Karunanayaka v Northern Metropolitan Health Service &
[2010] VCC 1152
•2 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-00348
| DAKSHINI KARUNANAYAKE | Plaintiff |
| V | |
| NORTHERN METROPOLITAN HEALTH SERVICE | First Defendant |
| And | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 4, 5, 9, 10, 11 August 2010 |
| DATE OF JUDGMENT: | 2 September 2010 |
| CASE MAY BE CITED AS: | Karunanayaka v Northern Metropolitan Health Service & Anor. |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1152 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s right upper limb by reason of aggravation of pre-existing degenerative disease – whether the right elbow injured in the same workplace incident – the extent to which, if any, constitutional factors and/or impairment from earlier neck injury suffered in a transport accident contributed to the consequences alleged – whether any the pain and suffering consequence was more than significant or marked or at least “very considerable”– whether the plaintiff suffered the requisite economic loss.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. W. McGarvie | Ms A. O’Kane |
| with Mr R. Stanley | Nowicki Carbone & Co | |
| For the Defendants | Mr P. Elliott | Hall & Wilcox |
| with Ms A. Ryan | ||
| HER HONOUR: |
Introduction
1 The defendant employed the plaintiff as a Patient Services Assistant from 14 July 2003. By originating motion filed on 2 February 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
2 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the right upper limb by reason of permanent aggravation of pre-existing degenerative disease in this limb.
3 According to the plaintiff an underlying osteoarthritic condition in her right elbow and wrist was rendered permanently symptomatic as the result of trauma caused by an incident at work on 14 January 2006. The incident she said precipitated permanent impairment of the relevant body function, the right upper limb and the events in the succeeding months until she stopped work were briefly set out in paragraphs 15 to 17 of the plaintiff’s first affidavit sworn on 15 January 2009 and filed in support of this application (“the plaintiff’s first affidavit”) where she said:
“ 15.
On or about 14 January 2006, I was pushing a food trolley in the ward. The trolley was heavy and I found it hard to push along. As I was pushing the trolley, the wheels became stuck and the trolley jolted and rolled backwards, jamming into my right palm. I felt a sharp pain in my right hand, right shoulder and elbow, and a straining pain along my right arm. I reported the injury to my supervisor that day, and I continued working in the hope that the pain would improve.
16.
The pain in my right arm, shoulder, hand and elbow persisted and I took approximately one week off work to rest. I returned to work in the hope that the pain would subside but it did not. I continued working, despite experiencing severe pain in my right hand, shoulder, elbow and arm.
17.
I continued working over the next few months but the pain became worse and I had swelling in my right palm and wrist area. I stopped work in or about January 2007.
18.
Within about a few days of sustained my injury at work, I consulted my General Practitioner, Dr Arora. Dr Arora provided me with hot and cold compresses to help relieve at least some of the pain in my right arm, shoulder, hand and elbow. Dr Arora advised me to take Panadol to relieve the pain in my right arm, shoulder, hand and elbow, and referred me for physiotherapy treatment at a clinic close to my house.”
4 Just over 3 weeks after the trolley incident on 9 February 2006 the plaintiff submitted a Staff Incident Report which was apparently signed on 10 February 2006 by a manager, Ross Armsden (“the Staff Incident Report”). This report represents the first formal notification of the trolley incident described by the plaintiff in the following words:
“My arm was strained while pushing the food trolley from the kitchen to the ward and while pushing the trolley in the ward. The trolley does not push properly and it is very heavy -- The wheels keep rotating. We need a new trolley.”[1]
[1] Plaintiff’s Court Book (“PCB”) 93.
5 In this report the plaintiff ticked a number of boxes which indicated that the injury suffered was muscular strain and that she had pain/discomfort. To this she added commentary to the effect that she also suffered swelling of her palm, wrist and lower arm.
6 The plaintiff was a patient of the Hillcrest Clinic. Notwithstanding the allegation contained in paragraph 18 of the plaintiff’s first affidavit, the most likely first attendance for treatment of her right upper limb was on 17 February 2006 when, according to the clinical notes, the plaintiff consulted a Dr Bahnasawi. In cross-examination the plaintiff agreed that, as recorded, on this occasion she complained about a painful right hand for the treatment of which the doctor prescribed Naprosyn.
7 With the exception of the reports from treating orthopaedic surgeon, Mr Tham and consultant plastic surgeon, Mr Ham who examined the plaintiff at the request of the insurer in May 2007, where these matters were summarised in the medical evidence adduced during 2006 and 2007,[2] the plaintiff has generally described the circumstances relating to the trolley incident and the onset of pain and symptoms in her right hand/wrist and lower arm, in a manner consistent with the short report made by her in the Staff Incident Report. Accordingly, it is unlikely that in the same incident she also injured her right shoulder (for the purpose of this application a different body function) as alleged in paragraph 15 of the plaintiff’s first affidavit. I will comment on the further allegation that her injury was reported to a supervisor on the same day in due course.
[2] As for example, the report and evidence of Dr Arora and the reports of Mr Hooper, Dr Ireland and Dr Findeisen.
8 As my discussion of the evidence reveals shortly it is also unlikely that in the months following the trolley incident the plaintiff took injury-related time off from her employment with the defendant or from her casual duties with another employer, Dianella Pty Ltd. Rather she appears to have continued working and, as the Dianella timesheet for the fortnight ending 22 January 2006 shows the plaintiff probably worked an additional 25.60 hours spread over 16, 17, 18 and 20 January 2006.[3]
[3] Defendant’s Court Book (“DCB”) 253 A.
9 In her WorkCover Worker's Claim Form, apparently signed on 21 November 2006, the plaintiff described the body part affected as being her right arm.[4] Subsequently, as the copy correspondence in 2007 between the insurer and treating orthopaedic surgeons, Mr Tham and Mr Bell, confirms Allianz accepted liability both for proposed surgery to and arthroscopy of the plaintiff's right elbow arising from this claim.
[4] PCB 95.
10 Relying on the dicta of Ashley JA in Ansett Australia Ltd and another v Taylor[5] the plaintiff correctly submitted that this admission by the insurer is a significant (but not necessarily conclusive) indication that pre-existing degeneration of the plaintiff's right elbow was also aggravated as a result of the trolley incident.
[5] [2006] VSCA 171.
11 As my discussion reveals in due course, despite my reservations concerning the plaintiff's credit and the reliability of some aspects of her evidence I was satisfied that there probably was a causal nexus between the damaged condition of her right elbow and the trolley incident.
The statutory requirements and evidence
12 In accordance with the Act and case law interpreting the relevant provisions the following considerations apply to s.134AB.
13 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and pecuniary loss consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the right upper limb, are more than “significant” or “marked” and at least “very considerable”.
14 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case both pain and suffering and pecuniary loss, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and “very considerable”.
15 Any psychological or psychiatric consequence of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.
16 In this case, where there is pre-existing degenerative disease of the right upper limb, I must consider what the evidence discloses as to the prior condition of this limb and determine whether any additional impairment resulting from the incident on 14 January 2006 is serious and permanent.
17 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and retraining, she has a capacity for any employment which if exercised would result in her earning more than 60% of her pre-injury earnings determined in accordance with s.134AB(38)(f) of the Act.
18 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[6]
[6] Section 134AB(19)(b).
19 As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.
20 If the plaintiff satisfies the loss of earning capacity requirements in s.134AB of the Act, she will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.
The evidence called and tendered
21 The plaintiff deposed to the accuracy of both her first affidavit and her further affidavit sworn on 2 July 2010 (“the plaintiff’s further affidavit”). The plaintiff gave evidence regarding only two additional matters. The first concerned the Staff Incident Report. In her evidence in chief the plaintiff was taken to that part of the Staff Incident Report in which she claimed that a Nursing Unit Manager, “Sharon Robinson” had witnessed the incident. However, when reminded by senior counsel that Ms Robinson had deposed that she was not on duty that day[7] the plaintiff nevertheless replied that she remembered reporting the incident to a Nurse Unit Manager and that, as far as she remembered, her name was “Sharon”.
[7] DCB 33 and PCB 246.
22 The second matter, on which the plaintiff gave evidence-in-chief, concerned a bundle of her timesheets for the defendant. In this evidence the plaintiff alleged that the time taken off work, shown in the timesheets as “sick” leave, was taken by her as a result of her arm injury. The plaintiff was cross- examined at length. Her treating general practitioner at the Hillcrest Clinic, Dr Arora, was also cross-examined at length.
23 The material tendered by the plaintiff was contained in her amended Court Book which comprised some court documents, including an affidavit sworn by the plaintiff's sister, Moonyean Perera on 5 July 2010 (“the Perera affidavit”). The deponent was not cross-examined. However, this affidavit was relied on by the plaintiff only to the extent that it contained her sister’s own observations of matters concerning the consequences of the plaintiff’s work-related injury.
24 Without detailing each and every document, I note that the Plaintiff’s Court Book also contained correspondence and multiple medical reports from treating and medico-legal doctors and specialists, radiological reports, investigations material, some wage and pay information, a bundle of WorkCover Certificates of Capacity, a bundle of clinical notes in the main relating to the plaintiff’s attendances for treatment by Dr Arora, and a copy of the judgment of Her Honour Judge Bourke in Karunanayake v Transport Accident Commission[8] in respect to a transport accident leave application.
[8] [2008] VCC 1479.
