Inostroza v Melbourne Health

[2015] VCC 1433

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-10-01776

YOLANDA INOSTROZA	Plaintiff
v
MELBOURNE HEALTH	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June and 10 August 2015
DATE OF JUDGMENT:	10 September 2015
CASE MAY BE CITED AS:	Inostroza v Melbourne Health & Anor
MEDIUM NEUTRAL CITATION:	[2015] VCC 1433

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – impairment to the left upper limb – pain and suffering only

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)

Cases Cited:McKenzie v Peak Engineering & Anor [2012] VCC 1661; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Humphries & Anor v Poljak [1992] 2 VR 129; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

Judgment:                 Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett with Ms S Jurica	Arnold Thomas & Becker Pty Ltd
For the Defendants	Ms R N Annesley QC with Ms D Manova	Hall & Wilcox

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 during the course of her employment with the first defendant (“the employer”) on August 2003 (“the said date”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. 

3 The plaintiff brings this application primarily 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 relevant body function is the left upper limb.

5       Applications relating to the spine and psychiatric impairment were withdrawn prior to hearing.

6       Whilst counsel for the plaintiff initially argued the impairment of the upper limb involved a discrete shoulder injury together with referred pain to the shoulder from the neck, ultimately it was submitted the impairment focussed on a discrete shoulder injury.[1]

[1]Transcript “T”123

7       Further, it was submitted this impairment was organically based. Accordingly, there was no reliance upon a chronic pain syndrome as accepted by the Court in Veljanovska v Socobell.[2]

[2](2005) VSCA 227; T6 and T9

8       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.

9       The impairment of the body function must be permanent.

10      The plaintiff bears an overall burden of proof upon the balance of probabilities. 

11 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

12      The plaintiff relied upon four affidavits and gave viva voce evidence.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material. 

13      When this matter commenced on 3 June 2015, I indicated that the plaintiff’s affidavit material was deficient in that it failed to identify consequences referable to the relevant impairment.

14      The Court was advised that the third affidavit had been drawn with McKenzie v Peak Engineering & Anor[3] in mind.[4] However, I indicated it was not possible on the material presently available to delineate the consequences of the compensable injury and other non-related medical conditions.[5]

[3][2012] VCC 1661

[4]T7

[5]T35

15      I granted leave to the plaintiff to file further affidavit material and adjourned the further hearing to enable this to take place. Counsel for the defendant opposed the adjournment, submitting it would lose the forensic advantage of the cross examination to that stage if the plaintiff was given the chance to remedy the defects in her application.[6]

[6]T38

The Plaintiff’s evidence 

16      The plaintiff is presently aged fifty-nine, having been born in November 1956 in Chile. Having undertaken some study there, she worked as a restaurant manager and then in a car parts business.  She then undertook some nursing training.

17      The plaintiff came to Australia in 1995 because of matrimonial issues and her children having been brought to Australia by her divorced husband.  Whilst in Australia, the plaintiff remarried and divorced. She now lives alone in Sydney, with her daughter living nearby.

18      In Australia, the plaintiff worked initially as a cleaner in her husband’s business and then undertook training as a patient carer, performing a number of jobs in that area before starting work with the employer in March 2002. In that role, she was working substantially with patients who had mental health issues. She loved working as a patient care attendant and the physical interaction with patients.

19      On the said date, the plaintiff attempted to catch a falling patient with her left hand. Whilst doing so, the plaintiff twisted her body, and then developed symptoms of pain in neck, shoulder and low back (“the incident”).

20      The plaintiff became aware of left shoulder pain and pain on the left side of her neck within days of the incident.  She also had a headache. She tried to keep working as best she could but the pain became too much and she reported the injury.

21      The effects of the injury involved pain and restriction of movement of the left shoulder, pain in the neck and face and headaches and a psychiatric condition.

22      The plaintiff sought treatment from Dr Abuel in Keilor Downs and also received physiotherapy treatment at that clinic.

23      The plaintiff’s WorkCover claim for weekly payments was accepted as was her impairment benefits claim for aggravation of degenerative changes to the cervical and thoracic spine, left shoulder and psychiatric condition.

24      The plaintiff had two failed attempts at returning to work with the employer on restricted duties. In 2014, she tried to work at a nursing home in Sydney and could only work for a day and has not worked since.

25      Because of the effects of her injury, the plaintiff moved to Sydney in March 2004 to live with her daughter.  After a short period back in Melbourne she returned to live with her daughter in Sydney at the end of 2006.

26      In November 2003, the plaintiff was diagnosed with depression. She he saw a psychiatrist weekly and was prescribed Cipramil.  She had physiotherapy treatment when she moved to Sydney and was referred to Jerome Goldberg, an orthopaedic surgeon, specialising in shoulder surgery.

27      On 19 October 2004, the plaintiff had an arthroscopic subacromial decompression operation of her left shoulder.  It did not help and if anything made things worse.  She saw Dr Goldberg for about three or four months.

28      In 2005 the plaintiff saw a general practitioner, Dr Phan, in Hallam, whom she saw for about twelve months.

29      Dr Boecksteiner, surgeon, in Melbourne, performed right ulnar nerve surgery on the plaintiff in November 2002.  The plaintiff went back to see her in 2005 as she was having severe pain around her right elbow because she was doing too much with her right arm because of her left shoulder problem. 

30      The plaintiff deposed there was further right arm surgery in 2005 when a plate and screw was inserted. That procedure improved the right arm so the plaintiff did not experience severe right arm pain.

31      The plaintiff had a cervical block performed by Dr Courtney at Western Health Chronic Pain Service in October 2005. In January 2006, the plaintiff started pain management treatment with Dr Courtney. 

32      The plaintiff saw a psychologist, Monica O’Keil, for about three months in 2006. When she went to Sydney towards the end of 2006 she started to see Dr Huber, general practitioner.

33      Dr Huber referred the plaintiff to Dr Tan at St Vincent’s and he did not want to operate in 2007.  He later gave her a shoulder injection which gave her some movement but then thought an operation would be beneficial.

34      On 5 September 2008, Dr Tan performed a full shoulder replacement operation (corrected in the second affidavit to be a tendon repair) which was highly successful but the plaintiff was left, nevertheless, with pain and restriction of movement and power.  She kept seeing Dr Tan for a considerable time and he thought her continuing neck pain might relate to an injury to her cervical spine and referred her in May 2009 to Dr Steel, neurosurgeon, who advised an MRI scan of the cervical spine.

35      The plaintiff had been referred by Dr Huber to a psychiatrist but had not seen one yet as of December 2009. 

36      In her first affidavit, the plaintiff described her left shoulder, neck pain, headaches and psychiatric condition. She was in receipt of a disability support pension in respect to the effects of the injury.

37      The extent of left shoulder complaints were restricted movement, in particular movements that involved moving the arm towards the back of her body.  She had pain in the left shoulder if force was applied through it; for example, pushing or pulling or lifting anything that was too heavy.  If she had left shoulder pain, there would also be neck pain.

38      The plaintiff described her dependency on her daughter for household tasks.

39      There was no mention in this affidavit of any back problem or of any ongoing difficulties with the right arm since 2005. 

Pre-incident psychiatric

40      In her first affidavit sworn in December 2009, the plaintiff described two pre-incident bouts of depression: one when she separated from her husband and did not have treatment; the second in 1997, when she learnt her daughter was using cocaine.  The plaintiff was then put on antidepressants and saw her general practitioner and a Spanish speaking psychiatrist.

41      Thereafter, the plaintiff was maintained on antidepressants and managed well.  In 1997 she was prescribed Effexor and later Cipramil. 

42      As of December 2009, the plaintiff was living in Sydney. She had been in a relationship with a man in Victoria for about ten months. She was then in receipt of a disability support pension in respect to the effects of the injury.[7]

[7]See paragraph 20 of the plaintiff’s first affidavit

43      On 24 April 2003, the plaintiff saw her general practitioner because she was emotionally upset because her elder daughter had told her that her younger daughter was again using cocaine but that time the plaintiff did not suffer a relapse of depression.

44      On the first day of hearing, the plaintiff was cross-examined at length as to this description of her psychiatric history.

45      The plaintiff ultimately conceded that she was in fact still taking anti-depressant medication at the time of the incident.[8] It was such a long time ago she could not remember and she did not mention it in her affidavit. She did not tell Dr Stern or Professor Mendelson about this history but then said she did.[9]

[8]T15

[9]T17

46      The plaintiff then agreed that she was hospitalised for depression in 1997 for one night because of her daughter’s drug use.  That problem continued on and off leading up to the incident. That was the case right up until 2008 and caused the plaintiff significant stress, worry and financial difficulties.[10]

[10]T18

47      The plaintiff initially agreed that she tried to take her own life in 2000 when she jumped in front of a train. She also tried to take her own life in May 2001 and had to be admitted to Emergency at Western Hospital. She had been treated at the Melbourne Clinic that month.[11]

[11]T18

48      The plaintiff did not tell the Court about those things because her memory was very bad.[12] She then agreed that she had continuing emotional problems from 1997 right up to the time of the incident.  A lot of them centred around her daughter.  She then said she could not remember jumping in front of a train in 2001.[13] 

[12]T18

[13]T19, confirmed in re-examination at T97

49      The plaintiff could not remember being referred to the Royal Melbourne Hospital for a psychiatric consultation for major depression only weeks before the incident, but that was likely if it was recorded. She agreed that she was probably on Cipramil (three tablets a day) then.[14]

[14]T20

50      Whilst the plaintiff had deposed that she had short episodes of depression, she agreed her evidence that morning had been different. She was taking considerable medication at the time of the incident.  She agreed that her evidence was a very different picture to what she had set out in her affidavit of two short lived bouts of depression in 1997.[15]

[15]T21

51      In her fourth affidavit, sworn after the first day of hearing,  the plaintiff attempted to clarify some matters regarding other medical conditions and spell out the ongoing consequences of her left shoulder and left arm injury.

