Lehman v Stay Residential Services Association

[2012] VCC 862

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT WARRNAMBOOL

CIVIL DIVISION

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-03075

LINDA ANNE LEHMAN	Plaintiff
v
STAY RESIDENTIAL SERVICES ASSOCIATION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Warrnambool
DATE OF HEARING:	10 and 11 May 2012
DATE OF JUDGMENT:	19 June 2012
CASE MAY BE CITED AS:	Lehman v Stay Residential Services Association
MEDIUM NEUTRAL CITATION:	[2012] VCC 862

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION

CATCHWORDS – Injury to the left shoulder – pain and suffering only – whether consequences to the plaintiff are serious

LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(16)(b), 134AB(37) and (38).

CASES CITED – AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) VSCA 60; Ansett Australia Ltd v Taylor [2006] VSCA 171; 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] VSCA 69; Petkovski v Galletti [1994] 1 VR 436.

JUDGMENT – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird and Mr I R Fehring	Stringer Clark
For the Defendant	Mr P D Elliott QC and Mr J L Batten	Lander & Rogers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from early 2004 until late 2006 (“the period of employment”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.  There, “serious” is defined relevantly as meaning:

“(a)   permanent serious impairment or loss of a body function.”

4       The body function relied upon in this application is the left shoulder.

5       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.

6       The impairment of the body function must be permanent.

7       Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

8       The plaintiff bears an overall burden of proof upon the balance of probabilities.

9       By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

10      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.

11      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.

12      The plaintiff relied upon two affidavits and she was cross examined.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s Evidence

13      The plaintiff is presently aged fifty eight, having been born in February 1954.  She lives with her partner at Tarrington.

14      The plaintiff was born in Tasmania where she completed Year 10.  In addition to raising her three children, the plaintiff has nursed as a Division 1 nurse and worked as a personal care attendant and in office administration. 

15      Whilst working at Devonfield Enterprises, an institution for the mentally disabled in Tasmania, the plaintiff was stabbed by a patient.  The plaintiff received $20,000 by way of compensation.  In cross examination, she described ongoing chest pain since this incident in 1993.

16      In 1996, the plaintiff moved to Warrnambool where she worked at a jewellery shop and also Safeway.  She had to leave the Safeway job because she inhaled fumes and damaged her voice box and larynx.  She did not work for the following two years.  The plaintiff received $84,000 in a worker’s compensation claim relating to this incident.

17      The plaintiff then nursed part time in Warrnambool in 1998 and 1999.  In 2001, she moved to Hamilton with her new husband and she obtained a Certificate III in Aged Care that year.

18      After twelve months living in Hamilton, the plaintiff started working for WDAS, a disability services provider.  She also worked in a similar capacity for Karingal.

19      In 2004, the plaintiff registered with Mulleraterong Residential, as the defendant was previously known, to increase her hours.  When her hours were increased, the plaintiff ceased work with WDAS.

20      The plaintiff believed she started work with the defendant on 15 January 2004 as a residential care worker on a casual basis.  From 2005 to mid 2006, she also worked at the Mulleraterong Day Centre running courses and activities – a separate employer to Mulleraterong Residential.  The plaintiff also did day trips for Mpower, another disability services provider. 

21      The defendant had a large network involving five residential buildings with three permanent houses and two respite houses for both children and adults. 

22      When working as a casual worker for the defendant, the plaintiff generally earned on average between $1,000 and $1,500 a fortnight during sleepover shifts.  Working basic shifts not involving sleepovers, she earned $300 to $800, depending on her hours.

23      The plaintiff deposed she first started noticing problems with her left shoulder of a minor nature at the start of 2005.  She thought she worked through from January to October with what she believed was just a niggle.

24      The plaintiff deposed she had not had any similar problems earlier with her left shoulder although she had attended Dr McLindon, chiropractor, three times in 2003 for headaches.  He found her C4 vertebra “was out.” At that time, the plaintiff experienced some pain on the left side to the shoulder, chest and between the shoulder blades.  The plaintiff believed she made a good recovery from her neck problem.

25      The plaintiff was cross examined about these attendances and also her health prior to suffering injury working with the defendant.  She confirmed that she had not had any major problem with her shoulder before 2005. 

26      The plaintiff explained that Dr McLindon was treating her neck at the C4 joint, and he did manipulation on her neck, spine and shoulder.  The plaintiff still has a stiff neck in relation to which she receives chiropractic treatment.  She also has treatment from chiropractor Rory McNight for her hip, having had problems with her hip going out since a giving birth to one of her children many years ago.

27      The plaintiff could not remember having left shoulder pain as reported by Dr Pepic on 28 April 2004.  Nor could she recall having an ultrasound at that time but obviously she did.  She could not remember Dr Pepic discussing with her going onto light duties.  She has never been on light duties, as her job was not one where light duties were available.

28      At that time, the plaintiff was working for Karingal and the defendant.  In her job with the defendant, the plaintiff was put into people’s homes to help with their dietary requirements, set up rosters and help them with shopping.  At Karingal, the plaintiff gave clients their medication and took them on outings. 

29      Over the years, the plaintiff had no problems with other joints in her body.  She was fine.  She could not remember a diagnosis of fibromyalgia in July 2002.  She could recall taking Tramal at various times but could not remember the dates, when asked about a prescription in July 2003.

30      The plaintiff could not remember being diagnosed with fibromyalgia in June 2005 as set out in Dr Robertson’s notes.  She agreed she had done heavy work all her life.  In March 2005, the plaintiff had a problem with her gall bladder that ultimately led to surgery.

31      The plaintiff deposed that in about October 2005, the niggle in her left shoulder became worse and she attended Dr Joyce who diagnosed bursitis along with a tendon tear.  X‑rays were arranged, but the plaintiff was advised there was not much that could be done.

32      In between her shifts at work with the defendant, the plaintiff’s pain was not as bad, and therefore she kept working.  Her left shoulder continued to be painful, and she attended Dr Joyce a number of times throughout 2006. 

33      In cross examination, the plaintiff confirmed that on 5 October 2005, she could recall complaining to Dr Joyce that a wheel chair bound client, Annie Rogers had fallen against her left shoulder (“the incident”).  Ms Rogers fell on the plaintiff whilst the plaintiff was moving her from a wheelchair to a toilet chair.  The plaintiff agreed that she was prescribed Mobic and Tramal at that time.

34      In cross examination, when she was told the next visit to Dr Joyce was in July 2006, the plaintiff said she thought it was about six months between the complaint in October 2005 and next going to the doctor for her left shoulder.  During that time she took over the counter medication.  She kept working, and rested, and literally put up with her pain.

35      The plaintiff agreed that in February 2006, she complained of chest pain and palpations and was seen by a doctor at Portland.  She did not have a heart murmur or a blockage.  Further, the plaintiff had some treatment for asthma in 2006. 

36      During late April/early May 2006, having completed four sleepover shifts in a row of twenty one hours, the plaintiff noted a particular deterioration in her left shoulder condition.

37      Much of her work on those shifts involved assisting Ms Rogers and seven other clients.  A lot of the time on those shifts, the plaintiff did not have any assistance.  The plaintiff was a lot sorer after working with Ms Rogers and on this specific occasion, the plaintiff’s shoulder was particularly bad.

38      The plaintiff’s work involved her doing manual handling and dealing with clients, some of whom would be in nappies, and she would have to help them in and out of bed.  There was heavy lifting with no aids available.  The defendant did not provide lifting training relating to Ms Rogers until 19 February 2007.

39      The plaintiff’s work also involved showering, dressing, feeding and medicating clients, making beds and changing sheets, undertaking washing and ironing, cleaning the bathrooms, vacuuming, making meals for the next day, and whatever else was on the list.

40      The plaintiff’s left shoulder ended up feeling frozen, and she could not even do up or take off her bra.  Her shoulder just got worse over time. 

41      In cross examination, the plaintiff agreed that she had two meetings with her boss Ms Sandford, the first in August and the second in October 2006, about increasing her hours at different houses.  The plaintiff explained that supervisors had their favourites to whom they would allocate work, and care workers had to really fight for the hours they got, and she spoke up on their behalf. 

42      The plaintiff told Ms Sandford that she had been with the defendant longer than some of the other workers.  She was more qualified, and she thought she deserved more hours.  In cross examination, the plaintiff agreed she was getting a raw deal from the defendant.

