Linley v Eastern Health

[2020] VCC 126

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-19-03016

FIONA LINLEY	Plaintiff
v
EASTERN HEALTH	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2020
DATE OF JUDGMENT:	10 March 2020
CASE MAY BE CITED AS:	Linley v Eastern Health
MEDIUM NEUTRAL CITATION:	[2020] VCC 126

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury application – Pain and suffering – workplace injury -
  right elbow – right shoulder – fibromyalgia – earning capacity –
  modified duties
Legislation Cited:    Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Lu v Mediterranean Shoes [2000] VSCA 65; Herald & Weekly Times Limited v Jessop  [2014] VSCA 292; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I Fehring with Mr D Seeman	Ryan Carlisle Thomas
For the Defendant	Ms M Tsikaris	IDP Lawyers Pty Ltd

HIS HONOUR:

1       Fiona Linley sustained injuries to her right shoulder and right elbow when a patient pulled her arm on 5 October 2013.  This work incident occurred while Ms Linley was employed as a Registered Nurse at the Maroondah Hospital, which is part of the defendant’s network of hospitals. Since that time, Ms Linley has gone on to have surgery to both the right elbow and right shoulder. She has also left work with Eastern Health and gone on to work elsewhere. Ultimately, she alleges, she was forced to leave all work by reason of her injuries, family circumstances and financial situation. She sold her properties in Victoria and moved to a farming hamlet, Natone, on the north-west coast of Tasmania, inland from Burnie. 

2       She comes to this Court alleging that her workplace injury on 5 October 2013 has resulted in a permanent injury to her right shoulder. She argues that the pain and suffering consequences and the loss of earning consequences are serious in accordance with the tests set out in the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”). Prior to assessing the matter in dispute, it is useful to identify those matters which are conceded, or, at least are not heavily in dispute. That will help to frame the critical questions.

3       First, there is no debate that Ms Linley sustained injuries on 5 October 2013 to her right elbow and right shoulder in compensable circumstances. Secondly, Ms Linley brings her claim alleging only that the injury to her right shoulder is a serious injury. She does not allege that her right elbow injury is a serious injury. Thirdly, the parties agree that the injuries to the right elbow and right shoulder cannot be aggregated to demonstrate the consequences of the injury are serious, in keeping with Lu v Mediterranean Shoes.[1] While there was agreement on that principle to be applied, the parties were in dispute as to its factual application. The defendant argued that the plaintiff and the medical material conflated the right elbow and the right shoulder injuries in highlighting the consequences of the right shoulder injury. The plaintiff disagreed and argued the consequences of the right shoulder injury were appropriately delineated from those of the right elbow to enable the Court to make the assessment it was required to. 

[1][2000] VSCA 65

4       Fourthly, while not formally conceding, the defendant did not argue strongly against the proposition that the consequences of the right shoulder injury met the threshold to recover pain and suffering damages. 

5       Once those matters are set out, it can be seen that the critical issue is whether or not Ms Linley can demonstrate a loss of 40 per cent or more of her without injury earnings. While that proposition may be easily stated, it involves a determination of a number of matters. It is useful to set those out, as the resolution of these questions will essentially dispose of the other issues in this case. In sequence, those issues are:

(1)What was Ms Linley’s gross income that she was earning or capable of earning in the three years before and three years after 3 October 2013 that most fairly reflects her without injury earning capacity;[2]

(2)What is Ms Linley capable of earning in suitable employment as at the date of hearing.

[2]Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”), s325 definition of serious injury at (f)

What was Ms Linley’s gross earnings or what was she capable of earning?

