Godfrey v Beaufort and Skipton Health Service
[2011] VCC 1511
•15 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03173
| JENNIFER LORRAINE GODFREY | Plaintiff |
| v | |
| BEAUFORT & SKIPTON HEALTH SERVICE | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 6 and 10 October 2011 |
| DATE OF JUDGMENT: | 15 November 2011 |
| CASE MAY BE CITED AS: | Godfrey v Beaufort & Skipton Health Service |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1511 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury – s.134AB(38)(a) and (b) – neck injury – left shoulder injury – pain and suffering only – relevant principles – whether “serious”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with | Ryan Carlisle Thomas |
| Mr A E A MacNab | ||
| For the Defendant | Mr R K Meldrum QC with | Wisewould Mahony Lawyers |
| Ms A M Magee | ||
| HIS HONOUR: |
Introduction
1 By way of Originating Motion filed on 22 July 2010, Jennifer Lorraine Godfrey (“the plaintiff”) seeks leave pursuant to s.134AB(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 neck and or left shoulder suffered by her on or about 14 November 2006 (“the injury”) arising out of or in the course of her employment with Beaufort & Skipton Health Service (“the defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(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 s.134AB(37) of the Act.[2]
[2] See S.134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:
“(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purpose of paragraph (a) is the neck and or left shoulder. It was common ground between the parties that for the purposes of any finding of “serious injury”, the neck and the left shoulder injuries could not be aggregated.[3]
[3] See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
[4] See S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[5] See Barwon Spinners (op. cit.) at paragraph [33]
[6] See S.134AB(38)(a) and (b) of the Act.
(a) “the injury” (whether it be the left shoulder or the neck injury) suffered by her arose out of, or in the course of or due to the nature of her employment with the defendant on or after 20 October 1999;[4] (b) “the injury” (whether it be the left shoulder or the neck injury) and the resultant impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5] (c) “the consequences” of the neck and or left shoulder impairment in relation to “pain and suffering” are, “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[6] This test is sometimes referred to as the “narrative test”. 8 In determining the application, the Court:
(a)
must make the assessment of serious injury at the time the application is heard;[7]
(b)
notes that it has been observed that the question of whether any injury satisfied the definition of “serious injury” is largely a matter of impression and value judgment;[8]
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[9]
[7] See S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[9] See S.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraphs [89]-[92]
The Issues
9 Senior Counsel for the defendant, in answer to a question from the Court, confirmed that essentially the defence of the defendant was whether any injuries relied on by the plaintiff satisfied the narrative test (that is to say, a “range” case).[10]
[10] See Transcript (“T”) 12, L20-22
The Background of the Plaintiff, her Injuries and Medical Treatment
10 The Court refers to the affidavits sworn by the plaintiff on 19 February 2010[11] (“the first affidavit”) and on 30 September 2011[12] (“the second affidavit”). Subject to some clarifications or expansion (to which I shall refer later), the plaintiff accepted that such affidavits were true and accurate.[13]
[11] See Exhibit C at page 20 of the Plaintiff’s Court Book (“PCB”)
[12] See Exhibit C at page 26A PCB
[13] See T 19, L7-9
11 By way of her first affidavit, the plaintiff gave the following evidence:
•
She is a fifty-six year old (born 19 May 1955) married woman with three independent children. She left school at Form 4, after which she worked for a while in a supermarket and then met her husband and had a family. In her mid-twenties, she did some casual work, working at times in a milk bar or in a roadhouse.
•
In 1997, she commenced employment with the defendant and trained as a personal care attendant at the Beaufort Hostel.
•
In December 1998, she suffered a low-back injury when working at the hostel. At that time she attended her general practitioner, Dr Woods, who referred her to the orthopaedic surgeon, Mr P Kierce.
•
She underwent an injection and had intermittent physiotherapy to manage her back pain.
•
She was able to continue her work with the defendant and in approximately 1999, she undertook further training to be a registered Nurse, Division 2, after which she worked at Beaufort Hospital.
•
She recalls another flare-up of low-back pain in early 2003 when she attended her then general practitioner, Dr Crouch, and she had further physiotherapy which “kept things under control”.
•
She was employed by the defendant as a Division 2 Nurse on a permanent part-time contract to work sixteen hours per week, although there was regular overtime and she often worked up to seventy-six hours per fortnight.
•
Around Easter 2005, she was on a fishing trip with her husband when she injured her left shoulder whilst trying to grab hold of a boat. She attended her general practitioner and was referred to the orthopaedic surgeon, Mr M Mitchell, who undertook the following treatment:
- an injection into the left shoulder in May 2005
- surgery on the left shoulder on 21 September 2005
- a further injection into the left shoulder on 16 December 2005.
•
She returned to work on full duties after the injection on 16 December 2005 and had a further operation with Mr Mitchell on her left shoulder on 20 June 2006.
•
She was off work for about three months after the operation on 20 June 2006 and returned to work in September 2006 performing her full duties on a base contract of sixteen hours per week, together with extra overtime. She considered she had a “good result” from the operation on 20 June 2006.
•
On 14 November 2006, she suffered injury to her left shoulder and neck during the course of her employment with the defendant. She describes the occurrence of such injuries in the following terms:
“Then on 14 November 2006, I was pushing a lifting hoist back to a storeroom at the hospital. I had to push the hoist beside a metal divider between the carpet floor and the adjoining vinyl floor surface. … On this occasion as I was pushing the hoist, the castor wheels got jammed, causing me to wrench my left shoulder and neck. …
Following the incident, I had immediate pain in my left shoulder
and up into my neck. … .”[14]
[14] See Exhibit C at pages 22-23 PCB
•
A couple of days later she attended her then general practitioner, Dr Livingston, who referred her off for physiotherapy and prescribed painkillers.
•
On 18 December 2006, she attempted to return to work with the defendant on full duties. She ceased light duties on 24 February 2007 and then had a further and final attempt of light duties between 2 and 13 March 2007. She has not resumed employment with the defendant.
•
In early January 2007, she underwent a CT scan of her neck which she understood to show an injury at the C6-7 level. A scan of her left shoulder at the same time revealed, she understands, a tear of her left shoulder tendon.
•
On 3 April 2007, she underwent an MRI scan of her neck and on leaving the hospital, she jarred her low-back, causing a flare-up of low-back pain which has now settled down to the way it was after the 1998 low-back injury.