25 The defendant also tendered an amended Court Book. Again, without detailing each and every document, I note that the Defendants’ Court Book also contained copies of letters, clinical records and reports made by a number of treating and medico-legal specialists, an x-ray report for the plaintiff's right elbow ordered by Dr Arora on 26 May 2006, material relating to the plaintiff employment during the relevant period, and an affidavit sworn on 12 July 2010 by Nursing Unit Manager, Sharon Robinson. Relevantly, the Defendants’ Court Book also contained an affidavit sworn by the plaintiff’s son, Ashan Shane Lazarus, on 3 July 2010 (“the second Lazarus affidavit”) in support of this application as well as affidavit and medical material relating to the earlier transport accident leave application. The defendant tendered the second Lazarus affidavit after the plaintiff’s senior counsel indicated that the plaintiff would not be relying on this evidence.
26 Apart from a number of medical reports, the documents relating to the transport accident leave application included three affidavits sworn by the plaintiff on 16 January 2008, 30 September 2008 and 9 October 2008 respectively, an affidavit sworn by her son on 30 September 2008 (“the first Lazarus affidavit”) and an affidavit sworn on 28 August 2008 by her friend and co-worker, Reverend Lorraine Covington (“the Covington affidavit”).
Background matters
27 To place this application and the issues in dispute in their proper context it is necessary to explain earlier events. In summary, and uncontroversially, the matters in the following paragraphs represent the plaintiff’s personal history.
28 The plaintiff, who is 62 years of age, was born in Sri Lanka. She is twice divorced with two adult sons who reside in the United Kingdom, and a third son who in 2001 migrated with the plaintiff to Australia to join her mother and siblings.
29 The plaintiff was schooled to the equivalent of Year 10 level and in the mid- 1960s she moved to the United Kingdom where she qualified and for 16 years thereafter worked as a Division 2 Nurse. She also deposed to having worked in an office in administrative duties following her first marriage in about 1973.
30 In 1981 the plaintiff moved back to Sri Lanka and, during the 20 years before she and her youngest son migrated to Australia, the plaintiff deposed to looking after her family, including her three sons.
31 In the months following her arrival in Australia, and depending on the source from which this information is derived, the plaintiff was employed in various positions. For instance, in her affidavit sworn on 16 January 2008, in support of the serious injury application made pursuant to s.93(4) of the Transport Accident Act 1986, the plaintiff deposed to having performed cleaning, administration and housekeeping duties for different employers prior to the transport accident. The plaintiff had also registered with the Australian Nursing Federation. She was on a waiting list for a refresher course intending, so she said, to resume work as a Division 2 Nurse when she had completed this course.
32 On 10 June 2002 the plaintiff suffered injury when a pane of glass fell from the window of a train in which she was a passenger and struck her on the head (“the transport accident”). As a result of the transport accident the plaintiff apparently suffered head, neck, spine and psychological injuries.
33 On 25 November 2008 Her Honour Judge Bourke dismissed[9] the plaintiff’s application in which she sought leave to bring proceedings to recover damages for these injuries. In the transport accident application it was argued that the cervical spine was the body function impaired and that such impairment was both serious and long-term. The plaintiff alleged that one consequence of her neck injury was that it precluded a return to work as a Division 2 Nurse.
[9] Karunanayake v Transport Accident Commission, op cit.
34 Apparently, after the plaintiff filed a notice of appeal this matter resolved with the Transport Accident Commission paying an amount of damages and the plaintiff’s costs.
35 Despite her claim that her neck injury precluded a return to work as a Division 2 Nurse, it was common ground that, following the transport accident from 14 July 2003, the plaintiff exercised a residual earning capacity in gainful employment by commencing employment with the defendant as a Patient Service Assistant. By the date of the trolley incident she was working approximately 30 hours per week.
36 In paragraph 14 of the plaintiff’s first affidavit[10] the plaintiff deposed that her duties included cleaning wards, doing the dishes, mopping, cleaning toilets wheeling food trolleys, serving food and collecting empty trays. These were tasks she also described as physically onerous and repetitive in nature.
[10] PCB 32.
37 In the plaintiff’s further affidavit she deposed that after she commenced employment and, when not rostered to perform duties for the defendant, she also worked on an occasional basis at a Day Care Centre operated by Dianella Pty Ltd from the same premises. According to the plaintiff this additional work – reading aloud to the residents, preparing and serving meals and playing games with the residents – did not involve heavy duties.
38 The copy timesheets and payslip reports tendered for Dianella indicate that there were marked fluctuations between the hours worked by the plaintiff in each of the fortnights recorded. For instance, in 2005 in some fortnightly pay periods the plaintiff worked as little as 4.50 hours[11] or as much as the 30.40 hours worked by her in the fortnight from 28 November 2005 to 11 December 2005.[12] Moreover, based on the copy records tendered for the period ending 9 December 2007 the hours worked by the plaintiff continued to fluctuate between a minimum of five hours and a maximum of 22.80 hours in the fortnight 9 July 2007 to 22 July 2007.[13]
[11] PCB 251.
[12] PCB 254.
[13] PCB 258.
39 The plaintiff has not returned to her employment with the defendant (or any new employer) since she was certified by general practitioner, Dr Arora, from 21 January 2007 as unfit for any duties due to “Pains right arm and hand Strain injury”,[14] although she did continue her casual work at the Day Care Centre until December 2007.
[14] PCB156A.
40 At hearing Dr Arora confirmed that in his opinion the injury to the plaintiff’s right elbow and hand was permanent and that due to this injury she was unemployable. According to this doctor since 22 December 2009 the treatment of the plaintiff’s right arm symptoms has included prescription of strong pain killing medication, panadeine forte and sleeping medication, Temaze. The latter was prescribed on 3 July 2010 following reports from the plaintiff that she had difficulty sleeping due to right arm pain.
The areas of dispute
41 Two arthropathic conditions, osteoarthritis and inflammatory seronegative arthropathy, have been diagnosed and relevantly affect both the plaintiff’s right upper limb and her left elbow. The plaintiff did not allege that the inflammatory disease was trauma or work-related. Nevertheless, despite the inflammatory disease diagnosis and ongoing treatment for this condition from treating rheumatologists, the plaintiff's senior counsel asked the Court to prefer the opinion of the defendant’s medico-legal rheumatologist, Dr Fraser, where he questioned the soundness of this diagnosis. I will return to discuss these matters more fully in due course.
42 The defendant did not contest that on the date alleged, following a work- related incident, the plaintiff probably suffered a compensable aggravation injury to her right hand. However, it did dispute:
•
whether the plaintiff's right elbow was also injured in the same work-related incident and, if it was, whether any aggravation of osteoarthritic changes in the plaintiff's right upper limb was unresolved. In this regard the defendant relied on the reports of two of its medico-legal specialists: orthopaedic surgeon Mr Hooper, who examined the plaintiff on 19 December 2006 and on 30 January 2008,[15] and rheumatologist Dr Fraser, who examined the plaintiff on 20 August 2009 and on 22 April 2010.[16] Both of these specialists viewed the work-related aggravation of osteoarthritis in the plaintiff’s right upper limb as probably temporary, with her symptoms now due to underlying pathology and, in Dr Fraser’s opinion, also due to non- organic factors[17];
•
whether, in view of the consequences previously deposed to by the plaintiff, in the plaintiff’s first affidavit and in the first Lazarus affidavit and the Covington affidavit, and putting to one side the impact of any unrelated condition or conditions, permanent trauma-related impairment of the plaintiff's right upper limb makes any or any material contribution to the pain and suffering and pecuniary loss consequences alleged in this application; and
•
whether the plaintiff was a witness of credit. In this regard, the defendant relied specifically on the timesheets which the plaintiff initially adduced as evidence of sick leave taken in the period shortly after the trolley incident and on the discrepancy between the affidavits sworn in support of the transport accident application and the affidavits sworn and adopted as true and correct by the plaintiff, the Perera affidavit and the second Lazarus affidavit. In his final address the plaintiff’s senior counsel submitted that at most the plaintiff’s evidence reflected carelessness or a mistaken belief rather than a conscious attempt to mislead the Court.[18] He also acknowledged that as drafted the plaintiff’s affidavits in the current leave application probably presented a misleading picture, a circumstance he said ought be attributed to the “enthusiastic drafting of junior solicitors”.[19] As this was a significant area of contest between the parties this issue is discussed next.
[15] DCB 6 and PCB 87.
[16] DCB 10.
[17] DCB 14 and 15
[18] Submissions TN 355.
[19] Submissions TN457.
The plaintiff's credit
43 In leave applications “serious injury” is determined as at the date of hearing and on all of the evidence. Subject to leave of the Court a plaintiff's evidence- in-chief and the evidence of any corroborating witness is part of the documentary evidence contained in the affidavit or affidavits in the Court Book. Court Books are exchanged prior to the hearing. Subject to any late filing, this gives the parties an opportunity to prepare their case with due regard to the content of the other party’s Court Book. Typically copy documents produced for cross-examination and final tender are taken from the Court Books. One consequence of this procedure is that alterations to documents may be less apparent than where original documents are produced.
44 As a general rule the affidavits filed in these applications for leave are drafted by legal practitioners with due regard to their instructions, any documentary evidence and, whilst paying attention to their obligation to properly inform the Court, the facts which establish a serious injury for the purpose of the Act.
45 If adopted as true and correct a plaintiff's affidavit evidence is tendered at hearing either separately or as part of an amended Court Book containing all of the documentary evidence. In the case of witness affidavit evidence this process often occurs without cross-examination.
46 Rather than a verbatim account, in most cases the affidavit evidence represents an interpretation by a legal practitioner of their instructions and the materials to hand. The task requires care, skill and an appreciation of the matters a plaintiff must prove in a leave application.
47 It follows that if this also requires consideration of the affidavit evidence, amongst other matters, a fair assessment of a plaintiff’s credit often necessitates some allowance for the likelihood that the supporting affidavit material was probably crafted by their legal practitioner to address specific issues using language and expressions that would not be employed by a plaintiff (or witness) if they were called to give oral evidence.
