Ristevski v Demos Property Services (Australia) Pty Ltd & Anor

[2010] VCC 169

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-01750

MARA RISTEVSKA	Plaintiff
v
DEMOS PROPERTY SERVICES (AUSTRALIA) PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

---

JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	5 and 9 March 2010
DATE OF JUDGMENT:	12 March 2010
CASE MAY BE CITED AS:	Ristevski v Demos Property Services (Australia) Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VCC 0169

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether injury to the right shoulder occurred in the course of the plaintiff's employment – whether a certificate of the medical panel relevant to statutory benefits is binding upon the court pursuant to section 68(4) of the Act – Kozma Engineering Pty Ltd v Pupic [2009] VSCA 313 – whether the pain and suffering consequences were least very considerable – whether the loss of earning capacity consequences were very considerable – whether the plaintiff had discharged the onus relevant to loss of earning capacity consequences pursuant to subsection (19)(b) and (38)(g) – leave granted for pain and suffering: section 134AB(38)(c), (g) and (h).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Stanley QC	John Dellios & Associates Pty
For the Defendants	Mr R Meldrum QC with	Thomson Playford Cutlers
Mr P Montgomery
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 27 April 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the first defendant.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.

3          Mr R Stanley of counsel appeared for the plaintiff and Mr R Meldrum QC and Mr P Montgomery of counsel appeared for the defendants.

4          The body function which the plaintiff says has been lost or impaired is the right upper limb.

5          The following evidence was adduced during the hearing:

• The plaintiff gave evidence and was cross-examined;

• The plaintiff tendered her Court Book ("PCB"), pages 20-27D; 45-51; 56- 152: Exhibit A;

• The defendants tendered their Court Book ("DCB"), pages 2-157 and 168- 203: Exhibit 1;

• The defendants tendered the subpoenaed file of Dr Ristevski, general practitioner: Exhibit 2

The Statutory Scheme

6          The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.

7          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)	Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)	Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)	In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners Pty Ltd & Ors v Podolak, at paragraph 33

[3]             Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

[4] (1994) 1 VR 436

8          I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff’s Background and the Injuries

9          The plaintiff was born in Macedonia on 30 March 1957. She is a married woman with two children.

10        The plaintiff obtained modest education while in Macedonia. She completed four years of primary school. Thereafter she worked on the family farm.

11        The plaintiff migrated to Australia in 1972. She married in 1974. Her English is modest at best. She gave her evidence through an interpreter. Whilst Mr Meldrum did not press the issue of the plaintiff's competence with English strenuously, he did refer to occasions when the plaintiff was interviewed, with the interviewer noting that the plaintiff had competence in English sufficient to be understood.

12        The plaintiff commenced employment in 1997 with a company which had a cleaning contract for 100 Queen Street, Melbourne. The first defendant acquired that company.

13        Generally speaking, the plaintiff's work involved removing rubbish from workplaces and general cleaning. She was required to perform the duties she described in her first affidavit in a three-hour period.[5]

[5]             PCB 21-22

14        The plaintiff described the occurrence of her injuries in the following way:

"I first developed pain in my right arm on 3 August 2005. On that day I noticed a gradual onset of pain in my elbow and forearm whilst lifting the full bin which was heavy as it contained food scraps and bottles. I had to empty it this bin into the large bin. It was one of a number of bins that I was emptying, and I was working rapidly. I was surprised at its weight. I continued working but a short time later whilst dusting and wiping [a] desk I felt a click in my wrist and a sudden increase in my pain. At that time my wrist and forearm felt swollen. At that time the pain was severe in my wrist and going up my forearm. It was some time later before the pain also became more obvious further up my arm, in particular in my shoulder."[6]

[6]             PCB 22

The Plaintiff's Medical Treatment

15        The plaintiff saw Dr Ristevski on 4 August 2005. He recorded that the plaintiff told him that she suffered pain to her elbow and forearm which was of gradual onset. It became more severe following dusting work on the day prior to her first presentation to him.

16        Dr Ristevski referred the plaintiff to have an ultrasound of her right elbow and forearm.[7] He was of the opinion that the ultrasound demonstrated lateral epicondylitis and distal forearm tendonitis. He treated her with the prescription of medication and referral to physiotherapy.

[7]             PCB 73

17        At a later date the plaintiff complained to Dr Ristevski of also suffering pain in her right shoulder. He referred her to have an ultrasound.[8] He was of the opinion that the ultrasound demonstrated a partial thickness tear of the supraspinatus tendon. He continued her treatment by way of medication and referral to physiotherapy.[9]

[8]             PCB 74

[9]             PCB 79-81

18 Subsequently, Dr Ristevski referred the plaintiff for a further ultrasound of her right shoulder, right elbow and right wrist and forearm on 9 May 2006,[10] and an ultrasound of her right shoulder on 15 October 2009.[11]

[10]           PCB 75

[11]           Exhibit 2

19        Dr Ristevski referred the plaintiff to Mr Kiellerup, orthopaedic surgeon. The plaintiff first saw Mr Kiellerup on 22 June 2006. He recorded that the plaintiff felt a click in her right forearm and wrist whilst dusting with a feather duster. She subsequently suffered swelling in her right wrist.

