Matuauto v Principal Healthcare Finance No. 3 Pty Ltd
[2013] VCC 893
•18 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-01926
| TELESIA MATUAUTO | Plaintiff |
| v | |
| PRINCIPAL HEALTHCARE FINANCE NO. 3 PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24-26 July 2013 | |
DATE OF JUDGMENT: | 18 October 2013 | |
CASE MAY BE CITED AS: | Matuauto v Principal Healthcare Finance No. 3 Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 893 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – left shoulder injury – pain and suffering.
Legislation Cited: Accident Compensation Act 1985.
Cases Cited:Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jones v Dunkel (1959) 101 CLR 298; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Phillip Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100.
Judgment: Leave to the plaintiff to bring common law proceedings for pain and suffering damages only in respect to left shoulder injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr D Oldfield | Hall & Wilcox |
HIS HONOUR:
Nature of case
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (the “Act”) for injuries suffered by the plaintiff in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages only in relation to pain and suffering. Initially the application was broader but the scope of the application has narrowed.
3 The plaintiff makes the application pursuant to sub-clause (a) of the definition of “serious injury” found in s134AB(37) of the Act where a “serious injury” is defined relevantly as:
“(a) permanent serious impairment or loss of a body function”
4 The plaintiff relies upon two body functions in the application: the left shoulder and the lower back.
5 Both injuries relied upon occurred after 20 October 1999.
Legal principles
6 The plaintiff’s impairment must be permanent in respect of each injury in the sense that the injury is likely to persist into the foreseeable future.[1]
[1]Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622 at [18], [19] and [33]
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[2]
[2]ss134AB(38)(b) and (c)
8 To succeed in the application, the plaintiff must establish that each of the injuries relied upon arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 6 August 2007.[3]
[3]s134AB(1)
9 In determining the application the court must not take into account:
(a) the psychological or psychiatric consequences of the physical injury because the claim relates to sub-paragraph (a) of the definition of “serious injury”;[4]
(b) the physical consequences of a mental or behavioural disturbance or disorder because the claim relates to sub-paragraph (a) of the definition of “serious injury”.[5]
[4]s134AB(38)(h)
[5]s134AB(38)(i)
10 The court must make its assessment of the plaintiff’s application in respect of the alleged “serious injury” at the time the application is heard.[6]
[6]s134AB(38)(j)
11 In these types of applications, the Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolack & Ors[7] that the correct template is firstly, to determine whether the plaintiff suffered compensable injury on or after 20 October 1999; secondly, to determine the nature of that injury and its consequences; and finally, to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[7](2005) 14 VR 622
12 More recently, the Court of Appeal in Meadows v Lichmore Pty Ltd[8] enunciated a two-step approach to the determination of a serious injury application where the plaintiff relies upon pain and suffering consequences which are alleged to be attributable to both physical and psychological causes. In that case, Maxwell ACJ, with whom Robson AJA and Dixon AJA agreed, held:
[8][2013] VSCA 201
“21… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
22If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
…
24In my opinion, to approach the serious injury question in this way involves no error of law. As has been explained, this has developed as a rule of practice or convenience. It does not involve a new or different principle standing in place of, or in addition to, the statutory requirement. Rather … this approach provides a shortcut, to the benefit of an applicant, where it can be seen on the materials that the consequences are substantially, mainly or predominantly referable to an organic cause.”
13 The Court of Appeal subsequently in Phillip Fokas v Staff Australia Pty Ltd[9] referred to the statements of Maxwell ACJ with approval.
[9][2013] VSCA 230
The hearing
14 At court, the plaintiff relied upon two affidavits and was cross-examined. In addition, both parties relied upon parts of various medical reports and other material that was tendered in evidence. Although the reports were numerous and some were quite extensive, the parties referred only to very limited excerpts during trial. I have read and considered all the material tendered but in particular those parts of the tendered documents explicitly relied upon.
15 In addition, Mr Hooper gave oral evidence explaining the general nature of the injuries alleged and the terminology used in the medical reports. He was not cross-examined in the way a witness usually is.
The plaintiff’s background
16 The plaintiff was born on 19 July 1960 and is a 53 year old lady. She is left hand dominant. She lived in Samoa until 1976, when her family moved to Auckland. She completed schooling to Year 8 in Samoa and undertook a further year of school in New Zealand before marrying at age 18. She did not finish secondary school and has no tertiary qualifications. In 2008 her English skills were limited – for example, she could not read a newspaper in its entirety and she struggled with grammar and written English. In recent years she has improved her literary skills, undertaking a study of English as a second language, and has also undertaken some basic training with computers. The plaintiff has six children aged between 19 and 32. The plaintiff moved to Australia with her family in 1984. The plaintiff’s husband died in a sporting accident in 1993.
17 During her lifetime, the plaintiff has worked in various jobs, including in the kitchen at Greenlane Hospital in Auckland, packing work at the Spicer factory, quality control work at a pantyhose factory and waitressing at a café on the Hume Highway. The plaintiff’s background is in physical, labouring type jobs, not managerial, office or clerking work.
18 Having completed a personal care attendant’s course in about 1997, the plaintiff began working as a personal care attendant at the Preston District Nursing Home. She worked 78 hours per fortnight. She greatly enjoyed her work there as an attendant. The plaintiff worked there for about 9 years until the nursing home closed. The work was quite demanding physically which, at first, she found difficult, but she grew accustomed to it.
