Elliott v Victorian WorkCover Authority
[2012] VCC 1805
•26 November 2012
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01822
| LYNETTE KATHRYN ELLIOTT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 12 and 13 November 2012 | |
DATE OF JUDGMENT: | 26 November 2012 | |
CASE MAY BE CITED AS: | Elliott v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1805 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left shoulder
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with Mr T J Seccull | Slater & Gordon |
| For the Defendant | Mr P B Jens with Mr S A Smith | Herbert Geer |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” in ss(37) of s134AB of the Accident Compensation Act 1985 (“the Act”); that is, “permanent serious impairment or loss of a body function”. The body function relied upon by the plaintiff is the left shoulder.
2 The claim by the plaintiff is instituted by an Originating Motion dated 18 April 2012 by which the plaintiff seeks leave from the Court, pursuant to ss(16)(b) of the Act, to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
3 Mr J A Jordan SC, with Mr T J Seccull of Counsel, appeared on behalf of the plaintiff. Mr P B Jens and Mr S A Smith, both of Counsel, appeared on behalf of the defendant.
The Evidence
4 The following evidence was adduced during the hearing:
· The plaintiff swore two affidavits and gave sworn evidence, and was cross-examined. The plaintiff’s first affidavit was sworn on 6 December 2011.[1] The plaintiff’s second affidavit was sworn on 28 September 2012.[2]
· The plaintiff filed with the Court a number of medical reports. Pages 6 to 127A inclusive of the Plaintiff’s Court Book (“PCB”) were admitted into evidence as Exhibit A.
· The defendant tendered a number of medical reports comprised in its Court Book (“DCB”) which I marked as Exhibit 1.
[1]PCB 6-13
[2]PCB 13A – 13D
5 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
The Central Issue
6 Before turning to the medical evidence and to the plaintiff’s evidence, it is important to understand that the issue which I must decide in this application is a relatively narrow one, having regard to the way the hearing of the application was conducted by the parties.
7 The issue which I must decide arises in this way. The plaintiff, who is now fifty-nine years of age, was employed by a company that operated a holiday resort or retreat known as “Peppers Springs Retreat” in the Hepburn area. She had been employed there since 27 October 2000 as a part-time housekeeper and cleaner. Her hours of work varied. On occasions, she worked up to thirty-six hours per week but generally worked about thirty hours per week.[3]
[3]PCB 7
8 The plaintiff deposed in her first affidavit to having suffered an injury to her left shoulder during an incident which occurred on or about 15 July 2005. On that day, in the course of her work, the plaintiff was required to clean a spa bath which was fitted within a deck at the Retreat, and for that purpose she had to get into the spa bath, where she slipped and injured her shoulder. She reported the incident to her manager, one, Damian Sillars, and completed an Incident Report.[4] (“the 2005 injury”)
[4]PCB 7, and see also WorkCover Worker’s Claim Form at DCB 1-3 inclusive
9 The plaintiff was off work for a couple of months and had medical treatment, which I shall later discuss. In about December 2005, she returned to work, initially on reduced hours and light duties, but eventually she returned to her normal duties. In about mid-2006, in circumstances unrelated to this application, the plaintiff changed her job but continued doing similar work albeit on reduced hours, at another establishment, also in the Hepburn area.
10 The plaintiff eventually moved from the second job to a third relevant job at a hotel in the Ballarat area known as the “Red Lion Hotel”. There, she also performed similar work. On or about 12 February 2008 during the course of her work at the Red Lion Hotel, the plaintiff suffered a further injury to her left shoulder (“the 2008 injury”).
11 The plaintiff does not have a serious injury application on foot in relation to the 2008 injury. The medical evidence shows that the injury that the plaintiff sustained at the time of the 2008 injury was, at the very least, an aggravation of her pre-existing 2005 injury.
12 The plaintiff seeks a finding from the Court that the 2005 injury was a “serious injury” within the meaning of that expression in the Act to enable her to commence a proceeding. Having regard to all of the circumstances and, the aggravating injury in February of 2008, this application raises issues similar to the issues raised in A G Staff Pty Ltd & Anor v Stefan Filipowicz.[5]
[5][2012] VSCA 60
13 The plaintiff bears the onus of proving that the injury sustained in 2005 was a “serious injury” and, whether or not the plaintiff succeeds in discharging the onus which she bears depends upon an analysis of all of the evidence in this application.
