Hatzissavas v VWA
[2023] VCC 1488
•29 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03587
| IOANNA HATZISSAVAS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2023 | |
DATE OF JUDGMENT: | 29 August 2023 | |
CASE MAY BE CITED AS: | Hatzissavas v VWA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1488 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Macnab SC with Mr L. Howe | Zaparas Lawyers |
| For the Defendant | Mr T. Storey | Wisewould Mahoney Lawyers |
HIS HONOUR:
Introduction
1.Pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff sought a Serious Injury Certificate for pain and suffering and pecuniary loss for a permanent serious impairment or loss of function of her right upper limb and spine and, permanent severe mental or permanent severe behavioural disturbance or disorder including but not limited to development of anxiety and/or depression. The plaintiff was represented by Mr Macnab of Senior Counsel together with Mr Howe of counsel. The defendant was represented by Mr Storey of counsel.
2.Although the application was brought pursuant to paragraphs (a) and (c) of the definition of “serious injury” as that term is defined in s325(1) of the Act, at the commencement of the hearing, Mr Macnab abandoned reliance on paragraph (c), and pursued the application on paragraph (a) of the definition. He also abandoned reliance on a loss of earning capacity. Therefore, the application was confined to one seeking leave to commence common law proceedings for pain and suffering under paragraph (a).
3.The part of the body said to be impaired for the purposes of paragraph (a) is the plaintiff’s right shoulder. Reliance on the whole of spine, as was expressed in the particulars of injury, was not a point of any controversy.
4.The defendant opposed the grant of a certificate and argued that the plaintiff’s impairment from an accepted work injury is not serious in terms of pain and suffering. Mr Storey also submitted that although causation was not raised as a ground of opposition to the grant of the application, the defendant nonetheless, pointed to the fact that the plaintiff labours from a constitutionally genetic condition in the right shoulder manifested as a downward sloping acromion.[1] Otherwise, the defendant characterised the plaintiff’s injury as a mild aggravation of the pre-existing right shoulder that has in any event abated if not resolved.
[1] As far as the evidence is concerned, and at the relevant time of injury, the downward sloping acromion was a pre-existing but asymptomatic condition.
Relevant legal principles
5.The definition of “serious injury” contained in s325(1) of the Act reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
6.The Court must not grant leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[2]
[2] Section 335(5) of the Act.
7.To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[3]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “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”.[5]
[3] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (‘Barwon’).
[4] Barwon (2005) 14 VR 622, 638 [33].
[5] Section 325(2)(c) of the Act.
8.The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
9.The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[6]
[6] See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
10.In determining the “consequences” of the injury, the Court is required to consider the consequences to this plaintiff, viewed objectively, arising from the injury.
11.In determining the application, the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[8]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[9]
[7] Section 325(2)(h) of the Act.
[8] Section 325(2)(j) of the Act.
[9] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
12.In TTB SMS Pty Ltd v Reading[10], Tate and T Forrest JJA, had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case and these are:
[10] [2020] VSCA 203.
(a) serious injury means permanent serious impairment or loss of a body function;[11]
[11] Section 325 of the Act.
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[12]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[13]
[12] Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[13] Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
The plaintiff’s evidence
13.The plaintiff relied on the following evidence:
·Affidavit of the Plaintiff sworn 30 August 2021;[14]
[14] Exhibit P1, Plaintiff’s Court Book (‘PCB’) 26-36.
·Further affidavit of the Plaintiff sworn 11 May 2023;[15]
[15] Exhibit P1, PCB 84-89.
·Medical reports of Dr Coker dated 4 May 2017[16] and 24 June 2016;[17]
[16] Exhibit P2, PCB 38.
[17] Exhibit P2, PCB 39.
·Medical reports of Dr Chan dated 3 September 2020[18] and 14 September 2020;[19]
·Medical reports of Dr Fayman dated 10 June 2020,[20] 2 March 2021[21] and 21 May 2021;[22]
·Report of Dr Kooblal dated 3 March 2021;[23]
·Two Medical reports of Dr Crockart both dated 3 March 2020;[24]
·Physiotherapy Management Plan, Glen Eira Physiotherapy, dated 15 May 2017;[25]
·Report of Ms Riediger dated 2 October 2018;[26]
·Report of Mr Paul undated;[27]
·Bundle of radiology reports,[28] including reports dated 17 February 2014, 9 April 2015, 15 April 2016;
·Medico-Legal report of Dr Sullivan dated 14 December 2022;[29] and
·Medico-legal report of Mr Chehata dated 6 December 2022.[30]
[18] Exhibit P3, PCB 40-41.
[19] Exhibit P3, PCB 42-43.
[20] Exhibit P4, PCB 44-46.
[21] Exhibit P4, PCB 47.
[22] Exhibit P4, PCB 48-49.
[23] Exhibit P5, PCB 50.
[24] Exhibit P6, PCB 51, 52.
[25] Exhibit P7, PCB 53-54.
[26] Exhibit P8, PCB 55-56.
[27] Exhibit P9, PCB 57-59.
[28] Exhibit P10, PCB 64-65.
[29] Exhibit P11, PCB 66-72.
[30] Exhibit P12, PCB 78-83.
The defendant’s evidence
14.The defendant relied on the following evidence:
·Medical reports of Associate Professor Love dated 26 May 2016,[31] 22 May 2017[32] and 16 February 2023;[33]
·Medical reports of Associate Professor Boffa dated 26 September 2017[34] and 6 October 2017;[35]
·Medical reports of Dr Perera dated 30 July 2020[36] and 7 September 2020;[37]
·Medical report of Associate Professor Romas dated 10 December 2021;[38]
·Medical report of Dr Le Leu dated 29 June 2022;[39] and
·Various basketball documents.[40]
[31] Exhibit D1, Defendant’s Court Book (‘DCB’) DCB 5-12.
[32] Exhibit D1, DCB 13-22.
[33] Exhibit D1, DCB 23-29.
[34] Exhibit D2, DCB 30-34.
[35] Exhibit D2, DCB 35-40.
[36] Exhibit D3, DCB 41-51.
[37] Exhibit D3, DCB 52-54.
[38] Exhibit D4, DCB 55-60.
[39] Exhibit D5, DCB 69-78.
[40] Exhibit D6, DCB 190-205.
15.I have read and had regard to the lay and medical evidence relied on by the parties together with the affidavit evidence and the cross-examination and re-examination of the plaintiff as well as the final addresses of counsel.
The plaintiff, her employment, the onset of injury and its aftermath
16.The plaintiff commenced work with the Red Cross Blood Service (“Red Cross”) in 2011 as an enrolled nurse in a permanent part time role. She last worked for Red Cross in March 2020. In January 2021, she obtained employment in a general medical practice although she is no longer employed with it. She deposed that she has not worked since 3 June 2022.[41]
[41] Exhibit P1, Second Affidavit para 16 PCB 88. However, and although nothing of note turns on it, the following practitioners have recorded that the plaintiff said she last worked in August 2022: Dr Richard Sullivan at Exhibit P11, PCB 68 and 69, Mr Chehata at Exhibit P12, PCB 80, and Associate Professor Bruce Love at Exhibit D1, DCB 25.
17.The plaintiff said that in about early 2013,[42] she experienced a gradual onset of pain and restriction of movement of the right shoulder when performing repetitive reaching tasks at work. She said that she reported this to her manager. She continued working and self-managed her pain with physiotherapy and stretching exercises.
[42] In her further affidavit the plaintiff corrected the date from 2014 to 2013.
18.The plaintiff took maternity leave from February 2015 until December 2015. At its conclusion she returned to Red Cross and worked up to 40 hours a week. She deposed that she continued to perform repetitive work tasks with her right arm.
19.On 7 April 2016, the plaintiff submitted a WorkCover claim for right shoulder injury because, as she explained, it was on this date that she experienced increasingly severe pain in her right shoulder and was unable to move her right arm. There is no specific incident of injury relied on by the plaintiff but rather a gradual onset of pain due to a combination of activities and repetitive tasks she performed with Red Cross, including leaning over a desk to attach blood pressure cuffs on patients, venesecting and the setting up of plasma machines.
20.Having submitted a WorkCover claim, the plaintiff consulted her general practitioner on 7 April 2016, who provided her two weeks off work as well as a referral to physiotherapy.
21.The plaintiff returned to Red Cross after her fortnight off work. She said that she undertook modified duties and reduced hours of about 64 hours per fortnight. She deposed that she rotated her tasks and was able to take breaks during her working day, however, she continued the task of taking blood pressures.
22.On 21 June 2016 having changed medical practices, the plaintiff saw Dr Corker at the Mackie Road Clinic who arranged an MRI of the right shoulder. On 24 June 2016 Dr Corker also referred the plaintiff to Mr Stewart Proper, an orthopaedic surgeon who arranged for the plaintiff to have an injection into the shoulder on 27 July 2016.
23.The plaintiff said that she was on and off work until about November 2016. She believes that she returned to work before she was ready, and in doing so, further aggravated her right shoulder condition. She said that she experienced flare ups of pain that she addressed by a combination of physiotherapy and time off work.
24.Dr Corker advised the plaintiff to reduce her workload. She said that she took about a month off work before returning again to Red Cross on reduced hours and modified duties.
25.The plaintiff took a second and longer period of maternity leave between December 2017 and December 2019. She said that her right shoulder condition settled whilst she was off work.
26.In or about January 2020 at the conclusion of maternity leave, the plaintiff returned to work at Red Cross. She said that over a period of about three weeks she performed repetitive tasks, which again aggravated the right shoulder. Thereafter, she did not return to work with Red Cross but she did work elsewhere.
27.The plaintiff addressed the work she has performed since her right shoulder became symptomatic and otherwise than with Red Cross. She had two stints working with other employers including as a nurse in a NSS Trust GP practice at Station Square Medical Centre where she was a casual employee working 3 days a week.[43] The second was with Your Nurse Agency.[44] Whilst she described these roles as very light on her shoulder, nonetheless, she said that pain in her right shoulder increased by the end of most shifts.
[43]Exhibit P1, PCB 34 and 35.
[44]Exhibit P1, PCB 88.
28.In about February 2021,[45] the plaintiff enrolled in university as a fulltime student studying for the degree of Bachelor of Nursing. She also worked as an agency nurse during her university holidays and in COVID testing centres in January 2022, but she has not worked at all since about either June or August 2022, depending on the different dates appearing in the evidence.[46]
[45]T22, L31-T23, L2.
[46]Exhibit P1, PCB 88, see also Exhibit P11, PCB 68, Exhibit D1, DCB 25.
