Geary v Specified Electrical Process Heating
[2013] VCC 986
•15 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02344
| DEBORAH GEARY | Plaintiff |
| v | |
| SPECIFIED ELECTRICAL PROCESS HEATING | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2013 | |
DATE OF JUDGMENT: | 15 August 2013 | |
CASE MAY BE CITED AS: | Geary v Specified Electrical Process Heating & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 986 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of definition of “serious injury” – left shoulder injury – non-dominant arm – “pain and suffering” damages only
Legislation Cited: Accident Compensation Act 1985 (as amended)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a left shoulder injury suffered by her on or about 24 September 2007 during the course of her employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Garnham | Slater & Gordon |
| For the Defendants | Mr J Batten | Thomsons Lawyers |
HIS HONOUR:
1 By way of Originating Motion, Mrs Deborah Lynne Geary (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for an injury to her left shoulder suffered during the course of her employment with Specified Electrical Process Heating (“the first defendant”) on 24 September 2007 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. The parties tendered various documents.[1]
[1]See Annexure A
Relevant legal principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left shoulder.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” was suffered arising out of or in the course of, or due to the nature of her employment with the first defendant on or after 20 October 1999;[3]
(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked and as being at least very considerable”.[5]
The test for “serious” is sometimes referred to as “the narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors & Podolak (2005) 14 VR 622 at [11]
[4]See Barwon Spinners (op cit) at [33]
[5]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;
(d)notes that it has been asserted that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[8]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 and 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The issues
9 I was informed by counsel for the first defendant that his client admitted that an “incident” occurred on 24 September 2007 and a claim was made by the plaintiff for a left shoulder injury which was accepted and compensation paid. Counsel for the first defendant described the essential issue between the parties to be whether any consequences continued to be suffered by the plaintiff from any left shoulder impairment satisfied the narrative test – that is to say, what is commonly referred to as a “range case”.
10 Counsel for the first defendant did highlight that the radiology was not helpful in detecting the nature of any ongoing “injury” and furthermore, according to the first defendant, the matter is made complicated by the plaintiff suffering a low-back injury on 30 October 2006 during the course of her employment with the first defendant which has resulted in periods of incapacity sometimes certified both for the back and the left shoulder.
The evidence of the Plaintiff
11 The plaintiff gave evidence that the contents of the affidavits sworn by her on 22 December 2011[9] and on 28 June 2013[10] were “true and correct”.[11]
[9]See exhibit 3 at pages 32 – 37 PCB
[10]See exhibit 3 at pages 38 – 41 PCB
[11]Transcript (“T”) 15 L30-31
12 When queried as to whether she continues to take six to eight Panadol a day and one to three Panadeine Forte a week as set out in her second affidavit, the plaintiff stated that she is currently taking six Panadol Osteo a day and two to three Panadol Forte a week. The change in medication came about from her own research, which suggested that the medication, Panadol Osteo, may help with inflammation in her left shoulder.
13 When queried by the Court, the plaintiff confirmed that she had a back injury which “these days” is “really good” if she keeps walking. In particular, she gave evidence that she did not take any of the tablets for her back condition.
14 The plaintiff also gave evidence that she works in quality assurance, which involves inspecting products that have been manufactured on the premises to ensure that they comply with the documentation. Such work involves checking the components for conformity and putting a sticker on them to say they so conform. In particular, the plaintiff described there was a “certain amount of lifting” but most of the components ranged from anything from 100 grams to 5 kilograms. If the components are bigger than 5 kilograms she usually seeks assistance from others.
15 In particular, when queried by the Court, the following evidence was given:
Q:“I just want to know, with your present duties are you required to extend your left arm?---
A: In some cases you can - well, only extend a certain distance.
Q: Yes?---
A:You’re in an area - I’m very lucky in the despatch area that I work with. I’m with two people. If they see that I haven’t got the capabilities to do that reach they will come straight over and offer assistance.
Q:That’s what I’m really asking you. Have you got the capacity to reach out?---
A:No.
Q: So you can’t put your arm out like that?---
A: No.
Q: If you did that what happens?---
A:What would happen is - when I say you can’t put it out, I can put it out like that, but I can’t hold it for any length of time and I can’t put any weight - it’s not weight bearing.
Q:I see?---
A:So I can do most weight bearing if I bring it in and hold it to my stomach. I wear out many a jumper by doing that.
Q:Just while I’m asking you this, as far as you’re concerned, as at today’s date or generally around this period of time, what restrictions do you have with your left arm?---
A:Many restrictions. I’ve had to learn a whole new regime of washing hair, getting dressed, not being able to pick up my children, social life. Used to like to rock and roll of yesteryear.
Q:Used to like to what?---
A:Yes, I actually met my husband many - I’m diverting off the course of justice here - at Springvale Rock many, many years ago, actually 40 years ago, and my passion was to dance. I can waltz and maybe do a little bit, but no, nothing - ‑ ‑
Q: No more rock and roll?---
A:Yes, but even walking at a hard pace is - and rock and roll, is the rocking motion gives aches into my shoulder which then creates heat.
Q:Just finally, when you’re talking about restriction of movement, can you bring the left arm above shoulder height?---
A:No, I can’t.”[12]
[12]T18, L13 – T19, L16
16 By way of her first affidavit, the plaintiff gives the following pertinent evidence:
· She is fifty-five years of age (born in 1957) and after completing Year 11 at school, she worked for a short while fruit picking and in sales at Walton’s Stores.
· After leaving Walton’s Stores, she commenced working at Helios Electroheat, which made industrial heaters in Moorabbin. She commenced as a process worker and continued working there for about sixteen years and became the production manager.
· In 1995 and 1996, she worked at HotCo in Parkdale, which made industrial heaters similar to those when she was working at Helios.
· Over the years from 1996 to 2002, she worked as a contract cleaner at various locations and for various employers.
· In 2002, she returned to work at Helios – which is now known as the first defendant – and initially worked as a supervisor and then from 2006 as the production manager.
· Over the years she has had the following treatment for a variety of injuries:
– when she was eight years old she had an operation for a hole in her neck which she understood to be a congenital defect.
