Gholizadeh v VWA
[2020] VCC 142
•27 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00329
| SAHAR GHOLIZADEH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2019 | |
DATE OF JUDGMENT: | 27 February 2020 | |
CASE MAY BE CITED AS: | Gholizadeh v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 142 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of both loss of earning capacity and pain and suffering – reliance upon paragraph (a) of the definition – injury to the cervical spine and to the left shoulder – earning capacity of the plaintiff – quantum of post-injury earnings – whether capacity exists to work longer hours – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr B McKenzie | Minter Ellison |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the Act”). I might say that, in a supporting affidavit, the plaintiff refers inter alia to an incident on 14 July 2014, which would place the application under the operation of the Workplace Injury Rehabilitation and Compensation Act 2013. However, the principal incident of injury occurred on 8 April 2014 and no point was taken as to which Act applies. Given the manner in which the evidence unfolded, I shall treat the operating Act as being the Accident Compensation Act as pleaded. I note that, on the face of it, the plaintiff is also relying upon injury suffered throughout the course of employment, which straddles 1 July 2014, but, again, the emphasis seems to have been placed largely upon the incident of 8 April 2014.
2 In any event, the plaintiff seeks leave to bring proceedings for damages in respect of loss of earning capacity and pain and suffering. Originally, there was some reliance, to a minor extent, upon paragraph (c) of the definition, but this was abandoned in closing addresses – see Transcript (hereinafter referred to as “T”) 44. Of course, psychological or psychiatric factors can still be relevant for the purposes of disentanglement.
3 The injury relied upon is to the cervical spine and to the left shoulder. It was made clear at the outset that the defendant accepts that the plaintiff suffered compensable injury to the neck and to the left shoulder, but the issue of aggregation of the two impairments arises – see T13.
4 At the time of the injury, the plaintiff was working full-time as a personal care attendant. It is alleged that, on 8 April 2014, she was assisting a patient who suffered a seizure and flung her head back, thereby striking the left side of the plaintiff’s head and neck and her left shoulder. A further aggravation is said to have occurred on 14 July 2014 when a patient pulled the plaintiff’s left arm, causing further neck and shoulder pain. These shall hereinafter be referred to as “the accidents”.
5 At the time of the accidents, the plaintiff was employed by Australian Aged Care Group Pty Ltd, which shall hereinafter be referred to as “Care Group”.
6 Mr J Richards QC with Ms J Frederico of counsel appeared on behalf of the plaintiff. Mr B McKenzie of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to the accidents
7 The plaintiff is aged 44 years, she having been born in 1975. She was born in Iran, where she completed her schooling and obtained a Bachelor of Nursing. She also worked as a Registered Nurse for some 12 years, mainly in the area of eye surgical nursing. She came to Australia with her husband and daughter in 2012. She commenced working for Care Group in November 2012. It was her intention to take the steps necessary for the recognition of her qualifications so that she could work as a registered eye surgical nurse. She is right hand dominant.
(c) The plaintiff as a witness
8 The plaintiff impressed me as a genuine and straightforward witness. I note that Dr Kilner Brasier, occupational physician, examining the plaintiff at the request of her solicitors, described her as an excellent historian and a cooperative subject. Her treating rehabilitation specialist, Dr Ali Kian Mehr, also described her as cooperative, whilst Dr Dush Shan, consultant psychiatrist, who examined the plaintiff at the request of the defendant, described her as pleasant and cooperative. He was also of the view that there was no illness behaviour with respect to physical symptoms. Dr David Ho, occupational health consultant, examining on behalf of the defendant, described the plaintiff as presenting her history in a straightforward manner and with no exaggeration of her clinical features. He described her as being pleasant and cooperative. Dr Joseph Slesenger, specialist occupational physician, was another examiner on behalf of the defendant. He referred to the plaintiff as giving a clear and consistent account of her injuries. In summary, I regard the plaintiff as a witness of truth and I accept her evidence.
(d) The state of the plaintiff’s health prior to the accidents
9 Prior to the accidents, the plaintiff had suffered some symptoms of tiredness and dizziness in approximately 2012. She had also felt depressed. In addition, the plaintiff had suffered some mild knee pain as a result of exercises performed at a gymnasium. There was no indication of any previous injury or condition relating to the neck or the left shoulder. I accept that, prior to the accidents, she was essentially a fit person.
(e) The injuries, their treatment and diagnoses
10 Whilst there is some stated reliance upon the course of employment, the accidents lie at the heart of this application. Essentially, the plaintiff was working satisfactorily and enjoying her work prior to April 2014. On 8 April 2014 she was assisting a patient who had severe Parkinson’s Disease. She was lifting the patient onto her bed with a sling, when the patient’s head struck the left side of the plaintiff’s head and neck. On that same day she attended a doctor, Dr Nguy, who provided her with medication. It would appear that she was absent from employment for two days and returned to light duties, but with continuing shoulder pain. I appreciate that there may have been some aggravation of the plaintiff’s condition when a patient pulled her left arm on 14 July 2014, but the initiating and principal incident of injury is that of 8 April.
11 On 5 May 2014, the plaintiff had an ultrasound of the shoulder which, she was told, showed subdeltoid subacromial bursitis. She had an injection into it a couple of days later. It would appear that there was a reference by Dr Nguy to Mr Andrew McQueen, orthopaedic surgeon, this following a re-aggravation of the plaintiff’s work injury (presumably on 14 July 2014). She had several Cortisone injections of the left shoulder and cervical spine area, but did not respond to such treatment. A CT of the plaintiff’s cervical spine and an ultrasound of her left shoulder were performed on 20 October 2014, this apparently being upon referral from Dr Nguy.
12 The conclusion of the radiologist was that there was a left subscapularis partial thickness tear of approximately 0.3 centimetres diameter. There was left subdeltoid subacromial bursitis with bursal impingement on abduction. There was mild C5-6 cervical canal stenosis secondary to a central C5-6 disc prolapse. Following a question mark, the radiologist reported that there was cervical canal stenosis secondary to a central C5-6 disc prolapse and, following anther question mark, underlying cord or nerve root impingement. An MRI of the cervical spine was recommended.
