Mary Grace Sheridan v Victorian WorkCover Authority
[2019] VSCA 54
•19 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0122
| MARY GRACE SHERIDAN | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | BEACH, McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 March 2019 |
| DATE OF JUDGMENT: | 19 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 54 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1431 (Judge Murphy) |
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ACCIDENT COMPENSATION – Application for leave to appeal – Workplace accident – Serious injury application – Injury to right shoulder – Whether soft tissue injury resolved – Whether worker required to disentangle psychological causes of impairment from physical causes of impairment – Whether judge erred in concluding that physical injury resolved – Whether judge erred in concluding that worker failed to discharge obligation of disentangling psychological causes from physical causes – Errors contended for not made out – Injury not satisfying ‘at least very considerable’ test – Application for leave to appeal refused – Workplace Injury Rehabilitation and Compensation Act 2013, ss 325 and 335.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P H Solomon QC with Ms S Manova | Zaparas Lawyers Pty Ltd |
| For the Respondent | Mr S A O’Meara QC with Mr S E Gladman | Hall & Wilcox Lawyers |
BEACH JA
McLEISH JA
T FORREST JA:
On 12 February 2015, the applicant was struck by a heavy steel sliding door in the course of her employment. The door came loose from its tracks and fell forward onto her, pinning her to the boot of a nearby car. As a result of the incident, the applicant suffered injuries to her spine and right shoulder.
By an originating motion filed in the County Court on 28 August 2017, the applicant sought leave, pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) to bring a proceeding at common law against her employer, claiming damages for personal injury. The applicant relied upon para (a) of the definition of ‘serious injury’ in s 325(1) of the Act — namely, ‘permanent serious impairment or loss of a body function’.
The application was heard by Judge Murphy on 24 and 26 April 2018. In the hearing before the judge, the applicant relied upon three different body functions as alternative bases upon which she might establish the requisite serious injury. The body functions relied upon were a serious impairment or loss of:
·the spine;
·the shoulders; and
·the right shoulder.
In respect of each of the three body functions identified by the applicant, the applicant sought leave to commence a proceeding against her employer claiming damages for pain and suffering. Leave was not sought to commence a proceeding in respect of ‘pecuniary loss damages’ as that expression is defined in s 325(1) of the Act.
On 13 September 2018, the judge dismissed the applicant’s application.[1] In dismissing the application, the judge said:
I am not satisfied that [the applicant] has discharged her burden that there is a substantial physical or organic basis for her complaints of spinal and shoulder pain.[2]
[1]Sheridan v Victorian WorkCover Authority [2018] VCC 1431 (‘Reasons’).
[2]Ibid [106] (emphasis in original).
The applicant now seeks leave to appeal against the judge’s order dismissing her proceeding. Her application is limited to her claim for leave to commence a proceeding in relation to her right shoulder. Her proposed grounds of appeal are as follows:
1.The judge erred in concluding that the applicant’s right shoulder injury had resolved (Reasons, [96]; [97]; [107]).
2.The judge erred in concluding that, as a matter of onus, the applicant had:
(a)not established a ‘limb (a) injury’ at the time of the application (Reasons, [102] and [107]);
(b)not discharged her burden as to a substantial physical or organic basis for her complaints of shoulder pain (Reasons, [106]).
On the whole of the evidence adduced, the judge should comfortably have been satisfied as to each of the continuance of the right shoulder injury (sic), and the requisite physical or organic basis for shoulder pain.
In both her application for leave to appeal and her argument in this Court, the applicant’s position was that if she established that the judge erred in the ways contended for in her proposed grounds of appeal, then this Court should determine the extent of the consequences of the applicant’s right shoulder injury and whether those consequences satisfied the statutory test.
While the respondent’s case in this Court was that the applicant’s proposed grounds of appeal were not reasonably arguable, it did not seek to contend that if the judge was shown to have erred then the matter should be remitted to the County Court. If a vitiating error was established, the respondent was content for this Court to determine the issue of whether the evidence established a permanent serious impairment of the function of the applicant’s right shoulder.
The proceeding at first instance
On the hearing of the application in the County Court, the applicant relied upon two affidavits that she swore on 28 April 2017 and 11 April 2018. These affidavits were tendered in the course of her evidence-in-chief, and she was then cross-examined and re-examined. No other viva voce evidence was given on the application before the judge.
The balance of the evidence tendered on the application consisted of medical reports, clinical records, diagnostic reports and some photographs taken of the applicant at her son’s thirtieth birthday party and published on Facebook.
During the course of the hearing, the respondent conceded that the applicant had suffered compensable injuries to her neck, back and right shoulder as a result of the incident. The respondent disputed, however, that the applicant sustained any injury to her left shoulder.