52      To the best of her recollection prior to the incident, the plaintiff had some depression triggered by her marital breakdown and her daughter’s drug use.  The latter significantly affected the plaintiff and she had one suicide attempt after her marriage broke down. She had threatened or contemplated suicide on other occasions but had generally recovered by the time of the incident, although she believed she took anti-depressants for some years.

53      The plaintiff has a bad memory and much of her affidavit material had been compiled with legal assistance. The plaintiff did not like to think about the personal issues because they were a bad time for her and her daughter. Her daughter is now drug-free and they have a very good relationship.

Post incident complaints and treatment

54      In her second affidavit sworn in April 2015, the plaintiff first mentioned that she also suffered an injury to her lower back in the incident which had over time become very serious. It was well documented that she had severe low back problems relating back to the time of the incident.

55      However, in the early years, the plaintiff’s low back was manageable with physiotherapy and medication, whereas her neck and shoulder were far more serious and painful.  Thus, her attention was directed to those problems. It had only been of more recent years that her low back had emerged as an equally serious problem.

56      The plaintiff’s first affidavit was prepared following a conference with a barrister.  He asked questions and then prepared the affidavit on the basis of her answers.  The plaintiff did not know why the affidavit did not mention her low back which by the time of swearing that affidavit had become a very significant problem.

57      In cross-examination, the plaintiff explained the barrister who drew her first affidavit made a mistake omitting her back problems.[16]  She agreed that with that mistake, she would be very careful as to what was put in subsequent affidavits and that they be an accurate record of her pre-injury health.[17]

[16]T10

[17]T11

58      As of early 2015, the plaintiff was seeing Dr Huber and Dr Winder irregularly.  Dr Woodgate had suggested significant neck and low back surgery but WorkCover would not pay for it.  The plaintiff was not having physiotherapy and she was continuing to see a psychologist. She was about to start a pain management course, having done one earlier in 2011, to help her deal with her chronic pain.

59      As of April 2015, the plaintiff was taking OxyContin 20 milligrams twice a day; Endone one or two a day; Temazepam daily to help her sleep; as well as an anti-depressant and DiGesic.

60      Although the first shoulder operation gave her considerable improvement, the plaintiff continued to have left shoulder problems. She had significant symptoms with continuing shoulder and neck pain which appeared related and came on together.  The pain was constant but partially relieved by medication.

61      That pain also caused almost daily headaches. Sometimes they were relatively mild and she could keep doing what she was doing, but if they were severe, about twice weekly she had to lie in a darkened room.

62      The left shoulder movement was much better than prior to the surgery but the plaintiff has still had restriction of movement, particularly reaching behind her to do up her bra. Exercise or use of the shoulder, such as carrying a handbag, could bring on sharp pain.

63      The plaintiff also had constant lower back pain which could be very bad.  She could not walk long distances, and did not drive because of her medication intake. Sometimes she had to do her own shopping as her daughter was too busy. When she did so, her pain increased.

64      With OxyContin, the plaintiff felts like she could do anything but that lasted only two or three hours and after its effects wore off, she felt very tired. She has aggravated her condition often because she has been too active under the drug.

65      The plaintiff’s condition made her very depressed. Facing her neck, shoulder and lower back pain and those restrictions and the loss of future as she cannot work and is on a disability pension all make her despair.  She took anti-depressants but cried very easily and felt worthless and a burden.  She did a meditation course to try and deal with this but found it very difficult to relax.

66      The plaintiff had become debilitated by her condition and situation.  She recently had pneumonia that lasted a matter of months but that substantially recovered.  She thought she was susceptible to this attack and that it lingered because of her general mental and physical condition.

67      There was no mention of any ongoing right arm problems in this affidavit.

68      In her third affidavit sworn in 1 June 2015, the plaintiff deposed that following the incident, when her initial and main injury was to her shoulder, she was not able to work as a patient care attendant and had not been able to since.

69      Dr Tan had told the plaintiff that there was a further tear in the shoulder but he did not recommend further surgery, advising her she would just have to live with it and maybe have some injections.  Whilst having had some injections, she was not keen to have any more.

70      At present, the plaintiff continues to have neck pain, sometimes without obvious cause. When it comes on, it causes increased pain in her shoulder and arm.

71      Using her left shoulder and arm, such as carrying shopping bags, increases the plaintiff’s pain. As she still has a problem with her right arm, this causes difficulties.

72      Movement of the left arm, including above shoulder height, causes pain and numbness in the shoulder. Hanging out the clothes is an effort and causes her numbness and pain.

73      If the plaintiff aggravates her pain, she has to take painkillers and also use a heat pack. Aggravations can last for hours, even days.

74      If the plaintiff does anything that causes neck pain, it causes pain to run down both arms, not just the left.  She normally puts the bins out with her right arm but that strains her neck which causes a flare up in her left arm.

75      The plaintiff’s left hand is noticeably weaker than the right.

76      The plaintiff confirmed her problems sleeping.[18]

[18]See paragraph 63 of the plaintiff’s third affidavit

77      Household duties cause a flare up of shoulder pain and the plaintiff shares these tasks with her daughter who generally does the heavier work.  Even lighter work causes a flare up.

78      The plaintiff thinks she has only had three right arm operations. She had ulna nerve surgery from Dr Boecksteiner in November 2002. There were further operations in August 2006 and September 2006, not in 2005 as she had previously deposed.

79      There was significant improvement with the right arm with those operations but further problems in June 2007 when the plaintiff wrenched her right arm on a train.  In about 2009, the right arm was giving her significant problems largely because she was overusing it because of her left arm problems.

80      At present, the plaintiff gets some tingling in her right elbow and she gets pain when she overuses it because of her left arm difficulties.

81      Because of right arm problems since childhood, the plaintiff had learnt to rely on her left arm more than one normally would and now its function is reduced, she has to use her right more.

82      On the first day of hearing, before this affidavit was sworn, the plaintiff was cross-examined about her right elbow condition,[19] (having deposed in her first affidavit to no problems since 2005).

[19]T21

83      The plaintiff confirmed that there was no reference in her second affidavit to her right arm problem.[20] 

[20]T24

84      The plaintiff agreed she had problems with her right elbow since the 2002 surgery, prior to the incident.

85      The plaintiff agreed that in January 2003 she was still having numbness in her elbow and further surgery was suggested. The following year, elbow pain was terrible and she wanted further surgery.[21]

[21]T27

86      The plaintiff agreed the 2005 surgery cured some of her right arm pain but she continues to have right arm pain but it is not severe. She saw Anita Boecksteiner in 2005 because of severe pain in her right arm but not severe. The right arm is “sort of normal” but there is limited movement.[22]

[22]T24

87      Whilst the plaintiff agreed that she had deposed that her job with the employer was physically demanding requiring full and free use of both arms, her right arm was not pain free but there were no restrictions. After the osteotomy in August 2006, she had restrictions in her right arm.[23] 

[23]T25

88      The plaintiff disagreed that she had ongoing elbow problems after August 2006. She then agreed that she had never regained full power and she continued to have pins and needles. That had been a continuous since 2003. 

89      The plaintiff agreed that she had reinjured her right elbow in 2007. In the middle of that year, her elbow and shoulder were her most painful conditions.[24]

[24]T31

90      The plaintiff agreed that she never lost the pins and needles despite the repeat ulnar nerve release. [25]

[25]T30

91      The plaintiff thought she only had three elbow operations, not five. The screws were still in the elbow.[26]

[26]T29

92      The plaintiff agreed that she had recurrent numbness in both hands and arms in February 2009 and she was waking up with numbness.  She was referred to a neurologist, Dr Steel.[27]

[27]T31

93      The plaintiff agreed that in March 2009 she was complaining to her doctor of worsening right forearm pain since the time of the incident and she was referred to Dr Tan.  In April 2009, she complained to Dr Tan a screw was sticking out of her right arm. She agreed that she told him she was recovering very well in the left shoulder, doing her own strengthening exercises and the symptoms of discomfort had deteriorated around the elbow.[28]

[28]T33

94      The plaintiff agreed that she was able to move her left shoulder well when she saw Dr Tan on 2 June 2009.  She had good strength in her rotator cuff and only slight trapezius muscle pain. She could not remember the pain in the shoulder as coming from her neck.  She had pain in her shoulder from her neck and still does, pointing to the top of her shoulder. [29]

[29]T33

95      The plaintiff agreed that Dr Tan discharged her in June 2009 in relation to her left shoulder. She agreed that month, she had sufficient right arm pain to seek further investigations.[30]

[30]T34

96      In her third affidavit the plaintiff mentioned pain in both arms which came from her neck, worse on the left.[31] There was no mention of any ongoing discrete right arm problems.

[31]T25

97      In her last affidavit, sworn after the first day of hearing, the plaintiff did refer to this condition, confirming the correct dates of surgery were 2002, August 2006 and September 2006.

98      The surgery significantly improved her arm symptoms but the plaintiff had further problems when she wrenched her arm on a pole on a tram in 2007. This strain gave her problems for a relatively short time.

99      In 2009, the plaintiff’s right arm began giving her significant problems because of overuse when avoiding use of the left and also the presence of the screws.

100     At present, the plaintiff gets some tingling in the right elbow area and pain on overuse.

Other health issues

101     The plaintiff does not enjoy good health.  She continues to suffer depression, exacerbated by her incident pain.  However, she no longer has suicidal thoughts.

102     The plaintiff has also had kidney and bladder problems for many years and the development of a renal abscess in mid 2011 for which she is awaiting surgery. She had a kidney stone removed in 2014.

