Mastin-Lundberg v Transport Accident Commission
[2018] VCC 2067
•18 December 2018
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY EXPEDITED LIST
Case No. CI-17-04843
| PEITA MASTIN-LUNDBERG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 27 November 2018 | |
DATE OF JUDGMENT: | 18 December 2018 | |
CASE MAY BE CITED AS: | Mastin-Lundberg v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2067 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment to the right shoulder – pain and suffering only – range case
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr R Morrow | Arnold Dallas McPherson |
| For the Defendant | Mr W R Middleton QC with Mr S Martin | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 23 August 2013 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”. The relevant body function in this application is the right shoulder.
4 The enquiry under sub-paragraph (a) of the definition of “serious injury” focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]See Richards & Anor v Wylie (2000) 1 VR 79
6 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable and more than significant or marked”.[2]
[2]See Humphries & Anor v Poljak [1992] 2 VR 129 at [140]-[141]
7 The plaintiff swore four affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is presently aged thirty-eight, having been born in April 1980. She is right handed. She is separated and has two daughters. They are aged fourteen and twenty-two.
9 Having left school at age fifteen to have her first child, the plaintiff then undertook a Certificate of General Education for Adults.
10 The plaintiff worked at Rivers and Rockman’s. She then worked at Goulburn Valley Pregnancy Support Service for fifteen years in a paid and voluntary capacity. She was then employed by the Department of Human Services in Transport and Access. Thereafter, she worked for a family day-care program as a carer for about a year.
11 The plaintiff was cross-examined about her annual earnings from 2011 to 2017. She had “no idea”[3] if the following figures were correct:
[3]Transcript (“T”) 9
· 2011- $48,868
· 2012 - $2,845
· 2012- 2013 and 2014 - about $8,600
· 2015 -$15,485
· 2016 - $18,022
· 2017 - $17,385
12 The plaintiff later agreed it sounded right, as her Transport Accident Commission (TAC) Claim Form set out, she earned $8,500 in the 2013 financial year.[4]
[4]T40 - Claim Form signed 16 September 2013
13 As at the said date, the plaintiff was working as a cleaner for S & F Cleaning Pty Ltd (“S & F”). She was employed on a casual basis and usually worked between ten and fifteen hours a week and was paid about $16 per hour.
14 Whilst Mr Foyster, a director of S & F, deposed that before the said date, the plaintiff worked more often than not ten hours a week, she was unsure if he was correct. It was a long time ago.[5]
[5]T13
15 S & F cleaned the Target Food Court common area on behalf of the shop owners. The plaintiff cleared the tables, returned dishes to the shops and cleaned the toilets. She confirmed she did the range of duties Mr Foyster detailed in his affidavit, but she was unsure of the weights he described.[6] It depended on how many plates she needed to move on the trolley.[7]
[6]T15
[7]T16
The accident
16 On the said date, the plaintiff was driving along the Hume Freeway near Tallarook. The speed limit was 110 kilometres an hour.[8] A vehicle crossed the freeway, failing to give way, and struck the front driver’s side of her car, causing it to spin off the freeway (“the accident”).
[8]T48
17 Following the accident, the pain in the plaintiff’s right shoulder was severe. She felt it was too painful to breathe and felt disoriented. An ambulance and police attended the accident scene.[9]
[9]Ambulance Victoria Report dated 23 August 2013; Victoria Police Incident Report
18 The plaintiff was taken to the Emergency Department at Goulburn Valley Hospital at Shepparton, where she had some scans. Whilst there, she continued to experience pain on breathing and she had pain in her right shoulder and back. She had difficulty turning her neck.
19 The plaintiff left Emergency in the early hours of the following morning and was told to return later that day to have further scans, which she did. She was told she had fractured ribs on her right side and also fractured her right wrist. Her right shoulder was then turning purple and black.
20 The plaintiff did not agree that it was subsequently discovered there were no fractures. She was told there was a crack on her ribs and on her wrist that “when you viewed straight-on you could see, but when you viewed on the side you could not”. Further, she was given a wrist brace.[10]
[10]T16
21 The plaintiff agreed she consistently told doctors involved in this case that she had fractured her wrist and a rib or two in the accident. Dr Malcolm, her general practitioner, had never claimed she did not have a fracture.[11]
[11]T17
22 The plaintiff thought she had dislocated her shoulder in the accident because that was what the ambulance officers told her, because of the way her shoulder was hanging.[12] In the weeks after the accident, the plaintiff developed widespread bruises and had difficulty using her right arm.
[12]T47
23 The plaintiff saw Dr Malcolm, who gave her a medical certificate and referred her for physiotherapy with Mr Kiel. The plaintiff had physiotherapy about twice a week after the bruising went down and she gradually reduced her sessions.
Progress of the shoulder condition and treatment
24 As of August 2016,[13] the plaintiff had constant pain in her right shoulder which fluctuated. Using her arm made it worse. The pain was a dull ache which would not leave her. Particular movements brought on a sudden, more severe pain, and her shoulder would then throb. That happened every couple of days and was worse in cold weather.[14]
[13]First affidavit
[14]T22
25 The plaintiff was then taking Panadol about once a fortnight and used heat packs. She would have had a flare-up about once a fortnight where she needed to take Panadol during the day. She might have some more severe pain. She always had pain there. She would not take medication unless there was a flare‑up. She saw the physiotherapist at that stage every couple of months, or when she had a flare-up.[15]
[15]T21
26 The plaintiff then had a limited range of shoulder movement and had particular difficulty reaching up. Her shoulder felt weak and at night, she felt pins and needles in her forearm which could keep her awake. The pain could wake her during the night and did so about once a week. Before she went to bed, her eldest daughter rubbed her shoulder. The plaintiff found it difficult to get comfortable in bed and had arranged her pillows in a special way to give her extra support.
27 The plaintiff was having physiotherapy, acupuncture and massage. She had joined a gym and had hydrotherapy, funded by the defendant.
28 As of May 2018,[16] the plaintiff continued to suffer ongoing pain and restrictions. Nearly five years since the accident, her symptoms had remained with the restrictions and pain. Despite treatment, there had not been significant improvement and her limitations continued.
[16]Second affidavit
29 The plaintiff was then having acupuncture on average probably once a fortnight from Dr Malcolm and physiotherapy and massage when she needed it due to increased pain and discomfort. Her daughter had been told by the physiotherapist how she could help with her exercises at home. Nevertheless, the plaintiff had ongoing pain and restriction. She was taking Nurofen and Panadol, and from time to time Panadeine Forte. Despite the treatment, her pain remained chronic, variable in its intensity.
30 Dr Malcolm has just retired. The plaintiff has an appointment with a new doctor, and needs to find a new acupuncturist.[17] The plaintiff last had physiotherapy a few months ago.[18]
[17]T46
[18]T38
31 The plaintiff agreed, in circumstances where she has “too much pain,” she had not sought a specialist referral from Dr Malcolm and she had just seen her physiotherapist.[19] She has had no further shoulder investigations since 2013.[20]
[19]T35
[20]T36
32 The plaintiff continues to take Panadol regularly and takes it more if she exerts herself. She has Endone every four or five weeks for aching and throbbing. She is limited in the amount of painkillers she can take due to the gastric sleeve procedure she has undergone.
33 The plaintiff is currently “taking anything from Panadol to Endone” which is prescribed by Dr Malcolm’s practice. The plaintiff was unsure when Endone was first prescribed. She had been taking it since the accident. She might go weeks without it, perhaps four to six weeks.[21]
[21]T38
34 The plaintiff was unsure when she last obtained a prescription for Endone, but thought she might still have some at home. She could not remember why it was prescribed on 27 January 2013, before the accident, when told the records indicated Endone has been prescribed on three occasions.[22]
[22]T39 – 27 January 2013, 26 August 2013 three days after the accident and after the basketball dislocation – 21 March 2016
35 Presently, the plaintiff tries to take as little Panadol as possible, because it interferes with her stomach. It makes “a reflux sort of thing”.[23]
[23]T48
36 The plaintiff continues to use heat packs regularly and has hot showers every couple of days.[24] Her daughter continues to rub her back and shoulder. The plaintiff does exercises using different strength elastic bands every second night.
[24]T47
Current pain
37 The plaintiff’s pain is in the scapula, in and around the right shoulder, and around the collarbone.[25] She has daily shoulder pain and there is always an ache. Her arm and shoulder become heavy and hard to use.
