Novakovic v The Royal Children's Hospital
[2014] VCC 851
•12 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-06248
| SLAVKA (SALLY) NOVAKOVIC | Plaintiff |
| v | |
| THE ROYAL CHILDREN’S HOSPITAL (ABN 35 655 720 546) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 May 2014 | |
DATE OF JUDGMENT: | 12 June 2014 | |
CASE MAY BE CITED AS: | Novakovic v The Royal Children’s Hospital | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 851 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right shoulder – loss of earning capacity only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Elias-Mikre v The Royal Melbourne Hospital [2013] VCC 1860; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Giankos v SPC Ardmona Operations Limited (2011) 34 VR 120
Judgment: Leave granted to the plaintiff to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr S Jurica | Zaparas Lawyers |
| For the Defendant | Mr T Ryan | Hall & Wilcox |
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 during the course of her employment with the defendant from October 1999 and in particular, on 9 May 2005 (“the first date”) and 14 June 2007 (“the second date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded at the commencement of the hearing.
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” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right shoulder.
5 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.
6 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
7 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
8 The plaintiff relied upon two affidavits and gave viva voce evidence. 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
9 The plaintiff is presently aged sixty-two, having been born in Yugoslavia in 1952. She attended primary school for eight years and did home economics for two years.
10 The plaintiff came to Australia at the age of eighteen. Within weeks of arriving, she worked as a process worker and then was off work for five years with a young child and did part-time sewing work for a year. The plaintiff was off work for a further two years before she started work with the defendant on 25 April 1980.
11 For the first sixteen years in that job, the plaintiff worked in the catering department and she was then offered retraining as a patient services assistant (“PSA”). That job involved assisting nurses, moving patients for x‑rays or other treatment in beds or wheelchairs, serving meals, washing dishes, washing and making beds and mopping floors.
Pre-injury health
12 In the early 1990s, the plaintiff began to develop neck and back pain at work. She saw her general practitioner, who referred to her to an orthopaedic surgeon. The plaintiff had regular physiotherapy for about a year and also chiropractic treatment.
13 The plaintiff was referred to Mr Turner, another orthopaedic surgeon, in about early 2000. He did not advise surgery and suggested exercises. The plaintiff did not seek further treatment, although she continued to have some intermittent neck and back pain. That pain was never serious enough for her to lose any time off work.
14 The plaintiff was cross-examined extensively about her pre-incident history.
15 The plaintiff disagreed it was the case that her solicitors put together the affidavit. She gave them some of the details from her diary and did her best to try to recollect.[1]
[1]Transcript “T” 23
16 The plaintiff confirmed that the onset of back and neck pain was in the early 1990s working in the defendant’s kitchen due to the heavy nature of her job.
17 The plaintiff did not think she had a serious problem with her right shoulder before May 2005. She did not realise she had a shoulder problem until she saw the surgeon, who organised the MRI scan in 2011, seven years after the first date.[2] She just thought it was wear and tear and just pain from working hard in her job where there was a lot of pushing, pulling and lifting in the ward.[3]
[2]T25
[3]T26
18 The plaintiff was shown her Claim Form relating to injury to the right shoulder and neck on 19 October 1985. She could not recall putting in any claim. She was not off work, she was working.[4] Also noted on that form was right shoulder pain on 13 November 1984. She did not think much about her shoulder but it looks like she had a problem with it then.
[4]T27
19 In May 1986, the plaintiff submitted a Claim Form for a right lower arm injury. In a Claim Form dated 12 June 1986, the plaintiff set out she had injured herself on 9 June 1986, suffering a sore neck after lifting some soft drink boxes. On that form, she described a previous sore shoulder.
20 The plaintiff’s right shoulder problems could have started before 2005 but she did not have much of a problem. She just worked with it.[5]
[5]T29
21 In a declaration on her Claim Form relating to the incident on the first date, there was no mention of any previous injury to the plaintiff’s right shoulder.[6]
[6]T30
22 The plaintiff did not recall the earlier injuries because she had never been off work and never used WorkCover.[7]
[7]T35
23 The plaintiff agreed that she had persisting symptoms of neck and lower back pain on occasions throughout 1993, 1994 and 1996.[8]
[8]T34
24 The plaintiff could have had a very short time off work in the past because of injury but it was never like being at home for six months or three months or just being away for a long period.[9] She was always able to go to work, so no matter how sick she was, she was pushing herself to go back to work.[10]
[9]T83
[10]T84
The first incident
25 On the first date, the plaintiff, whilst standing on a chair to wash windows, lost her balance, falling and landing on her left side (“the first incident’). She had pain in her left elbow and hip and also her neck and back. She felt very stiff in most of her body.
26 The plaintiff attended her usual general practitioner, Dr Bhathawalla. The bruising resolved but the plaintiff continued to have discomfort, particularly in her neck, and she was off work for three weeks before resuming normal duties. She was referred for physiotherapy which did not really help. She was recommended for massage which she undertook once a week for about six months, but that also was not of much assistance.
27 In about 2000, the plaintiff commenced part-time work as a PSA at Frances Perry House (“Frances Perry”). Initially, she worked weekends but in 2003, she started working Wednesday, Thursday and Friday from 3.00pm to 11.00pm and Saturday and Sunday from 6.30am to 2.30pm.
28 At that time, the plaintiff was also working for the defendant, doing shifts in the Orthopaedic Department from 6.30am to 2.30pm.
29 At one stage prior to the second date, the plaintiff was working two jobs, 70 hours a week.[11]
[11]T50
30 At Frances Perry, the plaintiff usually worked in the birth suite. That work involved mainly mopping, wiping and keeping the suites clean. It was lighter work than her job with the defendant and she rarely had to move patients.
31 The plaintiff’s neck and back pain continued and she also developed discomfort in her right shoulder.
32 The plaintiff’s general practitioner arranged for a CT scan of her back on 3 October 2006 and her neck the following month. The plaintiff was then referred to Mr de la Harpe, an orthopaedic surgeon, who arranged an MRI scan of her neck later in 2006. In early 2007, he referred the plaintiff for physiotherapy, which she attended on two occasions but it did not help.
33 Dr Bhathawalla was then prescribing Celebrex, Feldene, and also Panadeine Forte, which the plaintiff took for a few weeks every few months when her pain, particularly neck pain, was worse. When not taking Panadeine Forte, she usually took Panadeine for neck pain and headaches.
The second incident
34 On the second date, whilst working with the defendant, the plaintiff felt pain in her hands, neck, right shoulder and back when she was pushing a patient in an orthopaedic bed (“the second incident”).
35 The pain was very bad. The plaintiff attended her general practitioner on 25 June 2007. She also filled in a WorkCover Claim Form for her hands. She was later diagnosed with carpal tunnel syndrome and had surgery on her right hand in 2009. However, her claim for that condition was rejected.
36 The plaintiff continued to see her general practitioner about every two months. The plaintiff took Panadeine Forte on average three to four tablets a week and used Feldene. She was referred for further physiotherapy, which she undertook weekly for several months. The plaintiff commenced further massage therapy with another therapist until April 2010 when funding was ceased.
37 In early 2009, the defendant’s new manager wanted the plaintiff to change her shift from her usual early start to 9.30am to 6.30pm, as there was a shortage of staff in the afternoon. The plaintiff was very upset as she had been working the same shift for the defendant for a very long time and she thought the defendant was very inconsiderate making that change.
38 The plaintiff agreed she was unhappy with the change to her shift and that she wrote to the defendant in that regard in April 2009,[12] saying she was not happy with starting her shifts later in the day. That did not suit her because she was trying to hold down two jobs.
