Filliponi v Murray Goulburn Co-op Company Ltd
[2011] VCC 1504
•10 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03077
| KERRY JUNE FILLIPONI | Plaintiff |
| v | |
| MURRAY GOULBURN CO-OP CO LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 1 and 2 August 2011 |
| DATE OF JUDGMENT: | 10 October 2011 |
| CASE MAY BE CITED AS: | Filliponi v Murray Goulburn Co-op Company Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1504 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – pain and suffering only – injury to the neck – injury to the shoulder – application granted for injury to the neck – application dismissed for injury to the shoulder.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr R Middleton SC with | Wisewould Mahony |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body functions relied upon in this application are separate injuries to the neck and the left shoulder. The plaintiff commenced to have symptoms in the neck and shoulder in about September 2005.
6 The plaintiff relied upon two affidavits, sworn 2 March 2010 and 17 June 2011. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material that was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.1
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant.2
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.3
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: “… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering;
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d)
under s.134AB(38)(c) of the Act: an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked, and
as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:4
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”5
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”6
12 The test for “serious”, as set out in paragraph (b) and (c) of s.134AB(38) of the
S.134AB(19)(a) of the Act
S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
Barwon Spinners (op cit) at paragraph [33]
[2009] VSCA 181
ibid at [42]
Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
Act, is sometimes referred to as the “narrative test”.
13 Section 134AB38(b) of the Act provides:
“…the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.”
14 So far as the evidence allows; the Court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis. The Court must therefore exclude any pain and suffering consequences which result from or are a manifestation of a chronic syndrome or disorder.[7]
[7] Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46
15 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[8]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8] S.134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
16 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range. Further, it is a case which commenced as an organic injury and has moved into a chronic pain syndrome (paragraph (c) of the definition of “serious injury”).
17 In addition, the plaintiff cannot aggregate the consequences of the left shoulder and neck together to satisfy the test.
The Plaintiff’s Evidence
18 In her affidavits sworn on 2 March 2010 and 17 June 2011, the plaintiff deposed that:
• She commenced employed with the defendant in 1999. •
In September 2005, she developed pain in her neck, left shoulder and arm when lifting 20-kilogram blocks of cheese. She consulted Dr Hill and Dr Chehade, and returned to work on modified duties. In May 2006, she returned to full duties, but suffered neck and left shoulder symptoms and low-back pain. In December 2006, she commenced light duties. In June 2007, she had an ultrasound-guided injection in her left shoulder, which provided some relief. In June and July 2007, she took annual leave and when she returned was told light work was no longer available. She has not worked since.
•
She suffers constant left shoulder pain, which is worse with use, movement and activity, such as stretching and repetitive use of her left arm. Her left arm feels weak. She suffers chronic ongoing neck pain, generally in the back and side of her neck and running into her shoulder blades. It is worse on the left side. The pain radiates into her jaw and ears. She has limited movement of her neck and suffers headaches. She has difficulty getting to sleep and wakes during the night in pain. She feels anxious and depressed.
•
She was referred for an inpatient management course for three weeks which improved the flexibility of her neck and left shoulder.
•
She sees Dr Chehade, general practitioner, about once a month. She takes Lyrica, Zydol, Panadol Osteo, Valium and for her depression, and Pristiq.
•
She has difficulty with domestic activities, including washing, cooking, vacuuming and gardening. She can not carry heavy shopping bags and is restricted in activities with her grandson. Driving and prolonged standing increase her pain. She can no longer go horse riding, camping or water skiing. She continues to walk her dog, but finds it difficult. As a consequence of her physical restrictions, she has gained weight.
•
She continues with massage treatment which she finds helpful and for which she pays for herself at $36 per session, but because of the cost, she cannot have sessions as often as she would like.
The Plaintiff’s Evidence in Cross-Examination
19 The plaintiff was cross-examined and gave the following pertinent evidence:
•
Until September 2005, she had no problems with her neck or shoulders. In March 2007, she was working 12-hour shifts, four days on, four days off, and her return to work was successful. Her treatment consisted of a massage once a week and she was taking the occasional Voltaren, Valium or Panadol. She said in the middle of the year in 2007, those employed in the cheese room were put off work for five weeks.
•
She indicated that the pain she suffers is at the back of her neck and it goes down into the shoulder blade and into the shoulders on both sides, but mainly the left shoulder.
