Shojazadeh v Victorian WorkCover Authority
[2019] VCC 1549
•8 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04818
| FATEMEH SHOJAZADEH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2019 | |
DATE OF JUDGMENT: | 8 October 2019 | |
CASE MAY BE CITED AS: | Shojazadeh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1549 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – permanent serious impairment or loss of a body function – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation & Compensation Act 2013
Cases Cited: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff is granted leave to commence proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Ms S C Bailey | Arnold Thomas & Becker Solicitors |
| For the Defendant | Mr A Saunders | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff was born in 1986 in Tehran, Iran. She is thirty-three years of age and recently married. She is right-hand dominant. She completed high school in Iran. She studied an Advanced Diploma in Architecture. She undertook a personal training course for two years in Iran. She worked as an aerobics coach from about 2006 in Iran. She was involved in student protests and was imprisoned in Iran for about two months. She fled Iran and made her way to Indonesia and then, by boat, headed for Australia. She was detained on Christmas Island. She was held in detention for approximately one year. On release, she lived in Adelaide. On obtaining a visa, she moved to Melbourne.
Work history
2 The plaintiff made two affidavits sworn on 14 March 2019 and 10 September 2019. From her first affidavit the following history has been derived.
3 The plaintiff commenced part-time work in a pizza factory, making frozen pizza bases in 2012. The work lasted about eleven months. Subsequently, she worked at a pizza chain, making and delivering pizzas. That work lasted about ten months.
4 The plaintiff commenced work with the employer, Terry’s Tortes & Treats Pty Ltd, in 2014 as a packer. Her hours were lengthy and her pay was poor. The work was heavy and repetitive, involving high reaching to load and unload trolleys to stack cakes in a freezer. A ramp needed to be navigated. The trolley was very heavy and difficult to manoeuvre and control.
Injury
5 In September 2015, the plaintiff commenced to experience pain in her left shoulder. She attended her then general practitioner, Dr Hiwa Sabir. She was told to reduce her hours. Her personal circumstances would not permit her to do so. She had no family or other means of support in Australia. She was referred for an x-ray and ultrasound of her left shoulder. She was prescribed Celebrex and she took Voltaren.
6 Her shoulder became worse with time and she was referred to physiotherapy.
7 The plaintiff ceased work in December 2015 because she could no longer cope with the pain caused to her as a result of the duties required of her in the job.
8 An ultrasound of her left shoulder was performed on 7 December 2015. She had a cortisone injection in her left shoulder on 17 December 2015.
9 A WorkCover claim was submitted and accepted in February 2016.
10 The plaintiff was referred to an orthopaedic surgeon, Dr Li. More injections into the shoulder followed but to little or no benefit.
11 An MRI scan of March 2016 indicated a suspicion of adhesive capsulitis. The development of right shoulder pain was raised but whether it was an occurrence that had a causal relationship to the left shoulder was not pursued in this application.
12 The plaintiff was prescribed Tramadol in May 2016 for her left shoulder pain.
13 In November 2016, the plaintiff went to Dr Clayton Thomas, pain management specialist, for pain management.
14 There have been alterations to the plaintiff’s medication.[1] For example Allegron, 30 milligrams at night, was altered to Topiramate. This did not help her pain, and she was subsequently prescribed Gabapentin, which was beneficial in reducing pain.
[1]Exhibit P3, Plaintiff’s Court Book (“PCB”) 24-25
15 The plaintiff said she commenced work as a Uber driver in approximately the middle of 2016 but it did not last long. She said she was only able to work limited hours and her left shoulder pain became severe after approximately an hour of driving. She said her shoulder felt worse when the air-conditioning was on in the vehicle for the comfort of passengers. It would make her feel dizzy and sometimes resulted in headaches. She said, as well, that because she was taking painkillers, she did not think it wise to be driving.
16 The plaintiff said she came to employment with “Solomons Flooring” working three days per week, eight hours per day, and was paid $20 gross per hour and $480 gross per week.
17 The plaintiff said that her shoulder was particularly bad at the end of a work day.
18 As to consequences, the plaintiff said her left shoulder is constantly painful. The pain she described is felt over her left shoulder and extends down the outside of her arm. The pain radiates up towards her neck. She said she experiences pins and needles from time to time in her left arm, and it is weaker than her right. She said she struggles to sleep on the left side and that she wakes every night with left shoulder pain, often more than once during the course of the evening and, consequently, of a morning, she is fatigued. She said she takes Tramadol (100 milligrams once per day) as well as Panadol. She said she ceased taking medication for a period of time as a result of severe stomach pain, for which she took Nexium. In the period that she relinquished her pain medication, she experienced an increase in shoulder pain.