[25]Third affidavit
38 When the pain is at is its worst, it is severe. The plaintiff often cries with pain. She has even been slumped on the shower floor crying with pain. It is constant pain, worse with activity. The sort of activity which makes it worse varies. It can be overusing it or just putting her hair up.
39 The plaintiff indicated she has pain across the top of her shoulder, a bit more on the right side, over the shoulder itself, and down to the shoulder-blade on the right. She understood the injury to those parts of her shoulder was muscle damage, as her physiotherapist had told her.[26]
[26]T19
40 When told Mr O’Brien had noted that she rated her pain as 1 to 2 out of 10 at rest, the plaintiff asked what “at rest” meant. When it was explained, she said that was incorrect, her shoulder hurts at rest.[27] Mr O’Brien was wrong saying she rated her pain at 5 or 6 on activity. There is a significant difference between her pain at rest and with activity.[28]
[27]T19
[28]T20
41 The plaintiff’s pain varies now. It depends on her activity as to the severity of the pain and the times that it comes.[29] In the witness box, it was maybe 2 or 3 out of 10.[30]
[29]T22
[30]T47
42 The plaintiff was not sure what “wasting” meant, and not sure whether she had any. When told that Mr Grossbard noted a minor loss of shoulder movement, the plaintiff agreed while he had recorded it, she would have had more loss, both then and now.[31]
[31]T41
43 When asked to explain the significant difference between the range of movement findings on various examinations, the plaintiff said it might have been pain on the day.[32]
[32]T21
44 It is now in excess of five years since the accident and the plaintiff’s pain and impairment continue to be chronic and she expects it to be permanent.
Work since the accident
45 Whilst the plaintiff deposed she returned to work on light duties in about November 2013 on reduced hours, she was unsure.[33]
[33]T18
46 Post accident, she was working about six or nine hours a week. She was supposed to be doing light work, but some of her colleagues were unhelpful. The shop owners complained as she was making more trips with trays and dishes to their kitchens, because she was putting smaller loads on the trolley.
47 The plaintiff agreed Dr Malcolm certified her fit to resume normal duties on 25 February 2014 but denied at that time her arm “was virtually better” as Dr Malcolm noted.[34]
[34]T65
48 In early 2014, the plaintiff resigned from S & F, partly because the work was too difficult due to her injury and also because she was being given shifts that she could not do, as it was hard for her to find a babysitter.
49 In her letter of resignation dated 4 April 2014, the plaintiff advised:
“Due to changes in my family circumstances I am unable to commit to regular afternoon shifts. I am only available for one Saturday shift a month and no Sunday shifts. I am also in need of one Friday per month off due to Melbourne hospital visits. Rosters only becoming available Sundays for the following week’s shifts and lack of regular set days-shifts are also difficult for me to organise my children around.
If you in future had an opening in employment during school hours I would appreciate being considered for such position.
I appreciate the opportunities I’ve been given at S & F Cleaning Services and thank you for your support during my accident recovery and more importantly my employment.”
50 One reason the plaintiff resigned was that the work was too hard to complete – she could not do all the tasks required to the best of her ability. The other was childcare. She told her employer when she resigned why she was resigning. She had complained many times that work tasks were too hard to complete.[35]
[35]T13
51 The plaintiff mentioned her shoulder to Dianne, who was her direct supervisor in charge of her day-to-day duties. The plaintiff had never actually met one of the owners of S & F, and she had minimal contact with the other owner.[36]
[36]T14
52 The plaintiff explained when she resigned she was having trouble carrying the amount of dishes. She had to take more frequent trips through the stores, and she was getting in the way. She also could not lift the bins because they were quite large. Many times she told her employer about the reasons she was ceasing work. She told Dianne, and she showed her the work was too hard, that it was too heavy.[37] The plaintiff was not able to carry the filled-up bucket because of her sore shoulder.[38]
[37]T44
[38]T45
53 The plaintiff could not remember sending the resignation letter, but did not doubt its validity. The hospital visits she referred to would have been in relation to her stomach. She agreed she could work during the week while her children were at school, but not on the weekends when they were not.[39]
[39]T13
54 The plaintiff denied the only reason she gave up work was because of her babysitting arrangements.[40] She resigned partially because of her children. Also because she could not complete the job requirements correctly.[41]
[40]T18
[41]T46
55 Dianne attended a meeting with the plaintiff and a person from the TAC.[42] The plaintiff could not remember when the meeting was held, but it was in the food court. The man from the TAC said that someone was coming to have a look at the workplace to see if there was anything that could be done to make her duties easier for her.[43]
[42]T14
[43]T44
56 The TAC person suggested that the plaintiff do other jobs, and was going to get something for the bin to make it easier to be lifted. He also suggested she do the toilets because it was easier work.[44]
[44]T45
57 The plaintiff was recalled during the hearing when further documents were produced by the defendant relating to this worksite assessment. The plaintiff disagreed, as that material set out, that co‑workers provided great assistance. They were complaining about her, and the shops were complaining she was coming in too often.[45]
[45]T61
58 The plaintiff agreed that post-accident, she avoided lifting heavy trays and emptying the bins, but disagreed she was working one day a week until she resigned.[46]
[46]T63
59 The plaintiff did not remember advising she ceased her employment due to a combination of reasons which were not related to the accident injuries as this document described. She never returned to her full pre-injury role after the accident.[47]
[47]T63
60 Following her resignation, the plaintiff was unemployed for a period of time. She then found work as a receptionist at a carpet cleaning company, where she worked two full days a week and was paid $21 per hour. She provided administrative support in that role, which she undertook for about seven weeks.
61 In early 2016, the plaintiff started casual work in a customer service role at Typo, a shop selling stationery. She worked between three and six hours a week and was paid $152 for two three hour shifts. She was then okay because she mainly did lunch covers, and that only involved serving customers.
62 As of May 2018, the plaintiff was working casually in this job, usually five hours a week on Mondays and three hours on Wednesdays. Her employer was sympathetic and accepted that she had lifting restrictions and was unable to reach up to the top shelves with her right arm. The plaintiff did not lift heavy boxes or perform work where there was strain on her arm.
63 As of June 2018, the plaintiff was working seven to ten hours a week at Typo. At times, the job involved variable lifting, but mainly light. She tried to take the weight on her left arm as frequently as possible because of ongoing restrictions with her right. Her employer was aware of her injury and her colleagues helped her from time to time.
64 The plaintiff continues to work at Typo, with varying hours and with the restrictions she previously described. Without an understanding employer, she would be unemployable in this role. She has been working six to nine hours a fortnight but she was very uncertain what days she had worked last week.[48]
[48]T9
Volunteering
65 In August 2016, the plaintiff volunteered with GV Family Care, helping out with play group. She avoided picking up babies or toddlers because of her shoulder. She had also done volunteer childcare for mothers with post-natal depression, and at times needed help in that role.
66 As of May 2018, the plaintiff tried to occupy herself as much as she could. Voluntary work undertaken by her with a youth organisation, included helping out with ticket sales at a production. That activity did not require her to use her shoulder.
Study post accident
67 In February 2016, the plaintiff started a Certificate III in Business Administration/ Medical at TAFE. It was a part-time twelve-month course. At that stage, she had moved away from the idea of working in childcare because of her physical limitations.
68 As of May 2018, the plaintiff was doing a Certificate IV in Community Services at TAFE in Shepparton on Thursdays and Fridays. She then hoped to find suitable employment at the conclusion of the course. If she was successful, in 2019, she intended to start an eighteen-month Diploma in Community Services (“the Diploma”).
69 The plaintiff was hopeful that a qualification would enable her to work in the community services sector. She would still have some restrictions in that type of work. For example, she would struggle in disability services or aspects of the industry where heavy lifting would be required. She would be incapable of performing such work because of her shoulder restrictions.
70 If the plaintiff completes the Diploma in 2020, she will be qualified to work in community services. She will not be able to do disability services because she has to avoid lifting. She anticipates working full time. There will be some activities with community services she will not be able to do because of her shoulder injury.
