Manikanndan v Oorama Education Pty Ltd
[2018] VCC 79
•23 February 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04167
| RAJA MUNEESWARI MANIKANNDAN | Plaintiff |
| v | |
| OORAMA EDUCATION PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 February 2018 | |
DATE OF JUDGMENT: | 23 February 2018 (Revised) | |
CASE MAY BE CITED AS: | Manikanndan v Oorama Education Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 79 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – bilateral shoulder injuries – right shoulder injury – disentanglement of the psychological factors in relation to the physical injury – whether the consequences of the shoulder injuries satisfy the threshold test
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Application for serious injury certificate for pain and suffering damages only in respect of the bilateral shoulder injuries and in respect of the right shoulder injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Slater & Gordon Ltd |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 This application is brought by Originating Motion dated 7 September 2017 in which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for pain and suffering arising from an injury that she suffered in the course of her employment with the defendant between 2012 and 2014.
2 The application made by the plaintiff in this case relies on a physical injury to both her left and right shoulder or, alternatively, to her right shoulder.
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined;
·The plaintiff tendered the following documents:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 1 to 58 inclusive;
·The defendant tendered the following documents:
§Exhibit “D1”, the Casey Superclinic medical notes relating to the plaintiff;
§Exhibit “D2”, the medical records of Marriott Waters Medical Centre in relation to the plaintiff;
§Exhibit “D3”, the Defendant’s Court Book, pages 1 to 51 inclusive.
5 Counsel for the defendant identified the issues in this application as follows:
(i)The consequences of the injury to the plaintiff’s shoulders or, alternatively, the right shoulder only, are now not “very considerable”. The case is a “range case”;
(ii)The plaintiff has not disentangled the psychological reaction to her shoulder injuries in determining the consequences of the physical injury to her shoulders.
6 In the course of the hearing, the credibility of the plaintiff was placed in issue. The plaintiff was challenged on the basis that her right shoulder injuries and complaints arose after an event which was not in the course of her employment.
7 The defendant had previously accepted the injury to both the left and right shoulders had been caused as a result of the plaintiff’s work with the defendant.[1] All of the medical examiners and treaters have accepted that the plaintiff’s work was the cause of the injury to both her left and right shoulders. I accept the injury to the Plaintiff’s shoulders occurred in the course of her employment with the defendant.
[1]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 (31 August 2006)
The statutory scheme
8 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”. The loss of body function is to the plaintiff’s shoulders.
9 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that 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 or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section 38(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) In conformity with Barwon Spinners & Ors v Podolak,[4] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[4]Supra
10 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
11 I have read the exhibited material and taken into account the evidence of the plaintiff in this case in arriving at the decision.
The Plaintiff’s background
12 The plaintiff was born in 1977 and is now aged forty. In 2010, the plaintiff migrated to Australia from India with her husband. The plaintiff lives with her husband and son in an ashram in Carrum Downs. The plaintiff is currently in receipt of Centrelink benefits.
13 The plaintiff was educated in India. The plaintiff obtained an electrical engineering degree in India.[5] After the plaintiff was injured and off work as a result of her employment with the defendant, the plaintiff obtained a Certificate IV in Pathology.[6] In 2016 and 2017, the plaintiff obtained a Masters in primary education from Monash University.[7]
[5]PCB 2
[6]PCB 4
[7]PCB 4
14 The plaintiff worked for three years in telemarketing for the State Bank of India after her graduation in engineering. She then worked for one year as a trainee engineer. A year following that, she worked for one year in computer work related to e-publishing.
15 In 2010, the plaintiff migrated to Australia with her husband. Between 2011 and 2014, the plaintiff worked in childcare-related work with the defendant.[8]
[8]PCB 2
16 Since the plaintiff’s employment was terminated in December 2014, she has not been back to work.
17 The plaintiff is currently applying for primary school teaching roles.
The Plaintiff’s injury with the Defendant
18 The plaintiff commenced work with the defendant in June of 2011. The plaintiff’s initial employment at the childcare centre was casual and she worked in the kitchen. Approximately in 2012, the plaintiff moved her employment into what was known as the “babies’ room”, caring for one and two year olds at the defendant’s childcare facility.
19 In the latter part of 2012, the plaintiff noticed that she was suffering from pain in her left elbow. An investigation scan was taken of the plaintiff’s left elbow on 14 December 2012 and no pathology was revealed. It was at about this time that the plaintiff experienced pain in her left shoulder.
