Elliott v Corporate Express Australia Limited and WorkSafe
[2011] VCC 354
•18 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-02489
| DONNA ELLIOTT | Plaintiff |
| v | |
| CORPORATE EXPRESS AUSTRALIA LIMITED | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7- 9 February 2011 |
| DATE OF JUDGMENT: | 18 April 2011 |
| CASE MAY BE CITED AS: | Elliott v Corporate Express Australia Limited & WorkSafe Victoria |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 354 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Application for leave to commence proceedings in respect of pain and suffering and loss of earning capacity – injury to non- dominant arm and shoulder – credit to be given to plaintiff’s evidence – leave granted in respect of pain and suffering – Accident Compensation Act 1985, s.134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC and | Nowicki Carbone |
| Ms M Pilipasidis | ||
| For the Defendants | Mr P D Elliott QC and | Hall & Wilcox |
| Ms M Tsikaris | ||
| HIS HONOUR: |
1 The plaintiff, Ms Donna Elliott, seeks leave under s134AB (16) of the Accident Compensation Act 1985 to bring proceedings against Corporate Express Australia Limited (Corporate Express) for damages for pain and suffering and loss of earning capacity in respect of injuries alleged to have been sustained by her in the course of her employment with Corporate Express at Port Melbourne on 22 February 2010.
2 Ms Elliott relies on s 134AB (37) of the Act claiming that she has sustained a permanent serious impairment to her left upper limb and left shoulder. In addition she alleges that she has suffered chronic pain. Ms Elliott relied on descriptions of the compensable or pathological injury underlying the impairment as a soft tissue injury to the rotator cuff of the shoulder as well as injury to the long head of the biceps.
3 Ms Elliott is right hand dominant.
4 Ms Elliott was the only witness called. She also swore two affidavits. A number of medical reports and other documents were tendered in evidence.
The Injury
5 Ms Elliott commenced employment with Corporate Express, which supplied stationery and office supplies, in or about February 2005 and took up fulltime duties as a warehouse storeperson. Her duties involved picking and packing goods. She was predominantly engaged in work within the “binning” or “checkers” section. Her work included retrieving heavier stock located on racks above shoulder height, in a fast-paced and repetitive manner. The boxes weighed up to 10 kilograms. Ms Elliott stated that in about late January 2008, having worked in the “checkers” section for some time, the heavier fast- paced and repetitive workload was starting to cause her pain in her left shoulder. In or about February 2008, she asked her supervisor to be transferred to the “binning” area which was less physically demanding.
6 According to Ms Elliott’s evidence, which in this respect I accept, on 22 February 2008, as she was reaching above shoulder height to put packs of about twenty five empty boxes onto a rack, she felt pain in her left shoulder and upper arm. She reported her injury to her team leader and was advised to seek first aid. She did so and applied an icepack to her left upper arm and shoulder. However the pain did not abate and she recalled that her upper arm became swollen.
Medical Treatment after Injury
7 Later that day, Ms Elliott consulted her general practitioner, Dr D Pinto, who diagnosed a left shoulder strain, and advised rest, prescribed painkillers and referred her for an x-ray of her left shoulder and a Venous Doppler Ultrasound on her left arm. He certified her unfit for work for approximately six weeks. He also referred her for physiotherapy and prescribed analgesics. Dr Pinto’s report in April 2009 stated that Ms Elliott apparently:
“… had had some pain in the shoulder region for some weeks prior.
She was noted to have pain in the shoulder with restricted movement and the shoulder appeared to be swollen. From memory the pain seemed exaggerated for the type of injury described and I feared there may have been a fracture or something serious.”[1]
[1] Plaintiff’s Court Book (“PCB”) 41
8 Dr Pinto referred Ms Elliott to Mr B Lynch, an orthopaedic surgeon, who referred her for a MRI scan of her left shoulder. This revealed:
“Severe supraspinatus and to a lesser extent infraspinatus tendonitis with partial tearing of the supraspinatus tendon. Mild to moderate subacromal bursitis. Thickened coracoacromial ligament indenting the cuff but no evidence of bony spur. Intra-articular long head of biceps tendinosis but no evidence of subluxation or dislocation.”[2]
(sic)
[2] PCB 43
9 On 3 July 2008, Mr Lynch performed arthroscopic surgery.
10 In late October 2008, Ms Elliott began consulting a different general practitioner, Dr L Lewi, as she was not happy under the care of her previous doctor. Dr Lewi referred her to Mr C Mills for a second orthopaedic opinion. Mr Mills in turn referred her for a MRI scan of the cervical spine, left shoulder and brachial plexus. The MRI scan revealed some damage. On two occasions Mr Mills injected her left shoulder with steroids in an attempt to improve movement and relieve pain.
11 In about February 2009, Dr Lewi referred Ms Elliott for an ultrasound of her left shoulder. She also underwent hydrodilatation of her left shoulder.
12 On 31 July 2009, Mr Mills performed a second arthroscopy on her left shoulder. Ms Elliott did not find that it improved her shoulder.
13 She continues to see Dr Lewi fortnightly and receives Xylocaine injections continues. She has had some physiotherapy treatment. She relies on various medications to treat her pain, including Nurofen, OxyContin, Endone and Norspan patches.
Ms Elliott Returns to Work
14 In early April 2008, Dr D Pinto certified that Ms Elliott was fit to take on alternative duties. She returned to work performing alternative administrative tasks in the office two hours per day, five days a week. These hours increased to five per day, five days per week in September 2008. She gave evidence that she had pain in her left upper arm and shoulder, but mainly used her right arm to operate the computer for data entry and perform light administrative tasks.
15 Ms Elliott increased her work to six hours per day, five days per week in October 2008. However her evidence was that she experienced an aggravation and exacerbation of her left upper arm and shoulder pain and began experiencing involuntary muscle contractions in her left fourth and fifth fingers. She continued to perform office work until 22 May 2009 when she was given time off work to have the second arthroscopy.
Ms Elliott Accepts a Redundancy Package
16 After the second arthroscopy, on 4 August 2009, whilst absent from work, Ms Elliott accepted a redundancy package, as part of which on her evidence she received about $19,000. Her employment with Corporate Express ended on 21 August 2009.
17 She stated that she accepted the redundancy package, because as she was injured, it was better for her to go, than for someone else to lose their job.[3]
[3] Transcript (“T”) 59
18 Ms Elliott stated that she assumed upon receiving the redundancy payout she would not receive any WorkCover payments for a period.
19 By letter dated 8 September 2009, CGU Workers Compensation wrote to Ms Elliott informing her that because she had received a lump sum payment of $15,582.69 on 21 August 2009 relating to redundancy, she would not be entitled to weekly payments for 21 weeks and 3 days, being the period beginning on 23 August 2009 and ending on 20 January 2010. Ms Elliott denied that she received the letter and there is no evidence that she did. However she knew that she was not going to receive workers compensation payments for a period.
20 Ms Elliott spent some money purchasing a Ford Falcon automatic car and soon found that most of the redundancy money was spent. Her evidence was that by October 2009, she had little money left and decided that she had no choice but to obtain a job, even though she was in a lot of pain.
