Law v VWA
[2024] VCC 1318
•29 August 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05402
| Kathleen Law | Plaintiff |
| v | |
| Victorian Workcover Authority | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 25 June 2024 | |
DATE OF JUDGMENT: | 29 August 2024 | |
CASE MAY BE CITED AS: | Law v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1318 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE COMPENSATION
Catchwords: Serious injury application - shoulder injury – subsequent psychiatric injury - whether incapacity for work caused by shoulder injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Dressing v Porter [2006] VSCA 2015; Acir v Frosster [2009] VSC 454
Judgment: Plaintiff’s application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley SC with Ms A Bannon | Fortitude Legal |
| For the Defendant | Mr S Smith KC with Ms K Manning | Hall and Willcox |
HER HONOUR:
1 Ms Law applies for leave to commence common law proceedings for pain and suffering damages pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013.
2 She alleges she has sustained a right shoulder injury during the course of her employment with Spotless Facility Services.
3 The law is not in dispute in this case. Ms Law must prove she has a permanent impairment or loss of a body function, the consequences of which, when judged by comparison with other cases in the range of possible impairments or losses of body functions, may fairly be described as more than significant or marked and as being at least very considerable.
Issues
4 The issues in this case are:
(a) What limitations and restrictions derive from her shoulder injury; and
(b) Whether the consequences of the shoulder injury meet the test of being at least very considerable.
5 For the reasons that follow, I am not satisfied that Ms Law’s consequences meet the required test for serious injury and therefore her application is dismissed.
Background
6 Ms Law left school in year 10 and held various jobs before starting in the kitchen and coffee shop of Bendigo Base Hospital in 1995.
7 She had two children. In 2000 when pregnant with her third child, her partner committed suicide and she had a psychiatric reaction at that time, requiring counselling and anti-depressant medication for about twelve months. However, she says she got back to work within a short time.
8 In 2013 she had a right knee injury that required about six months off work. In 2016 she had a hysterectomy and, in the aftermath of that, resumed taking anti-depressant medication, which she remained on at the time of her injury.
9 In 2017 the catering services at the hospital were taken over by Spotless Facility Services, which then became her employer.
10 In 2018 Ms Law had a gastric sleeve operation and lost a significant amount of weight.
11 She had no prior history of right shoulder pain or restriction.
The Trolley Incident
12 On 6 July 2021 Ms Law says a co-worker crashed a fully-loaded stores trolley into her from behind. She felt immediate pain in the back of her head, her low back and calf. She reported the incident and attended the Emergency Department of Bendigo Base Hospital. That attendance does not record an injury to the shoulder.
13 She says the following day she was sore all over, including in her right shoulder.
14 On 15 July 2021 she attended her general practitioner, Dr Barua, who noted pain in many areas, including her shoulder, and reported that she had been struck on the back, shoulder and lower limb and felt like she had been “hit by a bus”.[1] She was given a certificate of incapacity for a week.
[1] Plaintiff’s Court Book (“PCB”) 73
15 On 20 July 2021 she lodged a Workcover claim which was accepted.
Subsequent medical treatment
16 On 22 July 2021 Ms Law again attended Dr Barua who arranged an x-ray of the right shoulder. This showed tendinosis of the long head of the biceps and bursitis of the subacromial/subdeltoid with bunching on abduction.[2]
[2] PCB 21
17 In August 2021 she started seeing physiotherapist Casey Livingston. She saw Ms Livingston between 3 August 2021 and 1 October 2021. Ms Livingston reported that Ms Law attended for treatment of her right shoulder, and that on assessment she had restriction in her right shoulder range due to pain and apprehension to movement and decreased shoulder strength globally. She reported that Ms Law progressed well with physiotherapy and was completing a daily home exercise and hydrotherapy program. At that point Ms Livingston expected Ms Law would achieve pre-injury function levels.
18 In September 2021 Ms Law attended her general practitioner Dr Khouzad and reported that her right shoulder was still sore. Dr Khouzad noted that she was using her other arm “for work”. [3] It is unclear exactly when Ms Law initially attempted to return to work. In her first affidavit she suggests that after having a cortisone injection in November 2021, she attempted to return to work in the laundry. In her third affidavit she says she attempted to return to work in October 2022, which she corrected in oral evidence to be October 2021. In the referral letter from Dr Khouzad to Dr Locke, Dr Khouzad notes that Ms Law was working 4 days per week, 4 hours per day. A return to work plan dated 17 September 2021 noted these work hours with restrictions of 3kg for lifting, no lifting above the shoulders, avoiding repetitive movement of the right arm and taking breaks as needed.[4] It is not clear whether Ms Law actually returned to work at that time, or just attempted to return to work.
