Gartmann v Victorian WorkCover Authority

[2018] VCC 1344

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-18-00893

LUZINDA GARTMANN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	First Defendant
and
DOMINION HOTEL GROUP PTY LTD	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 August 2018
DATE OF JUDGMENT:	30 August 2018 (revised)
CASE MAY BE CITED AS:	Gartmann v Victorian WorkCover Authority & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1344

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:               Serious injury – impairment to the cervical spine – Complex Regional Pain Syndrome – psychiatric impairment – Somatic Pain Disorder – pain and suffering – loss of earning capacity

Legislation Cited:      Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Merhi v Ford Motor Company Australia Limited [2014] VSCA 328; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                   Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr G Coldwell	Alessi Legal
For the Defendants	Mr C Harrison QC with Ms S Manova	Russell Kennedy

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the second defendant on 13 July 2012 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a)   permanent serious impairment or loss of a body function.”

4       The body function relied upon in this application is the cervical spine and also a Complex Regional Pain Syndrome (“CRPS”). 

5       The plaintiff also relied upon a psychiatric impairment pursuant to clause (c).

6       The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”.  Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[1][1998] 3 VR 833 at 846

[2](1995) 21 MVR 314

7       Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of s(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[4]

[3]Mobilio v Balliotis (supra) at 833

[4]See also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect

8       A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c).[5]

[5]per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227

Outline of Section 134AB

9       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

10      The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

11 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

12 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.

13      I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

14      In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

15      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

16      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

17      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

18      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] and Grech v Orica Australia Pty Ltd & Anor[7] in reaching my conclusions.

[6](2005) 14 VR 622

[7](2006) 14 VR 602

19      The plaintiff relied upon two affidavits and gave viva voce evidence.  She was cross-examined.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

20      The plaintiff is presently aged twenty-five, having been born in March 1993.  She lives at home with her parents.

21      The plaintiff completed Year 12 in 2010.  Whilst at school in Years 10 to 12, she did some work experience in her holidays with Channel 7 as a junior sports journalist.  It had always been her ambition to work in television.  She was invited to help on AFL game day.  She was on the road with a mentor journalist.[8]  

[8]Transcript (“T”) 106; References from Chris Jones, Producer, Games Day, 31 August 2010; video reference and transcript from Tom Rehn, sports reporter

22      After finishing school, the plaintiff enrolled to study in an Advanced Diploma in Television at NMIT.  She deferred the course for a year as she had glandular fever.[9]

[9]T103

23      The plaintiff then successfully applied to study a Bachelor of Communication and Media Studies at Swinburne, commencing in 2012.  This course would give her entry into journalism.  She planned to study and work part time over the next three years, and was very excited about her future career prospects.

24      Before the said date, the plaintiff was an outgoing physically active nineteen year old, enjoying sports, particularly tennis, exercising and keeping fit.  She took pride in her personal appearance.  She loved going out with friends to parties, hotels and clubs, and considered herself a popular, happy and sociable person.

25      The plaintiff was cross-examined about a number of entries in her general practitioner’s clinical notes before the said date.

26      On 14 October 2010, the plaintiff attended, complaining of a throbbing headache.  She was short of breath on exertion.  Fatigue was noted.

27      When the plaintiff attended on 15 January 2011, migraine was noted.  “Headaches since this morning, with right throbbing, nausea.  Currently 5 out of 10, worst at 8 to 9 out of 10.  Migraine for Maxolon and Panadol Extra.”

28      The plaintiff explained these headaches were a “complete different feeling” to her headaches after the said date.  In 2010, she was in Year 12.  She thought the headaches were more to do with glandular fever.  Whilst she rated her pre-injury headaches at a high level, she thought they were bad until she experienced her post-injury headaches.[10]

[10]T31

29      The plaintiff’s current headaches come from her neck into her head.  The earlier headaches started as a headache and were in a different part of her head – more like pressure headaches.[11]  She denied she was exaggerating the level of her present headaches.[12]

[11]T30

[12]T32

30      When the plaintiff attended her general practitioner on 14 April 2011, palpitations were noted.  The plaintiff had worked all week in the office with her mother in finance – “Got worse, very tired, mouth ulcers.  Heart pounding on and off.”  It was noted she was worried her mother does not believe her.

31      The plaintiff explained that there was a period of time when she felt her mother did not believe she had glandular fever as on two occasions, tests had been negative but she did in fact have the condition.[13]

[13]T32

32      The plaintiff could recall attending the Royal Melbourne Hospital Emergency on 23 February 2011.  It was then noted – “complaining of headaches since October 2010 no specific location …  also feeling very tired and weak since then.  Headaches throbbing in nature, frequency and intensity of headaches getting more frequent ++ associated with dizziness and nausea.”[14]

[14]T33

33      The plaintiff attended her general practitioner on 29 April 2011.  The note of that visit read “LUQ pains, reactive depression, anxiety re health … Reassured … her heart was fine.  She works a few days a week, 5 hours daily, accounts, seems not to be looking forward to work.  Mum works there as well.”

34      The plaintiff could not recall saying she was not looking forward to work.  She was then working with her mother in accounts at DHL, having deferred her course.  During that time, the plaintiff had glandular fever.  She was fatigued and tired all the time.[15]

[15]T35

35      The plaintiff was seen on 4 May 2011.  LUQ pains ongoing was noted.  The plaintiff was in tears.  “Ultrasound and C x‑ray normal?”

36      The plaintiff was next seen on 9 May 2011.  It was then noted “LUQ pain persisting, missed work.  Endep prescribed.  Referral to Professor Janus.”

37      On 3 October 2011, it was noted “LUQ pain.  Left upper abdominal pains last two weeks.  Tired++.  Tests organised.”

38      The plaintiff described the area of LUQ pain as under her ribcage.[16]

[16]T39

Work with the Defendant

39      In early 2012, the plaintiff applied for a casual waitressing position with the second defendant, who owned the Kealba Hotel (“the Hotel”).  She began working there on 10 April 2012 as a casual bar attendant and waitress in the bistro.  She usually worked sixteen to eighteen hours a week, earning $21 an hour.  She enjoyed the social interaction with staff and customers at work.

40      On the said date, at about 7.30pm, the plaintiff suffered an injury when she slipped on the wet floor near the bar, landing on tables and chairs (“the incident”).  She immediately felt pain in her left shoulder and neck and reported the incident.  She was unable to continue working, and went home.  She continued to have severe pain.

41      The next day, the plaintiff saw Dr Srinivasan, who told her she had dislocated her shoulder.  She put it back in and sent the plaintiff for an x-ray.

42      The plaintiff later went back and saw her usual general practitioner, Dr Roziel, who told her she had torn her AC joint.  The plaintiff’s left arm was in a sling for the next month.  She was sent to a physiotherapist, who manipulated her left shoulder.

43      The plaintiff was cross-examined about her initial attendance at her general practitioners after the incident.

44      The note of 14 July 2012 set out the plaintiff saw Dr Malathi Srinivasan for 21 minutes from 10.44am, and read as follows:

“Fall at work last night.  Slipped and fell down at work last night.  Works as a waitress and the floor was wet?  Landed on L shoulder.  C/O pain L collarbone NAD shoulder?  Had subluxation L shoulder felt something slipping out and in for x‑ray.  X‑ray no obvious fracture.  For ultrasound.  Left shoulder in pain still.  Referral for x‑ray of the arm, clavicle and left shoulder to Capital Radiology.”

45      The plaintiff explained when she went to go to the clinic with her friend, Tiffany, the morning after the incident and it was not open.  A doctor had a quick look at her and relocated her shoulder.[17] Having seen the doctor who relocated her shoulder, the plaintiff returned to the clinic later that morning after being sent off for x-rays.[18]

[17]T40

[18]T43

46      The plaintiff did not do anything about her dislocated shoulder the night of the incident because she did not know what to do.  She did not want to wait at Emergency.[19]

[19]T42

47      Following the incident, the plaintiff was suffering severe headaches.  She had had headaches at times before her injury, but those after the incident were more intense and painful.

48      The plaintiff also had pain, and pins and needles shooting down her left arm into her hand.  Dr Roziel prescribed medication, including Tramadol, Voltaren and Valium.  The plaintiff was also taking Panadol and Nurofen.  The Tramadol made her very dizzy.

49      The plaintiff was not able to return to work and she struggled with her studies.  She cut down on her medication and tried to get by just with Panadol and Nurofen, but her symptoms became unbearable.

50      The plaintiff’s WorkCover claim was accepted.  She was paid weekly payments for all the time off work and also ongoing medical expenses.

51      The plaintiff was having headaches every day, and often many times.  They were triggered by minor activity, including physiotherapy.  Her neck was very stiff.  She had frequent spasms down the left side of her neck and was getting pain, numbness and weakness in her left shoulder and down her left arm.

52      The plaintiff was seen by neurosurgeon, Caroline Tan, in September 2012, on referral from Dr Roziel.  Dr Tan sent her for an MRI scan and x-rays of her neck on 7 November 2012, and also referred her to physiotherapist, Justin McEvoy. 

53      The plaintiff was told she had slipped a disc in her neck and that her neck was unstable.  She was also advised she needed steroid injections into her cervical discs.

54      While Dr Tange, medico-legal examiner, noted when he saw the plaintiff in November 2012 that the plaintiff had an initial shoulder injury and that she then began experiencing very troubling left-sided headaches, the plaintiff said she thought she had had headaches from the time of the incident.  She initially thought they were to do with her sling, but when the sling came off, the headaches continued.[20]

[20]T47

55      The plaintiff agreed, as Dr Tange reported, that she was experiencing mild weakness and mild reduction of touch sensation in the left arm.  This had got worse over time, until the present.[21]  She could not remember if she had a full range of left shoulder motion in November 2012.[22]

[21]T49

[22]T52

56      The plaintiff agreed she told Dr Lange her headaches could be exacerbated by even wearing a heavy necklace or having physiotherapy.[23]  The history, then, of headaches on a daily basis, usually two or three times a day, lasting from ten minutes to all day, has continued right through, but her headaches change every day.[24]

[23]T49

[24]T50

57      The plaintiff could not remember how she felt in November 2012.  Her headaches started in the back of her head and went into her temples, as Dr Lange described.[25]

[25]T50

58      On 3 January 2013, the plaintiff had bilateral C3-4 and C4-5 facet joint injections.  Thereafter, she developed increased pain in the back of both arms, and spasm in her left arm.  Dr Roziel put her on stronger medication, including Targin. 

59      Dr Tan sent the plaintiff for further cervical x-rays on 12 April 2013.  She advised the plaintiff that surgery was unlikely to improve her symptoms.

60      Dr Tan referred the plaintiff to a clinical Pilates physiotherapist, Craig Phillips, and also to Dr Verrills at the Metropolitan Pain Clinic.  The plaintiff underwent medial branch blocks and an intra-articular injection at the Pain Clinic.  These procedures did not help and her severe pain persisted.  She continued to take Targin, Endone, Tramadol, Voltaren, Valium and Panadol for her symptoms.

61      By June 2013, the plaintiff was very depressed because of her pain and situation.  She was upset she could not work, and she was worried about her future.  Dr Roziel sent her to psychologist, Dayana Noor, whom the plaintiff first saw later that month.

62      During 2013, the plaintiff dropped a subject in her course because she could not keep up because of her poor concentration, poor focus and low motivation.  The 40 milligrams of Endone she was taking twice a day was giving her adverse side effects.  Dr Roziel wrote to Swinburne asking for the plaintiff to be given special consideration due to her health.

