Laratae v Deans Pty Ltd
[2014] VCC 103
•18 February 2014
| 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-10-04979
| KASSANDRA LARATAE | Plaintiff |
| v | |
| DEANS PTY LTD (Trading as: BELLBIRD KIDZ EDUCATIONAL RESOURCES) | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 18 and 19 November 2013 | |
DATE OF JUDGMENT: | 18 February 2014 | |
CASE MAY BE CITED AS: | Laratae v Deans Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 103 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the right arm – impairment to the left arm – impairment to the cervical spine – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Pain and suffering serious injury conceded on finding of compensable injury. Applications dismissed in relation to loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Montgomery | Nowicki Carbone |
| For the Defendants | Ms A Ryan | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant during 2008 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body functions relied upon in this application are the cervical spine, the left and right upper limbs and psychiatric impairment.
5 The plaintiff relied upon four affidavits and gave viva voce evidence. She was cross-examined. Neurosurgeon, Mr Brownbill, was required for cross-examination. The defendants relied upon affidavits from a number of the plaintiff’s former co-workers. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe” in terms of an application pursuant to clause (c). Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
11 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss (17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[3]Mobilio v Balliotis (supra)
12 A Chronic Pain Syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]
[4][2005] VSCA 227
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
The Plaintiff’s evidence
19 The plaintiff is aged forty eight, having been born in May 1965.
20 In March 2003, the plaintiff had some right elbow pain for which she was prescribed Voltaren and the pain resolved.
21 Between about 2000 and 2010, the plaintiff experienced periodic bouts of depression for which she occasionally sought treatment. Prior to her workplace injury, those bouts of depression had generally not impacted upon her ability to work and have an active social life.
22 The plaintiff was educated to Year 10. Since leaving school, she worked as a retail store manager at Pets’ Paradise and a retail sales assistant at Olympic Fitness. She then spent two years as a purchasing officer with Natra Pty Ltd and later worked for three and a half years with John Sands as an overseas purchasing officer.
23 The plaintiff worked for three months as a receptionist before starting work with the first defendant in November 2005, where she was employed until being made redundant in December 2008.
24 The first defendant provided supplies including furniture, arts, crafts and nappies to childcare facilities and crèches. The plaintiff’s duties in the newly created role of a purchasing manager generally required typing at high speed during the day. Her duties involved raising orders, managing inventories, setting up new systems to return stock, sales inventory, cost savings analysis and supply consolidation (“the duties”).
25 From December 2005 onwards, the plaintiff complained about the set up of her workstation, in particular her chair, but nothing was done by the first defendant in relation to her complaints.
26 In about mid 2007, the plaintiff began to experience cramping and pain in her right upper limb which generally came on in the afternoon after several hours’ typing.
27 The plaintiff’s right upper limb pain became increasingly severe through the rest of 2007 to the point that sometimes she could not use her right arm, so that by January 2008 she was using her left arm for typing and she began to experience pain in her left upper limb. Throughout 2008, the plaintiff tried to alleviate her upper limb pain using heat packs at her desk.
28 There was an ergonomic assessment and provision of a chair at the plaintiff’s work station in May 2008.
29 From the beginning of that month, there were discussions between the first defendant, the plaintiff and her general practitioner about changing her role from purchasing manager to a sales representative due to her difficulties typing and with other repetitive tasks in her current role.
30 There was general agreement that the role of sales representative would be more suitable for the plaintiff in light of her upper limb problems. This job was not available until September 2008. Until then, the plaintiff continued in her old duties.
31 The plaintiff first sought medical treatment in January 2008 from Dr McLean. She then resumed seeing her normal general practitioner, Dr Heenitigala, when he returned from leave later that month.
32 Dr Heenitigala referred the plaintiff for scans of both upper limbs and also to Parkmore Physiotherapy which she attended for about six months and then transferred to Life Care Physiotherapy for a further eight months’ treatment. At the end of that treatment, the physiotherapist advised there was nothing further that could be done for the plaintiff.
33 The plaintiff was referred by her general practitioner to Mr Tran, an orthopaedic surgeon. In about March 2008, he arranged for a single steroid injection into her right elbow.
34 In about April 2008, the first defendant recommended the plaintiff see Dr Mitchell. The plaintiff was under his care until about August that year when she had a dispute with him about payment of his fees. Since that time, she has consulted Dr Pragastis.
35 In about June 2008, Dr Mitchell referred the plaintiff to Mr Leong, surgeon, in relation to her left carpal tunnel syndrome. He operated in August 2008 and following surgery, the plaintiff developed trigger finger in her left hand which was treated with a steroid injection.
36 The plaintiff was referred to pain management specialist, Dr Gassin, in 2008. He initially prescribed Prednisolone but that was stopped after the plaintiff experienced side effects. He then increased the dose of Lyrica and prescribed Panadeine Forte.
37 Dr Pragastis also referred the plaintiff to Dr Patrick, a rheumatologist, whom the plaintiff saw twice, initially in about February 2009. He arranged for her to have steroid injections in both arms. However, she found those to be largely ineffectual.
38 Dr Pragastis also referred the plaintiff for heat therapy and acupuncture in about September 2008. Those treatments were effective in reducing her hand pain. She initially had those treatments three times a week until funding was ceased.
39 In about February 2009, Dr Pragastis referred the plaintiff to Ms Tyler for psychological support. The plaintiff saw her every fortnight until she started to see Mr Warner.
40 In about January 2010, Dr Pragastis referred the plaintiff to Dr McCarthy, a pain specialist. After discussing her right upper limb problems and work station difficulties with him, he suggested her pain may be stemming from her cervical spine and he requested an MRI scan be funded by WorkCover. This took place in February 2010 and revealed some damage in the plaintiff’s cervical spine.
41 As of June 2010, the plaintiff was taking Zydol and Lyrica twice a day and Mersyndol Forte up to eight times a day to help manage her upper limb pain. She wore a tennis elbow strip on her left elbow and an elasticised splint on both elbows. She used heat packs. She had also been prescribed Endep and Cymbalta for depression which she also found to be a sleeping aid.
42 In her first affidavit sworn on 15 June 2010, the plaintiff deposed that no formal retraining opportunities were provided by the first defendant.
43 From mid 2007 to September 2008, the plaintiff continued to do pre-injury duties despite increasing right upper limb pain. She tried to type predominantly with her left hand after that time to alleviate the strain on her right upper limb and she used heat packs on her desk to help her work through the pain.
44 The plaintiff had a week off work after the carpal tunnel surgery in August 2008.
45 In her new role as a sales representative from September 2008, the plaintiff was required to drive around to see clients. She found driving long distances and handling the Melways caused her some difficulties.
46 The plaintiff was made redundant by the first defendant in about December 2008 and has not worked since.
47 Prior to her work injury, the plaintiff was generally working 38 hours a week in addition to 5 hours unpaid overtime. On average, she earned about $875 gross per week.
48 The plaintiff believed her earning capacity had been diminished, if not destroyed by her injury, and she had difficulty finding and maintaining employment.
49 As of June 2010, the plaintiff suffered from pain in both upper limbs which could radiate from her neck down her arms to both hands. She then experienced shooting pains up her right side and left upper limbs as well as cramps in both wrists and forearms. The pain was aggravated by even moderate flexing of her wrists or pressure on them, such as gripping things tightly. She had also noticed lack of grip strength and had generally reduced confidence in the functionality of her upper limbs.
50 The plaintiff had difficulties with housework, personal hygiene activities, carrying shopping, falling and staying asleep, driving and gardening which she previously enjoyed. She was far less social and active. She had difficulty going camping and fishing. She no longer did aerobics.
51 In her second affidavit sworn in October 2011, the plaintiff deposed she continued to regularly suffer cervical spine and upper limb pain and her movements were restricted.
52 The plaintiff noted that her work duties often required her to have a telephone wedged between her ear and left shoulder for sustained periods during the duration of telephone calls.
53 The plaintiff initially recalled feeling the onset of pain in the cervical spine in about June 2006. Her duties required a sustained period of neck flexion and she recalled her neck was strained and sore.
54 In about June 2010, the plaintiff was referred to Professor Bittar for her neck condition. He recommended she undergo a nerve sheath injection to assist with her neck pain. However, that request was denied by WorkCover.
55 In 2011, the plaintiff was seeing Dr Pragastis. The plaintiff was prescribed Cymbalta, 60 milligrams daily; Lyrica, 150 milligrams twice daily, and also Tramadol, 200 milligrams twice daily and Mersyndol Forte, between four to six a day. She was also prescribed Endone and OxyContin, 20 milligrams, one to three tablets a day for further pain management.
56 The plaintiff then continued to have sleeping difficulties and was having problems getting to sleep. Her sleep was restless.
57 The plaintiff attended the gym from time to time to maintain physical fitness at the recommendation of her general practitioner for her psychological wellbeing. She took it easy when undertaking gym activities, riding the bike slowly and doing small stretch exercises.
58 The plaintiff then continued to suffer stress, anxiety and depression as a result of her work injury. Performing everyday tasks such as housework gave her pain that caused a lot of frustration.
59 The plaintiff disagreed she was fit to do the jobs set out in the vocational report of February 2011, namely, enquiry customer service information officer, market research interviewer, call centre operator, tourist information officer, ticket seller, retail sales person, general or order clerk, or sales representative.
60 The plaintiff considered her injuries rendered her unfit and unable to perform general administrative roles. She did not understand how such work options had been suggested when she had limited physical and psychological capabilities as a result of her work injuries.
61 The first defendant and the WorkCover agent had not provided the plaintiff with any assistance in retraining and vocational retraining. She was frustrated at her inability to resume any type of work and she feared her capacity for suitable employment had been destroyed.
62 The plaintiff had a minor motor vehicle accident in November 2006 when she injured her right wrist but made a good recovery and did not lodge a TAC claim.
63 In her third affidavit sworn 21 January 2013, the plaintiff confirmed she continued to suffer pain and restriction in both upper limbs and her neck. She also continued to suffer stress, anxiety and depression as a result of her work related injury.
64 In about February 2012, the plaintiff was referred to Professor Bittar by her general practitioner. He advised she undergo neck surgery in the form of a C4-5 and C5-6 decompression and fusion.
65 On about 28 March 2012, the plaintiff underwent this procedure. Unfortunately her pain and restriction of movement had not changed. The surgery failed to relieve the pain and her symptoms continued.
66 The plaintiff’s neck pain had increased since the surgery and she continued to suffer pain going down both arms. She was taking 60 milligrams of Cymbalta daily; Lyrica, 150 milligrams twice daily; Tramadol, 200 milligrams twice daily and Mersyndol Forte, between four to six tablets a day. She was also prescribed Endone and OxyContin, 20 milligrams, one to three tablets a day, to manage pain. She took the prescribed medication as required and when the pain in her neck and both arms was unbearable.
67 The plaintiff continued to wear elbow supports.
68 The plaintiff continued to suffer disturbed sleep, pain and restriction of movement in her neck and both arms. She continued to be incapacitated for all work for which she was suited.
