Elmas v Eatmore Poultry Pty Ltd and Elmas v Eatmore; Poultry Pty Ltd and Baiada Poultry Pty Ltd
[2009] VCC 183
•13 March 2009
Doporhtra
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI 07 03401
| HATICE ELMAS | Plaintiff |
| v | |
| EATMORE POULTRY PTY LTD | Defendant |
| And |
Case No CI 07 03403
| HATICE ELMAS | Plaintiff |
| v | |
| EATMORE POULTRY PTY LTD | First Defendant |
| And | |
| BAIADA POULTRY PTY LTD | Second Defendant |
---
| JUDGE: | Wodak |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14,15 October 2008 |
| DATE OF JUDGMENT: | 13 March 2009 |
| CASE MAY BE CITED AS: | Elmas v Eatmore Poultry Pty Ltd & Elmas v Eatmore Poultry Pty Ltd & Baiada Poultry Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0183 |
REASONS FOR JUDGMENT
---
Catchwords: serious injury application – ss135, 135A Accident Compensation Act 1985 – employment spanning between 1990 and 2004 – s134AB Accident Compensation Act 1985 - whether application under s135A brought within time – s135A (2B) Accident Compensation Act 1985 – whether injury occurred before 12 November 1997 – whether injury occurred between 12 November 1997 and 20 October 1999 – whether injury occurred after 20 October 1999 – whether injury arose out of or was caused by or in the course of employment
1
5217/03/2009VCC0183.doc
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr A | Clark Toop & Taylor |
| Ingram | ||
| For the Defendants | Mr J Ruskin QC with Ms M | Minter Ellison |
| Tsikaris |
2
5217/03/2009VCC0183.doc
Introduction
1 In 1990, Hatice Elmas began as a process worker with Eatmore Poultry Pty Ltd. In about 2002, the business was acquired by Baiada Poultry Farms Pty Ltd. Mrs Elmas continued in her employment despite the change in ownership of the business.
2 In 1999, Mrs Elmas injured both of her wrists, in the course of her employment, and underwent surgery during 2000. She resumed work in January 2001, and later developed problems with her shoulders, particularly the right shoulder, and with her neck.
3 Mrs Elmas worked on until 2004. She stopped working then, and has not resumed working since then.
4 Mrs Elmas claims that she has suffered a “serious injury” within the meaning of the Accident Compensation Act. The injuries on which she relies, are to both of her wrists, and to her right shoulder and neck. She seeks leave to commence a proceeding for damages for pain and suffering and for pecuniary loss arising from incapacity which she attributes to these injuries. Eatmore and Baiada dispute her claims.
5 There are two applications. In the first, proceeding CI 07 03401, the application is made under ss135 and 135A of the Act (the first application). In the second, proceeding CI 07 03403, the application is brought under s134AB of the Act (the second application).
The evidence
(i) relied on by Mrs Elmas 6 Mr McGarvie relied on four affidavits sworn by Mrs Elmas[1], and in addition, tendered the following material:
[1] Sworn 1 May 2007, PCB pp8-17 (the first affidavit); 16 September 2008, PCB pp18-20 (the second affidavit); 1 May 2007, PCB, pp21-29 (the third affidavit) and 16 September 2008, PCB pp16 September 2008, (the fourth affidavit)
No Author Description Date PCB pages
1. Grant Olney Letter 22-04-04 030 2. Dr M Wegrzynowski Medical report 07-05-04 031 3. Paul Singh Letter 17-05-04 032 4. Paul Singh Letter 08-06-04 033 5. A D B Ingram Statement of Claim Undated 034-039 6. Dr M Wegrzynowski Medical report 01-08-00 043-046 7. Dr M Wegrzynowski Medical report 07-05-04 047 8. Dr M Wegrzynowski Medical report 28-09-05 048-052 9. M J Clifford Medical report 22-11-04 053
10. M J Clifford Medical report 17-12-04 054 11. M J Clifford Letter 12-09-06 055 12. Dr U Uluca Medical report 07-02-95 056 13. Dr A Stockman Medical report 14-02-07 057-59 14. Dr A Stockman Medical report 13-08-08 060-062 15. Dr A Harkness Medical report 05-06-06 063-064 16. Mr K Brearley Medical report 23-02-07 065-070 17. Mr K Brearley Medical report 02-07-08 071-075 18. Mr A Berger Medical report 09-12-04 076-077 19. Dr A Kaplan Medical report 16-07-08 078-084 20. Dr P Blombery Medical report 04-08-08 085-088 21. Mr F Behan Medical report 08-07-08 089-097 22. Dr A Dobrotwir Xray report 25-10-04 098 23. Dr D Freilich Nerve conduction study 03-09-99 099 report 24. Hatice Elmas Incident report 24-12-02 113-114 (ii) relied on by Eatmore Poultry and Baiada Poultry
7 Mr Ruskin tendered the following material:
No Author Description Date DCB pages
1. Dr A Ansari Medical report 14-01-88 001-002 2. Dr T Kostos Medical report 23-05-00 003-005 3. Dr T Kostos Medical report 01-06-04 006-008 4. Mr M Stapleton Medical report 23-02-04 009-012 5. Dr G Davison Medical report 02-08-04 013-016 6. Dr G Davison Medical report 13-01-05 017-020 7. Mr J Sinha Medical report 28-01-05 026-030 8. Mr J Sinha Medical report 22-02-05 031-037 9. Mr M Shannon Medical report 20-11-07 032-037
10. Mr M Shannon Medical report 07-10-08 037A-037C 11. Hatice Elmas Worker’s claim 10-04-00 099-100 12. Hatice Elmas Worker’s claim 21-12-04 101-103
13. Melissa Lehmann Vocational assessment 02-04-04 112-117 report
14. Melissa Lehmann Cease service advice 24-06-04 118-119 15. Melissa Lehmann Cease service report 26-10-04 120 16. Hatice Elmas Statement 14-04-04 121-123 17. Irene Winkler Statement 14-04-04 124-126 18. Partial incapacity forms Various 127-136 19. Employee hours report Various 137-144 20. Registry of Injury form 22-01-98 145 21. Dr J Lipp Medical certificate 23-01-98 146 22. Workcover certificates of various 147-287 incapacity
23. Hatice Elmas S134A/AC Form A 01-05-07 PCB application 100-101
Mrs Elmas’ background:
8 Hatice Elmas was born in Turkey in 1958. She was aged 50 at the time of the hearing. Mrs Elmas did not attend school in Turkey. She helped in the family home, caring for her younger siblings and working on the family’s farm before migrating to Australia when aged 18. She is illiterate in Turkish and in English, and speaks limited English. Mrs Elmas is married, and with her husband, has four adult children.
9 Since arriving in Australia, Mrs Elmas has performed manual work, mostly process work with poultry manufacturing companies.
10 In 1985, Mrs Elmas was a passenger in a car which was involved in an accident, injuring her neck, left shoulder and arm. She did not work for about five years after the accident[2]. She gave birth to her twin youngest children in about 1988[3].
