Ozen v Associated Controls Australia Pty Ltd

[2018] VCC 537

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-01371

SERPIL OZEN	Plaintiff
v
ASSOCIATED CONTROLS AUSTRALIA PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 24 November 2017
DATE OF JUDGMENT:	3 May 2018
CASE MAY BE CITED AS:	Ozen v Associated Controls Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 537

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – bilateral shoulder injury – whether left shoulder injury is compensable – paragraph (a) – pain and suffering and pecuniary loss.

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Hunter v Transport Accident Commission [2005] VSCA 1; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Wilson v S T Hamilton & Sons Constructions Pty Ltd [2016] VCC 1448; Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511; Humphries & Anor v Poljak [1992] 2 VR 129; Lakic v GB Galvanizing Service Pty Ltd & Anor (unreported VCC, 23 November 2001, No 2000 of 05195); Baltruschaitis v G & K O’Connor Pty Ltd (unreported, VCC, 16 May 2001); Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800; Ristovska v VOA WebCo Pty Ltd [2010] VCC 152; Wright v Mount Edisar Pty Ltd [2006] VCC 410; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805; Nguyen v Aisin Australia Pty Ltd [2012] VCC 799; Cartes v Silcraft Pty Ltd [2011] VCC 1502

Judgment:                 Leave granted to the plaintiff to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” in respect of her left shoulder injury and her right shoulder injury arising out of or in the course of her employment with the defendant. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards QC with Mr L B R Allan	Zaparas Lawyers
For the Defendant	Ms D Manova	Hall & Wilcox

HIS HONOUR:

1 By way of Originating Motion, Serpil Ozen (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for injuries to her left and right arms or, more particularly, her left and right shoulders (“the injury”) suffered by her during the course of her employment with Associated Controls Australia Pty Ltd (“the defendant”).

2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.

3       The plaintiff gave evidence and was cross-examined.  Both parties tendered a number of documents.[1]

[1]See Annexure A

Relevant legal principles

4       The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]

[2]See s134AB(19)(a) of the Act

5       The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. This paragraph reads:

“serious injury means —

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

6       The part of the body said to be impaired for the purposes of paragraph (a) is the bilateral use of the shoulders, or alternatively, the right arm and or the left arm.

7       In order to succeed, the plaintiff must prove, on the balance of probabilities, that:

(a)“the “injury suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999;[3]

(b)“the injury” and the resulting impairment under paragraph (a) must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]

(c)the “consequences” to the plaintiff of the injury in relation to “pain and suffering” and “pecuniary loss” must be “serious” – that is:

“… when judged by comparison with other cases in the range of possible impairments … as the case may be … [can be], fairly described as more than significant or marked, and as being at least very considerable.”[5]

[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622

[4]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]

[5]See s134AB(38)(b) and s134AB(38)(c) of the Act

8 Section 134AB(38)(b) provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker suffers a serious injury pursuant to sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for recovery of “pain and suffering damages” only. The worker who satisfies the loss of earning capacity requirements of s134AB is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[6]

[6]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]

9       In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[7] to establish:

(a)generally, that as at the date of hearing, he or she has a loss of earning capacity of 40 per cent or more measured as set out in paragraph (f) of s134AB(38) of the Act;[8]

(b)after the date of hearing, he or she has to establish he or she will continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.

[7]See s134AB(19)(b) and s134AB(38)(e) of the Act

[8]See s134AB(38)(e)(i) of the Act

10      In determining the application, the Court:

(a)must not take into account psychological or psychiatric consequences of the back injury for the purposes of paragraph (a) of the definition of “serious injury”;[9]

(b)must make the assessment of “serious injury” at the time the application is heard;[10]

(c)must give reasons to disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[11]

[9]See s134AB(38)(h) of the Act

[10]See s134AB(38)(j) of the Act

[11]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]

The issues

11      Those acting for the plaintiff contend that the plaintiff has suffered rotator cuff tears to each shoulder which have been caused, or at least aggravated by, the type of work she was performing with the defendant, which involved manual repetitive work.  Those acting for the plaintiff also contend that such condition renders the plaintiff effectively incapable of performing any type of work.

12      When queried by the Court as to what were the issues, counsel for the defendant stated:

(a)The defendant denies that the plaintiff ever suffered any compensable injury to her left shoulder and to the extent that she suffers symptoms in that shoulder, such symptoms arise from an underlying constitutional condition;

(b)Although the defendant accepts that the plaintiff suffered compensable injury to her right shoulder in the form of an aggravation, such aggravation was only temporary and that she suffers no ongoing work-related condition;

(c)That in any event, the defendant would contend that the left and right shoulders should be assessed as separate body functions, and that any injury to the left shoulder and any injury to the right shoulder cannot be aggregated to establish a serious injury.  Reference was made to the relatively recent decision of Carbone v Toyota Motor Corporation Australia Ltd;[12]

(d)The defendant would also submit that it is necessary for the plaintiff to “disentangle” any organic condition in relation to any injury to either shoulder and her psychological state;

(e)The defendant also submitted that the plaintiff had not complied with s134AB(38)(g) of the Act and that, accordingly, cannot satisfy the pecuniary loss requirements under the Act;

(f)Counsel for the defendant also stated that although credit is “perhaps not so much” in issue, but rather “reliability”, and in this respect, counsel made reference to the observations made by the treating doctors of the plaintiff in relation to variability of symptoms.

[12][2017] VSCA 249

The evidence of the Plaintiff

13      The plaintiff relies on affidavits sworn by her on 5 December 2016 (“the first affidavit”), 17 August 2017 (“the second affidavit”) and on 10 October 2017 (“the third affidavit”).[13]  I was informed by Senior Counsel for the plaintiff that although the plaintiff had been in Australia since 1986 there may well be occasional words where an interpreter was required.  I also note that the affidavits were sworn through an interpreter.  In the circumstances, I permitted an interpreter to be sworn to assist the plaintiff.

[13]See exhibit 1 at pages 1-15 of the Plaintiff’s Court Book (“PCB”)

14      The plaintiff gave evidence that she swore the three affidavits and overnight those affidavits had been read to her and that the contents were “true and correct”.[14]

[14]See Transcript (“T”) 18, Line (“L”) 15-18

15      By way of her first affidavit, the plaintiff gave the following evidence:

·She was born in Turkey on 15 December 1967 and attended school until Year 8, when she ceased at her father’s request.  After that, she helped around the house, before being married in Turkey in 1985.

·She came to Australia in 1986 with her husband and they have two adult children.

·On arriving in Australia, she did some work making gloves at Ansell, and then worked for ACL making car parts. 

·Her husband was working for the defendant and he assisted her gaining employment with the defendant in around 1985.[15]  The plaintiff did a number of different things over her times at Mills Rubber, including process work, assembly work, packing work and working as a machine operator.

[15]The plaintiff refers to the defendant as Mills Rubber

·In about 2001, she went overseas for two years, then came back and commenced work part time in childcare and about three and a half days a week.

·She then resumed employment with the defendant in or around January 2007 and worked full-time hours with a bit of overtime “here and there”.  She describes her duties with the defendant, after resuming in January 2007, in the following terms:

“12.   I did picking and packing for about two years.  This was a pretty heavy job since I had to lift some large boxes that weighed quite a lot.  Then I went onto the assembly line.  I spent most of the rest of my time at Mills Rubber on the assembly line, with a bit of picking and packing work every now and then.

13.    Working on the assembly line was quite strenuous.  I spent all day putting pieces of rubber onto cables.  I would have to fetch the boxes full of supplies and parts for the day.  I estimate that I would lift around 40 or 50 boxes a day.  I estimate that the boxes weight (sic) around 10-15kg.  I could use a trolley to transport the boxes, but I would need to lift them on and off the trolley by myself.  Sometimes I would get help from others to lift the boxes but a lot of the time I did it alone.  There were quotas in place that were meet to (sic) I had to do everything quickly.  All the lifting of boxes put a lot of strain on my right arm.

14.    I would also have to pack small boxes of leads into bigger boxes, before lifting the big boxes onto pallets.

15.    I also did lots of ‘terminating’ work – I had to terminate a lead on each end and then place rubber pieces on each side of the lead.  This was a fast paced and repetitive job that involved me using both of my arms.

16.    After the ‘terminating’ work I would have to do ‘booting’.  This also put a lot of strain on my arms, my right arm in particular.  I had to push a lead through a long tube and put a boot on with my hands.  There was a lot of friction while doing this so I had to push very hard with my right arm, which put stress on my shoulder.  I did this job around one or two days a week for the last five years or so of my time at Mills Rubber.  Each day I would have done 3000 to 5000 leads.

17.    There was also work lifting rolls of terminal cables up to put on a machine part.  The roll weighed around 15-20kg, I estimate I did this job between one and three days a week, and on those days I would lift the heavy roll of terminal cables two or three times a day.

18.    Everything I did at Mills was repetitive and involved the use of both my arms.  I often had to apply force with my shoulders.”[16]

[16]See exhibit 1 at paragraphs 12-18 at pages 3-4 PCB

·The plaintiff had some “neck problems” around April 2009, with the pain seeming to go down to her shoulders.  At that time she was referred by her general practitioner for a CT scan of her neck.

·She believes that she first started having some pain in her right shoulder in about mid-2012.  She also complained to her general practitioner about pain in her upper back and right arm from work in November 2012 and was prescribed some Mobic.

·Over the years, she has dealt with the pain as best she could and thought it was just natural to be sore from hard work and her husband, on occasion, would massage her.

·She believes that she told her supervisor that her shoulders were sore on a number of occasions and also took painkillers to help deal with the worst bouts of shoulder pain – usually Panadol and Panadeine.

·After a while she commenced to get a similar sort of pain in her left shoulder also, although this pain was not as bad as the right shoulder pain and she did not complain about that.

·During early 2014, she did a lot of “booting” work and also “terminating” work, and this work seemed to cause the pain in her shoulders to get worse.  While she was doing this job she did have some breaks from work during late 2013 and 2014 when she went overseas to visit her mother, but such breaks did not overly assist her.

·The right shoulder pain had always been the worst, so that was her focus, although she did have discomfort in the left shoulder also.

·She saw her general practitioner in early May 2014 and complained about pain in her right shoulder, and then was referred to an ultrasound of her right shoulder, which was undertaken on 15 May 2014.

·Eventually it got to the point where she could not cope and had to stop work.  She last worked on 30 May 2014 and lodged a WorkCover claim on 1 June 2014.  WorkCover accepted this for only a limited period.

·She realised that her left shoulder pain was not getting any better, even after stopping work, and she complained to her general practitioner about that on 7 June 2014.

·Her general practitioner referred her to the orthopaedic surgeon, Dr David Love, who initially saw her on 11 June 2014 and referred her for an ultrasound-guided injection into her right shoulder and also referred her for some physiotherapy.

·Because of her ongoing left shoulder problems, her general practitioner referred her for an ultrasound of her left shoulder, which was undertaken on 12 June 2014.  On 18 June 2014, she had the injection into her right shoulder.

