Kelb v Department of Human Services
[2018] VCC 964
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-05338
| TINA LOUISE KELB | Plaintiff |
| v | |
| DEPARTMENT OF HUMAN SERVICES | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 May 2018 | |
DATE OF JUDGMENT: | 29 June 2018 | |
CASE MAY BE CITED AS: | Kelb v Department of Human Services | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 964 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury to plaintiff’s right shoulder – Complex Regional Pain Syndrome Type 1 – Chronic Pain Syndrome – Panic Disorder with agoraphobia – Adjustment Disorder with Mixed Anxiety and Depressed Mood – plaintiff required to disentangle the psychological factors from the physical injury to her right shoulder – plaintiff required to identify and prove to the requisite standard the consequences applicable to the injury to her right shoulder and or psychological or psychiatric condition
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries & Anor v Poljak [1992] 2 VR 129; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Church v Echuca Regional Health (2008) 20 VR 566; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Application for serious injury certificate for pain and suffering and loss of earning capacity granted in respect of physical injury to plaintiff’s right shoulder as a result of an accident at work on 8 July 2013.
Application for serious injury certificate for pain and suffering and loss of earning capacity granted in respect of psychological injury to plaintiff as a result of the accident which occurred to her on 8 July 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley with Mr O T Lesage | Shine Lawyers |
| For the Defendant | Mr P R Trigar | IDP Lawyers |
HIS HONOUR:
1 The plaintiff brings the application by way of Originating Motion dated 30 November 2016. The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by her in the course of her employment with the defendant, the Department of Human Services, on or about 8 July 2013.
2 The application made by the plaintiff in this proceeding relies on both the physical injury to the plaintiff’s right shoulder and the psychiatric injury resulting from the injury to her right shoulder.
3 The plaintiff has developed a Chronic Pain Syndrome in respect of her right shoulder and right arm. The plaintiff has also developed a secondary psychiatric injury in the form of a Panic Disorder with Agoraphobia and an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
4 The plaintiff seeks leave to bring proceedings for pain and suffering and loss of earning capacity damages in respect of both the physical injury and the psychiatric injury.
5 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§The Plaintiff’s Court Book (“PCB”) pages 1 to 10 inclusive, pages 11A to 11C inclusive, pages 27 to 122 inclusive, pages 132 to 146 inclusive (exhibit “A”)
§The Defendant’s Court Book (“DCB”) page 9 (exhibit “B”).
·The defendant tendered the following documents:
§DVD surveillance film of the plaintiff for 27 June 2017 (exhibit 1)
§The Defendant’s Court Book, pages 10, 39 to 100 inclusive, 118 to 130 inclusive, 231 to 269 inclusive and 278 to 302 inclusive (exhibit 2).
6 Mr Trigar, counsel on behalf of the defendant, identified the following issues in this proceeding:
(i)The plaintiff is required to disentangle the psychological and physical factors in relation to the plaintiff’s organic injury;
(ii)The plaintiff has to satisfy the Court that in respect of the psychiatric injury, that it is permanent;
(iii)The credibility of the plaintiff;
(iv)The plaintiff has a capacity for suitable employment and consequently, does not meet the statutory test for serious injury in respect of the loss of earning capacity.
The Statutory Scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Supra
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in 1978 and is now forty years of age. The plaintiff lives with her husband and four children. The plaintiff’s husband is employed full time as a Garbologist. The plaintiff’s four children are either studying or continuing their secondary education. The plaintiff’s youngest child is in primary school.
11 The plaintiff was educated to Year 12 at Northland Secondary College. Upon completing her Year 12 education, the plaintiff worked in retail-related employment and process work for a period of some thirteen years. In the course of her working life, the plaintiff gave birth to her elder three children.
12 On 16 March 2009, the plaintiff commenced work with the defendant, the Department of Human Services. Her role with the defendant was as a disability support worker.
13 In the course of her employment in March 2011, the plaintiff injured her right shoulder at work. The plaintiff had a couple of days off work, engaged in physiotherapy treatment and returned to work. A short time after, the plaintiff took maternity leave to have her younger son. After giving birth to her son, the plaintiff returned to work on full duties.[4]
[4]PCB 2
14 On 8 July 2013, the plaintiff injured her right shoulder at work. The plaintiff set out the circumstances of the injury to her right shoulder in the following terms:
“11.I injured my right shoulder on 8 July 2013 while I was working at 26 Banff Street, Reservoir, caring for the disabled patients there.
12.I was moving Connie Laterra, one of my patients, from the bathroom with lino flooring, to her chair in the lounge room with carpeted flooring, when her slippers refrained her from walking on the carpeted area. Consequently she fell on top of me.
13.I fell onto my right shoulder. Connie’s body weight was pinning me down. I screamed out to my co-workers who moved Connie. I felt heat going all around my shoulder and arm and severe pain.”[5]
[5]PCB 2
15 The ambulance was called in order to assist the plaintiff. The ambulance officers assessed the plaintiff and suggested that she needed to attend her general practitioner for treatment. The plaintiff was taken to see her general practitioner, Dr Stephen Liu, by her husband on that day.[6]
[6]PCB 2
16 The plaintiff is right handed. The plaintiff has not returned to employment since 8 July 2013.
Medical treatment
17 The plaintiff attended her general practitioner, Dr Liu. Initially he prescribed the plaintiff Voltaren, 50 milligrams. Dr Liu referred the plaintiff for an x-ray. The plaintiff underwent an x-ray examination of her right shoulder on 8 July 2013.[7] There was no fracture noted and the shoulder was normally enlocated.
[7]DCB 119
18 In the period of July to October 2013, the plaintiff had numerous attendance upon Dr Liu for her pain symptoms. She was also receiving treatment from the physiotherapist, Stephen Harper.
