Fwati v Cumberland View Aged Care Services Pty Ltd
[2015] VCC 1597
•13 November 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05436
| SHIRLEY FWATI | Plaintiff |
| v | |
| CUMBERLAND VIEW AGED CARE SERVICES PTY LTD (ACN 123 982 187) | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2015 | |
DATE OF JUDGMENT: | 13 November 2015 (Revised) | |
CASE MAY BE CITED AS: | Fwati v Cumberland View Aged Care Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1597 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder injury
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for pain and suffering consequences of injury sustained by her in the course of her employment with the defendant. Application in relation to pecuniary loss damages dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with Mr R Ajzensztat | Zaparas Lawyers |
| For the Defendant | Mr D Masel SC with Ms S C Bailey | Russell Kennedy |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages with respect to the pain and suffering and economic loss consequences of an injury to her right shoulder sustained by her in the course of her employment with the defendant.
2 In the application, the relevant impairment of function relied upon is that of the right arm.
3 In the proceeding, the plaintiff relies upon two affidavits sworn by herself on 1 July 2014 and 30 October 2015 respectively. In addition, the plaintiff gave viva voce evidence, and was cross-examined. Otherwise the parties rely upon medical and like evidence, together with surveillance evidence tendered by them.
4 The content of the plaintiff’s affidavits and the viva voce evidence of the plaintiff is a matter of record and I do not propose, in the course of these reasons, to set out the detail of that material unless it is necessary to give context to my reasons.
5 It is not in issue that the plaintiff suffered an injury to her right shoulder in the course of her employment with the defendant which manifested itself on 7 December 2012.
6 Neither is it in issue that on 8 August 1999, the plaintiff was involved in a motor vehicle collision, in the course of which she suffered an injury to her cervical spine.
7 Whilst the plaintiff at times in the course of her evidence took issue with the fact as to whether her motor vehicle accident also caused her to suffer symptoms which extended into her right shoulder and arm I am satisfied that the evidence establishes that it did, and that those symptoms were caused either by reason of:
(i)The referral of those symptoms by reason of an injury to the cervical spine; or
(ii)A frank injury to the right shoulder; or
(iii)The combination of both of those mechanisms.
8 In the application, the defendant puts in issue:
(i) The honesty and/or reliability of the plaintiff as a witness and historian;
(ii) The obligation of the plaintiff to disentangle the organic consequences of her current presentation from any emotional or psychiatric consequences;
(iii) The obligation of the plaintiff to identify with appropriate precision, the consequences of the alleged injury suffered by her in the course of her employment with the defendant on the basis of the assertion made by the defendant that that injury involves an aggravation of the pre-existing motor vehicle accident-related condition; and
(iv) Whether the plaintiff has made good her onus to establish her entitlement to the leave which she seeks in this instance generally.
Findings as to the reliability of the evidence of the Plaintiff
9 Much of the cross-examination in this instance involved the exploration of the symptoms associated with the plaintiff’s motor vehicle collision and her recovery from those symptoms.
10 Essentially, it was the plaintiff’s position that at the time she commenced employment with the defendant, she had recovered from the injuries sustained by her in the motor vehicle accident, notwithstanding the fact that the symptoms associated with those injuries had persisted for some ten years or so following the accident.
11 There could be no issue, when considering the evidence given by the plaintiff as to the history of her symptoms following the motor vehicle accident, that the plaintiff made numerous statements in the course of her evidence which were inconsistent, and suggested that she was unreliable upon issues as to:
· the duration of her motor vehicle-accident related symptoms;
· the ongoing nature of those symptoms;
· whether those symptoms involved her right shoulder and arm; and
· the duration of those symptoms insofar as they affected her capacity for work involving significant physical activity and her capacity for employment generally.
12 Whilst the plaintiff at various times gave evidence that:
· she had no symptoms in her right arm following the motor vehicle accident; and
· she had recovered from her motor vehicle accident so that by 2008-2009, she was fit to undertake physical work;
I am satisfied that the plaintiff’s evidence as to these issues was unreliable, given;
(i) The various medical histories which were recorded by both the plaintiff’s treating doctors, as well as the consultants retained on behalf of the Transport Accident Commission who examined the plaintiff in 2009 and 2010 for the purposes of assessing her accident-related symptoms;
(ii) The plaintiff’s application to CGU Insurance which was completed by her treating general practitioner in April 2009 in which her general practitioner certified her as being unfit for physical activity and work.
