Kaur v Victorian WorkCover Authority
[2023] VCC 1968
•1 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-05272
| PRABHDEEP KAUR | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 August 2023 | |
DATE OF JUDGMENT: | 1 November 2023 | |
CASE MAY BE CITED AS: | Kaur v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1968 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right shoulder – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Humphries & Anor v Poljak [1992] 2 VR 129; Dordev v Cowan & Ors [2006] VSCA 254; Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Australia Pty Ltd (2009) VSCA 181
Judgment:Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota with Ms A Tate | Zaparas Lawyers |
| For the Defendant | Ms K Manning | TG Legal and Technology |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of her employment with Estia Health (“the employer”) on 4 March 2020 (“the said date”).
2The application is brought pursuant to subsection (a), and the plaintiff seeks leave in relation to pain and suffering only.
3The relevant body function is the right upper limb/shoulder.
4The plaintiff bears an overall burden of proof upon the balance of probabilities.
5By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1], Haden Engineering Pty Ltd v McKinnon[2] and Ellis Management Services Pty Ltd v Taylor[3] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2010) 31 VR 1 (‘Haden’)
[3] [2013] VSCA 326
9The plaintiff swore two affidavits and was cross-examined. She also relied on an affidavit sworn by her husband, Amandeep Khaira, on 11 August 2023. Also in evidence were medical reports and other material. I have read all the tendered material.
10Essentially, the defendant’s position was that there was a minor shoulder injury. The issue was range, with the defendant’s case simply being the consequences of any impairment of the right upper limb did not meet the statutory threshold.[4]
[4]Transcript “T” 113
The plaintiff’s evidence
11The plaintiff is forty-one, having been born in India in September 1982. She is right hand dominant. She is married with two daughters aged eight and thirteen.
12In India, she completed a Bachelor of Arts degree before training as a nurse. She came to Australia in 2007 and completed a Diploma of Community Care. She then commenced work as a personal care attendant (“PCA”).
13From October 2016, she worked as a PCA with the employer. Her duties in the dementia area in Eden Wing were very heavy and repetitive. On average, she worked 33 hours a week and was paid $25-$27 per hour.[5] She was reluctant to work more hours because it was very heavy work, and four or five days was enough physically.
[5] Claim form dated 26 May 2020 – usual pre-tax weekly earnings -$1,030
14Her duties included providing assistance to residents with meals, washing, showering, toileting and dressing. She also had to write up progress notes.[6]
[6]T7
The incident
15On the said date, the plaintiff injured her right shoulder while manually positioning a resident in bed after changing her (“the incident”).[7]
[7] Claim form- 4 March 2020, injury involving positional change of an elderly resident in their bed
16She kept working on her shift despite pain, but later reported the incident to her supervisor who recommended she see a physiotherapist at Tarneit, which she did the next day. She attended the same physiotherapist later at a Hoppers Crossing clinic. She also saw a doctor at Tarneit Medical Centre and a few days later, contacted Dr Bhargabna at Werribee at her manager’s suggestion.
17In about April/May 2020, the plaintiff had a right shoulder scan. A cortisone injection gave her short term relief. She was referred to Mr Chandrasekaran at Melbourne Orthopaedics and Trauma Institute.
18The plaintiff had an ultrasound injection of the right shoulder on 28 May 2020. From June to December 2020, she had weekly physiotherapy. In September 2020, she had a scan of her neck.
19Physiotherapy with Kriti Madan at Enrich Physio, gave her a little bit “like an improvement”, but when she started working, “it aggravated again” when she did repetitive things.[8]
[8]T8
20There was a little bit of improvement because she was on modified work during that time.[9] While she agreed there had been an improvement with physiotherapy,[10] “the pain was still there.”[11]
[9]T9
[10] Mr Chandrasekaran’s August 2020 letter
[11]T10
21As at August 2020, she was not doing much and she was on modified duties doing less stressful work, like taking lunch orders from residents, supervising them and checking buzzers.[12] She was working her 33 contracted hours, not taking the extra seven hours that she usually worked.[13]
[12] T11
[13]T12
22In September 2020, she was following a return to work plan. In October, she was given some elastic bands to exercise with at home as she could not start a gym program because of the pandemic.[14]
[14]T15
23In November 2020, she was having psychological problems.[15] She was having difficulty coping with increased demands at work. On some occasions, they left her on the floor on her own although she was supposed to have someone working with her.[16]
[15] Ms Madan’s report dated 23 November 2020
[16]T15
24She used to cry when she saw Ms Madan because they were making it harder for her to do her job. While it was suggested she see a psychiatrist, she never got a referral. COVID-19 was also making the situation worse.[17]
[17]T16
25She got a clearance from Ms Madan in December 2020 because “it was under pressure”. The public holidays were coming. Her manager and two other people made her feel like:
“why you not getting better, you should be better by now. So, they said, you should have a clearance. I don’t know why your physio taking it further and further. So, under the pressure like they said it should be okay now. So, then I have to talk to Kriti, I think my work wants me to return to work even though I’m not ready. So, then she gave me the clearance.”[18]
[18]T18
26That clearance was with restrictions as set out on the medical certificate dated 18 December 2020 - can lift up to 13 kilograms at waist level occasionally, avoid repetitive lifting, especially overhead, avoid sustained above shoulder positions and 10 minute break every two hours.
27She did not continue physiotherapy after the clearance because she “did not have any access” anymore to use any service because they were not responsible for her pain. She did not know that if she got a clearance she was still able to see a physiotherapist. She just did exercises at home.[19]
[19]T20. There had been no termination of medical and like expenses.
28After the clearance, she started taking over-the-counter painkillers – “So I was helpless, I was just in pain and I didn’t know what to do.”[20] She thought if it was her “work pain” she needed to see the general practitioner (“GP”) in Werribee, although she had her own GP in Williams Landing who “didn’t do anything with Workcover.”[21]
[20]T24
[21]T25
29She agreed as the clinical records indicated, she did not attend a GP from October 2020 until March 2023.[22] After December 2020, she did not attend My Clinic in Tarneit for her shoulder.[23]
[22]T23
[23]T24
30As at July 2022,[24] she had a sharp pain in her shoulder most of the time and it was rare to be without pain. She put her hand on her shoulder to do stretches to ease the pain, and she was careful at home to avoid aggravating it. When aggravated, the pain went down her right arm into her right hand – once or twice a month. Her right hand went numb two or three times a month. Her grip was weaker than normal.
[24] July 2022 affidavit
31She then had difficulty with anything overhead or repetitive and could not properly reach behind her back. She was limited in what she could carry, as weights aggravated her pain and she avoided heavy lifting as much as possible.
32She was then taking Nurofen or Panamax about once or twice a week, and also using heat packs and Deep Heat two or three times a week.