·She again attended Dr Love on 23 June 2014 regarding her left shoulder problems, and he recommended an injection into the left shoulder.  She continued to have physiotherapy for a while before stopping, because it was not helping that much.

·She was taking Tramadol, Valium, Panadol Osteo and Celebrex to help with the pain.

·Dr Love did discuss with her, surgery, but on being informed that he could not guarantee to fix her problem, it was decided not to go ahead with surgery.

·Over the period of 2015 and into 2016, she did a lot of home-based exercise and continued to take her painkilling medication, although there was not much change in her condition.

·Because she was getting very depressed and anxious about her condition, her general practitioner, Dr Umit Cenap, referred her to a psychologist in around mid-2015.

·In early 2016 she made a claim for impairment benefits and the insurance company accepted it for an injury to her right arm.

·At the time of the first affidavit, the plaintiff was taking Antenex, Panadol Osteo and Tramadol.  Her husband regularly massaged her shoulders and she was performing lots of home-based exercises, and would also go to a pool for hydrotherapy.  Heat packs were applied to both shoulders around three to four times a week and she would attend her general practitioner, Dr Cenap, every month or so, and also had seen Dr Love recently.

·At the time of her first affidavit, the plaintiff describes having constant pain in the front part of her right and left shoulders, although the pain in her left shoulder was not as bad as her right shoulder pain.  In particular, the pain in her right shoulder feels like a “burning pain with pins and needles too” and travels down the sides of her upper arm, accompanied by numbness and cramps in her right hand.  The pain in her left hand is also a “burning sort of pain” and also goes down the side of her upper left arm. 

·Moving her arms around makes the pain worse in each shoulder and repetitive movements are particularly bad, for example, cutting things in the kitchen hurts her right hand and so does brushing her teeth.  The pain in each shoulder gets worse in cold weather.  Furthermore, it is very awkward and painful in the shoulders to lift either of her arms above her head.

·The plaintiff has trouble on either side because it will cause pain in that shoulder and attempts to sleep either flat on her back or face down, and even then she wakes up through the night, sometimes due to pain.

·Whereas she used to be a proud housewife, she now finds lots of things difficult and painful and, in particular, it is painful for her right shoulder to push a vacuum cleaner, and lifting heavy shopping bags causes pain in whatever shoulder she uses to lift that bag.  Scrubbing work causes pain in her shoulders, no matter what hands she uses, and since her injuries, the clothesline has been lowered, so she does not have to reach up, which was very painful for her shoulders.

·Her daughter lives next door and she comes around a lot to help her with the chores that she cannot do anymore.  The plaintiff also enjoyed tending their little garden, but now finds it painful to dig in the garden and pull out weeds.  She finds it particularly difficult and painful to brush her teeth, and this causes right shoulder pain, and it is also painful to blow wave her hair.  She also has trouble reaching around her back to wash herself in the shower and her husband has to come and do this for her.

·At the time of her first affidavit, her mental health was not “particularly good”, and she felt frustrated because of her restrictions and anxious about the future.

·The plaintiff usually earned $26.20 an hour and worked thirty-eight hours a week, and she would usually earn approximately $995.60 gross per week.  At the time of the first affidavit she had not returned to any work with the defendant and does not feel physically capable of any work that is suitable for her at the moment.  Absent this injury, she intended to work to at least sixty-seven years of age.

16      By way of her second affidavit, the plaintiff gives the following further evidence:

·She refers to paragraph 10 of her first affidavit and makes the correction that when working three hours a day in child care, that was for five days a week.

·She notes that she underwent MRI scans of both her shoulders on 9 August 2017 and on consulting Dr Cenap – her general practitioner – about such scans, she was informed there was not much he could for her by way of treatment.  Despite that, she is considering getting a second specialist opinion to see if there is anything that would help her.  In respect to ongoing treatment, she consults Dr Cenap for her shoulder problems, takes one or two Tramadol per day, depending on how bad her shoulder pain is, takes at least one Antenex a day, and sometimes a second one in the evening to help her sleep (such tablets help with her pain and also with her anxiety), and also takes between six and eight Panadol Osteo tablets per day spread throughout the day.  She was also seeing psychologist, Mr Aslihan Tokgoz every couple of months under a Medicare plan.

·The plaintiff deposes that she has the same consequences that she described in her first affidavit and notes that the pain in both her shoulders is constant, and even when at rest she has a dull aching pain.  When she moves her shoulders they get worse and the burning pain comes on, with the pain spreading down into the upper parts of her arms, and she continues to get cramps in both hands.  In particular, repetitive movements make the pain come on very quickly.

·The right shoulder is the worse of her problems, and she describes her left shoulder as about “75% as bad as the right”.

·She notes that if she makes an awkward movement with either of her arms or is too active with her arms, or gets bumped on the shoulder, then the pain flares up very quickly and it takes a long time to settle down.

·She continues to have interrupted sleep because of her shoulder pain and feels frustrated and anxious because she cannot work, as she enjoyed being a “working woman”, and misses the work with the defendant and “the friends I had there”.

·In particular, she describes that her day-to-day activities which cause particular shoulder problems involve getting dressed – for example, when pulling tops over her head or bending down to pull up pants, or trying to put on her bra – and she sometimes needs the help of her husband to get dressed.

·She deposes that she can drive locally, but eventually gets pain in the shoulder and neck area when turning the steering wheel.  She does go and have coffees with her daughter or her friend a few times a week to try and keep up with her social life.  She goes for a walk and does a bit of shopping when she feels up to it.  She does not feel capable of working at the time of her second affidavit as she has ongoing pain in her shoulder and it is hard to imagine doing a job that she is qualified for without moving her arms.  She notes that she does not know how to use a computer and her English language skills are limited.  She has only ever worked in jobs that require her to use her arms a lot in factories and in childcare.

17      By way of her third affidavit, the plaintiff gives the following evidence:

·In or about late April and May 2017, the plaintiff attended a pain management program assessment at Epworth Rehabilitation, after referral from Dr Love.  At that assessment, the doctors at the Epworth told her that she needed a twelve-week program, and she understood that there was then a dispute between the Epworth and the defendant’s WorkCover agent, CGU, about the cost of the program.  CGU would only agree to four weeks of this program.  The plaintiff asserted that unfortunately she “cannot afford to fund the rest of the eight weeks of the program” and thus attending the pain management program was not a possibility for her.

·Consistent with her earlier indication that she would seek a second opinion, her general practitioner, Dr Cenap, referred her to the orthopaedic surgeon, Mr Steve Csongvay, who saw the plaintiff on 5 September 2017.  At that time, according to the plaintiff, Mr Csongvay looked at the recent MRI scans of her shoulders and told her that she had significant problems in both shoulders, but did not think an operation would be helpful.

·The plaintiff deposes that at the time of her third affidavit, she continues with the medications already recorded in her earlier affidavits, but also is now taking Citalopram, 20 milligrams, which commenced two months’ prior to the swearing of the third affidavit.  She also rubs Voltaren onto her shoulders twice a day and uses ice gel on her shoulders once a day.

·Her treatment is generally the same, although she now sees the psychologist, Aslihan Tokgoz, once a month, and WorkCover pays for most of her medical expenses.

The medical treatment of the Plaintiff, together with radiological reports

18      It is convenient to set out the treatment of the plaintiff and the various radiology undertaken by her before turning to the cross-examination of the plaintiff.

The radiology

19      I refer to the following radiological material:

(a)Dr Sanaa Salib, referred the plaintiff for a right shoulder ultrasound undertaken on 15 May 2014.[17]  The radiologist, Dr Piyush Siwach, reported:

[17]See exhibit 3 at page 66 PCB

“Chronic full-thickness tear of anterior fibres of supraspinatus tendon.  Mild subdeltoid bursitis.”

(b)Dr Cenap referred the plaintiff for a left shoulder ultrasound undertaken on 12 June 2014.[18]  The radiologist, Dr Mandakini Siwach, reported:

[18]See exhibit 3 at page 67 PCB

“A full-thickness tear in the anterior fibres of supraspinatus tendon measuring approximately 14 x 12mm in size.”

(c)Dr Love referred the plaintiff for an MRI scan of the cervical spine undertaken on 20 July 2016.[19]  The radiologist, Dr Karyn Chan, reported that:

[19]See exhibit 3 at pages 69-70 PCB

“Mild uncovertebral and facet joint degenerative change resulting mild right C4/5 and C5/6 foraminal narrowing. At C4/5, osteophytes contact the exiting right C5 nerve root.”

(d)Dr Cenap referred the plaintiff for an MRI scan of the right shoulder undertaken on 9 August 2017.[20]  The radiologist, Dr Anthony Taranto, concluded as follows:

[20]See exhibit 3 at pages 71-72 PCB

“1.     Large incomplete full thickness rotator cuff tear of the anterior and middle insertional fibres of the supraspinatus tendon.

2.     Marked background degenerative tendonosis of the supraspinatus and infraspinatus tendons.  Small partial tear or fraying at the superior aspect of the subscapularis tendon.

3.     Prominent fluid collection within the subcoracoid bursa associated with 3 mm bursal loose body.  Moderate subdeltoid/subacromial bursitis.

4.     Mild degenerative changes at the AC joint.  Mild degenerative arthritic thinning and irregularity of the glenohumeral joint cartilage.

5.     Intact glenoid labrum.”

(e)Dr Cenap also referred the plaintiff for an MRI scan of the left shoulder undertaken also on 9 August 2017.[21]  The radiologist, Dr Anthony Taranto, concluded:

“1.     Moderate supraspinatus and infraspinatus tendinopathy.

2.     A small to moderate sized incomplete full thickness rotator cuff tear of the supraspinatus tendon anterior and middle insertional fibres.

3.     Associated subdeltoid bursitis.  Subcoracoid bursitis noted.

4.     Intact glenoid labrum.”

[21]See exhibit 3 at pages 73-74 PCB

The evidence of Dr Umit Cenap

20      The plaintiff relies on medical reports from his general practitioner, Dr Umit Cenap, dated 25 August 2014, 19 May 2016, 19 December 2016 and 20 August 2017.[22]  Dr Cenap, in each of his reports, builds on what he has already stated in earlier reports and repeats in the later reports.  Accordingly, his last report dated 20 August 2017 sets out all information which he has recorded in earlier reports up to that date.

[22]See exhibit 2 at pages 29-42 PCB

21      Dr Cenap records that the plaintiff has been a patient of his since 13 October 2010.  On 30 May 2014, the plaintiff presented with pain in her right shoulder which had been present for the last two years but had worsened around the beginning of May 2014.  Dr Cenap had available the right shoulder ultrasound that the plaintiff underwent on 15 May 2014 at the behest of Dr Salib[23].  Such report revealed a chronic full-thickness tear of the anterior fibres of the supraspinatus tendon, and bursitis.

