Ryan-Orchard v Southern Health
[2020] VCC 1593
•16 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05298
| ELIZABETH RYAN-ORCHARD | Plaintiff |
| v | |
| SOUTHERN HEALTH (now MONASH HEALTH) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 16 October 2020 | |
CASE MAY BE CITED AS: | Ryan-Orchard v Southern Health | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1593 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the shoulders and spine – paragraph (a) of the definition of “serious injury” – leave sought for “pain and suffering” damages and “pecuniary loss” damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Transport Commission & O’Dea v Dennis [1998] 1 VR 702
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Ms G J Cooper | Hall & Wilcox |
HER HONOUR:
1 The plaintiff commenced work with the defendant, Southern Health (now Monash Health), in 2007 as a kitchen assistant on a part-time basis.
2 In 2014, the plaintiff lodged three WorkCover claims in respect of repetitive strain injuries to both her shoulders and her neck/upper back. The claims were rejected on the basis that the plaintiff did not suffer an injury which arose out of or during the course of her employment.
3 Between mid 2014 and mid 2015, the plaintiff performed light duties and worked reduced hours. The plaintiff has not returned to work since mid 2015.
4 In 2016-2017, the plaintiff undertook a Certificate IV in Property Services (Real Estate).
5 On 21 November 2015, the plaintiff lodged an impairment benefit claim in respect of the back and both shoulders.
6 On 1 February 2017, the impairment benefit claim was accepted in respect of the left shoulder, the right shoulder and a soft-tissue injury to the thoracic spine (“the injuries”).
The application
7 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury said to have occurred in the course of her employment with the defendant.
8 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
9 At the hearing of the application, the plaintiff was unrepresented, although her previous solicitors, Maurice Blackburn Lawyers, had prepared the Plaintiff’s Court Book and had arranged for current medical examinations of the plaintiff. The hearing was conducted by Zoom. The plaintiff was agreeable to this process.
10 Although the application initially lodged by the plaintiff sought to rely on paragraphs (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act, the plaintiff, at the hearing of the application, only sought to rely on paragraph (a) of the definition.
11 There “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function; … .”
12 The Plaintiff’s Court Book contained a medical report from Dr Brendan Hayman, consultant psychiatrist, who medically examined the plaintiff on 9 April 2020 for the purpose of providing a medico-legal report for the current proceeding. Dr Hayman obtained a current history from the plaintiff, undertook a psychiatric examination and concluded that she had no discernible psychiatric illness. Accordingly, the plaintiff did not proceed with her application under paragraph (c) in respect of a psychological disturbance or disorder.
13 The body functions relied upon were physical injury to the left and right shoulders and physical injury to the spine.
14 The plaintiff relied upon an affidavit sworn by her on 10 October 2018.[1] The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was contained in their respective Court Books.
[1]Plaintiff’s Court Book (“PCB”) 10-18
15 I have read all the material in the Court Books.
The conduct of the application
16 The application was transcribed. At the conclusion of the plaintiff’s cross-examination, I adjourned the proceeding to enable the plaintiff to review the transcript of her evidence. The purpose was to enable the plaintiff to consider whether she wished to clarify any of her evidence from cross-examination.
17 I also ordered that the defendant provide to the plaintiff a copy of any submissions the defendant wished to make to the Court, in writing, which would enable the plaintiff to understand the defendant’s argument. I adjourned the hearing of the application to 1 September 2020 to enable the plaintiff time to read the transcript and submissions of the defendant to determine whether she wished to put any further evidence to the Court and to prepare any submissions she wished to make to the Court.
18 On the return date of 1 September 2020, the plaintiff confirmed that she had received the transcript and the defendant’s written submissions and had reviewed them. I asked the plaintiff whether there was any further evidence she wished to put before the Court. The plaintiff reiterated some of the consequences of her injuries.
19 Counsel for the defendant made submissions to the Court, in the terms of the written submissions. The plaintiff was given the opportunity to make further submissions to the Court.
Relevant legal principles
20 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.
21 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) the injury suffered by her arose out of, or in the course of, or due to the nature of her employment with the defendant;
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;
(c) “the consequences” to the plaintiff of her impairment to the spine or shoulder injuries in relation to “pain and suffering” must be “serious”; that is, “when judged by comparison with other cases in the range of possible impairments … [be] fairly described as being more than significant or marked, and as being at least very considerable”; and
(d) the consequences of her spinal or shoulder injuries are productive of a loss of earning capacity of 40 per cent or more (economic loss).
22 In addition, in relation to “loss of earning capacity consequences,” the plaintiff has a specific burden to establish:
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain relevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;
(c) this requires a comparison of what the plaintiff is capable of earning with the injury (the “with injury” earnings), and what she was capable of earning had the injury not occurred (the “without injury” earnings); and
(d) that even with rehabilitation and retraining, she will still sustain a loss of earning capacity of 40 per cent or more.
23 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; that is, for both pain and suffering and loss of earning capacity.
24 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
25 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Commission & O’Dea v Dennis:[2]
“… Many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[2][1998] 1 VR 702
26 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purpose of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;
(b) must make an assessment of “serious injury” at the time the application is heard; and
(c) notes that it has been observed that the question of whether an injury satisfies the narrative test is largely a question of impression and value judgment.
The issues
27 Counsel for the defendant submitted the following issues arise:
(a) there is a conflict between the medical evidence, the plaintiff’s presentation to doctors, and the plaintiff’s subjective complaints;
(b) whether the plaintiff’s injuries continue to contribute to the plaintiff’s presentation;
(c) whether there is a substantial organic basis for the claimed consequences of the injuries; and
(d) the reliability of the plaintiff’s evidence. The defendant submits that the plaintiff has a perception that she is more impaired than she in fact is, such that the nature and extent of her pain and disability is exaggerated and unreliable.
28 Based on the evidence, the defendant submitted:
(a) the plaintiff’s injuries have resolved and are no longer a material cause of her impairment;
(b) to the extent the injuries have not resolved, the consequences are not “more than significant or marked, and at least very considerable”; and
(c) the plaintiff has a retained capacity for employment and has not suffered a loss of earning capacity of 40 per cent or more.
