Menzies v Victorian WorkCover Authority
[2018] VCC 1034
•12 July 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05130
| HEATHER GAYLE MENZIES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 18 and 21 May 2018 | |
DATE OF JUDGMENT: | 12 July 2018 | |
CASE MAY BE CITED AS: | Menzies v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1034 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right arm – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission and O’Dea v Dennis [1998] 1 VR 702; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the injury suffered in the work accident on 11 April 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms G Cooper | Wisewoulds Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by her in the course of her employment with Barwon Health on 11 April 2014.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the dominant right arm.
6 The plaintiff relied upon three affidavits, two sworn by the plaintiff on 28 April 2017 and 30 April 2018, and an affidavit sworn by her husband, Malcolm Menzies, on 1 May 2018. The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff and of her husband; however, I will refer to the relevant evidence of the plaintiff and her husband in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
Relevant legal principles
7 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.[1]
[1]Section 134AB(19)(a) of the Act
8 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, or due to the nature of, her employment with Barwon Health;[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of her impairments to the right arm in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c) of the Act
9 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission and O’Dea v Dennis:[5]
“... many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. ...”
[5][1998] 1 VR 702
10 The Court of Appeal was considering the wording under the Transport Accident Act, which is the same wording adopted under the Act. Accordingly, I adopt the reasoning of Callaway JA outlined above.
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[6]
“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. … .”[7]
[6][2009] VSCA 181
[7](supra) at paragraph [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[8]
[8]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
14 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences 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”;[9]
[9]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[10]
(c) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[11]
[10]Section 134AB(38)(j) of the Act
[11] 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]
Credit
16 The plaintiff had limited education, having left school at the end of Year 10. Her work experience was in various factory jobs in the Geelong area. When she answered questions, she often either agreed or disagreed. She did not elaborate or offer information. When she understood the question being asked, she was able to provide more detailed answers, but even then her answers were limited by her education and experience. The plaintiff made concessions. She conceded that she was prescribed Diazepam as a result of anxiety and panic attacks.
17 In relation to her husband’s affidavit, she conceded that the recliner chair referred to in her husband’s affidavit was purchased as part of a lounge suite prior to her work injury. She also said that the layout of her bathroom had been changed in 2015, before she ceased employment with the employer from a bath-shower set up to a walk-in shower.[12] The new design allowed her to walk into the shower without stepping over the bath.
[12]T39, L7-9
18 Following her work injury, the plaintiff returned to work on light duties, with occasional time off work due to the injury. In July 2015, the plaintiff was given a clearance certificate to perform full duties by her general practitioner. I accept the plaintiff exaggerated her ability to return to full duties to her general practitioner, in order that she could receive her redundancy package. I also accept that the plaintiff did not disclose the pain symptoms she suffered in the past when she underwent a pre-employment assessment in October 2016 because she did not want to deter her chances of obtaining employment.
19 There was no suggestion by the medical witnesses that the plaintiff’s credit was in issue. All medical witnesses accepted that she had restricted movements of her right arm which would interfere with her activities of daily life.
20 In re-examination, the plaintiff was asked about the period of time between August 2015 and August 2016, when she was caring for her grandson, Aiden, aged eighteen months at the time. The plaintiff said she struggled in caring for Aiden, used her left arm a lot, and that her husband would help her but she did what she had to for the kids.[13] When asked about how she would go with washing Aiden, the plaintiff demonstrated with her left hand as to how she would wash Aiden with a washcloth. From my observations of the plaintiff in cross examination, I formed the view that she had difficulty in articulating her responses to questions.
[13]T45, L21-31 and T46, L1
21 Overall, the plaintiff was a credible witness who had difficulty in being cross-examined, which I accept was due to her limited education and the situation in which she found herself.
Background
22 The plaintiff is aged fifty-three years. She is married to Malcolm Menzies and lives in Norlane with her husband, son and granddaughter. In June 2001, she commenced work in the laundry at Barwon Health. She was required to manually pull and lift laundry off the carousel and to put the loads into baskets. She would push heavy trolleys loaded with laundry. Her work was repetitive and she was required to work at a fast rate.
23 On 11 April 2014, the plaintiff suffered injury to her right shoulder. She was pulling loads of gowns off the carousel. The gowns were wet and knotted up hard together. The work was heavy and awkward, and while pulling a knotted load of gowns, she felt a sharp pain in her right shoulder.
