Jovanoska v Betta Foods Pty Ltd
[2009] VSCA 98
•18 May 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3721 of 2008
| VASILKA JOVANOVSKA | |
| Appellant/Plaintiff | |
| v | |
| BETTA FOODS PTY LTD | First Respondent/First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Respondent/Second Defendant |
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JUDGES: | DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 February 2009 | |
DATE OF JUDGMENT: | 18 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 98 | |
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ACCIDENT COMPENSATION – Application under s 134AB(16)(b) Accident Compensation Act 1985 – Injury to right shoulder and elbow – Alleged ‘serious injury’ by impairment to right arm – Reliability of opinions affected by inaccurate histories – Force of admissions affected by inaccurate information in compensation claim forms – Application refused in County Court – Appeal under s 134AC Accident Compensation Act 1985 – Court not satisfied that appellant suffered ‘serious injury’ arising on or after 20 October 1999 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J R Moore QC Ms M Taaffe | John Dellios & Associates |
| For the Respondents | Mr J Ruskin QC Mr J P Gorton | Wisewoulds |
DODDS-STREETON JA:
I have had the advantage of reading in draft the reasons for judgment of Williams AJA. I agree with the disposition proposed by her Honour for the reasons she gives.
WEINBERG JA:
I agree, for the reasons given by Williams AJA, that this appeal should be dismissed.
WILLIAMS AJA:
The appeal
This is an appeal from the refusal by a County Court judge of an application by the appellant (‘Ms Jovanovska’) under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’).
Ms Jovanovska had applied for leave to commence proceedings against the first respondent (‘Betta Foods’) for damages for pain and suffering in respect of an impairment to her right arm. She claimed that her right arm injury arose in the course of her employment with Betta Foods on or after 20 October 1999 and was, at the time of the County Court application, a ‘serious injury’ under s 134AB(37) of the Act.
On 17 February 2003 when Ms Jovanovska stopped working for Betta Foods, s 134AB(2) of the Act, provided:
(2)A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999.
The insurer had accepted claims for compensation made by Ms Jovanovska in relation to injury to her neck, elbows and shoulders. A medical panel had assessed her resulting level of impairment under s 104B of the Act at 12% on 10 January 2006.
Section 134AB(16)(b) provided that leave was required to commence proceedings in those circumstances:
(16)If the assessment under s 104B … of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless- …
(b) a court … gives leave to bring the proceedings.
Under sub-s (19) of s 134AB, a court was not to give leave under sub-s (16)(b) unless satisfied on the balance of probabilities that her injury was a ‘serious injury’.
‘Injury’ was defined in s 5(1) as follows:
"injury" means any physical or mental injury and without limiting the generality of the foregoing includes— …
(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;
‘Serious injury’ was defined in 134AB(37):
serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
Section 134AB(38) provided further guidance in relation to the determination of an application under sub-s (16)(b):
(38)For the purposes of the assessment of serious injury in accordance with subsections (16) … -
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
Section 134AB(38)(h) dealt with the psychological or psychiatric consequences of a physical injury as follows:
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
Under s 134AB(2), as it stood up to 3 December 2003, an injury which arose in the course of employment was compensable if it were serious and if work had been a significant contributing factor to its occurrence.[1] A compensable injury might be discrete or by way of aggravation of a pre-existing injury. An injury was to be differentiated from the consequence of injury.[2] It was critical for Ms Jovanovska to identify compensable injury arising out of her employment after 20 October 1999 and not before it.[3]
The alleged serious injury
[1]The words ‘employment of that nature was a significant contributing factor’ were removed from s 134AB(2) by s 3(8) of Act No 95 of 2003 as from 3 December 2003.
[2]Grech v Orica Australia Pty Ltd (2006) 14 VR 602, [2] (Chernov JA) and [55] (Ashley JA).
[3]Barwon Spinners Ltd v Podolak (2005) 14 VR 662, 631 [13] (Ormiston, Chernov and Phillips JJA).
Ms Jovanovska relied upon the injury particularised in her proposed County Court statement of claim as right and left lateral epicondylitis (or ‘tennis elbow’) and right and left shoulder injury including tendonitis and a partial tear of each rotator cuff. Her left shoulder and elbow injuries were alleged to have been consequences of overuse following her right shoulder and elbow injuries. She did not rely upon other alleged injuries to her neck and by way of carpal tunnel syndrome.
Whilst Betta Foods concedes that Ms Jovanovska suffered injuries to her right elbow and shoulder in the course of her employment, it denies that they arose on or after 20 October 1999. It contends that neither of the injuries is properly described as a ‘serious injury’ and argues that they cannot be aggregated as an injury to her right arm.
There was some discussion before us as to whether Ms Jovanovska had previously alleged that her injury was discrete or one arising by way of aggravation of a pre-existing injury.[4] I will consider the matter on both bases, as that is the way it seems to have been put below,[5] even though the learned judge ultimately noted that the case ‘was not put as one of aggravation’.[6]
[4]T 29 (25) - T 30 (4).
[5]T 16 (14-18) and T 92 (6-10) (7 November 2007).
[6]Vasilika Jovanovska v Betta Foods Australia Pty Ltd & VWA [2008] VCC 0002, [89] and T 92 (6-10) (8 November 2007).
The appeal is brought as of right under s 134AC of the Act. It is governed by s 134AD:
134AD Hearing of Appeal
On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.
In Dwyer v Calco Timbers Pty Ltd[7] the High Court held that in an appeal the Court must decide for itself whether there is a serious injury, stating:
… Where it operates, s 134AD does so despite anything to the contrary which might be deduced from s 74 of the County Court Act or from House v The King. Barwon Spinners should not be accepted as providing a proper guide to the construction of s 134AD.