[12]T51
39 The plaintiff then denied the shift change was the reason for her resignation from the defendant. She took some leave to think about what was best for her for her future because she had a lot of issues – her arms, shoulder and back – and she thought if she stayed there any longer, she would not last very long because of having to push beds, and her work, and that that was why she decided to leave the defendant and just concentrate on one job.[13]
[13]T52
40 The plaintiff agreed that her resignation from the defendant was mostly to deal with shift changes.[14]
[14]T59
41 The plaintiff agreed that when she stopped work with the defendant she was earning $19.11 an hour, or $726.15 per week.[15]
[15]T66
42 The plaintiff’s general practitioner then referred her to Dr Datta, a psychiatrist, who the plaintiff saw monthly for a few months. He prescribed antidepressants.
43 Dr Datta thought it might be best for the plaintiff if she resigned and forgot about her job with the defendant but the plaintiff took long service leave and then decided to resign in September 2009.
44 The plaintiff stopped seeing Dr Datta after she resigned. She felt a little bit better but still got upset whenever she thought about the defendant’s actions.
45 The plaintiff agreed that she “went mad” because of the shift change and she was so upset and was referred to a psychiatrist.[16]
[16]T52
46 The plaintiff explained she did not tell Dr Datta about her physical problems because she went to see him as a psychiatrist and he would not have the time to talk about all the problems in her life.[17] He advised her to leave the defendant if she was going to be sick every day and cry every time she got to work. He advised against a WorkCover claim.[18]
[17]T53
[18]T54
47 The plaintiff agreed the Frances Perry job was ideal for her but then said she lost many benefits she would have had if she continued working for the defendant. She denied thinking about a WorkCover claim when she was seeing Dr Datta. She hates WorkCover and never enjoyed being on it because it gave her a lot of problems.[19]
[19]T56
48 When the plaintiff swore her first affidavit in September 2010 she was still working at Frances Perry from 3.00pm to 11.00pm, Sunday to Thursday, working a 36-hour week, which was half the time she had worked prior to leaving the defendant. She then did not think she would be able to increase her hours with her current level of pain. She was seeing her general practitioner every two months and taking Tramal or Panadeine Forte, on average three to four days a week; Stilnox to help sleep, two or three days a week, and Panadeine or Panadol.
49 The plaintiff then had right shoulder pain all the time, spreading down her arm and into her neck, contributing to her neck pain. Her shoulder always felt heavy, as though it was weighing her down. She also had headaches.
50 The plaintiff was referred by her general practitioner to Mr Hunt, an orthopaedic surgeon, who organised a right shoulder MRI scan in July 2010 which showed a full thickness tear. Mr Hunt arranged for a cortisone injection but that did not help. WorkCover refused his request for funding for surgery.
51 The plaintiff then had intermittent back pain which spread into her upper legs, worse on the left. She had problems with her neck when driving and had increased back pain sitting more than 30 minutes. Her back and neck pain at times was such that she could not walk. She occasionally limped on her left leg.
52 The plaintiff had difficulty sleeping and could not sleep on the right side because that caused increased neck and right shoulder pain. She had to be careful when turning over in bed to limit her neck and back pain. In the mornings, her neck and back were stiff, thus she had had a shower first thing in the morning. She used Feldene gel or plasters for her right shoulder, neck and back. She could not get out of bed on her right side as that increased her shoulder pain.
53 The plaintiff lived with her husband. She still did most of the cooking with help from her son and daughter-in-law, who lived nearby. She had increased discomfort standing at a bench or sink for more than about 30 minutes. Her daughter-in-law hung out the washing. The plaintiff cleaned the bathroom at her own pace.
54 The plaintiff had assistance from her daughter-in-law to help look after the vegetable garden and artificial grass was put in in 2007 to limit the maintenance.
55 The plaintiff was previously active in the local Serbian community but then only went out when she was obliged. The sitting and standing involved with social activities increased her neck and back discomfort and she could not see any real purpose in going out.
56 The plaintiff swore her most recent affidavit on 20 May 2014.
57 The plaintiff is in receipt of weekly payments of compensation. WorkCover ultimately approved the two right shoulder operations.
58 The plaintiff stopped physiotherapy in January this year. She now goes to the gym five times a week, and also does hydrotherapy. When she does not go to the gym, she has had too much pain. The exercises relieve her pain and she does not have to take as many tablets.
59 The plaintiff no longer uses plasters. Instead, she uses a patch given to her by a friend. She applies the patch to her right shoulder and lower back roughly once a week.
60 About three years ago, the plaintiff started seeing Dr Calic, as her practise was closer to the plaintiff’s home. The practice the plaintiff previously attended closed and the plaintiff could walk to Dr Calic’s surgery.[20]
[20]T68
61 On 10 February 2012, the plaintiff had surgery on the right shoulder (“the first operation”) to repair what Mr Hunt had described to her as a 3-centimetre tear in the shoulder tendon.
62 Following her arm being in a sling, the plaintiff then had physiotherapy for six months. She took Panadeine Forte, Mobic and sleeping tablets.
63 The plaintiff kept working at Frances Perry until the first operation but had returned to work since.
64 The first operation was a failure. In the first six months thereafter the plaintiff felt good but then she started having difficulty moving her arm and it felt like it was stuck. She was advised by Mr Hunt that she had a frozen shoulder.[21]
[21]T69
65 On 19 November 2012, the plaintiff had further surgery, again performed by Mr Hunt (“the second operation”). After about six or seven weeks, her range of movement was better. She had physiotherapy for about another six months and then she started attending the gym.
66 The plaintiff returned to Mr Hunt six months after the second operation because she was having more shoulder pain and he sent her for a further MRI scan.
67 The plaintiff agreed she then told Mr Hunt that she was pleased with her recovery. He thought her range of motion had gradually improved. He did not say to the plaintiff that she would not work again.[22]
[22]T71
68 The plaintiff understood she now has a spur in her right shoulder and Mr Hunt told her she may need another operation but she did not want further surgery because she was scared and she did not want her shoulder to get worse, so she was just putting up with it. Mr Hunt said to think about it to see how she felt for the next six months and see what would be done then.
69 The right shoulder and neck symptoms previously deposed to have continued.
70 The plaintiff still gets constant right shoulder pain spreading into her right arm and sometimes pins and needles in her fingers. Her shoulder pain gets worse when she tries to lift things or when she raises her arm to above shoulder height.
71 When she does any quick movements, the plaintiff feels a stabbing pain in the right shoulder at least once or twice a day and the rest of the time, it feels like there is something heavy pushing down on her shoulder. It is like a drilling type of pain. She feels her right shoulder is worse because of her neck. She feels the two are connected.
72 The plaintiff has constant lower back pain spreading into both upper legs with a feeling of weakness in the left leg and numbness in the left thigh. She has headaches every day which she believes are from her neck.
73 The right shoulder is the biggest problem as the plaintiff uses her right arm to do most things and she finds it difficult doing anything with her right shoulder pain.[23] However, her neck and lower back are also painful.
[23]T21
74 The plaintiff takes one 15-milligram tablet of Mobic in the morning and also one Nexium tablet. She takes one Panadeine Forte tablet during the day and one during the evening.
75 The Mobic and Panadeine Forte are for the plaintiff’s right shoulder, neck and back pain. She takes one Stilnox about two or three times a week when she has problems sleeping because of her right shoulder, neck and back pain.
76 The plaintiff puts Voltaren gel on her shoulder most evenings and when the pain is not bad, instead of taking Panadeine Forte, she takes Panadol Osteo, on average three or four tablets a week.
77 The plaintiff has told Dr Calic of her neck, low back and hip pain, as well as her right shoulder pain over the last two years. The plaintiff agreed she was taking medication at least in part because of all those complaints. She takes Mobic most of the time, taking it four times a week at least: one in the morning and one at night. She takes Panadeine Forte on the same basis and takes Panadol every day because she has a headache every day.