14 For the reasons that follow, I have concluded that the plaintiff has not discharged the onus of proof that she bears to establish that the 2005 injury was a “serious injury”. In my judgment, on all of the evidence available, it is not possible to attribute the pain and suffering consequences which the plaintiff presently suffers and her ongoing impairment, in terms of loss of income and loss of earning capacity to the 2005 injury. On the balance of probabilities they can properly be attributed as consequences of the 2008 injury.
The Statutory Scheme
15 The application is brought pursuant to s134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in sub-paragraph (37)(a) of s134AB of the Act, which requires the plaintiff to prove she has suffered a “permanent serious impairment or loss of a body function”.
16 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[6]
[6]S.134AB(1) and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury, and the impairment, must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[7]
[7]Barwon Spinners at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a) and subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity. To arrive at a loss of earning capacity of 40 per cent or more, the plaintiff must compare her income from personal exertion prior to suffering injury with the gross income which she is now able to earn from suitable employment or, capable of earning from suitable employment. “Suitable employment” is defined in s.5 of the Act and was amended to operate from 1 July 2010 regardless of when the injury occurred.
(d) Subsection (38)(c) provides the impairment must have consequences in relation to “pain and suffering” and “loss of earning capacity” which, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and, as being at least “very considerable”.
(e) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of an application based on paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more both at the date of the hearing and permanently.
(g) Subsection (38)(j) provides the assessment of “serious injury” is to be made at the time of the hearing of the application.
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately.
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future and, whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c).
(j) Where it is alleged in an application the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[8]
(k) Where it is alleged in an application the plaintiff suffered from a serious injury which was followed some time later by an aggravation of that injury I must identify the injury the subject of the application and identify the pain and suffering consequences and the plaintiff’s impairment that may be attributed to the injury the subject of the claim as distinct from the aggravation of that injury which for the purposes of the Act is itself treated as a separate injury. See AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[9]
[8][1994] 1 VR 436
[9][2012] VSCA 60 and the definition of “injury” in s 5 of the Act
17 I have applied the principles set forth therein in reaching my conclusions in this application.
The Plaintiff’s Affidavit Material
18 The plaintiff deposed that, following the 2005 injury, she saw her general practitioner, Dr Chris Ryan, who gave her a Certificate to be off work. Dr Ryan arranged for an ultrasound to be carried out to the left shoulder and gave the plaintiff a cortisone injection into the left shoulder.[10] The plaintiff deposed that her treatment in 2005 otherwise included physiotherapy and chiropractic treatment. Dr Ryan also referred the plaintiff to an orthopaedic surgeon, Mr John Nelson. Mr Nelson also gave her a cortisone injection into the left shoulder.[11]
[10]PCB 8
[11]PCB 8
19 The plaintiff deposed that she was off work because of the 2005 injury for about three months and then she was able to return to work on light duties, restricting the use of her left arm and avoiding heavy lifting. On 5 December 2005, she was declared fit for normal duties by Dr Ryan but still with restrictions to avoid heavy lifting. She deposed that her left shoulder was still not one hundred per cent and was still giving her problems.[12] The Certificate of Dr Ryan included:
“Not suited to heavy lifting (>20 kg).”
[12]PCB 8 and PCB 171
20 When the plaintiff left her employment at the Peppers Springs Retreat in mid-2006, she started work the next day as a cleaner and housekeeper at another retreat known as “Bellinzona”. She said she worked there for about twelve months “but struggled”. She said:
“… My left shoulder had never come good and the work made my left shoulder pain worse. My left shoulder was also painful having to drive from home in Clunes to Hepburn Springs and back each day. I was also developing similar pain in my right shoulder which I believe was brought on by over using my right arm in trying to avoid using my left arm.”[13]
[13]PCB 8
21 The plaintiff deposed that in August-September of 2007, she commenced part-time work as a housekeeper at the Red Lion Hotel in Ballarat. She said that with that job, she was able to stay with her mother in Ballarat overnight and was able to avoid having to drive a long distance each day by car to work.[14] The plaintiff deposed to hurting her left shoulder again in an incident at the Red Lion Hotel on or about 11 February 2008 when she was pulling a queen-sized bed away from the wall in order to clean behind it.[15] After about two weeks of waiting to see Dr Ryan, he prescribed painkilling medication for the plaintiff and arranged for her to have an ultrasound again. He then referred her to an orthopaedic surgeon, Mr Paul Plank, in Ballarat.[16] The plaintiff has not worked since.
