McKie, Vera v Southern Health and VWA

[2010] VCC 118

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST

SERIOUS INJURY APPLICATION DIVISION

Case No. CI-09-02788

VERA McKIE	Plaintiff
v
SOUTHERN HEALTH	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 February 2010
DATE OF JUDGMENT:	5 March 2010
CASE MAY BE CITED AS:	McKie, Vera v Southern Health & VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 0118

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, Section 134AB(38)(a) and (b) – left non-dominant limb – pain and suffering only – relevant principles.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Purcell	Ryan Carlisle Thomas
For the Defendants	Mr B McKenzie	Hall & Wilcox
HIS HONOUR:

Introduction

1 By way of Originating Motion filed 22 June 2009, Vera McKie (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to her left shoulder suffered by her on or about 6 February 2003 (“the injury”) arising out of or in the course of her employment with Southern Health (“the first defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.

3          The plaintiff was represented by Mr D Purcell of counsel, and the defendants were represented by Mr B McKenzie of counsel. The hearing extended over two days, and the following evidence was adduced:

(a)	the plaintiff gave viva voce evidence and was cross-examined;
(b)	the plaintiff tendered the following evidence:

(i)    pages 24–72 of the Plaintiff’s Court Book (“Exhibit A”);

(ii)   a bundle of letters from Dr Ken Ewen dated 18 June 2003, 7 July 2003 and 25 August 2003 (“Exhibit B”);

(c) the defendants tendered pages 1–7, 12–22 and 24 of the Defendants’ Court Book (“Exhibit 1”).

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 s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).

5          The plaintiff relies on paragraph (a) of the definition of “serious injury”, which reads:

“serious injury means—

(a) permanent serious impairment or loss of a body function ...”

The part of the body said to be impaired is the left shoulder: (see T5, L22-24).

6          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by her arose out of or in the course of her employment with the first defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resultant impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” of the impairment of the left shoulder in relation to “pain and suffering” are, “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”: (see s.134AB(38)(a) and (b) of the Act). The test is sometimes referred to as the “narrative test”.

7          In determining the application, the Court:

(a)	must not take into account psychological or psychiatric consequences of “the injury” which can be taken into account only for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)	notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]);
(d)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in doing so disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]).

The Issues

8          In his opening comments, counsel for the defendants stated that there was no issue that the plaintiff suffered an injury to her left shoulder, which gave rise to impairment and some organic consequences. The “issue” was whether the consequences suffered by the plaintiff in relation to her left shoulder impairment were “serious” within the meaning of the narrative test: (see T14, L30 – T15, L10).

The Background of the Plaintiff and “the Injury”

9          The plaintiff is a fifty-four year old (born 19 July 1955) married woman with three adult children. She presently has two grandchildren, aged six and five months.

10        The plaintiff is naturally right-hand dominant.

11        She attended school to Year 9 and thereafter completed a short business course and later worked at Waltons as a vault clerk for twelve months. After marrying she remained at home for a “few years” raising her children.

12        On returning to work she was employed by a pharmaceutical company, R P Shearer, after which she completed a PCA (Personal Care Assistant) course for geriatric care and at the same time, also worked as a personal care attendant in a nursing home. Later, when working at the nursing home, the plaintiff enrolled at Swinburne University and qualified as a Division II Nurse.

13        The plaintiff commenced employment with the first defendant in February 2001. The evidence is somewhat unclear as to whether she commenced such employment as a Division II Nurse or as a Division I Nurse, after having completed her Bachelor of Nursing at Monash University: (see page 25 of Exhibit A which would suggest the degree was finished in December 2001; compare T42 L25–28).

14        In any event, the plaintiff commenced performing general nursing work with the first defendant, and during such time completed further study as a critical care nurse. On 2 February 2002, she commenced work as an intensive care nurse in the Intensive Care Unit.

15        The Court refers to the affidavits sworn by the plaintiff on 2 March 2009 (at page 24 of Exhibit A and hereafter referred to as “the first affidavit”) and on 29 January 2010 (at page 34 of Exhibit A and hereafter referred to as “the second affidavit”).

16        I refer to paragraphs 18 and 19 of the first affidavit whereat the plaintiff describes her duties in the Intensive Care Unit in the following terms:

“18	Work for the defendant in intensive care often involved a lot of bending and lifting. As I indicated above, I had back pain from time to time and also pain across the shoulders and neck.
19	I would take ‘over the counter’ painkillers but otherwise I kept working ….”