43      In the three years the plaintiff worked with the defendant, she threatened to resign every other week, tongue in cheek.  She would say to a supervisor “I’ve had enough of this, I’m not coming back tomorrow”.  It was not really any different on the occasion she spoke to Ms Sandford.  The plaintiff was disappointed, as she would have liked extra hours, and she was probably angry when she spoke to Ms Sandford but she did not tell her that she resigned.  She has not resigned, and has not written a letter of resignation. 

44      In re examination, the plaintiff said she was in pain at the time of the meeting with Ms Sandford, but she was prepared to put up with it and keep working.

45      The plaintiff did not go back to work after the October meeting as no hours were allocated to her.  If they had been, she would have gone back, because she needed to work and wanted to.  Until that time, she was still doing the short relief shift and the odd twenty one hour shift, but was not allocated any further work after the second meeting with Ms Sandford.

46      By around October 2006, the plaintiff was again referred for x‑rays and also an ultrasound in November, which showed a tear in her left shoulder.

47      On 26 November 2006, the plaintiff took a medical certificate to work and left it with the receptionist to give to Ms Sandford.  The plaintiff lodged a WorkCover claim at that time.  It was initially rejected in January 2007. 

48      In cross examination, the plaintiff agreed the first time Ms Sandford found out the plaintiff had a shoulder problem was when the claim was lodged, and that there was no report of injury prior to that day.  The claim form incorrectly set out that the plaintiff ceased work on 22 November 2006.

49      During the period of employment when the plaintiff had shoulder problems, she discussed this issue with one or two of the other staff whom she believed were understanding.  She talked particularly to Marilyn Sparrow, because she also had a shoulder injury.  There were times when the plaintiff needed time off work to have steroid injections, and she phoned Ms Sandford requesting time off.

50      The plaintiff saw Mr Kierce, orthopaedic surgeon, in December 2006.  He sent her for an MRI of the left shoulder, which showed tears.  On 11 January 2007, when the plaintiff saw Mr Kierce he arranged for gentle manipulation under general anaesthetic on 19 January 2007.

51      After that procedure, the plaintiff returned home and rested.  When she saw Mr Kierce on 5 February 2007, she was experiencing a very temporary improvement.  All the time, she had been hoping in a very optimistic way she would just get better.

52      The plaintiff was supposed to be off work until 13 March 2007 but she was under pressure to return for financial reasons.  Her marriage was going downhill, and she was still optimistic that she would get over her injury.

53      When the plaintiff returned to Dr Joyce in February 2007, she was very pushy with him to give her a certificate so she could get back to work, and he reluctantly certified her fit to do so.

54      The plaintiff was cross examined about this attendance.  She could not recall telling Dr Joyce her shoulder was better when it would not have been.  She could not comment on Dr Joyce’s finding that she had a full range of movement on that examination.  She probably told Dr Joyce that she was fine because she probably wanted to get back to work, but she could not remember what she said.

55      The plaintiff returned to work on 21 February 2007.  She managed to complete her shift but found she was in a lot of pain and could not work on.  She has not worked since.

56      In March 2007, the plaintiff spoke to Ms Sandford by telephone.  She told the plaintiff that the defendant had discussed her position and it had been agreed that she find work elsewhere so that she did not reinjure her shoulder.  Ms Sandford advised she was looking after the plaintiff’s best interests, and said there was no other work available. 

57      The plaintiff was so desperate to work she tried for a position with the defendant at Rippon Road.  She did not get that particular job.  She was told at that time she would be able to stay on as a casual worker.

58      In cross examination, the plaintiff was shown her written application dated 7 March 2007 for the permanent position at Rippon Road in which she wrote that she had been fortunate enough to work for the defendant for the previous three years. 

59      The plaintiff agreed the Rippon Road job would almost have been full time hours, even though the position was not described as such.  It was a supervisor’s job, which involved an increase in her previous hours.  She would have been responsible for allocating the work.  If she had been offered the job, she would have taken it.

60      The plaintiff was not given the job, but was told she could still have casual work.  She rang up all of the aged care houses, but was advised there was no work available.  She phoned Ms Sandford, who told her there were no hours available and that she had had a meeting with the supervisors and they were concerned about the plaintiff’s shoulder, so she never got any more work. 

61      By May 2007, the plaintiff had had a hydrodilatation of the left shoulder.  Neither that procedure nor the manipulation by Mr Kierce earlier that year proved satisfactory in the long term.  The plaintiff was also having physiotherapy and trying acupuncture, but nothing seemed to work very well.

62      In re examination, the plaintiff confirmed she had the hydrodilatation to see if it would take some of the pressure and soreness out of her shoulder.  From March to May 2007, her shoulder was sore.  She went to various doctors, and she was taking over the counter medication, up to eight Panadol a day.

63      The plaintiff wore a sling for a short time on the suggestion of her general practitioner.  She could not remember if her arm was in a sling when she saw Dr Griffiths in August 2007, nor could she remember being advised to stop wearing the sling.  She could not really remember what treatment or medication he advised.  The steroids he prescribed gave her a rash and caused vomiting and diarrhoea.  She could not recall that she was taking the anti-psychotic drug Haloperidol when she saw Dr Griffiths.

64      On 23 July 2009, Mr Mitchell carried out an arthroscopy on the plaintiff’s left shoulder (“the surgery”).

65      The plaintiff had the surgery because her shoulder was not improving at all, and her range of movement was getting very limited.  She could not lift her arm and it hurt to lie down.  Since the surgery, her left shoulder has remained sore.

66      In cross examination, the plaintiff agreed she was unhappy with her various treating specialists.  She expected more from Mr Mitchell.  She denied she had discussed a diagnosis of arthritis with Mr Mitchell and Mr Cunningham.  She was frustrated with Mr Mitchell, and she was probably angry when she went to see him as she wanted something done.

67      The plaintiff stopped seeing Mr Cunningham because he did not like WorkCover patients.  The plaintiff agreed she would have blamed all her problems on work as he reported.

68      The plaintiff knew that Mr Kierce found a full range of movement when he manipulated her shoulder under anaesthetic.  She thought after that procedure, he considered he had finished treating her.

69      In cross examination, the plaintiff agreed when she saw Mr Nelson in January 2008 she was holding her arm into her chest.  She could not remember what treatment he suggested.  The plaintiff explained that she sat in court with her left arm elevated because it continually hurt and she is guarded with it.

70      When the plaintiff swore her first affidavit in January 2010, she had daily left shoulder pain, constant although varying.  She got pins and needles in her left hand and fingers, although mostly in her left thumb.  Until the surgery she had not been able to wear a bra for two years.

71      The plaintiff was then taking two Tramadol tablets a day, for severe pain.  She also took regular Panadol along with three Valium per day.

72      The plaintiff found sleeping particularly difficult, as any contact with her left side was very painful.  She was having physiotherapy treatment from Jennifer Pollard on a weekly or fortnightly basis, and she also remained under the care of her general practitioner.

73      The plaintiff had not been able to return to work, and continued to have difficulty doing up her bra, reaching behind her back to wash, or tucking in a jumper or skirt around the back.

74      Many day to day activities were difficult for her.  Sitting for long periods in a car was very difficult, as was reaching into cupboards, pegging washing on the line or vacuuming.

75      The plaintiff’s grasping strength in her left hand was poor.  Driving was difficult, but she could manage.  She was always sore after driving and travelling in the car and it was uncomfortable.

76      Pastimes that the plaintiff really loved seem to be out for her, such as knitting and sewing. 

77      The plaintiff’s intimate life was affected, and she found she was either in too much pain or too sore to be touched or cuddled.

78      The plaintiff deposed that her injury had ruined her gardening, which she had previously enjoyed doing for a few hours a day when not at work.  She described her garden as beautiful, with one hundred and fifty roses.

79      The plaintiff’s present property is on five acres.  There is a small garden, and her husband does most of the gardening.  The plaintiff can still do the watering and pull out the odd weed, but she tends to get very frustrated, and does not spend very much time doing gardening at all.

80      In cross examination the plaintiff described her present garden as being one of native plants suited to the local soil.

81      Prior to her injury, the plaintiff and her ex husband had collected and renovated vintage tractors and stationary engines.  It was an enjoyable pursuit, and very hands on.  The plaintiff used to drive tractors in the bush and go to tractor treks for charity or tractor pulls.  She was no longer able to engage in this activity and only wished she could. 