[14]PCB 8
[15]PCB 8
[16]PCB 9
22 The plaintiff deposes that she continues to do exercises that were shown to her by a physiotherapist and she takes between four and eight Panadol tablets daily for pain relief.[17]
[17]PCB 9
23 Since the 2008 injury, the plaintiff has undertaken various courses in Food Handling and Responsible Serving of Alcohol, and a Responsible Gaming Certificate organised through WorkCover consultants.[18] The plaintiff did these courses in an attempt to retrain herself for other work that she might be physically capable of.
[18]PCB 10
24 In her first affidavit, in paragraph 7, the plaintiff deals with the impact of the injury on her lifestyle and social, recreation and domestic capacity. What the plaintiff sets out in that paragraph is all expressed in the present tense and makes no attempt to differentiate between the consequences to the plaintiff flowing from the 2005 injury from the consequences to her that may have flowed from the 2008 injury.[19]
[19]PCB 10
25 The plaintiff deposes that the injury to her left shoulder has impacted on her lifestyle and living activities and quality and enjoyment of life. She says that she has pain and restriction of movement in the left shoulder and the pain in her left shoulder is pretty much there all of the time, although the intensity of the pain fluctuates and can be aggravated by activities involving the use of her left arm. She deposes that some days are better or worse than others. The plaintiff deposes that activities involving using or lifting of her left arm, extending her left arm or holding things in her left hand are difficult for her due to the limit of movement and the pain in her left shoulder, and make the pain in her left shoulder worse. She says that routine everyday tasks are now difficult for her, including washing her hair or putting on her bra and getting dressed. She says she often has to rely on others. She says she cannot do the housework properly; she cannot wash dishes, prepare meals or do light cleaning, such as dusting or vacuuming, or mopping or cleaning the shower and bath. She says she no longer hangs clothes on the clothesline because it is too difficult and painful for her to reach up with her left arm. She says she has difficulty sleeping and it is difficult and painful for her to lie on her left side. The plaintiff deposed that prior to suffering the injury to her left shoulder, she used to love working in her garden, digging, planting, weeding and cutting things back, and she says she can no longer do that work other than for light weeding. She says she misses her work as a cleaner and housekeeper, particularly the social contact that she enjoyed as a result of it. She cannot drive the car like she used to because of a painful left shoulder, and she says that she is no longer able to hold her young grandchildren because it is too painful and difficult for her.[20]
[20]PCB 11
26 At paragraph 8 of her first affidavit, the plaintiff deposes as to the impact of the injury on her employment capacity. The plaintiff deposes that she left school after Year 7 and has had no further education or formal training or qualifications since then. After leaving school, she worked as a laundry hand and did factory work, but thereafter, was engaged full-time as a housewife and mother until she commenced work at the Peppers Springs Retreat, and since then, her work experience has been limited to cleaning and housekeeping-type work. She has no clerical, administrative or office skills or experience, and she has no computer skills.[21] She says that she has not returned to any work since the Red Lion Hotel on 13 February 2008 and that her capacity for work has been greatly reduced. She deposes:
“I believe I am now unable to perform work involving heavier lifting, prolonged and repetitive use of my left arm, forceful use of my left arm, pushing and pulling type movements and actions and work requiring me to reach overhead. I believe I am incapacitated for the type of work I have done up until now, that is, factory and process work and work as a cleaner and housekeeper.”[22]
[21]PCB 12
[22]PCB 12
27 In her supplementary affidavit, the plaintiff deposes that her left shoulder was never symptom-free after she injured it on 15 July 2005. She said that there was a flare-up of the injury while she was at the Bellinzona job in 2006, and she went on to say:
“… On many occasions either at work or at home I would have flare ups like this doing something or other that could be quite simple. Examples are driving or using my arm on a basic day to day task like hanging out washing. The Bellinzona incident I can now recall was one of these flare ups. It is not right to call it a re-injury as that seems to assume my left shoulder had recovered which it never did and to this day has not recovered. At no point did I ever get back to the stage where I could perform full, and unrestricted, manual labour such as cleaning.”[23]
[23]PCB 13B
28 The plaintiff deposed that at the Red Lion Hotel job she was only working two hours per day, usually between 10.00 am and 12 noon, and only three or four days per week. She deposed:
“… That was about my limit providing I stayed with my mother in Ballarat and avoided the 40 minute drive from Clunes by sleeping at her place the night before my rostered day on.”[24]