The consequential effects of injury deposed to by the plaintiff
29.In her first affidavit, the plaintiff described suffering from right shoulder pain most of the time with the pain being worse when working and with her struggling to use and raise her arm above shoulder height and in moving it across her body. She said she struggled with prolonged computer work and experienced difficulty carrying her children, and trouble with sleeping, and being wakened from her sleep by pain. Her eldest child has autism and ADHD and whenever he pulls at her right arm for attention, she will suffer pain.
30.The plaintiff said that she is unable to enjoy camping, playing basketball, swimming, bike riding and rock climbing with these being activities she previously engaged in.
31.She described playing basketball in a recreational league that was very casual and, in her affidavit, dated 11 May 2023 the plaintiff said that:
Unfortunately, because of my shoulder pain I stopped playing half-way through last season because of my pain. It is upsetting. I sometimes go to watch, but I don't feel I can contribute without suffering consequence to my injury.[47]
[47] Exhibit P1, PCB 86.
32.The plaintiff said her employment in September 2019 involved performing nursing duties with a GP on a casual basis. The employer was aware of her restrictions but she proved to be an attractive recruitment due to her facility with the Greek language. She said that she tried to increase shifts but was unable to do so because an illness from which her former partner suffered meant she was the sole carer for her daughters, with the result that trying to navigate personal issues and her shoulder infirmity proved too difficult and ultimately, she was dismissed.[48]
[48]Exhibit P1, PCB 34.
33.The plaintiff travelled to Greece in 2022 to visit family. She says that the travelling aggravated her symptoms because of the need to manoeuvre baggage and to assist her daughters.
34.In her May 2023 affidavit, the plaintiff said that her symptoms have slightly deteriorated. She has temporarily deferred studies for the Bachelor of Nursing degree although she wants to return to it sometime in the future, however, she is unsure if she will be able to complete her studies. She said she had planned to upskill in an effort to obtain employment that was more administrative and less physically demanding, but she is concerned that even such roles would require some degree of physical activity that she does not believe she could perform.
Radiology
35.The following medical imaging investigations were tendered:
·MRI right shoulder dated 21 June 2016, which found the rotator cuff and biceps tendons as normal and concluded with a normal study;[49]
·Ultrasounds and X-rays of the right shoulder dated 15 April 2016, which did not reveal any rotator cuff tear;[50]
·Ultrasound of the right shoulder dated 17 February 2014, which reported a subdeltoid bursitis, and no impingement;[51]
·Ultrasound of the right shoulder dated 9 April 2015 which reported a limited abduction, with cause not identified;[52] and
·General Radiology Report of the neck, chest, and lymph nodes which concluded that the CT findings within the normal limits post treatment with no focal lesion was identified in the right supraclavicular fossa.[53]
[49] Exhibit P10, PCB 64
[50] Exhibit P10, hard copy.
[51] Exhibit P10, hard copy.
[52] Exhibit P10, hard copy.
[53] Exhibit P10, PCB 65.
The plaintiff cross-examined
36.Given when the plaintiff said she became aware of pain in her right shoulder, Mr Storey directed her attention to the condition of her neck between 2013 and 2014. Based on records of her attendances at the Glen Eira Medical Clinic, the plaintiff agreed that from approximately the middle of 2013 to August 2014 she attended physiotherapy predominantly for her neck and not for her right shoulder.[54]
[54] T13, L26-29.
37.The plaintiff commenced a period of maternity leave in February 2015 and returned to work in December 2015. Mr Storey directed her to an attendance on a Chelsea Smith at Glen Eira Physio on 22 April 2015 for physiotherapy for right anterior shoulder pain. It was recorded that the plaintiff had experienced similar issues previously and had been diagnosed with bursitis and that she had felt much worse about a month ago but was gradually improving with rest.[55]
[55]T14, L23-T15, L4.
38.An entry on 27 July 2015 referred to the plaintiff taking care of a six-month-old baby, that necessitated a lot of lifting and looking down and that her right shoulder had flared up of late.[56] Mr Storey put to the plaintiff the contents of a note of entry dated 21 August 2015 that recorded, "Ongoing right anterior shoulder pain." Constantly aggravated from holding baby and breast feeding."[57] Mr Storey suggested to the plaintiff that it had been her activity with her daughter involving bending and reaching and, lifting that had triggered her pain affecting her right shoulder and neck.
[56]T15, L7-20.
[57]T15, L21-25.
39.Mr Storey further suggested to the plaintiff that prior to commencing maternity leave and save for a brief mention of right shoulder pain on 28 February 2014, throughout 2013 and 2014, the concerns that were noted were associated with the plaintiff’s neck and not the right shoulder, with the right shoulder problem commencing to present itself whilst the plaintiff was attending to her daily demands as a mother to a baby. The plaintiff disputed this account, although she agreed with Mr Storey that she commenced to report right shoulder pain during the period of her maternity leave.
40.Prior to the conclusion of maternity leave and in November 2015 the plaintiff travelled for leisure to Greece.
41.The plaintiff was directed by Mr Storey to an MRI of her right shoulder taken in June 2016.[58] The plaintiff said that she understood the results were normal and they had been explained to her by Mr Proper, orthopaedic surgeon. She said that she vaguely recalled Mr Proper describing to her that she has a genetic predisposition to shoulder problems due to the lack of clearance at the top of the shoulder.
[58] Exhibit P10, PCB 64.
42.Although the plaintiff said medications had been suggested to her for shoulder pain, she chose to “opt out of treating it with medication.”[59]
[59] T18, L29-30.
43.The plaintiff did not work for about a month from early January 2017 to the middle of February 2017. There was some debate about the nature of the leave she utilised at the time, but ultimately it is not a controversy of any relevance.
44.The plaintiff continued to work with Red Cross until the end of 2017 and she attended for physiotherapy as required. She agreed with Mr Storey that she was exercising quite regularly and it might have been the case that on occasions during 2017, she was attending gym up to three times a week performing exercises that included the use of free weights in consultation with her physiotherapist. The plaintiff also thought that she played basketball in 2017.
45.The plaintiff was absent from her employment with Red Cross on a second period of maternity leave between December 2017 and October 2019.
46.The plaintiff said that towards the end of maternity leave she undertook some nursing employment at Station Square Medical Centre.
47.The plaintiff returned to Red Cross in January 2020 but after 4 weeks stopped, because it was unable to offer her suitable duties to accommodate her right shoulder.
48.After leaving Red Cross, the plaintiff said that she performed increased hours of work at Station Square Medical Centre although the hours were variable.[60]
[60] T22, L24-30.
49.To Mr Storey’s suggestion that she commenced studies in February 2021 to qualify as a registered nurse because she believed that once qualified, she would be able to perform the work of a registered nurse the plaintiff said, “I knew that my career as an enrolled nurse was very challenging for me to source employment. And I had the idea that I could study the Bachelor of Nursing and get into more senior positions, such as management or education, where manual handling wouldn't be an issue.”[61]
[61] T23, L9-24.
50.The plaintiff agreed with Mr Storey that the problems she had described, that she encountered with a mandatory practical placement that was part of her studies but that she had been unable to complete, occurred for reasons unrelated to her right shoulder condition, and that she had been experiencing problems in her personal life involving her former partner.
51.The plaintiff denied that the condition of her right shoulder played no part in her subsequent decision to defer her studies and said, “I deferred studies because I'm unsure as to whether or not that's a pathway that I'll be able to complete and achieve and gain meaningful employment in because of my shoulder injury.”[62]
[62] T25, L5-8.
52.The plaintiff said that her university was aware of her shoulder injury “and the placements that I did were allocated to me and the placement were aware and they were - like they allowed me - or they accommodated my shoulder restrictions.”[63]
[63] T25, L28-31.
53.Mr Storey suggested to the plaintiff that with allowances having been made for her right shoulder restrictions she had proved able to accommodate her course of studies, to which the plaintiff said that she was taking each placement as it came and that, “If I run into a barrier where, let's say hospital based working wouldn’t accept my shoulder restrictions or accommodation, I would not be able to meet the inherent requirements of the course to complete that placement. So it might be up to me to source placements that accommodate my injury for me to complete the course.”[64]
[64] T26, L6-11.
54.The plaintiff agreed with Mr Storey that the academic aspects of her course of study were unaffected by her right shoulder. Also, and despite her evidence that placements have always been an ongoing barrier, the plaintiff accepted that the single occasion that she had been unable to complete a placement was for reasons unrelated to her right shoulder.[65]
[65] T26, L16-19.
55.The plaintiff was directed by Mr Storey to the contents of her first affidavit in which she deposed to a series of adverse effects on her sporting and recreational activities because of the condition of her right shoulder. Mr Storey recited the following matters from the plaintiff’s evidence:
My injuries have impacted on my hobbies and the sorts of activities I can do with my children. Before I injured myself, I used to enjoy physical activities such as camping, playing basketball, bike riding, swimming and rock climbing. Since injuring myself, I have tried to rock climb and ride a bike but found this too difficult. I am similarly limited in playing with my children. While I have tried to play defense basketball since injuring myself, I avoid shooting or overarm movements. I can swim but I try and avoid strokes such as freestyle because these make my pain worse. I also find prolonged driving difficult so I have to break up the drive on road trips.[66]
[66] Exhibit P1, PCB 33.
56.The plaintiff agreed with Mr Storey that she continues to go camping with her two children. When Mr Storey suggested to her that she tries to undertake at least two trips a year she said, “it would - it would be a number higher than that.”[67] She agreed that a camping trip necessitated her packing a car, driving to the site,[68] unpacking, and setting up a tent and doing all the same but in reverse at the end of a trip.[69]
[67] T27, L20-21.
[68] The plaintiff said the camping will involve an annual January trip to the Cumberland River on the Great Ocean Road a drive of approximately 2 ½ hours away.
[69] T27, L25-26.
57.The plaintiff acknowledged that she holidayed in Greece with her daughters in about June/July 2019,[70] as well as in 2022 for about three weeks.[71]
[70] T28, L31.
[71] T34, L13-14.
58.The plaintiff’s participation in basketball was the subject of a significant degree of cross-examination. Although a long-standing player of basketball, the plaintiff explained that following the birth of her first daughter in February 2015, which is after the shoulder had become symptomatic, she recommenced playing for a team on a weekly basis.[72] She said that she derived enjoyment from her participation in the sport, however, she said that she was not able to play to her full ability and she was “not the shooter or anything like that.”[73]
[72] T30, L17-18.
[73]T38, L31.