78 The plaintiff sees Dr Calic roughly monthly and she prescribes medication and gives the plaintiff certificates of capacity.
79 Now the plaintiff’s husband does most of the cooking and the plaintiff is still able to cooker lighter meals. Sometimes she gets more right shoulder pain when using her arm to stir pots. Before, she used to enjoy making Serbian dishes and also baking and decorating cakes and making croissants but now the plaintiff does not do these activities, as kneading the dough is too painful for her shoulder. Now, occasionally, her husband makes the Serbian dishes.
80 The plaintiff’s son and daughter-in-law help with household chores and her husband helps with heavier shopping. The plaintiff is limited in her ability to play with her grandsons, aged eight and ten.
81 The plaintiff no longer has the successful vegetable garden that she previously enjoyed.
82 The plaintiff’s neck pain gets worse when she turns her head driving.
83 Before the injury, the plaintiff had a healthy sex life but since then, she very rarely had sex because of her right shoulder, neck and back pain.
84 The plaintiff has problems sleeping because of neck and right shoulder pain and her sleep is broken when she does not take medication and when she does, she gets about four or five hours sleep.
85 The plaintiff has put on about 10 kilograms due to inactivity. She has problems with her memory and gets drowsy with the medication.
86 The plaintiff finds it difficult to go to the toilet and wiping herself because of right shoulder pain. Putting on shoes and socks is also difficult because of right shoulder and back pain and she is helped by her husband in this regard. The plaintiff does her bra up at the front and her husband helps her dress. He also helps her with other personal hygiene tasks.
Employment
87 The plaintiff denied that she had no motivation because she and her husband had effectively retired after he had received a common-law settlement.[24]
[24]T43
88 The plaintiff would love to go back to work. She stressed that she is not retired. She would rather go back to work if there was something suitable as she going crazy at home with her husband.[25]
[25]T79
89 Dr Calic met with Nabenet and the plaintiff and discussed job options. Dr Calic told the plaintiff she would need to know the job specifications before she could advise the plaintiff if a job was suitable. Nabenet had been involved with the plaintiff for a couple of years.
90 The plaintiff agreed that she would try a suitable job if there was one and that Melissa from Nabenet had tried so many options for her and she was not successful. There was only one reply from Melton Council for the job of crossing supervisor and the plaintiff did not get that job.[26] The plaintiff has not applied for jobs herself – the applications have been made by Nabenet.
[26]T45
91 The plaintiff agreed she has no trouble communicating in English and she was able to read her affidavit. She still has a driver’s licence, Certificate III in Health Support Services and she has done a supervisor’s course and obtained a Diploma in Restaurant and Catering Management.[27] She had also done an advanced supervisor’s course as set out her résumé.
[27]T47
92 The plaintiff still has problems with spelling and is not very good at writing.[28] Her son did her old résumé.[29] The plaintiff disagreed that some of the jobs she had previously done involved the ability to change posture.
[28]T49
[29]T82
93 The plaintiff completed an eight to ten-week computer course in 2013, involving word processing and Excel but it was too difficult for her learn so she did not get much out of it.
94 Nabenet thought the plaintiff would have difficulty working in catering as she would have problems carrying food. The problem was not just with standing.[30]
[30]T79
95 The plaintiff did not do any physical work in the family cleaning business.[31] She received a small director’s fee in 2006-2007. The business stopped operating years ago.
[31]T81
96 The plaintiff agreed that she told the vocational assessor she had a passion to work with children.[32] Dr Calic had not deterred the plaintiff from training in this field but she was concerned child services could involve manual handling of babies and children.[33]
[32]T79
[33]T76
97 The plaintiff is not the sort of person to do a “sitting down” job because of her sore back. That did not stop her at Frances Perry. It was her arm pain that stopped her working there as she had no strength in her arm.[34]
[34]T77
98 The plaintiff would like to go back to work if she could find something to work with her disability but she cannot find anything that does requires one arm or one hand.[35]
The Plaintiff taxable earnings
[35]T78
Financial Year
Plaintiff’s Earnings
2008-2009
$49,155
2007-2008
$51,957
2006-2007
$71,526
2005-2006
$68,534
2004-2005
$65,438
2003-2004
$62,068
2002-2003
$64,146
2001-2002
$61,585
99 The 2006-2007 taxation return set out earnings with the defendant of $24,602 and two separate amounts with Frances Perry of $29,706 and $17,218, making a total taxable income of $71,526.
Treating doctors
100 Dr Bhathawalla wrote to Cambridge in June 2009, noting the plaintiff had been under considerable stress at work due to a change in shifts, resulting in her being teary with depression. He had not been able to control that and had referred her to a psychiatrist.
101 Dr Bhathawalla reported in April 2010 that the plaintiff’s diagnosis had been a nondescript neck, back and shoulder pain as a direct result of an injury sustained on 9 May 2005. He noted that in 2008 the plaintiff was pushing some beds at work and that seemed to aggravate her pain.
102 Dr Bhathawalla noted, over a period of time, giving the plaintiff multiple medications and counselling had not helped her as much as regular massage, and the aim was to return her to work. At the end of the day, the massage therapy seemed to help with that. He noted, unfortunately, the plaintiff had to seek psychiatric assessment due to depression from the work-related stress.
103 Dr Bhathawalla then thought the plaintiff’s capacity for pre-injury duties would be difficult to estimate since she had good and bad days. He thought suitable duties for her would entail a less strenuous job with less physical involvement. He noted she was currently able to work but not lifting heavy things or pushing beds around, and he thought she would benefit from rehabilitation in the form of massage or physiotherapy to maintain mobility.
104 Dr Bhathawalla thought the plaintiff was not fit for her pre-injury employment but could certainly perform alternative duties such as clerical work for a short duration.
105 Dr Bhathawalla diagnosed back, shoulder and neck pain as a result of both degenerative changes and the fall in 2005. Pushing heavy beds and lifting things would certainly aggravate the plaintiff’s condition.
106 The plaintiff was initially referred to Mr de la Harpe in November 2006 with neck problems. He first saw her in February 2007.
107 Mr de la Harpe diagnosed degenerative cervical spine pain. He believed the plaintiff was currently fit for work but should not undertake occupations involving manual labour, repetitive neck movements or movements involving extension of the cervical spine. The prognosis was somewhat guarded and he believed the plaintiff would always suffer some neck pain and require conservative management.
108 Mr Justin Hunt, orthopaedic surgeon, first saw the plaintiff in July 2010.
109 The plaintiff gave him a history of the second incident and a history of heavy physical work with the defendant for at least thirty years.
110 Mr Hunt noted the ultrasound of 21 June 2010 of the right shoulder indicated a full thickness tear of the supraspinatus. He diagnosed symptomatic rotator cuff tear involving the right shoulder with progressive symptoms.
111 Mr Hunt ordered further investigations and explained to the plaintiff that she would benefit from a right shoulder arthroscopy subacromial decompression and a rotator cuff repair which he would organise once funding was received from WorkCover.
112 As of September 2010, Mr Hunt thought the plaintiff did not have a capacity to perform pre-injury employment or alternative duties.
113 Mr Hunt reviewed the plaintiff in September 2011. He then thought she was able to perform her work as a personal care attendant at Frances Perry. He noted she was only just coping with that work, 36 hours a week. She told him the work was light. Therefore, he thought she was fit for duties as a personal care attendant.
114 However, Mr Hunt noted if the plaintiff’s duties required overhead work or significant lifting work, then it was likely her symptoms would be aggravated. Therefore, he thought she was not fit for unlimited or unrestricted work as a personal care attendant. He confirmed his support for surgery.
115 There was a further review on 13 December 2011 after the Medical Panel had approved the right shoulder surgery.
116 Mr Hunt confirmed the plaintiff had a very significant tear of the right rotator cuff and explained to her the operative procedure proposed.
