants in pots but is limited in other gardening activities. I accept this is a consequence I can take into account. I assess this consequence at the low to medium end of the range.
Conclusion
94 I accept that the inability to work in pre-injury employment or manual employment is a consequence at the high end of the scale. I also take into account that the only work the plaintiff has performed in Australia has been manual work which is now no longer available to her because of her left shoulder injury. I accept that the plaintiff’s inability to return to work represents a significant loss to this plaintiff, both with respect to her enjoyment of life and her self-esteem. Given the injury has persisted for six years, I accept the consequences are permanent, which is in accordance with the medical evidence.
95 I am satisfied that the plaintiff was involved in a work injury which, to this plaintiff, resulted in her experiencing symptoms of a physical nature. The consequences of her left shoulder injury have impacted upon her life as she knew it before the work incident. She has suffered for six years, and the medical evidence is that the injury is permanent. The evidence is that she can no longer engage in pre-injury employment. To the plaintiff’s credit, she has trained to obtain office employment. I formed the opinion, based on her presentation in court, that she may have difficulty obtaining office work. I consider her English was limited.
96 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to her of her impairment can be reasonably described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence equally but rather attributed appropriate weight to each consequence in light of the evidence.
97 I accept that the left shoulder injury has consequences to the plaintiff which she reported, and when judged by comparison with other cases in the range of possible consequences, may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”. In making this assessment I have only looked at the consequences of the left shoulder injury alone.
98 Taking into account the above consequences, I consider the plaintiff suffers the test for pain and suffering consequences. Accordingly, I grant the plaintiff leave to bring proceedings for pain and suffering consequences.
99 I will hear the parties on costs.
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