The classification of an injury as a "serious injury" within the meaning of [the Act] is a conclusion drawn from the facts disclosed by the relevant evidence, and after any resolution of disputed facts; it involves the application by the court in question of the statutory criterion of ‘serious’ to the facts as found.[8]
[7](2008) 234 CLR 124.
[8](2008) 234 CLR 124, [41]-[50] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
The Court is not required by s 134AD to find an error on the part of the primary judge and the appeal is not a re-hearing of the conventional kind considered by the High Court in Fox v Percy.[9] The findings of fact and the decision below should both be put aside and the Court must decide for itself whether a serious injury has been sustained. It may be assisted by the primary judge’s identification of material relied upon by the parties in relation to a credibility issue.[10]
[9](2003) 214 CLR 118.
[10]Church v Echuca Regional Health [2008] VSCA 153, [124]-[125] (Ashley JA).
Conclusion
I am not satisfied that the learned County Court judge erred as Ms Jovanovska contends. I, too, am persuaded that the application for leave should be refused because she has failed to establish that she suffered a compensable ‘serious injury’, as defined by s 134AB (37) of the Act, on or after 20 October 1999.
I will now explain my decision with reference to the facts and my conclusions as to the submissions in the appeal.
The facts
Ms Jovanovska was born in Macedonia in 1955. She completed eight years of school there before starting work on the family farm. She came to Australia in 1975 as an unskilled worker and has difficulty speaking, understanding and reading English. From 1975 to 1978, she stayed at home raising her three children. She then worked as a packer in a plastics factory for a year. She spent the years from 1980 to 1988 at home, before starting work with Betta Foods in 1989.
At Betta Foods, from 1989 to about October 2000, when she was moved to lighter duties, she packed snowballs, marshmallows, wafers and ice-cream cones into boxes, taking them from a conveyor belt. Her work was repetitive and involved lifting heavy boxes onto pallets sometimes two metres high, as well as continuous bending and stretching of her arms and shoulders with her neck in a flexed position. From 1996, Ms Jovanovska experienced painful arms, shoulders and elbows.
Dr Ilias Giaprakis of the Edgars Road Medical Centre (‘the Medical Centre’) was Ms Jovanovska‘s general practitioner from 1997, and she had been a patient of the Medical Centre from January 1980. Sometimes her pain was worse than on other occasions and it was then that she consulted her doctor.
The Medical Centre Notes
The Medical Centre’s notes are very significant, in terms of the requirement of proof of injury arising on or after 20 October 1999, and they relevantly record that:
(a)on 30 September 1996, she complained of painful right and left elbows, was prescribed Voltaren and given four days off work;
(b)in April 1997, she attended with painful elbows (‘lateral epicondyle’) and she was given four days off;
(c)in June 1997, she complained of painful arms (‘overworked at Betta Foods’) and had one day off work;
(d)early in September 1997, she had a day off work in relation to ‘painful arms and elbows’;
(e)later in September 1997 she had ‘sore arms’ and was tired;
(f)in April 1998, she said that she had suffered from painful shoulders for two months all day whilst working (‘packer on production line’) and was off work for two days;
(g)on 2 February 1999, she had two days off and complained of right arm pain for a few months (reference to ‘elbow shoulder hand forearm’);
(h)on 9 August 1999, she said that she still had painful shoulders and arms and had been suffering from them for about 18 months; (‘she is a packer lots of work’); she had two days off work;
(i)in September 1999, she complained of having painful arms and that she could not lift above her shoulders;
(j)in January 2000, she took another two days off, having told the doctor that she had been suffering from painful elbows and forearms for the previous 12 months;
(k)on 1 February 2000, she complained of painful elbows and forearms which she felt were “from work” and was given two days off work;
(l)on 26 April 2000, she said she had painful elbows and forearms and had two or three days off (the note is difficult to decipher) ;
(m)in July 2000, she referred to painful shoulders for a few months and was given two days off work;
(n)in August 2000, she had one day off (‘Classical R lateral epicondylitis overworked at work [with] machine’).
In the County Court, Ms Jovanovska conceded that she had suffered some occasionally worsening pain in her arms at work occasionally from 1996 onwards; she had experienced painful arms, shoulders and elbows and had sought treatment from Dr Giaprakis when it did worsen. Otherwise she had put up with it.[11]
[11]T 46 (19-26) (8 November 2007).
In July 2000, Ms Jovanovska reported right elbow pain to her manager at Betta Foods.
Dr McMahon
On 12 October 2000, she attended on the company doctor, Dr HJA McMahon. She complained of elbow pain, reporting right elbow pain for the previous three months aggravated by the repetitive duties of her job as a packer. Dr McMahon diagnosed tennis elbow and caused her to move to alternative duties, packing wafers.
Dr McMahon referred her to the orthopaedic surgeon, Mr Richard Freeman.
Mr McGrath
From November 2000, Ms Jovanovska attended Lalor Physiotherapy Centre and was treated by Mr Justin McGrath. She gave a history of first experiencing right elbow pain during August 2000, without any precipitating event or injury. She was off work between 5 December 2000 and 5 January 2001.
Mr Richard Freeman
The orthopaedic surgeon, Mr Richard Freeman, saw her on or about 5 December 2000, on referral from Dr McMahon. She reported pain developing over the lateral aspect of her right elbow whilst packing in August 2000, but no precipitating specific injury. Mr Freeman agreed with Dr McMahon’s diagnosis. He arranged x-rays and an ultrasound of Ms Jovanovska’s right elbow and offered an injection of local anaesthetic and cortisone which she declined.