82      The plaintiff recently deposed that she now occasionally goes to antique tractor shows and still has the odd ride.  However, she now avoids driving tractors.  She is always sore after being on the tractor due to having to climb on and off and also bouncing along rough roads.  She tends to load up on her medication to cope.

83      In cross examination, the plaintiff said that she had not driven a tractor in competition since about 2002.  She still goes with her partner on rides of up to one hundred kilometres, sitting on the tractor but not driving it.

84      The plaintiff is a member of the Hamilton Pastoral Museum where she goes to socialise and also attends rallies.  She was on the committee for a couple of years until about 2004.

85      The plaintiff has a circle of friends in Hamilton.  She can do limited housework, having previously had home help.  She does just the basics, and can do so, as she is right handed.  She has trouble raising her arm above her shoulder.  She does exercises at home.

86      Prior to the injury the plaintiff had been an active swimmer, essentially swimming all her life, having grown up on the coast in Tasmania, and she also enjoyed surfing.  She was no longer swimming at all, although she hoped to try to get back into some light swimming in a couple of months’ time.

87      The plaintiff recently deposed that she had not been swimming recently and considered this no longer an option.  It would not be possible for her to do over arm stroke.  In cross examination, the plaintiff confirmed she had not tried any sort of swimming since hurting her shoulder.

88      The plaintiff bought a new car in January 2011 which she does not drive very much now, as driving long distances with a bad shoulder can be quite painful.  Recently she travelled to Queensland with her partner.  She found it very hard due to the injury.  She could not recall doing any of the driving, and sitting for long periods in the car made her shoulder sore.

89      In cross examination, the plaintiff confirmed that after her son’s death, she and her partner travelled to Queensland, taking seven or eight days to get there.  They stayed at the Atherton Tablelands for two weeks.  She agreed that the trip there and back home was over rough terrain.

90      The plaintiff and her partner also go away on the odd weekend caravanning.

91      At the time she was injured, the plaintiff had been under particular financial pressure to get back to work.  She discovered that her ex-husband Daryl, who was nine years younger than her, had been having an affair with her sister, and the plaintiff moved out in February 2008.  As soon as the plaintiff had given up work, their marriage deteriorated, and the plaintiff felt like Daryl was using her and she was only ever a pay packet to him.  He had always had poor paying jobs, and she had paid the deposit for their house.

92      In October 2010, the plaintiff deposed that she would love to be able to return to some part time work but was not ready to at that stage, but would like to have a go, trying to be a retail jeweller on a part time basis.

93      The plaintiff really enjoyed work with the defendant, and the more work she got the more she enjoyed it.  She missed the social side of work and the interaction with fellow workers.  She still saw some of the defendant’s clients down the street, and they asked her when she was coming back.  She had always enjoyed organising their activity programs.

94      Throughout the period of employment, the plaintiff would say she had a high pain threshold.  The worst time was in 2007 when she spent a lot of time in bed and was medicated.  She then had a district nurse and shire worker to help her shower, dress and do the housework.

95      Following the surgery, the plaintiff found that overall her pain was still the same as before, although it varied.  There had been some minor improvement in some aspects, but her shoulder remained very bad, it was easily aggravated and she was still very restricted. 

96      The injury had cost the plaintiff not only her job but her marriage, finances and self esteem.  It had cost her her ability to work in the industry that she was trained in and enjoyed, and not being able to do activities such as the garden had been a very big blow for her.

97      The plaintiff deposed in October 2011 her problems had continued.  In 2010 and early 2011, caring for her son, who was suffering from cancer, was her priority, rather than looking for work.  Sadly, her son died, and the plaintiff did the best to look after him, but it was frustrating for her, as she could not do as much as she would have done.  Fortunately she had district nursing and palliative care assistance.

98      The plaintiff is not exactly sure what she could do workwise with the restrictions that she has.  She has applied for several jobs, including reception work, a job in a jewellery shop and office work.  These were only part time positions, and she would be willing to give them a try.  She had a couple of answers but they had all been negative.  She also applied for a couple of personal care attendant jobs, but had not heard back in relation to those applications.  She was not sure how she would cope at work due to her shoulder, but she wanted to test herself.

99      In cross examination, the plaintiff confirmed that the personal care work for which she had applied was in Hamilton.  They were part time positions in aged care facilities, which involved just sitting with clients, and not a great deal of physical work.

100     The plaintiff did not know whether she could go back to work at the moment because she had been getting the run around, she was tired and sore, and she did not know whether she could actually physically do a shift of any kind.  She had tried for six years to get back to work, and had done nothing but try to improve her situation. 

101     With the amount of medication that the plaintiff was sometimes required to take, she certainly would not be able to perform fully mentally, and in some cases could even be a danger to herself and others.  She was also concerned that her reliability to turn up every day was compromised due to her injury.

102     The plaintiff has started physiotherapy with Tania Aitken at the Hamilton Spinal Sports and Wellbeing.  The plaintiff had a break in treatment when she had a day procedure in hospital that she did not want to discuss when giving evidence.

103     The plaintiff also had another MRI scan in 2011 and saw Mr Mitchell, who told her there was a small amount of fluid on her shoulder, and he recommended physiotherapy.

104     The plaintiff deposed she used Panadeine Forte and/or Nurofen Plus as a painkiller.  She took up to six Panadeine Forte a day, which made her feel groggy, and she was worried that this would affect her work performance.

105     In re examination, the plaintiff said that she never takes less than four, and takes a maximum of eight of these tablets daily.

106     The plaintiff has got herself off Valium, Tramadol and Endone, which were all knocking her about and made her feel sick and were bad for her stomach.

107     In cross examination, the plaintiff agreed that Tramal was a strong painkiller and that it was addictive.  She confirmed she had got off it and her other medication about twelve months ago.

108     The plaintiff is still seeing her general practitioner, Dr Joyce, or if he is not available, she sees Dr Stewart Perry.

109     In cross examination, the plaintiff agreed she admitted to Hamilton Base Hospital in February 2010 with ear problems and severe headaches.

110     The plaintiff could also recall attending Emergency at the Hospital on 4 June 2010 with colic and pain.  She was sent home and then came back the same day with worsening right thigh pain.

Treating Doctors

111     Mr McLindon, from the McLindon Chiropractic Centre in Hamilton, reported in June 2007 that the plaintiff sought care at his clinic on three occasions in August 2003, complaining of left sided pain to the shoulder, chest and interscapular region. 

112     The plaintiff was given a light myofascial release treatment, and Mr McLindon suggested to her that she seek further care with a medical specialist, which he understood she planned to do on 23 August 2003.

113     Dr Joyce reported in December 2006 that the plaintiff had consulted him for the first time on 6 July that year with a painful left shoulder with no history of a specific injury.  He diagnosed supraspinatus tendonitis which was confirmed by ultrasound.  He noted there was little improvement with cortisone injections.

114     Dr Joyce reported the plaintiff had had pain in her left shoulder since 2004, with a diagnosis then of partial tear of the supraspinatus tendon with tendonitis.

115     The plaintiff had consulted him on three occasions since October 2006 with pain in the left shoulder which restricted her work.  Since 27 November, she was totally unfit to work, and she had been referred to Mr Kierce.

116     In June 2007, Dr Joyce advised the last time he saw the plaintiff was in February 2007 after Mr Kierce’s manipulation procedure.  Dr Joyce noted the plaintiff had had a drastic response with a full range of movements and wanted to commence with normal working duties.  He also noted she was consulting with another colleague for a recurrence of her shoulder pain.

117     In December 2006, Mr Kierce reported that the plaintiff had a clinical partial tear of the left rotator cuff that was work related and confirmed on ultrasound.  He noted her condition had led to a frozen left shoulder, “? adhesive capsulitis”.  He sought approval for an MRI of the left shoulder as soon as possible.

118     Mr Kierce performed a manipulation under anaesthetic on 19 January 2007.  It was reported under that anaesthetic the plaintiff had a full range of movement, without any evidence of adhesive capsulitis.  It was noted that no force was applied during that procedure.

119     Mr Kierce reported in June 2007 that the plaintiff told him on about 3 October 2005 she found her left shoulder, which had been getting sorer and sorer over a period of months, became much worse, so she saw a doctor.  There had not been any specific injury.

120     Mr Kierce felt it consistent with the plaintiff’s history that she was suffering from a partial tear of the left shoulder rotator cuff, the condition being likely to be caused or aggravated by her work as a personal carer over a period of time in a physically demanding job.

