Ponjiger v Crusader Property Services Pty Ltd
[2018] VCC 1676
•19 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-05520
| MIRJANA PONJIGER | Plaintiff |
| v | |
| CRUSADER PROPERTY SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 8 June 2018 | |
DATE OF JUDGMENT: | 19 October 2018 | |
CASE MAY BE CITED AS: | Ponjiger v Crusader Property Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1676 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation
Catchwords: Serious injury; shoulder and arm injury; disentanglement;
onus of proof
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Peake Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering v McKinnon [2010] VSCA 69
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. O’Dwyer SC with Mr L. Allan | Marsh & Maher Richmond Bennison |
| For the Defendant | Mr D. Myers | Landers |
HIS HONOUR:
Introduction
1 Mirjana Ponjiger was employed by Crusader Property Services Pty Ltd (“Crusader”) as a school cleaner when she suffered an injury to her left shoulder and arm in November 2012. At that time Ms Ponjiger was 61 years of age, and was performing cleaning work on a contract basis together with her husband.
2 Following the injury Ms Ponjiger received conservative medical treatment and performed light duties on restricted hours until approximately September 2014, when the contractual arrangements for the cleaning changed.
3 Ms Ponjiger then formed a company with her daughter which took over part of the work which she had previously performed on behalf of Crusader. She continued to perform work which she describes as “two hours of light duties and one and a half hours of supervising work”[1] up to October 2017 when the company lost its cleaning contract.
[1]Exhibit G, p 6 [52]
4 Ms Ponjiger seeks leave to claim damages for both pain and suffering and pecuniary loss on the basis that she had suffered a serious injury as defined in section 134AB(37) of the Accident Compensation Act 1985 (“the Act”).
5 Mr O’Dwyer SC, who appeared with Mr Allan for the plaintiff, relied upon paragraph (a) of the serious injury definition, identifying the left shoulder and arm as the body function said to be relevantly lost or impaired. Mr O’Dwyer SC also made reference during the application to symptomatology relating to Ms Ponjiger’s neck, which was said to be referrable to the left shoulder injury.
6 Mr Myers, who appeared on behalf of the defendant, did not challenge the initial occurrence of injury, but maintained that the plaintiff’s claim was limited to the consequences of injury affecting the left shoulder, elbow and forearm. Specifically the defendant argued that no claim in relation to the plaintiff’s neck had ever been made.
7 Mr Myers also took issue with the existence of pre-injury unrelated medical conditions, and subsequent injuries which were said to impact on the consequences referrable to Ms Ponjiger’s original compensable condition.
8 Mr Myers also made reference to the ongoing employment arrangements which he submitted did not correctly describe the full extent of the plaintiff’s incapacity. In those circumstances the defendant denied that the plaintiff had an entitlement to leave in respect of either pecuniary loss or pain and suffering.
9 The application before me relied largely on documentary material tendered by each of the parties. The plaintiff was the only witness required for cross‑examination.
The evidence
10 Ms Ponjiger swore three affidavits on 20 July 2017, 8 May 2018 and 6 June 2018.[2] A further affidavit in support from her daughter, Anuska Ponjiger, sworn on 6 June 2018[3] was also tendered into evidence. This affidavit provided considerable detail as to the contractual and corporate arrangements under which cleaning work was available to the plaintiff after Crusader had lost the school cleaning contract in late 2014.
[2]Exhibit G, pp 1-16E
[3]Exhibit G, pp 16F-J
11 In Ms Ponjiger’s first affidavit she deposed to working mainly in manual occupations up until commencing work with the defendant full-time in July 2007. She also admitted to earlier conditions, including lower back pain, some left shoulder pain dating from 1982, carpal tunnel syndrome and psychological issues.[4]
[4]Exhibit G, p 2 [10]-[16]
12 She then described a particular incident on 30 November 2012, working at the Catholic Ladies College in Eltham when:
“Something fell off the door and hit my left shoulder and arm area. My arm was wrenched back and I fell down.”[5]
[5]Exhibit G, pp 3-4 [27]
13 Ms Ponjiger went on to describe the treatment she had received and her inability to return to her pre-injury work:
“… I never got back to much more than round 4.5 hours of work per day after the left shoulder injury, and I never returned to my pre-injury duties. I performed only light cleaning work and supervising work. When I was doing cleaning work, I would restrict myself to the lighter cleaning and take it easy.”[6]
[6]Exhibit G, p 5 [46]
14 Ms Ponjiger also made reference to a subsequent injury in a fall in September 2015 which she believed caused a temporary aggravation to her left shoulder:
“The fall limited me further at work for a few months. I had scans during this period of my spine, right shoulder and hip. I was having dizziness and blackouts which I believe was by reason of my neck injury. These still occur.”[7]
[7]Exhibit G, p 6 [50]
15 The affidavit also described Ms Ponjiger separating from her husband, although they continued to reside in the same house.
16 The initial affidavit described the symptoms impacting at that time on her shoulder and arm, and the consequences impacting on her enjoyment of life and her employment capacity. Of some significance was the following statement:
“(a) My left shoulder injury resulted in a permanent reduction in my working hours from over 40 per week to around 3-4. I was never able to return to my full pre-injury duties either.
(b) While the 9 September 2015 fall caused me to reduce my work load for some time, the major reason why I still have not returned to my full hours or duties as a cleaner is the left shoulder injury.
(c) Before the left shoulder injury, I had intended to work until I was at least 67 years of age, if not longer. I have always been a hard working woman.
(d) I believe that, as a result of my left shoulder injury, I have now suffered a loss of the wages I would have earned as a cleaner or in other employment until now, and of the earnings I would have had into the future, until at least age 67.”[8]
[8]Exhibit G, p 9 [59]
17 In Ms Ponjiger’s second affidavit she described in some detail the contractual arrangements relevant to the school cleaning from September 2014 until the head contractor terminated the availability of work in October 2017.[9] She then made reference to work arranged through her daughter Anuska, which involved cleaning the offices of the Air Ambulance Service in Essendon Fields. She had reunited with her husband at that stage.