13 An MRI was conducted on 24 October 2014, this again being upon referral from Dr Nguy. The conclusion of the radiologist was that there were mild posterior disc bulges at C5-6 and C6-7. There was no significant foraminal stenosis or evidence of nerve root compression.
14 Dr Nguy then referred the plaintiff to Mr McQueen, who did not recommend surgery, but referred the plaintiff to the Metro Pain Group, where she first attended on Mr Thomas Smith on 27 February 2015.
15 Whilst there is no material before me from those doctors, it is apparent that, on 4 June 2015, the plaintiff had a left ultrasound-guided suprascapular nerve block and intra-articular left shoulder injection. On 19 July 2015, she had a C7-T1 epidural injection. Shortly after this she returned to Iran. Whilst there, she had an MRI and was informed that this revealed no issues.
16 It would appear that shortly after this the plaintiff changed general practitioners and began attending Dr Peyman Esfahani, who speaks Farsi, which is the plaintiff’s first language.
17 Dr Esfahani referred the plaintiff for an MRI, which was performed on 17 November 2015. The findings were essentially normal.
18 Dr Esfahani referred the plaintiff to Associate Professor Martin Richardson, orthopaedic surgeon, who reviewed her on 27 January 2016. Associate Professor Richardson took a history that several injections had been tried in the plaintiff’s neck and shoulder and that she had been receiving physiotherapy. Clinical examination of the plaintiff’s neck and shoulder revealed a painful arc and positive impingement tests of the left shoulder. As conservative treatment was failing, arthroscopic subacromial decompression was recommended.
19 On 5 April 2016, shoulder surgery was performed by Associate Professor Richardson. The subacromial space showed significant bursitis and an acromioplasty and bursectomy were performed. After surgery, physiotherapy and hydrotherapy were recommended.
20 When Associate Professor Richardson saw the plaintiff on 15 June 2016, she was progressing well in relation to mobility, but had persistent subacromial impingement signs. A subacromial injection was given. The plaintiff was complaining of ongoing left sided brachialgia with radiation in the C8-ulnar nerve distribution into the hand. Nerve conduction studies were ordered to investigate this.
21 On 3 August 2016, a further MRI scan of the cervical spine and nerve conduction studies were noted to be normal. Despite a physiotherapy program, the neck pain persisted and the plaintiff was referred to a neurosurgeon, Mr Gus Gonzalvo. Apparently he did not recommend surgery.
22 When seen on 14 December 2016 by Associate Professor Richardson, the plaintiff had ongoing pain radiating down the left arm in a C8 distribution. Her left shoulder was noted to be quite stiff. A hydrodilatation was recommended to help some post-operative capsulitis. Keloid scarring was also noted.
23 Associate Professor Richardson again saw the plaintiff on 17 May 2017. There was persistent stiffness noted in her shoulder and a hydrodilatation was again recommended. Mild subacromial impingement symptoms were noted. Ongoing physiotherapy was also recommended.
24 Associate Professor Richardson recorded that, on 25 September 2017, the left shoulder stiffness was persisting, with limitations in movement. A request for hydrodilatation was made to the insurer. By this time, the plaintiff was working on a new job, teaching nursing at the Murrumbeena TAFE. She was still unable to lift saline bags above shoulder height due to neck and shoulder issues. The plaintiff was reviewed again on 29 November 2017. Ongoing irritability in the shoulder was noted and a corticosteroid injection recommended. The plaintiff was next seen on 27 August 2018. She was having ongoing troubles with her left shoulder. She was suffering from ongoing ulnar neuritis in the left hand, with numbness in the medial two fingers. As reported by Associate Professor Richardson, by this stage the plaintiff had seen Professor Richard Bittar, neurosurgeon. An MRI scan of the left shoulder on 2 October 2018 recorded no significant abnormality. There is no indication that Associate Professor Richardson has seen the plaintiff since 2 October 2018.
25 As stated, the plaintiff had been seen for treatment by Professor Bittar, who reported to the plaintiff’s solicitors on 11 November 2019. When first seen by Professor Bittar on 15 June 2018, the plaintiff described neck pain aggravated by any activity, assessing her resting pain at 7/10. She had intermittent shoulder pain of 6/10 severity. She also reported headaches, along with occasional nausea and vomiting. She had left forearm pain which was intermittent and radiated into the hand, along with some numbness. I note that Professor Bittar stated that a left shoulder ultrasound had been performed on 27 June 2018 which demonstrated a number of abnormalities “beyond my area of expertise”. Presumably in relation to her neck, he thought that she had most likely suffered a soft tissue injury and had developed a widespread chronic pain syndrome.
26 Professor Bittar reviewed the plaintiff again on 12 December 2018. By this time, the plaintiff was teaching medicine at Box Hill TAFE, two and a half days per week. She was complaining of widespread left sided pain affecting her neck, shoulder girdle and arm, there also being some lower back and left leg pain. Professor Bittar recommended review by a rehabilitation specialist, Dr Ali Kian Mehr. Professor Bittar described the plaintiff’s prognosis as being guarded. He felt that she had developed a very significant widespread chronic pain condition, and it was unlikely that there would be any curative treatment options available to her. He thought that she was likely to continue to suffer from significant pain and disability into the foreseeable future.
27 Dr Ali Kian Mehr in fact saw the plaintiff on 1 February 2019. He took an appropriate history. At the time of his first assessment, the plaintiff’s pain was mainly in the right shoulder and was associated with significant restriction of movement. There was also some pain and spasm on the left side of the cervical spine. The plaintiff’s pain was constant and aggravated by use of the left upper limb and other manual activities. Her function, psychological status and sleep had been significantly affected by the pain. There were various restrictions in relation to her activities. The plaintiff saw a psychologist regularly. Dr Mehr referred to the plaintiff as having chronic left shoulder pain and restriction in motion; chronic cervical spine pain, being the aggravation of cervical spondylosis; pain to the lower limbs; chronic right shoulder pain, which was an overwork syndrome; and to there being significant impact upon the plaintiff’s function and psychosocial status. He thought that she needed continued physical management of her condition, including regular exercise in a gymnasium and hydrotherapy, and also needed psychological support.