59.Mr Storey put to the plaintiff a set of indicia he suggested were essential aspects in the playing of basketball, with which she agreed, and these included the use of the arms to dribble, pass, rebound, and to shoot, and frequently reaching up to get the ball.[74]
[74] T31, L8-9.
60.Mr Storey cross-examined the plaintiff about records of basketball matches that identified the plaintiff’s participation as a player in season 2019/2020.[75] She accepted that she played basketball on Tuesdays and Sundays, while also working.
[75] Exhibit D6, DCB 190-205.
61.Mr Storey asked the plaintiff if she could reconcile her evidence that her right shoulder condition was usually better in the morning and at its most painful at the end of a day's work, with her proved capacity to play basketball at the end of a day’s work. Mr Storey suggested to the plaintiff that her capacity to do so was because the right shoulder pain was “pretty mild”.[76] The plaintiff refuted this and she maintained that her shoulder pain prevented her from enjoying the game as she once had by being able to play “properly”, by which I understand she meant, “fully” or to be a useful player on the team. Although the plaintiff accepted Mr Storey’s proposition that she had been able to play all aspects of a social low-level game, she reiterated that she had played with restrictions.[77]
[76]T39, L16 -17.
[77]T40 L9-10.
62.The plaintiff also agreed with Mr Storey that she played for two teams each week during the season, but that she “wasn't always playing for two teams. It was one and then the other and then trying to merge the two.”[78] Nonetheless, the plaintiff accepted that there were times that she played for two teams in the course of a week. To Mr Storey’s suggestion that “whenever basketball was available to you, you took it up?” the plaintiff said, “I attempted to engage in it fully, yes.”[79]
[78]T40, L12-14.
[79]T40, L22-23.
63.Mr Storey pursued this aspect of his examination of the plaintiff by reference to certain comments made by some medical practitioners of her capacity for work. Dr Kooblai from the Mackie Road Clinic in a letter dated 4 March 2021 wrote that:
I am writing to elaborate on Alana’s specific capacity to work. Her right shoulder is restricted specifically in the hanging of saline bags and overarm movements as detailed in the physiotherapist's report. However, her left arm has no injury and is unrestricted, specifically her left arm can hang a 1000mL saline bag on a 1750mm pole as referenced in the task analysis.[80]
[80]Exhibit P5, PCB 50.
64.Associate Professor Romas, rheumatologist, in his December 2021 report, referred to a dead arm and difficulty with daily tasks:
1.3 Current complaints
Slight shoulder discomfort, variable impingement, sometimes apprehension but no subluxation. No clicking. She has a “dead arm” feeling.
She has difficulty with daily tasks particularly those tasks involving shoulder elevation and abduction.[81]
[81]Exhibit D4, DCB 55.
65.Mr Storey asked the plaintiff if she was able to square away her self-reported accounts to doctors of discomfort and restrictions with the fact that in the same period of time, she was playing basketball. The plaintiff said:
Um, I was unable to hand saline bags with my right arm and my GP was trying to advocate for me that I had full use of the left arm. I was trying to demonstrate what I could do. And I think basketball falls into that. I was trying to do what I could. [82]
[82] T41, L26-30.
66.Mr Storey referred the plaintiff to a Medical Panel examination of her conducted in March 2022. Mr Storey told the plaintiff that the Panel recorded examples it said the plaintiff gave to it of activities that she struggled with because of her right shoulder pain, but that it made no reference to the playing of basketball. The plaintiff said that she would have had told the Panel about this had she been asked.[83] At any rate, the medical panel reasons were not tendered.
[83] T44, L8-10.
67.Mr Storey questioned the plaintiff about an examination conducted of her at the request of the defendant by Dr Le Leu, Occupational Physician, on 22 June 2022. In his report dated 29 June 2022,[84] addressing the plaintiff’s current complaints and symptoms, Dr Le Leu wrote that the plaintiff said that “Currently she does not have any pain in the right shoulder and particularly not sharp pain, but the shoulder does not feel right.”[85] Asked by Mr Storey about the accuracy of that account attributed to her by Dr Le Leu, the plaintiff said, “I would say that I experienced pain daily. If he asked me at that particular moment in time if I had any pain, if I didn't I would have declared so and I believe that that's is what's reflected here.”[86] The plaintiff expanded on her answer and said that “I would say that there's times within the day that I wouldn't be aware of the shoulder.”[87] When pressed by Mr Storey if it is “fair to say that what's described here that there's moments where the shoulder doesn't feel right but it's not painful at all?”[88] the plaintiff said, “During the course of the day, yes, I believe that that would be accurate.”[89]
[84] Exhibit D5.
[85] Exhibit D5, DCB 72.
[86] T44, L25-28.
[87] T44, L30 – T45, L1.
[88] T45, L2-4.
[89] T45, L4-5.
68.The plaintiff said that she believed that it was towards the end of 2021 when she last received physiotherapy and that thereafter she switched to myotherapy performed by her partner.[90]
[90] T45, L11.
69.The plaintiff told Mr Storey said that she attends her GP on an as needs basis.
70.The plaintiff said that she regularly attends saunas for therapeutic as well as for personal enjoyment.
71.The plaintiff said that even if her pain could be better managed by prescribed medication she would decline to do so because she is very medication averse.[91]
[91] T46, L 2-4.
72.The plaintiff said that she would like to continue nursing but she is not sure how viable it will prove to be.[92]
[92] T47, L8-10.
73.In re-examination the plaintiff said she thought her career in nursing was uncertain because of her belief in her inability to perform manual handling “that's involved with the majority of my career.”[93] The plaintiff elaborated on this worry of hers and said:
I've sort of been on the fringes of trying to secure employment that - that doesn't involve repetitive movement or over arm reaching or patient manual handling. And I've even found those areas to be difficult. I think it's very challenging to be able to gain employment with the restrictions in the first place to sort of try and see if I am able to manage it or not, and I think the pattern that I've not worked on a reliable and consistent basis has sort of shown which way my career is going.[94]
[93] T47, L29-30.
[94] T47, L31 – T48, L8.
74.As to the frequency of her consciousness of pain, the plaintiff explained it this way:
It would be, um, probably more when I'm sedentary or I know that it's worse when I move around or I do tasks but then there are times that if I've sort of triggered it, it might just be sort of like a kind of dull – a dull thing in the background but then there are days where it might be good enough that I don't notice it for a period of time until I do a certain task.
It can be anything. Sometimes I can tie my hair up and it be relatively pain free and then sometimes I'm completely unable and have to adjust my whole way that I do that. I'm – like might go for a long drive and it might be relatively okay and then I'll go for a drive for five minutes and cross over and it will be bad for – for, you know, sometimes days if I've sort of triggered it in the wrong way. It's not very sort of linear but it's, yeah, constantly depends on…[95]
[95] T50, L11-31.
75.The plaintiff said that she last played a competitive game of basketball in August 2022. When asked why she had stopped by Mr McNab she said:
Because I was unable to continue to do with without having too many consequences, I wasn't able to do it pain free….
And it was just - I've always played but it's always been to my detriment, I think.
…It would - it would affect my shoulder, yes, but I would still do it.[96]
[96]T51, L18-25.
Plaintiff Medical Evidence
Dr Corker
76.Dr Andrew Corker, GP, provided reports dated 4 May 2017[97] and 24 June 2016.[98] The first of them addressed the flare up of the plaintiff’s right shoulder pain and reduced mobility secondary to her work activity. Dr Corker recounted that after the plaintiff’s return to work in November 2016 she soon redeveloped shoulder symptoms. He reported that the symptoms were relieved with rest but soon after returning to fulltime work in March 2017, the shoulder symptoms resurfaced and because she was unable to be provided with modified duties, she was again assessed unfit for work.
[97] Exhibit P2, PCB 38.
[98] Exhibit P2, PCB 39.
77.In his second report, Dr Corker reported that the plaintiff suffered from ongoing restricted movement and pain when reaching above shoulder height. He said he had arranged for an MRI which “was surprisingly normal”[99] and an x-ray and ultrasound performed in April 2016 were also normal.
[99] Exhibit P2, PCB 39.
Dr Chan
78.Dr Lauren Chan, GP, provided reports dated 3 September[100] and 14 September 2020.[101] In her first report, Dr Chan addressed the plaintiff’s current and anticipated work restrictions. Dr Chan thought that the plaintiff will:
require flexibility in her workplace with regard to potential rotation of duties in response to her symptoms as well as appropriate re-evaluation after commencing. Her right shoulder pain is predominantly triggered by repetitive overhead activity, which can often be avoided or reduced if she alternates with different tasks not requiring overhead activity. The list below is an attempt to best outline the anticipated work restrictions:
- Can utilise right arm and shoulder as able within levels of comfort
- Cease any activity that causes pain
- Limit repetitive movements that have historically caused increased pain
- Can lift <5kg[102]
[100] Exhibit P3, PCB 40-41.
[101] Exhibit P3, PCB 42-43.
[102] Exhibit P3, PCB 40.
79.As to capacity Dr Chan reported that the plaintiff has:
- Unlimited computer work
- Unlimited interviewing
- Unlimited BP measurement with modification — without overarm reaching
- Unlimited donor set up in chair
-Unlimited phlebotomy
- Restricted hanging of saline bag and/or anticoagulant bag during plasma donating preparation[103]
[103] Exhibit P3, PCB 40.
80.In her second report, having been asked to comment on the suitable employment options listed in Occupational Rehabilitation reports provided to her and whether she considered that the plaintiff has a current capacity to perform the duties associated with them, Dr Chan concluded that the plaintiff was able to perform nursing tasks with limitations predominantly being the ability to rotate and to limit repetitive overhead activities with the affected arm.[104]
[104] Exhibit P3, PCB 42.
Dr Fayman
81.Dr Kimberley Fayman, GP, provided reports dated 10 June 2020,[105] 2 March 2021[106] and 21 May 2021.[107]
[105] Exhibit P4, PCB 44-46.
[106] Exhibit P4, PCB 47.
[107] Exhibit P4, PCB 48-49.
82.In her first report, Dr Fayman concluded that the plaintiff “is currently able to perform the inherent requirements of her role, with reasonable modification to limit repetition.”[108]
[108] Exhibit P4, PCB 44.
83.In her second report, Dr Fayman observed that the plaintiff had been a year away from her role at Lifeblood, had attended regular GP reviews as well as physiotherapy and had participated in a strengthening program and that the plaintiff told her that “her pain is stable…she is eager to return to her role in a modified capacity, as has been reflected in her certificates of capacity provided.”[109]
[109] Exhibit P4, PCB 47.
