Jorquera v Victorian WorkCover Authority
[2016] VCC 1456
•8 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-04922
| ELIZABETH JORQUERA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 September 2016 | |
DATE OF JUDGMENT: | 8 September 2016 | |
CASE MAY BE CITED AS: | Jorquera v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1456 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left shoulder and upper arm – pain and suffering and economic loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142; Harris v DJD Earthmoving [2016] VSCA 188
Judgment: Leave granted to bring proceedings for pecuniary loss and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Ms N Wolski | Verduci Lawyers |
| For the Defendant | Ms K A Galpin | Hall & Wilcox |
HIS HONOUR:
1 Having been born and educated in her homeland of Chile, the plaintiff came to Australia in 1988. While she had been educated to Year 12 in her native tongue, Spanish, she has had limited training in English language skills. Her English skills, both orally and in writing, are quite limited.
2 She first worked in Australia as a cleaner for several years. She started as a personal homecare worker with the Maribyrnong City Council in 2007. Her work was manual in nature and at times heavy. Her duties ranged from personal care to accompanying people needing care at appointments and shopping but essentially, she had to look after the needs of her clients. They were the elderly and infirm and also younger people with autism and other disabilities.
3 Their needs included showering, dressing, preparing meals, housecleaning and mopping. As well as being heavy, some of the tasks were difficult. A number of the patients were wheelchair bound, had difficulties with standing or balancing and she had to perform heavy lifting in uncomfortable positions. Lifting and moving heavy patients caused a lot of understandable stress on her body and her arms in particular. Generally, she worked 30 hours per week in this employment with the local council. She turns sixty years of age this January.
4 She went off work and has been off work since November 2011 following the onset of arm symptoms. These were initially more in the wrist areas but in time her left shoulder and upper arm had become her major physical problem. Her dominant arm is her right.
5 This application for leave is a paragraph (a) application relying on the impairment of the left shoulder and upper arm. It is an admitted compensable injury. Both pain and suffering and pecuniary loss damages leave are sought.
6 The issues for the Court were articulated by the defendant. Firstly, the shoulder symptoms involved a mix of organic and psychiatrically-based impairment, it was submitted. So, in other words, the paragraph (a) statutory definition of “serious injury” is not proved by the plaintiff.
7 Secondly, while it is conceded the plaintiff cannot work at her old job, the defendant admitted there were other jobs she was capable of that saw her fail to prove a permanent 40 per cent or more loss of earning capacity. As I understand it, this second submission requires an analysis of any residual capacity for alternative “suitable employment” as defined by the Accident Compensation Act 1986 (“the Act”).[1]
[1]Transcript (“T”) 11 - 12
8 The defendant’s case is that the majority of medical opinion states she is capable of work if there is a lift limit of 5 kilograms with no overhead lifting.[2] Within those restrictions, the defendant submitted there were three alternative jobs she is capable of, any of which would mean her failure to establish the 40 per cent or more loss.[3]
[2]T37 – 38 and 15
[3]T15
9 The plaintiff was the only witness called. It was clear in court her language skills are quite limited. It was obvious that she needed a professional interpreter in order to understand questions and answer them properly. There was some challenge as to that need.
10 She attended doctors with her son to assist her understand English, although at times doctors have noted she was alone. I accept the evidence that she mainly went with her son in order to overcome her language limitations.
11 I accept her evidence when she said she did not have the ability to write in English and when trying to do a course, she struggled with some of the terminology as well as the required computer skills. Her son also helped her with some courses she did as part of her efforts to obtain employment.
12 She completed some courses in health and patient services to improve her employment prospects but only by relying on her to complete the written requirements.[4]
[4]T28, 41, 59 and 68
13 I accept she needs this level of help. In terms of her English skills, I accept her evidence that she is not fluent in oral or written English.[5] At one stage when she tried a TAFE course, she only lasted one day because she had difficulty understanding the medical terminology and coping with the demands of computer skills that were required. She found courses were beyond her due to that lack of computer literacy.[6]
[5]T48
[6]T30 – 31
14 Whenever she had some written assignment to do in relation to the two certificates that she had obtained it was always with the help of her children. In the end, she was accurate when she summed up her English skills by saying without assistance she could write very little in English but only short messages like “good” or “bad”.[7]
[7]T68
15 It is worth noting that in terms of the care work she did for the needy, the manual tasks were mostly self-evident. I did not need evidence to convince me that in order to look after the elderly or infirm, no sophisticated communication skills were required in order to make sure they were showered, dressed, clean in terms of personal hygiene, had their meals prepared, their homes cleaned and a myriad of other tasks required of her.
