Grozdanovska v Bertocchi Smallgoods Pty Ltd

No judgment structure available for this case.

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-00097

ZORKA GROZDANOVSKA	Plaintiff
v
BERTOCCHI SMALLGOODS PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2011
DATE OF JUDGMENT:	25 May 2011
CASE MAY BE CITED AS:	Grozdanovska v Bertocchi Smallgoods Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 962

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Application pursuant to s.134AB(16)(b) Accident Compensation Act 1985 – lumbar spine - right shoulder – psychiatric impairment – pain and suffering – loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Lewis SC with	Patrick Robinson & Co
Mr M Ruddle
For the Defendant	Mr J Batten	Hall & Wilcox
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant in 2002 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4          The body functions relied upon in this application are the lower back and the right shoulder.
5          The plaintiff also claims a severe permanent behavioural or mental disorder pursuant to subsection (c).
6          The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
7          Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

Outline of Section 134AB
(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii)        The impairment of the body function must be permanent;
(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of the hearing as being “at least very considerable” and more than “significant” or “marked”;
(v)        I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi)       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii)      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii)     Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix)       Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x)        I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602 in reaching my conclusions.

8 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence
9          The plaintiff is a married woman presently aged sixty four, having been born on 19 February 1947 in Macedonia. The plaintiff’s son and daughter-in-law and their three children aged under ten live with the plaintiff and her husband.
10        The plaintiff went to school for eight years in Macedonia and married in 1968.
11        The plaintiff’s husband came to Australia in 1968 and she followed the following year, during which time their first child was born. For about six months, the plaintiff worked in a textile factory where her husband also worked.
12        The plaintiff’s family returned to Macedonia between 1972 and 1994, at which time she did not work and their second child was born.
13        When the plaintiff and her husband returned to Australia in 1994, her husband obtained work with the defendant. The plaintiff also obtained work with the defendant, initially as a casual, and she was then made permanent, full time in early 1995.
14        In the late 1990s, the plaintiff’s husband injured his back at work and he was put on light duties for a time. He then had to stop work all together. The plaintiff’s husband last worked for the defendant in the late 1990s and received a settlement in relation to his back claim.
15        As a result of her husband’s back injury, the plaintiff was exposed to rude and aggressive behaviour from fellow workers. They called her and her husband lazy and good for nothing. Whilst her husband had stopped work, the aggressive behaviour continued towards the plaintiff and she always felt as though she was hated because of his injury.
16        The plaintiff’s duties with the defendant involved her doing a number of tasks. She had to stand and thread salami into a machine. At other times she had to operate the press to press the meat. She was also involved in packing duties.
17        The plaintiff deposed that overall the job was heavy, physical work. In removing the meat there was a lot of bending involved, moving it from containers to benches. The plaintiff also had to do cleaning work and even the lighter jobs of packing products between two and five kilograms required repetitive movements and bending.
18        The plaintiff was cross-examined at some length as to the precise nature of her duties and the weights of various smallgoods she was required to handle. The plaintiff agreed that an individual item would weigh no more than two and a half kilograms, but at times she had to handle multiple items at the one time.
19        From about five or six months prior to 2002, the plaintiff noticed some back pain but in early that year it became more troubling for her and she saw Dr Ristevski in February 2002.
20        For the following months the plaintiff pushed herself to work taking tablets, mainly Celebrex, Panadeine Forte and Panama prescribed by Dr Ristevski. No time off work was suggested and she continued her normal duties.
21        The plaintiff kept working with increasing low back pain and, to a lesser extent, her right shoulder was also giving her pain when reaching or lifting or sweeping in particular. The plaintiff did not report her injury because she was already fearful of the behaviour towards her since her husband’s injury and she was worried about keeping her job.
22        In cross-examination the plaintiff confirmed that she did not complain of any injury to the defendant before she stopped work because she was too afraid to tell the owner. She said:
“I would witness how my husband would be abused, how they would yell at him and then the way that they would treat us and I was afraid of losing my job.”

23        The plaintiff deposed that she returned to Dr Ristevski about her back pain and discussed with him whether she should continue to work or not. At that time he thought her back pain may be due to kidney stones and he sent her for a test. Following her discussion with Dr Ristevski, the plaintiff decided to stop work. The plaintiff told him she could not work as she had pain in the lower back.
24        The plaintiff did not lodge a WorkCover claim at that time because she was not sure what was causing her back pain and she was fearful given her husband’s experience with WorkCover.
25        In cross-examination, the plaintiff said that she had gone for some tests because of low back pain and they found kidney stones and she was advised of the need for surgery which she later undertook with Mr Cleeve.
26        In cross-examination, the plaintiff explained the kidney stones were on the right side and the majority of her pain in the lower back was on the left.
27        When it was suggested to her in cross examination that in late May 2002 her pain was from the stones, the plaintiff said that was not correct.
“They have said it’s not because of the kidney stones. It is from my work.
It was hurting then, it is hurting her now.”

28        The plaintiff did not think that she had a stomach x-ray organised by Dr Ristevski in late May 2002. She went for tests for her lower back pain, not a stomach x-ray.
29        In cross-examination, the plaintiff agreed that in mid to late May 2002 she gave notice of resignation to the defendant to be effective from 30 May 2002. She stopped work very quickly after that time. The plaintiff denied she never intended to go back to work with the defendant. If she could have, she would have returned to work but she could not work because of her pain.
30        The plaintiff then said she did not give notice. She stopped working as she could not work anymore because of the pain in her lower back:
“I was even supposed to have an operation. I just couldn’t work any
more.”

