Humm v Victorian WorkCover Authority
[2018] VCC 1923
•26 November 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-02642
| KARREN ANNE HUMM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 12 and 13 November 2018 | |
DATE OF JUDGMENT: | 26 November 2018 | |
CASE MAY BE CITED AS: | Humm v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1923 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – economic loss – tear of the supraspinatus tendon and sub acromial bursitis of the right shoulder – tear of the supraspinatus tendon of the left shoulder – multiple conditions – compensable and non-compensable conditions – whether inability to work, restrictions and limitations are consequences of compensable injury
Legislation Cited: Accident Compensation Act 1985, S134AB(16)
Cases Cited: Dressing v Porter and TAC [2006] VSCA 215
Judgment: Leave granted in respect of economic loss and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Mr K Mueller | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms F Spencer | IDP Lawyers |
HIS HONOUR:
1 This is an application pursuant to s134AB(16) of the Accident Compensation Act 1985 (the Act) by the plaintiff, Karren Anne Humm, for leave to commence proceedings for damages in respect of the pecuniary loss consequences and pain and suffering consequences of an injury suffered by her whilst employed as a cleaner at Federation University Australia (FUA) in Ballarat. The authorised insurer of FUA is the Victorian WorkCover Authority, which will be referred to in these reasons as the defendant.
2 The injury relied on by the plaintiff is a full thickness tear of the supraspinatus tendon and subacromial bursitis of the right shoulder and a tear of the supraspinatus tendon of the left shoulder. The body function relied on by the plaintiff is her shoulders.
3 The plaintiff commenced employment at FUA on 2 August 2008 as a cleaner on a permanent part-time basis, working six hours per day, five days per week. Her duties were to clean the student and staff accommodation areas at the university.
4 In August 2011, the plaintiff began to experience pain in her right shoulder, and in July 2012, she was diagnosed with a supraspinatus tear and degenerative changes to the shoulder.[1] The plaintiff was treated for this condition and continued to work part-time until June 2013. She has not worked since then.[2]
[1]Plaintiff’s Court Book (PCB) 12
[2]PCB 14
5 In early 2015, the plaintiff began to experience significant pain and restriction in her left shoulder,[3] and it is accepted by the defendant that her injury to the left shoulder is a consequence of the rehabilitation undertaken by her in relation to her right shoulder, and that both injuries are a compensable injury for the purposes of the application.[4]
[3]PCB 15
[4]Transcript (T) 2
6 In support of the application, the plaintiff tendered three affidavits affirmed by her on 1 December 2015, 1 February 2018 and 30 October 2018. She attended the hearing of the application, gave evidence and was cross-examined. No other oral evidence was called and otherwise the parties relied on the medical and other evidentiary material tendered by them.
7 The plaintiff was born in Ballarat on 6 May 1961 and is now aged 57. Her childhood and developmental years were marked by severe abuse and trauma. She resided in State care in Colac in her early childhood until the age of 10, before returning to her family in Ballarat.[5] She had little or no formal education and left school at 15.[6] She gave birth to her first child at the age of 16.[7] She has resided in Ballarat since returning from Colac and has given birth to four children. Her husband died in 2006, and she has since re‑partnered with Graham Smith, who has seven children of his own.[8]
[5]T8
[6]T8
[7]T8
[8]PCB 8
8 Prior to commencing work with FUA, the plaintiff was engaged in home duties. She was also employed as a labourer at the Ballarat Meat Works[9] and various other unskilled occupations. Between 2001 and 2005, she was employed as a cook and waiter and, following this, as a curtain maker, before joining FUA.[10]
[9]PCB 8
[10]PCB 9
9 The evidence demonstrates that the plaintiff has worked very hard to overcome her disadvantaged and disrupted background, and she impressed me as a credible and truthful witness.
10 It was accepted by the defendant that the pain and suffering consequences of the plaintiff’s injury to her shoulders amounts to a serious injury for the purposes of the Act, and the application proceeded on the basis that the question to be resolved by the Court concerns the plaintiff’s residual capacity for suitable employment.