[23]See paragraph [19] of this Judgment

22      Dr Cenap recorded that the plaintiff had been working for the defendant from 1995 to 2001 and from 2007 to 2014 and her job involved repetitive work.  He states that:

“… Her hands and arms never stopped working throughout the whole day.”[24]

[24]See exhibit 2 at page 30 PCB

23      Dr Cenap notes that the pain in the right shoulder of the plaintiff progressively became worse, to the extent that the arm was painful all the time, particularly when moving.  He notes there was no specific injury.

24      Dr Cenap formed the opinion that her injury to the right arm was related to her repetitive work and is “work related”.

25      Examination on 13 October 2010 revealed tenderness around the right shoulder with elevation of the arm to about 90 degrees.  Her power was reduced in her right arm.

26      At that time, Dr Cenap referred the plaintiff to the orthopaedic surgeon, Dr David Love, who arranged for an ultrasound-guided injection to be undertaken, and physiotherapy thereafter.

27      On 7 June 2014, the plaintiff informed Dr Cenap that her left shoulder had been painful for the last three months and on examination at that time, there were similar findings as those of her right shoulder and, again, an ultrasound undertaken showed the same findings as the right shoulder – that is, a chronic full-thickness tear of the supraspinatus tendon, and subacromial bursitis.  Again, the plaintiff was referred to Dr Love for similar treatment as her right shoulder.

28      Dr Cenap noted that the plaintiff had not only undergone physiotherapy and cortisone injections but also was prescribed Tramal, 50 milligrams, Valium, 5 Milligrams, Panadol Osteo and Celebrex, 200 milligrams.  At the time of this report, Dr Cenap records that the plaintiff was continuing her medication and self exercises but her condition, that is constant pain and restricted mobility, is continuing.

29      In particular, in his report dated 24 August 2017, Dr Cenap states, in part:

“Mrs. Ozen is very compliant with her treatments.  She continues her medications and self exercises at present.  Physiotherapy and [an] orthopaedic surgeon could not improve her condition.  She has had no other predisposing conditions except lately stress and anxiety, insomnia and depression from constant pain.  She is also very upset about [the] Medical Panel’s decision dated 26^th July, 2017 stating that her condition is resolved.  Her condition is work related and is continuing.  Her repetitive and constant work has caused her condition in both shoulders and it continued aggravating, exacerbating and deteriorating her condition i.e. tendon tear, tendonitis and bursitis.  When her pain got unbearable then she started to seek medical help.

Mrs. Ozen is not fit for work at all with her pre-injury employment or any alternative duties.  She has constant pain in her shoulders.  Any movement of her shoulders and arms aggravate her pain.  She can’t sleep most of the time.  She has now stress, anxiety and depression because she feels helpless.  … .”[25]

(Emphasis added.)

[25]See exhibit 2 at pages 40-41 PCB

30      Dr Cenap records that he did refer the plaintiff to a psychologist to alleviate her stress, anxiety, insomnia and depression arising from her constant pain.  He notes that her psychiatrist, Mr Aslihan Tokgoz, has reported on 14 November 2016 that the plaintiff had anxiety and depression which needs further psychological therapy.

31      Dr Cenap also notes that the plaintiff underwent MRI scans of both her right shoulder and left shoulder (the reports of both which have already been recorded in this Judgment).

32      Ultimately, Dr Cenap expresses his opinion in these terms:

“Both shoulder conditions are likely to persist into the foreseeable future.

Looking at the injury to the right shoulder Mrs. Ozen has no capacity for work (i.e. pre-injury or alternative work).

Looking at the injury to the left shoulder Mrs. Ozen has no capacity for work (i.e. pre-injury or alternative work).

The orthopaedic specialist she has seen in the past advised against operation which he believed may not be successful.  Mrs. Ozen has been recently referred to get another opinion from another orthopaedic surgeon.

Mrs. Serpil Ozen’s prognosis is not looking good.  She has no fitness for pre-injury or alternative employment.  Without treatment Mrs. Ozen’s condition will gradually deteriorate.  She needs to continue her regular treatment i.e. Tramal 50mg oral 1 tablet 4 times a day, Celebrex 200mg, Panadol Osteo 2 tablet[s] 3 times a day and Antenex (Valium) 5mg a day as well as exercise and hydrotherapy.  She also needs psychosocial support, home help, financial support and psychological therapy for her anxiety and depression.  She is not improving with her pain and restricted movements of her shoulders.”[26]

[26]See exhibit 2 at page 42 PCB

The evidence of Dr David Love

33      The plaintiff also relies on various reports and letters from the orthopaedic surgeon, Dr David Love, dated 11 June 2014, 23 June 2014, 30 July 2014, 1 September 2014, 17 December 2014, 20 June 2016, 13 September 2016, 23 November 2016 and 21 August 2017.[27]

[27]See exhibit 2 at pages 43-60 PCB

34      Dr Love initially consulted with the plaintiff on 11 June 2014.  At that time, he obtained a history from the plaintiff that she had been a worker in a factory performing repetitive work and over the last two years, had developed pain in her right shoulder that had progressively worsened.

35      Ultimately, it resulted in her being unable to elevate her arm and hand above the level of the shoulder because it created pain during that activity.

36      She was unable to recall any specific trauma “but does put it down to [the] repetitive nature” of her work.[28]

[28]See exhibit 2 at page 44 PCB

37      Clinical examination at that time revealed some minor tenderness around the right shoulder, no tenderness in her acromioclavicular joint and a full passive range of motion but actively could only elevate her arm to 90 degrees and forward flex to the same level.  Furthermore, when performing internal rotations, she could only bring her right hand around to being level with her buttock.  Her rotator cuff muscular testing revealed Grade 4 power in her supraspinatus but full power in the infraspinatus and subscapularis muscle and was able to demonstrate a painful arc.

38      Dr Love had available the initial ultrasound (earlier referred to) which confirmed that the plaintiff had subacromial bursitis with a tear in the supraspinatus tendon.  Dr Love diagnosed her with a right shoulder rotator cuff tear with associated subacromial bursitis.  He recommended a course of physiotherapy in conjunction with an ultrasound-guided injection of local anaesthetic corticoid.

39      On 23 June 2014, the plaintiff again consulted with Dr Love, at which time she complained of similar symptoms in the left shoulder, and examination revealed tenderness in the anterolateral corner of the left shoulder.  The plaintiff also demonstrated a painful arc but with a full range of motion.  She had Grade 4 power in the supraspinatus but the infraspinatus and subscapularis had full power.  Again, an ultrasound of the left shoulder (earlier referred to) revealed a full-thickness tear of her supraspinatus tendon of the left shoulder.  Dr Love recommended the same type of treatment for the left shoulder as he had for the right and organised for her to have an ultrasound-guided injection in the left side as well.

40      In his report dated 30 July 2014 addressed to the solicitors acting on behalf of the plaintiff, Dr Love confirmed the diagnosis of a bilateral subacromial bursitis with bilateral supraspinatus tendon tears affecting the rotator cuff.  In particular, Dr Love went on to say:

“These conditions can be associated with repetitive work.  It also fits with the slow nature of the deterioration of her symptoms over the last two years.  This pathology is a very common pathology in the community and it is possible that she could have developed this regardless of her work situation.  However, at the very least, the work could certainly represent an aggravation of an underlying pathology.  I am unable to determine, particularly in the absence of any obvious trauma, that the work was the actual cause of the tears and the pathologies she was experiencing.”[29]

(Emphasis added.)

[29]See exhibit 2 at page 47 PCB

41      At that time, Dr Love thought the plaintiff’s prognosis “reasonably favourable” depending on her response to treatment, and at that time, he was awaiting the outcome of the injections.  In particular, he noted:

“I would expect her to be able to get back to some form of work.  It is possible that it would not be the work she was involved with or it may require some significant work restrictions.  This would include the restriction of her lifting her hands above her head or carrying any significantly heavy weights over 10 kg.  It may be that she requires regular rest breaks on returning to work.  There may need to be some alteration in her workplace environment in order for her to continue on with the work that she was employed with. 

… .”[30]

[30]See exhibit 2 at pages 47-48 PCB

42      Subsequently, Dr Love consulted with the plaintiff on 1 September 2014 and obtained a history that the injections to both the left and right shoulders had caused no improvement of her symptoms.  At that time, Dr Love recommended that she continue with non-operative treatment, namely physiotherapy, to see how she progressed.

43      When reviewed on 17 December 2014, Dr Love became concerned that there might have been some weakness in the C4 muscle group, indicating a possible compression of one of the nerve roots in the cervical spine.  At that stage, he recommended she be reviewed with an MRI scan of her cervical spine, together with a follow-up from a spinal surgeon.

44      When reviewed on 20 June 2016, the plaintiff was continuing to have problems with both shoulders.  Dr Love reconfirmed clinically and radiologically, the presence of rotator cuff tears and bursitis.  At that time, he had the MRI of her cervical spine undertaken on 20 July 2014 (already referred to) and also the review by Mr Cunningham, orthopaedic surgeon, who considered that the cervical spine was not a significant concern.

45      In a report to those acting for the plaintiff dated 13 September 2016, Dr Love confirmed his diagnosis of bilateral rotator cuff tears affecting the supraspinatus muscle with associated subacromial bursitis.

46      In relation to her capacity for employment, Dr Love stated:

“In regard to her current fitness for work, I think it is unlikely that she is going to be able to return to her pre-injury employment and alternative duties may be difficult as well.  This is based on her language and her difficulty at performing repetitive activities with her shoulders.  If she were to return to some sort of work it would be at restricted hours of approximately 10-20 hours per week with as minimal repetitive actions as possible.”[31]

(Emphasis added.)

[31]See exhibit 2 at pages 56-57 PCB

47      Seemingly, Dr Love last reviewed the plaintiff on 23 November 2016, wherein Dr Love noted that although he had been treating her as a patient with subacromial bursitis impingement, he was very pessimistic about the possibility of surgery offering any significant help.

48      In the circumstances, he explained to the plaintiff that he thought most probably the best course would be for her to be referred to a chronic pain specialist and to this end, he recommended she be referred to Dr Stephen de Graaff, who operates at the Epworth network.

The evidence of Dr Olivia Ong

49      The plaintiff also refers to a report from Dr Olivia Ong to Dr Love dated 5 May 2017.  Dr Ong was part of the rehabilitation team at the Epworth Hospital situated in Camberwell.

50      In that report, Dr Ong restates the history in relation to the symptoms of the plaintiff and her treatment to date and then notes on examination that there were no clinical features of CRPS; however, there was limited range of motion of both shoulders bilaterally and in particular, abduction and flexion, internal and external rotation.  There was tenderness in her neck cervical facets and spina scapulae and widespread tender points over her superficial muscles of the neck posteriorly on both sides.  Dr Ong records that her “impression” was that the plaintiff had developed adhesive capsulitis over both shoulders, right worse than left, and that she also had features of central sensitisation, confirmed by history, and multiple myofascial points on examination.

51      Dr Ong notes that a management plan was organised that the plaintiff was to have an outpatient initial assessment and physiotherapy and occupational therapy and psychology, after which she would be reviewed in three months’ time.

