Skewes v Brengil Pty Ltd
[2012] VCC 1326
•21 September 2012
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06278
| GWENDA MIRIAM SKEWES | Plaintiff |
| v | |
| BRENGIL PY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 27 August 2012 | |
DATE OF JUDGMENT: | 21 September 2012 | |
CASE MAY BE CITED AS: | Skewes v Brengil Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1326 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – injury to the left shoulder – pain and suffering only
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K Mueller | Ryan Carlisle Thomas |
| For the Defendant | Mr P Jens with Mr I Gourlay | Herbert Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 27 May 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the left shoulder. The injury is:
“(a) Tendonitis in the left supraspinatus tendon;
(b) Complete avulsion of the right biceps long head tendon;
(c)Sub-acromial impingement process with a very tight coraco-acrominal ligament;
(d) Osteoarthritis in the right acromio-clavicular joint.”
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff, dated 26 August 2011 and 31 July 2012, and one sworn by her husband, Michael Skewes, dated 31 July 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant.[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of her impairment to the left shoulder in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6]Ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]s134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s Evidence
15 In her affidavits sworn on 26 August 2011 and 31 July 2012, the plaintiff deposed that:
· In early 2001, she commenced work for the defendant as the office manager and working on the shop floor. The defendant sold commercial furniture. Her duties included putting brochures, price lists and other material received from suppliers into folders. When customers came into the shop she would fetch the folders and show the brochures and materials to the customers.
· The folders were placed on a high shelf and she had to reach on tip toes to get the folders off the shelf.
· On 24 May 2007, she went to remove a folder when three folders fell on her. She was hit on the left hand and wrenched her left arm and shoulder.
· She continued to work, but was suffering from shoulder pain. She thought the pain and discomfit would go away.
· Two or three days later, she had pain at home and went to see a physiotherapist. Her left shoulder did not respond to physiotherapy and on 18 July 2007, she attended Dr Paul Martin, general practitioner. The shoulder pain became worse and she was referred to an orthopaedic surgeon, Mr David Mitchell, who administered an injection, which was unsuccessful, and then operated on 14 November 2007. She was off work for two weeks after the operation, then returned to normal duties.
· She continued to work for the defendant until June 2008. During that time, she had significant pain and discomfort in the shoulder. She had trouble sitting at the computer for lengthy periods. Shifting chairs around the showroom and vacuuming aggravated the shoulder pain.
· After ceasing work with the defendant, she worked as a receptionist at St John’s Hospital for three months. She then commenced working for herself, as she required greater flexibility to care for her parents.
· In March 2011, she commenced part-time work at Ballarat Health Services as a switchboard operator, which mainly involves answering the phone and diverting calls. She continues to operate her own business as well.
· The pain in her left shoulder varies. She has frequent and daily niggling sensation, pain and discomfort, which is worse the more she uses her left arm. She has stiffness and restriction of movement in her left arm.
· She had physiotherapy until June 2010, when it was no longer paid for. She takes Panadeine Forte for pain relief, between two and six tablets per day.
· Prior to injuring her left shoulder, she was very dependent on her left arm because she had difficulty with everyday tasks with her right arm. She is now restricted in all activities that place any strain on her shoulders, including grocery shopping, cooking and baking, and sewing. She also has difficulty ironing, sweeping, vacuuming and making the beds. She has difficulty with personal care tasks such as dressing and washing, and drying and brushing her hair.
· She is still able to drive but after some distance both shoulders are painful. Prior to the injury, she had a knob on the steering wheel so she could steer with her left arm.
· She now has to sleep on her back and if she turns in her sleep it causes her to wake. Her sleep is interrupted most nights and she usually wakes with a sore and stiff left shoulder.
· She can no longer play with her grandchildren as much. She has become irritable, frustrated and stressed.
· In May 1991, she had surgery on her right shoulder following an injury while renovating her home. The injury left her with long-term restrictions for her right arm and shoulder. She also had surgery on her neck in November 1991 following a fall at home.
· In 1998, she was involved in two motor vehicle collisions, following which she had neck pain and tingling in her fingers.
· In October 2001, as a result of the motor vehicle accidents, she had a right thoracic outlet procedure and in February 2001, she had a left thoracic outlet procedure.
16 In his affidavit sworn on 31 July 2012, the plaintiff’s husband, Mr Michael Skewes, deposed that:
· He is the husband of the plaintiff.
