Nevanka Bradaric v Western Health Pty Ltd trading as
[2010] VCC 1803
•14 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-09-02388
| NAVENKA BRADARIC | Plaintiff |
| v | |
| WESTERN HEALTH PTY LTD TRADING | Defendant |
| AS SUNSHINE HOSPITAL |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 and 29 October and 3 November 2010 |
| DATE OF JUDGMENT: | 14 December 2010 |
| CASE MAY BE CITED AS: | Nevanka Bradaric v Western Health Pty Ltd trading as Sunshine Hospital |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1803 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity for injury to 3 body functions– aggravation of pre-existing condition in the plaintiff’s left knee – injury to right shoulder and arm – injury to left wrist and hand - whether work-related injury to each body function makes material contribution to consequences – whether consequences of loss of separate body functions “at least very considerable”
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Michael J Ruddle | Victorian Compensation Lawyers |
| For the Defendant | W Ross Middleton S.C. | Hall & Wilcox |
| Jacinta M Forbes | ||
| HER HONOUR: |
Introduction
1 The 61-year-old plaintiff was employed by the defendant at Footscray Western General Hospital between 1993 and March 2008 working approximately 40 hours per week as a Patient Services Assistant when she said the defendant ceased offering her modified duties. According to the plaintiff her duties included but were not limited to carrying linen for the bed, changing bed sheets, heavy lifting of beds, repetitive bending and twisting to clean under beds, dusting and carrying foods.[1]
[1] For more details see paragraphs 6 and 13 of the plaintiff's first affidavit-Plaintiff's Court Book ("PCB") 11 and paragraphs 14 and 15 of her second affidavit-PCB 24.
2 By originating motion filed on 29 May 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages. Initially in her Particulars of Injury filed in October 2009 the plaintiff relied on permanent serious impairment of the lumbar spine, of the right shoulder and elbow, of the right and left knees, of the left wrist and scarring and on permanent severe mental or permanent severe behavioural disturbance or disorder.[2] Each of these injuries, compendiously described by the plaintiff in her first affidavit as her "work injuries" were, she said, contributing to the many consequences alleged.
[2] See also the Form A Application, PCB 1-9 and paragraph 11 of the plaintiff's first affidavit-PCB 11.
3 However, when her Counsel opened at hearing the application made under paragraph (a) of the definition of serious injury was confined to serious permanent impairment or loss of only three body functions. The first involved injury to the plaintiff's left knee on 25 February 2003 when, whilst distributing food, she said that she struck a food trolley with her left knee ("the first injury").
4 During cross-examination the plaintiff said that she had pushed and left the trolley in the corridor to collect trays. As she tried to go past the stationary trolley she hit it with her left knee, indicating to the Court the middle outside of the knee around the kneecap.[3]
[3] Transcript ("TN") 50.
5 The plaintiff completed her shift and after treatment and a couple of weeks off work she returned to modified duties which she agreed she performed 40 hours per week until she suffered a fall at work on 20 February 2007. On the second day of the hearing the plaintiff's Counsel amended his opening address to further allege that this fall, described in more detail below, had also aggravated underlying degenerative changes in the plaintiff’s left knee.
6 By her account, following the first injury, the plaintiff always had pain in her left knee although it varied. The fall in February 2007 affected her left knee, so the plaintiff said, because she had to walk around a lot at work.[4] The plaintiff nominated the impairment of her left knee as the injury which most affected her.
[4] TN 74.
7 The second injury was to the plaintiff's right upper limb suffered on 20 February 2007 when, whilst changing and moving mattresses, a dangling cord used to secure the mattress caught between the plaintiff's legs causing her to fall on her knees and to strike a wall with her right arm and elbow ("the second injury"). After treatment and several weeks off work the plaintiff returned to modified duties. In re-examination the plaintiff said that the work she performed following the second injury affected her right shoulder because she had to use her dominant arm constantly.[5]
[5] TN 75.
8 Whilst during cross-examination she expressed some uncertainty about this, the plaintiff appeared to accept that prior to the third injury in November 2007 she was performing her normal duties 40 hours per week. Indeed, the plaintiff agreed that, depending on her pain levels, had she not injured her left wrist she probably would have continued working these duties and hours.
9 However, based on the medical records and other evidence to which I refer shortly I think it unlikely that the plaintiff had resumed performing all of her pre-injury duties prior to the third injury.
10 The third injury on 8 November 2007 involved the plaintiff's left wrist when, whilst mopping and pulling a heavy waste bin, the plaintiff said that she felt an immediate sharp burning pain in her left wrist and hand which radiated to lower arm ("the third injury").
11 During cross-examination the plaintiff said that this incident involved a big green wheelie bin which must have been full because it was heavy. She apparently held the mop in one hand whilst trying to move the bin with her left hand by pulling it toward herself, whereupon, so the plaintiff said, she felt pain in her wrist. In Court the plaintiff indicated that the pain she felt was from the base of her little finger along the side of her hand, down her wrist and into her forearm.[6] She also indicated that, so far as her left upper limb was concerned, the main problem was her wrist with pain travelling from the hand up into her elbow.[7]
[6] TN 47.
[7] TN 49.
12 After a period off work between January and March 2008 the plaintiff returned to modified duties working four hours per day three days per week until the defendant stipulated that she perform her normal duties or lose her job. The modified duties she agreed had included dusting, distributing drinks, making tea, carrying food trays and couriering drug packages from the pharmacy. However, according to the plaintiff by March 2008 her wrist injury and a worsening of the condition in her legs and arms all prevented a return to normal hours and duties. This response provides a good illustration of the plaintiff's failure throughout this application to clearly differentiate between multiple impairments affecting several body functions (including those that are the subject of this application) and their consequences.
13 It appears that compensation claims made by the plaintiff were only accepted in respect to the first and the second injury. In her second affidavit the plaintiff deposed that as a result of each of her work injuries she resigned her employment on "grounds of invalidity in late 2009."[8] This appears to have been despite a recommendation from her treating Occupational Therapist and Acupuncturist, Mr Sharma following a Worksite Assessment on 9 July 2008 that she resume her pre-injury duties on a full-time basis using modified work methods.[9]
[8] PCB 31.
[9] Defendant’s Court Book (“DCB”) 50 and TN 55.
14 The plaintiff submitted that she has no capacity to return to any "suitable" employment due to the physical impact of each of the injuries. Indeed, in response to direct questioning by her Counsel the plaintiff explained that she could not work because she had a lot of pain in her left knee and her shoulder. The pain in her left wrist she said was less severe due to medication. She also explained that she took tablets and got very tired.
15 Because I am dealing with multiple injuries suffered within a 4 1/2 year period, in due course I will say more about how for the purposes of the Act the plaintiff's without injury earnings are to be calculated.
16 In paragraphs 25 and 26 of her first affidavit the plaintiff spoke of constant though varied pain involving in particular both knees, her right shoulder and elbow, her left wrist and her lower back, for which she was prescribed medication including but not limited to Celebrex, Panamax and Mobic.[10] However, in paragraphs 40 and 41 of her second affidavit and paragraphs 1 and 2 of her third affidavit, both sworn in 2010, the plaintiff qualified this evidence by the deposing that she continued to experience constant though varied pain in her left knee, right upper extremity/shoulder and left wrist.[11]
[10] PCB 14.
[11] PCB 27 and 41.07.
17 In her second affidavit the plaintiff deposed to receiving further treatment which included but was not limited to the prescription of Panadeine Forte, Celebrex and Panamax and that these medications, provided "minimal, transient benefit" in relieving her constant though varied pain. The plaintiff also said that she self-funded weekly hydrotherapy and acupuncture treatments. In her third affidavit the plaintiff noted that she sees Dr Sulava regularly, that he prescribes medication including but not limited to Panadeine Forte and Celebrex and that her symptoms persist.[12]
[12] PCB 41.07-08.
The Statutory Requirements (In Summary)
18 The plaintiff is not permitted to aggregate or combine the effect of various injuries and impairments caused by discrete incidents. In effect she must identify and prove that the impairment resulting from each of the injuries alleged is serious by reference to the consequences of that impairment.[13]
[13] Humphries v Poljak [1992] 2 VR 129 and Lu v Mediterranean Shoes [2000] 1 VR 511.
19 To succeed, the plaintiff must prove compensable injuries and that the pain and suffering and any loss of earning capacity consequences of each injury- related impairment, when judged by comparison with other cases in the range of possible impairments of the left lower limb, are more than "significant" or "marked" and at least "very considerable".
20 In summary, the plaintiff is required to establish separate compensable injuries after 20 October 1999. She must establish the nature of each injury alleged; the consequences of each impairment as at the date of hearing, in this case both the pain and suffering and loss of earning capacity consequences, to which each compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very considerable".
21 Any psychological or psychiatric consequences of the plaintiff's physical injuries cannot be taken into account in determining her application for leave under paragraph (a) of the definition of serious injury.
