Scrofani v VWA
[2023] VCC 2307
•15 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00469
| CAROLYNE AMANDA SCROFANI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2023 | |
DATE OF JUDGMENT: | 15 December 2023 | |
CASE MAY BE CITED AS: | Scrofani v VWA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2307 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of ‘serious injury’ – issue of credit of witness – whether can aggregate injuries to shoulders to establish a “serious injury” – permeant impairment – whether condition of shoulders is now an injury arising out of or in the course of employment.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325.
Cases Cited:Sabo v George Weston Foods [2009] VSCA 242; TAC v Dennis [1998] 1 VR 702; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Lexa v Transport Accident Commission [2019] VSCA 123; Tavendale v The Age Co Ltd [2009] VCC 642; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622.
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | LHD Lawyers |
| For the Defendant | Ms J Frederico | IDP Lawyers |
HIS HONOUR:
Introduction
1Carolyne Scrofani seeks leave to commence a proceeding to recover damages for her pain and suffering relating to physical injuries she suffered arising out of or in the course of her employment with Wyndham Destinations Asia Pacific Pty Ltd (Wyndham Destinations). She relies on paragraph (a) of the definition of “serious injury” in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
2Her application is opposed and, helpfully, the respondent’s counsel identified these matters in dispute:
(a) an aspect of Ms Scrofani’s credit, being her reliability as a witness;
(b) whether she can aggregate the injuries to her shoulders to establish a “serious injury”;
(c) whether her impairment is permanent;
(d) whether the condition of her shoulders is now an injury arising out of or in the course of her employment;
(e) whether she has a “serious injury” at all.
Circumstances
3Ms Scrofani is now 54. She left school at the end of Year 10 and completed a business course. She worked for an advertising agency and then as an account co-ordinator with another advertising agency. After the birth of her first child, at 29, she completed Certificates III and IV in Fitness. She then worked as a gym instructor for a “couple” of years, and then in after-care at her daughter’s school and in catering. She is right-handed.
4In what is described as the “late 2000s”, Ms Scrofani separated from her partner and moved to Phillip Island. She obtained cleaning jobs including one at the Koala Park Phillip Island Apartments. This lasted about 15 months.
5In about September 2017, she started working for Wyndham Destinations at the Ramada Resort as a full-time cleaner. Since her injuries are alleged to arise out of or in the course of her employment, she described the nature of her work in considerable detail:
“The work at Ramada was intense. From memory there were over 250 Villas to clean. When I first started work at Ramada there were about 30 cleaners but in the time I was there the number seemed to drop significantly. This meant I had to clean more Villas in the time available. In order to get around to the Villas with cleaning equipment I had to drive large Fiat manual van with manual transmission. A lot of the other cleaners couldn’t drive manual, so I was often the designated driver in the team. This meant I had to regularly drive around to clean the Villas.
In the mornings we were put in teams and allocated the jobs for the day. For example, if I was allocated beds then I would be doing beds all day. There was no rotation of tasks throughout the day. On a busy day I would estimate I would strip and make about 60 king size beds. We were instructed not to do the beds in pairs. Usually, two people were allocated to bed-making and many Villas had two king size beds and two single beds. Typically, one of us would often do the kings and one would do the singles but often we would do both.
One of the most physically demanding jobs was pulling the huge king size beds (two singles tied together) out and away from the walls in order to strip the bed and make it with fresh linen. This required the use of both shoulders to grip and forcefully pull the bed out from the wall on each occasion using a ripping or pulling motion. It seemed to me that the beds probably weighed more than I did and I found this task particularly strenuous.
In addition, I had to carry linen from the van in bundles in my arms. There were 3 starched king sheets per bed. That meant I would often be required to carry 12 starched sheets plus pillowcases and towels in heavy bundles for each Villa. I was also required to strip the beds and place the dirty linen and wet towels into large linen bags which I had to physically carry back and load into the van. Again, as one of the designated drivers I would be doing this most days. This was heavy work.
The vans were fitted with sliding doors which were heavy to open and close many times day, especially when I had to park on sloping or uneven ground near a Villa. I complained about the doors to the supervisor, Kylie. To my knowledge nothing was done.
The work was fast paced and repetitive and we were under time pressure due to the number of bookings and a lack of staff which I think was result of casual workers regularly not turning up for shifts. On some days we had 80 or more arrivals which meant we had to have all such beds made by check in. In addition, there were VIP rooms which I had to attend for specific requests.
In addition to stripping and making beds I was required to vacuum and mop the Villas as well. One of the reasons I did cleaning work was to stay fit and active. The work at Ramada was a lot harder than I had previously experienced due to the larger number of rooms and Villas and the number of staff. The rooms were often in a bad state especially after guests had held small parties or family gatherings. I was always under time pressure to complete the allocated cleaning tasks. There seemed to be 5 or 6 casual workers who didn’t turn up each day. I found I was often called in on my rostered days off.”[1]
[1] Affidavit affirmed on 16 September 2022, Plaintiff’s Court Book (“PCB”) 33-34 at [6] to [12].