19 The plaintiff said she has restricted movement in her left arm. She said the restricted movement was improved somewhat temporarily by injections that she had in 2017, but she still gets severe pain when raising her arm at and above shoulder height. She says she endeavours to avoid doing so.
20 The plaintiff said that as a result of the pain and the restricted movement of her left arm, she carries less and relies heavily on her right side. She described doing less shopping and that her husband tends to help with the supermarket or any heavy lifting, but when she is not required to do so, she experiences severe shoulder pain.
21 The plaintiff described impacts on her daily activities, including being limited in housekeeping activities and cleaning her home. She is restricted in cooking, and must avoid lifting heavy pots and pans. She said she struggles to wash her hair due to pain caused by raising her arm.
22 The plaintiff was very interested in personal fitness and aerobics. She explained that her intention had been to pursue such activities when she finished her old bakery job and possibly work in the personal training field. Due to her injuries she believes she will be unable to fulfil that expectation.
23 The plaintiff said that as a result of the left shoulder injury, she struggled to engage in aerobics, for which she had won many awards, or weight training, or gym work. The plaintiff described her love of having previously stayed fit by going to the gym but this had been reduced significantly, and she had been unable to undertake personal training.
24 The plaintiff said that her left shoulder pain affected her ability to engage in manual work, and that she was physically restricted at work and had limited vocational opportunities.
25 By further affidavit, sworn 10 September 2019, [2] the plaintiff said that she ceased working at “Solomons Flooring” in April 2018. On 1 May 2018, she commenced working at “Melbourne Floor Smart” as a salesperson, initially at its Springvale store, but more recently, having moved to its Coburg store. She works full time, eight hours per day, five days per week, and is earning approximately $1,300 gross per fortnight.
[2]Exhibit P1, PCB 9
26 The plaintiff described the work she performs as light work that suits her restrictions. She said she is not required to lift anything at work. She is required to show customers around the showroom/warehouse. She said she would be unable to engage in work that involved heavy lifting or any repetitive activities. She described that when seated at her work desk for too long, especially when work is accompanied by the use of a keyboard, the pain in her left shoulder is aggravated. She said she has frequent breaks, and takes a short walk around the store/warehouse and returns to her desk to continue her work.
27 The plaintiff said that while other sales staff are required to assist with cleaning the store, including vacuuming and mopping, she has been relieved of those tasks by her manager, who is willing to accommodate her restrictions.
Current medical attention
28 The plaintiff said that she attends on her general practitioner approximately once a month. She takes Panadol and Nurofen for her left shoulder pain on a daily basis. When the pain is severe, she uses Tramadol. She uses Voltaren cream at night. She said she endeavours to avoid heavy prescription medication because it can make her feel unwell and because of a concern of a risk of addiction if taken on a lengthy and regular basis.
29 The plaintiff said she had a cortisone injection to her left shoulder in March 2019. She said this assisted her but for only about a week, after which the pain returned. She said she underwent another cortisone injection in July 2019, which again helped, but for only a short window of time, whereupon her pain returned.
30 The plaintiff said that some pain in her right shoulder had returned and her general practitioner has suggested that was due to overuse because she is relying more on it because of the pain in the left.
31 The plaintiff described difficulties driving for long periods because having her hands on the steering wheel results in significant additional pain in her shoulder after about 5 to 10 minutes of driving. She said driving from her home in Montmorency to Springvale was difficult because she needed to drive for an hour each way and this caused severe pain especially after work when driving home. She said, however, that the recent move to the Coburg store, which is much closer to her home, has made things a bit better but that driving to and from work still triggers pain in her left shoulder.
32 The plaintiff said the pain experienced from the neck into to her left shoulder and into the front and back are the same. She said the pain is always present and the level of its intensity varies. She described experiencing pins and needles in her left arm from time to time.
33 The plaintiff described continuing difficulties with sleeping and of waking up perhaps up to three times a night. She said that sometimes when she wakes she is unable to return to sleep. Consequently, she is fatigued of a morning. Upon waking of a morning she takes Panadol and Nurofen.
34 The plaintiff described an ability to undertake light shopping, although she tries to favour her right side and keep heavy loads away from her left shoulder. She said that grocery shopping is the most arduous activity she undertakes.
35 The plaintiff said she purchased a waist-height clothesline to avoid the need to hang clothes on the line outside that required the raising of her arm.
36 The plaintiff described the difficulties she has when showering due to pain when trying to lift her left arm above shoulder height and consequently, the task of washing her hair is particularly troublesome and, as a result, she now only does so once a week. She said she no longer showers every day, and when she does wash her hair, she needs to sit on the floor of the shower and rest her left arm on her knee in order to support it.
37 On self-assessment the plaintiff described the level of left shoulder pain as 4 to 5 out of 10 and sometimes rising to 8 out of 10 if she undertakes any aggravating activity. She said she is always in pain.