103     The plaintiff has had very significant problems with her right hip that really started in about 2009.  Initially there was a tumour removed from her left buttock in 2010. Thereafter, the plaintiff continued to have problems that were diagnosed as arthritis and she underwent a total hip replacement in May 2013. Following surgery, she has continued to have quite bad right hip pain for which she needs a walking stick at times and has problems using it because of her left shoulder pain.

104     The plaintiff has continuing lower back problems triggered by the subject incident.  They do not relate to her shoulder.

105     The plaintiff has had numerous other less significant medical issues including at times plantar fasciitis, chest infections, gastric problems and various cysts and lumps in her breasts.  She has had problems with sleep apnoea.  Obviously these issues affect her life.  However, she believes the problems with her left shoulder and arm can be separately analysed.

106     The plaintiff had problems with her ear, for which she saw an ear, nose and throat specialist in 2003. She did not believe she had any significant problem with her neck prior to the accident.

107     Treatment for the shoulder and neck included physiotherapy, shoulder surgery on 12 October 2004; referral to Dr Courtney in 2005 with injections; May 2006 a procedure at several levels of the spine; and continuing the injections to a referral to Dr Tan in mid-2007, who gave an injection and later operated 5 September 2008.

108     After initial good improvement following surgery, the left shoulder problems resurfaced. 

109     In 2010 there was an MRI of the left shoulder and the plaintiff saw Dr Tan again.  When she last saw him in 2014, he referred her for another injection which she did not have as her general practitioner thought she had already had too many.

110     The plaintiff has continuing restricted movement of the left shoulder, particularly with lifting or reaching behind her back, causing her problems dressing. She keeps her hair short because her arm movement is restricted and affects her ability to wash and groom her hair.

111     In her three 2015 affidavits, the plaintiff described problems sleeping because of her left shoulder. For many years, the plaintiff slept on her left side and would like to be able to do so.  Now she cannot because of her left shoulder problem causing too much pain and discomfort.  She cannot sleep on her right because of her right hip problems and she cannot sleep on her back because of sleep apnoea.  So she sleeps in a chair which is not comfortable.  She is often woken by pain including pain in her left arm and shoulder.

112     That pain is generally to the front and back of the point of shoulder and it is there all the time unless the plaintiff takes some major pain killer OxyContin or Endone.  They help to numb the pain.  She uses a heat pack on her shoulder almost every day.

113     In cross-examination when the matter resumed, the plaintiff confirmed that since the last hearing date her solicitors had organised for her to see Dr Tan and Mr Miller.  She had seen her orthopaedic surgeon, Dr Boecksteiner in Melbourne for her spinal condition. There was no report from Dr Boecksteiner.[32] The plaintiff had not been back to Dr Sleeman.

[32]T50

114     The plaintiff thought she had last seen Dr Tan in 2014 when he sent her for an injection.  She did not have it because her general practitioner told her that she had already had so many injections.[33]

[33]T58

115     The plaintiff disagreed with Dr Tan’s comment in 2013 that the left shoulder was a very minor contributor to her pain profile.[34]

[34]T60

116     The plaintiff described her current pain as going down her left shoulder to her fingers and all over her arm, over both the top and also the inside.  She distinguished that pain from her right ulnar nerve pain.[35]  She agreed that she told Dr Tan her left nerve pain was not as bad as previously.

[35]T60

117     Dr Tan told the plaintiff that he would clean the inside of the shoulder in order to have a look at it with a camera.  He did not make an appointment to see her again.[36]

[36]T62

118     The plaintiff confirmed that she had seen both her solicitor and current counsel, Mr Brett, since the last hearing date. She agreed that they talked about what had been said in the court and that she “felt so attacked” by the defendant’s counsel about her unrelated right arm condition.[37]

[37]T51

119     The plaintiff could not really remember what she had discussed with Mr Brett. Her solicitors went through the medical records.[38]  She did not discuss her evidence.[39] She understood the reason for the further affidavit.[40]

[38]T52

[39]T53

[40]T54

120     The plaintiff agreed that in her most recent affidavit she mentioned problems with sleep apnoea, plantar fasciitis, chest infection, gastric problems, cysts and lumps in her breasts that she had not previously deposed to.[41]

[41]T53

121     The plaintiff agreed that she kept her hair short because of restrictions in both arms.  She also had a problem with sleep because of her back.  She could not sleep on her left side because of her shoulder.  She could not sleep on her right because of her hip.  She could sleep on her back.  She also agreed that she had sleep apnoea but denied that it caused her to wake up.  The back pain caused her to wake up.

122     The plaintiff agreed she attended St Vincent’s Hospital’s sleep clinic in 2009 as she was having significant difficulty sleeping.[42]

[42]T62

123     The plaintiff disagreed that she saw Dr Courtney, pain management specialist, for her neck.  The problem was her shoulder for which he had given her an injection in 2005.  She agreed that she reported much improvement in the left shoulder and increased range of movement in December 2006.[43]

[43]T57, corrected by plaintiff’s counsel at T119

124     The plaintiff has also seen a neurologist, Dr Tisch, at St Vincent’s Hospital in Sydney several times.  She last saw him about two years ago.  He was treating her for her neck because her arms went numb.[44]

[44]T59

125     The plaintiff conceded that her right arm prevented her from using it normally “just in a few things.”[45] 

[45]T62

126     The plaintiff agreed that her back is still very painful and has caused her problems since the incident.[46] It had been persistently painful and “sort of” at the same level as her shoulder.  She agreed that her left shoulder and lower back was about the same but then said that at the present moment the shoulder was “killing her” and even taking painkillers in the morning it was still killing her more than the back all the time.[47]

[46]T66

[47]T67

127     The plaintiff’s shoulder at the moment is very painful all the time, night and day.  Painkillers take away her hip and back pain, but the shoulder pain remains.[48]

[48]T68

128     The plaintiff confirmed she had deposed in her second affidavit that her low back had emerged as an equally serious problem.[49] She agreed that she certainly had significant low back problems when she swore her second affidavit.  Her back was still causing her a problem at present having last week had an injection in her back from Dr Boecksteiner.[50]

[49]T69

[50]T70

129     The plaintiff agreed that she told neurosurgeon, Mr Winder, in May 2011 that her low back pain was severe and was not controlled completely by medication.  Further, she had seen a Dr Vasic for pain management in Sydney in January 2012 presenting with low back and bilateral leg pain.

130     The plaintiff agreed that she had told Dr Vasic that her back pain was present all the time and it was as if a hammer and nail were being punched into her back.  That was how the plaintiff felt prior the injection the week before.  She agreed that when she saw Dr Vasic her back pain was ten out of ten and that she got pain from her back into both sides.  She agreed that that was still the case and that the pain was serious.[51]

[51]T72

131     The plaintiff’s back pain prevents her from walking for more than ten minutes.  She has not had any falls lately.  The last was probably last year.  Before that, she had a lot of falls because her legs would just give way and she did not “receive the order from her brain.”[52]

[52]T72

132     The plaintiff agreed that as Dr Vasic noted in 2012, she was able to look after self-care and cleaning.  She was working as a volunteer in a retirement home in an office helping old people.[53] She ceased that role in April this year because she had pneumonia.

[53]T73

133     The plaintiff agreed that all her health problems stopped her going out. -  her hip, shoulder, neck, back and general health but not her lungs, gastric or kidney problems.[54] 

[54]T74

134     The plaintiff had some respiratory tests at St Vincent’s Hospital in June 2010 and had been given a puffer.  She still has a problem with breathlessness because she gets a bit stressed.[55] She no longer uses the puffer.[56]

[55]T75

[56]T84

135     The plaintiff agreed that she had had a plantar fasciitis problem in August 2009 which limited her ability to walk and work.[57]  Once every couple of years, she has to have cortisone injections in her feet.[58]

[57]T75

[58]T76

136     The plaintiff confirmed, as she deposed in her most recent affidavit, that prior to the incident, she had had no significant problems with her neck.  In April 2003, she had pain in her ear, not her neck, and was seen by EMT, Mr Cain.[59]  She denied, as he recorded, that she had had constant pain on the left side of her neck for the last six months.  She described the pain as being in her ear lobe. She could not recall having pain on the right side of her head radiating into her right shoulder.[60] 

[59]T77

[60]T78

137     The plaintiff was taken to a note of an attendance at Western Hospital in October 2001 where a complaint of arthritis of the neck, back and limbs was noted. The plaintiff explained everyone has arthritis. She denied that she had been troubled by that condition in her neck and back for a long time.[61]

[61]T80

138     The plaintiff agreed that she had arthritis in her hip.  She takes painkillers for that and all her other conditions.[62]

[62]T83

139     The plaintiff does not have one permanent general practitioner because Dr Huber is no longer at the clinic.  The plaintiff does not attend Darlinghurst Clinic at the moment.  Dr Sleeman referred the plaintiff to Dr Haylen, a gynaecologist, for urinary problems.[63]

[63]T82

140     The plaintiff agreed that she has pain elsewhere in her body, other than her shoulder, that is present all the time.  She also takes painkilling medication for her hip, neck, lower back.[64]

[64]T56

141     The plaintiff’s current medication regime is OxyContin (20 milligrams) twice a day, Endone two or three times a day prescribed by Dr Huber and by the new general practitioner.[65]  The plaintiff also takes Cipramil and Temazepam to help her sleep.  She takes Nexium for reflux. 

[65]T84

142     The plaintiff has travelled to Chile twice since 2003, spending three months there each time and nursing her older sister with the help of family.  She went to Washington with her daughter for four weeks last year. She has also flown to Coolangatta.

143     The plaintiff is presently not in a relationship.  She had been engaged in 2011 but that relationship finished after a few months.