84.Dr Fayman concluded her second report by stating that:
Whilst her injury has not yet recovered and therefore her need for minor activity modification and further rehabilitation persist, Alana feels very strongly that she is currently able to perform well in her role and thus contribute productively and positively to the Lifeblood team. Current and previous certificates have detailed capacities with specific reference to job requirements and readiness to work. As per previous information packs sent to me, it is my understanding that Alana currently meets capacity requirements for employment.[110]
[110] Exhibit P4, PCB 47.
85.In the final report Dr Fayman wrote that:
The diagnosis sustained by loanna includes acromioclavicular impingement with subsequent right shoulder pain, scapular dyskinesis and reduced range of movement. This injury has and the resulting impact on loanna's work has had adverse consequences on her mental health and been a major stressor for Ioanna over this time.[111]
….
prognosis for her right shoulder pain is positive as long as she can avoid any provoking/aggravating activities.”[112]
[111] Exhibit P3, PCB 48.
[112] Exhibit P3, PCB 48.
86.Dr Fayman reported that the plaintiff “is similarly restricted in relation to social, domestic and/or recreational activities which include repetitive right arm work, overhead activity with right arm, lifting >5kg. This incapacity will similarly likely continue for the foreseeable future.”[113]
[113] Exhibit P3, PCB 49.
Dr Kooblal
87.Dr Kooblal, GP, provided a report dated 3 March 2021 addressing the plaintiff’s capacity to perform the employment in which she was then engaged.[114] Dr Kooblal said:
Her right shoulder is restricted specifically in the hanging of saline bags and overarm movements as detailed in the physiotherapist's report. However, her left arm has no injury and is unrestricted, specifically her left arm is able to hang a 1000mL saline bag on a 1750mm pole as referenced in the task analysis.[115]
[114] Exhibit P5, PCB 50.
[115] Exhibit P5, PCB 50.
Dr Crockart
88.Dr Heather Crockart, psychiatrist, furnished two reports, both dated 3 March 2020.[116] In the first of them, Dr Crockart recounted the plaintiff’s history with respect to injury and concluded that “Since returning to work from maternity leave the old injury has CONTINUED. The current symptoms are a continuation of the original right shoulder injury which did not resolve.”[117]
[116] Exhibit P6, PCB 51-52.
[117] Exhibit P6, PCB 51.
89.In the second report, Dr Crockart concluded that:
Due to her not working the pain in her shoulder became minimal and manageable. Since returning to work from maternity leave the old injury has been aggravated and she now has the same disability for which she is under work cover in 2016.[118]
[118] Exhibit P6, PCB 52.
Physiotherapy plan
90.A Physiotherapy Management Plan, from Glen Eira Physiotherapy, dated 15 May 2017[119] outlined the plaintiff’s clinical assessment, work status, return to work progression, clinical progression and proposed management plan. A diagnosis of a “right shoulder subacromial impingement syndrome”[120] was suggested with the areas treated the “cervical spine/right shoulder/upper thoracic.” [121]
[119] Exhibit P7, PCB 53-54.
[120] Exhibit P7, PCB 53.
[121] Exhibit P7, PCB 53.
Ms Riediger, Physiotherapist
91.Ms Nicole Riediger in a report dated 2 October 2018,[122] diagnosed the plaintiff with a “Sub-acromial impingement on b/g of type 2 acromion and repetitive overuse during work related activities.”[123]
[122] Exhibit P8, PCB 55-56.
[123] Exhibit P8, PCB 55.
Mr Paul, Physiotherapist
92.Mr Paul provided an undated report[124] addressing the plaintiff’s clinical history, her recorded range of movement along with the frequency of attendances, and treatments performed. Mr Paul noted that the plaintiff “was last treated on the 13th of October 2020. I have been treating Alana approximately 1-2 times per fortnight since the 24th of June 2020.”[125]
[124] Exhibit P9, PCB 57-59.
[125] Exhibit P9, PCB 58.
93.Mr Paul offered a diagnosis of a “Right shoulder sub-acromial impingement; Acromioclavicular (AC) joint pain and scapular dyskinesis.”[126] As to the plaintiff’s prognosis, he thought it was difficult to predict because the plaintiff had been suffering from similar symptoms for approximately 5-6 years.[127]
[126] Exhibit P9, PCB 58.
[127] Exhibit P9, PCB 59.
Mr Chehata, Orthopaedic Surgeon
94.Mr Chehata provided the plaintiff’s solicitors with a medico-legal report dated 6 December 2022. He said that a diagnosis was “certainly difficult to ascertain considering the absence of any frank pathology on radiology, from ultrasound and MRI.”[128] However, he identified what he considered as an impingement or a bursitis in the right upper limb. He observed that the plaintiff’s treatment had been conservative and included one cortisone injection. He was unable to offer a clear prognosis and said that although there was “a potential soft tissue bursitis or impingement, the actual cause of her symptoms at this stage is vague.”[129]
[128] Exhibit P12, PCB 82.
[129] Exhibit P12, PCB 81.
95.Mr Chehata reported that the plaintiff complained of ongoing intermittent collar bone tightness and pain, deep to the under surface of the right collar bone. She was avoiding overhead activity and attempting to manage and modify her overall manoeuvring of the right shoulder, particularly above shoulder height. She recounted that she struggled to drive for long periods of time. She had no issue regarding personal care. She had no restriction with external and internal rotation. She struggled to make beds and often vacuums and mops with her opposite hand. She attended to weeding and planting around her garden intermittently, as well as the mowing intersperse with taking as many breaks as possible.
96.On examination, Mr Chehata found no wasting of the shoulder girdle and no physical palpable tenderness, crepitus, clicking or locking. The plaintiff was able to forward flex and abduct to 180 degrees with no restriction. External and internal rotation were unremarkable, internally rotating well past 90 degrees and externally rotating past 80 degrees.
97.On examination the plaintiff’s cervical spine showed no abnormality and Mr Chehata found a full range of movement with no restriction. There was no radiation of pain up into the right cervical spine.
98.The plaintiff reported to Mr Chehata that as a result of her right shoulder symptoms, her previous activities of playing basketball, camping, bike riding, swimming and rock climbing had all been somewhat restricted and although she could still swim, she avoided strokes such as freestyle because it worsened her pain. She also recounted being limited when playing with her two children.
99.Mr Chehata said the plaintiff did not require surgery and he would err against operative intervention as it would be unlikely to prove successful and that without any frank pathology, surgical intervention should be avoided. The plaintiff told Mr Chehata that, “by going to the gym, she has made her shoulder stronger.”[130]
[130] Exhibit P12, PCB 81.
100.Elsewhere, Mr Chehata reported:
As a consequence of the injury, she is certainly struggling to perform any overhead activity. Any above shoulder activity, whether it is pushing, pulling or any repetitive activity can often lead to ongoing right shoulder and collar bone pain, particularly deeper to the collar bone.[131]
[131] Exhibit P12, PCB 81.
101.Mr Chehata also said that:
As a result of her injury, she has had to modify most of her recreational pursuits in order to prevent the flareups occurring in that right shoulder which is a constant burden for her.[132]
[132] Exhibit P12, PCB 82.
102.As to a capacity for suitable employment Mr Chehata wrote that:
As a consequence of her current situation, Ms Hatzisavvas has been attempting to transition into a different line of registered nursing, from an enrolled nurse to a registered nurse in order to limit the amount of repetitive activity that she is required to perform. She has the capacity for suitable employment.[133]
[133] Exhibit P12, PCB 82.
Dr Richard Sullivan, Pain Specialist
103.Dr Sullivan provided a medico-legal report dated 14 December 2022.[134] He recounted the plaintiff’s presenting symptoms were:
Right upper limb pain, this is concentrated around the right shoulder wherein she has persisting pain of an aching character in the anterior and lateral aspects of the right shoulder, which is reported as uncomfortable and mild to moderate at complete wrist with her arm in an anatomically neutral position.[135]
[134] Exhibit P11, PCB 66-72.
[135] Exhibit P11, PCB 66.
104.Dr Sullivan went on to say that:
…this pain is rapidly aggravated if the plaintiff tries to undertake activities above chest heights or uses her right upper limb forcibly or repetitively, if she tries to lift objects or weights at chest height of more than 10 kilograms, or if she tries to carry objects or weights in excess of 2 to 3 kilograms, if she drives for longer than approximately 20 to 30 minutes, or if she utilises a tablet mouse or keyboard for longer than around 15 to 20 minutes. She self rated the pain as 8 or more out of 10 and she described it as aching and stabbing in character.[136]
[136] Exhibit P11, PCB 66-67.
105.Dr Sullivan said the plaintiff’s pain is relieved through resting, ceasing activity, avoiding any provocating activity and by utilising a combination of gentle exercise, physiotherapy, myotherapy and dry needling.
106.Dr Sullivan said that the plaintiff’s other presenting symptom was anterolateral right-sided cervical pain that tends to be worse when she cannot access adequate treatments (including myotherapy, dry needling and exercise) or when she over utilises her right upper limb. He reported that the plaintiff described her neck pain as an ache, but that it can be burning in character and associated with reduced range of cervical movement when the pain is exacerbated.
107.Dr Sullivan noted that the plaintiff avoided strong analgesic medications but used occasional over-the-counter anti-inflammatory medication or paracetamol and otherwise received treatment from her partner who is a myotherapist, including myotherapy to the neck and shoulder region and dry needling to the cervical region. He reported that the plaintiff also undertook gentle exercise on a regular basis.
108.Dr Sullivan noted that the plaintiff had engaged in a range of hobbies including camping, playing basketball, bike riding, swimming and rock climbing and that:
She used to enjoy gardening and was an avid gardener. Since her symptoms have become problematic, she has engaged in some camping with less enjoyment thereof, only plays basketball occasionally and does not engage physically with such activity, avoids bike riding, has a modified approach to swimming and no longer enjoys or partakes in rock climbing or bouldering. She also has a substantively reduced capacity for activities in the garden.[137]
[137] Exhibit P11, PCB 68.
109.Dr Sullivan diagnosed:
repetitive soft tissue injury to the right shoulder, posttraumatic chronic pain condition with an underlying organic basis as per the International Classification of Disease. Volume 11 code MG30.20.
Further potential diagnoses would include a cervical spinal injury, potentially inclusive of aggravation of cervical spondylosis and I would recommend assessment, including MRI scanning of the cervical spine and assessment with a spinal surgeon. Additionally, I would recommend contemporaneous imaging of the right shoulder and review of such imaging with an orthopaedic shoulder specialist.[138]
[138] Exhibit P11, PCB 70.