The evidence of Mr Steven Csongvay

52      The plaintiff also relies on medical reports from the orthopaedic surgeon, Mr Steven Csongvay, dated 5 September 2017 (to Dr Cenap) and 21 November 2017[32] (to the solicitors acting for the plaintiff).

[32]See exhibit 2 at pages 64 – 65-4 PCB

53      Dr Umit Cenap, the treating general practitioner, referred the plaintiff to Mr Csongvay, who consulted with her on 5 September 2017.  On that day, Mr Csongvay obtained a history and performed an examination of the plaintiff.  In particular, the plaintiff had reduced active as well as passive elevation and abduction in both shoulders to approximately 90 degrees with relatively normal internal and external rotation, but with significant irritability of both shoulders.  She also demonstrated subacromial irritability, as well as moderate weakness of the supraspinatus on both sides, but more pronounced on the right.  She did not have any signs of adhesive capsulitis on either side.

54      Mr Csongvay noted that the MRI scans (already referred to) revealed bilateral chronic rotator cuff tendinopathy/full-thickness rotator cuff tears with retraction and associated muscle atrophy, more pronounced on the right. 

55      In his report    to those acting for the plaintiff, dated 21 November 2017, Mr Csongvay reported that in respect to each of the shoulders, there is:

“… a chronic, full thickness tear of the supraspinatus tendon and associated tendinopathy of the remaining rotator cuff tendons and some underlying early glenohumeral joint osteoarthritis.”[33]  

[33]See exhibit 2 at page 65-2 PCB

56      Mr Csongvay considered that the severity of the tear on the left was not as severe as that on the right and there were no glenohumeral degenerative changes noted on the MRI scan on the left.

57      Mr Csongvay considered that both shoulder conditions would give rise to ongoing symptoms into the foreseeable future.  When queried about the capacity of the plaintiff to work, given the organic injury to her right shoulder, Mr Csongvay stated:

“Considering the nature and the severity of the tendon damage in the right shoulder and the associated general state of the remaining musculature, tendons and articular surfaces I believe that the significant damage and wear in the right shoulder would preclude [the plaintiff] from being able to perform her usual duties at work and I also believe that it would have a significant effect on her ability to undertake any form of physical work/employment into the foreseeable future.”[34]

[34]See exhibit 2 at page 65-3 PCB

58      When queried about the capacity of the plaintiff to work, given the organic injury to her left shoulder, Mr Csongvay stated:

“Although there is less severe damage in the left shoulder compared to the right shoulder there is still significant damage to the rotator cuff in general that would prevent [the plaintiff] from being able to perform normal duties at work an (sic) also would have a significant bearing on her being able to perform any form of physical work into the foreseeable future.”[35]

[35]See exhibit 2 at page 65-3 PCB

59      Mr Csongvay considered that the plaintiff had a chronic pain condition affecting both shoulders, with significant underlying structural shoulder problems that were not surgically correctable.  He encouraged the plaintiff to have ongoing physiotherapy involving rotator cuff strengthening exercises and massage treatment.

60      In particular, Mr Csongvay considered the prognosis for the plaintiff to be poor, in that she has bilateral, significant shoulder problems that will gradually deteriorate even with associated supportive therapies and medical treatment.

The medico-legal evidence relied on by the Plaintiff

61      The plaintiff’s solicitors arranged for:

(a)The orthopaedic surgeon, Mr C M Pullen, to medico-legally examine the plaintiff on 22 August 2014;[36]

(b)The vascular and general surgeon, Mr Charles Flanc, to medico-legally examine the plaintiff on 12 November 2014;[37]

(c)The pain physician and specialist anaesthetist, Dr Symon McCallum, to medico-legally examine the plaintiff on 9 August 2017;[38]

(d)The orthopaedic surgeon, Mr Ash Chehata, to medico-legally examine the plaintiff on 4 October 2016[39] and on 8 August 2017;[40]

(e)The specialist occupational physician, Dr Joseph Slesenger, to medico-legally examine the plaintiff on 22 August 2017.[41]

[36]See exhibit 4, report dated 2 August 2014 at pages 75-81 PCB

[37]See exhibit 4, report dated 13 November 2014 at pages 82-90 PCB

[38]See exhibit 4, report dated 9 August 2017 at pages 91-94 PCB

[39]See exhibit 4, report dated 10 October 2016 at pages 100-104 PCB

[40]See exhibit 4, report dated 15 August 2017 at pages 107-111 PCB

[41]See exhibit 4, report dated 22 August 2017 at pages 111-1 – 111-12 PCB

62      The plaintiff also relied on the following medical reports obtained by the defendant (or its insurer):

(a)A medical report from the orthopaedic surgeon, Dr Graeme Doig, who examined the plaintiff on 10 January 2017 at the request of the insurer of the defendant;[42]

(b)A medical report from the occupational physician, Dr David Elder, who examined the plaintiff on 14 July 2016 in order to provide an impairment assessment under the AMA (4th edition) Guide to the Evaluation Of Permanent Impairment.[43]

[42]See exhibit 5, report dated 10 January 2017 at pages 112 – 117 PCB

[43]See exhibit 6, report dated 14 July 2016 at pages 117.1 – 117.6 PCB

63      Clearly enough, some of these reports are dated, but nonetheless I will refer to them as they are relevant in determining, among other things, whether the plaintiff suffered a compensable injury to her left shoulder and the nature of such injury.

64      When the orthopaedic surgeon, Mr Pullen examined the plaintiff on 22 August 2014, he obtained a full history and had available to him reports from Dr Cenap, Mr Love, and various radiological studies.  He made an examination, and ultimately made a diagnosis of “Bilateral full thickness tears of the supraspinatus tendon”.

65      When queried as to whether there was any work contribution to such injury, Mr Pullen stated:

“[The plaintiff] indicated that she had developed bilateral shoulder symptoms over a two-year period whilst in the employ of Mills Rubber Innovations.  [The plaintiff] explained that she had performed heavy manual work at Mills Rubber Innovations over the last 14 years, which included lifting and packing.  She linked these activities to her gradual onset of bilateral shoulder pain.  Ultrasound scans of her shoulders have shown bilateral full thickness tears of the supraspinatus tendon.

Based on the information above, [the plaintiff’s] employment as a process worker over an extended period is the likely cause of her chronic bilateral shoulder problems.  Prior to this period, [the plaintiff] denied any history of injury to her shoulders.  She had no past history of shoulder symptoms and she was able to perform in a demanding manual work role as a process worker.  Therefore her employment with Mills Rubber Innovations has been the cause of, or a significant contributing factor to her bilateral shoulder pathology.[44]

(Emphasis added.)

[44]See exhibit 4 at page 80 PCB

66      At the time of his examination, Mr Pullen was of the opinion that the plaintiff had no capacity for her pre-injury duties and at that time needed further treatment with MRI scan investigation.

67      When examined by the vascular and general surgeon, Mr Flanc, on 12 November 2014, a full history was obtained and, in particular, the type of work the plaintiff was undertaking at the premises of the defendant.  Mr Flanc notes that although it was a “little difficult” to understand the exact nature of the duties, it appeared to involve heavy and repetitive use of her upper extremities with repeated elevation of her arms, usually to just below shoulder height and occasionally to above shoulder height.  The plaintiff gave a history of her onset of symptoms and Mr Flanc performed an examination and had available the ultrasounds undertaken on the right and left shoulders.  Furthermore, he had reports from the treating general practitioner, Dr Cenap, and the treating orthopaedic surgeon, Mr Love.

68      Mr Flanc diagnosed that the major component of her symptoms is related to pathology in the rotator cuff tendons of both the right and left shoulders.  In this respect, he noted the ultrasound reports of a tear of the supraspinatus tendon and subdeltoid bursitis.

69      Mr Flanc also noted that it was quite “possible” that the plaintiff’s symptoms were also being influenced by non-organic factors, although he thought this not to be a dominant issue.

70      In particular, Mr Flanc was of the opinion that the nature of the plaintiff’s work with the defendant was consistent with that required to cause a significant aggravation and acceleration of the degenerative condition of the supraspinatus tendons, which became symptomatic and progressed to develop tears, even though there was no specific episode in her history.  At the time of examination, Mr Flanc was of the opinion that the plaintiff had no capacity for employment because of the severe symptoms and limitation of movement of both shoulders.  Furthermore, he considered that the prognosis for “significant improvement” must be guarded.

71      When examined by the pain physician and specialist anaesthetist, Dr McCallum, on 9 August 2017, he obtained a history, made an examination and ultimately stated:

“Mrs Ozen has a chronic pain syndrome.  She has got bilateral shoulder pain which I think is likely related to the pathology found on her ultrasound scans.  On top of this I think she has got a chronic muscular component which will be due to these injuries.  It is extremely common for shoulder pain to result in muscular pain in the neck and scapular area.  She is extremely fearful of the pain and possibly has some catastrophic thinking about it.  She is taking Antenex for anxiety.  She is worried about her future.  She is frequently tearful.  She feels as though she may possibly be depressed.”[45]

[45]See exhibit 4, report dated 9 August 2017 at page 93 PCB

72      Dr McCallum recommended that an MRI scan of her shoulders would be an “excellent idea” and that she would benefit from a pain rehabilitation program.  Furthermore, he considered that she needed pharmacological help with treatment of her chronic pain, which could be improved.  Furthermore, he considered that she may benefit from seeing a psychiatrist.

73      Dr McCallum also stated that he believed that the plaintiff’s current condition is likely to be significantly related to the nature of her job and believed that the “nature of her job” could result in the pathological findings found on her shoulder ultrasound.  Furthermore, he considered that the nature of the job could also be responsible for chronic muscular pain.

74      When seen by the orthopaedic surgeon, Mr Ash Chehata, on 4 October 2016, the plaintiff again gave a full history, described her symptoms and occupational background.  Mr Chehata made a clinical examination of both shoulders.

75      Mr Chehata diagnosed bilateral rotator cuff tears, and when queried about the relationship of that condition with her work, stated:

“… [The plaintiff’s] condition is that of a manual labourer performing heavy manual duties, that are repetitive above shoulder height, all of which are consistent with causing full thickness anterior supraspinatus rotator cuff tears that is related to her employment.”[46]

(Emphasis added.)

[46]See exhibit 4 at page 103 PCB

76      Furthermore, in terms of her then current fitness for work, Mr Chehata stated:

“(i) … fitness for pre injury employment

[The plaintiff] is unable to perform pre injury employment, partly because of the ongoing pain, and partly because of the rotator cuff tears that were initially diagnosed, almost four years ago preclude an individual to continue performing manual labouring work, partly because of the loss of strength, but also the worsening pain, and this unfortunately has also caused, not only a physical impact by preventing her to fully forward flex and lift and move her arms, but unfortunately this has caused deep anxiety and depression.

(ii) Fitness for alternative duties, if so what restrictions are placed on the worker?