38 The plaintiff said she wants to start a family soon but is scared that because of the pain in her left shoulder, she will have difficulty holding a baby and this causes her a good deal of distress.
39 In January this year the plaintiff had a fall and fractured her right foot. She was required to wear a boot on her left leg and foot for approximately six months. She had about a week and a half off work but was able to return.
40 The plaintiff described having experienced “occasional back pain”. She said the back pain does not occur frequently and usually settles. She said that she just tries to rest when she experiences pain.
41 Since swearing her first affidavit, the plaintiff was shown some clinical notes from “Brunswick Betta Health” and “Reynalla Medical Centre” in the period 2011 to 2012, which indicated that she had a previous complaint of left shoulder pain and underwent a cortisone injection. The plaintiff said that when she swore her first affidavit she had forgotten about that previous episode of left shoulder pain, but after seeing the record, she was reminded of it. She said that each episode of the pain she experienced at that time and the symptoms that accompanied them were short lived and resolved. She said the pain experienced in the past certainly did not affect her ability to work or to complete other activities.
Medical evidence
42 The plaintiff tendered the following medical evidence:
Treating reports
· Ms Nicole Hopkinson, undated[3]
[3]Exhibit P2, PCB 15-19
· Dr Clayton Thomas, dated 20 February 2018[4]
[4]Exhibit P3, PCB 23-26
· Mr Douglas Li, dated 19 June 2018[5]
· Dr David Vivian, dated 21 November 2019.[6]
[5]Exhibit P4, PCB 27-29
[6]Exhibit P5, PCB 30-37
The Plaintiff’s medico-legal reports:
· Dr Jennifer Flynn, dated 24 May 2019 and 16 August 2019[7]
· Various radiology and investigation reports.[8]
[7]Exhibit P6, PCB 38-51
[8]Exhibit P7, PCB 52-59
43 The defendant relied on the following medico-legal reports:
· Mr Rodney Simm, dated 20 September 2018 and 7 August 2019
· Medical records obtained from the plaintiff’s treating physicians at the:
§ Betta Health Brunswick Medical Centre;
§ Reynalla Medical Centre.
44 Ms Nicole Hopkinson is a physiotherapist, whose report noted that the plaintiff had last attended for physiotherapy at the Mill Park Physiotherapy Clinic on 20 September 2016. Therefore, her comments were not current, nor, indeed, as she expressed in the body of her report, intended to do otherwise than detail matters based on the plaintiff’s final clinical assessment on 20 September 2016.
45 There was no report from the plaintiff’s treating general practitioner. The plaintiff sought to produce an affidavit addressing some difficulties that had been encountered in obtaining material from Dr Sabir but the tender of the affidavit was not pressed, because of a concession by the defendant’s counsel that no point would be raised about the absence of an opinion from the plaintiff’s general practitioner.
46 Dr Thomas specialises in rehabilitation and pain medicine at the Melbourne Pain Group. In a report dated 20 February 2018, he wrote of his clinical involvement with the plaintiff that commenced with an initial assessment on 18 November 2016. He referred to her background in Iran. He referred to a previous marriage and subsequent divorce.
47 Dr Thomas gave a history of the plaintiff’s work and how it was that by December 2015, her pain had become so pronounced and problematic that she ceased work.
48 Dr Thomas reported on the plaintiff’s ultrasound and MRI scan and of her referral to Mr Douglas Li, orthopaedic shoulder surgeon, who had noted that despite injections to the shoulder, the plaintiff had only experienced limited improvement.
49 Dr Thomas recorded that on 18 November 2016, the plaintiff had reported ongoing pain in the left shoulder girdle. She had described experiencing an inability to sleep on the left side. She had described the pain felt over the whole of the left shoulder girdle being aggravated by her use of the left upper limb.
50 The plaintiff described pain that would at times travel all the way down to the left hand and that she would have difficulty using the left hand and at times it would go to sleep. She had no symptoms of complex regional pain syndrome.
51 Dr Thomas recounted the medication the plaintiff took, which at that time was Tramadol and Celebrex, with Celebrex being taken more frequently than Tramadol.
52 Dr Thomas did not have imaging available but he noted the MRI report of March 2016 suggested adhesive capsulitis based on the rotator interval but he noted that the rotator cuff itself was normal.
53 Dr Thomas’ impression was one of a Chronic Pain Syndrome.[9] He did not find evidence of any residual adhesive capsulitis, frozen shoulder or anything of the sort, and he suggested she commence Allegron 10 milligram at night, increasing each fortnight up to 30 milligram if tolerable, to test if this would improve her quality of sleep and reduce her pain involving the left shoulder girdle.
[9]Exhibit P3, PCB 24
54 Dr Thomas referred the plaintiff to Dorset Rehabilitation Centre for consideration of a multidisciplinary pain management and rehabilitation program.