22 In this case, where there is evidence of pre-existing degenerative disease of the left knee I must consider what the evidence disclosed as to the prior condition of her knee and determine whether any additional impairment resulting from her employment is serious and permanent.
23 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and retraining, she has a capacity for any employment which if exercised would result in her earning more than 60% of her pre-injury earnings determined in accordance with s134AB(38)(f) of the Act.
24 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[14]
[14] s134AB(19)(b).
25 As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.
26 If for each of the impairments the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, she will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.
The Areas of Dispute
27 Generally speaking, in respect to each injury the defendant disputed whether the consequences were "at least very considerable", whether on the available evidence it was possible to disaggregate the consequences of any impairment arising from each injury and the plaintiff's credit was challenged.
28 As to the first injury the defendant also said that:
• at the time of the first injury and the alleged aggravation injury on 20 February 2007 the plaintiff had pre-existing constitutional degeneration of both knees; • the incident on 25 February 2003 probably caused bruising and the meniscal tear which resection by orthopaedic surgeon, Mr Burns had fixed on 9 February 2004; • any future need for uni-compartmental replacement in the left knee foreshadowed by Mr Burns was related to underlying constitutional factors, that is the natural progression of the pre-existing degenerative changes, not the soft tissue injury and meniscus repair or any temporary aggravation injury suffered in the course of the plaintiff's employment; • the third injury to the plaintiff's wrist was responsible for her ceasing employment from March 2008; and • the plaintiff must show that absent any aggravation injury caused by the fall at work in February in 2007 the consequences of her left knee injury in 2003 are at least very considerable.[15] [15] TN 25-27 and the defendant's Statement of Issues.
29 As to the second injury the defendant also disputed:
[16] PCB 71.
[17] [1994] 1 VR 436 at 444.
• the nature of the injury suffered for which an ultrasound obtained by the general practitioner, Dr Horvat on 7 March 2007 reported right biceps tendinosis and right subacromial bursitis with associated bursal impingement. This report was accompanied by a recommendation that the shoulder condition be treated by ultrasound guided steroid injection, a procedure the plaintiff did not undergo;[16] • the permanency of any injury-related impairment of the plaintiff's right shoulder and, it follows, of any consequential physical incapacity for work; and • whether after applying Petkovski v Galetti[17] any further aggravation injury to the left knee also amounted to a serious injury. 30 As to the third injury the defendant disputed that the plaintiff suffered compensable injury to the left wrist in the circumstances alleged or at all. In this regard, the defendant particularly relied on the failure to inform the treating rheumatologist, Dr Stockman of a prior history of left carpal tunnel surgery in 2000 and of a prior history of left wrist pain on presentation to a general practitioner in October 2007. This history found its way into the plaintiff's evidence for the first time when she swore her second affidavit in March 2010. The defendant also relied on the opinion of its medico-legal specialist, rheumatologist, Dr Fraser, who has diagnosed non-work-related inflammatory joint disease, psoriatic arthritis.
The Evidence Called and Tendered
31 The plaintiff, who speaks some English, gave evidence with the assistance of an interpreter. She deposed to the accuracy of her multiple affidavits sworn on 3 February 2009, 10 March 2010 and 28 October 2010 respectively. She was cross-examined at length.
32 The material tendered by the plaintiff consisted of her Court Book from which a number of documents had been removed. However, the Form A Application document dated 2 February 2009 remained in the Court Book as the defendant relied on the articulation of multiple injuries outlined in this.
33 The plaintiff's materials included an affidavit sworn by her daughter, Yadminka De Petro on 10 March 2010. She was not required for cross-examination. I did not find the daughter's affidavit as helpful to her mother's application as it might otherwise have been because typically she either did or did not adequately distinguish between the several body functions affected and their consequences. Moreover, in so far as her daughter deposed in March this year to performing most of the household duties, it seems from her mother's responses during cross-examination that recently she resumed responsibility for most of these activities after her daughter left home.
34 The defendant tendered its Court Book from which a number of documents had been removed and to which, with the leave of the Court, various clinical notes made by Drs Horvat and Sulava were added. The defendant also tendered a diagrammatic illustration of a right carpal tunnel and two short segments of video surveillance film obtained on 18 and 29 May 2010 respectively.
35 In the film the plaintiff is seen, amongst other things, walking slowly outside her home, purchasing and carrying small bags of items at a shopping centre, entering and leaving the driver's seat of a motor vehicle and removing shopping from the motor vehicle which she carried in both hands. Whilst during cross-examination the plaintiff claimed that due to her sore leg she limped "a bit",[18] this was not obvious in the film. However, she did agree that she used her left arm, her right arm and shoulder and both hands at will to carry shopping, but rejected any suggestion that the shopping was heavy.
[18] TN 72.
36 In cross-examination it was also suggested to the plaintiff that there was a discrepancy between the film and, for example, her report to her medico-legal specialist, occupational physician Dr Castle, whom she told she could only sit for about half an hour and sometimes for only 15 to 20 minutes. By her response the plaintiff appeared to indicate that her sitting tolerance generally depended on the circumstances in which she found herself, as for instance the fact that in Court she had by then been sitting for two hours.
37 In all, other than the last mentioned response and the plaintiff's assertion that she limped I was not satisfied that the film pointed to any incompatibility between the alleged disabilities affecting several body functions and the activity depicted in the film.
38 Finally, general practitioner, Dr Sulava was called for cross-examination.
[19] PCB 11.
[20] TN 45.
[21] TN 69-70.
[22] TN 46.
[23] DCB 52.1-52.32.
Credit 39
The plaintiff is not a sophisticated or highly educated woman. Despite limitations in her English-language skills throughout the hearing she showed a good understanding of the questions directed to her.
40
Perusal of the medical evidence indicated to me that the plaintiff was a selective historian. As I have already noted the defendant attacked the plaintiff's credit and ultimately her reliability as a witness on her own behalf. The attack was initially focused on her evidence concerning earlier injuries.
41
The first concerned the plaintiff’s affidavit evidence and responses in which she described her injuries and incapacity arising from multiple injuries including neck and back injuries suffered in a car accident in about 1986, for which the plaintiff sued for damages.[19]
42
Responding to specific cross-examination about these matters the plaintiff struggled to recall how long she was off work following the car accident, although when pressed she eventually suggested a month "maybe." She also thought that it could have been a year or even longer before her neck and back injuries completely settled.[20]
43
Nevertheless, apart from pointing out that with the passage of time she had not recalled this,[21] the plaintiff did not subsequently dispute the proposition that following the car accident she had previously claimed to have been out of work for a total of nearly 2 years, that is some 70 weeks between September 1986 and January 1988, and a further 40 weeks between September and 1988 and June 1989. The plaintiff's response to this line of questioning suggested a lack of candour, rather than any credible failure to recall in detail the length of her incapacity for work following the car accident.
44
The other matters going to credit on which the defendant relied included the plaintiff's denial at hearing (when delivered during cross-examination it was an emphatic denial) of any prior problem with her right shoulder or elbow and her repeated claims during cross-examination that before 8 November 2007, the date of the third injury, she had never had any problems with her left wrist.[22]
45
The earliest clinical notes tendered by the defendant,[23] about the content of which both the plaintiff and Dr Sulava were cross-examined, indicated multiple attendances for treatment, the prescription of a range of pain killing and anti- inflammatory medications and from time to time radiological investigations before and since each of the injuries on which she eventually relied in this application. These conditions included for instance problems with the plaintiff's knees, shoulders, wrists, neck and ankles. Amongst other things, the records made by both Dr Sulava and another general practitioner, Dr Horvat from whom he took over the plaintiff’s care in early 2008 and their various reports revealed that:
•
on 11 June 1993 the plaintiff was treated for left carpal tunnel syndrome by local injection and on 5 February 2000 she underwent a left carpal tunnel decompression. During cross- examination the plaintiff agreed that, a month prior to the third injury in October 2007, whilst performing 80 to 90% of her pre- injury duties, she consulted her doctor for treatment, including x- rays of what she insisted was a sore left hand. In this regard the plaintiff specifically contested the clinical notes where the doctor recorded that the complaint to him concerned her wrist. The notes also showed two further visits for treatment prior to referral for blood tests and to rheumatologist Dr Stockman on 1 November 2007. However, the record made on 12 November suggests that this was the first time the plaintiff described the work-related incident on 8 November during which she reported feeling “a sharp tearing pain in forearm” which was responsible for her inability to move her sore and evidently swollen left hand/arm;
•
the plaintiff also had a history of treatment for right wrist pain in February 1994 involving the prescription of medication and in March 1997 she complained of pain and swelling after pushing full linen bags into a linen shute. Allowing for the notes and Dr Sulava’s evidence this was investigated with an ultrasound, treated with non-steriodal anti-inflammatory medication and physiotherapy and the plaintiff took various periods of work until July 1997. In cross-examination Dr Sulava confirmed a provisional diagnosis of a capsular tear which even after healing he thought was likely to be a permanent problem for the plaintiff;[24]
•
on 9 August 1994 the plaintiff presented with an aching right shoulder, diagnosed as right supraspinatus tendinitis, for which she was prescribed Brufen. An entry for 8 December 1994 indicates a further attendance for treatment of various complaints including "aching shoulders" as well as prescription of Panadeine Forte. The entry on 22 February 2007 records that the plaintiff reported the fall at work involving her knees and right arm, elbow and shoulder. The next relevant entry on 21 June 2007 recorded that the plaintiff was still troubled by her knees and by her right shoulder and that she was certified as fit to perform modified duties four days per week; and
•
the plaintiff also had a history of treatment for right knee pain with attendances on 18 September 1996 and again on 19 February 1998 the latter report recording the results of x-rays, the prescription of pain killing medication and a diagnosis of osteoarthritis. A further attendance on 15 August 2000 recorded acute arthritis in the right knee medially.