121     The full range of unimpeded left shoulder movement under anaesthetic indicated to Mr Kierce that it was very unlikely the plaintiff was suffering from adhesive capsulitis.  When he last saw the plaintiff in February 2007, he noted the movements of the left shoulder had improved, and Mr Kierce felt she was no longer suffering from any adhesive capsulitis, and he recommended some exercises.

122     Mr Kierce did not think the plaintiff should return to her pre injury work, but in the future should be limited to work which did not involve using her left arm above shoulder level, lifting more than fifteen kilograms, dealing with intellectually disabled clients, pushing or pulling wheelchairs, or lifting. 

123     Mr Kierce certified the plaintiff unfit to work until mid March, and did not envisage any further treatment as being worthwhile due to her inability to take oral anti inflammatory agents or injections.

124     In his view, the natural history of the tear should be that gradually the plaintiff would regain a full range of movement but should never be involved in heavy physical work.  He did not believe operative treatment was necessary.

125     Mr Kierce re-examined the plaintiff at the request of her solicitors in July 2008.

126     In terms of previous history, the plaintiff told him in 2004 she had attended a chiropractor regarding her neck, but said she had never had any previous left shoulder trouble.

127     On re examination in July 2008, there was no wasting of the left shoulder girdle muscles.  The plaintiff was tender over the anterior aspect of the left glenohumeral joint and a little tender over the anterior part of the left rotator cuff and over the acromion.  The impingement test was negative.  There was some restriction of shoulder movement.

128     Mr Kierce thought the plaintiff had the gradual onset of left shoulder pain in the course of work, leading to her inability to continue working by 3 October 2005.  He considered her work was a significant contributing factor to the development of the partial tear of her left rotator cuff.  He then thought her condition had not stabilised. 

129     Mr Kierce considered it would be better to avoid aggravating factors and wait for the condition to settle by itself rather than operating.  He thought clearly the plaintiff was permanently incapacitated for personal care work, and doubted her physical ability to work as a Division 1 nurse.  He thought there would be a permanent partial incapacity whether the plaintiff had surgery or not.

130     Mr Cunningham, orthopaedic surgeon, saw the plaintiff on referral from Dr McAllan on 28 June 2007.  The plaintiff told him of the gradual onset of pain in her left shoulder over the previous eighteen months with no specific incident but heavy work.  He noted that in her past history there seemed to be no relevant findings.

131     On examination, the plaintiff reacted extremely vigorously to any attempt by Mr Cunningham to examine her shoulder.  The plaintiff appeared to have extreme pain over the acromioclavicular joint, the greater tuberosity, and the anterior aspect of the shoulder joint.  Her range of movement was markedly limited, and accompanied by significant reaction. 

132     Mr Cunningham noted the plaintiff’s extreme degree of reactivity was usually seen in such conditions as septic arthritis and acute calcific bursitis or an acute avascular necrosis of the humeral head.

133     Mr Cunningham noted x‑rays and arthrogram of 17 May 2007 showed a very well preserved shoulder with a good subacromial space, no significant osteoporosis, no calcification, and no osteoarthritis.  He noted that the arthrogram of the shoulder during hydrodilatation indicated what appeared to be a small volume shoulder joint. 

134     Mr Cunningham noted a bone scan indicated a significant increase in the left acromioclavicular joint consistent with inflammation within that joint.  X‑rays showed normal alignment of the left acromioclavicular joint with no bony erosions, some soft tissue swelling around that joint, a normal shoulder joint, and reported calculation seen in the rotator cuff which Mr Cunningham did not see.

135     On the initial examination, Mr Cunningham thought it was not possible to make a clear diagnosis of the cause of the plaintiff’s problems.  He felt she may have had a frozen shoulder, but he could not do an accurate assessment because of her resistance on examination. 

136     Mr Cunningham noted the MRI in December 2006 showed a possible tear of the glenohumeral joint with an in substance tear of the supraspinatus tendon at the myotendinous junction.  He suggested the plaintiff have an injection of local anaesthetic, but she disclosed the presence of von Willebrand disease and was not prepared to have any invasive sort of treatment.

137     When reviewed on 19 July 2007 after a bone scan, the plaintiff advised she had been in Melbourne when she apparently developed extremely severe left shoulder pain and attended the Royal Melbourne where she was investigated for an acute infection. 

138     The plaintiff told Mr Cunningham that her shoulder pain was causing her to vomit and she was dry retching.  The plaintiff was exceedingly reactive to any attempt to examine her shoulder.  Once again, local anaesthetic and cortisone under ultrasound guidance were suggested but that suggestion was refused outright.

139     Mr Cunningham advised it was difficult to be entirely clear as to the cause of the plaintiff’s problem, which she attributed to work.  He noted she had widespread changes within the left shoulder, most of them relatively minor on imaging, apart perhaps from her acromioclavicular joint osteoarthritis.  He noted her reaction to examination and description of pain in the shoulder seemed more excessive than he had noted in other patients with shoulder problems, which raised the possibility of significant amplification of her symptoms.  Given the plaintiff’s current state, he thought it seemed unlikely she would be able to continue working.

140     Dr Harindran from the Hamilton Medical Group reported in October 2009 that the plaintiff first consulted him for her left shoulder problem on 3 December 2008 complaining of a work related injury to her shoulder two years ago. 

141     Dr Harindran noted the plaintiff had had some investigations and a hydrodilatation and was referred to Mr Mitchell who undertook left shoulder surgery.

142     Jennifer Pollard, physiotherapist, reported in October 2009 that the plaintiff initially came to her clinic on 14 May 2007 for treatment of a painful shoulder. 

143     The plaintiff had a few sessions of physiotherapy which she paid for herself following the hydrodilatation procedure which she also paid for privately. 

144     The plaintiff was not seen again at the clinic until 2 July 2009 when referred by an orthopaedic surgeon for pre and post operative treatment.  At that time there appeared to be continuing gross loss of left glenohumeral movement.

145     Ms Pollard noted that on 24 July 2009, the plaintiff underwent an arthroscopy with removal of bone spurs, decompression and coracoplasty.  The plaintiff had progressed steadily following surgery and she continued to have pain around the shoulder but her passive movement had improved greatly.  Shoulder strength was still poor but the plaintiff had begun a strengthening program.

146     Ms Pollard reported in April 2011, last having seen the plaintiff on 5 May 2010 when the plaintiff continued to have pain in her left shoulder and restrictions of active range of movement. 

147     Ms Pollard thought the resulting trauma from the injury brought about osteoarthritis of the acromioclavicular joint leading to subacromial impingement, partial thickness tear to the supraspinatus tendon and narrowed coracohumeral interval and humeral head marrow oedema.  She considered the plaintiff's incapacity to perform pre injury duties was permanent.

148     Dr Baldam from the Health Spot in Warrnambool reported in July 2008.  The plaintiff told him in December 2005 she was seeing a doctor in Hamilton regarding a number of problems including a left shoulder injury.  She came to see him in November 2007 when they discussed her previous two shoulder injections and the MUA, as well as the later hydrodilatation and the fact she had seen a pain specialist Dr Griffiths.

149     Dr Baldam did not have any paper records available to comment on.  He noted he only had a little involvement with the plaintiff's shoulder injury; however he did refer her to Mr Sundaram in November 2007.  Dr Baldam also sent her for a second opinion to Mr Dragomir Mladenobis in May 2008 regarding ongoing pain in her left shoulder.  Mr Mladenobis’ reply in June 2008 was short and simply recommended a referral to a specific upper limb specialist suggesting Mr Paige in Geelong.

150     On 5 January 2009 Mr Mitchell wrote to Dr Harindran advising that he was taking on the plaintiff's case with some hesitation, noting a few worrying signs to her shoulder pain.  He noted the plaintiff’s work history and her marital problems and previous left shoulder treatment. 

151     Mr Mitchell believed the primary problem to the AC joint was AC joint arthritis, which the plaintiff did not accept.  He thought the arthritis had conceivably also damaged the underlying rotator cuff, and the plaintiff may indeed have a tear of the tendon.  He arranged for an MRI to be an arbiter of the issues. 

152     Mr Mitchell highlighted that the muscle tightness in the trapezius and tingling down to the hand were both bad signs and operating on the shoulder while the plaintiff was still angry may not be a good idea and he would see her after the MRI.

153     Mr Mitchell reported in September 2009 that the plaintiff did not have a recorded incident but she was confident her problem happened at work.