117 On 10 February 2012, the plaintiff underwent arthroscopic surgery on the right shoulder which showed a significant tear of the supraspinatus. A subacromial decompression was performed, removing large inferiorly projecting acromioclavicular joint osteophytes as well as anterior and lateral acromial spur (“the first surgery”).
118 On review on 20 February 2012, the plaintiff was doing well and was to remain in a sling for six weeks.
119 On re-examination on 2 April 2012, the plaintiff complained of right upper shoulder pain. On review on 24 July 2012, she was progressing slowly but had clinical manifestations of adhesive capsulitis. Mr Hunt therefore organised an ultrasound.
120 At that stage, Mr Hunt diagnosed impingement syndrome (subacromial bursitis and rotator cuff tendonitis) with tear of the rotator cuff, clinical presentation matching pre-operative imaging and intra-operative findings.
121 Mr Hunt then thought the plaintiff was not able to work as a result of her injuries, but it remained to be seen how she progressed.
122 Mr Hunt considered it prudent to perform a shoulder arthroscopy capsulotomy and manipulation of the shoulder to regain movement, and that procedure was carried out at Epworth on 19 November 2012 (“the second surgery”).
123 On review in late January 2013, the plaintiff was progressing quite well and the manipulation had improved her range of movement. Mr Hunt noted she was still significantly restricted with overhead activity which tended to cause increased pain and there was probably still dynamic impingement occurring in the shoulder as the capsule of the shoulder was still tight. He noted that tended to result in impingement with the arm in forward flexion and abduction movements.
124 Mr Hunt thought it was likely the plaintiff would still be limited in terms of her normal activities, such as dressing, attending to self-hygiene and also activities with overhead reaching.
125 Mr Hunt considered the plaintiff probably required retraining. Going back to the sort of work she was doing as a personal care attendant, particularly in a busy hospital, was likely to involve her having increased right shoulder pain due to overuse. The prospect of any further rotator cuff tear repair surgery being effective was not high.
126 Mr Hunt thought a change in normal occupation would be appropriate. He believed the plaintiff had a reduced capacity for work and did not think she should return to her pre-injury duties. He noted she may have reduced ability to perform full hours at work because her shoulder symptoms may worsen, even if she was doing a more sedentary type of job, particularly if repetitive movements were involved with the right dominant arm.
127 Mr Hunt would not rule out a further manipulation being needed. However, he thought the possibility was low. He expected the plaintiff’s condition to stabilise in four to six months.
128 On review in October 2013, Mr Hunt noted the plaintiff’s range of motion had gradually improved and overall, she was pleased with her recovery. However, over the last three months she felt her symptoms had recurred. He suggested further investigation, and saw the plaintiff again in November 2013. He noted the x‑rays showed an osteophyte in the glenohumeral joint. The supraspinatus tendon looked to be largely intact.
129 Mr Hunt explained to the plaintiff that an arthroscopy to look at the tendon itself would really be the only way to determine its exact state. He noted the wear of the tendon and the fact there was some wear in the shoulder itself was possibly enough to explain her symptoms. He thought they should see how things progressed over time and he did not make arrangements to see the plaintiff again.
130 Mr Hunt considered the organic basis for the plaintiff’s ongoing right shoulder pain was rotator cuff dysfunction and adhesive capsulitis.
131 Noting the plaintiff had not worked since the first surgery, Mr Hunt thought the plaintiff could potentially perform sedentary type work at reduced hours. Avoiding repetitive activities with her right upper limb, in particular avoiding lifting and overhead reaching were her limitations. He noted the MRI scan showed a spur or osteophyte at the inferior margin of the glenohumeral joint, indicating some wear of the glenohumeral joint itself, or arthritis. He thought there was no clear reason to perform further surgery.
132 Mr Hunt considered it was unlikely the plaintiff would return to paid employment. If she was able to find work for which she was appropriately educated and trained, which was sedentary in nature, working restricted hours would be his recommendation, as increased hours were likely to exacerbate her symptoms further. He thought this was a permanent situation.
133 The plaintiff’s general practitioner, Dr Calic, reported in April 2014.
134 Having recited the plaintiff’s treatment history, Dr Calic noted the plaintiff’s shoulder injury was caused by her work, which included repetitive lifting, pushing and pulling, and repetitive movements.
135 Dr Calic noted the plaintiff currently has chronic right shoulder pain, limited mobility and according to the last MRI scan, she has signs of osteoarthritis in the right shoulder.
136 Dr Calic thought the plaintiff has no current capacity for work.
137 In Dr Calic’s opinion, given her age, right shoulder pain, education, skills, limited level of English language, restrictions (not able to use right arm for lifting, pulling, pushing, repetitive movements), the plaintiff has no capacity for any suitable employment now or in the future.
138 Dr Calic considered the plaintiff needed to continue with gym and swimming activities and if her condition deteriorated in the future, she may need to have another operation. She did not expect any improvement in regards to the plaintiff’s condition but it was possible it may deteriorate.
139 Dr Calic noted shoulder pain on attendances on 25 October 2013, 22 November 2013, 20 December 2013, 21 January 2014, 3 February 2014, 12 March 2014 and 10 April 2014.
Investigations
140 There was an ultrasound of the right shoulder organised by Dr Bhathawalla on 21 June 2010.
141 It was reported there was a large full thickness tear of the supraspinatus tendon, subacromial bursitis and impingement, and probable degenerative change in the glenohumeral joint.
142 There was an x‑ray of the right shoulder and acromioclavicular joint organised by Mr Hunt in August 2010.
143 It was noted there were minor degenerative changes in the AC joint and greater tuberosity. A small subacromial bone spur arose from the inferolateral margin of the acromion and may encroach on the supraspinatus outlet. There was no AC joint instability and no rotator cuff calcification noted. Similar changes were noted in the left AC joint and greater tuberosity.
144 Mr Hunt organised an x‑ray of the right shoulder on 28 October 2013. There was reported small humeral and marginal glenoid osteophyte spurring and a minor irregularity at the greater tuberosity. There was mild AC joint arthrosis.
145 There was an MRI scan of the right shoulder organised by Mr Hunt on 28 October 2013.
146 It was reported that the status post rotator cuff repair was presumed related to the supraspinatus. There was a possible small interstitial myotendinous tear of the supraspinatus (versus expected post-surgical appearance). There was an interstitial tear at the infraspinatus myotendinous junction. There was no large re-tear and no current convincing MRI evidence of adhesive capsulitis. There was moderate AC joint arthrosis with minimal periarticular oedema.
147 There were investigations for unrelated matters; namely, a CT scan of the lumbar spine on 3 October 2006; a CT scan of the cervical spine on 6 November 2006; an MRI scan of the cervical spine on 5 December 2006; an x‑ray of the cervical spine on 23 January 2012 and an x-ray of the cervical lumbar spine on 28 June 2012.
Medico-legal evidence
148 Mr Charles Flanc, vascular and general surgeon, has examined the plaintiff on a number of occasions, initially in June 2010 and later on 28 October 2011, 18 January 2013 and 13 November 2013. Of most relevance are his two later examinations which followed the shoulder surgeries.
149 In his first report, Mr Flanc noted the plaintiff had complained of lower back and neck pain in 1993, 1994 and 1996.
150 On the most recent examination in November 2013, there was still some loss of bulk of the right deltoid muscle. There was limitation of right shoulder movement. Sensation to touch was slightly diminished circumferentially over the whole of the right upper extremity, exterior part of the right side of the chest and the right side of the face.
151 Mr Flanc noted, since the second surgery, the range of shoulder motion had since decreased.
152 Mr Flanc thought it appeared the plaintiff still suffered from some degree of adhesive capsulitis, although some of her restriction was also influenced by a Chronic Pain Syndrome.