[24] TN 78-79.
46 When challenged in cross-examination as to why, if she could not remember this, the plaintiff chose to deny any earlier problem with her right shoulder, she rather curiously replied: "It was not such a serious problem and I didn't think that you will go that far back."[25] In any event, the plaintiff subsequently added that she had not remembered this because "it came and went at that time".
[25] TN 57.
47 Moreover, when the plaintiff was reminded that on 5 February 2000 she underwent surgery to her left wrist at the Western Hospital, the plaintiff nevertheless sought to explain the discrepancy between this and her responses by repeatedly claiming that the surgery had been to the palm of her hand.[26] As with the plaintiff's insistence that she had complained about a sore hand in October 2007 rather than a sore wrist, this distinction was blatantly revisionist.
[26] TN 46 and 59.
48 Needless to say the plaintiff was also reminded that, notwithstanding the treatment obtained between 1994 and 1997 for right wrist problems and between 1996 and 2000 for right knee problems, she had also denied any earlier problems with both the right wrist and knee.
49 In all, I did not find the distinction the plaintiff sought to make between surgery to her left palm and the problem with her left wrist plausible. Moreover, in my view, even after allowing for any difficulty in recalling various matters, the plaintiff's responses at times indicated a conscious attempt to advance her application at the expense of the truth.
50 Accordingly, where there is any inconsistency between the plaintiff's account and other evidence I have generally preferred the latter. Furthermore, the plaintiff's unreliability as a witness also makes it likely that, as reported by two of the defendant's specialists, her behaviour during their medical examinations was exaggerated.
The Plaintiff’s Background
51 The plaintiff was born in Bosnia. In or around 1969 she migrated to Australia. She is married, her adult daughter and son are married and she has grandchildren.
52 The plaintiff was educated to year six level in Bosnia. She deposed to having poor English language skills, although, notwithstanding the presence of an interpreter, the plaintiff clearly understood and responded directly to questions during her evidence and cross-examination.
53 Her early employment history involved factory and cleaning work with time off whilst pregnant. However, she holds a Patient Services Assistant Certificate and from about 1993 she commenced employment with the defendant working at Footscray Hospital and in particular in Ward 3A.
54 As I have already mentioned the plaintiff has tended to aggregate the consequences of each impairment alleged. For instance in her affidavits she deposed to consequences impacting on different areas of her domestic, social and recreational activities which included:
• constant though varied pain in respect to her work injuries; • trouble sleeping due to pain; •
problems with health care and hygiene "particularly with the use of either " of her arms.[27] In her second affidavit the plaintiff added that her right arm injury affects the use of her dominant arm whereas her left wrist injury affects her ability to perform hand functions with her non-dominant hand;
•
problems with both legs if she stands or walks for "prolonged distances or in a repeated fashion", squats, gets up after kneeling, bends, twists or leans. In her second affidavit the plaintiff added that since the first injury to her left knee her mobility has also been affected;
• pain in her arms if she reaches; • difficulty sitting for prolonged periods; •
increased pain with repetition or prolonged activities such as carrying, lifting, pushing, pulling, climbing and exercising;
•
a lack of mobility by virtue of increased pain when riding or driving over bumpy surfaces and increased pain in her right shoulder when driving and in her right leg when pressing the pedal. In cross-examination the plaintiff indicated that it was her sore arm that prevented her from driving very far;
• interference with her normal sexual function; •
an adverse impact on her ability to participate in individual or group activities, sports and hobbies. For example, she is unable to enjoy walking around the park, she can no longer garden without suffering exacerbated pain in her arms and knees in particular, she used to enjoy dancing ‘Kolo” and she now tends to avoid participation in social activities. In cross- examination the plaintiff was unable to recall when she last went ‘Kolo’ dancing;
• an inability to carry, lift or play with her young grandchildren; •
an inability to go fishing with her husband and friends twice a year or go to Swan Hill for a holiday and restrictions on travelling overseas to visit family. In cross-examination the plaintiff again was unable to recall when she last went fishing, although she did recall travelling to Bosnia and Austria to visit family in 1999 and in 2006. However, the plaintiff also indicated that she avoided travel because she cannot sit for very long and sitting causes problems with her knees and shoulder. As to her shoulder the plaintiff said that sitting made it very painful and aggravated the injury;
•
an inability to perform either alone or without assistance the wide range of domestic tasks previously undertaken by her. Allowing for both the plaintiff's evidence and her daughter’s affidavit it appears that at some stage her daughter took over the majority of the home duties previously undertaken by her mother, although from time to time the plaintiff tried to cook and wash dishes. In cross-examination the plaintiff, amongst other things. indicated that her daughter no longer lives at home. As a result, the plaintiff now does most of the cooking, washes the dishes most of the time and cleans, with help for the more difficult tasks. In addition, the plaintiff and her husband put the washing on the line when it is not placed in a drier and they shop together, although the plaintiff goes out on her own if she has to buy small items like milk and bread.
[27] PCB 16.
The diagnosis and treatment received for left knee injury prior to 20 February
200755 The entry in the clinical notes and the medical reports confirm that the plaintiff presented for treatment of her left knee on 25 February 2003 after she "knocked" it on a food trolley. Dr Horvat’s notes and report described this as a twisting injury with persisting pain in her left knee for which he arranged radiological investigations, prescribed Celebrex and certified the plaintiff as unfit for work until 28 February 2003.
56 The earliest x-ray and ultrasound of the left knee on 1 March 2003 demonstrated early degenerative change/osteoarthritis, a small knee joint effusion and Baker's cyst.[28] As she continued to present with ongoing left knee pain, Dr Horvat referred the plaintiff to orthopaedic surgeon Mr Burns. In April 2003 this specialist obviously thought that the circumstances in which the injury had occurred were more likely to have caused a soft tissue contusion, rather than any significant intra-articular pathology.[29] Subsequent events proved this to have been an overly optimistic assessment of the extent of the injury suffered.
[28] PCB 69.
[29] PCB 104.
57 Pending further investigations the plaintiff return to her duties as a Patient Services Assistant, subject to restrictions which required that she avoid kneeling, squatting, climbing ladders or any work in confined spaces.[30]
[30] PCB 32.
58 The swelling and instability in the plaintiff's left knee did not resolve and on 26 August 2003 a MRI study revealed:
1. "Degenerative changes of the medial compartment of the femoro-tibial joint. 2. Complex meniscal tear particularly of the posterior horn of the left medial meniscus with both horizontal and vertical components and well as a radial component seen more anteriorly. 3. Degeneration of the posterior of horn of the left lateral meniscus. 4. Strain/partial tear of the ACL.
5. Small joint effusion with a Baker's cyst noted in the popliteal region. 6. ...."[31]
[31] PCB 70.
59 On 12 November 2003 orthopaedic surgeon, Mr Miller examined the plaintiff at the request of the claims agent at which time he also reviewed the MRI scan. In his report, Mr Miller confirmed the likely relationship between the injury suffered at work and the meniscal tear without turning his attention to any aggravation injury involving the underlying degenerative condition. He too recommended arthroscopic treatment.
60 On 9 February 2004 Mr Burns performed an arthroscopic partial medial menisectomy and chondroplasty. Relevantly, in his operation notes the orthopaedic surgeon said that:
"Inspection of the medial compartment revealed a significant oblique degenerative tear of the posterior 2/3 of the medial meniscus in association with extensive areas of Grade 2 chondral changes involving the weight- bearing over the medial femoral condyle. The meniscal tear and the unstable areas of articular cartilage were resected using a combination of punches and shavers ..."[32]
[32] PCB 105.
61 It appears that by 19 April 2004 the plaintiff was sufficiently recovered from surgery to return to full-time work on restricted duties, with which her doctor said she had coped well. Nevertheless, she still required anti-inflammatory medication and some pain killing medication, a knee brace and she was undergoing physiotherapy to strengthen her knee.