• She said she had injections into her left shoulder, she thought, in 2007. •
She had a fall at work in 2007 and landed on her left side. She agreed it was not referred to in her affidavits. She said she saw Dr Todd Hunter once in respect to a pain management course at Wodonga. She thought Dr Todd Hunter arranged the pain management at Wodonga.
•
At the time she swore her affidavit the only horse the family owned was ‘Misty’ and it was owned by her daughter and it was sold two to three months ago.
•
She agreed that in 2010, everyone pitched in to care for the horse. She was unable to remember when she last went boating on the Murray River. She thought she stopped water skiing around 2005. She did not think she was water skiing in January 2007.
•
She did not think she had been camping for a long time. The last time she went camping could have been 2004 or 2005.
•
She said she did not think that she had taken Valium for sleep problems in the past. She said she had low-back pain and saw Mr Brighton Knight on two occasions. She said the back is not a problem anymore and she did not take medication for it.
•
She did not think she had problems with her weight prior to September 2005. She was having trouble with her sleep prior to 2005 because she was doing shift work. She then said in June 2005, she was seeking Valium for a muscle relaxant. She said she used to walk her dogs along the river.
•
She agreed she saw Dr McDougall in January 2005 with a history of overweight and stress in respect to separation from her partner. She said she thought it was her evidence that her weight has only been a problem since September 2005.
• She said she picks up her grandson, but is always sore afterwards. •
She was shown a film and agreed that she was seen holding her grandson and she was shown pushing a car, but she said she really was not pushing. Her arms were on the car, but the other people were doing the pushing. She also agreed that the video showed her with her right arm on the bonnet and she was seen with her left arm fully extended, on the top of the bonnet. She said she did not remember that. She then agreed that might be so.
•
She agreed she had shown the Court at the beginning of her case that she was unable to lift her left arm above her shoulder, which was inconsistent with what was shown in the film. She agreed that she was seen in the film moving her neck without restriction, both left and right, but she said she would have taken her medication.
20 In re-examination, the plaintiff said:
•
Her hand was badly bruised when she fell in April 2007. She returned to work until the cheese room was put off for five weeks. She did not go back to work in 2007, because she was told there was no work for her and she was under review.
•
She gained relief for about three months after receiving an ultrasound fluid injection into her left shoulder.
• She has headaches every night, which wake her up. •
She said the chronic neck pain is a throbbing pain with headaches. It is also burning.
•
She said before she suffered her injury, she used to ride her horse once per fortnight down the river and on weekends for approximately half to three-quarters of an hour, travelling approximately five to ten kilometres.
•
She has not been boating since the injury because of the wake which jars the boat. She had not water skied because of her shoulder pain. She would have water skied four times a month before the injury.
•
Nearly every night she wakes with headaches and takes Valium and Panadol Osteo. She said before she suffered the injury, she weighed 74 kilograms. She now weighs 86 kilograms.
Investigations
21 On 10 October 2005, x-rays of the cervical spine, dorsal spine and lumbar spine were normal.
22 On 4 December 2006, a bilateral shoulder ultrasound, left and right shoulder showed mild left-sided rotator cuff disease. No underlying tear. Bilateral shoulder x-ray of the left and right showed minor widening of the right and left AC joint spaces. Query underlying related to previous low-grade injury.
23 On 21 December 2006, a CT scan of the neck concluded:
“Study within normal limits. No significant displacement, or neural
compression identified at any level.”
24 On 4 October 2007, an MRI scan of the left shoulder concluded:
“Mild degenerative changes of the AC joint. Shoulder MRI scan
otherwise negative. No rotator cuff tears or supraspinatus bursitis.”
25 On 23 May 2007, an MRI scan of the cervical spine was normal.
26 On 3 April 2008, an MRI of the cervical spine showed:
“Straightening of the normal cervical lordosis, especially in the upper cervical spine. No annular tears. There are minor central posterior disc bulges at C5-6 and C6-7. No disc bulge or protrusions at the other levels of C2-3 to C7-T1. No central canal or exist foraminal stenosis. Facet joints all appear well preserved. Cervical vertebrae alignment is otherwise satisfactory. No cervical ribs. Visualised paraspinal soft tissues are unremarkable.”