20        Mr Kiellerup was provided with the radiological investigations which had been undertaken prior to him first seeing the plaintiff. He referred the plaintiff to have an x-ray and a bone scan.[12] He was of the opinion that they showed degenerative joint disease in the right acromioclavicular joint.

[12]           PCB 77 and 78

21        Mr Kiellerup referred the plaintiff to have an ultrasound-guided injection of cortisone and local anaesthetic into her acromioclavicular joint. It was undertaken on 18 July 2006.[13] It did not afford the plaintiff any long-term relief. Dr Ristevski referred the plaintiff back to Mr Kiellerup, who saw her again on 12 February 2008.

[13]           PCB 76

22        Mr Kiellerup referred the plaintiff to have an MRI scan which was taken on 19 February 2008.[14] He was of the opinion that it demonstrated acromioclavicular joint osteoarthritis, and synovitis with a degree of subacromial bursitis. He last saw the plaintiff on 30 June 2008.

[14]           PCB 102

23        Mr Kiellerup was of the opinion that the plaintiff was suffering from arthritis affecting her right acromioclavicular joint with a degree of subacromial bursitis. He understood that she was not working at the time when he last saw her. He was of the opinion that the plaintiff might have been fit for some alternative duties, but that she would not be fit to undertake any heavy lifting or overhead work, and would not be able to carry anything heavy for a prolonged period of time.

24        Mr Kiellerup offered the plaintiff a second cortisone injection and an operation to decompress the subacromial space and excise the outer end of her clavicle. The plaintiff told him that she did not want to pursue either of those forms of treatment.[15]

[15]           PCB 99-101

25        Dr Ristevski continues to treat the plaintiff. He prescribes her Tramadol for pain relief. In the past he has prescribed her other painkilling and anti- inflammatory medication. She has not tolerated medication well, suffering gastric problems.[16] Mr Meldrum referred Dr Ristevski to his clinical notes, and in particular, to the entries dated 4 November 2009, 17 October 2009 and 16 June 2009 to demonstrate that the prescription of medication has been intermittent. That would appear to be the case.[17]

[16]           Transcript 50

[17]           Exhibit 2 and Transcript 59-62

26        As a consequence of suffering injuries to her right shoulder, forearm and wrist, the plaintiff said that she has suffered pain and interference with her capacity to undertake social, domestic, recreational and work activities.[18]

[18]           PCB 24-25 and 27B-27D

The Issues

27        The issues raised by the defendants essentially are as follows:

• The claimed injury to the right shoulder did not occur in the course of the plaintiff's employment with the first defendant.

• The certificate of opinion of the Medical Panel dated 28 September 2008 is binding upon the Court pursuant to section 68(4) of the Act.

• The plaintiff's injuries no longer have any relationship with her employment with the first defendant.

• Whatever consequences were suffered by the plaintiff they are contributed to by both psychological or psychiatric injury, as well as physical injury. Section 134AB(38)(h) provides that the psychological or psychiatric consequences of a physical injury are not to be taken into account in a claim under paragraph (c).

• If the plaintiff's injuries were suffered by her in the course of her employment then neither the pain and suffering consequences or the loss of earning capacity consequences meet the statutory tests.

The Medical Panel

28        Mr Meldrum submitted that the certificate of opinion of the Medical Panel[19] is binding upon the Court.

[19]           DCB 84

29        The Medical Panel was asked two questions. The first was the nature of the plaintiff's medical condition relevant to the claimed injury, and the second was whether the plaintiff's incapacity for work resulted from or was materially contributed to by the claimed injury.

30        To the first question the Medical Panel said that the plaintiff was not now suffering from any medical condition to her right shoulder, arm or hand relevant to any claimed injury, and that she was suffering from osteoarthritis of the right acromioclavicular joint which is constitutional in nature and not relevant to any claimed injury.

31        To the second question, the Medical Panel said that any incapacity for work no longer resulted from, or was no longer materially contributed to by the claimed injury.

32 The questions must have been referred to the Medical Panel regarding the plaintiff's entitlement for statutory benefits, and not with respect to the plaintiff's application for serious injury pursuant to section 134AB of the Act.

33        That must be the case because the certificate of opinion is dated 28 September 2008. The Originating Motion by which this proceeding was commenced was filed on 27 April 2009.

34 The purpose behind a referral to the Medical Panel is highly relevant to whether it is binding on the Court pursuant to section 68(4) or not. This very issue has been ventilated on two occasions before the Court of Appeal.