62 For reasons which were not explained by the plaintiff, Mr Burns has not reviewed the condition of the plaintiff's left knee or provided an up-to-date report. Therefore, we do not have the benefit of this treating surgeon's response to questions relevant to the determination of this application. What we do have is his last report to the plaintiff's general practitioner, Dr Horvat on 29 May 2006, where he noted, amongst other things, that:
• the plaintiff's left knee continued to bother her intermittently; • she had been assisted by taking Panadol and glucosamine and particularly pool exercises; • up-to-date x-rays confirmed some moderate medial compartment osteoarthritis; and • whilst her symptoms did not warrant any further investigation he nevertheless thought it likely that eventually the plaintiff would require a unicompartmental replacement.[33] However, consistent with the submission made by the defendant, his comments read in their proper context did not indicate this to be a consequence to which any work-related aggravation injury contributed. [33] PCB 106.
63 The general practitioner did, however, turn his mind to this issue. In his detailed report addressed to the claims agent on 5 October 2005,[34] Dr Horvat clearly stated his view that, in addition to the meniscal tear, the incident on 25 February 2003 had significantly aggravated asymptomatic degenerative changes in the plaintiff's left knee. This was so, he reasoned because, even after treatment and arthroscopy the plaintiff's pain and knee dysfunction had never completely resolved. Dr Horvat specifically rejected the suggestion by the defendant's specialist, orthopaedic surgeon, Mr Clive Jones, that any aggravation injury had been temporary and that the plaintiff's significant weight problems and constitutional factors were now responsible for her symptoms.
[34] PCB 93-95.
The diagnosis and treatment received for right shoulder injury and further aggravation of left knee condition prior to November 2007
64 In his letter dated 25 April 2007 addressed to the claims agent,[35] Dr Horvat confirmed that he first treated the plaintiff on 22 February 2007 after she fell at work, landing on her knees and with her right arm colliding with a wall.
[35] PCB 99-100.
65 Amongst other things, he noted bruising and swelling to the plaintiff's right elbow, tenderness anteriorly in her right shoulder and bruising medially to the left knee. Other than her report of pain he found no sign of bruising or swelling in her right knee. X-rays apparently reported degenerative changes in the left knee, that the plaintiff's right shoulder was essentially normal and that there was a bony island in the right humorous and elbow which was probably asymptomatic.
66 As I have already mentioned an ultrasound of the plaintiff's right shoulder obtained on 7 March 2007 revealed right biceps tendinosis and right subacromial bursitis with associated bursal impingement. The report also noted that no "further rotator cuff tendon abnormality was demonstrated."[36] This and the results of subsequent radiology are important because they tend to exclude any damaged rotator cuff as a likely cause of the symptoms of which the plaintiff continues to complain.
[36] PCB 71.
67 According to the doctor the plaintiff declined his offer of a cortisone injection to her right shoulder. The plaintiff again returned to modify duties.
68 Relying on her complaint of persistent right shoulder pain, when he reviewed the plaintiff on 30 March 2007 Dr Horvat issued a further certificate for modified duties which restricted the hours working and lifting and directed that the plaintiff have rest breaks as required.
69 In Dr Horvat's opinion the fall caused soft tissue injuries to the plaintiff right shoulder, elbow and both knees and it had caused the tendinosis and bursitis conditions in her right shoulder, subsequently identified on ultrasound. In addition to these injuries he thought the fall "may" have aggravated degenerative changes to the plaintiff's knees. Dr Horvat thought that any impairment of the plaintiff's right shoulder (with physiotherapy this should return to normal function[37]), right elbow and right knee were likely to be temporary whereas the partial incapacity due to her earlier left knee injury was, so he believed, likely to continue permanently.
[37] PCB 102.
70 When he wrote his last report in April 2007, Dr Horvat clearly expected that with time the plaintiff would resume working full-time hours, albeit on modified duties to accommodate the partial incapacity he attributed to the earlier left knee injury, the first injury. In other words, within a couple of months of the second injury the treating general practitioner did not envisage any long-term impairment of the several body functions affected as a result of the second injury.
The current general practitioner's prognosis in respect to the left knee and right shoulder injuries
71 In November 2009 Dr Sulava arranged further radiological investigations of the plaintiff's knees, right shoulder and right elbow. According to the report dated 11 November 2009 bilateral knee x-rays demonstrated bilateral osteoarthritic change "with moderate to marked narrowing of each medial joint
compartment in the weight-bearing film, spiking of tibial spines and marginal osteophytic lipping. Joint effusion is suggested at the left supra-patellar bursa and there is no definite intra articular loose body at either knee."[38]
[38] PCB 76.01.
72 In summary the x-rays and ultrasound results for the right upper limb obtained on 16 November 2009 reported: "Subacromial/subdeltoid bursitis with
impingement at the right shoulder. No rotator cuff tear. Partial tear at the deep
aspect of the right common extensor tendon origin at the right elbow."[39]
[39] PCB 76.02.
73 As he confirmed in his later reports and in his oral evidence Dr Sulava had nothing to do with the early diagnosis and treatment of the plaintiff's knee and shoulder injuries. At hearing he was taken by the defendant's counsel to the opinions expressed by Dr Horvat and summarised above.
74 However, notwithstanding the optimism previously expressed by his colleague, Dr Sulava anticipated ongoing shoulder problems due to bursitis, tendinosis and impingement, relying also it seems on what he thought was clinical evidence of rotator cuff injury. This explanation was at odds with the most recent radiological results which also excluded any rotator cuff pathology. Moreover, Dr Sulava was not dissuaded from this view by information reminding him that two specialists had found no evidence of a damaged rotator cuff.[40] Nevertheless, the most recent radiology indicates pathology other than rotator cuff problems in the right shoulder which probably explains why it remained symptomatic and why the specialists have all accepted ongoing impairment which impacts on the plaintiff's earning capacity.
[40] TN 91-92 and see the reports of Mr Clive Jones and Dr Fraser.
75 Through his responses to questioning both in cross-examination and re- examination Dr Sulava clearly indicated his view that impairment of both knees incapacitated the plaintiff for working. In response to questioning by the plaintiff's Counsel Dr Sulava added his further opinion that walking and working on her feet between October 1999 and February 2008 probably aggravated degenerative changes in the plaintiff left knee.[41] In the circumstances in which it was given this response did not appear to me to reflect a considered opinion.
[41] TN 98.
76 On 22 June 2010 the plaintiff was examined by orthopaedic surgeon, Mr Kondogiannis on referral from Dr Sulava. His short reports submitted to the general practitioner on 28 June 2010 and 30 July 2010 indicate that this specialist's examination was directed to both knees. He was apparently told that the plaintiff's symptoms had worsened after a fall at work in 2007.
77 Accordingly, as recorded by him the brief history summarised in this specialist's report omitted any reference to the first injury. In this complex and messy application this is an unfortunate omission.
78 The plaintiff apparently reported generalised pain in the knee, the left worse than the right, stiffness, an impact on her levels of activity and regular night pain. She also said that her medication included Tramadol, Panadol and Panadeine Forte with varying effects.
79 Mr Kondogiannis' examination apparently revealed an overweight woman who walked with a slow, stiff knee gait bilaterally, range of movement in the knee 0/5/110, tenderness at the medial joint line bilaterally, meniscal pain on provocation and an irritable patellofemoral joint.[42]
[42] PCB 116.32.
80 In his first report Mr Kondogiannis said that he arranged a MRI scan "to
assess the severity of the plaintiff's arthritic disease versus any meniscal
pathology." The reported result of this scan was never tendered, although I note that in his report on 22 September 2010 occupational physician, Dr Castle sets out the results of the scans for both knees.
81 In any event, following re-examination of the plaintiff on 20 July 2010 Mr Kondogiannis noted that the scans confirmed advanced medial compartment osteoarthritis in both knees with full thickness, chondral loss and subchondral reactive bone changes as well as degenerate tears of both medial menisci with extrusion. In his opinion the only viable treatment option for the plaintiff is a knee replacement of the plaintiff's currently most symptomatic left knee. This is a procedure the plaintiff remains reluctant to pursue. Apart from the surgical procedure, by way of ongoing treatment Mr Kondogiannis also recommended medication to control pain and regular exercise and hydrotherapy.
82 Notably, as the defendant submitted, the treating surgeon's reports to the general practitioner did not go so far as to link the future need for surgery in either knee to any work-related aggravation in 2007 or it seems in 2003. This is unremarkable, given the limited history received by him and the fact that his reports were only addressed to the general practitioner.
The diagnosis and treatment of any left wrist/hand condition in 2007 and 2008
83 Dr Sulava appears to have been responsible for the care of the plaintiff's left wrist/hand condition from late 2007 onwards. When he was taken to the clinical notes and his earliest report dated 26 January 2008 the doctor confirmed a telephone discussion in September 2007 with another doctor who had enquired about whether the plaintiff was fit to perform all of her normal duties, a matter Dr Sulava agreed to assess on her next visit.
84 According to Dr Sulava on 11 October 2007 the plaintiff reported that she was still unable to do some 20% of her pre-injury duties due to the use of medication and the time required to continue her therapies.[43]
[43] TN 81-82.