20 The plaintiff was receiving physiotherapy treatment to her left shoulder and was under the care of her general practitioner at the Casey Superclinic, Dr Rajesparasingham.
21 In June of 2013, the plaintiff fell whilst getting out of a bus. She fell onto the ground, and in the process, injured her right elbow. The plaintiff was treated by her general practitioner, Dr Rajesparasingham, on 13 June 2013 for this injury. He records that she slipped and fell on the ground, onto her right elbow.[9]
[9]Exhibit “D1”
22 The plaintiff, in her evidence, accepted that she attended her general practitioner after the fall from the bus and that her symptoms in the right shoulder became worse after that event.[10]
[10]Transcript (“T”) 17
23 The plaintiff had cortisone injections into her left shoulder on 14 June 2013. On 13 July 2013, the plaintiff had cortisone injections to her right shoulder. The plaintiff ceased work in July of 2013.[11]
[11]PCB 3
24 The defendant accepts that the right shoulder injury is part of the work injury. This concession was made by Mr Miles, on behalf of the defendant, in the course of the hearing.[12]
[12]T18
25 The plaintiff was assessed for the purposes of s98C of the Act. The assessment referred to both the left and right shoulder injury and a whole person impairment. The impairment assessment was conducted by Mr Michael Shannon, orthopaedic surgeon, for and on behalf of the defendant.
26 The plaintiff relied upon the authority of Ansett Australia Ltd v Taylor[13] to support the proposition that the defendant had previously conceded that the right shoulder and left shoulder injuries were as a result of the plaintiff’s employment with the defendant.
[13][2006] VSCA 171
27 I find that both the left and right shoulder injuries and disabilities arose out of, and in the course of, the plaintiff’s employment with the defendant. I also find that the symptomology in relation to the left and right shoulder varied over time between 2012 and the date of the hearing.
Medical treatment in respect of the right and left shoulder
28 The plaintiff had an ultrasound of her left shoulder performed on 19 February 2013. The finding of that ultrasound examination was supraspinatus tendinopathy.[14]
[14]PCB 46
29 The plaintiff then had an ultrasound-guided left shoulder injection performed by Dr Mark Cooper on 14 June 2013. In the period from early 2013 to August 2016, the plaintiff was under the care of the general practitioner, Dr Rajesparasingham.
30 In respect of the right shoulder, the plaintiff underwent an ultrasound examination on 3 July 2013. The finding on that examination was that the plaintiff suffered from supraspinatus tendinopathy and impingement in abduction on the right side.[15]
[15]PCB 48
31 On 12 July 2013, the plaintiff underwent a right shoulder injection by Dr Mark Cooper. The injection was cortisone and local anaesthetic under ultrasound guidance.[16]
[16]PCB 49
32 In August 2013, the plaintiff was referred to Mr Bryce Willoughby, physiotherapist, for treatment. Mr Willoughby treated the plaintiff for left and right shoulder symptoms until December of 2016.[17] Mr Willoughby treated the plaintiff on a monthly basis for the first year.
[17]PCB 24 and 29
33 The plaintiff was then seen by Mr Justin Hunt, orthopaedic surgeon, on 24 October 2013.[18] She had her final visit with Mr Hunt on 17 February 2014.[19] Mr Hunt recommended conservative management of the plaintiff’s condition and did not advise surgery. He advised the plaintiff that she not engage in the heavy physical work such as her previous employment with the defendant.[20]
[18]PCB 31
[19]PCB 32
[20]PCB 31-37
34 The plaintiff attempted a return to work in August of 2014 but was unable to do the modified duties required of her. Her employment was terminated in December 2014.[21]
[21]PCB 3
35 The plaintiff was under the care of the general practitioner, Dr Rajesparasingham, until 20 August 2016. On that occasion, the plaintiff attended complaining of pain in both shoulders which was becoming worse and it was difficult to type on the computer. The plaintiff was given the following prescriptions on that day:
“MOBIC CAPSULE 15 mg 1 cap daily c.c.
PANADEINE FORTE TABLET 500mg/30mg 2 q.i.d. m.d.u.”
36 This entry is made in the clinical notes of the Casey Superclinic, which was exhibit “D1” in this proceeding.
37 There was no indication in the clinical notes that the prescriptions were given with repeat prescriptions.
38 The plaintiff, in her affidavit dated 21 December 2017, stated that she attended the Marriott Waters Medical Centre in Lyndhurst.[22] The clinical notes for the Marriott Waters Medical Centre were exhibit “D2” in the proceeding.