The applicant’s primary case before the judge was that the spinal injury she suffered in the incident constituted a serious injury. In the alternative, she contended that ‘the bilateral use of the shoulders is one body function’ and that her shoulders had suffered an injury which, considered separately from her spinal injury, constituted a serious injury. In the further alternative, the applicant contended that if the Court did not accept a causal link between the incident and her left shoulder condition, then the injury the applicant sustained to her right shoulder (being an injury affecting her dominant arm) ‘in and of itself constitute[d] a serious injury’.
The respondent contended that none of the plaintiff’s injuries gave rise to pain and suffering consequences which could be fairly described as being ‘at least very considerable’ as required by s 325(2)(c) of the Act. It also submitted that, on the medical evidence, the applicant could not satisfy the Court that there was a substantial organic basis for the pain and suffering consequences she relied upon. In the alternative, it was submitted that the evidence did not sufficiently allow for a ‘disentangling’[3] of the physical or organic contributions from the psychological or psychiatric contributions as required by s 325(2)(h).
[3]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 (‘Meadows’) [19].
The applicant’s evidence
The applicant was born in September 1960. She was 54 years of age at the time of the incident, and 57 at the time of trial. After completing her schooling, she worked in a supermarket for 12 years, and later in a market at a butcher’s shop. She stopped work to have children, not returning to work until her children (three sons) were all at primary school. When she returned to the workforce, she obtained employment at Safeway and then worked there for 14 and a half years before moving into the gaming industry for three and a half years working as a gaming assistant. In 2013 she commenced working full time at IGA in Altona — her employer at the time of the incident.
At the time of the incident, the applicant was employed as a cashier in supermarket premises. At the end of her shift, in order to secure the premises, it was necessary to ensure that the heavy steel sliding door to the carpark at the premises was closed. The door was supposed to close electronically, but sometimes the electronic system did not work. The applicant’s evidence was that as she was closing the store on 12 February 2015, the electronic system did not work, so she and two fellow employees attempted to close it manually. One employee was pulling one end of the door and the other was pushing the other end of the door, while the applicant was assisting from the middle. In the process, the door came loose and fell forward onto the applicant. She put her hands up to try to stop it crushing her, but it pushed her back against a car and pinned her.
An ambulance was called, and the applicant was taken to the Western Hospital. She underwent some scans and X-rays and was given panadeine forte before being discharged home. In her first affidavit, she swore that she attended her general practitioner, Dr Al-Raheb, about two days later, telling her that she had pain in her lower back, neck and right arm. She attended Dr Al-Raheb on a number of occasions. Diagnostic tests were performed, and she was referred to a physiotherapist, Mr Strintzos. Subsequently, she was referred to Dr Ong, an emergency and trauma medicine, pain management program and rehabilitation program consultant.
Approximately a week after the incident, the applicant returned to work. She said that she ‘struggled with [her] usual 1:00–9:00 pm shift because of the pain in [her] back, neck and shoulders’. On 29 May 2015, she reduced her hours to 18 hours per week, before increasing them again after a few months to 24 hours per week and later 32 hours per week. Her evidence was that she continued to receive physiotherapy treatment and regular general practitioner consultations ‘as the pain in [her] back, neck and shoulders was still very bad’.
In October 2015, the applicant lost her job at IGA. She started to look for work that did not involve heavy lifting. At the end of March 2016, she started working one night a week at the Sunshine City Club. Her job involved doing bar work and serving tables. In April 2016, she began working at the Powell Hotel in Footscray. She said she worked there for two weeks but stopped because the cleaning jobs she was required to do caused too much pain in her back, neck and shoulders:
The pain was unbearable and I felt I couldn’t cope. I felt depressed because the pain was so bad.
The applicant then commenced working more regularly at the Sunshine City Club. The work was lighter. She said she still had increased pain ‘as a result of working’ and ‘worse pain after working’. Initially she worked about 34 hours a week at Sunshine City Club. At the time of trial she said she usually worked 36 to 38 hours one week and then 33 to 34 hours the next week.
On 8 March 2016, the applicant had a cortisone injection into her right shoulder. She said it did not assist with her right shoulder pain. In her first affidavit, she described ‘continual pain’ in her back, shoulders and neck. The pain in her right shoulder was described as ‘5 out of 10 on a good day and 7 out of 10 on a bad day’. She said that her shoulder constantly ached and that she sometimes experienced shooting pain down her right arm. She described her medications saying that she tried to take as little panadeine forte as possible as she did not want to take too much medication.
In her second affidavit, the applicant described her ongoing right shoulder pain. She also said that she continued to experience constant pain in her low back, and that she had gradually developed pain in her left shoulder. As to her right shoulder, she said:
I continue to have a constant ache in my right shoulder … but more recently my left shoulder pain has been more severe. My right shoulder pain is aggravated when I hold up my right arm for any extended period of time. I try to avoid carrying heavy items in my right hand.