144     Prior to the incident, the plaintiff used to ride and swim.  She liked painting.  She continues to paint furniture as a hobby.  She never did too much gardening before the accident.  She has a huge garden in which she sometimes does some work, pulling out some weeds.[66]

[66]T87

145     The plaintiff agreed that she resigned her employment to go and live with her daughter in Sydney because her daughter was having problems with drug abuse. She then said that she resigned because her employer was pushing her too hard to return to her job.  She returned to work several times.  She was supposed to be on light duties but they were not given to her so she preferred to resign.  She denied that one of the reasons she wanted to resign was because she was concerned about her daughter and wanted to go and live with her.[67]

[67]T88

146     In re-examination, the plaintiff said she left her work because she felt so pressed by WorkCover and she was feeling like she was treated like a criminal and had not done anything wrong.  She was not able to do the work she was asked to do.[68]

[68]T98

147     The plaintiff undertook a medical reception course at TAFE following which she did some voluntary work for a physiotherapist who was treating her. She worked unpaid for two or three months and stopped because the physiotherapist moved.[69]

[69]T97

148     The plaintiff also did a course to try and improve her English.  The last course she thought she did was a couple of years ago to do pathology work in a morgue but she could not finish the course.

149     Initially, the plaintiff said she had not done any cleaning work since the incident. She then said she had helped a friend clean for quite a few months in 2011 or 2102.[70] 

[70]T89

150     The plaintiff is able to cook. She can carry shopping in both hands.  She does not have a problem with her handbag over her left shoulder because it is very light.[71]

[71]T90

Surveillance

151     There was surveillance of the plaintiff between February 2010 and March 2011 of approximately 57 hours. She was seen during that period for about 23 minutes. 

152     In the film of 10 March 2011 (3 minutes, 36 seconds), the plaintiff was shown carrying a Holland blind in her right arm and one over her left shoulder.  She thought the blind weighed probably two kilograms. It was not heavy and carrying it did not cause pain.[72]

[72]T96

153     The plaintiff could do anything with her medication but had problems later.[73]

[73]T91

154     On 14 March 2015, the plaintiff was collected by a friend to go to the house of another friend’s house to help her clean because she was in a very bad state.[74]

[74]T91

155     The plaintiff explained that she went into an office to collect a key because her friend did not speak English.  The plaintiff was there to pick up the key and help her do the dusting.  The plaintiff put some washing in the machine and did some dishes.  She agreed that she was there to help clean and was at that house for two and a half hours.[75]

[75]T92

156     Later that same day, the plaintiff helped a different friend do cleaning at a second location.  The plaintiff probably cooked and maybe did some washing, cleaned the bathroom, did some mopping and not much vacuuming.  Mopping and bathroom cleaning were all things she could do but she could not them as a job.[76]

[76]T93

157     In re-examination, the plaintiff confirmed she knew what was involved as a commercial cleaner and she would not be able to do those sorts of jobs.[77]  When helping her friend, no one was pressing her to go fast or pushing her.  The work she did for her friends did not put any strain on her left shoulder.  She used mainly her right arm.[78]

[77]T95

[78]T96

158     If she took painkillers all day, every day, the plaintiff would probably be able to do cleaning work. When she takes OxyContin and it wears off, she is like “nothing” and the pain is obviously worse and she has to rest.[79]

[79]T96

The Plaintiff’s medical evidence

Treaters

159     Dr Abduel in Keilor Downs saw the plaintiff in August 2003 with pain affecting the left side of the neck radiating to the shoulder, chest and upper back following the incident three week earlier

160     Dr Abduel noted the plaintiff returned to modified duties on 5 September 2003. She was last seen on 13 September 2003 still complaining of neck and left shoulder pain and she was referred for specialist assessment.

161     Dr Goldberg, shoulder surgeon first saw the plaintiff in September 2004 on referral from Dr El Sayed. He diagnosed a traumatic impingement lesion of the left shoulder and also felt the plaintiff had cervical spondylosis.

162     Dr Goldberg performed an arthroscopic subacromial decompression on 19 October 2004. The plaintiff was last seen on 2 February 2005 when she was progressing well and had achieved near full range of movement and good power. He thought the prognosis should be good but noted even with surgery, patients are often left with a mild disability with heavy and repetitive lifting. He then thought the plaintiff was fit for light duties.

163     The plaintiff underwent cervical facet blocks at the Western Hospital in 2005. In May 2006, she had radio frequency denervation on the left side.

164     In July 2006, Dr Courtney injected trigger points in the plaintiff’s left trapezius and levator scapula. He saw her again in October. He noted the plaintiff’s left shoulder pain radiated to the elbow and occasionally the hand. Dr Courtney against injected the plaintiff’s left shoulder, following which she had a significantly increased range of movement.

165     On review in December 2006, Dr Courtney noted the plaintiff was much improved in the left shoulder with increased range of movement but she still had reduced movement of the neck.  He injected the trigger points.  He requested a right stellate ganglion block to see whether it would help the plaintiff’s persisting shoulder pain.

166     In September 2011 Dr Huber reported to the Conciliation Service. He advised that the plaintiff had ongoing low back and neck pain since the incident. Since June 2007, he had seen her on 65 occasions mainly related to the ongoing and worsening lower back/neck and left arm pain.

167     Given the significant instability at L4/5 and now increasing pain especially at night, he thought the plaintiff would benefit from surgical correction of the L4/5 instability.

168     The most recent report from Dr Huber, was a referral to Dr Tisch in February 2013. 

169     Dr Huber advised that the plaintiff presented with the recent onset of frequent falls on the background of cervical spine degenerative changes and changes at the lumbar spine.  He noted that the plaintiff was waiting for right hip surgery. 

170     Dr Sleeman’s only report was a referral of the plaintiff to Dr Haylen on 25 February 2015.  The plaintiff explained that that practitioner is a gynaecologist to whom the plaintiff was referred for urgency problems.

171     Dr Tan has provided a number of reports. 

172     In June 2007, Dr Tan wrote to Dr Huber noting the plaintiff had difficult problems in multiple areas of her body which she related to the incident.  On repeated questioning, she was clear her right elbow and left shoulder were, by far, the most painful problems.  He noted the plaintiff’s left shoulder had clearly been a problem from the outset.  She reported little relief from the surgery and had clear impingement with discomfort with rotator cuff testing when seen in June 2007.  He thought it worth organising another MRI scan.

173     Dr Tan was very concerned about the plaintiff’s spine and back and thought it worth her seeing a neurologist for further studies on her limb weakness.

174     In February 2008, Dr Tan noted the plaintiff had gone back for reassessment as her left shoulder continue to cause discomfort.

175     In March 2008, the left shoulder continued to be a problem and Dr Tan gave the plaintiff a subacromial injection with good relief.  He then thought that would enable the plaintiff to appreciate the limited goals of shoulder surgery.

176     In May 2008, Dr Tan recommended the plaintiff proceed to arthroscopy.

177     In May 2010, Dr Huber asked Dr Tan to reassess the plaintiff whom he noted had had a recurrence of the same previous left shoulder pain over the previous six months with no injury.

178     Dr Tan suggested an MRI scan which the plaintiff undertook and went she returned to see him in August that year.  He thought it was essentially good news that the repair was sound and there were no problems with the anchor or sutures.  He noted the bad news was that tendons continued to deteriorate anterior and posterior to the tear; there was degeneration of the tendon and partial thickness tears but less than 50 per cent.  He thought the rotator cuff repair was sound but the tendon was still degenerating. 

179     Dr Tan thought the tendon may become more degenerate as time went on and there will be periods of discomfort and other periods of relative pain free function.  He thought the plaintiff needed to learn to manage things.  He counselled against further surgery and attempted to reassure her that the repaired tendon had healed.  He noted the plaintiff’s neck and back were still a problem as was the right hip which required surgery.  The plaintiff had requested a referral to a pain clinic to help her manage her pain.

180     Dr Tan reported in July 2015 that he had last seen the plaintiff on 12 June 2013, the previous attendance having been in 2010.  He was asked to assess the plaintiff’s left shoulder but noted she had a lot of pain shooting down her elbow and numbness and loss of power in her hand.  Whilst there was some minor irritation in her rotator cuff, he concluded that most of her problems seemed to be arising from her neck and cervical spine.  Hence, she was seeing Dr Tisch having further investigations. 

181     Accordingly, Dr Tan gave the plaintiff a request form for a subacromial injection to the shoulder. He felt the shoulder was a very minor contribution to the pain profile. He noted he had not seen her since and hence had very little to add to the diagnosis.

182     On 23 July 2015, Dr Tan wrote to the plaintiff’s solicitors thanking them for arranging an appointment.

183     Dr Tan advised that the plaintiff does have subacromial inflammation consistent with rotator cuff irritation and bursitis.  She had a deep ache in the joint which may indeed be the labral tear demonstrated on MRI scan.  He noted her nerve pain was not as bad as it was but it was still a significant issue. 

184     Dr Tan agreed with Mr Schofield’s recommendations for the plaintiff’s shoulder.  He noted her tendon repair had healed but she was still getting bursitis symptoms and irritation of the cuff and they indeed required either an injection or an arthroscopic debridement.  That ideally would not be done until she had had her neck addressed as it could change the course of her recovery.  He reassured the plaintiff her shoulder was still an ongoing part of her problem and may indeed need further procedures following the cervical spine decompression.

Medico-legal evidence

185     Richard Crane, general surgeon, examined the plaintiff on behalf of the defendant in August 2003 in relation to left shoulder discomfort (pre surgery).  He noted that she had had continuous significant pain in her left shoulder since the incident.  He had diagnosed a partial tear of the left supraspinatus tendon with associated symptoms of subacromial impingement.

186     Mr Crane thought pain and limited shoulder movements would preclude the plaintiff returning to pre injury duties.  He believed it was reasonable for the insurer to accept liability for the surgery.