· Before injuring her left arm, the plaintiff used to do the ironing and many of the household chores. Since 2007, he has mainly done the household chores.
· She avoided activities that used her right arm.
· The plaintiff can no longer play with their grandchildren and does not bake, cook or sew as much as she did previously.
· The plaintiff’s demeanour has changed and she appears gloomy and sad that she cannot do things.
· The plaintiff wakes up often and complains of being sore if she rolls onto her left side.
The Plaintiff’s Evidence in Cross-examination
17 The plaintiff was cross-examined and gave the following pertinent evidence:
· She needed to supplement her income and obtained extra work at the hospital serving meals and cleaning but could not do the jobs because of her shoulder injury.
· When caring for her parents, she had assistance from the Council, who performed the physical tasks.
· Since 2008, she walks around Lake Wendouree regularly.
· She agreed that her car was stuck in the gutter and she attempted to push it by pushing with her back, not her arms.
· In 2008, she agreed she suffered from severe headaches but was prescribed medication and now does not suffer from headaches.
· Between July 2000 and the performance of the thoracic outlets, she had ongoing pain in her arms which was very different to the pain she now experiences.
· Her husband was restricted in working because of pain he suffers as a result of a work injury suffered twenty or thirty years ago.
· She currently takes Panadol Osteo for her shoulders and her feet and receives massage treatment from her son, who is a physiotherapist.
· Now she has increased pain in her right shoulder because she uses one or other shoulder to the detriment of the other.
· She has foot problems and has developed Sjögren’s syndrome.
· She does not do much handiwork now. She started to knit a shawl but could not complete it.
· She drives around Ballarat and occasionally drives to Melbourne.
· She now lives with her daughter, who does most of the cooking.
· She agreed that in the last three years she had not seen doctors for her left or right shoulder.
· She has not played formal sport since 1991. She played cricket with her family, including her grandchildren.
· She agreed she worked extra hours if offered them on the switchboard.
· She agreed she suffered tennis elbow and still has it but said it was in the right arm, not the left. She did not recall having it in the left arm.
18 In re-examination, the plaintiff said:
· Being able to play with her grandchildren is of the utmost importance to her.
· When looking for work, she was limited to the type of work she could perform because of her shoulders.
· She now earns less than when she swore her first affidavit.
· She does not think she could work full time as she has attempted an 8-hour day and suffered very tight shoulders and headaches.
· She agreed she was a stoic person in relation to pain. She suffers painful feet every day but still walks around Lake Wendouree to maintain her fitness.
· When she last saw Mr Mitchell, he could only suggest hydrodilatation but could not guarantee it would make any difference.
19 Mr Michael Skewes, the husband of the plaintiff, gave the following pertinent evidence:
· He said his wife was not having any problems with her left arm before the work accident.
· He could not recall his wife developing tennis elbow in the left or right arm.
· He agreed she now drives a car with power steering.
· He said she worked two, three or five days a week.
· He said his wife very rarely cooks. Prior to living with his daughter, either he or one of his daughters did the cooking.
· He said after the neck fusion she was fine, she was doing all the things she used to do.
20 In re-examination, Mr Skewes said:
· Prior to 2007, his wife regularly cooked and baked for the family and friends. Last Christmas, she tried to make a Christmas cake. She became distressed because she could not make it and one of the girls had to finish it.
· He said they were a sporting family. She cannot play sport with the family as she used to in the past.
· She does not like taking medication, she prefers to push her way through it, which is frustrating at times.
· He earned $14,500.00 for the 2012 financial year.
Investigations
21 On 6 September 1999, a CT scan of the cervical spine showed:
“Normal post-operative appearances. No cause for the right C7 radiculopathy identified.”
22 On 15 December 1999, a CT scan of the cervical spine showed:
“No substantive paraspinal soft tissue abnormality is seen. There is some mild calcification dorsally in the region of the left carotid bifurcation.”
23 On 21 July 2000, an MRI scan of the cervical spine showed:
“Multilevel disc degeneration with loss of disc space height confined to C5-6. No focal disc protrusion is seen.”
24 On 21 June 2000, a cervical spine x-ray showed:
“Severe disc degenerative changes at C5-6 without significant foraminal compromise.”
25 On 6 July 2000, a regional bone scan with Spect concluded:
“No evidence of compilation related to the previous fusion procedure or any other active process involving bone or joint in the cervical spine.”
