Johnson v The Salvation Army (Vic) Property Trust
[2009] VCC 633
•4 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-07-04000
| KYLIE CHRISTINE JOHNSON | Plaintiff |
| v | |
| THE SALVATION ARMY (VIC) PROPERTY TRUST | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 19 and 20 May 2009 |
| DATE OF JUDGMENT: | 4 June 2009 |
| CASE MAY BE CITED AS: | Johnson v The Salvation Army (Vic) Property Trust |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0633 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – thoracic outlet syndrome – pain and suffering – loss of earning capacity
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC and | Saines Lucas |
| Mr M Nightingale | ||
| For the Defendant | Mr P Scanlon QC and | Herbert Geer |
| Mr I Gourlay | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment on 28 August 2002 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
4 The impairment of body function relied upon is thoracic outlet syndrome (“the syndrome”).
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. Mr David Wallace, neurosurgeon, was required to attend for cross examination.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof to be determined upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
7 The plaintiff is aged thirty three, having been born on 12 November 1975. The plaintiff has two young daughters. The plaintiff separated from her husband in May 2006 and they are now divorced.
8 After finishing Year 12, the plaintiff completed a Certificate in Office Administration, followed by a placement at the Ballarat and District Division of General Practice for a year. She continued working there until August 1997, when she became pregnant with her first child.
9 The plaintiff worked at Maxi Foods at Ballarat for three months in the middle of 2001. In October 2001, she commenced employment with the defendant at Ballarat as a retail sales assistant in the Salvation Army Shop.
10 Initially the plaintiff was employed as a casual on call. Subsequently, she worked five days a week, four hours a day from 9.00 am to 1.00 pm Monday to Friday, and she usually worked a further four hours every fortnight on Saturdays. When the manager was sick or on holidays, or needed a reliever, she could, on some occasions, work an eight-hour day, one to five days a week.
11 The plaintiff believed that at the time of suffering injury she was earning on average $450 net per week. Save for her injury, she believed that in about 2004 she would have worked thirty eight hours a week as her youngest daughter, Ashlee, commenced school that year. Accordingly, from the start of that school year, she thought she had lost in the region of six hundred dollars net per week.
12 In cross examination, the plaintiff said she had discussed with her mother that her mother would look after the children so the plaintiff could work full time and that her mother was available to do so. However, no particular date had been “locked in”.
13 The plaintiff was cross examined at length as to the amount of days she worked full time. She explained that the defendant had four shops in Ballarat and that she was frequently required to help out when staff were unavailable, to the point where she was virtually working full time in the two months leading up to the said date. She was paid over one thousand dollars per fortnight during that time.
14 Although the plaintiff had some other health problems, she was capable of carrying out full time work with the defendant.
15 The plaintiff’s most recent payslip before the incident dated 18 August 2002 set out that in the previous seven weeks, the plaintiff earned $3,891, making a weekly average of $556.
16 The Claim for Compensation completed by the plaintiff set out she was working 27.6 hours per week at the time of the incident, earning a total of $366 per week. In cross examination, she explained that when she completed the form in the weeks following the incident she was in fact in a lot of pain and not coherent.
17 On the said date, the plaintiff suffered injury when using a claw hammer in an attempt to release the latch on one of the stillages which went on the inside of a clothes bin. Whilst using the hammer, the latch suddenly released and the door swung open, slamming the bottom of the handle of the hammer into the plaintiff’s forehead just above her right eye (“the incident”).
18 The plaintiff continued working after the incident as she had no one to relieve her. She felt severe pain in her head above the right eye with headaches and nausea. She had blurred vision, giddiness and an ear ache, and she also had some neck ache.
19 Over the following two weeks the plaintiff developed an ache in her upper back and right shoulder with pain going down to her arm and hand and numbness in her fifth finger. She developed a similar sensation in her left hand.
20 For two months after the incident, the plaintiff suffered from an amnesia-type condition and she stayed with her mother, who cared for her and her children.
21 The plaintiff went off work on WorkCover, which paid her medical expenses.
22 In September 2002, the plaintiff had a CT scan of her head. At that time she had considerable swelling and severe pain in her right forehead region which pain could travel into her temple, ear and down into her throat and neck, together with cold shivers.
23 The plaintiff attended her general practitioner, Dr Thomson, of the Sturt Street Medical Practice over time and he prescribed her Panadeine Forte, Tryptanol, Tegretol, Vioxx, Endone and other medications. She was also treated with Endep, an anti-depressant, which she ceased taking because of a bladder condition.
24 Over the following years, Dr Thomson referred the plaintiff to a number of specialists in an effort to diagnose and treat her. The plaintiff was referred to Mr Bourke, orthopaedic surgeon, and Dr Kinloch, pain management physician, under whose care the plaintiff underwent a three-week program during August 2005 at Epworth Hospital. She was also referred to Mr Moss, a neuropsychologist, for counselling in December 2005. The plaintiff also had physiotherapy and acupuncture treatment and she attended a masseur, Ms Howie, in Ballarat for relief.
25 Much of the plaintiff’s affidavit evidence detailed her condition before she underwent a second operation in October 2008 (“the second operation”).
26 Before the second operation, the plaintiff continued to suffer from headaches over her right eyebrow, which was often a sharp and thumping pain, constant but varying in severity. She also suffered neck pain, pain in both arms, both shoulders and radiating into both her hands and upper back.
