Ramos, Theresa v Northern Health

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-00858

THERESA RAMOS	Plaintiff
v
NORTHERN HEALTH	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18 November 2009
DATE OF JUDGMENT:	24 November 2009
CASE MAY BE CITED AS:	Ramos, Theresa v Northern Health
MEDIUM NEUTRAL CITATION:	[2009] VCC 1435

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985- whether plaintiff has established a serious injury within the meaning of the Act by reason of injury to the neck or shoulder or by reason of a psychological condition- whether plaintiff entitled to leave to bring proceedings for loss of earning capacity - whether plaintiff has established loss of earning capacity pursuant to s134AB(38)(e) and (f)- whether plaintiff entitled to bring proceedings for pain and suffering

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. V. A. Morfuni SC &	Zaparas Lawyers
Mr. R. H. Stanley
For the Defendant	Mr. J. Ruskin QC &	Hall & Wilcox
Ms. M. Tsikaris
HER HONOUR:

Ms Ramos seeks leave to bring proceedings for the recovery of damages pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”)
Mr Morfuni SC, who appeared with Mr Stanley, for Ms Ramos, submitted that the plaintiff was relying on three injuries:
(a) an aggravation of the degenerative condition of the cervical spine;
(b) a rotator cuff injury to the left shoulder; and
(c) a psychological injury.
Ms Ramos alleges that the injuries to the neck and left shoulder are each “serious injuries” within the meaning of the definition of serious injury in s134AB(37)(a) of the Act.
Ms Ramos generally sought leave to bring proceedings for damages for both pain and suffering and loss of earning capacity. However, Mr Morfuni abandoned the claim for loss of earning capacity in relation to the neck injury during closing submissions.
Ms Ramos alleges that her psychological condition is a permanent severe mental or permanent severe behavioural disturbance or disorder pursuant to the definition of serious injury in s134AB(37)(c).
Mr Ruskin QC, who appeared with Ms Tsikaris for Northern Health, submits that neither the injury to the neck nor the injury to the shoulder are “serious. ” He further submitted that the psychological condition is not “severe.”
Mr Ruskin also submitted that Ms Ramos had not discharged her onus in showing the requisite 40 per cent loss of earning capacity pursuant to s134(AB)(e) and (f) in respect of the psychological condition or the left shoulder.
The issues are:
(a) whether the injury to the left shoulder is serious;
(b) whether the injury to the neck is serious;
(c) whether the psychological injury is severe; and
(d) whether Ms Ramos has satisfied the requisite 40% loss of earning capacity test pursuant to s134(AB)(e) and (f) in respect of either the psychological condition or the left shoulder.
Given the way the case was run (with emphasis on the psychological injury) I will consider the issue of the psychological condition first.
Background
Ms Ramos is aged 43 and is divorced with two daughters, having separated from her husband in 2004.
She migrated to Australia from the Philippines on 18 February 1987 and later qualified as a nurse division 2.
After obtaining her nursing qualification, she was employed as a nurse in various capacities: at Wyuna Private Nursing home; in agency work with Twinhills Agency; at the Drug and Alcoholic Rehabilitation Centre, Fairfield; and at Mont Park Psychiatric Hospital.
Ms Ramos subsequently commenced employment with Bundoora Extended Care which became part of Northern Health in 1997. Her work involved working night shift with elderly patients and involved awkward lifting.
Apart from a knee injury for which she was off work for one month in 2000, she enjoyed good health until February 2003.
In February 2003 Ms Ramos experienced stiffness in her neck and attended on her general practitioner, Dr Baglar.
However, she continued to work until October when she lodged a Workcover claim.
Ms Ramos then returned to work on 1 December 2003 working five hours a day, three days a week in clerical duties. She then returned to nightshift in July 2004 and subsequently resumed full time duties on 28 February 2005.
On 27 July 2005, she suffered an injury to her left shoulder at work when attending to a patient suffering from dementia. She then ceased work.
Ms Ramos returned to work on light clerical duties on 20 September 2005 and later resumed ward duties with a “buddy” in early 2006. The “buddy” was then removed in April 2006. However, after suffering an aggravation of her shoulder and neck injuries in May 2006 she ceased work with Northern Health upon being advised that there was no suitable employment.
Ms Ramos then commenced employment with Delahey Medical Centre in early October 2006 working 25 hours a week doing clerical work. However she ceased this work in November 2006 because of an incident at work unrelated to her injuries.
In December 2006, Ms Ramos made a suicide attempt although she did not tell Mr Baglar or her solicitors about this incident until April 2009 because she was ashamed.
On 3 December 2007, Ms Ramos commenced employment with Drake International, working two evenings a week from 5:30 p.m. to midnight and on Saturday or Sunday from 2:15 p.m. to midnight (a total of some 22 hours). Her work involved interviewing nurses over the telephone for placements. Her workload increased while working with Drake and was 36 hours a week towards the end of 2008.