11 On 12 November 2012, the plaintiff was referred to Mr Andrew Byrne, orthopaedic surgeon, by her treating doctor.[11] She provided a history to Mr Byrne of the insidious onset of pain in her right shoulder commencing approximately 12 months prior to his examination. That examination revealed:
“Examination of the right shoulder on the 12th November 2012 confirmed a painful arc in abduction and forward flexion of a mild degree. Muscle wasting was evident. There was focal tenderness in the subacromial region of a mild degree also. The long head of biceps was intact. There was some weakness of external rotation identified but a well preserved range of motion. The shoulder was otherwise stable. The acromioclavicular joint was not irritable.
I advised Ms Humm she had evidence of a rotator cuff injury and recommended an MRI of the shoulder to clarify the diagnosis.”[12]
[11]PCB 59
[12]PCB 59 - 60
12 An MRI scan was performed of the plaintiff’s right shoulder on 15 November 2012 which revealed a full thickness tear of the anterior aspect of the supraspinatus with delamination. There was bursal swelling noted and impingement.[13] Following the results of the MRI, Mr Byrne recommended shoulder surgery and sought permission from the defendant, which was declined.[14]
[13]PCB 60
[14]PCB 60
13 The plaintiff continued to work at FUA on reduced hours and her right shoulder injury deteriorated. On 4 June 2013, Mr Byrne performed an arthroscopy of the plaintiff’s right shoulder,[15] which did not improve her condition. On 17 October 2013, Mr Byrne performed a right shoulder hydrodilatation, which also did not improve her condition.[16] The defendant approved right shoulder surgery and, on 26 November 2013, the plaintiff underwent a right shoulder arthroscopy decompression and capsulotomy at the St John of God Hospital in Ballarat.[17] In a report dated 17 September 2014, Mr Byrne summarised the plaintiff’s recovery from that surgery:
“On 10th December 2013 she was seen again. She was now two weeks following surgery. She was attending physiotherapy and taking Panadeine Forte for pain control as well as Endone. She said the movement had now improved significantly. Her wounds had healed primarily. I recommended that she would not really be able to return back to work as a cleaner as yet and that as she was having right hip pain this would preclude her from returning back to work. I asked to see her again in two months.
I reviewed her again on the 7th February 2014 with regard to her right shoulder. She still had weakness in the right shoulder. She was taking no analgesics however at this stage. Her movement had also improved. I recommended continued conservative measures and asked to see her again in one month.
I reviewed her again on 6th March 2014. Her right shoulder was still sore but it was improving. She was taking Panadeine forte at times for pain control as well as Celebrex. She was still attending physiotherapy. She told me she was still waiting to attend hydrotherapy.”[18]
[15]PCB 25; 65
[16]PCB 25; 66
[17]PCB 66
[18]PCB 66
14 On 9 December 2014, the plaintiff was again examined by Mr Byrne and she reported to him that her left shoulder was now an issue. In a report dated 23 December 2015, Mr Byrne stated:
“I reviewed her again on the 9th December 2014. She was attending physiotherapy and hydrotherapy. She stated that her left shoulder now was an issue. She was in rehabilitation and pulling overhead when she developed pain in her left shoulder. She had informed me that she had undergone an ultrasound examination of the left shoulder which revealed a significant tear in supraspinatus. It was a partial thickness tear.
Examination of the left shoulder on the 9th December 2014 confirmed a painful arc in abduction and forward flexion. There was muscle wasting noted. There was focal tenderness in the subacromial region of a significant degree. The long head of biceps was intact. There was some weakness of external rotation identified but a well‑preserved range of motion. The shoulder was otherwise stable. The acromioclavicular joint was not irritable.
I informed Ms Humm she had evidence of a healing right shoulder but evidence of a partial tear in her left supraspinatus. I advised that she may require intervention to her left shoulder in the future but time would tell.”[19]
[19]PCB 70-71
15 On 9 June 2015, Mr Byrne performed a left shoulder arthroscopy at St John of God Hospital in Ballarat. He noted:
“At surgery at St John of God Healthcare, Grade II articular damage to the glenoid was confirmed. Labral tearing was noted anteriorly involving the glenoid labrum. This was repaired. Significant synovitis was noted throughout the glenohumeral joint which required a synovectomy. Grade II articular damage to the humeral head was also identified. A decompression was performed. Examination of the rotator cuff confirmed a 2.0cm x 3.0cm tear involving supraspinatus. This was repaired.”[20]
[20]PCB 72
16 Mr Byrne examined the plaintiff on 26 February 2016. Mr Byrne examined the plaintiff’s left shoulder and ―
“… confirmed a global loss of movement in all parameters consistent with the diagnosis of adhesive capsulitis (frozen shoulder). There was general irritability noted anteriorly in the glenohumeral region. An external rotation range was significantly decreased but power reasonably well preserved.
