Mitchell v Roy Morgan Research
[2013] VCC 1295
•12 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00938
| SHARON MITCHELL | Plaintiff |
| v | |
| ROY MORGAN RESEARCH PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 – 28 June 2012 | |
DATE OF JUDGMENT: | 12 July 2012 | |
CASE MAY BE CITED AS: | Mitchell v Roy Morgan Research Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1295 | |
REASONS FOR JUDGMENT
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Catchwords: Section 134AB(16)(b) of the Accident Compensation Act1985 (Vic) – Whether injury suffered before or after 20 October 1999 – Injury to right and left shoulder – Whether aggregation possible – Whether serious injury – Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 – Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C.W. Harrison SC with Mr J.P. Brett | Arnold, Thomas & Becker |
| For the Defendant | Mr T.J. Ryan | Thomsons Lawyers |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for the recovery damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) in respect of injuries to the plaintiff’s neck and shoulders sustained by her during the course of her employment with the defendant between 20 October 1999 and December 2006. The claim is for pain and suffering damages only.
2 The main issues in this case are:
(a) Whether the plaintiff has demonstrated that her injury arose in the course of her employment on or after 20 October 1999;
(b) Whether it was open to the plaintiff to “aggregate” the injury to each shoulder;
(c) Whether the plaintiff has failed to excise the psychological or psychiatric consequences of the injuries; and
(d) Whether the plaintiff has suffered a serious injury as defined under the Act.
Background
3 The plaintiff was born on 23 March 1961. She completed Year 12 and soon after leaving school commenced employment with the defendant. She worked as a full-time data entry operator and cleaning data until she left work to give birth to her only child, Nicole, who was born on 7 August 1993.
4 The plaintiff was off work for about 18 months after the birth of Nicole and returned to work in about October 1994. When she returned to work, she worked part-time, three days a week, seven hours per day, a total of 21 hours per week.
5 The plaintiff continued to work in data entry until in or about 1991 when she changed from the data entry department to work in the coding department. The plaintiff made this change from data entry to coding so she could continue to work three days a week.
6 In her first affidavit, the plaintiff described the work in data entry as being “highly repetitive”. It was always busy so she was constantly working. Data entry involved turning pages with her left hand and entering data on a keyboard with her right hand.
7 The coding department was also very busy and the work was repetitive and constant. The plaintiff’s work in this department involved her turning pages with her left hand and writing on those pages with her right hand to make corrections. In both departments she would take a 15 minute break in the morning and one hour to 45 minutes for lunch.
8 In approximately August 2004, the plaintiff’s left shoulder started playing up and towards the end of 2006, she started to notice similar symptoms in her right shoulder.
9 On 28 August 2004, the plaintiff saw Dr Mariola Petrovic, her GP for about 15 years, complaining of a painful left shoulder. Dr Petrovic ordered an x-ray and ultrasound and informed the plaintiff that she had bursitis.
10 On the advice of her GP, the plaintiff informed her employer about her symptoms in or about October 2004. It was arranged for her to see Mr Peter Kudelka, an orthopaedic surgeon. She first saw him on 8 November 2004.
11 The plaintiff lodged a WorkCover claim on 21 June 2005. At this time, she had a certificate of capacity from her GP saying that she was fit only for modified duties and light duties, with no heavy lifting and no repetitive movement of the upper limb.
12 The plaintiff claims, however, that her employer repeatedly ignored the restrictions which her general practitioner had set out in the certificates of capacity. On about 2 July 2006, the certificate of capacity from her general practitioner restricted her work hours to 14 hours per week. From that date, she continued to perform her usual duties in the coding department but worked 14 hours a week, seven hours on Mondays and seven hours on Fridays.
13 This continued until May 2006, when the defendant finally agreed to change the plaintiff’s duties. In the morning, her duties were the usual duties in the coding department. After morning tea, however, she would work in the mail room while after lunch she returned at first to coding and then eventually to scanning work.
14 On Friday 8 December 2006, the defendant informed the plaintiff that they could not provide her with non-repetitive work. They told her that they would provide her with a good reference and that she should try to find work elsewhere. This caused her to be upset and stressed. On 13 December 2006, her GP certified her as totally unfit for all forms of work. She has not worked since then.
15 The plaintiff made a claim for weekly payments and payment of medical and like expenses, which was accepted by WorkCover. She received weekly payments of compensation up until March 2008.