48 An adverse finding on the plaintiff’s credit as a witness is a significant matter. The potential of such a finding is that it undermines the reliability of the treating and the medico-legal evidence and, absent evidence such as radiological reports and contemporaneous documents that independently help address the requirements of the Act, a plaintiff may fail to meet the requisite burden of proof.
49 Ordinarily where there are omissions from or discrepancies in the evidence, if they cannot be explained by reference to the documentary evidence, they should be dealt with in the plaintiff's oral evidence and not, as in this application, left to counsel’s final address when the evidence was closed.
50 Generally speaking, a judge’s task in weighing the evidence increases in proportion to the extent to which the evidence on which the success of the application relies is found to be unreliable. In this application, based on all of the evidence including my assessment of her as a witness, I was satisfied that some of the plaintiff’s evidence and the evidence on which she relied was unreliable. An explanation of how I arrived at this conclusion necessarily involves both a discussion of my assessment of the plaintiff following cross- examination and re-examination and a discussion of some of the other evidence.
51 The plaintiff is a well spoken (albeit softly spoken) woman. Her command of English was not in issue, although during a lengthy cross-examination even when these were responsive the plaintiff tended to be somewhat literal in her answers. I make this observation because on many occasions she was not responsive in the answers she gave, opting instead to repeat a version of events that advanced her case.[20]
[20] As, for example, at TN 29, lines 25-29.
52 As to factual matters (asserted both in her oral evidence and her affidavits), in many instances the plaintiff’s evidence was inaccurate and did not withstand scrutiny. At best she was a poor historian who, many years after the events transpired, had through reconstruction attempted to fill gaps in the evidence with assertions of fact that, if accepted, invariably strengthened her application. I formed the view that more often than not any inaccuracy identified was not simply due to the language or expressions used.
53 For instance, in the plaintiff’s first affidavit she said in respect to the transport accident that ongoing treatment for her head, neck and spine injuries, involved taking Panadeine Forte, attending Dr Arora (“from time to time”) and consulting neurosurgeon, Dr Maartens (“about three or four times per year”).[21] The plaintiff also reiterated that her neck injury had prevented her from working as a nurse, although she added that until injuring her right arm she had been able to continue in “a lighter duties capacity” as a patient services assistant.[22]
[21] Paragraphs 10 to 12, PCB 31.
[22] Paragraph 38.
54 In the plaintiff’s further affidavit at paragraph 7 the plaintiff deposed as follows:
“7. Prior to sustaining my work injuries, I was able to undertake unrestricted manual work with the First-named Defendant. From the beginning of my employment, my tasks included pushing fully loaded meal trolleys along the wards up to 3 times per day. Although the work was physically demanding and heavy in nature, I enjoyed my job and
was able to complete my tasks without assistance.”[23]
[23] PCB 12.
55 The last mentioned affidavit also explained in more detail the plaintiff’s pre- injury employment, including the fact that she had been employed at the Day Care Centre.
56 As I have already mentioned in paragraph 16 of the plaintiff’s first affidavit she deposed to taking one week off work to rest following the incident. This claim was repeated in paragraph 9 of the plaintiff’s further affidavit. In the plaintiff’s first affidavit the plaintiff also said that within a few days of sustaining her injury at work she consulted her general practitioner, Dr Arora, and she described in some detail the treatment given which included hot and cold compresses, Panadol and referral for physiotherapy treatment at a clinic close to her home.[24] In the plaintiff’s further affidavit she bolstered this evidence by adding that from about January 2006 to July 2007 she had consulted Darren Rose, the physiotherapist to whom she had been referred by Dr Arora.[25]
[24] Paragraph 18.
[25] Paragraph 11.
57 Based on the Hillcrest Clinic’s notes, the general practitioner’s evidence, other documentary evidence and her responses during cross-examination, I was not satisfied that the plaintiff reported any incident to the defendant (or any Nurse Unit Manager) before she completed the Staff Incident Report[26] or, as I have already noted, that she obtained any treatment of her right upper limb from Dr Arora (or any other doctor) until she consulted Dr Bahnasawi at the clinic on Friday 17th February 2006.
[26] TN 121 et seq.
58 This finding does not mean that I have rejected the plaintiff’s evidence that her right arm was symptomatic at least to the extent described in the Staff Incident Report and that this eventually necessitated medical treatment. Indeed, for the purpose of this application and in view of the more detailed and extensive description of the plaintiff's injury contained in the Staff Incident Report, I have preferred this to the brief note made in the clinic’s records on 17 February 2006 as a more reliable indication of the probable extent to which she suffered injury to her right upper limb.
59 As I have already noted, the Defendants’ Court Book included a number of very detailed affidavits filed in support of the plaintiff’s transport accident leave application. She was represented in both applications by the same firm of solicitors.
60 The unequivocal message conveyed by the earlier affidavit material, all sworn in 2008, was to the effect that the plaintiff had not recovered from her neck injury, that she was significantly disabled by ongoing impairment of her cervical spine and that this had a profound impact in all areas of her life.
61 In view of my finding that for the foreseeable future permanent work-related impairment of the plaintiff’s right upper limb materially contributes to the plaintiff’s inability to return to her pre-injury employment, I am not also required to determine the extent of any contribution made by impairment of the plaintiff’s right upper limb to pain and suffering consequences already compromised by the neck injury and whether these can be properly and compendiously characterised as serious. However, for present purposes, I consider that the following extracts from the affidavits illustrate the inaccuracy of the message conveyed by the plaintiff’s affidavit material, particularly with respect to the extent to which she was disabled by her neck injury during the period she worked with the defendant.
62 For instance, in paragraph 37 of the plaintiff’s affidavit sworn on 16 January 2008, in paragraphs 14, 15 and 16 of second affidavit sworn on 30 September 2008 and in paragraph 6 of her third affidavit sworn on 9 October 2008 the plaintiff deposed:
“37. In or about July 2003 I commenced in a new position with Northern Health at the Broadmeadows Hospital, working as a Patient Services Assistant. I was employed on a casual basis and I applied for this job myself ... I started on a part-time basis, working 15 hours per week and built up to 76 hours per fortnight. I found these hours and the work difficult, tiring and tough on my body. I was generally fatigued due to the exertion of working full-time with an ongoing injury. I required time off and breaks during my shifts and relied on medication to assist with pain relief. I was exhausted at the end of the day and would have to come home and lie down. I found it extremely difficult to attend to housework or look after my son. However, due to my financial situation as a single mother, I felt I had no choice but to continue working, despite my injuries and the pain that I was in.”[27]
[27] DCB 180.
…
“14.
I made the decision to gradually accept more shifts to guarantee my work and financial security in or about late 2003. I managed to work with my neck injury by taking Panadol every 4 hours and applying Voltaren analgesic cream when I was in pain. During my work break, I would sometimes apply an ice pack to my neck to temporarily relieve the pain in my neck and any headaches I was suffering. I also learned how to adjust how I performed some of my tasks in order to apply the least amount of strain possible on my neck. To manage my neck injury I would also swap jobs with my other workmates. For instance, I found fast and strenuous tasks such as using the industrial vacuum cleaner and the spot cleaning machine to be heavy work that aggravated the pain in my neck. I would try to avoid doing those tasks by asking a colleague if I could do lighter duties, such as serving and collecting cups of tea, collecting the waste paper bins around the ward, replenishing the tissues next to the patient's bedside table and other light duties. My colleagues were usually very supportive of my injury and would often allow me to swap tasks with them.
15. When I arrived home after working an eight hour shift, I was very tired and used to lie down and fall sleep. On a good day when my neck pain was not as excruciating, I would simply relax on the couch and try to not move my neck. On a bad day, I would have to take a painkiller and either stretch out on the couch or in bed with an ice pack on my head and a heat pack on my neck. On such days I would also apply Voltaren cream on my neck to help me soothe the pain.
16. ... Despite badly injuring my neck on 10 June 2002, I had no choice but to return to work and to put up as much as possible with the pain in my neck. I had only been in Australia for about a year when my neck injury occurred and I had an approximately $200,000.00 mortgage to repay, a sick mother to look after and a young son to support. I came to Australia to care for my elderly mother and I considered that my future was in this country with my son, my sisters, my brother and my mother. I also believed that my son would receive an excellent education and would have a good future in Australia. I had to force myself through a lot of pain to continue doing work as a Patient Service Assistant until I sustained a workplace injury to my right limb on or about 14 January 2006. Since then I have relied a lot on my sons living overseas to assist me with my mortgage repayments.”
…
“6.
... I stopped working in or about November 2006 after sustaining a workplace injury to my right hand and arm on or about 14 January 2006. I spoke to my General Practitioner, Dr Arora, in or about October 2006, and he advised me that I should stop working. So I stopped working in November 2006. However given my work ethic and financial situation, I decided to attempt to return to work in or about December 2006 on light duties and relying mainly on my left arm. This proved beyond my physical capacity because of the pain in my right hand and arm after my workplace injury and because of a gradual increase in my neck pain which radiated down both of my shoulders, arms and fingers. So I stopped work in or about December 2006 or January 2007.”
63 In the Covington affidavit the Reverend Covington deposed, amongst other things, that at the time of the transport accident she was a pastoral care worker at the Broadmeadows Health Service Palliative Care Unit and that she had assisted the plaintiff to obtain her position with the defendant in 2003. The tenor of her affidavit evidence was that the plaintiff's work with the defendant aggravated her spinal symptoms, that the plaintiff often reported neck pain, that she often tried to help the plaintiff to avoid the stress of lifting and that the plaintiff pushed herself to continue working because this was necessary to support her son.[28]
[28] DCB 198 and 199.