Credit
29 The plaintiff is aged fifty-four. She was born in the Philippines, where she was educated to the equivalent of Year 12. She undertook nursing studies, which she did not complete. She obtained a diploma in computer studies in the Philippines.
30 The plaintiff migrated to Australia in 1978. She worked for approximately one year in the late 1990s at The Alfred hospital as a kitchen assistant. She commenced employment with the defendant at the Monash Hospital in Clayton in 2007. She was employed in the food preparation area as a kitchen assistant on a part-time basis. She also delivered food to the patients.
31 The plaintiff was pleasant and co-operative in Court. She spoke very quickly, and was difficult to follow and understand. On occasions, she did not always provide answers to specific questions but would volunteer information about the pain she suffers, or how she was injured at work. She repeatedly told the Court that if she was to return to work, she would suffer pain. On occasions, she made concessions, namely that her pain levels have improved since she ceased work five-and-half years ago.
32 Several witnesses reported difficulties in obtaining information from the plaintiff.
33 Mr Simm, orthopaedic surgeon, examined the plaintiff in 2015, and again in 2020. Mr Simm said the plaintiff presented as a pleasant and co-operative person on physical examination.
34 In relation to the 2015 interview, Mr Simm reported that the interview was a very difficult medical interview. He said the plaintiff seemed to be co-operating, but she was a rambling historian and did not always provide specific relevant responses to the questions asked. He said, “it was almost impossible to obtain a sequential history of symptoms”.[3] He accepted that the difficulties he had in obtaining a history may have aged, in part, to a language difficulty.[4]
[3]Defendant’s Court Book (“DCB”) 37. These comments were repeated in May 2020: DCB 48
[4]DCB 39
35 Mr Simm noted that during the interview, the plaintiff moved both shoulders without evidence of restriction. She frequently lifted either the right or left arm overhead, and externally rotated the shoulder to reach down to the upper thoracic spine and scapular region to show where the pain was. He noted that this contrasted with the marked pain behaviour on performing similar movements when formally examined.
36 In September 2015, Mr Simm was provided with a DVD dated 23 July 2015 of surveillance taken of the plaintiff on 16 and 17 July 2015, which he reviewed. Mr Simm reported that the activities on the DVD were not unexpected, as, during the interview, the plaintiff moved both shoulders without evidence of restriction. After viewing the DVD, he said he was not able to establish the diagnosis of an ongoing physical condition to explain her symptoms, which are inconsistent and seem to be non-organic in nature.[5]
[5]DCB 46
37 In January 2017, Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer for the purpose of providing a Whole Person Impairment (WPI). He assessed the plaintiff with a whole person impairment at 13 per cent.[6]
[6]DCB 59-66
38 Subsequently, Mr Moran was provided with:
(a) the DVD of surveillance of the plaintiff dated 23 July 2015;
(b) a report of Mr Kenneth Brearley, neurosurgeon, dated 5 June 2015, where Mr Brearley reported that the plaintiff demonstrated a full range of movement of both shoulder joints;
(c) a report of Dr Olga Horn, general practitioner, who stated the plaintiff had full movements of both shoulders; and
(d) Mr Simm’s report of 12 September 2015, where he stated that “evidence suggests she has recovered or largely recovered from any physical injury”.[7]
[7]DCB 46
39 After reviewing the surveillance and reports provided, Mr Moran concluded that the plaintiff had not demonstrated her actual range of movement of both shoulders when seen by him in December 2016. Mr Moran revised his assessment to, at most, a whole person impairment of 4 per cent, which was confirmed by the Medical Panel in March 2017.
40 In May 2020, Mr Simm re-examined the plaintiff and made similar comments about the plaintiff’s presentation as he made in September 2015. He had been provided with further surveillance of the plaintiff in 2019, which indicated the plaintiff had greater capacity than she had reported at the examination.
41 Dr Barton, occupational physician, said the plaintiff’s claims that her injuries were related to the general nature of her work was not supported by the fact that she had ceased work five-and-a-half years ago, and her condition had barely improved.
42 Further, the plaintiff demonstrated inconsistent ranges of movement on several medical examinations.
43 I note that Mr Paul Hartley, vocational assessor, of Vocational Directions Pty Ltd, retained by the plaintiff’s solicitor, made a similar finding in relation to the plaintiff’s presentation. He said as follows:[8]
“Ms Orchard was a particularly difficult interviewee, although she appeared to attempt to be cooperative. It was extremely difficult to keep her focused, despite trying to draw her back into the interview and questions being re-asked of her frequently, and I was unsure as to her level of comprehension as even though I rephrased and simplified very many questions she did not appear to understand me. Her mode of speech was rapid at times, and she was difficult to keep on topic, often going off on a tangent about unrelated matters. A casually dressed woman of older middle age, she sat throughout most of the 2+ hour assessment but stood on 3 occasions. She attended alone and assistance would have been helpful.
I preface this report by stating that the information provided to me by Ms Ryan-Orchard, the information in her Affidavit and the information in medical reports provided to me are contradictory in some instances, the medical reports received are well outdated and I am, as noted, unsure as to the accuracy of the information provided to me by your client due to her rather bizarre and difficult presentation throughout the assessment.”
[8]PCB 74-75
44 Ms Rebekah Raftopoulos, career development practitioner/vocational counsellor, of CoWork Pty Ltd, interviewed the plaintiff at the request of the defendant’s solicitor for the purpose of providing a report[9] considering the plaintiff’s vocational profile and residual physical capacity to identify occupations and re-training options which will provide the plaintiff with suitable employment options for her future.
[9]DCB 73-117
45 Ms Raftopoulos described the plaintiff as friendly and open, and rapport was immediately established and maintained. She noted that throughout the interview, the plaintiff digressed off topic frequently and appeared to find it difficult to provide clear and concise answers to questions. She was a poor historian and appeared muddled by dates. She noted that the plaintiff sat comfortably throughout the interview and requested a short break of five minutes to get a drink. The plaintiff reported postural tolerances. Of significance was that she reported a sitting tolerance of “maybe twenty minutes” and a lifting tolerance of one kilogram using both hands. The plaintiff specified to Ms Raftopoulos that she can lift only 500 grams in each hand.
46 The plaintiff’s tolerance relating to sitting was inconsistent with the surveillance, her presentation in Court and at interview with Ms Raftopoulos. The lifting tolerance reported by the plaintiff was inconsistent with what she reported to medical witnesses, her evidence in Court and the surveillance.