63      By the end of 2013, the plaintiff stopped taking prescribed medication and attending physiotherapy to see if her condition could improve, but her severe pain got worse.  She began to realise she was dependent on prescribed medication, but found it almost impossible to stop taking it.

64      The plaintiff had had a variety of investigations, including an MRI scan of her brain and left shoulder, and nerve conduction studies.  Dr Roziel sent her to another neurosurgeon, Mr D’Urso, for a second opinion, and he recommended she attend a pain management course.  She did not tell him of her pre-incident headaches because they were different to those she had experienced thereafter.[26]

[26]T59

65      The plaintiff’s pain and symptoms were getting worse and worse.  She developed tingling down the left side of her face.  She could not feel hot and cold sensations down her left arm.  She was dropping things that she held in her hand. 

66      When it was put to the plaintiff that in July 2014 Dr Roberts had found a full range of pain free movement of her shoulder and no symptoms, she explained that she “always exaggerates”, that it is her neck where the pain comes from, so when she is asked about her shoulder, she says it is okay, as she believes “it all stems from [her] neck”.[27]

[27]T62

67      The plaintiff’s shoulder would have been painful when she was seen by Dr Roberts, but she accepted there probably would have been full range of movement.  She focused more on her neck injury, as she believed her arm, shoulder and neck pain was all coming from her neck because the headaches go into her head.[28]  She then seemed to say she did not agree she had a full range of shoulder movement in July 2014, but later agreed this was the case.[29]

[28]T60

[29]T64

68      The plaintiff was never as concerned about her shoulder because she believed her pain came from her neck.  She had a massive bruise and her initial problem was her left shoulder.[30]

[30]T79

69      The plaintiff was sent to pain management specialist, Dr Khan, who, in September 2014, admitted her to the Epworth Hospital for detoxification for prescription medication.  She was there for two weeks under his care. 

70      During that time, the plaintiff had a ketamine infusion, but she was allergic to it, and it had to be ceased.  She stopped taking all medication other than Panadol Osteo.  She suffered withdrawal symptoms, and hospital was a very unpleasant experience.  After discharge, the plaintiff’s pain continued; however, her mind felt a lot clearer without the side effects of the heavy medication, and she began to take Lyrica that did not contain opioids.

71      In 2014, the plaintiff was sent to another specialist, Dr Blombery, who told her she had a condition called CRPS Type 1.  She saw him for the next year or so.  She was not able to lift her left arm properly because of pain, and it was virtually useless.  She continued to take Lyrica for pain and Cymbalta for depression.  She was suffering dizziness from the medication and was sent for another MRI scan of her neck and left shoulder in July 2015.

72      Dr Roziel’s note of a sudden change in the plaintiff’s left shoulder condition in June 2016 was about the time the plaintiff went to pick up a hairbrush and she did hurt herself.[31]

[31]T77

73      During 2016, Dr Khan referred the plaintiff for an outpatient pain management program at the Epworth Hospital, which she commenced on 5 December 2016, two or three days a week, until April 2017.  Despite this treatment, the pain continued and her left arm was still very weak.  The program did not improve her symptoms; however, using the pool gave her some temporary benefit.

74      As of late 2017, when she swore her first affidavit, the plaintiff was following Dr Khan’s advice, and that of other pain management people, to try and use her left arm more.  She was then taking Lyrica, 150 milligrams three times a day, Cymbalta, Oxazepam and Seroquel.

75      In December 2017, the plaintiff awoke with severe pain in the abdomen and began vomiting, and she also had diarrhoea.  She attended Royal Melbourne Hospital Emergency, where she had various tests, including a gastroscopy and colonoscopy.  She was sent to specialist, Dr Connelly, who told her she had lymphocytic gastritis caused by taking Nurofen for her injury.  She has ongoing abdominal pain and nausea and diarrhoea and continues under that doctor’s care.

76      On 30 March 2018, the plaintiff fell and fractured her right ankle.  She underwent surgery on 19 April 2018 and had to wear a moon boot.  Her foot injury prevented her from driving for several months, which meant she could not get to the pool or some doctors’ appointments, which she found very frustrating.

77      The plaintiff’s right ankle symptoms have now settled down and she is happy with her progress.  She is due to have the plates and screws removed on 19 September 2018.

Current treatment

78      The plaintiff presently takes the following medication:  Lyrica, 150 milligrams three times a day; Cymbalta, 60 milligrams, twice a day; Oxazepam, 15 milligram tablet once a day; Seroquel, 25 milligrams, one tablet at night; Endep, 20 milligrams, one tablet at night and Baclofen, 25 milligrams, one tablet a day.

79      The plaintiff knows she needs Lyrica when her arm starts spasming.  It swells when it is cold.[32]  Without medication, her muscles are always moving.  She denied the reason there was no wasting was because she had actually been using her left hand.  She explained there was a “good and bad day” situation.[33]

[32]T109

[33]T98

80      The plaintiff still sees Dr Roziel, psychologist, Ms Noor and pain management specialist, Dr Khan.  Since mid-2017, the plaintiff has also seen psychiatrist, Dr Datta. 

81      The plaintiff was also referred last year to orthopaedic surgeon, Mr Price, who told her that surgery would not improve her pain and she needed to learn to manage her pain as best she could.  Treatment continues to be funded by the insurer.

82      Dr Khan told the plaintiff last year she might need a neurostimulator Stimwave inserted in her neck.  That would not fix her neck, but may assist with some pain relief; however, she was concerned about getting the device inserted in her neck, particularly after the complications with the ketamine infusion and the risk with the procedure.

83      On 25 May 2017, the plaintiff was referred for a further scan to her left shoulder due to the severe pain at the top thereof and across to her collarbone.  She was advised she had tendinosis in her left shoulder and may require a further cervical MRI Scan.  To reduce the inflammation, she had been advised to keep her arm in a sling and take Voltaren.

Pain and restrictions

84      In her November 2017 affidavit, the plaintiff described ongoing pain in her left arm, left shoulder, neck, and headaches.  Her left arm muscles had wasted.  She had difficulty sleeping and required medication to knock herself out.  She had lost strength in her left arm, which was still tender, cold and numb, and occasionally turned a bluish colour.  Her left arm spasmed when she did not take her medication and she had reduced feeling along the arm.  She was often scared to use it because of pain.

85      The plaintiff’s symptoms have continued.  She still has hot and burning pain in her left neck and shoulder that goes down her left arm.  Headaches continued, that worsen when her neck pain increases.  Her left arm still feels weak and spasms, and her hand still swells, goes purple and feels cold.

86      The plaintiff’s sleep is horrible, averaging four to five hours of broken sleep at night.  She wakes up in pain every morning, and during the day, often lies in bed and tries to sleep so that she does not feel the pain anymore.

87      The plaintiff no longer plays tennis or exercises to keep fit.  She struggles with any physical activity requiring full use of her left arm.  She does not meet new friends or maintain intimate relationships, and that upsets her.  She now very rarely goes out and socialises with her old friends.  She cannot commit to social activities until the actual day to see how she is feeling.  Some friends just do not bother with her anymore and she has lost many of them.  Some were worried about her medication use and thought she had become a “junkie”. 

88      The plaintiff’s level of social life is now nowhere near like it was pre injury.[34] She denied what she was shown doing on the film was, in fact, socialising.  She was getting her nails done to go to her friend’s funeral and she was getting a cake for her brother’s birthday.  She suggested the film shown was a selective picture of her level of activity.[35]

[34]T73, T108

[35]T100-101

89      The plaintiff is still very dependent on her parents.  Her mother does the cleaning, cooking and shopping.  The plaintiff does not have the strength to wash her hair and it is embarrassing to get her mother’s help to do so.[36]

[36]T97

90      The plaintiff has driven with a spinner knob on the steering wheel, save for last week, when she borrowed her father’s vehicle.[37]

[37]T51

91      In cross-examination, the plaintiff was asked to demonstrate the level to which she could move her neck and left shoulder.  She could move her neck equally to both sides but turning to the left, it felt tight and like it was pulling.[38]

[38]T3

92      The plaintiff does not have much strength at all in her left hand.  Under her own power, she can lift it out from her shoulder to about 45 degrees with her hand shaking.  She can hold it higher if she supports it with her right hand.  She can scratch her face with her left hand but has to lift her left hand with her right to reach the top of her head.  She cannot keep her left hand to her face without holding it with her right hand.[39]

[39]T25

93      The plaintiff demonstrated getting her left arm behind her to 15-20 degrees.[40] She can only get her left arm out to about 45 degrees with it tucked in.[41] The range of motion does not differ, the pain does.  The plaintiff was encouraged at Epworth in the pain management program to try to use her left arm more but it is very difficult to do so.[42]

[40]T26

[41]T27

[42]T27

94      The plaintiff can sit indefinitely with her left arm slightly elevated with it supported.[43]

[43]T27

95      The plaintiff was asked about the Dr Strauss’ examination in September 2017, when she had great difficulty moving her left arm to any extent.  She explained there are good and bad days and that day was bad.  When her arm hurts she holds it to herself, and it hurts when she moves it.  The pain changes daily.[44]  She does not know how she is going to wake up tomorrow.  She has difficulty doing anything with her left arm; however, some days, she has the same level of movement in both arms.[45]

[44]T85

[45]T87

96      There was just over an hour of film taken of the plaintiff earlier this year.

97      The plaintiff agreed at one stage, she briefly pointed with her left arm outstretched to a packet of cigarettes she wished to buy.  She was shown holding her left arm across her body at about right angles, unsupported.[46]  She agreed she could touch the peak of her cap with her left hand without difficulty.[47] 

[46]T92

[47]T93

98      The plaintiff agreed she was shown at the manicurists sitting for eight minutes or so[48] with her left arm extended with her wrist supported on the table.  She had her arm resting on what may have been a white towel.  It was not comfortable but she could do it.[49]  It was suggested that her left hand, at stages, was not resting on the table and was unsupported, while having her nails done.[50]  This only happened for about two minutes and during that time, the plaintiff had her left elbow tucked into her side. 

[48]Film showed arm supported for longer period

[49]T94

[50]T96

99      The plaintiff was shown going to a funeral the following day, on 16 August 2018.

100     The plaintiff agreed the film showed her getting her left arm further around than 45 degrees.  She does not do things in a normal manner with her left arm.[51]  She could not point for long periods and she could not do that motion in the witness box.  She denied she was grossly exaggerating any difficulties with her left arm.[52]

[51]T96

[52]T99

Mental state

101     As at the end of 2017, the plaintiff felt very anxious and depressed and often suffered from panic attacks, with shortness of breath and a racing heart.  During those times, she felt faint, sweaty, and her face flushed.  She continued to feel tired and lacked motivation, and her libido was reduced.  She often could not concentrate or focus, and lacked self-esteem and confidence.  She felt unattractive and useless, and worried about the future.  She also felt guilty she had to rely on her parents to support her.

102     Since late 2017, the plaintiff felt her anxiety and depression had worsened.  She is angry, frustrated and irritable.  She feels very tired during the day.  Dr Datta has recommended that she be admitted to a psychiatric ward for treatment.  She does not want to do so because of the stigma.  Her whole life has now changed and she feels that no one can fix her.  She has nothing to look forward to and she feels stuck.

103     Recently, the plaintiff’s father was diagnosed with bowel cancer and will have surgery shortly.  She is extremely upset about this.  She does not believe she can give him adequate emotional support because of her own health problems, and that worries her.