6Ms Scrofani identifies a particular event in about early October 2018, when she felt pain in her right shoulder while pulling out heavy king-sized beds. This pain was worsened by some of her other duties – making beds; carrying heavy bags of linen; and opening the heavy door of the van. As the soreness of her shoulder increased, she sought relief through what she calls “massage therapy”. She complained to her supervisor but to no avail. Someone suggested she favour her left arm, which she did. Favouring that arm meant she used it excessively. In about late October 2018, that shoulder became painful. During the period of favouring her left arm, Ms Scrofani paid for remedial massage which including cupping and dry needling.
7In early November 2018, she saw a general practitioner who certified a level of incapacity which resulted in Ms Scrofani being given light duties. Although the duties were lighter than her normal duties, they were still strenuous and fast paced. Her shoulders remained sore. After a while she could no longer cope and resigned. Again, she sought massage for relief and thought her shoulders would get better with rest. She paid for this treatment herself.
Narooma
8In May 2019, Ms Scrofani went to live in Narooma in New South Wales. Despite the rest from work, her shoulders still hurt. She was taking Voltaren and “over-the-counter pain killers”.
9Before she was injured, Ms Scrofani had done kayaking. She tried it again but stopped after a “couple” of minutes due to the pain.
10In August 2020, at the request of her general practitioner, her shoulders were examined by ultrasound.[2] In about October 2020, her left shoulder was injected with cortisone, steroid or corticosteroid. The injection was guided by an ultrasound. Despite the supposed precision of the injection, it gave her pain relief for one to two weeks only.
[2] PCB 56-57.
11Ms Scrofani underwent physiotherapy in Narooma.[3] In her first affidavit, she said it aggravated her shoulder pain. Her experience of physiotherapy while in Narooma was unsatisfactory:
“I received dry needling, and I got pins and needles from my elbow down to my hand that didn’t go away. So my doctor actually told me to stop physio.”[4]
[3] Dr Bloom notes a report from a clinic which offers physiotherapy services.
[4] Transcript (“T”) 29, Lines (“L”) 3-6.
12During cross-examination, she described the pins and needles as “very bad” and physiotherapy “sort of scares me”. This experience is why she has not undertaken physiotherapy since. As to the future, she is uncertain whether she would return to physiotherapy. She might try other therapies.
13The clinical records of an incorporated medical practice called “Braveheart Healthcare” has her attending between 6 August 2019 and 14 January 2020. She took Oxycodone, Palexia and Voltaren. She tried Panadeine Forte but found it did not relieve her pain. There is an entry in the records of the Moruya District Hospital for an attendance on 22 December 2019. The attendance concerned chest pains. The recorded history includes – “She has left rotator cuff tear from a kayaking injury last year”. This is incorrect.
14She was referred to an orthopaedic surgeon, David Cosetto, whom she saw in March 2021. He considered she had a good range of motion with painful abduction and positive impingement sign.[5] He wanted MRI scans. Due to her fear of confined spaces, she could not undertake the procedure. He recommended she continue strengthening exercises using TheraBands.
[5] See the report of Michael Bloom dated 29 May 2023 at p8.
Western Australia
15During 2021, Ms Scrofani and her partner moved to northern Western Australia. Her shoulders remained painful and she saw a general practitioner in Karratha. In October 2021, there were further ultrasound examinations of her shoulders.[6] Although referred to an orthopaedic surgeon, she did not attend that person because bulk billing was unavailable. She tried to return to work cleaning at the Karratha Arts Centre but found she could not cope with the work.
[6] PCB 58-59.
16Apart from that, Ms Scrofani said she had not worked since leaving Ramada:
“We have travelled around the country since Co Vid-19 and whilst moving around hasn't been a problem, finding work when we have settled at places hasn't been easy because I am restricted with what work I can do, especially with my arms and it would be impossible for me to perform the work that I was doing for the Defendant.”[7]
[7] Affidavit sworn 22 August 2023, PCB 14 at [16].
17The defendant produced images and video from her partner’s business Facebook page. They show her painting and removing a sign with a scrapper. She was not paid for this work, which I consider would not be seen as constituting “work” as that word is usually understood.
Noosa
18Ms Scrofani moved from Western Australia and stayed at various places in her caravan. Between about February and August 2023, she lived in Noosa. She underwent myotherapy and a process called “dry needling”. The myotherapy assisted, making her shoulders feel freer. However, neither gave more than temporary relief. She tried Pilates for her shoulders. She sought warmer climates as cold winters aggravated her shoulder pain.
Rye
19In August 2023, she left Noosa and returned to live in a house in Rye because her daughter is having a baby. She intends to stay in Rye. Since she is now better placed, she intends to seek treatment including physiotherapy. She would consider an injection in her right shoulder, having had one in her left.
20The overall picture is one of occasional treatment for her shoulders since October 2018. There are two sets of ultrasounds. She saw one orthopaedic surgeon, probably once, and did not see another. The first wanted MRI scans but they were not taken. From an imaging perspective, there is the evidence of the ultrasounds only.
21There was physiotherapy, which she found unhelpful. There was myotherapy and dry needling. Due to her moving from place to place, there is no continuity of treatment. As best I can see, Dr Swan is the first practitioner to recommend a detailed treatment programme.
Consequences
Pain
22In her affidavit sworn in September 2022, Ms Scrofani described the daily experience of a dull ache in her left shoulder, and an ache in her right shoulder most days.
23Elsewhere, she describes the aching as pain when she uses her arms to do things over the height of her head. These activities increase the level of her pain, which she now avoids.