24 On 15 April 2014, the plaintiff consulted her general practitioner, Dr Stephen Fitzgerald, who confirmed that she presented complaining of a strained right shoulder. Dr Fitzgerald said that clinically, she appeared to have a rotator cuff strain. An ultrasound of the right shoulder disclosed:
·supraspinatus calcific tendinosis without evidence of a definitive full-thickness tear, although a partial-thickness tear cannot be excluded
·subscapularis tendinopathy with evidence of previous delamination injury at its insertion
·subacromial bursal thickening with evidence of impingement.
25 Dr Fitzgerald diagnosed right rotator cuff tendinitis and subacromial bursitis.
26 On 9 May 2014, the plaintiff underwent an ultrasound-guided injection in the right subacromial bursa.
27 In July 2014, the plaintiff was referred to physiotherapy.
28 In October 2014, she underwent an ultrasound of the right shoulder, which concluded a full-thickness, partial-width tear, supraspinatus plus calcific tendinopathic changes.
29 In December 2014, she underwent an MRI scan which showed a high grade partial thickness supraspinatus tear, subscapularis tendinosis and subacromial sub-deltoid bursal fluid.
30 As the plaintiff’s condition persisted, she was referred to Mr Kevin Eng, orthopaedic surgeon, who examined her in December 2014. He diagnosed right shoulder pain due to a combination of neurological causes and mechanical causes from a degenerative rotator cuff. It was his view that the plaintiff’s injury was work related. Mr Eng advised against surgery and referred her to a pain specialist, Dr Brett Chandler.
31 Dr Chandler reported that he treated the plaintiff between February and April 2015. At the time of his examination, there were no signs of neuropathic pain or central sensitisation, and he discussed the options of a suprascapular nerve block as an alternative to surgery. He performed that procedure on 19 March 2015, and reviewed the plaintiff on 16 April 2015, where he recorded she had an excellent response at that stage. His diagnosis, which was demonstrated on MRI, was of an anterior supraspinatus insertion tear, suprascapularis tendinosis, as well as that seen in the infraspinatus. He accepted the injuries were consistent with the stated cause. He did not see the plaintiff after April 2015.
32 By July 2015, the plaintiff reported to her general practitioner that the shoulder pain had improved to the point where she felt she was able to return to her previous duties, and requested a clearance to return to her pre-injury duties. Her general practitioner declined to provide a clearance certificate as the plaintiff was reporting pain and limited range of motion.[14] On 9 July 2015, the plaintiff returned, reporting that the pain had improved to the point where she could perform normal duties. The general practitioner provided a Worker’s Compensation Certificate.[15]
[14]DCB, General practitioner’s records dated 7 July 2015
[15]DCB, General practitioner’s records dated 9 July 2015
33 Between the time of her injury until she accepted a redundancy package with the employer, the plaintiff worked initially in normal duties until May 2014 and then on light duties. On occasions there were days she was unable to work and obtained a WorkCare certificate from her doctor.
34 In October 2015, the plaintiff reported to her general practitioner that she had taken a redundancy package from Barwon Health. She had minimal discomfort in the right shoulder, although she struggled with activities above shoulder height such as hanging out washing. Examination showed she had a full range of movement in the shoulder, although she reported some pain with abduction beyond 100 degrees.
The current medical evidence
35 The current medical evidence relied upon is of Mr Russell Miller, orthopaedic surgeon, who examined the plaintiff at the request of the plaintiff’s solicitors, and Mr Ian Jones, orthopaedic surgeon, who examined the plaintiff at the request of the defendant in 2017 and 2018. I shall refer to their evidence in my analysis.
Issues
36 Counsel for the defendant submitted that there were the following issues:
· The plaintiff’s consequences do not meet the “very considerable” test under s134AB(38)(c);
· There is a question of disentanglement between the psychological and physical contribution to the pain and suffering consequences as considered in Meadows v Lichmore Pty Ltd.[16]
· The plaintiff was reporting minimal discomfort to the medical witnesses as of October 2015, and in both her affidavits the plaintiff does not address the fact that her shoulder pain and discomfort had worsened since October 2015-2016.
[16][2013] VSCA 201
Analysis of the evidence
37 The medical witnesses who treated the plaintiff at the time of her injury expressed the view that the plaintiff suffered a physical injury at work in April 2014.
