Raffaut v Orica Limited
[2012] VCC 645
•22 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02305
| PAULETTE RAFFAUT | Plaintiff |
| V | |
| ORICA LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24 and 26 April 2012 | |
DATE OF JUDGMENT: | 22 May 2012 | |
CASE MAY BE CITED AS: | Raffaut v Orica Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 645 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the cervical spine - left shoulder – non organic factors - chronic pain syndrome- psychiatric impairment - pain and suffering – loss of earning capacity.
LEGISLATION CITED – Accident Compensation Act 1985; ss.134AB(16)(b), 134AB(37) and (38).
CASES CITED – Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle (2009) VSCA 170; AG Staff P/L v Filipowicz, Arnold Ribbon Co P/l v Filipowicz (21012) VSCA 60; Ansett Australia Ltd v Taylor [2006] VSCA 171; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 501; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem PtyLtd [2005] VSCA 227.
JUDGMENT – Leave granted to bring proceedings for pain and suffering and loss of earning capacity for psychiatric impairment.
Application dismissed in relation to the cervical spine and left shoulder
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr M Garnham | Shine Lawyers |
| For the Defendant | Mr C Miles with Ms S Bailey | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant between 2005 and February 2007 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body functions relied upon in this application are the cervical spine and left shoulder.
5 The plaintiff also beings this application pursuant to clause (c) in relation to a permanent severe mental or permanent severe behavioural disturbance or disorder.
6 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
7 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
8 The plaintiff relied upon one affidavit and gave viva voce evidence. She was cross examined. Dr Shvetsov, the plaintiff’s treating psychiatrist, Dr Phan the plaintiff’s general practitioner and Dr Blombery, medico legal expert were required to attend for cross examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
9 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
10 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
11 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity;
12 By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”;
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
19 The plaintiff is presently aged fifty seven, having been born in June 1954 in Mauritius.
20 After she completed secondary school, the plaintiff obtained teaching qualifications and taught for a number of years at primary school level. She then lived for a couple of years in Saudi Arabia with her husband. After returning briefly to Mauritius, the plaintiff and her husband then moved to Australia in about 1988.
21 In Australia, the plaintiff worked for a number of years with the ANZ Bank (“ANZ”) as a word processing operator and a help desk officer.
22 In about November 1999, the plaintiff began working as a contractor and was later confirmed as a full time permanent help desk operator for the defendant. After a few years, this role changed to an access management officer which involved the plaintiff creating log-in IDs and email IDs and dealing with customers’ computer access and identity problems. That work required the plaintiff to be very computer based and entailed her being seated and operating computer keyboards over long hours.
23 During 2005 and 2006, the plaintiff began to get a lot of upper back, neck and left shoulder pain while working. She initially felt pain in both her left arm and neck. Doctors whom the plaintiff saw at the outset did not know where her pain was coming from.
24 In cross examination, the plaintiff confirmed there was no problem with her neck or hands before she hurt herself at work with the defendant. She described the 2004 work Christmas party where she danced all night without any difficulty. She denied having problems with the fingers on her left hand in 1995.
25 In cross examination, the plaintiff was shown a DVD taken in January 2012 of a workstation at the defendant’s premises. The plaintiff denied this was the same set up as her work station. Her work station had a cabinet on the left side and there were no windows in the area in which the plaintiff worked.
26 Further, the plaintiff did not have two flat screens on her desk. On the left side of her desk, she had one flat screen computer and on the right, a big, old monitor. The two screens were far from each other. The plaintiff agreed her chair was on wheels and it was flexible in that it could be bent backwards. The cabinet under the desk was not on wheels.
27 The plaintiff denied the allegations made by Mr Carrick, the defendant’s worker’s compensation manager, that the plaintiff’s work station was ergonomically sound and that she did not have to sit in an awkward position.
28 Because of her pain, the plaintiff went off work on 28 August 2006 and returned on restricted duties in mid January 2007. Due to ongoing upper back, neck and left shoulder pain, that return to work only lasted about a month
29 In cross examination, the plaintiff agreed that on 15 January, she returned to work on light duties, involving no keyboard work. Her duties included distributing mail for ten minutes, putting key cards in envelopes and writing names on envelopes.
30 The plaintiff had problems with a number of issues on her return to work. She had pain in the middle of her back, going to her neck on the left side even though she was provided with a very ergonomic chair. She was asked to move a big trolley to clean up Christmas decorations. She thought the person who asked her to do this was very unkind. The plaintiff was also upset when she was reprimanded for making a private phone call at another worker’s desk even though she had not taken personal calls on any regular basis.
31 The plaintiff’s workmates did not treat her kindly on her return to work. The plaintiff would attend for work for an hour and then go home. On her way home one night, the plaintiff came across a suicide at the railway station (“the station suicide”). The plaintiff found this event upsetting and she was sent to a psychologist by the defendant.
32 The plaintiff had a problem with the psychologist, who not knowing about the plaintiff’s earlier suicide attempt, told her that once someone decided to commit suicide they could not be stopped. The plaintiff thought that the psychologist was working in the defendant’s interests.
33 The plaintiff also described being upset at having to wait for two and half hours to see Dr Horsley in relation to her injuries. The plaintiff thought the taxi driver who had driven her to the appointment was not a real taxi driver and that the nurse and Dr Horsley were spying and checking on her at the appointment. The plaintiff thought this was the case otherwise the appointment would have been cancelled. In cross examination, the plaintiff said Dr Horsley was mistaken when she thought there was only an hour and a half delay before she saw the plaintiff.
34 In late 2006, Dr Horsley organised a steroid injection and a hydrodilatation of the plaintiff’s left shoulder.
35 Mr Li, orthopaedic surgeon, carried out a left shoulder arthroscopy in May 2007. Dr Mitchell gave the plaintiff nerve block injections in her upper back. Around this time, the plaintiff also had physiotherapy treatment with Mr Cocking. She did not feel that those procedures and treatment helped much in terms of left shoulder pain and limitation of movement.
36 Because of ongoing left shoulder and neck pain, the plaintiff participated in a pain management treatment at Epworth (“the Epworth program”) but did not complete it. She thought that was partly because since the onset of her injury she had struggled a lot with depression.
37 In cross examination, the plaintiff described her issues with the Epworth program. On one occasion she was told by Epworth staff that they were trying to push her to go back to work. The staff was driving the plaintiff mad and she did not trust them as they took away her cushion and would not let her get comfortable. The plaintiff then said that the staff were very nice but “they had their purpose.” They were not really tricking her but they were “doing their routines,” not allowing her to sit.
38 An Epworth doctor told the plaintiff that she could not return to work involving typing. The plaintiff told Dr Phan that the Epworth program was no good for her.
39 The plaintiff deposed in January 2011 that she got upset and frustrated with her constant pain and sometimes got aggressive and angry and had suicidal thoughts. Her memory and concentration were quite poor and her energy levels were very low. She then thought her depression was worse. She slept very poorly and found herself constantly thinking about how her injuries arose at work and the mess her life was in.
40 The plaintiff deposed that about twenty two years ago and from around the time of the birth of her son, and also at the time of marital difficulties, she suffered from depression, but she could not remember having treatment.
41 The plaintiff had constant pain in her left shoulder, arm, wrist, neck and the middle of her upper back. She used a heat pack in winter to try and help ease the pain. When seated for too long in one position, she got pain in the middle of her back going up to her neck and shoulder. She felt as though she had decreased range of movement in her left shoulder and now could not lift heavy objects with her left hand.
42 Movements involving the plaintiff bending and twisting her upper back and neck could bring on pain and it was difficult to get comfortable sleeping. Many everyday activities were affected. It could be difficult dressing and the plaintiff put her bra on back to front. She also found it difficult hanging out the washing.
43 As at January 2011, the plaintiff had seen Mr Hogan, psychiatrist, and Mr Xenos, neurosurgeon. At times, her compliance with taking medication and seeing doctors had been erratic. She thought that related to her frustration and poor mental health.
44 The plaintiff was then seeing Dr Phan and Dr Shvetsov, psychiatrist. She was taking antidepressant medication as well as Nurofen Plus for pain relief and sometimes she took Valium.
45 In cross examination, the plaintiff explained she stopped seeing Dr Shvetsov between July 2009 and November 2010 because her own doctor was giving her prescriptions. However the plaintiff agreed she was not taking medication all the time because she totally disliked taking “anything chemical.”
46 The plaintiff went back to Dr Shvetsov because she was getting more and more “loopy”. She disagreed she recommenced seeing him because her weekly payments had stopped.
47 The plaintiff then agreed that if she felt suicidal and very depressed as Dr Epstein recorded was the case at the time her weekly payments were terminated, the first thing she would do was run to the doctor.
48 Beyond her physical symptoms, the plaintiff’s depression caused her to lack motivation and at times she became quite depressed about her situation and that limited her social activity.
49 Most of the time, the plaintiff lived by herself, though occasionally relatives stayed. She often required assistance from others to carry out heavier housework. She had to pace herself slowly with the limited housework she did. She then had a three year old grandchild with whom she could not play freely because of her injury. Because of the plaintiff’s pain and depression she did little socially.
50 The plaintiff had always enjoyed playing games such as volleyball and badminton socially and with her children but could no longer play those games. Over the years she had also enjoyed fishing and that was something that now aggravated the areas of pain. She used to love dancing but she could no longer do so freely.
51 In cross examination, the plaintiff confirmed that prior to suffering injury, she played volleyball and badminton with the family in the back yard.
52 The plaintiff went fishing with her husband while they were married and a couple of times thereafter, last going in about 2002. She last went fishing with her ex boyfriend at Tooradin in 2005. She cannot go fishing any more because of the problems she has sitting.
53 In her second affidavit sworn on 2 April 2012, the plaintiff elaborated on her earlier affidavit as to her history of depression. She confirmed periodically through her marriage there had been difficulties in relation to which she had experienced depression.
54 Since swearing her earlier affidavit, the plaintiff had been reminded that she had suffered from other periods of depression including after the birth of her son and also during her pregnancy. The plaintiff had taken a few overdoses related to her depression.