On 25 January 2009, Ms Ramos ceased work at Drake International because of decompression surgery on her left shoulder on 30 January, 2009.
Ms Ramos swore three affidavits in this proceeding.[1] She was cross-examined and gave her evidence in a straightforward manner. However, she did appear subdued consistent with the evidence which suggests she suffers from a chronic psychological illness.
[1] Of 7 November, 2008; 2 February 2009; and 28 May 2009
No issues of credit were raised and I generally accept her evidence.
Psychological Injury
evidence of Ms Ramos
In her affidavit of 28 May 2009 Ms Ramos states that in mid 2006 when she was not able to return to work with Northern because there were no suitable light duties she became distressed. Further that all of the anxiety and worry that she had kept contained “crashed down on me and I found it harder to cope with day-to-day things.”[2]
[2] Further Affidavit of Theresa Ramos of 28 May 2009 at paragraph 3
In around December 2006 she was in the bath and began to think more about ending her life. She wrote letters to her children saying goodbye and sent a text message to a friend. She found a blade and was prepared to cut her wrists. However, her friend contacted the police and they came to her house and made her promise “not to do anything silly”[3].
[3] Further Affidavit of Theresa Ramos of 28 May 2009 at paragraph 4
She claims that the thought of ending her life is “on my mind often”; that she may start crying uncontrollably when in her car; that she eats very little, has difficulty sleeping, takes mogadon to help her sleep, and has lost social contacts[4]. She has been prescribed Cymbalta, an antidepressant, which was increased to 60 mg in May. She has also been seeing a psychologist, Dr Herbert, since May.
[4] Further Affidavit of Theresa Ramos of 28 May 2009 at paragraphs 5, 7, 9, 10 and 13
Under cross-examination, Ms Ramos agreed that she would like to try the Drake work again if there was a vacancy.
Under re-examination, she said that she had enjoyed geriatric nursing and agreed that it was her intention that geriatric nursing would be her “life’s work”, provided she was able to continue doing it.
Medical evidence
Dr Herbert, treating psychologist, prepared a report of 20 July 2009 which was updated on 12 October 2009.[5]
[5] She also prepared a short report amending a previous typographical error of 12 October.
In her updated report of October, Dr Herbert states that Ms Ramos presents with symptoms consistent with a diagnosis of dysthymia, meaning she has been in a “chronic state of major depression for over two years.” Her score on the Beck Depression Inventory-II is 45 which indicates “severe depressive symptoms.”
Dr Herbert describes her condition as needing further psychological support and that it is “long term” and unlikely to resolve quickly.
Dr Epstein, consultant psychiatrist, completed a medico-legal report of 7 October 2009 for Ms Ramos’ solicitors.
He opines that Ms Ramos appears to have developed symptoms during the course of her employment in February 2003 that have persisted despite a variety of treatments. “She appears to have developed a chronic Pain Disorder associated with both psychological factors and a general medical condition. As a consequence of chronic pain, discomfort and disability she has developed a chronic adjustment disorder with depressed mood.” He further opines that she requires continuing psychological treatment and her prognosis for improvement is poor.
Dr Stern, consultant psychiatrist, examined Ms Ramos, at the request of Northern Health’s solicitors and completed a report of 13 August 2009.
He opined that she is suffering from a major depressive disorder with anxiety and that she has more recently developed additional alcohol abuse. Further that her psychiatric state is related to the work injuries from 2000 to 2006 at Bundoora Extended Care. “Employment has been a materially and significant contributing factor” although he acknowledges her relationship break-ups as aggravating her depression and anxiety.
He confirms that she needs continuing psychological treatment and antidepressant medication.
findings
I am satisfied that Ms Ramos suffers from a psychological condition. Every doctor acknowledges some form of depression, including Dr Epstein (who refers to a chronic adjustment disorder with “depressed mood” and also refers to her “depressive condition”).
I also accept Ms Ramos’ own evidence that the anxiety and worry that she had previously kept contained following her work injuries “crashed down” following cessation of work in 2006. Although there was a delay in reporting these symptoms, I accept her explanation that she was ashamed of her condition. In these circumstances I accept that the injury is a compensable injury which arose out of her employment with the defendant.
Given the references to her “chronic” condition (as referred to by each of Dr Herbert and Dr Epstein); her continuing need for treatment (acknowledged in each report) and the effluxion of time, I am further satisfied that the injury is permanent in the sense that it is likely to last during the foreseeable future.
However, it remains to be considered whether the condition is “severe” in terms of the pain and suffering consequences or the loss of earning capacity consequences. Given that s134AB permits a worker who has satisfied the loss of earning capacity requirements to claim damages for both loss of earning capacity and pain and suffering, I will consider the question of loss of earning capacity first.[6]