Daily living
24Having washed her hair, she no longer dries it, leaving it to dry naturally. She wants to straighten her hair, but using a straightener is too painful as it involves raising her right arm for prolonged periods.
25Something as simple as doing up her bra is painful. She now wears sports bras, which are “not ideal for everyday use”, or fixes the clasp of a bra at her front and then shifts it to the back.
26While she lived in a caravan, maintaining it was not difficult despite her shoulders. Her partner did the heavier tasks including driving the vehicle towing the caravan. Recently, she has returned to live in a house in Rye because her daughter is having a baby. She intends to stay in Rye.
27Within the house, she does not mop. She vacuums “a little bit”. She avoids forceful activities involving her shoulders as they increase the level of her pain.
28Her ability to drive is restricted. She can drive up to four hours in a day with two or three breaks. In effect, she can drive continuously for about an hour.
29She can shop and carry her purchases.
30When walking her dog, she uses a “Halti”. This device stops the dog from pulling the lead and causing her pain.
Sleep
31Whenever she rolls over onto either shoulder while asleep, she wakes due to the pain. This happens frequently and leaves her tired the next day.
Treatment including medicines
32I will discuss Dr Bloom’s reports later. He was given the clinical notes of various practices and clinics and reports of a general practitioner and orthopaedic surgeon. Judging from Dr Bloom’s summary of those documents, Ms Scrofani sought treatment in Victoria, New South Wales and Western Australia. However, her treatment was sporadic with no long-lasting treatment from anyone. The only consistent theme is medicine.
33Nowadays, she does not take prescribed medicines. Most days she takes four Panadol Osteo and four Voltaren tablets. She took Palexia for its sedative effect but stopped because it left her drowsy. In the past, she has taken other medicines to relieve her pain. Whenever there is a need she uses heat packs.
34I have already referred to her experience of physiotherapy and the onset of pins and needles. I will refer later to Dr Bloom’s reports. In his first report, he attributes these symptoms to myotherapy.[8] This is a mistake because she says “physiotherapy” in her evidence, and she is presently undertaking myotherapy.
[8] Report dated 29 May 2023 at p5.
35Ms Scrofani has undertaken the procedure called “dry needling”. It is unclear whether this procedure was performed by a physiotherapist or a myotherapist.
36In recent times, Ms Scrofani has undertaken self-directed hydrotherapy and Pilates.
Sports
37Before 2018, Ms Scrofani skied for most of her life. This activity is lost to her because of the state of her shoulders. She does not believe she can return to skiing because of the expected pain.
38Ms Scrofani started kayaking in about October 2017. She bought two kayaks. Having attempted, she realises she cannot now kayak and has sold her kayaks. This realisation has upset her.
39Before the accident, Ms Scrofani did a form of craftwork called “dream catchers”. Although the evidence lacks precision, it is something made of feathers and hung on the wall. She stopped making them because it was “too fastidious” using her arms. She did not explain except that it was painful. Nevertheless, she would like to return to making them but did not explain what needed to change for her to do so.
Employment
40Ms Scrofani worked as a cleaner for many years. Although wanting to work, these injuries prevent her from doing so except in the manner depicted in the images and video. Whether other forms of work are denied is uncertain on the material. She did work in offices as an accounts co-ordinator, more than 25 years ago.
41Her incapacity for work troubles her:
“I am not capable of working full time on an unrestricted basis and this is a massive loss to me. I would rather be working and contributing to the household income. I believe that I could probably do some part time light work, I just don't know what I would be capable of doing.”[9]
[9] Affidavit sworn 22 August 2023, PCB 14 at [17].
Medical evidence
Low
42Sean Low is an occupational physician. He examined Ms Scrofani on 7 July 2023 at the request of her solicitors.[10] He examined her audio-visually with Ms Scrofani in her caravan.
[10] Report dated 7 July 2023.
43His examination showed forward flexion of her shoulders was limited to about 160 degrees while extension was normal. Abduction was limited to 160 degrees and external and internal rotation were normal.
44Dr Low had the reports of the ultrasound examinations of the shoulders on 13 August 2020 and 6 October 2021. He diagnosed her as suffering from bilateral supraspinatus tendon tears with ongoing subacromial bursitis. Whether he saw the tears and bursitis as the product of a simple injury, and not an extended injury (for example, an aggravation of a pre-existing injury), is unclear. In response to a question posed by Ms Scrofani’s solicitor, he said:
“She developed a significant change in clinical status over a short period affecting both shoulders. She had previously been asymptomatic with no relevant pre-existing condition identified.”[11]
[11] PCB 44 at [4].
45Apparently, Dr Low did not take a history of Ms Scrofani favouring the left arm and the subsequent development of symptoms in the left shoulder. He said:
“Ms Scrofani noted that within the span of a few weeks she then developed similar left-sided symptoms.”[12]
[12] PCB 41.
46As to permanency, Dr Low was asked: whether our client’s employment with Ramada Resort continues to be a significant contributing factor to any ongoing injury as diagnosed by you. He answered:
“Yes. There is no evidence to suggest she made a recovery from the initial injury sustained. There has been no evidence of any intervening injury to break the chain of causation. As such her ongoing symptoms and disability remain related to her work injury.”