– in 1986, she injured her back as a result of lifting a vibrator machine weighing approximately 8 to 10 kilograms and placing it on the floor. She describes suffering two prolapsed discs and was in traction for about six weeks before a gradual return to work within three months.
– in 1993, she was involved in a motor vehicle accident and suffered bruising and then suffered significant anxiety, for which she was treated at the Albert Road Clinic for approximately three weeks. Since then she has been prone to suffer from anxiety. At the time of the motor vehicle accident she was off work for approximately twelve months.
– she injured her low back at work with the first defendant on 30 October 2006 when she was helping a tradesman to load heating elements onto his van. Some of these elements fell onto her back, causing her to make a twisting motion, after which she felt low-back pain. She was off work for approximately two months after this incident and consulted a neurosurgeon, Mr Drnda, who prescribed two steroid injections. She made a graduated return to work after the back injury and was able to return to full-time work.
· She described the circumstances of the left shoulder injury in the following terms:
“I injured my left shoulder at work on 24th September 2007. I had my hands over a lathe as I was unlocking it with a chuck bolt. However as I was doing this another worker reached around to the lathe to get a heat gun and knocked a switch and in so doing turned the lathe on. This caused my arms and shoulders to be thrown across the lathe and after this I had significant left shoulder pain.”[13]
[13]See exhibit 3 at paragraph 9 at page 34 PCB
· She attended the Sandringham Hospital after the occurrence of the injury and was advised to rest for a week with her left arm in a sling and to take painkillers. After about a week she returned to work on modified duties but due to continuing difficulties, she was referred to the rheumatologist, Dr Mark Patrick, who organised a CT scan and later, a hydrodilatation injection.
· Because Dr Patrick was unable to assist her further, she was referred to the shoulder and elbow orthopaedic surgeon, Mr Shane Barwood, who organised a further hydrodilatation in December 2007.
· Both hydrodilatation injections gave her little relief, either in the pain she suffered or her restriction of movement in the left shoulder.
· She was off work from September 2007 to March 2008, returning on modified duties, and in 2010, she returned to work on a full-time basis on modified duties.
· She notes that currently she does have some stiffness in her low back and sometimes gets pain going down into her right buttock and right leg. Further, she notes a decreased range of movement in her lumbar back, and being seated or standing for too long does aggravate her back condition.[14]
[14]These assertions are being made as at 22 December 2011
· In respect to her left shoulder injury, she describes having constant dull pain which increases with too much use of the left arm. The pain extends into the neck with left-sided headaches. She also gets pain down her left arm, as well as a pins and needles sensation there, with her left hand sometimes feeling numb.
· She has a decreased range of movement of her left shoulder and cannot lift heavy weights now with her left arm. The left shoulder and neck pain affects her sleep and she feels left shoulder pain in simple movements such as reaching up to wash her hair or trying to hang out washing.
· She is right arm dominant.
· Her treating doctor is Gayle Troedson at the Southern Cross Medical Centre in Hampton Park. She takes Panadeine Forte for pain and also a lot of Panadol as a “top up”. Some of this pain-relief medication relates to her back condition.[15] She also takes Xanax for anxiety. This had been prescribed long before her back and left shoulder injuries.
[15]This is asserted as at 22 December 2011
· She does have physiotherapy treatment with Mr Murray Hutchison, mainly for the relief of left shoulder and neck pain, and most days she uses a TENS machine at home on her left shoulder and a heat pack. She also carries out exercises at home to try and strengthen her left shoulder.
· Because of her left shoulder injury, she is limited in the extent she can carry out household duties and her husband now has to provide a lot more assistance, particularly with the heavier jobs such as vacuuming and mopping the floor, as these jobs aggravate her left shoulder pain. Furthermore, the injury has also affected sexual relations with her husband.
· She has three children and three young grandchildren and it is a “great source of disappointment” that her left shoulder injury has affected her ability to pick up and play with her grandchildren.
· Her family has a caravan near Bairnsdale and prior to the injury the family would frequently go down there and engage in general boating and skiing activities on a “ski biscuit”. She now finds the rocking of the boat difficult and could not even contemplate going on the “ski biscuit” any more as this entails using her arms to hold on.
· She also used to enjoy a social game of tennis and can no longer participate in this and is generally less active now because of the left shoulder injury.
· Her injury has resulted in her work options being significantly affected.
17 By way of her second affidavit, the plaintiff gives the following pertinent evidence:
· She continues to suffer from pain and restrictions in her left shoulder to the extent described in her earlier affidavit. In particular, she notes that the pain gets quite severe if she uses her left arm too much, and she still gets pain going into the left side of her neck as well as suffering from headaches. She still experiences pain and a pins and needles sensation in her left arm, with her left hand still feeling numb, and when this occurs, she feels as though she is about to have “a heart attack”.
· Her left shoulder still has a decreased range of movement and she cannot lift any heavy weights with that arm.
· The left shoulder injury affects her sleeping and when she rolls onto her left side she wakes with shoulder pain. She also has difficulty performing simple tasks like washing her hair or hanging out washing.
· She does carry out some household chores but is generally slower in doing this, and cannot as freely carry out jobs, such as vacuuming and mopping the floor, as movement in this activity aggravates the left shoulder pain. She also is limited in what she can do in the garden.
· Her husband recently had a heart attack and this has limited the extent to which he can help with household chores, and she finds this has placed an increased burden on her left shoulder.
· It remains a “big source of disappointment” that she cannot be free to lift and play with her grandchildren. She does continue to suffer from some low-back pain but this is not nearly as bad as the left shoulder pain.
· She continues to take medication prescribed by her general practitioner and continues to use a TENS machine on her left shoulder most days and she also applies a heat pack to that shoulder.
· She continues to perform modified duties, including weight restrictions relating to her left shoulder, as well as restrictions relating to her low-back injury. She is concerned that if she should lose her job with the first defendant she would not be very “employable” because of the left shoulder injury.
