Millist v VWA
[2020] VCC 1067
•28 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-06169
| Tammy Millist | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2020 | |
DATE OF JUDGMENT: | 28 July 2020 | |
CASE MAY BE CITED AS: | Millist v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1067 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left upper limb – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC Ms V Katotas | Zaparas Lawyers |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HER HONOUR:
1 Ms Millist, who is 44 years old and left-handed, seeks leave under section 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) to issue proceedings to recover damages for pain and suffering only in respect of an injury to her left shoulder sustained during the course of her employment between April 2014 and January 2015 with Dermatology and Skin Care Centre Pty Ltd (‘the employer’).
The issues
2 Although she suffered a dislocated left shoulder on 7 October 2009 when she tripped while at her doctor’s office, an x-ray taken the following day showed normal alignment of the shoulder and no abnormality. She says that she made a full recovery from that injury.[1]
[1]Plaintiff’s Court Book (‘PCB’), 2 [5].
3 The injury relied upon in her application is an aggravation of pre-existing, but asymptomatic, degenerative and constitutional changes in the left shoulder.
4 She says that from November 2014, she worked five days per week for the employer doing administrative work, often working overtime. She answered phones without a headset and typed for long periods of time, causing her to hold her neck and shoulder in awkward positions. She began taking Nurofen to manage her pain. She saw her doctor in early 2015, had ultrasound therapy and a week off work, followed by a steroid injection in her left shoulder joint, which improved her symptoms greatly, but only for a short time. By the end of January 2015, she was struggling to go to work and her employment was terminated by the employer.[2]
[2]PCB, 3 [11].
5 An MRI on 5 March 2015 showed significant left shoulder pathology, and she was prescribed a number of medications including Celebrex, Panadol Forte, Endone and Tramadol before being referred to an orthopaedic surgeon, Mr Eden Raleigh, who performed an arthroscopic labral repair on 18 August 2015. In spite of the surgery, her left shoulder pain persisted and she stopped work in February 2016. An MRI on 30 April 2016 revealed a frozen shoulder and she underwent hydrodilatation in August 2017 on the recommendation of Mr Raleigh. Her pain persisted, and in late June 2019 she was taking Aspro Clear and Maxigesic daily as well as Panadeine Forte, Mersyno Nights and Tramadol when the pain was very bad.
6 She says that she suffers constant pain in the left shoulder which extends into the left side of her neck causing regular headaches, and which impacts on her sleep, and requires regular pain medication. It interferes with her ability to type or write for long periods, go to the gym, dress, cook, vacuum, shop, sit for long periods, and do her handwashing.[3] It also affects her ability to engage in intimacy. She says that she has had to modify the types of employment she chooses and is currently undertaking a hairdressing apprenticeship. The plaintiff has decided that if she is self-employed running a hairdressing business, she will be able to limit the number of hours and types of tasks that she performs.
[3]PCB, 6-7.
7 The defendant says that the plaintiff’s left shoulder injury resolved after successful surgery in August 2015 and the hydrodilatation in August 2017 and that she has required no further treatment. The defendant relies on the optimism expressed by her treating surgeon, Mr Raleigh, to the effect that her prognosis was “excellent”,[4] and on the reports of her regular treating practitioner, Dr Roger Johnston, in October 2017, to the effect that she had completely recovered from her frozen shoulder and was fit to resume all normal activities, and in July 2020, to the effect that after hydrodilatation her further attendances upon him were unrelated to the left shoulder.
[4]PCB, 94, 98.
8 In the alternative, the defendant argues that the consequences flowing from the permanent impairment of the left shoulder do not meet the narrative test for serious injury. In this regard, the defendant made a number of submissions. First, that the plaintiff has had no active treatment of any kind since August 2017 and there is no suggestion that she will require further treatment in the future. Second, that Dr Mary Wyatt, occupational physician, on 17 June 2020 and Dr Johnston on 1 July 2020 have concluded that she is fit for her pre-injury work and for work as a hairdresser. Third, that her claim of daily pain requiring Panadeine Forte which she mainly obtains from her mother, rather than from her longstanding treating doctor, Dr Johnston, is at odds with the absence of complaints to him about her left shoulder pain and is at odds with her current capacity to undertake her duties as an apprentice hairdresser. This also raises questions about the credibility of her evidence as to the impact of her pain on her life. Finally, in spite of her evidence that she uses Panadeine Forte when she gets a headache and that the headaches are related to her left shoulder pain, there is no medical evidence to support the alleged connection between her left shoulder pain and her headaches.
