Mudrinic v Barfell Industries Pty Limited
[2014] VCC 1235
•16 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02129
| CVETA MUDRINIC | Plaintiff |
| v | |
| BARFELL INDUSTRIES PTY LIMITED (ACN 097 515 930) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 13 and 14 March 2014 | |
DATE OF JUDGMENT: | 16 October 2014 | |
CASE MAY BE CITED AS: | Mudrinic v Barfell Industries Pty Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1235 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the low-back – Pain Disorder, Depression and anxiety – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis & Ors [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Wingfoot Australia Partner Pty Ltd v Jovevski [2014] VSCA 21
Judgment:Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and economic loss as a result of injuries suffered in the course of her employment with the defendant after 20 October 1999.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds SC | Zaparas Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
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 the defendant after 20 October 1999.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function;
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application in respect to s134AB(37)(a) is injury to the low back.[1] The mental or behavioural disturbance relied upon in respect to s134AB(37)(c) is in respect of a Pain Disorder, Depression and Anxiety and an Adjustment Disorder.
[1]Transcript (“T”) 164
6 The plaintiff relied upon four affidavits, three sworn by her on 14 December 2011, 25 November 2013 and 11 March 2014 and one sworn by her husband, Peter Mudrinic, on 13 December 2013. Five witnesses were cross-examined, namely, the plaintiff, Dr Mazzoni, Mr Kossmann, Mr Haw and Dr Miller. I have not summarised the plaintiff’s evidence or the affidavits of the plaintiff and her husband. I have not summarised the evidence of the medical witnesses who gave evidence; however, I will refer to the evidence of the plaintiff, her husband and the medical witnesses in my reasoning. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all 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.[2]
[2]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 the defendant.[3]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[4]
(c)“the consequences” to the plaintiff of her impairment to the low back in relation to “pain and suffering” or “loss of earning capacity” 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”.[5]
(d)“the consequences” to the plaintiff of her mental or behavioural disturbance in relation to “pain and suffering” or “loss of earning capacity” must be “severe” when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be.[6]
(e)the judgment of the Court of Appeal and Mobilio v Balliotis & Ors[7] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[8] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”.[9]
(f)Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe” where used in s93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[10]
(g)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.[11]
(h)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.[12]
[3]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4]Barwon Spinners (supra) at paragraph [33]
[5]Section 134AB(38)(b) and (c)
[6]Section 134AB(38)(d)
[7][1998] 3 VR 833
[8](1995) 21 MVR 314
[9](Supra) at 846
[10](Supra). See also Phillips JA at 858 and Charles JA at 860-861 to similar effect
[11]Section 134AB(38)(h) of the Act
[12]Section 134AB(38)(i) of the Act
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[13]
[13]Section 134AB(19B) and 38E of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[14]
[14]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[15] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[16]
[15]Section 134AB(38)(e)(ii) of the Act
[16]Section 134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[17]
[17]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
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:[18]
“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. … .”[19]
[18][2009] VSCA 181
[19](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.”[20]
[20]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
14 The test for “serious”, as set out in paragraph (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 make the assessment of “serious injury” at the time the application is heard;[21]
(b) 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.[22]
[21]Section 134AB(38)(j) of the Act
[22] 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]
The issues
16 The defendant submitted:
(a)that prior to 20 October 1999, the back condition, shoulder and neck conditions, as well as the pain syndrome were all well-established, and in particular the established fibromyalgia condition defeats any physical or psychological injury after that date;
(b)there is a disentanglement issue in respect to the physical and psychiatric injury;
(c)there are two Medical Panel decisions of June 2004 and May 2005 which are of relevance to the plaintiff’s psychiatric condition;
(d)the plaintiff failed to identify a separate severe aggravation occurring after 20 October 1999 so as to amount to a “serious injury” in itself.
Investigations
17 On 1 July 1993, an x-ray of the lumbosacral spine reported:
“The fifth lumbar vertebra is transitional, being largely fused to the first piece of the sacrum. A mild scoliosis convex to the right is present in the upper lumbar spine. The disc spaces appear to be intact and no abnormality can be seen in the sacrum or sacroiliac joints.”[23]
[23]Plaintiff’s Court Book (“PCB) 248
18 On 7 June 1999, a right shoulder ultrasound showed no evidence of rotator cuff tear.[24]
[24]PCB 119
19 On 19 August 1999, a bone scan of the rib cage, thoracic spine and shoulder girdles was normal.[25]
[25]PCB 120
20 On 9 May 2000, an x‑ray of the cervical spine was within normal limits. There was mild lower scoliosis of the thoracic spine and slight increase in the dorsal kyphosis with minor anterior disc space narrowing and minimal anterior osteophytic lipping. An x‑ray of the lumbosacral spine showed mild scoliosis concave to the left. L5 is a transitional vertebra which almost certainly explains the mild narrowing of the L5-S1 disc space. The remaining disc spaces appeared well preserved and there were no significant abnormalities of the facet or S1 joints.
21 On 15 May 2000, an ultrasound of the left shoulder was normal.[26]
[26]PCB 122
22 On 4 July 2001, an ultrasound of the right groin reported a haematoma was noted, presumably from a rupture of a few fibres which attach to the acetabulum.[27]
[27]PCB 122.1
23 On 18 July 2001, an ultrasound of the left shoulder concluded a focal longstanding degenerative tendinopathy in the anterior third of the supraspinatus tendon is demonstrated.[28]
[28]PCB 123
24 On 9 April 2002, a CT scan of the lumbar spine concluded there is facet joint arthritis. No acute disc herniation was demonstrated.
25 On 2 September 2002, a CT scan of the cervical spine was organised by Dr Mazzoni.
26 On 22 February 2003, an x-ray of the lumbar spine reported:
“L5 has become sacralised with consequent narrowing of the L5-S1 disc space.
There is also some narrowing of L4-5 but no associated marginal degenerative change.
The facet joints appear within normal limits.
There appears to be a slight rotational scoliosis concave to the left.
The S1 joints appear normal.”[29]
[29]PCB 778
27 On 12 August 2004, a CT scan of the lumbosacral spine concluded:
“Mild diffuse annular disc bulging at the L4/5 level of doubtful clinical relevance. No discrete focal disc prolapse or features of canal stenosis are seen. Advanced degenerative change is present in the right L4/5 facet joint which may account for the current right sided symptomatology.”[30]
[30]PCB 124
28 On 11 October 2005, a CT scan of the lumbosacral spine concluded:
“At the level of L3-4 degenerative changes noted in relation to the facet joint articulations, being more marked on the right side. Narrowing of the right lateral exit nerve root foramen at the level of L3-4.”[31]
[31]PCB 126
29 On 24 November 2005, an MRI scan of the spine concluded:
“Moderate right foramina stenosis at L3/4 due to facet joint hypertrophy.”[32]
[32]PCB 127
30 On 28 December 2005, a nuclear bone scan showed:
“… moderate increase in the right hip joint, consistent with underlying osteoarthritic change. No other abnormal activity is seen elsewhere within the pelvis.
There is no evidence of abnormal activity in the lower thoracic or lumbar spine or in either proximal femur.”[33]
[33]PCB 127.1
The Plaintiff’s medical evidence
Dr Mike Mazzoni
31 Dr Mazzoni, general practitioner, provided numerous medical reports between April 2002 and November 2013, and his clinical notes were also produced in evidence. His clinical notes were handwritten and at times illegible.
32 Dr Mazzoni reported that the plaintiff presented on 8 May 2000 complaining of a longstanding work-related posterior neck, left shoulder and back pain for which she had been treated by the company doctor for several years. He prescribed oral prednisolone and recommended she persist with physiotherapy.[34]
[34]Medical Report 10 April 2002
33 On 18 July 2001, the plaintiff reported a severe aggravation of left shoulder pain as a result of pushing a heavy machine at work on 12 July 2001. The plaintiff underwent physiotherapy, hydrotherapy and a subacromial steroidal joint injection into the left shoulder.
34 Dr Mazzoni reported that, despite treatment, symptoms from the left shoulder persisted. The plaintiff developed a complex pain syndrome. She could not return to her pre-injury work duties. Her general debility and chronic pain resulted in worsening symptoms of depressed moods, emotional lability and tearfulness, feelings of isolation, social withdrawal, insomnia, sexual dysfunction, irritability and diminished motivation and concentration.
35 Dr Mazzoni agreed that he commenced certifying the plaintiff as unfit for work for left shoulder, regional pain or Myofascial Pain Syndrome.
36 Dr Mazzoni’s records confirm that in February 2002, the plaintiff was being treated for low-back pain and depression. She was prescribed medication for depression, as well as for pain. Thereafter, Dr Mazzoni’s records confirm the plaintiff was complaining of low-back pain, as well as shoulder and neck pain.