I advised Ms Humm that she would benefit potentially from an arthroscopy and capsulotomy of the shoulder.”[21]
[21]PCB 75
17 On 4 March 2016, the plaintiff was examined by Mr Thomas Kossmann, orthopaedic surgeon, who concluded:
“The prognosis regarding Ms Humm’s right shoulder is positive. Since our initial consultation, the adhesive capsulitis has almost fully resolved with restoration of her range of motion. Although she has some persistent right shoulder pain, it has improved. I anticipate further improvement with ongoing physiotherapy and hydrotherapy.
Regarding the left shoulder adhesive capsulitis, Ms Humm’s prognosis is somewhat guarded. The natural history of shoulder adhesive capsulitis is often spontaneous resolution after one to three years. Her prognosis may improve with consideration of the following conservative treatment regimen:
·Non steroidal anti-inflammatory medication;
·Ongoing physiotherapy;
·Left shoulder Manipulation Under Anaesthesia (MUA) and intra-articular injection of corticosteroid; and
·A further left shoulder hydrodilatation.
Failing this, Ms Humm may benefit from consideration of a left shoulder arthroscopic synovectomy and capsular release.
Ms Humm is at risk for the development of bilateral shoulder degenerative osteoarthritis, the natural history of which is often progressive in nature. I am unable to quantify the chance of this occurring. In the event that this does occur and she is no longer able to manage with the symptoms, she may become a candidate for consideration of a total shoulder replacement. Again, I am unable to quantify the chance of this occurring.”[22]
[22]PCB 99
18 On 5 May 2016, the plaintiff underwent further surgery to her left shoulder, performed by Mr Byrne, who reported:
“At surgery an arthroscopy was performed along with a limited decompression. A labral tear was prepared for repair involving the anterior aspect of the labrum as well as Grade II articular damage of the glenohumeral joint identified. This required a chondroplasty. A capsulotomy was performed also.”[23]
[23]PCB 76
19 In a report dated 20 June 2017, the plaintiff’s general practitioner, Dr Andrew Webster, summarised the plaintiff’s condition as follows:
“Karren continues with treatment as follows: ongoing orthopaedic review - she had a left shoulder operation 5/5/16 with Mr Andrew Byrne which was an arthroscopy and capsulotomy of the aforementioned shoulder - this has restored her shoulder to 85-90% capacity but not to pre injury levels of function. Her right shoulder on the other hand still has a significant disability with capacity 65% she tells me. Karren has adapted to her disability by becoming more left hand dominated with her activities of daily life.”[24]
[24]PCB 81
20 More recently, on 24 October 2008, Mr Kossmann examined the plaintiff and he concluded:
“Ms Humm’s prognosis regarding [her] left shoulder is guarded. Ms Humm suffers from ongoing pain in her left shoulder joint and she will require further treatment for her left shoulder joint condition with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. Humm is at risk that she may develop osteoarthritic changes in her left shoulder joint, for which she may require treatment according to her symptoms.
Ms Humm’s prognosis regarding [her] right shoulder condition is guarded. Ms Humm suffers from ongoing pain in her right shoulder joint and she will require further treatment for her right shoulder joint condition with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. Ms Humm is at risk that she may develop osteoarthritic changes in her right shoulder joint, for which she may require treatment according to her symptoms.”[25]
[25]PCB 398
21 I am satisfied that the injuries to the plaintiff’s shoulders have stabilised and may now properly be described as permanent.
22 Whilst it is accepted by the defendant that the pain and suffering consequences of the injuries to the plaintiff’s shoulders constitutes a serious injury for the purposes of the Act, in determining whether the injury to her shoulders is a serious injury for pecuniary loss purposes, I am required to disentangle the injury to her shoulders from her other medical conditions and injuries suffered by her, namely:
(i)a pre-existing psychiatric condition, in particular, depression;
(ii)a degenerative condition in her right hip;
(iii)a degenerative condition in her lower back; and
(iv)a rheumatological condition, Sjogren’s syndrome, an illness impairing the production of body fluid in her mouth and eyes.