19 On 2 October 2013, the plaintiff attended upon Mr Tim Hwang, orthopaedic surgeon. Mr Hwang referred the plaintiff for an MRI examination of her thoracic spine and right shoulder. On 22 October 2013, the plaintiff underwent an MRI examination of her right shoulder. The report of the MRI scan was as follows:
“Irregular, linear high signal demonstrated in the biceps labral complex extending into the postero-superior labrum in keeping with a SLAP 2 tear.
…
Biceps labral complex changes suspicious for a SLAP 2 tear. Rotator cuff intact.”[8]
[8]DCB 120
20 The plaintiff was then referred by her general practitioner to Mr Anthony Bonomo, orthopaedic surgeon. On 14 November 2013, the plaintiff attended Mr Bonomo and she was diagnosed with rotator cuff syndrome of the right shoulder.[9] The plaintiff’s initial treatment by Mr Bonomo was steroid injections into the right shoulder. The plaintiff had some temporary relief from symptoms but her pain symptoms continued.
[9]PCB 27
21 On 1 May 2014, the plaintiff underwent surgery at the hands of Mr Anthony Bonomo.
22 Mr Bonomo’s operation notes record as follows:
“Arthroscopy confirmed normal glenohumeral articular surfaces, normal biceps tendon. Superior labrum was mobile and frayed but there was no instability of the attachment of the biceps tendon.
Via the anterior portal, the labrum was debrided and stabilised using arthroscopic shaver and the VAPR.
Inspection of the subacromial space confirmed thickened bursal tissue. This was resected with an arthroscopic shaver and a VAPR. Coracoacromial ligament released and anteroinferior acromioplasty performed in view of the patient’s impingement type symptoms.”[10]
[10]DCB 130
23 In the period of 2014 and 2015, the plaintiff continued with physiotherapy and acupuncture treatment.
24 In August 2015, the plaintiff was seen by two doctors on behalf of the defendant.
25 Dr Michael Duke, psychiatrist, examined the plaintiff and diagnosed the plaintiff as suffering a secondary Adjustment Disorder with Mixed Anxiety and Depressed Mood.[11]
[11]DCB 72
26 On the same day, the plaintiff was also examined by Dr Graeme Doig, general surgeon. This examination was performed for the defendant’s medico-legal purposes. Dr Doig noted at that time that the plaintiff was suffering from impingement and a labral tear of the dominant right shoulder. He also noted that there appeared to be a neuropathic component to her pain with a positive provocation test on examination. In his view, the plaintiff’s condition was in keeping with a traction injury to her brachial plexus which would be consistent with the mechanism of injury.[12]
[12]DCB 42
27 The plaintiff’s ongoing treatment has predominantly been managed by Dr Liu, her general practitioner. He has prescribed medications for her psychiatric and physical pain complaints.
28 On 9 August 2016, the plaintiff suffered from a migrainous stroke. She attended at the Northern Hospital.[13] The plaintiff has had an excellent prognosis from the migrainous stroke and this has been of no consequence to her wellbeing since that time.
[13]PCB 9
29 In October 2017, the plaintiff attended a pain management program at the Epworth Hospital. She was an outpatient in this program for a period of approximately three months. The supervising doctor of the pain management program was Dr Daya Jayaratne.
30 Dr Jayaratne referred the plaintiff to Dr Zamil Karim, a pain physician and anaesthetist, for further treatment. There was no report from Dr Karim. The plaintiff gave evidence in the course of the hearing about her treatment by Dr Karim. The plaintiff stated that Dr Karim injected ten needles of local anaesthetic into her shoulder in February of 2018.[14]
[14]Transcript (“T”) 47
31 The plaintiff’s ongoing treatment is by way of consultation with Dr Liu and the medications of Tramadol, Nurofen, Endep and Zoloft.[15]
[15]T61-62
The credit of the Plaintiff
32 The defendant sought to challenge the plaintiff’s credibility in the course of her cross-examination. In her history to the medical practitioners, the plaintiff has been consistent to both those that examined her on behalf of the defendant and her own treating or medico-legal practitioners.
33 I have had the advantage of seeing the plaintiff give evidence and I find that she gave her evidence in a straightforward and honest manner. The plaintiff was clear in her answers and made the necessary concessions when required.
34 None of the reporting doctors have suggested that the plaintiff was making up her symptoms or exaggerating her symptoms. They either accepted that the plaintiff’s symptoms were physically based and gave their opinions accordingly, or they accepted that the plaintiff was suffering from a Chronic Pain Syndrome which was the explanation for her complaints of pain to her right shoulder.
35 In the hearing, the plaintiff was shown some DVD surveillance film. The date of the film was 27 June 2017. The film ran for approximately 12 minutes.
36 The defendant conceded that there were eleven days in 2016 and 2017 that the plaintiff was surveilled. The final day was 27 June 2017 and was the only day that film was shown of her.
37 The defendant also conceded there were a further seven days of surveillance of the plaintiff and no further film was shown of her on those occasions. I note for completeness that the plaintiff was cross-examined about attending the football on the weekend prior to the hearing date. The plaintiff, in her answers, very readily stated that she had been to her daughter’s football and that the only time she got out of the car was to have a cigarette. No film of that surveillance between 2.30pm and 4.30pm on 13 May 2018 was shown in Court.
38 The film that was shown, which was taken on 27 June 2017, displayed the plaintiff taking her young son to school. I watched the film during the course of the hearing and I have subsequently viewed the film very carefully. The plaintiff was challenged about being able to use her right arm in a normal manner when either lifting her son or covering her son whilst waiting for the bus to arrive. The plaintiff accessed her mobile phone which had been in the rear right-hand side pocket of her jeans. A close analysis of the plaintiff’s movements with her right arm and use of the phone and lifting her son showed that the plaintiff in fact favoured her right arm. In lifting her son up onto the retaining wall, the plaintiff lifted him mainly with her left arm, and her right arm was only in a balancing type role. In the time when the plaintiff was using her mobile phone, she cradled it and used it in her left hand. The only time the right hand was involved was using the keypad on the phone.