•
On 27 December 2007, Mr Mitchell performed an arthroscopic decompression and open cuff repair of the left shoulder.
•
She was continuing to have physiotherapy on her left shoulder and neck and had last seen Mr Mitchell in March 2008.
•
She continues to attend Dr Livingston at least once a month for WorkCover certificates and prescription medication consisting of Tramal, Valium and Mobic, which she takes on a daily basis.
•
She attends for physiotherapy about once per month and also has regular massage therapy about once a fortnight.
•
She has continuous pain between her shoulders up into the neck and in particular, into the left shoulder. The medication does not “cure” the pain but takes the “edge” off it.
•
Before she got “hurt”, she enjoyed playing squash and netball and was still playing in organised competitions which she has now given up.
•
She lives on three-quarters of an acre and had a “beautiful garden” where she spent much time. She cannot do very much in the garden now and has trouble doing housework, with some days worse than others. In particular, she has difficulty lifting her left arm above horizontal and difficulty lifting her left arm above shoulder height, and has to modify how she hangs out washing.
•
She can drive a car but this is difficult. Although she still goes shopping, she generally only gets a few things at a time or gets her husband to come with her to help with the heavier items.
•
Because of the pain of her injuries, she has “at times” felt quite frustrated and upset, which has put some strain on her marriage.
•
She continued to receive weekly payments of compensation to 12 July 2009.
• In relation to her day-to-day activities, the plaintiff states: “…My husband runs a milk bar that is located about half a kilometre from our home. I regularly go to the milk bar and visit my husband. I do not work at the milk bar but occasionally I assist at the milk bar by doing some baking and marking (sic) sandwiches. For example, if my husband needs to go to the bathroom, then I will mind the shop. We have a lady who is employed to work over the lunch period. If I was not injured, I would be working in the milk bar. My husband had been a truck driver, but he bought the milk bar to be closer to home to help me and also hoping that it might allow me to do some work. The problem I have is that I cannot reach, carry items, or carry out repetitive tasks with my left shoulder, which make[s] it very difficult for me to do much at all.”[15]
(sic)
[15] See Exhibit C at page 26 PCB
12 By way of her second affidavit, the plaintiff gave the following evidence:
•
She continues to suffer from neck pain on a daily basis with the pain coming and going throughout the day depending on what activities she undertakes. Some days are worse than others.
•
Her neck movement is restricted and she has difficulty keeping her head in the same position for long periods of time, such as sitting in front of a computer or reading – sudden movements of her head or neck often cause sharp pain.
•
She continues to suffer from left shoulder pain and has difficulty using her left arm overhead. In particular, she suffers from increased pain if she has used her left arm repetitively or for a prolonged period.
• Her ability to push, pull or lift with her left arm is restricted. •
She has difficulty with sleeping and most nights is woken up on numerous occasions by neck pain and sometimes is woken up by left shoulder pain, particularly if she rolls onto her left side.
• She takes Tramal and Mobic. •
She suffers from backache from time to time but it is not as severe and as constant as her neck and shoulder pain.
• In relation to the milk bar, she states: “At times I try to help my husband with the milk bar that he runs. However, there is no way, given the extent of my symptoms, that I could get back doing the sort of work that I was doing before I suffered injury in 2006. … .”[16]
[16] See Exhibit C at page 26B PCB
13 In her viva voce evidence, counsel for the plaintiff queried her as to how she was “travelling” after her return to work in September 2006 (that is, after the second left shoulder surgery) and the injury on 14 November 2006. The plaintiff gave evidence:
• That she had intermittent pain in the left shoulder. •
She was taking 100 milligrams of Tramadol twice a day and Mobic once a day.
• That she had a “good result” from the second operation. • She was able to do most of her duties as she could do beforehand. • She was continuing to have physiotherapy about once a month or so. •
She could manage all of her duties but was restricted from lifting or doing anything overstretching with her left shoulder.
•
She was “slightly restricted” in performing some of her home duties such as sweeping, but that was more related to her low-back than to her shoulder.
•
She ceased playing squash and netball and walking a lot after the back injury in 1998.
• She had “got back to doing most of my gardening duties except digging”. •
She went freshwater fishing out of a boat or off a bank with her husband every fortnight or so.
14 The plaintiff gave the following evidence in relation to her work as a nurse:
Q: “Now, just in terms of the work as a nurse, what was your attitude
to it?---A: I loved it. Q: … Do you believe you can get back to it?--- A: No. Q: How does that affect you?--- A: It upsets me greatly. Q: Why?--- A: Because I’d unfortunately left it late in life to do nursing training and it was something I always wanted to do, so I put a lot aside to do it and I do miss it.”[17] [17] See T 16, L6-14
15 The plaintiff also gave evidence as to her present capacity to perform gardening:
Q: “How are you with gardening now?--- A: Very, very limited. Q: What can you do?--- A: Pull the odd weed and – yeah. HIS HONOUR:
Q: Prior to this incident in November ’06?--- A: Yeah. Q: How often would you be out in your garden?--- A: Every day. Q: Roughly how long every day?--- A: Anything up to two or three hours some days, yeah. Q: Since all this has occurred, after November ’06 and I think it’s the
third bout of surgery, how often are you out there now?---A: I’M lucky to spend two hours a month.”[18] [18] See T 16, L24 – T 17, L2
16 The plaintiff gave evidence that she does not do much fishing anymore because her husband is “tied up with the shop”. However, she did not believe she could cope with fishing because of her sore neck.
17 In relation to the milk bar, the plaintiff gave the following evidence:
•
The milk bar was “acquired” at the end of 2008 and she is a partner with her husband.
• It is open seven days a week from 7.00 am to 7.00 pm. •
Her husband and a trainee work at the milk bar, and a part-time girl comes in to assist at lunch (sometimes two girls).
•
Her husband is at the milk bar 7.00 am to 7.00 pm most days of the week.
•
She goes to the milk bar and spends “a lot of time there”. On average she would spend five to eight hours a day and attend five days or sometimes six days a week.
•
In particular, the plaintiff gave the following evidence in relation to her present activities at the milk bar:
Q: “Do you go there?--- A: I do. I spend a lot of time there. Q: Say now, how much time would you spend there?--- A: On an average of probably five to eight hours a day. Q: How many days per week?--- A: Probably five days. Sometimes six. Q: What determines whether or not you go down there?--- A: How well I feel, whether I’m very lonely at home, so I’ll
spend time with my husband.Q: What sort of tasks do you do when you’re there – or do
you?---A:
Yes. I help out with serving customers. I can make sandwiches and stuff like that. And I also do quite a bit of baking to help.
