Ristovska v VOA WebCo Pty Ltd

No judgment structure available for this case.

IN THE COUNTY COURT OF VICTORIA

Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-01255

DRAGA RISTOVSKA	Plaintiff
v
VOA WEBCO PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 January 2010
DATE OF JUDGMENT:	17 March 2010
CASE MAY BE CITED AS:	Ristovska v VOA Webco Pty Ltd (No 1)
MEDIUM NEUTRAL CITATION:	[2010] VCC 0152

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Application pursuant to s.134AB(16)(b) Accident Compensation Act 1985 – bilateral carpal tunnel syndrome – bilateral epicondylitis – pain and suffering – loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with	Shine Lawyers
Mr B Anderson
For the Defendant	Mr J Batten with	Herbert Geer
Ms L Barrett
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from 2003 to June 2005 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4 The body function relied upon in this application is the bilateral upper limbs with conditions of carpal tunnel syndrome, epicondylitis of the elbows and right DeQuervain’s tenosynovitis.
5 The plaintiff, by Originating Motion CI-09-01254, also brought an application in relation to a right shoulder injury suffered on 19 August 2004 (“the said date”). As both applications were heard at the same time, the judgment in this application, CI-09-01255, deals with all the evidence and legal principles relating to both applications.

Outline of Section 134AB
(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
(ii)        The impairment of the body function must be permanent.
(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of the hearing as being “at least very considerable” and more than “significant” or “marked”.
(v)        I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
(vi)       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
(vii)      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
(viii)     Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
(ix)       Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
(x)        I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602 in reaching my conclusions.

6 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence
7          The plaintiff is presently aged fifty seven, having been born on 25 May 1953 in Macedonia. She is married and has an adult son who lives at home. The plaintiff has two rental properties and her husband is working.
8          The plaintiff finished Year 8 and then worked around the family home until the age of nineteen when she came to Melbourne with her family. Her spoken English is quite good but her reading skills are poor.
9          After arriving Melbourne, the plaintiff had a number of jobs, including factory work and working as a sewing machinist, until the time she commenced employment with the defendant in early 2001 making webbing for seatbelts.

Pre Accident Health
10        The plaintiff deposed that prior to suffering injury during the period of employment, she was in good physical health. She had a hip replacement in 1999, having injured her hip in a fall at work in 1989 (“the fall”) but the surgery was very successful and she had no further problems.
11        The plaintiff was cross examined at length in relation to previous injuries and compensation claims. She said that prior to the said date she had a good and full employment record.
12        The plaintiff agreed that in her Claim Form relating to the incident where she claimed having torn a muscle in her right arm at work on the said date, she answered “No” to questions about any previous claim or injury to that region. She had never had any problem with her right shoulder or numbness in respect to pins and needles in her fingers before the incident.
13        The plaintiff claimed compensation in relation to the fall. She was off work for about a year and she was paid compensation of about $11,000. She then agreed that she may have received payments for three and a half years.
14        The plaintiff remembered the main problem from the fall was her hip. She could not remember claiming any problem with her right shoulder or neck. Her doctor at that time was Dr Hettirachi in Epping, who treated her until January 2002.
15        The plaintiff agreed that she might have seen Mr Lee, rheumatologist, in 1993 in relation to her fall injuries. She denied she complained to him of right sided problems as she landed on her left side in the fall. She had pain everywhere but in particular she had a problem with her left hip.
16        The plaintiff then said she may have had the right sided problems that Mr Lee referred to, but after that time she had been working all the time and she did not have any problems.
17        The plaintiff agreed that she may have complained to Mr Lee of swelling in her arm in the morning from time to time with numbness in her right hand, and also that she might have had spinal investigations at that time. She could not remember being told in 1993 that she had a right shoulder rotator cuff problem.
18        Between 1994 and 1999, the plaintiff worked as a machinist in Thomastown and she also worked assembling lights at a factory in Collingwood.
19        The plaintiff agreed that when she was seeing Dr Ristevski in the 1990s, particularly in 1995, she told him that she had numbness and pins and needles in her hands and arms. She “did not have problems for too long and never complained after that may be”. She could not recall Dr Ristevski sending her to another doctor at that time.
20        In the twelve months prior to the said date, the plaintiff might have gone to see Dr Ristevski for her hip and she may have had a left hip x-ray in July 2004. She might have had some problems with her right knee in December 2003 leading to an x-ray at that time.