28 Dr Mehr thought that the prognosis was poor due to the chronicity of the condition. At that time, he thought that she had no capacity for work, referring to this as likely to be the situation for the foreseeable future (this does not seem to be an accurate finding, given that Dr Mehr had earlier noted that, at the stage that he saw her, the plaintiff was working part-time and was teaching nursing). Overall, he thought that her physical limitations and psychological instability would continue for the foreseeable future.
29 Reports from two treating physiotherapists were also placed in evidence. Mr Chris Woodman treated the plaintiff between 21 July 2014 and 13 October of that year. At that time, she was unable to lift her left arm and was having difficulty sleeping. To a considerable extent, his report has been overtaken by events. Mr Shah Aryan reported on 27 May 2019. The dates on which Mr Aryan has treated the plaintiff are not clear, but it is apparent that he referred the plaintiff to Associate Professor Richardson. The diagnosis of Mr Aryan was of discogenic pain from C5-6 with irritation of the C6 nerve. He also diagnosed left shoulder bursitis and tendonitis of the supraspinatus with impingement of the left shoulder. Various treatments were undertaken, including electrotherapy, ultrasound therapy, mobilisation of the thoracic and cervical spine, manipulation of the thoracic spine and deep tissue massage. Hydrotherapy and light exercises were also organised. Mr Aryan expressed the view that the plaintiff’s spinal injury was now at a chronic stage, referring to her as having pain, spasm and stiffness. He thought that she would benefit from ongoing rehabilitation.
30 A report from Dr Esfahani, the current treating general practitioner, was also placed in evidence. Dr Esfahani referred to the plaintiff as suffering from chronic neck and left shoulder pain due to the injury. It was noted that the plaintiff’s latest return to work had been in March 2018 and, due to neck and left shoulder pain, she only worked part-time for a maximum of 15 hours per week.
31 Dr Esfahani organised for the plaintiff to undergo the left shoulder ultrasound which was performed on 27 June 2018. This revealed a small partial thickness bursal surface tear present in the posterior aspect of the insertion of the supraspinatus tendon. There was no evidence of a full thickness tear within the tendon. Essentially there was no other significant abnormality detected. Dr Esfahani referred to the findings as being a “new change”. Dr Esfahani repeated that the plaintiff can work only two shifts per week, each shift being a maximum of seven hours. He thought that the plaintiff should consider a half-hour rest after every two hours of work. The situation had made her mood low and there was a need for her to continue with physiotherapy, hydrotherapy and psychology sessions.
32 The plaintiff has also been seen for medico-legal purposes. Her solicitors arranged for her to see Mr Stephen Doig, orthopaedic surgeon, who reported to them on 20 May 2019. Mr Doig took a detailed history. This included the fact that the plaintiff had returned to work in late 2017 as a nurse, but found that this aggravated her left shoulder and neck “a lot”. Accordingly, she changed jobs and became a nurse educator. At the time of seeing Mr Doig, she was working two days a week, seven hours per day, and was coping, but finding it difficult, primarily because of her neck. She was currently taking Panadol Osteo and anti-depressant medication. She was seeing the physiotherapist on a weekly basis and was awaiting hydrotherapy. There was no plan for any further surgery.
33 The diagnosis of Mr Doig in relation to the plaintiff’s left shoulder was of a partial thickness tear of the subscapularis with subsequent subacromial bursitis. A degree of post-operative frozen shoulder had developed. He implicated employment. Mr Doig considered the plaintiff to be considerably restricted in her range of movement and she complained of significant ongoing pain in the shoulder. There was global weakness in the left arm. Mr Doig considered the restrictions involved to be permanent. He thought that there could be a steady increase in the number of hours of work tolerated. However, he considered the prognosis to be “a little guarded”. He noted that the plaintiff continued to be very restricted in her range of movement and wondered whether anything could be done in order to increase this. He suggested that she again see her treating orthopaedic surgeon. If it was decided against doing anything further, Mr Doig considered that the plaintiff’s restrictions at this stage could be regarded as permanent. Mr Doig also stated that, at this stage, he did not consider that further treatment was appropriate. Continuing to have physiotherapy was reasonable.
34 Dr Kilner Brasier, occupational physician, saw the plaintiff at the request of her solicitors on 21 June 2019, reporting on the same day. The plaintiff described to Dr Brasier how she had attempted a return to work as a nurse, but she was no longer able to do this and was now working as an educator on a part-time basis. Dr Brasier noted that there was significant disuse muscle wasting in the left shoulder girdle and that movement was globally restricted. Rotation movement of the cervical spine was severely limited to the left and attempts to extend the cervical spine produced a report of pain and dizziness. The plaintiff had reduced grip strength of the left hand, with a loss of touch sensation in some of the fingertips. Dr Brasier noted that the plaintiff was taking Panadol Osteo as required up to six per day. The plaintiff was also having physiotherapy weekly, and was awaiting approval in relation to hydrotherapy.
35 The diagnosis of Dr Brasier was that the plaintiff had suffered a partial tear of the left supraspinatus tendon, subacromial bursitis and subdeltoid bursitis with impingement. This had resulted in a loss of range of movement and with significant left shoulder girdle muscle wasting. She had also suffered an aggravation of cervical spondylosis, resulting in chronic neck pain and loss of flexibility. That was particular so in relation to rotation movement to the left. He implicated employment. It was the opinion of Dr Brasier that, when considering the plaintiff’s left shoulder injury alone, she had no capacity to return to full-time work in her pre‑injury duties. The same could be said of the neck injury. Each injury had removed her capacity to return to full-time unrestricted work as a Division 1 Registered Nurse. He felt that the plaintiff had a realistic capacity for 12 hours’ work per week on a consistent, reliable and permanent basis without the risk of re-injury, considering the left shoulder injury alone. He took into account her age, education, skills, work experience and the like. He was also of the view that she had a realistic capacity for 12 hours’ work per week arising from the neck injury when considered alone. In each instance, he considered the prognosis to be poor. Ongoing treatment would be required, but he did not consider the plaintiff to be a good candidate for future surgery.