Treatment
16 The plaintiff has had treatment in respect of the injury from Dr Petrovic, her GP, Mr Peter Kudelka, orthopaedic surgeon (from 8 November 2004 – 16 October 2006) and from Mr Stephen Doig, orthopaedic surgeon (from 9 January 2007 – May 2012). Mr Doig gave her numerous cortisone injections in the left shoulder and one in the right shoulder and the wrist. The plaintiff has also had physiotherapy treatment from Ms Shelley Matthews at Oak Park and treatment from Ms Alison Eddy, a psychologist, of Strathmore Health Group.
Radiology
17 The radiology examinations concluded as follows:
· An x-ray of the plaintiff’s left shoulder on 23 September 2004:
“Conclusion: Subdeltoid bursitis and limited external rotation suggestive of adhesive capsulitis.”
· MRI of 26 November 2006 of the left shoulder
“Conclusion: Low grade tendinopathy of the supraspinatus tendon laterally down-sloping acromion, no spur rotator cuff intact.”
· MIR of 29 September 2006 of the cervical spine
“Conclusion: Essentially a normal study with no explanation for the pain evident.”
· MIR of 29 September 2006 of the right shoulder
“Conclusion: Evidence of rotator cuff modest information possible subacromial subdeltoid bursal inflammation. No suprasspinatus tear.”
Plaintiff’s medical reports
18 The plaintiff relied, in particular, on the reports of her treating GP, Dr Petrovic, and the treating specialists, Mr Doig and Mr Kudelka. There were also reports from Ms Eddy who saw her for depression and Dr Stephenson who took over from Dr Petrovic when she ceased work due to ill health.
i) Dr Mariola Petrovic
19 On 27 April 2009, Dr Petrovic reported that:
“Mrs Mitchell presented to me for medical consultation on 28 August 2004 complaining of painful left shoulder. I ordered x-ray and ultrasound of her left shoulder which revealed subhyoid bursitis and limited external rotation suggestive of adhesive capsulitis.”
20 In Dr Petrovic’s opinion, during the plaintiff’s employment with the defendant, she had “sustained neck, left and right shoulder injury and developed symptoms of depression secondary to chronic pain syndrome”.
21 The plaintiff’s work-related injury could be permanent, and she was currently incapacitated for any kind of employment. In addition, her condition might deteriorate due to aging of the musculoskeletal system.
22 Dr Petrovic reported that she had referred the plaintiff to Mr Doig for a further opinion and also to Mr Kudelka for assessment and management of her work-related left shoulder injury. In addition, for depression she had referred the plaintiff to a psychologist, Mrs Alison Eddy.
23 On 3 February 2011, Dr Mariola Petrovic reported that:
“Mrs Mitchell is suffering from depressive symptoms of chronic pain syndrome caused by her work-related injuries sustained during her employment Morgan Research Centre. Her depressive symptoms developed after her neck and left and right shoulder injuries at work. Her depression is caused by chronic pain of her work-related injuries”.
ii) Mr Stephen Doig
24 Mr Stephen Doig, an orthopaedic surgeon, saw the plaintiff regarding her left shoulder on a number of occasions in 2008. The last occasion he saw her was on 17 February 2009. On 3 April 2009, he reported that:
“From a clinical point of view she has bilateral subacromial bursitis. The history she gave me as delineated in my initial report would indicate that this may well have been secondary to her job and that she worked in data entry and she had a very repetitive job which she found irritated her shoulders. There was no specific injury as far as her shoulders were concerned but it was more a gradual process type injury. As a consequence of the diagnosis I consider it is one of subacromial bursitis which at this stage is under reasonable control. Her employment was a significant contributing factor to her current situation.”
25 While at one stage, Mr Doig had felt that the plaintiff would need surgery, given that she had “considerably improved”, he no longer thought that she needed surgery. However, there was still a possibility that she would deteriorate in the future, particularly if she did any more repetitive work.
iii) Mr Peter Kudelka
26 There were nine reports from Mr Kudelka. In his first report on 8 November 2004, Mr Kudelka found that:
“Examination of the cervical spine showed slight restriction of rotation to the left and natural flexion to the right suggesting some mid cervical spondylitis with irritation of the nerves radiating towards the left shoulder, probably at the C5 level. The shoulder itself moves quite well and possibly the slight swelling of which she complains relates to a mild bursitis” (PCB p. 65).