55 The plaintiff deposed the failure to mention the extent of her previous depression was not intentional and she believed it was really related to her current depression, as she is usually quite forgetful, agitated and confused by detail.
56 The plaintiff was cross examined about the difference between her description of her history of depression in her two affidavits.
57 The plaintiff confirmed that she had post natal depression after the birth of her son. In about 1991, the plaintiff took an overdose and she was hospitalised for about a month. She was prescribed anti-depressant medication for a short time but stopped taking that medication when she was advised she was pregnant. The plaintiff then requested an abortion following which, this issue was never talked about again. It never again came into her life and she blanked it out completely.
58 The plaintiff denied, as the Monash Medical Centre records set out, that she had had four overdoses by the time she was admitted there in 1991. The plaintiff agreed she was having problems with her children at that time and her husband was turning them against her.
59 The plaintiff could have taken two overdoses in her life. The plaintiff thought she took Mobic in 2006 after the injury to her neck, and the other overdose was after the birth of her son. The plaintiff was generally confused as to the number of overdoses she had taken.
60 The plaintiff was asked about what appeared to be an overdose after the birth of her second daughter as Dr Epstein described. The plaintiff agreed at that time she took a number of tablets to get her husband’s attention but she was not trying to kill herself, and it was not an overdose.
61 Around the time of her admission to Monash, the plaintiff was in an extra marital relationship with a married man for about a month and then returned to her husband. She denied this extra marital relationship lasted for five years as Dr Shvetsov recorded.
62 The plaintiff denied that she told Dr Douglas she did not have any past history of psychiatric illness.
63 The plaintiff denied, as Dr Jackson reported in 2010, that she saw a psychiatrist in Mauritius. The plaintiff maintained she told Dr Jackson about the Mobic episode but he was not interested.
64 The plaintiff agreed her ex husband gambled a lot. She also agreed that she told Dr Shvetsov that apart from that issue and a short untreated episode of depression, she had not had significant problems with her mental health prior to hurting herself at work.
65 The plaintiff confirmed from the time her marriage was over she had been “very clear” and had no suicidal thoughts or depression, and she was “very, very clear, absolutely clear.” She and her husband divorced in 2001 but for the two years before that, the marriage was already over. She had “finished with him and he was no longer her problem.”
66 The plaintiff agreed she saw Dr Phan on 7 November 1991 about family problems and she reported being under a lot of stress. She could not recall having a headache and being under stress on 2 October 1995. She could not remember on 8 October 1996 reporting she was stressed with family problems. She agreed she saw at least two or three counsellors around that time.
67 The plaintiff was asked about entries in her doctor’s notes of stress and home problems on 22 January 1998, stress with her gambler husband in February 1999 and stress on 4 August 1999. All the plaintiff knew was that these problems went away with the divorce and that she and her former husband were still friends.
68 The plaintiff denied of complaining of neck pain on 4 April 1998.
69 The plaintiff could vaguely recall seeing a counsellor called Maureen Grant in July 1998, but did not know how many times she saw her. The plaintiff denied she saw Ms Grant for anger management and recalled Ms Grant telling her she would have to leave her husband.
70 In cross examination, the plaintiff was asked about other stressors she had experienced since she suffered injury to her neck and left shoulder.
71 Dr Phan noted on 22 May 2006, that the plaintiff reported she was very stressed and had an abusive relationship with a man who drinks. The plaintiff denied her partner was abusive, describing him as very possessive. She denied having attended Dr Phan specifically for counselling. She could not recall seeing him in this regard on 25 May 2006.
72 On 11 October 2007, Dr Shvetsov recorded that that the plaintiff’s boyfriend was physically abusive. The plaintiff denied her boyfriend ever hit her. They were in a relationship for two to three years and then became friends.
73 The plaintiff was prescribed Effexor for menopause and she denied having any time off work for menopause in 2005.
74 The plaintiff confirmed in re examination that she was happy after she had separated from her husband in 1999. She loved her job until the time of her injury and she was an excellent worker. Working was her life and she was able to meet any deadline.
75 The plaintiff’s treater remains Dr Phan and she continues to see Dr Shvetsov. Last year, the plaintiff’s antidepressant medication was increased in strength from 60 to 90 milligrams of Cymbalta a day. That increase followed a two week stay at Pine Lodge in mid 2011 after a period of seven weeks when the plaintiff suffered from heavy depression and was not eating.
76 After her in patient stay, the plaintiff had a dispute with her second daughter when she grew concerned about the plaintiff’s ongoing condition and called the CAT assessment team to the plaintiff’s home.
77 In cross examination, the plaintiff said that concerns with her second daughter stealing from her followed the admission to Pine Lodge. The plaintiff’s daughter put a restraining order on her late last year, which is still current. It did not upset the plaintiff at all that the intervention order had been taken out. She no longer sees her second daughter.
78 The plaintiff continues to take painkilling medication and also Valium most nights to try and decrease anxiety and help her sleep.
79 The plaintiff continues to have constant pain in her left shoulder and wrist, the left side of her neck and her middle and upper back. She still uses a heat pack in cooler weather to try and assist in alleviating pain. She finds it difficult to sit in a straight and upright position for very long and doing so she gets extensive pain in the middle of her back up into her neck region. This often causes her to sit in a skewed fashion, but even if seated on an angle, and reclined for any extended period, she suffers from substantially increased pain levels.
80 In examination in chief, the plaintiff described how her neck pain is constant and fluctuating. When it is at its worst, it is very bad and she can barely turn her head and her left shoulder becomes swollen. She has to change position so she can look to the right.
81 The plaintiff did not think she could work with that level of pain because she could not do things. Further, the pain also stopped her from concentrating.
82 The plaintiff’s left shoulder pain is there all the time but it can flare up and when it does, it is very severe and she has to lie down. The plaintiff would not be able to work because she can barely lift anything with her left arm and she does not use her left arm at all.
83 The plaintiff deposed that she still feels as though she has decreased range of movement in the left shoulder. The range of movement in her neck feels similarly limited and her neck gets very sore while sleeping.
84 In cross examination, the plaintiff was asked about her unusual posture. She explained whilst giving evidence, she was sitting on her right buttock because of her mid back pain which went up to her neck and left shoulder. She has to sit on an angle, sitting only on her right side or she has to lie down completely because of the pressure on her left side.
85 The plaintiff explained that she cradles her left arm because of the pain. Her shoulder tends to droop and it causes her more pain, so she supports her left arm. This has been the case since the May 2007 surgery.
86 The plaintiff denied having looked up complex regional pain syndrome (CRPS) on the internet. She had told people her left arm and hand were colder and this was still the case. The coldness was there before the May 2007 surgery. It goes up her forearm and she has told doctors about it. the plaintiff gets so frustrated by her arm pain and weakness. She would rather her arm had been damaged in another way such that it would have been amputated She would prefer phantom pain to the pain she experienced.
87 The plaintiff now very rarely has pain in her upper chest. She agreed she had had some problems under her left foot for a short time.
88 The plaintiff described a line of pain in the middle of her back but not as painful as her neck and left shoulder pain. The plaintiff cannot walk very far or stand for very long because of back pain.
89 The plaintiff denied problems with her right elbow and shoulder. She denied any ongoing problems with her right wrist which she fractured at home in February 2007. She has had left wrist pain going up her forearm about which she had told doctors such as Ms McKenzie. The plaintiff’s wrist tends to cramp and crack. She cannot turn a door knob with her left hand.
90 The plaintiff also confirmed that on recent investigations last year, there was a ganglion found on her left wrist. She has to be careful when she uses her left wrist because she can have a very, very sharp pain.
91 The plaintiff remains restricted and in reality does very little. Her grandson is now five and the plaintiff’s physical and psychological injuries prevent her from doing very much with him at all. The plaintiff would love to kick a soccer ball around with him but she cannot.
92 The plaintiff still lives by herself most of the time and she gets help with domestic chores from her friend and a cousin.
93 Most of the day, the plaintiff is housebound doing very little at all. She watches a lot of television and sometimes plays a little solitaire on her laptop with her right wrist whilst resting in bed.
94 The plaintiff’s mood remains very depressed and she is prone to getting anxious, agitated and confused. Her ability to concentrate is very poor and her memory is poor.
95 In examination in chief, the plaintiff described how psychologically she does not see herself as having a life. She confirmed the two weeks’ hospitalisation at Pine Lodge last year when she stopped eating and she would just lie in bed. She had not been eating for a long, long time. She was not hungry at all and lost about seven kilograms. She now just eats a tiny amount of food.
96 The plaintiff confirmed her memory is very, very poor. Psychologically she cannot see herself working at all. Her main priority used to be work and everywhere she worked, she did so to a commendable standard. She missed the workforce, it was her pride and joy and her life. Everywhere she worked, people recognised her as being very hardworking. She loved her job very, very much.
97 In cross examination, the plaintiff agreed that she was pretty good with a computer but she now cannot use a laptop like a normal person. She could not do her old job because she could not sit and type. She could not sit in the normal position because of the pain in her left shoulder, left hand and back.
98 The plaintiff agreed she was skilled in her field but she now could not do that sort of work because of her injury. She would have problems working as a clerk or in any other job. If her pain could be removed, she would gladly go to work in a computer job in an access management role where she could earn $70,000.
99 The plaintiff could not do simple clerical work which required use of two hands. She might be able to do a task for half an hour but then she would have to change position and the pain would start flaring up and she would have to stand to try to lessen it.
100 The plaintiff could not do a job dealing with the public because she has no patience with customers. She would not be a “nice” receptionist and could not work at a help desk.
101 As the plaintiff’s memory is no good anymore and she forgets things, she would go crazy with the demands of being a receptionist. If she was given a task with multiple parts, she would think, “Like, oh my God, my world is falling apart and everything.”
102 In cross examination, the plaintiff said she had not closed her eyes at all the night before the hearing. She used to sleep very well but now does not get a good standard of sleep. Most of the time her sleep is very interrupted and she has to get up and walk around in the middle of the night.