36 At the request of her solicitors, the plaintiff was also seen by Dr Hazem Akil, neurosurgeon. Dr Akil saw the plaintiff on 16 October 2019, reporting on the same day. On examination, Dr Akil noted that the plaintiff had severe restriction of movement in all directions of her cervical spine. She had reduced sensation involving the whole of the left upper limb. She also had reduced power in all muscle groups of the left upper limb, but primarily this was due to significant pain and discomfort. The diagnosis of Dr Akil was of myofascial neck pain, plausibly caused by the type of injury that she had experienced in her employment. This was combined with left shoulder pathology consisting of left shoulder bursitis, as well as a subscapular tear. This was compatible with the history given.
37 In relation to her neck symptoms, Dr Akil considered the prognosis to be poor. He did not see any positive outlook in the foreseeable future in respect of her pain. He did not see any indications for surgery, but suggested continuation of physiotherapy and review by a pain specialist. Dr Akil was of the view that her employment was the primary cause of her neck injury. He was of the belief that the incapacities which she had will continue for the foreseeable future. He did not believe that she was able to return to full-time unrestricted work in her pre‑injury position, given the significant amount of neck pain that she was having. Realistically, she could do part-time work that involved alternating between sitting and standing and did not involve the handling of patients.
38 The defendant has also had the plaintiff examined for medico-legal purposes. Indeed, the defendant has had the plaintiff examined by no fewer than 10 medical practitioners. To some extent, at least a couple of their reports have been overtaken by events and I shall leave to one side, at least for the moment, reports relating to psychological or psychiatric factors.
39 Dr David Ho, occupational health consultant, reported to the defendant on 17 September 2014. The description of the principal incident of injury and subsequent developments, including medical treatment, was consistent with what has been described elsewhere. Of course, this report had been compiled only approximately five months after the initial accident. The plaintiff’s principal complaints at this time appear to have related more to her left shoulder than to her neck. In any event, Dr Ho described her as presenting her history in a straightforward manner and with no exaggeration of her clinical features. He also described her as being pleasant and cooperative. He thought that the plaintiff had most likely sustained a left shoulder strain. He also described it as a likely rotator cuff injury. He suggested that an MRI be conducted. He also placed restrictions upon her work requirements. He suggested a future review.
40 A second report from Dr Ho dated three days later concerns a worksite assessment. However, he observed that her progress in relation to her return to work would depend upon the findings of an MRI of her cervical spine and shoulder. He thought she would be able to perform selected duties for her pre‑injury hours.
41 Mr Michael Troy, surgeon, examined the plaintiff at the request of the defendant on 10 November 2015, reporting some eight days later. The examination by Mr Troy indicated acute tenderness and crepitus in the left acromioclavicular joint. His diagnosis was of a C5-6 disc lesion of the cervical spine, plus a tear in the subscapularis to the left rotator cuff and a subacromial bursitis to the same shoulder. He found her medical condition, history and examination were consistent with her complaints. There was no evidence that the plaintiff had pre‑existing changes in her shoulder or to any marked degree in her cervical spine. Symptoms still existed. Mr Troy expressed the opinion that the plaintiff had no capacity to go back to pre‑injury duties as a hands-on nurse. He thought that she had the ability to do light work, perhaps involving respite care or being an activities coordinator.
42 At the request of the defendant, the plaintiff was seen by Dr Majid Rahgozar, occupational physician, on 30 May 2016. He took a detailed history. The plaintiff was seeing a general practitioner once a month, her physiotherapist once a week and attending hydrotherapy. She was seeing a psychological counsellor and receiving marriage counselling. Dr Rahgozar had available to him the reported findings of the MRI of 17 November 2015 and the ultrasound of the left shoulder of 20 November of that year. He was aware of the surgery which had been performed. He expressed the view that the plaintiff’s neck pain had become chronic in the context of a number of psychosocial risk factors and stresses. He thought that the initial neck pain was likely to have been a musculoligamentous injury. He referred to the fact that she had been diagnosed with chronic impingement of the left shoulder and undergone surgery approximately eight weeks before his seeing her. He noted that she seemed to be recovering reasonably well. He thought that the left shoulder injury was likely to have been an aggravation of pre‑existing degenerative changes, resulting in chronic impingement requiring surgery.
43 Dr Rahgozar did not think that the plaintiff could return to her pre‑injury duties and placed various restrictions upon her, such as avoiding lifting, pulling, pushing, carrying heavy objects weighing more than 5 kilograms with the left hand, use of that arm at or above shoulder level and avoiding frequent bending and twisting. He thought that she did have the capacity for positions such as a sales role, membership consultant, call centre worker and the like. She required ongoing exercise, hydrotherapy and physiotherapy.
44 Dr Rahgozar reviewed the plaintiff on 15 November 2016. The plaintiff was taking four Panadol Osteo tablets a day and some other medication. In addition to seeing a psychiatrist and her general practitioner once a month, she was having physiotherapy twice weekly, in addition to exercises and Pilates. On this occasion, Dr Rahgozar thought that her neck pain had become a non-specific chronic pain no longer materially contributed to by the compensable injury. In relation to her left shoulder, she appeared to have continued to experience some pain and had signs indicative of some ongoing impingement. She had received an ultrasound-guided Cortisone injection under the care of Mr Richardson. She was not fit for non-restricted pre‑injury type duties, but had a capacity for normal hours of work on alternative duties with, again, a list of restrictions operating. His opinion in relation to the left shoulder condition was that it was an aggravation of pre‑existing degenerative changes that had resulted in chronic impairment. Dr Rahgozar believed that the injury of the neck was musculoligamentous in nature and had resolved. It was no longer materially contributed to by the compensable injury. He also thought that the plaintiff’s lack of capacity for normal hours and the need for modification of duties was likely to be long term. She had the capacity to work as a receptionist, ward clerk and the like.
