Nguyen v Aisin Australia Pty Ltd
[2012] VCC 779
•1 June 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00851
| THI THANH THUY NGUYEN | Plaintiff |
| v | |
| AISIN AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 April 2012 | |
DATE OF JUDGMENT: | 1 June 2012 (Revised) | |
CASE MAY BE CITED AS: | Nguyen v Aisin Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 779 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – serious injury application – injury to the neck – injury to the right shoulder – injury to the left and right shoulder as one body function – psychiatric injury including Depression and Adjustment Disorder – leave granted
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Ansett Australia Ltd v Taylor [2006] VSCA 171; Ilievski v Ilievski Pty Ltd & Anor [2010] VCC 1623; Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; Petkovski v Galletti [1994] 1 VR 436
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Slater & Gordon |
| For the Defendant | Mr C O’Sullivan | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and (c) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application in respect to s.134AB37(a) is injury to the:
(i)cervical spine;
(ii)left upper arm;
(iii)right upper arm.
6 The mental or behavioural disturbance or disorder relied upon in respect to s134AB(37)(c) is described as a psychiatric injury, including Depression and Adjustment Disorder.
7 The plaintiff relied upon two affidavits, sworn 14 October 2010 and 20 March 2012. The plaintiff and Dr Luu were cross-examined. In addition, both parties relied on medical reports and other material which were tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1]S.134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant after 20 October 1999.[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of each of her impairments, namely to the cervical spine, left upper limb and right upper limb must be considered separately in relation to “pain and suffering” or “loss of earning capacity” and each must be “serious” – that is, when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable.[4]
(d)“the consequences” to the plaintiff of her psychiatric injury, including Depression and Adjustment Disorder in relation to “pain and suffering” or “loss of earning capacity” must be more than serious to the extent of being severe when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be.[5]
(e)The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”.[8]
(f)Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in s.93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[9]
(g)The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury”.[10]
[2]S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]S134AB(38)(b) and (c)
[5]S.134AB38(d)
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis [1998] 3 VR 833 at 846
[9]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
[10]S.134AB(38)(h) of the Act
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[11]
[11]S.134AB(19B) and 38E of the Act
(i) that at the date of hearing she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (e) of s.134AB(38) of the Act;[12]
[12]S.134AB(38)(e)(i) of the Act
(ii) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[13] and
(iii) that even with rehabilitation and retraining she will still sustain a loss of 40 per cent or more.[14]
[13]S.134AB(38)(e)(ii) of the Act
[14]S.134AB(38)(g) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages, that is both pain and suffering and loss of earning capacity.[15]
[15]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63]
12 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[16]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[17]
[16][2009] VSCA 181
[17]ibid at [42]
14 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[18]
[18]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
15 The test for “serious”, as set out in paragraph (b), (c) and (d) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
16 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[19]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[20]
[19]S.134AB(38)(j) of the Act
[20] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
17 Counsel for the defendant informed the Court that:
(a)This is a “range case”, namely, that the physical consequences of the bilateral shoulder and neck injuries do not meet the test of seriousness for pain and suffering.
(b)The medical evidence suggests the plaintiff has pre-existing degeneration in both the cervical spine and the shoulders. The defendant submits that any aggravation of the impairment or loss of body function to her bilateral shoulders and/or neck as a result of her employment with the defendant is not serious.
(c)The medical evidence suggests there is a significant non-organic component to the plaintiff’s presentation. The onus is upon the plaintiff to disentangle the impairment that is consequent on the organic injury.
(d)The plaintiff’s psychiatric consequences do not constitute a permanent severe mental or permanent severe behavioural disturbance or disorder.
(e)The medical evidence indicates the plaintiff has a capacity for full time suitable employment; alternatively, the plaintiff has a capacity for suitable employment which would result in her earning more than 60 per cent of her pre-injury earnings in accordance with s.134AB(38) (e) and (f) of the Act.
The Plaintiff’s Evidence
18 In her affidavits sworn on 14 October 2010 and 20 March 2012, the plaintiff deposes that:
· She was born in 1960. She commenced work with the defendant in June 2006.
· In about September 2007, she started to have pain in her right shoulder when she was working as a machine operator and production line worker. This work was repetitive and strenuous on her arms and neck. Her symptoms become worse during the course of the day. She consulted her general practitioner, who prescribed anti-inflammatory medication and referred her for physiotherapy. Her symptoms did not improve.
· She attempted to continue to work while undergoing physiotherapy, but could not perform her duties and was placed on light duties with restricted hours.
· She ceased work in about January 2009.
· She also had symptoms in her neck and left shoulder. She has received cortisone injections into her shoulders, which gave her temporary relief, and also received hydrotherapy.
· She speaks, reads and writes very little English and is computer illiterate. She is currently attending an English language course at the Sunshine Community Centre twice per week for three hours per day.
· She has ongoing chronic neck pain and movement of her neck causes pain. She has throbbing pain in the right shoulder joint, worse with activity, and some limitation of movement. She has similar symptoms in her left shoulder. The pain in her arms and fingers continues.
· She currently takes anti-inflammatory and pain medication. She also does some exercises at home and uses a heat pack on her shoulders and neck at night. She continues to see her general practitioner once or twice a month.
· She is restricted in driving long distances. She is limited in the performance of household and domestic activities and her partner helps with the chores. She no longer enjoys socialising and meeting with friends and feels withdrawn and unmotivated.
· She suffers severe Depression and has suffered from insomnia, fatigue, impairment of concentration and memory, weightloss, tremors and nightmares.
The Plaintiff’s Evidence in Cross-examination
19 The plaintiff was cross-examined and gave the following pertinent evidence:
· At the time she was terminated she was performing light work, one hour online and two hours offline, six hours per day.
· She enjoyed working for the defendant.
· She experienced pain in her right shoulder first. At the present time the right shoulder is more painful than the left, but when she swore her first affidavit, her left shoulder was more painful.
· She was terminated because she could not cope with the work that she was given and she could not work as a machine operator.