104     When the plaintiff was asked about her mother suffering bowel cancer, she asked counsel for the defendants - “Why do you keep making me cry?”, explaining that it was her father who was ill.[53]  She “was stuck in a situation …  That is why … she is] upset because … [she does not] want this life.”[54]

[53]T71

[54]T72

105     The plaintiff was asked about a number of bereavements, which she agreed she found distressing:

·        her Aunt in Switzerland in August 2014, having visited her when ill in early 2013[55]

[55]T56

·        her close friend in July 2014[56]

[56]T65

·        her cousin, who committed suicide in August 2015[57]

[57]T71

·        her uncle in August 2016[58]

·        her friend, Lauren’s, father in August 2017.[59]

[58]T80

[59]T83

106     The plaintiff also agreed she would have been distressed when she was assaulted by a family member in September 2015.[60]

[60]T71

Work since the incident

107     The plaintiff’s injury affected her employment capacity and destroyed her future ambition as a television journalist. 

108     In April 2013, the plaintiff tried to return to meet and greet work at the Hotel bistro for two-hour shifts, but did not last the week because of pain and discomfort.  She knew her restrictions, but she tried.[61]  In September that year, she attempted another day of work; however, this also failed miserably.

[61]T57

109     In late 2014, the plaintiff worked part time as a receptionist for about ten weeks at Werribee racecourse in a job she obtained through her friend, Rhiannon.  The job was just answering the phone around Cup time.[62]  Some days, she worked until the afternoon, sometimes for a full day. 

[62]T67

110     Rhiannon was aware of the plaintiff’s limitations.[63]  She would not let her lift anything at work.  The plaintiff was able to alternate between sitting and standing.  She was on the phone and there was no extensive keyboard work, like she would have to do as a journalist.[64]

[63]T68

[64]T104

111     The plaintiff agreed, as Dr Roziel noted in November 2014, she seemed to be coping with this job reasonably well, although she said her pain had increased somewhat.[65]

[65]T69

112     The plaintiff was critical of Dr Roziel’s communication skills and note writing.  When she noted in January 2015 that she “felt well while working” the plaintiff meant her mental health was better even though she had pain – “Anything was better than being at home.”[66]

[66]T69

113     When it was suggested to the plaintiff she could now work in a customer service role, like the Werribee job, she asked rhetorically – “How do you think I’m going to work Monday to Friday, I can’t even get myself out of bed every one of those days?” …. and “… can’t even commit to volunteer positions”.[67]

[67]T100

114     If the Werribee job had been full time and Rhiannon was her boss, the plaintiff would have tried, but she did not know if she could have done the job.[68]

[68]T100

115     The plaintiff graduated from her course at Swinburne in December 2015.  A two-week internship with the Herald Sun was arranged for early the following January.[69] 

[69]T74

116     The plaintiff agreed, as Dr Entwisle noted in January 2016, that she was awaiting her graduation and looking for jobs.  She did not believe she said she was really happy.[70]  She was excited about starting the internship.[71]

[70]T82

[71]T105

117     During the internship, the plaintiff used to go home and cry because she was in so much pain.[72]  It was very fast paced.  She had to go to destinations to write up stories.  It was go, go, and very quick.  She did not have the capacity to do any more and was in so much pain.[73]

[72]T74

[73]T75

118     Whilst Dr Roziel noted the plaintiff loved and enjoyed the experience, the plaintiff was upset when she got home.  She agreed, as Dr Roziel noted, she realised she could not do the long and unpredictable hours and that she had become more anxious before starting the internship.[74]

[74]T75

119     The plaintiff was not able to attend all day due to her pain levels and resulting incapacity.  She believed she had lost any opportunity of future work with the paper because of her injury.  After the internship was unsuccessful, she was devastated.[75] 

[75]T108

120     The plaintiff had expected long and irregular hours from her work experience at Channel 7.[76]  Journalism was not just a job, it was like a dream.  There was no plan B.[77]  She was not expecting the dream to go wrong.[78]

[76]T108

[77]T76

[78]T77

121     The plaintiff has since been told by her doctors that she is only fit for part-time light work.  As far as she was aware, there was no such thing in a journalist role.  She is devastated she cannot work as a television journalist and pursue the career she had dreamt of.  She believed she could no longer pursue any of the occupations she was qualified for.  If not for her injury, she intended to work as a television journalist, or elsewhere within the television industry.

122     The plaintiff has applied for a very large number of jobs because she is desperate to get out of her situation.  She wanted to try and get work. 

123     The plaintiff did not apply for jobs while she was doing the four months’ pain management program at Epworth in late 2016.[79]  She was involved with Match Works when she was on Centrelink, applying for jobs.[80] 

[79]T78

[80]T71

124     The job applications which the plaintiff provided to the Court had been generated by her on her laptop.[81]  She had been given an interview with some of the jobs but had not been successful getting work.[82]

[81]T101

[82]T102

Volunteer work

125     In late 2017, the plaintiff was working for a family friend through Victorian Healthcare Lawyers once a month.  She also volunteered with the RAISE Foundation for two hours on a Thursday morning at Sunshine College, where she mentored a thirteen year old girl. 

126     The plaintiff did further voluntary work as an administration assistant at the welcome desk at Ronald McDonald House on Friday afternoons; however, she had been sent home a number of times in the previous three months due to her left arm, left shoulder, and neck pain and headaches.

127     The plaintiff is presently in receipt of Centrelink benefits.  She continues to do volunteer work at RAISE and Ronald McDonald House with some difficulty.  She attends the latter on Friday afternoons and has been told to go home early on occasions, when she has been in too much pain.

128     The plaintiff’s volunteer work at both places ceased for several months when she could not drive because of her right ankle injury. 

Current study

129     The plaintiff enrolled in an online Bachelor of Behavioural Studies and Social Sciences at Swinburne and commenced the first teaching period in July 2017 part time.  Last year, whilst she enjoyed the course and was committed to her study, she struggled to keep up as a result of her injury.  Her medication affected her memory, and she often was forgetful and found it difficult to retain information, and needed to reread course materials.  At other times, she could not complete an assignment because she lost her train of thought.

130     With the support of her psychologist, the plaintiff sought an extension from university as she had not been able to meet deadlines.  She worried she would be able to see the course through.

131     The plaintiff continues in the course and is presently doing one subject instead of three.  She finds it very difficult to do the course and struggles to study because of her memory and concentration.  She cannot type properly, and types one handed with her right hand.  Her left hand does not work properly and she does not type accurately with it.  Her typing is therefore slow and she is frustrated she cannot type at her pre-injury level.[83]  She has more power in her right hand than her left.[84]

[83]T87

[84]T88

132     The plaintiff is trying her best with the current course.  She has done six subjects and there are four to go.  She is under Disability Support Services online so she does her exams near her home.[85] 

[85]T84

Treaters

Dr Roziel

133     The plaintiff continues under the care of Dr Roziel, general practitioner, at Medical One Clinic in Taylors Lake.

134     After the incident, Dr Roziel first saw the plaintiff on 20 July 2012.  She then noted the plaintiff slipped and fell, possibly hurting her left shoulder, over a table at work.  On examination, there was a 3 by 4-centimetre bruise over the left anterior shoulder.  The ultrasound and x-ray showed no abnormality.  The plaintiff was then complaining of neck jarring.

135     On 20 August 2012, Dr Roziel referred the plaintiff to neurosurgeon, Ms Tan, for opinion and management regarding persisting left shoulder pain following the work fall.  She noted the current problem was migraine.  As of August 2013, the plaintiff had been prescribed Voltaren and Tramadol.  Feeling dizzy after taking the latter, the dosage was reduced.

136     In a letter to the plaintiff’s solicitors of September 2013, Dr Roziel noted ongoing deterioration warranted pain management clinic referral. 

137     Dr Roziel advised that on 5 January 2013, the plaintiff had a steroid injection in the neck recommended by the neurosurgeon, but neck pain, headaches and left arm pain persisted afterwards, and she was prescribed Targin.

138     The plaintiff was offered psychological counselling.  Her studies were interrupted and she lost the ability to concentrate, and felt tired and affected by strong medication.  She then took a trial of alternative medication which was supported by Dr Roziel.

139     In October 2013, the plaintiff was referred to Mr Paul D’Urso, neurosurgeon, for management of unresolved pain in the left shoulder, chronic headaches and left arm aches, and weakness, cramps and spasms.  At that stage, Dr Roziel then noted the problem was migraine, and the plaintiff’s studies were affected and she struggled with anxiety for her future.

140     In February 2014, the plaintiff was referred by Dr Roziel to Pain Management at Epworth for her management and arranging help with cutting off opiates and helping to manage her pain.  The presenting problem was migraine.

141     In May 2014, Dr Roziel requested WorkCover provide funding for a review with a neurosurgeon.  The plaintiff had developed new neurological symptoms in the last three weeks, with left arm and left face tingling, and reduced sensation.  She was not able to feel hot sensation on her left arm and dropped objects if she held them in her left hand.

142     There was another referral to Mr D’Urso in May 2014.  The presenting problem was noted as “Last three weeks left face tingling and left arm tingling, 5 minutes on and off”, and also the plaintiff had reduced sensation in the left arm on and off.  There was also mention of the lack of temperature in the left arm.[86]

[86]There is no report from Mr D’Urso following this referral

143     In a medical practitioner questionnaire dated 21 October 2015, Dr Roziel advised she was treating Chronic Pain Syndrome in the left shoulder, left lower neck, left fingers and arm pain, and depression and anxiety.  She was currently prescribing Lyrica.  She noted a previous history of headaches.

144     Dr Roziel noted the plaintiff attended two weeks intern work with the Herald Sun as a journalist.  She loved and enjoyed her experience; however, realised the fact that this job required long hours, working unpredictable hours, weekend work, and work away from home.  The plaintiff became anxious before starting the internship.  Dr Roziel thought the plaintiff suffers from left arm Chronic Pain Syndrome and stress, and work amplifies her left neck symptoms.

145     In May 2016, Dr Roziel referred the plaintiff to Mid West Area Mental Health Services – Harvester Clinic, having noted she had recently started on Cymbalta.  The plaintiff’s current problem was anxiety with depression, and the left arm and left neck had chronic pain after a fall at work, and migraine.

146     In October 2017, Dr Roziel supported an application for the renewal of the plaintiff’s gymnasium and swimming memberships.

147     The following entries by Dr Roziel were relied on by the plaintiff:[87]

[87]T151

·        1.8.13 – “left arm spasm, painful spams of the L hand”

·        15.2.14 – “could not feel hot coffee spilled on arm, last 3 week face tingling and left arm”

·        28.8.15 – “left neck spasming on examination L hand colder reduced strength”

·        8.9.15 – “left hand gets colder”

·        4.5.16 – “left arm is worse in colder weather”

·        27.6.16 – “sudden change of condition L shoulder since 16.6, no fall or injury, shooting pains down left arm, left arm colder.”

Dr Tan

148     In September 2012, the plaintiff was referred to Dr Tan, neurosurgeon, for an opinion about the cause of her severe headaches following the injury.  Dr Tan then requested funding for further investigations.

149     On initial examination, Dr Tan noted the plaintiff’s range of neck and glenohumeral movements were good, although she complained of pain in her neck on left rotations.  There was normal power on the right and normal light touch sensation bilaterally.  Motor and sensory examination was normal.

150     In a referral letter to Justin McEvoy, physiotherapist, Dr Tan advised that the plaintiff’s MRI indicated no evidence whatsoever of any disc lesion and no nerve compression.

151     In a letter to Mr McEvoy in November 2012, Dr Tan noted the plaintiff had sustained a tear of the left acromioclavicular joint.  She was making progress with the shoulder injury, but began experiencing trouble with left-sided headaches.