45 Dr Rahgozar saw the plaintiff again on 21 March 2017. By this time, the plaintiff had obtained her Registered Nurse status. She was in the midst of a placement of five weeks in Echuca. The travelling to and from there had been difficult. Apparently she had to complete a further three weeks in order to obtain her Registered Nurse status and then move on with less physically demanding work. There had not been a significant change in her symptoms and her sleep was interrupted. The work that she was doing at Echuca did not involve physically demanding duties. The opinion of Dr Rahgozar in relation to the neck injury remained the same.
46 In relation to the left shoulder, he thought that there had been no significant change in the assessment. The plaintiff still had a reduced range of motion. He was still of the view that the plaintiff could not return to pre‑injury duties, but had a capacity for alternative nursing duties. She also had the capacity for work such as a receptionist or clerk and the like. Her mental health issues continued to be significant. However, she still had significant pathology in the left shoulder.
47 Dr David Elder, consultant in occupational medicine, saw the plaintiff at the request of the defendant on 27 June 2017. Leaving to one side the history of treatment, Dr Elder recorded that the plaintiff had just commenced work at a clinic which did “natural infusions” for people with cancer. She was working 22 hours per week, being three days. The predominant reason for the examination by Dr Elder seems to have been the assessment of permanent impairments pursuant to the AMA Guides. He thought that there was some abnormal illness behaviour. He was prepared to make an assessment of permanent impairment of the shoulder. He also diagnosed mechanical neck pain and made an assessment in this regard. As is evident from this, he considered the plaintiff’s impairment to be stabilised. I note that the Medical Panel also arrived at an assessment, although finding it to be zero per cent in relation to the cervical spine.
48 Dr Philip Mutton, consultant occupational physician, saw the plaintiff at the request of the defendant on 17 October 2018. In the history taken, Dr Mutton recorded further details of the plaintiff’s post-injury employment, including the fact that she had taken up employment at Box Hill TAFE one month previously. She was working 10 hours per week undertaking nursing teaching. Upon examination, reduced rotation of the neck was revealed. A number of findings were made in relation to the left shoulder, including tenderness over the trapezius, reduced external rotation and tenderness anteriorly and posteriorly. He indicated that the plaintiff presented as being quite affected by pain and loss of function in the non-dominant left shoulder. This would have an impact upon her capacity to work in aged care or nursing.
49 Dr Mutton diagnosed a traction-type injury to the left shoulder, resulting in surgery. He considered that her condition had not resolved and that she still had quite marked loss of range of movement in that shoulder. He felt that she would be able to work her pre‑injury hours, but not be able to perform her pre‑injury duties. She could perform work such as a receptionist, ward clerk, customer service representative, bank worker, call centre operator or health practice manager. The work could be done to a weight limitation of 2 kilograms to 5 kilograms and with work below chest height, particularly with the elbows to her sides. He thought that she would be able to work greater than the 10 hours per week which she was currently working as a nurse educator. He also noted that the plaintiff stated that her condition had plateaued in recent times. He observed that, therefore, it was unlikely that there would be a greater capacity for return to work in the future. The plaintiff stated that she was struggling with the 10 hours per week work which she was performing. Dr Mutton thought that the plaintiff would be able to work 20 hours per week by working either full days or half days. However, there would have to be restrictions. Ideally she would need to keep her arms to her sides and lift no more than 2 kilograms to 5 kilograms. He also described her as suffering chronic pain that could be difficult to treat, observing that there was an ongoing work relationship.
50 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff at the request of the defendant on 23 July 2019. The plaintiff complained of residual pain in the left shoulder that was constant, severe, and aggravated by activity. She also had ongoing neck pain, particularly on the left side. This was also described as being constant, severe and aggravated by activity. The pain radiated into the left upper limb and left hand. In relation to her present part-time employment of 15 hours per week, she advised that she was struggling to do such things as write reports. She limited the number of books, papers and material that she carries.
51 Dr Slesenger also looked at some of the medical reports. He described her as having a complex history of left shoulder/left neck injury that developed subsequent to a direct contusion to the left side of the head and left shoulder and subsequent traction of the left upper limb. She described the residual pain in the left shoulder as being constant, severe, and aggravated by activity, including lying on the left side. Symptoms were worse in cold weather. The pain radiated to the left upper limb. She also referred to ongoing neck pain, particularly on the left side. This pain was also constant, severe and aggravated by activity. She had intermittent right shoulder pain, which she attributed to overuse.
52 The diagnosis of Dr Slesenger was of a cervical spine soft tissue injury with developing chronic cervical spinal pain, now partly resolved. There was also a left shoulder soft tissue injury and bursitis for which the plaintiff had undergone surgery and which was now partly resolved. He noted a number of non-organic features. He thought that she retained a capacity for alternate duties with restrictions, referring to such occupations as receptionist, ward clerk, bank worker and the like. Any pre-accident symptoms were mild and short-lived and she was able to remain in work without restrictions. However, Dr Slesenger was of the opinion that the work-related injury had now in the most part resolved.
53 Dr Slesenger provided a further report to the defendant, this report being dated 20 November 2019. There is no indication that Dr Slesenger had seen the plaintiff again. He commented upon some documentation which had been forwarded to him. This included the report of Mr Michael Dooley of 21 October 2019, to which I shall come shortly. He also looked at a vocational assessment report from Recovre of 4 November 2019.
54 In answer to specific questions, he expressed the opinion that the plaintiff could return to work with restrictions, namely no pushing, pulling, carrying or lifting over 12 kilograms occasionally and 7.5 kilograms repetitively. He thought that she could initially return to work four hours a day, four days a week, but increase to pre‑injury hours over the course of 8 to 10 weeks. She would be unlikely to be able to meet the requirements of a return to work in nursing. She may be able to return to work in an administrative/educational role performing duties as a Registered Nurse in the surgical sector.
55 In relation to the positions of both Registered Nurse (surgical) and Registered Nurse (medical), Dr Slesenger recommended a job-specific work site assessment prior to her returning to work in either role. He thought that she would be unlikely to be able to meet the inherent demands of all employment options under these job titles. However, and perhaps somewhat confusingly, he thought that she could return to work, working pre‑injury hours, in her current role or as a Registered Nurse (surgical or medical) with the restrictions to which he had referred.
