Nguyen v Ford Motor Company of Australia

[2016] VCC 1501

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-16-01390

HANG NGUYEN	Plaintiff
v
FORD MOTOR COMPANY OF AUSTRALIA	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 and 28 September 2016
DATE OF JUDGMENT:	13 October 2016
CASE MAY BE CITED AS:	Nguyen v Ford Motor Company of Australia
MEDIUM NEUTRAL CITATION:	[2016] VCC 1501

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment to the upper right limb, right shoulder and cervical spine – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Georgopoulos v Silaforts Painting Pty Ltd [2012] 37 VR 232; Raimondo v Hoi Yeung Pty Ltd (trading as Oceanic Food) [2005] VCC 1400; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805; Wright v Mount Edisar [2006] VCC 410; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Target Australia Pty Ltd v Moloney [2000] VSCA 124; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                 Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin QC with Ms J Frederico	Maurice Blackburn
For the Defendant	Mr P Elliott QC with Ms M Fitzgerald	Thompson Geer

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from 2009 until November 2010.

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The body function relied upon in this application is the upper right limb, encompassing the right shoulder and cervical spine.  In the alternative, separate applications were brought in relation to the right shoulder and cervical spine.

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s134AB(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked, and as being at least very considerable”.

9       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

11      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

12      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

13      Subsection (38)(h) provides consequences which are psychologically based to be wholly disregarded in paragraph (a) cases.

14      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

15      The plaintiff relied upon two affidavits and gave viva voce evidence.  She was cross-examined.  The plaintiff also relied on an affidavit of her husband, Voung Nguyen, sworn 14 September 2016.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

16      The plaintiff is aged fifty-five, having been born in October 1965 in Vietnam.  She is married with two sons aged twelve and ten.

17      The plaintiff was educated to Year 7 in Vietnam and then worked as a seamstress for eighteen months.  In 1987, she came to Australia at the age of twenty-one as a refugee.  She worked for four years as a process worker in a shoe factory, then for ten years in various sewing jobs and as a process worker in a biscuit factory.

18      The only training the plaintiff has undertaken since leaving school at the age of twelve was a course to make trousers.[3]  

[3]Transcript (“T”) 2; 62

19      On 8 July 2002, the plaintiff commenced employment with the defendant as a sewing machinist, sewing seats.  From June 2008, she plaintiff worked as a vehicle builder on the E265 machine, assembling doors (“the machine”).

20      When she was working full time on this machine, the plaintiff finished her shift at midnight.  In addition to her work duties, she was required to look after her children, drive them to and from school and run the household.  She agreed she was pretty busy with these tasks.[4]

[4]T39

21      The plaintiff’s job on the machine involved repetitive lifting above shoulder height, and twisting, and she was frequently required to hold her head in a fixed position while bent.

22      Soon after starting this work, the plaintiff began to experience pain in her neck and right shoulder.  She is short in stature and was required to reach above shoulder height repetitively, handling doorframes weighing about five kilograms.

23      The plaintiff’s symptoms worsened.  She missed some time from work and then returned to duties.  She was required to seek medical attention from her general practitioner, Dr Phan.  Her symptoms recurred.

24      Dr Phan arranged for some x-rays, which the plaintiff was advised showed a tendon injury in the right shoulder.  The plaintiff was prescribed medication and referred for physiotherapy.  She was also given injections in her shoulder which only gave short-term relief.

Return to work

25      From October 2009 until she last worked in November 2010, attempts were made to provide the plaintiff with suitable employment.  She would only be able to do these duties for a couple of weeks before the symptoms caused her to stop work.  She has never returned to full-time work.[5]

[5]T30

26      The plaintiff understood she had a neck condition as well as a problem with her right shoulder.  Pain in both those areas ultimately forced her to stop working in late 2010.

27      The plaintiff could remember Dr Ho talking to her about work in 2010 but she was not present at the work site assessment.[6]  She could also recall undergoing physiological testing in March 2010 but could not recall what weights she was able to lift over what distance.[7]

[6]T30

[7]T50

28      On her initial return to work after initial injury, the plaintiff could remember doing some welding work at Plant No 2.  She picked up some parts – light nuts and bolts – that had been brought to her in a box, put them in the machine and pressed the button.  The welding was done by the machine.[8] 

[8]T31

29      The plaintiff coped with that job, which she did with her left hand only.  However, she was told there were too many people doing the job so she had to be transferred.[9] 

[9]T33

30      The plaintiff was not able to cope with the new job, which required use of both hands, pushing buttons on either side of a machine.  After only a couple of hours, she experienced very bad pain.[10]

[10]T35

31      The plaintiff could not remember exactly what happened leading up to her finishing work with the defendant but she thought as she could not cope with the job, she asked to resign and stop working.[11]

[11]T39

32      From November 2010, the plaintiff just stayed home and looked after her children.  There was then an announcement about redundancies for which she willingly applied.   At the time she stopped work in November 2010, she had very bad pain, and from time to time, she could not drive her car at all.[12]

[12]T40

33      In late 2010, the plaintiff went to Saigon on a pre-planned trip to visit her husband’s mother, who was ill.  Her mother-in-law passed away when she was there.[13]

[13]T41

34      While in Vietnam, the plaintiff’s shoulder felt it was getting a little bit better.  She saw Mr Hooper on her return because she had more pain.  After driving and other activities, her shoulder was very painful.[14]

[14]T60

35      The plaintiff has not returned to any employment since November 2010.  Having regard to her limited English and restrictions, the fact she cannot use her right arm on a consistent basis or lift any heavy weights, and that she finds it hard to look up and down because of her neck pain, the plaintiff does not know what work she could do.

36      In cross examination, it was suggested to the plaintiff she did not really try with the duties provided on her return to work.  She explained she became very upset as the job the defendant set up for her required the use of two hands and that caused her more pain. Sometimes, her husband or her sister had to come and pick her up and take her home from work because she was in so much pain and crying.[15]

[15]T52

37      The plaintiff does not know at the moment whether she could do the “one button” job because she has not tried.[16]

[16]T53

38      The plaintiff did not think she could do sewing piecework because of her arm pain.  She can no longer stretch fabric or twist or turn because of this pain.  Whilst she can lift things with her arm, she cannot lift heavy things. It would be difficult doing sewing work at home.[17] 

[17]T43

39      The plaintiff travelled to Canada in 2013 for a family reunion.  When she returned, she looked in the newspaper for a sewing job but she did not apply for any positions.  A long time ago, she had a machine at home but no longer does so.[18]

[18]T42

40      The plaintiff experiences pain just from doing the family ironing.  She did not think she could iron multiple baskets of clothes left at her house by clients.[19]

[19]T53

41      The plaintiff posed the question: 

“Who is going to employ one person with injury working for half an hour and then one hour and then leave it there or go for a walk or do not like, do not do a good performance for the job.”[20]

(sic)

[20]T54

42      The plaintiff did not think she could manage to carry a basket of ironing.[21]  She would not be able to do bulk ironing as it was a repetitive task.  She did not think she would be able to hang clothes out on hangers and then take them back to a client.[22]

[21]T56

[22]T56

43      The plaintiff sometimes uses the computer at home.  She looks on YouTube and watches the news.  Her children have set up Mario games for her but when she plays, when looking down at the screen to play, her neck starts to hurt after a short time.[23]

[23]T62

44      The plaintiff does not know how to do emails and other things.  She has not thought about doing a computer course and she does not know whether she could manage it or not.  She does not have the confidence to go out and learn.[24]

[24]T47

45      The plaintiff continues to be restricted in her flower arranging activities and she feels isolated at home.

46      The plaintiff can speak some English and can understand some words.  When she goes to the supermarket, she speaks a little bit of English.  She does not know whether she is understood or not.  She has done an English course but does not know whether she could cope doing a further course as she did not know “whether [her] brain was working or not” but she would try.[25]

[25]T46

47      In re-examination, the plaintiff was asked questions in English and gave rather confused answers as to what time and how she got to Court.  Her speaking voice in English was not clear and she appeared not to understand some of the questions asked by her counsel.

48      The plaintiff did voluntary work at her children’s school a long time ago when they were in prep or grade 1.  The work involved giving children new books.[26] She wants to help out now at their school but she does not know about her English or what jobs she would be able to do.[27]

[26]T58

[27]T47

49      In her first affidavit, sworn in September 2015, the plaintiff described becoming short tempered because of her pain and inability to work.  There was no relief from either her neck or shoulder pain, and she was also frustrated that she could not continue working.   She had become quite depressed and was referred to Sandra Nguyen, a psychologist, whom she first saw in August 2010.  That counselling was helpful, although the plaintiff remained sad, irritable and depressed.

50      The plaintiff continues to feel emotionally down at times.  She becomes distressed if she is put under pressure and her coping skills are not what they were.  She continues to see Ms Nguyen, who has advised her that she no longer needs to see her regularly and to come back if she feels the need.  The plaintiff saw her about three times in 2016.  Ms Nguyen has also provided the plaintiff with psychological support to help her cope with her mother’s dementia and her concerns about her father’s health.

