Singh v Estia Investments Pty Ltd trading as Estia Health
[2019] VCC 356
•2 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02110
| AMARJEET SINGH | Plaintiff |
| v | |
| ESTIA INVESTMENTS PTY LTD trading as ESTIA HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2018, 19 February 2019 and 20 February 2019 | |
DATE OF JUDGMENT: | 2 April 2019 | |
CASE MAY BE CITED AS: | Singh v Estia Investments Pty Ltd trading as Estia Health | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 356 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of both pain and suffering damages and loss of earning capacity – reliance upon paragraphs (a) and (c) of the definition of serious injury – primary physical injury relied upon is to the plaintiff’s left shoulder and left upper limb – reliance upon course of employment and a particular incident – date of occurrence of specific injury probably erroneous – effect of this upon application – disentanglement of physical symptoms and consequences from those of a psychological or psychiatric nature – capacity for employment – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr G Worth | Slater and Gordon |
| For the Defendant | Mr P Hayes QC with Ms N Crowe | Russell Kennedy |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and loss of earning capacity. In so doing, she relies upon both paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act – see transcript (hereinafter referred to as “T”) 2 of 23 July 2018. The primary physical injury relied upon is to the plaintiff’s left shoulder and left upper limb – see T3 of 23 July 2018. Whilst the plaintiff writes with her right hand, essentially it is argued that her dominant arm is the left, which I accept. The injury is said to have occurred in the general course of the plaintiff’s performance of her duties as a personal care attendant employed by the defendant, and particularly in an incident on 11 September 2013. I would refer, for example, to T4 of 23 July 2018 and following pages. Whilst I appreciate that, and whilst reliance is placed upon both the course of employment and the specific incident, what occurred in relation to the causation of the injury shall hereinafter be referred to as “the accident”.
2 I should point out that this matter originally commenced on 23 July 2018 and that there were some 34 pages of transcript in relation to the hearing on that date. When the matter resumed on 19 February last, the numbering recommenced at page 1. Unless, as above, I specifically refer to the transcript as relating to what was heard on 23 July 2018 prior to adjournment, references to transcript pages relate to the hearing which recommenced on 19 February last.
3 There is no doubt but that the plaintiff’s claim was accepted and that she received payment of benefits, including the payment of medical expenses. However, a considerable dispute arose as to whether the date of 11 September 2013 was accurate and as to the effect upon the plaintiff’s application if it was not. I shall deal with that at the outset, and following my reference to the appearances and the like.
4 Mr R McGarvie QC, with Mr G Worth of counsel, appeared on behalf of the plaintiff. Mr P Hayes QC, with Ms N Crowe of counsel, appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature, including surveillance videos.
Did the specific incident of injury upon which reliance is placed occur on the date sworn to by the plaintiff (11 September 2013)? Did it occur on an earlier date, probably 28 August 2013? Did it occur at all? If it did, what is the effect of the plaintiff swearing that it occurred on a date which would appear to be incorrect?
5 At the outset, I shall deal with the issue of whether or not the specific incident of injury upon which the plaintiff relies occurred on 11 September 2013, as deposed to in her affidavit of 10 January 2017 and repeated in her oral evidence, or whether it occurred on some other, and if so what, date. I shall also discuss the effect, if any, of the making of such an error.
6 I shall also deal briefly with the issue of whether the described incident, which involved dealing with a particular person who had wet her bed and the moving of her and the remaking of the bed, occurred at all. I am quite satisfied that it did. My reasons for this will become obvious.
7 I am also quite satisfied that the incident did not occur on Wednesday, 11 September 2013, as deposed to and sworn to by the plaintiff. It seems to me highly probable that it in fact occurred on Wednesday, 28 August 2013, exactly a fortnight prior to the asserted date. Ultimately, Mr McGarvie, on behalf of the plaintiff, effectively came to these same conclusions – see T124 – 127.
8 I turn now to why I find that the particular incident occurred, but occurred on 28 August:
(i) The plaintiff completed part of an Incident Report form apparently dated 2 (or possibly 3, but most likely 2) September 2013. In any event, it was well before 11 September 2013. In it, the plaintiff described the incident as occurring when she was making the bed in Room 47. The heading at the top of the form gives the date of the incident as being 28 August 2013. The description of the incident was written by the plaintiff.
(ii) The plaintiff appears also to have filled in the name of a witness, namely Ms Marie Wood. No affidavit from Ms Wood was put in evidence by either party. If there was a dispute as to the occurrence of the incident, one might have expected that the defendant, if not the plaintiff, would have placed an appropriate affidavit before the Court or called Ms Wood as a witness.
(iii) The plaintiff only completed part of the Incident Report. The balance, and indeed the bulk of it, appears to have been completed by her manager, whose name is a little hard to read, but would appear to be “S. Dex”. This indicates that, following the accident, the plaintiff worked through her shift, but did not report it until Monday, 2 September 2013. The plaintiff had two days off, 31 August and 1 September, with a certificate from her general practitioner. No affidavit from Ms Dex was placed in evidence. If there was any contest concerning the occurrence of the accident, and bearing in mind that the title of Ms Dex is “Manager”, I would have expected the defendant to have provided an affidavit from her or called her to give evidence.