· She would like to return to light duty work. She wants to earn a living.
· She attempted to continue studying English, but was unsuccessful.
· She agreed she could perform housework for between half an hour to an hour but because of the pain she stops to rest. There are some chores that result in pain for two to three days.
· She walks daily for 20 to 30 minutes to alleviate her stress. In winter she uses a treadmill at home.
· She swam once a week but stopped in 2010 because of the cost.
· She enjoyed the social contact at work.
· She has not applied for any jobs since ceasing work because she must tell employers of the pain she suffers.
· She thought she could deliver newspapers and pamphlets for a short time.
· She would be happy to try working at a factory but she is not sure whether she could cope with the work she had performed for other employers.
20 In re-examination, the plaintiff said:
· Hanging up clothes, mopping the house and ironing caused her a lot of pain. She performed these tasks before the injury. She performs those tasks only if no one else does them and for a short time.
· When working with the tomatoes she was expected to work very fast, which she cannot do.
Investigations
Right Shoulder
21 On 9 November 2007, an x-ray and ultrasound of the right shoulder concluded:
(i)right supraspinatus tendinosis/tendinopathy with impingement on abduction during dynamic scanning but no frank tear;
(ii)right longhead of biceps tenosynovitis;
(iii)right subdeltoid subacromial bursitis with bursal impingement on abduction during dynamic scanning. Ultrasound-guided shoulder steroid injection may be of therapeutic benefit.
22 On 17 March 2012, an ultrasound of the right shoulder showed a small full thickness supraspinatus tear, a subscapularis tendinosis and subacromial bursitis with impingement.
Left Shoulder
23 On 3 April 2008, a left shoulder x-ray was performed which was normal. A left shoulder ultrasound was performed, which showed left supraspinatus tendinitis, with subacromial bursitis and impingement.
Right and Left Shoulder
24 On 25 August 2008, an MRI scan of the right and left shoulders was performed. The MRI scan of the right shoulder concluded that there was minimal supraspinatus and subscapularis tendinosis in the setting of subacromial spurring and possible tiny articulate surface tear of the supraspinatus tendon.
25 The MRI scan of the left shoulder revealed that there were some signs of supraspinatus tendinosis.
26 On 25 September 2009, an ultrasound of the right shoulder demonstrated a small thickness tear of the supraspinatus that is evident with the supraspinatus placed on full stretch. An ultrasound of the left shoulder confirmed no evidence of supraspinatus tear.
MRI Scan of the Cervical Spine
27 On 25 March 2008, an MRI scan of the cervical spine was performed. The conclusion was C3-4, central disc protrusion indenting the middle of the ventral cord. C4-5 to C6-7, broad-based disc bulges combining with straightening of the cervical lordosis resulting in mild central canal stenosis. Normal signal to the cervical and upper thoracic cord. Central disc protrusions at T2-3 and T3-4 coming in contact with, but not compressing, the thoracic cord.
28 On 27 November 2008, an MRI scan of the cervical spine showed multilevel disc herniation was present, maximum at C3-4. There was indentation of the exiting left C7 nerve root within the foramina by disc and osteophyte.
29 On 23 April 2010, an MRI scan of the cervical spine showed:
· At C3-4 there is a posterior disc protrusion which indents the anterior thecal sac and cord. However, there is no myelopathic change;
· C5-6 posterior disc-osteophyte complex with a central posterior disc protrusion component. Whilst the anterior thecal sac is indented, there is no significant central canal. Mild, left greater than right, bilateral neural foraminal narrowing;
· At C6-7 there is mild to moderate left and mild right neural foraminal narrowing, with contact of at least the left exiting C7 nerve root;
· Other multi-level cervical spondylosis.
The Plaintiff’s Medical Evidence
Dr Louis Luu
30 Dr Luu, the plaintiff’s general practitioner since August 2009, provided medical reports dated 15 April and 28 November 2010 and 26 March 2012. Dr Luu was cross-examined.
31 Dr Luu said the plaintiff spoke very little English and attended his practice as he conversed with her in Vietnamese. She had worked for three years prior to her injury, which occurred on 3 September 2007 when she initially experienced significant pain in the right shoulder and neck and later the left shoulder. She received treatment in the form of analgesic and anti-inflammatory medications and physiotherapy. She returned to work doing light duties on a part-time basis. Her pain and functional capacity deteriorated. On 23 January 2009, she was made redundant. Dr Luu diagnosed:
·right shoulder rotator cuff syndrome complicated by a full thickness tear of the supraspinatus tendon;
·left shoulder rotator cuff syndrome;
·multiple level cervical spondylosis with disc prolapse causing spinal cord compression at C3-4;
·Chronic Pain Syndrome with Stress, Anxiety and Depression.
32 It was Dr Luu’s view that the left and right shoulder injury were entirely caused by the plaintiff’s work due to its manual nature. The neck condition was largely caused by her work, but constitutional factors such as age and natural degeneration contributed. The plaintiff’s Chronic Pain Syndrome with Stress, Anxiety and Depression were secondary to the shoulder and neck conditions. Dr Luu said that the plaintiff had no capacity for any type of work as she had difficulty even with activities of daily living. He thought her shoulder condition would improve following shoulder surgery. He said her neck condition was likely to persist due to the multiple levels of disc involved and the unlikelihood of surgical intervention.
33 In 2012, Dr Luu said that in relation to the right shoulder, her prognosis was poor without surgical intervention. Conservative treatment techniques, including cortisone injections, had not resulted in sustained improvement. With regard to the left shoulder rotator cuff syndrome, her prognosis was poor without surgical intervention. In relation to her neck condition, he said the overall prognosis was poor. He said her neck pain and associated disability had become chronic, fluctuating in severity, depending on physical activity and weather conditions.