Also on 5 December 2000, Ms Jovanovska made a claim for weekly payments and medical and like expenses under the Act in respect of an injury to her right elbow. The claim form referred to pain in her right elbow and arm caused by repetitive movement of the arm. Significantly, it stated that the injury occurred on 7 August 2000 and that this was also the date upon which she first became aware of it. The form also said that she had not had any previous pain or disability in the area of the injury. Her claim was accepted.
On 14 December 2000, Ms Jovanovska was reviewed by Mr Freeman. He said that x-rays and ultrasound of right elbow performed on 7 December 2000 were unremarkable and did not show any calcific deposit or particular swelling. He discharged her back to Dr McMahon’s care, stating:
I would therefore conclude that the condition is mild and should be treated on the merits of the symptoms.
Between 4 and 18 February 2001, Ms Jovanovska had two more weeks off work for left elbow and wrist problems, at the request of Mr McGrath, the physiotherapist. She had physiotherapy treatment for those problems from March 2001 and was away from work again between 5 March 2001 and 8 April 2001.
On 13 March 2001, she made another claim for weekly payments and medical and like expenses under the Act, this time in respect of injury to her left elbow. The claim form described the injury as ‘due to overuse of (L) arm due to protecting already injured (R) elbow’ and recorded it being incurred, first noticed and reported on 7 December 2000. Ms Jovanovska stated in the claim form that she had not had previous pain or disability in the area of the injury. This claim was also accepted.
She had further time off work from 23 April to 3 June 2001. In June 2001, her hours on the wafer machine were reduced to three a day, three days a week. She was packing wafers from a bench, rather than a line, and the work was self-paced.
Dr David Barton
Ms Jovanovska saw Dr David Barton, an occupational physician, on 13 June 2001 at the request of the insurer. He took a history of:
(a)right elbow pain which Ms Jovanovska related to her ‘heavy and quick’ packing work;
(b)her not reporting the pain and (contrary to Dr Giaprakis’ clinical notes) first consulting her doctor around August 2000;
(c)pain in her left fingers and forearm up to the elbow developing after a December 2000 change to lighter duties; and
(d)pain in both arms and, specifically, in the right elbow, left fingers and forearm.
Dr Barton concluded that she had some features suggestive of mild lateral epicondylitis of the right elbow which did not appear to be particularly disabling. He did not think her left sided symptoms made ‘any medical sense’ or pointed to any particular injury. He thought she was capable of participating in a graduated return to work program and did not think any particular medical treatment was required.
In the second half of 2001, attempts were made to increase Ms Jovanovska’s hours and to add to her duties. She considered herself incapable of more or different work and refused to consider increasing her hours when she saw Dr McMahon on 7 September 2001.
Dr McMahon last saw her on 12 October 2001 when she was complaining of right hip, left wrist, left neck, as well as right elbow pain. She was cleared to try four hours of light duties on alternate days.
Ms Jovanovska was off work again between 7 and 9 November 2001 and returned to the Medical Centre in November 2001. She felt that her condition had not improved and that she was unable to increase her hours. Dr Giaprakis found tenderness of the elbows and reduced arm strength and neck movements and ‘tenderness of her cervical spinal movements’. He advised continued restricted duties and hours.
On 15 November 2001, Ms Jovanovska’s cervical spine was x-rayed. Mr McGrath summarised the radiologist’s report as one of ‘mild left cervico-thoracic scoliosis’. Mr Peter Kudelka, an orthopaedic surgeon, later thought that the x-ray as demonstrated minor age consistent degenerative changes.
Dr Andrew Miller
On 4 December 2001, Dr Andrew Miller, an occupational health consultant, saw Ms Jovanovska at the insurer’s request. He noted her denial of any relevant personal medical history and any previous injury to her elbows. She gave him a history of :
(a)gradual onset of aching pain in the elbows doing very repetitive packing in Betta Foods’ cone section in August 2000; and
(b)episodic aching pain in both elbows, left upper arm and neck, weakness in both arms and neck stiffness.
Dr Miller diagnosed chronic strain injury of the common extensor origin of both elbows and considered her employment to be a significant contributing factor in the absence of other possible causes. He thought her capable of working with restrictions on lifting in excess of 5 kgs, avoidance of repetitive use of her hands and elbows and prolonged firm gripping with either hand. Dr Miller expected her to be capable of returning to full time pre-injury duties within two or three months.
In a supplementary report of 13 December 2001, Dr Miller recommended that Ms Jovanovska’s claim in relation to her neck be rejected.
Mr McGrath gave Ms Jovanovska physiotherapy treatment for her neck problems from December 2001.
Throughout 2002, she continued to work three hours three days a week on the wafer machine.
Mr Jonathan Hooper
On 28 August 2002, Ms Jovanovska saw Mr Jonathan Hooper, an orthopaedic surgeon, at the insurer’s request. He took a history of:
(a)pain developing in her right elbow region in October 2000;
(b) pain persisting in the context of continued light work ; and
(c)pain in both shoulders, left arm and right wrist.
Mr Hooper found that she had a full range of movement in her shoulders and elbows. He concluded that her shoulder pain probably came from her cervical spine and that she had a mild tennis elbow on the right side. These conditions had been aggravated but not caused by her work. He thought her capable of alternative work and increased hours, being of the view that if she got back to her previous repetitive work, her symptoms would persist. He thought that she would have some degree of permanent impairment due to her underlying pathology aggravated, but not caused, by her work.
Dr Amanda Sillcock
On 18 September 2002, Ms Jovanovska saw Dr Amanda Sillcock, an occupational physician, at the insurer’s request. She took a history of:
(a)gradual onset right elbow pain developing in around August 2000;
(b)left elbow pain in December 2000; and
(c)pain in her neck and shoulders for no specific reason by September 2001; and
(d)hand and wrist pain since September 2001.
