Shields v Eastern Health
[2013] VCC 1919
•10 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST SERIOUS INJURY DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-11-05634
| Carmel Shields | Plaintiff |
| v | |
| Eastern Health | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2013 | |
DATE OF JUDGMENT: | 10 December 2013 | |
CASE MAY BE CITED AS: | Shields v Eastern Health | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1919 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – injury to the right shoulder – pain and suffering
Legislation Cited: Accident Compensation Act 1985 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Purcell | Adviceline Injury Lawyers |
| For the Defendant | Mr R. Kumar | Hall & Wilcox |
HER HONOUR:
1 The plaintiff applies under s 134AB(16)(b) of the Accident Compensation Act1985 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the right shoulder suffered on 29 February 2008 during the course of her employment with the defendant as a night shift nurse.
The Issues
2 The defendant agrees that the plaintiff suffered an injury to the right shoulder in that incident but says that there is a divergence of opinion as to diagnosis and as to the extent to which the incident of 29 February 2008 continues to be relevant to her current presentation. The defendant says that the plaintiff’s compensable injury either resolved or was overtaken by a further injury to the same body function in early January 2009. In this regard the defendant relies on a number of facts: the plaintiff had a hydrodilatation after the 2008 incident and was able to resume working, albeit in administrative duties on restricted hours in April 2008 before other illnesses supervened. She returned to part-time light office duties in August 2008 and returned to full time hours in September 2008. In late 2008 she resigned her employment and then commenced working doing casual day shift work with Mountain District Private Hospital as well as some agency work, which was heavier work, with Vital Signs. She suffered an exacerbation of her right shoulder pain at work in January 2009. The defendant says that this further injury is responsible for her current presentation and it is therefore impossible for the plaintiff to establish a permanent impairment arising out of the compensable injury alone. Finally, the defendant says that for a number of reasons the plaintiff has not established that the pain and suffering consequences of the compensable right shoulder injury are more than considerable when compared with other cases in the range of impairments. In this regard the defendant relies, amongst other things, on the absence of evidence as to how the right shoulder injury prevents her from travelling, singing, dancing, attending motor sports or reading and doing creative writing; and on the relatively little treatment she has for her pain. The defendant says that only the pain arising from the compensable injury is to be considered, not any sequelae of any further injury which has occurred.
The Hearing
3 The plaintiff gave evidence and was cross-examined. No other witnesses were called. The parties tendered court books. I have considered all of the material relied upon by the parties.
Plaintiff’s Evidence
4 The plaintiff is 59 years old and is right-handed. She was born and educated in New Zealand and left school at 15. She worked as an office junior then as a personal carer and in a saddlery. She qualified in New Zealand as the equivalent of a Division 1 Registered Nurse and worked at a hospital in Auckland during the 1980’s. She then worked as a radio announcer for five years before returning to nursing, where she became a clinical charge nurse co-ordinator and quality coordinator of perioperative services at another hospital in Auckland. She came to Australia in 2005 and qualified as a Division 1 Registered Nurse. She obtained agency nursing work.
5 She commenced working with the defendant as a Division 1 Registered Nurse in March 2007, working 3-4 shifts per week at different wards at Maroondah Hospital through the casual nurse bank. She enjoyed her work. She was doing night shift only and had no trouble with her duties. She was also doing some occasional afternoon agency work at other hospitals, and had no trouble with her duties there.
6 On 29 February 2008 she was assaulted by a patient at work, who grabbed her around the neck. She saw her doctor, Dr Carne, that day for pain in the shoulders, neck and upper back. Over the next few days the right shoulder became the main problem. She was put off work, had physiotherapy and was sent for an ultrasound which was reported as showing “mildly thickened subdeltoid bursa could be bursitis. A suspicion of subscapularis tendinopathy. No tendon tear is detected.”[1]
[1]PCB 31
7 In early April 2008 she returned to administrative duties on restricted hours, but her return to work was interrupted by other illnesses.
8 Her shoulder symptoms did not improve, in spite of twice weekly physiotherapy and daily medication including Tramadol and Celebrex. On 2 May 2008 Dr Carne performed an injection into the right shoulder, which the plaintiff did not find helpful. She had pain, limited movement and weakness in the right shoulder.