The plaintiff
9 The plaintiff affirmed two affidavits in support of her application.[5] She gave evidence at the hearing and was cross-examined. No other witnesses were called. The parties each tendered a court book. I have considered the whole of the evidence as well as the parties’ submissions.
[5]PCB, 1-8, 31-33.
10 In her two affidavits, the plaintiff deposed to matters which may be summarised as follows. She is 44 years old, and left school after Year 10. She then worked with Coles Myer for about 15 years. She completed a Certificate II in Business Administration. She worked in medical administration from 2009. In 2009, she dislocated her left shoulder during a fall while attending her doctor. She had two weeks off work and some physiotherapy. She recovered well and did not experience ongoing pain or restriction, and she was able to continue working full-time.
11 In 2013, she commenced a Diploma of Nursing but could not afford to study while working full-time.
12 She commenced working four days per week for the employer as a medical receptionist in April 2014 and soon graduated to full-time hours. Her hours and duties (which involved using the telephone, attending patients, typing, and booking appointments) increased significantly in late 2014 when staff numbers decreased. She enjoyed her work and was able to do domestic work at home while supporting her two children. She was social and active and went to the gym three or four times per week to do weights and sit ups, and to use the treadmill. She used to live near a lake and walked an hour every second day.
13 By mid-December 2014, she was having left shoulder and neck pain at work, which she managed by using heat packs and taking Nurofen. By the end of that month, she was finding it hard to drive. By early 2015, the painkillers were not helping so she saw her doctor, had ultrasound therapy, took off work for one week to rest, and took anti-inflammatory medication, but her symptoms did not improve. She had a steroid injection, physiotherapy, and took medication, without relief. She then saw Mr Raleigh and underwent an arthroscopic labral repair in August 2015. The surgery improved the stability of her left shoulder, but not the left shoulder pain.
14 The plaintiff lodged a claim for impairment benefit dated 31 May 2017.[6] On 11 May 2018, the insurer accepted liability for the plaintiff’s left shoulder injury but rejected liability for her right shoulder and neck injuries.[7] Her whole person impairment was assessed at 4%.[8]
[6]PCB, 136.
[7]PCB, 137.
[8]PCB, 138.
15 After recovering from the surgery, she began working as a medical receptionist for a different employer. She found it difficult to manage her increasing left shoulder and neck pain, and she had to stop work completely in February 2016. Later that year, she started a business administering a medical clinic, working up to 38 hours per week in late 2016. The work was flexible and allowed the plaintiff to work between the office and home. This arrangement suited her because of her left shoulder and neck pain, and headaches and migraines.
16 She underwent a hydrodilatation procedure in August 2017, much later than intended due to a dispute with the insurer about funding. This procedure improved her symptoms “in part”, but her neck and left shoulder pain continued.[9]
[9]PCB, 4.
17 Her business relationship with her business partners deteriorated, and she resigned from the business in March 2019.[10] In mid-2019, the plaintiff and her partner became shareholders in a hairdressing salon where the plaintiff began working as an apprentice hairdresser. As at 24 July 2019, she was struggling with pain in both shoulders, as she was favouring her right shoulder to protect her left side. On the left side, she had an ongoing ache in the left shoulder joint which extended into the left side of her neck. When she had done too much, she also experienced a throbbing pain in the left shoulder, as well as a neck ache, and then would get a migraine. She suffered migraine headaches about three times per week, during which she would take painkillers, drink a lot of water, and keep the room dark.
[10]PCB, 5.
18 She suffered a reduction in the range of movement of her left shoulder and arm. She was restricted by pain and fear of further dislocation. She was waking frequently during the night due to pain and discomfort, especially if she slept on her left side. She had to adjust the way she put on her bra to avoid reaching behind her back, and let her hair dry naturally to avoid using the hairdryer. She was receiving help at home from her partner and her children with hanging out the washing, mopping and vacuuming. She was cooking less than she used to. When shopping, she would carry heavy items on her right side to avoid an increase in left shoulder pain. She had difficulty sitting in one position too long. When working on the computer, her left shoulder and neck pain would flare up. Her left shoulder pain would also worsen if she used her dominant left hand to write or type on the computer for long periods. She was unable to return to the gym because it aggravated her left shoulder and neck pain. Her weight increased because of her reduced activity. She had gastric sleeve surgery in August 2017 and lost weight. She tried to walk a few times per week but found walking long distances aggravated her left shoulder and neck pain. She tried skiing once but injured her knee. Her sex life was also affected by her left shoulder and neck injury.
