Rickard v Japara Administration Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01753

PATRICIA GAYE RICKARD	Plaintiff
v
JAPARA ADMINISTRATION PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2021
DATE OF JUDGMENT:	27 Aug 2021
CASE MAY BE CITED AS:	Rickard v Japara Administration Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 1207

REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – application in respect of pain and suffering and loss of earning capacity – reliance upon paragraph (a) of the definition – injury to the left shoulder and arm – dominant arm – whether statutory test satisfied – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C O’Sullivan with Mr A Coote	Slater & Gordon
For the Defendants	Ms S Manova	Russell Kennedy

HIS HONOUR:

(a)     General background
1This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s325(1) of the Act. She is seeking leave to bring proceedings in respect of both pain and suffering and loss of earning capacity.
2In bringing her application, the plaintiff relies upon an incident on 15 August 2017, when she injured her left shoulder and arm whilst performing duties for the first defendant in the course of her employment as an aged care worker. I would refer to Transcript (hereinafter referred to as “T”) 2. She was attempting to roll over a dementia patient who was to be transferred and who was resisting. This shall hereinafter be referred to as “the accident”. There is no dispute concerning the occurrence of the injury, acceptance in respect of payment of statutory benefits for a period and the like.
3It should also be said that the plaintiff is left handed, so that the injury is to her dominant arm. The issues raised by Ms Manova on behalf of the defendants at the outset were essentially whether, as at the date of the hearing, the plaintiff’s impairment is compensable and permanent and whether the serious injury threshold for pain and suffering and economic loss had been satisfied – see T7-9. The question of capacity to engage in employment and the potential earnings arising therefrom would also receive attention.
4Mr C O’Sullivan with Mr A Coote of counsel appeared on behalf of the plaintiff. Ms S Manova of counsel appeared on behalf of the defendants. The plaintiff adopted the contents of two affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)    The plaintiff’s background, education and employment prior to the accident
5The plaintiff is aged 59 years, she having been born in 1962. She is in a de facto relationship and has four adult children from a previous marriage, one of whom is on a Disability Support Pension, is illiterate and has a speech impediment. He and another son live with the plaintiff.
6The plaintiff left school at Year 8. During her working life, she had various employments, including at a supermarket, at a factory and on farms, including as a picker on a strawberry farm, this being casual work. In approximately 2006 she obtained her Certificate III in Aged Care. She then commenced engaging in this work, apparently originally in Queensland.
7On approximately 27 January 2010 the plaintiff commenced working for the first defendant as an aged care worker. The first defendant operates an aged care facility at Mount Eliza. The plaintiff worked eight night shifts per fortnight, the shifts being normally of 10 hours duration. Her duties included assisting patients with toileting, moving patients, replenishing shelves and drawers and the like. She has sworn that the work could be heavy and repetitive at times.
(c)     The plaintiff as a witness
8I found the plaintiff to be a straightforward witness, who was doing her best to answer questions honestly. She may not have had a perfect memory, but I agree with the submission of counsel on her behalf that she was a candid, straightforward person.
9Dr Joseph Slesenger, occupational physician, who examined the plaintiff at the request of her solicitor, described the plaintiff as interacting well and stated that her affect was reasonable. Dr John King, consultant psychiatrist, who examined the plaintiff at the request of the defendants, described her as being a pleasant, outgoing, friendly woman, who was jovial and who cooperated fully with the interview.
10In summary, I have no reason to doubt the credibility of the plaintiff. The central issue remains as to whether the consequences of which she complains are of sufficient magnitude to discharge the burden of proof.
(d)    The state of the plaintiff’s health prior to the employment and prior to the accident
11The plaintiff had been diagnosed with chronic obstructive pulmonary disease, but has sworn that she was able to work full-time and enjoy an active life, despite this diagnosis. At times, she has also suffered from depression and anxiety and, again, this did not prevent her from working full-time or from engaging in her hobbies. She had suffered a knee injury in a fall on 5 July 2016, but it is not suggested that there were sequelae of any magnitude.
12It is not suggested that the plaintiff had suffered any injury or condition which impacted upon her ability to work full-time as an aged carer for something in the order of 10 years. Similarly, there is no suggestion that the plaintiff suffered from symptoms or restrictions in relation to her left upper limb prior to her employment with the defendant and the accident.
(e)     The injury, its treatment, diagnosis and prognosis
13Following the accident, the plaintiff attended upon Dr Finikias Rugara at the Hastings Family Medical Centre on 15 August 2017, being the day of the accident. The plaintiff referred to the injury occurring at work and was complaining of severe pain in the neck, travelling down the shoulder. She had elbow to ulnar wrist paraesthesias. It is apparent that Dr Rugara referred the plaintiff for a radiological investigation. An x-ray of the left shoulder and an MRI of the cervical spine were performed on 16 August 2017.
14The x-ray of the left shoulder did not reveal any lesion, fracture or dislocation, but there were moderate osteoarthritic changes of the acromioclavicular joint. It is apparent that the plaintiff was to return on 23 August 2017 for an ultrasound of the left shoulder. The conclusion in relation to the MRI was of minor canal encroachment at C6-7 due to minimal median disc protrusion. No other abnormality was detected.
15Dr Rugara then does not seem to have seen the plaintiff until 10 December 2018. She had returned to work in June 2018 performing her pre-injury duties, but the pain had recurred. She was complaining of shoulder pain and immobility of the left upper limb, with pain radiating down the arm.
16I might add that the history of events contained in Dr Rugara’s report does not seem to be comprehensive. It is apparent from the radiology reports that have been tendered that the plaintiff underwent an ultrasound of the left shoulder on 23 August 2017, with the radiologist reporting to Dr Rugara on that day. The conclusion of the radiologist was that there was anterior supraspinatus tendon calcification, which had a “hard” appearance. There was mild subacromial bursitis and impingement. Referral to a shoulder surgeon was recommended.
17It is apparent that Dr Rugara referred the plaintiff for an x-ray of the thoracic spine on 2 January 2018. Due to a punch hole in the copy from the radiologist, part of the findings are difficult to read. However, there is reference to a T12 compression fracture and a loss of anterior cortical height. Mild multilevel degenerative disc disease was noted.
18It is also apparent that, on 4 January 2018, the plaintiff underwent an MRI of the left shoulder. Apparently, this was on referral from Mr Richard Large, orthopaedic surgeon, to whom Dr Rugara had referred the plaintiff. It would seem from the plaintiff’s affidavit that she first consulted Mr Large on or about 11 December 2017. In any event, a comment of the radiologist who performed the MRI was that there was high grade or acute acromioclavicular joint arthropathy with bone and soft tissue oedema. There was an 11 x 4 millimetres insertional tear of the supraspinatus tendon with overlying subacromial bursitis.