Ms Elliott’s Return to Work with the Australian Lamb Company Pty Ltd
21 Ms Elliott returned to work in the following circumstances. On 28 October 2009, she completed a registration form for industrial employment with Total Staffing Solutions Ltd, which was an employment agency.[4] She answered a number of questions on the form by ticking the “no” box. In the section of the form asking whether she suffered from a range of health conditions or “any other health condition that TSS should be made aware of” she ticked all the “no” boxes, except in respect of asthma. Again by ticking the “no” boxes, she stated in response to one question that she never had had an Accident Compensation Claim and, to another, that she had never suffered an injury or ailment that could reoccur or be aggravated by the nature of the work associated with the position that she was applying for.
[4] Exhibit 4
22 Ms Elliott ticked the “yes” box to the questions:
“Do you consider yourself capable of, or suited to any of the following
scenarios:
Process or production line work or other such tasks that require extended periods of standing?”
Any type of work involving repetitive hand and arm movements?
Any type of activity involving bending, reaching above your head, or kneeling?”
23 She ticked the “no” box to the question whether she considered herself capable of, or suited to the scenario of:
“Any type of work involving repetitive lifting of more than 10kg.”
24 Ms Elliott explanation of her answers was, that she would not have got any work had she said that she had suffered an accident or injury.[5] She needed the employment and thought that she had no other choice.[6] She had approached Centrelink, but had no entitlement to any benefit.[7] She knew that her answers were misleading.[8]
[5] T 56,58
[6] T 55
[7] T 55
[8] T 58
25 In a part of the Total Staffing Solutions’ employment forms, entitled “Casual Employee Agreement”, which contained the Terms and Conditions of her prospective employment, which Ms Elliott signed, she declared that:
“The information I have provided to Total Staffing Solutions Limited is true
and correct.”
26 Following the completion of her application with Total Staffing Solutions, Ms Elliott commenced work on 5 November 2009 with the Australian Lamb Company Pty Ltd in Sunshine West as a meat packer, working from 6.30 am to 3.00 pm each week day, plus a couple of Saturdays. It is unnecessary to determine who her employer was in that work.
27 According to Ms Elliott’s evidence, she packed meat into bags in the following manner. She would stand next to a slow moving conveyor belt operating above her, which carried cuts of meat, weighing up to 3 kgs each. She is right hand dominant, so she would use her right hand to pick up each piece of meat and put it into a plastic bag, which she held with both hands. She would slide the bag under the meat, lift up the bag with the meat inside with her right hand and steady it with her left hand. Then using her right hand, she would put it on the conveyor. Most of the day she stood. Each separate instance of packing meat into a bag took 4 to 5 seconds.[9] Each shift was punctuated by two, twenty minute breaks and a thirty minute lunch break.
[9] T 66
28 On occasion Ms Elliott performed other duties involving packing mince meat into one kilo bags.[10]
[10] T 72
29 The plant shut down at Christmas for one and a half weeks. Ms Elliott was absent from work for four to five days because of her asthma,[11] but took no time off because of the condition of her arm. Her evidence was that her left arm still caused her pain, which increased as the day progressed. She took up to 8 Nurofen tablets a day, but declined to take stronger medication, because it would make her drowsy and impair her concentration. She ceased taking Endone or using Norspan patches.[12] She did not consult Dr Lewi while performing that work.
[11] T 98
[12] T 97
30 Ms Elliott’s evidence was that over time she found it increasingly difficult to put up with the pain in her left shoulder, but she did not want to take any time off work, because she was casual and would lose pay. Eventually she decided that she could not do the job any longer because of the pain, and ceased working at the end of January 2010. This was when her weekly compensation payments were due to resume.
31 The defendants relied on DVD and video surveillance evidence taken of Ms Elliott on 3 December 2009 and from 18 to 22 January 2010, when she was working with the Australian Lamb Company. It showed her parking her car in the plant car park and carrying a plastic bag in her left hand into work. She stated that in the morning, the bag contained a small light lunchbox with a sandwich plus a small drink bottle. In the afternoon, the bag contained the same items, except they were empty. She was able partially to extend her arm to carry something light, but her preference was to cradle it against her body. She agreed that the video evidence showed that in the morning she would stretch out her arm, but stated that she would try to get it moving, because in the morning it was very stiff and sore.[13] She said that the video footage showed that it took her time to park her car correctly, as she found it hard to manoeuvre.[14]
[13] T 61-62
[14] T 96
32 Ms Elliott’s evidence was that normally she carried her left arm in a broken- wing position, because that posture gave her arm support and made it less painful to walk.[15]
[15] T 96
33 Ms Elliott carried her arm in this broken wing position when giving evidence and also it appears from medical reports, when attending various doctors, whose reports were in evidence.
34 Ms Elliott stated in her first affidavit that she generally avoided driving to work and often used public transport. If she did drive, she generally avoided driving long distances, because the pain in her left shoulder tended to become exacerbated. However as the surveillance evidence showed, on occasions she drove from her home to Sunshine West, a trip of about 12 minutes.
Ms Berger’s Evidence
35 Ms Berger was the packing room supervisor with the Australian Lamb Company. She supervised twenty or thirty employees[16] including Ms Elliott. She swore an affidavit stating that Ms Elliott was required to undertake basic packing work. This involved some hand/wrist/arm/shoulder action. At no stage during the period of her employment did Ms Elliott raise any concerns about the work she was required to perform. She did not recall Ms Elliott mentioning any injury during the period of her employment. Ms Elliott never appeared impeded by hand/wrist/arm/shoulder, or other injury, as she undertook her duties. She stated, “the plaintiff did not demonstrate any sign [of] injury up until the time she ceased work”.[17]
[16] T 68
[17] Defendants’ Court Book (“DCB”) 6b
36 Ms Berger was not cross-examined on her affidavit. Ms Elliott gave evidence that she hid her injury, because if she had told her supervisor about it she would have been fired.[18]
[18] T 68
Resumption of Workers’ Compensation Payments to Ms Elliott
37 Ms Elliott resumed receiving WorkCover payments in February 2010, almost as soon as she ceased her meat packing work and continued to receive them until 8 January 2011.[19]
[19] T 36
38 In order to receive the payments Ms Elliott had to complete Certificates of Capacity. Of particular focus at the trial was a Certificate that she signed on 2 February 2010, just after she stopped work.[20]
[20] DCB 250
39 It contained a certification from Dr Lewi that Ms Elliott was unfit for any duties from 20 January to 17 February 2010. Ms Elliott had in fact worked between 20 January and 31 January 2010. Dr Lewi certified that he had clinically examined Ms Elliott and that the information and medical opinions contained in the certificate were “to the best of my knowledge, true and correct”.
40 Ms Elliott signed a declaration, part of which contained a box, which had been ticked by hand and which stated:
“ I have not been engaged in any form of paid employment self employment or voluntary work since the last continuing certificate of capacity was issued and declare that the details I have given on this certificate are true and correct, knowing that false declarations are punishable by law.”