19 As at 8 July 2020, the plaintiff stated that she continues to suffer an ongoing ache in her left shoulder joint which extends into the left side of her neck, as well as a throbbing pain in the left shoulder if she does too much with her left arm.[11] She continues to experience regular headaches. She has no plans for further treatment. She manages her shoulder pain by taking between about two to four tablets of Panadeine Forte every day. Since affirming her first affidavit, the plaintiff has separated from her partner and moved in with her mother. Her mother helps her with washing, mopping, vacuuming and cooking. Apart from that, the matters contained in the first affidavit continue to be relevant.
[11]PCB, 31-32.
20 In cross-examination at the hearing, the plaintiff said that she is taking two Panadeine Forte tablets, two to three times per week. She insisted that this is not just for her headaches, and also said that her headaches are related to her left shoulder pain.[12] She said that she has obtained scripts from Dr Goweid Goweid at Aghapy Medical Centre for Panadeine Forte, and had obtained scripts about four or five times this year.[13],[14] However, she also obtains Panadeine Forte from her mother, who has her own scripts for that medication.[15] The plaintiff said that Dr Johnston was reluctant to prescribe her Panadeine Forte.[16] She said that she did not state in her affidavits that she was getting Panadeine Forte from her mother because she did not want to get her mother into trouble.[17] She said that she did not recall if she had told any doctors if she was getting this medication from her mother.[18]
[12]Transcript of Proceedings, Millist v VWA (County Court of Victoria, CI-19-06169, Judge Davis, 15 July 2020) (’T’) 10.6-28.
[13]T11.12-19.
[14]Records from the Aghapy Medical Centre were examined by the parties, and revealed scripts from that practice for Panadeine Forte being given to the plaintiff on seven occasions in 2015, four occasions in 2016, four occasions in 2017, six occasions in 2018, and one occasion in 2020.
[15]T9.18 and T11.2.
[16]T12.7.
[17]T29.24.
[18]T29.30.
21 The plaintiff agreed that she has had recent mental health issues, and that some of her personal stressors have contributed to her sleep problems.[19] She insisted that left shoulder pain continues to interfere with her sleep.[20] She agreed that she has had no further treatment for her left shoulder since the hydrodilatation in 2017 but said that she had been told she may require further treatment by way of hydrodilatation. She agreed that none of her treating or assessing doctors had recommended or envisaged further surgery.[21] She denied that working as a hairdresser is more physical work than doing medical administration, and insisted that, as part-owner of a salon, she would be able to choose her hours and tasks.[22]
[19]T15.22.
[20]T16.2.
[21]T21.9.
[22]T24.8-20.
22 In re-examination, the plaintiff said that her left shoulder pain wakes her a few times every night.[23] She gets up, takes Panadeine Forte, stays up for up to an hour, then sleeps a few hours before she is again woken by left shoulder pain.[24]
[23]T31.18-20.
[24]T31.26-T32.6.
Expert evidence
23 On 23 June 2015, Mr Eden Raleigh, orthopaedic surgeon, wrote to Dr Roger Johnston, the plaintiff’s longstanding general practitioner, noting that the plaintiff had dislocated her left shoulder a second time in 2014 and had ongoing instability and recommended an arthroscopic labral repair.[25] After the procedure, Mr Raleigh reviewed the plaintiff on 3 September 2015 and noted that her wounds had healed, she was moving well and having physiotherapy.[26] He felt that she could look for new work.
[25]PCB, 49.
[26]PCB, 50.
24 On 27 September 2015, Mr Raleigh reported to the plaintiff’s solicitors that it was likely that the labral tear occurred in 2009 and that plaintiff’s work was a contributing factor in the left shoulder dislocation in 2014.[27] He felt that her prognosis was “excellent”.[28]
[27]PCB, 93.
[28]PCB, 94.
25 On 1 March 2016, Mr Raleigh saw the plaintiff who complained of “a bit of a capsulitis type pain”.[29] He felt there was no problem with instability or range, just with external rotation and elevation. On 10 May 2016, he felt that the MRI scan of 30 April 2016 was “completely normal”, but that a hydrodilatation would be “very helpful”.[30] On 2 August 2016, he reported that he was awaiting the results of the hydrodilatation, which was due to have been performed in June 2016.[31]
[29]PCB, 51.