64 Whilst primarily directed to articulating the plaintiff's pain and suffering consequences, the first Lazarus affidavit nevertheless similarly impressed upon any reader the extensive and ongoing consequences suffered by the plaintiff as a result of her neck injury.[29] This is in stark contrast to the second Lazarus affidavit in which, without mentioning the earlier transport accident or injury, he deposed to similar consequences suffered by his mother following injury to her right upper limb in 2006. The Perera affidavit also failed to mention the transport accident injury or any pre-existing disability.
[29] DCB 193.
65 To suggest as senior counsel at first did that the plaintiff was technically right when she recently deposed that prior to the trolley incident she had been able to undertake unrestricted manual work with the defendant, is to ignore the impact this statement was intended to have in the context of the current application as well as the apparent discrepancy between this evidence and the evidence on which the plaintiff relied in the earlier application. Moreover, to make such a finding would require the Court to ignore the plaintiff's claim in the same paragraph that she completed her tasks without assistance. This additional claim was clearly at odds with her evidence in the transport accident application where she claimed that due to her neck injury she tried to avoid heavy tasks and often swapped these tasks with co-workers.
66 In a lengthy segment of cross-examination the plaintiff was taken first to the report of orthopaedic surgeon, Mr King, who at the request of her solicitors assessed the plaintiff in March 2010. The solicitor’s letter of instruction and his report confirms that as part of his assessment, Mr King considered some radiological material and a selection of medical reports and letters relating to the plaintiff’s right upper limb injury, most of which were from treating doctors including her general practitioner, orthopaedic surgeons and rheumatologists.
67 I note that in his report to the general practitioner on 8 May 2008 a treating rheumatologist, Dr Chatfield, referred to MRI evidence of degenerative changes in the plaintiff’s neck with right C5 nerve root compression. He included “radicular symptoms in the right arm with cervical changes”[30] in his list of the main issues facing the plaintiff. From my reading of the other material Mr King said he considered, apart from any history he received from the plaintiff, this was probably the only information which could have alerted him to there being recent medical opinion indicating that residual symptoms associated with the neck injury probably also continued to affect the function of the plaintiff's right upper limb.
[30] PCB 73.
68 In cross-examination, amongst a number of propositions with which she agreed and, in accordance with the following extracts from his report, the plaintiff recalled advising Mr King that:
“... The initially quite severe neck pain radiating to the right shoulder and upper thoracic region gradually improved with rest, analgesia and physiotherapy over the next year and her symptoms had settled down to a comfortable level about 12 months after the accident and remained at this level onwards.
...
She took on the job as a Patient Service Assistant and the Northern Hospital in 2003 and at that stage she had only mild residual symptoms in the neck and shoulder and could manage her general ward duties without trouble (as set out above).”[31]
[31] PCB 78.
69 The general ward duties to which the report referred were cleaning, serving food to the patients, mopping and washing. This was described in the report as a moderately heavy job which the plaintiff “managed without difficulty”.[32] Whilst the neck injury did not prevent the plaintiff’s return to this job or to occasional work in the Day Care Centre, in my view this summary substantially minimised the ongoing impact of the neck injury. However, allowing for the material to which he also made reference, in the end result I was satisfied that in the context of this application Mr King’s opinion, both as to his diagnosis and the plaintiff’s capacity to return to work, made a reliable contribution to the determination of this application.
[32] PCB 78.
70 The plaintiff was next taken to various paragraphs in the second affidavit sworn by her in support of the transport accident application, some of which I have already set out. The plaintiff confirmed the truth and accuracy of the matters to which she had previously deposed.
71 I formed the view that when challenged about the discrepancy between the earlier affidavit evidence and the history she provided to Mr King, the plaintiff was at first non-responsive: “When I work, I have pain”[33] and, after being pressed on both this and the inconsistencies between the matters contained in paragraph 7 of the plaintiff’s further affidavit and her evidence in the transport accident application rather than answer the questions asked, the plaintiff sought to rationalise her position.
[33] TN 29.28.
72 This is best illustrated by her responses where she said: “But I still managed
to do my work because it was my neck injury. My arms were all right, sir. I
didn't have pain in my arms”[34] and “Yes, but I still did my work because my
arms were not injured. This job that I did was a lot of manual work and I still
managed to do it. I pursued my job and I did it all the time with pain”.[35]
[34] TN 30.11.
[35] TN 38.15.
73 In cross-examination the plaintiff also showed a marked reluctance to acknowledge (although she eventually said “Maybe not”[36]) that through her earlier affidavit evidence she had clearly indicated that, had her financial circumstances not required this, impairment of her neck probably precluded her work with the defendant.
[36] TN 36.10.
74 No attempt was made in re-examination to address the reason or reasons for the conflict between the affidavit evidence filed in the two applications. As I have already mentioned in his final address senior counsel submitted that I should attribute this discrepancy to the enthusiasm of the solicitor or solicitors drafting the affidavits not the plaintiff. In my view to follow this course would require me to go beyond making reasonable allowance for the circumstance that the affidavits are usually drafted by solicitors. It would require me to ignore the plaintiff’s evidence that she gave the history recorded by Mr King. It would also require me to put to one side the plaintiff’s evident belief that the matters stated in her affidavits filed in support of this application were both accurate and defensible.
75 The plaintiff’s affidavit evidence is just one example of how following the disposal of the transport accident application she has tried to advance this leave application by either ignoring or minimising the impact of, particularly, the neck injury on all aspects of her life prior to the trolley incident or by asserting facts which are incompatible with any available and contemporaneous documentary record.
76 Having regard to the clinical notes, the general practitioner’s evidence, the medical certificate he gave the plaintiff on 22 November 2006 and the WorkCover Certificates of Capacity he provided from this date it appears that on 22 November 2006 the general practitioner retrospectively certified the plaintiff as unfit to work due to “a personal illness”.[37] The clinical notes indicate that the doctor provided this medical certificate following a complaint of persistent pain in the plaintiff's right upper limb.
[37] DCB 259.
77 The clinical notes show that between 24 May 2006 (the first date on which Dr Arora treated the plaintiff for a sore right elbow and hand) and 22 November 2006 the plaintiff attended the clinic for treatment on about 18 occasions. A number of these attendances related to treatment of her neck injury. Possibly only six of the attendances involved treatment of the plaintiff’s right upper limb.
78 The attendance on 18 September 2006 records for the first time that the pain reported in the plaintiff’s wrists and elbow was due to an incident at work. The record made expressed the doctor’s understanding that an application for WorkCover was to be made, whilst also indicating that a medical certificate had been provided. Accordingly, the failure over many months to record this a workplace injury does not exclude the possibility that previously the plaintiff did, as she said, mention the relationship between the injury and her work. However, as Dr Arora said in cross-examination, he did not always include this information or indeed a full history in his notes until a patient indicated an intention to apply for WorkCover.
79 Relevantly, the WorkCover Worker’s Claim Form the plaintiff eventually submitted in November 2006 and the handwritten notes in this document, as for example – “DID NOT HAVE TIME OFF”[38] --, are consistent with the evidence that 22 November 2006 was the date on which the general practitioner first made a detailed record of the circumstances the plaintiff said gave rise to injury to her right upper limb. It is also the date on which the doctor provided the first of a number of Certificates of Capacity certifying the plaintiff as either unfit for any duties or, as was the case between 28 December 2006 and 20 January 2007, only fit for light duties under a rehabilitation plan involving working for four hours per day three days per week.[39]
[38] PCB 97.
[39] PCB 153.
80 As to the timesheets recording days of sick leave on which the plaintiff relied to corroborate her claim that following the trolley incident she required time off for sick leave I note the following matters.
81 In view of her evidence-in-chief, and the late inclusion of these copy documents in the Court Book, I found the plaintiff’s initial and qualified response to cross-examination asking her to confirm her evidence that the word “sick” written on the first timesheet (that is, the timesheet for the period 9 to 22 January 2006) referred to time she took off because of her elbow curious. She said: “Yes, because I had an injury on the 14 January. It could have been because of that. I can't remember exactly”.[40]
[40] TN 104.29.
82 In any event, subsequently, amongst other things the plaintiff agreed that the bundle of timesheets tendered had been created by her. Evidently the plaintiff entered the hours and the time she worked, she signed each timesheet and at the end of each shift the timesheet was also signed by the person in charge.
83 The plaintiff agreed that she had written the word “sick” which appeared in the timesheets as it did on 15, 16, 20, 21, 22, and 25 to 29 January 2006, on 7 April 2006 and on dates in September and November 2006 apparently for her own use. Nevertheless, having regard to the employer’s records[41] and allowing for all of and, at times, the plaintiff’s vague and nonresponsive answers, I was not satisfied that these represented contemporaneous entries, that they were made prior to the time on which each timesheet was completed and submitted for signing by the person in charge of her shift, or even that they were made close to the time on which these events occurred.
[41] DCB 132.
84 In reaching this conclusion I also took into account the plaintiff's suggestion at one stage that due to her arm injury if she were not rostered to work on the days marked “sick” in January 2006 she would have rested. As my earlier discussion of the records demonstrates during this period the plaintiff worked at the Day Care Centre. After the plaintiff was taken to the timesheets kept by Dianella it became apparent that when on 16, 17, 18 and 20 January 2006 she wrote “sick” on her timesheets, on each of these dates the plaintiff had worked at the Day Care Centre for between 6 and 7.6 hours, in total 25.60 hours.[42]
[42] TN 134 to 137
85 When pressed the plaintiff’s explanation for this discrepancy between the records was that these were in fact rostered days off, that she had recorded these matters incorrectly for herself, that whilst she had worked with pain she had not gone off sick until “quite later in the year …” and that working with Dianella was as good as staying at home because there was nothing physical in the work performed.[43] Whilst I accept that the condition of the plaintiff’s right upper limb was probably painful and that sick leave was taken later in the year, in all I did not find the explanation for the entries made persuasive.