[24]PCB 13B
29 The plaintiff went on to say:
“… From 17 July 2005 it has never been a situation where I could work ‘without any problem’ from my left shoulder. I always had pain which might change in severity and I always had to over use the right arm.”[25]
[25]PCB 13C
30 So far as present treatment is concerned, the plaintiff deposes that she continues to take mild painkillers that she acquires over-the-counter, and she continues to carry out exercises that were shown to her in 2005 by physiotherapist, Cameron Snowden. The plaintiff says that she avoids putting strain on her shoulders if she can, and her left shoulder is still worse in terms of pain and disability and she needs to avoid strenuous, heavy and repetitive tasks, but she says even with these limitations, the pain is constant and she is not capable of any unskilled manual employment.[26]
[26]PCB 13D
31 I observed the plaintiff giving her evidence. She struck me as a truthful witness who was not given to exaggeration or to overstating her case. It is obvious from her work history and her attempts to find suitable work notwithstanding her ongoing physical difficulties that she has been and remains a person motivated to work hard. I generally accept her evidence. Unfortunately for her, I have concluded that her application must fail because of the statutory requirements of the Act. In my judgment the plaintiff has not satisfied the legal burden of proof that she bears.
The Medical Evidence
32 The plaintiff’s general practitioner, Dr Chris Ryan, has provided a number of medical reports. On 5 November 2009, he reported to the defendant that the plaintiff first presented to him with an injury to her left shoulder on 19 July 2005. His initial diagnosis was that of a shoulder muscle strain, for which he advised the plaintiff to rest her shoulder for two weeks. However, on review two weeks later, there was no improvement and Dr Ryan ordered an ultrasound, which showed some inflammation of her supraspinatus tendon, but no tear. He opined:
“… Her condition improved slowly and she was able to return to work even though she was still aware of some discomfort. After 5/12/2005 I saw Mrs Elliott regarding her left shoulder next on 24/11/2006 when she presented after re-injuring it at a different job.”[27]
[27]PCB 14
33 The reference to the further re-injuring was a reference to what had occurred whilst the plaintiff was employed at Bellinzona in 2006.
34 Dr Ryan then reported attending upon the plaintiff again on 29 February 2008 when she complained of pain in both shoulders after injuring her shoulders at work. Dr Ryan reported that this was the first record that he had of complaints relating to her right shoulder. The plaintiff told him that she had injured her shoulders whilst moving a bed at work at the Red Lion Hotel on 11 February 2008.[28] His report concludes:
“She currently has reduced range of shoulder movement and pain on extremes of movement. Her current symptoms are better than on 15/7/2005 when she had increased pain and on 11/2/2008 when she had increased pain and reduced range of movement.”[29]
[28]PCB 14
[29]PCB 14
35 Dr Ryan provided two further medical reports to the plaintiff’s solicitors on 16 March 2011, and more recently on 28 March 2012. Each report is in identical terms. Those reports conclude as follows:
“I believe that her current condition has stabilised and that she will be left with ongoing impairment and will not be able to return to her pre-injury duties. She may be suited to some suitable part time work which does not involve any heavy lifting greater than 5kg however she will be limited by her age, past educational and work history. There is the possibility of long-term gradual deterioration in her condition.”[30]
[30]PCB 15 and PCB 16
36 There is no evidence from Dr Ryan that attempts to disentangle or separate out the pain and suffering consequences to the plaintiff or her ongoing impairment consequent upon either the 2005 injury or the 2008 injury. All the evidence is as to the plaintiff’s current medical condition which in my view can really only be medically attributable to the 2008 injury.
37 The defendant tendered the medical records kept by Dr Ryan.[31] Those notes reveal that the plaintiff attended upon Dr Ryan after the 2005 injury on 19 July 2005 and then on another date about two weeks later, and then again on 10 October 2005, where Dr Ryan noted that there had been slow improvement in the left shoulder and he gave a certificate for the plaintiff to be off work and ordered physiotherapy. Two weeks later, on 24 October 2005, he noted that the left shoulder was stable and that physiotherapy was no longer of benefit. By 5 December 2005, Dr Ryan noted that the left shoulder problem had improved and that the plaintiff could go back to full-time duties, restricted to lifting no greater than 20 kilograms. The defendant relies upon this limited record of complaint and treatment for the 2005 injury and refers to the fact that Dr Ryan did not see the plaintiff again for any complaint about her left shoulder until 24 November 2006, which was the flare-up or aggravation related to the Bellinzona incident.[32]
[31]DCB 53-82 inclusive
[32]PCB 78
38 I accept the defendant’s submission the evidence shows a limited record of complaint and treatment for the 2005 injury.