[9]Exhibit G, pp 11-12 [5]- [13]
18 Ms Ponjiger referred to taking Mersyndol and Aspirin on a regular basis as well as using massage and other conservative measures on her shoulder. At that time she was seeing her general practitioner every few months. She described:
“… constant left shoulder pain, with the nerve-grabbing feeling that I described previously. The pain still goes down into my elbow and arm with the pins and needles feeling, particularly when I have been more active during the day. The pain also seems to go up into the left side of my neck at times.”[10]
[10]Exhibit G, p 13 [20]
19 Ms Ponjiger described in further detail various activities that caused difficulty with her left arm and shoulder. She also made reference to some right shoulder and arm difficulties experienced in recent times, but stated this was not nearly as bad as those affecting her left shoulder.
20 Ms Ponjiger described her work restrictions as follows:
“At the Air Ambulance Service, I can work at my own pace since I am working with my family, and my daughter or my husband will handle the heavy stuff. For the most part, I use my right hand for all the cleaning work. I really just use my left hand to carry a small cleaning container with chemicals in it that weighs around 2kg.
The work I do for my daughter is extremely light and slow paced compared to the regular cleaning work that I did before I hurt my left shoulder. It is not comparable to cleaning work that exists on the open market.”[11]
[11]Exhibit G, p 15 [31]-[32]
21 The second affidavit described what was said to be Ms Ponjiger’s loss of earning capacity.[12]
[12]Exhibit G, p 16 [36]- [40]
22 The final affidavit sworn on 6 June 2018 was largely concerned with the invoicing method used by Ms Ponjiger and her husband prior to her sustaining injury. In that affidavit Ms Ponjiger deposed to working between 83.5 hours and 131 hours per fortnight during the period 21 July 2012 to 23 November 2012.[13]
[13]Exhibit G, p 16C [5] & [11]
23 Ms Ponjiger was then cross-examined. I noted the following matters as relevant to my determination:
· Ms Ponjiger injured her coccyx bone in 1988 and has low back pain from time to time – “not that much now.”[14]
[14]Transcript (“T”) 20, Line (“L) 13-21
· She had last experienced back pain when seeing Dr Brazenor in 2009.[15]
[15]T 21, L 1-13
· Ms Ponjiger maintained she was working 38 hours a week between 2007 and 2011, and denied telling Mr Brazenor in April 2008 that she was working 17 and a half hours a week as a supervisor.[16]
[16]T22, L 1-21
· She agreed she had carpal tunnel syndrome on the left side diagnosed by Dr Freilich after the shoulder injury.[17]
[17]T 24, L 9-21
· She disagreed with a history recorded by Mr Brazenor that she had lost her job in July 2007 and had not worked up until when she saw him on 4 April 2008.[18]
[18]T 27, L 18-26
· Ms Ponjiger maintained that even when she had a supervisory role she would do approximately one and a half hours supervising and the rest was a hands-on job. This was when working with Crusader.[19]
[19]T 28, L 6-11
· To further questioning Ms Ponjiger agreed that she had seen her general practitioner and sometimes took painkillers and had investigations for coccyx pain, contrary to her earlier evidence that she had had no back pain since 2012.[20]
[20]T 28, L 15 to T 29, L 15
· Ms Ponjiger saw Dr Stockman, a rheumatologist, in March 2013 for her left ankle, foot and neck, but not for her right shoulder.[21]
[21]T 29, L 21-31
· Her knee had been a problem following a fall at home on Christmas Day, but she had no treatment for the ankle or foot other than medication.[22]
[22]T 30, L 7-30
· She then agreed with a referral letter from Dr Ansari stating that her left ankle, foot and knee had been worrying her considerably since her fall in January 2007.[23]
[23]T 39, L 5-18
· In the few months immediately after the injury Ms Ponjiger went to the school to supervise and to ensure the college was locked up.
“I was on the school premises but I didn’t work.”[24]
[24]T 35, L 7-21
· She disagreed with a recording of her working hours ten days following the injury showing that she had worked 101 hours between 10 December and 21 December 2012. She maintained this was her husband’s hours.[25]
[25]T 38, L 22-28 & Exhibit G, p 105
· Ms Ponjiger had nerve conduction studies which diagnosed carpal tunnel syndrome. She continued to work four and a half hours a day through 2014. She later modified this to four and a half hours “with my rest.”[26]
[26]T 52, L 18 to T 53, L 14
· Ms Ponjiger agreed that her rheumatologist, Dr Stockman, had suggested physiotherapy and cortisone injections. She did not have the cortisone injections and could not recall physiotherapy, “it’s been a long time ago.”[27]
[27]T 55, L 19-29
· Ms Ponjiger agreed that several doctors and the Medical Panel had noted she was working four and a half hours per day, five days per week, but maintained it was one hour of supervising and three and a half hours doing light cleaning.[28]
[28]T 56, L 15 to T 57, L 12
· Ms Ponjiger had suffered a second injury when she fell down a flight of stairs in September 2015. She had a concussion, a few cuts on her head and her body was sore, including her back and rib cage. She stopped work for a few days.[29]
[29]T 60, L 3-21
· Ms Ponjiger later agreed that she had hurt her right shoulder and her left shoulder:
“I mean I was sore all over my body.”[30]
[30]T 60, L 26-31
· She agreed that she had again hurt herself on 9 June 2017 when she suffered an injury to her right rib cage, right trapezius muscle, right paraspinal muscles and right knee. She agreed she was not working following that injury:
“Just maybe a couple of days, I think, two days.”[31]
[31]T 62, L 15 to T 63, L 5
· Ms Ponjiger agreed she had seen Dr Ansari on 14 June 2017 in relation to injuries received in the fall in September 2015. She agreed she had told him she could not bend, squat or kneel and was unable to work but stated:
“… I no listen to him. I went to work.”[32]
[32]T 64, L 25 to T 65, L 26
· She agreed she had received a certificate from Dr Ansari for the period 14 June to 12 July 2017.[33]
[33]T 65, L 30 to T 66, L 3
· She further agreed that she had seen Dr Ansari on 18 October 2017 complaining of the right-sided injuries suffered in June 2017 which were similar to the right-sided injuries in 2015.[34]
[34]T 66, L 11-27
· Following the attendance on Dr Ansari in October 2017 Ms Ponjiger applied for the aged pension on 6 November 2017. She did not receive a new contract for cleaning at the school.[35]
[35]T 67, L 1-13
· Following the injury in June 2017 Ms Ponjiger made a claim for “just the few weeks which I didn’t work.” She then agreed she withdrew the claim.[36]
[36]T 68, L 27-31
· She agreed she had withdrawn the claim because of the way she was treated by the claims agent’s staff members.[37]
[37]T 69, L 4-9
· Ms Ponjiger agreed that after November 2017 she received her pension and she is now working the maximum number of hours she is allowed while still receiving the full pension.[38]
[38]T 70, L 11-18
· She then agreed that if she had received another cleaning contract in October last year, she would have continued to work. She did not get the further contract from Mr Denago:
“… because they find out with my injury and my age … and my husband’s age.”[39]
[39]T 71, L 2-6
· She also agreed that her husband had undergone major heart surgery.[40]
[40]T 71, L 2-9
· Ms Ponjiger agreed that she spent considerable hours managing the cleaning business sharing the duties mainly with her daughter who otherwise worked full-time as an administrator.[41]
[41]T 71, L 20 to T 73, L 14
· Ms Ponjiger agreed that her last invoice for cleaning at the college was sent on 12 October 2017. She further agreed that she applied for the aged pension in November 2017:
“… because I didn’t have any more income from nowhere and I’m sick and I can’t work.”[42]
· Ms Ponjiger agreed that she had told her doctor she was struggling to cope with back pain in October 2017 and was taking Mersyndol.[43]
· She maintained that in May of this year she would work with her daughter sometimes for an hour and sometimes an hour and a half. She disagreed with a notation from Dr Ansari that she was doing cleaning duties and supervising working three and a half hours per day.[44]
· Ms Ponjiger agreed that she enjoyed her main hobby which involved gardening with orchids. She described this activity, maintaining that the orchids were not heavy and were in small pots.[45]
· She had previously enjoyed dancing. She agreed that she would still go out, but could not remember when she last danced, possibly in 2015 for five or ten minutes when she was restricted by the pain.[46]
[42]T 73, L 19 to T 74, L 22
[43]T 75, L 5-9
[44]T 75, L 13 to T 76, L 11
[45]T 76, L 12-26
[46]T 77, L 2-16
24 Ms Ponjiger was re-examined by Mr O’Dwyer SC and was taken in particular to remittance advices from Crusader Property Services which were tendered in evidence.[47]
[47]Exhibit B (remittance advices from 2 November 2011 to 23 November 2012). Exhibit C (remittance advices from 6 July 2013 to 6 December 2013)
25 Although Ms Ponjiger had no particular knowledge of the hours she had worked, she agreed that the documents tendered represented the hours both she and her husband had worked, and the rates of pay.[48]
[48]T 86, L 14-29
26 On reviewing the documentation provided to her, Ms Ponjiger further added that in early 2014 she and her daughter had established a company known as Be Happy Cleaning Pty Ltd. She was initially director and secretary and made out payslips for the work that she performed.
27 A bundle of payslips from 7 July 2014 to 1 September 2017 was tendered in evidence.[49] Ms Ponjiger was re-examined about a number of entries. She maintained her earlier evidence that following her injury she was in fact only being paid for 3.5 hours per day, although she attended work for 4.5 hours a per day, including her rest break.[50]
[49]Exhibit D
[50]T 90, L 3-18
28 She also gave some further evidence in relation to her attendance at work following the fall in September 2015.[51]
[51]T 91, L 6 to T 92, L 31
29 Finally, in re-examination Mr O’Dwyer SC tendered the complete records from the plaintiff’s general practitioner covering the period 11 December 2003 to 5 June 2018.[52] Ms Ponjiger was asked some questions concerning the notes and agreed that she had various previous medical problems including her lower back, coccyx, left ankle and knee. She gave further evidence that in the years before the November 2012 incident these injuries had not stopped her from working.[53]
[52]Exhibit E
[53]T 94, L 14-24
30 Ms Ponjiger further enlarged on her affidavit evidence concerning medications. She described taking 12 or 13 prescription Mersyndol tablets per week for her headache and shoulder pain. She stated that she would still take them for her shoulder if she did not have headaches.[54]
[54]T 96, L 3-14
31 In view of the large volume of documentation put into evidence during re‑examination I permitted further cross-examination.
32 Ms Ponjiger was asked why she had worked after her injury on 9 June 2017 up until 18 October of that year and then received a certificate to be absent from work until 1 November 2017. She stated that she was working with difficulty and believed it was due to some of the medication she was taking for her cholesterol.[55]
[55]T 99, L 4 to T 100, L 21
33 The plaintiff’s daughter, Ms Anuska Ponjiger, swore an affidavit in support of the application on 6 June 2018. She was not required for cross-examination.
34 This affidavit sets out in some detail the circumstances in which the plaintiff had performed the cleaning work at the Catholic Ladies College over many years and up until 2017. The plaintiff’s daughter deposes to having done some of the cleaning work herself, although only very occasionally:
“I would do this when she didn’t have enough staff, or when I didn’t have much work on myself.”