[43] TN 136 and 137.
86 Allowing for my concern about the reliability of the plaintiff’s evidence generally and the accuracy of the supporting affidavits, in determining this application I have paid particular regard to the evidence that is corroborated through records made close to or at the time of the events to which they relate and to the underlying pathology evidenced by the radiological material.
Treating and medico-legal evidence to 2009
87 Starting with the treating general practitioner Dr Arora, in addition to the clinical notes he produced various reports and letters written by him between 22 February 2007 and 19 May 2010 either to the insurer or to the plaintiff’s solicitors.
88 When on 24 May 2006 Dr Arora first treated the plaintiff for right elbow and hand pain, apart from prescribing Naprosyn he ordered an x-ray which reported:
“X-Ray of Right Elbow
Normal alignment. No acute fracture or effusion. There is a prominent osteophyte on the tip of the olecranon process consistent with osteoarthritis but no significant joint space narrowing is seen.
X-Ray of Right Wrist
Normal alignment. No fracture. Moderate joint space narrowing and subchondral sclerosis are demonstrated in the first carpometacarpal joint, consistent with osteoarthritis. There are small osteophytes.”[44]
[44] DCB 2.
89 In cross-examination Dr Arora agreed that the degenerative changes reported by the radiologist were not such that the doctor felt that the plaintiff required specialist treatment.
90 Between May and August 2006 there were a number of attendances for treatment of symptoms relating to the plaintiff’s neck injury which caused the general practitioner to seek a copy of a MRI report and to refer the plaintiff to her treating neurosurgeon at the Royal Melbourne Hospital, Dr Maartens.
91 The plaintiff next sought treatment of her right upper limb on 16 August 2006 when she attended the clinic and was treated for what the doctor described as a slightly bent right elbow. Whilst he also reported ordering a further x-ray, if this was performed, none of the material before the Court contains a report of the result.
92 In any event, the plaintiff was next treated for her elbow and wrist pain on 18 September 2006 when the doctor provided her with a medical certificate, noting at the same time that the plaintiff intended to make an application for WorkCover.
93 A brief entry in the notes made on 21 September 2006 records that the plaintiff wanted to try and work again. This record is consistent with evidence given by both the plaintiff and her doctor to the effect that, despite ongoing neck and arm pain, throughout 2006 she persisted with her work. This is probably also the first date on which the plaintiff was referred by Dr Arora for physiotherapy treatment of her right arm symptoms, rather than in January 2006 as deposed by the plaintiff in the plaintiff’s further affidavit.
94 Save for an attendance on 27 September 2006 when Naprosyn was again prescribed, the plaintiff next attended for treatment of her right upper limb on 22 November 2006.
95 For reasons that are best understood by the plaintiff on this date she obtained a medical certificate backdated to Friday 17 and Saturday 18 November. This was another matter on which I found the plaintiff’s evidence unsatisfactory. For instance, in cross-examination the plaintiff conceded that she made the entries in her timesheets for Friday 17 and Saturday 18 November 2006. Start and stop times were entered for 17 November as well as the word “sick”. “DAY OFF” and “sick” were also entered for 18 November. There was a note for both days – “Medical Certificate Attached”, which is probably a reference to the backdated medical certificate.
96 As I understood the plaintiff’s evidence about this matter she thought that she was rostered to work on 17 November, although the defendant’s leave record shows that she took sick leave that day.[45] However, the Dianella timesheet clearly shows that the plaintiff worked 7.6 hours with this employer on Saturday 17 November 2006. Accordingly, if as the plaintiff suggested she was rostered to work with the defendant that day, because of the proximity between events it is unlikely that when she consulted her doctor on 22 November 2006 the plaintiff had forgotten that she worked nearly a full day at Dianella on 17 November 2006.[46]
[45] DCB 133.
[46] TN 209 and 210.
97 In any event, on 22 November 2006 Dr Arora recorded a history of injury in association with the trolley incident as well as the plaintiff's complaint that since this incident she had experienced pains in her right hand and her arm going up to her right shoulder, which worsened toward the end of the day and week. According to the record the plaintiff had also reported weakness and what the doctor described as swelling over the right thenal eminence area.
98 Relevantly, Dr Arora’s clinical examination revealed tenderness over the plaintiff’s lower arm, pain and somewhat limited movements in her right hand and elbow and a slightly weaker grip. The plaintiff was certified as unfit and, allowing for the clinical notes and the copy certificates tendered, until she attended another general practitioner on 8 December 2006 her treatment consisted of physiotherapy and rest. Dr Aurora also arranged for x-ray examination of the plaintiff’s elbow and hand and an ultrasound of her elbow. The report dated 29 November 2006 reads as follows:
“X-Ray Right Elbow
Soft tissue swelling its present deep to the triceps tendon.
No other bony or joint abnormality is demonstrated.
X-ray Right-Hand
Marked osteoarthritis of the first carpometacarpal joint is demonstrated.
Ultrasound Right Elbow
The right common extensor is swollen and hypoechoic and tenderness is present over the abnormal tendon the appearance being consistent with tendonopathy.
An effusion is present.
Fluid is present between triceps tendon and the dorsal aspect of the distal humerus. This fluid is unusual and probably is arising from the joint. There is also a tiny (2mm) zone of increased echogenicity consistent with calcification anteriorly. Increased vascularity consistent with inflammation is present particularly adjacent to the posterior fluid.
No other abnormality is demonstrated.
Conclusion:
1. Tendinopathy of the common extensor tendon is demonstrated.
2. Fluid is present in the joint and this extends posteriorly adjacent to the
triceps tendon.”[47][47] PCB 44.
99 I have set out the radiologist’s findings in full because subsequently, consultant radiologist Dr Wilkie who, at the request of the defendant, reviewed some of the imaging and reports obtained between May 2006 and February 2008 disagreed with the interpretation of the results of the right elbow x-ray when he noted that:
“... There is clear osteophyte formation with joint space loss medially described. The appearances are those of osteoarthritis with hypertrophic change ...”[48]
[48] DCB 18.
100 Relevantly, this finding is consistent with the evidence of the specialists who treated the plaintiff during 2007 and 2008.
101 Dr Wilkie’s comment on the result of the ultrasound is also instructive in as much as he noted that:
“Tendonopathy of the common extensor tendon is a common finding in people involved with active manual work. There is a small effusion in the elbow joint and this would be consistent with the osteoarthritic changes seen on the plain film. The Ultrasound would not be able to detect the osteophyte seen on the plain films.”[49]
[49] DCB 19.
102 I note that an ultrasound of the plaintiff’s right thumb obtained on 4 December 2006 also indicated “moderate to severe inflammatory osteoarthritic changes at the right 1st carpometacarpal joint”.[50]
[50] PCB 45.
103 The clinical notes record that on 8 December 2006 the plaintiff saw another general practitioner for treatment of her right elbow symptoms and further that he had recommended that she wear a splint and take medication.
104 The next attendance at the clinic was on Dr Papagelis. The materials before me indicate that this doctor previously treated the plaintiff in respect to her neck injury and post-traumatic stress disorder. Indeed, his report dated 1 November 2002, the report of occupational physician Dr Davison dated 27 September 2002, and the clinical notes made at the relevant time appear to have been pivotal to the finding that the transport accident had probably caused a musculo-ligamentous injury to and aggravation of pre-existing degenerative changes in the plaintiff’s cervical spine and that by about September 2002 the plaintiff had probably recovered from this injury.[51] Psychosocial factors were also highlighted in Dr Davison’s report.
[51] PCB 239.
105 In any event, when Dr Papagelis saw the plaintiff on 18 December 2006, amongst other things, he noted that she was wearing a sheath and splint, that there was no swelling and that she complained of “subjective tenderness over her medial and lateral rt elbow”. He also apparently advised the plaintiff that she may need a referral from Dr Arora to an orthopaedic surgeon.
106 As we know from the clinical notes and the copy WorkCover certificates, whether or not this was because the plaintiff was, as she claimed, told that she could use her left arm to perform work duties between 28 December 2006 and 20 January 2007, when he examined the plaintiff on 28 December 2006 Dr Arora certified her as fit to perform light duties for 4 hours per day, 3 days per week. Relevantly, during the same period Dr Arora referred the plaintiff to an orthopaedic surgeon specialising in the treatment of hand injuries, Dr Ireland.
107 However, prior to Dr Ireland’s examination on 25 January 2007, at the request of the insurer on 19 December 2006, orthopaedic surgeon, Mr Hooper, examined the plaintiff. Whilst Mr Hooper did not treat the plaintiff at this juncture it is convenient to summarise the content of the first report submitted by him. Mr Hooper:
•
understood that as a result of the trolley incident the plaintiff jarred the palm of her right hand, that she continued working, that she developed pain in her right arm and hand, that despite her arm being very uncomfortable she was performing light duties 4 hours per day, 3 days per week (I found this an odd statement given that the copy WorkCover certificates tendered only indicate a return to work on light duties commencing from 28 December 2006), that the plaintiff had pain in her arm radiating to her elbow and neck and some discomfort now in her left arm, that she had physiotherapy twice weekly, took painkilling and anti- depressant medication and did exercises and that the condition of the plaintiff's elbow had improved a little because previously she had been unable to move it;
•
on examination found that there was no abnormality in the plaintiff's shoulders, head or neck, that there was some discomfort at the base off the plaintiff's right-hand and some evidence of degenerative changes in the carpometacarpal joint, a 15 degree fixed flexion deformity in her right elbow which the plaintiff could not fully flex and that the plaintiff's elbow was swollen and painful;
•
noted the ultrasound evidence of tendinitis and synovitis in the right elbow with effusion (I am unable to tell from his report whether the doctor also considered the earlier x-ray results); and
•
concluded that the plaintiff injured her right arm as described, that she had significant symptoms and signs in the right elbow, although by her account these were improving, that if her symptoms did not settle further investigation to obtain a definite diagnosis of the elbow condition was required, that the plaintiff was still significantly disabled, that she should continue with light duties and that due to her small stature and a painful right arm the plaintiff will not be able to return to heavy work.[52]
[52] PCB 87 to 89.
