Kucek, Georgina v Godfrey Hirst Australia Pty Ltd
[2012] VCC 1531
•18 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02449
| GEORGINA SUSAN KUCEK | Plaintiff |
| v | |
| GODFREY HIRST AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 13 April 2011, 20 June 2011, 8 and 9 August 2011 | |
DATE OF JUDGMENT: | 18 October 2012 | |
CASE MAY BE CITED AS: | Kucek, Georgina v Godfrey Hirst Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1531 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – low-back injury – left shoulder injury – pain and suffering – loss of earning capacity – relevant principles – disentanglement of injuries.
LEGISLATION CITED – Accident Compensation Act 1985.
CASES CITED – Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health [2008] VSCA 153; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Sabo v George Weston Foods [2009] VSCA 242; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Shock Records Pty Ltd v Jones [2006] VSCA 180; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142; Dressing v Porter [2006] VSCA 215.
JUDGMENT – Leave to the plaintiff to bring common law proceedings for pain and suffering damages only in respect to low-back injury and left shoulder injury.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Ms A M Malpas | Victorian Compensation Lawyers Pty Ltd |
| For the Defendants | Mr C A Miles | Wisewould Mahoney |
HIS HONOUR:
Introduction
1 By way of Origination Motion, Georgina Susan Kucek (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for personal injuries arising out of or in the course of her employment with Godfrey Hirst Australia Pty Ltd (“the first defendant”), to wit:
(a) a low-back injury suffered during the course of such employment and, in particular, on or about 30 September 2003 (“the low-back injury”); and
(b) a left shoulder injury suffered during the course of such employment and, in particular, on or about 23 August 2006 (“the left shoulder injury”).
2 Senior Counsel for the plaintiff accepted that it was inappropriate to seek aggregation of the low-back injury and the left shoulder injury, and submitted that each injury had to be determined as to whether or not it was a “serious injury” within the meaning of the Act. I accept such submission.[1]
[1]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
3 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect of the low back and left shoulder injuries.
4 The plaintiff and Mr Richard Page (the treating surgeon of the plaintiff) gave evidence and were cross-examined. Both parties tendered various documents.[2]
[2]Annexure “A”
Relevant Legal Principles
5 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the low-back injury and/or the left shoulder injury are serious injuries within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See s134AB(19)(a) of the Act
6 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means─
(a)permanent serious impairment or loss of a body function … .”
7 The part of the body said to be impaired for the purposes of paragraph (a) is the low back and/or the left shoulder. In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a) the low-back injury and/or the left shoulder injury suffered by her arose out of or in the course of or due to the nature of her employment with the first defendant on or after 20 October 1999;[4]
[4] See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [11]
(b) the low-back injury and/or the left shoulder injury, with their resulting impairments, must be “permanent” – that is, permanent in the sense that they are “likely to last for the foreseeable future”;[5]
(c) “the consequences” to the plaintiff of the low-back injury and/or the left shoulder injury in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable.”[6] The test for “serious” is sometimes referred to as the “narrative test”.
[5] See Barwon Spinners (op cit) at [33]
[6]See s134AB(38)(b) and (c) of the Act
8 In addition, in relation to “pecuniary loss damages”, the plaintiff has a specific burden[7] to establish:
[7]See s134AB(19)(b) and (38)(e) of the Act
(a) that as at the date of hearing she has a loss of earning capacity of 40 per cent or more as a result of the low-back injury and/or the left shoulder injury, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[8] and
(b) that after the date of hearing she will continue permanently to have a loss of earning capacity as a result of the low-back injury and/or left shoulder injury that will be productive of a financial loss of 40 per cent or more.[9]
[8]See s134AB(38)(e)(i) of the Act
[9]See s134AB(38)(e)(ii) of the Act
9 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of the low-back injury and/or the left shoulder injury for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[10]
[10]See s134AB(38)(h) of the Act
(b) must make the assessment of “serious injury” at the time the application is heard;[11]
[11]See s134AB(38)(j) of the Act
(c) must give reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[12]
[12]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 586 at [89]-[92]
(d) notes that s134AB(38)(b) provides that the consequences of injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” damages only. A worker who satisfies the loss of earning requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.[13]
(e) notes that it has been asserted that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[14]
[13]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and in particular at [60]-[64]
[14]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
10 Counsel for the defendants initially confirmed that the plaintiff was not relying on any “right ankle injury” to be a serious injury (as originally alleged) and, furthermore, no reliance was to be placed on paragraph (c) of the definition of “serious injury” (as originally alleged).
11 In relation to the low-back injury, the essential position of the defendants was that, to the extent that there was any compensable low-back injury, the plaintiff had recovered from that. In relation to the left shoulder injury, the defendants acknowledged that the plaintiff had undergone surgery on such shoulder. However, the plaintiff had never reported any difficulty with her shoulder when employed by the first defendant and any treatment only commenced after she ceased work.
12 In any event, the defendants assert that the low-back injury and/or the left shoulder injury did not satisfy the requirements of the narrative test.
The Evidence of the Plaintiff
13 When this matter commenced on 11 April 2011, the plaintiff gave evidence that the contents of her affidavits sworn on 18 September 2009 and 10 March 2011 were “true and correct”.[15]
[15]Transcript (“T”) 17, L29
14 The plaintiff gave evidence that:
(a)In 2001, she suffered an injury to her left shoulder as a result of lifting mats, and such injury resolved with no ongoing problems;
(b)In or about 2001 and 2002, she had problems with an ankle which had been injured;
(c)On or about 23 March 2002, she suffered some pain to her back when performing machinery work and moving a pallet and stacking drapes, and that injury also “resolved”;
(d)In early 2003, she was sitting on a chair when it “snapped”, causing her to fall backwards on her back, which gave rise to an initial back pain which later “resolved”.
15 When asked what medication she was presently taking, the plaintiff replied:
“I take OxyContin 10 mg through the day and then I take 20 mg at night. Also I take Endep which now sometimes I take 50 mg and I also take Endone and Panadeine Forte and Panadol Rapid is usually when I go out, so I'm not drowsy.”[16]
[16]T 19, L9
16 The plaintiff gave evidence that she takes one to two Endone a day and from two to four Panadeine Forte a day, depending on the condition of her left shoulder. She takes Panadol Rapid when she has to drive, as the Panadeine Forte makes her drowsy.
17 When queried as to what pain causes her to take the OxyContin and other drugs, the plaintiff replied “the lower back” and “my shoulder”. She described the pain in her shoulder to be the worst at this time, although after the shoulder surgery, the pain eased off for a couple of years and it was her back pain which was the worst during that period of time. However, the shoulder pain has come “back bad again”.
18 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
·She is a fifty-two year old married woman with no dependent children. She has three grandchildren.
·She was born in Croatia in 1958 and migrated to Australia with her parents and siblings in 1970, after which she attended high school to Year 9 in Australia.
·On leaving school, she completed a short receptionist course through TAFE.
·Prior to her employment with the first defendant, she was generally employed in unskilled manual-type work.
·In or about 1993, she commenced full-time employment with the first defendant in the “sample department”. She remained employed by the first defendant until about September 2006, when she ceased work as a result of each of her “work injuries”.
·She describes her employment duties with the first defendant as follows:
“Working hours were varied and included but were not limited to 40 hours per week plus overtime. During my time there I worked in the samples department performing activities including but not limited to tasks requiring constant, repetitive and at times forceful and constant pulling, pushing, cutting carrying and heavy lifting of items. In addition, my work generally involved repetitive and intensive lifting, reaching, twisting and turning of items.”[17]
[17]See Exhibit A at page 11 PCB
·Over the years, she has had surgery to remove her tonsils in 1973, undergone three operations on her ears (about 1974, 1976 and 1985), undergone a hysterectomy and bilateral salpingo-oophorectomy, which involved the removal of her ovaries, suffered some hearing loss, and in or about July 2006, a needle pierced her nail and skin on her left thumb. All such conditions did not cause any or any significant interference with her capacity to work.
·Since her work injuries, she has suffered a lesion of the right upper humerus and has consulted her doctor, who arranged for an MRI scan and ongoing tests, including a biopsy.
·Over the course of her employment with the first defendant from 20 October 1999 to September 2006 and, in particular, on 26 July 2001, she sustained injury to her right lower extremity and, in particular, the ankle, together with stress and anxiety.
·Over the course of her employment the first defendant from 20 October 1999 to September 2006, and, in particular, on or about 30 September 2003, she suffered injury to her lumbar spine, together with stress and anxiety.
·Over the course of her employment with the first defendant in the period from 20 October 1999 to September 2006, and, in particular, on or about 23 August 2006, she suffered injury to her left upper extremity and, in particular, the left shoulder, together with stress and anxiety.
·She initially experienced pain in her right ankle in July 2001, when she bumped it while manoeuvring between pallets, and later, when a pallet jack struck her ankle. Furthermore, she was put on modified duties for a short time and in or about January 2002, she experienced further pain in her right ankle after pushing a box of chips. The plaintiff comments:
“… I have been experiencing varying levels of pain ever since. I now sometimes have trouble walking and standing on my right leg.”[18]
[18]See Exhibit A at page 13 PCB
·She describes the circumstances of her low-back injury in the following terms:
“On or about 30 September 2003 I was working in the samples department at Godfrey Hirst. My duties involved loading carpet sample books onto a pallet. In order to perform my duties I was required to lift an empty pallet when I experienced increasing low back pain. I reported the incident to my supervisor and attempted to continue to work but the pain was too much.
My work injury to my back did not improve so I took a short period of time off work to assist in my recovery from this injury. I then undertook a graduated return to work and was performing modified duties on a full-time basis. I continue to have intermittent time off work at times when even performing the modified duties caused significant pain.”[19]
[19]See Exhibit A at pages 13-14 PCB
·She also describes the circumstances of her left shoulder injury in the following terms:
“On or about 23 August 2006 I was working in the samples department at Godfrey Hirst performing modified duties to assist in the rehabilitation of each of my work injuries from 2003. I had been directed to use a sewing machine to sew material. The material was stacked behind me on the left hand side. The task involved reaching back and dragging the material forward piece by piece, sewing the edges and then throwing the material forward. While performing this task I suffered a sudden onset of pain in my left shoulder.
Following the work injuries in 2006 I continued to work and was placed on lighter duties for approximately five days. Following this time I returned to my previous modified duties despite still experiencing significant pain from each of my work injuries.”[20]
[20]See Exhibit A at page 14 PCB
·In or about September 2006 [later evidence establishing it to be 28 September 2006], she ceased working with the first defendant after being informed that “sheltered, modified duties were no longer available”.
·After the occurrence of her right ankle injury, she consulted her general practitioner, Dr Stephen Fitzgerald, who had been her general practitioner for about nine years. He prescribed medication and referred her for tests.
·Following the occurrence of her low-back injury, she again consulted Dr Fitzgerald, who prescribed medication and referred her for physiotherapy with Mr Adam Walters. In particular, she was referred by Dr Fitzgerald for a CT scan, ultrasound and x-ray of her back. Furthermore, Dr Fitzgerald referred her to the spinal specialist, Dr Steve Jensen, who administered facet joint injections to her back on about three occasions. She also underwent an MRI scan of her low back in October 2005.
