Price v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-02432

ANDREA PRICE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2021
DATE OF JUDGMENT:	22 April 2022
CASE MAY BE CITED AS:	Price v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 518

REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985/Workplace Injury Rehabilitation and Compensation Act 2013 – serious injury application – reliance upon paragraphs (a) and (c) of the definition of serious injury – application in respect of pain and suffering and loss of earning capacity – personal care attendant – injury to both arms – whether burden of proof discharged – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I McDonald SC with Ms S Lean	Zaparas Lawyers
For the Defendant	Mr J Batten	Lander & Rogers

HIS HONOUR:

(a) General background
1At the outset, I would make the following observation. Some confusion may have arisen as to whether this application has been brought pursuant to the provisions of the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013. This seems to have arisen because, in accepting the plaintiff’s original application, the agent of the defendant referred to the date of injury as being 1 July 2014 (the date upon which the “Workplace” Act commenced operation). It is also the date of the plaintiff’s claim form. The acceptance may have been expressed this way for reasons of convenience or because some assumption was made that the date of the claim form was presumed to be the date of injury. Whatever the reason, it seems to me that the plaintiff last performed the employment duties which are alleged to have given rise to the injury prior to 1 July 2014. Indeed, in his closing address, Mr McDonald, on behalf of the plaintiff, referred to the fact that, in all probability, the applicable legislation was the Accident Compensation Act – see Transcript (hereinafter referred to as “T”) 110. I would agree with that.

2   I would add that, as the relevant provisions in each Act are effectively identical, nothing relating to the presentation of the case is affected by the question of which Act applies and no point was taken in that regard. However, the Originating Motion has referred to the application as being brought pursuant to the Accident Compensation Act, and that seems to me to be correct.
3 In any event, in bringing her application, the plaintiff relies upon paragraphs (a) and (c) of the definition of “serious injury”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering and loss of earning capacity. At the relevant time, which commenced in April 2007, the plaintiff was employed as a personal care attendant with an entity called Arcare Pty Ltd, which shall hereinafter be referred to as “Arcare”. Her duties involved daily patient care, including involvement in lifting and carrying patients and the like. Essentially she was a part-time worker, with the number of shifts worked per week varying. Any work which she did on a full‑time basis, if it ever occurred, was minimal.
4     In relation to the injuries, the plaintiff relies upon the general course of employment, although there was an incident in late 2013 when she experienced a cracking sensation in her left shoulder. Prior to the formal termination of her employment, which occurred on 22 October 2014, the plaintiff had lodged a WorkCover claim, which was accepted, although her payments were subsequently terminated and have not been reinstated. On 1 July 2014, the plaintiff lodged a claim form alleging injuries to her left shoulder, neck and arm, these being the primary physical injuries relied upon in her present application. The defendant has paid for some relevant medical treatment, including surgery. Following this surgery, the plaintiff developed symptoms in her right elbow, this being asserted to be due to overuse following the left shoulder surgery. The plaintiff is also relying upon injury to the right arm, as a result of overuse of it. The plaintiff is right hand dominant. The plaintiff has not worked since the termination of her employment with Arcare.
5 The plaintiff’s psychiatric problems seem to have commenced approximately at the time that surgery on her right elbow took place, this being performed on 9 July 2020. The surgery did interrupt a pain management program which the plaintiff was undertaking. In his opening, Mr McDonald described the plaintiff’s psychiatric issues as not being predominant – see T9. Nevertheless, the plaintiff continues to rely upon paragraph (c) of the definition, in addition to the reliance upon paragraph (a).
6 Mr I McDonald SC appeared with Ms S Lean of counsel on behalf of the plaintiff. Mr J Batten of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)    The plaintiff’s background, training and education
7 The plaintiff is aged 57 years, she having been born in 1964. She was educated to Year 11 level. She undertook a course of studies which enabled her to become a paralegal and worked for various legal firms for a few years. She was then employed in sales, before working for The Herald & Weekly Times. This was between approximately 2003 and 2006. During that employment, she had some problems with stress and anxiety, resulting in a WorkCover claim. The report of Mr Ivor Jones, psychiatrist, who examined the plaintiff at the request of The Herald & Weekly Times, was placed in evidence by the defendant. He recorded some anxiety symptoms and suggested a possible change of employment.
8 The plaintiff ceased working for The Herald & Weekly Times and undertook a Certificate III in Aged Care. She then commenced working with Arcare in approximately April 2007, obtaining employment as a permanent part‑time worker.
9 The plaintiff was married, but there was a breakup in approximately 2010/11, resulting in her suffering from some anxiety and depression that required treatment. She has an adult son. As set out earlier, the duties which she performed with Arcare were largely what one would expect of a part‑time nurse engaged in this type of industry. I accept that there was a considerable amount of manual work involved.
(c)     The state of the plaintiff’s health prior to the injury
10 In approximately 1984 the plaintiff was involved in a transport accident in which she suffered a back injury. She has suffered some back pain since then and has treated this with physiotherapy and Panadeine Forte. In her original affidavit, she described the back pain as being “at times … continuous and quite bothersome, whereas at other times the back pain has been intermittent and manageable”. It does not seem to have created any great problem insofar as her capacity to carry out her duties with Arcare was concerned.
11 The plaintiff also has a history of right knee problems, resulting in an arthroscopy and a meniscectomy, this being in about the year 2000. A further arthroscopy was performed in approximately the mid-2000s. She also had a flare-up of her right knee pain on a date which is not entirely clear, but seems to have been after the cessation of her employment with Arcare. She has described her back and knee pain as intermittent, and it does not seem to have interfered to any great extent with her work capacity. One doctor (Dr Woodgate) has referred to the plaintiff as having had bilateral knee meniscus repairs and to her having suffered from chronic obstructive pulmonary disease. Whether or not that is an accurate history, I am satisfied that neither condition was having any impact of substance upon the plaintiff’s health or capacity at the relevant time.
12 As stated, the plaintiff had suffered from some anxiety and the like, but it could not be said that she had any major mental health problems prior to her employment with Arcare. The plaintiff did lodge a WorkCover claim as a result of stress arising from her work at The Herald & Weekly Times. This caused her to take some time off work, to receive counselling and to take antidepressant medication for a period. However, after she resigned from The Herald & Weekly Times, she completed her Certificate III in Aged Care and commenced her employment with Arcare. She also experienced some depression and anxiety in approximately 2010 in relation to the breakdown of her marriage and subsequently following some deaths in the family, including that of her brother, these events occurring in approximately 2011 and 2012. By this time she was in employment with Arcare, having commenced that in April 2007.
(d)    The plaintiff as a witness
13   In his opening observations, Mr Batten, on behalf of the defendant, stated that credit and believability were in dispute. Mr Batten also raised this issue in his closing address, although whether he was focussing entirely on the plaintiff’s credit or on the existence of other physical injuries, and particularly other causes of any psychological or psychiatric condition, is another matter.
14 In his closing address, Mr McDonald described the plaintiff as a credible witness. He pointed to various admissions that she had made in relation to other injuries and stresses in her life, and the like.
15 I am not of the view that the plaintiff’s credit has been damaged. Certainly there have been a variety of problems in her life and various causes of stress. However, that is a different issue from credit. In any event, she seems to me to have been quite open in this regard, both in the witness box and when questioned by medical examiners. In short, I am of the view no damage has been done to her credit.