27 The plaintiff was limited in what she could do around the house in terms of heavier housework and cooking and she had to break up the tasks and do them more slowly. Medication helped her sleep. She had difficulty concentrating or writing for long periods.
28 As a result of her injuries the plaintiff had to buy an automatic vehicle with power steering, but she avoided driving longer distances. Her sexual relations were impaired. She was limited in playing vigorous games with her children.
29 Prior to the incident, the plaintiff used to enjoy dancing, going to films, playing bingo and other social occasions. These activities became more limited after the incident. She was embarrassed by the surgical scar on her forehead, she continued to be depressed and tearful, and she lost confidence.
30 The plaintiff attempted to return to work with the defendant in November 2002, performing light duties for two hours a day, three days a week. She could not do heavier tasks and had considerable problems with headaches and had to cease work shortly before Christmas 2002.
31 Although she continued with the full range of painkilling medication, together with cortisone and pethidine injections when her pain was particularly bad, the plaintiff’s condition did not improve.
32 On 20 May 2003, the plaintiff was referred to Mr Wallace, a neurosurgeon, who carried out surgery, repairing a crushed nerve in her forehead on 31 July 2003 (“the first operation”).
33 Following the first operation, the plaintiff had some initial minor improvement in the severity of her headaches. This improvement was short-lived and her headaches reverted to being at least as severe, if not worse. The aching in her right shoulder radiating into her right forearm and hand, numbness in the fifth finger and similar symptoms on the left progressively got worse.
34 In cross examination, the plaintiff said the first operation really did not help anything. Whilst the headaches went away for a couple of days, they came back just as severe, if not worse, and nothing else changed.
35 The plaintiff again attempted a graduated return to work in November 2003 on light duties but she was unable to cope and she had to stop work principally because of headaches in December 2003. She had to cease work also because of her neck and, to a lesser degree, her right and left arm pain.
36 The plaintiff returned to part time light work with the defendant, working limited hours two or three times during 2004 for about a month. She last worked for the defendant on 23 December 2004.
37 Following the first operation, Mr Wallace discussed surgery to treat the syndrome with the plaintiff, but she initially decided not to have it.
38 The plaintiff had problems when she became addicted to Panadeine Forte in late 2006 and she then commenced taking Tramadol for head pain in 150- milligram doses, and Endone for pain relief.
39 During 2007, the plaintiff continued to see the masseur once a fortnight. She saw Mr Moss for counselling once a fortnight and she attended the Queen Elizabeth Centre once a week for hydrotherapy and the gymnasium. At that time she was also taking medication for urinary tract infections and an arthritic condition in her right knee, and she also had problems with heartburn.
40 Between the first operation and October 2008, the plaintiff’s condition was unchanged. She described her life as “absolute hell”. Her headaches were “up and down and her neck pain and everything was still the same”.
41 The plaintiff funded further surgery for her neck, right shoulder and arm problems which was performed by Mr Wallace on 3 October 2008.
42 The plaintiff deposed that in the few months after the second operation, she experienced some improvement in her condition but her symptoms have pretty much since stabilised.
43 The plaintiff continues to experience pain and restriction in her neck, right shoulder and arm. She has to be careful on a permanent basis to avoid activities that will aggravate her condition, such as repeated or heavy lifting. Such restrictions have caused problems with her work, domestic, recreational and social life, and her activities as a mother.
44 The plaintiff continues under the care of Dr Thomson, who prescribes Tramadol. The plaintiff has also been prescribed Valium by Mr Wallace after the second operation. She has weekly physiotherapy and hydrotherapy and attends the gymnasium weekly.
45 In cross examination, the plaintiff said her headaches were less frequent after the second operation but she still got severe headaches probably twice a week.
46 The plaintiff agreed that she told Mr Wallace in October 2008 that things had improved after the second operation. She was not dizzy as often when shopping and the dizziness was less severe but she still takes Maxolon or Stemetil.
47 The plaintiff agreed that her arm has felt very much better. It still ached but not all the time and it was not as severe. It gets more painful the more she uses it. The numbness in her fingers and hand has gone. Her neck has not settled but “it was better; it was still sore”. She disagreed her right arm numbness had resolved but said that it was better. The shoulder aching was still there in the front of her right shoulder. It was still sore but it was not as severe. She can move her left arm much higher than before. She said she still had to bend her head to wash her hair and she could not recall telling Mr Wallace this situation had changed.
48 The plaintiff said the second operation had helped a little bit – “a little bit was better than nothing” considering she had “been through hell for the last seven years – it’s better than none”. When asked whether she was “thrilled” with the result, as Mr Wallace noted, the plaintiff “only agreed to the fact that because it was so severe before the operation and now that – I’ve still got the symptoms and I will have – but it’s not to a severe degree”. She had obtained some relief but disagreed that it was to a significant degree. She had not noticed any improvement over the last couple of months.
49 The plaintiff now tries to do as much as she can with her girls and around the house but she finds with increased activity her pain increases and her concentration and ability to interact with other people is reduced.
50 In cross examination, the plaintiff agreed that after the second operation she can participate in a number of social and recreational activities but she is not pain free. She explained that she had no choice because she was not going to sit back and not do anything. She is thirty three and she needs a life and so do her girls. She is not going to stop because she is in a lot of pain. She has not stopped before and she is not going to do so now.