187     Mr Robert Carey, orthopaedic surgeon, carried out an impairment assessment in July 2006 on behalf of the defendant.

188     The plaintiff then complained of pain on the left side of her face and head. She had pain in the left and posterior aspects of the neck, left shoulder and the whole of her arm, the left side of the front of her chest and mid to lower thoracic spine in the midline.  All pain was constant.  She described electric like shock symptoms from the left elbow to the forearm.

189     The plaintiff indicated tenderness and pain in the shoulder.

190     Mr Carey thought it probable the plaintiff sustained a strain of the left shoulder, neck and upper back as a result of the incident.  He thought the strain injury to the left shoulder had resulted in injury to the rotator cuff and development of an impingement syndrome for which she had had surgery.

191     The plaintiff was examined on the defendant’s behalf by Professor Mendelson, psychiatrist, in April 2011.

192     The plaintiff advised that in 1997 she had, what she termed a little depression. She was treated by a psychiatrist in Sydney and took antidepressants, namely Effexor, for about six months.

193     The plaintiff described her pain as 24/7.  She had constant lower back and right leg pain and constant left shoulder pain.  Her neck was very sore all the time.  She complained of memory and concentration problems.

194     In Professor Mendelson’s opinion, there was no indication the plaintiff had any type of mental illness.  She appeared to be appropriately concerned about her various physical problems and if she did have any specific emotional symptoms, they were well controlled by medication.  He thought there was no indication she had any loss of work capacity due to any psychiatric illness or impairment. He thought that the plaintiff was not precluded by any psychiatric factors from undertaking work as a pathology technician.

195     Dr Weissman, psychiatrist, examined the plaintiff in March 2015.

196     The plaintiff told Dr Weissman she continued to experience left shoulder pain, left scapular pain, left sided neck pain, left scalp pain with headache and left sided facial pain.  Her right elbow had improved significantly.  Her right hip was terrible.  She had pain 24/7 in the right hip and radiating to her right lower back and all the way down her right lower extremity to her foot.  She sometimes had pins and needles over the lateral right thigh and in her right foot.

197     Dr Weissman thought the plaintiff appeared pain focussed with elevated health concerns noting she did have identifiable organic pathology in her non dominant left shoulder and different parts of her spine, hip and also her right elbow.  He thought, on psychiatric grounds alone, the plaintiff would be totally incapacitated for all employment.

198     Dr Weissman noted the plaintiff’s concentration and short term memory appeared to be very problematic.

199     Dr Weissman thought the plaintiff was suffering from at least a moderate, if not moderately severe, mixed reactive depressive and anxiety syndrome with in particular depressed mood, emotional distress, anxiety, feelings of hopelessness, cognitive impairments, subjective and objective, loss of self-esteem and confidence, anhedonia and intermittent passive suicidal ideation. 

200     Mr Stan Schofield, orthopaedic surgeon, examined the plaintiff in March 2015.

201     The plaintiff then complained of continual neck pain causing her head to tilt to the right.  Left sided neck pain radiated to the left side of the chest and down the left arm to the fingers.  Her left shoulder was also painful despite two operations.  The only symptoms in her right arm were in the ulnar fingers.  She also had low back pain which occurred since the injury and in addition she had numbness and tingling in the sole of her right foot.

202     On examination, both shoulders had a good range of movement.

203     Before providing further opinion as to future management and employability, Mr Schofield thought the plaintiff would require x‑rays of her cervical, lumbar spine, pelvis and both hips and also her right elbow.  She also needed an MRI scan of the cervical and lumbar spine, an ultrasound of the left shoulder and nerve conduction studies of both hands.  Further, she needed x‑rays including erect functional views and an MRI scan of the lumbar spine.

204     Mr Schofield considered that further operative procedures were required for the cervical and lumbar spine and the right hip.

205     Mr Schofield thought the left shoulder was likely to require further conservative treatment including cortisone injections.  There remained a possibility if those treatments did not eliminate the plaintiff’s stiffness and pain she should be referred for further surgery.  He thought surgery for her cervical spine, right hip and decompression of the lumbar spine was required.

206     Russell Miller, orthopaedic surgeon, initially examined the plaintiff in December 2013 and re-examined her in July this year.

207     In 2013, the plaintiff complained of pain and discomfort in her neck, low back and left shoulder. Her shoulder symptoms were worse with repetitive activities, physical work and overhead work. There had been some improvement after surgery.

208     Mr Miller noted the plaintiff had significant ongoing symptoms and had evidence of rotator cuff dysfunction and capsulitis. He thought the prognosis was only fair.

209     Mr Miller considered further surgery may be required for the right hip and lumbar and cervical spine.

210     On re-examination, the plaintiff reported neck pain and discomfort with associated headaches, low back pain and discomfort, pain and discomfort in the left shoulder and anxiety and depression. 

211     There was diffuse tenderness and minor deltoid muscle wasting. There was restricted movement and some irritability during shoulder movements.

212     Mr Miller then thought the plaintiff had significant ongoing left shoulder symptoms and had evidence of rotator cuff dysfunction and capsulitis. The prognosis for the left shoulder was only fair.  He thought the plaintiff was unlikely to benefit from further surgery to the left shoulder.

213     In his evaluation of the plaintiff’s lifestyle, Mr Miller referred to general problems with mobility, personal relationships, home and work activities and leisure activities but did not particularise what injury was affecting what activity, his report covering her cervical spine, left shoulder, lumbar spine and right hip and leaving mental state assessment for someone else.

The Defendant’s medical evidence

214     The plaintiff attended Western General on numerous occasions between July 2001 and June 2005 in relation to right arm and elbow problems.

215     When seen in November 2003, the plaintiff advised she had wrenched her left arm in in the incident and had pain in her neck and chest radiating to the scapula and fingers.  She had an elbow injection.

216     In March 2004, the ulna nerve was not better and it was noted the plaintiff also had symptoms consistent with carpal tunnel syndrome in both hands.

217     In March 2005 the plaintiff said her ulna nerve was terrible and she wanted the corrective osteotomy. 

218     The plaintiff attended the pain management clinic on 9 June 2005.  She reported pain and decreased movement in both arms and following the surgery in 2002 it was slightly worse.  She described headache, neck and left arm pain.  Facet blocks were recommended.

219     The plaintiff then attended on 26 October 2005, when she complained of still being in pain and wanted the deformity corrected, and a re-release of the ulna nerve at the same time.

220     A left-sided facet joint injection was performed that helped with the plaintiff’s headache when she attended on 14 December 2005.

221     The plaintiff was seen at the pain management unit on 22 December 2005.  She advised her left shoulder had improved for two days, then returned to its usual severity.  She had had significant improvement of her headache with both severity and frequency.  Follow up was continued.

222     Dr Phan, from Hallam, referred the plaintiff to Ms O’Kelly, psychologist, in May 2006.  It was noted in that referral that the plaintiff had depression and anxiety which had been exacerbated, left shoulder and neck injury and chronic pain.  Her main problem at that time was anxiety and panic attacks, especially at night.

223     Dr Phan wrote to Dr Courtney in October 2006 thanking him for the ongoing management of the plaintiff’s chronic neck and headache for which she was currently on Mobic, Oxycodone and Mersyndol Forte. 

224     In February 2009, Dr Tan wrote to Dr Huber, having seen the plaintiff in relation to her left shoulder.  He noted that she had recovered exceptionally well at five months and she had virtual full range and improving strength.  The plaintiff had mentioned her neck pain continued to be a problem and he advised she now seek the advice of Dr Steel, to gain a surgical opinion.

225     On 2 April 2009 the plaintiff was reviewed by Dr Tan for her right elbow.  He noted her left shoulder was recovering well and she was doing her own strengthening exercises.  The plaintiff reported that in the last year, her symptoms of discomfort about the elbow had deteriorated, and her altered sensation and the ulna nerve distribution of the hand had been persistent since 2005.

226     Dr Tan asked the plaintiff to see Professor Tonkin as the best person to undertake further ulna nerve exploration.

227     On 2 June 2009, the plaintiff was reviewed by Dr Tan for her final visit regarding her left shoulder.  She was nine months’ post surgery.  She had excellent range and good strength in her rotator cuff and only slight pain related to her trapezial musculature, with a dragging sensation in her neck.  There was no pain related to the left shoulder rotator cuff unless she pushed abduction.  She was due to see Professor Tonkin for her right elbow.

228     Dr Tan discharged the plaintiff from his care and asked her to return if any further problems arose.  He reminded her to respect the repair and avoid any overhead, prolonged exertion or lifting for the durability of her repair.

229     Dr Steel, neurosurgeon, wrote to Dr Huber in June 2009 thanking him for referral of the plaintiff.  The plaintiff complained of continually present pain arising from the neck down the left arm involving all the fingers.  He noted she had undergone successful shoulder surgery by Dr Tan and she had recovered fully from that.

230     Dr Steel advised Dr Huber that he would like the plaintiff to have an MRI scan and noted that, giving the chronicity of the pain, it was likely her neck would require surgery. 

231     Dr Huber referred the plaintiff to Dr Rooney, orthopaedic surgeon, in October 2009 for right hip and right hind foot pain.  He diagnosed bilateral plantar fasciitis affecting the right hind foot more so than on the left, right trochanteric bursitis and pain likely to be early osteoarthritis.  He thought the plaintiff would benefit from an injection into her hip.

232     In December 2009, Dr Rooney wrote to Dr Huber about abnormalities found on the MRI scan of the right hip.  He thought the plaintiff needed to see Ian Woodgate, who specialised in musculoskeletal tumour pathology.  He noted the plaintiff was in constant pain day and night.