56 Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendant and reported on 21 October 2019. The plaintiff described her complaints and work ability, including that she had worked for five weeks at an integrated medical centre. She was involved in inserting intravenous drips and the like. However, her shoulder had become painful and she could not continue in that work. I note that no radiological investigations were forwarded to Mr Dooley, although he was able to extract some information from the report of the Medical Panel.
57 Mr Dooley thought that the plaintiff had suffered a soft tissue musculoskeletal injury to the region of the left shoulder. He thought that the constancy and intensity of ongoing pain and disability were greater than one would expect to see from her organic condition. He also thought that there was a psychological reaction to a situation which had dominated her clinical presentation. He referred to the plaintiff’s background and to the fact that a straightforward soft tissue musculoskeletal injury can lead to a situation where it is “the straw that breaks the camel’s back”. He did not think that the plaintiff required specific ongoing treatment. She should be encouraged to remain generally active, to undertake low impact exercise and, importantly, remain in stable and suitable employment.
58 Mr Dooley was of the opinion that the plaintiff’s orthopaedic condition had stabilised and he would expect her to note some intermittent pain. She had a physical capacity to undertake a wide range of light physical work and clerical duties. She would not be able to carry out all the duties of a personal care assistant in an aged care facility. In Mr Dooley’s opinion, she had the physical capacity to be able to work as a theatre nurse in ophthalmology. He expected her to be able to carry out administrative and teaching-type work. She would not be able to carry out regular heavy physical work that involved a lot of activity at and above shoulder level.
59 In relation to the injury to the plaintiff’s left shoulder, I accept the diagnosis of Mr Stephen Doig, namely that of a partial thickness tear of the subscapularis with subsequent subacromial bursitis and a degree of post-operative frozen shoulder. This is similar to the opinion of Dr Brasier, his diagnosis being of a partial tear of the left supraspinatus tendon, subacromial bursitis and subdeltoid bursitis with impingement, resulting in a loss of range of movement and significant left shoulder girdle muscle wasting. The plaintiff’s treating general practitioner, Dr Esfahani, has referred to the plaintiff as having chronic left shoulder pain due to the injury, also referring to the radiological findings of a left supraspinatus partial tear, left subdeltoid bursitis and left subacromial bursitis, along with the more recent ultrasound findings of partial left supraspinatus and bursal surface tear. The Medical Panel referred to the worker as suffering from residual left shoulder dysfunction following a surgically treated soft tissue injury. Given the treatment, including surgery, which the plaintiff has undergone and the symptoms from which she complains, I am of the view that, however it be described, the injury to the plaintiff’s shoulder is of an organic nature. It seems to me that the condition is best described by Mr Doig and, as stated, I accept his diagnosis.
60 I also accept that the consequences of the injury to the shoulder are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Mr Doig has stated that, if it is decided against doing anything further as a result of a follow-up by a treating orthopaedic surgeon, the restrictions from which the plaintiff suffers at this stage can be regarded as permanent. In her affidavit of 26 November 2019, the plaintiff has sworn that she had undergone surgery and did not get a great outcome. She was frightened of having further surgery. I note that the Medical Panel formed the view that the plaintiff’s current physical injury had substantially stabilised and was unlikely to remit with or without medical treatment. For the purposes of an impairment assessment, the Panel was of the view that the plaintiff’s current physical condition was stable and permanent.
61 Mr Michael Dooley, examining on behalf of the defendant, stated that he believed that the plaintiff’s orthopaedic condition had stabilised. This opinion would appear to embrace both the left shoulder injury and that to the cervical spine. Dr Mehr, the treating rehabilitation specialist, has referred to the plaintiff as having chronic left shoulder pain and described the prognosis of the plaintiff’s pain condition as being poor. I appreciate that the plaintiff has not undergone a pain management program. However, Professor Bittar, whilst describing her as having a very significant and widespread chronic pain condition, also stated that she was likely to continue to suffer from significant pain and disability into the foreseeable future. It is to be remembered that it was Professor Bittar who referred the plaintiff to Dr Mehr and his opinion as to prognosis has been set out above. When these various opinions are considered, it seems to me that the plaintiff has discharged the burden of proof in relation to permanence of the consequences of the left shoulder injury. The same could be said of the neck injury.
62 There is no indication that the plaintiff had previously suffered from any condition of or injury to the left shoulder or neck. For example, the history obtained by Mr Dooley was that the plaintiff had been generally fit and well in the past. She had experienced some tiredness and dizziness in 2012 and fractured her left distal radius in December 2015. However, there is no history of any relevant injury or symptoms.
63 Whilst ultimately there was no reliance upon paragraph (c) of the definition, psychological or psychiatric factors have the potential to be relevant for the purposes of disentanglement. In this regard, I note that the defendant had the plaintiff examined by Dr Dush Shan, who reported on 20 March 2017. He expressed the opinion that the plaintiff did not present with evidence of clinically significant psychological symptoms. Effectively he questioned the need for a further prescription of antidepressants. He did diagnose an adjustment disorder with mixed depression and anxiety, but also stated that there were no psychiatric barriers in relation to employment or retraining.
64 Dr Steven Adlard, consultant psychiatrist, also examined the plaintiff at the request of the defendant. He noted that she had seen a psychologist and was taking antidepressant medications until recently before the interview of 23 June 2017. However, she presented with relatively mild symptoms. He thought that she had developed an adjustment disorder with mixed anxiety and depressed mood after her left shoulder condition developed. However, he also observed that her re-entry into the workforce was positive, referring to her sensible plans for the future. He thought that a return to the workforce would have a positive effect, also stating that “her psychiatric condition is not more than mild in any case”. He also referred to her as functioning at a reasonably good level. This type of opinion is consistent with the presentation of the plaintiff in the witness box. The consequences of a psychological or psychiatric nature shall not be taken into account, but I am of the opinion that they are mild, if they exist at all. Certainly, as opined by Dr Shan, there are no psychiatric barriers in relation to the plaintiff’s return to suitable employment.