16 I note that Dr Malcolm C-Ong, who has various qualifications including acute injury management specialist, and who reported to the plaintiff’s then solicitors on 29 September 2015, described the plaintiff as being pleasant and cooperative. Dr Kilner Brasier, occupational physician, who saw the plaintiff at the request of her solicitors and reported to them on 20 September 2019, referred to her as being a cooperative patient and a good historian. I also note that Mr Clive Jones, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, referred to her as being “a genuine individual”.
17 These are assessments with which I agree.
(e)     The injuries, their treatment and prognoses
18 Whilst there is some potential for overlapping, I shall deal with the injuries separately.
(i)     The injury to the neck and the left shoulder.
19 Given the sheer number of medical reports, I shall do my best to summarise them succinctly. There are some 78 reports in the Plaintiff’s Court Book.
20 The plaintiff’s original treating general practitioner was Dr Terry Brophy of Kealba. The history taken by him was that the plaintiff originally sprained her neck and left shoulder when forcefully pulling a patient up in bed in 2013 and had continued thereafter to have severe pain radiating from her neck to the left shoulder. She had severe neck spasm. She was not fit for work. The diagnosis of Dr Brophy was of a regional pain syndrome secondary to neck and shoulder sprain.
21 The plaintiff’s next treating general practitioner seems to have been Dr Leena Zulkipli, whose rooms were at Craigieburn. The report of Dr Zulkipli is dated 7 September 2015. There are references to anxiety and depression, dating back to the plaintiff’s marriage breakdown, and worsening with the death of two family members, in addition to the loss of the job in 2014. The report also refers to the plaintiff having suffered a left shoulder and neck injury at work in 2013, with ongoing chronic pain and disability.
22   It is evident that, by 19 January 2015, Dr Mahomed Moosa had taken over the management of the plaintiff at the Kealba practice, Dr Brophy no longer being there. Dr Moosa first saw the plaintiff on that date. She was complaining of chronic pain in her neck and left shoulder. It is evident that Dr Brophy had organised an x‑ray and ultrasound investigation. Dr Moosa continued to provide the plaintiff with analgesics and antidepressants and referred her to Dr Ong at a pain management clinic. Dr Moosa was of the view that the plaintiff’s physical condition had stabilised and little change was to be expected in the foreseeable future.
23   Also in the Plaintiff’s Court Book is a report from Dr Luz Conejera, who appears to have been a general practitioner who saw the plaintiff at the request of the defendant and reported on 7 July 2017. Dr Conejera may well have been the “works doctor”. In any event, the plaintiff was referred to as having an active compensation case for injury whilst at work, the injury being to the left shoulder. There was a reference to a frozen shoulder.
24 There is then in evidence a series of reports from Dr Dragan Calic, who appears to have become the plaintiff’s treating general practitioner and who is based in Caroline Springs. A certificate of 12 February 2018 refers to the fact that the plaintiff had undergone surgery to the left shoulder and now had pain in her right elbow and arm, probably as a result of overuse following the left shoulder treatment. There is also reference to her having mental health issues and sleeping problems. There is a further certificate in relation to her sleeping problems because of chronic left shoulder pain.
25 On 24 January 2019, Dr Calic provided a more detailed report to the plaintiff’s solicitors. This includes a history of chronic left shoulder pain since the work injury, complicated by adhesive capsulitis after surgery in 2017. There is reference to two surgeries having been performed by Mr Duy Thai and his opinion in relation to the presence of adhesive capsulitis. His reports shall be discussed subsequently. There is also reference to right elbow pain due to overuse, compensating for the left arm disability. Lateral epicondylitis was revealed on ultrasound. Dr Calic referred to the plaintiff’s chronic pain and disability over the preceding four years and the development of excessive anxiety resulting in referral to a psychologist. The report also contains reference to the strong painkillers and other medications consumed in relation to the left shoulder pain and disability, along with Temazepam for sleeping. Details of the surgery performed by Mr Thai are set out in his report, but I shall deal with the surgical treatment when summarising the material forwarded by him.
26 In Mr Thai’s report, there is also a reference by Dr Calic to the plaintiff seeing a psychologist, because chronic pain and an inability to use her left arm had affected her mental wellbeing. Dr Calic thought that the plaintiff would continue to have left shoulder pain and difficulties with that shoulder and arm in the future, and that she may need further treatment, including surgery. It was likely that her condition would deteriorate. She had no capacity for pre‑injury work and would have a very limited capacity for any work in the future. There would be a number of restrictions, including avoiding use of the left arm, but also in relation to pulling, pushing, lifting, repetitive movement and the like. Dr Calic also set out that the plaintiff had been experiencing chronic pain on a daily basis, aggravated by any exertion and causing insomnia. She had not been able to use her left arm for any meaningful work at home. There had been an impact upon her social and domestic life.
27 Dr Calic provided a subsequent detailed report to the plaintiff’s solicitors, this being dated 1 October 2019. It covers some of the same material as that dealt with in the earlier report. There is reference to the surgery in November 2017, hydrodilatation in September 2018 and September 2019, as well as arthroscopic capsular release in December 2018 and local cortisone injections for chronic pain of the left shoulder in 2019. There is reference to a cortisone injection in the right elbow.
28 Dr Calic expressed the view that the plaintiff was likely to continue to have issues with her left shoulder and right elbow pain for the foreseeable future, given the lack of improvement that had been achieved. He considered that further orthopaedic treatment would be required. There was a likelihood of deterioration of the left shoulder and right elbow pain in the future if the plaintiff performed any heavy manual work. She had no current capacity for her pre‑injury work.
29 Dr Calic considered that the plaintiff may have some capacity for light sedentary duties if her current conditions improved and stabilised and with a considerable number of restrictions in place. However, he thought that this seemed unlikely, given the treatment which she had received without there being any significant improvement in symptoms. He made further references to her sleep disturbance and the severe impact that there has been on her social and domestic lifestyles because of her chronic pain and her limited ability to use her left arm and, later, her right arm as well. He again referred to the impact upon her everyday life and the severe limitations which she had. By reason of her inability to use her left arm properly because of pain, she had lost muscle bulk and strength in that arm and shoulder girdle, despite physiotherapy.
30 Dr Calic further reported to the plaintiff’s solicitors on 6 April 2020. This again covered much of the ground previously set out. I shall not repeat it. Dr Calic expressed the opinion that the plaintiff was likely to continue experiencing left shoulder pain and difficulties in using her left arm in the future. She would need ongoing treatment. He considered her likely to experience deterioration of her left shoulder condition if she started using her left arm more in the future or if her current treatment was stopped. She had no current capacity for pre‑injury duties and a very limited capacity, if any, for any work in the future. He listed the various restrictions which she had. He mentioned that she was not even be able to wash her hair due to the limited range of movement and pain in the left shoulder. Dr Calic also set out her problems with sleep. Her difficulties in performing activities of daily living had also affected her mental wellbeing, causing severe anxiety. Her social and domestic life had been severely impacted upon because of her chronic pain and inability to use the left arm and shoulder.
31 Dr Calic last reported to the plaintiff’s solicitors on 14 October 2021. This report again covered some previous ground. He did point out that her mental health had been affected by her injuries and chronic pain and that she had been seen by a psychiatrist in 2020, being diagnosed with having an adjustment disorder with mixed anxious and depressed mood. He summarised the situation as being that, since the work injury, the plaintiff had been suffering from chronic pain that had affected her very badly. He again referred to her regime of medication and treatment, and to the surgeries performed by Mr Thai. He noted that the plaintiff had seen Dr Christopher Woodgate, pain and rehabilitation medicine specialist, and had undergone rehabilitation at Dorset Rehabilitation Centre. The plaintiff had not improved much over the years and was likely to continue experiencing chronic pain and disability in the future. There would probably be some long-term deterioration. She had no capacity for pre‑injury work and had been suffering from chronic pain related to her injury over the previous eight years. She had not been able to work because of that. In relation to her capacity for work, and based upon her left shoulder alone, it would be extremely difficult or impossible for her to find any suitable job. Dr Calic believed that she did have a capacity for work based upon her neck injury alone, but thought that she would be unlikely to find any suitable job because of her right elbow viewed alone or her psychological condition similarly viewed.