85 However, on this attendance the plaintiff also reported a sore left wrist for which, without identifying any particular cause, the doctor provisionally diagnosed osteoarthritis, that is inflammation of the joint and he referred the plaintiff for x-ray. Relevantly on 15 October 2007 the radiologist reported seeing "subtle peri-articular osteopaenia", a finding which raised the possibility of underlying inflammatory arthropathy, without evidence of any "frank destructive or erosive bony changes." [44]
[44] PCB 73.
86 Prompted by this report Dr Sulava arranged blood tests he said to exclude a diagnosis of rheumatoid arthritis. It appears that at first the doctor was probably not aware that the plaintiff had previously undergone left carpal tunnel decompression. When she presented to him on 1 November 2007 complaining of sore arms the doctor arranged for an EMG of her left arm, as he said, to look for carpal tunnel syndrome and, suspecting a rheumatoid arthritic condition, he also referred the plaintiff to Dr Stockman.
87 The clinical notes and Dr Sulava's report in January 2008 confirm that when the plaintiff presented for treatment on 9 November 2007, apart from reporting that the condition of her knees and shoulder had not changed, the plaintiff did not also report any work-related injury to her wrist or forearm on 8 November 2007.
88 As I have already mentioned, on 12 November 2007 the plaintiff again presented to the doctor reporting, amongst other things, pain, swelling, aching, soreness, tenderness and a useless left arm following the incident at work on 8 November 2007 (the third injury). Relevantly, on examination Dr Sulava noted that the circumference of the plaintiff's distal forearm, that is from just below the elbow to her wrist, was 21 cm compared with 20 cm on her right arm. Initially he diagnosed a strain injury and due to this injury the doctor certified the plaintiff as unfit for work between 9 and 23 November 2007.
89 Notably the x-ray and ultrasound investigations previously ordered by the doctor and obtained on 14 November 2007 for left distal arm and wrist injury provided no evidence of any underlying pathology. However, the report from the neurologist who performed the nerve conduction study on 16 November 2007 indicated a finding of left carpal tunnel syndrome with a normal ulnar nerve conduction result.[45]
[45] PCB 74 and 75.
90 By January 2008 the plaintiff's left arm condition was sufficiently improved for her to return to modified duties 4 hours a day, three days per week. When he submitted his report in January 2008 Dr Sulava clearly felt that the plaintiff may require a further carpal tunnel release, should the condition of her wrist deteriorate. As far as I can tell from the material before me, this is not a procedure currently recommended by any treating practitioner.
91 In his oral evidence Dr Sulava acknowledged that the condition of the plaintiff's left wrist was the main cause of her not working after March 2008.[46] Indeed, I note that he previously reported to the claims agent his view that, were it not for the wrist injury and their refusal to approve treatment by way of a steroids injection, the plaintiff would probably have returned to normal unrestricted duties.[47]
[46] TN 91.
[47] PCB 84.
92 Despite the passage of time and the investigations undertaken, at hearing Dr Sulava could not articulate with any confidence a diagnosis for the swelling and symptoms in the left wrist.
93 Without explaining the cause to which he attributed the symptoms reported in October 2007, Dr Sulava said that the work-related incident on 8 November 2007 had given rise to the plaintiff's current state by either aggravating degenerative changes or by causing an auto immune response and possibly auto-immune arthritis.[48] In offering this diagnosis, Dr Sulava rejected the evidence of the defendant's medico-legal specialist, rheumatologist, Dr Fraser who following two assessments of the wrist injury[49] said that he had found clinical signs of psoriasis. Dr Fraser diagnosed low-grade inflammatory arthritis involving the plaintiff's left wrist which he believed was probably due to psoriasis.
[48] TN 97
[49] DCB 20-28.
94 Following referral from Dr Sulava, Dr Stockman examined the plaintiff twice. The first occasion was on 20 December 2007 after which he sent a report to Dr Sulava, followed by a review on 12 February 2008, after which the rheumatologist sought the claims agent's permission to accept the cost of a fluroscopy guided steroid injection into the plaintiff's distal radio-ulnar joint.
95 Dr Stockman has provided additional reports, the first to the claims agent on 22 August 2008 and the most recent to the plaintiff's solicitors on 7 October 2010.
96 Unfortunately, the history of injury the plaintiff gave to Dr Stockman both in December 2007 and on review in February 2008 omitted any reference to the problems with her left wrist during October and pre-8 November 2007 or, for that matter, to the earlier carpal tunnel decompression procedure. The plaintiff did however report earlier injury to her right shoulder and knees which she claimed had not responded to anti-inflammatory medication, Celebrex.
97 On presentation, it appears that the plaintiff’s symptoms -- slight swelling and marked tenderness in the left wrist and marked restriction of movement of the wrist -- the results of the x-rays and the blood tests did not indicate any clear pathology to explain her symptoms. Dr Stockman, no doubt influenced by the history he reviewed, believed these were trauma-related symptoms, for which he at first prescribed a reducing dose of prednisolone. His examination on this date also extended to the plaintiff's right shoulder and her knees, attributing the plaintiff's report of pain on movement of her right shoulder to rotator cuff tendonopathy and whilst he noted crepitus, he found no effusion in either of her knees.[50]
[50] PCB 112-114.
98 Dr Stockman also arranged an MRI scan on 27 December 2007 which he said indicated peri-tendon synovitis at several sites but especially in the flexor digitorum profundus tendon sheath of the index finger and effusion and synovitis of the distal radio-ulna joint.[51]
[51] PCB 113
99 Dr Stockman diagnosed tenosynovitis and synovitis in distal radio-ulna joint of the left wrist which at the time rendered the plaintiff unfit for work. Based on these findings the plaintiff was referred for physiotherapy and for the steroid injection to which I have already referred. In her second affidavit the plaintiff deposed that the injection she received on 19 May 2008 had only provided temporary relief from her symptoms. It seems however that the plaintiff has not since then returned to Dr Stockman or sought any other specialist treatment for her wrist condition.
100 Whilst I have accepted that the plaintiff may continue to suffer from recurrent symptoms in her left wrist probably in association with the arthropathy first reported in October 2007, I was not satisfied from the evidence of the extent to which the condition of her left wrist remained both symptomatic and disabling.
101 In reaching this conclusion I had regard to Dr Stockman's report to the plaintiff's solicitors on 7 October 2010 and to the Worksite Assessment Report dated 20 July 2008 prepared by the plaintiff's occupational therapist and acupuncturist, Mr Sharma. In the former, despite not having reviewed his patient following the steroids injection and no doubt with his diagnosis of tenosynovitis and synovitis in mind, Dr Stockman expressed optimism about the plaintiff's long-term prognosis and her ability to return to her previous work. In the latter Mr Sharma, amongst other things, reported that following the injection the plaintiff's wrist had settled well and that she had reported "no pain".[52]
[52] DCB 51.
102 In view of all the various matters discussed above I was not persuaded that, notwithstanding his role as a treating general practitioner, Dr Sulava's opinion regarding both the diagnosis and the relationship between any current wrist symptoms and the plaintiff's work should be preferred to the opinions of the two rheumatologists.
The Medico-Legal Evidence
103 The plaintiff obtained reports from orthopaedic surgeon, Mr Brearley and occupational physician, Dr Castle following examinations on 10 March 2010 and 16 September 2010 respectively.
104 I am unable to say from reading their reports what documents accompanied the letters of instruction. Relevantly I could not be satisfied that either of these specialists understood that in late 2007 the plaintiff's referral for investigations and to Dr Stockman related to a left wrist condition in which symptoms were manifest before the plaintiff sought treatment following the third injury.
105 In each of their reports the specialists reiterate and respond to a series of questions posed by the plaintiff's solicitors. The formulation of many of the questions added to the difficulty I had in interpreting and applying their responses for the purpose of determining this complex application.
106 The defendant relied on:
•
the three reports from orthopaedic surgeon, Mr Clive Jones who examined the plaintiff on 28 April 2005, 25 March 2009 and 26 November 2009;[53]
•
the three reports of rheumatologist, Dr Fraser who examined the plaintiff on 13 February 2008, 4 June 2009 and 9 December 2009;[54]
•
the report of occupational physician, Dr Wyatt who examined the plaintiff on 21 December 2007;[55] and
•
the report of orthopaedic surgeon, Mr Miller who examined the plaintiff in 2003 and whose conclusions I have already summarised.
[53] DCB 10-19.
[54] DCB 20-28.
[55] DCB 38 A-38 D.
As to the left knee, the first injury
107 It was common ground that prior to the first injury the plaintiff had pre-existing degenerative changes in both knees.
108 Mr Brearley received similar information to that given to Mr Kondogiannis concerning the current treatment and restrictions affecting both knees. Relevantly I was not satisfied that when he made his report Mr Brearley understood that the modified duties to accommodate the by then long- standing impairment of the plaintiff’s left knee were unchanged following the second injury during which the plaintiff said she also injured her left knee
109 His examination revealed some anterior tenderness and limitation on flexion in the left knee, with crepitus in both knees accompanying movement. Mr Brearly indicated that he viewed a selection of radiological film.
