Grgic, Branka v Franklins Limited
[2010] VCC 111
•3 February 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-02080
| BRANKA GRGIC | Plaintiff |
| v | |
| FRANKLINS LIMITED | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 21 January 2009 |
| DATE OF JUDGMENT: | 3 February 2010 |
| CASE MAY BE CITED AS: | Grgic, Branka v Franklins Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0111 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff had suffered a compensable injury in the course of her employment with Franklins – evidence failed to disclose the occurrence of a compensable injury.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Clark, Toop & Taylor |
| For the Defendant | Mr A Middleton | Thomson Playford Cutlers |
| AND |
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-0702829
| BRANKA GRGIC | Plaintiff |
| v | |
| COLES GROUP LIMITED | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 21 January 2009 |
| DATE OF JUDGMENT: | 3 February 2010 |
| CASE MAY BE CITED AS: | Grgic v Coles Group Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the aggravation of the pre-existing injury to the plaintiff’s left shoulder with Coles resulted in a further impairment of the function of the plaintiff’s left shoulder which was permanent, and resulted in further consequences – whether the plaintiff's return to gainful employment militates against a finding that the further consequences were at least very considerable – Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 – whether the further consequences were at least very considerable: section 134AB (38) (c)
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Clark, Toop & Taylor |
| For the Defendant | Mr B McTaggart | Monaghan & Rowell |
| HIS HONOUR: |
1 Before the Court are two applications brought by Originating Motion. The first was filed on 4 June 2007 by the plaintiff against Franklins Limited ("Franklins"), by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with Franklins.
2 The second Originating Motion was filed on 26 July 2007 by the plaintiff against Coles Group Limited ("Coles"), by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Act, to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with Coles.
3 The plaintiff seeks leave to bring such proceedings for pain and suffering in each application.
4 Mr M Ruddle of Counsel appeared for the plaintiff in each application. Mr A Middleton of counsel appeared for Franklins. Mr B McTaggart of counsel appeared for Coles.
5 The body function which the plaintiff says has been lost or impaired is the left shoulder and the neck.
6 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • Dr Petrovic, general practitioner, gave evidence and was cross-examined. •
The plaintiff tendered her Court Book ("PCB"), pages 6-14; 21-27.2; 38- 142 and 143-149.2: Exhibit A.
• Franklins tendered its Court Book ("DCB"), pages 84j-84m: Exhibit F1.
The Statutory Scheme
7 The applications are brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(f)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (1994) 1 VR 436
9 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
10 The plaintiff was born on 28 June 1963. She is now forty-six years of age. She is a married woman. She has one child, a daughter, who is about twenty years of age.
11 The plaintiff was born in the Republic of Bosnia. She migrated to Australia in 1994 when she was thirty-one years of age. She trained as a veterinarian in Bosnia. She worked as a veterinary inspector.
12 The plaintiff's qualifications were not recognized in Australia. After a failed attempt to upgrade her qualifications she commenced employment with Franklins in April 1996.
13 The plaintiff first suffered injury in about June 1998 while working for Franklins. In about October 2001, Franklins was sold to Bi-Lo, which is a division of Coles. She subsequently worked for Coles until about April 2002, when she ceased work.
14 The plaintiff was out of the workforce for about four years before she retrained and obtained full time employment with Centrelink, where she continues to work.
The Injury with Franklins
15 The plaintiff worked as a shop assistant with Franklins. The tasks required of her involved working at a cash register. At first she was able to work from her left side, alternating with her right side.
16 In about January 1997, she was promoted to the position of supervisor. The tasks then required of her involved working on an express lane exclusively using her left hand to process goods through a check out.
17 In about June 1998, the plaintiff developed symptoms of pain in her neck, left shoulder and arm.
The Plaintiff's Medical Treatment
18 The plaintiff first saw Dr O’Hagan, general practitioner at a Premier Care Clinic in Glenroy. She saw Dr O'Hagan on one or two occasions. She was referred to have physiotherapy and she was prescribed medication.
19 Dr O'Hagan certified the plaintiff as being unfit for work for about one month over July and into August 1998.
20 In about July 1998, the plaintiff was placed onto light duties working at a kiosk cash register. She performed those light duties without incident.
21 In about October 2001, Franklins was sold to Bi-Lo. In about late February 2002, the plaintiff was required to perform unrestricted tasks which exposed her to the manual handling of stock.