103 The plaintiff does not take sleeping tablets as such, but she takes Valium for her anxiety and also the painkillers which help her to go to sleep. She does not take Valium every night because she does not want to become addicted.
104 The plaintiff remains in receipt of weekly payments.
DETAILS OF THE PLAINTIFF’S EARNINGS
Financial Year
Taxable Income
2002 - 2003
$60,482.00
2003 - 2004
$58,854.00
2004 - 2005
$53,150.00
2005 - 2006
$53,084.00
2006 - 2007
$52,980.00
2007 - 2008
$54,953.00
2008 - 2009
$41,158.00
2009 - 2010
$43,054.00
Plaintiff’s Medical Evidence
105 The plaintiff was first examined by Dr Horsley on 4 September 2006 at the defendant’s request. At that time, the plaintiff presented with discomfort in the cervical spine and left shoulder girdle. A differential diagnosis was made of “? cervical discal pathology and ? left shoulder pathology.” Further investigations were suggested and carried out.
106 When she reported in October 2006, Dr Horsley was uncertain of the exact causation of the plaintiff’s presenting symptoms and whether they could be work related.
107 Dr Horsley wrote to Dr Phan on 27 January 2007 thanking him for arranging the plaintiff’s return to work. She noted the plaintiff returned to work early but there was no occupational health nurse booked so she was sent home. The plaintiff returned to work on 15 January, but only worked for an hour and a half and went home, although it was planned that she would work for four hours per day.
108 Dr Horsley noted the plaintiff had become emotionally fragile after the station suicide. The plaintiff had attended a psychologist on 25 January. The plaintiff rang Dr Horsley a couple of days later and said she was not coming to see her as she was in pain and tears. Dr Horsley reported suitable duties remained available at that stage.
109 Mr Xenos, neurosurgeon, wrote to Dr Phan in October 2006, having recently seen the plaintiff.
110 Mr Xenos advised the plaintiff’s presentation was somewhat odd and atypical. Most of her complaints were of neck pain, interscapular pain and left shoulder soreness, as well as some tenderness in the left chest wall. He noted that paraesthesia in the plaintiff’s left arm did not follow any particular dermatome.
111 Mr Xenos advised he had a feeling the plaintiff’s posture at work and the prolonged hours in front of the computer may be contributing to her problem of left shoulder bursitis, but he thought the problem was muscular more than anything else.
112 Mr Xenos noted there was a good range of neck movement but with some muscular tenderness in that area, as well as the shoulder and chest wall. There was no weakness in the left arm and reflexes were present. Sensation to light touch was normal.
113 Mr Xenos noted the CT of the cervical spine showed only minor degenerative changes. He was not convinced of any significant disc prolapse and he thought an MRI was appropriate.
114 On 25 October 2006, the plaintiff re-attended following the MRI, which Mr Xenos noted was essentially normal. Mr Xenos reported that this finding correlated well with the fact the plaintiff had not convinced him of any true brachialgia down the left arm or any focal signs on examination.
115 Mr Xenos advised the plaintiff’s biggest complaint was still one of non specific neck and shoulder pain and some radiation into the interscapular area, as well as in the left anterior chest wall. He noted it was interesting the plaintiff was seeing an orthopaedic surgeon with plans for a hydrodilatation of her shoulder.
116 Mr Xenos advised he forewarned the plaintiff she had some mild cervical spondylosis and thus would continue to have some problems with her neck and shoulder.
117 Mr Xenos wrote to Dr Phan in February 2009, having recently reviewed the plaintiff. He advised that she presented with chronic neck pain and some radiation to the left shoulder and what he thought was her worst pain being in the interscapular area on the left, which he thought was muscular. He considered it was a typical tension pain associated with muscle spasm.
118 On examination, the plaintiff had a good range of neck movement. There was a lot of soft tissue tenderness in the left trapezius and anterior region, as well as the left shoulder. Neurological examination was normal. Mr Xenos did not think, for reasons mentioned, that there was justification for a repeat MRI. Rather, he thought it would be more prudent for Dr Phan to consider referring the plaintiff to a rheumatologist.
119 Mr Xenos advised there were features of fibromyalgia and chronic pain syndrome established on the back end of cervical spondylosis to only a mild degree with no associated nerve root compression symptoms or signs to justify his involvement. He thought the plaintiff also had issues of degeneration of the left shoulder which obviously had been helped with treatment.
120 Mr Li, orthopaedic surgeon, wrote to Dr Phan in October 2006, thanking him for the referral of the plaintiff who had left shoulder pain and stiffness due to adhesive capsulitis.
121 On initial examination, there was no wasting about the shoulder musculature. There were no signs of impingement. The rotator cuff was intact. The neck examination was normal and there was no abnormal neurology affecting the left upper limb.
122 Mr Li noted the ultrasound of the shoulder was in keeping with adhesive capsulitis and no rotator cuff tear was seen. Investigations of the neck demonstrated minor degenerative changes at C3/4 and C4/5.
123 Mr Li advised the plaintiff had left shoulder adhesive capsulitis secondary to cervical spondylosis. He noted the natural history of that condition was spontaneous resolution, but it may take twelve to eighteen months. He thought he could speed up the natural history with intervention in the form of hydrodilatation of the shoulder followed by intensive physiotherapy.
124 Mr Li reported that that procedure provided the plaintiff with mild relief of pain and good improvement in motion. Subsequent MRI confirmed the plaintiff had left shoulder impingement with subacromial bursitis but no rotator cuff tear. The plaintiff had injections with minimal relief and her pain persisted as of April 2007 and, as such, he recommended surgery in the form of a left shoulder arthroscopic subacromial decompression and rotator cuff debridement and requested funding for surgery at that time.
125 When surgery was performed on 16 May 2007, findings were of a partial thickness rotator cuff tear which was debrided and the remainder of the glenohumeral joint, including the long head of biceps and labrum were intact. At left subacromial bursoscopy, there was marked bursitis and bursectomy was performed. There was a large subacromial spur and the subacromial space was decompressed with acromioplasty. The rotator cuff was debrided further on the bursal side (“the surgery”).
126 Mr Li then thought the likely duration of incapacity following the surgery would be in the order of two to three weeks, and once the plaintiff had regained motion and strength, it would be reasonable for her to return to light duties in approximately three to four weeks and pre injury duties at six to eight weeks.
127 On examination seven weeks after the surgery, the plaintiff still complained of pain and weakness of the left shoulder. Mr Li suggested further physiotherapy and, at that stage, no future surgery was contemplated. He considered further treatment would be based on treatment of the plaintiff’s pain and would involve simple analgesia and anti-inflammatory medications and possibly a steroid injection.
128 When he first reported in October 2006, Dr Phan thought long hours working at a computer contributed to the plaintiff’s condition, being soft tissue strain in her neck and shoulder, which had aggravated the symptoms of cervical spondylosis and cervical disc bulge.
129 Dr Phan anticipated that if the plaintiff continued to improve with physiotherapy, then she would be able to resume modified duties in a week, and it was quite probable she would be able to return to her pre-injury duties.
130 Dr Phan’s report of 3 November 2007 was less optimistic with him reporting the plaintiff’s prognosis with respect to the chronic neck pain, as well as regional pain syndrome, was poor, with her not having responded to several modalities of treatment. The pain was the main barrier to the plaintiff returning to work and was also contributing to her depressed state of mind.
131 In September 2008, Dr Phan reported, in addition to her physical problems and incapacity for work, there was also some psychological overlay affecting the plaintiff’s recovery and pain. He noted she had previously suffered with depression and this injury, which had rendered her unable to work, had certainly exacerbated her depression.
132 In his report of 4 May 2010, in terms of clinical signs, Dr Phan noted that the plaintiff’s left hand was mildly swollen and cool to touch. The plaintiff had told him that she felt the Epworth program was worsening her pain and that she could manage her pain better than anyone else could. Further, she had had a falling out with staff and never returned to Epworth for treatment.
133 At that stage, Dr Phan thought the plaintiff’s prognosis was very poor and that it was likely that the chronic pain would dominate her life and mental state. Both physically and cognitively, he thought she did not have the capacity to overcome her injuries and she would not be able to return to the work force even on a part time basis. This view was confirmed in subsequent reports in October and December 2010.
134 Dr Phan most recently reported on 22 February 2012. He then thought the plaintiff did not have the capacity for work as she struggled to deal with both the physical and emotional pain of her injury. He noted she was not able to sit or stand comfortably for more than a few minutes without some support for her neck and shoulder. He thought she was never likely to return to her pre-injury employment and he did not anticipate her injury to sufficiently improve to enable her to perform her pre-injury duties.
135 Dr Phan noted the plaintiff currently took strong painkillers, an anti-depressant and an anxiolytic to cope with her condition. She was in a constant state of pain which prevented her from doing many of her leisure activities, as well as many of her domestic duties. He confirmed having referred the plaintiff for an ultrasound of the left wrist in January 2010.
136 Dr Phan reviewed the plaintiff monthly and sometimes twice a month to monitor her clinical status and determine her ability to work so he could issue WorkCover capacity certificates. During those visits, he offered support and counselling, prescribed medication and referred the plaintiff to a psychiatrist for management of her chronic pain and depression.
137 In examination in chief, Dr Phan confirmed the plaintiff’s initial presentation was with neck and left shoulder pain and he then diagnosed an exacerbation of arthritis or spondylosis in the cervical spine and also a frozen shoulder or adhesive capsulitis.
138 Subsequent to that, the plaintiff had developed a chronic pain syndrome and consequent to her having chronic pain and loss of function, her depression had been exacerbated.
139 Dr Phan confirmed he mentioned the plaintiff’s left hand was mildly swollen and cool to touch in one of his reports and he had observed that situation on several occasions - a clinical sign he thought seemed to be consistent with the plaintiff’s pain syndrome.