34 There was a poor prognosis for her Chronic Pain Syndrome with Stress, Anxiety and Depression due to the chronic pain and disability and lack of hope for future employment opportunities. He said her current medication included Lyrica, Panadol Osteo, Mobic, Lactulose and ABC medicated plaster. He thought she would need anti-depressants. He said she needed access to medications for pain control, a pool facility in a leisure centre, psychologists for counselling and review by the Dorset Rehabilitation Team. He said she may need surgery to her shoulders and possible cervical disc decompressive surgery and rehabilitation following those procedures. She required referral to a psychiatrist in the event of further deterioration of her mental state.
35 In cross examination, Dr Luu said:
· The plaintiff was reluctant to undergo surgery so had opted for treatment of rehabilitation, cortisone injections and physiotherapy. She has now reached a situation where she would accept surgery and is waiting on an appointment with Mr Bonomo.
· The majority of the plaintiff’s injury to the left and right shoulders was work-related.
· He had not prescribed antidepressants as he did not believe she needed them.
· She needed to be reviewed by a psychiatrist. She is currently being treated by a psychologist.
· The plaintiff could work on a conveyor line provided she did not have to lift her shoulders above shoulder level and she did not have a neck problem.
· The physical complaints with the plaintiff’s shoulders had not improved. The neck had improved at times but in general had not improved. Her psychiatric issues are getting worse.
· He agreed that the non-organic factors are contributing to her incapacity for employment which he assessed at 10 per cent.
· Delivering newspapers and leaflets would not be a viable employment for the plaintiff because of the pain.
36 In re-examination, Dr Luu said:
· Considering the plaintiff’s physical issues only: (a) in respect of her neck condition, he did not believe she had any capacity for work; (b) in respect to her right shoulder alone, he did not think she had any capacity for work; and (c) in respect to her shoulders as one, he did not believe she had any capacity for work.
· He said when the plaintiff was referred to the Dorset Rehabilitation Centre she was receiving treatment for chronic pain from a psychologist. He said there was psychological improvement after the program as the plaintiff was able to deal with her pain better, but her physical problems remained.
· The right shoulder ultrasound performed in 2012 showed the plaintiff has a full thickness tear in the supraspinatus tendon. There is inflammation around the tendon which causes impingement when she raises her arm.
Mr Patrick Lo
37 On 13 May 2010, the plaintiff was referred to Mr Patrick Lo, neurosurgeon, by her general practitioner. Mr Lo confirmed that the MRI scan had shown multiple level cervical spondylosis with a C3-4 central disc/osteophyte protrusion, C4-5 broad disc bulge, C5-6 broad disc bulge and a C6-7 broad disc and osteophyte complex. He said there was no evidence of neural or spinal compression or signal changes in the spinal cord. He said she did not require cervical spine surgery.
Dr Frank Laska
38 On 10 August 2010, Dr Laska, consultant physician and rheumatologist, saw the plaintiff on referral from her general practitioner. Dr Laska obtained a history of musculoskeletal symptoms having been present for three years which began gradually with progression over time while the plaintiff was undertaking her usual duties of employment. It was his view that the plaintiff had degenerative changes in the cervical spine between C3 and C7. He said there was an early rotator cuff degeneration in the most recent ultrasound. He recommended a significant rehabilitation program, including a pain management strategy for the plaintiff. He noted that previous injections with ultrasound-guided administration of steroid had proved to be of minimal use and suggested deeper injections in the future.
Mr Anthony Bonomo
39 In January 2010, Mr Bonomo, orthopaedic surgeon, saw the plaintiff on referral from her general practitioner. He said that the plaintiff had limited English and he needed to see the plaintiff with an interpreter or family member who had a good command of English. He was able to ascertain that she had had bilateral shoulder and neck problems for almost three years. He said that an arthroscopic subacromial decompression could be of benefit.
Medical Panel
40 On 23 October 2009, the Medical Panel said that the plaintiff was suffering from an aggravation of multi-level cervical disc degeneration without radiculopathy, and mild left shoulder rotator cuff dysfunction relevant to the claimed neck and left shoulder injuries. In the Panel’s view, the plaintiff’s employment was a significant contributing factor to the plaintiff’s mild left shoulder rotator cuff dysfunction and the aggravation of the plaintiff’s cervical disc degeneration.
Mr John McTeigue
41 On 8 December 2009, Mr McTeigue, surgeon, provided a medical report and impairment assessment of the left shoulder and cervical spine relating to the plaintiff. Mr McTeigue said that, despite the assistance of an interpreter, communication with the plaintiff was extremely difficult. It was his view that the plaintiff had disc degeneration throughout the cervical spine and, in particular, a central disc protrusion at C3-4. He said objective clinical findings included painful limitation of neck movement. He said there were no objective clinical signs of radiculopathy.
42 In relation to the left shoulder, he said the plaintiff had clinical signs of supraspinatus tendonitis. There was painful limitation of joint motion. He said the time frame for stabilisation was uncertain and symptoms usually persist for several months.
Dr Martin Dang
43 Dr Dang, chiropractor, said the plaintiff had been attending the clinic since 1 October 2009. It was his view that the plaintiff’s symptoms and examination findings were consistent with a diagnosis of myofascial pain syndrome, of bilateral shoulder, neck and upper back pain, in addition to shoulder biomechanical joint dysfunction involvement of the cervical disc problems. He accepted that the plaintiff’s employment was a significant contributing factor because the fast and repetitive nature of her work and the mechanism of injury was consistent with the plaintiff’s clinical condition, especially her bilateral shoulder inflammation. He accepted that there was a direct relationship between the plaintiff’s symptoms and the injury to her bilateral shoulder, neck and upper back pain. He said that her cervical and thoracic spine injuries are somewhat related to constitutional and degenerative factors. He thought the plaintiff was unfit to work.
Dr Graham Boothby
44 Dr Boothby, occupational physician, provided reports dated February, April, and October 2008 and March 2009 at the request of the defendant’s insurer. Dr Boothby practises under the name of OccWest. He saw the plaintiff on 15 June 2006 for a pre-employment medical assessment for the defendant prior to her commencing employment. She was declared fit for work.