110.In responding to employment and any precluded or restricted activities Dr Sullivan wrote:
Your client with permanent restrictions and limitations reducing her capacity for pushing, pulling and lifting to no more than a few kilograms, incidental lifting from waist height only of no more than 10 kilograms, avoiding any form of overhead tasks or reaching with her right upper limb, limiting her typing, writing and use of tools to no more than 10 to 15 minutes at a time and avoiding strenuous or repetitive use of her right upper limb.[139]
[139] Exhibit P11, PCB 71.
111.However, although, Dr Sullivan did not think it was reasonable that the plaintiff would return to preinjury employment, he thought that she could have capacity for employment if the same accommodated the identified restrictions.
Defendant Medical Evidence
Associate Professor Bruce Love
112.Associate Professor Love is a Consultant Orthopaedic Surgeon who was requested by the defendant to examine the plaintiff and to report on the same. He saw the plaintiff on three occasions with each examination followed by a written report.[140] It is sufficient to refer to the third and most recent of his reports dated 16 February 2023.
[140] Exhibit D1, report dated 26 May 2016, DCB 5-12; 22 May 2017, DCB 13-22; 16 February 2023, DCB 23-29.
113.Associate Professor Love identified no abnormality of the plaintiff’s left shoulder on clinical examination with the right shoulder revealing mild tenderness with some discomfort at the limits of movement and with only a mild loss of full abduction and flexion. He noted that the investigations that had been provided to him by way of MRI and ultrasound from 21 June 2016 and 15 April 2016 revealed no significant abnormality.
114.Associate Professor Love diagnosed the plaintiff’s condition as rotator cuff tendinosis of the right shoulder of a mild degree and for which no specific treatment is required or likely to be beneficial.
115.Associate Professor Love detailed the plaintiff’s employment duties at the time of onset of pain.
116.Associate Professor Love observed that at the date of examination, the plaintiff was finishing a Bachelor of Nursing Degree and had been an Enrolled Nurse for 14 years. He detailed how her right shoulder condition had interfered with her employment to a variable degree with, at a certain point, her not having been able to lift her right arm above shoulder height.
117.Associate Professor Love assessed the plaintiff’s social and domestic activities to have been marginally affected by her condition and she had recounted that long distance driving, camping and swimming are activities that will sometimes aggravate her right shoulder as does erecting a tent and performing over arm swimming.
118.Associate Professor Love reported the absence of major restrictions of movement other than discomfort at the limits of movement of the right shoulder. He said that the plaintiff described a low level of background discomfort in the right shoulder and that it is only on reaching for objects using the right upper limb or driving a motor vehicle for an extended period of time that the symptoms in the right shoulder increase. She described pulling her hair into place with her right arm as an activity that aggravates her shoulder pain.
119.Associate Professor Love reported that the plaintiff dated the onset of symptoms in the right shoulder to 2014 and becoming more extreme in 2016, but that more recently symptoms had lessened.
120.Associate Professor Love reported that physiotherapy had been particularly helpful to the plaintiff when the shoulder was stiffer than it is currently, but that there had been an absence of other formal treatment.
Mr Perera, Orthopaedic Surgeon
121.Mr Perera at the request of the defendant provided reports dated 30 July 2020[141] and 7 September 2020[142] following on his examination of the plaintiff.
[141] Exhibit D3, DCB 41-51.
[142] Exhibit D3, DCB 52-54.
122.In Mr Perera’s opinion, the plaintiff was suffering a chronic rotator cuff injury of the right shoulder, with associated subacromial impingement, and possible bursitis. He thought that the plaintiff continued to suffer from an aggravation of her original injury to the right shoulder sustained in 2014. He wrote that the plaintiff continued to have experienced problems with the shoulder since then, which in his opinion, were aggravated by the type of work she was performing, but which appeared to subside during the period of her two years of maternity leave although she had a further flare up of symptoms after she returned to work in January 2020 when carrying out the type of work she did previously.
123.Mr Perera reported that investigation of the plaintiff’s shoulder had revealed a Type 2 acromion process, which is likely to contribute to subacromial impingement, and rotator cuff injury. He regarded the shoulder injury was stable for the plaintiff to be able to return to modified employment.
124.In his second supplementary report, Mr Perera was provided details of a series of jobs which included practice nurse, enrolled nurse, immunisation nurse, ward clerk and medical receptionist. He assessed the plaintiff to be suitable for each of them subject to a recognition that she carried some restrictions. He addressed the matter in this way:
She has restrictions with working repetitively with the right arm at or above shoulder height, and with repetitive lifting with the right arm above waist height and above shoulder height. She also has some restrictions with repetitive reaching forward to carry out tasks, and in my opinion, this may be aggravated if she is reaching forward carrying weight over 10kg in her right hand. If the weight is carried close to her body, she should be capable of carrying such weight up to waist height. She would be advised to avoid repetitively lifting over 10kg in weight at or above shoulder height on the right side.[143]
[143] Exhibit D3, DCB 53.
125.Mr Perera went on to say that:
Alana Hatzissavas has significant experience and training and knowledge in her work with the Red Cross Blood Service, and I am of the opinion that she has a current work capacity for suitable employment with the Red Cross Blood Service, dependent on appropriate rotations of the tasks she is expected to carry out. The plasmapheresis has been identified as having the potential to aggravate her right shoulder, and I am of the opinion that it would be advisable to limit, or restrict such activity if and when she returns to working with the Red Cross Blood Service.[144]
[144] Exhibit D3, DCB 53.
Associate Professor Romas, Consultant Rheumatologist
126.Associate Professor Romas provided a report dated 10 December 2021,[145] following on examination of the plaintiff. He recounted the plaintiff’s history and her current symptoms as:
Slight shoulder discomfort, variable impingement, sometimes apprehension but no subluxation. No clicking. She has a “dead arm” feeling.
She has difficulty with daily tasks particularly those tasks involving shoulder elevation and abduction.[146]
[145] Exhibit D4, DCB 55-60.
[146] Exhibit D4, DCB 55.
127.On clinical examination he found:
She is voluble.
With regard to the right shoulder, she has no scapula winging. No demonstrable hypermobility. Negative sulcus sign. No generalised hypermobility. No crepitus. She has flexion 130°, extension 50°, adduction 40°, abduction 120°, internal rotation 70°, external rotation 80°. Subacromial impingement signs positive. Speed’s and O’Brien’s signs negative. These do not exclude a small labral tear.[147]
[147] Exhibit D4, DCB 56.
128.Associate Professor Romas diagnosed “right shoulder impingement syndrome probably predisposed by a curved acromion”[148] but he considered it is questionable whether her current impingement syndrome is still linked to her preinjury employment.
[148] Exhibit D4, DCB 56.
Dr Leon Le Leu Occupational Physician
129.Dr Le Leu provided the defendant with a medico-legal report dated 29 June 2022[149] following a clinical assessment of the plaintiff. He recounted the plaintiff’s history and injury. He detailed her current symptoms to be:
Currently she does not have any pain in the right shoulder and particularly not sharp pain, but the shoulder does not feel right.
She has been told the right side is tighter than the left.
If she does certain movements, e.g., getting out of a car, she can experience dull pain over the mid-clavicular area.
She feels she is weaker in that arm but generally weaker in her whole upper body.
The shoulder sometimes clicks on movement.[150]
[149] Exhibit D5, DCB 69-78.
[150] Exhibit D5, DCB 72
130.Dr Le Leu explained that the plaintiff had described her limitation on activities as follows:
Movement:
Driving: she can drive but turning the wheel a lot can make it hurt. If she goes on long road trips, she might have to drive just using the left arm. Once it flares up, all movement hurts it takes a while to settle.
Shopping: she carries with her left arm.
Self-care/Maintenance:
Self-care tasks: she can do these things but with modifications, e.g., when passing clothes over her head, she leans over and uses gravity.
Sleeping: it affects her sleeping. She can lie on that side, but if she has been on it too long, she has to turn over and sometimes right arm is numb.
Housework/Yard work:
Miss Hatzissavas has two children aged 7 and 4 and she is the only person doing the housework.
Bed making: she has a bed with electric control. Before she had that, it was very challenging to make the bed.
Clothes washing and hanging: the biggest issue has always been hanging out the clothes, so she has a low-lying clotheshorse. She might have to do some hanging when she washes the bedding. She tries to do as much is possible with her left hand.
Cooking: she can cook but has all her spices in a shoebox and pulls them down with her left hand.
Dishwashing: she can do this without dropping anything.
Doorknobs: she still uses her right hand for these.
Gardening: there is a garden where she manages a veggie patch. She avoids doing heavy things. Her father comes around and does the heavier stuff.
Ironing: she does not do that. She used to do it occasionally her injury [sic] but now has clothes not requiring ironing or uses steam.
Jar lids, bottle tops: she opens these with difficulty since she is weak in her whole upper body.
Taps: she uses her right hand unless it is a hard tap when she will use both.
Vacuuming, sweeping, and mopping: she can’t do these tasks very long. She purchased a stick Dyson and got rid of her plug-in vacuum cleaner. She can do intermittent spot cleaning rather than a full half hour. Mopping is more likely to stir her up.
Wet area cleaning (bath/toilet/shower): she cannot scrub much with her right hand; she uses more the left.
Other:
Keyboard (computer/musical): she can use a computer keyboard well.
Writing: she can still write.
Childcare:
Her elder daughter, diagnosed with ADHD, has some medical problems – she is a lot more hands-on and is the one that triggers her shoulder. For some reason she cannot get support from the NDIS.
She does pick up her 4-year-old daughter, but she is compliant and easy.
Recreational restrictions:
she takes the children for walks, hiking and camping quite a lot. Usually she aggravates the shoulder at some point when camping; it may be just the drive that does it.[151]
[151] Exhibit D5, DCB 73-74.
131.In addressing any occupational restrictions that the plaintiff’s physical injury caused he said that:
(a) body functions (e.g., can’t lift arm above shoulder height)
She can lift her right arm above shoulder height but no weight greater than 1 kg above mid-breast level.
(b) weights (e.g., can lift up to 5kgs)
She can lift, carry, push, and pull up to 5 kg (or horizontal force equipment)
(c) repetition (e.g., can lift with reasonable repetition in accordance with the above restrictions)
She cannot do repetitive lifting of her right arm above mid-breast level.