[30]PCB, 52.
[31]PCB, 98.
26 The plaintiff saw a number of other general practitioners at the same centre as Dr Johnston and at other locations. In particular, Dr Peter Louis saw her on 1 March 2015 in relation to her “left shoulder pain, clicking sounds, instability and limited movement”.[32] After her surgery in August 2015, she continued to experience left shoulder pain. Dr Louis prescribed medication and referred her to physiotherapy and for surgical follow-up.[33]
[32]PCB, 87.
[33]PCB, 91.
27 Dr Peter Boys, orthopaedic surgeon, provided a report dated 30 March 2016 to the employer’s insurer.[34] He noted a history from the plaintiff that after her left shoulder dislocation in 2009, which was put back in place under sedation, she had physiotherapy, her pain resolved and she regained movement in the left shoulder with “no ongoing instability symptoms at that time”.[35] She reported the onset of left shoulder and neck soreness in late 2014, which was treated with a cortisone injection. She was doing reception duties and typing during that period.
[34]Defendant’s Court Book (‘DCB’), 4.
[35]DCB, 6.
28 She felt a “sensation of subluxation” of the left shoulder in March 2015 when getting out of bed.[36] This led to the MRI and labral repair in August 2015, followed by physiotherapy for four weeks. She returned to work but reported persistent difficulties with rest pain. She was taking Panadeine Forte and Celebrex daily, and she was awaiting specialist review. She complained of deep-seated left shoulder ache extending to the left trapezius and left side of the neck. She was able to lie on her left side in bed and was able to perform all routine domestic activities. On examination, Dr Boys found limitation in shoulder abduction.
[36]Ibid.
29 Dr Boys concluded that the plaintiff’s condition reflected the natural history of the 2009 injury, and not a work-related aggravation or acceleration associated with employment as a medical receptionist in 2014.[37] She was still working full time. He recommended use of simple analgesia and over the counter anti-inflammatory medication in association with local strengthening exercises. He felt that no further treatment was needed.
[37]DCB, 9.
30 After being provided with some further documents, Dr Boys reaffirmed his opinion on 5 September 2016.[38]
[38]DCB, 15.
31 Mr Ian Jones, orthopaedic surgeon, reported to the defendant’s solicitors on 10 July 2017 in the context of the WorkCover insurer’s denial of the plaintiff’s claim for hydrodilatation.[39] He noted a complaint by the plaintiff of “constant ache” in the left shoulder “extending into the left shoulder girdle and up into the soft tissues of the left side of her neck. The latter symptoms are particularly associated with a migraine, which can take the form of headache and vomiting, lasting up to 2-3 days”.[40] The shoulder pain was exacerbated by sleeping on her side or trying to lift her arm overhead. She had to brush her hair with her right hand. She also complained of neck stiffness. She was able to walk but found that long walks aggravated her neck and left shoulder. She was able to drive, but mainly used her right arm. She was taking four Panadeine Forte tablets per day, and Endone weekly if her left shoulder pain was very bad. On examination, Mr Jones found limitations of left shoulder movements.
[39]DCB, 20.
[40]DCB, 20.
32 Mr Jones noted that he was “unable to establish any history or specific injury or incident to account for the onset of her shoulder symptoms at that time”[41] and concluded that her left shoulder symptoms were not work related, and that the plaintiff was capable of returning to her pre-injury duties or to suitable employment “which does not require extreme use of her dominant left arm”.[42]
[41]DCB, 22.
[42]DCB, 23.
33 On 14 August 2017, Mr Bruce Love, orthopaedic surgeon, reported to the plaintiff’s solicitors that the plaintiff complained of ongoing stiffness and left shoulder soreness as well as left sided neck pain and some associated headaches. Mr Love concluded that, given the five year interval between the first dislocation and the onset of further symptoms, that “it is [the] events of 2014 that have produced the symptoms from which she suffers” and the requirement for treatment in the form of the proposed hydrodilatation.[43]
[43]PCB, 113.
34 On 17 August 2017, Mr Gavin Weekes, pain specialist, reported to the plaintiff’s solicitors his conclusion that the plaintiff was asymptomatic up until her workplace activities exacerbated her underlying left shoulder condition, and that it was appropriate for her to undergo hydrodilatation.[44]
[44]PCB, 120.