(iv) As stated, Ms Dex has written that the plaintiff had two days off with a certificate, those days being 31 August and 1 September 2013. The clinical notes and Patient Medical History of the plaintiff, as recorded by her general practitioner, Dr Edwin Vivares, reveal that on 1 September 2013 the plaintiff was complaining of pain in the neck radiating to the shoulder; she did not go to work; and there are also recorded the words “Medical Certificate”.
(v) I appreciate that, in his report of 24 April 2016, Dr Vivares refers to the plaintiff presenting with chronic left shoulder pain radiating into the back of the neck since 11 September 2013 while working in aged care. It may be that the attention focussed by the plaintiff upon this particular date emanates from that report. Whether or not that be so, in a report some five days earlier, Dr Vivares set out the history of injury. There are clear references to the plaintiff complaining of pain in the back of the neck and traversing to the left elbow on 30 August 2013 and to her taking 1 September off work due to pain in the neck radiating to the shoulder. There are further references to similar problems on 3 September and 5 September, and indeed a CT scan was apparently performed on 8 September. In this report, there is no reference to anything occurring on 11 September or to Dr Vivares seeing the plaintiff again before 9 October 2013.
(vi) In other words, the documentary evidence which is available almost overwhelmingly suggests that the accident in question did not occur on 11 September 2013, but occurred on 28 August. As stated, in that year both of those dates fell on a Wednesday.
(vii) Finally, the plaintiff’s claim was accepted and she was paid statutory benefits. These have since ceased, but nothing was placed before me to suggest that such cessation resulted from some doubt arising as to the occurrence of the incident.
9 As earlier mentioned, in his closing address, Mr McGarvie accepted that an error had been made and that the incident of injury probably occurred on 28 August – see T124–127. It is the conclusion at which I have arrived. I am satisfied that it did occur, and on 28 August 2013.
10 The next question to be determined is, if that be so, what is the effect of it in a serious injury application such as this? In my opinion, whatever effect it may have upon the reliability of the plaintiff as a witness, it is not something that is fatal to the success of such an application. To state the obvious, these applications are not the ultimate trials. This is an application to seek leave to go to trial. Such leave is sought on the basis of injury which arose in the course of employment. In his closing submissions, Mr Hayes argued that no incident occurred and that the plaintiff made this up – see T107. Given the matters to which I have referred above, I am against him in this regard. I am of the view that the incident of injury as described in the Incident Report did occur. I am also of the opinion that, if the plaintiff is in error as to the date on which it occurred, that does not mean that she is excluded from relying upon it or that her application must fail.
11 Further, in relation to the debate as to the correct date on which the admitted compensable injury occurred, ultimately it does not matter. What occurred was clearly within the course of employment, and whilst the precise date might or might not be of interest in a jury trial, it is of no consequence here.
12 The defendant also argued that the accuracy of the date was relevant to credit. I do not agree. It is not unusual for people to become confused about precise dates or events that happened years ago. In addition, in the circumstances of the present case, the issue of whether the compensable injury at work occurred on 28 August 2013 or 11 September 2013 does not impact on credit. The accident occurred in Room 47 and the events constituting it were as described by the plaintiff.
The plaintiff’s background prior to suffering the injury
13 The plaintiff is aged 52 years, she having been born in 1966. She was born in India, but lived in Fiji for almost 20 years, before migrating to this country in 1992. She was educated to Year 10 level in Fiji. She was married there and had four children. She was divorced in 2000 and has since remarried.
14 The plaintiff migrated to Australia in approximately 1992, qualifying shortly thereafter as a Personal Care Attendant. She performed such work in New South Wales, before moving to Victoria in approximately 2009. She then performed similar work here, ultimately commencing such work with the defendant in 2011. Her duties involved lifting and manoeuvring of patients, the changing of bed sheets and linen and the like.
The plaintiff as a witness
15 Whilst it is and was apparent to me that the plaintiff had made an error in relation to the date of the specific incident involving Room 47, I regard her generally as being a witness who was doing her best to give accurate and honest evidence. I note that Dr Nathan Serry, consultant psychiatrist, who saw the plaintiff at the request of her solicitors, described her as being cooperative and a reasonably clear historian. He also noted that she moved rather slowly and appeared to be in considerable discomfort. Associate Professor Graeme Thompson, general surgeon, who saw the plaintiff at the request of the defendant, described her as being cooperative, but clearly uncomfortable due to symptoms arising in the left shoulder. She seemed to me to be doing her best to be cooperative and to provide answers which she believed to be accurate.
16 Surveillance video of the plaintiff was shown. This did not seem to me to have any great damaging impact upon her credit. The plaintiff was seen to be attending a couple of garage sales in August 2017. The heaviest article which she held in her left arm was a soft toy. There was some video taken in 2017 of her walking in a shopping centre. She also drove a motor vehicle. Whilst the relevant video did not function properly, she also admitted that she has attended at a Tabaret establishment and has played the poker machines. In evidence, she referred to advice being given to her by her treating psychologist. Assuming that this is Dr Peter Saunders, reports from whom were placed in evidence, he has been scheduling reinforcing activities for her to do each week so as to try to get her to leave the house more often.