152     In April 2013, Dr Tan referred the plaintiff to clinical Pilates, she advised she had attempted to manage the plaintiff conservatively, and she did not believe there was a good indication for surgery.  The plaintiff had been complaining of intractable axial neck pain and headaches since the fall.

153     Dr Tan noted, as of July 2013, the plaintiff had been prescribed low-dose narcotics and Tramadol.  She was having hands-on clinical Pilates and physiotherapy, which Dr Tan supported.

Physiotherapy

154     Mr McEvoy completed a management plan in November 2012, in which he indicated he thought the plaintiff was likely to return to her pre-injury duties but did not specify the date.  Twenty-eight services were proposed over the following twelve weeks.

155     The plaintiff was also referred to musculoskeletal physiotherapist, Jon Snowsill, in April 2013.[88]

[88]Also seen by Craig Phillips at that clinic

156     On clinical examination, the plaintiff had excellent neck mobility in all directions, although pain was reproduced with extremes of flexion and extension.

157     Given the plaintiff’s slow response to treatment, Mr Snowsill felt it likely her symptoms arose from an unstable cervical segment, which the x-ray findings could well explain, at C3-4.  He also thought a lack of response to the cervical facet joint injections would suggest discogenic pain.  He commenced the plaintiff on a limited home-based stabilising exercise program.

Dr Verrills

158     Dr Paul Verrills, musculoskeletal specialist, first saw the plaintiff on referral from Dr Tan in June 2013.

159     On examination, Dr Verrills noted the plaintiff had maximal tenderness over the C2-3 joint more than C3-4, and that certainly fitted with the neuroanatomy of the cervical trigeminal nucleus.  He advised that he would do medial branch blocks, and, if positive, offer the plaintiff radiofrequency neurotomy.

160     Dr Verrills advised Dr Tan it was also of note the plaintiff had some changes in her left arm, with evidence of it being colder at times, and neglect.  It appeared a little weaker.  Down the track it may be that they consider further management, which could include a T2 sympathetic block and a focussed rehabilitation program.

161     On 16 August 2013, Dr Verrills advised the insurer that the plaintiff’s recent bilateral third occipital nerve and C3-4 medial branch blocks were negative.  He requested finding for bilateral C1-2 intra-articular injections.

Mr D’Urso

162     Mr Paul D’Urso, neurosurgeon, saw the plaintiff on referral from Dr Roziel.  From his reports, it seems Mr D’Urso examined the plaintiff on one occasion on 18 November 2013.[89]

[89]Dr Roziel also referred the plaintiff to Mr D’Urso by letter 15 May 2014, noting CRPS features

163     On physical examination, the plaintiff’s left arm function was globally weak and sensation was altered in the left forearm.  Her reflexes were diminished, yet symmetrical in the upper limbs and normal in the lower.  Cervical range of movement was satisfactory.

164     Mr D’Urso noted the April and November 2013 MRI scans.  He advised that it would be worthwhile to investigate the plaintiff a little more, and arranged an MRI scan of her brain and left shoulder, as well as an electronystagmography (ENG).  He suggested she avoid the temptation of increasing Targin or taking more Endone.

165     In a medico-legal report relating to that examination, Mr D’Urso noted, post incident, the plaintiff reported chronic headaches which could be up to 8 out of 10.

166     Mr D’Urso suggested the plaintiff see a physical therapist with expertise in the management of chronic headaches and upper limb dysfunction, and he thought the opinion of a neurologist may also be worthwhile.  He considered simple anti-inflammatories and analgesic medication would be appropriate.

167     Mr D’Urso noted the plaintiff was currently studying at university.  He thought she then appeared to have a capacity for part-time employment, but not her pre-injury employment.  He recommended she avoid any repetitive or awkward neck movement, and she should not be required to lift weights above her shoulders or perform repetitive movements of her left upper limb, and she should have ergonomic facilities in the workplace.

168     Mr D’Urso thought the prognosis of the condition should be satisfactory.  He noted there was no significant organic pathology other than some minor subacromial bursitis.

Dr Khan

169     Dr Khan, consultant physician in rehabilitation and pain management, supervised the plaintiff’s program at Epworth, and has provided a number of reports.

170     The plaintiff was initially assessed on 5 June 2014.  She was then taking Targin and Panadol.

171     The plaintiff then complained of cranial pain in the occipital and frontal region, with associated dizziness.  She also complained of pain at the superior end of the neck near the base of the skull, associated with occipital headache.  She denied any shoulder pain.  She reported loss of hot and cold sensation in the left arm, and also reported objective weakness, numbness and spasms.

172     Dr Khan’s initial impression was of persistent cranial and neck pain, with subjective symptoms in the left arm of uncertain origin.  Although the plaintiff was on high dose opioids, she had significant pain.  He thought she would benefit from supervised detoxification of her opioids to avoid long-term complications, and requested funding for this program at Epworth.

173     On admission, the plaintiff reported neck pain, with referral to the left shoulder, and left arm weakness.

174     During her inpatient stay at Epworth from 1 September until 12 September 2014, the plaintiff had occupational therapy and psychology, and an intravenously administered ketamine infusion to facilitate detoxification of opioids and rationalisation of analgesic medication in a monitored environment.

175     Dr Khan next reported in June 2015, having reviewed the plaintiff on 10 June.

176     The plaintiff then continued to report severe neck pain radiating to her shoulder, into the left arm and fingers.  It was aching and deep pain.  There was burning and tingling, pins and needles in the fingers of the left hand, and the left arm felt subjectively weak.  Pain was increased by lifting, and general overuse of the left arm and in cold weather, but this improved with heat.  Dr Khan’s impression was of a chronic neuropathic pain syndrome.

177     Dr Khan noted the plaintiff had seen Dr Blombery, who had been trying to manage the situation with Lyrica, but the plaintiff felt the pain was not well controlled, and it was affecting her ability to socialise with her friends and use her left arm in general.

178     Dr Khan thought it important to have a repeat MRI scan of the left shoulder and neck.

179     Dr Khan reviewed the plaintiff in December 2015.  Her left arm had resolved since starting Lyrica; however, the dose was high and she felt slow and fatigued on it.  Dr Khan thought it would be worthwhile gradually weaning her off if her pain remained controlled.

180     Dr Khan reviewed the plaintiff in January 2016.  He wrote to Dr Roziel, thanking her for supervising the weaning off Lyrica, which was down to 150 milligrams in the morning and 75 milligrams at night.  The plaintiff felt cutting the dose down further led to a resurgence of neuropathic pain.  She had undergone acupuncture which had been helpful with relieving upper limb symptoms.

181     Dr Khan asked Dr Roziel to continue to monitor the plaintiff’s pain level and address weaning off Lyrica again in about a month. 

182     In March 2016, when seen by Dr Khan, the plaintiff looked well.  She had recently completed her internship with the Herald Sun.  She found the work very enjoyable, but found she could only work three days and spent the other two in bed.  She was now looking for suitable work as a journalist.

183     Dr Khan advised the plaintiff she should try to wean the Lyrica down to the most critical doses.

184     On review in September 2016, the plaintiff continued to struggle, with pain radiating from the left neck down to the arm, and involving the left hand.  The attempted weaning off Lyrica did not go well, and there was a recurrence of pain.  Dr Khan thought it time the plaintiff underwent a multi-disciplinary pain management program, in which she could learn non-pharmacological strategies.

185     Dr Khan’s impression was of persistent cranial neck pain with subjective symptoms in the left arm of uncertain cause.  He thought the plaintiff would benefit from supervised detoxification of her opioids to avoid long-term complications, and that would require two weeks’ admission to Epworth for the ketamine infusion.

186     Having seen the plaintiff in April 2017, Dr Khan noted her problems were in status quo.  He thought symptoms were likely consistent with CRPS of the left upper limb.  In March 2017, he had discussed with her the introduction of a Stimwave wireless neuromodulation device; however, she was concerned about the prospect of an implant.

187     In May 2018, Dr Khan again saw the plaintiff.  He noted she was diagnosed with lymphocytic gastritis in late 2017, and that she had had a fall and broken her right foot in March 2018.  Neck pain and arm pain were in status quo.  Anxiety and depression were worse, and Dr Datta had increased the psychiatric medication.  A DEXA scan was planned to exclude osteoarthritis relating to the fall.

Dr Blombery

188     Dr Blombery, consultant physician in vascular disease, saw the plaintiff on referral from Dr Roziel in October 2014.

189     In his report dated 16 October 2014, Dr Blombery noted the incident circumstances, the shoulder dislocation, the onset of left neck pain, and that the plaintiff’s shoulder pain improved markedly. 

190     The plaintiff’s current complaint was ongoing pain in the neck and headaches, and she was concerned she was not able to use her left arm.  It was very weak, as well as there being autonomic disturbance.

191     On examination, there was a full range of left shoulder movement of the left shoulder, which was quite tender over the neck and below the trapezius.  The left hand was 1.5 degrees cooler than the right and redder in appearance than the forearm.  There was a significant reduction in sensation in the left arm.  Left hand power was 2 kilograms versus 30 kilograms on the right.

192     Dr Blombery thought the plaintiff had fairly classical features of CRPS Type 1, affecting the left arm, and she may have some subclinical injury to the brachial plexus, although there was no hard evidence.  She appeared not to have been trialled on Lyrica, and therefore he was giving her a gradually increasing dose, as well as a reducing course of oral prednisolone.

193     In November 2014, Dr Blombery noted the plaintiff had had some improvement transiently with the prednisolone when it was at its highest dose but less benefit when the dose was reduced.  She had obtained a job in the last three weeks, working at Werribee racecourse doing administration work, and she seemed to be coping with this reasonably, although she said her pain had increased somewhat.

194     In March 2015, Dr Blombery advised Dr Roziel that the plaintiff remained on Lyrica, 140 milligrams, which had reduced her pain a little more.  Her major problem was the fact she had a relatively useless left arm and this appeared to be due to central disuse rather than any local pathology.  Further, formal pain management with Dr Khan was requested.

195     The plaintiff next attended Dr Blombery, at the request of her solicitors, in April 2016.

196     The plaintiff was then taking 150 milligrams of Lyrica.  It had stopped spasms.  She still had reduced strength in the left arm, and if she lifted something that was heavier, she developed shooting pains in the left arm.

197     The plaintiff had finished her course and was looking for part-time work.  She reported her left arm became blue and cold, but there was no excessive sweating.  She also had some reduced sensation.  She sat poorly because of the pain and she was depressed.  She was then also taking Cymbalta, Panadol and Nurofen. 

198     On examination, the plaintiff’s left hand was 1.5 degrees cooler than the right.  On the dorsum of the left arm, it was generally tender, and the power of hand grip on the left was 4 kilograms versus 26 kilograms on the right.

199     Dr Blombery thought the plaintiff continued to have features of CRPS Type 1, affecting the left arm.  She did not use the arm very much and she had quite a strong motor component of the syndrome, with lack of arm function; however, there appeared to have been some improvement since last seen.  She needed to stay on Lyrica, and to have the movement of the left arm continue.

200     Noting it had now been almost four years since the injury, Dr Blombery thought the plaintiff’s symptoms were improving a little, and it was likely in the longer term she would be left with significant disability affecting her left arm.  She would be able to do part-time work, mainly using her right arm in activities such as journalism.

201     Dr Blombery confirmed that CRPS Type 1 is an organic disorder of pain in the pathways, not a psychological disorder.  He confirmed he noted a significant reduction in temperature on two occasions.  When he first saw the plaintiff there were differences in colour of the left arm.  She therefore filled the diagnostic criteria for the syndrome.