41 Under the declaration was a notation stating:
“if you have been engaged in any type of employment please attach
details when you forward this certificate to your employer.”
42 Ms Elliott was cross-examined about this Certificate. She sought, and was granted, a certificate under s 128 of the Evidence Act 2008 in respect of some parts of her evidence on this issue. She stated that she had a bad problem of signing things without reading them and that she “never, ever read fine print.”[21]
[21] T48
43 Ms Elliott gave evidence that the normal practice with the Certificates was that Dr Lewi ticked the box, she filled in the name Corporate Express and the number, she signed it, put it in an envelope and sent it off without reading it.[22] She could not remember whether she told Dr Lewi that she had been working. She had not placed the tick in the box on the Certificate indicating that she had not been working.[23]
[22] T 49 -50, 100-101
[23] T 50
44 Ms Elliott stated that she could not read the fine print of the certificates.[24] She did not intentionally mislead anyone.[25]
[24] T100
[25] T48
45 Dr Lewi was not called to give evidence.
Medical Treatment since January 2010
46 After ceasing work, Ms Elliott returned to Dr Lewi for treatment. She commenced Xylocaine injections every two weeks in 4-5 different places in her shoulder. She hated receiving them.[26] She takes 10 mgs of Oxycontin twice daily. She also takes Temazepan for sleeping once or twice a week.[27]
[26] T99
[27] T 7
The Surveillance Evidence
47 In addition to the surveillance evidence at Ms Elliott’s workplace referred to above, the defendants relied on further surveillance evidence showing Ms Elliott at various locations in July, August and September 2010. This evidence showed Ms Elliott shopping in a supermarket, sitting in front of poker machines, carrying her wallet and keys in her left hand, shopping again at a supermarket carrying a basket in her right hand, but putting the basket down and reaching up for items from the shelves with her right hand. A further DVD showed Ms Elliott walking into a shopping centre and entering shops and then into a poker machine venue. On one occasion, when entering a supermarket, she used her left hand to look into her bag.
48 The surveillance evidence was inconclusive. While it did not show Ms Elliott to be in great pain while walking or sitting, none of it recorded occasions when she was required to carry out any strenuous activity with her left hand or arm. On occasions, as when sitting in front of poker machines, Ms Elliott’s left arm was in the broken wing posture.
49 The surveillance evidence that the defendants chose to tender was only a small part of the surveillance footage taken of Ms Elliott.
Ms Elliott’s Evidence of the Consequences of her Injury
50 In her first affidavit, Ms Elliott stated that she continued to suffer from pain and discomfort in her left shoulder which generally felt stiff and sore in the morning. She also suffers from involuntary twinges in the fourth and fifth fingers of her left hand. Due to the restriction of movement and pain in her left shoulder, she tends to hold her left arm close to her body. As the day progresses, the pain in her left shoulder tends to increase. Cooler weather tends to aggravate the pain and stiffness in her left shoulder. She has difficulty lifting heavy objects, such as shopping bags and tends to favour her right arm as a result.
51 Ms Elliott stated that the pain in her left shoulder keeps her awake at night and she has difficulty trying to find a sleeping position that does not aggravate her left shoulder pain. As a result of the troubled sleep, she generally finds that she is tired during the day, lacks energy and finds it difficult to concentrate. She generally finds it difficult to perform domestic tasks, particularly heavier tasks such as vacuuming, or tasks involving reaching overhead, such as hanging out the washing. She performs minimal housework, and vacuums once a week. She now generally relies on using her right arm to perform most tasks, including shopping.
52 Ms Elliott gave up the social activity of horse riding, as she found it too difficult to get onto a horse using her right hand or holding on while riding. She said that this activity had been a passion.[28] However she had not ridden a horse for six to twelve months before her injury.[29]
[28] T 105
[29] T 95
53 Ms Elliott stated that her left arm had worsened since she stopped work in January 2010 and she did not believe that she would be able to perform that work again or any other factory/processing work. That was the only type of work she was qualified to do.
54 Ms Elliott gave evidence that since the injury, her left arm has been continuously swollen and is 3.5 centimetres bigger than her right arm. She had not noticed this before the day of her injury.[30]
[30] T110-111
Medical Evidence relied on by Ms Elliott
Dr D Pinto
55 Dr D Pinto, the first general practitioner, in a report dated 8 April 2009 stated that he had last seen Ms Elliott on 6 October 2008, when he certified her fit for light duties not using the left arm. He stated:
“So Donna appeared to aggravate her left shoulder by lifting a box above shoulder height. The severity of her symptoms was unusual and the persistence of the limitation of movement of the shoulder was also unusual. I found her very reluctant to return to work, there was no motivation at all. As I have not seen her since October 2008 and her injury had not stabilised at the time I am unable to provide a prognosis.”[31]
[31] PCB 43
Mr Lynch
56 Mr B Lynch, an orthopaedic surgeon, treated Ms Elliott and provided six reports to Dr Pinto.
57 On 14 March 2008, Mr Lynch recorded that there was significant irritability to the shoulder movements although the ultrasound showed no abnormality.[32]
[32] PCB 27
58 On 14 April 2008, an MRI showed tendinosis, tendinitis and bursitis. Mr Lynch treated Mr Elliott with Depo-Medrol and Xylocaine and encouraged elbow by the side activity. He recommended gentle rehabilitation.[33]
[33] PCB 28
59 In July 2008, Mr Lynch performed an arthroscopy on Ms Elliott’s left shoulder. On 15 July 2008 he reported:
“Donna is now two weeks following her left shoulder arthroscopy, subacromial bursectomy and acromioplasty. There was minimal partial thickness tearing of the supraspinatus (<5%) and this did not require repair.
The wounds have healed and I have encouraged physiotherapy to assist with mobilising and gently strengthening once again. I will review Donna again in four weeks time.”[34]
[34] PCB 31
60 On 22 September 2008, Mr Lynch wrote:
“Over the past 4-5 weeks Donna has noted some swelling and has noticed increased pain around the deltoid region and some twitching in the 4th and 5th fingers of the left hand.
Examination shows limited range of motion in that left shoulder actively to about 90˚ of elevation. Her posture is poor with the left shoulder depressed and protracted. The scapular stabiliser group is weaker and she is holding the arm supported.
I have injected the subacromial space with Depro-Medrol and Xylocaine to help any medication. I note Donna is taking some anti-inflammatory medication. The key to management here is to regain proper postural control of that left shoulder and forequarter, stabilising the scapular stabilising musculature and a gentle persistent rehabilitation.”[35]
(sic)
[35] PCB 32
Dr Lewi
61 Dr Lewi has been Ms Elliott’s general practitioner since October 2008. His notes were admitted into evidence.
62 In a report of 11 February 2009, which described the history of treatment by Mr Mills an orthopaedic surgeon, whose reports are referred to below, Dr Lewi stated:
“As she was not progressing, I referred her to another orthopaedic surgeon Mr Mills who was able to exclude serious shoulder disease. He felt there was ongoing inflammation and he recommended continuing the conservative treatment….
…
This [The ultrasound] showed a definite progression to the condition of
frozen shoulder.