47 Ms Raftopoulos said the plaintiff did not convince her that she was motivated to return to work. While the plaintiff said she wanted to work, she said “… but sometimes I need a rest”.[10]
[10]DCB 87
48 English was the plaintiff’s second language, which would explain to some degree her communication issues, namely her inability on occasions to express herself and elaborate on answers to questions.
49 The plaintiff was the subject of surveillance on 16, 17 and 23 July 2015 and 22 October 2019. The surveillance footage was shown in Court, and to several of the medical witnesses, being Mr Simm, Mr Moran and the Medical Panel. Mr Simm was the only medical witness to review both surveillance footage. Mr Moran and the Medical Panel reviewed surveillance of 23 July 2015. Mr Simm and Mr Moran changed their views after reviewing the surveillance.
50 In relation to the surveillance, the plaintiff said in Court that as she has not been working, she is able to do the things observed on the surveillance. She said she finds seeing her friends for coffee relaxing. I accept that the plaintiff was observed on the surveillance and by medical witnesses exhibiting a capacity greater than what she deposed and what was observed in formal examinations.
51 Overall, I considered the plaintiff was an unreliable witness whose evidence had significant inconsistencies. Accordingly, I will more readily accept her evidence when it is supported by independent evidence.
The medical evidence
52 The medical evidence was expressed by:
· Dr Gale Curtis, orthopaedic surgeon
· Dr Olga Horn, general practitioner
· Ms Jacqueline Gurr, physiotherapist
· Dr Adele Farag, general practitioner
· Mr Kenneth Brearley, surgeon
· Mr Rodney Simm, orthopaedic surgeon
· Mr Gerald Moran, orthopaedic surgeon
· Dr David Barton, occupational physician
· The Medical Panel
· Dr James Rowe, occupational physician
· Mr Austin Vo, orthopaedic surgeon; and
· Professor Peter Teddy, neurosurgeon
Dr Gale Curtis
53 In September 2014, the plaintiff was examined by Dr Curtis, orthopaedic surgeon, at the request of the defendant’s insurer. The plaintiff reported to Dr Curtis a slow onset of pain, first in her right and more latterly her left shoulder, with associated neck stiffness, a background of some aching in her neck and shoulder but not as severe as occurred in January 2013, when she was carrying a heavy tray and was required to lift and wash a heavy container of dishes. She returned to work performing light duties, working four hours per week, with a lifting restriction limit of 5 kilograms with no forward reaching.
54 In September 2014, the plaintiff reported pain in both shoulders, disturbed sleep and her activities of daily living being compromised. The plaintiff reported no history of shoulder or previous spinal problems
55 Dr Curtis said the plaintiff’s ultrasound confirmed tears of her supraspinatus tendons, which are small and of little significance. He thought her problem was in her cervicothoracic spine. He said the rotator cuff pathology is degenerative in nature and that employment has been in part responsible.
56 Dr Curtis said the plaintiff has no capacity for her pre-injury employment. He said her current working hours of four hours per week with restrictions is probably appropriate. He said the plaintiff had not received appropriate treatment.
57 I note that there is no recent medical material from Dr Curtis. Given the plaintiff was examined by him in 2014, his report is of limited assistance.
Dr Olga Horn
58 In December 2014, Dr Olga Horn, general practitioner, reported that the plaintiff suffered from bilateral tendinitis/bursitis with impingement in both shoulders, and muscular skeletal pain in her upper back. She accepted the plaintiff’s work as a kitchenhand contributed to the plaintiff’s condition. She said the plaintiff could perform light duties, avoiding heavy lifting and repetitive activities that aggravate pain, pacing herself and taking frequent breaks.
59 In February 2015, Dr Horn said the plaintiff had a full range of movement in both shoulders and very mild discomfort on abduction. She said the plaintiff is likely to benefit from steroid injections in both shoulders and ongoing physiotherapy for her shoulder and back complaints.
Ms Jacqueline Gurr
60 The plaintiff underwent physiotherapy treatment at Lakeview Physio and then, in February 2015, at Back in Motion with Ms Jacqueline Gurr. Ms Gurr stated that after five sessions she saw good improvement in the plaintiff, who reported no difficulties in her neck but an ache in her right arm. Ms Gurr anticipated the plaintiff would make a full recovery.
Dr Adele Farag
61 In February 2015, the plaintiff attended Marina Medical Centre. Dr Adele Farag, general practitioner, reported a good prognosis was anticipated and that the plaintiff could continue working with the assistance of proper medical support.
Mr Kenneth Brearley
62 In June 2015, at the request of the plaintiff’s then solicitor, the plaintiff was medically examined by Mr Kenneth Brearley, surgeon. Mr Brealey diagnosed rotator cuff tears of the supraspinatus portions of the rotator cuff on both right and left sides and a significant soft tissue injury of the neck which has settled. He recorded a full range of movement of both shoulder joints and slight tenderness over the back of the neck. He said the neck tenderness was the cause of her shoulder symptoms which have significantly settled with the enforced rest which she had. It was his opinion that if the plaintiff were to undertake physical work, she would have a recurrence of her neck and shoulder symptoms.
63 Mr Brearley accepted the plaintiff’s injury was work related. He said her incapacity for work is partial and permanent. He said she should not return to physical work putting stress on her neck and shoulders and did not require significant medical treatment in the future other than simple analgesics such as Panadol.
Mr Rodney Simm
64 In August 2015, Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. The plaintiff reported:
(a) some improvement since she had ceased work but stated she continues to have pain daily in the upper thoracic spine and across the scapular region, particularly on the left;
(b) pain extending up into her neck and some localised pain over the deltoid region of both shoulders;
(c) the left shoulder being worse than the right and pain radiating down the left arm to the palm and base of the thumb with numbness in the fingers of the left hand;
(d) restricted movement of the neck which is painful if she turns her head from side to side.
65 Mr Simm said the plaintiff had some restriction of shoulder movement but was able to reach overhead and reach the back of her head but cannot reach up fully behind her back to fasten zips. The plaintiff expressed concern that she had a 9-millimetre tear in the left shoulder and a 5-millimetre tear in the right shoulder. She said the aching pain caused “tears in her eyes” and “she didn’t want to die because she had children”.