154     Having concluded the plaintiff’s problem was both of subacromial impingement acromioclavicular joint arthritis contributing to the impingement and coracohumeral impingement, consent was then undertaken for surgery on the basis that it may not cure all the plaintiff’s problems.

155     Following surgery in July on review in August, Mr Mitchell noted the plaintiff was making good progress with intact internal rotation and sixty degrees of active forward flexion.  He asked her to continue physiotherapy and arranged review in six weeks.

156     Mr Mitchell advised his experience with subacromial impingement in the past had been of a ninety five per cent cure rate with ninety per cent return to work if the work was of a heavy nature.  Excision of the acromioclavicular joint, he noted, if anything had slightly improved those figures.  A coracoplasty had also been undertaken in the plaintiff's case, which was a relatively rare procedure and he could not provide an indication as to how it affected the prognosis.  His gut reaction was that patients requiring that procedure did very badly if it was not undertaken, but his evidence for that was thin.

157     Mr Mitchell reported on 1 April 2011 that the plaintiff was struggling with her left shoulder.  Multiple factors were involved and he had arranged an MRI.  Noting the plaintiff had not seen him since two weeks post surgery because of the illness of her son, Mr Mitchell advised Dr Perry that a repeat MRI was appropriate to ensure they had not missed anything but it may be then that the plaintiff needed to do posterior capsule stretching exercises.  He had a proportion of patients he would have doing those exercises at six weeks from surgery.

158     Mr Mitchell wrote to the plaintiff's solicitors on 4 April 2011 enclosing that correspondence and advising he was then in an unenviable position, having seen the plaintiff and then been asked to see her for medico-legal purposes.  He recommended an MRI but would then recommend settling the plaintiff’s legal case before embarking on any further surgery.  The exception to that would be if the MRI had some patently important pathology that could be treated, but his experience had been the results of treatment under those circumstances were diminished.  He was concerned that the plaintiff's recovery may have been impaired by her not undergoing the normal post operative management.

159     On 6 January 2012 Mr Mitchell advised the plaintiff's solicitors she had had a further MRI scan, a copy of which he had attached which concluded there was good post operative alignment and no rotator cuff tear indicated, although there was a little fluid in the subacromial bursa.  He had not seen the plaintiff since ordering the scan and advised it was not obvious that there was anything further he could do for her.

160     Dr Perry provided a printout of his notes under letter of April 2011.  He advised he had had little to no involvement in treating the plaintiff’s injuries and did not believe he could comment on specific questions. 

161     Dr Perry organised a left shoulder ultrasound in February 2011.  In March 2011, he referred the plaintiff to Mr Mitchell for further treatment after acromioplasty.

162     Dr Perry reported on 5 January 2012.  He noted that over the previous ten months, the plaintiff had been troubled by a shoulder injury following surgery.  However, it had not caused her to seek medical attention at the Hamilton Medical Group, which was understandable because her son died of cancer in January 2011 and she had been grieving.  He was not able to provide any further information.

163     Tania Aitken, physiotherapist from Hamilton Spinal, reported in December 2011 that the plaintiff had first presented in July of that year complaining of having suffered shoulder pain whilst working as a personal care attendant in 2005.  She concluded the plaintiff’s progress had not plateaued and further treatment was required at the clinic and by way of a home exercise program that may include hydrotherapy.

Medico-legal Evidence

164     Mr Huffam examined the plaintiff on 11 October 2011.  He had available to him the December 2006 MRI and the January 2009 CT scan, but not the 2011 MRI of the left shoulder.

165     The plaintiff told Mr Huffam that prior to commencing work with the defendant, she had had no history of any troubles with her shoulder or any other musculo­skeletal injury.  She told him that in 2005 she started to get left shoulder pain, describing no specific injury but stating her shoulders were subject to considerable strain moving heavy clients.  She continued working and her shoulder became worse over twelve months.  She then consulted her general practitioner. 

166     On examination, the plaintiff said she continued to have pain in the left shoulder and she had limitation of movement.  Movement of the shoulder appeared to be quite severely restricted.  Power of moving the left shoulder appeared to be very diminished.

167     Mr Huffam’s final conclusion was that the plaintiff had dysfunction of her left shoulder which would be compatible with repeated strains and injuries to the shoulder in the course of performing heavy work.  He noted she continued to demonstrate quite marked limitation of movement.  Whilst some reports had suggested pain and limitation of movement may be greater than expected on purely physical grounds, he thought the plaintiff certainly did have quite severe limitation of movement in the left shoulder, and considerable dysfunction thereof.

168     Mr Huffam thought the plaintiff was permanently not capable of performing any work requiring her to use the left arm at or above shoulder height or any work requiring forceful manoeuvres of the left arm. 

169     Mr Huffam considered the plaintiff’s condition had probably stabilised and was unlikely to change significantly for better or worse in the foreseeable future.  He thought the most important aspect of her treatment was for her to be continuing to perform a home based daily regime of shoulder mobilising exercises to maintain movement of her shoulder.

Investigations

170     Dr Joyce organised an ultrasound of the plaintiff’s left shoulder in November 2006.  It was reported there was a partial tear of the supraspinatus.

171     On x‑ray of that same date, there were minor acromioclavicular osteoarthritic changes noted.  Glenohumeral joint margins appeared normal, and there was no soft tissue calcification or evidence of past trauma.

172     Mr Kierce organised an MRI scan of the plaintiff’s left shoulder in December 2006.  It was reported there was anterior rotator cuff interval signal abnormality consistent with a tear of this structure of the glenohumeral ligament.  There was an intra-substance tear of the supraspinatus myotendinous junction anteriorly.  There was minor intra-substance signal abnormality of the biceps anchor consistent with either degenerative change or a minor SLAP lesion.  There was a partial thickness deep surface tear of the subscapularis tendon and acromioclavicular joint osteoarthritis and mild subacromial stenosis.

173     Mr Mitchell organised an MRI of the plaintiff's left shoulder in January 2009.  It was reported there was a small partial thickness articular surface tear of the supraspinatus tendon.  There was an osteoarthritic AC joint and subacromial impingement.  There was narrowed coracohumeral interval and humeral head bone marrow oedema raising the possibility of coracohumeral impingement. 

174     Mr Mitchell also organised a CT of the left shoulder on 23 January 2009.  It was reported there was reduced coracohumeral distance with internal rotation.  The apposing cortical and sub-cortical lesion of the anterior humerus was a suggestive secondary sign of impingement.

175     On 23 July 2009, Mr Mitchell carried out a left shoulder scope – deco – AJC excision and coracoplasty.

176     It was found there was “normal articular cartilage, glenoid labrum frayed posteriorly – tidied up with shaver, normal biceps tendon, rotator cuff intact and no loose bodies.  Subacromial space bursal hypertrophy, space tight.  CA ligament tight.  Coracoid very prominent, spurs projecting posteriorly.”

177     In terms of the future conduct of the condition, it was noted strengthening work to commence in two months and forceful activity not to be undertaken for three months.

178     A left shoulder ultrasound was organised by Dr Perry in February 2011.  It was reported there was intact and normally positioned biceps tendon.  There was a thin subscapularis but it was intact.  There was a full thickness supraspinatus tear.  No rotator cuff tear was seen elsewhere.  There was also evidence of subacromial bursitis, and no other abnormality was seen.

179     An MRI of the left shoulder was organised by Mr Mitchell in May 2011.  It was reported that there was good post operative alignment.  No rotator cuff tear was identified.  A small amount of fluid in the subacromial bursa was noted in an otherwise satisfactory appearance.

Compensation

180 By letter dated 14 December 2010, CGU accepted liability pursuant to s 98C for the plaintiff’s left shoulder injury suffered on 5 October 2005.

The Defendant’s Medico-legal Evidence

181     Mr Simm, orthopaedic surgeon, examined the plaintiff on 20 December 2006.

182     The plaintiff told him that around 3 October 2005 she noted increasing soreness over her left shoulder and attended her general practitioner two days later, who suggested she should submit a WorkCover claim, but she declined to do so at that time.  Investigations were carried out.

183     The plaintiff returned to normal duties and continued to suffer with left shoulder pain which gradually worsened over the next twelve months, and she went to a doctor a number of times.

184     When examined by Mr Simm, the plaintiff complained of constant ache in her left shoulder and she was unable to reach overhead.

185     Mr Simm reported the plaintiff presented in a straightforward and cooperative manner.  There was no abnormality on inspection of the left shoulder.  Mr Simm noted active movements of the shoulder were markedly restricted and were associated with a quite severe pain response.