[22]PCB 7, paragraph 6
39 On 7 November 2016, the plaintiff attended Dr Kee Wong at the Marriott Waters Medical Centre. The plaintiff complained of:
“Bilateral supraspinatus tendinosis – injury 2013 – pain on and off since – given moloxicam [scil Meloxicam) 7.5 for it – too sore to type for assignment – needs extension
- local heat/massage.”[23]
[23]Exhibit “D2”
40 On that day, Dr Wong prescribed the plaintiff with Mobic capsules, 7.5-milligams, one daily. In that entry, there was no notation indicating that repeat prescriptions were given to the plaintiff. I note that the amount of Mobic was half the prescribed amount given by her previous general practitioner.
41 There was no report from the Marriott Waters Medical Centre’ general practitioner practice in relation to the plaintiff’s treatment or condition tendered in this case.
42 In the plaintiff’s evidence on 8 February 2018, the plaintiff stated that she had changed her general practitioner since she returned from India over the Christmas break for the year ending 2017. The new medical practice was described as Cranbourne Home Clinic.[24] There was no report or medical records or clinical notes from the Cranbourne Home Clinic in relation to the plaintiff’s treatment and or condition. The Cranbourne Home Clinic is said to be the current general practitioner practice caring for the plaintiff and her shoulder condition.
[24]T12-13
43 The plaintiff stated that her current treatment was medication of four Panadeine Forte tablets per week, together with approximately four anti-inflammatory Meloxicam per week. She stated that she carries out exercises on her shoulders at home and applies heat packs to her shoulders in order to ease the pain.[25]
[25]PCB 7, paragraph 6
44 In her evidence, the plaintiff stated that she was given prescriptions in 2017 for the medication she was taking.[26] She stated that she obtained those prescriptions from the Marriott Waters Medical Centre. She stated that she was given five repeats at least. It was the agreed position of the plaintiff’s counsel and the defendant’s counsel that the last prescription in relation to the plaintiff’s shoulder injury was for Mobic prescribed on 7 November 2016 by Dr Kee Wong from the Marriott Waters Medical Centre.[27]
[26]T68
[27]Exhibit “D2”
45 I find that there is no independent corroboration of the plaintiff’s evidence in relation to the prescribing and or taking of the medication of Panadeine Forte and Mobic at this time. Both of these medications are prescription medications. I do not accept the plaintiff’s evidence that she is taking the medications in the amounts she states in her evidence, or the frequency with which she states she is taking those medications. This matter was always going to be an issue in this case and reports from either her most recent general practitioner or the general practitioners from the Marriott Waters Medical Centre setting out the medications the plaintiff was currently taking and prescribed, would have been an easy matter to attend to. It was not done in this case.
Medical opinions
The Plaintiff’s doctors
Dr D Rajesparasingam, General Practitioner
46 Dr Rajesparasingam prepared a report dated 9 August 2016.[28] In a very short report, Dr Rajesparasingam set out his diagnosis as supraspinatus tendinopathy of both shoulders and rotator cuff syndrome of both shoulders. He thought the prognosis was uncertain, as the plaintiff had suffered the condition for more than two years at the time of his writing of the report. He opined that the condition usually has a good prognosis where patients recover within twelve to eighteen months.
[28]PCB 20
Dr Dominic Rillstone, General Practitioner
47 Dr Rillstone is a general practitioner at the Casey Superclinic. He prepared a report dated 29 November 2017. From the content of his report, it is clear that he prepared it from the clinical notes and had not examined the plaintiff personally. The report sets out the diagnosis of the plaintiff’s right and left shoulder injuries as tendinosis and subacromial impingement. The opinion outlined in this report by Dr Rillstone relies upon the last available evidence of August 2016. He noted that the injuries to her shoulders would, to a moderate degree, affect her activities of daily living and, less predictably, to her recreational activities.[29]
[29]PCB 22
48 There was no medical report tendered in this case from Dr Kee Wong, who treated the plaintiff on 7 November 2016. There is no report from any general practitioner after the report of Dr Rillstone.
