McAleer v Austin Health
[2015] VCC 2
•13 February 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-00880
| MARVELLE BERNADETTE McALEER | Plaintiff |
| v | |
| AUSTIN HEALTH | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2014 and 10 December 2014 | |
DATE OF JUDGMENT: | 13 February 2015 | |
CASE MAY BE CITED AS: | McAleer v Austin Health | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 2 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder/arm injury and consequential psychiatric injury – paragraph (a) and paragraph (c) of definition of “serious injury” – pain and suffering only – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hunter v Transport Accident Commission [2005] VSCA 1; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave be granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect of a right shoulder injury suffered during the course of her employment with the defendant.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Ingram with Mr G A Worth | Slater & Gordon |
| For the Defendant | Mr B R McKenzie | Hall & Wilcox |
HIS HONOUR:
1 By way of Originating Motion filed on 28 February 2012, Marvelle Bernadette McAleer (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings for a right shoulder/right arm injury and consequential psychiatric injury suffered by her throughout the course of her employment with Austin Health (“the defendant”), but more particularly, on 21 July 2008 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Each party tendered a large number of documents.[1]
[1]See Annexure ‘A’
Relevant legal principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies fundamentally on paragraph (a) but also on paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act. Those paragraphs read:
“‘serious injury’ means–
(a) permanent serious impairment or loss of a body function; or
...
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; ... .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the right shoulder/right arm.
7 The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is variously described as Major Depression and an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
8 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)“the injury” suffered by her arose out, or in the course of or due to the nature of, her employment with the defendant on or after 20 October 1999;[3]
(b)“the injury” and the resulting impairment (paragraph (a)) and/or the mental or behavioural disturbance or disorder (paragraph (c)) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)the “consequences” to the plaintiff of the right shoulder/arm impairment in relation to injury in relation to “pain and suffering” must be “serious” – that is, the impairment “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[5]
(d)the “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” must be “severe” – that is, “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”[6]
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4]Barwon Spinners (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (c) of the Act
[6]See s134AB(38)(b) and (d) of the Act
9 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)may take into account the physical consequences of a mental behavioural disturbance or disorder only for the purposes of paragraph (c) of the definition of “serious injury”;[8]
(c)must make the assessment of “serious injury” at the time the application is heard;[9]
(d)notes that it has been observed that the question of whether an injury satisfies the definition of “serious injury” is largely a question of impression and value judgment;[10]
(e)must disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[11]
[7]See s134AB(38)(h) of the Act
[8]See s134AB(38)(i) of the Act
[9]See s134AB(38)(j) of the Act
[10]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Western Foods [2009] VSCA 242 at paragraph [67]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [98]
[11]See generally Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]–[36]
The Issues
10 Counsel for the defendant informed the Court that the defendant accepted there was a compensable injury suffered by the plaintiff on 21 July 2008, being the aggravation of either a mild right shoulder problem or, alternatively, a mild cervical problem. However, such problem was “quickly overtaken” by a chronic pain syndrome which should be characterised under paragraph (c) of the definition of serious injury. In particular, counsel referred me to the decision of Papamanos v Commonwealth Bank of Australia[12] which essentially requires the plaintiff to demarcate between paragraph (a) and paragraph (c) injuries, and, if it be a paragraph (c) injury, the defendant asserts that such injury is not “severe” within the meaning of the Act. Alternatively, if the injury is a paragraph (a) injury, the defendant asserts that it is not “serious” within the meaning of the Act.
[12][2014] VSCA 167
11 When the matter was originally called on, counsel for the defendant also submitted that an issue of permanency arose in relation to the alleged injuries, as the plaintiff was about to commence a pain management course with Dr Lim at the North Eastern Rehabilitation Centre. After discussion, the matter was adjourned part-heard from 15 August 2014 to 10 December 2014 in order that the plaintiff complete the pain management course and to allow for further medical opinion to be obtained commenting on the results of such course.
The evidence of the Plaintiff
12 The plaintiff gave evidence that she had read her affidavits sworn on 17 May 2011,[13] 9 May 2012,[14] 31 May 2013,[15] 8 April 2014[16] and 22 July 2014,[17] and the contents were “true and correct” to the best of her knowledge.[18]
[13]Exhibit 1, pages 12–20 PCB
[14]Exhibit 1, pages 21–23 PCB
[15]Exhibit 1, pages 24–25 PCB
[16]Exhibit 1, pages 25aa–25dd PCB
[17]Exhibit 1, pages 25a–25c PCB
[18]Transcript (“T”) 36, Line (“L”) 23–29
13 In addition to her affidavit evidence, I permitted the plaintiff to give some further limited viva voce evidence. She confirmed that she is a nurse by occupation, working in the Outpatient Department at the defendant for about 27 hours a week. Her duties involve performing some general observations, some wound dressing and looking after patients who have attended specialist appointments with consultants at the Outpatient Clinics.
14 The plaintiff is not permitted to lift or slide patients or “anything like that”.[19]
[19]T33, L18
15 The plaintiff confirmed that one of her former treating general practitioners, Dr Margaret Howsam, had retired and she is now being treated by Dr Allan McKenzie at the same clinic.
16 The plaintiff gave evidence that she is presently taking the following medication:
(a)600 milligrams of Lyrica daily (300 milligrams in the morning and in the evening) for what she believes is her “neuropathical pain”;
(b)120 milligrams of Cymbalta to treat her depression;
(c)25 milligrams of Seroquel (she may only take one or two tablets a day) which is used to assist her sleeping;
(d)5 milligrams of OxyNorm when required. The plaintiff stated she mostly uses that drug when she is in a lot of pain and cannot sleep. In answer to a question from the Court, she estimated that she uses that drug “probably twice a week … yeah, occasionally there is the third time”.[20]
[20]T34, L26–28
17 The plaintiff confirmed that she was discharged from the care of the orthopaedic surgeon, Mr Robert Howells, on 4 August 2014, and although he is happy to see her again at any time, he cannot “fix the tears” which he explained to be tears in the acromioclavicular joint of the right shoulder.
18 The plaintiff also confirmed that she had recently completed a second pain management course with Dr Terence Lim, consultant in rehabilitation and pain management, running from 24 June 2014 to 14 December 2014. The plaintiff gave the following evidence in relation to such course:
Q:“Can you tell his Honour what was involved in that program?---
A:It was made up of seeing an – physiotherapist and seeing them, and an occupational therapist. I attended at the start twice a week, and also had hydro pool. And learning strategies, and coping mechanisms to help that and manage my – well, the pain to the best that I could. And also to also learn my new levels that I could work at.
Q:Just explain that to us in a bit more detail. Your levels that you could work at, what does that mean?---
A:Not being able to get to where I was prior to my injury. I won’t be able to work to the same capacity.
Q:You have mentioned triggers. Well, if you didn’t, what are the triggers?---
A:Triggers can be a range of things. It can be, well, stress.”[21]
[21]T35, L14–28
19 The plaintiff also described that she currently experiences pain that goes up the right side of her neck, down her right shoulder into her right arm. In particular, the pain goes down the right arm and extends into her little, ring and middle fingers. Such pain is there all the time, although it does fluctuate and depends on what she is doing at any particular time.
20 By way of her first affidavit, the plaintiff gives the following pertinent evidence:
·She is a forty-six year old[22] married woman with three sons.
[22]Born August 1968
·She attended school to the age of eighteen to Year 12 level and thereafter worked with the State Bank of Victoria, performing telling duties and other duties for the bank at various branches. She was next employed by the defendant, initially as a hospital ward clerk and subsequently a ward assistant, over a five year period until 1996 when she ceased work in order to have a family.
·She spent about ten years out of the workforce before returning in 2004 or 2005 in a part-time capacity in order to undertake a nurse training program at RMIT in Bundoora.
·On completion of such program, she commenced employment with the defendant as a Division 2 Nurse on 31 January 2006.
·She worked in the spinal unit of the defendant, which involved her undertaking “very heavy manual handling work” because she was largely involved in the care of paraplegic and quadriplegic patients who were unable to provide assistance to hospital staff responsible for maintaining their welfare. She describes the work caring for such patients to be “fairly intensive physical manual work and placed significant strains upon the bodies of the nursing staff required to undertake these tasks”.
·The plaintiff describes the occurrence of “the injuries the subject of this application”. She states:
“On 21 July 2008 … I had just completed a manual lift of a quadriplegic patient with the assistance of a male member of the nursing staff moving this patient from his bed to a wheelchair by rolling him, dressing him, whilst supporting his limbs, and then using a ceiling lifting hoist to assist with lifting him into the wheelchair. From there it was necessary to manually assist the patient with one staff member holding and supporting the patient to draw him back into the wheelchair and then I was required to position myself in front of the patient to take his full weight as the sling was removed from underneath him. This patient was a tall man in his late 30s of only a medium build. After positioning this patient in a chair I did a set of standard observations on him. I walked out of the room in which he was located to the nurses’ desk then realised I had left the observation paper containing his information behind and I walked back into the room. I turned my head to the left to look for my papers and as I did so I suffered a very strange sensation as if something had been dropped on my head or I had been electrocuted. The shooting pain which I suffered went straight down my right arm.”[23]
[23]Exhibit 1, paragraph 6, page 14 PCB
· She essentially rested for the balance of her shift and, on attending work the following day, she was advised to attend a staff clinic, but, unfortunately, there was no medical practitioner in attendance to examine her. She ultimately attended her local general practitioner, Dr Lindsey Hyde, at the Reservoir Medical Centre.