45 On 12 September 2007, the plaintiff attended the clinic complaining of right shoulder pain, which started the previous day. She was prescribed anti-inflammatory medication, referred to physiotherapy and was placed on restricted duties. She was advised to avoid work with her right arm outstretched, not to lift weights in excess of two kilos and not to work above chest height, and to avoid generally repetitive actions.
46 On 30 October 2007, she complained of bilateral shoulder pain. In November 2007, she was referred for an ultrasound-guided cortisone injection in the right shoulder. By February 2007, she reported her symptoms had improved. On 29 February 2008, the plaintiff complained of worse pain which had been developing over the previous week. She was certified fit for sedentary office duties only.
47 With regard to her shoulders, Dr Boothby said there is bilateral evidence of degenerative changes in her rotator cuff and evidence of subacromial bursitis and bursal impingement. He said there had been no specific single injury, but it was possible that the repetitive work contributed to her right shoulder condition, being her dominant arm. He said the presence of similar changes on the left side makes it likely that constitutional factors are also significant.
48 Dr Boothby said the changes in her cervical and thoracic spine discs are related to constitutional and degenerative features and are not likely to be work-related. He said the plaintiff was not fit for work when considering the totality of her current problems. The plaintiff denied any past history of neck related injury.
49 In March 2009, Dr Boothby said the plaintiff’s condition had not changed. She continued to report bilateral shoulder girdle pain. She continued to work, performing very light modified duties for five hours per day. As her condition was not improving, her employer withdrew the alternate duties.
50 Dr Boothby said he had significant language difficulties in communicating with the plaintiff. He said that as there was a large degenerative component to both the plaintiff’s shoulder problems and her cervical spine, the future prognosis was not good. Medication, physiotherapy and surgical specialist referral have not improved her situation significantly. He said she was likely to require ongoing medication and support.
Mr Brendon O’Brien
51 In July 2008, the plaintiff was referred to Mr O’Brien, neurosurgeon, by Dr Boothby in relation to the cervical spine. Mr O’Brien considered the MRI scan performed in March 2008. He was unable to see any evidence of C3 or C4 nerve compression. He thought her referral pain could be facetal. It was his view that the plaintiff would benefit from a formal rehabilitation program. He thought the plaintiff could continue working from a cervical spine perspective.
52 In January 2009, Mr O’Brien reviewed the plaintiff. He reviewed an MRI scan performed on 27 November 2008, which had not changed significantly from the MRI scan of March 2008. Mr O’Brien said the plaintiff did not require any surgical intervention. He believed she had a capacity to work and recommended she work in a carefully controlled environment and refrain from any heavy lifting over 7.5 kilograms. He also recommended she avoid recurrent twisting, bending or straining, and work between shoulder and waist height.
Dr Hoang Tran
53 In April 2009, Dr Tran, general practitioner, said the plaintiff presented in October 2006 with a painful right shoulder. She was prescribed Celebrex, an anti-inflammatory medication. She returned on 15 September 2007 complaining of pain over both of her scapulae and shoulder regions, her right shoulder and arm. She had been seeing Dr Boothby. She was seen again in November and December 2007, January, March, May, July and September 2008 and January 2009. It was Dr Tran’s view that the plaintiff’s pain in her neck and shoulders was as a result of the nature of her work which involved repetitive shoulder movements. He said the plaintiff’s employment would be a significant contributing factor to her persistent injury. Dr Tran said the plaintiff denied any previous pain prior to work with her current employer. Dr Tran said the plaintiff would be fit to work on a long-term basis provided that her future work did not involve repetitive shoulder movements and heavy lifting as these could exacerbate her current symptomatology.
Ms Susan Thomas
54 In July 2009, Susan Thomas, physiotherapist, provided a report. The plaintiff had been receiving physiotherapy from the clinic since September 2007. It was her view that the plaintiff would benefit from continuing with hydrotherapy and functional restoration programs. She said intermittent cervical and thoracic traction will provide ongoing relief if symptoms persist.
Ms Sandra Nguyen
55 Ms Nguyen, psychologist, provided reports dated 2 April 2009 and 22 July 2009. Ms Nguyen diagnosed Depression. It was Ms Nguyen’s view that the plaintiff’s psychological condition developed as a result of her workplace injuries. Ms Nguyen did not believe that the plaintiff was mentally or emotionally capable of performing her pre-injury duties due to her poor memory, difficulty sleeping, inability to concentrate for long periods of time and current psychological state.
Mr Douglas Li
56 Mr Li, orthopaedic surgeon, saw the plaintiff on referral from Dr Graham Boothby in August, September, October and November 2008 and January 2009. It was his view the plaintiff had shoulder symptoms consistent with rotator cuff disease and symptoms related to her cervical spine and associated radiculopathy. He prescribed steroid injections to the right and left subacromial space performed under ultrasound guidance. He referred her to a physiotherapist for a range of motion and rotator cuff strengthening exercises. He thought her response to non-operative treatment had been encouraging and her prognosis was good. In January 2009, he said the plaintiff’s shoulders were not causing her too much trouble and she was to continue with non-operative treatment.
Mr Kenneth Brearley
57 On 7 March 2012, Mr Brearley, surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. It was Mr Brearley’s opinion that the extent of the plaintiff’s injuries were as follows:
·aggravation of marked degenerative changes throughout the cervical spine, resulting in mechanical neck pain;
·supraspinatus tendinosis and subacromial bursitis of the right shoulder;
·supraspinatus tendinosis and subacromial bursitis of the left shoulder.
58 He said she was continuing to have constant pain in the neck and both shoulders with resultant limitation in use of the arms. It was his view that there had been no improvement and her symptoms would persist for the foreseeable future. He said she would need ongoing conservative treatment and he was aware that she was to have a further subacromial injection into the right shoulder. He said she had no current work capacity as a result of the ongoing neck pain and the stiffness of her shoulders and limitation in the use of both arms. He said her future capacity will remain as it is at present for the foreseeable future.