69 The plaintiff took care of herself to the best of her ability and tried to do what she could, including shopping at times. However, due to the pain and restriction she suffered in her neck and both arms, her physical activities were limited.
70 The plaintiff cannot cast a fishing line and she cannot walk the dog as far because of pain in both arms.[7]
[7]Transcript (“T”) 74
71 The plaintiff swore a fourth affidavit on 12 November 2013, confirming she continued to suffer pain and restriction as previously described.
72 Since January 2013, the plaintiff has been attending Michael Warner, psychologist, approximately once a month for treatment. She has also been attending Dr Gang Yu Suri on a monthly basis for cupping, acupuncture and heat treatment for her neck and arms.
73 The plaintiff continues to make attempts to type when required to send documents to WorkCover or send emails. After about ten minutes her forearms and arms begin to ache and she discontinues typing.
74 In cross-examination, the plaintiff agreed she had not told her family doctor of twenty five years, Dr Heenitigala, of any neck pain. In the six months the plaintiff saw Dr Mitchell, she did not complain to him of any neck pain but he sent her to Dr McCarthy for an MRI scan.
75 The plaintiff also agreed she did not tell Dr Pragastis of any neck pain in 2009 and 2010. The plaintiff explained the neck pain did not start until the arm pain was addressed and subsided - towards the end of 2009.[8]
[8]T29. Dr Pragastis’ report mentions a complaint of neck pain but his notes are silent.
76 The plaintiff agreed she had a good result from the left carpal tunnel surgery but then said she still had pain in the front of her left forearm, explaining that there was a small tear in both arms.
77 Dr Tan told the plaintiff that the right tear was inoperable. He gave her an ultrasound-guided injection but she did not get a good result from it.[9] She has not had any further treatment for the right arm since.
[9]T31
78 The plaintiff agreed the onset of neck pain was a year after she finished work.[10]
[10]T33
79 The plaintiff initially said she was sent to Dr McCarthy because of her complaints of neck pain. She then agreed she was referred because of her arm. At that time, the plaintiff had only slight neck pain and the pain in her arms was “just so intense”. They may have been just addressing the arms at that stage.[11] She could not remember if Dr McCarthy then examined her neck. They had a discussion. The plaintiff thought she had only seen Dr McCarthy once.
[11]T35
80 The plaintiff thought at that time her neck was “not extremely bad” because the pain from her arms was more intense. She then described how her arms were settled with treatment and then she noticed more of the intense pain in her neck.[12] She then said her left arm pain had not settled down when she saw Dr McCarthy.
[12]T36
81 The plaintiff could recall her neck was strained and sore in about June 2006. She had had two types of neck pain. She had standard neck pain when overworking on the computer and needed to take a break and that was the initial pain back then. Two years later, the pain was a lot more intense and “of course, the damage was a lot more”.[13] The plaintiff agreed this was the history she had given Mr Brownbill.
[13]T37
82 In her job as a purchasing manager, the plaintiff spent seventy five per cent of her time sitting at the desk. She agreed she had to answer the phone and type invoices but she did not have to stay at her desk all the time. She maintained she had told Joanne Besley about problems with her upper limbs before January 2008.
83 The plaintiff was only given alternative duties after the August 2008 carpal tunnel surgery even though the new job of sales representative was to start from May of that year.
84 The plaintiff agreed she did general office and some computer faxing and filing. She did not have to be very mobile because the filing cabinet was behind her. She then said she had to remain at her desk every day typing.[14] She disagreed that at least ten times a day she would walk 100 metres to the warehouse and essentially disagreed with the contents of Trent Dean’s affidavit.
[14]T41
85 The plaintiff agreed she told doctors she was on the phone pretty much the whole day.[15]
[15]T41
86 The plaintiff described there being 25,000 products in the first defendant’s portfolio. She maintained that she had a target in terms of her purchasing orders and she was under pressure to meet those targets for days such as Mother’s Day. She used the computer all day and was on the phone intermittently. She was on the phone three or four times every hour, on calls of varying lengths.
87 The plaintiff agreed with Mr Dean that she would be on ten to twenty calls a day. She disagreed that the calls averaged an hour in total - it varied. The majority of the time she would be on the phone longer than an hour over different days.
88 The plaintiff sat on a metal chair which was too low for her desk. The phone was to her left. She held the phone under her ear because she had to write and type whilst on the phone.
89 The plaintiff agreed she was allowed to have breaks during the day.
90 The plaintiff told Joanne Besley her arms were burning and they were so tight that she could not type.
91 The plaintiff denied ever coming to work in January 2008 with a bandage on her wrist. She agreed with Joanne Besley that she was not tied to her desk. She did warehouse work until being told by Trent Dean at the end of 2007 that she could not do that work anymore.
92 The plaintiff agreed that she had received a first warning in February 2007 but denied there was a second warning.
93 The plaintiff agreed she did not mention her neck in her claim form in February 2008 where she described “RSI right wrist and forearm left shoulder, constant repetition movement typing orders, ergonomic desk chair was set up over a six-month period”.
94 The plaintiff confirmed her neck pain started in the middle of July 2007, six months before the claim was lodged.[16]
[16]T51
95 The plaintiff’s current left arm pain is in the front of the forearm. She described “a small tear and a centimetre hole in the right forearm in the same place”. The left forearm pain feels like a twisting burning cramp.[17]
[17]T52
96 The plaintiff is right handed but she is a little bit ambidextrous at the moment and capable of using both hands.[18]
[18]T52
97 The plaintiff initially had six months of intense physiotherapy on her right arm. She has had injections in both arms.
98 The plaintiff has been told by doctors that her elbows would not heal and that the problems were coming from the neck so all the actions had pointed towards the neck to try and fix her arms.[19]
[19]T54
99 The plaintiff confirmed she returned to limited gym activities after the arm injury but before neck surgery.
100 The plaintiff’s arms are now crooked and are a lot weaker and she drops a lot of things. She agreed this was not mentioned in her affidavit.[20]
[20]T57
101 The plaintiff agreed if she had neck pain when she saw Dr Karna at the end of 2009 she would have told him about it. She agreed she did not mention anything to him about neck pain. She did not recall telling him that she did not have neck pain when she had the MRI scan in February 2010 and then said that was correct, that she was still dealing with the arm pain.[21] If he had written since the middle of 2010 the plaintiff had neck pain with periodic sharp spasms of discomfort that was then the situation but she then said these spasms started in 2009.[22] The plaintiff thought she first complained of neck pain to a WorkCover doctor in 2009 whom she had seen in relation to her arms.[23]
[21]T61
[22]T61
[23]T62
102 The plaintiff agreed that she did not tell Dr Pragastis that she had neck pain.[24] She agreed her neck was sore only after neck surgery. Her arm pain before the onset of neck pan was different – there were two types of pain. Before, there was a nerve pain and there was the muscle cramping twisting pain.[25] The pain in her left forearm went up to her shoulder.
[24]T63
[25]T64
103 The plaintiff agreed she had a full range of movement of her arms in 2009. Movement in both arms started to deteriorate over the last few years.[26]
[26]T67
104 The plaintiff agreed that when she saw Dr Karna in 2010 there had been a change in her symptoms. Her arms had settled down by then and the pain from her neck was becoming more obvious.[27] The sharp nerve pain and muscle pain had settled down in both forearms because she was having treatment and acupuncture was helping.[28]
[27]T69
[28]T70
105 There had always been neck pain that had been covered over by the plaintiff’s arm pain.[29] She agreed it was a new symptom reported by Dr Karna in 2010.
[29]T70
106 The plaintiff denied her current right arm symptoms are totally different to her initial symptoms. There is some very similar nerve pain in the arms and neck plus a different muscle pain in the arms.[30] Up until the middle of 2010 the plaintiff was feeling nerve and muscle pain and then later on, the pain was going into her neck.[31]
[30]T72
[31]T73
107 The plaintiff agreed she was able to return to full-time work with restricted hours doing the purchasing role for eight months and then did sales and driving for three months. She was on full hours but she was allowed to go home if the pain was too bad.[32]
[32]T75
108 The plaintiff agreed she issued unfair dismissal proceedings in the Industrial Relations Commission. In her documentation in support of that application dated December 2008, the plaintiff said she was “totally stressed as to why assistance was not being given to her to allow her to complete her new role to its full potential”.
109 The plaintiff is a very determined person. She agreed she would have been capable of working in her new role and doing it to its greatest potential because of her injuries.[33]
[33]T77
110 The plaintiff then agreed the only reason she stopped working was the redundancy but then explained that she worked with a heat pack on her desk.[34]
[34]T77
111 The plaintiff was depressed because of pain in her neck and arms and she discussed this with Mr Warner.
112 There was worsening neck pain straight after the surgery. The pain is now 8 out of 10, having earlier been 10 out of 10, and the plaintiff’s neck continues to be a problem and gives her problems sleeping, as do her arms.[35]
[35]T79
113 The plaintiff thought she had a lesser work capacity in 2011 than in 2009 because her arm condition had deteriorated.[36]
[36]T80
114 The plaintiff did not think she could work as a tourist information officer or rental sales because any use of computers would cause arm problems. She could not do repetitive work because of her neck and arm. Her problem is half and half, the neck and arms.
115 The plaintiff was told she was supposed to be having a 50/50 chance of the neck surgery fixing her arms but that did not happen.[37]
[37]T81
116 The plaintiff sees Mr Warner for psychological counselling intermittently when she needs him. She had suffered depression in previous years and needed medication but had not had psychiatric referral before the work injury.
117 The plaintiff is presently on a disability support pension and has not made any job applications but has worked with rehab people to see what she could do. She has also discussed vocational options with Mr Tyler. She had applied for some retraining but funding had been knocked back for roles of private investigator, marriage celebrant and dog groomer. The plaintiff could work as a dog trainer, teaching people how to manage their dogs.[38]
[38]T83
118 The plaintiff confirmed there were no problems whatsoever with the carpal tunnel after surgery and that she had been referred to Mr Slattery early on in relation to that condition.[39]
[39]T85
119 In re-examination, the plaintiff confirmed that Dr Leong had told her nothing further could be done with her right arm and it was inoperable and would never repair properly. There was a small tear in the top of her left forearm.[40]
[40]T85
120 The plaintiff brought her own chair into the office because the first defendant would not provide one.[41] On being told not to go to the warehouse, the plaintiff’s time on the phone increased.[42] Trent Dean was away from the office a lot.
[41]T87
[42]T88
121 The plaintiff provided all the details of the dog training course and private investigator courses to the insurer, including the cost. She had also requested home help but that was denied.
122 The plaintiff confirmed her current medication regime is 200 milligrams of Tramadol a day, one Endone tablet a day and OxyContin - prescribed by Dr Pragastis. She is taking Lyrica, 150 milligrams twice a day for nerve pain. She also takes Cymbalta for depression, stress and anxiety. The plaintiff had taken Endone right from the start but OxyContin started after the neck problem.