51      Dr Phan referred the plaintiff to Dr Thomas in March 2010, who tried to help her with her neck and shoulder pain.  He tried a variety of medications, including Neurontin and Lyrica, but she found it difficult to take that medication which caused her to have an indigestion-type pain.  She did not seem to have benefitted from painkillers and, as at September 2015, she took Celebrex, Somac, Naprosyn and Panadol Osteo.  She tried to take as little medication as she could and only used it when the pain was extreme – about two or three times a week.

52      In late 2015, the plaintiff was no longer having psychological treatment, physiotherapy or pool therapy, as funding had been ceased.  She received benefit from psychological treatment as well as physiotherapy and would have continued such treatment had she been able to afford it.

53      The plaintiff was referred to the Rheumatology Department at St Vincent’s Hospital in August 2014, where she was advised she had degeneration in her neck as well as tendon damage to the right shoulder. 

54      The plaintiff was referred to Allied Health, who instituted a course of physiotherapy and hydrotherapy. She was again reviewed at St Vincent’s Hospital, Physiotherapy Department, in late June 2015.  Physiotherapy ceased after this review as the plaintiff was not improving.  She was hoping physiotherapy would help improve the range of movement in her right arm.  There were then occasions when she still experienced tingling in her fingers.

55      The plaintiff has recently had physiotherapy at St Vincent’s but it is not helping.[28]  She has not been given exercises at St Vincent’s but continues to do the stretching exercises previously suggested by her physiotherapist.[29]  She does not often use the TheraBands suggested by St Vincent’s, as doing so causes her pain.[30]

[28]T24

[29]T26

[30]T61

56      The plaintiff attends Dr Phan on an “as needs” basis every few months or if the pain becomes particularly bad.  He continues to prescribe Celebrex.[31]

[31]T52

57      The plaintiff had an MRI scan of her neck in February 2016 which she was advised showed problems at C5 and C6.  In March 2016, she had an injection in her right shoulder at the St Vincent’s Rheumatology Clinic.

58      In her first affidavit, the plaintiff described how her pain limited her shoulder and right arm movement and affected her grip, and she had difficulty in handling pots and pans.  She was limited with repetitive chopping of food with her right hand.  Her husband assisted with housework and handling heavy pans.  Any activity that involved stretching her right arm seemed to aggravate her pain.

59      The plaintiff believed she could not be employed, although she would much prefer to be working.

60      In addition to the pain which limited her movements, the plaintiff also had headaches and poor concentration.  There was very little she could read in English.  Even watching television, she had difficulty understanding the programs.

61      The plaintiff continues to have difficulty sleeping, only sleeping for a short while. She does want to take medication.  It takes her some time to get to sleep. She usually wakes up about 2.00 or 3.00 am and then finds it very hard to get back to sleep.  She is still unable to sleep on her right side and sometimes is woken by pain when she turns over in her sleep.  As a result of her poor sleep, she is tired during the day.

62      In her first affidavit, the plaintiff described her children being at an age when they were noisy and demanding and she often had to leave parenting duties to her husband.  The plaintiff’s children resented her inability to participate in activities with them. 

63      Driving was difficult, with the plaintiff using her right hand at the top of the steering wheel.  She also had difficulty steering, and parking was difficult because she had to twist her neck.

64      The plaintiff continues to drive, but doing so aggravates her right shoulder pain.  She also has difficulty turning her head because of her restricted neck movement, and turning aggravates her pain.  She can move her neck but has to take precautions when she does so.  Turning to the left is okay.  She has a problem and it is very limited turning to the right.[32]

[32]T24

65      The plaintiff drives to the shopping centre. Sometimes she cannot reverse or move her neck.  She has good and bad days.[33]  When she drives, she puts her right arm on the armrest.[34]

[33]T24

[34]T43

66      The plaintiff is right-hand dominant.  She has learned to rely on her left hand as much as she can.   As a result, her left shoulder becomes painful at times.  She can carry her handbag over her left shoulder.

67      When she goes shopping, the plaintiff avoids picking up items from the shelves that are above head height.  She generally takes longer to do the shopping than she would have prior to her injury because she restricts repetitive activities.  Pushing or pulling shopping trolleys usually causes her neck and shoulder pain.

68      The plaintiff can walk for about half an hour before her neck pain increases and her right shoulder feels heavy and she needs to rest.

69      The plaintiff has some difficulty with self care.  She has problems using her right arm above shoulder height to wash her hair and she has to do so slowly and is slow to get dressed.  She has difficulty putting on jumpers and t-shirts.[35]

[35]T56

70      In her first affidavit, the plaintiff described how since her injury, her relationship with her husband had deteriorated.  She had lost interest in social engagements and avoided going out when possible.  She no longer saw some friends.  She had no urge for sexual activity and she also found it extremely difficult to adopt a comfortable position.  That had caused her husband some distress and she felt sorry that she could not be a better wife.

71      The plaintiff then continued to feel sad, depressed and lonely.  She did not enjoy her family and saw herself as being a burden to them.  She was a devoted mother and wife and did not believe she was fulfilling her responsibilities.  She would have loved to return to work and make a financial contribution to her family. 

72      In her recent affidavit, sworn in September 2016, the plaintiff described continuing daily neck pain which is worse in cold weather.  She has good and bad days.  On a bad day, the pain is severe and she would rate it at about ten out of ten.  On a good day, it is about two out of ten.  Her range of neck movement is restricted.  She has pain particularly when she turns her head to the right and she gets headaches, which she believes are related to her neck pain.

73      The plaintiff continues to suffer constant right shoulder pain.  Although she has some movement, her right shoulder is restricted.  Any use of her right arm causes pain in the right shoulder which radiates down her arm and into her elbow.  She has difficulty lifting any weights with her right arm and it is weaker than her left.

74      In the witness box, the plaintiff pointed to the muscle in the top of her right shoulder as being the site of her shoulder and neck pain.  Sometimes she has less pain and sometimes she has bad pains.[36]

[36]T16

75      The plaintiff also has pain on the right side of her neck, down from her ear.  Whenever she moves her neck, she experiences bad pain.  She agreed that when she moved her neck in the witness box to speak to the interpreter who was sitting on her right, she swivelled her chair to do so, rather than turning her head. [37]

[37]T17

76      In cross examination, the plaintiff initially denied any problems with her right wrist and elbow, either in the past or related to work.  However, she did not have strength in her right hand grip.[38]  The plaintiff then agreed that she complained to Mr Jones in 2016 of weakness in her wrist and elbow, and diminished power of grip.[39]

[38]T19

[39]T20

77      The plaintiff also agreed that she had complained at times of numbness down the whole right side of her body.[40]  She could not remember specifically doing so when she saw Mr Jones in March 2012.   Sometimes the plaintiff’s pain can go down her right side to her leg.[41]

[40]T22

[41]T23

78      The plaintiff becomes stressed if put under pressure.  She tries to control her feelings when she becomes overwhelmed, by going out in the garden and looking at the flowers or going for a walk.  She has lost interest in lots of things and prefers just to stay at home rather than go out.  She is forgetful and her concentration is reduced, and her mood continues to put a strain on her family relationships.

79      The plaintiff is able to do light housework and does the cooking and the shopping.  She is unable to do activities above shoulder height.  Usually, her husband or one of the boys hangs the washing out for her.[42]  Otherwise, she does it with one hand.  Her husband lifts the heavy pots for cooking as she still has reduced grip strength.

[42]T48

80      The plaintiff would love to be able to do all the housework and the cooking but she cannot, because it causes pain.  If she does these activities she feels terrible for the next few days because of the pain, which runs from her neck to her shoulder to her ribcage.[43] 

[43]T55

81      The plaintiff could not remember telling Joanna Bryant earlier this year that she had no restrictions with sitting, standing, walking, bending and twisting.  She did the housework.[44]  She prepares the meals for the family, goes shopping and drives to shopping.  She does not do all the housework but does most of it.

[44]T45

82      The plaintiff takes her children to soccer and enjoys watching them play.[45]  She continues to pick them up from school and then prepares dinner when they arrive home.  When friends come over for dinner, the plaintiff normally gets take-away food.[46]

[45]T28

[46]T46

83      The plaintiff goes to Mass four days a week (Wednesday, Thursday, Friday and Saturday). Her brother is not the priest at her church. She has not seen him for a long time.[47]  The plaintiff is not involved in any parish social activities nor does she sing in the choir.[48]

[47]T57

[48]T29

84      Other than looking after the children and doing some shopping, the plaintiff spends a lot of her time watching the television, reading and watering her orchids. 