47As to causation, Dr Low considered Ms Scrofani’s employment with Ramada Resorts was a significant contributing factor to her ongoing bilateral shoulder conditions. She was exposed to relevant physical forces through her repetitive physical tasks resulting in the development of her condition.
48His prognosis was guarded due to the existence of symptoms after “the significant passage of time” and a trial of non-surgical treatment. He recommended orthopaedic assessment. If there was no surgery, he expected her symptoms and disability to continue into the foreseeable future. Implicitly, in light of the opinions of Dr Swan and Dr Bloom, Dr Low did not consider further non-surgical treatment warranted, noting her symptoms were ongoing after a significant passage of time and the trial of non-surgical treatment.
49He considered her unfit to work as a cleaner for the foreseeable future. She would be restricted to sedentary work because of the following limitations: not to lift more than 5 kilograms for both arms; avoid overhead manoeuvres; and avoid any repetitive upper limb tasks.
50Dr Low read the Recovre report, dated 30 June 2023.[13] He considered she could perform the work of receptionist, information officer and contact or call centre operator. He rejected the jobs of kitchenhand or domestic cleaner.
[13] Report dated 12 July 2023.
Swan
51John Swan is an orthopaedic surgeon. He examined Ms Scrofani at the request of her solicitors on 19 July 2023.[14]
[14] Report dated 19 July 2023.
52Dr Swan did take a history of Ms Scrofani favouring the left arm after the right shoulder became painful or, as he put it, “began using her left upper limb more dominantly”.
53Unlike Dr Low, Dr Swan examined Ms Scrofani face-to-face. He used a goniometer to measure her movements. A screening examination of the cervical spine revealed nothing abnormal.
54As one would expect, his measurements of the range of motion of the shoulders are precise. The measurements for the shoulders are largely similar despite the rotator cuff tear in the left shoulder. There were significant losses for each of the movements of the shoulders. For example, flexion for both shoulders was 140 degrees where normal flexion is 180 degrees, which affects the arc between 140 and 180 degrees. For her, this effectively removes activities well above shoulder height – hanging washing on the line; removing items from upper shelves; and upper-level cleaning, The inhibiting factor is the pain caused by these activities.
55His clinical view was Ms Scrofani had painful and stiff shoulders with a significant degree of inflammation in each shoulder joint. He diagnosed Ms Scrofani as suffering from:
(a) rotator cuff tendinosis for both shoulders;
(b) mild adhesive capsulitis for both shoulders;
(c) a left shoulder supraspinatus tear; and
(d) chronic pain.
56In relation to causation, Ms Scrofani’s solicitors asked whether her employment with Ramada Resorts was a significant contributing factor to any one or more of her claimed injuries. He replied:
“… her employment … was a significant contributing factor to her bilateral shoulder conditions … she has experience[d] an aggravation of pre-existing rotator cuff tendinopathy and degenerative changes, which are age-related and employment-related, over an extended period of time. It is plausible that her employment duties aggravated her rotator cuff tendinopathy which resulted in bilateral shoulder joint inflammation and adhesive capsulitis.”[15]
[15] PCB 53, at [4].
57The next question asked by the solicitor was number 5: Whether our client’s employment with Ramada Resort continues to be a significant contributing factor to any ongoing injury as diagnosed by you”. To which he replied: “Ms Scrofani is currently unemployed and she no longer works for Ramada Resort”. Whether Dr Swan misunderstood the question or its true import of the question, his answer provides no support to a causal link between Ms Scrofani’s injuries and her employment with Ramada Resort.
58Although Dr Swan was provided with Dr Bloom’s first report, he does not directly comment upon Dr Bloom’s view of the effects of an exacerbation disappearing or the effect of favouring the left arm on the appearance of symptoms in the left shoulder.
59Under the heading “PROGNOSIS”, there are two paragraphs, which are important for this application:
“It is my opinion that she has bilateral painful, stiff shoulders, with clinical evidence of a significant degree of inflammation within each shoulder joint. Overall, the prognosis is guarded, as it is now developed chronic pain and so her prognosis into the long term is likely that of ongoing shoulder pain. She has bilateral rotator cuff tendinopathy that is likely age-related and degenerative in nature, and has progressed to a full thickness tear of the left supraspinatus. The natural history of this is slow and steady progression of the rotator cuff tear and there is a chance of developing significant rotator cuff arthropathy over the following one or two decades.”[16]
“However, I would recommend further suitable and appropriate treatment for the symptoms of both shoulders, which would include bilateral corticosteroid injections into both glenohumeral joints and a six-month physiotherapy protocol for passive assisted range of motion. I recommend she undergoes the Jean-Pierre Liotard technique of passive assisted range of motion physiotherapy. It is my experience that she would show significant improvements in her range of motion and her symptoms with persistent treatment over an extended period of time. I also recommend she undergoes assessment with a treating chronic pain specialist for the optimisation of her analgesia.”[17]
[16]PCB 52.
[17]Ibid.
60Dr Swan said her prognosis is guarded. She has developed chronic pain with the likelihood of continued pain in the long term. Describing her rotator cuff condition broadly as tendinopathy, he predicted of this condition a “slow and steady progression of the rotator cuff tear and a chance of developing significant rotator cuff arthropathy over the next one or two decades”. He does not describe the nature of the arthropathy.