13 Whilst it is put on behalf of the defendant that the plaintiff’s unreliability on these issues makes it impossible to fix with the requisite degree of certainty the influence of injury the subject of this application upon the function of her right upper limb, in that the subject injury involves an aggravation of a pre-existing symptomatic motor vehicle accident-related injury to the right shoulder, I do not accept that position.
14 Rather, I am satisfied that the subject injury should be characterised as involving the aggravation of an asymptomatic condition.
15 In making that finding, I do so, accepting the plaintiff’s evidence that as at the date upon which she commenced her employment with the defendant, she had recovered from her motor vehicle accident-related injuries to the extent that she was fit for unrestricted physical work.
16 Notwithstanding the plaintiff’s unreliability as a witness upon the issues to which I have referred, I make the above finding for the following reasons:
(a) Firstly, there is no issue that for some twelve months after the plaintiff commenced employment with the defendant in November 2011, she was fit to undertake the unrestricted duties required of her as an attendant carer which involved various aspects of manual handling of aged and, on occasion, infirm residents and, accordingly, the application of strength and the exposure of stresses upon her right shoulder;
(b) Secondly, there is no evidence that the plaintiff either:
· presented to her general practitioner with symptoms of right shoulder or arm pain; or
· sought treatment for any symptoms in her right shoulder or arm
during the period in which she was employed by the defendant prior to the date upon which she reported the subject injury in this incident in December 2012;
(c)Thirdly, there is a significant body of medical evidence to which I will subsequently refer which supports the finding;
(d)Fourthly, a stark contrast exists between the plaintiff’s history of attending upon her general practitioner between December 2006 and 26 October 2010 with symptoms of neck and other pain secondary to her motor vehicle accident and the absence of the plaintiff’s attendance with similar symptoms between 26 October 2010 and the date upon which her current injury manifested itself in December 2012.
17 In my opinion, these factors speak definitively upon the issue as to the recovery by the plaintiff from any symptoms in her right shoulder or arm of the type which were present for years after the motor vehicle accident, and persuasively in support of the plaintiff’s evidence that she had no problems with her right shoulder or arm at the time she commenced her employment with the defendant.
18 For these reasons, notwithstanding the plaintiff’s lack of reliability upon the issues to which I have referred, I accept the plaintiff’s evidence that when she commenced her employment with the defendant, she had effectively recovered from the effects of her motor vehicle accident-related injuries insofar as those injuries impacted upon:
· the pain in her right shoulder and arm; or
· her capacity for activity by reason of the condition of her right shoulder and arm;
and, accordingly, I am satisfied that I should regard the subject workplace injury as being solely responsible for the current symptoms and disabilities with which the plaintiff presents in her right shoulder and arm.
19 Further, whilst the plaintiff was clearly unreliable upon the issues to which I have referred, I do not accept the defendant’s position that the plaintiff was deliberately so, or unreliable generally.
20 I make that finding for the following reasons:
(i) Firstly, I do not find it surprising, having regard to the longevity of the plaintiff’s motor vehicle accident-related symptoms, that the plaintiff may be confused as to the date upon which she regained her capacity for unrestricted activity following the motor vehicle accident, taking into account the time which has now elapsed since that date, namely four to five years.
(ii) Secondly, the plaintiff’s behaviour in:
·returning to restricted duties with the defendant notwithstanding her subject injury, and continuing in that employment until she was terminated for the reasons unrelated to her work-related injury; and
·attempting to rehabilitate herself by the academic qualifications she has obtained since losing her employment with the defendant
in my opinion speak to the plaintiff’s credit as a person seeking to diminish the effect which her industrial accident has had upon her life and lifestyle and;
(iii)Thirdly, that the plaintiff presented as a truthful witness as to matters of significance in the application was demonstrated by admissions made by the plaintiff as to the effect which her further education has had upon her present capacity for a large range of employment, which admissions were freely made and had the effect of totalling undermining her application for leave to commence a proceeding claiming economic loss damages.
21 All of the behaviour referred to above is the antithesis of that which, in my opinion, might be expected of someone seeking to deliberately exaggerate her symptoms and disability for the purpose of achieving a pecuniary gain in the form of compensation to which she is not entitled.