Economic loss
[6] Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
evidence

In his report, Mr Epstein observed no problems with perception, intellectual functioning or with memory or concentration. Ms Ramos’ speech was normal with no evidence of thought disorder, delusions or hallucinations. However, he suggests that the major factor “preventing” a return to work appears to be her chronic pain disorder and to a lesser extent her level of depression. He opines that her depressive condition has left her feeling “demoralised, unmotivated, fatigued and irritable.”
It is a little unclear what Dr Epstein means by a “chronic pain disorder.” It is also unclear whether he is opining that Ms Ramos is “prevented” from full-time work rather than part-time work as the issue is not addressed. His observations to the effect that Ms Ramos was “unmotivated” also did not accord with my own observations of Ms Ramos who appeared to be highly motivated to “give work a try.”
Dr Epstein’s report should therefore be treated with some caution as compared to the report of the treater, Dr Herbert. Her report states that the level of depression would make work difficult, but observes that Ms Ramos is still able to keep regular appointments, converse well and complete simple thinking tasks. From a psychological perspective she “has the ability to do some work, albeit not the same work as before.” She is unfit for her pre-injury employment.
From a psychological perspective Ms Ramos should be able to perform alternative duties with the following restrictions:

• no tasks which cause strain on her left shoulder;
• part-time work and/or flexible work hours;
• simple tasks which do not require complex thinking or important decision- making; and
• low stress activities where she is not under pressure to work quickly.