39 I conclude that the DVD surveillance of the plaintiff that was shown in Court confirms the plaintiff’s version of her favouring the right arm and doing as little as possible to have contact or use with her right shoulder.
40 The plaintiff readily remembered that day of the surveillance film because she was taking her son to school as he had been bullied. Her actions of cuddling her son were to reassure him and cajole him into going to school. I accept that the plaintiff was favouring her arm and right shoulder, albeit in a subtle way, but nevertheless this protective type behaviour clearly showed that the plaintiff is consistent in her complaints to the medical profession about her right shoulder symptoms.
41 Unusually, I find that the surveillance film confirmed the credit of the plaintiff. I am mindful that the Court of Appeal in Church v Echuca Regional Health,[16] has given courts of first instance some guidance in respect of the use of surveillance film when determining the credit of a witness. I could see nothing on the surveillance film which attacked the credibility of the plaintiff in respect of her description of symptoms and or disability to her right shoulder and right arm.
[16](2008) 20 VR 566
42 I find that the plaintiff was a clear, honest and straightforward witness.
The medical opinions
The Plaintiff’s medical opinions
Dr Steven Qingwu Liu, General Practitioner
43 Dr Liu has been the plaintiff’s general practitioner for all of the relevant period in this case. Dr Liu has prepared three reports for the purpose of this application. The first report is undated. The second report is dated 31 March 2017 and the final report is dated 13 April 2018.
44 In his final report, Dr Liu confirms that the plaintiff’s medication currently prescribed is Tramadol, 150 milligrams; Zoloft, 100 milligrams, and Nurofen. The plaintiff has ongoing psychotherapy visits.[17]
[17]PCB 37
45 In his opinion, Dr Liu stated as follows:
“It is my opinion that Mrs Kelb has a non-specific pain syndrome, and she also developed neuropathic type pain. It was recommended the anti-neuropathic analgesics, pain management programme and also acupuncture treatment be beneficial.
…
It is reasonable to be involved in social and recreational employment activities.
General prognosis – her prognosis for recovery was poor.”
46 Dr Liu notes that the stroke suffered by the plaintiff in August of 2016 has resolved without any complications.[18] However, he was of the opinion the plaintiff’s prognosis for recovery was poor, relating to her right shoulder injury and psychiatric condition.
[18]PCB 37
47 It is clear from Dr Liu’s reports that the plaintiff is suffering from a psychiatric-based pain symptom or pain syndrome and also suffering from a neuropathic type pain, being the organic cause for pain.
Mr Tim Hwang, Occupational Physician
48 Dr Hwang saw the plaintiff after her injury on 8 July 2013, but before she was seen by Mr Bonomo.
49 Dr Hwang prescribed amitriptyline, 10 milligram, and ordered an MRI scan of the plaintiff’s right shoulder.[19] The plaintiff did not return to see Mr Hwang. When cross-examined about this matter the plaintiff stated that she did not return to Mr Huang because he had treated her like an “animal”.[20]
[19]PCB 145
[20]T42
Mr Anthony Bonomo, Orthopaedic Surgeon
50 Mr Bonomo prepared a report dated 4 November 2015. He originally saw the plaintiff on 14 November 2013 for management of her right shoulder problem. After some initial treatment including a steroid injection to the right shoulder, the plaintiff proceeded to surgery on 1 May 2014. The surgery was a right shoulder arthroscopy and subacromial decompression. I have previously detailed the full particulars of the operation in these Reasons.
51 Mr Bonomo diagnosed the plaintiff as suffering from rotator cuff syndrome of the right shoulder.[21]
[21]PCB 27
52 The plaintiff saw Mr Bonomo on one occasion after her operation and has not seen him since.
Mr Russell Miller, Orthopaedic Surgeon
53 Mr Miller saw the plaintiff for examination and medico-legal reporting purposes. He prepared a report dated 5 June 2016. Mr Miller described the plaintiff as co-operative and was a clear and straightforward historian.[22]
[22]PCB 43
54 Mr Miller noted the history of the surgery to the plaintiff’s right shoulder and then stated as follows:
“… Unfortunately she has had a poor response to that surgical intervention and also has ongoing symptoms in the right shoulder which are likely to reflect ongoing problems with rotator cuff dysfunction, capsulitis and probably the effects of a superimposed Chronic Pain Syndrome. The prognosis for the right shoulder is only fair.
…
… I note that neurological review is recommended. It is my view that the more diffuse symptoms in the right upper extremity involving her elbow, forearm and hand, with numbness, tingling and weakness reflect manifestations of a Chronic Pain Syndrome which requires separate review by a psychiatrist.”[23]
[23]PCB 45
55 Mr Miller noted:
“She has suffered an adverse mental state reaction with problems of anxiety and depression and very likely the development of a Chronic Pain Syndrome which will complicate the assessment and management of her condition. This requires separate review by a psychiatrist.”[24]
[24]PCB 46
56 Mr Miller also stated there were diffuse right upper extremity symptoms requiring separate review by a neurologist.[25] This finding by Mr Miller clearly sets out that the plaintiff’s complaints of pain have both a psychiatric and a physical basis.
[25]PCB 46
57 Mr Miller’s opinion was that the plaintiff could not return to her pre-injury occupation. He stated that the adverse mental state reaction will further complicate any return to work for the plaintiff.[26]
[26]PCB 46
Dr Daya Jayaratne, Consultant Physician
58 Dr Jayaratne was the physician and pain management treater at the Epworth Rehabilitation consulting rooms. The plaintiff attended a pain management course at the Epworth Hospital as an outpatient between October 2017 and February 2018.