71 The plaintiff has recently completed the Certificate IV course. This Certificate enabled her to obtain a coordinator’s job with St Vincent de Paul in September in a homeless meals program, which is a bit like a soup kitchen.[49]
[49]T11
72 The plaintiff works a minimum of four hours each Friday morning. She thought she was paid $150 a fortnight at St Vincent’s De Paul for eight hours’ work. She does the administration side. Sometimes she helps out with cooking, like peeling potatoes, but does not do any heavy lifting. Those sort of tasks are done by volunteers.
73 The plaintiff is going to apply for the Diploma which starts in February. It is not presently open for applications. She had hoped to do youth work, and she had needed the Diploma to do that.[50] That course is three days a week at TAFE. She intends to continue working in her current job, and hopes to work full time in the community sector.[51]
[50]T42
[51]T11
Consequences
74 The plaintiff described ongoing problems with housework in her various affidavits.
75 The plaintiff avoids heavy lifting because it aggravates her shoulder pain and she usually splits the load of heavy washing and the shopping and gets help from her daughters. They also help her hang the washing out. The plaintiff has to be careful not to overdo household tasks.
76 The plaintiff has also modified the way she does cleaning, using her left hand for heavier chores such as vacuuming and cleaning the shower.
77 The plaintiff relied more on her daughters, particularly her eldest daughter, because of her injured shoulder. At times, she could not do activities with them like ten pin bowling and she simply watched.
78 The plaintiff purchased a lawnmower that is easier to start. When she did the mowing, she either did not use the catcher or frequently emptied it, as she found it difficult to lift when full. She tended to mow with her left hand to reduce the strain and vibration on her right shoulder. She asked friends to do the Whipper-Snipping, or her former partner did it.
79 The plaintiff confirmed she had done the mowing from time to time, and shares domestic chores, and does every aspect of the domestic situation “to [her] ability”. She agreed she did everything.[52]
[52]T38
80 “To [her] ability” meant she had to modify a lot of things. She predominantly vacuumed left-handed, and if there was washing to be hung up, she had to make frequent trips as was the case with carrying the groceries.[53]
[53]T48
81 The plaintiff has worked hard to adapt her lifestyle to cater for her disability, and her right arm movement is restricted.
82 The plaintiff cannot hold her arm up for a long amount of time, so she puts her head down to put her hair up.[54]
[54]T22
Psychological condition
83 In her 2016 affidavit, the plaintiff deposed that when her pain was bad, her mood was low, and she was frustrated at not being able to do everything she once did.
84 The plaintiff was fearful on the road, and often felt anxious driving. She was more aware of what was happening around her. She preferred to drive, as she was a nervous passenger and found it hard to trust others.
Basketball and netball
85 The plaintiff mentioned her involvement in netball and basketball in her affidavits.
86 In her 2016 affidavit, the plaintiff deposed that that year she played for only 7 minutes in the basketball grand final and aggravated her right shoulder. She was then taken to Goulburn Valley Hospital where he was given an injection to relieve the pain, and then sent home.
87 The plaintiff later had physiotherapy. She took a week off work and wore a sling for a couple of days. Her shoulder settled down after a couple of weeks. Her physiotherapist had told her she could go back to sport, and she thought she would be okay.
88 The plaintiff was then playing netball in a team made up of mothers in a social competition. She was the goalkeeper, and predominantly played left handed. She played about 80 per cent of the matches. She was determined to keep active for her health. She also really liked the social aspect of sport, and it was something just for her. She did worry about making her shoulder worse, and she strapped it to play. Her teammates were aware of her injury, and if it hurt, she could go off the court. She was not able to play as she would like because of her injury. It had been very frustrating for her, but she persisted because she liked playing sport.
89 In her May 2018 affidavit, the plaintiff confirmed she had to stop playing basketball because of her pain. She ceased playing after aggravating her shoulder in the game following which she was taken to hospital. She was then playing in a mid-week ladies’ competition in the lowest grade.
90 The plaintiff played once in a mature-age basketball tournament where she was Player 10 in a team of ten, with five on the court at any one time.
91 In her June 2018 affidavit, the plaintiff deposed she last played netball in June/July 2017. It was a mid-week social netball competition. Her daughter, Drew, played half the game. Together they were one player. Playing netball was giving the plaintiff too many problems and causing increasing right shoulder pain. She had considerable limitations on the netball court. The other team would be made aware of her injury so they would not be rough. Drew taped the plaintiff’s right shoulder with sports tape on the instructions of the physiotherapist.
92 In cross-examination, the plaintiff could not recall when she resumed playing sport after the accident. It was not the year of the accident.[55] She went back to basketball first. She thought she went back in 2015. She played C‑grade ladies, a low-grade like a mothers’ comp. It was competitive basketball. She played on the advice of her physiotherapist, who told her to give it a try.[56]
[55]T22
[56]T23
93 Before the accident, the plaintiff was playing B and C grade. She was unsure how long a season typically lasted,[57] but there was a summer and winter season. She had played her whole life, but could not remember what she had played after the accident.[58]
[57]T23
[58]T24
94 The plaintiff has played only one season of basketball since the accident, and she was injured in that season and had not gone back since. She was not sure of the name of the team she played for. After she hurt her shoulder and went to hospital, there was no more basketball.[59]
[59]T25
95 The plaintiff throws the ball with both hands.[60] She has not gone back and looked for the records of her games as she did not need to.[61] It was possible, if the records indicated, that she played around sixteen basketball games between September 2015 and March 2016. She did not think she played basketball and netball at the same time.[62]
[60]T25
[61]T26
[62]T27
96 It was possible, as Dr Malcolm reported on 26 April 2016, that the plaintiff then played basketball and netball once a week. She was playing netball with one of her girlfriends, but was not sure of the name of the team. It was a low-grade midweek ladies’ comp. She was unsure about how many matches she would play in a season.[63]
[63]T27
97 The plaintiff described using predominantly her left hand to play netball, and she used both hands to catch. As a goalkeeper there was not much catching. She agreed that most time you used both hands when playing.[64]
[64]T28
98 The plaintiff confirmed she played for the seven minutes in the basketball grand final. Initially, when asked whether her team won, she said she was not there, and then said they did win. She could not say the name of her winning grand final team. She again confirmed this March 2016 game was her last.[65]
[65]T28
99 The plaintiff explained she would have had time off after that dislocation, and she would have been strapped. Basketball and netball are quite different sports. She confirmed that after the dislocation, she did not go back to basketball. It was her last game in which she was injured. She did not play after that injury.[66]
[66]T33
100 The plaintiff then said she was registered for one tournament afterwards. She took the court maybe twice. She did play on one weekend, but she was unsure if she played two games. They were not full games. She was playing No 10.[67]
[67]T34
101 The plaintiff could not remember when she went back to playing netball. She started playing netball after she had resumed basketball. She has played netball since the basketball games, but she cannot say when she last played netball. It has been a long time.[68]
[68]T32
102 The plaintiff then confirmed she last played netball in June/July 2017. She had not played netball or basketball in 2018. She was unsure when she stopped, but she stopped netball because it hurt too much after playing.[69]
[69]T35
103 The plaintiff denied she stopped playing because of the pending Lap-Band surgery. She denied she could still have played and could still play today. She cannot, because the pain “is too much”.[70] It hurt during the game, and the after-effects would take a few days to get over the pain and be ready to go again, so it made it hard to complete the next few days.[71]
[70]T35
[71]T48
104 After the accident, the plaintiff played in the lowest grade they have in her age group for over eighteens. She sometimes played left handed, sometimes two handed, or she would just pass, bounce pass.[72]
[72]T47
105 The plaintiff has had a couple of yearly gym memberships since the accident. She now mostly does cardio, involving treadmill, light rowing and bikes, “the stair thing”, and some light weights and stretches. She rows on a machine for about five minutes.[73]
[73]T37
106 The plaintiff was taking pole-dancing classes at the time of the accident. She loved it and had paid for another term just before the accident. She felt empowered, and liked the social side, and it really suited her. She was upset she could not continue. Sometimes she thought about going back to it, but there was no point, because she would not be able to hold herself up on the pole because of her shoulder.
107 In her third affidavit sworn on 4 June 2018, the plaintiff explained that the photograph posted on Facebook of her standing on a bar was taken at her daughter’s 21st last year.[74]
[74]T36
108 The plaintiff accessed the bar with the assistance of the barman and steps. It was a dare. She was sober. She got up on the bar and got down. She got down by sitting on the bar and stepping down. Her shoulder was not involved in this activity.[75]
[75]T36
109 In that affidavit, the plaintiff also mentioned her recent examination with Mr Dooley was a 10‑minute appointment during which he examined her for 1.5 minutes. She did not tell him she had had multiple shoulder dislocations. Prior to the accident, she had had no problems with her right shoulder.