33Due to her injury, her husband did the heavier household chores. Cooking could be difficult if there was a repetitive component, such as stirring or cutting up vegetables. Occasionally. she had difficulty reaching up to wash her hair.
34Due to her injury, she could not play with her daughters as she once did and avoided ball sports and rough play with them. She had difficulty helping them onto play equipment at the park because of her shoulder pain, having previously been able to climb up and down with them.
35Driving aggravated her shoulder pain, so she avoided long distances and tried only to drive to work and avoided driving for entertainment. Her shoulder became stiff after driving for about half an hour.
36In April 2022, she and her family went on a three week trip to Canada to visit family. The flight aggravated her shoulder pain. Her family looked after the luggage. She also travelled to India on two occasions. She really did not do much on those trips.[25]
[25]T34 and T36
37Her sleep as at July 2022 was poor due to pain, and once or twice a week, she got up at night to get a heat pack. She avoided lying on her right side as it was too painful. Her shoulder injury had had a negative impact on her sex life.
38The pain made her irritable and she got upset at her children and husband frequently, and was frustrated by her pain and limitations.
39She was houseproud and used to enjoy having a clean home. She had modified the way she did things around the house because of her injury, for example taking out small loads of washing from the machine at a time. She also had to wait to be helped with heavier tasks. She could no longer handwash clothes. Her husband worked long days so it was very hard for him to help her, but he tried.
40She used to enjoy bike riding as a family, but avoided cycling as it would have aggravated her shoulder.
Work
41From the time of the clearance by Ms Madan in December 2020 until her employment was terminated in early 2022, she was doing normal duties:
“Even the physio wrote, like, some avoidance, but no. They gave me all the work I used to do, and I started working all that, and it started aggravating my pain – the shoulder, so I become casual.”[26]
[26]T26
42After her clearance, she took painkillers and used heat packs when doing her normal duties.[27]
[27]T21
43In October 2021, she started a job at the Alfred that was “really different” from her work with the employer. She could concentrate on her study. At that stage her aim was to get lighter work.[28] When she started at the Alfred, she decreased her hours with the employer because her pain was “starting – getting worse.”[29]
[28]T100
[29]T29
44She did not think that she would have been able to work a lot of hours at the end of 2021,[30] but she accepted that in one fortnight in late 2021 she worked 24 hours at the Alfred and 55 hours with the employer. She did so because she needed the money to pay for the exams. She had to pay for another test, had to look after her family and her mortgage and her husband was already upset she had paid $10,000. She was still trying her best to manage everything with medication and Deep Heat.[31]
[30]T74
[31]T101
45She needed her pay slips to clarify the hours worked at the Alfred when still working for the employer.[32] She accepted the summary of her payslips and also confirmed that she had reduced her hours with the employer leading up to termination of her employment.[33] The summary indicated that in late 2021, she was working on average 24 hours a fortnight at the Alfred and 45 hours per fortnight with the employer.
[32]T73
[33]T88
46In early 2022, she reduced her hours with the employer to seven a fortnight and went casual because all the physical demanding work was aggravating her shoulder. She advised the employer the reduction was due to family reasons not her injury, as she was afraid they would terminate her employment. [34] There were no real family reasons:
“we all have like yeah, those ones, not like anything special…. It’s partial true, because as I sent email to Bella regarding – that I said due to the family circumstance I was scared they’re gonna terminate me if I say – okay it is – the pain is getting worse, I – I was scared my work are gonna terminate me, but that’s what they did after that.”[35]
[34]T33
[35] T32
47She “resigned from permanent in February 2022”.[36] She advised the employer on 2 February - “I’d like to resign from my permanent shifts due to family circumstances. Now on I want to work as a casual employee … Kind regards.”
[36]T27
48The employer responded on 3 February, advising it was sorry to hear of her resignation and asked the effective date.
49When it was suggested she also told medico legal examiner Associate Professor (“AP”) Goldwasser that she wanted to stop being permanent with the employer, in part because of her shoulder problem and in part because of other family responsibilities, she explained - “Because that’s what I said to my work as well, that’s why I do not – when I said that I can’t recall properly. I don’t know, it’s – maybe English is my second language, so I said that and it is misunderstood somewhere.”[37]
[37] T33
50As of July 2022, she was working at the Alfred as an assistant in nursing on a casual basis. She worked about fifteen hours a week earning $31 per hour and $45 per hour on the weekend.
51There was less pushing, lifting and pulling compared to working with the employer, and there was less stress on her shoulder. The work was mainly in infection control, such as working in ICU as a PPE spotter. Sometimes, she helped the nurses in the ward. The patients there were more independent compared to those cared for by the employer.
52She tried not to take on too many shifts at the Alfred as she did not want to overdo it and then she would not be able to work at all. She and her husband had a mortgage, and if she could work more, then the kids could have everything they wanted.
53Her role as a spotter at the Alfred ended in about June 2023. Whilst working there, she also obtained work in about September 2022 at the Royal Melbourne Hospital (“RMH”) as a health assistant in nursing. Across the two hospitals, she was working between two to three, eight hour shifts a week.
54Although she was not physically feeling well, she got the opportunity to do the RMH job with no physical work.[38] It is predominantly weekend work and she was doing that at the same time as the Alfred until July 2023. The rest of the time she was studying or just wanting to give herself a rest. She did not have increasing demands with her children; that situation was always the same.[39]
[38]T103
[39]T104
55She is now a casual at the RMH and she mainly works one on one, supervising patients who have behavioural issues or are at risk. She works three eights hour shifts a week, and is paid $30 per hour during the week, and $50 per hour on the weekend.
56Working these shifts, she generally experiences greater pain in her neck and right shoulder region, so she does not think she could work more hours or days than she is doing currently.
Nursing qualifications
Affidavits
57Pre-incident, she was in the process of obtaining recognition of her nursing qualification in Australia and had been unable to complete further study because of her injury.[40]
[40] July 2022 affidavit
58In May this year, she started an 18-month Diploma of Nursing. She is still in the first semester. She is required to do four hours of theory and work online four days a week. Each semester, she will also be required to do a three week placement at aged care facilities and hospitals. She finds her right shoulder gets stiff and sore if she sits at a computer for long periods, so she tries to alternate her position, do stretches and exercises.