· The caravan, which is situated at Bairnsdale, has been on the “market” since last Christmas because her husband and she do not use it often now. Her enjoyment in going out in the speedboat at Bairnsdale has been restricted because of the left shoulder injury because driving the boat and movement on the water aggravates the left shoulder pain.
· Generally, the left shoulder injury restricts her ability to carry out recreational or leisure activities with her husband, which she believes is more pronounced as she gets older and they have more leisure time to perform such activities.
The cross-examination of the Plaintiff
18 Under cross-examination, the plaintiff was requested to give some detail as to where she currently works and the nature of such duties. She stated:
“I work in despatch but for small periods of time I’m more out on the factory floor now doing the conformity and compliance to the products that we make and then take them out to despatch. On periods I am looking after logistics to move those components off the premises by bringing up trucks, doing cash sales, getting credit card details and so forth, but out of a 100 per cent day, 80 per cent of that, or 85 per cent of that, would be on the factory floor checking compliance in conformity to the product.”[16]
[16]T19, L21-30
19 The plaintiff also gave evidence that on some occasions she would be expected to do quality assurance and place a sticker on a thousand components a day and accepted that her role had grown into an important one.
20 When queried whether she loved her job, the plaintiff answered “No”, and the following evidence was given:
Q:“What’s the problem with your work, not loving your work, Mrs Geary?---
A:Prior to the accident I was in a production manager position and I was also in - ‑ ‑.”
HIS HONOUR:
Q:“You were in a what? Sorry, I didn’t hear?
A:---Sorry, prior to the injury I was a production manager.
Q:Yes?---
A:The company was bought out. They already had a production manager, but I was heavily involved into a lot of the design of the product and changes and the supervision of people and the training of people and doing the training exercises on people. You would need to be able to use the machinery to train them so that would be silver soldering, TIG welding, bronze welding, winding, using lathes to turn back components, cut components and so forth, where I no longer have the ability to do that, so therefore I haven’t got the ability to train. There’s a difference between talking to somebody to train and teaching somebody to train. You need to be able to do the both. You need to be able to walk the walk and talk the talk.”[17]
[17]T20, L15 – T21, L2
21 The plaintiff also accepted that her previous employer, Helios, sold out to the first defendant in 2006, causing a move from Moorabbin to Cheltenham.
22 The plaintiff also accepted that on 30 October 2006, she suffered a significant low-back injury, causing her to have considerable time off work and being referred to the neurosurgeon, Mr Xenos, and having undergone MRI scans and epidurals to her low back.
23 The plaintiff accepted that she had time off and much treatment in relation to her low-back problem. Furthermore, she had suffered further injury involving her low back when missing a step at home.
24 The plaintiff was queried as to whether Mr Barwood, the orthopaedic surgeon who treated her, explained that he did not feel that she required any surgical intervention for the injury. The plaintiff answered:
“Incorrect. He told me with frozen shoulders, they can self-repair within two years. If they don’t self-repair within two years, usually you’ve got them for life were his words.”[18]
[18]T27, L31 – T28, L3
25 Furthermore, the plaintiff gave evidence that she performed home exercises in accordance with Mr Barwood’s advice, and when queried as to what she did, the plaintiff gave the following evidence:
“I did wall exercises, floor exercises. I did hydrotherapy, all at my expense may I add. I also did walking which upset the shoulder more, the rocking motion. Hence I wear things that have pockets in them so I can put the arm away so the rocking motion doesn’t upset the shoulder. … .”[19]
[19]T28, L10-15
26 Under cross-examination, the plaintiff gave evidence that she believes that she has had no time off work in respect of her left shoulder since June 2010. Furthermore, she gave evidence that she attends a physiotherapist, Mr Hutchison, about once a week for her shoulder. Although she has in the past attended him for her back, the last time she did attend him for treatment in relation to her back was about six or seven months ago.
27 The plaintiff also accepted that she has not seen the orthopaedic surgeon, Mr Barwood, since 2008, nor has she seen the rheumatologist, Dr Mark Patrick, since 2007 or early 2008 in relation to the injury.
28 She accepted she had taken Naprosyn for over thirteen years which has been prescribed by her general practitioner, Dr Troedson, in relation to her back pain and she continues to take such medication.
29 The plaintiff confirmed that she has three children who do not live at home and also has three grandchildren. Furthermore, she confirmed that her husband had a heart attack about five months ago.
30 The plaintiff described how she travelled to Bairnsdale at Easter to put the caravan up for sale. In particular, she described how she and her husband had decided to sell the caravan in 2012 because her husband was of the opinion that she was such a “cranky pants”, it was not worth the effort to go to the caravan because she could not sleep in the same bed and that she would not go in the boat. The last time that the children or grandchildren went skiing behind the boat would be about twelve months ago. She described also how her husband liked to fish, and previous to the injury, she accompanied him on many occasions. She accepted that in the past if her back had caused her any particular difficulties she would not get into the boat or accompany him fishing.
31 In particular, the plaintiff described that prior to the injury, she had not skied for a long time but she had been in the “ski biscuit” and had “an avid love of being in the boat”.[20] In particular, the following evidence was given:
[20]T34, L8-9
Q:“I just want to understand, tell me what you say about this. So I can put skiing out of the equation, but what you seem to be putting to me is that as a result of the shoulder injury that has affected your ability to enjoy the boating activity?---
A:Very much so, Your Honour.
Q:Just tell me how and why that comes about?---
A:Well, it’s very hard to describe, Your Honour. Walking, the rocking motion of walking, I’ve stated earlier that I’ve put my hand in a pocket so it doesn’t do the rocking.
Q:Yes?---
A:I figure in my own brain I’ve been in a boat most of my married life, that the rocking on a boat would be the same aspect of the walking, so take that out of the equation. To get into the boat, because it’s a fish ski boat, Your Honour, it’s not low, it’s high, so when you bring the boat into shore you need to be able to get one leg over, hang onto the side and manoeuvre yourself in. You’re sitting on quite a low seat, when you go over a wake in a boat the boat would hit a thump which then would create a jarring reaction, so I stopped going in the boat. So I would watch from shore my husband towing other people around skiing and watching that, so I had no ‑ ‑ ‑
Q:So I understand it, that absent the shoulder injury do you say, or do you say this, that you would have been in the boat with your husband towing whoever is skiing behind?---
A:As an observer, yes, Your Honour.