·She now wears a back brace “on occasion” for support when she has experienced increased levels of pain.
·Following the occurrence of her left shoulder injury, she again consulted Dr Fitzgerald, who arranged for an x-ray and ultrasound of her left shoulder in or about October 2006, prescribed medication and referred her to physiotherapy.
·She was diagnosed with a tear to the muscle in her left shoulder and was referred by Dr Fitzgerald to a specialist, Mr Richard Page, who subsequently performed an arthroscopic subacromial decompression of her left shoulder in or about December 2007, after which she underwent physiotherapy to aid her recovery.
·In or about November 2008, she attended the St John of God Hospital for an ultrasound of her right foot and a bone scan, because of increasing pain in her right ankle. At that time, a cortisone injection was administered into her right foot.
·She has developed depression, for which she has been prescribed anti-depressant medication by Dr Fitzgerald as from 16 September 2009.
·She continues [at the time of swearing the first affidavit] to consult her general practitioner, attend a physiotherapist and also attend Dr Jensen for specialist treatment. She continues to take medication consisting of OxyContin, Endep, Codalgin Forte and Panadeine Forte, together with medication to relieve her digestive system problems caused by the stronger painkilling medication.
·Each of her “work” injuries cause her constant although varied pain in her right ankle, low back, both legs, left shoulder and left arm. Her symptoms have been generally exacerbated with repeated or strenuous activity.
·She has undergone gastroscopies as a result of suffering reflux disease brought about by the ongoing medication she takes.
·She is frustrated by her injuries and incapacity and the disruption to her life which her work injuries have caused.
·She feels that because of her employment background and limited education, she is more suited to manual labour, which she is unable to perform.
·Her “work injuries” cause her trouble sleeping and she wakes up. The medication is not always effective.
·She has “significant problems” with self-care and personal hygiene as a result of each of her “work injuries” and often requires the assistance of others to help with pants, shoes and showering.
·Her right ankle injury causes her to experience increased pain and difficulty when standing for prolonged periods, walking for prolonged distances or performing repeated climbing and exercising.
·Her low-back injury caused her to experience increased pain and difficulty following physical activities such as standing or sitting for prolonged periods, reclining for too long in one position, walking for prolonged distances or in a repeated fashion, squatting, getting up after kneeling, reaching or bending.
·Her left shoulder injury causes her to experience increased pain when performing physical activities such as reaching above shoulder level, carrying, lifting, pushing, pulling, climbing or exercising with the left arm.
·Each of her “work injuries” have “significantly affected” her mobility, endurance and reliability. Furthermore, each of her “work injuries” have “adversely affected” her participation in normal marital relations.
·Each of her “work injuries” has impacted on her ability to be active with her grandchildren and to be involved in dancing, jogging or exercising.
·Prior to her work injuries, she performed all the domestic duties at home, and due to each of her “work injuries, she now finds it difficult to complete simple household tasks such as vacuuming, mopping, ironing, hanging out washing and gardening. She is dependent on her husband and other family members to perform activities in and out of the house, which leaves her feeling “useless, frustrated and much older than I would otherwise feel”.[21]
·She receives home help to assist with cleaning various parts of the house, and sometimes ironing.
·At the time of her low-back injury in 2003, she was earning about $493.07 gross per week for a forty-hour week plus overtime when available.
·At the time of her left shoulder injury in 2006, she was earning about $562.02 gross per week for forty hours of work.
·She continued working after her right ankle injury in July 2001 despite “my pain” and furthermore, after her back injury in 2003, she continued working on modified duties (after a break of two weeks) although she took intermittent time off because of such injury. After the left shoulder injury on or about 23 August 2006, she attempted to continue working but “the pain got too much for me to handle and I reported the pain to my supervisor”.[22] In September 2006, her employment was terminated.
·She has “found it difficult” to find any alternative work that accommodates her injuries. Absent her injuries, she would have worked to sixty-five years of age.
[21]See Exhibit A at page 18 PCB
[22]See Exhibit A at page 20 PCB
19 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
· She believes she would “experience difficulty re-training” as a result of each of her work injuries.
· She believes that had her employment not been terminated in 2006, she would not have been able to return and continue with that work as a result of each of her work injuries to her right ankle, low back and left shoulder.
· Her “main problem” is the constant, though varied physical pain and incapacity as a result of the injuries to her right ankle, low back and left shoulder.
· She continues to seek treatment from her general practitioner, Dr S Fitzgerald, at regular intervals, who prescribed a steroid injection in January 2009. She continues to wear a back brace on occasions for support during periods of increased levels of pain.
· In or about November 2010, she was again referred to Mr Page because of pain in her left shoulder. She was informed by Mr Page that there was nothing he could do and she was referred back to Dr Fitzgerald, who prescribed another steroid injection in or about December 2010.
· On or about 24 February 2010, she began consulting a dietician, Mary Virgona, to assist her treatment of the side-effects of her work injuries.
· On or about 10 March 2010, she commenced consulting a psychiatrist, Dr Janette Mohr, for treatment of her depression that has arisen as a consequence of her injuries. She currently takes Cymbalta for her depression. She also takes a variety of painkilling drugs.
· She misses not being able to perform a normal working life and continues to experience difficulty with getting a restful night’s sleep due to each of her work injuries.
· She continues to have difficulties in her marital life and also engage in various activities involving social events.
· Prior to her injuries, she enjoyed gardening, going out dancing and going on walks, all of which she can no longer participate in due to her “work injuries”.
· In or about 2007, she suffered increased pain as a result of travelling to Croatia for her father-in-law’s funeral. Because of the ongoing difficulties and financial restraints, they did not return to Croatia for her mother-in-law’s funeral.
· She has difficulty communicating with people as her tolerance for conversation noise and concentration is far more limited now because of her ongoing pain.
· She has been urged by her general practitioner to be as “active” as possible and she tries to walk as and when she is able, but her tolerance for any distance varies from time to time.
· In or about May 2010, her husband suffered a heart attack, which has required her son to come and live with them at home to assist both of them.
· She is no longer able to help with laundry because of her left arm difficulties and is no longer able to cope with cooking, picking up and cleaning heavy plates or grocery shopping because of pain in her shoulder and low back.
· She has difficulties performing actions such as strong grasping holding or percussive movements of her hands as they tend to cause pain in her left shoulder and neck.
· Prior to her injuries, she drove a manual car but as a result of the difficulties with each of her “work injuries”, she sold such car and drove an automatic car with power steering. However, such car was a small sedan and she experienced increased pain as a result of getting in and out of such vehicle, which caused her husband to purchase a Nissan Morano, which sits higher from the ground and is easier for her to get in and out of.
· As a result of her “work injuries and resulting loss of income”, she and her family have had to sell their house in or about 2007 to purchase a small house in order to reduce the mortgage payments.
20 Under cross-examination, the plaintiff gave the following pertinent evidence:
· Following her back injury in September 2003, she was off work for about three to five days and thereafter, resumed modified light duties, working eight hours a day. She continued that work until late September 2006.
· For the majority of that time, such modified duties involved six hours a day sewing and two lots of one hour per day in standing up type duties.
· Over that period of time, she earned her full wages and had wage increases.
· When queried about time off work, the following evidence was given:
Q:“Over that period from 2003 after you injured your back to 2006 when you were put off work, you had little time off, very little time off?---
A:I had quite a lot of time off, yes.
Q:It did not affect your wage earning, did it?---
A:Well, I used my sick pay and … .”
HIS HONOUR:
Q:“When you say time off, are you saying time off in relation to your back or just generally?---
A:To my back.
Q:Approximately how frequently were you having time off?---
A:Not sure now, but I had quite a lot of time off.
Q:Are you talking about a day a month, a day six months, or?---
A:Probably a month.
Q:A day a month?---
A:To two, three days a month.
Q:How was that paid for?---
A:Sometimes I used my sick pay and sometimes I’ve lost the pay.”[23]
[23]T 21, L24 – T 22, L6
· The plaintiff was taken to a job offer dated 23 June 2006. The plaintiff agreed that her two hours of standing duties, when performing the alternative duties, involved, on occasion, bevelling (performing the work of Operator 1), working on the glue line (but again performing the work of Operator 1), assembling swatches, punching, which involved assisting with stacking but did not involve the use of a foot pedal, and assisting the operation of the tarp press.
· Otherwise, the plaintiff performed sewing duties which involved some work with drapes.
· Such duties continued until the shoulder problem on or around 24 August 2006, at which time the amount of sewing work with the drapes was cut back because the plaintiff had stated that the work on the drapes produced or aggravated her left shoulder problems.
· Such work restrictions prior to the change in the amount of drapes to be sewn were related to her low-back condition and she was not required to lift anything weighing more than 5 kilograms.
· The heaviest drape weighed about 3 kilograms, but she was required to pick up a couple each time.
· Although the plaintiff agreed that the duties were supposed to be “self-paced”, the plaintiff stated that she was given a “hard time” if you did not do what you were supposed to do. Although she complained to other girls on the line, she made no complaints to anyone in charge about the pace of the work. Over time, the physiotherapist, Mr Walters, monitored the type of duties that she performed and sometimes he would say she can do a certain job; at other times he would say she cannot do that aspect of it.
· After she reported her problem with her left shoulder on 24 August 2006, her duties were further modified consistent with a job offer dated 24 August 2006. The modification was that although she continued to perform sewing duties, she was not to perform sewing duties on the drapes until some progress in her condition had been shown.
· Certain parts of an affidavit from one Craig Herbert, the group occupational health and safety manager of the first defendant, was put to the plaintiff. In particular, it was put by Mr Herbert that in relation to the left shoulder injury, the plaintiff did not have to reach backwards to pick up drapes to sew as she was sitting on an ergonomic swivel chair with wheels which allowed her to rotate to the left to obtain a sample of carpet instead of reaching backwards. The plaintiff accepted that she was supplied such a chair, but you still had to reach and pull the material.
· The plaintiff described how she had to turn her swivel chair and reach with her left hand “high” to pull the rug down onto the table to put it through the sewing machine. She described that the height could be as high as slightly above head height.
· The plaintiff also disagreed with the comments of Mr Craig Herbert that such work was “self-paced”, although it was “supposed to be”.
· Although there was no quota, she was “told off” and asked “what are you doing” if she did not do enough of the work and also she was “told off” if she walked around.
· The plaintiff agreed that she lodged an Incident Report dated 24 August 2006 in relation to her left shoulder but such report records that it was an injury without medical treatment. The following evidence was given:
Q:“In other words your incident report ticked the box that said, ‘injury without medical treatment’?---
A:That’s right.
Q:That was a fact, you had no medical treatment for your shoulder until a couple of months after you stopped work?---
A:That’s right because he threatened me if I another – to let me off I had another injury. Everyone was afraid to put in – go to doctors then.”
HIS HONOUR:
Q:“Just on that just so I understand. I think I was being told you finished up work in 28 September 2006. First, what made you stop work on that day?---
A:They put me off.
Q:They put you off?---
A:Yes.