153 Initially, he considered that some of the plaintiff’s symptoms were referred from her cervical spine but subsequently, the right shoulder pathology became a more significant factor. He thought, over the last year, the plaintiff’s symptoms had also been influenced by the second surgery but it was likely her condition had now stabilised and he doubted whether there would be any further improvement in her range of motion or pain.
154 Mr Flanc still considered the plaintiff’s symptoms were probably being influenced by non organic factors; namely, a Chronic Pain Syndrome associated with a psychiatric disturbance, but noted that was outside his expertise.
155 Mr Flanc still considered the plaintiff did not have a capacity for work which involved repeated bending, heavy lifting or repetitive elevation of her upper limbs or activities which involved maintaining her neck in one position for long times. He thought she had a theoretical capacity for light part-time work providing she could move around whenever her discomfort became more severe.
156 Mr Flanc noted on previous examinations, the plaintiff was considering doing a Certificate III in Children Services which would qualify her for some form of childcare but she had not done so because she did not believe she would be able lift children and therefore would not be able to get gainful employment in that field.
157 The plaintiff stated she would like to work in a restaurant, although she would not be able to do any manual work, such as lifting boxes or carrying heavy trays. Mr Flanc did not know whether there were any jobs in the restaurant industry which could be restricted to lighter duties, such as a cashier making bookings and other types of office duties.
158 If one took into account the plaintiff’s age and restrictions required to allow her to attempt light part-time duties, Mr Flanc thought it would be extremely difficult for her to find sustainable employment in the open market. He thought it may be more realistic to consider she had no current work capacity, and that was likely to persist.
159 Mr Garry Grossbard, orthopaedic surgeon, first examined the plaintiff in August 2011 and re-examined her post surgery in December 2012 and in October 2013.
160 Mr Grossbard thought the plaintiff had a rotator cuff tear, but most of her symptoms related to her neck and lumbar spine. He noted when he first saw the plaintiff, although she had shoulder pathology, it was not the major consideration. The development of capsulitis and the failure to improve at all following surgery supported that contention.
161 Following the December 2012 examination, Mr Grossbard described how the plaintiff now suffered not only with her neck but also with post-surgical capsulitis, from which she was recovering. Because the impairment in relation to her shoulder injury was largely dependent on range of movement, Mr Grossbard thought it would not be reasonable to suggest the situation was anywhere near stabilised. He diagnosed multilevel disc degeneration following the second incident, in relation to which there should be conservative treatment.
162 Mr Grossbard thought the plaintiff was not able to undertake her pre-injury work as a clinical services attendant. In his view, she could probably undertake simple sedentary activity provided she had the facility to move around and could have limited hours with regular breaks. He was concerned about the prognosis for the plaintiff, whose general condition had deteriorated since seen in September 2011, particularly since the first surgery.
163 Mr Grossbard thought it would be at least six months before one could say the situation was stable following shoulder surgery. He noted in particular, the surgery was for a capsulitis which, in itself, was a condition with very slow recovery potential.
164 On re-examination in October 2013, Mr Grossbard confirmed his earlier diagnosis that the plaintiff was suffering with injuries to her back and neck and a surgically treated injury to the right shoulder with ongoing dysfunction.
165 Whilst Mr Grossbard believed the plaintiff had a work capacity for simple sedentary duties not requiring heavy lifting or working at or above shoulder height, the loss of her employment, together with her injuries and the fact she is now sixty-one, made it very unlikely she was going to return to the workforce in the foreseeable future. Whilst he thought the plaintiff was not fit for her pre-injury work, he thought she had some capacity for lighter duties as outlined.
166 Mr Grossbard did not think any further specific treatment was required other than an active exercise program and medication.
167 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff in December 2012.
168 Dr Thomas thought the plaintiff had developed symptomatic spondylosis of the cervical and lumbar spine. In addition, she had developed symptomatic rotator cuff disease in her right shoulder. He noted she had had surgery complicated by an episode of adhesive capsulitis and that the recent surgery to date appeared to have been relatively successful.
169 Dr Thomas thought the plaintiff could not return to pre-injury duties with the defendant.
170 In Dr Thomas’ view, the plaintiff was able to perform suitable employment. He noted she remained at work at Frances Perry, increasing her hours to 36, right up to the first right shoulder surgery. He noted, although it was too early to call with respect to the full outcome of the recent operation of the right shoulder, taking into account her ability to work with a large rotator cuff, right up until the surgery took place, the plaintiff could return to such duties currently.
171 Dr Thomas thought an ongoing strengthening program to the right shoulder was appropriate, together with range of motion exercises. He considered it too early to call with respect to the ultimate outcome of the right shoulder. He thought a further five months was likely to be required, taking into account six months post operation to determine the full outcome of the right shoulder problem.
172 Dr Thomas thought the plaintiff’s condition was organically based. Although she did become distressed at the perceived treatment by the defendant, the nature of the plaintiff’s underlying condition was organic and not psychological in origin. Mr Thomas thought it almost certain the plaintiff would have ongoing pain and associated disability to her cervical and lumbar spine.
173 On re-examination in November 2013, Dr Thomas confirmed the plaintiff had a work capacity, albeit limited. He thought the sum total of her overall condition, being the right shoulder, neck and lower back, left her with incapacity to perform unrestricted full pre-injury work duties.
174 From the right shoulder point of view, Dr Thomas thought the plaintiff had a limit in lifting above chest height. He thought she had limitations in lifting heavy objects. He accepted she could lift 5 kilograms with her shoulder close to her side but he thought lifting and going beyond a 45 degree angle at flexion and 30 degrees in abduction was likely to be problematic.
175 As far as working as a personal care attendant, Dr Thomas thought the plaintiff would have difficulties performing the heavier chores, particularly mopping, vacuuming, moving patient beds or patient transport in general, which he thought would lead to an aggravation of her neck and lower back.
176 If the plaintiff were performing non physically based work, Dr Thomas thought she had a work capacity, but noted she had never performed such work duties previously. Performing sedentary type work duties, the plaintiff, in his view, could work full time. Performing work which was physically based, lifting 5 kilograms frequently between chest and waist height in a position that allowed her to alter her posture frequently, he thought she could work in the vicinity of 20 hours a week.
177 Dr Thomas confirmed the nature of the those restrictions were based purely on the basis of the plaintiff’s organic problem and he thought the sum total of her condition and noting her age and previous work experience, meant she did not have a capacity for work, and that would be indefinite.
178 Dr Slesenger, specialist occupational physician, examined the plaintiff in April 2014.
179 On examination of the right shoulder, there was tenderness and restricted range of movement. Wasting was noted around the deltoid and the posterior aspect of the shoulder around the supraspinatus and infraspinatus muscle. Dr Slesenger did not identify any non-organic features and noted the plaintiff’s impairment and disability had an organic basis.
180 Dr Slesenger diagnosed a rotator cuff injury to the right shoulder and also adhesive capsulitis but he thought, on examination, it was apparent most of the capsulitis had settled.
181 Dr Slesenger noted the plaintiff had had right shoulder symptoms since the second incident, and serial examinations, investigations and surgical review had identified evidence of right shoulder pathology.
182 Dr Slesenger thought the plaintiff was unfit to return to pre-injury duties. He noted her restricted range of shoulder movements and limited capacity to use her right arm, as well as her functional limitations.
183 Given the heavy functional requirements associated with her job demands, Dr Slesenger thought the plaintiff could not perform her pre-injury duties and she was able to perform work – alternative duties – within the following restrictions: namely:
§ no right hand work
§ no over shoulder reaching
§ no forward reaching beyond 50 centimetres
§ adjusting posture as required
§ three hours, three days a week; and
§ no driving.