With anxiety, depression, a poor grasp of language with an education basis, finishing in year ten, and the fact that she finds forward flexing, abducting her shoulders quite painful, I would struggle to invisage (sic) that she would be able to find alternative duties, and although the ideal scenario would be that of administrative work some sort of computer based duty, unfortunately I feel that the lack of language, education, as well as the inability to forward flex and internally rotate would most likely mean that she would be unable to comply with any modifications or alternative duties.”[47]

[47]See exhibit 4 at page 103 PCB

77      Dr Chehata thought her prognosis was “poor especially if the tears increase in size”.

78      When later re-examined on 8 August 2017, Mr Chehata had available bilateral MRI scans undertaken on 9 August 2017 (already referred to).  He confirms that the scan of the right shoulder indicates a 1.8 x 2.8 centimetre retracted supraspinatus full-thickness rotator cuff tear coupled with degenerative changes in the AC joint, with tendinosis of both infraspinatus and subscapularis.

79      Furthermore, the MRI scan of the left shoulder also reveals a smaller rotator cuff tear measuring 1.2 centimetres, but also mild retraction present, with associated bilateral subacromial bursitis in both shoulders.

80      Again, after making the examination, Mr Chehata noted that the plaintiff was a relatively young factory worker who presented with bilateral rotator cuff tears, which had been managed non-operatively.  He notes that such tears have increased in size with significant retraction and that the plaintiff is planning on pursuing a non-operative management plan based on the recommendation from her treating surgeon, emphasising the lack of guarantee with operative intervention.

81      In particular, Mr Chehata was queried about the organic nature of the injury to her right and left shoulders and also capacity.  He states:

“What is the organic/diagnosable physical injury to the right shoulder?

The physical injury to the right shoulder has been confirmed with a more recent MRI scan, confirming a full thickness rotator cuff tear.  The significant size and full thickness tear of the rotator cuff has now retracted, correlating on clinical examination with weakness and loss of strength and impingement in the right shoulder.  The tear is increasing in size consistent with her clinical presentation

What is the organic/diagnosable physical injury to the left shoulder?

The physical injury is a significant rotator cuff tear that is retracted, causing impingement, as well as loss of power, loss of strength secondary to the full thickness rotator cuff tear and retraction of the fibers.

Is the organic injury likely to persist in the foreseeable future?

The injury is likely to persist in the foreseeable future.  The rotator cuff tear is a full thickness tear that has retracted fibers.  Natural history studies suggest that the tears will increase in size, culminating in cuff arthropathy over the next 5-10 years.

Is the injury in the left shoulder likely to persist into the foreseeable future?

Yes, the left shoulder full thickness rotator cuff tear is of significant size that it is now retracted with natural history studies suggesting full thickness rotator cuff tears with retraction likely to increase in size, with the development in the next 5-10 years of cuff arthropathy.

Looking at the organic injury to the right shoulder only, what is the worker’s capacity for work?

With a full thickness rotator cuff tear on the right shoulder with supraspinatus tendon tearing with retraction, manual laboring work should be avoided.  The activation of the supraspinatus tendinopathy occurred at approximately 60 to 80 degrees in forward flexion and abduction, and due to the lack of attachment to the humeral head, her lifting capacity is reduced, relating to the loss of strength and power from the rotator cuff tear.

Looking at the organic injury to the left shoulder only, what is the worker’s capacity for work?

The worker’s capacity due to the left full thickness rotator cuff tear is markedly reduced.  There is no attachment of the supraspinatus onto the humeral head, thereby reducing her strength, causing impingement at approximately 80 to 90 degrees before reducing her capacity to perform repetitive activities, as well as her lifting capacity due to the lack of tendon attachment to the humeral head causing loss of strength.”[48]

[48]See exhibit 4 at page 110 PCB

82      Mr Chehata was of the opinion that the prognosis of the plaintiff is poor, and he considered it was unlikely she will ever return to any manual employment, secondary to her poor English language, as well as limited education, and due to the generalised nature of her pain at this late stage.  Furthermore, Mr Chehata considered that her rotator cuff tendons have now become retracted and are unlikely to be amenable to operative intervention.

83      The specialist occupational physician, Dr Joseph Slesenger, assessed the plaintiff on 22 August 2017, with the assistance of a Turkish interpreter.  Dr Slesenger had medical reports from both those acting for the plaintiff and those acting for the defendant, together with the ultrasounds of the left and right shoulder, together with MRI scans of the right and left shoulders.

84      Dr Slesenger obtained a history of the type of work the plaintiff was performing with the defendant and also made an examination of her.

85      Dr Slesenger confirmed that the plaintiff has a right shoulder and left shoulder rotator cuff tear.  He considered that the plaintiff may be a candidate for surgical intervention, but he remained “cautious” as any likely outcome from such surgery.

86      In particular, taking the organic injury to the right shoulder only, and taking the organic injury to the left shoulder only, Dr Slesenger was of the opinion that the plaintiff, in both situations, would not have the capacity to return to her pre-injury duties and that with regard to alternative employment, any such employment should:

·        avoid over-shoulder reaching

·        avoid push, pull, carry or lift over 5 kilograms

·        avoid repetitive shoulder work 

·        avoid sustained forward reaching.

87      When queried about further treatment, Dr Slesenger demurred from giving any opinion as to the necessity for surgery, as this was outside of his expertise, but in the event that surgery is not an option, he recommended:

·The plaintiff should be referred to her pain specialist to address a review of her medication and consideration of a multidisciplinary approach to her rehabilitation.

·She will require support for her mental health impairment and this should be addressed by an expert in the relevant area.

·She should see her general practitioner for certification and medication purposes.

·She should also engage in a self-managed exercise program, including TheraBand and pulley exercises (to assist with her current decondition status).

88      In any event, Dr Slesenger, given the history of the condition, was cautious with regard to any outcome for further treatment and improvement and, furthermore, had reservations about the plaintiff’s capacity to return to any work given her symptoms, her functional limitations, her language limitations, her lack of computer skills and limited transferability of qualifications, and bearing in mind the focused nature of her past employment.

89      The orthopaedic surgeon, Dr Graeme Doig, examined the plaintiff on 10 January 2017 on behalf of the insurer of the defendant.  He obtained a history of the presenting complaint, conducted an examination, and then made a diagnosis of bilateral rotator cuff tears at the shoulders.  In particular, when queried as to what caused the plaintiff’s injury, he stated:

“The conditions may have been caused by the repetitive lifting at work, particularly with the arms abducted and forward flexed.  Certainly, the working conditions would have aggravated her underlying rotator cuff pathology.”[49]

(Emphasis added.)

[49]See exhibit 5, and in particular, at page 114 PCB

90      When queried about her capacity for work, Dr Doig stated:

“[The plaintiff] is not fit for pre-injury status.  She is fit for restricted duties.  She will have a less than 2 kg lifting, pushing, pulling limitation at or below waist height with each arm.  She should not be lifting any more than 5 kgs with both arms.  She has limited use of both arms overhead.

…

The duration of incapacity is most likely indefinite, if [the plaintiff] is not prepared to proceed with surgery.

…

To achieve a full return to work would involve successful bilateral shoulder rotator cuff repair surgery and, in view of the chronicity of the problem, there is a risk of making the condition worse.

…

[The plaintiff’s] current treatment with respect to analgesics is appropriate and will be ongoing.”[50]

[50]See exhibit 5 at page 115 PCB

91      The consulting occupational and environmental medicine practitioner, Dr Elder, examined the plaintiff on 14 July 2016, for the purposes of giving an impairment assessment on behalf of the insurer of the defendant.  At that time, the only accepted injury was the right shoulder.

92      Dr Elder obtained a history from the plaintiff of also suffering left shoulder pain.

93      In his report dated 14 July 2016, Dr Elder was of the opinion that the plaintiff had a right shoulder dysfunction relevant to the accepted right shoulder injury.  He made an assessment of permanent impairment pursuant to the provisions of the Act.[51]

[51]See exhibit 4 at page 80 PCB

94      Subsequently, by way of letter dated 17 March 2017[52] from the insurer of the defendant to the plaintiff, liability was admitted for impairment benefits and a sum of $17,634 was offered – and apparently accepted – representing the impairment assessment.

[52]See exhibit 7 at pages 121-124 PCB

The medical evidence relied on by the defendant

95      It is also convenient to set out the medical evidence relied on by the defendant.

96      The defendant relies on the following medico-legal examinations:

(a)By the rheumatologist, Dr Tony Kostos, on 28 October 2016[53] and 4 October 2017;[54]

(b)By the psychiatrist, Dr Dush Shan, on 16 November 2015.[55]

[53]See exhibit “A”, report dated 3 November 2016 at pages 1-3 DCB

[54]See exhibit “A”, report dated 9 October 2017 at pages 4-6 DCB

[55]See exhibit “A”, report of same date at pages 9-14 DCB

97      Those acting for the defendant also rely on the following material:

(a)The report of the psychiatrist, Dr Nicholas Ingram, who medico-legally interviewed the plaintiff on 16 August 2017[56] on behalf of the solicitors for the plaintiff;

(b)A letter from the orthopaedic surgeon, Mr John Cunningham, dated 16 August 2016;[57]

(c)Medical Panel opinion dated 24 July 2017.[58]

[56]See exhibit “A”, report dated 16 August 2017 at pages 95-99 DCB

[57]Such letter at page 28 DCB

[58]Such opinion found at pages 15-16 DCB

98      At his first consultation, Dr Kostos obtained a history from the plaintiff and, in particular, obtained a history that her shoulder problems began “gradually over the years”.  The plaintiff informed Dr Kostos that she developed right shoulder problems, followed by left shoulder problems but, generally, now, the pain was of similar intensity on both sides.  The plaintiff also outlined how she consulted her general practitioner and, later, the orthopaedic surgeon, Mr Love.

99      At the time of the initial examination, the plaintiff gave a history that she was taking Panadol Osteo, six to eight per day, as well as Tramal, 50 milligrams during the day, together with Antenex at night.  The plaintiff confirmed that she ceased worked in 2014 and has not worked in any capacity since then.  Dr Kostos reported that the plaintiff informed him that she can manage most activities of daily living, cannot blow wave her hair and has difficulty brushing her teeth.  Although she does some light cooking and cleaning, she cannot vacuum or undertake any activities involving arm reaching and elevation.  Dr Kostos noted the plaintiff was able to drive.

100     On examination, Dr Kostos found that both shoulders showed restricted elevation to 90 degrees with pain.  The plaintiff had full glenohumeral movements, with positive impingement tests, more so on the right, and there was also diffuse tenderness around both shoulder girdles.  Neurologically, her grip strengths were weak with values of five bilaterally.

101     Dr Kostos had available to him the ultrasounds of both the right shoulder and left shoulder undertaken, respectively, on 15 May 2014 and 12 June 2014 (already referred to). 

102     Dr Kostos initially opined that based on the history and examination findings “it is reasonable to suggest” that the plaintiff does have bilateral subacromial impingement and this can certainly relate to a combination of rotator cuff tendon tears.  Furthermore, he considered that her pain at night “certainly suggests” that she may have a component subacromial bursitis as well.

