Murray v Snow and Victorian WorkCover Authority
[2013] VCC 825
•25 June 2013
| 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-11-05162
| BRONWYN JOAN MURRAY | Plaintiff |
| v | |
| K & C SNOW | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 October 2012 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Murray v Snow & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 825 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – two separate injuries: neck and right shoulder – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Angelatos v Museum of Victoria [1999] 3 VR 157; Altona Bus Lines v Lococo [2002] VSCA 159; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Dordev v Cowan & Ors [2006] VSCA 254; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted for pain and suffering damages and loss of earning capacity damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr B Hutchinson | Ryan Carlisle Thomas |
| For the Defendants | Mr I Gourlay | Wisewould Mahoney |
HIS HONOUR:
1 This application is brought pursuant s134AB(16) of the Accident Compensation Act 1985 (“the Act”) for leave to claim damages at common law for both pain and suffering and economic loss in relation to injuries to the neck; alternatively, the right shoulder.
2 Both injuries are alleged to have occurred throughout the course of the plaintiff’s employment with the first defendant from 18 September 2006 until 16 October 2007, and/or, in particular, on 16 October 2006 whilst attempting to lift a mould (“the incident”).[1]
[1]Plaintiff’s Court Book (“PCB”) 5-6
The issues
3 The defendants identified the following issues –
(a) nature of the injury suffered by the plaintiff; each alleged injury to the neck and to the right shoulder to be examined separately and its consequences identified;
(b) causation of the alleged injuries to the plaintiff’s neck and/or right shoulder – either in the course of employment, or as a result of a specific event, or due to other reasons;
(c) whether the consequences of the impairment resulting from the injury to the neck or shoulder are more than “significant” or “marked” and are at least “very considerable” so as to meet the statutory test of “serious injury”;
(d) whether the plaintiff has a capacity for suitable employment;
(e) whether the plaintiff could work in suitable employment for 14 hours (or more than 13.2 hours) per week, and whether she has suffered a loss of earning capacity of 40 per cent or more as required by s134AB(38)(e) of the Act.
The legislation
4 The plaintiff is required to prove that she suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of either of the two injuries. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
5 As the plaintiff has alleged two separated compensable injuries, I am required to determine the applications in the following manner:
· First, I am required to identify each injury;[2]
[2]Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183
· Secondly, I should alienate the impairment consequences of each injury;[3]
· Thirdly, as the two injuries affect two different bodily impairments, the consequences cannot be accumulated. Each injury has to satisfy the requirements of a “serious injury” in its own right rather than in combination with the other injury.[4]
[3]Dalton v Dandenong Scaffolding Hire Co Pty Ltd (supra) at paragraphs [14], ]39], [47] and [49]
[4]Angelatos v Museum of Victoria [1999] 3 VR 157, 168; Altona Bus Lines v Lococo [2002] VSCA 159
Causation
6 On 16 October 2007, the plaintiff suffered an injury to her right elbow and forearm while assisting a fellow employee to move a mould. There is no dispute that work contributed to this injury. It is described in the plaintiff’s affidavit material and corroborated by her general practitioner’s clinical notes.
7 The injury to the plaintiff’s right elbow and forearm has been treated and has significantly improved. The plaintiff does not rely upon this injury in this application.
8 The defendants submit that the plaintiff did not suffer an injury to her neck as a result of the incident on 16 October 2007.
9 Similarly, it submits the plaintiff did not suffer in injury to her right shoulder as a result of the incident on 16 October 2007.
10 Further, it submits the plaintiff did not suffer an injury to her neck (or to her right shoulder) as a result of performing the duties of her employment with the first defendant from 18 September 2006 until 16 October 2007.
Circumstances
11 The plaintiff commenced employment with the first defendant on 18 September 2006 as a laminator, producing fibreglass parts for motor vehicles.
12 She worked for 22 hours per week and earned $18 per hour – $396 per week or $20,592 per annum. Sixty per cent of the latter amount is $12,355.20 or $237.60 per week (13.2 hours at $18 per hour).