22 By about April 2002, the plaintiff was experienced increasing symptoms in her left shoulder and left arm. By April 2002, her symptoms were so bad that she was no longer able to cope with any work. It was then that she ceased employment with Coles.
23 The plaintiff did not return to Dr O'Hagan. She preferred to see Dr Horvat, general practitioner, for two reasons. Firstly, when she attended the Premier Care Clinic she saw whichever medical practitioner was available, which she found unsatisfactory. Secondly, seeing Dr Horvat allowed her to see the same medical practitioner, and furthermore, he spoke her native language.
24 The plaintiff first saw Dr Horvat on 31 August 1998. The plaintiff told Dr Horvat that she developed pain in her left shoulder gradually while performing the tasks referred to above. The symptoms gradually increased. She also told him that she had been referred to physiotherapy; had x-rays; and had been prescribed Voltaren and Indocid.
25 Dr Horvat referred the plaintiff to have an ultrasound of her left shoulder and arm which was undertaken on 7 September 1998.[4] The results were normal. He referred the plaintiff to have more physiotherapy, and he prescribed Brufen.
[4] PCB 144
26 On 10 November 1998, Dr Horvat injected the plaintiff's left shoulder with cortisone. She experienced some improvement.
27 Dr Horvat referred the plaintiff to have a bone scan, which was undertaken on 20 November 1998. The results were normal.[5]
[5] PCB 145
28 Dr Horvat then referred the plaintiff to Mr Shimmin, orthopaedic surgeon.[6] According to Dr Horvat, Mr Shimmin injected the plaintiff’s left shoulder with cortisone on 23 November 1998. He reviewed the plaintiff and subsequently referred her to have an MRI scan, which was undertaken on 30 March 1999. The results were normal.[7]
[6] No report was obtained from Mr Shimmin
[7] PCB 146
29 According to Dr Horvat, Mr Shimmin considered that the plaintiff was suffering from rotator cuff tendinitis and some bicipital tendinitis. He performed a hydrodilatation of the plaintiff’s left shoulder. It initially caused a flare-up of pain in the plaintiffs left shoulder, but it gave the plaintiff some improvement.
30 Dr Horvat referred the plaintiff to Dr Braun, sports physician.[8] According to Dr Horvat, it was Dr Braun's opinion that the plaintiff had symptoms in the left side of her neck, left shoulder and left arm suggestive of left thoracic outlet syndrome.
[8] No report was obtained from Dr Braun
31 Dr Braun referred the plaintiff to Dr Jensen, musculoskeletal physician. The plaintiff saw Dr Jensen on 17 February 2000 and 24 February 2000. He was to provide a second opinion. It does not appear that he provided the plaintiff any treatment.[9] He referred the plaintiff to have an x-ray of her neck and thoracic outlet. The results were normal.[10]
[9] PCB 65-69
[10] PCB 148
32 The plaintiff was then referred to Mr Wallace, neurosurgeon. It is unclear who referred the plaintiff to him. In any event, the plaintiff first saw him on 3 April 2000. On that occasion he expressed the opinion that the plaintiff was suffering from a thoracic outlet syndrome which he considered would not settle without surgical intervention.[11] The plaintiff subsequently saw Mr Wallace on a number of occasions.
[11] PCB 71-72
33 Mr Wallace referred the plaintiff to have an MRI scan, which was undertaken on 19 April 2000.[12] Although the radiologist was of the opinion that the thoracic outlet and brachial plexus were within normal limits, Mr Wallace was of the opinion that the plaintiff’s symptoms arose from a thoracic outlet syndrome on the left side.
[12] PCB 149
34 When Mr Wallace reviewed the plaintiff on 6 May 2002, he conducted a clinical examination. He found that she had a positive "surrender test" for thoracic outlet syndrome on the left side, and had weakness of her left triceps and finger extensors, with left C8 sensory dulling.[13]
[13] PCB 75
35 Mr Wallace undertook a surgical exploration of the plaintiff's thoracic outlet on 23 August 2002, performing a left-sided scalenotomy. He was of the opinion that the plaintiff had been partly helped by the surgery, but was still suffering from symptoms of a significant thoracic outlet syndrome.[14]
[14] PCB 79
36 The plaintiff ceased seeing Dr Horvat. She first saw Dr Petrovic, general practitioner, on 7 February 2002. Dr Petrovic has treated the plaintiff since.