[3] PCB 56
[4] PCB 49
19 It appears that if she did return to work, she was not there for long. She says she was “not able to continue” and that the work environment was “unpleasant and hostile”.[5] If she actually returned to work in October 2021, albeit for a short time, it is not clear why she was unable to continue. Her only evidence was that the work environment was unpleasant. It is not clear that she was unable to continue to work at that time because of anything to do with her shoulder.
[5] PCB 79
20 Ms Law attended Dr Locke on 5 October 2021. He took a history that she had been hit from behind and experienced immediate pain in her head, back and gluteal region and that the next day she had pain in her shoulder radiating up to the right side of her neck and down her arm into her right hand. He noted that she considered her pain was improving and that osteopathy was helpful. She reported pain on the anterior aspect of her shoulder, with superior and lateral pain as well. The pain was burning, aching and throbbing and was present all day. Dr Locke noted that she had night pain initially, but this had started to decrease. She reported no morning stiffness but had worse pain when working in the laundry, washing her hair, doing her bra up and shaving her right arm. Heat and naprosyn relieved her pain. She felt some weakness in her right arm.
21 Dr Locke diagnosed supraspinatus tendinopathy. He administered a subacromial bursa injection of lignocaine and celestone chronodose on 8 November 2021. Immediately after the injection Ms Law reported a significant decrease in symptoms.
22 In November 2021 Ms Law was referred for physiotherapy assessment with Craig Mansfield.
23 Dr Locke recorded that on review in December 2021 Ms Law had a very significant decrease in her mood with a PHQ9 score of 26 indicating a severely depressed mood. He noted her current pain was 4/10 and considered she should continue with shoulder rehabilitation. If there was no change in her shoulder pain, he noted that further injection should be considered. He has not recorded her range of motion, but has included results of myotesting for strength deficits in different planes.
24 Ms Law’s mood significantly improved and her PHQ9 score was 8 in January 2022. Dr Locke last saw her on 17 January 2022 and noted she had a very significant improvement in all planes of movement and that her abduction strength was continuing to improve with physiotherapy. She reported pain of 3/10. She had a 17% deficit in abduction strength. He considered her recovery to be within normal timeframes for expected resolution. On 30 May 2022 Dr Khouzad noted that Ms Law’s shoulder and neck pain had improved significantly with physiotherapy and regular exercise. She noted that the most prominent symptoms for Ms Law at that time were depression and anxiety which were still distressing her. She noted that “the patient’s mental health is going to be of most importance”.[6]
[6] PCB 36
25 Her treating physiotherapist Mr Mansfield, in his report dated June 2022, noted improvement in Ms Law’s symptoms with “minimal shoulder symptoms” and noted that she had been “essentially performing her pre-injury duties on the ward including pushing loaded trolleys and lifting trays on/off the trolleys.”[7] He noted that Ms Law had requested to increase her hours and duties on the ward as she felt she was improving and managing well with her current hours of 9 x 4 hours per fortnight. She had been performing her home exercise program fairly regularly and was in good spirits generally.
[7] PCB 58
26 Mr Mansfield continued his treatment with Ms Law until 2 December 2022. He noted that on 31 August 2022 Ms Law was cleared for full hours and duties in her employment and that had not changed at the time of his last assessment in December. He considered she could continue her work for the foreseeable future but would not be able to perform duties involving heavy or repetitive manual labour with her right arm. He noted that the size of the supraspinatus tear could increase with time but the function of the shoulder and the symptoms were not well correlated with the image findings or the extent of the tear.[8]
[8] PCB 60
27 He noted her stress and anxiety and the negative impact of those on her recovery. He considered she would likely continue to have some ongoing symptoms of varying levels, particularly low to moderate levels of pain and some weakness in the shoulder.
28 Ms Law did not continue to receive physiotherapy. There was some suggestion in her evidence that this was because of the financial cost of physiotherapy. However, on cross examination she conceded that she has paid for Bowen therapy and regular massage out of pocket and has not yet claimed those expenses from WorkCover because she is “not very good with paperwork”.[9] I am not persuaded that she ceased physiotherapy because of any financial impediment and the more likely explanation is that she preferred alternative therapies.[10]
[9] Transcript (“T”) 31 Line (“L”) 20
[10] T 45 L 19
29 Ms Law says she continues to have Bowen therapy and massage.
Return to work
30 In April 2022 Ms Law returned to work (possibly for the second time since the trolley incident) on light duties and reduced hours. Her duties gradually increased and she went back to work pushing trolleys. She says that although she did serve meals from trolleys, she did not push the full trolleys into the oven, and did not replace or remove trays over shoulder height. Most of the time she was doing the morning and afternoon tea service which required her to push a smaller and lighter trolley.