17        The plaintiff was also cross-examined as to the type of work she undertook as a critical care nurse and I refer to T21, L19, following whereat this evidence was given:

“Q:	This is the description that she had of what you were doing as a critical care nurse – this is Court Book 86 – you were ‘providing nursing care to critically ill patients and patients with unstable health following injury, surgery or following the acute phase of disease’, does that all sound right so far?---
A:	Correct.
Q:	Then she goes on to say ‘integrating new technological equipment into care settings such as high dependency units, intensive care units, emergency departments or retrieval services’, does that sound about right?---
A:	M’mm.
Q:	The reference to ‘integrating new technological equipment into care settings’, what does that mean? ‘Integrating new technological equipment’?---
A:	I described to her what sort of equipment we use which is some of them go on dialysis, they might have a Picco in or a Swan – Gantz which is all heart monitoring equipment. That’s all connected to the patient that we’re looking after and they’re on ventilators and things as well.
Q:	And ventilators help a person breath, is that right?---
A:	That’s correct. Yep.
Q:	And someone who is being assisted to breath with a ventilator is called a ventilated patient, is that right?---
A:	M’mm.
Q:	Now she goes on to say you were responsible for setting up, checking and maintaining medical equipment, correct?---
A:	That’s correct.
Q:	And providing physical and technical nursing care and support to patients, is that correct?---
A:	That’s correct.
Q:	And completing associated documentation such as patient observations?---
A:	That’s right.
. . . Q:	That’s the sort of work you were doing?---
A:	Yes.
Q:	It is the sort of work you were doing up until 6 February 2003?---
A:	Correct.
Q:	And it’s the sort of work you are doing right now, isn’t it?---
A:	That’s right.
. . . Q:	(His Honour):
And have you worked in the ICU at all times after your injury when you’ve come back to work?---
A:	Yes I have.
. . . Q:	Sorry, you were going to say something?---
A:	Sorry, Your Honour, a lot of that technical … makes it sound more than what it is. The patients are hooked up to equipment. We monitor and document all the readings off the equipment; you sit at the end of the bed and monitor the patient.
Q:	Yes, in my eye I think I have a picture of all that and I’m right in saying the ICU, it’s usually, what, one nurse per patient or?---
A:	That’s correct.
Q:	Or one nurse to two high-dependency patients?---
. . . Q:	(Mr McKenzie):
You were working on a full-time basis before the incident on 6 February 2003?---
A:	That’s correct.
Q:	And you’re working on a full-time basis now?---
A:	That’s correct. Yes, three shifts per week.
Q:	It’s three shifts at 12 hours a week, isn’t it?---
A:	That’s correct.
Q:	The shifts that you do, you do them on a rotating rostered basis?---
A:	Yes.”

18        On 6 February 2003, a heavy patient had to be lifted and manoeuvred in order that an x-ray plate be placed underneath him. When performing this activity, the plaintiff felt “severe pain in the back and shoulder”: (refer paragraph 23 of the first affidavit).

19        Initially her low-back pain was much worse than any shoulder pain and she only became aware of the left shoulder soreness after about two days. The low-back pain settled down after about four or five days but the left shoulder pain continued. The plaintiff continued to do her normal work but attended a chiropractor for treatment of her low-back and left shoulder.

20        In or about June 2003, the plaintiff found that after being involved with a relatively heavy patient she could not move her left arm at the shoulder. She attended her local chiropractor and also attended her general practitioner, Dr Stephen Ward, at the Lesdon Avenue Medical Centre. That doctor prescribed anti-inflammatory medications and the plaintiff was off work for about two or three weeks.

21        Dr Ward referred the plaintiff to the orthopaedic surgeon, Mr John Churchill, who arranged for an x-ray of the left shoulder to be undertaken. The x-ray report, dated 27 August 2003 (see page 69 of Exhibit A), states:

“Patchy demineralisation is noted in the humeral head presumably from disuse osteoporosis. Gleno-humeral joint alignment is normal and there is no soft tissue calcification.

The outlet view shows no impingement by the acromion on the supra- spinatus.

A shoulder hydro-dilation could be performed if required for management.”

22        The plaintiff underwent a hydrodilation of the left shoulder under local anaesthetic at Victoria Hospital in September 2003, after which there was slight improvement. Mr Churchill also arranged for the plaintiff to undergo an MRI scan of her left shoulder on 10 October 2003: (see page 70 of Exhibit A). That report concludes:

“Signs of supraspinatus tendonopathy of a relatively minor degree. There is certainly no full thickness supraspinatus tendon tear. Remaining rotator cuff tendons are intact. Minor signal abnormality within the superior labrum but no discrete tear. No other evidence of instability. Minor fluid in the subacromial bursa suggesting bursitis.”

23        Mr Churchill referred the plaintiff to a further orthopaedic surgeon, Mr Tass Paxinos (now deceased), who initially consulted with the plaintiff on 2 December 2003. Mr Paxinos made a diagnosis of adhesive capsulitis of the left shoulder and performed an arthroscopic capsular release of the left shoulder on 16 February 2004.

24        About one month after the surgery, the plaintiff suffered a recurrence of pain with gradual stiffness in the left shoulder causing Mr Paxinos to perform a further hydrodilation on 19 June 2004. Mr Paxinos considered improvement to be “slow” and accordingly, performed a further manipulation under anaesthetic of the left shoulder at the Glenferrie Private Hospital on 13 September 2004, during which time “adhesions were broken down the left shoulder with a subsequent full range of motion possible”: (see page 53 of Exhibit A).

25        In a report dated 10 January 2005, Mr Paxinos states:

“Following the second operation Mrs McKie has progressed extremely well with my most recent review being 14 December 2004. This is a point approximately three months following the surgery. At that point Mrs McKie claimed that she had an improved range of motion and decreased levels of pain in the left shoulder.