31        The plaintiff then confirmed she had told the defendant she had stopped work because of her back pain and her shoulder as well. She was still working with the kidney stone and knew she had problems with the kidney stone before she stopped work. She did not go for tests because of pain in her kidney area. The stones were found on the testing. It was her lower back she was complaining about.
32        In cross-examination, it was suggested to the plaintiff that she stopped work when she found out about the kidney stone. She said that was wrong. She could not work because of the lower back pain. There were salamis that she had to thread and weave through a machine and she had to bend down and she could not do these jobs because the pain in her back was hurting her.
33        Following the surgery for the kidney stones, the plaintiff’s back pain did not resolve and she underwent further tests. She had low back pain on both the left and right side, although the left was worse, and she was suffering some left leg pain. She was also having increasing problems with her right shoulder.
34        In September 2002, the plaintiff had an MRI scan of her lower back, which she was advised showed damage to the discs. Dr Ristevski continued to prescribe the plaintiff medication for pain relief.
35        In August 2003, Dr Ristevski arranged an ultrasound of the plaintiff’s right shoulder which she was advised showed a tear in the tendon.
36        The plaintiff was referred to Jointcare who taught her exercises to assist with her level of activity and to increase her muscle strength. She was given a walking program and an exercise ball. Chiropractic treatment was recommended, as well as hydrotherapy, but the plaintiff was uncomfortable in the water and that was of no benefit to her.
37        The plaintiff was referred by Dr Ristevski to a specialist, Mr Mangos, in 2005 after the Jointcare program did not provide any significant help in relieving her pain. The plaintiff had a second MRI scan in August 2005. Mr Mangos advised the plaintiff that her leg and back pain were unlikely to be helped by surgery. Further, he did not recommend any surgery to her shoulder.
38        Following the second MRI scan, Dr Ristevski sent the plaintiff for a second opinion, to Mr Barrett, orthopaedic surgeon, whom she saw on 24 November 2005. Mr Barrett advised the plaintiff that the difficulty she had from time to time with her left leg was caused by her back. Further, she was advised her symptoms were likely to continue and were unlikely to improve much. Mr Barrett suggested the way to manage her injury was to watch what she did. Mr Barrett did not discuss the plaintiff’s shoulder with her.
39        It was not until 2006, when there had been no improvement, and after both Mr Barrett and Mr Mangos told the plaintiff she was unlikely to work again, that the plaintiff submitted a WorkCover claim.
40        This claim for WorkCover was rejected because it was lodged late. The rejection was disputed and the plaintiff lodged an impairment benefits claim in respect of her back and right shoulder injury which was accepted.
41        Dr Ristevski prescribed tablets for anxiety, but he felt that was insufficient to treat the plaintiff properly. In 2009, the plaintiff was referred to psychiatrist Dr Wahr because she was always anxious and depressed about her pain and limitations.
42        At the time she swore her first affidavit in September 2009, the plaintiff took two types of tablets for anxiety. She also took Celebrex, Panamax, Panadeine Forte and sometimes used Voltaren cream. She saw Dr Ristevski and Dr Wahr regularly and she continued to do the exercises she had been shown.
43        The plaintiff has never received any rehabilitation or retraining from WorkCover. She deposed she had only ever worked with the defendant and had not even thought she could do any other sort of work. In cross- examination, the plaintiff said, however, she had worked in a textile factory when she was first in Australia.
44        The plaintiff obtained her job with the defendant because her husband worked there. She deposed she would not know how to start looking for work or what sort of work she could look for.
45        The plaintiff was initially in receipt of unemployment benefits after ceasing work and then after some time was changed to a Disability Support Pension. She might have applied for an Invalid Pension before she put in her compensation claim. She is now in receipt of an Age Pension.
46        The plaintiff speaks very limited English and has almost no ability to read or write in that language but is a bit more literate in her own language. At no time has she undertaken any literacy or language course. She speaks Macedonian to her family, including her grandchildren.
47        As of September 2009, the plaintiff had difficulty with sitting or standing for long periods and around that time, she had trouble walking as the lower back pain and pain down her leg was more severe.
48        The plaintiff was then often woken by pain and at night found it difficult to get a comfortable position to sleep in. Her marital relations had also been affected by both her own injuries and her husband’s.
49        The plaintiff used to enjoy extended family and Macedonian community functions but no longer did so. She had almost stopped going to family functions and then had to push herself to get to the more important ones.
50        In cross-examination the plaintiff confirmed that from the time she has become ill, she has not gone out very much at all, very rarely. If it is something very important, she will go out. She does not have much will to go out.
51        Recently the plaintiff went out for dinner when taken by her children. It was a happy occasion and she was happy being with them but she “had lost hope and did not think her life was worth much.”
52        In re-examination, the plaintiff said she had been to one family function in the last year. In that time there would have been maybe ten or more functions she did not go to at various places. She did not go because she could not sit around there; her back hurt, she was nervous, she felt stressed and she was depressed.
53        The plaintiff had difficulty dressing and described bending to put on her stockings being painful for her back. Reaching to brush her hair was difficult if she used her right hand as normal.
54        The plaintiff had left leg pain and numbness at times. When that was very bad, she felt like her leg was giving way and at times she limped. The plaintiff walked when she could on her doctor’s advice but on the days when her left leg played up, she generally did not do much walking if she could avoid it.
55        The plaintiff deposed she was fortunate to have a supportive family. She was often tearful at the thought of being a burden to them. She used to feel like she was the centre and rock of the family and they were her joy and the centre of her life, but she no longer feels this way.
56        The plaintiff swore a further affidavit on 18 April 2011 confirming that since her earlier affidavit she had continued to see Dr Ristevski regularly for her injuries and she takes Avanza and Xanax for mental problems.
57        The plaintiff also takes Celebrex for her lower back and shoulder pain and also Panamax and Panadeine Forte, one tablet a day for both conditions in the morning. The medication does not really help and “might temporarily calm things” but she has pain all the time, some days worse than others. The tablets help a little bit sometimes but on other occasions she has severe pain and she takes more tablets especially Panamax, sometimes taking six tablets.
58        It is the plaintiff’s lower back in particular that is severe and the pain in her leg. When she still tries to lift her shoulder upwards it is very painful as well. Although she thought both injuries were bad, the back and leg conditions remained worse than the shoulder.
59        In cross examination, the plaintiff said that her back hurt more since stopping work, and sometimes the pain is worse. It is painful if she sits too long.
60        The plaintiff has not returned to work and she does not believe she would have or will have any work capacity.
61        If the plaintiff could work elsewhere, she would try but she cannot because of her pain. She confirmed she would not know what sort of a job to look for or where to look for work. She is not capable of working and Centrelink did not think she could work.
62        The plaintiff denied that she was retired; she was being paid by Centrelink. She had not registered with a job agency or received any assistance from her family to look for work.
63        Since seeing Dr Wahr there had been some improvement in the plaintiff’s mental condition although that was only slight. Dr Wahr talks to her as well as prescribing medication. He told her to mix with people and to communicate with them. She cannot put up with doing that. He tells her to get out as much as she can to get out and about.

64         The tablets the plaintiff takes affect her memory. She feels anxious and depressed constantly and it is so bad at times that she cries. She is forgetful, angry and irritable. Every day things like dressing and doing her hair are difficult for her, causing a lot of frustration.
65        Sleep continues to be a problem for the plaintiff and she lacks energy. She feels humiliated that she has to rely on her family to do things which she previously did without difficulty. She feels useless, guilty and a burden on others and has lost confidence. She is withdrawn and only goes out to functions when she has to.
66        The plaintiff’s son and daughter-in-law both work all day and the plaintiff and her husband look after the children when they are not at school or kindergarten. The plaintiff does not have a licence and her husband picks up the children and takes them to school. The plaintiff does not do a lot of shopping and her family members do it.
67        The plaintiff’s son drives her wherever she needs to go as she has never had a licence. She is reliant on her son and daughter-in-law for help at home.

Lay Evidence
68 The plaintiff’s husband, Tome Grozdanovski, swore an affidavit on 18 April 2011 confirming the plaintiff’s affidavit.