Q:As an observer?---
A:Yes.
Q:Can you give me some idea the frequency, if you can, as to how much you would have done that prior to you stopping going in the boat?---
A:Your Honour, the water ski season, and I revamp the water ski season because I’m not a lover of the cold, so I never really much went in the boat in winter. The water ski seasons from November to Easter is the time, so every holiday and most weekends you would go up and because you’d been up in that caravan park a lot of years, Your Honour, you make a lot of friends that have children so their children would be in the boat so you’d be video taping them. So you would go ‑ ‑ ‑
Q:On a weekend, what, you would stay in the van, would you?---
A:Yes, it’s a permanent camp site.
Q:How far away from where you were living?---
A:Three hours.”[21]
[21]T34, L10 – T35, L19
32 The plaintiff described that since the injury, her husband has done most of the cooking and since his heart attack and being home, he does much of the washing of the dishes and the making of the bedroom. She accepted that she can perform vacuuming and mopping but it “creates more problems”. Furthermore, she avoids pegging out washing on her clothesline.
33 Since her husband’s heart attack, she tends to do more work than she did prior to the heart attack to “take the stress away from him”. She accepted she was capable of pulling out a couple of the weeds from the garden, although her husband does the lawn mowing. Furthermore, there are things left undone and in particular, she described how she cannot use a Karcher, which she described as a high-pressure water cleaning machine, because of the vibration upsetting her left shoulder. In particular, the following evidence was given:
Q:“Is there any specific regular activity that you did in the garden that you now don't do?---
A:I don’t transplant plants. I have a love of trying to grow things in cuttings. I no longer do that because my husband doesn’t have the same passion as me and so I find digging of the ground and bringing the pot out to re‑pot something is strenuous and upsetting to my left arm.
Q:You wouldn’t be able to dig with the state of your lower back with the sciatica that you’ve had and the limping, and the numbness down to your toes, you wouldn’t be able to do that activity because of your back?---
A:I probably could today. Did you see me limp today?
Q:When did you last plant something in the garden, Mrs Geary?---
A:It would be before my shoulder accident.”[22]
[22]T40, L30 – T41, L12
34 The plaintiff described that there is never a day when she is pain free. She takes medication every day. When queried whether she becomes pain free with the medication, she replied in the negative, and when queried as to why she continues to take the medication, she stated:
“I get some form of relief, your Honour. It’s like a dullness. It’s not a complete pain free but a dullness. So the ache and the burning of the shoulder is taken away slightly, like the edge is taken off it.”[23]
[23]T41, L27-31
35 The plaintiff also gave evidence that her physiotherapist, Mr Hutchison, recommended the use of the TENS machine, which she has been using for the last two-and-a-half to three years. She describes using such machine every day and she feels that she gets a better night’s sleep if she uses such machine. Again, Mr Hutchison recommended the application of a heat pack, which again she uses regularly.
36 The plaintiff drives a Nissan Pulsar 2002 which is automatic, and such driving involves her travelling to and from work, to various medical examinations, to the shops and sometimes driving her husband around. She gave evidence that long distances upset her shoulder “big time” and she tends to drive more with mirrors now. She described that the journey from her house in Hampton Park to Cheltenham where she works is 29.5 kilometres door to door, and if the journey is delayed by car accidents or build up of traffic, it causes increased difficulties in her shoulder.
The medical evidence of the Plaintiff
37 I refer initially to the various radiological studies and injections undertaken by the plaintiff:
(a) A CT scan of the left shoulder and cervical spine undertaken on 28 September 2007.[24] The radiologist reports a normal CT scan, and in relation to the left shoulder, states:
[24]See exhibit 4 at pages 42-44 PCB
“No acute bony abnormality of the left shoulder. If there is clinical concern regarding a tendinous injury, further evaluation with an ultrasound or MRI may be helpful.”
(b) An ultrasound of the left shoulder undertaken on 25 October 2007.[25] The radiologist reported on such scan:
[25]See exhibit 4 at pages 45-46 PCB
“Long head of biceps and subscapularis tendons are clearly visualised and appear normal. Supraspinatus tendon is well demonstrated and is also unremarkable in appearance and the infraspinatus and teres tendons appear intact. There is some mild thickening of the subacromial bursa in keeping with presumed mild inflammatory bursitis. No significant fluid accumulation is seen within the shoulder joint space. Acromioclavicular joint is normal in appearance.”
(c) Left shoulder hydrodilatation undertaken by Dr Mark Patrick on 3 December 2007.[26] Dr Patrick notes that a total of 36cc of fluid was injected into the joint and there was good separation between the humeral head and glenoid fossa obtained with the saline infusion;
[26]See exhibit 4 at page 47 PCB
(d) Left shoulder joint injection undertaken by Dr C Holden on 7 February 2008.[27] Dr Holden reports that the shoulder was injected and the procedure was well tolerated;
[27]See exhibit 4 at page 47a PCB
(e) MRI scan of left shoulder undertaken on 18 March 2008 on referral by Mr S Barwood.[28] The radiologist concluded:
“Largely unremarkable study, low-grade supraspinatus tendonosis, no significant bursitis, please note although there is no definite lateral nor anterior downsloping, very minimal anterior downsloping is identified. No other findings.”
(sic)
[28]See exhibit 4 at page 48 PCB
38 The plaintiff relies on medical reports from her treating general practitioner, Dr Gayle Troedson, dated 16 October 2008,[29] 8 October 2009,[30] 29 July 2012[31] and 23 June 2013.[32]
[29]See exhibit 5 at pages 49-51 PCB
[30]See exhibit 5 at page 52 PCB
[31]See exhibit 5 at page 53 PCB
[32]See exhibit 5 at page 54 PCB
39 Dr Troedson reports that the plaintiff had a back injury on 30 October 2006, after which she developed low-back pain and was off work, before such pain slowly resolved with physiotherapy and home exercises. She was referred to a neurosurgeon, Mr Drnda, in December 2006 and January 2007, and he arranged an MRI scan on 16 January 2007, after which surgery was not recommended. Dr Troedson also notes that the plaintiff aggravated such back condition in August 2007 after “tripping on a pipe” at work but continued working.