31 Once she resumed normal hours she did not push the larger trolleys and broke down larger loads to smaller trolleys so she could manage.
32 She says in her affidavit of 23 May 2023 that she found moving trolleys very difficult and painful.
33 She did not recall telling her physiotherapist, Mr Mansfield, that she had minimal shoulder symptoms as at June 2022 and thought he had got that wrong.[11]
[11] T 41 L 19
34 She accepted that her shoulder had improved after the initial trolley incident but said “it’s still really bad” and that when she attended Mr Mansfield she had still had “a lot of pain” with her shoulder.[12]
[12] T 42 L 1-10
35 She said she had wanted more hours, as recorded by Mr Mansfield, because she wanted to be back at work. She said that she wanted to go back “because I loved my job and I needed to go”.[13] She said that she would “suck it up” meaning she would cope with the pain because she wanted to work and she thought she would stay in that job until she retired.[14]
[13] T 46 L 14
[14] T 70 L 21-31
36 She accepted that she was cleared by Mr Mansfield in August 2022 for normal hours and work duties with the following restrictions:[15]
(a) Maximum lifting above shoulder height – 4kg right arm, 6 kg combined;
(b) Limit repetitive lifting above shoulder level; and
(c) Spread out tasks involving elevating one arm above shoulder height.
[15] T 66 L 12-27
37 She says she experienced “bullying and harassment from management at work because of my injury and ceased work in October 2022”.[16] She has made a subsequent WorkCover claim for the bullying and harassment which has been accepted.
[16] PCB 14
38 She accepted in cross examination that her mental health issues from what she perceived as bullying and harassment caused her to cease work in October 2022. She said that the day she left it was because of bullying and harassment but “the reason why is because I haven’t been doing my full duties back at work”.[17]
[17] T 40 L 28-31
39 She said that, after her return to work, she was not docking the trolley, she was not taking the loaded food trolley to the wards, she could not reach high so she took the trays from the middle of the trolley where she could manage, but she mostly did tea and coffee.[18] She said reaching high or moving the fully loaded trolley hurt her shoulder.[19]
[18] T 70
[19] T 70 L 15
40 When asked how she was coping with the lighter duties at work she said “I’m just in constant pain and like, it aches and throbs all the time”.[20] It was difficult to determine, despite clarification being sought, as to whether she was using the present tense to refer to the period prior to ceasing work, or whether that was a description of her current circumstances, or both.
[20] T 71 L 25-26
41 Counsel submitted that, although she ceased work because of bullying and harassment, she was struggling with her duties and would, in any event, have likely been unable to continue to work.
Reliability of the plaintiff
42 In January 2022 Dr Locke recorded that she had pain that was 3 /10. In May 2022 Dr Khouzad recorded Ms Law’s pain had significantly improved. In June 2022 Mr Mansfield recorded that her pain was “minimal”.[21] In December 2022 he noted that she would likely continue to have mild to moderate pain. Dr Locke, Dr Khouzad and Mr Mansfield all report a significant improvement in pain and a capacity for work.
[21] PCB 58
43 Ms Law denies that she told Mr Mansfield that she had minimal symptoms or was improving. She said she wanted extra work hours because she wanted to get back to work but she “would say” that she told Mr Mansfield that she “had to suffer the consequences” when she got home.[22]
[22] T 70 L17-18
44 She denies she told Dr Locke that her pain was 3/10 and says that although the pain improved in the period after the accident happened, it has always been and remains “constantly sore”.[23]
[23] T37 L 12
45 However, given that these were her treating health professionals who made contemporaneous notes, I consider on the balance of probabilities that they accurately recorded Ms Law’s presentation at the time. Looking back now, in the context of everything that has happened, it may be that Ms Law’s recollection is that she did not achieve the level of improvement and function recorded. However it is remarkable that two physiotherapists, her general practitioner and her treating physician all formed a fairly consistent impression of significant improvement, reduced pain and normal progress toward resolution if, as the plaintiff says, that was not the case.
46 I therefore consider Ms Law’s evidence about her level of pain and restrictions essentially remaining unchanged after some initial improvement is unreliable.
47 I do not consider that Ms Law was attempting to mislead the court, or to bolster her case. Rather I consider that her recollection that her shoulder has been consistently painful at its current level since the accident is not accurate.