Employment with the Defendant
21        The plaintiff’s job with the defendant required her to collect webbing and take it by trolley to the cutting machine. In performing these duties she experienced problems with the weight of the trolleys and also moving the trolleys.
22        Once a trolley was at the machine, the plaintiff was required to set up the cutting machine and put webbing through it. She had difficulty doing this task because she was short and needed a stool to reach up to the metal cylinder to thread the webbing.
23        The plaintiff was then engaged in very repetitive work examining the webbing which had been cut by the machine. She was then required to lift up the webbing bundles to examine them. These bundles could be heavy (“the work duties”).
24        The plaintiff worked from 3 pm to 11 pm Monday to Friday and usually also worked weekends, most weeks working seven days a week. Her job was very heavy and difficult but she enjoyed it.
25        From about the middle of 2003 onwards, until the said date, the plaintiff often got aches and pains and numbness and pins and needles around the wrists and fingers of both arms and elbows. The plaintiff did not say anything about these problems to the defendant because she was scared of losing her job and she persisted with her work.
26        On the said date, the plaintiff hurt her right shoulder when she went to stand from beneath the machine and struck her right shoulder hard on the metal frame (“the incident”). The plaintiff reported the incident to her team leader.
27        In cross examination, the plaintiff denied that she hurt her elbow in the incident and confirmed she had injured her shoulder, striking it slightly below the shoulder joint on the tip of the shoulder.
28        The plaintiff hoped the pain would go away. She managed to finish her shift. That night she noticed her shoulder had red marks on it and was very sore. She then worked for the following ten days hoping the pain would go away but it continued. She told her supervisor of trouble lifting her arm and also at that time she was getting a funny “electricity type” feeling down her right arm.
29        The plaintiff thought she first saw her general practitioner, Dr Malek, in about late August 2004. She agreed that she first saw a doctor after the incident on 28 August 2004.
30        Dr Malek prescribed medication and referred the plaintiff for an ultrasound, which indicated a torn tendon in her right shoulder.
31        At about that time, the plaintiff also told Dr Malek about her wrist and elbow problems which had been giving her trouble for quite some time before the incident. He referred her to the Austin Hospital for some tests in relation to these complaints.
32        Dr Malek wanted the plaintiff to stop work because he thought work could worsen her condition, and the plaintiff submitted a claim for compensation.
33        The plaintiff was also referred for physiotherapy and she continued with prescribed medication. She was referred to a surgeon, Mr Gya, in September 2004. He gave her five injections: three in the left arm and two in the right. When he suggested surgery, the plaintiff preferred to be operated upon by Mr O’Donnell because he had operated on her hip and she “trusted him more”.
34        Mr O’Donnell agreed the plaintiff needed an operation on both hands. The plaintiff requested the left hand be operated on first as she was right handed and she wanted to see how that surgery turned out before her right hand was operated on.
35        Whilst surgery was recommended in September 2005, it did not take place until a year later because the ”insurance company took their time in accepting liability”.
36        Mr O’Donnell operated on the plaintiff’s left wrist in October 2006 (“the surgery”). The surgery did not relieve her symptoms and in fact her left wrist became worse and the pins and needles have remained.
37        The plaintiff was reluctant to undertake right wrist surgery because of the lack of success with the left wrist surgery. Mr O’Donnell also suggested right shoulder surgery but the plaintiff was reluctant to undertake this procedure without a guarantee of success.
38        The plaintiff attempted to return to work on two occasions. She deposed that in late 2004, for about a month, she did inspection work on reduced hours but found that work was just as busy and as hard as it had always been. However, in cross examination, the plaintiff said that during this time she in fact returned to her normal duties working four hours a day. She did not work overtime.
39        In about March 2005, the plaintiff again returned to work for about four hours a day in her normal duties. However, her symptoms worsened and she has not been able to engage in any work since about June 2005.
40        The plaintiff was involved in a car accident on 6 November 2006, about one month after the surgery (“the first car accident”).
41        A truck failed to give way to the vehicle in which the plaintiff was travelling as a front seat passenger. The first car accident involved a big impact. Thereafter, plaintiff was hospitalised for four days with hip and spinal problems.
42        The plaintiff deposed in December 2009 that she continued to have symptoms in her neck, lower back and left hip as a result of the first car accident.
43        The plaintiff was cross examined in relation to a statement she made in September 2008 relating to the first car accident. She agreed that in particular her neck and back symptoms as of that date had been the most problematical from that accident.
44        The plaintiff denied that just her neck and back were stopping her from going back to work, explaining that - “It was everything that I’ve got and suffered from – WorkCover”.
45        If she had been better from the surgery, which she did not know at the time of the first car accident, she had hoped to return to work. She denied she had ever said the surgery had been successful because she could not lower her hand when it was first operated on and she “always complained to Dr O’Donnell because [she] always got problems with the operation”.
46        The plaintiff was also involved in a further car accident on 31 March 2008 (“the second car accident”).
47        In the second car accident, another car failed to give way at a roundabout and hit the car the plaintiff was driving. She was hospitalised overnight. Her hip and spinal injuries were aggravated.
48        The plaintiff made a claim against the Transport Accident Commission (“the T.A.C”) for an injury to her neck, hip and right shoulder suffered in the second car accident.
49        Prior to stopping work with the defendant, the plaintiff was earning about eight hundred dollars gross per week with overtime and shift allowances. The defendant’s factory has now closed down. The plaintiff was not aware that the factory was to close down until after the first car accident.
50        The plaintiff believed that she would no longer be able to work as a machinist as a result of her work injuries and she has no other work skills save for manual work. She has no experience in sales or telemarketing.
51        She could not go back to do her old work because of her arms. She could not do that work even if she had her shoulder problem alone. If her shoulder was good, but her arms were as they are, she could not go back to work. There is no job she has ever done in the past that she could presently return to.
52        Whilst the plaintiff was involved with WorkStreams from September 2005 until August 2006, certain jobs were suggested to her. She agreed that she was keen to seek work and she was happy ringing potential employers to seek work. However, she was not computer literate.
53        The plaintiff registered at a local job networking agency but they did not really send her to any jobs. She thought about doing security work on the door with Harris Scarfe, as her son worked there, but they did not want her and she did not have an interview.
54        The plaintiff applied for one job over the phone but when she told her potential employer that she was on WorkCover, they were not interested. If that job was still there she would be interested.
55        The plaintiff was looking for alternate suitable light manufacturing work before the first car accident. She had a personal job seeking identification number and Sarina Russo, a job seeking agency, was trying to find something to suit her ability. She could not recall having any interviews through that agency.
56        In the last two years since the Medical Panel’s decision in January 2008, the plaintiff has not felt better in her arms, wrists or shoulder, to the extent that she could go and get any type of work.
57        She has done some voluntary work as a DJ with Macedonian Radio, reading the news, but stopped as she could not hold the newspapers to read the news because of pins and needles in her hands.
58        The plaintiff is still looking for a job if she can find one and she is following the Whittlesea paper. If she found a job she would take it but there is no job that does not involve the use of her hands and she does not want to hurt herself more than she already has.
59        The plaintiff continues to suffer from pain in both arms. She finds that the area of her arms which has most pain can vary from moment to moment and day to day.
60        The plaintiff continues to have constant right shoulder pain which, when at its worst, is a burning pain. That pain goes up from her shoulder into her neck area and down her arm and it can cause headaches.
61        She also has constant pain in her right wrist. She has had a small amount of improvement in the pain levels in her right elbow but still has a large lump on the outside thereof and a smaller lump on the inside.
62        Her right wrist pain is worse than her left. She currently rates her right sided pain at nine out of ten and her left sided pain at eight out of ten.
63        The plaintiff also has pain in her left wrist where the surgery took place and she has a painful left elbow with a lump on the inside of the elbow. The lumps on her elbows have developed since her arm complaint began.
64        More recently the plaintiff’s left shoulder has also been causing pain and she has had a scan.
65        The plaintiff finds that activity makes her arm pain worse. Even small things such as eating, or lifting a carton of milk can aggravate her pain. Because she is right handed and normally uses her right hand she finds that she aggravates her right arm symptoms more than the left. A lifting limit of two to three kilograms has been suggested by her doctor.
66        The plaintiff finds sleeping incredibly difficult and she uses heat packs to help her sleep, especially in winter. She feels constantly tired.
67        The plaintiff has lost a lot of strength and movement in her arms. She has trouble with a lot of basic things such as dressing, cooking and washing. Her husband and son have to do the vacuuming, mopping and hanging out the washing.
68        The plaintiff can do light cooking and she can put clothes in the machine. She does not hang out the washing. She does not have a garden and prior to the incident she did not play sport. Sometimes she and her husband go to the Macedonian Club for coffee and music and she will go to family occasions. She still tries to dance and can do so for a little while after she has taken some medication.

69        The plaintiff is still able to do the shopping but she can only carry small bags. She is able to drive but only for short distances and she now socialises less with people than she used to. She feels she is not the same person she used to be.
70        In cross examination, the plaintiff agreed she took an interest in her personal appearance. She agreed she is not an invalid or a cripple.
71        The plaintiff left Dr Malek’s care after the Medical Panel decision in early 2008 because she found his advice confusing. She did not stop seeing him because she was unhappy with him or because he was suggesting she do light duties.
72        Since early 2008, the plaintiff has been under the care of Dr Ristevski, who used to be her family doctor. No pain management program has been suggested by him.
73        The plaintiff has treatment from Dr Khanna for her car accident injuries. She is not having treatment in this regard from Dr Ristevski because he required she pay six hundred dollars up front and she could not afford to do so.
74        The plaintiff is being represented by Burt Davies, solicitors, in relation to her transport accident claims as she was advised by her present solicitors that that firm was expert in TAC matters.
75        The plaintiff occasionally takes Panadeine and Indocid which are paid for by the TAC. She buys Voltaren cream herself. The plaintiff continues with weekly physiotherapy treatment from Sandy Aggarwal for her work related injuries.
76        The plaintiff has had physiotherapy mainly to her left hip and also to her neck and back since the first car accident from Kelly McGrath, whom she has seen about one hundred and fifty times. Ms McGrath uses ultrasound on the plaintiff’s back and neck. The treatment gives the plaintiff temporary relief and then her pain and headaches return.

Investigations
77        An ultrasound of the right shoulder was organised by Dr Chawda of the North End Medical Group on 30 August 2004. A nine millimetre hypo-echoic area was seen at the supraspinatus insertion compatible with a small partial thickness tear and/or area of tendonopathy.
78        No rotator cuff calcification or bony injury or bone destructive lesion was seen on x-ray of the right shoulder on 30 August 2004. There was minimal early degenerative change in the acromioclavicular joint.
79        An EMG nerve conduction study was organised by Dr Malek on 7 September 2004. It was concluded there was electrophysiological evidence of a median neuropathy at the right wrist. The findings were consistent with mild to moderate right carpal tunnel syndrome.
80        Dr Malek organised an ultrasound of the plaintiff’s right elbow on 6 October 2004. It was concluded the appearance was suspicious of inflammatory change involving the extensor radialis brevis.
81        An ultrasound of the left elbow was organised by Dr Malek on 11 November 2004. It showed no evidence of tendonosis. There was no stromal distortion of oedema. There was no joint effusion. There was a tiny irregularity related to the medial humeral condyle and plain film correlation was therefore advised.
82        An x-ray of the left elbow was organised by Dr Malek on 19 November 2004. It showed an irregularity associated with the medial humeral epicondyle which it was noted could reflect evidence of past or recurrent trauma. No other joint or bone abnormality was demonstrated.
83        A further nerve EMG study was carried out at Dr Malek’s request on 10 January 2005. There was electrophysiological evidence of a median neuropathy at the left wrist and the findings were consistent with mild left carpal tunnel syndrome.
84        An ultrasound of the right shoulder was carried out on 21 February 2005 at the request of Dr Malek. It revealed a partial intra-substance tear of the supraspinatus tendon which extended over eleven millimetres. There was impingement noted in forward flexion. External rotation was restricted, consistent with adhesive capsulitis. No other abnormalities were demonstrated.
85        An ultrasound of the right shoulder was organised by Dr Malek on 5 August 2005. There was a partial thickness tear of the supraspinatus tendon anteriorly in its mid-portion measuring 1.02 x .56 x .43 centimetres. There was mild thickening of the subacromial bursa consistent with chronic bursitis. No other impingement or abnormalities were demonstrated.
86        An EMG nerve conduction study organised by Dr Malek on 28 July 2006 showed electrophysiological evidence of a median neuropathy at both wrists. The findings were consistent with mild bilateral carpal tunnel syndrome, the severity of which it was noted was unchanged compared to previous studies.