233     Dr Khan, consultant psychiatrist, saw the plaintiff in October 2009 on referral from Dr Huber because of major depression.  She told him since the incident she had experienced multiple pains in her body and suffered from aches and pains on an ongoing basis. There was left shoulder and right elbow pain, preventing her from doing anything in a normal fashion.  He diagnosed major depression. 

234     The plaintiff was referred to Adam Finch at St Vincent’s Mental Health for a psychological assessment in June 2010. 

235     He thought the plaintiff presented with a six year history of Panic Disorder with Agoraphobia and she had Comorbid Social Anxiety Disorder and significant secondary depressive symptoms.  A Cognitive Behavioural Therapy Plan was proposed. 

236     Mr Finch noted the plaintiff’s anxiety improved significantly with the behavioural therapy over the five months that he saw her.

237     In March 2011, Dr Huber referred the plaintiff to Dr Winder, neurosurgeon.  He noted she presented with worsening lower back pain with significant sciatica and the development of progressive spinal canal stenosis.

238     Dr Winder reported in May 2011 after the plaintiff had had a lumbar MRI scan.  He explained to her that a fusion at L4-5 may be an option but he could not predict the outcome because she was a chronic pain patient with otherwise unremarkable imaging and limited results from previous injections.

239     Professor Woodgate wrote to Xchanging in June 2011, stating he had seen the plaintiff the month before regarding her lumbar spine.  She had had a series of L5-S1 facet joint injections and the lumbar discopathy, but they were of little benefit.  He had advised the plaintiff she required an L4-S1 decompression infusion and therefore requested approval for that surgery.

240     Professor Woodgate advised Xchanging on 7 February 2014 that the plaintiff required C4-C6 anterior cervical discectomy and fusion and made a request for funding of that surgery.

241     Dr Vasic, specialist pain management practitioner at South Eastern Sydney Local Health reviewed the plaintiff in January 2012

242     The plaintiff then reported her worst pain was present in the low back all the time.  It was as if a hammer and nail were being punched into her back.  She described her pain as 10/10 with the reduction to 5/10 with OxyContin.

243     Dr Vasic noted the plaintiff reported she had had two left shoulder operations and had problems with her ulnar nerve.  Her right side did not appear to be causing any problems. 

244     There was no reference in that extensive report to any left shoulder problems, save for a jarring injury in the incident and the surgery.

245     Dr Parkinson, neurosurgeon at St Vincent’s in Sydney, saw the plaintiff in March 2012. He thought she had L4-5 discogenic pain exacerbated by the incident. Her pain continued since then.  He thought there might be further deterioration of the lumbar spine.

246     The plaintiff’s presentation was predominantly pain in the lower back radiating to the buttocks bilaterally and particularly into the right posterior buttock and lower down the leg.  The pain had been quite severe and often accompanied by pain in the left buttock. There was some right side weakness and paresthesia.  It was noted the plaintiff also had severe left shoulder pain.

247     Dr Parkinson organised further investigations of the plaintiff’s lumbar spine and recommended conservative treatment before surgery was discussed as a realistic proposition. 

248     Angela Keating, psychologist at the Pain management Unit, St George Hospital, saw the plaintiff on referral from Dr Huber in March 2012.

249     The plaintiff presented to the clinic reporting pain in the left side of her head and neck, in her left shoulder and in the outer part of her left upper limb.  She also reported pain in the right side of her lumbar spine, her right buttock and she said she had pain in her right groin.  The plaintiff described the pain in her neck and shoulder as a constant ache which she said turned to a stabbing type of pain.  It is always at a maximum of ten out of ten.

250     The plaintiff attended the clinic seeking advice and assistance about management of her persistent pain.  It was suggested she be involved an ACTIVATE Pain Management Program.

Medico-legal evidence

251     Brian Davie, orthopaedic surgeon, saw the plaintiff in February 2004.  He thought the plaintiff had sustained a strain to the left shoulder and neck and that was consistent with the incident.  He thought she was not totally and permanently disabled for work and she had a capacity to return to work with half shifts on alternate days, gradually building up to normal duties. 

252     In April 2006, Mr Davie advised Alliance that it would be reasonable for the plaintiff to have facet joint block injections.

253     Dr Stern, psychiatrist, saw the plaintiff in mid-2006. She then complained of constant pain in the left shoulder radiating down the arm and up to the neck and left shoulder blade, recurrent dizziness, depression, anger and anxiety, disturbed sleep with nightmares, lack of energy and reduced memory and concentration.

254     In terms of psychiatric history, the plaintiff said that in 1997 she discovered her 16 year old daughter was using cocaine. The plaintiff became depressed and was prescribed Effexor for six months by her general practitioner and had no psychiatric treatment.

255     Dr Stern then thought, from a psychiatric aspect alone, the plaintiff was fit for work.  He considered she was suffering from an adjustment disorder with mixed anxiety and depressed mood.

256     Dr Entwisle, psychiatrist, examined the plaintiff in late 2006 and re-examined her in March 2010.

257     At the most recent examination, the plaintiff described pain in her left shoulder, neck and headaches. She also had hip pain which she described as “really, really bad, it’s a big one”.  The plaintiff had trouble walking.

258     Dr Entwisle diagnosed symptoms of a recurrent depressive condition.  He thought the plaintiff had a limited capacity for work.

259     Mr Isbister, orthopaedic surgeon, examined the plaintiff in June 2008.

260     The plaintiff then complained of left shoulder pain with radiation to the axilla and also to her shoulder blade posteriorly.  She complained of restricted shoulder movement and some numbness in her arm, occasional back pain and left knee weakness, and also anxiety and depression.  Her right arm had been further aggravated by excessive use.

261     Mr Isbister believed the proposal by Dr Tan for further surgery was appropriate.  He thought that would improve the plaintiff’s range of movement and relieve pain and she may be able to return to clerical duties after four months.

262     Mr Isbister diagnosed rotator cuff tear and impingement on the rotator cuff on the acromion, combined with interscapular scar tissue.

263     On 16 April 2014, the Medical Panel found as follows:

(1)     The plaintiff is suffering from degenerative cervical and lumbar spondylosis but these conditions are now not relevant to the alleged injuries.  It was the Panel’s opinion the plaintiff was suffering from an aggravation of a pre-existing depressive disorder and from a chronic pain disorder relevant to the alleged injuries of the cervical and lumbar spine.

(2)     The Panel thought the plaintiff was suffering from degenerative lumbar spondylosis which now is not relevant to the alleged injury.  It made no findings as to whether surgery by way of L4 to S1 decompression and fusion was appropriate for the lumbar spine injury.  It made no findings as to whether surgery by way of C4 to C6 anterior cervical discectomy and fusion was appropriate for the alleged injury to the neck and cervical spine.

264     The Panel agreed with the diagnosis of the previously constituted Panel that there was now no persisting injury relevant to the cervical and thoracic injuries that occurred on that said date.

265     The Panel further concluded that the plaintiff is suffering from an aggravation of a pre-existing depressive disorder which has arisen as a consequence of the now resolved exacerbation of underlying degenerative cervical and lumbar spondylosis and to unrelated matters (the relationship with her daughter and any unrelated physical conditions) and from a chronic pain disorder associated with general medical condition and psychological factors (which include vulnerable personality traits).

266     The Panel noted that this diagnosis was consistent with the diagnosis of the treating psychiatrist, Dr Hogan, in January 2006; Dr Khan, September 2010; and treating psychologist, Dr O’Kelly.  There was a different diagnosis in typology of mood disorder from the previous diagnosis of the earlier Panel who diagnosed an adjustment disorder with anxious and depressed mood.  It was noted the previous Panel did not know about the earlier treatment with anti-depressants and in light of that information, the current Panel thought the diagnosis of aggravation of her pre-existing Depressive Disorder was appropriate.

267     Dr Kevin Fraser, rheumatologist, saw the plaintiff on 19 May 2015, having previously seen her in 2010 and 2011.

268     The plaintiff reported ongoing low back pain and right sciatica. She continued to complain of neck and left shoulder girdle pain and she advised an MRI had shown a new tear in the left shoulder.

269     Dr Fraser noted a recent MRI of the cervical spine confirmed multi-level mild degenerative changes. An MRI of the left shoulder showed acromioclavicular joint osteoarthritis and a minimal subacromial tear and a minimal subacromial bursal effusion. The rotator cuff was intact.

270     On examination, only abduction of the left shoulder was restricted. There was a mild loss of lumbar flexion. There appeared again to be some overreaction on examination.

271     Dr Fraser noted his previous conclusions were unchanged. 

272     Dr Fraser thought the plaintiff had done quite well following the left rotator cuff repair and in his view, her ongoing symptoms were out of proportion to the clinical and radiological findings, suggesting that non organic factors of a psychological nature were involved. 

273     Dr Fraser noted, however, probably there was some residual incapacity as a result of the work related injury to the left shoulder, such that the plaintiff remained unfit for work requiring lifting in excess of 5 kilograms or any overhead rapidly repetitive or forceful use of the left arm.  He thought that she was fit, however, for any alternative work for which she was otherwise suited. 

274     Dr Fraser did not think there had been any work related injury to the cervical spine. He considered the changes were quite consistent with age and in his opinion, the plaintiff’s condition was the same as it would have been regardless of the work related injury.  He made similar comments in relation to the lumbar spine and did not think there was anything to suggest that the plaintiff sustained any more than a soft tissue strain in that region and obviously any such putative injury had long since resolved.

Overview

275     It is not in dispute that the plaintiff suffered an injury to her left shoulder in the incident. That injury involved the rotator cuff and the development of an impingement syndrome, confirmed on MRI, following which the plaintiff underwent surgery.

276     The plaintiff’s claim for compensation dated 5 September 2003 for “left shoulder and upper back strain/ left lower back strain” was accepted. Her Section 98 claim lodged in May 2006 was accepted in relation to aggravation of degenerative change – cervical spine, thoracic spine, left shoulder and psychiatric condition.