186     Mr Simm reported that it was not possible to adequately assess subacromial impingement of rotator cuff function and whether or not there was capsulitis because of the plaintiff’s pain response.

187     Mr Simm thought the factors contributing to the plaintiff’s condition were a partial tear of the supraspinatus tendon and possible adhesive capsulitis.  He noted it was difficult to determine whether the marked restriction of movement was due to pain or whether there was a loss of glenohumeral movement from secondary adhesive capsulitis.  Mr Simm also thought the plaintiff suffered recurrent left shoulder strain as a result of performing physical work duties.

188     The plaintiff confirmed that there was a considerable amount of physical work involved in her job with the defendant which included physically assisting and lifting disabled clients.  Mr Simm thought the injury was probably an aggravation of underlying degenerative supraspinatus pathology, and commented that the partial tear of the supraspinatus tendon may be a degenerative tear rather than a traumatic tear.  He accepted that there was work related aggravation of the supraspinatus pathology and the work component had not resolved, and the condition was still materially contributing to the plaintiff’s incapacity for work and need for treatment.

189     Mr Simm then thought the plaintiff had a very limited work capacity.  He concluded she presented with a common condition, with evidence of rotator cuff pathology in the left shoulder which had led to progressively severe symptoms from left subacromial impingement.  He noted the condition now seemed to be complicated by a severe pain response and loss of movement of the left shoulder. 

190     Whilst the underlying condition was degenerative in nature, Mr Simm accepted that the work duties as described could be responsible for aggravating this condition.  He suggested further investigation with an MRI.

191     Mr Jonathan Hooper, orthopaedic surgeon, examined the plaintiff in August 2008.  She told him that her trouble started about mid 2005 and she continued working for a year with discomfort but ceased in October 2006, attributing her shoulder pain to having to lift heavy clients.

192     On examination, there was limited active movement; however, a full passive range of motion of the left shoulder in terms of flexion, abduction and rotation.

193     Mr Hooper thought the plaintiff clinically had a significant tear in her left rotator cuff.  He believed that had been demonstrated with an ultrasound but also believed the cuff tear was extended when her arm was manipulated by Mr Kierce, though he did not warn the plaintiff that may occur. 

194     Mr Hooper thought the plaintiff’s shoulder should be operated on and that she should have a subacromial decompression and that attempts be made to repair the cuff.  He noted that was possible now because the plaintiff had a full range of motion in the shoulder passively.

195     Mr Hooper thought it could be regarded that the plaintiff’s employment was a contributory factor to the development of rotator cuff pathology that she had which had ended up with significant tear in the cuff.  He thought the plaintiff’s present condition and restrictions would be permanent unless the shoulder problem was attended to surgically.  He then thought the plaintiff’s condition had stabilised, and her prognosis was fair.  He considered the plaintiff’s function may be improved by surgical intervention, which should be undertaken.

196     Mr Peter Scott, consultant surgeon, examined the plaintiff on behalf of CGU on 30 March 2009.

197     The plaintiff told him she developed left shoulder pain and discomfort in late 2005 with heavy manual lifting, and it became more apparent and slowly deteriorated, and in October 2006 she had to cease work.

198     On examination, there was some restriction of left shoulder movement, and the plaintiff complained of pain to deep palpation over the left acromioclavicular joint.

199     Mr Scott thought it appropriate for the plaintiff to undergo an arthroscopic procedure for diagnostic and therapeutic purposes for her ongoing left shoulder rotator cuff lesions where there was definite evidence of pathological abnormalities noted on an MRI in January 2009.  He thought the proposed surgery related to the development of a problem that became apparent under compensable circumstances in late 2005 as a result of the nature of the plaintiff’s work.  In his view, there was nothing to suggest a non work related factor being apparent

200     Mr Scott hoped that following any surgery to the shoulder – namely rotator cuff repair and or excision of the arthritic acromioclavicular joint - the plaintiff would expect maximum improvement within four to six months, with a reduction in pain and increased range of movement

201     Mr Scott diagnosed a left shoulder rotator cuff lesion developed under compensable circumstances, such diagnosis being based on the history, the physical findings, and knowledge of radiological studies.  He then thought the plaintiff had minimal capacity for work, and in particular any job which required use of the left upper limb.  He thought she would be able to take up some very light work not using that limb to perform any pulling or pushing or raising her arm above shoulder level.

202     Mr Schofield, orthopaedic surgeon, carried out an AMA assessment on behalf of CGU in October 2010. 

203     The plaintiff denied any history of shoulder problems until late 2005, telling Mr Schofield of the heavy nature of her work.  She told him she persisted with her work until she was unable to cope due to the further deterioration of her condition.  He noted the second MRI in January 2009 confirmed a partial thickness tear of the supraspinatus and degenerative changes in the left AC joint and the left glenohumeral joint. 

204     Mr Schofield noted the main aim of the surgery was to alleviate impingement through the range of movement in the shoulder.  He noted unfortunately the post operative routine was shortened because of the severe ill health of the plaintiff’s son.

205     On examination by Mr Schofield, there was deltoid wasting over the left shoulder girdle.  The plaintiff’s range of movement was restricted and she had a positive impingement test.

206     On the available evidence, Mr Schofield thought the plaintiff had suffered post traumatic capsulitis as a result of the repetitive physical work in which she was involved whilst working as a Division 1 nurse from 2003.  He noted initial complaints had been recorded from 2004 and there was a gradual increase in those complaints to such a degree the plaintiff ceased work in October 2006.  As the plaintiff in his view continued to have significant disability he recommended a repeat x‑ray of the left shoulder and MRI scan, and an x‑ray and MRI scan of the cervical spine.

Treaters Relied on by the Defendant

207     Mr Kierce wrote to Dr Joyce in February 2007.  He advised that he had found under anaesthetic that the plaintiff’s left shoulder had a full range of movement without any evidence of adhesive capsulitis.  He thought she was suffering from inflammation of her rotator cuff, but medication in relation thereto disagreed with the plaintiff, causing side effects. 

208     Mr Kierce advised all the plaintiff could do was to continue with a series of exercises to get her shoulder moving.  He noted that when he saw her on 5 February she was able to get her left hand just behind her back, which was definitely an improvement on the original range of motion.  He therefore discharged the plaintiff to Dr Joyce’s care.

209     Mr Cunningham wrote to Dr McAllan on 24 July 2007.

210     Mr Cunningham advised Dr McAllan of a review of the plaintiff on 20 July 2007 when she held her left arm tightly against her chest and appeared to have global pain throughout the shoulder with pain radiating into the deltoid insertion.  He noted she was exceedingly reluctant to actively move her shoulder, but a passive range of movement was or appeared to be relatively pain free to about forty per cent of normal movement.  He noted that the plaintiff reacted in the extreme to palpation of the shoulder initially, and it was very difficult to localise pain, but she may have had increased discomfort over the acromioclavicular joint.

211     Noting a normal bone scan of 16 July 2007, Mr Cunningham advised Dr McAllan he thought the plaintiff’s reaction to the pain was excessive.  He offered her an injection, which she would not consider.  He did not believe her condition required an operation, and once again there was little he could offer her. 

212     Mr Cunningham noted that the plaintiff’s level of pain at the end of the interview and examination appeared subjectively to be much less than it was on her original entry into the office.

213     Mr Cunningham provided a report dated 12 August 2007 which was also relied upon by the plaintiff. 

214     Dr McAllan wrote to Dr Wood on 23 July 2007 thanking him for seeing the plaintiff. 

215     Dr McAllan noted the plaintiff had a long standing shoulder problem and that she was convinced she had a frozen shoulder although the radiologist had no trouble dilating her shoulder compartment and was not convinced of the diagnosis.  Dr McAllan also noted Mr Cunningham was able to demonstrate an actively inflamed osteoarthritis of the left shoulder and recommended steroid injections but the plaintiff was intolerant thereof. 

216     Dr Hedley Griffiths from the Barwon Rheumatology Service saw the plaintiff on referral from Dr McAllan in August 2007.

217     On examination, the plaintiff was greatly distressed, holding her left arm in a very protective posture.  She was wearing a full sling.  There was no swelling or muscle wasting.  Dr Griffiths noted the plaintiff resisted most movements of the left shoulder, but the end of range of movement was very soft, rather than the hard end of range of movement that one sees with a frozen shoulder.  Any movement of the left arm appeared to cause extreme pain, even with flexing or extending the wrist, and the plaintiff was tender to pressure throughout the left arm.