…
Donna holds the left arm close to her body as if it was in a sling.
Movements of the shoulder are virtually nil.
She has suffered a Ligamentous injury to the left shoulder which has led
to a condition of FROZEN SHOULDER.
…… We expect gradual improvement although the history of frozen
shoulders is that it take months for this to occur.”[36][36] PCB 44-45
63 On 15 June 2010, Dr Lewi reported that Ms Elliott suffered moderately severe pain in her left shoulder, extending to her left hand, which she described as stabbing sharp and throbbing. The range of movement to her left shoulder and elbow was reduced and, while carrying loads with her left arm was possible, it became painful if prolonged. In his opinion, a long term course of treatment was expected and it would be many months before the pain was manageable. Ms Elliott was only capable of doing office work, which did not involve any arduous tasks with the left arm and which took into account that she lacked concentration. In his opinion, the data entry job, for which she had been assessed as suitable, was probably not ideal.[37]
[37] PCB 47-48
64 On 3 February 2011, a few days before this application was heard, Dr Lewi recorded that:
“She is still in distressing pain and requires regular taking of endone tablets and norspan patches which are powerful narcotic pain relieving medication.
She attends regularly for pain relieving injections and she [is] also being treated by Dr Jensen, specialist in Muscoskeletal Medicine.
Despite the stiffness in her left shoulder and high level of pain, I remain optimistic that she is fit to trial a return to work doing duties which are suitable as judged by occupational therapy specialists.
If suitable duties can be found, I suggest that she start work at 10 hours per week with the option to increase these hours if she is able to tolerate the work pace.
One must remain guarded on the prospect of success in her rehabilitation. With such a long time of disability, pain and restrictions in movement in the left shoulder, the prognosis for recovery is poor and she is likely to be incapacitated for the long term.”[38]
(sic)
[38] PCB 50A
65 Dr Lewi did not refer in any report to Ms Elliott’s work experience with the Australian Lamb Company, although Mr Jensen’s letter of 23 August 2010 to him, referred to it.
Mr S Jensen
66 Ms Elliott was also referred by Dr Lewi to Mr S Jensen, a pain management specialist, in July and August 2010. On 2 August 2010, Mr Jensen noted that Ms Elliott was suffering left shoulder pain and that the active movement of all left upper limbs was substantially restricted. Her left arm was still in a broken wing posture and she stated that she had been holding it like that for two years. Mr Jensen advised Ms Elliott that she was at the cross roads and it is up to her whether her condition improved. She had to commence to mobilise all upper limbs joints. She was shown how to do this with the opposite hand. She was advised to walk one hour per day.[39]
[39] PCB 82
67 On 5 August 2010, Mr Jensen recorded that he had read the surveillance reports from CGU and that Ms Elliott seemed to be able to drive without difficulty and carry a plastic bag in her left hand, which seemed inconsistent with her displayed degree of disability on his assessments.[40]
[40] PCB 81
68 On 23 August 2010, Mr Jensen again saw Ms Elliott. He confronted her with the surveillance reports. Her response was that she had to work because she had no money coming in and bills to pay. She told him that the employment only lasted six weeks. She stated that she cradled the plastic bag over her forearm when carrying it, but that her shoulder movement was still markedly restricted and that she was unable to hang her left arm by her side. She stated that she had been moving her arm and had some active rotation movement but nil abduction.[41]
[41] PCB 81
69 Mr Jensen gave Ms Elliott “the benefit of the doubt” and elected to trial some trigger point injection and stretching techniques to get her arm moving. [42]
[42] PCB 57
70 Mr Jensen intended to trial this approach for a few sessions, but apparently Ms Elliott did not continue with the treatment, or revisit Mr Jensen. She stopped going to him because she found that the pain returned once the effects of the injection wore off.
Mr Mills
71 Mr C Mills, who is also an orthopaedic surgeon, provided opinions concerning Ms Elliott’s shoulder following referral by Dr Lewi. On 20 November 2008, Mr C Mills noted two pathologies:
[43] PCB 33
(a) signs of brachial plexus irritation, possibly cervical disc; (b) ongoing subacromial bursitis/rotator cuff tendon injury.[43] 72 On 22 December 2008, Mr Mills recorded that the MRI showed that the brachial plexus was essentially normal. He stated:
“She has some ongoing tendinopathy in and around the shoulder, with some odema and changes in and around the supraspinatus in particular. I have injected this with some steroids today to try and improve her comfort as she has been quite uncomfortable.
She is still having the spasm of the ulnar two digits and we are awaiting her review by Dr Hjorth.”[44]
[44] PCB 35
73 Through a mix up with her appointments, Ms Elliott did not attend Dr Hjorth, so on 30 April 2009, Mr Mills again referred her to him. His report was not in evidence.
74 In a report to Dr Lewi dated 30 April 2009, Mr Mills stated that Ms Elliott was suffering from swelling around the shoulder, extreme pain and complete lack of movement. He expressed the opinion:
“The shoulder is a mystery… She has got bursitis. She did not have a tear. She has got a little bit of AC change suggesting a bit of arthritis which is actually very common in this age group. She has a bit of developmental congenital spurring which is mild or minimal and the glenohumeral joint is actually normal. So we are left with a small anterior acromial spur with some subacromial bursitis and no substantial tendinopathy but the possibility of adhesive capsulitis...”[45]
[45] PCB 38
75 On 28 May 2009, Mr Mills reported to Dr Lewi that Ms Elliott should have a synovectomy of the inflamed synovium and bursectomy of the inflamed bursa and a smoothing procedure and repair of any full-thickness tears. He stated:
“As this is a pre-existing, significantly disabled shoulder I am not expecting miracles but I think the current situation is not optimal and it is worth a further attempt at treatment. On this basis I am prepared to offer this to her and I think she is keen to proceed at this point.”[46]
[46] PCB 39
76 On 19 August 2009, Mr Mills reported that Ms Elliott had undergone a left shoulder arthroscopy. He described “a left shoulder arthroscopy with some recurrent fraying of the supraspinatus superiorly, with a lot of inflammation and adhesions”. He stated:
“We have performed a repeat breakdown of the adhesions and debridement. She needs probably not too long in the sling, increasing activity, lots of heat and massage…”[47]
[47] PCB 40
Dr Blombery
77 Mr Mills referred Ms Elliott to Dr Blombery, a consultant physician (vascular disease), who reported on 10 June 2009:
“She does have some autonomic disturbance on measurement of skin temperature although this is not obvious clinically. She may well therefore have a component of complex regional pain syndrome, type 1 and involuntary movements are certainly a well defined component of this disorder.”[48]
[48] PCB 51
Mr B Healey, Psychologist
78 Dr Lewi referred Ms Elliott to Mr B Healey, a clinical psychologist, who saw her on 21 June 2010 and 6 July 2010. He considered that she needed assistance in relation to stress management. She did not keep a further appointment. Mr Healey gave her a comprehensive relaxation programme on CD and instructed in its appropriate use to ease tension and to induce better sleep patterns.[49]
Dr P Kornan
[49] PCB 56
79 On 30 September 2010, Ms Elliott saw Dr P Kornan, a forensic psychiatrist. Dr Kornan recorded that from the psychiatric point of view, she presented with major depression and an adjustment disorder with anxiety. He stated that:
“Her psychiatric state [is] of a secondary nature to her physical injury, and the two operations has not resolved. It is currently, at the upper level of chronic, mild severity. …
It appears that ongoing pain, and feelings of discomfort from the pain, have led to her having depression, and an adjustment disorder with anxiety. …
Her psychiatric state represents a disability, but without an associated incapacity for work. In other words, it is not her psychiatric state which prevents her from working. If she cannot work on medical grounds, it would be due to physical factors of her injury, which are anyway outside my area of expertise. …
She would not benefit by having treatment from a psychologist, or a psychiatrist, as it would be likely to merely make her brooding, and introspective.”[50]
[50] PCB 65-68
Mr C Haw - Medico-Legal
80 On 26 November 2010, Ms Elliott saw Mr C Haw, an experienced orthopaedic surgeon. Mr Haw expressed the opinion that there was a marked increase in the circumference of the arm, although there was no evidence of any loss of muscle power, or evidence of wasting supraspinatus or infraspinatus. The left shoulder blade was set some 3 centimetres lower than the right and there was only 0 to 90 degrees of shoulder abduction, which appeared to be largely leno humeral, otherwise there was no scapular rotation. Ms Elliott had only 10 degrees of internal rotation and 20 degrees of external rotation and could not get her hand out behind her back or behind her head. There appeared to be full power over the external rotators and of the abductors and a global loss of sensation in the arm, that did not correspond to any dermatome distribution with the maximum numbness being in the region of the deltoid. There were normal reflexes.