55 Dr Thomas reviewed the plaintiff on 4 January 2017,[10] at which time she had reported taking Allegron 30 milligrams at night time to assist with sleep but not her pain, and that she had also gained about 7 kilograms of weight. It was suggested she cut back on Allegron from 30 milligrams to 20 milligrams and she trial Topiramate as a possible substitute for Allegron.
[10]Exhibit P3, PCB 24
56 Dr Thomas reviewed the plaintiff again on 17 February 2017,[11] at which time she was working as an Uber driver. The pain was now fairly diffuse in her left shoulder girdle and upper limb and she had some stiffness of her neck that appeared to be related to the muscle around her shoulder girdle. She had not obtained any benefit from the Topiramate 50 milligram at night time and she trialled Gabapentin, starting with a 300-milligram dosage and increasing to 600 milligram two weeks later.
[11]Exhibit P3, PCB 25
57 Dr Thomas said that he last saw the plaintiff on 5 May 2017, at which time he had understood the Gabapentin had been helpful. The plaintiff had reported an improvement in her sleep, as well and the quality of pain, but she still had a high degree of sensitivity and irritability around the left shoulder girdle.
58 Dr Thomas diagnosed a Chronic Pain Syndrome. He found no evidence of residual adhesive capsulitis, frozen shoulder or the like.
59 Dr Thomas accepted that the plaintiff’s problems came on while at work and that her condition was materially contributed to by her injury.
60 Dr Douglas Li, in a report dated 19 June 2018, noted that the plaintiff had been referred to him by her general practitioner for an opinion about a left shoulder injury and that she attended for an initial consultation on 22 March 2016 and was subsequently reviewed on 5 May 2016, 15 August 2016 and 7 November 2016.
61 Dr Li noted that at his initial consultation on 22 March 2016,[12] the plaintiff had presented as a fit and healthy twenty-nine-year-old right hand dominant woman who had left shoulder pain and stiffness. She had worked as a picker and packer. She had reported left shoulder pain on 22 September 2015 following repeated heavy lifting of metal trays and pushing trolleys that were laden with goods. She said she had pain in her left shoulder and difficulties with lifting and reaching. She described that lying on her left side was painful and she was woken by pain. Dr Li described a steroid injection bringing only minimal relief. He said there was no observable wasting or deformity to the left shoulder but there was mild swelling over the acromioclavicular joint which was slightly tender. The rotator cuff was of satisfactory strength, as was biceps. An MRI scan of the left shoulder demonstrated rotator interval synovitis consistent with capsulitis but there was no tear of the rotator cuff or the labrum nor biceps.
[12]Exhibit P4, PCB 27
62 Dr Li said the plaintiff had pain and stiffness of the left shoulder and she had clinical and MRI findings consistent with capsulitis. He said he was hopeful that the capsular distension would improve motion and the steroid component would relieve inflammatory pain.
63 The plaintiff was reviewed on 5 May 2016, by which time her left shoulder hydrodilatation had relieved her pain for four weeks but the pain had returned. She required regular Celebrex, which gave her good short-term relief from pain.
64 Dr Li next reviewed the plaintiff on 15 August 2016, at which time she had recounted having ongoing left shoulder pain.
65 Dr Li next reviewed the plaintiff on 7 November 2016[13] and although she had by then had a left glenohumeral joint steroid injection, the pain had returned. She had a near full range of motion, and Dr Li did not recommend surgery. He thought exercise and physiotherapy would be the mainstays for the plaintiff.
[13]Exhibit P4, PCB 28
66 Dr Li diagnosed left shoulder adhesive capsulitis. He thought the prognosis for the plaintiff was good. He said adhesive capsulitis of the shoulder would ordinarily spontaneously resolve over a period of twelve to eighteen months following its onset. He described adhesive capsulitis as having a possibility of recurring years after its initial onset. He said there was no underlying shoulder pathology to cause ongoing pain and stiffness.
67 Mr David Vivian specialises in musculoskeletal medicine. He examined the plaintiff for the purposes of an independent medical examination.[14] He said he had been provided with a letter written by Dr Catherine Stark, neurologist, dated 10 February 2014 in the context that the plaintiff had been troubled by pain in the wrists and hands for approximately a year, with pain being prominent at night time and when working with her hands, as well as an ache in the wrists that radiated up to the arms to the shoulders and was associated with numbness and paraesthesia through the whole hand. She also experienced numbness and paraesthesia to the soles of her feet but without pain when walking. He wrote that the plaintiff had described headaches which had been present over the previous few years and that had gradually worsened and were always right sided and accompanied by severe sharp pain and associated nausea. She had marked phonophobia and photophobia. Her headaches were, at that stage, occurring daily but a CT scan of the brain was normal. Dr Stark diagnosed hand symptoms consistent with carpal tunnel syndrome and possibly a neuropathy. Nerve conduction studies were undertaken. Dr Stark thought that the headaches bore the hallmarks of migraines and an MRI scan was arranged to exclude avascular lesion.