6       I turn now to consider the first of those questions. In order to do so, it is necessary to detail some of Ms Linley’s relevant factual background. She commenced a Certificate IV in Nursing in 1999. Then in 2002, she began a Bachelor of Nursing which she completed in 2004. At [5 – 8] of her first affidavit sworn 14 December 2018, she detailed her past work history. It does not illuminate the hours and nature of her work in the three years prior to 5 October 2013 terribly much. The taxation summary handed up by Ms Linley shows earnings of the following amounts in gross figures:

2010/2011	$28,187	(Split between Ringwood Private Hospital (“Ringwood”) and Eastern Health)
2011/2012	$32,112	(Split between Ringwood, Eastern Health and Belmore Employment Services)
2012/2013	$45,013	(Paid by Ringwood)

7       I am unable to determine from these extracts whether the work was full time, casual or permanent part time for example. I was initially attracted to the notion that the year 2012/2013 figure – given the amount – was a basis on which to infer earnings from full time work. I decided against that, given the evidence shows great variations in hourly rates to account for casual or shift loadings which could explain the substantial change in the end amount. In September 2013, Ms Linley commenced with Maroondah Hospital (“Maroondah”) working 50 hours per fortnight on contract. She remained working casually at Ringwood Private. Her situation at the date of the injury was as set out in her Claim Form,[3] working 25 hours per week at $30.93 per hour.  It appears this was for 5 x 10.5 hour shifts from 9.00pm to 7.30am over a fortnight.[4]

[3]Defendant’s Court Book (“DCB”) 150

[4]DCB 150 and 157

8       She was concurrently working at Ringwood Private while working at Maroondah, where she had been working 1 – 4 nightshifts on wards.[5] It seems this work was not full time and varied. It continued after she started at Maroondah but because of the hours worked (afternoon and nights), there must have been some overlap. I do not consider I can simply add Ms Linley’s 25 hours per week at Maroondah to the 1 – 4 shifts at Ringwood to adequately base a finding as to her capacity for without injury work. I do find, contrary to the submission made in closing by Mr Fehring, who appeared with Mr Seeman for Ms Linley, that I can have regard to Ms Linley’s occupational behaviour in determining the figure that most fairly reflects her without injury earning capacity. Mr Fehring submitted,[6] that no regard should be had to the actual deployment of Ms Linley’s capacity in the three years prior to the injury.  Rather, he argued, attention can only be paid to her expressed claim that she was, in the three years prior to injury, ready, willing and able to work up to full time hours.  I reject that proposition as it does not accord with my reading of Jessop[7]. Rather, the Court of Appeal there considered that work habits may have probative value in determining a without injury earning capacity.[8] Utilising this approach leads me to consider not only Ms Linley’s claim that she was ready, willing and able to work 38 hours per week but also to examine all the evidence to see if this assertion is made out. 

[5]DCB 157

[6]Transcript (“T”) 115, Line (“L”) 1

[7]Herald & Weekly Times Limited v Jessop [2014] VSCA 292

[8]Herald & Weekly Times Limited v Jessop  [2014] VSCA 292, at [54]

9       For the following reasons I find it is.  Most importantly, the weekly earnings summary for the previous year shows great fluctuations. By themselves, these fluctuations cannot be explained only by hourly rate variations but are more likely to be because of increased hours being worked.[9] Further, and even though the sample size is small, from the time Ms Linley started on her fixed part time position at Maroondah on 25 hours per week, she did not give up her Ringwood casual work. While it could be said that after starting at Maroondah, there is a downward trend in earnings from Ringwood ($1,313, $782, $451) this is only a small sample size. The fluctuations in earnings and the maintenance of the Ringwood work suggests that Ms Linley was intent on working what hours were given to her. This supports her argument she was ready, willing and able to work up to a full time capacity.

[9]See summary of income documentation 29 January 2020 filed by the plaintiff

10      The defendant did suggest that Ms Linley was only working part time hours to accommodate background medical issues. These were said to be fibromyalgia, a stress-related condition, and headaches.[10] Ms Linley explained she has had fibromyalgia since 2010.[11] This is consistent with her treating doctor’s notes.[12] I was not directed to any other material to support the assertion Ms Linley was not working to her full capacity by reason of her fibromyalgia. I consider it important that despite the diagnosis of fibromyalgia in 2010 and medication from at least 2012, Ms Linley worked on a weekly basis, long shifts, afternoon and nights on both medical and surgical wards.  This is borne out when regard is had to the consultation with Dr Coulter on 2 September 2013. At that time Ms Linley is recorded as complaining of unbearable pain and using OxyContin up to two to three times per day.[13] Her pay records, however, show substantial work at Maroondah and Ringwood at that time. It demonstrates a willingness and desire to work despite her medical conditions. 