40 Dr Troedson also recalls that the plaintiff developed pain and restriction of movement in her left shoulder after an incident at work on 24 September 2007. The plaintiff underwent x‑ray of the left shoulder and an ultrasound, which revealed bursitis.
41 Dr Troedson confirms that the plaintiff was referred to the rheumatologist, Dr Patrick, who arranged a CT scan of the neck and shoulder, which showed minor degenerative change in the neck. He diagnosed left shoulder capsulitis and arranged a course of steroids and left shoulder hydrodilatation, neither of which gave any help.
42 Dr Troedson referred the plaintiff to the orthopaedic surgeon, Mr S Barwood, who also diagnosed severe adhesive capsulitis and who arranged an MRI scan of the left shoulder and also performed a second hydrodilatation. Again, such procedure did not give any assistance to the plaintiff.
43 Dr Troedson notes that the plaintiff returned to work in April 2008, initially three days per week, 4 hours per day, with no lifting of the left shoulder above shoulder height or weights greater than 5 kilograms. She ceased work in May 2008 because of low-back problems and was ultimately examined by the neurosurgeon, Mr Xenos, on 16 October 2008.
44 Dr Troedson diagnosed the plaintiff to be suffering adhesive capsulitis in her left shoulder and some lumbar disc degeneration with disc prolapse. She considered the prognosis to be uncertain and the plaintiff will continue to have pain and decreased range of movement of her left shoulder and the lumbar spine. She also noted that there was no surgery planned for the left shoulder. Dr Troedson later confirmed that the MRI scan of the lumbar spine of the plaintiff in 2008 showed an L4-5 right-sided disc bulge touching her L4 nerve, plus degenerative changes at multiple lumbar levels. Furthermore, her MRI scan of her left shoulder in 2008 revealed bursitis and osteoarthritis of her left acromioclavicular joint.
45 In October 2009, Dr Troedson noted that the plaintiff was increasing her hours and resumed full-time employment in 2009 with some restrictions pertaining to both her left shoulder and back.
46 In particular, as at June 2013, Dr Troedson notes that the plaintiff has “significantly decreased range of movement of her left shoulder with muscle wasting”. She also notes that the plaintiff has decreased lumbar movement but manages to work full time with restrictions of no lifting the left arm above shoulder height and no prolonged sitting or standing. Furthermore, the plaintiff continues to undergo weekly physiotherapy and has regular use of medication. In particular, Dr Troedson notes that the plaintiff’s pain in her left shoulder is usually worse at night and does affect her ability to sleep.
47 The plaintiff also relies on a report from the treating rheumatologist, Dr M Patrick, dated 26 September 2008.[33] Dr Patrick initially consulted with the plaintiff on 19 November 2007 and after the initial examination and review of the then radiological studies, formed the opinion the plaintiff had developed an adhesive left shoulder capsulitis consistent with the incident of injury on 24 September 2007.
[33]See exhibit 5 at pages 55-60 PCB
48 He treated her with a short course of oral steroids and later, with a hydrodilatation. On review on 14 January 2008, he notes there was little response to the left shoulder treatment. In his report he notes that the prognosis for such condition is of “… improvement but often after a period of some months with anti-inflammatory treatment and distension of the capsule all involved”.
49 The plaintiff also relies on reports from the treating orthopaedic surgeon, Mr Shane Barwood, dated 31 January 2008[34] and 7 October 2008.[35]
[34]See exhibit 5 at page 61 PCB
[35]See exhibit 5 at pages 62-63 PCB
50 Mr Barwood initially consulted with the plaintiff on 31 January 2008 and after obtaining the history and making an examination, was of the opinion that she had developed a post-traumatic adhesive capsulitis of the left shoulder. He recommended that she undergo a second hydrodilatation which occurred on 7 February 2008 which gave no significant benefit.
51 Mr Barwood then arranged for her to undergo an MRI scan of the left shoulder which revealed that her rotator cuff was intact and some evidence of what he considered to be “quite mild subacromial bursitis”. He also noted that the acromioclavicular joint had some arthritis present but considered that this condition would not explain her shoulder symptoms and stiffness. Furthermore, he found her labrum to be intact and no evidence of any underlying sinister pathology. Mr Barwood confirmed the clinical diagnosis of post-traumatic capsulitis was essentially confirmed and the plaintiff was advised that the natural history of such condition was of a “slow but gradual resolution”. She was advised to undergo conservative treatment and continue with her physiotherapy. Mr Barwood last conferred with the plaintiff on 21 March 2008. In particular, he states:
“I do believe that her condition of adhesive capsulitis can be related to her injury at work. Whilst the condition is traditionally idiopathic, I have seen many cases where it can be related to a small and sometimes even relatively trivial traumatic injury to the shoulder.
If Mrs. Geary is unable to improve with the passage of time and an exercise program, then further surgery may be considered and this involves an arthroscopic capsular release. At this stage I anticipate this will not be required, however of course the outcome of these conditions is somewhat difficult to predict.”[36]
[36]See report dated 7 October 2008 exhibit 5 at page 63 PCB
52 The plaintiff also relies on reports from her treating physiotherapist, Mr M Hutchison, dated 29 March 2010[37] and 26 July 2013.[38] Mr Hutchison initially consulted with the plaintiff on 2 November 2006 in relation to a back injury she suffered at work in October 2006. He describes treating her and her return to work, with flare ups occurring every now and again.