32 A collection of reports from the plaintiff’s former and current physiotherapists was also placed in evidence. I shall not go into them in detail. Mr Suresh Takyar was the plaintiff’s original physiotherapist. His report of 3 August 2015 to the plaintiff’s then solicitors sets out a very detailed account of the plaintiff’s work duties and of the occurrence of injury. Essentially, the plaintiff noted gradual onset of pain in the left shoulder, arm and neck over a period of time and a specific injury to the left shoulder when she was sliding a resident up in bed and turning her over to face the wall. Her major problem involved pain and stiffness of the left shoulder and pain on the left side of the neck. It was also noted that reduced muscle power in the left arm led to overuse of the right arm. She would not be able to return to her previous employment.
33 Subsequently, the plaintiff’s treating physiotherapist was Ms Lauren Palmer, who first saw her following the left shoulder subacromial decompression performed on 10 November 2017. Her report is directed to Mr Thai, the treating surgeon. The plaintiff was having problems with movements of the left shoulder, with most combined movements being minimal and causing the onset of severe pain. There was then a series of reports from Ms Palmer to the case manager on behalf of the defendant. These are dated between 2 January 2018 and 19 February 2018. Ms Palmer was seeing the plaintiff very regularly during this period. In the last of these reports, it is stated that the plaintiff would require further treatment and that she had developed lateral and medial epicondylitis in her right arm due to doing everything with that limb.
34 It would seem that Mr Arvind Jain, orthopaedic surgeon, saw the plaintiff upon referral from Dr Moosa, reporting to that doctor on 22 October 2015. Mr Jain took a history which included an incident when the plaintiff was trying to move a resident. His conclusion was that the plaintiff had suffered a work-related injury to her left shoulder and that her symptoms were of impingement and AC joint arthritis. He advised that an MRI scan be performed and had also arranged for her to have an ultrasound cortisone injection. However, there was no further report from that surgeon and the plaintiff’s treatment seems to have been taken over by Mr Thai.
35 Mr Thai reported to Dr Moosa on 29 October 2015. The brief history contained in that report refers to the incident when the plaintiff was pulling a resident up the bed, heard a crack and felt left shoulder pain. She had returned to work after a few days but, with each shift, the pain in the shoulder became increasingly worse. She was no longer working. She had constant pain in the shoulder, radiating up her neck and down the arm. On examination, the left shoulder was very irritable to active and passive elevation and there was significant muscle spasm.
36 The next report from Mr Thai to Dr Moosa is dated 28 April 2016. By this time, the plaintiff had undergone an MRI scan of the left shoulder, this being upon referral from Mr Thai. In his report, he described the left shoulder as remaining problematic. The MRI scan had revealed subacromial bursitis, with no tears of the rotator cuff tendons. He had arranged for an ultrasound-guided injection to the subacromial space in order to see if this helped the plaintiff’s symptoms. Mr Thai reported to Dr Moosa again on 18 July 2016. There had been no improvement as a result of the subacromial steroid injection. There was a referral to the Western Hospital for consideration of surgery. The injection of the left subacromial space had not provided much relief.
37 Mr Thai reported to the plaintiff’s then solicitors on 6 September 2016. He had taken a history of the incident involving the manoeuvring of a resident in a bed when she heard a crack in the shoulder, with associated pain. There was increasing pain in the left shoulder thereafter. In this report, Mr Thai referred to the MRI scan and to an ultrasound-guided injection to the left subacromial space, which did not help with symptoms. Accordingly, he recommended an arthroscopic subacromial depression. The surgery was approved by the defendant.
38 The plaintiff underwent surgery to the left shoulder on 10 November 2017, when she had a left shoulder arthroscopic subacromial decompression and bursectomy. Post-operatively, the plaintiff suffered from abnormal post-operative pain syndrome and developed signs of a post-operative frozen shoulder. This was subsequently confirmed by an MRI scan some five months later. A decision was made to proceed with a left arthroscopic capsular release in order to treat the frozen shoulder surgically. This was also approved by the defendant. The plaintiff underwent such surgery on 29 November 2018. After the surgery, there was a little improvement, but, despite a pain management program and a repeated hydrodilatation of the left shoulder, it remained stiff and sore.
39 The diagnosis of Mr Thai was of an initial left shoulder subacromial impingement and bursitis and, following surgery, post-operative frozen shoulder. He considered the prognosis to be poor. Both non-operative and operative interventions had been a failure in relation to the plaintiff’s left shoulder symptoms and she remained symptomatic. He considered her condition to be stable and felt it unlikely that there would be any change in the foreseeable future. No further surgery was recommended. Mr Thai thought that the plaintiff may benefit from a chronic pain management program, but also pointed out that she had been involved in such a program and had felt that there was little benefit in continuing with it. He considered that she did not have a current capacity for work. The chronic pain and restriction had caused her significant distress and anxiety. He considered that her initial injury was organic in nature and referred to the investigations and surgery. Unfortunately, despite the surgical interventions, the condition had not resolved. Mr Thai thought that there may be other psychosocial factors contributing to her current symptomatology and that a pain management program may be beneficial.
40 Mr Thai provided a supplementary medical report dated 21 December 2020 to the plaintiff’s solicitors. He went through the history of surgery and treatment which has been set out above. The plaintiff’s left shoulder condition was now stable and no further intervention had been recommended. However, she had developed a right elbow condition, secondary to overuse whilst recovering from her left shoulder condition. She had been diagnosed as having a right tennis elbow. When other treatments failed, the plaintiff underwent a right elbow debridement of the lateral epicondyle and repair of the common extensor origin tendon on 9 July 2020, approval for this surgery having been given by the defendant or its agent. The diagnoses of Mr Thai were of a left shoulder subacromial impingement and bursitis, such condition now being stable; post-operative left frozen shoulder, also stable; and right elbow common extensor tendinopathy, also stable. Surgery had been performed in relation to each condition and liability for it accepted by the defendant or its agent.
41 Mr Thai considered that the plaintiff had a poor prognosis. Surgery had failed and the plaintiff remained symptomatic. Her history was that the symptoms were no better or worse than before the surgery. Mr Thai stated that her condition was stable and that it was unlikely there would be any change in the foreseeable future. He expressed the opinion that the plaintiff did not have a current capacity for work due to her chronic pain issues.
42 Dr Christopher Woodgate, consultant in rehabilitation and pain medicine, has treated the plaintiff upon referral from a different general practitioner, Dr Heydari, of Melton. The first consultation took place on 19 December 2019. Dr Woodgate took a history of the plaintiff’s injury and of the very considerable amount of treatment that she had received. When he first saw her, she was taking OxyNorm 10 milligrams daily; eight Panadeine Forte tablets most days; and 10 milligrams of Temazepam at night. She was also taking Lexapro of a morning. His initial impression was that the plaintiff had persistent complicated left shoulder pain with likely peripheral and central drivers. She was keen to get off the medication. Dr Woodgate referred her to the Dorset Rehabilitation Centre in Pascoe Vale. In addition to other things, he gave her a prescription for a Norspan 50 microgram patch.