Q: What sort of things do you bake?--- A: Just slices. Some – things that are easy to make. … Q:
How does it affect you, working there, in terms of your
physical situation?—A:
Physically I’m able to stop if I’m tired, if my neck is aching or my shoulder is aching. Mentally, it has given me an enormous boost to my confidence.
Q: If you do feel that your neck is aching or your shoulder is
aching, what do you do?---A: I stop and go for a walk or do whatever I need to to to
relieve that, yeah.Q: Are there any tasks that you can’t do or find difficult?--- A:
Yes. I don’t lift anything heavy and I can’t sit at the computer or at the desk and do book work, like I’d like to, because of the pain in my neck, and the headaches.
Q: In terms of lifting things that are heavy, what sort of things
can’t you do?---A: Any of the crates of milk or the large boxes of lollies and
stuff like that.Q: Who does that work?--- A: Either the trainee, the other staff or my husband. Q: You said you can’t sit at the computer for too long. Why
would you be sitting at the computer?---A: To do book work, which I’d like to be able to do. Q: How long are you able to sit at the computer for?--- A: I’d probably be lucky to do half an hour a day. Q: What’s the problem with half an hour?--- A: My back seizes up and give me more pain.”[19] [19] See T 17, L20 – T 18, L29
18 The plaintiff also gave evidence that the milk bar was bought in 2008 because her husband was sick of truck driving and it would be good for him and it would possibly give her an alternative work source.
19 Prior to the injury on 14 November 2006, the plaintiff had undergone the following radiological studies in relation to her left shoulder:
(a)
A plain x-ray of the left shoulder on 20 July 2005.[20] The findings of such x-ray were:
[20] See Exhibit E at page 56 PCB
“Normal AC and glenohumeral joints. No subacromial bony
stenosis or rotator cuff calcification.”
The report concluded:
“No evidence of a supraspinatus tear, with changes in keeping
with post surgical repair only.”
(b)
An MRI scan of the left shoulder on 6 April 2006.[21] The conclusion of such scan is:
[21] See Exhibit E at page 58 PCB
“1 Florid acromioclavicular joint degenerative arthropathy,
associated with synovitis and capsular distension.2 Small subacromial/subdeltoid bursal effusion. 3
Small 3mm transverse low grade articular surface tear involving the anterior insertional fibres of the supraspinatus tendon.”
(c)
Ultrasound on the left shoulder on 3 August 2006.[22] The conclusion of such ultrasound was:
[22] See Exhibit E at page 60 PCB
“No evidence of a supraspinatus tear, with changes in keeping
with post surgical repair only.
Fluid in the synovial sheath of the long head of biceps tendon may
represent tenosynovitis.”
20 After the injury, the plaintiff had the following radiological studies of her left shoulder and neck:
(a)
MRI scan of the left shoulder on 8 August 2007 (on referral from Mr Mitchell).[23] The conclusion of such scan was:
[23] See Exhibit E at page 66 PCB
“1
Small full thickness tear at the insertion of the middle third of the supraspinatus tendon. The anterior supraspinatus repair appears intact.
2
Minor intrasubstance tear of the infraspinatus myotendinous junction.
3 Normal subscapularis and long head of biceps tendons.”
(b)
Ultrasound of the left shoulder on 19 February 2008.[24] The conclusion of such ultrasound is:
[24] See Exhibit E at page 67 PCB
“Intact supraspinatus repair. No tendon or bursal pathology
identified.”
(c) CT scan of the cervical and thoracic spine on 10 January 2007.[25] The conclusion of such scan is: [25] See Exhibit E at page 61 PCB
“Focal disc protrusion has a sub ligamentous appearance at C6/7 extending posterosuperiorly behind C6 vertebra. This is causing early central canal narrowing to 7mm. Further assessment of the cord for myelopathy could be made with MRI. No other plain CT evidence to suggest neurological involvement. Minor degenerative changes only.”
(d)
MRI scan of the cervical spine on 3 April 2007.[26] The findings of such scan are:
“The cervical cord and imaged posterior fossa structures have a
normal signal.At C6/7, apparently calcified posterior longitudinal ligament and disc bulge cause moderate narrowing of the central canal, touching and slightly deforming the anterior cord at this level. No significant neural exit foraminal stenosis.”
[26] See Exhibit E at page 63 PCB
21 It is to be noted that the plaintiff also underwent a CT scan of the lumbar spine on 12 April 2007 which concluded that she had chronic ununited bilateral L5 par’s defect and a minor L5 anterolisthesis. There was no evidence of neural impingement.
22 The plaintiff relies on medical reports from her treating general practitioner, Dr Neil Livingston, dated 4 August 2007,[27] 19 December 2009[28] and 14 September 2011.[29]
[27] See Exhibit E at page 68 PCB
[28] See Exhibit F at page 69 PCB
[29] See Exhibit F at page 69A PCB
23 Dr Livingston describes the plaintiff to be suffering from three musculoskeletal conditions – left shoulder pain and reduced movement, low-back pain related to a disc injury occurring in April 2007 and a cervical neck injury occurring in a work injury in November 2006. In August 2007, he was of the opinion that “as a result of these three problems”, the plaintiff had chronic pain and was unable to work in her former position as a Division 2 Nurse.
24 In his last report, Dr Livingston notes that the initial injury to the back of the plaintiff occurred at work in 1998 and that the incident in November 2006 “most likely” worsened a pre-existing neck problem and left shoulder problem.
25 In answer to a series of questions from the solicitor for the plaintiff,[30] Dr Livingston considered that both the left shoulder injury and the neck injury would each independently preclude her from returning to work as a Division 2 Nurse and would also impact on her ability to play sport, perform heavy domestic duties at home and to garden.
[30] See Exhibit F at page 69C PCB
26 The plaintiff also relies on reports from the physiotherapists, Mr Simon Ellis, dated 7 September 2007[31] and Ms Courtney Weybury, dated 25 November 2009.[32]
[31] See Exhibit E at page 72 PCB
[32] See Exhibit E at page 73 PCB
27 The report of Mr Ellis notes that the plaintiff attended for six weeks up to 27 July 2007 to undergo a Pilates program to assist in the rehabilitation of ongoing low-back pain. In her report, Ms Weybury notes that the plaintiff has been attending Lake Health Physiotherapy since 2002 for “hands on treatment and Clinical Pilates for her low-back pain, left shoulder and neck”. Ms Weybury considers the plaintiff unable to return to nursing as a result of problems in her lumbar spine and left shoulder.