[14]Exhibit P5, PCB 31
68 There was a review conducted of the plaintiff on 12 January 2015. Professor Donovan, neurologist, wrote that nerve conduction studies had been normal and the paraesthesia and headaches had settled to some degree.
69 Dr Vivian took a history of the plaintiff’s work injury and its onset. He referred to the opinion of Mr Douglas Li, who had made findings consistent with a diagnosis of shoulder capsulitis. He referred to the plaintiff’s work as an Uber driver in 2017 and her work in the flooring company. He referred to Dr Thomas and his diagnosis of a Chronic Pain Syndrome.
70 Dr Vivian reported the plaintiff’s pain as very bad and of her use of Voltaren cream and Tramadol (100 milligrams to assist but side-effects had included dizziness and headaches and that when her pain was particularly bad she took about one or two Targin a week).
71 Dr Vivian said the plaintiff’s sleep was “variable” and she wakes three to four times a week with pain and then takes medications.
72 Dr Vivian reported that the plaintiff’s complaints related to the neck and shoulder girdle pain, with the pain extending down through the neck to the left scapula and across the shoulders of the shoulder tip and just into the lateral aspect of the left arm. The pain concentrates perhaps at its worst in the suprascapular region, including near the cervicothoracic area. She described the pain as a burning sensation.[15]
[15]Exhibit P5, PCB 32
73 The plaintiff said that her headaches had worsened over the past few years. She might suffer two a month that she would classify as severe. The headaches spread from the occiput into the left frontal region and behind both eyes. They were associated with nausea, vomiting, photophobia and phonophobia, and can last up to two days.
74 Dr Vivian commented on the radiological investigations that had been undertaken.[16] There was a left shoulder ultrasound on 7 December 2015 that was reported as showing a supraspinatus tendinopathy (mild) with a degree of subacromial thickening. X-rays of the left shoulder on 7 December 2015 proved normal. The plaintiff had an ultrasound-guided injection into the bursa on 17 December 2015. An MRI scan of the left shoulder and the AC joint on 19 March 2016 reported mild subacromial bursitis with oedema in the rotator cuff interval consistent with adhesive capsulitis. X-rays of the thoracic and lumbar spine on 18 February 2017 were normal.
[16]Exhibit P5, PCB 34
75 Dr Vivian said there were no features on examination suggestive of abnormal illness behaviour and there was no over reactive response to any part of the examination conducted.
76 Dr Vivian considered the initial shoulder girdle pain was likely to have been derived from one or more of her left shoulder structures such as the subacromial bursa; however, a cervical referred pain origin could not be discounted. He said the pain now was predominantly cervicothoracic pain rather than shoulder tip pain and this is against the glenohumeral pathology being the prime musculoskeletal source of the plaintiff’s pain.[17]
[17]Exhibit P5, PCB 34
77 Dr Vivian thought the cervicogenic pain the plaintiff suffered might derive from a specific structure such as a discal facet joint.[18]
[18]Exhibit P5, PCB 34
78 Dr Vivian said the plaintiff pain presented with some features of chronic nociceptive pain but also substantial features consistent with nociplastic pain. He considered that she still had an injury to a cervical structure that might include disc injury or facet joint injury, and the pain sensation processes had been a substantial factor in the persistence of the plaintiff’s pain.[19]
[19]Exhibit P5, PCB 34
79 As to the relationship between the plaintiff’s condition and her employment, Dr Vivian wrote that the plaintiff had developed pain in left shoulder girdle and neck pain when working in a job that was physically taxing and lacking in ergonomic care. He reported that, in his opinion, had she had not done her job, the odds of her developing the extent of her symptoms would have been reduced but she did have a previous history that included neurological symptoms and some degree of pain spreading up the arms towards the neck but which had, nonetheless, improved over time. He thought this suggested a pre-existing pain abnormality that had been a factor in the overall syndrome with which the plaintiff presents.
80 Dr Jennifer Flynn is an orthopaedic surgeon who provided a report to the plaintiff’s solicitors dated 24 May 2019. She recorded the relevant medical history obtained and that had been supplied to her.
81 Dr Flynn[20] said the plaintiff described her current status as one in which she experienced “… burning pain of the left shoulder extending to the left trapezius muscle in the lateral aspect of the left arm”. She also described “a feeling of ‘numbness’ of the shoulder girdle and advised that at times pain is severe”. She told Dr Flynn that “the shoulder in general has improved since the onset of symptoms and that she previously experienced significant difficulty with lifting and holding though this has improved. She described night pain waking her from sleep.”