39 According to the records of Dr Ryan, he next saw the plaintiff relating to complaints about her left shoulder after the 2008 injury. On 29 February 2008, Dr Ryan recorded in his notes:
“hurt shoulders again at work moving bed on 11/2 and quit work a few days later as not enough hours and now increased shoulde[r] pain and reduced rom [range of movement]
Ext[ension] left shoulder reduced [and] lateral flexion to 30 degrees and right to 80 deg[rees].”[33]
(sic)
[33]DCB 71
40 The actions recorded are diagnostic imaging requested of both shoulders and an orthopaedic referral.”[34]
[34]DCB 71
41 The defendant also referred to the medical records of the physiotherapist, Cameron Snowden.[35] Those records indicate that the plaintiff commenced to see Mr Snowden for complaints relating to her left shoulder in August 2005, but there has been no further treatment since 20 October 2005. Mr Snowden recorded that the plaintiff ceased physiotherapy because it was the opinion of a Mr Scott, orthopaedic surgeon, who saw the plaintiff for the defendant, that physiotherapy could be aggravating her condition.[36]
[35]PCB 173-177
[36]PCB 177
42 The plaintiff deposed in her affidavits and gave evidence that she also had chiropractic treatment. The record of her chiropractor went into evidence and it shows that she first saw a chiropractor on 26 July 2005. She had six visits, and the last visit was on 26 May 2009. Following the 2005 injury, the plaintiff had two sessions: one in July 2005 and the other on 2 August 2005.[37]
[37]PCB 172
43 Dr Ryan referred the plaintiff to the orthopaedic surgeon, Mr John Nelson, in September 2005. Mr Nelson provided a report to Dr Ryan following his initial consultation.[38] However, he provided a more lengthy report to the plaintiff’s solicitors on 17 March 2011. It is convenient to refer to that report.[39]
[38]PCB 17
[39]PCB 18
44 Mr Nelson first saw the plaintiff on 14 September 2005. She reported to him at that time the circumstances of the incident that had occurred on 15 July 2005 and she told him that she had seen a physiotherapist for treatment and was having some local treatment and exercise, and she told him that for her own reasons she had been reluctant to take medication. Mr Nelson reported that he had been told by the plaintiff that pain had persisted, mainly of a generalised nature, associated with increasing functional stiffness. The plaintiff had also sought chiropractic treatment without benefit.[40] By the time the plaintiff had visited Mr Nelson, she told him that she had returned to work on modified duties. An ultrasound which had previously been carried out did not identify any local pathology of significance with the shoulder joint. After his first consultation, Mr Nelson opined as follows:
“Unfortunately I felt that this patient was developing a frozen shoulder (adhesive capsulitis). I felt that at two months it was still worth trying an intra-articular steroid injection and continuing with her exercise. She was somewhat reluctant to have the injection but I explained that the only other options was a hydro-dilatation and manipulation under general anaesthetic, and she therefore agreed.”[41]
[40]PCB 18
[41]PCB 18
45 Mr Nelson gave an intra-articular injection into the plaintiff’s left shoulder and prescribed anti-inflammatory medication and recommended a physiotherapist for some exercise and stretches. He reviewed her fourteen days later, on 28 September 2005, and he recorded:
“… when I was presently surprised to hear that her shoulder had improved dramatically. She was keen to get back to work, and I made some recommendations to reduce her load limit to 10 kilograms, and avoid repetitive overhead use.
There were no signs of her previous frozen shoulder and I was hoping at that stage the risk of recurrence was small. However this is a notoriously unpredictable problem and I suggest that if she had any further cause for concern I would be happy to see her again.”[42]
[42]PCB 19
46 In my opinion the evidence shows that by the end of 2005 the plaintiff had made a reasonably good recovery from the 2005 injury and was able to return to work.