Dr Sillcock concluded that the injury had started as right lateral epicondylitis and spread to her left arm and wrists and the side of her neck in a way she thought fairly typical of occupational overuse injury. Dr Sillcock found some clinical indications of carpal tunnel syndrome. She believed that her very repetitive work would have been a significant contributing factor.
She was again absent from work from 21 to 27 September 2002.
On 15 November 2002, Ms Jovanovska underwent x‑rays of her cervical spine which showed minimal degenerative osteophytic lipping at C5/6 level and a small separate ossicle.
Mr Peter Kuldelka
It was in December 2002 that Dr Giaprakis referred Ms Jovanovska to the orthopaedic surgeon, Mr Peter Kudelka. In a 2 December 2003 report to her solicitors, Mr Kudelka recorded a history that:
(a)in October 2000, she had gradually felt neck and first left and then right shoulder pains; and
(b)she had been off work for three months in 2001, before returning to light duties for three hours a day, three days a week.
Mr Kudelka thought that Ms Jovanovska had work aggravated degenerative changes in her cervical spine and shoulder muscles. He concluded:
In summary I felt the patient had work aggravated degenerative changes in the cervical spine and shoulder muscles. This caused neck pain and stiffness and pain, weakness and restricted movement of the shoulders. She was unfit for repetitive manual factory work and would probably remain unfit in the future. …
I do believe that here is a slight work related contribution to an age related impairment to her neck and shoulders, as she worked at the factory for 13 years. The non work-related factors are the degenerative factors seen radiologically in the cervical spine.
On 10 December 2002, Mr McGrath reported to the Accident Compensation Conciliation Service that Ms Jovanovska had first experienced right elbow pain in August 2000, that there was no specific event and that she had begun to experience similar symptoms in her left elbow and wrist in February 2001.
Dr Giaprakis’ 16 December 2002 report
In a 16 December 2002 report to the insurer, Dr Giaprakis relevantly noted that :
(a)Ms Jovanovska had complained on 15 April 1998 of two months’ pain in her shoulders related to the nature of her work;
(b)she had attended the Medical Centre in August, September and October 1999 with similar symptoms and was considered to have had musculo-ligamentous strain requiring conservative treatment with days off, creams and tablets;
(c)she had complained in January 2000 of bilateral elbow pain and was considered to have bilateral epicondylitis;
(d)she had attended the Medical Centre several more times in 2000 for the epicondylitis which was managed in the same way;
(e)she had been referred to the company doctor on 30 May 2001, treated with physiotherapy treatment and transferred to light duties; and
(f)there had been an unsuccessful attempt in February 2002 to increase her hours.
Dr Giaprakis said that Ms Jovanovska’s condition had remained much the same throughout 2002 and that she had experienced constant neck and bilateral shoulder pain. He attributed her neck strain and epicondylitis to her ‘long term duties as a packer at Betta Foods’.
The respondent criticises Dr Giaprakis’ report as not presenting the true picture of Ms Jovanovska’s attendances and treatment revealed by his clinical notes. I agree with that criticism. The matter is significant because this report was amongst the materials provided to a number of doctors who subsequently saw her.
Ms Jovanovska finally ceased work, on advice from Dr Giaprakis, on 17 February 2003. She has not worked since.
On 26 March 2003, she returned to Mr Hooper at the insurer’s request. This time she gave a history of developing pain slowly in her right elbow on about 7 August 2000, without any specific accident or injury. Mr Hooper expressed the opinion that she might have bilateral carpal tunnel syndrome which should be investigated. He went on to say:
She has also non specific shoulder/arm pain which may be attributed to her repetitive work, but there is a significant emotional component to her physical disability and because of this I would be very guarded about her ultimate prognosis and I would also be very guarded about offering her surgical treatment for her carpal tunnel syndrome at this time.
…
The x-rays of her cervical spine are normal and although it may be that she has bilateral carpal tunnel syndrome, and this needs to be investigated, I think there is a significant emotional component to her pain syndrome.
I think it can be argued that her repetitive work has aggravated her condition and she should be able to get back to work that does not involve rapid or repetitive work and ever [sic] effort should be made to encourage her to do this.[12]
[12](Emphasis added).
On 13 August 2003, Ms Jovanovska had nerve conduction studies performed on her arms. These were normal.
On 20 October 2003, she made a claim for compensation under s 98C of the Act in relation to permanent impairment in respect of injury to her arms, shoulders, neck, as well as for psychiatric injury. The claim form stated that she first became aware of the injury on 7 September 2001 and, in relation to its occurrence, the words, ‘repetitive work over time’ appeared.
On 31 October 2003, she underwent a CT scan of her cervical spine. This revealed mild facet osteoarthropathy, particularly to the left C3-4, and early mid cervical degenerative changes without lateral disk herniation.
Ms Jovanovska’s s 98C claim was accepted by the insurer on 19 January 2004, in relation to her neck and arms (bilateral epicondylitis) and psychiatric injury, and eventually, on 26 May 2004, in relation to shoulder injury.
Dr Nitin Dharwadkar
On 2 February 2004, Dr Nitin Dharwadka, a psychiatrist, saw her at the respondents’ request. She gave a history of:
(a)work as a packer with Betta Foods for 13 years;
(b) an injury to her right elbow on 7 August 2000;
(c) pain in her left elbow later in 2000; and
(d)pain starting in her neck in 2001.