16 Good language skills were not necessary to complete those basic tasks.
17 It is a great advantage in these applications to not only see but to hear a witness over several hours of evidence. I formed the view the plaintiff was a reliable witness. She has been motivated to work all her life. She has in effect been a single mother raising two children who have now reached adulthood. They had different fathers who basically left the children to her to support, raise and parent. One child was born in Chile and one on Australia.
18 She had the fortitude to leave her homeland for Sweden and then go onto Australia. She has had to support herself.
19 The defendant sensibly conceded this was not really a credit case as one often sees in this jurisdiction. In that context, it is worth noting that no doctor on either side really challenged the genuineness of the plaintiff in terms of the complaints although some say they are in fact so widespread as to be indicative of a mental health issue being involved. It is also worth noting in this context that an admission has been made by the defendant that the plaintiff was under video surveillance over four days in July 2016. No video was shown to the Court or anything suggested in cross-examination as to that surveillance.
20 I reject the defendant’s submission that the plaintiff has overstated her difficulties with the English language. She has attended doctors on a number of occasions with the help of her son and this is consistent with what she said to the Court about relying on her children in terms of language challenges.
21 More importantly, I have heard her over two days and I am satisfied the difficulties she has with English are genuine. Her spoken English is reasonable but a long way from being adequate and she is even more limited in reading and writing English.[8]
[8]Plaintiff’s Court Book (“PCB”) 27 and 29; T30, 48, 49, 68 and 73
22 The defendant submitted that she has rather overstated her shoulder symptoms and their effects. In that sense, it was submitted she was unreliable in attributing everything to her shoulder even in the face of medical records indicating other complaints such as about her back, neck, knees, wrists and fibromyalgia.
23 While that submission has some force, the task for me is to really decide is there a substantial organic cause of her shoulder complaints of pain and restricted mobility? If there is, then can the consequences flowing from that be said to be “at least very considerable” when judged in the range of possible impairments of the left shoulder and upper arm.
24 The plaintiff did emphasise the difficulties her shoulder impairment gives her but she did not, in my opinion, overstate in any unacceptable way the level of her pain, nor unduly diminish her other health problems. She clearly has had other health problems. It is not unusual in a serious injury application where an injured worker is required to focus their attention on a single identifiable injury, particularly one that has gone through treatment over some five years, for that person to focus very directly on that injury. I accept she had such a focus.
25 I will deal shortly with the extent of that extensive shoulder treatment leading eventually to surgery and even as recently as this year resulting in three months, having both physiotherapy and hydrotherapy, until stopped by the insurer.[9] I am satisfied she did not exaggerate her shoulder problem nor indeed shy away from any of the other health problems in any way that impacted adversely on her credit. I found her evidence reliable.
[9]T54
26 Clearly, other health problems were recorded by the Royal Melbourne Hospital from early 2011 including back, neck symptoms and other problems as documented over the years.[10] The thrust of her evidence was that it was her left shoulder that was still causing her difficulties working and generally in terms of pain and suffering. If anything, I found the plaintiff quite stoical and understated in regard to her symptoms and her difficulties.
[10]PCB 51, 62 and 63
27 Not being able to work now for some five or so years, she has suffered some mental focus and some anxiety on her lost capacity for work but I am satisfied she went off-work due to organic impairment of her left shoulder and she is still suffering organically-based impairment from that shoulder.
28 Unfortunately, it has been added to by some mental anxiety and concern as physical treatment has failed to cure her physical shoulder impairment. Thus, this single woman has had to face the prospect of being permanently unable to work and with very limited capacity to move into anything other than basic manual work in a country where her language skills, and no doubt her age, limit her. On all the evidence, including her age, language limitations and lack of computer skills, she is effectively unable to be retrained for non-manual work. This must add to some anxiety.
29 The Royal Melbourne Hospital has been the site of nearly all her treatment. That treatment for this admitted compensable injury started around October 2011 when the Royal Melbourne Hospital recorded a complaint of persistent left shoulder pain and diagnosed a left rotator cuff syndrome. This was confirmed on ultrasound and her very significant treatment journey started, principally at the hands of the Royal Melbourne Hospital staff.
30 The left shoulder impingement test was positive.[11] Treatment included, in 2011, left shoulder steroid and local anaesthetic injection treatment, regular medication, shoulder exercises and physiotherapy. Further steroid and local anaesthetic injection treatment was tried a second time. Further exercises and painkillers were recommended.
