Goring v Sigma Company Limited and Victorian WorkCover Authority
[2012] VCC 1605
•22 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01645
| KELLY GORING | Plaintiff |
| v | |
| SIGMA COMPANY LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 October 2012 | |
DATE OF JUDGMENT: | 22 October 2012 | |
CASE MAY BE CITED AS: | Goring v Sigma Company Limited and Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1605 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to right and left shoulder as a result of repetitive work – pain and suffering only – disentangling psychological from physical – credibility of the plaintiff
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142
JUDGMENT – Plaintiff’s application to bring proceedings at common law refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr S R McCredie | Ryan Carlisle Thomas |
| For the Defendants | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 The plaintiff worked in repetitive picking and packing for the first defendant from 2002. In 2004, she started to feel pain in her shoulders, in particular the right shoulder. She ceased work in early 2005, and claims that a range of sporting and recreational activities have been significantly restricted as a result of injury.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment over the period from July 2002 until 2005. The body function said to be lost or impaired is the right shoulder. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff, a lay witness, Roslyn Dunbar, and a treating orthopaedic surgeon, Mr Nigel Broughton were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and various lay witnesses, medical reports, radiological reports and other material was tendered into evidence. I have read all of the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those affidavits and reports which appear to me to be of most relevance in determining the issues in dispute. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
4 The plaintiff was born in 1974 and is now thirty-seven years of age. She completed schooling to Year 12. She was married until 2006 when she separated from her husband. She has two children of that marriage, who are now sixteen and thirteen. After the breakdown of her marriage, she formed a relationship with another man and lived with him for approximately twelve months. She has a child of that relationship, Abigail, now four years of age.
5 After leaving school, she worked in a range of employments, including at a supermarket in Frankston, as a factory worker and a driver. Prior to sustaining the injuries, the subject of this application, she had suffered no significant illnesses nor injuries. In particular, she had not sustained any injury to her right or left shoulders.
6 According to her affidavit, she was very active and enjoyed a range of sports including indoor cricket, cycling and karate. She said that at any family or social gathering where sport was involved, she would participate actively. In cross-examination, she acknowledged that the karate started only in 2004 when she had five sessions. This ceased the same year, in part because of her shoulder injuries, and because she had insufficient time. She acknowledged that she was not part of any formal sporting club, nor played organised competitive sport.
7 Prior to 2004, she undertook a range of activities in particular concerning her family. She was able to undertake all of the housework in a free and unimpeded manner, did the family cooking and enjoyed her involvement with her two older children. She described them as being “sports mad” and she said she eagerly participated in a range of their activities. She enjoyed her work as a picker and packer with the first defendant and was able to do all of the work without difficulty.
The Injury and its Consequences
8 The plaintiff’s employment after 2002 involved picking and packing. She was required to pull boxes off a conveyor and lift them to stack above shoulder height. In early 2004, she started to feel pain in her shoulders, worse on the right than the left. She reported the matter to her supervisor and went to see her general practitioner, then Dr Tree. She first attended on 10 May 2004. He prescribed rest and Nurofen. He diagnosed right rotator cuff tendonitis and placed the plaintiff on restricted duties. He referred the plaintiff for physiotherapy treatment.
9 The plaintiff returned to normal duties, but within a few days, she suffered further shoulder pain. Her care at the Sterling Medical Centre was taken over by Dr Chhabra whom she first saw on 20 September 2004. At that stage, she was working on modified duties. He referred her to Mr Nigel Broughton, orthopaedic surgeon, in November 2004. X-ray and ultrasound showed no abnormality. Mr Broughton thought the clinical signs consistent with rotator cuff tendonitis and subacromial bursitis. He injected the subacromial space with a local anaesthetic and steroid injection, which gave good short term relief. He arranged a further injection into the acromioclavicular joint which produced little improvement. He arranged an MRI scan[1] which showed minor fluid in the subacromial bursa consistent with bursitis and early degenerative changes within the acromioclavicular joint. There was no rotator cuff tear nor evidence of instability.