140 Dr Phan confirmed the plaintiff cannot work because of her neck, shoulder and psychiatric condition separately. He thought her physical injuries had more or less stabilised. He did not expect improvement and anticipated her condition would be permanent. He thought the plaintiff’s posture at work had significantly contributed to her injuries. He also thought a lot of the plaintiff’s quite severe depression and anxiety was due to the chronic pain she had suffered in loss of employment and function. He did not think she could work under pressure, as she struggled coping with her day to day life and she would not be capable of coping with the added stress of dealing with other workers and the public. He thought it was difficult to separate psychological from physical factors but he thought certainly the plaintiff’s physical symptoms were not going to go away.
141 In cross-examination, Dr Phan confirmed the plaintiff’s psychological and physical conditions had become intertwined and they were impossible to separate in fact.
142 When asked to check his notes for any reference to a clinical finding of temperature difference between the plaintiff’s hands, Dr Phan ultimately agreed that the entries for 23 July 2009 and 23 April 2010 were attendances where the plaintiff made such a report rather than there being such a finding on examination.
143 Dr Phan confirmed his practice’s notes set out complaints by the plaintiff of stress associated with her marriage in 2005 and 2006.
144 Dr Phan confirmed his initial optimism in relation to the plaintiff’s physical condition and the fact that he thought it unlikely there would be any permanent problem.
145 Dr Phan confirmed the investigations leading up to the surgery and that he had made no further referrals after he sent the plaintiff to neurosurgeon, Mr Xenos in February 2009 for her neck problems after she had attended the Epworth program.
146 Dr Phan explained that he was less optimistic when he reported again in November 2007 because it had been fourteen months since he had first seen the plaintiff; attempts had been made to return to work and there had been various treatments and the surgery and they seemed to have failed and there had been very little progress. Despite the absence of any significant radiological finding, Dr Phan accepted that the plaintiff had a lot of pain when trying to return to work.
147 After some discussion as to a diagnosis of CRPS as opposed to chronic pain syndrome, Dr Phan appeared to adopt the latter diagnosis. He agreed it was difficult to explain the plaintiff’s pain at times and there was a disproportionate amount of pain in fact, and it was difficult to explain the group of symptoms. He was unsure about the plaintiff’s condition and he was not in a position to make a diagnosis of CRPS.
148 Dr Phan referred the plaintiff to pain management specialist, Dr Pallet, at Epworth because he felt she had quite strong chronic pain and also psychological issues and that maybe a multi disciplinary approach to her management would work, but he noted obviously it did not. The plaintiff was unsuccessful in that course because she was paranoid about the motives of the Epworth program organisers.
149 The ultrasound of the left wrist in 2011 followed intermittent left wrist symptoms for some time, but the result of that investigation was not “mind blowing” and Dr Phan had not suggested any further treatment.
150 Dr Phan confirmed the plaintiff had described problems sleeping and sometimes Valium helped her in this regard. He also confirmed the plaintiff’s immobile presentation, having very limited use of her left arm. He agreed he had not found any wasting of her left arm.
151 Dr Phan helped the plaintiff get a disabled parking permit in March 2009. In that application, he described her condition as arthritic and orthopaedic, with pain in the neck and back causing pain when walking.
152 Dr Phan confirmed his notes of 23 July 2010 set out the plaintiff’s partner had sent her photos of him having sex with other women. On 3 February 2010 he recorded that the plaintiff had problems with her partner and in 2011, he noted the plaintiff’s problems with her second daughter.
153 When re-examined, Dr Pham confirmed that he had observed the cooler temperature of the plaintiff’s left wrist but did not write it down as an examination finding. He confirmed that this finding was consistent with an autonomic dysfunction in the plaintiff’s left hand.
154 Dr Phan confirmed the plaintiff could not work by reason of either her organic or her psychiatric condition.
155 In Dr Phan’s view, findings at the surgery demonstrated a physical injury to the plaintiff’s shoulder that was missed on scans and could lead to the shoulder being frozen and the development of a pain syndrome or condition.
156 Dr Phan agreed that up until May 2006, the plaintiff had issues with her boyfriend that he recalled but there were not any other stressors or significant bouts of depression or anything during that time.
157 The main focus of the plaintiff’s complaints disturbing her moods and how she felt about her life had mainly been her work injuries, her chronic pain and the whole process of dealing with WorkCover.
158 Dr Bruce Mitchell reported to Dr Phan on 13 February 2007, thanking him for referring the plaintiff. Dr Mitchell noted the plaintiff presented with two years of left chest and arm pain and twelve months of left neck pain which she rated at six to seven out of ten.
159 On examination, there was no evidence of any radiculopathy. The plaintiff was tender over her posterior column and she had restricted left lateral flexion and rotation.
160 Dr Mitchell reported that the MRI showed some disc bulges at C3/4 and C4/5 of dubious significance.
161 Dr Mitchell advised he agreed there was a strong chance the plaintiff’s pain was coming from her cervical spine, especially her posterior column, and he was writing to WorkCover for permission to do posterior column blocks to formally diagnose that. If positive, he advised the plaintiff would be a good candidate for radio frequency neurotomy.
162 Mr Cocking, physiotherapist from Endeavour Hills Physiotherapy, reported to QBE in May 2007. He advised that the plaintiff had a complex cervical and shoulder condition and now ongoing depression related to return to work issues which made her rehabilitation and return to work a challenging case. He thought the plaintiff’s condition was seventy per cent cervical and thirty per cent related to her shoulder. He thought she would continue to improve with physiotherapy treatment to her neck and shoulder.
163 Mr Cocking reported that he understood, from a clinical justification point of view, the insurer needed to see the plaintiff’s condition improving with treatment or deteriorating without it to satisfy current physiotherapy management guidelines. Consequently, he thought it difficult to determine what was the best course of management to pursue for the plaintiff prior to surgery. He thought, once recovered after surgery, the plaintiff would then progress to a graduated return to work and, with a supportive work environment, she would be able to minimise her cervical symptoms and return to pre injury duties.
Psychiatric
164 Dr Jeffrey Hogan, psychiatrist, reported to Dr Phan in March 2007 thanking him for referring the plaintiff.
165 The plaintiff told Dr Hogan of long hours at work and the onset of physical problems. She said she was being referred now she was very paranoid and had suicidal thoughts. The plaintiff told Dr Hogan of problems on her return to work with moving a heavy trolley, the station suicide and the appointment with Dr Horsley.
166 The plaintiff advised she was very scared driving and felt people were following her. She described depressed mood, loss of appetite and significant weight loss, lack of energy, social withdrawal, impaired concentration and memory and some decline of libido. There was not current suicidal ideation but the plaintiff reported having significant suicidal thoughts some weeks ago.
167 Dr Hogan noted the plaintiff had post natal depression after her eighteen year old son, which went on for some years. Further, fifteen years ago, she had taken a planned overdose and had been hospitalised for two days.
168 The plaintiff told Dr Hogan she was scared because of that overdose about being prescribed an anti-depressant. She said she had seen a psychologist who appeared to be working in the defendant’s interest and not her own and she really distrusted her.
169 Dr Hogan advised Dr Phan he would see the plaintiff for review and supportive counselling. Diagnostically he thought she had a major depression with psychotic features which had developed as a consequence of the work injury.
170 Dr Hogan reported to the Conciliation Service in April 2007 setting out details of attendances until that date. He noted in that report there had been some recent difficulties with the plaintiff’s daughter and the plaintiff had also fractured her wrist.
171 Dr Hogan reported that on mental state examination, there was no indication of cognitive impairment or perceptual abnormalities. There was a theme of considerable distrust of others together with ideas the plaintiff was being followed.
172 Dr Hogan noted the plaintiff presented after the development of a chronic pain syndrome attributed to her work activities with features of a major depressive disorder with psychotic features.
173 In his view at that time, the plaintiff’s current level of psychiatric illness was such that she could not pursue any employment and he thought that current major depressive episode was a consequence of employment stresses, particularly the development of a chronic pain syndrome.
174 On 8 August 2008, Dr Shvetsov wrote to QBE requesting an urgent admission for the plaintiff. He advised the plaintiff was then suffering severe depression and was suicidal and he needed to change her medication which he thought was best done under close clinical supervision.
175 A week later, Dr Shvetsov advised QBE that the plaintiff did not take up the offer of hospitalisation but her symptoms persisted and he requested assistance by providing her with twelve group therapy sessions.
176 Dr Shvetsov reported that after the plaintiff’s attempt to return to work in early 2007 was unsuccessful, she developed a depressive illness soon after.
177 On her first presentation in August 2007, the plaintiff reported depressed mood, irritability and difficulty controlling her anger. She had problems with concentration and reported being forgetful. Her sleep pattern was then normal. She stated she had been experiencing suicidal thoughts.
178 The plaintiff told Dr Shvetsov she believed her first depressive symptoms developed in about 2006. She reported her mood was depressed most of the time and she had frequent mood swings. Due to chronic pain, she suffered from insomnia. She had difficulty concentrating and was very forgetful. She told him of comfort eating and compulsive checking of doors.
179 Dr Shvetsov believed the main contributing factors to the plaintiff’s depression were inability to return to work that had always been a significant part of her life, financial uncertainty and chronic pain.
180 Dr Shvetsov reported that the plaintiff’s attendance and her medication intake had been irregular. While he was looking after her, she had trials on Zoloft 200 milligrams and Cymbalta 60. There were periods of improvement in her mental status which would normally be associated with her regular medication intake. However, at times she would stop taking antidepressants as she perceived it as some sort of psychological weakness.
181 Dr Shvetsov reported the plaintiff had a major crisis in July 2011 when her mood significantly deteriorated, she was hardly eating, socially isolating herself, stopped taking medication and contemplated ending her life, demonstrating all signs of a major depressive episode at that time.
182 That condition required two weeks of hospital admission to bring the plaintiff’s mental state to a balance. She had outreach nursing follow up the next few weeks and continued taking medications regularly.