47 The plaintiff did return to work, albeit on restricted duties and on some reduced hours, and she changed her employment, as the history indicates. She was referred to Mr Paul Plank after the aggravation of the shoulder injury in February of 2008. Mr Plank gave a report to the defendant on 19 March 2008 where he said, inter alia, as follows:
“As you are aware, Lynette is a 54-year-old lady who sustained an injury to both of her shoulders in July 2005 after slipping at work whilst employed at The Springs Retreat. Since then she is having increasing difficulties with pain and stiffness in both of her shoulders. Despite intensive physiotherapy as well as chiropractic treatments and a number of cortisone injections, her symptoms still persist.
Examination findings confirm evidence of frozen shoulder involving both shoulders. At the moment her left shoulder is the more symptomatic of the two and I have recommended an arthroscopy and capsular release to address this. … .”[43]
[43]PCB 20
48 The defendant submits that the history recorded by Mr Plank is wrong. I think that criticism is well made. The plaintiff had not had “ongoing physiotherapy”, as Mr Plank reported, and the chiropractic treatment was virtually non-existent. Importantly, Mr Plank does not refer to the 2008 injury, which triggered his being asked to see her, at all.
49 The plaintiff relies upon a report obtained for medico-legal purposes from Mr W Huffam, orthopaedic surgeon. Mr Huffam opined that the plaintiff’s current condition –
“… is compatible with her having sustained primary injury to the left shoulder on 15.7.2005 and a secondary injury to this shoulder with aggravation on 11.2.2008 … .”[44]
[44]PCB 26
50 He further opined that the injury in the course of her work at the Red Lion Hotel on 11 February 2008 would not have been a primary injury and may have been an aggravation of a previous injury to this shoulder. He considered that the plaintiff suffered a permanent total incapacity.[45]
[45]PCB 27
51 In a further report of 23 August 2012, Mr Huffam did not change his opinion.[46] The problem for the plaintiff with this evidence is that it makes clear that the 2008 injury was at the very least an aggravation of the 2005 injury. The definition of ‘injury’ in s 5 of the Act, includes an aggravation. For the plaintiff to succeed in her application she must show that the 2005 injury is itself a “serious injury”. In my judgment the evidence does not permit of such a finding.
[46]PCB 29
52 The plaintiff relies upon a medico-legal report of Dr David Middleton, an occupational health and rehabilitation consultant, of 12 April 2012.[47]
[47]PCB 34
53 Dr Middleton also does not attempt to apportion or disentangle the pain and suffering consequences or the impairment consequences for the plaintiff as between the 2005 injury and the 2008 injury. It is clear from his report that he regards the plaintiff as being permanently incapacitated for full-time employment but the opinion does not attribute this impairment to the 2005 injury alone.
54 Mr Peter Scott, a consultant surgeon, saw the plaintiff on behalf of the defendant after the 2005 injury, and also after the 2008 injury. In his report of 8 May 2008, Mr Scott advised that liability should be accepted for the plaintiff’s left shoulder problem, as previously detailed –
“… and the condition has slowly deteriorated with her subsequent employment including the Belenzona (sic) Guest House and the Red Lion Hotel/Motel.”[48]
[48]PCB 81
55 He went on to say:
“The left shoulder condition represents a slow deterioration of a problem, which became apparent under compensable circumstances since July 2005, and aggravated while working at the Red Lion Hotel/Motel but not apparently while working at the Belenzona (sic) Guest House.”[49]
[49]PCB 81
56 Mr Scott thought that the plaintiff was unsuited to her pre-accident employment but suitable for some light work. But again, the opinion does not attribute this impairment to the 2005 injury.
57 Mr Paul Kierce, an orthopaedic consultant, saw the plaintiff for medico-legal purposes on behalf of the defendant on two occasions, the first of which was 27 October 2010. Mr Kierce opined that the plaintiff was suffering bilateral adhesive capsulitis and he initially opined that her condition was attributable to the injury she sustained on 15 July 2005, and he added:
“It would appear likely that she had re-aggravated the pre-existing adhesive capsulitis of the left shoulder in the course of her work at the Red Lion Motel in February 2008.”[50]
[50]PCB 103
58 Mr Kierce was asked to examine the medical notes of Dr Ryan and the report of Mr John Nelson, and in a further report of 13 August 2012, he opined as follows:
“Perusal of the general practitioner notes certainly reveals no evidence of ongoing treatment under his supervision at any rate over the period from 26th August 2005 when he had prescribed a steroid injection, which was probably for the shoulder although I am not sure of that, but then there is no mention of the shoulder trouble until the 2008 injury at the Red Lion Hotel. She had informed me that she had been receiving ongoing physiotherapy treatment ever since the 2005 injury.