61Under the heading of “FUTURE MANAGEMENT”, Dr Swan did not recommend surgery at this time but recommended further imaging to determine the size of the tear. He did recommend other treatment including:
(a) corticosteroid injections into both glenohumeral joints. These injections would likely reduce the inflammation;
(b) a 6-12 months’ course of the Jean-Pierre Liotard technique of passive assisted range of motion physiotherapy, commenting:
“It is my experience that she would show significant improvements in her range of motion and her symptoms with persistent treatment over an extended period of time.”[18]
(c) assessment by a treating orthopaedic shoulder surgeon which, according to Dr Swan, should include a CT arthrogram to assess the tear and condition generally;
(d) examination by a treating chronic pain specialist for the optimisation of her analgesia.
[18] Ibid.
62During her oral evidence, Ms Scrofani commented since she was now more settled, she intends to seek treatment including physiotherapy. To the type of treatment Dr Swan recommended, she said she had had physiotherapy before and it had not done a lot for her. Later, she expressed uncertainty about returning to physiotherapy because she had experienced very bad pins and needles in her arms and she stopped seeing the physiotherapist. The exact nature of the physiotherapy recommended by Dr Swan was not explained to her, only a broad description. She was not in favour of surgery.
63Dr Swan considered her unsuitable for her pre-injury duties but suitable for office and other sedentary work. He recommended against her performing any physical activities in future employment.
Bloom
64Michael Bloom is an occupational and environmental physician. He interviewed Ms Scrofani on 29 May 2023 at the request of the defendant’s solicitors.[19] Like Dr Low, he examined her audio-visually.
[19] Report dated 29 May 2023.
65Dr Bloom found Ms Scrofani very co-operative. Despite the significant limitations of an audio-visual examination, nevertheless he estimated the range of her shoulder movements. They were somewhat greater than those found by Dr Swan. He concluded there was a reasonably good active range of movement of both shoulders. He did not find evidence of a frozen shoulder. He gained the impression of mild symmetrical dysfunction of both rotator cuffs.
66As to her injuries, she told Dr Bloom of the spontaneous and gradual onset of right shoulder aching pain from very early October 2018. She attributed the onset to opening the sliding door of a van with her right hand. She continued to work but the pain worsened. Acting on advice, she used her left arm more. She sought treatment for her right shoulder.
67She then spoke of the spontaneous and gradual development of the same symptoms in her left shoulder. This was in late October 2018. Those symptoms rapidly became more severe than those of the right shoulder.
68To Dr Bloom, the reports of ultrasound examination of both shoulders on 13 August 2020 describe degenerative changes in the rotator cuffs.
69Diagnostically, Dr Bloom again acknowledged the limitations of an audio-visual examination in this case. Using the word “impression” rather than something more definite, there was mild rotator cuff dysfunction, secondary to degenerative rotator cuff disease. Similarly, he gained the impression of a mild dysfunction of the cervical spine, likely secondary to degenerative cervical spondylosis.
70To me, the phrase “rotator duff dysfunction” is imprecise. Dr Bloom mentions other matters in this passage:
“…there is very strong evidence that age is a significant risk factor for rotator cuff impingement, tendinopathy and tears.”[20]
[20] Defendant’s Court Book (“DCB”) 24, at [4].
71The tears were revealed in the ultrasounds. Here, they are an injury to a particular tendon. Tendinopathy is an overarching term while impingement is more precise. Frankly, I am unable to say what precisely Dr Bloom is diagnosing.
72As to causation, Dr Bloom distinguished between “exacerbation” and “aggravation”. To him, both words represented the worsening of a condition with the former being temporary and later, permanent. He maintained Ms Scrofani’s pre-existing degenerative disorder of the rotator cuffs was likely to have been exacerbated by the stresses and strains of her work at Ramada Resort. However:
“… it is less certain whether she sustained an aggravating injury. In other words, it is possible, although by no means certain, that Ms Scrofani would be experiencing similar symptoms even had she not worked at Wyndham Destinations for 15 months between October 2017 and the end of 2019.”[21]
[21] DCB 24, at [3].
73Although Dr Bloom apparently rejects Ms Scrofani’s attribution of using her left arm excessively brought on the pain in her left shoulder, he does in terms which are as uncertain as his assessment of an aggravating injury:
“… The evidence is that this is not the case, and that rather, the underlying condition is bilateral and therefore tends eventually to be bilaterally symptomatic.
Thus I think it most likely that her bilateral condition evolved to become symptomatic in the course of her work, and not necessarily because of any particular discrete traumatic injury at work …”[22]
[22] DCB 27, at [12](b).
74I would interpret those passages as not denying Ms Scrofani’s view of what happened, but rather saying her left shoulder would have become symptomatic in time in the course of her employment.
75As to treatment, Dr Bloom believed Ms Scrofani could minimise her ongoing pain and dysfunction by enthusiastically engaging in an intense and ongoing strengthening exercise programme. He rejected further passive modalities of treatment as inappropriate for two reasons, including their unlikelihood of increasing her function. Possibly, as part of the strengthening exercise programme, he recommended exercises aimed at stabilising the rotator cuff mechanism by strengthening the rotator cuff muscles. Finally, he thought she might benefit from a multi-disciplinary functional restoration/reactivation programme, including appropriate psychological counselling and support into appropriate paid work.