19 The plaintiff began employment with the defendant as a personal care attendant at Meadow Glen Nursing Centre (“Meadow Glen”) in Epping in August 2007. She worked there 32.5 hours per week. The residents at this nursing centre needed considerably more looking after than the patients at the Preston District Nursing Home. In particular, there were about 20-30 patients designated as high care. They were difficult because they could not even get out of bed. The nursing staff had to lift them to move them for feeding, showering, toileting and dressing. In addition, there were approximately 20-30 patients designated low care and about 40 patients who had some kind of mental disturbance.
20 From the early 1990s, the plaintiff suffered back problems from time-to-time. She also had asthma, neck pain, headaches, migraine, sore knees and a sore elbow. She took painkillers as required and also attended her general practitioner on occasion.
The plaintiff’s injuries
21 The plaintiff stated that in about early 2008 she had a sore left arm and shoulder but thought nothing of it. In cross-examination the plaintiff said she could not remember if she had pre-existing pain in her left shoulder before May 2008. However, the defendant tendered the clinical records of Hillcrest Health Centre, which disclosed that the plaintiff had attended on 4 January 2008 with shoulder soreness and headache. Examination revealed a good range of motion but pain on abduction. The doctor prescribed Mobilis, a pain relief medication.
22 Despite this visit to the doctor, there was no proper basis for finding that there was any major problem with the plaintiff’s shoulder. She did not miss work due to any shoulder injury but continued doing her job. Had she missed work at Meadow Glen, I would have expected the defendant, as her employer, to have adduced evidence to that effect. In the circumstances, I do not attribute any significance to the treatment received on 4 January 2008.
23 On about 8 May 2008 the plaintiff saw a resident slipping out of his wheelchair. He was a large, heavily built man who was a high care resident. Although the plaintiff called out for assistance, the only person available was an inexperienced student who was of little help. In ensuring that the resident remained in his wheelchair, the plaintiff considered that she bore most of the weight and, whilst manoeuvring the resident, felt a “click” in her left shoulder. Shortly after, she went to lunch. After lunch, she was feeding a resident in front of his family when her left arm began to feel painful and strange. She was unable to lift it properly to feed the patient. Being left hand dominant, she struggled to properly feed the resident with her right hand. At the time, she reported the pain in her left shoulder, down her left arm and in her neck to one of the supervising sisters at work and advised her that she needed to go home.
24 On the way home, the plaintiff visited her general practitioner, Dr Habib. He gave her some tablets for the pain and a medical certificate for about 10 days.
25 Before the medical certificate expired, the plaintiff contacted Meadow Glen to advise that her shoulder was still sore and she asked for two more days off. She was told that she was required to come in for work because she could not be replaced. Although in pain, she resumed her former duties. She tried to be careful in order not to worsen her left shoulder.
26 On about 27 May, she was helping a difficult patient to shower and dress. When the plaintiff bent down to tie the patient’s shoes, her back suddenly became very painful. The plaintiff reported the back pain to the supervising sister and then went home. Due to her back soreness, she got her sister to collect her from work.
27 Accordingly, by 27 May 2008, the plaintiff said that she was suffering from two separate injuries: first, a painful left shoulder; and second, pain in her lower back.
28 After the incident on 27 May, the plaintiff was off work until around the middle of July 2008. At that point, the plaintiff returned to work at Meadow Glen but with different and more limited duties, and reduced hours. Over a period of a few weeks, her hours increased from about 9 hours per week to 15 hours per week in August 2008. However, as a result of the attitude of some of her fellow employees and the treatment she suffered at their hands, she became very upset by their conduct which, in turn, worsened the pain she was experiencing in her left shoulder and back. She ceased working at Meadow Glen on 8 August 2008 and did not return.
Medical opinions
29 The plaintiff saw a number of doctors and other health professionals in relation to issues arising from the events of May 2008. Those individuals have produced more than 35 reports regarding the plaintiff.
(a) Dr Kirit Parikh
30 The plaintiff first saw Dr Kirit Parikh on about 30 May 2008. He was her initial general practitioner when the plaintiff came to Australia. She later attended Dr Habib as her general practitioner during the period from about 1994 to 2008. In his initial report, Dr Parikh noted that the plaintiff complained of pain and restricted movement in her left shoulder. This created difficulty in her personal hygiene, dressing and undressing, combing her hair and other similar activities. The plaintiff said she was worse at night and could not sleep well. In addition, she had pain and stiffness in her lower back and pain radiating to lower extremities from time-to-time. She found it difficult to manoeuvre heavy weights, to walk long distances and to undertake repeated bending. Dr Parikh conducted an examination of both the left shoulder and cervical and lumbosacral spine. He also examined x-rays of the lumbar spine, an ultrasound of the left shoulder and a CT scan of the lumbosacral spine. These x-rays and scans were taken in late May or early June 2008.
31 Dr Parikh concluded that:
(a) in the lumbar spine area, disc heights were normal, there were no changes of degenerative or inflammatory spinal disease, there was no spondylosis or listhesis and the sacroiliac joints were normal;[10]
[10]Plaintiff’s Court Book (“PCB”) 36
(b) in relation to the left shoulder, there was calcific left supraspinatus tendinosis with an outer under surface partial tear. The other rotator cuff tendons were intact and there was no obvious bursal fluid or impingement;[11]
(c) while there was slight bulging of the discs L5 and S1 in the lumbosacral spine area, there was no evidence of disc protrusion or spinal stenosis.[12]
[11]PCB 35
[12]PCB 37
32 Dr Parikh diagnosed:
(a) left shoulder rotator cuff syndrome;
(b) lumbosacral strain with disc pathology and nerve impingement syndrome;
(c) anxiety/depression.