43 Dr Woodgate reviewed the plaintiff on 23 January 2020 and 5 March 2020. Apparently the Dorset Rehabilitation Centre had recommended that she have a psychiatric assessment, which Dr Woodgate had requested. His overall diagnosis was of a chronic pain condition, there being reduced movement and usage of the plaintiff’s upper limbs, and significant pain, particularly in the left shoulder. He thought that the plaintiff would get some benefit from a pain management program, but it was unlikely that she would be able to return to her previous employment and quality of life. He expressed the opinion that she would not be able to return to work in a meaningful capacity for the foreseeable future. He repeated that she would not be able to return to any meaningful employment and that there was significant restriction in relation to her social, domestic and recreational activities.
44 Dr Woodgate provided a further report to the plaintiff’s solicitors on 4 August 2021. It recounted some of the earlier history, including, somewhat confusingly, that he had first seen her on 19 December 2019 upon referral from Dr Calic of Caroline Springs, as opposed to Dr Heydari of Melton. In any event, an initial history of the building-up of soreness and pain in the left shoulder followed by a clicking in December 2013 was taken. There was also a history of surgical treatment and the like. The plaintiff described her pain level as being 8/10 on average. In this report, Dr Woodgate dealt with reviews of the plaintiff, focussing upon her treatment at the Dorset Rehabilitation Centre. There was some discussion about possible surgery for the right elbow and right shoulder. When seen on 21 July 2020, the plaintiff had undergone right elbow surgery some two weeks previously. Understandably, reviews of the plaintiff on 21 July 2020 and 1 September 2020 focussed upon the right elbow surgery.
45 As stated in this report, the most recent review by Dr Woodgate had been on 21 June 2021, by which time the plaintiff had undergone a further hydrodilatation and had new problems in her right shoulder. Dr Woodgate considered the plaintiff’s prognosis to be poor and he did not expect her to have any meaningful recovery. Her condition had largely stabilised, that observation probably referring to both shoulders, as there had been previous reference to her complex bilateral shoulder and upper limb pain. Dr Woodgate did not believe that the plaintiff had any capacity for work.
46 A report of 13 August 2021 from Dr Clayton Thomas, consultant in rehabilitation and pain medicine, to the plaintiff’s solicitors was also placed in evidence. Dr Thomas made it clear at the outset that he was writing his report in his capacity as Medical Director for the Dorset Rehabilitation Centre and he had not had any direct patient contact with the plaintiff. His report was based on notes. His concluding observations were that it appeared that the plaintiff had a high degree of pain, suffering and distress and had significant functional limitation, all due to the problems of both shoulders and the elbow. Thus, this report does not advance matters any great distance.
47 The plaintiff’s solicitors have had the plaintiff seen by Dr Kilner Brasier, occupational physician. He reported on 20 September 2019. He took an appropriate history of the gradual onset of left shoulder pain and neck pain, with the symptoms worsening in January 2014 when the plaintiff was turning a resident. He recorded a history of the various surgical procedures and investigations. He also took a history of constant pain in the left shoulder, particularly since the last hydrodilatation procedure, the pain being rated as 8/10. There was also constant left sided neck pain. The plaintiff was attending an orthopaedic surgeon on a monthly basis, in addition to seeing a psychologist and a physiotherapist regularly. This was in addition to regular remedial massage.
48 The diagnosis of Dr Brasier was that the plaintiff had suffered supraspinatus tendinopathy and a partial tear, subdeltoid bursitis, and thinning of the biceps tendon, suggestive of chronic tendinopathy and tear. She subsequently developed symptoms and signs consistent with adhesive capsulitis. This was in addition to an aggravation of cervical spondylosis.
49 In the opinion of Dr Brasier, the physical injury to the plaintiff’s left shoulder precluded such activities as lifting and twisting, pushing, pulling, particularly repetitive pushing, pulling or lifting. She was totally precluded from overhead activities or anything requiring finer manipulative use of the left shoulder. All such incapacity would continue into the foreseeable future. Some similar preclusions were present because of impairment of the neck. Due to her left shoulder injury, the plaintiff had no capacity to perform her pre‑injury duties and this was also likely to last for the foreseeable future. Due to the impairment of the left shoulder, she had no capacity to perform allegedly suitable employment and this was likely to last for the foreseeable future.
50 Dr Brasier stated the same opinion in relation to the plaintiff’s neck impairment. There were also restrictions in relation to social, domestic and recreational activities. Dr Brasier expressed the view that the plaintiff’s injuries to the left shoulder and neck were organic in nature and that the prognosis was poor. In relation to her left shoulder, she had exhausted surgical options, but would require further pain management intervention for both that shoulder and for the neck.
51 Dr Brasier reported for a second time on 16 September 2021, having seen the plaintiff again. He noted that, since last seeing the plaintiff, she had developed symptoms in the right elbow, this being diagnosed as lateral epicondylitis secondary to overuse. The surgery and the nature of the right elbow debridement on 9 July 2020 had not improved the situation. She had also undergone a hydrodilatation procedure in September 2020 and received a cortisone injection on 17 August 2021. She had attended a rehabilitation program. She had become very depressed following her right elbow operation. The plaintiff was complaining of constant right elbow pain, which she rated at 5/10. She had constant pain and stiffness in the left shoulder radiating to the scapular area, and rated that as between 8/10 and 9/10. She had constant headaches and reduced dexterity in her left hand. There was aching of recent onset in the right shoulder. She was taking a combination of Paracetamol and Codeine eight times per day, in addition to two Temazepam and Lexapro.
52 Dr Brasier expressed the opinion that describing the overuse of the right upper limb as resulting from the left upper limb limitation was reasonable. The physical injury to her cervical spine restricted her in relation to employment or activities involving overhead requirements. In relation to the physical injuries to her left upper limb, Dr Brasier set out a comparatively lengthy list of activities that would be precluded, including such things as lifting weights of more than 1 kilogram, heavy pushing or pulling, repetitive pushing or pulling, reaching above shoulder height, prolonged and manipulative use of the left shoulder and the like. He considered that this incapacity would continue for the foreseeable future. In relation to her right upper limb, there were far fewer preclusions, these being heavy pushing or pulling, lifting of weights greater than 5 kilograms and duties that required manual dexterity. These restrictions would also continue for the foreseeable future. The impairment of her cervical spine rendered her incapable of performing her pre‑injury duties and this incapacity would be permanent.
53 In relation to the physical injury impairment of the left upper limb, Dr Brasier considered that, taking into account the plaintiff’s age, education, skills and the like, she had no capacity to perform allegedly suitable employment. Any allegedly suitable employment for which she had transferrable skills and the like would require significant left upper limb demands. She has no capacity for that. Her incapacity is permanent and likely to last for the foreseeable future. The injury to the cervical spine would impact upon her ability in relation to driving a motor vehicle and cleaning above shoulder height. The injury to the left upper limb would also preclude her or restrict her in relation to various social, domestic and recreational activities. A considerably smaller number of restrictions applied in relation to the right upper limb. Overall, Dr Brasier described the plaintiff’s prognosis as being guarded. Her conditions were stable and likely to persist for the foreseeable future.
54Mr Thomas Kossmann, orthopaedic surgeon, saw the plaintiff at the request of her then solicitors, reporting on 1 May 2015. He took an appropriate history, including that of the incident when the plaintiff was moving a patient and heard a cracking sound in the centre of her left shoulder. Of course, this report pre-dates the surgical procedures. In any event, Mr.Kossman recommended referral to a surgeon for further investigations and treatment.. He thought that she had no work capacity. He believed that she had suffered an injury and/or an aggravation of pre-existing degenerative changes in her cervical spine and left shoulder, and that her employment had materially contributed to her injuries and to her present condition. He referred to the plaintiff as being “100% incapacitated”.