13 The plaintiff suffered an injury to her right arm and elbow on 16 October 2007 while moving a mould with a fellow employee, Alan Young.[5]
[5]PCB 25-26
14 The plaintiff ceased work immediately following an incident at work on 16 October 2007. Apart from attempts to return to work twice in late January 2008 and once in June 2008 (three single days in all), she has otherwise been off work since 16 October 2007 and has not been seeking employment.[6]
[6]Transcript (“T”) 32, L14-15
Past medical history
15 The plaintiff was involved in a motor vehicle accident in 1987 when her vehicle was struck from behind and she suffered a whiplash injury to her neck. She described the results as follows:
“I wore a neck brace for about a week and my neck was sore for probably three weeks to a month, and then it was fine.”[7]
[7]T11, L1-2
16 The plaintiff suffered a fall in a supermarket in January 2005 as a result of which she injured her neck. She described this event and its consequences as follows:
“… suffered neck pain for about a week or so. It started to come good. A month or two months at the most before it came good … .
… sought treatment from a general practitioner, was referred for x-rays of cervical spine and was advised that had damage at a particular level.”[8]
[8]T13, L6-9
17 The plaintiff obtained treatment related to her neck from a Chinese massage therapist on two occasions prior to March 2007 and following the fall in the supermarket.[9]
[9]T47, L10-18; T55, L1-12
18 Lay witness and fellow employee, Cindy Sanders, deposes[10] that prior to October 2007, the plaintiff had told her that she had previously injured her neck in a motor vehicle accident and continued to experience neck pain as a result. The plaintiff stated[11] she was unable to account for how Ms Sanders would have known about the motor vehicle accident and any neck symptoms related to it. It would appear that the plaintiff could have been the only source of this information. Ms Sanders was not called for cross-examination by the plaintiff.
[10]Defendant’s Court Book (“DCB”) 2)
[11]T37, L25-31; T38, L1-6
19 The plaintiff describes the relationship of her symptoms to her employment with the first defendant at paragraphs 9 to 20 of her affidavit sworn 21 April 2011.[12] She deposes the following:
“● Feeling the strain in my neck whilst holding this [extremely awkward] position;
● Assisting to lift heavy roles of fibreglass;
● Holding my neck and turning from right-to-left and back to more or less relieve pressure;
● During the middle of 2007 I began to feel pain in my right forearm in addition to the discomfort I had been feeling in the neck.”
[12]PCB 24-26
20 The defendants submit that in her affidavit material, the plaintiff does not depose to any specific incident or event resulting in an injury to her neck, or the occurrence of neck pain (using that specific word) during 2007 (for example, Exhibit A, affidavit sworn 21 April 2011, paragraph 15).
21 The plaintiff was cross-examined as follows:
Q:“Then in the following paragraph 15, ‘During the middle of 2007 I began to feel pain in my right forearm in addition to the discomfort I had been feeling in the neck’. Looking at paragraph 15 there, the discomfort you had been feeling in your neck, when did it start?---
A:Several months before the pain in my right forearm.
Q:Can you describe the pain that you were having in your neck?---
A:It was like a slight burning sensation.
Q:Yes, and was it associated with or did it come on after any particular incident, accident or event?---
A:Whilst I was at work?
Q:Just in general, at work or anywhere else?---
A:Yes, when I did lift – as it says here in ‘filling the Jelco canister’ and I had to lift the 20 litre drum.
Q:Do you remember an event when you were lifting or pushing or doing something with a 20 litre drum when the neck pain started?---
A:Not in particular, no.
Q:Are you assuming that because you did something that might have been quite heavy and you make a reference there to a strain in your neck while holding a position which was apparently an awkward position that that was the cause of – start of your neck pain?---
A:It could have been.
Q:That could have been. Could anything else have been. As I say, were there any events when something happened, you bumped your neck or you had another fall or did anything around - - -?---
A:No.
Q:- - - early ’07?---
A:No.”[13]
[13]T14
22 Although there was no particular incident that she could recall, the plaintiff does state that a slight burning sensation came on whilst she was at work when she did lift whilst “filling the Jelco canister”.
Injury to neck and/or right shoulder on 16 October 2007
23 The plaintiff consulted a general practitioner, Dr Sue Comerford, at Healesville Medical Centre on 17 October 2007. Extracts from her clinical notes[14] are discussed at Transcript 210, line 23. The plaintiff agreed that these consultations related to symptoms in her right elbow and forearm.
[14]Exhibit 18
24 Subsequent consultations with the general practitioner, Dr Comerford,[15] also related to treatment of the plaintiff’s right elbow and forearm on:
[15]Exhibit 18
(a) 31 October 2007;
(b) 16 November 2007;
(c) 30 November 2007; and
(d) 14 December 2007.