51 The plaintiff no longer enjoys these social and recreational activities to the level she did before the incident.
52 The plaintiff, who is now divorced, has to support herself and her children. Following the second operation, the plaintiff obtained paid work at the YMCA where she was working as a volunteer. The job was advertised internally and involved organising programs for single parents and their children. It was initially to be for three hours per week.
53 The plaintiff is trying as hard as she can “to keep at it but it is not easy”. She finds it good to have some work but she is seriously limited in what she can do and the hours she can work.
54 Since obtaining the job, the plaintiff’s hours increased to five to six hours a week by Christmas 2008. She now probably does from between five to ten hours per week. In the fortnight before the hearing the plaintiff worked for twelve hours. In February 2009, she worked thirty one hours one fortnight. This fortnight included a two-day camp at Queenscliff. The plaintiff had to have two days off work after this fortnight – “it was too much for her; there was no way she could do more”. She has to take a lot of medication to keep herself at work.
55 In cross examination, the plaintiff agreed she saw herself as doing light clerical work in the future. She did not think that she could manage working four hours a day, five days a week. When asked whether she could work three hours a day or more, she agreed that it was a matter of trial and error. She thought that working twenty hours a fortnight was a reasonable goal.
56 The plaintiff considers her future was “dull and still will be”.
The Plaintiff’s Medical Evidence
57 On 9 October 2001, before commencing work with the defendant, the plaintiff was certified fit to work by Dr Maher despite her weight and the presence of urinary incontinence. Dr Maher’s examination did not reveal any current joint or back problems.
58 The plaintiff attended Dr Thomson on 28 August 2002 complaining of hitting her head with a hammer at work. He noted there was an abrasion on the supraorbital area and she complained of right ear and neck pain.
59 In December 2002, Dr Thomson thought the plaintiff had post concussion syndrome with whiplash injury. He referred her to Mr Donoghue, ear, nose and throat specialist, and Dr Hurley, physician. At that stage Dr Thomson thought the plaintiff was fit to return to her normal duties and believed she had fully recovered.
60 Over the following years Dr Thomson’s view changed and he referred the plaintiff to a number of other specialists after a failed return to work due to the level of pain in her right supraorbital area.
61 Dr Thomson noted the plaintiff continued to complain of right neck and arm pain and she was unable to lift her arms above shoulder height without worsening symptoms.
62 In June 2005, Dr Thomson thought the plaintiff did not have a work capacity due to the severe chronic pain she was suffering from, her right supraorbital neuralgia and her right neck and arm pain. At that time the plaintiff was awaiting approval for the Epworth Pain Management Course.
63 Dr Thomson noted, that despite the first operation, the plaintiff had continuing right supraorbital neuralgic pain which often triggered a migrainous headache. He remained of the belief that the plaintiff was unfit for work due to the neuralgia and her right arm and neck pain
64 Dr Thomson reported in October 2008, after the second operation, that the plaintiff was able to do very limited hours of light work. Her chronic pain affected her concentration, short-term memory and her depressed mood. Further, the plaintiff was unfit to do lifting and she had lost the full use of her upper arm.
65 In March 2009, Dr Thomson noted that since the second operation, the plaintiff was having hydrotherapy, gymnasium work and remedial massage through the Aquatic Centre, and that since 25 November 2008, she had been working at the YMCA as an activities co-ordinator, doing two ten-hour shifts per week, but on light duties with no lifting and avoiding bending, stooping and stretching.
66 Dr Thomson thought that the plaintiff would only cope with those limited hours he noted she was presently working, and only light duties as described. He did not believe the plaintiff could return to her pre-injury duties as they involved lifting, recurrent turning and twisting. He thought the plaintiff would need to work in an ergonomic work environment and avoid working below waist level and above shoulder height. He considered that she needed to avoid lifting and had to have regular breaks to allow stretching and change of posture.
67 Dr Thomson believed the plaintiff remained unfit on the home front to do gardening and heavy loads of washing and ironing. He thought she would struggle with cleaning bathrooms and toilets.
68 The plaintiff attended the Emergency Department at Ballarat Health Services on 4 September 2002 with a possible diagnosis of a fractured base of the skull following the incident. A CT scan was carried out and no abnormality was shown and she was discharged from the Emergency Department to see her general practitioner, Dr Thomson.
69 The plaintiff was seen by Dr Hurley, consultant physician, at the Outpatients Department on 3 October 2002, complaining of headaches. She was commenced on Tegretol and Endone.
70 The plaintiff was first seen by Mr Wallace, neurosurgeon, on 20 May 2003. Mr Wallace undertook the first operation – a supratrochlear nerve section on 30 July 2003.
71 On review on 18 September 2003, the plaintiff stated her pain was now at least as severe, if not worse, than before the first operation. At that time, Mr Wallace thought it was likely the plaintiff was suffering from the syndrome, having initially thought she was suffering from a contusion injury of the supratrochlear nerve.
72 Mr Wallace thought that the plaintiff had suffered a jerking injury to her neck in the incident leading to the compression of the neurovascular bundle at the thoracic outlet, presumably predisposed to by the presence of her cervical rib.
73 On review on 17 February 2004, Mr Wallace noted that the plaintiff was no better with ongoing problems in her arm. She had a positive Surrender test for the syndrome which he thought was her main disorder and may be the explanation for her headaches. He thought the plaintiff should undergo a scalenotomy, an exploration of the thoracic outlet, as she had incomplete cervical ribs and was likely to have a fibrous band compressing the neurovascular bundle.