59She is worried that she might not be able to work as a nurse at the end of the course because of her right shoulder and neck pain and limitations, but remains hopeful that one day she may be able to return to some form of nursing, as she has always loved working as a nurse and helping patients.[41]
[41]August 2023 affidavit
Cross examination
60As she was trained overseas, in 2019 she had to complete a Graduate Diploma of Nursing in Australia and then get approval to be a registered nurse. She had to do a NCLEX course and then a further practical course. To do so, she needed to “really thorough study sitting down and studying lots” so that she cleared both tests and then got through to registration.[42]
[42] T5
61She could not continue to study due to her shoulder injury and lots of pain, and everything just getting worse after her injury.[43]
[43]T5
62The NCLEX-RN exam had two components – one theory and the other practical in a workshop. The theory involved a lot of study and a lot of time, and she could not do it after the injury “and waited maybe it get better”. She started the theory before the injury. She had paid her fee to the AHPRA but she could not do the remaining units. She never finished the theory. As she had not finished the theory, she could not start the workshop.[44]
[44]T7
63Having done the undergraduate one year Diploma of Nursing, she could have got her registration if she studied further, but because of this injury and pain she had to stop. Now she has to start again, become an enrolled nurse and then go further.[45]
[45]T38
64She actually started the NCLEX course to pursue her registration in Australia. She did that at AHIN (Australian Health Institute of Nursing) and got the certificate in 2019.[46]
[46]T66; Diploma of Nursing - tendered day two of the hearing.
65She is still in pain and is struggling. She has already lost two or three years, and could have done her nursing by now if she did not have that pain or injury. Now she wants to start again somewhere, and that is why she is starting the course and is hoping to finish it.[47]
[47]T39
66On day two of the hearing, in addition to producing the Diploma or Nursing, the plaintiff provided an Enrolment Invoice Receipt Statement dated 27 March 2018 showing a payment of $10,000 for that Diploma.[48]
[48]T80
67She also provided documentation relating to the Nursing Career Advancement Program involving an online course of 12 weeks from April to July 2021. She paid for this course on PaySmart with six instalments of $250. She got a credit of $2,000 on the total of $3,500 because she had already completed the Diploma of Nursing.[49]
[49]T81
68For the first time, she mentioned that having got the Diploma, she just wanted to take a break, a bit of a rest, because it was a one year course and she was doing a lot of study.[50] She was working less at that time and working and studying was too much for that year so, “I wanted to take a break and my plan was to start the year and NCLEX preparation for to doing my- continue to the pathway to get registration.”[51]
[50]T81
[51]T82
69She did not do the course in 2020 because she had the shoulder injury. She was going to work as well, going to physiotherapy and attending doctors’ appointments and it was very stressful. After getting the Diploma, she was proposing to have about six months off to earn extra money for all the expenses of the course that would be coming up.[52]
[52] T82
70She was not studying at the time of the incident and had last studied in 2019. The Diploma was part of the pathway “altogether”. She had to finish the NCLEX and OSCE to practise as a nurse in Australia.[53]
[53]T83
71In 2021, she started further study and did the preparation course for her exam. She did not do the exam in 2021. With all of her pain, she could not concentrate on her studies and she needed a lot of time to prepare for them.[54]
[54]T84
72She is now doing the SEN course and intends to do a Bachelor of Nursing to be a registered nurse. Nursing is all not physical. Her plan was “to move in the administrative tasks … so (she) can still continue her profession but in a lighter way.”[55]
[55]T85
73When cross-examined about her evidence the previous day that she actually was studying and was having difficulty with a physical component as a result of the injury, she explained that she “mixed it all up”. She did not remember all the dates. She had finished the Diploma before the injury, but all the later courses were interrelated. She had paid $10,000. It was no use having a Diploma if she could not do the NCLEX. She had mixed up her dates “and stuff” as there were so many things happening and she was nervous and mixed it up. She agreed she had never tested the physical part of the training post incident.[56]
[56]T91
74When doing the preparation course in 2021, she was working normal hours and had been certified fit for normal duties. She was trying her best and was hoping to do the course, but because of her pain, she could not concentrate. She was not exactly sure whether or not she could do the course because of the pain and things going on in her life. She was unsure how much time in 2021 she had to spend online studying, but it was probably three to six hours a week.[57]
[57]T95
75While she thought she would have difficulty with nursing because of the injury and pain, she “knew that was another aspect – I have to think and it’s always there.”[58]
[58]T94
76The timing of the exams depended on the AHPRA.[59] She was too sore to sit the November 2021 exam. She was struggling with her shoulder injury and trying to do her best. By March 2022, she was trying to settle her pain with her painkillers and using heat packs. She then failed the exam in March and failed again in November that year.[60]
[59]T96
[60]T100
77It was “partially” inaccurate”, when she deposed in her first affidavit she could no longer study because of her injury.[61] She was talking about the whole course. She did not tell doctors about her problems studying because it did not have anything to do with work.[62] She answered what they asked and they do not want to hear about her study.[63]
[61]T106; see paragraph 57 of this judgment
[62]T108
[63]T109
Current condition
78Her pain and other consequences are now generally consistent with what she had earlier deposed to.
79In about March 2023, she returned to Werribee for treatment. Her old GP, Dr Rajaee, had left the practice, so she saw Dr Jacob. She told him that her shoulder pain was not going away. He referred her for an ultrasound and x-ray. He also referred her to Enrich Physiotherapy in late March, but she was still waiting for WorkCover approval.[64] She was confused about what was involved with this referral, and thought that somehow it required WorkCover approval.[65]
[64]T25
[65]T59
80She emailed her GP on 16 May 2023 requesting a copy of the referral for physio which she was given on the previous visit as she could not find her copy.
81Dr Jacob prescribed Mobic for her right shoulder pain. It upset her stomach so she stopped taking it after the prescription ran out.[66] She tries to avoid taking medication as much as possible because of this side effect.
[66]T56
82She returned to Dr Jacob in March this year because she was in worse pain and her shoulder was getting stiff and frozen. She wanted to see if she could get some treatment and physiotherapy maybe to help her again.[67]
[67]T57
83While she had not gone to the doctor for over a year before then, she was now “struggling from the last two or three years, so (she) wanted to do something.”[68] She wanted to see if she was still able to claim for some treatment. She was getting too much pain and struggling with her day to day life.[69]
[68] T57
[69] T57-8
84Before that, she was struggling but did not know what to do. Before the incident, she had always had a healthy lifestyle and had never seen doctors. She denied she went back to the GP because the hearing was coming up.[70]
[70]T58
85She had not gone to her GP in that time because she was not aware of the system. She thought if she had got a clearance, it means she was not able to take any services anymore. She thought she had to deal with it by herself.[71] She denied as a PCA she knew how the system worked. Having got a clearance, she was scared if she did not work they were going to terminate her. Even if she was struggling with all these things, she was still working.[72]
[71]T101
[72]T102
86On average, she now takes Nurofen three nights a week, and Panamax about three days a week for neck and right shoulder pain. She regularly applies heat packs to the area together with Deep Heat about four days a week.
87On some occasions when the pain is severe, she takes more than four Nurofen and Panamax, but painkillers gives her stomach problems and medication causes burning.[73]
[73]T72
88About twice a week, she has to get up during the night and take some Nurofen. She continues to avoid sleeping on her right side. Her neck and right shoulder pain continues to affect intimacy with her husband, which upsets her greatly.
89Most days, she does right shoulder exercises which she was shown by her previous physiotherapist.