55 Mr.Kossman reported again in February 2019. He had taken a detailed history, including that of the particular episode of injury. He also took a history of the treatment, including the surgical procedures and investigations, which she had undergone since he had last seen her. These included treatment of the epicondylitis of the right elbow, noting that the plaintiff stated that this had resulted from the overuse of the right arm. She also outlined such matters as problems sleeping, interference with social, domestic and recreational activities and the like.
56 The diagnoses of Mr Kossmann were of clinical signs of adhesive capsulitis of the left shoulder joint with significant pain and movement restrictions; cervical spondylosis in the form of marked degenerative changes involving the intervertebral disc spaces and posterior elements; and epicondylitis lateralis of the right elbow. He regarded the prognosis in relation to the cervical spine as being guarded and that in relation to the left shoulder as being poor. He considered the plaintiff to have no work capacity at all for as long as she suffered from a frozen shoulder. If her symptoms improved to the extent that she could move her left shoulder more freely, she could possibly return to non-physical work, with restrictions.
57 Mr Kossmann believed that the plaintiff was restricted in relation to employment activities, and believed that this incapacity would continue for the foreseeable future. She had no work capacity to perform suitable employment as a result of the left shoulder injury, and this incapacity was permanent. She was also permanently partially incapacitated as a result of the neck injury. This was also permanent. He again described prognosis in relation to the left shoulder joint as being poor and, in relation to her cervical spine, the condition as being unguarded.

58 Mr Kossmann saw the plaintiff again, reporting to her solicitors on 23 November 2020. In this report, he repeated large portions of his earlier reports in relation to treatment of the injuries. The report also contains some updating, such as the referral of Dr Woodgate and his observations. Mr Kossmann also noted that the plaintiff had received five cortisone injections into the right elbow, in addition to surgical treatment by Mr Thai. The plaintiff outlined the pain and problems with the right arm which she was experiencing. She was taking a considerable amount of medication. On this occasion, the diagnoses of Mr Kossmann were clinical signs of adhesive capsulitis of the left shoulder joint with significant pain and movement restrictions; cervical spondylosis in the form of marked degenerative changes involving the intervertebral disc spaces and posterior elements; and epicondylitis lateralis of the right elbow, upon which surgery had been performed, and with ongoing pain issues and fixed flexion deformity in the right elbow joint. Mr Kossmann regarded the plaintiff’s condition as being stabilised. He considered her to have no work capacity to perform suitable employment as a result of her left shoulder joint condition, and believed this to be permanent. He made the same comment in relation to her cervical spine condition. The plaintiff was also restricted in relation to social, domestic and recreational activities.
59 Mr Kossmann reported to the plaintiff’s solicitors for the final time on 6 July 2021, having examined the plaintiff again. I shall not go through the detailed history of events and treatment which are again set out in the report. He noted that, since the last examination, the plaintiff had undergone further hydrodilatation of the left shoulder and apparently had undergone a further ultrasound of the left shoulder joint some four to five weeks prior to his examination. The plaintiff had ongoing severe pain issues and limited mobility in the left shoulder joint and could not lift her arm. She had difficulty straightening her right elbow and things fell out of her right hand. She also suffered from headaches and other symptoms. She was seeing a psychiatrist once a month. Her social, domestic and recreational activities had been severely compromised. The defendant had approved home help of two hours per week and the assistance of a gardener.
60 The diagnosis of Mr Kossmann was of diminishing clinical signs of adhesive capsulitis of the left shoulder joint, with significant pain and movement restrictions; cervical spondylosis; and epicondylitis lateralis of the right elbow. Overall, he considered that the plaintiff’s condition had not improved significantly since the last examination in November 2020. He continued to regard the prognosis in relation to the cervical spine as being guarded and that in relation to the left shoulder as being poor. Mr Kossmann also considered that the prognosis in relation to the right elbow was guarded. He considered the plaintiff to have no work capacity at all. The plaintiff’s incapacity resulting from the injuries to the left shoulder and cervical spine was likely to last for the foreseeable future.
61 A report from Associate Professor Bruce Love, orthopaedic surgeon, of 15 July 2015 is included in the Plaintiff’s Court Book but, like some other reports, it is under the heading “Defendant’s Reports”. However, it is addressed to the plaintiff’s then solicitors. In any event, it concerns a medico-legal examination. It contains a history of the incident when the plaintiff was pulling a patient up a bed and of ongoing pain at work until cessation of employment. The symptoms continued, and were principally in the left side of the neck and shoulder. Associate Professor Love was of the view that the plaintiff had constitutional changes in the cervical spine, which had been rendered symptomatic by the pulling of a patient up a bed, with such symptoms being in the neck and left shoulder. Associate Professor Love also thought that the plaintiff had a mild degree of rotator cuff tendonitis of the left shoulder. He implicated employment. The plaintiff did not have a capacity for work at the time that he saw her. Given the subsequent treatment of the plaintiff, including surgery, the report has been overtaken by events to a considerable extent.
62 Dr Lester Walton, consultant psychiatrist, has examined the plaintiff at the request of her solicitors. He has provided three reports. The most recent of these is dated 26 August 2021. His diagnosis was of chronic adjustment disorder with mixed anxiety and depression. He regarded her symptoms as being chronic. Dr Walton expressed the view that the plaintiff continued to suffer from substantial incapacity for work on psychiatric grounds alone, stating that he would not be surprised if she was deemed to be totally incapacitated once her physical problems were also included. He could not identify any specific alternative employment for her.
63 In his second report of 11 December 2020, Dr Walton expressed the view that the prognosis was guarded and that chronicity of both physical and psychiatric problems was the most likely outcome. Her psychiatric condition, viewed in isolation, would limit her to around 10 hours work per week, and it was increasingly likely that this limited capacity would be permanent. In his initial report of 8 March 2019, Dr Walton had diagnosed a chronic adjustment disorder with mixed anxiety and depression, this occurring as a reaction to her physical injuries and the associated pain. Given the lack of emphasis upon paragraph (c) of the definition, I have not gone into the reports of Dr Walton in greater detail.
64 The Plaintiff’s Court Book contains a number of reports relating to medico-legal examinations on behalf of the defendant. I shall deal with them whilst discussing the defendant’s medical material, to which I shall now turn.
65 Mr Phillip Sharp, senior consultant surgeon, provided four reports to the defendant or those on its behalf. They are all what could be described as early reports, being dated between 14 July 2014 and 20 October 2014. The plaintiff described the incident some months earlier when she had been moving a female patient and felt a pulled muscle in her left shoulder. She was off work for approximately one week, during which time her symptoms decreased. The pattern continued of feeling pain in her left shoulder on lifting patients and the pain then decreasing on her days off. Her symptoms gradually increased.
66 According to Mr Sharp, the plaintiff ceased work on approximately 6 June 2014 (which fits in with the general impression that she had ceased work prior to 1 July 2014). At this stage, the plaintiff was not seeing a doctor, but was about to see a physiotherapist and was taking four to five Panadeine Forte tablets a day, in addition to Celebrex. She denied prior injuries to her shoulders or neck, referring to the removal of nasal polyps, a right knee arthroscopy and knee meniscectomy. Mr Sharp speculated that the plaintiff may have sustained an injury to the supraspinatus tendon of the left shoulder, this occurring after she moved a patient some eight months previously. Mr Sharp expressed the view that this appeared to be a new injury and that her employment had contributed to it. She did not have a capacity for employment at the time that he saw her. He predicted that appropriate treatment might even include surgery before there could be a full return to work.