74 The plaintiff was subsequently seen by Mr Wallace on 13 April 2004, 13 December 2005, 14 August 2007 and 24 June 2008. In June 2008, he noted there had been no improvement in the plaintiff’s condition. The plaintiff had ongoing headaches and her right arm pain was bad and present at all times, and worse with her arms up. Mr Wallace noted that the plaintiff was still intending to undergo surgery for the syndrome but it had been deferred because of the onset of blackouts which were thought to be possibly related to diabetes. He noted all conservative measures had been a miserable failure at treating the syndrome.
75 Mr Wallace performed a right scalenotomy and partial excision of an incomplete right cervical rib and an exploration of the right brachial plexus on 3 October 2008.
76 Mr Wallace noted that four weeks post-operatively, the plaintiff had gratifying relief of her arm symptoms and her headaches had been less troublesome. Her arm felt very much better, the numbness in her fingers had gone and the constant ache in her neck, right shoulder and right arm had settled. Her pre- operative headache had gone.
77 On 20 January 2009, Mr Wallace noted the plaintiff was fairly pleased with herself. Her right arm numbness was noticeably better and almost resolved. She could use her arm much higher. She no long felt dizzy pushing a trolley around the supermarket. She could wash her hair with her head up. The numbness had gone from her fingers and she could drive much better.
78 Mr Wallace noted the plaintiff was taking 100-milligrams of Tramadol for her headaches but was taking more before the second operation. On the Surrender test the plaintiff experienced some pain in the right shoulder and forearm after a minute or so.
79 Overall, Mr Wallace felt the plaintiff was making good progress and he asked her to continue to take care of herself. He noted the plaintiff was thrilled that she was so much better, having put up with the problem for six years or so.
80 Mr Wallace thought that the plaintiff would always have to be careful with the use of her arm in an outstretched and elevated position. He noted that in a certain percentage of people with the syndrome, recurrence could occur, necessitating a further surgical procedure.
81 In Mr Wallace’s view, the plaintiff’s current capacity for general activities for daily living and other activities had been eased somewhat by the second operation, but she was still compromised. In his view, the plaintiff would be wise to be protective of her arm.
82 Mr Wallace considered the plaintiff had no capacity for work but that her capacity to work in the future had greatly been improved by the second operation. He thought in the future the plaintiff would be fit for a wide range of light type duties, such as light clerical duties, work as a shop assistant or receptionist, and that she may require some form of job training to do the latter.
83 Mr Wallace thought the plaintiff should not work where the duties involved reaching to a height or handling of heavy weights or driving long distances. He believed the maximum number of hours the plaintiff should work long term would be half time, perhaps twenty hours a week.
84 Mr Wallace stated that he was somewhat optimistic as to the future, and thought he “might see a new person emerge from the fog of the last few years of extreme discomfort and disablement”.
85 The plaintiff was last reviewed by Mr Wallace on 21 April 2009. He noted that she had tried to return to work on limited hours, up to twenty hours a fortnight, and was struggling with this. As a consequence of her injury, he thought this was likely to be permanent due to the subsequent effects upon her neck, shoulder and arm function. Her injury had also been the cause of her very troublesome headaches.
86 In examination in chief, Mr Wallace explained the syndrome is a condition affecting the upper limb in which, when the sufferer uses the arm either in the outstretched or elevated position, they produce compression of the neurovascular bundle going to the arm. He noted about fifty per cent or more of patients with this condition had a complete or incomplete cervical rib.
87 Mr Wallace stated there could be a connection between headaches and the syndrome. Mr Wallace explained that the parts of the body affected by the syndrome were the front of the shoulder behind the collarbone and in front of the trapezius muscle. It affected the arm and shoulder, there was sometimes referred pain on the left side of the chest and pain and numbness in the arm which most commonly affected the fourth and fifth finger but could affect the whole hand.
88 Mr Wallace explained the Surrender test in relation to the syndrome where a patient is asked to put up their hands as if stuck up in the bank and rapidly forcibly open and close their hands. He noted most people can do that for half an hour or ad infinitum but where it is occluding the artery, they get fatigued, usually within a minute, and cannot sustain the arm in that position. He also explained how, when the patient’s arm is put up, you can listen with a stethoscope behind the collarbone and hear as the artery starts to get squeezed and you can hear what are called bruits, or noises when the artery completely locks off.
89 In cross examination, Mr Wallace said he did not like the pain the plaintiff experienced in the right shoulder and forearm after a minute or so in the Surrender test when examined in January 2009 - he would “rather this was not the situation”.
90 When cross examined about his comment about the plaintiff being “thrilled” after the second operation, Mr Wallace said he “was always nervous” of a patient’s euphoria of having survived an operation and not having died from the anaesthetic then got through it. He noted that people are euphoric and often their euphoria is justified and often the improvement is maintained.
91 Mr Wallace stated that it was more important what someone is like in six months and six years than what they are like in the first two months after surgery, but people with this syndrome who have had a rough time of it really do at times find they are euphoric.
92 Mr Wallace anticipated the plaintiff’s improvement to continue post operatively for three to six months. During that time he explained what tended to happen is that the patient’s residual problems would be less severe, less frequent and more short-lived. In Mr Wallace’s view, people with the syndrome had to either not do certain activities, such as hanging out the washing, or do them differently.