When I would go in, I would see that the cleaners that Be Happy employed doing all the heavy cleaning. My mother, Mirjana, would be supervising them, checking on the work that they had done, and doing a bit of light dusting and detailing and things like that. I saw that she would take lots of rests, when she would sit down.”[56]
[56]Exhibit G, p 16G [8]-[9]
35 The affidavit continues describing the loss of the cleaning contract with the school in October 2017, and the establishment of a further cleaning business by the plaintiff’s daughter in February 2018. The affidavit describes this contract cleaning as totalling five hours each evening. The affidavit describes the plaintiff’s involvement as follows:
“We will be there for around 3 or 4 hours in total. I do around 3 to 4 hours of the cleaning myself, and my mother does the rest of the hours. I handle all of the heavy jobs. When my father is there, he does the heavier work too. Because of her shoulder injury, my mother only does the lighter things light detailing and dusting, and some bathroom work. She basically does the same sort of thing that she did with Be Happy after her injury.
I observe her to avoid using her left arm when she is doing this work. She does anything repetitive or slightly heavy with her right hand. I see that she spends a great deal of time sitting and resting, or waiting for me to finish so that we can go home, since she doesn’t drive. That is how she is only doing around 1 or 2 hours of actual cleaning work in the entire time that we are there.”[57]
[57]Exhibit G, p 16I [17]- [18]
36 The remittance advices and payslips tendered in evidence are of assistance in making factual findings in this application. It is unnecessary to describe them further at this stage. I will make reference to them during my analysis, which is set out below.
The medical evidence
37 The plaintiff relied on a number of medical reports from her treating general practitioner, Dr Ansari. He prepared five reports between 17 February 2014 and 25 May 2018 which were tendered into evidence.[58] Additionally his clinical notes between 11 December 2003 and 5 June 2018 were separately tendered into evidence during the course of hearing.[59]
[58]Exhibit G, pp 63-80 & 82A to 82N
[59]Exhibit E
38 Dr Ansari first saw Ms Ponjiger four days after she sustained her injury on 30 November 2012. The clinical notes record that Dr Ansari noted bruising over the left arm and pain in the left shoulder.[60]
[60]Exhibit E, p 22
39 In his most recent medical report to the plaintiff’s solicitors dated 25 May 2018 he sets out much of the history as recorded in his clinical notes, and goes on to diagnose Ms Ponjiger’s injuries as follows:
“1. Soft-tissue injury to the left forearm.
2. Left supraspinatus full thickness tear and left subdeltoid-subacromial bursitis.
3. Left lateral epicondylitis with partial thickness tear.
4. Musculo-ligamentous strain of the cervical spine with disc bulge at C6/7.
5. Left carpal tunnel syndrome confirmed on EMG studies.”[61]
[61]Exhibit G, p 82B
40 Dr Ansari further noted a report of neck pain in April 2013 and stated:
“She reported that she first noticed neck pain and thoracic pain about 2 weeks after the accident when she tried to perform some dusting overhead and needed to look up and tilt her neck backwards slightly. For the first two weeks following the accident, she was doing only supervising duties. This action produced pain and she was taken off the overhead dusting duties.”[62]
[62]Exhibit G, p 82B
41 Dr Ansari recorded that Ms Ponjiger was working three and a half hours per day, five days per week doing cleaning and supervisory duties with 15 minute rest breaks every half an hour. This would seem consistent with the material contained in the affidavit sworn by Ms Ponjiger’s daughter. Dr Ansari concluded that Ms Ponjiger had sustained injuries to her left arm, left forearm, left shoulder, left elbow and neck. He regarded the extent of her disability as substantial stating:
“She has residual disability in her left shoulder, left elbow, left arm and neck which are very painful and tender to touch. She was unable to grip. The extent of her disability is substantial; however, I do not do percentages.”[63]
[63]Exhibit G, p 82D
42 He regarded her prognosis as poor.
43 Ms Ponjiger had been referred by Dr Ansari to Dr Alex Stockman, rheumatologist, Dr David Freilich, neurologist, and Dr Davinda Kochar, psychiatrist. There are no formal reports from any of these consultants, although various letters from Dr Stockman to Dr Ansari,[64] a single letter from Dr Kochar to Dr Ansari,[65] and a nerve conduction study report provided by Dr Freilich,[66] were tendered into evidence.
[64]Exhibit G, pp 82O-82V
[65]Exhibit G, pp 81-82
[66]Exhibit G, p 60
44 I note from this material that Dr Kochar opined that Ms Ponjiger was suffering from chronic complex regional pain syndrome in November 2014.[67] Dr Freilich concluded that the nerve conduction study produced findings of a left carpal tunnel syndrome.[68]
[67]Exhibit G, p 81
[68]Exhibit G, p 60
45 Dr Stockman’s reports refer to a number of injuries unrelated to the left shoulder injury which is the basis of the present claim.
46 On 8 March 2013 he wrote to Dr Ansari in the following terms:
“Thank you for your referral. Mrs Ponjiger is now concentrating on the left ankle and foot and the left knee. These have also been worrying her considerably since a fall in January 2007.”
47 At that time he recommended an MRI scan of the ankle, foot and left knee.[69]
[69]Exhibit G, p 82O
48 On 2 July 2013 Dr Stockman diagnosed synovitis in the mid tarsal region of the left foot and tenosynovitis of her peroneus tendons, together with meniscal degeneration in the left knee. He noted at that stage Ms Ponjiger was also complaining of burning pain in both thighs which he believed was neuropathic. On that occasion he made mention of “another injury in the upper limb” suggesting that Ms Ponjiger may discuss it with Dr Ansari.[70]
[70]Exhibit G, p 82P
49 On 13 August 2013 Dr Stockman again wrote to Dr Ansari noting that Ms Ponjiger continued to have pain in the left foot which was worrying her. The burning pain in the thighs was noted to have improved with the medication Endep. He then noted pain in the neck and left arm resulting from the incident in November 2012. Dr Stockman set out his examination findings noting some slight limitation of movement in both the neck and the shoulder, the latter being suggestive of rotator cuff tendonopathy. He also made mention of some diffuse tenderness in the left forearm, but “not clear evidence of lateral epicondylitis or carpal tunnel syndrome.[71]
[71]Exhibit G, p 82Q
50 His opinion at that time was that:
“… some of her symptoms are due to complex regional pain syndrome type 2 and she should continue with her current medications of Endep, Mersyndol and Celebrex.”