[1]Plaintiff’s Court Book (“PCB”) 64
10 On 7 March 2005, Mr Broughton carried out an arthroscopic subacromial decompression with acromioplasty and debridement of the acromioclavicular joint. There was no significant lesion, but there was some instability of the gleno-humeral joint. He referred the plaintiff for physiotherapy.
11 He saw her again on 14 June 2005 and she complained that her pain was the same as before the operation. She had a full range of shoulder movement with some instability.
12 He arranged a further MRI scan of 12 July 2005[2] which concluded:
“Relatively normal post-operative appearances. The AC joint appears to have been excised. Minor fluid in the subacromial bursa.”
[2]PCB 65
13 On that occasion, there was significant restriction of movement of both shoulders.[3] He thought the best treatment option was through a pain management specialist. He concluded in his report of 15 October 2009:
“Although I haven’t seen her for four years, I would expect the prognosis in this type of case to be poor. She appears to have developed chronic regional pain syndrome. Initially, this was thought to be due to subacromial bursitis and was treated appropriately with an arthroscopic subacromial decompression and she didn’t have a good result from this.”[4]
[3]PCB 63A
[4]PCB 63
14 In evidence, Mr Broughton was unable to say whether this meant a physical pain disorder involving the nervous system, or a psychological pain syndrome. He said that was a matter for specialists in the field.
15 The plaintiff remained under the care of Dr Chhabra and was referred for acupuncture. She had periods of time away from work. She ceased work on 18 January 2005, although attempted a return to work in May 2005. The restocking working she then undertook caused pain and she stopped work on 27 May 2005 and did not resume employment with the first defendant after that date.
16 She sought a second opinion, and was referred to Mr John Salmon, orthopaedic surgeon, in October 2005. She described generalised pain over both shoulders with a restricted range of movement. Mr Salmon said:
“The MRI scan did not appear to demonstrate any injury to the rotator cuff or acromioclavicular joint.”[5]
[5]PCB 57
17 He considered the plaintiff had a chronic pain syndrome with a possible neuropathic element. He referred her to a pain management specialist, Dr Clayton Thomas.
18 The plaintiff saw Dr Clayton Thomas in December 2005. She reported pain in both shoulders. She told Dr Thomas that she was unable to sleep comfortably in a bed, and slept on a recliner. Medication at the time included Nurofen, Panadeine Forte infrequently, Temazepam and Dothep (for sleep). Dr Thomas also received a history of significant marital disharmony. He detected an emotional reaction which he described as a “significant driver” for her pain experience.[6] He referred her to pain management program at Victorian Rehabilitation Centre. He prescribed Lyrica in the event there was a neuropathic component to her pain. This proved to be of no benefit. The plaintiff had undertaken the pain management program which involved hydrotherapy. She did not return to Dr Thomas for treatment.[7]
[6]PCB 67
[7]The plaintiff subsequently returned to Dr Thomas for medico-legal assessment.
19 In 2006, the plaintiff suffered the breakdown of her marriage. It is clear that this was a very distressing time for her. According to a report of the treating psychiatrist, Dr Mazumdar,[8] he saw her in July 2006 when she presented as distressed, suicidal and agitated. She had a period as inpatient at a psychiatric hospital. He considered that she was at high risk of suicide. According to Dr Mazumdar:
“The stressor for the acute exacerbation of her pre-existing depression was her recent separation from her husband, the harsh reality of single parenthood, the chronic shoulder pain and its restricting impact on her day-to-day life and the emotional and probable financial insecurity.”[9]
[8]PCB 59
[9]PCB 59
20 He diagnosed the plaintiff as suffering an adjustment disorder with depression, for which he provided counselling and supportive psychotherapy. The distress of the marriage breakdown was compounded when the plaintiff’s husband moved into live with a friend. The plaintiff described her former husband as unsupportive in relation to her injuries. She has remained under the care of Dr Mazumdar through to the present time, and sees him every few months. He prescribes antidepressant medication, presently Effexor.