35        In Kozma Engineering Pty Ltd v Pupic,[20] the very same submission was made before a Judge of this Court who held that because the referral to the Medical Panel concerned that plaintiff's entitlement to statutory benefits, it was not binding. The trial judge referred to Pope v Walker & Sons Pty Ltd[21] as authority for that proposition.

[20] [2009] VSCA 313

[21] (2006) 14 VR 435

36        The Court of Appeal disposed of the submission by approving of the reasoning of the trial judge, and approving of the ratio in Pope v Walker & Sons Pty Ltd, and observed:

“The judge rejected that distinction as untenable and so do we. The ratio of Pope was that a Medical Panel opinion on a medical question referred to the panel for the purposes of an application for statutory compensation is not binding on the court for the purposes of an application for leave to institute proceedings pursuant to s.134AB. As the judge below rightly held, the principle applies equally whether the referral was for the purposes of determining whether a worker was entitled to compensation or for the purposes of determining whether an entitlement to compensation ought be terminated.”[22]

[22]           at paragraph 15

37        And later it also observed:

“But until and unless the court made a binding determination that the worker was not entitled to compensation, the fact that a Medical Panel has expressed an opinion in answer to a question (referred for the purposes of determining the worker’s claim for compensation) that the worker was not entitled to compensation, would not be binding for the purposes of the application under s.134AB. As was held in Pope, the Medical Panel opinion would only be binding on the court for the purposes of a s.134AB application, if expressed in answer to a question referred to the panel pursuant to s.134AB for the purposes of determining the s.134AB application."[23]

[23]           at paragraph 19

38        I have no hesitation in rejecting the submission out of hand. It never had any merit and it should never have been put.

Causation - The Right Shoulder Injury

39        Mr Stanley submitted that I should accept the plaintiff’s evidence that whilst the injuries to her right elbow, forearm and wrist were her dominant concern in the period shortly following 3 August 2005, that I should otherwise accept her evidence that she also suffered pain in her right shoulder consistent with her suffering an injury in the course of her employment and also on 3 August 2005.

40        Mr Stanley referred me to the plaintiff's affidavit in which she made her position clear. She said that as a result of the work she undertook on 3 August 2005 she suffered an injury to her right forearm and wrist. She said that it was some time later that she experienced pain more obviously and further up her arm and into her right shoulder.[24]

[24]           PCB 22 at paragraph 7

41        The plaintiff reported the incident of 3 August 2005. Her supervisor recorded the plaintiff's account of the incident on a cleaning incident report on the letterhead of the first defendant as follows:

"Mara Ristevska. 8:20 p.m. Told me she was to tryn to contact me. I did not receive any calls. She said she was dustn on L18. She felt something click. She didn't hit nothin. It was red, swelln, + a little bruised."[25]

(sic)

[25]           PCB 145

42        Unfortunately, Dr Ristevski misplaced the plaintiff's medical records prior to 2007 when he moved his practice from Epping to Melton.[26] He was unable to categorically say whether the plaintiff made a complaint of pain in her right shoulder prior to the occasion when he referred her to have an ultrasound of her right shoulder which was taken on 10 March 2006, some six months later.

[26]           Transcript 49

43        However, Dr Ristevski was not prepared to discount that there was a likelihood that the plaintiff had complained of pain in her right shoulder on the date upon which he decided to refer her for the ultrasound:

"Q:	You make a note on p.80 in the first full paragraph, ‘Mrs Ristevska complained of ongoing pain in her right elbow and forearm. She also complained of right shoulder pain, then was referred to an ultrasound examination’. Now, with your clinical practise it's likely isn't it that the complaint about the right shoulder was a short time before the reference for the ultrasound?---
A:	It would be before the ultrasound, that is correct.
Q:	And - my language is - you don't delay in these things. You don't wait a month before you get an ultrasound?---
A:	It depends on the clinical situation. If it's a - if we suspect a minor problem that doesn't need investigation and then they re-present subsequently with in correct symptoms then it may be a time before we do it. If it's more significant then we'd send them virtually immediately and then it would depend on how much time it took them to organise the ultrasound.
Q:	We all suffer from not having your notes at the time so we have to go on what you said. You again don't record any restriction of movement in the right shoulder. You merely record a complaint of right pain, right shoulder pain?---
A:	That is correct.
Q:	Had it been accompanied by a restriction of movement, it is likely that you would have referred to that in this report?---
A:	Well, yes, generally one would expect that to be in there but it's not included in there.
Q:	And that would follow your general practise?---
A:	Generally we note down what we find.
Q:	In making such a report you would generally have reflected the note?---
A:	One would hope to do that, yes.
Q:	The absence of anything other than that there was subsequently, on a time unknown and before an ultrasound a complaint of pain would indicate that there were no other signs by way of restricted range of movement?---
A:	Not necessarily. I mean it may have not been included in the report but that does not mean it may not have been there."[27]

[27]           Transcript 78-79

44        The purpose of the cross-examination was to demonstrate the probability that the plaintiff complained of right shoulder pain shortly before Dr Ristevski referred her to have the ultrasound.