93 Mr Wallace thought the plaintiff would be fit for light duties with her arms down. In terms of going back to work, he said he always finds return to work is a trial and it is often unpredictable how people will cope. It depends on many different factors and it is only when the patient gets “back in the arena that they find the true outcome”. He thought the plaintiff’s inability to work full time was permanent.
94 Mr Wallace explained that when he last saw the plaintiff he thought she was struggling a bit. He commented that she might still improve with time “but it might well be that it is as much as she can push herself without getting further symptoms”. He noted that usually you do not see a lot of improvement after six months but everyone is different.
95 Mr Wallace agreed that the second operation had had a remarkable affect on the plaintiff in terms of improving the function of her body and her quality of life.
96 Mr Wallace thought the next twelve months would be very instructive in terms of how many hours the plaintiff could work. He considered that she might find she can do more. She may find that she cannot go any further than she is. He had reservations from his last contact with her; he “was nervous that she will not do more than she is currently doing”.
97 When asked whether the plaintiff’s current limited work hours was a desire on her part to protect herself, he said “possibly”. His impression was more that the plaintiff was struggling because she got symptoms with the hours she was working.
98 Mr Wallace agreed that it was a matter of waiting to see what happens, saying that the plaintiff’s future is reasonably optimistic and certainly much better than it was in the past.
99 In re-examination, when asked about the plaintiff being “thrilled”, he said it was a very common experience with patients who keep being told there is nothing wrong with them or that they have started to doubt their own sanity and they start believing, “maybe I am imagining it,” and then there is a certain relief at having a diagnosis made and the treatment plan put in place.
100 Mr Wallace agreed that the plaintiff continued to suffer pain and restriction in her neck, right shoulder and arm, and agreed with her description about her problems coping with work, and that she is seriously limited in the type of work she can do and the hours she can undertake.
101 Mr Wallace confirmed his view that the plaintiff’s current situation would be permanent, with the qualification that time will reveal whether it is accurate or not, but he thought the plaintiff was struggling when he last saw her with the work she was doing.
102 Mr Wallace read his consultation note of 21 April 2009. The plaintiff told him that she felt she was working too much and too long and at times had been crying. She had some difficulty using her arms outstretched and she seemed to have a slight shoulder problem. She said that she had had a good work station and was doing bookwork and laptop work and doing verbal meetings. She made the point she felt she was working too long and too hard.
103 On balance, Mr Wallace thought the plaintiff would probably struggle in the next five years and following to do more than she currently does.
104 Dr Bruce Kinloch, consultant physician in pain medicine and rehabilitation, first saw the plaintiff as part of an assessment for her pain management at Epworth Hospital on 21 March 2005. At that time the plaintiff complained of right-sided facial pain with radiation to the right side of her neck and down the right arm which he thought was well-established. He noted she was awaiting removal of the cervical rib to see whether that improved her situation. He did not think her condition had stabilised.
105 In his view, there was a significant obstacle to the plaintiff returning to work in a retail position given her right upper limb disability.
106 Dr Kinloch re-examined the plaintiff on 10 March 2009. He concluded that the plaintiff would not be able to return to her previous heavy physical work but thought that she was capable of managing sedentary computer-based and clerical work in the future and her hours were likely to increase over time. He thought the plaintiff would still be subject to headaches as a consequence of her head injury and she may not able to work full time. With respect to hours of work, he believed it would be unlikely the plaintiff would be able to work more than half her full time hours until the end of 2009, but she may be fit for full time work in 2010.
107 The plaintiff was examined prior to the second operation by a number of doctors. Their views are of limited assistance in relation to the plaintiff’s present condition so I will only deal with them briefly.
108 The plaintiff was referred to Mr Donoghue, ear, nose and throat specialist, on 23 September 2002. He concluded the plaintiff was suffering post-concussion headaches and a very small amount of hearing loss. When he reviewed the plaintiff on 22 September 2005, he thought that she was still having post- concussion headaches.
109 Mr John Bourke, orthopaedic surgeon, first saw the plaintiff on 28 February 2003, and more recently on 22 August 2006. In 2006, Mr Bourke thought if the plaintiff had an injury to her neck at the time of the incident, his assessment on that date revealed it had now resolved and, in his view, it was even more unlikely she had developed the syndrome as a result of the incident. In his view, the plaintiff now had a chronic pain syndrome, the focus of which was the injury to the inner aspect of the right eyebrow, and nerve bruising. He noted the plaintiff had abnormal illness behaviour.
110 Mr David Brownbill, consultant neurosurgeon, saw the plaintiff on 21 September 2006. He noted on examination she was co-operative, exhibiting a flattened affect but without embellishment. He noted a marked restriction in the movements of her cervical spine and that there was decreased sensation in the cranial nerves in the right forehead. Active shoulder movements were restricted and there was tenderness to palpation in the front of each shoulder. The plaintiff described marked upper arm pain on both sides on performance of the Surrender test. He noted her response to the Surrender tests was of a magnitude and speed that did not allow full assessment of contributions by the possible syndrome and by a likely emotional reaction component.
111 Mr Brownbill considered the plaintiff had suffered damage to the divisions of the frontal division of the right trigeminal nerve. He considered, on probability, that the plaintiff had suffered the syndrome precipitated by the sudden movement of her neck.