37 Dr Mazzoni reported that in February 2002, the plaintiff commenced the anti-depressant medication of Zoloft. Due to side effects of nausea and abdominal cramps, she changed to Cipramil. She experienced frequent exacerbations of her depressive illness. She suffered debilitating symptoms of psychosis associated with suicidal ideation, and was referred to psychological counselling.
38 Dr Mazzoni said the plaintiff was genuine in her presentation. In his report of April 2002, Mr Mazzoni disagreed with the opinion of Mr Davie, orthopaedic surgeon, that the plaintiff is “consciously exaggerating her problems”. Dr Mazzoni said her significant disability has affected her work capacity and impacted on her daily living activities and relationships with family and friends. She was unfit to return to work duties due to her poor physical and mental state.
39 On 9 April 2002, Dr Mazzoni’s records confirm the plaintiff complained of low back pain. In re-examination, Dr Mazzoni said by April 2002, the plaintiff had been complaining of back pain but she was now presenting because of the severity of it and she had limited forward flexion to 20 degrees which was very stiff.[35]
[35]T94
40 In August 2003, Dr Mazzoni reported the plaintiff was complaining of back pain, posterior neck and posterior shoulder pain. She was referred to Dr Thacore, psychiatrist, for ongoing management due to worsening symptoms of anxiety and depressive illness.
41 In April 2004, the plaintiff developed worsening right hip and right-sided lumbosacral pain radiating into her right thigh. An x‑ray of the lumbar spine taken on 13 April 2004 showed marked narrowing of the L5-S1 disc space and slight narrowing of the L4-5 disc space. A CT scan of the lumbar spine showed mild diffuse annular disc bulging at the L4-5 level, but no discrete focal disc prolapse or features of canal stenosis.[36]
[36]Dr Mazzoni report dated 12 July 2006
42 In February 2005, Dr Mazzoni said the plaintiff continued to complain of back, posterior neck and posterior shoulder pain. She continued to experience symptoms of depression and anxiety with associated suicidal ideation. He confirmed the plaintiff had been prescribed anti-depressant medication, sedatives and tranquilisers to assist her psychological state.
43 In 2006, Dr Mazzoni referred the plaintiff to Mr Paul D’Urso, neurosurgeon. Dr D’Urso saw the plaintiff in April 2006. On the basis of an MRI scan of the lumbar spine, Dr D’Urso recommended a CT-guided foraminal block of the right L3 nerve root.
44 Dr Mazzoni agreed that in 2006 he added the low-back to the plaintiff’s work certification.
45 In July 2007, Dr Mazzoni noted that the plaintiff was referred by Mr D’Urso to Professor Teddy at The Royal Melbourne Hospital due to low-back pain. Professor Teddy recommended the insertion of an interspinous spacing device (a dynamic stabilisation), which was performed in August 2008 at L3‑4. He noted the plaintiff’s extremely fragile mental state, with severe debilitating symptoms of depression, suicidal thoughts and psychosis. He assessed the plaintiff as totally and permanently incapacitated for work.
46 In October 2012, Dr Mazzoni reported that the plaintiff’s Chronic Pain Syndrome, subsequent to her left shoulder injury in 2001, contributed to her resultant depressive illness. He said a combination of her physical incapacity, associated with chronic pain and severe depressive illness, led to her inability to continue working. He said the plaintiff’s right hip pain is degenerative and not due to work.
47 In November 2013, Dr Mazzoni said the plaintiff’s work between October 1999 and July 2001 caused an acceleration of her lumbar spine degenerative disease. This was first noted on CT scans of the lumbar spine in April 2002 and August 2004, as well as an MRI scan in November 2005. It was his view that the impact of her back injury contributed to her inability to return to work.
48 Dr Mazzoni confirmed that, prior to 2000, the plaintiff complained of generalised pain over the course of twelve months in her shoulders, back and neck.[37] In cross-examination, Dr Mazzoni confirmed he previously treated her for low-back pain in 1993 which was work-related. In re-examination, Dr Mazzoni confirmed the plaintiff sought treatment for her low-back pain in February 2000. On 21 February 2000 Dr Mazzoni’s clinical records list “tender L4-5”, among other notations. Dr Mazzoni said that although as a lay person the plaintiff attributed the strain to dancing, that would have no impact. In cross-examination, he agreed the complaint of low-back pain in February 2000 could have been an aggravation of the pre-existing condition of the 1993 injury.[38]
[37]T81
[38]T80
49 Dr Mazzoni agreed that in May 2000, he first certified the plaintiff for light duties after she complained of a soft-tissue injury to the shoulder, back and neck. On examination, the plaintiff had a full range of movement of the neck and shoulders, but painful forward flexion of the low back, which resulted in an x‑ray.
50 In re-examination, Dr Mazzoni said he was unaware that on 18 October 1999 the plaintiff had been certified by Dr Hayes, the plaintiff’s previous GP, as fit for full time duties and was noted as being pain free. Dr Mazzoni said he was aware the plaintiff engaged in heavy lifting at her workplace. He agreed with Dr Hayes that the plaintiff would be vulnerable to further episodes of back pain due to the nature of her work and previous exacerbation.[39] He agreed that from early 2000 through to July 2001 (when the plaintiff ceased work), her work produced a degree of aggravation of an existing pain or injury.[40] Dr Mazzoni agreed that from the time he started certifying the plaintiff as unfit for work, he was certifying for left shoulder, regional pain or Myofascial Pain Syndrome. In 2006, he added the low back to the certification.
[39]T92
[40]T93
51 Dr Mazzoni gave further evidence that in 1995 he treated the plaintiff for obsessional thought patterns, anxiety and depression. He prescribed Prozac and her mental state improved.[41] He agreed that by mid-1999, the plaintiff was suffering from a combination of physical and psychological problems affecting her shoulder and upper limb.[42]
[41]T76
[42]T77
52 In respect to the plaintiff’s emotional, psychological or psychiatric state, Dr Mazzoni referred the plaintiff to Dr Strubel, psychologist, in April 2002 and later to Dr Thacore, psychiatrist. He observed the evolution of a severely disabled, distraught patient in pain with limited functional status. He said the plaintiff was most willing to work, but her medical condition deteriorated and she did not know how to work.
53 In several of his reports, Dr Mazzoni said in summary that the plaintiff’s work duties as a machine operator and assembler was a significant contributing cause to the development of her neck, back and left shoulder injuries. These were complicated by a Complex Myofascial Pain Syndrome, and depressive illness. He said the plaintiff’s prognosis is guarded and she is totally incapacitated and permanently unable to return to the workforce in a job in which she is qualified by training, education and experience. Dr Mazzoni’s reports commented variously on the plaintiff’s mental condition. In July 2007, Dr Mazzoni reported the plaintiff’s mental state was extremely fragile and the plaintiff had suffered from severe debilitating symptoms of depression associated with suicidal ideation and psychosis.[43]
Dr Victoria Hayes
54 In December 2002, Dr Victoria Hayes, general practitioner, confirmed that the plaintiff attended Interhealth Medical Clinic (being the medical clinic associated with the defendant’s company) between November 1996 and April 2000. The plaintiff first attended the Clinic in early March 1999 complaining of shoulder symptoms.
55 Dr Hayes noted that the plaintiff reported a previous shoulder injury three to five years ago, which was treated with medication and physiotherapy. At that time, she was treated by Dr Senini.
56 Dr Senini’s medical records were produced to the Court. Those records confirmed the plaintiff was treated for low-back pain on 1 July 1993. An x-ray was performed, Naprosyn prescribed, and physiotherapy recommended. She was certified for normal duties on 2 July 1993. Subsequently on 1 June 1994, the plaintiff complained of a painful left shoulder for two months. She was prescribed Naprosyn and physiotherapy.
57 Dr Hayes reported that by 15 March 1999 there was an improvement to 95 per cent of normal. However, this improvement was not fully maintained and fluctuated. In June 1999, the plaintiff had an exacerbation without specific injury; this was thought to be a regional arm pain problem including her neck, shoulder and arm.
58 Dr Hayes referred the plaintiff to Dr Marian Miller, rheumatologist, who confirmed a diagnosis of Regional Pain Syndrome triggered by a soft-tissue strain in the upper left thoracic region. By September 1999, Dr Hayes reported there was steady improvement and the plaintiff was on normal duties and pain free. Thereafter the plaintiff did not attend Dr Hayes because the doctor transferred to another clinic.
59 Dr Hayes diagnosed a work episodic Regional Pain Syndrome. She had no record of stress or anxiety and depression. Dr Hayes expected the plaintiff to make good progress, but be vulnerable to further episodes due to the nature of her work and her previous exacerbations. Each episode responded well to conservative management strategies over time.