Bryce Willoughby, physiotherapist
49 Mr Willoughby prepared reports dated 9 March 2016, 10 October 2016 and 7 December 2017. Mr Willoughby treated the plaintiff from August 2013 until December 2016 for her bilateral shoulder condition. In a report dated 18 May 2015, Mr Willoughby stated:
“Since Raja has ceased this style of work, her pain and symptoms have settled.
If Raja was to [be] employed in a position such as teacher’s aide or pathology nurse, she would have no pain or symptoms and her injury would not come back.”[30]
[30]DCB 51
50 It was clear that Mr Willoughby’s opinion was that if the physical aspects of the work were removed, then the plaintiff’s condition would improve.
51 The plaintiff’s evidence is that she has not worked since September of 2014 and still suffers from the pain and other symptoms in her right and left shoulders. The right shoulder is the more dominant injury.
Mr James Hunt, Orthopaedic Surgeon
52 Mr Hunt prepared a report dated 15 December 2017.[31] In the body of that report, Mr Hunt stated that he had not seen the plaintiff since February of 2014.[32] Nevertheless, in his report dated 15 December 2017, he stated that, on his examination, the plaintiff had a reasonable range of motion on all planes of both shoulders and the elbow. She had reasonable power on testing the supra and infraspinatus, although she had a negative impingement sign on examination of both shoulders.[33] Mr Hunt’s recommendation was that given that her symptoms were ongoing, an MRI scan and x-rays of each of her shoulders would be his suggestion. The scans would clarify the pathology in the plaintiff’s shoulders. The plaintiff had already had ultrasound-guided injections and whilst these helped her in the short term, they had not been effective in the longer term.[34]
[31]PCB 31-37
[32]PCB 34
[33]PCB 31
[34]PCB 32
53 Mr Hunt’s opinion in relation to the plaintiff’s prognosis was as follows:
“Impingement syndrome is a condition which has a spectrum of presentation. It’s (sic) features are that of shoulder pain. Often there is a painful arc with overhead movements and everyday activities resulting in aggravation of symptoms. The prognosis of subacromial bursitis and rotator cuff tendinitis is often with conservative management it will settle with time if the individual avoids activities that aggravate the symptoms. Therefore the prognosis could be for recovery but could be ongoing pain symptoms. … Therefore it is not possible to tell as I have not seen Mrs Manikanndan for several years as to the nature of her current symptoms.”[35]
[35]PCB 33
54 Given that Mr Hunt has not seen the plaintiff since 2014, his opinion as the treating orthopaedic surgeon is not of great assistance to the Court in determining the position and condition of the plaintiff’s left and or right shoulder at the present time.
Associate Professor Bruce Love, Orthopaedic Surgeon
55 Professor Love prepared a report dated 4 May 2017 for the purposes of this application.[36]
[36]PCB 38-42
56 Professor Love examined the plaintiff on 4 May 2017. He noted a history that the plaintiff had received a cortisone injection in her left shoulder in June 2013 which she thought was of some benefit. Shortly thereafter, the right shoulder became painful and a cortisone injection was given in the right shoulder in July of 2013.[37] Professor Love noted that the plaintiff’s current treatment at that time included regular exercise and use of Mobic and Panadeine Forte.[38] On examination, Professor Love found that the plaintiff had a restriction of motion in both shoulders, more so on the left than on the right.
[37]PCB 39
[38]PCB 40
57 Professor Love set out his opinion as follows:
“This lady has bilateral rotator cuff tendonitis, more severe on [t]he left than the right, which has been ongoing now for several years. Her prognosis is guarded in view of the failure of conservative measures to improve her.
Surgical treatment could be considered by way of rotator cuff decompression, the outcome of such surgery is not highly predictable in terms of achieving a positive result.
It might be best for her to persist with conservative measures along the lines currently in place in the hope that she can return to employment as a primary school teacher once she finishes the course.”[39]
[39]PCB 40
58 Professor Love prepared a more up-to-date report dated 6 December 2017. He noted in the report that the plaintiff had received treatment described as “Cambodian massage” which gave her short-term benefit.[40] He stated that the plaintiff’s prognosis was as follows:
“Her prognosis might be considered optimistic in that the symptoms that she has experienced have in all probability, been contributed to by her former employment and now that she is seeking alternative employment, the aggravating factors may be avoided.”[41]
[40]PCB 43
[41]PCB 44
59 Professor Love then noted that the plaintiff was currently taking Mobic and using heat packs and Deep Heat.[42]
[42]PCB 44
60 Professor Love’s opinion was that the plaintiff did not have a capacity to perform her pre-injury duties and that that was a permanent position for her. He noted that the plaintiff stated that the social activities, including household tasks such as vacuuming and cleaning, are troublesome for her, and her husband and son would help out with these tasks[43]. In Professor Love’s opinion, these restrictions would continue into the foreseeable future. Professor Love’s conclusion was:
“Her prognosis is guarded but finding alternative employment will be in her best interests.