85      The plaintiff’s mother has dementia and the plaintiff sees her once every week or sometimes once every fortnight.[49]

[49]T28

86      The plaintiff confirmed she owned a property before she was married and her husband had his own house.  Her brother stopped living at her property in about 2003 and since then it has been rented to overseas students.  The plaintiff first received rent from that mortgaged property in June this year.  Before that, the rent went into her husband’s account.[50]

[50]T61

Lay evidence

87      The plaintiff’s husband, Voung Nguyen, swore an affidavit on 14 September 2016.  He is employed as an IT officer with the Australian Bureau of Statistics. They have been married for fifteen years.

88      Prior to her injury, the plaintiff was active and involved in the Vietnamese community, including being a member of the church choir. 

89      After John (who is now twelve) was born, the plaintiff returned to work when he was nine or ten months old on a full-time basis.  She once again returned to full-time work after their second son, Hoang Trung (who is now ten), was nine or ten months old.  The children were looked after by the plaintiff’s sister and mother when they were babies.

90      Before her injury, the plaintiff was a hard worker who contributed financially to the family.  They had an active social life and were working towards the common goal of building a future for their sons. 

91      The plaintiff is now the opposite of what she used to be.  Her injuries have affected every aspect of her life, and their relationship has been significantly impacted.  Their social life has been adversely impacted, as the plaintiff wants to stay at home and not go out anymore.  For example he suggested they go on family holidays but the plaintiff will not go most of the time.

92      About three years ago, he went with the plaintiff went to the United States.  It is very rare for him to get the plaintiff away since her injury, as she was not interested and had lost the ability to enjoy life.  All she wanted to do was stay at home and they had not been away as a family for a long time.  Recently, he booked a trip to Vietnam.   Although the plaintiff said she did not want to go, he was hopeful that he could persuade her to do so. 

93      The plaintiff is very physically restricted as a result of her injuries.  He continues to do a lot of the housework, particularly the heavier tasks.  He hangs out the clothes and helps her with heavier pots when she is cooking.  He now does the gardening and mowing.  He has noticed the plaintiff is very slow to do things now, such as getting dressed in the morning.

94      Mr Nguyen tries to help the plaintiff, but she is not the same person she used to be.  If he says something to her, she gets upset.  Because he does not want the boys to hear any friction, he tries to minimise any arguments, but he is unable to talk to the plaintiff about things like he used to. 

Medical evidence

The Plaintiff’s treaters

95      Dr Phan, from Le Phan Medical Centre in Footscray, provided a number of reports, the most recent dated 4 September 2016.

96      In his first report of January 2010, Dr Phan stated that he thought it was inappropriate for the plaintiff to work on the machine because the size and height caused severe pain to the upper shoulder/upper back and with restricted movement of the right shoulder.

97      Dr Phan then thought the plaintiff had two problems related to her work.  Her current pain and restricted shoulder movements were definitely related to her recent injury on the machine, and the latest ultrasound demonstrated both bursitis and bursal impingement, “which may involve more steroid? injection or hydrodilatation”. 

98      The plaintiff also had “ongoing upper back pain (over the rhomboid)? need rehabilitation”.  It may be an underlying repetitive strain problem from many years of working on sewing machines at Ford and recently brought to light by her recent injury on the E265 job. 

99      Dr Phan noted he had referred the plaintiff to Dr Thomas for treatment and rehabilitation.

100     As of April 2011, Dr Phan thought the plaintiff had very little capacity for work and light duties available at work were unable to accommodate her limited capacity.  He thought the plaintiff’s prognosis was poor and he did not see any future treatment options that may promise an optimistic outcome.

101     In February 2013, Dr Phan reported that the plaintiff’s symptoms and signs were suggestive of significant musculoskeletal pain, in particular, the chronic pain related to the rhomboid muscles’ region.  He thought the plaintiff’s symptoms and signs were genuine and he had no further treatment to recommend for her chronic pain and disability, and it was likely that would continue for years to come.

102     From March 2013, Dr Phan saw the plaintiff was seen on seven further occasions until May 2015 relating to a right shoulder/upper back disability. During that time, there had been no further improvement.

103     Dr Phan thought, clinically, the plaintiff still had significant musculoskeletal pain, in particular, chronic pain related to the rhomboid muscles’ region.  Treatment since 2015 had been continuing use of medications including Celebrex, Lyrica, Panadeine Forte initially and, more recently, Naprosyn SR1000.  He referred the plaintiff to a rheumatologist at St Vincent’s Hospital, where she had a further steroid injection in the right shoulder on 2 February 2015.  However, she had little improvement overall.

104     In September 2016, Dr Phan reported that the plaintiff has ongoing persistent disability pain of the upper back and shoulder and has been incapacitated by this for the last few years.  He believed she had no physical capacity to perform normal vocational work.

105     Dr Phan thought the plaintiff’s physical condition and disability had an important effect on her psychological health, but this psychological condition was not the primary reason why she was incapable of vocational work.

106     Sandra Nguyen, psychologist, first saw the plaintiff on 21 August 2010 on referral through the Better Access to Mental Health Scheme under Medicare.

107     Ms Nguyen noted the injury and the plaintiff’s subsequent attempts to return to work until ceasing work in November 2010.

108     Ms Nguyen thought the plaintiff fitted the criteria of an Adjustment Disorder with Mixed Anxiety and Depression, suffering from a depressed mood most of the day, nearly every day.

109     Ms Nguyen thought, psychologically, the plaintiff was fit to return to part-time work and that she struggled to maintain concentration for long periods of time and was struggling to cope with the changes in her life as a result of her injuries.  Ongoing counselling was suggested.

110     In Ms Nguyen’s report of 23 February 2012, she concluded that, from a psychological perspective, the plaintiff was working very hard to address the issues that influenced her Adjustment Disorder with Mixed Anxiety and Depression.  She did not think the plaintiff’s psychological condition had then stabilised and it was difficult to comment on long-term progress. 

111     Ms Nguyen most recently reported in August 2016.  She noted the plaintiff made appointments in 2016 only when she needed to and had been seen on three occasions that year with no further appointments scheduled. 

112     Ms Nguyen noted counselling initially focused on the plaintiff’s anxiety and depression as a result of the work injury and her difficulty managing her pain and restricted mobility.  However, over the past year, the focus of sessions had been centred mainly on the plaintiff’s worries about her mother’s ill health rather than her WorkCover injury.

113     The plaintiff was referred to occupational physician, Dr Castle, by her general practitioner and she was first seen on 6 December 2010.

114     The plaintiff told Dr Castle she had pain in her right shoulder and was taking Panadol up to five days a week, having taken Lyrica previously.

115     The plaintiff told Dr Castle she stopped working as she was asked to do a job using two hands.  She did that job for two or three hours and stopped because she was sore and in pain.  She had tried the job before and coped with it for a week and then had to stop because of increased pain.

116     On examination, the plaintiff rated her pain six out of ten on a visual analogue scale.

117     Dr Castle referred the plaintiff for an MRI scan.  When seen on 9 February 2011, the plaintiff advised that while she was away, and not doing anything, her shoulder had improved.  She had a little bit of pain. 

118     The plaintiff was next seen on 28 February 2011.  Dr Castle then explained to her that she needed a steroid injection which was better done by an orthopaedic surgeon, Mr Hooper, to whom she was referred.

119     Dr Castle diagnosed right supraspinatus tendinosis and subacromial bursitis.

120     Dr Castle thought the plaintiff had no capacity for employment because of her right shoulder pain and associated restricted movement.  He thought her future work capacity would depend on her progress as a result of the steroid injection and as a result of surgery, if that was required.  If the injection was unsuccessful, he thought she would need surgery and, if that was unsuccessful, she would have no capacity for work.

121     At age forty-five, Dr Castle would have expected that there was a reasonable prospect of treatment being sufficiently successful to enable the plaintiff to return to work, although probably not for her pre-injury work.  He thought the prognosis was uncertain.

122     Dr Thomas saw the plaintiff on 15 March 2010.  She then complained of constant right shoulder pain and problems sleeping.  She was taking Celebrex and Panadol Osteo.  She indicated the pain was eight out of ten at its worst.  She was working from 5.30am to 12 noon, five days a week on a machine using only her left hand.

123     Dr Thomas thought there was an undifferentiated pain problem which may be neuropathic and he had trouble working out whether the plaintiff had true hyperalgia or not.  He wondered whether there was an injury to the long thoracic nerve, and felt a course of Neurontin was appropriate.

124     On review on 17 May 2010, the plaintiff said her pain had improved.  She was still being certified as unfit to work.

125     Dr Thomas thought the plaintiff’s complaint related to her right shoulder.  It looked like some form of centralised Pain Syndrome with neuropathic-type features rather than a specific shoulder problem.  He thought the precise diagnosis was somewhat obscure, but with the information he had, his diagnosis was more that of a neuropathic-type pain problem with centralised pain features. 

126     Dr Thomas again saw the plaintiff on 7July 2010.  She was then back at work four hours a day, five days a week, but using both arms, and that aggravated the shoulder girdle pain.  She was then taking Neurontin.

127     Dr Thomas suggested the plaintiff needed to do some strengthening of the right shoulder girdle and recommended she see Geoffrey Bell, physiotherapist.  He also suggested the plaintiff try Lyrica and stop Neurontin. 