38 In April 2016, Dr Fitzgerald, general practitioner, described the injury as a rotator cuff tendinitis and subacromial bursitis.
39 In April 2016, Mr Eng, orthopaedic surgeon, diagnosed a right shoulder pain due to a combination of neurological causes and mechanical causes from a degenerative rotator cuff.
40 In October 2016, Dr Chandler, specialist pain medicine physician, diagnosed an anterior supraspinatus insertion tear, suprascapularis tendinosis, as well as that seen in the infraspinatus. The injuries are consistent with the stated cause.
41 In January 2018, Mr Miller, orthopaedic surgeon, said the plaintiff had clinical features suggestive of rotator dysfunction, capsulitis and impingement. He accepted that the symptoms, as suggested in the reports of Mr Eng and Mr Jones, raised the possibility of suprascapular nerve injury. However, he said there may well be a neurological basis for the plaintiff’s symptoms, but in his view, the ongoing symptoms reflect the shoulder pathology rather than the neurological disease. He concluded that her physical work over a protracted period of time contributed to the evolution of the shoulder disease, and there was a specific aggravation at work on 11 April 2014. He therefore concluded that her current clinical status of the right shoulder was substantially work related.
42 In April 2018, Mr Jones said the plaintiff suffered from right shoulder pain with restriction of abduction and flexion, secondary to some rotator cuff degenerative disease involving the tendons of her right shoulder. He was unable to explain the diffuse burning involving the skin over the plaintiff’s right arm. In 2017, he said there was no functional symptoms or signs in the plaintiff’s presentation in 2017, and in 2018, he said he could not comment on any adverse psychological reaction suffered by the plaintiff. Further, he expressed no view as to whether or not the injury was work related.
43 I note that the plaintiff has had no neurological review nor have there been any radiological investigations into a nerve injury relating to the right shoulder. I accept that the medical evidence was that the plaintiff was reporting a physical injury.
Disentanglement
44 Counsel for the defendant submitted that there was a question of disentanglement between the psychological and physical which was considered in Meadows v Lichmore Pty Ltd.[17] However, there was no medical evidence to suggest the plaintiff was suffering a psychological injury.
[17](supra) at paragraph [20]
45 In essence, the issue is whether, and to what extent, I can be satisfied that the plaintiff’s current pain and disability in the right arm has an organic basis, or whether the symptoms of diffuse burning pain of which the plaintiff also complained are due to the non-organic. The real issue is the nature and extent of the organic component.
46 In Meadows v Lichmore Pty Ltd,[18] Maxwell P said:
“… serious injury applications raising issues of this kind are effectively approached in a two-step manner. 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.”
[18]Supra
47 Accordingly, it is necessary for me to determine whether, based on the medical evidence, there is a substantial organic basis for the pain and suffering consequences relied on by the plaintiff.
48 In 2017, Mr Jones said there were no functional symptoms or signs. In 2018, he reiterated his comments in 2017, namely that he could not comment on any adverse psychological reaction suffered by the plaintiff. Further, in 2018, he said the plaintiff suffered right shoulder pain with restriction of abduction and flexion, secondary to some rotator cuff degenerative disease involving the tendons of her right shoulder. The plaintiff developed problems with the right shoulder suggestive of dysfunction, capsulitis and impingement. The ongoing symptoms reflected shoulder pathology.
49 Mr Miller said the plaintiff reported problems with anxiety and depression which required additional assessment by a psychiatrist. A psychiatrist’s report was obtained by the plaintiff, but not relied upon. The plaintiff agreed that in the past she had been prescribed Diazepam by her general practitioner to assist her with panic attacks.[19] The plaintiff’s prescription records confirm that between December 2002 and November 2015, the plaintiff obtained seven prescriptions for Diazepam, over a thirteen-year period.
[19]T31, L9-11
50 I accept the evidence is that prior to the work injury, the plaintiff suffered panic attacks for which she was prescribed Diazepam between 2002 and 2015, on occasions. There was no medical evidence from a psychiatrist that the plaintiff suffered a psychiatric/psychological condition. Further, none of the medical witnesses suggested that the plaintiff had any basis for her injury other than an organic basis. Accordingly, the issues raised in Meadows v Lichmore[20] do not arise.
[20]Supra
51 Based on the medical evidence, I accept that the plaintiff’s right arm injury is a physical injury which is work related.