22 For these reasons I am satisfied that the plaintiff should be categorised as a generally honest witness and that I should accept her evidence unless I am not persuaded as to the reliability of that evidence.
The medical evidence
23 In assessing the significance of the medical evidence in this instance I am satisfied that I should do so on the basis that the plaintiff is principally right hand dominant. I make that finding, accepting the plaintiff’s viva voce evidence that this was the case and that she did not really understand the meaning of the word ambidextrous.
24 There is no issue that the plaintiff consults two general practitioners namely:
· Dr G White, who has managed the subject injury; and
· Dr Johnson, who has managed the motor vehicle accident-related injury.
25 Whilst the defendant was critical of the plaintiff’s choice in this regard, I am not satisfied that any issue as to the plaintiff’s truthfulness or reliability as a witness arises by reason of this choice made by her and no such position was put to the plaintiff in the course of cross-examination.
26 In a series of reports between April 2013 and October 2015, Dr White described the plaintiff as presenting with a work-related injury to her right shoulder, as evidenced by an MRI scan revealing the presence of a SLAP lesion and tendinosis of the rotator cuff.
27 In a report dated 3 October 2015, when commenting upon the effect of the motor vehicle accident-related injury suffered by the plaintiff, Dr White commented:
“When I examined Mrs Fawti (sic) on 13.12.12 after wrenching her shoulder at work (resulting in the sudden onset of pain), all of her movements were grossly restricted and have remained so ever since. Subsequently an MRI scan revealed the torn glenoid labrum.
If this had occurred at the time of the car accident, I do not believe that she could have continued working in manual tasks for so long with apparently minimal shoulder discomfort.
Consequently despite the very interesting background information that you have provided, I still believe that Mrs Fwati’s (sic) present shoulder injury (torn glenoid labrum) occurred as a result of wrenching the shoulder whilst working as a permanent care attendant.”[1]
[1]Plaintiff’s Court Book (“PCB”) 46–47
28 Having regard to the Dr White’s ongoing management of the plaintiff’s presentation since December 2012, I am satisfied that Dr White is probably best placed to comment upon:
· The consistency of the plaintiff’s presentation;
· The cause of the plaintiff’s symptoms insofar as any disentangling is required in this application between the plaintiff’s presentation with physical or emotionally-based symptoms; and
· The causal relationship between the plaintiff’s symptoms and her work duties.
29 Mr Ton Tran, orthopaedic surgeon, assessed the plaintiff at the referral of Dr White on 30 May 2013, at which time he reported that the plaintiff presented with a labral tear in the posterior superior aspect of her shoulder and commented that, whilst the plaintiff was keen to pursue conservative treatment, he had advised her to be mindful of her activities to avoid exacerbating the shoulder in the short term.
30 In a report dated 7 October 2015, Mr Tran, having been apprised of the plaintiff’s relevant motor vehicle accident history, commented:
“Her pre-existing neck pain and shoulder problem, as documented in the past and, given that she has never had a previous MRI examination prior to this injury, would make the precise timing of the labral injury difficult.
…
All in all, I would be able to state that, at the very least, she has had an exacerbation of her cervical spine and/or shoulder problem, given the mechanism as described in December, 2012.
The previous injury to her neck and shoulder could have predisposed her to such exacerbations. She has received appropriate medical care and assessment.
She had wisely agreed to conservative treatment which I believed was the most appropriate treatment for her.”[2]
[2]PCB 51
31 Mr Chris Pullen, orthopaedic surgeon, also treated the plaintiff at the referral of Dr White and first reported upon the plaintiff’s presentation to Dr White on 23 August 2013. On that occasion, Mr Pullen diagnosed the plaintiff as presenting with a SLAP lesion and tendinosis of the rotator cuff, commenting:
“I believe it is unlikely that she would be able to return to her pre-injury duties. She would be unable to use her right shoulder for lifting or work above shoulder height. If some alternative duties could be found for her in an administrative role, she may be able to return to these on a limited basis. I do not believe she will be suitable for pre-injury duties until her shoulder symptoms improve significantly, either with the help of her physiotherapist or after surgical intervention.”[3]
[3]PCB 56‒57
32 This report of Mr Pullen, which is unequivocal about the restriction which the plaintiff’s work-related right shoulder condition placed upon her capacity for activity and employment, should, in my opinion, be contrasted with the clear capacity of the plaintiff to undertake the duties required of her in the course of her employment with the defendant between November 2011 and December 2012 and provides unequivocal support for my finding that I should be satisfied that the plaintiff’s capacity to undertake her pre-injury duties demonstrated that she had recovered from any motor vehicle accident-related influence upon the function of her shoulder and that her current incapacity in terms of pain and restriction of movement stems solely from the subject workplace injury.