Q:Is it right as it’s been suggested to you by counsel, or perhaps put it the other way, you tell me. When was the first time you got medical treatment for your left shoulder problem after it occurred obviously when did that happen?---
A:I’m not sure of the date but when they put me off I was home for about a week or two, you know, really upset what they put me off and then it was still sore, it was still painful, then I went to my doctor.”
MR MILES:
Q:“I suggest to you that the material that His Honour will no doubt read indicates that you went to the doctor on 20 October 2006?---
A:I’m not sure of the date.
Q:But you were upset they put you off work weren’t you?---
A:Yes, I was.
Q:You tried to fight them on that, you said, ‘well, don’t put me off’. You were reluctant to be put off work?---
A:Pardon?
Q:You were very reluctant to be put off work. You wanted to continue at work on your light duties didn’t you?---
A:Well, I was getting – but I loved my job, yes.
Q:You loved your job?---
A:Yes, I did.
Q:You wanted to stay there doing the light duties?---
A:I would have stayed.
Q:You wouldn’t stay?---
A:I would’ve stayed but – till I could stand the pain.”[24]
[24]T 28, L26 – T 29, L31
· Over the time from when she reported her left shoulder problem on 24 August 2006 until she was sent home on 28 September 2006, the plaintiff re-commenced sewing because she “had to”.
· The plaintiff agreed that she met Mr Herbert on 28 August 2006 and advised him that the left shoulder was “reasonably better” and that she would try sewing drapes again. Furthermore, when she again met Mr Herbert on 31 August 2006, she said her left shoulder was “getting better”.
· Although she was working three hours per day on the drapes, she was having problems, but she “didn’t say it” to Mr Herbert because she did not want to be put off.
· At the time that she was put off work on 28 September 2006, she was being certified fit for normal light duties by her general practitioner, Dr Fitzgerald.
· She has only been referred to Dr Jensen for her low-back condition, who arranged an MRI investigation in 2005.
· Her general practitioner has been the doctor providing any treatment in relation to her back and that has consisted of tablets.
· She is naturally right handed.
· Although her injury to her left shoulder occurred on 24 August 2006, she probably did not consult Dr Fitzgerald until 20 October 2006 for that condition.
· The duties that she had been undertaking from 2003 to 2006 was a “productive job” and a “moderately heavy job” which she had managed for several years.
· She agreed that the surgery to her left shoulder was “pretty successful”.
· She was referred to a psychiatrist more than a year ago and sees her about every four weeks and is prescribed Cymbalta and takes one tablet a day.
· Since ceasing work in September 2006, she has not been looking for work, has not applied for any jobs, has not looked in the paper or made enquiries of employment agencies, because of pain in her shoulder and low back. In particular, she agreed that it is a combination of pain in her low back and shoulder that stops her looking for work.
· She has not thought about retraining or rehabilitation to lead to alternative forms of work.
· Her ability to sit varies, and on a good day she might be able to sit up to an hour if she is comfortable, whereas on a bad day sometimes she cannot even sit.
· She has some problems with bending and standing.
· The plaintiff was shown a video said to be taken on 4 August 2010, in which the plaintiff accepted showed her attending a car auction yard in Gordon Luck Avenue, Altona. It was suggested to the plaintiff that the video, both by direct viewing and by inference (where she was not viewed for the whole period) indicates that she was capable of sitting from 10.00 am until about midday. She could not recall the period of time that she did remain seated but reaffirmed that she would have to move when she felt uncomfortable.
· The plaintiff also accepted that the video revealed her putting some items in the back seat of her car and when queried as to whether or not such video showed a reasonably good range of movement of her left shoulder, the plaintiff stated:
“Well I can’t recall, they were light items anyway.”[25]
[25]T 49, L10-12
· The plaintiff accepted that she and her husband owned a number of rental properties from 2002 onwards, including properties situated at 2 Tennyson Street, Norlane, 7 McKinley Avenue, Corio, 2 Iona Street, Norlane and 1 Banff Court, Corio. All such properties were ultimately sold. As at the date of hearing, neither the plaintiff nor her husband had investment properties.
· Her husband had a heart attack in May 2010 and had been on a Disability Pension which continues. Furthermore, he subsequently had a stroke.
· The plaintiff accepted that her right ankle injury, her low-back injury, her left shoulder injury and psychological problems all contributed to her incapacity for work.
· She recently underwent an MRI scan of her left shoulder organised by her treating surgeon, Mr Page.
· When various jobs were put to her, the plaintiff denied she was capable of doing such work, either because of the nature of the job (reaching, sitting for any period of time et cetera) and the degree of pain that she suffers.
· When queried by the Court whether she wanted to go back to work, the following evidence was given:
Q:“Do you want to go back to work or do you see yourself retired?---
A:Well, I’m on a Disability Pension because some days I am in bed seven days because anything can aggravate my back and then I’m stuck in bed for seven days on just drugs and not going.
Q:Because of back pain?---
A:Of my back pain, yes. … .”[26]
· She accepted that she lives in a suburb of Geelong and has access to a car which she can drive. She also accepted that if she was “fit” there are factories where jobs could be found.
[26]T 64, L22-26
21 When queried by the Court as to why she has not looked for any work, the following evidence was given:
Q:“If I could ask you Mrs Kucek, quite a few times jobs were suggested to you and you said – ‘I don’t know, I haven’t tried it’. It is clear that you haven’t gone back to any sort of work since you[r] … [accident]. Do you think you could work in these jobs, or not?---
A:I don’t know, because sometimes it depends. Like the pain, sometimes like with my back I’m in bed for days without getting out of bed or with my shoulder and then I try things to do when I’m able to. Like if the pain’s not that bad, you know, I try things. But then when the pain gets really bad, there’s nothing I can do much.
Q:Try and tell me if you can, what’s been your thinking process. You said you haven’t looked for jobs or applied for jobs?---
A:No, I haven’t.
Q:Why is that, why have you taken that view?---
A:Because like it’s of the pain that I … .
Q:It is the pain?---
A:Yes.
Q:And that is the pain in your back and your left shoulder?---
A:Yes.”[27]
[27]T 68, L17 – T 69, L3
22 Under re-examination, the plaintiff gave the following pertinent evidence:
· She was on crutches and using a walking frame in or about November 2010. In particular, the plaintiff gave the following evidence:
“… I just woke up with this bad pain down my leg, my left leg, and I took tablets. That didn’t help. I went – I’m not sure if I went to see Stephen Fitzgerald, but the pain got that bad that my husband just put me in the car and took me to the Geelong Hospital, because no tablets would take the pain away. …
Q: Where were you experiencing the pain at that time?---
A: From my knee down and when I got to the Geelong Hospital, they saw me in so much pain and they took me in and he said it was back related and yeah, gave me the crutches. But due to my shoulder it was hard on crutches, so my brother-in-law’s mum gave me the walking frame, that was easier to walk around the house instead of the crutches.”[28]
[28]T 69, L24 – T 70, L6
· She has had pain in the left leg before and she has right groin pain since the onset of her back condition.
· When queried about whether she complained to any supervisors about her left shoulder injury, the plaintiff stated:
“Yes, I went to my supervisor Robert first and I said to him, I said ‘My shoulders are really sore’ and I did, I said to him ‘Can I do smaller ones so I see if it’s going to ease off’ and he said ‘No, if you can’t do your job, go and see a doctor and go home’.”[29]
[29]T 71, L22-26
· She confirmed that she did not lose any time in relation to her shoulder injury after its occurrence in August 2006.
· When queried as to what she meant that the medication would be a factor in her returning to work, the plaintiff stated:
“Most of the times I am drowsy and just sleepy because it’s a high medication. … .”[30]
[30]T 72, L26-28
· In 2010, the pain in her left shoulder started getting worse and that was when she was referred to Mr Page again. Mr Page arranged for a further MRI scan of her shoulder.
The Medical Treatment of the Plaintiff
(a) The Radiological Studies undertaken by the Plaintiff
(i) MRI scan of the lumbar spine undertaken on 5 October 2005 at the request of Dr S Jensen.[31] The comment of the radiologist is as follows:
[31]See Exhibit A at page 68 PCB
“No focal disc protrusion or nerve root compression is identified within the lumbar spine with a minor central annular tear within the posterior disc margin of L5.
No significant facet arthropathy demonstrated.”
(ii) Plain x-ray of the left shoulder and ultrasound to the left shoulder undertaken on 24 October 2006 at the request of Dr S Fitzgerald.[32] The radiologist concluded:
[32]See Exhibit A at page 69 PCB
“There is a small partial thickness tear of the supraspinatus tendon anterior to the inferior surface. There is some thickening of the overlying subacromial-subdeltoid bursa.”
(iii) MRI scan of the left shoulder on 21 March 2011 at the request of Mr R Page.[33] The radiologist concluded:
“Tendinosis of the subscapularis and in particular the supraspinatus tendon, with an extensive delamination tear of the mid supraspinatus tendon, which extends intra-articularly. Small subacromial/subdeltoid bursal effusion. Superior labral degeneration but no labral tear is present.”
[33]See Exhibit A at page 69(b) PCB
(b) The Evidence of Dr Stephen Fitzgerald
23 Dr Stephen Fitzgerald is the treating general practitioner of the plaintiff. The plaintiff relies on reports from Dr Fitzgerald dated 22 November 2006[34] and 2 July 2010.[35]
[34]See Exhibit A at page 87 PCB
[35]See Exhibit A at page 89 PCB
24 Dr Fitzgerald reports that the plaintiff presented to him on 20 October 2006 complaining of persistent pain and reduced range of movement of her left shoulder following an injury at work on or about 23 August 2006.
25 In particular, the plaintiff informed Dr Fitzgerald that she felt a sudden pain in the shoulder when moving some drapes and hoped that it would “settle on its own” but the pain and stiffness were persisting.
26 Dr Fitzgerald considered that clinical examination was suggestive of rotator cuff tendonitis or tear, and he arranged for her to have some imaging of the left shoulder, which revealed a partial thickness tear of the rotator cuff (supraspinatus) muscle with evidence of inflammation.
27 Dr Fitzgerald considered that such a shoulder injury would have made it difficult for her to perform some of her duties as specified in relation to her back problem. When he became aware of the left shoulder injury, he specified modifications to her duties that would incorporate the shoulder condition.
28 Her treatment involved resting the shoulder, anti-inflammatory medications and physical therapy. He anticipated that at that time there should be gradual recovery over a six to twelve-month period, although a small percentage of similar patients continue to suffer some ongoing pain and stiffness long term.
29 In his second report, Dr Fitzgerald notes that the plaintiff has been treated for both her back and left shoulder injuries sustained during the course of her employment with the first defendant. In particular, he notes that the plaintiff injured her back at work in or around September 2003 when lifting a pallet.
30 At that time, she was diagnosed with disc-related mechanical back pain and her treatment included analgesia, physical therapies, and nerve blocks from the spinal specialist, Dr S Jensen. In particular, the plaintiff was given light duties to perform, and continued to perform those light duties up until 2006.
31 In relation to her left shoulder, Dr Fitzgerald notes that such injury was “slow to respond to conservative treatments” and she was referred to the orthopaedic specialist, Mr Richard Page, in 2007, who performed corrective arthroscopic surgery to the left shoulder.