27 On 17 October 2005, Mr Kudelka reported that:
“Clinically, her neck and shoulders move well but no doubt she has rotator cuff pathology in the left shoulder causing the symptoms shown by the previous ultrasound a year ago showing bursitis” (PCB p. 66).
28 On 30 January 2006, he reviewed the plaintiff and reported that she still had some discomfort in both the left and now right shoulders but was prepared to keep working on reduced hours basis at her clerical part-time job at Roy Morgan research (PCB p. 67).
29 On a further review of the plaintiff on 11 September 2006, Mr Kudelka reported that the plaintiff was still managing to work fourteen hours a week but not only has persistent pain in the left shoulder but is now feeling pains in the right shoulder, some aching and stiffness in the neck and has headaches (PCB p. 68).
30 In his report of 1 December 2006, Mr Kudelka diagnosed the plaintiff’s injury as being to “the rotator cuff muscle with degenerative change in the left shoulder”. He considered that the nature of her employment was one of the aggravating features of the age-related degenerative changes in her left shoulder and that it was a significant contributing factor to her symptoms. With respect to her work capacity he thought that it was likely that she would be able to continue part-time restricted duties indefinitely (PCB p. 70).
31 In his final report of 15 January 2007, Mr Kudelka’s diagnosis was much the same as the one above, and he said:
“Inasmuch as she has worked for Morgan Research for some twenty –six years, I would regard the patient as having a partial permanent impairment with respect to either shoulder, in part due to age and constitution factors. Nevertheless this partial impairment carries a contribution from her period of employment which is a factor in her contributing symptoms”.
iii) Ms Alison Eddy
32 Alison Eddy, on 28 July 2012, reported:
“Mrs Mitchell appears to be suffering from symptoms of distress, depression, anxiety and stress secondary to the physical injuries sustained at work in 2004”.
iv) Dr Victoria Stephenson
33 On 14 September 2011, while Dr Stephenson was unable to comment on the plaintiff’s original injuries, she stated that:
“I have had Sharon as a patient since 11/02/11. There has been no change in her clinical condition since then. She has regular physiotherapy to help with pain and sees a psychologist to help with managing pain, depression and anxiety. She currently has chronic pain issues.”
Medico-legal reports
The medico-legal reports relied on by the plaintiff were from Mr Miller, an orthopaedic surgeon, and Dr Sutcliffe, an occupational physician.
(i)Mr Russell Miller
34 In his report of 2 August 2010, Mr Miller was of the opinion that the plaintiff’s bilateral shoulder problems were suggestive of rotator cuff syndrome and probable capsulitis. The prognosis was only fair. He considered that it was likely that her work, which involved repetitive arm actions over a protracted period of time, had led to the development and evolution of an overuse syndrome affecting essentially the shoulders, elbow, forearms and wrist. In his opinion, there was a significant ongoing work-related component and ongoing conservative treatment was appropriate.
35 With respect to her work capacity, Mr Miller was of the opinion that the plaintiff was not fit for her pre-injury duties. In addition, that she could not perform work that involved repetitive arm actions with either the left or right upper extremity and would have weight restrictions of two kilograms. These restrictions were permanent and work-related.
36 Mr Miller’s diagnosis and prognosis with respect to the plaintiff’s cervical spine was that she had an aggravation of degenerative disease. She had significant ongoing symptoms and the prognosis was only fair.
37 In his report of 21 November 2011, Mr Miller’s diagnosis was the same as in his earlier report, except that he now believed that:
“the wide spread in tissue pathology in the left and right upper extremities reflect to a large extent an overuse syndrome and development of secondary chronic pain syndrome and the prognosis for this was fair/poor” (PCB p. 62).
38 On 16 April 2012, he reported:
“In relation to both shoulders, I believe she has problems with both shoulders and has rotator cuff syndrome in both shoulders and probable capsulitis affecting both shoulders and I note the ultrasound of the left shoulder suggested capsulitis and the MRI of the right shoulder suggested tendinopathy”.