Dr Marian Miller
60 In August 1999, Dr Miller, rheumatologist, treated the plaintiff on referral from Dr Hayes. She said the focus of the plaintiff’s pain was the left upper inner scapular region. From there it spread to the left shoulder girdle, the left shoulder joint and the left upper outer arm. More recently as at the date of the report, the plaintiff had been experiencing intermittent pain right across the low back. It was Dr Miller’s view the plaintiff was suffering a Regional Pain Syndrome triggered by a soft-tissue strain in the left upper thoracic region. She referred the plaintiff to a rehabilitation therapist to help her develop pain management strategies.
61 In cross-examination, Dr Miller said she could not say that the left shoulder joint was the focus of the pain as distinct from back pain. She said fibromyalgia is a specific diagnosis and is physically based. She said the diagnosis of fibromyalgia is a medical diagnosis not a psychiatric one. It is a diagnosis which GP’s may make, but patients are usually sent to rheumatologists for confirmation. Dr Miller said the concept that fibromyalgia is a psychiatric diagnosis was a new concept to her. Stress can maintain the Chronic Pain Syndrome, but that is different to saying it is a psychological condition. She said fibromyalgia may occur for the first time in situations that have been stressful.
62 In re-examination, Dr Miller was informed that the plaintiff returned to work in October 1999 and was performing heavy duties. Then in March 2000, the plaintiff had two weeks off work and returned to full duties. She agreed that the plaintiff could have expected to make good progress, but be vulnerable to further episodes due to the nature of her work and previous exacerbations.
63 The plaintiff returned to light duties from May 2000 for about 4 or 5 months, and then increased the light duties to full duties until she suffered an incident in July 2001, at which time she went off work. Dr Miller said lifting 25-kilogram loads is a significant physical stress and in that situation you could expect to see recurrences, aggravations or exacerbation of soft-tissue pain.
64 Dr Miller took the view that the work the plaintiff performed from October 2000 through to July 2001, if it was heavy lifting, and given the plaintiff’s proven vulnerability, she would expect to include that work in the mix of factors that led to her further exacerbation or recurrence of the problem.
Dr Stephen Lewinsky
65 On 18 August 2000, Dr Lewinsky, general practitioner at Cedar Court, referred the plaintiff to Dr Mark Patrick, rheumatologist. Dr Lewinsky assessed the plaintiff as having myofascial type symptoms, predominantly of the left shoulder girdle and upper limb. He described the plaintiff as struggling on diligently, and there was no evidence of depression or significant pain behaviour, which he said was supported by Mr Blyth, psychologist at Cedar Court
Dr Mark Patrick
66 In December 2002, Dr Patrick, rheumatologist, examined the plaintiff and diagnosed a diffuse Myofascial Pain Syndrome. He said there were no pre-existing injuries or disabilities which may have contributed to the injury or condition. He said the condition had stabilised. He thought it unlikely the plaintiff would further recover. He thought she was capable of employment but in a limited capacity. He recommended independent home-based gentle strengthening and reconditioning work. He said there was no evidence of significant depression.
Dr Yvonne Pun
67 In October 2005, Dr Pun, rheumatologist, saw the plaintiff on referral from her general practitioner in relation to right groin pain. She noted there were some degenerative changes in the right hip joint. She referred the plaintiff for a cortisone injection under imaging control in the right hip joint.
Mr Paul D’Urso
68 In July 2006, Mr D’Urso, neurosurgeon, examined the plaintiff. He obtained a history of the plaintiff lifting 25-kilogram bags of resin repeatedly at work and, in June 1993, developing acute pain in her back which radiated to the right leg and was associated with paraesthesia. Symptoms persisted and over the four months leading up to the consultation in July 2006, pain increased severely and radiated from the back into her hip, groin and right thigh. It was his opinion that the plaintiff’s condition was worse than the imaging suggested. He thought it possible that, in a standing posture, the foraminal compression of the L3 nerve root increased. He recommended a right L3 nerve root block with Marcaine and steroid be performed for both diagnostic and therapeutic purposes. He said she did not have the capacity for pre-injury work. He was guarded in his prognosis.
Dr Brian Strubel
69 Dr Strubel, psychologist, provided numerous reports, having treated the plaintiff since 29 April 2002. He said she presented as being in pain and suffering depression. She reported a condition that was worsening over time with the work she was doing. Dr Strubel diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Major Depression, a Myofascial Pain Syndrome, along with features of a Sleep Disorder. He said the plaintiff’s psychological condition/incapacity was directly related to her physical injury sustained at work with the defendant. He said the plaintiff’s work as a machine operator and assembler was a significant contributing cause to the development of posterior neck, back and left shoulder injuries, which have been complicated by a Complex Myofascial Pain Syndrome and depressive illness for which she has required pharmacotherapy and counselling. He said the plaintiff remained psychologically unfit for pre-injury duties and all types of work, and this is likely to remain indefinitely. He said she is essentially unemployable. It was his view that she required ongoing psychological and psychiatric treatment and her prognosis remains poor. He noted the plaintiff had a high work ethic, feels frustrated that she cannot work and would like to work.
Dr V R Thacore
70 In April 2008, Dr Thacore, psychiatrist, confirmed he treated the plaintiff since September 2003 on referral from her general practitioner. He diagnosed an Adjustment Disorder with Depression and psychosomatic symptoms resulting from physical (back) and emotional injuries which she suffered through the course of her employment with the defendant. He said the plaintiff had shown poor response to anti-depressant medication, tranquillisers and psychotherapy and continued to suffer physically and emotionally. He said she was unfit to work part time or full time, and he did not see her being employable in the foreseeable future.
Dr Robert Grogan
71 In February 2014, Dr Grogan of Southern Health confirmed the plaintiff had been an inpatient in July 2010 and she attended the Outpatients Orthopaedic Clinic in 2010 and 2011. The plaintiff underwent an ultrasound-guided steroid injection of her right hip and fluoroscopic hydrodilation of the right hip. He confirmed that a total hip replacement was performed on 6 July 2010 at the Dandenong Hospital. Her post-operative course was uneventful.
The Royal Melbourne Hospital
72 On 17 February 2014, Dr Hans Tu, medico-legal services, confirmed the plaintiff was seen by Professor Teddy in May 2007 in respect to low-back pain she had suffered since 2001. On 10 July 2008, she underwent division of the L3‑4 interspinous ligament and implantation of a dynamic stabilising device. She was reviewed in February 2009 and reported a complete resolution of her back and leg pain.
Ms Kris Schroder
73 In March 2014, Ms Schroder, psychologist, reported that she treats the plaintiff on a monthly basis on referral from Dr Mazzoni since July 2013. In her opinion the plaintiff was suffering from Somatic Symptom Disorder with severe persistent pain, coupled with Major Depressive Disorder. Ms Schroder said the plaintiff was unfit to engage in any form of employment or vocational training, and she did not see any changes occurring in the future.
Dr Paul Kornan
74 Dr Kornan, psychiatrist, examined the plaintiff in December 2011 and 2012 and again in April 2013. Dr Kornan diagnosed:
·Major Depressive Disorder, recurrent;
·Adjustment Disorder with Anxiety; and
·Pain Disorder associated with psychological factors.
75 Dr Kornan said her condition was consistent with it being caused by her employment. He said as a result of her injuries she developed a Major Depressive Disorder, an Adjustment Disorder with Anxiety and an ongoing Pain Disorder with Associated Psychological Factors.
76 Dr Kornan was aware that Dr Littlejohn and Mr Battlay said there was no relationship between the plaintiff’s work injury and the Pain Syndrome. He also noted that Dr Shan, psychiatrist, concluded that her employment was now no longer a significant or material factor for her Adjustment Disorder and Pain Disorder. Dr Kornan said it was well understood that even if the initial pain from physical factors ceased, in many people (and he would include the plaintiff in that group), the ongoing Pain Syndrome and persisting Pain Disorder and mood difficulties often continue unchanged. Many patients continue to be significantly disabled on psychiatric grounds long term. The appropriate treatment for the plaintiff is to continue with her local doctor and to attend occasional visits to the psychologist. He noted that she was taking Zoloft, Diazepam, one or two a day, and Temazepam at night. She also took Endep and OxyContin. He said that medication was appropriate.
77 Dr Kornan said the plaintiff’s prognosis is poor, her condition is chronic and disabling. He accepted her condition was consistent with having been caused by her employment and the after effects. He said from a psychiatric view she was unfit for any employment.
Mr Charles Flanc
78 In January 2014, Mr Flanc, vascular and general surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. Mr Flanc said the plaintiff reported heavy lifting of bags of plastic pellets weighing 25 kilograms, as well as other heavy activities. She reported an injury to the lower back in 1993 with persisting symptoms fluctuating in severity. It was his view that the plaintiff’s work and certain episodes aggravated her pre-existing degenerative condition of the lumbar spine (in the sense that it became symptomatic and remained symptomatic), and also caused a possible nerve root impingement
79 He said it is quite likely that some of her back pain could be attributed to residual degenerative disease of the lumbar spine. He thought it likely that her symptoms are being influenced by non-organic factors. He said more information was required. He thought she did not have a capacity for work.