Dr Dharwadka found no clinical psychiatric condition and did not recommend any psychiatric treatment. He did refer to her ‘symptoms of chronic pain’. He considered her fit for any suitable duties her physical condition would allow.
On 19 February 2004, Ms Jovanovska had x-rays of both shoulders which revealed that the shoulders were unremarkable and that there was no rotator cuff calcification, bony injury, bone destructive lesion or arthritis to be seen.
Shortly afterwards, she had ultrasound examinations of her right shoulder on 24 February and her left shoulder on 25 February. Dr I Clare, the radiologist, reported a suggestion of a minor calcific tendonopathy at the subscapularis insertion into the lesser tuberositiy of the left shoulder and an area of tendonopathy or small chronic partial tear at the supraspinatus insertion. In relation to the right shoulder, Dr Clare also reported findings suggesting tendonopathy or a chronic partial tear of the rotator cuff.
Dr Graeme Symington
On 26 February 2004, Ms Jovanovska was examined by Dr Graeme Symington, a neurologist, at the respondents’ solicitors’ request. He took a history of:
(a)right elbow pain, starting in 2000, even though her work duties had not altered;
(b) subsequent pain in the left elbow, increasing to involve the entire upper left limb including the shoulder;
(c)‘a lot of pain in the neck’ after a return to light duties in September 2001; and
(d)pain in both shoulders, leading to her inability to continue at work;
(e)current pain in the entire left arm, neck and shoulders, as well as her right elbow and wrist; and
(f) the injury developing as the gradual effect of repetitive work, heavy lifting and the need to bend and twist.
Dr Symington found no evidence of any neurologic basis for her possible elbow, shoulder or wrist injuries, although a developmental non work-related cervical rib condition might be playing a part in her persistent symptoms. Dr Symington concluded that she probably had a current work capacity although the possibly symptomatic cervical ribs would impact on it. He said:
I cannot find any firm evidence that this worker has any injury, work related or otherwise. She appears to have a diffuse regional pain syndrome involving left upper limb, shoulder girdle and right elbow and wrist regions. … she probably does have a current work capacity but the possibility of symptomatic cervical ribs would impact upon this capacity.
Dr Roy Karna
On 10 March 2004, Ms Jovanovska was examined by a Dr Roy Karna, a rheumatologist, at the request of the respondents. Dr Karna also took a history of:
(a)right elbow pain developing ‘seemingly in the general course of her duties in August 2000’, without a specific incident;
(b)three months’ absence from work between February and April 2001;
(c)pain involving the entire left arm from wrist to neck and shoulder girdle region, developing weeks after her return to work on lighter duties;
(d)neck pain developing by September 2001 and continuing when she was doing quality control type work with her neck flexed; and
(e)no improvement in her symptoms in the 12 months since she had stopped work.
Dr Karna reported as follows:
In specific response to your questions, the worker has alleged to have developed bilateral arm pain, initially commencing with the right elbow, but subsequently evolving into global pain involving entire left upper limb, neck and shoulder girdles, but it is only the right lateral epicondylitis lesion which I believe can be attributed back to her prior work and work practices. The remainder of her pain symptoms can best be put down to a ‘pain syndrome’ not organically based, but related to functional factors/psychosomatic factors/psychogenic factors. On structural musculoskeletal grounds she is capable of full time bench level process duties preferably self-paced and allowing posture changes as required.
I do not believe the worker has a neck injury work related or otherwise.
Ms Jovanovska’s employment was terminated in May 2004.
Mr Robert Carey
On 27 July 2004, Ms Jovanovska was examined by Mr Robert Carey, an orthopaedic surgeon, at the insurer’s request. Once again, she gave a history of:
(a)gradual development of pain in her right elbow, starting on 7 August 2000.
(b)pain throughout the left arm, neck and shoulders developing in December 2000;
(c)a change to light work, involving bending her neck down which she felt had been an aggravating factor;
(d) pain involving whole of the left arm, the back of her neck and posterolateral aspects and extending to both shoulders; and
(e)occasional left hand numbness.
Mr Carey concluded that Ms Jovanovska had developed right elbow lateral epicondylitis, with some apparent residual symptoms which clinical findings suggested had largely resolved. He thought that she had probably developed a neck strain injury with referred symptoms towards the shoulders and into the left arm and forearm. The neck strain injury had probably aggravated some inter-vertebral disc degeneration. There was no neurological complication. He also considered that strain associated with her work had probably aggravated what appeared to be degenerative changes in the rotator cuff.
Mr Carey’s clinical findings indicated to him that there was a non-organic component to her presentation.
Mr Peter Wilde
On 16 July 2004, Ms Jovanovska attended Mr Peter Wilde, an orthopaedic surgeon, at her solicitors’ request. Mr Wilde was provided with reports from Mr McGrath, Mr Kudleka, Dr McMahon and Mr Hooper, as well as Dr Giaprakis’ 16 December 2002 report.
Ms Jovanovska gave a history to Mr Wilde of:
(a)11 years work at Betta Foods without health issues;
(b)becoming aware of right elbow pain on 7 August 2000 which became more ‘dragging and troublesome’ over the day;
(c)the right elbow pain progressing and becoming more troublesome over time with repeated lifting at work leading to gradually worsening right elbow symptoms;
(d)similar more diffuse pain in the left arm, seeming to emanate from the neck, resulting from her favouring her left arm;
(e)increasing neck and left arm symptoms with continued work on the production line for two years;
(f)current neck symptoms with referral into her left arm in a diffuse, globalised manner and extending down into the wrist and hand with intermittent numbness over the fingers; and
(g)having rated her neck pain as the most significant of all.