108 To summarise this, the content of Dr Ireland’s only report addressed to the insurer on 6 March 2007[53] indicated that he:
[53] PCB 63 to 65.
•
understood that as a consequence of the trolley incident the plaintiff’s right wrist was forced into extension, that the plaintiff noticed pain in the radial side of her right wrist which persisted and swelling followed, that subsequently she developed pain and stiffness in the right elbow which she attributed to the same trolley incident, that since then she has not been able to fully extend the elbow, and that she had pain on the lateral and posterior aspects of her right elbow;
•
also understood (as it turns out incorrectly) from questioning the plaintiff that she had one week off work following the trolley incident and had returned to light duties 3 days per week, 3 hours per day and that she had
“built up to light duties work full time over the subsequent 2 to 3
months ...”;[54]
[54] PCB 63
•
obtained details of her medication and treatment which included the use of a lateral epicondylitis splint for her right elbow and a basal thumb joint splint for her right thumb;
•
was given to understand that the plaintiff was suffering “mild pain” in the contralateral left elbow;
•
found on examination of the right upper limb mild swelling of the elbow, amongst other things, an inability to fully extend the elbow with a 10 to 15 degree fixed flexion deformity, full flexion of the elbow, mild tenderness over the lateral aspect of the elbow over the common extensor origin tendon, swelling over the basal thumb joint on the palmar and radial aspect, tenderness and crepitus at the basal thumb joint with marginal restriction of range of motion, a positive grind test for arthritis and very weak pinch strengths;
• reviewed radiological material;
• diagnosed right elbow and basal thumb joint osteoarthritis and mild right lateral epicondylitis; • recommended and, in February 2007, injected both the right elbow joint and basal thumb joint with a mixture of cortico-steroid and local anaesthetic; • opined, amongst other things, that in the absence of any previous injury or symptoms, the injury represented an aggravation and exacerbation of underlying degenerative osteoarthritis involving both the right elbow and basal thumb joint, that there was permanent impairment due to this condition in the form of stiffness and limitation of joint motion, although as at early 2007 he obviously thought that subject to some restrictions the plaintiff had a capacity for non-manual work. 109 During 2007 the plaintiff continued to attend her general practitioner for treatment of right arm symptoms. However, by 1 May 2007, following complaints of pain in her left elbow, her doctor also arranged for x-ray of the plaintiff's left elbow and thumb and a left elbow ultrasound, the latter of which was reported as indicating left insertional bicipital tendonopathy.[55]
[55] PCB 46.
110 It appears that on the same date the plaintiff was examined by Mr Ham who reported to Allianz, amongst other things that he was told that the plaintiff’s right elbow had become painful “early this year and she noticed that she could not fully straighten her elbow joint”.[56] In view of the reports of pain and the evidence of treatment of the plaintiff’s right elbow from early 2006 this history is obviously incorrect and probably reflects a misunderstanding on the part of the specialist. Consequently, to the extent that he ignores any relationship between the trolley incident and an aggravation injury to the plaintiff’s osteoarthritic right elbow, I have not placed weight on Mr Ham’s findings.
[56] PCB 61.
111 On 17 May 2007 another orthopaedic hand specialist, Mr Tham examined the plaintiff on referral from Dr Ireland for treatment of her right elbow, the condition of which had not been improved by injections.
112 In his report to Allianz on 10 October 2007[57] Mr Tham’s treatment and findings were summarised as follows:
[57] DCB 4.
•
He obtained a history of the development of work-related right thumb pain followed by pain in the plaintiff’s right elbow and, more recently, in her left elbow. Nevertheless, in view of the otherwise generally consistent history of trauma preceding the symptoms in the plaintiff’s right upper limb recorded in the materials before me, I have not given particular weight to this or to Mr Tham’s further comment that the plaintiff “did not volunteer a
history of trauma and her symptoms are said to have occurred
gradually”.[58]
[58] DCB 5.
•
Amongst other things, he relied on CT scan results[59] which he thought confirmed the presence of degenerative arthritis with marginal osteophytes.
•
On 16 July 2007 he performed surgery in the form of anterior capsular release and excision of osteophytes. However, despite his failure to mention this in the report submitted to the insurer and in other correspondence, such as the referral sent to orthopaedic surgeon, Mr Bell on 4 October 2007,[60] the operation notes and responses to the treating surgeon questionnaire tendered by the plaintiff[61] also indicate that he found evidence of “marked synovitis” in the elbow and that he performed a synovectomy, that is removal of the synovial membrane.
•
Having significantly improved following surgery, the range of motion of the plaintiff’s elbow apparently deteriorated over time with recurrence of pain;
•
He organised a repeat CT scan. This is probably the scan dated 26 September 2007 in which the radiologist concluded that there was “severe
[59] In all probability the reported results of an arthrogram and CT scan of the right elbow on 25 May 2007- PCB 47.
[60] DCB 3.
[61] PCB 61 and 62.
tri-compartmental right elbow osteoarthrosis with proliferative secondary
hypertrophy change”.[62]
[62] PCB 48.
•
Due to the presence of widespread degenerative arthritis and the failure to improve following surgery, he referred the plaintiff to another orthopaedic surgeon, Mr Bell.
•
Amongst other things, he relevantly concluded that in view of the widespread nature of degenerative arthritis in the plaintiff's right elbow and in the base of her right thumb it was unlikely that she would return to her pre-injury duties, although he did not rule out alternative duties where repeated flexion/extension of the elbow was avoided. He also thought that she would require further surgical intervention in the future.
113 Mr Bell first examined the plaintiff in November 2007 at which time amongst other things he found:
“ … quite restricted elbow movement with a 45 degree fixed flexion deformity. There was some pain in the through range movement and with supination pronation but the majority of her pain, was at end of range particularly on forced extension. She had normal power. The left elbow is also just a little stiff with a 10 degree fixed flexion deformity with pain on forced extension.”[63]
[63] PCB 67.
114 Based on his findings on examination, the x-ray results and presumably Mr Tham’s referral which, as I have already mentioned, had not noted the synovectomy the surgeon also performed in July 2007, Mr Bell thought that the plaintiff would benefit from an arthroscopic synovectomy, that is the removal of the synovial membrane as well as removal of the impinging anterior and posterior tissue. He was another orthopaedic specialist who felt that at some stage in the future the plaintiff would probably need to consider a total elbow replacement.
115 His findings, and the evidence of deterioration in the condition of the plaintiff’s left elbow, apparently prompted Mr Bell to refer the plaintiff to consultant rheumatologist Dr Findeisen for management of inflammatory arthritis. As is evident from his letter to Mr Bell, and the reports and correspondence from the group of specialists who have subsequently treated the plaintiff at the Royal Melbourne Hospital, the plaintiff has been diagnosed with inflammatory arthritis for the treatment of which, save for a period of six weeks whilst overseas in 2009, she continues to take methotrexate. However, this diagnosis aside, where this has also been considered by them it is evident that a number of treating orthopaedic specialists have concluded that there is trauma-related damage to the plaintiff's right elbow. For instance, in his letter to Mr Bell on 20 February 2008 Dr Findeisen relevantly noted that the plaintiff had “a lot of damage in her right elbow”, although he also recommended that any surgery be delayed until the inflammatory component of the plaintiff’s disease was under control.[64]
[64] PCB 71.
116 It appears that Mr Hooper re-examined the plaintiff on 30 January 2008, shortly before she was assessed by Dr Findeisen. On this occasion he noted the evidence of degenerative arthritis in both of the plaintiff's elbows and in the base of both thumbs as well as the possibility of inflammatory arthritis in both elbows. However, without articulating in detail or explaining why this would exclude ongoing trauma-related symptoms, Mr Hooper concluded that the trolley incident temporarily aggravated the degenerative condition in the plaintiff's right elbow and thumb and that her symptoms were now mediated by the underlying pathology. Mr Hooper nevertheless thought that the plaintiff would have difficulty getting back to any but the most sedentary of work.[65]
[65] DCB 9.
117 In the meantime Dr Findeisen had referred the plaintiff to another rheumatologist at the Royal Melbourne Hospital, Dr Chatfield to manage her inflammatory arthritis. Amongst other things, Dr Chatfield noted that the plaintiff's main issue was pain in both elbows with progressive deformity and restriction of use, with the pain in her right elbow emerging following a work incident.[66] He diagnosed likely inflammatory arthritis involving both elbows and left ankle, and notwithstanding her report of improvement in her left elbow, at the time Dr Chatfield felt that the response to the methotrexate therapy had been modest.
[66] PCB 73.