32 Dr Fitzgerald notes that following her left shoulder injury, she was made redundant and ceased work.
33 In his last report, Dr Fitzgerald states:
“Currently she continues to suffer persistent back pain and left shoulder discomfort. She has significant pain daily and is restricted in many activities of daily living. She needs ongoing strong analgesia and has required assistance doing basic home duties. As a consequence of her work-related injuries she has now developed depression and is under the care of a psychiatrist, Dr Janette Mohr. Related to the depression and a reduction in her ability to exercise due to her injuries, she has gained weight significantly since she was retrenched from Godfrey Hirst.
Given the length of time since her injuries, I feel that it is unlikely that Georgina’s conditions will improve significantly in the future. I believe she has a degree of permanent impairment.”[36]
[36]See Exhibit A at page 89 PCB
(c) The Evidence of Dr S Jensen
34 The plaintiff relies on medical reports from Dr S Jensen dated 8 March 2006,[37] 22 November 2006[38] and 23 November 2006.[39] It is to be noted that the defendants also make reference to Dr Jensen’s reports dated 26 April 2007[40] and 18 March 2008.[41]
[37]See Exhibit A at page 82 PCB
[38]See Exhibit A at page 87 PCB
[39]See Exhibit A at page 85 PCB
[40]See Exhibit 2 at page 66 DCB
[41]See Exhibit 2 at page 69 DCB
35 The plaintiff initially consulted Dr Jensen on 4 October 2005 on referral from her general practitioner, Dr S Fitzgerald. At that time, she was working full time with the first defendant on modified duties consisting of predominantly sewing.
36 The plaintiff gave a history that in September 2003, she lifted an empty pallet and felt a shooting pain through her lower back. After advising a supervisor of her injury, she was sent home and later saw Dr Fitzgerald, who advised rest. Apparently the first defendant referred her off to a chiropractor, which she attended for a few weeks, and obtained some transient relief.
37 She had about three days off work before returning to modified duties, which have continued. She was referred to a physiotherapist and also had commenced a gymnasium-based rehabilitation program, but then went overseas and was unable to complete the full three-month program.
38 At the initial consultation, she complained of persisting pain across her low back, radiating into the anterior aspect of both thighs, more so on the right side. The pain went as far as the knee. She described the pain as “stabbing, aching and dull”. She had difficulties with bending or standing or sitting for any length of time.
39 The plaintiff denied any significant past medical history and never had previous episodes of back pain or other injuries. The plaintiff said she had become depressed because of her limitation in her activities.
40 Dr Jensen noted at the initial examination there was “much grimacing”, suggestive of “significant abnormal illness behaviour” but considered this was less prominent with subsequent examinations.
41 When seen on 7 March 2006, there was restriction of low-back movement, but also some non-organic signs. Dr Jensen had available the MRI scan of the low back dated 5 October 2005.
42 He was of the opinion that the plaintiff was suffering from “chronic somatic lumbosacral spine dysfunction”. He explained that the term “somatic” means that the pain is coming from one or more of the physical structures related to the spinal column and is neither from an internal organ, or psychological in origin. Dr Jensen recommended a course of injections into the tender areas of the lumbosacral spine. Indeed, he noted that there was a significant drop in her level of pain after such injections. He recommended her to remain active and to resume a gymnasium-based exercise program. In particular, he recommended a course of proltherapy injections, which involves injections containing Lignocaine and Dextrose.
43 On the history related to him, Dr Jensen was of the opinion that her employment with the first defendant was a significant contributing factor to the onset of her low-back condition.
44 When later seen on 20 April 2006, Dr Jensen considered that her condition had not really changed and at that time, she was about to have the fourth of six injections, but because of no ongoing significant impact on her level of pain, such procedures were abandoned. He notes that she was “just coping” when working on modified duties and hours.
45 Dr Jensen re-examined the plaintiff on 17 April 2007, at which time she complained of pain across her low back which radiated into both buttocks, but not to her leg. She also complained that there can be numbness in the same distribution if she is sitting or lying for too long. At most times, the pain level is eight out of ten, although at best it can be five out of ten. She reported a sitting tolerance of fifteen to twenty minutes and a standing tolerance of five minutes, because of her back pain. Furthermore, she could only walk for about thirty minutes.
46 At that time, her only treatment was Panadeine Forte, which she was taking approximately two to four per day.
47 Examination revealed that the plaintiff had put on 13 kilograms of weight since her last examination and Dr Jensen noted that there were “quite marked signs of abnormal illness behaviour, including lots of oohing and aahing” during the examination. Dr Jensen also examined the left shoulder.
48 In his report dated 26 April 2007, Dr Jensen states, in part:
“In my opinion she continues to suffer chronic mechanical lumbosacral spine dysfunction but without any evidence of radiculopathy. There have been some reports in the medical literature suggesting there is a correlation between annular tears as seen on MRI scan and discogenic back pain. This fact, combined with the location and nature of the pain suggests that the source of her symptoms is most likely the L5-S1 disc.
She also has some mechanical left shoulder dysfunction on a background of supraspinatus tendinopathy, and some mild impingement.
However I would agree with the reports of Dr Boothby, Davison and Mr Russell, as outlined in your attached correspondence that there now seen to be quite significant psychosocial factors at play in this lady’s pain presentation. Also she has gone on to be significantly deconditioned and has quite significant weight gain which would be further compromising her level of physical functioning.
The prognosis of her condition is poor.
The medical literature is rife with reports that a combination of her physical injuries and a significant psychosocial overlay, particularly in a third party compensation setting, results in poor outcome.
In terms of her employability, I believe she does have a work capacity for suitable employment, that being similar to that she was undertaking at the time of her retirement with the added proviso that any overreaching, reaching behind or reaching above the shoulder height with her left shoulder should be minimised.”[42]
[42]See Exhibit 2 at page 68 DCB
49 Seemingly, she was referred by Dr Fitzgerald back to Dr Jensen some time in March 2008. At that time, she complained of getting numbness down the anterior thigh and shins and associated leg weakness after ten to fifteen minutes. Dr Jensen noted that this is suggestive of some spinal stenosis, particularly as there is no clinical evidence of any arterial insufficiency. However, Dr Jensen did note that there was no neurological deficit or cauda equinae symptoms. Furthermore, although the plaintiff continued to rate her pain level as high, this was also coupled with a high level of perceived disability and high psychosocial distress factors.
50 Ultimately, Dr Jensen considered that her condition was probably best treated by appropriate medication, including an anti-depressant.
(d) The Evidence of the Treating Surgeon, Mr Page
51 Mr Richard Page was called on behalf of the plaintiff. He described himself as an orthopaedic surgeon specialising in shoulder, upper limb and hand surgery. Mr Page treated the plaintiff in relation to her left shoulder injury.
52 Mr Page adopted various observations and opinions set out in a series of reports prepared by him dated 31 August 2007,[43] 7 January 2008,[44] 27 February 2008,[45] 15 August 2008,[46] 3 March 2009,[47] 24 March 2009,[48] 29 April 2009[49] and 8 June 2011.[50]
[43]See Exhibit A at page 771 PCB
[44]See Exhibit A at page 775 PCB
[45]See Exhibit A at page 781 PCB
[46]See Exhibit A at page 783 PCB
[47]See Exhibit A at page 790 PCB
[48]See Exhibit A at page 793 PCB
[49]See Exhibit A at page 798 PCB
[50]See Exhibit D at page 89A PCB
53 The plaintiff initially consulted Mr Page on 31 August 2007 on referral from her general practitioner, Dr S Fitzgerald. At that time, the plaintiff described left pain “coming on” in September 2006 and in particular, an episode when stitching the carpet and pulling the carpet off the loom. On examination, Mr Page found tenderness around the acromion, together with a painful arc of movement. The plaintiff had positive signs for impingement and the ultrasound of the left shoulder dated 24 October 2006 revealed a small partial thickness tear of the supraspinatus tendon with associated impingement.
54 Mr Page recommended that the plaintiff undergo a left shoulder subacromial decompression and such was undertaken at the Geelong Private Hospital on 20 December 2007. At surgery, the plaintiff was noted to have moderate inflammation in the shoulder joint which was otherwise intact. He also noted there was a thickened bursa within the subacromial space and impingement anteriorly with associated anterior acromial spur and some fraying of supraspinatus.
55 Mr Page notes that the plaintiff underwent a standard subacromial decompression, including bursectomy and ligament release, together with debridement of the bursal side of the supraspinatus, and the AC joint was left intact.
56 When initially reviewed after surgery on 8 January 2008, the plaintiff had minimal pain in her sling but experienced some swelling in the hand and altered sensation in her little finger. Her wounds had healed well and the plan was to wean her out of the sling and move to a progressive physiotherapy.
57 When reviewed on 27 February 2008, the plaintiff was improving steadily and had continued with physiotherapy and just started a light strengthening program. Mr Page noted she had a full range of motion of the shoulder and slightly painful arc in above shoulder position. He also noted her strength was coming along reasonably well.
58 At that time, Mr Page thought the plaintiff was “progressing” and, from a shoulder perspective, she was able to do light duties in about three weeks from that examination.
59 When reviewed on 30 August 2008, she continued to improve and there was some mild ache down her arm.
60 Mr Page did not re-examine the plaintiff until 3 March 2009, when she was re-referred by her general practitioner, Dr Fitzgerald. At that stage, she complained of an increasing painful arc which had been worse over the previous four months, together with pain on elevation, and had global non-diffuse shoulder pain. At that time, Mr Page commented that it was “hard to know specifically what the problem was” but she seemingly had some biceps and rotator cuff signs, as well as signs of AC joint irritability. This was superimposed on some non-specific features.
61 Mr Page referred the plaintiff for a further ultrasound of the rotator cuff, as well as subacromial injection and a bone scan to assess the AC joint.
62 On review on 24 March 2009, Mr Page notes that the bone scan on the left side showed some increased activity in the glenoid which may indicate some underlying degenerative changes in the glenohumeral joint, but the remainder of the shoulder and the AC joint were intact on that side.
63 Coincidentally, x-rays and CT scans indicated a lesion of the proximal humerus and the plaintiff was referred for further treatment in relation to that condition. Seemingly, a CT scan of her chest showed some small abnormality and she was referred to her local medical officer for referral to a respiratory physician.
64 On further review on 28 April 2009, Mr Page noted that the MRI scan recently undertaken demonstrated a partially delaminated tear that was incomplete in thickness. Her ultrasound showed recurrent minimal bursal impingement but the x-ray was unchanged. Her MRI scan showed tendinopathy with partial thickness delamination of the supraspinatus and mild degenerative changes in the AC joint only.
65 Ultimately, Mr Page expresses the opinion that the injury to the left shoulder was a partial thickness tear and impingement of the rotator cuff. He considers that the pathology and chronic pain prevented the plaintiff from returning to her previous duties involving the left shoulder. In particular, Mr Page states:
“The only work activities she would be able do would be of a non manual, nature of below shoulder level. Again, although I am not trained in assessment of reemployment, I would think, given her age, background and education and prior work experience, it would be difficult for her to change job type entirely. … .”[51]
[51]See Exhibit D at page 89F PCB
66 Under cross-examination, Mr Page accepted that his findings at surgery did not show any major pathology in the shoulder joint but there were findings of an impingement lesion in the subacromial space.