51 Dr Stockman had also requested ultrasound guided steroid injection into the left shoulder and an MRI scan of the cervical spine.
52 He wrote again to Dr Ansari on 24 September 2013 noting that the MRI scan showed “tiny disc bulge at C6/7 to the right of the mid-line, but was otherwise normal.”[72] He concluded that the pain in the left side of the neck, where he had found tenderness, was likely to be of soft tissue origin and he believed the prognosis was good. She was then to proceed with the steroid injection into the left shoulder. At that time Dr Stockman noted Ms Ponjiger was working four and a half hours per day, and agreed that she was not at that stage ready to increase her hours.
[72]Exhibit G, p 82R
53 Dr Stockman appears not to have seen Ms Ponjiger again until 11 November 2014. At that stage she presented with what he described as a similar problem:
“… namely left sided neck pain with radiation to the scapula region and there is also some numbness in the left arm especially index and middle finger.”[73]
[73]Exhibit G, p 82S
54 Dr Stockman noted a referral for nerve conduction study relating to the numbness in her left arm and also commented on the pathology in the cervical spine noting:
“Mirjana appears to have some pathology in the cervical region which hasn’t been clearly explained by the MRI scan findings. Perhaps the pain is coming from the facet joints. Given neuropathic type of pain I have now commenced her on Lyrica 75mg at night … I also suggested gentle physiotherapy. If nothing helps we may have to consider facet joint injections in the cervical region to see if this can relieve the pain.”[74]
[74]Exhibit G, p 82S
55 Dr Stockman again wrote to Dr Ansari on 16 October 2015. On this occasion the presenting problems were noted as follows:
“Back and neck pain
Hypertension
Hyperlipidaemia.”[75]
[75]Exhibit G, p 82T
56 On that occasion Dr Stockman noted a fall at work on 9 September:
“She was working in the evening and may have had a blackout or at least she experienced transient loss of vision leading to a fall down 10 stairs. She woke up bleeding from her scalp. If she did lose consciousness it was no more than several minutes. There is no prior history of similar problem. Following this she developed generalized pain and these have continued to worry her. She reports no improvement and she has remained at home.
In particular, she has right-sided neck pain, headaches, pain in both scapulae, rib margins and the right low lumbar area.”[76]
[76]Exhibit G p 82T
57 The main focus of Dr Stockman’s letter was to ensure that further tests were performed to investigate a lesion in the upper thoracic spine. He referred her for an MRI scan to exclude the possibility of a metastatic lesion.
58 Dr Stockman again wrote to Dr Ansari on 3 November 2015 noting the previous problems and also querying a diagnosis of epilepsy. He noted in particular that she still had pain on the right side of her body and the right side of her neck and was only working a few hours a week. She had several episodes of loss of consciousness and experienced other symptoms which he believed were more likely epileptic in nature than of a cardiac origin. Specifically he referred to the recent cervical MRI scan which he stated did not show any significant disc pathology. He believed at that stage that most of the pains experienced by Ms Ponjiger were of soft tissue origin.[77]
[77]Exhibit G p 82U
59 The final piece of correspondence between Dr Stockman and Dr Ansari was dated 3 December 2015. He noted:
“Her main concern is headache with sensitivity to touch of her scalp and she claims has had 2 further episodes of loss of consciousness. This was preceded by palpitations. She stated that she fell during one blackout and injured her left arm.”[78]
[78]Exhibit G p 82V
60 Dr Stockman also noted that a recent ultrasound of the right shoulder showed a full thickness tear of the supraspinatus tendon, but “no subacromial bursitis.”[79]
[79]Exhibit G p 82V
61 He referred her to Dr Jacques Joubert, a neurologist, for a further opinion regarding the headaches and blackouts, which he noted had occurred since the fall in September.
62 Although there is no formal report from Dr Joubert, Mr O’Dwyer SC tendered into evidence a short letter dated 1 March 2016 where Dr Joubert advised Dr Ansari of his opinion.[80] Dr Joubert stated:
“This lady has now had two episodes of generalised convulsive seizures, one with via husband Les, and the other via workmate recently. I do not think that forward(sic) down the steps was causing the seizure. She probably became vertiginous because she turns suddenly and then fall and bumped her head. There was no facture. I have commenced, despite the normal EEG, Keppra 500 mg bd. I would like to see her again in a month’s time.”[81]
[80]Exhibit F
[81]Exhibit F
63 There was no further material from Dr Joubert.
64 The remainder of the medical evidence relied upon by the plaintiff consisted of early medico-legal opinions dating from September 2014 and the opinion of a Medical Panel which had provided an opinion on 2 July 2015. The more recent opinions were provided by Dr Robyn Horsley, an occupational physician, and Mr Arshad Barmare, orthopaedic surgeon.
65 The plaintiff tendered two reports from Dr David Elder, who had conducted an impairment assessment on Ms Ponjiger on 16 September 2014. He noted at that stage the injuries were to the left forearm and left shoulder. He was not convinced that there had been any neck injury arising from the November 2012 incident. He later confirmed that opinion in a short supplementary report dated 20 February 2015.[82]
[82]Exhibit G, p 24
66 Mr Kossmann examined Ms Ponjiger at the request of her solicitors on 25 September 2014. Following that examination he diagnosed pain and movement restriction of the left shoulder on the basis of a full thickness tear of the supraspinatus tendon, together with subacromial bursitis and a painful AC joint. He also diagnosed epichondylitis in the elbow and queried a “sulcus ulnaris syndrome on the left side.” He noted her complaint of pain in the cervical spine for which she was undergoing further investigation at that time.[83]
[83]Exhibit G, p 28
67 Mr Kossmann provided a supplementary opinion on 18 December 2014, after being provided with some further material. At that time he expressed a view that Ms Ponjiger was not suffering from a complex regional pain syndrome. He was unable to comment on her psychological condition as it was outside his field of expertise, and he believed that she was also suffering from an aggravation of degenerative changes in her lower cervical spine in addition to the previously diagnosed left shoulder and arm condition.[84]
[84]Exhibit G, p 34
68 A Medical Panel Certificate of Opinion dated 2 July 2015 was also placed into evidence before me.[85] I was also provided with the Panel’s reasons.[86]
[85]Exhibit G, pp 37-38
[86]Exhibit G, pp 39-45
69 The Medical Panel had concluded that Ms Ponjiger was at that time suffering from:
“… unresolved soft tissues injuries to her left shoulder girdle and left forearm.