45        Whilst his answers, unaided by the plaintiff's clinical records prior to 2007, are equivocal on the issue as to when the plaintiff first made a complaint of right shoulder pain, I infer from Dr Ristevski's answers that he did not accept that the first complaint of right shoulder pain occurred shortly prior to his referral of the plaintiff to have the ultrasound.

46        Dr Ristevski was quite clear that if there was a complaint of right shoulder pain there would need to be an appearance of clinical significance to justify a referral to have an ultrasound. I infer that the mere complaint of right shoulder pain with nothing more would not be sufficient justification upon which such a referral would occur.

47        Mr Stanley submitted that the most potent piece of evidence which corroborated the plaintiff's case that the right shoulder injury occurred in the course of her employment was the examination of her by Dr Wallin, consultant in occupational health and safety rehabilitation.

48        Dr Wallin examined the plaintiff on 15 September 2005 for the defendants.[28] The examination occurred some forty two days after the plaintiff suffered the injuries to her right elbow, forearm and wrist.

[28]           DCB 84A - 84I

49        Dr Wallin obtain the following history from the plaintiff:

"At about 7.45 pm when she was dusting desktops etc., she claimed that she experienced the onset of sharp pain in her right lateral wrists below the base of the thumb, as well as in the lateral elbow, that is on the other side of the arm. She also claimed that she developed pain in her right shoulder."

50        This history demonstrates that there was an acute injury associated with the plaintiff dusting desktops. The plaintiff did not tell Dr Wallin that the pain in her right shoulder occurred at the same time or as acutely as the injury to her elbow and wrist. It is abundantly clear that the plaintiff intended to convey to him that the right shoulder pain "developed", which I infer means that it came on after the acute injury.

51        On examination, Dr Wallin found a full range of right shoulder movements. At the time when he conducted that examination the plaintiff claimed anterior capsule discomfort at extremes and also with local pressure. He concluded that clinically the plaintiff showed some degree of right shoulder joint anterior capsulitis.

52        It seems to me that there is relatively contemporaneous evidence that the plaintiff did suffer an injury to her shoulder on or about 3 August 2005 which was not immediately apparent, but became apparent in a fairly short space of time.

53        It also seems to me that the conclusions that are open on the evidence I have just reviewed, and indeed, the conclusions I have reached are:

• the cleaning incident report demonstrates that a traumatic incident occurred at least to the plaintiff’s right forearm or wrist resulting in reddening, swelling and bruising;

• the plaintiff probably complained of pain in her right shoulder to Dr Ristevski at an early stage and well before he referred her to have the ultrasound;

• the complaints made by the plaintiff were probably not of clinical significance as far as Dr Ristevski was concerned, which was the reason why the referral to have the ultrasound did not occur until a short time prior to 10 March 2006;

• the fact that the plaintiff reported to Dr Wallin that her right shoulder pain "developed" is consistent with what the plaintiff has deposed to in her first affidavit, that it was some time later that the pain became more obvious and then affected her right shoulder;

• the fact that Dr Wallin found clinical evidence of a right shoulder injury some forty two days after 3 August 2005 is consistent with the plaintiff having suffered a problem with her right shoulder at some time in between 3 August 2005 and 15 September 2005 when he examined her; and

• it is probable that the plaintiff made increasing complaints of pain to Dr Ristevski which led him to conclude that there was a clinical problem with the plaintiff’s right shoulder requiring investigation by ultrasound on 10 March 2006.

54        The Court of Appeal has observed on a number of occasions that the role of the trial judge is to take into account all of the evidence.[29] It is not a matter of looking at the plaintiff's oral evidence in isolation, nor indeed to look at any evidence in isolation, but rather to analyse all the evidence in determining how a question which arises for consideration should be answered.

[29]           Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17, per Ashley JA, at paragraphs 47-49; Cakir v Arnott [2007] VSCA 104, per Neave JA, at paragraph 47; and Grace v Elmasri & Transport Accident Commission [2009] VSCA 111, the Court, at paragraph 136

55        The evidence which I have analysed leads me to conclude that the plaintiff did suffer an injury to her right shoulder which developed over time to the point where Dr Ristevski considered it to be of such clinical significance that it warranted referral for an ultrasound.[30]

[30]           Mr Stanley relied upon the second defendant's acceptance of liability of the plaintiff’s section 98C claim as a complete answer to the submissions made by Mr Meldrum. Given the findings I have made, it is unnecessary to me to consider that submission, however, it seemed to me that the acceptance of liability was an admission of significance consistent with what Ashley JA said in Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 (31 August 2006)

56        That evidence also leads me to conclude that the attack upon the plaintiff's reliability as a witness is partly ill-founded. My reasons for qualifying that conclusion is that I must deal with the attack made by Mr Meldrum upon the plaintiff's account of just what occurred on 3 August 2005. I will deal with that in some detail below.