67 Mr Page also accepted that from about August 2008, the plaintiff was exhibiting some functional signs and that by March 2009, she was exhibiting a global shoulder pain. Mr Page noted that at that stage, the pain had become less specific and there were not the more specific signs of impingement in the shoulder for which she had undergone the previous surgery.
68 Mr Page, although accepting that the subsequent bone scan did show other lesions for which the plaintiff was referred to other specialists, such lesion had nothing to do with the left shoulder surgery. Furthermore, there were problems with the right shoulder and problems identified on her chest x-ray which needed her to be referred to a respiratory physician.
69 Mr Page also accepted that subsequent MRI scans of the left shoulder showed similar findings consistent with tendinopathy which had been noticed at arthroscopy some years previously. Mr Page in particular, considered such tests to exclude anything which he would consider clinically significant.
70 In particular, Mr Page gave the following evidence:
HIS HONOUR:
Q:“From what you found on an organic basis Doctor, both at the time of the original arthroscopy and indeed, based on the subsequent testing, the bone scans, the MRI, and the like are the degree of symptoms which she complaints of, are they consistent with the degree of organic condition you found, or do they surpass that?‑‑‑
A:Good question, Your Honour. I think that they certainly can be responsible to act as a stimulus to cause pain, and I - I don't think that would be in my mind in dispute, but there is - there is a pathology - abnormal tendon tear within the tendon that can cause pain. The - the crux of it the - the extent of that pain, and I - I guess the answer for - is for me, it's hard for me to measure that because I can't see it ‑ ‑ ‑
Q:Yes?---
A:But there is - there is a stimulus but the amount of pain that is - Mrs Kucek's suffering exceeds what I would normally expect for that level of stimulus which is why we've gone through this process of investigation, and treatment and finally recommending referral to a pain specialist.”[52]
[52]T 235, L23 – T 236, L11
71 Mr Page also expressed the opinion in cross-examination that her inability to go back to her pre-injury duties was a combination of the pathology demonstrated and the chronic pain which she complains of.
72 Mr Page was asked more specific questions about capacity for employment and the following evidence was given:
Q:“If it was just for the pathology, that is if we could magically take the chronic pain out of it ‑ ‑ ‑?---
A: Yes.
Q:- - - different concept, she would have some degree of employability, wouldn't she?‑‑‑
A:With that, just that pathology, yes, most probably in a different role, but in my experience patients who have been treated for this can engage in some work, altered or alternate duties. Not lifting below shoulder height, those sort of activities.
Q:The sort of things you were putting to AMP in that letter back in August of 2008, and just to remind you her symptoms would be manageable with some alteration in the type of activities she performed at work?‑‑‑
A:That would be generally true.”
HIS HONOUR:
Q:“The change, Mr Page, as I understand the thrust of what you're saying, when you wrote that letter in August 2008 you had knowledge of the pathology she’d undergone at the arthroscopy, and as I think you've agreed with Mr Miles from an organic pathological point of view other than that slight tendonitis in the other tendon nothing much has changed over the ensuing years, is that correct?‑‑‑
A:Yes, Your Honour.
Q:Save perhaps for the development of what's been referred to as the chronic pain issue, is that right?‑‑‑
A:That is. The only other thing I would add, Your Honour, is that it's also recognised in patients who have got disability over a long period. It then starts to become, if you like, an irreversible level of deconditioning.”[53]
[53]T 237, L13 – T 238, L16
73 Although Mr Page claimed he had no particular experience in the re-employment of people, his general view was that the plaintiff may well be able to cope with work as a library assistant, at least the lighter aspects of it, work as a car park attendant, certain jobs as a product examiner where there was load restriction as to what she would have to handle and perhaps that as a packer depending on the type of work that she would actually have to do. In particular, the following evidence was given:
HIS HONOUR:
Q:“Just Doctor, by saying that I just want to get it clear in my mind, it hasn't been put to you, but say someone was working at bench level, as I understand the thrust of your evidence in relation to her left shoulder she should avoid work like lifting, or working with her arm above shoulder height. If she was working at bench level would she have the use of her left arm, and hand in particular say putting in parts together at that level? Would there be restriction at that stage, or it is that it has to be above shoulder?‑‑‑
A:No Your Honour, the main restriction is at waist level, or chest level if you like would be not to do things at an intensity where you're repeating the same task, you know, a hundred times a minute or something that would be - would generally cause symptoms and problems. Similarly, you know, the peak loads, in other words we would in this setting generally recommend loads left - maximum loads less than a couple of kilograms.
Q:So very light work involving the hands - left and right hands maybe okay, but you'd have to watch for repetition and indeed ‑ ‑ ‑?‑‑‑
A:Yes ‑ ‑ ‑
Q:- - - loads, yes ‑ ‑ ‑?‑‑‑
A:Yes, Your Honour.”[54]
[54]T 242, L11 – T 243, L2
74 Under re-examination, Mr Page accepted that the deconditioning process to which he had referred in the circumstances of the plaintiff would probably mean that full-time work is unlikely.
75 Later in his evidence, Mr Page stated that given the period of deconditioning, the plaintiff most definitely could start on a lighter scale of less hours and it would be a matter of seeing how she tolerates the working hours.
(e) The Evidence of the Physiotherapist, Mr Adam Walters
76 The plaintiff relies on the reports of the physiotherapist, Mr Adam Walters, dated 6 February 2003,[55] 29 December 2003,[56] 19 February 2004,[57] 23 April 2004,[58] 15 February 2005[59] and 25 July 2005.[60]
[55]See Exhibit A at page 81 PCB
[56]See Exhibit A at page 79 PCB
[57]See Exhibit A at page 77 PCB
[58]See Exhibit A at page 75 PCB
[59]See Exhibit A at page 73 PCB
[60]See Exhibit A at page 71 PCB
77 The plaintiff was initially assessed by Mr Walters on 29 December 2003 in respect of back pain. Mr Walters noted that a CT scan at and around that time and pelvic ultrasound failed to reveal any significant abnormality and home-based and gymnasium programs were organised for her. She continued to attend Mr Walters at various times in 2004 and 2005.
78 In February 2005, Mr Walters noted that inorganic testing revealed a positive response to simulated rotation of the lumbar spine with some pain behaviour observed through palpatory assessment and when testing active range of lumbar movement. Mr Walters also notes that for a variety of reasons the plaintiff has not been able to complete sufficient amounts of her gymnasium-based rehabilitation program to see any significant subjective and objective improvements. In his last report, Mr Walters was recommending further gymnasium treatment.
Medico-Legal Reports
79 The solicitors for the plaintiff arranged for her to be medico-legally examined by the following doctors:
(a) The general surgeon, Mr Kenneth Brearley, on 23 February 2011.[61] Mr Brearley also supplied supplementary reports dated 4 April 2011[62] and on 12 May 2011;[63]
[61]See report of same date - Exhibit A at page 90 PCB
[62]See Exhibit A at page 95(a) PCB
[63]See Exhibit D at page 95 PCB
(b) The vascular and general surgeon, Professor Kenneth Myers, on 23 February 2011.[64] Professor Myers provided supplementary reports dated 5 April 2011[65] and 16 May 2011.[66]
[64]See report dated 28 February 2011, Exhibit D at page 104B PCB
[65]See Exhibit D at page 104J PCB
[66]See Exhibit D at page 104K PCB
(c) The psychiatrist, Dr Albert Kaplan, on 15 March 2011.[67] Dr Kaplan provided a further report dated 4 April 2011;[68]
(d) The occupational physician, Dr Alan Sutcliffe, on 16 February 2011.[69]
[67]See report dated 21 March 2011 – Exhibit A at page 96 PCB
[68]See Exhibit D at page 104A PCB
[69]See report dated 20 February 2011 – Exhibit D at page 104M PCB
80 When examined by Mr Brearley, the plaintiff gave a history that on 30 September 2003, she was performing her “normal work” when she felt severe pain in the lower back. Such pain recurred a few weeks later. Furthermore, the plaintiff informed Mr Brearley that on 23 August 2006, she suffered injury to her left shoulder as a result of pulling mats off a table which were stacked to a considerable height and, in particular, above shoulder height.
81 The plaintiff was complaining of constant pain in her left arm which worsened when she attempted lifting or repetitive use of the arm. She also complained of constant but variable pain in the low back, made worse by bending, stooping and lifting, long standing and long walking. Long sitting also worsens her back pain.
82 On examination, Mr Brearley found restricted movement of her low back and the left shoulder. He had available some radiology, including the ultrasound of the left shoulder dated 24 October 2006 and the CT scan of the low back dated 12 January 2004.
83 Mr Brearley diagnosed a tear of a supraspinatus portion of the rotator cuff with the development of chronic subacromial bursitis with ongoing pain and stiffness of the shoulder and limitation of use of the left arm. Furthermore, he diagnosed mechanical lumbar back pain due to musculoligamentous strain of the lumbar spine involving the supporting structures, namely the lumbar discs and interspinous ligament musculature. Although noting her complaint of left leg pain, which he thought may be due to irritation of the fifth lumbar nerve root, he found no radiculopathy on clinical examination.
84 Mr Brearley was also of the opinion that her employment with the first defendant caused such injuries and that she had also developed some anxiety and probably depression as a result of the ongoing chronic pain.
85 Mr Brearley considered the plaintiff had no current work capacity and that such loss of earning capacity was the result of her physical injuries to her back and left shoulder.
86 Later, in response to a request from the solicitors for the plaintiff, Mr Brearley considered that the left shoulder injury of the plaintiff prevented her doing her normal work or any other manual labour. Furthermore, Mr Brearley considered that the lumbar spine injury suffered by the plaintiff caused her to be unable to do any manual labour or any work which involves bending, stooping, twisting or turning. He considered such limitations would persist for the foreseeable future.
87 Mr Brearley also disagreed with the opinion of Mr Brendan Dooley expressed in a report dated 28 February 2011 (see later in this judgment). In particular, Mr Brearley asserted that he was unable to find any functional component to the plaintiff’s symptoms nor detect any exaggeration of her symptoms and disability. Furthermore, he disagreed with Mr Dooley as to the types of work Mr Dooley considered the plaintiff was fit to perform.
88 When examined by Professor Myers, the plaintiff gave a history that she first injured her low back in September 2003 due to the repetitive strains of making up sample books and packing and unloading various materials. Furthermore, she gave a history that in 2006, she injured her left shoulder as a result of pulling a piece of carpet from behind when she developed severe pain.
89 At the time of examination, the plaintiff described her low-back pain to be variable but it can be “severe” and is there most of the time. Furthermore, she complained that her left shoulder pain is the “worst problem now” and this causes restriction of movements in her left arm.
90 Professor Myers diagnosed aggravation of pre-existing degenerative intervertebral disc disease of the lumbar spine and a left rotator cuff injury. He was of the opinion that such injuries occurred as a result of her employment with the first defendant.
91 Professor Myers was of the opinion that she had no realistic expectation of gaining any form of employment in the future as a result of her work-related “injuries”.