Lay evidence
123 Laurel Disomma, the plaintiff’s mother, swore an affidavit in October 2011.
124 Mrs Disomma and Alma Price started trading in a business “Laurel’s Littles” in about December 2005 producing aprons for the first defendant. During 2006, the plaintiff dropped off material for the aprons and picked up finished aprons to take back to work.
125 During those times, Mrs Disomma could recall the plaintiff chatted to her and Alma, complaining about muscle aches, stiffness and pain in her neck whilst working for the first defendant. She recalled that in about mid 2007, the plaintiff began to complain about pain in her forearms and later her wrists.
126 Over the last four years, she had noticed the plaintiff’s condition had worsened. She had complained about aches and pains and felt she was not getting better.
127 The plaintiff is no longer as positive and cheerful as she used to be since sustaining the injuries, and is saddened and depressed by her condition.
128 Mrs Disomma has noticed that the plaintiff is more short tempered since her injury and tends to be more irritable and frustrated and is generally tired and on heavy medication and tends to be less cooperative and not as easygoing. Further, she is not as socially active as she used to be.
129 Alma Price, a family friend of the plaintiff, swore an affidavit in October 2011. Ms Price confirmed the arrangement with the aprons.
130 Ms Price confirmed the plaintiff’s complaints of neck stiffness during 2006 and in 2007 and her complaint of upper limb pain.
131 Ms Price has noticed the plaintiff has become more moody and irritable because of pain. The plaintiff has advised her she needs to try not to think about the injuries for her to be able to get out of the house as when she thinks of the injuries, it depresses her and makes her reclusive.
132 Since the plaintiff has suffered her injuries, Ms Price has observed she has difficulty talking openly with the family and close friends about her struggles and she tends to confide in her about her pain. She has observed the plaintiff taking various kinds of medications to help her pain.
Compensation documents
133 The plaintiff signed a claim form on 11 February 2008 setting out her injuries as being RSI right wrist and forearm and left shoulder; constant repetition movement typing orders with incorrect ergonomic chair over six-month period. The plaintiff described working 35 hours earning $22.73 an hour. Her usual pre tax weekly earnings were $865.
134 The employer’s claim form set out the plaintiff was doing computer work mainly, raising purchase orders and retrieving stock in a role as a purchasing officer. It was noted that her injury was possibly contributed to by the gym and that on her first day back in 2008 after a break, the plaintiff had strained a muscle in her forearm due to over lifting at gym.
135 By letter dated 7 January 2008, CGU accepted the plaintiff’s claim for weekly payments in relation to an injury on 7 January 2008.
Investigations
136 Dr Heenitigala organised an ultrasound of the plaintiff’s right wrist on 19 February 2008. It was reported the findings were consistent with a mild form of De Quervain’s tenosynovitis. An ultrasound of the plaintiff’s right elbow and forearm on 20 February 2008 demonstrated a chronic tear in the common extensor origin.
137 Mr Tran organised an ultrasound injection of the plaintiff’s right elbow in March 2008.
138 Dr Mitchell organised a nerve conduction study on 7 May 2008. It was concluded there was an abnormal study and the findings were consistent with relatively mild compression of sensory fibres of the median nerve in the carpal tunnel on the left side.
139 In March 2009, Dr Pragastis 2009 organised a left elbow x‑ray and ultrasound. It was reported slight osteoarthritic changes involved the elbow joint anteromedially in relation to the medial aspect of the coronoid process with slight narrowing of the joint space in that region and formation of a tiny osteophyte on the margin of the coronoid process.
140 A small tear was present in the deep aspect of the proximal common extensor tendon origin and the rest of the common extensor tendon origin showed irregular and reduced echogenicity and contained several tiny areas of calcification.
141 It was reported appearances were consistent with tendinopathy in the common extensor tendon associated with a tiny tear. The elbow region appeared otherwise normal.
142 Dr McCarthy organised an MRI scan of the plaintiff’s cervical spine in February 2010.
143 It was reported there was foraminal disc protrusion at C4-5 resulting in a moderate right foraminal narrowing potentially impinging the exiting right C5 nerve root. There were foraminal disc protrusions at C5-6 bilaterally resulting in mild lateral foraminal narrowings where the C6 nerve roots traverse.
144 Following a CT scan of the cervical spine in April 2012, it was reported there was spondylosis.
145 There was a CT scan of the cervical spine in May 2012 following surgery. It was noted the cervical spine alignment was unremarkable.
146 Following a cervical MRI scan in May 2012, it was reported there was PLL hypertrophy, congenital cervical spinal canal stenosis and multilevel posterior disc bulges producing moderate spinal canal stenosis from C4 to mid T1. There was no evidence of cord compression or cord oedema. It was reported the degree of disc degeneration and posterior disc bulge at C6-7 was essentially of similar severity compared to C5-6 and C4-5.
Treaters
147 Dr Heenitigala reported in November 2011 that he first saw the plaintiff regarding pain in both arms on 18 January 2006 due to key punching at work and she was provided with anti inflammatories.
148 The plaintiff was seen about her painful right arm on 22 January 2008 and tenosynovitis was diagnosed and more anti inflammatories were prescribed. On 8 February 2008 she claimed her right elbow problem was work related and she was certified unfit for a day. She was referred to an ultrasound and to Mr Tran, from whom she had a cortisone injection.
149 There was a CT scan in October 2008 revealing a tear of the right common extensor tendon. Dr Heenitigala noted the plaintiff was seeing Dr Mitchell who she attended on advice from work. She was on Lyrica. In March 2008 she had a cortisone injection from Mr Tran.
150 Dr Heenitigala had no record of any injury to the plaintiff’s cervical spine.
151 Dr Mitchell from McDonald Street Medical Centre in Mordialloc reported to CGU in July 2008. He described the plaintiff presenting to him in early 2008 as a person with complex problems. She clearly had an overuse injury affecting predominantly her right arm and on the second visit that month, it became clear she had left hand and wrist symptoms of a significant nature, resulting form increased usage of the left hand, particularly in data entry.
152 Dr Mitchell clearly accepted the connection between work and the plaintiff’s symptoms and saw the carpal tunnel as secondary to overuse of the left hand. That increased usage was caused by her injury related reduction in right hand usage.
153 Dr Mitchell referred the plaintiff to Dr Gassin in April 2008 in relation to right chronic forearm pain. He referred her to Mr Slattery for a second opinion as to the left carpal tunnel.
154 Dr Mitchell referred the plaintiff to Dr Patrick, rheumatologist, in November 2008 in relation to left carpal tunnel syndrome, left carpal tunnel release surgery and left tennis elbow, right upper limb RSI. There was a further referral letter on 2 February 2009, noting a problem of left carpal tunnel syndrome requiring surgery and also bilateral elbow pain and the plaintiff’s right epicondylar region tear.
155 The plaintiff was referred to Dr Leong, plastic and reconstructive surgeon, in July 2009 with the problem of deteriorating chronic pain.
156 The plaintiff was referred to Dr McCarthy in August 2009 for chronic pain.
157 Dr Pragastis provided a detailed report in January 2013, noting the plaintiff first came to see him on 19 November 2008.
158 Dr Pragastis recorded the plaintiff’s initial presentation was then of pain involving the upper limbs, bilateral elbow and forearm pain and she was experiencing psychological distress.
159 Dr Pragastis first injected the plaintiff’s left elbow in December 2008 and referred her to Dr Patrick and also for acupuncture.
160 In his first certificate in November 2008, Dr Pragastis certified the plaintiff fit for non repetitive full time office duties, three days a week. Despite the fact the plaintiff was retrenched, Dr Pragastis thought she was fit for light duties and continued to certify her as such. However, he then noted she continued to see him throughout 2009 during which time she was unfit for work due to multiple work related problems.
161 Dr Pragastis noted the plaintiff’s neck and arm pain became increasingly worse and unbearable by 2010 and the MRI scan disclosed problems with her neck. The plaintiff underwent neck surgery in May 2012. In August she reported a benefit in terms of her neck pain but her arm pain was worse and her pain more intense than before surgery.
162 Dr Pragastis considered on balance the plaintiff’s employment remained a cause of her ongoing physical injuries. He thought she had a substantial number of injuries which affected her capacity for work, given that she had had several years of enforced unemployment and multiple injuries. He thought her capacity for work was very limited and she was permanently disabled.
163 From a physical basis alone, he considered the plaintiff could not undertake regular full time or part time work. She could not work as a sales representative, retail buyer and importer or exporter or pet groomer.
164 In Dr Pragastis’ opinion, at her age with all her multiple injuries and training and skills, the plaintiff had no capacity for residual employment. He thought her ability to engage in social and recreational activities was severely limited and her quality of life had been severely affected.
165 Dr Pragastis considered the prognosis was pessimistic and the plaintiff had permanent physical injuries. With respect to her cervical spine presentation in 2008, the diagnosis was not made by him at that time. Dr McCarthy detected the plaintiff had a cervical spine component.
166 Dr Pragastis felt it was reasonable to add that the plaintiff had an undiagnosed injury of her cervical spine which caused bilateral brachialgia contributing to her presentation. In his view, that was consistent and her symptoms were consistent with the diagnosis of cervical root irritation causing brachialgia.
167 Dr Pragastis also noted the 2012 investigations.
168 The plaintiff was initially referred to Mr Pereira, physiotherapist, by Dr Heenitigala in February 2008 for right forearm and wrist pain. The physiotherapist thought there might be some neural tension also, likely from neck and upper back postural problems as well as a right arm overstrain.
169 Mr Tran, orthopaedic surgeon, saw the plaintiff on 28 February 2008 when she complained of discomfort and pain in the right elbow, fingers and wrists over the last six months. She also had pain in the left periscapular region since January.
170 On examination, the right elbow and wrist was stable with no evidence of radial of medial nerve neuropathy. The plaintiff had marked soreness over the common extensor tendon origin. Mr Tran referred her for an ultrasound guided injection in that area and strongly recommended physiotherapy.
171 The plaintiff was referred to Dr Gassin by Dr Mitchell in April 2008. He saw her on two occasions with right arm symptoms. Dr Gassin prescribed Prednisolone having diagnosed tendonitis or neuropathic pain in the right arm. He then suggested a gradual increase of Lyrica and a limit in the use of Tramadol.
172 The plaintiff told him on those initial examinations of problems with overuse of her right arm and more recent, but less severe symptoms, in the upper left.
173 On the initial examinations, the plaintiff had some decreased muscle strength, numbness and decreased sensation throughout the right upper limb. She did not return for review after those two initial examinations.
174 On re-examination organised by the plaintiff’s solicitors in June 2013, the plaintiff reported her current symptoms included a sharp pain radiating from the neck down to both shoulders and arms and a sharp cramping and twisting pain in the right forearm and constant headaches.
175 There was a very limited range of cervical movement and some limitation of shoulder movement. There was no wasting of the upper limb musculature. Neurological examination of the upper limbs revealed normal reflexes and power. There was slight decrease of sensation in distribution of the left C-8 nerve and the plaintiff was tender to palpation throughout the cervical and shoulder girdle region.
176 Dr Gassin thought the plaintiff would remain on narcotic medication and require intermittent physiotherapy and psychological support and would benefit from a structured pain management program. He thought she might also be a candidate for cervical spinal cord stimulation.