Mr Wilde was prepared to accept that the repetitive nature of Ms Jovanovska’s work had contributed to the onset and perpetuation of her symptoms. He said:
No doubt, she did suffer with pre-existing cervical spondylosis but her work aggravated this diagnosis and produced symptoms over 18 months to two years. In a similar fashion degenerative changes of her shoulders has been aggravated by work and she has now developed symptomatic rotator cuff tendonitis and thirdly, I believe her right tennis elbow has been promoted by the tasks of her work.
He thought Ms Jovanovska incapacitated for all aspects of her pre-injury work, because of the need to accommodate her condition with restrictions preventing bending, lifting, twisting and lifting of weight above waist height.
By 26 July 2005, when Ms Jovanovska swore her first affidavit in support of her application, she had made no further attempts to seek employment; she did not think she would be able to find work which did not require use of her arms and she had no training for other than manual work. She was suffering pain and limitation in the use of both her arms and her neck. The severity of the pain depended upon which arm she favoured, but her dominant right arm caused her the most trouble. She was having difficulty performing many household duties and tried to avoid ironing, vacuuming, mopping and cleaning pots and pans. She could do light laundry and cooking and light gardening. She drove for short distances and could carry shopping bags for light or small items. She was very frustrated by her inability to work, always having been a hard worker and having loved her job. Her sleep and her sexual activities had been affected, as had her ability to enjoy dinner dances and normal cooking and gardening. She had good days and bad days when she was unable to do anything because of pain in her arms and neck.
On 15 May 2006, Ms Jovanovska returned to Mr Hooper and he reported that she resisted examination of her shoulders and elbows. He concluded that she had evidence of age-related degenerative disease of the neck, shoulders and elbows, all of which had been aggravated but not caused by her work which now could not necessarily be still regarded as a significant contributing factor to her invalidity.
Mr Hooper thought that her condition had stabilised, she could be regarded as having no work capacity and she would be left with some degree of permanent discomfort in her arms, attributable to her underlying pathology and emotional response to her pain problem.
On 4 June 2007, an MRI of Ms Jovanovska’s right shoulder and cervical spine revealed:
(a)moderate diffuse tendonosis of the right shoulder without a discrete tear, minor subacromial bursitis;
(b)mild oedema of the inferior glenohumeral ligament which could be a manifestation for adhesive capsulitis;
(c)mild cervical scoliosis; and
(d)mild multi level cervical spondylosis, without neural compromise.
Mr Kevin King
On 5 June 2007, Ms Jovanovska saw Mr Kevin King, an orthopaedic surgeon, at the request of her solicitors. He, too, received a number of reports, including Dr Giaprakis’ report of 16 December 2002.
Mr King took a history of:
(a)intermittent mild symptoms in both elbows and shoulders and some aching and discomfort in the neck which she had begun to notice in the mid-1990s;
(b)a report of mild symptoms to Dr Giaprakis on 15 April 1998;
(c)worsening aches in early 2000 in the right elbow and shoulder, neck, left shoulder, and later the left elbow;
(d)severe right elbow pain in July 2000 making it difficult to manage her job and a report of symptoms to her supervisor; and
(e)current mild to moderately severe symptoms of constant nagging ache on the outer side of the right elbow, persisting nagging ache in the right shoulder, fluctuating in intensity, constant nagging ache in the neck aggravated by fatigue and by head and neck movements and similar mild symptoms in the left shoulder and elbow.
Mr King found no significant functional or psychological overlay. He stated his views this way:
Accepting that she never had any problems of any sort prior to starting the job at Beta [sic] Foods in October 1989 and accepting that the symptoms began to come on gradually in the mid 1990s and eventually became of significant severity by July 2000, it seems reasonable to attribute the onset of bilateral tennis elbow, bilateral mild rotator cuff lesions of the shoulders and of mild neck pain and stiffness (due to aggravation of underlying and symptomless cervical spondylosis), to the effect of the work she was doing.
…
In terms of apportionment, I would attribute all of her problems in the shoulders and elbows to the work that she was doing from the late 1990s onwards, particularly from July 2000 onwards when the symptoms became quite severe.
Mr King subsequently answered questions confining his assessment to the injuries to Ms Jovanovska’s right arm between 20 October 1999 and 23 February 2003. He said:
… - confining my assessment to the injuries to her right arm including the shoulder and elbow, between 20.10.99 and 23.02.03, I believe her residual pain and overall disability arising from the right shoulder and elbow symptoms are enough to prevent her returning to work to her old, busy, active job on the factory production line in any capacity. She did have minor symptoms prior to 1999 but it is reasonable to regard the greater bulk of her impairment in the right shoulder and upper arm region as arising from stresses and strain to the right elbow and shoulder between 20.10.99 and 23.02.03.
Mr King did not think that the aggravating effects of work had subsided, attributing Ms Jovanovska’s continuing right arm problems to them.
Mr Kenneth Brearley
On 13 June 2007, Ms Jovanovska saw Mr Kenneth Brearley, another orthopaedic surgeon, at the request of her solicitors. He had also been supplied with a number of reports, including that from Dr Giaprakis on 16 December 2002.
Mr Brearley recorded a history of:
(a)feelings of discomfort and pain in the shoulders and down the arms starting in 1996 and of Ms Jovanovska seeing her doctor at the time;
(b)gradually worsening right arm pain, particularly at the elbow, which she reported at work; and
(c)left elbow pain, developing after being put on light duties in June 1991.
Mr Brearley concluded that, between 20 October 1999 and 23 February 2003, she had sustained a neck strain injury by way of aggravation of pre-existing degenerative changes, partial minor tears of both rotator cuffs, painful stiffness from bursitis developing in both shoulders and lateral epicondylitis of both elbows. He found her employment between those dates to have been a significant contributing factor to her arms and neck injury. She had been indefinitely incapacitated for pre‑injury work and had no current work capacity.