[2] Transcript p14
[3] See Mrs Elmas’ first affidavit, paragraph 3, PCB p9; transcript p20
11 Mrs Elmas began working with Eatmore on 21 March 1990. In 1995, she injured a hand, and experienced some back pain. After some time off work, her symptoms resolved. When she recovered, Mrs Elmas began working for Eatmore , on the poultry line, processing chicken carcasses. She performed different tasks, which were rotated[4]. She described that work as:
“…constant, fast and repetitive work…it required employees such as myself to
constantly place strain upon their wrists, shoulders and upper limbs…”[5]
[4] See Mrs Elmas’ first affidavit, paragraph 8, PCB pp10-11
[5] See Mrs Elmas’ first affidavit, paragraphs 8, 9, PCB p11
12 Mrs Elmas claims that she began to experience problems with her hands about six or seven years after beginning with Eatmore, and in her right shoulder at the end of 1997[6]. She maintains that she had numbness and pain in both of her hands in 1998 and 1999[7].
[6] Transcript p11
[7] Transcript pp11-12
13 On 13 October 2000, Mr Berger performed carpal tunnel release surgery on Mrs Elmas’ left upper limb. On 23 November 2000, he performed the same procedure on Mrs Elmas’ right upper limb.
14 The surgery reduced the level of symptoms in each of Mrs Elmas’ upper limbs. She resumed work in January 2001, certified fit to perform light duties work, and was placed in the box room. There she:
“…continued to perform repetitive and reasonably heavy manual work and continued to place strain on my wrists arms and shoulders. I continued to perform this work through until the time I was advised that no further work was available.”[8]
[8] See Mrs Elmas’ first affidavit, paragraph 12, PCB p12
15 Mrs Elmas had expected to continue working at least until her “mid 50’s”. She intended to continue working, on light duties, despite the symptoms in her shoulders, especially her right shoulder, and in her hands. She enjoyed working[9].
[9] See Mrs Elmas’ first affidavit, paragraph 13, PCB pp12-13
16 Mrs Elmas said that in about February 2004, Baiada informed her that there was no more light work available for her. On 22 April 2004, Baiada required her to state whether she was fit to resume her normal “pre-injury” duties (that is, as to the work she was performing before 18 August 1999), and if not, what type of work she was then able to perform[10].
[10] See the letter, 22 April 2004, PCB p30
17 In response to that request, Mrs Elmas’ general practitioner, Dr Wegrzynowski advised that Mrs Elmas suffered work related cervical strain, forearm strain and bilateral carpal tunnel syndrome, making her unfit indefinitely to resume normal, pre-injury duties as a process worker. Dr Wegrzynowski assessed Mrs Elmas as then fit for full time work with:
[11] See the letter dated 7 May 2004, PCB p31
• No lifting more than 10 kgs; • No repeat lifting; • Rotation of duties every 2 hours[11].
18 By letter dated 8 June 2004, Mrs Elmas was advised by Baiada that it was terminating her employment. She has not since then looked for work[12].
[12] See Mrs Elmas’ first affidavit, paragraph 18, PCB p14; second affidavit, paragraph 3, PCB p19
19 Mrs Elmas was cross examined about these matters:
“Then in April 2004, that is a couple of months after February, the company told
you to get them a letter about your fitness for work. Is that right? --- Yes.
Then you went to your doctor and she gave you the letter? --- She sent it to them
directly.
To assist your Honour, page 30 of the plaintiff's court book has the letter which
you had to take to your doctor.
Did someone explain that letter to you? --- My daughter did.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
MR RUSKIN: Your daughter explained that to you and then you gave the letter to
your doctor? --- Yes. I have the copy of that as well.
So when the company gave you that letter, the one we are talking about, you
were then off work for a couple of months, weren't you? --- Yes.
You knew that you could not go back to your heavy chicken work? --- Yes.
And you knew you could only do the sort of work – the modified box room
duties? --- Yes.
When you got this letter in April 2004 you knew that you still had some trouble
with your hands? --- Yes.
The kind of trouble you still have? --- Yes.
You knew you had trouble with your right shoulder? --- Yes.
With something in your neck as well; the kind of trouble you still have today? ---
Yes.”[13]
[13] Transcript p28
20 On 14 April 2004, Mrs Elmas completed a written statement in which she said that[14]:
[14] DCB pp121-123
(a) approximately two years before 1999, she had pains in her hands. (b) In the mornings when she awoke she was unable to open her hands, and had to put them under hot water to open them. (c) at the time of making her statement, her hand was not numb. (d) sometimes she was unable to lift heavy things. (e) when she used her hand a lot, she could not sleep because of shoulder pains. 21 Mrs Elmas stated that at the time when her employment was terminated, she believed that she would continue to perform light duties:
“…as I had done for some years…I thus believe that my knowledge of serious
injury incapacity occurred at the time of the termination of my employment.”[15]
[15] See Mrs Elmas’ first affidavit, paragraph 19, PCB pp14-15
22 Mrs Elmas continues to suffer:
“…constant but variable levels of symptoms. I suffer some pain in my neck…I also suffer pain and impaired function in my shoulders, more so my right shoulder. I also suffer pain extending through my arms, again more so affecting my right arm…I also continue to suffer from some weakness in my hands. The numbness and tingling has gone but the weakness remains”[16].
[16] See Mrs Elmas’ second affidavit, paragraph 3, PCB p19
23 Mrs Elmas sees Dr Wegryznowski regularly. She takes prescribed anti inflammatory and analgesic medication. She depends on her husband and children to help her with domestic chores. She does most of the cooking, but other family members do most of the cleaning.
24 Mrs Elmas has not sought work since stopping work in February 2004[17]. Mr Ruskin then asked Mrs Elmas about her present willingness to work:
[17] Transcript p18
“Are you keen to return to some form of work? --- At the moment?
Yes? --- I don't think so.
But you are fit for modified duties, aren't you? --- Well, at this stage they also -
other than fitness they also - like, you have to be able to read and write.
But you haven't tried a single job, have you? --- No.
You haven't looked for a single job? --- No.
You know that your own doctor - and your Honour, here I am referring, for
example, to 263 of the defendants' book.
Your own doctor has said that you are fit for modified duties in December 2004,
January 2005 as an example? --- She didn't mention anything to me.
Is that right? --- I haven't been mentioned anything to me.
But you know - let me give you an example. You got a certificate from your doctor - page 286 - as late as September 2005, that is nearly a year and a half after you stopped work, to say you were fit for modified duties. You know that, don't you? --- Well, yes, that's written there but where am I going to find that type of job?
You know that the job you did for three years before you stopped you were able
to do pretty well, don't you? --- Yes.
Why haven't you looked for any work? --- Where? Because in this case you have to be registered with the agents and usually they can find it. So you have to go and fill out the forms and things.”[18]
[18] Transcript p35
The medical evidence relied on by Mrs Elmas
25 Mrs Elmas has been a patient at St Albans Medical Service since 1981. On 14 August 1999, she reported bilateral pins and needles of her hands. She did not have a previous history of such symptoms. An EMG study was reported by Dr Freilich, neurologist, confirmed bilateral carpal tunnel syndrome, which was worse on the right side.