The Panel is also of the opinion that the worker is not suffering from any condition of the neck or from a complex regional pain syndrome.
The Panel is also of the opinion that the worker suffers from left carpal tunnel syndrome but this is not attributable to any claimed injury.”[87]
[87]Exhibit G, p 37
70 Ms Ponjiger was seen for medico-legal examination by Dr Robyn Horsley, occupational physician, on 9 January 2018. Dr Horsley’s report of the same date was tendered in evidence.[88]
[88]Exhibit G, pp 46-55
71 Dr Horsley noted Ms Ponjiger’s complaints as follows:
“She experiences chronic left shoulder discomfort that aggravates with movement. It varies on the visual analogue scale from 5 out of 10, up to 7 out of 10. It radiates from the left shoulder girdle into the left side of the neck, and into the left trapezius and into the left scapular area.”[89]
[89]Exhibit G, p 51
72 Dr Horsley noted further complaints involving the left hand in addition to the shoulder. She also recorded complaints related to a back condition.
73 Dr Horsley described the injury as “a significant injury to the left upper arm.” She adopted the assessment of the Medical Panel made in 2015 to the effect that:
“… the worker is suffering from an unresolved soft tissue injury to the left shoulder girdle and left forearm.”[90]
[90]Exhibit G, p 53
74 Dr Horsley referred to an MRI confirming a “full thickness tear of the left shoulder girdle”, but commented that this may have been pre-existing or may have occurred at the time of the November 2012 incident.[91]
[91]Exhibit G, p 53
75 In addition to the left shoulder, Dr Horsley commented on the left elbow condition and increased symptoms in the right shoulder which she believed related to a full thickness tear of the right supraspinatus tendon. She also noted neck pain in the context of the September 2015 fall. Dr Horsley also suggested mild to moderate depression, while noting that Ms Ponjiger was not keen to undertake any treatment in relation to that condition.[92]
[92]Exhibit G, p 54
76 Finally, Dr Horsley commented that she believed the condition relating to the left shoulder girdle and left elbow was likely to continue and that Ms Ponjiger had “come to the end of her working life.”[93]
[93]Exhibit G, pp 54-55
77 The final medico-legal opinion on behalf of Ms Ponjiger was provided by Mr Arshad Barmare, whose report dated 8 May 2018 was also tendered in evidence.[94]
[94]Exhibit G, pp 55A-55F
78 Mr Barmare noted that his examination and history was restricted to the left shoulder being the subject of the work-related injury. Mr Barmare noted Ms Ponjiger’s predominant problem as being:
“… left shoulder pain and restriction of movement. This has been more or less similar for the last two years. … Her pain, on average, is seven out of ten, but when she works it can sometimes go up to about nine out of ten.”[95]
[95]Exhibit G, p 55B
79 His opinion was that Ms Ponjiger had sustained “a work related injury which has given rise to a left shoulder chronic rotator cuff tear with intra-articular biceps tendon impingement with secondary changes leading to trapezius fasciitis in the left shoulder girdle.”[96]
[96]Exhibit G, p 55D
80 At the time of Mr Barmare’s examination he noted that she had returned to work. He was of the view that she was at that stage working to her near maximum capacity. He described her working capacity as follows:
“Being in the cleaning business which requires both upper limbs to be used for pulling, pushing, cleaning, reaching for things under and over benches and overhead, I am of the opinion, that the left shoulder chronic rotator cuff injury with the biceps impingement and the trapezius fasciitis has tremendously reduced Ms Ponjiger’s capacity for long hours of fruitful employment.”[97]
[97]Exhibit G, p 55E
81 He expressed a similar opinion in relation to her activities of daily living, noticing difficulties with showering, dressing and other household activities.
82 The defendant’s medical material was largely historical, with five reports from Mr Graeme Brazenor, neurosurgeon, dating from 4 August 2008 to 23 October 2010.[98]
[98]Exhibit 4, pp 1-6
83 Each of Mr Brazenor’s reports is addressed to the plaintiff’s then treating general practitioner, Dr Sleaby. In broad terms they concern complaints of back pain which Mr Brazenor found to be largely psychologically based.[99]
[99]Exhibit 4, p 5
84 Additionally the defendant tendered two reports from Dr Philip Mutton, occupational physician, dated 26 July 2013 and 29 August 2013.[100] Dr Mutton examined Ms Ponjiger on 24 July 2013 in relation to her left shoulder injury, and agreed that she had a rotator cuff tear in the left shoulder. He stated at that time:
“This may be as a consequence of the workplace injury or may have been pre‑existing. However, she certainly has symptoms in terms of pain, discomfort and loss of function at this time.”[101]