48 I am fortified in my opinion that Ms Law’s evidence about her level of pain and restriction is not accurate by the opinion of Dr Saxby who examined Ms Law on 12 August 2021 and a year later in July 2022. In 2021 he noted that Ms Law presented with diffuse aches in the soft tissue of the shoulder, back and left leg. He diagnosed a soft tissue injury caused by a crush injury, and considered that she had significantly improved and expected her should continue to improve. He recommended physiotherapy and myotherapy for a further month or two as required, and anti-inflammatories and analgesia as required.
49 On 28 July 2022 Dr Saxby re-examined Ms Law and prepared a further report dated 11 August 2022.[24]
[24] Defendant’s Court Book (“DCB”) 16
50 On that occasion he noted she had come under the care of Dr Locke as she had ongoing pain and difficulty with lifting when using her shoulder. He noted that she had received some treatment and eventually made a recovery though “it has been quite prolonged”.[25] He noted she had recently returned to work in her usual capacity.
[25] DCB 18
51 He found no obvious wasting and the right shoulder had the same range of motion as the left shoulder except in relation to forward flexion where it was reduced by 10 degrees and abduction where it was reduced by 20 degrees.
52 His opinion at that time was that Ms Law had sustained a soft tissue injury due to crushing which had resolved. He noted a pre-existing degenerative change in her lumbar and cervical spine as well as right shoulder rotator cuff tendinopathy bursitis. He did not consider those conditions were caused by the crush injury.
53 He said the clinical findings and x-ray findings were consistent with mild degenerative change which would be consistent with her age. He considered her fit to return to pre-injury work and hours, and noted that her only modification was that she broke down large loads onto smaller trollies and did not push the large trolleys.
54 He noted that there were psychological issues associated with her claim which may be impacting her recovery, but opined that “at this stage she has recovered from her work-related injury and has returned to work”.[26]
[26] DCB 26
55 Dr Saxby’s findings in June 2022 are consistent with the findings of Mr Mansfield, Dr Locke and Dr Khouzad in 2022.
Consequences
Shoulder condition prior to return to work
56 Having regard to all the evidence, including the reports of the treating general practitioner, treating physician and physiotherapists, to which I give significant weight, I conclude that Ms Law’s shoulder had significantly improved and her pain had substantially reduced by the time she returned to work in April 2022.
57 On the evidence before me, I am satisfied that at the time Ms Law returned to work she had a limited restriction in her range of movement as recorded by Dr Saxby, a mild loss of abduction strength which was improving, as reported by Dr Locke, and some pain, that was described as “minimal” by Mr Mansfield.[27] She was responding well to physiotherapy and continuing to improve, such that by August 2022 she had sought and obtained a return to fulltime hours and duties with modest restrictions.
[27] PCB 58
58 This represents the pain and restrictions which I am satisfied were caused by the trolley incident and therefore represents Ms Law’s shoulder injury for the purposes of this application.
Cessation of work
59 This picture is very different from her presentation after she ceased work.
60 In her report dated 23 April 2024 Dr Khouzad opined that Ms Law did not have any capacity for pre-injury work due to both her mental health issues and her right shoulder pain. Dr Khouzad noted Ms Law’s ongoing complaints of pain and ache in the back of her head, shoulder and upper arm, and that right arm abduction was painful which caused difficulty with fastening a seatbelt, hanging clothes on the line and mowing the lawn. Dr Khouzad noted her shoulder also impacted her sleep.
61 Dr Khouzad considered Ms Law was currently unfit for her pre-injury duties because of both her mental health and her shoulder pain.
62 However Dr Khouzad does not explain why or how Ms Law was fit for her pre-injury duties in 2022 but is no longer fit for those duties in 2024 due to her shoulder. Dr Khouzad’s opinion in 2022 was that Ms Law “might” need ongoing physiotherapy and rehabilitation but that her shoulder pain and neck pain had significantly improved.[28] At that time Dr Khouzad considered Ms Law’s mental health was “of most importance”.[29]
[28] PCB 36
[29] DCB 6
63 There is no explanation in Dr Khouzad’s report why Ms Law’s shoulder pain and restrictions arising from the workplace accident now preclude her from employment.
64 Dr Khouzad’s failure to explain why Ms Law’s shoulder injury prevents her from working in 2024 but did not prevent her from working in 2022 means I am not satisfied that her opinion supports the proposition that Ms Law’s shoulder injury is a significant factor in her ceasing work or now being unable to work.
65 No medico-legal doctor examined Ms Law both prior to resuming work in April 2022, and after leaving work in October 2022.