(d) duration (should be able to perform activity in line with the above restrictions for 5 hours per day, 4 days per week)
She can perform activity consistent with the above restrictions for at least half time and possibly full-time in the right position. The reason she is not working full-time at present is her study. Currently she is subcontracted to a nursing agency and does casual work for the COVID-19 response.[152]
[152] Exhibit D5, DCB 76.
132.Dr Le Leu said that:
It is reasonable for her to continue her registered nurse training with the expectation that will open out career options in education and management, i.e., she will be able to leave the on-floor work and do work compatible with her shoulder. She would like to do mental health, oncology, or palliative nursing. All this seems quite achievable.[153]
[153] Exhibit D5, DCB 77.
133.He added that:
She is doing appropriate work at present as part of the COVID-19 response. Once she has achieved her RN degree, she will be able to go into education management areas which will be appropriate for her shoulder.[154]
[154] Exhibit D5, DCB 77.
Associate Professor Boffa
134.Associate Professor Boffa furnished medico-legal reports to the defendant’s solicitors dated 26 September 2017[155] and 6 October 2017.[156]
[155] Exhibit D2, DCB 30-34.
[156] Exhibit D2, DCB 35-40.
135.In his first report, Associate Professor Boffa obtained the plaintiff’s history, her current complaints, reviewed investigations performed and treatment undertaken together with her work arrangements.
136.Associate Professor Boffa concluded his report by answering a series of questions as follows:
1. What injury does the worker have?
The worker has right shoulder supraspinatus tendinitis.
2. What has caused the worker's injury?
The worker's injury was caused by manual handling in the course of her duties.
3. Can the worker return to preinjury duties and hours?
The worker is currently unable to return to preinjury duties and hours.
4. Does the worker have a current work capacity?
The worker has a current work capacity.
5. Can the worker return to modified preinjury duties alternate duties and hours?
The worker is fit for a graduated return to modified preinjury duties.
6. If the worker can return to modified preinjury duties and hours what restrictions do you recommend?
The worker is fit for a graduated return to modified preinjury duties that avoid repetitive right shoulder elevation, reaching, lifting and carrying more than 5 kg.
7. If the worker can return to alternative duties and hours what restrictions do you recommend?
The worker is fit for a graduated return to alternative duties that avoid repetitive right shoulder elevation, reaching, lifting and carrying more than 5 kg.
8. When can the worker return to work?The worker is fit to return to work when suitable modified preinjury duties and hours are identified on my worksite visit.
9. If you consider the worker has no current work capacity, why is that the case?
The worker has a current work capacity.
10. When should the worker's capacity for work be reviewed?
The worker's capacity should be reviewed following return from maternity leave if there has not been a full return at that time.
11. Is there anything other than injury affecting recovery including return to work?
There is nothing other than injury affecting recovery including return to work.[157]
[157] Exhibit D2, DCB 33-34.
137.In his second report Associate Professor Boffa concluded that:
the worker is a 27-year-old part time blood bank nurse with persistent right shoulder supraspinatus tendinitis. Based on my examination and worksite visit, I expect a return to preinjury hours over eight weeks. She will not return to preinjury duties before commencing maternity leave in December 2017.[158]
[158] Exhibit D2, DCB 40.
Defendant’s Submissions
138.Mr Storey submitted that the plaintiff should be assessed as presenting with a constitutional condition, namely a genetic defect in her acromion process and specifically a type 2 acromion process, that was at one point rendered symptomatic by her work duties.
139.Mr Storey relied on the opinion of Associate Professor Love who having seen the plaintiff in 2016, assessed her right shoulder condition as constitutional in nature but rendered more symptomatic by work and who, after examining the plaintiff in 2023, diagnosed a rotator cuff tendinosis of the right shoulder but of a mild degree and for which no further treatment was warranted.
140.Mr Storey submitted that despite the aggravation injury, the plaintiff was able to continue working for Red Cross for a period of time and as well, after returning from maternity leave, and she also subsequently was able to obtain employment in medical practices.
141.Mr Storey submitted that the plaintiff is able to engage in a range of work, as well as social and recreational activities.
142.Mr Storey addressed the opinion expressed by Mr Perera who examined the plaintiff in July 2020 and described her as presenting with:
…a congenital abnormality of the acromion process of the right shoulder which has contributed to some degree to her underlying problems, but the nature of her work which involves constant and repetitive work with the right arm at or above shoulder height, and constant reaching forwards with the right arm, has aggravated the underlying problem.[159]
[159] Exhibit D3, DCB 50.
143.Mr Storey also referred to Mr Perera’s reporting that the plaintiff, “has an underlying abnormality of the acromion process, which in my opinion has led to chronic sub acromial compression, impingement, and a chronic rotator cuff problem.”[160]
[160] Exhibit D3, DCB 47.
144.Mr Storey noted that despite the diagnostic conclusions reached by Mr Perera, on having been supplied for comment with a series of jobs including practice nurse, enrolled nurse, immunisation nurse, ward clerk and medical receptionist, he approved each of them, an opinion which Mr Storey submitted, speaks to the true range of the plaintiff’s function, and future prospects with respect to work, and her enjoyment of the same.
145.Mr Storey referred to the opinion of Associate Professor Romas who assessed the plaintiff in December 2021, and reported, “The right shoulder impingement syndrome predisposed by the curved acromion.”[161]
[161] Exhibit D4, DCB 56.
146.Mr Storey submitted that it is relevant that Associate Professor Romas questioned if the impingement syndrome is still linked to the plaintiff’s pre-injury employment.[162] In other words, Mr Storey submitted, Associate Professor Romas had intimated that despite there having been suffered an aggravation at one point, the aggravation may have abated, if not resolved, by December 2021.
[162] Exhibit D4, DCB 56.
147.Mr Storey referred to the report on examination of the plaintiff by Dr Le Leu of June 2022,[163] which he submitted was relevant to a judgement about the extent of the plaintiff’s pain in light of his account that the plaintiff said there was an absence of pain in her right shoulder. The plaintiff endeavoured to explain her account to him when she said, “I would say that I experienced pain daily. If he asked me at that particular moment in time if I had any pain, if I didn't I would have declared so and I believe that that's is what's reflected here.”[164] Mr Storey implied that the plaintiff’s evidence by way of explanation for her account to him was disingenuous.
[163] Exhibit D5, DCB 69-78.
[164] T44, L25-28.
148.Mr Storey highlighted that Dr Le Leu reported that the plaintiff was not in receipt of medication other than occasional Nurofen and that she was currently not working due to full time study, and that the absence of medication and her proved capacity for study belie the plaintiff experiencing pain to the degree she would have the Court accept.
149.In seeking to meet the plaintiff’s expressed aversion to strong medication, Mr Storey argued that it might be anticipated that the plaintiff’s attitude to the avoidance of prescription medication would appear regularly from her treating practitioner reports or from other reports or records, but that it does not, and that instead, I should prefer that the plaintiff does not take prescription medication because it is not required.
150.In addressing the plaintiff’s medical reports Mr Storey referred to Dr Sullivan who noted a soft tissue injury of the right shoulder.[165] Mr Storey relied on the absence of radiological evidence to support Dr Sullivan’s finding. Mr Storey contended that all the scans had revealed essentially normal findings.
[165] Exhibit P11, PCB 70.
151.Mr Storey argued that despite the genetic defect of some right shoulder impingement the defendant accepts that it has occasionally been rendered symptomatic by over arm activity, including at work. However, Mr Storey challenged the commentary from Dr Sullivan of a post traumatic pain condition. He submitted that it is a curious diagnosis to reach in the absence of evidence of trauma, or an exposition of Dr Sullivan’s understanding of the condition. In any event, Mr Storey noted that although Dr Sullivan spoke of an underlying organic basis to the plaintiff’s condition, he believed that following the completion of her nursing degree she will present with a capacity to return to some sort of work.
152.Mr Storey addressed the report of Dr Chehata’s opinion[166] that:
The diagnosis appears to be impingement or a bursitis in the right upper limb.
[166] Exhibit P11.
Treatment has been conservative, apart from a cortisone injection into that right shoulder.
Her present symptoms and treatment requirements appear to be more related to repetitive overhead activity which causes ongoing intermittent pain.
The prognosis is certainly not clear. There is a potential diagnosis of a potential soft tissue bursitis or impingement, the actual cause of her symptoms at this stage is vague.[167]
[167] Exhibit P11, PCB 81.
153.Mr Storey pointed out that Dr Chehata thought the plaintiff could return to pre-injury employment as a nurse and did not consider surgery was necessary.
154.Mr Storey submitted that is highly relevant that Dr Chehata had not suggested that the plaintiff’s work-related activities from 2014/15 continued to affect her shoulder.
155.In terms of the plaintiff’s sport and recreational activities, Mr Storey submitted that it is implausible that over the course of four years during which time the plaintiff has attended on doctors and complained of pain interfering with her domestic life and pain of such a degree that she even struggles “to reach into a cupboard or hang up a plastic blood bag"[168] she proved able to engage in playing basketball and at time up to twice a week while working. Mr Storey argued that the plaintiff’s explanation that she really did not do much when she played a game and that her team members avoided passing to her and that she was just there “making up the numbers"[169] is disingenuous. Mr Storey argued that it stands to reason that there will be occasions during a basketball match when the plaintiff would have been required to run up and down the court and engage in dribbling, shooting, rebounding, passing, all of which are activities that involve the use of her arms and, moreover, it is a pursuit that the plaintiff participated in and enjoyed for several years after the onset of injury. Mr Storey submitted that this reveals in no small measure the true extent of the pain and the true extent of the claimed lack of function and of a range of movement of the right shoulder that should not be regarded as serious.
[168] T61, L20-21 (final address).
[169] T61, L25 (final address).
156.Mr Storey also relied on the plaintiff’s evidence that she has been able to participate in camping multiple times per year and that camping involves exertions, including packing up a car and children and driving a lengthy time to the destination and unloading, setting up a tent and doing all of the same in reverse when leaving, and undertaking these varied activities, largely on her own.
157.In terms of the plaintiff’s recent travel, Mr Storey submitted I should regard travel overseas with children for a single parent as a very difficult thing to do at the best of times and yet the plaintiff testified that she had been able to do so and had visited Greece more than once.
158.Mr Storey observed that the plaintiff’s treatment has been minimal and conservative and comprised physiotherapy and some myotherapy and one injection.
159.Mr Storey accepted that the defendant was not able to gainsay the plaintiff’s account of experiencing poor sleep.
160.Mr Storey submitted that the plaintiff is very mobile and has been able to participate in basketball games, camping, travelling overseas, working and studying and collecting her children to and from school and that she lives independently and is not dependent on anyone for self-care and self-management, and such references to difficulty with vacuuming and household activities, are limited and that she has not experienced any impairment to cognitive functioning.