21 In 2008, the plaintiff formed a relationship with another man. She became pregnant in that year, and her youngest child, Abigail, was delivered in November 2008. She has since separated from Abigail’s father, although sees him from time to time, and he provides supportive access.
22 In 2007, the plaintiff returned to work in a gift shop working one day per week. She described the work as light. At one point, she increased her hours to sixteen hours per week, but was unable to maintain these hours because of pain in her shoulders.
23 In March 2007, the plaintiff was referred to Dr Peter Courtney, an anaesthetist and pain management specialist. He obtained a history of ongoing pain in both shoulders and significant limitation of movement. He said that he thought the plaintiff had largely myofascial pain.[10] Notwithstanding his finding that the plaintiff did not have adhesive capsulitis, he performed a hydrodilatation to the plaintiff’s right shoulder with manipulation/examination under anaesthetic. He noted a full range of movement with no evidence of adhesive capsulitis. He noted the plaintiff responded well to the treatment.
[10]A generalised deep muscular pain
24 He saw the plaintiff again in January 2011 with increasing problems in her left shoulder more so than the right. He performed further manipulations under general anaesthetic to the left shoulder in October 2011, and to the right shoulder in January 2012. The plaintiff described that after these procedures, the pain and movement in her shoulder was much improved.
25 She has remained under the care of her general practitioner and at the present time takes Nurofen on a regular “as needed” basis, Panadeine Forte, several times per week, and Effexor. She further has massage therapy.
26 At the present time, she works in the gift shop once per fortnight for nine hours. In addition, she works one day per week as a receptionist. The work involves answering phones, filing, invoicing and “front of house”. She described her work as not physically strenuous. She enjoys both jobs. She said that if she could manage it, she may look next year when her youngest daughter is in kindergarten to increase her hours. She has computer skills.
27 At the present time, the plaintiff described that she has constant pain in both shoulders. She has difficulties with sleep, although not as severe as before the manipulation procedures. She has a cleaner who comes to the house once per week. She struggles with the heavier aspects of household duties including vacuuming, cleaning and any tasks above shoulder level. She cooks for herself and her children and drives regularly, although not for long distances. She looks after her youngest daughter at home and is able to shop, providing she does not have to lift items of shopping. She says she cannot enjoy any of her previous recreational activities. At the present time she does not believe she can increase her hours of work.
28 In cross-examination, she admitted that her two older children now need less care and are relatively independent. Her clothesline has been adjusted so that she can reach it. She has not asked her general practitioner for sleeping tablets for quite a while. She has adjusted to most of her domestic duties. She has adapted to tasks such as combing her hair and brushing her teeth. She walks regularly, pushing her daughter in a stroller, although finds it difficult on hills.
29 Since her shoulder injury, she has been on holidays, including two trips to the USA in 2009 and 2011. She accepted that she was not lonely or isolated and had a fairly good social life. She has retained photography as a hobby.
30 Affidavits of the plaintiff’s former husband, Mr Rathbone, her friends, Ms Mantel and Ms Dunbar,[11] and the plaintiff’s mother, Ms Davies, were tendered in evidence. They were generally supportive of the plaintiff’s claim as to pain and restriction in her shoulders. In the case of Ms Dunbar, in cross-examination, she admitted that she had little if any contact with the plaintiff between 1995 and 2006.
[11]Who also gave evidence
Medical Opinions
31 According to the plaintiff’s general practitioner, Dr Chhabra, the plaintiff is suffering from a chronic pain syndrome affecting both shoulders, secondary to rotator cuff tendonitis.[12] This, he said, was consistent with her repetitive work. He noted that the plaintiff had developed secondary depression. He said:
“In my opinion, leaving aside any psychological or psychiatric consequences of her physical injury, she is likely to remain unfit for her pre-injury duties in the foreseeable future and likely to be only fit to work on part time basis, as she is doing now. I consider her disability to be permanent.”[13]
[12]PCB 49B
[13]PCB 49B
32 Mr Dobeli, the plaintiff’s treating physiotherapist, said there were a number of inconsistent features in her presentation.[14]
[14]PCB 55
33 As stated, Mr Salmon determined that the plaintiff was suffering a pain syndrome. I conclude from his report that he is referring to pain which has a non-physical basis.