The Plaintiff’s Medical Evidence
87        In a St John’s Ambulance Casualty Report, dated 26 August 2004, the plaintiff reported that she had hit her right shoulder on the machine table while cleaning on 19 August 2004. She described her symptoms as “sore, running down her hand like pins and needles”.
88        Dr Gya provided a short report dated 28 February 2007 setting out he saw the plaintiff in September 2004 with carpal tunnel syndrome, confirmed on nerve conduction studies, as well as tenosynovitis of the right thumb. He recommended surgery but the plaintiff then sought further opinion and had surgery performed elsewhere.
89        Mr O’Donnell, orthopaedic surgeon, carried out a left carpal decompression and tenosynovectomy on 6 October 2006 (“the surgery”). Post operatively, he reviewed the plaintiff on 16 October 2006 and in the immediate period noted she was making an appropriate recovery and was undertaking physiotherapy.
90        Mr O’Donnell commented, at the time of surgery, there was no specific evidence of medial nerve compression by the transverse carpal ligament but this was often the case in this condition. At that stage he anticipated the plaintiff making a good recovery from the surgery.
91        Mr O’Donnell disagreed with Dr Lange’s view that surgery to the right shoulder be delayed or not performed, as he considered the plaintiff was known to have significant subacromial impingement with a rotator cuff tear. The plaintiff had had symptoms for more than twelve months and had not responded to prolonged and conservative treatment.
92        Mr O’Donnell thought Dr Lange’s comments regarding the improved range of movements were not really directly relevant as the problems for which the plaintiff was being treated were rotator cuff tear and impingement with shoulder pain and not just capsulitis. He agreed that that element of her condition had improved.
93        Mr O’Donnell therefore recommended the plaintiff proceed with shoulder surgery after she had regained good function in her hand. If she did not have that surgery he expected her to be fit to do suitable duties but those would be more limited than would be the case following successful shoulder surgery. In the absence of such surgery, he thought the plaintiff would be limited in her ability to lift and she should not perform repetitive movements of her right arm or use it above shoulder height.
94        On review on 16 November 2006, the plaintiff told Mr O’Donnell of her involvement in the first car accident. On examination, the plaintiff was wearing a cervical collar and she complained of persisting soreness in the left palm. She was referred for rehabilitation.
95        When examined on 6 January 2007, the plaintiff complained she had been aware of pain in the left hip since the first car accident and she had a sensation of pins and needles and sometimes numbness in the left foot. She continued to complain of left hip pain and she advised she had been referred to Mr Brazenor for review regarding her spine.
96        Mr O’Donnell concluded that the plaintiff had presented with bilateral carpal tunnel syndrome and right shoulder pain due to a full or partial thickness rotator cuff tear. She had made a slow recovery after surgery. He anticipated the plaintiff would have right shoulder surgery to correct her rotator cuff tear in due course. He thought she remained significantly impaired by persistent carpal tunnel syndrome, left palm sensitivity and pain, and right rotator cuff tear.
97        On 22 January 2008, the Medical Panel comprised of Dr Lewis, Dr Karna, Dr Weissman and Dr Newman-Morris, concluded the plaintiff was suffering from dysfunction of the rotator cuff of the right shoulder, mild right carpal tunnel syndrome and a mild Adjustment Disorder with depressed and anxious mood relevant to the claimed injury.
98        The Panel found the plaintiff had no current clinical signs consistent with left carpal tunnel syndrome relevant to any claimed injury.
99        The Panel took into account all aspects of the definition of suitable employment and considered the plaintiff was currently unable to undertake manual work and that she had no prospect of obtaining work in areas not requiring manual tasks. The Panel therefore concluded there was no work for which the plaintiff was currently suited and could perform on a consistent basis. The Panel considered the vocational assessment provided which outlined job options, but concluded the options proposed therein did not constitute suitable employment for the plaintiff. The Panel therefore concluded the plaintiff had no current work capacity and that that situation was likely to continue indefinitely.
100       Mr Russell Miller, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 3 December 2009. The plaintiff told him that in approximately early 2003 she was developing problems with numbness and tingling in both hands and aching and discomfort around her elbows as a result of the repetitive, heavy nature of her work. She also told about the incident and also about the first car accident.
101       On examination, the plaintiff complained to Mr Miller of problems with her left and right shoulders, both elbows and arms, problems with anxiety and depression and also aches, discomfort and limping in her left hip.
102       The plaintiff told Mr Miller that following the first car accident, there was some ongoing neck, back and left hip symptoms but these had, to a significant extent, resolved.
103       Examination of the left shoulder revealed diffuse tenderness, no deltoid wasting and some reduction of movement in abduction, forward elevation and external and internal rotation. There was irritability with shoulder movement.
104       Examination of the right shoulder revealed tenderness in relation to the acromioclavicular joint. There was reduction of movement in abduction, forward flexion, external and internal rotation.
105       Examination of the elbows revealed tenderness of the lateral epicondyle and provocation tests were mildly positive for tennis elbow. The range of motion was normal. Examination of the right wrist was unremarkable.
106       There was some restriction of left hip movement in flexion and extension and internal and external rotation. Examination of the lumbar spine was unremarkable.
107       Mr Miller concluded the plaintiff had problems with rotator cuff disease in both shoulders and had probable partial thickness tears of both rotator cuffs. He considered her symptoms were currently suggestive of ongoing adhesive capsulitis and thought her prognosis was only fair and it was unlikely her shoulders would respond to surgical intervention.
108       Mr Miller considered the plaintiff’s shoulder disease had been significantly influenced by her work in the period leading up to and around the said date. He considered she had features suggestive of mild tennis elbow affecting both sides and that she had significant ongoing symptoms. He thought her prognosis was only fair and that work had contributed significantly to the evolution of this disease.
109       Mr Miller believed the plaintiff had bilateral carpal tunnel syndrome for which the prognosis was only fair and her work had contributed significantly. He thought that the prognosis for the plaintiff’s hips should be good.
110       Mr Miller noted that the plaintiff appeared to have suffered neck and back problems following the first car accident and she appeared to have largely recovered from those and the prognosis should be good/excellent.
111       Mr Miller thought the plaintiff had not been fit to return to work. He thought she could not return to work that involved repetitive arm action, use of the arms in the above shoulder position or lifting of weights of more than two kilograms in either the left or right extremities. He considered these restrictions likely to be permanent and related predominantly to the work- related injury.
112       Given his understanding of the plaintiff’s age, education and work experience, he considered a return to work was not envisaged due to the work related injury.
113       Mr Miller also noted, on balance, the plaintiff was suffering from carpal tunnel injury and tennis elbow but on the information available to him she did not suffer from De Quervain’s tenosynovitis. He believed the plaintiff had bilateral shoulder injuries which were predominantly due to capsulitis and he acknowledged the difficulties in making such a determination.
114       Mr Miller thought there may be a psychological overlay and that there were some features to suggest the development of a chronic pain syndrome. However, it was his view that the described symptoms were explained adequately on an organic basis and he believed there was a physical basis for the plaintiff’s injuries. He thought the contribution of each arm to the plaintiff’s condition was approximately equal.
115       The plaintiff has been treated by Dr Ristevski since January 2008. In his recent report dated 21 January 2010, he confirmed the plaintiff suffers from injury to the right supraspinatus tendon, bilateral elbow medial epicondylitis and bilateral carpal tunnel syndrome.
116       In his view, the plaintiff’s incapacity for work had persisted since 2005 and was independent of injuries she had suffered in the transport accidents.