26 Mrs Elmas consulted Dr Wegrzynowski about her diagnosed carpal tunnel syndrome, and conservative management was tried. It was unsuccessful, and Mrs Elmas was referred to Mr Berger for surgical assessment.
27 On 9 December 1999, Mrs Elmas complained of shoulder pains and bilateral medial and lateral tenosynovitis, and was prescribed physiotherapy, and given further anti inflammatory medication. On 6 April 2000, she complained to Dr Wegryznowski of neck and shoulder pains, radiating to both arms, bilateral hand parasthesia, and limited mobility of her cervical spine. Dr Wegryznowski certified her fit for modified work, with no heavy lifting or repetitive lifting, and fit for conveyor and packing work[19].
[19] See the report of Dr Wegryznowski, PCB p45
28 Dr Wegryznowski considered that Mrs Elmas had sustained injuries related to her employment as a process worker, because of the repetitive nature of her duties. The injuries she diagnosed were bilateral carpal tunnel syndrome, cervical strain and forearm strain[20].
[20] See the report of Dr Wegryznowski, PCB p46
29 On 14 June 2002, Mrs Elmas underwent arthroscopic surgery of her left wrist, when laxity of her scapho-lunate ligament was visualised. After the operation, Mrs Elmas continued to report to Dr Wegryznowski on going left wrist pain. On 24 December 2002, she complained to Dr Wegryznowski of an increasingly painful right shoulder over the previous two weeks. She continued to work on a restricted basis[21].
[21] See the report of Dr Wegryznowski, PCB p51
30 Mrs Elmas went overseas for three months, and on 14 October 2003, she consulted Dr Wegryznowski with worsening right shoulder pain, after resuming work the previous day. On 15 November 2003, she reported to her general practitioner continuing hand and arm pain, and on 21 February 2004, she complained of on going neck pain. On examination, Mrs Elmas had limited mobility of her cervical and thoracic spine[22].
[22] See the report of Dr Wegryznowski, PCB p51
31 Dr Wegryznowski continued to issue medical certificates for Mrs Elmas to perform modified duties. She considered that Mrs Elmas remained permanently unable to resume her pre-injury work. Mrs Elmas had an injection of Depo-Medrol and Xylocaine into her right shoulder from Mr Clifford in December 2004[23].
[23] See the report of Dr Wegryznowski, PCB pp51-52
32 Mr Clifford reported that he had twice injected Mrs Elmas’ right shoulder. He considered that she had a partial thickness supraspinatus tear, and subdeltoid bursitis[24]. She complained of bilateral knee pain.
[24] See the report of Mr Clifford, PCB p53
33 Mr Clifford considered that Mrs Elmas was considerably overweight. Xrays of her knees showed bilateral osteoarthritis and small effusions. He recommended conservative treatment and weight loss for Mrs Elmas[25].
[25] See the report of Mr Clifford, PCB p54
34 Mr Berger, hand surgeon, first saw Mrs Elmas in November 1999 for bilateral hand problems. She gave a history of two to three months of numbness and tingling, and electric sensations in both of her hands, worse when working, and interfering with her sleep. Mr Berger’s clinical examination and an EMG study by Dr Freilich confirmed a diagnosis of bilateral carpal tunnel compression syndrome. He performed endoscopic carpal tunnel release procedures on Mrs Elmas’ left side on October 2000 and on her right side in November 2000[26].
[26] See the report of Mr Berger, PCB p76
35 He reviewed Mrs Elmas in April 2001. She had swelling and pain in the volar aspect of her left wrist around the surgical site. Xrays and ultrasound revealed rupture of the scapholunate interosseous ligament, and an arthroscopic procedure was then performed. Mr Berger reviewed Mrs Elmas, after this procedure, in July 2002, and there was no sign of ligament tear. He has not seen her since[27].
[27] See the report of Mr Berger, PCB p77
36 On 5 June 2006, Dr Harkness saw Mrs Elmas for medico legal assessment. She provided a history of bilateral hand numbness and pain, and of having the three operations performed by Mr Berger. She described bilateral shoulder pain, which was worse in the right shoulder. She said that she had three shoulder injections, which provided relief for some time. She took Voltaren, which provided some relief. Mrs Elmas stated that she continued to work until 20 February 2004, when she stopped work because of the pain. Since then, her hands were all right, unless she did too much. She said that she continues to have pain in both shoulders[28].
[28] See the report of Dr Harkness, PCB p63
37 Dr Harkness attributed the bilateral carpal tunnel syndrome to tenosynovitis in the flexor tendons of the hands and wrists due to the repetitive nature of her process work duties. He was uncertain whether she had injured the scapholumenate ligament injury, given her operation findings of Mr Berger. He thought that Mrs Elmas had work related strain injuries of both shoulders, with a partial right supraspinatus tendon tear and right subacromial bursitis. There had been improvement of the median nerve compression of her hands, and Mrs Elmas may have long term degenerative problems due to scapholumenate interosseous ligament damage, if present, about which he was unsure. He considered that the inflammation of the right subacromial bursa was still causing pain and would continue to do so. He thought that some improvement could take place, as Mrs Elmas was not working, and that it should not get worse.
38 Dr Harkness did not expect that Mrs Elmas:
“…would ever be able to do repetitive manual work such as process work. I feel
that this was the cause of the injuries in the first place…”[29]
[29] See the report of Dr Harkness, PCB p64
39 Mrs Elmas was seen by Dr Stockman for a medico legal assessment in February 2007. She explained that in August 1999 she developed numbness in both hands and left shoulder pain. She said that her right shoulder pain developed in April 2001[30].
[30] See the report of Dr Stockman, PCB p57
40 Mrs Elmas complained of continuing pain in both shoulders, especially on the right, which was worsened by movement. She said that the three injections into her right shoulder had provided relief for 12 months at a time. She also complained of slight intermittent numbness in her hands.
41 Dr Stockman regarded Mrs Elmas as being considerably overweight. She had a full range of neck movement, with minimal discomfort, and a full range of movement of both shoulders, with some pain on rotation of her right shoulder. She also had pain on abduction of her right shoulder, consistent with rotator cuff lesion. On examining her hands, Dr Stockman observed no obvious swelling or deformity, no muscle wasting, normal finger function and slight reduction in grip strength, particularly in her right, dominant hand[31].
[31] See the report of Dr Stockman, PCB p58
42 Dr Stockman’s opinion was that Mrs Elmas developed carpal tunnel syndrome bilaterally while working with Eatmore in 1999, which resolved with surgery in 2000. He considered that it had probably developed over many years in her employment at Eatmore, but:
“…the work between 12/11/1997 and 20/10/1999 has been by far the major
cause of the development of carpal tunnel syndrome in both hands.”[32]
[32] See the report of Dr Stockman, PCB p59
43 He thought there was a possible minor recurrence recently.
44 As well, she had pain in both shoulders since 1999, particularly in the right shoulder, which he attributed to a partial tear of the supraspinatus tendon and subacromial bursitis. Although there had not been radiological investigation of the left shoulder, he thought it likely that there would be similar findings there as well. He thought that the rotator cuff lesions in the shoulders, particularly in the right shoulder was caused by her work over the years:
“…particularly between 12/11/1997 and 20/10/1999 with a significant
exacerbation after 20/10/1999 until she ceased work on 20/02/2004.”[33]
[33] See the report of Dr Stockman, PCB pp58-59
45 Dr Stockman warned that the symptoms of carpal tunnel syndrome can recur with heavy and repetitive work, and that rotator cuff lesions in the shoulders can be aggravated by that type of work. Because of this he regarded Mrs Elmas as unfit for her pre-injury employment[34].