35 On 26 October 2017, Dr Johnston wrote to the defendant’s insurer and confirmed that the plaintiff had “completely recovered from her [left] frozen shoulder following the hydrodilatation procedure [in] late August 2017” and was fit to resume all normal activities.[45]
[45]PCB, 46.
36 On 19 September 2018, the Medical Panel assessed the accepted left shoulder injury. The Panel was told by the plaintiff that after recovering from the left shoulder dislocation in 2009, she had no pain or limitation of movement of the left shoulder.[46] The plaintiff described gradual onset of left shoulder pain in late 2014, which she attributed to the reception and typing duties she was undertaking. She complained to the Panel of “intermittent pain in the left shoulder, which occurs only on some days and radiates into the left side of the neck, causing headaches”.[47] She was taking Celebrex and Panadeine Forte. On examination, the Panel noted wasting of the left deltoid and supraspinatus muscles. Range of motion of the left shoulder was moderately reduced on flexion and abduction, and mildly reduced on extension and internal rotation. The Panel concluded that the plaintiff was suffering from “persisting dysfunction of the left shoulder and surgical scarring, as a consequence of a Hill-Sachs lesion and labral tear, treated surgically, in the context of a pre-existing anterior dislocation, relevant to the accepted left shoulder injury”.[48] The Panel also concluded that the plaintiff had suffered some loss of use of the left arm as a result of the accepted left shoulder injury.
[46]PCB, 103.
[47]PCB, 104.
[48]PCB, 105.
37 On 22 October 2019, Dr Mary Wyatt, occupational physician, reported to the defendant’s solicitors that after dislocating her left shoulder in 2009, she recovered and did not have continued left shoulder complaints.[49] The plaintiff’s work in medical administration in 2014 involved moving between three facilities within a medical clinic, a lot of phone work which involved holding the handset up to her left ear, as well as audiotyping after hours. She developed pain in the neck and shoulder. From then on, her left shoulder pain was ongoing. She received short-term relief from a cortisone injection. She had persistent pain after her left shoulder surgery in August 2015 and only received about 50% relief from the hydrodilatation she underwent in 2017.
[49]DCB, 24.
38 The plaintiff told Dr Wyatt that her left shoulder was sore doing hairdressing, and that there was more loading on that shoulder, but that it was better than administrative work because she could move around more. She said that she relied more on her right shoulder. She described soreness in the left shoulder, which led to a headache when the pain was more severe, which interrupted her sleep, and which was exacerbated by repetitive left arm activities such as heavy lifting, blow-drying hair at work, and sleeping on her left side. She did not have to do much domestic work and the children were doing the cooking.
39 Dr Wyatt noted on examination that range of motion at the left shoulder was restricted, with loss of approximately one-third normal range of abduction and forward flexion at the left shoulder, and a loss of about 30 degrees of external rotation.
40 Dr Wyatt concluded that the plaintiff’s problems are “largely the consequence” of her dislocated shoulder in 2009.[50] She also noted that “[p]lausibly, her work activities in 2014 contributed to symptoms at her left shoulder”.[51] Dr Wyatt noted that she had no particular hobbies which were demanding on the shoulder, and that she does not need to do cleaning as her partner paid a cleaner. Dr Wyatt also noted that the plaintiff continued to be active with her work and studies, and that her “social activities have not been significantly impaired long term”.[52] Dr Wyatt noted that the plaintiff was managing with simple analgesics as needed and concluded that no further treatment was required. Moreover, she concluded that the plaintiff was fit for work that allows her to change her posture intermittently and did not involve heavy lifting above shoulder height. She noted that the plaintiff was coping with hairdressing and makeup activities, which were demanding on the shoulders. She would be fit to do administration duties, retail work or her current hairdressing work.
[50]DCB, 30.
[51]Ibid.
[52]DCB, 31.
41 In her report dated 22 June 2020, Dr Wyatt noted that, when seen on 17 June 2020, the plaintiff’s situation with respect to the left shoulder has not materially changed, with continued soreness which is aggravated by repetitive activities, overhead activities and leaning (or sleeping) on the left side.[53] She had separated from her partner and was staying with her mother. She was currently working reduced hours in a salon two or three days per week due to the COVID-19 pandemic, washing and blow-drying hair. Her left shoulder had been less bothersome since she stopped doing the hairdressing role over the past six weeks, “but her headaches have become more troublesome”, occurring daily.[54] She takes migraine medication but generally finds that they are helped with two Panadeine Forte at night. She continues to rely more on her right shoulder and has developed some soreness there as well.