I had previously already received the ultrasound studies of 2005 and 2008. These studies certainly did not give a definite diagnosis of any definitive pathology in the left shoulder joint but I have to say that ultrasound studies of the shoulder are unreliable particularly with matters such as adhesive capsulitis.”[51]
[51]PCB 107-108
59 He went on to say:
“This further information causes me to change my view regarding the causation of the left shoulder problems for which I had seen her on the 27th October 2010. In my opinion I would attribute the adhesive capsulitis that I diagnosed on clinical grounds on that date to be related to the incident in 2008 at the Red Lion Hotel where she had hurt her shoulder lifting a bed.”[52]
[52]PCB 108
60 Mr Timothy Gale, another orthopaedic surgeon, has also seen the plaintiff for medico-legal purposes at the request of the defendant. He first reported on 16 May 2011.[53] As to apportionment of the plaintiff’s left shoulder condition at that time, Mr Gale attributed fifty per cent to the 2005 injury and the remainder to the 2008 injury. He said this:
“In respect of the left shoulder injury, I believe apportionment is reasonable as the worker’s current left shoulder condition is not solely a consequence of effects of the fall under consideration. In this regard your attention is drawn to my comments earlier in this report concerning Mr Nelson’s observations of the left shoulder girdle in September 2005, namely that he had initially diagnosed a frozen shoulder syndrome but on review two weeks later after a cortisone injection into the shoulder it appeared that there were no significant features of a frozen shoulder syndrome persisting. The worker did however describe over subsequent years some mild ongoing shoulder symptoms worse after a further left shoulder injury with another employer in February 2008. It is my view that it would be reasonable to consider that 50% of the current impairment of the left shoulder might relate to effects of the subject accident, the balance being due to either the second incident of injury or the diabetes condition, as it is known that women with diabetes have an increased association with the development of a spontaneous frozen shoulder syndrome.”[54]
[53]PCB 111
[54]PCB 115
61 Dr Gale saw the plaintiff for a further medico-legal assessment on 3 July this year and he provided a report of that date.[55] Once again, Mr Gale dealt with the question of assessment and opinion, and he said as follows:
[55]PCB 120
“The worker suffered an injury to the left shoulder girdle in a fall at work in August 2005, and this was probably a soft tissue injury, without any demonstrable rotator cuff tear demonstrated on ultrasound, but no more comprehensive imaging has been carried out to rule out other significant soft tissue shoulder injuries that might have occurred. The worker has continued to have left shoulder symptoms since that incident. The worker has claimed that she has required regular medical treatment from her family doctor, Dr Ryan, but this seems not supported by documentation from this medical practitioner.
The worker had returned to work, after being off work for about two months after that initial injury, and she continued to work in housekeeping duties until a further incident with another employer in February 2008, and the worker has had increasing shoulder symptoms since then, but again, has not had any significant medical treatment.
It is possible that a reasonably minor soft tissue strain injury to the left shoulder girdle has been followed by the development of an adhesive capsulitis (AKA frozen shoulder syndrome), and she would be predisposed to such secondary pathology in view of her build, previous cardiac problems, and her diabetic state.
It is probable that the worker did have some minor ongoing left shoulder symptoms that didn’t require long-term treatment after the incident in 2005, considering her probable subsequent long-term treatment and also her work history, prior to further injury in 2008 which she claims that WorkCover have deemed to be an aggravation of the original injury in 2005, and not a separate injury. Based on information available to me, I am unable to make a definite judgment as to whether the secondary injury was a new injury or an aggravation of an earlier injury, but I inclined towards the view that the second injury was essentially a new injury in view of her work history and lack of need for ongoing medical treatment subsequent to the injury of 2005. My ability to assess this issue of apportionment is compromised by a lack of subsequent comprehensive imaging investigations.