Mr Brearley was later to respond to question from Ms Jovanovska’s solicitors in a letter of 24 September 2007 as follows:
It is my opinion that the work-related injury to the right arm which includes the shoulder and elbow between 20th October 1999 and 23rd February 2003 and excluding any other physical or non-physical conditions, does cause [Ms Jovanovska] to be incapacitated indefinitely for her pre-injury work or for alternative work. Moreover the consequences of the work injury will persist for the foreseeable future.
Confusingly, given the history he had recorded in his early report, Mr Brearley said that Ms Jovanovska was ‘quite asymptomatic with regard to her right arm prior to doing the repetitive work between 20th October 1999 and 23rd February 2003’.
Dr Giaprakis’ 27 June 2007 report
On 27 June 2007, Dr Giaprakis reported Ms Jovanovska’s continuing complaints of neck, bilateral and elbow pain.
He answered a number of questions relating to her ‘arms and neck injury’ posed in her solicitors’ 12 June 2007 letter to him. He responded in the affirmative to the following query:
Whether employment on or about or between 20 October 1999 and 23 February 2003 when [Ms Jovanovska] was required to perform duties as a packer requiring constant repetitive use of her arms and shoulders with her neck in a flexed position involving lifting and bending and stretching and handling heavy boxes and trays of products was a significant contributing factor to our client’s arms and neck injury.
Mr Hooper saw Ms Jovanovska again on 2 July 2007, having, this time, sighted ‘medical history notes’ and WorkCover certificates. He referred to a history of complaints about her right hand in about 1996 and a 1999 complaint of left hand discomfort, affecting her neck and shoulders, and worsening pain while she kept working in 2000. He confirmed his previous opinion and remained of the view that there was a functional or emotional component to her invalidity[13] and that she probably had more use of her upper limbs and shoulders than she chose to demonstrate.
[13]Mr Hooper described this component as ‘significant’ in a final 15 August 2007 report.
Mr Hooper thought that Ms Jovanovska would be unable to return to work as her symptoms would not abate and she was convinced of her own invalidity. Mr Hooper believed her complaints were due to constitutional changes in her neck and shoulders aggravated by her work over her working life.
Dr Jack Wodak
On 14 August 2007, Ms Jovanovska saw Dr Jack Wodak, a neurologist, at the insurer’s request. He noted complaints of pain in her shoulders and arms in 1996 and the first mention of symptoms to her employer in 2000.
Dr Wodak also noticed Ms Jovanovska demonstrating a far greater range of movement in her neck when she was dressing than in response to formal commands. He found diffuse weakness in all muscles in the shoulders and upper limbs which he thought was clearly non-organic; this did not preclude simultaneous underlying organic disease, but made it more difficult to detect. He too found no neurological basis for Ms Jovanovska’s symptoms.
Dr Charles Castle
On 8 October 2007, Ms Jovanovska saw Dr Charles Castle, an occupational physician, at the request of her solicitors. He was given a number of reports including the one dated 27 June 2007 from Dr Giaprakis. There is no reference to Dr Giaprakis’ 16 December 2002 report by Dr Castle.
Dr Castle received a history of:
(a)minor right elbow and hand pain developing in 1996 and spreading to the right shoulder, but not preventing Ms Jovanovska from working full time;
(b)much worse right elbow pain radiating to her right hand and up to her right shoulder and neck, forcing her to stop work by 2000;
(d)a 2001 reduction to three hours work three days a week;
(e)current right arm, right hand, right shoulder and neck pain; and
(f)current similar left arm problems of lesser degree.
Dr Castle concluded that Ms Jovanovska suffered significant pain and restricted movement. She had no current work capacity and was unable to manage domestic and personal activities of daily living. Given her poor English and limited work experience as a packer, she was not fit for suitable employment.
Dr Castle responded to questions from Ms Jovanovska’s solicitors. He considered that her employment during the period between 20 October 1999 and 23 February 2003 was ‘a significant contributing factor to the development of her arms and neck injury’. He went on to say that her ‘initial injury occurred in 1999’.
On 21 August 2007, Ms Jovanovska swore a further affidavit detailing her physical condition and limitations. She continued to have pain in both her arms and her neck, worsened by activity, which continued to limit her daily activities and social interaction as before. She took the anti-inflammatory medication, Mobilis, once a day and Panamax when experiencing very severe pain.
She remained frustrated about being unable to work and to contribute as she had done before. She missed the work and her the company of her fellow workers. She noted her own unsuitability for other forms of work, because she had limited English and no computer, administration, office or sales skills.
Submissions and conclusions
Ms Jovanovska argues and Betta Foods accepts that, as a result of her employment with it, she developed tennis elbow and shoulder problems. She relies upon the continuous performance of process work to argue that her injuries arose as a result of an entire work process.
She maintains that she suffered physiological change, properly characterised as an injury to her right arm, after 20 October 1999.She submits that the nature and extent of that injury can be inferred from what, she argues, was a substantial increase in the level of her symptoms and some 16 weeks of absences from work after that date. [14]
[14]Citing Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602, [69] – [77] (Ashley JA).
Ms Jovanovska argues that it is permissible to aggregate the impairments to her right elbow and shoulder as a compensable injury in all the circumstances. She seeks to distinguish her situation from that in To Ha Lu v Mediterranean Shoes Pty Ltd and Anor[15] in which, she argues, the injury to an elbow and a shoulder arose separately in differing circumstances.
[15][2000] VSCA 65.