184 Dr Slesenger noted, however, the plaintiff’s shoulder symptoms were not isolated and there was some associated neck impairment. He thought the combination of the two was affecting her function; eg her driving capacity. Finally, he noted the combination of the plaintiff’s shoulder disability and other functional limitations (due to back pain) would limit her further and preclude her from working.
185 Dr Slesenger thought the plaintiff required a self-managed exercise program and general practitioner support and medication.
186 Dr Slesenger considered the prognosis was poor, noting the plaintiff had multiple sites of pathology, the combination of which were affecting her functional capacity. He did not anticipate she would be able to return to work in an open job market and he believed she would have ongoing impairment with regard to her domestic tasks.
Vocational assessment
187 Bill Radley, psychologist and vocational assessment specialist, carried out a vocational assessment on 6 February 2014.
188 With her existing qualifications, skills and experience, injury and physical limitations, Mr Radley assessed the plaintiff had no current capacity to return to pre-injury or similar work, no capacity to return to any form of type of alternative employment, no capacity to undertake any type of occupational retraining and no capacity for any type of employment in the future. He thought she may benefit from a further referral to a multidisciplinary pain management program and a referral to a psychologist skilled in treatment of mood disorders, injury adjustment and pain management.
189 The ANZSCO Classification of Occupations, First Edition, Revision 1, superseded the classifications relied upon by Nabenet. Enquiry clerk required a further qualification of an AQS certificate or at least one year’s relevant experience and a café and restaurant manager also needed an AQF associated degree and an advanced diploma of training.
The Defendant’s medical evidence
190 On 22 April 2009, Dr Bhathawalla noted the plaintiff was stressed and upset, on changed roster and unable to cope and wanted antidepressants.
191 Dr Datta, psychiatrist, examined the plaintiff on referral from her general practitioner in May 2009 for stress related to changes in her shift with the defendant.
192 Two weeks before the end of long service leave, the plaintiff had received a letter from the defendant stating that she would be returning to the 9.00am shift, and she was quite upset about that. The change would also affect her second job and looking after her grandchildren.
193 Dr Datta thought the plaintiff was going through an Adjustment Disorder with Depressed Mood in the context of difficulties she was encountering with her desires and that of the defendant’s management.
194 Dr Datta suggested to the plaintiff that it was wise for her to make a choice one way or another and given the other job seemed to be better paid and suiting her a little better in relation to lifestyle, the plaintiff should choose to leave the defendant. He noted, however, that was a decision that she would decide after consultation with her husband and the general practitioner and she was hopeful of being able to go off on WorkCover. From his side, he did not feel he could support the plaintiff doing that for psychiatric reasons.
195 Dr Calic noted on examination on 27 September 2013, the plaintiff had ongoing right shoulder, neck and low back pain.
196 On 20 February 2014, Dr Calic noted the discussion about the possible return to work:
“Plan made to try to explore and try to do retraining in job within the patient’s capacity. Patient not to do lifting with right arm or repetitive movements, bending, prolonged standing or sitting. Different jobs discussed.”
197 On 10 April 2014, Dr Calic noted:
“… increasing pain in the right shoulder. Cannot sleep at night, also neck pain, low back pain and in both hips.”
Medico-legal evidence
198 Mr Stapleton, plastic and hand surgeon, saw the plaintiff in September 2008 in relation to her carpal tunnel syndrome complaint.
199 The plaintiff was examined by psychiatrist, Dr Senadipathy, on 15 July 2009. No mention was made in that report of any shoulder problems.
200 In his supplementary report of 29 July 2009, Dr Senadipathy thought, as far as the plaintiff’s mental health was concerned, she could return to her current workplace, including the Royal Children’s Hospital, and she should be encouraged to resolve the dispute with management by being flexible and accepting rules and regulations.
201 Dr Fraser, rheumatologist, examined the plaintiff in April 2011. He noted on examination, movements of the shoulder were not restricted or painful except for loss of internal rotation, with some discomfort. There was some overreaction on physical examination.
202 Dr Fraser did not consider there were any work-related injuries in this case. Rather, the plaintiff had age-related degenerative changes at various sites including her neck, shoulders and low back. Possibly there may have been some temporary symptomatic aggravation in the affected areas from time to time but he thought they would have settled within weeks.
203 Dr Fraser noted there appeared to be some overreaction on physical examination, leading to a suspicion that the plaintiff may be exaggerating her current symptoms and signs. In his view, non organic factors may well be responsible for pain amplification.
204 In any event, Dr Fraser noted the plaintiff’s current symptoms did not appear to be causing any significant incapacity for her continued employment as a PSA with a different employer. He considered the plaintiff was fit for her pre-injury work or for any other employment for which she was otherwise suited. She required no treatment for any putative work-related conditions and specifically, he did not consider she required shoulder surgery.
205 Dr Barton, consultant occupational physician, initially saw the plaintiff on 18 June 2010.
206 In a later supplementary report in November 2010, Dr Barton advised he did not believe there was justification for the shoulder operation being undertaken, noting that the plaintiff’s history of symptoms did not fit well with a straightforward simple shoulder problem.
207 The plaintiff was re-examined by Dr Barton in January 2013.
208 A specific examination of the right shoulder showed generalised tenderness around the glenohumeral joint area. There was a marked reduction of all movements to less than about half the expected range and there was reported pain and grimacing. There was also generalised tenderness of the back and neck.
209 There was a global reduction in muscle power throughout the right arm and right leg, inconsistent with any muscular or neurological problem. Sensory changes noted on the right leg were also inconsistent with any particular neurological condition.
210 On initial examination and re-examination, Dr Barton felt the plaintiff’s problem was more functional rather than physically based.
211 Dr Barton noted the plaintiff had undergone surgery on two occasions. Based on her description of subsequent symptoms, it appeared to be fairly unsuccessful. He noted that was not particularly surprising as surgery was invariably not successful where there were functional features playing a part.
212 Dr Barton noted there was a “new problem” with the apparent fall in May 2005. He found it surprising the plaintiff did not mention that when he saw her in 2010, and he recorded specifically she had said there were no other or previous back problems.
213 Dr Barton noted the plaintiff’s examination findings showed a considerable degree of functional overlay. Investigations reported a variety of underlying problems, fairly typical of someone in her age group. He did not see her radiology as necessarily representing this sequelae of the fall or the work activities described.
214 Presumably, the shoulder surgery was accepted as part of a compensation claim, so Dr Barton’s diagnosis of the matter would be one of persisting shoulder dysfunction following surgical treatment for an apparent soft tissue injury. Dr Barton was not convinced there was any clear physical evidence of any back or neck problem that he would relate to employment or the fall as described.
215 Dr Barton would be very guarded about the plaintiff’s prognosis because of the degree of functional overlay, and he did not believe she really required any treatment.
216 Dr Barton was not convinced that there was any significant incapacity for work as a result of any particular work injury. He noted the greater muscle bulk in the right arm suggested that it was the dominant and more used, despite the plaintiff’s complaints of significant pain and limited movement.
217 For the reasons mentioned, Dr Barton would be hesitant to attribute any particular loss of body function or impairment to any compensable injury.
218 On re-examination in January 2014, the plaintiff reported that her problem was either much the same or worse, and she said she had episodes of really severe pain, especially at night.
219 Again, there were findings of generalised tenderness and grimacing and complaining of pain on shoulder movement.
220 Dr Barton noted on all the times he had seen the plaintiff, she presented with a range of features that pointed towards a significant non-functional component to her problems. He did not believe there was any clear evidence of a justifiable claim for her neck and back.
221 Post shoulder surgery, Dr Barton felt the most appropriate diagnosis was one of persisting dysfunction following surgery. He doubted any further surgery would make any difference. He noted the considerable features of illness behaviour made it unlikely anything was really going to make any difference. He thought the plaintiff appeared well entrenched in the sick role, with little likelihood of ever really moving on from these apparent difficulties.