· She attended Dr Hyde on 23 July 2008 and he referred her for a CT scan of her cervical spine, which was performed on 24 July 2008.
· She also consulted Dr Margaret Howsam at the same clinic, who arranged for the plaintiff to undergo a right shoulder ultrasound on 28 July 2008.
· Dr Howsam arranged for her to under an ultrasound-guided injection into her right shoulder on 11 August 2008, but such procedure only provided “limited and temporary relief”.
· She was referred to the orthopaedic surgeon, Mr Robert Howells, whom she initially consulted on 29 August 2008, at which time she was having persisting spasms and pain in her right shoulder region and numbness and tingling extending to the fingers of her right hand. Mr Howells arranged for the plaintiff to undergo an MRI scan of her right shoulder on 14 September 2008.
· Mr Howells performed an arthroscopic examination of the right shoulder on 17 November 2008.
· After such surgery, the plaintiff was referred to the rehabilitation specialist, Dr Terence Lim, who referred her to the North Eastern Rehabilitation Centre where she attended, initially as an inpatient for three weeks and thereafter as an outpatient for a period of 12 months. The treatment at that facility included physiotherapy, occupational therapy, psychological counselling and instruction about exercises to help relieve pain and disability.
· Dr Lim trialled the plaintiff on the medication, Lyrica, and also referred her for a MRI scan of the cervical spine on 27 October 2008.
· The plaintiff remained under the care of Dr Howsam throughout this period and, in addition to the Lyrica, she was also prescribed anti-inflammatory medications and pain-relieving medications in the form of paracetamol, codeine phosphate, Tramal, Norgesic for muscle spasm, Mersyndol for use at night, and the anti-depressant medication, Endep.
· Dr Howsam referred the plaintiff to a physiotherapist, Mr Thihan Chandramohan, whom she attended on a number of occasions.
· The plaintiff developed a psychiatric reaction to her physical symptoms and was referred to the psychiatrist, Dr Bethany Whitehouse, in early 2009, who prescribed Seroquel as well as the anti-depressant, Cymbalta. When Dr Whitehouse went on maternity leave, the care of the plaintiff was transferred to the psychiatrist, Dr Kerry Mack, at the North Park Private Hospital. She commenced treating the plaintiff on 9 June 2009. Such treatment has continued to date (as at the date of the first affidavit). She has also had psychological counselling from Ms Jenny Fahey.
· In relation to her psychiatric condition, the plaintiff states:
“… I believe that I have sustained a condition of considerable severity which impacts upon my daily activities to a very significant extent. With the assistance of the treatment which I received I was able to face up returning to work in June, 2009 and I have been able to hold down my employment on an ongoing basis since that time. I am restricted to two days a week of work as an outpatient nurse one and a half days a week at the Austin Hospital and one and a half days a week at the repatriation campus. I force myself to go to work so that I can remain active but I find it difficult still to go to work even allowing for the use of the medications which in part control my psychological symptoms. I struggle at work and am unsure as to whether I can remain at work in the longer term …”[24]
· She continues to suffer persisting pain and disability affecting her right shoulder blade, right shoulder region and her neck, with symptoms extending down the right arm.
· Because of her injuries, she has had to downgrade her involvement to some extent in coaching junior basketball, as she is unable to participate fully in the coaching. Her weight has increased and her sleep is greatly disturbed by reason of the pain that she suffers, and she cannot sleep on her right side. If she turns onto that side, it causes her to wake up. She finds it difficult to undertake many of the chores that she previously had to do for the family involving her husband and three sons, such as cooking, cleaning and like activities.
[24]Exhibit 1, paragraph 21, page 18 PCB
21 By way of her second affidavit, the plaintiff gives the following pertinent evidence:
·Since her first affidavit, she has continued to work for the defendant in the outpatient specialist clinic, working two and a half days permanent, which is one and a half days at The Austin and one day at the repatriation campus. On Mondays, she works a 10-hour shift and is “absolutely wrecked” on Tuesdays, and has difficulty functioning at home.
·Life is a “real effort” and she has had an “immense weight gain”, making her “really depressed and distressed”. On one occasion, she attempted suicide and was referred back to Dr Kerry Mack (the treating psychiatrist) and Ms Jenny Fahey (the treating psychologist) for support and treatment.
·She still suffers severe pain under the right shoulder blade, which is constant and often extends up into the back of her neck, with spasm and pinching. The pain also radiates into her right breast and is extremely uncomfortable, causing her to become short-tempered and frustrated by the pain. She continues to experience altered sensation in the three outer fingers of her right hand and, on occasion, her right hand becomes cold with pain.
·She continues to attend doctors at the Reservoir Medical Group and is now under the care of the general practitioner, Dr Brett Hunt.
·She takes the following medication (as at the date of the second affidavit): 600 milligrams of Lyrica, 120 milligrams of Cymbalta and 20 milligrams of Seroquel. She has been referred back to Dr Lim for further advice on pain management.
22 By way of her third affidavit, the plaintiff gives the following pertinent evidence:
·Since her previous affidavit, she has continued to experience pain in the right shoulder, together with pain in her neck, which radiates down the right arm and into her fingers. The pain is constant but of fluctuating severity and is aggravated by physical activity.
·She continues to consult her local general practitioner, Dr Hunt, at the Reservoir Medical Group, once or twice a month.
·Her general practitioner arranged for her to undergo an ultrasound of her right shoulder in about July 2012. She has also been referred for some physiotherapy at the Physiotherapy Department of the defendant.
·She has continued to “battle with my weight” and underwent a sleeve gastrectomy on 23 August 2012 in an attempt to lose weight, and has since lost approximately 52 kilograms.
·In about July 2012, she fell at work and suffered a temporary increase in her right shoulder symptoms which settled down to the same level as previously.
·She continues to take Lyrica, Cymbalta, Seroquel and also Panadeine when needed. Occasionally, she uses a heat pack to try to alleviate the pain.
·She continues to be employed by the defendant on a part-time basis in the specialist outpatient clinics, working approximately 23 hours per week over two-and-a-half days (generally Mondays, Thursdays and Friday afternoons).
·Her sleep is disturbed by the pain.
23 By way of her fourth affidavit, the plaintiff gives the following pertinent evidence:
·Since swearing her earlier affidavits, she has continued to experience ongoing problems with her right shoulder.
·Such problems were aggravated on 11 July 2013 when she was assisting an elderly female patient who lost her balance and “grabbed my right shoulder”, resulting in a strain being placed on the right shoulder and arm. She received medical treatment for that injury, including physiotherapy treatment and medication, before being referred back to the orthopaedic surgeon, Mr Howells, who examined her on 17 December 2013.
·She has continued to consult other practitioners, particularly Dr McKenzie at the Reservoir Medical Group, on approximately a monthly basis, as well as a psychologist at that facility, Ms Rosa Iacovno, who has taken the place of Ms Fahey.
·She still experiences symptoms from her ongoing injuries and has been prescribed medication consisting of OxyContin (later removed), Lyrica, Cymbalta and Seroquel. Dr Lim examined her on 8 April 2014 and readjusted her various medications.
·In relation to medications, she states:
“I find that the medications which I take provide some temporary relief from the pain which I suffer. I suffer particularly pain in my right shoulder although this appears to extend up into my neck and also down into my right arm and as far as the fingers in my right hand. I am never free of pain and the pain which I suffer varies in severity depending on my use of medication and in any activities which I might undertake, my right hand being my dominant hand. There have additionally been some symptoms emerging in my left shoulder which I believe may relate to my favouring my right shoulder and I have been attending my physiotherapist James Telford at Heidelberg Physiotherapy for the treatment of those symptoms. I usually attend that practitioner on a twice weekly basis.”[25]
·Her capacity for employment “remains restricted”. She continues to work approximately 21 hours a week. She continues to be restricted in most activities involving the use of her right shoulder. She is dependent upon her husband and sons to assist with the performance of household chores, although she continues to involve herself in coaching her eldest son’s basketball team, but she does not physically engage in playing basketball with the boys.
·She has lost 55 kilograms in weight because of the surgical procedure undertaken in August 2012.
·Her sleep continues to be disturbed. She finds that frequently she has difficulty getting to sleep, and if she rolls onto her right side, she awakes in pain.
·The medications which she has been prescribed only take “the edge off the pain” and never leave her pain free.
[25]Exhibit 1, paragraph 6, page 25bb PCB
24 By way of her last affidavit, the plaintiff gives the following salient evidence:
·Since swearing her earlier affidavits, she has continued to experience ongoing problems with her right shoulder and has continued to attend the physiotherapist, James Telford, twice per week for treatment.
The cross-examination of the Plaintiff
25 Under cross-examination, the plaintiff gave the following pertinent evidence:
·She confirmed that she has been treated by two psychiatrists, initially by Dr Whitehouse and later by Dr Mack. She believed that she had not consulted with Dr Mack since 2009 and certainly not in the last few years.
·After ceasing to see Ms Fahey, she commenced seeing a psychologist, Ms Rosa Iacovno, who has rooms in the same building as her treating general practitioners.
·She estimated that she commenced seeing Ms Iacovno in June 2013 and has continued to see her since that date, approximately every three weeks.