Treaters
69        The plaintiff first presented to the Barry Road Medical Clinic where she saw Dr Ristevski in relation to lower back pain on 11 February 2002.
70        The plaintiff re-presented on 27 May 2002 complaining of predominantly left sided lower back pain and she was referred for an x-ray of her abdomen and a large left kidney stone was diagnosed. She was then referred to Mr Cleeve, urologist, for treatment of that condition.
71        The plaintiff told Dr Ristevski she developed a gradual onset of lower back pain and right shoulder pain whilst working with the defendant, with her symptoms worsening during 2002, and that she retired from working there during the same year.
72        Dr Ristevski noted the plaintiff was diagnosed with a large left kidney stone and despite the stone causing back and loin pain, she had features in relation to her back that suggested there was a component also related to spinal pathology, including pain going down her left leg.
73        The plaintiff was referred for a lumbar MRI scan in September 2002, which Dr Ristevski thought showed significant spinal pathology.
74        The plaintiff complained of increasing right shoulder pain with limitation in movements, particularly abduction, and she was referred for an ultrasound in August 2003 which showed a full thickness tear.
75        The plaintiff was treated conservatively but the symptoms and disability persisted. She was not keen on hydrotherapy and was advised on a home based exercise program.
76        The plaintiff was referred to Mr Mangos in January 2005 because of her persistent and disabling symptoms. He thought she had a significant disability of the spine and shoulder and recommended conservative treatment and that the plaintiff pursue a Disability Support Pension. He was also supportive of her lodging a WorkCover claim, noting Dr Ristevski had mentioned the plaintiff was initially reluctant to do so owing to her husband’s bad experience.
77        Dr Ristevski noted, owing to persistent lower back pain radiating to the left leg and limitation in spinal movement and persistent right shoulder pain, the plaintiff reconsidered her position and decided to proceed with a WorkCover claim during April 2006.
78        Dr Ristevski concluded the plaintiff presented with right shoulder pain secondary to a full thickness tear of the anterior supraspinatus, subdeltoid bursal distension and fluid in the bicipital sheath. She also presented with lower back pain radiating along the left leg secondary to a large osteophyte at L2-3 on the left, along with some intervening disc protrusion impinging upon the upper PSOAS muscle and disc lesions at L3-4 and L4-5 with narrowing and impingement upon the neural exit foraminae.
79        As of October 2006, Dr Ristevski thought the plaintiff had no employment capacity. He considered that she remained significantly disabled in relation to both her right shoulder and back. Noting that there had been no improvement in either condition over the past four years, he thought her prognosis then was poor.
80        When seen in mid August 2008, the plaintiff continued to complain of ongoing lumbar pain and left lower limb radiculopathy. She also experienced ongoing disability in relation to her right shoulder and conservative treatment was continuing.
81        Dr Ristevski then thought the prognosis was unfavourable and that chronic pain was likely to continue in the long term. He thought the plaintiff was likely to suffer from long term disability in relation to her lumbar spine and right shoulder and that she was permanently unfit for all work. He considered that she was suffering from significant pathology in both areas, likely to have been contributed to or aggravated by the nature of her work with the defendant.
82        Dr Ristevski reported in 2010 that the plaintiff complained of sleeping difficulties and increasing anxiety and depressive symptoms secondary to her chronic pain and suffering. These symptoms worsened during late 2009 and 2010 and the plaintiff was referred to Dr Wahr.
83        When seen on 7 June 2010, the plaintiff complained to Dr Ristevski of ongoing lumbar pain and left lower limb radiculopathy. She experienced ongoing disability in relation to her right shoulder. Sleeping and psychological symptoms had improved with medication, and conservative treatment continued. He thought the plaintiff then had no capacity for work and she was significantly disabled in relation to both injuries. He considered the plaintiff had also developed secondary psychiatric symptoms.
84        Dr Ristevski last reported on 22 February 2011 at which time the plaintiff complained of ongoing lumbar pain and left lower limb radiculopathy. She experienced ongoing disability in relation to her right shoulder. Sleeping, anxiety and depression improved with medication. Conservative treatment was continued and the plaintiff continued to be followed up by Dr Wahr.
85        Dr Ristevski thought the plaintiff was likely to require ongoing conservative treatment and psychiatric and orthopaedic follow up. The prognosis, in his view, was unfavourable, noting chronic pain was likely to continue in the long term. He considered that the plaintiff’s secondary psychiatric symptoms required ongoing treatment.
86        Dr Ristevski concluded the plaintiff was significantly disabled in relation to both injuries. She had developed secondary psychiatric symptoms. As a consequence, the plaintiff was limited in her enjoyment of life and activities of daily living. He thought she was totally and permanently incapacitated for work. He confirmed her prognosis was poor.
87        The plaintiff attended a four month home based exercise program supervised by a Jointcare physiologist Ms Rozario, in 2004.
88        Ms Rozario noted that the plaintiff’s commitment to the program was inconsistent and her gains had been limited. The plaintiff was then still experiencing intense and debilitating pain in her lower back. She did not have a full range of right shoulder movement. It was noted even though her sitting, standing and walking tolerances had improved slightly, the plaintiff was unable to do those activities for longer than two hours at a time which would be required of her in any type of work. It was then recommended the plaintiff try a hydrotherapy program and that a pain management course with some psychological assistance to teach her not to focus on her pain may also be helpful.
89        It was noted at that stage the plaintiff had severe restriction with her right shoulder.
90        A physical assessment report was carried out by Jointcare on 3 December 2004. On testing, the plaintiff had poor lower body strength. She had difficulty walking and had pain walking up stairs. Also, she had severe restriction of movement of the right shoulder.
91        It was recommended that the plaintiff follow a home based program, noting she did not want to do hydrotherapy that had been suggested. It was also recommended the plaintiff receive some chiropractic treatment for her structural pelvis problem, namely that one leg was noticeably shorter than the other.
92        Mr Peter Mangos, general surgeon, wrote to the Department of Invalid Pensions in January 2005. He advised the plaintiff stopped work two years ago and six months before she stopped, she began getting symptoms related to her back and right shoulder, and later her left leg. The plaintiff decided not to put in a claim because of her husband’s experience.
93        On examination of the right shoulder, there was painful restricted movement. There was no wasting of the upper limbs. There was restriction of lumbar spine movement, leg lengths were equal and there was some slight dulling of sensation on the lateral aspect of the lower leg.
94        Following that examination, Mr Mangos thought the plaintiff was totally and permanently incapacitated for work for which she was trained, educated and experienced. He noted she spoke very little English, had only worked in labouring and had suffered moderately severe injuries to her back, right shoulder and left leg which rendered her incapable of returning to work of this or a similar nature. He thought she was unemployable and that she was totally and permanently incapacitated.
95        Mr Mangos re-examined the plaintiff in April 2005 as she was re-applying for an Invalid Pension. He confirmed his earlier view as to the plaintiff’s lack of employment capacity. He noted the plaintiff suffered multiple lumbar intervertebral disc injuries, left sided sciatica which tended to be intermittent, and a severe rotator cuff shoulder injury with a major tear of the supraspinatus tendon and anxiety. He thought retraining at her age was out of the question.
96        Mr Mangos reviewed the plaintiff for medico legal purposes in November 2008. He confirmed that he thought on the two earlier occasions the plaintiff was suffering from multilevel intervertebral disc damage with left sided sciatica and a severe rotator cuff injury with a major tear of the supraspinatus tendon.
97        On re-examination, the plaintiff complained of chronic back pain always present with radiation down to the left leg. She also complained of a painful right shoulder.
98        Mr Mangos concluded after examining the plaintiff that his impression was that from the last time he had seen her, the plaintiff’s condition had altered little and she was still totally and permanently incapacitated. He considered her prognosis for a return to normal duties or normal activities was particularly poor.
99        Mr Mangos re-examined the plaintiff in August 2010. The plaintiff told him that her condition had remained unaltered. Her main problem was backache which was constantly present and radiating into her left leg. Her right shoulder was also a major problem, with restriction of movement and chronic pain.
100       Following re-examination, Mr Mangos thought the plaintiff’s injury had well stabilised and no new information had been gleaned. He considered undoubtedly the plaintiff’s incapacity related to her work with the defendant. He thought the prognosis for a return to work was extremely poor and that she was totally and permanently incapacitated for all work.
101       Mr Mangos confirmed his views as to the plaintiff’s unemployability in a letter to her solicitors dated 16 March 2011.
102       Mr Brian Barrett, orthopaedic surgeon, examined the plaintiff on 23 January 2005 at Dr Ristevski’s request.
103       On initial examination, the plaintiff told Mr Barrett of her work with the defendant and gradually complaining of increasing low back pain commencing during the early months of 2002. The plaintiff told Mr Barrett her increasing low-back pain caused her to cease work at that time and that she did not lodge a WorkCover claim because of her husband’s situation.
104       The plaintiff complained of lower back pain radiating into the left loin and pain radiating into the left thigh, leg and foot with pins and needles.
105       Following clinical, orthopaedic and radiological examination, Mr Barrett considered the plaintiff had sustained serious ruptures, particularly involving the L3-4 and L4-5 lumbar and intervertebral discs, producing a significant disability of lower back pain and left L5 nerve root sciatica.
106       Mr Barrett thought the plaintiff had sustained lumbar disc injuries that had no particular power of healing or repair and he considered she was not fit to return to any form of physical work however light and part time that might be. He thought the prognosis was for her symptoms and disability to continue into the foreseeable future; a situation that reflected the non healing nature of these lumbar disc injuries.
107       Mr Barrett explained to the plaintiff that she had sustained multiple lower lumbar disc injuries and that surgery would be unlikely to help and that conservative treatment was appropriate. He then thought the plaintiff was not fit to return to her pre-injury employment or even any light and part time work into the foreseeable future.
108       Mr Barrett re-examined the plaintiff for medico-legal purposes in August 2010.
109       The plaintiff told him that since the initial examination, she had continued to experience low back pain going into her left loin and left buttock.
110       On examination, there was very limited movement of the lumbar spine. Neurological examination of the lower limbs revealed normal power in a symmetrical distribution. The plaintiff could walk on her tiptoes and heels. All lower limb reflexes remained present except the left ankle jerk reflex which was very depressed.
111       Mr Barrett’s opinion remained the same as before. He considered the plaintiff’s inability to return to any gainful employment was entirely due to the condition of her ongoing lumbar spinal injuries.
112       Having seen the plaintiff’s two affidavits, Mr Barrett reported that it was clear to him the plaintiff’s employment with the defendant was a significant contributing factor to her lower lumbar disc injury and that as the disc ruptures had no capacity to heal or repair, he considered the plaintiff would continue to experience symptoms and disability into the foreseeable future.
113       The plaintiff was referred to Dr Wahr by Dr Ristevski, first seeing him on 25 February 2009.
114       The plaintiff told Dr Wahr she stopped working for the defendant because of back pain. She was doing heavy work and slowly developed back pain over six months, before finishing work when the pain worsened. The plaintiff’s complaints in February 2009 were low back pain, “stressed”, a strained muscle in the right arm to her right shoulder, her left leg was sore and she had trouble moving.
115       The plaintiff told Dr Wahr her memory was not good and her concentration was quite reduced. She said she was very depressed but not suicidal. She could not sleep and had become irritable.
116       On mental status examination, the plaintiff’s affect was anxious and depressed. Intellectual functioning was normal and concentration was only reasonable. The plaintiff’s recent memory was reasonably good. There was no evidence of delusions, hallucinations, thought disorder or emotional detachment.
117       Dr Wahr thought the plaintiff was suffering from an agitated depressive reaction constituting an impairment of 15 per cent which was work related. He stopped the plaintiff taking Antenex and started her on Avanza and Xanax.
118       When next seen on 16 March 2009, Dr Wahr warned the plaintiff about her weight and about developing diabetes and noted she already had blood pressure problems. She told him she was a little bit more relaxed and was sleeping somewhat more. The medication regime continued.
119       The plaintiff was reviewed on 22 April, 18 May, 6 July and 10 August 2009. Dr Wahr thought the prognosis for resolution was poor as there was evidence of chronicity, but he thought the plaintiff should nevertheless continue psychiatric treatment on psychotropic medication for some symptomatic relief of her condition. He thought she was suffering from a chronic agitated depressive reaction which was work related and that she could not work in any capacity ever again.
120       Dr Wahr saw the plaintiff monthly and continued to prescribe medication. He noted that the plaintiff still had problems with anxiety, depression, sleep, irritability, reduced concentration and short term memory.
121       He thought the plaintiff had no capacity for employment at that time and that most likely she would require ongoing psychiatric treatment consisting of supportive psychiatric psychotherapy and psychotropic medication.
122       Dr Wahr concluded the prognosis for resolution now that the condition had become chronic was poor but the plaintiff required treatment in order to contain her psychiatric condition and prevent it from worsening. He thought her employment with the defendant was a significant contributing factor. He considered the plaintiff’s quality of life was poor and that she was suffering significantly and her social and domestic life were impaired.