177 Dr Gassin considered the plaintiff’s pain was most likely arising from chronic damage and/or dysfunction of the C5-6 and/or C-6 nerves at the level of her spine. He thought it likely she would also develop central sensitisation and neuropathic pain, giving rise to a chronic pain syndrome affecting the neck, shoulder girdles and arms.
178 In his opinion, sitting at a desk using a computer all day was unlikely to result in a disc bulge and nerve root impingement. However, it may well lead to a previously asymptomatic bulging disc becoming inflamed leading to irritation of the traversing nerve roots.
179 Dr Gassin thought the plaintiff was not able to partake in pre-injury employment because of a neck injury. He considered the best way to ascertain her capacity was for a trial of work on light, non physical duties for a few hours a day and then assess her situation. He also thought the plaintiff’s ongoing organic physical injury interfered significantly with recreational and social activities.
180 In the future, Dr Gassin expected the plaintiff to suffer from significant pain and associated disability resulting form her neck injury on a permanent basis.
181 Mr Leong requested funding for carpal tunnel surgery in June 2008. He reported that the findings were mildly constricted and the plaintiff was progressing nicely.
182 Physiotherapist, Mr Moar, wrote to Dr Patrick in January 2009 noting the plaintiff presented with a complex history of bilateral elbow pain and left-sided carpal tunnel syndrome.
183 On 30 July 2010, Professor Bittar reported to Dr Pragastis thanking him for the referral of the plaintiff who presented with neck pain and bilateral brachialgia.
184 Professor Bittar described the plaintiff’s work station and the onset of her arm pain. He noted initially she complained of pain radiating through her shoulders into her arms with the right arm being more severely affected and those symptoms persisted and over the past month or so she began to experience neck pain.
185 Professor Bittar reviewed the February 2010 MRI scan. His impression was that the plaintiff’s symptoms were likely to be emanating from the C5-6 level as the pattern of her pain fitted reasonably well with C-6. Nevertheless he thought the right C4-5 disc protrusion could also be contributing.
186 In order to clarify the pain generating level, Professor Bittar recommended the plaintiff undergo a right C-6 nerve sheath injection which may be of diagnostic and therapeutic value. Depending upon her outcome, he may recommend an injection at C-6. He thought given the symptoms had been present for at least a year and a half, and were not improving, the plaintiff would probably be heading towards surgery.
187 Professor Bittar again wrote to Dr Pragastis in October 2010, having seen the plaintiff who continued to suffer from significant right arm pain which had certainly not improved and she had not had approval for the injection.
188 Professor Bittar thought the plaintiff suffered from aggravation of cervical spondylosis.
189 On review on 8 February 2012, the plaintiff still had not obtained approval to have the recommended nerve block and continued to suffer from significant neck pain and bilateral arm pain. Given her persistent symptoms and desire to receive definitive treatment, Professor Bittar recommended she consider a C4-6 and C5-5 anterior cervical decompression and fusion and placed her on a waiting list at The Royal Melbourne Hospital.
190 Professor Bittar reviewed the plaintiff in August 2012 after that surgery. Her neck pain had improved; however, her arm pain had deteriorated. He then thought she was unfit for work and recommended an MRI scan of the cervical spine.
191 Professor Bittar thought the plaintiff’s prognosis was relatively poor and despite surgery, she remained significantly symptomatic and incapacitated.
192 Specifically Professor Bittar considered the plaintiff did not have the capacity to work either full or part time in a reliable and consistent manner as a sales representative, retail buyer, importer or exporter or pet groomer.
193 In his opinion, the plaintiff’s residual employment capacity was negligible. He thought it would be prudent to wait until a year post operatively and her condition had stabilised before commenting on long term residual employment capacity. He thought on the basis of her response to treatment to date, the general prognosis was fairly poor in relation to her ongoing organic physical injury.
194 The plaintiff received counselling from Mr Warner at Mirrool Counselling from May 2011. He thought her symptomatology was consistent with depression and anxiety.
195 When he reported in January 2013, Mr Warner noted the plaintiff had had minor bouts of depression well before the work injuries but they had never prevented her from working or fulfilling her responsibilities. In his opinion, the plaintiff’s inability to work had triggered her current depression.
Medico-legal evidence
196 The plaintiff was examined by neurosurgeon, Mr David Brownbill, on 5 October 2010.
197 The plaintiff told him of the onset of cramping in both arms in mid 2007, with increasing problems over January 2008. She said she had some pain in the back of her neck since 2006 which would come and go but was not severe. Her duties were changed later in 2008 to a sales representative and she had pain in the back of her forearms, more so on the right. She had ongoing pain in the back of her neck which would come and go and was not severe and was unchanged.
198 On examination, the plaintiff complained of an aching sharp pain in the back of her neck, which had increased and had become severe a few months before the interview and until then it was a minor ache that came and went and it was now present all the time. She complained of aching at the back of the right upper forearm and the left, but not as severe.
199 On examination, active cervical spine movements were slightly reduced on the left. Shoulder movements were full on both sides. There was tenderness on the left spine low posteriorly. There was no wasting of the upper limbs and power was full and equal and reflexes present and symmetrical.
200 Mr Brownbill had reports from Professor Bittar, Dr Karna and Dr Lee.
201 Mr Brownbill concluded examination showed restriction of cervical spine movements. There was no objective neurological abnormality and no signs of radiculopathy or myelopathy.
202 Mr Brownbill noted that investigations had shown two level cervical large disc protrusions with foraminal encroachment. There was tenderness near the common extensor origin of each forearm. He thought the plaintiff had suffered bilateral extensor tendonitis, the assessment of which lay in the rheumatological province.
203 Mr Brownbill commented that it was a complex situation but on probability the plaintiff had suffered also aggravation of pre existing cervical spine degenerative changes, giving rise to nerve root irritation contributing to the right arm pain but without neurological abnormality on examination. He thought her work activities were a significant contributing factor to the cervical spine degenerative change aggravation. Treatment in relation to the spine and the right arm was reasonable.
204 Mr Brownbill thought in the future the plaintiff should avoid activities involving heavy lifting, forceful cervical spine mobility or holding her neck in a flexed position. He thought the injection suggested by Mr Professor Bittar was reasonable.
205 On probability, Mr Brownbill thought at that stage the plaintiff did not have a current work capacity but he could not state how long that would continue. He thought there were no non work related factors apparently impinging on her condition and that a pain management assessment was appropriate.
206 In cross-examination, Mr Brownbill confirmed the plaintiff’s complaints of forearm pain went to the elbow creases, the back of the upper forearm. She described pain at the rear of her neck and did not talk about any radiating pain. He agreed she told him that that pain in the neck would come and go and it was not severe and clearly she did not think it was of any importance. He had no doubt she was not embellishing any symptoms.
207 Mr Brownbill saw both inflammation of the forearm (a local problem) and neck pain as contributing to the plaintiff‘s condition. The plaintiff had some neck pain, not a lot, radiological investigation of degenerative changes with encroachment on that foramen where the nerve root is, and a history of having used a telephone on the shoulder. That resulted commonly in irritation or aggravation of degenerative changes, irritating the nerve root.[43]
[43]T102
208 Mr Brownbill explained that interscapular type symptoms were consistent with anything in the lower part of the cervical spine.
209 In Mr Brownbill’s view, the absence of neck pain does not mitigate of itself against there being nerve root irritation and referred pain. He certainly was not basing his ultimate conclusion on there being continuous neck pain from the time of injury.
210 When Mr Brownbill explained in his report that forearm pain lay within the rheumatological province, he thought there was most definitely a contribution to the forearm pain by the inflammatory process and that was within the province of a rheumatologist, but it was a complex system in which he considered on probability there was a double contribution, also involving cervical spine degenerative changes.[44]
[44]T107
211 Mr Brownbill explained that there is no amount of time that would need to be involved with a particular activity to result in nerve root irritation; it depended on the person involved.[45]
[45]T108
212 Mr Brownbill thought Dr Karna was entitled to his opinion and he respected it, noting he was a very fine rheumatologist. As a neurosurgeon, Mr Brownbill thought it reasonable to conclude there was also a contribution from nerve root irritation in the neck.[46]
[46]T112
213 Dr Peter Blombery, vascular surgeon, examined the plaintiff in April 2011. The plaintiff did not give a history of neck injury and on examination complained of bilateral arm pain, more severe on the right than the left over extensor insertions at the elbow extending to the upper arm but not the distal forearm or hand. She also had neck pain which was becoming worse.
214 On examination, there was a full range of movement of the elbows and wrists and both hands were the same temperature and colour. Grip on the right was 6 and on the left, 10 kilograms. There was some limitation of cervical movement and reflexes in the upper limbs were all brisk and symmetrical.
215 Dr Blombery thought that the bilateral extensor tendon injuries were a consequence of the heavy and repetitive work typing work undertaken by the plaintiff. He thought that the same aetiology was the case with the carpal tunnel compression of the median nerve on the left side.
216 Dr Blombery considered the plaintiff also had a component of a non specific pain syndrome in the areas where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non painful stimuli became interpreted by the cerebral cortex as being painful. He did not feel that the plaintiff had a major component of complex regional pain syndrome Type 1. He thought the prognosis for recovery was poor as it was four years since the onset and there would be no significant change in the level of disability in the foreseeable future.
217 Dr Blombery considered treatment was appropriate in the form of multidisciplinary therapy for a chronic pain problem. He thought the plaintiff was clearly unable to undertake previous or suitable employment. He considered the upper limb injuries arose out of the nature of employment. He considered the previous asymptomatic degenerative changes in the cervical spine were made symptomatic by the nature of employment.
218 In his view, each of the injuries separately would render the plaintiff unable to do her pre-injury employment and would prevent her from doing regular full time or part time work. He considered the cervical injury in isolation may permit her to do some part time work if there was no other injury present.
219 Dr Castle, occupational physician, examined the plaintiff in June 2011. There was the history of initial right arm pain then left arm and then that as a result of an MRI scan, a problem was found in the plaintiff’s neck in 2010.
220 On examination, the plaintiff complained of a constant ache in the right forearm and neck pain with severe headaches and pain in both shoulders. There was tenderness over C4-5 and C5-6. Reflexes were equal, symmetrical and of normal amplitude for biceps, triceps and supinator jerks.
221 There was slight tenderness of the right lateral epicondyle, no swelling and sensation was normal. There was no tenderness of the left lateral epicondyle and no pain on resisted extension of the plaintiff’s left little ring finger, although there was on the right middle finger. Muscle power was normal for both shoulders and reduced for the right elbow.
222 Dr Castle thought the plaintiff was suffering from a chronic pain syndrome which was organic. He thought there was slight evidence of a right lateral epicondylitis but that was not severe at present and there was no evidence of that condition on the left. There were no signs of carpal tunnel.