33 He said that the plaintiff’s employment was a major significant contributing factor to the diagnosed injuries.
34 Dr Parikh’s report of 7 May 2009[13] referred to the earlier diagnosis and said that the plaintiff’s present painful physical condition prevented her from performing her pre-injury duties. Her physical condition was persistently painful. Since the last report, her physical condition had deteriorated. Dr Parikh said he thought the plaintiff was physically unfit for her pre-injury duties and unsuitable for non-physical labour work. She was uneducated, had poor communication skills and would be unable to perform a skilful job regarding clerical duties.
[13]PCB 43-45
35 Dr Parikh’s report dated 25 February 2010[14] stated that the plaintiff’s physical and psychological condition remained the same. His report dated 23 August 2010[15] referred to the plaintiff seeing Dr White and Mr Zannoni. He said the plaintiff continued to see him for follow-up management in respect of her injuries.
[14]PCB 46-47
[15]PCB 48-49
36 Dr Parikh’s report dated 14 April 2011[16] was cursory. In the report dated 29 April 2013[17] he noted that the plaintiff continued to suffer from the two physical injuries referred to. He said that she could not be helped other than by treatment with analgesics, exercise, modified activities and supportive treatment. He considered that her painful physical condition would resolve to some extent with time. He said that her employment, in his opinion, was a major significant contributing factor for the diagnosed injuries referred to.
[16]PCB 50-51
[17]PCB 52-54
37 The April 2013 report from Dr Parikh related to a referral to a consultant physician, Dr Seema Parikh, regarding concerns about anxiety and forgetfulness. Some tests, including a CT brain scan, were undertaken.
(b) Dr Gregory White
38 Dr White, a psychiatrist, saw the plaintiff in January 2009. He noted that she suffered from shoulder and back pain for which she took Tramal daily, Orudis daily and Panadeine.[18] He recorded that the plaintiff was more withdrawn than previously and that she no longer played volleyball or undertook swimming or dancing activities.[19] He said that her chronic pain was exacerbated by the distress associated with her perceived rejection at work and her emotions and pain were also influenced by the death of her grandchild.[20] His diagnosis regarding the plaintiff was that she:
[18]PCB 57
[19]PCB 58
[20]PCB 58
(a) had an adjustment disorder with mixed anxiety and depressed mood (DSM-IV 309.28);[21]
(b) had a pain disorder associated with both psychological factors and a general medical condition (DSM-IV 307.89).[22]
[21]PCB 59
[22]PCB 59
39 Dr White’s report of 12 October 2009[23] spelt out some additional details of the plaintiff’s symptoms and work history. Apart from the medication previously referred to, he noted that she was also taking a sleeping tablet three or four times a week. He repeated his views about the exacerbation of the pain due to the perceived rejection at work and her grandchild’s death. The diagnosis remained the same.
[23]PCB 60-65
40 Dr White’s report stated that during 2009, after being treated with a daily anti-depressant, she was feeling improved. This improvement was due, in part, to her seeing the social worker/psychotherapist, Alex Zannoni.
41 By September 2009, Dr White considered that the plaintiff no longer needed to see him for treatment or monitoring. At the time of the report, he said that there was no current psychiatric diagnosis as her previous conditions had resolved. She appeared to be now suffering from a pain disorder associated with a general medical condition as opposed to a mental or psychiatric disorder. Dr White thought the psychiatric prognosis was good. In his report dated 26 April 2013,[24] Dr White noted he last saw the plaintiff in January 2010. She remained psychiatrically well and was discharged as planned.
[24]PCB 66
(c) Mr Alex Zannoni
42 The plaintiff had 13 sessions with a counsellor, Mr Zannoni, between January and June 2009. Mr Zannoni’s reports revealed a gradual improvement in the plaintiff’s outlook. She exhibited a keenness to return to employment. It seems it was, at least in part, due to the sessions with Mr Zannoni that the plaintiff commenced classes for English as a second language, commenced computer classes and joined a walking group. The plaintiff’s final session with Mr Zannoni took place in March 2010.
(d) Mr Paul McCann
43 Mr Paul McCann was the physiotherapist who treated the plaintiff. He produced several brief handwritten reports which were almost wholly ignored at the hearing. The plaintiff gave evidence that her pain improved for a short period after physiotherapy and massaging.
(e) Dr Robyn Horsley
44 Dr Robyn Horsley is an occupational physician. She saw the plaintiff on several occasions. In her 29 August 2009 report,[25] Dr Horsley noted the plaintiff’s ongoing shoulder discomfort in the left shoulder but said that she was pain-free for periods after physiotherapy and massage. A hot shower also often reduced the pain whereas activity increased the pain. The report referred to the severity of the pain on the visual analogue scale (both for the left shoulder and the back).[26] She recorded the incidence of pain from the back, down the lateral thigh to the right patella area. Dr Horsley recorded details of sitting, standing, driving and walking tolerances. She also performed a clinical examination of affected areas and examined the x-rays and CT scan referred to in paragraph 30.
[25]PCB 76-84
[26]The shoulder pain with activity is at a level of 8/10. The back pain varies in the range of 6-9/10.
45 Dr Horsley’s diagnosis was that the plaintiff had sustained a significant injury to the left shoulder. She referred to the calcific left supraspinatus tendinosis with an outer under surface partial tear revealed by the ultrasound and said there was evidence suggestive of adhesive capsulitis.[27] She also said the plaintiff had mechanical back pain, although there was a clinical suggestion of discal pathology with a positive slump test and a positive straight leg raise.[28]
[27]PCB 81
[28]PCB 82
46 Dr Horsley recommended work restrictions both for the shoulder and the back. She was sceptical about the plaintiff’s ability to undertake the training, education and clerical tasks referred to by Dr Ho.[29]
[29]PCB 82-83. For details of Dr Ho’s reports, see paragraphs 55-62 of this judgment.