222 Dr Barton noted the plaintiff was claiming that the general nature of her work led to her ongoing problems. He thought, this being the case, it would be quite reasonable to argue medically that, having ceased that work some years ago, her symptoms should have settled, but it appeared they were getting worse.
223 For the reasons discussed, Dr Barton did not accept what happened in either incident contributed to any ongoing problem. If these episodes were of such note to have caused either eight years or six years of problems, then far more significant problems would have been apparent in the immediate post incident period.
224 Overall, Dr Barton believed the plaintiff’s prognosis was poor, particularly in view of the features of overlay, her strong illness belief and time away from the workforce. From a simple physical point of view, he did not believe that there was any particular problem that was likely to have any long term physical impact on her and he did not believe she required any treatment.
225 Dr Barton was not convinced that there was any significant incapacity for work as a result of any particular work injury. He noted the greater muscle bulk in the right arm suggested it was the dominant and more used arm, despite the plaintiff’s complaints of significant pain and limited movement. From a physical point of view, Dr Barton could see no particular reason the plaintiff could not return to suitable duties because she could undertake much of what would normally be considered to be the duties of a PSA or a hospital ward assistant.
226 Dr Barton did not believe there was any loss of body function or impairment for any claimed back or neck injury. He would accept that having had surgery, there was some minor limitation in regard to the plaintiff’s shoulder situation.
227 Dr Barton provided a supplementary report on 26 May 2014. He agreed with Mr Hunt that the MRI scan suggested that the pre-operative problems had mostly resolved and that was a reasonable conclusion, particularly as the right arm was of much greater muscle bulk than the left, suggesting it was still used as the dominant arm. He could see nothing in the x-rays of the neck and back to suggest the plaintiff had a work-related neck or back injury.
228 Having reviewed the jobs listed in the vocational assessment, Dr Barton could see no medical reason why the plaintiff could not return to do those.
229 Michael Dooley, orthopaedic surgeon, examined the plaintiff in October 2010 and in December 2013, post surgery.
230 Mr Dooley concluded the plaintiff had naturally-occurring degenerative disc disease of the lumbar spine and naturally-occurring rotator cuff disease of the right shoulder. He believed that the second incident aggravated the disease in both areas.
231 Mr Dooley remained of the view that the rotator cuff tear he noted on radiological investigation was part of the natural evolution of degenerative rotator cuff disease. He did not believe the plaintiff sustained a so-called traumatic tear in the second incident or in previous falls.
232 Mr Dooley noted, when he saw the plaintiff first in October 2010, she was coping reasonably with her right shoulder girdle pain. She had a good range of shoulder movement. Physiotherapy had not helped, but massage had given some improvement. She commented she had become anxious and depressed.
233 The plaintiff did not feel the first operation gave her any lasting improvement and she had a similar reaction after the second surgery. She described ongoing right shoulder girdle pain.
234 Clinical examination in December 2013 revealed significant restriction of active motion of the shoulder. Mr Dooley noted there were inconsistent signs in relation to attempted passive motion of the shoulder.
235 In Mr Dooley’s view, this inconsistency reflected the plaintiff’s psychological reaction to a situation rather than to organic shoulder pathology. He thought it clear that further surgery would not predictably improve the plaintiff’s symptoms. He thought it reasonable for her to take simple analgesia and sedative medication at night, and that general exercise and gymnasium would be helpful for her.
236 Mr Dooley found there were inconsistent clinical signs in relation to the back, again in keeping with the psychological reaction.
237 It was clear to Mr Dooley that since the last review, the plaintiff’s understandable psychological reaction to her situation was playing a more prominent role in her ongoing symptoms.
238 From an orthopaedic viewpoint only, Mr Dooley expected the plaintiff to note some ongoing intermittent low back pain. He would not expect her lumbar condition to deteriorate in time. In relation to the right shoulder, he believed the plaintiff would continue to note intermittent right shoulder girdle pain. He thought she would continue to note difficulty with a lot of activity at and above shoulder level, and she would continue to have some intermittent nocturnal pain. He thought her underlying degenerative rotator cuff disease would continue to evolve slowly in time.
239 In Mr Dooley’s view, the plaintiff would not be able to carry out heavy physical work or work that involved a lot of bending, twisting and lifting. She would not be able to carry out work that involved a lot of activity at and above shoulder level.
240 Mr Dooley thought the plaintiff had the physical capacity to work as a clerk, café supervisor, canteen assistant and retail assistant. She would not be able to carry out all of the duties of an after school assistant.
241 Dr Michael Baynes, occupational physician, examined the plaintiff in January 2014.
242 At that time, the plaintiff advised she had continuous pain in the right shoulder, mainly over the supraspinatus muscle, radiating into the neck and radiation of pain into the back. She also advised of continuous neck pain that was worse with movement. She also had central lower back pain.
243 On examination, all movements of the right shoulder were limited by pain.
244 Dr Baynes thought the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic right shoulder pain with restricted movement. That was in association with the rotator cuff tear repaired with arthroscopic surgery. Dr Baynes thought there was evidence of abnormal illness behaviour. He noted the plaintiff also reported neck and back pain.
245 Dr Baynes thought functional tolerances were limited to lifting no greater than 5 kilograms and no lifting from below knee height or above shoulder height and where there was no forceful pushing or pulling with the right shoulder. He thought the plaintiff should not have to lift above shoulder height and she should not be involved in any repetitive actions across the right shoulder. Sitting, standing and walking was limited to 30 minutes, as was driving.
246 On the basis of the plaintiff’s functional tolerances, Dr Baynes believed she was fit for work on a limited hours’ basis, working three hours, three days a week.
247 Dr Baynes believed the jobs of sales assistant, integration aide, canteen assistant, school crossing supervisor, café supervisor and outside school hours care worker were appropriate within those restriction. In particular, he thought the plaintiff was not fit to undertake physical handling of a patient or children in terms of working as an integration aide.
248 Dr Baynes thought the swimming program could cease after six months and then the plaintiff should transfer to a self-managed home exercise program, noting her diligence to date.
249 Dr Baynes thought there was a 50 per cent relationship between work and non-related factors. He considered there was still ongoing pain and limitation of movement and function, which affected activities of daily living in terms of the right shoulder and that also interacted with neck and back pain, again with physical restriction in terms of lifting and bending.
250 Dr Baynes considered employment and also age-related degenerative change was a cause in the plaintiff’s shoulder condition, noting she denied any past history of similar symptoms.
251 In a supplementary report, having received the NES refresher report of January 2014, Dr Baynes advised he believed retail sales assistant, before and after school care assistant, canteen assistant, information officer, enquiry clerk and café supervisor were appropriate, taking into account the restrictions he had imposed and confirmed the hours suggested in his earlier report.
Vocational evidence
252 A job seeker plan compiled by Nabenet in October 2013 suggested suitable jobs for the plaintiff were retail sales assistant, integration aide, canteen assistant, school crossing supervisor, café supervisor and outside school hours care worker. These jobs had been recommended by Nabenet on 24 June 2013 in an NES re-education assessment report and a job seeker plan.
253 Nabenet provided an NES refresher assessment report and plan dated January 2014. Identified suitable employment options in order of priority were: retail sales assistant; before or after school care assistant; canteen assistant; information-enquiry clerk and café supervisor. Weekly wages for those jobs were as follows:
Retail sales assistant $777
Before and after school care assistant $730
Canteen assistant $750
Information officer $1,000Café supervisor $1,050
Correspondence
254 By letter dated 30 April 2009, the plaintiff advised the defendant that she strongly opposed the decision of April 2009 to change her shift hours and she did not wish to accept the offer. She wished to continue normal hours of 6.30am to 2.30pm which she had been doing the last twenty nine years. She hoped the offer could be reviewed and she returns to her former hours.