Dr Stern described no evidence of thought disorder, delusions or hallucinations. Although her memory and concentration were reduced, her orientation was intact and intelligence normal. She had good insight into her situation. In his view from a psychiatric aspect alone she was fit for all work including her pre-injury duties.
Application of statute
Ms Ramos must establish a narrative test for determining whether she may make a claim for loss of earning capacity so that the loss of earning capacity consequences may be fairly described as being more than serious to the extent of being severe (s134AB(38)(d)). I will consider this narrative test further, below.
Ms Ramos must also satisfy an additional test such that she has a loss of earning capacity of 40 per cent or more which loss will continue (s134AB(38)(e)).
In undertaking the “40% task” a comparison must be made between “without injury” earnings and “with injury” earnings as defined in s134AB(38)(f). To this end both parties were asked to, and did, provide their positions by way of a written document.[7]
Without injury base
[7] Plaintiff’s Submissions on Loss of Earning Capacity filed 18 November and Defendant’s Statement of Calculation of loss of Earning Capacity filed 18 November
In terms of “without injury” earnings the Act prescribes an examination of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning during the period of three years before the injury as well as the income she would have earned or would have been capable of earning in the period three years after the injury (s134AB(38)(f)).
Mr Morfuni submitted that Ms Ramos has no capacity to perform suitable employment. In the alternative, he submitted that she had demonstrated the requisite 40 per cent loss of earning capacity. He suggested that, in examining this question, the court should be satisfied that, if not for her injury, Ms Ramos would have been capable of working the same job and the same hours as she did in 2003 when she earned $55,267.00 gross income. However, that an assumption should be made that her pay would have increased by at least three per cent per annum so that the without injury base figure would increase in each year culminating in a figure of $65,992 in respect of the 2009 year (which is three years after the apparent onset of Ms Ramos’ anxiety and distress in mid 2006.).
Mr Ruskin generally accepted this as a proper basis for calculation of the “without injury” base and fairly accepted that the highest figure in 2009 was appropriate. However, there appeared a slight difference in result with the calculation for this amount said to be $65,989.
If Ms Ramos is earning or capable of earning more than 60 per cent of the “without- injury” figure she will fail to meet the 40 per cent test. This 60 per cent was measured as an amount of $39,595 (or $39,593 on the defendant’s calculations).
“With injury” figure
The “with injury” figure was more contested both in method of calculation and application. This requires an examination of the worker’s gross income which the worker is earning or is capable of earning in suitable employment today.
Mr Morfuni submitted that Ms Ramos’ tax return for the year ended 30 June 2008 (when she was employed by Drake) should provide a guide. This gave an hourly rate of $31.03. Further, it meant that if Ms Ramos worked 24 hours a week she would receive income of $38,726.73.
On this basis Mr Morfuni conceded that if Ms Ramos was capable of working 24.5 hours a week or more then she would not discharge her onus of proof (at 25 hours the amount earned was $40,340.35 which was more than 60% of the without injury earnings base, above, on either version).
Mr Ruskin submitted that the court should examine the more recent evidence in Ms Ramos’ own affidavit that she was earning $780 gross per week or $40,560 annually whilst employed at Drake as at 7 November 2008 (hourly rate being $35.45)
On this basis, Ms Ramos’ hourly rate as at today should be $36.51 (being the 2008 rate indexed by three per cent) such that, even if she worked for 21 hours she would earn $39,868 per annum and would fail to discharge her onus.
For reasons that will become clear, it is unnecessary to resolve the issue of the preferable basis for the calculation, since Ms Ramos has not established that she is unable to work 25 hours per week or more.
Capability of Ms Ramos in suitable employment
Given Ms Ramos is not currently working the real issue is what she is capable of earning in suitable employment today.
At opposite ends of the spectrum are the reports of the medico-legal practitioners. Dr Stern claimed that Ms Ramos could work even in pre-injury work, while Dr Epstein appeared to suggest that it was Ms Ramos’ psychological condition which is “preventing” her from work.
As indicated already, there were aspect of Dr Epstein’s report which were unsatisfactory and unclear. In particular, the report does not address the issue of part-time work. As such I do not accept that his opinion unequivocally suggests that Ms Ramos is incapable of any work as was suggested by Mr Morfuni.
Mr Morfuni also referred to the vocational assessment of Ms Schneider of 17 October, 2009. However, I am not satisfied that this report takes the matter further which is largely based on hearsay evidence. Mr Morfuni relied on the fact that Ms Schneider was “convinced” that Ms Ramos “does not have a current work capacity from the psychiatric/psychological perspective” (page 32 of the report). However, no foundation is provided for this opinion. There is some reference to the fact that Ms Ramos has “significantly deteriorated to the point where she is no longer able to perform the part time clerical work she did for Drake.” However, this is also not substantiated and appears to ignore the earlier finding in the same report that Ms Ramos “appears to be much improved’ after seeing Dr Herbert (at page 6 of her report). Mr Morfuni suggested that this view may have been based on Ms Ramos’s statements to the effect that she was unable to get to work but, if so, it does not accord with Ms Ramos’ evidence in court.
Ultimately the treating psychologist must be taken to know Ms Ramos best. Although she is not a psychiatrist, she is a clinical psychologist and has been seeing Ms Ramos weekly (until recently when the visits were reduced to fortnightly in the light of funding difficulties).
To this end I prefer and accept the opinion of Dr Herbert that Ms Ramos is capable of working part-time in alternative employment.
A difficulty is that the number of hours is not identified in her report. However, there is nothing to suggest that “part-time” could not extend to 25 hours per week. The evidence of Ms Ramos under cross-examination was that she had worked “25 hours a week or thereabouts” when she worked at the Delahey Medical Centre doing computer-type work. Further that she was “doing those duties and coping with them.” This was in around October/November 2006 after she had already became distressed and anxious in mid 2006.[8] The evidence as to her subsequent work at Drake was that the hours were approximately 22 hours. Although this was less than the relevant 25 hours, there was nothing to suggest Ms Ramos was incapable of more hours. Thus she agreed that the hours were “chosen by Drake” and that the work was only interrupted by the operation on 30 January 2009. The report of Ms Shneider also suggests that Ms Ramos’ hours at Drake had actually progressed to 36 hours a week towards the end of 2008 prior to her shoulder surgery.
[8] Further Affidavit of Theresa Ramos of 28 May 2009 at paragraph 3