47 Dr Horsley’s report of 5 June 2013[30] noted the current medication as Seretide inhaler, Ventolin inhaler, Panadol Osteo (two tablets, three times a day), Tramadol (slow release tablets, 100mg, one tablet at night on an as needs basis) and Diclofenac (50mg, one tablet, three times a day on an as needs basis).
[30]PCB 85-92
48 Dr Horsley noted the plaintiff’s strategy to improve her skills in English literacy and computing. She made reference to problems with the program of lighter duties, which the plaintiff began in July 2008, and the psychiatric issues addressed with Dr White. She took account of Dr Parikh’s April 2013 report where he confirmed his earlier diagnoses of left shoulder rotator cuff syndrome and lumbosacral sprain with disc pathology and nerve impingement syndrome. She recorded the current symptoms, the pain level on the visual analogue scale[31] and noted that the plaintiff’s level of disability had increased compared to her earlier consultation. She said that there was significant disability in respect of the left shoulder because of the loss of range of motion. She suggested further investigation of the shoulder to confirm whether further management was required and whether she would benefit from another injection. The disability in the plaintiff’s left shoulder and back prevented her from returning to manual work except within the restrictions which Dr Horsley set out in her report. Realistically, she expected the plaintiff would remain out of the workforce into the longer term.
[31]The shoulder pain, when suffered, was acute at a level of 8/10. The chronic back pain varied in the range of 6-8/10.
(f) Mr Rodney Simm
49 Mr Rodney Simm, an orthopaedic surgeon, examined the plaintiff in April 2013 to undertake a medico-legal assessment. He read reports from other health professionals and the x-rays, ultrasound and CT scan of the plaintiff. He noted her medical history and ongoing treatment and medication.
50 Mr Simm said the plaintiff had persistent pain since leaving work with no period of recovery. There was constant pain in the right sacroiliac and buttock region. The area could become more painful with prolonged sitting and physical activities. There was some radiation of pain down the anterolateral aspect of the right thigh. In addition, there was sharp pain over the left shoulder.
51 After conducting his examination, Mr Simm could not establish a definite diagnosis for the chronic left shoulder pain and associated limitation of shoulder movement. The response to the subacromial injections suggested there could be a component of some acromial impingement. The ultrasound reported a partial tear and some calcific degenerative changes. He said that the most likely diagnosis was ongoing degenerative rotator cuff pathology with some associated subacromial bursitis. He said that the mechanism of the injury alleged was consistent with causation or aggravation of the partial thickness tear of the supraspinatus tendon.
52 Mr Simm could not establish a definite diagnosis for the chronic lumbar pain. Most likely, it was symptomatic degenerative lumbar pathology. The continuing pain could relate to underlying facet joint osteoarthritis. However, it was not clear because the mechanical back pain was of non-specific nature and it was not uncommon with such pain that a specific diagnosis could not be reached.
(g) Dr Nigel Strauss
53 The psychiatrist, Dr Strauss, saw the plaintiff on 26 June 2013 to prepare a psychiatric report. He assessed the plaintiff as emotional, upset, anxious and depressed. Dr Strauss read the various reports from other people treating or examining the plaintiff.
54 Dr Strauss’ opinion was that the plaintiff had developed a chronic adjustment disorder with mixed anxiety and depressed mood due to her chronic pain and incapacity. In his view, the plaintiff had significant physical problems. Those factors were the major contributor to her permanent incapacity.
(h) Dr David Ho
55 Dr David Ho, an occupational health consultant, saw the plaintiff on 25 June 2008.[32] In the history he took, Dr Ho noted that the plaintiff felt a click in her left shoulder when lifting a resident back into his wheelchair on 9 May 2008. Later that day, she had difficulty using her left arm to feed a resident. She reported her sore shoulder to the nurse. She did not fill out an incident report as no form was available at the time. Having seen her local doctor, he prescribed some medication and later gave her a cortisone injection. Although she was still in pain, her left shoulder did improve and she returned to work about two weeks later.
[32]Defendant’s Court Book (“DCB”) 41-47
56 On examination, Dr Ho noted that the plaintiff was tender in the lumbosacral level. Alignment and curvature of the vertebral spine were normal. Active cervical spine movements were pain-free to full range and thoracolumbar spine movements were measured to good range.
57 With respect to the plaintiff’s shoulder, Dr Ho saw no abnormality but the left shoulder was generally tender to palpation. There was difficulty elevating or moving the plaintiff’s left shoulder and active left shoulder glenohumeral movements were restricted. In his comments, Dr Ho stated that:
“In my opinion, her employment was a significant contributing factor to her left shoulder condition and incapacity.”[33]
[33]DCB 45
58 Dr Ho found that the plaintiff had residual soreness in her left shoulder and lower back with local tenderness and restriction of movements in her left shoulder and lower back on clinical examination. He believed that the plaintiff had a genuine persisting rotator cuff strain in her left shoulder and residual soft tissue strain in her lower back which were work-related. In his opinion, the plaintiff was not currently fit for her pre-injury duties.
59 Dr Ho also noted that the plaintiff appeared to be progressing into a chronic pain syndrome with undue preoccupation with her pain. He suggested that an early return to work would be suitable occupational therapy for her. He said that she must also be encouraged to exercise and use her left shoulder to avoid progression into a frozen shoulder syndrome.