39 However, the defendant relied on his opinion that the plaintiff had also suffered an adverse mental state rejection and that she had some features of an overuse syndrome and of a secondary chronic pain syndrome which complicated the assessment and treatment of her condition.
ii) Dr Helen Sutcliffe
40 In her medico-legal report of 30 July 2011 (PCB p. 88f), Dr Sutcliffe was of the opinion that the plaintiff had sustained onset and aggravation of left shoulder subacromial bursitis as a result of the duties she performed in her job where she performed turning of pages with her left hand on a repeated basis. In addition, that she had developed left shoulder supraspinatus tendinopathy with persisting pain.
41 While Dr Sutcliffe accepted that the plaintiff had also developed right shoulder possible subacromial bursitis, she reported that there was no evidence of that on examination now. With respect to the plaintiff’s neck, Dr Sutcliffe’s opinion was that she has sustained a musculologamentous injury to the left side of the neck region with persisting pain.
42 The plaintiff’s conditions had stabilised and she continued with limitation of function of the left shoulder which would continue into the future. She had no capacity for her pre-injury work but could work part time in selected clerical duties for 4 hours a day three hours a week.
The defendant’s medical reports
i) Mr Rodney Simm
43 In his report of 24 August 2011, Mr Simm reported that the plaintiff presented as an “entirely genuine person” and he believed that:
“She did experience symptoms in the shoulders while undertaking work duties with her upper limbs. The only explanation for this, considering the light nature of her work which involved use of her arms close to her body and below shoulder height, is that there was some symptomatic exacerbation of underlying constitutional bursitis”.
44 However, the defendant relies, in particular, on Mr Simm’s opinion that:
“On cessation of employment one would have expected the work-related component to also cease. It is relevant that she now presents with non-specific bilateral shoulder pain with no clinical signs of residual impingement from bursitis and no other clinical signs of rotator cuff dysfunction. I would recommend assessment by a psychiatrist.”
45 While the plaintiff relies on the fact that Mr Simm, the orthopaedic surgeon who most recently examined the plaintiff, also said in his report that the plaintiff “did not present with evidence of functional overlay or exaggeration.”
46 With respect to the plaintiff’s work capacity, Mr Simm was of the opinion that she had a work capacity for suitable employment, including the employment options which were listed in an enclosed Employment Capacity Analysis. However, he was also of the opinion that she would need some flexibility with sitting and standing because of “some increase in her low back pain since she ceased work”.
ii) Dr David Weissman
47 The defendant also tendered and relied on Dr Weissmann’s report to the plaintiff’s solicitors of 21 October 2011. He was of the opinion that the plaintiff:
“Came across as a genuinely dedicated, conscientious, diligent, hardworking, loyal person and employee who loved her work. She developed mild to moderate depressive and anxiety symptoms including worry and stress as a consequence of her work, pain and injuries, and, in particular, her chronic pain, losing her job, the loss of her independence and the perceived manner in which her pre-injury employer and insurer have allegedly managed her claim” (PCB p. 56).
iii) Recovre Group report
48 The defendant obtained a report from Recovre, dated 11 June 2011. In this report, it was accepted that the plaintiff had medical restrictions including avoiding repetitive use of both upper limbs, repetitive work at or above shoulder height and lifting in excess of 2kg. The following jobs were recommended as being suitable; receptionist, customer service officer, general clerk and call centre operator.
The injury and whether it occurred on or after 20 October 1999
49 The plaintiff worked for the defendant for 25 years doing what was essentially much the same repetitive work. In accordance with Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33, the plaintiff must identify the compensable injury in respect of which she claims there is an entitlement to compensation under the Act and establish that it occurred on or after 20 October 1999.
50 The plaintiff has identified the injuries suffered by her during the course of her employment with the defendant between October 1999 and 2006 as being to her neck and left and right shoulders. However, in his closing address counsel for the defendant submitted that the plaintiff:
(i) had not sufficiently identified the body function which was said to be impaired; and
(ii) had failed to demonstrate that any gradual process injury allegedly suffered by her was not attributable to her employment in the 19 year or so period prior to 20 October 1999 (“the black hole period”).
51 Counsel for the defendant submitted that the case of St Laurence Community Services (Barwon) Inc v Gledhill, which was one of the appeals in Barwon Spinners, had significant factual parallels to the present case. In Gledhill, the Appellant had worked for the same employer for 11 or more years. She sought leave with respect to personal injury to both arms (carpel tunnel syndrome) suffered during the course of her employment as a kitchen hand/cook between 20 October 1999 and approximately 27 April 2002.