103     Dr Kostos highlighted that in his opinion, rotator cuff tendon tears are a common predicament of ageing.  Ultimately, Dr Kostos proffered the opinion that the plaintiff had “not suffered any injury that has resulted in a rotator cuff tendon tear”.[59]  He then states:

“Whilst at work they (sic) may have been a temporary aggravation of her symptoms but she has now been off work for 2 years and any work related aggravation would have settled.  Therefore we are seeing the natural history of her condition.”[60]

Dr Kostos did note that the plaintiff did not have a physical capacity to return to her former employment. 

[59]See exhibit “A”, report dated 3 November 2016 at DCB 3

[60]See exhibit “A”, report dated 3 November 2016 at DCB 3

104     At the time of his second and last examination of the plaintiff on 4 October 2017, he noted that the plaintiff continued to complain of constant pain in both shoulders, with the right greater than the left, with such pain extending to the upper arms, and even to the sides of her neck at times. A history was also given that the plaintiff suffers pain at night and has difficulty lying on either side, and that during the daytime her pain is aggravated by any activity which is compounded by restriction of shoulder movements.

105     The plaintiff again confirmed that she was taking Panadol Osteo, Tramal and Antenex at the same doses, but had also commenced to take Escitalopram for Depression and seeing a psychologist every month.  Examination again revealed restricted elevation to 90 degrees with pain, with the right being greater than the left.  Dr Kostos noted that the plaintiff had full glenohumeral movements and impingement testing on the left side was negative, whereas there was perhaps a weakly positive impingement test on the right (although difficult to interpret).

106     Dr Kostos also had the MRI scans undertaken 9 August 2017 in respect of both shoulders.  In his opinion, Dr Kostos confirmed that his findings on examination were simply the “natural history” of the condition and, furthermore, there were “elements” of a Chronic Pain Syndrome.

107     When later queried as to whether or not the plaintiff’s shoulder complaints had an organic basis, Dr Kostos, by letter dated 30 October 2017,[61] stated:

“You have asked whether this woman’s shoulder complaints have an organic basis and they certainly did originally, but her presentation more recently is that of a chronic pain syndrome which usually relates to inherent personality traits, previous life experiences, attitudes and beliefs, psychosocial factors and the adaptability to cope with anxiety and stress.

Pain always has an organic basis to start with, but sometimes the situation can be clouded by other issues and in particular medico-legal issues.”

[61]See exhibit “A” at page 7 DCB

108     Dr Dush Shan, a consultant psychiatrist, interviewed the plaintiff on 16 November 2015 , on behalf of the insurer of the defendant.  After obtaining a history and making a mental state examination, Dr Shan reports that the “… [plaintiff] did not present with a gross psychiatric disturbance that would lead to disproportionate physical complaints”.[62]  In particular, Dr Shan considered that the plaintiff was suffering normal emotional reactions for any person in such situation and did not show any evidence of a Psychiatric Disorder, such as an Adjustment Disorder or Pain Disorder.

[62]See exhibit “A”, report dated 16 November 2015 at page 12 DCB

109     The Certificate of Opinion from the Medical Panel sets out its opinion in response to a referral from Magistrate Wright lodged on 26 April 2017.  The date of the opinion is 24 July 2017.  The Panel consisted of Associate Professor Alexander Holmes (psychiatrist),  Dr Richard Travers (rheumatologist), Dr Steven Jensen (musculoskeletal physician) and Mr John Skelley (orthopaedic surgeon).

110     I set out the various questions posed by Magistrate Wright and the answers thereto:

“Question 1     What is the nature of the Plaintiff’s medical condition(s) (including any sequelae) relevant to the following injuries:

a)  Injury to the right shoulder;

b)  Injury to the left shoulder; and

c)  Consequential anxiety and depression

(the ‘alleged injuries’)?

Answer:It is the Panel’s opinion that the Plaintiff has a mild adjustment disorder.

The Panel is of the opinion that the Plaintiff suffered a soft tissue injury of the right shoulder which has subsequently resolved.

The Panel is of the opinion that the Plaintiff does not suffer from any intrinsic medical condition of the left shoulder.

Question 2Was the Plaintiff’s employment in fact, or could it possibly have been, a significant contributing factor to the injury to the left shoulder?

Answer:The Panel is of the opinion that the Plaintiff’s employment was not in fact nor could it possibly have been a significant contributing factor to any claimed injury to the left shoulder.

Question 3Do any and if so which of the medical conditions identified in answer to Question 1 result from or are they materially contributed to by any and if so which of the alleged injuries?

If a medical condition previously resulted from or was materially contributed to by any alleged injury but no longer results from, or is materially contributed to by, an alleged injury then the Panel is requested to state the date when any work related contribution ceased.

Answer:The Panel is of the opinion that the Plaintiff’s mild  adjustment disorder result’s from and is materially contributed to by the alleged consequential anxiety and depression injury.

The Panel is of the opinion that the Plaintiff’s soft tissue injury of the right shoulder (now resolved) resulted from and was, but is no longer materially contributed to by the alleged right shoulder injury.  The Panel is of the opinion that the work related contribution would have ceased by 30 December 2015.

Question 4In any and if so what period from 1 July 2014 up to and as at the date of the Panel’s examination has the Plaintiff had:

a)An incapacity for her pre-injury duties;

b)No current work capacity,

likely to last indefinitely?

Answer:The Panel is of the opinion that from 1 July 2014 up to and including the 30 December 2015 the Plaintiff had an incapacity for her pre-injury duties and no current work capacity.

The Panel is of the opinion that from 1 January 2016 and as at the date of the Panel’s examination the Plaintiff had no and has no inability arising from an injury such that she is not capable of performing her pre-injury employment or in suitable employment.

Question 5If yes to any part of Question 4 then does that incapacity result from or is/was it materially contributed to by any and if so which of the alleged injuries?

Answer:The Panel is of the opinion that the from 1 July 2014 up to and including the 30 December 2015 the Plaintiff’s incapacity for work resulted from and was materially contributed to by the alleged right shoulder injury.”[63]

(sic)

[63]See exhibit “C” at pages 15-16 DCB

111     As I have already recorded, the defendant also relies on the medico-legal psychiatric report of Dr Nicholas Ingram, who examined the plaintiff on behalf of those acting for the plaintiff.

112     After interviewing the plaintiff and making a mental state examination, Dr Ingram assessed the plaintiff to be:

“… suffering from a chronic adjustment disorder with depressed and anxious mood.  This is a secondary consequence of her chronic pain and her physical limitations and if it is accepted that her pain is related to her work, then her psychological problems are related to her work.”[64]

[64]See exhibit 4 at page 98 PCB

113     Dr Ingram also stated that the plaintiff’s limitations for work are related to her pain, although her Depression may have some impact on her ability to work.

114     Those acting for the defendant also rely on the letter from the orthopaedic surgeon, Mr John Cunningham, to the treating orthopaedic surgeon, Mr Love.  Mr Love had arranged for the plaintiff to be examined by Mr Cunningham to determine whether any of the pain which the plaintiff suffers could be related to her cervical spine.  When examined by Mr Cunningham, the plaintiff complained of pain radiating from her shoulder down her arm, in what Mr Cunningham described as a “very non dermatomal distribution”.[65]  Furthermore, Mr Cunningham found that the upper and lower limbs of the plaintiff were neurologically normal. 

[65]See exhibit “B” at page 28 DCB

115     Ultimately, the reading of such letter would suggest that Mr Cunningham did not think her symptoms were emanating from her neck and, in particular, he stated:

“I am confident that her symptoms are eminating (sic) from her shoulders.  Whether or not she makes a good surgical candidate or not I will leave it up to you.”[66]

[66]See exhibit “B” at page 28 DCB

The cross-examination of the Plaintiff

116     Under cross-examination, the plaintiff confirmed that when she initially worked with the defendant, the defendant was situated in Tullamarine, where she remained to about 2001.  The plaintiff stated that the defendant then moved to Bendigo, after which they then moved to Dandenong, where she worked when she resumed work with the defendant in 2007.  The plaintiff accepted that in order to get to work in Dandenong she had to travel with her husband about 60 kilometres each way every working day.

117     The plaintiff also confirmed that when her husband ceased work with the defendant in November 2012, she drove on her own and she accepted the suggestion of counsel that it was “not easy”.  When taken to aspects of her first affidavit, the plaintiff confirmed that she was having some pain in her right shoulder in about mid-2012.  At the commencement of that pain, she had no pain in her left shoulder.

118     When it was put to her that her left shoulder pain did not come on until June 2014, the plaintiff disagreed with such proposition and asserted that her left shoulder pain commenced in or about 2012, but after the commencement of the right shoulder pain.  

119     The plaintiff accepted that over the years she had attended two medical clinics – the Melton Highway Clinic at Sydenham, where she was treated by a Dr Salib and the Cairnlea Medical Centre, where she was treated, initially by a Dr Chu, and later Dr Cenap.  The plaintiff agreed that she had attended the Melton Highway Clinic from about April 2009 to about mid-2014 (attending Dr Salib), and that she first attended the Cairnlea Medical Centre in or about October 2010.  The plaintiff also accepted that from about 2014 she mostly attended Dr Cenap for her left and right shoulder problems.

120     The plaintiff disputed that the first time she made a complaint about any left shoulder pain was to Dr Cenap on 7 June 2014.  The plaintiff suggested that she had previously told Dr Salib.

121     The plaintiff was queried about her assertion that she went overseas in 2013 and 2014 to visit her mother.  The plaintiff accepted that she took extended leave from work in order to visit her mother and in particular stated, when queried about her purpose, to look after her mum:

A:“Correct.  I didn’t actually look after my mother and I didn’t go and look after her as such, I just wanted to be with my mother.  She was very sick.  The other siblings were looking after my mother.

Q:So the other siblings were looking after your mother, and you were standing and watching.  Is that right?---

A:My mother is - was suffering from dementia and my concern was I wanted to have a decent conversation with my mother prior - before she can - before so she could remember me, because I knew that one day she wasn’t going to remember me.”[67]

[67]T24, L9-21

122     The plaintiff accepted that she left work on 30 May 2014 because of her ongoing shoulder pain and that her employer had kept her job open for her after that.  The plaintiff also accepted that on the day after ceasing work she lodged a Worker’s Compensation Claim for her right shoulder, but the claim for her left shoulder was not lodged until December 2016.