[37]See exhibit 5 at pages 64-69 PCB
[38]See exhibit 5 at pages 69a-69e PCB
53 Following the injury, Mr Hutchison commenced to treat the plaintiff in relation to her left shoulder. Mr Hutchison is of the opinion that the plaintiff suffers from a left adhesive capsulitis following the injury. Furthermore, in his report dated 26 July 2013, he states:
“Given the nature of her left shoulder condition and the time frame since the injury I conclude that she will be left with permanent left shoulder restriction and continue to experience moderate loss of mobility and pain associated with activities including reaching behind her back or across her body or lifting above shoulder height. I expect in the foreseeable future that lifting involving the left upper limb will be restricted to approximately 2 or 3 kilograms.
I consider that Mrs Geary [is] currently fit to work full time hours with work restriction[s] including:
·No repetitive bending, lifting and twisting
·No awkward or sustained postures
·No prolonged sitting greater than approximately one hour
·No excessive reaching with the shoulder, only as comfort allows
·Only light pushing and pulling as comfort allows
·No lifting greater than five kilograms.”[39]
(sic)
[39]See exhibit 5 at page 69d PCB
54 It is to be noted these restrictions pertain not only to her left shoulder injury, but also to the back injury for which she has received treatment from Mr Hutchison. Seemingly, his treatment is now concerned with the left shoulder only, and he notes that the left shoulder injury does interfere with the ability of the plaintiff to sleep.
Medico-legal reports
55 The plaintiff relies on a medico-legal report of the orthopaedic surgeon, Mr Michael Fogarty, who examined the plaintiff on 19 June 2013.[40]
[40]See report dated 26 June 2013 exhibit 5 at page 70-74 PCB
56 Mr Fogarty obtained a history from the plaintiff in relation to the left shoulder injury and also noted that, on examination, there was “wasting of the deltoid and supraspinatus muscles” and significant restriction of the range of motion in the left shoulder.
57 After obtaining such history, making an examination and viewing the various radiological material, Mr Fogarty stated:
“(a)The nature of the physical injuries suffered by … Deborah Geary, to the left shoulder as a result of the workplace accident on 24th September 2007 was soft tissue injury to the shoulder with the subsequent development of adhesive capsulitis leading to a frozen left shoulder. There may have been aggravation of her pre-existing condition of degenerative arthritis in the acromio-clavicular joint at the left shoulder.
(b)I believe that your client does require some ongoing non-operative treatment and medication for the physical condition of her left shoulder.
(c)I believe that the restriction, disability and incapacity which results from your client’s physical left shoulder injury will remain for the foreseeable future.
… .”[41]
[41]See exhibit 5 at pages 73-74 PCB
Medico-legal reports relied on by the First Defendant
58 The first defendant relies on the following medical reports:
(a)Reports of the occupational physician, Dr James Rowe, who examined the plaintiff on 23 June 2008[42] and on 26 November 2009;[43]
(b)Report of the orthopaedic surgeon, Mr Clive Jones, who examined the plaintiff on 31 July 2008;[44]
(c)Medical report of the occupational physician, Dr Chris Baker, who examined the plaintiff on 9 July 2010;[45]
(d)Report of occupational physician, Dr David Barton, who examined the plaintiff on 10 November 2010;[46] and
(f)Medical reports of the treating neurosurgeon, Mr Chris Xenos, dated 16 December 2008, 7 April 2009 and 13 October 2009.[47]
[42]See report of same date exhibit A at pages 1-4 Defendant’s Court Book (“DCB”)
[43]See report of same date exhibit A at pages 6-10 DCB
[44]See report dated 24 August 2008 exhibit A at pages 12-14 DCB
[45]See report dated 12 July 2010 exhibit A at pages 20-25 DCB
[46]See report dated 12 November 2010 exhibit A at pages 26-30 DCB
[47]See exhibit A at pages 36-39 DCB
59 When first seen by Dr Rowe, the plaintiff was not working. An examination at that time revealed that there was wasting of the shoulder, together with severe limitation of left shoulder movements. Curiously, Dr Rowe obtained a history that in October 2006, the plaintiff suffered injury to her neck when other histories would suggest clearly it was her low back. At the time of that examination, Dr Rowe described the plaintiff suffering a “frozen shoulder”. When re-examined, Dr Rowe found a better range of movement and there was no obvious wasting. He considered that in relation to the left shoulder, there was a “resolving capsulitis”. Dr Rowe, on both occasions, also examined the plaintiff in relation to her low-back condition.
60 In particular, I note in his last report, Dr Rowe expressed the opinion that the plaintiff is “not exaggerating her condition” and that there were no non work-related factors contributing to her condition.
61 When examined by Mr Jones, the plaintiff gave a history in relation to both her low-back injury in 2006 and the left shoulder injury in 2007. On examination, Mr Jones found the plaintiff to have “significant shoulder stiffness”. He was of the opinion that the plaintiff was suffering from a “recovering frozen shoulder on the left” and some symptomatic disc degeneration which was also improving.
62 When examined by Dr Baker, he noted that liability had been accepted for the left shoulder but liability for any back condition had to be “determined”. Examination of the left shoulder at that time revealed restrictive range of movement and she was only able to elevate the arm to 90 degrees from the vertical and abduct to 80 degrees from the vertical. When commenting on the left shoulder condition, Dr Baker expressed the opinion that the plaintiff was suffering from a post-traumatic capsulitis as a result of the initial traumatic injury in the workplace. He considered that she had permanent impairment of the left non dominant arm as a result of her shoulder injury.
63 Dr Barton examined the plaintiff for the purposes of an impairment assessment. Such assessment was in relation to her low back and has little relevance to this proceeding.
64 The various short reports from Mr Xenos relate to the back condition of the plaintiff wherein he describes the plaintiff suffering from a persistent right L4-5 disc prolapse with nerve compromise which correlates well with her then claimed symptoms. Mr Xenos sought approval for the plaintiff to undergo a CT-guided L4-5 epidural injection which occurred on 27 February 2009. Mr Xenos describes the plaintiff having had a “dramatic response”, as she no longer experienced any pain in her right leg or paresthesia in that area, but continued to have some low-back pain.
Other material relied on by the First Defendant
65 The first defendant relies on the summary of income taxation returns of the plaintiff for the years running from 30 June 2004 to 30 June 2010.