Clinical examination of the left shoulder revealed a range of motion approaching normal with only minor weakness being present in the rotator cuff. I advocated a continuation of physiotherapy or chiropractic treatment in an attempt to optimise the left shoulder function and deemed Mrs McKie fit for normal duties at work after a further month. …. ”

(See page 53 of Exhibit A).

26        During the early months of 2005, the plaintiff had a return of left shoulder pain “almost to its previous level”: (see paragraph 43 of the first affidavit). In particular, the plaintiff deposes that:

“I found that I could not lift my arm above shoulder height and I was limited in a lot of day-to-day activities. As a result of the constant pain in my shoulder and radiation of pain to my neck I started having migraine headaches.

In June 2005, Mr Paxinos referred me to Dr Bruce Mitchell, who treated me with nerve blocks to the neck and radiofrequency denervation. I felt no relief as a result of this treatment. On the contrary, the headaches became unbearable. Consequently, I only saw Dr Mitchell on two occasions.”

(See paragraphs 43 and 44 of the first affidavit).

27        The plaintiff has continued to work as an intensive care nurse at all times, save for some time off after each of the procedures undertaken by her. Consistent with nurses being supportive of each other, the plaintiff deposes that other nurses –

“help me to avoid any lifting and placing undue strain on my shoulder.”
(see paragraph 51 of the first affidavit).

28        Since the occurrence of the injury, the plaintiff has performed additional work to that undertaken with the first defendant. Such work has consisted of:

(a) In or about 2006 or 2007, the plaintiff commenced employment with Regis Sherwood Park Pty Ltd at a nursing home in Cranbourne in the capacity of a nurse. She was casual for a while then part-time for about twelve months: (see T47, L18-30).

For the financial year ending 30 June 2007, her gross earnings from Regis Sherwood Park Pty Ltd were $25,807.00 and gross earnings from the first defendant were $63,307.00: (see T48, L14 – T49, L8).

For the financial year ending 30 June 2008, the plaintiff had gross earnings from Regis Sherwood Park Pty Ltd of $37,528.00 and gross earnings from the first defendant of $61,649.00 (T51, L23 – T52, L10).

Throughout the period of her employment with Regis Sherwood Park Pty Ltd, the plaintiff worked in the nursing home section which housed high- care elderly patients, and sometimes the plaintiff gave out medications to dementia patients in another part of the nursing home.

When asked how many hours a week she worked, the plaintiff answered:

“To be honest, it might be two shifts one week, it might be one the next. If it was a weekend shift, then you know, it might have been just the one weekend shift, or the one public holiday. There might have been two another week. If I had time off … .”

(see T50, L17-23).

During that period of employment, the plaintiff also worked full-time with Regis Sherwood Park Pty Ltd during a holiday period with the first defendant: (T53, L12-27).

(b) The plaintiff resigned her employment with Regis Sherwood Park Pty Ltd to commence employment with National Patient Transport on or about 1 September 2008. She has continued to “help them out” when they were “really short” (i.e., help out at the nursing home): (see T56, L2-21).

The plaintiff commenced employment with National Patient Transport because such work was “more mentally stimulating … and [she] did not have to walk around and give medications at the nursing home”: (see T56, L29-31).

I refer to paragraph 6 of the plaintiff’s second affidavit wherein she deposes:

“In addition to my work at the Dandenong Hospital, I have also obtained concurrent casual employment with National Patient Transport. That involves me attending at racetracks as a nurse assistant. There is no heavy lifting involved and very little lifting involved. At race meetings there is always a doctor on duty and I am there to assist the doctor, if required. I am employed as part of the requirement to have medical and first aid assistants on course for the jockeys. I estimate that I would attend about one race meeting a week, depending on my roster at the Dandenong Hospital and depending on whether it is a busy time of the year or not in the racing industry. Frequently I do nothing more than simply attend at the racetrack. If there are no incidents or accidents involving jockeys then there is nothing for me to do. I am paid $40 per hour, plus penalties associated with weekend and public holiday work. I have also performed a couple of shifts for National Patient Transport where I have attended in an ambulance whilst a patient has been transported. Again, that has been work that did not involve lifting. ….”

The plaintiff continues to perform such work and averages 12 to 24 hours per fortnight, although hours of work include travelling to and from race meetings: (see T31, L14-15; T31, L18 – T32, L2).

29        The plaintiff explained why she has undertaken the extra work in the following terms:

“Q:	In fact you’ve gone on since the incident on 6 February, you’ve gone on to do other work haven’t you, in addition to the work at the Dandenong Hospital?---
A:	Do … Can I explain that I’ve gone on to look for other work and try it, look for lighter work because I don’t know how long I’ll be able to remain in intensive care – hopefully for a long time but ….
Q:	What I mean is you’ve done – in addition to your full-time work at Dandenong Hospital?---
A:	That’s correct.
Q:	In addition to that work you’ve gone and done extra work haven’t you?---
A:	Yes, light work, yes. No lifting. …. .”

(see T27, L12-24).