110 Having analysed his report and the questions to which he responded I understood Mr Brearley to have concluded that:[56]
[56] PCB 116.05-116.07.
•
in addition to a torn medial meniscus, as a result of the first injury the plaintiff aggravated pre-existing degenerative changes in her left knee;
•
the pathological changes in the plaintiff left knee were permanent and they compromised the integrity of the knee which remained susceptible to further injury and aggravation including aggravation from unrestricted domestic, recreational and employment activities;
•
taking into account her age, her injuries and her prior work experience the impairment of the plaintiff's left knee precluded employment on the open labour market;
•
40% of the plaintiff's current symptoms and impairment is attributable to the first injury, 20% to the second injury in so far as it involved her left knee, 20% to the nature of the plaintiff's employment with the defendant generally and 20% to the pre-existing degenerative changes. I must say that from reading his report I was unable to understand his rationale for any apportionment for current symptoms and impairment from any aggravation injury suffered on 20 February 2007;
•
the plaintiff was likely to come to total knee joint replacement as a consequence of her work injury. In view of the reference to Mr Burns who initially thought that the plaintiff would only require unicompartmental replacement I have assumed that when Mr Brearley spoke of "work injury" he too was referring to the first injury as the injury making a material contribution to this consequence.
111 On examination in September 2010 Dr Castle found marked crepitus in the left knee and flexion limited to 70°. He appears to have read the reports accompanying the MRI studies obtained for both knees in June 2010.
112 Again, following analysis of his report I was satisfied that Dr Castle reached similar conclusions to Mr Brearley concerning work-related impairment of the plaintiff's left knee and the likely need for total knee replacement in the future. However, in doing so this doctor appears to have miscalculated the apportionment process. The best that can be said for his attempt to apportion is that the doctor clearly viewed the first injury as the major contributor to the plaintiff's left knee condition.
113 Dr Wyatt's report is of less value to the defendant in this application because when she opined that any work-related aggravation of the plaintiff's knees had ceased she did not appear to have knowledge of any history relating to the first injury. In December 2007 she did however conclude that the plaintiff was fit for the work she was performing before her wrist problem developed.
114 Both Mr Jones and Dr Fraser appeared to have accepted that the first injury also involved aggravation of pre-existing degenerative changes in the plaintiff left knee. In his earliest report in 2005 Mr Jones envisaged ongoing symptoms. However, more recently both he and Dr Fraser have concluded that any work-related aggravation, presumably arising from both the first injury and the aggravation injury, has ceased and the plaintiff symptoms are now due to the natural progression of the disease. They view any ongoing incapacity for work by reason of her symptomatic left knee[57] as being unrelated to the first injury and the aggravation injury in 2007.
[57] According to Mr Jones the plaintiff has a light work capacity and she remains fit for modified duties- DCB 15. Dr Fraser however said that the plaintiff was unfit for work requiring climbing stairs or prolonged walking or standing-DCB 28.
115 Based on all of the material before me I could not be satisfied that, insofar as it involved any bruising of her knee or aggravation of the plaintiff’s left knee condition, the aggravation injury continues to contribute to the consequences of any ongoing impairment of the left knee. Therefore, whilst the plaintiff may have suffered a compensable injury to her left knee in conjunction with injury to several other body functions arising from the same circumstances as those in which she suffered the second injury, it probably does not amount to a serious injury for the purpose of the Act.
116 In reaching this conclusion I have given weight to the assessment by the treating general practitioner, Dr Horvat in his report made within months of the injury. He viewed the impact of this event on the plaintiff's left knee as minor. His report supports a finding that the plaintiff's treatment and, in due course, the restrictions on her employment duties relating to the condition of her left knee were probably the same. In other words, I was not satisfied that this event, which also involved the plaintiff's left knee, had given rise to any long- term worsening of the condition in the left knee or measurable consequences.
117 Despite the not inconsiderable difficulties in separating the injuries and their consequences, I have nevertheless rejected the opinion of the defendant's specialists that any aggravation of the underlying degenerative process in the plaintiff's left knee caused by the first injury had ceased and was now overtaken by a degenerative process clearly affecting both knees.
118 As the High Court explained in Darling Island Stevedoring & Lighterage Co Ltd v Hankinson,.[58] it cannot be said that an aggravation injury has ceased simply because the underlying disease would have proceeded to a similar stage in its own unaided progression.
[58] [1967] 117CLR 19 at pages 26-27.
119 It seems to me that these specialist opinions provide no rational explanation for how, in the face of an acute injury, persistent symptoms and ongoing modification of her duties to accommodate the impaired function of her previously asymptomatic left knee, the effects of the aggravation injury in 2003 had ceased and the underlying disease process had taken over.
120 Based on all of the evidence I was satisfied that, in addition to the meniscal tear caused by the first injury, the plaintiff suffered compensable aggravation injury to the underlying degenerative condition. Mr Kondogiannis' most recent investigations and findings indicate that the condition of the plaintiff's left knee has now deteriorated to a point where it is worse than the right knee in which an osteoarthritic condition was first diagnosed in 1998. In addition, Mr Kondogiannis found that the only viable treatment option is a knee replacement, although as yet the plaintiff is reluctant to go down this path.
121 I have also accepted that, irrespective of any other injury or condition and despite the difficulty in isolating all of the relevant consequences, the injury to the plaintiff's left knee has probably had a real and ongoing impact on her lifestyle and work capacity. However, the principal area of dispute is whether permanent impairment of the left knee renders the plaintiff unemployable for the foreseeable future.
As to the right shoulder, the second injury
122 Mr Brearley took a history of right shoulder injury. He read the reports accompanying the x-ray and ultrasound investigations obtained in 2007 and said that he was told by the plaintiff that she currently has limitation in movements of the right shoulder, she is unable to use the right arm fully, attempts at lifting and repetitive movements cause pain and she is unable to do tasks above shoulder height.
123 I was satisfied from reading his report that, despite being questioned about the right shoulder and elbow together, Mr Brearley’s opinions were formed by reference to the function of the plaintiff's right shoulder and his understanding of the pathology demonstrated in the earlier radiology.
124 Whilst Mr Brearley did not refer to the most recent investigations in November 2009, the results of these investigations nevertheless indicate likely ongoing pathology; that is subacromial bursitis and bursal impingement.
125 No doubt due to the way the questions were structured, neither Mr Brearley nor Dr Castle actually offered a diagnosis for the right shoulder injury. Accordingly, I formed the view that when Mr Brearley mentioned the pathology in the plaintiff's right shoulder he was referring to the pathology revealed by the earlier investigations.
126 In summary, Mr Brearley was of the view that:
•
the pathology in the plaintiff's right shoulder compromised the integrity of this body function;
•
taking into account her age, injuries and her prior work experience the impairment of the plaintiff's right shoulder precludes employment on the open labour market;
•
conservative treatment with medication and physiotherapy on an as needed basis should continue; and
• the plaintiff’s symptoms were likely to persist in the long term.[59] [59] PCB 116.07-08.
127 I have not taken the same approach to Dr Castle's report. I was not assisted by this report because Dr Castle does not make any reference to the results of the various investigations involving the plaintiff's right shoulder, he gives no diagnosis and when responding to the questions asked he fails to consistently distinguish between the shoulder and any elbow injury.[60]
[60] PCB 116.28.
128 I was unable to determine what radiological results, if any, Dr Wyatt took into account when she re-examined the plaintiff on 21 December 2007. Her conclusion that the plaintiff had a rotator cuff problem at the right shoulder suggests to me that she may not have viewed the results of the investigations carried out in 2007. In any event, it appears that Dr Wyatt first assessed the plaintiff's shoulder injury in June 2007. Relevantly, she reported (and this was consistent with Dr Horvat's reports) that prior to the third injury the plaintiff had returned to her normal duties with restrictions including avoiding a lot of overhead work such as dusting. Moreover, according to Dr Wyatt, with time the right shoulder had improved, such that in December 2007 the plaintiff was fit for modified cleaning duties so long as she avoided a lot of heavy work or repeated work above shoulder height.
129 In 2009 Mr Jones accepted the relationship between the development of subacromial bursitis in the right shoulder and the second injury, although he expressed concern because he believed that the plaintiff was exaggerating her symptoms and that there may be a pain disorder. Mr Jones correctly noted that from the plaintiff's own reports her left knee was her main concern.
130 In Mr Jones' opinion the impairment associated with each of the left knee, right shoulder and left wrist conditions was minor and the plaintiff, who had performed modified duties until the third injury, remained capable of performing modified duties as a Patient Services Assistant.
131 On each of the occasions Dr Fraser examined the plaintiff he too thought that she had exaggerated her shoulder symptoms, although he could not exclude the possibility that the plaintiff has ongoing subacromial bursitis which he also believed could be improved by injection of local anaesthetic. That the plaintiff has not chosen to pursue this treatment probably does, as the defendant submitted, indicate that her pain and disability resulting from the pathology demonstrated in her right shoulder is not as significant as she would have us believe.