25 The plaintiff apparently made her first complaint on 16 January 2008 of neck pain symptoms to Dr Comerford, who recorded “ache and stiffness lower neck”, without any particular noted reference to work. This was approximately three months after the incident. This consultation is also before the plaintiff attempted to return to work on 21 January 2008 and 23 January 2008.[16]
[16]Clinical note dated 25 January 2008
26 The defendants therefore submit that the plaintiff has not demonstrated that she suffered an injury to her neck or right shoulder caused by her work performed with the first defendant between 16 September 2006 and 16 October 2007.
27 Further, the plaintiff submitted a Claim Form dated 5 November 2007[17] detailing the events of 16 October 2007 and claiming injury to the following parts of her body:
“[S]trained tendons in right arm – tendinitis.”
[17]Exhibit 1
28 The Claim Form included a description of the event as follows:
“[L]ifting and turning a mould [car front] from the mould rack. Felt a burning sensation when turning the part of in my right arm from my elbow down to my wrist.”
29 The Claim Form made no reference to any injury to the neck.
30 The plaintiff gave evidence as to the onset of neck pain after 17 October 2007 as follows:
“[M]y neck started to get sore several days later – it had been sore off and on.”[18]
[18]T21, L15-20
31 When it was put to the plaintiff that her neck was not sore at the time she saw the doctor on 17 October 2007, she replied:
“No [not that I remember].”
32 Further, the defendants point to medical reports provided by medico-legal practitioners for both the plaintiff and the defendants recording different histories as to how and when she injured her neck and/or right shoulder:
(a) Mr P Battlay records a history that neck pain first occurred three months after the October 2007 incident when vacuuming on a return to work plan;
(b) Messrs. Elder, Jones and Kossmann record a history that symptoms came on later (after 16 October 2007), attributing it to the use of a sling for her right elbow;
(c) Dr Kostos took a history that traction performed by a physiotherapist aggravated her (long-standing) condition;
(d) Mr Doig reported that it came on before the incident on 16 October 2007 while working with an industrial vacuum cleaner – see also the plaintiff’s evidence confirming this;[19]
[19]T58, L19-24. This explanation was complicated by further evidence at T61, L27-31 where the plaintiff said that she did not begin to make the vacuum cleaners until about July/August. This may call into question whether any treatment for neck symptoms by Maureen Gale (Exhibit 17) in March 2007 was not work-related.
(e) Dr Horsley reported that by January 2008, the plaintiff was experiencing neck pain, but did not record any explanation why;
(f) Mr Wilde and Dr Yong record a history that the plaintiff injured her neck and right shoulder on 16 October 2007.
33 As to varying histories provided to medical practitioners, see Sejranovic v Berkeley Challenge Pty Ltd.[20]Also see Dordev v Cowan & Ors.[21]
[20][2009] VSCA 108 at paragraphs [145], [146], [177] and [178]
[21][2006] VSCA 254
34 In Sejranovic,[22] the Court of Appeal said as follows:
“In a number of cases, this court has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as historian. A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms ‘may have little or no probative weight where the court determines that such witness is not reliable’.
…
However, the fact that a court determines that a claimant is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by that claimant should be disregarded. For example, in Cakir v Arnott’s Biscuits Pty Ltd this court held that an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the appellant’s serious injury application under s 134AB of the Act. In that case, the County Court judge had refused the appellant’s application because he did not accept that he was a truthful witness. On this basis, all of the medical opinions in his favour were rejected. On appeal, this court held that the judge erred in failing to analyse and give appropriate weight to all of the evidence, including objective evidence which sustained a finding that the appellant had suffered a serious injury. … .”
[22]Sejranovic v Berkeley Challenge Pty Ltd (supra) at paragraphs [145] and [146]
Causation: medical histories
35 The defendants had the plaintiff examined by occupational physician, Dr David Elder, on 9 September 2010 for a “dual purpose medical assessment”.[23] Therein, Dr Elder stated:
“I note that you have accepted liability for the claimed right arm injury and will require my comments regarding impairment for this injury. You also require my comments regarding liability and impairment for the claimed right shoulder and neck injury.”[24]
[23]Exhibit 8, DCB 37
[24]Exhibit 8, DCB 37
36 Part of the material he had been provided with included medical reports from Dr Chris Baker, dated 24 November 2009 and 22 April 2010;[25] Mr Peter Battlay, dated 24 December 2008;[26] Dr Tony Kostos, dated 5 June 2008 and 12 March 2008;[27] the Worker’s Injury Claim Form, dated 5 November 2007;[28] and the Worker’s Claim for Impairment Benefits, dated 18 June 2010.[29]
[25]Exhibit 8
[26]Exhibit 7
[27]Exhibit 6
[28]Exhibit 1
[29]Exhibit S
37 The history included the plaintiff stating she first developed pain and burning sensation in the forearm muscles of her right arm which had been sore for about two months prior to 16 October 2007. On the latter date, she was lifting a heavy mould off a shelf and she felt an increase in the burning sensation in her forearm. She went to see her general practitioner and the arm was placed in a sling for a few weeks. She stated that because she was wearing the sling, she noted increasing pain in her neck that had started about the same time. The neck pain radiated through the trapezius and supraspinatus muscles. The general practitioner sent her for a rheumatological opinion and she received an injection in her shoulder which did not help. She was then sent to an anaesthetist/pain physician who thought that she had referred pain from her neck, so he organised facet joint injections for about two months and then she went on to have radio-frequency denervation, which again was of no help.