34 As stated, Mr Broughton, who performed the early arthroscopic surgery, gave evidence. He had not examined the plaintiff since 2005. He was shown various excerpts from surveillance video, to which I will shortly refer. He said none of the matters shown were inconsistent with the plaintiff’s presentation and diagnosis. At times, he said, it was clear the plaintiff was having difficulty performing various tasks. He described the plaintiff’s condition as rotator cuff tendonitis and subacromial bursitis. He said that while most patients recover from those conditions when taken away from workplace stressors, there was a significant proportion who did not. In some patients, it is a long term condition. In cross-examination, he acknowledged that after the surgery, the plaintiff’s range of movement was considerably reduced from before the surgery. He said this could be explained by the nature of the condition and that some patients are able to be more active on good days with medication.
35 He acknowledged that the activities depicted in the video film showed the plaintiff had a greater range of movement than when he examined her in July 2005.
36 Dr Clayton Thomas saw the plaintiff at the request of her solicitors again in 2010. At that time, the plaintiff complained of bilateral shoulder pain, worse on the left. On examination, there was significant reduced movement of the shoulders.[15] He determined the plaintiff had a myofascial pain syndrome involving both shoulders. He thought her incapacity would persist into the foreseeable future and that she was limited in her social, domestic and recreational activities. He thought that the plaintiff had a work capacity of approximately twelve hours per week. He said that her problem was an “organic one”[16] and that it was predominantly a myofascial pain syndrome, involving the right more so than the left shoulder.[17] He noted that the plaintiff had developed alternative ways of managing social, domestic and recreational tasks, although she had difficulty with the heavier domestic chores, such as scrubbing the bathroom. He thought her problems would be long term.[18]
[15]PCB 72
[16]PCB 76
[17]PCB 77B
[18]PCB 77C
37 The plaintiff was examined on a number of occasions by Mr Stephen Doig, orthopaedic surgeon, over the period from 2010 to 2012. While he said it was difficult to be precise about the diagnosis, he thought the plaintiff was suffering bilateral subacromial bursitis, complicated by a secondary frozen shoulder. The evidence for this, said Mr Doig, was that the plaintiff had obtained marked improvement after the manipulation of her right shoulder. He did not find any evidence of a chronic regional pain syndrome. The range of movement upon examination varied on the occasions Mr Doig examined the plaintiff. In 2010 it was significantly limited, although by 2012, it had improved.
38 As a consequence of the physical injury, Mr Doig considered that the plaintiff’s employment activities were restricted to a moderate extent. He said that her social and domestic activities were significantly affected and she found aspects of her housework difficult. He said it was unlikely she would return to karate or indoor cricket.
39 The plaintiff was examined on a number of occasions between 2010 and 2012 by Dr Charles Castle, an occupational medicine specialist. He concluded that the plaintiff was suffering bilateral rotator cuff syndrome with bilateral adhesive capsulitis. He noted she had a chronic adjustment disorder with depression and anxiety. He said the plaintiff had marked restriction for employment and related activities and had a work capacity of only twelve hours. He said that work capacity would continue for the foreseeable future.
40 As earlier stated, Dr Peter Courtney, anaesthetist and pain management specialist, considered the plaintiff had a myofascial pain disorder without adhesive capsulitis. He said:
“In my experience, having seen a number of women who have worked as pickers and packers in various industries, many of these women do not do well and are often unable to return to their previous employment. I would regard her prognosis as guarded.”[19]
[19]PCB 86O
41 On behalf of the defendants’, the plaintiff was examined by a range of practitioners. I did not find the reports of Dr Ho[20] and Mr Weaver[21] of significant assistance. They each examined the plaintiff on one occasion only in 2004 and did not have the benefit of radiological investigations and the plaintiff’s subsequent treatment history.