67 Mr Sharp reported to the defendant again on 30 July 2014. He agreed with a proposed return to work plan. He had also read an x‑ray report in relation to the left shoulder, in addition to an ultrasound performed on 14 July 2014. The radiology was essentially normal, apart from early degenerative changes seen in the left acromioclavicular joint. He suggested that x‑rays of the plaintiff’s neck may be helpful. He thought that a number of restrictions suggested by Dr Brophy in relation to working above shoulder height, lifting patients and the like were reasonable.
68 Another brief report of 11 September 2014 essentially related to a copy of a cervical spine x‑ray performed on 31 July 2014, which showed marked degenerative changes. Mr Sharp then commented that it was unlikely that the plaintiff’s injury had resolved. However, he believed that her symptoms were due to the constitutional or degenerative changes in her cervical spine. This very early opinion would seem to have been overtaken by events, including surgical intervention. In any event, he agreed with the return to work plan effectively not requiring the lifting of more than 5 kilograms or working with the neck in a fixed position. The final report from Mr Sharp was on 20 October 2014. Again, it is apparent that he had not seen the plaintiff after the initial interview. On this occasion, he took the view that her employment was no longer a contributing factor to her incapacity. This view seems to have been at least partly influenced by some surveillance material relating to the plaintiff’s shopping activities. Again, this has been overtaken by events, including multiple surgeries, and, in any event, no surveillance material was placed in evidence.
69 Dr Bruce Low, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 23 March 2020, reporting on 2 April. The principal reason for this examination appears to have been to obtain the opinion of Dr Low as to whether right elbow tendonitis symptoms were related to what he described as the compensable left shoulder claim. He was also asked as to whether cortisone injections were necessary and reasonable for the plaintiff’s treatment. Dr Low noted the history of surgeries and hydrodilatation in relation to the left shoulder and the plaintiff’s complaint that the left shoulder was “still no good”. Further, he noted that the plaintiff had tennis elbow symptoms in the right elbow, but no right shoulder trouble. She described her left shoulder as being her biggest problem. The left shoulder pain was associated with neck pain. The plaintiff could not put any stress through her right arm because of the chronic tennis elbow symptoms.
70 In answering specific questions, Dr Low stated that the plaintiff had been left with chronic stiffness, weakness and pain in the left shoulder and also had a stiff painful neck. He also expressed the view that the plaintiff had no work capacity. He regarded her employment as still materially contributing to the right elbow problem, although it is somewhat confusing as to whether he was making that observation in relation to the right elbow condition or the left shoulder condition. This apparent confusion is because, in the following paragraph, Dr Low describes the right elbow condition as a constitutional problem. He went on to say that indirectly it is related to the left shoulder injury, because of the chronic dysfunction in her left arm and the need to put more stress through the right arm.
71 Dr Low stated that the left shoulder injury, for which liability had been accepted, remained a materially contributing factor to her current condition and incapacity. He regarded the right elbow condition as being constitutional in nature and unrelated to the left shoulder. However, once again, he went on to say that, because she could not use her left arm, she had overloaded the right elbow and thus there is an indirect contribution from the work-related condition.
72 Dr Low described the plaintiff as being severely disabled, stating that she could not work and had significant dysfunction in the left and the right arms. She also needed some treatment for her secondary depression due to the stress of not working and due to the pain. He expressed the opinion that her left shoulder condition was definitely work-related, and repeated that she had no work capacity, needing treatment for the right elbow and for the left shoulder. It is apparent that he considered the plaintiff’s left shoulder and arm to be the more serious complaint and stated this more than once.
73 Dr Low provided a supplementary report to the defendant on 7 May 2020. It does not appear that he saw the plaintiff again. He was asked a specific question as to whether the plaintiff’s right elbow injury had been exacerbated, aggravated, accelerated or deteriorated by the accepted left shoulder injury. His answer to that was in the affirmative. The condition of the plaintiff’s right elbow had been aggravated by the left shoulder injury.
74 Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitors on 9 February 2016, reporting on 24 February. Mr Dooley took a detailed history. He stated that, based on the history, he believed that the plaintiff may have sustained a soft tissue-type injury to the left shoulder region in the original incident when she was pulling a resident up in bed. He also referred to the possibility of a strain-type injury occurring to the rotator cuff region. He expressed the opinion that her subsequent history was not typical for such an injury. In this regard, he placed some emphasis upon the plaintiff’s complaints of constant ongoing pain, which required strong medication. He noted that the plaintiff had been most upset when dismissed from her employment and believed that she had a psychological reaction to her situation. This was significantly influencing her ongoing symptoms and presentation. He thought that there was no indication for the necessity of undertaking cortisone injections or for surgical intervention. He did not believe that she had sustained any injury to the cervical spine. However, based on her history, her employment had been a significant contributing factor to the onset of her shoulder girdle pain. He considered that she had the capacity to carry out light physical work and clerical duties. This report pre-dates the surgical intervention.
75 Mr Dooley reported to the defendant’s solicitors again on 22 March 2016. This brief report was in relation to surveillance material. No such material was placed in evidence, so the report of Mr Dooley does not take matters any further.
76 Mr Dooley re-examined the plaintiff at the request of the defendant’s solicitors on 5 March 2019, reporting on 21 March. Of course, by this time the plaintiff had undergone two operations on the left shoulder. Mr Dooley remained of the view that the plaintiff had suffered a soft tissue injury to the left shoulder, which may have involved a muscular strain of the superficial muscles of the shoulder or some aggravation of underlying degenerative rotator cuff disease. He also referred to a psychological reaction. In his opinion, the MRI scan which she had undertaken subsequent to his earlier reports showed what one would expect to find in many patients of her age, namely some mild degeneration of the supraspinatus tendon and a small amount of fluid in the subacromial bursa. He noted that it had been decided to undertake subacromial decompression surgery, following which the plaintiff’s pain was worse and her recovery was slow and painful. The second operative procedure was undertaken on the basis of post-operative adhesive capsulitis. That had not resulted in any lasting improvement in symptoms. The plaintiff complained of constant ongoing pain and major disability. There were some inconsistent signs on clinical examination.
77 Clearly Mr Dooley was critical of the decision to carry out surgical intervention. There would have been a definite risk of surgery compounding the plaintiff’s clinical situation and, according to Mr Dooley, not surprisingly this has been the outcome of the surgical intervention. He made some observations about medicine being a vocation, rather than a business. However, I would point out now that, as disappointing as it may be for Mr Dooley, the plaintiff underwent two operations to the shoulder performed by an orthopaedic surgeon. The operations were in relation to an accepted injury and, as I understand it, paid for accordingly.
78 In any event, Mr Dooley stated that, from an orthopaedic point of view, the plaintiff would have a physical capacity to work as a receptionist, secretary, sales representative and telephone sales consultant. However, a return to suitable work would need to be on a graduated basis. In time, “… one would be able to better estimate the number of hours that Ms Price would be able to work”.