118 Relevantly, when he examined the plaintiff in May 2008 Dr Chatfield confirmed the findings of fixed flexion deformities of both elbows with particularly restricted movement on the right. As with Dr Findeisen he too thought it likely that there was significant existing damage to the right elbow which Dr Chatfield also felt probably would not be improved a great deal by anti-inflammatory therapy.[67] In other words, based on this treating rheumatologist’s opinion the methotrexate therapy would not and, as it turns out, probably has not altered the course of the underlying degenerative osteoarthritic condition which on the evidence before me was probably aggravated by the trolley incident.
[67] PCB 73.
119 As to the plaintiff’s report of pain down the medial aspect of her arm into her fingers Dr Chatfield, who apparently knew that Dr Maartens was managing the plaintiff’s neck symptoms and had recently offered her a corticosteroid injection, attributed this pain to radicular symptoms in the right arm due to changes to her cervical spine.
120 In any event, he referred the plaintiff to the Hospital’s orthopaedics team for ongoing assessment from a surgical point of view, noting at the same time that the right elbow was likely to have sustained significant damage which he thought was unlikely to improve a great deal with anti-inflammatory therapy.[68]
[68] PCB 73.
121 According to the materials tendered Dr Chatfield last examined the plaintiff on 17 December 2009.[69] As I have already mentioned it appears that the plaintiff did not take her methotrexate medication for some weeks in 2009 whilst travelling overseas. Nevertheless, when he last examined the plaintiff's right elbow this doctor thought that its condition was much the same, whereas her left elbow showed some mild recurrence of symptoms of inflammation.
[69] PCB 211A see report dated 11 March 2010 to Dr Arora.
122 It appears that particularly during 2008 and 2009 the plaintiff specifically sought and received treatment for her transport accident injuries. For instance, the copy reports from treating neurosurgeon, Dr Maartens submitted to the general practitioner between November 2006 and March 2009, amongst other things, indicated ongoing complaints of neck and arm pain and MRI findings identifying cervical “spondylosis with a central disc protrusion at
C3/4, osteophyte and disc protrusion at C4/5 with exit foramen stenosis on the right and a right para-central disc herniation at C5/6 buff with no exit foramen stenosis. At C6/7 she also had a left side osteophyte compressing the left C7
root”.[70]
[70] DCB 203A.
123 In December 2008 Dr Maartens reported that the plaintiff had requested an urgent consultation due to worsening pain in her right arm, pain in her right neck extending to the right arm and because of these symptoms, difficulty sleeping.[71]
[71] DCB 205A.
124 On this occasion the plaintiff apparently refused interventional pain therapy in the form of a nerve block and stronger analgesics. Allowing for his report to the general practitioner on 4 March 2009, Dr Maartens nonetheless understood from the plaintiff that her neck pain, which radiated down into her right arm, was secondary to her loss of movement and pain and tenderness in this limb as a consequence of the trolley incident.[72]
[72] DCB 204A.
125 When she attended Dr Maartens in May 2009 the plaintiff was awaiting an appointment at the Interventional Pain Management clinic. The report from a Fellow in Pain Medicine, Dr Chou dated 25 June 2009[73] indicates that this intervention was intended to control both pain in the plaintiff’s right elbow, for which methotrexate therapy had provided only moderate relief, and right-sided posterior cervical pain. It appears from this report that the plaintiff was given medication which acted both as an anti-depressant and in treatment of neuropathic pain. She also obtained medication to aid her sleep.
[73] DCB 212A.
126 Orthopaedic surgeon, Mr Pullen is a member of the Royal Melbourne Hospital orthopaedics team. He assessed the plaintiff on 30 November 2009 at which time she declined to proceed with a total elbow joint replacement. Relevantly so far as the current application is concerned, this surgeon expressed the view that when compared with the more degenerative appearance of her left elbow, the elbow arthritis on the right side appeared to be post-traumatic.[74]
[74] PCB 74.
127 The plaintiff has obtained a medico-legal report from Melbourne Health dated 13 July 2010 in which Dr Li summarised her treatment regime under the Hospital’s group of specialists. Amongst other things, in his report and summary Dr Li noted that the methotrexate therapy had probably controlled the inflammatory component of the plaintiff’s pain.[75] In other words, current opinion from the treating specialists indicates that the inflammatory component of the plaintiff’s arthropathy is probably not responsible for the level of pain and disability reported arising from her significantly damaged right elbow.
[75] PCB 76.
Medico-legal reports 2009 to the present
128 Rheumatologist, Dr Fraser first examined the plaintiff at the request of the defendant's solicitors on 20 August 2009. He re-examined her on 22 April 2010. From reading his reports I am unable to identify all of the enclosures he said were contained in the letters of instruction received by him prior to each examination. However, he clearly had access to a range of radiological and treating doctors’ reports. He also had access to Mr Tham’s responses to the questionnaire after he performed surgery on the plaintiff's right elbow in July 2007 but probably not, as it turns out, the operation notes in which the surgeon said that he had performed a synovectomy procedure in July 2007.
129 Having read his report I formed the view that the history of the trolley incident, the injury and her symptoms recorded by Dr Fraser was generally consistent with that recorded by many of the other doctors. However, from the summary of these events in his report, the record of when, how and by whom the plaintiff was treated and the order of later events is somewhat confused.
130 Nevertheless, despite any contradictions in the plaintiff’s reported history I formed the view that Dr Fraser was generally well-placed to offer an expert opinion, albeit one that ultimately challenged particularly the treating specialists’ diagnosis of inflammatory arthropathy. This diagnosis, what he perceived to be “marked overreaction” by the plaintiff during each physical examination and his concern about what he thought were inconsistencies in the information concerning any relationship between the injury and the plaintiff’s work probably also contributed to his view that it was unlikely that the plaintiff suffered any significant work-related injury on 14 January 2006 and to his conclusion that the degenerative arthritis evident in the plaintiff’s right elbow and hand was an age-related degenerative condition.
131 Whilst I accept that Dr Fraser probably had good reason to question the extent of the plaintiff’s reaction to his physical examination I have preferred the findings of her treating specialists for the following reasons.
132 Starting with the inflammatory arthritis diagnosis in 2008, I note that Dr Fraser felt that there was some measure of uncertainty in the diagnosis. It seems that in reaching this conclusion Dr Fraser probably wrongly believed that the procedure performed by Mr Tham on 16 July 2007 had not involved a synovectomy of the plaintiff’s right elbow.[76]
[76] DCB 15.
133 Despite his reservations Dr Fraser nonetheless recognised that the methotrexate therapy could have suppressed the disease and because of this he accepted that the inflammatory arthritis diagnosis cannot be excluded. Without further expert opinion on this I did not consider that Dr Fraser’s reservations or, for that matter, Dr Chatfield’s note after he reviewed the plaintiff in December 2009 to the effect that following a six-week hiatus in this therapy the plaintiff had only mild recurrence of symptoms of inflammation in her left elbow, a sufficient basis for finding as submitted by the plaintiff’s senior counsel that the inflammatory arthritis diagnosis is doubtful. Although, as I have already noted, I nevertheless think it reasonable to accept the evidence that currently this condition is well controlled.
134 In any event, putting to one side his concerns about the plaintiff’s exaggerated behaviour and the impact of non-organic factors on any assessment of her disability, Dr Fraser did accept the evidence of osteoarthritis in the plaintiff’s right elbow and hand which rendered the plaintiff unfit to perform work requiring lifting or any repetitive or forceful use of her hands/arms.[77] However, in my view in circumstances where Dr Fraser did not also have the benefit of, for example, the Staff Incident Report, his opinion that any work-related aggravation of this condition in the plaintiff's right upper limit was minor and temporary, was speculative and it was not a reliable basis upon which to refuse this application.
[77] DCB 16.
135 I have already mentioned Dr Wilkie’s report dated 6 May 2010 made by him after he reviewed some of the radiological imaging and reports obtained between May 2006 and February 2008. I am unable to determine from reading his report the extent of the material to which he referred. However, as his report reveals not all of the imaging was available and in some instances his opinion was based on reports alone.
136 Essentially Dr Wilkie confirmed that there was radiological evidence of primary osteoarthritis in the plaintiff’s right elbow probably already established prior to the trolley incident. Moreover, having read the reports of Drs Findeisen and Chatfield he agreed with their conclusion that any underlying arthropathy superimposed upon osteoarthritis was unrelated to any injury.
137 However, Dr Wilkie also raised the possibility that the deterioration in the plaintiff’s right elbow between May 2006 and the CT study in September 2007 could be accounted for by the inflammatory arthritis condition. I also considered this opinion to be speculative and out of step with the findings of the specialists who were directly responsible for the plaintiff’s treatment and the surgical procedure performed on her right elbow in July 2007.
138 This, then brings me back to Mr King’s report in March 2010 following his examination of the plaintiff and of x-ray material obtained on 29 November 2006 and 25 September 2007 as well as his consideration of a wide range of material submitted under cover of the solicitor's letter of instruction.
139 In summary, Mr King:
•
accepted the likely relationship between the trauma caused by the trolley incident and the onset of symptoms in joints which, while previously arthritic to a mild degree were asymptomatic;[78]
•
noted the relationship between this significant aggravating factor and the chronic disability (“to a moderately severe degree”) caused by a stiff painful elbow and right thumb;[79] and
•
considered the plaintiff’s condition stabilised as long as she did not return to work involving vigorous or active use of her right upper limb. This precludes her employment with the defendant or any similar job.[80] Had he turned his mind to this I expect that Mr King would have also said that the condition of the plaintiff’s right arm precluded her from performing some of the duties of her occasional job at the Day Care Centre where she was previously required to wash dishes and the like.
[78] PCB 82.
[79] PCB 83.
[80] PCB 82.
