Hopgood v Woolworths Limited
[2013] VCC 994
•29 May 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04161
| JANELLE HOPGOOD | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 20 and 21 May 2013 | |
DATE OF JUDGMENT: | 29 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Hopgood v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 994 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the left shoulder – non organic factors – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
CASES CITED – Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Mutual Cleaning & Maintenance Pty Ld v Stamboulakis (2007) 15 VR 649; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Zivolic v Hella Australia Pty Ltd (2007) VSCA 142; Gorgiev v Healthscope Ltd [2008] VCC 1443; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon |
| For the Defendant | Mr A Saunders | Gadens |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 9 October 2002 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left shoulder.
5 There was also an application pursuant to sub section (c) for a psychiatric impairment relating to the diagnosis of chronic pain syndrome.
6 I accept that a chronic pain syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[1]
[1][2005] VSCA 227
7 Whilst this impairment was relied upon in the alternative, the main emphasis was on the application pursuant to (a) and submissions were not made in support of the application relating to psychiatric impairment.
8 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
9 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
10 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
11 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
12 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
Background
19 The plaintiff is aged forty, having been born in August 1972. She is single and naturally right handed.
20 Having finished Year 10, the plaintiff’s further training is limited to completing a Certificate III in Woolworths Store Operations.
21 Since leaving school, the plaintiff has worked as a waitress, kitchenhand and cook, doing the usual tasks involved in those jobs.
22 The plaintiff commenced full time employment with the defendant on 8 November 2000 as a delicatessen shop assistant, undertaking a full range of duties, supervising staff and from time to time and organising rosters.
23 The plaintiff’s work involved a wide variety of physical tasks – lifting, carrying and moving boxes and cartons of food, retrieving items from the cool room, disposing of empty boxes and cartons and rubbish. The work was repetitive and moderate to heavy (“the duties”).
24 On the said date, the plaintiff was walking in the kitchen area of the delicatessen towards the cool room when she slipped and fell heavily on the concrete floor (“the incident”). Thereafter the plaintiff was immediately aware of severe pain in her left shoulder and neck and she reported the incident.
25 The plaintiff sought medical treatment from Dr Kalnin, who referred her to the Latrobe Regional Hospital for x-rays. The plaintiff was then under the care of her regular doctor, Dr Kiriakova, who prescribed medication and referred her for physiotherapy. The plaintiff remained off work for a couple of weeks and then returned part time.
26 The plaintiff’s left arm and shoulder condition did not improve and she was experiencing ongoing pain and restricted movement in her left shoulder. She was referred by her general practitioner to Mr Owen, orthopaedic surgeon, whom she saw in December 2002. He advised she continue with physiotherapy, massage and medication, and told her that the injury should improve.
27 In cross examination, the plaintiff agreed she may have been anxious when she saw Mr Owen but she denied hyperventilating.[4] She could not remember him trying to reassure her that she would get better. The plaintiff agreed that he suggested some stretches and possibly using a heat bag and he encouraged her to stay at work.[5]
[4]T12
[5]T13
28 The plaintiff tried to keep working but had great difficulty coping with many physical tasks requiring use of both arms.
29 In early 2003, the plaintiff was referred to Mr Gardiner, orthopaedic surgeon, whom she saw twice. He advised surgery would not help and suggested the plaintiff continue with conservative treatment.
30 The plaintiff agreed she then complained of pain in the left side of her neck and around her upper chest. Mr Gardiner referred the plaintiff to a musculoskeletal specialist but she could not recall seeing Dr Jensen.[6]
[6]T14
31 The plaintiff remained at work on restricted modified duties avoiding tasks or activities which provoked pain and problems for her left shoulder and arm.
32 The plaintiff was referred by Dr Edwards to Mr Paxinos, orthopaedic surgeon, whom she saw in August 2003. He recommended a cortisone injection which was undertaken using an ultrasound on 12 September 2003.
33 Mr Paxinos suggested the plaintiff continue working with restrictions involving no overhead lifting or lifting moderate or heavy weights, working four hours a day.
34 The left shoulder injection did not make any difference to the plaintiff’s pain and her movements remained restricted. Mr Paxinos recommended an arthroscopy which was carried out on 7 January 2004. The plaintiff understood that procedure showed damage within the left shoulder joint and surgery was then performed to repair the damage (“the surgery”). Thereafter the plaintiff’s left upper limb was placed in a sling and she was referred for physiotherapy.
35 During 2004, the plaintiff remained under Mr Paxinos’s care. The surgery made little difference to her left arm function; in fact it made it worse.[7]
[7]T16
36 The plaintiff continued to experience ongoing pain, the severity of which fluctuated according to movement, and use of her upper limb remained severely restricted.
37 In cross examination, the plaintiff was asked about an attendance in 2005 with Dr Cunningham, whom she thought was a psychiatrist. She agreed she could have been irritable and frustrated when she saw him and she also agreed that she had a psychological impact from her injury.[8]
[8]T19
38 Despite ongoing problems with her left upper limb, the plaintiff tried again to work on modified duties, working two to three hours a day. She could not do work involving repeated lifting or overhead tasks or movements and she struggled to cope with the chronic problems she was experiencing with her left shoulder and arm.
39 In about mid 2004, the plaintiff was referred by Mr Paxinos to Dr Blombery, vascular surgeon, for specialised pain management. Dr Blombery prescribed Prednisolone and Neurontin which had little effect on the plaintiff’s ongoing left shoulder pain and problems.[9] She continued regular physiotherapy which she required to enable her to keep working part time two to three hours a day.
[9]T18
40 Dr Blombery told the plaintiff that she might have pain syndrome but she did not agree with him.[10] It was not all in her head. The reason she was like she is now was because of what she had been through over the years since the incident and what had happened to her.
[10]T17
41 The plaintiff was advised by her physiotherapist, Dr Blombery and Mr Paxinos to continue with physiotherapy but if her left shoulder and arm failed to improve, she may require further surgery.
42 Mr Paxinos arranged an MRI of the plaintiff’s left shoulder in September 2004. He advised her that investigation showed a tendon tear in her left shoulder as well as an ongoing degenerative process. Mr Paxinos advised that it would be a protracted long term problem for the plaintiff. He told her that he did not think she required further surgery and that he could not help any more.
43 Mr Paxinos recommended the plaintiff continue working but only with restrictions on overhead activities, lifting and avoiding repetitive forceful tasks and to adjust her hours of work so that her pain levels were controlled.
44 The plaintiff remained at work under return to work plans prepared by the defendant and worked within the hours and restrictions on physical tasks and activities as recommended by her doctors. During 2005 the plaintiff continued at work having regular physiotherapy. She used medication including Tramadol for pain. She was only working two to three hours a day and was having chronic unremitting problems with her left shoulder and arm.
45 When the plaintiff’s payments stopped in about 2005, she tried to get back to an eight hour day and lasted only a week and had to go back to her doctor. She had also tried to work five hours a day but just could not manage.[11] Increasing her hours only made her left shoulder and neck pain worse.
[11]T8
46 The plaintiff has probably been working thirteen hours per week since about 2005, working Monday to Thursday, two and a half hours, and three hours on a Sunday. She had been unable to return to full time unrestricted work for the defendant and was unfit for full time work. She continued to work with restrictions for limited numbers of hours.
47 Despite ongoing treatment, little, if any, improvement had been achieved in the plaintiff’s left shoulder and arm function and in late 2005, she was referred to Mr Evans, orthopaedic surgeon.
48 The plaintiff saw Mr Evans in January 2006 as Mr Paxinos had died. Mr Evans advised her that her problems were complex and he was unsure what, if any, further treatment would help. He also told her he was unable to reach a firm diagnosis because of the significant level of pain and restricted movement she was experiencing. He advised that his examination suggested the plaintiff had developed a frozen left shoulder.
49 Mr Evans arranged a hydrodilatation of the plaintiff’s left shoulder which was carried out in January 2006. That treatment gave the plaintiff no sustained or ongoing improvement or symptom relief and Mr Evans advised he could not offer further treatment for her.
50 The plaintiff agreed she had a lot of treatment but nothing had helped.[12]
[12]T20
51 The plaintiff could not recall seeing Mr Barwood, a shoulder specialist towards the middle of 2008.
52 The plaintiff agreed she saw Mr Evans again in about 2009 and she agreed that by October her condition had remained unchanged.[13] Despite multiple treatments, her shoulder continued to cause her trouble. In cross examination, the plaintiff agreed that she had seen a number of doctors and had multiple therapies without any success.[14]
[13]T22
[14]T20
53 The plaintiff could not recall a further MRI in August 2009.[15] When asked about Mr Evans’ view that the second MRI did not show up what was causing her pain, the plaintiff explained that when you have a tear, scar tissue can heal over the tear, and that is maybe why Mr Evans could not pick it up. She did not know.[16] She could not recall what specialist had told her about the scar tissue.