19At the request of Mr Large, the plaintiff underwent an x‑ray and a further MRI of the left shoulder on 25 January 2019. The x-ray showed no convincing subacromial space calcification and generally no abnormality. The MRI revealed low grade supraspinatus tendinopathy. The overall conclusion of the radiologist was that there was a focal 10 x 5 millimetres bursal surface partial tear at the anterior insertion of the supraspinatus tendon, previously intrasubstance. There was no full thickness tear. There was mild subacromial bursitis. The radiologist also referred to moderate acromioclavicular joint osteoarthritis and a new degenerative posterosuperior labral tear. There was also mild adhesive capsulitis.
20I appreciate that the recounting of clinical notes and referrals of Dr Rugara, the radiology reports and the references to Mr Large may not be in chronological sequence, but the nature of the material put before me has made that difficult.
21Returning to Dr Rugara, his report of 9 January 2019 simply states that the plaintiff’s work was the cause of her injury and the incapacity resulting from it. He considered the plaintiff to have a capacity to work in roles that did not require the use of her left upper limb and no lifting at all was to be done with it. Otherwise, she had full capacity for employment. He had referred the plaintiff to Mr Large. He had recommended that she have physiotherapy and use oral analgesia as required, adding that these treatments should be available for a period of 12 months.
22Turning to Mr Large, four of his reports were put in evidence by the defendant. Two of these (13 March and 15 March 2019) are also in the Plaintiff’s Court Book. The defendant has also included reports from Mr Large to Dr Rugara of 19 December 2017 and 21 January 2019. I shall deal with the four reports in chronological sequence.
23Mr Large wrote to Dr Rugara on 19 December 2017. The plaintiff’s left shoulder had been painful for 16 months. Mr Large had taken a history of events, which coincided with that otherwise given by the plaintiff. Physiotherapy had been only mildly helpful. There was tenderness at the acromioclavicular joint and the longhead of the biceps. Mr Large noted that, whilst x-rays had shown no arthritis, the ultrasound had shown a partial tear in the supraspinatus, but no tears in subscapularis or infraspinatus. He proposed administering a steroid injection and would see the plaintiff again after the MRI scan.
24In his letter to Dr Rugara of 21 January 2019, Mr Large referred to the position as being “a difficult Medico-Legal situation”. He stated that recent tests had shown calcific tendinitis, but the MRI scan one year ago shows that this was not the case. Mr Large stated that, therefore, this was a new cause for shoulder problems. He thought that a repeat MRI scan from the same provider would give the best representation of what was new and what was old in the shoulder. He also thought that the plaintiff needed a steroid injection into the subacromial space, just superficial to the calcium deposit if it was present. Further, this could be aspirated. There should be a further x-ray. Once these tests were completed, the plaintiff should come back and see him again.
25Mr Large raised the possibility of the plaintiff being referred to the public hospital system, although he would be happy to treat her through the WorkCover system if this was approved through the conciliation process, which was about to occur.
26On 13 March 2019, Mr Large reported to the plaintiff’s solicitors. There is no indication of when he had last seen the plaintiff, but the report or letter answers specific questions. In relation to the ongoing need for treatment, Mr Large reported that subacromial steroid injection was required and that further treatment could involve ultrasound-guided needle barbotage. If this was unsuccessful, an arthroscopic-assisted excision of a calcium deposit could be performed, but this was a surgical treatment reserved for unusual cases.
27Mr Large also stated that such treatment was a reasonable and necessary expense, but he did not believe that it was in relation to a work-related incident. He expressed the view that calcific tendinitis was a spontaneous condition “as far as I am aware”. The treatment might enable the plaintiff to return to her work. He did not feel that steroid treatment and the like were necessary to prevent a significant deterioration in activities of daily living. He also observed that calcific tendinitis is usually a self-limiting condition that improves over a period of 3‑12 months.
28Mr Large then forwarded a report to the Accident Compensation Conciliation Service, such report being dated 15 March 2019. This was in the context of a dispute concerning termination of weekly payments. Mr Large answered a series of specific questions. He noted that the plaintiff attended his rooms on 21 January 2019. He believed that she had calcific tendinitis. He stated that this was a new and different problem from that for which he had previously treated her in December 2017. That had been a 16-month-old injury, which appeared on ultrasound to be a partial thickness tear of the supraspinatus. The plaintiff had not sought further care from him regarding that tear.
29When the plaintiff attended in January 2019, Mr Large felt that she had calcific tendinitis, which was a different diagnosis. He did not believe it to be the same condition. He went on to say that calcific tendinitis is not thought to be an injury. It is thought to be a spontaneous calcification condition. He described it as being “incredibly painful”, stating that the onset of it could be whilst at rest, during activity or during employment. However, he did not believe that it was causally related to employment. He did not believe that calcific tendinitis is materially contributed to by any injury. He went on to say that, once the pain associated with calcific tendinitis subsides, the plaintiff should be able to participate in her pre-injury employment. During the severe pain and disability of calcific tendinitis, the plaintiff’s duties would need to be short, below waist level and involving weights of less than 5 kilograms. He also thought that the plaintiff should have a subacromial steroid injection directly adjacent to the calcific tendinitis. He recommended further investigations. As Mr Large did not feel that it was a WorkCover-related injury, he had suggested that the plaintiff’s general practitioner refer her to the public hospital system.
30There is no indication that Mr Large has since seen the plaintiff. If his opinion was accepted, there would appear to be a substantial difficulty for her to overcome in relation to this application.
31It is apparent from the plaintiff’s original affidavit that, on or about 28 May 2019, she consulted Mr Ian Young, orthopaedic surgeon. However, no report from him has been placed in evidence. On 18 June 2019, she underwent left shoulder hydrodilatation, which she found to be very painful. No medical reports in relation to this have been put before me.
32The plaintiff also put in evidence a report from Mr Cameron Dunkerley, physiotherapist. This report is dated 23 March 2019. He had first seen the plaintiff on 15 December 2017. His findings on examination were consistent with left shoulder subacromial impingement and rotator cuff tendinopathy, as well as acromioclavicular joint dysfunction. He referred to the MRI which had been conducted on 4 January 2018. There had been some improvement in her condition with treatment. She had returned to work on restricted duties and hours. However, her shoulder had not returned to full strength and, on 9 May 2018, she was complaining of aches and pains. She was working a total of 30 hours per week. The plaintiff’s WorkCover benefits, including medical and like expenses, had ceased. She returned to full unrestricted work duties and Mr Dunkerley did not see her again until 4 March 2019. She gave a history of a return to full duties and the worsening of her left shoulder pain. She had not been able to work since December 2018. Objectively, the plaintiff had tenderness over her acromioclavicular joint, supraspinatus and longhead of biceps tendons and a markedly restricted shoulder range of motion, which was worse than had been seen previously. An MRI of 25 January 2019 had reported the findings previously described.