[20]Exhibit P6, PCB 41
82 Dr Flynn said that although the plaintiff experienced pain, she was independent in all activities of daily living. She however encountered difficulty showering, dressing and washing and drying her hair. She had difficulty hanging out washing. She could drive, although she experienced pain of the left shoulder when doing so for long distances. She had difficulty with mopping, vacuuming, cooking and cleaning, and received help from her husband with these activities. She said she had difficulty with the use of a handrail and getting up from the ground if the left upper limb was required to bear weight. She did not garden at home or undertake home maintenance. She dressed independently, though sometimes required assistance of her husband. She enjoyed attending the gym but could no longer do so. She took pride previously in a clean house and could no longer maintain it to the exacting standards she had before. She said she avoided social activity and experienced less enjoyment of social activities as a result of her left shoulder pain.
83 Dr Flynn diagnosed:
· left shoulder capsulitis
· left supraspinatus tendinopathy
· left shoulder bursitis and impingement
· left shoulder pain on movement restriction.
84 Dr Flynn assessed the plaintiff’s prognosis as “guarded”[21] and that she would likely continue “… to experience pain and functional limitation of the left shoulder given the duration of ongoing symptoms and failure to respond to treatment measures to date”.
[21]Exhibit P6, PCB 43
85 In a further report dated 16 August 2019,[22] Dr Flynn had regard to the records from the Reynella Medical Centre and the Betta Health Clinic Brunswick. Dr Flynn noticed that the documents outlined an episode of mild left subacromial bursitis in December 2011 that was responsive to a corticosteroid injection. She noted documentation of a further flare up of left shoulder pain in November 2012 but it did not appear there were ongoing symptoms and, moreover, no treatment was required based on the available information.
[22]Exhibit P6, PCB 49
86 Dr Flynn concluded that the documentation did not cause her to alter the opinions expressed in her initial report. Specifically, she said she did not consider the previous episodes of mild left shoulder pain in 2011 and 2012 “significant or related to the condition of the shoulder in 2015 or currently. I consider that the employment-related left shoulder condition in 2015 was unrelated to the previous mild episode of left shoulder bursitis in 2011.”
87 Mr Rodney Simm is an orthopaedic surgeon who provided two medico-legal reports at the request of the defendant’s solicitors, the first of which is dated 20 September 2018. Mr Simm had to hand the plaintiff’s affidavit sworn 6 June 2008, together with the medical reports of Dr Thomas and Mr Li, together with radiological reports of the left shoulder ultrasound of 7 December 2015, the left shoulder x-ray dated 7 December 2015, an x-ray of the lumbar spine dated 8 December 2015, an MRI scan of the left shoulder and AC joint dated 18 May 2016, an x-ray of the thoracic and lumbar spine dated 16 February 2017 and an MRI scan of the lumbar spine dated 27 June 2017.
88 Mr Simm noted that the plaintiff’s symptoms had not changed over the last year or so. He said he was unable to establish the diagnosis of a physical condition to explain the clinical course of the claimed left shoulder injury. He noted that Mr Li, who saw the plaintiff in March 2016, had not recorded clinical signs of impingement or rotator cuff dysfunction. Mr Simm considered that the plaintiff’s clinical course was not typical of capsulitis, which he said was usually associated with quite marked reduction in glenohumeral rotation, particularly external rotation. Mr Simm pointed out that when the plaintiff was subsequently examined by Dr Thomas in November 2016, she had “a full range of left shoulder movement and, in particular, normal external rotation”. He concluded that there were no clinical signs of residual adhesive capsulitis, the absence of which he understood formed the basis for the diagnosis by Dr Thomas of a Chronic Pain Syndrome.
89 Mr Simm did not believe the plaintiff presented with clinical signs of capsulitis, subacromial impingement or rotator cuff dysfunction.
90 Mr Simm thought the plaintiff’s present clinical presentation of inhibited movement due to shoulder pain was not typical of an identifiable physical condition but was more consistent with an ongoing Chronic Regional Pain Syndrome, which was initiated by the shoulder pain she experienced in the workplace.
91 In a subsequent report dated 7 August 2019, Mr Simm noted that he had been provided with the relevant clinical notes from the two medical centres, as well as the reports of Dr Flynn, and radiology.
92 In his second report,[23] Mr Simm wrote that the plaintiff’s condition “has become worse since I last saw her. There has been no improvement in her left shoulder and four months ago she developed right shoulder pain, which she attributed to using her right arm for most activities because of the left shoulder pain.” He noted that some time ago her general practitioner had arranged for her to have a cortisone injection into her left shoulder which provided some limited benefit but only for a short number of days.