I have considered the factors set out in the s.5 definition of “suitable employment” in the Act.
The plaintiff is relatively young. She finished secondary school and has experience in clerical work specifically at both Delahey and with Drake. The latter involved using the phone and computer as well as dealing with records.
Mr Morfuni did not suggest clerical work would be unsuitable.
Given the plaintiff has not demonstrated an inability to work part-time in clerical duties, I am not satisfied that the mental disorder has resulted in loss of earning capacity consequences which are, when judged by comparison with other cases in the range of possible mental disorders, fairly described as being more than serious to the extent of being severe in accordance with the narrative test in s134AB(38)(d).
Further, given Ms Ramos has not demonstrated, that she would be unable to work part-time in any suitable employment for 25 hours or more, I am not satisfied that the plaintiff has a loss of earning capacity of 40 per cent or more and will after this date continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more pursuant to s.134AB(38)(e).
It follows that Ms Ramos has not satisfied me that she should have leave to bring proceeding for damages for loss of earning capacity based on her psychological condition.
It is therefore necessary to consider the claim in respect of damages for pain and suffering.
Pain and suffering
In order to be “severe” the pain and suffering consequences must, when judged by comparison with the other cases in the range of possible mental or behavioural disturbances or disorders be fairly described as “more than serious to the extent of being severe”; the word “severe” being a word of stronger force than the word “serious.”[9]
[9] Mobilio v Balliotis [1993] 3 VR 833
Mr Ruskin emphasized the need to consider the consequences today and highlighted that the suicide attempt was made in 2006.
I accept that this is so. However, the evidence of Ms Ramos was that, although she may not have made another attempt, the thought of ending her life is on her mind “often.” Further, all of the evidence suggests that she needs to take a range of medication and treatment to manage her condition.
The general preponderance of the medical reports, including that of her treating psychologist, also suggests that she cannot return to her previous nursing profession. The one exception to this was the report of Dr Stern. However, he has only had limited time with Ms Ramos, seeing her only once. This again is to be compared with the more intensive involvement of Dr Herbert who provides detailed plausible reasons why Ms Ramos cannot return to her previous employment (at page 2 of her October report). I therefore prefer the evidence of Dr Herbert and reject the report of Dr Stern to the extent he opines that Ms Ramos may return to her nursing profession.
The unchallenged evidence of Ms Ramos was that she suffers sleep deprivation, decreased social activities, crying, loss of appetite and weight loss. To this must be added the ongoing need for treatment, the suicide ideation and Ms Ramos’ inability to return to her previous occupation (which was her “life’s work”). When consideration is given to all of this evidence, the consequences of the psychological condition may be fairly described as “more than serious to the extent of being severe.”
Mr Ruskin relied on the decision of Sabo v George Weston Foods. [10] This decision cites the case of Stijepic wherein Ashley JA and Beach AHA referred to comments of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd.[11] Their honours took Chernov JA’s comments as meaning that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But as always, the evidence as a whole must be considered.
[10] [2009] VSCA 242
[11] [2006] VSCA 181
Although Ms Ramos has not demonstrated an incapacity in alternative work, her inability to return to her chosen profession does enable satisfaction as to the pain and suffering limb when taken with all the other evidence in this case.
Ms Ramos is entitled to leave to bring proceedings for damages for pain and suffering based on her psychological injury.
Shoulder injury
Nature and extent
Mr Owen was the treating orthopaedic surgeon who completed five reports and was cross examined. He was an impressive and straightforward witness.
Mr Owen’s evidence was that Ms Ramos had a subacromial impingement of the left shoulder. He performed a subacromial decompression of the left shoulder on 30 January 2009. At operation he found no full thickness cuff tear although this had previously been suggested on ultrasound.