76In a supplementary report,[23] Dr Bloom considered Ms Scrofani was capable of performing suitable work subject to restrictions: avoid all work above chest height; avoid repetitive reaching and elevation of the upper limbs; limit manual handling loads to no more than 7 kilograms; all manual loading between mid-thigh and chest height with both elbows close to her sides; and avoiding ladders and working at heights.
[23] Report dated 27 July 2023.
77Ms Scrofani was capable of performing a range of suitable sedentary, semi-sedentary or light duties. He read the Recovre report dated 30 June 2023, and considered her suitable for: the receptionist’s position at Carrum Downs; the administration officer/receptionist’s position at Seaford; the information officer/concierge’s position at Dandenong Plaza; and food court cleaner’s position at Dandenong Plaza. He deferred a conclusion on a food services assistant’s position at Clayton and Berwick until he viewed the job in the presence of Ms Scrofani.
Legal considerations
78Turning to paragraph (a) of the definition of “serious injury”, the word “serious” is explained in two further paragraphs of s325(2). First, relevantly, it is satisfied by reference to the consequences to Ms Scrofani of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function fairly described as being more than significant or marked and being at least very considerable.
79The adverb “very” qualifies the noun “considerable”. The following passage from the joint judgment in Sabo v George Weston Foods is important:
“In considering whether Mr Sabo’s impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable’.”[24]
[24] [2009] VSCA 242 at [73].
80An earlier paragraph in the joint judgment dealt with Mr Sabo’s return to work:
“The fact that Mr Sabo is able to return to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act’s objects is to provide ‘for the effective occupational rehabilitation of injured workers and their early return to work …”[25]
[25] Ibid, at [71].
81Under the heading of “The disabling effect of pain”, Maxwell P summarised the authorities on this point in Haden Engineering Pty Ltd v McKinnon:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her].”[26]
[26] (2010) 31 VR 1 at [15].
82Ms Scrofani injured her shoulders. Plainly, these injuries arose out of or in the course of her employment with Ramada Resort. In Lexa v Transport Accident Commission,[27] the Court concluded injuries to both shoulders do not give rise to the loss or impairment of a single body function.[28] This was so even though the injuries were caused by the same car accident.
[27][2019] VSCA 123.
[28] Ibid at [51].
83In Lexa’s case, the Court referred to Tavendale v The Age Co Ltd,[29] where a judge of this Court determined the impairments to the knees should be aggregated because the effects of the injury to one knee caused the injury to the other. Factually, the Court in Lexa distinguished Tavendale’s case. In that case, after an examination of earlier authority, his Honour Judge Saccardo assessed the combined effect of both knees. Accordingly, in an application of judicial comity between judicial officers of the same inferior court, I will follow the principle stated by his Honour unless convinced it is wrong. I am not so convinced.
[29] [2009] VCC 642.
84The question is whether the principle in Tavendale’s case applies to the facts of this case. Dr Bloom said:
“She said that her left shoulder symptoms commenced about four weeks later, and she attributed that to using her left upper limb more than she would otherwise have done because of the dysfunction of her right shoulder. The evidence is that this is not the case, and that rather, the underlying condition is bilateral and therefore tends eventually to be bilaterally symptomatic.”[30]
[30] DCB 27, at [12](b).
85In this context, the use of the word “eventually” is disconcerting. The fact, according to Dr Bloom, that the underlying condition will become symptomatic does not explicitly deny Ms Scrofani’s experience. That is, she injured her right shoulder. She continued working while favouring her left arm. This is her non-dominant arm. While doing so, between early and late October, she injures her left shoulder. Neither Dr Low nor Dr Swan comment on this issue.
Permanent
86The respondent raised the issue of permanency, largely stemming from Dr Swan’s recommended treatment. This proceeding was heard in the afternoon. After reserving, I realised the parties had not had sufficient time to explore permanency in their oral submissions. I gave the parties the opportunity of providing written submissions and, in doing so, I referred the parties to Cardoso v Staff Australia Payroll Services Pty Ltd.[31] The parties made written submissions.
[31] [2019] VSCA 139.
87Paragraph (a) of the definition of “serious injury” speaks of “permanent serious impairment or loss of a body function”. The serious impairment or loss must be permanent. In Barwon Spinners Pty Ltd v Podolak, the Court said of the phrase “permanent serious impairment”:
“… that the impairment of a body function will answer the description ‘permanent serious impairment’ if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the ‘very considerable’ test, is permanent, in the sense of likely to last for the foreseeable future …”[32]
[32] (2005) 14 VR 622 at [34].
88Earlier, the Court considered the meaning of “permanent”, saying:
“As we read it, the word ‘permanent’ in the definition of ‘serious injury’ in s 134AB(37) conveys the probability that the impairment or other condition will last and not mend or repair – or at least not to any significant extent.”[33]
[33] Ibid, at [19].
89In Cardoso’s case, the Court, after discussing a submission by the respondent to that appeal, said:
“The point does not need to be determined because as we see it, no different result is reached by dissecting the Court’s task in the manner suggested by the respondent. That task remains ‘to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future’.”[34]
[34][2019] VSCA 139 at [47].
90Assuming at present the consequences of the impairment or loss satisfy the very considerable test, then, in a case like this one, the court must determine whether the impairment or loss will not mend or repair at least to a significant extent in the foreseeable future.