110 When cross examined about this appointment, the plaintiff was not sure who Mr Dooley was.[76]
[76]T31
111 The ambulance officers who took the plaintiff to hospital after the accident told her they thought she had dislocated her shoulder and she was told at the hospital that it looked like that had been the case.
112 Since the accident, the plaintiff had had one dislocation playing basketball, when her shoulder popped out and just popped back.
113 When shown the Goulburn Valley Hospital entry of 20 March 2016 after she had played the grand final, the plaintiff could not explain why that note said that she had frequent dislocations of her right shoulder. She would have told them she had dislocated it before, but not frequently. She thought she dislocated it during the accident. She presumed she told all the doctors that that was the case, and “denied absolutely” that she was making it up.[77]
[77]T30
114 The plaintiff’s pain and discomfort, and restrictions, have continued. It was completely wrong for Mr Dooley to say that she has had multiple dislocations of her right shoulder. She did not know what he was talking about. While he reported she had some difficulties with overhead activities, she thought that was a massive and inaccurate understatement. He had understated the true position.
115 The plaintiff explained she has great difficulty with overhead activity. Her right arm does not go above her head without a lot of effort and pain. The pain is worse afterwards. She has pain if she attempts this movement and is restricted in doing it. T?
Surveillance film
116 There were a number of surveillance reports from “Verifact” indicating that during sixty hours of surveillance conducted in 2018, the plaintiff was shown doing very little.
Treatment
117 The plaintiff attended Goulburn Valley Health Emergency Department at 21.35 on 23 August 2013 and was discharged at 0250. It was noted in the records that the plaintiff had a right shoulder injury and her right wrist was bandaged.
118 The plaintiff returned to Emergency the following day for further investigations.
Dr Helen Malcolm, general practitioner
119 In her letter of September 2013 referring the plaintiff for gentle physiotherapy on her car accident injuries, Dr Malcolm noted that the plaintiff was then taking Endone and Panadeine Forte.
120 Dr Malcolm advised the physiotherapist that the plaintiff had had x‑rays, none of which had shown any fracture, but that day, she had ordered an x‑ray of the right scapula and upper thoracic spine. She noted the plaintiff was still requiring strong analgesia.
121 Dr Malcolm reported in November 2015 that following the accident, the plaintiff was seen on 26 November 2013 by a colleague, and by her four days later. The plaintiff had severe bruising in the seatbelt region, tenderness and redness over the right medial collarbone and tender costochondral joints.[78]
[78]Photographs of the injured shoulder were tendered
122 Dr Malcolm advised that the plaintiff’s main ongoing problem was pain and restriction of movement in the right shoulder for some months. There were no fractures on investigation, and the shoulder was treated with analgesia, initial rest and then physiotherapy. It affected the plaintiff’s ability to work, participate in sport, and her mental health, as a result. She was able to return to work on reduced hours in October 2013 and gradually increase her hours.
123 After the plaintiff started a gym program in February 2014, her range of movement, weight bearing and pain level in the shoulder improved and she was passed fit to return to normal duties on 25 February 2014.
124 In that November 2015 report, Dr Malcolm noted that when last reassessed in regard to the shoulder injury in June 2014, the plaintiff was able to work without limitation, but was unable to participate normally in basketball, being unable to throw the ball properly with normal power, especially above her head.
125 Dr Malcolm updated the plaintiff’s condition in her report of March 2017.
126 Dr Malcolm then advised that since the accident, seeing the plaintiff for other issues, she had made enquiries as to how her shoulder was. The plaintiff was always reporting ongoing symptoms, which she had been managing with limitations to her activity and compensatory movements, as well as physiotherapy, so a full examination had not been required.
127 Dr Malcolm advised that the plaintiff was suffering ongoing symptoms from her right shoulder, and her other accident injuries had resolved.
128 In summary, Dr Malcolm reported that the plaintiff’s shoulder symptoms include pain, limited movement, swelling of her right hand when walking, the need for compensatory actions with her left arm, limitation of the type of work she can do – employment that is suitable, interrupted sleep due to pain (weekly), paraesthesia in her right shoulder deltoid area, and avoiding some actions that aggravate her symptoms.
129 On examination in March 2017, Dr Malcolm reported there was tenderness over the upper scapular muscles on the right and over the right T4 paraspinal muscles. The plaintiff complained of tenderness in the deltoid with deep massage. The range of shoulder movement is set out in the table.[79]
[79]At paragraph [273] of my Judgment
130 Dr Malcolm noted the plaintiff was then continuing with exercise and physiotherapy, largely at her own expense, that assisted her symptoms. She found that if she had to miss gym, her shoulder symptoms were worse and stiffness and pain increased.
131 In her report of November 2017, Dr Malcolm advised she had been treating the plaintiff with acupuncture for her ongoing shoulder symptoms since May that year. The plaintiff had found the treatment beneficial, resulting in a decreased need for physiotherapy. Whilst Dr Malcolm was recently away and the plaintiff did not have acupuncture, she did need to return to physiotherapy because of increased symptoms. The plaintiff’s symptoms and ability to work remained substantially the same.
132 Dr Malcolm last reported in May this year. She then advised that the plaintiff continues to have similar symptoms to her right shoulder and neck area as a result of the accident. She is rarely pain free, including the pain waking her at night. She has a restricted range of shoulder movement, which limits her ability to do some of her activities of daily living, like carrying out washing baskets, and limits the sort of work she is able to take on. For example she cannot lift weights or put things above shoulder height.
133 Dr Malcolm noted the plaintiff had had other health problems over the last eight months which precluded her ability to do physiotherapy and gym, although she had continued to do what she could. Dr Malcolm continued to treat her with acupuncture for pain relief, and she also had muscle massage.
134 Dr Malcolm believed the injury had stabilised, but, given that it is nearly five years since the accident, it was likely to continue to incapacitate the plaintiff in her employment and ADLs and be a source of ongoing pain.
Clinical notes
135 On 25 February 2014, Dr Malcolm noted:
“Gym is wonderful, arm is virtually better – can now lift 12 kilograms instead of 2.5, if gets pain it’s in AC joint or over trapeziua (sic) at back. Full ROM pain free.”
136 It was also noted the plaintiff was to return to normal duties:
“Seeing return-to-work consultant today for the TAC, continue with gym.”
137 On 21 March 2016, Dr Chua noted:
“Hurt her shoulder yesterday when playing basketball.
Overextended and not able to move her shoulder.
Went TO ed had Xray - no sign of dislocation.
Put on sling and discharged.
Limited ROM - adduction/abduction – flexion and rotation better compared to last night. NV intact
Continue sling and ice… Endone 5mg TDS PRN.”
138 On 26 April 2016, Dr Malcolm noted:
“Plays basketball and netball once a week…. Has been referred to a dietician.”
Brenton Kiel, physiotherapist, Goulburn Valley Physiotherapy Centre
139 Mr Kiel has treated the plaintiff at various times since August 2013. He last reported in April 2018, having earlier reported in 2015.
140 Mr Kiel noted the plaintiff first presented on 12 September 2013 complaining of a throbbing ache and intermittent stabbing pain over the right scapula and upper trapezius region that radiated into her right lateral upper arm. She reported the symptoms started as a result of the accident.
141 Mr Kiel thought it likely the plaintiff had developed right shoulder subacromial bursitis as a result of the accident; however, that was not confirmed on any investigations. At the time of the initial assessment, she also reported sustaining fractures to her left ulna, right clavicle, and her lower right rib.
142 As of August 2015, Mr Kiel thought the plaintiff had recovered to the point where she could maintain near normal function. She had returned to basketball, but had ceased working as a cleaner. She had been subject to occasional flare-ups of her symptoms. She had been required to maintain her condition through exercise at home or in the gym. He believed her condition was likely to remain that way indefinitely, providing that she remained adherent with her self-management strategies.
143 Mr Kiel then thought the plaintiff’s condition had stabilised. In his view, she had no significant incapacity, and that was likely to remain the case into the future. During flare-ups, she may not be able to play sport or lift heavy objects.