128     Dr Thomas noted the plaintiff was eager to find one-armed duties at Ford that did not involve using her right upper limb.  He told her that he thought this was likely to be problematic as most manual jobs involved using both hands.

129     When Dr Thomas last saw the plaintiff on 3 November 2010, she reported there did not appear to be any superior benefit from Lyrica and still felt she had not improved the underlying nature of her pain.  Working with both hands, four hours per day, five days per week, tended to aggravate her pain.

130     Dr Thomas accepted the nature of the plaintiff’s problem came on in the course of her work and that work was therefore a significant contributing factor to the onset, and remained a material contributor on each of the times he saw her.  He was not convinced, without the improvement in the plaintiff’s condition, that her ability to work beyond this was likely to eventuate (noting she was working part time).  As such, he thought she had a partial incapacity and that was likely to continue into the foreseeable future. 

131     Dr Thomas thought, overall, that the plaintiff had a permanent partial incapacity.  She required supportive medical treatment in the future and an exercise program was relevant and important to maintain her functional ability.

132     Mr Jonathan Hooper, orthopaedic surgeon, saw the plaintiff on referral from her general practitioner on 8 March 2011. 

133     Mr Hooper noted the MRI scan revealed the rotator cuff was intact but the plaintiff had tendonitis with what was reported as being bursitis.  He injected her subacromial space and encouraged her to continue with exercise. 

134     On review in March 2011, the plaintiff’s shoulder pain persisted.  It was posterior and over the trapezius muscle and into her neck.  Mr Hooper suggested that she persist with physiotherapy but he did not favour any surgery. 

135     Mr Hooper felt the plaintiff should continue with light work and not participate in things that caused her discomfort.  He thought she was capable of light work but should not be given any heavy work that aggravated her shoulder.  The prognosis was guarded.  If her shoulder symptoms persisted, Mr Hooper thought further treatment in terms of hydrodilatation and more aggressive physiotherapy may be indicated.

136     The plaintiff was initially assessed at St Vincent’s Hospital Rheumatology Clinic on 5 August 2014 with neck pain and right shoulder pain.

137     On examination, there was limited right shoulder movement, and the management was deemed along conservative lines with anti inflammatories and ongoing analgesia and a referral to Allied Health.

138     The plaintiff had intensive regular physiotherapy and hydrotherapy at Allied Health.  She was reviewed with an Allied Health follow up on 2 October 2014.  The plaintiff then had improvement in her discomfort but limited improvement in the range of movement in her arms.  Continuing hydrotherapy was suggested.

139     The plaintiff was seen regularly thereafter at the Allied Health Outpatients Department, mainly in the Physiotherapy Clinic for ongoing exercises to try and improve right shoulder mobility and strength.  She had issues with ongoing pain and limitation of shoulder movement, for which she had treatment.

140     When seen in the Rheumatology Outpatients Department on 21 July 2015, ongoing issues were noted and imaging revealed multi-level degenerative disc disease of the cervical spine and also right subacromial bursitis and tendonitis.

141     The plaintiff attended Rheumatology Outpatients at St Vincent’s Hospital on 21 March 2016, complaining of persistent right-sided paraspinal neck and upper back pain. 

142     On examination, there was mild restriction of internal and external rotation of the right shoulder and slightly positive impingement of the right shoulder.  It was noted a right-sided subacromial bursa injection was given to good effect. 

143     A further review was to take place in six months’ time.

Investigations

144     An ultrasound of the plaintiff’s right shoulder was organised by Dr Phan in October 2009.  It was reported no right-sided rotator cuff tendon pathology was seen and no right subacromial bursitis was identified.  It was noted the plaintiff’s symptoms may be due to referred pain from the cervical spine.

145     The plaintiff underwent a right shoulder steroid injection on 12 October 2009.

146     Following a CT scan of the cervical spine in October 2009, it was reported there was mild broad-based posterior annular C5-6 disc prolapse seen without definite nerve root impingement or compression.

147     Dr Chan organised a cervical CT scan on 30 October 2009.  Thereafter, it was reported there were degenerative changes present at multiple levels.  There was no definite nerve root compression identified and no evidence of foraminal stenosis.

148     Following a right shoulder ultrasound organised by Dr Phan in January 2010, it was reported there was mild right subacromial bursitis with bursal impingement.

149     Mr Hooper organised an x-ray of the plaintiff’s cervical spine in March 2011.  It was reported that posterior alignment was maintained with no disc space narrowing.  The facet joints appeared normal, with degenerative changes in a number of the neurocentral joints, with only minor osteophytic encroachment of the intervertebral foramina at C5-6 and on the right at C2-3 and C3-4.

150     Dr Castle organised an MRI scan of the plaintiff’s right shoulder on 12 February 2012.

151     It was reported there was mild to moderate insertional tendinosis of supraspinatus tendon insertion, more marked on its bursal surface, with bursal surface fraying without discrete tear.  There was associated subacromial bursitis and no acromial spur or significant AC joint degenerative change.

152     There was an MRI scan of the cervical spine and right shoulder in July 2014.  In terms of the cervical spine, it was reported there was multi-level degenerative disc disease within the cervical spine as described.  There was mild central canal narrowing at C3-4, C4-5 and C5-6, and there was no underlying cord signal abnormality.

153     Following an MRI scan of the right shoulder, it was reported there was thickened, increased fluid signals seen in the subacromial subdeltoid bursa, which was most in keeping with mild bursitis.  There was no discrete rotator cuff tear and no features to indicate adhesive capsulitis.

154     There was an MRI scan of the cervical spine in February 2016.  It was reported there was minor cervical spondylosis, most marked at C5-6, with a moderate posterior disc protrusion and uncovertebral osteophytosis that moderately effaced the cord, although cord signal was normal.  There was moderate left neural exit foraminal narrowing with possible impingement of the exiting left C6 nerve root.  There was no right-sided neural compression.

Medico-legal evidence

155     The plaintiff was first examined by Mr John O’Brien, orthopaedic surgeon, on 8 August 2011. 

156     The plaintiff then stated that despite ceasing work, she had continued to experience constant neck pain, extending across the upper aspect of the right scapula and the posterior aspect of the right shoulder.  She indicated the pain as being at seven to eight out of ten.

157     The plaintiff was then taking Celebrex.  She was having physiotherapy weekly.

158     Mr O’Brien noted physical signs indicated quite marked restriction of movement, both in the cervical spine and also the right shoulder, the latter predominantly being confined to flexion and abduction.  He thought investigations appeared to show very minor degenerative changes in the cervical spine, with some evidence of rotator cuff tendinopathy and bursitis.

159     Mr O’Brien considered those signs were not totally diagnostic, indeed suggesting that there may be dual pathology in the cervical spine and right shoulder.  He thought the right shoulder signs correlated with the ultrasound and MRI findings, suggesting rotator cuff pathology.

160     Mr O’Brien considered cervical spine investigations; however, these did not demonstrate any major pathology to explain the quite significant restriction of cervical movement.  Thus, he would conclude there existed non-specific cervical pain.

161     Mr O’Brien thought conservative treatment was appropriate and it was reasonable to continue with physical treatment, in addition to use of analgesia.  Unfortunately, the history indicated really chronic pain which would make him very guarded in relation to the long-term prognosis.

162     Mr O’Brien noted the plaintiff described moderate disability associated with the chronic neck and shoulder pain.  He considered that she was indeed incapable of undertaking her normal work and, in fact, even failed with light duties.  Mr O’Brien suggested the plaintiff was totally incapacitated and that there was little likelihood of her returning to any form of gainful employment in the foreseeable future.

163     Mr O’Brien suggested some significant clinical improvement would be necessary before the plaintiff could contemplate a return to work.  In fact, she continued to report marked restriction of her general, social, domestic and recreational activities, and it would seem that situation would continue.

164     On re-examination on 4 October 2011, the plaintiff continued to localise the severe pain to the top of her shoulder over the right scapula.

165     Mr O’Brien noted the signs were indeed not diagnostic of the exact aetiology of the plaintiff’s pain.  As previously indicated, there was some suggestion of cervical aetiology which he would have to define as non-specific cervical pain.  He noted the radiological changes in relation to the right shoulder.  However, the signs were not totally diagnostic of tendinopathy and he was inclined to the proposition of dual pathology.

166     Thus, overall, Mr O’Brien’s opinion basically remained unchanged.  Certainly there was present chronic pain which caused him to remain guarded in terms of the plaintiff’s prognosis.

167     Mr O’Brien noted it was obvious there had been no improvement in the clinical situation since the previous examination.  He would thus conclude the plaintiff remained totally incapacitated, and he would suggest it was highly unlikely that she would, in fact, return to any form of gainful employment.