33Mr Dunkerley thought that the plaintiff’s presentation was consistent with the reported cause of injury. The plaintiff’s presenting signs and symptoms were consistent with the sequelae of the shoulder injury being aggravated after not having fully resolved. The repeat MRI suggested similar findings to that of 4 January 2018. She was not fit to work in her previous capacity. She needed medical and physiotherapy treatment, and Mr Dunkerley anticipated a recovery to allow her to return to appropriate duties in the future. He stated that the plaintiff had never been symptom-free, nor had the full strength of the shoulder ever recovered. He referred to her having worsened signs and symptoms.
34The clinical notes from the Hastings Family Medical Centre, which commence on 28 March 2016, were put in evidence. There is no reference to anything involving the left shoulder until 15 August 2017, immediately after the fall and as earlier discussed. There is certainly no history of any earlier treatment of the left shoulder or any injury thereto. There is a knee injury following a fall on 5 July 2016. There are subsequent references to what could be described as everyday complaints, such as a sore throat, gastritis and the like. There are quite a number of attendances for these types of matters, but no reference to any left shoulder condition.
35There is then the specific history of injury to the left shoulder at work on 15 August 2017. This includes a report of severe pain in the neck travelling down the shoulder and elbow to ulnar wrist paraesthesia. There are entries concerning the results of radiological investigations. On 27 September 2017, the plaintiff was improving, but the pain had not entirely resolved. There were further discussions on 24 October 2017. The plaintiff was having ongoing pain. On 21 December 2017, there is reference to the plaintiff seeing Mr Large. On 2 February 2018, it is noted that the plaintiff was requesting an MRI and bone scan in relation to the left shoulder injury. It is apparent that there was a return to work, but this ceased as at 7 February 2018 and a new return to work plan was organised. There is reference to “non-healing pain”. An entry of 23 March 2018 refers to “left shoulder neuropathic pain”, as well as side effects from Lyrica. There was significant improvement in the plaintiff’s left shoulder as at 3 April 2018 and a discussion of a return to full-time hours of work, whilst maintaining light duties. When seen on 3 May 2018, the plaintiff was “tolerating light duties with ongoing pain”. On 14 June 2018, it was noted that the plaintiff needed to return to pre-injury duties.

36When seen by Dr Quitlong at the same practice on 12 October 2018, left shoulder pain was again recorded. The plan was to continue with analgesia. The plaintiff was advised about physiotherapy. There was to be no heavy lifting and the performance of light duties only. On 2 November 2018, Dr Quitlong recorded that the plaintiff had decreased her number of hours at work due to the injury. On 10 December 2018, Dr Rugara recorded that the plaintiff had re-injured her left shoulder, having returned to pre-injury duties in June 2018 “at the closure of her WorkCover case”. Since the plaintiff had returned to work, the pain had recurred. She had shoulder pain, immobility of the left upper limb and radiation of pain down the arm. There is a reference to x-rays, an ultrasound and two MRIs. The plan seems to have been to have an ultrasound-guided Cortisone injection to be performed at Somerville Radiology.
37On 20 December 2018, Dr Rugara saw the plaintiff. She had shoulder pain. There is a reference to calcific tendinopathy, involving the supraspinatus tendon and associated bursal surface partial thickness tear, these obviously being radiological findings. The plaintiff was to continue off work. When seen by Dr Quitlong on 22 December 2018, she had chronic shoulder pain and was “back on work cover (sic)”. A prescription for analgesics was provided.
38There are then several entries relating essentially to an upcoming conciliation on 22 February 2019. There is also reference to an MRI of the shoulder, which revealed a supraspinatus tear; subacromial bursitis; adhesive capsulitis; and posterosuperior labral tear. An entry by Dr Quitlong on 19 February 2019 refers to “chronic left shoulder pain”. A complaint of left shoulder pain was also recorded on 27 February 2019. There was also some discussion of “physiotherapy for left supraspinatus tear”.
39On 14 March 2019, Dr Rugara recorded a visit by the plaintiff. This was in relation to her left shoulder injury. There is reference to an MRI, which revealed a supraspinatus partial tear; subacromial bursitis; adhesive capsulitis; and a posterosuperior labral tear. It is apparent that WorkCover certificates were being provided. There are further references to what would appear to be the same MRI results and the need for a WorkCover certificate recorded on 14 May 2019 and 12 June 2019. Similar entries are made in relation to subsequent visits. An entry of 10 October 2019 records that a surgeon, unnamed, had discharged the plaintiff from care because, after injections, she had achieved full range of movements. However, there was ongoing pain and the plaintiff wanted a pain plan.
40A certificate in relation to the plaintiff’s left shoulder injury is also mentioned on 7 November 2019, whilst on 21 November 2019, the plaintiff was requesting a “Refill of Endone for left shoulder pain”. It would appear that, on 10 December 2019, Dr Lee noted that the plaintiff’s usual doctor was on leave; that the plaintiff had suffered problems with the shoulder for some two years; and that the prognosis was, at best, uncertain. On 2 January 2020, it was noted that the plaintiff was moving to Bendigo. Dr Rugara made a similar notation on 4 January 2020, also recording that the plaintiff was due for a WorkCover certificate in relation to her shoulder injury.
41I have set out what is contained in the clinical records of the Hastings Family Medical Centre at some length. It is to be remembered that Mr Large effectively diagnosed a new injury of a spontaneous calcification condition which would be “incredibly painful”. Presumably this would have occurred in the time between his seeing the plaintiff in early 2018 and his next seeing her again in early 2019. On each occasion, she was referred by Dr Rugara of the Hastings Family Medical Centre. The clinical records would not appear to contain any reference to a spontaneous and incredibly painful onset of a condition.
42Indeed, Dr Rugara has provided a report dated 9 January 2019. In it, he has recorded his diagnosis of calcific tendinopathy, involving the supraspinatus tendon with associated bursal surface partial thickness tear. He has recorded the histories obtained on 15 August 2017, referring to severe pain in the neck travelling down the shoulder. He has also referred to seeing the plaintiff on 10 December 2018, stating that, since working, the pain had recurred. There was shoulder pain and immobility of the left upper limb, and radiation of pain down the arm. He referred to the radiological investigations. He stated that the plaintiff’s work was the cause of her injury and that her incapacity resulted from it. He further stated that she may work in roles that did not require the use of her left upper limb and that no lifting at all was to be done with it.
43The report of 9 January 2019 is a brief report, but it was written at approximately the time that the plaintiff returned to see Mr Large. Whilst the return of pain since the plaintiff had been working is noted, there is no reference to the sudden onset of “incredible pain” associated with the diagnosis as described by Mr Large.