277     In written submissions, counsel for the defendant submitted however that the evidence at its highest supports a finding that the shoulder injury was probably a tear of the left supraspinatus tendon, in the setting of pre-existing degenerative changes.

278     It was submitted on the evidence, following surgical repair, the plaintiff has recovered well from the injury and any present consequences are not serious. Further, given the multiple unrelated medical conditions the plaintiff presently suffers, the principles in Peak Engineering & Anor v McKenzie[80] are invoked.

[80][2014] VSCA 67

279     In that case, Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

280     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[81]

[81](Supra) at paragraph [1]

281     Maxwell P found that the trial judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the knee injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identify them as “serious”.[82]

[82](Supra) at paragraph [2]

282     Counsel for the defendant submitted that as the plaintiff suffers from a “constellation” of medical conditions which cause her pain and suffering consequences, in accordance with Peak Engineering, it is necessary for the Court to make findings about all of the pain and suffering consequences which are operative as at the date of hearing. 

283     It was submitted despite the Court giving the plaintiff an additional opportunity to address the pain and suffering consequences which are:

(a)   referrable to the left upper limb impairment; and

(b)   referrable to each of the other conditions that she suffers from,

the plaintiff has failed to do so, and it is an impossible task on the evidence for the Court to undertake.

284     Further, even if the Court is able to identify each of the pain and suffering consequences and isolate those referrable to the left upper limb, it was submitted that the pain and suffering consequences are not serious and do not satisfy the statutory test of being more than significant or marked.

285     In response, counsel for the plaintiff submitted that Peak Engineering does not mean that a plaintiff who has suffered a number of other disabling injuries cannot establish that she has a serious injury.  Such a conclusion would be absurd and manifestly unjust. 

286     It was submitted the effect of Peak Engineering is to require this Court to-

“… decide whether the consequences of the original injury are more than significant or marked, and … at least very considerable.  For that purpose, it is necessary – so far as the evidence permits – to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury,”[83]

[83]Per Maxwell P at paragraph [3]

287     In Peak Engineering, it was said that:[84]

“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial.”

[84]At paragraph [24]

288     However, it was also said that:[85]

“It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no “disentangling” is necessary.”

[85]At paragraph [25]

289     It was submitted in the present case, it is clear that the plaintiff has a number of disabling conditions which are (at least for the purposes of this application) unrelated.

290     In my view, however, this is not a case where the consequences of the shoulder injury are so clearly separate and distinct from the consequences of the other non-incident related conditions that no disentangling is necessary.[86]

[86]T120

Credit

291     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[87]

“… 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.”

[87](Supra) at paragraph [12]

292     Counsel for the plaintiff submitted the plaintiff should be generally accepted as a witness of credit. Noting she was challenged about her failure to disclose other health conditions in her various affidavits, particularly her initial affidavit, it was submitted that it was wrongly suggested to her that the initial affidavit should have disclosed what was her state of health prior to the incident, there being no such requirement in the Ministerial Directions. [88]

[88]T10, L18

293     It was submitted the plaintiff’s failure to give accurate evidence regarding her pre-injury history of depression is adequately explained in her affidavit of 12 June 2015. Further, psychiatrists such as Dr Weissmann have noted the plaintiff has memory problems.

294     Counsel for the defendant raised a number of issues in relation to which it was submitted the plaintiff was not a frank and candid witness.

295     In summary, the plaintiff’s initial affidavit evidence as to her pre injury psychiatric state clearly understated the true position as became apparent in cross examination of significant treatment, suicide attempts and the need for anti-depressant medication on an ongoing basis.

296     It was submitted some of the plaintiff’s evidence was contradictory and although at the time of the hearing she did not rely on her psychiatric condition, she did so at the time she swore each of the affidavits and paragraph (c) was only abandoned very close to trial.

297     The plaintiff was experiencing ongoing right arm problems at the time of the incident although these problems were not mentioned in her early affidavits.

298     The plaintiff deposed to ongoing shoulder problems post-surgery whereas in cross examination, she conceded her condition had actually improved significantly when seen by Dr Tan in 2009.

299     It was submitted the plaintiff paints a picture of significant disability and suggests she is unable to work because of her left shoulder injury. Initially she said she had done no cleaning work since the incident. She then admitted she had done cleaning work for a friend over a number of months in 2011 or 2012. It was submitted this situation was inconsistent with the plaintiff’s claims that she has difficulties with housework and relies heavily on her daughter for assistance.

300     Further, in re-examination, the plaintiff  said the cleaning work she did with her friend did not put any strain on her shoulder, yet she deposed in her affidavit she could not do those type of domestic duties because of shoulder pain.

301     In terms of her alleged incapacity for employment, the plaintiff has also done volunteer work at an aged facility until April this year when she got pneumonia. She had worked on a voluntary basis as a receptionist at a physiotherapy practice for a couple of months having done a course in this area which she did not mention in her affidavits.

302     It was submitted the plaintiff’s evidence as to her use of painkillers and their effect on her pain was contradictory. Before seeing the surveillance film, she maintained that medication helped her hip and spinal pain but did not control her left shoulder pain. However, she later said that when she takes medication she can do anything.[89]

[89]T96

303     It was submitted the plaintiff painted a picture of very little pre injury ill health and tried to visit all of her symptoms on the shoulder injury in the incident.

304     The plaintiff’s first affidavit did not mention her back or right hip problem or numerous other health issues, including plantar fasciitis, chest infections, gastric problems, various cysts and lumps and sleep apnoea which were later deposed to.

305     Further, there was no mention in the plaintiff’s April 2015 affidavit of right arm pain, leg weakness causing her to fall and removal of a kidney stone in 2014.[90]

[90]T83

306     It was submitted the plaintiff had a selective memory, seeming to able to clearly recall events many years ago when it suited her and unable to recall more recent events like the conference with her counsel after the previous hearing day, yet she was able to remember the location of pain in relation to an ear problem in 2003.

307     In my view, these criticisms of the plaintiff’s evidence are valid. I found her to be an unreliable witness, both in her affidavit and viva voce evidence. 

308     The plaintiff attributed most of her pain and various ongoing restrictions to her left shoulder, whilst at the same time reluctantly acknowledging that her ongoing back problems were of such significance that she described them before an injection to her back the week prior to hearing as like a hammer and nail being punched into her back.

309     I do not accept the plaintiff’s evidence that painkillers are effective for her unrelated conditions yet do not assist her in relation to her shoulder complaints.

310     Further, the plaintiff’s evidence demonstrated a tendency to exaggerate the level and extent of her left shoulder symptoms and the extent of her disability compared to the situation described by her at various times to her treaters.[91]  

[91]Examination with Dr Tan in June 2009

311     In her viva voce evidence, the plaintiff played down the seriousness of her spinal and hip problems yet earlier this year she told both Mr Miller and Mr Schofield she had ongoing significant problems due to these conditions and she described her hip pain to Dr Weissmann as terrible and “24/7.”

312     The plaintiff also understated her ongoing right arm problems in her first affidavit, deposing following surgery in 2005 she did not experience severe right arm pain when clearly this was not the case, undergoing further surgery after the incident and seeking further specialist medical treatment in 2009.

313     Finally, the plaintiff’s evidence lacks corroboration from any lay witnesses. Significantly, there is no affidavit from her daughter with whom she has lived on an almost continuous basis for the last ten years.

Consequences of the shoulder impairment

314     The plaintiff’s first affidavit, save for describing pain and restricted movement, failed to identify the consequences referrable to the shoulder impairment.

315     In her first affidavit, the plaintiff deposed that the effects of “the injury” involved pain and restrictive movement in the left shoulder, pain in her neck and face and headaches and the psychiatric condition.  She was in receipt of a disability pension in respect of the effects of “the injury.” 

316     The plaintiff deposed because of “the injury” she had been unable to perform any work save for her failed attempt.  She said because of “the injury” she relied heavily on her daughter. 

317     The second affidavit contained references essentially to pain and restricted movement in the left shoulder and ongoing significant spinal problems. Sleeping difficulties were described as waking every few hours through pain particularly in her lower back, neck and left shoulder.

318     Ultimately, in her third and fourth affidavits when given the opportunity to focus on her left shoulder complaints, the plaintiff provided more detail. In the third affidavit, for the first time, the shoulder became her main injury and the plaintiff attempted to link that injury to ceasing work in 2003.

319     However, as her counsel conceded, the plaintiff ceased work because of her “injuries” and the left shoulder is not the sole reason she is presently unable to work.[92]

[92]T133, see first affidavit

320     Given the plaintiff’s inconsistent evidence in this regard, I am not satisfied she ceased employment at that time because of injury, but rather because she chose to go to Sydney to look after her daughter.  At that time, she had been certified fit for modified duties.

321     Since then, the plaintiff has undertaken a number of TAFE courses including medical receptionist and worked on a voluntary basis in a physiotherapist’s rooms, ceasing only because he moved premises. 

322     Further, the plaintiff worked as a volunteer with old people for some time and stopped only earlier this year because of pneumonia.

323     In her third and fourth affidavits, the plaintiff again mentioned problems with sleep due to left shoulder pain. However as she then noted, she also has difficulty sleeping due to her back and hip pain. She also had problems with sleep apnoea in the past.

324     I do not accept the plaintiff is significantly restricted by her left shoulder in her ability to do housework as she claims in her recent affidavits. Assisting her friend in her cleaning business in 2011 and 2012 is inconsistent with the plaintiff’s evidence in this regard. Further, in re-examination, the plaintiff explained she was able to do this level of cleaning without any problem.

325     While the plaintiff may have some restrictions in grooming and doing her hair because of her left shoulder, her right arm causes her problems in this regard.