[15]T22
[16]T23
Progress
54 When she swore her first affidavit in December 2010, the plaintiff continued to suffer constant left shoulder pain with very restricted movement. She lacked strength and power in her left shoulder and arm. Her left arm was much weaker than her right and she felt like the muscles around her shoulder had wasted.
55 Pain in the plaintiff’s left shoulder and into her left arm was made worse by activity which also increased the discomfort and pain she experienced in her neck. The plaintiff was in constant pain every day and was never free of pain. She had experienced chronic ongoing pain since the incident and was sick and tired of the pain and ongoing problems with her left shoulder and arm and to a lesser extent, her neck.
56 Since 2004, the plaintiff had become increasingly depressed because of the severity of her pain and the continuing disability and loss of function of her left shoulder and arm. The ongoing, fluctuating pain really got her down and she had been referred for counselling with a psychologist and had been prescribed Zoloft, an anti-depressant.
57 The plaintiff was hopeful that over time and with treatment she would obtain sustained relief from the chronic pain and disability in her left shoulder and arm and to a lesser extent her neck but that had not happened. She remained determined to stay at work with the defendant and try and return to normal duties but physically things had been very hard for her.
58 The plaintiff had felt frustrated, distressed and at times very angry at the ongoing problems she continued to experience in her left shoulder, arm and neck. She would have loved to return to full time work but that then seemed impossible.
59 The plaintiff was then working thirteen hours a week over five days. Dr Edwards provided her with work certificates for three monthly periods. She continued to work with restrictions as to overhead lifting and repetitive or forceful activities. The plaintiff tried to increase her hours with those restrictions but had experienced a marked increase in pain and greater restriction of her left shoulder and arm.
60 The plaintiff was then earning $282 gross per week being paid $19.50 an hour. Without her injury, she would have expected to earn $819 gross per week and also significant weekend penalty rates of $29.25 per hour, especially on Sundays. Because of her injuries, the plaintiff was no longer capable of earning the hourly gross and full time weekly wage payable to a delicatessen shop assistant.
61 As a result of her injury, disability and loss of function of the left shoulder and arm, many simple daily tasks and activities were much harder for the plaintiff. Personal hygiene and grooming, for example, getting her hair in a ponytail was very difficult. Unscrewing the caps or lids of jars was also very difficult and tasks that required her to have her left arm or shoulder in static position for a sustained period, or which required forceful repetitive movements or strength of her left shoulder and arm were also very difficult and those activities caused her pain. Other simple activities, such as housework, including laundry and vacuuming were a problem for her.
62 Social and recreational activities, such as swimming, tenpin bowling and long driving caused a marked increase in the pain and discomfort in the plaintiff’s left shoulder and arm.
63 The plaintiff’s inability to work unrestricted full time had caused her significant ongoing worry, stress and anxiety. She then remained depressed and anxious and at times upset because she could not work full time because of her limitations. Her capacity for work had been markedly reduced.
64 In 2009, the plaintiff was referred back to Mr Evans and Mr Owen. They were not prepared or able to offer any further treatment for her left shoulder and the plaintiff understood that it was likely to remain in its current condition for the foreseeable future.
65 The plaintiff swore a further affidavit on 3 May 2013 deposing she continues to work with the defendant at its Morwell supermarket.
66 The plaintiff continues to work permanent part time for thirteen hours a week, earning $306 gross per week
67 The plaintiff works in the delicatessen on modified duties. She is no longer capable of working full time unrestricted duties because of the continuing chronic problems with her left shoulder, arm and neck. The plaintiff is no longer capable of doing many of the work tasks that she did before the incident and now many heavier work tasks and duties are beyond her. She has to pace herself doing more difficult tasks.
68 Heavier tasks, such as pushing loaded trolleys, lifting and carrying boxes of smallgoods and other products, and doing cleaning tasks are now very difficult.
69 Also duties and tasks requiring use of the left shoulder at or above shoulder level or head height, or requiring the plaintiff to stretch forward or use her hands in a forceful or repetitive movements are difficult and cause acute flare ups of her left shoulder and neck.
70 In examination in chief, the plaintiff explained she had a two kilogram weight limit, no overhead lifting and was not to push objects above fifteen kilograms. She works at the delicatessen counter at Morwell.[17]
[17]T8
71 The plaintiff’s current duties are really just serving, moving around smaller things. Other workers put meat and cheese on the shaver for her to cut and they also do the heavy cleaning and push trolleys.[18]
[18]T31
72 The plaintiff has trouble lifting things and usually gets other staff members to lift for her.
73 The plaintiff’s work affects her shoulder. Even though she has restrictions, she still has to move her shoulder around and it still plays up whilst she is at work, maybe four out of five days per week. The plaintiff is unable to do anything after work because of shoulder pain.
74 For a long time the plaintiff has never been free of pain in her left shoulder, arm and neck. She has pain across the top and into the front of her shoulder and arm which goes up her neck on the left side. There is tightness in her neck which at times is very painful and movements of her neck are also restricted, some days worse than others. From time to time, the plaintiff has pins and needles and cramping in her fingers in the left hand and she suffers headaches.
75 In examination in chief, the plaintiff described a lot of pain across the top of her left shoulder, across the front and into the side of her neck. It comes and goes. It just depends. She has pain most of the time, like, a really bad sort of achy, sharp pain. Movement causes the pain to increase to pain of a sharp, stabbing nature.[19]
[19]T9
76 The plaintiff also has neck pain right at the back of her neck and up the left side which comes and goes but the left shoulder pain is worse.[20]
[20]T9
77 In cross examination, the plaintiff confirmed she suffers constant left shoulder pain and pain in the interior chest wall on the left side and pain at the back of the shoulder and around the shoulder blade, which is constant. She also has constant pain at the back of her chest towards her spine and in the middle of her neck.
78 The plaintiff confirmed that she had pins and needles in her left hand and a little bit in her palm.[21] Also, at times, she got cramping in her fingers, which she believed was a consequence of her left shoulder injury.[22]
[21]T26
[22]T26
79 The plaintiff agreed she had also complained of right shoulder pain which started two or three years ago but was nowhere near as bad as her left shoulder pain. It was around the top of the shoulder and went into her arm a bit. She did not get pins and needles or cramping on the right.[23]
[23]T27
80 The plaintiff confirmed that she had constantly seven out of ten pain that sometimes increased to nine and could be eleven out of ten, depending on the day.[24] Movements such as putting her left arm straight out or across her chest aggravated the plaintiff’s shoulder pain.[25]
[24]T27
[25]T27
81 Many of the plaintiff’s simple day to day activities such as taking off her jumper or fixing her hair can be very difficult for her because of restricted movement in her neck, left shoulder and arm.
82 Many household tasks are now very difficult, especially heavier ones, such as vacuuming, scrubbing and cleaning the shower, bathroom and laundry. Both the plaintiff’s retired parents, particularly her mother, help her with heavier household tasks.[26]
[26]T10
83 The plaintiff avoids driving longer distances preferring to use the train when she goes to Melbourne. She needs to change her posture and position frequently to ease discomfort and pain in her neck and shoulder.
84 The plaintiff agreed she told Dr Sutcliffe she had a whiplash sort of injury to her neck from the incident. She thought this was the case and had not been advised by any doctor to this effect.[27]
[27]T24
85 The plaintiff also agreed she told Dr Sutcliffe her capacity to walk was limited because of shoulder and neck pain and her ability to stand was five to ten minutes.[28] She was only able to drive for fifteen to twenty minutes because of her shoulder pain.
[28]T28
Current treatment
86 The plaintiff sees Dr Edwards about every three months for review and prescriptions. The plaintiff continues physiotherapy with Mr Yates, once a week and possibly twice a week, depending on how bad her shoulder is[29] as the treatment helps her to stay at work.
[29]T10
87 Counselling with Ms Tabary-Collins once a fortnight, helps the plaintiff with her depression and anxiety. The plaintiff might feel good for a couple of days after a counselling session until her depression hits her again.
88 The plaintiff disagreed that she was in less pain after a session with Ms Tabary-Collins, but perhaps her pain was less severe. She was still in pain. She then disagreed she was in less pain after the seeing the psychologist.[30]
[30]T29
89 The plaintiff received benefit from counselling because it gave her someone other than her parents to talk to about her problems, what is going on and what people say about her at work.[31]
[31]T30
90 The plaintiff pays for Panadol Osteo and Panadeine Forte herself. She takes two to three Panadol Osteo tablets daily and up to five. If her condition is worse, she takes Panadeine Forte.