168     The plaintiff was examined by Mr Garry Grossbard, orthopaedic surgeon, on 4 May 2016.

169     The plaintiff then described pain mainly on the right side of her neck and trapezius area, worse when she turned her head to the right.  The pain was intermittent and worse with activity and it occasionally went to her right elbow.  He felt her shoulder movement was somewhat restricted.

170     On examination, there was tenderness to palpation in the mid cervical area on the right side and the right trapezius muscle.  Neck flexion was reduced to about 75 per cent of normal.  Lateral flexion was 50 per cent, whilst rotation was 60 per cent in each direction.

171     Mr Grossbard thought it was clear from the early radiological studies the shoulder imaging did not reveal a major rotator cuff tear, but suggested a degree of bursitis and tendinitis.  Radiology of the cervical spine confirmed degenerative change, mainly at C5-6 affecting the facet joints, with a minor central disc protrusion at C6-7.

172     Mr Grossbard’s impression was the plaintiff’s major ongoing issue related to her cervical spine and the pain she felt in the shoulder was in fact referred to the trapezius, having its origin in the neck.  He thought the plaintiff’s shoulder moved freely when the scapula was stabilised and there was nothing to suggest a rotator cuff impingement, let alone local tenderness.

173     Mr Grossbard believed the plaintiff’s symptoms had an organic origin in the cervical spine.

174     Mr Grossbard considered the plaintiff should avoid work where she was required to repeatedly or forcefully use her right arm, or where she was required to look up or down for other than very short periods of time.  He believed an exercise program and a degree of physiotherapy to the neck was appropriate. 

175     Mr Grossbard suggested further investigations could include nuclear scanning of the cervical spine.  If a localised area of increased activity was noted on the right, he thought that may indicate the degree of facet joint inflammation which may be amenable to a local corticosteroid injection. 

176     Mr Grossbard thought the situation was permanent and the plaintiff would be restricted in her employment prospects.  He suggested, at the age of fifty and with a long history of work-related injury to the extent she had not worked for six years, it was unlikely the plaintiff would find active employment on the open market, bearing in mind her issues with the English language.

The Plaintiff’s vocational evidence

177     Katherine Rintoule, Human Resources Consultant from Flexi Personnel, provided an employment assessment of the plaintiff in August 2016.

178     Taking into account the plaintiff’s medical reports and how she presented to her, Ms Rintoule thought that the plaintiff’s physical impairments resulting from her injury, fatigue, difficulties concentrating and memory issues, would present as substantial barriers if she were to attempt to adequately and productively return to the workforce in a full-time or part-time capacity, regardless of the role or industry.

179     Ms Rintoule considered, hypothetically, the plaintiff may have some residual transferable skills.  However, they were generally dependent on the physical capacity which was now very limited due to the plaintiff’s injury and subsequent pain.

180     Ms Rintoule believed the plaintiff would have great difficulty finding, and efficiently and consistently performing in suitable employment.  She thought the  plaintiff is now unable to do alternative employment duties due to her pre-injury skills and work experience being in physical manual work; her limited work capacity due to her physical injury; constant pain and symptoms; a likely poor productive work output; the possible negative side effects of medication; poor concentration, memory and fatigue issues impeding her ability to safely perform light factory bench-type duties; driving positions and working with or around machinery; her inability to use a computer and lack of administrative or clerical skills; her poor spoken English, and her minimal English literacy.

181     Ms Rintoule doubted the plaintiff could meet criteria of punctuality and regular attendance in a consistent capacity to productively fulfil any position.

182     Ms Rintoule did not consider the plaintiff was capable of doing the jobs suggested Co Work.

183     Katrine Green, psychologist, provided a vocational assessment report dated 25 August 2016.

184     Ms Green thought the employment options suggested by CoWork of machinist, seamstress, sewing machinist, presser, including home-based, and product assembler, including electronics, were not suitable employment for the plaintiff.  She considered that due to the plaintiff’s dominant right shoulder injury and current physical capacity, she was unable to perform the inherent duties of her previous occupation or the inherent duties of any suitable employment within the foreseeable future.

Surveillance

185     There was 65 hours of surveillance between November 2009 and January 2010 of which there was about 30 minutes of film.

186     In April 2010, the plaintiff was filmed over 57 hours and there was nearly 24 minutes of film.

187     In October 2010, there was 26.5 hours’ surveillance with 6.5 minutes of film.

188     In November-December 2010, there was 19 hours’ surveillance and 13.5 minutes of film.

189     In August 2011, there was 24 hours’ surveillance with 15 minutes of film.

190     In January 2012, there was 15 hours’ surveillance with 13 seconds of film.

Summary of medical certificates 

191     The plaintiff was certified unfit by Dr Phan for duties due to tendonitis on the following dates:  12 to 17 October 2009; 4 to 5 and 10 to 24 November 2009, 9 December 2009 and 15 March 2010; 19 to 22 March 2010; 24 March to 4 June 2010. From 23 November 2010 to 19 June 2011, he certified her unfit for work on the basis of a Chronic Pain Syndrome.

192     Dr Phan certified the plaintiff fit for modified duties in relation to a shoulder condition from 27 October to 21 November 2009; 23 November to 10 December 2009; 10 December 2009 to 25 March 2010; 21 April to 5 May 2010; 4 June 2010 to 27 August 2010. Thereafter to 19 November 2010, certificates were for chronic pain syndrome.  During that time, certificates were for light duties with the right arm for four hours, five days per week, with restrictions of carrying less than five kilograms; this included avoiding pushing, pulling and carrying heavy loads.

The Defendant’s medical evidence

193     The plaintiff attended Dr Soliman, manager of occupational medicine and hygiene at Ford, on 27 October 2009, stating that she had right shoulder pain in early October.  She had had no particular injury or incident and could not remember when she started getting the pain.

194     Dr Soliman diagnosed muscular strain across both trapezius muscles with the possibility of mild disc inflammation.  He believed the findings of mild disc annular prolapse was an incidental finding and was a pre-existing degenerative condition.  He did not believe any time off work was required.

195     Dr Soliman noted the plaintiff could not remember any particular injury or incident, nor could she remember when she started getting the pain.  The causation of her injury was not clear.  He thought her muscular strain could have occurred from repetitive outreaching and over-shoulder work.  He considered her cervical spine disc prolapse was likely to be an incidental finding of a pre-existing degenerative condition.   He did not believe the cervical disc pain was work related as there was no particular injury, incident or trauma.

196     Dr Soliman thought it likely the plaintiff would achieve full recovery soon from the muscular strain.  For the disc prolapse, it was likely that she would have intermittent and ongoing flare-ups, depending on her activities.

197     On 29 October 2009, Dr David Ho, occupational physician, examined the plaintiff and conducted a worksite assessment. The plaintiff was then working full time on light duties, reportedly making stock for the hood in Plant 2. 

198     The plaintiff told Dr Ho that on 31 August 2009, she experienced soreness in her neck, shoulders and upper back.  She saw her doctor on 4 September. Later that month, the plaintiff had some days off work. During the shutdown period she felt alright. In early October, she returned to work on the intrusion beam robotic welding machine and, after a week, reportedly could not do the work.  She stopped working for a week on 12 October 2009.

199     On 17 October 2009, the plaintiff was changed to light duties again.  She said she was not getting any better.  She complained of intermittent pain in her right shoulder.

200     From the history and clinical examination, Dr Ho believed the plaintiff may have sustained a soft tissue or muscular strain in the right shoulder and upper back in the course of her employment.

201     Dr Ho thought the CT scan finding of a mild broad-based posterior, annular C5 disc prolapse was a likely incidental finding and that the plaintiff’s employment had not caused or aggravated the underlying changes seen on the CT scan.

202     Clinical examination revealed a full range of neck and left shoulder movement and clinical examination of the right shoulder revealed restriction of movements, particularly in forward elevation and abduction, with pain on resisted movement. 

203     Dr Ho thought the plaintiff had a persisting injury to the right shoulder or a muscular strain which remained work related.  In his view, she then was not fit for her pre-injury duties on the Ford Territory door line.  He noted her short stature was probably not suitable for the physical requirements of that work. 

204     The restrictions imposed at that stage were avoiding heavy lifting in excess of five kilograms, avoiding repeated or strenuous arm movements above shoulder level, avoiding overreaching and over stretching, and avoiding heavy pushing or pulling.  He thought the plaintiff was capable of full-time duties within those restrictions.

205     A further worksite assessment was conducted on 29 April 2010, following which Dr Ho commented on appropriate duties in the front floor ECS bracket and bracket welding station (front floor Stage 2).  He noted the two duties encouraged the use of the right arm, which would ensure the plaintiff’s recovery in time.  He recommended a graduated return to work plan starting four hours a day, five days a week, gradually increasing by one hour at fortnightly intervals to full time.

206     The plaintiff was re-examined by Dr Ho on 13 May 2010.

207     The plaintiff then complained of pain in her right shoulder into her neck, across her upper back to her left shoulder and down to her lower back and pelvis.