The Defendant’s Medical Evidence
117       The defendant tendered a report from Mr Lee, rheumatologist, to whom the plaintiff was referred by Dr Ristevski in March 1993.
118       Mr Lee was given a history by the plaintiff that she had a fall in 1989 when she twisted her ankle and landed with the right arm and chin. She subsequently had a lot of pain in the right side of her head and neck and in the right shoulder and arm. She also had subjective sensation of swelling of the right hand in the morning from time to time with numbness.
119       Mr Lee noted the plaintiff probably had a chronic rotator cuff tendonitis, fibromyositis syndrome and facet joint osteoarthritis to account for her various symptoms referable to her neck, shoulder and lower back. He advised he would consider giving her a couple of Depot steroid injections for her shoulder.
120       Mr Strangward, general and orthopaedic surgeon, examined the plaintiff on 1 October 2004 on behalf of Wyatt Gallagher Bassett. He thought the plaintiff’s condition was one basically of rotator cuff consequences from particular trauma. However, he noted significantly, there were two associated lesions: a lateral humeral epicondylitis of the right elbow and right carpal tunnel syndrome.
121       In his view, work was a significant contributing factor to the plaintiff’s shoulder injury and to the lateral humeral epicondylitis. He noted the plaintiff was in the age group where spontaneous carpal tunnel was a possibility. However, from the nature of her work and the symptoms in her right hand, in his view, it could be difficult to deny a likely relationship of a significant hand activity to the development of a carpal tunnel syndrome. He thought at that stage the plaintiff’s major problem was her right shoulder and that she was then currently unemployable.
122       Dr Lange, occupational physician, examined the plaintiff on 6 July 2005, 20 September 2006 and 1 August 2007 at the request of the worker’s compensation insurer.
123       On examination on the first occasion, there was reduction in flexion, abduction and external rotation of the right shoulder. There was tenderness on light palpation over the whole shoulder joint and in particular the anterior and posterior aspects of the joint and there appeared to be evidence of impingement in the shoulder joint.
124       There was tenderness of the immediate aspects of both elbows but no evidence of any pain on resisted flexion of the wrist joint. Dr Lange queried that normally with medial epicondylitis that action caused an increase of pain over the medial aspect of the elbow.
125       There was some minor wasting of the thenar eminence of the right wrist. Both Phalen’s and Tinel’s tests were positive in both wrists. There was altered sensation in the right wrist over the lateral aspect of the thumb and second to fourth digits. In the left hand, there was altered sensation on the second to fourth digits.
126       In Dr Lange’s opinion, the plaintiff was suffering from a right supraspinatus tear as seen on ultrasound and consistent with her symptoms and signs. Her discomfort on movement of the shoulder joint was consistent with some adhesive capsulitis. She also had clinical evidence of bilateral carpal tunnel syndrome with a history consistent with the diagnosis, along with examination findings and investigations.
127       Dr Lange thought there did not appear to be any significant signs in regard to the plaintiff’s elbow problems and as such he did not believe that continued to be a problem of clinical significance. He thought that the right shoulder injury was consistent with a work related injury.
128       In regard to the bilateral carpal tunnel syndrome, considering the repetitive nature of the plaintiff’s work, he thought this may well have caused some soft tissue swelling in the wrist and forearm causing the plaintiff’s carpal tunnel syndrome. As such, he believed it was attributable to her employment.
129       In Dr Lange’s view, at that time, the plaintiff was not fit to undertake her normal duties but she was fit to undertake alternative duties involving work below shoulder height and no repetitive type movements. In his view, considering the plaintiff’s multiple pathology, appropriate work would be receptionist, call centre operator or sales assistant, but he thought the plaintiff was not fit to undertake work that required repetitive movements.
130       As he considered the plaintiff’s symptoms were genuine, he also would recommend bilateral carpal tunnel operations to be undertaken.
131       Dr Lange considered there was every likelihood of the plaintiff having a permanent impairment of the right shoulder joint and again, if her wrist symptoms did not resolve, there may be some permanent sensory impairment as a result of her chronic carpal tunnel syndrome.
132       He noted that there had been talk around the defendant’s factory that it may be closing in eighteen months and that might, in his view, be a factor contributing to the plaintiff’s reluctance to persist with alternative duties for restricted hours.
133       On the second examination, there was tenderness over the anterior aspect of the right shoulder. There was limited internal and external rotation. Compared to the July 2005 assessment, the plaintiff’s range of movement had improved with abduction and flexion increasing from 130 to 160 degrees.
134       Examination of the elbows revealed non-specific tenderness over the lateral and medial aspect of the elbow joint but no evidence of any long tract signs with no pain on forced flexion or extension in the wrist joints. There was no wasting of the musculature in the hand and Tinel’s sign revealed some altered sensation over the thumb and second to fourth digits in both hands. A Phalen’s test was negative.