[34] See the report of Dr Stockman, PCB p59
46 There was evidence of osteoarthritis in her right knee, but Dr Stockman thought this was unlikely to be work related.
47 When he reviewed Mrs Elmas on 13 August 2008, she explained that the numbness and power in her hands had improved considerably since the carpal tunnel release operations in 2000. She said that she was pain free in her shoulders and arms when resting, but that getting dressed or doing household chores aggravated the pain. Dr Stockman diagnosed rotator cuff lesions in both shoulders; probably cervical spondylosis (often age related), and osteoarthritis of the left knee[35] and possibly of the left hip. He considered that clinically, her bilateral carpal tunnel syndrome had resolved since surgery, although Mrs Elmas complained of occasional numbness in her fingers, to which he attached little clinical significance. Dr Stockman assessed Mrs Elmas as capable of full time light work[36].
[35] When he first saw Mrs Elmas, Dr Stockman diagnosed osteoarthritis of the right knee: PCB p58
[36] See the report of Dr Stockman, PCB p61
48 Mr Brearley provided another surgical medico legal assessment, after examining Mrs Elmas on 23 February 2007. Mrs Elmas stated that her wrists and hands had improved since the operations, but she had some continuing problems. She could not lift heavy objects, or perform repetitive tasks. She said that she had occasional discomfort in her shoulders.
49 Mr Brearley diagnosed bilateral carpal tunnel syndrome which he thought had been successfully treated, surgically. He accepted that Mrs Elmas had residual symptoms in both hands, with discomfort on heavy or repetitive use. He also diagnosed injuries to both shoulders, being a partial thickness tear of the right supraspinatus, and right subdeltoid bursitis. He thought the left shoulder was probably similarly damaged. Mrs Elmas now had a good range of shoulder movement, with discomfort on heavy use.
50 Mr Brearley considered that the work Mrs Elmas performed at Eatmore was responsible for her bilateral carpal tunnel syndrome. He thought that the work she did until 12 November 1997 laid the foundation for later development of symptoms, because of repeated minor trauma to the structures of the carpal tunnel. Because the work she performed between 12 November 1997 and 20 October 1999 was of a similar nature, further injury would have occurred bilaterally during this time, and was a significant contributing factor to the injury occurring. The work Mrs Elmas performed between 20 October 1999 and 20 February 2004, in the early part of that phase would:
“… be also contributing to her injuries. After 2001 she was put into the box room where the duties were said to be lighter but they were still repetitive and heavy and they would have made a significant contribution to her symptoms also.”[37].
[37] See the report of Mr Brearley, PCB p68
51 In Mr Brearley’s opinion, Mrs Elmas could not return to her pre-injury work, and she was unfit for manual labour. He considered that her condition was stable, with no likelihood of improvement[38].
[38] See the report of Mr Brearley, PCB p69
52 Mr Brearley reviewed Mrs Elmas in July 2008. She informed him that her condition was basically unchanged in the time between her assessments by him. She thought that she could do some part time light work. Mr Brearley accepted that there was an organic basis for Mrs Elmas’ wrists and shoulders injuries and for her pain and symptoms. He confirmed his earlier opinion that Mrs Elmas was not fit for her previous work because of residual problems in her wrists. He explained that although her problems were relatively slight:
“…if she were to return to that type of work her symptoms would probably recur.
The same applies to her shoulders.”[39]
[39] See the report of Mr Brearley, PCB p74
53 He thought it probable that she would be limited to working for six hours a day, for five days a week, on light duties[40].
[40] See the report of Mr Brearley, PCB p74
54 Dr Kaplan made a psychiatric assessment of Mrs Elmas in July 2008. He considered that Mrs Elmas had adjusted well to her physical injuries, and that she did not suffer from any psychiatric condition[41].
[41] See the report of Dr Kaplan, PCB pp81-82
55 Dr Blombery, consultant physician conducted another medico legal assessment, after examining Mrs Elmas in June 2008. She developed features of bilateral carpal tunnel median nerve compression, and a more diffuse myofascial pain syndrome involving the shoulders and arms.
56 Although Dr Blombery considered that Mrs Elmas’ overweight status and her diabetes may have contributed, her employment:
“…was a significant contributing factor to the development of carpal tunnel
compression of the median nerves.”[42]
[42] See the report of Dr Blombery, PCB p87
57 Dr Blombery thought that a lot of her current pain was in the nature of a chronic pain syndrome with a:
“…non-specific sensitisation of pain nerve pathways both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.”[43]
[43] See the report of Dr Blombery, PCB p87
58 He regarded Mrs Elmas as having a poor prognosis, as her symptoms had been present for many years, and were stable. He did not think there was a major component of depression or psychological factors which enhanced her experience of pain. He considered that her pain was organically based, and that Mrs Elmas had no capacity to resume her pre-injury work because of the carpal tunnel compression of the median nerves and the myofascial pain syndrome of the arms and shoulders[44].
[44] See the report of Dr Blombery, PCB p88
59 Mr Behan, a reconstructive and hand surgeon completed a medico legal assessment of Mrs Elmas in July 2008. When he examined Mrs Elmas, she had greater pain in her left hand than in her right, with pins and needles and reduced strength. Mr Behan considered that Mrs Elmas presented with pain in both wrists, elbows and shoulders, more severe on the right than on the left.. He observed that her condition:
“…developed in the context of a 10-year work history as a process worker
gutting, and cleaning chickens in the poultry factory.”[45]
[45] See the report of Mr Behan, PCB pp91-92
60 Mr Behan noted that Mrs Elmas appeared keen to resume work, but that she did not know what may be available. He thought that because of her on going symptoms, Mrs Elmas should be referred back to Mr Berger. Mr Behan noted that other medical examiners, Mr Stapleton, Dr Kostos and Dr Davison,[46] raised doubts about the work related nature of Mrs Elmas’ injury, noting that she is profoundly overweight, and added:
“While I agree that the plaintiff’s excessive weight may be contributing to her present symptomatology, I would still consider her injury primarily to have arisen as a result of her employment and work activity…I feel that the circumstances of sustained manual activity as a process worker in a cold environment would be a contributing factor to the development of this condition.”[47]
[46] See the report of Mr Behan, PCB p91
[47] See the report of Mr Behan, PCB p91
The medical evidence relied on by Eatmore and Baiada
61 A report of Dr Ansari, Mrs Elmas’ general practitioner was relied on dealing with events in 1986. Dr Ansari saw Mrs Elmas in February 1986, with complaints of headaches, neck pain, backache and parasthesia in her fingers. Her neck pain radiated to both shoulders, worse on her left. Mrs Elmas stated that she had been injured in a car accident in September 1985, following which she developed neck pain and headaches.