59 Dr Jayaratne prepared a report dated 1 March 2018.
60 Dr Jayaratne referred the plaintiff to Dr Zamil Karim, a pain physician and anaesthetist, for further consideration and treatment after the pain management course had been completed.
61 Dr Jayaratne diagnosed the plaintiff as suffering from a Chronic Pain Syndrome affecting the right shoulder region.[27] He noted that the plaintiff’s injuries had stabilised and that she had not greatly benefited from the pain management program. In Dr Jayaratne’s opinion, the plaintiff could not return to her pre-injury duties. Dr Jayaratne stated that at the level of function or difficulty, it is his opinion that the plaintiff would not be able to carry out the duties assigned to her as described in the vocational assessment reports dated 13 August 2016 and 19 January 2016.
[27]PCB 39
62 It was Dr Jayaratne’s opinion that the plaintiff would have very minimal or no current work capacity, as the pain is so intense in her right upper limb, it is non-functional. It was his opinion that the symptoms suffered by the plaintiff are for the foreseeable future.[28]
[28]PCB 40
Dr Clive Kenna, Consultant and Musculoskeletal Pain Management
63 The plaintiff was examined on behalf of the insurers for the defendant. He prepared a report dated 16 April 2018. Dr Kenna noted that the plaintiff continues to have pain which he described as chronic pain pertaining to the right shoulder with marked sensitisation.[29] He described the plaintiff as suffering from a compensable frozen right shoulder.
[29]DCB 134
64 Dr Kenna reviewed the job descriptions enclosed in the 130-week vocational assessment and stated as follows:
“She may be suitable in part to do part-time office assistant, ie neighbourhood house or community centre or indeed a rostering clerk or scheduler in a community/disability service organisation because these are the type of organisations she has been involved with over the years.
…
Hence there are two potential forms of employment that she may be able to perform, both would clearly have to be very part time with clear supervisory capacity required.”[30]
[30]DCB 134
65 Dr Kenna’s opinion was that the plaintiff was unable to engage in employment of a call centre operator of medical receptionist or an information attendant at a shopping centre.
66 Dr Kenna’s concluding remarks were as follows:
“… At best she has a very limited capacity for employment returning to the work force and that being the case I of the view whilst those job duties may theoretically be within her capacity they would only be on a part-time basis. A number of those suggestions I believe are unsuitable.”[31]
[31]DCB 137
67 It is clear from Dr Kenna’s opinion that he thought the plaintiff may have been able to theoretically engage in part-time work in the future.
Dr Grant Scott, Neurologist
68 Dr Scott saw the plaintiff in 2016. He prepared a report to Dr Liu dated 4 May 2016. In that report, he stated as follows:
“At this stage, the diagnosis remains undefined. She might have low grade thoracic outlet syndrome or very mild carpal tunnel syndrome and I’ve organised follow up tests. Complex regional pain syndrome remains in the differential and she might need input from the Chronic pain service if no diagnosis emerges.”[32]
[32]PCB 141
Dr Peter Blombery, Consultant Physician
69 Dr Blombery has examined the plaintiff and reported for medico-legal purposes. He prepared three reports dated 15 March 2017, 2 November 2017 and 17 April 2018.
70 In his first report, Dr Blombery noted minor changes in temperature and colour in the right arm but he did not feel that this was sufficient symptomology to give the plaintiff a diagnosis of Complex Regional Pain Syndrome.[33]
[33]PCB 113
71 In his second report, Dr Blombery confirmed his opinion that the plaintiff did not suffer from a major component of Complex Regional Pain Syndrome Type 1. He stated:
“It is my opinion that the ongoing neuropathic pain in her right arm with features of pain pathway sensitisation is a consequence of the injury that occurred to her right shoulder in the course of her employment, as outlined above.”[34]
[34]PCB 116
72 In his opinion, the plaintiff’s prognosis was poor and her condition was likely to continue indefinitely.
73 In his final report dated 17 April 2018, Dr Blombery noted that the plaintiff does have some autonomic disturbance in the right arm and it was his opinion that there is a component of Complex Regional Pain Syndrome Type 1 present. Dr Blombery then noted that the plaintiff had some exaggerated pain behaviour, suggesting that there are psychological factors tending to enhance her experience of pain but nevertheless her pain has an organic basis. It was his opinion that the pain behaviour is a consequence of her own reaction to the pain.[35]
[35]PCB 120
74 Dr Blombery concluded as follows:
“A non-specific pain syndrome with a component of complex regional pain syndrome type 1 complicating a tear of the labrum of the right shoulder requiring surgical intervention. The injury occurred as a consequence of the heavy work that she was doing in the course of her employment. Her prognosis for recovery is poor.
…
It is my opinion that she has no capacity for her pre-injury employment or for suitable work.”[36]
[36]PCB 121
Dr Joseph Slesenger, Specialist Occupational Physician
75 Dr Slesenger prepared three reports dated 13 March 2017, 17 October 2017 and 3 May 2018 in respect of this application.
76 In his first report, Dr Slesenger recommended that the plaintiff be referred to a pain specialist to address her current pain management and use of medication.
77 In his report dated 17 October 2017, Dr Slesenger diagnosed the plaintiff as suffering from a rotator cuff tear, a SLAP tear and adhesive capsulitis.[37] He noted that the plaintiff was seeing the psychologist, Ms Robyn Sketchley. He also noted the plaintiff was taking the following medication:
[37]PCB 94
· Tramadol 150 milligram
· Zoloft 50 milligram
· Endep 50 milligram
· Nurofen, six tablet a day.[38]
[38]PCB 94
78 In Dr Slesenger’s opinion, the plaintiff was not suited to doing work as a disability services officer, pathology collector or medical practice administrator/receptionist.[39]
[39]PCB 95
79 Dr Slesenger was hopeful that the plaintiff would benefit from attendance at the pain management program.
80 Dr Slesenger’s next report was dated 3 May 2018. This report was prepared after the plaintiff had been to the pain management program at Epworth Hospital. He noted that the plaintiff had attended Dr Daya Jayaratne and had undergone ten injections into her right shoulder. He reports that the plaintiff’s treatment was unsuccessful in relieving her symptoms.[40] Dr Slesenger stated as follows:
“… I am of the opinion there are two aspects to Mrs Kelb’s presentation:
● An organic injury to the right shoulder for which she has undergone appropriate treatment.