60 Dr Ho assessed the plaintiff’s work site on 10 July 2008.[34] Dr Ho nominated a range of possible work activities which he regarded as within the plaintiff’s then current restrictions and capability. These included diversional therapy (aromatherapy, beauty care, bingo, hair care, massages, reading newspaper, spiritual support); training and education (including assisting in research and preparation, photocopying, recording records, collating data from surveys and audits); general clerical (including collating and filing, computer work, newspaper preparation, rewriting food tray labels, rewriting dining room table resident lists, telephone operation); nursing (attending resident observations, assisting with meals, collating and updating kitchen information, providing additional fluids to residents, shaving residents, updating photographs on resident files and compiling new admission charts/folders). His report did not set out any factual basis justifying these potential categories of work. Nor did the report address the plaintiff’s literacy skills, her experience or her specific aptitude for the nominated categories of work.
[34]DCB 48-52
61 Dr Ho’s involvement with the plaintiff ceased in 2008. Because Dr Ho’s views were about 5 years old and did not take account of later information from other health professionals or a further examination or assessment of the plaintiff, I did not give them any substantial weight.
62 In his report dated 16 October 2008 regarding his re-examination of the plaintiff on the previous day,[35] Dr Ho noted the plaintiff’s reports of a burning pain in her lower back without any symptoms into her legs. The plaintiff also said her left shoulder was sore and very painful, with the pain extending into her left elbow. The pain was sharp. Dr Ho said that, despite appropriate treatment, the plaintiff claimed the pain in her left shoulder remained the same. Clinical examination revealed essentially a near full range of movements in her lower back. She was nursing her left arm by her side avoiding any use of that arm. Dr Ho recommended an MRI of the left shoulder to assess the extent of the condition and to exclude rotator cuff tendon tear or tendinopathy. He said the plaintiff was not fit for her pre-injury duties and hours but she was not totally incapacitated for work.
[35]DCB 53-57
(i) Mr John O’Brien
63 Mr John O’Brien, an orthopaedic surgeon, examined the plaintiff on 18 May 2009.[36] Having taken a history and conducted a physical examination, Mr O’Brien said that the plaintiff demonstrated signs indicative of rotator cuff tendinopathy and clinical evidence of non-specific back pain. However, he had not seen any investigations which might confirm his clinical diagnosis. He said the history would indicate that employment was a significant contributing factor to both areas of pathology.[37] He referred also to the psychological issues which the plaintiff faced. Although he said that the plaintiff was not capable of her pre-injury occupation, he did not regard the plaintiff as totally incapacitated for work. She could undertake light duties.
[36]DCB 67-71
[37]DCB 69
(j) Associate Professor Mendelson
64 Associate Professor Mendelson, a psychiatrist, saw the plaintiff on 20 July 2009.[38] In the history, Associate Professor Mendelson noted that the plaintiff continued to experience pain in the low back, as well as the left shoulder, and had not been able to return to work. Due to her symptoms, she was not able to undertake activities such as shopping, cooking, cleaning and washing. She said that she was presently taking Panadeine Forte tablets for pain relief. Nearly every night she took two tablets.[39] She said that she was also taking medication at night for depression. She said that she was seeing her general practitioner every two weeks, a psychiatrist every two weeks, and Mr Zannoni every week. She also said she was attending physiotherapy twice per week.
[38]DCB 72-79
[39]DCB 74
65 Associate Professor Mendelson, in answering specific questions put to him, said that the plaintiff had developed some emotional symptoms which were secondary to her ongoing physical complaints. He said there was no indication that she was mentally ill. She believed she was deriving some benefit from the emotional support provided to her by various current treating healthcare practitioners. He said that the plaintiff’s emotional symptoms were due to an understandable psychological reaction to persistent pain and her current situation.
(k) Dr Paul Pers
66 Dr Pers, an occupational health consultant, saw the plaintiff on 12 January 2010.[40] He was to provide an opinion reviewing the plaintiff’s ongoing medical and other health services. He took a history and noted that the plaintiff was currently taking Meloxicam anti-inflammatory medication, Panadeine Forte twice daily for pain if required, and the anti-depressant Mirtazapine. He also recorded that the plaintiff had a series of cortisone injections from her general practitioner. The plaintiff advised that she had ceased consulting the psychiatrist, Dr White, several months earlier but she was continuing to obtain physiotherapy and to attend a counsellor, Mr Zannoni.[41]
[40]DCB 59-66
[41]DCB 60
67 Dr Pers noted the plaintiff told him she had improved 50 per cent since July last year as a result of her treatments. He considered that the current psychological treatment should continue but the physiotherapy could cease. He was of the opinion that the plaintiff had non-specific mechanical pain in the right lower lumbar spine and resolving left shoulder adhesive capsulitis. He said that there needed to be a strong focus on activity-based therapies in the form of physiotherapy which increased the plaintiff’s range of movement and that her counsellor should provide her with strong coping and pain management strategies. I note in passing that Dr Pers’ comments regarding physiotherapy, on one view, appeared to be inconsistent.
(l) Dr Dominic Yong
68 Dr Yong, a specialist occupational physician, assessed the plaintiff on 22 July 2011.[42] Dr Yong’s summary of the plaintiff’s position was that she was a person with chronic pain syndrome involving her left shoulder and back with a degree of de-conditioning. He said she appeared to have significant features of psychological comorbidity and this could be impacting significantly on her condition. He said that the plaintiff’s capacity would reduce if she did not continue with her active physical therapy modalities. Dr Yong’s view was that the plaintiff should engage in active physical therapies – she should continue with her regular walking program, continue doing exercises in the swimming pool, start doing domestic tasks at home on a graduated basis, look at return to work options and have a regular home-based exercise program.