202     Dr Blombery thought the plaintiff’s failure to use her left arm was not under her conscious control, and it was quite often seen in patients with this disorder.  He considered she should be encouraged to use it as much as she could.

203     Dr Blombery considered the prognosis for recovery was moderate to poor.  He thought the left shoulder injury triggered the development of a CRPS.

204     On re-examination on 21 June 2018, the plaintiff told Dr Blombery her symptoms were unchanged.

205     On examination, the plaintiff was quite depressed and cried, and said she needed her life back.  Her left arm was bluer than the right, and the left hand was 5 degrees cooler than the right.  Also, there was tenderness all the way up the left arm from the hand to the neck, and that tenderness was particularly marked proximally.  There were some involuntary movements in the left arm when the plaintiff attempted to perform activities, and only minor tenderness in her forearm.

206     Dr Blombery thought the plaintiff continued to have features of the syndrome affecting her left arm.  She had a combination of ongoing pain, together with significant autonomic disturbances with marked changes of temperature and colour of the arm, and she filled the basic Budapest criteria for the diagnosis of the syndrome.

207     Noting Dr Horsley’s June examination where no autonomic disturbance was present, Dr Blombery commented it was typical of the syndrome that the severity of the physical signs fluctuate quite markedly from time to time and that does not exclude the diagnosis at all.

208     Dr Blombery thought the syndrome was precipitated by the dislocation, and most of the aftermath of that had resolved from the pathological point of view; however, the plaintiff had ongoing sensitisation of pain in her pathways, which was the essence of the excessive pain that patients with the syndrome experience.

209     In terms of future medication, Dr Blombery thought the plaintiff could be very carefully given a Norspan patch.  In his opinion, there would be very little change, if any, in her level of disability in the future.

210     Dr Blombery thought the plaintiff has no capacity for pre-injury work, either now or in the future.  In relation to suitable employment, she is right-hand dominant and able to do some work with that hand.  She may be able to do part-time clerical work, but it would be important that her psychiatric complications resulting from pain were controlled before that was trialled.  She would have marked restrictions, including no repetitive lifting and no lifting of weights over 5 kilograms with her right arm, no use of the left arm, and frequent rest breaks, beginning work for only a few hours a week. 

211     Dr Blombery noted the plaintiff had been quite depressed, and that she was on a waiting list to go into hospital because of anxiety and depression.

Mr Price

212     The plaintiff was seen by Mr Rowan Price, orthopaedic surgeon, on referral from Dr Roziel in August 2016. 

213     On examination, the plaintiff’s neck range of motion was reasonably normal and she found her left-side symptoms got worse when she rotated her neck to the left. 

214     For completeness, Mr Price thought it worthwhile having an MRI scan of the left shoulder, but he expected it to be normal.  He thought the plaintiff’s pattern of symptoms was difficult to explain from a structural point of view.

215     Mr Price reported that the subsequent MRI scan was essentially normal and he thought the plaintiff would benefit from seeing a pain specialist once again, and also seeing a physiotherapist to address her symptoms and optimise her analgesia.

Epworth

216     Jack Behne, the senior physiotherapist at Epworth, advised the insurer in December 2017 that the plaintiff had completed the pain management program.  He noted she experienced persisting left arm and shoulder pain which behaved in a neuropathic-like fashion and considerably limited her function, quality of life, mood and sleep.  The pain had not improved with multiple treatment strategies.

217     The plaintiff, however, reported significant benefits from regular pool and hydrotherapy activities.

Dr Connelly

218     Dr Connelly, gastroenterologist, first saw the plaintiff in November 2013 when she presented with severe abdominal pain two weeks after a laparoscopic cholecystectomy.[90]

[90]5 November 2013 – Royal Melbourne Hospital

219     In Dr Connelly’s view, the plaintiff’s illness related to the previous use of non-steroidal anti-inflammatory drugs.  He thought the management of her condition was difficult, noting the functional component of this illness would usually respond to all medication the plaintiff has taken anyway for her chronic pain.

220     The plaintiff again saw Dr Connelly in February 2018, after her gastroscopy and colonoscopy in late 2017.

221     Dr Connelly advised Dr Roziel that the scope was somewhat reassuring.  He suspected Nurofen was the cause of both gastritis and the upper gut symptoms.  He suggested stopping Nurofen and going on to a proton pump inhibitor for two weeks.

Psychological/psychiatric treatment

Ms Noor

222     The plaintiff has attended counselling with psychologist, Dayana Noor, since June 2013.  

223     In February 2015, Ms Noor asked Swinburne for special consideration for the plaintiff in terms of her health – Depression, Regional Pain Syndrome and adenomyosis. 

224     Dr Roziel referred the plaintiff to Ms Noor in July 2015.  Ms Noor advised Dr Roziel that the plaintiff’s main issues and presenting problems then were depressed and anxious mood, chronic pain to the left shoulder and bereavement due to the death of her aunt in Sweden in August 2014 and the death of her best friend in July 2014.[91]

[91]Also detailed in psychological questionnaire of 26 October 2015

225     In addition to those main issues and presenting problems in December 2016, Ms Noor noted there was also the death of the plaintiff’s uncle in December 2016 and vocational issues, and unemployment due to the pain condition.  On that occasion, the plaintiff reported a severe level of global distress.

226     In May 2017, the plaintiff’s main issues and presenting problems were depressed and anxious mood, chronic pain to the left shoulder, vocational issues, and unemployment due to her pain condition.  These were also listed as the main issues in August 2017.

227     Ms Noor provided a detailed report in July 2018.

228     In Ms Noor’s view, the plaintiff appeared to have no current work capacity to undertake employment.  This incapacity was due to a severe pain condition which, in turn, affected her mental state and daily functions.  She diagnosed an Adjustment Disorder, Depressed Mood, Anxiety and stress.

229     Ms Noor noted the plaintiff reported she was able to shower on her own but had difficulty raising her left arm, which impacted on her ability to wash, dry and comb her hair.  Her pain condition also affected her ability to participate in family and social activities.  The plaintiff reported that although she made an attempt to attend when invited, she often had to leave early or ended up cancelling. 

230     Ms Noor thought the plaintiff would benefit from continuing treatment, psychological therapy, psychiatric consultation, rehabilitation services and pain management.

Dr Datta

231     Dr Datta, psychiatrist, first saw the plaintiff on referral from Dr Roziel in July 2016. 

232     At that stage, Dr Datta thought the plaintiff was going through an Adjustment Disorder with Depressed Mood in the context of chronic pain issues.  In his view, it would be a rather long and complex journey for her to get a little bit better, and he was pleased she had been having the help of a psychologist for the past two years.  He suggested a further increase in anti-depressant medication.

233     In September 2016, Dr Datta advised Dr Roziel that he was getting the plaintiff to focus on the here and now, and that was a little bit of a challenge as the pain was very disabling and she seemed to reveal symptoms suggestive of the syndrome.

234     In March 2017, Dr Datta advised he had been seeing the plaintiff on an ongoing basis, and he had encouraged her to get increasingly involved with community and voluntary activities as she was feeling marginalised and sidelined.

235     Duloxetine continued to be prescribed.  Dr Datta encouraged the plaintiff to involve herself increasingly in voluntary activities for the management of depression, rather than being home and isolated watching television.

236     In October 2017, Dr Datta advised that as a consequence of chronic pain and disability, for which there had been a number of treatments, all of which had not been helpful, the plaintiff had developed a depressive syndrome and was being treated for major depression with anti-depressants.  Her symptoms persisted.

237     Dr Datta noted throughout the day, the plaintiff was tired and lacked motivation, was not able to force herself to do anything in particular in relation to work.  He had attempted to send her for volunteer work, but that had also been unsuccessful despite her best efforts.

238     Dr Datta felt that the plaintiff’s depressive symptoms, panic attacks, social withdrawal, lack of motivation, and, most importantly, the chronic pain which is not relieved by medication, rendered her unable to both work and look for work.

239     The formal diagnosis was of a Chronic Pain Disorder and Major Depressive Disorder.  Dr Datta thought that the plaintiff had a significant disability with her panic attacks.

240     In his medico-legal report of July 2018, Dr Datta advised that despite all interventions, the plaintiff continued to be depressed and anxious as the frustration of dealing with her chronic pain continued.  Adjustment Disorder with Depressed Mood was the diagnosis, secondary to chronic pain, and that will continue for as long as she continues to suffer from chronic pain.

Medico-legal examiners

Dr Lange

241     Dr Lange, occupational physician, examined the plaintiff on behalf of the insurer in November 2012.

242     Dr Lange then noted that after the incident, the plaintiff experienced pain in the left shoulder for a few weeks, then started developing spasms and headaches.

243     At that stage, the plaintiff suffered from headaches on a daily basis, usually two or three times a day, which could last 10 minutes or all day.  The pain usually started in the occipital region, then radiated to the parietal area intermittently between both eyes.

244     The plaintiff also had stiffness in the neck and difficulty rotating her head to the left.  She felt her left shoulder was better than it was previously, but the muscles around it felt weaker than on the right.

245     At that stage, Dr Lange thought the plaintiff demonstrated no evidence of any abnormal illness behaviour.  There was a near normal range of cervical movement.  There was a full range of pain free movement of the shoulders. 

246     Noting the November 2012 MRI scan of the cervical spine and tenderness over C3-4 on palpation, Dr Lange thought the plaintiff sustained a marked ligamentous injury of the cervical spine as a result of the fall, and that the anterior translation of C3 on C4 seen in flexion was an indication of cervical instability.

247     Dr Lange then did not think the plaintiff had a capacity to undertake her pre-injury employment due to her cervical pain, severe headaches and radiation to the left arm, along with the radiological findings of anterior translation at C3 on C4.

Dr Horsley

248     Dr Horsley, occupational physician, initially assessed the plaintiff in December 2015 and more recently saw her in June 2018.

249     On the first occasion, the plaintiff was to start an internship at the Herald Sun in February 2016.

250     On examination, the plaintiff reported no specific pain in the left shoulder, primarily experiencing neck and left arm pain.  She suffered chronic headaches that varied from 3 out of 10 up to 9 out of 10, and when at that high level, spent the day in tears in bed.

251     Examination of the cervical spine revealed diffuse tenderness on palpation.  There was also acute touch sensitivity on palpation through the left trapezius and down the left scapula, but not on the right.  Upper arm circumference was 29 centimetres on the left and 30 on the right, and forearm circumference 21.5 on the left and 19.5 on the right.

252     Neck movements were relatively normal.  There was a good range of bilateral shoulder motion.  There was a global reduction in sensation below the elbow.  There was equally a reduction in temperature sensation and vibration sensation.  Reflexes were reduced but present bilaterally.  With testing for specific muscle strength on the left, there was global weakness throughout all the muscle groups of the left arm compared to the right.

253     Dr Horsley thought the plaintiff presented with persistent cranial and neck pains and subjective symptoms in the left arm of uncertain cause.  On assessment there was no evidence of CRPS.  There was no change in colour, no sweating, and no excessive hair.

254     Dr Horsley believed the plaintiff would benefit from psychiatric review and from further physical activity.  If her depression and anxiety remained at a high level, she was concerned reliability would be an issue.  She noted the plaintiff was studying for 16 to 20 hours a week.  In the ideal world, commencing an internship on a part-time basis would be fruitful.  She was concerned about the plaintiff’s potential reliability, which would significantly impact on her employer’s decision to continue with the internship after she had completed one month.