Medico-Legal Evidence
123 On 30 April 2009, the Medical Panel determined the plaintiff had a twelve per cent whole person impairment resulting from the accepted back and right shoulder injuries that were assessed in accordance with s.91 of the Act. The Panel also considered there was a zero per cent psychiatric impairment resulting from the accepted anxiety and depression injury.
124       The plaintiff was examined by Mr Kenneth Brearley, orthopaedic surgeon, on 21 July 2010.
125       The plaintiff told him of her very physical work on the process line and that in January 2002, she started to feel lower back pain which gradually worsened and she attended her doctor but continued to work.
126       The plaintiff’s back pain failed to improve and in May 2002, she was investigated with an x-ray which showed a large left renal stone.
127       Mr Brearley noted it was thought that was probably the explanation for the plaintiff’s low back symptoms and she had surgery on two occasions later that year for the removal of the stones.
128       The plaintiff’s back pain continued unabated after the kidney operations and Dr Ristevski requested an MRI scan of the lumbar spine which showed pathology at the L2-3, L3-4 and L4-5 discs. The plaintiff was treated conservatively with physiotherapy and medication.
129       In addition to her back pain, the plaintiff developed pain in her right shoulder and upper arm which came on about the same time as she developed back pain. An ultrasound in August 2003 showed a full thickness tear of the supraspinatus tendon, in relation to which the plaintiff was treated conservatively.
130       The plaintiff was seen by Mr Mangos, general surgeon, in 2005 for her physical injuries and he recommended ongoing conservative treatment.
131       The plaintiff complained to Mr Brearley of constant pain of variable intensity in the lower back and pain in the back of the left leg. She had pain in the right shoulder on much use of the arm.
132       The plaintiff told Mr Brearley she was having no physical treatment and was taking Celebrex daily, Panamax about four a day and Panadeine Forte one a day. She was taking Avanza and Xanax and she was seeing Dr Wahr, psychiatrist.
133       The plaintiff told Mr Brearley of difficulties doing housework and gardening and an inability to attend social functions.

134       On examination of the right shoulder there was no wasting or deformity. There was marked limitation of movement. There was no deformity of the back but there was generalised lumbar tenderness with markedly reduced movements. Examination of the legs was difficult and it was not possible to elicit the deep reflexes. Sensation appeared to be equal on both sides.
135       Mr Brearley thought the plaintiff had mechanical lumbar pain consequent upon significant disc damage at L3-4 and L4-5 levels, with pressure on the L4-5 and L5 nerve roots on the right side. She also had a tear of the supraspinatus portion of the rotator cuff of the right shoulder with resultant chronic subacromial bursitis and gross stiffness of the shoulder joint, and consequent pain and disability.
136       Because of the heavy nature of her work, Mr Brearley thought the plaintiff’s employment was certainly a significant contributing factor to her injuries. He considered there was no likelihood of any improvement in the condition of the plaintiff’s back but that it would in fact very gradually worsen with increasing pain and disability. He also thought there was no likelihood that there would be any improvement in the plaintiff’s shoulder movement and leg pain.
137       Because of her back, Mr Brearley thought the plaintiff was completely unable to do her pre-injury duties or any other manual work. He considered that her right shoulder injury taken separately would also prevent the plaintiff from doing her previous duties or any manual labour. Mr Brearley thought that the plaintiff had no current work capacity on a permanent basis.
138       Mr Brearley re-examined the plaintiff in March 2011, at which time she told him there was no change in her condition and if anything she was somewhat worse. Findings on physical examination were similar to the first examination.
139       Mr Brearley considered the plaintiff would need ongoing conservative treatment and that there was no indication for surgery in the future. He confirmed his view that the plaintiff had no current work capacity given her age, lack of work experience save for manual work and her total lack of English skills.
140       Dr Nathar, psychiatrist, examined the plaintiff on 15 October 2008 for medico legal purposes. The plaintiff told him of the physical nature of her job with the defendant and she described a cruel work environment where a worker would get into trouble if there was any mention of pain or injury.
141       The plaintiff told Dr Nathar she started to develop back pain on and off for a few years and could not be precise as to exactly when, but she kept working. However, four months prior to stopping work around 2003, her back pain was so bad she could not continue. Around that time she also developed pain in her right shoulder.
142       The plaintiff told Dr Nathar that she faced a lot of problems. She became very anxious and worried and had to take tablets to calm down. Her sleep was interrupted by pain. She did not feel like socialising any more and she became irritable and easily tearful. She was forgetful and sometimes forgot to take her medication. Her concentration was poor.
143       On mental status examination, the plaintiff was clearly anxious and depressed and on a number of occasions she was close to tears. Her stream and form of thinking were normal. At times she seemed to be agitated and when anxious she spoke rather quickly. There were no abnormal contents. There were themes of being a burden and feeling guilty. There were no perceptual disorders such as hallucinations. The plaintiff was correctly orientated. She struggled with the sequence of events and short term memory functioning was compromised. Her concentration was reasonable and there was insight present. Her judgment was mildly impaired due to her mood disorder.
144       Dr Nathar thought the plaintiff had developed a combination of a moderate degree of Chronic Adjustment Disorder with Anxious and Depressed Mood and also a Chronic Pain Disorder involving psychological factors and general medical conditions. He considered those psychiatric injuries had arisen as complications of the plaintiff’s physical problems.
145       Dr Nathar confirmed the plaintiff seemed to be moderately anxious and depressed with pathological pain preoccupation. The overall prognosis, in his view, was poor. The plaintiff had constant pain and had not seemed to be able to cope with her physical problems which tested her emotional reserves and coping capacity. He thought therefore her prognosis on a psychiatric basis was poor and that she was likely to have long term permanent psychological deficits at the present level.
146       Dr Nathar considered the plaintiff’s injuries were of at least moderate severity. He thought, looking at her psychiatric injuries per se, the plaintiff would also be considered as totally and permanently incapacitated for all work, as she was on a physical basis. In general terms, he noted the plaintiff’s psychiatric injuries had markedly reduced her ability to participate and enjoy any social, domestic and recreational activities that she had been able to do pre-injury, and that would be a permanent situation. He thought that she would probably not require any psychiatric or psychological treatment, being able to be fully supported by her family doctor. However, from time to time he considered that she would need anti-anxiety medication to help her relax, and if psychiatric problems worsened, he thought that she may need anti- depressant medication.
147       Dr Nathar re-examined the plaintiff on 12 August 2010. The plaintiff told him she felt depressed, worthless and useless. She had been seeing Dr Wahr over the last year and a half.
148       On examination, the plaintiff’s affect was moderately anxious and depressed and almost teary at times and there was an air of despondency about her. There was normal stream and form of thinking. Sometimes the plaintiff spoke rather quickly when she seemed to be agitated. There were no delusions or suicidality. The plaintiff was preoccupied with her pain and physical problems and voiced her thoughts and feelings of worthlessness and uselessness. There were no perceptual disorders such as hallucinations, and the plaintiff was correctly orientated and she subjectively complained of memory and concentration difficulties. Insight was present and her judgment was impaired.
149       Dr Nathar concluded the plaintiff’s condition had not changed since he last saw her, confirming his earlier diagnosis, with the disorders described being of a moderate nature. He thought the overall prognosis was poor, noting the plaintiff had responded with some symptom amelioration with psychiatric treatment and medication and her condition seemed to have stabilised from a psychiatric point of view since he last saw her. He thought it was likely the plaintiff would have long term permanent psychological deficits at the current moderate level without any prospects of future significant improvement.
150       He noted the history he took of the onset of back symptoms was clarified by the plaintiff in her affidavit with which he had been provided.
151       Dr Nathar noted that given the plaintiff’s physical problems arose significantly after 1999, notwithstanding that she had had pain on and off apparently before that time, then it could be concluded that her psychiatric injuries would be significantly contributed to by her employment with the defendant since 20 October 1999. He thought the fact that the plaintiff commenced psychiatric treatment around 2008, indicated the late onset of worsening depression in all probability after 1999. He therefore concluded the plaintiff’s employment with the defendant since October 1999 was a significant contributing factor to her present psychiatric condition.