33 Mr Brendan Dooley, orthopaedic surgeon, assessed the plaintiff on 11 May 2010 with respect to her motor vehicle accident. The plaintiff presented to Mr Dooley with neck pain and right brachial neuralgia, together with pain in her shoulder. At the time of that presentation, Mr Dooley opined:
“As a result of the transport accident of 8 August 1999, almost eleven years ago, Mrs Fwati sustained soft tissue injuries to her cervical spine aggravating disc degenerative changes, with referred pain to her right arm which has persisted, but nevertheless is slowly improving and not grossly disabling.
She has also continued to complain of separate shoulder pain affecting her right shoulder, and she possibly has a low-grade chronic sub-acromial bursitis and rotator cuff impingement syndrome. As with her neck condition, she prefers not to consider surgery, and this is reasonable.”[4]
[4]Defendant’s Court Book (“DCB”) 72–73
34 Whilst Mr Dooley, in the course of that report, raised the possibility that the plaintiff presented with chronic sub-acromial bursitis and a rotator cuff impingement, I note that he did so, commenting that the condition of the plaintiff’s right shoulder had never been investigated by way of x-rays or ultrasound but, equally, that he was satisfied that the plaintiff presented with a probable injury to her right shoulder at that time.
35 On 14 July 2015, Mr Michael Dooley, assessed the plaintiff with respect to her subject injury. At that time, Mr Dooley was fully briefed with material relevant to the 1999 motor vehicle accident.
36 Mr Dooley opined:
“… I believe that Mrs Fwati sustained a soft tissue injury to her right shoulder during the course of her work on this day. This has most likely involved some aggravation of underlying degenerative rotator cuff disease. It is now over two years since the episode. Mrs Fwati reports constant ongoing right shoulder girdle pain.”[5]
[5]DCB 113
37 In commenting upon the plaintiff’s presentation, whilst opining that the majority of the plaintiff’s presentation arose by reason of a psychological reaction to her situation, Mr Dooley opined:
· that the plaintiff presented with an ongoing physical injury which was responsible for some restriction of her right shoulder girdle motion:
· that the plaintiff’s organic injuries precluded her from returning to her pre-injury duties and limited her capacity for employment to light physical work and clerical duties;
38 Further, Mr Dooley took no issue as to the defendant’s work process being totally responsible for the plaintiff’s presentation.
39 Taking into account the plaintiff’s capacity for the duties undertaken by her in the course of her employment with the defendant between November 2011 and December 2012, when considered in the context of Mr M Dooley’s opinion that the effect of the physical injury sustained by her by reason of the subject workplace injury has been to preclude the plaintiff from that form of work, this evidence further supports my finding as to the significant impact which the subject injury has had upon the plaintiff’s capacity for activity.
40 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff on 13 May 2015. At the time of that examination, Mr Kossmann had access to a plethora of medical reports, as set out at PCB 66, which clearly documented the plaintiff’s presentation between 1999 and 2010 to a number of medical examiners who both assessed and treated her with respect to her motor vehicle accident-related injuries.
41 In that setting, Mr Kossmann opined, in a report dated 4 October 2015 that:
(i) he had no reason to believe that the plaintiff had issues with her right shoulder prior to the work-related accident on 7 December 2012;
(ii) the injury mechanism, as described by the plaintiff from the accident on 7 December 2012, was the likely cause of the MRI diagnosed —
“… SLAP tear from 12 to 3 o’clock, subacromial bursitis tendinitis of the supraspinatus, infraspinatus and subscapularis tendons, aggravation of mild AC joint degenerative changes and the clinical picture of a frozen shoulder on the right side.