27 On 8 January 2009, an MRI scan of the lumbar spine concluded:
“(1) Mild broad based disc displacement, L4-5, with a left lateral foraminal component. No foraminal encroachment detected, however, at any level of significance. No central canal stenosis at any level. (2) Mild facet joint arthrosis bilaterally at L4-5 and moderate on the
right at L5-S1.”
28 On 5 May 2010, an MRI scan of the cervical spine appeared normal:
“No cervical canal or foraminal compromise. There are very minor left- sided uncovertebral joint osteophytes at C5-6; the neural foramina are patent.”
The Plaintiff’s Medical Evidence
29 In a letter of 11 June 2009, Mr Ian Critchley, orthopaedic surgeon, reported to the plaintiff’s solicitor that he had seen the plaintiff at the request of her general practitioner in April 2007. On examination, the range of motion of her spine was significantly reduced in all directions by pain. Her left shoulder had a reasonable range of motion, but a positive impingement sign was present also in the right shoulder. There was no significant local tenderness. It was his view that the plaintiff had a physically demanding job and had been having symptoms in both her shoulders and her cervical spine, as a result of the heavy nature of her work, without any specific pathology.
30 He noted that she had a recent injury with a fall on the point of her shoulder, which he thought had injured her AC joint. He did not expect her to have long-term problems with her AC joint injury. He expected that the majority of her symptoms would settle if she stopped handling 20- kilogram boxes of cheese.
31 In September 2007, Dr Philip Frawley, orthopaedic surgeon, saw the plaintiff at the request of her general practitioner in relation to her left shoulder. He noted that the pain had been present for two years and was exacerbated in April when she had a fall and landed on her left shoulder. He noted that she was quite tender over her rotator cuff insertion laterally. He said her active movement was slightly restricted in all directions secondary to pain; loading her supraspinatus reliably reproduced her pain. The other elements of her shoulder appeared to be intact. He said her neck demonstrated a full range of pain-free movement. He reported that the x-rays of the shoulder looked normal. He suspected that the plaintiff had a rotator cuff tendon tear in her left shoulder and referred her for an MRI scan in order to provide a comprehensive opinion regarding her problem.
32 In March and April 2008, Mr Terrence Hillier, orthopaedic surgeon, saw the plaintiff at the request of Dr Frawley in relation to her neck injury. He said that the plaintiff had quite free movement of her shoulder and the rotator cuff issue was in reasonable abeyance. He said she had discomfort as she extends her head, suggesting that she may be getting some chronic apophyseal joint pain. He arranged to have a weight-bearing MRI scan performed, which demonstrated that she had a sound structure in her cervical spine. He said that her neck had tightened up at the C5-C6 level, with loss of normal cervical lordosis, consistent with her having developed some adhesive capsulitis. He thought the only way to unlock this was to carry out a rotational stretch under a general anaesthetic, which would require a stay in hospital for some two days. The plaintiff sought a second opinion from Mr Richard Bittar, who did not approve of the treatment and, accordingly, the treatment was not pursued.
33 Mr Hillier reported in June 2010 that the latest MRI scan was pleasing and confirmed that at no stage had the plaintiff suffered any structural damage to discs, cervical spinal cord or the vertebral bone. He felt this fitted with his ongoing diagnosis of a longstanding, chronic soft tissue injury which has seen her tighten up in the neck. In a report to her general practitioner on 1 September 2010, Mr Hillier felt, with conservative treatment, she should improve. He added Lyrica to her medication.
34 In February 2011, Mr Hillier reported to the plaintiff’s solicitor that he had not seen the plaintiff since September 2010. He was satisfied that her cervical spine was structurally sound. He said she had a basal neck pain, suggesting some persisting adhesive capsulitis in the lower facet joints, and noted that she had relatively good neck movement. He thought she was capable of performing her normal work.
35 On 10 September 2010, Dr Alfred Chehade, general practitioner, reported to the plaintiff’s solicitor. He said the investigations, in particular the MRI, showed no structural damage to the discs, cervical spine tract or the vertebral bone. He adopted Mr Hillier’s diagnosis of longstanding chronic soft-tissue injury. It was Dr Chehade’s view that the plaintiff’s left shoulder and neck pain were work-related, that she could not return to pre-injury duties and, after a long period of time not working, it was uncertain whether she would undertake any light or suitable duties.