As to her neck pain, the applicant said:
I continue to have pain in my neck. It is a constant type of pressure feeling as if my neck is strained. Sometimes, the pain spreads down into my shoulder blades and sometimes down my arms. Looking up aggravates my neck pain.
In her second affidavit, the applicant also said that she wakes up about twice a night from pain, and struggles to get comfortable. She said sleeping on her left side hurt her left shoulder and the left side of her neck, and sleeping on her right side also aggravated her neck pain. She did not depose to right shoulder pain impeding her ability to sleep.
In cross-examination, the applicant accepted that her main problem at the time of trial was her left shoulder and neck. The applicant was asked and answered the following question:
And so would it be a fair reflection of your current symptoms to say that the main presenting problem at this time is the left shoulder in terms of pain and restrictions?---Yes, I would — I would say that, but it’s also affecting — I don’t know whether it’s coming just from this shoulder, but my whole neck is — is getting affected. Just feels like I’m constantly carrying a weight on the back of my neck, so — and then when I sleep at night it feels like I can’t lie — well, I can’t definitely sleep on this shoulder because it — I just get nerve pain all the time, so I can’t sleep on that shoulder. And then if I lie on this shoulder my neck starts to hurt because of pressure. And then lying on my back I feel dizzy some nights because I’m lying on my neck and for some reason I keep getting dizzy spells … .
In the course of being cross-examined about her right shoulder, and whether the injury to it had resolved, the applicant was asked and answered the following questions:
In terms of your right shoulder injury … is it fair to say that that has now substantially resolved?---I wouldn’t say it’s resolved, no, I do get pain in my right shoulder … and it’s like a nerve pain so it — sometimes it’s here, sometimes it’s on my back with my shoulder, and it can affect just the side of my neck. I feel a lot of pressure across my neck from I’d say both shoulders as well now, more so, but I wouldn’t say it’s resolved, but I can say it’s not as bad as what it was, but I do have pain in my arm.
Would you be surprised to know that Mr Strintzos, at the conclusion of your pain management program reported that that particular injury [the right shoulder] has substantially resolved?---Yeah, I would be surprised because — I don’t think it’s resolved, it’s — like I said, it’s not as bad but it’s not resolved, I — it depends on what I do and how I do things, and I guess when I [underwent] pain management that’s when it helped me the most of — just by listening to other people on how they cope with their pain and to slow down, so — but I wouldn’t say it’s fully resolved because it really isn’t.
The applicant was cross-examined about her current employment and social activities. In the course of this cross-examination, the applicant agreed that her employment involved handling glasses, restocking the bar, some cleaning, stacking a dishwasher, unstacking a dishwasher, collecting empty glasses and wiping down tables. She also agreed that her work involved the use of both of her arms. She agreed that she enjoyed her work and enjoyed good relationships with her co-workers.
The applicant was cross-examined about photographs taken in May 2017 at one of her son’s 30th birthday party. It was put to her that she was able to ‘socialise on that evening’, and that she was able to dance and enjoy the celebrations on the night. She agreed.
In re-examination, the applicant said there were times when she was too tired to cook ― saying that being ‘exhausted from pain’ made her ‘not feel like cooking’. She also said that she no longer vacuums or scrubs the showers. Back pain prevents her from vacuuming, and scrubbing the showers makes her shoulders and arms ‘sore and tired’. Her sons, with whom she lives, help with the cleaning and the heavier domestic chores.
The applicant was re-examined about her right shoulder pain. In re-examination, she said that the right shoulder pain had not fully resolved. On an average day, her right shoulder pain was said to be ‘5 out of 10’.
In re-examination, the applicant was asked to give some examples of things at work or in her day-to-day life that made her symptoms in her back and shoulder change. In her answer to that question, the applicant concentrated on difficulties she experienced bending, with reference to the back pain.
The medical evidence
The medical evidence consisted of a report from Western Health in relation to the applicant’s presentation to the Western Hospital immediately following the incident; reports from Dr Ong; reports from Mr Strintzos; a report from Mr Christopher Pullen, an orthopaedic surgeon who examined the applicant at the request of her solicitors; reports from Dr Gavin Weekes, a pain specialist who examined the applicant at the request of her solicitors; a report from Dr Ales Aliashkevich, a neurosurgeon and spinal surgeon who examined the applicant at the request of her solicitors; clinical progress notes of the St Luke Medical Centre, where the applicant saw Dr Al-Raheb; clinical progress notes of the Watervale Clinic; reports from Dr David Ho, an occupational health consultant who examined the applicant on behalf of the respondent; reports from Dr Tony Kostos, a rheumatologist who examined the applicant on behalf of the respondent; reports from Dr Timothy Entwisle, a consultant psychiatrist who examined the applicant on behalf of the respondent; and x-rays, CT scans, MRIs and ultrasounds taken in respect of the applicant’s spine and shoulders.