I am not of the opinion that surgical treatment should be considered in view of the widespread nature of the symptoms.”[44]
[43]TS P30
[44]PCB 45
Recent radiology
61 On 4 December 2015, the plaintiff underwent a bilateral shoulder ultrasound. The findings were as follows:
“Both supraspinatus tendons are heterogeneous, which may suggest mild degree tendinosis, otherwise the rotator cuff tendons are intact.
The subacromial bursae are not thickened with no significant fluid seen inside, however, both are bunched on abduction.
No significant joint effusion at the posterior joint spaces.
Range of movement is preserved on dynamic examination.”[45]
[45]PCB 56
62 On 25 August 2016, the plaintiff underwent a bilateral shoulder ultrasound. The conclusion of that examination was bilateral supraspinatus tendinosis and left subacromial subdeltoid bursitis with impingement on abduction.[46]
[46]PCB 57
63 On 13 January 2017, the plaintiff underwent a right shoulder ultrasound. The conclusion of that examination was an improvement of the supraspinatus tendinitis and bursitis when compared to the previous studies.[47] Whilst there are no expert opinions on these radiological findings setting out a comparison between periods of time, it is interesting to note that the latest of the ultrasounds to the plaintiff’s right shoulder, which she says is the most significant injury to her now, is that she has an improvement from the previous studies.
[47]PCB 58
The Defendant’s medical opinions
Mr Clive Jones, Orthopaedic Surgeon
64 Mr Clive Jones prepared three reports in respect of this matter dated 16 April 2014, 13 May 2014 and 28 July 2015.
65 Mr Jones noted the plaintiff’s complaints concerning her shoulders and that she was slowly improving with physiotherapy. He noted that both shoulders are affected, with the right more so than the left. She was able to sleep but finds it difficult to put her arm into a sleeve, wash her hair and undertake the heavier aspects of housework.[48]
[48]DCB 2
66 Mr Jones gave his opinion as follows:
“… In view of the fact that the rotator cuff shows no sign of injury or rupture, the long term prognosis is thought to be good. Surgical treatment does not appear to be indicated.
…
Essentially, the problem appears to be a shoulder bursitis, more prominent on the right than the left side.
…
The condition is resolving in both shoulders. A further six months should see it fully resolved.
…
The long term prognosis is for this injury should be good. Residual disability from it is not expected.”[49]
[49]DCB 2-4
67 The second report of Mr Jones dated 13 May 2014 is predominantly a repeat of the initial report.
68 On 28 July 2015, Mr Jones provided a further report in this matter. He noted as follows:
“A recent increase in pain in the left shoulder led to a new ultrasound being performed at Marina Diagnostic Group on 23/6/15. The shoulder tendon system was again to be found intact, with some shoulder bursitis. Currently, her right shoulder is giving little if any symptoms. Her general health remains good. …
… Her previously affected right shoulder is not producing symptoms currently.”[50]
[50]DCB 11
69 Mr Jones then examined the plaintiff. An examination of the right shoulder on this occasion demonstrated a full range of painless movement and normal shoulder strength.[51] He noted later in his report that when he first saw the plaintiff, which was in 2014, the right shoulder was the focus of her symptoms but, on this occasion in 2015, the symptomology had transferred to the left side.[52]
[51]DCB 11
[52]DCB 12
70 Mr Jones’ reports are very dated in relation to the date of this hearing and other than providing background and historical context to the change in the symptomology between the right and the left shoulder, are of little assistance to the Court in determining the plaintiff’s current condition.
Mr Michael Dooley, Orthopaedic Surgeon
71 Mr Dooley prepared a report dated 4 August 2017. Mr Dooley found on examination that there was tenderness in both of the plaintiff’s shoulder girdles. Mr Dooley diagnosed the plaintiff as suffering from naturally-occurring degeneration involving the supraspinatus tendons of both rotator cuff regions.[53] He noted that the plaintiff now described constant ongoing shoulder pain and major disability.