The compensable injury
140 In this application, there is evidence of pre-existing degenerative changes in the plaintiff’s right upper limb. Since early 2008 the plaintiff has been diagnosed as suffering from inflammatory arthritis which relevantly also affects her right elbow. Nevertheless, the evidence and the medical evidence, which includes evidence from treating and medico-legal experts has satisfied me that the incident on 14 January 2006 probably aggravated pre-existing osteoarthritis in the plaintiff's right wrist and elbow.
141 Despite the later diagnosis of inflammatory arthritis, which is largely controlled by methotrexate therapy, I was also satisfied that the damage particularly to the plaintiff's asymptomatic osteoarthritic right elbow as a consequence of the trolley incident was significant and that this and the osteoarthritic condition of her right wrist/hand has probably remained symptomatic. In reaching this conclusion I have also allowed for the probability that radiculopathy arising from her earlier neck injury contributes to impairment of the plaintiff’s right upper limb, although this had not previously prevented her from working in two jobs requiring the use of both arms.
142 In short, the compensable injury probably resulted in additional and permanent impairment which probably continues to contribute to both pain and suffering and pecuniary loss consequence, although the extent of this requires analysis.
143 For instance, whilst there is evidence of permanent injury-related impairment of her right upper limb (that is permanent in the sense that it is likely to last into the foreseeable future) based on the evidence which failed to make a proper and credible distinction between the pain and suffering consequences arising from either the transport accident or the trolley incident, I could not be satisfied of the precise nature of and the extent to which these gave rise to pain and suffering consequences additional to those suffered as a result of the transport accident.
144 On the other hand, despite any concerns I have about the reliability of her evidence, the Perera affidavit and the second Lazarus affidavit, the plaintiff’s pecuniary loss consequence is more readily distinguished from any loss of earning capacity consequence arising from the transport accident. I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s.134AB.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
145 In relation to her loss of earning capacity claim, in addition to the narrative requirements of loss of earning capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act (as amended), the plaintiff was required to prove that at the date of hearing her loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
146 The loss of earning capacity is measured by comparing the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing (“the after-injury earnings”) and the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects her earning capacity had the injury not occurred (“the without-injury earnings”).
147 The income compared is gross income from personal exertion, expressed at an annual rate.
148 A statement of calculation of the plaintiff’s loss of earning capacity was submitted during the final address. Generally speaking, the amounts referred to in this statement were not contested. For instance, the plaintiff gave gross annual income from personal exertion with both the defendant and Dianella for each of the three financial years including the year of the trolley incident as, $15,670 in 2004, $20,061 in 2005 and $30,501 (this was incorrectly written as $30,051 in the statement) in 2006. For the financial year ending the 30 June 2007 the plaintiff earned $24,540 gross including WorkCover payments. She has not submitted tax returns for the financial years ending 2008 and 2009, although according to the submission made and the records tendered it appears that, for the limited period over which she continued to work with Dianella during the financial year ending 30 June 2008, the plaintiff earned $993 gross.
149 Accordingly, for the purpose of s.134AB(38)(f) as submitted on her behalf the plaintiff's gross income as at 30 June 2006, $30,501 probably most fairly reflects her earning capacity had the injury not occurred.
150 Despite the various assessments of her physical capacity to work by her general practitioner and some of the specialists whose opinions I have summarised, during cross-examination the plaintiff conceded that she would like to and probably could cope with a few hours a week of part-time light duties of the kind she was performing at the Day Care Centre, so long as this did not involve activities such as washing-up dishes. Nevertheless, it was submitted on the plaintiff's behalf that any residual earning capacity exercised by her for a few hours each week in suitable employment with Dianella or another employer probably would not produce more than 60% of the plaintiff’s without injury earnings, namely a sum of $18,300.60 gross per annum or $351.93 gross per week.
151 As from 1 July 2010 the following definition of “suitable employment” was substituted by the amended Act:
“suitable employment, in relation to a worker, means employment in
work for which the worker is currently suited –
(a) having regard to –
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker, and (ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence and
(v) any plan or document prepared as part of the return to work planning process; and (vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and (b) regardless of whether – (i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
152 Allowing for the second reading speech, it is clear that Parliament[81] has moved to abrogate the effect of the decision in Smorgon Tube Mills v Majkic, which held that in determining what the worker was capable of earning in “suitable employment”, regard was to be had to the realities of the labour market, and loss of earning capacity was to be determined having regard to work that was “generally available in the employment market”.[82]
[81] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, page 4625, Mr Holding, Minister for Workcover.
[82] Smorgon Tube Mills v Majkic (2008) 21 VR 193,196.
153 In this case, I must consider the possibility of employment following the plaintiff's injury by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the definition of “suitable employment” elaborates. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised, would result in her exceeding the statutory threshold of 60% of gross income earned from personal exertion.
154 As I have mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of her right upper limb permanently restricts her employment options. The determination of this issue also takes into account, the reasonableness of her attempts, if any, to participate in rehabilitation or retraining and she must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
155 The plaintiff continues to be certified by her doctor as unfit for work and apart from a short period on light duties with the defendant and some work with Dianella to December 2007 she has not taken any steps to retrain or to stay in the workforce. For the purpose of this application this is not the end of the enquiry.
156 In the transport accident application the plaintiff relied on a number of specialist reports including the report of orthopaedic surgeon, Mr Brearley dated 8 July 2008 and the report of neurosurgeon, Mr Bittar dated 12 March 2008. She also relied on a detailed vocational assessment report prepared by psychologist, Katrina Green and dated 9 July 2008. These reports were tendered in this application by the defendant, although the plaintiff also drew on the opinions expressed to support her current application for leave.
157 Without commenting on the reports at length I note the following matters.
158 Both specialists found that the transport accident had aggravated pre-existing but asymptomatic cervical spondylosis and that there was evidence of cervical radiculopathy. The neurosurgeon concluded that there was bilateral cervical radiculopathy whereas Mr Brearley focused on the right arm and the fact that the position concerning the plaintiff’s right arm was confused by the injury she suffered at work.
159 Nevertheless, both specialists determined that the plaintiff’s neck injury independently impacted on her earning capacity. Mr Bittar thought that as a result of her neck injury the plaintiff had no capacity for work as a nurse. Mr Brearley formed a different view probably because he made no meaningful distinction between the plaintiff's work as a nurse and her employment as a patient services assistant with the defendant when he said that the plaintiff had some capacity for her occupation as a nurse despite the spinal injury.
160 These matters aside they both considered the plaintiff unfit for employment. In Mr Brearley’s opinion this was attributable to the right arm disability, although he thought that with the passage of time the neck injury would have required the plaintiff to reduce her working hours.[83] On the other hand, in early 2008 Mr Bittar thought that the plaintiff's neck injury rendered her totally incapacitated for all work and that whilst she may benefit from surgery the impairment of her neck was unlikely to mend or repair to any significant extent.[84]
[83] DCB 230A.
[84] DCB 237A.
161 In her report submitted in July 2008, after considering medical and other materials, the demands relating to general nursing and the plaintiff’s duties as a patient service assistant, Ms Green concluded that due to the plaintiff’s neck injury and her physical capacity the plaintiff was unable to perform the inherent duties of the occupation of nurse or personal carer (patient service assistant) within the foreseeable future.
162 When he gave evidence Dr Arora relevantly said that in his view the plaintiff was unemployable due to her right arm injury and this was a permanent impairment. In cross-examination he conceded that had the plaintiff asked him about this beforehand, Dr Arora would have recommended that she not look for a job with the physical demands of a patient service assistant.[85] However, in re-examination he clarified his responses on this issue by explaining that in his view, notwithstanding her ongoing impairment due to her neck injury, the right arm injury was the cause of her total incapacity and that prior to her right arm injury the plaintiff had not indicated to him that she was not coping or that she was unable to perform her duties with the defendant.[86]
[85] TN 193.
[86] TN 198-199.
163 In response to questioning by me the doctor also acknowledged that the inflammatory condition probably made some contribution to the plaintiff’s ongoing incapacity for employment.[87]
[87] TN 200.
164 Relying on the evidence I have summarised above, the defendant submitted that I should find that the plaintiff would not have been able to continue work as a patient service assistant due to her neck injury. It may be that in any future assessment of damages the likelihood of the plaintiff stopping work prior to the age of 65 due to any medical conditions, such as impairment of her neck and inflammatory arthritis, will be relevant considerations. However, in deciding this application I have also allowed for the fact that at the date of the trolley incident the plaintiff was working in two jobs. Whilst various aspects of her evidence were unreliable, I was satisfied that, consistent with her uncontested evidence, from 2003 financial pressures probably had as she said prompted her to resume employment. However, I was also satisfied that following the trolley incident, probably for the same reason she persisted with her two jobs until the symptoms, particularly those affecting her right arm caused her to cease all employment.
165 Based on all the evidence, I think it reasonable to accept as proven that:
(a)
the plaintiff has no current capacity to return to her pre-injury employment which required the use of her arms in moderately heavy and repetitive physical activities;
(b)
her education, experience and work history probably only qualify the plaintiff for the work performed by her prior to the trolley incident; and
(c)
by reason of the work-related impairment of her right upper limb the plaintiff is probably currently and permanently physically unfit to perform or to be retrained to perform suitable employment that would enable her to earn 60% of her without injury earnings.
166 Accordingly, the plaintiff has satisfied me that she has a permanent loss of capacity of 40% or more[88] and, that when judged by comparison with other cases in the range of possible losses of body function, the loss of earning capacity consequence flowing from the aggravation injury is probably permanent and is fairly described as being at least very considerable.
[88] Section134AB(38)(i) and (ii).
Orders 167
In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering and pecuniary loss consequences of the aggravation injury to her right upper limb.
168 I will hear from the parties on the making of appropriate orders.
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