● There is also evidence of a psychogenic element to her presentation.
I am of the opinion that the organic component is unlikely to resolve further with further interventional treatment. There is an opportunity for the psychogenic element to be addressed; however, this is outside my area of expertise.”[41]
[40]PCB 102
[41]PCB 106
81 In respect of the plaintiff’s ability to return to work, Dr Slesenger stated as follows:
“I advise against Ms Kelb returning to work performing pre-injury duties as I am of the opinion that she is unlikely to be able to complete these activities given her residual impairment and disability. My opinion is based upon the organic component alone.
…
As noted above, I am of the opinion that Ms Kelb is likely to have a residual right shoulder impairment that is at least in part based on an organic disability (probable chronic adhesive capsulitis). I am of the opinion that she has a residual organic component to her presentation that is unlikely to respond to further intervention at this late stage. I am, therefore, of the opinion that her inability to return to pre-injury duties is likely to continue into the foreseeable future. Nevertheless, I remain of the opinion that she has capacity for suitable alternative duties.”[42]
[42]PCB 107
82 Dr Slesenger’s opinion was that, based on the organic component of the plaintiff’s symptoms alone, she could attend employment with restrictions in respect to the occupations of a disability service officer, a pathology collector and a medical practice administrator/receptionist. He also was of the opinion that, on the basis of the residual organic components to the plaintiff’s symptoms, that she could perform the role of an information attendant, a call centre operator, an office assistant, rostering clerk/ scheduler or a medical receptionist.[43]
[43]PCB 108
83 Dr Slesenger then went on to state that, in respect of all of those occupations, he was unable to say from a psychiatric perspective whether the plaintiff could engage in these employments.[44]
[44]PCB 109
Dr Albert Kaplan Psychiatrist
84 Dr Kaplan has examined the plaintiff for medico-legal purposes. He has prepared four reports dated 28 February 2017, 8 September 2017, 6 April 2018 and 15 May 2018.
85 In his report dated 16 April 2018, Dr Kaplan diagnoses the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also diagnoses the plaintiff as suffering from a Panic Disorder with Agoraphobia. He notes that both of these psychiatric conditions have stabilised. Dr Kaplan then addressed the issue of the plaintiff’s ability to return to work. He stated as follows:
“… As indicated in my previous report, her psychiatric condition and in particular her low frustration tolerance, difficulties with memory and concentration, damaged self-esteem, and agoraphobic symptoms are likely to have a significant impact upon her capacity to perform these duties or any other duties including the suitable work suggested in the 130-week vocational assessment reports dated 13 August 2016 and 19 January 2016, although her capacity to work will in large part also be determined by her physical condition. She probably has no capacity to perform work which would expose her to groups or crowds because of her panic attacks and agoraphobia, and she consequently would probably not be capable of undertaking employment as a Disability Services Officer/Instructor or in Medical Practice Administration/Receptionist work. For the same reason, she would probably not be capable of working as an Information Attendant (shopping centre) or as a ‘Call Centre Operator Office Assistant (Neighbourhood House or community centre)[‘] or a Rostering Clerk/Scheduler (community/disability services organisation) or Medical Receptionist if these employment options involved exposure to groups or crowds.”[45]
[45]PCB 70
86 In his final report, which came in the form of an email dated 15 May 2018, Dr Kaplan stated as follows:
“I am writing in response to your email transmission dated 14 May 2018.
…
The major psychiatric cause of Ms Kelb’s incapacity for work is her Panic Disorder with Agoraphobia and, as indicated in my earlier report, the prognosis of this condition is variable however it often runs a chronic fluctuating course and can be aggravated by stress. Again, as indicated in my earlier report, given her relative youth, I am unable to predict whether this condition and therefore her incapacity for work is likely to be permanent. However her Panic Disorder with Agoraphobia is unlikely to improve as long as she is subjected to ongoing stress by her physical injury and the consequence of this injury.”[46]
[46]PCB 72A
87 It is clear from Dr Kaplan’s opinions that, based on the plaintiff’s psychiatric injuries alone, the plaintiff will be unable to engage in employment. Given the interaction between the physical complaints of pain and the psychiatric reactions to the pain and impact on the plaintiff’s life, the psychiatric condition will last into the foreseeable future.
The Defendant’s medical opinions
Mr John Owen, Orthopaedic Surgeon
88 Mr Owen prepared a report dated 26 May 2011. This report relates to the injury to the plaintiff’s right shoulder which occurred on 3 March 2011. He made the following observations of the plaintiff at that time:
“My examination of this young woman showed quite exquisite tenderness all over the shoulder, loss of sensation in a glove-and-stocking distribution and global weakness in the shoulder i.e. this girl has quite a few psychological problems here.
…
I suspect this girl has a pain centralisation problem and needs really to be seen by a chronic pain specialist rather than a surgeon. I have asked Terence Lim to have a look at her.”[47]
[47]DCB 10
89 Mr Owen was not asked to report on the plaintiff after the incident at her work on 8 July 2013 which brings the plaintiff to Court in this case.
Dr Graeme Doig, General Orthopaedic Surgeon
90 Dr Doig prepared four reports in respect of this proceeding, dated 11 August 2015, 8 September 2015, 18 February 2016 and 24 March 2017.
91 In his report dated 11 August 2015, Dr Doig noted as follows:
“It would appear that the worker was suffering from impingement and a labral tear to the dominant right shoulder. There appears to be a neuropathic component to her pain with positive provocation tests on examination.