[53]DCB 18
72 In Mr Dooley’s opinion, there were inconsistent signs in relation to the examination of the shoulders. He stated as follows:
“I would accept that during the course of her childcare work, the type of duties undertaken could cause aggravation of underlying degenerative rotator cuff disease. The onset of pain occurred around five years ago. It is almost three years since Mrs Manikanndan ceased childcare type work. Accepting the soft tissue injury that she sustained, as outlined above, it would be my view that the constancy and intensity of her ongoing pain and her described disability are greater than one would expect to see for her organic condition. I believe that she has had a psychological reaction to her situation that significantly influences her ongoing symptoms.”[54]
[54]DCB 18
73 Mr Dooley did not recommend surgical treatment and maintained that conservative management was the best way to go forward. His opinion was that the plaintiff had a physical capacity for work as a teacher.[55]
[55]DCB 19
74 Mr Dooley, in his report, has clearly raised the issue of a psychological reaction by the plaintiff to the physical symptoms that she now complains about in relation to both shoulders.
Dr Louise Barberis, Occupational Physician
75 Dr Barberis prepared a report dated 30 September 2013. Dr Barberis took a history from the plaintiff, stating that she had trouble lifting and raising her left arm to do her hair and that she was unable to do up her bra. The plaintiff told Dr Barberis that she was referred for an ultrasound examination for the left shoulder on 18 February 2013 and the findings were a supraspinatus tendinopathy but no evidence of a tear or bursitis. The plaintiff continued working at that stage. On 14 June 2013, the plaintiff underwent an ultrasound-guided cortisone injection into the shoulder which assisted for ten days or so before symptoms recurred.
76 The plaintiff told Dr Barberis that in July 2013, she developed similar symptoms in the dominant right arm, with pain through the shoulder, across into the supraspinatus, and that she had an ultrasound examination which was also consistent with supraspinatus tendinopathy, with evidence of impingement in abduction.[56]
[56]DCB 24
77 Dr Barberis’ opinion was that in 2013, the plaintiff may benefit from repeat cortisone injections into the shoulder joints.[57]
[57]DCB 26
78 Dr Barberis’ report is four-and-a-half-years old and is of little assistance to the Court in determining the plaintiff’s current condition.
Mr Peter Scott, Consultant Surgeon
79 Mr Scott prepared a report dated 5 August 2013 in respect of the plaintiff. Mr Scott took a history from the plaintiff in relation to the injections to her left and right shoulders in the middle of 2013. He then noted as follows:
“Left shoulder. She states that there has been major improvement and no real problems, although she does find some mild difficulty in reaching up and reaching out.
Right shoulder. She states there has only been a 20% improvement and she complains of marked discomfort when reaching up or reaching out or getting her arm behind her back for toileting purposes or to undo her bra or perform any pulling or pushing movements or heavy lifting.”[58]
[58]DCB 45
80 It is of interest in Dr Scott’s report that he obtained a history from the plaintiff regarding her injury as she stumbled out of the bus on 14 June 2013.[59] I have previously noted that I accept that the right shoulder injury arises from and in the course of the plaintiff’s employment with the defendant.
[59]DCB 45
The credit of the Plaintiff
81 The plaintiff’s credibility was questioned in regard to the evidence given by her about the medication she takes at the current time. In particular, the plaintiff stated that she takes Mobic and Panadeine Forte to relieve the symptoms of both her shoulders. The plaintiff was cross-examined about the prescriptions for both of these medications and the fact that the last of the prescriptions were made in November 2016. I am not satisfied that the plaintiff has been taking the medications as described by her in her evidence. The basis for this conclusion is that these medications require prescriptions and the proof of those prescriptions was readily within the control of the plaintiff and her legal advisors. The proof of those prescriptions was not forthcoming and I am not prepared to accept that the plaintiff was taking the level of medication she describes in her affidavit over the whole period on the basis of five repeat prescriptions dating back to August or November of 2016.
82 In regard to the plaintiff’s histories to doctors, it is reasonably consistent throughout the period of time she has been treated or examined by the defendant’s medical practitioners. It is true to say that the symptomology varied from the left shoulder to the right shoulder and back to the left shoulder over the period of time. That is commonly the case in injuries that involve bilateral shoulder injuries where one side will be more symptomatic than the other from time to time. I accept that the plaintiff’s evidence about her symptoms being more pronounced on the one side than the other over the period of time complained about, is a reasonably accurate description.