28 In particular, the plaintiff relies on a report from the physiotherapist, Mr S Doddrell, who initially saw her on 21 November 2006. On that day, the plaintiff described the incident on 14 November 2006, after which she had “immediate pain in her neck”. Seemingly, Mr Doddrell treated the plaintiff for her low-back pain and neck pain and considered that she had no capacity for pre-injury duties.
29 The plaintiff also relies on the report from the treating orthopaedic surgeon, Mr David Mitchell, dated 15 March 2010.[33] Of course, Mr Mitchell had been treating the plaintiff in relation to her left shoulder injury prior to the incident on 14 November 2006.
[33] See Exhibit G at page 38 Defendants’ Court Book (“DCB”)
30 Mr Mitchell notes that he initially obtained a history that the plaintiff had been involved in a boating incident on 28 March 2005 when she hyperextended and abducted her left shoulder. After undergoing a subacromial injection which did not assist her, she underwent surgery on 21 September 2005. Mr Mitchell notes that from 31 October 2005, the plaintiff was “struggling” and that she missed some time off work in February 2006, ultimately resulting in shoulder surgery on 19 June 2006, at which time the distal clavicle was excised and the rotator cuff repaired.
31 Mr Mitchell notes that the post-operative course after the second procedure (19 June 2006) was “complicated” by the plaintiff stumbling approximately six weeks post-surgery, causing an ultrasound to be undertaken which revealed the recent surgical repair. Mr Mitchell notes that as at 15 September 2006, the shoulder seemed to be “back on track”.
32 The plaintiff was again referred to Mr Mitchell in early 2007 when she was complaining both of neck and left shoulder pain, together with weak grip strength.
33 Mr Mitchell arranged for the plaintiff to undergo a new MRI of the left shoulder on 8 August 2007. Mr Mitchell states:
“… a small full thickness tear at the insertion of the middle third of supraspinatus and a minor intrasubstance tear of the infraspinatus, otherwise it seemed intact. With Workcover’s approval, she underwent further surgery to her shoulder on 27th September 2007, at which point a tear in the junction of supra and infraspinatus on the greater tuberosity was noted, and repaired. In my notes, I have regarded this as a necrotic area of tendon. Having reviewed the photographs taken at the time, it is hard to be sure as to the nature of this, whether it is further wear and tear, or whether there is any intrinsic tendon failure.
Specifically answering your questions:
By way of diagnosis, it needs to be labelled rotator cuff tear. There is then some dispute as to which pathological process was occurring, whether there was an actual torn part of the tendon caused by the injury, or another part of the tendon giving way because of intrinsic failure. In many respects, the distinction is unnecessary, as the Workcover provisions cover both injuries occurring at work, and conditions exacerbated by a patient’s work.
In my final correspondence of April 2008, I felt we should downgrade our expectations, and I had felt that it was unlikely that she would be able to return to active nursing duties. This is because the nature of the work involved repetitive and sometimes prolonged lifting, pushing and pulling. Also, the nature of some patients is that an unexpected sharp force is experienced through the shoulder, and despite the best of intentions of hospitals to introduce lifting machines, it is impossible to achieve this 100% of the time.
…
Regarding the physical component of her injury, it is hard to be sure of her current ability, but my impression was that she would never resume full time duties in her same occupation, and I believe the incapacity would be permanent. The ability of her to undertake similar employment on a part-time basis also seems low, and it would be most appropriate if she were able to get a related occupation in the future, rather than fully re-training.
…
Shoulder pathology is quite debilitating not only from a work point of view, but also social, domestic and recreational activities. Even dressing will cause her discomfort, cleaning her own house may well be close to impossible.
At this stage, I don’t have any future treatment planned, but it may yet be that the rotator cuff tears further, and she develop a rotator cuff arthropathy. If that does occur, a shoulder replacement sometimes is required, but only achieves perhaps 50% of normal shoulder function.
I have little doubt that she has a serious problem with her shoulder, the injury occurring at work pushed her shoulder over the edge, and in so, clearly is a serious injury.”[34]
(my emphasis)
[34] See Exhibit G at pages 39-40 DCB
Medico-Legal Reports
34 The solicitors for the plaintiff arranged for her to be examined by the following doctors:
[35] See report of same date in Exhibit F at page 75 PCB
[36] See Exhibit F at page 81 PCB
[37] See report dated 26 August 2010 in Exhibit F at page 84 PCB
[38] See undated report in Exhibit F at page 93A PCB
(a) The orthopaedic surgeon, Mr S F Schofield, seemingly on 18 February 2011.[35] Mr Schofield also gave a supplementary report dated 1 August 2011.[36] (b) The occupational physician, Dr C Castle, on 14 April 2010[37] and on 14 September 2011.[38] 35 Mr Schofield obtained a history, in part, that the plaintiff was naturally right- handed and was currently working on a part-time basis in a milk bar which is managed by her husband. He also obtained the history that when pushing the lifting hoist on 14 November 2006, she felt the acute onset of pain in her neck and left shoulder. Mr Schofield had available to him a variety of earlier medical reports and various radiological examinations.
36 He was of the opinion that the boating incident in or about 2005 injured the rotator cuff and required two bouts of surgery, after which she had a “good result” and was able to resume work as a Division 2 Nurse in September 2006. He was of the opinion that the injury in November 2006 caused a recurrence of that tear, necessitating further surgery. Mr Schofield was also of the opinion that the incident in November 2006 caused a “disc prolapse at C6-7” although he considered that further radiological studies were necessary of the neck. He also considered that the incident on that day caused a recurrence of pre-existing but non-symptomatic degenerative changes and spondylolisthesis of the lumbosacral spine.
37 In his later report, Mr Schofield was of the opinion that the neck injury and/or the left shoulder injury precluded the plaintiff from performing her pre-injury duties for the foreseeable future and furthermore, each of the injuries were likely to restrict her in relation to social, domestic and or recreational activities for the foreseeable future.