208     The plaintiff said she had been on and off work since the last examination and her condition was getting worse.  Dr Ho thought the widespread symptoms would not be consistent with any physical injury, in particular, the likely soft tissue and muscular strain in the right shoulder.

209     Clinical examination that day revealed partial restriction of right shoulder movement.  However, the plaintiff was noted to use her right arm normally when scratching her right ear.

210     In view of the short duration of the plaintiff’s symptoms before her incapacity, Dr Ho would have expected the soft tissue and muscular strain in her right shoulder to resolve completely in the nine months since the original injury.

211     Dr Ho thought the plaintiff had good or normal capabilities with her right arm and believed there were non-physical factors contributing to the current nursing of her right arm.  In his view, the plaintiff must be encouraged to return to work on selected duties and gradually increase her hours to pre-injury level.

212     Dr Ho believed the duties of Orion deck lid pedestal welding, hood line pedestal welding, door intrusion beams and wood latch welding were well within the plaintiff’s current capacity, and hence suitable for her.  Thus, the return to work plan was well suited for her.

213     The plaintiff was examined for medico-legal purposes by Dr Shan, consultant psychiatrist, in November 2010.

214     Dr Shan then thought there was no psychiatric disorder or abnormal psychological condition relating to employment.  He noted the plaintiff would continue to be anxious about the physical symptoms she believed she had, and she would always consider she had developed an injury while working at Ford.

215     On re-examination in November 2015, Dr Shan again considered that there was no current psychiatric condition.  He thought the prognosis was that the plaintiff would continue to display an anxious reaction in response to various stresses in her life.  No treatment by a psychiatrist, psychologist or prescription of psychotropic medication was necessary for an identifiable psychiatric diagnosis.  He considered the plaintiff’s issues needed to be determined by physical medicine specialists and there was no psychiatric condition which affected her employment capacity.

216     Mr Ian Jones, orthopaedic surgeon, first examined the plaintiff on 13 December 2010.

217     On examination, the plaintiff complained of pain in the muscles on the right side of the neck. Casual observation revealed a much better range of cervical movement than when the plaintiff was formally tested.

218     Mr Jones thought the plaintiff suffered from mild, multi-level degenerative disc disease in the cervical spine, possibly manifesting as some neck pain and stiffness.  In the right shoulder, she had changes on the ultrasound, suggesting subacromial bursitis, although, clinically, she had no signs of any right shoulder pathology.  He could not exclude a mild tendinosis affecting the plaintiff’s rotator cuff tendons.

219     Mr Jones believed the major pathology was in the plaintiff’s cervical spine and the outlook was likely to be one of varying degrees of neck ache and stiffness symptoms, with slow deterioration with advancing years.

220     Mr Jones could find no evidence of any pathology affecting the right shoulder which had been caused or aggravated by work.

221     Mr Jones thought any heavy work associated with the plaintiff’s employment had the capacity to aggravate neck symptoms, but not to further the degenerative process involving her neck. 

222     Mr Jones did not think the plaintiff’s neck or right shoulder symptoms bore any significant relationship to her work with the defendant.  He noted her degenerative disc disease could be aggravated by work involving heavy pulling or pushing or extremes of neck movement.  He believed the plaintiff was fit for light processing employment, excluding any of the above demands, particularly in relation to her neck.

223     On re-examination in August 2011, the plaintiff reported her condition had deteriorated, with her major complaint being with regard to the shoulder blade.

224     On examination, there was a contrast between the plaintiff’s range of movement on formal testing and casual observation.  She feigned weakness of her elbow flexion and extension and similar movements of the right wrist.

225     Noting the investigations to date, Mr Jones thought the plaintiff suffered from some mild degenerative disease affecting a number of levels in the cervical spine.  In the right shoulder, there was some x-ray evidence of subacromial bursitis associated with the tendinosis or ageing of the rotator cuff tendons, but no evidence of any tear.

226     Mr Jones thought the prognosis was one of varying degrees of neck pain and stiffness in the short term, with a possible slow deterioration long term.  With the shoulder, the ageing process in the tendon would deteriorate with advancing years and there was a possibility at some point of a spontaneous tear.

227     Mr Jones thought the conditions affecting the plaintiff’s cervical spine and right shoulder were degenerative in aetiology.  It was possible they may have been aggravated at the time she was working, but he believed that since ceasing work and considering the treatment she had received, she had recovered from the effects of any possible aggravation caused at this time.  He did not believe employment was any longer a contributing factor.

228     Mr Jones did not think the plaintiff had suffered an injury during her employment with the defendant that had impacted on her employment capacity.  In his view, she was fit for employment where there was no requirement to push, pull or use the right arm in an overhead position.  Extremes of neck movement were contraindicated, given the mild degenerative disease affecting her neck.  He thought the plaintiff had a permanent incapacity for demanding physical activity involving her right shoulder.

229     In his report of 16 December 2011, Mr Jones confirmed he did not think the plaintiff required hands-on treatment.

230     On re-examination on 5 March 2012, the plaintiff again described symptoms of right shoulder pain.  She reported occasional numbness which affected the whole right side of her body when her right shoulder blade pain was severe.

231     There was no muscle wasting in the right shoulder and there was some restriction of movement.

232     Mr Jones again noted the difference between the plaintiff’s level of movement on formal examination and casual observation.  He confirmed his view as to the diagnosis and the involvement of constitutional factors.

233     On re-examination on 21 December 2015, the plaintiff stated that in addition to pain affecting the right trapezius muscle, the whole right half of her body felt uncomfortable.  She had no specific complaints of pain involving her cervical spine, but reported twisting movements could exacerbate the pain.  She isolated her pain to be at the midpoint of her right trapezius muscle in her right shoulder girdle.

234     Mr Jones did not believe the plaintiff’s neck or right shoulder complaint bore any association with her employment with the defendant.  The generalised nature of the degenerative disc disease, in view of her age, would be a common finding in a patient who had never suffered an injury and was simply the result of the normal ageing process.  In the right shoulder, similar findings of rotator cuff degenerative disease would be commonly seen in a patient of her age and he did not believe they related to work with the defendant.

235     Mr Jones was not able to identify any specific injury during the course of the plaintiff’s employment with the defendant or in any other circumstances leading to the plaintiff’s current complaint.

236     Mr Jones did not think the plaintiff would recover sufficiently to be able to return to her pre-injury employment.  She would be capable of non-physical employment where extremes of neck movement, heavy lifting or overhead use of the right arm was not required.  He thought the plaintiff had a permanent incapacity for heavy physical work.

237     On further re-examination on 8 September 2016, the plaintiff confirmed continuing, ongoing right neck and shoulder problems. She was then taking Celebrex daily. 

238     Mr Jones made similar comments about the difference between the plaintiff’s level of movement on casual and formal examination. 

239     Further, on examination, there was some subjective tenderness and an apparent collapsing weakness of flexion and extension of the elbow and wrist, and diminished power of grip in the dominant right hand.  There was no clinical evidence of subacromial tenderness and there was some restricted right shoulder movement.

240     Mr Jones confirmed that the plaintiff’s right shoulder or neck complaint did not bear any relationship to her work with Ford, and that she would be capable of undertaking work where there was no requirement to engage in heavy lifting, pushing or extremes of neck movement.  He thought overhead use of the right arm would likely exacerbate the plaintiff’s mild rotator cuff tendinitis and that there was a permanent impairment for that type of work.

241     Mr Jones thought the plaintiff was fit to undertake duties suggested by Ms Bryant including sewing machinist, seamstress, home-based ironer, electronics assembler and picker/packer (retail - online fulfilment). 

242     Based on the most recent physical examination, Mr Jones believed the plaintiff would be capable of undertaking work where there was no requirement to engage in heavy lifting, pushing or work where there was any requirement for extremes of neck movement.

Vocational evidence

243     WorkHab international carried out physiological testing of the plaintiff in March 2010. 

244     The plaintiff was recorded as being able to undertake a bilateral carry of 1.8 kilograms over 16 metres before experiencing right upper thoracic discomfort. She had difficulty attempting to carry 2.2 kilograms in her left hand over this distance.  She had similar difficulty lifting .2 kilograms in her right hand.

245     Outwork’s occupational therapist, Joanne Bryant, prepared a case assessment and labour market analysis report dated 13 April 2016, in which she set out the plaintiff was suitable for work as a sewing machinist ($725 gross per week), ironer/presser ($704 gross per week), home-based electronic assembler ($908 gross per week) and packer light ($812 gross per week).

Overview

246     The principal submission by counsel for the plaintiff was that the discrete right shoulder injury (bursitis and tendonitis) and injury to the cervical spine together cause an impairment of the right upper limb which is the relevant body function.[51]  In the alternative, it was submitted the injury to right shoulder or the cervical spine alone resulted in serious consequences.  