Therefore on balance of probabilities I am of the opinion that Ms Fwati has suffered the diagnosed injuries in her right shoulder joint in her work related accident on 7 December 2012.”[6]
[6]PCB 73
42 At the same time, Mr Kossmann confirmed his previous diagnosis that the plaintiff presented with significant pain and movement restriction in the right shoulder joint which was stabilised; that she was precluded from returning to her profession as a PCA but that she should be able to work in a sedentary position where she did not have to use her upper extremities.
43 It is beyond argument that in expressing that opinion, Mr Kossman did so factoring into his analysis the effect of the motor vehicle accident in the cause of the plaintiff’s disability.
44 In a report dated 15 June 2015, Mr Peter Mangos, general surgeon, whilst commenting that there were some inconsistencies in the plaintiff’s range of shoulder movement, he nevertheless opined that as a result of her workplace-related injury, the plaintiff had been rendered unfit for pre-injury employment but was fit for alternative duties which involved using her left arm.
45 On 30 June 2015, Mr Charles Flanc, general surgeon, examined the plaintiff, having been provided with the same material which was provided to Mr Kossmann as to the plaintiff’s relevant history.
46 Mr Flanc opined:
· Having regard to the plaintiff’s capacity to undertake the work required of her in her employment with the defendant, it was likely that any disability of her right shoulder would have been minor until the specific incident of 12 December 2010.
· It is likely that the supraspinatus tendinitis, mild acromioclavicular arthritis and subacromial bursitis pre-existed her 2012 injury, but were significantly aggravated at that time, in the sense that they became symptomatic.
47 Whilst Mr Flanc expressed the opinion that the plaintiff presented with pain and disability which was significantly influenced by the presence of an emotionally-based Chronic Pain Syndrome, he nonetheless opined:
“In practical terms however, it is my view that whatever the mechanism, she has sustained a major injury to her right shoulder as a result of the incident of 7/12/2012, that she has developed a frozen shoulder and that she is still significantly disabled.”[7]
[7]PCB 95
48 I am satisfied that in making that statement, Mr Flanc was commenting upon the impact of the physical injury suffered by the plaintiff when assessed in the absence of any influence of the plaintiff’s Chronic Pain Syndrome.
49 Further, whilst Mr Flanc commented in the course of his report that the current disability of the plaintiff’s right shoulder was significantly related to the work incident of 7 December 2012, and to a much lesser extent the motor vehicle accident of 1999, I interpret Mr Flanc, in making that statement, to be referring to the part the motor vehicle accident may have played in causing the pre-existing pathology in the plaintiff’s right shoulder rather than the plaintiff’s current physical disability, given his statement that the mechanism of the 2012 incident was to significantly aggravate that condition “by extending it or making it symptomatic”.
50 Dr Louise Barberis has authored four reports as to the plaintiff’s presentation between February 2013 and October 2015. Essentially, Dr Barberis has been consistent in her opinion that the effect of the plaintiff’s December 2012 compensable injury has been to render her unfit for her pre-injury duties but fit for appropriately modified alternative duties.
51 When opining as to the plaintiff’s presentation as at October 2015, it is clear that Dr Barberis had access to an extensive volume of medical and x-ray reports relevant both to the plaintiff’s presentation following her motor vehicle accident and her 2012 accident.
52 On the basis of that material, Dr Barberis opined that the plaintiff presented with right rotator cuff pathology which is significantly related to the injury of 7 December 2012 as, prior to the injury, she was maintaining PCA work of a moderate physical capacity without issue.
53 Dr Barberis continued:
“She is permanently unfit for pre-injury PCA duties due to manual handling requirements and requires sedentary duties. She must work at around waist height and avoid forward reaching and lifting more than a couple of kilos. She would not be suited to sustained data entry or sustained word processing and would need to break-up keyboard work with other tasks.
…
… she does not have the physical capacity for pre-injury duties due to manual handling requirements of PCA work and this is likely to be the case in the foreseeable future. She could perform suitably restricted duties up to pre-injury hours of around 30 per week.
…
She has anxiety and depression and reports some episodes of panic. She is on medication and is to recommence psychological counselling shortly. In my opinion, it does not appear to be a major barrier in taking up appropriate work at this point.”[8]
[8]DCB 101‒102
54 I am satisfied that in opining as to the plaintiff’s capacity for employment, Dr Barberis did so on the basis of the plaintiff’s physical presentation, excluding any influence on that presentation of the plaintiff’s anxiety and depression.