218     Dr Griffiths thought if the plaintiff truly had a frozen shoulder her reaction to the condition would appear to be right out of proportion to what one normally saw.  In his view, the plaintiff had a regional pain syndrome with hyperaesthesia and stiffness involving the whole of the left arm.  He advised her to stop wearing the sling, stop taking the anti psychotic Haloperidol, Endone and diazepam, and to use paracetamol and hot packs for pain. 

219     Dr Griffiths did not believe the plaintiff was truly allergic to steroids.  He suggested she take Prednisolone 10 mgs twice daily for a limited course of two weeks, which he noted was usually quite effective for people with capsulitis of the shoulder, and he asked the plaintiff to see him for a review in a month.

220     Mr John Nelson, orthopaedic surgeon, saw the plaintiff referral from Dr McAllan in January 2008.

221     Mr Nelson thought it was difficult to assess the plaintiff’s current pattern of pain, but overall she said her shoulder was troubling her with pain day and night.

222     On examination, Mr Nelson noted the plaintiff had a slightly unusual affect.  She held her arm protectively, and any movement beyond forty five degrees of abduction was associated with pain, but range of movement was reasonably good including rotation.  She was tender from the base of the neck to the mid upper arm, with withdrawal type response.  There were no neurological abnormalities.

223     Mr Nelson noted a bone scan carried out the previous year showed increased activity in the AC joint, and an MRI scan indicated a few minor issues including AC inflammatory change.

224     Mr Nelson commented that unfortunately whatever started this problem was now far from clear.  In his view, the plaintiff had now entered into a chronic pain pattern syndrome.  She was in a contested WorkCover situation which she obviously found stressful.

225     Mr Nelson found it very difficult to diagnose any specific abnormality; in particular, anything that might be helped by surgical intervention.  He sympathised with the plaintiff’s situation, but noted unfortunately once this pattern had evolved, his experience was that no intervention was likely to be helpful.  He also noted the plaintiff had a number of particular personal and medical issues which were complicating any treatment options, and unfortunately at that stage he had little else to offer her.

226     The plaintiff was admitted to the Hamilton Base Hospital on 9 February 2010.  The principal diagnosis was of “headache of unknown origin? Stress related.” The plaintiff was discharged on 15 February.

227     On 4 June 2010, the plaintiff was admitted to the Hospital with a principal diagnosis of “? renal colic”.  She was discharged three days later.

228     Mr Mitchell’s letter to the plaintiff’s solicitors Stringer Clark dated 4 April 2011 was also relied upon by the defendant.

Certificates

229     Dr McAllan certified on 21 November 2006 that the plaintiff would be unable to work for five days.

230     Dr Joyce certified, following an examination on 27 November 2006, that the plaintiff was unfit for any work on 27 November because of rotator cuff injury.  Following examination on 29 December he certified her unfit for a month thereafter because of a rotator cuff injury.  On 27 February 2007, he certified that the plaintiff would be expected to be fit for normal duties on 21 February 2007.

Investigations

231     Dr Pepic of the Hamilton Medical Group organised a left shoulder ultrasound and x‑ray on 29 April 2004.

232     It was reported in relation to the x‑ray there was no soft tissue calcification and no bony or joint abnormality.  There appeared to be a small incomplete supraspinatus tear close to its attachment associated with impingement to abduction shown on the ultrasound.  The cuff elsewhere was intact with no further abnormality evident.

233     Dr Pepic wrote on the report of those investigations that he discussed with the patient she needed physiotherapy and to do light duties for the next few months.

234     There was an x‑ray of the left shoulder on 27 October 2005 organised by Dr McAllan.  It was reported the glenohumeral joint appeared normal.  There was moderate degenerative change at the AC joint, with joint space narrowing and early osteophyte formation.  No soft tissue calcification was identified.

235     Following an ultrasound on the same date, it was reported the biceps and subscapularis tendons appeared normal.  The supraspinatus tendon was intact, but there was some minor thinning anteriorly suggesting an old injury.  No fluid was seen in the subacromial bursa.  There was thickening of the bursa, with evidence of impingement on abduction and forward flexion.

236     There was a handwritten note on the x ray report of “bursitis, would probably benefit from steroid injection into the shoulder”.

237     An MRI of the left shoulder was organised by Mr Mitchell in May 2011.  It was reported there was good post operative alignment.  No rotator cuff tear was identified.  A small amount of fluid in the subacromial bursa was noted in an otherwise satisfactory appearance.

The Defendant’s Lay Evidence

238     Maree Sandford, the defendant’s CEO, swore an affidavit on 7 November 2011 deposing that the plaintiff was employed by the defendant on 15 January 2004 as a casual residential care worker.

239     In a further affidavit sworn on 13 February 2011, Ms Sandford deposed that on 23 November 2006 she received a claim form signed by the plaintiff, referring to an injury to her left shoulder and arm at work more than twelve months before this on 5 October 2005.  At no time prior to lodgement of this claim had the plaintiff reported she had suffered an injury at work to her left shoulder.

240     After Ms Sandford received the claim form, she checked the register of injury books, where there was no entry in the book at Kitchener Street or any other of the defendant’s residences which referred to the shoulder injury suffered by the plaintiff at that time.

241     Having checked the rosters, Ms Sandford confirmed on 5 October 2005 the plaintiff worked for only two hours in the morning at the Kitchener Street premises assisting permanent staff.  This is a respite house, and Ms Sandford confirmed that clients residing there at that time all had good mobility and would not have required particular physical support with their mobility.

242     After the plaintiff lodged the claim, Ms Sandford also spoke to the two employees named as witnesses in the claim form, who each said they did not witness any injury suffered by the plaintiff.

243     In the month prior to the lodgement of the plaintiff’s claim, it had been necessary for Ms Sandford to hold a meeting with her to address complaints made against her for criticising supervisors in the way in which work was allocated to casuals.  This was the second meeting she held with the plaintiff about the same issue, having spoken to her previously on 2 August 2006.

244     The second meeting occurred on 3 October, at which time the plaintiff was particularly concerned about not being given more hours of work.  It was explained to her how hours were allocated and that it was not acceptable for her to criticise other staff and her supervisors in that regard.  The plaintiff was very upset about this discussion and said she would resign.  The claim for compensation was received the next month.

245     From 1 October 2004 to 1 October 2005, the plaintiff earned wages of $8,067.55, a weekly average of $155.44.

Compensation Documents

246     The plaintiff’s claim for compensation, signed by her on 11 December 2006 set out a left shoulder injury on 5 October 2005 while lifting and showering patients and general support work.  She set out that her earnings varied, with pre injury average ordinary weekly gross earnings of $337.84 with no overtime. 

247     On the plaintiff’s claim form, Marilyn Sparrow and Cheryl Storer were named as witnesses to the plaintiff’s injury.

248 Terms of Settlement were signed on 9 October 2008 in which the defendant agreed to pay, on a ‘no current work capacity’ rate, weekly payments from 23 November 2006 to 9 October 2008 and pay reasonable medical and like expenses in accordance with the Act, with a denial of liability.

Correspondence

249     The plaintiff wrote to the defendant on 9 March 2007 seeking a permanent position as a supervisor at Rippon Road.  In that letter she noted she had been fortunate to be employed for the previous three years on a causal basis.  She advised that she sought the permanent position as she would like to gain more stability and regular hours.

Overview

250     I am satisfied the plaintiff suffered a compensable injury to her left shoulder in the course of her employment with the defendant as a result of her physically demanding job as a personal carer from early 2004, with the first report of a shoulder problem to Dr Pepic in April of that year, until October 2006 when her employment effectively ceased.

251 I am mindful of the fact that the defendant accepted liability for an impairment benefit pursuant to Section 98C of the Act.

252     This acceptance of liability may not be binding but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171 such admission should ordinarily be regarded as very significant … albeit not conclusive because a defendant may in a particular case might be able to satisfactorily explain its conduct.”

253     As counsel for the defendant conceded, there was not much strength in an argument in this case that the plaintiff did not develop left shoulder symptoms as a result of her work with the defendant.  It was submitted however that in more recent times, the plaintiff’s ongoing shoulder complaints were difficult to explain on an organic basis.

254     The plaintiff’s left shoulder condition was initially diagnosed as supraspinatus tendonitis by her general practitioner Dr Joyce and treating orthopaedic surgeon Mr Kierce.  In November 2006, the plaintiff was first certified unfit for work due to a rotator cuff injury, that condition having first been diagnosed following the incident at work in October 2005. 