[20]DCB 7
[21]DCB 17
42 Mr Reid, surgeon, examined the plaintiff in 2005 and 2006. He found inconsistencies upon examination and an exaggerated response. He thought there were non work-related factors involved. He said the plaintiff had suffered a muscular strain and that the pathology shown on MRI scan was mild. He said she had a work capacity.
43 The plaintiff was examined by Mr Stanley O’Loughlin, orthopaedic surgeon, in July 2006. When he examined the plaintiff, movement of both shoulders was markedly restricted and he thought there was a voluntary component to those restrictions. He said the plaintiff’s level of pain was out of proportion to the physical signs. He accepted the plaintiff had suffered a soft tissue strain to both shoulders but had developed a non-organic regional pain syndrome which was significantly out of proportion to any physical injury.
44 I was provided with the decisions of two Medical Panels. The answers to the questions posed are not of significant assistance in determining the issues in this application.
45 The plaintiff was then examined by Mr Clive Jones, orthopaedic surgeon, on two occasions in 2010. He said the investigations did not show any substantial shoulder pathology. He noted the plaintiff was significantly depressed. He said that her complaints of disability were not borne out by physical examination, nor the investigations. He said there was a major functional problem of a psychological nature. He concluded the plaintiff’s shoulder problems were minor but that her major problem was her state of depression. Ignoring functional or psychological components, he said the plaintiff clearly had a work capacity.
46 Dr Philip Mutton, occupational physician, saw the plaintiff once in 2011. He said there were significant psychological elements involved in the plaintiff’s presentation. He noted she was markedly depressed and had attempted suicide. He said that taking into account solely the plaintiff’s physical symptoms, the plaintiff would have a great deal of difficulty finding employment and would be restricted to bench type work. He said she would be able to work in sedentary jobs.
47 The plaintiff was examined by Mr Michael Shannon, orthopaedic surgeon, in June 2011. When he examined her, she said that the main problem was her right shoulder. He said the development of the symptoms in both her shoulders in 2004 was consistent with the repetitive work she was undertaking at the time, and resulted in subacromial bursitis and possibly impingement. He noted that the manipulation under general anaesthetic in March 2007 had resulted in significant improvement, but the pain had returned subsequently. He found this difficult to understand as there was no evidence of adhesive capsulitis (frozen shoulder). He noted Dr Courtney had not made that diagnosis and he could not see any reason for performing the manipulation.
48 He said that the plaintiff’s problem was of a chronic pain syndrome and not consistent with adhesive capsulitis. He said the complaints of pain were widespread and the pain syndrome had long since overtaken any organic pathology in the shoulder. He said any form of physical treatment was unlikely to produce any improvement.
49 Dr Timothy Entwisle, psychiatrist, concluded that the plaintiff was suffering a major depressive illness which was in remission with treatment when he examined her in 2011.
50 The plaintiff was examined on behalf of the defendants by Mr Rodney Simm, orthopaedic surgeon, on two occasions in 2012. On examination, he said the plaintiff demonstrated features of a non-organic pain condition. The range of movement in both shoulders was markedly restricted. There were marked areas of hypersensitivity over the shoulders. He said there were no clinical signs of subacromial impingement or rotator cuff dysfunction. He said the findings suggested a chronic pain syndrome with features of fibromyalgia. This, he said, had overtaken the organic or physical features. Normally, he said, one would have expected a reduction in her pain and restriction once the repetitive duties that she had undertaken, ceased. He said the plaintiff presented as an entirely genuine person and he was not suggesting that her presentation was contrived.