92 In a short supplementary report, Professor Myers states that there is a “total loss of earning capacity” in relation to the left shoulder injury suffered by the plaintiff independent of the back injury. Furthermore, Professor Myers considers that there is a “complete incapacity for a return to work” as a result of the low-back injury alone. Furthermore, although he accepts that the plaintiff has developed depression with an Adjustment Disorder, such loss of earning capacity is entirely “physical in nature” and has no psychological component.
93 When examined by Dr Sutcliffe on 16 February 2011, the plaintiff gave a history of suffering low-back pain on 30 July 2003 when she was performing duties and making up the sample books and lifting onto pallets. Furthermore, she gave a history that on 23 August 2006, she developed pain in her left shoulder when she was pulling mats to sew.
94 At the time of the examination, she complained of constant pain in the left shoulder and also pain in the left arm, causing her to wake frequently at night. She also has ongoing back pain which wakes her at night, with such pain being constant of variable intensity.
95 After examination and viewing some of the radiology, Dr Sutcliffe was of the opinion:
(a) that the plaintiff sustained onset of disc derangement at L5-S1 level as a result of the lifting incident in her employment;
(b) a partial thickness tear of the supraspinatus with subacromial/subdeltoid bursitis and impingement.
96 Both these conditions have given rise to ongoing constant symptoms of pain and restriction of movement of both the low back and left shoulder. Dr Sutcliffe considered that she had findings consistent with radiculopathy in the left leg consistent with left S1 involvement with no supporting MRI changes.
97 Dr Sutcliffe also believed that the plaintiff had developed depression as a result of an Adjustment Disorder related to her pain and disability, and now requires psychiatric treatment.
98 She has no capacity for her pre-injury duties, and that taking into account her age, background, place of residence, training and work experience, Dr Sutcliffe was of the opinion that the plaintiff had no capacity for employment as a result of the left shoulder injury.
99 Furthermore, Dr Sutcliffe was of the opinion that the plaintiff had a limited capacity for employment as a result of the low-back injury and ultimately came to the view that the plaintiff has no capacity for general employment, taking into account her age, background, training, education and past work experience.
100 Also, Dr Sutcliffe was of the opinion that the “very substantial” pain and suffering is entirely related to physical contribution and that there is no psychological component. In particular, her loss of earning capacity is entirely physical in nature and has no psychological component.
101 When examined by Dr Kaplan on 15 March 2011, the plaintiff gave a history that she injured her low back on 30 September 2003 as a result of lifting a pallet. Furthermore, on 23 August 2006, she injured her left shoulder at work.
102 After obtaining a history and making a mental status examination, Dr Kaplan diagnosed the plaintiff to be suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood, the symptoms including sleep and appetite disturbance with a substantial weight gain which has further undermined her self-esteem. He considered that her psychiatric prognosis would be dependent on the outcome of her physical conditions.
103 He considered that based on the available medical reports, the left shoulder injury suffered by the plaintiff is an organically-based condition and, accordingly, her pain and loss of earning capacity in relation to that injury is related to organic factors. However, after reviewing a variety of medical reports obtained by the solicitors for the defendant, Dr Kaplan notes that it may well be that the plaintiff’s diagnosis with regard to her back injury would be that of a Pain Disorder associated with both psychological factors and a general medical condition. He considered the prognosis of such a condition is generally unfavourable.
104 It is convenient to also refer to the medico-legal examinations arranged by the solicitors for the defendants. Those solicitors arranged for the plaintiff to be examined by:
(a) The occupational physician, Dr Gary Davison, on 13 December 2004,[70] 20 November 2006[71] and on 9 June 2011;[72]
[70]See report dated 4 January 2005 – Exhibit 2 at page 16 DCB
[71]See report dated 17 January 2007 – Exhibit 2 at page 20 DCB
[72]See report of same date – Exhibit 6 at page 23(a) DCB
(b) The occupational physician, Dr Graham Boothby, on 15 February 2005[73] and on 29 August 2005;[74]
[73]See report dated 17 February 2005 – Exhibit 2 at page 24 DCB
[74]See report of same date – Exhibit 2 at page 32 DCB
(c) The general and trauma surgeon, Mr T J Russell, on or about 27 November 2006.[75] Mr Russell also supplied a supplementary report dated 30 November 2006;[76]
[75]See report of same date – Exhibit 2 at page 37 DCB
[76]See Exhibit 2 at page 43 DCB
(d) The consultant in occupational medicine, Dr Ralph Poppenbeek, on 5 June 2007;[77]
[77]See report dated 12 June 2007 – Exhibit 2 at page 44 DCB
(e) The orthopaedic surgeon, Mr Michael Shannon, on 17 July 2009;[78]
[78]See report dated 21 July 2009 – Exhibit 2 at page 48 DCB
(f) The orthopaedic surgeon, Mr Brendan J Dooley, on 2 December 2009[79] and on 28 February 2011;[80]
(g) The orthopaedic surgeon, Mr Michael J Dooley, on 23 June 2011.[81]
[79]See report dated 3 December 2009 – Exhibit 2 at page 55 DCB
[80]See report of same date – Exhibit 2 at page 61 DCB
[81]See report dated 19 July 2011 – Exhibit 6 at page 70(a) DCB
105 When initially seen by Dr Davison in December 2004, the plaintiff gave a history that she injured her low back at work on 30 September 2003 when she was moving a wooden pallet. At the time of examination, she complained of the presence of constant mild pain in the low back which she described as “irritating”, which can become sharp or even severe with the wrong movement.
106 Dr Davison noted that, on examination, the plaintiff was “co-operative” but “injury-focussed”, who exhibited pain behaviours during the examination process. Dr Davison had access to a CT scan of the lumbar spine dated 12 January 2004 which reported no abnormality of significance.
107 Dr Davison was of the opinion that the plaintiff had developed a Chronic Pain Syndrome, in that the cause of her chronic low-back pain was not clinically evident. He considered that most probably she suffered a low-back strain at work when attempting to shift the pallet, but any contribution from employment had well and truly ceased. He noted that the CT scan of the lumbar spine failed to show any evidence of any significant structural abnormality. In particular, he considered her persistent symptoms related to psychosocial factors, including underlying illness belief with a high fear avoidance factor.
108 Dr Davison considered the plaintiff fit to undertake full time suitable duties subject to avoiding heavy manual handling greater than 5 kilograms continuously or greater than 10 kilograms occasionally at bench height, the avoidance of frequent and repetitive bending or twisting and the avoidance of prolonged standing.
109 When reviewed on 20 November 2006, Dr Davison had available the MRI scan of the low back dated 5 October 2005 which noted the minor central annular tear within the posterior disc margin of L5.
110 On examination, Dr Davison again found evidence of illness behaviour. He again confirmed his diagnosis as a Chronic Pain Syndrome with a significant non-organic component. Dr Davison was of the opinion that the persistence of symptoms relate to psychosocial factors and any contribution from employment with the first defendant had ceased.
111 When last assessed on 9 June 2011, the plaintiff gave a history that her left shoulder started aching without obvious cause but in the course performing the sewing of large mats which were stacked on a pallet.
112 On examination, Dr Davison notes that the plaintiff was “injury-focussed” with moderate pain behaviours, as evidenced by vocalisation, grimacing and clutching of affected areas.
(a) Some General Comments
154 The plaintiff is a fifty-three year old married woman who was born in Croatia and migrated to Australia with her parents in 1970.
155 She had limited education to Year 9 in Australia and thereafter, has been involved in unskilled manual-type work, although on leaving school, she did complete a short receptionist course through a TAFE organisation.
156 In 1993, she commenced employment with the first defendant in the “sample department” and remained employed with the first defendant until 28 September 2006 when her modified duties were withdrawn. She has not been gainfully employed since that date.
157 The plaintiff was extensively and well cross-examined by counsel for the defendants. After listening to her evidence and observing her demeanour, I have come to the view that the plaintiff was essentially a witness of credit who was attempting to give honest answers to the questions put to her. At no time did I obtain the impression that the plaintiff was seeking to consciously deceive the Court and indeed, on many occasions, she freely accepted propositions put to her by counsel for the defendants. However, throughout her evidence, the plaintiff was injury and pain-focussed to a large extent.
158 Counsel for the defendants submitted that on occasion the plaintiff was evasive and indeed, the video taken on 4 August 2010 suggested that the plaintiff could sit in one position for far longer than she had suggested in her evidence.[88]
[88]Such submission was based on the actual video at the time the plaintiff was seen seated and also by inference that although the plaintiff was not viewed over the whole period, each time a sighting was made she was seated in the same position.
159 I reject the submission that the plaintiff was evasive – as I have already indicated, I found the plaintiff straightforward in her evidence and who had a reasonably good memory of the events leading up to her cessation of employment. I do accept that the video film would suggest that the plaintiff had a capacity to sit longer than she initially stated, but I do note that the plaintiff made it plain that her ability to sit varied depending on the state of her back.
160 I also formed the view that the plaintiff, as she stated, did enjoy her job with the first defendant very much. I accept that she did not want to be put off in September 2006 and indeed, more importantly, I formed the view that the plaintiff was prepared to “soldier on” even when the job offer was not strictly complied with in terms of her being able to work on a self-paced basis, the number of items she had to sew, and any lifting requirements. Furthermore, I gained the impression that the plaintiff was prepared to “downplay” any complaints in relation to her left shoulder injury as she did not want to put her employment in jeopardy, bearing in mind that she was already performing alternative duties because of her low-back injury. It must be remembered that the plaintiff had demonstrated a good work record with the first defendant, having commenced in 1993.
(b) The Low-Back Injury
161 After a consideration of all of the evidence, I do find that the plaintiff suffered a low-back injury on or about 30 September 2003 during the course of her employment with the first defendant. Indeed, there appears to be little dispute that an incident did occur, most probably involving the manoeuvring of a pallet. Although not completely clear on the evidence, the plaintiff was off work for either a number of days or maybe up to a week or so, after which she returned on alternative duties and remained on those duties until her cessation of employment.
162 There is a wide spectrum of views as to the nature and extent of such low-back injury.
163 It is to be noted that a CT scan and x-ray of the lumbar spine dated 12 February 2004 reported “no abnormality of significance is seen”. Furthermore, an MRI scan of the lumbar spine undertaken on 5 October 2005 revealed no focal disc protrusion or nerve root compression. However, it was reported that there was a minor central annular tear within the posterior disc margin of L5.
164 I also note that over the period from the advent of the low-back injury until her cessation of employment, there is not much medical evidence as to how the plaintiff was coping during that period. In particular, the treating general practitioner, Dr Fitzgerald, does note that the plaintiff was treated for her back injuries during the course of such employment and indeed, during that period of time, he was giving ongoing certificates for her alternative duties.
165 The plaintiff asserts that she was losing two to three days a month as a result of her back condition. There is some support for the plaintiff taking time off work during that period. I refer to the affidavit of Robert McPhail sworn on 9 June 2010, wherein he declares a statement made by him on 21 November 2006 is true and correct. Part of that statement reads:
“Occasionally Georgina would mention back soreness and have some time off work.”
166 I also note that Mr Jensen commenced to treat the plaintiff for her back condition on 4 October 2005 and such treatment involved various injections, physiotherapy and gymnasium courses. Throughout 2003 and 2004, the plaintiff was having physiotherapy on and off.