44As is evident from the above, the history recorded by Mr Large of the sudden onset of incredible pain does not fit comfortably with the history given by the plaintiff, whom I found to be credible and reliable. In addition, it does not seem to have been recorded in the clinical notes of the Hastings Family Medical Centre or the report of Dr Rugara. This is of considerable importance, given the opinions expressed by Mr Large.
45The plaintiff has also been seen for medico-legal purposes. I shall deal firstly with the consultations organised by her solicitors.
46Dr Joseph Slesenger, specialist occupational physician, saw the plaintiff on 28 May 2020, reporting on 17 July 2020. The history given to Dr Slesenger included a detailed account of the accident. It also covered an accident which the plaintiff had whilst on holiday and which involved, essentially, her right wrist and which I shall discuss subsequently. The plaintiff informed Dr Slesenger that she had returned to work in January 2018, performing administrative duties for three to six hours per week. She also informed him that, in mid-2018, the alternative duties were withdrawn and she was required to return to her pre-injury work. She attempted to do this and remained at work for six months. However, she had struggled with the tasks involved. She eventually ceased employment in December 2018 and had not returned to work since.
47The plaintiff complained of a further reduction in her range of shoulder movements. She attributed this to her lack of treatment and being unable to afford physiotherapy. It is to be remembered that payment of medical and like expenses had been terminated. The plaintiff was taking Endone at night and Panadol Osteo, two to three per day. She had undergone hydrodilatation on one occasion and had three steroid injections.
48The plaintiff informed Dr Slesenger that she only has basic computer skills. For example, she cannot use an Excel spreadsheet.
49On examination, Dr Slesenger noted wasting of the deltoid. There was also tenderness on palpitation over the lateral clavicle, the acromioclavicular joint, the bicipital groove and the superior aspect of the shoulder. The plaintiff informed Dr Slesenger that she remained under the care of her general practitioner.
50The conclusion of Dr Slesenger was that the plaintiff suffered a left shoulder rotator cuff tear and the subsequent development of left adhesive capsulitis. This was in answer to a question in relation to the injury sustained by the plaintiff during the course of her employment with the defendant.
51Dr Slesenger was of the view that the plaintiff could not return to her pre-injury role. Even if she were to undergo further treatment, it would be unlikely that her symptoms would resolve to the point where she could return to her pre-injury duties. Her incapacity for those should be regarded as permanent. Dr Slesenger also stated that, taking into consideration the plaintiff’s age, symptoms, functional limitations, employment history, computer skills, qualifications, her rural residential location (which is in Huntly, near Bendigo) and her driving limitations, she was unlikely to be able to return to work in a role for which she has suitable training and experience on a consistent and reliable basis.
52However, Dr Slesenger stated that there were opportunities for further treatment and her restrictions could not be regarded as permanent. He suggested that the plaintiff may be a candidate for further surgery. Perhaps somewhat surprisingly, Dr Slesenger then also stated that the prognosis must be guarded, given the length of time of her impairment and disability, as well as her poor response to treatment to date. He also thought it likely that the plaintiff would be at risk of developing arthritis in the left shoulder.
53The plaintiff has also seen Mr Ash Chehata, orthopaedic upper limb surgeon, at the request of her solicitors. This was on 4 June 2019, with Mr Chehata reporting on 17 June. Mr Chehata took a detailed history. He noted that the plaintiff aggravated her left shoulder condition after she returned to normal duties in mid-June 2018. She presented with severe pain in the left shoulder, restriction in range of movement, and was unable to sleep or lie on that side. She was not able to perform normal functional aspects of her day to day living.
54Mr Chehata made the observation that the plaintiff had a “severe adhesive capsulitic picture evident on the left shoulder, with a relatively well-maintained right shoulder function”. The diagnosis of Mr Chehata was that the plaintiff had suffered a traumatic rotator cuff tear in the accident, with the subsequent complication and development of adhesive capsulitis over time, aggravated by her return to work. He considered that her symptoms and treatment requirements related to the injuries which he diagnosed, adding that the bursal-sided rotator cuff tear was likely to be progressive. He was of the view that the plaintiff did not have the capacity to return to pre-injury employment. Mr Chehata was also of the view that the plaintiff did not have the capacity to engage in any part-time employment, due to the severity of her pain, restriction in range of movement and potential implications of a bursal-sided rotator cuff tear and adhesive capsulitis. He considered her prognosis to be poor without further intervention. He believed that this would be required.
55Mr Chehata also expressed the view that calcific tendinitis commonly can evolve and continue into bursitis, which, in turn, can cause progressive tearing of a bursal-sided rotator cuff tear. This was aggravated by the return to work. The tear continued and the plaintiff now suffers from a bursal-sided rotator cuff tear and the development of severe adhesive capsulitis.
56Mr Chehata also stated that there is no doubt but that the injury occurred in relation to the work of the plaintiff for the defendant on 15 August 2017. He thought that the plaintiff required ongoing physiotherapy, hydrotherapy, a stretching regime, and at least two hydrodilatations. He was of the view that, depending on the plaintiff’s overall response, bursal-sided rotator cuff tears have a high likelihood of progressive tearing and that this would need to be assessed and probably repaired. He referred to a possible return to the care of Mr Large.
57Mr Chehata provided a second report to the plaintiff’s solicitors, this being dated 25 February 2021 and following an examination on the previous day. He noted that the plaintiff had ongoing pain down the left arm and, being left handed, was continuing to require regular Panadeine Forte (four tablets per day), and Endone at night intermittently. The plaintiff could no longer sleep on her left side or perform all her activities of daily living. She had moved out of her house due to financial stressors and was currently living in a suburb just outside of Bendigo. She was struggling to perform most activities of daily living. She was still markedly restricted, with ongoing and usual left shoulder symptoms. She was continuing to suffer ongoing capsulitis, which is likely to remain.
58Mr Chehata again expressed the view that the plaintiff had suffered a partial tear in her rotator cuff and subsequently developed adhesive capsulitis as a result of her work for the defendant. In answer to an enquiry as to her capacity to perform her pre-injury duties, Mr Chehata stated that he did not believe that the plaintiff would return to work on a part-time or full-time basis. He considered her condition likely to be a permanent impairment, describing the prognosis as poor. The plaintiff was struggling to perform the majority of her activities of daily living. The injury has affected all of her social, domestic and recreational pursuits. In answer to a question, Mr Chehata stated that the radiology confirms the partial tearing of the rotator cuff and capsulitis. The radiology correlates with the clinical presentation.
59The defendant has also had the plaintiff examined for medico-legal purposes.