38 Dr Elder noted that all of the medical treatments for all of her symptoms had been paid for by the insurer. The plaintiff had had ongoing physiotherapy, which did not make any big difference, so she ceased that treatment in November 2009 and essentially has not had any medical treatment thereafter. The symptoms, however, continued by way of neck pain and burning sensation through the course of the supraspinatus and trapezius muscles. This gave rise to an ache which radiated from the shoulder down towards the elbow and also a dull ache in the right forearm extensor compartment. She described it as like a toothache in her arm. She also had intermittent decreased sensation in the ulna, three fingers, and up the inside of her forearm. At the time she was not taking any tablets because “they made me stupefied all of the time”.
39 The plaintiff gave a past medical history of a motor vehicle accident in 1981 when she suffered a whiplash associated disorder. Five years ago, she had a fall jerking her neck. X-rays were done at that time and it was suggestive of an abnormality at C6. She had no significant treatment arising out of these two injuries. She did not describe any other injury to her right arm or shoulder.
40 As to her occupational history, the plaintiff stated that she worked for a company that manufactured HSV fibreglass car kits. She described the general nature of her duties, which were repeated use of both arms, as well as some manual handling activities, and Dr Elder noted “The description of her duties in the documents that you provided to me”.[30] She did try returning to work but only managed two days, and about twelve months later, she tried again making small parts for the same employer but this was not sustained either. She ceased all work in late 2008. She was on workers’ compensation payments until 12 February 2010 when she reached the statutory figure of 130 weeks.
[30]DCB 38
41 On physical examination, there was asymmetrical decreased range of motion available in the cervical spine and the plaintiff was tender throughout the musculature. Specifically, there was no clinical evidence of lateral or medial epicondylitis. There was a restricted range of motion in the right shoulder but Dr Elder considered it was due to the neck musculature being painful rather than any intrinsic abnormality of the right shoulder, and he believed that the symptoms were such that he thought “It much more likely that the original injury was actually referred pain from her cervical spine rather than any injury itself of the right forearm or arm”.[31]
[31]DCB 39
42 Dr Elder viewed an ultrasound of the right elbow dated 12 November 2007 which was normal. An MRI scan of the cervical spine showed mild degeneration at C5-6. He considered an ultrasound of the right shoulder was really within normal limits for her age.
43 His assessment was as follows:
“In summary, I do not actually believe that there was any intrinsic injury to the right arm at the time. I think it much more likely that this was referred pain from her cervical spine and I do believe that you should accept the claimed neck injury, but do not believe that there is any intrinsic medical condition of the right shoulder.
Even if there were a soft tissue injury of the right forearm, I think that this has long since resolved and her residual symptoms are entirely due to her mechanical neck pain with referred pain to the right shoulder and down the right forearm but no clinical evidence of radiculopathy.”[32]
[32]DCB 40
44 The consequences said to ensue from the above injury include:
“She has given up playing golf and playing pool. Pool was a significant aggravator because of the cervical extension.
… She has difficulty reversing [her car] due to neck pain. She can do the shopping and does all the household chores bit by bit but she can no longer tend her vegetable garden. Specific activities that she can no longer do is splitting wood, cleaning the windows, cleaning her oven and she finds that if she uses tongs on a BBQ or writes for a long period of time her right hand cramps.
She can no longer plait her hair and she has sometimes difficulty putting on her bra and she prefers not to wear a bra because of the right strap is uncomfortable on the trapezius muscle.