167 After a consideration of all of the evidence, I find that the plaintiff has suffered a low-back injury, the nature of which is an aggravation of pre-existing degenerative changes. I reject the evidence of those doctors who opine that any low-back injury suffered by the plaintiff in September 2003 was short-lived and that her ongoing symptomology in that area can be explained by some type of Pain Syndrome.
168 I have come to such view for the following reasons:
(a) Dr Fitzgerald indicates that he accepts the diagnosis of disc-related mechanical back pain for which analgesia, physical therapies and nerve blocks by the spinal specialist were required;
(b) Dr Jensen was of the opinion that the plaintiff was suffering from “chronic somatic lumbosacral spine dysfunction” and explained the term “somatic” to mean pain coming from one or more of the physical structures related to the spinal column rather than a psychological origin. Furthermore, he later refers to mechanical lumbosacral spine dysfunction, and given the findings of the MRI scan, believes that the most likely source of her symptoms are at the L5-S1 disc where there are some annular tears;
(c) The orthopaedic surgeons, Mr Brendan Dooley, Mr M Shannon and Mr Michael Dooley, all accept that the incident in 2003 aggravated such pre-existing degenerative changes, giving rise to some restriction and pain;
169 Notwithstanding the foregoing, I also accept the evidence from those doctors, and indeed other doctors, that the plaintiff had a significant “functional component”, “psychological reaction” to her physical condition, “significant psychosocial factors” and an “emotional response” which has caused an exaggeration of symptoms and disability. I reject the evidence of Mr Brearley and Dr Sutcliffe when they assert that the plaintiff did not exhibit any symptoms of emotional or functional disturbance.
170 The critical issue becomes as to whether or not any organic consequences can be identified in relation to the low-back injury which can satisfy the narrative test.
171 I refer to the Court of Appeal decision of Jayatilake v Toyota Motor Corp Australia Limited[89] which dealt with the ramifications of s134AB(38)(h) of the Act to wit:
“‘… the psychological and psychiatric consequences of a physical injury’ are not to be taken into account in considering whether the applicant’s impairment is of that quality.”
[89][2008] VSCA 167
172 That decision followed on from Shock Records Pty Ltd v Jones,[90] Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis[91]and Zivolic v Hella Australia Pty Ltd.[92]
[90][2006] VSCA 180
[91][2007] VSCA 46
[92][2007] VSCA 142
173 In Jayatilake, Ashley AJ stated, in part:
“In point of principle, the question whether a worker has established that he or she has suffered serious injury should be decided by consideration of all the evidence. As I observed in Grech, re-expressing a long-established position —
‘The matters which the plaintiff needed to establish … were to be resolved upon all the evidence before the court. It was not a trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not provide answers to those questions.’
Section 134AB(38)(h) says nothing to suggest that the general approach is to be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required to establish, in order to satisfy the presently pertinent aspect of the definition of ‘serious injury’, that he or she suffers an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity. Like any other question for determination, it is a question to be resolved by consideration of all the evidence before the court. Stamboulakis should not be understood to mean that, upon the serious injury question, the principle that an issue is to be determined by reference to all admissible and relevant evidence is inapplicable.
If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the ‘quantum’ of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.
… .”[93]
[93]See Jayatilake (op cit) at paragraphs [17] – [19]
174 Ashley JA, in Jayatilake, also referred to the statements of Bell AJA in Shock Records at paragraph 20 and the statements of Redlich JA in Zivolic at paragraph 19 to be correct in principle (although Ashley JA did comment, in relation to the statement of Redlich JA, that it was not necessary that it be limited to the “medical evidence” when determining whether the physical consequences can be identified).
175 After a consideration of all of the evidence, and bearing in mind my findings as to the nature of the low-back injury, I accept the evidence of Mr Michael Dooley that there are physical consequences from an orthopaedic point of view in relation to her low back which involve difficulty with heavy physical activity and with activities that involve a lot of bending and/or lifting. Furthermore, a further physical consequence of such condition is that she would be incapable of performing heavier forms of work where bending, lifting or use of the low back is required. Mr Dooley also was of the opinion that from an orthopaedic point of view alone, he would expect the plaintiff to have intermittent low-back pain which would require low-back exercises, sensible modification of activity and weightloss.
176 After a consideration of all of the evidence, I have formed the view that such low-back injury has resulted in low-back impairment and that such impairment is likely to last for the foreseeable future.
(d) Pecuniary Loss Damages
177 It is convenient to deal with the issue of “pecuniary loss damages” initially. Section 134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of the hearing of the application, she “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:
(a) what the plaintiff is earning, whether in suitable employment or not, or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b) the income that the plaintiff was earning or is capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).
178 In both cases, the income is limited to gross income from personal exertion and is to be annualised.
179 Section 134AB(38)(e)(ii) requires of the plaintiff that she will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
180 The primary submission of counsel for the plaintiff was that the plaintiff was incapable of performing her pre-injury duties and any suitable employment. If she was capable of any work, it was only for a small number of hours.
181 Given that the date of the back injury was in September 2003 and the plaintiff continued working until September 2006, the parties agree that her earnings as at September 2006 were $29,892.00 gross per year. Several comments should be made:
(a) Consistent with the evidence of the plaintiff, I accept that she was performing realistic and meaningful work over the period from 2003 to 2006, over which time she was working full hours and had appropriate pay increases;
(b) Counsel for the plaintiff submitted that the three years should extend from when she ceased work in 2006 on the basis that there had been aggravation of her back injury over the period from its advent in 2003, up to her cessation of employment in 2006. I rejected such submission, as there was no evidence to suggest that there had been aggravation over that period of time. Indeed, the whole point of performing such work over that period of time was to avoid stress to the back.
182 Accordingly, I find that the “without injury earnings” in relation to the low-back injury is $29,892.00, of which sixty per cent is $17,935.20. Such sum translates to a weekly sum of $344.90 per week.
183 After a consideration of all of the evidence, I do find that the plaintiff is capable of suitable employment. In this respect, I again accept the views of Mr Michael Dooley that, from an orthopaedic point of view, the plaintiff has a capacity, insofar as her low back is concerned, to perform a variety of light work jobs, and in particular, has a capacity to work as a ticket sales person, library assistant, car park attendant or product examiner. It is to be noted that the plaintiff was capable of full-time alternative duties from the occurrence of her low-back injury in September 2003 to the cessation of her employment in September 2006. There is no suggestion in the evidence that the plaintiff’s back has deteriorated in an organic sense since the cessation of her employment.
184 I refer to the affidavit of Suzanne Margaret Squire sworn on 15 June 2011 which set out, amongst other things, various pay rates for such employments. In particular, the average full-time weekly earning of a ticket collector is $900.00, $700.00 for a library assistant, $900.00 for a car park attendant and $980.00 for a product examiner. Even if one allowed the plaintiff to have a capacity of only twenty hours per week, such earnings would amount to, respectively, $458.00 gross per week, $448.00 gross per week, $458.00 gross per week and $498.00 gross per week.
185 After a consideration of all of the evidence, I consider the plaintiff has a capacity to work at least twenty hours a week in such employment. I refer to twenty hours, as that is one of the parameters set out by Mr Brendan Dooley in his evidence, but overall, consider that the plaintiff would be capable of working at least twenty hours a week in such employments.
186 Accordingly, I find that the plaintiff has not discharged her onus in establishing any entitlement of bringing a claim for pecuniary loss damages in respect of her low-back injury. Furthermore, I am also of the opinion that the plaintiff has failed to discharge her onus pursuant to s134AB(38)(g) of the Act, in that the plaintiff has not been looking for work, has not applied for any jobs, has not looked in the paper or made enquiries of employment agencies, and has not given thought to any retraining or rehabilitation to lead to alternative forms of work.
(e) Pain and Suffering Damages
187 After a consideration of all of the evidence, I am satisfied that the plaintiff has discharged her onus in relation to establishing that her “pain and suffering” consequences, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”. I have come to such a view for the following reasons:
(a) On my findings, the plaintiff suffered an aggravation of pre-existing degenerative changes as a result of her work incident in September 2003 and has continued to suffer symptoms from that condition to date and will continue to suffer symptoms from that condition into the foreseeable future;
(b) The nature of that injury does restrict her to the type of work in which she can engage and arguably the number of hours that she can work. For someone with limited educational and industrial background, I consider such a consequence to be of some significance;
(c) She will experience, according to Mr Michael Dooley, intermittent pain in the back and restriction of movement;
(d) I accept the evidence of the plaintiff that she has difficulties performing her housework, gardening activities, socialising with her grandchildren and dancing, all of which are affected by her low-back symptoms. Although I accept that the left shoulder symptoms (to which I will refer to shortly) may impact on these activities also, I do find on all of the evidence that the low-back symptoms as found by Mr Michael Dooley, would impact on these types of activities as described by the plaintiff.[94]
[94]In general terms, I also refer to Dressing v Porter [2006] VSCA 215, and in particular, at paragraph [47]
188 Accordingly, I grant leave to the plaintiff to bring common law proceedings in relation to her low-back injury suffered on 30 September 2003.
(f) The Left Shoulder Injury
189 The position of the first defendant is that given the nature of the activities undertaken by the plaintiff, it is unlikely, bordering on impossible, for her to have suffered a left shoulder injury as alleged by her. Furthermore, the first defendant notes that the plaintiff did not receive any treatment for such condition until about 20 October 2006, some time after she had ceased work.
190 Against that, the plaintiff asserts that the precise terms of her return to work offers were not always complied with and she was under pressure to perform work. Furthermore, as already stated earlier in this judgment, I consider that the plaintiff was conscious of not making too many complaints about any symptoms given that her job may well have been in jeopardy.
191 I do refer to the affidavit of Cheryl Caffey sworn on 18 June 2010, wherein she declares a statement made by her on 14 November 2006 is true and correct. Part of that statements reads:
“On 24 August 2006 Georgina stated to me, ‘Can I do something lighter’? She said that her shoulder was sore further and that she had done a lot of drapes that particular week. Sewing drapes is part of her duties which she has done for 6 hours per day.”
192 It is common ground that an Incident Report record was created which stated:
“Injury without medical treatment.”
193 Soon after the complaint made about the shoulder pain, her duties were again modified.
194 After a consideration of all of the evidence, I do find it more likely than not that the plaintiff did suffer a left shoulder injury arising out of or in the course of her employment on or about 23 August 2006. Although noting that the plaintiff continued to work for another few weeks after the onset of such pain, and did not receive formal treatment until late October 2006, more reflects, I believe, the plaintiff desiring to stay on with her job with the hope that the shoulder pain would dissipate.
195 In relation to the left shoulder injury, I put much weight on the evidence of the treating orthopaedic surgeon, Mr Page, who gave evidence to the Court. I found his evidence balanced and compelling.
196 Mr Page initially consulted with the plaintiff on 31 August 2007, at which time he found the plaintiff to have tenderness around the acromion, a painful arc movement and positive signs for impingement. He noted that the ultrasound of the left shoulder dated 24 October 2006 revealed a small partial thickness tear of the supraspinatus tendon with associated impingement.