81 Mr Haw concluded that Ms Elliott had sustained an injury to the rotator cuff and both longhead of biceps in the left shoulder. She had ongoing evidence of rotator cuff tendinopathy and persisting pain and stiffness in the shoulder. Mr Haw concluded that Ms Elliott’s shoulder injury was stable from a medical legal perspective. However it severely limited her capacity to engage in normal social, domestic and recreational activities, as it had resulted in a serious psychological response with depression. Ms Elliott did require expert management. Injections of local anaesthetic should be accompanied by a rehabilitation program that she initiated herself to try and regain as much motion in both the scapular, thoracic and glenohumeral joints as possible Surgical intervention was not indicated.
82 In Mr Haw’s opinion, Ms Elliott was currently incapable of resuming employment, and virtually unemployable. Her general prognosis was at best fair, but there was potential for improvement in her range of motion if she was prepared to participate and put up with the pain associated with this rehabilitation.[51]
[51] PCB 58-61
The Defendants’ Medico-Legal Evidence
Mr O’Brien
83 Ms Elliott was examined by Mr J O’Brien, an orthopaedic surgeon in 2008 and 2009. In his first report dated 9 May 2008, Mr O’Brien offered a very guarded prognosis and stated that Ms Elliott had marked restriction of function of the non-dominant left shoulder which clearly continued significantly to restrict her general activities.[52]
[52] DCB 9
84 On 30 September 2008, Mr O’Brien stated that there were physical signs indicating painful restriction of all movements of the left shoulder, including quite marked restriction of rotation. This suggested the presence of ongoing inflammatory process, which appeared to involve the rotator cuff and the glenohumoral articulation suggesting the presence of capsulitis. This possibly was complicating a recovery from surgery. He concluded that Ms Elliott had clinical evidence of capsulitis of the left shoulder, which was complicating her recovery from surgery.
85 In Mr O’Brien’s opinion, Ms Elliott remained very restricted in her left upper limb function, which restricted her overall activities. She was not capable of her pre-injury occupation and given the nature of her clinical condition and her ongoing conservative treatment, she would need to continue with limited hours and light duties for some considerable time. Recovery from the pathology would be extremely slow and it would be a considerable time before she could return to her pre-injury occupation.[53]
[53] DCB 11-12
86 In a report of 1 April 2009, Mr O’Brien remained very guarded in his prognosis, but expressed the hope that with the usual natural history of adhesive capsulitis, the inflammatory reaction would slowly subside in twelve to eighteen months. He repeated his assessment that Ms Elliott had significant disability and loss of function of her left non-dominant shoulder and arm. He considered that it was difficult to predict the timing of any clinical improvement, however for the foreseeable future, Ms Elliott would experience severe restriction in function of her left shoulder and arm which would have a major impact on her general, domestic, social and recreational activities.[54]
[54] DCB 15
87 On 1 July 2009, Mr O’Brien referred to a recent MRI as appearing to confirm significant tendonopathy with some suggestions of impingement. He considered that the continuing severe symptoms formed an acceptable indication for arthroscopic surgery. [55]
[55] PCB 16
88 On 3 March 2010, Mr O’Brien provided a further report following a re- examination of Ms Elliott on 23 February 2010. He recorded that Ms Elliott had last worked in July 2009 and had not been back to work since her surgery. She indicated that she was now unable to do any domestic duties, although she continued to do all the normal activities of daily living. He offered a very guarded prognosis, as Ms Elliott presented with significant disability associated with her non-dominant left shoulder and arm. Her level of pain would not even allow her previous light employment. He considered that Ms Elliott was totally incapacitated and would remain so until some improvement in the severity of pain occurred, which was unlikely in the near future. Job seeking for Ms Elliott at the present was not practical. She remained significantly limited in her general, social, domestic and recreational activities and this state would continue.”[56]
[56] DCB 19-20
89 Ten weeks later, on 18 May 2010, Mr O’Brien reported that the facts he had set out in his previous reports did not correlate with the reported observations contained in the surveillance reports which suggested that Ms Elliott was undertaking full-time employment at the same time that she had indicated to him that she was totally incapacitated. He stated that he had no knowledge of the employment duties she had undertaken, and it would be helpful to have that information. However he did state that the observed use of the left arm going to and from the employment suggested a substantially improved range of movement than that demonstrated to him. This suggested that in January 2010 Ms Elliott did have a work capacity. It appeared that she would not have required active treatment in January or March 2010. He could not however be confident on the basis of the observations in January 2010 that Ms Elliott had a full range of shoulder movement, but it appeared that she had the capacity to undertake full time work. He considered that Ms Elliott had given significant false information or, there had been substantial alteration in the clinical appearance from that seen in January 2010 without any apparent explanation.[57]
Mr Simm
[57] DCB 21-22. The reference to January 2010 appears to be to the examination on 23 February 2010
90 Ms Elliott was examined by Mr R Simm, orthopaedic surgeon, on 28 September 2010, on behalf of the first defendant. Mr Simm stated that there were a number of findings which indicated that non-organic factors were contributing to the clinical presentation. Very little abnormality was reported on the ultrasounds and the MRI scans had consistently reported marked supraspinatus tendonopathy with some associated bursitis. He was unable to establish a satisfactory diagnosis of a physical condition that would explain the clinical course of the case. He considered Ms Elliott had the capacity to undertake suitable employment, including work at bench height using both hands. She had normal use of her dominant right upper limb. Ms Elliott seemed to be incapacitated by non-organic and possibly psychological factors[58]
[58] DCB 27-29
91 In a subsequent report of 15 December 2010, after Mr Simm had received surveillance reports and DVDs of surveillance footage, he stated that that information confirmed his impression that there was some deliberate elaboration of the physical signs in relation to the left upper limb. However the material provided did not indicate that Ms Elliott had normal use of the left upper limb for activities away from the body or in the overhead position. He repeated his opinion that non-organic factors were contributing significantly and that Ms Elliott had the capacity to undertake suitable employment with her non-dominant left arm close to her body and below shoulder height. With reference to the surveillance evidence, he stated that Ms Elliott had no difficulty handling the plastic bag in the footage of January 2010. It was very difficult to evaluate Ms Elliott’s left shoulder motion on the limited DVD footage of 3 December 2009, but he considered that she did not appear to have any difficulty operating the steering wheel normally. [59]
[59] PCB 33
Submissions of the Parties
The Defendants’ Submissions
92 Senior Counsel for the defendants, in submitting that Ms Elliott’s application should be dismissed, placed particular reliance on issues of credit affecting her evidence. He emphasised that she bore the onus of proof. He submitted that she had misled doctors and employers. He also submitted that her doctors had disappeared, meaning that she had changed a number of her treating doctors. He emphasised that Ms Elliott had been able to work at the Australian Lamb Company, while receiving no treatment and there was no evidence that she had taken sick leave because of her shoulder. She had stopped work and resumed receipt of WorkCover payments. He suggested that she may have known at the time she took up the meatpacking employment that the WorkCover payments were about to cease. It was likely that the meat packing required her to use her left hand. He submitted that she had chosen not to exercise her work capacity.