Mr Chris Haw
80 In February 2014 Mr Haw, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. He said the plaintiff’s problems in the lumbar spine are work related. He said that in the incident in 1993, it is likely that there was a disc disruption, probably at L4, which then progressively went on to severe degeneration with associated facet arthropathy and right L4 root canal involvement as a consequence of the very heavy nature of her work. He said the current problem in her right hip is almost certainly due to the ongoing problems with the right L4 nerve root, and unrelated to the hip joint. He said the hip joint problem is not related to her work and neither is the idiopathic scoliosis and the degenerative change in the thoracic spine, which he considered an inherited genetic problem.
81 Mr Haw said the plaintiff had bilateral degenerative problems in both shoulders and it was reasonable to suppose the nature of her work would have accelerated the rate of degeneration within the dysplastic rotator cuffs. He said the plaintiff was unfit for work, unfit for any alternate duties or for pre-injury employment. He said treatment should be considered for the lumbar spine as she has ongoing problems with back pain and pain radiating into the groin, which is quite disabling. He said her psychological state is such that this would mitigate against a good outcome for either of the surgical interventions. He said the prognosis is one of significant problems for the lumbar spine and both shoulders.
82 It was Mr Haw’s opinion that her work between 20 October 1999 up until July 2001 would have significantly aggravated the low-back injury which occurred in 1993.
Mr Thomas Kossmann
83 In February 2014, Mr Kossmann, orthopaedic surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. He diagnosed an aggravation of multi-level lumbar spine disease on the basis of mild Grade 1 anterolisthesis of L3 over L4 lumbar vertebrae, L1-2 and L2-3 bilateral moderate facet joint osteoarthritis.
The Defendant’s medical evidence
Mr Brian Davie
84 In January 2002 and September 2003, Mr Davie, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. He said the plaintiff appears to show evidence of physical symptoms to the neck and lower back and particularly the right upper limb. He was unable to form any orthopaedic diagnosis of her problems. He thought her medical condition was more in keeping with a psychological disturbance. He said there were many inconsistencies on examination, and he felt that there was significant exaggeration of her problems. He said her symptoms continue despite her not working. He concluded that work was not the only factor causing her problems.
Mr Anthony Buzzard
85 In April 2002 and July 2003, Mr Buzzard, general surgeon, medically examined the plaintiff at the request of the defendant’s insurer. She reported back pain in 1993-1994 when lifting heavy bags at work; the pain was intermittent after 1994. In 2002, the pain reportedly involved right buttock pain, and in 2003 it further involved the right hip and thigh, down to the knee.
86 In April 2002, Mr Buzzard said there was gross restriction in range of movement of the cervical and lumbosacral spine. Given the radiology appeared normal, he thought there was a functional problem. He reported there may be an underlying physically based problem in the left shoulder, but the problem is now dominated by non-physical considerations. He thought the plaintiff had a capacity for work not involving a full range of movement of the left shoulder. She described “nervousness” since she developed pain.
87 In July 2003, the plaintiff complained of worsening back pain over the last six months. He noted tenderness most marked in the low back region. He did not think there was any significant physical explanation for her injury. He said her psychological and psychiatric symptoms were more advanced since his previous examination. He thought she needed to be assessed by a psychologist or psychiatrist.
Dr Ralph Poppenbeek
88 In September 2002, the plaintiff was examined by Dr Poppenbeek, occupational medicine consultant, at the request of the defendant’s insurer. He said the plaintiff presented with a widespread pain encompassing the upper and lower spine, as well as both arms. He thought the most probable diagnosis was a fibrositis condition affecting both shoulder girdles and upper arms, with some superimposed left shoulder rotator cuff tendonitis. He thought the low back pain could be explained by fibrositis. He reported a substantial emotional or anxiety component to the plaintiff’s presentation and recommended a psychological and psychiatric evaluation. He said if the psychological issues are secondary to the physical pain, which he thought was the case, there would be a significant work contribution.
Dr M J Nathar
89 In December 2002, Dr Nathar, psychiatrist, examined the plaintiff at the request of the defendant’s insurer. The plaintiff reported a left shoulder injury, a left knee injury and an injury to the back in 1993 when lifting. She reported an aggravation to the right shoulder in 2000, and ceased work in July 2001 due to the left shoulder and neck problem. At the time of interview, she described continuing pain in the neck, left shoulder area, shoulder blades, arms and the back of her head. She reported starting to develop depression and anxiety when still at work because of the pain and her desire to keep working.
90 Dr Nathar said the plaintiff sustained a psychiatric injury and was suffering from a moderate Adjustment Disorder with Anxious and Depressed Mood. He said she was also suffering from a Chronic Pain Disorder and he believed her psychiatric state had caused psychological amplification of pain. He said her employment was a significant contributing factor to her psychiatric reaction. This stemmed from her physical injuries, and her perception of lack of support from her employer. He thought there was some psychiatric work incapacity at a mild level, but she retained a psychiatric capacity for suitable employment. He thought she could cope part time with pre-injury duties, but she would have physical difficulty doing so. Such work would be part time only, and she would need rest. He suggested light process or inspection type work. He said, from a psychiatric viewpoint, she is not totally unfit for work for any duration of time. He could not detect any non-work related factors playing a part.
Dr Timothy J Entwisle
91 Dr Entwisle, psychiatrist, examined the plaintiff in September 2003 and April 2004 at the request of the defendant’s insurer. In September 2003 Dr Entwisle’s diagnosis was that, in the context of a chronic pain presentation, she presented with symptoms of depressed mood, anxiety, irritability, and a variety of somatic symptoms. His prognosis was guarded in respect to functional capacity and employability.
92 He thought her physical and psychological presentation mitigated against a return to work, and he reported a degree of permanent impairment. He said her treatment was appropriate.
93 In October 2003, Dr Entwisle was asked to comment on Mr Davie’s report dated 23 September 2003. He said in view of that report “it would be hard to sustain the view that work would be regarded as a significant contributing factor to her condition”.
94 In April 2004 Dr Entwisle diagnosed an adjustment disorder with depressed mood, anxiety and somatic equivalent. He was aware that Dr Stephen Hall diagnosed the plaintiff as suffering from fibromyalgia. He said her work was a significant contributing factor to her condition. Her physical and psychological presentation would mitigate against a return to work, and her impairment was permanent.
Mr Peter Battlay
95 Mr Battlay, surgeon, medically examined the plaintiff in April 2004 and October 2004 at the request of the defendant’s insurer. In April 2004, Mr Battlay said the plaintiff had fibromyalgia, and rotator cuff degeneration in her shoulders with no evidence of ongoing inflammation. He thought her employment was no longer a significant contributing factor to her problem. He said there was no evidence of a work-related physical impairment.
96 In October 2004, Mr Battlay said the plaintiff had a generalised Pain Syndrome. Her most recent ultrasound did not indicate inflammation in her left shoulder, and her back and right hip x‑rays described a longstanding condition going back to her childhood. He said employment was no longer a significant contributing factor and she was medically fit for work consistent with her age, sex and physical development. He could not predict the likely duration of her psychological problems.
97 Mr Battlay read the report of Associate Professor Littlejohn dated 23 December 2004. It was his view that Dr Littlejohn’s report drew the same conclusion to that of his own. He said that Dr Littlejohn did not make a link between any physical component of her work activity and her ongoing Pain Syndrome.
98 In February 2005, Mr Battlay was asked to consider the medical report of Dr Mazzoni dated 3 February 2005. Mr Battlay said, in the absence of a link between the plaintiff’s employment and her current condition, he did not believe that ongoing medical attention was compensable. He said his views concerning the plaintiff’s claim remained unchanged in spite of the medical report of Dr Mazzoni.
Mr Brendan J Dooley
99 In August 2004, Mr Dooley, orthopaedic surgeon, provided an impairment assessment for the plaintiff’s left shoulder. It was his opinion that the plaintiff suffered from the effects of a soft-tissue injury of her left shoulder, brought on by the nature of her duties and the left shoulder injury that occurred in March 1999 with aggravation in July 2001. He said the plaintiff had developed marked stress and anxiety, with the development of a Chronic Pain Syndrome. The outlook for recovery and return to work was poor.
Associate Professor George Mendelson
100 In August 2004, Dr Mendelson, psychiatrist, examined the plaintiff at the request of the defendant’s insurer. The plaintiff reported developing low-back pain while at work during 1993. During the following year, she developed pain in her neck and left arm. She stopped work in July 2001 because of pain in her low-back, as well as in both arms.
101 Dr Mendelson described the plaintiff as a pleasant and a cooperative woman who appeared somewhat tense. He said her spoken English was limited. She reported having to lift heavy materials at work, weighing 25 kilograms. Her current symptoms were pain in the low back, the right leg and in both shoulders, which she described as constant. She had difficulty sleeping, described being depressed, and reported the medication she was taking.