In light of the applicant’s proposed grounds of appeal being confined to her right shoulder injury, it is not necessary to describe in any detail the medical evidence so far as it relates to the applicant’s neck, back or left shoulder. The relevant medical evidence so far as the applicant’s right shoulder injury is concerned is to be found in the St Luke Medical Clinic notes and the reports of Dr Ong, Mr Strintzos, Mr Pullen, Dr Weekes, Dr Ho and Dr Kostos.
The clinical notes of the St Luke Medical Centre show attendances by the applicant on Dr Al-Raheb on 13, 16 and 17 February 2015. While the notes are not particularly detailed, the note of 17 February records a complaint by the applicant of right shoulder pain.
Dr Ong provided five reports. According to his reports, he first saw the applicant on 1 May 2015. The applicant’s presenting complaints were neck pain, right shoulder pain and low back pain. In his first report, Dr Ong noted that a bilateral shoulder ultrasound performed on 11 May 2015 showed ‘bilateral subdeltoid bursitis’ and ‘mild right AC joint degeneration’. Under the heading Impression/Diagnosis’ Dr Ong said:
Sub-acute to sub-chronic neck/shoulders/lumbar injuries from musculoskeletal, discogenic, osteoarthritic and degenerative and possibly neurocompressive disease from work injury.
Likely to develop some chronic pain syndrome in due course.
Significant anxiety and mild depression developing.
Adjustment disorder.
Dr Ong’s subsequent reports summarised the applicant’s attendances on him and repeated some matters that had been stated in earlier reports. Dr Ong last saw the applicant on 9 November 2017. In his report of April 2018, Dr Ong expressed his diagnosis of the applicant’s condition as follows:
Chronic pain syndrome of neck/shoulders/lumbar spine from musculoskeletal osteoarthritic and degenerative and discogenic as well as neuropathic components, due to work injury.
Developed persistent pain syndrome, which will continue indefinitely.
Centralisation of pain syndrome.
Significant anxiety and mild depression developing.
Adjustment disorder.
Some PTSD traits from her injury.
Mr Strintzos, the applicant’s treating physiotherapist, provided four reports and a short letter. The reports go into considerable detail in relation to the treatment of the applicant’s neck, shoulders and low back, with emphasis on the applicant’s cervical and lumbar spines.
In his final report, Mr Strintzos noted that, following a multidisciplinary assessment on 10 July 2017, the applicant’s right shoulder injury was considered to have ‘predominantly resolved’. Mr Strintzos expressed the opinion:
Ms Sheridan has mild severity (sic) right shoulder bursitis/impingement. In my opinion her right shoulder injury has stabilised and any mild function restriction is related to the work injury and likely to persist in the foreseeable future.
Mr Christopher Pullen, the orthopaedic surgeon who examined the applicant at the request of her solicitors, saw the applicant on 9 October 2015. Following his examination and review of the material, Mr Pullen expressed the following opinions:
Mrs Sheridan has persistent symptoms related to bilateral subacromial bursitis despite non-operative treatment and would benefit from further investigation. To more accurately determine the cause and plan further treatment of her persistent symptoms a bilateral shoulder MRI scan would be indicated.
…
Mrs Sheridan has developed bilateral subacromial bursitis following her work injury on 12 February 2015 whilst in the employ of IGA Altona. Despite non-operative treatment including non-steroidal anti-inflammatory medications, analgesics, oral steroids and physiotherapy she has persistent shoulder symptoms. As a result I believe that if she continues with her current treatment regime the outlook for Mrs Sheridan’s shoulder function is poor and she is likely to experience persistent pain into the future.
Given the duration and recalcitrant nature of Mrs Sheridan’s shoulder symptoms she would benefit from further investigation and either subacromial local anaesthetic or cortisone injections or arthroscopic shoulder surgery depending on the imaging results. She would also benefit from a consultation with a pain management and/or rehabilitation consultant. Therefore, at this time, the prognosis for Mrs Sheridan’s shoulder problems is guarded and depends upon her response to further treatment.
Dr Weekes, the pain specialist who examined the applicant at the request of her solicitors, saw her on 28 February 2018. Following his examination he concluded that the applicant was suffering from an aggravation of lumbosacral spondylosis and cervical spondylosis. Dr Weekes said that the applicant’s ongoing shoulder pain was:
quite likely secondary to cervical spondylosis, which can give a radiating pattern of pain from the neck to the shoulder region.
Dr Weekes said that he did not think that the bursitis seen on ultrasound was contributing a great deal to the applicant’s right shoulder pain.