Activities
90She does much less housework now. She used to do a lot before her injury – “It is very limited now, everything.”[74]
[74]T40; she then needed to have a break when she got upset talking about restrictions at home and with her family
91Some days, she is not able to housework and activities.[75] When she has worse pain in her shoulder, she avoids those activities. She is not able to vacuum. She did not remember exactly telling Work Able various things about her ability to do vacuuming but she did not do the vacuuming after her injury, except for a little bit in the kitchen.[76] She used to enjoy being in the garden and weeding, but not now. She did not know why the vocational assessor “changed all those words”. She told the assessor that she used to do those various activities but now does them less because of her restrictions. Her husband does most of the housework and all of the gardening.
[75]T44
[76]T45
92Her problems with sleep continue. She did not tell Work Able that her sleep is normal.[77]
[77]T43
93Her religion is a big part of her life. She stays at the temple for 10 or 15 minutes and then has to go home because she cannot fulfil the “long time sitting and listening”.[78]
[78]T46
94She has problems sitting watching a film with her children. She is not going to her sister’s wedding in India because it is too far to travel.[79]
[79]T47
Pain
95Her pain is on her shoulder, and it goes to her neck three to four times a week. She always shows the doctor the location of her shoulder pain. She indicated this by putting her hand on the area of her bra strap.[80]
[80]T49
96Having been taken to her varying descriptions of her pain to Mr Asaid in October 2022,[81] Dr Weekes on 20 July 2023,[82] and Dr Barton in May 2023,[83] she confirmed that, overall, she told the doctors how she was feeling at that time. She is never without pain. She disagreed she told Dr Barton she had no neck pain.[84]
[81]T49
[82]T51
[83]T54
[84]T55
Neck pain
97She did not mention any neck issue in her first affidavit (other than a CT scan) because it was most of the time her shoulder; her shoulder was the main problem and creating all the problems.[85]
[85]T63
98On 26 July 2023, she had an MRI scan of her neck.
Lay evidence
99The plaintiff’s husband, Amandeep Khaira, a full-time truck driver, swore an affidavit on 8 August 2023. They married in February 2009.
100Pre-incident, the plaintiff was generally happy and loved her job, and was very houseproud. She loved bike riding and playing with their daughters at the park.
101She has changed a lot since the incident and she gets angry and irritated very easily. She tells him she is frustrated by her pain and how much her life has changed.
102She complains of pain and takes Nurofen and Panamax. She rubs Deep Heat into her shoulder. He often massages her shoulder. She does regular exercises.
103She has problems sleeping because of her right shoulder. Their intimate relationship has been affected due to her right shoulder and neck injury.
104She does not go with the family anymore on bike rides and her injury affects her ability to play with the girls.
105She previously did most of the housework but he now does most of the heavy stuff. He now cooks a lot more and he still has to help her when she cooks. He generally does the grocery shopping now because it is difficult for her to lift heavy bags.
106The plaintiff has problems sitting at the computer studying.
107Since the incident, she has never been the same, although she continues to try and do as much as she can. She is very limited in what she can do.
Treaters
108The plaintiff has had physiotherapy from Kriti Madan and Shalini Sharma at Enrich Physiotherapy. She first attended in June 2020 with complaints of right shoulder pain which started in March 2020.
Ms Krita Madan, physiotherapist
109Ms Madan wrote to the insurer on 16 September 2020.
110She reported that the plaintiff had shown improvement in terms of function with ongoing physiotherapy twice weekly. She advised on a home exercise program for self-management. She definitely recommended having hydrotherapy/gym once the COVID-19 restrictions eased.
111She also suggested the plaintiff continue with supervised therapy to be able to help her reduce her myofascial pain, encourage her for ongoing home exercise, and help in a smooth, gradual return to work.
112She thought the plaintiff would benefit from a more gradual return to work in a timeframe of 10 to 12 weeks, as mentioned in the IME Report, rather than six weeks in the certificate of capacity, owing to the nature of her pre-injury duties.
113The plaintiff mentioned her pre-injury work involved pushing patient wheelchairs and trollies which sometimes could weigh close to 100 kilograms. The timeframe mentioned would give her adequate time to build up strength and endurance in her shoulder and upper back muscles to be able to push/pull heavy patient trollies and wheelchairs.
114A new allied health treatment and recovery plan was attached.
115In a report to the GP dated 24 September 2020, Ms Madan advised that the plaintiff reported to be feeling better with ongoing physiotherapy. Her outcome measure scores had shown significant improvement for both shoulder pain and disability index.
116A capacity assessment was conducted for the plaintiff on 28 September, and she had been issued a certificate of capacity on the basis of the assessment. Details of the plaintiff’s capacity were as follows:
· can lift up to 8-10 kilograms below shoulder level occasionally;
· can reach overhead and lift up to 1 kilogram above shoulder level occasionally;
· can push/pull 50-60 kilograms occasionally;
· break of 5 to 10 minutes every hour to stretch.
117Ms Madan met with the plaintiff and return to work coordinator to discuss a return to work. She and the return to work coordinator agreed on a gradual return to work over the next 8 to 12 weeks, which would give the plaintiff enough time to incorporate pre-injury tasks and step them up gradually.
118On 13 October, Ms Madan wrote to the case manager requesting free weights and dumbbells for the plaintiff, which would be of benefit in a home exercise program.
119On 23 November 2020, Ms Madan wrote to the case manager requesting psychology for the plaintiff.
120She advised that the plaintiff had expressed over the previous week being anxious and having difficulty coping with her increasing demands at work. She had expressed those concerns during the return to work meeting. The plaintiff expressed feeling anxious and depressed due to an increase in her symptoms last week post-work, when her duties were stepped up more than she anticipated.
121Ms Madan advised that the plaintiff had been doing well so far with home exercises, and had been regular with her physiotherapy. She had improved functionally and was on track with a return to work plan but, since last week, expressed concerns about her return to work duties. She thought the plaintiff was developing psychosocial components to her pain, and felt psychology sessions would help her cope with the same and assist in ensuring her return to pre-injury duties.
The defendant relied on the clearance certificate of capacity signed by Ms Madan on 18 December 2020, setting out that the plaintiff had a capacity for pre-injury employment from 19 December 2020.
Mr Siva Chandrasekaran, Orthopaedic Surgeon
122Dr Rajaee referred the plaintiff to orthopaedic surgeon, Mr Chandrasekaran, in July 2020. He then advised the GP to continue physiotherapy and work restrictions with a follow-up in six weeks.
123On examination, forward flexion and abduction were to 180 degrees. Internal rotation was to 60 degrees and external, 50 degrees. Impingement and biceps irritability signs were positive.
124Mr Chandrasekaran reviewed the plaintiff for her right shoulder subacromial bursitis in late August 2020.
125On examination, forward flexion and abduction were to 180 degrees. Internal and external rotation were to 45 degrees. Impingement and biceps irritability signs were negative.