91 The plaintiff takes a half tablet of Avanza daily and uses Temazepam to help her sleep as needed. She also uses Nurofen, usually one to two a day, and when her symptoms are severe, such as following an acute flare up of her neck and left shoulder pain, or after a day at work, the plaintiff takes Panadeine Forte once or twice a week.
92 The plaintiff previously took Tramal but stopped because it made her vomit.[32]
[32]T24
93 The plaintiff believes her mood and behaviour have changed because of her injuries and emotional problems. At times she is very frustrated, becomes irritated, upset and aggressive towards her parents and friends, and she regrets those angry moments but struggles to control her emotions. At other times she is withdrawn and tearful.
94 For a long time, the plaintiff has been anxious and depressed and worried about her ongoing chronic problems with her neck, left shoulder and arm. Her ongoing pain and difficulties continue to really get her down and she is moody and withdrawn and does not enjoy life like she used to.
95 For a long time it has been very difficult for the plaintiff at work, with many co-workers having been unsympathetic towards her, and from time to time hostile. Comments are made which are hurtful and embarrassing which leave the plaintiff feeling upset and feeling unwelcome at work. She wants to work. She enjoys serving and meeting customers and wants to be involved at work but she struggles because of the effect of her injuries.
Work future
96 In cross examination, the plaintiff agreed she would like to get back to full time work.[33] She explained she could not cope when she had tried, lasting only a week. It has been a good five years that she has worked thirteen hours.
[33]T30
97 When it was suggested to the plaintiff that she would not know how she would cope, if she did not try, the plaintiff agreed that was probably the case but she had trouble with her shoulder. It was not as if she had been sitting around at home since the incident, not doing anything. She had tried to get back to her full time job but could not do so.[34]
[34]T32
98 The plaintiff had not given up. At the moment she honestly did not think she would be able to go back to her full time job as even thirteen hours a week was enough.[35] Her work at present is too heavy for her because she cannot do a lot of heavy lifting.
[35]T 32
99 The plaintiff has not looked for other work.[36] She has a resume but has not sent it to anyone. She does not look in the paper. She did not think she had to look for another job when she is already employed.[37] Who was going to employ her when she could only work thirteen hours at Safeway? Who would want to take on someone with a bad shoulder?
[36]T 32
[37]T 33
100 The plaintiff did see the defendant years ago about retraining. That person engaged by the defendant told the plaintiff she was not going to be retained because if she was retrained and got a better job, fellow workers would be saying they were injured so they would get a better job.[38]
[38]T 34
101 The plaintiff was not just waiting for the defendant to do something. She “was not being nasty,” but she would not be in that position if she had not been injured.[39]
[39]T 34
102 The plaintiff agreed she was getting money from the defendant and DSS. She asked why she had not been retrained and why an OH&S person had not come and helped her. She had had none of it over the years.[40]
[40]T 35
103 It was not correct but the plaintiff would not disagree that she was waiting for the defendant to retrain her. She had a job.[41] In those circumstances, she could not see why she was being asked about retraining.[42]
[41]T35
[42]T 34
104 The plaintiff is not happy with the current arrangement but it was all she is capable of doing at the moment.[43]
[43]T35
The Plaintiff’s earnings
Financial Year Earnings 1999 $20,243 2000 $20,196 2001 $27,528 2002 $33,766 2004 $28,883 2005 $20,907 2006 $16,783 2007 $16,521 2009 $16,381 2010 $14,617 2011 $16,894 2012 $16,757 2011 $16,894 2012 $16,757
Medical Evidence
105 The plaintiff’s general practitioner, Dr Edwards, has provided reports dated 20 June 2006, 9 February 2012 and most recently, 1 May 2013.
106 Dr Edwards confirmed the plaintiff had attended on multiple occasions since injuring her shoulder on the said date when she first reported having slipped and fallen, landing on her left shoulder.
107 In his first report, Dr Edwards detailed a referral to Dr Jensen for soft tissue treatment and also referrals to Mr Paxinos and Mr Evans, orthopaedic surgeons and Ms Tabary-Collins, psychologist.
108 Dr Edwards then diagnosed a left shoulder injury without specific diagnosis, consistent with the stated cause.
109 Dr Edwards thought the plaintiff continued to retain capacity for work at her current job, albeit in a modified manner with lifting restrictions. He then thought the prognosis was difficult to assess and he considered it was hard to conceive of any other assistance that would be of benefit given the plaintiff’s extensive treatment.
110 When Dr Edwards reported in February 2010, he diagnosed left shoulder pain with radiation to the neck and upper back, and noted that despite considerable investigations the plaintiff’s condition had never been fully explained. He then thought her prognosis seemed quite gloomy and noted she then clearly remained significantly distressed by her condition but that nobody appeared to be able to offer any significant assistance and it must therefore be presumed she would remain in pain for the foreseeable future.
111 When Dr Edwards reported in May 2013, his diagnosis remained unchanged and the plaintiff had ongoing left shoulder pain. He did not anticipate any significant change in her situation in the foreseeable future. He noted her condition had stabilised and she remained troubled by left shoulder pain up to a level of seven out of ten and some movements remain restricted, particularly in the elevation of the left arm.
112 Dr Edwards thought further surgery was unlikely and, apart from simple analgesia, no other active treatment was planned. He thought it was difficult to predict the long term deterioration since the plaintiff’s initial diagnosis was never fully established.
113 Dr Edwards considered the plaintiff did not have the capacity to return to any more work hours and thought she would be able to do her current level for the foreseeable future.
114 Dr Edwards noted there was no doubt the plaintiff continued to be quite distressed by her condition and she exhibited significant signs of depression and anxiety. She stated her pain was often significant at seven out of ten. She often felt very nervy and depressed and remained under Ms Tabary- Collins’ care.
115 The plaintiff advised Dr Edwards she rarely went out preferring to stay at home and she often felt too miserable to consider an external social life away from her house. He thought the plaintiff’s left shoulder injury had definitely changed her social lifestyle as she used to enjoy going out fairly regularly.
116 Dr Edwards noted the plaintiff continued to attend for three monthly WorkCover certificates, but apart from receiving the appropriate administration and paperwork, placed little demand upon medical services.
117 The plaintiff has had physiotherapy at Gippsland Physiotherapy Group from October 2002.
118 Mr Allan Yates, physiotherapist from that practice reported in March 2013. He diagnosed a small labral tear intra articular inflammation, subacromial inflammation and anterior capsule laxity in the left shoulder. He noted the plaintiff had only returned to part time work and had limited ability with left shoulder movement.
119 Mr Yates noted the plaintiff had a ten year history of pain which affected her lifestyle, social activities and her mental health. She relied on family and friends for assistance in her activities of daily living and she suffered from anxiety and depression as a result of her injuries and reduced ability to work. He noted her social life was restricted to no physical activities and that had impacted on her health.
120 The plaintiff was first seen by Mr Owen, orthopaedic surgeon, in December 2002. She then complained of pain around the left clavicle more than anywhere else. He noted there was very much a diffuse generalised shoulder girdle pain of a musculoskeletal type. He reported he knew the plaintiff was a very uptight anxious girl hyperventilating with a tremor. He made her realise her anxiety and tension certainly contributed. He noted the plaintiff did not have the personal resources to be able to deal with the stress of her employer thinking she had too much time off and was not able to do part time work.
121 Clinical examination showed a full range of shoulder movement with only some minor limitations in extension and internal rotation. Mr Owen could not locate the pain specifically to the rotator cuff AC joint or glenohumeral joint. He felt his prime role at that time was to reassure the plaintiff she would get better but she should take a few minutes out to do some stretches and possibly put on a heat bag.
122 Mr Owen next saw the plaintiff in October 2009 with seven years history of pain. He again found her to be a very difficult historian. He noted she clinically exhibited quite marked limited external rotation and extension of the joint, quite distinctly worse than when he had seen her in 2002 and that since that time she had undergone a number of procedures.
123 Mr Owen saw the plaintiff a month later when she reported an injection did not give her any help whatsoever. He thought there seemed to be a lot of other issues which he believed were to be more of a social matter than anything else and that those needed to be addressed. He did not think he had anything further to offer the plaintiff other than the advice of continued conservative care.
124 Mr Owen wrote to Dr Edwards on 30 October 2009 thanking him for his referral of the plaintiff. He advised he had persuaded the plaintiff to have another injection to see what benefit that would bring. He did not anticipate a brilliant outcome but he agreed that call should be taken and he concurred with Mr Evans’ view that further surgery then was clearly not going to be of benefit for the plaintiff.