79 Mr Dooley reported again to the defendant’s solicitors on 27 August 2019, having re-examined the plaintiff on 19 August. The plaintiff was complaining of constant ongoing left shoulder girdle pain and was due to have a hydrodilatation injection the following week. He also noted ongoing pain in her right elbow, for which she had received injections. These helped for a few months. Her left shoulder was getting worse. She was depressed and sleeping poorly. Mr Dooley’s diagnosis and opinion remained as previously outlined. In the work-related episode, the plaintiff sustained a soft tissue injury to her left shoulder, with some psychological reaction. He was still of the view that her ongoing pain was disproportionate to her organic situation and that her psychological condition was substantially influencing her ongoing symptoms. He did not make any comments in relation to the necessity or effects of surgery, other than repeating that, after the first surgery, her pain was worse. She developed adhesive capsulitis and underwent further surgical intervention. She described constant ongoing left shoulder girdle pain and major disability. Mr Dooley believed that the plaintiff would have the physical capacity to work as a community centre receptionist, a sales administrator or an admissions coordinator.
80 Mr Clive Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant, reporting on 7 August 2018. Mr Jones took a detailed history. He also noted that, approximately 12 months previously and without any new injury, the plaintiff suffered from pain in the right shoulder and around the right elbow. Mr Jones, who thought that the plaintiff was a genuine individual, remarked that there was bilateral shoulder pain of about equal intensity, along with the more recent appearance of painful right elbow. He thought that the plaintiff had a strong pain focus and referred to her chronic pain disorder. He thought that, if motivated, she could undertake work of a secretarial nature. He stated that he would not be impressed by claims of overuse syndromes, “… no matter how strongly pushed by the worker’s medical advisers”. As far as he was concerned, the diagnosis of the right shoulder was of a simple tendonitis and would not benefit from remedial massage. In fact, he did not believe that the left and right shoulder symptoms were related in any meaningful way to the plaintiff’s employment. It is to be noted that his report pre-dates the second operation on the left shoulder and the more intensive treatment for the tennis elbow.
81 The Defendant’s Court Book also contains a report from Professor Ivor Jones, consultant psychiatrist. This report is dated 27 April 2006 and deals with circumstances surrounding the plaintiff’s employment with The Herald & Weekly Times, the cessation of such employment and her mental health. It may have some passing relevance to the plaintiff’s reliance upon paragraph (c) of the definition, but even then the weight to be attached to it would be small. I shall not set out the details contained in it.
82 That concludes my summary of the voluminous medical material put in evidence. I turn now to my conclusions as to the individual injuries. For the moment, I leave to one side the issue of whether there can be some aggregation of the left and right shoulder and arm injuries.

(f) Ruling as to the individual injuries
(i) The left upper limb
83 I am satisfied that the injury to the plaintiff’s left upper limb arose out of or in the course of her employment with the defendant. I accept that the injury arose out of both a specific incident when she was trying to pull up a patient in bed and as a result of the general nature of her employment, particularly after that incident. For the purposes of the accepted claim, the allocated date of injury was 1 July 2014, although the date of the specific incident would appear to have been prior to that. In any event, the claim was accepted. I appreciate that there are limitations as to what use that can be made of acceptance of a claim, but I would point out that, in the present case, that acceptance seems to have extended to the payment of surgical, medical and the like expenses over a lengthy period.
84 I appreciate that the histories given to various medical examiners are not precisely the same, but that also is to be expected. What does seem to me to be of some significance is that the plaintiff has given various medical examiners over several years a history of the onset of pain in the neck and left shoulder region after pulling a patient up in a bed and there being increasing neck, and particularly left shoulder, symptoms thereafter. I am quite satisfied that the plaintiff injured her left shoulder in the manner which she has described and that such injury involved both the specific moving of a patient and the course of employment generally.
85 The plaintiff has had a large amount of medical treatment of her left shoulder thereafter, including two surgical procedures, and taken a large amount of medication in relation to her pain. I also accept that neither surgical procedure was particularly successful.
86 It seems to me to be not to the point that a medico-legal examiner, such as Mr Dooley, expresses the opinion that such surgery was unnecessary and appears to be somewhat disturbed as to the path down which the medical profession seems to be heading. Mr Dooley is fully entitled to express his views, as are other examiners, but in the present case such an argument comes too late. The plaintiff was advised by her treating surgeon. She agreed to have the operations. The defendant approved and, as I understand it, paid for them. Neither was successful and the plaintiff now complains of a type of frozen left shoulder.
87 The sequence of events is that the plaintiff is alleging injury in the course of her employment. I accept that this occurred. She had a considerable amount of treatment. Surgery was twice recommended. Surgery was approved. The plaintiff underwent it. The results have not been satisfactory. The plaintiff has been left with a left shoulder problem, including pain and limitation of movements of the left arm. I am satisfied that these ongoing symptoms and restrictions emanate from the employment. They are consequences of the injury and the chain of causation seems to me to be somewhat direct.
88 Insofar as the injury might represent the aggravation of a pre-existing condition, such condition, if it was symptomatic at all, was not productive of symptoms of sufficient magnitude to prevent the plaintiff from engaging in regular employment as a personal care attendant and performing the tasks associated with such employment. I am also satisfied that the consequences of the employment and the accident are permanent in that they will persist for the foreseeable future. Dr Calic has stated that the plaintiff is likely to continue experiencing chronic pain and disability in the future, with a probability of some long-term deterioration. The operating surgeon, Mr Thai, considered that the plaintiff had a poor prognosis; her condition was stable, and it was unlikely that there would be any change in the foreseeable future. Dr Woodgate stated that the plaintiff’s prognosis was poor and he did not expect her to regain any meaningful recovery. Dr Brasier expressed the opinion that the plaintiff had no capacity to perform allegedly suitable employment, and this was likely to last for the foreseeable future. I accept that the consequences of the injury, including the loss of earning capacity, are permanent within the meaning of the Act.
89 In assessing the physical injury to the plaintiff’s left upper limb, I have left to one side any injury of a psychological or psychiatric nature. There is a separate reliance upon paragraph (c) of the definition, even if that reliance is not great. That, however, is a separate matter. I have not taken into account such consequences in arriving at my finding in relation to the left shoulder injury, or, for that matter, the right elbow injury if it is seen as a consequence of the injury to the left shoulder.
90 In determining whether the consequences of the injury meet the requirements of paragraph (a) of the definition, consequences of a psychological or psychiatric nature are not being taken into account. Apart from the fact that there is separate reliance upon paragraph (c), even if this has not been pursued with any vigour, such consequences should not, and will not, be taken into account in assessing whether the organic injury to the left shoulder and upper limb has been successful.
91 The next question is whether the consequences of the injuries to the left arm are productive of a loss of earning capacity of sufficient magnitude to satisfy the statutory requirements. I am satisfied that they are. I appreciate that the plaintiff was a part‑time worker and that she would not have to be capable of earning any great amount before she would fail to discharge the burden of proof. Ultimately the proposition put by Mr Batten in closing submissions was that, if I find that the plaintiff has a residual capacity for some work, the plaintiff could not succeed on economic loss – see T94. He argued that the Commonwealth benefit, which the plaintiff is receiving in relation to the care of her mother, is correctly described as an allowance and should be taken into account as being a post-injury earning. In my opinion, such an allowance does not fit well within the statutory definition or formula. It involves the concept of gross income, expressed at an annual rate, that a worker was earning or was capable of earning from personal exertion. I am of the opinion that a lot more evidence would be required in relation to the nature of such a social security benefit and the mechanics of it, before I could be persuaded that it should be taken into account as post-injury earnings in the calculation of loss of earning capacity. I am in no way being critical of Mr Batten, but this somewhat innovative argument would need a lot more supporting material and argument before I could be persuaded to adopt it.