112 Dr Capes, industrial physician, examined the plaintiff on 3 June 2008. He noted her neck movements were full but painful on extension in extremes. She was tender over the right side of her cervical spine. Her right shoulder movements were decreased and the Surrender test seemed positive to him. He noted the right fifth finger appeared to lack normal sensation.
113 Dr Capes diagnosed trauma to the supratrochlear nerve on the right, and soft tissue injury to the cervical spine. He thought Mr Wallace was most likely right with his diagnosis of the syndrome. He thought the plaintiff would continue to have aggravations of headache and right and left arm symptoms if pushed to return to full time work, but he thought she had a capacity for part time work. He considered she had no capacity for her pre-employment duties and she could work in an office where there was no lifting above waist height and no overhead work, but she would be limited to one-and-a-half to two hours on the computer.
Investigations
114 A number of investigations have been carried out, none of which are particularly relevant to the present claim.
115 An x-ray of the skull was taken on 30 August 2002; a CT scan of the brain on 2 September 2002; nerve conduction studies and an EMG on 13 September 2002; an x-ray of the cervical spine on 23 September 2002; a CT scan of the brain on 10 January 2003; and an x-ray of the cervical spine on 2 September 2003.
The Defendant’s Medical Evidence
116 The only medical material obtained on behalf of the defendant that post dates the second operation is an examination by Dr Sedal, consultant neurologist, on 20 April 2009, who had seen the plaintiff previously on 22 April 2004.
117 On the first examination in 2004, the plaintiff complained to Dr Sedal of a severe headache across the right eyebrow to her temple which might thump, and pain would go to her ear or throat. The headache was there all the time and varied in severity from a dull ache to very severe pain. Her neck was stiff and sore and so was her back, and her right shoulder ached to her wrist and she had intermittent numbness in three fingers.
118 On examination, movement of the plaintiff’s right arm was restricted by pain in her right shoulder, but Dr Sedal did not believe there was any neurogenic weakness and he did not observe any wasting. There were no sensory abnormalities in the plaintiff’s hands and reflexes were equal. There were no bruits heard over her subclavian or carotid artery. Neck movements were restricted.
119 Dr Sedal did not think the thoracic outlet region was directly injured in the incident. He thought that it was a pre-existing congenital condition and that the incident had only contributed in a secondary way by reason of the plaintiff altering her body posture, and fatigue and psychological problems were also likely to have contributed.
120 In 2004, Dr Sedal did not personally favour a thoracic outlet exploration. He thought, even if it was successful, it would not be expected to help the plaintiff’s principal problems of headache, neck pain, shoulder pain or back pain, though it might relieve the intermittent numbness and tingling in her hands. He noted the risk was that even when performed by a highly-skilled surgeon like Mr Wallace, such surgery could be followed by difficult to treat pain syndromes, a situation which, in his view, was already present.
121 Dr Sedal noted in 2004 that the plaintiff would have a permanent impairment as a result of her permanent sensory loss on the forehead and associated pain in the nerve territory.
122 On re examination on 20 April 2009, the plaintiff complained to Dr Sedal of headaches of varying severity. Weekly she had a mild headache and it responded with Tramadol, and once a fortnight she got a severe headache which responded to a bigger dose of Tramadol and a nap for an hour. The headaches were situated across the right eyebrow to the vertex, temple and sometimes to the ear and throat. They could be a dull ache or stabbing or thumping pain, and every few months the plaintiff may vomit with a headache.
123 The plaintiff complained that her right forehead is still numb above the right eyebrow. She had constant neck pain, the severity of which varied. Her upper back and right shoulder ache, with her right arm aching and feeling heavy from time to time and can get sore.
124 On examination, Dr Sedal noted there was numbness of the right forehead extending up to the top of the plaintiff’s head. He did not feel there was any neurogenic weakness or sensory loss in the right arm, although there was still some limitation of movement due to discomfort. He noted the plaintiff’s reflexes were generally depressed but equal and he did not find any sensory abnormalities in her arm. The pulses were equal at both wrists and he did not hear any cervical bruits. Neurological examination of the lower limbs was normal and he noted neck movements were again restricted.
125 In Dr Sedal’s view, the plaintiff’s right supraorbital nerve lesion was a direct effect of her work injury and she had a permanent sensory loss resulting from it. He thought her headaches had been multifactorial, being related to the head injury, but also contributed to by psychological stressors. He considered her neck and arm symptoms would be primarily related to the cervical rib but would also have been contributed to by her work accident in terms of stress, fatigue and dropping of the shoulders. He noted the plaintiff’s domestic problems would also have contributed to this.
126 Six months following the second operation, Dr Sedal believed the plaintiff’s condition had substantially stabilised at its present level of symptomology. He thought the numb area on the right side of her head would be permanent as the nerve had been excised. He considered the symptomatic progress appeared more positive than when he last saw the plaintiff, given the successful surgery and the reduction in her symptoms and her successful return to work.
127 Dr Sedal thought the plaintiff was fit to do the work she is currently doing for the current hours, having obtained a history that she had worked up to thirty- six hours a fortnight. In terms of increased hours, he believed it was probable the plaintiff would be able to work for longer hours in the talking and co- ordinating aspects of her present work. He was uncertain as to what extent she would be able to increase her workload at the computer and any increase in that type of work, in his view, would have to be monitored by her general practitioner in case she got a recurrence of some of her previous symptoms.