57        I do not consider that the plaintiff's credit in relation to the work she was doing leading up to 3 August 2005, and actually what occurred resulting in her suffering a right shoulder injury can be impeached in the way and to the extent contended for by Mr Meldrum.

3 August 2005 - The Incident

58        Mr Meldrum submitted that I should not accept the plaintiff's injury occurred as a consequence of her lifting a heavy bin containing food scraps and bottles, and then subsequently felt a click in her right wrist while dusting, followed by sudden pain in her right wrist and forearm.

59        Mr Meldrum submitted that if the incident occurred in that way then the plaintiff would have given a consistent history to persons who asked her to recount what incident occurred.

60        Mr Meldrum submitted that the consistent account given by the plaintiff was that the injuries were precipitated by dusting. In particular, he referred to the following histories: Dr Brown, occupational physician;[31] Dr Stern, psychiatrist;[32] Dr Poppenbeek, consultant in occupational medicine;[33] Dr Kostos, rheumatologist;[34] Dr Wallin,[35] and Mr Kiellerup.[36]

[31]           DCB 27

[32]           DCB 31

[33]           DCB 35

[34]           DCB 62

[35]           DCB 84A

[36]           PCB 99

61        The submission made by Mr Meldrum is not entirely correct. Others recorded histories which were somewhat different from those just referred to: Dr Ristevski recorded that the plaintiff was undertaking repetitive work with the right upper limb suffering the gradual onset of pain and more severe pain following dusting work;[37] Dr Entwisle recorded the development of pain in the plaintiff’s right arm occurring in the course of her undertaking her normal duties;[38] Mr Weaver, orthopaedic surgeon, recorded that the plaintiff was picking up some rubbish when she experienced pain in her right wrist, and when dusting she felt a click in her right wrist and more pain;[39] Mr Jones recorded that the plaintiff lifted an object and felt a sudden clicking sensation in her right wrist joint;[40] Dr Lefkovits, consultant physician, recorded that the plaintiff was performing her normal duties collecting rubbish when she heard a clicking sound in her right wrist;[41] and Dr Turecek, psychiatrist, recorded that the plaintiff was shifting some rubbish when she developed problems with her right wrist and a click in the wrist, following which she suffered soreness and swelling.[42]

[37]           PCB 79

[38]           DCB 41

[39]           DCB 46

[40]           DCB 55

[41]           DCB 68

[42]           DCB 79

62        Ms Moffet, physiotherapist,[43] obtained an entirely different history from anyone else. She recorded that the plaintiff felt pain when she was pulling a bin liner out of a bin.

[43]           DCB 91

63 Mr King, orthopaedic surgeon,[44] and Mr Brearley, orthopaedic surgeon,[45] recorded a history of the plaintiff lifting a heavy bin at the time when she suffered injury.

[44]           PCB 106

[45]           PCB 112

64        It is obvious from the foregoing that the plaintiff did not give a consistent history when a comparison is made with what she said in her first affidavit.

65        However, the common denominators point to the plaintiff working as a cleaner; undertaking manual work; probably involved in emptying small bins, and probably undertaking dusting work on 3 August 2005.

66        It is the first part of the description given by the plaintiff which Mr Meldrum submitted is untrue, and which I should reject out of hand given the number of prior inconsistent statements.

67        Mr Stanley, on the other hand, submitted that it is probable that the plaintiff did lift a bin before she undertook any dusting and that it probably weighed something approaching 10 kilograms. He referred to a worksite assessment undertaken by Dr Poppenbeek on 26 July 2006. In the course of inspecting the duties which the plaintiff was required to undertake, he noted that lifting was required mostly of about 5 kilograms or less, but occasionally higher.[46]

[46]           DCB 38

68        Mr Stanley submitted that the criticism made by Mr Meldrum of the plaintiff’s estimate that the bin she lifted probably weighed about 10 kilograms was fanciful, was a criticism that could not be sustained, given the fact that the plaintiff gave an estimate of the weight the bin, and Dr Poppenbeek confirmed that the bins might way more than 5 kilograms.

69        The fact that the plaintiff has given different accounts of the occurrence of the incident does cause me some concern as to whether the incident did occur in the way described by the plaintiff. However, that doubt does not go so far as to undermine the finding I made earlier that the plaintiff suffered an injury to her right shoulder in the course of her employment with the first defendant.