255     Dr Horsley suggested ergonomic assessment be done of the workstation, with the plaintiff able to change posture every 30 minutes, and not lift more than 5 to 8 kilograms repetitively, and avoid repetitive above-shoulder activities. 

256     Dr Horsley thought the role of a journalist should be within the plaintiff’s physical capacity, provided she was able to change her posture regularly and the ergonomics of the workstation were sound.  She considered reliability may be an issue with the plaintiff’s ongoing severe cervicogenic headaches that happened once or twice a week, and a level of depression and anxiety which needed to be actively managed.

257     On re‑examination in June 2018, the plaintiff said she had daily headaches and chronic neck pain.  She advised her depression was a significant issue, but her panic attacks were now better controlled since the Epworth Pain Management Program.

258     The plaintiff advised that she experienced sweatiness in the palm of her left hand and spasms into the left forearm and hand intermittently, and there could be a change in colour in her hand in the cold.

259     The plaintiff was tearful throughout most of the interview, and there was considerable distress.

260     On examination, there was a significant reduction in left shoulder motion which was not present at the previous examination.  Cervical movement was mildly restricted.  There was no evidence of the syndrome, no sweatiness, no change in colour, no lanugo hair, and no swelling.

261     There was a reduced range of left elbow movements.  Left wrist movement was half the normal range, with the plaintiff advising she did not have the power to move her left wrist.

262     Dr Horsley thought the plaintiff presented with persistent cranial and mechanical neck pain and ongoing widespread symptoms throughout the upper limb.  There was no evidence of CRPS Type 1.

263     Dr Horsley noted the plaintiff presented with a greater level of disability than in December 2015.  She had no current realistic capacity for work.  Depression had elevated since the last time, and she presented with considerable disability.

264     If the plaintiff’s level of pain became manageable and her Major Depressive Disorder was successfully treated, then Dr Horsley thought she would be fit to work at an ergonomically sound workstation with restrictions on lifting, the ability to change her posture, and no above shoulder height work.

265     In Dr Horsley’s view, the role of a journalist from a physical perspective would be within the plaintiff’s capacity, provided she could change her posture regularly and the ergonomics of the workstation were sound.  The plaintiff’s current concentration, attention span, motivation, fatigue, and chronic pain, all militate against even considering applying for work, let alone attending work reliably.  She thought the plaintiff presented with no current capacity for work.

Investigations

266     There was an MRI scan of the cervical spine on 7 November 2012.  No pathology was seen.  There was also an x-ray on that date which showed some slightly exaggerated anterior translation of C3 on C4, but otherwise normal vertical body alignment.

267     The following investigations were also undertaken:

§   an x‑ray of the cervical spine on 12 April 2013

§   a nerve conduction study on 17 January 2014

§   an MRI scan of the cervical spine on 2 September 2014

§   an MRI scan of the cervical spine and left shoulder on 28 July 2015

§   an MRI scan of the cervical spine on 28 June 2016

§   an ultrasound of the left shoulder on 30 June 2016; and

§   an MRI scan of the left shoulder on 6 September 2016.

Psychiatric

Dr Tagkalidis

268     Dr Tagkalidis, psychiatrist, examined the plaintiff on behalf of the insurer in December 2015.

269     The plaintiff advised that she was to start an internship at the Herald Sun early in the New Year, and that her neck and left arm condition and depression and anxiety largely continued unabated.

270     The plaintiff advised she currently experienced ongoing frustration regarding her neck pain and physical limitations.

271     In terms of her current functional status, the plaintiff said she was independent in all activities of daily living.  She showered every day and dressed every day with relative disinterest in self-presentation, and she needed her mother’s help.  Her mother was responsible for all household tasks, and the plaintiff did very little.

272     The plaintiff was then taking anti-depressants and Lyrica.

273     Dr Tagkalidis had available Dr Jager’s August 2013 report, and a number of other treaters’ reports.

274     Dr Tagkalidis concluded the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, relevant to the accepted injury.  It was not possible to definitively diagnose a Chronic Pain Disorder given the diversity of medical opinion.  He thought her condition was permanent.

Dr Strauss

275     Dr Nigel Strauss, psychiatrist, first examined the plaintiff in September 2017, and re‑examined her in August this year. 

276     On the first attendance, the plaintiff said her part-time course and was difficult because her memory and concentration were adversely affected by her pain level.

277     Dr Strauss thought the plaintiff was a genuine individual who had not coped well with her problems, and that any emotional distress that was being manifested in the form of pain was unconsciously derived.  He thought in the last year her condition had stabilised and the situation was poor.

278     From a purely psychiatric point of view, Dr Strauss considered the plaintiff suffered from a moderately severe Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Somatoform Disorder – a pain disorder associated with a medical condition.  The pain she experienced was both organically and psychologically related.

279     Dr Strauss thought psychological factors alone were not causing a total incapacity.  In his view, the plaintiff had a partial incapacity for work on those grounds alone.

280     On re‑examination in August this year, the plaintiff presented in a very emotional state, telling Dr Strauss that two days earlier her father had been diagnosed with bowel cancer.  Dr Strauss noted that unfortunately the plaintiff’s condition had not altered appreciably since he last saw her, and her problems had been added to by her father’s illness.

281     Dr Strauss still believed the plaintiff suffered a genuine physical injury some years ago which had precipitated a gradual significant psychological decline.  She now presented with a moderately severe Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a Somatic Symptom Disorder, which would account for much of her pain. 

282     Dr Strauss considered the plaintiff is a genuine individual who has not coped well, and she is now chronically incapacitated, and on psychiatric grounds alone, she cannot work, irrespective of her physical condition.  She needed to see a psychologist fortnightly, and a psychiatrist, and she needed to continue with her current medication.  He thought the plaintiff will not work into the foreseeable future.  Further, she is extremely limited in relation to domestic, recreational, social and personal activities because of her work-related psychiatric problem.

350     Dr Jager thought the plaintiff had an Adjustment Disorder with Depressed Mood secondary to the physical injury.

351     In Dr Jager’s view, the plaintiff could not return to work in her pre-injury duties and hours and he considered she was fit for half-time work, not involving intense concentration within her physical capacities.  Her capacity for work should be reviewed in six months.

Dr Entwisle

352     Dr Timothy Entwisle, consultant psychiatrist, first examined the plaintiff in September 2014. 

353     The plaintiff then continued to complain of severe headache and neck pain.

354     In terms of her mood, the plaintiff described feeling alone and helpless and that she would isolate herself and spend prolonged periods in her room.  Her mood was flat and she would cry for no reason.  Since the detoxification program, her mind had cleared and she was no longer tearful.  She was less confused but still worried about the future.  Her energy was low, but had improved.  Her memory and concentration were horrible.

355     Dr Entwisle thought the plaintiff had an Adjustment Disorder with Depressed and Anxious Mood, iatrogenic opiate addiction and a Pain Syndrome.  He thought she was no longer depressed, but she remained somewhat anxious in respect to her various experiences and ongoing pain concerns.

356     Dr Entwisle considered the plaintiff’s injury had resulted in the development of a medically derived opiate addiction.  There were also indications of a Pain Syndrome.  She no longer presented with psychiatric symptoms, but remained concerned and insecure in regards to the future.

357     Dr Entwisle thought the plaintiff, from a psychiatric perspective alone, had a capacity for her pre-injury duties and hours but, nonetheless, a pain management program would be of assistance to her.  He did not think it appropriate for her to continue attending her current psychologist.

358     In Dr Entwisle’s view, the plaintiff would not be deemed not to have no work capacity.  Unfortunately, she had now developed a conviction that she had some form of organic problem involving her left arm – that appears not to be borne out by Mr Nye’s assessment.  Therefore, a pain management program was suitable.  He believed the plaintiff would have a capacity to engage in various work options subsequent to her attendance at a pain management clinic.

359     Dr Entwisle reviewed the plaintiff in January 2016.

360     The plaintiff continued to describe pain in her neck, left arm and hand.  Since Lyrica, the spasms had reduced, but she described some brief symptoms of tingling in her left hand and forearm. 

361     The plaintiff described a reasonable level in regard to her ADLs.  She did nothing at home and her parents cared for her.  Dr Entwisle thought she appeared to have developed a somewhat passive approach to her injury.

362     The plaintiff advised things were good at home and her parents were supportive.  She was frustrated, and it was not how she expected her life to be, having worked at Channel 7 from the age of sixteen and being a step ahead.  Her spirits were not the best, and she felt useless and a failure, and she lacked confidence.  Her sleep was variable and her energy low.  Her memory and concentration had improved with the reduction in the dosage of Lyrica.

363     Dr Entwisle confirmed his earlier diagnosis, with the opioid addiction in remission. He thought the plaintiff impressed as having developed a dependent and passive stance in regard to her injury.  He considered she had capacity for activities of daily living.  He would not suggest ceasing treatment at that stage.

364     There was a re-examination in February this year. 

365     The plaintiff then reported her sleep was horrible due to pain and worry, her energy was low and she lacked motivation.  She was withdrawn, she had little social life and nothing was like it used to be when she was never home and always out.  She was anxious and had panic attacks and was worried about her future and her health.

366     Dr Entwisle confirmed his earlier diagnosis.

367     Dr Entwisle had available the reports from Dr Tan, Mr Nye and Dr Blombery.

368     Dr Entwisle was also provided with extensive typed unsigned entries from Ms Noor’s notes, which detailed a number of bereavements with the plaintiff’s family and friends.

369     Dr Entwisle noted, while the losses were mentioned, they appeared to receive relatively brief focus in the overall treatment plan, with a more utilitarian approach focusing on symptoms and pain relief, rather than the possibly more significant contributory factors, the significant numerous losses the plaintiff had sustained. 

370     Dr Entwisle commented, similarly, pain management can, at times, miss the underlying psychological drivers of pain.  He noted significant focus on the plaintiff’s treatment with medication which, in the end, resulted in an iatrogenic dependence on various addictive preparations.

371     Dr Entwisle noted that, on the first examination, the plaintiff did not describe the significant losses she had endured, as contained in the recent documentation.  He thought, as such, psychological factors were likely to be a very significant contributor to her experience of pain, and if her pain symptoms were taken at face value and managed purely from a symptomatic perspective, the deeper cause of her symptoms will be lost.

372     In Dr Entwisle’s view, the lack of any improvement in the plaintiff’s overall condition may well point to aspects of her treatment following a more symptomatic path rather than an holistic approach.  The prognostic concern, in that regard, was the plaintiff’s statement to the effect that she had found the pain management program unhelpful.

373     On this occasion, the plaintiff appeared to be following up some study, but was heavily symptom focused and given many years of treatment, there may well be a certain resistance to her considering she can return to work, having become reliant on a range of medications and treaters in the process. 

374     Whilst he could not comment on what would constitute suitable employment, Dr Entwisle thought a focus on the plaintiff working in some capacity is critical to her overall prognosis.  He considered the prognosis was guarded.

Vocational evidence

375     Robyn Willett, employment placement consultant from Recovre, provided a Vocational Assessment Report dated June 2018.

376     Ms Willett had available to her Dr Strauss’s 2017 report, Mr Barton’s 2018 report, the plaintiff’s November 2017 affidavit and 2018 medical reports from Professor Davis and Dr Entwisle.

377     When plaintiff was interviewed on 13 March 2018, she reported constant weakness and pain in the left arm.  She held her left arm close to the body and there was very limited function with that arm, and limited lifting and carrying.

378     Ms Willett thought the plaintiff had transferable work skills, customer service skills, communication skills and computer skills.