135       Dr Lange noted that there were some inconsistencies found on examination of the cervical spine, specifically of full and pain free range of movement when the plaintiff was not formally examined.
136       There was an increased range of movement of the right shoulder from the earlier examination. No abnormality was detected in either elbow. The right wrist and hand assessment revealed a history of numbness occurring at night and the nerve conduction studies revealed mild bilateral carpal tunnel syndrome.
137       Dr Lange considered the plaintiff had the capacity to undertake the alternate duties outlined in the vocational assessment report. The job options, in his view, which were appropriate included call centre work, telemarketer, sales assistant and product and quality controller. He thought the plaintiff did not have the capacity to undertake work as a process worker or a hand packer due to her bilateral carpal tunnel syndrome which could be exacerbated by these activities.
138       At that stage he preferred to limit surgery to the bilateral carpal tunnel to see how the plaintiff progressed. He thought, after such surgery had been undertaken, the plaintiff would be capable of undertaking all the duties outlined, including hand packing and process work.
139       On examination on 1 August 2007, Dr Lange noted that the plaintiff did not have any plans for future surgery as the result of her left carpel tunnel release had not been to her satisfaction. She continued to have left wrist sensitivity over the scar and some puffiness over the left hypothenar eminence. She told him her left wrist was now worse than prior to surgery. She continued to have pins and needles affecting the second to fifth digits.
140       The plaintiff told Dr Lange that following the first car accident, she had continued to have ongoing problems affecting her left hip, neck and lower back, with pins and needs in the left leg. She did not tell him about the second car accident.
141       On examination of the left wrist there was soft tissue swelling over the hypothenar eminence and increased sensitivity on palpating the scar. There was no formal numbness affecting the digits of the left hand.
142       Dr Lange noted that he was quite surprised that the plaintiff was unable to differentiate two points seven centimetres apart, one on the tip of the digit and the second in the palm of the hand, when he undertook a test for two-point discrimination to evaluate improvement following the surgical release.
143       Dr Lange found no obvious abnormality in the right wrist. Again, the discrimination test was undertaken and again it demonstrated an inability to differentiate between two points separated by seven centimetres.
144       The plaintiff complained of sensitivity over the medial and lateral aspects of both elbows. When asked to extend and flex the wrists against resistance, she did not experience pain in the elbow joint but rather complained of neck pain.
145       Both flexion and extension of the right shoulder was limited to ninety degrees and there was poor internal and external rotation. The plaintiff complained of elbow pain on undertaking internal rotation of the shoulder joint. Full cervical spine movements were poor and inconsistent and the lumbar spine range of movement was also poor.
146       Dr Lange thought that the plaintiff was challenging to assess, in that she demonstrated abnormal illness behaviour, especially the two point discrimination test and neck examination. He noted the plaintiff continued to complain of ongoing elbow pain which did not show any abnormality on physical examination. There was a significant reduction of shoulder movement from the earlier examinations. In regard to the two point discrimination test, he noted the inability to determine whether one or two points were touching the skin with a gap of seven centimetres on both hands was more than unusual.
147       Dr Lange concluded the plaintiff’s current major problem was with sensitivity in the palm of the left hand and some soft tissue swelling. In his view, that appeared to be secondary to the plaintiff’s carpal tunnel release and most likely related to inactivity. He noted there were signs showing some increased swelling over the hypothenar eminence.
148       In his view, the plaintiff’s condition had not resolved and she continued to have sensitivity in the left hand following her surgery. In the right hand there was EMG evidence of mild carpal tunnel syndrome and she complained of numbness in the right hand at night consistent with that syndrome. He considered the findings on the two point discrimination were not consistent with immediate nerve sensory distribution loss and were grossly aberrant and he was unable to explain them on the basis of an organic condition.
149       He concluded there was radiological evidence of a tear to the supraspinatus of the right shoulder, and there was now diminished movement in the joint. He noted possibly the first car accident flared up the plaintiff’s shoulder problem as her range of movement was much greater in earlier examinations.
150       Mr Conroy examined the plaintiff for the purpose of impairment benefit assessment on 7 August 2007. On examination, the plaintiff claimed great tenderness around both shoulders, elbows, wrists and hands. There was a varying restriction of movement in her cervical spine, shoulders, arms and hands but at times movement through a full range was observed. The plaintiff could make a whole fist and had unrestricted movement of her thumb and fingers but she seemed to lack any power.
151       The plaintiff claimed great tenderness in the region of the surgical scar. Mr Conroy noted there was a small palpable lump in the palm of the line of the flexor tendons to the middle fingers and there was no wasting of the small muscles of the palm. Reflexes were present, equal and brisk.
152       When the range of shoulder movement was measured there was some restriction which seemed to vary. There was full movement at the elbow, wrist, hand, thumb and fingers.
153       In Mr Conroy’s view, the history and examination were consistent with chronic rotator cuff dysfunction of the right shoulder and possibly bilateral nerve entrapment at the wrists. He noted, however, the symptoms and signs were inconsistent and were possibly a manifestation of some form of illness behaviour.
154       On 31 October 2007, the Medical Panel (“the Panel”) found the plaintiff had a seventeen per cent whole person impairment resulting from the physical injuries described as right shoulder (supraspinatus tear and adhesive capsulitis), left and right hands/wrists (bilateral carpal tunnel syndrome), left and right elbow (bilateral medial humeral epicondylitis) and right hand (De Quervain’s tenosynovitis) injury.
155       The Panel concluded that the plaintiff had previously suffered left-sided carpel tunnel syndrome but this condition had resolved with surgical treatment and there was now no other medical condition or loss of function of the left hand or wrist relevant to the accepted left hand/wrists (bilateral carpel tunnel syndrome). There was no other medical condition or loss of function relevant to the right hand (De Quervain’s tenosynovitis) injury.
156       The plaintiff was examined by Dr Tony Kostos, rheumatologist, on 13 February 2009.
157       Having told Dr Kostos of the repetitive nature of her work, the incident and the two car accidents, the plaintiff claimed that she never recovered from the “effects of the accidents” and now the effects of the accidents were “all combined” with the other problems.
158       The plaintiff complained to Dr Kostos of constant pain in her neck, shoulders, arms and hands. The pain extended down her side to her lower back and her left hip. She also complained of paraesthesia and numbness in both arms.
159       On examination, Dr Kostos noted that the plaintiff’s neck movements were markedly restricted with pain in all directions. Thoracolumbar spine movements while standing and sitting were also markedly restricted with pain in all directions. There was diffuse midline and adjacent paravertebral tenderness to light touch along the plaintiff’s entire spine.
160       Shoulder elevation was restricted to ninety degrees on both sides with pain. However, the plaintiff had full glenohumeral movements. Impingement tests were negative. The plaintiff had marked, exaggerated tenderness to light touch all around both shoulder girdles. Her shoulders showed a full range of movement with pain on both sides and she had exaggerated tenderness throughout both arms.
161       Both wrists showed a full range of movement with marked pain on both sides. Finkelstein’s Test for De Quervain’s tenosynovitis was negative bilaterally, as was Phalen’s and Tinnel’s Test for carpal tunnel syndrome. The plaintiff’s hands were consistent with normal use.
162       Neurologically the plaintiff had collapsing weakness proximally and distally her grip strength was three on the right and one on the left. Reflexes were normal and sensation to pin prick was reduced over the palmar and dorsal surfaces of both hands to the wrists.
163       Dr Kostos thought the plaintiff had evidence of a chronic pain syndrome. She had widespread pain and tenderness without any objective findings on physical examination. He noted that in fact the plaintiff’s examination revealed exaggerated tenderness as well as a number of discrepancies and inconsistencies, together with non organic signs as described by Waddell.
164       Dr Kostos thought that the description of the incident was not the mechanism of an injury for a supraspinatus tendon tear and that it needed to be understood that, by the age of fifty, half the population with shoulder pain had such tears. Accordingly, he considered that this was a coincidental finding and he thought the plaintiff did not have adhesive capsulitis as she had full glenohumeral movements. He noted examination findings with respect to the left shoulder were identical to the right and he therefore thought the evidence was quite conclusive that the plaintiff did not have any problems in either shoulder.
165       Dr Kostos thought that it was quite clear that the plaintiff had never had any evidence of epicondylitis, whether lateral or medial, and he found it difficult to explain her treatment in the form of steroid injections and noted, as expected, that they had not helped her. He did not think the De Quervain’s tenosynovitis condition was present.
166       Having noted the surgery, Dr Kostos commented that he certainly did not find any objective evidence of carpal tunnel syndrome and that the plaintiff’s neurological findings could not be attributed to that condition. He believed that she had never had carpal tunnel syndrome and therefore the surgery would not help. If the plaintiff had had carpal tunnel syndrome then, he thought it was never related to employment as it was a common constitutional condition in middle-aged women.
167       Dr Kostos noted further complications had occurred as a result of the car accidents, and as the plaintiff herself stated, all of her problems were now combined. However, he noted it was quite clear the plaintiff did not have any objective findings in relation to her spine. Therefore, in his view, the plaintiff’s chronic pain syndrome related to non-physical factors and she now had difficulty coping with the situation.
168       Dr Kostos noted that if he was treating the plaintiff, he would reassure her that she was not injured and stop all treatments and simply advise her to undertake an exercise program.
169       He did not believe that the plaintiff was incapacitated for employment, but until she demonstrated her physical capability, he thought it would be difficult to know just what she was capable of doing. He noted, unfortunately, the plaintiff had become so entrenched in her invalid role that it was unlikely any improvement was going to occur in the future.
170       Dr Shan, consultant psychiatrist, examined the plaintiff for medico-legal purposes on 10 February 2009. He considered, from a psychological viewpoint, there was little to find. The plaintiff reported a natural frustration and emotionality when in pain and discomfort. On examination, she did not present as a clinically depressed individual, nor did she describe panic attacks.
171       Dr Shan concluded that the plaintiff did not warrant a psychological prognosis at that time and she did not show any evidence of an abnormal psychological condition or a psychiatric disorder. He did not believe there was any functional overlay, conscious or unconscious, or an exaggeration or symptoms or a deliberate attempt to feign injury for the purposes of her workers compensation claim.

Investigations
172       The plaintiff had a CT scan of her lumbar spine on 25 September 1990. It showed significant facet joint degenerative changes at all three levels most marked at L3-4 and L5-S1.
173       An x-ray of the right shoulder was taken on 17 June 1992. No soft tissue calcification was seen nor was there any bony or soft tissue abnormality.
174       The plaintiff underwent an x-ray of her right knee on 15 December 2003. It showed mild degenerative narrowing of the medial joint compartment and no other abnormality.
175       The plaintiff underwent a left hip x-ray on 7 July 2004. There was a joint prosthesis noted, the position was satisfactory and there was no evidence of complication.