36 Mr John O’Brien, orthopaedic surgeon, saw the plaintiff at the request of her solicitor in November 2008 and August 2009. In November 2008, he noted that the plaintiff had undergone a number of investigations without any specific diagnosis and she was not responding to conservative treatment. He said her physical signs were subjective and predominantly related to the cervical region, although there was some variable restrictions of movement and definite extensive area of local tenderness. He could not find specific shoulder pathology. He described her as suffering a Regional Pain Syndrome of the neck, left shoulder and arm pain. He thought the plaintiff required management of her chronic pain and suggested a multidiscipline pain management program. He thought it highly likely that the plaintiff was totally and permanently incapacitated. He said the plaintiff’s general activities are significantly restricted and there was permanent limitation of domestic, social and recreational pursuits.
37 In August 2009, he said that her physical signs remained subjective and did not demonstrate clear definitive pathology in the cervical spine, lumbar spine, or shoulder. Further, the symptoms and signs demonstrate a Chronic Pain Syndrome which was being influenced by psycho-social factors. He thought her prognosis was relatively poor. He noted that the plaintiff described a substantial distribution of pain, which really indicated a significant level of disability. He thought it was possible her situation was permanent, although he was optimistic of a positive result from a multidiscipline pain management program, which would enable her to contemplate light duty employment on a limited hours basis. He thought she was restricted in her general, domestic, social and recreational activities, which was likely to be a permanent situation.
38 On 20 May 2011, Mr Kenneth Brearley, surgeon, medically examined the plaintiff at the request of her solicitor. On examination, he noted no tenderness or deformity in the neck and said she had a full range of movement. In relation to her left shoulder, he said there was no obvious wasting. There was moderate limitation of movement and the remainder of her left arm was normal. There was no neurological defect in either arm. It was his opinion that there was little concrete evidence to substantiate a diagnosis of her left shoulder pain or the pain she had in the neck. He noted that all investigations showed no significant abnormality. He thought it was probable she had a soft-tissue injury of the neck, resulting from repetitive trauma caused by heavy work with her employer. He said, in relation to the left shoulder, there was no tear of the rotator cuff, nor any other significant finding other than tendinopathy. He thought the tendinopathy would have been produced over a long period by repetitive minor or minimal trauma, which would have been caused with the work she was doing with her employer. He accepted that the left shoulder and neck injuries would have precluded her in relation to her social, domestic and recreational activities, which are likely to continue for the foreseeable future. In coming to this assessment of the consequences of the plaintiff’s injury, Mr Brearley combined the two injuries, which is not permissible. He thought her prognosis was reasonably good and he said there was no good reason why she should not be able to return in the foreseeable future to suitable work, initially part time, and possibly increasing to full time.
39 In July 2011, Associate Professor Richard Bittar saw the plaintiff at the request of the plaintiff’s solicitor. It was his diagnosis that the plaintiff had symptoms related to aggravation of cervical spondylosis and cervicogenic headaches. He noted that she had a left shoulder condition, which was beyond his area of expertise. He thought her work was the significant contributing factor. It was his view that she would suffer from ongoing pain and disability into the foreseeable future. He thought she needed further investigation and treatment by a pain specialist. He thought her headaches may be amenable to occipital nerve stimulation.
40 It was his view that domestic activities are limited. She cannot engage in significant cleaning (vacuuming and scrubbing) and her ability to engage in gardening is limited. She socialises less due to pain. He said she no longer horse rides, water skis or camps. Her physical cervical spine injury and impairment did restrict the plaintiff in relation to social, domestic and recreational activities, which he thought would continue for the foreseeable future. He thought she would be precluded or restricted in relation to her employment or activities involving lifting, standing, as well as repetitive sudden or extreme neck movements. He considered that such incapacity will continue for the foreseeable future. He thought, in theory, she had a physical capacity to perform sedentary work on a part time basis. However, taking into account her age, education, training and skills, it is extremely unlikely that she will be able to procure such a position and carry out such a role in a regular and reliable fashion.
The Defendant’s Medical Evidence
41 Dr James Rowe, specialist occupational physician, saw the plaintiff at the request of the defendant’s insurer in November 2005. It was his opinion the plaintiff had bilateral rotator cuff tendonitis and aggravated degenerative osteoarthritis of the cervicothoracic vertebrae. He noted that the injury had occurred over approximately eighteen months. He thought her work was a contributing factor and thought she could return to work immediately.