183 The plaintiff is presently taking 90 milligrams of Cymbalta and she sees Dr Shvetsov fortnightly.
184 Dr Shvetsov reported chronic pain and weakness in the plaintiff’s left shoulder significantly impacted on her daily activity. The plaintiff believed her personality had changed, having previously been a very social person. Being in public generated a lot of anxiety. Dr Shvetsov considered the majority of the plaintiff’s current stresses related to her physical condition and uncertainty about her future, due to insignificant improvement in her physical status.
185 The plaintiff told Dr Shvetsov she believed she had a depressive episode eighteen years ago due to her husband’s gambling and after one episode, she overdosed on tablets and was taken to Emergency with no follow up treatment and spontaneous improvement soon thereafter. She also told Dr Shvetsov that her father was a gambler.
186 On mental state examination on 12 January 2012, the plaintiff was cooperative but visibly anxious and at times teary when the subject of the interview related to her injury and related issues. She was alert and able to focus on the interview. She described her mood as low and her affect was labile, but reactive and appropriate to the interview. Speech was sufficient in amount with adequate articulation and stream of thought was slightly accelerated due to anxiety. There was no evidence of cognitive distortion or delusional beliefs.
187 Dr Shvetsov thought the plaintiff’s presentation was consistent with the diagnosis of chronic adjustment disorder with depressed mood and anxiety and fulfilled all the criteria for that diagnosis. He thought she had developed depressive symptoms soon after the injury which were causally related to that injury that produced chronic pain and movement restrictions. Dr Shvetsov noted the plaintiff’s six months previous major depressive episode had been resolved but all the signs of chronic adjustment disorder related to the shoulder injuries were still present.
188 Dr Shvetsov concluded there was a definite link between the plaintiff’s physical injury and her current mental status with depression manifesting itself soon after the injury and the content of her depressive symptoms directly related thereto. He thought the plaintiff required close monitoring of her mental status, adequate medication, antidepressant medication regime and psychological support.
189 Dr Shvetsov thought there were two issues that impacted on the plaintiff’s capacity for work including the shoulder injury that imposed physical restrictions and depression affecting her mental health.
190 Most prominent in terms of the plaintiff’s mental health restrictions Dr Shvetsov considered would be very poor concentration and forgetfulness, low level of energy and motivation. He noted the clinical picture demonstrated even minor stresses resulted in significant crises and at times required hospital admission.
191 Dr Shvetsov noted the plaintiff was not presently employed and he thought her coping mechanisms were sufficient to deal with the demands of everyday life. However, he doubted she would be able to cope with part time or full time employment. With her current level of symptomatology, he thought the plaintiff was unlikely to be fit for pre injury or any alternative duties. In view that her cognitive abilities (concentration and memory) being affected, he considered the plaintiff would also struggle to learn new skills.
192 Dr Shvetsov thought the depressive illness was secondary to the plaintiff’s physical condition and progress in her mental state was to a great extent dependant on the progress in her physical condition. In that both those conditions had not changed significantly over the last five years, he thought her prognosis would be rather guarded.
193 In examination in chief, Dr Shvetsov confirmed the plaintiff was suicidal last year and he admitted her to Dandenong Hospital, after having tried to treat her as an out patient. The plaintiff’s condition at the time of admission was a major depressive disorder. Dr Shvetsov emphasised there was not a trigger to this incident and there was just a slow gradual deterioration. He increased the plaintiff’s dosage of Cymbalta at that time.
194 Dr Shvetsov now thought the plaintiff suffered form a chronic adjustment disorder, which was probably evident from the injury over the last five years.
195 In Dr Shvetsov’s view, the plaintiff was not even fit for part time work. He noted that she was very isolated socially and that was out of character. She felt very embarrassed about her injury and she did not want to talk to people about it. Most of the time she was on her own and did not go out. She was not eating properly. He suggested pain management to help the plaintiff with her functioning.
196 Dr Shvetsov thought if the plaintiff was under any particular stressors at work, it was mostly likely she would relapse. Just the fact of going to work would be a problem. He also would be very concerned if the plaintiff started deteriorating again as she could overdose and kill herself.
197 Dr Shvetsov thought the plaintiff’s mental condition was secondary to her physical state and if that improved, her mental state would also do so. The plaintiff was vulnerable and she was not functioning well. Just going back to work could be a trigger for a relapse. He thought it was very unlikely, given the plaintiff’s present condition and how she had been that she would be able to return to work, even on a gradual basis. He was pessimistic about her prognosis.
198 Dr Shvetsov noted that before the injury at work, the plaintiff had been functioning well, enjoyed what she was doing and was earning good money. She was not being treated by a psychiatrist or taking any medication; there was not any mental condition in the background when the injury happened. After the injury, the plaintiff had a depressive illness and her thinking became predominantly about her pain and her inability to function and her embarrassment about being injured and unable to work. She became socially isolated.
199 Dr Shvetsov thought there was an obvious link between the injury and the development of the plaintiff’s chronic adjustment disorder and her chronic depression.
200 In cross examination when it was put Dr Shvetsov that the plaintiff was in an abusive relationship in 2007, he said the plaintiff mentioned this issue but it was not really dramatic back then. He described the plaintiff as a person who was able to stand up for herself. She would not have allowed that behaviour to have continued and she did not live with her partner.
201 Dr Shvetsov confirmed he had recorded on 11 October and 22 November 2007 that the plaintiff’s boyfriend was physically abusive and that these entries were typical of the plaintiff’s reports. He also agreed he had recorded that the plaintiff’s affair with a married man had lasted for five years.
202 Dr Shvetsov explained that the plaintiff’s depression meant she was pre-occupied with people following her so he was not surprised about her comments about being under surveillance.
203 The plaintiff just stopped seeing Dr Shvetsov in July 2009. This could have been because she did not like his receptionist. He then agreed it could be correct the plaintiff resumed treatment because her WorkCover payments had been terminated.
204 Dr Shvetsov confirmed that the plaintiff reported family problems and problems with her daughter after her injury. He described the plaintiff’s relationship with her daughter as a very complex issue.
205 Issues about money developed with the plaintiff’s daughter after the plaintiff was hospitalised last year. Further, the plaintiff’s daughter had said the plaintiff was trying to kill her. That allegation was investigated by the CAT team and came to nothing.
206 Dr Shvetsov confirmed that the plaintiff gave him the psychiatric history he noted in his reports.
207 When given a more comprehensive history based on the Monash Medical Centre file, Dr Shvetsov disagreed that was a different picture than had been given to him. He had taken into account a psychiatrist had not been involved, and the plaintiff had not been on antidepressants. In his view, the plaintiff could go to her general practitioner and complain about stressors which probably the majority of people would do. He did not consider the extra information showed the plaintiff had a major psychiatric problem. He explained that stress was not a psychiatric diagnosis but it showed the plaintiff was a person with a vulnerability.
208 Dr Shvetsov confirmed he successfully treated the plaintiff’s major depression and the current diagnosis was an adjustment disorder, a contributor to which was her left shoulder injury and its associated problems.
209 Dr Shvetsov explained that he thought a pain disorder was when a person was experiencing chronic pain without existing significant physical injury. If the plaintiff’s shoulder was not a serious physical injury and the pathology was quite minor, Dr Shvetsov agreed her condition would be explicable on the basis of a pain disorder which he described as consistent with really minor injury and exaggerated psychological response to it. He was not familiar with the categories of chronic pain syndrome under DSM-IV.
210 Dr Shvetsov confirmed the plaintiff’s sleeping depended on her level of pain. He also confirmed the plaintiff’s normal weight was about seventy kilograms and she now weighs about sixty four kilograms.
Medico Legal
211 Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff on behalf of QBE on 4 January 2008.
212 The plaintiff then complained of constant left shoulder and neck pain. On examination, there was restriction of cervical and left shoulder movement.
213 Mr Moran diagnosed left shoulder impingement with secondary adhesive capsulitis based on Mr Li’s report.
214 Mr Moran thought the plaintiff had aggravated degenerative disease of the cervical spine, confirmed after reviewing the MRI of 13 October 2006. In his view, there was no neurological dysfunction.
215 Dr Blombery, consultant physician in vascular disease, first examined the plaintiff in August 2011.
216 On that occasion, the plaintiff complained of thoracic, neck and left shoulder girdle pain present all the time. Her left arm became cold and went blue but there was no excessive sweating or numbness in the left hand. There was some stabbing pain occasionally in the left wrist. The plaintiff explained she had adapted her posture. She also told Dr Blombery that she had become quite depressed and was hospitalised at Pine Lodge.
217 On examination, the plaintiff sat sloping slightly to the right. She was quite tender around the left trapezius and over the shoulder generally and there was some spasm in that muscle. She was exquisitely tender down the left side of the thoracic spine medial to the scapular. There was some reduction of abduction and flexion of the left shoulder and full movement of the left elbow and wrist. Grip strength was four kilograms on the left and twenty two on the right. There was some restriction in neck movement. The left hand was blue compared to the right, and both the forearm and hand were two and a half degrees cooler than the right.
218 Dr Blombery thought the diffuse nature of the plaintiff’s pain suggested she had a myofascial pain syndrome in the affected areas. He thought she had quite prominent autonomic disturbance in the left hand indicating that she also had a component of CRPS Type 1. He considered the plaintiff might benefit from a technique such as an intravenous lignocaine ketamine infusion, but there was only a fifty per cent likelihood of that being effective.
219 Dr Blombery noted the history of depression, which probably tended to enhance the plaintiff’s experience of pain to some degree, but he thought all her pain was essentially organic in nature. He diagnosed CRPS Type 1 and Myofascial Pain Syndrome, complicating injuries to the left shoulder.
220 Dr Blombery considered the plaintiff had no capacity for work because of the severity of her injuries. In his view, employment was a significant contributing factor to her injuries. He thought given the long term duration of her pain and the poor prognosis, the plaintiff would not be able to return to her previous employment in the future.
221 Dr Blombery re-examined the plaintiff on 9 February 2011 at which time she told him there had been no change in her condition.