[42]DCB 80-86
(m) Dr Malcolm Brown
69 The plaintiff saw another occupational physician, Dr Malcolm Brown, on 22 May 2012.[43] Dr Brown took her history and appears to have examined the ultrasound, x-ray and CT scan taken in late May and early June 2008.
[43]DCB 87-90
70 After setting out his examination findings, Dr Brown concluded that the plaintiff presented with chronic left shoulder pain, mild uncomplicated lower back pain, and an emotional response to her loss of employment.
71 Dr Brown said that the plaintiff gave a history consistent with supraspinatus tendinopathy and supraspinatus tear, consistent with the radiological findings. He noted she appeared to have had significant incapacity initially and some continuing partial incapacity of shoulder function thereafter. Dr Brown said that the plaintiff had chronic rotator cuff pathology in the left shoulder, probably tendinopathy, and also had uncomplicated lower back pain. She appeared to have some impairment of left shoulder function and minimal impairment of back function.
72 Dr Brown concluded that any work-related incapacity was unlikely to persist for the foreseeable future and that there appeared to be emotional issues affecting the plaintiff’s compliance with an appropriate exercise program. He thought that the plaintiff’s shoulder pathology would settle with time. This view appeared inconsistent with his earlier opinion that the shoulder pathology was chronic. It was also at odds with his suggestion that further radiological investigation might be useful. If the shoulder problem would settle with time, why bother with more radiology?
73 Dr Brown said that the prognosis for her low back pain was for little change or gradual improvement in the future and specific treatment was unlikely to give much benefit.
74 Dr Brown saw the plaintiff again on 1 May 2013.[44] In the clinical history notes, Dr Brown said the plaintiff continued to take paracetamol during the day and a couple of Panadeine Forte each evening for her low back and right shoulder conditions. She took her sleeping medication in the evening. She saw a physiotherapist a few times a year and had a massage occasionally.
[44]DCB 91-94
75 Dr Brown concluded that there was little change in her physical condition from his previous examination of a year ago. The plaintiff continued to complain of right-sided lower back pain and restricted range of movement in the left shoulder. In respect of her shoulder and low back pain, Dr Brown said the prognosis was for little change in the future although the plaintiff might get better functional capacity with a more ambitious exercise program after her left foot healed from the recent surgery regarding a non-work-related condition.
76 Dr Brown gave a further report, dated 19 June 2013,[45] in which he referred again to the plaintiff’s continuing symptoms in the shoulder and back but said that he assessed the plaintiff as having the capacity to do work tasks not involving frequent bending, heavy lifting or repetitive or strenuous tasks with the left upper limb. Based on his own assessment and that of the orthopaedic surgeon, Mr Hooper, Dr Brown said that he believed the plaintiff had the capacity to do the various jobs listed in the vocational assessment report dated 7 June 2013 where the job options included retail sales assistant, receptionist, diversional therapist and admission clerk.[46] It was not apparent from the report on what factual basis Dr Brown determined that the plaintiff had the intellectual or practical skills to perform such work.
[45]DCB 94a-94b
[46]DCB 118-146
(n) Mr Jonathon Hooper
77 Mr Jonathon Hooper, orthopaedic surgeon, examined the plaintiff on 29 February 2012.[47] On examination, he said that the plaintiff’s back movements were limited minimally and there were no hard neurological signs. The left shoulder had a limited range of adduction and flexion. There were signs of impingement and a full range of passive movement in the left shoulder. The left shoulder exhibited signs of impingement due to tendinopathy. There was also evidence of degenerative disc disease in the low back. His opinion was that the plaintiff’s symptoms were precipitated by the incident at work in 2008. However, because the plaintiff had not worked for four years, Mr Hooper said it was arguable that the problem, more marked with the back than shoulder, was due to constitutional degenerative problems.
[47]DCB 95-97
78 In relation to the left shoulder, Mr Hooper believed the incident in May 2008 with the patient sliding off the wheelchair precipitated the onset of the shoulder symptoms. However, the plaintiff had evidence of degenerative disc disease in her back which was constitutional. In essence, the diagnosis was degenerative disc disease in her lumbar spine together with tendinopathy and impingement in the plaintiff’s left shoulder. He believed that the plaintiff’s back condition was constitutional, but it was temporarily aggravated by her work. He believed her shoulder condition was precipitated by the work incident. Mr Hooper said he thought the plaintiff’s shoulder condition could probably be improved by a subacromial decompression. The back condition could be improved by weight reduction and exercise.
79 In a further report, dated 6 May 2013,[48] Mr Hooper answered a number of specific questions put to him. In summary, his responses were that:
[48]DCB 98-99
· the plaintiff had evidence of impingement involving her left shoulder and of low back discomfort;
· the diagnosis was of constitutional degenerative disc disease in her low back and tendinopathy in her shoulder with impingement;
· the prognosis was fair – the shoulder needed further investigation and it might be that a subacromial decompression could make her less symptomatic. An exercise program and weight loss would benefit her back.
80 Mr Hooper’s attitude was that if a subacromial decompression were indicated, it was arguable that this was work-related. However, because the plaintiff had not worked for a number of years, it was his view that work could not be implicated in the plaintiff’s back problem.
Credibility of the plaintiff
81 Having seen the plaintiff give evidence and be cross-examined, I accept that the plaintiff is an honest witness and that she suffered the injuries alleged and that the two separate injuries have affected her life in the ways which she described. Occasionally, her evidence was confused but I consider the stress of the court appearance and, perhaps more particularly, the fact of English not being her first language as the reason for this. I do not doubt that she is a witness of truth. I am fortified in this view by the position adopted by the defendant. It was not put to the plaintiff in cross-examination that she was either exaggerating or lying. Indeed, in opening, counsel for the defendant said that this case was “a range case”, not a credit case. The defendant did not dispute that the plaintiff’s injuries arose in the workplace.