·She confirmed that she had been prescribed Seroquel because of difficulties in sleeping. In particular, the following evidence was given:
Q: “And it was because – the trouble with the sleeping was due to problems with insomnia and worrying about things, wasn’t it?---
A: And pain.
Q: So partly pain. The sleep problems were partly pain and partly insomnia, is that right?---
A: Um - - -
Q: Or partly worrying about things? Things other than pain?---
A: No.”[26]
[26]T38, L28–T39, L2
·It was suggested to her that she was awake during the night due to hypervigilance and, in particular, the following evidence was given:
Q: “What’s being suggested to you is the reason you’re having trouble sleeping is what’s called hypervigilance, that’s being persistently hyper alert, thinking about things, aware [of] things around you. What do you say about that? Why do you say, as best you can say, why you’re not sleeping?---
A: Because I wake up due to pain, I can’t get comfortable.”[27]
[27]T41, L16–22
·She accepted that she had some benefit from her recent pain management program, in that her pain levels were reducing and that “to a degree” she was regaining control of not only her pain but also her life.
·She did not accept that her function had increased since the pain management program, notwithstanding that her pain levels had been reduced.
·When queried that she may have told Mr Rodney Simm, orthopaedic surgeon, on 25 November 2014 that she continued to require OxyNorm, 5 milligrams, one or two nights each week, she denied that it was only ever once a week.
·She confirmed that she has difficulty with vacuuming and scrubbing bathrooms around the house, but she accepted that she could cook and clean generally.
·She accepted that she drives one or more of her sons to basketball games, continues to coach the basketball side and also drives her sons to various football games and sometimes will cut up the oranges at the football games.
·She confirmed that although working part-time now, she was also working part-time prior to the injury. She works nine hours on a Monday, eight hours on a Thursday and five hours on a Friday.
·She accepted that the 22 hours were not chosen by her, but allocated based on a roster. The work covers a “fairly broad spectrum of different specialists” and the plaintiff accepted that such work is “intellectually challenging” and “satisfying”.
·She accepted that on her return to work after “the injury”, she has worked “fairly continuously since that time”, subject to exacerbation when problems have “flared up”.
·She accepted that she has been able to maintain the outpatient work for the last six years and she hopes to continue with such work in the future. She accepted that such work avoids the heavier aspects of nursing duties and, according to her medical certificates, she is not to perform any lifting above shoulder height and no lifting more than 5 kilograms.
·When it was put to her that the medical records of Dr Lindsey Hyde (one of her general practitioners) would suggest that on 9 January 2008 (prior to the injury), she was discussing lap banding surgery for weight reduction, the following evidence was given:
Q: “As you probably appreciate, part of this process, records brought from treating doctors and that’s part of the process and what’s being put to you now is a record on 9 January 2008 with a – I assume it’s your GP at that stage and it’s being put to you, as you imagine, when you go to a GP they write down – most of them do, write down what you’ve come for and whether they’re prescribing anything for you and what’s being put to you now on 9 January 2008, according to the record at least, there was a long discussion – do you recall that?---
A: Yep.
Q: So it was obviously an issue that was playing on your mind six months before the injury, is that right?---
A: Correct.
Q: And the procedure you were discussing was lap banding, this is discussing in January 2008. I take it the purpose of that was the same as the purpose behind that surgery that you had in August 2012, to reduce the weight, is that right?---
A: Yeah.
Q: Is it fair to say before this injury you were probably going to have some sort of surgery to deal with weight issues anyway?---
A: Looking into it.
Q: And probably going to have that surgery anyway?---
A: Well, yeah.”[28]
·When queried about the fluctuations of her pain, she described strong pain as being up around 9 out of 10 and, on those occasions, she takes OxyNorm. She described weak pain as being in the order of 5 out of 10.
·She accepted that, notwithstanding the pain, she is still able to work on a part-time basis, as she did prior to the injury, was able to participate in some sporting events, and that on a typical day, life is fairly busy for a working mother with three sons.
·She accepted that she continues to socialise with family and friends.
[28]T53, L6–27
Re-examination of the Plaintiff
26 When queried as to the frequency of pain, when the pain is somewhere between strong pain and weak pain, she described that to be occurring on a regular basis and, by that, she meant “every day”.
Diagnostic investigations
27 The plaintiff has undergone a number of diagnostic investigations to assist in determining the source of her pain. I refer to the following:
(a)A CT scan of the cervical spine undertaken by the plaintiff on 24 July 2008.[29] The radiographer reported:
[29]Exhibit 2, page 26 PCB
“The bony spinal canal is of adequate dimensions. There is no disc herniation seen. The regions of the neural exit foramina appear free of compromise and disc material. No uncovertebral degenerative joint changes are seen.”
(b)A right shoulder ultrasound undertaken by the plaintiff on 28 July 2008.[30] The radiologist reported:
[30]Exhibit 2, page 27 PCB
“Subacromial bursitis as well as degenerative change of the AC joint. No rotator cuff abnormality is detected.”
(c)An MRI scan of the right shoulder undertaken by the plaintiff on 14 September 2008.[31] The radiologist concluded:
[31]Exhibit 2, page 29 PCB
“Focal increased T2 signal within the insertional fibres of supraspinatus at the articular surface, as well within the musculotendinous junction at the bursal surface, are suggestive of partial tears. The acromion indents the under surface of the musculotendinous junction at the point of tear, suggesting in this location that there is probably impingement and there is acromioclavicular degenerative joint disease.”
(d)An MRI scan of the cervical spine undertaken by the plaintiff on 27 October 2008.[32] The radiologist concludes:
[32]Exhibit 2, page 30 PCB
“Only minimal degenerative change as described with mild right C4/5 neural exit narrowing.”
(f)An ultrasound of the shoulder and right upper arm undertaken by the plaintiff on 15 May 2012.[33] The radiologist concluded:
[33]Exhibit 2, page 31 PCB
“It was difficult to get good ultrasound images due to the large patient habitus.
The biceps, subscapularis, infraspinatus and supraspinatus tendons however were visualised and within limits they are of normal appearances.
No large tear or defect is identified. There is mild impingement of the supraspinatus tendon on active movement. Degenerative change is seen in the right ACJ.”
(e)An MRI scan of the cervical and thoracic spine undertaken by the plaintiff on 22 March 2011.[34] The radiologist commented:
[34]Exhibit 2, page 32 PCB
“1. Mild multilevel cervical spondylosis without neural compromise. No cord compression.
2. No significant thoracic spine abnormality.
3. No evidence for compromise C7 to T2 nerve roots.
4. 0.8 cm discrete routed T2 hyperintense focus demonstrating the posterior and medial aspect of the right lobe of the liver. ? nature ? haemangioma. Ultrasound could be considered to further evaluate.”
(f)An ultrasound of the right shoulder undertaken by the plaintiff on 11 July 2013.[35] The conclusion of such scan was:
“Ultrasound scans of the right shoulder show no abnormality. The supraspinatus tendon appears intact. There is no evidence of any joint or bursal fluid. Degenerative changes are noted in the acromioclavicular joint.”
(g)X-ray of the right shoulder undertaken by the plaintiff on 11 July 2013.[36] The radiologist concludes:
“No fracture or dislocation identified. A tiny calcific opacity is noted adjacent to the medial aspect of the proximal humeral shaft. This possibly represents a portion injury to the pectoralis major muscle.”
[35]Exhibit 2, page 32a PCB
[36]Exhibit 1, page 32b PCB
The treatment of the Plaintiff
28 The plaintiff relies on medical reports from Dr Margaret Howsam, one being undated[37] and the other dated 2 September 2008;[38] Dr Brett Hunt dated 2 July 2012;[39] and the report of Dr Allan McKenzie dated 14 August 2014,[40] all of whom are members of the Reservoir Medical Group.
[37]Exhibit 3, page 33 PCB
[38]Exhibit 3, page 36 PCB
[39]Exhibit 3, page 40 PCB
[40]Exhibit 3, page 98.3 PCB
29 On 23 July 2008, the plaintiff consulted Dr L Hyde at the Reservoir Medical Group complaining of tingling and numbness in the right arm, with neck pain which came on at work “suddenly” when she turned her head.
30 Because of the suggestion of cervical nerve root irritation, the plaintiff underwent a CT scan of cervical spine on 24 July 2008,[41] which revealed no abnormality of that area.
[41]Exhibit 2, page 26 PCB
31 On 25 July 2008, the plaintiff reported that she had severe pain over the right shoulder region preventing normal use of that joint and tenderness of the scapular and acromioclavicular areas. Arrangements were made for the plaintiff to undergo an ultrasound of the right shoulder on 28 July 2008,[42] which revealed subacromial bursitis, and this was “the working diagnosis at that time” even though it did not fully explain all of her symptoms.
[42]Exhibit 2, page 27 PCB
32 On 11 August 2008, the plaintiff underwent an injection into the subacromial space of local anaesthetic and steroid which was performed under ultrasound guidance which gave some short-lived and minimal improvement.
33 The plaintiff was referred to the orthopaedic surgeon, Mr Robert J Howells, who arranged for the plaintiff to undergo an MRI scan of the right shoulder on 14 September 2008, which was suggestive of partial tears of the supraspinatus insertional fibres and probable impingement under the acromion and subacromial ligament. She was unable to work at that stage and was treated with analgesics and non-steroidal anti-inflammatory drugs. The plaintiff attempted to return to work in October 2008 but was forced to give up work again and had ongoing treatment by way of anticonvulsants and antidepressants.