Rehabilitation Documents
176       The plaintiff was assessed by WorkStreams on 30 November 2004.
177       Her injury was noted at that time as bilateral carpal tunnel syndrome, right elbow tendonitis and right shoulder rotator cuff tear. The plaintiff was certified unfit for work, having attempted a return to work for four hours a day, for two weeks.
178       It was noted there were limited suitable duties available with the defendant and that prior to the incident the plaintiff used to perform regular overtime. Further, the plaintiff reported she was motivated to return to work. She enjoyed her job but she was concerned that her previous attempt to return to work had been unsuccessful.
179       WorkStreams planned to review the plaintiff’s capacity to perform suitable employment in early January 2005.
180       A vocational assessment was carried out by the Victorian WorkCover Authority on 2 March 2006.
181       At that stage, in order of priority, the following positions were identified as appropriate for the plaintiff: telemarketer, call centre worker, sales assistant, enquiry and admission clerk, product quality control, light process worker, light hand packer and light product assembler.
182       On 22 March 2006, WorkStreams met with the plaintiff for the purposes of a JSA commencement meeting. The plaintiff agreed to work within the options that had previously been suggested.
183       The plaintiff stated that she was eager to secure new suitable employment and she agreed to job seek within the options. It was noted her vocational preference was to secure work as a sales assistant.
184       A JSA half way report was completed in May 2006.
185       A Worker Independent Jobseeker Report was completed on 10 August 2006. It was noted the plaintiff advised that she was contacted by a recruitment company on 8 August 2006 and asked to attend a job interview for a suitable light manufacturing job. She reported the interviewer enquired whether she had had any previous WorkCover claims. When she advised that was the case, she received a second call advising that the job was actually taken and the interview was cancelled.
186       The plaintiff advised she had registered with a job network agency, Sarina Russo, and she had also obtained a Personal Job Seeker Identification Number.
187       It was noted the plaintiff reported her job seeking skills using the computer and internet had greatly improved through the assistance of her son and regular practice at the Russo office.
188       Between JSA weeks nine to sixteen, WorkStreams had assisted the plaintiff in registering with four private recruitment agencies.
189       A Closure Outcome Report was completed on 11 August 2006. It was noted on 10 August 2006 the plaintiff had reported she felt confident in using a newspaper, internet and cold canvassing to identify suitable employment, and that she intended to continue job seeking. At that stage, WorkStreams were of the opinion that the plaintiff was an independent job seeker.

Video Surveillance
190 There was fifteen minutes of surveillance video taken on 26 December 2009. On that date the plaintiff attended the Boxing Day sales at Epping Plaza. She was shown carrying a shoulder bag, picking up a packet of sheets, buying a pair of shoes and standing in cash register queues.
191 The plaintiff was not shown engaging in any heavy or vigorous activity during that time.

TAC Claim Documentation
192       In her Claim for Compensation dated 25 January 2007 in relation to the first car accident, the plaintiff claimed injury to her neck, left shoulder, left hip, left knee, left rib and right rib. She disclosed a previous carpal tunnel condition.
193       The plaintiff attended the Northern Health Emergency Department following the first car accident. When admitted, she complained of neck, thoracic and left hip pain and left shoulder pain. A number of investigations were carried out at Northern Health whilst she was hospitalised there for four days.
194       The plaintiff made a statement in relation to the first car accident on 1 September 2008.
195       The plaintiff set out that she had undergone the surgery in the month before that accident and that she was rehabilitating. Subject to the outcome of that surgery, she was also considering a release of the right wrist.
196       The plaintiff described the circumstances of the first car accident and that the damage to the vehicle was extensive with the cost of repairs being in the order of $8,000.
197       The plaintiff described having suffered neck and lower back symptoms following the first car accident which progressively worsened, as did severe pain in her left hip, in relation to which she was referred by Dr Malek to Mr O’Donnell.
198       The plaintiff described her symptoms at that time as being a near constant burning type pain in her neck which often extended into her thoracic spine and at times her left shoulder. She was experiencing headaches on average three times a week. She also was experiencing near constant pain in her lower back and left hip.
199       In addition to her physical problems, the plaintiff had also noticed a change in her emotional state, often feeling down and suffering from periods of depression.
200       The plaintiff stated that her ongoing symptoms had a significant impact upon her day to day life. Prior to the first car accident she loved dancing and would frequently go to Macedonian functions. She had been unable to return to work as a result of her ongoing symptoms. She found it difficult to read for prolonged periods as her pain disturbed her and she tended not visit friends as much as was previously the case. She had problems with pain in her left shoulder, which she believed was related to her neck condition.
201       The plaintiff was cross examined in relation to the following passage:
“… prior to the transport accident it was my intention to return to work with Webco. I’d hoped to return to my work following the left wrist surgery and a period of rehabilitation.
I’d hoped that following surgery my condition would have improved sufficient to enable me to return to employment without limitation or restriction. Unfortunately the transport accident intervened. Up to that point I felt that the surgery had been successful and there was every prospect that a return to work would be manageable.

However, with the transport accident and the injuries and symptoms associated with that incident I have been prevented from returning to my former employment. In particular the symptoms in my neck and lower back have been the most problematic in this context.
In March 2008, I was involved in a second motor vehicle. I was the seat belted driver of a vehicle which was rear ended by another. There was moderate damage to my vehicle. The collision did exacerbate some of the symptoms in my neck and lower back for a period of time immediately after this incident but have since settled back to the situation before this. I have also had some additional difficulties in my right shoulder following this subsequent accident.
The transport accident and injuries I have sustained have had a very significant impact on my life.”

202       The plaintiff attended the Emergency Department of the Northern Hospital on 31 March 2008 following the second car accident. It was recorded that she hit her right shoulder on the side window and she complained of left hip pain and right shoulder pain.
203       The plaintiff gave a history of chronic right shoulder pain and rotator cuff tears. She was taking regular Voltaren and Panadeine after a workplace accident three years earlier. She also reported bilateral carpal tunnel syndrome with surgery.
204       In her Claim for Compensation dated 21 August 2008 relating to the second accident, the plaintiff claimed injury to her hip, left side, neck pain and shoulder pain - right side.
205       Mr Peter Turner, orthopaedic surgeon, first examined the plaintiff at the request of Mr O’Donnell on 1 June 2007.
206       The plaintiff told him that since the first car accident, she had been experiencing ongoing pain in her neck and lower back. She also had numbness in her left leg.
207       She told him that if she walked for too long she had to rest. She was taking Panadeine every day to try to get relief from her symptoms and was having weekly physiotherapy for her back.
208       Mr Turner organised x-rays and a CT scan of the plaintiff’s lower back which, in his view, showed degenerative changes consistent with a person of her age. Plain x-rays of the plaintiff’s cervical spine also showed some age- related degenerative change but no evidence of specific structural injury.
209       Mr Turner reviewed the plaintiff on 16 August 2007, at which time her symptoms continued, however, she felt the most pressing problem was left hip pain. He encouraged her to persevere with conservative treatment and left further review at her discretion.