65 Whilst both injuries have been discussed in the preceding paragraphs, the injury to the neck has probably received less attention than the injury to the shoulder. A CT scan of the neck on 20 October 2014 showed mild C5-6 cervical canal stenosis secondary to a central C5-6 disc prolapse. A query was raised as to nerve root impingement. Minor lower cervical spondylosis was also noted. There have been three MRIs of the cervical spine, these being taken on 24 October 2014, 17 November 2015 and 23 September 2016. The first of these showed minor posterior disc bulges at C5-6 and C6-7, but no significant foraminal stenosis or evidence of nerve compression. The second revealed normal findings. The third was to similar effect. Neck complaints receive a passing mention in the report of Associate Professor Richardson, but the focus of his report is much more upon the shoulder injury.
66 Professor Bittar believed that the plaintiff had most likely suffered a soft tissue injury to the neck, but had developed a widespread chronic pain syndrome. Dr Esfahani has referred to the plaintiff as having chronic neck and left shoulder pain. Mr Chris Woodman, physiotherapist, who treated the plaintiff in 2014, referred to an MRI as revealing cervical spine changes and also referred to the left lower cervical spine dysfunction resulting in referred pain to the left shoulder. Mr Shah Aryan, physiotherapist, who initially saw the plaintiff in December 2015, has referred to her as having a painful cervical and top thoracic spine and diagnosed discogenic pain from C5-6 with irritation of the C6 nerve. Whilst Mr Doig makes some reference to complaints of neck pain, his report is directed largely to the shoulder injury. Dr Brasier has referred to the plaintiff as suffering an aggravation of cervical spondylosis resulting in chronic neck pain and loss of flexibility. He considered that her neck injury, when viewed alone, resulted in her having no capacity for return to full-time work in her pre‑injury duties. Dr Akil, neurosurgeon, effectively concentrated only on the neck injury. He diagnosed myofascial neck pain. He considered the prognosis to be poor, with no positive outlook in the foreseeable future in relation to her pain. He implicated the employment injury. He believed that resulting incapacities would continue for the foreseeable future.
67 Dr Slesenger, examining on behalf of the defendant, took a history of symptoms emanating from the cervical spine. He diagnosed a soft tissue injury that had partly resolved as at the date of his examination in July 2019. Mr Dooley thought it possible that the plaintiff had sustained a soft tissue injury in the region of her left shoulder, but also recorded a complaint of left-sided neck pain. In any event, he diagnosed a soft tissue musculoskeletal injury.
68 Dr Akil and Professor Bittar are the only specialists who seem to have concentrated on the neck injury effectively in isolation. Whilst they have used different wording, each has in essence diagnosed a soft tissue injury. It is a diagnosis which I accept. It is consistent with the radiological findings. Professor Bittar has referred to her chronic pain condition as being one for which it is unlikely that there will be any curative treatment, whilst Dr Akil has stated that, with regard to the plaintiff’s neck symptoms, the prognosis is poor and he could not see any positive outlook in the foreseeable future for her pain. I accept this. There is no suggestion that the injury represents an aggravation of a pre‑existing condition. The comments made in relation to the left shoulder injury concerning the leaving to one side or not taking into account consequences of a psychological or psychiatric nature are also appropriate in relation to the neck injury.
(f) Other developments since the injury
69 It would appear that the plaintiff remained employed by Care Group until approximately August 2015. She performed restricted duties, helping with patient care, but with no pushing or lifting. It would appear that her employment with Care Group was terminated in approximately September 2015. In 2015, the plaintiff passed a test in relation to English requirements, this being the first step towards obtaining eligibility to work as a Division 1 Nurse in Australia. She was eligible to undertake a bridging course, which involved a practical placement which was required in order to become a Registered Nurse. She claims that, as a result of her injury, she was unable to complete that bridging course. It was not until May 2017 that she obtained a Division 1 nursing qualification. This followed going to Kerang to undertake the practical placement. She claims that the physical work in relation to the practical placement was too difficult for her. The end result was that she was unable to return to her profession as a theatre nurse.
70 She then obtained part-time work at a cancer clinic in Hawthorn, but alleges that she was unable to continue because of her injury. She then studied and obtained her certificate to become a nurse educator. In August 2017, she commenced working full-time as a nurse educator for Care Training Australia and has continued in that work. She does not perform physical duties, but teaches Division 2 Enrolled Nurse students. She gave evidence that she is employed by Holmesglen TAFE two days a week as a nurse educator. Details of her earnings and the like will be discussed shortly. It would appear that she has been at Holmesglen TAFE since March 2019, having previously worked on a casual basis at the Box Hill Institute, where she missed some time due to her shoulder pain. She also worked briefly for Education Training and Employment Australia, but struggled to cope there. She has sworn that she tried working full-time as a nurse educator, but could not cope. Similarly, she could not cope with working three days per week, but is working two days, with some recovery time. She has sworn that she is working to her maximum capacity.
Ruling
(i) Loss of earning capacity
71 Firstly, I shall deal with the issue of “without injury” earnings. The parties are in agreement in relation to the appropriate figure – see T45. That figure is $1,514 per week, a gross annual figure of $78,728. Sixty per cent of that is $47,237. The weekly earnings in that regard would be $908.40.
72 I turn now to “after injury” earnings. In calculating these, I shall be taking into account the consequences of the left shoulder injury only. In her affidavit of 26 November 2019, the plaintiff has sworn that she is earning approximately $45 gross per hour, which, for a 15 hour week, is $675 gross. Annualised for a 52 week year, this would convert into a figure of $35,100.
73 On the basis of these figures as a mathematical exercise and without going into the issue of capacity, the plaintiff would satisfy the requirements of the provisions. Sixty per cent of the agreed “without injury” gross annual income of $78,728 is $47,237. Earnings of $45 per hour for a 15 hour week and 52 weeks for the year is $35,100. In short, if I am satisfied that working for 15 hours per week in her present occupation represents the plaintiff’s maximum earning capacity, she would succeed. By my calculations, the “cut-off line” in relation to 60 per cent of “without injury” earnings at the rate of $45 per hour would be 20.18 hours per week for an earning year of 52 weeks.