126The plaintiff’s pain was improving with physiotherapy. The plan was then to continue physiotherapy and a home based exercise program. There was to be a gradual return to normal work duties, with an increase to normal duties one day a week until full duties in six weeks. There was no further follow-up unless pain increased, then for consideration of a corticosteroid injection.
Dr Vidya Jacob, current GP
127Dr Jacob referred the plaintiff to Enrich Physio on 27 March 2023. He advised the plaintiff “was under Workcover, initially noted 2021 while working in aged care”.
128On 1 March and 27 March 2023, the plaintiff told Dr Jacob that she had intermittent pain using her right shoulder. On the first visit, he noted the onset of right shoulder pain over last few months. On the second visit, he prescribed Mobic and referred the plaintiff to Enrich Physiotherapy. He also noted “Workcover claim still open.”
129Dr Jacob, wrote to the plaintiff’s solicitors in July 2023, advising that he had seen her on a few occasions since March this year for recurrence of right shoulder pain relating to a WorkCover injury for which she had previously seen his colleague.
130The diagnosis was right shoulder subacromial bursitis. Treatment to date was oral NSAID – Meloxicam, 15 milligrams daily, and physiotherapy under WorkCover.
131It was a long term issue since 2020 with partial symptomatic improvement but no resolution. Likely a chronic condition requiring specialist input. Impact on work and mental wellbeing.
132The condition would be aggravated with repetitive strain on the shoulder. There was no current capacity for pre-injury work. There was also an impact on personal wellbeing and limitations to work capabilities, impact on self-esteem, depressed mood and worry about capacity to care for family, limitation on activities of daily living and the ability to carry out domestic duties. There was also impact on sleep due to pain and also on mood.
133The condition improved with rest, physiotherapy and avoidance of triggers and had stabilised.
Investigations
134An April 2020 ultrasound of the right shoulder was reported to show thickening of the subacromial bursa in keeping with some changes of bursitis. There was no rotator cuff tear or impingement seen.
135Following a cervical spine CT scan on 1 September 2020, it was reported that there was no spinal canal or neural exit foraminal stenosis. There was established osteoarthritis involving the first costovertebral joint bilaterally more severe on the left. It was noted, “Does this correlate to the site of the patient’s pain?”
136There was an x-ray and ultrasound of the right shoulder in March 2023. On ultrasound, it was reported the rotator cuff tendons and longheaded biceps tendon were intact. There was subacromial bursitis without impingement. The acromioclavicular joint was normal and there was no posterior joint effusion.
137Following a further MRI of the cervical spine in July 2023, it was reported there were no significant abnormalities identified.
Medico-legal
AP Goldwasser, Orthopaedic Surgeon
138AP Goldwasser saw the plaintiff in March 2022 on the defendant’s behalf for the purposes of an impairment assessment.
139The plaintiff then reported pain was the biggest problem which she noticed at the back of her shoulder. It was at least 50 per cent of the time and worse with reaching or attempted heavy lifting.
140On examination, there was some limitation of right shoulder movement.
141He thought the plaintiff suffered a soft tissue injury to her right shoulder consistent with the incident history.
142By letter dated 28 March 2022, EML advised the plaintiff that following this examination, liability had been accepted for the right shoulder soft tissue injury but rejected for the back, neck and psychological condition.
Dr Asaid, Orthopaedic Surgeon
143Dr Asaid first saw the plaintiff in October 2022.
144She then described constant sharp pain predominantly affecting the right paraspinal region of the cervical spine, radiating to the top of the shoulder and down her right arm, with occasional numbness and tingling down her right arm.
145The April 2020 right shoulder ultrasound demonstrated thickening of the subacromial bursa in keeping with some changes of bursitis. There was no rotator cuff tear or impingement seen.
146On examination, rotator cuff strength was normal, impingement signs were negative. There was tenderness to palpation over the right upper trapezius and evidence of right paraspinal muscle spasm. Abduction was to 140 degrees, forward flexion to 160 degrees and external rotation to 40 degrees.
147He diagnosed musculoskeletal neck pain, right shoulder soft tissue injury. Based on the clinical examination findings, the majority of the plaintiff’s symptoms appeared to be related to her cervical spine condition.
148The plaintiff was then not able to perform pre-injury duties and had restrictions on pushing, pulling and overhead activities for the foreseeable future.
149On re-examination in April 2023, he confirmed his earlier views as to the plaintiff’s work capacity.
150The plaintiff then reported that her overall condition remained largely unchanged. Examination findings were relatively similar to the first examination.
151An x-ray of the right shoulder in March 2023 demonstrated alignment anatomically. No acute injury, no other bone abnormality, and no joint abnormality or other abnormality. The results of the March 2023 ultrasound and July 2023 cervical MRI of July 2023 were also noted.
152Given the absence of pathology on the July cervical MRI, the plaintiff’s condition was more in keeping with a soft tissue injury to the right shoulder and neck, with the subsequent development of chronic neck and right shoulder pain.
153In a supplementary report of August 2023, he thought the plaintiff, on the basis of her right shoulder alone/neck alone had a capacity for part time work at a maximum of 24 hours as NDIS coordinator, pathology collector, interpreter, teacher’s aide and property manager, as suggested by the vocational assessor. Any attempt to increase her hours should ideally be done in conjunction with her treating practitioners and would be largely dependent on her symptoms.
154The role of an enrolled nurse was likely to be beyond her capabilities given the difficulties she had with performing more strenuous tasks and the activities she reported that aggravated her pain. As CoWork noted, the physical demands of this job are assessed as heavy. As such, he thought the plaintiff was unlikely to be able to perform this role on a reliable and consistent basis.
Dr Gavin Weekes, Pain Specialist
155Dr Weekes saw the plaintiff in July 2023.
156She then described intermittent neck pain present every day, on average 6 out of 10. She also described ongoing right shoulder pain which was less severe and was on average, 4 out of 10. That pain was more intermittent and not there every day. She described a radiation of that pain which could travel to her right wrist, and also other neurological symptoms such as numbness.
157On examination, shoulder motion was limited to approximately 130 degrees on abduction and flexion. The plaintiff had significant tenderness over the right side of her neck all the way down to the upper thoracic region.
158He diagnosed aggravation of cervical spondylosis and right shoulder subacromial bursitis. The condition had stabilised and was unlikely to change substantially over the course of the next year.
159The plaintiff’s employment was a material contributing factor to her current condition. She suffered from a pain condition which was caused materially by the incident injury. This condition was likely to continue indefinitely.
160The plaintiff had no capacity as a result of her physical injury, and right upper limb impairment to perform pre-injury duties on a permanent basis. She was also restricted in relation to social, domestic and recreational activities. Her prognosis was poor.
161Dr Weekes provided a supplementary report, having been forwarded the August 2023 CoWork vocational labour market report. In general, the plaintiff’s ability to obtain and maintain the suggested roles on a reliable and consistent basis would be extremely limited.