38 When initially seen by Dr C Castle (on 14 April 2010), he obtained a history from the plaintiff, in part, that she sometimes helped in the milk bar and did some banking. He also obtained the history of the longstanding low-back pain and the earlier problems with her left shoulder. Dr Castle diagnosed the plaintiff to be suffering neck pain due to an intervertebral disc lesion at C5-6, left shoulder pain due to bursitis, impingement and tears of the supraspinatus, together with back pain due to an intervertebral disc lesion at L4-5.
39 When recently seen on 14 September 2011, the plaintiff gave a history to Dr Castle that she does “a bit more work at the shop” which may be for about four hours a day, involving some baking and depending on demand.
40 Physical examination at that time was similar to the previous occasions and Dr Castle maintained his original diagnoses. He considered that the plaintiff was unfit to perform her pre-injury duties as a result of each of the injuries to her neck, left shoulder and back.
41 Dr Castle considered the plaintiff to have some capacity to perform suitable employment for a maximum of about ten to twelve hours per week and this is well reflected in the work she is doing at the milk bar.
42 The plaintiff also relies on the following medical reports obtained by the defendant or its agents:
(a)
medical report from her general practitioner, Dr William Crouch, dated 12 April 2005;[39]
(b)
report from orthopaedic surgeon, Mr Paul Kierce, dated 3 December 2007;[40]
(c)
report of the general surgeon, Mr Peter Scott, dated 9 December 2007;[41] and
(d)
report of the occupational physician, Dr David Elder, dated 9 September 2008.[42]
[39] See Exhibit G at page 95 PCB
[40] See Exhibit G at page 96 PCB
[41] See Exhibit G at page 105 PCB
[42] See Exhibit G at page 112 PCB
43 Dr Crouch notes that as at 2005, he had been treating the plaintiff for a number of years but was not treating the plaintiff at the time of her low-back injury in 1998. He notes that she was referred at that time to the orthopaedic surgeon, Mr Paul Kierce. As at 2005, Dr Crouch considered the plaintiff to be capable of carrying out her normal duties as a Registered Nurse, Division 2, with a “no lifting” policy being practised.
44 Mr Kierce examined the plaintiff on 28 November 2007, for the agent of the defendant to make an assessment of permanent impairment of the low-back. It is to be noted that examination at that time did reveal restricted neck and left shoulder movements. Furthermore, the plaintiff gave a history of suffering injury to her neck and left shoulder as a result of the incident on 14 November 2006.
45 Mr Scott examined the plaintiff on behalf of the agent of the defendant on 4 December 2007 in relation to the left shoulder and neck injuries. At that time, he obtained a history that after the second bout of surgery to her left shoulder in September 2006, she made “a good recovery” and was able to return to the workforce without restrictions. Furthermore, he obtained a history that when pushing the lifting machine on 14 November 2006, she jarred her left shoulder and injured her neck.
46 In his report, Mr Scott recommended that liability be accepted for the neck injury and what he termed a “new injury” to the left shoulder as a result of the incident which occurred on 14 November 2006. In particular, Mr Scott stated:
“I believe that the incident in question which occurred on the 14/11/2006 should be accepted as causing a new injury to the left shoulder from which [s]he had previously recovered following two previous surgical procedures (June 2005 and September 2006).
In addition, she has developed neck ache and stiffness and aggravation of underlying well established degenerative arthritis in the cervical spine where a CT scan on the 10/01/2007 and an MRI study on the 03/04/2007 showed evidence of multilevel disc-degenerative processes with facet joint arthropathy and C6/7 disc prolapse.
… .”[43]
[43] See Exhibit G at page 109 PCB
47 Dr David Elder examined the plaintiff on behalf of the agent of the defendant in order to make an assessment of any permanent impairment of the lumbar spine, neck and left shoulder for the purposes of s.91 of the Act. He examined the plaintiff on 9 September 2008. In such circumstances, Dr Elder was called upon to make an assessment for “accepted” injuries to the neck and left shoulder. Notwithstanding, Dr Elder was of the opinion that the plaintiff had mechanical neck pain with no clinical evidence of radiculopathy and also residual left shoulder dysfunction secondary to open rotator cuff repair relevant to the accepted left shoulder injury.
48 It is convenient to refer to the medico-legal examinations relied on by the defendant which consist of:
(a)
examination by the orthopaedic surgeon, Mr Rodney Simm, on 16 April 2008;[44]
(b)
examination by the rheumatologist, Dr K J Fraser, on 16 June 2010[45] and on 18 July 2011.[46]
[44] See report dated 16 April 2008 in Exhibit 1 at page 3 DCB
[45] See report dated 22 June 2010 in Exhibit 1 at page 19 DCB
[46] See report dated 21 July 2011 at page 22 DCB
49 Mr Simm obtained a full history and in particular, obtained a history that after the second left shoulder operation in 2006, the plaintiff was off work for approximately three months, during which time she “improved greatly” and returned to normal work without restrictions. He also noted that during examination that she “co-operated with the medical examination and displayed a normal affect”. Mr Simm had available the various radiological investigations.
50 Mr Simm was of the opinion that the incident on 14 November 2006 was an aggravation of the surgically treated pre-existing left shoulder pathology. He notes that despite undergoing further surgery, she has reported symptoms of chronic pain involving the left side of the neck and the left shoulder since then. Furthermore, he is of the opinion that she had signs of an unresolved soft- tissue injury to her neck which may relate in part to aggravation of minor degenerative disc pathology. He did consider that her level of pain and reported levels of disability were greater than one would expect for the known pathology.
51 He considered her unfit to perform her pre-existing duties (most probably as a result of the neck and shoulder injury). He comments that he suspects that she was likely to have problems with her left shoulder even in the absence of the work injury on 14 November 2006. He goes on to state:
“… however it is a matter of record that she strained and jarred her left shoulder and neck at that time and this seems to have led to further problems which did not improve following a third left shoulder operation.”[47]
[47] See Exhibit 1 at page 8
52 When initially seen by Dr Fraser on 16 June 2010, he was of the opinion that the plaintiff had not suffered any work-related injury to either her neck or left shoulder. In particular, he was of the opinion that the incident at work on 14 November 2006 neither caused nor aggravated any degenerative changes at C6-7. Furthermore, he considered it unlikely that the work-related incident on 14 November 2006 much altered her left shoulder condition, if at all. In particular, Dr Fraser stated:
“It seems to me that she would probably eventually have developed further symptoms regardless of the work-related incident. However, there can of course be no absolute certainty about such matters.