Investigations
152       Dr Ristevski organised an MRI scan of the plaintiff’s lumbosacral spine on 2 September 2002.
153       It was reported there was a large osteophytes demonstrated at L2-3 on the left which along with some intervening disc protrudes laterally to impinge upon the upper PSOAS muscle at that level. Disc lesions were demonstrated at L3- 4 and L4-5. The disc tissue at both those levels was noted to narrow and impinge upon the neural exit foraminae. The disc tissue at L4-5 also narrows the AP dimension of the spinal canal to a mild extent.
154       Dr Ristevski organised a further MRI scan on 15 August 2005. It was reported there was slight narrowing of L4-5 disc space with degeneration of the disc material demonstrating low signal intensity on T2 weighted image with broad
based disc herniation to the central and right paracentral and extra foraminal components comprising the right side L5 and L4 nerve roots. There was central and right paracentral disc herniation at L3-4 compromising the right L4 nerve root while it was traversing this disc level. The conus was normally located at the level of L1 vertebra.
155       An ultrasound of the right shoulder was organised by Dr Ristevski on 19 August 2003. It was reported there was a full thickness tear of the anterior supraspinatus, subdeltoid bursal distension and fluid in the bicipital sheath. Impingement did not occur.

Vocational Evidence
156 Katrina Henderson, occupational therapist, completed a 130 week vocational assessment on behalf of Evidex. She concluded no occupation was identified as suitable for the plaintiff after considering her education, transferrable skills, work experience and functional capacity.

Claim Documentation
157 By letter dated 8 May 2009, Cambridge advised the plaintiff of the Medical Panel’s decision, setting out that the accepted injuries were that of back, right shoulder, anxiety and depression.

The Defendant’s Medical Evidence
158       Dr Ristevski’s clinical notes, which were very hard to read, set out an attendance in February 2002 when the plaintiff presented with low back pain, with the next presentation on 27 May 2002.
159       Dr Kevin Fraser, rheumatologist, examined the plaintiff in August 2008. She told him she had worked for the defendant for eight years until she resigned towards the end of May 2002. She told him in early 2002 she had first noticed low back pain and that she did not report this because she was scared of losing her job.
160       The plaintiff saw Dr Ristevski and she was initially told she had torn a muscle in her back. However, there was no improvement. She was sent for x-rays which revealed kidney stones. Her back pain persisted and soon after she finished work in 2002, the plaintiff had surgery for the kidney stones.
161       The plaintiff claimed to have continuous low back pain. She did not mention her right shoulder until she was asked if she had pain anywhere else.
162       On examination, there was restricted movement of the thoracolumbar spine. There was only mild local tenderness at the lumbosacral junction. Right shoulder movement was full with only slight discomfort at the extremes.
163       Dr Fraser noted however during the consultation, the plaintiff displayed normal use of her right arm in gesticulating and indicating the painful areas of her back without apparent discomfort.
164       Straight leg raising was restricted to forty five degrees bilaterally with pain at the extreme but the plaintiff could sit upright on the examination couch. There were no motor sensory deficits in the lower limbs and there was marked overreaction on physical examination.
165       Dr Fraser was not convinced there had been a work related injury in this case. He noted the plaintiff did not report any injury while working and when she resigned in May 2002, her back pain was initially attributed to a large left kidney stone as per Dr Ristevski’s report of 13 October 2006 although persistent symptoms after that was dealt with, led to an MRI scan showing significant lumbar spondylosis.
166       In Dr Fraser’s opinion, there was nothing at all in the plaintiff’s history to suggest that the spondylosis was caused by her activities at work, rather it was an age related condition. He could not exclude the possibility that bending and lifting at work could cause symptomatic aggravation from time to time but if so, he believed it was of a temporary nature and there was no acceleration of the degenerative changes as a result of the plaintiff’s employment.
167       In other words, Dr Fraser thought the plaintiff’s present condition was the same as it would have been regardless of whether she worked for the defendant. Associated with the lumbar spondylosis he thought the plaintiff may have sciatica from time to time but he did not consider there was any radicular pain at present. He thought the knee or lower leg pain was probably due to osteoarthritis.
168       In the absence of a report of shoulder injury while working, Dr Fraser thought it seemed more likely the plaintiff developed a rotator cuff syndrome secondary to rotator cuff degeneration some time after she finished work. In any event, he thought that had largely resolved. He observed discrepancies between spontaneous movements of the plaintiff’s shoulder, arm and those noted on formal examination.
169       In general, Dr Fraser noted overreaction on physical examination left him in no doubt that the plaintiff was exaggerating her symptoms and signs in respect of her back and shoulder. He thought her condition had stabilised and he did not consider there would be any significant change in the foreseeable future. No further treatment other than her present treatment with analgesic and anti-inflammatory drugs was warranted.
170       Dr Fraser thought any incapacity for work resulted from age related degenerative change in the back and perhaps shoulder and was not due to work related injuries. In his view, theoretically the plaintiff was fit for light work with no lifting or bending and which could be done either standing or sitting at will and with no overhead or forceful use of the right arm. However, given her age and the fact that she was on a disability support pension, he thought there was no possibility of the plaintiff returning to work.
171       The plaintiff was re-examined by Dr Fraser in November 2010.
172       The plaintiff reported there had been no improvement and that in both areas the pain was more severe than previously.
173       Right shoulder and lumbar spine movements were restricted. Straight leg raising was restricted to fifteen degrees bilaterally with pain at the extreme, but the plaintiff could sit upright on the examination couch without difficulty. The knee jerks were present but the ankle jerks were equivocal. There were no motor or sensory deficits. Again, there was marked overreaction on physical examination.
174       Dr Fraser’s previous conclusions remained unchanged. In the absence of any convincing link with her employment he could see no reason at all to implicate it rather than the plaintiff’s age as the cause of the degenerative changes in the lumbosacral spine.
175       As far as he could determine, there did not appear to be any mention of back or shoulder pain in Dr Ristevski’s clinical reports prior to May or June 2002 when the plaintiff began to complain of back pain and prior to that she attended infrequently between 1996 and 2001.
176       Commenting that the notes were difficult to read, Dr Fraser noted that there were two entries concerning the left leg in November 1999 and May 2000 which related to varicose veins. There was mention of an ultrasound in the note of 4 August 2003 but Dr Fraser could not read the note.
177       Dr Fraser did not change his view, having seen Mr Barrett’s report. Dr Fraser confirmed the plaintiff was clearly exaggerating her incapacity in respect of her injuries. To the extent that her injuries were organically based, he thought they were age related degenerative changes and not related to her work. He thought the plaintiff was theoretically fit for light work with no lifting or bending which could be done either standing or sitting at will and with no overhead or forceful use of the right arm. However, in reality he thought the plaintiff was unemployable particular as she was now on a disability support pension. He did not think the plaintiff required any treatment for any of her putative work- related injuries.
178       The plaintiff saw orthopaedic surgeon, Mr Shannon, in February 2009 for the purposes of an AMA assessment.
179       The plaintiff told him she started to have trouble with her low back over a six month period leading up to the cessation of her employment in 2002. There was an onset of right shoulder pain at the same time.
180       On examination, the plaintiff demonstrated virtually no lumbar movement and she had strongly positive Waddell’s signs suggesting a non organic component. Straight leg raising was limited to 10 degrees and hip flexion to 30 degrees. However, it was noted the plaintiff sat reasonably comfortably to 70 degrees. There was no muscle wasting and reflexes in the lower limbs were relatively inactive. The plaintiff had moderate restriction of right shoulder movement with positive impingement signs.
181       Mr Shannon thought there was no doubt the plaintiff was suffering from degenerative change in the lumbar spine and rotator cuff tendons in the right shoulder. He noted that it had been accepted those conditions were work related and his role was to assess the impairment.
182       Mr Shannon pointed out there were a number of discrepancies and non- organic features to the plaintiff’s examination so that the assessment of the impairment based on measurement of the right shoulder was probably not valid. He noted that view would tend to be supported by comparison of his measurements of the right shoulder with those of Mr Mangos in 2006.
183       Mr Shannon noted there appeared to have been a substantial deterioration in the plaintiff’s range of movement particularly abduction and flexion at a time when she was not working. He suspected there was a significant lack of cooperation with the examination. He thought the nature of the plaintiff’s spinal condition was multi level lumbar disc degeneration with disc bulging and mild stenosis. There was no objective neurological abnormality to assess radiculopathy.
184       Dr Wilkie, consultant radiologist, reviewed the 2002 and 2005 MRIs and the ultrasound of the right shoulder taken in 2003.
185       Dr Wilkie noted there were essentially no changes between the studies that were three years apart. The changes were essentially those of L4-5 disc degeneration without focal herniation with a small central posterior disc herniation at L3-4 and the changes at L2-3 were clearly degenerative.
186       Dr Wilkie regarded it as highly improbable three years prior to the 2002 MRI scan that in 1999, an MRI scan of the plaintiff’s lumbosacral spine would have demonstrated normal findings. He thought it highly likely that all the changes described on the 2002 and 2005 tests would have been present in 1999 as this severity of disc degeneration was slow in evolution as reflected in the lack of change between the two studies.
187       Dr Wilkie thought the radiological changes were consistent with a person who had most likely been performing manual labour particularly prior to 1999.
188       In Dr Wilkie’s view, given the radiological changes evident in 2002 which would have been present in 1999, manual labour would have been expected to have exacerbated symptoms, particularly at the L4-5 and L5-S1 levels.
189       Dr Wilkie believed that the finding of full thickness supraspinatus deficiency in the anterior portion of the tendon was consistent with manual occupation and most likely multiple episodes of micro trauma. He noted quality of imaging did not allow a clear differentiation between a single incident, acute tear and multiple incident tears with tendon atrophy and secondary full thickness deficiency in portion of the tendon anteriorally.