23 In Dressing v Porter and TAC [2006] VSCA 215, the Court of Appeal considered the role of a court hearing a serious injury application where the evidence discloses that the plaintiff suffers from multiple medical conditions which are compensable and non-compensable conditions. The Court concluded that the judge is required to identify the consequences of the compensable injury relied upon in support of the application.[26]
[26]Paragraph 47 per Ashley JA; see also Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peake Engineering Pty Ltd and VWA v McKenzie [2014] VSCA 67
24 I accept that to grant leave to the plaintiff to commence proceedings for pecuniary loss damages in respect of the plaintiff’s shoulder injury, I must be satisfied that the test provided for in s134AB(38)(g) of the Act is met as a consequence of the shoulder injury and not the other injuries or medical conditions identified by the defendant. It is also necessary for me to approach the analysis on the basis that the relevant provision of the Act is a “gateway” provision and the focus is on the plaintiff’s earning capacity and not an assessment of damages.[27]
[27]Tilahun Yirga-Denbu v VWA [2018] VSCA 35 at para 71
25 When the plaintiff was first examined by Mr Byrne, she had been off work due to a medical condition in her right hip.[28] An MRI revealed a partial thickness tear in the gluteals and the onset of arthritis and posterior osteophytes.[29] On 29 April 2015, Mr Byrne sought approval for a right hip arthroscopy and labral repair.[30] That surgery was not carried out and, on 16 March 2017, Mr Byrne stated:
[28]PCB 59
[29]PCB 60
[30]PCB 69
“Although we have no recent imaging of the right hip, the original imaging (MRI) revealed a significant labral tear. I repeat, given the fact that trochanteric bursal injections failed to give any improvement to her symptoms, it would be reasonable to presume that the labral tear is a significant “player” with regard to her pain.
As it has taken many years to get to this point, it would be very appropriate to re-image the hip prior to making a definite decision as to whether an arthroscopy is the correct procedure currently. Her two shoulders have been operated on in the interim and we were waiting for them to recover so that she would be able to use crutches should these be needed following hip surgery.”[31]
And, further:
“As she has continued pain in the hip joint and the fact she is now 55 years of age, it would be reasonable to presume that it is unlikely she will be returning back to work in the foreseeable future.”[32]
[31]PCB 79
[32]PCB 79
26 The plaintiff continues to suffer from pain in her right hip and she has been advised by Mr Byrne that a total hip replacement is likely in the future.[33] Furthermore, Mr Kossmann, in his report of 24 October 2018, refers to the plaintiff’s right hip condition as follows:
[33]T20
“Ms Humm’s prognosis regarding her right hip condition is poor. Ms Humm suffers from pain in her right joint and she will require further treatment for her right joint condition with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. I believe that her chances to undergo surgery is moderate to high. Ms Humm is at risk that she may develop osteoarthritic changes in her right hip joint for which she may require a total hip replacement at some stage in her life.”
Mr Kossmann also states:
“As a consequence of the physical injury and impairment of Ms Humm’s right hip and right and left shoulder joints, she is incapacitated from returning to her pre-injury employment.”[34]
[34]PCB 399
27 Mr Kossmann was then asked by the plaintiff’s legal representatives to consider the effect on her work capacity of the injury to her left shoulder, right shoulder and right hip. He expressed the following opinion in relation to each individual injury:
“As a consequence of the physical injury and impairment of Ms Humm’s right shoulder joint, she is restricted in relation to employment and related activities. Manual work requiring prolonged weight bearing and repetitive bending, repetitive handling of heavy loads and repetitive overhead use of the upper limbs is contraindicated.
I believe that this incapacity will continue for the foreseeable future.”[35]
[35]PCB 399
28 Further:
“As a consequence of the physical injury and impairment of Ms Humm’s right shoulder joint, she is incapacitated from returning to her pre-injury employment.