52 A further submission of the defendant was that as of October 2015, the evidence was that the plaintiff was reporting minimal discomfort to the medical witnesses. In this proceeding, the plaintiff swore two affidavits, in April 2017 and April 2018. In neither of those affidavits did the plaintiff deal with the fact that her shoulder pain/discomfort has worsened since October 2015-2016.
53 The evidence at about October 2015 was as follows:
54 In October 2015, Dr Fitzgerald recorded that the plaintiff continued to suffer some right shoulder discomfort but minimal since she stopped work. In cross-examination, the plaintiff agreed that was the position at that time.[21]
[21]T14, L4-7
55 That was consistent with Dr Fitzgerald’s medical report dated 11 April 2016.[22] In that report he noted that from July 2015, the plaintiff said she had improved to the point that she had full pre-injury capacity. However, he did qualify that by saying he had not examined the plaintiff in the last six months and was unable to comment on present or future capacity for work.
[22]PCB 55
56 On 17 March 2018, Dr Fitzgerald reported to the plaintiff’s solicitor that he had not seen the plaintiff in relation to her shoulder injury since 20 October 2015.
57 On 18 April 2016, the treating physiotherapist said he last treated the plaintiff on 27 July 2015. At that time the plaintiff reported minimal concerns with activities of daily living, which he said gives confidence in her ability to undertake different work capacities in the future.[23] The physiotherapist’s records of 27 July 2015 were included in the Defendant’s Court Book and confirmed the report.[24]
[23]PCB 54
[24]DCB 21
58 On 19 October 2016, the plaintiff underwent a pre-employment assessment conducted by George Atkins of Direct Recruitment. The plaintiff said she believed he was a physiotherapist. The assessment recorded active ROM (range of motion) of the right shoulder on flexion, abduction, external rotation, internal rotation and nil impingement. It recorded that the plaintiff could lift and lower 5 kilograms, could carry a maximum weight of 10 kilograms, and had good posture on pushing and pulling 20 kilograms. The pre-employment medical recorded that the results were based on observations made during the screening, the applicant’s self-reporting and information available at the time of compiling the report. The report concluded that the applicant would be capable of performing the inherent requirements of the position.
59 The plaintiff’s evidence was that the results were accurate as at October 2016. She agreed she did not disclose the pain symptoms she had suffered in the past because she did not want to deter her chances of obtaining the job.[25]
[25]T19, L25-31
60 Counsel for the defendant submitted that there is evidence that the plaintiff’s shoulder injury was minimally interfering with activities of daily living.
61 I accept that as at October 2015, the plaintiff was reporting minimal pain to medical practitioners. The evidence is that in mid July 2015, she was made redundant. I accept that with time off work her shoulder injury improved. I also accept that the plaintiff was keen to return to the workforce. She undertook study and, as at October 2016, when attending a pre-employment assessment, she did not disclose the pain symptoms she had suffered in the past, because she wanted the job.
62 I accept that the plaintiff’s affidavits do not specifically address the worsening pain that she now reports, particularly in the light of what she was reporting in 2015.
63 The plaintiff’s current evidence is that she continues to suffer pain in her right shoulder, on a daily basis, which is constant. She deposed that she avoids heavy lifting. She feels pain if she lifts above shoulder height, and struggles. She is restricted in activities at home. She no longer vacuums, hangs out washing, scrubs floors and bathrooms. She relies on her husband for any heavy lifting activities.
64 She has trouble sleeping. She is concerned about her future and work.
65 In relation to the plaintiff not reporting a worsening in her right shoulder pain since October 2015, I accept that the plaintiff did not report to any of the medical witnesses, worsening pain; however, I note that neither Mr Miller nor Mr Jones raised this as a concern in their reports. Both Mr Miller and Mr Jones accepted she suffered pain and restrictions which were in large part work related. Neither medical witnesses made any comment about her lack of medical treatment.
66 I must now consider the consequences of that injury.
Pain
67 The plaintiff’s current evidence as to pain is that she continues to suffer from pain in her right shoulder.[26] The pain is constant and can get up to a seven out of ten on a pain scale on a regular day.[27] The pain can be an ache that is across the shoulder joint.