Analysis of the evidence
66 After observing the plaintiff give evidence and be cross-examined, I formed the view that she was essentially a witness of credit who was attempting to give honest and accurate answers to the questions posed to her. There was some muted criticism of the plaintiff by counsel for the defendant, who essentially suggested that the plaintiff had had a large number of injuries and “knew” the system. Although I accept that the plaintiff has suffered a variety of injuries (only some of which are work-related), the occurrence of such injuries must be seen in what I consider to be an excellent work record.
67 I do find that the plaintiff is a fifty-five-year-old woman who suffered a left shoulder injury during the course of her employment with the first defendant on 24 September 2007. A claim for compensation was submitted by the plaintiff and such claim was accepted, as was a subsequent claim for permanent impairment of the left shoulder.
68 I also find that the nature of the initial injury was some type of soft-tissue injury to the left shoulder. In this respect, counsel for the first defendant highlighted that the various radiological studies undertaken by the plaintiff and in particular, the ultrasound of the left shoulder on 25 October 2007 and the MRI scan of the left shoulder undertaken on 18 March 2008 revealed no significant pathology (for example a tear of the supraspinatus tendon). However, although such is the case, there is a consensus of medical opinion that the trauma to the left shoulder suffered by the plaintiff on 24 September 2007 has been a cause of adhesive capsulitis of the left shoulder.
69 Counsel for the first defendant highlighted the opinions of Dr N Patrick (the treating rheumatologist), who last saw the plaintiff on 14 January 2008, and Mr Shane Barwood (the treating orthopaedic surgeon), who last saw the plaintiff on 21 March 2008, both of whom stated that the natural history of adhesive capsulitis is of slow but gradual resolution. However, it is to be noted that Mr Barwood also expressed the opinion that “… the outcome of these conditions is somewhat difficult to predict”.[48]
[48]See report dated 7 October 2008, exhibit 5 at page 63 PCB
70 I find that the plaintiff continues to suffer the condition of adhesive capsulitis of the left non-dominant shoulder and in particular, accept the evidence of the treating general practitioner, Dr Troedson, the treating physiotherapist, Mr M Hutchison, and the medico-legal opinion of the orthopaedic surgeon, Mr Fogarty, who examined the plaintiff on 19 June 2013.
71 I also note that there is no medical opinion relied on by the defendants to support the proposition that such condition has resolved. Put at its highest, Dr Rowe considered that when he last saw the plaintiff on 26 November 2009, the condition of the plaintiff was improving, and he made the diagnosis of a “resolving capsulitis”.
72 Given the length of time since the advent of such condition, I am satisfied that the plaintiff suffers a permanent impairment of the left shoulder as a result of such condition. I accept the opinion of the orthopaedic surgeon, Mr Fogarty, that the left shoulder injury will “remain for the foreseeable future”.[49]
[49]See exhibit 5 at pages 73-74 PCB
73 I also find that the plaintiff suffered a low-back injury during the course of her employment with the first defendant on 30 October 2006 which required treatment from a neurosurgeon (including two steroid injections), time off work, physiotherapy and tablet medication. Furthermore, such back condition has been exacerbated on occasion since that date. The plaintiff accepted that she has had low-back symptoms in the past with referred pain which has required treatment from a variety of sources.
74 However, it is to be noted that the plaintiff gave evidence, which I accept, that she presently receives physiotherapy from Mr Hutchison solely directed to her left shoulder, which has been the case for the last six months or so. Furthermore, her tablet medication (leaving aside any treatment for anxiety which has been an ongoing problem since a car accident in 1993) consisting of six Panadol Osteo daily and two to three Panadol Forte a week is for the relief of pain in her left shoulder.
75 The issue becomes whether any consequences suffered by the plaintiff as a result of her left shoulder impairment satisfy the narrative test. The defendants submit that the plaintiff fails to discharge her onus in satisfying the narrative test.
76 I make the following findings in relation to the consequences of her left shoulder impairment:
(a) The plaintiff gave evidence that she has reasonably significant restriction of movement in her left shoulder, essentially preventing her raising her left arm above shoulder height. Such assertion is borne out by the various physical examinations. Furthermore, such limitation is supported by the objective finding of both the general practitioner and Mr Fogarty that the plaintiff suffers wasting in her left shoulder area;
(b) I accept that the plaintiff has some degree of constant pain which is alleviated to some extent by the medication consisting of the six Panadol Osteo daily and the two to three Panadol Forte a week. Furthermore, I accept that such medication is essentially taken for her left shoulder injury;
(c) I accept that the left shoulder injury causes her to lose sleep, both as a result of the pain symptoms which she suffers and also, by the simple act of rolling onto the left shoulder, which causes her to wake because of the pain;
(d) I accept that any jolting activity, such as being in a boat or, more particularly, being on a “ski biscuit”, would give rise to added symptoms in the left shoulder;
(e) I accept that although capable of driving a motor vehicle, she experiences increased symptoms when driving for long distances;
(f) I also accept that she is capable of performing most of the housework, albeit in a slower fashion. I do find that there are difficulties in activities such as mopping, vacuuming and in particular, hanging washing on an overhead line. In this respect, assistance was obtained from her husband but unfortunately, he had suffered a heart attack of recent times which has caused her to be more active around the house, giving rise to difficulties with her shoulder;
(g) I find that the restriction in her left shoulder and accompanying pain does cause her to have a variety of difficulties in her everyday life, such as washing her hair, performing any arduous gardening, engaging with her grandchildren and generally activities which involve the use of the left arm.
77 The plaintiff was off work after the injury to March 2008, when she resumed alternative modified duties on a limited basis, building up to full-time work on modified duties which occurred seemingly in mid 2010. She has continued in modified duties since then and, according to her evidence, has not lost any time off work because of her left shoulder injury.
78 In this respect, although she seemingly has remained on the same wages and conditions, the plaintiff has suffered some loss of enjoyment in her work, in that she was a “hands on” production manager up until the time of the injury, whereas her alternative duties involving generally product assurance work, reflects her inability to reach out with her left arm or lift weights above 5 kilograms.