102 Dr Mendelson said the plaintiff described some depressive symptoms which he thought had developed as a consequence of persistent pain, resulting in restrictions on her activities and an inability to continue working. He described the depressive symptoms as “relatively mild” and he did not think they would prohibit her from undertaking gainful employment within the limitations of her physical condition. He said the plaintiff had impairment of both thinking and mood. He said her psychiatric impairment is a consequence of and secondary to her physical condition. He thought her condition had stabilised.
Dr Victor Botvinik
103 In November 2004, Dr Botvinik, psychiatrist, examined the plaintiff at the request of the defendant’s insurer. It was his opinion that the plaintiff suffered a low-back injury in 1992 and he noted, according to Mr Battlay, the plaintiff suffered a generalised Pain Syndrome. It was Dr Botvinik’s opinion that the plaintiff’s psychiatric condition is secondary to her physical injury and is not a primary psychiatric condition at all.
104 He recommended that she continue to see her psychiatrist. He did not believe the plaintiff was fit to perform her pre-injury duties, or that she was fit for any other suitable employment, as she suffers from a significant level of pain. He thought her psychological condition would improve and she was not permanently impaired..
105 Dr Botvinik was asked to consider the reports of Dr Littlejohn and Mr Battlay. He reported that the plaintiff was suffering from a genuine work-related physical condition. However, in view of the opinions of Mr Battlay and Dr Littlejohn, there was no relationship between work injuries and the plaintiff’s Pain Syndrome. He accepted those opinions. In the circumstances, Dr Battlay said the plaintiff’s psychiatric symptoms had no relationship to her work-related injury or condition.
Dr Geoffrey Littlejohn
106 In December 2004, Dr Littlejohn, rheumatologist, examined the plaintiff at the request of the defendant’s insurer. He diagnosed fibromyalgia syndrome. He described this as a common Chronic Pain Syndrome causing widespread pain and tenderness, which is often associated with fatigue, emotional distress, poor concentration and poor memory.
107 Dr Littlejohn thought her employment was a significant contributing factor to the original soft-tissue strain around the shoulder girdle area. However, as time has passed, she has developed a more widespread Chronic Pain Syndrome unrelated to the soft-tissue injury. He could not connect any physical component of a work activity and her ongoing Pain Syndrome. He thought she had recovered from the effects of the claimed work incident in March 1999. There was no evidence of any organic-based tissue damage injury to her left shoulder. He thought the plaintiff’s psychological/psychiatric condition was causing widespread pain, namely her fibromyalgia syndrome.
108 Dr Littlejohn considered the report of Dr Mazzoni dated 3 February 2005. He did not alter his opinion.
Mr T J Russell
109 In October 2006, Mr Russell, surgeon, examined the plaintiff at the request of the defendant’s insurer. It was his view the plaintiff had global symptoms, with a good deal of non-physical overlay. He said the physical-based problem is part of her symptom complex from osteoarthritic changes in her right hip and degenerative change in her lumbar spine. He said these conditions were not related to employment in terms of aggravation, recurrence, acceleration, exacerbation or deterioration. He said she needed to be assessed by a psychiatrist.
Dr Tony Kostos
110 In March 2012, Dr Kostos, rheumatologist, examined the plaintiff at the request of the defendant’s solicitor. It was his opinion that the plaintiff presented with a Chronic Pain Syndrome, with no physical explanation for her symptoms. He found that there was no evidence of ongoing problems from a physical injury that occurred in the workplace. He said non-physical factors predominate the plaintiff’s presentation.
Dr Dush Shan
111 Dr Shan, psychiatrist, examined the plaintiff in April 2012 and January 2013 at the request of the defendant’s solicitor. Dr Shan obtained a history that the plaintiff suffered physical injuries in the early 1990s, but ceased work in 2001 when her main complaint was her lower back.
112 Subsequently, she developed psychological symptoms. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with a Pain Disorder with both psychological factors and a medical condition. Both were a consequence or secondary to the physical injury. He said the plaintiff had no capacity for her pre-injury employment and her capacity for domestic and social activities is reduced. He said that if she is restricted with pain, then she has no capacity for any work whatsoever.
113 In May 2012, after considering further medical reports he concluded the plaintiff’s employment is no longer a significant or material contributing factor to the condition of Adjustment Disorder and pain disorder. He found that the significant contributing factor was the plaintiff’s personality and disposition. No employment-related psychiatric or psychological condition contributes to an incapacity for work.
Mr John A L Hart
114 In February 2013, Mr Hart, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. He said the plaintiff presented with a Chronic Pain Syndrome affecting most of the body, but with particular involvement of the neck, shoulders, lumbar spine and her right hip. She had multiple tender areas consistent with a diagnosis of fibromyalgia. She complained of low-back pain at various times, which was reported on imaging. However, Mr Hart concluded the low-back pain was a degenerative disorder unrelated to any specific injury at work. He noted that as of July 2001, there was a well-established history of left shoulder pain and neck pain. He said the plaintiff presented with a marked functional component and psychological reaction to her symptoms. He said the plaintiff had no work capacity due to her fibromyalgia and the psychological reaction to it. He thought the fibromyalgia was well established prior to the episode in July 2001 and is the cause of her current complaints, particularly with respect to her left shoulder.
115 Mr Hart said he did not believe the fibromyalgia was caused by the plaintiff’s work, but pain from her fibromyalgia would have been aggravated by her work, particularly between 1999 and 2001. He said the effect of that aggravation has now ceased and her current condition is no longer related to her work.
The Medical Panel Opinion
116 The Medical Panel examined the plaintiff’s problems on 2 June 2004 and concluded that the plaintiff was suffering from a Chronic Pain Syndrome, secondary to an initial soft-tissue injury of the left shoulder, relevant to the claimed injury to back, left arm, right shoulder, right arm and neck.
117 On 22 July 2005, the Medical Panel concluded that the plaintiff suffers from a Chronic Pain Syndrome and a Major Depressive Disorder with psychotic features relevant to the claimed left shoulder injury. Any current incapacity for work is still materially contributed to by the left shoulder injury and its psychiatric sequelae.
The Plaintiff’s credit
118 The plaintiff’s credit was not in issue. The plaintiff gave her evidence through an interpreter. She answered questions directly. She made concessions. I considered her evidence was truthful. She was described by medical witnesses as hard working, with a good work ethic. She impressed upon the Court the importance that work held for her. She told Dr Kornan she did not like being dependent upon her husband. The evidence was that she performed heavy work, and when she injured herself at work she was keen to return to work.
Analysis of the evidence
Nature of the Injury: Psychiatric/psychological Injury (“the Paragraph (c) Disorder”)
119 In opening submissions counsel for the plaintiff submitted that the mental behaviour or disturbance was the stronger basis for the plaintiff’s application. Accordingly I will consider the psychiatric/psychological aspect of the plaintiff’s application first.
120 The plaintiff’s condition was variously described as:
· Complex Pain Syndrome which has resulted in worsening symptoms of depressed moods, emotional lability and tearfulness, feelings of isolation, social withdrawal, insomnia, sexual dysfunction, irritability and diminished motivation and concentration[44]
[44]Dr Mazzoni
· Chronic Adjustment Disorder with Mixed Anxiety and Major Depression along with a Myofascial Pain Syndrome[45]
[45]Dr Brian Strubel
· Adjustment Disorder with Depression and psychosomatic manifestations resulting from physical (back) and emotional injuries which she suffered during the course of her employment; loss of employment and status as an earning member of the family and loss of self-worth and self-esteem as a consequence[46]
[46]Dr Thacore
· Major Depressive Disorder, recurrent; Adjustment Disorder with Anxiety, and Pain Disorder associated with psychological factors[47]
[47]Dr Paul Kornan
· Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with a Pain Disorder with both psychological factors and a medical condition.[48]
I now turn to examine the evidence that informs the basis of these descriptions of the plaintiff’s disorder.
[48]Dr Dush Shan
121 The plaintiff is aged fifty-eight and migrated to Australia when she was seventeen years of age. Apart from a period between 1976 and 1988 when she was a homemaker, caring for her young children, she has, in large part, worked as a manual worker. She commenced work with the defendant in 1989. Initially she worked as a process worker then she worked on the extruder machine as a machine operator. She was required to pack hoses into boxes, cutting up to 3,000 hoses or tubes per day with a knife. She was required to repetitively lift and carry bags of resin weighing 25 kilograms and place them into a hopper and mix them, as well as dies weighing approximately 12.5 kilograms.
122 In approximately 1993, while at work, she suffered pain in her low back, and sought medical treatment from Dr Senini, the company doctor, who prescribed anti-inflammatory medication and x-ray. The plaintiff’s evidence was that her low-back pain continued on an intermittent basis; however, she continued working without taking time off.
123 She suffered further work injuries to her left knee which resulted in surgery and physiotherapy. In mid-1994, she suffered pain in her left shoulder, for which she was prescribed anti-inflammatory medication and referred to physiotherapy. The left shoulder pain settled; however, it continued on an intermittent basis.