34 On 8 December 2008, she underwent arthroscopic surgery performed by Mr Howells and such surgery revealed “possible inflammation in the shoulder”. The pain tended to be quite severe and uncontrolled but improved to some degree in early 2000 and she returned to work in various numbers of hours, being on and off work with various difficulties with her right shoulder thereafter.
35 I refer to the report of her present treating medical practitioner at the Reservoir Medical Group, Dr A McKenzie, who states:[43]
“Mrs McAleer attended myself on 30th of May 2014. She advised me that she was performing restricted duties at work but found that she had difficulty managing the Plastic Surgery Outpatient Clinic due to the heavy workload associated with this clinic.
She reported that she had felt depressed but that she had improved following psychological therapy elsewhere. She was provided with a workcover certificate to continue her current restrictions. She was prescribed a further supply of Oxynorm for her pain.
Marvelle was reviewed on the 17th of June 2014, 24th of June 2014, 25th of July 2014 and was provided with further analgesia and ongoing work certificates.
In my opinion Mrs McAleer’s condition is of a permanent nature and I do not believe she will be able to perform work duties in excess of her current restrictions in the future.”
[43]Exhibit 3, page 98.3 PCB
36 The plaintiff also relies on the reports of the orthopaedic surgeon, Mr Robert J Howells, dated 26 September 2008;[44] 18 November 2008;[45] 23 March 2009;[46] 30 November 2009;[47] 9 May 2013[48] and 11 August 2014.[49]
[44]Exhibit 3, page 61 PCB
[45]Exhibit 3, page 62 PCB
[46]Exhibit 3, page 63 PCB
[47]Exhibit 3, page 64 PCB
[48]Exhibit 3, page 67a PCB
[49]Exhibit 3, page 67d PCB
37 The plaintiff was referred to Mr Howells by Dr Howsam and initially consulted with him on 29 August 2008. At that time, she complained of the onset of pain in her right shoulder some four weeks previously following a sudden twisting incident to her head. She noted the immediate onset of pain in the right shoulder, together with numbness and tingling in the whole of the right arm extending down to the tips of the fingers.
38 The plaintiff explained that since then, she had undergone physiotherapy and a cortisone injection into the bursa of the right shoulder which had resulted in some improvement. At the time of examination, she was experiencing spasm-like pain around the shoulder girdle including the shoulder blade in the superior aspect of the shoulder. Such pain was described as being fairly constant but aggravated by certain arm movements and being present significantly at night. Furthermore, she reported ongoing continuing paresthesia type symptoms in the fingers.
39 In particular, she asserted she had no previous history of injury or trouble with that shoulder or neck and was otherwise fit and well.
40 Examination at the time of initial consultation revealed a mild stiffness with regard to the cervical spine, and specific examination of the right shoulder revealed no evidence of muscle wasting, tenderness in a number of locations including the acromioclavicular joint, anterior capsule, acromion and poster capsule but in particular over the medial border of the scapula. The shoulder had a slightly reduced range of movement in all directions with some end-range pain. There was also evidence of some impingement. Strength of the rotator cuff was good but there was pain on stressing the supra and infraspinatus portions of the rotator cuff.
41 At that time, Mr Howells considered the plaintiff’s mode of presentation to be “very unusual”, given the mechanism of injury, the pain distribution and the neurological involvement. He considered that while there may be some underlying structural pathology, there was probably a significant functional component to her symptoms and he wondered if she was developing a “Chronic Regional Pain-type Syndrome”.
42 Mr Howells arranged for the plaintiff to undergo an MRI scan on 14 September 2008,[50] which, according to Mr Howells, indicated some partial tearing of the supraspinatus tendon with indentation of this tendon by the acromion. Furthermore, there was evidence of some acromioclavicular joint degenerative disease, and these findings were consistent with an impingement condition of the right shoulder.
[50]Exhibit 2, page 29 PCB
43 Mr Howells explained to the plaintiff that although the “impingement” may explain some of her shoulder girdle pain, it was not the whole and sole cause of her trouble and, in this context, discussed the option of arthroscopic subacromial decompressive surgery to the shoulder.
44 On 17 November 2008, the plaintiff underwent an arthroscopic examination of the right shoulder. Mr Howells noted that glenoid humeral arthroscopy was essentially normal but on passing the arthroscope into the subacromial space, inflammatory subdeltoid bursal tissue was identified and resected. Furthermore, there was some fraying of the superior surface of the supraspinatus tendon and this was debrided. A moderately sized anteroinferior acromial prominence was identified and this was resected after release of the coracoacromial ligament. An osteophyte from the inferior surface of the distal clavicle was also resected.
45 Mr Howells describes the post-operative recovery was basically uneventful and she was discharged to the Ivanhoe Manor under the care of Dr Terence Lim for a rehabilitation program with particular reference to pain management.
46 Mr Howells reviewed the plaintiff initially on 5 January 2009, 30 January 2009, 2 April 2009 and 2 July 2009. During this period, there was some improvement in her pain and range of motion of the right shoulder. Mr Howells noted that she had been diagnosed with an intercurrent depressive illness which had been treated appropriately.
47 When seen on 2 July 2009, the plaintiff was experiencing some pain around the scapular region of the shoulder but overall, “her condition was much improved”. At that time, she was about to resume work, and had approximately 85 per cent normal range of movement, with some tenderness to palpation around the shoulder girdle.
48 At that stage, Mr Howells noted that he had treated the plaintiff for a subacromial impingement condition affecting her right shoulder but acknowledged that there may have been a cervical spine component to her trouble as well, together with a probable Chronic Pain Syndrome.
49 The plaintiff later consulted with Mr Howells on 7 September 2010 (on referral from Dr Margaret Howsam) and on 19 August 2013 (on referral from Dr Allan McKenzie).
50 When examined on 7 September 2010, the plaintiff complained of a recent flare up of shoulder pain following a lifting incident at work some four weeks previously. She continued to have residual neck and arm symptoms from her original incident in 2008 and she had been taking Lyrica throughout this period and had recently resumed the use of Panadeine Forte and Tramal for pain flare ups.
51 Examination of the right shoulder at that time revealed tenderness to palpation over a number of areas including the acromioclavicular joint, the acromion itself, but particularly over the thoracic border of the scapula and the trapezius. The right shoulder had slightly reduced active ranges of movement and there was no evidence of impingement clinically and the strength of the rotator cuff was satisfactory.
52 At that time, Mr Howells diagnosed an exacerbation of capsulitis and chronic pain condition affecting the plaintiff’s right shoulder. Mr Howells is of the opinion that the type of work that the plaintiff was undertaking at that time was appropriate and she should not go back to any type of work involving a significant amount of physical lifting or repetitive movement of her right arm. In particular, he noted that the plaintiff had experienced pain, suffering distress as a result of her right shoulder condition and although she had experienced an inter-current depressive illness, he was unsure as to whether this related to her shoulder condition.
53 When seen on 19 August 2013, the plaintiff gave a history that although she had been continuing to work at the premises of the defendant, she had ongoing “issues” with her right shoulder and arm consistent with an underlying chronic pain condition.
54 In particular, the plaintiff complained that four weeks previously, a patient had grabbed her arm, extending it backwards and since that time, she had noticed various sensations of the area of the shoulder joint.
55 Examination of the right shoulder at that time revealed mild generalised wasting in the scapular region and tenderness maximally over the acromioclavicular joint. There was also tenderness to palpation around the acromion, the lateral border of the scapula, and the shoulder had a moderately reduced range of movement in all directions. The distal clavicle did not appear to be unstable but an O’Brien’s test was positive. The strength of the rotator cuff was good.
56 In his report dated 11 August 2014, Mr Howells states, in part:[51]
“I felt that her problems were likely to be due to some mild subacromial impingement in the setting of an ongoing glenohumeral capsulitis and possibly some mild acromioclavicular pathology on a background of a chronic pain syndrome. I told her that I didn’t think further surgical management was likely to be helpful in this circumstance and that she should be guided by Dr. Lim and his pain management team with respect to medication and physical treatment that may be of assistance to her. …
…
I believe this lady has continued to experience ongoing capsulitis and [a] chronic pain condition as a result of her original injury back in July 2008. In May 2013 I believe she sustained a mild injury to her acromioclavicular joint which has caused the shoulder to flare up in terms of pain and because of these underlying conditions her shoulder has certainly been more vulnerable to aggravation by even minor injuries and as a consequence I believe this does relate substantially to original problems from 2008.”
[51]Exhibit 3, page 67e PCB
57 The plaintiff also relies on the reports of the consultant in rehabilitation and pain medicine, Dr Terence Lim, dated 16 October 2008 (two reports),[52] 30 October 2008,[53] 26 March 2009,[54] 27 July 2009,[55] 24 August 2009,[56] 8 October 2009,[57] 25 February 2010,[58] 22 June 2010,[59] 8 April 2014[60] and 18 November 2014.[61]
[52]Exhibit 3, pages 72 and 74 PCB
[53]Exhibit 3, page 75 PCB
[54]Exhibit 3, page 76 PCB
[55]Exhibit 3, page 77 PCB
[56]Exhibit 3, page 78 PCB
[57]Exhibit 3, page 84a PCB
[58]Exhibit 3, page 84b PCB
[59]Exhibit 3, page 84c PCB
[60]Exhibit 3, page 84d PCB
[61]Exhibit 3, page 84n PCB
58 Dr Lim holds the basic medical qualifications but also holds Fellowships in both the faculty of Rehabilitation Medicine of the Royal Australasian College of Physicians and the faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists. He advises that he has been specialising in the management of complex disability (including spinal cord injuries), involving chronic pain as his core speciality since 1992 and has developed various rehabilitation programs to address, amongst other things, chronic pain conditions.