125 Mr Owen wrote to Dr Edwards in November 2009. The plaintiff told Mr Owen the injection had given her no benefit whatsoever. Mr Owen felt he had reached a point, where the plaintiff seven years down the line from what was an innocuous shoulder injury and not responding to multiple treatments, was not going to improve in his hands at least. He thought there were a lot of other issues that he could see having more of a psycho social basis than anything else, and he readily admitted that he was not an expert in those matters. He certainly did not see further surgery would be of use, noting that the plaintiff had had ongoing physiotherapy of one sort or another for seven years without benefit.
126 Mr Gardiner wrote to Dr Kiriakova on 21 February 2003, thanking her for the referral of the plaintiff, whom she noted was still having a lot of trouble following the incident. He gathered all the investigations were normal but the plaintiff was still in a lot of pain and he would organise an MRI of her shoulder.
127 Mr Paxinos thanked Dr Edwards for referring the plaintiff in August 2003. He advised he thought there was probably pain stemming from the left acromioclavicular joint with possible chronic pain syndrome and he advised he was going to seek approval for a cortisone injection.
128 Mr Paxinos advised Dr Edwards on 30 October 2003 that he had reviewed the plaintiff and unfortunately the injection did not make any difference to her left clavicular and shoulder pain. He noted, because of the unclear nature of her problem, he had discussed the options with the plaintiff and she was keen to proceed with arthroscopy in an attempt to inspect the glenohumeral joint and subacromial areas for any mechanical abnormality. If there was no significant mechanical abnormality found, he advised he would recommend referral to a chronic pain physician.
129 Mr Paxinos advised Dr Edwards in January 2004 that the plaintiff had surgery involving examination under anaesthetic where minor anterior laxity in the left shoulder was detected. Arthroscopy revealed minor synovitis and some degenerative changes in the labrum which was debrided arthroscopically. He noted subacromial bursoscopy revealed no signs of impingement, although inflammation was confirmed in the area and he debrided the inflamed bursa in the subacromial area.
130 Mr Paxinos wrote to Dr Edwards in February 2004 noting the minor anterior laxity detected during arthroscopy with sign of anterior labral stress being present.
131 Mr Paxinos advised that on review that day the plaintiff had regained an excellent range of motion, although demonstrating signs of anterior apprehension and relocation and he had therefore asked her to persist with physiotherapy and deemed her unfit for work for a further month.
132 In March 2004, Mr Paxinos advised the plaintiff’s general practitioner that he had reviewed the plaintiff. The plaintiff complained of a recent increase in left shoulder pain due to physical duties at work. Mr Paxinos advised that he thought the plaintiff may be developing a degree of chronic pain syndrome and he referred her to Dr Blombery. He also asked the plaintiff to continue with work restrictions.
133 Mr Paxinos reviewed the plaintiff in May 2004 noting that she had had no relief of her left shoulder pain following Dr Blombery’s treatment. Mr Paxinos asked her to continue physiotherapy to stabilise and strengthen her left shoulder. He intended to review her in three months and if there was no improvement, consider surgical exploration of the subcoracoid area and an anterior capsular plication.
134 Mr Paxinos wrote to Dr Kiriakova in September 2004 noting an up to date MRI revealed a three millimetre partial thickness tear of the supraspinatus tendon which he did not think required surgical treatment, although he believed it gave up a cause for the plaintiff’s pain. He advised lifting restrictions and discharged the plaintiff from his care.
135 Dr Blombery wrote to Mr Paxinos in April 2004 thanking him for referring the plaintiff. Dr Blombery noted on examination the plaintiff was quite tense with a slight resting tremor. She was very tender on pressure over the left deltoid muscle and also over and under the left clavicle. There was almost a full range of left shoulder movement, although the extremes of abduction and external rotation were a little limited by pain. Reflexes were brisk and symmetrical and power of handgrip on the left was seven kilograms versus eighteen on the right.
136 Dr Blombery advised that the plaintiff had features of a non specific pain syndrome in the left arm. He noted there was little in the way of autonomic disturbance and he did not feel the plaintiff really had a Complex Regional Pain Syndrome Type 1. He advised he was giving her Prednisolone and Neurontin. He noted clearly the plaintiff’s problem was that of inappropriate pain nerve messaging and, hopefully, with those interventions, that could be changed.
137 Dr Blombery wrote to Mr Paxinos in April 2004 advising the plaintiff had only had a minimal response to Prednisolone and Neurontin, with quite marked side effects.
138 Dr Mark Cunningham, psychiatrist, examined the plaintiff on behalf of the defendant in May 2005.
139 Dr Cunningham thought the plaintiff suffered a psychological condition related to the injury sustained. He considered her psychological condition may not be stabilised and was unlikely to be permanent in the absence of pain and insomnia.
140 In terms of self assessment, the plaintiff said she felt frustrated and frequently became very emotional when contemplating her disability and also because of the virtually constant pain and difficulty sleeping. He noted she was very much motivated to return to full time duties but that did not seem possible at present. He believed the appropriate diagnosis was of an adjustment disorder with depression and anxiety causing ongoing symptoms. In the event of continuing anxiety, panic attacks and difficult sleeping, he thought anti depressants might be considered if the plaintiff could accept the additional medication.
141 Mr Evans wrote to Dr Kiriakova in January 2006 thanking her for the referral. He noted that the plaintiff was clearly a diagnostic dilemma. He advised her that he was not sure whether he could offer an answer to the cause of her pain, or any solution. He noted Mr Paxinos’s working diagnosis was of instability and sub coracoid impingement as the ongoing cause of pain, and he thought that was certainly a possibility. He considered it was impossible to assess this clinically due to the plaintiff’s pain and lack of movement. For the same reasons he advised it would be impossible to exclude a diagnosis of frozen shoulder in the plaintiff’s case and he thought a hydro dilation injection would be beneficial.
142 Mr Evans wrote to Dr Edwards in January 2006. He advised he was unsure of the aetiology of the plaintiff’s ongoing pain; however he suggested she may benefit from seeing a musculoskeletal physician, given that her pain seemed to be focussed around her coracoid process and anterior chest wall.
143 Mr Evans wrote to Dr Edwards in October 2009. He noted that the plaintiff had a recent MRI that confirmed rotator cuff tendinopathy. He advised structurally he did not think anything could be improved with surgery. He thought physiotherapy was going to be the plaintiff’s mainstay and explained that to her, having not seen her for the previous three years.
144 Mr Evans reported to the plaintiff’s solicitors in December 2009, noting he first consulted with the plaintiff in January 2006. There was then a three and a half year hiatus until she went back to see him in October 2009.
145 Mr Evans thought on the last examination that the plaintiff’s shoulder condition had remained stable for about seven years despite multiple treatments including surgery. He was unsure as to aetiology of her ongoing shoulder pain, but noted certainly years of shoulder pain was likely to lead to poor function and secondary weakness and tendinopathy of the rotator cuff. He thought that explained the changes demonstrated in the recent MRI but did not explain the underlying cause for the plaintiff’s pain. He was unable to provide a diagnosis as to the cause of her underlying shoulder pain. He thought the prognosis was poor given the plaintiff’s condition had carried on for seven years with that improvement.
146 Mr Barwood, shoulder and elbow orthopaedic surgeon, wrote to Dr Edwards in July 2008 thanking him for referring the plaintiff for a third opinion.
147 In summary, Mr Barwood advised that he thought it appeared the plaintiff’s restriction of movement was related to a chronic pain syndrome and that her only option then was to be again reviewed by a chronic pain management specialist. He did not believe she had a capsulitis and if she could improve her pain, then he suspected her forward elevation would improve as her pain was treated.
148 Elizabeth Tabary-Collins, psychologist, reported in 2013 having first assessed the plaintiff in June 2006 as an aid to the plaintiff’s pain management and rehabilitation after a work related injury at the request of Dr Edwards.
149 Ms Tabary-Collins concluded that the plaintiff presented with extreme anxiety, very severe depression and chronic pain as a result of the incident injuries. She thought the plaintiff met the criteria for anxiety disorder due to medical condition.
Investigations
150 An MRI left shoulder arthrogram was organised by Mr Gardiner on 3 March 2003. It was reported it was an essentially normal examination. There may be minor fluid in the subacromial subdeltoid bursae. There was no rotator cuff disruption and no signs of anterior instability.
151 There was an injection of the left AC joint under ultrasound carried out on 29 September 2003.
152 Mr Paxinos organised an MRI of the plaintiff’s left shoulder in September 2004. It was reported it was a small thickness tear of the insertional fibres of the supraspinatus.
153 There was a left shoulder hydrodilatation procedure carried out on 13 January 2006.
154 An x-ray of the cervical spine was carried out on 6 December 2006. It was reported there was very minor anterior osteophyte formation at C5-6 and C6-7. The disc spaces were well preserved, as was normal spinal alignment, and there was no vertebral collapse or destruction demonstrated.