66 Mr Simm said the plaintiff moved both shoulders without evidence of restriction. She frequently lifted either the right or left arm overhead and externally rotated the shoulder to reach down to the upper thoracic spine scapular region to show where the pain was. He said this was in contrast to the marked pain behaviour on performing similar movements when formally examined.
67 Mr Simm said there was a substantial component of non-organic and/or psychological factors contributing to her clinical course.
68 In relation to the shoulders, Mr Simm said there are reported changes of rotator cuff pathology in both shoulders, which would not be uncommon in the general population of her age and does not necessarily indicate the presence of symptoms. However, there were features of impingement on examination of the shoulders, albeit in the presence of amplified and atypical physical signs. He accepted that symptomatic rotator cuff tendinitis could be exacerbated by her work duties but said there was considerable amplification of the pain illness response.
69 In relation to her upper back, Mr Simm was unable to establish a diagnosis of the physical condition to explain her upper back symptoms. He said the left scapular symptoms are suggestive of referred pain from the cervical region but may also be referred pain from the upper thoracic spine.
70 In relation to the neck, Mr Simm could not establish a definitive diagnosis to explain the mildly painful restriction of cervical movement. He said cervical pain is a common symptom in the general population. He noted that the plaintiff reported symptoms down the left arm to the fingers of the left hand but said the symptoms are atypical and there are no clinical signs of radiculopathy.
71 Mr Simm said he was not able to make a definitive decision regarding whether or not there is a painful physical condition but believed she should be given the benefit of the doubt and that as a result of repetitive work, she has experienced musculoskeletal physical symptoms. He accepted that repetitive work duties could be responsible for exacerbating symptoms in the neck and upper back if there were some underlying degenerative changes. Similarly, the repetitive work duties with the upper limbs could be responsible for exacerbating symptoms from degenerative rotator cuff pathology.
72 Mr Simm accepted the work was of a relatively light nature and said the only reason for her to develop symptoms would be that she had an underlying predisposition for symptoms as a result of degenerative pathology. He accepted she had a physical capacity to undertake work with her arms close to her body. He said she was entrenched in the process of pursuing a rejected WorkCover claim for rather widespread musculoskeletal pain.
73 Mr Simm viewed the surveillance DVD dated 23 July 2015 where he identified the plaintiff operating a gaming machine and was filmed shopping. He said much of the activities depicted on the surveillance were not unexpected as he had identified in his report that during the interview he conducted with the plaintiff, she moved both shoulders without evidence of restriction. He said her activities during the film showed no evidence of restriction of either upper limb. In relation to the surveillance, he noted that the plaintiff:
· moved both upper limbs rapidly;
· reached out away from her body frequently to shoulder height, or just above shoulder height;
· reached up into the overhead position with both hands to operate the rear boot lid; and
· handled and carried shopping items without evidence of restricted motion of her neck.
74 Mr Simm was of the view that while the plaintiff may have sustained an injury at work, the evidence suggests she had recovered, or largely recovered, from any physical injury.
75 In May 2020, the plaintiff was re-examined via Zoom by Mr Simm. The plaintiff reported no significant change since her last examination. Mr Simm noted the plaintiff’s treatment has been minimal, she had a repeat ultrasound of the shoulders which showed a 5-millimetre tear in the right shoulder and a 9-millimetre tear in the left shoulder. She was prescribed Ibuprofen for her musculoskeletal pain. She performs stretching exercises and has attended five physiotherapy treatments to the shoulder girdle region under Medicare. She reported constant pain which varies from low-grade pain to more severe pain.
76 On examination, Mr Simm said the plaintiff was very animated. She rapidly moved her arms through a normal to near normal range of movement. He noted that when last examined, there was marked pain and illness behaviour, which was not evident at the second examination.
77 In summary, Mr Simm said there was mild restriction of cervical motion with minor left-sided stiffness and pain. There were no abnormal findings on examination of the right shoulder. There were minor abnormal subjective findings on examination of the left shoulder, with minor restriction of full elevation and abduction, and discomfort on internal rotation.
78 Mr Simm viewed the investigations of 2017 which included ultrasounds of the shoulders, which showed no tears and minor changes of bursitis in the left shoulder only. The MRI scan of the cervical spine showed degenerative disc changes which he said would be common in the general population. These changes may be asymptomatic but could be responsible for left scapular pain and referred pain into the left arm.
79 In 2020, it was his opinion that the plaintiff’s symptoms can be explained based on the diagnosis of constitutional degenerative changes in the cervical spine. He said there was no ongoing condition of the right shoulder. It was possible she has minimal impingement in the left shoulder from rotator cuff tendinosis but her left shoulder is almost normal, and the mild inhibition of movement can be explained based on referred pain from the cervical spine.
80 Mr Simm said the plaintiff has not suffered a physical injury which has led to persistent organically-based symptoms. She may have experienced pain in the workplace with her work duties, but this would be an exacerbation of symptoms from underlying degenerative pathology which would resolve once work ceased.
81 In a further report dated 20 May 2020,[11] Mr Simm said he reviewed the bilateral shoulder x-ray and ultrasound dated 24 February 2020. He said that the ultrasound report of 5-millimetre and 7-millimetre partial-thickness tears in the supraspinatus tendon of the right and left shoulders, in isolation, is of no relevance. He said any pathology in the right shoulder is now inactive and not responsible for signs or symptoms. Mr Simm said that the plaintiff does have some minimal restriction of left shoulder motion which he did not believe related to the changes in the ultrasound but were due to referred pain from the cervical spine.
[11]DCB 55-58
Mr Gerald Moran
82 In December 2016, Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer in respect of the Impairment Benefit Claim (IB) claim. The plaintiff reported:
· pain in both shoulders present most of the time;
· restricted shoulder movement;
· constant pain between her shoulder blades; and
· restricted back movements.
83 Mr Moran assessed the plaintiff as having a 13 per cent whole person impairment.
84 Mr Moran was provided with the surveillance of July 2015. After reviewing the surveillance, in a report dated January 2017,[12] he said the plaintiff revealed flexion of both shoulders well over 90 degrees when she reached up to lower the boot of her motor vehicle. He stated that the plaintiff did not reveal any evidence of shoulder pain during the quite long video. He believed that the plaintiff did not demonstrate her actual range of movement of both shoulders when examined on 13 December 2016. He revised his whole person impairment assessment to at most 4 per cent.