In his report of 25 March 2009, he noted that Ms Ramos had regained 50 per cent of shoulder movement which he described as “satisfactory.” However, under cross- examination he opined that “satisfactory” was a bit generous since some patients have regained full shoulder function after two to four weeks.
Various other diagnoses were suggested in the medico-legal reports: “frozen shoulder”[12]; “ongoing shoulder pain and has had previously demonstrated rotator cuff injuries of one sort or another”[13]; “surgically treated rotator cuff injury”[14]; “a left shoulder injury and may have some evolving shoulder rotator cuff pathology”[15]; “partial thickness tear”[16].
[12]           Report of Mr Flanc, 15 September 2009
[13]           Report of Mr Cook of 29 August 2009, agreed with generally by Professor Love on 28 September, 2009
[14]           Report of Mr Grossbard, 5 October 2009
[15]           Report of Dr Karna of 13 August 2009
[16]           Dr Baglar’s report of 23 March 2009
I accept that there was a compensable injury being a subacromial impingement of the left shoulder as best described by the treater, Mr Owen, who operated on Ms Ramos (and found no full thickness cuff tear). Further, as conceded by the defendant, that this injury is compensable and arose out of the incident at Ms Ramos’ employment on 20 July 2005 when she was lifting a patient.
Given I accept the evidence of Ms Ramos that her symptoms are persisting I also accept that the consequent impairment to her left shoulder function is permanent in the sense that is likely to last during the foreseeable future.
It remains to be considered whether the injury is “serious.”
Economic loss
Mr Cook (neurologist and epileptologist) said that Ms Ramos was not fit for any alternative duties in his report of 29 August, 2009. However, he appeared to partly base this finding on the neck condition. He also completed only one report.
Mr Flanc (general and vascular surgeon) opined on 24 June 2009 that Ms Ramos should be able to cope with light duties performed below shoulder height but “doubted” whether she would cope with full-time duties although part-time work perhaps up to 20 hours per week “may be reasonable.”
Professor Love agreed with Mr Flanc that Ms Ramos was not capable of working in any occupation that involved lifting the left arm above horizontal level (report of 28 September, 2009). However, he did not specify that part-time work was a problem.
In a report of 5 October, 2009, Mr Grossbard did not believe that Ms Ramos would be able to return to her nursing duties but opined that she would be able to cope with sedentary duties below shoulder height not involving lifting or repetitive forceful movements of her arm.
In a report of 13 August 2009, Mr Karna, rheumatologist, also opined that Ms Ramos could undertake appropriate work which did not involve overhead use of her arms, heavy lifting etc.
The weight of the evidence suggests that Ms Ramos has a capacity for alternative duties notwithstanding her shoulder impairment. Indeed, Mr Morfuni conceded that he was unable to point to a doctor that said Ms Ramos was incapable of working at all because of the physical injury with all the doctors suggesting she has a “light duty” capacity.
Mr Owen was also directly cross examined about this issue. Under cross- examination, Mr Owen agreed that over the next 12 to 18 months Ms Ramos would be able to move into 25 hours, 30 hours, 35 hours in clerical work if that is what she wanted.
Nevertheless, as he clarified under re-examination, she should not return to geriatric nursing. He did suggest she could return to other nursing though this was dependent on an optimum facility protected by a supervisor.
Given Mr Owen’s impressive qualifications, his straightforward presentation and the fact that he had seen Ms Ramos a number of times for the purposes of treatment, I accept and prefer his evidence to the extent it conflicted with other medical evidence. It also accorded with the general tenor of Ms Ramos’ evidence. Although I accept that her views as to her capacity are not determinative they demonstrated a high degree of motivation.
In my view, notwithstanding her ongoing shoulder injury, Ms Ramos would be able to move to 25 hours or more in clerical work, which for reasons already expressed, would be suitable employment.
Given the plaintiff has not demonstrated an inability to work part-time in clerical duties, I am not satisfied that the impairment to her left shoulder has resulted in loss of earning capacity consequences which are, when judged by comparison with other cases in the range of possible impairments, fairly described as being more than significant or marked, and at least very considerable.