30        Other than the procedures undertaken, the plaintiff describes having “the odd time off” when “the shoulder plays up and it spasms and I get the migraines or the pain and I have sick days”: (refer T23, L28-31). Such flare-ups could be “weekly; it could be twice a week; it all depends on the size of patient I am looking after”: (T24, L3-5). The plaintiff estimated that “once every two to three months … I have a few days off” as a result of her shoulder condition: (T25, L10-11).

31        In her first affidavit, the plaintiff deposes that she attended her chiropractor from time to time, probably on an average “once or twice a month”: (see paragraph 46 of the first affidavit). Further, she deposes she has a supply of medication at home, including Tamazapan, Diazepam, Panadeine Forte and Naprosen but tries to “avoid taking medication as I am acutely aware of the long-term effects” (see paragraphs 47 and 48 of the first affidavit). In particular, the plaintiff deposes in her first affidavit, at paragraph 50:

“I always try and self-manage my condition by taking medication only when I need it, exercise that has been taught to me over the years by physiotherapists and avoiding activities that I know will aggravate the condition.”

32        In her second affidavit, the plaintiff confirms that she still attends for regular chiropractic treatment from Mr Kenny Ewan in relation to her left shoulder but has tried to reduce such treatment as she pays for it herself. Such reduction in treatment has produced a deterioration in her symptoms which she believes contributed to the need for cortisone injections given by Dr Ward in or about November 2009 and on 8 January 2010. She also continues to attend Dr Ward for treatment.

33        In her second affidavit, the plaintiff deposes that she does take Panadol and Panadeine on a daily basis, and at times when the pain is severe she uses Panadeine Forte (which she estimates would be one or two days a week).

34        The plaintiff gave the following viva voce evidence in respect to her current medication intake:

“Q:	(HIS HONOUR):
I just want to ask you about the pain, as you, in your affidavit, and as you have just repeated to counsel, on a day-to-day basis you told the Court that you always have at least a dull ache, is that right?---
A:	That’s correct, yes.
Q:	That dull ache is always there save and except those times, to use your words, when the arm gets aggravated or when you do something which makes it very sore and it goes into spasm, to use your words?---
A:	Yes.
Q:	Now, you told us yesterday how often that occurs, but on a day-to- day basis, when you’ve got the dull ache, do you take tablets for that?---
A:	Yes, I take regular Panadol.
Q:	Panadol, ‘over the counter’?---
A:	Yes.
Q:	And how many Panadol do you take a day?---
A:	I’m taking eight.
Q:	Eight?---
A:	Eight.
Q:	For how long have you been taking eight?---
A:	I’m just trying to think how many years now. I don’t know.
Q:	Approximately, are we talking about you doing it the last six months, the last …?---
A:	No, no, last few years.
Q:	Beyond the eight Panadol, do you take anything else just when it’s a dull ache?---
A:	Sometimes Nurofen Plus if it gets sort of niggly.
Q:	If it goes into, as you call, spasm when you have overused it or whatever?---
A:	Yes.
Q:	… what, if anything happens then in terms of tablets?---
A:	Panadeine Forte. I take … .
Q:	And Panadeine Forte, as I understand it, is by prescription?----
A:	Yes.
Q:	Who prescribes that for you?---
A:	Either Stephen Ward or I’ll get one of the doctors at work to write the scripts for me or I’ll get one of the doctors at the races to write the scripts for me.
Q:	I know it’s always difficult and don’t answer this if it is too difficult, can you give any indication to the Court how often you would take Panadeine Forte?---
A:	I have to say I take it twice a week.
Q:	When you say ‘twice a week’, one tablet each time?---
A:	No, I take two.
Q:	Two Panadeine Forte?---
A:	Yes.
Q:	And other than Panadeine Forte when the shoulder goes into spasm, are there any other tablets you take?---
A:	Yes, I have Valium which also reduces spasms so I will take between half a tablet and a whole tablet which is 2.5 or 5 milligrams of Valium.
Q:	Can you give some indication to the Court how often you would take the Valium?---
A:	Just when the pain’s severe.
Q:	Again, I don’t want you to guess but if you can’t really say so, say that, but if you could give some indication it would be of some assistance?---
A:	I’d have to say about once every three weeks.”

(see T74, L1 – T75, L18).

35        Mr McKenzie put to the plaintiff a history given to Dr Horsley allegedly on 13 January 2010 in relation to the Panadol and Panadeine intake. In answer, the plaintiff stated:

“A:	That’s right. I try not to take them but most of the time it’s eight per day because they wreck your liver. I try and stay away from them but I do take them.
Q:	How many do you take on a typical day?---
A:	You take eight per day.
Q:	That’s not a typical day though is it?---
A:	I take them every day. Average it’s at least four. The days I don’t work it’s about four, maybe six, the days I work they’re the eight a day. … “

(see T75, L20 – T76, L5).

The Consequences

36        In her first affidavit at paragraph 52 and following, the plaintiff deposes:

“I continue to work full-time but:

• I have constant pain. I’ve simply learned to work and live with it. As I indicate above, I manage it partly by avoiding activities I know will aggravate the pain and by taking medication from time to time.