70        The essence of what I am required to determine in the course of a trial of this kind is to determine, among other things, whether the plaintiff has suffered a compensable injury. That does not necessarily require me to make a finding of the precise mechanism of the injury so much as whether the activities on which the plaintiff was engaged materially contributed to the occurrence of her injuries.[47]

[47]           Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, per Ashley JA, at paragraphs 51-78

71        I do not consider it necessary, therefore, to determine whether the incident of 3 August 2005 occurred in precisely the way described by the plaintiff in her first affidavit, or whether it occurred only as a consequence of dusting or removing a bin liner from a bin. The precise way which the incident occurred is really a matter for the trial of the principal proceeding and the determination whether the work undertaken by the plaintiff was in breach of the duty of care owed by the first defendant to her.

The Medical Opinions

72        Dr Ristevski,[48] Mr King,[49] and Mr Brearley[50] accept that the plaintiff suffered compensable injuries to her right shoulder, elbow, forearm and wrist, and that she is unfit for suitable employment.

[48]           PCB 92-97

[49]           PCB 109-110

[50]           PCB 115-118

73        The other medical opinions vary. The following is a short summary of them:

• Dr Wallin was of the opinion that the plaintiff was suffering from right lateral distal forearm tendinitis, right lateral epicondylitis and mild right anterior shoulder capsulitis. At the time of his examination on 15 September 2005, he considered the plaintiff had no capacity to undertake her pre-injury employment; quite limited capacity to use her right arm, but capacity to engage and participate in a return to work plan.[51]

• Dr Brown’s opinion is of little value because he obtained a history of pain over the lower forearm and wrist only. He was of the opinion that the plaintiff was suffering from tendonopathy of the right limb. She did not have a capacity to return to her employment at the time he examined her on 30 January 2006, but it would appear he anticipated that she would have a capacity to return to employment.[52]

• Dr Poppenbeek was of the opinion that the plaintiff had clinical evidence of medial and lateral epicondylitis and a right shoulder rotator cuff tendon tear. He did not consider that the right shoulder rotator cuff tendon tear was work-related, but he considered that it needed to be taken into consideration in recommending any return to work.[53] At the time he examined her on 25 July 2006 and undertook a worksite assessment on 26 July 2006, he recommended a return to work of three hours per day, four days per week dusting, replacing bin liners and wiping down kitchen benches, but no other tasks.[54]

• Mr Weaver accepted that the plaintiff had genuine organic pathology confirming injuries to her right upper limb. He considered that it was theoretically feasible for her to attempt to resume employment, but he considered that it would be difficult for her to do so as a commercial cleaner.[55]

• Dr Kostos was of the opinion that the widespread nature of the symptoms reported by the plaintiff were consistent with a regional pain syndrome influenced by non-physical factors. He considered her prognosis was poor because her presentation was dominated by non- physical factors.[56]

• Dr Lefkovits accepted that the plaintiff had organic pathology in her right upper limb. He considered, at the time he examined her on 1 May 2008, that from a purely organic point of view, she could return to work which did not require constant or repetitive use of her right upper limb, particularly at or above shoulder height.[57]

• Mr Jones was of the opinion that the cause of the plaintiff's ongoing symptoms in her right shoulder were unclear. Whatever the injury was, he considered that the work component had resolved. He considered she was fit to work as a cleaner three hours per day.[58]

[51]           DCB 84F-84G

[52]           DCB 30

[53]           DCB 40

[54]           DCB 39

[55]           DCB 48-52 and 53-54

[56]           DCB 65

[57]           DCB 71-72

[58]           DCB 56-57 and 60-61

74        There is a consistent thread through the medical opinions of Dr Brown, Dr Poppenbeek, Mr Weaver, Dr Kostos, Dr Lefkovits and Mr Jones of significant non-organic issues affecting the plaintiff’s presentation on the occasions when they examined her. The same observations were not made by Dr Ristevski, Mr Kiellerup, Mr King or Mr Brearley, but rather they found her to be suffering from organically-based pathology without evidence of embellishment or exaggeration.

75        The plaintiff was examined by three psychiatrists on behalf of the defendants:

• Dr Stern examined the plaintiff on 30 March 2006. He was of the opinion that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, but was fit for work, including her pre- injury employment.[59]

• Dr Entwisle examined the plaintiff on 13 September 2006, some six months after Dr Stern examined her. He was of the opinion that she did not have a psychiatric condition.[60]

• Dr Turecek examined the plaintiff. He did not record the date upon which he examined her. His report is dated 2 May 2008. He was of the opinion that the plaintiff showed a very poor adjustment to her physical symptoms. He diagnosed a Chronic Pain Disorder, the basis of which was poor adjustment to ongoing physical symptoms. He considered her symptoms were mild in intensity and she was a poor rehabilitation prospect.[61]

[59]           DCB 34

[60]           DCB 44

[61]           DCB 81-82

Serious Injury

Pain and Suffering

76        In her first affidavit, the plaintiff describes having pain in her right arm extending down to her elbow and into her wrist and the fingers of her right hand. The pain varies. She develops pain and swelling if she uses her right wrist and fingers too much. She experiences shoulder pain when she lifts up her arm. If she does that for too long the pain increases, as does weakness. She has limited movement in her shoulder, elbow and wrist. Her sleep is interrupted.