This may be in keeping with a traction injury to her brachial plexus which would be consistent with the mechanism of injury.
…
She is unable to return to pre-injury duties and hours.
It is my opinion at present that she does not have any current work capacity as she has got significant ongoing pain in a dominant right arm that has not been investigated appropriately.”[48]
[48]DCB 42
92 In the opinion of Dr Doig, the plaintiff had no capacity for work in August 2015.
93 In his report dated 24 March 2017, Dr Doig diagnosed the plaintiff as suffering from a Chronic Pain Syndrome with central sensitisation at the dominant right shoulder.[49]
[49]DCB 52
94 In relation to the plaintiff’s prognosis, Dr Doig stated as follows:
“The prognosis must be guarded. Ms Kelb will have an on-going less than 2 kg lifting/pushing/pulling restriction at or below waist height with the dominant right arm with limited use of the right arm overhead. She will need breaks from driving. She would benefit from being reviewed by a pain specialist and undergoing a pain rehabilitation program to self-manage her condition into the future.”[50]
[50]DCB 53
95 Dr Doig ruled out any issue in relation to the aggravation of a pre-existing right shoulder condition. He stated the plaintiff may have a capacity for suitable employment either as a pathology collector or medical practice administrator/receptionist. He then noted:
“It is my opinion that the worker should be able to perform at least some of the duties of the two employment options stated, as long as the above restrictions are adhered to. Pathology collection may be problematic in that she is unable to drive for long distances.”[51]
[51]DCB 53
Associate Professor Anthony Buzzard, General Surgeon
96 Professor Buzzard prepared two reports dated 2 February 2016 and 24 February 2016. These reports prepared by Professor Buzzard were for a whole-person impairment assessment. Neither of these reports are of much assistance to me in an assessment of whether or not the plaintiff has suffered a serious injury.
Dr Steven Stern, Psychiatrist
97 Dr Stern prepared a report dated 2 February 2016. His report was for the purposes of medico-legal reporting.
98 Dr Stern’s opinion was as follows:
“As a result of her work injury she has now developed a chronic adjustment disorder with mixed anxiety and depressed mood. She gave no pre-existing or unrelated psychiatric history. She has stopped psychological treatment. She takes antidepressant medication (Zoloft 100mg per day). Her psychiatric state has now stabilised.”[52]
[52]DCB 96
99 Dr Stern stated that the psychiatric state was related to the plaintiff’s work injury to her right shoulder on 8 July 2013. He stated that her psychiatric state had stabilised.
Dr Michael Duke, Psychiatrist
100 Dr Duke examined the plaintiff and prepared four reports in respect of this matter for medico-legal reporting. The reports were dated 11 August 2015, 15 September 2015, 10 August 2017 and 8 May 2018.
101 In his report dated 10 August 2017, Dr Duke diagnosed the plaintiff as follows:
“… From a narrow psychiatric point of view, she continues to suffer from a secondary adjustment disorder with mixed anxiety and depressed mood, DSM-IV, Category 309.28. For this she is attending psychologist, Robyn Sketchley, with some benefit and taking Zoloft 50 mg a day and Endep 50 mg a day. This seems appropriate.”[53]
[53]DCB 85
102 In August 2017, Dr Duke stated that, from a purely psychiatric perspective, the plaintiff had a work capacity but he understood there were difficulties with completing the Certificate IV in phlebotomy because of the physical problems about which there was other appropriate expert opinion.
103 In his final report dated 8 May 2018, Dr Duke noted that the plaintiff did not complete the Certificate IV in phlebotomy, and stated that was because of her increased anxiety and depression.[54]
[54]DCB 280
104 Dr Duke confirmed his opinion and diagnosis as follows:
“… From a narrow psychiatric perspective, Ms Kelb continues to suffer from a secondary adjustment disorder with mixed anxiety and depressed mood, DSM-5 Category 309.28, manifestations of which are aggravation of pain, poor sleep with ruminations, gross anxiety, agoraphobia, lowered mood, poor memory. … .”[55]
[55]DCB 282
105 Dr Duke confirms that it was a secondary psychiatric condition. He stated, in relation to the plaintiff’s capacity to work, as follows:
“At the present time, Ms Kelb has no capacity for suitable employment based solely on the compensable psychiatric condition.”[56]
[56]DCB 283
106 Dr Duke however did express an opinion that he was not satisfied the psychiatric condition was to continue indefinitely. He stated that the current psychiatric treatment required a revision of the medications of Tramadol, Zoloft and Endep. He also noted that a resolution of the Court case may also impact on the time for reviewing the plaintiff’s condition. His only recommendation for the plaintiff was that a change of medications to Valdoxan or Avanza would assist with her sleep and mood condition without such interference with the Tramadol.[57]
[57]DCB 284
Consequences of the right shoulder injury to the Plaintiff
107 The plaintiff set out the consequences of the right shoulder injury to herself in her affidavits dated 21 July 2016 and 9 May 2018. The plaintiff has also given evidence in relation to some aspects of the consequences of the right shoulder injury to her life.
108 The plaintiff also relies upon the affidavit of her husband, Damien Burridge, dated 14 May 2018. Mr Burridge was not cross-examined by the defendant.
109 The plaintiff, in her second affidavit dated 9 May 2018, stated that she remains in constant pain. She referred to the electric shocks of pain that would occur on average two to three times a day.
110 The plaintiff was cross-examined about her evidence in relation to electric shocks in her right arm. Her evidence was as follows:
Q:“So, has that continued, has that been the position since?---
A:That still continues, yes.
Q:Electric shocks?---
A:Electric shocks, numbness, yes.
Q:And can you explain where your symptoms are now? Perhaps I’ll go through this. You say in this first affidavit your pain varies, ‘sometimes my right arm and shoulder are in extreme pain, even with the pain relief’. That’s the Tramadol, Zoloft and Nurofen?---
A:Zoloft is an antidepressant, it’s not a pain management.