17 The bottom line is that, whilst the surveillance videos did not show the plaintiff demonstrating any marked restriction of the use of the left arm, neither did they show her engaging in any strenuous activities involving the use of it. It was admitted that there had been total surveillance of the plaintiff for 189 hours and 30 minutes. A total amount of film of 3 hours and 57 minutes was taken. Excerpts only of that film were shown. In relation to the plaintiff’s physical injuries, the best that could be said about the film which I saw is that it was what could be described as neutral. The plaintiff could drive, attend garage sales, walk in a shopping centre and, whilst it was not seen due to film problems, attend at a poker-machines venue as admitted by her. Mr McGarvie submitted that there was nothing inconsistent with the plaintiff’s alleged physical condition demonstrated in the video presentation. I agree with him. This was a large surveillance project involving a very considerable period. No demanding left shoulder activities were shown.
18 The bottom line is that I am of the opinion that the plaintiff’s credit has not been damaged. Certainly, it has not been damaged in relation to critical issues relating to her organic injury or, for that matter, generally. I accept her evidence.
The injuries
(i) The injury to the left shoulder and upper limb
19 In examining the injuries, I shall deal firstly with the left shoulder and upper limb injury and will attempt to focus on it largely in isolation, although some reference to matters of disentanglement will arise. I accept that, for many purposes, the plaintiff is left hand dominant, but was forced during her schooling to write with her right hand.
(a)The state of the plaintiff’s health and left upper limb prior to the accident
20 Prior to the accident, the plaintiff had suffered from ongoing headaches, which seemed to date back to both a motor vehicle accident and to some domestic violence which she suffered at the hands of her ex‑husband. She took Panadeine Forte in relation to these complaints. She also took some in relation to back pain, which she claims to have been related to her work duties. Further, she had taken some anti-depressant medication. However, I am satisfied that there were no prior restrictions, pain and suffering or relevant problems associated with the plaintiff’s left upper limb prior to the accident.
(b)The injury to the left shoulder and arm, its treatment, diagnosis and effect upon the plaintiff’s capacity for suitable employment
21 As stated, I am satisfied that the specific incident of injury occurred on Wednesday, 28 August 2013. The plaintiff attended upon Dr Vivares on 30 August 2013 complaining of pain starting from the back of her neck and radiating to the elbow (subsequent entries in the clinical notes make it clear that this was the left elbow). As stated, the plaintiff missed a couple of days from work. An x‑ray of the cervical spine was taken on 4 September 2013, this revealing no abnormalities. The plaintiff was also referred for a CT scan of the cervical spine, this being carried out on 5 September. Essentially the results of this were also normal, although there was slight displaced narrowing at C6-7.
22 After a brief return to work for approximately one week, increased pain caused the plaintiff to cease work again. Subsequent attempted returns in December 2013 and in 2014 were unsuccessful.
23 It would appear that the plaintiff attended at a local hospital on 16 October 2013. The report of the Djerriwarrh Health Hospital Community of that day includes a history of the plaintiff injuring herself at work when making a bed. Some adjustment to medication seems to have taken place and there is reference to left shoulder and neck pain. It is also noted that the plaintiff had been seeing her general practitioner and was on a “cocktail of medications for pain”. This report received little if any attention and, in any event, does not take matters much further, other than repeating the history of a work‑related accident.
24 On 24 October 2013, the plaintiff underwent a CT scan of the thoracic spine. This revealed mild disc degenerative changes in the upper thoracic region, but otherwise nothing that would explain the plaintiff’s symptoms.
25 On 4 November 2013, the plaintiff had a left shoulder ultrasound, the comment of the radiologist being “Subacromial bursitis”. On 14 November 2013, a combination of Celestone and Marcaine were introduced into the left subacromial bursa by way of steroid injection. Attempted returns to work failed. At about this time in late 2013, the plaintiff was being prescribed slow release Tramal tablets, in addition to Panadeine Forte.
26 During this period, the plaintiff was seeing Dr Vivares frequently. For example, the clinical notes of 11 November 2013 reveal that the plaintiff had not gone back to work due to a painful left arm and left shoulder. A subsequent entry refers to a steroid injection, adding that the plaintiff needed pain medicine. Entries in the second half of November 2013 refer to the fact that there had been no response to the steroid injection and that the plaintiff’s left shoulder was still sore. It is apparent that, on 16 December 2013, the plaintiff went to work, but with a sore left shoulder, and was unable to lift her arm. It would seem that the plaintiff then visited India, where her mother was dying. It would also seem that she made a couple of attempts at returning to work, the later of these being in the first half of 2014.
27 Subsequently, Dr Vivares referred the plaintiff to Mr Ishfaq Hussaini, orthopaedic surgeon, who saw her on 4 June 2014 and reported back to Dr Vivares on that day. Mr Hussaini reviewed the radiological material and recommended that the plaintiff have an ultrasound-guided Cortisone injection into the left AC joint. He also advised that she seek a spinal or neurological opinion in relation to her C2-3 disc. It is apparent that the plaintiff had an MRI scan of her cervical spine on 2 July 2014, this revealing reduced cervical lordosis, but no discrete disc protrusion. On 11 August 2014, the plaintiff underwent an ultrasound-guided injection into the left acromioclavicular joint. She was seen again by Mr Hussaini on 19 November 2014. He reported back to Dr Vivares that the injection had provided very little relief for the plaintiff. She had been undergoing physiotherapy and hydrotherapy, including massage and acupuncture, but was complaining of ongoing pain and stiffness of the left shoulder. On examination, that shoulder had hardly any movement. The diagnosis of Mr Hussaini was that the plaintiff appeared to have developed adhesive capsulitis and he recommended manipulation under anaesthesia and a Cortisone injection.