77        Furthermore, the plaintiff describes having difficulty hanging out clothes; washing her hair; reaching up to shelves; putting on her bra; cooking; opening jars; turning on taps; cutting and chopping vegetables; driving a car; using her left hand as much as possible; relying upon her husband and children for assistance; going shopping and suffering interference in her social life.[62]

[62]           PCB 24-25 and 27B-27C

78        Mr Meldrum cross-examined the plaintiff regarding her capacity to function on a day-to-day basis. It was my impression that the plaintiff did not depart from the matters she deposed to in her affidavits regarding interference which she has experienced in her social, domestic and recreational life as it was prior to her suffering her injuries.[63]

[63]           Transcript 35-37

79        After considering the plaintiff’s evidence and the medical evidence, I have concluded that the plaintiff did suffer an injury to her right shoulder, elbow, forearm and wrist in the course of her employment with the first defendant running up to 3 August 2005 and as a result of the work which she performed on that day.

80        I accept that the injuries impair the function of the plaintiff’s right upper limb, and that the impairment of function is permanent. In that regard, I prefer the evidence of Dr Ristevski. He has treated the plaintiff since 4 August 2005. He is in the best position to make an assessment of the plaintiff, particularly with respect to the nature of the injury she suffered, the degree to which she experiences pain and restriction of movement and a requirement for medication to treat the pain.

81        I have confidence in accepting the opinion expressed by Dr Ristevski because, to a fair degree, it is confirmed by the treatment afforded to the plaintiff by Mr Kiellerup and Mr Hahne, physiotherapist.

82        Mr Kiellerup provided the plaintiff with active treatment, and indeed, offered her a further cortisone injection or surgery in an effort to ameliorate the symptoms from which he accepted she was suffering. Mr Hahne also provided the plaintiff with active treatment, and as at 16 April 2007, considered that the plaintiff required further treatment by way of exercise in a gym and pool as part of her rehabilitation.[64]

[64]           PCB 98

83        The opinions expressed by Dr Ristevski are also confirmed by the opinions expressed by Mr King and Mr Brearley. There is a very significant degree of consistency in the opinions each of them have expressed regarding the nature of the injury suffered by the plaintiff, and the degree to which she experiences pain and restriction of movement, and the impact those injuries have had upon her capacity to work in suitable employment.

84        It is a strong body of medical opinion which supports the conclusion that the plaintiff has an actively symptomatic right upper limb requiring ongoing conservative treatment.

85        Against that strong body of medical opinion are the opinions which are in stark contrast, being principally the opinions of Dr Kostos and Mr Jones, who simply do not accept that there is an organic basis for the plaintiff's complaints which are work-related.

86        Dr Brown, Dr Poppenbeek, Mr Weaver and Dr Lefkovits by and large accepted that the plaintiff suffered organically-based injuries; they doubted that the symptoms described by the plaintiff were entirely organically-based. It seems to me that their opinions, at least partly, confirm the opinions of Dr Ristevski, Mr King and Mr Brearley that the plaintiff suffered organically-based injuries.

87        It is always of concern to observe medical opinions of such contrast. It places the trial judge in a position where a value judgement must be made on the basis of opinions expressed largely in medical reports.

88        I have resolved the contrast in the medical evidence in this way. Firstly, I accept the plaintiff’s evidence for the reasons I have already outlined. Secondly, and despite the criticism of Dr Ristevski that he was in some way biased in favour the plaintiff, I found him to be a witness who gave well- considered answers, none of which carried a hint of bias. Thirdly, it seems to me that the plaintiff has been a careless historian, but I do not accept she was untruthful.

89        By the time she was seen by Mr King and Mr Brearley, the plaintiff reported the occurrence of her injuries more consistently with what she deposed to in her first affidavit, and on that basis Mr King and Mr Brearley were able to capably and competently analyse the questions of causation, and the nature and degree of the injuries which the plaintiff claimed she suffered.

90        It is on the basis of the foregoing that I prefer the opinions of Dr Ristevski, Mr King and Mr Brearley.

91        Therefore, I find that the plaintiff is suffering from consequences which interfere with her capacity to undertake social, domestic and recreational activities and which interfere with her capacity to undertake her pre-injury employment.

92        She requires intermittent medical treatment. She requires the intermittent use of strong painkilling medication to treat the pain which she experiences.