Plaintiff’s Submissions
161.Mr McNab submitted that whatever nomenclature is appropriate to be applied to the plaintiff’s injury, the issue in contest is not its diagnosis so much as the extent to which an accepted impairment might be found to have retreated or abated, and if not, to what extent it continues to be the cause of consequential effects for the plaintiff. He submitted that the sum total effect of the consequences the plaintiff suffers should be regarded as satisfying the test for the grant of a certificate for pain and suffering.
162.Mr McNab relied on the plaintiff’s age as a relevant consideration and submitted that given the plaintiff is 32, she has already carried the effects of her injury for some 8 years, and that the evidence ought to be assessed as sufficient to enable a finding that she is likely to continue to experience ongoing pain and restrictions in various activities of her life for the foreseeable future.
163.Mr McNab urged me to conclude that the plaintiff gave her evidence about the extent and level of her activity and of her pain in a credible fashion and, had not shied away from the fact of playing basketball. She was entitled to have disputed the accuracy of the records of the number of games she played, as well as the physical intensity it was suggested she must have brought to playing a game of basketball. Mr McNab submitted that the plaintiff’s evidence was that with basketball, as with driving or camping or travelling overseas, she would suffer pain and restrictions for variable periods of time in the wake of exertions with her use of her right shoulder and arm.
164.In distilling his submissions, Mr McNab nonetheless observed, that if the case he was advocating was limited to one of pain and the treatment the plaintiff had received and interferences and restrictions to the ability to engage in social and domestic activities, then the application might be in doubt[170] but when the restrictions on the plaintiff’s professional activities in a career in nursing is also considered, then overall, the plaintiff had established very considerable consequences.
[170] See T68, L7-11.
Analysis
165.It is uncontroversial that the plaintiff presented at all relevant times with a genetic condition of the acromion of the right shoulder. By all accounts, it was asymptomatic before the plaintiff’s work with the relevant employer Red Cross commenced in 2011. There are no medical records or reporting to suggest otherwise. Therefore, it seems to me to be more probable than not, that it was the duties in which the plaintiff was engaged with Red Cross that gave rise to the right shoulder condition becoming symptomatic from at least about 2013 or 2014. Therefore, it is not surprising, that work being the cause of the aggravation was not contested by the defendant.
166.It is also uncontroversial that the plaintiff largely self-managed the onset of the aggravation of her shoulder condition brought on by her work and continued in her employment. She resorted to physiotherapy, although the records of attendances for physiotherapy after the date the plaintiff identified as the appreciable onset of the condition, were not for her right shoulder condition but instead for her neck and for low back pain in the sacrum and the lower lumbar spine.
167.It was not whilst engaged in her work, but instead during the plaintiff’s first period of maternity leave of about February 2015 to December 2015 that her right shoulder is first recorded in the physiotherapy records. Specifically, on 22 April 2015, it was noted by Chelsea Smith at Glen Eira Physiotherapy that the plaintiff’s main presenting problem was right anterior shoulder pain and was similar to an issue she had experienced in the past and that had led to a diagnosis of bursitis.
168.In a similar vein, on 27 July 2015, an entry recorded that the plaintiff had been doing a lot of lifting and of looking down attending to her baby daughter and that her right shoulder had flared up of late and as well that, as a result of an unrelated sickness she had been unable to exercise at the gym with her believing she had lost conditioning that had contributed to her condition. Also, on 21 August 2015 it was recorded in the physiotherapy notes that the plaintiff’s ongoing right anterior shoulder pain was aggravated from the holding of her baby daughter and from breastfeeding.
169.Despite the right shoulder condition being symptomatic and being recorded as such by the plaintiff’s physiotherapist in July 2015 and August 2015, the plaintiff travelled to Greece in November 2015. She then returned to work with Red Cross in about January 2016. The resumption of her employment duties appears to have reinvigorated right shoulder pain and prompted the lodgement of her workers’ claim that was accepted.
170.Radiologically there is nothing of significance that has been recorded. Ultrasound and x-ray from 15 April 2016 were benign and revealed that the:
The long head of the bicep, subscapularis, supraspinatus and infraspinatus tendons are intact. No fluid is present in the long head of bicep tendon sheet or subdeltoid bursa.
The patient is able to reach full abduction without bunching of the bursa under the coraco-acromial ligament.
Plain X-ray showed the glenohumeral joint appeared normal. No soft tissue calcifications are present, no rotator cuff tear.[171]
[171] Exhibit P10.
171.MRI scan taken not long on 21 June 2016[172] was assessed as normal too, with the findings being:
Rotator cuff and biceps tendons are normal. Muscle belly bulk is preserved.
Normal AC joint. Mildly laterally downward sloping anterior acromion. Acromion undersurface is type 2, concave. No subacromial spur nor os acromiale. Normal subacromial bursa.
Labrum and articular cartilage are normal. No features of glenohumeral capsulitis.[173]
[172] Exhibit P10, PCB 64.
[173] Exhibit P10, PCB 64.
172.The plaintiff had been aware of the nature of her genetic right shoulder condition for some time. Mr Perera reported that Mr Proper had explained to the plaintiff the effects of her genetic condition when he wrote that:
she had seen Mr Stewart Proper an Orthopaedic Surgeon who had investigated her with an MRI scan of the shoulder, but as I have stated previously, I have not seen any of these reports myself. Apparently, he had told her that she had a genetic predisposition to problems with the shoulder, and correspondence from one of her treating physiotherapists, also appears to confirm this issue with her shoulder, related toa Type 2 acromion process. Apparently, Mr Proper had informed her that there was not a lot of clearance at the top of her shoulder and he was concerned that she could subsequently develop a spur at the top of the shoulder, resulting in a subacromial abnormality.[174]
[174] Exhibit D3, DCB 45.
173.Following the making of her workers’ claim, the plaintiff continued in her employment with Red Cross. She said that she was reluctant to seek out pain relief by way of prescribed medications and instead, her management of her condition consisted of her continuing with physiotherapy and regular exercise, including on occasions attending her gym up to three times a week along with the use of free weights and she was also playing basketball for fitness and enjoyment. It seems likely that she was also swimming on occasions during 2017, although limiting her type of stroke.
174.Towards the end of the plaintiff’s two year absence from work on maternity leave but before returning to Red Cross in January 2020, the plaintiff worked sporadic and casual hours with the Station Street Medical Centre. The evidence does not implicate her right shoulder as the reason for the sporadic hours as opposed to, for example, operational reasons at the Medical Centre. However, the plaintiff’s return to Red Cross lasted barely a month before she returned to the Station Street Medical Centre although, she said that she was unable to establish a consistent pattern of hours.
175.In about February 2021, the plaintiff commenced studying for the degree of Bachelor of Nursing as a full-time student. She had some periods off work during university vacations.
176.As far as the plaintiff’s studies are concerned, it strikes me as entirely explicable that labouring with a genetic right shoulder condition that responded poorly to and was aggravated by some of the repetitive overarm activities encountered at Red Cross, that the plaintiff envisaged studying and obtaining a qualification that could lead to a nursing career that was more administrative in nature and less physically demanding.
177.The plaintiff has proved intellectually adept in her academic course work. Although she spoke in her evidence of always encountering difficulties with course placements as part of her studies, her evidence that she was unable to complete a placement was, as I have earlier set out, for reasons unrelated to her health generally or specifically to her right shoulder.
178.I am not satisfied the plaintiff deferred her university studies because the effects of her right shoulder condition impacted her capacity to complete placements. The plaintiff’s evidence on the matter was that she was taking each placement as it came and that “If I run into a barrier where, let's say hospital based working wouldn’t accept my shoulder restrictions or accommodation, I would not be able to meet the inherent requirements of the course to complete that placement.”[175] There is an absence of objective evidence to support the plaintiff’s assertion that she faced or was confronted by any refusal by any hospital to accept or meet the restrictions she contemplated she might have encountered as part of a study placement.
[175] T26, L6-9.
179.Allied to, but advanced as a distinct and serious consequence of injury, Mr McNab relied on the prospect of the plaintiff being restricted in her future work not only as an enrolled nurse but also in her prospects of obtaining employment should she complete her degree and become qualified as a registered nurse. Mr McNab put the matter in these terms when he submitted that “quite clearly if we were presenting the case …saying it's pain and treatment and the domestic – social domestic activities, we don't get there. But when you put the restrictions on her professional activities, we say that's enough to get her over the line….in terms of establishing very considerable consequences. Particularly in light of her youthful years”.[176] As part of this submission, Mr McNab argued that I should accept the plaintiff’s evidence that she is pursuing less arduous work (that is, to say, that she hopes to return to studies, complete her degree, qualify as a registered nurse and secure employment that proves less physically arduous for the use of her right shoulder than some aspects of general nursing) because of her injury. He elaborated by referring to what he described as a question mark that lingers over the plaintiff and whether she will have the capacity to complete her degree and he again referred to the plaintiff’s evidence of the difficulties encountered in hospital placements by reason of her restrictions. Mr McNab also adverted to a reference by Dr Sullivan of the plaintiff suffering a chronic pain syndrome. Ultimately, Mr McNab contended, “this young lady's employment paddock, Your Honour, is permanently restricted. Permanently restricted to light work. To her credit she's made an effort to position herself in lighter work but there's a question whether she’ll get there. But even …in that more advanced job, if you like, as a registered nurse, her options will always be restricted.”[177]
[176]T68, L8-15.
[177] T69, L11-22.
180.I accept Mr McNab’s submission that the plaintiff commenced the degree course with the aim to position herself into lighter work but with the desire that nursing remain her career of choice. The plaintiff deposed in her further affidavit that she enrolled in a Bachelor of Nursing to further her ability to work as a nurse and said, “that it would be devastating to me to lose my chosen career.” [178]
[178]Exhibit P1, PCB 89.
181.I have already found that on the state of the evidence I do not accept it as more probable than not that the plaintiff is unable to return to studies and complete her degree because of the condition of her right shoulder. The explanation offered in the evidence as to why the plaintiff deferred study was because of the apprehension she harboured that she would be unable to complete placements, but as I have explained, that is not supported by her answers in cross-examination or by medical or occupational opinion.