124 In October 1995 Dr Mazzoni recorded that the plaintiff complained of 5 months being anxious and depressed and prescribed Prozac. The plaintiff could not remember the attendance, but said she took medication which improved her condition. She thought work was causing her to be anxious and depressed.[49]
[49]T 32
125 On 7 July 1998 Dr Mazzoni recorded that the plaintiff reported sharp left anterior pain, and of feeling nervous.[50] The plaintiff said she could not remember.
[50]T 33
126 The evidence is that the plaintiff consulted the company doctor, initially Dr Senini then Dr Hayes, and on occasions her personal general practitioner, Dr Mazzoni.
127 On 5 March 1999, the plaintiff experienced an aggravation of her left shoulder pain whilst operating a machine at work. She attended the company doctor, Dr Hayes, who prescribed anti-inflammatory medication and physiotherapy. She had time off work. Within the month, Dr Hayes’ records note that her left shoulder was much improved – “feels 95% okay”, although the improvement was not maintained. She returned to work performing light duties.
128 On 26 March 1999 Dr Mazzoni recorded the plaintiff reported headaches and stress.
129 In April 1999 Dr Hayes cleared the plaintiff for normal duties.
130 In June 1999, while still on light duties, the plaintiff suffered a further exacerbation of her pain symptoms in her neck, left shoulder and left arm, which she reported to Dr Hayes. She received an injection and underwent an ultrasound.
131 In August 1999 she was referred to Dr Marian Miller, rheumatologist, who subsequently referred her to Ms Bea Farquhar, rehabilitation therapist.
132 Dr Miller diagnosed a regional pain syndrome and said it was important that the plaintiff remain at work and develop pain management strategies for use in the work place. In cross examination Dr Miller said that many medical experts in the field view Regional Pain Syndrome as localised fibromyalgia, and she said that was a helpful analogy.[51] From a rheumatological perspective, her view was that fibromyalgia is physically based.[52] It is clear that Dr Miller was commenting on a physical diagnosis of fibromyalgia.
[51]T144
[52]T145
133 Counsel for the defendant submitted that the plaintiff had a well-established condition of fibromyalgia prior to 20 October 1999 which defeats any paragraph (c) disorder after that date. However, I reject the defendant’s submission in that regard. I accept that Dr Miller is the pre-eminent opinion on the plaintiff’s fibromyalgia as at 1999. Dr Miller said the idea that fibromyalgia is a psychiatric diagnosis was a new concept to her. She said the diagnosis of fibromyalgia is a medical diagnosis not a psychiatric one. In cross-examination, Dr Miller said that a patient with fibromyalgia syndrome may become depressed or anxious. Yet there was no report by Dr Miller of stress, anxiety or depression in relation to the plaintiff; this is consistent with Dr Hayes’ medical records. Dr Miller failed to note any stress or psycho-social symptoms at the time of the plaintiff’s diagnosis. Dr Miller said that stress can help to maintain Chronic Pain Syndrome, but that is different from saying it is a psychological condition or a psychiatric diagnosis.[53] I accept that the plaintiff was not suffering a psychological condition prior to, or as at 20 October 1999, as a result of fibromyalgia. I accept Dr Miller’s evidence that fibromyalgia is physically based. I take into account that as at 1999, Dr Miller provided an expert view that the plaintiff was suffering from physical-based fibromyalgia.
[53]T146
134 In September 1999, Ms Farquhar suggested moderation to the plaintiff’s work duties. The plaintiff continued to work on the extruder machine. On occasions, she had assistance with lifting and carrying the 25‑kilogram bags of resin. On other occasions, she lifted them herself. She was prescribed medication and her pain symptoms reduced. She continued working.
135 By September 1999, Dr Hayes recorded that there was a steady improvement and the plaintiff was performing normal duties. Dr Hayes said she had no record of stress or anxiety and depression in her clinical notes. The plaintiff did not attend Dr Hayes between 18 October 1999 and March 2000.
136 In re-examination the plaintiff confirmed that by October 1999 she was pain free and returned to full duties performing heavy work lifting 25 kilogram bags regularly throughout the day. She said that when Dr Hayes prescribed light duties during the course of 1999 she was more often than not required to perform heavy duties.[54] I accept that the plaintiff was performing heavy work after October 1999.
[54]T61
137 Counsel for the defendant submitted that the plaintiff was suffering depression for her treatment at work from 1999 at least and probably earlier. He referred to the attendance by the plaintiff upon Dr Mazzoni in 1995 when he prescribed Prozac on two occasions. Initially, the plaintiff could not remember the reason for the attendance, but when she asked whether it was to do with work, she agreed. However, the evidence was the plaintiff continued to work and maintain her family and social life. Accordingly, I accept that any complaint of depression in 1995 was an isolated event.
138 Counsel for the defendant drew attention to the plaintiff having reported to some medical witnesses[55] that even when she was still working she started to develop depression and anxiety because of the pain, however she wanted to continue to work. Counsel relied upon the plaintiff’s complaint to Dr Strubel that, after she reported her shoulder injury at work in March 1999 she was not treated well at work, which upset her very much. Further Dr Nathar reported that while she was at work the plaintiff said she had already started to develop depression and anxiety due to the pain. In cross examination the plaintiff agreed that when she developed pain, she started to become depressed and anxious, but wanted to continue working,[56] and she thought it would be okay. While I accept the plaintiff reported these complaints, the medical evidence is that she was not diagnosed or treated for a psychological condition. In fact a number of the medical witnesses who were examined her after March 1999 made specific comment that the plaintiff was not showing signs of stress, anxiety or depression. I refer to the evidence of Dr Hayes, Dr Lewinsky and Mr Blyth, psychologist.
[55]Dr Nathar and Dr Strubel
[56]T51
139 In February 2000, the plaintiff complained to Dr Mazzoni of low-back strain which she attributed to dancing.
140 As at April 2000, the plaintiff was not reporting to the Company doctor, Dr Hayes, symptoms of anxiety and depression.
141 In May 2000, the plaintiff complained to Dr Mazzoni of longstanding history of work-related neck, left shoulder and back pain. She was advised to persevere with physiotherapy and was prescribed oral prednisolone.
142 In August 2000, Dr Lewinsky from Cedar Court said he assessed the plaintiff for a rehabilitation program. He diagnosed myofascial type symptoms and said there was no evidence of depression or significant pain behaviour. His view was supported by Mr Blyth, psychologist at the Centre. He said there were stresses from pressure at work.
143 Between May and October 2000, the plaintiff performed alternative duties, returning to full duties on 6 October 2000. The plaintiff’s evidence was that, for about 9 to 10 months prior to the incident of July 2001, she worked normal duties operating the extruder machine as well as cutting and packing hoses and tubes. Her pain symptoms continued on an intermittent basis and she worked without taking time off.
144 In July 2000 the plaintiff first consulted Dr Patrick, rheumatologist. It was his impression that the plaintiff developed a diffuse myofascial pain syndrome. I accept that as a rheumatologist he approached the diagnosis of pain syndrome from a physical perspective. Dr Patrick recommended rehabilitation and recorded that there was no evidence of significant depression or significant pain behaviour. This is consistent with Dr Lewinsky of Cedar Court who reported in August 2000 that “Mr Blyth confirmed my overall impression and more specifically notes no evidence of depression or specific pain behaviour.”
145 In late June 2001, the plaintiff reported lifting large coils of hose, weighing approximately 20 kilograms, to place on pallets. She suffered pain in her right groin going around to her right hip. She was off work on holidays in the first week of July and saw Dr Mazzoni. She returned to work on 9 July 2001.
146 When the plaintiff returned to work in July 2001, she was required to operate the extruder machine. She pulled the extruder part of the machine away from the rest of the machine and suffered shooting pain all over her body. She attended Dr Mazzoni and was prescribed physiotherapy, hydrotherapy and an ultrasound of her left shoulder. She could not return to work. Her worst pain was in the left shoulder, but she continued to have pain in her neck, upper and lower back. Thereafter, the plaintiff did not return to work.
147 Dr Patrick last saw the plaintiff in August 2001, and his report made no mention of the plaintiff’s psychological state.
148 The plaintiff’s evidence was that following the work incident in mid July 2001 she sought medical treatment for her physical injuries. Her pain symptoms increased in her neck, left shoulder, left upper arm and in her lower back, which at times radiated down her legs. Due to her worsening pain she began to feel depressed and anxious. She had difficulty sleeping and suffered from diminished concentration and motivation. In early 2002 her general practitioner, Dr Mazzoni prescribed anti depressive medication, and medication for her insomnia. In about April 2002 she was referred to a psychologist, Dr Strubel for treatment. In 2003 she was referred to a psychiatrist, Dr Thacore for treatment.