66 Dr Westh examined Ms Law for medico legal purposes on 27 February 2024.
67 He recorded her instructions that she had constant pain in her right shoulder front and back with pain into the right side of the trapezius muscle and her neck. He reported the pain as varying between 4/10 and 7/10. He noted that she can undo jars and “is okay with overhead activities”.[30] He noted her sleep is interrupted mainly by stress, with her shoulder “only minimally impacting her sleep”.[31]
[30] PCB 67
[31] PCB 67
68 He diagnosed a “likely” soft tissue injury involving her cervical spine, right scapular and shoulder regions, associated with a significant psychological illness.[32]
[32] PCB 68
69 Dr Westh noted ongoing pain with associated restricted range of movement. The only range of movement he records is “right and left lateral flexion as 20 degrees/20 degrees” and “right and left rotation was 40 degrees/40 degrees”.[33]
[33] PCB 67
70 Given that his measurements do not appear to be the same measurements recorded by other experts - for example he reported lateral flexion when others have recorded forward flexion, and right and left rotation, when others have recorded external and internal rotation, I do not think an appropriate comparison can be made between his measurements and the measurements reported by other experts. However I note that in the two measurements he has reported, there is no difference between the right and the left sides.
71 He opined that Ms Law’s capacity for employment is restricted as a consequence of her physical injury and impairment to her right shoulder, but did not opine on what those restrictions are or what capacity for employment she has.
72 Dr Westh is either not aware of, or does not grapple with, the medical evidence that shows an improvement of her condition in the eighteen months after the trolley incident and then the worsening of her condition after she sustained a psychological injury at work. His opinion is based on an assessment of her impairment as at the date he saw her on 27 February 2024. His opinion is based on her instructions about the constant level of her pain and restrictions which, as set out above, are not reliable. For that reason I give little weight to his attribution of the trolley incident as the cause of her current work incapacity.
73 Orthopaedic surgeon Dr Menz examined Ms Law on 26 March 2024.
74 Mr Menz diagnosed a right shoulder partial thickness supraspinatus tear with subacromial bursitis. He considered her condition had reached maximum medical improvement and that her condition will continued unchanged.[34]
[34] DCB 44
75 On clinical examination he noted full range of pain free movement in the left shoulder and the limitation on range of movement in the right shoulder recorded in the table below.[35]
[35] See combined table at Paragraph 85
76 He noted the ultrasound of 23 July 2021 showed mild degenerative changes which would have pre-dated the incident.
77 Dr Menz noted that Ms Law rated her current pain as 6/10 on all occasions.
78 He diagnosed a mild-to-moderate soft tissue injury to Ms Law’s shoulder joint which “should have” resolved within three months.[36] He did not consider her ongoing pain and restrictions were consistent with the clinical course taken in regard to the injury.[37]
[36] DCB 43
[37] DCB 43
79 Dr Menz’s opinion that Ms Law had a mild to moderate soft tissue injury that should have resolved is generally consistent with the contemporaneous reports of her treating health practitioners that her pain and restrictions significantly improved after the trolley incident.
80 His opinion that her ongoing pain and restrictions were not consistent with the clinical course taken acknowledges that her clinical course after the injury was of steady, albeit slow improvement, that is inconsistent with her current presentation.
81 Although it is generally not helpful for experts to opine about what “would have happened” without considering the evidence about what actually happened, in this case Dr Menz’s opinion about what “would have happened” accords, in broad terms, with what did happen.
82 Both Dr Menz and Dr Westh diagnosed a soft tissue injury. Although I am not satisfied on the evidence that the injury completely resolved, as that is not consistent with contemporaneous records or Ms Law’s evidence, I am satisfied that the injury significantly improved prior to Ms Law’s return to work.
83 There is no evidence that the shoulder injury deteriorated during the employment. Ms Law does not say that her shoulder became more painful or her movements more restricted during the employment. Her assessment with Mr Mansfield in July 2022 and December 2022 does not record any deterioration in movement or pain levels, but notes that she was coping with her work and was seeking fulltime work and duties.
84 Dr Boffa, occupational and environmental physician, examined Ms Law on 31 January 2023.
85 He noted multilevel cervical and lumbar spondylosis on x-ray dated 22 July 2021.
86 An ultrasound on 16 February 2022 showed a partial thickness supraspinatus tendon tear. He noted that Ms Law had not had surgery, but attended Bowen therapy 1-2 times fortnightly, and took Panadol three times a week as required for pain.
87 His measurements are as recorded in the table below.[38] He considered her condition was stable and unlikely to improve in the foreseeable future.