255 By letter in August 2009, the plaintiff advised the defendant she was formally tendering her resignation as a PSA. She noted, although she had had the pleasure of working with the defendant over the past twenty nine years, unfortunately, due to recent unforeseen circumstances, she had to part ways with the defendant.
Claim documentation
256 The plaintiff lodged a number of claims during the 1980s about which she was cross-examined.
257 The plaintiff completed a Claim Form in relation to the first incident on 30 May 2005 when she described falling as she stood on a chair to clean the windows. She described the injury as left arm nerve in the neck and left hip. There was a staff accident report in relation to the first incident.
258 The plaintiff signed a Claim Form on 31 July 2007 relating to the second incident in which she set out she was pushing a traction bed, the patient was too heavy and the wheels jammed. She felt sharp pain in her right groin, shoulders and back and she had pins and needles.
Loss of earning capacity
259 To obtain leave in relation to loss of earning capacity, the plaintiff must 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).
260 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.
261 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
262 “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.
263 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.
264 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 - Barwon Spinners Pty Ltd & Ors v Podolak.[36]
[36](supra) at paragraph [70]
265 I am therefore required to determine a “without injury” earnings figure.
266 Counsel for the plaintiff submitted $71,000 was the appropriate figure, being the plaintiff’s total earnings with the defendant and with Frances Perry in the 2006-2007 financial year. During that year, the plaintiff had demonstrated the capacity to work 70 hours per week.[37]
[37]T104
267 Sixty per cent of that figure is $42,982 or $826 per week.
268 Counsel for the defendant submitted the burden of establishing pecuniary loss is heavy, as Judge Jordan described in Elias-Mikre v The Royal Melbourne Hospital.[38]
[38][2013] VCC 1860 at paragraph [64]
269 It was submitted the appropriate figure was the plaintiff’s earnings in 2006-2007 from Frances Perry alone totalling $46,924,[39] as the plaintiff left the defendant for reasons unrelated to her shoulder history.[40]
[39]T91
[40]T92
270 Sixty per cent of that amount is $28,154 or $541 per week.
271 I prefer the figure suggested by Counsel for the plaintiff as most fairly reflecting the plaintiff’s “without injury” earnings. It is her actual demonstrated earning capacity before increasing shoulder problems ultimately leading to surgery.
272 That figure is to be compared to the plaintiff’s “after injury” earnings.
Credit
273 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[41]
“… 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.”
[41](2010) 31 VR 1 at paragraph [12]
274 The plaintiff’s credit was the main focus of cross-examination. It was submitted the plaintiff had been less than forthright in her evidence[42] and that certain matters were either absent from her affidavits or had been glossed over.[43]
[42]T31
[43]T31
275 In these circumstances, it was submitted I should be somewhat circumspect about the plaintiff’s evidence as to her work capacity.[44]
[44]T95
276 Further, although pain and suffering had been conceded, Counsel for the defendant submitted the plaintiff was not in that much pain when giving evidence and her medication regime was relatively minor.[45]
[45]T103
277 I accept the submission by Counsel for the plaintiff that the affidavits were uncontradicted and not tested as to the nature and extent of the plaintiff’s pain, soreness, restriction and limitation of movement.[46]
[46]T103
278 Obviously, a serious injury in relation to pain and suffering consequences has been conceded.
279 I found the plaintiff to be a truthful witness who did not overstate the extent of her pain and restriction. She is a woman who has demonstrated a very strong work ethic all her life, having been employed by the defendant for nearly thirty years and for some years also working at Frances Perry.
280 I accept that the plaintiff’s presentation was straightforward, she did not “quibble” about things and she was direct.[47]
[47]T106
281 Further, there was no surveillance film shown, nor was there any comment by a medical examiner that the plaintiff was embellishing or exaggerating her symptoms.
282 I accept that the plaintiff is significantly compromised in her ability to perform manual work involving her right dominant arm. In particular, overhead activity is difficult.
283 Counsel for the plaintiff submitted the plaintiff does not have any realistic capacity for work such that she would not suffer the requisite loss.[48]
[48]T104
284 Clearly, since the two operative procedures, the plaintiff has been left with residual symptoms and disability which has resulted in ongoing permanent right shoulder impairment, conceded by the defendant, and also resulted in a substantial restriction in her employment capacity.
285 In my view, the plaintiff, who is now aged sixty-two, has a very limited capacity for suitable employment, such that she will suffer the requisite loss of earning capacity on a permanent basis.
286 I accept that the plaintiff is motivated to return to work if a suitable job, not involving use of her right arm, could be found. She has not retired and does not enjoy staying at home with her husband.
287 The consensus of medical opinion is that the plaintiff no longer has the capacity to engage in her pre-injury employment or unrestricted physical work. Dr Barton is alone in the view that the plaintiff could return to her duties at Frances Perry.
288 Obviously, medical opinions expressed in this regard since the second surgery are relevant.
289 Such opinion falls into three categories: no capacity for suitable employment – Dr Calic, Mr Flanc and Dr Thomas; a capacity for alternative work on restricted hours – Mr Hunt, Mr Grossbard, Dr Baynes and Dr Slesenger (nine hours per week), and a capacity for full-time light duties – Mr Dooley.
290 In my view, at best, the plaintiff would have the capacity to work limited hours a couple of days a week in the terms suggested by the occupational physicians, Dr Baynes and Dr Slesenger.[49]
[49]T105; Giankos v SPC Ardmona Operations Limited (2011) 34 VR 120
291 Whichever “without injury” earnings figure is used, $826 or $541, the plaintiff has suffered the requisite loss, working only nine hours per week.
292 The plaintiff is now sixty-two. She has limited formal education and has worked in personal care work for the last thirty years.
293 I accept that some duties in the jobs suggested in 2014 are inappropriate as they require physical deftness and capacity with respect to both upper limbs.[50]
[50]T113
294 The role of sales assistant includes duties moving stock and assisting with wrapping and packing goods sold.
295 Work in the catering field as a canteen assistant or supervisor would be unsuitable for the plaintiff, as it would require repeated and at times heavy use of the right arm lifting and carrying trays and other items.
296 The plaintiff would have difficulty physically managing children if working as an integration aide or a before and after school care assistant.[51]
[51]T115
297 The plaintiff does not have the necessary training, aptitude or experience for work as an information officer, lacking the required diploma and degree of computer skills.
298 I am not satisfied the plaintiff has any particular aptitude for jobs involving computer skills or any other sedentary work. There is no demonstrated aptitude for anything other than physical and less skilled work.
299 In these circumstances, I am satisfied the plaintiff has suffered the requisite loss of earning capacity.
300 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
301 Counsel for the defendant submitted the plaintiff had not discharged the heavy onus of establishing an inability to be retrained or rehabilitated. Apart from a short computer course, she has made no attempt to retrain herself.[52] She cannot be said to be totally uneducated and she has a number of skills as set out in her résumé.
[52]T98
302 It was submitted the plaintiff had to do a bit more than look at the jobs suggested – she had to “come out of retirement and make a bit of an effort. She had not done that.”[53]
[53]T102
303 However, I accept the plaintiff has cooperated with Nabenet. It is significant that this organisation with whom the plaintiff has been involved for about two years has not suggested there is any retraining appropriate for her.
304 Further, Mr Radley, vocational assessor, thought there was no capacity for occupational retraining and it was not a viable option for the plaintiff.
305 In my view, the plaintiff is a poor candidate for rehabilitation. Now aged sixty-two, she is poor at spelling and writing she has limited computer knowledge despite having done a short computer course.
306 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 her 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).
307 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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