26 On 19 March 2001, a CT scan of the cervical spine showed:
“Some osteophytic narrowing at C5-6 of the foramina and this may be affecting the C6 nerve roots bilaterally.”
27 On 19 July 2007, an ultrasound of the left shoulder showed:
“Supraspinatus tendonosis involving principally the anterior fibres without tear or collection.”
28 On 11 May 2009, an ultrasound of the left shoulder showed:
“Supraspinatus tendinopathy with no identifiable tear. Probable subacromial bursitis.”
29 An x-ray of the left shoulder showed:
“Mild osteoarthritic changes in the acromioclavicular joint. Acromion is type 2 in morphology. No calcification is seen around the shoulder. Glenohumeral articulation is maintained.”
30 On 17 October 2007, and x-ray of the left shoulder showed:
“Mild superior migration of humerus. Glenohumeral and acromioclavicular articulations are maintained. No obvious calcification is seen around the shoulder joint.”
The Plaintiff’s Medical Evidence
(1) Injury in June 1998
Mr Paul Kierce
31 Mr Kierce, orthopaedic surgeon, administered a series of eight injections in the shoulder and manipulated it under anaesthetic.[10] He performed an acromioplasty of the right shoulder which appeared to improve her movement in the arm.[11] However, the pain continued.
Mr David Wallace
[10]ibid
[11]Ibid and medical report to the Transport Accident Commission of Mr P Kierce dated 3 April 2000
32 In September 1991, in a letter to Mr Kierce, Mr David Wallace, neurosurgeon, reported that he had seen the plaintiff as requested. The plaintiff had ongoing neck and right shoulder discomfort following the acromioplasty performed on the right shoulder. The plaintiff gave a history that in June 1990, she was stripping paint and hurt her shoulder. This was followed up by playing racquetball, which produced more pain in the arm, shoulder and neck.
33 Mr Wallace diagnosed an anterior cervical discectomy and fusion at C5-6 level. The plaintiff was referred to Mr K Mills for surgery.
Mr Kingsley Mills
34 In November 1991, Mr Mills, orthopaedic surgeon, performed a cervical interbody fusion and a graft was placed anteriorly at the C5-6 level after confirmation at that level radiologically. The plaintiff made a good recovery and he saw her finally on 30 February 1992.
(2) Transport Accidents – July and December 1998
Mr Paul Kierce
35 The plaintiff was referred to Mr Kierce in 1999 for treatment as a result of a motor vehicle accident (December 1998). It was his opinion that she had sustained a ligamentous injury of her cervical spine and that she had injured her right shoulder with resultant right rotator cuff syndrome in the accident. He advised her to wear a cervical collar and injected her right shoulder with steroids and local anaesthetic. He later recommended she have manipulation of her cervical spine under a general anaesthetic and injection of the right shoulder at that time. He was unaware of her receiving any treatment to her neck or shoulder at the time of the accident.
36 In a letter dated 30 May 2000 to Mr K Mills, Mr Kierce thought the plaintiff had suffered an injury to her C6-7 disc and thought she may require a further cervical discography to diagnose this.
Mr Kingsley Mills
37 In August 2000, Mr Mills reported to the Transport Accident Commission that he had seen the plaintiff in June 2000 when he was given a history that in December 1998 she was in a stationary car and was struck from behind by another car. He reported that from the time of the cervical fusion he performed in 1991 until December 1998, the plaintiff had been pain free.
38 After the accident, an MRI scan of the plaintiff’s cervical spine showed multilevel degenerative disease in the cervical spine without any secondary features of disc bulging, spinal cord or root canal stenosis. It was his view that the Pain Syndrome she had was typical of a neck strain problem, complicated by her previous history. He expected that she would obtain gradual resolution of her symptoms which may need mild analgesics and anti-inflammatories.
Mr David Wallace
39 Mr David Wallace, neurosurgeon, treated the plaintiff following a rear-end collision in July 1998. He diagnosed a post-traumatic thoracic outlet syndrome and recommended a scalenotomy on her worst affected right side. He said if surgery was successful on the right side, he would recommend she undergo surgical treatment on the left side.
40 On 12 October 2001, Mr Wallace performed an exploration of the right thoracic outlet and a successful scalenotomy.
41 On 21 December 2001, Mr Wallace performed a left thoracic exploration.
42 In February 2002, Mr Wallace reported to the plaintiff’s general practitioner that she was virtually symptom free as a result of the bilateral scalenotomies and exploration of the thoracic outlets.