Discussion
Credit
91The defendant challenged Ms Scrofani’s truthfulness as a witness. It contrasted her evidence in her affidavits of not working since stopping with Ramada Resort, except for two weeks of cleaning work in Karratha, with her oral evidence.
92Her evidence about aspects of her involvement in her partner’s business are too minor to cause me to doubt her sworn evidence. I would not consider those activities constituted “work” in the usual meaning of the word. I am satisfied Ms Scrofani is a credible witness.
Injury
93I had the opinions of two occupational physicians and an orthopaedic surgeon.
94Dr Low diagnosed supraspinatus tendon tears in each shoulder and subacromial bursitis. These conditions were revealed in the 2020 and 2021 ultrasounds.
95For Dr Swan, there was rotator cuff tendinosis for the shoulders, adhesive capsulitis for both and chronic pain. Puzzlingly, he mentions the supraspinatus tendon tear for the left shoulder but not the right. Elsewhere, he uses the term “tendinopathy” to encompass the tendinosis and the supraspinatus tendon tears. The tendinopathy is likely to be age-related and degenerative in nature. It has progressed to a full-thickness tear of the left supraspinatus.
96These conditions result from the aggravation of pre-existing conditions, rotator cuff tendinopathy and degenerative changes. The pre-existing conditions are related to her age and employment over an extended period. Her employment with Ramada Resort aggravated her rotator cuff tendinopathy, resulting in bilateral shoulder joint inflammation and adhesive capsulitis.
97For Dr Bloom, the diagnosis is more general, being rotator cuff dysfunction secondary to degenerative rotator cuff disease. The nature of the disease and the dysfunction is unclear.
98Judging from the list of Dr Swan’s published articles, he has an interest in the shoulder and, in particular, rotator cuff tears. He is an orthopaedic surgeon. Additionally, Dr Swan had the distinct advantage of a face-to-face examination of Ms Scrofani. Through his occupational experience and the circumstances of his examination, the opinions of Dr Swan are preferable to those of the other specialists where there is a conflict.
99As I read his report, Dr Swan says the rotator cuff tendinopathy and degenerative changes were pre-existing conditions (or injuries). The cause of these conditions was both age-related and employment-related over an extended period of time. These conditions were aggravated by her employment with Ramada Resort. Using the word “plausible”, this has led to joint inflammation of the shoulders and adhesive capsulitis.
100I am satisfied Ms Scrofani suffered the injury described by Dr Swan. The injury is an extended injury in the form of an aggravation of a pre-existing injury. The joint inflammation and adhesive capsulitis are part of the process caused by the aggravation.
101Dr Bloom offers a tentative, contrary view. It is undoubted Ms Scrofani’s employment with Ramada Resort caused her pre-existing condition to become painful for the first time. Even though her treatment has been less than adequate, it has remained painful. Using Dr Bloom’s dichotomy, it is an aggravation, not an exacerbation. It is too unlikely to find that the effects of the aggravation would have been overtaken by the natural course of the pre-existing condition absent her employment with Ramada Resort.
Aggregation
102In Tavendale’s case, it was the favouring of an uninjured leg because of the injury to the other which led to the uninjured leg becoming impaired.
103Ms Scrofani explained the circumstances in which her left shoulder became painful. The medical practitioner who commented on this issue was Dr Bloom. At first sight, he rejected the link but, in the passages I quoted, I doubt he has done so. Reading his reports, Dr Bloom appears to be a cautious practitioner. Sometimes his conclusions are expressed tentatively.
104Accepting Ms Scrofani’s evidence, I consider this is a case covered by the principle in Tavendale’s case, and I will aggregate the impairments to Ms Scrofani’s shoulders for the purpose of determining whether she has suffered a serious injury.
Permanency
105This proceeding raises the issue of permanency in two ways. First, there is the view of Dr Bloom that the worsening of Ms Scrofani’s condition due to her employment with Ramada Resort has ended. Second, the treatment recommended by Dr Swan means the consequences of her injury will not remain serious in the foreseeable future.
106Dealing with the first aspect, I do not consider the contribution to the worsening of the condition of her shoulders through her employment with Ramada Resort has ended. Dr Bloom’s opinion is too tentative to support that view. The other occupational physician, Dr Low, negates that view for reasons which are acceptable: Ms Scrofani has not recovered from her initial injury and nothing has intervened causally in the meanwhile. If he spoke of the present when expressing that opinion, it is implicit from his guarded prognosis and his assessment of her capacity for work.
107As to the second aspect, the tendons of the rotator cuffs will remain painful indefinitely. Recognising this, Dr Swan recommended assessment by a chronic pain specialist to optimise her analgesia. Presumably, he believes what she now takes can be improved. Second, in the short-term, there should be an injection into the shoulder joints and a form of physiotherapy. The former should reduce the inflammation and the latter improve her range of motion and “symptoms”. It is unclear what he means by “symptoms”.
108Both Dr Bloom and Dr Swan saw the usefulness of further treatment. One supposes Dr Low did not, unless it was some form of surgery.
109The meaning of “permanent” in this context requires a prediction for the foreseeable future. It is a prediction which excludes the possibility of the mending or repairing of the injury such that its consequences do not fall below those required for a “serious injury”.