[11]PCB 63 – 66
31 In 2012, there had been minimal relief from the injection treatments. Physiotherapy and massages worsened symptoms. Hydrotherapy and specific printed-out shoulder exercises were tried with no symptomatic improvement. Subacromial bursa injection treatment followed with more advice on exercises and local physiotherapy away from the Royal Melbourne Hospital. A buprenorphine patch helped pain in 2013. Clearly, these treatments were unsuccessful as she underwent shoulder surgery on 22 January 2015 by way of a subacromial decompression involving a number of structures.
32 The operative report states that there was subacromial bursitis present and she had a debridement of the bursa, together with subacromial decompression which included an acromioplasty and division of the coracoacromial ligament.[12]
[12]PCB 115
33 On examination in February 2015, left shoulder tenderness was still reported.
34 In March 2015, ongoing left shoulder pain was recorded at the Royal Melbourne Hospital. Pain management clinic services were engaged. Ongoing analgesia and physiotherapy were recommended by the treating surgeon.
35 In the June 2015 notes, left shoulder pain and restricted movement continuing were reported.
36 The last Royal Melbourne Hospital attendance for the shoulder was in 2016 when restricted shoulder movement was recorded.
37 The last word in 2016 from the Royal Melbourne Hospital documents was that the treating specialists recommended the continuation of left shoulder exercises, physiotherapy and hydrotherapy. The notes also indicated that the plaintiff had suffered knee symptoms and some ongoing wrist problems that had led to carpal tunnel surgery. Clearly, the pain and suffering symptoms from the shoulder impairment have been ongoing. The treatment records from the Royal Melbourne Hospital clearly indicate an organic or physical problem that has required all this attention over the years.
38 I am satisfied on this treatment history, as well as the oral evidence, that she still suffers from an organic left shoulder impairment. I accept her evidence she has suffered constant pain over the last five years. It is a chronic pain.[13]
[13]PCB 31 – 32; T77
39 I also accept that her left shoulder function remains restricted and as well as pain she suffers from a lack of strength.[14] She was still undergoing treatment for that physically-based injury until the insurer apparently indicated it would not continue to pay for hydrotherapy and physiotherapy. Such treatment is consistent with an organically-based impairment. It is not treatment of a nature directed to any psychiatrically-based problem.
[14]PCB 31
40 The fact that she has developed some mental focus on the shoulder is not surprising, as I have described already in the circumstances she has faced over the last five years. I am satisfied that on the probabilities, given the duration and extent of her treatment, she has a problem that is permanent in the sense that it will be with her for the foreseeable future.
41 I will deal with each of the medical opinions briefly. The defendant quite properly conceded that generally, medical opinion has limited her to jobs with a 5-kilogram lifting load limit and avoiding lifting above shoulder height. She was cross-examined about these capacities and she candidly thought she could do some jobs within those restrictions. She quite readily agreed she was interested in a job as a companion to aged clients. In the end, her optimism and keenness are not matched by any real capacity on the evidence before me.
42 She has in fact applied for a number of jobs. There have been dozens.[15] They were in the general area of nursing homecare or respite care. Clearly, the people who are so disabled that they need a bedside or other companion would also require mobility and lifting assistance if they are to be properly attended to in terms of personal needs and necessary day-to-day mobility. I accept her evidence in this regard about the physical demands required of both personal and respite carers and it is simply commonsense when one thinks of the basic needs of the disabled.[16] Again, I do not need evidence to accept that the people who need care because of serious disabilities come in all shapes and sizes and can be very heavy, difficult and awkward to move, lift and attend to.
[15]T30
[16]T69
43 The plaintiff indicated that she had signed up to SEEK and Job Seeker organisations in order to try and obtain work. It was informative that any job that came up through such an agency she would show to her son. He would write a letter for her and a résumé and he would send it off for her on the internet. She willingly said if she was offered some sort of job in that field she would try it. This evidence is consistent with a motivated plaintiff.
44 Again, as to motivation, she had signed up for voluntary work given that no paid employment had been found. She indicated some positivity about her capacity for work but optimism does not translate into capacity in the real employment world.
45 The courts have been reminded that when this concept of suitable employment is being evaluated, the reality of the employment market needs to be kept in mind.[17] These are cases that have dealt with this concept of the range of considerations that need to be viewed with the reality of employment in the workplace market when considering suitable employment.