The Defendant’s Medical Evidence
Dr Ralph Poppenbeek
59 In February 2008 and November 2009, Dr Poppenbeek, occupational physician, provided reports to the defendant’s insurer. He diagnosed bilateral rotator cuff tendonitis with impingement and said there was evidence of moderately severe, widespread, mid to lower cervical spine disc and facet joint degenerative disease. He considered that her clinical presentation was of a substantial pain and injury focus with associated Anxiety, Depression and agoraphobia.
60 Dr Poppenbeek said the plaintiff’s current medical condition was an overriding psychological disorder combined with moderately severe bilateral shoulder and neck condition. He accepted her condition was work-related. He said the radiology of the shoulders and neck indicated substantial pre-existing degenerative disease in the rotator cuff tendons and the cervical spine. He thought the pre-existing condition was a very significant contributing factor to the plaintiff’s current presentation.
61 Dr Poppenbeek said the plaintiff demonstrated substantial functional overlay. He suspected there was a primary injury to the shoulders but, so far as the neck was concerned, he said that was a progression of an already existing significant degenerative disease. He did not think the work activity would have been a significant contributing factor to the plaintiff’s current neck symptoms, but it would have been to her shoulder symptoms. He thought the plaintiff had a current work capacity, but was not fit for pre-injury employment.
62 Dr Poppenbeek thought the plaintiff would be fit for process work in the future with modifications. He imposed the following restrictions because of her physical condition:
·avoid strenuous upper body work and a lifting limit of about 5 kilograms continuously or 7 kilograms intermittently;
·vary the posture in regard to the spine as much as practicable;
·brief rest breaks every 45 to 60 minutes;
·avoid frequent or prolonged elevation or overhead use of the arms.
63 He thought from the physical injury alone, the prognosis should be good.
64 He thought the major issue for the plaintiff was the overriding psychological issues.
65 He reviewed the list of options in the Workstreams' NES report which comprised product assembler, costing supervisor, sales assistant, newspaper and leaflet deliveries and factory process work. He said physically the plaintiff could perform the duties in regard to her shoulder and neck conditions. Because of her poor grasp of the English language, she may have difficulties with crossing supervisor and sales assistant work.
Mr Peter Battlay
66 On 23 April 2009, Mr Battlay, orthopaedic surgeon, provided a dual purpose impairment assessment to the defendant’s insurer. He said the plaintiff had an impingement syndrome in her right shoulder and has obtained temporary improvement through repeated corticosteroid injections.
67 Mr Battlay said the plaintiff has developed widespread pain in her spine and left shoulder, as well as both arms and legs. Her non-physical symptoms outweigh any physical impairment. He could see no indication of a neck injury, although he accepted she had degenerative changes in the cervical spine. He said there was no evidence of injury or treatment for her left shoulder injury even though she complained of symptoms similar to that in the right shoulder. It was his opinion the plaintiff had not suffered a neck or left shoulder injury, therefore employment could not be a significant contributing factor. He said the plaintiff had a shoulder impingement syndrome and supraspinatus tendonitis in the right shoulder. He assessed the combined whole person impairment at zero.
Mr Robert Wilks
68 On 31 August 2009, Mr Wilks, clinical psychologist, saw the plaintiff at the request of the defendant’s insurer. Mr Wilks diagnosed an Adjustment Disorder with Depressed Mood which has arisen in reaction to her pain and incapacity and is secondary to her physical injury. He said the plaintiff’s psychological disorder is not in itself incapacitating her from any work. He said she was capable of all the jobs listed by Workstreams and said she had genuine motivation to work, although little capacity to direct herself back into the workforce.
Dr Chris Grant
69 On 21 December 2009, Dr Grant, psychiatrist, saw the plaintiff at the request of the defendant’s insurer. It was his opinion that the plaintiff suffered an Adjustment Disorder with Depressed and Anxious Mood which was secondary to her physical injury. He said her psychiatric condition in isolation does not cause a total loss of work capacity, but he referred to her limited language/literacy skills, limited transferable work skills and persistent physical symptoms so that her current capacity was probably nil.
Dr Kevin J Fraser
70 On 17 January 2011, Dr Fraser, rheumatologist, saw the plaintiff at the request of the defendant’s insurer. He said, even with the aid of an interpreter, it was impossible to obtain an accurate history, particularly as the plaintiff had left her “book” containing dates and other details at home. It was his opinion that there was no ongoing injury of a physical nature.
71 He said that the over-reaction on physical examination and the marked muscular tenderness suggested that she had a Chronic Pain Syndrome due to non-organic factors of a psycho-social nature. He said she had age-related degenerative changes in the cervical spine which may be contributing to her neck/upper back/shoulder girdle pain. He thought her employment would only have caused temporary symptomatic aggravation which would have ceased when she finished work.
72 In relation to her shoulders, he said the MRI scan is a more reliable examination than the ultrasound, and the findings in August 2008 were consistent with her age, including the mild subacromial spurring. He thought it was unlikely she sustained any significant rotator cuff tear as a result of her employment. He said any putative work-related injuries had long since resolved. He thought she was physically capable of undertaking suitable employment, including light process work. He thought non-organic factors were likely to be an ongoing impediment in respect of her rehabilitation for the foreseeable future. In December 2011, Mr Fraser re-examined the plaintiff and said his previous conclusions were unchanged.
Dr Ross Wilkie
73 On 2 May 2011, Dr Wilkie, consultant radiologist, at the request of the defendant’s insurer, reviewed the radiological investigation in relation to the plaintiff. In relation to the cervical pathology, he said the plaintiff had a small central C3-4 disc herniation, not causing neural compression, with multi-level cervical disc annular bulges typical of disc annular bulges associated with disc degeneration and annular redundancy. He said the changes are regarded as degenerative and not as a consequence of injury or repetitive work-related abnormality. He said there was no significant abnormality to the left shoulder demonstrated radiologically or clinically. In relation to the right shoulder, he said changes of the right supraspinatus bursitis and supraspinatus tendinopathy were demonstrated on 2 September 2008, and subsequently, a small supraspinatus tear was imaged on 25 September 2009. He said bursitis is often due to repetitive activity but need not be work-related and is probably pre-existing. He said the minimal changes seen in the left shoulder on imaging are undoubtedly longstanding and pre-existing. He said the cervical spine pathology is consistent with the natural course of progression of any pre-existing injury. The degenerative change, particularly in the mid to lower cervical spine, is consistent with the worker’s age. He said this also applied with respect to the right shoulder.