55 Although Mr M Dooley and Mr Flanc have commented upon the influence of emotional factors in the plaintiff’s presentation, the influence of such factors were not considered to have any significant relevance in the plaintiff’s presentation by the plaintiff’s general practitioner, Dr White, the plaintiff’s treating surgeons, Mr Tran and Mr Pullen, and the medico-legal consultants, Mr Kossmann, Mr Mangos and Dr Barberis.
56 Whilst Mr M Dooley and Mr Flanc expressed contrary views as to this issue, I am satisfied that the weight of opinion identifies the plaintiff’s presentation as being accounted for by the presence of physical symptoms and I prefer that evidence to the opinions expressed by Mr M Dooley and Mr Flanc as to the influence which non-physical issues have as to the plaintiff’s presentation.
57 In two reports dated 23 April 2014 and 14 May 2014, Dr Roy Karna opined that the plaintiff presented with an exaggerated pain response suggestive of a pain syndrome. I note, in expressing that opinion, Dr Karna, although having had access to the plaintiff’s MRI scan, opined that the scan suggested the possibility of a labral tear, when in fact the report was unequivocal in diagnosing the presence of a SLAP tear involving the posterior quadrant from the 12 to 3 o’clock position.
58 Given Dr Karna’s approach to his analysis in which he called into question the existence of such a tear by wrongly describing the findings of the relevant MRI report and, for that matter, the opinion expressed by Mr Tran (in that in both instances he converted a definitive diagnosis into the possibility of a diagnosis), I am not satisfied that Dr Karna has approached his analysis of the plaintiff’s presentation upon an accurate understanding of the underlying organic condition with which the plaintiff presents and, for that reason, I do not find his opinion to be persuasive.
59 Dr Joseph Slesenger, specialist occupational physician, opined with respect to the plaintiff’s presentation on 9 October 2015. In the course of his report, Dr Slesenger commented upon the plaintiff’s presentation and took no issue with her account of her injuries or his physical findings.
60 Whilst he opined that the plaintiff presented with a right shoulder Chronic Pain Disorder, the basis upon which he arrived at that opinion is unclear from his report. Neither does he opine as to the significance of that condition upon the plaintiff’s presentation.
61 It seems likely from the content of his report that Dr Slesenger’s diagnosis of the presence of a Chronic Pain Syndrome was based upon his acceptance of the opinions expressed by Mr Flanc and Mr Dooley. Having rejected those positions for the reasons to which I have referred earlier, I do not regard Dr Slesenger’s opinion as being persuasive as to this issue.
62 For the reasons set out above, I am satisfied that the plaintiff presents with an organic condition in her right shoulder arising from the subject work process which was responsible for either:
· causing the SLAP tear referred to in the MRI scan of 23 May 2013; or
· aggravating a pre-existing asymptomatic condition in the plaintiff’s right shoulder.
63 It follows in either scenario that I am satisfied the effect of the defendant’s work process has been such as to render an asymptomatic presentation or condition permanently symptomatic, and responsible for the pain and incapacity about which the plaintiff now complains in her right shoulder and arm.
64 As to the surveillance evidence upon which the defendant relies in this matter, I analyse the significance of that evidence by taking into account:
· Not only my assessment of the material, which was that it failed to demonstrate the plaintiff to engage in any activity which was inconsistent with the history she gave as to her symptoms or her capacity for activity;
· But also the opinions of Mr Dooley and Dr Barberis each of whom expressed the opinion that the surveillance evidence was in no way inconsistent with the finding to which I have referred.
65 There is no issue that the plaintiff presents with symptoms of anxiety and depression which impact upon her life.
66 In his report dated 19 February 2015, Dr White commented that those symptoms arose by reason of the plaintiff’s inability to find work, having been dismissed from her last job. He continued:
“As far as her physical limitations are concerned she is unable to flex her shoulder or abduct her arm by more than about 40 degrees from the vertical without the onset of pain. Moreover if she uses the arm on repetitive tasks during the day she needs to take analgesics to relieve the pain at night.”[9]
[9]PCB 44
67 Dr White concluded his report with the comments that, in the absence of surgery, the plaintiff would be required to manage her symptoms by the employment of anti-inflammatory and analgesic medications, as required, and that her condition was unlikely to improve.