79 I also find that the alternative duties undertaken by the plaintiff also reflect her ongoing back vulnerability and such duties avoid activities where her back ma be stressed.
Do such consequences meet the requisite test?
80 In relation to this critical issue, I am assisted by several Court of Appeal decisions:
(a) Stijepic v One Force Group Aust Pty Ltd,[50] wherein Ashley JA and Beach AJA, by way of dicta, stated:
[50][2009] VSCA 181
“…The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[51]
[51]Stijepic v One Force Group Aust Pty Ltd (op cit) at paragraphs [40] – [42]
(b) In Stijepic, Ashley JA and Beach AJA also referred to Dwyer v Calco Timbers Pty Ltd (No 2),[52] wherein it is stated:
[52][2008] VSCA 260
“... the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[53]
[53]Dwyer v Calco Timbers (No 2) (op cit) at paragraph [27]
(c) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[54] wherein his Honour stated:
[54][2006] VSCA 292
“… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. … .”[55]
[55]Sumbul v Melbourne All Toya Wreckers Pty Ltd (op cit) at paragraph [24]
In Stijepic, Ashley JA and Beach AJA commented, in relation to those words:
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”[56]
[56]Stijepic v One Force Group Aust Pty Ltd (op cit) at paragraph [47]
(d) I also refer to Haden Engineering Pty Ltd v McKinnon,[57] wherein Maxwell P suggested that it is appropriate to distinguish, in relation to pain, the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[58] The approach taken in Haden was subsequently endorsed in Sutton v Laminex Group Pty Ltd[59] and also in Aburrow v Network Personnel Pty Ltd.[60] In particular, Maxwell P stated, in Haden:
[57](2012) 31 VR 1
[58]See Haden Engineering Pty Ltd (op cit) at paragraph [9]
[59](2012) 31 VR 100
[60][2013] VSCA 46
“The experience of pain
[10] As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
[11] 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);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[12] As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
Conclusion
81 After a consideration of all of the evidence, I am of the view that this is a lineball case, but ultimately taking into account all of the consequences suffered by the plaintiff as a result of her left shoulder injury, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and as being at least “very considerable”.
82 In this respect, I am satisfied the plaintiff has marked, genuine restriction of her left shoulder (as confirmed by the wasting), suffers ongoing pain symptoms which require regular medication and physiotherapy treatment. Furthermore her left shoulder impairment has significantly impacted on her day-to-day activities involving from minor things such as washing her hair, performing gardening and household activities and more particularly, being able to pursue previous well-enjoyed recreational activities such as boating and being involved with a “ski biscuit”.
83 Furthermore, I also accept that the plaintiff has suffered a loss of enjoyment of life as a result of changing the nature of her duties with the first defendant and her concerns that in the event that she did ever lose her employment, she may well have difficulty obtaining process work with her impaired left shoulder.
84 Accordingly, pursuant to s134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a left shoulder injury suffered by her on or about 24 September 2007 during the course of her employment with the first defendant.
85 I will hear the parties on the question of costs.
ANNEXURE A
1 The plaintiff tendered the following material:
Exhibit 1
· Claim for Compensation dated 24 September 2007 (at pages 1 – 3 of the Plaintiff’s Court Book (“PCB”)
· Employer Claim Report dated 2 October 2007 (at pages 4 – 5 PCB)
· Acceptance Notice from CGU Workers’ Compensation (Vic) Ltd dated 8 October 2007 (at pages 6 – 7 PCB)
· Plaintiff’s Claim for Impairments Form undated (at pages 8 – 10 PCB)
· Notice of Entitlement from CGU Workers Compensation (Vic) Ltd dated 26 August 2010 (at pages 11 – 18 PCB)
Exhibit 2
· Certificate of Incapacity dated 24 May 2013 (at pages 18a – 18b PCB)
Exhibit 3
· Affidavits of the plaintiff sworn 22 December 2011 and 28 June 2013 (at pages 32 – 41 PCB)
Exhibit 4
· CT scan of the left shoulder and cervical spine dated 28 September 2007 (at pages 42 – 44 PCB)
· Ultrasound of the left shoulder dated 25 October 2007 (at pages 45 – 46 PCB)
· Left hydrodilatation dated 3 December 2007 (at page 47 PCB)
· Left shoulder joint injection dated 7 February 2008 (at page 47a PCB)
· MRI scan left shoulder dated 18 March 2008 (at page 48 PCB)
Exhibit 5
· Medical reports from the treating general practitioner, Dr Gayle Troedson dated 16 October 2008, 8 October 2009, 29 July 2012 and 23 June 2013 (at pages 49 – 54 PCB)
· Medical report from the rheumatologist, Dr Mark Patrick, dated 26 September 2008 (at pages 55 – 60 PCB)
· Medical report from the shoulder and elbow orthopaedic surgeon, Mr Shane Barwood, dated 31 January 2008 and 7 October 2008 (at pages 61 – 63 PCB)
· Reports from the physiotherapist, Mr Murray Hutchison, dated 29 March 2010 and 26 July 2013 (at pages 64 – 69e PCB)
· Medico-legal report from the orthopaedic surgeon, Mr M Fogarty, dated 26 June 2013 (at pages 70 – 74 PCB)
2 The first defendant tendered the following material:
Exhibit A
· Medical reports of the occupational physician, Dr James Rowe, dated 23 June 2008 and 26 November 2009 (at pages 1 – 11 of the Defendants’ Court Book (“DCB”)
· Medical report of the orthopaedic surgeon, Mr Clive Jones, dated 24 August 2008 (at pages 12 – 19 DCB)
· Report of the occupational physician, Dr C Baker, dated 24 July 2010 (at pages 20 – 25 DCB)
· Report of the occupational physician, Dr David Barton, dated 12 November 2010 (at pages 26 – 33 DCB)
· Medical reports of the neurosurgeon, Mr C Xenos, dated 16 December 2008, 7 April 2009 and 13 October 2009 (at pages 36 – 39 DCB)
· Report from Mr S Barwood dated 17 March 2008
Exhibit B
· Summary of income taxation returns (at page 75p PCB).
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