379     Based on the plaintiff’s education, work history, transferable skills, and based on opinion, Ms Willet thought she retained a capacity for suitable employment.  The following work options had been identified:

·        Customer service officer – $978 gross per week, an assessed role, based in Keilor Park

·        Warehouse clerk – $1,100 gross per week, with a company which distributes pharmacy products, based in Somerton

·        Appointment setter – $969 gross per week, with a business which sells soft furnishings, based in Thomastown; and

·        Logistics clerk – $1,100 per week, with a company which imports and distributes wellness products, based in Campbellfield.

380     The following jobs were also suggested as suitable:

·        Production clerk – $1,150 gross per week

·        Despatch clerk – $1,100 gross per week

·        Order clerk – $1,150 gross per week

·        General clerk – $1,000 gross per week

·        Administration assistant – $1,000 gross per week

·        Receptionist – $900 gross per week

·        Enquiry/information officer – $978 gross per week; and

·        Rental sales person – $1,095 gross per week.

381     The following career opportunities were available following upon successful completion of the bachelor of social studies course at Swinburne:

·        Counselling supporter – $1,330 gross per week

·        Child protection officer – $1,364 gross per week

·        Community worker – $1,084 gross per week; and

·        Human Resources officer – $1,339 gross per week.

Overview

382     The application pursuant to sub-paragraph (a) related to an impairment to the neck, with referred left arm pain and associated headaches and CPRS Type 1.  There was no separate application in relation to the left shoulder.[92]

[92]T3

383     Counsel for the defendants submitted any impairment was not organically based and that any consequences thereof were not permanent.[93]

[93]T7

384     The application pursuant to sub-paragraph (c) was brought in relation to an Adjustment Disorder with Depressed and Anxious Mood.[94]

[94]T4

385     Counsel for the defendants submitted any psychiatric impairment was not severe.[95]

[95]T7

386     There is no dispute the plaintiff suffered a physical injury in the incident.  Her claim for weekly payments for a left shoulder injury was accepted by letter dated 3 September 2012.  Her claim pursuant to s98C in relation to the left shoulder and neck was also accepted in 2015.[96]

[96]Letter dated 30 December 2016.  Liability rejected for CRPS Type 1, left arm and paraesthesia in fingers.

387     It was not accepted however that the plaintiff suffered a dislocation of her left shoulder in the incident.  It was submitted by counsel for the defendants that there was no such dislocation and, accordingly, Dr Blombery’s diagnosis of CRPS, based on the occurrence of the dislocation, should not be accepted.[97]

[97]T118

388     However, as I indicated during the hearing, a dislocation is not a prerequisite for the diagnosis of CRPS and there had been a shoulder injury which was accepted by the defendant.[98]  Counsel for the defendants effectively conceded a dislocation was not a prerequisite to the development of CPRS.  There had to be an injury.[99]

[98]T119; T146

[99]T119

389     Whilst the plaintiff had suffered headaches pre incident, counsel for the defendants did not make any submission that this should be treated as an aggravation case and that the principles in Petkovski v Galletti[100] apply.[101]

[100] [1994] 1 VR 436

[101]T131

Credit

390     The plaintiff’s credit was central to the defendants’ case in relation to both applications.

391     It was submitted the DVD showed a level of movement and activity inconsistent with the plaintiff’s affidavit evidence, her presentation to doctors, particularly in recent times, and her level of movement demonstrated in the witness box.

392     It was submitted there was no restriction of movement, no apparent lack of use of the left arm, no holding of that arm by the right, and examples of movements inconsistent generally with the plaintiff’s evidence such as pointing for a cigarette and having her left arm extended without support whilst having her nails done.

393     There was however 138 hours of surveillance and only one and half hours of film.  Whilst I accept in general terms the description of the DVD by counsel for the defendant, the plaintiff was not shown doing anything much at all in the film.  She was filmed sitting, walking, briefly driving, having a coffee with a friend and having her nails done.

394     The other point relied upon by the defendants in terms of credit was the plaintiff’s evidence of her initial attendance at the clinic on the day after the incident and having her shoulder relocated and then returning later that day for the attendance that was recorded.

395     Clearly, there is no note of that earlier attendance or details of any x-ray earlier in the day; however, the note is somewhat confusing and the plaintiff has, from early days, given this history.[102]  In any event, this issue did not cause me particular concern in relation to the plaintiff’s credit.

[102]See paragraph [44] of this Judgment

396     I found the plaintiff to be a very emotional, pain focussed young woman who, as a number of examiners have described, has a genuine belief that she has a significant disability.

397     Counsel for the defendants also submitted the lack of a supporting affidavit from the plaintiff’s mother was a relevant factor as to whether the plaintiff had discharged the necessary onus.[103]

[103]T145; Merhi v Ford Motor Company Australia Limited [2014] VSCA 328

398     Whilst it not uncommon for a plaintiff to provide supporting affidavit material from family members or friends, in this case, the lack of such an affidavit from the plaintiff’s mother does not impact to any extent on the weight to be attached to the plaintiff’s evidence, particularly where her mother was present during the hearing and, from the available evidence, provides a continuing support to her. 

Pain

399     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[104]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”

[104](2010) 31 VR 1 at paragraph [11]

400     The plaintiff presently complains of a significant level of left arm restriction as demonstrated in the witness box.  She still has hot and burning pain in her left neck and shoulder that radiates down her left arm.  She has headaches that worsen when her neck pain increases.  Her left arm still feels weak and spasms, and her hand still swells, goes purple and feels cold.

401     In recent times, the plaintiff has complained to examiners of significant neck pain and restricted left arm movement and feelings of weakness, temperature and colour change in the arm.

402     The plaintiff’s focus has been on her neck and left arm, as consistently noted by Dr Roziel – not her left shoulder, save for brief mention in mid 2016 by Dr Roziel but even then on examination, she did not note problems in the shoulder.[105]

[105]T148

Is the cervical condition organically based?

403     In Meadows v Lichmore Pty Ltd,[106] Maxwell P set out the two-step manner in which I ought to approach the task in this case:

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[106][2013] VSCA 201 at paragraphs [21]-[22]

404     Counsel for the plaintiff submitted there had been a great consistency in the plaintiff’s complaints of neck and left arm problems, particularly to Dr Roziel, with findings of spasm and temperature change on a number of examinations.[107]

[107]T147; T151; see also paragraph [148] of this Judgment

405     Dr Roziel has at no time questioned the genuineness of the plaintiff’s complaints or mentioned any inconsistencies in her presentation on examination.  This was also the situation with other treaters, including the plaintiff’s psychologist, Ms Noor, who has seen the plaintiff numerous occasions.[108]

[108]T153

406     It was submitted the plaintiff has not gone so far as to say she is unable to use her left arm - she uses it for activities such as typing[109] and has described her difficulty doing so. 

[109]T150

407     Further, it was submitted it was understandable the plaintiff concentrates on her arm symptoms when examined and that she was careful how she moved her arm to avoid experiencing pain.[110]

[110]T150

408     Reliance was placed on Dr Blombery’s finding of CRPS Type 1 on numerous examinations and findings by Dr Roberts in July 2014 and Professor Davis this year of features of the syndrome on examination.[111]

[111]T152; also Dr Verrills’ report of 2013

409     Counsel for the defendants submitted that any present cervical impairment lacked a substantial organic basis and that the plaintiff had not successfully disentangled the psychiatric from the physical component to establish serious injury.[112]

[112]T120

410     Firstly, it was submitted the plaintiff’s presentation to Dr Strauss and other recent examiners and her level of movement demonstrated in the witness box was inconsistent with the DVD which showed no difference in her use of either limb and no apparent restriction.[113]

[113]T120

411     The plaintiff was “unequivocal” that her left arm is virtually useless.  Until the hearing, she had not described a “good day/bad day” scenario and cannot now use that as a “lifebuoy” to explain her inconsistent presentation.  Further, it was submitted the plaintiff “tailored” her histories to fit in with what she believed was an injury to her neck.[114]

[114]T122

412     Noting the concession by counsel for the plaintiff there was no significant radiology,[115] counsel for the defendants submitted if there was no local pathology to explain the plaintiff’s use less left arm,[116] her condition must be non-organic and that is why pain management has been recommended.[117]

[115]T123

[116]Dr Blombery’s report of March 2015

[117]T125

413     Dr Blombery himself talks about the plaintiff’s lack of use of her left arm which was not under her conscious control.  It was submitted this represented a non-organic or psychiatric component to the plaintiff’s presentation.  A similar view was shared by Dr Strauss, who considered that some of the plaintiff’s pain is psychologically based on an unconscious level.[118]

[118]T127

414     Dr Blombery also thought psychological factors were relevant to the plaintiff’s capacity to return to part-time work, noting that it would be important that her psychological and psychiatric complications resulting from her pain were controlled before a return to part-time clerical work was trialled.[119]

[119]T129

415     Further, reliance was placed on Mr Dooley’s view, having seen the clinical notes predating the incident, that the plaintiff had the propensity to overreact to misfortune in terms of health issues, and that this has become somewhat full blown since the injury.[120]

[120]T131

416     In my view, the plaintiff’s current cervical impairment lacks a substantial organic basis and I am not satisfied that she has successfully disentangled organic consequences that are “serious”.

417     Clearly, the plaintiff has undergone a range of treatments for her neck condition which have been recommended by her treating doctors.  These include:

·        Physiotherapy;

·        January 2013 - Facet joint injections C3-4 and C4-5

·        Mid 2013 - bilateral third occipital nerve and C3-4 medial branch blocks (negative) and bilateral C1-2 intra-articular injections (Dr Verrills);

·        September 2014 – Epworth two-week inpatient pain management - detox and ketamine infusion; and

·        December to April 2017 - Epworth outpatient pain management.

418     The plaintiff has been prescribed significant painkilling medication and is presently prescribed Lyrica.

419     These treatment modalities have resulted in limited improvement and as time has gone by, the plaintiff’s complaints and level of restriction have increased.   There is however little explanation on an organic basis for this situation.

420     In a very brief report of November 2017, Dr Roziel advised the plaintiff suffers from a Chronic Pain Syndrome related to work and has ongoing left shoulder pain and anxiety and depression.

421     Dr Blombery is the only real supporter of the CRPS diagnosis but he thought the plaintiff’s condition also has a psychiatric component.  Most recently, he considered she had ongoing sensitisation of pain in her pathways, which he explained was the essence of the excessive pain that patients with the syndrome experience.

422     The most recent orthopaedic referral was to Mr Price in August 2016.  He found cervical movements reasonably normal, though the plaintiff complained of increased left-side symptoms on left rotation, and thought the plaintiff’s pattern of symptoms was difficult to explain from a structural point of view.

423     The plaintiff last saw Mr D’Urso in November 2013.  He then thought there was no significant organic pathology other than some minor subacromial bursitis had been identified in investigations undertaken and recommended conservative treatment.  There was a subsequent referral in 2014 when the general practitioner described CRPS type symptoms, but there is no report of any further examination by Mr D’Urso.

424     In September 2016, Dr Khan’s impression was of persistent cranial neck pain with subjective symptoms in the left arm of uncertain cause.  In April 2017, he thought the plaintiff’s symptoms were likely consistent with CPRS of the left upper limb, and discussed with the plaintiff the introduction of an implant.

425     In 2015, Dr Horsley thought the plaintiff presented with persistent cranial and neck pains and subjective symptoms in the left arm of uncertain cause.  Most recently, in June 2018, she thought the plaintiff presented with persistent cranial and mechanical neck pain and ongoing widespread symptoms throughout the upper limb.  There was no evidence of CRPS Type 1.