Vocational Assessments
74 The defendant relied upon the NES vocational assessment report conducted in March 2009. That report identified suitable employment options as:
·product assembler;
·crossing supervisor;
·sales assistant;
·newspaper and leaflet deliveries;
·factory process worker.
75 The plaintiff’s transferable skills identified were attention to detail, packing, cleaning, works well in a team, quick learner.
76 In December 2010, Ms Katrine Green conducted a vocational assessment at the request of the plaintiff’s solicitor. The purpose of the assessment was to identify alternative or vocational options.
77 Ms Green interviewed the plaintiff and reviewed the medical reports relied upon by the plaintiff in this proceeding. It was her view the plaintiff had a very limited education in a non English speaking country. Her work history was based around low skilled factory process worker jobs. She had limited transferable skills. She was dependent on her physical capacity to perform her duties. The plaintiff had a current driver licence but had not utilised this skill in the workforce and, given that her injury impacts on her driving capacity, it was considered inappropriate to transfer her driving skills to employment such as a courier. Ms Green noted that the plaintiff was computer illiterate, and does not have sedentary skills that would enable her to organise her daily work duties around her current physical tolerances. She has no English language skills. It was Ms Green’s view that the main occupations for which the plaintiff could be considered were: factory process worker, hand packer, product examiner/inspector, quality control – textile industry, kitchen hand and domestic cleaning.
78 Ms Green analysed the above-mentioned occupations and what was involved. In all of the occupations, she concluded that the plaintiff would not be able to perform those occupations from a physical perspective as well as a psychiatric/psychological perspective, and provided reasons.
Video Surveillance
79 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index of the Defendant’s Court Book. I can only conclude that the film did not assist the defendant.
Credit of the plaintiff
80 The plaintiff’s credit was not in issue. Most of the doctors stated that they had difficulty communicating with the plaintiff even with the assistance of an interpreter. The result was that on occasions the histories obtained from the plaintiff were inconsistent. I relied on the history obtained by Dr Luu as he communicated with the plaintiff in Vietnamese and he was her treating general practitioner from August 2009. This is consistent with my observation of the plaintiff in court.
Analysis of the Evidence
Are the injuries work-related?
81 A number of the medical opinions were of limited assistance because they had not been updated. In considering the consequences of the plaintiff’s impairments, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions. In this case, the reports of Mr Brearley, Dr Luu, Dr Fraser and Dr Wilkie. A number of the medical reports did not address the issue of whether the injuries are work-related.
Psychiatric Injury
82 The plaintiff’s psychiatric injury was variously described by doctors. Dr Luu said she suffered a Chronic Pain Syndrome with Stress, Anxiety and Depression secondary to the shoulder and neck condition. Ms Nguyen described it as Depression. Mr Wilks and Dr Grant said the plaintiff suffered an Adjustment Disorder with Depressed Mood secondary to her physical injury. Dr Fraser said she had a Chronic Pain Syndrome.
83 While a number of the doctors did not specifically consider whether the plaintiff’s psychological condition was work-related, the psychiatrists and psychologist, among others, accepted the condition was secondary to her physical conditions. Her general practitioner, Dr Luu, said her psychiatric condition was work-related. Accordingly, I accept the plaintiff’s psychological condition is work-related.
Physical Injuries
84 There were varying views expressed by the medical witnesses as to whether the physical injuries were work-related. Dr Luu, Mr Dang, Dr Tran and Dr Poppenbeek all accepted that the left and right shoulder injury and the neck injury were work-related. Dr Luu accepted there were constitutional factors affecting the neck injury. Dr Boothby accepted the right shoulder injury was contributed to by her work and said the neck injury was probably not work-related. Dr Boothby said the plaintiff had age-related degenerative changes in her cervical spine. He felt her employment would only have caused temporary symptomatic aggravation which would have ceased when she finished work. In relation to her shoulders, he said any putative work-related injuries had long since resolved. Other doctors did not express a view as to whether the physical injuries were work-related.
85 In addition to the medical reports, there are two other factors that I can take into account when considering whether the plaintiff’s injuries are work-related. First, the evidence was that the employer was paying compensation to the plaintiff. In Ansett Australia Ltd v Taylor,[21] Ashley JA said that in cases where liability in relation to a claim was accepted, such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant in a particular case might be able to satisfactorily explain its conduct. In this case, no explanation was provided to the Court. Second, the Medical Panel provided a certificate of opinion on 25 August 2009 and accepted that the plaintiff’s employment was a significant contributing factor to her mild left shoulder rotator cuff dysfunction and an aggravation of her condition of cervical disc degeneration.
[21][2006] VSCA 171
86 Given all the evidence, I accept that the injuries to the left and right shoulders, and the neck injury are work-related.
Bilateral shoulder injury as one body function
87 Counsel for the defendant submitted that it did not accept that the plaintiff can aggregate her bilateral shoulders as one body function. Counsel relied upon the decision of Judge Davis in Ilievski v Ilievski Pty Ltd & Anor.[22] Judge Davis said, at paragraph [28]:
[22][2010] VCC 1623
“Aggregation of bilateral shoulder impairments is only permissible if the injuries arise out of the same relevant incident and if in combination the injuries affect the one body function.[23] Some judges of this Court have previously permitted the aggregation of bilateral hand injuries on the basis that in combination they impair the body’s function in manual activity.[24]
[23]Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65
[24]See for example Wright v Mount Edisar Pty Ltd [2006] VCC 410 and Guiliano v Red Robin Pty Ltd & Anor [2008] VCC 1805
At paragraph [33], she said:
“The plaintiff’s case concerned injury to each shoulder alleged to have arisen during the course of employment with the defendant but not alleged to have arisen from specific incidents. I acknowledge that the work of a truck driver is performed using both arms in combination. However, I consider that the relevant impairment in the case of each upper limb is to the function of each other limb and that, on the authorities, it appropriate to consider the impairment of each upper limb separately.”