In any event, her condition has not stabilised and there is some permanent impairment such that she will remain unfit for work requiring any heavy lifting (› 5g) or any overhead, rapidly repetitive or forceful use of the left arm. Within the bounds of such restrictions I consider that she is fit for suitable employment.
I do not consider that there is any incapacity in relation to her neck.
… .”[48][48] See Exhibit 1 at page 21 DCB
53 When recently seen on 18 July 2011, Dr Fraser obtained a history that she is working in the family milk bar five to six hours per day “if I am lucky, doing what I can … feeling useful … .” Movements of the cervical spine were restricted, as were left shoulder movements particularly abduction and flexion.
54 Dr Fraser reported that he had similar conclusions as stated in his first report and in particular states:
“The worker has age-related degenerative changes in the cervical spine and I see no basis for suggesting that they have in any way been caused by the incident at work on 14 November 2006 or that there has been any lasting aggravation as a result thereof. Again, I do not consider that there is any significant functional incapacity in respect of her neck.
The restrictions of left shoulder movements are not uncommon following rotator cuff lesions and related surgery. Again, degenerative changes have been a contributing factor and I am not convinced that the work- related incident has resulted in any more incapacity than she would have had as a result of the previous injury.
…
She remains fit for work not requiring heavy lifting (on her own admission less than 10 kg) or any overhead, rapidly repetitive or forceful use of the left arm. As noted previously, she is already working part-time in the family milk bar business and is fit to continue doing so.
… .”[49]
[49] See Exhibit 1 at page 21 DCB
55 The defendant also relies on a report from Mr Peter Rice, a manipulative therapist, dated 28 February 2000.[50] In that report, there is reference to him treating the plaintiff for her back injury which occurred in 1998 but also there is reference to a cervical problem involving headaches, neck aching and upper dorsal pain.
[50] See Exhibit 3
56 The defendant also tendered a bundle of Certificates of Capacity running from 15 November 2006 to 24 March 2010.[51] Such Certificates have been given by the plaintiff’s general practitioner, Dr Neil Livingston.
[51] See Exhibit 2
The Cross-Examination of the Plaintiff
57 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
She ceased playing squash and netball before the injury in November 2006. For most of the time between the injury to her back in 1998 and up to the injury in November 2006, she was taking the same dose of Tramadol and Mobic as she has been taking since the injury on 14 November 2006.
•
Although not initially recording any earlier difficulties with her neck, she did recall when prompted that she attended a Mr Peter Rice, initially for her back, but later for some manipulation of her neck.
•
After recalling such treatment, she accepted that she suffered severe headaches and significant neck discomfort.
•
It was put to her that on 9 August 2003, she attended her local doctor complaining of the sudden onset of left-sided neck pain when performing a simple task at home. In particular, the doctor noted that she was “quite immobilised by severe pain in the left upper neck region”. The plaintiff did not recall such incident.
•
She would be able to go fishing with her husband in a boat if he had the time.
•
Since her back injury in 1998, her husband has to do most of the sweeping, mopping and vacuuming around the house because of her low-back injury.
•
She accepted that after the boating injury and surgery, she was “slightly restricted” in her left shoulder. Furthermore, she has experienced “slight pain” in the left shoulder from the time of her initial injury to that area.
•
She and her husband took possession of the milk bar in October 2008, which consisted of purchasing a closed shop.
•
She and her husband entered an informal partnership and obtained an Australian Business Number (ABN).
•
She accepted that most days she goes to the milk bar with her husband at about 7.00 am and most days she and her husband would go home at about 7.00 pm, but she does not necessarily remain at the milk bar all day or every day.
•
She assists in the preparation of sandwiches, cutting up various vegetables, baking varies objects, works on the computer and generally tries to help where needed.
•
She does not go seven days a week like her husband “because my body would not allow me to do with the pain in my body”.[52]
•
She normally takes Tramadol twice a day and on occasion will take Panadol when she has headaches.
•
In 2008, she underwent a medication update course which would permit her to prescribe medications as a Division 2 Nurse.
•
At that stage, she was “still in hope of being able to get back to work as a Division 2 Nurse”.[53]
•
Although she believed at that point she could not return to working, she hoped to improve to the point where she could resume.[54]
•
Since November 2006, she considers that her neck is the most painful, limiting what she can do, and after that it is more likely the left shoulder which is pretty close to the low-back.
•
The plaintiff accepted that the milk bar, for the year ending 2008, had total sales of $93,000 with a loss of $18,526; for the year ending 30 June 2009, total sales of $406,536 with a gross profit of $98,000 and a net profit of $50,861; and for the year ending 30 June 2009, total sales of $529,000 with a gross profit of $105,000 and a net profit of $43,000.
•
She accepted that one of the employee’s wages were not claimed as expense in the business. That particular employee was paid out of private savings.
•
She accepted that if she worked in the milk bar continuously for twelve hours a day it would be fairly demanding on her arms, back and her neck. The plaintiff commented that she does not work “continuously” and she can choose to do what she needs to do.
•
She asserted that at maybe on one or two occasions that she has ever gone to the milk bar at 7.00 am and stayed there until 7.00 pm without leaving.
•
The plaintiff was shown her Claim for Compensation dated 8 February 2008 wherein it is recorded a neck strain occurring on 9 August 2003. The plaintiff denied that it was her handwriting and again, consistent with her earlier evidence, said she did not recall any neck strain on 9 August 2003.
•
She accepts that she is doing more work in the milk bar now than she did in the past because she feels a bit better. She accepted that the original back injury reduced the full range of her gardening potential.
•
Her sleeping patterns were interfered from when she first injured her left shoulder.
•
When shown various medical certificates running from 18 December 2006 through to 1 December 2007 which only made reference to her neck, the plaintiff accepted that the problem throughout that time was mainly in the neck although she had shoulder pain.