I believe that this incapacity will continue for the foreseeable future.”[36]
[36]PCB 399
29 And further:
“Ms Humm has a very limited work capacity as a result of her right shoulder injury. Manual work requiring prolonged weight bearing and repetitive bending, repetitive handling of heavy loads and repetitive overhead use of the upper limbs is contraindicated. She may qualify for work. However only with incorporating the mentioned restrictions.
I believe that this incapacity will continue for the foreseeable future.”[37]
[37]PCB 399-400
30 Plainly, the fact that Mr Kossmann is of the opinion that each injury to the plaintiff’s shoulders render her unfit for her pre-injury employment and only fit for employment with the restrictions he refers to, means that where both of her shoulder injuries are taken into account, as I am permitted to do, her work capacity is further reduced. It is also clear that the condition of the plaintiff’s right shoulder deteriorated between Mr Kossmann’s examinations in 2016 and 2018.
31 Following an examination of the plaintiff on 19 October 2018, Dr Ralph Poppenbeek, a specialist occupational physician, was requested by the plaintiff’s solicitor to consider the effect of injury to the plaintiff’s right shoulder, left shoulder and right hip on her work capacity. In relation to the right shoulder, Dr Poppenbeek expressed the following opinion:
“Injury to the dominant arm, taken in isolation, will limit employment or related activity, which requires overhead or strenuous or repetitive use of the arm.
I estimate the extent of this restriction to be moderate to severe.
This incapacity will very likely continue into the foreseeable future, in my opinion.”[38]
[38]PCB 385
32 And further:
“In regard to restrictions to the right arm injury alone, she could perform suitable employment with significantly restricted right arm function, for a maximum of 10 hours per week. Employment options could include light process work or administrative work.”[39]
[39]PCB 386
33 Dr Poppenbeek expressed the same opinion in relation to the plaintiff’s left shoulder. When asked to consider her work capacity when the injury to both shoulders was taken into account, Dr Poppenbeek expressed the following opinion:
“Considering the incapacity resulting from injury to both shoulders combined, Ms Humm’s options are very limited. She could perform light process work or similar work, with the arms close by the side of the body, to a maximum of 10 hours per week.
However finding suitable duties would be very difficult and impractical. This incapacity is permanent.”[40]
[40]PCB 387
34 This opinion was arrived at by Dr Poppenbeek without consideration of the injury to the plaintiff’s right hip. Whilst the evidence discloses that the plaintiff continues to suffer from lower back pain, it is clear from the opinions of Mr Kossmann and Dr Poppenbeek that the injuries to the plaintiff’s shoulders alone have impaired her capacity to perform suitable employment.
35 On 2 May 2017, the plaintiff was examined by Mr Richard Pease, an orthopaedic surgeon, on behalf of the defendant. Following his examination, Mr Pease concluded that the plaintiff suffered from “… relatively minor symptoms which are related to her shoulder injuries”.[41] He further stated:
“However, based on my physical examination, she appears to have completely recovered, thus, from a physical point of view, aggravation has now ceased.”[42]
[41]Defendant’s Court Book (DCB) 72
[42]DCB 72
36 As I observed during the course of the proceeding, it is not the case for the plaintiff that her employment aggravated a degenerative condition in either or both of her shoulders, and this was accepted by the defendant. It would therefore appear that Mr Pease has misunderstood the nature of the plaintiff’s compensable injury.
37 On 30 July 2018, the plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, on behalf of the defendant. Following his examination, Mr Dooley expressed the following opinion regarding the plaintiff’s work capacity:
“I do not believe that Ms Humm would be able to carry out her preinjury work:
(a)From an orthopaedic viewpoint only, Ms Humm would have a physical capacity to carry out some light physical work and clerical duties. She would not be able to carry out heavy physical work or work that involved a lot of activity at and above shoulder level.
…
(c)Any return to suitable work would need to be on a graduated basis.”[43]
[43]DCB 87
38 When asked to consider the plaintiff’s capacity for employment as a retail sales assistant, receptionist or packing supervisor, Mr Dooley concluded that:
“Based on the duties described, I believe on the whole Ms Humm would have a physical capacity to carry out these tasks. In relation to working as a receptionist, it was noted that on occasions archiving boxes of files etc would be required. Ms Humm would not be able to carry out heavy lifting or do a lot of lifting at and above shoulder level.