190       Dr Wilkie thought it high likely that the plaintiff would be symptomatic in the absence of work related injuries simply from normal activities. Corollary to that, was with adequate conservative management and advice, one would expect that the plaintiff would be able to have near normal activities with some restriction given the continued absence of nerve root compression in the absence of canal stenosis and remarkably well preserved lumbar apophyseal joints throughout.
191       The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, on 2 December 2009.
192       The plaintiff told Mr Dooley of lower back pain during her work. He noted it was difficult to sort out the chronology of events but around this time the plaintiff was also diagnosed with renal calculus, for which she underwent surgery twice. That problem was then fixed but the plaintiff continued to experience lower back pain. She saw her local doctor and analgesics were prescribed.
193       The plaintiff told Mr Dooley she noted ongoing low back pain despite the cessation of her work. She also said during the course of her work she felt right shoulder pain.
194       On examination, the plaintiff complained of ongoing low back and left buttock pain which caused her to be unable to sleep. She also noted ongoing intermittent right shoulder girdle pain. The plaintiff told Mr Dooley, because of being nervous and upset, she had developed hypertension.
195       On physical examination, there was tenderness of the low lumbar spine. There was restriction of lumbar spine movement accompanied by complaints of pain. Straight leg raising on the right was to seventy degrees and on the left, thirty degrees, at which point the plaintiff noted low back pain. The pain was intensified with hip and knee flexion.
196       Power, tone and sensation were intact in the lower limbs and the ankle jerks were symmetrically reduced. There was crepitus with knee movement consistent with early osteoarthritis of both knee joints. There was generalised tenderness of the right shoulder girdle with restricted movement.
197       Mr Dooley noted an MRI scan showed degenerative change involving at least the three lowest lumbar levels. There was no evidence of nerve root entrapment. He noted an ultrasound of the right shoulder was reported to show a tear of the supraspinatus tendon.
198       Mr Dooley thought the plaintiff was suffering from degenerative disc disease of the lumbar spine - a naturally occurring and age related condition. Based on the history, he thought it was certainly feasible that at times during the course of her work she would have aggravated this underlying condition and at those times she would have noted intermittent low back and buttock pain.
199       Mr Dooley noted however, one would have expected these symptoms to have at least improved with the cessation of work. He would not expect the plaintiff to be noting constant ongoing pain seven years after the cessation of work as a consequence of these aggravations.
200       He considered the plaintiff had developed a Chronic Pain Syndrome and that her psychological reaction to injury and or pain explained the chronicity of her symptoms. He noted that such a syndrome was precipitated by an employee believing they had been treated unfairly during the course of work. He noted in the plaintiff’s view, she did not receive adequate training in relation to her work and she thought that the physical nature of her work was excessive.
201       Mr Dooley thought the appropriate treatment was an exercise and fitness program and it was important the plaintiff walked regularly. He considered ongoing formal conservative measures would not help and there was no indication for surgery.
202       Whilst Mr Dooley accepted there would be a range of views in this regard, he thought the plaintiff did not rupture lower lumbar discs during the course of her work. In his view, so called annular rupturing or tearing was part of the natural evolution of degenerative disc disease of the lumbar spine. He noted many asymptomatic middle aged individuals undergoing MRI scans of the back would come back with reports of annular tearing at L4-5 and L5-S1.
203       Mr Dooley considered telling the plaintiff that she had ruptured lumbar discs only tended to reinforce her invalid role. He noted many patients with degenerative disc disease remained remarkably active in their everyday life.
204       Mr Dooley thought the plaintiff suffered from degenerative rotator cuff disease of the right shoulder which he believed she had aggravated during work. He considered that the supraspinatus tear noted on ultrasound examination was part of the degenerative process.
205       Mr Dooley thought that his clinical examination of the plaintiff’s right shoulder was more in keeping with a Chronic Pain Syndrome. He would expect the plaintiff to note some restriction of shoulder motion and some aggravation of her symptoms with activity at and above shoulder level and at night. He did not believe any specific treatment was required for the shoulder.
206       In Mr Dooley’s view, much of the plaintiff’s presentation related to her psychological reaction to injury and or pain. He considered, from a purely orthopaedic point of view, the effects of the aggravation sustained during work had substantially settled. He thought the loss of body function of the right shoulder and lumbar spine resulting from the compensable injuries were mild on a scale of mild, moderate and severe. In his view, the plaintiff would continue to note some intermittent right shoulder girdle pain and some lumbar spine pain of this nature. From an orthopaedic view, he did not expect the plaintiff’s condition to deteriorate with time. Overall, he thought her treatment should be supervised by her local doctor and that she did not require any specific orthopaedic treatment.
207       Mr Dooley thought the plaintiff was unfit to carry out heavy physical work. From an orthopaedic viewpoint alone, he considered that she would be capable of carrying out some light physical work and clerical duties. He thought she would have difficulty carrying out work involving repetitive bending and lifting and difficulty carrying out work that involved repetitive activity at and above shoulder level.
208       Mr Dooley agreed with Dr Wilkie’s comments in regard to the imaging of the lumbar spine representing age related disc degenerative disease and its evolution.
209       In Mr Dooley’s view, the supraspinatus tear noted on ultrasound of the shoulder again was naturally occurring and age related. He did not believe it specifically related to manual labour.
210       Mr Dooley reported that he managed many middle aged and older patients with painful shoulders secondary to rotator cuff degeneration. He observed that he managed as many or more patients who were not carrying out manual work, with symptomatic rotator cuff degeneration and or tearing. Patients carrying out a lot of heavy activity or a lot of activity at or above shoulder level may aggravate the underlying degenerative change.
211       Overall, Dr Wilke’s report did not cause Mr Dooley to change his view, and he remained firm in his view in relation to the aetiology of the plaintiff’s condition and the development of a Chronic Pain Syndrome.
212       Mr Dooley re-examined the plaintiff on 14 February 2011 when the plaintiff told him then that since the last review her symptoms had persisted.
213       On examination, there was tenderness of the right shoulder girdle region and right shoulder movement was restricted.
214       There was tenderness of the lower lumbar region towards the left side and movement was restricted. Straight leg raising to the right was to sixty degrees and on the left, to twenty degrees with pain. Power was difficult to assess in the lower limbs because of pain. Tone and sensation were intact and the ankle jerks were symmetrically reduced.
215       Mr Dooley’s views remained as outlined in his previous report. He thought the plaintiff’s psychological reaction to injury and or pain dominated her clinical presentation. He remained of the view she had not ruptured intervertebral discs during the course of her work. He included with his report a copy of a landmark scientific article in relation to degenerative disc disease of the lumbar spine and its pathophysiological development.
216       Mr Dooley noted to traumatically rupture a disc required enormous force, such as in a car accident. A so called annular tear or rupture does not heal because it is a degenerative type tear. He thought the same would apply for a degenerative tear of the rotator cuff tendon or a degenerative tear within an Achilles tendon. He noted there are an inestimable number of middle aged and older Australians functioning in everyday aspects of their lives with so called degenerative type annular tears within their lumbar discs.
217       Mr Dooley remained of the view that the plaintiff suffered from degenerative rotator cuff disease of the right shoulder, an underlying condition aggravated during the course of work. He thought, however, the aggravation and underlying degenerative rotator cuff disease would not explain the constancy and intensity of her ongoing shoulder pain. He thought the restriction of active motion and the reluctance to have the shoulder moved passively were part of the plaintiff’s psychological reaction to injury and or pain.
218       Mr Dooley concluded the loss of lumbar spine and right shoulder function resulting from the compensable injury was mild from an orthopaedic point of view. From that point of view alone, he would expect the plaintiff to note some intermittent low back pain and lower lumbar pain. He would expect her to note some intermittent right shoulder girdle pain.
219       Mr Dooley considered that the plaintiff was unfit to carry out regular heavy physical work or work that involved a lot of lifting and bending, but she would be capable of carrying out light physical work and clerical duties.
220       The plaintiff was examined by psychiatrist, Dr Stern, on 16 February 2009. The plaintiff told him as a result of her repetitive and fast duties in around 2002 she experienced pain in her whole back and left shoulder. She had some conservative treatment which did not help and some time later in 2002 she stopped work and had not returned to work since.
221       The plaintiff told him she had been left with constant pain in the whole back and leg. The left shoulder pain had resolved but she had constant pain in her right shoulder. She was depressed and frustrated by pain and did not like her life. She worried about her health and needed medication to sleep. There were occasional nightmares. She had lost energy and felt weak and tired.
222       On mental state examination there was reduced eye contact and the plaintiff had difficulty relaxing. Her speech had normal volume and the content was pessimistic and preoccupied with pain. Her affect was tense and depressed. She was not hopeful of the future and her confidence was low. There was no evidence of thought disorder or obsessive compulsive disorder. Her memory and concentration were reduced. Her orientation was intact and her intelligence was normal. She had fair insight into her situation.
223       Dr Stern thought the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood relating to the work injuries of 2002 and the continuing pain. He noted that she had not had any psychiatric treatment.
224       In Dr Stern’s view, from a psychiatric point of view alone, the plaintiff was fit for all work. Her social and leisure activities had been reduced. Her activities of daily living were not limited by psychiatric factors. He thought her condition had stabilised.
225       The plaintiff was examined by psychiatrist Professor Mendelson on 24 December 2009.
226       The plaintiff told him that she injured herself working in early 2002 when she developed low back pain and experienced right shoulder pain. She had not worked since April or May 2002 when the pain started and she said that since 2002 the low back pain had been getting worse.
227       On mental state examination the plaintiff’s affect was normal. She did not show any abnormalities of motor activity and there were no manifestations of psycho-motor retardation, agitation or tremor. Her speech was fluent.
228       It was Professor Mendelson’s impression that the plaintiff described her complaint in a somewhat overdramatised manner. She was alert during the examination and there was no evidence of cognitive impairment or any problems with memory or concentration. She did not show any indications of formal thought disorder and there was no abnormality of stream of thought or any indications of any abnormalities of perception.
229       The plaintiff told Professor Mendelson in addition to her physical symptoms, her sleep was disturbed by pain, her memory was really bad and she had headaches most of the time. She said in terms of daily activity she really did nothing except wash a few dishes. She told him she was very nervous and upset and described being irritable.
230       In Professor Mendelson’s opinion there was no indication the plaintiff had any diagnosable mental disorder or psychiatric impairment causing loss of work capacity. He noted the specific symptoms of depressed mood described by Dr Wahr were currently well controlled with treatment and medication.
231       He thought the plaintiff at present showed no evidence of being mentally ill and there was no indication that she had any loss of work capacity due to any diagnosable mental disorder or psychiatric impairment. In his view, it was not inappropriate for the plaintiff to continue taking medication if it helped improve the quality of her sleep and reduced irritability, given it was recognised that persistent pain caused sleep disturbance and hyper-irritability, noting Dr Wahr’s report that there had been some reduction in the plaintiff’s emotional symptoms whilst she was on medication.
232       The plaintiff was re-examined by Professor Mendelson in December 2010.
233       At that stage, Professor Mendelson was provided with 135 pages of documents. He noted the clinical records from Dr Ristevski did not contain any information inconsistent with his formal reports.
234       Professor Mendelson noted the plaintiff had been prescribed Ducene in August 1998. In October 2003 she was prescribed Effexor which was repeated in February 2004.
235       On re-examination the plaintiff complained of feeling very nervy and very stressed due to constant pain and restrictions. She did not describe or acknowledge any other emotional symptoms or manifestations of mood disorder. On mental status examination there was no evidence of lowering of mood or emotional lability.
236       It remained Professor Mendelson’s view following re-examination there was no indication the plaintiff was mentally ill and there was no indication of loss of work capacity due to a psychiatric illness or impairment. He still considered the specific depressive symptoms that the plaintiff described to Dr Wahr when she had initially consulted him had remained well controlled with the use of medications and supportive psychotherapy.
237       Professor Mendelson’s prognosis was that of the plaintiff’s physical condition, and there was no psychiatric contraindication to the plaintiff undertaking gainful employment within the limitations of her current physical condition if considered feasible.