42 In March 2007, he noted she was working full-time. He did not think she required ongoing treatment, apart from an occasioned analgesic and five or six massages per year. He thought her condition had improved considerable since he last saw her. Dr Rowe reviewed the plaintiff in March 2007. He thought it was within her capacity to lift a 10-kilogram block from the production line or from the floor to the production line.
43 Mr Paul Kierce, orthopaedic surgeon, performed an assessment on the plaintiff in September 2008. He diagnosed a left rotator cuff tendinopathy and aggravation of minimal cervical spondylosis. He accepted her injuries were work related. He said the pain resulting from her shoulder condition and neck condition has incapacitated her in respect to her work duties and has affected her ability to do her housework and to resume horse riding. He considered the left shoulder condition, together with the right shoulder and neck disorders, prevented her from returning to her pre-injury employment. He thought she had suffered an aggravation of minimal underlying cervical spondylosis. He said ninety per cent of her symptoms of neck pain were due to her employment injury.
44 In December 2009, Mr Michael Shannon, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s insurer. He noted that the plaintiff had sustained soft tissues injuries to her neck, left shoulder, girdle and left wrist.
45 Mr Ian Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitor in June 2010 and again in July 2011. It was his view that the plaintiff had disproportionate symptoms of neck pain and restriction of movement. He thought in the left shoulder she had symptoms and signs of mild tendinosis or degeneration of the rotator cuff tendons, with possibly an associated bursitis manifesting as some shoulder pain and restriction of movement. He said the complaints with respect to pain in the left shoulder were out of proportion to the physical findings. He could not identify other factors which would be contributing to the plaintiff’s condition. He thought she demonstrated functional signs of impaired neck movement of a severe degree, which he believed had no organic basis. He accepted she had some pain and restriction of the left shoulder movement, but the pain level seemed out of proportion to the pathology evident clinically and radiographically. He thought she had the capacity to undertake certain duties; namely, meter reading, possibly stock taker, export coordinator, sales professional/assistant and unrestricted work as a console operator.
46 In a further report in August 2011, Mr Jones responded to the report of Associate Professor Bittar, who took the view that the x-ray changes were constitutional aging in the cervical spine. Mr Jones said he believed she had recovered from the affects of any possible aggravation. He did not believe her work had caused the MRI scan changes or the symptoms of which she currently complained.
47 The defendant relied upon the clinical records of the plaintiff’s general practitioner which extended over the period July 2004 to May 2008. There was a summary of the medication prescribed from February 2003 to December 2008. Prior to September 2005 the plaintiff was being prescribed Valium. The plaintiff was prescribed Valium in January 2004 to September 2005 on seven occasions.
Video Surveillance
48 The Court was shown a video of the plaintiff taken over 30 hours in 2010 and 2011. She was only observed in 2011 over a period of 5 hours. All that can be inferred from the 30 hours of surveillance is that on five hours the plaintiff was sighted. I accept that a video is a snapshot in time and that a plaintiff with injuries, as the plaintiff described, may have days when she is able to do more activities than on other days. The video showed the plaintiff lifting her grandson, who was aged three. It showed her pushing a vehicle with both arms extended, admittedly with the assistance of a number of men. It also showed her leaning or stretching out her arm, in a position that she had indicated in Court was not possible.
Credit of the Plaintiff
49 The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw.
50 On occasions the plaintiff had difficulty in answering questions, particularly in relation to the horses she and members of her family had owned. She was vague in her description of the pain she suffered. The plaintiff did not adequately explain the film. The plaintiff made concessions.
51 I did not form the view she was deliberately misleading the Court, but thought her presentation was due to unfamiliarity with the need to be precise. I took into account the fact that she had very limited education, having left school after form three. Overall I accepted that she was truthful, but I came to the view that she exaggerated the consequences of her injuries.
Analysis of the Evidence
52 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of her employment with the defendant in respect to the neck and the left shoulder. All of the medical witnesses accepted the injuries to the neck and left shoulder were work- related.