[12]DCB 65-66
Medical Panel
85 On 31 March 2017, the Medical Panel reviewed the impairment benefit claim.[13] The Panel agreed with Mr Moran that a 4 per cent whole person impairment was appropriate.
[13]DCB 28-35
86 The Medical Panel noted the range of movement was reduced on examination, but the plaintiff showed a greater range of movement when distracted, consistent with a degree of illness behaviour. The Panel noted:
(a) an x-ray of the cervical spine dated 27 January 2015 showed age-appropriate mild degenerative changes; and
(b) an ultrasound of the shoulders taken on 17 January 2017 showed mild bilateral sub-acromial thickening, but was otherwise within normal limits.
87 The Medical Panel noted that the actions of the plaintiff in the surveillance DVD were consistent with the plaintiff’s variable presentation on formal examination. The Medical Panel diagnosed persisting thoraco-lumbar symptoms and mild bilateral shoulder dysfunction because of mild soft tissue injury to the shoulders.
Dr David Barton
88 On 24 January 2020, at the request of the defendant’s solicitor, the plaintiff was medically examined by Dr David Barton, occupational physician.[14] The plaintiff reported that she ceased employment five-and-half years ago and is only now about 30 per cent better.
[14]DCB 67-72
89 Dr Barton said, on clinical examination, there was no evidence of any ongoing physical problem. He was of the view that there were several findings which did not fit with a straightforward condition and suggested a degree of overlay and exaggeration as playing a part. He referred to the deliberate limitation of left and right shoulder movements to be the same; the generalised weakness in both arms which is not physically based, and the lack of any clear physical evidence of any problem that accounts for these symptoms.
90 Dr Barton noted that investigations showed a range of what were considered minor radiological findings typical of people of the plaintiff’s age group. He concluded that the plaintiff was symptom disability focused with a fairly strong sense of injury. He said the plaintiff generally moved in a free and easy manner. He said her claims that her problems were related to the general nature of her work are not supported by the fact that she ceased employment five-and-half years ago and her condition has barely improved.
91 From a physical point of view, he could see no reason why she could not return to pre-injury duties. He concluded that there was no permanent incapacity.
Dr James Rowe
92 On 10 March 2020, the plaintiff was medically examined by Dr James Rowe, occupational physician, at the request of the plaintiff’s previous solicitors.[15] Dr Rowe was provided with limited material, including some of the radiology material, namely investigations in 2014 and the most recent x-ray and ultrasound of February 2020.
[15]PCB 48-54
93 Dr Rowe said the plaintiff described pain in her shoulders that radiates to both upper arms and into her hands and says it is difficult for her to perform activities that require the use of her arms with any strength or above shoulder height. Dr Rowe reported very limited range of movement in both shoulders and said she was unable to move her neck normally. He diagnosed rotator cuff tears, bursitis and impingement of both shoulders, as well as a soft tissue injury to the neck which he attributed to work. He said she was not fit for unrestricted full-time pre-injury duties but has a capacity for employment in part-time sedentary work. He said real estate would be a good option for the plaintiff.
94 Dr Rowe did not view the surveillance footage of October 2019. The restriction of neck and shoulder movements noted by Dr Rowe are not consistent with the surveillance footage nor are they consistent with the findings on examination of other medical witnesses. I consider Dr Rowe’s evidence is of limited value.
Mr Austin Vo
95 On 25 March 2020, the plaintiff was examined, via Telehealth, by Mr Austin Vo, orthopaedic surgeon, at the request of the plaintiff’s previous solicitor.[16] The range of movements recorded by Mr Vo were significantly greater than those recorded by Dr Rowe ten days earlier, including:
[16]PCB 55
(a) forward flexion of 150 degrees, compared to 80 to 90 degrees recorded by Dr Rowe; and
(b) Mr Vo noted the plaintiff had difficulty lifting a one-litre bottle of milk with the left shoulder, but not with the right shoulder.
96 Mr Vo said the plaintiff is restricted in repetitive, overhead activity but her restrictions are not permanent as there is the possibility of improvement with ongoing treatment. Further, she could not return to full-time unrestricted work in her pre-injury position. However, he said she has a realistic capacity for work, avoiding physical and overhead work. He recommended a subacromial cortisone injection under ultrasound-guidance.
97 The difficulties observed by Mr Vo when the plaintiff was lifting a one-litre bottle are not consistent with the surveillance footage of the plaintiff which showed her carrying milk and other grocery items in both hands without difficulty.
Professor Peter Teddy
98 In April 2020, the plaintiff was medically examined by Professor Peter Teddy, neurosurgeon, at the request of the plaintiff’s previous solicitor.[17] The examination was conducted via teleconference and comprehensive neurological examination was not possible. Professor Teddy said that the plaintiff reported:
[17]PCB 61-65
· dropping coffee cups due to diminished grip;
· she can drive but getting out of the car is very slow;
· she registers her pain as often being near 10, on 0 to 10 scale of severity.
99 Professor Teddy said the plaintiff moved and gesticulated freely. He reported that on clinical grounds, the x-rays of the cervical and thoracic spine in 2014 showed very little in the way of abnormality.
100 The plaintiff’s reported restrictions to Professor Teddy are inconsistent with what is seen on the surveillance footage of October 2019. The plaintiff was seen to hold glasses and other objects in her hands without difficulty. The plaintiff is seen to get into and out of her car normally.
101 Professor Teddy conceded the plaintiff had a capacity for work of a very sedentary nature. He deferred to the expert opinion of an orthopaedic surgeon in relation to the imposition of restrictions, the plaintiff’s ability to return to full-time unrestricted work, and further treatment. He noted that he was not supplied with any recent investigations.
Analysis
102 I must assess the plaintiff at the current time. The current medical evidence was expressed by Mr Simm, Dr Barton, Dr Rowe, Mr Vo and Professor Teddy.
103 Between 11 December 2015 and 24 October 2016, the plaintiff did not attend either the Cove or Marina Medical Centres. On 24 October 2016, the plaintiff attended the Marina Medical Centre reporting a sore neck for five days. In January 2017, the plaintiff reported shoulder pain.