222 On examination, the plaintiff’s left hand was half a degree cooler than the right and the left forearm was two degrees cooler than the right. There was tenderness in the left hand, upper left forearm, left upper arm and also around the left olecranon. The left shoulder was generally tender. There was some reduction of abduction and rotation but otherwise movements were full. There was full movement of the left elbow. Grip strength was four kilograms on the left versus eighteen on the right. The plaintiff was tender over the thoracic spine and also tender to the left scapular and around the area.
223 Dr Blombery confirmed his earlier diagnosis and views on causation. He noted the plaintiff needed ongoing treatment of a secondary depression which he thought was tending to enhance her experience of pain. He also thought she needed ongoing overall pain management and may benefit from a technique such as the infusion. He concluded the plaintiff would not be able to return to her previous employment or suitable employment given the severity of ongoing pain.
224 In examination in chief, Dr Blombery explained the two and a half degrees cooler left forearm was a very significant finding as normally the two hands or forearms were up to half a degree different in temperature. He measured the temperature using an infrared thermometer, pointing it at the plaintiff’s hand. Dr Blombery measured hand grip with a Jamar dynamometer, getting the plaintiff to squeeze as hard as she could.
225 The fact the hand was blue was a marker for there being a different level of activity of the sympathetic nervous system affecting the left arm compared to the right, indicating there was blood vessel constriction and dilation occurring.
226 Dr Blombery explained that a pain syndrome rather than CRPS tended to be more of a non specific pain syndrome; non specific in relation to the pain nerve pathways. He thought from a legal point of view that a chronic pain syndrome was viewed possibly as sort of a psychological disorder, but he disagreed. He confirmed the changes he had noted on examination were suggestive of an organic condition.
227 Dr Blombery thought the CRPS Type 1 had been precipitated by the plaintiff’s physical injury. As the condition had been going on for a long time, he considered that there was no likelihood of improvement, and after two years it was very difficult to reverse. He thought the plaintiff’s prognosis was extremely poor.
228 Dr Blombery thought the plaintiff would not be able to use her left hand in a sedentary job. Further, taking fairly potent painkillers would impair her concentration. He considered that a worker with the plaintiff’s condition should avoid doing any kind of repetitive tasks or significant tasks using the right arm because of a concern about a similar problem developing in that arm. Therefore Dr Blombery thought the plaintiff’s condition was extraordinarily limiting in terms of the practical world.
229 In cross examination, Dr Blombery agreed that the grip strength test was a subjective one. He agreed that there could be a ten to twenty per cent variation in findings from day to day.
230 Dr Blombery agreed he did not find any wasting of the left arm or shoulder on examination but noted the plaintiff was able to move her shoulder quite well to one hundred and twenty degrees, and there was a full range of left elbow and wrist movement, so she was not immobilising it.
231 Dr Blombery confirmed he found CRPS Type 1 and a myofascial pain syndrome. The former affected the whole of the plaintiff’s left arm, affecting a fairly diffuse area. He confirmed that he also found coldness of the left forearm, and explained that in sufferers of the syndrome, the disorder tended to be more marked at the extremity. The injury to the neck caused the reaction to occur in the pain nervous systems supplying the plaintiff’s left arm.
232 Dr Blombery initially said it could take from two to three weeks up to several months after the injury, before CRPS manifested itself, and the syndrome could be initiated by something as minor as a tap. He would generally expect to see signs of the syndrome within weeks or months of injury. Other signs of the syndrome were local tenderness and pain and sensory signs, and there might be swelling or sweating, and in very rare cases hair and nail growth.
233 There could also be a manifestation of the syndrome where the injury was ongoing, which could then precipitate the CRPS Type 1 further down the path. The cause of the plaintiff’s complaints of pain before that did occur was covered by the myofascial pain syndrome diagnosis. Dr Blombery agreed the two conditions were interrelated. In a myofascial pain syndrome a person complains of pain in the affected limb in the muscles, where there is localised tenderness and often there may be trigger points of pain, but there is no evidence of autonomic disturbance. Dr Blombery guessed that diagnosis encompassed what people call overuse type injury. In such cases, there was nothing to find on examination apart from local tenderness and perhaps a reduction in the range of movements.
234 When it was put to Dr Blombery that other examiners had not found signs of CRPS 1, Dr Blombery said that was not unusual, particularly as he was attuned for looking at those changes in patients because of his particular expertise.
235 CRPS typically fluctuated from time to time, and that was how Dr Blombery explained there could be different findings. Lack of any signs on some examinations was absolutely the pattern you would expect in such a fluctuating condition.
236 In the majority of patients Dr Blombery examines twice, there is often no change in temperature on the second examination. He agreed a patient could induce colour or temperature change by holding their hand inert.
237 The plaintiff’s CRPS Type 1 was confined to the left upper limb. By definition the plaintiff could not really have CRPS in the thoracic spine or neck.
238 Dr Blombery confirmed that there were no particularly significant findings on the MRI of the cervical spine. He did not expect any neck problems would cause a patient to sit at a strange angle or affect their ability to walk. In his view, those manifestations were a reaction to the plaintiff’s pain generally – a cerebral reaction.
239 Dr Blombery disagreed that myofascial pain meant a psychologically based condition, but agreed myofascial pain was very similar to fibromyalgia. He diagnosed myofascial pain syndrome on the basis of the plaintiff’s history and the fact that she had local or generalised tenderness in the affected areas. With those complaints, he thought there also could be a diagnosis of fibromyalgia, and in some patients it “might be sort of psychologically based.” There was no specific test to exclude non organic factors. It was a matter of seeing how the patient presented.
240 Dr Blombery thought it was very difficult to say how CRPS Type 1 and myofascial pain syndrome caused an inability to work, agreeing that they were both intertwined, and that the plaintiff’s inability to work was a combination of her wrist, hand, shoulder, neck and thoracic problem, precluding her from returning to clerical work. He agreed all these conditions contributed in a significant way to the plaintiff’s incapacity to enjoy life and undertake activities of daily living.
241 Mr Mangos, general surgeon, examined the plaintiff in January 2012.
242 The plaintiff complained to him of a good deal of pain in the left side of her neck and upper body and her left shoulder was always painful. She had a painful left wrist and she had become depressed.
243 On examination, the plaintiff walked slowly and carefully. Alignment of the cervical spine was normal and the plaintiff was tender posteriorly on the left side of the neck. There was restriction of cervical movement.
244 The right shoulder moved through a full painless range of movement, the left was very restricted. There was some tenderness over the olecranon. Elbow and wrist movements were normal.
245 Grip on the right was fifteen kilograms and five on the left. There was no neurological or muscular deficit noted in either upper limb. There was some limitation of spinal movement and alignment was normal. There was no abnormality in the lower limb.
246 Mr Mangos noted the ultrasound of the shoulder dated 21 September 2006 and the MRI of the cervical spine of October that year.
247 Mr Mangos thought the plaintiff was suffering from the use of her arms, particularly the left, by performing rapid and repetitive work with constant keyboard use being the crux of her problem.
248 Mr Mangos considered the plaintiff’s injuries had mainly stabilised. In his view, she was not capable of returning to any regular work and she was totally and permanently incapacitated.
249 Mr Mangos diagnosed an aggravated cervical spondylosis, generalised overuse syndrome involving the neck and left arm, probable RSD of the left arm, left shoulder tendonitis and capsulitis, a wrist tendonitis, and anxiety with depression. He also noted Dr Blombery’s diagnosis.
250 By the plaintiff’s description of work up to nine hours a day, Mr Mangos thought there was little doubt the injury was caused and materially contributed to by the nature of her work. He thought, as a consequence of her injury, the plaintiff had been totally and permanently incapacitated since January 2007 and she no longer had a capacity for regular work. He suggested ongoing conservative treatment and in his view the plaintiff would never be able to return to her previous work.
Psychiatric
251 The plaintiff was examined by Dr Stern, psychiatrist, on behalf of QBE in February 2008.
252 The plaintiff told him of the injury and subsequent return to work when she thought her supervisors belittled her because of her injuries. She also told Dr Stern of feeling distressed after the station suicide.
253 The plaintiff described being depressed by her pain and she was sometimes tearful and irritable. She told Dr Stern of suicidal thoughts and, in late 2006, taking ten Tramal tablets and having spent the day in hospital. She complained of her sleep being disturbed and that she had lost interest in socialising and had reduced memory and concentration.
254 In terms of history, the plaintiff told Dr Stern her husband was a pathological gambler. She had suffered post natal depression in 1989 and made a suicide attempt by an overdose in 1991. She saw a psychiatrist and was prescribed medication. She then got pregnant and felt she was forced by her doctor to have a termination because of the medication. She was still very angry and depressed about this issue for years thereafter.
255 On mental state examination, the plaintiff’s speech content was pre occupied with pain and feelings of victimisation. Her affect was angry and depressed. There was no evidence of thought disorder, delusions or hallucinations and she described obsessive compulsive symptoms of rechecking and washing of feet every day. Her orientation, memory and concentration were intact. Her intelligence was normal and she had fair insight into her situation.
256 Dr Stern thought the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood related to the work injuries of 2005 and 2006. He noted the plaintiff also felt she was victimised by her supervisor and co workers after her injuries.
257 From a psychiatric aspect alone, Dr Stern thought the plaintiff was fit for work and he considered she needed continuing psychiatric treatment. He thought the plaintiff’s social and leisure activities had been reduced. In his view, her psychiatric state had stabilised.
258 Dr John Douglas, psychiatrist, examined the plaintiff on behalf of QBE in November 2008.
259 The plaintiff told him that on her return to work she was not treated well and she had the perception she was seen as a bludger. She told him of feeling suicidal from time to time.
260 The plaintiff said she was depressed and often cried. She often had no energy. She did not sleep well. Her memory and concentration were poor and she had little interest in food.
261 On examination, the plaintiff was rather disgruntled, angry and depressed. Her talk was responsive, fluid and coherent. There were no disorders of perception such as illusions or hallucinations and the plaintiff was focussed on her loss and sense of entitlement. She was able to focus her attention.