Betta Foods relies on Lu to argue that it would be impermissible to aggregate the impairments to Ms Jovanovska’s shoulders and elbows in the circumstances, maintaining that two separate body functions have been impaired in her case and that the relevant injuries arose at different times and in the course of her performing different duties.
Adopting the approach most favourable to Ms Jovanovska, I have considered whether she has established that she suffered a ‘serious injury’ on or after 20 October 1999 on the basis that the consequences of her right shoulder and elbow injuries could be aggregated and treated as impairments of the body function of her right arm. In light of my ultimate conclusion, however, it is not necessary to decide whether that aggregation would have been permissible on the facts of this case.
Ms Jovanovska submits that the Court should be persuaded that the evidence discloses that she did sustain alleged injury on or after 20 October 1999 and that it was not to the point that she might have suffered compensable injury before that date. She relies upon Dr Giaprakis’ affirmative response to her solicitors’ question as to whether work after that date was a significant contributing factor to her ‘arms and neck injury’, noting the absence of any attempt to cross‑examine the doctor whose opinion was given with knowledge of her medical history.
Ms Jovanovska also relies, in particular, upon the evidence of Mr King, Mr Brearley and Dr Castle as to the effects of her employment between 20 October 1999 and 23 February 2003. She notes that she told Mr King about symptoms from the mid 1990s, Dr Castle of pain developing in 1996 and Mr Brearley of feelings of discomfort and pain starting in 1996.
Betta Foods responds that Dr Giaprakis’ notes present quite a different picture from that painted for those doctors. The notes demonstrate Ms Jovanovska’s persistent and protracted complaints of symptoms in her elbows, arms and shoulders between 1997 and 1999 and absences from work. Mr King, on the other hand, was only told about mild intermittent symptoms which did not prevent her from working or interfere with her activities until 2000 and Dr Castle was informed of gradual onset of pain which became much worse by 2000 forcing her to stop work. The history in the clinical notes is also to be contrasted with those given of pain developing in August 2000 to Mr McGrath, Dr McMahon, Mr Freeman and Mr Wilde.
Betta Foods also points out that Ms Jovanovska told Mr Wilde that she had worked for 11 years, without health issues, and also informed Mr Kudelka of gradually feeling pain in her neck, shoulders and arms in October 2000. It contends that similarly inaccurate histories were given to the doctors Ms Jovanovska saw at its request and that of the insurer. It refers to her telling Dr Barton, Dr Miller, Dr Sillcock, Dr Karna, Mr Hooper and Mr Carey that she had noted gradual right elbow pain or symptoms in around August 2000.
Betta Foods is critical of Dr Giaprakis’ own accounts and contends that his 16 December 2002 report understated the extent of the complaints recorded in his clinical notes. It argues that Dr Giaprakis addressed the wrong question in his 27 June 2007 response to Ms Jovanovska’s solicitors, submitting that the relevant issue in this case was, rather, as to whether she had sustained compensable injury on or after 20 October 1999 and as to the consequences of that injury.[16]
[16]Citing Dalton v Dandenong Scaffolding Hire Company Pty Ltd [2003] VSCA 183, [49] (Ashley JA). See also, Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, [19] (Redlich JA).
I am satisfied that, in the course of her employment with Betta Foods from 1989, Ms Jovanovska did suffer injuries to her right elbow and shoulder and consequential injuries to her left arm particularised in her proposed statement of claim.
I agree, however, with the learned judge’s conclusion that the evidence does not establish that she sustained a serious injury, either by way of a discrete injury or aggravation or exacerbation of a pre-existing injury to her right elbow or shoulder on or after 20 October 1999.
Dr Giaprakis’ notes record Ms Jovanovska’s actual complaints and attendances, as well as her experience of symptoms in both arms and shoulders and absence from work before 20 October 1999. In so far as Ms Jovanovska relies upon the provision of his 16 December 2002 report to the experts upon whom she relies, I agree with Betta Foods that it understates the extent of the complaints recorded in the doctor’s clinical notes which she accepted as accurate under cross‑examination in the County Court.
I am not persuaded that the experts upon whose opinions she relies were sufficiently aware of her pre-20 October 1999 condition to reach reliable conclusions as to her condition both before and after that date or as to any injury suffered in the relevant period.[17] The respondents’ failure to cross-examine those who concluded she had suffered injury on or after the relevant date does not alter my conclusion: much of the evidence upon which Ms Jovanovska relies is flawed, for the reasons given by Betta Foods.
[17]See, Wills v A C Neilsen Pty Ltd (2007) 17 VR 53, 54 [6] (Nettle JA).
Ms Jovanovska’s symptoms would appear to have increased in severity and she took more time off work after 20 October 1999. I am not, however, satisfied by the evidence as a whole that she has established the critical existence of a physical injury, arising in the course of her employment on or after that date, responsible for an impairment which justifies the description of that injury as ‘serious’, given her previous symptomatology and absences from work.
As far as the non-organic factors suggested by the reports of Mr Hooper, Mr Carey, Dr Karna and, perhaps, Dr Dharwadka are concerned, there is no need for any ‘disentanglement’ in accordance with s 134AB(38)(h) in light of my overall conclusion.
The force of any admission by acceptance of any of Ms Jovanovska’s claims under the Act is reduced by her supplying what I consider to be inaccurate information in the various claim forms.[18] The details she gave are to be contrasted with the true picture presented by Dr Giaprakis’ clinical notes. Further, her s 98C claim form stated that the alleged injury occurred by ‘repetitive work over time’.
[18]See Ansett and Anor v Taylor [2006] VSCA 171, 40 (Ashley JA).
Ms Jovanovska has failed to make out her case and the appeal should be dismissed.
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