223 Dr Castle thought the plaintiff would benefit from undertaking a multidisciplinary pain management program.
224 Dr Castle noted studies all stated that there was insufficient evidence linking the prolonged typing with elbow problems. He considered that bilateral elbow and forearm problems did result from work, led to pain and the subsequent chronic pain syndrome. He also thought as a result of her chronic pain, the plaintiff developed a chronic adjustment disorder with major depression. He considered the pain syndrome was a physical condition, noting that other examiners had referred to it as myofascial pain syndrome.
225 It was also Dr Castle’s opinion the plaintiff’s initial forearm problems were an early manifestation of her neck problem. As time had gone on, those neck problems had worsened and it had become clear the significant part of her bilateral forearm pain had come from her neck. He considered the right upper limb pain was due to right lateral epicondylitis and cervical spondylosis and the left was due to a persistent pain syndrome following the development of left lateral epicondylitis, left carpal tunnel and cervical spondylosis.
226 The main problem in Dr Castle’s view preventing the plaintiff from returning to work in her pre-injury duties was the persistent syndrome due to her upper limb and cervical spine injuries. The right upper limb prevented her doing the amount of typing she used to, as did her left, and the neck would prevent working because of problems with flexion. There was also restriction in social and domestic tasks.
227 Dr Castle thought the only other treatment that may be of benefit was a pain management program but given the duration of the plaintiff’s symptoms he thought that she would have a permanent impairment and expected the general prognosis was guarded.
228 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in December 2012.
229 The plaintiff told her of initial right sided pain and later pain on the left, due to overuse. Having been told by a specialist who thought her persisting arm pain was due to her neck, the plaintiff recalled she had spent many months with the phone in the crook of her neck and she recalled she had neck discomfort prior to the onset of right arm pain.
230 On examination, there was reduced range of cervical movement and of the shoulders. There was a full range of movement of both elbows but tenderness in the lateral and medial aspects. There was tenderness at the flexor musculature on the right and a full pain free range of movement of the wrists and digits.
231 There was no abnormality of reflexes detected and power seemed to be generally decreased but there was no focal weakness. There was no alteration in sensation to light touch or vibration but distinct decrease in sensation to cold in the right upper limb compared to the left and the right upper arm and forearm.
232 Dr Sutcliffe noted the investigations to date and was provided with reports from Professor Bittar and Dr Gassin.
233 Dr Sutcliffe thought that the plaintiff sustained work related injury as a result of her prolonged hours of typing. She believed more likely than not there had been nerve root irritation on the right and left C6-7 level and to a lesser extent C4-5. She thought that it was more likely than not the reason for the persisting widespread upper limb pain. However she thought the plaintiff did have findings consistent with lateral epicondylitis on the right and left.
234 Dr Sutcliffe considered the plaintiff had lost her occupation as a purchasing officer and lost her capacity for any employment for which she was trained or had expertise or experience and that a return to the workforce would provide great difficulties. In her view, the plaintiff had no capacity to perform work in a reliable, efficient or productive manner.
235 Dr Sutcliffe thought the outcome of neck surgery still was not clear. In her view, the plaintiff would require further treatment for management of pain and the possibility of further surgery. Considering the physical organic injuries alone, she thought the plaintiff had no capacity on a permanent basis to undertake pre-injury work or any capacity for suitable employment, but noted further improvement may occur as surgery was only recent.
236 Dr Sutcliffe believed the plaintiff had no capacity for the following jobs given her physical capacity - sales representative; retail buyer; importer and exporter; pet groomer.
237 Dr Sutcliffe believed that further passage of time must occur before a definitive decision about the plaintiff’s residual employment capacity can be made, given the recent surgery. She thought the prognosis was generally poor.
238 Dr Weissman, consultant psychiatrist, examined the plaintiff in June 2011. The plaintiff told him of pain going up her forearms to the level of her elbows and she also had pain in her upper arms, shoulders and neck. These symptoms game on gradually over time from December 2005. The plaintiff was told her forearms were not operable but potentially her neck was.
239 The plaintiff said she was trying to find a future and it was bleak at the moment. She told Dr Weissman she could not do anything repetitive with her hands. She thought about doing a private investigator’s course and a course working with animals but was worried she would not be able to take notes during the course.
240 Dr Weissman thought the plaintiff suffered from a chronic adjustment disorder with depressed and anxious mood of moderate intensity or severity. He thought there were also some symptoms and features suggestive of the development of a chronic pain disorder associated with psychological factors and a general medical condition but he was not absolutely convinced about the second diagnosis. He thought at least the plaintiff had a partial capacity for suitable duties and potentially full time in terms of her psychiatric condition.
Vocational evidence
241 Katrine Green provided a vocational assessment in June 2011.
242 Ms Green concluded the plaintiff suffered gradual onset injuries to her right upper limb, left upper limb and back and post injury developed psychological symptoms. The plaintiff told her that having commenced work as a sales representative with the amount of driving, she developed further symptoms in the back of her neck and bilateral shoulder pain.
243 Ms Green thought having regard to the medical opinions and taking into account the plaintiff’s work history, transferrable skills, level of education and vocational training, physical and psychological restrictions and a period of incapacity due to her right upper limb injury, her labour was unsaleable in any job market reasonably available to her, as was the case with her left upper limb injury and her back injury (cervical?).
The Defendants’ lay evidence
244 A number of affidavits were relied upon by the defendants from the first defendant’s directors and employees as to the nature of the plaintiff’s duties and their knowledge of any injury suffered by her at work.
245 Directors John and Kaye Dean and office manager, Joanne Besley deposed the plaintiff made no complaint to them of problems with her work duties or her work station.
246 John and Kaye Dean, Joanne Besley and product and marketing manager Stuart Coleman did not observe the plaintiff having problems with her arms due to work duties.
247 The plaintiff told Kaye Dean and managing director Trent Dean that she had hurt her arms at the gym in early 2008.
248 Joanne Besley and Trent Dean did not believe the plaintiff was tied to her desk during the working day. Mr Dean described a wide range of duties performed by the plaintiff and that she was able to walk around during the working day. He described the change in the plaintiff’s role after she later complained of arm pain due to typing. At no time did the plaintiff complain of neck pain. The plaintiff was never given a target in relation to purchasing orders.
249 Whilst the number of order and placement phone calls varied, the current purchasing officer makes or receives about ten to twenty calls a day which combine on average to about an hour spent on the phone spread over the day.
Termination of employment
250 By letter dated 3 December 2008 the plaintiff was advised that due to an economic downturn and her inability to perform her normal function of a purchasing officer, she would be retrenched.
251 The plaintiff filed an application for relief in relation to termination of employment on 5 January 2009. She wrote an accompanying letter detailing her claims in January 2009 in which she advised that “she was totally stressed as to why assistance was not being given to allow her to complete her new role as to its full potential.”
Compensation documents
252 By letter dated 2 December 2010, CGU advised the plaintiff that it determined to reject her claim for weekly payments and medical and like expenses for her neck condition because it did not arise out of the course of her employment. That decision was based on an examination by Dr Karna, rheumatologist.
253 By letter dated 2 June 2011, the plaintiff was advised by CGU that from 3 September 2011 she was no longer entitled to weekly payments because they had been payable for a total of 130 weeks and she had a current work capacity.
254 Dr McCarthy, specialist anaesthetist, wrote to Dr Pragastis on 14 October 2009 thanking him for the referral of the plaintiff who had problems with both arms, mainly at the elbows, right worse than left and had current left carpal tunnel syndrome.
255 Dr McCarthy advised the plaintiff’s pain extended from her elbows forward into the forearms.
256 On examination, cervical range of movement was well maintained. It was difficult to test right arm muscle power due to pain. The plaintiff had decreased cold sensation to heat and cold through the forearms on the right and marked tenderness of the extensor tendon origin. Wrist extension in particular caused markedly increased pain there. There was also some tenderness at the common extensor origin on the left. He did not note any left thenar wasting.
257 Dr McCarthy noted the ultrasound of the left wrist of March 2009 showed a small tear.
258 Dr McCarthy thought the plaintiff’s pain had neuropathic qualities away from the extensor tendon and into the forearm on the right and suggested a change in medication.
259 Dr McCarthy advised Dr Pragastis he was writing to WorkCover to organise a cervical MRI scan to exclude any spinal cause for the plaintiff’s bilateral arm symptoms.
Medico-legal evidence
260 The main medico-legal opinion relied upon by the defendants in relation to the cervical spine application was provided by Dr Karna, rheumatologist who examined the plaintiff initially in March 2009 regarding her upper limb complaints.
261 On initial examination, from a medical point of view, Dr Karna thought the plaintiff clearly had bilateral epicondylitis type lesions with lateral epicondylar tenderness, positive provocation manoeuvres and pain in the extensor forearms. Carpal tunnel was not then evident.
262 Dr Karna did not believe the left carpal tunnel lesion was a work-related entity. He considered the typing, which was clearly a major aspect of the plaintiff’s work may well have contributed to right lateral epicondylitis lesion and he was prepared to accept the right forearm problem was work related and he thought further steroid injections would be considered. He was less inclined to accept the left lateral epicondylitis lesion as work related as there was insufficient work related biomechanical insult to induce that condition.
263 Dr Karna then thought the plaintiff was capable of self-paced clerical type duties on a rotating basis, with short term key boarding, writing and telephone work arguably was feasible. He noted whether or not there were super added psychogenic issues amplifying the plaintiff’s pain was unclear. He thought she was not fit for unrestricted pre-injury employment as that seemingly did involve substantial typing on an ongoing consistent basis. The plaintiff needed to be able to work in a capacity where she could alter her tasks and sustained forcible grip with either arm should be avoided.
264 Dr Karna did not think the plaintiff could do the jobs suggested in January 2009 of sales rep, retail buyer, importer/exporter and pet groomer as they presumably involved substantial manual use of the arms and he did not believe she was capable of it. Office based duties could be done provided there was a rotation.
265 Dr Karna suspected with further treatment the plaintiff’s lateral epicondylitis lesions would improve and in that context her work capacity would also improve. He thought some functional rehabilitation may also be of value. The only treatment he thought was appropriate was for her to see Dr Patrick, a rheumatologist, for steroid and blood injections. He then thought the plaintiff’s condition had not stabilised and he suspected the nature of the problem was such that improvement could be expected.
266 On review in August 2010, Dr Karna reported that when he first saw the plaintiff he made a specific note of the fact there were no neck complaints. Treating practitioners up until that point had also not instigated any treatment to the neck and on the first examination, neck movements were full and neurological examination normal.
267 The plaintiff told Dr Karna of the February 2010 cervical spine MRI. At the time of that investigation, the plaintiff had no neck pain. The investigation was done on the premise the plaintiff had arm pain which had proved refractory to steroid injection of the elbows.
268 Dr Karna noted since then, about two months ago, around June 2010, the plaintiff did develop neck pain with periodic sharp spasms of discomfort in the interscapular region. There was intermittent numbness of her arms involving all fingers. She had persisting elbow discomfort, more right sided, predominately in the lateral region but extending into the extensive forearm, more so right than left.
269 On examination, carpal tunnel provocation testing was negative. In terms of the right elbow there was a 10 degree loss of extension and some right lateral epicondylar tenderness to direct palpation, not made worse on that occasion by wrist extension. There were no features of medial epicondylitis of the right elbow.