144 In his most recent report of April this year, Mr Kiel noted that he had seen the plaintiff twelve times since he last reported. She had sought treatment for recurrent right-sided medial scapula thoracic pain. She had been treated with home exercises for cervical spine mobility and upper limb strength, advice regarding gym-based exercise and on load management, cervical and thoracic joint mobilisation, thoracic manipulation, dry needling, massage, and advice regarding self-massage.
145 Mr Kiel thought the plaintiff was likely to have recurrent flare-ups of her thoracic medial scapula pain. These had been happening at least three times a year, and could take several weeks to settle. Flare-ups had at times been caused by increases in her upper limb load. They were associated with pain with overhead shoulder movements or trunk rotation. He advised she should therefore be careful to grade her commencement of a new occupation involving upper limb load. He noted she may not cope with employment that involved overhead tasks or trunk rotation. He thought her injury had stabilised.
Medico-legal evidence
Mr John O’Brien, orthopaedic surgeon
146 The plaintiff was examined by Mr O’Brien in April 2018. She told him of the accident circumstances and then feeling extremely shocked and immediately being aware of severe pain in the vicinity of the right shoulder, which was significantly bruised.
147 The plaintiff advised that she was told in Emergency that x-rays showed a minor fracture of the right wrist, but no fracture in relationship to the shoulder. She returned for further scans the following day, which apparently did not demonstrate any fractures.
148 The plaintiff indicated she continued to experience severe pain associated with the shoulder. Further investigations were organised by her local medical officer and they also did not demonstrate any fractures. She was prescribed further painkillers and referred for physiotherapy, but that ceased because her pain was so severe.
149 The plaintiff subsequently had physiotherapy, with some improvement, but constant pain persisted.
150 The plaintiff reported, in early 2014, she started work on a casual basis as a cleaner in a food court.[80] She did that for about a year; however, she reported she had increasing difficulty coping and she ceased work and went back to school. She was then studying and also working about six hours a week in retail.
[80]The plaintiff was in this role before the accident
151 The plaintiff advised, because of ongoing pain in her right shoulder and shoulder blade, she continued to see a local doctor who treated the pain with acupuncture, which gave her some temporary benefit. Overall, however, the plaintiff reported the severity of pain had not changed significantly in the past two years.
152 On examination, the plaintiff stated she has constant pain, predominantly over the posterior aspect of her right shoulder blade, which extends proximally to the region of the trapezius. At rest, it was 1 to 2 out of 10, on aggravation it could reach 5 to 6 out of 10.
153 The plaintiff also reported her arm felt weak and it was aggravated by cold weather. Movement in the shoulder joint had been restricted since the accident and there was sleep disturbance because of pain.
154 The plaintiff stated that treatment then involved the use of Panadol tablets at least twice a week. She was having fortnightly acupuncture and seeing the physiotherapist once every two to three months, generally associated with a flare up of pain. In between, she did her own exercises. There had been no specialist referral.
155 The plaintiff reported problems washing and doing her hair. She can do domestic tasks, but where possible, now uses her left hand. She cannot do mowing because of the vibration, causing significant aggravation of pain.
156 The plaintiff reported that she had also been unable to return to sport such as netball and basketball, both of which she was playing prior to the accident.[81] She indicated driving a car aggravated her pain.
[81]This is incorrect
157 On examination, the plaintiff demonstrated a virtually unrestricted range of cervical movement, although there was some aggravation of shoulder blade pain. There was, however, very definite restriction, particularly flexion and abduction of the right shoulder, affecting what appeared to be both active and passive movement due to pain.
158 The range of shoulder movement is set out in the table.[82]
[82]At paragraph [273] of my Judgment
159 Mr O’Brien thought the signs do not appear to be accompanied by clinical evidence of specific rotator cuff pathology or, indeed, impingement, nor do they appear to relate to any form of glenohumeral pathology. He also noted in documentation that there would appear to be some variability in the range of shoulder movement, as Mr Grossbard, in his June 2016 report, documented only quite mild restriction of shoulder movement.
160 Mr O’Brien commented that indeed, investigations of this clinical problem are minimal and the current clinical signs certainly do not define specific pathology underlying the pain generation. Thus, he would conclude that the plaintiff now presents with chronic non-specific pain affecting the right shoulder and shoulder blade. There was no evidence of skeletal injury in the investigations following the accident, and the source of the symptoms would apparently relate to the residuum of an extensive soft-tissue injury in the region of the right shoulder girdle.
161 Mr O’Brien thought there would now appear to be no current indication for specific further investigations or any form of invasive treatment, apart from continuing acupuncture. Given the clinical course of the plaintiff’s chronic pain since the injury, he would consider the prognosis to be poor.
162 Mr O’Brien noted the plaintiff does describe, “perhaps”, an ongoing disability associated with limited function of the right dominant shoulder and arm. Physically, this does restrict her overall activities, and he would consider that she would not be capable of undertaking employment which involved significant manual duties; however, he would suggest she is not totally incapacitated and believed she would be physically capable of undertaking suitable employment. Given her current study, he would hope that on the completion of the course, she would be capable of pursuing suitable employment. Overall, he would suggest she is now mildly limited in her general, social, domestic and recreational activities, a situation which will be ongoing.
Associate Professor Love (“Mr Love”), orthopaedic surgeon
163 Mr Love examined the plaintiff in October 2018.
164 At that stage, she was working as little as three hours to as many as thirty hours a week, when she worked part time in a stationery shop and also supervised a meals program for the homeless.
165 Mr Love noted the accident and the plaintiff’s subsequent complaints.
166 On examination, the plaintiff described a generalised ache in the right shoulder and she had great difficulty lifting. She did not feel the shoulder had altered significantly and it is highly variable in terms of symptoms as time has gone by.
167 The plaintiff advised that she currently has a great deal of difficulty using her right arm and her pain radiates principally to the upper thoracic region. She finds heat and massage and a hot shower helps.
168 Mr Love noted the plaintiff’s sixteen-year-old daughter helped with clothes washing and lawn moving.
169 The plaintiff had a gastric sleeve performed thirteen months ago and had lost 65 kilograms.
170 On clinical examination, there was mild tenderness about the right shoulder, with the principal area of tenderness being superior to the scapular region.
171 The range of movement in the right shoulder is set out in the Table.[83]
[83]At paragraph [273] of my judgment
172 Mr Love thought the diagnosis could be considered that of a degree of rotator cuff tendinitis of the right shoulder, which, it could reasonably be accepted, was a consequence of the accident.
173 Mr Love considered the plaintiff’s capacity for employment was restricted, in that she has an inability to lift objects of any significant weight. In view of the symptoms having been present now for more than five years, he thought it improbable that further spontaneous resolution of symptoms was likely in the foreseeable future.
TAC Worksite Assessment Report – 26 February 2014
174 The goal of that return-to-work program was the plaintiff return to her pre-accident hours and duties as a cleaner for S & F. A medical clearance was attached for the return-to-work-program.
175 It was noted that the plaintiff advised she attempted to return to work in late September 2013; however, was unable to continue due to ongoing pain and functional complications. About five weeks ago, it was reported that symptoms had improved and a gym program was engaged, which provided further improvement in movement and function.
176 In January 2014, the plaintiff reported that she returned to work again, completing one day per week, while avoiding lifting heavy trays and emptying the bins. It was noted, conveniently, co-workers provided greater assistance in the workplace and did not allow her to work outside her work limitations.
177 Currently, the plaintiff reported mild pain around her shoulder and neck, with this pain being managed with only the occasional Panadol. She reported being able to lift up to 12.5 kilograms in the gym, with range of motion in her right shoulder now exceeding shoulder height.
178 It was noted the plaintiff consulted with Dr Malcolm on 25 February 2014, who advised that she was pleased with her progress, and issued her with a certificate that allowed her to return to all aspects of her pre-accident role.
179 It was noted that, pre-accident, the plaintiff was working 11.5 hours a week, three shifts of 3.5 hours based on a rotating roster. The return-to-work plan involved 11.5 hours, starting on 30 March 2014, across 3.5 shifts.
180 It was noted the plaintiff continued to work a total of these hours until the week commencing 5 May 2014, at which time she advised that she had ceased her employment due to a combination of reasons which were not related to the injuries sustained in the accident.