123     When queried about the effect of injections into her shoulders in June 2014, the plaintiff stated that she felt “some numbness or relief I can say for about two or three days but that was it”.[68]

[68]T27, L10-11

124     The plaintiff also asserted that physiotherapy undertaken by her did not give any benefit.  When pressed by counsel in relation to that assertion, the plaintiff conceded that the physiotherapy “maybe softened my shoulders a little, but my shoulders are still in pain”.[69]

[69]T27, L30-31

125     The plaintiff also accepted that she has been given exercises to do at home, which have been undertaken on various occasions.  In particular, she accepted that she was under the care of the physiotherapist, Mr Kenan Kilic, and that because of the lack of change in her condition she was discharged from his care with a recommendation that she continue to perform home exercises.  The plaintiff explained that she performs a part of these exercises every second day and that according to the plaintiff, that gives her “some comfort in my shoulders, yes”.[70]

172     In this respect, counsel for the defendant noted that the initial treating orthopaedic surgeon, Dr Love, recommended that the plaintiff undergo a chronic pain treatment at the Epworth Hospital.  Indeed, as did the later treating surgeon, Mr Steve Csongvay.

173 It is clear that the onus is on the plaintiff to satisfy s134AB(38)(g) of the Act before leave could be given in relation to claiming pecuniary loss.[118]

[118]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [30]; Carbone v Toyota Motor Corporation Australia Ltd (op cit) at paragraph [62]

174     In particular, the evidence establishes that the plaintiff initially attended on the first day (or perhaps also on a second day), but did not complete such course – according to her, because of financial restraint.

175 After a consideration of all the evidence, I am of the opinion that the plaintiff has discharged her onus in relation to s134AB38(g) of the Act, in that she acted reasonably in her attempts to participate in rehabilitation or retraining.

176     I initially refer to the third affidavit of the plaintiff, where, at paragraph 4, she states:

“I wish to add to that affidavit that, in about late April and May 2017, I attended a pain management program assessment at Epworth Rehab, after a referral from Dr Love.  After my assessment, the doctors at the Epworth told me that I needed a 12-week program.  I understand that there was then a dispute between the Epworth and the defendant’s WorkCover agent, CGU, about the cost of the program.  CGU would only agree to fund 4-weeks of this program.  Unfortunately, I cannot afford to fund the rest of 8-weeks of the program, and so attending the pain management course is not a possibility for me.”[119]

[119]See exhibit 1 at page 15 PCB

177     I refer to paragraphs 142 to 144 of this Judgment, whereat I set out the evidence surrounding the plaintiff’s situation with the pain management course.

178     I also note that the plaintiff gave evidence, which I accept, that although she had over the years since ceasing work a sickness allowance, then a Newstart allowance, and then a sickness allowance again, she had not received any benefits from Centrelink since some time in 2015.  She did give evidence that she has applied to obtain, presumably a Disability Support Pension, but had been unsuccessful.

179     Furthermore, the plaintiff gave evidence that her husband, who has been off work for two years longer than the plaintiff, presently is paid a Centrelink pension consisting of $670 each fortnight, which is partly a carer’s pension, and also some type of disability payment for him.  Accordingly, the weekly income to the household was $335.00.

180     Furthermore, the plaintiff gave evidence there was an outstanding mortgage of $40,000 on their residence and that a substantial amount of money had been obtained from her brother-in-law who was, effectively, paying the mortgage, and that the debt to the brother-in-law would be paid when the plaintiff and her husband have enough money.

181     I have come to the view that the plaintiff did act reasonably for the following reasons:

(a)   Hitherto, the plaintiff had complied with all medical directions – in relation to the taking of the injections, attending physiotherapy, attending hydrotherapy and performing home-based exercises.  In particular, in his report dated 20 August 2017, Dr Cenap records:

“Mrs. Ozen is very compliant with her treatments.  … .”[120]

[120]PCB 40

(b)   The plaintiff did not equivocate at all and freely accepted that Mr Love had referred her for the pain management clinic.  In particular, the plaintiff did attend Dr Olivia Ong at the Epworth Rehabilitation Hospital.  The plaintiff also gave evidence that she was shown some particular movements or exercises on the day that she attended Dr Ong and believes that she also saw three different professionals on that day for the assessment;

(c)   I also refer to exhibit 6.[121]  That document is a letter sent to the plaintiff from the insurer of the defendant.  On the second page of the document under the heading “Reasonable Costs”, are the words:

[121]See exhibit 6 at pages 118-119 PCB

“Please note that payment of the reasonable costs of medical and like expenses does not necessarily mean payment of the full costs.  In some cases there may be a gap between what the provider charges you and what CGU can pay as reasonable costs.”

Those words were in a letter which was not just a generic letter about medical and like expenses but directly relating to a pain management course to be conducted by Dr Ong.  It is also to be noted that the letter contained the assertion that –

“Further approval for the pain management program will require a review of the outcome measures.”

It must be borne in mind that the plaintiff is a Turkish woman who has Year 8 education and not a complete command of English.  She was in the company of her husband, who is also Turkish.  Her actions must be seen in that context, together with her financial circumstances existing at that time.  As I have stated, I do accept her evidence that the weekly income was effectively $335.00 per week, with an outstanding debt of $40,000 to her brother-in-law.  Hindsight may suggest that the plaintiff should have contacted the insurer or made more enquiries at the rehabilitation centre as to what was going to be the cost, if anything, to her.  However, one can well understand that someone living on a limited amount of resources at that time would be acutely conscious of the risk of having to fund, at least in part, some rehabilitation program.

182     Counsel for the defendant submitted that, consistent with Carbone,[122] it was not permissible for the plaintiff to aggregate the effects of the injury to her right shoulder and the effects of her injury to her left shoulder in order to determine whether the impairments taken collectively were serious, it was submitted that each shoulder injury has to be assessed individually.

[122](Op cit) at paragraph [58]

183     It is unclear whether this point was argued in detail before the Court of Appeal but in any event, it is worth noting that a large body of cases would suggest that bilateral shoulder injuries et cetera can be treated as a single impairment of a body function, that is, generally manual dexterity.

184     I refer to an earlier decision of Wilson v S T Hamilton & Sons Constructions Pty Ltd, wherein I stated:[123]

[123][2016] VCC 1448

“I refer to the Court of Appeal decision of To Ha Lu v Mediterranean Shoes Pty Ltd & Ors,[124] which involved an appeal from a refusal by a County Court judge to grant leave to the worker, pursuant to s135A(4)(b) of the Act, to bring an action for damages in respect of ‘injuries’ the worker claims he suffered ‘on or about 18 September 1995’. Although that appeal involved s135A of the Act, there would appear to be no good reason why the propositions enunciated in that decision do not apply to s134AB of the Act.

[124][(2000) 1 VR 511]

Before the Court, the worker alleged that the injuries were a ‘serious injury’ within the meaning of paragraph (a) of the definition of that term in s135A(19) of the Act.[125]

[125]For present purposes the definition referred to involves organic impairment with organic consequences

The worker had been employed by Mediterranean Shoes Pty Ltd from October 1990 in an unskilled capacity, and during the course of such employment, experienced the following ‘injuries’:

(i)     in or about July or August 1995, he began experiencing pain in the outer side of his right elbow and just above.  He continued to work, and on 4 September 1995, when he was performing his duties, he was struck by a mould weighing approximately 2 kilograms, striking him on the right shoulder.  The worker made a claim, although the claim form only referred to his elbow injury and made no mention of the right shoulder aspect.  The claim was accepted and ultimately, it was also accepted that the worker had sustained a permanent impairment of his neck and ‘right upper limb’ for compensation under the Act;

(ii)     on returning to work in August 1996, he ceased after one-and-a-half weeks, claiming difficulties, and then resumed work in March 1997 but was told to stop work after two weeks by his doctor.  At that time, he was experiencing pain on the outer side of his right elbow, radiating up to his upper arm and down into his forearm and he also had pain in his right shoulder and right side of the centre of his neck.

Although not entirely clear, the Court of Appeal considered that, at first instance, the worker contended that the injury to his right shoulder, taken alone, was a ‘serious injury’ as it caused a serious long-term impairment of a body function, namely the worker’s right arm;

(iii)Alternatively, even though each of the elbow injury and the shoulder injury was not, by itself, a ‘serious injury’, in combination they produce such an injury, in that they caused a serious long-term impairment of a body function, namely his right arm; and

(iv)In the further alternative, the shoulder injury aggravated the pre-existing injury and it was the aggravation that was the ‘serious injury’.

It was common ground, both in the County Court and before the Court of Appeal, that the elbow injury, taken alone, was not a ‘serious injury’.  At first instance, the judge rejected the submission that the shoulder injury, taken alone, was a ‘serious injury’.  Furthermore, the judge at first instance held that the worker could not relevantly aggregate the two injuries and therefore claim that he suffered a ‘serious injury’.  He also concluded that the shoulder injury did not aggravate the pre-existing right elbow injury so as to make the aggravation itself a ‘serious one’.

At the Court of Appeal, counsel for the worker challenged the correctness of the decision at first instance in two ways:

(a)   Even if each of the two injuries was not a ‘serious injury’, the judge at first instance erred in not aggregating them for the purpose of determining whether, in combination, they caused a serious long-term impairment of the worker’s right arm.  In this sense, it was submitted that the two injuries caused an impairment of the one body function, namely, the worker’s right arm, and gave rise to one cause of action.  They submitted that they should have been considered together in order to determine the extent of the impairment flowing from them. 

In dealing with this argument, Chernov JA delivered the major judgment (with which Winneke P and Buchanan JA substantially agreed).  In determining whether the judge at first instance erred in not relevantly combining the two injuries to determine whether the worker’s ‘injury’ was a ‘serious injury’ for the purpose of s135A(6) of the Act, Chernov JA stated:

‘In my view, the short answer to Mr Bingeman’s principal submission is that the two injuries in question impaired two separate body functions, namely, the plaintiff’s right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries 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). … .’[126]

[126]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraph [23]

Later in his judgment, Chernov JA stated:

‘No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function.  In those circumstances, the applicant must demonstrate that that injury is a ‘serious’ one.  But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.

Mr Bingeman accepted, correctly I think, in view of what was said by the majority in Humphries v Poljak on this issue,[127] that it is not permissible in a multi-injury case to look at a number of impairments resulting from the injuries, not any one of which is a serious and long-term impairment, and see if, together, they constitute an impairment which is serious and long term.  Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated.  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 that body function is serious and long term.  …  But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents.  In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes, must be considered separately.  … .’[128]

[127]Humphries & Anor v Poljak [1992] 2 VR 129 at 130

[128]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraphs [26]-[27]

(b)     Again, later, in answer to further submissions put by Mr Bingeman based on the majority in Humphries & Anor v Poljak[129] that two injuries can be relevantly aggregated, Chernov JA stated:

[129]Op cit

‘It is true that, in the context of determining if a body function has been relevantly impaired, their Honours said that the impairment may have been caused by ‘two or more injuries acting together to cause such impairment …’.  But that was said in the context of the injuries having arisen from the one incident and there is nothing in their Honours’ reasons from which it could be inferred that they intended to extend what they said to injuries that have arisen from two or more discrete incidents.  To the contrary, in my view, their Honours intended such aggregation to be limited to injuries that impair the one body function and which have arisen from the one incident.  … .’[130]

[130]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraph [29]

It is also to be noted that Buchanan JA also stated:

‘I think that the identification of a body function for the purpose of determining the application of para (a) of the definition of ‘serious injury’ in s 135A(19) of the Accident Compensation Act 1985 depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. … .’[131]

[131]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraph [3]

I also refer to the decision of Lakic v GB Galvanizing Service Pty Ltd & Anor,[132] wherein Judge Gebhardt at first instance accepted bilateral hand/wrist injuries amounted to a single body function and granted serious injury leave for an unskilled process worker involved in repetitive work.  Such matter was appealed to the Court of Appeal and, on 22 February 2001, in dismissing the leave to appeal application, the Court of Appeal stated (with no further comment):

[132](Unreported) VCC, 23 November 2001, No 2000 of 05195

‘We have considered that his Honour’s conclusion that the respondent had suffered a serious injury is not … with sufficient doubt to warrant the grant of leave.’