270 The left elbow range of motion was preserved and there was no specific tenderness. Shoulder movements were full.
271 Neck movements were full in flexion and extension, but the plaintiff complained of difficulty with left and right lateral rotation and flexion at which time she developed electric shock like feelings going down the interscapular region for which she then adopted a very bizarre neck and shoulder posture at variable times throughout the examination.
272 However, upper limb reflexes were preserved and there were no upper motor neuron signs in the lower limbs. There was no sensory loss in the upper limbs but power could not be adequately examined because of the electric shock feelings. There was no neck spasm and no widespread light touch tenderness noted.
273 Dr Karna thought the MRI certainly showed evidence of C5-6 disc bulging which tended to be more central and C4-5 disc protrusion which tended to be more right sided.
274 Dr Karna noted since the last examination the plaintiff had also developed neck pain and some aspects of her presentation were somewhat bizarre and appeared histrionic in terms of her alleged shooting neck pains.
275 Dr Karna did not believe the cervical disc lesions, and arguably some of the cervical nerve root irritation with cervical referred pain could be linked to the plaintiff’s work. He noted chronologically it occurred well and truly out of the work context and noted at that the time she had the MRI in February she had no neck pain. He would find it difficult to believe that her elbow discomfort related to her neck problem wherein she had absolutely no neck pain until two months ago. He thought it was a coincidental problem and constitutional in origin. He did accept, however, the neck problem would impact upon the plaintiff’s ability to work pending further treatment.
276 On that second examination, Dr Karna thought the plaintiff still had features of a chronic right lateral epicondylitis lesion which could be traced back to her work but he thought the left had by and large resolved. He considered the plaintiff had clearly multilevel cervical disc disease with neural irritation with probably the C6 nerve roots bilaterally. Her presentation of intermittent neck discomfort in the manner she histrionically demonstrated was atypical for someone with cervical disc problems and he noted there were no obvious cervical sensory or reflex abnormalities in the upper limbs. He could not see features of autonomic dysfunction to satisfy diagnosis of a Regional Complex Pain Syndrome Type 1.
277 Dr Karna accepted the plaintiff’s right lateral epicondylitis lesion does have an impact on her ability to use her right arm in an unrestricted manner. He thought its duration was such that complete resolution would seem unlikely. Tasks involving repetitive force of all gripping and lifting, particularly with wrist extension on the right were likely to be problematic. He thought her neck problem which was constitutional would require further treatment.
278 Dr Karna thought the plaintiff’s right tennis elbow lesion would not preclude her from doing the majority of duties of sales assistant, general work, ticket sales person’s work, call centre operator work and brand ambassador, food promoter work and mystery shopper work but her neck problem which has ensued requires further management and with ongoing cervical referred pain, notwithstanding the histrionic examination, this would need to be sorted out before any true sustainable work capacity could be contemplated.
279 In March 2011 Dr Karna commented on the February 2008 ultrasound of the right elbow. He noted it identified a tear – the size of which bears no clinical relevance necessarily to the clinical presentation, not associated with any acute oedema, therefore reinforcing the notion that the problem was chronic. Beyond that he did not think any inflammation could be gleaned from the ultrasound report and he reiterated that the size of the alleged tear bears no clinical relevance to the general presentation of tennis elbow lesions. Indeed, many a patient often has incidental findings of tears of varying sizes without having symptoms.
280 The left elbow x-ray showed minor osteoarthritic changes allegedly as per the report. Dr Karna noted this is a degenerative osteoarthritic disease process and obviously has evolved over time but not to the point where it has produced symptoms or signs. He noted more advanced osteoarthritic change was often associated with some crepitus or joint restriction of movement or can lead to loose body formation with locking of the joint. He thought obviously the osteoarthritic changes noted on x-ray had been present for some time. He thought there was no evidence of an active left lateral epicondylitis lesion when he last reviewed the plaintiff.
281 Dr Karna was forwarded the physiotherapy treatment notes from July to December 2008 and asked to comment on the potential cervical injury. He concluded there was no evidence in the notes to suggest any specific definitive clinically reproducible objective neurological deficit. If that had been the case, the plaintiff most likely would have presented for definitive cervical radiological investigation and, as he previously noted, the MRI was not done because of neck pain but because of distal neurological symptoms. In that context throughout he had not noted any objective features of neurological deficit on the two examinations and commented upon the atypical presentation of electric shock like feeling which he could not describe to any specific neurological issue.
282 Dr Karna believed the consistent findings of allodynia and the physiotherapist’s comments regarding regional pain syndrome were more likely the basis of the plaintiff’s presentation where there was a psychogenically driven pain syndrome relevant. In conclusion he found it difficult to ascribe the primary structural musculoskeletal injury as the basis of her presentation wherein she presented with a good range of neck movement initially.
283 On the basis of the right tennis elbow lesion and that the plaintiff could work at her own pace, Dr Karna believed the jobs of customer service clerk, market research interviewer, call centre operator and tourist information officer were within her musculoskeletal capability.
284 Dr Karna was forwarded Dr Blombery’s report of August 2011. He noted that Dr Blombery’s clinical findings did not significantly differ from his own. Neither of them believed the plaintiff had a defined cervical injury and that her right lateral epicondylitis had substantially improved, albeit she continued to complain of symptoms.
285 Dr Karna was forwarded Dr Castle’s October 2011 report. He agreed with Dr Castle’s finding there was ongoing mild, right lateral epicondylitis lesion. By and large he agreed with Dr Castle that epicondylitis occurring in the context of typing duties is not universally accepted with a strong cause and effect relationship. However, in Dr Karna’s experience, typing duties certainly could have an impact in terms of worsening symptoms and aggravating symptomatology. He confirmed his view that studies had indicated carpal tunnel was not related to typing.
286 Dr Karna thought the notion of the plaintiff having a pain syndrome as suggested by Dr Castle was not unreasonable; suffice to say it has been driven by psychogenic and not structural physical factors.
287 Dr Patrick completed a questionnaire from CGU on 4 June 2009 in which he diagnosed right lateral epicondylitis.
288 Dr Lee, consultant physician in rehabilitation and pain medicine, examined the plaintiff in November 2009. The plaintiff then described a cramping pain in both forearms.
289 On examination, there were no signs of Complex Regional Pain Syndrome. There was some tenderness in the forearms and a full range of motion of the wrist.
290 Neurological examination was normal. Reflexes were symmetrical and brisk and the plaintiff denied any change or loss of sensation in her hands. There was no particular pain behaviour and most pain was with wrist flexion.
291 Dr Lee concluded tenderness was consistent with the myofascial pain condition and that wrist movement pain was not consistent with an active lateral epicondylitis.
292 Dr Lee thought the plaintiff had myofascial pain in the forearms, the duration and severity of which seemed to have exceeded natural recovery expected after cessation of work tasks.
293 When examined on this occasion, although the plaintiff had local tenderness provocative manoeuvres were negative for epicondylitis. It was noted there was a small tear on the ultrasound. Dr Lee thought there was insufficient scientific evidence for any association between lateral epicondylitis and typing.
294 Dr Lee then thought from a physical perspective, the plaintiff would be able to work to pre-injury duties if appropriately graduated but from a psychological point of view, a return to previous duties may be more difficult. Also he noted the plaintiff had been retrenched. He thought if she had a job to return to, the plaintiff would be able to return to work in some capacity as soon as practicable. A graduated return program would be appropriate with regular rest breaks.
295 Dr Lee thought the only reasonable restriction would be that which involves repetitive use of the arms or wrist which is probably as significant a psychological barrier as a physical one. He thought the plaintiff would be able to return on modified duties in the short term but unfortunately there was a significant psychological barrier. He noted the capacity to work with pain for several months prior to termination.
296 Dr Lee thought a pain management program might help facilitate the return to work and address fear avoidance and broaden the emphasis upon self-management. He diagnosed myofascial pain of both forearms with a previous diagnosis of lateral epicondylitis with which there were previous consistent ultrasound findings. He thought current examination features were no longer as consistent with that diagnosis, also noting ongoing pain despite absences from work activities since earlier in the year.
297 Dr Lee provided a supplementary report in December 2009. He concluded the plaintiff had lateral epicondylitis which had now developed into a chronic pain condition. Although she stated the onset of pain was at work and the conditions described at work, the conditions described at work alone, in his view, were not sufficient to explain the onset of the lateral epicondylitis. Dr Lee noted the lack of association between lateral epicondylitis and typing was supported by scientific evidence.
298 Dr Littlejohn, rheumatologist, examined the plaintiff in April 2011. She told him of the onset of right upper forearm pain in mid 2007 and an ultrasound which showed a tear. She subsequently favoured her left arm and then underwent left carpal tunnel surgery.
299 The plaintiff told Dr Littlejohn that the physiotherapist was wondering whether there might be neck pain. The plaintiff was referred to another doctor who arranged a scan which apparently showed a neck problem.
300 The plaintiff continued to have pain in the right and left upper quadrants and neck and described the neck and right side as the most problematic area. She also described headaches and over the last several months waking with numb hands.
301 The plaintiff told Dr Littlejohn she had been thinking of different work activities she could do including being a private investigator, but she had requested help for funding and that had not been followed up.
302 Dr Littlejohn had the ultrasound of the right elbow of February 2008 and the 2010 MRI scan of the cervical spine.
303 Dr Littlejohn thought the plaintiff exhibited no abnormal pain behaviour. On examination, there was global restriction of neck movement by about twenty per cent associated with discomfort and muscle tightness. There was normal range of elbow, wrist and shoulder movement and no muscle wasting evidence in the upper limbs.
304 The plaintiff was abnormally tender to gentle pressure of the front and back of her neck and also the mid trapezius and inner scapular regions as well as the upper outer forearm and first web space of the hand. She had significant discomfort in the upper forearms, particularly the right, when the muscles were tightened. She had normal and brisk reflexes bilaterally in the upper limbs. There was no neuro anatomical sensory change. Some fingers felt less sensitive but that was not in the anatomical distribution.
305 Dr Littlejohn thought the plaintiff had clinical features consistent with a chronic pain syndrome affecting her neck and both upper quadrants. That was characterised by persistent pain and sensory disturbance in a non neuro anatomical distribution. There was myofascial pain in the upper forearm.
306 The plaintiff also had anatomical evidence of degenerative disc disease in the low cervical spine but without clinical evidence of neuro anatomical correlates.
307 On ultrasound there was evidence of the tear of the common extensor tendon origin on the right.
308 Dr Littlejohn thought the plaintiff had clinical features of bilateral upper quadrant Regional Pain Syndrome characterised by regionalised pain, abnormal tenderness and other non neuro anatomical sensory symptoms. He thought the Regional Pain Syndrome was due to abnormal sensitivity within the pain system of the spinal cord and brain and in turn that had been influenced by emotional more than physical factors. He did not think the plaintiff’s work activities had caused her degenerative spinal disease and he thought psychological distress was the main cause for her Regional Pain Syndrome.