59 Dr Lim initially consulted with the plaintiff on 16 October 2008. He notes at that time, the plaintiff was “demoralised/despondent” and also frustrated in regards to suffering persistent right shoulder pain (her dominant side) which had developed into a Regional Pain Syndrome, together with WorkCover’s lack of response to repeated requests for management of her right shoulder pain.
60 Dr Lim obtained a history that on 21 July 2008, the plaintiff turned her head and experienced severe pain affecting her head and neck which referred into her right shoulder and down her right arm. He notes that the CT scan of her neck was within normal limits and that an ultrasound of the right shoulder revealed subacromial bursitis and degenerative changes of the acromioclavicular joint.
61 Examination at that time revealed the plaintiff to be a “cooperative, anxious, obese woman” who had an asymmetric posture due to a depressed right shoulder when compared to the left. The plaintiff had a functional range of motion in her neck and both shoulders. Palpation revealed the presence of exquisitely tender muscular triggerpoints affecting the para-cervical/shoulder girdle muscles bilaterally, as a well as the right upper limb muscles, reflecting the development of central sensitisation. There was no evidence to conclude that she was suffering from CRPS or Complex Regional Pain Syndrome, previously known as RSD or Reflex Sympathetic Dystrophy.
62 Dr Lim diagnosed the plaintiff to be suffering a significant degree of central sensitisation and considered that her level of anxiety would be a “key factor” in the management of her medical condition.
63 In particular, he defined “central sensitisation” or central nervous system pain pathway sensitisation to be due to scientifically proven organic changes that occur in the pain pathways of the brain and spinal cord, as a consequence of suffering pain. He describes that this means that one’s pain threshold is effectively lowered following the development of central sensitisation and once it is well established, the pain suffered is not only prone to suffer chronic or persistent pain, but prone to experience spontaneous flares of increased pain, independent of any other factors or pathology.
64 Dr Lim also notes that currently, there are no medications and/or surgical procedures to cure central sensitisation or alleviate its debilitating effects. However, as chronic pain encourages the tendency to avoid this behaviour (avoiding normal functioning), which serves only to reinforce the neurophysiological and clinical consequences of central sensitisation, then normalising, as much as possible, one’s lifestyle can reverse some of these changes or at least reduce their influence.
65 Dr Lim considered that after the plaintiff underwent the shoulder surgery, she be referred to the North Eastern Rehabilitation Centre as an inpatient to commence a combined post shoulder surgery/pain rehabilitation program.
66 Dr Lim was of the opinion that the rehabilitation program hopefully would allow the plaintiff to gain better pain control through self-treatment management, reduced pain aggravating/perpetuating factors, incorporate gains into improved daily functioning and explore future vocational options as part of becoming meaningfully occupied again.
67 The plaintiff was also commenced on a trial of Lyrica aimed at reducing the amplification of pain due to current sensitisation. The plaintiff was transferred to the rehabilitation program as an inpatient from 12 November 2008 and discharged home on 12 December 2008 to continue as an outpatient.
68 When reviewed in mid-January 2009, Dr Lim found the plaintiff continued to have persistent severe pain which was treated by a combination of interventions from her rehabilitation team and medications including high doses of Lyrica and oral sustained-release opioids in the form of OxyContin.
69 Dr Lim was of the opinion that over the following months, the condition of the plaintiff improved and ultimately, she returned to graduated part-time work in August 2009. Dr Lim considered that the prognosis would allow the plaintiff to enjoy a return to function of her right shoulder that would allow her to perform ordinary daily tasks but would not be able to perform heavier duties as previously undertaken in nursing patients with spinal cord injury.
70 Over 2009, Dr Lim noted the plaintiff increasing her duties but in February 2010, the plaintiff was advised by The Austin that she could not continue her employment at the Victorian Spinal Cord Service.
71 The plaintiff was referred back to Dr Lim in April 2014. Dr Lim notes that he had not seen the plaintiff since December 2010. At the consultation in April 2014, the plaintiff gave a history that she had been doing “relatively well”, working 23 hours per week as the outpatient nurse at The Austin until mid-July, when she was guiding back to a chair and lost balance, which pulled on her right arm, causing pain exacerbation. Dr Lim noted that she had lost 55 kilograms as a result of utilising a gastric sleeve.
72 At that time, Dr Lim noted the plaintiff to have multiple exquisitely tender muscular triggerpoints distributed regionally and affecting the right para-cervical/shoulder girdle and upper limb muscles consistent with her previous history of being pain sensitised. Dr Lim referred her to a further pain rehabilitation program.
73 When reviewed on 23 September 2014, being the last week of the program, Dr Lim noted that the plaintiff’s pain levels were reducing and she was regaining control, not only of her pain, but also her life again.
74 In his report dated 18 November 2014,[62] Dr Lim confirmed that the plaintiff continued to suffer from chronic and persistent right shoulder pain due to the development of a central sensitisation initiated by the injury in 2008 which had been exacerbated by various activities at work since then. In particular, Dr Lim stated:
“… Mrs McAleer has developed a significant degree of central sensitisation as described above. As a result of central sensitisation, she will suffer chronic or long term pain which she has been taught how to and will need to continue to self-treat and self-manage as her own pain therapist/pain manager with the aforementioned goals, as once established as in Mrs McAleer’s case, there is unfortunately no cure option to central sensitisation and thus, no pain cure to her chronic pain condition.
What this does mean is that Mrs McAleer will have a reduced functional capacity in the long term, reflective of her centrally-sensitised, lowered pain threshold and does have to, if she wants to remain with pain control and still be functional, stick to the lessons learnt during her attendance at the NERC pain rehabilitation program.”[63]
[62]Exhibit 3, page 84n PCB
[63](op cit) page 94t PCB
75 The plaintiff also relies on the reports of the psychiatrist, Dr Bethany Whitehouse, dated 12 March 2009,[64] 8 April 2009[65] and 31 May 2009.[66] Dr Whitehouse commenced to treat the plaintiff in March 2009 during her inpatient stay at the North Eastern Rehabilitation Centre following the right shoulder surgery.
[64]Exhibit 3, page 85 PCB
[65]Exhibit 3, page 86 PCB
[66]Exhibit 3, page 87 PCB
76 At that time, Dr Whitehouse considered the plaintiff to be suffering depression and anxiety which was brought about by the injury and her attempts to completely rehabilitate herself.
77 The plaintiff also relies on reports from the psychiatrist, Dr Kerry Mack, dated 17 June 2009[67] and 17 June 2010.[68] The plaintiff was referred to Dr Mack by her former psychiatrist, Dr Whitehouse, and commenced treating the plaintiff on 9 June 2009. Dr Mack notes that Dr Whitehouse diagnosed a major depressive illness and treated her with Duloxetine and later, Quetiapine was added (March 2009) due to ongoing anxiety and sleeplessness.
[67]Exhibit 3, page 68 PCB
[68]Exhibit 3, page 70 PCB
78 In her report dated 17 June 2010, Dr Mack notes that the plaintiff has made a “good recovery” and that her prognosis was “good”. She also noted that she was continuing to consult with the plaintiff approximately monthly and anticipated this would be ongoing for perhaps another year to supply ongoing supportive therapy.
79 The plaintiff also relies on a questionnaire completed by her then treating psychologist, Ms Jenny Fahey, on 5 June 2009.[69] In that questionnaire, Ms Fahey records her diagnosis to be a Major Depressive Disorder with Chronic Pain Disorder (associated with both psychological factors and a general medical condition). In particular, she noted that the plaintiff had severe anxiety and depression in the context of persisting pain and attempting to increase her hours of work.
[69]Exhibit 3, page 88 PCB
The medico-legal reports relied on by the Plaintiff
80 The plaintiff was medico-legally examined by the following specialists:
(a) The orthopaedic surgeon, Mr Kevin F King, on 15 July 2010[70] and on 8 April 2014;[71] and
(b) The consultant psychiatrist, Dr Albert L Kaplan, on 4 October 2010[72] and on 28 January 2014.[73]
[70]See report of same date, exhibit 4, page 99 DCB
[71]See report of same date, exhibit 4, page 106a DCB
[72]See report dated 11 October 2010, exhibit 4, page 107 DCB
[73]See report dated 29 January 2014, exhibit 4, page 114a DCB
81 After his first examination, Mr King was of the opinion that the plaintiff had suffered:
“… an acute injury to one or more of her cervical discs and associated ligamentous structures at that time, presumably with a small but definite disc protrusion involving almost certainly the C6 and C7 nerve roots resulting in the immediate onset of severe right brachial neuralgia – associated with tingling and numbness in the little, ring and middle fingers.”[74]
[74]See exhibit 4, page 104 DCB
82 Furthermore, Mr King also considered that the plaintiff had suffered an injury to the rotator cuff ligaments and tendons around the right shoulder, giving rise to a localised rotator cuff injury in the right shoulder.
83 When later seen, Mr King obtained a history that the plaintiff had noted some aching discomfort in the left shoulder but there was no particular associated injury. Mr King was of the same clinical opinion as expressed in his first report, but did note that there had been some worsening of the shoulder symptoms based on his examination. In particular, Mr King noted he found no evidence of exaggeration or evidence of any significant psychological overlay.