60Dr Majid Rahgozar, consultant occupational physician, saw the plaintiff on 22 January 2018. Dr Rahgozar did not have available to him the radiological findings from the ultrasound of 23 August 2017. The plaintiff was about to return to work performing light duties, such as taking clients out for visits. Thus, to a considerable extent, this report has been overtaken by events. The plaintiff was seeing a physiotherapist. She had an upcoming appointment with Mr Large. The diagnosis of Dr Rahgozar was that the plaintiff was likely to have had some degenerative changes in her left shoulder, which could have been aggravated by the accident. She referred to the fact that, some time after the accident, the plaintiff had been holidaying in Bali and had there had a significant fall, resulting in a thoracic spine injury and a fracture of the right wrist. (This shall be discussed subsequently.) Dr Rahgozar thought that there was a significant presentation of chronic non-specific upper limb pain in the context of a likely concurrent mental health condition, opioid dependence and a central sensitisation. He put restrictions upon her work capacity and his overall diagnosis was of aggravation of pre-existing degenerative changes of the left shoulder. He expressed the opinion that her condition was still materially contributed to by her employment and that she was not fit for pre-injury duties. She did have a capacity for alternative duties, with restrictions.
61Dr Rahgozar provided a second report on 2 May 2018, having seen the plaintiff again on that day. On this occasion, the plaintiff stated that she had mild to moderate pain in the left shoulder anterior and superior aspects, which could be aggravated by lifting her arm at or above shoulder level and by internal and external rotation. She had some weakness. Her sleep was affected by pain when she rolled over to the left. She was taking anti-inflammatory medication twice a day and attending physiotherapy on either a weekly or fortnightly basis. She had returned to near-normal hours of restricted duties. Dr Rahgozar again expressed the opinion that the plaintiff had suffered aggravation of pre-existing degenerative changes in her left shoulder. He thought that her compensable injury had now resolved and that the ongoing pain and disability were likely to be related to her age, constitution and pre-existing degenerative changes. The possibility of a degree of a non-organic component also existed. She was not fit to return to her pre‑injury work in an unrestricted fashion. She had a capacity for restricted duties. He suggested treatment by way of simple analgesics and self-managed exercises.
62Associate Professor Anthony Buzzard, orthopaedic surgeon, saw the plaintiff on 26 November 2019, reporting to the defendant on that day. She was continuing to see Dr Rugara and had not seen other treaters, because she could not afford it. She was continuing to suffer from left shoulder pain extending down the front of the upper arm to the region of the elbow. She had had no trouble before August 2017. She was taking Voltaren three times a day and Endone once at night. Pain caused difficulty in sleeping. She described the fall which she had suffered on 1 September 2017 in Bali, in which she fractured her right wrist and her T12 vertebra. She had no trouble either with her right wrist or back now. At the time of seeing Associate Professor Buzzard, the plaintiff was still doing full‑time night shift “in pain”.
63Associate Professor Buzzard expressed the opinion that the plaintiff appeared to have suffered a rotator cuff tear, although he also noted that, at one stage, she was found to have calcific tendonitis. He stated that, whatever might be the case, it was reasonable to accept that there was a causal relationship between her present shoulder presentation and the work-related injury. He believed her condition to be stable, and indeed was prepared to make an assessment of impairment of the left shoulder pursuant to the AMA Guides to the Evaluation of Permanent Impairment.
64Dr Mary Wyatt, occupational physician, saw the plaintiff at the request of the defendant on 4 March 2021. The plaintiff gave to Dr Wyatt a history of events, including the fact that she had returned to work on restricted duties from January to June 2018, but “was basically pushed back to doing her normal job in August 2018”. She persisted with this for a few months, but her pain worsened and she could not continue beyond December 2018. She had been last reviewed by her surgeon in 2019 and her pain had not since abated. She described constant pain, with sharp pain associated with sudden use of the left arm. She could be woken with severe pain if she rolled onto her left shoulder in bed. She had modified her domestic duties, shopping and the like. She was taking Panadol Osteo in the morning, Panadeine Forte in the afternoon and Endone for the significant pain if she rolled onto her left shoulder during the night. Upon examination, movements of the left shoulder were quite limited. Grip strength was also diminished. She had tenderness over the left shoulder, both anteriorly and laterally, and there were signs of impingement.
65Dr Wyatt was of the view that the plaintiff’s problems had an organic basis and that the organic condition was the main component of her pain and symptomatology. She stated that calcific tendonitis was typically a self-limiting condition, which generally improves over a matter of years. If the problem is not abating, surgery can assist. Dr Wyatt accepted that the plaintiff had a continuing troublesome problem, with quite limited movement. In relation to the calcific tendonitis, the incident at work would plausibly have caused acute symptoms at the time. However, the condition would likely have developed regardless of that incident. Nevertheless, Dr Wyatt also stated that the accident appeared to have sparked the development of symptoms, there having been none previously. Accordingly, she would not call what occurred an aggravation of a pre‑existing problem. She found no evidence of a pain disorder, functional overlay signs, or symptoms indicating exaggeration. She thought that the plaintiff was not capable of doing her normal job and would require retraining to re-engage in the workforce. Disability care where there was no requirement of significant manual handling would be appropriate employment. Dr Wyatt considered that the plaintiff may be fit for work which did not require repeated outreaching, a lot of repetitive tasks with the left arm, or work above shoulder height with the left arm. Rehabilitation would be appropriate, but the plaintiff had now been out of the workforce for some time and had moved to Bendigo. This could have affected her focus in relation to re-engaging in work.

66Dr Wyatt provided a supplementary report of 11 March 2021 without seeing the plaintiff again. The purpose of this was that she had been forwarded a Vocational Assessment Report from Nabenet and asked for an opinion as to the suitability of work options described therein. She considered the plaintiff to be physically fit for full‑time work as an aged care receptionist, a hotel receptionist and a cleaning assistant/scheduler performing a role based at a computer. She noted that Nabenet recommended enhancing the plaintiff’s computer skills.
67Associate Professor Max Esser, orthopaedic surgeon, saw the plaintiff on 4 March 2021, reporting to the defendant on 11 March. The plaintiff gave a history of constant pain and discomfort in the left shoulder, with pain radiating to the left arm just above the level of the elbow. The pain was exacerbated by sleeping on the left side at night, lifting heavy objects and sometimes lifting light objects. Various daily activities, such as washing dishes, elevating the left upper limb above the shoulder and the like made the pain worse. The plaintiff often felt that she was constantly in pain. She was taking Panadeine Forte and Panadol Osteo, along with Endone on occasions. Associate Professor Esser carried out a physical examination, including range of movements. He did not think that the plaintiff had an impingement syndrome of the left shoulder. He had been provided with a considerable amount of radiological material. He expressed the opinion that the plaintiff did have an organic pain basis, but her symptoms were not associated with what appeared to be an almost normal range of shoulder joint movements for one of her age. He thought that she had some impairment of abduction of the left shoulder, but no specific impingement syndrome. He was of the view that she had a reasonably good functional and non-organic range of shoulder movements, but noted that there was significant limitation of abduction of the left shoulder. He did not think that she required further surgery.