68 In my opinion, as I have commented earlier, Dr White, who has exclusively managed the plaintiff’s presentation with respect to the subject injury, is well placed to comment upon the physical limitations with which the plaintiff presents and the impact upon the plaintiff’s presentation for which her underlying anxiety and depressive condition is responsible, and I find his evidence to be persuasive on these issues.
69 Given the medical evidence to which I have previously referred, a large body of which describes the plaintiff as presenting either with purely organically-sponsored symptoms or a combination of organic and emotionally-sponsored symptoms, but which clearly identifies the consequences of the plaintiff’s organic injury as being responsible for a condition which precludes the plaintiff from any work or activities which involve forceful activity with her dominant right limb, I am satisfied that by reason of the subject work process, the plaintiff has:
· Lost her capacity to undertake physical work of the type required of her in the course of her employment with the defendant;
· Been limited in her capacity for activity in the manner described by Dr Barberis and Dr White.
70 I am further satisfied that the consequences of the injury to the plaintiff’s right shoulder, as described by her in her affidavits and viva voce evidence, are such as would be likely to be generated by the presence of an organic injury to the shoulder, the severity of which is sufficient to restrict the plaintiff’s capacity for employment and activity in such a manner and I am, accordingly, satisfied as to the reliability of that evidence.
71 Whilst it is put on behalf of the defendant that the plaintiff’s loss of capacity for her pre-injury employment with the defendant does not give rise to a significant loss to her, having regard to her evidence that as at 2009, she did not wish to return to that type of work, when account is taken of:
· the fact that in 2011, the plaintiff had undertaken a training course to further qualify her for employment as an attendant carer and her pursuit of that employment with the defendant;
· the evidence of Dr White that the plaintiff’s anxiety and depression arises by reason of the plaintiff’s inability to find work since she was dismissed by the defendant;
I am satisfied that the plaintiff’s loss of capacity for unrestricted work represents a very significant loss to her.
72 That finding is reinforced by the plaintiff’s history of continuing to retrain herself for employment and her attempts to find work which to date has met with no success, which not only speaks to her credit generally, but reinforces my opinion that, notwithstanding the long period during which the plaintiff was out of the workforce prior to commencing employment with the defendant, her ability to find productive employment has been, for some time, and remains, extremely important to her.
73 In the course of the trial, no challenge was made as to the plaintiff’s evidence that her shoulder causes her pain, affects her sleep, limits her ability to type or operate a computer for more than 15 or so minutes without having to take a break, or that her symptoms are aggravated by simple activities involved in daily life of the type described by the plaintiff both in her viva voce evidence and in her affidavits.
74 I am satisfied, for the reasons which I have previously set out, that the physical condition of the plaintiff’s right shoulder, when considered independently of any emotional aspect associated with the plaintiff’s presentation, is such that it accounts for the symptoms and disabilities described by the plaintiff in the course of her evidence.
75 For these reasons I am satisfied that the consequences of the impairment of function of the plaintiff’s right dominant upper limb are appropriately described as being “more than significant or marked” and as being “at least very considerable” and, accordingly, that the plaintiff is entitled to the leave sought to commence a proceeding against the defendant claiming damages for the pain and suffering consequences of the injury the subject of this application.
Loss of earning capacity
76 As to the plaintiff’s application for leave to commence a proceeding with respect to economic loss, I am not satisfied that the plaintiff has made good her onus that such leave should be granted.
77 It is clear that through her own initiative to retrain herself, the plaintiff has gained a number of qualifications which open the potential for her to earn significant levels of income in work which she may have the capacity to undertake. Whilst given her physical restrictions, it may be that the concessions readily made by the plaintiff in the course of her cross-examination as to her capacity for employment were ill-founded.
78 It could not be said, in my opinion however, having regard to;
· the plaintiff’s evidence as to the large range of work which she is qualified to perform;
· the range of activities which the plaintiff expects might be involved in that work which she believes may be within her capacity; and
· the concession made on behalf of the plaintiff as to the income which she would earn should she succeed in finding such work;
that the plaintiff has established, on the balance of probabilities, that she has lost the capacity to earn income which meets the relevant statutory threshold in an occupation which is reasonably open to her, having regard to her physical capacity and her skillset.
79 I will hear the parties as to the form of the orders which will be made given my findings in this instance and also upon the issue of costs.
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