Claim Documents
238 The plaintiff submitted a Claim Form dated 29 March 2006 which set out she suffered injury on 11 February 2002 and ceased work on 30 May 2002 in relation thereto. She suffered injury to her lower back, legs, right shoulder, and anxiety and depression. She was then working forty hours a week full time as a packer.
239 Her second Claim Form dated 30 January 2006, set out the onset of those conditions in the course of her employment.

Overview
240       In closing, counsel for the plaintiff submitted the focus of the plaintiff’s application was mainly on her physical impairments to the back and right shoulder. It was submitted there was also a separate psychiatric condition of agitated depression diagnosed by treating psychiatrist Dr Wahr.
241       Dealing first with the physical impairment, it was conceded by counsel for the defendant the plaintiff has a compensable injury to her back and right shoulder.
242       Although liability for the plaintiff’s compensation claim lodged in 2006 was initially denied, this concession was made on the basis of Mr Dooley’s view that there was an aggravation of an underlying degenerative condition in both the plaintiff’s spine and her right shoulder as a result of her work duties. Mr Dooley however considered the aggravation had ceased and the plaintiff’s present condition was now one of a non organic chronic pain syndrome.
243       Further, the plaintiff’s claim for impairment benefits pursuant to Section 98C in relation to her back and right shoulder was accepted.
244       This acceptance of liability may not be binding but as said by Ashley JA in Ansett v Taylor [2006] VSCA 171, such an admission should ordinarily be regarded as very significant:
“….albeit not conclusive because a defendant in a particular case might
be able to satisfactorily be able to explain its conduct.”