155 Dr Thabarash organised a CT of the cervical spine in June 2008. It was reported there was no disc canal or foraminal pathology seen.
156 There was an MRI of the left shoulder organised by Dr Edwards in August 2009. It was reported there was prominent rotator cuff tendinopathy with a probable small intrasubstance healing tear in the supraspinatus.
Medico-legal evidence
157 The plaintiff was examined by occupational physician, Dr Helen Sutcliffe, in February 2013.
158 The plaintiff was then working thirteen hours a week, previously having worked a thirty eight hour week.
159 The plaintiff complained of constant left shoulder pain, pain on the anterior chest wall, pain in the posterior shoulder to the scapula and the posterior wall to the spine. She also had neck pain on the left side and intermittent headaches. She had pins and needles in the fingers of her left hand and also a cramping in the fingers.
160 On examination, the plaintiff’s left shoulder was decreased in height and there was altered contour with decreased muscle bulk. There was also decreased muscle bulk in the left upper limb. Neck movement was reduced and painful and there was muscle spasm observed on the left.
161 There was a reduction in handgrip on the left of two kilograms of force, and twenty kilograms of force on the right. Power generally was decreased in movement of the left shoulder and there was some minor decrease in extension of the left elbow.
162 Reflexes were intact. Sensation to light touch was unaffected but there was considerable reduction in left arm and anterior and posterior chest wall sensation to cold compared to the right. There was altered sensation to vibration in the left in a similar distribution.
163 Dr Sutcliffe noted the September 2004 left shoulder MRI demonstrated a small partial thickness tear of the fibres of the supraspinatus. The August 2009 MRI showed prominent rotator cuff tendinopathy with a probable small intra substance, healing tear in the supraspinatus.
164 From the information provided, Dr Sutcliffe believed the plaintiff sustained direct injury to her left shoulder and also her neck as a result of the heavy fall in the course of employment.
165 Dr Sutcliffe considered the plaintiff sustained left shoulder rotator cuff injury with involvement of the tendons of the supraspinatus, biceps and other tendons of the rotator cuff. She noted, in addition, there appeared to be impingement and that the 2009 MRI confirmed the changes present in the left shoulder.
166 Dr Sutcliffe considered the plaintiff now presented with symptoms consistent with a combination of nociceptive and neuropathic type pain, taking into account her long history of pain, limitation of movement and the findings on examination.
167 Dr Sutcliffe thought the plaintiff would continue with persisting pain into the future and that she would require treatment in the form of medication and hydrotherapy to help her manage her pain. She also thought the plaintiff should be referred to a pain management physician for assistance with interventional therapies.
168 Dr Sutcliffe noted there had certainly been an increased area of pain to the anterior chest wall, posterior chest wall and left side of the torso.
169 Dr Sutcliffe thought the plaintiff had no capacity for the full range of duties of her pre injury occupation and no capacity to undertake heavy lifting, stretching or cleaning activities. Dr Sutcliffe believed the plaintiff could continue working thirteen hours a week with current restrictions and it was likely that was the only job she would be able to persist with.
170 Dr Sutcliffe thought the plaintiff’s limitations would prohibit her employment in any general range of delicatessen work and she permanently had no capacity for previous occupations of cook, chef or cleaner.
171 Dr Sutcliffe believed the plaintiff had no capacity to work as a bus driver or any capacity to work as a pathology collector, because she could not use her left arm in any forceful manner, as required in bus driving, nor could she steady her arm on the left, as required in pathology collection.
172 Dr Sutcliffe noted the plaintiff had very significant reduced power in the left hand grip and that would give her a problem with work.
173 Dr Sutcliffe concluded the plaintiff had no capacity for suitable duties or alternative work and that would continue permanently, but she could do modified duties in protected employment as currently provided.
174 In addition, Dr Sutcliffe noted the plaintiff had sustained a very substantial adverse impact on her capacity for activities of daily living and self care, social and leisure activities, and that would also be permanent.
175 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in February 2013.
176 The plaintiff reported that literally nothing had changed since her injury, with the plaintiff reporting constant neck and left shoulder pain.
177 On physical examination, there was generalised tenderness described around the left shoulder joint with some restriction of movement. There did not appear to be any significant pain described on active flexion, abduction and external rotation against resistance. There was noted to be some global weakness of her left arm muscles. Sensation and reflexes were normal.
178 Mr O’Brien noted the 2004 MRI of the left shoulder, the 2008 CT of the neck and the 2009 MRI of the left shoulder.
179 Mr O’Brien thought the fall in the incident would have precipitated some neck and left shoulder pain.
180 Mr O’Brien reported physical examination demonstrated some definite restriction of flexion and abduction of the shoulder both sides which would be in keeping with the 2009 MRI, which showed some rotator cuff tendinopathy. He noted signs certainly did not demonstrate any evidence of shoulder capsulitis.
181 As there was only mild restriction of rotation of the cervical spine, Mr O’Brien thought there was certainly no suggestion of any major cervical pathology and the 2008 cervical CT scan showed no specific abnormality.
182 With such an extremely long history and described lack of response to treatment, Mr O’Brien thought it difficult to be specific in relation to the exact aetiology of the plaintiff’s shoulder pain, noting that view was consistent with the treating doctors’ reports. He therefore concluded that the plaintiff now presented with chronic non specific left shoulder and neck pain, to which employment remained a significant contributing factor.
183 Mr O’Brien thought the clinical course was obviously stable and he considered it likely physiotherapy and use of analgesics would be required for ongoing pain management. He thought there was a poor prognosis.
184 Mr O’Brien reported he would be quite confident the nature of the plaintiff’s chronic pain would certainly result in her not returning to her previous occupation or, indeed, any other full time employment. He noted she now only just copes with very modified duties on limited hours. In fact, he would suggest if the plaintiff were to cease her current employment it would be very unlikely she would find appropriate, suitable duties, given the chronic nature of her pain. Further, he noted the plaintiff indicated she was in receipt of a disability pension.
185 Indeed Mr O’Brien would in fact consider the plaintiff was permanently moderately limited in her general domestic, social and recreational activities.
186 Dr Nigel Strauss examined the plaintiff in April 2013.
187 On mental state examination, the plaintiff was quite anxious, depressed and preoccupied with her pain and restriction and expressed concerns about her future and her situation. Her thinking was negative. There was no evidence of any psychosis, delusions or thought disorder. He noted the plaintiff presented as a rather unsophisticated woman with possible borderline intelligence.
188 Dr Strauss thought the plaintiff suffered a genuine injury noting surgery thereafter and a good deal of conservative treatment. He commented it was not for him to definitely decide whether or not psychological factors were contributing to the perpetuation of the plaintiff’s pain but he thought it possible that the plaintiff had a psychologically based pain disorder associated with the medical condition and psychological factors. He noted the plaintiff struck him as being an unsophisticated individual with limited insight into her circumstances.
189 Dr Strauss suspected that at times the plaintiff is intellectually challenged and believed that she had not been well equipped to cope with her injury and that was why there was a distinct possibility that psychological factors, as well as organic factors, were contributing to her perpetuation of pain.
190 Dr Strauss noted there was nothing to suggest the plaintiff was deliberately or consciously over exaggerating her problems. She struck him as being a genuine person who was doing her best to cope. He noted that she kept working to her credit, even though she could only do part time work. He therefore believed there was a significant chance she was not only suffering from an organic condition affecting her shoulder, but also psychologically based pain on an unconscious level.
191 Dr Strauss noted the plaintiff was quite anxious and depressed and there were psychological factors possibly perpetuating her pain and which may be at the basis of her psychologically based pain disorder. Therefore, from a psychiatric point of view, he could accept the plaintiff suffered from a chronic adjustment disorder with mixed anxiety and depressed mood and a possible pain disorder associated with a medical condition and psychological factors.
192 Dr Strauss believed the plaintiff’s partial incapacity for employment was both psychiatrically and organically based.
193 Dr Strauss thought the plaintiff was capable only of part time light duties and she had a permanent psychiatric injury related to the incident. He thought the plaintiff should see a psychologist weekly and should be taking anti depressants.
Claim documents
194 The plaintiff completed a claim form on 10 September 2002 in which she set out that on the said date, she slipped on the wet floor, serving customers, hurting her left shoulder.
195 The plaintiff submitted a claim for impairment benefits on 8 February 2005 for injury to her left shoulder and neck and anxiety and depression.
The Defendant’s Evidence
196 The employer claim report form was signed on 14 October 2002. It set out the plaintiff was working 38 hours a week and earning $14.85 per hour. Pre injury average earnings were $564. It was noted the plaintiff suffered a soft tissue injury to her shoulder.