Mr Charles Flynn
43 On 27 May 1999, Dr Charles Flynn, physiotherapist, reported to the Transport Accident Commission in relation to the transport accident, and said the plaintiff suffered a soft-tissue injury to the cervical spine with the right C3-4 and C4-5 apophyseal joints most affected.
Mr Peter R Scott
44 On 13 May 1999, Mr Peter R Scott, orthopaedic surgeon, reported to the Transport Accident Commission in relation to the transport accident on 10 December 1998. He said the plaintiff developed a soft-tissue injury or musculo-ligamentous strain or whiplash-type injury to the cervical spine, together with probable aggravation of underlying pre-existing discogenic disease at the C5-6 level, resulting in a recurrence of previously existing right brachial neuralgia, presumably due to a C5-6 disc lesion. He noted that she had made a good recovery from a neck injury in 1990, which required an anterior cervical fusion in November 1991.
45 Mr Scott said the plaintiff’s injury had not stabilised. He said there was evidence of cervical nerve root irritation in the right arm, in an area which had previously been injured and which had required an operation.
(3) 24 May 2007 Work Injury
Dr Paul Martin
46 In May 2009, Dr Martin, general practitioner, reported to the plaintiff’s solicitor. In July 2007, the plaintiff consulted him in respect to an injury she had suffered to her left shoulder while attempting to catch a book which fell off and elevated shelf. She was referred for a left shoulder ultrasound and was reviewed and advised to have an injection of Depo-Medrol and local anaesthetic. This was carried out and she had a good response but the pain recurred. She was referred to Mr David Mitchell for further advice and treatment. She underwent left shoulder arthroscopic decompression. She attended physiotherapy. She was unable to raise her arm greater than 90 degrees and was referred to the orthopaedic surgeon for further advice and treatment. Between November 2007 and May 2009, the plaintiff was treated and managed by Mr Mitchell.
Mr David Mitchell
47 On 14 November 2007, Mr David Mitchell, orthopaedic surgeon, performed a left shoulder arthroscopic decompression.
48 In a report to the plaintiff’s solicitor of 11 June 2009, Mr Mitchell said he performed a subacromial impingement process and an acromioplasty was undertaken. He said the ongoing problem is that the left shoulder is stiffer than the right. It aches. Internal rotation is limited but external rotation is intact. Functional problems are not insignificant. It is problematic in bed. She is unable to do up her bra and reach overhead. He said the plaintiff has residual problems of tendinopathy and possibly acromioclavicular arthritis.
Mr Gary D Grossbard
49 In March 2012, Mr Grossbard, orthopaedic surgeon, saw the plaintiff at the request of her solicitors.
50 Mr Grossbard said, as the plaintiff’s condition had not changed for more than two years, it was stable. He said the plaintiff had a permanent physical impairment. She will continue to have pain with activity, which will impact on her social and work capabilities. She would have difficulty returning to her pre-injury duties, particularly where there is a need to move furniture and undertake cleaning duties. He believed she could undertake other sedentary duties and had demonstrated an ability to do this for limited periods of time.
51 Mr Grossbard said he thought the plaintiff’s ability to return to a full time, 38-hour week is limited and unlikely to eventuate. He believed she had a work capacity in sedentary work for less than full-time hours. He said her incapacity relates to her shoulder injuries; in particular, the injury of 24 May 2007. He said the injury of 2007 has been a major contributing factor to her reduction in work capacity, on the background of previous neck surgery and an ongoing issue with the other shoulder.
Medical Records of the Plaintiff’s General Practitioner
52 The plaintiff’s clinical records from UFS Medical Centre, Ballarat, for the period June 1999 to April 2012 were produced to the Court. The clinical records disclosed that between November 2003 to April 2004, the plaintiff was treated for tennis elbow pain in the left arm on five occasions. She complained of right shoulder pain in December 2004 and March 2008, migraines in February 2005 and August 2008 and left shoulder pain in May 2009.