• The pain in my shoulder, with referred pain to my neck, is usually around a level of two or three. There are times usually when I have tried to lift a heavy patient (about once a month) when the pain is so bad it affects my vision and I am nauseous. Even in the days of lifting machines there are still times when we had to briefly take the weight of a patient such as when rolling them in bed. It is on these occasions when I have pain at a level of eight or nine out of ten that I take medication.

• From the moment I get out of bed I am affected in a host of day-to- day activities:

- showering

- washing my hair

- styling and blow-drying my hair

- dressing

- undoing jars in the kitchen

- hanging out washing

- lifting saucepans

- lifting heavy baking dishes from the oven

- changing doona covers and sheets

- vacuuming floors.

• I can feel a sharp onset of pain as a result of simple movements like reaching over to unlock the door of a car with my left hand, reaching behind to the backseat of a car, hitching up my pants from behind my waist, lifting shopping out of the shopping basket (I have no difficulty lifting shopping items up to waist level, but I feel a sudden stab of pain when I go to take them or lift them out of a shopping basket).

• When I have a flare-up of pain it usually occurs every day or so, I feel a numbness in my fingers. On days when I have a flare-up to the extent referred to above when the pain level is eight or nine out of ten, I feel the pain radiating down my right arm into my hand and fingers.

• Most of my energy and effort goes into staying at work. I am severely restricted in day-to-day activities and have home help come into the house once a week to do the heavy stuff like mopping, vacuuming, sweeping and cleaning bathrooms, shower and toilet. I am so limited at home that I cannot even tuck a sheet in under the mattress. I am unable to do this at work either and other nurses do that particular task for me.

• When I get time off I do very little around my own house other than sit around, read or watch television and generally just try and get myself into shape to get back to work.

• I never sleep through a whole night. I cannot sleep on my left side. If I change position in bed when I am asleep and subsequently sleep on my left side I wake up in pain in my shoulder and pins and needles in my fingers.

• I don’t know how long I will last at work.

• Lately I’ve been finding it extremely difficult.”

(my emphasis)

37        In her second affidavit, the plaintiff confirms that she continues to suffer similar effects as a result of her left shoulder injury.

38        The plaintiff relies on various medical reports from her treating general practitioner, Dr Stephen Ward.

39        In a report dated 2 May 2008, Dr Ward describes the plaintiff attending an orthopaedic surgeon who believed that pain in her neck was due to a C4-5, C5-6 and C6-7 facet joint pattern causing radiating pain, shoulder pain and cervicogenic headaches.

40        In a report dated 26 March 2009, Dr Ward states:

“… inform you that Mrs McKie regularly attends Lesdon Avenue Medical Centre and is participating in her duties as an ICU nurse and to the best of my knowledge rarely missing shifts.

I have recently seen her on the 6th March 2009 and the 25th of March 2009 for other reasons and at that stage asked her about her shoulder and neck complaint.

She states that she has considerable pain and limitation in the function of the shoulder; difficulties in lying on the left side and cannot lie on the left shoulder; has limitations in lifting, has learnt to tolerate pain, rarely taking analgesia. She has adopted her life around the pain and works but finds the heavier patients, which are becoming more common, very troublesome with regards to having to turn them and she goes home from shifts considerably uncomfortable. …

In conclusion, Mrs McKie is an intensive care specialist nurse who is participating in the workforce in a regular capacity, taking medications very rarely, missing shifts very rarely. She has constant pain and limitation to her function and addresses this by living her life around the disability. I do not believe there will be resolution to these problems and hence I believe her disability with regard to her left neck and shoulder pain is permanent. … .” (my emphasis)

(see page 40 of Exhibit A).

41        In a later report dated 9 November 2009, Dr Ward further states, in part:

“Since the date of 26 March 2009, I have seen Vera on four occasions: 12th May when she attended with symptoms of Viraemia and secondary infection; 22nd September when she was having back pain and issues with her legs, in turn affecting her sleep; 9th November (today) when she requested a cortisone injection for hay fever and also with thoughts of helping her with her left shoulder pain. She also contacted the surgery on 10th August 2009 requesting further Temazepam and Ducene.

Today I discussed with Vera how life is going. She certainly is participating with a healthy attitude towards the future. She has got significant limitations with her neck and her shoulder but is participating in many shifts in her role with the ambulance service which is associated with the Victorian Racing Commission and is still participating in her intensive care work. …

I believe that Very McKie is in an excellent psychological state at present but is still limited in terms of pain in her shoulder and neck. I believe that these will be ongoing. I believe that she is employed and participating actively in area that she is highly skilled and feels comfortable that she can participate with confidence and I see no reason why this employment will falter in the near foreseeable future. … .”

(my emphasis)
(see page 42 of Exhibit A).