74 If the plaintiff has the capacity to work as a Registered Nurse (surgical) or Registered Nurse (medical), being figures and occupations referred to in the Recovre report of 4 November 2018, the hourly rate would seem to me to be less. In other words, the plaintiff’s current gross hourly rate of pay seems to me to be higher than that for the occupations suggested by Recovre. A rate of $45 per hour for a 40 hour week would produce earnings of $1,800 per week, which is above either of the earning rates set out in the Recovre report.
75 Thus, it seems to me that the central issue is whether the plaintiff is capable of working more than 15 hours per week at her current rate of pay and, if so, for how many hours per week is she capable of so working? That is perhaps simply another way of putting the propositions advanced by Mr McKenzie at T45 and the following pages.
76 On balance, I am of the view that the plaintiff, by working 15 hours per week in the nurse educator role, is working to the maximum of her earning capacity. In arriving at that conclusion, I am considering only the injury to the left shoulder. As stated, I regard the plaintiff as an honest witness who gave accurate answers. In her affidavit of 26 November 2019, she has sworn as to the fact that, after she obtained her certificate as a nurse educator, she worked full-time for approximately five or six months performing sessional casual work. She struggled with her duties because of pain in her left shoulder until resigning in approximately April 2018 due to the pain in that shoulder and due to the fact that she was not coping. After a month, she initially worked full-time for Education Training and Employment Australia on a full-time basis. However, due to her left shoulder pain, she struggled to cope.
77 She reduced her working days to three and subsequently to two until she resigned in September 2018. She then was a casual worker at the Box Hill Institute, working 15 hours per week until December 2018. She did not work at all in January and February 2019 because of pain in the left shoulder. Since March 2019, she has been working in her present position for 15 hours per week. She has sworn that two days per week is the most that she can work in any form of employment, including that of a nurse educator. She uses the days when she is not working to recover from the increased left shoulder pain that she suffers as a result of the days at work. I accept this. When asked in re-examination whether she could work more than 15 hours per week, she answered that she could not – see T40.
78 Dr Brasier is an occupational physician who has gone to some lengths to comment upon the impact of injury upon working capacity and has expressed opinions based upon separate assessments of the left shoulder injury and the neck injury. In his repot of 24 June 2019, Dr Brasier has stated that, considering the plaintiff’s left shoulder injury alone, she has no capacity for a return to full-time work in her pre‑injury duties. She has no capacity for return to full-time unrestricted work as a Division 1 Registered Nurse. She has a realistic capacity to work 12 hours per week on a consistent, reliable and permanent basis without the risk of re‑injury. In so opining, he considered the plaintiff’s age, education, skills, work experience and the like. It is to be noted that this assessment relates solely to the left shoulder injury and that the number of working hours suggested as a maximum is in fact less than the number of hours actually being performed by the plaintiff.
79 Whilst Dr Esfahani, the plaintiff’s treating general practitioner, does not distinguish between her chronic neck and left shoulder pain, I note that he stated that she could work two shifts per week, with each shift being a maximum of seven hours, and should consider a half hour rest after every two hours of work. Again, the plaintiff is in fact performing more work than this. Whilst Dr Esfahani has not distinguished between the injuries, nevertheless this observation is of some use in indicating the plaintiff’s attitude towards work. She is working longer hours than those suggested by her general practitioner. Further, as set out above, the emphasis placed by the plaintiff in relation to work restrictions is upon her left shoulder
80 I appreciate that, to Mr Doig in May 2019, the plaintiff said that she was coping with 14 hours’ work per week, but found it difficult primarily because of her neck, rather than her left shoulder. This does not seem to fit in with the balance of the evidence or, indeed, with the balance of the report of Mr Doig, it concentrating mainly on the left shoulder. I would also point out that 20 hours’ work per week (being a figure mentioned by Dr Mutton, admittedly apparently being his minimum assessment) at $45 per hour, would result in an annual gross figure of $46,800. This would still represent a loss in excess of 40 per cent. There is some material to suggest that the plaintiff’s current rate of pay is in fact $42 per hour. Of course, were this so, she would satisfy the test by an even greater margin.
81 The bottom line is that I accept the plaintiff as a witness of truth and I accept that, as a result of her left shoulder injury, she is working to a maximum capacity of 15 hours per week and at a maximum rate of $45 per hour. If that be so, she has discharged the burden of proof in relation to loss of earning capacity. This is based solely upon her left shoulder injury.
82 In these circumstances, it is not necessary for me to consider the question of whether or not her claim, as based upon the neck injury, also succeeds. Certainly, Dr Brasier, considering the neck injury separately, commented that such injury would also limit her to 12 hours’ work per week in a position with numerous restrictions. The plaintiff’s evidence would strongly suggest that her left shoulder injury is the major problem, particularly in relation to working capacity, and I accept this. A specific ruling in relation to the neck injury is not required.
(ii) Pain and suffering
83 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and to various decisions of this Court.
84 In any event, it seems to me that the impact upon the plaintiff’s everyday life is sufficient to satisfy the statutory requirements. That is particularly so in relation to the injury to the left shoulder. She avoids using her left upper limb as much as possible. Her sleep has been affected and she is unable to lie on her left side. If she turns over during the night and knocks her left shoulder, she is awoken with pain. She has difficulty dressing and putting her arm into shirts and jumpers. She is no longer able to swim. She was an active member of a community group which engaged in traditional Persian dancing. This involves a lot of activity and lifting of the arms and hands, which she finds difficult. She is reliant upon her right hand for all housework and similar activities. Generally, she tries to do as much as she can with her right hand and has to pace herself when doing housework in order to manage the pain in her left shoulder.
85 That is a very brief summary of some of the matters to which she has attested. I would refer to her affidavits and evidence generally. The consequences of her injuries, and particularly those of the left shoulder injury, have had a very substantial adverse impact upon her wellbeing and her day to day activities.
Conclusion
86 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
87 I shall hear the parties as to any ancillary orders that are required.
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