149 The plaintiff’s evidence was confirmed by Dr Mazzoni. In April 2002, he said the plaintiff experienced left shoulder girdle and posterior neck pain and stiffness as well as low back pain. She subsequently developed a Complex Pain Syndrome and was unable to return to work. Her general debility and chronic pain resulted in worsening symptoms of depressive moods, emotional lability and tearfulness, feelings of isolation, social withdrawal, insomnia, sexual dysfunction, irritation and diminished motivation and concentration. Dr Mazzoni described the plaintiff as genuine and said she was unfit to return to work due to her physical and mental state.[57]
[57]Dr Mazzoni, PCB 32
150 In 2012 Dr Mazzoni said the plaintiff was totally incapacitated for pre-injury or alternative duties due to her debilitating chronic pain syndrome and her depressive disorder. In evidence he said his views expressed in 2012 and 2013 in relation to her physical and emotional state had not changed. He said her chronic pain syndrome, subsequent to her left shoulder injury contributed to her resultant depressive illness. He said that she was a severely disabled distraught lady in pain basically with limited functional status. He said she was willing to work, but her condition deteriorated and she did not know how to.[58]
[58]T 93
151 The plaintiff was referred to Dr Strubel, psychologist, in April 2002. Dr Strubel treated the plaintiff on a regular basis over many years until his retirement in 2013. In 2003, he diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood coupled with a Chronic Pain Syndrome. He said she suffered moderate to severe depression which was caused by her physical injuries at work. In 2004, he said she began to suffer a major depressive episode with mood incongruent psychotic features as evidenced by her general demeanour and self-reporting of both visual and auditory hallucinations. In 2013, he said she was psychologically unfit for all types of work, which is indefinite, and is essentially unemployable. She required ongoing psychological and psychiatric treatment. Her progress remained poor. Dr Strubel said she had a high work ethic and felt frustrated that she was unable to work and was dependant on her husband.
152 The plaintiff was referred by Dr Mazzoni to Dr Thacore, psychiatrist, who treated her and prescribed medication between 2003 and 2008. In 2008, he diagnosed an Adjustment Disorder with Depression and psychosomatic manifestation resulting from physical (back) and emotional injuries which she suffered during the course of her employment, loss of employment and status as an earning member of the family, and loss of self-worth and self-esteem as a consequence. He said the plaintiff was unfit for employment, part-time or full-time, and did not see her being employable in the foreseeable future. He said she required ongoing psychotherapeutic support, was prescribed medication, and was being seen fairly regularly every three to four weeks.
153 In May 2013, Dr Kornan diagnosed a Major Depressive Disorder (recurrent), an Adjustment Disorder with Anxiety, and a Pain Disorder associated with psychiatric factors which was work related. He said the plaintiff was unfit for any employment. She should continue with her local doctor and have occasional psychology visits. He said her prognosis was poor and her condition is chronic and disabling.
154 The majority of the defendant’s psychiatrists expressed a different view.
155 Dr Nathar and Dr Entwisle examined the plaintiff in 2002 and 2003 respectively. At that time both accepted the plaintiff suffered a psychiatric injury and that work was a significant contributing factor.
156 Dr Entwisle was provided with a report from Mr Davie dated 23 September 2003, who expressed the view that there was a significant exaggeration of her problems. As a result, in October 2003, Dr Entwisle said that on the basis of Mr Davie’s report it would be hard to say that work was a contributing factor. Yet in April 2004, Dr Entwisle provided a further report where he diagnosed an adjustment disorder with depressed mood and somatic equivalents. He said work is a significant contributing factor.
157 In 2004 Associate Professor Mendelsohn described the plaintiff’s symptoms as “relatively mild” and, like Dr Botvinik, said the plaintiff’s psychiatric condition was secondary to her physical condition.
158 Dr Botvinik was asked to consider the reports of Mr Battlay and Dr Littlejohn. Based on their reports he said the plaintiff’s psychiatric symptoms were unrelated to her work. Dr Botvinik said from a psychiatric perspective there is not likely to be a permanent impairment. This is inconsistent with Dr Entwisle who said there was a degree of permanent impairment.
159 More recently, Dr Shan, psychiatrist, initially said the plaintiff developed psychological symptoms, which were work related. He later changed his view after considering the reports of Dr Entwisle of 6 and 14 October 2003 and the reports of Dr Botvinik of 8 November 2004 and 5 January 2005. In January 2013, Dr Shan diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with a Pain Disorder with both psychological factors, and a medical condition. It was Dr Shan’s view the plaintiff had no capacity for her pre-injury employment, and her capacity for domestic and social activities was reduced. He also said if she is restricted with pain then she has no capacity for any work whatsoever.
160 Dr Kornan considered the views expressed by the psychiatrists relied upon by the defendant.[59] He said they relied upon the opinions of Dr Littlejohn and Mr Battlay who said there was no relationship between her work injury and the pain syndrome. He noted that Dr Shan, psychiatrist, in his most recent report dated January 2013 concluded that her employment was now no longer a significant or material factor to her Adjustment Disorder.
[59] Dr Dush Shan, Dr Nathar, Dr Botvinik, Professor Mendelson, Dr Neill and Dr Das
161 Dr Kornan said that from a psychiatric perspective, “It is well understood that even if the initial pain contribution from the physical in fact ceases, that in many cases” – in which he included the plaintiff – “the persisting ongoing Pain Syndrome and persisting Pain Disorder and mood difficulties often persist unchanged”. He said even if it was accepted that the work contribution had ceased, there are many patients who continue to be significantly disabled on psychiatric grounds long term.
162 I prefer the evidence of Dr Kornan to the evidence of the defendant’s psychiatrists. His reasoning is logical and explains why he disagrees with the medical evidence of the defendant’s psychiatrists. Furthermore, he examined the plaintiff on three occasions. Dr Kornan’s evidence is consistent with the plaintiff’s treaters in relation to the plaintiff’s psychiatric condition. The treaters have seen the plaintiff on many occasions over many years: Dr Mazzoni since 2001, Dr Strubel since 2002 to 2013, and currently Ms Schroder. I consider they are in the best position to comment on the plaintiff’s condition. In addition the plaintiff’s psychiatric evidence is current. The only current psychiatric evidence of the defendant is Dr Shan, who examined the plaintiff in April 2012 and January 2013.
163 Furthermore, of the medical witnesses who provided opinions on the plaintiff’s physical injuries, most commented that the plaintiff presented with a marked functional component and psychological reaction to her symptoms.[60] A number of the medical witnesses who commented on the plaintiff’s physical injury said the plaintiff presented with a Chronic Pain Syndrome affecting most of the body but with particular involvement of the neck, shoulders, lumbar spine low back and right hip.
[60]Mr John A L Hart; Mr T J Russell; Dr J Littlejohn who he said the plaintiff developed a Chronic Pain Syndrome unrelated to any soft tissue injury; Mr Brendan Dooley; Mr Anthony Buzzard who said the plaintiff required assessment by a psychologist/psychiatrist; Dr Ralph Poppenbeek who said the plaintiff had a substantial emotional or anxiety component to her presentation; Mr Chris Haw commented on the plaintiff’s psychological state.
164 I accept that the plaintiff suffers an Adjustment Disorder with Depression and Anxiety, as well as Chronic Pain Syndrome.
165 Most of the medical witnesses obtained a history of psychological stresses in the workplace, namely the plaintiff’s interaction with her supervisor. The reports of some of the medical witnesses noted the history; however, the conclusions of the most recent reports of Dr Mazzoni, Dr Strubel and Dr Kornan do no address this issue. Accordingly, on the conclusions in the recent reports I accept the medical witnesses place little weight on this aspect.
166 This is a case where the paragraph (c) disorder the plaintiff hopes to establish is derived from compensable physical injury. Although the plaintiff relied on either paragraph (a) or (c), in reality the plaintiff’s case relied heavily on a (c) disorder that is predicated on an organic injury.
167 I accept the medical evidence is that the plaintiff’s psychiatric conditions emerged after October 1999, certainly after July 2001, and most probably in and around 2002 when she was referred by Dr Mazzoni to a psychiatrist.
168 As a preliminary point regarding the plaintiff’s Chronic Pain Syndrome, prior to October 1999, I accept Dr Miller’s evidence that the diagnosis of fibromyalgia was a physically-based diagnosis of regional pain syndrome, for the reasons I have outlined above. Accordingly, this does not preclude an examination of the Chronic Pain Syndrome from a psychiatric perspective after October 1999.
169 In respect to the Adjustment Disorder with Depression and Anxiety, I accept that in and around 1999/2000 the plaintiff was not diagnosed or treated for any major Depressive Disorder or Anxiety. I have taken into account that the plaintiff reported feelings of stress, nervousness or anxiety while still working. However, this was self-reporting by the plaintiff. There was no medical evidence that she was diagnosed and treated for a Depressive Disorder or Anxiety. Indeed, the plaintiff was able to maintain her work, albeit with some intermittent functioning, and was recorded as being pain free.