[100]Exhibit 4, pp 7-17
[101]Exhibit 4, p 11
85 He found that she would have difficulty in undertaking her full duties as a cleaner.
86 In Dr Mutton’s further report dated 29 August 2013 he expressed a further opinion as to her then work capacity, noting that a graduated return to work program was “not contraindicated”. He further stated:
“I felt she needed restrictions to protect the left shoulder in particular. I did opine that she had capacity for employment on reduced hours. She had capacity for supervisory duties and limited capacity for cleaning.”[102]
[102]Exhibit 4, p 17
87 Mr Myers, who appeared on behalf of the defendant, tendered into evidence a psychiatric report from Dr Stephen Stern dated 23 February 2015. Dr Stern expressed the view that Ms Ponjiger had suffered a “chronic adjustment disorder with mixed anxiety and depressed mood.” He noted that she was then seeing a psychiatrist monthly and taking antidepressant medication.[103]
[103]Exhibit 4, p 23
88 Of greater significance were the two reports from Dr Brett Oppermann, occupational physician, and further reports from Dr Imraan Ansari and Dr Abdus Ansari which related to Ms Ponjiger’s fall at work on 9 September 2015.[104]
[104]Exhibit 4, pp 83-102
89 Dr Imraan Ansari contacted the WorkCover insurer on 27 November 2015 requesting liability be accepted for a neurological opinion after outlining Ms Ponjiger’s complaints of “ongoing neck and back pain, right shoulder pain and right anterior leg pain.” He further noted:
“… she has been suffering from blackouts and states that she has been losing her balance. It is advisable that she seeks the opinion of a neurologist for her blackouts and loss of balance.”[105]
[105]Exhibit 4, p 83
90 Dr Abdus Ansari also contacted the insurer on 13 December 2016 noting that she had last been certified as fit for suitable employment up until 1 August 2016. Dr Ansari noted some improvement in her condition following health spa treatment. He further pointed out:
“She has not consulted me for her work-related issues since Aug 2016 as she was doing reasonably well, and states that she is still supervising at work for 1 1/2 hours a day, 5 days a week. However, in the last week she complains of worsening pain on the right side of the ribs (back), neck (right side) and a squeezing sensation on her head as well as dizziness. She also complains of soreness when she coughs.
She might benefit from a course of physiotherapy for her condition.”[106]
[106]Exhibit 4, p 102
91 Dr Brett Oppermann, occupational physician, examined Ms Ponjiger in relation to her 2015 injuries on 4 December 2015. He reported to the WorkCover insurer on the same date.[107] He later provided a supplementary opinion dated 12 January 2016.[108]
[107]Exhibit 4, pp 84-99
[108]Exhibit 4, pp 100-101
92 In the history recorded by Dr Oppermann he noted that as a result of the 2012 incident:
“She reported having needed to reduce her work hours following a prior work related injury to her left shoulder, elbow and neck.”[109]
[109]Exhibit 4, p 85
93 He further recorded:
“Ms Ponjiger gave a history of a work-related left shoulder, elbow and neck injury sustained three years ago when a magnetic lock mechanism apparently fell from the top of a tall door in a chapel building, striking her on the left forearm. Believed by her to be related to the above, Ms Ponjiger reported ongoing neck discomfort together with what I understood from the description given to be visual disturbance with scintillation of her bilateral visual field with turning of her head. Her left shoulder, elbow and neck complaints Ms Ponjiger stated were aggravated at the time of the subject workplace fall downstairs on 09.09.2015.
Ms Ponjiger gave a further history of longstanding low back pain experienced by her for at least the last 10 years which she stated she had never previously claimed as work-related. … She reported her longstanding back complaint as likewise having been aggravated in the subject workplace fall in September 2015.”[110]
[110]Exhibit 4, p 86
94 Much of Dr Oppermann’s report is directed towards the causative factors of the September 2015 fall, which he believed on balance were as a result of a seizure or other syncopal event. Regardless of the cause of the fall, he believed that the resulting injuries were an exacerbation of a pre-existing neck, left shoulder and low back complaint, although the degree to which they were aggravated was somewhat unclear.
95 In his supplementary report provided in January 2016, Dr Oppermann expressed the view that:
“… on the balance of probabilities that any aggravation of pre-existing injury that may have occurred solely attributable to the subject workplace fall had since resolved.”[111]
[111]Exhibit 4, p 101
Analysis
96 In order to be granted leave Ms Ponjiger must firstly satisfy the court as to the nature and extent of injury that was sustained in the workplace incident in November 2012. I am satisfied in this case that as a result of the incident where she was struck by part of the door closure mechanism she has suffered an injury to her left shoulder and elbow area.
97 I largely accept the opinion of Ms Ponjiger’s treating general practitioner, Dr Abdus Ansari, in relation to the nature of her injury, although I do note in his most recent report he did not receive any complaint of neck pain from the plaintiff until April 2013.[112]
[112]Exhibit G, p 82B
98 Dr Ansari diagnosed soft tissue injury to the left forearm, shoulder and elbow, in addition to a strain of cervical spine with a disc bulge noted at C6/7 and carpal tunnel syndrome.
99 The opinion of the Medical Panel on 2 July 2015 was to the effect that Ms Ponjiger’s employment was a significant contributing factor to the soft tissue injuries to her left shoulder girdle and forearm, but the carpal tunnel syndrome was unrelated to employment. There was no specific mention of the neck in the Medical Panel’s opinion, although the reasons noted:
“The Panel acknowledged that the worker had symptoms of lower neck pain but this pain radiated to the back of her left shoulder and was consistent with injury to the shoulder girdle rather than the neck.”[113]
[113]Exhibit G, p43
100 The material provided from the treating rheumatologist, Dr Stockman, supports a diagnosis of rotator cuff tendonopathy in the left shoulder, but otherwise is of little assistance to the plaintiff in the present application. Quite frankly the material in evidence from Dr Stockman refers to a number of complaints noted in the early part of 2013 which are quite unrelated to Ms Ponjiger’s current complaints focusing on the left shoulder and arm.
101 I have previously referred to correspondence passing between Dr Stockman and Dr Ansari following the later fall in September 2015, where the focus of Ms Ponjiger’s complaints related to the right side of her body and neck. There were also complaints of loss of consciousness which necessitated the referral to Dr Joubert.