53 Here, there are two body parts relied upon, the neck and the left shoulder. If injuries are the result of separate events, each giving rise to a cause of action for damages, each injury is to be considered separately.[10]
[10] Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at 512 to 513
54 It is important to first identify 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 a “serious” and permanent injury. In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes must be considered separately. Counsel for both parties accepted that the injuries were to be considered separately.
55 Counsel for the defendant submitted that the plaintiff suffered an organic injury, which has now become a chronic pain syndrome and is now a paragraph (c) injury under the definition of serious injury.
56 Two doctors expressed views on this aspect. Mr O’Brien, orthopaedic surgeon, said that her symptoms in relation to the neck and shoulder demonstrated a chronic pain syndrome which was being influenced by psycho-social factors.
57 Mr Ian Jones, orthopaedic surgeon, accepted that she had symptoms and signs of mild degenerative disease affecting the spine and the left shoulder, but said given the extensive radiological investigations, her symptoms and signs appeared to be out of proportion to the identified pathology. He said he could not identify any adverse psychological reaction to her condition and it would be appropriate to obtain the opinion of a psychologist or psychiatrist. No such opinion was sought.
58 No other doctor raised this issue. There was no medical evidence from a psychiatrist to suggest the plaintiff was suffering a mental health condition. Given the plaintiff’s evidence that she was consulting her general practitioner on a monthly basis it would be expected that if her mental health was an issue the general practitioner would have referred to it and referred the plaintiff for appropriate treatment. I accept that the plaintiff’s injuries are organically based.
59 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[11]
[11] S.134AB(38)(h)
60 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[12]
[12] (supra) at paragraph [70]
61 The Court must examine the consequences of a physical impairment in the context of pain and suffering.
62 In considering the consequences of a physical impairment in the context of pain and suffering, I have excluded any consequences of a psychiatric or psychological nature.
63 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering.[13]
[13] S.134AB(38)(b) and (c)
64 Accordingly, it is appropriate for me to consider whether the plaintiff has satisfied the narrative test.
The Narrative Test
65 Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
(i) pain and suffering-
when judged by comparison with other cases in the range of possible
impairments or losses of a body function… respectively.”
66 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless … the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function… fairly described as being more than significant or marked, and as being at least very considerable.”
67 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[14] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[14] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
68 I shall consider the neck injury first.
69 The only doctor to provide a report which considered the consequences of the neck injury was that of Associate Professor Bittar, neurosurgeon, who examined the plaintiff at the request of her solicitors in May 2011. He commented only upon the neck injury. He accepted the plaintiff had suffered an aggravation of cervical spondylosis and that as a result of the neck injury, she suffered pain and that the consequences of the physical injury restricted her in relation to her social, domestic and recreational activities, which he said will continue for the foreseeable future. He said she socialises less due to the pain, her recreational activities are restricted as she no longer rides horses, water skis or goes camping. Her domestic activities are limited; her ability to engage in significant cleaning, vacuuming and scrubbing and heavy gardening is limited. Further, her work capacity is limited. In assessing the plaintiff’s impairment he specifically excluded any functional overlay when considering the consequences of the neck injury. The consequences referred to by Associate Professor Bittar are the consequences that she told the Court and doctors about.
70 I accept Mr Shannon’s view that 90 per cent of the plaintiff’s neck injury is work related.
71 The other medical reports failed to satisfactorily consider the consequences of each of the two injuries separately.
72 I accept that the plaintiff has been complaining of injury to her neck and receiving treatment since September 2005 a period of six years. Whilst a number of doctors have not considered the permanency aspect, Associate Professor Bittar accepted the consequences were permanent with respect to her social, domestic and recreational activities. In view of Associate Professor Bittar’s findings and the fact that she has suffered the consequences for six years, I am satisfied that the impairment of the neck is permanent, that is likely to continue into the foreseeable future. In reaching that view I have taken into account the plaintiff’s evidence, the level of medical treatment and the fact that she is no longer working. She said that apart from when her two children were young, she has been in employment, performing manual work in factories, shops and as a cleaner. I accept that she has a reduced manual work capacity as a result of her injury to the neck. That is a consequence which I can take into account in relation to pain and suffering.
73 What was in issue was the consequences of the plaintiff’s neck injury and whether they met the test of seriousness for pain and suffering, in that they could be considered to be “more than significant or marked” and as being at “at least very considerable” when compared with other cases in the range.