9 An MRI scan of the right shoulder on 5 June 2008 was reported[2] with the following conclusions:
Findings are highly suspicious of an irregular tear of the postosuperior labrum with evidence of a fluid signal clef extending into the biceps tendon anchor. A 6 mm paralabral cyst is seen along the postosuperior margin of the glenoid.
Mild tendinopathy of the distal supraspinatus and subscapularis tendons but no rotator cuff tear. Mild AC joint arthropathy. Small shoulder joint effusion, no intra-articular loose body.
[2]PCB 32
10 The plaintiff was then referred to Mr Holland, orthopaedic surgeon, who sent her for right shoulder hydrodilatation which was performed on 27 June 2008.[3] She obtained some relief initially, returning to part-time light duties in the office in early August 2008, and performing normal hours and duties by September 2008. She found doing the night shifts difficult. In late 2008 she resigned her employment with the defendant. One of the reasons for this decision was to pursue easier work doing casual work at another hospital (Mountain District Private Hospital). She initially coped with this work. At that time she was coping with her right shoulder pain but was still attending physiotherapy and doing exercises at home.
[3]PCB 32a
11 She also tried some light agency work with Vital Signs which was heavier. Around this time her right shoulder pain worsened after activity at home. She had some difficulty at work reaching for things above shoulder height, pushing medication trolleys and occasionally handling patients. She was adamant in cross-examination that there was no worsening of her symptoms because of that work. Rather, she said, her right shoulder symptoms were present from the time of the injury in February 2008, although she got some temporary relief from the various hydrodilatations. She stopped working for Vital Signs in early 2009. She worked on and off for Mountain District Private Hospital until November 2009 when she decided due to her injury to stop nursing. Since that time she has worked from home doing medical transcription, which allows her to move around at will and pace herself.
12 In relation to her medical treatment, her right shoulder pain persisted and Mr Holland referred her for a second hydrodilatation on 7 May 2009.[4] She saw Mr Holland again in September 2009, and he referred her for a further MRI scan which was reported[5] on 11 September 2009 with the following conclusion:
Glenohumeral joint arthropathy. Complex tear of the labrum effectively circumferential.
Subscapularis tendinopathy.
Partial thickness insertional surface tear supraspinatus tendon. Rotator interval inflammation. Biceps tendon appears intact.
[4]PCB 32b
[5]PCB 33
13 By letter dated 27 January 2010 the defendant accepted liability for the injury to the “[r]ight shoulder (with referred pain into back, arms and neck)”.[6]
[6]PCB 92
14 She saw Mr Holland again in September 2010. An MRI scan of the right shoulder on 14 December 2010 was reported with the following conclusion:[7]
Glenohumeral joint degenerative change with glenoid retroversion.
Mild supraspinatus, subscapularis and long head of biceps tendinopathy but without significant rotator cuff tear.
[7]PCB 34
15 She saw Mr Holland’s locum in March 2011. She was then referred to another orthopaedic surgeon, Mr Ash Moaveni, whom she consulted in April and August 2013. He ordered a further MRI of the right shoulder on 27 June 2013 which was reported with the following conclusion:[8]
Anterior supraspinatus tendinopathy and infraspinatus tendinosis. No rotator cuff tear.
Mild subacromial bursitis.
Stable moderate degenerative changes in the glenohumeral joint with small joint effusion and synovitis.
Degenderative changes/tearing in bicipitolabral anchor and superior labrum. Chronic posterosuperior to posterior labral tear. The superior labral changes are new, whereas the posterior labral changes are chronic. 6 mm calcified body in superior subscapularis recess is stable.
[8]PCB 35a
16 She underwent a further hydrodilatation on 19 July 2013[9] but the benefit she gained did not last.
[9]PCB 75 The original report of hydrodilation from 19 July 2013 was not provided but Mr Ash Moaveni referred to the plaintiff undergoing treatment on this date
17 Her current situation in relation to the right shoulder may be briefly summarised. She is right-handed, and has pain in her right shoulder most of the time which is increases when she moves her right arm. She has referred pain into her neck and upper back. She takes four Panadol Osteo and two Mersyndol (night strength) per day. Her right shoulder is very stiff. She has trouble doing things above shoulder height. Her sleep is interrupted once or twice at night by right shoulder pain. She is stiff and tired in the morning. She has trouble showering and dressing, particularly reaching her hair and behind her back. She finds it hard to drive more than 20 minutes and has had a knob installed on the steering wheel to facilitate turning.