102 I am satisfied that Ms Ponjiger has sustained a soft tissue injury to her left shoulder and arm from which she continues to suffer some level of symptomatology. Nevertheless, I am concerned with the reliability of the histories provided by Ms Ponjiger to medico-legal examiners, particularly in relation to injuries received in 2015, and most recently in the incident occurring in June 2017 which was the subject of considerable cross-examination.
103 The recent medico-legal opinions from both Dr Horsley and Mr Barmare are compromised to some extent by the absence of an accurate history being provided. In Mr Barmare’s case he has specifically restricted his examination and history to the left shoulder as requested by Ms Ponjiger’s solicitors. In Dr Horsley’s case she did obtain a detailed history including a notation of a decrease in hours following the fall in 2015. She did not however obtain any history from Ms Ponjiger in relation to the June 2017 incident when she examined her on 9 January 2018.
104 It may be that the June 2017 incident was relatively minor, although it apparently resulted in a claim for compensation dated 1 September 2017, indicating that Ms Ponjiger had ceased work as a result of those injuries and had no capacity for any employment from 18 October 2017 to 1 November 2017.[114] The injuries were said to be “soft tissue injuries of the right lateral rib cage, right trapezius muscle, right paraspinal muscles and left knee.”[115]
[114]Exhibit 4, pp 109-111
[115]Exhibit 4, p 111
105 There is simply an absence of medical opinion to explain the extent to which this incident occurring in June 2017, or the incident in September 2015, impacted upon the plaintiff’s capacity for employment, or the level of pain and suffering experienced by her. The medical situation is not assisted by even a close examination of the extensive clinical notes dating from December 2003 to June 2018.[116]
[116]Exhibit E
106 An analysis of the clinical notes shows recorded complaints relating generally to the left shoulder, left elbow and neck from 4 December 2012 until 11 September 2015, thereafter the complaints relating to the left shoulder and arm become less frequent and recordings of complaints in the back, right leg and the right shoulder become more common.
107 During the early part of 2017 the recording of complaints affecting the left shoulder and arm once again appear with some regularity. Somewhat surprisingly there is no record in the doctor’s notes to the incident occurring in June 2017 until 18 October 2017 where the complaints recorded relate to the right shoulder, the rig cage and the left knee. It is not then until mid-2018 that the doctor again records complaints relating to the left shoulder and arm:
“Her left shoulder, left arm, left elbow and neck condition has stabilised to some degree but will not improve. As soon as she tries to do more work, she develops pain.”[117]
[117]Exhibit E, p 26 (Progress Notes from 27 January 2015)
108 The remittance advices which cover the periods both prior to and post the November 2012 incident[118] are relied upon in support of an argument that Ms Ponjiger’s earning capacity has been permanently impaired as a result of her left shoulder and arm injury. However, when these are viewed together with the payslips in Exhibit D spanning the period from July 2014 to September 2017, there are obvious anomalies between the recorded hours worked and/or payments received and the clear medical evidence showing periods where the plaintiff was either not working or said to be working restricted hours. The probative value of this material is further weakened when it is noted that the plaintiff’s husband, with whom she performed the cleaning duties, has been experiencing poor health in recent years. It is simply not clear how much of the work was done by Ms Ponjiger and how much by her husband.
[118]Exhibits B & C
109 Similarly the material deposed to by the plaintiff’s daughter, Anuska Ponjiger, also casts some doubt on the accuracy of the remittance advices given her statements that her mother would only generally be supervising other workers who were doing all the heavy cleaning. If the plaintiff was indeed working with a team of other cleaners, then it highlights the difficulty of relying upon figures in remittance advices in order to establish the extent of her loss of earning capacity consequent upon her left arm and shoulder injuries.
110 Authorities binding upon me such as Peak Engineering & Anor v McKenzie[119] emphasise the need for a court to be satisfied that the consequences said to warrant a description of “serious injury” are truly referrable to the compensable injury. In the present case the plaintiff carries the onus of satisfying the court that as a consequence of her work related injury to the left shoulder and arm suffered in November 2012, her earning capacity is permanently impaired to the extent required by statute.
[119][2014] VSCA 67
111 As stated above I cannot accept the plaintiff as a reliable witness. Many of the answers she gave in cross-examination concerning both prior and subsequent medical conditions were in my view evasive and designed to advance her cause in the present application.
112 There is simply nothing in the medical evidence that would allow me to independently conclude that the plaintiff’s capacity is reduced by reason of the left shoulder and arm injury, as distinct from the many other conditions from which she has suffered over the years. I am not satisfied that she is entitled to leave in respect of pecuniary loss damages.
113 Similarly, in relation to an assessment of pain and suffering, I cannot be satisfied that she has established an entitlement using the broad template set out by the Court of Appeal in Haden Engineering v McKinnon[120] in relation to the left shoulder and arm injuries. I cannot accept the plaintiff’s own account as reliable so as to enable me to conclude that her use of medication or restriction in activities of daily living can be properly described as consequential upon the left shoulder and arm injury suffered in November 2012.
[120][2010] VSCA 69 at [10]-[12]
114 Ms Ponjiger is now 68 years of age and suffers from a multiplicity of medical conditions which would in any event impact on her day to day activities.
115 The correspondence between Ms Ponjiger’s treating rheumatologist, Dr Stockman, and her treating general practitioner, Dr Ansari, between March 2013 and December 2015,[121] and the correspondence from Dr Joubert to Dr Ansari in March 2016 are particularly relevant on this issue.
[121]Exhibit G, pp 82O-82V
116 Ms Ponjiger has not satisfied me that the left shoulder and arm condition has produced as a permanent consequence the need for prescription medication or a relative frequency of pain as would justify the grant of leave in accordance with the established authorities.
Conclusion
117 I cannot be satisfied that Ms Ponjiger has established her entitlement for leave to be granted. Her applications in respect of both pecuniary loss and pain and suffering must be dismissed.
118 I will hear the parties in relation to the formal orders sought and on the question of costs.
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