Dr Ho, the occupational health consultant who examined the applicant on behalf of the respondent, saw the applicant on 14 July 2015 and 28 March 2017. On each occasion, he examined the applicant’s shoulders and upper limbs and found no abnormality. His ultimate conclusion was that the applicant most likely sustained soft tissue injuries to her arms and back in the incident, and that these injuries had resolved but that there were ‘significant unresolved psychological effects from the incident with reported anxiety attacks’. Following his second examination, Dr Ho said that, from a physical perspective, he did not believe that the applicant had any ongoing injury or condition arising from the incident.
Dr Kostos, the rheumatologist who examined the applicant on behalf of the respondent, saw the applicant on 22 March 2017 and 9 February 2018.
In his first examination, Dr Kostos found the applicant’s shoulders to have a full range of pain free movement. In his report following that examination, Dr Kostos noted the conclusion of the 11 May 2015 bilateral shoulder ultrasound that had reported bilateral subdeltoid bursitis and mild right AC joint degeneration. He then referred to the significance of his physical findings and the findings on ultrasound in the following terms:
I also note that abnormalities were found in both shoulder ultrasounds, but ultrasounds are unreliable and abnormalities are frequently seen in asymptomatic individuals and they are clearly irrelevant.
[The applicant] does not have any ongoing issues in her shoulders as demonstrated by her physical findings.
…
Although I do not believe that she has sustained an injury, it is clear that she has had a very traumatic experience and it would appear that she continues to suffer from psychological problems related to this incident but obviously this would be best assessed appropriately by a psychiatrist.
In his second examination, Dr Kostos found a full range of movement ‘with pain on the left’. Dr Kostos said that there were ‘no abnormalities on the right but on the left, [the applicant] had a decrease in glenohumeral abduction and external rotation’.
Following both examinations, Dr Kostos expressed the opinion that he did not believe that the applicant had any ongoing evidence of an injury related to the incident. He said it was also clear that ‘non-physical factors’ were impinging upon the applicant’s presentation.
In his final report, Dr Kostos returned to the issue of ultrasound findings, saying that they were ‘unreliable investigations’ and ‘virtually useless’ He said that it needed to be understood that ultrasounds of patients in their fifties, who do not have shoulder pain, show abnormalities in about 50 per cent of cases.
The judge’s reasons
Consistently with the way the case was argued at first instance, the judge noted that the applicant’s primary case was one of serious injury to her spine, with alternative claims being made in relation to her shoulders — and in particular the right shoulder. The judge, nevertheless, analysed the medical evidence in some detail in relation to each of the applicant’s claimed injuries.[4]
[4]Reasons [15]–[66].
The judge concluded that, on the evidence, the applicant did not suffer any injury to her left shoulder in the incident.[5] The applicant makes no challenge to that finding in this Court.
[5]Ibid [72].
The judge identified the parties’ competing cases, noting that there were, as he put it, ‘two widely disparate threads to the medical material’.[6] While much of the judge’s discussion related to the applicant’s spine (that being the applicant’s primary case at first instance), the judge identified Dr Ong and Mr Pullen as supportive of the applicant in relation to her right shoulder case, and Drs Ho and Kostos as supportive of the respondent’s case that the applicant was ‘not now suffering from any shoulder injury’.[7]
[6]Ibid [75].
[7]Ibid [75]–[76].
The judge observed that reconciling the competing medical opinions was not easy in circumstances where the doctors had not been called for cross-examination.[8] With respect, we agree. This is a well-recognised difficulty associated with proceedings of the present kind.
[8]Ibid [85].
Ultimately, the judge preferred the opinions of Drs Ho and Kostos in relation to the applicant’s physical condition. The judge said:
Notwithstanding the criticisms by the plaintiff, I find Drs Ho and Kostos are convincing. Each of them has seen the plaintiff on two occasions and as early as 15 July 2015 Dr Ho was of the opinion that the plaintiff’s soft tissue injury had resolved and that she needed psychological counselling. His full qualifications and experience were not in evidence, but the two reports have an internal consistency and coherence that any physical injury had resolved, that must be accorded weight.
Consistent with a physical recovery the plaintiff in the period from the time of Dr Ho’s original assessment, and consistent with the initial reaction of the plaintiff’s GP that she would recover, she had been able to resume nearly full-time employment with the defendant and then later with another employer albeit in a light job. That she has been able to continue in effectively full-time employment, albeit light, is consistent with the opinion of Dr Kostos that she is not presently suffering any physical injury as a result of the incident.[9]
[9]Ibid [96]–[97].