Mr Morfuni submitted that the “without injury” base should be calculated as at June 2009 for each of the injuries since the plaintiff claims leave to sue for injuries she sustained “in the course of her employment with the defendant” which was up to May 2006. Nevertheless, the actual date of the shoulder injury is earlier than the psychological injury, being July 2005. Accordingly the “three year window” for the “without injury base” may be 30 June 2008 rather than 30 June 2009. This meant that the plaintiff would fail to discharge her onus if she worked for 24 hours or more on the plaintiff’s figures since, on the plaintiff’s figures, Ms Ramos earned $38,726.73 for 24 hours work which was more than 60% of the “without injury” figure (at $38,442 on 30 June 2008).
The issue is again inconsequential since Mr Morfuni conceded that Ms Ramos would fail to discharge her onus in respect of the “40% test” in respect of any injury (even on the 30 June 2009 base) if she was able to work 24.5 hours or more. Given I have accepted Mr Owen’s evidence, she has not demonstrated an inability to work 25 hours or more.
Given that I am not satisfied that Ms Ramos would be unable to work part-time in any suitable employment for 25 hours or more, I am not satisfied that the plaintiff has a loss of earning capacity of 40 percent or more and will after this date continue to have a loss of earning capacity which will be productive of financial loss of 40 percent or more pursuant to s.134AB(38)(e).
Ms Ramos is not entitled to leave to bring proceedings for damages for economic loss in respect of her shoulder injury.
Pain and suffering
In terms of pain and suffering, Ms Ramos must show that the consequences to her of any impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.[17]
[17] See s.134AB(38)(c) of the Act; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.
Ms Ramos complains of ongoing pain if she tries to raise her left arm. The worst discomfort was about 10 centimetres down into the upper arm. She has a “throbbing feeling” there most of the time (see e.g. para 25 of affidavit of 7 November 2008). She takes Panadeine Forte for the pain (para 15 of affidavit of 28 May 2009).
The preponderance of the evidence referred to already was also that she would be unable to return to nursing because of her shoulder injury. Although Mr Owen suggested this was possible with general nursing this was only if returning to an optimum facility with a protective supervisor. I cannot be satisfied that this will be the case. He was also of the view that she should not return to geriatric nursing.
It is true that there does not appear to be a need for further surgery now. However, Ms Ramos’ intention was to continue geriatric nursing absent her injuries which she agreed was “her life’s work.” Her inability to return to her life’s work as well as her ongoing pain and need for medication, are, in my view, “very considerable” consequences.
Ms Ramos is entitled to leave to bring proceedings for damages for pain and suffering in relation to her shoulder injury.
Neck injury
As mentioned already, Mr Morfuni abandoned any claim for economic loss in respect of the neck injury.
A CT scan of 13 May 2003 describes “minimal central posterior disc bulging at C3/4, C4/5 and C5/6.”
An MRI of 25 June 2004 describes disc bulges at C3-4, C4-5 and C5-6 with degenerative osteophytes at C5-6; also an annular tear at C3-4 and C4-5.
The medical evidence generally supports some cervical injury in various ways as follows: “significant aggravation to multi-level disc degeneration of the cervical spine”[18]; “underlying cervical spondylosis with superimposed soft tissue strain”[19]: “degenerative changes in the neck”[20]; “mild symptomatic cervical spondylosis”[21] “mild to moderate degenerative change affecting the central cervical discs”[22]
[18]           Mr Flanc’s report of 24 June 2009
[19]           Report of Dr White of 12 July 2006
[20]           Report of Mr Gale of 7 August, 2006
[21]           Report of Mr O’Brien of 9 January 2004
[22]           Report of Dr Baynes of 3 August, 2004
Dr Karna may be against this evidence given he is “sceptical that she has a significant cervical injury work related or otherwise” (report of 13 August, 2009). Nevertheless, the question of “significance” appears to be more closed related to the question of “seriousness” rather than whether there was an injury.
I accept, consistent with the preponderance of the evidence, that Ms Ramos suffered a neck injury constituted by an aggravation to degenerative changes to the cervical spine. Moreover, I accept that it is a compensable injury given the injury arose during the course of employment which involved awkward movements.
Given it continues to affect Ms Ramos I further accept that the consequent impairment to the neck function is permanent.
The defendant accepted that there was a compensable injury to the neck although it was submitted that the injury was not serious.