42        In his last report dated 25 January 2010, Dr Ward states, in part:

“Mrs McKie has only been seen at Lesdon Avenue Medical Centre once since the last report on 8-1-10. She cited no change to her left shoulder pain and has claimed that after shifts where she has had to participate in activities that had been heavier for her shoulder during patient welfare there is increased tenderness. She continues to maintain her role in the Intensive Care Unit and her roles of paramedic for the Victoria Racing facilities. …

Mrs McKie still states that she still suffers with shoulder pain, is not the same as she was prior to the injury and modifies her behaviours and her lifting ability due to an incident she states happened at work. I found her to be a reliable patient and have no reason to disbelieve her. I have no evidence to negate her statement. …

Mrs McKie shows evidence that she can do the vast majority of activities expected of a senior registered nurse in an intensive care situation. The activities that she cannot participate in would be lifting overhead and rolling patients. Of these she is as careful as she can be and minimises interference to the running capacity of the unit.

Mrs McKie has adopted her life surrounding her shoulder but I believe this would interfere with her ability to participate in heavier manual work, vibration and overhead activity. Her mindset and the seven years post- incident have meant that she has adopted to a new normal and accepted her limitation. There would be a variation between what she can achieve and what could be achieved by a fifty-four year old lady who has never had a left shoulder injury. The degree of interference with a percentage of person lost that this factor is, is beyond my expertise to comment upon. … .”

(my emphasis)
(see page 44 of Exhibit A).

43        The plaintiff was medico-legally examined by the orthopaedic surgeon, Mr Russell Miller, on 25 May 2009 at the behest of her solicitors. At that time, the plaintiff was complaining of neck pain, left shoulder pain and low-back pain. In particular, her neck and left shoulder complaints were recorded as follows:

“She has neck pain and discomfort which radiates into both arms but mainly the left arm with numbness and tingling in the hand. She has frequent associated headaches. Her symptoms fluctuate. She has sleep disturbance and there is no pattern towards improvement.

Left shoulder

There is pain, discomfort and irritability with the left shoulder which is worse with repetitive activities and worse with attempts at overhead activities.”

(see page 57 of Exhibit A).

44        Mr Miller was of the opinion that the plaintiff did develop capsulitis of the left shoulder, had appropriate surgery with only moderate response and continues to have “significant ongoing symptoms”: (see page 59 of Exhibit A).

45        Mr Miller was also of the opinion that the plaintiff has “significant ongoing symptoms” in her neck which, to a certain extent, “blend in with the left shoulder symptoms”: (see page 59 of Exhibit A).

46        The plaintiff was also medico-legally examined by the occupational physician, Dr Robyn Horsley, on 13 January 2010 at the behest of her solicitors. Dr Horsley is of the opinion that the plaintiff has suffered a secondary post- traumatic adhesive capsulitis of her left shoulder, mechanical low-back pain and symptoms suggestive of cervical discal pathology. Dr Horsley suggested a variety of work restrictions which seemingly would cover difficulties not only in her left shoulder but also extend to issues with her low-back and neck. Ultimately, Dr Horsley opined that the plaintiff has ongoing disability in the left shoulder girdle with a reduction in range of motion and persistent pain: (see page 68 of Exhibit A).

47        The plaintiff was medico-legally examined on behalf of the defendants by the following doctors:

(a)	the occupational health consultant, Dr David Ho, on 8 July 2003 and 26 October 2004; and
(b)	the rheumatologist, Dr Kevin Fraser, on 25 May 2009.

48        Dr Ho initially diagnosed adhesive capsulitis in the left shoulder of the plaintiff and when later examined, during which interval the plaintiff underwent two hydrodilatations and arthroscopy and manipulation under anaesthetic of her left shoulder, Dr Ho was of the opinion that the plaintiff had recovered well but not fully from her left shoulder adhesive capsulitis.

49        Dr Fraser obtained a history that the plaintiff has difficulty with “any overhead or forceful use of the left arm”: (see page 13 of Exhibit 1). On examination, he found left shoulder movements were somewhat restricted with pain and the extremes of abduction, flexion and internal rotation.

50        After noting that the plaintiff gave her history in a straightforward fashion with no overreaction on physical examination, Dr Fraser stated, in part:

“The condition … [adhesive capsulitis] … generally follows a self-limited course with gradual improvement in the range of shoulder movements over a year or two. However, sometimes the range does not return to normal. In her case there are clearly mild restrictions of abduction and flexion. At this stage, it seems unlikely there will be any further improvement.

I do not consider that she requires any further active treatment to the left shoulder.

… I would suggest there will probably be mild permanent incapacity as a result of the compensable injury such that there is some restriction in terms of overhead use of the left. However, it is not such as to prevent her from performing her normal duties which she has continued to do all along.

I can’t relate her migraine headaches to the putative shoulder injury and I do not consider that there has been any injury to her neck. Perhaps she should be seen by a neurologist in relation to the headaches.

It is noted in the body of this report, she also complains of low-back pain as a result of the incident at her work in February 2003. However, examination of her back was normal and I do not consider that there is an ongoing injury. … .”