74 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission and O’Day v Dennis [1998] 1 VR 702:
“… many disturbances are considerable, in the sense that they are
important or substantial, without being very considerable.”
75 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of a “very considerable” magnitude.
76 It is accepted that the plaintiff has residual symptoms with her neck. Taking all the evidence into account, I am satisfied, on the balance of probabilities, having viewed and considered the surveillance film, which I find is not incompatible with the impairment to the neck, and in light of the evidence as whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a neck injury at work in September 2005. I accept the injury has had consequences to her, I am satisfied that when judged by comparison with other cases in the range of possible impairments, that the injury can “fairly be described as being more than significant or marked and as being at least very considerable”.
77 I now consider the left shoulder injury.
78 All doctors accepted that the plaintiff had an injury to her left shoulder which was work-related. The medical evidence was that the plaintiff has suffered a possible rotator cuff tendon tear (Dr Frawley), painful left shoulder (Dr J O’Brien) and a rotator cuff tendinopathy (Mr Kierce, Mr Brearley, Mr Critchley and Mr Ian Jones).
79 The treatment the plaintiff had consisted of two injections of cortisone into her left shoulder under ultrasound guidance, the most recent being 2007. In more recent times her treatment has been limited to anti inflammatory and analgesic medication and Valium.
80 The plaintiff told Mr Critchley that the left shoulder prevented her from performing some of her tasks at work; in particular, lifting 20-kilogram blocks of cheese which he thought was permanent. She made no other complaints about how her shoulder affected her activities of daily living. Mr O’Brien confirmed that the plaintiff complained of pain in the left shoulder.
81 In 2008, she told Mr Kierce she had “constant pain” in the left shoulder which was aggravated by hanging out clothes, washing her hair, tying up her hair, any lifting and holding arms out in front of her. She has to do her bra up in front of her as she cannot reach behind with any comfort. He accepted her shoulder condition affected her ability to do house work and ride a horse.
82 In 2009, the plaintiff complained to Mr Shannon of soreness in the left shoulder extending into the upper arm. He accepted the plaintiff had minor degenerative change in the left shoulder. He described her injury as a soft tissue injury to the left shoulder girdle. He expressed no view on the consequences of the injury on her activities of daily living.
83 In 2011, the plaintiff told Mr Brearley that she has pain in the left shoulder when she used the arm for any significant purpose. She said she was unable to do any work above shoulder height and had limitation of shoulder movements. She had difficulty doing any lifting beyond 5kg and repetitive use of the left hand and arm cause shoulder pain. Mr Brearley combined the consequences of the neck and left shoulder in considering permanency and the effects on her daily life, which is not permissible. He expected that she would be able to return to suitable work in the foreseeable future.
84 In 2011, the plaintiff complained to Mr Jones of “persisting pain symptoms” in her left shoulder with less severe symptoms involving the right. He accepted the plaintiff did have some pain and restrictions of the left shoulder movement but said the pain level was out of proportion to the pathology. He did not express a view as to the consequences of the injury on the plaintiff’s daily life.
85 The video surveillance did show the plaintiff using her left arm fully extended on the raised bonnet of a car and pushing a car with others with both arms extended. I accept that the plaintiff’s capacity to use her left arm was greater than she indicated to the Court and the doctors whom she saw.
86 Whilst no doctor has expressed an opinion on permanency, no doctor has suggested the pain will resolve. It is clear that the left shoulder pain has persisted since 2006-2007. Accordingly, I would infer that the pain will be with the plaintiff for the foreseeable future. The plaintiff had two injections, the last being in 2007. The plaintiff’s treatment since 2007 has amounted to anti inflammatory and analgesic medication. The plaintiff is right hand dominant. On the basis of the plaintiff’s complaints to doctors, the consequences have had a limited affect on her daily living.
87 Taking into account the consequences which the plaintiff has satisfied me are associated with the injury to her left shoulder, and considering those consequences in the context of the range of possible impairments which arise in the broad spectrum of accident-related injury, I am not satisfied that it is appropriate to describe the plaintiff’s impairment as being significant, marked or considerable. In these circumstances, I am not satisfied that the plaintiff has made out her entitlement to the leave which is sought for the left shoulder.
Conclusion
88 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendant seeking damages for pain and suffering only for an injury to her neck as a result of her employment with the defendant.
89 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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