426     The defendants’ medico-legal examiners found even less of an organic basis or explanation for the plaintiff’s current presentation.

427     As early as August 2013, whilst Mr Nye thought there was a possible soft tissue injury and an element of genuine migraine, clinical features indicated a non-organic condition, presumably psychological in origin.  He thought pain management was then appropriate.

428     In July 2014, Dr Roberts considered there was no evidence of a structural basis for the plaintiff’s headaches and the reason for ongoing pain was not clear.  He would have expected the soft tissue injuries to have settled.  There were non-organic features present.

429     There being no objective abnormal clinical findings, in 2018, Mr Dooley considered the plaintiff’s psychological condition dominated her presentation and that the organic physical injury had very little to do with her current situation.[121] He agreed with the diagnosis of Somatisation Disorder[122] affecting the plaintiff’s left arm.  He would agree that the development of a Chronic Pain Syndrome is involuntary.  In his view, the plaintiff required appropriate psychiatric treatment.

[121]T131

[122]T132

430     In 2018, Professor Davis thought the clinical diagnosis was of a Somatisation Disorder affecting the left arm, and the striking features were of a non-organic disorder.  On examination, findings supported a non-organic disorder with diffuse collapsing weakness in the left arm and anaesthesia of the whole arm, normal reflexes and without muscular wasting.  He thought there may be some component of a CRPS Type 1, which was impossible to disprove.  However, the overwhelming features were of a functional nature.  He thought this should be regarded primarily as a psychiatric disorder.

431     In Professor Davis’s view, the non-organic disorder was most likely mediated at the subconscious level but would defer to a skilled psychiatric comment in this regard. 

432     Dr Barton is alone in the view the plaintiff is deliberately feigning.  He did not believe there was any recognised physical problem the plaintiff had sustained as a result of the incident.  There was no clinical evidence of CRPS and he thought it clear there was a strong degree of illness behaviour and a degree of exaggeration contribution to her presentation.[123]  There were also a number of features on examination pointing to a degree of functional overlay.[124]

[123]The deliberate resting of the left arm by her side was part of that phenomenon

[124]See paragraph [321] of this Judgment

433     This is a case where an initial physical injury has been largely overtaken by a psychiatric condition and is therefore more appropriately dealt with under clause (c).[125]  For leave to be granted, the consequences of any present psychiatric impairment must be “severe”.

[125]T133

434     Counsel for the defendants submitted the DVD was not supportive of a severe psychiatric impairment and there had been no disentanglement successfully undertaken which would support a finding of “severe”.[126]

[126]T133

435     Further, counsel for the defendants submitted the plaintiff’s need for ongoing psychiatric treatment and medication could be explained by factors other than her incident injury.  Reliance was placed on Dr Entwisle’s view that numerous bereavements and unfortunate events had contributed to the plaintiff’s psychiatric condition and that her treaters had focussed on her complaints of pain rather than these other significant contributing factors.[127]

[127]T136

436     Responding to an anticipated argument that the plaintiff, a very young woman, had “gone off the rails” post incident, having finished a journalism degree but not now working, counsel for the defendants again relied on the DVD.  It was submitted the film showed no evidence other than the plaintiff living a relatively normal life.  Leaning over and pointing to cigarettes with her left hand and extending her left arm whilst having her nails done was irreconcilable with the restricted movement demonstrated in the witness box.[128]

[128]T139

437     In terms of disentanglement, it was some submitted examiners such as Dr Blombery and Dr Horsley had found an incapacity for work based on both physical and non-organic factors.[129]  Further, both Dr Barton and Mr Dooley thought the plaintiff had a capacity for employment although both suggested she needed to be psychologically treated.[130]

[129]T140

[130]T141

438     In terms of the plaintiff’s current work capacity, it was submitted the plaintiff would not apply for jobs if she did not believe she could do them.[131]  As she admitted, she would have attempted the Werribee job full time if it was offered.  On this basis, she could return to a similar job to Werribee in clerical work on a graduated basis.[132]

[131]T141

[132]T142

439     Counsel for the defendants submitted work as a journalist was a dream and not realistic.  In any event, there are now not many jobs available in that field.[133]

[133]T143

440     Further, it was submitted there was a likelihood of improvement in the plaintiff’s mental state after the litigation was finalised, as Dr Strauss pointed out.[134]

[134]T144

441     It was submitted what was shown on the DVD was irreconcilable with any genuine belief the plaintiff may have as to her present level of disability.[135]

[135]T144

442     Counsel for the plaintiff submitted that he was “compelled by his instructions” that the plaintiff she has a genuine belief she has pain coming from her neck.[136]

[136]T155

443     Dealing however with the application pursuant to sub-paragraph (c), it was submitted whilst Dr Entwisle described the plaintiff as having a vulnerability in her personality, up until the incident, she was in good psychological health, having passed her study and been able to work at the Hotel with no difficulty.  She had not seen her doctor for treatment since early October 2011.[137]

[137]T156

444 Reliance was placed on the view of Professor Davis,[138] and others, that the plaintiff suffers from a Somatoform Pain Disorder, a psychiatric condition which is severe.[139]

[138]Also Dr Strauss in September 2017 and Mr Dooley in 2018

[139]T159

445 The plaintiff continues to require significant anti-depressant medication, the level of which has recently been increased by Dr Datta,[140] and after two years of treatment, her psychiatrist wants to admit her to hospital.[141]

[140]Report of July 2018

[141]T158

446     Counsel for the plaintiff submitted Ms Noor was aware of the various bereavements and did not report they were of ongoing significance in the plaintiff’s presentation.[142]

[142]T158

447     It was submitted there was an underlying consistency in the initial diagnosis of an Adjustment Disorder by psychiatrists from early days, with Dr Jager in 2013[143] through to Dr Entwisle in 2018, who then thought the plaintiff’s prognosis was guarded.[144] Further, Dr Duke supporting this diagnosis and considered the plaintiff‘s capacity would significantly deteriorate if treatment ceased.[145]

[143]Also Dr Tagkalidis in December 2015

[144]T159

[145]T160

448     Counsel for the plaintiff described Dr Strauss’s report as very informative for the purposes of the sub-section (c) application.  He found the plaintiff to be a genuine individual, and considered emotional stressors manifested in pain as being unconsciously derived.  Whilst on the first examination he considered the plaintiff had a partial incapacity for employment on psychiatric grounds, more recently, he considered this incapacity to be total.[146]

[146]T160

449     In her detailed report in July 2018, Ms Noor stated that the plaintiff appeared to have no current work capacity to undertake employment.  This incapacity was due to a severe pain condition which, in turn, affected her mental state and daily functions. 

450     Dr Datta felt that the plaintiff’s depressive symptoms, panic attacks, social withdrawal, lack of motivation, and, most importantly, the chronic pain which is not relieved by medication, rendered her unable to both work and look for work.

Loss of earning capacity – a worker under 26

451 When a worker is under twenty-six years of age at the date of injury, pursuant to s134AB(38)(e)(i) of the Act, she must establish that at the date of the hearing she has a loss of earning capacity of forty per cent or more. Further, she must establish, pursuant to ss(e)(ii) of the Act, that she will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.

452     Thus, in the present circumstances, the Court is not required to undertake the comparison of “without injury” earnings with present earning capacity and be satisfied of a 40 per cent loss. 

453     The rational for this section is particularly obvious in this case where the plaintiff was only nineteen when injured, had yet to commence her Bachelor’s degree and was only working part time at the Hotel.

454     Taking into account all the evidence, I am satisfied, on psychiatric grounds alone, that the plaintiff has suffered the requisite loss of 40 per cent and her impairment is severe.

455     I accept the plaintiff has a genuine belief as to an ongoing restriction in the use of her left arm as described by Dr Blombery and Dr Strauss.  I do not accept that this condition is feigned, as only one practitioner, Dr Barton, opined.

456     I do not accept that there was anything shown on the DVD that was “irreconcilable” with this situation, as counsel for the defendants submitted.

457     I am satisfied the plaintiff continues to feel tired and lacks motivation.  She has difficulty concentrating.  She lacks self-esteem and confidence.  She is depressed and anxious and worried about her future as her treaters have confirmed.  She also feels guilty having to rely so much on her parents.

458     Despite having finished her journalism course, the plaintiff’s return to any work since the incident has been minimal.  She could not cope with ‘meet and greet’ job at the Hotel for a couple of days in late 2013. 

459     The administrative job at Werribee Racecourse was for a limited period and the plaintiff could work at her own pace as her friend had given her the job.  The plaintiff might be able to try this role now as she conceded but, in my view, that does not translate into a realistic and reliable work capacity.

460     I accept that the plaintiff’s journalism career has been significantly compromised by her psychiatric condition.  Having finished the three-year degree, she could not cope even with the two-week internship at a much sought after location at the Herald Sun as Dr Roziel confirmed.

461     The consensus of medical opinion is that the plaintiff requires ongoing psychiatric treatment, with inpatient having been suggested by her treater.  Further, she continues to take a high level of psychiatric medication as Dr  Datta described.

462     Whilst obviously not housebound, having seen the plaintiff in the witness box and considered the medical evidence, I am satisfied she would have difficulty attending work in an administrative or other clerical type role on a reliable and consistent basis.  I accept that a career in journalism is now lost to her. 

463     Whilst some practitioners are of the view the plaintiff has limited work capacity due to a combination of organic and psychiatric factors, I am satisfied that on psychiatric grounds alone, the views of treaters, Ms Noor and Dr Datta, and medico-legal examiner, Dr Strauss, she has established the requisite loss.

464     Further, as Dr Horsley recently opined, the plaintiff’s current concentration, attention span, motivation, fatigue, and chronic pain, all militate against even considering applying for work, let alone attending work reliably.

465     The plaintiff is still a relatively young person.[147] As her mental state has persisted for over six years without any real improvement despite significant treatment, I am satisfied that her psychiatric impairment is permanent.

[147]Stijepic v One Force Group Australia Pty Ltd& Anor [2009] VSCA 181 paragraph [43]

466 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, for example both for pain and suffering and loss of earning capacity.[148]

[148]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170

467     Accordingly, in addition to granting leave to bring proceedings for damages for loss of earning capacity, I also grant leave to bring proceedings for damages for pain and suffering.

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Surveillance Log
8 February 2018
1.36pm	Plaintiff getting in car
3.05pm	Plaintiff walking into shopping centre (MatchWorks)
3.22pm	Plaintiff returns to vehicle.  Driving with spinner wheel
27 July 2018
1.36pm	Walking through shopping centre
1.39pm	Purchasing cigarettes using left arm to pay
1.42pm	Returns to car.  Uses both hands to drive off
1.52pm	Walking to another shopping centre
2.12pm	Car parked at home.  Carries box with cake in it uses both hands, left to support the box
3 August 2018
Texting using both hands.  Closes door with left
Uses mailbox
10 August 2018
10.41pm	Buys cigarettes extends left arm to point to them on the shelf.
10.51-10.57pm	At service station.  Filling car up.  Keys and wallet in left hand.  Leaning on car with left arm.
15 August 2018
11.02am	P in front seat having a cigarette.
11.04am	Walking with friend into shopping centre.
11.07am	P and friend get coffee
Texting with left hand Leaning on left arm Touches peak of cap
12.45pm	At Watergardens Shopping Centre. Having a manicure.
12.50pm	Left arm outstretched, elbow resting on towel
1.56pm	Approximately 2 minutes spent with elbow tucked into side of body and elbow extended
16 August 2018
11.51am	Attending funeral
17 August 2018
1.07pm	Walking down street, flicks hair with left hand.