132 Two years on from Dr Wyatt's findings, Dr Fraser also considered the plaintiff fit to work subject to restrictions on lifting and on any overhead, rapid repetitive or forceful use of her right arm.[61]
[61] DCB 28.
133 All of these matters, including the results of investigations in November 2009, suggest that in 2007 Dr Horvat accurately diagnosed a compensable shoulder injury which improved but was still symptomatic when the plaintiff first went off work in November 2007, ostensibly due to her left wrist condition.
134 Whilst theoretically the plaintiff may, as the defendant's specialists said, be able to perform restricted light work, the question that remains is whether she could do this having regard to the sorts of matters Mr Brearley had in mind when he concluded that the plaintiff was totally incapacitated for all work by reason of her right shoulder injury, the same range of matters the definition of "suitable employment" in the Act requires the Court to consider?
135 As I have already mentioned, the plaintiff's own evidence has indicated that any shoulder condition was a lesser problem than her left knee. She has not sought specialist treatment or pursued her first general practitioner's offer of treatment by way of injection.
136 I could not be satisfied from the medical evidence, the plaintiff's evidence or from her daughter’s global description of the plaintiff's limitations[62] that the right shoulder injury and any pain and suffering consequence of this injury meets the at least very considerable test. I will say more about any loss of earning capacity in due course.
[62] As for example the daughter's statement in paragraph 16 of her affidavit that her mother cannot without suffering exacerbated pain in her left knee, right upper extremity and left wrist perform home duties such as cooking, cleaning and laundry and her further statement in paragraph 19 to the effect that her mother had told her that she no longer wears heeled shoes because they cause extreme pain in her left knee, right upper extremity and left wrist (PCB 44.04-05).
As to the left wrist injury, the third injury
137 The defendant disputes compensable injury to the left wrist. Neither the treating specialist, Dr Stockman nor the medico-legal specialists, Mr Brearley and Dr Castle appeared to have been appropriately informed about the onset of symptoms in the plaintiff left wrist, before the incident relating to the third injury.
138 Accordingly, when in August 2008 the treating rheumatologist, Dr Stockman diagnosed tenosynovitis and synovitis in the distal radio-ulna joint of the left wrist caused by the third injury he was probably ignorant of the history of symptoms preceding this incident, after which the plaintiff was certified as unfit for work between 9 November 2007 and early 2008 and she was eventually treated with an injection of steroids into her wrist.
139 Having read this treating doctor's report dated 7 October 2010, prepared without reviewing his patient, I was not satisfied that the copious materials to which the rheumatologist said he had regard countered the likely significant omission in his understanding of the development of symptoms in the plaintiff's left wrist.
140 In my view his opinion that the third injury precipitated synovitis in the left wrist is not a reliably informed opinion, although as it turns out his evidence does not assist the plaintiff because he also believes that any synovitis precipitated by the third injury, which he expected to settle, is unlikely to still be related to this incident.[63]
[63] PCB 115.03.
141 The reports submitted by Mr Brearley and Dr Castle are similarly unreliable because of the absence of evidence of an accurate history of the development of symptoms. Nevertheless, their clinical examinations revealed tenderness in the wrist, some limitation of movement and, following his examination, Mr Brearley also reported finding some swelling over the dorsum and lower part of the wrist. These findings are in contrast with Mr Jones' clinical findings on 26 November 2009 when he said that he was unable to find any pathology in the plaintiff's wrist.[64]
[64] DCB 17.
142 Having viewed the earliest x-ray results from October 2007 Mr Brearley was no doubt aware of the possibility of there being an inflammatory arthropathy. However, in responding to the questions posed by the plaintiff's solicitors neither he nor Dr Castle offered any diagnosis of the injury or any opinion as to the relationship between the plaintiff's ongoing symptoms and the third injury.
143 In December 2007, following her examination of the plaintiff, Dr Wyatt voiced her suspicion that the plaintiff was suffering from non-work-related inflammatory arthritis. Of the defendant's specialists Dr Fraser's reports provide the best informed analysis of any likely diagnosis and of the current position concerning the plaintiff's left wrist.
144 On each of the occasions he examined the plaintiff in February 2008 and again in June 2009, Dr Fraser detected psoriasis affecting either the plaintiff’s left ear and knee or the left ear alone. In his view the MRI findings leave no doubt that the plaintiff is suffering from inflammatory joint disease. However, having also found evidence of psoriasis he was strongly of the view that this was psoriatic, not rheumatoid arthritis and that the plaintiff's condition was non-work-related.
145 It is a condition that he said may follow a low-grade course or go into remission. Relevantly, on review in June 2009, Dr Fraser noted that the plaintiff's left wrist symptoms had improved, although she remained unfit for work involving any repetitive or forceful use of her left hand.[65]
[65] DCB 25.
146 In this application I have preferred the evidence of the rheumatologists. Based on all the evidence I could not be satisfied that on 8 November 2007 the third injury resulted in anything more than a temporary strain or at best a temporary synovitis. If Dr Fraser is correct, any recurrent symptoms are probably due to a non-work-related arthropathy.
147 However, I accept that the condition of the plaintiff's left wrist was responsible for her being certified as unfit for work for a period between November 2007 and January 2008 after which she again returned to modified duties and worked 12 hours a week. Indeed, in keeping with Mr Sharma's Worksite Assessment Report, had these been available to her, I have also accepted as likely that following the steroids injection by July 2008 the plaintiff's wrist symptoms had probably settled.
148 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
149 The plaintiff alleges a total loss of earning capacity in respect to the knee injury and separately in respect to the shoulder injury. The defendant contested these claims, relying on the fact that after each injury the plaintiff resumed work as a Patient Services Assistant, albeit on modified duties.
150 In relation to her loss of any capacity under paragraphs s134AB(38)(e) and (f) of the Act (as amended), the plaintiff was required to prove that at the date of hearing, her loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
151 The loss of earning capacity is measured by comparing the income the plaintiff is earning whether in suitable employment or not or capable of earning in suitable employment as at the date of hearing, which ever is the greater ("the after-injury earnings") and the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the first injury and the second injury as most fairly reflects her earning capacity had each injury not occurred ("the without-injury earnings").
152 The income compared is gross income from personal exertion, expressed at an annual rate.
153 As this application involved injuries on separate dates to several body functions there was discussion at hearing about the proper approach to the determination of the without-injury earnings figure under the statutory formula contained in s134AB(38)(f) of the Act.
154 A statement of calculation of the plaintiff's loss of earning capacity was submitted to the Court at the commencement of the hearing. In this application it was common ground that the plaintiff's gross annual income for the year ending 30 June 2006, $32,180 or $618.85 per week, probably most fairly reflects the plaintiff's earning capacity had any of the injuries not occurred. [66]
[66] TN 148 and 189.
155 In Grech v Orica Australia Pty Ltd[67] in the course of his discussion of the difference between injury and the consequences of injury, Appeals Justice Ashley stated as follows:
"Suppose that a worker suffers the onset of incapacitating back pain on a particular day at work, but that the same is a manifestation of compensable injury attributable to employment strains over a period of years, such strains having contributed to spinal degeneration and so set the scene for the emergence of incapacitating symptoms. How should pre-injury average weekly earnings then be calculated? Should they be calculated at the time of the first employment strain, or the last, or some other time? And what happens if the breakdown occurs whilst the worker is at home? The practical answer has been that pre-injury average weekly earnings have always been calculated by reference to the worker's earnings at the time of development of incapacitating symptoms.
Much the same considerations apply when one is considering "current work capacity" and "suitable employment". Each of these terms is defined in s.5 (1), the definitions referring to the worker's "pre-injury employment". The definitions only work if the external manifestation of unwellness is treated as injury."[68]
[67] [2006] VSCA 172.
[68] Ibid paragraphs 74 and 75.
156 Drawing on His Honour’s reasoning above, in my view if, for the purpose of s134AB(38)(f), there is to be any fair measurement of a worker’s loss of earning capacity where, for example, injury can involve injury arising out of or in the course of, or due to the nature of employment on or after 20 October 1999, “injury” should probably be equated with the time of the development of incapacitating symptoms. On any view of the evidence between the date of the first injury in 2003 and March 2008, due to ongoing impairment of her left knee, the plaintiff was physically incapacitated for her full-time unrestricted pre-injury duties. Moreover, between the date of the second injury and March 2008 due to impairment of her right shoulder the plaintiff exercised a limited capacity to perform her already modified duties. Each of these circumstances had not changed after the third injury.