88 The submission of the defendant was that in this case, the plaintiff’s injury to each shoulder is alleged to have arisen during the course of employment with the defendant and not from a specific incident.
89 The evidence is that the plaintiff first consulted her general practitioner in October 2006 complaining of a painful right shoulder as a result of her work with the defendant. She was prescribed Celebrex and did not seek further treatment at that time. On 12 September 2007, she attended Dr Boothby’s clinic (the company doctor) complaining of right shoulder pain which started acutely at work. She was prescribed anti-inflammatory treatment, referred for physiotherapy and advised to work restricted duties. At that time she also consulted her general practitioner, Dr Tran, in respect to both shoulders. By 30 October 2007, she was complaining of bilateral shoulder pain to both Dr Boothby and her general practitioner. She was provided with analgesic and anti-inflammatory medication.
90 I accept that the medical evidence supports the fact that the plaintiff consistently complained to doctors of injury to both shoulders, mainly on the right and, to a lesser extent, on the left, from about September 2007.
91 Counsel for the plaintiff submitted that the use of both shoulders may be regarded as a single body function, and relied upon Lakic v GB Galvanizing Service Pty Ltd & Anor.[25] Judge Gebhardt said the loss of use of two hands maybe regarded as a single body function. He said:
“Manual activity is inter-related: each hand depends on the other hand. I believe as a matter of commonsense and practical assessment, the two hands equal one injury, only compound the seriousness of such.”
[25][2001] VCC, 21 November 2001 per Judge Gebhardt. See also Judge Anderson in Wright v Mount Edisar [2006] VCC 410, Judge Jenkins in Karovska v Parker Williams Pty Ltd [2008] VCC 1476, Judge Bourke in Ristovska v Voa Webco Pty Ltd No 1 [2010] VCC 152, Judge Misso in Guiliano v Red Robin Pty Ltd & Anor [2008] VCC 1805, and Judge Lawson in Raimondo v Hoi Yeung Pty Ltd (trading as Oceanic Food) [2005] VCC 1400
92 In this case, the plaintiff’s injury to both shoulders arose in the same work process during the same period and where the plaintiff used both shoulders in manual work. I accept that the injury the plaintiff sustained to her shoulders was to a single body function: namely, her capacity to work in a job that required the use of both shoulders in combination.
93 However, in the event that I am wrong in deciding to consider both shoulders as one body function, I will also consider the right shoulder alone.
Section 134AB(38)
94 The Court must examine the consequences of a physical impairment and mental or behavioural disturbance in the separate context of:
(a)pain and suffering; or
(b)loss of earning capacity.
95 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[26] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[27] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[28]
[26]Section 134AB(38)(b), (c) and (d)
[27]Section 134AB(38)(e), (f) and (g) of the Act
[28]Advanced Wire and Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
96 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff in respect to each of the plaintiff’s injuries: namely, psychiatric injury, the shoulder injury, right shoulder and neck injury.
Psychiatric injury
97 In relation to the plaintiff’s psychiatric injury, the current medical evidence was that of Dr Luu and Dr Fraser, neither of whom are psychiatrists or psychologist. Dr Fraser said the plaintiff had a Chronic Pain Syndrome due to non-organic factors of a psychosocial nature. He said non-organic factors are contributing to her symptoms and signs and consequently it is unlikely that there will be significant changes for the foreseeable future.
98 In cross examination, Dr Luu, the plaintiff’s general practitioner, said the plaintiff had received treatment from a psychologist and she needed to be reviewed by a psychiatrist as her psychiatric issues were getting worse. He had not prescribed antidepressants as he did not believe that she needed such medication. He assessed the non-organic factors as contributing 10 per cent to her incapacity for employment.
99 Dr Brearley examined the plaintiff in March 2012 and made no reference to non-organic factors contributing to her organic symptoms.
100 Whilst there were reports from psychologists and a psychiatrist relating to the plaintiff’s medical condition, none of them were current. Based on the evidence, I accept the plaintiff has suffered a mental or behavioural condition. However, I am not satisfied that the consequences are severe.
101 Based on Dr Luu’s evidence that the non-organic factors are contributing 10 per cent to her incapacity, I am not satisfied that she has established the narrative test for loss of earning capacity. It cannot be said that the loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders can be fairly described as being more that serious, to the extent of being severe.
102 The plaintiff has received minimal treatment for her mental or behaviour disturbances and has not been prescribed antidepressant medication. Consequently, I am not satisfied that the plaintiff’s mental or behavioural consequences constitute a permanent severe mental behaviour or disturbance in relation to pain and suffering. The consequences can not be described as “serious” to the extent of being “severe” when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be.
Physical injuries
103 The current medical evidence in relation to the plaintiff’s neck and shoulders was that of Dr Luu, Mr Brearley, Dr Fraser and Dr Wilkie. The medical evidence is that there has been an aggravation or acceleration of a pre-existing condition in the neck. Some of the medical opinions accepted that there was some degeneration in the right shoulder and the left shoulder.[29]
[29]Dr Boothby, Dr Poppenbeek, Dr Wilkie
104 The Court must consider what the evidence discloses as to the prior condition of the worker and determine whether the additional impairment resulting was serious. In Petkovski v Galletti,[30] the Full Court said that a comparison must be made of the condition of the applicant immediately before the accident with her condition thereafter and an assessment made of the extent of the additional impairment.
[30][1994] 1 VR 436
105 I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after September 2007 was serious.[31] The evidence is that in June 2006, the plaintiff underwent a pre-employment medical examination. I can infer that at that time she had no complaint with respect to her neck, right and left shoulders. The plaintiff complained to Dr Tran in October 2006 of a painful right shoulder, for which she was prescribed an anti-inflammatory medication. The evidence is that the plaintiff was performing her normal duties as a machine operator and production line worker.