37 Dr Petrovic inherited sufficient information from Dr Horvat to understand who had treated the plaintiff before she first saw her, and the treatment she had been provided.
38 Dr Petrovic referred the plaintiff to Mr Kudelka, orthopaedic surgeon. She saw him on one occasion in early 2002. He was of the opinion that the plaintiff's symptoms were suggestive of cervical disc changes with left outflow brachialgia, and that her left shoulder symptoms were secondary to nerve pressure from the plaintiff's neck. He recommended conservative treatment.[15]
[15] PCB 84-86
39 Mr Wallace referred the plaintiff to Dr Lewis, rheumatologist. She saw Dr Lewis on four occasions between 8 April and 16 December 2003. Dr Lewis was not able to make a precise diagnosis of the source of the plaintiff's pain and limitation of movement affecting her neck and left shoulder. However, he recommended that she undergo a comprehensive multidisciplinary form of treatment.[16]
[16] PCB 87-92
40 Dr Lewis referred the plaintiff to Dr Varigos, physician. She first saw him on February 2004. She last saw him on 27 October 2008. Dr Varigos prescribed the plaintiff Endep for the purpose of treating her pain, depression and the interference with her sleeping pattern. He also undertook radio-frequency denervation to block the left facet joints at C3-T1.
41 The plaintiff described the radio-frequency denervation as very beneficial. It has not removed all of the pain she experiences in her left shoulder, but has made the pain more tolerable. She was due to undergo a further episode of that treatment, however, the defendants denied liability to pay for the treatment. The plaintiff is unable to pay for the treatment herself. There is presently a dispute which is yet to be resolved, relevant to whether the defendants should be made liable to pay for that treatment.[17]
[17] Transcript 38
42 Mr Wallace referred the plaintiff to Mr Richardson, orthopaedic surgeon. She saw Mr Richardson on 26 September 2005, 20 October 2005, 31 May 2007 and 6 September 2007. The plaintiff told Mr Richardson that she had ongoing pain in her left shoulder, the pain was significant at night, and she was unable to undertake vacuuming and overhead activities.
43 On 26 September 2005, Mr Richardson injected the plaintiff’s left shoulder with local anaesthetic and Depo-Medrol. He referred her to have an MRI scan, which was undertaken on 3 October 2005.[18]
[18] PCB 149.1
44 On 20 October 2005, Mr Richardson was of the opinion that the MRI scan showed subacromial bursitis with no full thickness tear of the rotator cuff. He injected her left shoulder again, and discussed the prospect of undertaking surgical decompression of her left shoulder.
45 On 31 May 2007 and 6 September 2007, Mr Richardson injected the plaintiff’s left shoulder again. He noted that the plaintiff had experienced some improvement after having the injections.
46 Throughout the episodes of treatment which I have recounted above, the plaintiff has had periodic physiotherapy treatment, and treatment from an osteopath. Additionally, she has been prescribed medication to treat her for the physical pain she experiences and for depression.
47 At present the plaintiff continues to see Dr Petrovic and Dr Varigos. Dr Petrovic prescribes the plaintiff painkilling medication. Dr Varigos provides the plaintiff with acupuncture treatment.[19]
[19] Transcript 19-20
The Application against Franklins
48 I need spend very little time dealing with the plaintiff's application against Franklins.
49 Mr Ruddle quite properly conceded that there was little or no evidence to prove that the plaintiff suffered a compensable injury during the period she was employed by Franklins post 20 October 1999.
50 The plaintiff said that post 20 October 1999 she worked in the kiosk undertaking the light duties. It was not work which required her to repeatedly use her arms in an outstretched or in an elevated position.[20] She was able to cope with those duties to the extent that she had no cause to make any complaint about the tasks she was required to undertake.[21] Indeed, the plaintiff said that had she would have been capable of continuing to undertake those light duties.[22]
[20] Transcript 27-28
[21] Transcript 29-30
[22] Transcript 30
51 Furthermore, it was clear to me that the plaintiff was capable of undertaking those light duties despite being under active medical treatment.[23]
[23] Transcript 29
52 The plaintiff had been undertaking those light duties since about July 1998 with no alteration in those duties of any kind. It was clear to me that whatever impairment of function that the plaintiff was suffering in her neck, left shoulder and arm post 20 October 1999, was a continuation of the very same impairment of function which she had suffered since 1998 when she first suffered the onset of the injuries to her neck, left shoulder and arm.