104 Between January 2017 and January 2020, there were no treating or medico-legal reports covering that period.
105 On 23 March 2020, the Cove Medical Clinic provided a short report which stated that the plaintiff has ongoing pain in both shoulders but has a good prognosis. A review of the clinical notes of the clinic showed that between 11 December 2015 and 25 October 2019, there were no attendances at the clinic for shoulder or back pain. The plaintiff only attended the clinic on 25 October 2019 and 10 February 2020 reporting pain in both shoulders.
106 Between 2017 and 2020, there were multiple attendances by the plaintiff at the Marina Medical Centre which recorded several medical issues, including shoulder and neck problems, dizziness, tennis elbow, chronic vertigo and mild cognitive impairment.
107 There is no report from the Marina Medical Centre relating to the plaintiff’s current condition, what treatment has been undertaken, or the plaintiff’s employment prospects.
108 Medical reports were obtained by both the plaintiff and the defendant in 2020.
109 Mr Simm, orthopaedic surgeon, was the only medical witness to examine the plaintiff on more than one occasion, having examined the plaintiff in August 2015 and in May 2020. He was the only medical witness to comment in detail on the current radiology of February 2020, although I note that Dr Rowe had access to a copy of the report which he said demonstrated partial tears in the rotator cuff as well as tendonitis.
110 Mr Simm was provided with the plaintiff’s extensive medical records dating back to 2013 of the two medical practices the plaintiff attended, including radiology and reports of 4 November 2013, 26 June and 10 and 22 October 2014, and 27 January 2015; and medical reports of the plaintiff’s treating practitioners of 2014 and 2015, which he commented upon in his report of 25 August 2015.[18]
[18]DCB 36-44
111 For the purpose of Mr Simm’s examination of the plaintiff in May 2020, he reviewed further radiology material of 17 January, 3 May, 23 August and 1 September 2017, together with medical reports. Mr Simm commented on the bilateral shoulder x-ray and ultrasound of 24 February 2020 in his report of 20 May 2020.[19]
[19]DCB 47-54
112 Both Mr Vo and Professor Teddy stated that they were not provided with imaging reports and relied on the previous citing of past medical reports. They were limited to radiology as at 2014.
113 It was unclear from Dr Rowe’s report whether he had access to radiology other than the 2020 report which he specifically mentioned.
114 Further, Mr Simm was the only medical witness to review the surveillance footage of 2015 and 2019 which showed the unrestricted use by the plaintiff of her arms and neck. Accordingly, I accept that he had a comprehensive understanding of the plaintiff’s medical history and condition, unlike the other current medical specialists. Furthermore, Mr Simm’s specialty was as an orthopaedic surgeon. His reports contained a thorough discussion of the medical issues. I rely more heavily on Mr Simm, due to his area of expertise and his comprehensive and complete picture of the plaintiff’s condition.
115 The surveillance footage showed the plaintiff performing activities she reported to the current medical witnesses that she could not perform. For example Dr Rowe recorded that the plaintiff had difficulty performing any activities that required the use of her arms with any strength at or above shoulder height. The plaintiff was seen in the surveillance as well dressed, wearing high-heeled shoes, and carrying a bag under her arm, opening and closing the boot of her vehicle without difficulty, getting in and out of her vehicle normally and carrying groceries in both hands with ease. She was seen to carry cartons of milk in her right hand and other items of shopping in her left hand.
116 Dr Rowe said the plaintiff demonstrated a very limited range of movements in both shoulders, which he recorded. Ten days later when the plaintiff was examined by Mr Vo, he recorded a much greater range of movement than Dr Rowe, namely forward flexion of 150 degrees, rather than 80 or 90 degrees as recorded by Dr Rowe. The plaintiff was asked by Mr Vo to lift a one-kilogram bottle of milk, which she could do with the right but not with the left arm. The surveillance showed the plaintiff carrying milk and other grocery items in both hands, without difficulty. Mr Vo did not view the surveillance.
117 Professor Teddy reported that the plaintiff told him she dropped coffee cups due to diminished grip, she can drive but getting out of the car is very slow and her pain levels are near 10 out of 10. He noted that the x-rays of the cervical/thoracic spine at the time of onset of symptoms show very little in the way of abnormality. Professor Teddy did not view the surveillance which was inconsistent with what she reported.
118 I note that the 2015 and 2019 surveillance showed the plaintiff holding glasses and other items in her hands without difficulty for a significant period of time. The plaintiff got into and out of her vehicle freely.
119 In his view, Dr Barton said the plaintiff’s claims that her injuries are related to the general nature of her work could not be supported by the fact that the plaintiff ceased work five-and-half years ago, and, according to her, her condition had only improved 30 per cent. He said there were features of exaggeration in her presentation.
120 Based on the current opinions of Mr Simm, Dr Barton, the age-appropriate radiological findings, the plaintiff’s own evidence and presentation in Court and the significant surveillance footage which showed unrestricted use by the plaintiff of both her arms and neck, I accept that the plaintiff’s work-related neck and shoulder injuries have now resolved.
121 I accept that the plaintiff does not have an ongoing work-related injury to her neck and upper limbs and any ongoing symptoms she has in her neck and upper limbs are minor and degenerative.
122 Accordingly, I dismiss the plaintiff’s serious injury application.
123 I must assess the plaintiff as at the date of the hearing. Based on my reasons above, the plaintiff has not satisfied the Court that she currently suffers an injury which arose out or during the course of her employment. In circumstances where this plaintiff had satisfied that she had a sustained a serious injury it would be necessary for the plaintiff to satisfy the economic loss test and pain and suffering test. I will, out of an abundance of caution, consider whether the plaintiff satisfies the test for economic loss and pain and suffering.
Economic loss
124 The plaintiff has a specific burden to establish economic loss in accordance with the economic loss test outlined at paragraphs 22, 23 and 24 of my reasons above.
125 At the time the plaintiff suffered injury, she was working an average of twenty-one hours per week with the defendant. Based on the plaintiff’s taxation returns, the plaintiff’s highest earnings over the relevant six-year period was in the financial year 2014, being $21,671 gross or $416.75 per week.