84 After his first examination, Dr Kaplan was of the opinion the plaintiff had suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood which was related to her original injury, chronic pain and the physical limitations imposed upon her by such pain. In particular, Dr Kaplan stated:
“Mr prognosis of Mrs. McAleer’s psychiatric condition will be determined by the outcome of her physical condition, and she is likely to remain prone to depression and anxiety as long as her pain persists and as long as she is unable to resume her normal active lifestyle and her normal nursing duties. If her physical condition deteriorates with the passage of time and/or if she is forced to cease work, her depression is likely to intensify.
There appears to be no suggestion in the opinions expressed in the attached medical reports that Mrs. McAleer’s chronic pain is non-organic in origin. … .”[75]
[75]See exhibit 4, page 113 DCB
85 When last seen, Dr Kaplan was of the opinion that the plaintiff continued to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and that her condition had not improved since his last examination. Again, Dr Kaplan noted that there appeared to be a “consensus” in the opinions expressed in the attached medical reports that the plaintiff’s pain was organically based and accordingly, on the basis of these opinions, he considered it likely that her pain and loss of earning capacity were related to organic factors.
The medical evidence relied on by the Defendant
86 The defendant arranged for the plaintiff to be medico-legally examined by the following specialists:
(a) The consultant occupational physician, Dr Phillip Mutton, on 5 March 2009;[76]
[76]See report dated 24 March 2009 and supplementary report dated 3 April 2009, exhibit A, pages 1 and 9 DCB
(b) The occupational physician, Dr Ralph Poppenbeek, on 17 December 2009;[77]
[77]See report dated 18 December 2009, exhibit A, page 11 DCB
(c) The occupational physician, Dr James Rowe, on 27 July 2010;[78]
[78]See report of same date, exhibit A, page 19 DCB
(d) The consultant psychiatrist, Mr Terry Chong, on 8 February 2011[79] and on 15 March 2013;[80]
[79]See report dated 17 February 2011, exhibit A, page 25 DCB
[80]See report dated 21 March 2013, exhibit A, page 34 DCB
(e) The orthopaedic surgeon, Mr Garry Grossbard, on 15 February 2011;[81]
[81]See report dated 18 February 2011, exhibit A, page 40 DCB
(f) The orthopaedic surgeon, Mr Rodney Simm, on 6 December 2011,[82] 16 April 2013,[83] 15 July 2014[84] and on 25 November 2014;[85]
[82]See report dated 9 December 2011, exhibit A, page 48 DCB
[83]See report of same date, exhibit A, page 54A DCB
[84]See report dated 16 July 2014, exhibit A, page 54(f)(i) DCB, together with supplementary report dated 13 August 2014, exhibit A, page 54(f)(x) DCB
[85]See report of same date, exhibit A, page 54(f)(xii) DCB, together with supplementary report dated 3 December 2014, exhibit A, page 54(f)(xvii) DCB
(g) The psychiatrist, Dr John Douglas, on 8 October 2013;[86] and
(h) The occupational physician, Dr Chris Baker, on 30 October 2013.[87]
[86]See report of same date, exhibit A, page 54(g) DCB, together with supplementary report dated 15 October 2013, exhibit A, page 54(s) DCB
[87]See report of same date, exhibit A, page 54(u) DCB, together with supplementary reports dated 29 November 2013 and 17 February 2014, exhibit A, pages 54(z)-54(dd) DCB
87 At the time of his examination, Dr Mutton formed the opinion that the plaintiff presented with “significant problems” and experienced significant pain symptoms, reduced cervical range of movement and reduced right shoulder function. In particular, he considered she suffers significant psychological symptoms and that there were significant psychosocial behaviours on presentation.
88 Dr Poppenbeek examined the plaintiff in December 2009 (some six months after the examination by Dr Mutton) and considered that after his examination, that the plaintiff may have suffered a pinch C7 nerve root on the right side of her neck, giving rise to some neck symptoms, together with right shoulder bursitis with probable capsular tear and impingement which had been surgically treated. He did note that the above conditions had been overtaken by “a substantial Chronic Pain Syndrome, with Mixed Anxiety and Depressive features”, although he considered this condition also had substantially improved.
89 When seen by Dr Rowe in July 2010, the plaintiff had returned to work and was then working about 20 hours a week and sometimes more. Although describing the symptoms, and the restrictions suffered by the plaintiff, Dr Rowe, seemingly, does not make any express diagnosis of any condition.
90 Dr Chong initially examined the plaintiff in February 2011 and diagnosed her to be suffering Major Depression, in partial remission. He considered that employment with the defendant was a “significant contributing factor” to her mental condition, and in particular, the chronic pain that she suffered as a result of her “right shoulder injury”. Notwithstanding the diagnosis, he considered her to be psychiatrically fit to work in her current duties for approximately 20 hours a week.
91 When later seen in March 2013, Dr Chong was of the opinion that the plaintiff’s “mental condition” had not changed since his last examination. Dr Chong noted that the plaintiff was “very depressed” in early 2012. He also noted that the plaintiff underwent a partial gastrectomy to lose weight, on 23 August 2012, and as a result of this surgery, had reduced her weight from 158 kilograms to 113 kilograms. Dr Chong considered that the plaintiff was “psychiatrically fit” to continue in her current duties with the defendant.
92 Mr Grossbard made an examination of the plaintiff on 15 February 2011 (prior to her losing weight), and when queried as to diagnosis, states:
“This is the most relevant question. I am uncertain as to the diagnosis but my feeling based on the history and examination is the pain is most likely arising from the cervical spine. The radiology however does not localise an area of pathology. I would therefore suggest the radiology of the cervical spine be repeated some three years after the event.”[88]
[88]Exhibit A, page 44 DCB
93 As I have recorded, the orthopaedic surgeon, Mr Rodney Simm, examined the plaintiff on behalf of the defendant on 6 December 2011; 16 April 2013; 15 July 2014 and on 25 November 2014. Counsel for the defendant put some emphasis on the opinions expressed by Mr Simm – not least in part because Mr Simm has seen the plaintiff on a number of occasions over the last few years.
94 When initially examined, Mr Simm notes that the plaintiff presented as a cooperative person who was extremely overweight and who demonstrated overt pain signs on physical examination.
95 Movements of the cervical spine were restricted in all planes, and all movement was associated with complaint of pain and there was painful restriction of movement of the right shoulder.
96 After examination of the plaintiff, and having access to various radiological materials, Mr Simm concluded:
(a) There were no specific signs of an intrinsic condition of the right shoulder;
(b) The MRI scan of the cervical spine showed minimal degenerative changes commonly seen and not predictive of pain. Mr Simm diagnosed Chronic Pain Syndrome and noted that Dr Lim established this diagnosis in 2008, prior to undergoing the failed surgical procedure on her right shoulder in November 2008.
97 Mr Simm was of the view that the plaintiff suffered an established pattern of symptoms which had been present for over three years and will persist indefinitely into the future, requiring treatment for a Chronic Pain Syndrome. In particular, Mr Simm was of the opinion that the plaintiff did not have any identifiable physical orthopaedic condition requiring treatment although, she may have a need for psychiatric treatment (to be determined by a psychiatrist).
98 When seen on the second occasion, Mr Simm noted the plaintiff had lost 49 kilograms of weight due to surgery but his diagnosis continued to be a Chronic Pain Syndrome, and that continues to limit her capacity for work. In particular, Mr Simm expressed his disagreement with the opinions expressed by Mr K King, save and except that some of the symptoms experienced by the plaintiff were suggestive of cervical disc pathology and that there may be “some underlying physical pathology still causing some residual symptoms”. However, Mr Simm notes that the severity of the pain, the constant nature of the pain, and her clinical course over a period of almost five years, indicates that the physical condition has “been largely if not completely overtaken by a chronic adverse pain response”.
99 When seen on 15 July 2014, Mr Simm noted that the distribution of the plaintiff’s pain remained unchanged from his last examination. The plaintiff did give a history of an incident on 11 July 2013 when she wrenched her right arm backwards, causing her “severe pain” in the right shoulder. At that time, she was off work for six weeks. Mr Simm continued to make a diagnosis of a Chronic Pain Syndrome which he considered to be “entrenched”, initiated by the onset of acute and apparently severe pain at work on 21 July 2008.
100 In a supplementary report dated 11 August 2014, Mr Simm notes that as an orthopaedic surgeon he is “not able to respond with a specialist’s opinion as to whether or not a Chronic Pain Syndrome has an organic basis”; however, Mr Simm goes on to state:
“… A chronic pain syndrome is commonly triggered by a physical injury, but when the diagnosis of chronic pain syndrome is made it implies the pain and disability can no longer be explained on the basis that physical injury, and therefore factors such as pain sensitisation, non-organic and/or psychological factors are the cause of the problem. I think it is a commonly accepted belief that a true pain syndrome is associated with some demonstrable physical changes on areas of the MRI scan of the brain; however this is well beyond my field of orthopaedics and would need to be confirmed by a specialist in the management of chronic pain.”[89]
[89]See Exhibit A, page 54(F)(ix) DCB
101 After his last examination on 25 November 2014, Mr Simm notes that there has been no significant change in the plaintiff’s condition since the last examination.