Medical evidence
197 Mr Gardiner wrote to Dr Jensen on 13 June 2003 thanking him for seeing the plaintiff.
198 Mr Gardiner advised that examination revealed a restriction in range of movement of the left shoulder which was fairly global and caused pain in the area described. He noted the plaintiff was quite tender over the general area of the pain described and imaging so far, including plain films, ultrasound and a bone scan, as well as an MRI failed to show specific pathology.
199 Mr Gardiner advised that the plaintiff returned on 13 June 2003 with ongoing poorly localised pain in the left side of her neck and over the intra clavicular fossa and upper anterior chest region. Examination again revealed a reduction in shoulder movement causing pain and the plaintiff had minimal tenderness over the acromion and rotator cuff and restriction of shoulder movement by pain.
200 Mr Gardiner advised he did not think there was anything specific for him to do surgically but he would be grateful for Dr Jensen’s assessment and treatment by his musculoskeletal techniques so that they could help the plaintiff back into a useful role into the workforce.
201 Mr Evans wrote to the plaintiff’s solicitors on 5 June 2006, noting he had seen her on 3 and 30 January 2006.
202 On the first consultation, Mr Evans noted examination was difficult due to pain. The plaintiff could elevate to 90 degrees but that was painful. Improving her range of motion passively was impossible due to pain. The findings were similar in terms of both internal and external rotation and testing of her rotator cuff. The plaintiff’s local tenderness was around the anterior aspect of her shoulder joint and coracoid process. Laxity testing was impossible secondary to pain.
203 The plaintiff brought the 2004 MRI which described a small partial thickness defect on the articular side of the supraspinatus.
204 At the time of the first consultation, Mr Evans was unclear as to the aetiology of the plaintiff’s ongoing shoulder pain. Given the difficulty with obtaining range of motion, he felt frozen shoulder may be attributed to her pain. Thus, he arranged for the plaintiff to have a hydrodilatation injection and reviewed her two weeks subsequently. That procedure was uncomplicated but gave the plaintiff no relief of her symptoms.
205 Mr Evans explained to the plaintiff he did not feel her clinical picture could be adequately explained by MRI findings and he could identify no other cause for her pain. In light of that, he suggested consultation with a musculoskeletal physician may be beneficial to explore the possibility of her shoulder girdle pain being related to the chest wall.
206 Given the relationship between the onset of shoulder symptoms and the incident, Mr Evans did not think it unreasonable to draw the conclusion that the plaintiff’s pain was related to the incident, but having said that, he could not identify a clear cause for her ongoing pain.
207 Mr Evans advised the plaintiff’s condition appeared to be stable. He noted, given the significant and ongoing pain the plaintiff was experiencing, and the lack of any real relief afforded by any intervention to date, he anticipated her work capacity with her left shoulder was likely to be limited into the foreseeable future and it was likely to limit her future capacity for work, particularly involving heavy, repetitive, overuse of her left arm
Medico-legal evidence
208 Mr Hugh Weaver, orthopaedic surgeon, reported in June 2005. He noted he was obviously struck by the proposition that whilst the plaintiff might well have been demonstrating some evidence of problems affecting separately the left shoulder region and possibly the cervical regions as well, there was obviously fairly limited support for those propositions.
209 At that stage, Mr Weaver indicated that the whole matter of an alleged neck injury was, to some extent, speculative.
210 Mr Weaver reported that it would be necessary for some pathology to be demonstrated emanating from the cervical region, and that required appropriate investigation. He thought it conceivable that the plaintiff was suffering from some neck pathology separate and distinct from the left shoulder problem, but that required investigation.
211 Mr Weaver thought there appeared to be fairly limited evidence to suggest the plaintiff was suffering from a lot of organic pathology affecting either the neck or left shoulder girdle, and that her problems might therefore be referable, in large part, just to a psychogenically mediated chronic pain syndrome of some kind. If the latter speculation was correct, he suspected it would probably be feasible to argue the plaintiff’s condition had stabilised and that there was no realistic expectation her situation was going to improve dramatically within the short to medium term, at least.
212 Mr Weaver noted that all his responses were clearly somewhat speculative and that he needed to find out what was going on with the plaintiff’s cervical spine by investigation.
213 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in August 2007.
214 On examination of the left shoulder, there was no wasting of the shoulder girdle musculature. Active abduction and forward flexion were to ninety degrees. External rotation was to forty degrees and internal rotation, adduction and extension were to twenty degrees. Attempts to passively move the shoulder beyond the active range of motion were met with active muscle resistance and complaints of pain.
215 Mr Dooley believed the plaintiff sustained a soft tissue injury to the left shoulder and the cervical spine in the incident.
216 Mr Dooley considered that there was a soft tissue injury to the cervical spine involving musculoligamentous damage and probably some aggravation of early degenerative disc disease. He thought that injury would account for the plaintiff’s ongoing pain. He believed, following her injury and the pain the plaintiff experienced, the plaintiff had developed a chronic pain syndrome.
217 Mr Dooley considered the constancy and intensity of the plaintiff’s ongoing pain were greater than one would expect to see for the injuries sustained.
218 Mr Dooley thought the plaintiff presented as a sensible and genuine historian and he did not believe she was deliberately exaggerating her symptoms. He noted she had been a hard worker all her working life and she had returned to light duties, working as many hours as she was able, and hoped to return to full time work.
219 Mr Dooley thought there was no specific treatment that would predictably help the plaintiff’s cervical spine injury. He thought it reasonable for her to take Panadol. He did not believe ongoing formal, conservative measures would improve the situation and he thought there was no indication for surgery.
220 In Mr Dooley’s view, clinically there was no evidence of objective neurological deficit affecting the upper limbs. There was restriction of shoulder motion in relation to the left shoulder injury, with restriction of active motion greater than he expected to see for the injury sustained.
221 Mr Dooley believed the plaintiff would continue to note intermittent cervical spine pain. He believed the constancy and intensity of her pain would improve with time and he would not expect her current condition to deteriorate. He believed her intention to return to full time work was reasonable and appropriate.
222 Mr Anthony Buzzard examined the plaintiff in July 2012.
223 On examination, both arms were equally and normally developed by measurement. There was limitation of left shoulder movement.
224 Accepting the history, Mr Buzzard thought it reasonable to accept the plaintiff did suffer from an injury to the left shoulder which appeared to have been a rotator cuff tear culminating in surgery in 2004. He noted that surgery had not been completely successful in that the plaintiff continued to have symptoms of pain and limitation in the movement of her left shoulder.
225 Mr Buzzard noted the plaintiff was claiming to be suffering, in addition, a whiplash injury to her neck, which he thought it was unlikely she suffered, given the mechanism of the injury. He noted the plaintiff had a major problem with a higher BMI.
226 Mr Buzzard considered evidence based medicine did not support ongoing physiotherapy, and self management was better.
227 As far as employment was concerned, Mr Buzzard thought it reasonable to accept the plaintiff should not be carrying out work with a range of motion of the left shoulder greater than that which she demonstrated on examination. He thought there should be a lifting limit of five kilograms. He did not see any justification from a purely physical perspective in the plaintiff working only thirteen hours a week, as against full time. He diagnosed incompletely successful left rotator cuff surgery with a stable condition related to the incident.
228 Mr Buzzard did not think there were any non work related factors associated with the left shoulder problem. He thought the plaintiff probably had some degenerative disease in her neck which was not work related.
229 Mr Buzzard considered the plaintiff had a current work capacity with limited hours and that she could not work in a job requiring a range of movement greater than shown on examination and there should be the lifting restriction. He recommended continuing medication for the left shoulder and a regular, self administered exercise program.
230 Dr Shan, consultant psychiatrist, examined the plaintiff in July 2012.
231 On mental state examination, the plaintiff seemed depressed and anxious. She described her situation in an anxious fashion, becoming tearful several times about her belief that people at work were insensitive to her situation. The plaintiff believed the injury had badly affected her lifestyle and work capacity and sometimes she felt life was a struggle. Perception was normal and there was an impression that her belief of disability and restriction was disproportionate.
232 Dr Shan noted the plaintiff’s background was suggestive of pre existing anxious personality traits but she denied any overt psychiatric history, including in relation to any work injuries in the past. He noted that there was little information about the plaintiff’s past medical history in the enclosures.
233 Dr Shan reported that on examination the plaintiff complained of feeling anxious as well as depressed, and it seemed evident that at the workplace, she was chronically hypersensitive and also lacked judgment in respect of the impact of her restrictions on the workload of others around her.