(my emphasis)

Cross-Examination of the Plaintiff

51        In relation to the plaintiff’s restrictions and consequences of her left shoulder injury, she gave the following pertinent evidence:

(a)	She adopted the first and second affidavit with minor typographical changes;
(b)	Being right-handed, she performs most things in her working life with her right hand (T17, L26 – 30);
(c)	She has limited contact with her grandchildren but hopes that will increase in the future and “hopefully” she will be able to dress and bath her younger grandchild but would not be able to place her in a car seat (T19, L10-12);
(d)	The plaintiff believes that her shoulder injury gives rise to her “horrific headaches” and pain to her back and neck are “through my shoulder” (T24, L25-31);
(e)	The plaintiff gets pride out of working as a nurse and continues to have pride and satisfaction helping other people (T27, L1-5);
(f)	At present, in a typical week, the plaintiff does her normal full-time work with the first defendant and one shift of work with National Patient Transport either at racetracks or patient transport (T38, L20-24);
(g)	The plaintiff prefers performing the three, twelve-hour shifts with the first defendant rather than a greater number of shorter shifts as this stops the shoulder from getting as fatigued (T41, L3-4);
(h)	The plaintiff travels with her husband on a reasonably regular basis involving overseas travel and she does not have any particular pressing financial need to work (T69, L30-31);
(i)	The plaintiff has home help a full day per week. The plaintiff has always had a housekeeper prior to her injury but the hours have increased since the surgery to her left shoulder. When asked about activity and pain in her left shoulder, the plaintiff gave the following evidence:

“Q:	Mrs McKie, am I right in understanding that the pain in your left shoulder is brought on by activity?---
A:	Yes, it all depends on the activity.
Q:	And more particularly, if you are not using your left shoulder there’s no pain in your left shoulder?---
A:	No, there’s always a dull ache and burning in my shoulder. It gets aggravated where, as I said, it causes the headaches through the muscle spasms and into my back. I also get numbness down my hands, down to these fingers if I’m doing – if I push it.
Q:	The things which aggravate your left shoulder are reaching overhead?---
A:	Yes, if I reach way too far, I’ve got limited movement in it.
Q:	And forceful use of the left arm?---
A:	And overuse yes, it all depends if I’ve got a lot of iv fluids to make up, just say someone is on dialysis and you’ve got to shift fluid around, while I lift as much as I can with my right arm, those – but you’ve still got other things you’ve got to move with your left hand. When the patients are on the ventilator, I’ve got to reach over, hold the end of the endotracheal tube and support it when I suction, there’s certain things I have to use my left hand for, I can’t do with the job without my left hand.”

(my emphasis).

Analysis of the Evidence

52        I am satisfied that the plaintiff suffered a compensable injury to her left shoulder arising out of or in the course of her employment on 6 February 2003. Furthermore, I am satisfied that such injury has resulted in such permanent impairment of the left shoulder giving rise to physical consequences. So much is not disputed by the defendants.

53        In determining whether such “consequences” are “serious” within the meaning of s.134AB of the Act, I am assisted by two recent Court of Appeal decisions of Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, delivered on 14 August 2009, and Sabo v George Weston Foods [2009] VSCA 242, delivered on 23 October 2009. In particular, I refer to the following matters:

(a)  The dicta of Ashley JA and Beach AJA in Stijepic, wherein they state:

“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”

(See paragraphs [40] – [42])

(b) In Stijepic (op cit), Ashley JA and Beach AJA refer to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, wherein, at paragraph 27, it is stated:

“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”

(c) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at paragraph [24], whereat His Honour stated:

“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’.”

Ashley JA and Beach AJA commented in relation to these words:

“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. ...”

54        Counsel for the defendants submitted that the plaintiff had not discharged her onus in satisfying the narrative test, and in particular made these submissions:

(a)	That given the nature of “range cases”, the fact that a plaintiff may be a truthful witness does not necessarily translate into them having a “serious injury”;
(b)	The plaintiff, being right-hand dominant, does most activities of her daily life with the right hand and that the left shoulder obviously involves the non-dominant arm;
(c)	The plaintiff has continued to do what she always wanted to do and for which she takes pride in – that is, continuing as an Intensive Care Unit nurse;
(d)	That although she says she is contemplating alternative work, it is now seven years post-injury and she has been able to do the Intensive Care Unit work for that period and there is no suggestion from the general practitioner that she would have to give that work away;
(e)	The pain that she suffers does not prevent her from working;
(f)	The medication taken by the plaintiff is largely ‘over the counter’ and in the spectrum of medications is at the lower end;
(g)	That the plaintiff is having isolated periods of time off work in the context of not only doing her twelve-hour shifts with the first defendant but also performing the other work with National Patient Transport;
(h)	There is no evidence of any inhibition of social activity, sporting activity, recreational activity or her ability to travel overseas as a result of her left shoulder injury;
(i)	That the medical evidence does not support a connection between the headaches and the left shoulder injury. In particular, Dr Fraser, and to a lesser extent, Dr Ward, do not support a connection between the headaches and the shoulder injury;

55        Counsel for the plaintiff submitted that the plaintiff had discharged her onus and has satisfied the narrative test, and, in particular, made these submissions:

(a)	Urged some caution in the recent cases handed down in the Court of Appeal in relation to “range cases” involving “pain and suffering consequences”;
(b)	That the matters deposed to by the plaintiff in paragraph 52 and following of her first affidavit were largely if not wholly unchallenged and, accordingly, should be accepted ;
(c)	The amount of medication being taken by the plaintiff on a daily basis is significant;
(d)	The plaintiff has undergone invasive treatment and that in itself is a “consequence” which is relevant to determining whether or not the plaintiff satisfies the narrative test;
(e)	The plaintiff has had and continues to have chronic pain symptoms in the left shoulder and the Court should accept that her headaches are related to her shoulder injury rather than her neck injury;
(f)	Observations of the plaintiff during the hearing revealed that it was “quite noticeable that there was guarding of the left shoulder when she was moving in the witness box”;
(g)	The plaintiff has ongoing passive treatment via her chiropractor and general practitioner although on an intermittent basis;
(h)	The plaintiff has been required to increase the level of housekeeping as a result of her left shoulder injury.