162On review of the suggested roles and the plaintiff’s presentation, he thought she did not have the capacity to fulfill the role of an Enrolled Nurse.
Defendant’s medical evidence
Medico legal
Dr John Owen, Orthopaedic Surgeon
163Dr Owen saw the plaintiff in August 2020 to consider the plaintiff’s weekly payments entitlements.
164On balance, he thought the plaintiff’s condition related to cervical spine discogenic pathology. The work related condition had not completely resolved. He expected her to be able to return to normal duties and hours within three months.
Dr Anthony Menz, Orthopaedic Surgeon
165Dr Menz examined the plaintiff in March 2023.
166The plaintiff told him that at rest and doing minimal work, she would rate her shoulder pain as 1 to 2 out of 10, and on a bad day, 7 to 8 out of 10. She would have about nine bad days a fortnight.
167The plaintiff told him of the incident and subsequent treatment, including 12 months physiotherapy and, that by the end of December 2020, she was given a clearance to return to full time work.
168The plaintiff advised that her shoulder pain returned after a few weeks of work, but she did not indicate this to the employer as she did not want to lose her job. She ceased work with the employer in April 2021[86] because of pain.
[86] Wrong date
169The plaintiff had already started another job at the Alfred Hospital as a PPE spotter towards the end of 2020, and continued doing it at that time, working about 16 hours a week.
170The plaintiff felt her shoulder pain overall was the same as it was three years ago. At rest, she got very little pain, but working aggravated her shoulder. She continued to do home exercises.
171On examination, the plaintiff had a very good range of movement in her right shoulder.
172Dr Menz had available the April 2020 ultrasound of the right shoulder and the September 2020 cervical spine CT scan.
173He noted the plaintiff “claimed” to have hurt her right shoulder helping to transfer a patient. He thought that certainly appeared to be a minimal traumatic event, but she continued to complain of significant right shoulder pain. Also, the ultrasound showed minimal, if any, pathology in the shoulder joint and mirrored changes which could be age related and predated the injury.
174The plaintiff would have sustained a minor soft tissue injury to her right shoulder which should have resolved in three months. The prognosis should be for an excellent recovery within that time. However, it was now three years and the plaintiff continued to complain of the same level of pain for which he did not have an explanation.
175The degree of trauma sustained by the shoulder and the degree of pathology found was minimal. The ultrasound was almost normal. He could not explain why the plaintiff continued to have right shoulder pain three years after such a minor event.
176He believed there was a significant functional component associated with the perpetuation of the plaintiff’s symptoms. Any work related contribution to her right shoulder would have resolved within three months, and he did not understand why the plaintiff continued to have ongoing symptoms except for a functional approach to it.
177However, the plaintiff was retrenched by the employer as she was not able to continue doing pre-injury form of duties. She did have the physical capacity for those duties and should be able to undertake them now, noting her current non-physical job of 16 hours a week.
178The plaintiff certainly had a capacity for suitable employment with the hours and type of work to be determined by a return to work consultant who would be at the workplace. She was now physically able to return to other duties that can be found for her.
179He thought the plaintiff did not present with any signs of abnormal illness behaviour or conscious or unconscious exaggeration.
180He did not change his opinion having read the reports of Dr Asaid and Dr Shan.
Dr David Barton, Consultant Occupational Physician
181Dr Barton examined the plaintiff in May this year.
182The plaintiff ‘still’ described some pain around the top of her right shoulder blade area associated with some limitation of movement. She said she could not do anything overhead or away from her body with her right arm. If she did extra work she got some occasional pain in the right arm.
183On examination, careful measurement of arm circumference showed the right and dominant arm was to be of slightly greater muscle bulk than the left. There was no particular area of right shoulder tenderness. All shoulder movements were reduced by about a third with some reported pain. There was a full and normal range of neck movement with no tenderness. Clinical examination failed to identify any particular organic problem.
184He would accept there may have been a mild and temporary soft tissue injury in the area of pain, but that physically, the plaintiff would have recovered from this shortly after the onset. Physically, he believed her short and long term prognosis was excellent, as there was no evidence of any ongoing physical problem.
185He did not believe employment caused any particular aggravation or whatever of any pre-existing problem. The plaintiff’s condition had long since resolved, as would normally be expected after such a simple activity.
186He could see no reason why the plaintiff could not continue to work normally, and believed her reluctance to do so had more to do with her illness belief and poor medical treatment.
187The plaintiff could work in all the areas suggested in the April 2023 vocational report. She had the capacity to complete any necessary training.
188There was evidence of some abnormal illness behaviour and a strong illness belief with some minor inconsistencies and exaggeration.
Dr Dush Shan, Consultant Psychiatrist
189Dr Shan examined the plaintiff in April 2023 via tele-health.
190He thought there was no mental injury. The prognosis was good unless there was a substantial worsening of the shoulder injury.
Vocational assessment
191In April 2023, Holly Ross, occupational therapist, conducted a vocational assessment on behalf of CoWork.
192On interview, the plaintiff indicated she was independent with personal care although she had occasional difficulty washing her hair due to pain. She keeps the house clean and while performing various domestic tasks, she paces completion and implements minor modifications such as lighter laundry loads and taking frequent breaks. She reported that her sleep was normal – she avoided sleeping on her right side preferring to sleep on her left.
193The following suitable employment options were suggested for the plaintiff – Disability Services Officer, Pathology Collector, Enrolled Nurse, Interpreter, Teacher’s Aide and Property Manager.
194In terms of the Enrolled Nurse role within any nursing environment, the plaintiff may need to consider the specific roles and associated physical demands, as it will be within a suitable environment that she is likely to feel confident and comfortable to work longer hours.
195The physical demands of this job are assessed as heavy in the Job Markets database therefore, the plaintiff is advised to consider the specific position and associated physical demands.
Overview
196It is not disputed that the plaintiff suffered a soft tissue injury to her right shoulder in the incident.[87] There has been no rotator tear or impingement shown on investigations, only a suggestion of some bursitis.[88] However, in issue is the role, if any, played by that injury in her condition as at the date of hearing.
[87] 3 June 2020 statutory benefits claim accepted, 22 March 2022 impairment benefit paid
[88]April 2020 ultrasound
197It is the impairment not the injury which is the relevant consideration in a serious injury application.[89] I must be satisfied that the consequences of any incident related impairment are both serious and long terms as at the date of the hearing.