[31]Petkovski v Galletti [1994] VR 436
106 In September 2007, she complained of pain in her right and left shoulders and neck. She received anti-inflammatory medication and physiotherapy treatment. She had periods off work. She was placed on light duties and continued to work. She underwent cortisone injections into her shoulders. The plaintiff continued with light duties until the beginning of 2009. She said her work was terminated because she was unable to cope with the light duties that she was given. She has not returned to work. The evidence of Dr Luu is that she can no longer work because of her neck injury alone, her left and right shoulders treated as one body function, and her right shoulder alone. There was no evidence presented as to the likely progression of the plaintiff’s pre-existing condition, had the injury not occurred.
107 I accept that the plaintiff became symptomatic in relation to her neck injury, both shoulders taken as one injury and right shoulder injury alone because of her work.
108 The current medical evidence expressed by Dr Luu and Mr Brearley is that the plaintiff has no current work capacity, which is likely to continue for the foreseeable future. In March 2012, Mr Brearley said the plaintiff had no current work capacity –
“as a result of the ongoing neck pain and the stiffness of her shoulders and limitation and use of both arms.”
109 He said her work capacity will remain as it is at the present time for the foreseeable future.
110 In re-examination, Dr Luu said, looking at the neck alone, the right shoulder alone and both shoulders as one injury alone, and stripping aside or leaving aside any psychiatric or psychological incapacity, in respect to each of the above injuries, she had no capacity for work.
111 Dr Fraser was the only other doctor to express a current view as to the plaintiff’s capacity to work. He did not accept she had an ongoing work-related injury. He said she had age-related degenerative changes involving the spine and shoulders. He said she was physically fit for light work not requiring heavy lifting (greater than five kilograms) or any rapidly repetitive, overhead or forceful use of the arms.
112 I do not consider that the plaintiff could perform the jobs identified in the vocational assessment of Workstream: namely, product assembler, crossing supervisor, sales assistant, newspaper and leaflet deliveries and factory process worker. I accept that the plaintiff could not perform the roles of crossing supervisor or sales assistant because of her poor English skills. The vocational evidence of Ms Green was that the plaintiff could not perform factory process work because that work can be heavy, constant and repetitive and imposes physical demands. Ms Green said that the plaintiff’s physical tolerances would mean that she is not suitable for this form of work. Ms Green did not consider the plaintiff would be suitable to perform the occupation of a hand packer given her current physical tolerances and the medical opinions.
113 The defendant suggested that the plaintiff would be able to perform leaflet and newspaper deliveries. Such work involves collecting the leaflets or newspapers from a collection point and delivering them to homes in a specified area. In cross-examination, Dr Luu said such work would not be viable employment because of the level of pain the plaintiff suffers. Given the plaintiff’s physique – the evidence was she weighed 49 kilograms – I was not satisfied that she would be able to perform such a task.
114 I am influenced by the view expressed by Dr Luu as he conversed with the plaintiff in the Vietnamese language and has treated her on a regular basis since 2009. Relying on Dr Luu’s evidence, I accept that the plaintiff has no current earning capacity, which will continue into the future in respect to the left and right shoulder as one body function, her right shoulder alone and her neck injury.
115 The plaintiff is aged fifty-one. Since arriving in Australia, she has performed manual work. She had limited education in a non English speaking country. She has not undertaken any formal vocational education. Her work history is low skilled factory process. She has limited transferable skills and is dependent on her physical capacity to perform her duties. The plaintiff expressed to doctors and to the Court that she was keen to work. She said she liked her job and did not like being dependent on unemployment benefits. The evidence is that she has not returned to work. I am satisfied that the plaintiff cannot return to work. I accept that her inability to return to work represents a significant loss to the plaintiff, with respect to her enjoyment of life and self-esteem.
116 I am satisfied that it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being more than significant or marked and properly described as considerable when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching this finding I have made a comparison with other cases in the range of possible impairment. I am satisfied that the plaintiff’s injuries are permanent, given the medical evidence, and that it has continued since 2007.
117 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
118 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
119 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and
(ii) “after injury earnings”.
120 The “without injury” earnings must be calculated by reference to the six-year period specified in s.134AB(38)(f).
121 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion, had the injury not occurred. It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
122 The plaintiff carries the onus of proof in relation to economic loss and particularly, in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[32]
[32](supra) at paragraph [70]
123 Relying on the evidence of Dr Luu and Mr Brearley, the plaintiff cannot return to work because of her physical injuries of the neck alone, both shoulders as one body function, and right shoulder alone. Her incapacity is permanent.
124 I am also required to consider issues of retraining and rehabilitation pursuant to sub-Section (g) of the Act. None of the medical reports suggested that further rehabilitation would alter the plaintiff’s position with respect to work capacity. Given the plaintiff’s limited education and her almost complete lack of English speaking skills, I accept that retraining would be difficult. I am satisfied that the plaintiff has no prospect of retraining and rehabilitation that will enhance her earning capacity.
125 Based on the plaintiff’s presentation in Court, her age, her physique and the views expressed by both medical and vocational evidence, I am satisfied that the plaintiff has suffered a total loss of earning capacity. I think it highly unlikely that the plaintiff would be able to return to work as a result of the injury to her left and right shoulders alone, the right shoulder alone, and the neck injury alone. Despite the plaintiff’s frank admission that she would like to work, I think the plaintiff’s capacity to do “light work” is theoretical only. I do not consider that retraining and rehabilitation will alter the situation. Accordingly, I am satisfied that she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
126 Therefore, I am satisfied that the plaintiff satisfies the 40 per cent requirement and has sustained an injury within the meaning of s.134AB of the Act to her left and right shoulders as one body function, her right shoulder alone and her neck injury alone. Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of the employment with the defendant after October 1999 in respect to her left and right shoulders as one injury, the neck injury alone, or right shoulder alone.
127 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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