The Plaintiff’s Submissions
93 Senior Counsel for Ms Elliott submitted that the case could not be determined purely on questions of credibility and referred to the Court of Appeal decision in Forder v Hutchinson.[60] That case, which concerned a negligence trial, considered the extent to which a judge could decide a matter purely on the question of the plaintiff’s credibility. There are two parts of the judgment of Nettle JA, with whom the other members of the Court agreed, that are relevant to this proceeding. The first is:
“In the fifth place, I consider that the judge was in error in confining his analysis to an assessment of the appellant’s and the respondent’s credibility. That may well have been a logical place to start, but it was by no means the place to finish. The question for the judge was not merely whether he accepted or rejected the appellant as a witness of truth, but whether the inference could properly be drawn from the whole of the evidence that the respondent’s manipulation of the appellant’s neck caused the appellant’s symptoms. It was necessary therefore for his Honour to consider the evidence which stood independently of the appellant’s testimony and then to consider it in conjunction with the appellant’s testimony.”[61]
[60] [2005] VSCA 281 at [42]
[61] paragraph [42]
94 The second passage of Nettle JA’s judgment of relevance to the present proceeding is:
“Finally, it was submitted that, in effect, come what may, the trial judge was uniquely placed to assess the credibility of the appellant, whose evidence was vital to establish his claim, and that this court is not in a position to second guess or otherwise disregard the judge’s assessment. I reject that submission too. That is not to deny the importance which ordinarily is to be attached to a trial judge’s assessment of the credibility of a witness. Nor is it to suggest that the weight to be accorded to medical opinion evidence may not depend upon an assessment of the credibility of the subject on whose report of symptoms the opinion is based. Obviously, if a medical opinion is premised on a plaintiff’s version of the facts, and the plaintiff is disbelieved, so too may be the opinion.”[62]
[62] paragraph [48]
95 Ms Elliott had received considerable medical treatment. She underwent two arthroscopies, a hydrodilatation and took heavy medication. She did undertake some physiotherapy, but it tended to aggravate her problems. The medical evidence supported the conclusion that her shoulder had considerable inflammation and adhesions. Her left shoulder was swollen.
96 While Ms Elliott’s worked at the Australian Lamb Company, she ceased taking her previous medication because it made her drowsy. She still took Nurofen. She had to work because of her financial position. She stopped work because of the pain it caused her. She then attended Dr Lewi and immediately resumed Endone, a strong narcotic based drug and commenced injection therapy, which she found unpleasant.
97 Counsel for Ms Elliott submitted that it was not unusual for a patient to change doctors when a second opinion was required or, at the suggestion of her general practitioner. Mr Mills had clearly seen a physical problem and not a mental problem, that was why he had sent her to Dr Blombery.
98 There was no indication that Ms Elliott’s depression affected her capacity to work.
99 The surveillance reports did not demonstrate that Ms Elliott had normal left arm and shoulder movement. Despite knowing of the surveillance reports, Dr Jensen still elected to give her treatment. Ms Elliott was not capable of working. The evidence of Mr Haw should be preferred over Mr Simm.
100 Counsel did not place much weight on the possibility that Ms Elliott had a complex regional pain syndrome.
Consideration of the Evidence and Submissions
What Weight is to be given to Ms Elliott’s Evidence?
101 It is significant that Ms Elliott gave a misleading account of her work injury history to obtain work at the Australian Lamb Company and to a number of doctors in the months after January 2010. She was prepared to make misleading statements in certificates required for the purposes of WorkCover benefits.
102 Ms Elliott was prepared to make untrue statements when she considered that her economic circumstances required her to do so. That affects her credit and the weight that her evidence can receive.
103 I found unconvincing those parts of Ms Elliott’s evidence oral evidence in which she was unable to recall whether she told particular doctors about her work at the Australian Lamb Company.[63]
[63] T 34-35
104 It is not determinative of Ms Elliott’s application that she worked for ten weeks meat packing. Economic necessity may cause people, with significant injury, to work, when they have no alternative way of obtaining income. Ms Elliott’s untrue and incomplete statements were associated at least in part with covering up that work.
105 There is also the question whether Ms Elliott’s failure to tell medical practitioners about her work undermines the weight that can be put on their evidence. It is not possible to know what they would have made of it in relation to her work capacity. Mr O’Brien understandably considered that it affected his assessment of her work capacity.
106 The fact that Ms Elliott was able to undertake repetitive work for some ten weeks in late 2009 and early 2010 does not mean that all the medical opinion given prior to that time is to be discarded. Thus Mr O’Brien’s opinion of 30 September 2008 was based on physical signs indicating painful restrictions of all movements of the left shoulder.
107 However, I will view Ms Elliott’s evidence with considerable caution in view of the manner in which she has been prepared to make untrue and misleading statements.
108 I will give primary consideration to evidence that stands independently of Ms Elliott’s evidence. In particular to the significance of the medical procedures that she has undergone and the views of her treating doctors, but bearing in mind that a number of medical opinions were given without knowledge of her work at the Australian Lamb Company.
The Pain and Suffering Application
109 Ms Elliott must establish that she has suffered a serious injury within the meaning of paragraph (a) of the definition in s134AB(37) of the Act, i.e a permanent serious impairment or loss of a body function.
110 Permanent means likely to last for the foreseeable future.[64]
[64] Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 639
111 Section 134AB(38)(h) requires that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise. No reliance was placed on paragraph (c) of the definition of serious injury.