51 When he examined the plaintiff in September 2012, the constant pain in her shoulders had continued, with the left shoulder more painful than the right. The range of movement in both shoulders was restricted. On examination, he found the plaintiff showed signs of overt pain behaviour with facial grimacing and excessive complaints. Again, there were no clinical signs of rotator cuff dysfunction. He confirmed his earlier diagnosis of a chronic pain syndrome. He said it was possible the plaintiff had rotator cuff tendonitis at an earlier stage of her injury as a result of her repetitive work duties, but that he could find no evidence of a physical condition when he examined her, such as to give rise to the complaints of pain and restriction. He said:
“I could not detect the presence of a residual physical condition. Her current condition seems to relate to a functionally based chronic pain syndrome and to an adverse psychological reaction. As noted above, there may be a minimal contribution to right shoulder dysfunction from the arthroscopy. … “[22]
[22]DCB 89
52 From a physical perspective, he said the plaintiff would be capable of full time suitable work.
53 Finally, the plaintiff was examined by Dr Dominic Yong, occupational physician, in September 2012. He summarised the plaintiff’s condition as:
“∙ Right shoulder rotator cuff injury requiring surgery in early 2005 and complicated by a chronic regional pain syndrome and a psychological comorbidity, and this is resolving with conservative measures.
∙ left shoulder rotator cuff injury complicated by a psychological comorbidity and a complex regional pain syndrome and this is resolving with conservative measures.”[23]
[23]DCB 97
The Credibility of the Plaintiff
54 I had the opportunity to observe the plaintiff in the course of evidence-in-chief and cross-examination. I was impressed by the manner in which she gave evidence. She made concessions I would expect of an honest witness. In particular, she conceded that her condition had been significantly improved since the manipulation of her shoulders. Like Mr Simm,[24] I found the plaintiff a genuine person without any indication that she was attempting to exaggerate or mislead the Court.
[24]DCB 79
55 Extensive surveillance film of the plaintiff was shown. The film was taken over the period from April 2010 until March 2012. On behalf of the defendants, Mr Miles admitted that overall, video surveillance film of the plaintiff was taken over a considerable period of nineteen days from April 2010 until August 2012. The surveillance film which was shown in Court indicated the following:
(a) On 9 April 2010, the plaintiff was shown carrying her daughter, Abigail, and placing her into the rear seat of a car.
(b) On 12 July 2010, the plaintiff was seen in the parking lot of a supermarket unloading moderate sized bags of shopping into the boot of her car from a trolley. She returned the trolley to an area of the car park and lifted her daughter out of the trolley with both her arms held high into the air. She then placed her daughter into a car seat in the rear of the vehicle.
(c) On 10 September 2010, the plaintiff was at a car park and lifted her daughter out of a pusher. In the supermarket, she selected items from the shelves, including some on higher shelves. At one point, the plaintiff was shown using her left hand to support her right when selecting items. She subsequently returned to her car in the rain, and lifted her daughter into the rear seat, packed up the stroller and lifted it into the boot.
(d) On 18 September 2010, the plaintiff was seen opening the gift shop at which she works. In the morning she pulls out large display trolleys loaded with items for sale. There are approximately six such trolleys. She appeared to push and manoeuvre the trolleys without difficulty. Later that evening, she pushed and pulled the trolleys back into the shop.
(e) On 27 October 2010, the plaintiff was seen walking in a car park and closing her car door.
(f) On 11 March 2011, the plaintiff was seen pushing her daughter in a stroller around a lake. At times she raised her arms to her head to brush back hair. Subsequently she was in a child’s play area taking photographs of her daughter with the camera raised to her eye. She placed her daughter into a pusher and pushed her around the lake. She was again seen in a supermarket reaching for higher items. Again, one hand supported the other arm.
(g) On 19 March 2011, the plaintiff was at a garage sale, moving without impediment. She lifted her right arm above shoulder height and picked her daughter up.
(h) On 28 April 2011, the plaintiff was walking, holding her daughter’s hand. She lifted her into a car seat, and filled the car up with petrol.
(i) On 3 March 2012, she was seen at a children’s playgroup interacting with her daughter.
56 Prior to the showing of the video, the plaintiff was asked as to the extent to which she could move her left and right arms. With her elbow straight, and her arm along her side, she was able to raise the arm in front of her to approximately 50 or 60 degrees. With her arm straight by her side, she was able to raise the arm approximately 40 degrees. In cross-examination, Mr Broughton accepted that the movement shown by the plaintiff in the extracts of the video he saw was more free and extensive than when he examined the plaintiff in 2005.