92 In summary, and having regard only to the injury to the plaintiff’s left upper limb, I am satisfied that she is totally and permanently incapacitated for employment. I accept the evidence of the plaintiff’s treating general practitioner, Dr Calic. In his report of 6 April 2020, and focussing solely upon her left upper limb, he stated that she had very limited capacity, if any, for any suitable work in the future. In his report of 14 October 2021, he has dealt with the results of the injuries separately. He stated that, based upon her left shoulder condition alone, it would be extremely difficult or impossible to find any suitable job for her. I accept that.
93 The operating surgeon, Mr Thai, described the course of treatment and surgery in relation to the plaintiff’s left shoulder and stated that the prognosis was poor. Both left shoulder operations had been a failure. Prior to his treating her for her right elbow condition, but after her left shoulder surgery, he considered that she did not have a current capacity for work. He also observed that her condition was stable and that it was unlikely there would be any change in the foreseeable future. At that time, as I understand it, right elbow surgery had not been contemplated.
94 Dr Woodgate, who has also treated the plaintiff, stated that the plaintiff would not be able to return to work in a meaningful capacity for the foreseeable future. Admittedly he was dealing with symptoms in both upper limbs, but he referred to significant pain particularly in the left shoulder. I shall return to the question of whether the right elbow injury can also be taken into account, but I repeat that, in my opinion, the consequences of the injury to the left arm viewed on its own are sufficient to satisfy the statutory requirements.
95 Dr Brasier, occupational physician, expressed the opinion that, because of the impairment of the left shoulder, the plaintiff had no capacity to perform suitable employment, a situation that was likely to persist into the foreseeable future. I would point out that he expressed this opinion prior to the plaintiff developing symptoms in the right elbow and prior to his second report of 16 September 2021. It is quite clear that, as at the time of Dr Brasier’s second report, the level of pain and stiffness in the plaintiff’s left shoulder exceeded that of her right elbow pain. He also referred to fewer preclusions resulting from the right elbow injury, as opposed to the left shoulder injury.

96 Mr Kossmann has opined that the plaintiff has no work capacity to perform suitable employment as a result of her left shoulder joint condition. He has also listed the various aspects of employment and of other activities which the plaintiff will be unable to perform in the foreseeable future. He has made similar observations concerning the condition of her cervical spine, which he considers to be involved in the injury and its symptoms, but has specifically directed his attention to the left shoulder condition.
97 I accept the above and prefer these opinions to those of Mr Dooley. I note that Dr Low, orthopaedic surgeon, also examining on behalf of the defendant, expressed the opinion that the plaintiff had no work capacity. In so doing, he may have been taking into account the right elbow condition in addition to the left shoulder injury, although he did state that the condition of the plaintiff’s right elbow had been aggravated by the left shoulder injury. He considered the injury to the plaintiff’s left shoulder and arm to be the more serious complaint.
98 When all of the above is weighed up, I am of the opinion that the injury to the left shoulder, viewed alone, has destroyed the plaintiff’s capacity for employment. I am satisfied that she is permanently and totally incapacitated for work as a result of the injury to her left shoulder.
(ii)     The relevance of the right elbow condition
99 As I have found for the plaintiff in relation to the left upper limb injury and the total incapacity that has resulted, there is probably no need for me to determine the relevance or the status of the right elbow injury. However, since the issue was raised, I would say the following.
100 In my opinion, the injury to the right elbow can be taken into account, because it would appear to be a consequence of the injury to the left shoulder and arm. I accept the proposition, put forward by at least a couple of the medical examiners, that the overuse of the right arm and resultant injury to the elbow was consequential upon the overuse of that arm, which resulted from the injury to the left upper limb.
101 If, as a result of an injury to one limb, the injured person favours the other and it is injured as a result of that overuse, the injury to that favoured limb can be taken into account as a consequence of the original injury. As was said by His Honour Judge Saccardo in Tavendale v The Age Co Ltd [2009] VCC 0642 and discussed in Lexa v Transport Accident Commission [2019] VSCA 123, reliance upon an originally non-injured limb may be permissible if that limb has been favoured and overused as a consequence of injury to the other limb. I would refer to the following extract from the Judgment in Tavendale as set out in Lexa at paragraph 49:
“In my opinion, it is appropriate to categorise the plaintiff’s injury to the right knee as arising as a consequence of the injury occasioned to the plaintiff’s left knee because it was caused directly by reason of the fact that the plaintiff, in protecting his left knee following his injury, altered his gait which in turn exposed his right knee to unusual and unnatural pressure with the result that his right knee became symptomatic.”
102 The Court of Appeal went on to state that this was a very different circumstance from the case before them where, whilst there were two shoulder injuries suffered in a car accident, neither was claimed to be a product of the other. I would also refer to the observations of the Court of Appeal in Victorian Workcover Authority v Brassington [2021] VSCA 236.
103 In summary, in the present case there is medical support for the proposition that the plaintiff, by placing added requirements on the use of her right arm as a result of the injury to the left, suffered an injury to the right arm which can be taken into account as a consequence of that left arm injury. It is not necessary for me to take that additional step but, were it so, I would be of the view that the right elbow injury is a consequence of the injury to the left upper limb.
(iii)    Psychological or psychiatric impairment
104 In the presentation of the plaintiff’s case, reliance upon a paragraph (c) claim was not emphasised and, at times, the impression given was almost that it had been abandoned. Nevertheless, this did not officially occur.
105
Were it necessary to give a ruling in relation to it, I would not be of the opinion that the required severity had been made out. I would remain of the opinion that loss of mental powers did not play any significant role in the plaintiff’s loss of earning capacity. Dr Lester Walton opined that the plaintiff’s psychiatric condition, viewed in isolation, would limit her to “around 10 hours work per week”. Apart from anything else, and bearing in mind that the plaintiff was a part-time worker, this may not have been evidence of sufficient weight to enable the plaintiff to discharge the burden of proof.
106 Further, I would point out that, in his closing address and in answer to a question of mine, Mr McDonald stated that the case “wouldn’t fit the criteria” required for a paragraph (c) claim – see T110.
(g)    Pain and suffering
107 As leave has been granted in relation to loss of earning capacity, no detailed analysis of the evidence in relation to pain and suffering is required. In any event, I am quite satisfied that, were it required, the plaintiff has discharged the burden of proof in relation to pain and suffering. As noted by Dr Calic in his report of 24 January 2019, the plaintiff was experiencing chronic pain on a daily basis. In his report of 6 April 2020, he said it was likely that the plaintiff would continue to experience left shoulder pain and difficulties, and that it was likely she would experience deterioration of that condition if she started to use her left arm more in the future.
108 In his last report of 14 October 2021, Dr Calic expressed the view that the plaintiff was likely to continue to experience chronic pain and disability in the future, with probable long-term deterioration. I shall not go through the medical reports in detail, but would refer to the summary of them set out above. In any event, I accept that the plaintiff has suffered, and will continue to suffer, chronic pain, usually daily. She has been on a high regime of medication. She has undergone two surgical procedures, which have given her no relief. Dr Calic referred to the plaintiff as having chronic pain and restriction. She has had a high level of medical treatment generally. She has suffered restrictions in relation to social, domestic and recreational activities. She has sworn that her sleep has been particularly bad.
2Having taken matters such as these into account, were it necessary I would have been comfortably satisfied that the plaintiff had discharged the burden of proof in relation to pain and suffering.

Conclusion
3The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings for pain and suffering damages and for loss of earning capacity.
4I shall hear the parties as to any further orders that are required.

[2022] VCC 518

22 April 2022