Indeed, a perusal of various decisions in the County Court would suggest that workers suffering a bilateral carpal tunnel syndrome are to be assessed on the basis that there was one impairment to the body function of manual dexterity.[133]

[133]See for example Baltruschaitis v G & K O’Connor Pty Ltd (unreported, VCC, 16 May 2001, per Judge Duggan)

I also refer to the leading decision of Grech v Orica Australia Pty Ltd & Anor[134] which also involved bilateral carpal tunnel syndrome. The case largely concerned the proper approach in determining a serious injury where a condition of carpal tunnel syndrome traversed 20 October 1999 – the date for which injuries occurring on or after that date are referable to s134AB of the Act. However, in that decision, Ashley JA (delivering the major judgment of the Court), stated:

‘There were, I have concluded, a number of errors in the judge’s consideration of the plaintiff’s application.  I think it very probable that a finding should have been made, on consideration of all the evidence, and applying principle correctly, that the plaintiff suffered identifiable compensable injury to his wrists and hands on and after 20 October 1999 which resulted in or materially contributed to the consequences which the plaintiff claimed constituted serious injury.  Whether those consequences amounted to serious injury was a matter which a County Court judge experienced in this area of work was well-fitted to determine.’[135]

There have been a variety of cases decided in the County Court where bilateral shoulder conditions and other bilateral injuries to the arms have been treated as an impairment of one body function – generally manual dexterity.[136]

I consider that it must be borne in mind that, consistent with the plaintiff’s evidence that his work experience involved ‘hands on’ employment, and his employment with the defendant – to wit, the operation of the grader – involved manual dexterity involving the use of both arms.  Furthermore, clearly enough, the symptoms of epicondylitis emerged over the course of performing that type of work.

As I have highlighted in Lu, the impairment or loss of a body function is not limited to the function of that part of the body directly affected by an injury.  Furthermore, two or more workplace injuries can be looked at together in combination if they affect the one body function and they arise out of the same relevant incident.”

[134](2006) 14 VR 602

[135]       See Grech v Orica Australia Pty Ltd & Anor (op cit) at paragraph [79]

[136]See Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800 per Judge Jordan (bilateral shoulders); Ristovska v VOA WebCo Pty Ltd [2010] VCC 152 per Judge K L Bourke (bilateral carpal tunnel syndrome and bilateral epicondylitis); Wright v Mount Edisar Pty Ltd [2006] VCC 410 per Judge Anderson (bilateral wrists); Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805 per Judge Misso (bilateral hands); Nguyen v Aisin Australia Pty Ltd [2012] VCC 799 per Judge Kings (bilateral shoulders); Cartes v Silcraft Pty Ltd [2011] VCC 1502 per Judge Carmody (bilateral shoulders).

185     In the circumstances of this case, I do not consider that much turns on whether one looks at the impairment as a bilateral impairment or individual impairments to the left and right shoulders. 

186     In this respect, I note the unchallenged evidence of the plaintiff in her first affidavit was that she was earning $995.60 gross per week which translates to a gross yearly amount of $51,771.20.  Sixty per cent of that is $35,062.72, or approximately $674.00 per week. 

187     I take into account that the plaintiff is an uneducated woman who has performed manual work for most of her working life and although capable of speaking English, is not totally fluent.  Moreover, the plaintiff confirmed that since being in Australia, she has obtained a food handling course certificate after a one-day course when performing child work, and obtained a Certificate IV in Safety when employed by the defendant.  She has no other particular training. 

188     Generally, I accept the opinion of the treating general practitioner who has opined that in relation to her right shoulder, the plaintiff has no capacity for work – either pre-injury or alternative work, and similarly for the left shoulder.  Furthermore, the treating orthopaedic surgeon until late 2016, Dr Love, opined that the plaintiff was incapable of returning to her pre-injury employment, and alternative duties may be difficult as well.  Furthermore, he said even if she were to return to some sort of work, it would be at restricted hours of approximately ten to twenty hours per week, with as minimal repeated actions as possible.

189     The opinion of the subsequent treating orthopaedic surgeon, Mr Csongvay, was not dissimilar, in that he considered that the organic injury to her right shoulder prevented her from performing her pre-injury duties, and it would have been a “significant effect on her ability to undertake any form of physical work/employment into the foreseeable future”.  He expressed a similar view in relation to her left shoulder.

190     I will not refer to the opinions of Mr Pullen or Mr Flanc in relation to capacity as those opinions were expressed some number of years ago.

191     Mr Chehata thought the plaintiff was incapable of performing her pre-injury employment and further, that he “would struggle to envisage that she would be able to cope to find alternative duties”.   He further noted that the ideal scenario would be that of administrative work  some sort of computer-based duties, but felt that the lack of language and education would make this difficult.

192     Even those who thought the plaintiff may have some capacity to perform alternative employment, included restrictions to avoid over shoulder reaching, avoiding pushing, pulling, carrying and lifting over 5 kilograms, avoiding repetitive shoulder work, and avoiding sustained forward reaching.[137]

[137]See the report of Dr Slesenger, exhibit 4 at page 111-1 PCB

193     When examined by Dr Doig, who examined the plaintiff on 10 January 2017 on behalf of the insurer of the defendant, he was of the opinion that she was unfit for pre-injury duties and if fit for restricted duties, such duties would have to have a less than 2-kilogram lifting, pushing and pulling limitation at or below waist height with each arm, and that she could not be lifting any more than 5 kilograms with both arms.  Furthermore, she would have a limited use of both arms overhead.

194     After a consideration of all of the evidence, I consider that the plaintiff is clearly unfit for pre-injury employment and indeed, realistically is unfit for any alternative employment.  If I be wrong about that, such alternative or suitable work would be no more than ten to twenty hours per week.  Of course, the defendant has not nominated any employment given the opinion that neither the right shoulder has recovered from the “work injury” and indeed, the left shoulder being never compensable.  It is hard to envisage what type of work a woman with her industrial background could perform.

195 I am of the opinion that the plaintiff has satisfied the pecuniary loss aspects of s134AB and as a matter of statutory construction, is entitled to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” in respect of her left shoulder condition and her right shoulder condition.

196     I should add that the result would be no different if indeed, it was said that the bilateral shoulder condition gave rise to one impairment of manual dexterity.

Conclusion

197     Accordingly, I give leave to the plaintiff to claim common law damages for pain and suffering and pecuniary loss in respect to her left shoulder injury and her right shoulder injury arising out of or in the course of her employment with the defendant.  I will hear the parties on costs.

Annexure “A”

1       The plaintiff tendered the following material:

·The affidavit of the plaintiff sworn on 5 December 2016 (“the first affidavit”); 17 August 2017 (“the second affidavit”) and on 10 October 2017 (“the third affidavit”).

(All such material is found at pages 1-15 of the Plaintiff’s Court Book (“PCB”)).

Exhibit 2:

·Medical reports of the general practitioner, Dr Umit Cenap, dated 25 August 2014, 9 May 2016, 19 December 2016 and 20 August 2017.

·Medical reports and letters of the orthopaedic surgeon, Mr David Love, dated 11 June 2014 (two documents), 23 June 2014, 30 July 2014, 1 September 2014 (two documents), 17 December 2014 (two documents), 20 June 2016 (three documents), 13 September 2016, 23 November 2016 (two documents) and 21 August 2017.

·Report of physiotherapist, Mr Kenan Kilic, dated 16 December 2014.

·Report of the specialist rehabilitation physician, Dr Olivia Ong.

·Reports of the orthopaedic surgeon, Mr Steve Csongvay, dated 5 September 2017 and 21 November 2017.

(All such material is found at pages 29-65.8 PCB).

Exhibit 3:

·Right shoulder ultrasound undertaken on 15 May 2014.

·Left shoulder ultrasound undertaken on 12 June 2014.

·Right shoulder ultrasound-guided steroid injection dated 18 June 2014.

·MRI scan of cervical spine dated 20 July 2016.

·MRI scan of the right shoulder dated 9 August 2017.

·MRI scan of the left shoulder dated 9 August 2017.

(All such material is found at pages 66-74 PCB).

Exhibit 4:

·Medico-legal report of the orthopaedic surgeon, Mr Christopher Pullen, dated 25 August 2014.

·Medico-legal report of the vascular and general surgeon, Mr Charles Flanc, dated 13 November 2014.

·Medico-legal report of the pain physician, Dr Symon McCallum, dated 9 August 2017.

·Medico-legal reports of the orthopaedic surgeon, Mr Ash Chehata, dated 10 October 2016, 8 December 2016 and 15 August 2017.

·Medico-legal report of the specialist occupational physician, Dr Joseph Slesenger, dated 22 August 2017.

(All such material is found at pages 75-111-12 PCB).

Exhibit 5:

·Medico-legal report from the orthopaedic surgeon, Dr Graeme Doig, obtained on behalf of the defendant, such report dated 10 January 2017.

(Found at pages 112-117 PCB).

Exhibit 6:

·CJU Notice of Acceptance of Request for Pain Management Program, dated 19 June 2017.

(All such material is found at pages 118-120 PCB).

Exhibit 7:

·Medico-legal report from the occupational physician, Dr David Elder, dated 14 July 2016 (and attachments).

·A letter from the insurer to the plaintiff dated 17 March 2017.

·A medical certificate given to the plaintiff dated 30 August 2014.

(All such material is found at pages 117.1 – 125 PCB.)

2       The defendant tenders the following material:

Exhibit A:

·The medico-legal reports of the rheumatologist, Dr Tony Kostos, dated 3 November 2016, 9 October 2017, 30 October 2017 and 2 November 2017.

·The medico-legal psychiatric report from Dr Dush Shan, dated 16 November 2017.

·The medical-legal psychiatric report from Dr Nicholas Ingram, dated 16 August 2017.

(All such material, other than the report of Dr Ingram, found at pages 1 to 14 of the Defendant’s Court Book (“DCB”); report of Dr Ingram found at pages 95-99 PCB).

Exhibit B:

·The letter from the orthopaedic surgeon, Mr John Cunningham dated 16 August 2016.

(Such letter found at page 28 DCB).

Exhibit C:

·Medical Panel Opinion dated 24 July 2017.

(Such Opinion found at pages 15-16 DCB).