53 Although there was some medical support for the proposition that the injuries to the plaintiff's neck, left shoulder and arm had been aggravated by her work with Franklins post 20 October 1999, it was based upon an assumption by the medical practitioners who gave those opinions that it was the plaintiff's case that the light duties were an aggravating factor. A proposition denied by the plaintiff.
54 Furthermore, the medical evidence fell dramatically short of proving that there was some pathological change in the condition of the plaintiff's neck, left shoulder and arm materially contributed to by her work with Franklins post 20 October 1999.
The Application against Coles
Causation
55 Mr McTaggart conceded that the injury to the plaintiff’s left shoulder had been aggravated by the work she undertook with Coles between October 2001 and April 2002.
56 However, Mr McTaggart submitted:
• That there was no persuasive medical evidence demonstrating the extent of the aggravation. • That there was no persuasive evidence that the impairment of function of the plaintiff’s left shoulder resulting from the aggravation was permanent. • That overall the plaintiff's evidence and the medical evidence did not demonstrate that the consequences of the impairment of function of the plaintiff’s left shoulder were at least very considerable.
57 Furthermore, Mr McTaggart submitted that there was little or no persuasive evidence from the plaintiff, nor in the medical evidence, to demonstrate that the plaintiff had suffered an aggravation of the injury to her neck, or that it impaired the function of her neck, or if it did that the impairment was permanent, or that consequences of the impairment were at least very considerable.
58 Mr Ruddle submitted that the plaintiff did suffer an aggravation of the injury to her neck. However, he did not concede that the impairment of the function of the plaintiff's neck did not have consequences which were at least very considerable, however, it did not appear to me that he seriously pressed that the consequences of the impairment of the plaintiff's neck were least very considerable.
The Degree of Aggravation
59 Mr McTaggart submitted that the medical evidence which pre-dated the plaintiff's employment with Coles demonstrated amply that the impairment of the function of the plaintiff’s left shoulder from 1998 was significant.
60 I accept that submission. It is very clear from the chronology of the medical treatment obtained by the plaintiff that up until October 2001 the plaintiff had an established injury to her left shoulder which was resistant to conservative treatment.
61 It was Mr Wallace's opinion, as far back as April 2000, that it was highly unlikely that her complaints of pain in her left shoulder would settle without surgical intervention. The plaintiff described the level of pain she was experiencing as at April 2000 as severe.[24]
[24] PCB 71
62 The debate about the extent of the aggravation of the injury to the plaintiff’s left shoulder and the consequent impairment of function centred around what I should make of the opinion of Mr Wallace expressed in a report dated 1 June 2009 commissioned by the plaintiff's solicitors.
63 In answer to a question, which I assume was intended to draw Mr Wallace's attention to the extent of the aggravation,[25] he said:
"I believe the work Mrs Grgic performed between October 2001 and April 2002 (whilst working for Bi Lo) and specifically the heavy work performed while stocking shelves in February 2002 and April 2002, significantly contributed to the aggravation and acceleration of Mrs Grgic’s thoracic outlet syndrome and intrinsic shoulder pathology. I believe without the aggravation she would have had symptoms but these would have been of less severity, and the events of 2002 I think are a major contribution to her ongoing troubles."[26]
[25] The letter was produced by Mr Ruddle as a result of Mr Middleton calling for its production, but it was not tendered in evidence
[26] PCB 83.1
64 Mr McTaggart submitted that it was for the plaintiff to not just prove that she had suffered an aggravation of the injury to her left shoulder with a resultant impairment of function, but to establish the extent that the aggravation produced consequences that were at least very considerable.
65 Mr McTaggart submitted that the opinion of Mr Wallace fell well short of quantifying the aggravation, the degree of impairment of function and the consequences.
66 I do not accept that submission. I do not know what else a medical practitioner can do beyond using words and expressions of the kind used by Mr Wallace to qualitatively and quantitatively describe the nature and extent by which a pre-existing injury has been aggravated.
67 It is clear enough to me that Mr Wallace firstly used the expression "significantly contributed" for the purpose of making a causal connection between the duties which the plaintiff undertook with Coles and the aggravation which he contends resulted from the plaintiff undertaking that work.