234 Dr Shan noted the plaintiff’s perception of the workplace seemed to be highly subjective. There was no information about harassment or bullying. He reported that the plaintiff appeared to have been complaining about feeling unsupported at the workplace for some five years. Dr Shan noted nevertheless it appeared the defendant had been able to keep the plaintiff on for as long as she was capable of doing the work offered.
235 Dr Shan diagnosed an adjustment disorder with mixed anxiety and depressed mood, which he thought was likely to be chronic, and had arisen as a result of the injury. In his view, the plaintiff’s anxious personality also contributed to her condition and there was no prior condition described.
236 Dr Shan concluded the condition of adjustment disorder was mild and difficult to distinguish from normal emotions for the plaintiff’s personality. He noted the plaintiff did not describe herself as being incapable of work due to psychological factors and he thought that her condition did not contribute to capacity for employment.
237 If the defendant was no longer able to offer the plaintiff the duties she currently performed, Dr Shan thought it more likely that she would apply for a Centrelink disability pension. He would not recommend any further treatment.
Overview
238 I am satisfied the plaintiff suffered a compensable injury to her left shoulder, the diagnosis of which is somewhat in dispute with the injury having been described as soft tissue, a frozen shoulder, a tear of the left rotator cuff and non specific left shoulder pain.
239 I am mindful that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[44] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[44][2006] VSCA 171
240 In the present case, it was submitted by counsel for the defendant that the plaintiff could not establish that organically based pain and suffering consequences satisfy the statutory test of seriousness.
241 The starting point was said to be the question of disentanglement pursuant to s134AB(38)(h).[45]
[45]T41
242 Pursuant to that section, psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
243 Accordingly, I am required to disregard psychological factors in considering the application under sub-paragraph (a).
244 I am also, before undertaking the analysis of the seriousness of the lumbar spine injury, required to identify the consequences that are organically based in origin.
245 As the Court of Appeal said in Barwon Spinners & Ors v Podolak:[46]
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, … requires that any psychological or psychiatric overlay be stripped aside. …”
[46](supra), at page 664, paragraph 117
246 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
247 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis,[47] that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis…. Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. …“
[47](2007) 15 VR 649, at 652-3
248 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd,[48] where His Honour said:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
[48][2008] VSCA 167, at p.19
249 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd.[49] In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”
[49][2007] VSCA 142, at p.19-20
250 I accept, having considered these authorities, as Judge Morrow said in Gorgiev v Healthscope Ltd:[50]
“…if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”
[50][2008] VCC 1443, at paragraph 50
251 It was submitted on the defendant’s behalf that overwhelmingly the treating surgeons speak, by and large, with one voice that there is very little in the way of organic pathology and the plaintiff has a pain syndrome, which is responsible for a large measure of her complaints of pain and disability.
252 Counsel for the defendant gave the following overview of the medical evidence in support of this submission.
253 On initial examination, the first treating specialist Mr Owen described a diffuse generalised shoulder girdle pain of a musculoskeletal type. He noted the plaintiff was anxious, uptight and hyperventilating with a tremor. It was submitted that, plainly, the plaintiff’s symptoms were then complicated by a marked psychiatric reaction.
254 Mr Owen noted, on examination in trying to relax the plaintiff and make her realise her anxiety and tension certainly contributed, he got the impression that she did not have the personal resources to be able to handle this kind of situation.
255 It was submitted that was, plainly, a psychiatric reaction, particularly when Mr Owen noted his prime role was then to reassure the plaintiff that she would get better, take a few minutes to do some stretches, possibly use a heat pack on her shoulder, and a good place to recover would be in the workplace.[51]
[51]T42
256 In his report, Mr Gardiner, the next treating surgeon, mentioned generalised or poorly localised pain which, it was submitted was the hallmark of a pain syndrome rather than pain of an organic nature, which would ordinarily be localised. Mr Gardiner thought there was nothing to do surgically, hence the referral to Dr Jensen, musculoskeletal physician.
257 Whilst the plaintiff may have undergone a number of procedures, Mr Paxinos only undertook an arthroscope which is not major surgery.[52] He concluded the plaintiff suffered from a pain syndrome as he wrote to Dr Kiriakova in 2004.
[52]T43
258 Dr Blombery concluded the condition was a non specific pain syndrome in the left arm and there was little in the way of an autonomic disturbance and he did not really feel the plaintiff had Chronic Regional Pain Syndrome. It was submitted he was referring to a psychogenic pain syndrome.[53]
[53]T43
259 The fact that there had not been any help from interventions was indicative of a psychogenic cause of the plaintiff’s condition.[54] The plaintiff had confirmed if anything, she had got worse, and that tended to suggest that her problems were largely inorganic.[55]
[54]T43
[55]T43
260 Next treater in time, Mr Evans noted he was unclear of the aetiology of the plaintiff’s ongoing shoulder pain. The hydrodilatation was uncomplicated but gave no relief – a situation underscoring the defendant’s submission.[56]
[56]T43
261 Mr Barwood, the next surgeon involved in the plaintiff’s treatment, noted specifically that the restriction of movement was related to a chronic pain syndrome, and the only treatment option was pain management.
262 It was submitted that Mr Owen was of the view that organically there was little wrong with the plaintiff’s left shoulder and her problems were largely inorganic or psychogenic in nature.[57]
[57]T44
263 When Mr Owen re examined the plaintiff in November 2009, he noted the injection involved resulted in no improvement and that there seemed to be a lot of other issues that were more of a social nature than anything else, and that those needed to be addressed.[58]
[58]T44
264 In a letter to Dr Edwards, Mr Owen described the plaintiff’s injury as innocuous and having not responded to multiple treatments and was not going to, in his hands at least. He advised there were a lot of other issues he could see having more of a psychosocial basis than anything else.
265 It was submitted the overwhelming view of treating specialists, who were the best placed to give an opinion, all spoke with one voice. There may be some limited organic pathology, but by and large this was a pain syndrome.[59]
[59]T47
266 It was submitted that there is little support for the contrary proposition and no attempt to disentangle the consequences.[60]
[60]T48
267 Further, it was submitted the MRI did not explain an underlying cause for the plaintiff’s pain.[61]
[61]T44
268 In terms of the medico legal evidence, it was submitted Mr Buzzard did not really assist the plaintiff. Although he did not support a chronic pain syndrome, Mr Buzzard did not think the organic pathology was productive of any incapacity for work and he could not see any justification from a purely physical perspective in the plaintiff working thirteen hours rather than full time.
269 It was submitted the greatest support for the plaintiff came for Dr Sutcliffe who was far less qualified than the surgeons to express a view.[62] M r O’Brien diagnosed chronic non specific left shoulder pain and described a moderate disability. It was submitted his opinion was rather insipid and of little help.[63] His comment that the plaintiff was just coping was based on an acceptance of the plaintiff’s history.
[62]T47
[63]T48
270 Further, it was submitted the plaintiff’s own evidence is consistent with a psychogenically based condition. Improvement would be expected if the condition is organically based yet the plaintiff has reported a worsening of her condition following various procedures.
271 It was submitted the plaintiff’s description of pain at seven out of ten and high as eleven was quite extraordinary for what was described by Mr Owen as an innocuous injury. Further, the plaintiff complains of unusual symptoms on the contralateral side and extraordinary functional limitation involving her ability to walk, stand, sit or drive, involving her shoulder. Those extraordinary complaints were consistent and tended to suggest a pain syndrome rather than organic pathology.[64]
[64]T49
272 On reviewing all the medical evidence and the plaintiff’s own evidence, I am not satisfied that the plaintiff’s treaters support the diagnosis of a chronic pain syndrome and a lack of organic basis for the plaintiff’s complaints.
273 As senior counsel for the plaintiff submitted, Mr Gardiner made no reference to a chronic pain syndrome in his 2003 report. He simply described a complaint of pain that was not localised, not commenting at all on the significance of this finding.[65] At the very least, he was point neutral.[66]
[65]T51
[66]T52
274 Mr Paxinos saw the plaintiff a number of times and gave her quite considerable treatment. His reports generally set out an acceptance of some physical complaint for the plaintiff’s pain and he never stated that it was imaginary, psychosomatic or feigned.
275 I accept that it would be an unfair reading of Mr Paxinos’ view, following numerous consultations, to limit his diagnosis to one of chronic pain without an organic basis, particularly when his last referral of the plaintiff was to Dr Blombery an expert on Complex Regional Pain Syndrome, as opposed to pain management.[67]
[67]T52
276 Whilst Dr Blombery found no evidence of complex regional pain syndrome he did not conclude the plaintiff’s condition was psychosomatic. Although he found she had features of a non specific pain syndrome in her left arm, he then stated the plaintiff’s problem was clearly that of inappropriate nerve messaging which he hoped could be changed by the prescription of Prednisolone and Neurontin, an agent to treat nerve damage.[68]
[68]T53
277 Dr Evans saw the plaintiff numerous times and provided her with a significant amount of treatment. Although he was unclear as to aetiology, he has never described the plaintiff’s condition as psychosomatic nor has he diagnosed a chronic pain syndrome.