82 I have read the affidavits of the plaintiff sworn on 16 December 2011 and 19 July 2013 respectively. I have carefully considered the evidence of the plaintiff contained in those affidavits.
Findings regarding compensable injury
83 Dr Yong alone diagnosed a chronic pain syndrome. He rejected the possibility of any organic or physical pathology in the plaintiff’s left shoulder or lower back. In the circumstances, I do not accept Dr Yong’s evidence because it is inconsistent with the views of the other health professionals providing reports.[49] I note that Dr Yong did not see any of the x-rays or CT scans. Nor did he read or receive any of the reports of the other health professionals (except for Dr Pers) who saw and examined the plaintiff.
[49]See for example, Dr Parikh, Dr Horsley, Mr Simm, Mr Hooper and Dr Brown.
84 I note that some reports made reference to the plaintiff’s mental state and the connection between her psychiatric situation and the pain which she experienced. The plaintiff was treated by the psychiatrist, Dr White, who said that when he last saw the plaintiff in January 2010, she was (and had been since at least September 2009) psychiatrically well. There was no psychiatric evidence from the defendant to the contrary.
a) Left shoulder
85 I accept the preponderance of medical opinion that the plaintiff injured her left shoulder on her dominant arm. This injury was a compensable injury arising out of her employment.
86 The left shoulder injury was variously described as persisting rotator cuff strain, rotator cuff pathology with associated subacromial bursitis, rotator cuff tendinopathy and adhesive capsulitis.
b) Lower back
87 I accept the preponderance of medical opinion that the plaintiff injured her lower back. This injury was a compensable injury arising out of her employment.
88 The back pain was referred to as lumbosacral strain, mechanical back pain, residual soft tissue strain of the lower back and a degenerative back condition. I further accept that there was more recent reference to the back pain as uncomplicated and non-specific.
Plaintiff’s evidence as to consequences
a) Left shoulder
89 The plaintiff gave evidence that she suffered from constant pain in the left shoulder.
90 The plaintiff said that the pain in her shoulder stopped her from going to sleep.[50] In addition, most nights she woke up due to the pain.[51] As a result, she was often tired and exhausted. Maxwell P said in Haden’s case[52] that it was a matter of great significance for a person to be denied the ability to enjoy uninterrupted sleep.
[50]PCB 19
[51]PCB 23
[52](2010) 31 VR 1 at [45]
91 The plaintiff’s left shoulder feels heavy and uncomfortable. The plaintiff suffers pins and needles in her left arm and sometimes in her fingers. The pain flares from time-to-time, especially at night or if she has tried to do too much.
92 The shoulder pain causes the plaintiff difficulty in dressing and undressing herself. She is also required to use only her non-dominant right hand in washing herself, brushing her hair and toileting.
93 The plaintiff is unable to perform housework due to the problems caused by her left shoulder. She is reliant upon her children to undertake, wholly or mainly, shopping, cleaning, cooking and general housework.
94 The plaintiff is also saddened by the fact that due to her left shoulder, she will not be able to interact with her grandchildren and look after them as she had hoped.
95 The plaintiff is rarely able to attend the Samoan dinner dances which she formerly enjoyed. The dancing causes the pain to flare-up in her shoulder. She cannot dance without pain. The plaintiff misses the companionship which these events permitted. The plaintiff has no spouse. She said that any romantic desires on her part have been overtaken by the constancy of the pain. This upsets her as she feels she is missing out on an important aspect of her life.[53]
[53]PCB 24
96 The plaintiff is upset that she cannot work at her former job at Meadow Glen. She greatly enjoyed her work with the elderly but realises that she is now physically incapable of ever returning to her former job.
97 The plaintiff uses a heat pack and/or gel like “Deep Heat” on her shoulder each day. She has had 4 cortisone injections in her shoulder but the relief they give is short-lived. She takes Panadol Osteo each day, Tramal most nights to help her sleep and, 2-4 times per week, Panadeine Forte.
b) Lower back
98 The plaintiff gave evidence that she suffered from constant pain in the back.
99 The plaintiff said that the pain in her back stopped her from sleeping properly and caused her to wake at night.
100 The pain in the plaintiff’s back goes down her right leg and into her knee. Sometimes the pain is bad. If the plaintiff sits too long in one position, she has to get up and move about. She cannot watch a television show right through without moving.
101 The plaintiff’s back pain has resulted in the plaintiff walking more slowly than previously, to the extent that she could not maintain walking pace with elderly people in the walking group which she joined. The walking group had been both a social and exercise outlet. However, due to her slowness, the plaintiff became too embarrassed at having the other older people wait for her to catch up. Nor can the plaintiff any longer attend the gym which she used to go to.
102 The back pain has affected the plaintiff’s ability to drive for longer than about 20 minutes. After that, the pain in her back, leg and knee becomes too great.
c) General comments
103 The various doctors who examined the plaintiff appear to accept that upon examination, the plaintiff suffered pain in the two areas complained of, namely left shoulder and lower back. Generally, the doctors did not doubt the existence of the pain. However, some referred to her mental or psychiatric condition which they contended made the plaintiff’s experience of pain worse. However, as noted previously, the plaintiff is not suffering from any psychiatric illness. From the plaintiff’s perspective, it is contended that there is no pain from, or because of, a psychiatric condition. The defendant did not adduce evidence from a psychiatrist to the contrary.