68 It is also clear enough to me that Mr Wallace endeavoured to demonstrate, qualitatively and quantitatively, the extent of the aggravation by saying that if the aggravation had not occurred her symptoms would "have been of less severity", and furthermore, the use of the expression "major contribution" seems to me to be an expression used by him not only to emphasise the causal connection, but to describe the degree of the insult to the plaintiff’s left shoulder resulting from the aggravation.
69 The plaintiff described the duties she performed which resulted in the aggravation as follows:
"She instructed me to return my money draw to management and consistently perform an able-bodied task of pushing trolleys laden with merchandise around the store and replenishing the shelf stock. This necessarily meant considerable reaching up and bending down in order to position merchandise of varying weights and dimensions."[27]
[27] PCB 23
70 As a result of being required to perform those duties, the plaintiff said that within a day or so she informed her team leader that those duties were causing her considerable physical discomfort.[28]
[28] PCB 23,24 and 25
71 Mr Ruddle submitted that if I accepted the opinion of Mr Wallace and the evidence of the plaintiff that she was quite capable of performing her light duties until her duties were changed, then that of itself was a matter of significance in terms of a consequence to the plaintiff, that is, that the aggravation of the injury to her left shoulder and a further impairment of function of her left shoulder which led to the cessation of her employment with Coles, and her unemployment over the next four years before she was able to return to work.
72 Furthermore, Mr Ruddle submitted that during her cross-examination the plaintiff gave extensive evidence of the consequences she suffered resulting from the aggravation of the injury to her left shoulder and the further impairment of the function of her left shoulder.
73 The plaintiff said that the pain she experienced from April 2002 and up to the present time is worsening.[29] When she was asked whether the symptoms that she now experiences are the same as those she was experiencing in 1998, she said that the symptoms were not the same and that they worsened after she commenced employment with Coles.[30] When she was asked to describe the difference in the pain she experienced after April 2002, she said:
"Up until February 2002, I was managing my pain with medication, with physiotherapy treatment on and off, and I was a bit better. I was, you know, good to go and come back to with the light duties, but after February 2002 and April 2002, the pain become constant, up until I get really heavy medication, and like - I knock myself out to the point that I am not all there. That's how I see, and that's constant, it's ongoing. I had a treatment, treatment gives me a bit of relief, manageable, period of time; and as soon as I have no medications or treatment, that's really worse pain that was before of 2002."[31]
(sic)
[29] Transcript 20
[30] Transcript 38
[31] Transcript 40
74 The foregoing is essentially the way in which the plaintiff presented her application against Coles. It was largely based upon the evidence of Mr Wallace, and more particularly, his opinion that the thoracic outlet syndrome had been aggravated by the duties the plaintiff undertook with Coles.
A Musculo-ligamentous Injury As Well?
75 Mr Ruddle submitted that the plaintiff had not only suffered an aggravation of the thoracic outlet syndrome, but also an aggravation of the musculo- ligamentous structures of her left shoulder.
76 Mr Ruddle submitted that the medical evidence demonstrated that from the time of the onset of pain in the plaintiff’s left shoulder in 1998 she was treated for a left shoulder injury, and even after Mr Wallace made a more specific diagnosis of a thoracic outlet syndrome, she continued to be treated by other medical practitioners for an injury to her left shoulder.
77 I accept that submission. Dr Horvat considered that the plaintiff had suffered a musculo-ligamentous injury to her left shoulder which was no doubt the reason why he referred her to have an ultrasound. His account of the treatment by Mr Shimmin is that Mr Shimmin considered that the plaintiff had suffered from rotator cuff tendinitis and some bicipital tendinitis.
78 Mr Wallace was obviously concerned to know whether there was some other cause for the plaintiff's continuing complaints of pain in her left shoulder. He not only referred the plaintiff to have an MRI scan to discount the neck as the source of her pain, but referred the plaintiff to Mr Richardson to seek his opinion whether there was some other cause for the pain in her left shoulder.
79 Mr Richardson was of the opinion that the plaintiff did have a problem with her left shoulder which required active treatment, and hence the reason why he injected her left shoulder on several occasions. He formed the opinion, that clinically and radiologically, there was pathology which might be ameliorated by a subacromial decompression undertaken surgically.
80 Mr Ruddle submitted that I could infer that the conclusions reached by Mr Richardson were consistent with the musculo-ligamentous injury which Dr Horvat and Mr Shimmin treated, and that it was also aggravated by the duties the plaintiff was required to undertake with Coles.