[26]PCB 22, paragraph 13 and PCB 26, paragraph 7
[27]PCB 26, paragraph 7
68 In cross-examination, the plaintiff said she had a burning sensation from her forearm, up her arm and across her shoulder to her neck. She said she had stabbing pain in front of the shoulder.[28]
[28]T29, L23-24
69 In re-examination, she said the burning sensation goes from her forearm up into her shoulder and into her neck, which is present all the time. She has aching over the front of her right shoulder and at times she gets a stabbing pain in the front of her shoulder. She said the stabbing pain varies and she had it whilst she was in the Court. She said the stabbing pain depends on her day. When asked what activities made the pain worse, she answered that there are a lot of things around the house that she cannot do. For example she has trouble throwing a ball into a cricket pitch or soccer field when playing with her granddaughter. She often uses her left hand. She said the pain is constant and it was the same as in 2015 when she was working at LinenCare.[29] In re-examination, the plaintiff said the pain in her shoulder has gotten worse, which she assessed as being eight out of ten on a pain scale, with ten being the top of the range.
[29]T46, L15-21
70 The Court of Appeal has said that in evaluating the pain and suffering consequences of a “serious injury”, the Court must consider both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. In considering the experience of pain, the Court must assess the intensity of pain which the plaintiff experiences, which is often classified on the scale: mild-moderate-severe. Unless the pain is constant, the Court will need to assess the frequency and duration of the episodes of pain. The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (for example medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
71 In April 2017, the plaintiff said she continued to suffer from pain in her right shoulder, on a daily basis, which comes and goes and fluctuates and is unpredictable. It can vary from a dull ache to a sharp pain. She has pain in the shoulder joint which radiates down to her right arm towards her elbow joint.
72 In September 2017, the plaintiff reported to Mr Jones a constant burning sensation, indicating the skin over the back of her right shoulder blade and extending to the posterior aspect of the right upper arm. Movement of the right shoulder is restricted and an inability to lift her right arm above shoulder height. She reported she could perform all activities of daily living; however, disagreed with that comment in cross-examination. She agreed there were no limits on walking, sitting or standing and agreed she could drive but only in the Geelong area. In cross-examination, she agreed that that was the only driving she did prior to the injury.
73 In January 2018, the plaintiff reported to Mr Miller aching, discomfort and pain in her shoulder, worse with repeated activities and overhead activity. She suffered a sharp pain in the upper arm with feelings of numbness and tingling in the upper arm, worse with repetitive and overhead activities. He noticed slight wasting of the supraspinatus and infraspinatus muscle and tenderness in the area. There was a prominent and tender acromioclavicular joint. There was irritability with shoulder movement and the plaintiff reported slight diminished sensation of the posterior aspect of the shoulder.
74 Mr Miller accepted the plaintiff’s complaints of pain and that she had difficulties with heavier domestic and gardening activities which are undertaken by her husband. He agreed she would have some reduction for heavier domestic and gardening activities as a result of her injury. He accepted that she would have a reduction in her capacity for pre-injury leisure and recreational activities.
75 In April 2018, the plaintiff reported to Mr Jones she has ongoing symptoms in her right shoulder of a burning sensation which extends from the level of her right wrist, up her forearm to the posterior aspect of her upper arm and into tissues of the right girdle, and stiffness in the right shoulder, particularly in her arm, which benefited from a hot shower. Mr Jones reported that the measured range of abduction in the right shoulder was to 90 degrees, with flexion at 80 degrees. External rotation appeared slightly restricted at 80 degrees, with normal internal rotation and extension.
76 Mr Jones concluded, as a consequence of her injury, the plaintiff reports symptoms of constant burning pain involving the whole of the right arm and the skin on the back of her shoulder blade, as well as shoulder stiffness, liming the use of her right arm at or above shoulder height. He said the plaintiff suffers from right shoulder pain with restriction of abduction and flexion, secondary to some rotator cuff degenerative disease involving the tendons of the right shoulder. He was unable to explain the diffuse burning involving the skin over the plaintiff’s right arm, extending up from the level of her wrist. He said the distribution of the burning pain does not appear to correspond to any peripheral nerve or dermatome pattern.
77 I accept the plaintiff suffers constant discomfort and pain in the shoulder, which is worse with repetitive activities and overhead activities. She has a sharp shooting pain in the upper arm with feelings of numbness and tingling in the upper arm. On occasions, she has a burning sensation that goes from her shoulder up into her neck. The plaintiff reported the pain to the current medical witnesses, Mr Miller and Mr Jones.
78 I take into account the fact that the plaintiff has not sought any medical treatment since October 2015; however, I note that she said she learnt to manage the pain.