170 The plaintiff’s evidence was that after seeing Dr Patrick in August 2001, her pain symptoms gradually intensified. She experienced pain in her neck, left shoulder left upper arm and lower back, which at times radiated down her legs. Due to her worsening pain she felt depressed and anxious, had difficulty sleeping, suffered from diminished concentration and motivation. She felt isolated and withdrawn, her libido decreased, and she felt irritable. The medical records of Dr Mazzoni note on 1 February 2002 “worsening signs of depression”. He listed the abovementioned complaints and noted “commence Zoloft 50 mg daily”. Accordingly I accept that the level of depression became more significant around February 2002, when the plaintiff received treatment and was prescribed medication from Dr Mazzoni, and was referred to Dr Strubel and Dr Thacore.
171 I accept the medical evidence is that the plaintiff’s psychiatric conditions emerged after October 1999, certainly after July 2001, and most probably in and around February 2002 when she was referred by Dr Mazzoni to a psychologist. In accordance with Wingfoot Australia Partner Pty Ltd v Jovevski:[61]
“…the experience of the courts is that the onset of psychiatric illness is often found to be gradual and frequently post dates the physical trauma which triggers it.”
[61][2014] VSCA 21 at [33] subparagraph (c)
172 I find that the plaintiff was engaged in heavy manual work between October 1999 and July 2001 when she ceased working. I also accept the incident at work in July 2001 whereby she felt shooting pain all over her body, and in particular in the left shoulder region. This is supported by the reports of Dr Mazzoni, the plaintiff’s evidence, and the history she reported to medical witnesses.
173 Most of the medical experts who expressed a view on the plaintiff’s psychiatric condition agreed it was related to the physical work injury. Dr Mazzoni said the plaintiff developed a pain syndrome and depressive disorder; he attributed this to the plaintiff’s work and said that he observed the deterioration of her condition after July 2001. Dr Thacore said the plaintiff suffered an Adjustment Disorder with Depression and Psychosomatic Manifestations resulting from the physical/back injuries which she suffered during the course of her employment. Dr Strubel said the plaintiff continues to suffer from a Chronic Adjustment Disorder with mixed anxiety and depressed mood along with Chronic Pain Disorder, which was caused by the compensable injury. Dr Kornan said her psychological decompensation in 2001 was caused by the physical injuries she experienced during the course of employment. Dr Kornan said her condition was caused by employment.
174 On the evidence, I take the view that the plaintiff suffered an Adjustment Disorder with a Depressive Disorder and Anxiety, as well as a Chronic Pain Syndrome. I accept that the aggravation is causative of the plaintiff’s psychiatric injury. Given the medical evidence and the plaintiff’s evidence, I am satisfied on the balance of probabilities that the conditions were brought about or triggered by the post 20 October 1999 compensable aggravation of the plaintiff’s soft-tissue injury.
175 In making my findings on the paragraph (c) disorder, I have not precluded the plaintiff’s claim for an organic injury arising from the course of her employment from October 1999 to July 2001, or an organic injury arising from the incident resulting in an aggravation in July 2001. However, it is not necessary for me to examine the material as a paragraph (a) injury, as I have determined that the plaintiff suffers a paragraph (c) disorder.
Medical Panel Opinion
176 Counsel for the defendant relied upon the Medical Panel Opinions of 2 June 2004 and 22 July 2005.
177 The Medical Panel Opinions are relevant, but not binding upon me. I have had the opportunity of the cross examination of the plaintiff, Dr Miller, Dr Mazzoni, Dr Haw and Mr Kossmann. In addition, it is unclear whether the Medical Panels had access to the medical records of the treating doctors. It is clear the Panels did not have up to date medical reports. Furthermore, the issues I must determine are different to the issues before the Panels. In particular the Panels answer questions with specific reference to the March 1999 injury. They are not asked questions about work between October 1999 and July 2001.
178 The relevant point about the Medical Panel Opinions is that they disagree with the defendant’s doctors who adopt the view that once the plaintiff ceased work, any pain the plaintiff suffered is not related to work.
Disentanglement
179 Counsel for the defendant submitted there is a disentanglement issue in respect of the physical and psychiatric aspects of the plaintiff’s claim.
180 In essence, the issue is whether, and to what extent, I can be satisfied that the plaintiff’s current psychiatric/psychological consequences of a physical injury are to be taken into account for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.[62]
[62]s134AB(38)(h)
181 I am guided by the evidence of Dr Kornan, who is supported by Dr Thacore, Dr Strubel and Ms Schroder. Dr Kornan, psychiatrist, examined the plaintiff in December 2011 and 2012 and again in April 2013.
182 Dr Kornan said it was well understood that even if the initial pain from physical factors ceased, in many people (and he would include the plaintiff in that group), the ongoing Pain Syndrome and persisting Pain Disorder and mood difficulties often continue unchanged. Many patients continue to be significantly disabled on psychiatric grounds long term. Dr Kornan said the plaintiff’s prognosis is poor, her condition is chronic and disabling. He accepted her condition was consistent with having been caused by her employment and the after effects.
183 In view of Dr Kornan’s evidence, it is clear the difficulties of a Pain Disorder and the sufferer’s experience of pain continue unchanged, long after abatement or cessation of a physical trigger. A Pain Disorder continues to maintain clear consequences for the plaintiff.
184 In respect of the Adjustment Disorder and Depressive Disorder and Anxiety, the consequences of this are significant, and are referable to the fact that the plaintiff continues to attend ongoing psychiatric treatment and is prescribed anti-depressant medication.
Consequences
185 I must make the assessment of injury at the time of hearing the application. In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. I will be assisted by the more recent medical opinions in this case: the reports of Dr Mazzoni, Dr Strubel, Ms Schroder, Dr Kornan and Dr Dush Shan.
186 The plaintiff has received psychological and psychiatric treatment. The plaintiff’s evidence was that she consults Dr Mazzoni monthly, who prescribes medication. Dr Kornan said the plaintiff received psychiatric treatment on a monthly basis from Dr Thacore since September 2003 until he retired in 2008. From April 2002, she attended a psychologist, Dr Strubel, until he retired in 2013. The plaintiff now sees Ms Kris Schroder, psychologist, monthly.
187 The plaintiff’s evidence is that she currently takes medication of OxyContin 15 milligrams in the morning and 10 milligrams in the evening. She takes two 100 milligram doses of Zoloft daily. She takes Temazepam to help her sleep, and Diazepam daily, as well as Lyrica in the morning and in the evening. She also takes Celebrex, an anti-inflammatory agent. The medical witnesses thought her treatment was appropriate. The plaintiff has received regular psychiatric/psychology treatment and medication since 2001. This is a significant consequence that I can take into account.
Employment
188 In relation to employment, Dr Strubel, Dr Kornan and Ms Schroder said from a psychiatric/psychological perspective the plaintiff was unfit for any employment. Both Dr Kornan and Ms Schroder said they did not expect to see any further change. Ms Schroder said the plaintiff was unfit for any vocational training. Dr Mazzoni and Dr Dush Shan did not address the plaintiff’s work capacity in relation to the psychiatric injury alone. Accordingly their reports do not assist me in the task I am required to undertake.
189 The plaintiff reported to a number of doctors her desire to return to the workforce. The plaintiff has performed heavy work for most of her adult life.
190 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[63]
[63]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra)
191 Given the medical evidence, I am satisfied that the plaintiff cannot return to work. The plaintiff is aged fifty eight years. She has been out of the workforce for thirteen years. The plaintiff reported to medical witnesses her desire to work. I accept that her inability to return to work represents a significant loss to this plaintiff, particularly given her work history and what she reported to medical witnesses over the years regarding the importance of work to her. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
192 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as “severe” within the Act when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments.[64]
[64]Stijepic v One Force Group Aust Pty Ltd & Anor (supra) at paragraph [44]
193 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
194 Given the medical evidence of Dr Kornan, and the psychological evidence of Dr Strubel and Ms Schroder that the plaintiff has no capacity for work currently or into the foreseeable future as a result of her mental condition, I find the plaintiff is effectively out of the workforce for any employment as a result of her mental condition. Accordingly, there is no need to go into an analysis of wage rates, as I do not accept that she has any residual capacity, given the medical evidence.
195 Given the plaintiff’s level of medication, which is supported by her treating doctors, I accept she does not have the capacity to return to work or participate in any form of treatment or rehabilitation that will return her to any meaningful work in the foreseeable future.
196 I accept that the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
197 In view of the matters I have described, the plaintiff has discharged the onus with respect to her mental condition regarding her loss of earning capacity.
198 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
199 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered over the course of her employment with the defendant after 20 October 1999.
200 In view of my findings, it is not necessary for me to consider whether the low back constitutes a “serious injury” under s134AB(37)(a).
201 I will hear the parties on costs.
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