18 Prior to her injury she did most of the housework without assistance. Now her husband helps make the bed by changing the sheets. She can no longer hang large items of washing on the line. She can no longer vacuum the carpet which covers two-thirds of the house. She can no longer push heavy trolleys or carry heavy bags of shopping and her husband puts it away. She can no longer do the ironing nor clean the shower. Due to all her restrictions she is less able to assist her own mother. She cannot play golf. Her shoulder injury ended her career as a nurse and she misses her colleagues, patients and the work satisfaction and financial security that nursing provided. She intended to work as a nurse until retirement age. She has put on weight due to inactivity and spends most of her time at home. She socialises much less than she used to.
19 She has retrained as a medical transcriptionist and is able to work at home as a subcontractor, doing the equivalent of full time hours, because she can work at her own pace, although she is a relatively slow typist. Typing for more than a few hours aggravates her shoulder pain but she can take breaks when she wants. Reaching for the computer mouse or the telephone while she is working also causes her right shoulder pain.
20 She understands that her treatment options include continued conservative treatment with medication and up to three hydrodilatations per year; arthroscopy, or total shoulder replacement if the pain is too much to bear. She wishes to continue conservative management of her condition. She agreed in cross-examination that she sees her doctor, Dr Carne, relatively infrequently for her right shoulder and said this was because she knows what her options are and has chosen to manage her condition with medication and home exercises. She said that her right shoulder symptoms have returned to their pre-hydrodilatation state.
Medical Evidence[10]
Treating doctors and physiotherapist
[10]I have omitted reference to those reports addressing an unrelated left shoulder injury.
21 The plaintiff’s treating general practitioner, Dr David Carne, provided a number of reports to the insurer and to the plaintiff’s solicitors.
22 The first report is undated but from the text appears to have been prepared after 22 July 2009.[11] In the report, Dr Carne opined that the plaintiff suffered a rotator cuff injury to the right shoulder in the work-related incident in February 2008 which “improved with treatment and was then aggravated and it has become a chronic rotator cuff injury”.[12] He also noted that the injury “was aggravated by work between October 2008 and January 2009”.[13]
[11]PCB 36
[12]PCB 37
[13]PCB 37
23 In his second report dated 26 May 2009 Dr Carne noted that the plaintiff recovered well enough to resume normal duties on 22 September 2008,[14] although she continued to have “some pain but it was not enough to stop her working until early January 2009 when the pain became more severe”.[15]
[14]PCB 37a
[15]PCB 37a
24 On 23 June 2009, Dr Carne reported that the second hydrodilatation had not helped the plaintiff as much as the first one, and the plaintiff was to have further physiotherapy and be reviewed to see if she required an arthroscopy.[16] He noted that she had persistent pain with movement of the right shoulder which was preventing her from performing most of the nursing duties which required the use of her right arm. He felt that the work she did as an agency nurse between October 2008 and January 2009 “ did appear to aggravate the pain in her injured shoulder”.[17] He felt that she could not return to her pre-injury employment but was capable of suitable employment.
[16]PCB 38
[17]PCB 39
25 On 25 June 2010 he reported that as at June 2010 the plaintiff was despondent concerning her injury and was considering alternative employment.[18] He again certified her unfit for any nursing duties for the previous 6 months.
[18]PCB 40
26 On 23 May 2011 Dr Carne reported that the plaintiff suffered from a SLAP tear to her right shoulder in February 2008 and secondary adhesive capsulitis.[19] She continued to have chronic ongoing pain in her shoulder with restriction of movement. He noted that she had had right shoulder pain for the previous three years and would be permanently unable to return to her pre-injury duties.