157 In Acir v Frosster Pty Ltd,[69] His Honour Justice Forrest analysed in some detail the not inconsiderable task of determining the without-injury earnings figure. His analysis, amongst other things, confirmed that the court must consider different scenarios and focus, as the provision does, on "earning capacity" (rather than loss of earning capacity)[70] to determine which of these most fairly reflect the earning capacity of the worker without injury. In the three years before and the three years after either injury, notwithstanding the development of her incapacitating symptoms in different body functions, the plaintiff resumed modified full-time duties apparently intended to accommodate the impairment of her left knee and subsequently the impairment of her right shoulder. In circumstances where, for the purpose of paragraph (f), the plaintiff's gross annual income for 2006 has been accepted as the without-injury earnings figure in respect to each injury further consideration of the plaintiff's earning capacity in the three years before and after the second injury is unnecessary.
[69] [2009] VSC 454 at paragraphs 158 to 179 inclusive.
[70] Ibid, paragraph 173.
158 Broadly speaking, I must consider the possibility of employment following the first injury to the plaintiff’s left knee and following the injury to the plaintiff's right shoulder, by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the amended definition of "suitable employment" in s5 of the Act elaborates. The ultimate concern is whether, having regard to impairment of either body function, the plaintiff has a physical capacity for work which, if exercised, would result in her exceeding the statutory threshold of 60% of gross income earned from personal exertion.
159 As I have mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of her left knee and/or of her right shoulder permanently restricts her employment options. The determination of this issue also takes into account the reasonableness of her attempts, if any, to participate in rehabilitation or retraining and she must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
160 The plaintiff has not sought any employment, undergone any retraining or attended any rehabilitation programs as she believes herself to be totally incapacitated for any form of employment.
161 As a preliminary to my discussion of each impairment I find that:
•
the 61-year-old plaintiff had a very limited formal education in Bosnia. Her only formal qualification appears to be the Patient Services Assistant Certificate obtained by her many years ago;
• there are limitations on the plaintiff's English-language skills; •
the plaintiff's experience over her working life in Australia is limited to unskilled factory and cleaning work and the range of cleaning and service duties performed by her as a Personal Services Assistant over approximately 15 years;
•
left knee replacement surgery is currently indicated as the only viable form of treatment available to the plaintiff for her left knee condition. The treatment of her right shoulder condition remains conservative.
The left knee injury
162 Dealing first with the left knee injury I note that the plaintiff has suffered a significant injury which has made a material contribution to the need for total knee replacement. One consequence of this injury is that for some years prior to March 2008, when the plaintiff ceased performing all of her duties probably partly as a response to the withdrawal of modified duties, impairment of the plaintiff’s left knee reduced her capacity to perform her pre-injury duties as a Personal Services Assistant. This is something the defendant had accommodated by offering modified duties until March 2008.
163 Whilst Mr Sharma's report indicates that prior to the plaintiff’s resignation in 2009 the defendant continued to work towards the plaintiff returning to her pre-injury duties, it seems to me that asking the plaintiff to modify her approach to her full-time pre-injury duties as a means of accommodating physical impairments of several body functions was somewhat different to offering her appropriately modified full-time duties. To some extent this helps explain why at hearing Dr Sulava described Mr Sharma's recommendation as ridiculous.
164 Consistent with Dr Horvat's report in 2005 one of the likely consequences of the plaintiff’s left knee injury was that the impairment of the plaintiff's left knee has left her with a permanent incapacity for duties with the defendant or in alternative employment which placed stresses and strains on this knee. Moreover, allowing for her age, background, education and skills base once the defendant no longer offered duties tailored to account for the impairment of this knee, the impact on the plaintiff's ability to work was probably significant. Indeed, all of the medical practitioners have accepted that the plaintiff suffers from a permanent impairment of her left knee, although Mr Jones, who characterised this as minor, and Dr Fraser both concluded that the plaintiff still has a light work capacity.
165 In this regard I have preferred the greater body of evidence which indicates that currently and for the foreseeable future the plaintiff is probably totally incapacitated for work by reason of the condition of her left knee, the only viable treatment option for which appears to be knee replacement.
166 As to the plaintiff's current and future loss of earning capacity I was satisfied that:
•
the plaintiff probably has no current physical capacity to return to full-time unrestricted duties as a Personal Services Assistant. This finding is informed by, amongst other things, the medical evidence submitted by both the plaintiff and the defendant. Impairment of the left knee makes a material contribution to this outcome;
•
the plaintiff's education, experience and work history restrict employment options to unskilled work and work which would typically place stresses and strains on the plaintiff's left knee;
•
if the incapacity affecting this body function is separately combined with factors such as the plaintiff's limited English-language skills, her age, education, skills and work experience the plaintiff is probably unable to undergo occupational retraining; and
•
having regard to, amongst other factors, the plaintiffs left knee incapacity, pre-injury employment, age, education, skills and work experience she is probably not capable of earning in suitable employment in accordance with the amended definition contained in s5 of the Act;
The right shoulder
167 Dealing next with the right shoulder injury, I note that when she injured her right shoulder the plaintiff's physical capacity for employment for the foreseeable future was already compromised by the impairment of the function of her left lower limb, which nevertheless allowed the plaintiff to work full-time, albeit in an artificial environment where the defendant tailored duties to meet her needs. As events have turned out assessment of the plaintiff’s status in 2010 indicates that away from this environment she is probably totally incapacitated for employment by reason of the impairment of her left knee.
168 Prior to ceasing her duties in March 2008, by reason of the work-related impairment of the plaintiff's right shoulder, the plaintiff exercised a limited capacity to perform the modified full-time Personal Services Assistant duties she had been performing before the second injury.
169 However, it appears that following the second injury which involved injury to several body functions, the plaintiff never again performed her normal duties modified to accommodate her left knee injury full-time.
170 In these circumstances I find that:
•
prior to the second injury the plaintiff was not capable of performing her normal duties without modification;
•
prior to the second injury any other pre-existing conditions affecting, for instance, the plaintiff's right wrist and right knee were not then impacting on the plaintiff earning capacity;
•
any injury other than the right shoulder injury suffered as a result of the circumstances giving rise to the second injury was probably temporary and probably had no long-term or appreciable impact on the plaintiff's earning capacity;
•
after resuming work following the second injury the plaintiff's duties were further modified to accommodate her right shoulder injury and when the left wrist condition emerged the plaintiff's earning capacity was and continued to be reduced by injury-related impairment of her right shoulder which effectively required her to avoid using her dominant right arm to perform, amongst other tasks, repetitive and overhead work and lifting;
•
I am unable to conclude that the current wrist condition is work-related or assess the extent to which (if any) it impacts on the plaintiff's work capacity;
•
practically speaking the right shoulder impairment continued to contribute to the plaintiff's loss of earning capacity even after the condition of the plaintiff’s left wrist and the withdrawal of modified duties caused the plaintiff to stop work;
•
arguably following the injury to the plaintiff's right shoulder, which also impacted on the use of her dominant arm, whatever physical earning capacity remained for the plaintiff to continue performing even modified cleaning come service duties was also significantly compromised with the imposition of further restrictions. However, the reduction of the hours worked to 12 hours per week appears to have coincided with the later emergence of the left wrist condition.
171 Notwithstanding the difficulties in unravelling the evidence in this case, on balance, I was satisfied that the plaintiff has independently established a total loss of earning capacity as a consequence of the right shoulder injury which probably precludes a return to her pre-injury employment and in all the circumstances prevents her from undertaking alternative employment. The circumstances to which I refer include her age, level of education, English language skills, work experience and the fact that the plaintiff's dominant right arm is involved.
172 I was further satisfied that:
•
the plaintiff probably has no current physical capacity to return to full-time unrestricted duties as a Personal Services Assistant. This finding is informed by, amongst other things, the medical evidence submitted by both the plaintiff and the defendant. Impairment of the right shoulder makes a material contribution to this outcome;
•
the plaintiff's education, experience and work history restrict employment options to unskilled work and work which would typically place stresses and strains on the plaintiff's dominant right arm and her right shoulder;
•
if the incapacity affecting this body function is separately combined with factors such as the plaintiff's limited English-language skills, her age, education, skills and work experience she is probably unable to undergo occupational retraining; and
•
having regard to, amongst other factors, the plaintiffs right shoulder incapacity, pre-injury employment, age, education, skills and work experience she is probably not capable of earning in suitable employment in accordance with the amended definition contained in s5 of the Act.
173 Accordingly, applying the tests under the Act either by reason of the ongoing impairment of her left knee or the impairment of right shoulder:
• I find that the plaintiff has a loss of earning capacity of 40% or more and that she will, after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more; • I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff's capacity for employment or to improve it to a level that would take her over the statutory threshold; and • the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, her loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable. 174 As the plaintiff is entitled to leave in respect to loss of earning capacity consequences to which the impairment of her left knee and the impairment of her right shoulder continue to make a material contribution I am not required to separately determine the pain and suffering consequences aspect of this application.
Orders 175 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering and pecuniary loss damages for work-related injury to:
• her left knee on 25 February 2003; and • her right shoulder on 20 February 2007. 176 The application for leave in respect to injury to the plaintiff's left wrist on 8 November 2007 is dismissed. 177 I will hear from the parties as to the making of appropriate orders.
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