[38] See combined table at Paragraph 85
88 On the evidence Ms Law’s restrictions in movement have increased since ceasing work as shown in the table below:
Plane of movement
Dr Saxby
11 August 2022
Dr Boffa
1 February 2023
Mr Menz
10 April 2024
Forward Flexion
170
145
120
Extension
40
40
10
Abduction
160
100
110
Adduction
40
20
Not reported
External rotation
80
50
80
Internal rotation
80
30
20
89 There is no explanation in the medical material as to why Ms Law’s range of movement became more restricted after she ceased work in October 2022.
90 There is, however a recognition by a number of medical treaters, including her general practitioner, that her predominant debilitating issue is her psychiatric state.
91 Ms Law gave evidence that she did not know whether, in the absence of the bullying and harassment that caused her to cease work, she would have been able to continue to work because of the difficulty she was experiencing with her shoulder.
92 She said in evidence that the bullying and harassment “did stress me out at the time but it was my shoulder that it was all about”.[39]This significantly understates the impact of the perceived bullying and harassment on her work capacity.
[39] T 53 L 25-26
93 Psychiatrist Clayton Smith recorded in February 2024 that
“Ms Law had a right shoulder injury in 2020. She was off work for 18 months and returned to work in April 2022. She said she had problems with WorkCover during her shoulder injury and was bullied by her manager on her return to work. She said she was bullied throughout her original shoulder claim. She said her manager would pull her into the office with other people and attack her about returning to work and put her in jobs that she could not do, such as being put in the laundry where she said she reinjured her shoulder. On 6 October 2022 she received an angry phone call from her manager giving her instructions. She said her manager rang three times, accusing her of various misdeeds. She said her manager was on the phone so loud that everyone in the tearoom could hear her. Ms Law believes her manager was not coping with the job and taking it out on her. She said she had reached a breaking point and told her manger she could not do this anymore and that she had had enough, left work and called her doctor. She felt nauseated and panicky. She saw her psychologist and doctor soon after. She said that leading up to the phone call, she was still happy at work, although things have not been normal since her shoulder injury. She said her mental health was good leading up to the phone call.”[40]
[40] DCB 30-31
94 He noted that Ms Law was tearful at losing her job, describing it as “my life. I loved it and the people around me”.[41]
[41] DCB 32
95 Dr Smith diagnosed a persistent depressive disorder that was caused by a new adjustment disorder that had progressed. He considered it was of moderate severity with occasional fluctuations and marginal improvements in her motivation since Christmas and that suicidal thoughts have resolved.
96 He considered she had no work capacity from a psychiatric perspective, that she was too anxious to return to her usual workplace and that symptoms of her depressive disorder precluded her from her pre-injury duties and hours at a new workplace or new employer.
97 He noted that Ms Law had worked at the same workplace for 28 years and had developed an acute aversion to the workplace.
98 On her own evidence, Ms Law became overwhelmed by the perceived bullying and harassment to the point of being unable to cope with work in October 2022. It is apparent on the evidence that her psychiatric reaction to this event has been very significant, resulting in feelings of suicidality, lack of motivation and an inability to get out of bed for a period of time.
99 She has developed an intense response to her former workplace, to the point that she feels anxious even driving past it, and cannot attend, notwithstanding that she had loved working there for more than two decades and loved her colleagues.
100 I am satisfied that Ms Law’s experience of bullying and harassment was the immediate catalyst for her stopping work. Of course, this does not mean that her shoulder impairment could not also be a cause of her stopping work, and does not mean that the shoulder impairment, independent of any psychiatric injury could have resulted in her incapacity for work.
101 However looking at all of the evidence, I cannot be satisfied that the shoulder injury is a material cause of Ms Law’s inability to work. On the balance of probabilities, her shoulder injury caused her a minor reduced range of movement, a minor loss of abduction strength which was continuing to improve, and a relatively modest degree of pain that required over-the-counter analgesia around three times a week, as reported to Dr Boffa.
102 I accept that her shoulder injury caused and would continue to cause some restriction in her work capacity, and these restrictions are, as outlined earlier, that she cannot undertake heavy and repetitive lifting over shoulder height of more than 4kg. On the evidence it is apparent that she was able to work full time and undertake full duties with these relatively minor restrictions.
103 The case is not put on the basis that, once she returned to work, the work caused a subsequent aggravation or injury. Rather Ms Law’s claim is that the trolley incident was the cause of the current condition in her shoulder.
104 The limitations on her work capacity that I am satisfied were caused by the shoulder injury arising from the trolley accident, being restrictions on heavy and repetitive lifting, are not sufficient to prevent her from working.