[19]PCB 42
27 On 22 May 2012 Dr Carne repeated his earlier diagnosis and noted that the plaintiff was unable to perform nursing duties, unable to do heavy physical work at home such as vacuuming and hanging up the washing, but was able to work as a medical transcriptionist.[20] He noted that her current right shoulder incapacity was caused by the incident in February 2008, had become chronic, and was likely to permanently prevent a return to pre-injury duties.
[20]PCB 44
28 On 23 November 2012, Dr Carne reported in similar terms to his previous report.[21] On 17 August 2013, Dr Carne reported[22] that she continued to suffer from chronic pain, despite a good result from repeat hydrodilatation, and noted that the recent MRI demonstrated “degenerative changes in the labrum and osteoarthritis in her shoulder joint”.[23] He noted that her previous restrictions continued.
[21]PCB 45
[22]PCB 46a
[23]PCB 46b
29 The treating physiotherapist, Mr Eric Yeap, reported on 31 August 2009[24] that he first saw Ms Shield on 6 March 2009 one week after the workplace assault.[25] He noted her initial but unsuccessful treatment with a Cortisone injection, the improvement of her symptoms after the first hydrodilatation, her return to full clinical duties in September 2008 and her move to lighter employment at Mountain Districts. He noted:[26]
Over the course of the next few months Carmel worked at Mountain Districts and agency work in Nursing Homes, but unfortunately her shoulder progressively worsened again. She returned to see Mr Holland again in April ’09. He ordered another hydrodilatation and review. Unfortunately the hydrodilatation did not make any improvement and he referred her back for more physiotherapy to regain movement before considering surgery. Carmel is due to return to see Mr Holland on 3 September ’09.
According to her MRI in June ’08 her injury is a postero-superior labral tear at the point of insertion of her biceps tendon on her right shoulder.
According to my records and the history presented to me by Carmel I can conclude that her employment in February 2008 was a significant contributing factor to her current shoulder dysfunction. My records indicated that whilst she was given full clearance to return to work in Sept ’09 she resigned from Maroondah Hospital soon after, her shoulder pain and dysfunction returned in the months afterwards.
[24]PCB 50
[25]It appears as though an error has been made by Mr Yeap who referred to having first seen Ms Shields in 2009. However, he must have meant 2008 given the incident occurred in 2008 and in cross-examination the plaintiff referred to having attended her physiotherapist in mid 2008.
[26]PCB 51
30 The treating orthopaedic surgeon, Mr Moaveni, wrote to Dr Carne on 8 July 2013[27] stating that he had explained to the plaintiff that her most recent MRI of the right shoulder showed osteoarthritis and degenerative changes in the labrum. He told her that her non-operative options included “activity modification, analgesics, Cortisone injections, physiotherapy, and other ancillary management”.[28] On 20 September 2013[29] he noted that he was unable to comment on the question as to whether her present condition was work-related. He opined that her right shoulder injury would cause difficulty in performing tasks requiring lifting, pushing, pulling and repetitive movement.
Medico-legal opinions
[27]PCB 46f
[28]PCB 46f
[29]PCB 75
31 Mr Rodney Simm, orthopaedic surgeon, provided three medico-legal reports to the plaintiff’s solicitors dated 7 March 2011,[30] 16 October 2012[31] and 24 October 2013.[32] In his first report,[33] Mr Simm noted a history which included the incident of 29 February 2008, the symptoms which persisted in the right shoulder and back, the treatment with physiotherapy, the unsuccessful Cortisone injection, the diagnosis by Mr Holland of adhesive capsulitis “possibly secondary to the SLAP tear”,[34] the improvement of her symptoms after the first hydrodilatation, and the return to normal nursing duties. He noted:[35]
She resumed nursing duties in late August 2008 working on night shift. The return to normal nursing duties was associated with increased pain in the right shoulder and in late 2008 she resigned her employment with Eastern Health and took up employment at the Mountain District Private Hospital. She thought this work may be lighter and she was initially able to cope. However, she found it very difficult to sustain the work at Mountain District Hospital and she also tried some agency work. She eventually ceased work altogether in early 2009 and not returned to nursing since then.
[30]PCB 52
[31]PCB 60
[32]PCB 67
[33]Mr Simm’s report also deals with the left shoulder and the complaint of neck pain. I have confined my analysis of his report to the right shoulder.