28 Mr Hussaini again reviewed the plaintiff on 1 July 2015. She had been seeing Dr Vivares in the meantime. It is apparent that she had a steroid injection to the left shoulder whilst in India in March 2015. In April of that year, she was still complaining of chronic pain in the left shoulder, both front and back. On 29 May 2015, she had a manipulation under anaesthetic and an intra-articular Cortisone injection, both these treatments being in relation to the left shoulder. When reviewed by Mr Hussaini on 1 July 2015, she was complaining of increased pain following those procedures. Mr Hussaini noted that she had hardly any active range of movement available and that any attempt to move the shoulder beyond that limited range was painful. The plaintiff was taking OxyContin, Panadeine Forte and Nurofen Plus, but was not improving. Mr Hussaini advised an MRI scan of the left shoulder and, if problems continued, suggested a hydrodilatation or surgery in the nature of capsular release. He also advised continuing physiotherapy and hydrotherapy.
29 Mr Hussaini reported back to Dr Vivares again on 21 October 2015. The plaintiff continued to have ongoing pain and stiffness of the left shoulder and was taking multiple medications. The pain was there all the time, radiating down the arm, and she had difficulty sleeping on the left side. There were notable restrictions of movement upon examination. Mr Hussaini also commented upon the report of an MRI scan of the left shoulder which had been carried out on 8 July 2015. This was quite a complicated report, showing a background of rotator cuff tendinosis, bursal and articular surface delamination of the supraspinatus and, amongst other things, slight fluid and thickening in the anterior recess of the shoulder compatible with a diagnosis of adhesive capsulitis. The possibility of an anterior dislocation was raised. Mr Hussaini had discussed with the plaintiff possible referral to a shoulder surgeon. Apparently, preliminary arrangements were made for such a referral, but the plaintiff could not afford the “up front” amount involved. The plaintiff has sworn that she requested approval from the insurer, but received no response.
30 Mr Hussaini provided a more up-to-date report on 29 October 2018. After giving a history of treatment and the like, he indicated that he last saw the plaintiff on 19 September 2018. He noted that she had had a CT-guided hydrodilatation of the left shoulder some 3½ months earlier. There had been little improvement. The possibility of an arthroscopic capsular release was raised. In relation to the shoulder, Mr Hussaini’s diagnosis was rotator cuff tendinosis and delamination tear of the supraspinatus of the left shoulder, along with adhesive capsulitis of the left shoulder. He stated that the plaintiff does not have the capacity for any full or part-time suitable employment. Her prognosis is guarded and depends upon the outcome of any future surgical treatment (although none seems to have been organised and there was apparently an ongoing dispute concerning medical management and payments). It would appear that the hydrodilatation procedure occurred in June 2018 upon reference from Mr Hussaini. It produced no lasting relief – see the plaintiff’s third affidavit of 12 February 2019.
31 It should be noted that, in her most recent affidavit, the plaintiff expressed the opinion that, whether or not it was funded, she would not undergo surgery because of fear and because there were no guarantees that a surgical procedure would improve what she describes as strong, constant and ongoing pain in the left arm and shoulder, with referral into her neck. She also stated that she would be unwilling to undergo invasive surgery.
32 In a report of 30 November 2017, Dr Vivares expressed the opinion that the plaintiff had a Complex Regional Pain Disorder, frozen left shoulder and rotator cuff tendinosis. He thought it unlikely that she would regain full function of her left arm and considered that she had no capacity for work generally. In a report of 4 March 2018, he commented upon possible alternative occupations, a topic to which I shall return, but it was his view that she may be able to do part-time work initially for eight hours per week. However, that would be subject to specific restrictions as a result of her physical injury.
33 On 27 March 2018, the plaintiff underwent yet another MRI scan of the left shoulder. The report of the radiologist is lengthy. It again raised the possibility of an old anterior dislocation injury, but also referred to supraspinatus tendinosis, less marked than in 2015; probable reduced capsulitis changes since the prior study; and moderate accelerated degenerative change of the humeral head cartilaginous surface.
34 In a comparatively up-to-date report of 4 October 2018, Dr Vivares stated that the plaintiff’s prognosis was guarded, as her condition had become chronic and had not significantly improved with current management. His observations appear to be directed to the left shoulder injury. He also referred to the plaintiff as having a complex regional pain syndrome for which the prognosis was guarded. In short, there had not been any significant change in her condition since his last report of 4 March 2018.
35 The only other material from Dr Vivares is a letter to Dr Michael Ong and would appear to be in the form of a possible referral. It records that the plaintiff originally presented with a chronic painful left shoulder, that there had been a referral to Mr Hussaini, and that the diagnosis was one of adhesive capsulitis. The referral seems to have been in connection with pain management, but there is no further documentary material before me in relation to it.
36 In relation to her left shoulder injury, the plaintiff has also been seen for medico-legal purposes. At the request of her solicitors, she has been seen by Associate Professor Bruce Love, orthopaedic surgeon. He first reported after seeing her on 12 September 2017. Associate Professor Love formed the opinion that the plaintiff had suffered an injury to the left shoulder resulting in severe restriction of motion and for which treatment to date had been unsuccessful. He implicated employment. His diagnosis was one of rotator cuff impingement with resultant tendonitis and a probable degree of capsulitis. He considered that surgery for rotator cuff decompression was a consideration. Associate Professor Love also thought that the plaintiff did not have the capacity for full or part-time employment. If she was to work, various restrictions in relation to the use of her left limb would apply. Associate Professor Love anticipated permanent impairment and disability with the left upper limb.