255     Early investigations were also confirmatory of a tear of the rotator cuff.  The ultrasound of 8 November 2006 showed a partial tear of the bursal margin of the supraspinatus tendon, the 27 December 2006 MRI showed a rotator cuff tear and on the 28 January 2009 MRI, a small partial thickness articular surface tear of the supraspinatus tendon was reported.

256     Whilst Mr Nelson, Mr Cunningham and Dr Griffiths who all saw the plaintiff following the manipulation under anaesthetic (January 2007) and the hydrodilatation (May 2007) thought there were difficulties making a diagnosis due to the plaintiff’s presentation on examination with her amplification of symptoms, Mr Mitchell thought surgery was appropriate in July 2009.

257     In any event, despite their comments which somewhat questioned the genuineness of the plaintiff’s complaints, Mr Cunningham recommended injections of local anaesthetic and cortisone under ultrasound guidance and Dr Griffiths suggested a trial of Prednisolone. 

258     Early medico-legal examiners were supportive of there being an organic basis to the plaintiff’s complaints.  Mr Simm in 2006, whilst finding a severe pain response, thought there was evidence of rotator cuff pathology and suggested an MRI scan be carried out. 

259     In August 2006, Mr Hooper thought there was clinically a significant tear in the left rotator cuff and that the plaintiff needed surgery.  In March 2009, Mr Scott diagnosed rotator cuff lesion and thought surgery was appropriate.

260     Mr Mitchell operated in July 2009, after having the results of the January 2009 MRI scan.  He did not find a tear during the surgery nor was one indicated in the April 2011 MRI scan he arranged.  A full thickness supraspinatus tear was however found on the February 2011 ultrasound.

261     The presence or otherwise of a tear is not determinative of the plaintiff’s application.  For leave to be granted, I must be satisfied the plaintiff has an organically based shoulder condition, to which her employment with the defendant materially contributes, that is serious and permanent. 

262     Following the surgery, in October 2010, Mr Schofield diagnosed post-traumatic capsulitis, finding wasting of the left shoulder on examination. 

263     Whilst noting other examiners had commented there was a greater degree of restriction of shoulder movement than expected on purely physical grounds, in October 2011, Mr Huffam found considerable shoulder dysfunction and restriction of movement when he examined the plaintiff.

264     There was no mention by either of these recent medico-legal examiners or the plaintiff’s treating surgeon Mr Mitchell of there being any functional element in the plaintiff’s presentation or the presence of a chronic pain syndrome.

265     Mr Mitchell’s final view was simply he did not have any further treatment to offer the plaintiff, not that she had recovered.  He referred the plaintiff for further physiotherapy treatment.  Mr Mitchell was not cross examined.

266     In this case, where there is some evidence of a pre existing left shoulder/fibromyalgia condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from her work with the defendant is serious and permanent.

267     In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”.

268     This analysis was recently approved by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60.

269     In cross examination, the plaintiff was referred to her general practitioner’s note of a diagnosis of fibromyalgia in both July 2002 and June 2005 and a prescription for Tramal in July 2003.  Whilst she had had problems with her hip going out for many years after a hard labour, the plaintiff maintained she was fine in terms of the rest of her body.  She could not remember having widespread pain over the years.  She had however had chest pain since the assault at work in 1993.

270     The plaintiff attended a chiropractor three times in 2003.  The treatment which was focussed on her neck at C4, also involved some shoulder manipulation.

271     Taking into account this small amount of treatment and also the plaintiff’s ability to work in disability services without difficulty before 2004, I am not satisfied that before that time, the plaintiff had an ongoing left shoulder problem of any particular significance.

272     What then are the consequences of the plaintiff’s left shoulder impairment and are they permanent and serious?

273     Looking first at the plaintiff’s evidence, as Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:

“… 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.”

274     Whilst prior to the surgery, Mr Nelson, Mr Cunningham, Dr Griffiths and to a limited extent Mr Simm thought there was some pain amplification and pain behaviour in the plaintiff’s presentation, there was no film or other evidence challenging genuineness of the plaintiff’s current complaints of pain and restriction.

275     I found the plaintiff to be a truthful witness, although the cradling of her arm whilst in court may have been somewhat an overreaction to her situation.

276     I accept that particularly since mid 2006, the plaintiff has suffered constant left shoulder pain, variable in nature, that has not been relieved to any appreciable extent by a number of medical procedures, including surgery.

277     I note Mr Mitchell’s concern that the plaintiff’s post surgery recovery may have been impaired by her not undergoing normal post operative management due to her son’s illness and later death.  Having seen her two weeks after the surgery, Mr Mitchell did not see the plaintiff again until almost two years later. 

278     Whilst Mr Mitchell may have felt the surgery to be largely successful, I accept that the plaintiff still suffers pain and restriction in her left shoulder.

279     The plaintiff continues to require medication for pain relief.  Presently she takes no less than four, and at times, up to eight Nurofen Plus or Panadeine Forte a day.  Her doctor saw the need to prescribe stronger medication such as Valium, Tramal and Endone in the past but the plaintiff had a problem with addiction and had to be weaned off this medication initially by the pain management specialist Dr Griffiths and later by her own general practitioner.

280     The plaintiff has required ongoing physiotherapy from Tania Aitken since July 2011 having last had treatment of this nature from Jennifer Pollard in mid 2010.  Further, the plaintiff continues to undertake exercises at home on a regular basis.

281     The plaintiff has not worked to any extent since about October 2006.  She attempted a return to work in February 2007 some weeks after the manipulation, although Mr Kierce thought she should be off work for two months following that procedure However, she did not last for more than a day due to her left shoulder pain.

282     Whilst the plaintiff was requesting more work at the end of 2006, I accept she was in pain at that time and her request for increased hours was due to financial pressures.  Her ongoing problems at that time were evidenced by Mr Kierce’s decision to undertake the manipulation in January 2007 and the later hydrodilatation organised by Dr Joyce.

283     In these circumstances, I do not accept that the plaintiff was 100 per cent as reported by Dr Joyce in February 2007- she was just keen to return to work and wanted to be certified fit to do so.

284     Whilst the plaintiff applied for the full time Rippon Road job the following month, the work was as a supervisor with little hands on nursing or client care.

285     I accept that the plaintiff does not have a capacity to return to nursing duties, unrestricted personal care attendant work or any work requiring extensive use of her left arm, particularly at or above shoulder level.

286     Counsel for the defendant conceded the plaintiff may be precluded from some heavy lifting and some heavier physical work but submitted this was work she did not enjoy, relying on Ms Sandford’s evidence that the plaintiff told her she was going to resign.

287     I reject this submission, accepting the plaintiff’s evidence that she did in fact enjoy her work and that she did not resign and had in fact never resigned from her position with the defendant. 

288     Medico-legal examiner Mr Huffam who saw the plaintiff in October 2011 thought she was not capable of performing any work requiring her to use her left arm at or above shoulder height or any work requiring forceful manoeuvres of her left arm.

289     Whilst not commenting specifically on her work capacity, Mr Schofield thought the plaintiff continued to have significant disability. 

290     Although predating surgery, when Mr Kierce last saw the plaintiff in 2008, he thought clearly she was permanently incapacitated for personal care work, and doubted her physical ability to work as a Division 1 nurse.  He thought there would be a permanent partial incapacity whether the plaintiff had surgery or not.

291     Whilst the plaintiff has applied for a number of jobs recently, these have been on a part time basis with little hands-on work.  The plaintiff misses the social contact of work she enjoyed but is unsure of her ability to work even part time at the moment because she is sore and there has been no resolution of her shoulder complaint despite extensive treatment.

292     The plaintiff’s ability to carry out household and daily tasks has been affected by her left shoulder condition.  Her ability to grasp and hold things with her left is poor.  She can do her housework using predominantly her right hand but has difficulty with activities involving raising her left arm to and above shoulder height.  I accept that the plaintiff continues to experience the classic problems associated with a shoulder injury as submitted by her counsel. 

293     I also accept that the plaintiff’s left shoulder condition interferes with her sleep as she experiences pain if she lies on her left side. 

294     As the plaintiff’s left shoulder pain has persisted for over six years without significant improvement, I am satisfied her impairment in respect thereto is permanent.

295     Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to her left shoulder.

296     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in relation to the left shoulder injury suffered during the period of employment. 

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