128 The defendant tendered a report from Dr Hurley, consultant physician, detailing the plaintiff’s attendance at the medical outpatient clinic at Ballarat Health Services on 3 October 2002 complaining of headaches for several weeks following the incident.
129 Dr Hurley noted that examination findings were essentially normal and that CT, thyroid, ultrasound and cervical spine x-rays were normal. He mentioned the plaintiff had a non-specific headache. He encouraged her to return to work and to do so she would need to cease Tegretol and ideally reduce Endone, as he thought that Tegretol may have been compounding her symptoms.
130 Mr Scott, consultant surgeon, examined the plaintiff on 27 February 2003. On that date she complained of constant right temple pain and an occasional ache in the neck and neck stiffness.
131 On examination, the plaintiff complained of tenderness over the forehead. Mr Scott noted there was a full range of painless neck movement and no tenderness on deep palpation. There was a full range of painless movement of all upper limbs and there was no upper limb abnormality of motor power, tone, sensation, reflex activity or circulation.
132 Mr Scott diagnosed haematoma formation and probable irritation of the right supraorbital nerve. He thought the plaintiff might have sustained a mild soft tissue injury to the neck. At that stage he thought she had a capacity for light work and there would be no impediments to total recovery.
133 Dr James Rowe, specialist occupational physician, examined the plaintiff on 16 August 2006. At that time she told him she suffered with daily headaches, sometimes more severe. They were on the right side and radiated to the side of her face and neck and she had numbness on her forehead. She had pain in her neck on both sides, both shoulders, both forearms, both hands and numbness in two of her fingers.
134 On examination, the plaintiff had stiffness of movement of her neck and he noted informally that she had quite a good range of movement. She had normal movement of her wrists and elbows and a marked loss of motion of her shoulders for reasons Dr Rowe said were not clear to him. He said there was no real objective change in sensation about her hands or arms.
135 Dr Rowe concluded that there was little to find on physical examination and he could find no abnormality that would provide a reasonable diagnosis for the plaintiff’s ongoing symptoms.
136 Dr Rowe thought the plaintiff might suffer with a chronic pain syndrome, but the medication she had been taking had made no difference to her complaints. He thought there could be psychosocial factors contributing to her symptoms. He did not think the plaintiff had any underlying physical injury. In his view, she did not suffer with the syndrome, saying that there were no signs or symptoms of it.
137 Dr Rowe saw no reason why the plaintiff could not return to work, and that if she had a headache, there was no reason why she could not stop work. He thought massage treatment should be stopped forthwith.
Claim Documents
138 The plaintiff completed a Claim for Compensation on 13 September 2002. She set out that the total number of ordinary hours worked per week prior to her injury was 27.6, at an hourly rate of $13.29, making total weekly earnings, excluding overtime, of $366.80.
Wage Details
139 The defendant tendered the plaintiff’s payslip for the financial year 2001-2002 which covered the period 15 October 2001 to 23 June 2002. During that thirty-eight week period, the plaintiff earned $17,091, an average of $514 per week.
Findings
140 In this application the issues are of narrow compass.
141 There is no dispute that the plaintiff suffered a compensable injury on the said date which was ultimately diagnosed as the syndrome and finally operated upon in October 2008. Further, in the incident the plaintiff suffered a contusion injury of the supratrochlear nerve which was the subject of surgical division in 2003.
142 There is no real dispute that the parts of the body affected by the syndrome are the neck, the shoulder on the right side, the right arm and numbness in the hands.
143 The plaintiff is required to show that the consequences of the syndrome are “serious” as at the date of this hearing.
144 The impairment relating to the syndrome must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
145 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
146 In addition to being “serious” the impairment must be permanent, in that it is likely to continue into the foreseeable future.
147 Put simply, it was submitted on behalf of the defendant that the second operation was of such benefit to the plaintiff that the consequences to her of the injuries suffered in the incident are no longer serious. It was conceded that the plaintiff’s life prior to the second operation had been one of, if not misery, then something close to it, but that situation had dramatically changed following the second operation.
148 Counsel for the plaintiff submitted, despite improvement following the second operation, the consequences to the plaintiff still meet the statutory test of seriousness.
149 I found the plaintiff to be a very credible witness who openly made concessions as to an improvement in her condition following the second operation. She did not, in my view, attempt to maximise her level of disability in any way.
150 Further, I found her to be a very highly motivated young woman, evidenced by her many attempts to return to work with the defendant both before and after the first operation, her willingness to fund and undergo the second operation when her case was pending and also her return to work only one month after the second operation.
151 I accept that the plaintiff’s present treatment regime, after the expiration of the expected improvement period of six months, is still significant despite the success of the second operation.
152 Subsequent to the second operation, the plaintiff continues to take Tramadol daily with increased dosages at times of severe headache which occur approximately twice a week. Further, she has been prescribed Valium by Mr Wallace since the second operation. The plaintiff also continues to undergo hydrotherapy and massage treatment weekly and she attends the gymnasium once a week.
153 The plaintiff, despite improvement following the second operation, still has shoulder and arm pain and restriction of movement in her right upper limb. She still has to be protective of her right arm. Whilst her headaches are less frequent, she still has severe headaches twice weekly.
154 As the plaintiff explained in cross examination, her enthusiasm for her post surgery condition as noted by Mr Wallace, referred to the relief she had obtained after what she described as seven years of absolute hell to reaching a situation where there was a less severe level of pain since the second operation.