126 The 60 per cent figure is therefore $250.05 per week.
127 The defendant relied upon the CoWork vocational assessment report dated 18 May 2020.[20] This report identified the following suitable jobs for the plaintiff:
[20]DCB 73-117
· Jewellery sales assistant;
· Pharmacy sales assistant; and
· Pathology collector.
128 The evidence is that in 2016, the plaintiff undertook a real estate course. In cross-examination, the plaintiff said that she did this course so that she could obtain a Newstart allowance from Centrelink.[21]
[21]Transcript (“T”) 18, Line (“L”) 2-3
129 The current medical evidence expressed by Dr Barton is that the plaintiff could return to pre-injury hours and pre-injury duties. He said she could perform the duties of a real estate agent. Further, he believed the plaintiff could return to suitable employment.
130 Mr Simm did not believe the plaintiff has any work-related physical condition which would incapacitate her from pre-injury employment. He said she has a propensity to activity-related pain from degenerative cervical pathology. A return to physically demanding work would probably be associated with an exacerbation of her symptoms. He said she was best suited to lighter work.
131 Mr Simm said the plaintiff could work as a real estate agent on a full-time basis. She is capable of suitable employment which would be confined to work involving handling light weights close to her body, and below shoulder height. He noted that the plaintiff reported to him struggling to lift more than one kilogram, and if she has a shopping bag with a 2-litre container of milk, she must “drag it”. Mr Simm said this was not compatible with the surveillance he viewed, when she was filmed handling and carrying shopping items without evidence of restriction.
132 Mr Simm did not impose formal restrictions on the plaintiff’s employment. He noted that she had very little formal treatment for pain over the years.
133 Mr Simm said the plaintiff could work full time in the occupations of jewellery sales assistant, pharmacy sales assistant, pathology collector and display home consultant (new homes), jobs identified in the CoWork vocational assessment report dated 18 May 2020.
134 Dr Rowe said the plaintiff has some capacity for employment in a sedentary environment which does not require overhead or repetitive use of her arms. He accepted working in real estate was a good option for the plaintiff.
135 Mr Vo said the plaintiff has a realistic capacity for work avoiding any physical type of activities using her upper limbs or overhead work.
136 Professor Teddy said the plaintiff had a capacity for work of a sedentary nature.
137 I note that Dr Rowe, Mr Vo and Professor Teddy expressed their opinions based on the plaintiff presenting to them with significant pain and disability.
138 Mr Paul Hartley, a vocational assessor, accepted that the plaintiff had a physical capacity for employment, but said the plaintiff was unemployable on the basis of what he described as her “rather bizarre and difficult presentation throughout the assessment”.[22]
[22]PCB 75
139 Dr Rowe and Dr Barton, both occupational physicians, did not form that view. Neither did any of the other medical witnesses.
140 Further, Ms Raftopoulos, vocational assessor, identified the positions of jewellery sales assistant, pharmacy sales assistant and display home consultant (new homes) as suitable for the plaintiff.
141 While the plaintiff was at times difficult to understand, I balance that with her ability to run her own case, understand instructions, and being present on each hearing date, noting that the proceeding was adjourned. I also take into account her presentation in Court.
142 The plaintiff’s evidence, in cross-examination, was that she had the physical capacity to work in jewellery sales or in a pharmacy as a sales assistant. The plaintiff’s evidence was that she has applied for one job in a jewellery store in Frankston and has made enquiries with a pharmacy in either Clayton or Southland, although they did not have any advertised positions.
143 The plaintiff said she went to Myers to look into beauty sales but said that “it is very hard to get into”.[23] There was no evidence to suggest she made an application for such a job.
[23]T49, L30-31
144 The plaintiff’s evidence was that for her to obtain the Newstart allowance she is required to apply for twelve jobs. There was no evidence as to what jobs the plaintiff applied for through Newstart. There was no evidence to suggest that the plaintiff had received any interviews for employment.
145 Based on the medical evidence, the plaintiff’s presentation and her evidence in Court, I accept that that the plaintiff has a capacity for working in the roles identified by Ms Raftopoulos on a part-time basis. These roles are relatively sedentary and within the skills of the plaintiff.
146 Accepting the plaintiff worked on average twenty-one hours per week at the time she suffered her injury, and obtained work, working twenty-one hours per week as a jewellery sales assistant, her hourly gross average earnings would be $24.47, earning $513.87 per week. If the plaintiff obtained employment as a pharmacy sales assistant, her hourly gross average earnings would be $21.66, earning $454.86 per week.
147 I accept that all the jobs identified by Ms Raftopoulos would result in the plaintiff not suffering a loss of earning capacity of 40 per cent or more.
148 Accordingly, I accept that even if the plaintiff had satisfied the Court that she suffers from a work-related injury, the plaintiff would not satisfy the statutory test for economic loss.
149 I shall now consider whether the plaintiff has suffered pain and suffering consequences if she had satisfied the Court that she suffers from a work-related injury.
Pain and suffering consequences
150 The plaintiff’s evidence was that she suffers constant pain, has lost the full and free use of her upper limbs, finds it difficult to stand and sit for long periods of time, or bend over because of the pain in her spine.[24]
[24]PCB 17, paragraph 45
151 The surveillance footage of October 2019 showed the plaintiff freely using her arms, bending and reaching without restriction. When shown the surveillance of 16 October 2019, she was asked about that day. The plaintiff’s evidence was that:[25]
“Um, I drop in to go there to just have a coffee and just put a Keno because, just put a Keno and then to see people and just go there because from home I go out to see, you know, I don’t know the time, 2019. I was not in pain that time. No more pain 2019. Last year.”[26]
(sic)
[25]T37, L8-13
[26]T37, L8-13
152 The plaintiff reported pain to several of the current medical witnesses. She reported to Professor Teddy and Dr Barton suffering pain near 10 on a zero to 10 scale of severity. She reported pain to Dr Rowe in her shoulders that radiates to both upper arms and into her hands. The plaintiff described constant pain to Mr Simm which can vary from low grade to more severe pain. The focus of the pain was over the left scapula. She reported to Mr Vo that her symptoms have improved. In cross-examination, she said that when she is not working, she does not have pain in her shoulders.[27]
[27]T26, L10-18
153 I accept that the plaintiff gave inconsistent evidence as to her levels of pain. I therefore consider the treatment the plaintiff requires will be of significance.