[51]T1

247     There was no application pursuant to ss(c).[52]

[52]T2

248     In support of the principal submission, counsel for the plaintiff relied on comments of the Full Court in Humphries & Anor v Poljak:[53]

“It is impermissible in an attempt to ascertain if a ‘serious long term impairment’ has been shown to exist to look to a number of ‘impairments’ not any one of which is a ‘serious long term impairment’ and treat them as acting in total, as it were, so as to meet the requirement of the definition.  A body function must be identified (emphasis added). That done the inquiry to be made is whether that function has been impaired or lost. It may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.”

[53][1992] 2 VR 129 at paragraph [6]; T97

249     Similar comments were made by the Court in Petkovski v Galletti.[54]

[54] [1994] 1 VR 436; T7 and T97

250     Counsel for the plaintiff also relied on the comments made by Buchanan JA in his dissenting judgment in Lu v Mediterranean Shoes Pty Ltd[55] and also  Chernov JA’s comment:[56] 

“But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of body function is serious and long term.”

[55](2000) 1 VR 511 at paragraphs [1]-[5]

[56]Ibid at paragraph [27]; T102

251     Counsel for the plaintiff made brief reference to Target Australia Pty Ltd v Moloney.[57]  However, in that case, which involved a spinal impairment, Brooking JA rejected the argument advanced on the plaintiff’s behalf that the ability to engage in manual work was a body function.   

[57][2000] VSCA 124; T102

252     As Brooking JA stated, at paragraphs [18] to [19]:[58]

“But I would not leave this part of the appeal without discountenancing entirely the view put to this Court and to the jury by counsel for the respondent, in slightly differing formulations, that to work, to undertake full-time employment or to engage in manual work is ‘a body function’ within para(a) of the definition of ‘serious injury’.  To do such things might be described as a function, or even (by some) as the chief end, of homo sapiens, but that is quite a different matter.  Counsel for the respondent argued that his submission was supported, if not necessitated, by the fact that the definition did not speak of a function of a ‘part of’ the body, but of ‘a body function’.  To my mind, however, the word ‘body’ used adjectively need not refer to the body as a whole but may apply to any one or more of its parts and here necessarily does so.  If the respondent’s submission were correct, one could treat the engaging in any human avocation or recreation, for instance, as a body function.  ‘A body function’ denotes a physical act or operation, not some ‘applied’ activity.

I should say that his Honour began the relevant portion of his charge by defining or describing a body function in unexceptionable terms, but then moved to put to the jury as a possible ‘point of view’ the body function which counsel for the respondent had put to them and, as I have said, put to this Court.  But no complaint to this Court has been made for the appellant about that.  In any event it would be a sufficient answer to any such complaint that not only was no exception taken but that, when counsel for the respondent at the invitation of counsel for the appellant foreshadowed that he would put that view of the relevant body function to the jury, counsel for the appellant explicitly agreed in that course or, if the agreement which he expressed did not extend to that point, in no way dissented from what counsel for the respondent foreshadowed.”

[58]Ibid at paragraphs [18]-[19]

253     In support of his principal submission, counsel for the plaintiff also relied upon comments of the Court of Appeal in Georgopoulos v Silaforts Painting Pty Ltd & Ors:[59]

“It can be seen that, in the first instance, serious injury is constituted by permanent serious impairment or loss of a body function. Such impairment or loss of a body function is not the same thing as impairment of a person as a whole.  As the Full Court held in Humphries v Poljak in respect of the parallel provision in the Transport Accident Act 1986, the definition requires the identification of a body function and the assessment of the extent to which the body function has been affected. Two or more injuries may act together on a particular body function so as to cause serious impairment or loss within the meaning of the definition, but it is impermissible to aggregate impairments, one of which is not a permanent serious impairment, to separate body functions in an attempt to satisfy the requirements of the definition.

It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences.  Section 134AB(38) then goes on to make ‘elaborate provision’ for the assessment of those consequences.”

[59][2012] VSCA 179 at paragraphs [58]-[59]

254     Reliance was also placed on decisions in the County Court where a body function has been held to be the capacity to undertake manual work using two hands. Whilst no particular authorities were cited in this regard, cases where this proposition has been accepted include Raimondo v Hoi Yeung Pty Ltd (trading as Oceanic Food),[60] Giuliano v Red Robin Pty Ltd & Anor[61] and Wright v Mount Edisar.[62]

[60][2005] VCC 1400

[61][2008] VCC 1805

[62][2006] VCC 410

255     Counsel for the plaintiff submitted, if it was accepted there was an impairment of the function of the right arm as a consequence of compensable injuries to the neck and shoulder, the Court did not need to determine what the predominant impairment was.[63]

[63]T100

256     In response, counsel for the defendant submitted that the course proposed by counsel for the plaintiff involved trying to do exactly what was unsuccessfully attempted by the plaintiff in Lu v Mediterranean Shoes Pty Ltd[64] where there was a “pure aggregation”.

[64]Supra

257     Counsel for the defendant relied on the comments of Chernov JA:[65]

“… the mere fact that those injuries (to the right shoulder area and the right elbow respectively) had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function.  A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s 135A(19)(a).  Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg.  In case I am wrong in my conclusion on this matter, I shall proceed to analyse Mr Bingeman’s primary case on the footing that the two separate injuries impaired the one body function, namely, the plaintiff’s right arm.”

[65]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraph [23]

258     It was submitted it was obvious, when one analysed the medicine, why the plaintiff was trying to combine the two impairments, because neither stood alone as a serious injury.[66]

[66]T71-72

259     In my view, it is not permissible to take the course proposed by counsel for the plaintiff aggregating a right shoulder impairment with a cervical spine impairment when relying on the body function of the right upper limb.  The two injuries impaired two different body functions – the right shoulder and the cervical spine and cannot be combined and considered as the one body function, the right upper limb.

260     While it is clear enough two or more injuries arising from one incident may contribute to the one impairment (Humphries & Anor v Poljak[67]), the aggregation of any impairment or impairments caused by two or more separate work injuries is subject to the principles established by the Court of Appeal in Lu v Mediterranean Shoes Pty Ltd.[68]

[67](supra) at paragraph [138]

[68]Supra

261     Accordingly, the primary application is dismissed.

262     In the alternative, applications were separately brought for a right shoulder impairment and a cervical impairment pursuant to ss(a).

The right shoulder

263     It is not disputed that the plaintiff suffered a compensable injury to her right shoulder, with Dr Soliman and Dr Ho in late 2009 initially diagnosing a likely muscular strain.

264     Counsel for the defendant conceded there was some bursitis in the shoulder and some doctors had diagnosed tendonitis.  It was submitted however that the plaintiff’s shoulder condition was not to the upper end of the range of shoulder complaints involving impingement or rotator cuff tear.[69]

[69]T73

265     Mr Hooper thought the plaintiff had tendonitis with what was reported as being bursitis.  Dr Castle came to a similar conclusion.  Whilst Mr O’Brien thought there may be dual pathology, he also diagnosed tendinopathy.    

266     Although Dr Thomas noted a lack of voluntary movement on the plaintiff’s part during examination,[70] he diagnosed an organically-based neuropathic pain syndrome.

[70]T84

267     Mr Grossbard was the only medical practitioner who considered the plaintiff’s condition was essentially neck related and did not diagnose a separate shoulder condition.  He thought that upper limb pain could be referred from the cervical spine. Therefore, his opinion is of little assistance to the plaintiff in her right shoulder application.

268     Whilst some functional issues were noted by Dr Ho early on and also by Mr Jones on examination in more recent times,[71] it was not submitted on the defendant’s behalf that the plaintiff’s present right shoulder condition lacks a substantial organic basis.[72]  

[71]Collapsing weakness and inconsistencies in level of movement on examination

[72]T13; Meadows v Lichmore [2013] VSCA 201

269     I accept the plaintiff continues to suffer from an organically-based right shoulder condition which requires ongoing treatment.

270     Mr Jones is alone in his view that this shoulder condition is no longer work related and that any soft tissue injury should have resolved. However, he did not explain on what basis he reached this conclusion in 2011.

271     In summary, it was submitted by counsel for the plaintiff that leave should be given because the plaintiff was genuine and well-motivated, she had received an extensive range of treatment and was still being treated.  It was submitted that the Court should be satisfied, on the evidence of Mr O’Brien and the plaintiff’s treating general practitioner, that the plaintiff continues to be incapacitated for work as a result of her right shoulder condition.

272     In response, counsel for the defendant submitted that medical examiners did not find a specific weakness in the plaintiff’s right arm and their findings could not explain her level of complaint.  On that basis, it was submitted the plaintiff was exaggerating.[73]

[73]T84

273     As for pain and suffering, it was submitted the plaintiff was doing the majority of her pre-incident activities, although she had pain doing certain activities.  It was submitted the major issue in this case is whether there is a total lack of work capacity and that the Court should not be satisfied on the evidence that this was the case and that the plaintiff has at least a partial capacity to work which she exercised.[74]

[74]T93

Credit

274     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[75]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.

… .”