105 I do not accept as reliable her evidence that, regardless of her psychiatric injury she may have been unable to continue to work. This is not consistent with her seeking increased hours in August 2022 and returning to full pre-injury hours at that time.
106 To the extent that the level of pain and restriction of the shoulder has increased since she stopped working, I am not satisfied on the medical evidence that the trolley incident is the cause of that increased pain and restriction.
107 There is no explanation for the deterioration of her shoulder condition and therefore no medical material that supports a finding that it was the trolley incident that is responsible for her current level of pain and restriction in her shoulder.
Non-work related consequences
108 Ms Law relies on three affidavits dated 23 May 2023, 1 May 2024 and 13 June 2024. In those affidavits she says she:
(a) has constant aching pain from the base of her head down to her right armpit, which worsens and becomes stabbing and throbbing at times;
(b) has greater pain when using the right arm forcefully such as pushing trolleys or doing heavy domestic tasks;
(c) struggles to lift her right arm above shoulder height or behind her back, though this has improved. She has difficulty doing up buttons behind, doing her hair and putting on a necklace;
(d) uses Panadol osteo each night;
(e) uses heat packs and creams;
(f) sometimes wakes with right shoulder pain;
(g) cannot manage the garden and hires a gardener to mow the lawn;
(h) is less social and less active and has put on about 15kg in weight;
(i) gets tired more easily and cannot be involved in her grandchildren’s lives in the way she would have liked. She had planned to do childminding but cannot do that. She cannot lift her grandchildren or play with them in the park;
(j) has poor mental health and sees a psychologist; and
(k) used to go camping and socialise a lot, and enjoyed hosting dinners but now no longer does these things.
109 She said that at the time she ceased work she could not go to the supermarket, she could not carry much on her right shoulder and had to buy smaller amounts to carry things.[42]
[42] T 71 L 19-21
110 She said her pain had, after initial improvement, remained largely unchanged, albeit variable, since the trolley incident. For the reasons set out above I am not satisfied that her current level of pain and restriction is caused by the trolley incident.
111 Given my finding that I am not satisfied that the shoulder injury is a material cause of Ms Law’s inability to work, the question is whether the consequences I am satisfied were caused by the shoulder injury meet the test of being at least very considerable.
112 Ms Law has had one injection of steroid into the shoulder, Bowen therapy, massage and hydrotherapy, but has had no other intervention and no ongoing specialist treatment. She does not take any prescription medication, although there is evidence that on one occasion she was prescribed Endep. She took naproxen until September 2021 but ceased thereafter. She currently takes about six Panadol each day which is an increase in her medication since early 2023. The defendant submits that her level of treatment and use of medication is a significant matter in determining the level of pain she actually experiences.
113 The defendant also submits that Ms Law has a very significant psychiatric condition which has caused her impairment and the impairment caused by the psychiatric injury has, or is likely to have, an impact on the consequences she claims arise from her shoulder injury.
114 The defendant says there is little supportive medical material for her claimed consequences and that Dr Westh recorded that she “can undo jars, is ok with overhead activities” and that her shoulder only minimally impacts her sleep, which is mainly interrupted by stress.[43] Dr Westh noted that she is very depressed, and noted that her physical injury is “associated with an accompanying significant psychological illness”.[44] He recommended supportive care from her general practitioner “particularly for her significant accompanying psychological illness”.[45]
[43] PCB 67
[44] PCB 68
[45] PCB 68
115 The defendant says I cannot be satisfied that the claimed consequences arise from her shoulder injury, as opposed to her psychiatric injury.
116 Counsel for the plaintiff submits that Ms Law was a credible witness and that she was not challenged on many of the claimed consequences. Ms Law has pain, an inability to work and consequences on her activities of daily living that meet the test of at least very considerable.
117 Counsel for the plaintiff correctly submits that the fact that Ms Law’s psychiatric injury might also impact on her life and cause her consequences does not mean that her shoulder injury has not also caused those consequences.[46]
[46] Dressing v Porter [2006] VSCA 2015; Acir v Frosster [2009] VSC 454
118 Counsel for the plaintiff submits that, although Ms Law has a separate psychiatric injury, there is a component of her psychological condition that results from her level of pain and the restrictions caused by her shoulder injury which ought to be considered for the purposes of this application.[47]
[47] T9 L19-24
119 This submission would appear to be contrary to the express provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 which provides at s325(2)(h) “the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise”.
Findings
120 The level of pain Ms Law now describes is not consistent with the pain reported at the time of her return to work, and the assessments of her treating doctors at that time.