[34]PCB 53
[35]PCB 53
32 Mr Simm noted that the plaintiff complained of pain when lying on the right shoulder, the need to alter her grip on the steering wheel, painful restriction of right shoulder movement, an inability to use her right arm in the overhead position, an inability to reach the back of her head to wash her hair or behind her back to fasten her bra. She avoided carrying objects in the right hand.
33 On examination, he found restriction of movement in the right shoulder with complaint of pain. He felt that the most likely diagnosis was “symptomatic rotator cuff tendonitis of the shoulder”,[36] although he noted that there was “restricted glenohumeral mobility raising the possibility of some persistent capsular contracture following her previous adhesive capsulitis as diagnosed by Mr Holland”.[37] He noted that the three MRI scans reported “quite different findings in relation to the superior glenoid labrum”,[38] and also noted that it had not been possible for him to perform the clinical test for a glenoid labral tear. For these reasons, he felt that the diagnosis of a symptomatic SLAP tear was unlikely. He posited an alternative diagnosis of residual symptoms of adhesive capsulitis following the “traumatic incident on 29th February 2008”.[39]
[36]PCB 56
[37]PCB 56
[38]PCB 57
[39]PCB 57
34 Mr Simm concluded that the underlying pathology was that of age-related degenerative change but that the symptoms of rotator cuff tendonitis were “initiated”[40] by the right shoulder strain suffered at work on 29 February 2008 and that her employment was still contributing to her current condition. He felt that she would permanently suffer from painful restriction of movement of the right shoulder, which should be treated conservatively, that she was permanently incapable of working as a nurse, and would permanently be restricted to employment not involving use of the arms away from the body or in the overhead position.
[40]PCB 57
35 In his second report, Mr Simm again noted that he was unable to provide a definite diagnosis for the persistent pain and limited movement of the right shoulder. His findings on examination showed “some features of subacromial impingement and mild capsular contracture with limited glenohumeral rotation”,[41] but not all relevant clinical signs were present. There was some contracture of the rotator cuff against resistance, but no complaint of pain. Mr Simm concluded:[42]
Symptoms in the right shoulder were initiated by a shoulder strain injury at work on 29 February 2008 and symptoms have persisted from that time until the present time without any sustained period of recovery. On the basis of this history the painful limitation of right shoulder movement represents an unresolved soft tissue injury in the right shoulder in the presence of age-related degenerative changes as reported on the MRI scan.
[41]PCB 64
[42]PCB 64
36 Mr Simm repeated his earlier opinion that continued conservative treatment, with self-regulation of activities, analgesic and anti-inflammatory medication was appropriate. He noted that because she continued to have some features of subacromial impingement of the right shoulder, consideration could be given to a steroid injection. A very good response to such an injection might “provide the indication to consider an arthroscopic subacromial decompression”.[43] He noted that the work injury would not prevent her working as a medical transcriptionist.
[43]PCB 65
37 In his third report, Mr Simm noted that since the previous examination the plaintiff reported her right shoulder pain may be worse and the shoulder more restricted but that she was “managing better”.[44] He noted that further hydrodilatation in July 2013 had produced only short-term improvement. He noted her complaint that the right shoulder pain radiated into the upper arms, that she struggled to reach the back of her head, and was “just able to wipe after going to the toilet”.[45] Her right shoulder clicked on movement and she could not lie comfortably on her right side at night. She required a knob on the steering wheel and found prolonged driving made her shoulders ache. She was independent with her personal activities of daily living. She had bought a motorised vacuum cleaner and was able to use it. She was able to do the shopping, to clean the bathroom to head height, and to hang the washing on a clotheshorse inside. On examination he made similar findings as in his previous report. He felt that she tested “probably negative”[46] for subacromial impingement, and that the other findings were non-specific. In relation to the right shoulder, he concluded:[47]
The recent MRI scan showed some degenerative changes in the right shoulder which included degenerative rotator cuff tendinopathy, subacromial bursitis, degenerative changes in the labrum and glenohumeral joint. In isolation these changes would not be uncommon in the general population and would not necessarily be responsible for symptoms, however in this case the ongoing dysfunction of the right shoulder probably relates to these degenerative changes. She no longer has the typical signs and symptoms of adhesive capsulitis (frozen shoulder).