81 Mr Ruddle relied upon the opinion expressed by Mr Richardson in a report dated 27 May 2009 to support the submission that the plaintiff had suffered an aggravation of the musculo-ligamentous injury to her left shoulder.
82 The opinion expressed by Mr Richardson in his report dated 27 May 2009 is somewhat cryptic. It is obvious that he was asked to comment on whether the plaintiff's employment with Coles was likely to have aggravated the injury to her left shoulder. In answer, he said:
"Heavy work performed, in particular overhead activities such as stocking shelves in February 2002 through to April 2002 could certainly exacerbate shoulder problems and shoulder pathology."[32]
[32] PCB 102.1
83 Firstly, there is really no doubt that the plaintiff suffered an injury to her left shoulder which was the subject of a specific diagnosis by Mr Wallace, but the thoracic outlet syndrome which he treated was not the only pathology evident in the plaintiff’s left shoulder. I infer that Dr Horvat and Mr Shimmin did not treat the plaintiff for the thoracic outlet syndrome, but for a musculo- ligamentous injury.
84 Secondly, the fact that Mr Wallace referred the plaintiff to Mr Richardson probably occurred because Mr Wallace was concerned that the surgery he performed to ameliorate the thoracic outlet syndrome had had only relieved the plaintiff of some of her left arm and hand symptoms, and not the symptoms she was experiencing in her left shoulder.
85 The foregoing leads me to conclude that the plaintiff probably suffered a musculo-ligamentous injury to her left shoulder which required the treatment provided by Dr Horvat and Mr Shimmin, and despite the focus of Mr Wallace on treating the thoracic outlet syndrome, the musculoligamentous injury persisted, and was the very condition which Mr Richardson was later asked to assess and treat.
86 Mr McTaggart submitted that the assessment made by Mr Richardson was coincidental and unrelated to the original injury suffered by the plaintiff in 1998. I reject that submission for the reasons outlined above.
87 Mr McTaggart also submitted that the language used by Mr Richardson in expressing an opinion on causation was cryptic and fell well short of an expression of opinion which I should rely on to conclude that the musculoligamentous injury he referred to was the same musculoligamentous injury treated by Dr Horvat and Mr Shimmin. I also reject that submission for the reasons outlined above.
A Permanent Aggravation?
88 Mr McTaggart submitted that the plaintiff had failed to discharge the onus she bears to prove that the impairment of the function of her left shoulder produced by the aggravation of that injury during her employment with Coles was permanent.
89 It is true that neither Mr Wallace nor Mr Richardson expressly referred to whether the aggravation on which they were asked to comment was permanent or not, however, for a judge to conclude that an impairment is permanent is not reliant upon a medical witness using the word "permanent" in order to arrive at a conclusion that the impairment is permanent.
90 Applications of this kind are not a trial by the medical profession. The opinions of the medical practitioners form part of the evidence on which a trial judge is required to make the relevant value judgment.
91 At the time when Mr Wallace expressed his opinion in his report dated 1 June 2009, and at the time when Mr Richardson did the same in his report dated 27 May 2009, the plaintiff had been suffering from symptoms of the aggravation for a considerable number of years.
92 Dr Petrovic was cross-examined by both Mr Middleton and Mr McTaggart. She was of the opinion that the aggravation was permanent. Both Mr Middleton and Mr McTaggart attacked the substance of that opinion, submitting that the manner in which Dr Petrovic gave evidence was very unsatisfactory.
93 I do not intend to rehearse the way in which Dr Petrovic gave her evidence, but I accept part of the submission made by Mr Middleton and Mr McTaggart, that the manner in which she did give her evidence was very unsatisfactory.
94 Dr Petrovic appeared to me to be unprepared when she gave her evidence, to the extent that she could not find materials in her files in order to answer questions put to her or merely repeated the opinions which specialists had arrived at by either reading or simply repeating those opinions derived from correspondence which she took from her files.
95 On a number of occasions Dr Petrovic refused to countenance questions put to her which potentially undermined the plaintiff's case, that employment with Franklins and Coles had not aggravated her left shoulder injury. Rather than answering the questions in a direct way, she became something of an advocate for the plaintiff and was often argumentative.