[53]DCB, 33.
[54]DCB, 35.
42 Dr Wyatt again diagnosed “residual soreness following stabilisation surgery and a labral repair for shoulder dislocation. There is associated neck ache, not uncommonly seen with shoulder problems, which sounds to have been substantially compounded by stress and tension”.[55] These stresses related to the breakdown of her relationship with her partner, her difficult accommodation issues, and her dispute about the business. Dr Wyatt felt that psychological factors may contribute to her current headaches but that these do not influence the left shoulder. Dr Wyatt reaffirmed her earlier conclusions concerning work capacity.
[55]DCB, 37.
43 On 1 July 2020, Dr Johnston wrote to the plaintiff’s solicitors confirming that the plaintiff had no further issues with her left shoulder between recovering from the left shoulder dislocation in 2009 and 2014, when she reported “spontaneous dislocation at work”.[56] He noted that after the hydrodilatation there were “no significant attendances since then relating to shoulder. Many visits subsequently relating to unrelated emotional issues”.[57] He concluded that no further treatment was required, that she was fit for her pre-injury work as her condition had “fully resolved”, and that no further problems were anticipated “provided patient does not overload that shoulder with heavy manual work”.[58]
[56]PCB, 47.
[57]Ibid.
[58]Ibid.
Findings and reasons
44 There is no issue and I therefore find that as a result of her employment, the plaintiff suffered an injury to the left upper limb by way of aggravation of pre-existing but asymptomatic degenerative and constitutional changes in the left shoulder. I am satisfied on the weight of the evidence that her employment contributed to the current permanent impairment of the left upper limb.
45 I found the plaintiff to be a straightforward witness and I accept her evidence concerning the pain, medication regime, limitations and restrictions associated flowing from the permanent impairment of the left shoulder.
46 In spite of the optimism of the treating general practitioner (Dr Johnston), orthopaedic surgeon (Mr Raleigh), and Mr Jones that the plaintiff’s left shoulder injury resolved after surgery and that her prognosis was excellent, it is clear from the subsequent history given by the plaintiff, and confirmed by Mr Love, Mr Weekes, the Medical Panel, and Dr Wyatt, that the plaintiff’s left shoulder condition did not resolve after surgery and hydrodilatation, but rather that the plaintiff has suffered a permanent impairment of the function of the left upper limb as a result of the workplace injury in 2014.
47 Having considered the whole of the evidence, I am satisfied that the plaintiff’s account of the pain and suffering consequences of her left shoulder impairment is very consistent with the accounts given by her to various doctors and treating and examining specialists since 2015. The plaintiff suffers from daily left shoulder pain which, understandably, according to Dr Wyatt, often results in headaches and which wakes her each night. She takes four Panadeine Forte tablets two to three times per week for her pain and those headaches. Her range of movement of the left shoulder is restricted. She has trouble raising her left arm above her head or reaching behind her back, and she has had to modify her activities of daily living. She cannot wash her own hair or blow dry it. She cannot use her dominant left hand to type, write or use the computer for long periods. Her left shoulder pain is aggravated by leaning or sleeping on her left side. Nor can she walk for long periods as she used to. She used to go to the gym regularly but no longer attends as it aggravates her left shoulder pain. She requires help with domestic activities such as washing, cooking, vacuuming. She is only 44 years old and, apart from possible further hydrodilatation, no further treatment is expected to assist her, and she will have to live with the above pain and suffering consequences for the rest of her life.
48 Whilst I acknowledge the medical evidence from Dr Wyatt to the effect that she remains fit for work which allows her to change her posture intermittently and does not involve heavy lifting above shoulder height, including administration duties, retail work, or in hairdressing, I accept the plaintiff’s evidence that she considers that as a part-owner of a salon she will be able to work within the limitations placed on her by her left shoulder pain and restrictions.
49 On the whole of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s permanent impairment of the left upper limb are at least very considerable when compared with other cases in the range of permanent impairments of the upper limb.
Conclusion
50 Leave is granted to the plaintiff to issue proceedings for pain suffering only in respect of the injury to the left upper limb suffered during the course of her employment with the employer.
51 I reserve costs.
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