62 Xrays of her cervical spine revealed no abnormality. Dr Ansari diagnosed a soft tissue cervical spinal injury with musculo-ligamentous strain, and rotator cuff lesion to both shoulders. He considered the clinical findings to be consistent with the stated cause. By November 1986, Dr Ansari regarded Mrs Elmas as fit for suitable light work. He thought her condition should stabilise within between two to five years, “depending on her mental attitude”. At the time of his report, Dr Ansari considered Mrs Elmas as unfit for her pre-injury work[48].
[48] See the report of Dr Ansari, DCB pp1-2
63 Mrs Elmas saw Dr Kostos, rheumatologist, in May 2000, and stated that about two years earlier, she developed numbness in her hands. She said that later in 1998, she went to Turkey for two months, during which time her symptoms improved, but that after she resumed work, they seemed to deteriorate again. Dr Kostos thought that the onset of nocturnal parasthesia and numbness, of which Mrs Elmas complained was suggestive of carpal tunnel syndrome, adding that:
“…carpal tunnel syndrome is a common condition in middle aged women and is
strongly associated with obesity.
Therefore given this woman’s size I would think that this is most likely to be the single most significant contributing factor to the development of this condition.”[49]
[49] See the report of Dr Kostos, DCB p4
64 Dr Kostos did not regard the work performed by Mrs Elmas as a significant contributing factor to her condition. He doubted whether the generalised weakness on examination was caused by anatomical factors[50].
[50] See the report of Dr Kostos, DCB p5
65 Dr Kostos reviewed Mrs Elmas in May 2004, when he thought that the carpal tunnel release surgery on each upper limb was successful. He maintained that this condition was due to “constitutional problems”, as Mrs Elmas was an “obese, middle aged female, and that the condition was unrelated to her employment[51]. He added that her presenting problems were not associated:
“…with any localised musculo-skeletal condition and in fact I can’t find any objective abnormality at all on physical examination…she has a widespread exaggerated pain response, with a number of inconsistencies and discrepancies on physical examination, suggesting that she is trying to exaggerate her disability.”[52]
[51] See the report of Dr Kostos, DCB p7
[52] See the report of Dr Kostos, DCB p7
66 Dr Kostos thought that Mrs Elmas could resume full time work of the kind she was performing earlier in 2004. He regarded her prognosis as poor, because of the manner of her presentation[53].
[53] See the report of Dr Kostas, DCB pp7-8
67 Mr Stapleton, plastic and hand surgeon, examined Mrs Elmas in February 2004. He attributed her carpal tunnel syndrome to two factors. The first was that she was considerably overweight, explaining that her obesity caused additional compression on a “constitutionally compromised median nerve”. The second was that the operations were performed when she was aged in her forties, and when her periods had ceased. Mr Stapleton explained that:
“the majority of people who present with carpal tunnel syndrome are menopausal
women.”[54]
[54] See the report of Mr Stapleton, DCB p10
68 He rejected the proposition that Mrs Elmas had sustained an injury, and declined to associate her work with carpal tunnel syndrome. It was his opinion that repetitive duties or hard work were not causative, or capable of an aggravation of that condition. Somewhat surprisingly he considered that the condition:
“…has resulted in an incapacity for return to pre-injury employment, for it would appear at this stage that she does not have the capacity or indeed an inclination, to return to unrestricted work.”[55]
[55] See the report of Mr Stapleton, DCB p11
69 Given that Mr Stapleton’s conclusion that Mrs Elmas does not have an injury, and that her carpal tunnel syndrome was not caused or aggravated by her work, his conclusion that she has no capacity for unrestricted work lacks logical persuasion. If the nature of her work neither caused or aggravated her carpal tunnel syndrome, and if, as he found, she did not have an injury, the fact that she had carpal tunnel syndrome, from which she had recovered well, as Mr Stapleton found, does not satisfactorily explain why she could not work.
70 In July 2004, Dr Davison, occupational physician, examined Mrs Elmas. He too considered that Mrs Elmas’ bilateral carpal tunnel syndrome was resolved, after the operations. He observed that the reported pattern of pain in her upper limbs was inconsistent with carpal tunnel syndrome. Dr Davison shared Mr Stapleton’s conclusion that the employment of Mrs Elmas was:
“…never a significant contributing factor to her bilateral carpal tunnel syndrome. In my opinion, the carpal tunnel syndrome was contributed to by gross obesity and other constitutional factors.”[56]
[56] See the report of Dr Davison, DCB p15
71 He assessed Mrs Elmas as fit for suitable work, with no heavy lifting, no repetitive lifting, and rotation of duties every two hours. He regarded these restrictions as due to her bilateral upper limb pain on heavy physical activity[57].
[57] See the report of Dr Davison, DCB p16
72 Given Dr Davidson’s findings when he examined Mrs Elmas, and the absence of any abnormality in his examination of her upper limbs, her obesity apart, and his opinion that the pattern of her upper limb pain is inconsistent with carpal tunnel syndrome, his assessment of her capability for work has the same logical flaw as does that of Mr Stapleton.
73 Dr Jager, consultant psychiatrist examined Mrs Elmas in September 2004. He found that she did not suffer from any mental disorder, or from any psychiatric injury[58].
[58] See the report of Dr Jager, DCB pp21-25
74 Mr Sinha provided another surgical evaluation of Mrs Elmas, following his assessment of her in January 2005. Mr Sinha considered that the bilateral carpal tunnel decompression procedures were successful. He diagnosed bilateral carpal tunnel syndrome, but reasoned that if Mrs Elmas’ capacity for work was restricted, it was no longer related to the original incidents. He noted that she was obese, and had recently been diagnosed with diabetes mellitus.
75 Mr Sinha attributed the carpal tunnel syndrome to systemic factors, such as Mrs Elmas’ obesity, her pre-diabetic state and her middle age female status. These factors were not work related. He did not consider that Mrs Elmas had a work incapacity, as her injuries were treated successfully. Any incapacity was not related to her employment. He considered that Mrs Elmas was fit for unrestricted work[59].
[59] See the report of Mr Sinha, DCB pp28-30
76 In November 2007, another orthopaedic assessment of Mrs Elmas was conducted by Mr Shannon, who considered that the bilateral carpal tunnel syndrome was a common condition in middle aged women, particularly in association with obesity. He noted that the condition was not particularly symptomatic when Mrs Elmas was at work, because of which, he considered that her employment was an insignificant contributing factor to the carpal tunnel syndrome[60].
[60] See the report of Mr Shannon, DCB p35
77 He did not think that Mrs Elmas had any substantial on going impairment from the carpal tunnel syndrome, nor was there any on going work related impairment. Mrs Elmas had some degenerative change in her right shoulder rotator cuff tendons, with minor reduction in the function of her right shoulder. He assessed her left shoulder function as virtually normal. She had some minor restriction of neck movement. He could not say whether her neck condition was work related. He thought that her shoulder condition could have been aggravated by the repetitive nature of her work[61].