121 There is no medical evidence that the shoulder has deteriorated as a result of the original trolley accident. Rather the evidence is that the shoulder improved after the trolley accident, albeit that the injury has never entirely resolved.
122 I accept that her psychological injury may well impact her domestic and social life but that is irrelevant if the shoulder injury also causes those consequences. I am required to assess whether the consequences of the shoulder injury meet the relevant test independently of any impact resulting from her psychiatric injury.
123 However because I do not accept as reliable Ms Law’s evidence that her shoulder injury has been constant and unchanging after an initial improvement, and I am not satisfied that there is a satisfactory medical explanation for her apparent shoulder deterioration, I am not satisfied that her current shoulder condition and level of pain is solely a result of the trolley accident.
124 Doing the best I can on the evidence, I must assess those consequences that I am satisfied result from the shoulder injury caused by the trolley accident. I must not assess those consequences that are a result of either an intervening psychiatric condition, or a deterioration caused by some unknown other cause.
125 I accept Ms Law’s evidence that she prefers not to take strong medication and I do not consider this establishes that she is not in significant pain.
126 However the pain has not been such as to have prompted Ms Law to return for follow up consultation with a specialist, or to resume physiotherapy which, on the evidence, appears to have been assisting her recovery.
127 I am satisfied that the level of pain and restriction caused by the trolley accident is as it was reported to various medical professionals around the time of her return to work. That is, minor restrictions of between 10 and 20 degrees in two planes of movement, minimal pain around 3/10, and a relatively minor loss of abduction strength.
128 Doing the best I can on the evidence:
(a) I am not satisfied that her shoulder impacts her sleep, having regard to the history recorded by Dr Westh and Dr Smith and the compelling evidence about her anxiety and its impact on her sleep.
(b) I am satisfied that her shoulder likely impacts her domestic activities, including having greater difficulty mowing the lawn and hanging out the washing, doing up her bra, washing her hair and so on.
(c) I accept that her pain and restriction in movement of the shoulder effects Ms Law’s capacity to play tennis and badminton. She says these were activities she previously undertook socially and which she enjoyed. There is no evidence about the frequency with which she played either of these sports or what significance her inability to play those games has had on her life more generally. Nevertheless I accept that it is a consequence of her shoulder injury. The fact that she might also be disinclined to engage in social sport games because of her psychiatric state is a matter that I have not had regard to.
(d) I accept that her shoulder likely impacts on her ability to lift her grandchildren up, particularly over shoulder height and that this is a consequence of real significance to her. She says that her inability to look after her granddaughter one to two days a week is a particular loss to her and I accept that this is a significant consequence for her.
(e) She claims that her mental health is poor as a result of her shoulder injury, however as her claim is brought only on the basis of her physical injury, this is not relevant to my assessment.
(f) There is no evidence about the timing of her inability to manage her garden, or when she had to hire a gardener however I accept that her shoulder restrictions would limit her capacity to work in the garden and undertake heavy gardening chores.
(g) I accept that she takes regular over-the-counter analgesia, though I am not satisfied that the level of medication she currently takes has been consistent since the trolley incident, given Dr Boffa’s report in January 2023. It appears her use of simple analgesia has increased.
(h) I am not satisfied that her weight gain is a consequence of her shoulder injury. There is no information about the period of time in which she says she gained weight, and no supportive material in general practitioner notes or other medical material. It is not clear what level of activity she engaged in prior to the shoulder injury and what the reduction in that level of activity is that would account for the weight gain claimed.
(i) Similarly, there is no real explanation for why the shoulder injury has caused reduction in socialisation, other than her evidence that she finds it difficult to lift heavy pots and this makes cooking and hosting dinner parties more difficult. I accept that her shoulder injury would make lifting heavy pots and undertaking heavy aspects of cooking more difficult and this is a loss to her of an activity she enjoyed.
(j) I do not accept an inability to go camping is a consequences of her shoulder injury. It appears that camping was primarily an activity she undertook with a former partner and would not have pursued in any event after that relationship ended.[48]
[48] T 58
129 The pain and restrictions that can be attributed to the trolley incident, combined with the other consequences I have found are caused by the shoulder injury could be considered significant or marked.
130 However, aside from a single injection into the shoulder, Ms Law has had no intervention. She has not investigated treatment options. She did not persist with physiotherapy. She takes only over the counter medication. She was able to return to fulltime work and duties with minor restrictions.
131 Considering the evidence as a whole and having regard to the range of cases I am required to consider I am not persuaded that the consequences of Ms Law’s shoulder injury meet the threshold of being at least very considerable.
132 Accordingly the plaintiff’s application is dismissed.
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