68Associate Professor Esser also expressed the opinion that the findings on clinical examination correlated with the radiological investigations and that there were no inconsistent findings. He found it hard to be sure how much of the plaintiff’s current problem related to degenerative disease and how much related to her work. He expressed the view that there were lots of activities of daily living that would contribute to the degenerative features associated with the tendinopathy of the left shoulder, which was causing most of her symptoms. Overall, he thought it probable that there was some contribution from work to the plaintiff’s current condition, but most of that condition related to the effects of aging in a left hand dominant person. However, he believed that there had been some degree of work-related aggravation, although most of her current aggravation related to the effects of aging. He was of the view that there were not then any non-organic or psychologically based features. He did not think that she would be able to return to her pre‑injury duties. He was of the view that clerical work would be possible suitable employment, but nursing would be inappropriate. She could work on a full‑time basis performing light or modified duties. He noted that the plaintiff had very basic secondary school education.
69On 11 March 2021, Associate Professor Esser provided a supplementary report in relation to employment options detailed in a Vocational Assessment Report. He thought that she could work as an aged care receptionist. He also thought that she could manage tasks involved in being a hotel receptionist or managing bookings of cleaning jobs. This type of work could be done on a full‑time basis.
70The defendant also had the plaintiff seen by Dr John King, consultant psychiatrist, who reported on 19 November 2019. His is the only report from a psychiatrist or psychologist that was placed in evidence. As stated, Dr King considered the plaintiff to be a pleasant, friendly woman who cooperated fully with the interview. He found no features of depression, significant anxiety or any psychiatric disorder. There was no disturbance to the form of content of her thought. She did not have the symptoms of a diagnosable psychiatric or psychological disorder. Her Whole Person Psychiatric Impairment was 0 per cent.
71Turning to my conclusion as to the injuries suffered by the plaintiff, I appreciate that Mr Large was the treating orthopaedic surgeon, but I prefer and accept the opinion of Mr Chehata. Mr Chehata also is an orthopaedic upper limb surgeon, who appears to specialise in matters relating to the shoulder, elbow and wrist. He expressed the opinion that there was no doubt but that the injury occurred on 15 August 2017, the day of the accident. He has also referred to some aggravation by reason of the plaintiff’s return to work. He has explained how calcific tendonitis can evolve and continue into bursitis, causing the progressive tearing of a bursal sided rotator cuff tear. This seems to be a logical explanation for what has occurred. Furthermore, Mr Large’s description of the calcific tendonitis as being a new and different problem seems to be interwoven with the onset of new and “incredibly painful” symptoms, which could occur whilst a patient was at rest, engaging in activities or during employment. As stated, I regard the plaintiff as being an honest and reliable witness. She has described an increase in left shoulder pain after she returned to pre‑injury duties. There is no suggestion of some new and “incredibly painful” symptomatology. The records of the Hastings Family Medical Centre have also been set out in some length. There is no reference to some new and “incredibly painful” event or onset of symptoms occurring during the relevant period.
72In short, I do not accept the proposition that, whilst the plaintiff’s symptoms seem to have continued unabated and with some increase upon return to pre‑injury work duties, there has been some change in the cause of such symptoms, probably precipitated by an incredibly painful event.
73I would also point out that Associate Professor Buzzard, orthopaedic surgeon, examining on behalf of the defendant, took a history from the plaintiff that the pain is variable, but overall is static. He also expressed the opinion that, although at one stage the plaintiff was found to have calcific tendonitis, he thought it reasonable to accept that there was a causal relationship between her then current shoulder presentation and the work-related injury (he seeing her on 26 November 2019). It is of note that, in listing the medical and other material which had been considered by him, Associate Professor Buzzard included the report of Mr Large of 15 March 2019 and his clinical notes. It was in his report of 15 March 2019 that Mr Large specifically stated that the plaintiff was suffering from a new and different problem.
74I further note that Associate Professor Esser, also examining on behalf of the defendant, implicated employment, although also referring to the effect of aging. He was of the view that there was probably some contribution (from what occurred on 15 August 2017) to the plaintiff’s current condition. Certainly, he was not expressing the opinion that her symptoms were due to some new, different and intervening condition.
75Further, Dr Rugara, who was the plaintiff’s treating general practitioner over a considerable period, stated simply in his report of 9 January 2019 that the plaintiff’s work was the cause of her injury and her incapacity resulted from it.
76Accordingly, I am of the opinion that the plaintiff’s symptomatology and incapacity are not due to some different and intervening condition, but are a consequence of the accident. I prefer and accept the diagnosis of Mr Chehata for the reasons discussed above. It largely accords with that of Associate Professor Buzzard, namely a rotator cuff tear and calcific tendonitis.
77I am not of the opinion that the plaintiff’s injury and its consequences are the result of a pre‑existing condition. I am quite satisfied that the plaintiff had no symptomatology or restrictions relating to her dominant left arm prior to the accident. If there was some pre‑existing condition, and I am far from satisfied that there was, it had not been symptomatic prior to the accident.
78I am also satisfied that the consequences of injury from which the plaintiff suffers are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Mr Chehata has expressed the opinion that the plaintiff’s prognosis is poor without further intervention and, whilst he had no doubt that such would be required, the plaintiff seems to have no intention of undergoing same. Associate Professor Buzzard was prepared to make an assessment pursuant to the AMA Guides to Evaluation of Permanent Impairment, referring to her condition to being stable as defined. Associate Professor Esser has commented that the plaintiff does not require any further surgery. He was of the view that further surgery would be unlikely to be helpful for her. The plaintiff’s symptoms have now been present for a period of approaching four years. There is no indication that she will be undertaking any surgical procedures in the future. I am satisfied that the consequences of the injury from which she suffers are permanent within the meaning of the Act.
79There is no reliance upon paragraph (c) of the definition and hence consequences of a psychiatric or psychological nature will not be taken into account. However, I am of the view that these are minimal, if they exist at all. The only report from a psychiatrist or psychologist placed in evidence is that of Dr King. He stated that the plaintiff does not have symptoms of a diagnosable psychiatric or psychological disorder and that her impairment in this regard is 0 per cent. I might say that this accords with the impression made by the plaintiff in the witness box. Associate Professor Esser specifically stated that there were no signs of a functional overlay, psychologically based symptoms or exaggeration. In summary, I am of the opinion that there are no psychiatric or psychological consequences of any magnitude.