102 In his reported dated 3 December 2014, Mr Simm states:
“I have read the enclosed reports from Dr Lim dated 16 November 2014 and 18 November 2014. As a Pain Management Specialist Dr Lim focuses on what he sees to be the diagnosis, which is chronic pain with a significant contribution from the development of central sensitisation. He talks about lowering of the pain threshold so that pain can be experienced at physical levels less than injury, such as performing the usual activities of daily living, and this pain ‘can then be amplified out of all proportion’. He also refers to ‘spontaneous generation of pain’ and qualifies that further by saying that pain can be generated not by injury but by the pain system itself.
Dr Lim confirms my impression that the problem in this case is either completely or largely outside the field of routine orthopaedics and is now very much in the field of chronic pain. Whilst Dr Lim may be able to explain her clinical course on the basis of the theories of chronic pain, in this case a chronic pain syndrome cannot be verified by any objective means and the diagnosis is based entirely on the subjective reporting of symptoms and the subjective clinical signs presented. Dr Lim does not seem to find it necessary to include in his report any discussion on a possible underlying physical cause and seems happy to ascribe her clinical course to the chronic pain condition.”[90]
[90]See exhibit A, page 54F(xvii) DCB
103 The psychiatrist, Dr Douglas, considered the plaintiff to be suffering an Adjustment Disorder with Mixed Anxiety and Depression when he examined her in October 2013. He explained this to be an “adjustment” to the pain and disability that she suffers in her right shoulder as a result of the compensable injury. Furthermore, although he describes her psychiatric symptoms as significant, they, in themselves, would “not prevent her returning to her pre-injury duties. Her return to her pre-injury duties is affected by her continuing shoulder problem”.[91]
[91]Exhibit A, page 54(n) DCB
104 When the occupational physician, Dr Chris Baker, examined the plaintiff on 30 October 2013, it was in relation to the further “injury” on 11 July 2013 when she wrenched her right shoulder.
105 After obtaining a history and making an examination, Dr Baker was of the opinion that the plaintiff suffered “a strain injury to her right acromioclavicular joint” and also aggravated the chronic pain condition she was suffering in the right shoulder area. He notes that the plaintiff had a pre-existing “chronic pain problem” associated with the right shoulder before the incident in July 2013.
Analysis of the evidence
106 After a consideration of all of the evidence and in particular, after observing the plaintiff give her evidence and being cross-examined, I find her to be an impressive witness and who, at all times, was attempting to give accurate and honest answers to all questions posed to her. Counsel for the defendant accepted, appropriately in my view, that the credit of the plaintiff was not an issue.[92]
[92]T60, L4-8
107 Furthermore, as I have already recorded, the defendant also accepts that the plaintiff suffered a compensable injury on or about 21 July 2008, being an aggravation of either a mild right shoulder problem, or, alternatively, a mild cervical problem.
108 Although no doctor was called to give evidence, each party relied on a large number of medical reports running over the years from 2008 to date. A perusal of those reports would suggest that there is support for the plaintiff suffering a compensable injury to her neck and/or her right shoulder. For example I refer to the following evidence:
(a) The reports of the treating orthopaedic surgeon, Mr Robert Howells, who ultimately considered the plaintiff to be suffering ongoing capsulitis of the right shoulder and a chronic pain condition as a result of the compensable injury in July 2008;
(b) The medico-legal orthopaedic specialist, Mr King, diagnosed the plaintiff to be suffering an “acute injury to one or more of her cervical discs and associated ligamentous structures” involving “almost certainly” the C6 and C7 nerve roots, resulting in an immediate onset of severe right brachial neuralgia. Furthermore, Mr King considered that the plaintiff had also suffered injury to the rotator cuff ligaments and tendons around the right shoulder;
(c) The orthopaedic surgeon, Mr Grossbard, who examined the plaintiff on behalf of the defendant, opined that although he was “uncertain” as to diagnosis, he considered that the plaintiff’s pain most likely arose from the cervical spine;
(d) Mr Simm, over a number of examinations, considered that there was no intrinsic injury to the right shoulder but considered that there may be “some underlying physical pathology still causing residual symptoms” in the cervical spine.
109 Ultimately, I consider that it is not that material to establish the precise source of the initial pain (whether it be her neck or right shoulder), save to say that the initial “injury” was of an organic nature which gave rise to pain symptoms. I accept that since the compensable injury, the plaintiff has suffered the pain that she describes. In this respect, I note that counsel for the defendant again, quite fairly, stated to the Court that there was no reason to doubt the plaintiff suffering such pain.
110 The initial issue becomes whether the present pain suffered by the plaintiff is generated by an organic cause and thus falls within paragraph (a) of s134AB(37) of the Act which defines “serious injury”, or is generated by psychological or psychiatric matters and thus would fall within paragraph (c) of that subsection. In his submissions, counsel for the defendant referred me to the Court of Appeal decision of Papamanos v Commonwealth Bank of Australia[93] and in particular, to paragraphs 20 and 21 of that decision, wherein Hansen JA, Beach JA and Garde AJA stated:
“In her application before the judge the appellant took on the burden of attempting to establish that she had sustained a physical injury, the consequences of which could be fairly described as being ‘more than significant or marked, and as being at least very considerable’. She also took on the burden of attempting to establish that she had sustained a mental or behavioural disturbance or disorder, the consequences of which could fairly be described as being ‘more than serious to the extent of being severe’.5
In considering the appellant’s application based upon physical consequences (the para (a) part of the appellant’s application), the Court was required to disregard any psychological or psychiatric consequences of the appellant’s alleged physical injury. Similarly, in considering the appellant’s application based upon an alleged mental or behavioural disturbance or disorder (the para (c) part of the appellant’s application), the Court was required to disregard any physical consequences of the mental or behavioural disturbance or disorder. In the circumstances, the application before the judge raised the question of whether it was necessary (and if so then to what extent it was necessary) to disentangle physically based consequences from psychologically based consequences.”[94]
[93]Op cit
[94]Papamanos v Commonwealth Bank of Australia (op cit) at paragraphs [20]-[21]
111 The Court of Appeal also referred to Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis;[95] Jayatilake v Toyota Motor Corporation Australia Ltd;[96] Meadows v Lichmore Pty Ltd[97] and Peak Engineering & Anor v McKenzie,[98] all of which dealt with relevant principles for the disentanglement of physically-based consequences from psychiatrically-based consequences.
[95](2007) 15 VR 649
[96](2008) 20 VR 605 at paragraphs [24]-[29]
[97][2013] VSCA 201 at paragraphs [19]-[22]
[98][2014] VSCA 67
112 Counsel for the defendant referred me to the decision of Meadows, wherein Maxwell ACJ (with whom Robson and Dixon AJA agreed) described a so-called “two-step” process in “disentanglement matters”. In particular, he stated:
“… 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.
If, 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.”[99]
[99]Meadows v Lichmore Pty Ltd (op cit) at paragraphs [21]-[22]
113 After a consideration of all of the evidence, I accept the opinion of Dr Lim that, as a result of the plaintiff initially suffering pain, she has developed a sensitisation of the central nervous system pain pathway. As I have recorded, Dr Lim describes this to mean that one’s pain threshold is effectively lowered following the development of central sensitisation and once it is well established, the pain suffered is not only prone to be chronic and persistent pain, but also prone to experience spontaneous flare-ups of increased pain independent of any other factors or pathology. Dr Lim expressly states that such “sensitisation” is due to scientifically-proven organic changes that occur in the pain pathways of the brain and spinal cord as a consequence of suffering pain.
114 Based on the opinion of Dr Lim, I find that there is a substantial organic basis for the pain and suffering consequences relied on by the plaintiff. I make such finding in the knowledge that the plaintiff, although not attending a psychiatrist for at least four years, continues to consult a psychologist (Ms Rosa Iacovno) on approximately a monthly basis.[100] I am also conscious that the plaintiff continues to take 120 milligrams of Cymbalta for what she describes as her “depression”. However, it must be noted that as at June 2010, Dr Mack (the psychiatrist who continued treatment after Dr Whitehouse) was of the opinion that the plaintiff had made a good recovery at that time and her prognosis was good.
[100]No report was before me from Ms Iacovno
115 Also, Dr Chong, when he examined the plaintiff in February 2011, and later in March 2013, considered that although the plaintiff had been suffering Major Depression, she was in partial remission and was psychiatrically fit to continue her current duties with the defendant.
116 When seen by the psychiatrist, Dr Douglas, in October 2014, he considered the plaintiff to have some Mixed Anxiety and Depression which he considered to be an “adjustment” to the pain and disability that she suffers in her right shoulder.