52 However, Mrs Gledhill failed to bring herself within s. 134AB of the Act because the evidence led in her application did not establish how far the injury relied upon was linked to employment on or after 20 October 1999, as distinct from employment before that date.
53 Counsel for the defendant submitted that as in Gledhill, the evidence in this case when looked at as a whole failed to establish with any precision what injury or injuries the plaintiff sustained that were referable to employment up to 2006, but were not referable the black hole period.
Identification of compensable injury
54 In accordance with the authorities it is necessary firstly for the plaintiff to identify the injury that she relies upon as being a compensable injury. (Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 and Grech v Orica Australia Pty Ltd (2006) 14 VR 602).
The shoulders
55 I am satisfied on the balance of probabilities that the plaintiff has established that she suffered from a pre-existing condition being degenerative/ constitutional sub-sacromial bursitis in both shoulders, in the left worst than the right. This is the opinion of Mr Kudelka who was her treating orthopaedic surgeon for some time. I consider that his opinion is consistent with the X ray of the left shoulder of 23 September 2004 and the MIR of the left and right shoulders of 29 September 2006.
56 The diagnosis of sub-sacromial bursitis is also supported by Mr Doig, Dr Petrovic, Dr Sutcliffe and to some extent by Mr Simm (Mr Simm thought that the claimed injuries to both shoulders probably represented underlying constitutionally based subacromial bursitis but that any work exacerbation had ceased; see report DCB p. 53).
57 Given that I have accepted that the plaintiff suffered from a pre-existing degenerative condition, the authorities establish that it is necessary for her to prove that she sustained a further injury on or after October 1999 and that the further injury was the recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury and that her employment was a significant contributing factor to the aggravation.
58 I am satisfied that the plaintiff has established that her repetitive work with the defendant after October 1999 (in particular in 2004-2006) aggravated the degenerative condition of her shoulders. I am satisfied that this “aggravation” or further injury as distinct from the age/constitutional related degenerative condition of her shoulders, was sustained after the due date for the following reasons:
· While the plaintiff’s job was always busy and involved repetitive turning of pages with her left hand and with her right hand writing corrections, it was not until August 2004 that there were symptoms of a left shoulder injury followed by symptoms of a similar nature in her right shoulder in 2006.
· There was no evidence to contradict the plaintiff’s claims that doing much the same job she suffered from no problems with her shoulders prior to 2004-2006.
· the plaintiff received treatment for her shoulder problems from August 2004 (steroid injections in the shoulders, strengthening and mobilizing exercises and analgesia) until at least until 2007.Then after 2007 she had physiotherapy and medication when necessary;
· Mr Kudelka reports reveal that there was a gradual deteriation in her condition from 2004 on woods.
· As the plaintiff’s constitutional/degenerative shoulder condition existed pre-October 1999, without the post-1999 employment (in particular it appears in 2004-2006), exposing her shoulders to extra repetitive physical stress and aggravation, the plaintiff may never have developed any compensable injury to her shoulders.
59 In other words, I am satisfied that the further injury the plaintiff sustained post-October 1999 was the aggravation of the previously non-symptomatic degenerative/constitutional condition of her shoulders and that her employment was a significant contributing factor to the aggravation.
Cervical spine
60 The plaintiff also claims that in the course of her employment with the defendant she suffered injury to her cervical spine/neck. However, I am not satisfied, on the balance of probabilities, that during the course of her employment with the defendant the plaintiff suffered any injury to her cervical spine for the following reasons:
· the MRI of 29 September 2006 was essentially a normal study with no explanation for pain evident;
· I accept Mr Kudelka’s opinion (PCB p. 74) that any changes are age related;
· I accept Mr Simm’s diagnosis that “she has mild restriction of cervical movement with some clicking on movement but the MRI scan is normal. I do not believe she has a specific pathological condition of the cervical spine” (DCB p. 52).
Claimed consequences of injury
61 In her first affidavit, the plaintiff claims that there is a permanent area of swelling in the left shoulder and nearly every day she has quite strong pain which can last all day or, at a minimum, for several hours a day. In the right shoulder, she has occasional pain but no swelling. This pain is not as severe as the left shoulder and not as frequent.