[44]PCB 68
[45]PCB 69
[46]PCB 70
[47]PCB 70
38 He repeated his earlier conclusion that “as a result of soft tissue injuries in the workplace she initiated symptoms from underlying degenerative pathology in both shoulders. The symptoms have persisted and resulted in bilateral shoulder dysfunction”.[48] He noted that she was able to manage full time light work as a medical transcriptionist but suffers some aggravation of symptoms after prolonged sitting at a computer. He noted that there will be permanent constraints on strenuous and overhead activities at home. He did not consider that there was any condition amenable to surgical treatment and recommended continued conservative treatment.
[48]PCB 71
39 Mr T Russell, General Surgeon, opined in a report to the insurer dated 21 September 2009,[49] that the plaintiff suffered a work-related right shoulder injury on 29 February 2008, and recited the original diagnosis provided by Mr Holland, that of adhesive capsulitis and possible SLAP tear. He noted that she returned to normal work before resigning from the defendant, and gave a history of “having issues with the work she was performing in the aged care industry subsequent to employment at Maroondah hospital”.[50] He concluded that it “seems likely that this lady has suffered an injurious effect out of or in the course of her employment after she resigned from Maroondah Hospital”.[51]
[49]DCB 98
[50]DCB 99
[51]DCB 99
40 On 4 November 2010 Dr Kevin Fraser, rheumatologist, provided a medico-legal report to the defendant’s solicitors in which he noted that “there was quite marked guarding on physical examination, with probable overreaction”,[52] but did not note any other specific non-organic signs. Dr Fraser was considering both shoulders, and relied on the atypical course of the left shoulder injury in 2006, along with the atypical relapse in the right shoulder after hydrodilation, “in conjunction with the clinical impression of overreaction on physical examination”,[53] as the basis for his conclusion that, in relation to both shoulders:[54]
…non-organic factors are probably contributing to the restriction of shoulder movements. To the extent that there may be an organic basis for the shoulder pain it is, in my view, most likely due to age-related degenerative changes involving the shoulders and/or rotator cuff mechanisms.
[52]DCB 101
[53]DCB 102
[54]DCB 102
41 On 19 May 2011, Mr Michael Troy, surgeon, reported[55] a history of the incident on 28 February 2008 with subsequent right shoulder pain, the successful right shoulder hydrodilatation in July 2008 and the resumption of full time normal duties doing night shift three or four times per week. He then noted restrictions of right shoulder movement on examination. He noted the MRI results and diagnosed a soft tissue injury to both shoulders, identified by examination, history and investigation. He felt that the injury “may have been initially related to adhesive capsulitis in both shoulders superimposed on degenerative changes. She has no evidence of adhesive capsulitis in either shoulder. She has some degenerative changes there and that is why her symptoms are as they are”.[56] He concluded:[57]
This lady’s present condition in her shoulders is not related to work practices at Eastern Metropolitan Health Services. She has ongoing symptoms related to degenerative changes in both shoulders and if she has any symptoms, it is most likely related to what she is now doing in her own domestic situation and her transcription services. The treatment of question of an injection and a hydrodilatation is not an expense related to the incident of 29/02/2008.
[55]DCB 119
[56]DCB 122
[57]DCB 123
42 On 15 February 2013, Mr Troy provided a further report which again noted restrictions of movement of both shoulders on examination. He noted a right shoulder injury in 2008.[58] He felt that there had been deterioration in the right shoulder, but less in the left. He then stated that the reason for the deterioration was that “she developed that adhesive capsulitis and that has now stabilised”.[59] He responded “yes” to the question as to whether her right shoulder condition was “materially contributed to” by her employment and/or activities she participated in since ceasing employment with Maroondah Hospital.[60] There followed a paragraph in which he noted that her right shoulder movements were better in 2011 than on his most recent examination, and “that is indicative of that condition of adhesive capsulitis”, but that her work as a medical transcriptionist “would not cause any ongoing deterioration or aggravation of the pre-existing changes already in that right shoulder” in late 2010.[61]
[58]DCB 129
[59]DCB 129
[60]DCB 129
[61]DCB 130
The Legal Principles
43 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function, and, relevantly that the consequences to her in terms of pain and suffering are, 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 as being at least very considerable.[62] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[63]
[62]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[63]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42].