326     Although the plaintiff’s medication regime is significant, she takes medication for all her main conditions; namely, hip, neck, back and shoulder.

327     In terms of the plaintiff’s other activities, counsel for the defendant noted the plaintiff has undertaken considerable travel since the incident, travelling to  Chile in 2003 or 2005, 2007, 2010, Washington 2014; Queensland 2013; and frequent trips to Melbourne.

328     The plaintiff is still able to enjoy her hobby of painting furniture.

329     Counsel for the plaintiff essentially relied on the plaintiff’s complaints of pain and her need for treatment in support of her application for serious injury.[93]

[93]T132

330     Counsel for the plaintiff submitted it is possible to satisfy the statutory test of seriousness in a case where the plaintiff’s experience of pain, as opposed to the disabling effects of the pain, is the only significant consequence relied upon. [94]  However, it was conceded the Court of Appeal did not specifically support this proposition in that case.[95]

[94]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

[95]T131

331     It was submitted plaintiff has complained consistently of significant pain in her shoulder.

332     Reliance was placed on complaints in 2015 to Mr Tan of a deep ache in the left shoulder, Mr Miller of ache, discomfort and pain in the left shoulder and to Mr Schofield of painful left shoulder despite surgery.

333     Counsel for the plaintiff also referred to the plaintiff’s most recent affidavit where she described pain to the front and back of the point of the shoulder which is there all the time unless she takes a major pain killer and she requires daily use of heat packs.

334     The plaintiff complains of continued restricted movement of the left shoulder, problems dressing and having to keep her hair short because of problems with both arms. She also confirmed problems sleeping because of her left shoulder, right hip and back.

335     I do not accept however that the plaintiff has complained consistently of significant left shoulder pain since the incident, noting her reported improvement at times and the lack of ongoing treatment.

336     I have doubts the plaintiff’s shoulder pain is as severe as she at times describes given my findings as to her credit. As Ross J said in Tatiara Meat Co Pty Ltd v Kelso (No 2), complaint of pain, even repeated many times does not establish the veracity of the complaint.[96]

[96][2010] VSCA 12 per Ross AJA at paragraph [46]

337     A proper analysis of the veracity of the plaintiff’s present complaints is made all the more difficult due to the absence of any up to date reports from treating general practitioners who have seen the plaintiff in recent times.

338     The only report from treater Dr Sleeman is a 2015 referral to a gynaecologist. The most recent report from general practitioner Dr Huber was a 2013 referral to a neurosurgeon in relation to the cervical spine. The plaintiff is presently seeing a new general practitioner from whom no report has been obtained.[97]

[97]T82

339     In these circumstances, the inference can be drawn these practitioners would not have assisted the plaintiff’s application. 

340     Counsel for the plaintiff submitted the plaintiff had undergone treatment indicative of serious continuing complaints. 

341     Reference was made to shoulder surgery on 19 October 2004, cervical injections in 2005, radiofrequency denervation in 2006, subacromial injection (Dr Tan) in 2007, and further shoulder surgery on 5 September 2008. 

342     The plaintiff takes significant medication – OxyContin and Endone – although it is conceded that that relates also to her other health issues as well as to the shoulder.

343     It was submitted although it is now thirteen years since her injury, the plaintiff’s  symptoms continue and Dr Tan recently considered she may require a further injection or even a third procedure and her condition is susceptible to further degeneration. 

344     However, when Dr Tan discharged the plaintiff in 2013, he thought her shoulder was making a minor contribution to her pain profile. He only saw her again in 2015 at the request of her solicitors, not on referral from any treater. He then thought she may indeed require a further injection or an arthroscopic debridement but he made no plan to see her again as she was awaiting cervical surgery which he thought could change the course of her recovery.

345     In my view, the plaintiff has largely recovered from the left shoulder injury.  She is not currently receiving any physical treatment nor is she seeing any treating orthopaedic surgeon in respect of that condition. Whilst she takes medication for shoulder pain, she also takes that medication for the other more significant problems of hip and spinal pain. 

Other conditions

346     Counsel for the defendant made lengthy submissions as to the significant nature of the plaintiff’s unrelated ongoing medical conditions.

347     Counsel for the plaintiff acknowledged the plaintiff’s back condition was very serious but submitted the shoulder was equally so.  However, beyond relying on the plaintiff’s experience of pain, counsel for the plaintiff did not, and could not, disentangle the consequences referable to the spinal, hip and other conditions from any consequences of the shoulder injury.

The lumbar spine

348     Counsel for the defendant submitted, clearly, the plaintiff has had a significant lumbar problem since the incident. Surgery has been suggested but funding, denied.

349     Whilst the plaintiff made no mention of her lower back in her first affidavit, in her second, she explained that omission and deposed it was equally serious to her shoulder problem. Further, by the time of her April 2015 affidavit, it had become a very significant problem. 

350     The plaintiff told Mr Winder, neurosurgeon, in May 2011, her low back pain was severe and was not controlled by medication. 

351     The plaintiff agreed she told Dr Vasic in January 2012 the worst pain was in her low back and it was present all time as if a hammer and nail were being punched into it and she rated her pain at 10/10.  Pain of a similar severity was reported to Dr Parkinson in March 2012.  The plaintiff agreed that was how her back felt prior to the injection the week prior to the hearing.  She agreed that the pain is still serious.

352     Obviously the plaintiff’s back is still causing her significant problems with Dr Boecksteiner giving her an injection the week before the hearing commenced. In her viva voce evidence, the plaintiff tried to resile from this position saying that her back is helped by medication but her shoulder is not.  She agreed her back was still very painful and was sort of at the same level as her shoulder but then put the shoulder pain higher, describing it as “killing her.”[98] 

[98]T67

353     The plaintiff has also consistently complained to medico legal examiners in recent times of ongoing problems with her back. She told Mr Schofield in 2015 that she had had low back pain since the injury.  Symptoms are worse if she sat or stood for long periods or walked too far with radiation down the right leg to the knee, which gave way from time to time.  She had had occasional falls.  Her back pain was relieved by resting in a recliner with her back flexed.  She took mediation and lay on her back in bed as that was the most comfortable position. 

354     The plaintiff told Mr Miller she continued to have low back problems with pain and discomfort.  The pain radiated into her buttocks, groins, thighs and right leg and merged with her right hip problem.  Her back problems had slowly deteriorated since the incident. He noted the plaintiff had difficulty walking long distances. 

355     Mr Miller also noted a reduced capacity for domestic and gardening activities as a result of orthopaedic injury, not specifying which, or what injury affected and imposed restrictions on the plaintiff’s activities. 

356     Surgery has been suggested in relation to the lumbar spine by her treaters and supported by Mr Schofield and Mr Miller. Significantly there is no report from Anita Boecksteiner, treating orthopaedic surgeon, whom the plaintiff last saw the week before the hearing.

Cervical spine

357     Counsel for the defendant submitted as the plaintiff deposed, she has had significant neck problems since the incident, and perhaps problems prior thereto as indicated by earlier clinical notes despite her denial this was the case.

358     Further, since the incident the plaintiff has repeatedly attributed her left shoulder pain to her neck, not separating the two conditions.

359     The plaintiff’s neck condition is such that Professor Woodgate in August 2011 thought that she required a C4-6 cervical discectomy and fusion and requested funding for that procedure in 2014.

360     As of 2013, Dr Tan thought most of the plaintiff’s problems seemed to be arising from her neck and cervical spine; hence, she had been seeing Dr Tisch and having further investigations of her cervical, thoracic spine and brain.  There is no report from Dr Tisch.

361     The plaintiff has complained to both Mr Schofield and Mr Miller of ongoing neck problems, having recently told Mr Schofield of continual neck pain causing her head to tilt to the right and left sided neck pain radiating to the left side of the chest and down the left arm to the fingers.

362     Mr Miller noted on recent examination the plaintiff continued to have problems with neck pain and discomfort.  It radiated into the shoulders and both arms, particularly the left, with feelings of numbness and tingling.  There are associated headaches but the neck pain remained the dominant feature.  She stated her symptoms had not improved since last review and she continued to report significant sleep disturbance.

Right upper limb

363     Counsel for the defendant submitted the plaintiff has obviously had right upper limb problems for some time, even predating the incident.  Whilst she initially deposed to those resolving somewhat after surgery in 2005, it is clear that problem continued with further surgery and also specialist referral in 2009.

364     Mr Tonkin, who treated the plaintiff in relation to her right elbow, has not provided a report.

Right hip

365     The plaintiff described to Dr Weissman in March 2015 that she had terrible right hip pain “24/7.” 

366     In July this year, the plaintiff told Mr Miller of ache, discomfort and intermittent pain in the right hip and she walked with a chronic limp.  She felt her legs were unequal and that aggravated her back pain and that there was a worsening of right hip symptoms since his earlier review.

Feet

367     The plaintiff also continues to suffer from plantar fasciitis for which she has had specialist referral and she requires cortisone injections every couple of years.

368     Taking into account all the evidence, I am unable to identify consequences properly referable to the left shoulder that are serious, having excluded the consequences referable to these other conditions.

369     At its highest, the plaintiff has some ongoing left shoulder pain and restriction of movement. I do not however accept her evidence that it is to the level she presently describes for the reasons I have previously stated.

370     The plaintiff’s shoulder condition has not required treatment since last seeing Mr Tan in 2013, when he thought it was playing a minor role in her presentation.  In relation to her spinal condition however, there is a proposed fusion of both the cervical and lumbar spine and ongoing specialist treatment, including the recent injection. 

371     The plaintiff’s other conditions all contribute to any difficulties she may have in relation to sleep, housework, employment and daily activities.

372     Taking into account all the evidence, I am not satisfied that any present consequences referrable to the left shoulder injury are “serious”.

373     Accordingly, the application is dismissed.

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