While the judge observed that favourable weight was often given to treating practitioners who may have seen their patient on many occasions over a period of time,[10] he observed in respect of Dr Ong:
While Dr Ong has treated the plaintiff over the period 1 May 2015 to November 2017 his reports are essentially repetitive and discursive. He opined in his first report that the plaintiff would develop a pain syndrome and continues to include that as a consequence of her work injury without any rigorous analysis as to whether the original physical injury has resolved. He repeatedly notes that the plaintiff has significant anxiety and mild depression, yet does not address the extent to which this is relevant to his ‘impression/diagnosis’. He does not appear to address the opinion of the physiotherapist that there had been an improvement in her physical outcomes as assessed by him. The physiotherapist described the right shoulder injury as ‘stabilised and any mild function restriction is related to the work injury and likely to persist in the foreseeable future.’ He does not grapple with the original treatment of the plaintiff at the hospital and by her GP, which was that this incident was minor.[11]
[10]Ibid [94].
[11]Ibid [95].
In dismissing the applicant’s application, the judge said that he was not satisfied that she had discharged her burden that there was ‘a substantial physical or organic basis for her complaints of spinal and shoulder pain’.[12] The judge concluded:
In the face of the emphatic conclusion of Drs Kostos and Ho that the plaintiff’s physical injury had resolved, and the admitted presence on the plaintiff’s own medical evidence of psychological conditions such as chronic pain disorder or syndrome, significant anxiety, and depression, the bald assertion of Dr Alashkevich and Weekes that there are physiological bases for the plaintiff’s pain, do not provide a cogent basis to find that the plaintiff has discharged her obligations to disentangle as required by Stamboulakis.[13]
[12]Ibid [106].
[13]Ibid [107].
The reference to ‘disentangle’ in his Honour’s reasons is a reference to the statutory command in s 325(2)(h) of the Act that requires psychological or psychiatric consequences of a physical injury be taken into account only for the purposes of para (c) of the definition of serious injury ‘and not otherwise’.[14]
[14]Paragraph (c) of the definition of ‘serious injury’ defines serious injury to mean ‘permanent severe mental or permanent severe behavioural disturbance or disorder’. As to the need to disentangle in a particular case, see Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, 660 [43]; Jayatilake v Toyota Motor Corporation Aust Ltd (2008) 20 VR 605, 612 [24]; Meadows [2013] VSCA 201 [18]–[22]; Zhang v Joy Foods Aust Pty Ltd [2016] VSCA 199 [56]–[62].
Parties’ contentions
The applicant contended that the evidence ‘demanded’ a conclusion that she sustained an organic right shoulder injury as a result of the incident. The applicant relied upon four matters in support of this contention:
(a) the reference to right shoulder pain within five days of the incident in the St Luke Medical Clinic notes;
(b) the opinions of Dr Ong, Mr Pullen, Mr Strintzos and Dr Ho, who it was said had each concluded that the applicant injured her right shoulder in the incident;
(c) the respondent having accepted liability for the applicant’s right shoulder injury impairment benefit claim; and
(d) the respondent formerly admitted the occurrence of an organic right shoulder injury in the hearing before the judge.
In her written case in this Court, the applicant placed heavy reliance upon Dr Ong’s opinion, noting that she had been seen by him on over 50 occasions between May 2015 and November 2017. The views of Dr Kostos and, where they disagreed with the applicant’s case, Dr Ho, were said to be extreme and not supported. The applicant submitted that, on the weight of the medical evidence, she continued to suffer from an organic right shoulder injury.
In oral argument, the applicant submitted that the judge was wrong to ‘aggregate’ the opinions of Drs Kostos and Ho. The applicant’s contention was that Drs Kostos and Ho were not of the same opinion. After his first examination, Dr Kostos said that he did not believe that the applicant had sustained an injury to her right shoulder (which opinion was contrary to the evidence and the respondent’s admission before the judge that the applicant suffered a right shoulder injury), whereas Dr Ho accepted that the applicant had suffered a right shoulder injury but said that it had resolved. In the circumstances, it was submitted that the opinions of Drs Kostos and Ho could not stand together as an answer to the applicant’s case and the evidence called on her behalf.
The applicant submitted that the evidence of Dr Kostos should not have been accepted by the judge because his initial opinion was unsupported by any other evidence and contrary to the respondent’s admission that the applicant sustained a right shoulder injury in the incident. This left only the opinion of Dr Ho that was contrary to the applicant’s case.
It was then submitted that Dr Ho’s opinion should not be accepted because Dr Ho’s reports did not explain the basis upon which he expressed the opinion that the applicant’s right shoulder injury had resolved. Specifically, it was submitted that, before one could accept Dr Ho’s opinion, it was necessary for Dr Ho to explain how it was that a physical injury that manifested the same pain and symptoms continuously, from the time of the incident to the time of the application before the judge, had somehow ceased to be a physical injury and become something else (a psychological condition).