Consequences of the injury to the Plaintiff
83 The plaintiff relies upon her affidavits dated 2 May 2017 and 21 December 2017. The plaintiff also gave evidence confirming the contents of those affidavits and updated matters from the last affidavit. In those affidavits and her evidence, the plaintiff set out the consequences of the injuries to her right and left shoulders.
Sleep
84 The plaintiff stated in her affidavit material that she wakes at night when she turns onto her shoulder due to pain.[60] In her second affidavit, the plaintiff confirmed the fact that her sleep is disturbed when she rolls on her shoulders. The plaintiff’s evidence is that she does not take any medication to assist with her sleep.
[60]PCB 4, paragraph 14
85 Whilst I accept that the plaintiff may have some interruption to her sleep due to turning over in the course of the night, I do not accept in her case that this consequence is of such a degree that it would qualify as being “very considerable”. The plaintiff has been able to continue with various levels of study since the time of her shoulder injuries. The sleep disturbance has not impacted upon her ability to concentrate and to perform well in her rehabilitation study, particularly the primary education Master’s degree at Monash University.
Pain
86 The plaintiff has consistently given evidence, both in her affidavits and in the course of her viva voce evidence, about suffering pain in her right and left shoulders. Her current complaints are predominantly relating to her right shoulder. In her histories to doctors, the plaintiff has also consistently complained about pain in her shoulders. Over the period of time since the initial determination in respect of her left shoulder, the pain has fluctuated from the left side to the right side and back again. The site of the pain and the level of the pain have fluctuated over the period of 2012 through to the current time.
87 I accept that the plaintiff has suffered intermittent and varying sites for the pain in her left and right shoulder over the period of time. I do not accept that a level of pain experienced by the plaintiff amounts to being properly described as “very considerable”. The plaintiff has given evidence that she uses heat packs and takes Panadeine Forte for reduction in her pain symptoms. I am not satisfied, on the balance of probabilities, that the plaintiff is ingesting the level of Panadeine Forte that she deposed to in her affidavit material. I have previously dealt with this issue earlier in these reasons. Further, I do not accept that the use of a heat pack on a daily basis amounts to a very considerable consequence for the plaintiff in the symptomatic treatment of the pain in her left and or right shoulder.
Medication
88 The plaintiff gave evidence that she was taking Mobic and Panadeine Forte in respect of her treatment regime for pain in her shoulders. I do not accept that the plaintiff is taking the levels of medication set out in her affidavit material and in her evidence before the Court.
89 In respect of Panadeine Forte, the plaintiff’s last prescription for that medication was in August of 2016. The notation of the clinical notes on that occasion do not indicate that there were repeat prescriptions given to the plaintiff at that time.[61]
[61]Exhibit “D1”
90 In respect of Mobic, the plaintiff’s last prescription for that medication was in November of 2016. The notation in the clinical notes for the prescription of Mobic on that occasion does not indicate that repeat prescriptions were given. Further, I note that the prescription for Mobic on 7 November 2016 was at half the level of the prescription for Mobic on 20 August 2016. Neither of the clinical notes indicate that there was a repeat prescription given for that medication.
91 On the balance of probabilities, I am not satisfied that the plaintiff continues to take Panadeine Forte and Mobic four times a week as set out in her affidavit dated 21 December 2017.[62]
[62]PCB 7, paragraph 6
92 The plaintiff stated that the medication known as Meloxicam is the same as Mobic.
Ongoing treatment
93 The plaintiff’s last medical intervention was an ultrasound-guided left subacromial bursa injection on 19 August 2015.[63] Subsequent to that injection procedure, the plaintiff had attended her general practitioners. On the evidence before the Court, the last general practitioner attendances were 20 August 2016 with Dr Rajesparasingham and on 7 November 2016 with Dr Wong. Whilst the plaintiff has given evidence that she attends other general practitioners subsequent to her affidavit of 21 December 2017, there is no detailed evidence about what those attendances were for and what occurred after these attendances on medical practitioners.
[63]PCB 54
94 The plaintiff’s last attendance on the physiotherapist, Mr Willoughby, was in December 2016. The plaintiff is not seeing any other medical treaters or practitioners. The fact that a plaintiff does not receive ongoing treatment from medical practitioners is not of itself a barrier to a finding of serious injury. It is but one of the factors that a court takes into account when assessing whether or not the consequences for the plaintiff are “very considerable”. The ongoing treatment of the plaintiff in this case is an indicator that the overall consequences for her are not “very considerable”.