96 However, and despite my misgivings about the reliability of Dr Petrovic's evidence, she is in a peculiar position, as submitted by Mr Ruddle, in that she has treated the plaintiff for a long time and has had the opportunity to observe the plaintiff, hear her complaints of pain and reach conclusions regarding the treatment which the plaintiff requires.
97 The plaintiff was examined by Mr Brearley, orthopaedic surgeon, on 13 July 2006[33] and again in July 2008.[34] His opinion is of no assistance. He made no useful comment in relation to the plaintiff's employment with Coles.
[33] PCB 103-109
[34] PCB 110-115
98 The plaintiff was examined by Mr Khan, orthopaedic surgeon, on 4 August 2008. He obtained a history of the plaintiff's allegations that she suffered an aggravation of the injury to her left shoulder in her employment with Coles. He described the aggravation as a flare-up.[35] He did not subsequently say whether the flare-up had caused symptoms over and above those which pre- existed, and whether those symptoms persisted.
[35] PCB 126
99 Therefore, the question of whether the impairment of the plaintiff’s left shoulder caused by the aggravation through her work with Coles was permanent must be determined by an analysis of the evidence of Mr Wallace, Mr Richardson, Dr Petrovic, and, of course, the evidence of the plaintiff.
100 It is obvious that the plaintiff says that she has suffered increased symptoms as a result of her employment with Coles. It is also obvious that Mr Wallace is of the opinion that the aggravation caused by that employment was material to the condition of her left shoulder, as it is now.
101 The conclusion I have reached is that whether an impairment of function is permanent or not does not necessarily require a medical practitioner to express an opinion using the word "permanent" for that medical practitioner’s evidence to demonstrate that the impairment is permanent.
102 The fact that there were increased symptoms in the plaintiff’s left shoulder with medical support for the proposition that there was an aggravation of the injury, and hence an increased impairment of function, is a relevant starting point.
103 The fact that the plaintiff has given evidence that the increased impairment of function with the increased consequences, is evidence of the persistence of consequences directly flowing from the aggravation of the injury to her left shoulder.
104 The increased consequences were then the subject of treatment by Dr Petrovic. I accept her evidence that she has treated the plaintiff for a considerable period of time by way of prescription of medication, and is in a position to describe the pain and disablement which she has observed.
105 It seems to me that a strong inference can be drawn from the plaintiff's evidence that she has experienced increased symptoms as a result of the increased impairment of function of her left shoulder, and when the opinion of Mr Wallace is added together with the observations of Mr Richardson of an actively symptomatic left shoulder, and the evidence of Dr Petrovic, which I am prepared to accept, that the impairment of function of the plaintiff’s left shoulder resulting from the aggravation through her employment with Coles, bears all the characteristics of being permanent.
Pain and Suffering
106 I have summarised the plaintiff’s evidence in paragraph 73 above relevant to of the increased impairment of function in her left shoulder. I accept the plaintiff’s evidence.
107 Both Mr Middleton and Mr McTaggart submitted that when a long-distance view is taken of the plaintiff’s evidence and the medical evidence from 1998, that the plaintiff is now suffering the very same consequences that were inevitably likely to flow from the injury which she suffered in 1998.
108 I do not accept that submission. Mr Ruddle submitted that the clear difference is that the plaintiff was able to capably undertake light duties with Franklins until she was required to undertake normal duties by Coles. He submitted that she had a capacity for full-time employment on those light duties, but then lost that capacity as a result of the aggravation of the injury to her left shoulder until she was able to secure employment on 27 March 2006 with Centrelink as a customer service officer.
109 It occurs to me that the aggregate effect of the evidence of Mr Wallace and Dr Petrovic is that there was a palpable change in the plaintiff’s symptoms following the aggravation of the injury to her left shoulder.
110 I accept the plaintiff’s evidence that the consequences to her of a further impairment to the function of her left shoulder made it increasingly difficult for her to engage in domestic, social and recreational activities in addition to the consequences of the initial injury which occurred in 1998.
111 Both Mr Middleton and Mr McTaggart also submitted that essentially the plaintiff’s symptoms had been managed by injections, medication and the radio frequency denervations. The plaintiff candidly admitted that the radio frequency denervations have made her symptoms manageable.
112 There are two reasons why I reject the submission made by Mr Middleton and Mr McTaggart that the partial amelioration of the plaintiff’s symptoms militate against a finding that the consequences to her are at least very considerable.