[61] See the report of Mr Shannon, DCB p36
78 Mr Shannon thought that the condition of Mrs Elmas’ neck and shoulders would restrict her work capacity, and her domestic activity, involving strenuous repetitive use of the arms, heavy lifting and work above the level of her shoulders. In his view the degenerative changes would have become symptomatic over time, independently of her work. He pointed out that her neck symptoms had emerged many years before. He regarded the motor vehicle accident as a significant contributing factor to at least the state of Mrs Elmas’ neck, and possibly to her shoulder. If Mrs Elmas had any incapacity for work, Mr Shannon attributed that to her neck and shoulders, especially the right shoulder[62].
[62] See the report of Mr Shannon, DCB p36
79 Mr Shannon reviewed Mrs Elmas in October 2008. She denied any injury to her neck or shoulders in a previous motor vehicle accident. He maintained that Mrs Elmas had recovered from her previous bilateral carpal tunnel syndrome, and it did not restrict her work capability[63].
[63] See the report of Mr Shannon, DCB p37B
80 Mr Shannon accepted that Mrs Elmas may have difficulty performing her normal duties, because of her shoulder symptoms, but she was fit for alternative duties[64].
The issues to be resolved
[64] See the report of Mr Shannon, DCB p37C
81 Mrs Elmas has two applications for determination. The first application is under s135A(19)(a) and s135AC of the Act, and the second application is under s134AB(37)(a) of the Act.
82 The first application concerns Mrs Elmas’ employment with Eatmore between 21 March 1990 and 12 November 1997. The questions requiring resolution are:
(a) whether Mrs Elmas suffered a compensable injury arising out of or in the course of her employment with Eatmore to her –
(i) left wrist and her right wrist;
(ii) right shoulder;
(iii) neck.
(b) whether any and which of these injuries have caused an impairment or loss of a body function such that the injury is a “serious injury”;
(c) whether Mrs Elmas commenced her application for a determination
under section 135A(2B) before the expiration of 3 years after the date on
which her incapacity became known.
83 The second application concerns Mrs Elmas’ employment with Eatmore and Baiada from 20 October 1999 until February 2004. The questions arising are:
(a) whether Mrs Elmas suffered compensable injury arising out of or in the course of her employment with Eatmore and or Baiada to her –
(i) left wrist and her right wrist;
(ii) right shoulder;
(iii) neck.
(b) whether any and which of these arose out of or in the course of or due
to the nature of her employment with Eatmore between 12 November 1997
and 20 October 1999 – the so called “black hole”;
(c) whether any and which of these injuries have caused an impairment or loss of a body function such that the injury is a “serious injury”;
84 In answering these questions, another question has arisen, namely whether Mrs Elmas can aggregate any two or more of her claimed injuries.
The legal principles
85 For the purposes of the application under s135A , "serious injury" means –
(a) serious long-term impairment or loss of a body function; or
[65] see s135A(19) of the Act
disorder.[65] (c) severe long-term mental or severe long-term behavioural disturbance or
86 Mrs Elmas must establish that each claimed injury is a “serious injury”. As Crockett and Southwell JJ explained, in determining a serious injury application, the worker must satisfy the judge of an impairment or loss of a body function, resulting from the injury complained of that is serious and long term. Their Honours continued[66]:
“. . . . We think “long term” is not an expression likely to give rise to difficulty. To be “serious” the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgement as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as least as “very considerable” and certainly more than
“significant” or “marked”?”
[66] Humphries and another v Poljak [1992] 2 VR 129 at p 140; see also Ninkovic v Pajvancek [1991] 2 VR 427 at 429; Petkovski v Galletti [1994] 1 VR 436 at 442
87 In Mobilio v Balliotis, Mobilio and Transport Accident Commission[67], the Court of Appeal, although there concerned with the provisions of the Transport Accident Act 1986, considered that in reaching a conclusion, a judge had to form an opinion involving elements of fact, degree and value judgement dependent on the judge’s appreciation of the whole of the relevant circumstances[68]. That approach to reasoning applies to the task of judges determining applications under the Accident Compensation Act as well.
[67] [1998] 3 VR 833
[68] [1998] 3 VR 833, see Brooking J A at pp 836-837; Ormiston J A at p 853, Phillips J A at p 858
88 It is Ms Elmas’ circumstances that must be considered in each application. She must establish that she has a serious impairment which is long-term for her, either by disablement from work or interference with enjoyment of life, as was pointed out by Marks J[69].
[69] Ninkovic v Pajvancek, [1991] 2 VR 427 at p 429
89 From Humphries v Poljak[70], it is clear that when considering the consequences for Mrs Elmas, in each of the applications, the injury, when judged by comparison with other cases in the range of possible impairments or losses, must be at least “very considerable” and certainly more than “significant” or “marked”.
[70] [1992] 2 VR 129 at p 137
90 Some of the medical opinions considered whether, and to what extent Mrs Elmas’ condition has a functional component. To the extent to which she has a functional condition, or a psychological reaction to an organically based injury, the principles distilled by Winneke P in Richards v Wylie[71] must be applied. The learned President was considering the construction of s93(17) Transport Accident Act, and stated –
“The inquiry which the judge must make under subpara(a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is “serious” and “long term” (see Humphries v Poljak, supra at 138 and 140, per Crockett and Southwell JJ). The “division” to which their Honours referred emphasizes, and was intended to emphasize, the nature of the inquiry which a judge is called upon to make under subpara(a) and to caution judges against succumbing to the temptation of equating “impairment of body function” with “injury”…Thus, the judge, in making the inquiry, must be careful - particularly in cases where mental disturbances or disorders have supervened - not to lose sight of the focus which the definition in subpara(a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of “impairment or loss of a body function”. If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the “mental or ... behavioural disturbance or disorder” which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under subpara(c).”
[71] [2000] 1 VR 79 at pp86-87
91 Richards v Wylie requires emphasis on the physical basis of impairment. If the impairment is to a significant degree the product of mental disturbance or disorder, it cannot be taken into account under sub paragraph (a) of the definition of serious injury.
92 In Hurwood v State of Victoria, Osborn AJA, with whom Charles JA and Buchanan JA agreed set out a number of relevant principles which apply to these applications:
“(a) An applicant for leave must identify the injury to which s.135A(4)(b) applies. (b) Such an injury is one arising out of, in the course of, or due to the nature of employment in the period between the appointed day 31 August 1985 and 12 November 1997.[72]
(c) The applicant need not establish prior to the trial of the proceeding for damages that the injury referred to in sub-s.(4)(b) was an injury falling within sub-ss.(2)(a) or (b). Nevertheless a respondent may satisfy a court that the applicant has no prospect of establishing that the applicant met the conditions of sub-ss.(2)(a) or (b). In these circumstances the court may refuse the application for leave in the exercise of its discretion not to accede to a futile application.
(d) An applicant for leave must also show that the injury satisfies the definition of "serious injury" under sub-s.(19) as at the date upon which the application for leave is determined.