[17]See Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142; Harris v DJD Earthmoving [2016] VSCA 188
46 The definition of “suitable employment”, encompassing as it does a number of matters including experience, age, skills and work experience, has to be seen in a realistic light. Limited language skills are clearly relevant to a realistic appraisal for any capacity for alternative work. In my view, a lack of computer skills in this day and age is particularly important.[18]
[18]T29, 30, 49, 66, 69, 73 and 79
47 The plaintiff was taken to the three alternative jobs suggested by Recovre in its 2016 report.[19] These jobs were a retail sales assistant in an optical supply shop, hand packer in a hosiery factory and a lifestyle and leisure assistant in aged care.
[19]Defendant’s Court Book (“DCB”) 110 – 114
48 The plaintiff candidly and consistently said she would try such jobs if someone gave her a job. I accept she would try virtually any employment that was offered to her but the question of capacity and not willingness or motivation, per se, is what I must judge.
49 There are a number of reasons why I do not accept these suggested job alternatives as realistic alternative employment as suggested in the Recovre report:
· Firstly, I do not accept she has “sound English speaking skills”.[20]
[20]DCB 112
· Secondly, I do not accept “her English reading skills are of a good standard”.[21]
[21]DCB 112
· Thirdly, the jobs suggested often involve manual tasks beyond her capacity.
· Fourthly, in a number of cases, the duties involve computer skills in a context where the plaintiff's skills are clearly inadequate.
· Fifthly, the report seems to completely ignore the fact that the worker in question is in constant and chronic pain.
50 Briefly, I will deal with each of these job suggestions.
51 While the plaintiff thought the job in a spectacle shop might be ideal, clearly her English skills would be insufficient to field the technical questions people would ask when purchasing spectacles. Evidence is not required to convince me of all sorts of questions about the products and the range that would be required of her in optical supplies. The duties described involve advice on product range, price, delivery, warranty and product use and care. The plaintiff has no work experience or qualifications in this area. She would be required to demonstrate and explain to customers the goods and the services. There will be questions about what is in effect a health product and she is not equipped for such tasks.
52
She is required to prepare sales invoices to assist with management of stock and inventories and has had no experience with this type of work where English skills would be required. The job description indicates there would clearly be telephone responsibilities. Again, dealing with such queries over the telephone makes the language issue even more of a problem than talking
face-to-face with the plaintiff. The plaintiff acknowledged this.
53 There are other aspects of the shop assistant suggestion that require comment. The physical requirements indicate that sales assistant work typically falls within the “light category” according to some generic, computerised job market data category that is being used by Recovre.[22]
[22]DCB 115
54 “Light work” is defined as “lifting 9.1kgs maximum with frequent lifting and/or carrying of objects weighing up to 4.5kgs”. Recovre then point to this particular job selling spectacles as being within those limits. In my opinion, there is some artificiality about this exercise when looked at realistically. Just the physical aspect in itself would lead me to conclude that the sales assistant jobs suggested, even though it is dealing with spectacles, seems to ignore the fact presumably deliveries will come in boxes of different sizes and weights. Any optical shop one can think of also has frames and spectacles stacked up on walls above shoulder height for this relatively short lady. The photographs point to this probability. The physical requirements set out are, in my opinion, beyond the plaintiff because of her shoulder impairment.
55 The computer skills described as being usually required are typically competency levels of different programs and systems that on the evidence are beyond the capacity of the plaintiff.[23]
[23]DCB 116; T29, 30, 49, 66, 69 and 73
56 Accordingly, on the probabilities and looked at realistically, this retail sales assistant position is beyond the plaintiff’s capacity. It is not a “suitable employment” alternative for her.
57 When the demands of the job were explained in court to her, she said they were beyond her capacity.[24] I accept that as a reliable statement.
[24]T60, 61, 62, 66 and 67
58 The second job suggestion was a hand packer. Again, the generic weights in this category of job can go beyond the capacity of the plaintiff.[25] The particular packing job is in a hosiery factory which purports to be within the generic weight limits. In a general sense, packers are described as being required to weigh, wrap, seal and label products. They obtain supplies of products and assemble bags. They pack containers and bags of products. They place bags and packages onto trays and racks and onto shipping cartons.[26]
[25]DCB 117
[26]DCB 117 – 118
59 For a worker with a shoulder injury, limited to the weights that she is, it is, in my opinion, unrealistic to pick a hand picker job in private industry as being within her capacity.
60 It is unrealistic for her to go into the employment market and try to present herself as a hand packer but one who cannot lift more than 5 kilograms and cannot reach above shoulder height because of a shoulder injury. She would be presenting herself for work that is not “suitable employment”.