[10]T20, L3

[11]T19, L1

[12]Dr Coulter’s notes, at DCB 145

[13]DCB 142

11      While the failure to disclose these matters in her affidavit do affect her credit to some degree, it does not sufficiently detract from the force of her work record which speaks admirably of someone persisting with work.

12      As to Zoloft and Stilnox prescriptions in 2013 (but post-dating the injury), she gave evidence this was to deal with a difficult marital break-up.[14] I accept this explanation overall and I accept Ms Linley’s submission that in considering the figure that most fairly represents her without injury earning capacity, she had a capacity for 38 hours’ work per week.

[14]T22, L8

13      It now falls to fix a figure (or figures) to those hours to arrive at a gross annualised figure from which to make the comparison required in the Act.

14      I have found this task to pose considerable difficulty because of the lack of precise evidence and the multiplicity of possible scenarios. I find the following to be the basis for that assessment:

(1)In the year prior to the injury, Ms Linley worked afternoon and night shifts with Ringwood. At Maroondah she worked nights. This suggests a preference for night and afternoon work. 

(2)As at 2013, she had gone through a relationship break-up and was in a financially difficult position. In that circumstance I consider she would have a motivation to earn and as such would have chosen night shifts as they might have attracted greater loadings.

(3)Assuming she would have exercised her full time earning capacity, and this is likely to have been consecutive nights of work rather than broken nights, I consider this to be four nights per week from 21.30 – 07.30 each night – as at Maroondah being a good guide. That is for 4 x 10 hour shifts. 

(4)The rate of pay at the date of injury ought to be adjusted to 2016 rates to fairly reflect movements in the award rate and indexation. 

(5)I consider Ms Linley would have preferred to remain at one employer working her hours for continuity and stability reasons. This is evidenced by her taking the Maroondah fixed hours contract while she was still undertaking casual work at Ringwood Private Hospital. This leads to my finding that she would have chosen full time work rather than remaining a casual.

(6)Utilising the relevant award in place for October 2016, for a Registered Nurse Level 4, Grade 2, is a weekly gross pay of $1,396 at $36.74 per hour. 

15      The figure to compare for the purposes of the Act is  $1,396. 40% of that is $558.40.

What is Ms Linley capable of earning in suitable employment as at the date of the hearing?

16      The defendant’s primary argument was that while Ms Linley might not be able to return to work on her pre‑injury duties, she had a substantial capacity for work which exceeded the 40% threshold. The defendant’s arguments are persuasive. I find that Ms Linley has at present a capacity to earn in, suitable employment, an amount which exceeds the relevant threshold. This finding flows from a consideration of all the evidence. The first part of this consideration arises from Ms Linley’s actual work history after the October 2013 work injury. She had two months off work. She then returned to work at the end of 2013 for three to four hours per day, three days per week, performing administrative duties. She had right elbow surgery on 13 August 2014,[15] performed by Mr Moaveni. She did not return to work after this and her contract at Maroondah then expired. On 22 November 2013, she had an MRI scan of the right shoulder which was diagnostic for a tear, impingement and synovitis.[16]

[15]Plaintiff’s Court Book (“PCB”) 35

[16]PCB 117

17      She returned to work at Lionswood, an aged care facility, and worked dispensing medications. She was employed as a Level 4 nurse.[17] She worked there for 12 weeks. She deposed to the fact that she found the work difficult and needed to take 2 – 8 Panadeine Forte tablets to get through her shift.  She earned $38.83 per hour in this role.[18] She ceased that work in late September 2015. She remained off work until she commenced work at Holmwood Aged Care in September 2016 as a Registered Nurse. She said her hourly rate was similar to that at Lionswood.  From September 2016 to about September 2017, she worked on average 20 hours per week. In October 2017, she deposed that she reduced this to 16 hours per week on account of her right shoulder injury.[19] She worked in that role to about October 2018 when she ceased work. She stated that she found the work difficult and regularly took Panadeine Forte to help her cope with her work duties.[20] 