309 Dr Littlejohn did not think the plaintiff could return to pre-injury duties and hours due to her pain problem. She had a capacity for suitable employment with modified activity and reduced hours. He thought it would be best to return to alternative duties which did not involve the upper limbs in a repetitive fashion, involved rest periods through the day and avoid grasping and prolonged postural activity. He thought initially a return should be some hours a few days a week, building up tolerance and desensitisation occurs. He thought the main determinant in regard to the plaintiff’s recovery including return to work was psycho social factors.
310 Dr Littlejohn believed the plaintiff had a current capacity to work as an enquiry customer service officer, assuming she did not work in a constrained posture and did not require to remain for significant times at a computer interface. Working as a market research interviewer may be more difficult if the plaintiff was recording answers to survey questions manually or electronically in a constant manner.
311 Dr Littlejohn thought the job of call centre operator or help desk would be suitable assuming the plaintiff did not have persisting constrained postures or significant repetitive activity at a computer. He saw no problems working as a tourist information officer. He thought ticket seller would be suitable, although he anticipated it might have a lot of computer activities which could aggravate some of her symptoms. A rental sales person seemed to be within her capacity. He thought repetitive activities in a general clerk job may aggravate her symptoms and that would be unsuitable. Order clerk would be suitable, depending on the extent of constrained and repetitive activity. Sales representative would be suitable from a physical perspective. He thought the job of private investigator suggested by the plaintiff would be well within her physical capacity as with similar jobs.
312 Mr Damian Ireland, hand surgeon, examined the plaintiff in September 2013.
313 The plaintiff told him of the onset of right limb problems and later left carpal tunnel syndrome. She told him that she stopped work in December 2008 due to continuing symptoms affecting both upper extremities and due to neck pain and underwent surgery in 2012 in that regard.
314 The plaintiff complained of constant neck pain and bilateral shoulder pain and elbow pain, more severe on the right than the left.
315 On examination, there was full flexion of the right elbow and the plaintiff was unable to extend the last thirty degrees. There was generalised tenderness over the lateral aspect of the elbow anterior to the common extensor origin. Provocative lateral epicondylitis test was positive on the right. There was no swelling of the right hand and the test for tenosynovitis was normal.
316 There was a full range of active pain free motion of both shoulders.
317 On the left hand there was no evidence of motor or sensory compromise of the median nerve. There were no temperature or colour changes.
318 Mr Ireland diagnosed bilateral epicondylitis and could find no evidence of Chronic Regional Pain Syndrome. He thought the bilateral nature of the condition indicated an underlying developmental rather than traumatic origin. He thought it likely the nature of work had aggravated the underlying condition which would have developed regardless of the nature of the plaintiff’s work.
319 Mr Ireland considered the plaintiff presented with subjective symptoms and positive objective physical findings of bilateral epicondylitis confirmed on imaging. There was no evidence of tenosynovitis on the right. He thought the plaintiff continued to suffer from significant bilateral epicondylitis preventing her fully extending the elbows.
320 Mr Ireland considered with appropriate modification to her work station, the plaintiff would be able to return to work as a keyboard operator and telephone operator, the work station enabling her to type effectively with elbows semi flexed. He believed she could return under those conditions on a part time basis of say four hours a day, five days a week.
321 Mr Ireland noted lateral epicondylitis usually is a self limiting condition that eventually recovers spontaneously. As the plaintiff had continued to suffer from symptoms for seven years, that indicated the outcome was unlikely and he thought the limit on work would continue into the foreseeable future. With his restrictions he believed the plaintiff could work as a sales assistant, general sales and ticket seller. He thought it would be unlikely she could work as a call centre operator full time or even on a part time basis and he did not know what was required with a brand ambassador or mystery shopper.
322 Mr Ireland was then asked to comment on any carpal tunnel syndrome. The plaintiff did not complain to him of ongoing symptoms in that regard. Although she developed that syndrome during work, he thought the work described by her was not causative and did not represent a significant contributing factor to the development of the syndrome.
323 Based on the employer’s description of the plaintiff’s work duties, Mr Ireland thought it highly unlikely that had caused bilateral epicondylitis of the elbows or had been a significant contributing factor. For it to be so, the worker would have had to work for sustained periods with the elbow in full extension, which he noted was not the normal elbow posturing for keyboard work, which was usually done with the elbows either semi flexed or flexed to ninety degrees.
Psychiatric
324 Dr Das, consultant psychiatrist, examined the plaintiff on 7 January 2010. She told him of the gradual onset of intermittent bilateral forearm pain, more on the right than left since about mid 2007. There was a subsequent development of similar symptoms on the left wrist and forearm with carpal tunnel surgery.
325 Dr Das diagnosed an adjustment disorder with depressed mood of mild severity. He thought purely from a perspective of psychiatric condition the plaintiff could return to pre-injury duties and hours. He thought she should probably continue to see a psychologist over the next three months. He considered the plaintiff could return to work as and when she was certified fit in relation to her physical injury.
326 Dr Entwisle, psychiatrist, examined the plaintiff on 27 September 2010.
327 The plaintiff told him of the onset of intermittent bilateral forearm pain and a subsequent change in her employment. She continued to describe constant pain in both forearms and she also described problems in her neck.
328 The plaintiff described a pretty stressful childhood, with sexual and physical abuse. She had also suffered recurrent bouts of depression requiring treatment during her thirties with Prozac and Zoloft and had had psychological counselling. She had also had a violent first marriage and had a family history of psychiatric illness.
329 The plaintiff told Dr Entwisle her sleep was disturbed due to her depressive symptoms and pain.
330 Dr Entwisle thought the plaintiff had a vulnerable personality and her self esteem was poor. She continued to report experiences of pain in her arms and neck.
331 Dr Entwisle diagnosed a major depressive illness. He described it as a recurrent depressive illness aggravated by workplace injuries and a myofascial pain syndrome. Provided the plaintiff remained compliant with the psychiatric treatment taking Cymbalta, he thought no review of her capacity for work from a psychiatric perspective was required. He considered she had a psychiatric capacity for work for pre-injury duties and hours on modified or suitable duties.
332 Dr Entwisle thought it difficult to say whether the plaintiff’s experience of pain had been overtaken by psycho-social and prior psychiatric history factors, noting it was likely as time progressed, non work related factors would overtake those related to work. He thought best practice was a return to work and a focus on functional restoration.
333 Dr Nigel Strauss, psychiatrist, examined the plaintiff on 10 May 2011. She told him that in her work with the first defendant, she dealt with 25,000 products.
334 The plaintiff told Dr Strauss of the onset of cramping in both arms in about 2007. She described pain in both elbows, shoulder and neck pain.
335 Dr Strauss accepted the plaintiff developed some anxiety and depression secondary to her physical problems. He considered the most appropriate diagnosis was that of a chronic adjustment disorder with mixed anxiety and depressed mood secondary to her physical injuries. On the basis that the plaintiff’s physical injuries were work related, he considered her psychiatric reaction was also work related but he emphasised that the plaintiff was a vulnerable individual with a history of depression and not having coped well with her alleged physical injuries.
336 Dr Strauss thought the plaintiff had a capacity for employment and certainly from a psychiatric perspective was capable of at least light duties on a part time basis. He thought she was capable of sedentary work on at least a half time basis. He considered she should be taking anti depressants and should be seeing a psychologist and he strongly recommended pain management.
Surveillance
337 There was surveillance carried out and reports in relation thereto of 16 August and 14 September 2009, which were not of any particular significance.
Compensation documents
338 By letter dated 2 December 2010 CGU advised the plaintiff that it determined to reject her claim for weekly payments and medical and like expenses for her neck condition because it did not arise out of the course of her employment. That decision was based on an examination by Dr Karna, rheumatologist.
339 By letter dated 2 June 2011 the plaintiff was advised by CGU that from 3 September 2011 she was no longer entitled to weekly payments because they had been payable for a total of 130 weeks and she did not have any current work capacity.
Overview
340 Whilst there are a number of impairments involved in this application, I propose to deal first with the cervical spine.
341 Counsel for the defendants submitted this application must fail as there was not a compensable injury. However, it was conceded that if the cervical spine injury was a compensable injury, the pain and suffering consequences were serious. It was not conceded that the plaintiff suffered the requisite loss of earnings to be granted leave to bring proceedings for damages in that regard.[47]
[47]T129
Credit
342 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[48]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[48](2010) 31 VR 1 at paragraph [12]
343 I found the plaintiff to be a generally credible witness. She freely acknowledged she had not complained of neck pain until after the 2010 MRI scan. She was not aware until relatively recently of the relationship between her work duties and her increasing neck complaints.
Compensable injury
344 Counsel for the defendants submitted it should not be accepted there was a compensable injury to the plaintiff’s cervical spine given the lack of any report from the surgeon who operated in 2012 (Mr Wong?) as to causation or the plaintiff’s prognosis. This was described as an insurmountable problem for the plaintiff.[49]
[49]T121
345 In such circumstances, it was submitted the inference should be drawn that the opinion of the treating surgeon would not be favourable in relation to causation.
346 Further, it was submitted Dr Karna was the only medico-legal examiner who had the correct history of no neck pain until after the 2010 MRI scan and there was later a deterioration reflected in the altered symptoms he described in mid 2010 of interscapular spasm.
347 On the basis of that history, with the late onset of neck pain, Dr Karna found no causal relationship between the plaintiff’s neck condition and her work duties.
348 Although Dr Littlejohn had not obtained a particularly detailed history, he did not think the plaintiff’s work activities had caused degenerative spinal disease.[50]
[50]T129
349 It was submitted that other practitioners who were supportive of the link between the plaintiff’s neck condition and her work duties were told by the plaintiff that she had ongoing neck problems from the time of the work injury.[51]
[51]T120
350 It was submitted Dr Castle stood alone in his view that bilateral forearm pain emanated from the plaintiff’s cervical spine.
351 It was submitted there was no suggestion by Mr Brownbill in his report connecting the plaintiff’s forearm problems to her neck. He did not provide an objective analysis and a considered explanation as to how the change in symptoms had occurred from a patho-physiological point of view. He had also deferred to a rheumatologist in terms of the plaintiff’s limb symptoms.[52]
[52]T126
352 I accept however, that Mr Brownbill’s evidence, based on the correct history, was crucial in understanding the mechanism of the plaintiff’s neck injury and referred pain and dealt to a large extent with the absence of a report from the treating surgeon.
353 Mr Brownbill confirmed that his initial diagnosis was not based on an acceptance of continuous pain in the plaintiff’s neck and was consistent with the history given by her to him and ultimately at this hearing; namely, that in 2006, her neck was stiff and sore, her problems were predominantly right arm and later left arm related and it was not until after the MRI scan in February 2010 (at the time of which she had no neck pain) that she experienced the type of pain described to Dr Karna, namely of a sharp spasming nature in the interscapular region.