262 On the basis of her presentation to him, Dr Douglas disagreed with Dr Stern’s assessment that from a psychiatric aspect, the plaintiff was fit for work.
263 Noting the plaintiff’s problems with her shoulder and back, Dr Douglas concluded as an adjustment to those, the plaintiff had an adjustment disorder with depressed mood.
264 Dr Douglas thought the plaintiff’s condition had not resolved and that she continued to suffer symptoms of depression. He believed that she did not have a current work capacity, noting symptoms of depression including depressed mood, no sense of pleasure, irritability and sleep disturbance which had not responded to treatment.
265 In his view, under such circumstances, it became more likely than not that those symptoms would persist indefinitely. He believed an admission to a multidisciplinary pain program would be the most useful intervention, noting the plaintiff had been assessed in relation thereto.
399 Dr Jackson could not clearly identify any continuing physical pathology that could be related to the plaintiff’s work. He remained of the view she may have suffered a relapse in the form of a depressive illness that apparently had been accepted as related to her work around 18 October 2006, but he was unclear about it.
400 Dr Jackson again offered the provisional diagnosis of a pain disorder associated with psychological factors and a general medical condition, but whether the continuing physical diagnosis that could be reasonably related to the happenings at work remained unclear. Other than reviewing the purpose and nature of the plaintiff’s ongoing psychiatric treatment, Dr Jackson had no psychiatric treatment suggestions other than an overall review of her medication.
401 Given the plaintiff’s fixed thinking, Dr Jackson thought it was highly unlikely she would accept let alone participate in any rehabilitation or return to work endeavours. He noted, however, from a psychiatric point of view, there was no clear bar to any form of work or rehabilitation including the jobs suggested.
402 Notes from the Monash Medical Centre were tendered relating to an admission in October 1991.
403 Notes were also tendered of attendances at the Hallam Family Practice on 7 November 1991, 28 June and 5 July and 2 October 1995, 8 October 1996, 11 September 1997, 22 January and 4 April 1998 and February, 4 August, 12 August, and 23 September 1999. These attendances related to the plaintiff’s stress due to family and marital problems.
404 It was noted that Effexor was prescribed in April 2005.
405 Dr Phan recorded on 22 May and 25 May 2006 that the plaintiff complained of being in an abusive relationship.
406 Dr Phan’s note of 16 December 2008 set out the plaintiff presented with worsening pain now also in the right shoulder and referring to the right side of the head, causing headache and soreness with movement.
407 On 3 February 2010, it was noted the plaintiff’s partner upset her because he was protective of his wealth. The note of 23 July 2010 described the plaintiff’s partner sending her photographs of him having sex with other women.
408 Dr Phan signed a disabled persons parking scheme application on the plaintiff’s behalf on 5 March 2009.
409 Dr Shvetsov noted in November 2007 that the plaintiff had an extra marital relationship for five years, He noted on 3 November 2010 there was to be a conciliation on 14 December 2010.
410 Ms Maureen Grant, counsellor, wrote to Dr Abersinghe dated 7 July 1998, advising that the plaintiff attended four sessions of counselling relating to an unsatisfactory marriage. Ms Grant set out she worked with the plaintiff on communication, anger management, and stress and anxiety management techniques.
Lay Evidence
411 Peter Carrick, national workers’ compensation manager of the defendant, swore an affidavit on 9 May 2011.
412 Mr Carrick disputed that the plaintiff was required to spend time operating computers in awkward positions. She was required to be seated on a standard ergonomically designed and adjustable office chair at a standard office workstation. He exhibited to his affidavit a copy of a photograph taken of the actual workstation at which the plaintiff was seated in about 2005‑6.
413 Noting the plaintiff also alleged that she had two computers at her desk which she had to turn and lean towards to operate, as well as a set of drawers under the desk which impeded her sitting in front of the computer, Mr Carrick deposed that a two screen desk setup was normal in many office situations. The below desk set of drawers was on castors and could be moved to accommodate a variety of seating positions at the workstation. He also exhibited a photograph taken of a workstation with two computer screens.
Overview
414 I accept the plaintiff suffered a compensable injury to her neck and left shoulder as a result of her posture performing duties of data entry at work.
415 Mr Kierce having seen the DVD of the work station shown in the DVD which the plaintiff disagreed resembled her own, thought it was possible though not probable there was an aggravation but it was more likely the plaintiff’s condition was due to constitutional factors.
416 Other practitioners who have commented on causation have accepted a relationship between the onset of the plaintiff’s injuries and the set up of the work station
417 Dr Phan considered the plaintiff’s work posture contributed to soft tissue strains. Mr Xenos thought her posture may be a contributing factor to her injuries. Mr Mangos thought rapid keyboard use of the plaintiff’s arms was the crux of the problem. Mr Davie considered the plaintiff’s condition was initially work related and came on probably due to posture and sitting but he was not certain in the absence of any definite injury.
418 Ms McKenzie thought the plaintiff’s constant repetitive use of her arms in close to a fixed posture aggravated her shoulder condition. Dr Horsley was uncertain of the exact causation.
419 In any event, the focus in this application is on the nature and effects of the compensable injury and not upon the cause of action. As Forrest J stated in Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 501 if there is a compensable injury that is serious, the application succeeds.
420 Further, I am mindful that the defendant accepted liability for the payment of weekly payments and medical expenses and also pursuant to Section 98C. for the left shoulder, neck and cervicothoracic region of the back.
421 The acceptance of liability may not be binding but as said by Ashley JA in Ansett v Taylor (2006) VSCA 171, such an admission should ordinarily be regarded as very significant “albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
422 No such explanation has been forthcoming in this case.
423 Dealing first with the physical injuries, there is no suggestion of any neck or shoulder problems predating the period of employment with the defendant.
424 Dealing with each physical impairment separately, I will first consider the application in relation to the cervical spine.
425 The issue for consideration is whether there is an organically based impairment at the present time and whether the consequences thereof are serious.
426 The psychological or psychiatric consequences of the neck injury must be excluded when considering an application pursuant to sub section (a)
427 Initially, most medical examiners considered the plaintiff’s complaints in relation thereto to have an organic basis. However this situation has changed with the non organic taking over and little support for the plaintiff’s neck condition having a physical basis.
428 The first examiner Dr Horsley queried whether the plaintiff was suffering from aggravation of cervical spondylosis or cervical disc pathology. Some months later, Dr Mitchell thought there was a strong chance the plaintiff’s pain was coming form her spine and sought permission to carry out posterior column blocks.
429 In December 2007, Mr Davie thought it was not possible to make a definite diagnosis pathologically but most likely it was non specific pain and possibly an early cervical disc problem. Mr Moran in January 2008 thought the plaintiff had aggravated degenerative disease of the cervical spine.
430 In 2009, treating neurosurgeon Mr Xenos thought there was nothing significant on investigations of the cervical spine. He diagnosed features of fibromyalgia and chronic pain syndrome established on the back end of cervical spondylosis only to a mild degree.
431 The plaintiff presented in a relatively normal manner to these examiners who were relatively supportive of an ongoing organic basis for her neck complaints. In more recent times, however, the plaintiff’s presentation in examination has changed significantly.
432 When Dr Blombery examined the plaintiff in 2010, she complained of diffuse pain and sat sloping slightly to the right. He thought she needed ongoing treatment for secondary depression which he thought was tending to enhance her experience of pain.
433 Accepting that there were no significant findings on investigations of the cervical spine, Dr Blombery thought the plaintiff’s condition was all organically based diagnosing a myofascial pain syndrome.
434 However, Dr Blombery agreed that neither the plaintiff’s posture or her ability to walk would be a result of her neck condition and they were a cerebral reaction to the plaintiff’s pain generally
435 Dr Blombery explained that CRPS he diagnosed in the shoulder was not a condition relating to the cervical spine, but rather the extremities.
436 Mr Kierce who examined the plaintiff in more recent times, thought any physical condition had resolved. The plaintiff presented to him in an extraordinary manner, consistent with her presentation in the witness box. There was very little movement of the neck in formal examination but the plaintiff moved freely in normal conversation. She held her head to the right on both examinations
437 Following examination in June 2010, Mr Jones considered that psychological or functional components were undoubtedly present and that he did not believe the plaintiff’s employment was still a cause of her incapacity.
438 On 1 March 2011, the Medical Panel found the plaintiff was suffering from a residual dysfunction of the left shoulder following surgery for a soft tissue injury, a chronic pain disorder associated with psychological factors and a general medical condition and an adjustment disorder with depressed and anxious mood relevant to the claimed injury. It found the plaintiff’s incapacity for work was still materially contributed to by the claimed injury.
439 In my view, the manner in which the plaintiff gave her evidence was quite extraordinary. For the most of the time in the witness box, she leant to her right side, reclining to the point where she was almost lying down. She explained she had to sit on an angle or lie down completely because of the pressure on her left side.
440 I am satisfied however that the plaintiff genuinely believes herself to be in chronic pain.
441 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
442 I accept the description by Mr Kierce that there was a significant functional component and psychological reaction to the plaintiff’s physical condition which is manifested by her posture.
443 Taking into all the evidence, I am not satisfied that as at the date of the hearing, the plaintiff has an organically based injury to her cervical spine.
444 In my view, the plaintiff’s presentation has been totally overwhelmed by what has been diagnosed as a chronic pain disorder or an adjustment disorder in response to the plaintiff’s perceived severe pain.
The Shoulder
445 The plaintiff’s left shoulder condition was initially accepted as capsulitis or adhesive bursitis.
446 The plaintiff underwent hydrodilitation and then decompression surgery and rotator cuff debridement in May 2007.
447 Following these procedures, Mr Xenos described the plaintiff’s condition as degeneration of the left shoulder. Mr Moran diagnosed left shoulder impingement with secondary adhesive capsulitis, a similar diagnosis to Ms McKenzie who found adhesive capsulitits secondary to the surgery. Mr Mangos described the plaintiff’s condition as tendonitis and capsulitis and probable RSD although he reported no symptoms of this condition on his examination.