She is however independent in self care.”[33]
[33]DCB 39
45 Dr S Mancey-Jones, the treating general practitioner, reported on 8 October 2010.[34] She noted that the plaintiff presented with neck pain in January 2008 and with irritation of a nerve root leading to neuralgic pain down her whole right arm. She was assessed by “Rehabilitation Outcomes” throughout 2008, when attempts were made for her to be fit to return to work. The nerve root pain was an obstacle to her return to work and she has since been treated at a pain clinic with nerve root ablation with limited success. She further stated that although the neck pain and nerve root irritation presented later and was thought to be related to the elbow injury, it may also have been the origin of her presenting symptoms (as opined by Dr Elder).[35]
[34]Exhibit C
[35]Exhibit C, PCB 34
46 The plaintiff was referred to rheumatologist, Dr Sam Engel, on 19 February 2008. He took a history that approximately five months ago, the plaintiff developed right elbow and forearm pain which was worsened by her work activities. Then “over the last three months she has developed some low neck and right shoulder pain”.[36] On examination, he found a mild restriction of cervical spine rotation, with a major finding being a restriction of abduction and rotation of the right shoulder. An ultrasound of the shoulder showed features consistent with a mild supraspinatus tendonitis and impingement. His diagnosis was right rotator cuff tendonitis which was treated by injecting the right subacromial bursa with some depot corticosteroid and lignocaine.[37] He also felt she had –
“… some mechanical cervical spine pain which should respond to a program of mobilisation and muscle strengthening modalities directed to both the cervical spine and the right shoulder. If she were to develop a recurrence of her neurological symptoms in the upper limb I have asked her to make a further appointment and under those circumstances it would be appropriate to proceed with an MRI scan of the cervical spine”.[38]
[36]See report dated 19 February 2008, PCB 35
[37]See report dated 19 February 2008, PCB 35
[38]See report dated 19 February 2008, PCB 35
47 On 15 April 2008, the plaintiff re-attended Dr Engel with a history that the right shoulder pain and restriction of movement had responded well to the corticosteroid injection. However, she had recently worsening neck pain with symptoms of numbness affecting the medial aspect of the hand and forearm bilaterally.[39] He arranged for the plaintiff to have an MRI scan of the cervical spine, but apparently there was no further follow up.
[39]See report dated 15 April 2008, PCB 36
48 Physiotherapist, Mr Mark Quittner, reported on 23 May 2008.[40] He stated he had applied cervical traction on a single occasion as his assessment was that some of her symptoms related to the cervical spine. He denied that the symptoms were worsened by the traction.[41] He further reported that the plaintiff was having right ulnar nerve compression signs which resolved but she was now reporting mild left ulnar nerve symptoms to the fifth and ulnar border of the 4th fingers.[42] He recommended an assessment by a specialist anaesthetist, for example, Dr Tim McCarthy.[43]
[40]Exhibit F, PCB 40-41
[41]Exhibit F, PCB 40
[42]Exhibit F, PCB 40
[43]Exhibit F, PCB 41
49 Dr Timothy McCarthy, specialist anaesthetist, reported on 15 July 2008.[44] He stated:
“Ms Murray suffers from ongoing neck pain associated with a work related injury.
She has tenderness over the right cervical spine.
Cervical MRI shows some C6 foraminal impingement.”[45]
[44]Exhibit G, PCB 47-54
[45]Exhibit G, PCB 47
50 He sought authorisation to perform two sets of right cervical dorsal ramus blocks at C4-5-6 to exclude a facet component for her ongoing cervical pain, which is preventing her finding re-employment.[46] As stated earlier, authorisation was forthcoming.