Once Dr Ho’s opinion was put to one side (Dr Kostos’s opinion already having been put to one side), the applicant’s contention was that the only conclusion that was open was that she continued, and continues, to suffer from the physical right shoulder injury that she sustained when the door fell on her during the course of the incident. Relevant to this contention, the applicant submitted that the judge erred when he concluded that she had not discharged her burden of disentangling the psychological or psychiatric consequences of the applicant’s physical injury. The applicant contended that, contrary to the reasoning of the judge, there was no disentangling required — her case being, and the evidence showing, that her right shoulder injury was ‘entirely physical’.
Having established the existence of a continuing physical right shoulder injury, the applicant submitted that the consequences of that injury ‘comfortably met’ the statutory threshold. In support of that submission, the applicant asserted that the evidence showed that she had now permanently lost the unrestricted use of her dominant arm; endures chronic pain, despite pursuing pain management therapies, modifying her activities and relying on prescription medication; and wakes during the night from right shoulder pain. The applicant pointed to all of the ways in which the evidence showed that her right shoulder condition interferes with her enjoyment of life. In summarising her argument, the applicant said:
The applicant sustained an organic injury to her right shoulder in the workplace incident. She has had persisting symptoms ever since, with very real consequences for her. There is no suggestion of exaggeration — in her presentation or in these consequences.
The applicant thus submitted that leave to appeal should be granted; the appeal allowed; the orders of the judge set aside; and, rather than remitting the proceeding to the County Court, this Court make an order that would permit the applicant to commence a proceeding at common law.
The respondent submitted that the applicant’s argument in this Court departed ‘very significantly’ from that advanced before the judge. The respondent observed that, before the judge, the applicant emphasised the claimed injuries to her spine. In final address, the applicant’s counsel stated that she did not ‘want to spend any significant time on the shoulder injuries’. A little later in address, the respondent’s counsel said that she ‘frankly … recognise[d] that the stronger case for [the applicant], both medically and in terms of consequences, [was] with respect to her spine’.
The respondent submitted that the application should be dismissed because there was no error in the judge’s findings of fact or ultimate acceptance of the opinions of Drs Ho and Kostos. Moreover, it was submitted, the judge did not err in determining that the applicant had not discharged her obligation to disentangle the consequences of any subsisting physical injury from the consequences of her psychological condition. Additionally, it was submitted that, in any event, the applicant’s right shoulder condition was not a ‘serious injury’.
Analysis
In essence, the applicant cavils with four conclusions made by the judge, namely:
·any physical injury suffered by the applicant to her right shoulder had resolved by the time the application was made;[15]
·the applicant was not suffering any physical injury at the time of the application;[16]
·the applicant did not discharge her burden of establishing that there was a substantial physical or organic basis for her complaint of right shoulder pain;[17] and
·the applicant did not discharge her obligation to disentangle the psychological from the physical.[18]
These four conclusions of the judge can be distilled down to two issues: first, whether the judge was correct to conclude that any physical injury had resolved; and secondly, whether the judge was correct to conclude that the applicant had not undertaken the necessary disentangling of the physical from the psychological. To succeed ultimately in obtaining the relief she seeks, the applicant must establish that the judge erred on these two issues, and then that the consequences of her continuing physical injury (or substantially physically based injury) were ‘at least very considerable’ and ‘permanent’.[19]
[15]Reasons [96].
[16]Ibid [97].
[17]Ibid [106].
[18]Ibid [107].
[19]‘Permanent’ in the sense that the relevant impairment is ‘likely to last for the foreseeable future’: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 639 [33].
The judge’s conclusions that the applicant no longer suffered from a physical right shoulder injury and that she had failed to disentangle the psychological from the physical are interrelated. The central issue relating to both of the applicant’s grounds of appeal is whether the judge was wrong to conclude that he was not satisfied that the applicant was suffering from a right shoulder injury that was substantially physically based at the time of the hearing of her application.
The short answer to the applicant’s complaints is that we are unable to see any error in the judge’s conclusion that he was not satisfied that there was an ongoing, substantially physically based, right shoulder injury.
First, the medical evidence did not support the existence of an ongoing substantial and physically based right shoulder condition. For example, Mr Strintzos described the applicant’s right shoulder condition being of ‘mild severity’ after a multidisciplinary assessment in July 2017, referring to the right shoulder injury as involving ‘mild function restriction’.
Secondly, the reports of Dr Ong, which referred to the likelihood of the development of (and the later development of) a chronic pain syndrome, and the applicant suffering from significant anxiety, and an adjustment disorder, from May 2015 are suggestive of relevant psychological issues giving rise to pain that required disentanglement from the physical consequences of the applicant’s injury.
Thirdly, nothing in the medical evidence tendered by the parties compelled the conclusion that the applicant was suffering from an ongoing substantially physically based right shoulder injury at the time of the hearing. Certainly no medical report was tendered that, in terms, so concluded.