56        I accept the plaintiff as essentially a witness of truth who gave her evidence in a straightforward manner. Of course, as submitted by counsel for the defendants, such a finding does not necessarily translate to a further finding of “serious injury”. However, such a finding does permit me to act with some confidence when the plaintiff deposes in relation to the pain, restrictions and problems associated with her left shoulder injury.

57        The deceased treating surgeon, Mr Paxinos, last examined the plaintiff either in late 2004 or early 2005 when he found the left shoulder revealed a full range of motion approaching normal. However, of more recent times, Mr Miller (25 May 2009), Dr Robyn Horsley (13 January 2010) and Dr Kevin Fraser (25 May 2009) all found a restriction of movement of the left shoulder consistent with the consequences of adhesive capsulitis. Consistent with the evidence of the plaintiff, I prefer the views of Mr Miller and accept that the plaintiff has “significant ongoing symptoms” in her left shoulder.

58        On the available evidence, I am unable to make any finding on whether the headaches suffered by the plaintiff are related to her left shoulder injury, her neck or a combination of both. In this respect, Dr Ward talks of “cervicogenic headaches”, Dr Horsley suspected that some of the symptoms of the plaintiff were suggestive of “cervical disc pathology” and Dr Kevin Fraser suggested that the plaintiff be seen by a neurologist in relation to headaches.

59        However, I do find that the plaintiff suffers nocturnal pain in relation to her left shoulder and constant daily pain varying from a dull ache to very intense pain after certain activities. Further, I also accept that the plaintiff takes Panadol and Nurofen on a daily basis – up to eight a day – to control the left shoulder pain. Furthermore, when the pain becomes particularly severe (about twice weekly), the plaintiff can take Panadeine Forte. Also, the plaintiff takes Valium (on a far less regular basis) for the most extreme pain.

60        I refer to the recent decision of Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12 delivered by the Court of Appeal on 16 February 2010, wherein Robson AJA (with whom Ashley JA and Mandie JA agreed), stated, at paragraph 75:

“I do not demur from the statements of principle in the earlier appeal and agree with the proposition that ‘The endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a very real prospect of a ‘very considerable’ consequence’. … “

61        In a similar way, I am of the opinion that such unrelenting pain, although of varying intensity, and the need for the constant medication (again fluctuating as to amount and strength) is a consequence which can be well described as “very considerable”.

62        In the circumstances of this matter, I am conscious that in the context of the allegations of pain and the amount of medication taken, the plaintiff has continued to work as an Intensive Care Nurse with the first defendant, albeit with some informal assistance from other nurses. Furthermore, and perhaps most dramatically, the plaintiff has not only continued to perform her pre- existing duties but also has performed additional work, initially at a nursing home, and more recently at racecourses and (to a far lesser extent) assisting the transfer of disabled patients by ambulance from home to hospital or from hospital to hospital.

63        Although the plaintiff says that such alternative work is in part at least to investigate lighter forms of nursing in the event that she had to cease the Intensive Care Unit nursing (which she takes great pride in performing), the defendants submit, understandably, that there are no real signs of the plaintiff giving away such Intensive Care Unit nursing work and perhaps more potently, questions how bad are her symptoms if she is able to perform not only her pre-existing duties but these added nursing duties.

64        Of course, the plaintiff also relies on various other matters set out in paragraph 52 of her first affidavit and indeed the requirement that she increased the hours of her housekeeper.

65        Leaving aside the pain and medication consequences, and appreciating that the plaintiff is a right-handed person, I am not persuaded that such consequences, either individually or cumulatively, amount to a “serious” consequence as a result of her left shoulder injury.

66        Furthermore, I reject the submission of the plaintiff (as I understood it) that the mere fact of undergoing invasive therapies is relevant in evaluating the “pain and suffering” consequences. As both the Act and authority make clear, it is not the extent of any injury or indeed the surgery required for any injury which is determinative of “a serious injury”. The “injury” and resultant surgery must give rise to an impairment with “permanent” consequences.

Conclusions

67        I consider this a line-ball application but am persuaded that the frequency, extent and nature of the left shoulder pain which requires a large amount of medication to control is a consequence which may be fairly described as more than “significant” or “marked” and at least being “very considerable”.

68 Accordingly, the application is granted. Pursuant to s.134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of pain and suffering damages for a left shoulder injury suffered by her in the course of her employment on or about 6 February 2003.

69        I will hear the parties on the question of costs.

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