210 Mr Turner considered the plaintiff had been experiencing symptoms predominantly muscular in origin. He noted, unfortunately, they followed a pattern all too frequently seen with people involved in that type of accident. He thought the plaintiff’s injuries were primarily soft tissue in nature and there was no evidence to suggest any major structural damage had been caused to the plaintiff’s spine.
211       Mr Moran, orthopaedic surgeon, examined the plaintiff on behalf of Burt and Davies, solicitors, on 21 April 2008.
212       The plaintiff told him she remained troubled by persistent neck and back pain. She had experienced symptoms of mild back pain and pain radiating to the left leg, in addition to numbness and paresthesia in the left foot. Walking provoked a sense of coldness and numbness in her leg and if she continued to walk she had a tendency to lose balance.
213       The plaintiff’s dominant symptom was lower back pain but she also experienced pain in her left groin and both buttocks. She experienced neck pain, particularly at night when sleeping, and this left her with persistent morning stiffness.
214       The plaintiff told him that at home she struggled to continue with the usual activities she was used to doing. Her husband had taken over difficult tasks, such as vacuuming and mopping, but she did manage some cooking and continued to shop with her husband. If she walked for thirty minutes she was forced to rest and she could not sit for longer than that time without standing and walking.
215       The plaintiff complained of persistent sleep disturbance, finding it extremely difficult to find a comfortable position in bed. She spent much of the day watching television and reading. She spread out tasks, such as clothes washing and dishwashing, throughout the day.
216       The plaintiff told him the second car accident had exacerbated her neck and lower back pain and she also had exacerbated symptoms of right shoulder pain. He noted examination of the right shoulder revealed signs of rotator cuff impingements which she attributed to her most recent transport accident.
217       Mr Moran noted the plaintiff described a significant transport accident in which her vehicle was struck on the left side at significant speed, resulting in a complex injury to her neck and lower back. He did not comment whether there was any incapacity relating to that accident.
218       The plaintiff was examined by Michael Epstein, psychiatrist, on behalf of Burt and Davies on 18 September 2008. She told him about work related and transport accident injuries and that the second car accident caused her more pain in her right shoulder, back and left hip.
219       On examination, Dr Epstein found that the plaintiff had no obvious impairment of intellectual functioning and perceptual judgment, but, in his view, she appeared to have some problems with thinking and behaviour. Her affect was restricted and she appeared depressed and anxious during the interview. Dr Epstein did not find evidence of any thought disorder, hallucinations or delusions.
220       Dr Epstein thought the plaintiff had continuing symptoms arising from the first car accident, including Post-Traumatic Stress Disorder with recurrent intrusive thoughts. In his view, as a consequence of the effects of the first car accident, combined with the work injury, the plaintiff’s level of depression increased and she now had a Chronic Adjustment Disorder with depressed mood. The subsequent transport accident exacerbated her physical and psychological symptoms and that exacerbation remained in relation to her psychological symptoms.
221       He considered the plaintiff had a psychiatric impairment of fifteen per cent, of which ten per cent arose from the transport accidents and the remainder from the work injury.
222       The defendant relied upon Mr O’Donnell’s report following examination on 15 February 2007. The plaintiff told him at that time of ongoing left hip problems since the first car accident and also a sensation of numbness in her left leg.
223       Mr O’Donnell noted that examination of the plaintiff’s lumbar spine and left hip at that time was unhelpful. He thought no cause for the plaintiff’s pain had been identified and he presumed it was primarily muscular in nature. He doubted any additional problems were likely to arise as a result of the car accident. The plaintiff was referred to Mr Turner regarding a possible spinal cause for her pain
224       Dr Khanna, from the Mill Park Super Clinic, provided a report dated 18 June 2009 confirming the plaintiff was examined by Ms Lewis, neurosurgeon, who had advised there were no surgical issues with the plaintiff’s back pain and that she would benefit from counselling. For that reason he recommended the plaintiff be seen by a psychologist.
225       Ms Lewis examined the plaintiff on referral from Dr Khanna in February 2009. The plaintiff told Ms Lewis of injury to her neck, back and left hip in the first car accident.
226       On examination, the plaintiff had pain in those areas, of which the worst was her lower back. The plaintiff told her she would still be at work if it were not for her hands and left elbow.
227       Ms Lewis noted the plaintiff had become symptomatic in her neck and back injuries. There was no surgical lesion. In Ms Lewis’ view, the major problem was the plaintiff reliving the accident, particularly at night, as she went off to the sleep. Ms Lewis thought the plaintiff would benefit from psychological counselling in that regard.
228       In June 2009, Dr Khanna reported that the plaintiff was currently being treated for back pain and leg pain due to a motor vehicle accident. Her medication at that time was Panadeine, Voltaren gel and Indocid.

Investigations
229       There was a CT scan of the cervical spine taken on 6 November 2006. It was concluded there was multi-level degenerative change. No definite evidence of an acute fracture was identified. There was non fusion of the posterior elements of C1 noted.
230       An MRI scan of the cervical spine on 7 November 2006 showed multi-level cervical spondylosis and neural foraminal stenosis. There was moderate to severe right-sided neural foraminal stenosis at C6-7, with compromise of the exiting right C7 nerve root. There was left-sided facet joint arthropathy from C2-3 to C4-5.
231       A CT scan of the abdomen and pelvis was performed on 8 November 2006.
232       An x-ray of the left shoulder taken 8 November 2006 showed the glenohumeral and acromioclavicular joints were enlocated and no convincing fracture was identified.
233       An x-ray of the cervical spine was taken on 18 December 2006 and an x-ray of the cervical and thoracic spine, pelvis and hips was taken at the Northern Hospital on 6 November 2007.
234       The plaintiff underwent an ultrasound of her left shoulder ordered by Dr Malek on 4 June 2007. There was sub-deltoid bursitis and acromioclavicular joint arthropathy. There was no intrinsic rotator cuff pathology seen. There was some restricted movement in abduction, and forward flexion was to seventy degrees.
235       A CT scan of the lumbar spine was carried out on 13 June 2007 and a cervical spine x-ray was taken on 20 June 2007. Both investigations showed degenerative change and loss of cervical and lumbar lordosis.
236       A CT scan of the cervical spine taken on 17 October 2007 showed changes of cervical spondylosis with disc degeneration and facet joint hypertrophy. There was possibly very mild impingement of the right C6 nerve.

Overview
237       The plaintiff relies principally on the injuries suffered by her to her elbows and wrists (“the bilateral upper limb condition”) during the period of employment rather than the tear to the rotator cuff suffered in the incident.
238       The defendant accepts that the plaintiff has some ongoing right carpal tunnel problem but that surgery has removed that problem on the left. Further, counsel for the defendant in opening accepted the plaintiff has bilateral epicondylitis, the extent and significance of which is in issue but in closing said “the elbows were out.”
239       In regard to the disputed conditions, I accept that the plaintiff has continued to suffer bilateral elbow problems of which she has complained to her general practitioners since 2004. These complaints have been subject of investigation and also she received cortisone injections in relation thereto some time ago.
240       Dr Strangward, in 2004, accepted the plaintiff had a lateral humeral epicondylitis of the right elbow. Further, the Medical Panel, in 2007, accepted the plaintiff was suffering from bilateral medial humeral epicondylitis. In 2009, Mr Miller found features suggestive of mild tennis elbow affecting both sides.
241       I also accept that the plaintiff has continued to experience bilateral wrist problems since 2004. Mr O’Donnell recommended surgery to the plaintiff’s right as well as the left wrist. The Medical Panel, whilst not accepting the presence of the left carpal tunnel syndrome, accepted the plaintiff had ongoing symptoms in that regard. Dr Lange, on his last examination in 2007, found left sided symptoms, and Mr Conroy accepted the plaintiff was suffering from bilateral median nerve entrapment at the wrists.
242       There is no medical support for an ongoing DeQuervain’s problem, the last mention of this complaint being made by Dr Gya in 2004.
243       Whilst no specific claim for compensation was made by the plaintiff in relation to the bilateral upper limb condition, her impairment benefit application in relation thereto was accepted.
244       Further, the defendant accepted liability for the payment of medical expenses relating to the bilateral upper limb condition and continues to pay them. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might
be able to satisfactorily explain its conduct.”