[52] See T 42, L20-21
[53] T 58, L5-6
[54] T 59, L2-3
58 When re-examined, the plaintiff gave the following pertinent evidence:
• When she does not work at the shop, her husband does not arrange for a replacement for her as it is not necessary for what she does. 59 At the end of her evidence, the Court made the following inquiry:
HIS HONOUR:
Q: “I just want to clarify in my mind at least, the November 2006, the
hoist episode?---A: Yes. Q: If I call it that, you know what I am referring to?--- A: Yes. Q: As I understand your evidence, you had this back injury going
back quite some years ago prior to that, the low-back injury?---A: The low, yes – yes, your Honour. Q:
Indeed, as I understand the flavour of your evidence, you have never totally got over that, there is always a degree of problem with your back?---
A: Yes, that’s right. Q:
What I am not totally clear about is when you first suffered your left shoulder injury in Easter 2005 on the boating episode, if I may call it that?---
A: Yes. Q: I want to know in that period leading up to November 2006, what
was your left shoulder like during that period?---A: After the first operation? Q: Yes. A: Yes, it was quite good after that three-month period. Q: Yes?--- A: Very rarely did it inhibit me from doing anything. Q: I think the operation we were told is 20 June 2006?--- A: Yes. Q: Did you return to work in September 2006?--- A: Yes, that’s right. Q: So September/October leading into November 2006, the left
shoulder is what?---A: I was doing my full duties so it was almost back to normal apart
from some high work or heavy weights.Q: You suffered injury to your left shoulder in November 2006, the
pushing, the hoist?---A: On the hoist, yes. Q: What was your shoulder like after the hoist episode?--- A: Very sore. Q: What is it like now?--- A: It has settled quite a bit. It’s still quite sore if I lift or put my hand
up and do overhead work.Q: Right. In relation to your neck, what is it like now?- A: At the moment it is very sore for sitting in a car. It does restrict a
lot of things I do and it’s very sore.”[55][55] See T 117, L22 – T 118, L24
Analysis of the Evidence
60 The plaintiff is a fifty-six-year-old married woman who assists her husband in running a milk bar business in Beaufort.
61 The premises where the milk bar business is conducted was purchased in late 2008.
62 There is no issue that in 1997, the plaintiff commenced employment with the defendant and trained as a personal care attendant at the Beaufort Hostel. In or about December 1998, she suffered a low-back injury when working at the hostel, requiring reasonably intense treatment, after which she had continued to experience low-back symptoms which have impacted on various aspects of her life.
63 In approximately 1999, she undertook further training to be a Registered Nurse, Division 2, and made plain several times during her evidence that such work was something that she had wished to do for many years and gave her great enjoyment.
64 There is also no issue that on 14 November 2006, the plaintiff suffered some injury to her left shoulder and neck during the course of her employment with the defendant. The defendant has accepted such injuries.
65 Earlier, around Easter 2005, she had suffered injury to her left shoulder when trying to grab hold of a boat. She came under the care of the orthopaedic surgeon, Mr Mitchell, who performed surgery on the left shoulder on 21 September 2005 and 20 June 2006. Furthermore, he injected the left shoulder in May 2005 and on 16 December 2005.
66 She was off work for about three months after the operation on 21 June 2006 and returned to work in September 2006, having made a reasonable recovery. In particular, I find that the plaintiff returned to work performing normal duties with only minor pain symptoms in the left shoulder and relatively minor restrictions using her left arm above her shoulder.
67 After the incident on 14 November 2006, she again came under the care of Mr Mitchell, who had noted that as at 15 September 2006, the shoulder of the plaintiff seemed to be “back on track”. When seen by Mr Mitchell in early 2007, he arranged a further MRI scan of the left shoulder, before proceeding to further surgery on 27 September 2007.
68 In particular, Mr Mitchell diagnosed a rotator cuff tear which was either caused or aggravated by the incident on 14 November 2006. As Mr Mitchell stated:
“I have little doubt that she has a serious problem with her shoulder, the injury occurring at work pushed her shoulder over the edge, and in so clearly is a serious injury.”[56]
[56] See Exhibit G at pages 39-40 DCB
69 The defendant or its agent arranged for the general surgeon, Mr Scott, to examine the plaintiff on 4 December 2007 in order to determine whether liability should be accepted in relation to the incident on 14 November 2006. On the basis of the history given to him and clinical examination, together with radiological studies, Mr Scott opined that the incident in question which occurred on 14 November 2006 should be –
“… accepted as causing a new injury to the left shoulder from which she had previously recovered following two previous surgical procedures … .”[57]
[57] See Exhibit G at page 109 PCB
70 I find that the plaintiff did suffer a left shoulder injury arising out of or in the course of her employment on 14 November 2006. Such injury involved a tear to the rotator cuff which was either caused or aggravated by such incident.
71 Similarly, I accept that the plaintiff suffered a neck injury arising out of her employment on the same day. Again, I refer to the evidence of Mr Scott, who stated, in relation to the neck:
“In addition, she has developed neck ache and stiffness and aggravation of underlying well established degenerative arthritis in the cervical spine where a CT scan on the 10/01/2007 and an MRI study on the 03/04/2007 showed evidence of multilevel disc-degenerative processes with facet joint arthropathy and C6/7 disc prolapse.”[58]
[58] See Exhibit G at page 109 PCB
72 I do not consider that the opinions of Dr Fraser are of much assistance to the Court given that the defendant has accepted that the plaintiff suffered a neck and left shoulder injury arising out of the employment, no doubt based at least on the opinion of Mr Scott. Furthermore, Mr Simm seemingly accepts that it is –
“a matter of record that she strained and jarred her left shoulder and neck at that time and this seems to have led to further problems which did not improve following a third left shoulder operation.”[59]
[59] See Exhibit 1 at page 8
73 Essentially, the position of the defendant was that:
[60] [1994] 1 VR 436
(a) the “injury” to the left shoulder on 14 November 2006 was an aggravation of a pre-existing condition and accordingly, applying the principles set out in Petkovski v Galletti,[60] an analysis must be made of the extent of the impairment of body function before and after the relevant injury; and (b) that the plaintiff was not a creditworthy witness and in particular, was not being frank about the amount of work that she was undertaking at the milk bar. In such case, so it was submitted, performing such activities in the milk bar for a lengthy time casts doubt on how bad the neck and left shoulder injuries are. Furthermore, it was submitted if I found the plaintiff to be less than creditworthy, it would also cause me to have difficulty in accepting the complaints of pain and restriction both to the left shoulder and neck as detailed by the plaintiff. 74 I found the plaintiff to be largely a creditworthy witness who was attempting at all times to give an honest account of events leading up to her injuries and events thereafter. I do find that the plaintiff does attend the milk bar frequently and over time has performed more work at the milk bar. However, I do not accept that she works full-time at the milk bar, or anything approaching that. She attends the milk bar with her husband rather than staying at home by herself and assists in various ways and in various activities when required at the milk bar. I consider that it is of some importance that she has some flexibility as to when she arrives and leaves the milk bar, the type of work she undertakes at the milk bar and whether or not she wants to take a rest if she has pains and difficulties with her neck and or left shoulder.