181 Further, it was noted the plaintiff had not reported any concerns since returning to her full role until notifying Nabenet of her resignation from S & F as of the week commencing 5 May 2014.
The Defendant’s evidence
Lay evidence
182 Phillip Mr Foyster and his co-director, Paul Sanderson, operated S & F for twenty-eight years.
183 Mr Foyster swore an affidavit on 21 May 2018, to which he exhibited a statement he had made that day to investigators instructed by the defendant. He also exhibited copies of the plaintiff’s wage records, her resignation email dated 6 April 2014, a copy of a timesheet and also a medical certificate.
184 Mr Foyster had known the plaintiff for the period of her permanent part-time employment with S & F when employed as a cleaner. She commenced work in 2011 and her employment was officially terminated due to her resignation, voluntarily, on 25 April 2015, due to family circumstances. She did not work during the last week of her employment due to sickness, and she supplied a medical certificate.
185 S & F had a cleaning contract with the City Central Shopping Centre. Due to the permanent part-time nature of her employment, the plaintiff did not have sick days or hours. She was paid $16 an hour and worked up to ten hours a week.
186 During the course of her normal duties, the plaintiff was required to commence work shifts over a five-day period, Monday to Friday, and primarily during lunch time.
187 Mr Foyster detailed the tasks that the plaintiff undertook with another employee cleaner at the shopping centre, which involved cleaning and work in the food court area. He described the plates, cutlery and cups as light. The plaintiff would push a trolley of about 4 kilograms and move it a few metres. That activity was repetitive, although it varied on the number of people in the food court.
188 As far as Mr Foyster was aware, the plaintiff had no injuries or medical conditions when she started permanent part-time work with S & F, and employees were asked to declare any pre-existing medical ailments when they started employment.
189 Mr Foyster considered the duties performed by the plaintiff to be somewhat repetitive, but very light, in nature. He thought she was moderately reliable while at work.
190 When the plaintiff was conducting light duties and reduced hours, she was again moderately reliable. Mr Foyster considered her an average employee in the time leading up to the accident.
191 Mr Foyster could not remember how he was told of the plaintiff’s accident. She obviously was not fit for work and possibly she informed S & F of the accident. He recalled she was unfit for all duties due to her injuries. She had something wrong with her shoulder, and she supplied some medical certificates which stated she was fit for duties, with the duties not to be strenuous.
192 Mr Foyster noted the plaintiff was fit to resume work duties in November 2013, having three months off to recover from her accident injuries. She returned to work within a light duties plan with reduced hours, there having been an occupational therapy assessment carried out of her duties.
193 The plaintiff then worked six to nine hours a week and was working with another cleaner, and S & F tried to provide as much help to her as possible due to her injuries.
194 The plaintiff did not state she was resigning from her employment due to her injury condition. She stated she was not able to work due to a change in family circumstances. When she resigned, Mr Foyster was aware, from her letter, the plaintiff was still undertaking medical consultations.
195 After the accident, the plaintiff only ever worked light duties and reduced hours for S & F for four months (127.5 hours in total).
196 Mr Foyster did not have a lot to do with the plaintiff prior to her TAC claim and had more to do with her following her return to work, primarily due to the TAC matter and ensuring she was provided with appropriate duties. He had no knowledge of her interest in sports or hobbies.
197 Mr Foyster would not re-employ the plaintiff as she was not reliable prior to the accident or after it.
Medico-legal evidence
Mr Garry Grossbard, orthopaedic surgeon
198 The plaintiff was examined by Mr Grossbard on 15 July 2016. In his report, he noted the accident circumstances and the plaintiff’s subsequent treatment.
199 The plaintiff advised that she had had a gradual improvement with respect to both pain and her range of motion. She had ongoing issues largely with her right shoulder and neck, and felt her wrist had settled down, as had her hips. She had no ongoing issues with her chest and had returned to playing netball. A worksite assessment report had been carried out on 26 February 2014.
200 The plaintiff told Mr Grossbard she tried to return to work after several months with light duties but was not able to cope. She subsequently returned to school and undertook a business and medical administration course. She was then working in retail, one to two shifts each week.
201 The plaintiff’s medication then included Panadol and Nurofen, which she tended to use when playing sport. No further specific treatment was being contemplated.
202 Mr Grossbard noted the plaintiff’s main pain seems to be in the region of her scapula and trapezius muscles, and there is also a degree of pain felt over the clavicular area. The pain appears intermittent and she relates it to activity in the cold weather. There was occasional pain felt further down her back, and occasional headache. There were flare-ups of pain which could occur with twisting, and there was paraesthesia affecting the whole hand, which came on with activity and with walking. The plaintiff occasionally woke at night with paraesthesia in the hand. There were ongoing issues of weakness, but that was variable.
203 The plaintiff reported difficulty turning her head while driving. There was some pain if she sat for long periods and she did have some issues with putting on her bra, but otherwise was independent in activities of daily living.
204 Mr Grossbard noted the plaintiff had returned to netball and basketball since the injury. She shared housework with her children, and her daughter mowed the lawn.
205 On examination, the plaintiff weighed 114 kilograms. There was tenderness to palpate over the trapezius on the right side and in the interscapular area on the right side.
206 Mr Grossbard carried out measurements of the plaintiff’s cervical movement. All reflexes were depressed, but there was normal power and sensation in the upper limbs.
207 There was no wasting of the shoulder girdles. The range of shoulder measurements is set out in the table.[84]
[84]At paragraph [273] of my Judgment
208 The supraspinatus and infraspinatus muscles were functioning normally. There was pain on movement of the shoulder with some mild restriction of external rotation with the arm at the side.
209 Mr Grossbard thought the plaintiff had soft tissue injuries to the cervical spine and he believed most of her symptoms were arising from that area. There was also some minor loss of shoulder motion, particularly of external rotation, with the arm at the side, suggesting there had been development of a mild capsulitis, the effects of which persisted. He therefore felt it reasonable to assess both the cervicothoracic spine and the right shoulder as separate entities and he did so under the AMA Guide.
210 Mr Grossbard thought the plaintiff’s situation had stabilised and was unlikely to change significantly in the foreseeable future. He thought she had had soft tissue injuries which had recovered to a moderate extent. She has been able to return to most of her activities in a limited fashion, but of interest, she has been able to return to basketball and netball. He believed the she was able to undertake work activities and, in fact, was undertaking study, and had endeavoured to undertake a relatively non-physically demanding job.
Mr Michael Dooley, orthopaedic surgeon
211 Mr Dooley examined the plaintiff on 24 April 2018.
212 Mr Dooley noted the accident and subsequent medical treatment. In terms of the present history, the plaintiff said she notices ongoing right shoulder girdle pain. She can have flare ups of her pain and then she has physiotherapy. She does her own exercises with a TheraBand.
213 The plaintiff reported that she also had pain in the region of the right side of her neck and right scapula.
214 The plaintiff said she had been told she has muscle damage and it will not get any better or worse. In the past, she was active with playing basketball and carrying out pole dancing. She decided to change to netball, but that was difficult because she had ongoing right shoulder pain.
215 The plaintiff told Mr Dooley her two adult children helped around the house, did the majority of her household chores and her twenty-one-year-old daughter helped her by giving her massages.
216 The plaintiff was then working three to six hours per weeks in a stationery shop. She advised she had had bariatric surgery in August 2017 and had lost around 57 kilograms.
217 On examination, there was no obvious wasting of the shoulder musculature. The range of movement measurements are set out in the Table.[85] Mr Dooley noted the plaintiff was apprehensive and resisted attempts to carry out the external rotation and abduction test.
[85]At paragraph [273] of my Judgment
218 There was no local tenderness in the cervical spine. Cervical movements were measured. The upper limbs were intact neurologically.
219 Mr Dooley diagnosed a soft tissue injury to the right shoulder girdle. He noted that he based his opinion on a history of previous dislocations of the shoulder before the accident.
220 Mr Dooley found it difficult to explain the constancy and intensity of the plaintiff’s right shoulder girdle pain almost five years after the accident on the basis of a single subluxation or dislocation of the shoulder alone.
221 Accepting the soft tissue injury that the plaintiff may have sustained to her right shoulder in the accident, Mr Dooley thought that the constancy and intensity of her ongoing pain and the described disability, were greater than one would expect to see for her organic condition. He believed she had had a psychological reaction to her situation and that influenced her ongoing symptoms. From an orthopaedic point of view, the plaintiff did not require specific ongoing treatment. He thought, for her overall wellbeing, it was important she continues in her study and ultimately works in stable employment.