Fourthly, there was no error in the judge approaching the reports of Drs Ho and Kostos in the way he dealt with them. The fact that in his first report Dr Kostos said that he did not believe that the applicant sustained an injury was no bar to accepting that ultimately his evidence was in accord with Dr Ho’s evidence that any physical injury to the applicant’s right shoulder had resolved before the hearing below.
Fifthly, the fact that the applicant gave evidence that her right shoulder pain and disability had continued unabated and unchanged since the incident was no bar to a conclusion that her physical injury had resolved, or a conclusion that her current condition could not be shown to be substantially physically based. Whether the continuation of the same symptoms from an injury that is admitted to have commenced as a physical injury is indicative of the continuance of that physical injury is a matter that needs to be determined by reference to the individual facts of each case in which that issue arises. For present purposes, all that needs to be said is that the medical evidence in this case did not support the conclusion that because the applicant continued to complain of the same symptoms her injury has remained substantially physically based.
Sixthly, there is no substance in the applicant’s submission that Dr Ho’s opinion should not be accepted because he did not explain the basis upon which he concluded that the applicant’s right shoulder injury had resolved. The basis for Dr Ho’s opinion were his findings on physical examination. On each occasion he examined the applicant, Dr Ho found no abnormality in her shoulders; no tenderness in her shoulders; active movements in both shoulders were ‘equally to full range’; and reflexes, sensation, power and tone were normal in both arms. In his second report, he added that there were ‘significant unresolved psychological effects from the incident’. Those findings well justified Dr Ho’s conclusion that the applicant’s right shoulder injury had resolved by the time he came to examine her.
What we have said is sufficient to reject the complaints of error made by the applicant. We should say for the sake of completeness, however, that even if we were persuaded that the judge erred in not finding that the applicant continued to suffer from a physically based right shoulder injury, we would have concluded that the consequences of that injury were not shown to have been ‘at least very considerable’ as required by s 325(2)(c) of the Act. While the applicant’s right shoulder complaints and symptoms as reported by her might fairly be described as ‘significant’ or ‘marked’, the evidence does not persuade us that the impairment (assuming in the applicant’s favour that it is a physical impairment) may be fairly described ‘as being more than significant or marked, and as being at least very considerable’.[20]
[20]See s 325(2)(c) of the Act.
First, the evidence of Mr Strintzos about the applicant’s right shoulder condition, and the applicant’s answers in cross-examination when questioned about whether her right shoulder had recovered and whether her left shoulder was now the main problem, do not suggest to us the continued existence of an injury satisfying the ‘at least very considerable’ test.
Secondly, and more generally, the medical evidence tendered before the judge does not enable us to conclude (either on its own, or in combination with the applicant’s evidence) that the impairment of the plaintiff’s right shoulder can fairly be described as being at least very considerable. In this regard, a difficulty for the applicant is that much of the evidence called and tendered before the judge did not differentiate between the consequences claimed to have been suffered as a result of injuries to the applicant’s back, neck, right shoulder and left shoulder (or shoulders).
While on one view of the facts it may have been possible to conclude that the totality of all of the symptoms and consequences claimed by the applicant to have been suffered in the incident could be described as very considerable, in our view, the evidence does not permit such a conclusion when consideration is limited to the applicant’s right shoulder. Specifically, some of the answers given by the applicant in her evidence before the judge about pain and limitations may or may not have been relevant to the limited case now pursued in this Court concerning the applicant’s right shoulder.
An example of the difficulty in determining what consequences the applicant has suffered as a result of her right shoulder injury is to be found in the applicant’s case concerning difficulties with sleep. In her written case in this Court she submitted that she wakes at night from pain and ‘cannot sleep on either left or right side due to shoulder pain’.[21] The evidence said to support that statement in her written case came from para 11 of the applicant’s second affidavit. Paragraph 11 of the applicant’s second affidavit, however, made no reference to right shoulder pain, and was in the following terms:
I wake up about twice each night from pain and struggle to get comfortable. I cannot sleep on my left side any more as it hurts my left shoulder and the left side of my neck. Sleeping on my right side also aggravates my neck pain.[22] I try to sleep on my back or on my stomach as much as I can.
When asked in re-examination as to the usual reason for waking up at night, the applicant said ‘left pain in my shoulder, in my neck,’ when asked whether there was ‘any pain in any other body part’, the applicant responded ‘sometimes my back but more so my neck and my shoulders’.
[21]Emphasis added.
[22]Emphasis added.
None of this evidence assisted the applicant in showing consequences of her right shoulder injury that were at least very considerable. Accepting that there were no credit issues at trial, we are unable to conclude that the applicant established that the consequences of her right shoulder met the ‘at least very considerable’ test.
Conclusion
The application for leave to appeal must be refused.
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