197 Mr Page performed a left shoulder subacromial decompression on 20 December 2007. At surgery, the plaintiff was known to have moderate inflammation of the shoulder joint which was otherwise intact, and Mr Page noted there was a thickened bursa within the subacromial space and impingement anteriorly with associated anterior acromial spur and some fraying of the supraspinatus.
198 Over time, Mr Page formed the view that the plaintiff developed a degree of chronic pain in excess of the pathology. However, he was of the opinion that the injury to the left shoulder was a partial thickness tear and impingement of the rotator cuff. In his evidence, he considers such a condition can be a stimulus to cause pain, but considered that the degree of pain suffered by the plaintiff exceeds what he would “normally expect for that level of stimulus”.
199 Leaving aside the chronic pain element, Mr Page accepted in general terms that the plaintiff could engage in some type of altered or alternative duties which did not only involve the left arm. He did note that after this period of time, the plaintiff would have undergone a deconditioning process which will probably mean that full-time work is unlikely. He did accept in general that the plaintiff may well be able to cope with work as a library assistant (at least the lighter aspects of it), work as a car park attendant and/or a product examiner, subject to the load which she had to handle.
200 The opinions expressed by Mr Page are consistent with the opinions of the other orthopaedic surgeons, including Mr Shannon and Mr Michael Dooley. In particular, I note that Mr Dooley commented that, from an orthopaedic point of view alone, he would expect the plaintiff to have intermittent left shoulder girdle pain, especially if there is a lot of physical activity and with a lot of activity at and above shoulder level. Furthermore, he would expect the plaintiff to note intermittent nocturnal shoulder pain. Consistent with such views, he considered that the plaintiff would have difficulty lifting, or activity at or above shoulder level.
201 Although many of the doctors comment that the plaintiff does have an emotional response to her shoulder injury, I do find, based on the principles referred to earlier in this judgment, that the plaintiff has suffered identifiable organic symptoms from her left shoulder injury.
202 Furthermore, given the period of time which has passed, and the opinions particularly of Mr Page and Mr Michael Dooley, I find that such left shoulder injury has resulted in impairment which is likely to last for the foreseeable future.
(g) Loss of Earning Consequences
203 I refer to my earlier analysis of what is required for the plaintiff to establish leave to bring a common law claim for pecuniary loss damages. Given my finding that injury occurred on or about 23 August 2006, the plaintiff is entitled to utilise the subsequent three years to establish her “without injury earnings”.
204 Based on the material available to the parties, the parties agree that the “without injury earnings” in relation to the left shoulder injury is $34,414.04. Sixty per cent of that sum is $20,648.42, which translates to $397.85 gross per week.
205 Consistent with the general evidence of Mr Page and the more particular evidence of Mr Michael Dooley (and that of Mr Brendan Dooley), I do find that the plaintiff is capable of performing suitable employment such as I found in relation to her low-back injury. Bearing in mind the comments of Mr Page about her deconditioning, I find that the plaintiff is probably capable of working twenty hours per week in the jobs already referred to. Each of those jobs, working twenty hours per week, generates more than $397.85 per week.
206 Accordingly, I find the plaintiff has not discharged her onus in establishing an entitlement of bringing a claim for pecuniary loss damages in respect of her left shoulder injury. Furthermore, I am also of the opinion that the plaintiff has failed to discharge her onus pursuant to s134AB(38)(g) of the Act, in that the plaintiff has not been looking for work, has not applied for any jobs, has not looked in the paper or made enquiries of employment agencies, and has not given thought to any retraining or rehabilitation to lead to alternative forms of work.
(h) Pain and Suffering Damages
207 Having found that the plaintiff has suffered a compensable left shoulder injury resulting in some permanent impairment with consequences, the issue becomes whether such consequences satisfy the narrative test. I accept the opinion of Mr Michael Dooley when he describes that he would expect the plaintiff to suffer intermittent left shoulder girdle pain, especially with a lot of physical activity and with a lot of activity at and above shoulder level. Furthermore, and in particular, consistent with the evidence of the plaintiff, he would also expect intermittent nocturnal shoulder pain which according to the plaintiff has kept her awake at night.
208 Furthermore, again, bearing in mind her educational and industrial background, I consider it a consequence of some importance that the plaintiff does not have an unlimited ability to perform manual work as she has done in the past. I am also conscious, bearing in mind the opinion of Mr Michael Dooley, that such activities as playing with grandchildren, performing gardening work, and doing some activities around the house, would all be impacted on by her left shoulder condition.
209 In all the circumstances, I do find that the consequences to the plaintiff of the left shoulder injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least very considerable.
Conclusion
210 Accordingly, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages only in respect to her low-back injury suffered on or about 30 September 2003 and her left shoulder injury suffered by her on or about 23 August 2006.
211 I will hear the parties on the question of costs.
Annexure “A”
1 The plaintiff tendered the following material:
(a) Exhibit A
· Affidavits of the plaintiff sworn on 14 September 2009 and 20 March 2011 at pages 10 to 29 of the Plaintiff’s Court Book (“PCB”);
· Claim Form dated 9 September 1992 at page 44 PCB;
· Incident Report dated 22 June 1994 at page 45 PCB;
· Minor claim copy form dated 27 June 1994 at pages 46-47 PCB;
· accident/incident report/register of injuries dated 24 January 2001 at pages 48-49 PCB;
· Accident/incident report/register of injuries dated 22 March 2002 at page 53 PCB;
· Accident/incident report/register of injuries dated 30 September 2003 at page 54 PCB;
· WorkCover claim form dated 6 October 2003 at pages 55-57 PCB; accident/incident report/register of injuries dated 8 December 2003 at page 58 PCB;
· Accident/incident report/register of injuries dated 23 August 2006 at page 62 PCB;
· WorkCover Claim Form dated 30 October 2006 at pages 63-65 PCB;
· Employer claim report dated 2 November 2006 at pages 66-67 PCB;
· Radiological reports consisting of MRI of the lumbar spine dated 5 October 2005 at page 68 PCB; x-ray of the left shoulder dated 24 October 2006 at page 69 PCB and MRI of the left shoulder dated 21 March 2011 at page 69(b) PCB;
· Reports of Mr A Walter, physiotherapist, dated 6 February 2003, 29 December 2003, 19 February 2004, 23 April 2004, 15 February 2005 and 25 July 2005 found at pages 71-81 PCB;
· Medical reports of Dr S Jensen dated 8 March 2006, 22 November 2006 and 23 November 2006 found at pages 82-86 PCB;
· Medical reports of Dr S Fitzgerald, general practitioner, dated 22 November 2006 and 2 July 2010 at pages 87-89;
· Medical reports of Mr Kenneth Brearley, general surgeon, dated 23 February 2011 and 4 April 2011 at pages 90-95A PCB;
· Reports of Dr Albert Kaplan, psychiatrist, dated 21 March 2011 and 4 April 2011 at pages 96-104(l) PCB;
· Chiropractic treatment notification form dated 31 December 2003 at pages 522-523 PCB;
· Report from Craig Fagan, rehabilitation consultant, dated 21 November 2006 at page 645 PCB;
· File note dated 28 September 2006 at pages 666-667 PCB;
· Australian Industrial Relations Commission – certification of agreement dated 7 September 2004 at pages 680-697 PCB;
· Medical reports of Mr Page dated 3 September 2007, 31 August 2007, 7 January 2008, 8 January 2008, 7 February 2008, 15 August 2008, 3 March 2009, 24 March 2009 and 29 April 2009 at pages 770, 771, 775, 779, 781, 783, 784, 790, 793 and 798 PCB;
· Wage rates and classifications at pages 813-829 PCB;
(b)Exhibit B
·letter from Victorian Compensation Lawyers to Dr Helen Sutcliffe dated 24 March 2011;
·Fax document dated 6 April 2011 to Victorian Compensation Lawyers from Dr Sutcliffe enclosing a report dated 20 February 2011;
·Letter dated 12 April 2011;
·Letter dated 12 April 2011 to Messrs Wisewould Mahony Lawyers enclosing reports;
·Hard copy of a report from Dr Sutcliffe dated 20 February 2011 received some time after fax of 6 April 2011.
(c)Exhibit C
·Letter dated 25 March 2011 from Victorian Compensation Lawyers to Wisewould Mahony with fax heading.
(d)Exhibit D
·Further medical reports of Mr Page dated 8 June 2011 at page 89A-89Q PCB;
·Further report from Mr K Brearley dated 12 May 2011 at page 95B-95C PCB;
·Further report of Dr A Kaplan dated 4 April 2011 at page 104A PCB;
·Reports of Professor Kenneth Myers dated 28 February 2011, 5 April 2011 and 16 May 2011 at pages 104B-104L PCB;
·Report of Dr Helen Sutcliffe dated 20 February 2011 at pages 104M-104V PCB.
Exhibit E
·Extract of Godfrey Hirst’s Collective Agreement at pages 833-835 PCB.
2 The defendants tendered the following material:
(a) Exhibit 1
· Video footage of the plaintiff dated 4 August 2010.
(b) Exhibit 2
· Affidavits of Craig Herbert sworn 8 June 2010, affidavit of Robert McPhail sworn 9 June 2010 and affidavit of Cheryl Claffey sworn 18 June 2010, all found at pages 1-15 of the Defendants’ Court Book (“DCB”);
· Medical reports of Dr Gary Davison, occupational physician, dated 4 January 2005 and 17 January 2007 at pages 16-23 DCB;
· Medical reports of Dr Graham Boothby, occupational physician, dated 17 February 2005 and 29 August 2005 at pages 24-36 DCB;
· Medical reports of Mr TJ Russell, general and trauma surgeon, dated 27 November 2006 and 30 November 2006 at pages 37-43 DCB;
· Medical report of Dr Ralph Poppenbeek, consultant in occupational medicine, dated 12 June 2007 at pages 44-47 DCB;
· Medical report of Mr Michael Shannon, orthopaedic surgeon, dated 21 July 2009 at pages 48-54 DCB;
· Medical reports of Mr B J Dooley, orthopaedic surgeon, dated 3 December 2009 and 28 February 2011 at pages 55-65 DCB;
· Subpoenaed material consisting of medical reports of Dr Steven Jensen, specialist in musculoskeletal pain medicine, dated 26 April 2007 and 16 March 2008 at pages 66-70 PCB.
(c) Exhibit 3
· Letters from Wisewould Mahony to Victorian Compensation Lawyers dated 24 March 2011 and 25 March 2011.
(d) Exhibit 4
· Letter from Victorian Compensation Lawyers to Wisewould Mahony dated 25 March 2011.
(e) Exhibit 5
· Affidavits of Susan Margaret Squire sworn 15 June 2011 and 28 July 2011 at pages 15a-15i DCB.
(f) Exhibit 6
· Further medical report of Dr Gary Davidson, occupational physician, dated 9 June 2011 at pages 23a-23i DCB;
· Further medical report of Mr Michael Dooley, orthopaedic surgeon, dated 19 July 2011 at pages 70a-70e DCB.
(g) Exhibit 7
· Descriptions of occupations in database at pages 71‑78 DCB;
· Specific job advertisements at pages 79-103 and pages 104-121 DCB.
0
13
0