104 There is objective evidence of the disabling effect of the pain upon the plaintiff.[54] None of the doctors suggested that the plaintiff could return to the job which she enjoyed. Indeed, at the time she ceased employment, she was on reduced duties in any event. Her present condition is such that it would not be possible for her to return to that job and, hence, that option is permanently closed to the plaintiff.
[54]As referred to in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 and Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
105 I refer also to earlier paragraphs of this judgment which deal with the impact of the injuries on the plaintiff. Given her age, she can expect to face these issues for a lengthy period.
Defendant’s submissions
106 The defendant submits that the court cannot be satisfied that the consequences of the plaintiff’s injuries meet the statutory threshold. The defendant says this for two reasons. First, the plaintiff has not provided proper or sufficient evidence from which the court could compare the plaintiff’s condition before and after the injuries and, hence, be able to assess whether the impairment was serious. Second, the plaintiff has failed to identify clearly the consequences of the pain and suffering flowing from her alleged injuries. I reject these submissions.
107 In my view, the matters referred to at paragraphs 89-102 above show that the second contention is incorrect. The plaintiff has sufficiently set out the consequences of the injuries.
108 As to the first point, the defendant contended that because the court was required to compare the plaintiff’s position at two different times, in the absence of evidence regarding the initial point in time, no comparative analysis was possible. I do not accept the applicability of this argument in the present context. While I accept that the plaintiff suffered on occasion from shoulder and/or back pain in the period before May 2008, the pain or discomfort was not so debilitating as to require the plaintiff to take time off work. On occasion, the plaintiff took medication to lessen her discomfort. She also took sick leave on some days, but that was the result of other complaints like flu or headaches (which are not relevant for present purposes).[55] The defendant adduced no evidence that the plaintiff missed work due to any injuries to her left shoulder or lower back before May 2008.
[55]Transcript (“T”) 68, L3-7
109 In short, I consider the plaintiff had no pre-existing left shoulder or back injury of significance before May 2008. Even if the plaintiff did have some pre-existing injuries to her shoulder and lower back, then they were so insignificant that the work incidents in May 2008 clearly aggravated those injuries to a degree where the plaintiff was unable, initially, to attend work at all and then could return to work only while remaining in pain and subsequently (after the second injury) performing lighter or restricted duties. Whatever soreness the plaintiff might have experienced in her left shoulder or lower back from time to time, it did not prevent her from performing her physically demanding work as a personal care attendant at Meadow Glen.
110 The defendant submits that, having regard to all the medical evidence, including the histories taken from the plaintiff, the plaintiff’s physical symptoms arise to a significant extent from the plaintiff’s mental state. Insofar as this submission implies or assumes that the plaintiff’s pain arises from her mental state only and has no physical or organic basis, I reject the submission.
111 I am satisfied, on the whole of the evidence, that:
· the plaintiff suffers pain in her left shoulder;
· based on the plaintiff’s evidence and the weight of the medical evidence, there is some organic or physical reason for the pain in the left shoulder;[56]
[56]Because there is an organic or physical basis for the pain, I do not need to undertake the two-stage approach referred to in paragraph 12.
· the pain in the left shoulder was caused by the incident at work on 8 May 2008;
· the plaintiff has suffered the consequences about which she gave evidence due to the incident regarding her left shoulder;
· those consequences in respect of the left shoulder on the Plaintiff’s dominant arm, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
· the plaintiff suffers pain in her lower back;
· based on the plaintiff’s evidence and the weight of the medical evidence, there was some organic or physical reason for the initial lower back pain but now the pain is more non-specific and is probably attributable to degenerative disc disease;
· the pain in the lower back was caused by the incident at work on 27 May 2008;
· the plaintiff has suffered the consequences about which she gave evidence although it is unclear that all the current symptoms flowed only from the May 2008 incident affecting her lower back;
· those consequences in respect of the injury to the lower back, when judged by a comparison with other cases in the range of possible impairments, cannot be fairly described as being more than “significant” or “marked” and as being at least “very considerable”. While I accept the plaintiff injured her lower back at work and continues to suffer some pain as a result, I am not satisfied that the consequences regarding the lower back injury are at least “very considerable”.
112 The defendant sought to argue that because the plaintiff failed to call Dr Habib, a Jones v Dunkel[57] inference should be drawn against the plaintiff. I reject this submission. If there were evidence that the plaintiff had suffered a substantial injury to her left shoulder or lower back before May 2008, with the result that she was unable to perform her usual work duties as a personal care attendant, the point might have been stronger. However, in the absence of such evidence, I do not consider a party in the plaintiff’s position should be subject to such an inference when the evidence would apparently not establish any significant injury and, hence, there would be no need to undertake a comparative exercise in respect of the pain consequences for the plaintiff’s body before and after the events of May 2008.
[57](1959) 101 CLR 298
113 The defendant further referred both to the pain experienced by the plaintiff as a result of her recent foot surgery and treatment by a consultant for headaches, anxiety and forgetfulness. The former is separate from the pain in her left shoulder and lower back. The latter does not directly affect the physical symptoms experienced by the plaintiff in her left shoulder and lower back, although there is some suggestion that when she is anxious, her experience of pain increases. Nevertheless, when the anxiety is reduced or controlled through medication, the pain in her left shoulder and lower back persists.
Conclusion
114 Having regard to the whole of the evidence, I grant leave to the plaintiff pursuant to s134AB(16) of the Act to bring common law proceedings for pain and suffering damages in respect of the injury suffered in May 2008 to her left shoulder in the course of her employment by the defendant.
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