[75](2010) 31 VR 1 at paragraphs [11]-[12]

275     Counsel for the plaintiff submitted that the plaintiff was truthful, honest, direct, and maybe at times inaccurate because of problems through the interpreter. It was submitted she gave her evidence without prevarication and made concessions as and when appropriate.[76]

[76]T103

276     It was submitted the results on physiological testing were supportive of her credit having complied with, and underperformed on that testing. 

277     However, counsel for the defendant also relied on the results of this testing, querying the plaintiff’s genuineness, in particular because of her inability to carry even very light things in her non-injured left hand.[77]

[77]T115

278     As I suggested to the parties during the hearing, I did not think credit was a major issue in this case although I accept that the plaintiff at times has exaggerated her level of pain and restriction.[78] Mr Jones was the only medical practitioner who went so far as to describe the plaintiff “feigning” weakness in her right upper limb. [79]

[78]T90

[79]T104

279     Significantly, the plaintiff has been under surveillance for many hours since 2011 and there has been film of her various activities which the defendant has chosen not to show.

280     In my view, the plaintiff’s rather confusing and conflicting answers about her upper limb problems in cross examination resulted from a misunderstanding of the questions rather than her not being truthful.[80] On another occasion, the plaintiff clearly misunderstood a simple, not particularly important question as to whether her brother was her local parish priest, initially answering yes but then correcting this answer in re-examination.

[80]T90

Pain

281     As Maxwell P stated in Haden Engineering Pty Ltd v McKinnon,[81] the evidentiary basis of the pain assessment will, inter alia, ordinarily comprise what the plaintiff says about the pain (both in court and to doctors).

[81](supra) at paragraph [11]

282     Since the injury in late 2009, whilst the plaintiff has complained of an increasing range of symptoms, she has continued to complain of right shoulder pain in the muscle at the top of her shoulder, radiating down her right arm.

283     As a result of this pain, the right-hand dominant plaintiff is restricted in her ability to raise her right arm overhead and outwards and also carry other than very light weights.

284     Although surgery has not been suggested,[82] the plaintiff has undergone a range of treatment for her right shoulder and as recently as March this year, has required a subacromial injection at St Vincent’s Hospital Rheumatology Department, which gave her limited relief.[83]  She underwent earlier injections in February 2015, March 2011 and October 2009.

[82]T95

[83]T105

285     From October 2014, the plaintiff has been seen regularly in the Allied Health Outpatients Clinic, mainly the Physiotherapy Clinic, for ongoing exercises and treatment for shoulder pain and limited movement. She last attended Rheumatology Outpatients in July this year.

286     The plaintiff has continued to require painkilling medication prescribed by Dr Phan.  From February 2015, this has included Celebrex, Lyrica and Panadeine Forte and, more recently, Naprosyn.

287     No medical practitioners consider the plaintiff has a capacity for unrestricted physical work.  They differ, however, in respect of what injury or condition is the cause of that situation.

288     Importantly, the plaintiff’s general practitioner, Dr Phan, considers the plaintiff is unfit for work having certified she is incapacitated due to her right shoulder condition.[84] As of September 2016, he described the plaintiff having as ongoing disabling persistent disability pain of the upper back and shoulder, which had incapacitated her for the last few years. 

[84]T106

289     Whilst counsel for the defendant was critical of Mr O’Brien’s path of reasoning, following examinations in 2011,[85] although mentioning the possibility of dual pathology, Mr O’Brien thought the plaintiff was totally incapacitated for work as a result of her right shoulder condition.[86]

[85]T78

[86]T107

290     Although many of the assessments of the plaintiff’s employment capacity are now outdated, the consensus of opinion in 2010-2011 was that without improvement in her condition with treatment, the plaintiff was unable to do her pre-injury work and only had a capacity for light duties.

291     When occupational physician, Dr Castle, last saw the plaintiff in February 2011, he thought there was a reasonable prospect of treatment being successful to enable her to return to work, although probably not for her pre-injury duties.

292     Dr Thomas, in November 2010, thought the plaintiff had a permanent partial capacity.  Without any improvement in her condition, her ability to work beyond half time was likely to eventuate.  

293     Mr Hooper, as of March 2011, thought the plaintiff was capable of light work and her prognosis was guarded.

294     Counsel for the defendant relied on the opinion of Dr Ho, who it was submitted was somewhat more positive in terms of the plaintiff being fit for a graduated increase in hours when he last reported in May 2010.  He believed the plaintiff must be encouraged to use her right arm at work to restore maximum function and thought the duties suggested at that time were within her capabilities.[87]

[87]T82

295     However, Dr Ho has not seen the plaintiff since May 2010. Whilst the plaintiff was able to work more than 20 hours per week after her injury, her condition was aggravated at times when she worked on the two handed machine as she described to Dr Thomas and other examiners, and she was unable to work at all after October when she was certified unfit for all duties.

296     Although he focussed on the plaintiff’s neck condition, Mr Grossbard thought the plaintiff should avoid where she was required to repeatedly and forcefully use her right arm.

297     Whilst he thought the plaintiff was unfit for pre-injury work on the basis of primarily her age-related degenerative conditions, Mr Jones is alone in the view that she is fit for the alternative occupations suggested. 

298     Taking into account all the evidence, I am satisfied the plaintiff has no capacity for unrestricted physical work as a result of her shoulder pain and restriction. In my view, this is a serious consequence for a fifty-one year old woman with no training in other than machine work.

Loss of earning capacity

299     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

300     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.

301     The former must be calculated by reference to the six year period specified in s134AB(38)(f).

302     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or 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.

303     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 worker’s earning capacity.

304     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) therein.

305     I am therefore required to determine a “without injury” earnings figure. There was no real dispute in this regard, with counsel for the plaintiff suggesting a figure of $56,054 – the plaintiff’s earnings in 2008-2009, 60 per cent thereof of which is $33,632.[88]

[88]T9

306     Four jobs were suggested by CoWork as suitable for the plaintiff in 2016:  sewing machinist, ironer/presser (home based), electronic assembler and packer (light). 

307     Both Katrine Green and Katherine Rintoule, vocational experts relied upon by the plaintiff, thought the plaintiff did not have a capacity to do any of the suggested roles due to her right shoulder injury alone.

308     I accept the plaintiff’s evidence that the suggested jobs of ironer and sewing machinist, which involve constant and repetitive use of the right arm, are totally unsuitable for her.  Sewing involves pulling and stretching fabric with the right hand and ironing is a repetitive movement which would also involve handling heavy baskets of clothes and hangers with clothes.

309     In my view, the other jobs as packer and electronic assembler were also inappropriate because of the requirement to use the right arm on an ongoing basis.  As Dr Thomas noted in 2010, it would be problematic finding a job involving one hand, as most manual jobs were done with both arms.

310     Further, as the plaintiff explained, because of pain and restrictions, she would not be a reliable punctual employee who could consistently attend work on a regular basis – a view shared by vocational assessor Ms Rintoule.

311     As the plaintiff does not have the capacity to do jobs suggested in the defendant’s behalf or other alternate work for more than a couple of hours a day a few days a week, I am satisfied the plaintiff does not have the ability to earn in excess of $33,600 for the foreseeable future. 

312     Accordingly, I am satisfied the plaintiff has the requisite loss of earning capacity.

313     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

314     Counsel for the defendant submitted that pre injury, the plaintiff she led a very busy life working, looking after two young children and her household. In those circumstances, it was submitted she was not particularly engaged in working with the defendant. [89]  

[89]T90

315     Counsel for the defendant submitted the plaintiff did not “make a real fist” of a return to work. She had no motivation to continue working after her injury and voluntarily took a package.  Thereafter, she had made no attempt to look for work or made any effort to rehabilitate herself, not undertaking an English or computer course which would have assisted her in getting a further job. 

316     Further, it was submitted there was no financial pressure for the plaintiff to return to work.[90]  Although submissions were not made directly on this point, the plaintiff’s taxation returns were tendered to show that she received income from a rental property.[91] 

[90]T93

[91]T94

317     As I indicated during the hearing, I do not accept that the plaintiff lacks motivation and that she had not attempted to return to work because she was not under any financial pressure.  She tried the limited light duties made available to her after her injury and could not cope with the two handed work she was ultimately provided with after other duties were withdrawn.

318     Whilst he was optimistic about the plaintiff’s ultimate return to full time work, at no time post injury did Dr Ho certify her fit for unrestricted full time duties.

319     In my view, the plaintiff has no ability to rehabilitate or retrain, given her lack of English, current age and lack of other work experience and qualifications.  I accept that she is genuinely off work because of her shoulder complaint, and continues to be incapacitated for employment.[92]

[92]T114

320     In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

321 As the plaintiff has satisfied 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, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[93] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle.[94]

[93][2009] VSC 454 at paragraph [147]

[94][2009] VSCA 170

322     Having determined that the plaintiff has a serious injury in relation to her right shoulder, I am not required to consider the application in relation to the cervical spine.

323     As the plaintiff’s right shoulder condition has persisted for in excess of five years and she continues to require treatment in relation thereto, I am satisfied this impairment is permanent.

324     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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