Pain and Suffering

Ms Ramos certainly complains of ongoing pain in her neck. However, she returned to work after the injury to her neck, albeit with some pain.
The report of Dr Baglar of 23 March 2009 also suggests that her neck pain was not significant given he did not apparently see her between 12 May 2003 and 2005 when her complaints were focused on her shoulder.
Consistent with her own actions, the reports of doctors White, Gale, Karna and O’Brien do not suggest any ongoing disability in the neck which would prevent Ms Ramos from nursing. The opinion to the contrary of Dr Baynes is dated (being 20 January 2005 prior to Ms Ramos’ return to normal duties).
The report of Mr Flanc of 24 June 2009 stands against this general view but his opinion (that she would not be able to work as a nurse) appears to be based on his understanding that she was only able to work in the ward with the assistance of a buddy. In fact, Ms Ramos did return to work full-time undertaking normal duties on 28 February 2005 without the assistance of a buddy.
I accept that Ms Ramos suffers ongoing pain in her neck which can give her headaches, feels stiff and needs support. Further that she needs to contain her exercise and take breaks from driving and that it affects her sleep[23].
[23] See affidavit of Theresa Ramos of 7 November, 2008 paragraphs 22, 23, 24,26 & 27
However, I am not satisfied that she has lost her chosen career by reason of her neck impairment. The evidence is also a little unclear as to whether some of her alleged consequences are attributable to the neck alone (e.g. although she says she used to enjoy dancing and became less social because of her neck problems, in the same paragraph she refers to frustrations in regard to both “my neck and left shoulder”[24]).
[24] Affidavit of 7 November, para 31
The medical evidence also tended to support a physical condition that was manageable. This was consistent with Ms Ramos’ actions which suggested that she was able to manage work, albeit with medication, when she was facing the neck injury alone.
In these circumstances I am not satisfied that the consequences to Ms Ramos of the impairment to her neck are very considerable.
Accordingly, Ms Ramos is not entitled to bring proceedings for damages for economic loss or pain and suffering in respect of her neck injury.
Conclusion
The plaintiff has satisfied me that she meets the definition of “serious injury” in respect of her psychological condition and her shoulder injury.
There will be leave to the plaintiff to bring proceedings pursuant to s.134AB of the Act for damages for pain and suffering only.

•	no tasks which cause strain on her left shoulder;
•	part-time work and/or flexible work hours;
•	simple tasks which do not require complex thinking or important decision- making; and
•	low stress activities where she is not under pressure to work quickly.

[2009] VCC 1435

24 November 2009