62 Before the injury, the plaintiff’s favourite hobbies were sewing and scrapbooking. She still does a little of both of them but as this causes her pain, she does not enjoy them as much and does not do as much of them. She does most of the housework, but her husband does the vacuuming and helps her make the bed. Otherwise, she does the housework and cooking a little at a time but it causes difficulties and increased pain.
63 In addition the injury affects the plaintiff’s sleep. She has difficulty getting to sleep because of pain and discomfort. Probably about two nights a week she wakes up because of the pain in her left shoulder or left wrist. After a time, she can usually get back to sleep although it is difficult. She applies a heat pack or takes two Panadeine.
64 Apart from the medication which she takes for unrelated medical conditions, she takes Panadol Osteo and Panadeine. She cannot taken any anti-inflammatory medication because of her other medical conditions. This includes polycystic kidneys, multi-nodular thyroid, fatty liver, hypertension and osteopaenia. Her general practitioner continues to certify her totally unfit for work.
65 In her second affidavit (31 January 2012), the plaintiff deposed that her condition was the same. As Dr Petrovic is deceased, she now sees Dr Victoria Stephenson. She continued to have physiotherapy and continued to take Panadeine for shoulder pain (two tablets at a time two or three times a week). She only took medication at the worst times because of her kidney problems.
66 The plaintiff claimed at the time of swearing the affidavit (January 2012) that she had pain in her shoulders every day. Sometimes she woke at night with pain in her left shoulder and the left side of her neck. If she was stressed she tensed up and the pain was worse.
67 Prior to suffering her injury, she used to be able to sit for long periods doing sewing or scrapbooking. Now she can could only sit for short periods. She also had limitations when driving, particularly with reverse parking.
Whether there can be an aggregation of the injuries to each shoulder
68 The plaintiff’s position is that the court in this case should treat the injuries to both shoulders as contributing to the one impairment. In this respect Counsel for the plaintiff relied on two judgements from this court. Firstly, the case of Karovska v Parker Williams [2008] VCC 1476, a decision of Judge Jenkins, where Her Honour accepted the plaintiff’s submission that injuries to the plaintiff’s left and right wrist could be aggravated as they were inseparable in the performance of the one body function in the context of the plaintiffs work duties as a process worker.
69 Secondly a decision of His Honour Judge Wischusen in Kite v George Patterson Pty Ltd & Victorian WorkCover Authority [2008] VCC 1172. In that case the plaintiff sought leave to bring proceedings for injury sustained as a result of repeated knocks to the inside of his right knee arising out of the same defect in the place of work. His Honour held that:
“The cause of action he seeks to bring is a single cause of action ,and in those circumstances, nothing said in Lu requires that the plaintiff dissect out of the total condition of his knee, the consequences of each knock. In my view, the observations made in paragraph 89 of Barwon Spinners and in the earlier cases of Bell and Perinetti point to that conclusion”(at para. 12).
70 In submitting that that the plaintiff was precluded from aggravating her shoulder injuries the defendant relied on the decision of the Court of Appeal in Lu v Mediterranean Shoes (2001) VR 511. In Lu, the Court of Appeal held by majority that injuries to the worker’s right shoulder and right elbow respectively impaired separate body functions. The mere fact that the injury had an effect on the movement of the worker’s right arm did not mean that the arm was a relevant body function.
71 In addition the defendant relied on a decision of His Honour Judge O’Neill in Wilkins v Toll Holdings Ltd & Anor [2011] VCC 1490 that “the plaintiff could not aggregate the injury, on the one hand, to his right shoulder with the injury to his left; even accepting the injuries arose out of the same incident.”
72 I am of the same view as my learned brother. The left and right shoulders/arms are separate parts of the body and separate functions are carried out with which ever is the predominant one. Until the Court of Appeal revisits this issue, I accept that as a consequence of the decision in Lu, the plaintiff cannot aggregate the injury to the right and left shoulder.
73 As I understand the plaintiff’s case, if she cannot rely on the left and right shoulders as one body function, she relies on the left shoulder as being the more seriously affected shoulder.
Serious injury
74 In his closing address, counsel for the plaintiff urged me to accept that she was an “accurate historian who did not exaggerate her injuries” and that the consequences had a great impact on her enjoyment of life. It was submitted that she had really severe pain in her left shoulder nearly every day and that she could not use medication too much because of her other problems (transcript p. 98).