113 Firstly, the radio frequency denervations were symptomatic treatment. They were not curative of the underlying condition. The good effect experienced by the plaintiff eventually wore off.
114 Secondly, the plaintiff may not be able to have any further radio frequency denervations because one or both of the defendants has refused to pay for the cost of any further such treatment. The plaintiff said that she is not in a position financially to be able to pay for them herself.[36]
[36] Transcript 39
115 It seems to me that periodic symptomatic treatment which might ameliorate symptoms, but is not curative, may impact upon whether the consequences are at least very considerable. However, I do not accept that it does in this case. I accept the plaintiff's evidence that the injections and the radio frequency denervations reduced her symptoms, but those symptoms returned when the good effect of the injections and the radio frequency denervations wore off.
116 Both Mr Middleton and Mr McTaggart submitted that the fact that the plaintiff is now working full time militates against a finding that the consequences of the further impairment of function of her left shoulder is at least very considerable.
117 The plaintiff worked with Centrelink in March 2006 in customer service. Additionally, she works teaching Croatian to young children, and has done so since about March 2008. She works three hours on a Saturday. The work the plaintiff performs is light work.[37]
[37] PCB 12-13 and 25
118 The plaintiff has undertaken the work just described despite suffering the increased impairment of function of her left shoulder and experiencing more pain.
119 The fact that the plaintiff is now working must mean that she has a level of pain which she is able to tolerate in order to undertake her work. However, that does not necessarily mean that the pain is not as significant as the plaintiff has described.
120 In Dwyer v Calco Timbers Pty Ltd (No 2),[38] Nettle JA observed, with some force, that would be wrongheaded if a plaintiff who is prepared to put up with pain and suffering and get on with his or her life should be treated less favourably than another, who was of less strength of character, and who has simply resigned himself or herself to an injury.
[38] [2008] VSCA 260
121 The question raised by the submissions made by Mr Middleton and Mr McTaggart is whether the work the plaintiff is undertaking is evidence of a degree of improvement inconsistent with the consequences of the impairment of function of the left shoulder being at least very considerable.
122 It occurred to me, while I watched the plaintiff give her evidence and weighed up the quality of her evidence, that she gave a good account of herself, and more importantly, gave evidence which struck me as being truthful. I have little hesitation in accepting her as a witness of truth and her evidence as being reliable.
123 Therefore, the conclusion I have reached is that the evidence demonstrates that when the plaintiff was required to undertake full duties she was coping well with her light duties. Indeed, had the aggravation not occurred she probably would have continued undertaking those duties.
124 The plaintiff subsequently lost her capacity to undertake those light duties until she retrained, and was eventually able to obtain work with Centrelink and as a teacher. Both jobs are undoubtedly light in the physical requirements called for in order for the plaintiff to successfully undertake them.
125 I accept the plaintiff’s evidence that she is in more pain and as a consequence her social, domestic and recreational pursuits are more difficult for her to undertake.
126 The plaintiff has continued to require medical treatment of a reasonably significant nature. I do not have much doubt that she would have required that treatment to some extent in any event had the aggravation not occurred, however, given that I accept that the plaintiff has suffered a further impairment of the function of her left shoulder with further consequences, it stands a matter of a reasonable logic that the additional consequences of pain and suffering would require additional treatment.
127 It is for these reasons that I conclude that the consequences to the plaintiff in terms of pain and suffering have all the characteristics consistent with the consequences being at least very considerable when a comparison is made with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
128 I am not persuaded that the alleged aggravation of the plaintiff’s neck injury is serious.
129 I will dispose to that part of the application briefly. Firstly, the major thrust of the plaintiff’s evidence and the medical evidence has focused in on the plaintiff's injury to her left shoulder. Secondly, the opinions relevant to the nature and extent of any aggravation to the plaintiff's neck are brief, subtle and very much on the periphery of the major focus of the evidence.
130 It is perhaps best demonstrated by the opinion of Mr Khan, who considered that the plaintiff had suffered from disc degeneration in her neck, and a flare- up of that disc degeneration with some narrowing of the disc at C5-6. Mr Khan was unable to differentiate between the extent to which the injury to the plaintiff's neck could be differentiated from the injury to her left shoulder.[39]
[39] PCB 126-127
Conclusions
131 The application against Franklins must be dismissed.
132 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with Coles.
133 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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