Treatment and medication
79 It was accepted by all parties that the plaintiff had not received any medical or physiotherapy treatment for her right arm injury since October 2015.
80 In October 2015, the plaintiff reported that she continues to have discomfort, but minimal since she has stopped work. She reported struggling to hang washing out. The general practitioner noted that she had almost full abduction and rotation, but pain beyond about 100 degrees abduction.
81 In October 2016, the plaintiff attended Corio Bay Workhealth Australia and underwent a pre-employment screening assessment with the City of Greater Geelong. Based on observations made during the screening, the plaintiff’s self-reporting and information available at the time of compiling this report, it was anticipated that the plaintiff would be capable of performing the inherent requirements of the position. The plaintiff agreed that she did not disclose that she had experienced pain in her right shoulder in the past.[30]
[30]T19, L28-31
82 The plaintiff agreed that she had an examination of her right shoulder. She agreed that at the time of the examination, that her right shoulder was satisfactory and there was no impingement.[31] I accept that, as at October 2016, the plaintiff was not reporting any shoulder pain or restriction of movement.
[31]T20, L14-29
83 The plaintiff reported to Mr Miller she uses a range of medications, including Panadeine and Panadol, and uses heat patches. She uses a TENS machine and has strapping to her shoulder. She has a self-administered exercise program at home. Mr Miller said the plaintiff will require ongoing conservative treatment which may include additional measures of pain management and rehabilitation. He said it is possible she will require surgical assessment and treatment in the form of arthroscopic intervention and that her treatment is appropriate to date. Further, requirement for treatment to the right shoulder will be work related.
84 The plaintiff reported to Mr Jones she currently takes eight Panadol per day for right shoulder pain, uses the TENS machine and rubs cream into her right shoulder.
85 The plaintiff’s prescription records from December 2002 to May 2017 were before the Court. Those records confirm the plaintiff was prescribed Diazepam on seven occasions, the last of which was on 9 November 2015 for panic attacks. Following the work injury the prescription records were up to 4 May 2017.
86 I accept that the current treatment the plaintiff has is at the middle of the scale. The level of medication the plaintiff takes is a consequence I can take into account, which was opined by Dodds-Streeton JA in Kelso v Tatiara Meat Company Pty Ltd,[32] where her Honour said:
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[32](supra) at paragraph [199]
87 This proposition was endorsed by Tate JA in Sutton v Laminex Group Pty Ltd.[33]
[33](2011) 31 VR 100 at paragraph [91]
88 I accept that the plaintiff continues to suffer pain as a result of the injuries she suffered at work and takes an appropriate level of medication. There is no suggestion by the doctors that her treatment will vary. In fact, Mr Miller said it was “possible” that the plaintiff will require surgical assessment treatment in the form of arthroscopic intervention. I accept that the treatment and medication the plaintiff takes is a consequence I can take into account. Applying the comments made by the Court of Appeal in Kelso v Tatiara Meat Company Pty Ltd,[34] as to pain for this plaintiff, I accept the consequence of pain is in the middle end of the range.
[34]ibid
89 In considering 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 her enjoyment of life.
Restrictions
90 The plaintiff’s evidence is that as a result of the pain and restriction in her right shoulder, she has difficulty lifting, pushing and pulling. She has particular difficulty lifting out from her body or above head height. She reported the difficulties to Mr Miller, who accepted that she would have ongoing restrictions in her right shoulder which would include no repetitive right arm actions, no use of the right arm above shoulder position and no lifting of weights weighing more than 5 kilograms. He said these restrictions are permanent and are work related. Mr Jones said that as a consequence of her right shoulder condition, there has been a reduction in the range of movement in her right shoulder, precluding her from high demand use of her dominant right arm, involving pulling, pushing and overhead use of her right hand.
91 I accept that this is a consequence which I can take into account in relation to her domestic and recreational activities. Given that the plaintiff’s employment in the past has involved physical work, I accept that these restrictions affect her ability to work which I will consider further in my reasons. I accept this consequence is at the middle of the range.
Domestic chores
92 The plaintiff’s evidence is that she has difficulty undertaking domestic chores. She does light housework and is limited to dusting. Her husband does the vacuuming and the heavier household duties. This was confirmed by Mr Menzies, who said he does the majority of the household duties, including cooking the meals, cleaning and washing. In the past her husband said they shared the household duties, which was confirmed by the plaintiff.