75 It was submitted that she was a stoic plaintiff who did the best she could getting on with life but that she did have significant problems including consequences for sleep, need for physiotherapy, reduction in capacity to do scrapbooking, difficulties with sitting and blood pressure and limited capacity to things around the house. In particular that the loss of her employment was significant to her. She had worked for the defendant for a quarter of a century and enjoyed and valued it. She was disappointed and distressed at the loss of her job.
76 Counsel for the defendant on the other hand submitted that “there was an absolute dearth of consequences upon which I could be satisfied that the narrative test had been met “(transcript p. 84). In addition that there was “pain amplification” attributable to a whole litany of factors which had nothing to do with the work relationship. Rather it was due to age related constitutional matters and there was a functional component (transcript p. 12).
Finding
77 I found the plaintiff to be an honest genuine and candid witness and I accept that the pain she experiences in various parts of her body is largely of a physical origin (as per the opinions of Mr Miller and Dr Petrovic) rather than a psychological one. The problem for the plaintiff however, is that her pain and difficulties arise from other parts of her body, not just her shoulders .
78 I am not satisfied that the consequences of either the injury to her left shoulder or of her right shoulder meets the definition of being a “serious injury”. Even if I had accepted that the plaintiff could rely on the injuries to both shoulders as affecting the one body function, I would have come to the same conclusion. This is because I accept the defendant’s case that:
· there is very little in the way of treatment otherwise than an occasional Panadol when the plaintiff has severe pain;
· while the plaintiff’s evidence was that she did not take Panadeine on a regular basis because she had personally formed an opinion that it might be detrimental to her polycystic kidney condition, this was inconsistent with her having been prescribed Panadeine Osteo by her doctors (transcript p. 86);
· while the plaintiff had deposed (in her second affidavit) that she only had physiotherapy every couple of months there was no report from the physiotherapist;
· in the plaintiff’s affidavit, her pain and suffering was largely confined to an impact in relation to sitting and in relation to driving, particularly with reverse parking;
· the observations of the surveillance operators were that the plaintiff was seen going about her life in an unrestricted way and not demonstrating any limitation of movement;
· in her second affidavit, the plaintiff stated that she was “able to do most things but they take me longer and require a lot of effort and care” (transcript p. 26);
· the main matters referred to in her affidavits as being affected by her injuries were sewing and scrapbooking and limitations in her driving, particularly with respect to reverse parking;
· the plaintiff had conceded that her other injuries (right hip, middle back, low back and knees) all impacted on her sitting for long periods; and
· limitations brought about by the plaintiff’s other problems, including her polycystic kidneys, hypertension, diabetes, chronic pain post-employment and pain in her back.
79 While I have accepted that the plaintiff has a genuine physical injury to both shoulders which causes her pain, throughout the course of her evidence, a picture emerged which was inconsistent with the consequences of her injury to either shoulder as being marked or significant or very considerable.
80 The plaintiff accepted that video surveillance showed her driving a vehicle, visiting a number of shopping centres, walking a distance of approximately three kilometres, using a shopping trolley and conducting her daily activities in what appeared to be a normal and unrestricted manner. .
81 In addition, she accepted that on further video surveillance she was noted to bend, stretch, twist her torso, lift shopping bags and other items and to walk at a medium pace. She was observed at her house in Greenvale wheeling out the wheelie bin placing it on the nature strip pushing on the lid, bending over and squatting at the letter box and conducting these activities in what appeared to be a normal and unrestricted manner.
82 The plaintiff acknowledged that the medication she was taking was over-the-counter and not regular. In addition, that she had not had a cortisone injection for a while (transcript p. 29). She also agreed that she had not seen any specialist in relation to the work injury for several years (transcript p. 40).
83 The plaintiff agreed that she had developed other problems subsequent to cessation of her employment, including in her right hip, knees, elbow, wrists lower and middle back. Her pain was now widespread and it had been getting worse since she finished employment and all of these conditions had an effect on her and limited her to some extent.
84 After considering the whole of the evidence in this case, I am not satisfied that, when judged by comparison with other cases in the range of possible impairments or losses of body function, the impairment or loss of body function of the plaintiff’s left shoulder or the plaintiff’s right shoulder resulted in pain and suffering, the consequences of which are fairly described as being more than significant or marked and at least very considerable.
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