354 Mr Brownbill did in fact refer to the involvement of the plaintiff’s neck in her right forearm pain in his report.
355 Noting it was a complex system, on probability in addition to bilateral extensor tendonitis, assessment of which lay in the domain of rheumatologist, Mr Brownbill thought the plaintiff also suffered an aggravation of pre existing cervical spine degenerative changes giving rise to nerve root irritation contributing to right arm pain but without neurological abnormality on examination. He thought that work with the phone and neck flexion was a significant contributing factor to the plaintiff’s condition.
356 Mr Brownbill confirmed in cross-examination there was a two fold contribution to the plaintiff’s right forearm pain - that in a rheumatological sense and the pain coming from the neck.
357 Mr Brownbill explained there was also radiological support for the interscapular problems shown at the lower part of the plaintiff’s cervical spine.
358 In his view, the absence of neck pain at an earlier stage did not mitigate of itself against there being nerve root irritation and referred pain.
359 Mr Brownbill explained that a certain amount of time undertaking a work activity was not required before injury occurred. It depended on the person.
360 Whilst some histories given by the plaintiff were briefer that than others, she has not given examiners the impression of continuous neck pain and when she gave a more detailed history, it was in similar terms to that deposed to and given by her to Dr Karna and Mr Brownbill.
361 I accept that Professor Bittar was given an accurate, albeit brief, history. The plaintiff told him of initial forearm pain and the onset of neck pain in mid 2010. She also told him of use of a phone at work wedged between her ear and shoulder. With this history and given the 2010 MRI, he diagnosed cervical spondylosis to which work was a significant contributing factor
362 The plaintiff told Dr Castle of forearm pain and that she was later sent to Dr McCarthy who found a problem in her neck. The plaintiff also told Dr Castle that her employment required her to work with her neck flexed for standard periods of time and having to tuck the phone into her shoulder.
363 Given the structural abnormalities on the 2010 MRI scan of the cervical spine, in 2011, Dr Castle considered the plaintiff’s employment was a significant contributing factor to the development of her neck pain. He also thought the initial forearm problems were an early manifestation of the neck problem and as time had gone on, her neck problems had worsened and it became clear the pain came from the cervical spine.
364 The plaintiff simply told Dr Sutcliffe that after she was advised her persisting arm pain was related to her neck, she recalled many months at work with phone in the crook of her neck.
365 Dr Sutcliffe thought it more likely than not that there had been nerve root irritation on the right and left C6-7 level and to a lesser extent C4-5 that was the reason for persisting widespread upper limb pain and also a separate diagnosis of bilateral lateral epicondylitis.
366 The plaintiff gave no history to Dr Blombery of the onset of neck pain although on examination in April 2011, she complained of neck pain. Dr Blombery found bilateral extensor tendon injuries and also noted that previously asymptomatic changes in the cervical spine were made symptomatic by work.
367 Taking into account Mr Brownbill’s explanation of how the plaintiff’s neck problems related to her work duties, despite her late report of neck pain, and the views of all examiners, save for the rheumatologists, I am satisfied the plaintiff’s work duties were a cause of her present neck condition.
368 Accordingly, whilst liability was denied by the insurer for the cervical surgery, I am satisfied that the need for such surgery resulted from a neck injury in relation to which employment was a cause.
Loss of earning capacity
369 Having found a compensable injury and the narrative requirements of pain and suffering conceded by the defendants, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
370 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
371 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
372 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
373 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
374 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[53]
[53]See Barwon Spinners & Ors v Podolak (supra) at paragraph 70
375 I am therefore required to determine a “without injury” earnings figure.
376 In opening, counsel for the plaintiff noted the plaintiff was earning $915 gross per week or $47,590 per annum.[54] A figure around $50,000, taking into account yearly increases over the three year period, was suggested as an appropriate without injury earnings figure. Counsel indicated it was the plaintiff’s case that she had no capacity for suitable employment.
[54]T14
377 No alternate figure was put by counsel for the defendants, who noted that the current annual gross earnings for an employee in the plaintiff’s position had not increased from $47,000 since the plaintiff left that job.
378 The thrust of the defendants’ case in terms of the loss of earning capacity application was that the plaintiff could not establish any neck related impairment for employment was permanent, given the recent neck surgery in March 2012 and the lack of medical opinion as to the plaintiff’s prognosis.
379 Further it was submitted there was a failure on the part of the current general practitioner to delineate the consequences of the neck and arm injuries in his conclusion that the plaintiff was totally incapacitated for work.
380 The plaintiff maintains she is incapacitated for suitable employment due to both her neck and arm conditions.
381 There is however, limited medical opinion as to the condition of the plaintiff’s neck post surgery and her capacity for employment in the long term.
382 Dr Sutcliffe saw the plaintiff in December 2012, some nine months post surgery. She then thought the plaintiff had no capacity to perform work in a reliable or effective manner. However she thought the outcome of surgery was still was not clear. Further treatment would be required.
383 In summary, Dr Sutcliffe believed that further passage of time must occur before a definitive decision about the plaintiff’s residual employment capacity could be made, given the recent surgery. She thought the prognosis was generally poor.
384 Reporting in January 2013, Dr Pragastis thought the plaintiff’s multiple injuries resulted in an incapacity for work. He did not differentiate between the effect of the arm and neck injuries.
385 Professor Bittar reviewed the plaintiff in August 2012 following surgery. He thought the prognosis was relatively poor and despite surgery, the plaintiff remained significantly symptomatic and incapacitated.
386 Professor Bittar considered the plaintiff’s residual employment capacity was negligible but he thought it would be prudent to wait until a year post surgery before commenting on this issue long term. On the basis of her response to treatment to date, he considered the plaintiff’s prognosis was fairly poor.
387 Following examination in June 2013, Dr Gassin thought the plaintiff was not able to partake in pre-injury employment because of her neck condition. He thought the best way to ascertain her capacity was for a trial of work on light, non physical duties for a few hours a day and then assess her situation. In the future he expected her to suffer from significant pain and associated disability resulting from her neck injury on a permanent basis.
388 On this limited medical evidence, I cannot be satisfied of the permanency of any loss of earning capacity relating to the plaintiff neck condition. Obviously, in these circumstances, the plaintiff is unable to establish the requisite loss of 40 per cent on a permanent basis.
389 Accordingly, the application in relation to loss of earning capacity relating to the cervical spine is dismissed.
390 The defendants having conceded the plaintiff is able to bring proceedings for pain and suffering on a finding of a compensable injury in relation to the cervical spine, I am not required to consider the pain and suffering applications relating to the impairment to the upper limbs and psychiatric impairment.
391 I accept that the plaintiff has suffered ongoing arm problems since 2008, more significant on the right, diagnosed as lateral epicondylitis. Most medical examiners have treated the plaintiff or seen her for medico-legal purposes considered these conditions to be work related.
392 In very limited submissions in relation to this issue, counsel for the plaintiff submitted that the plaintiff’s previous work tasks would now be beyond her due to her elbow and arm symptoms.[55]
[55]T159
393 However, I am not satisfied that the plaintiff has established the requisite loss of earning capacity of 40 per cent in relation to her upper limb impairments.
394 Although the plaintiff had ongoing arm problems following injury at work, she retained a capacity to work full time as a sales representative.
395 The plaintiff did not cease work because her arm injuries. She ceased work when she was made redundant. In her own correspondence, the plaintiff expressed an intention to continue and manage in her work as a sales representative.[56]
[56]Letter to the first defendant dated 5 January 2009
396 The plaintiff has not attempted a return to work or undergone any further retraining, although she has taken some steps in this regard.
397 It was not suggested there was a deterioration in the plaintiff’s forearm pain since ceasing work, but a continuation thereof requiring significant medication, albeit conceded Dr Pragastis did not explain whether this medication was for the plaintiff’s neck or arms.[57] Otherwise, there has been very little treatment since 2008-2009.
[57]T160
398 As mentioned earlier, Dr Pragastis found a total incapacity for employment on the basis of multiple injuries not separating any incapacity due to arm pain from the plaintiff’s neck condition.
399 Following recent examination in June 2013, Dr Gassin, who had been treating the plaintiff in 2008 for her upper limb injuries, thought she was not able to partake in any pre-injury employment due to her neck injury. He did not comment on any incapacity relating to her upper limbs.
400 Similarly, Professor Bittar’s focus was on the plaintiff’s neck condition. In 2011, whilst diagnosing bilateral extensor tendonitis, he did not comment on the plaintiff’s work capacity relating to that condition. In that regard, Mr Brownbill reached a similar diagnosis, concluding that both that condition and aggravation of degenerative changes in the cervical spine would prevent the plaintiff working.
401 Dr Castle, in 2011, thought main problem then preventing the plaintiff returning to work was the persistent syndrome due to her upper limb and cervical spine injuries, not addressing each condition separately.
402 In 2013, Dr Sutcliffe thought there was no capacity to undertake pre-injury employment as a result of “the injuries” sustained.
403 In 2011, Dr Karna thought the plaintiff had the capacity to do range of jobs with her right elbow at her own pace, including call centre officer and customer service office. That year, Dr Littlejohn also thought the plaintiff had a capacity for suitable employment with modified activity and reduced hours- the main determinant in regard to recovery, including return to work, being psychosocial factors.
404 Mr Ireland, in September 2013, thought the plaintiff could return to keyboard work with appropriate modifications to her work station with a return to work four hours per day, five days per week.
405 Taking into account all the evidence, I am not satisfied the plaintiff has suffered a 40 per cent loss of earning capacity relating to her arm condition given her capacity for work at the time she was made redundant, the lack of evidence of any deterioration since that time, the lack of ongoing treatment and the recent medical opinion as to plaintiff’s capacity for employment in light of her arm condition.
406 Accordingly, the plaintiff’s application for leave to bring proceedings for damages for loss of earning capacity in relation to her arm condition is also dismissed.
407 Further, I am not satisfied the plaintiff has suffered the requisite loss of earning capacity due to any psychiatric impairment.
408 I am not satisfied that any psychiatric impairment suffered by the plaintiff is “severe”.
409 Whilst the plaintiff continues to be prescribed antidepressant medication, she has never been referred for psychiatric treatment. She initially underwent counselling from Dale Tyler, who has not provided a report. Later counselling from May 2011 has been provided by Mr Warner, who did not express a view as to the plaintiff’s current work capacity in his 2013 report.
410 Medico-legal opinion as to the plaintiff’s current work capacity is now somewhat outdated.
411 In 2010, Dr Entwisle thought from a psychiatric perspective, the plaintiff had the capacity to undertake the employment options of sales representative, retail buyer, pet groomer and importer/exporter.
412 Dr Weisman, in June 2011, despite having found the plaintiff was suffering from moderate mixed, reactive work-related psychological, emotional and behavioural symptoms, then believed she had at least a partial capacity for suitable employment and potentially a full capacity for suitable duties and that she required intensive retraining.
413 Dr Strauss, in 2011, thought, from a purely psychiatric point of view, the plaintiff was capable of sedentary work on at least a half-time basis.
414 I am not satisfied on the very limited evidence available as to this issue that the plaintiff has suffered a permanent loss of earning capacity of 40 per cent based on any psychiatric impairment. Accordingly, her application in that regard is also dismissed.
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