I believe that return to suitable work would need to be on a graduated basis. One would then be able to better assess the number of hours that Ms Humm would be able to work. From a purely orthopaedic point of view, I believe that Ms Humm would have a physical capacity to increase her hours towards full time.”[44]
[44]DCB 89
39 The plaintiff was also examined by Dr Roy Karna, rheumatologist, who concluded:
“Her conditions are fundamentally degenerative and likely to be progressive in time. Her right shoulder symptoms and dysfunction cause her more problems being dominantly right handed and the symptoms are more severe. She has left sided shoulder girdle trouble with known biomechanical stresses to the shoulders such as stretching, reaching and carrying heavy items.”[45]
[45]DCB 93
40 The plaintiff was also examined by Dr Robyn Horsley, occupational physician, and was informed that the plaintiff had undertaken retraining as a pathology collector. Evidence discloses that the plaintiff has completed a Certificate 3 in Pathology Collecting but has not completed a Certificate 4, which would permit her to work as a pathology courier.[46]
[46]T66; 67
41 Dr Horsley, following her examination, expressed the following opinion:
“I note that she retrained as a pathology collector, but did not complete the last two weeks of practical experience with Certificate IV of Pathology Collecting, because of her impending surgery and increasing left shoulder disability. If this could be completed, then I believe that this type of role would be most suitable on a part time basis, 15 to 20 hours per week. To complete the course, she needs to complete the last two weeks which would probably require a refresher. This would need to be organised through an employment agency. Without assistance, Ms Humm will remain out of the work force into the longer term.”[47]
[47]PCB 124
42 I accept that the medical evidence discloses that the plaintiff is theoretically capable of part-time work in the nature of pathology collection and that she has completed a Certificate 3 qualifying her for that role. However, it is also clear that the injuries to the plaintiff’s shoulders cause her significant pain and restriction, and the duties of a pathology collector involve the use of both arms and hands, and is not a simple task.[48] The medical evidence I have referred to reveals that the practitioners who have examined the plaintiff are guarded in their opinions regarding the extent of her capacity for part time work.
[48]T37
43 The plaintiff was unable to complete the Certificate 4 in Phlebology because she was unable to complete a full first aid certificate, which was a pre-requisite in that course.[49]
[49]T29
44 Furthermore, in assessing the plaintiff’s capacity for suitable employment, I am permitted to have regard to her age, educational qualifications, previous work history and other factors relevant to her, namely; the ongoing effects of the trauma suffered by her as a child. I do not accept that the plaintiff is currently suited to work as a receptionist, shop assistant or other like occupation having regard to the factors I have referred to and the evidence that she gave herself.[50] Whilst these occupations are identified as suitable for the plaintiff in the Vocational Assessment Report relied on by the defendant,[51] in my opinion her educational levels, including only basic numeracy and literacy, do not support this. The report also refers to her capacity to work as a packing supervisor, however this work would require physical activity[52] which would be restricted by her shoulder injuries.
[50]T58
[51]DCB 150
[52]DCB 175 - 178
45 The plaintiffs general practitioner concluded that she has “no suitable capacity for employment as she left school at 15 and has no higher education as a result”, that her incapacity is permanent and she is on a disability support pension.[53]
[53]PCB 82
46 The medical evidence that I have referred to concerns the plaintiff’s shoulder injuries and the impact of those injuries on her capacity for suitable employment. I do not accept that the medical evidence impermissibly aggregates all of the medical conditions that the plaintiff suffers from; it refers to her shoulders.
47 I accept that Dr Poppenbeek’s analysis of those factors, together with the incapacity arising from the plaintiff’s shoulder injuries, namely that the plaintiff could perform light process work or similar work with arms close by the side of her body to a maximum of 10 hours per week is an accurate analysis of the plaintiff’s current employment capacity. Assuming that the plaintiff is currently suitable for employment as a pathology collector and such a position is available in the Ballarat area, she is nevertheless only capable of limited part time work and the pecuniary loss test provided for in the Act is accordingly met.
48 For the reasons set out above, it follows that the plaintiff is entitled to the order sought in the application, namely leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury relied upon by her in support of the application.
49 I will hear the parties as to the precise form of orders sought in the matter and also upon the issue of costs.
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