[89] Humphries & Anor v Poljak [1992] 2 VR 129 at paragraphs [40]-[50]
Credit
198As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[90]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[90]Haden at paragraph [12]
199Counsel for the defendant submitted the plaintiff was an unreliable witness, “although that may not be intentional or evasive.” There were aspects of her evidence she cannot recall and her evidence is simply not reliable, like her description of the site and nature of her pain which is different in her affidavits, her viva voce evidence and histories to doctors. Accordingly, she is either unreliable or her pain is not that great.[91]
[91]T116
200Further, in her first affidavit there was only one mention of a neck issue and that was reference to a scan.[92]
[92]T117
201In response, it was submitted the plaintiff was a frank, honest, forthright woman who did her best to give evidence truthfully. There was no issue medically from doctors to say she was feigning or malingering or exaggerating, although Dr Barton “seems to be the only one sitting on that fence. It should be accepted the plaintiff was a credible witness.”[93]
[93]T129
202It was submitted any inconsistencies in the plaintiff’s evidence about taking a break in the nursing course should be considered in the context of it being a process. She intended, having done the diploma, to proceed to the next step and that was the situation as at the time of injury. Why would she pay the $10,000 in 2019 if she did not intend to do further study? She loved nursing and loved her job, and she has made a lot of effort going towards qualification and she is still trying.[94]
[94]T131
203In my view, while the plaintiff tried to give her evidence truthfully, she was confused about a number of important issues – particularly her nursing studies – and not a particularly reliable witness. At times she had difficulty expressing herself, although her English is good. This may have also been the case when examined for the purposes of this application.
204However, Dr Barton is the only examiner who had concerns about the genuineness of the plaintiff’s complaints finding there was evidence of some abnormal illness behaviour and a strong illness belief with some minor inconsistencies and exaggeration. Dr Menz did not share his view. While the plaintiff had been under surveillance, no film was shown during the hearing.
205I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors,[95] that in this type of case, a plaintiff’s credibility is relevant not only to whether her evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[95][2006] VSCA 254 at paragraph [14]
206Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to her credit.
The dispute on the medicine
207There are differing medico legal opinions whether there is any incident related soft tissue injury that is contributing to any current shoulder problem.
208Counsel for the defendant relied on the opinions of both Dr Menz and Dr Barton who thought that there was only a minor soft tissue injury which should have resolved. It was submitted Dr Weekes and Dr Asaid should not be accepted because they rely on inaccurate histories/ description of site and cause of the plaintiff’s pain.[96]
[96] T124
209It was also submitted, in any event, Dr Weekes did not give a path of reasoning why he still implicated the neck in his second report after the plaintiff’s neck radiology was normal.[97] He also thought there was a pain condition, but did not say whether it was organic or not.[98]
[97]T124
[98]T118
210The plaintiff relied on AP Goldwasser’s assessment in mid-2022 which formed the basis of the acceptance of an impairment benefit – acknowledgement by the defendant of a permanent and organic injury.
211It was also submitted Dr Barton and Dr Menz were simply wrong when they said the soft tissue should have resolved. It had not.[99]
[99]T138
212I was not greatly assisted by either argument. I found neither particularly persuasive, both lacking a path of reasoning for their opinion. The onus is obviously on the plaintiff in this application. The experts relied on by the plaintiff did not explain why a soft tissue injury continues to restrict the plaintiff at the present time as she claims.
Plaintiff’s progress since the incident
213What has transpired since the incident injury is a relevant consideration when considering the issue of causation/ ongoing contribution in this application.
214On the defendant’s behalf, it was submitted any work related injury had resolved.[100]
[100] T123
215There had been a gradual but consistent improvement aided by physiotherapy as Ms Madan reported throughout 2020. In August that year, Mr Chandrasekaran recorded a good range of movement and thought there should be a gradual return to normal duties.[101]
[101]T114
216Also at that stage, the plaintiff was moving to a home-based or self-managed treatment, indicating Ms Madan thought she was doing well and moving in the right direction. Ms Madan also noted there were psychological factors at play in November 2020.[102]
[102]T114
217While a clearance to work in December 2020 had some restrictions, it was submitted the “proof was in the pudding” in that the plaintiff had gone back to her normal duties and later took on further work with the Alfred.[103]
[103]T115
218Having ceased physiotherapy in December 2020, the next time the plaintiff saw a doctor for her right shoulder was in March 2023. There were no prescription injections, physiotherapy or surgery. It was submitted it should not be accepted that she was ignorant of the process having already engaged in physiotherapy.[104]
[104]T120
219The plaintiff has had minimal over the counter medication. The last prescription for Prednisolone was in April 2020. Although Mobic was prescribed earlier this year and gave her stomach problems, she did not ask for an alternative.[105]
[105] T121
220The plaintiff got a referral for physiotherapy in March this year but had done nothing with it in circumstances where there has been no termination of medical and like expenses and she should have been aware of the process.[106]
[106]T121
221In late 2021, the plaintiff was working nearly full time hours. While there was a reduction in hours in early 2022 before termination of her employment in April, it was submitted the plaintiff’s resignation in February 2022 was due to family issues – confirmed by her email and the history to AP Goldwasser.[107]
[107]T115
222The plaintiff started a new job at the RMH in September 2022. She did not resign from the Alfred in July 2023; her job just ended with COVID-19 restrictions being lifted.[108]
[108]T116
223The plaintiff’s case was that the plaintiff is a stoic and continued working despite pain.[109]
[109] T138
224She did not go to the doctor or physiotherapist because she thought a clearance to work meant no further treatment. She was not knowledgeable about the system.
225She did not seek further treatment or complain at work as she had reason to fear her employment being terminated because that happened the next month after she asked to go casual.[110]
[110]T132
226In my view, the plaintiff’s shoulder condition had largely settled by the end of 2020 when she received a clearance to work from Ms Madan. While that clearance contained some restrictions on the work to be undertaken, they were not great. There is no report from Ms Madan beyond the clearance certificate.
227The plaintiff demonstrated the capacity to do her duties full time for over a year. She was able to complete the preparation course which ran from April to July 2021. Payments for that course totally $1,500 had been completed by mid 2021. She then took on the Alfred job in October 2021. Significantly, at the end of 2021 she was working nearly full time hours at both employers as her payslips indicated.[111]
[111] T87
228She then decided in early 2022 to reduce her hours with the employer. While she claims that was to do with her shoulder, she advised the employer and later AP Goldwasser that this request was as a result of family commitments.
229There was no evidence of any deterioration in the plaintiff’s shoulder condition at that time. She did seek medical treatment and her next attendance with her GP was in March 2023. I do not accept this failure to seek medical attendance was as a result of any ignorance of the system or related to the clearance given by Ms Madan in December 2020. The lack of medical attention sought is not consistent with the level of shoulder pain deposed to by the plaintiff and in my view indicated the plaintiff was coping with her condition during this time.
Pain
230The evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[112]
[112] Haden at paragraph [11]
231While the plaintiff has described her pain differently at times in her own evidence and to examiners on a number of occasions, essentially her main focus has been on her right shoulder pain which is located in the area of her bra strap as she described in court. At times, that pain goes to her neck and is of varying intensity.