245       There is no dispute that the plaintiff suffered a right shoulder injury in the incident. The defendant accepts that the plaintiff suffered a “soft tissue injury to the right shoulder with at best a partial tear”. There is general medical support for the presence of a tear and resultant rotator cuff dysfunction, with Mr Miller also finding symptoms very suggestive of bilateral adhesive capsulitis. Whilst finding a tear, Dr Kostos was alone in the view that this was degenerative and not work related.
246       I accept that the plaintiff continues to suffer from bilateral carpal tunnel and to a lesser extent bilateral epicondylitis to her elbows resulting from her work duties. She also continues to experience problems associated with right rotator cuff dysfunction.
247 I am mindful, pursuant to Section 134AB(38)(h) of the Act that when considering the seriousness of an impairment or loss of body function, any psychological or psychiatric consequences of the physical injury must be excluded from my considerations.
248       Whilst there is mention by various doctors of the presence of some features of a chronic pain syndrome and inconsistencies in the plaintiff’s presentation on examination, having regard to the totality of medical evidence, I accept the plaintiff’s ongoing upper limb problems are organically based. There have been relevant findings on investigations of the wrists, right shoulder and elbows. Surgery has been performed on the plaintiff’s left wrist and advised in relation to her right wrist and shoulder. The plaintiff has also received five cortisone injections to her upper limbs.
249       Further, following mental status examination in February 2009, Dr Shan, psychiatrist, thought there was no psychiatric impairment or abnormal psychological condition. In his view, there was no functional overlay, conscious or unconscious exaggeration of symptoms or an attempt to feign injury for the purposes of a worker’s compensation claim.
250       In this case, where there is evidence of a pre-existing hand condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from her work duties is serious and permanent.
251       Whilst the plaintiff had some problems with swelling in her right hand in 1993, and she reported pins and needles in her hands to Dr Ristevski in 1995, these problems were not ongoing. She was able to work in various jobs until commencing work with the defendant in 2001 and did not require any treatment until after the said date.
252       It is clear enough two or more injuries arising from one incident may contribute to the one impairment: (Humphries v Poljak (1992) 2 VR 129, at 138).
253       I accept that the arm as a whole is a relevant body function. There are numerous decisions of the County Court to this effect, including Aird v Trade Paints per His Honour Judge Lewis, 27 October 2000) - arm-shoulder-elbow,
Brines v QBE Mercantile Mutual Worksure Ltd & SCS Refrigerated Transport
Pty Ltd [2005] VCC 1072, per Her Honour Judge Lawson - elbow and forearm, and Mijovski v South Pacific Tyres Pty Ltd [2007] VCC 1103 per His Honour Judge Higgins - right arm and right shoulder.
254       I am permitted to aggregate the elbow and wrist conditions as they arose out of the same system of work/ work duties.
255       The plaintiff’s claim was also put on the basis of a bilateral upper limb impairment. There was no submission by counsel for the defendant as to whether a claim on this basis is permissible where the injuries arose out of the same work process.
256       In Grech v Orica (supra), and Sabonovic v Atco Controls Pty Ltd (2009) VSCA 143 (18 June 2009), where the relevant compensable injury was bilateral carpal tunnel syndrome, this issue was not raised.
257       Whilst there is also authority of this Court to the contrary - see Judge O’Neill in De Luca v Pinkey & TAC [2007] VCC 1307, I accept, as Judge Duggan held in Raimondo v Hoi Yeung Pty Ltd (trading as Oceanic Food) [2005] VCC 1400, that where a worker has sustained injury using both hands in manual work, it would be difficult to accept that this did not represent the use of a single body function: see also Judge Misso in Guiliano v Red Robin Pty & Anor [2008] VCC 1805 and Judge Anderson in Wright v Mount Edisar [2006] VCC 410.
258       Thus I accept, in the present case, that the injury the plaintiff sustained to her hands and wrists was to a single body function, namely her capacity to work manually in a job that required use of both her hands in combination.
259       The provisions of Section 134AB(38) set out the narrative test for determining whether a plaintiff may make a claim for damages for pain and suffering and or loss of earning capacity. In relation to the latter, additional tests are imposed.
260       The narrative test requires that the consequences of the plaintiff’s impairment when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable.
261       The test requires a judgment based on an evaluation of all the evidence. The relevant consideration is the impairment, not injury.
262       I accept that as a result of her work duties, the plaintiff has had consistent, persisting complaints of pain and restriction of movement in both elbows and wrists.
263       Whilst there was surveillance film taken of the plaintiff shopping in December last year, it did not show a level of activity inconsistent with her evidence as to pain and disability.
264       The plaintiff is now aged fifty six. Her spoken English is quite good but her written and reading skills are poor. Her employment has always been of a manual nature, requiring the use of both hands, and she has had no particular training.
265       The plaintiff was a hard worker before the incident – described in the VWA Vocational Assessment of March 2006 as “solid work history, punctual, hard worker, working lots of overtime prior injury”.
266       The plaintiff has attempted to return to work on two occasions since 2004 but she was unable to cope, working only four hours a day in her normal duties, without any overtime.
267       Save for Dr Kostos, whose views in all regards are somewhat extreme, the consensus of medical opinion is that the plaintiff does not have a capacity for unrestricted manual work using both hands.
268       Further, Dr Ristevski continues to certify the plaintiff as having no work capacity, a situation he considers likely to continue in the long term. Mr Miller did not envisage a return to work due to the plaintiff’s upper limb injuries. The Medical Panel, in January 2008, having been made aware of the plaintiff’s transport accident injuries, found she had no current work capacity due to dysfunction of the rotator cuff of the right shoulder, mild right carpal tunnel syndrome and a mild Adjustment Disorder with depressed and anxious mood.
269       I do not accept the principal submission of counsel for the defendant that the plaintiff had recovered from her upper limb injuries when the first car accident occurred and but for that accident she would have otherwise returned to work.

270       Surgery to the left wrist had only taken place one month earlier and the plaintiff was understandably optimistic of a good result from that surgery following which she could return to work. This outcome was not achieved, the plaintiff has had ongoing problems and as a result, she has yet to undergo right wrist surgery suggested by Mr O’Donnell.
271       Focussing on the work related bilateral upper limb condition alone, I accept that the plaintiff no longer has the capacity to perform the only work in relation to which she has had experience, namely manual work.
272       Given her background, education and skills, the interference with the plaintiff’s working life caused by her bilateral upper limb condition is more than significant or marked. I accept that such interference is also permanent, in the sense that it is likely to last into the foreseeable future.
273       I am satisfied that the loss of earning capacity consequences of the plaintiff’s injury, when judged by comparison with other cases in the range of possible losses of body function, may be fairly described as being more than significant or marked and as being at least very considerable.
274       In order to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:

(a) at the date of the hearing she has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also
(b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
275       The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i) “without injury” earnings; and
(ii) “after injury” earnings.
The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
276       “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
277       It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
278       The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
279       I am therefore required to determine a “without injury” earnings figure.
280       Counsel for the plaintiff suggested $40,000 as the appropriate “without injury” earnings figure based on the plaintiff’s earnings of $39,159 in the 2003-2004 financial year.
281       Sixty per cent of that sum is $24,000. No alternative figures were put forward by counsel for the defendant.
282       I accept that this figure most fairly reflects the plaintiff’s earning capacity had the injury not occurred.
283       The plaintiff’s present income from personal exertion is nil.
284       The question is therefore what the plaintiff is capable of earning in suitable employment.
285       In Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, at 11, Buchanan AJ said, of S.5 of the Act and the definition of “suitable employment”:
“The definition directs attention to the realities of the labour market. It does require that regard is to be had to any return to work plan. A return to work plan must include an offer of suitable employment,[1] and such an offer may take the form of employment catering for the disabilities caused to a worker by injury, such as the position created for the respondent. It is one thing to have regard to a return to work plan for the light it may throw upon a worker’s ability to work, which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker’s special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s.134AB(38)(f). The definition does not require the second step to be taken.”
[1] See s.160 of the Act

286       Forrest J, in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 188, took into account the realities of the labour market when considering the question of suitable employment.
287       In the first two years after ceasing, work the plaintiff unsuccessfully attempted her old duties on two occasions.
288       Other employment options suggested as suitable for the plaintiff are now somewhat outdated. In particular, the assessment by WorkStreams is now three and a half years’ old and predates the left wrist surgery which was unsuccessful.
289 Taking into account the relevant factors under Section 5, I do not accept that the plaintiff could work as a telemarketer, call centre worker, sales assistant or as an enquiry and admissions clerk. She is now an older woman whose reading and writing skills are poor. She has no work experience in the areas suggested and has never worked in a job dealing with members of the public, having worked in a factory setting all her life. Further she has no computer skills.
290       As WorkStreams accepted in March 2006, the jobs of product quality controller, light process worker, light hand packer and light product assembler were unsuitable for the plaintiff as Dr Lange considered her unfit for work involving repetitive type movements.
291 Accordingly, I am not satisfied that the plaintiff has a capacity for suitable employment. She therefore has a loss of earning capacity of forty cent or more within the meaning of s.134AB(38)(e) of the Act which I am satisfied is permanent.
292       I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
293       In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more.
294       As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
295       If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd (supra) at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
296       Accordingly, I grant leave to the plaintiff in Originating Motion No CI-09-01254 to bring proceedings for damages for loss of earning capacity and pain and suffering.

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Citations

Ristovska v Voa Webco Pty Ltd (No 1) [2010] VCC 152

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Cases Citing This Decision

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Nguyen v Aisin Australia Pty Ltd [2012] VCC 779

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Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33

[2010] VCC 152

17 March 2010