57 Having seen the plaintiff display the extent of her arm movement in evidence, and then having seen her activities on the surveillance video, my immediate impression was that the movement in the video was far more extensive and unrestricted than the plaintiff displayed in Court, and to some of the doctors by whom she had been recently examined.[25] On other occasions, however, the plaintiff performed movements which were clearly restricted and showed evidence of shoulder disability. On two occasions, it is clear the plaintiff used one arm to support another. On the occasions she opened the boot of her car and then closed it, she did so in a manner which showed a compromise of shoulder movement.
[25]In particular, see the examinations of Mr Doig.
58 Further, the plaintiff explained that in relation to the movements which showed her raising her hands to her face, the upper part of her arm was by her side and the elbow bent. She further explained that when she lifted her daughter into the car seat, she climbed into the back seat to be close to the car seat, so that she did not place pressure upon the shoulder by extending it. On the occasion when she lifted her daughter out of the trolley with her arms high, I accept the explanation that when performing such a manoeuvre, she may well have experienced pain, and extended beyond her usual range of motion as there was no other way to extract her daughter from the trolley.
59 All in all, I have formed the view that, while there were inconsistencies between the plaintiff’s presentation to the Court and doctors, and what is depicted on the video, that discrepancy may be explained in a number of ways, as described above. Equally, on occasions in the video the plaintiff is seen with a clear indication of a compromise in shoulder movement. All in all, I do not conclude that the plaintiff’s credibility is significantly affected. I do not see a basis from the surveillance film to reject the plaintiff’s complaints of pain and restriction of movement. I accept that, because of the nature of the condition, her pain and restriction varies.
60 I am fortified in this conclusion by the fact that I found the plaintiff a credible and honest witness in the course of her cross-examination. I am also impressed by the fact that the plaintiff has made a genuine attempt to return to work, in the gift shop and as a receptionist.
The Diagnosis of the Plaintiff’s Injury
61 While the focus of the determination of an application of this nature is upon the consequences of injury, none the less I accept it is necessary to identify the injury from which the plaintiff is suffering. That is particularly so in an application where there are a range of diagnoses from the medical practitioners, and different opinions as to the extent to which there is a physical basis for that injury.
62 I accept the evidence of the plaintiff’s treating surgeon, Mr Broughton, that in 2004 she developed pain in her shoulders, which he diagnosed as rotator cuff tendonitis and subacromial bursitis. That condition was the subject of various forms of treatment, including injections into the joint and an arthroscopic decompression and debridement. According to the evidence of Mr Broughton, it is not uncommon for such a condition to persist, and over many years. Mr Miles submitted that Mr Broughton was a “batsman” or had “gone to bat” for the plaintiff. I did form the view that Mr Broughton was advocating the plaintiff’s cause. If he had not “gone to bat” then he had “walked to the pitch and taken block”. As a result, I should take care when analysing his evidence.
63 The diagnosis by Mr Doig of adhesive capsulitis or frozen shoulder is difficult to understand. Likewise, it is difficult to understand why Dr Courtney performed manipulations under general anaesthetic when he himself did not make that diagnosis. It is further somewhat curious that the plaintiff said that the procedures provided considerable relief. I accept the submission of Mr Miles that those procedures had a placebo effect, but that the plaintiff honestly believed they had helped. I do not accept the evidence of those practitioners who diagnosed the plaintiff as suffering adhesive capsulitis.
64 The evidence of both pain management specialists, Dr Clayton Thomas and Dr Courtney, is that the plaintiff has a myofascial pain disorder, which has an organic basis. It is difficult in applications of this nature, with varying medical opinion, and without hearing from the doctors in evidence and under cross-examination, to make a determination of physical injury. While I accept that the plaintiff suffered tendonitis and bursitis in the right shoulder over a number of years, it is more difficult to determine whether that condition has persisted through to the present. I accept that the MRI scans show only modest pathology. That, however, is not determinative of the issue.
65 On balance, I accept that the initial diagnosis has been somewhat overtaken by a myofascial pain syndrome as described by Dr Clayton Thomas. He is an expert in the area. He acknowledges that emotional factors are playing a significant role.