222 Overall, Mr Dooley would not expect the plaintiff’s physical injuries to interfere with her ability to work. She was working three to six hours a week in a stationery shop and doing community services studies, following which he thought she should be able to work in that area.
223 Overall, Mr Dooley would expect the plaintiff to be able to carry out a wide range of domestic duties and, at times, she might note some difficulty with a lot of overhead activity.
224 Based on the attached documentation, Mr Dooley noted the plaintiff did return to netball consequent upon the accident. Given her underlying condition of recurrent dislocation of her right shoulder, he thought one would need to be wary of engaging in contact sports and sports that involved a lot of activity at above-head level. He thought the plaintiff’s orthopaedic injuries had stabilised.
225 In terms of prognosis, Mr Dooley noted consequent upon the accident, he would expect the plaintiff to note some intermittent right shoulder girdle pain. He would not expect her orthopaedic condition to deteriorate over and above her underlying condition that had involved recurrent dislocations of her right shoulder.
Investigations
226 A cervical CT scan in 23 August 2013 was reported to show no cervical spine fracture from C1 to C6. There were no fractures identified in x‑rays of the right and left wrist and chest.
227 There was an x‑ray of the plaintiff’s right shoulder and chest the following day. It was reported in the right shoulder, the acromioclavicular and glenohumeral joints appeared normally aligned, and the clavicle was intact.
228 There was an x‑ray of the right scapula on 4 September 203 which showed no bony abnormality. An x‑ray of the thoracic spine reported alignment to be normal. The disc spaces were preserved, and the pedicles appeared normal.
Overview
229 There is no dispute the plaintiff injured her right shoulder in the accident, as was noted in the report from Shepparton Hospital Emergency Department and shown in the photographs of the plaintiff taken soon after the accident.
230 However, as counsel for the defendant submitted, there is an issue as to what is the injury. Although the plaintiff complained of pain and indicated the area of her pain, all she had been told, or anyone had explained to her, was that it was “muscular”.[86]
[86]T72
231 Counsel for the defendant submitted Mr Love’s report was “pretty skinny”, and his diagnosis of a degree of rotator cuff tendinitis was not supported by clinical findings or radiology. Further, the plaintiff’s complaints were nowhere near the rotator cuff.[87]
[87]T74
232 It was submitted Mr Grossbard’s measurement of movement of the supraspinatus and infraspinatus muscles, and his comment that they were functioning normally, would militate against the rotator cuff diagnosis.[88]
[88]T76
233 In response, counsel for the plaintiff submitted the lack of supporting investigations was not a justifiable criticism and that ultrasounds are notoriously unreliable and it would be surprising if an x-ray disclosed tendinitis.[89]
[89]T86
234 Mr Grossbard thought there was some minor loss of shoulder motion, suggesting there had been the development of a mild capsulitis, and he considered the plaintiff had a soft tissue injury to her cervical spine and most of her symptoms were arising from that area. He thought her soft tissue injuries had recovered to a moderate extent.
235 Mr Dooley diagnosed a soft tissue injury to the right shoulder girdle but based that diagnosis on a history of previous dislocations.
236 Having found no evidence of skeletal injury and noting the clinical signs certainly do not define specific pathology underlying the pain generation, Mr O’Brien concluded the plaintiff’s presentation was one of chronic non-specific pain – with source of symptoms apparently relating to the residuum of an extensive soft tissue injury.
237 On the basis of this medical evidence and the very traumatic nature of the high-speed collision,[90] in the absence of any particularly significant clinical or radiological findings, I accept the plaintiff suffered a soft tissue injury to her right shoulder in the accident.
[90]T80
Credit
238 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[91]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[91](2010) 31 VR 1 at paragraph [12]
239 Counsel for the defendant submitted the plaintiff’s evidence is totally unsatisfactory, in particular her answer that she had “no idea” about the level of her earnings in recent years.[92]
[92]T69
240 Further, it was submitted the plaintiff’s evidence lacks any substance and is not supported by the medical practitioners, particularly the specialists in this case.[93]
[93]T69
241 One such example cited was the plaintiff’s apparent ignorance of what Mr O’Brien’s pain “ratings” meant, but then, when asked by her counsel, she was able to say her pain was 2 to 3 out of 10 at rest.[94]
[94]T70
242 Further, it was incorrect that the plaintiff had been unable to return to sports such as netball and basketball since the accident as she told Mr O’Brien.[95]
[95]T73
243 It was submitted it was “amazing” that the plaintiff, with her numerous attendances on medical practitioners, would not have been informed there were no fractures of her ribs or wrist in the accident.[96]
[96]T73
244 In response, counsel for the plaintiff relied on the defendant’s failure to show any film taken following 60.5 hours surveillance over ten days earlier this year. Further, the surveillance logs made no reference to the plaintiff undertaking any activity inconsistent with her complaints of pain and restriction.[97]
[97]T79
245 Counsel for the plaintiff submitted the plaintiff made plenty of concessions in her evidence that were not to her benefit such as her career plans following study. It was submitted whether she was aware or not of her past earnings was not relevant. She is not an experienced witness and the witness box is not an “easy place to be”.[98]
[98]T80
246 Counsel invited the Court to find that the plaintiff is an impressive human being who has done her very best to recover from her injuries and rehabilitate herself back into the workforce and into the performance of everyday activities of daily living.[99]
[99]T87
247 Having indicated I had difficulty accepting the plaintiff could not recall the name of the team for which she played in the 2016-winning grand final or when the seasons ran,[100] counsel for the plaintiff submitted the plaintiff has problems with memory with a range of things. These were a “matter of inaccurate recall, rather than reluctance to answer”.[101]
[100]T26
[101]T81
248 As I indicated during the hearing, I have some concerns about the vagueness of the plaintiff‘s evidence, particularly in relation to her involvement in netball and basketball pre and post accident.[102] Further, some of the histories given by her to examiners are clearly inaccurate – such as not playing those sports after the accident and starting work with S & F after the accident – as she told Mr O’Brien.
[102]T82
249 In general terms, I have difficulty accepting the plaintiff’s description of her symptoms and restrictions given her ability to engage in these sports since the accident, both sports which involve significant use of her injured right dominant arm. In my view, her evidence in this regard was an exaggeration, and her claimed restrictions cannot be explained on medical grounds.
Pain
250 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[103]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[103](ibid) at paragraph [11]
251 The plaintiff’s description of her level of pain in her affidavits and viva voce evidence is somewhat more dramatic than she has reported to various doctors.
252 The plaintiff complains of activity-related, daily pain in the scapula, in and around the shoulder, and around the collarbone. There is always an ache. She experiences flare-ups. Her arm and shoulder become heavy and hard to use. She described often crying in pain, with the level thereof, at times, at its worst severe.
253 With complaints of this nature one would have expected ongoing attendances on treaters, specialist referral and prescription of significant painkilling medication on an ongoing basis.
254 The plaintiff’s complaints of pain immediately post accident were quite significant. In the first week of September, she described severe pain in the right scapula.[104] She required strong analgesics at that time and was being prescribed Endone and Panadeine Forte.[105]
[104]T82, 4 September Clinical note to right scapula x-ray
[105]T82, Referral letter from Dr Malcolm to Mr Marx
255 However, on 25 February 2014, following involvement in a gym program, Dr Malcolm passed the plaintiff fit to return to normal duties. On examination that day, Dr Malcolm noted the plaintiff’s arm was virtually better - a description disputed by the plaintiff.[106]
[106]T65
256 Whilst she did not see the plaintiff specifically for her shoulder between June 2014 and starting acupuncture in May 2017, Dr Malcolm recently reported that the plaintiff is rarely pain free, including the pain waking her at night. She has a restricted range of shoulder movement.
257 Dr Malcolm did not explain why there was a need for acupuncture nearly four years after the accident, save for such treatment decreasing the need for physiotherapy treatment.
258 Physiotherapist, Brenton Kiel, also noted an early improvement in the plaintiff’s shoulder condition following treatment. When he last carried out upper extremity testing in mid 2014, he thought the plaintiff had recovered to the point where she could maintain near normal function, and concluded it was likely she would have no significant incapacity in the future.[107]
[107]Report of 26 August 2015
259 It is unclear why Mr Kiel resumed treating the plaintiff after this time, seeing her on twelve subsequent occasions, although he noted he provided treatment for her right-sided recurrent medial/scapula recurrent pain.