75 I should add that I found the plaintiff’s evidence particularly impressive about her love of nursing and I bear in mind that she got back to nursing after her low-back injury, and two bouts of surgery to her left shoulder, but was unable to get back to nursing as a result of her neck and or her left shoulder injury after the last bout of surgery. I am of the view that if she had been capable of performing nursing duties, she would have resumed such activity given her love of nursing. Such a view is reinforced when one considers that even in 2008, she underwent a further course to widen her Division 2 nursing qualification in the event that she could return to nursing duties.
76 Applying the principles set out in Petkovski, and making a comparison of the extent of the impairment of her left shoulder prior to the incident on 14 November 2006, and the impairment after such incident, I am satisfied that the final insult to her left shoulder on 14 November 2006 has rendered her unfit to perform nursing duties, whereas prior to that injury, she was capable of performing such duties with some minor restrictions. As Mr Mitchell stated, the incident at work “pushed her shoulder over the edge”.
77 Accordingly, I find that the left shoulder injury on 14 November 2006 satisfies the test set out in Petkovski and in particular, the impairment and consequences which I find to be permanent which have flowed from such injury have prevented her from resuming her chosen career of nursing. I consider such a loss significant in the circumstances of this matter and am satisfied that such impairment may be fairly described as being “more than significant or marked” and as being “at least very considerable”.
78 Furthermore, after a consideration of all of the evidence, I am of the opinion that the incident on 14 November 2006 has aggravated pre-existing degenerative changes in her neck and some degree of disc prolapse at C6-7 consistent with the opinion of Mr Scott, Dr Castle and Mr Schofield. Mr Simm acknowledges the plaintiff had signs of an unresolved soft-tissue injury to her neck which may relate in part to aggravation of minor degenerative disc pathology.
79 Accordingly, I am of the opinion that such neck injury has given rise to some degree of permanent impairment, one of the consequences of which, standing alone and independent of any left shoulder injury, prevents her resuming her nursing career. For the same reasons as advanced above, I consider such a consequence to be of some significance and find that the impairment of the neck may be fairly described as being “more than significant or marked” and as being “at least very considerable”.
80 When making the comparison of her impairment of the left shoulder prior to the work injury compared to her impairment after the work injury, I have taken account that there would appear to be no change in the extent of the medication which she had been taking for both her low-back injury and her initial shoulder injury. Furthermore, there had been inhibitions in the amount of housework that she was able to do and the gardening although, I gained the impression that after the work injury and the resultant bout of surgery, her time in the garden was substantially reduced. I also consider whereas she had some minor pain leading up to the work incident on 14 November 2006, the pain in that shoulder after the work incident has been to a degree more severe. In a similar way, I also take note that prior to the work incident on 14 November 2006, the plaintiff was experiencing some limitations in her day-to- day activities as a result of her pre-existing back injury and initial shoulder injury when one assesses the consequences of her neck injury. Although it would appear that there were earlier periods where she experienced symptoms in her neck, there is no evidence that she was experiencing neck symptoms in the last couple of years leading up to the work incident on 14 November 2006.
Conclusion
81 Having found that the plaintiff has suffered a “serious injury” in respect to her neck and a “serious injury” in respect to her left shoulder, I grant leave for her to bring common law proceedings for pain and suffering in respect to such injuries which occurred on or about 14 November 2006.
82 I will hear the parties on any other ancillary matters.
- - -
Annexure A
1 The plaintiff tendered the following material:
(a) Exhibit A – WorkCo Hire Agreement and two other pages; (b)
Exhibit B – Letter from CGU to the plaintiff in relation to an impairment assessment of the neck and left shoulder dated 29 September 2008;
(c)
Exhibit C – The two affidavits of the plaintiff sworn on 19 February 2010 and 30 September 2011, found at pages 20-26C of the Plaintiff’s Court Book (“PCB”);
(d)
Exhibit D – Worker’s Claim Form dated 15 November 2006 and Employer Claim Report dated 20 November 2006, found at pages 27-31 of the PCB;
(e)
Exhibit E – An x-ray of the left shoulder dated 20 July 2005; and MRI scan of the left shoulder dated 6 April 2006; an ultrasound of the left shoulder dated 3 August 2006; a CT scan of the cervical spine and the thoracic spine dated 10 January 2007; and MRI scan of the cervical spine dated 3 April 2007; a CT scan of the lumbar spine dated 12 April 2007; and MRI scan of the left shoulder dated 8 August 2007 and an ultrasound of the left shoulder dated 19 February 2008. Such material is found at pages 56-67 of the PCB;
(f)
Exhibit F – Medical reports from the treating general practitioner, Dr N Livingston, dated 4 August 2007, 19 December 2009, 14 September 2011, together with a letter to Dr Livingston dated 2 August 2011; report from the physiotherapist, Mr S Doddrell, dated 7 August 2007; report from the physiotherapist, Mr S Ellis, dated 7 September 2007; report from the physiotherapist, Mr C Weybury, dated 25 November 2009; reports from the orthopaedic surgeon, Mr S Schofield, dated 18 February 2011 and 1 August 2011; reports from the occupational physician, Dr C Castle, dated 26 August 2010 and 25 September 2011. Such material is found at pages 68-93L of the PCB;
(g)
Exhibit G – Medical report of Dr W Crouch dated 12 April 2005; report from the general surgeon, Mr Peter Scott, dated 9 December 2007 and a report from Dr David Elder dated 9 September 2008. Such reports are found at pages 95 and 105-118 of the PCB. The plaintiff also tendered the report of Mr David Mitchell dated 15 March 2010 found at pages 38- 40 of the Defendant’s Court Book (“DCB”);
(h)
Exhibit H – Index to the DCB with particular reference to surveillance material.
2 The defendant tendered the following material:
(a) Exhibit 1– Medical report of the orthopaedic surgeon, Mr Rodney Simm, dated 16 April 2008; reports of the rheumatologist, Dr K Fraser, dated 22 June 2010 and 21 July 2011. Such reports are found at pages 3-8 and from 19-37 of the DCB; (b) Exhibit 2 – Bundle of Certificates of Capacity dated from 15 November 2006 to 24 March 2010; (c) Exhibit 3 – A letter from the physiotherapist, Mr Peter Rice, to the general practitioner of the plaintiff dated 28 February 2000; (d) Medical records of Mr D Mitchell (3 pages).
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