245       No such explanation has been forthcoming in the present case.
246       I accept the plaintiff first experienced back pain some time before February 2002 at which time she attended Dr Ristevki. Her evidence that she was prescribed medication at that time was unchallenged and Dr Ristevski was not required to attend for cross examination.
247       I accept the plaintiff continued to work with some difficulty undertaking duties of a physical nature until May 2002. At that time the plaintiff’s back pain continued and the issue of kidney stones arose – a problem she considered to be separate to her back pain which was mainly left sided.
248        It is unclear whether x-rays were arranged at that time by Dr Ristevski in relation to the kidney stones or the back complaint. In any event, as a result of some tests being undertaken, the plaintiff was diagnosed with kidney stones and she was then referred to a specialist in that field, Mr Cleeve. The plaintiff left work and underwent surgery and has not returned to work since that time.
249       Dr Ristevski reported that despite the stone causing back and loin pain, the plaintiff had features in relation to her back that suggested there was a component also related to spinal pathology, including pain going down her left leg.
250       Following kidney stone surgery, the plaintiff’s back and left leg problems continued and further investigations were arranged by Dr Ristevski. As the plaintiff told Mr Brearley, her back pain continued unabated after the surgery and the MRI scan was ordered.
251       Having worked for the defendant for seven years without interruption, the plaintiff left the defendant’s employ in May 2002. The circumstances of her notice are unclear there being nothing in writing and the plaintiff agreeing that she left the defendant’s employ in a number of different circumstances.
252       I accept whatever role the kidney stone played in the plaintiff’s presentation in May 2002, it ceased to be of relevance after the surgery. No doctors have implicated it in the plaintiff’s ongoing complaints of back pain or in her condition at the present time.
253       No other reason was suggested to the plaintiff why she would stop working in a job in which she had been employed for the previous seven years.

254       I accept that the reason for late lodgement of the plaintiff’s compensation was her fear of the defendant’s response and the fact that she had not had her back condition properly assessed until she was examined by Mr Mangos and Mr Barrett.
255       I am required by reason of sub section (h) of the Act to exclude psychological or psychiatric consequences when considering an application pursuant to subsection (a).
256       Whilst more recently, medico legal examiners Mr. Dooley and Dr Fraser found inconsistencies in the plaintiff’s presentation on examination and diagnosed a chronic pain syndrome or non organic factors, having regard to the totality of the medical evidence and the plaintiff’s evidence as to her ongoing pain, which was not significantly challenged, I accept that her back condition is organically based.
257       Prior to 2002, the plaintiff had no history of back or leg pain.
258       Treaters Mr Barrett and Mr Mangos agreed the plaintiff suffered serious and painful lower lumbar intervetbral disc ruptures involving L3-4 and L4-5 as a result of her work with the defendant. Both examiners found left sided radiculopathy
259       Medico legal examiner Mr Brearley diagnosed the plaintiff’s condition in slightly different terms finding mechanical back pain consequent upon significant disc damage at those levels.
260       Although Mr Dooley diagnosed a chronic pain disorder, he thought the plaintiff would continue to note some intermittent back pain and from an orthopaedic viewpoint he thought she was only fit for light or clerical duties. Mr Shannon did not really address this issue examining the plaintiff for an AMA assessment in circumstances where he noted it had been accepted her back and shoulder conditions were work related.
261       Dr Fraser is alone in his more extreme findings of exaggeration on examination.
262       In terms of any psychiatrically based pain disorder, Dr Mendelsohn found no evidence of the plaintiff being mentally ill. Treater Dr Wahr did not consider the plaintiff was suffering from a pain disorder and Dr Nathar thought in addition to a chronic adjustment disorder, the plaintiff was suffering a chronic pain syndrome of a moderate degree.
263       As Judge Morrow stated in Gorgie v Healthscope Ltd (2000) VCC 1443 at para 50, the mere fact that non organic factors have later intruded does not mean that an otherwise sound organically based case is to be dismissed.

Credit

264

No significant attack was made on the plaintiff’s credit in this matter save for in relation to the circumstances of the onset of her symptoms and the lack of report thereof. Her evidence of inability to work and ongoing pain since 2002 was essentially unchallenged. There was no video surveillance or any lay evidence challenging the plaintiff’s evidence in this regard.
Consequences
265       The provisions of section 134AB(38) set out the narrative test for determining whether a plaintiff may make a claim for damages for pain and suffering or loss of earning capacity.
266       The narrative test requires that the consequences of the plaintiff’s impairment, when judged by comparison with other cases in the range of other possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable.
267       The test requires an evaluation of all the evidence. The relevant consideration is impairment not injury.
268       I accept that since 2002 the plaintiff has had back and left leg pain and restriction of a variable degree worsened by activity. Since that time she has required ongoing prescription medication for pain relief.
269       I accept as a result of her back injury, the plaintiff no longer has the capacity to perform the only work in which she experience, namely manual work.
270       Save for Mr Dooley, all medical practitioners agreed that the plaintiff does not have the capacity for unrestricted manual work or light part time work although Mr Fraser did not think this restriction had an organic basis.
271       I am satisfied that the interference with the plaintiff’s work is a consequence which, 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.
272       A consequence may have a multiplicity of causes including a multiplicity of compensable injuries. Provided that the plaintiff establishes that the compensable injury to her back in 2002 materially contributes to her impairment and its consequences and will continue to do so permanently, then the role of other injuries such as the injury to her shoulder does not preclude the court from concluding that there was an appropriate causal link between the compensable injury on the one hand and the consequences relied upon on the other- see Ashley JA in Grech v Orica supra at para 58.
273       The plaintiff brings this application in relation to both pain and suffering and loss of earning capacity.
274       In addition to the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:

(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
275       The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i) “without injury” earnings; and
(ii) “after injury” earnings.
276       The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
277       “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
278       It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
279       At the time of this hearing, the plaintiff’s gross earnings from personal exertion are nil.
280       The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
281       I am therefore required to determine a “without injury” earnings figure.
282       No submissions as to specific figures were made by counsel in this regard. It was submitted on the plaintiff’s behalf that she was totally and permanently incapacitated for work. Counsel for the defendant submitted the plaintiff continued to have a partial capacity for work as Mr Dooley considered, but that any ongoing incapacity was not accident related but due to degenerative or non organic factors.
283       As previously noted, the preponderance of medical evidence is that the plaintiff will not be able to return to her pre injury work or work of any light nature even on a part time basis – the view of treaters Dr Ristevki, Mr Barrett and Mr Mangos and medico legal examiner Mr Brearley.
284       Mr Dooley thought the plaintiff was fit for light physical or clerical work, however given her lack of English and work experience she would be incapable of pursuing the latter option.
285 Taking into account the factors set out in Section 5 of the Act, I am satisfied that as a result of her back condition, the plaintiff has no capacity for suitable employment.
286       The only vocational evidence, namely the report from Evidex identified no occupation which was suitable for the plaintiff after considering her education, transferrable skills, work experience and functional capacity.
287       I am satisfied that the plaintiff, a disability pensioner, has a loss of earning capacity of forty per cent.
288       I am also required to consider issues of rehabilitation and retraining pursuant to sub section (g).
289       In light of my findings as to the plaintiff’s impairment and incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
290       Having satisfied the test laid down by the Act in relation to loss of earning capacity, the plaintiff is at large to make a claim for damage- i.e. for both pain and suffering and loss of earning capacity - see Forrest J in Acir v Frossiter (2009) VSC 454 and Advanced Wire & Cable & VWA v Abdulle [2009] VSCA 170.
291       I am satisfied the plaintiff has a serious injury in relation to her back. There having been no improvement in her condition since 2002 and taking into account the consensus of medical opinion that her prognosis is poor, I am satisfied that the plaintiff’s back impairment is also permanent.
292       Having made this finding, I am not required to consider the plaintiff’s application in relation to her right shoulder or her claim pursuant to sub section (c).
293       Accordingly, I grant leave to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity damages.

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Citations

Grozdanovska v Bertocchi Smallgoods Pty Ltd [2011] VCC 962

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33

Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172

Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33

Credit
264	No significant attack was made on the plaintiff’s credit in this matter save for in relation to the circumstances of the onset of her symptoms and the lack of report thereof. Her evidence of inability to work and ongoing pain since 2002 was essentially unchallenged. There was no video surveillance or any lay evidence challenging the plaintiff’s evidence in this regard.

[2011] VCC 962

25 May 2011