Lack of mobility
95 The plaintiff, in her affidavits, has described that as a result of the injuries to her shoulders, she has a lack of mobility, particularly in relation to reaching, overhead actions and turning on and off taps. The plaintiff has given evidence that she has some difficulties in showering, dressing, in particular, putting her bra on behind her back, and washing her hair. The plaintiff gave evidence that she now has difficulty driving.[64]
[64]PCB 4, paragraph 14
96 I accept that the plaintiff has some restriction in washing her hair and putting her clothing on. Nevertheless, the plaintiff is able to perform these tasks, including turning taps on and off, and they are properly described as minor restrictions in the conduct of her life.
97 In respect to driving, at the time the plaintiff was injured, she did not have a licence to drive a motor vehicle. In the period of time that she has been injured, the plaintiff has obtained a drivers licence and drives a car around. I do not accept that the plaintiff’s limited use of her arms in driving a motor vehicle is a very considerable consequence for her. The driving of a vehicle is something the plaintiff has achieved since she was injured in her left and right shoulders.
Activities of daily living
98 The plaintiff has given evidence that she does not do any vacuuming at her place of residence and does not clean the bathrooms. She gave evidence that her husband and son assist in the vacuuming and cleaning at her home.[65] The plaintiff has been living at an ashram. She described the place of residence as her family living in one room. This one room was part of a house. The plaintiff also gave evidence that she was able to cook and provide for the family. She lived a normal life on the ashram and attended the services there. I do not accept that the plaintiff’s inability to perform vacuuming and cleaning of the bathroom tasks are a very considerable consequence for her.
[65]PCB 5
99 I find that the plaintiff can perform most of the activities of daily living in a reasonable manner, given her current symptomology from her right and left shoulder injuries.
Sport
100 The plaintiff gave evidence that she cannot play soccer or cricket with her son. It was unclear from the statements made by the plaintiff what level of activity she performed with her son prior to noticing the symptoms in her left and right shoulders as a result of her work. Her son was born in India prior to her arriving in Australia in 2010. He would have been an active young child up until 2012. I am not satisfied, on the state of the evidence, that on the balance of probabilities, that the plaintiff has suffered any significant consequence as a result of her injuries, in the sense that she cannot partake in playing with her son, either for cricket or soccer.
Loss of work
101 Counsel for the plaintiff submitted that one of the consequences of the bilateral shoulder injuries to the plaintiff was that she lost her employment as a childcare worker. I accept that due to her shoulder injuries and disabilities, the medical opinions are that the plaintiff cannot return to childcare work. She has not returned to that work since 2014. However, to her credit, the plaintiff has successfully completed a Certificate IV in Pathology. After completing that qualification, she then went on to complete a Master’s degree in primary education at Monash University. This was a two-year, full-time course.[66]
[66]T40
102 These two qualifications allow for the plaintiff to either become a pathology collector or a primary school teacher. The plaintiff has retained a capacity to work through her retraining in the period between 2014 and the hearing of this application. The opportunity to be a primary school teacher is in keeping with her previous tertiary education qualifications for engineering which she had achieved in India prior to coming to Australia. In the circumstances, I do not find that the loss of the ability to perform the childcare worker role is a considerable consequence for the plaintiff as she has advanced her potential to be a primary school teacher through hard work, study and retraining.
Conclusion
103 I find that the plaintiff was somewhat focused on her pain and disability relating to her right and left shoulders when giving evidence. This focus by the plaintiff has made it difficult to assess the truly organic basis for her complaints of pain and disability. Mr Dooley, in his report, raised the issue of the plaintiff suffering from a psychological reaction to her disability, resulting in an exaggeration of the symptoms relative to the organic basis for her disability. I do not find that the plaintiff was consciously attempting to exaggerate her symptoms in this case. The plaintiff was doing the best she could to give a truthful and accurate description of her pain and disability. However, the evidence relating to her medication regime was less than satisfactory.
104 I find that when taking into account all the consequences individually and collectively, as set out in these reasons, of the injury upon the plaintiff as a result of her left and right shoulder, I am not satisfied that those consequences are “more than significant or marked” and could properly be described as “at least very considerable”. The plaintiff has failed to satisfy the statutory test for serious injury certification in respect of pain and suffering damages.
105 I order that the application for serious injury is dismissed.
106 I will hear the parties on costs.
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