37 Associate Professor Love reported again on 2 March 2018, having re-examined the plaintiff on the previous day. He noted that the plaintiff was continuing to attend physiotherapy twice a week. His diagnosis was of rotator cuff tendonitis of the left shoulder. Associate Professor Love commented that the pattern of pain was consistent with a chronic pain syndrome, but seems to have viewed that separately from any psychological diagnosis, which, in his opinion, should be commented upon by an appropriately trained professional. He believed that there was unlikely to be any change in the symptoms in the foreseeable future. He was also of the view that the plaintiff had no capacity for full-time or part-time suitable employment as a result of the physical injuries relating to her left shoulder.
38 Associate Professor Love viewed a Recovre vocational assessment report and expressed the opinion that the plaintiff’s left shoulder condition would prevent her from engaging in the various roles which were nominated. He considered that she had no part-time work capacity as a result of her left shoulder condition. That would be so even if some restrictions were applying. In relation to the surveillance, he expressed the opinion that she appeared to show left shoulder abduction to 90 degrees, as opposed to 45 degrees in examination, which raised an issue of inconsistency. However, he does not seem to have altered his views otherwise.
39 Associate Professor Love reported for the third time on 23 May 2018. This followed an examination on 11 May. Essentially he found the plaintiff’s condition to be unchanged and the physical findings were almost identical.
40 Associate Professor Love again reviewed the plaintiff on 18 October 2018. He noted that the plaintiff had undergone hydrodilatation of the left shoulder on 1 June 2018, but she was of the view that this had been of no benefit. His assessment was that the plaintiff remains unable to work and that her prognosis for recovery was poor. Associate Professor Love could not conceive of any surgical measure which was likely to make an improvement to her function or her capacity to return to work. He emphasised that, although she wrote with her right hand, much of her physical work was performed with the left. His diagnosis was probable adhesive capsulitis of the left shoulder, adding that her prognosis for recovery was poor. He was not of the opinion that she had a capacity for work generally and was pessimistic about the possibility of a return to work in the foreseeable future. Whilst effectively conceding that it was not in his area of expertise, he did not judge her to have significant psychological effects.
41 The defendant has also had the plaintiff examined for medico-legal purposes. Associate Professor Ian McInnes, senior specialist surgeon, saw the plaintiff at the request of the defendant on 20 April 2015. He took a history of injury on a specific date, although the plaintiff incorrectly described this as being 11 September 2013. He expressed the view that the plaintiff had a degree of tendinosis and a small tear in her left supraspinatus muscle. He thought that her clinical condition was in excess of the physical evidence, being of the view that there was a degree of emotional or psychological overlay. He did not believe that she was fit to return to her pre‑injury duties and thought that surgical intervention was appropriate. He described her as having a stiff, painful left shoulder. He related her condition to the incident in question.
42 Associate Professor Graeme Thompson, general surgeon, saw the plaintiff at the request of the defendant, reporting on 5 October 2015. Clinical examination revealed significant limitation of movement of the left shoulder. Associate Professor Thompson diagnosed tendinosis affecting the supraspinatus tendon, in addition to the subscapularis and infraspinatus tendons, along with evidence of capsulitis. He observed that this had led to a painful, stiff left shoulder. He implicated employment and expressed the view that the plaintiff did not have a current work capacity. He was also of the view that this incapacity would be long-term, although also suggesting that attention to the psychological aspects of the plaintiff’s condition may assist in regaining capacity for work. Thus, he thought that there was organic pathology in the left shoulder, but psychological factors were influencing progress.
43 In a supplementary report of 14 December 2015, Associate Professor Thompson thought that the plaintiff could have the capacity to be employed as a welfare support worker or a medical receptionist. A report in relation to the plaintiff’s psychiatric condition seems to have influenced Associate Professor Thompson in his revised opinion.
44 Dr Catherine Bones, consultant occupational physician, saw the plaintiff at the request of the defendant on 4 April 2017, reporting nine days later. Dr Bones was limited in her ability to make a formal diagnosis, as she had not been provided with any imaging. She remarked that the plaintiff had chronic pain affecting her left shoulder and arm, also stating that there was a sign of secondary Chronic Regional Pain Syndrome. She had noted that there was spasm of the left trapezius muscles fanning out from the left shoulder. Because of the plaintiff’s left shoulder and arm condition, she did not have a capacity for pre‑injury duties and, based upon the presentation, Dr Bones thought it difficult to consider that the plaintiff could provide regular duties, modified or otherwise, to an employer. She regarded the prognosis as being guarded. She also referred to possible referral to a pain management specialist.
45 Dr Malcolm Brown, occupational physician, saw the plaintiff at the request of the defendant, reporting on 7 August 2017. He expressed the opinion that the plaintiff had rotator cuff pathology in the left shoulder with adhesive capsulitis. He was also aware that the plaintiff had a treating psychologist who had diagnosed a major depressive condition. Dr Brown could not exclude the possibility of surgery. He believed that the plaintiff had some difficulty with many activities of daily living due to the pathology in her shoulder. His conclusion was that she did not have a work capacity as at the time of his report, due to a quite restricted range of movement and associated pain in the left shoulder. Dr Brown thought that the outlook remained unclear.