I am of the opinion that the majority of the workers’ (sic) current shoulder symptoms result from the injury in 2008, with minimal contribution from the incident in 2005.”[56]
[56]PCB 122-123
62 In my opinion, of the various medical opinions tendered in evidence on this application, both Mr Kierce and Mr Gale have analysed the pain and suffering consequences and the plaintiff’s subsequent impairment in the most detail. Both have endeavoured to give an opinion that best explains the mechanism of the present injury to the plaintiff’s left shoulder and the resultant consequences to her. I prefer the evidence of Mr Kierce and Mr Gale over the evidence from the other medical specialists. I find the probability is that the plaintiff’s current pain and suffering consequences and impairment result from the 2008 injury and not the injury she sustained in 2005.
63 The defendant submits that the plaintiff has not discharged the onus which she bears of establishing on the available evidence that the injury she sustained in 2005 is a serious injury. The defendant submits that the evidence does not show that the plaintiff suffered pain and suffering consequences from the 2005 injury that may fairly be described as being more than “significant” or “marked” and, as being at least “very considerable”. I accept that submission.
64 The defendant points to the fact that the plaintiff attended upon Dr Ryan on three or four occasions following the 2005 injury and had limited physiotherapy and limited chiropractic treatment. Even accepting that the plaintiff takes Panadol medication daily, the defendant argues that this is not sufficient evidence to show pain and suffering consequences of the level necessary under the provisions of the Act.
65 The defendant points to the fact that there is no treatment from Dr Ryan in relation to the injury sustained in 2005 after December of 2005, apart from a consultation after a flare-up or aggravation in November of 2006. The defendant points to the medical records and argues that Dr Ryan did not see the plaintiff again until about 13 February 2008, which followed the 2008 injury.
66 The defendant’s case is, that when all of the medical evidence is examined, the pain and suffering consequences and the continued impairment in terms of loss of earnings and loss of earning capacity are all attributable to the 2008 injury. The defendant submits the plaintiff has not discharged the legal obligation which she has of disentangling the consequences to her from the 2008 injury. The defendant points to the definition of “injury” in s5 of the Act and the fact that an aggravation of a pre-existing injury is, itself, an injury. The defendant argues that, applying the principles in Filipowicz,[57] the plaintiff cannot succeed in this action.
[57]ibid
67 The defendant relies upon the medical reports of Doctors Kierce and Gale as showing that, in all probability, the pain and suffering consequences and the impairment from which the plaintiff continues to suffer can all be traced back to the 2008 aggravation injury and not the 2005 initial injury.
68 The plaintiff’s case is that, after the occurrence of the 2005 injury, the plaintiff was on a downhill slope with increasing pain and suffering consequences and a reducing capacity for employment. The plaintiff argues that, even though she had limited treatment from Dr Ryan, and also from the physiotherapist and the chiropractor after suffering the 2005 injury, she nonetheless continued to suffer pain and she continued to suffer from impairment because she was working reduced hours even after she returned to work in December 2005. However, in my judgment the evidence of the plaintiff’s pain and suffering consequences and impairment that may be attributed to either the 2005 injury or the 2008 injury has not been disentangled in such a way as to permit a finding that enables the plaintiff to succeed in her application.
69 I am not satisfied that the plaintiff has discharged the onus of proof which she bears.
70 I find that the plaintiff did suffer an injury to her left shoulder in an incident in the spa when she was working at the Peppers Springs Retreat on or about 15 July 2005. I find that the plaintiff did suffer pain and limitation of movement in the left shoulder consequent upon sustaining the 2005 injury for which she sought and received treatment in 2005, and was certified to return to work in December 2005. The plaintiff was warned not to lift above her head or above shoulder height and not to lift weights greater than 20 kilograms. However, the plaintiff did return to work following the 2005 injury, eventually on a full-time basis, and she was able to carry out her work at Bellinzona, and later at the Red Lion Hotel. She was medicated by taking daily doses of Panadol.
71 I find that the plaintiff re-injured her left shoulder in an incident that occurred whilst she was moving a bed at the Red Lion Hotel on or about 11 February 2008. The evidence shows that the plaintiff’s pain and suffering consequences and impairment consequences increased dramatically from the time of the occurrence of the 2008 injury and she has been unable to engage in suitable employment since. I find that the plaintiff’s present pain and suffering consequences and impairment are attributable to the 2008 injury and not the 2005 injury.
72 It is not possible on the evidence for me to find that the injury sustained by the plaintiff on 15 July 2005 was a “serious injury” within the meaning of the Act. For these reasons the plaintiff’s application must fail.
73 I will hear the parties on the question of costs.
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