Q:Yes. And sometimes you get numbness from the shoulder, down the arm, weakness in your right arm?---
A:Correct.”[58]
[58]T50, L14-24
…
Q:“And in your affidavit of 8 May, you say that - you talk about being in constant pain?---
A:I’m in pain every day, yes.
Q:Constant pain?---
A:Yes.
Q: And the electric shocks occur more frequently?---
A: Correct.”[59]
[59]T51, L29 – T52, L1
111 I accept that the plaintiff is in considerable pain and has the experience of pain on a constant basis. I find, and accept, that the plaintiff’s experience of pain is a very considerable consequence for her and the constant nature of it necessitates the ingestion of medications to ameliorate that symptom.
Medication
112 The plaintiff, in her affidavit, states that she takes a lot of medication. She takes Tramadol and Nurofen every day. She also takes Endep for her migraines which are unrelated to her right shoulder injury. She takes Zoloft, 50 milligram, for anxiety and depression.[60]
[60]PCB 7
113 Dr Liu confirms that the plaintiff is currently taking the medications of Tramadol, 150 milligram, Zoloft, 100 milligram and Nurofen.[61]
[61]PCB 37
114 In the course of the hearing, the plaintiff was cross-examined about her medications:
Q:“Have you ever discussed with Dr Lu, or at least recently - perhaps I should ask you this - how does the medication you are taking affect you? Tell us - you better just make sure I’ve got this right - you’re on Endep, Zoloft, tramadol and Nurofen?‑‑‑
A:Endep is for my migraines. That was prescribed to me by the Northern Hospital for my stroke that I had.
Q:Yes?‑‑‑
A:So I’m to take them when I get a migraine.”
HIS HONOUR:
Q:“And do you only take them when you have got a migraine?‑‑‑
A:Correct, yes.
Q:Yes, okay?‑‑‑
Q:With the tramadol, on - with that I take it over night-time and I take Nurofen during the day, as I don’t know if anyone is aware but tramadol is a very ‑ ‑ ‑ .”
MR TRIGAR:
Q:“We don’t want to ‑ ‑ ‑?‑‑‑
A:Had to use it ‑ ‑ ‑
Q:We know what a - we just want to know how it affects you?”
HIS HONOUR:
Q:“You take it at night?---
A:I take it at night, yes.
Q:And how does it affect you when you do that?---
A:I’m spaced out.
Q:Okay?---
A:Numb. Yes.”
MR TRIGAR:
Q:“And Zoloft?---
A:I take that every day.
Q:Just for the migraines, you’ve suffered from migraines for many, many years?---
A:Yes.
Q:So had you been on - apart from sort of painkillers, if you like, the ordinary over-the-counter stuff?---
A:M’mm.
Q:Had you been on anything for the migraines prior to - - -?---
A:I think, if I remember rightly, in 2007 or ‘08 I was prescribed Mersyndol Forte.
Q:Right.”
HIS HONOUR:
Q:“And that was for your migraines?---
A:Correct, yes.
Q:And did you continue to take that for a while?---
A:Yes, I did.
Q:Yes.”[62]
[62]T61, L28 – T62, L26
115 I accept that it is necessary for the plaintiff to take Nurofen and Tramadol in an attempt to deal with the physical pain symptoms. I also accept that the plaintiff is appropriately prescribed Zoloft to deal with her psychiatric condition.
116 I find the need for the plaintiff to take the two different sets of medication to ameliorate both her physical pain and her psychiatric condition to be a very significant consequence for her.
Sleep
117 The plaintiff states in her affidavit that she struggles with her sleep. She finds that it is uncomfortable with pressure on her right shoulder and when she wakes up the pain causes her mind to race.[63]
[63]PCB 7
118 In the course of her evidence, the plaintiff was cross-examined about her issues with sleep. The evidence was as follows:
Q:“Yes. And when you talk about sleep, you talk about two things. You talk about the pain, then you talk about your pain causing your mind to race?---
A:Yes.
Q:So, - and I’m just picking up there from what Dr - what you told Dr Kaplan. As I understood it you’re kept awake by your thoughts and your worrying about your loss of activities and the fact you regard yourself as a - well, apparently, I think, a burden on your family and you can’t do the things you want to do, and go out, and do what you used to do?---
A:Correct.
Q:So, you say - correct me if I’m wrong, Ms Kelb, please, would you say that the pain sometimes wakes you up, but often you’re just there thinking about things anyway?---
A:You’ve got it wrong in that sense. It’s not what wakes me up, I can’t go to sleep. Meaning it’s not waking me up, I can’t physically get myself to sleep. If it’s not the pain, it’s my mind playing tricks basically. Thinking about my family, thinking about what I’ve lost, basically, with my life. Yes.”[64]
[64]T52, L14 – T53, L1
119 It is clear from this cross-examination and the evidence given by the plaintiff that the interruption of the plaintiff’s sleep is caused by two factors: The first factor is physical pain. The second factor is the psychiatric condition that she has been diagnosed with and related to her right shoulder injury.
120 I find that the plaintiff being unable to obtain a proper night’s rest is a very significant consequence for her.
Mobility
121 The plaintiff stated in her affidavit that she now has reduced arm movement. A number of the medical practitioners noted what they referred to as either guarded movement of the arm or restricted movement of her right arm.
122 The plaintiff was cross-examined about this in the course of the hearing. The evidence was as follows:
Q:“All right so what prevents you from doing these jobs is not the state of your - the physical state of your arm, it’s the fact you can’t be around people?‑‑‑
A:Well, with these jobs, 90 per cent of them, you have to multitask. That automatically leaves me out. I can’t multitask with one arm. If I am in a doctor’s surgery and there is five patients coming at you and you have to do a computer thing or you have to answer a telephone, I can’t do multitasking with only one arm.