[46]Exhibit G, PCB 47
51 Due to Dr McCarthy’s illness, treatment was taken over by Dr Daniel Lee in 2009. He reported that the plaintiff had medial branch blocks conducted on 5 September 2008 and 19 September 2008. Apparently good results were obtained. Thereafter, authority was sought for a radio-frequency neurotomy to be done on the right C4-5-6 dorsal rami of cervical facet joints as a day case admission.[47]
[47]Exhibit G, PCB 48
52 Thereafter, Dr McCarthy reported again on 11 November 2010.[48] He recorded the history that the plaintiff was complaining of right cervical, shoulder and arm pain, which came on during the course of her work duties. Initially the pain began in the elbow and then gradually moved up to the shoulder and neck. When she tried to return to work after a break, she found she had a burning pain in the interscapular area and looking down was very difficult. He recorded that the treatment had included right shoulder hydro-dilation which had not given any significant relief, together with anti-inflammatory medication which had not had any beneficial affect on her pain. On examination, cervical flexion caused right neck pain, and cervical extension caused interscapular pain and neck pain. Right rotation caused pain in the shoulder and scapular region. He further stated that a cervical MRI scan performed on 15 May 2008 showed a small lateral disc protrusion at C5‑6 causing mild right C6 neuroforaminal stenosis. Further, an ultrasound of the right shoulder performed on 4 February 2008 reported mild enthesopathy of supraspinatus. The ramis block injections carried out in 2008 indicated that there was a facet joint contribution to her neck pain. In summary, he considered:
“The client appeared to initially develop epicondyle pain which is known to be precipitated by cervical nerve root irritation and possibly by facet irritation. When I saw her, she had a moderate elbow component and a major right neck component to her pain.”[49]
[48]Exhibit G, PCB 49
[49]Exhibit G, PCB 51
53 In my view, the clinical evidence from the treating doctors outlined above corroborates the opinion of Dr Elder, on behalf of the defendants, referred to above.
54 On balance, the history obtained by Dr Elder, and that taken by the various treating practitioners referred to above, is consistent with the pain in the neck coming on in the course of the plaintiff’s employment during 2007, such that she required treatment from Maureen Gale on various occasions between March and October 2007 for neck pain.[50] The injury to the cervical spine thus identified would be the aggravation of underlying degenerative changes and protrusion of the disc at C5-6, such as that the symptoms produced by the work rendered the plaintiff unemployable in 2008, at least, compared to her employability in 2006 and 2007. The employment consequences throughout 2008 were such that attempts at rehabilitation, as certified by the general practitioner, Dr Mancey-Jones, above, were not successful.
[50]Exhibit 17
55 The defendants paid for medical procedures and for weekly payments of compensation until February 2010. Thereafter, there has been little in the way of ongoing treatment other than occasional symptomatic relief by analgesia.
56 On 8 December 2011, the plaintiff’s treating general practitioner, Dr Kenneth Tate, reported at that stage, that –
“She gets benefits from her myotherapist, takes Endep and half Murelax at night. She has got used to the pain and is not keen to take any further scripts.”[51]
[51]Exhibit E, PCB 37
57 Dr Tate considered that the neck pain prevents the plaintiff from doing anything physical, that is, gardening, housework, golf, et cetera. He considered that she was not able to work in her pre-injury capacity and he considered that as the injury occurred some four years ago, and that she was still suffering, it was unlikely that there will be any stage in the future where she would be able to return to work. He considered the physical injuries prevented her from domestic and recreational activities. He noted she used to work in the garden as a hobby, but this had finished, and that she was not able to do her household chores. He felt it unlikely that she would improve.
58 In a further report dated 24 July 2012, Dr Tate considered that:
“Bronwyn is capable of employment now, but not employment that involves lifting, et cetera. She is almost able to sit for any length of time. In order to work, she would need to start any employment at say 2 hours per day and be reviewed and her hours evaluated accordingly. Her incapacity would appear permanent and I feel that it would be difficult to find employment due to the injury, a fact that little change has been seen over the past 5 years and her isolation living at Narbethong”.[52]
[52]Exhibit E, PCB 38
59 He further confirmed the physical consequences of the injuries, as stated earlier, and then asserted:
“Bronwyn cannot cope without the Myotherapist. She has got used to the pain, and is not keen to take any further scripts. She is on caltrate, fish oil and analgesic only if needed.
It is unlikely she will improve.”[53]
[53]Exhibit E, PCB 38
60 I have had the opportunity of observing the plaintiff in the witness box during a careful and searching cross-examination. I agree with the defendants’ counsel that there are variances in the histories, as apparently related to various doctors, but on balance I consider that the plaintiff is overall a stoic and truthful witness and that the history provided to Dr Elder is basically consistent with the histories provided to her own treating practitioners and in evidence before the Court.
61 I consider the plaintiff made every effort to return to work in 2008 on performing light duties and was unable to continue therein on a consistent basis. I consider the evidence discloses there has been no improvement since that time, and although she may be capable of, say, two hours of work per day, it does not appear that she would be able to sustain that on any permanent basis.
62 In all the circumstances, leave will be granted to the plaintiff to commence proceedings for economic loss damages and it follows, on the principles of Advanced Wire & Cable Pty Ltd v Abdulle,[54] that she is also entitled to commence proceedings for pain and suffering damages.
[54][2009] VSCA 170
63 I will hear the parties as to consequential orders.
- - -
0
5
0