66 The real issue to determine is the extent to which the plaintiff’s present complaints of pain and restriction, and the consequences to which she refers, are a product of a physical disorder, in the nature of rotator cuff tendonitis and subacromial bursitis, or myofascial pain disorder, or on the other hand, a pain syndrome as referred to many of the practitioners.
Disentangling the Physical from the Psychological
67 A number of practitioners are of the view the plaintiff has a physical condition. Mr Doig concluded the plaintiff suffered subacromial bursitis, complicated by a frozen shoulder. However, as stated, I do not accept the plaintiff suffers frozen shoulder, particularly given the opinion of Dr Courtney. Dr Castle, in his reports of 2010 and 2012, says the plaintiff suffers a rotator cuff syndrome and bilateral adhesive capsulitis. Dr Clayton Thomas says the plaintiff suffers a myofascial pain problem which is an organic injury. He acknowledges, particularly in his early report, that emotion factors have a considerable role to play.
68 The evidence of the existence of a pain syndrome is substantial. Both the plaintiff’s general practitioner, Dr Chhabra, and the treating surgeon, Mr Salmon, both say the plaintiff has a pain syndrome. Almost all of the defendants’ doctors diagnose the plaintiff either as suffering a pain syndrome, or with symptoms which are psychologically based. Those practitioners include Mr O’Loughlin in 2006, Mr Jones in 2010, Dr Mutton in 2011, Mr Shannon in 2011 and MrSimm in 2012.
69 I have reservations about the evidence of Mr Broughton as stated above and note that in any event he has not examined the plaintiff since 2005. Any opinion he has as to the plaintiff’s current condition must be open to question.
70 In the end, I accept the balance of the medical opinion that the plaintiff’s condition, while at the outset was one tendonitis or bursitis to the right shoulder, has been overtaken by a chronic pain syndrome, which has a psychological basis. I accept the opinion of most of the practitioners that there is little to be seen on radiological investigation. Further, many practitioners observed inconsistencies in physical examination. There was certainly a variance between the movements exhibited by the plaintiff and the video surveillance, and what was determined as considerably restricted range of movement of the shoulders by the more recent examiners.
71 I bear in mind that in determining whether the plaintiff has suffered injury, all of the evidence should be taken into account, not just that of the medical practitioners.[26] Further, a Court may be able to conclude, on the basis of all of the evidence, that a plaintiff has suffered a physically based impairment which satisfies the statutory test where the precise quantum of the supervening psychological overlay is not able to be accurately quantified.[27] Indeed, in this case it is extremely difficult to quantify the degree to which the psychological component of the plaintiff’s presentation has supervened over the physical impairment. As was said by Redlich JA in Zivolic v Hella Australia Pty Ltd,[28] where a plaintiff has suffered both physical and psychological injury, if the medical evidence permits the conclusion that the physical consequences of injury reach the serious injury level, then no further disentangling or stripping away may be required.
[26]Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at paragraph [17]
[27]Jayatilake at paragraph [19]
[28][2007] VSCA 142 at paragraphs [19] – [20]
72 The difficulty for the plaintiff in this application is that the evidence which I accept, points to a very significant psychological basis for the plaintiff’s current complaints of pain and restriction. The Act provides that the onus lies upon the plaintiff to satisfy a Court that there is a physical basis for the consequences which reach the relevant threshold. In my view, the plaintiff has not met that onus.
Conclusion
73 While I am not able to quantify precisely, in my view the underlying basis for the plaintiff’s complaints of pain and restriction are predominantly psychological rather than physical. While the original physical injury, in the nature of bursitis or tendonitis in the right shoulder may still be playing some role, I accept the evidence of the bulk of the practitioners that that role is modest only. The pain syndrome referred to is, in my view, the basis for the plaintiff’s present problems.
74 I am not satisfied that her physical condition produces symptoms and consequences which meet the serious injury level. Accordingly, the plaintiff’s application fails.
75 I shall make consequent orders.
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