Q:You say you have reduced arm movement. How much movement do you have in the arm?‑‑‑
A:I can’t raise it above my head and I can’t put it around my back, but I can - how can I explain it - I can put it in front of me, but on a bended motion, so instead of straight out it’s like a bent area. When I bend over, as my physio has said - to do a pendulum swing to loosen it up, a pendulum - would you like me to demonstrate what the pendulum is or ‑ ‑ ‑ .”
HIS HONOUR:
Q:“With your left arm?‑‑‑
A:With my left arm, correct.
Q:Yes, you can do that?‑‑‑
A:Yeah. Just - okay, so you bend over, bending - just let the gravity take hold.”
MR TRIGAR:
Q:“Just let it hang ‑ ‑ ‑?‑‑‑
A:Just let it hang, and you just let the gravity take hold, and that’s one of the exercises the physiotherapist ‑ ‑ ‑
Q:So you do that with your right arm?‑‑‑
A:To loosen it up when you’re numb.
Q:Yes, and how often do you do that?‑‑‑
A:I do it every morning.
Q:Just that? How long?‑‑‑
A:Five minutes, not even - three or four minutes.
Q:And other exercises?‑‑‑
A:Pain management program told me to do treadmill.”[65]
[65]T60, L2-31
123 I accept the plaintiff’s evidence about the two-fold nature of her lack of mobility and sensitivity to touch in respect of her right shoulder injury. This physical restriction is a very considerable consequence for her.
124 The defendant submitted that the plaintiff had failed to disentangle the consequences suffered by her, taking into account her psychological or psychiatric condition. I do not accept that submission. In the case of Meadows v Lichmore Pty Ltd,[66] the Court of Appeal set out what it described as a two-step process for determining whether or not there was a need to disentangle the consequences. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied upon by the plaintiff. In this case, the medical opinions accept that there is an organic basis for the consequences relating to the plaintiff’s sleep, pain and medication and lack of mobility. I accept that medical evidence as being a proper assessment of the plaintiff. It is therefore unnecessary for the Court to proceed to separate the physical contribution to the pain and suffering from the psychological in order to be satisfied that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
[66][2013] VSCA 201
125 I find that the physical basis for the consequences set out by the plaintiff in her evidence and affidavits are more than significant or marked and at least very considerable when compared with a range of possible impairments relating to her right shoulder injury.
126 Further, I find that the psychiatric and psychological consequences arising from the diagnosis of both Dr Kaplan and Dr Duke are properly described as “severe”. The plaintiff has gone from being a gregarious and involved person, both in her work and family life, to a person who is now dependent upon her family members, including her children, to get through the activities of daily living. I accept that the plaintiff’s condition, unfortunately for her, is permanent, in the sense that it is for the foreseeable future. I find that the plaintiff has satisfied the statutory test to be granted leave to bring proceedings to recover damages for pain and suffering in respect of both the physical injury to her right shoulder and for the psychiatric condition of Adjustment Disorder with Mixed Anxiety and Depressed Mood combined with a Panic Disorder with agoraphobia.
Loss of earning capacity
127 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, she must establish that:
(a)at the date of the hearing, she has a loss of earning capacity of 40 per cent of more pursuant to s134AB(38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently pursuant to s134AB(38)(e)(ii).
128 The measurement of the loss of earning capacity as set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
129 The measurement of loss of earning capacity is set out as a comparison between “without injury” earnings and the capacity of “after injury” earnings that the plaintiff has if engaged in suitable employment. The former must be calculated by reference to the six-year period specified in s325(1)(f). These earnings consist of a gross income expressed at an annual rate that the worker was capable of earning from personal exertion, or would have earned, or would have been capable of earning from personal exertion had the injury not occurred.
130 I find that the plaintiff’s “without injury” earning capacity was $58,523.00 gross per annum based on her income from personal exertion as a domestic care worker. The statutory loss of 40 per cent means that if the plaintiff is unable to earn an income greater than $35,113.00 gross per annum from her personal exertion, then she has satisfied the test for loss of earning capacity.
131 In the course of these Reasons, I have examined the medical opinion in relation to the plaintiff’s work capacity. In respect of the plaintiff’s psychiatric condition and the consequences flowing from that in relation to her work capacity, both Dr Duke and Dr Kaplan are of the opinion that the plaintiff is unfit for any suitable employment. I accept that that is a proper assessment of the plaintiff’s capacity for work. Based on the opinions of those two doctors, I find that the plaintiff has no capacity to earn income from her personal exertion as a result of her psychiatric condition. I accept and find that this psychiatric condition is permanent, in the sense that it is for the foreseeable future.
132 In respect of the plaintiff’s physical complaints arising from her right shoulder injury, the preponderance of the medical evidence is that the plaintiff has a capacity to perform part-time work in the roles of medical receptionist, a call centre operator or an information attendant at a shopping centre.
133 The plaintiff has been untested in returning to work in this regard due to her psychiatric injury. I accept that the plaintiff may have a theoretical capacity on a physical basis to perform part-time work. However, I am not satisfied that the plaintiff’s theoretical capacity to do part-time work amounts to an income of greater than $35,000 gross per annum. I accept that the plaintiff has satisfied the requirement that she is unable to engage in paid employment on the basis of her right shoulder injury into the foreseeable future.
134 I accept that the plaintiff has satisfied the statutory test for loss of earning capacity under the Act in respect of both the physical injury to her right shoulder and her psychiatric injury.
Conclusion
135 The plaintiff is granted leave to bring proceedings for loss of earning capacity in respect of the physical injury to her right shoulder which occurred on 8 July 2013. I also grant leave to the plaintiff to bring proceedings to recover damages for loss of earning capacity as a result of the psychiatric injury arising out of the accident on 8 July 2013.
136 I will hear the parties on costs.
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