93 The plaintiff said she cannot lift heavy pans. She cannot use the vacuum cleaner as it is too heavy for her to pull. Since she injured her shoulder, she has not vacuumed at home. She said, on occasions, she vacuumed at work, but used a stick vacuum cleaner, which is lighter. She no longer hangs the washing on the line as this aggravates the pain in her shoulder. She used to scrub the floors and clean the bathrooms, but she no longer does this because of the shoulder pain.
94 She reported to Mr Miller that she had difficulty with heavier domestic activities which are now undertaken by her husband. Mr Miller accepted that she would have some reduction for heavy domestic activities as a result of her injury. The plaintiff’s evidence was that she and her husband did the shopping together so that she was not required to lift heavy bags. Mr Jones accepted that the plaintiff would suffer restrictions from a domestic perspective and would be reliant on her husband to hang out the washing and vacuum the house. I accept this is a consequence which I can take into account.
Sleep
95 The plaintiff’s evidence is that she has issues with sleeping at night as a result of shoulder pain. When she goes to bed at night she places a hot water bottle or heat pack on her neck and places a pillow down her side to assist with sleep. She regularly wakes at night and tends to get out of bed at times to take Panadol before returning to bed. The disrupted sleep leaves her irritable the following day. This evidence was supported by her husband. The plaintiff’s evidence was that she takes Diazepam 5 milligram medication to help her relax and to assist with sleep. In cross-examination, she agreed that her general practitioner had prescribed Diazepam prior to her work injury for stress and panic attacks. The plaintiff was unable to recall how long she was being prescribed Diazepam. She agreed that it was probably right that she had been prescribed Diazepam in January 2011 for sleep problems. She agreed that she had had sleep problems and anxiety for seven or eight years.
96 However, I note that the plaintiff reported to Mr Jones her use of Diazepam to help her to relax and to sleep because of the shoulder pain. He made no comment on the use of Diazepam and made no comment on any adverse psychological reaction suffered by the plaintiff.
97 I accept the plaintiff’s sleep is disrupted due to the shoulder pain. I accept that this is a consequence which I can take into account. I accept this at the low to mid range. I note that the plaintiff’s husband refers to this as a consequence. I accept that as a consequence, she has difficulty sleeping due to pain in her right shoulder.
Driving
98 The plaintiff’s evidence was that she struggles driving. If she drives long distances, she suffers increased pain. She now relies upon her husband to do the driving wherever possible.
99 In cross-examination, the plaintiff agreed that she could drive locally and that her husband had always done the driving for longer distances. Accordingly, I do not accept that the plaintiff’s driving has altered as a result of the work injury. As a result, this is not a consequence I take into account.
Gardening
100 The plaintiff’s evidence is that prior to the injury, she gardened at home, once a week, which she enjoyed. She mowed the lawns and did heavier gardening such as pruning. She now struggles to do the gardening due to her shoulder pain and misses the fact that she can no longer garden. She could not remember when she last mowed the lawns.[35] She said that she had not tried to mow the lawns because of the vibration of the lawn mower.[36] She said she could not prune the roses, which are above shoulder height, because of the pain; her husband now prunes the roses. The plaintiff said they had seven rose bushes.[37] The plaintiff said that she could pull weeds with her left hand, but said she did not do it often.[38] She did not dig in the garden because of her shoulder.[39]
[35]T28, L16-18
[36]T45, L12-16
[37]T44, L23 -24
[38]T45, L8-10
[39]T45, L5-6
101 Mr Miller accepted the plaintiff would have difficulty gardening, as did Mr Jones. He said she would suffer an inability to reach up sufficiently to be able to prune the roses or pull weeds with her dominant right hand.
102 I accept that the plaintiff is restricted in her ability to garden which is supported by the evidence of Mr Miller and Mr Jones. This is a consequence I can take into account.
Long stitch
103 The plaintiff’s evidence was that before the shoulder injury, she enjoyed doing long stitch. She would do it for many hours and it was her main hobby. She no longer can do any long stitching because it causes too much shoulder pain with the pulling of the needle and cotton. Given the movement of the right arm required in this activity and the medical evidence as to the restrictions, I accept that this is a consequence which I can take into account. I accept that this is in the middle of the range.