[17]Paragraph [8] of plaintiff’s supplementary affidavit, sworn 20 January 2020, at PCB 15

[18]Paragraph [9] of plaintiff’s supplementary affidavit, sworn 20 January 2020, at PCB 15

[19]Paragraph [13] of plaintiff’s supplementary affidavit, sworn 20 January 2020, at PCB 16

[20]Paragraph [14] of plaintiff’s supplementary affidavit, sworn 20 January, at PCB 16

18      There are several issues with Ms Linley’s version of events which lead me to conclude that her evidence as to why she left work is unreliable. At the time she swore her first affidavit in December 2018, she stated she was still working at Holmwood. She clearly was not. This is no more than an oversight I consider and of little moment. More importantly, however, she deposed that the work itself was “… light work except for the trolley which can be difficult to manoeuvre.”[21] She also deposed that reaching for sachets on walls was difficult as were the giving of injections. It was not entirely clear, but Ms Linley deposed to taking Panadeine Forte 1 x per fortnight or Panadol Osteo 3 per day.[22] Given she was not working everyday this indicates that her pain was not specifically aggravated by work. 

[21]Paragraph [54] Plaintiff’s affidavit, sworn 14 December 2018, at PCB 12

[22]Contrasts [48], at PCB 12, with paragraph [14] of the supplementary affidavit, at PCB16, where she claimed her medication intake was the same as at Lionswood, being 2 – 8 Panadeine Forte per shift at [8], at PCB15.

19      It was pointed out to Ms Linley in cross-examination that her last consultations with both Dr Coulter, and Dr Carr, (at the same medical clinic) were in March and April 2016.[23] At this time, she was ceased on all pain medications, Endone, Targin, Naproxen. She did not consult at that clinic while working at Holmwood at all. In her previous work, at Lionswood, between June and September 2015 she had also been seen at that clinic. On 19 June 2015 she was noted to have ceased Tramadol and OxyContin and it was noted that she was taking Mersyndol.[24] At consultations at that clinic on 16 July 2015, 13 August 2015, 2 September 2015, 30 September 2015 and 22 October 2015, there were no prescriptions for medications[25] and particularly no prescription for Panadeine Forte. When pressed as to who was prescribing the Panadeine Forte she deposed she had been using while working at Lionswood and then Holmwood, Ms Linley first suggested it may have been another doctor she was seeing.[26] Ultimately, however, she conceded that there was no treating doctor in 2018 prescribing her Panadeine Forte in respect of her right shoulder.[27] I do note the history given to her pain management specialist, Mr Vivian,in his report of 13 February 2017, that she had tried hard not to take tablets but was using Panadol Osteo and if the pain was bad, three Panadol at once.[28] Once again, that contemporaneous note has no recording of Panadeine Forte being prescribed as was deposed to. The inconsistencies as to her medication intake while on shift at Holmwood are difficult to reconcile. 

[23]DCB 129

[24]DCB 133

[25]DCB 133

[26]T17, L2

[27]T18, L21

[28]Report of Mr Vivian 13 February 2017, PCB 41

20      Ms Linley then appeared to suggest that she was being prescribed Panadeine Forte for her fibromyalgia and that was helping with her right shoulder problems.[29] This treatment for her fibromyalgia was being conducted by a general practitioner near her home (from later tendered material it appears this is Dr Kemm of the Emerald Medical Centre). She made clear that she had not told this general practitioner, Dr Kemm, of her work injury; or of any problems associated with her work injury. Similarly, she had not told Dr Coulter (or doctors at Dr Coulter’s clinic) of the involvement of Dr Kemm and his prescriptions for fibromyalgia. It is difficult to understand how a trained nurse, cognisant of the need to ensure consistency and balance in medications, could not disclose these matters to her treating practitioners.  She admitted it was a relevant mater to disclose to her doctors.[30]