182.In light of my finding that there is a lack of satisfactory evidence that the plaintiff will be unable to complete her degree because of her right shoulder condition, the question is reduced to whether the restrictions that have been identified as suitable by those who have examined her, including on behalf of the defendant, and assuming the same are likely to be required indefinitely, give rise to a real risk that because of the same she would be forestalled as a registered nurse from the ability to obtain employment in positions that are more managerial and less physically demanding than those of an enrolled nurse. The evidence that the plaintiff’s restrictions would disadvantage her in future employment are dependent on the plaintiff’s say so and I am not persuaded of it. I am also satisfied that the plaintiff has a capacity to work as an enrolled nurse within identified limitations.
183.Mr Perera examined the plaintiff at the defendant’s request and was supplied for comment, a series of jobs that a Nabenet Vocational Assessment report dated 26 August 2020 had proposed as suitable employment for the plaintiff. At the date of Mr Perera’s report, the plaintiff was employed as a practice nurse. The suitable employment proposed by Nabenet consisted of an enrolled nurse, an immunisation nurse, a ward clerk and a medical receptionist, that is, non-registered nursing jobs.
184.Mr Perera’s report included that the plaintiff still had restrictions with working repetitively with the right arm at or above shoulder height, and with repetitive lifting with the right arm above waist height and above shoulder height. He recognised that the plaintiff also had some restrictions with repetitive reaching forward to carry out tasks, which he considered, may be aggravated if she is reaching forward carrying weight over 10kg in her right hand but that if the weight is carried close to her body, she should be capable of carrying such weight up to waist height. He said that she would be advised to avoid repetitively lifting over 10kg in weight at or above shoulder height on the right side.
185.Mr Perera had regard to the plaintiff’s significant experience and training and knowledge obtained in her work with Red Cross, and that the plaintiff had a current work capacity for suitable employment with it, dependent on appropriate rotations of the tasks she was expected to carry out. He was aware that the plasmapheresis had been identified as having the potential to aggravate the plaintiff’s right shoulder, and he considered that it would be advisable to limit or restrict such activity if and when she returned to working with Red Cross.
186.In a supplementary report, Mr Perera said that as far as other identified suitable employment options identified by Nabenet were concerned, it would be necessary for the restrictions he had earlier reported to be observed should the plaintiff be allocated different tasks. Overall, however, in his opinion, the plaintiff possessed a current work capacity for each of the suitable employment options listed.
187.Mr Perera recommended that the plaintiff should be encouraged to undertake and continue with her training to become a Division 1 Nurse, given her significant experience and skills which could be utilised in this type of work.
188.I am satisfied that the plaintiff suffered an aggravation of her constitutional right shoulder defect that is related to her work duties with Red Cross such that the condition became symptomatic in consequence of the same.
189.The appropriate diagnosis is a congenital abnormality of the acromion process of the right shoulder with impingement or a bursitis in the right upper limb.
190.The nature of some of the plaintiff’s duties in her work with Red Cross which involved constant and repetitive work with the right arm at or above shoulder height, and constant reaching forwards with the right arm, aggravated the underlying problem.[179]
[179] Exhibit D3, DCB 50.
191.The plaintiff still has some residual work caused impairment, and the right shoulder’s function warrants some restrictions in its use and in lifting.
192.The plaintiff has been keen to remain fit and active. It is obvious that she has a long and established love for, and derived enjoyment from, playing basketball and that she continued to participate in the game well after the onset of symptomology in her right shoulder. I place limited weight on the records the defendant relied on for the purpose of identifying the frequency of the games she played in the relevant season to which they related, because I accept the plaintiff’s evidence that she was absent from Australia at times when she is recorded as having played a game. In short, the record is an unreliable document. The better evidence is from the plaintiff who admitted to playing basketball whenever she could, including on occasions, playing for two teams during a week.
193.There is an absence of evidence by the plaintiff that on any occasion other than when she was away overseas, that she did not play basketball because of the condition of her right shoulder. Instead, the plaintiff’s evidence is that the quality of the game she played was diminished because of her right shoulder and that after having played a game she would, as it might be said, “carry the consequences” by way of pain for variable periods of time. She said her teammates accommodated her limitations in the course of a game.
194.Accepting as I do, that the plaintiff has a right shoulder condition that caused pain and restriction, I accept her evidence that she played a less frantic and physical form of the game that one might envisage of the sport. I find that nonetheless, the plaintiff played basketball regularly with her right shoulder condition. Although the plaintiff’s capacity to continue to play may have been borne of an admirable tenacity, nonetheless, I find her participation is inconsistent with the account of pain she reported to doctors from which she was labouring at times that coincide with her playing the sport.
195.I have considered the plaintiff’s evidence that she has not played a game of basketball since August 2022 because she could not play pain free.[180] However, according to the plaintiff since the onset of the aggravation, pain in some form has accompanied her playing a game. There is no medical evidence identifying a deterioration of the right shoulder that would explain why the plaintiff ceased participating in the competition altogether in about August 2022. It may be that the plaintiff became apprehensive about a risk of causing further injury if she continued to play, but whatever the reason, I am not persuaded that the plaintiff had reached the stage that she was fed up with pain in playing a game or in consequence of having played a game. After all, the plaintiff had proved able and willing to play in competition basketball while in work and often at the end of a day’s work when according to her she was at her worst. I place no store on Dr Sullivan’s references to a chronic pain syndrome nor, to his additional diagnosis of PTSD. There is no exposed reasoning for these outlier diagnoses on his part, and moreover, his report failed to address the fact of the plaintiff’s frequent playing of basketball since the onset of symptomology.
[180]T51, L18-20.
196.Other than rock climbing and bike riding, which the plaintiff deposed were recreational pursuits before the onset of injury and that she has tried since but said she has found too difficult,[181] the adverse effects of the right shoulder on her ability to pursue the balance of her activities has proved minimal. There is no evidence that the plaintiff’s pursuit of camping has diminished in consequence of her right shoulder, and in fact she frankly volunteered to Mr Storey in cross-examination when asked by him whether she still went camping, that she did and when questioned as to how many camping trips a year she would take with her children she said, “at least two, but it would – it would be a number higher than that.”[182] In addition to camping trips, the plaintiff’s capacity to travel long distances overseas and to manage luggage and children has remained. The evidence does not support a finding that she has travelled any less since the onset of the shoulder symptomology. Furthermore, there is evidence that after the onset of the injury the plaintiff returned to gym work, including the use of free weights and which she said was on the recommendation of her physiotherapist. As to swimming, the plaintiff was unsure when and if she had been swimming since the injury however, Dr Sullivan reported in 2022, that the plaintiff was swimming but had modified her approach.[183]
[181]Exhibit P1, PCB 33.
[182] T27, L20-21.
[183]Exhibit P11, PCB 68.
197.The plaintiff’s constitutional right shoulder condition proved problematic in her ability to perform the hanging of the saline bag as part of her duties at Red Cross, but the medical opinion evidence is that the plaintiff should be able to work as an enrolled nurse with appropriate restrictions.
198.My findings have also been informed and enlivened by Haden Engineering Pty Ltd v McKinnon[184] in which Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’ [185]
[184] (2010) 31 VR 1 (‘Haden’).
[185]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27].
199.Adopting and adapting the passage just cited to the findings I have made, I am not persuaded that the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life, when due consideration is afforded to what has been lost with what has been retained, results in the plaintiff’s losses attributable to an ongoing aggravation injury being serious although not trivial.
200.In addition, it is in the passage that follows and also from Haden to which Mr McNab’s submission about career resonates. In addressing the effects of impairment to work, the President said:
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.85 What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].[186]
[186]Reference was again made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [25].
201.I do not accept that an area of work has been closed off to the plaintiff. Obviously enough, after leaving Red Cross the plaintiff worked performing general nursing duties, and with appropriate modifications, the medical evidence is very much that she can continue to do so. I am not satisfied the evidence supports a reasonable basis to find that if the plaintiff returns to studies and qualifies and pursues employment options that such a degree may enhance, that her career options would be adversely affected by the restrictions and limitations that have previously been suggested as warranted.
202.In Haden, Maxwell P, identified a non-exhaustive and non-prescriptive list of ordinary activities which may be affected by a “very considerable” injury and they included interference to:
· sleep;
· mobility;
· cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.
203.In addressing the indicia discussed in Haden, the plaintiff does not rely on most of those identified in it, including mobility, cognitive functioning or interference with intimacy. The evidence of interference with the plaintiff’s capacity for self-care and self-management is minimal. There are accounts in the reporting of the plaintiff being required to adapt to the performance of some tasks around the home, but again they are not adaptations that were emphasised as operating in a significant way to affect the plaintiff’s domestic functioning. I accept that there is evidence of interruption to sleep and that the plaintiff said that she finds it uncomfortable sleeping on her right side as it increases her right shoulder pain, and she tends to wake up most nights from pain. She deposed in her most recent affidavit that she could not remember the last time she had a good night's sleep and she wakes very tired and that many days are a struggle. The plaintiff attributed the deterioration of sleep to the worsening of her symptoms. Whilst the interference with sleep and the recuperative benefits of sleep can be serious, I am not satisfied of the plaintiff’s account of a worsening of her symptoms or the account of her ability to care for and play about with her children being detrimentally affected by the extent of ongoing aggravation. While I regard it as more probable than not that the plaintiff may experience some occasions when sleep is disturbed due to pressure felt to the right shoulder and arm, I am unable to accept that there has been an increase in the same because of a deterioration in her injury and the symptoms accompanying it. Also, although there are occasions whereby aspects of recreational pursuits and long travelling can contribute to the plaintiff experiencing episodes of pain, I do not accept the occurrence of pain has increased or that the plaintiff suffers daily pain and instead I prefer that the account attributed to the plaintiff by Dr Le Lou.
204.On the matter of the plaintiff’s credibility, I consider that the plaintiff generally presented favourably, but as my reasons identify, I also find that she was conscious of and endeavoured to underplay the discordance that exists between the claimed extent of her pain and her proved capacities across a field of endeavours, recreationally and travel related and, indeed, in working and studying, the sum total of which belie a finding the plaintiff’s injury is to be assessed as a serious injury.
205.In conclusion, and taking into account all of the evidence relied on by the plaintiff, I am satisfied on the balance of probabilities that although the work related aggravation is still operative, it has abated to the extent, that for some time, the precise date of which cannot be ascertained, but certainly as at the date of the hearing of the application, the effects of the same by way of pain and suffering do not operate to impact the plaintiff to a degree sufficient to satisfy the requirement for a finding of seriousness. The extent to which restriction and limitation to the use of the right shoulder and arm prevails and may continue indefinitely to do so, and the effects on the plaintiff caused by it, do not amount to being at least very considerable.
206.The application is refused. I will hear the parties on costs.
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