[23]Exhibit D1, DCB 9 and DCB 11
93 Mr Simm reported that the plaintiff’s symptoms were of constant pain in her left shoulder which rises to 10 out of 10 on the visual pain scale. The pain occurs from the left side of the neck, across the top shoulder, into the scapula and into the deltoid region of the shoulder, but not down into her arm. The extreme nature of her pain was sufficient to cause her to awake in tears if she lies on the left side in bed.[24]
[24]Exhibit D1, DCB 11
94 Mr Simm said that the plaintiff was able to reach up to the back with both hands to fix her hair but she could not have her arms elevated for extended periods and she needed the assistance of her husband when washing her hair and in holding the hairdryer. She could not reach fully overhead with her left hand and she could not reach fully up behind her back. She could carry about 2 kilograms in her left hand but only for a short period of time.[25]
[25]Exhibit D1, DCB 12
95 Mr Simm wrote that, so far the left shoulder was concerned, the test for subacromial impingement and supraspinatus function did not reveal evidence of underlying pathology and he thought it a matter worthy of note that when she was examined by Dr Thomas in November 2016, she had a full range of left shoulder movement. The range of active movement on examination with the elbow extended was, at that point in time, better than it was when the plaintiff had been examined in September 2015.
96 Mr Simm noted that the plaintiff understood that the pain she reported of 10 out of 10 on a visual pain scale qualified as “excruciating pain which prevented activity”. Mr Simm did not think such severe pain could be explained on the basis of known physical factors.[26]
[26]Exhibit D1, DCB 14
97 Mr Simm thought the plaintiff’s diagnosis was a Chronic Pain Syndrome in accordance with opinion by Dr Thomas; however, Mr Simm said the plaintiff may be suffering from an undiagnosed physical condition of the left shoulder that was contributing to her chronic pain response.
98 Mr Simm went on to say that the diagnosis of a Chronic Pain Syndrome indicated a functional component and that the degree of the plaintiff’s pain and disability could not be explained on the basis of known physical factors, and presumably, therefore, related to non-organic and/or psychological factors.
Analysis of the medicine
99 I do not accept it would be a sound outcome to conclude that the opinion expressed by Dr Thomas that the plaintiff suffers a Chronic Pain Syndrome must exclude a finding that the plaintiff’s pain and restricted movement is non-organic. I accept that Mr Simm, in his first report, adopted the opinion that there was a substantial functional component to the plaintiff but that his opinion was moderated in a short but nonetheless significant sentence in his second report in which he discussed the plaintiff’s restricted forward elevation and abduction on the left shoulder that he thought would appear to relate to non-specific shoulder pain. He went on and added the following:
“There may be an undiagnosed physical condition of the left shoulder contributing to her chronic pain response.”
100 Mr Simm did not exclude an organic functional basis for the onset of a pain condition. Even taken at its highest, and the plaintiff’s organic condition not being the only contributor, I am more than satisfied that there is a physical basis for the plaintiff’s presentation with pain and limitations and it has been adequately disentangled from any general pain syndrome or condition. In reaching this conclusion, I have taken into consideration that the plaintiff is treated with, and is responsive to, opioids and other medicinal treatments, including cortisone injections. These treatments by doctors and the relief identified by the plaintiff from them, even if only marginal and transitory, are indicative of an organic condition productive of pain and limitation in function. The plaintiff’s presentation and limited function brings with it the consequences which I have already addressed, and to the extent, therefore, that it might be considered necessary to have disentangled the same, I am satisfied the plaintiff has done so.
101 I am satisfied that the plaintiff has established on the balance of probabilities an organic physical component. It is a finding that I have arrived at by reason of preferring the opinion and diagnosis of Dr Flynn and on a full consideration, that of Mr Simm’s second report.
Analysis of the Plaintiff’s evidence
102 I have considered the submissions of Mr Brett for the plaintiff and Mr Saunders for the defendant. I have read the transcript of the plaintiff’s evidence and I have read the medical reports and the radiological findings relied on by the parties.
103 I am satisfied that the plaintiff’s pain and suffering consequences meet the statutory test.
104 I accept the plaintiff’s evidence that she suffers a level of daily pain which can vary in intensity. I do not think the evidence by the plaintiff that she never experiences pain (assessed on a numerical scale) of less than 4 out of 10 should be taken as an absolute. On other occasions she has reported pain by way of spike in the order of 8 out of 10 if she engages in actions that cause an aggravation. She has adopted 10 out of 10, that being excruciating pain, according to Mr Simm. The capacity of an individual to subjectively identify their pain according to a numerical scale and to do so on a reliable and consistent basis when pain is chronic, is risky. It is sufficient for me to state that an ongoing and persistent level of pain within the range the plaintiff has testified to, and that I accept, is more than moderate pain.