93        It seems to me that the consequences to the plaintiff bear all of the characteristics of consequences deserving of the description “at the least very considerable”. Therefore, I find that the pain and suffering consequences to the plaintiff, when judged by comparison with other cases in the range of possible impairments or losses of a body function may be fairly described as being more than significant or marked and as being at least very considerable.

94        I do not accept that there is any need for any so-called disentangling. Shock Records Pty Ltd v Jones,[65] Zivolic v Hella Australia Pty Ltd[66] and Jayatilake v Toyota Motor Corporation Australia Ltd[67] demonstrate that the approach that I must take in determining whether any so-called disentangling is required is to ask whether the plaintiff’s right upper limb injury arose as a result of her work, and whether it is the cause of the pain and suffering consequences which she contends have arisen as a result of the injury.

[65] [2006] VSCA 180, per Bell AJA, at paragraphs 69-70

[66] [2007] VSCA 142, per Redlich AJA, at paragraph 64

[67] [2008] VSCA 167, per Ashley JA, at paragraphs 20-24

95        On the basis that I prefer the opinions of Dr Ristevski, Mr King and Mr Brearley, then no so-called disentangling is required. They did not consider that there was a non-organic component which blurred their ability to discern the physical injuries and the extent to which they affect the plaintiff.

Loss of Earning Capacity

96        Although Dr Ristevski, Mr King and Mr Brearley are of the opinion that the plaintiff is not fit for suitable employment, I am not satisfied that the plaintiff has discharged the onus of proof which she bears pursuant to subsection (19)(b) and (38)(g).

97        I accept that the plaintiff is unfit to work in her pre-injury employment as a cleaner. I accept that she is probably unfit to work in similar forms of employment.

98        However, the plaintiff has not worked since 27 July 2007. Her case for loss of earning capacity is that since that time she has been totally unfit for any form of employment for which she has any capacity by reason of her education, training and experience.

99        The plaintiff has not made any effort to rehabilitate or retrain in order to determine whether she has a residual capacity which she can exercise as she is required to do pursuant to subsection (38)(g). In the absence of making those efforts, the harshness of that subsection is that she does not establish a loss of earning capacity.

100       Dr Ristevski considered that the plaintiff is fit to do supervisory work.[68] Mr Brearley expressed his opinion regarding the plaintiff's capacity to work in a rather unusual way. At first he said that the plaintiff had no capacity for suitable employment based upon a history that she had only worked as a cleaner, but then added the qualification that if she were fit for suitable employment she could only work part-time, and the tasks which she could perform would have to be restricted because she did not have the unfettered use of her right arm.[69] Mr King was unequivocal in his opinion that the plaintiff was not fit for suitable employment.[70]

[68]           PCB 81

[69]           PCB 116-117

[70]           PCB 109-110

101       Dr Ristevski, Mr King and Mr Brearley were also of the opinion that the plaintiff was not a candidate for retraining. It may be implicit in their opinions that because of her age, difficulty with the English language and her education, training and experience that retraining would be difficult, but they do not analyse why retraining is out of the question.

102       The difficulty with a case of this kind is that in the absence of an effort on the plaintiff's part to rehabilitate and retrain, there are only two possible conclusions left open. Firstly, that the plaintiff is totally incapacitated for all work, or secondly, that in the absence of any effort to rehabilitate and retrain, it is simply not possible to determine whether the plaintiff has any residual capacity which she can exercise in suitable employment. I think the plaintiff falls into the latter category.

103       I do not think it is sufficient for the plaintiff to simply answer the propositions advanced by the defendants that she does not have the capacity to undertake any of the light work referred to by Ms Moffett in her lengthy report. The onus is borne by the plaintiff to prove loss of earning capacity, not for the defendants to disprove it. To simply react to the propositions put by the defendants is hardly a discharge of the plaintiff's onus.

104       I am not persuaded that the report of Mr Radley, psychologist, assists the plaintiff. I note that he considered that there were a number of insurmountable barriers to the plaintiff returning to any type of suitable employment, but the flaw in his opinion is that many of the barriers are based upon some of the non-organic features in her presentation, for example, poor adaptation to her injuries and chronic pain.

105       Furthermore, the general tenor of the report suggests that the plaintiff was a person of almost no skills before she suffered injury. I do not accept that could possibly be the case given that the plaintiff was able to obtain work and maintain her hold over it effectively for many years before she suffered injury.

106       For the plaintiff to seriously contend that she does not even have the capacity to be a crossing supervisor is tantamount to saying that she is totally and permanently incapacitated.[71]

[71]           DCB 108

107       On the plaintiff's own account she is not an invalid. She has pain, restriction of movement and is disabled to a degree, but is otherwise capable of some degree of activity, save where that activity provokes pain in her right upper limb. To suggest that the tasks required of a crossing supervisor are beyond her is inconsistent with her retained capacity, and the modesty of the physical tasks involved in that work.

Conclusion

108 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of her employment with the first defendant.

109       After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

---