112 Under s.134AB (38)(c) of the Act, an impairment or loss of body function is not to be held to be “serious” unless the consequence, in this case the pain and suffering consequence, is:
“…when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked and as being at least very considerable.”
113 The balance of the evidence before the Court does support the conclusion that Ms Elliott did suffer an injury to her upper left arm and shoulder on 22 February 2008. The injury was to the rotator cuff of the left shoulder and included capsulitis or frozen shoulder. This conclusion is supported by the opinions of Mr Mills and Mr Haw in respect of rotator cuff, and in the case of capsulitis by Dr Lewi. The MRI of April 2008 showed tendinosis, tendinitis and bursitis. There was considerable evidence of adhesions and inflammation in the left shoulder, for example, from Mr Lynch and Mr Mills.
114 Most of the medical opinion refers to selling pain and lack of movement in the left shoulder. This appears from the reports of Dr Lewi, who reported on 3 February 2011 that Ms Elliott was “still in distressing pain”, of Mr Lynch, Mr Jensen, Mr Mills and Mr Haw.
115 The effect of the balance of the medical opinions is, as Mr Mills put it in May 2009, that Ms Elliott has a significantly disabled shoulder.
116 The evidence does support the conclusion that Ms Elliott suffers considerable pain as a result of the injury she suffered. Her ongoing treatment demonstrates that. The Court of Appeal decision in Haden Engineering Pty Ltd v McKinnon[65] recognized that an assessment is required of the extent to which pain interferes with the ordinary activities of life. Ms Elliott has consistently complained of such pain – those complaints are recorded in the medical reports. She has taken strong medication for pain. On the basis of those facts, although I view Ms Elliott’s evidence with caution, I do find that she suffers significant pain in her left shoulder and upper left arm. That pain interferes with her sleep and her ability to perform tasks requiring use of her left arm.
[65] [2010] VSCA 69
117 In addition, I accept Ms Elliott’s evidence, which is supported by Mr Haw’s conclusions, concerning the swelling of her left arm after the work incident on 22 February 2008.
118 Mr Simm’s opinion stands apart from the other medical opinion in that he was unable to establish a satisfactory diagnosis of a physical condition. I prefer the other medical opinion, which in varying degrees provides explanations of pathologies explaining the arm and shoulder pain. Not all that opinion is consistent and the actual tendon tear was minimal, but most of the medical opinion supports the conclusions that I have reached.
119 I also place weight on the following factors, some of which have been referred to previously.
120 First, the medical procedures Ms Elliott has undergone. It is probable that she would only undergo arthroscopies and the hydrodilatation if she were suffering considerable pain and discomfort.
121 Second, the medication Ms Elliott has taken and currently takes, including strong narcotic based medication. This medication may have serious consequences for her.[66] Again it is probable that she would not be taking it if she were not suffering considerable pain and discomfort. The same conclusion applies to the regular injections of Xylocaine that she continues to receive from Dr Lewi.
[66] Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 629 [199]
122 Third, the consistent description of her pain and restriction on her left shoulder movement that Ms Elliott has given to medical practitioners. The consistency of that description is persuasive, despite the caution I have applied to Ms Elliott’s evidence.
123 I have considered the significance of the period of work that Ms Elliott undertook as a meat packer, her concealment of it and Ms Berger’s description of it. Ms Elliott did not seek medical treatment during that period.
124 It important that Ms Elliott had a pressing financial need to work while she did not receive WorkCover payments. The fact that she needed to resume to strong medication as soon as she finished the work indicates that she was continuing to suffer significant pain.
125 I do not consider that the fact that Ms Elliott changed doctors, or consulted new doctors on a number of occasions, is of great significance. Some of the doctors were consulted because her general practitioners wished to try various alternative forms of treatment. I have considered all of the medical evidence in reaching my conclusions.
126 I next refer to the evidence from Dr Kornan that Ms Elliott was suffering from major depression and an adjustment disorder with anxiety. Mr Healey referred to stress management, Mr Haw to a “psychological response with depression” and Mr Simm to possible “psychological factors”. Neither Mr Haw or Mr Simm are psychiatrists, so I pay primary attention to Dr Kornan’s views.
127 In Jayatilake v Toyota Corporation,[67] the Court of Appeal emphasised that the key question was whether there was a serious injury as defined. The Court has to consider the physical consequences at the date of the hearing of the application.
[67] [2008] VSCA 167
128 The effect of Dr Kornan’s report was that any inability to work that affected Ms Elliott was not caused by a psychiatric state. He indicated that psychological treatment was contraindicated, although he stated that her condition was at the upper level of chronic, mild severity.
129 There is no evidence that the psychiatric condition caused Ms Elliott pain and restriction of movement in her left shoulder, or arm, or caused her to be unable to work.
130 Ms Elliott is taking medication to assist her to sleep, but not for depression. Rather she is taking medication, including OxyContin, for pain relief.
131 The medical opinion that I have accepted leading to the conclusion that Ms Elliott has a significantly disabled left shoulder and upper left arm does not involve taking into account the psychological or psychiatric consequences of a physical injury, which is the course prohibited by s 134AB (38)(h) of the Act.
132 I do not take into account any psychological or psychiatric consequences of any physical injury.
Conclusion Concerning Pain and Suffering
133 Ms Elliott has established that she has suffered a serious injury within paragraph (c) of the definition of that term in s.134AB (37) of the Act. That serious injury is to her left shoulder and upper left arm.
134 Within the meaning of s.134AB(38)(c) of the Act the pain and suffering consequences for Ms Elliott are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and at least as being very considerable.
135 I have reached the conclusion stated in the previous paragraph because of the extent of the medical procedures and treatment Ms Elliott has required, the medication she takes, the pain she suffers and the restrictions that she experiences in every day life.
136 Ms Elliott’s impairment is a permanent serious impairment in that it is likely to last in the foreseeable future. While some of the medical reports envisaged some improvement and rehabilitation plans were proposed, there was no solid evidence that Ms Elliott’s condition would be alleviated in the foreseeable future.
Loss of Earning Capacity
137 I next consider whether the consequences to Ms Elliott of the impairment are serious and result in a loss of earning capacity of 40 per cent or more measured in the manner set out in s.134AB(38)(e) and (f) of the Act. Ms Elliott carries the onus of proof of establishing that loss.
138 Ms Elliott has to establish that after the date of the hearing the relevant loss of earning capacity will continue permanently s 134AB (38)(e)(ii).
“Without Injury” Earnings
139 Under s,134AB(38)(f) of the Act, I have to determine:
“… the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
140 Ms Elliott relied on earnings by comparable workers at Corporate Express for the year ended 30 June 2009. She proposed the figures of $43,222, or $829 weekly, with 60 per cent being $497.40, which were said to be based on an employee’s earnings for that year. Ms Elliott earned $22,104 in 2005, $33,005 in 2006 and $39,595 in 2008.[68] Her earnings for 2007 were not in evidence.