[29]T60, L9

[30]T28, L20

21      Further are the notes of Dr Carr, which provide Ms Linley with no support for her argument that she ceased work as a consequence of her right shoulder injury. In the note of April 2016, which Ms Linley accepted records that she had told Dr Carr that she had reached full range of motion in her right shoulder and was tolerating the pain.[31] This was after her December 2015 surgery and records she was interested in one to two shifts per week.[32] The doctor, in limited form, records “on balance of her mental health and work injury she seems capable of completing full nursing duties …”.[33]

[31]DCB 129

[32]T25, L20

[33]DCB 129

22      During this period Ms Linley was having no physiotherapy, no ongoing general practitioner consultations with her treating doctor for her right shoulder and was not being reviewed by her specialist.[34] She then returned to work with Holmwood on 12 September 2016 at 20 hours per week. After approximately one year, she deposed that she reduced that to 32 hours per fortnight. During the time at Holmwood, she did not return to her physiotherapist, specialist or Dr Coulter’s clinic for medication or treatment for the right shoulder. There are no notes, prescription records or a report from Dr Kemm, the general practitioner who was treating her for her fibromyalgia. This is a significant omission, I consider, given his role in Ms Linley’s treatment. There is a real lack of independent evidence to support her allegation of a limited work capacity in this period.

[34]Mr Moaveni did see Ms Linley on 23 March 2016, where he requested physiotherapy and a gym and pool membership funding for Ms Linley, at DCB 24. He then sees her again on 18 July 2016. He does not confirm the treatment he previously recommended. He refers to her feeling “ongoing shoulder pain and function”, at DCB 25. Ms Linley did not see either Dr Coulter or Dr Carr again after 19 April 2016, at DCB 129.

23      This lacuna in the evidence casts real doubt on the effect of the right shoulder and the effect it was having on her ability to work. It leads me to doubt the effect is as Ms Linley deposes. Further, the personnel file of Holmwood shows that at her reviews in February 2017 she was noted as good at her work and enjoyed it.[35] There is no mention of problems caused with her duties causing worsening right shoulder problems. In fact, she took very few days off.  Through 2018, though, this condition changed. She provided four medical certificates seeking time off work. All of those medical certificates were provided by Dr Kemm, the doctor treating her solely for fibromyalgia. This is significant. Given Ms Linley had been careful to compartmentalise her care between Dr Coulter for her right shoulder and Dr Kemm for her fibromyalgia, it can be inferred that she sought medical certificates to take time off by reason of her fibromyalgia. That is the finding I make. Further, the medical certificates begin in May 2018. There are two weeks off work from 30 May 2018 to 13 June 2018 and then a further month taken off up until 13 July 2018. This is a total of six weeks. I consider this a significant period. It occurs just prior to her resigning from Holmwood. It may be this was to do with fibromyalgia or some other condition, but in circumstances where Ms Linley states she was struggling with the Holmwood work by reason of her right shoulder problems and had to give up because of increasing pain caused by that work,[36] it tells against her that she produced no evidence from Dr Kemm to support that assertion.   

[35]Reference Review 18 February 2017 and 29 March 2018

[36]Paragraph [15] Plaintiff’s supplementary affidavit, sworn 20 January 2020, at PCB 16

24      It is also to be noted that her description of the Holmwood work changed substantially between her first and second affidavits. In her first affidavit, sworn in December 2018 and closest in time to ceasing at Holmwood, she described the Holmwood work as light work, save for the trolley work which was heavier. In her second affidavit, however, she detailed significant increases in residents, which proportionally increased her workload.  She also detailed how she had to attend falls that residents had and pick them up.[37]  None of this was in her first affidavit. There was no adequate explanation as to this significant difference. 

[37]Paragraph [15] Plaintiff’s supplementary affidavit, sworn 20 January 2020, at PCB 16

25      Given the inconsistencies in the evidence and the deficiencies set out above, I cannot be satisfied that (a) Ms Linley left Holmwood by reason of pain and limitation in her right shoulder and (b) that as at October 2018 she had a capacity for only 16 hours per week.  Into this assessment must also come the medical reports. Of most relevance, by reason of the dates of their examination and of reporting (post Holmwood) and expertise, are the occupational physicians Dr Horsley and Dr Bones.  Both seem to reach remarkably similar positions.