105 I am satisfied that the plaintiff’s pain interferes with her sleep and I am satisfied as well that the plaintiff has endeavoured to test various medications with a view to finding the right mix that both obviates her pain and assists with her otherwise disruptive sleep.
106 I am satisfied that the plaintiff is reliant on the use of medication to obtain pain relief. I am satisfied that it is counterintuitive to the defendant’s submissions of the medical evidence supporting a Chronic Pain Syndrome and not an organic basis for her pain and restrictions, that she is being prescribed opioid medications for the relief of pain and, moreover, is continuing to receive cortisone injections for her shoulder pain and indeed, has resorted to an injection relatively recently.
107 The defendant urged me to bear in mind the prescription contained in the dicta of the Court of Appeal in Dwyer v Calco Timbers Pty Ltd (No 2).[27] I have had regard to it. The authority is of assistance when considering consequences from injury and the relevance in bearing in mind that the seriousness when measured by reference to those things which have been lost in consequence of injury can sometimes be adjudged, as well by reference to those things that have been retained or reduced. Such a measure by way of comparison, so Mr Saunders submitted, may then lead to a conclusion that much has been retained by the plaintiff. I do not agree that is so in this instance. In any event, the decision in Calco[28] should not be read and understood to constitute a ready reckoner by which a totting up of pros and cons can lead to an arithmetic conclusion whether an injury has brought serious consequences to a plaintiff. A judgment is required to be brought to bear. Some matters are of lesser significance than others but all relevant considerations should be taken into account and synthesised to inform a judgment whether an injury is serious.
[27][2008] VSCA 260; Transcript (“T”) 29
[28]ibid
108 For example I regard the plaintiff’s relative youth and attendant ongoing chronic pain requiring medication as a matter of significance. The reliance she said she must place in her husband to assist her on occasions with matters that touch on her independence, including washing her hair, drying it and sometimes as well, helping her dress, together with the anxiety she has expressed for the future by the physical requirements of being a mother and holding a baby, are all matters that I consider as relevant and appropriate for me to have regard to in determining the overall seriousness.
109 I accept that there are some consequences that will inevitably impact an individual as a result of a work injury and that not all interferences are serious; however, I am also mindful that for some persons, what might be interferences with the everyday or the mundane may not be very impactful, but that for someone else, the little that there is to begin with but that is subsequently lost, can be profound.
110 In my judgment, the plaintiff is a person for whom such a characterisation is apt. She suffered imprisonment in Iran under a tyrannical regime whose abuse of human rights is well documented. She arrived in Australia by boat from Indonesia and was held in detention on Christmas Island for over a year. Since having obtained legal recognition of her status in Australia, she has, by all accounts, worked assiduously and has endeavoured to work consistently despite the imposition of the work injury she suffered. That the injury she suffered was in undertaking work that she one day hoped to leave behind in order to pursue a future in physical fitness, for which she was apparently skilled, this too has been taken away from her.
111 I formed a favourable impression of the plaintiff and I have accepted her evidence.
Video surveillance footage
112 The defendant relied on surveillance footage of the plaintiff arriving by car at her place of work. It was filmed from outside and through a plate glass window as the plaintiff was going about her work. There were minor interludes when she was observed in public such as walking to her parked car to retrieve an item and as well, walking along the footpath and into another store some doors away from her workplace; however, the majority of the surveillance was of the plaintiff inside her workplace. Because the footage was filmed from a distance and through large plate glass and coupled with the sun’s reflection, the footage was far from ideal; however, it was plain enough to enable me to observe that the plaintiff did not exhibit outward signs of pain or discomfort in her left shoulder and arm. Certainly I could not conclude that her presentation was consistent with her experiencing pain at the level she said she always has. The plaintiff accepted, that to the uniformed objective bystander, her outward manifestations would not lend itself to such a conclusion; however, the plaintiff said that she had taken pain medication that morning as she does each day. I was able to observe the plaintiff using both her right and left arms but bent at the elbow and gesticulating in a jabbing forward motion on occasions when in apparent conversation with one or more unidentified persons.
113 The plaintiff could also be observed at the end of the day raising her left arm in the use of a padlock to secure the front door of the work premises but it seemed to me that the action was stilted and she was helped in the action by other staff.
114 I am not satisfied that the surveillance footage has caused me to alter my opinion about the plaintiff’s honesty or that it is evidence that is contradictory to a finding of a serious injury occasioned by pain and suffering consequences.
Conclusion
115 I am satisfied that the evidence supports a conclusion that the pain and suffering consequences for the plaintiff caused by the impairment are permanent, in that it is a long-term impairment. I am satisfied that the degree to which the plaintiff suffers from the identified consequences are more than significant or marked, and in my value judgment, are consequences that are deserving of the description of being at least very considerable.
116 I will grant the plaintiff leave to commence proceedings at common law for pain and suffering damages.
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