278 Clearly, the only medical practitioner who diagnosed a chronic pain syndrome was Dr Barwood, who saw the plaintiff only once. As senior counsel for the plaintiff pointed out whilst Mr Barwood supported this diagnosis, such support was modest and with no real explanation, doing not much more than excluding the need for surgery.[69]
[69]T55
279 Mr Weaver and Mr Dooley’s opinions are somewhat outdated and of little assistance having followed examinations in 2005 and 2007. The views of more recent examiners are to be preferred.
280 Clearly, present medico legal opinion supports the proposition the plaintiff has a physical problem with no reference in the reports of Dr Sutcliffe, Mr O’Brien or Mr Buzzard to the presence of a psychosomatic component or chronic pain condition or conditions driven by psychological issues.[70]
[70]T55
281 I accept the general submission of counsel for the plaintiff that the issue of non organic functional factors is not squarely raised by any recent medico legal examiners,[71] nor by any treaters save for Mr Barwood who saw the plaintiff only once.
[71]T55
282 Psychiatric opinion is divided as to whether the plaintiff has a chronic pain syndrome.
283 Dr Strauss considered this diagnosis was possible but he thought the plaintiff was suffering from an organic condition affecting her shoulder as well as psychologically based pain on an unconscious level. Dr Shan however thought the plaintiff was suffering from an adjustment disorder, a condition that did not contribute to any incapacity for employment.
284 Although a number of procedures have not provided any relief for the plaintiff, she receives benefit from ongoing physiotherapy which enables her to continue working.
285 Whilst there may be some non organic factors in the plaintiff’s current presentation and the aetiology of her condition is somewhat unclear, I am satisfied that her present condition is predominantly organically based taking into account the nature and extent of the treatment received and the views of the plaintiff’s treaters and medico legal examiners overall. .
Credit
286 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[72] :
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[72][2010] VSCA 69 at paragraph 12
287 I found the plaintiff to be a straightforward, truthful and credible witness who gave her evidence very openly.
288 In this case, there was no surveillance film or any evidence inconsistent with the plaintiff’s complaints as to her level of pain and restriction. Further, there was no suggestion by any medical practitioner that the plaintiff exaggerated her condition on examination or embellished her symptoms.
Pain
289 The plaintiff continues to have constant fluctuating left shoulder pain which ranges from a “really bad sort of achy, sharp pain”, present most of the time to a pain of a sharp, stabbing nature.[73] She also has pins and needles in her left hand and a little bit in her palm.[74]
[73]T9
[74]T26
290 The plaintiff confirmed that she had constantly seven out of ten pain that sometimes went to nine and could be eleven, depending on the day.[75]
[75]T27
291 Movement of the plaintiff’s left arm straight out or across her chest aggravates her pain[76] as do overhead and repetitive movements.
[76]T27
292 Relevant to the evidentiary basis of the pain assessment is what the plaintiff has done about the pain in terms of medication, rest and seeking treatment.[77]
[77]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 10 per Maxwell P
293 The plaintiff has had a wide range of treatment, including surgery, hydrodilatation and injections. She continues physiotherapy and psychological counselling which both help her condition.
294 The plaintiff has taken a range of medication at various times. Tramal ceased some time ago because of the side effects but the plaintiff continues to take Panadol Osteo and Panadeine Forte. She also takes a half tablet of Avanza daily and uses Temazepam to help her sleep as needed. She takes Nurofen, usually one to two a day. When her symptoms are severe following a flare up or after a day at work, she also takes Panadeine Forte once or twice a week.
295 The plaintiff is still a relatively young woman, now aged forty. In Stijepic v One Force Group Aust Pty Ltd,[78] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[78][2009] VSCA 181 at paragraph 43
296 The Court held when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period.
297 Because of shoulder pain and restricted movement, the plaintiff has difficulty with simple personal tasks such as taking off a jumper over her head or doing her hair.
298 The plaintiff is significantly restricted in her ability to do housework and requires the ongoing assistance of her mother to help with heavier chores such as vacuuming, scrubbing and cleaning the shower, bathroom and laundry.[79]
[79]T10
299 The plaintiff avoids driving longer distances as she frequently needs to alter her posture to ease the pain in her neck and left shoulder.
300 The plaintiff has been unable to resume full time unrestricted delicatessen duties at the supermarket since the 2002 incident. For the last eight years she has been only capable of working thirteen hours per week on significantly restricted duties.
301 Save for Mr Buzzard, no medical practitioner considered the plaintiff could work more hours let alone full time.
302 The plaintiff’s work affects her shoulder. Even though she has restrictions on her duties, she still has to move her shoulder around and it still plays up most days whilst she is at work. When the plaintiff gets home form work, she cannot do anything because of her shoulder pain.
303 I accept that as a result of her left shoulder injury, the plaintiff has not been able to resume more than part time work since the incident. She has problems with lifting and carrying and significantly restricted in the duties she can undertake at work.
304 This is a serious consequence for an uneducated woman with no experience other than in the manual work.
305 Taking into account the plaintiff’s constant pain, the need for ongoing treatment, the interference with her activities particularly at work, I am satisfied that the plaintiff has a serious injury in relation to her left shoulder.
306 As there has been no significant improvement in the plaintiff’s shoulder condition despite many interventions over the last ten years, I am satisfied her impairment is permanent.
Loss of Earning Capacity
307 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
308 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
309 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
310 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
311 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
312 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein - Barwon Spinners Pty Ltd & Ors v Podolak.[80]
[80](supra) at paragraph 70
313 There was no issue about the “without injury” earnings figure in this case.[81]
[81]T59
314 The plaintiff has earned approximately $16,000 per annum since the 2005-2006 financial year, working thirteen hours per week.
315 Prior to the accident, the plaintiff was working thirty eight hours per week earning about $15 per hour – $570 per week – approximately $30,000 per annum.
316 I accept that the plaintiff is presently working at her full capacity in suitable employment, as her counsel submitted. The plaintiff is only able to work thirteen hours per week, having tried on two earlier occasions unsuccessfully to increase her hours. Further, I accept that plaintiff is just able to cope with significantly restricted duties, experiencing pain in her shoulder when engaging in heavier activities at work.
317 Mr Buzzard is the only medical practitioner who considered the plaintiff had a capacity for full time work but he did think a lifting restriction was appropriate. He really did not explain the basis of his opinion, nor did he consider in any detail the plaintiff’s present problems coping with thirteen hours, or the present restrictions placed on her duties.
318 In contrast, occupational physician, Dr Sutcliffe, analysed in some detail the plaintiff’s restrictions and difficulties engaging in her current part time duties and her inability to work further hours in her present job or in alternative employment.
319 Counsel for the defendant submitted the plaintiff had made really little effort to return to full time work despite her avowed desire to do so. It is now some five years since the plaintiff attempted an increase in hours and she conceded she would probably not know whether she could work full time until she had a try.[82]
[82]T32
320 Despite this concession, I accept that the plaintiff has done her best, and continues to do so. In my view, she would increase her hours if she had the physical capacity to do so.
321 In these circumstances, I am satisfied that the plaintiff has a loss of earning capacity of 40 per cent, working only a third of full time hours.
322 Further, counsel for the defendant submitted the plaintiff had not discharged the onus in terms of retraining and rehabilitation pursuant to ss(g), and that I should not be satisfied there was the requisite loss of earning capacity on a permanent basis.
323 It was submitted that the plaintiff had made no effort to rehabilitate, despite her avowed desire to return to work. She admitted that she had not attempted to look for alternative work, and had made no effort to retrain and, really, she had left responsibility for this issue to the defendant.
324 I do not accept that the plaintiff has not really tried and that she is content to receive part time wages together with Centrelink benefits.
325 With her present level of pain and restriction, the plaintiff is entitled to continue as best she can in her current role and is under no obligation to leave that job to seek alternative employment and retraining in the vain hope her condition will improve.
326 I accept what the plaintiff is doing is entirely sensible, as her counsel submitted. She is working to her full capacity in what is suitable employment. No other work has been suggested as suitable for her and it is the only area in which she has any qualifications, having obtained a certificate 3 in Woolworths Store Operations.
327 There is no suggestion that the plaintiff has been non complaint with any return to work organised by the defendant.[83]
[83]T59
328 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
329 As mentioned earlier, I consider the plaintiff’s impairment is permanent.
330 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering and loss of earning capacity.
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