44 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[64] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[65] The ‘pain and suffering consequences’ of an injury encompass the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[66]
[64]Fleming v Hutchinson (1991) 66 ALJR 211.
[65]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
[66]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA); Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.
45 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[67]
[67]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
46 The whole of the evidence before the court should be considered, not just the medical evidence.[68]
[68]Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, [170].
47 In cases involving aggravation of a pre-existing injury or condition there must be an analysis of the extent of the impairment of the relevant body function before and after the injury. In addition, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.[69]
[69]Petkovski v Galletti [1994] 1 VR 436, 444; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz [2012] VSCA 60 (4 April 2012).
48 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[70]
[70]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46
49 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[71] Each case has to be determined in the light of its own facts.[72]
[71]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[72]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
50 Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[73]
[73]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
Findings and reasons
51 I consider that the weight of the medical evidence (from Mr Simm, Mr Holland and Dr Carne) is to the effect, and I therefore find that as a result of the incident of 29 February 2008, the plaintiff suffered an injury to the right shoulder which is best described by Mr Simm as a soft tissue injury which aggravated pre-existing but asymptomatic degenerative changes in the right shoulder.
52 I found the plaintiff to be an impressive witness. There was no challenge to her account of the circumstances of the occurrence of her right shoulder injury and its sequelae. In particular, I accept her evidence, which is consistent with the histories given to doctors, and with the reports of her treaters (Dr Carne, Mr Yeap and Mr Holland) that she has had problems with the right shoulder since the incident of 29 February 2008 which abated for brief periods after the various hydrodilatations she has undergone but then returned to their post-injury state, in which they have remained. In particular, on her evidence, which I accept, I am satisfied that there was no later further injury to the right shoulder. Rather, the symptoms continued when she tried to work in 2008 and have continued into 2009 and since then. This account is consistent with what she told her treating doctors, Dr Carne and Mr Holland and physiotherapist Mr Yeap.
53 Having accepted the plaintiff’s account of the persistence of her right shoulder symptoms since February 2008, and having found that there was no subsequent injury to the right shoulder in non-compensable circumstances, I consider that the weight of the evidence (from Mr Simm, Mr Holland, Dr Carne) is to the effect that the effects of the work-related right shoulder injury persist until today and are likely to be permanent. I found the reports of Mr Troy to be unintelligible and of little assistance on this question. Dr Fraser’s report was heavily predicated on his suspicion that the plaintiff was overreacting on examination. None of the examining or treating surgeons noted any such findings nor expressed any such concern and I therefore consider it appropriate to put Dr Fraser’s report to one side. Mr Russell’s report was also unhelpful because he accepted the occurrence of a work-related right shoulder injury but then asserted, without reporting any history of any further incident, or explaining how this could occur, that the plaintiff’s current presentation relates to the occurrence of some later, unspecified injury unrelated to her employment with the defendant. Mr Russell’s report is against the weight of other medical opinion, particularly the opinions of treating doctors and of Mr Simm, and I therefore attach little weight to it.
54 I turn to the pain and suffering consequences of the permanent impairment of the function of the right shoulder.
55 She is right handed. She has had a cortisone injection and three hydrodilatations which have not produced lasting relief from her right shoulder symptoms. She has had to give up nursing, which she enjoyed and which she intended to continue until retirement age. She manages her condition conservatively, as per the recommendation of her treating surgeon, Mr Moaveni, with medication, limitation of activities and home exercises. Her current situation in relation to the right shoulder is summarised at paragraphs 24 to 28 above. In all the circumstances, and particularly in light of the constant pain, interruption of sleep, daily ingestion of considerable quantities of analgesic medication, limitations on performance of some very basic personal activities of hygiene and dressing, interference with occupational, recreational and domestic activities, I consider that the pain and suffering consequences of her right shoulder impairment are more than considerable when compared with other cases in the range of impairments.
Conclusion
56 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering only in respect of the right shoulder injury suffered while working for the defendant. The question of costs is reserved.
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