Grandchildren
104 The plaintiff’s evidence is that her eight-year-old granddaughter lives with her. She and her husband are the primary carers for their granddaughter, Mia. She has difficulty interacting and playing with her as she did in the past. This is a problem for her granddaughter and herself. The plaintiff said it upsets her. I accept this is a consequence I can take into account.
Work
105 The plaintiff started working in the Barwon Health laundry on casual basis in June 2001 and then became a full-time worker until the time of her injury in 2014. Prior to this she worked in various factory jobs in the Geelong area.
106 The plaintiff’s evidence is that she works as a community care worker, which involves attending at the homes of elderly clients and helping them with basic tasks such as showering, homecare and shopping. It is a job she enjoys very much. Due to her ongoing shoulder problems, she does not believe that she could cope with a full-time physical job. The plaintiff’s evidence was she cannot do more hours than she presently does.[40] If she was offered more hours than she is currently doing, she would not be able to increase her hours. She does not feel good about herself because she cannot do extra hours.[41] The plaintiff said she works on a casual basis. This is because there is only a limited amount of work available in this role and she is lucky to get ten hours per week. She said that work will often aggravate her shoulder pain.
[40]T47, L18-20
[41]T48, L2-5
107 The plaintiff reported to Mr Miller that she was currently working 15 hours per week, on a casual basis. Her work is significantly less physical and she copes with the work with ongoing symptoms. Mr Miller said the plaintiff will have ongoing restrictions in relation to her right shoulder which would include no repetitive right arm actions, no use of the right arm in the above shoulder position and no lifting of weights more than 5 kilograms. These restrictions are permanent. The plaintiff could not return to pre-injury duties on any significant full time or part-time basis. He said her limited duties as a personal care attendant are consistent with the right shoulder injury.
108 The plaintiff reported to Mr Jones that she continues to work ten hours per week, supervising the elderly. Mr Jones recorded no physical work involved. I accept that the plaintiff works between ten and fifteen hours as a community care worker, but working on a casual basis. She enjoys the work. It is less physical work than she has performed in the past. The hours she works are limited by the work available.
109 I accept that the plaintiff has ongoing restrictions in relation to the work she can perform, in terms of the number of hours she can work and the limited physical work she can perform. Given she has always performed physical work, I accept that this a consequence I can take into account which is at the higher end of the scale.
Campervan
110 The plaintiff’s evidence is that she and her husband had planned to do a trip around Australia in a campervan-style adventure as part of their retirement. It is an activity she would like to have done once Mia, her granddaughter, was independent. However, she cannot sit still for long distances due to the shoulder pain. I accept that this is a consequence I can take into account. I accept it is at the low end of the range.
Cardigans
111 The plaintiff’s evidence is that she struggles to wear a jumper because it involves putting the jumper up over her head and putting her arm into the sleeve of the jumper, above shoulder height. Now she wears cardigans because it is easier to feed her arm through a cardigan. I accept that this is a consequence I can take into account. I accept that it is at the low end of the scale.
Relationship
112 The plaintiff and her husband both said that prior to the work injury, they shared the responsibility for household duties. As a result of the work injury, the plaintiff’s husband has assumed the majority of the household duties including cooking meals, cleaning and hanging out the washing. The plaintiff assists but in a limited capacity. Both the plaintiff and her husband said that the plaintiff’s right shoulder injury has placed an enormous pressure on their relationship. The plaintiff said that she depends on her husband heavily and this has affected their relationship. I accept that this is a consequence which I can take into account. I accept it is in the middle of the range.
Conclusion
113 I accept that the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff, the evidence of her husband and the medical evidence. I accept that the plaintiff had a physically active life and her employment has been physical manual work. Now she is limited in the hours she can work and the type of work she can perform. For a person who has always performed manual work, this is notable.
114 I am satisfied that the plaintiff was involved in a work incident which, to this plaintiff, resulted in her experiencing symptoms of a physical nature. The consequences of her shoulder injury have impacted upon her life as she knew it before the work accident. She has suffered for four years and the medical evidence is guarded as to the future. I accept that the plaintiff’s shoulder injury is permanent.
115 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to her of her impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff may measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in light of the evidence.
116 I accept the right shoulder injury had consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.[42] In making this assessment, I have looked at the consequences to the shoulder injury alone.
[42]Humphries & Anor v Poljak [1992] 2 VR 129
117 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the injury suffered in the work accident.
118 I will hear the parties on costs.
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