26      The first point to note is that Ms Linley complains in her affidavit and her reporting to both occupational physicians as to her right shoulder pain and not her right elbow. This is in keeping with the tenor of her reporting to other doctors, such as Mr Moaveni and Dr Vivian and is consistent with her claim that her right shoulder is the more significant problem.  I accept this to be the state of the evidence and having regard to Lu v Mediterranean Shoes, I consider the right shoulder consequences sufficiently distinct and clear to make a finding as to whether it qualifies as a serious injury.

27      Dr Horsley opined in her report dated 28 February 2019[38] that Ms Linley had a physical capacity for work. She then went on to state that given her pain and current level of frustration, she had no capacity for work.[39] Dr Horsley has not referred to any incapacity associated with fibromyalgia. Given that I have found her pain consequences in large part stem from the fibromyalgia and there is no disentanglement of the fibromyalgia pain from the right shoulder pain, I am not able to find that her right shoulder pain disqualifies her from work.[40] Similarly, as to the emotional consequences which I note additionally might go to (c) consequences, I do not count them.

[38]PCB 75

[39]Dr Horsley seemed to indicate that Ms Linley’s incapacity, in part, stemmed from psychiatric factors, at PCB 74

[40]I would make the point that Dr Horsley had little to no information as to the fibromyalgia condition.

28      Ms Horsley opined that Ms Linley could work in an outpatient setting up to 24 hours per week (three shifts) in the public setting.[41] Her report of 14 November 2019 varies this opinion slightly to one where she opines that Ms Linley has a capacity for 15 to 20 hours which may be able to be increased.[42] Dr Bones took the view that Ms Linley had a capacity for about 25 hours per week working in a nursing role. 

[41]PCB 75

[42]PCB 84

29      Utilising this evidence and considering my finding that Ms Linley did not leave work by reason of her right shoulder injury, I find she has a physical capacity to work up to 24 hours per week (3 shifts per week) in an outpatients setting as opined by Dr Horsley and similarly by Dr Bones. Assuming that was a permanent part time role at $36.74 gross per hour, for 24 hours per week, this is $881.76. This is well in excess of the relevant threshold. 

30      I will not grant Ms Linley a serious injury certificate for loss of earning capacity consequences.

31      Turning to the pain and suffering consequences of Ms Linley’s right shoulder injury. There was limited dispute between the parties as to this point. I will deal with this issue in short form then. Ms Linley has satisfied me that she has sustained a serious injury to the right shoulder for the following reasons:

(a)She sustained a frank tendon injury to the right shoulder and cuff being diagnosed as a tendinosis and lesion;

(b)It caused her to cease work for a period of time and then only return on modified duties;

(c)She attempted treatment with rest, physiotherapy, medication and ultrasound-guided injection, which all failed resulting in surgery on 21 February 2015, being a decompression and bursectomy;

(d)She has returned to work but not as a Registered Nurse in her old role.  No doctor suggests she could return to such pre‑injury duties. I accept the loss of her ability to pursue her vocation is a considerable loss to Ms Linley, as she loved her job and its loss is keenly felt;

(e)She has limited strength and movement in the right shoulder;[43]

(f)She has difficulty carrying her grandchildren, something which upsets her;

(g)She has difficulty with household tasks such as hanging out washing or lifting laundry;

(h)The pain in her right shoulder wakes her at night leading to sleep deprivation which is a significant factor[44], (see Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69).

[43]Horsley Jamar grip strength reduction from 18 and 20 kilograms, PCB 72

[44]Paragraph [19] at PCB 23

32      For these reasons, I am satisfied that the pain and suffering consequences to Ms Linley, of her compensable injury to her right shoulder, meet the statutory test for seriousness and I grant Ms Linley’s application for a pain and suffering certificate.