46 Dr David Barton, consultant occupational physician, saw the plaintiff at the request of the defendant on 14 July 2017. Dr Barton thought that there was a considerable degree of illness behaviour apparent throughout the consultation. He thought that the plaintiff’s severe and disabling symptoms were not supported by any particular physical problem and referred to the fact that the arm muscles appeared to be of equal bulk. He doubted that any physical treatment was going to make any difference to the levels of reported problems. I note that Dr Barton had not been provided with any imaging, but apparently had been supplied with reports of x‑rays and the like. He stated that he did not think that there was much wrong with the plaintiff.
47 Dr Barton reported again briefly on 27 September 2017, having viewed some surveillance material and a report from Recovre, but not having seen the plaintiff again. He believed that there were significant discrepancies between the level of disability that she portrayed during the examination and the activities displayed in the surveillance. He was of the opinion that the employment positions identified in the Recovre report were within the plaintiff’s physical capabilities.
48 Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendant, originally reporting on 18 September 2017. Mr Dooley found tenderness of the left shoulder girdle in general and with restrictions in the range of movement, as well as general reduction in the power of the left upper limb. Mr Dooley thought it possible that, in the accident, the plaintiff sustained a soft tissue injury to the left shoulder, and that this could have involved some aggravation of underlying naturally occurring age-related degenerative rotator cuff disease. However, he also believed that there was a psychological reaction that was significantly influencing her ongoing symptoms. Indeed, he believed that the plaintiff’s psychological condition dominated her clinical presentation.
49 However, from a purely orthopaedic point of view, Mr Dooley was of the opinion that the plaintiff would struggle to carry out all her pre-injury duties as a personal care attendant. He believed that she had a capacity to carry out a range of light physical work and clerical duties. He thought that the plaintiff’s orthopaedic injuries had stabilised and that she was taking an excessive amount of medication.
50 Having viewed the surveillance video, Mr Dooley reported on 2 October 2017 without again seeing the plaintiff. He believed that the video showed a difference in the range of motion of her left shoulder as compared with that presented on formal examination. He thought that this extreme variation related to the fact that the plaintiff was alleging injury in compensable circumstances. From an orthopaedic viewpoint only, he believed that the plaintiff would have a physical capacity to carry out duties in relation to employment as an electronics process worker, order picker and order packer. However, she would have difficulty carrying out a lot of heavy physical activity or a lot of activity at and above shoulder level.
51 Mr Dooley reported for a third time on 22 January 2019, having re-examined the plaintiff on 17 December 2018. The plaintiff had since undergone a further MRI investigation and a hydrodilatation procedure. Essentially, Mr Dooley remained of the view that the plaintiff had sustained a soft tissue injury to her left shoulder that could have involved some aggravation of underlying degenerative rotator cuff disease. It remained his opinion that the plaintiff had suffered a psychological reaction to her injury, and that this reaction dominated her presentation. He did not believe that injections would help her or that surgery was indicated. He was not of the view that she had adhesive capsulitis of the shoulder. He believed that she had a work capacity. In his opinion, the findings noted on the recent MRI could not explain the constancy and intensity of the plaintiff’s ongoing pain. Overall, he was of the view that the plaintiff’s psychological condition dominated her clinical presentation.
52 A certificate from a Medical Panel and its Reasons for Opinion, these being dated 29 March 2018, were also placed before me. Effectively, the Panel formed the belief that the plaintiff had no intrinsic medical condition of the left shoulder or spine, and that there had been left shoulder adhesive capsulitis, surgically treated and now resolved. It was thought that the plaintiff was suffering from consequential exacerbation of a pre-existing Somatic System Disorder with predominant pain and a mild chronic Adjustment Disorder with mixed anxiety and depressed mood. Essentially, the Panel was of the view that the plaintiff presently had a current work capacity for suitable employment.
53 As is obvious from the above, there are clashing opinions in relation to the nature and duration of the plaintiff’s injury, as well as to its consequences. In relation to diagnosis, I prefer the opinions of those who have been treating the plaintiff. In a situation such as this where there are markedly clashing opinions, they seem to me to be in a preferable position. It must be of great advantage to have seen a patient on numerous occasions and over extended periods of time.
54 The plaintiff’s treating orthopaedic surgeon, Mr Hussaini, has seen her over the years since May 2014, last reviewing her on 19 September 2018. His diagnosis is of rotator cuff tendinosis and a delamination tear of the supraspinatus of the left shoulder, along with adhesive capsulitis of that shoulder. The treating general practitioner, Dr Vivares, who has seen the plaintiff many times, has also diagnosed adhesive capsulitis, as well as a Complex Regional Pain Syndrome. Associate Professor Love, whilst not treating the plaintiff, has also diagnosed adhesive capsulitis and, interestingly, Dr Brown, examining on behalf of the defendant, diagnosed rotator cuff pathology with adhesive capsulitis. In short, the diagnosis of Mr Hussaini of rotator cuff tendinosis, a delamination tear of the supraspinatus of the left shoulder and adhesive capsulitis of that shoulder, coming from an orthopaedic surgeon who has seen the plaintiff many times, is the diagnosis which I prefer and accept.