(e) Because an application for leave under sub-s.(4)(b) falls within the category of "proceedings in accordance with s.135 or 135A", section 135AC may be used as an answer to an application under sub-s.(4)(b).
(f) In cases to which s.135AC(b) applies, the applicant must show that the cause of action arose before 12 November 1997, the incapacity was not known until after that date, and application for a determination under s.135A(2)(b) was made before the expiration of three years after the date the incapacity was known.
(g) The incapacity which is relevant under s.135AC is not the initial injury but
the "serious injury incapacity".
(h) The test of knowledge of the incapacity is "actual subjective knowledge"[73].
[72] See Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183 per Ashley AJA at paragraph 38; Wilson v State of Victoria [2004] VSCA 55 per Buchanan JA at paragraph 14; Chernov JA at paragraph 23
[73] Hurwood v State of Victoria [2005] VSCA 176 per Osborn AJA, paragraph 11
93 The Act provides different rules governing proceedings for damages for injuries which arise out of or in the course of employment, in which the periods of employment are critical. These were conveniently analysed by Buchanan JA in Wilson v State of Victoria:
“Actions for damages for injuries arising from employment before the appointed day are governed by common law rules. Actions for damages for injuries arising from employment between the appointed day and 12 November 1997 are governed by the provisions of s 135A. Actions for damages for injuries arising from employment between 12 November 1997 and 20 October 1999 are regulated by the provisions of s 134A. Actions for damages for injuries arising from employment after 20 October 1999 must comply with the provisions of s 134AB, which sets out an elaborate system of medical assessments and exchange of medical reports and offers of settlement. In my opinion, an applicant for leave pursuant to s 135A is required to establish that he sustained an injury to which the provisions of the section, not those of another regime, apply.”[74]
[74] [2004] 10 VR 361 at 365, paragraph 16
94 A time limit is imposed under s135AC of the Act, which provides:
Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—
(a) subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b) if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.
95 The application for determination to which s135AC(b) refers is dated 1 May 2007[75]. Thus, as s135AC(a) does not apply[76], Mrs Elmas must show that she did not know of the incapacity arising from her injury until after 12 November 1997, and that her application was brought before the expiration of three years from when she knew of the incapacity.
[75] PCB pp100-101
[76] see Papercorp Pty Ltd and Nicolaou and Howden v Ansett Australia [2006] VSCA 143 per Ashley J A paragraph 24
96 Ashley J A explained that a worker’s knowledge of the incapacity arising from the injury, for the purpose of s135AC(b) means:
“…knowledge of -
• All the consequences of compensable injury, such consequences attracting the description, "serious injury". or • Particular consequences of compensable injury of importance to the worker, which consequences are sufficient to attract the description, "serious injury". or
• Any consequences of compensable injury which are sufficient to attract the description, "serious injury".[77][77] Papercorp at paragraph 27
97 His Honour added that “the incapacity arising from the injury” should refer to any consequence known to the worker, deriving from the compensable injury which would found a successful serious injury application[78]. His Honour cautioned about confusing the knowledge of a worker and the opinion of a medical practitioner:
“…that the applicant, knowing that he suffered from the symptoms which informed those opinions, must be taken to have known that he was suffering from serious injury; or that he must be taken to have known such a thing if the doctors were shown to have offered him a gloomy prognosis."[79]
[78] Papercorp at paragraph 33
[79] see Edwards v McSaveney [2005] VSCA 252 paragraph 15
98 His Honour explained that these are general observations, and that:
“…the question whether a worker had relevant knowledge at a particular time requires an assessment of the worker’s actual knowledge of those matters at that time in all the circumstances of the case.”[80]
[80] Papercorp paragraphs 46-48
99 Ashley J A summarised the position under s135AC(b) in these terms:
“It is for the judge hearing a s.135A(4)(b) application to decide what the worker knew about the extent of and probable duration his or her incapacity arising from the compensable injury at a particular time; and, always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment.”[81]
[81] Papercorp paragraph 50
100 Nettle J A while agreeing with these reasons, warned against attempting a comprehensive definition of what constitutes knowledge of a worker within s135AC(b). He considered that facts from which knowledge is objectively capable of being ascertained must, in some circumstances be knowledge within the section.[82]
[82] Papercorp, paragraph 4
101 In Edwards v McSaveney, Ashley J A noted that knowledge:
“…of a permanent compensable incapacity for pre-injury work, particularly when such work had always involved considerable physical exertion in a man who was otherwise unskilled, was surely knowledge of serious injury incapacity, at least as the legislation stood at the time. That was so even if, in consequence of retraining and particular job placement, the applicant in fact obtained lighter work for a period; and even if the applicant earned no less money in such work.”[83]
[83] See Edwards v McSaveney [2005] VSCA 252, paragraph 24
102 The task confronting the judge, under s135AC was explained by Ashley JA as involving a question of fact, that is, whether the worker had:
“…knowledge of "incapacity arising from the injury," the latter having been interpreted in this Court to mean not a temporary incapacity for work produced by the initial trauma, but rather the serious injury incapacity which becomes known when events demonstrate that the worker is suffering from a serious long-term impairment or loss of body function; such incapacity not being confined to incapacity for work.”[84]
[84] See Edwards v McSaveney [2005] VSCA 252, paragraphs 20,21
103 In each application, Mrs Elmas claims a serious injury in respect of a particular body part. She also complains of symptoms in other parts of her body, which are not the subject of either application. Each body function must be considered independently of the other in evaluating the loss or impairment of function claimed: see Buchanan J A in Lu v Mediterranean Shoes Pty Ltd and others[85].
[85] [2000] 1 VR 511 at 512
104 To succeed in the application under s135A, Mrs Elmas must establish that she has sustained a serious injury arising out of or in the course of, or due to the nature of her employment with Eatmore before 12 November 1997[86].
[86] s135A(1) of the Accident Compensation Act
105 In each application, whether Mrs Elmas has a serious injury is to be determined on the evidence at the time of the hearing.
106 It is for Mrs Elmas to demonstrate that her work before 12 November 1997 was a significant contributing factor to each claimed injury: see State of Victoria v Collins[87], where the Court of Appeal interpreted s135A(2)(b) of the Act.
[87] [1999] 1 VR 215
107 Winneke P, with whose reasons and decision Brooking and Chernov JJ A concurred, discussed s135A(2)(b)[88]:
“The subsection clearly contemplates that some injuries are “progressive” and that their ultimate consequences to the victim will be the measure of their “seriousness”… In other words the “incapacity” of which s. 135A (2) (b) speaks is the incapacity which becomes known when the injury is demonstrated to be a “serious” one within the meaning of subs. (19). Not only does s. 135A (2) (b) draw a clear connection between the “serious injury” and the incapacity arising from that injury but the evident purpose of s. 135A is to entitle workers to recover damages for “serious injuries”. That purpose would, I think, be frustrated if the word “incapacity” was to be given the restrictive meaning for which the appellant contends…The “seriousness” of an injury leading to the type of incapacity to which, in my view, s. 135A (2) (b) refers might, in some cases (e.g., loss of limb or sight) be immediately apparent upon the happening of the injury; but in many other cases it will be anticipated that appropriate treatment and management will preclude the injury from becoming “serious”, in the sense that it will forestall serious long-term incapacity. In these cases the nature of the incapacity will not become known until the facts demonstrating that the injury is “serious” are themselves known.”