61 Even within the Recovre report itself, there are references to weights that do not “typically exceed five kgs”. So does that really mean that at times they will exceed that limit?[27]
[27]DCB 135
62 It ignores her chronic pain to suggest she would be able to carry out such a job requiring repetitive arm functions with the organic limitations of shoulder and upper arm movement that have been recorded as late as 2016 in the Royal Melbourne Hospital documents.
63 The third suggested alternative job was a lifestyle and leisure assistant in an aged-care facility. Again, a generic weight range is put on such work which is a lifting maximum of 22.7 kilograms and a frequent lifting in carrying maximum 11.3 kilograms.[28] The demands of this job, when examined with the plaintiff’s language and in particular computer skills in mind, are well beyond her capacity.[29] When the demands of the job were explained to her, I accept her evidence that she could not perform them was an accurate assessment by her.[30]
[28]DCB 120
[29]DCB 119
[30]T76 – 77
64 Turning to the doctors, there are a number of reports from the general practitioner, Dr Aranda. They are only of limited assistance as to work capacity. His 2015 report stated she was unable to continue her previous work, but that comment is in the context of both the left shoulder problems and her bilateral wrist symptoms.[31] In February 2014, he commented on capacity for work by saying she could not work, but it was because of chronic shoulder and wrist pain.
[31]PCB 43
65 What is of assistance is that he was clearly talking about a physically-based problem in the shoulder, as he recommended in the 2016 report that she needed further hydrotherapy. His patient had obviously continued to suffer shoulder pain to the point where he was describing it in 2016 as chronic. Given the years of treatment she had undergone, on the probabilities, this supports the view that it will continue for the foreseeable future.
66 The treating surgeon, Mr Clifford, commented very recently on capacity for work in June 2016. He noted symptoms in other areas but he found clinical signs of restriction and examination of the left shoulder which he had operated on earlier. His opinion was specific to the shoulder when he said:
“I will confine my remarks to the areas which I have been involved in. This patient has had some tendinosis with partial tearing of her supraspinatus tendon, quite consistent with repetitive lifting duties that she performed during her occupation. This has left her with an ongoing problem which has not been relieved completely by the subacromial decompression. This procedure is only to try and relieve her symptoms, but not change the tendinitis itself. At review, she remains disabled from this situation and would be able to be involved only in lighter duties which did not require lifting more than five to ten with no overhead activities. This situation is likely to be permanent in this patient.”[32]
[32]PCB 116
67 I accept this opinion from the treating surgeon, who is best placed in my opinion of all the doctors to comment on his patient’s capacity for work. Given that opinion and her age, education in English, skills and work experience, his opinion, when looked at against the realities of the labour market, supports my finding that she has no realistic capacity for suitable employment.
68 Associate Professor Goldwasser, orthopaedic surgeon, saw her in a medico-legal capacity in 2015 and 2016. He noted other health problems but found restricted left shoulder movement and tenderness unchanged from 2015 to 2016.[33] As to work capacity, he made this comment as to her left shoulder alone, that is absent the other injuries:
[33]PCB 89
69 “Mrs Jorquera’s capacity for work has been significantly affected and I consider she would not be capable of pre-injury duties. I consider she would not be capable of duties requiring vigorous use of her left shoulder with repeated reaching activities, repeated lifting, and she is unlikely to cope with lifting more than 5 kgs. She is unlikely to manage frequent repetitive movements of her left shoulder.”[34] He concluded by saying rather gloomily:
“I consider Mrs Jorquera’s left shoulder condition is likely to remain much the same in the foreseeable future.”[35]
[34]PCB 92
[35]PCB 93
70 He had the benefit of seeing her twice and comparing findings. I accept his opinion. It amounts to a manual worker with limited language having no realistic capacity on the open market for work. A worker aged fifty-nine who has to present to an employer for essentially manual work but does not have the capacity to lift more than 5 kilograms, a very light weight, nor to repeatedly lift and reach, does not have any capacity that is more than theoretical.
71 Dr Peter Blombery, consultant physician, saw her on one occasion at the request of the plaintiff’s solicitors in 2016. He pointed to a delay by WorkCover regarding approval of treatment and that affected her recovery. The treatment that was delayed was obviously all directed towards a physical injury. He found she had reduced movement, such as there was a suspicion of a frozen shoulder condition being present.[36] He thought a pain syndrome was responsible for some of the pain due to sensitised nerve pathways. In case there was any doubt about it, he concluded his report by saying the injuries, including the left shoulder, were physical in origin and not psychiatrically-based.