155 Due to her ongoing level of pain, the plaintiff’s domestic situation continues to be adversely affected. Even though the plaintiff’s current capacity for various activities had been eased by the second operation, Mr Wallace thought she was still compromised in terms of general activities of daily living. He thought she would be wise to be protective of her arm when using it in an outstretched or elevated position in the long term.
156 Dr Thomson considered that the plaintiff would remain unfit to do heavier duties around the house – a particularly difficult situation for a young single mother with two small children.
157 Whilst the plaintiff quite openly admitted that she can do a wider range of domestic and social activities after the second operation, I accept that she does so in pain.
158 The plaintiff is presently aged only thirty three. As she explained, she is not going to sit around doing nothing. She has to have a life and so do her girls. She has never not done things in the past because of her pain and she does not intend to do so now.
159 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 (2008) VSCA 260, at paragraph 4, when describing a plaintiff who had got on with his life following injury:
“It would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who being of less strength of character simply resigned himself to his injury.”
160 From a work perspective, clearly the plaintiff is unable to do work involving her upper right limb and both treating doctors and medico-legal examiners have thought it fit to place restrictions on the type of work she can undertake.
161 Dr Thomson thought the plaintiff had a capacity for light duties with no lifting and avoiding stooping, bending and stretching. Mr Wallace considered she would be likely to be fit for a wide range of light duty type activities, such as clerical or receptionist work, without the need to use her arms outstretched or over her head or without the need to lift or handle heavy weights.
162 Dr Kinloch thought the plaintiff needed to work in an ergonomic work environment and avoid working below waist height and above shoulder height. She had to avoid lifting and would need regular breaks to allow stretching and change of posture. Dr Sedal was concerned with any increase in the amount of her computer work.
163 As to the future, Dr Sedal considered in April 2009 that the plaintiff had stabilised at her present level of symptomology. Mr Wallace did not anticipate any improvement beyond six months following the second operation – thus beyond April 2009.
164 Whilst Mr Wallace sounded very enthusiastic as to the plaintiff’s post operative condition in his reports, he said he did not like the fact that the plaintiff had a positive Surrender test in January 2009, with the plaintiff experiencing some pain in her right shoulder and forearm for a minute after.
165 It is interesting to note Dr Sedal’s comments when he examined the plaintiff in 2004 as to his lack of enthusiasm for thoracic outlet surgery. In his view, even if successful, the surgery would not be expected to help the plaintiff’s principal problems of headache, neck pain, shoulder or back pain, although it might relieve the intermittent numbness and tingling in her hands.
166 Taking into account the plaintiff’s continuing pain and disability relating to the syndrome, her need for treatment and the restrictions resulting from it on both her work and domestic activities, I accept that the plaintiff has a serious injury relating to the syndrome and that her impairment is permanent given it is unlikely there will be any further improvement now that it is over six months since the second operation.
Loss of Earning Capacity
167 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing she has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 168 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 169 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
170 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
171 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
172 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
173 I am therefore required to determine a “without injury” earnings figure.
174 It was submitted on behalf of the plaintiff that the “without injury” earnings figure which most fairly reflected the plaintiff’s earning capacity was $556.00, of which sixty per cent is $333.00.
175 This figure was based on the plaintiff’s earnings for the seven weeks before the incident – a period where she was working virtually full time.
176 Counsel for the defendant submitted that the “without injury” earnings figure should be a lower figure which represented an average of the plaintiff’s weekly earnings from the time she commenced work with the defendant on 15 October 2001 until the end of the 2001-2002 financial year. During that period the plaintiff earned a total of $19,019. On average she earned $514 per week, sixty per cent of which is $308.
177 It was submitted an average of the plaintiff’s earnings most fairly reflected her earning capacity rather than a small window in the latter part of the earning period, which it was submitted gave an inflated figure.
178 I find that the higher figure most fairly reflects the plaintiff’s “without injury” earnings figure, having accepted her evidence that she was working virtually full time before the incident as evidenced by the August 2002 payslip.
179 The plaintiff’s present earnings from personal exertion amount to $132.00 a week with the YMCA.
180 Whilst medical opinion has been expressed as to the plaintiff’s capacity for employment ranging from ten hours per week to twenty hours per week and, in Dr Kinloch’s view, to perhaps full time at the end of 2010, these medical opinions must be considered in light of what has actually happened when the plaintiff has returned to work.
181 As Mr Wallace noted when he last examined the plaintiff in late April 2009, she had probably reached a position where she had improved as much as she is going to. He thought it probable that the plaintiff’s level of work at that time – namely ten hours per week – was permanent.
182 Further, given the plaintiff’s high level of motivation, I accept that she is performing duties to the maximum of her ability at the present time.
183 Accordingly, I accept that the plaintiff’s present loss of earning capacity is likely to continue into the foreseeable future.
184 I am satisfied that the plaintiff cannot work more than ten hours per week and she is unable to do manual work or work requiring significant use of her right upper limb.
185 On the basis that the plaintiff is capable of working a maximum of ten hours per week at her current hourly rate of $21, her “after injury” earnings do not exceed $210 per week.
186 This maximum figure clearly falls short of $333, which is sixty per cent of her “without injury” earnings.
187 Therefore, the plaintiff has a loss of earning capacity of forty per cent or more, which I accept is likely to continue into the foreseeable future.
188 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
189 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB (38)(g).
190 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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