117 I accept the opinion of Dr Lim, for the following reasons:
(a) Dr Lim has treated the plaintiff on and off since October 2008 (prior to her arthroscopic surgery on 17 November 2008) to date. During that time, he has arranged for her to have two periods of inpatient treatment for pain management. He has also varied the type of drugs that she has taken over this period of time;
(b) Dr Lim is seemingly a highly qualified and experienced pain management specialist. His opinions are not directly challenged by any of the medical evidence relied on by the defendant although it is clear that many of the defendant’s doctors – in particular, Mr Simm – although accepting of the plaintiff’s complaints, finds little orthopaedic basis for such complaints. The matter is made more complex when the term “Chronic Pain Syndrome” is routinely used in the sense described by Mr Simm when he states:
“…A chronic pain syndrome is commonly triggered by a physical injury, but when the diagnosis of chronic pain syndrome is made it implies the pain and disability can no longer be explained on the basis that physical injury, and therefore factors such as pain sensitisation, non-organic and/or psychological factors are the cause of the problem. I think it is a commonly accepted belief that a true pain syndrome is associated with some demonstrable physical changes on areas of the MRI scan of the brain; however this is well beyond my field of orthopaedics and would need to be confirmed by a specialist in the management of chronic pain.”[101]
[101]See Exhibit A, page 54(F)(ix) DCB
Although a reading of Mr Simms’ reports – particularly his latter reports – might suggest that he is somewhat sceptical about a diagnosis of a Regional Pain Syndrome (as diagnosed by Dr Lim) not verifiable by any objective means, he clearly concedes that pain management per se is outside the expertise of an orthopaedic surgeon;
(c) The consistency of the plaintiff’s complaints of pain in the areas of her right neck and right shoulder. In my opinion, the reportage would suggest a degree of consistency about such complaint compared to nebulous complaints of pain perhaps more consistent with psychological factors.
118 Accordingly, given the period of treatment by Dr Lim, his expertise and experience in the area, and the consistency of complaint more likely supporting the view of Dr Lim, I prefer his opinion to the other opinions before me. It is also to be stressed, there was no expert opinion challenging Dr Lim either as to his opinion in relation to pain sensitisation generally, or the diagnosis of Dr Lim based on such area of medicine.
119 Furthermore, based on the opinion of Dr Lim, I consider such consequences to be long term, consistent with the ongoing experience of pain by the plaintiff.
120 The next issue is whether such organic consequences satisfy the narrative test. As I have already recorded in this judgment, the question whether an injury satisfies the definition of “serious injury” is largely a question of impression and value judgment.
121 Counsel for the defendant, leaving aside whether any pain suffered by the plaintiff was organically or psychologically-generated, stressed the following matters:
(a) The plaintiff presently performs nine hours of work on Monday, eight hours on a Thursday and five hours on a Friday. Such hours were not chosen by the plaintiff but allocated to her. Although such work does not involve the type of work she was performing prior to injury – which involved the care of paraplegic and quadriplegic patients, she accepted that her present employment was “intellectually challenging” and “interesting”;
(b) Although only working approximately 22 hours a week, she was only working part time prior to the injury. Furthermore, she has demonstrated this capacity for part-time work for some years now and considers that she will be able to continue to do such work;
(c) That she is a mother with three sons and life “is fairly busy” with work and maintaining a household for her family. She continues to socialise with family and friends and that she helps out with her sons’ sporting teams, although she has had to “downgrade” her involvement to some extent as she is unable to participate fully in the coaching of junior basketball;
(d) Although her weight increased after the injury, she was contemplating having stomach surgery prior to that date and probably would have had it notwithstanding the occurrence of the injury; (which I accept)
(e) She performs some household chores but is dependent upon her husband and sons to assist with the performance of others.
122 Against that, it was submitted by counsel for the plaintiff, that the major consequence suffered by the plaintiff is the ongoing and unremitting pain suffered by her, requiring large doses of medication. In this respect, I do accept that the plaintiff takes 600 milligrams of Lyrica daily (300 milligrams in the morning and in the evening); 120 milligrams of Cymbalta to treat her depression; 25 milligrams of Seroquel (one or two tablets a day) and 5 milligrams of OxyNorm when required (generally twice a week and occasionally three times a week).
123 I refer to the following Court of Appeal decisions:
(a) Stijepic v One Force Group Aust Pty Ltd,[102] wherein the Court of Appeal (consisting of Ashley JA and Beach AJA) commenting on the decision of Sumbul v Melbourne All Toya Wreckers Pty Ltd,[103] stated:
[102][2009] VSCA 181
[103][2006] VSCA 292
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”[104]
[104]Stijepic v One Force Group Aust Pty Ltd (op cit) at paragraph [47]
(b) Haden Engineering Pty Ltd v McKinnon,[105] wherein the Court of Appeal (Maxwell P, Buchanan and Nettle JJA) stated that the interpretation of “pain and suffering consequences” of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. Part of that process is for the Court to assess the intensity of pain which the plaintiff experiences, together with frequency and duration of pain episodes.
[105](2010) 31 VR 1
The Court of Appeal made reference to the Court of Appeal decision in Dwyer v Calco Timbers Pty Ltd (No 2),[106] and thereafter stated:
[106][2008] VSCA 260
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.”[107]
[107]Haden Engineering Pty Ltd v McKinnon (op cit) at paragraph [14]
(c) Sutton v Laminex Group Pty Ltd,[108] wherein Tate JJA (with whom Ashley and Hargrave AJA agreed), stated:
“’The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence’.”[109]
[108](2011) 31 VR 100
[109](Op cit) at paragraph [91]
124 I also accept that the pain interferes with her sleeping. When she rolls onto her right side, she experiences greater pain, causing her to wake and interfere with her sleep. Given the opinion of Dr Lim, I see no reason why such a situation will not continue into the foreseeable future.
Conclusion
125 After a consideration of all of the evidence, I consider that the major consequence that the plaintiff has suffered as a result of her compensable injury is the advent of unremitting chronic pain which impacts on her activities of daily living and the movement of her shoulder and neck. In particular, such pain impacts on her ability to sleep and again, based on the opinion of Dr Lim, this is going to be of a permanent nature.
126 In all the circumstances, I find that the plaintiff has satisfied the narrative test and accordingly, I order that pursuant to s134AB(16)(b) of the Act, the plaintiff have leave to bring a common law claim for pain and suffering damages in respect of her neck/right shoulder injury.
127 I will hear the parties on the question of costs.
Annexure A
1The plaintiff tendered the following material:
Exhibit 1
· Affidavit of plaintiff sworn 17 May 2011
· Further Affidavit of plaintiff sworn 9 May 2012
· Further Affidavit of plaintiff sworn 31 May 2013
· Further Affidavit of plaintiff sworn 8 April 2014
· Further Affidavit of plaintiff sworn 22 July 2014.
(All such material found at pages 12–25c of the Plaintiff’s Court Book (“PCB”))
Exhibit 2
· CT scan of the cervical spine dated 24 July 2008
· Right shoulder ultrasound dated 28 July 2008
· Guided injection into the right shoulder dated 11 August 2008
· MRI scan of the right shoulder dated 14 September 2008
· MRI scan of the cervical spine dated 27 October 2008
· Right shoulder ultrasound dated 15 May 2012
· MRI scan of the cervical and thoracic spine dated 22 March 2011
· Right shoulder ultrasound dated 11 July 2013
· X‑ray of the right shoulder dated 11 July 2013.
(All such documents found at pages 26–32b PCB)
Exhibit 3
· Medical reports of Dr Margaret Howsam, undated and dated 2 September 2008
· Medical report of Dr Brett Hunt dated 2 July 2012
· Medical reports of Mr Robert Howells dated 26 September 2008, 18 November 2008, 23 March 2009, 30 November 2009, 9 May 2013 and 11 August 2014
· Operation report of Mr Robert Howells dated 17 November 2008
· Medical reports of Dr Kerry Mack dated 17 June 2009 and 17 June 2010
· Medical reports of Dr Terence Lim dated 16 October 2008, 30 October 2008, 26 March 2009, 27 July 2009, 24 August 2009, 8 October 2009, 25 February 2010, 22 June 2010, 8 April 2014, 16 November 2014 and 18 November 2014
· Letter of instruction to Dr Terence Lim dated 25 August 2014
· Medical reports of Dr Bethany Whitehouse dated 12 March 2009, 8 April 2009 and 31 May 2009
· Psychological questionnaire of Ms Jennifer Fahey dated 5 June 2009
· Medical report of Ms Janneane Connelly dated 17 November 2008
· Medical reports of Mr Slav Pozega dated 25 November 2008, 27 November 2008 and 2 December 2008
· Medical report of Dr Simon Lam to Dr Lindsey Hyde dated 25 January 2013
· Medical report of Dr J McKenzie dated 14 August 2014.
(All such reports found at pages 33–98.3 PCB)
Exhibit 4
· Medical reports of Mr Kevin F King dated 15 July 2010 and 8 April 2014
· Psychiatric reports of Dr Albert L Kaplan dated 11 October 2010 and 29 January 2014.
(All such reports found at pages 99–114e PCB)
2The defendant tendered the following material:
Exhibit A
· Medical reports of Dr Phillip Mutton dated 24 March 2009 and 3 April 2009
· Medical report of Dr Ralph Poppenbeek dated 18 December 2009
· Medical report of Dr James Rowe dated 27 July 2010
· Psychiatric reports of Mr Terry Chong dated 17 February 2011 and 21 March 2013
· Medical report of Mr Garry Grossbard dated 18 February 2011
· Medical reports of Mr Rodney Simm dated 9 December 2011, 16 April 2013, 16 July 2014, 11 August 2014, 13 August 2014, 25 November 2014 and 3 December 2014
· Psychiatric reports of Dr John Douglas dated 8 October 2013 and 15 October 2013
· Medical reports of Dr Chris Baker dated 30 October 2013, 29 November 2013 and 17 February 2014.
(All such reports found at pages 1–54(dd) of the Defendant’s Court Book (“DCB”))
Exhibit B
· Clinical notes of Dr Howsam and in particular, the note dated 9 January 2008 at page 92
(Such general notes are found at pages 63–100 DCB).
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