232She has described the nature and frequency of her shoulder pain in varying terms. Complaints of constant pain have been rare, with Dr Asaid in April 2023 seemingly being the only examiner who received this history.
233The plaintiff’s affidavit evidence was of a sharp pain in her shoulder most of the time. When aggravated, the pain went down her right arm into her right hand – once or twice a month.
234Her current GP, Dr Jacob, noted complaints of “intermittent pain” on examination in March this year.
235In March 2023, the plaintiff told Dr Menz at rest and doing minimal work, she would rate her shoulder pain as one to 2 out of 10, and on a bad day, 7 to 8 out of 10. In May, she told Dr Barton she had some pain around the top of her right shoulder blade area associated with some limitation of movement. In July, she told Dr Weekes her shoulder pain was less severe than her neck pain and was on average, 4 out of 10, more intermittent and not there every day.
236It appears from these entries and the plaintiff’s own evidence that she does not experience constant pain as a result of her work injury requiring regular painkilling medication.[113]
[113] Stijepic v One Force Group Australia Pty Ltd (2009) VSCA 181 at paragraph [48]
Treatment
237When assessing the plaintiff’s pain and suffering, a relevant consideration is what the plaintiff does about the pain (example, medication, rest, seeking medical treatment).[114]
[114] Haden at paragraph [11]
238Treatment for the right shoulder has been conservative only.
239Attendances on her general practitioner have been very limited with no visits from December 2020 to March 2023 and a few thereafter.[115]
[115] T121, Dr Jacobs letter of 18 July 2023
240A steroid injection in May 2020 was of limited assistance.
241There was a referral to orthopaedic surgeon Mr Chandrasekaran in mid 2020. He then suggested ongoing physiotherapy and did not recommend a follow up unless there was an increase in pain, when an injection would be considered. No further review has been requested.
242The plaintiff had physiotherapy until the clearance for work in December 2020. Otherwise, she has done home exercises and applies Deep Heat.
243The plaintiff takes limited painkilling medication, only over the counter Nurofen and Panamax, each three to four times a week.
244I find it difficult to accept that the plaintiff did not seek further treatment after December 2020 because she did not think she was entitled to it following the clearance to return to work, although there would have been some difficulty attending for treatment during COVID-19. There has never been a termination of payment of medical and like expenses. Even if there had been, that would not have stopped the plaintiff attending a GP.
245It is also difficult to understand why having got a referral for further physiotherapy in March this year, the plaintiff has not taken it up – although it appears by her email that she had lost the referral.
Range of movement
246While the plaintiff described restricted shoulder movement, there have been a number of occasions when she has had a relatively good range of shoulder movement on examination.
247There was little restriction found by Mr Chandrasekaran in July/August 2020. Mr Asaid found a good range of shoulder movement in October 2022 and more movement in April this year. Dr Menz found a very good range of shoulder movement when he examined the plaintiff in July this year.
Nursing/work
248The plaintiff simply deposed that she was unable to complete further study because of her injury and went on to describe her current course.
249During the hearing, it became apparent this issue was somewhat complex and I gave the plaintiff the opportunity to provide any relevant documentation in this regard.
250The plaintiff initially said she was unable to continue her study because of her inability to do the physical component of the NCLEX course because of her shoulder pain. However, it became apparent later in cross examination that she had not actually started that course before her injury. After finishing the Diploma in 2019, she had in fact decided to take a break from study.
251The plaintiff ultimately did the 12 week preparation course from April to July 2021. Her evidence was that she was too sore to do the exam in November 2021. She ultimately did the exam in March and November 2022, failing both attempts.
252She has now taken a different direction and commenced the SEN course in May and intends to do a Bachelor of Nursing to be a registered nurse. As she acknowledged, nursing is all not physical and she plans to work in administration.[116]
[116]T85
253In terms of any claimed employment consequences, counsel for the defendant submitted there was at best a delay in doing the course and, in any event, the plaintiff had taken a break before the injury itself. There was no guarantee even without this injury she would have gained the qualification. The diploma was ground level and she needed further study. At the time of the injury, she had not commenced the journey of study or continued it.[117] There are many reasons why people can fail, not just an injury.[118] Save for a slight bit of shoulder bursitis, there was no guarantee she was going to get the qualification.[119]
[117]T119
[118]T120
[119]T120
254Further, there was no evidence of problems with studying in any medical reports or any corroborating evidence.[120]
[120]T120
255It was submitted the plaintiff realistically was now doing quite well, working weekends on penalty hours and is in a pretty good position.[121]
[121]T116
256Counsel for the plaintiff submitted the plaintiff is restricted in the use of her dominant right arm in a range of activities. She cannot do the heavy, “hard yakka job” she was doing with the employer, handling heavier patients at times.[122]
[122]T135
257Before the incident, the plaintiff intended to complete her nursing training. She had paid $10,000 to do the Diploma. She struggled to study after that and paid even more money to do more courses.[123] She had problems studying on the computer as her husband confirmed. [124]
[123]T137
[124]T136
258It was submitted the plaintiff is persistent and somewhat of a stoic. She is currently pursuing this training even though she thinks it is beyond her and she should not be criticised for that.[125]
[125]T138; Dwyer v Calco Timber Pty Ltd (No 2) (2008) VSCA 260 at paragraph [4] per Nettle JA
259Having considered all the evidence in relation to this issue, I am not satisfied that as a result of any soft tissue injury suffered in the incident the plaintiff has lost the opportunity to be a nurse.
260As counsel for the defendant submitted, at best there has been a delay in the plaintiff doing the course. As ultimately became apparent, the plaintiff was taking a break after her diploma and was not studying at the time of the incident and had yet to attempt the physical component of that course.
261In any event, the plaintiff was able to complete the preparation course in 2021 while working full time. She then failed the exam in March and November 2022.
262I am not satisfied the plaintiff failed the course because of any shoulder injury. There is no medical evidence corroborating her claimed difficulty with her studies.
263The plaintiff is now engaged in further study doing the SEN course and intends to then do a Bachelor of Nursing and work in that field in an administrative capacity.
Other consequences
264While the plaintiff claims to be restricted in her ability to do housework, as counsel for the defendant submitted, there was some inconsistency between the history to the vocational assessor and what the plaintiff had deposed to.[126] I do not accept with the plaintiff’s demonstrated ability to do her normal PCA duties during various periods, she would have significant problems at home with domestic duties or light gardening.
[126]T123
265The plaintiff is still able to travel overseas. There is no claimed interference with social activities and she still attends temple – an activity not mentioned in her affidavits.
266While she deposed to problems with sleeping, the vocational assessor reported the plaintiff told her sleep was normal. In any event, there has been no prescription of sleeping medication and the plaintiff’s evidence is that she simply avoids sleeping in her right side.
267Taking into account all the evidence, I am not satisfied the consequences of any incident related right shoulder impairment are serious.
268Accordingly, the application is dismissed.
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