154 The plaintiff reported her treatment and medication to the medical witnesses. She reported to Mr Simm that she is prescribed Ibuprofen, an anti-inflammatory medication, for her musculoskeletal pain. She does some stretching exercises and has had five physiotherapy treatments to her shoulder girdle region. Mr Simm described the plaintiff’s treatment as “minimal”.
155 Dr Barton recorded the plaintiff as being prescribed Mobic and Fenac, taken on alternate days.
156 Dr Rowe recorded the plaintiff taking anti-inflammatory medication.
157 Mr Vo recorded that the plaintiff was taking anti-inflammatory medication but currently is not taking medication.
158 I accept that the level of pain the plaintiff suffers is at the low end of the range, which is consistent with the low levels of medication she takes. I accept the plaintiff’s treatment is minimal, as described by Mr Simm.
159 In paragraph 31 of her affidavit, the plaintiff deposed that the movement of her neck is restricted. She said she finds it painful to turn her head from left to right and lift her head up and down. Holding her head in a flexed position causes increased pain in her neck.
160 In cross-examination in relation to the surveillance footage from October 2019, the plaintiff said she can move her neck because she is not working.[28] The plaintiff gave inconsistent evidence on this topic. Accordingly, I accept this consequence is at the low end of the range.
[28]T38, L1-10
161 The plaintiff reported her sleep has been affected. She deposed in her affidavit that she finds it difficult to get comfortable at night and sleeps on her stomach. She said she often wakes in an uncomfortable position with pain in her shoulder. She suffers disturbed sleep and wakes unrefreshed in the morning. She reported sleep disturbance to several of the medical witnesses.
162 Mr Simm reported that she may become uncomfortable lying on her side in bed at night. If so, she rolls onto her back.
163 The plaintiff reported poor sleep to Mr Rowe and difficulty sleeping to Professor Teddy.
164 I accept that the plaintiff complains that her sleep has been affected and is a consequence of her injury. There is no evidence of the regularity of this consequence. There is no evidence that she requires medication to assist in her sleep. I accept it is a consequence which I can take into account, which I would assess at the low end of the range.
165 In her affidavit, the plaintiff said that prior to her injury, she enjoyed tennis, swimming, gym and bowling. The plaintiff said she did these activities with her sister on a recreational basis at the weekend.[29] She rarely plays these sports now because of the pain.
[29]PCB 15, paragraph 32
166 In cross-examination, the plaintiff conceded that for many years prior to her injury, she did not play tennis, go bowling or engage in swimming. She said she no longer attends the gym due to dizziness which has not been related to her spine/shoulder injury. I do not take into account these activities as consequences of her injury as the plaintiff ceased these activities for reasons unrelated to her spine/shoulder injury.
167 The plaintiff said she started attending the spa in the swimming centre after her injury and continues to do so. She said that the heat from the spa is beneficial for her injury. I accept this is a consequence I can take into account which I assess at the low end of the range.
168 In her affidavit, the plaintiff deposed that prior to her injury, she enjoyed gardening. She said her son now does most of the gardening. In cross-examination, the plaintiff conceded that she did not garden prior to the injury.[30] Accordingly, gardening is not a consequence I can take into account.
[30]T49, L8-10
169 The plaintiff’s evidence was that she is restricted in her ability to do her housework. She finds it difficult to vacuum and to do the washing. She paces herself and does not lift heavy baskets of washing. In 2015, she reported to Mr Brearley difficulties with heavier aspects of her housework – vacuuming, sweeping and mopping. She reported to Professor Teddy that she does her own housework slowly and sometimes becomes tired. Occasionally, she lies down after cooking and cleaning.
170 In her affidavit, the plaintiff deposed she enjoyed cooking and she now cooks simple meals. She has difficulty lifting pots and pans and stirring food on the stove. I accept that some of the heavier aspects of the plaintiff’s housework might affect her neck and shoulders. Accordingly, I accept this is a consequence at the low end of the range.
171 The plaintiff’s evidence was that she reported to some of the medical witnesses difficulties with daily living. She told Dr Rowe that she takes care of herself at home with considerable difficulty. She reported to Mr Vo that she finds difficulty with dressing.
172 In Court, she said she could do her hair, which is long and is worn in a bun on top of her head. The only difficulty she reported to the Court was pulling up a zip in the back of her dress. The surveillance always disclosed the plaintiff to be well dressed and walking in high-heeled shoes. Accordingly, I accept any consequences of dressing were at the low end of the range.
173 I am not satisfied that it is fair to describe the plaintiff’s pain and suffering consequences as being “more than significant or marked”, and properly described as being “at least very considerable” when judged by comparison with other cases in the range.
174 Accordingly, I accept that even if the plaintiff had satisfied the Court that she suffers from a work-related injury, the plaintiff would not satisfy the test for pain and suffering.
Conclusion
175 The plaintiff was self-represented at the hearing of this application. She understood the process and was able to conduct her proceeding herself. She had some language difficulty and spoke very quickly. There were issues in relation to the plaintiff’s credit. I took the view that the plaintiff was unreliable and gave inconsistent evidence. The medical evidence, opinions of the medical witnesses and significant surveillance shown in Court were indicative of the inconsistencies of the plaintiff’s evidence.
176 I am required to assess the plaintiff as at the date of the hearing. At the time of the application being heard, the plaintiff had ceased employment for five-and-a-half years. The plaintiff had not actively sought alternate employment and any retraining, namely the real estate course was completed to enable the plaintiff to obtain a Newstart allowance. The plaintiff has had limited treatment and the majority of the medical evidence is that any work-related injury has resolved since the plaintiff ceased work.
177 Based on the evidence as a whole, I am not satisfied that the plaintiff has established, on the balance of probabilities, that she has sustained an injury which arose out of or in the course of her employment with the defendant with its resulting impairment being permanent and likely to continue into the foreseeable future.
178 Further, I accept that the plaintiff has a capacity to return to work and would not meet the economic loss test, and the consequences of any impairment to the plaintiff cannot reasonably be described as being “serious”.
179 Accordingly, I dismiss the plaintiff’s application for a serious injury certificate.
180 I will hear the parties on costs.
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