[88] [1999] 1 VR 215 at 221-222
108 These issues were also considered by the Court of Appeal in Angelatos v Museum of Victoria[89], and in R J Gilbetson Pty Ltd v George Skorsis [90].
[89] [1999] 3 VR 157
[90] [2000] VSCA 51
109 Mrs Elmas’ second application is governed by s134AB(1) and (2) Accident Compensation Act, which, so far as is relevant provides:
“(1) A worker who is, or the dependants of a worker who are or may be, entitled to
187 Mrs Elmas claims that she first experienced symptoms in her right shoulder in late 1997, and first sought medical advice and treatment for her right shoulder in December 1999. After Mrs Elmas complained to Dr Wegrzynowski of shoulder and neck pain in early April 2000, Dr Wegrzynowski certified her fit for modified duties. In late December 2002, Mrs Elmas reported to Dr Wegrzynowski that her right shoulder was increasingly painful, a complaint she repeated again in October 2003, one day after returning to work from an overseas trip[144].
[144] See the report of Dr Wegrzynowski, PCB pp51-52
188 Although Dr Wegrzynowski’s opinion was that Mrs Elmas’ injuries were related to her occupation as a process worker, she did not express an opinion as to what period or periods of time during her employment are implicated in the causation of any of her injuries. Dr Harkness associated Mrs Elmas’ work with the strain of both of her shoulders, and the partial right supraspinatus tendon tear and right subacromial bursitis he diagnosed in June 2006[145]. Dr Harkness did not assign responsibility over time of employment for the injuries he diagnosed in Mrs Elmas. Although he assessed Mrs Elmas’ capacity for work as limited, and thought she was and would remain unfit for repetitive and process work, he did not differentiate between the condition of either of her wrists, or her shoulders or her neck in that assessment of work capacity.
[145] See the report of Dr Harkness, PCB p63
189 Dr Stockman also diagnosed a partial right tear of the supraspinatus tendon, and thought it likely that if the left shoulder was examined radiologically, there would be similar findings. He thought that the rotator cuff injuries, especially in Mrs Elmas’ right shoulder were caused by her work over the years, particularly between 12 November 1997 and 20 October 1999, but also with a significant exacerbation after 20 October 1999 until Mrs Elmas stopped working in February 2004. He did not consider her fit to resume her pre-injury employment, because this was incompatible with the risk of recurrence of her bilateral carpal tunnel syndrome and the bilateral rotator cuff lesions [146].
[146] See the report of Dr Stockman, PCB pp58-59
190 Mr Brearley’s diagnosis of Mrs Elmas’ shoulders was similar to that of Dr Stockman. He thought that Mrs Elmas could perform light work only, because of the condition of both of her shoulders, and that if she resumed her previous work, the symptoms in her shoulders would probably recur. Mr Brearley considered that the work undertaken by Mrs Elmas after 20 October 1999 contributed significantly to her injuries[147].
[147] See the reports of Mr Brearley PCB pp68-69; 74
191 Given that on the history he obtained from Mrs Elmas, the symptoms in her right shoulder began in about April 2001, this opinion is understandable. However, Mrs Elmas claimed that she first experienced right shoulder symptoms in late 1997[148], and that she reported to Dr Wegrzynowski shoulder pains in August 1999[149], the opinion of Mr Brearley on this issue cannot be relied on by Mrs Elmas, as the facts supporting his opinion are different from the evidence before the Court, which evidence I have accepted, namely, that the onset of right shoulder symptoms first occurred long before April 2001.
[148] See transcript p11
[149] See the report of Dr Wegrzynowski, PCB p46
192 It is not possible to say what conclusion Mr Brearley would have reached on work contribution to the right shoulder injury had he been informed of these facts.
193 Mr Shannon considered that Mrs Elmas had degenerative change in her right shoulder, which slightly reduced the function of that shoulder. He considered that her left shoulder was normal. Mr Shannon regarded the degenerative changes in the right shoulder as likely to have taken place in time, independently of the work Mrs Elmas performed, although he accepted that repetitive work could aggravate that condition. She was able to perform light duties in his opinion[150].
[150] See the report of Mr Shannon, DCB pp35-36; 37B-37C
194 Mrs Elmas must persuade me that she has suffered a serious injury to her right shoulder to which her employment after 20 October 1999 materially contributed. The starting point is to decide when was her right shoulder injured.
195 On her own evidence, Mrs Elmas began experiencing pain and symptoms in her right shoulder in late 1997. Certainly, by August 1999, she sought medical attention from Dr Wegrzynowski for her right shoulder. There is other evidence of Mrs Elmas receiving injections into her right shoulder in about 1997-1998[151]. Mrs Elmas has also claimed that her right shoulder began to trouble her in April 2001[152].
[151] See transcript pp21-22
[152] See paragraph 204 above
196 Although there are some differences of medical opinion as to whether the rotator cuff pathology in the right shoulder was caused by the repetitive nature of the work Mrs Elmas performed, or whether it was developmental, there is the concession by Mr Shannon that the nature of the work of Mrs Elmas would aggravate the degeneration.
197 I regard this concession as at least supporting the proposition that there is an association between the type of work performed by Mrs Elmas and the damage to her rotator cuff.
198 Can it be argued that the work being performed from 20 October 1999 materially contributed to Mrs Elmas’ right shoulder injury, that is, to the injuries described by Dr Harkness, Dr Stockman and Mr Brearley? I am not satisfied that such a conclusion is open on the evidence.
199 I find that the injury to Mrs Elmas’ right shoulder resulted from the repetitive nature of her work, possibly beginning before 12 November 1997, but probably due to the work she performed after that date and before her first consultation with Dr Wegrzynowski in August 1999. I am satisfied that within that period, she had some pain and symptoms, which led to the injections into her right shoulder[153]. I infer from her resort to this medical treatment and that from Dr Wegrzynowski in August 1999 that the injury was then manifest, albeit that its origins began before that time.
[153] See paragraph 208 above
200 It is for Mrs Elmas to demonstrate that her injury occurred during the relevant period of employment, that is, after 20 October 1999. Given that she was performing much the same type of work both before and after 12 November 1997 and until her consultation in August 1999, I do not accept that the injury was materially contributed to by employment after 20 October 1999.
201 The claim for a serious injury for her right shoulder fails, for that reason.
202 Finally I consider the claim for a serious injury to Mrs Elmas’ neck. That too fails because I am not persuaded that on the evidence that there is an injury to Mrs Elmas’ neck that has been diagnosed, or that Mrs Elmas has demonstrated at what period between the commencement and end of her employment with Eatmore and Baiada any such injury may have arisen.
203 It follows that Mrs Elmas fails in the second application.
204 I propose to dismiss the first application and the second application, with costs.
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