110On the suggestion of Dr Low, Dr Swan, an orthopaedic surgeon, examined Ms Scrofani. He did not recommend any form of surgery even with partial tears. He did recommend an injection and a form of physiotherapy over 6 to 12 months. Relying on his experience, the former should lessen the inflammation. Both procedures should increase the range of Ms Scrofani’s movements of her shoulders. He expected significant improvement. The restrictions on the use of her shoulders stem from her adhesive capsulitis and the experience of pain. Her shoulders have been painful to some extent over the past five years. Dr Swan says Ms Scrofani has developed chronic pain. By using the word “chronic”, coupled with a guarded prognosis, I understand him to mean her state of pain will continue indefinitely. Treatment may ease her experience of pain temporarily, but it will not eliminate it or reduce it to the extent relevant to the issue of a “serious injury”.
111It is incorrect to find Ms Scrofani has undergone similar, or even identical, treatment without providing any long-lasting relief. The nature of her physiotherapy treatment was not disclosed in the evidence. It is speculative to say it is similar to that proposed by Dr Swan. Although he named a particular form of physiotherapy, what it involves was not revealed in the evidence. Ms Scrofani undertook physiotherapy while travelling. It was occasional and not the lengthy, continuous course recommended by Dr Swan.
112At this stage, Dr Swan did not recommend surgery. He saw the benefits of non-surgical treatment. He described those benefits as “significant”. He did not limit the period of those benefits. On the other hand, he gave a guarded prognosis even though making treatment recommendations. For those positions to be consistent, it must mean the treatment may improve the movements of her shoulders but will not stop her painful condition, which is expected to worsen. In other words, the recommended treatment does not have a long-term effect, especially in relation to the pain she experiences.
113In his written submission, Ms Scrofani’s counsel wrote:
“A consideration of all of the evidence in this application makes it clear that the Plaintiff’s symptoms have persisted for at least 5 years, she has tried a multitude of treatments over those 5 years, has had multiple investigations and has even trialled a Guided injection, none of which have provided any long lasting relief.”[35]
[35] Submission dated 9 October 2023 at [25].
114It is true Ms Scrofani has had symptoms for five years. She has received occasional treatment for her shoulders. They have never been the subject of prolonged, planned treatment. Relying upon her experience of symptoms for five years can be misleading. I believe it misled Dr Low. He summarises his understanding of her treatment. In Narooma, she took analgesia, undertook physiotherapy and had a cortisone injection. There was no specific treatment in Western Australia. In Noosa, she trialled Pilates. In Victoria, there has been nothing. This is not a picture of a prolonged form of treatment.
115Dr Swan was aware of Ms Scrofani’s treatment, which he summarises. Despite that history, and in light of his diagnoses, he made specific recommendations. Ms Scrofani points out he is relying on his experience and there is no certainty of that result for her. That may be so, but that is the purpose of treatment. I doubt there are many practitioners who would say a particular treatment will certainly achieve a particular result. That is why a person seeks the opinion of a practitioner. Dr Swan does not predict a complete recovery. He predicts a significant benefit. If Ms Scrofani rejected his advice, depending on financial circumstances, it might be considered unreasonable.
116Dr Bloom recommended exercises to strengthen the small rotator cuff muscles to stabilise the rotator cuff mechanism. Presumably, this would slow the pace of deterioration.
117Apart from the possibility of surgery, Dr Low did not recommend any form of conservative treatment. If he thought it had been tried and failed, then he over-estimated the nature of the treatment she had received.
118Despite the sporadic nature of her treatment in the past five years, the existence of her painful shoulders for the past five years caused Dr Swan to say it was chronic. Its chronicity will persist into the foreseeable future because Dr Swan is guarded or uncertain as to his prognosis.
119Ms Scrofani experiences pain in both shoulders. She has done so for the past five years. The pain is chronic. It will persist for the foreseeable future. Treatment may lessen it temporarily but will not eliminate it. It will worsen in time.
Arising out of or in the course of her employment
120As to the required causal connection between Ms Scrofani’s injury and her employment with Wyndham Destinations, the defendant points to an entry in the records of the Braveheart Healthcare on 6 December 2019, ‘left shoulder pain post kayaking 1/52 days ago’ and an entry in the records of the Moruya District Hospital on 22 December 2019, ‘she has a left rotator cuff tear from a kayaking injury last year.’
121Ms Scrofani tried kayaking after the injury but stopped shortly after starting. It was put to her she told the practitioner at the hospital the rotator cuff tear was due to kayaking. Her response was, ‘I don’t know why they wrote that’.[36] I can understand her response. To link a rotator cuff tear and kayaking, she must have been told of the tear and of the link between it and kayaking. Looking at the material, who would have done that.
[36]Transcript at p 24.
122Where it is submitted there is an intervening cause to her injury breaking the link between the injury and her employment with Wyndham Destinations, I would reject it.
Serious Injury
123Bearing in mind the test for a ‘serious injury’, in the main it is the experience of pain which restricts Ms Scrofani in so many of her pre-injury activities, even the apparently simple activity of ‘dream catchers’. For a person with relatively narrow interests, she has lost a great deal, sufficiently great to justify a finding of a ‘serious injury.’
Conclusion
124I am satisfied Ms Scrofani has suffered a serious injury and I will grant her leave to start an action for damages for pain and suffering. I will hear the parties on the form of my orders and the questions of costs.
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