(f)     Other developments since the injury
80As referred to earlier, shortly after the accident the plaintiff went on a pre-arranged holiday to Bali. Whilst there, on approximately 1 September 2017, she had a fall in which she fractured T12 and her right wrist. Her wrist injury subsequently required internal fixation, which was performed after she returned here. The T12 fracture was managed conservatively and the fracture of the wrist was treated by open reduction and internal fixation surgery. I note that she told Associate Professor Buzzard about this fall and the subsequent treatment. She stated that, as at seeing him on 26 November 2019, she had no trouble with the right wrist, in which a titanium plate had been inserted, and no trouble with her back. Similarly, she described the fall in Bali and the treatment which she subsequently received to Dr Wyatt, indicating that both her wrist and back problems settled over time. Her only complaint was of having some back soreness after walking. While she also gave a history of what had occurred to Associate Professor Esser, he does not seem to have made any detailed inquiries concerning it and does not seem to have treated it as having any particular impact or relevance for the purposes of the present application.
81It would appear that the plaintiff was absent from her place of employment until approximately January 2018, when she returned on restricted duties and initially for limited hours. Whilst it was not entirely clear, it would appear that, from June 2018, she was performing light duties on her normal night shift. She claims that she was effectively “pushed back” to doing her normal job in August 2018. By December 2018, her pain had worsened considerably and she described to Dr Wyatt that she was nearly in tears concerning her condition. She ceased work at the end of 2018 and has not worked since.
82It would appear that essentially for financial reasons, including mortgage repayment difficulties, she sold her house at Crib Point and moved to Huntly, near Bendigo. She purchased a block of land there and is having a house built upon it. Her son is a carpenter and indeed the plaintiff is registered as an owner builder, she having engaged in that activity some years before. As I understand it, Huntly is just under 12 kilometres from central Bendigo. Her son had also performed the renovations of the Crib Point property before it was sold. The house at Huntly is almost at lock‑up stage and she is living in other premises with her partner. The plaintiff is registered at Centrelink and there have been some complexities in that regard due to the COVID situation.
(g)    Ruling
83Before turning to a discussion of loss of earning capacity and pain and suffering, I shall state what could be described as my general conclusions in relation to the plaintiff’s injury.
84I am satisfied that the pain and restrictions from which the plaintiff has continued to suffer are consequential upon and directly related to the accident. I do not accept the argument that the symptoms and restrictions from which she suffers are no longer related to the accident, but are produced by subsequent and unrelated pathology.
85I appreciate that this means that I am not accepting the opinion of the treating surgeon, Mr Large, and am preferring the opinions of two other orthopaedic surgeons, namely Mr Chehata and Associate Professor Buzzard. I am also preferring the opinion simply expressed by Dr Rugara, the plaintiff’s treating general practitioner.
86I am of the view that there is some force in the submission of Mr O’Sullivan to the effect that the opinion expressed by Mr Large in his letter to Dr Rugara of 21 January 2019 should be treated with some caution. This is in the context of Mr Large in essence saying that, whilst the original symptoms and restrictions in the plaintiff’s left shoulder may have been work-related, a new and non-work-related cause of her problems had arisen, effectively superseding the work-related consequences and becoming the sole cause of her incapacity. It is clear that, in his letter to Dr Rugara of 21 January 2019, Mr Large stated as follows:
“It is a difficult Medico-Legal situation and I need to focus on what I can achieve medically. She has a painful left shoulder. Recent tests have shown calcific tendonitis but the MRI scan one year ago, shows that this was not the case. Therefore this is a new cause for shoulder problems.”
87However, it is also clear that the ultrasound of the left shoulder performed on 23 August 2017, performed in excess of 18 months prior to the letter of Mr Large referred to above, includes the following:
“Anterior supraspinatus tendon calcification measuring 13 x 2 mm, associated with insertional enthesiopathy. Calcification appears “hard”.”
88The conclusion of the radiologist was as follows:
“Anterior supraspinatus tendon calcification. The calcification has a “hard” appearance.”
89The MRI of the left shoulder of 4 January 2018 makes no reference to calcific tendonitis. The MRI report of 25 January 2019 is addressed to Mr Large as in a heading “Clinical Notes”, after which there are the following words:
“Ultrasound suggests calcific suprasinatus tendinopathy. ? New disease process.”
90However, the x‑ray of the left shoulder of 25 January 2019 showed no convincing subacromial space calcification. The report of the MRI scan performed on the same day contains no specific reference to calcification. I would also point out that this report post-dates the letter of Mr Large to Dr Rugara referred to above, which referred to recent tests showing calcific tendonitis and this being a new cause for shoulder problems. Thus, we have a situation where a radiological report following an ultrasound on 23 August 2017 shows anterior supraspinatus tendon calcification which appeared “hard”. An MRI scan of the shoulder performed on 4 January 2018 makes no reference to calcific tendonitis. A further MRI scan on 25 January 2019 makes reference to an ultrasound which suggested calcific supraspinatus tendinopathy (the date of the ultrasound is not included), but an x‑ray taken on that day shows no convincing subacromial space calcification and there is no reference to it in the MRI scan report. In the meantime, and four days prior to those radiological investigations, Mr Large has referred to recent tests showing calcific tendonitis and suggesting a repeat MRI scan (probably that performed four days later).
91This is all more than a little confusing. The bottom line is that I agree with Mr O’Sullivan that some doubt must exist as to the foundation for Mr Large’s opinion that the calcification represents a new and different problem, causing a request for a further MRI scan, which would give the best representation of what was new and what was old. What does seem clear is that the ultrasound of 23 August 2017 shows that calcification had existed and had existed within nine days of the accident.
92It is also to be remembered that, in his report to the Accident Compensation and Conciliation Service of 15 March 2019, Mr Large specifically stated that the calcific tendonitis which he believed that the plaintiff had when he saw her on 21 January 2019 (although whether this was confirmed by subsequent radiology is a moot point) was “a new and different problem from that which I previously treated her for in December 2017”. Thus, there can be no suggestion that, when referring to a “new” condition, Mr Large is referring to diagnoses or conditions that arose at the time of the accident.
93The opinions of Mr Chehata and Associate Professor Buzzard seem to me to be clear and I prefer them. I am not of the view that the original and accident-related symptomatology effectively disappeared and was replaced by calcific tendonitis that was not accident-related. There is no suggestion but that the plaintiff’s symptoms have been consistent throughout, apart from the fact that an analysis of the available radiological reports seems to cast considerable doubt over the proposition advanced by Mr Large.
94I might add that I also prefer the opinions of Mr Chehata and Associate Professor Buzzard to that of Associate Professor Esser. He thought that there had been some degree of work-related aggravation, but that most of the plaintiff’s current aggravation related to the effect of aging, as opposed to what occurred in the accident. Given that the plaintiff was symptom-free prior to the accident and has not been without symptoms since, I find it somewhat difficult to accept the opinion of Associate Professor Esser and prefer the other opinions to which I have referred.
95I now turn to the question of whether the consequences of the accident are sufficient to satisfy the statutory requirements.