55 As earlier stated, I am satisfied that the plaintiff did not suffer from any problems associated with her dominant left upper limb prior to the accident. If any element of the injury is in the nature of an aggravation of a pre-existing condition, I am satisfied that there were no symptoms of it prior to the accident and that any pain, suffering, restrictions, incapacities and the like from which the plaintiff now suffers emanate from, and commenced at the time of, the accident.
56 I am also satisfied that the consequences and restrictions from which the plaintiff suffers are permanent within the meaning of the Act in that they will persist for the foreseeable future. As at the time of his last review, Mr Hussaini expressed the opinion that the plaintiff’s prognosis was guarded and depended on the outcome of any future surgical treatment. There is no indication that the plaintiff will undergo any surgery and, indeed, in her most recent affidavit of 12 February 2019, the plaintiff expressed the belief that she would not undergo surgery, because of her fears concerning it and the lack of a guarantee that a surgical procedure would improve her situation.
57 Dr Vivares also described the prognosis as being guarded, as the shoulder condition had become chronic. Associate Professor Love, in his most recent report, described the plaintiff’s current condition as being stable. He thought that her prognosis for recovery was poor. He was pessimistic about the possibility of the plaintiff returning to work in the foreseeable future. Dr Bones, examining on behalf of the defendant, stated that the prognosis in relation to expected duration of incapacity was guarded, pending referral to a pain management specialist, a referral which has not occurred.
58 In short, again I prefer the views of those who have seen the plaintiff many times over extended periods and have been treating her, as well as that of Associate Professor Love. I am of the opinion that the consequences of the injury are permanent within the meaning of the Act in that they will persist for the foreseeable future.
59 Pursuant to s134AB(38)(h), the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. Accordingly, in relation to the left upper limb injury, they shall not be.
60 That the plaintiff has suffered a psychological or psychiatric reaction to injury seems apparent. Indeed, in presenting her application the plaintiff also relies upon paragraph (c) of the definition. However, that is something which requires separate consideration and is to be taken into account only for the purposes of paragraph (c).
61 In his most recent report of 29 October 2018, Mr Hussaini has directed his attention, almost solely, to the plaintiff’s physical injury and the resultant symptoms and restrictions. He does make what is almost a passing reference to the fact that the plaintiff has been suffering from pain, distress and anxiety due to ongoing stiffness of her left shoulder, but otherwise his attention is directed almost entirely to the organic injury and its consequences. As is apparent, I accept his opinions in those regards.
62 The treating general practitioner, Dr Vivares, has attempted to distinguish between the physical injury and the plaintiff’s mental condition. For example, in Dr Vivares’ report of 4 March 2018, he makes the observation that the plaintiff’s physical injury and symptoms will restrict her ability to engage in the full range of pre-injury social, recreational or domestic activities and employment. Again, in his report of 24 October 2018, he deals with the injury of adhesive capsulitis separately from that of depression. He refers to the plaintiff’s left shoulder pain as having progressively worsened.
63 Similarly, Associate Professor Love has concentrated on the plaintiff’s physical or orthopaedic injury although, in his most recent report of 18 October 2018, he did make the following observation:
“I did not judge her to have significant psychological effects, but if that was thought to be important in terms of assessment, then the opinion of an appropriate professional should be obtained.”
64 It is also to be noted that Dr Nathan Serry, consultant psychiatrist, who saw the plaintiff at the request of her solicitors on 11 October 2018, specifically confined his comments as to her work capacity to the consequences of her psychological injuries only. Indeed, he thought that such injuries resulted in her not having a current capacity for work generally.
65 Dr Alan Jager, consultant psychiatrist, who examined the plaintiff at the request of the defendant and reported on 1 September 2017, similarly attempted to distinguish between any organic injury and factors such as depression. He opined that, from a psychiatric perspective, the plaintiff was unfit for all employment as at the date of his examination.
66 In summary, some of the medical examiners have been at pains to distinguish between the plaintiff’s organic injury and any psychological or psychiatric injury. In addition, some treatments and investigations have been clearly directed to organic problems and treatment options. This has enabled me to distinguish between the two and to disentangle the consequences. As stated, for the purposes of the determination in relation to the upper limb injury, the psychological or psychiatric consequences shall be left to one side.
67 I also leave to one side any consequences associated with a spinal injury. It was said at the outset by Mr McGarvie that the primary physical injury relied upon was that to the plaintiff’s left shoulder and left upper limb ― see T3 of 23 July 2018. Helpfully, Dr Vivares, Mr Hussaini and Associate Professor Love have reported in such a way as to enable a distinction to be made between the injury to the left shoulder and upper limb and any spinal injury or condition. Dr Malcolm Brown and Associate Professor Graeme Thomson, both examining on behalf of the defendant, also focussed their reports almost entirely upon the plaintiff’s left shoulder injury. The attention of Dr Barton and Mr Dooley was also directed almost entirely to the plaintiff’s left upper limb, whilst the Medical Panel found, inter alia, that there was no intrinsic medical condition of the thoracic and cervical spine, or the neck (making a similar finding in relation to the left shoulder).
68 In short, not a great deal of attention has been paid to the spinal condition and the available material enables me to make a clear distinction between it and the consequences of the injury to the left upper limb. In any event, as with the psychological or psychiatric consequences, any consequences that do exist shall be put to one side for the purposes of my findings in relation to the left shoulder and arm.