260 The plaintiff’s complaints of pain to medico-legal examiners are to lower end of the range.
261 Whilst the plaintiff stated she had constant pain, she described it at a relatively minor level to Mr O’Brien in April 2018, although she denied she rated her pain as he described.
262 Mr Grossbard, in 2016, recorded complaints of intermittent pain at times with ongoing issues largely with her right shoulder and neck.
263 Mr Dooley noted the plaintiff reported that she had pain in the region of the right side of her neck and right scapula.
264 The plaintiff told Mr Love of a generalised ache in the right shoulder – highly variable symptoms and she had great difficulty lifting.
Treatment
265 The plaintiff has continued under the care of her general practitioner, Dr Malcom, who treated her initially, and in more recent times, in relation to her accident injury.
266 Dr Malcolm has not seen the need to refer the plaintiff to any specialist.
267 Other treatment has consisted of physiotherapy at various times and more recently, acupuncture. The plaintiff uses heat packs and has massage from her daughter.
268 The plaintiff’s medication intake for some time has been essentially low-grade non-prescriptive medication, mainly Panadol and Nurofen.[108]
[108]T72; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12
269 It appears that for a short time after the accident, Endone was prescribed. It was prescribed again in March 2016 following the basketball dislocation. That medication had also been prescribed earlier in the year of the accident but it is unclear why it was prescribed at that time.
Restrictions
270 The plaintiff had described problems with restriction of movement and difficulty with overhead activities. She made similar complaints to medical examiners since the accident.
271 The following is summary of the plaintiff’s level of shoulder movement on various examinations.
Summary of Shoulder Measurements Practitioner Flexion Extension Adduction Abduction Internal rotation External rotation Dr Helen Malcolm 14 March 2017
150o
45o
-
165o
*Full
*Full
Mr John O’Brien
24 April 2018
100o 30o 20o 80o 70o 70o Associate Professor Bruce Love
24 October 2018
90o 20o 20o 80o 90o 80o Mr Garry Grossbard 20 July 2016
150o
30o
30o
150o
60o
60o
Mr Michael Dooley 10 May 2018
Active 90o Passive 130o
Active 25o Passive 130o
25o
90o
-
-
* some discomfort at extremes of range.
272 As demonstrated in this summary, the findings are variable.
273 Mr O’Brien, having found very definite restriction, particularly with flexion and abduction,[109] noted that there would appear to be some variability in the range of shoulder movement, as Mr Grossbard, in his June 2016 report, documented only quite mild restriction of shoulder movement.
[109]T86
274 Mr Grossbard noted there was some minor loss of shoulder motion, particularly of external rotation, with the arm at the side
Medical views as to restrictions
275 In 2016, Mr Grossbard noted the plaintiff has been able to return to most of her activities in a limited fashion, but of interest, she has been able to return to basketball and netball. He thought the soft tissue injuries had recovered to a modest extent.[110]
[110]T77
276 In April 2018, Mr O’Brien thought the plaintiff was mildly limited in her general, social, domestic and recreational activities and that she does describe, “perhaps” an ongoing disability associated with limited right shoulder function.
277 The following month, noting it was nearly five years from the accident, Dr Malcolm thought it was likely that the plaintiff’s pain would continue to incapacitate her in employment and activities of daily living.[111] She did not elaborate on this opinion.
[111]T84
278 Following examination in May 2018, Mr Dooley expected the plaintiff to be able to carry out a wide range of domestic duties; however, at times, she might note some difficulty with a lot of overhead activity.
279 In October this year, Mr Love simply noted the plaintiff’s incapacity for employment is restricted due to lifting restrictions.
280 Whilst there is medical support for the plaintiff having ongoing problems with some right shoulder movements and heavy lifting, it is difficult to accept these problems are significant given her ability to return to playing basketball and netball after the accident.
281 It is hard to believe, if the plaintiff’s right shoulder caused her the problems she has described, she would contemplate playing these sports, let alone engage in them for some time. Both games involve significant upper arm use, basketball in particular, with the use of the right dominant hand. Both involve overhead movement of the arms. In those circumstances, I do not accept her explanation that she largely played left handed. With netball, as goal keeper, she would have had to extend her arms to defend.
282 There was no clear evidence of the level at which the plaintiff played basketball/netball before the accident.[112] It seems however, she has played at a relatively low level both before and after the accident.
[112]T70
283 It is uncertain from the plaintiff’s evidence when she resumed playing either sport after the accident. It could be as early as 2014, as Dr Malcolm’s report implies,[113] or in 2015, as seems to be the plaintiff’s evidence. In any event, the records indicate she played sixteen games leading up to the grand final in March 2016 when she dislocated her right shoulder.
[113]November 2015 report
284 The extent to which the plaintiff played thereafter is also unclear, with her repeatedly saying the basketball game when she was injured was her last but she seemed to play in a weekend tournament on a later date.
285 The plaintiff continued playing netball after ceasing basketball. She was also unclear as to when she last played netball but deposed it was in the middle of last year, before the Lap-Band surgery.
286 Whilst the plaintiff said she had not played the two sports at the same time, Dr Malcolm’s notes suggest this was an ongoing situation as at March 2016.
287 As noted earlier in my Judgment, generally, the plaintiff’s evidence about her basketball/ netball involvement was very unsatisfactory – not knowing the name of either team for which she played, her hesitation in answering whether her team won the basketball grand final and her ignorance of the months over which the seasons ran, having played both sports for some time.
Work
288 Counsel for the plaintiff submitted that as a result of the plaintiff’s shoulder injury, there are restrictions on her capacity to perform unrestricted employment, a view supported by both Mr O’Brien and Mr Love.
289 Mr O’Brien thought the plaintiff would not be capable of undertaking employment which involved significant manual duties; however, he would suggest she is not totally incapacitated and believed she would be physically capable of undertaking suitable employment.
290 Whilst the plaintiff may have difficulty with heavy physical work, since the accident, after leaving S & F, she has not sought any work of this nature. Her career path, following her study, has been, and will be for the future, in community service.
291 In any event, Dr Malcolm certified the plaintiff fit to return to normal cleaning duties at S & F in February 2014.
292 Whilst the plaintiff said she later left this job because of difficulty doing her duties and also childcare issues, in her letter of resignation there was no mention of any problems associated with her shoulder injury in this decision, nor was it noted in the worksite assessment report.
293 After leaving S & F, the plaintiff then worked briefly as a receptionist. Since early 2016, she has been able to continue to work part time at Typo whilst studying.
294 Having completed the Certificate IV, the plaintiff intends to do the Diploma. She has obtained the administrative job at St Vincent de Paul and hopes to continue work of that nature on a full-time basis in the future.
295 The plaintiff’s situation is not one of a manual worker with no training or qualifications, being cut off from limited sources of work by a significant injury.
296 Given the career path she has chosen, I would not expect the plaintiff’s physical injuries to interfere with her ability to work to any significant extent.
Other activities
297 Similarly, whist I accept the plaintiff may have problems with heavier housework and gardening activities, she is still able to do a wide range of tasks and has the assistance of her daughters with the heavier tasks.
298 Whilst the plaintiff has complained of problems sleeping due to shoulder pain, she has not sought medication in this regard from Dr Malcolm.
Other health issues
299 Whilst not providing any details, in her most recent report, Dr Malcolm noted that over the last eight months, the plaintiff has had other health problems that have precluded her ability to do physiotherapy and gym work.
300 Although Mr O’Brien thought the plaintiff’s prognosis was poor given her chronic pain since injury, her shoulder appears stable and there is no suggestion of arthritis or any need for further treatment in the future.
301 I accept that in the future, the plaintiff will suffer intermittent shoulder pain, some discomfort and restrictions at times, otherwise will still be able to engage in a wide range of activities.
302 As Callaway JA stated in Transport Accident Commission & O’Dea v Dennis:[114]
“Many impairments are considerable in the sense that they are important or substantial, without being very considerable.”
[114][1998] 1 VR 702
303 Taking into account all of the evidence, I am not satisfied the consequences of any shoulder impairment are “serious” as at the date of hearing.
304 Accordingly, the application is dismissed.
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