[68] Exhibit 8 and PCB 105, 110 and 4
141 The defendants pointed to further comparable employees, who earned between $41,858 in the 2009 year and $41,887 projected for the 2011 year. I consider that a figure of $42,500, which is between the extremes of earnings relied on, is an appropriate figure to adopt to most fairly reflects Ms Elliott’s earning capacity had the injury not occurred.
“After Injury” Earnings
142 The next question which s.134AB(38)(f) requires to be addressed, is what gross income Ms Elliott is earning or, is capable of earning in suitable employment, whichever is the greater, i.e. after injury earnings. The provision states:
“(f) for the purposes of paragraph (e)(ii), a worker’s loss of earning
capacity is to be measured by comparing -
(i)
the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is –
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment – as at that date, whichever is the greater.”
143 Ms Elliott has not worked or received income from personal exertion since January 2010.
144 “Suitable employment” is defined by s.5 of the Act as employment in work for which the worker is currently suited (regardless of whether that work or employment is available and is of a type or nature that is generally available in the employment market) having regard to the matters set out in the six sub- paragraphs numbered (a)(i) to (vi). Before examining those matters, I will set out the evidence that bears on the issues those paragraphs raise.
145 NabEnet Integrated Workplace Health Services carried out a vocational assessment and labour market analysis in relation to Ms Elliott in February 2010 at the request of the defendants’ lawyers.[69] NabEnet suggested three jobs for Ms Elliott. These jobs were said to involve a range of duties, which could accommodate a change of posture and which would enable her to utilise either hand. The jobs identified were, first, a transport/gatehouse clerk, a gate operator at auction premises and a car park attendant at a hospital.
[69] DCB 212
146 Ms Elliott did not tell NabEnet about her work with the Australian Lamb Company.[70]
[70] T 92
147 Ms Elliott’s evidence, including evidence under cross-examination, indicated that she had been looking for jobs and had had the help of a vocational expert.[71] The jobs included call centre jobs. She had made the short lists for particular call centre vacancies and would have tried that work if she had been successful. Similarly she would have attempted the car park attendant job if it had been offered. She stated that she could perform data entry work to a degree “but it would depend because …the medication affects my concentration.”[72] As long as she didn’t have to sit down for too long it would be okay.[73] In cross-examination she stated that she would attempt shop assistant’s work, although her skills at handling people weren’t “the best”.[74]
[71] T 84-85
[72] T 103 cf 79
[73] T 103
[74] T 79 and 107
148 Ms Elliott had completed a beginner’s computer course in 2010,[75] apparently as part of a rehabilitation program. Ms Elliott has not applied for a job, since finishing work with the Australian Lamb Company because she stated because her body would not allow it.
[75] T 76
149 Ms Elliott case was that she had no work capacity and that was likely to exist for the foreseeable future. Alternatively, if she did have a capacity to return to work, it was on a part-time basis for ten hours a week as suggested by Dr Lewi. Dr Lewi’s suggestion had to be considered against his guarded opinion on the prospects of a successful rehabilitation.
150 A number of doctors considered that Ms Elliott may have some work capacity. They included Dr Pinto and Dr Lewi, her general practitioners. Other doctors such as Mr Haw and originally Mr O’Brien, considered that she did not have a work capacity.
151 The defendants relied on Dr Lewi’s suggestion of a ten hour a week return to work trial.
152 I have considered the matters referred to in the definition of “suitable employment” in s.5 of the Act. The sub-paragraphs which appear most relevant are (a)(i), (ii), (iii) and (vi); sub-paragraphs (iv) and (v) appear less relevant.
153 In respect of the matter in sub-paragraph (i), I have described the nature of Ms Elliott’s incapacity above. That incapacity has an effect on the range of jobs that she can undertake. Most of the medical information before the Court suggests a limitation on Ms Elliott’s ability to perform work, but her general practitioner suggests a return to work trial.
154 So far as the matter in sub-paragraph (ii) is concerned Ms Elliott’s pre- injury employment was manual work in a warehouse.
155 So far as the matter in sub-paragraph (iii) is concerned, Ms Elliott is aged forty. She was educated to Year 9, but has had regular work since leaving school, doing mainly manual work until the date of her injury. She has readily obtained employment in the past.
156 So far as the matter in sub-paragraph (vi) is concerned, there are no occupational rehabilitation services being provided to Ms Elliott.
157 I have had regard to s.134AB(19)(b), which provides that Ms Elliott, for the purposes of proving the relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment, including alternative or further or additional employment and the extent of such inability.
158 Ms Elliott has not established that any retraining or further rehabilitation, would not assist her to obtain suitable employment.
159 I base that conclusion on the fact that Ms Elliott was able to undertake significant part time work as a computer data entry employee and perform office work at Corporate Express in 2008 as part of a return to work plan for up to 25 hours a week, when ordinary weekly hours were 37.5. She left that position to take the redundancy package. I also take into account Dr Lewi’s return to work suggestion, although I note its guarded terms. In addition Ms Elliott has been considered for call centre work and was prepared to trial that work. I note that Mr Jensen, in particular, considered that it was up to Ms Elliott whether her condition improved.
160 I find that at the date of the hearing and decision that Ms Elliott at least has the capacity to undertake the trial return to work suggested by Dr Lewi. Her earnings from ten hours work a week based on Corporate Express pay rates, would amount to about $11,333 gross per annum would satisfy the loss of earning capacity test. In some of the positions suggested by NabEnet that pay rate might be less.
161 However, Ms Elliott has not established that ten hours a week will be the limit of her working capacity permanently.
162 I have had regard to the matters contained in s.134AB(38)(g) of the Act. I do not consider that Ms Elliott has established that she would not have any working capacity for any employment including alternative, further or additional employment after rehabilitation or retraining which, if exercised, would result in her earning more than 60 per cent of gross income from personal exertion, as determined in accordance with s.134AB (38) (f) of the Act had the injury not occurred.
163 I refer again to Ms Elliott’s data entry and office work for Corporate Express, her willingness to attempt the jobs suggested in the NabEnet report and Dr Lewi’s suggestion of a return to work trial.
164 Ms Elliott has many years of her potential working life ahead. She has not established that she will after the date of the decision and the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more: s134AB (38)(ii).
165 I am not persuaded that the limit of Ms Elliott’s earning capacity in suitable employment for at least the foreseeable future will be only ten hours.
166 The fact that I have found that, she has established for the purposes of her pain and suffering application, that she has suffered a permanent serious impairment, is not inconsistent with the finding I have made in respect of her loss of earning capacity. For the reasons I have given, I consider that Ms Elliott has not established the quite separate requirement – that she will continue permanently to have the required loss of earning capacity.
Conclusion concerning Loss of Earning Capacity
167 Because of the conclusions I have reached I am not satisfied that Ms Elliott’s impairment has resulted in loss of earning capacity consequences which are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable (s.134AB(38)(c)).
Conclusion
168 Pursuant to s.134AB(16)(b) of the Act, I grant Ms Elliott leave to bring proceedings at common law to recover damages for pain and suffering arising out of and in the course of her employment with Corporate Express Australia Limited and occurring after 20 October 1999.
169 I refuse Ms Elliott leave to bring proceedings in respect of loss of earning capacity.
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