(ii) Other developments since the injury to the left upper limb
69 Since ceasing work with the defendant in May 2014, it is apparent that the plaintiff made a further trip to India in February/March 2015. Some confusion exists as to the number of trips to India which the plaintiff made during the relevant period. It is evident from the extracts from her passport, which were placed in evidence, that she went to India between 19 February 2014 and 11 March of that year when her mother was unwell. She went again between 4 April 2014 and 11 May 2014, which may have concerned the death of her mother. There was another trip between 10 February 2015 and 9 March 2015, the purpose of which is unclear. It was put to the plaintiff that she had made four trips in two years – see, for example, T58. However, the extract from her passport would indicate that there were only three trips, and that one of these was between 10 February 2015 and 9 March 2015. The reason for that is not clear.
70 There would also appear to have been a trip to the United States of America between 28 July 2015 and 2 September 2015, but there was neither cross-examination nor re-examination in relation to this. In those circumstances, it is difficult to attribute any particular significance to such a trip, assuming that it occurred.
Ruling
71 As is evident from the above, I prefer the evidence of those who have been treating the plaintiff over the years and of Associate Professor Love. I accept that the injury is one to the plaintiff’s dominant left arm, although her upbringing was such that she was taught to write with her right arm. I am satisfied that the injury, viewed in isolation, has destroyed her capacity for employment. I am of the view that, bearing in mind the organic injury to the left arm, no suitable employment exists and that this will be the situation for the foreseeable future.
72 In any event, I do not need evidence to convince me of the relevance of the plaintiff’s age of 52 years. Politicians continually remind us of the real problems facing people trying to exercise an earning capacity in the open market when over 50 years of age and even when perfectly healthy. “Age discrimination” is now an accepted term in our everyday workplace discourse and applies in this case. It is probably of even greater relevance in situations such as the present which involve essentially unskilled workers whose employment is closely linked to physical exertion.
73 In arriving at my conclusion, I have taken into account the various matters set out above. In particular, I have had regard to the opinion of the treating orthopaedic surgeon, Mr Hussaini, in his most recent and detailed report. Put simply, he is of the view that the plaintiff does not have the capacity for any full or part-time employment or vocational training. He has seen her many times and is in a good position to assess her capacity for employment.
74 His opinion is supported by that of Associate Professor Love, also an orthopaedic surgeon, who, in his most recent report, expressed the opinion that the plaintiff has no capacity for work generally and was pessimistic about the possibility of her returning to work in the foreseeable future.
75 As earlier stated, both Mr Hussaini and Associate Professor Love have viewed the left upper limb injury in isolation. I prefer and accept these opinions and have arrived at the conclusion that the injury to the plaintiff’s left arm has rendered her totally and permanently incapacitated for employment within the meaning of the Act.
The psychological or psychiatric injury
76 Given my finding in relation to the left shoulder and arm, there is no need for me to give a specific ruling in relation to the plaintiff’s psychological or psychiatric injury. As I have pointed out, the most recent report from Dr Nathan Serry, consultant psychiatrist, has been to the effect that, on the basis of the plaintiff’s current presentation and her psychological injuries alone, she does not have a current capacity for pre-injury work or for work generally. Her future work prospects appear to have been compromised. Dr Alan Jager, examining on behalf of the defendant on 1 September 2017, considered that the plaintiff was unfit for all employment as at that time, and that her prognosis was uncertain.
77 Bearing this in mind, it seems to me that the plaintiff would have discharged the burden of proof in relation to her reliance upon paragraph (c) in any event, and would have established a total loss of capacity for suitable employment. However, as stated, it is unnecessary for me to rule on the consideration of injuries other than that to the left upper limb.
The injury to the spine
78 The state of the very limited evidence put before me in relation to any spinal injury would not allow a finding of serious injury, whether it be based upon loss of earning capacity or pain and suffering. In any event, given the conclusion which I have reached in relation to the left upper limb, and with the psychological or psychiatric injury, there is no need for me to give a specific ruling in relation to any spinal injury, but, if there had been a necessity to make such a ruling, the plaintiff would not have discharged the burden of proof.
Pain and suffering
79 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages associated with the injury to the left upper limb, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and to various decisions of this Court.
80 In any event, the obvious impact upon the plaintiff’s everyday life as a result of the injury to her left arm is sufficient to satisfy the statutory requirements. For example, in her affidavit of 1 March 2018, she has sworn that she remains greatly impaired by reason of her physical injuries. She has referred to constant pain impacting upon social, recreational and domestic activities and interfering with her sleep. She is generally woken by pain every night. She has various problems with household chores. She is taking up to eight Panadeine Forte tablets a day and has also been prescribed Endone, which she takes when the pain is particularly severe. She also uses a Fentanyl patch. In her most recent affidavit of 12 February 2019, the plaintiff has sworn as to how her sleep remains interrupted by pain generally every night.
81 The consequences of the physical injury, and leaving to one side those of a psychological or psychiatric nature, could be fairly described as being more than significant or marked and as being at least very considerable. Again, I would refer to the three affidavits of the plaintiff. Such consequences have had a very substantial adverse impact upon her wellbeing and upon her day to day activities.
Conclusion
82 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
83 I shall hear the parties as to any ancillary orders that are required.
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