448 Treating surgeon Mr Li diagnosed adhesive capsulitis secondary to cervical spondylosis. When he last saw the plaintiff seven weeks after the surgery, he thought her prognosis good with an expectation that once she regained motion and strength, it would be reasonable for her to return to pre injury duties in six to eight weeks.
449 Dr Blombery diagnosed myofascial pain syndrome and also CRPS Type 1 in relation to the left shoulder. Whilst he is the expert in terms of the syndrome and as he explained would be more attuned to the presence of this condition, he is the only examiner, including those who were alerted to temperature changes by the plaintiff, who found any of the indicia of the syndrome.
450 Whilst the plaintiff maintained that she effectively did not use her left shoulder at all, Dr Blombery found no evidence of wasting on either examination – similar to Dr Phan’s findings throughout the years. Mr Kierce only found very slight wasting.
451 Whilst Dr Phan had observed some temperature changes on examination, there were no recorded clinical findings in this regard.
452 Mr Kierce found on re examination in January 2012 that the adhesive capsulitis from which the plaintiff was suffering on the first examination in 2008 had pretty well resolved.
453 The plaintiff’s presentation in relation to her left shoulder was also quite bizarre. On re examination with Mr Kierce, she held her elbow in a flexed position not using her left arm. She presented in a similar manner to Dr Epstein. The plaintiff explained in cross examination that she cradled her left arm because of pain when her shoulder drooped.
454 Taking onto account the medical evidence, the plaintiff’s presentation in the witness box and her evidence generally, I am not satisfied that she has a serious injury pursuant to clause (a) in relation to the shoulder.
455 In my opinion, the plaintiff’s condition is predominantly non organic and fits the definition of a chronic pain syndrome.
Psychiatric Impairment
456 The plaintiff also brings this application pursuant to clause (c).
457 The plaintiff’s claim for psychiatric impairment under Section 98C was accepted.
458 A chronic pain syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.
459 In this case, I am satisfied that the plaintiff has a severe psychiatric impairment.
460 I have already described in detail the plaintiff’s bizarre presentation in the witness box and my view that there was no organic basis on the medical evidence for this. Further, repeatedly the plaintiff expressed paranoid views describing how numerous people including the psychologist who saw her after the station suicide, the taxi driver, Dr Horsley and her receptionist, the staff at Epworth and others were acting against her interests.
461 In this case, where there is a pre existing psychiatric condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the employment is severe and permanent.
462 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
463 This approach was recently adopted by the Court of Appeal in AG Staff P/L v Filipowicz, Arnold Ribbon Co P/l v Filipowicz (21012) VSCA 60.
464 Whilst the plaintiff had some pre-existing psychiatric problems I am satisfied that they were not of any significance at the time of her work injury.
465 The plaintiff’s most significant psychiatric history was some twenty years ago following post natal depression some years after the birth of her son. Following an overdose, she was hospitalised for a month and prescribed anti depressants for a short time.
466 Thereafter, there was not continuing psychiatric or psychological treatment or medication.
467 Although there were some episodes of stress reported by the plaintiff later in the 1990s in relation to which she saw a counsellor and more recently in 2005 and 2006 relating to family and relationship issues, D Phan confirmed that there were not any other stressors or significant bouts of depression after the 1991 admission. Further since suffering injury at work, the plaintiff’s main focus disturbing her mood had been her work injuries, chronic pain and dealing with WorkCover.
468 When Dr Shvetsov was given a more detailed version of the plaintiff’s psychiatric history in cross examination, he disagreed that was a different picture than the plaintiff painted. His disagreed that stress was a psychiatric condition. He thought complaining to a doctor about family issues was probably what the majority of people did.
469 Whilst the plaintiff may have been in an abusive relationship, Dr Shvetsov thought she could stand up for herself. As Dr Shvetsov noted, before the injury at work the plaintiff had been functioning well, enjoying her life and her work and earning good money. She did not require psychiatric treatment or anti depressant medication until after the injury at work and there was no mental condition in the background when the injury happened.
Consequences
470 I accept that the plaintiff presently suffers from adjustment disorder with associated depressed mood and anxiety. She also suffers from a chronic pain syndrome which Dr Shevtsov and the Medical Panel agreed was associated with psychological factors and a general medical condition. Dr Jackson reached a similar diagnosis but he thought whether there was a continuing physical diagnosis that could be reasonably related to the happenings at work remained unclear.
471 The Medical Panel found that this psychiatric condition and also the plaintiff’s left shoulder dysfunction still materially contributed to her incapacity for work.
472 Depression was noted by Dr Phan and also the treating physiotherapist in 2007. By 2008, Dr Phan considered there was some functional overlay.
473 Dr Phan considered the plaintiff presently suffered from anxiety and depression. He agreed it was difficult to explain the plaintiff’s pain at times and in fact, it was disproportionate to the nature of her physical condition.
474 In early 2007, Dr Hogan diagnosed a chronic pain syndrome which he attributed to the plaintiff’s work activities with features of a major disorder with psychotic features.
475 In 2007, Dr Ratnayake considered chronic pains secondary to the work injury had contributed significantly to a psychiatric condition, contributing to the development and perpetuation of the plaintiff’s anxiety and depressive symptoms.
476 Dr Stern in early 2008 thought the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood related to her work injuries. Later that year, Dr Douglas also diagnosed an adjustment disorder and depressed mood relating to the plaintiff’s injuries.
477 In 2012, Dr Epstein diagnosed a chronic pain disorder with psychological factors and a general medical condition.
478 Noting on the first examination in mid 2010 that the plaintiff presented with extraordinary chronic pain at numerous locations throughout her body and that she had a fixed sense of injury, Dr Jackson provisionally diagnosed a pain disorder associated with both psychological factors and the plaintiff’s general medical condition in terms of the work incident.
479 The major depressive component of her condition resolved after treatment in mid 2011 as Dr Shvetsov confirmed.
480 When he re examined the plaintiff in early January 2012, Dr Jackson noted that at face value her presentation was one of a woman overwhelmed by chronic pain and disabilities that left her a permanent invalid. He confirmed his earlier provisional diagnosis but noted whether the continuing physical diagnosis that could be reasonably related to the work incident remained unclear.
481 I am satisfied that the plaintiff’s psychiatric response to her work injury materially contributes to her present psychiatric impairment and its consequences and will continue to do so permanently – see Ashley JA in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172.
482 As a consequences of her psychiatric condition, the plaintiff suffers problems with memory and concentration. Her energy levels and motivation are low and at times she has been suicidal. She ruminates, constantly thinking about the way her work injuries have changed her life to the point where she now does not have a life and she has become socially isolated.
483 Because of her condition the plaintiff requires Cymbalta, the dosage having been increased by Dr Shvetsov from sixty milligrams to ninety milligrams in the middle of 2011.
484 I accept that previously the plaintiff’s main priority was her work which she enjoyed and gave her a great deal of pride as well as substantial financial reward working with the defendant from 1999 and the ANZ for some years before then. The plaintiff now cannot see herself working at all. She perceives her physical problems to be such that she could not sit at her desk and do any work. From a psychiatric point of view, she could not deal with interactions with other people and would be angry and not a “nice receptionist.”
485 I accept that the plaintiff wants to work and if her pain disappeared she would happily return to a $70,000 per year job of the type she had with the defendant.
486 I accept that because of her chronic pain syndrome and/or adjustment disorder, the plaintiff does not have a capacity for suitable employment.
487 In my view, that interference with her work capacity satisfies the narrative test.
488 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
489 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
490 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
491 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
492 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
493 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein - See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
494 I am therefore required to determine a “without injury” earnings figure.
495 The parties agreed that the appropriate without earnings figure was based on gross annual earnings of $60,000. On that basis the onus is on the plaintiff to establish that she does not have the capacity to earn 60% thereof - $36,000 or $692 per week on a permanent basis.
496 Taking into account all the evidence, I am satisfied that the plaintiff has a permanent loss of earning capacity of forty per cent related to her psychiatric condition.
497 As Dr Shvetsov explained, just the fact of having to go to work would add an additional stress to the plaintiff’s life. In his view, it was unlikely that the plaintiff would return to any sort of work, even on a graduated program. He was particularly concerned with adding stresses to her life given the relapse in her condition last year when she was hospitalised without any particular trigger, simply from a gradual deterioration in her condition.
498 Dr Phan and Dr Epstein shared Dr Shvetsov’s pessimistic view as to the plaintiff’s work future.
499 Whilst Dr Jackson thought the plaintiff’s psychiatric condition was not a bar to work or rehabilitation, he thought with her fixed thinking, it was very unlikely she would accept let alone participate in any rehabilitation or return to work plan.
500 Mr Kierce thought the plaintiff was fit for pre injury employment, but due to her psychological state it would be unlikely she would ever return to any employment.
501 Further Ms George in her vocational assessment in December 2011 concluded that the plaintiff did not have a capacity for suitable employment due to her physical injuries and psychiatric condition considered separately and that this situation was permanent.
502 As the plaintiff’s psychiatric condition has persisted since 2006 without substantial improvement, I am satisfied that it is permanent - a view supported by the plaintiff’s treaters who were pessimistic about the plaintiff’s prognosis.
503 As Dr Shvetsov explained, the plaintiff continues to require close monitoring of her mental status, adequate anti depressant medication regime and psychological support. He felt there was the risk that if the plaintiff’s condition deteriorated, she could overdose and suicide.
504 Dr Epstein agreed that the plaintiff required continuing psychiatric treatment.
505 I am satisfied that the plaintiff does not have a capacity for suitable employment and therefore has suffered a loss of earning capacity of forty per cent, which I am also satisfied is likely to last into the foreseeable future.
506 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
507 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
508 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 paragraph [147] and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
509 Accordingly, I grant leave to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity in relation to her psychiatric condition pursuant to clause (c).
510 The plaintiff’s application pursuant to clause (a) in relation to her cervical spine and left shoulder is dismissed.
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