[36]PCB 99
72 He gave quite a pessimistic opinion as to her future:
“Her prognosis for recovery from the chronic pain in the shoulder is relatively poor at this stage in view of its duration of symptomology and it is unlikely to change significantly in the foreseeable future.”[37]
[37]PCB 100
73 He thought there was a marked impact on her capacity for work, but it is probably a comment coming in a context of both wrist and shoulder problems.
74 Chronic shoulder pain on all the evidence in this case is a factor that must bear negatively on a person’s capacity to undertake employment involving manual tasks.
75 Dr J Rowe, a specialist occupational physician, also saw her in 2016. He reported on the left shoulder and the wrists. He recorded she still had shoulder pain and lack of mobility. At examination, he recorded what I consider significant objective signs of organic injury. He found she had wasting of the left shoulder girdle as well as the left upper arm.[38]
[38]PCB 128
76 He also recorded limited shoulder movement. He thought the prognosis was poor. He commented on work capacity but in regard to “injuries” plural, that is, wrists and left shoulder impairments. However, he did go on to comment on capacity in relation to the shoulder impairment alone:
“She is fit for alternative or modified duties that do not involve above shoulder movements and lifting with any strength. She could not lift above shoulder more than 5 kgs.”[39]
[39]PCB 129
77 He also recorded limited movement in the left shoulder.
78 Turning to the medical evidence relied on by the defendant, a report from Dr P Kornan, psychiatrist, which is now more than four-and-a-half years old, was tendered.[40] It does not assist me in the task of judging consequences now. It was tendered because back then, the plaintiff said that she could do respite care if there was no lifting.
[40]DCB 14 – 21
79 A second psychiatrist report from Dr R Prytula was also tendered by the defendant. This was because of what the plaintiff said about difficulties with sleeping because her arms were heavy.[41] Again, this report does not advance this application one way or the other. He thought she had some mixed anxiety and depressed mood. Without hearing from this doctor, he did not seem to say that this left shoulder condition was not a physically-based injury. Reading his report, it just seems to be part of the mix for the plaintiff in terms of what he described as a mild psychiatric condition which had a reasonable prognosis and was causing no incapacity for work.
[41]DCB 68
80 A more recent report was tendered by the defendant from Mr R Simm, orthopaedic surgeon, who saw the plaintiff once in 2016. He adopted some job suggestions from an NES vocational report that is now three years old. This of course predates the surgery and does not assist in judging earning capacity now in 2016. This surgeon clearly saw an organic basis for the plaintiff's complaint and he referred to pathology and impingement.[42]
[42]DCB 87
81 As to his evidence of the more current job suggestions made by Recovre, I repeat the criticisms I have made of that vocational assessment report. In a very short letter, he did not go into any analysis of the various job suggestions made by Recovre but just seemed to adopt them. His reasoning is hard to follow and is not explained when one looks at the particular demands of those various three suggested jobs. I have already discussed some of these particular demands.
82 He set out the matters to be taken into account with respect to “suitable employment” but on reading his report, he did not seem to have assessed those when coming to an opinion about the suggested jobs. Nowhere does he take into account her age. I reject his own opinion that her English was “without any difficulties”. He does not, in my opinion, take any real account of her computer skills are in relation to these suggested jobs. I do not accept his opinion that the plaintiff has the capacity for any of them based on this one consultation. He also did not take account of the fact that she is in constant chronic pain.
83 The defendant tendered medical records and other documents from the general practitioner, exhibits 2, 3 and 4. The purpose of these was, to some extent, a limited credit attack by her referring to complaints about other health problems absent the left shoulder. The plaintiff readily admitted she had these other problems in the past. On closer examination of the medical notes, they do not take this application anywhere.
84 I was taken to an entry on 4 May 2016 where no reference was recorded as to the left shoulder. The entry immediately prior to that on 15 April 2016 referred to the left shoulder causing “more burning pain”.[43]
[43]Exhibit 2
85 I do not accept any of these three exhibits impact adversely on the plaintiff’s credit nor provide any evidence indicating the plaintiff does not presently suffer from a painful and limited left shoulder impairment that is permanent. It goes without saying that caution needs to be exercised when reliance is placed on brief notes and records when the doctor has not been called.
86 For the reasons described, I find on the probabilities the plaintiff has established that she has no capacity for suitable employment when the evidence is looked at realistically.
87 I grant leave to bring proceedings for pecuniary loss damages and it follows for pain and suffering damages also.
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