(i)     Loss of earning capacity
96I am satisfied that the plaintiff has discharged the burden of proof in this regard.
97The plaintiff is aged 59 years. She has had what can only be described as minimal education, this being to Year 8 level. Her employment history prior to becoming an aged care worker was essentially in unskilled and manual occupations. She had worked as a cleaner, performed factory work, worked on farms and in supermarkets. She had done factory work where car wiring was manufactured. She had worked at a strawberry farm and an egg farm. She had also worked as a housekeeper and a school cleaner. Thus, prior to her becoming an aged care worker, she had performed various unskilled and manual occupations consistent with her lack of education. In 2006 she obtained her Certificate III in Aged Care. Her duties included assisting patients with toileting, moving patients and replenishing shelves and drawers. She has sworn that her work could be heavy and repetitive at times. I accept that virtually all of the occupations in which the plaintiff has engaged would require the use of two hands and represented physically demanding work.

98The plaintiff’s computer skills are quite limited. Completion of her Certificate III in Aged Care did not require computer use. There was no need to use a computer at all when she was employed by the first defendant. All documentation was hand written. The course which she undertook in order to obtain her Certificate III involved completion of assignments by hand writing. I would refer to the history obtained by Nabenet and referred to in its report of 4 March 2021 to the defendants.
99Dr Slesenger, specialist occupational physician, who examined the plaintiff at the request of her solicitors, expressed the following opinion:
“Taking into consideration Ms Rickard’s age (58), her current symptoms and functional limitations, her past employment history, her computer skills, her qualifications, her rural residential location (Huntly, near Bendigo) and her driving limitations, she is unlikely to be able to return to work in a role for which she has suitable training and experience on a consistent and reliable basis.”
100Dr Slesenger qualified that opinion on the basis that the restrictions could not be regarded as permanent as there were opportunities for further treatment. However, he also expressed the view that the plaintiff’s prognosis had to be guarded, given the length of her impairment and disability and her poor response to treatment to date. He referred to the fact that she may be a candidate for further surgery. However, there is no indication that the plaintiff anticipates or is prepared to undergo further surgery. Indeed, in her affidavit of 9 December 2019, the plaintiff swore that she had no intention of having surgery. The plaintiff also stated in cross-examination that it is still the case that she has no intention of having any surgery.
101Given the plaintiff’s clear expressed intention in relation to any further surgery (and she complained of very considerable pain following the hydrodilatation), the opinion of Dr Slesenger that the plaintiff was unlikely to be able to return to work on a consistent and reliable basis seems to me to be accurate and I accept it.
102Mr Chehata, orthopaedic upper limb surgeon, has stated that, as a consequence of the injury, the plaintiff does not have the capacity for any part-time employment due to the severity of her pain, restriction in range of movement and the potential implications of a bursal sided rotator cuff tear and adhesive capsulitis. He also referred to further intervention and I would repeat the above observations to the effect that the plaintiff has no intention of undergoing any further surgery. I would also point out that Mr Chehata stated that the plaintiff would need at least two further hydrodilatations and that is the form of surgery which the plaintiff found particularly painful.
103Associate Professor Max Esser, orthopaedic surgeon examining on behalf of the defendant, stated that nursing would be an inappropriate occupation for the plaintiff “but any clerical work would be possible”. He considered three positions suggested in a Vocational Assessment Report (presumably that of Nabenet) to be suitable. However, each of these fits the description of clerical work. They do not impress me as occupations for which the plaintiff has ever demonstrated any aptitude or for which she has ever had appropriate education or training. She may have performed some basic clerical duties such as filing, photocopying and collecting menus in the first half of 2018, but these seem to be significantly different duties from the type of work required for the three possible employments suggested by Nabenet and the relevant skills required. The plaintiff also described her duties as including such things as putting out a jug and a towel. She referred to being in the office and handing out newspapers. The plaintiff also stated that, when performing light duties in 2018, the type of basic clerical tasks that she was performing included picking up folders and that even such light duties hurt – see T37. When asked whether she thought about what kind of work she could do, she replied that she did not know what she could do. This was a proposition which she repeated, saying “I’m left-handed, I don’t know what I can do” – see T43.
104I might add that I accept that the plaintiff’s input as an owner builder of the house at Huntly has been very limited, particularly physically. I note that her previous dwelling at Crib Point, which was constructed with her as the owner builder, was completed in excess of 20 years ago. Prior to her limited involvement with the house at Huntly, she has built or been involved in the building of no others during that period.
105In relation to the jobs suggested to her, the plaintiff stated that she has no computer skills, other than being able to send an email. She does not know how to operate programs and the like – see T64. In short, the light duties which the plaintiff performed with the first named defendant during the first six months of 2018 seem to me to bear little resemblance to the jobs suggested by Nabenet and considered by Dr Wyatt and Associate Professor Esser.
106In re-examination, the plaintiff referred to her constant shoulder pain and the fact that she cannot concentrate because of it. She also said that Centrelink or any similar organisation had not offered her a course to do, discussed courses, sent her any jobs to look at or the like. She gets phone calls from Centrelink inquiring as to how she is and, when she says that her shoulder is sore, there is very little further discussion.
107When all of the above is taken into account, and bearing in mind that I accept the plaintiff as a witness of truth, I am of the view that the plaintiff has no capacity for work. I have reached that conclusion bearing in mind the factors referred to by Dr Slesenger and which are to be considered in relation to any suitable employment. Her extremely limited education, work experience, skills and the like cause me to reach the conclusion that she has no capacity for suitable employment. Accordingly, she has discharged the burden of proof in relation to loss of earning capacity.
(ii) Pain and suffering
108Given that the plaintiff has discharged the burden of proof in relation to loss of earning capacity, there is no necessity for me to make a specific finding in relation to pain and suffering. However, I am of the view that she would have discharged the burden of proof in that regard in any event.
The plaintiff is in constant pain emanating from the shoulder of her dominant left arm. She has given evidence, which I accept, that even such simple things as pressing the toilet button with her left hand or washing and drying dishes cause an exacerbation of pain. Her sleep is disturbed. She wakes about once an hour when she rolls on her left side, which causes increased pain in the shoulder. She takes medication such as Panadeine Forte (three tablets per day) and Panadol Osteo (six tablets per day). She also takes Endone two to three times per week of a night. I accept that her shoulder injury and the resultant pain interfere to a great extent with her daily living. In short, were it necessary, I find that she has also discharged the burden of proof in relation to pain and suffering. Leave is granted accordingly.
109

Conclusion
110The plaintiff is successful. She has discharged the burden of proof in relation to both loss of earning capacity and pain and suffering. I shall hear the parties as to any ancillary orders that are required.

[2021] VCC 1207

27 Aug 2021