53 In relation to the left shoulder injury, she consulted her general practitioner on five occasions.
The Defendant’s Medical Evidence
Dr David Kotzman
54 In August 2009, Dr Kotzman, occupational physician, saw the plaintiff at the request of the defendant’s insurer. It was his opinion that the plaintiff was suffering from persistent dysfunction of the left shoulder as a consequence of a rotator cuff tendonitis which had been treated by arthroscopic subacromial decompression. It was his view the plaintiff’s injury had stabilised and the impairment was permanent.
Dr David Ho
55 In March 2010, Dr Ho, occupational health consultant, reported to the defendant’s insurer. Dr Ho confirmed the plaintiff had developed an impingement syndrome in her left shoulder after the incident at work in May 2007. It was his opinion that the plaintiff should progress to a self-managed regular exercise program to restore maximum flexibility and core strength in her left shoulder. He said she had a good range of movement in her left shoulder and good strength on resistant movements in her left shoulder.
56 He considered the plaintiff was fit for her pre-injury duties on a full-time basis. In fact she was working on her pre-injury duties full time prior to her resignation from work. He said the plaintiff’s reported residual symptoms in her left shoulder may be due to the underlining osteoarthritic changes in the acromioclavicular joint.
Mr Ian R Jones
57 Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor in December 2011 and July 2012. Mr Jones said the plaintiff suffered pain and restriction of movement in the left and right shoulders. With respect to the left shoulder, it is likely that she will continue long term to experience some aching symptoms in her shoulder with persistent limitation of movement. He accepted the injury, as described by the plaintiff, had the capacity to precipitate or aggravate a soft-tissue injury to the plaintiff’s left shoulder. He could see no connection between the left thoracic outlet procedure performed in February 2002 and her current symptoms. He thought the subject incident had the capacity to aggravate some degeneration affecting the tendons of her left shoulder. He said the plaintiff’s left shoulder condition limited her in activities which will require lifting, carrying and reaching, particularly overhead using her left arm.
58 He did not believe the permanent impairment suffered by the plaintiff related to the work injury. He believed that the stiffness in her shoulder is a reflection of the underlying condition of tendonosis or degeneration in the rotator cuff tendons, as well as the surgery undertaken. He accepted that the left shoulder condition will limit her capacity to undertake work which requires use of the left shoulder at or above shoulder height. In addition, she would be limited in terms of using the arm to lift and carry or engage in any pulling or pushing using the left arm.
59 He said the plaintiff did not have the capacity to return to her pre-injury duties, which he considered was permanent. He said the plaintiff had an incapacity for work which involves pulling, pushing or overhead use of the left arm and she was fit for work where there was no such requirement.
60 In July 2012, Mr Jones re-examined the plaintiff and said, with respect to the left shoulder, the degenerative nature of her rotator cuff tendonitis is likely to cause persisting stiffness and aching symptoms in her left shoulder with a possibility that the rotator cuff tendon could possibly give way either spontaneously or with some unaccustomed demands that the plaintiff may make on her left shoulder. He said he did not believe the plaintiff’s employment with the defendant contributed to the plaintiff’s left shoulder condition. He accepted that the plaintiff’s right and left shoulder condition impacted upon her ability to use her left and right hands at and above shoulder height and with domestic activities working with her arms in front of her.
Video Surveillance
61 I was shown no film of the plaintiff even though video surveillance of the plaintiff was referred to in the index of the Defendant’s Court Book. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
62 The plaintiff answered the questions put to her in a direct manner. She was not evasive or argumentative and made concessions. For example, she agreed that she walked around the lake despite her painful feet.
63 Her evidence was supported by her husband, Michael Skewes, who again was a most impressive witness. Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
64 Causation was not in issue. Counsel for the defendant quite properly conceded that the insurer has accepted liability for the plaintiff’s condition in terms of treatment and in those circumstances conceded that the work incident in 2007 caused the left arm injury. All medical practitioners were aware of the plaintiff’s prior history in respect to her right shoulder, the cervical discectomy performed in 1990, the decompression of the thoracic outlet on both left and right sides and the whiplash injury suffered in 2001.
65 In considering the consequences of the plaintiff’s impairments, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions; in this case, the reports of Mr Grossbard and Mr Jones. Mr Grossbard and Mr Jones accepted that the plaintiff will continue to experience aching symptoms in her left shoulder and that the limitation of movement will likely last into the future. Mr Grossbard said that the plaintiff will continue to have pain with activity, which will impact on her social and work capabilities. He believed she could undertake sedentary duties. He thought her ability to return to a 38-hour week full time is limited and unlikely to eventuate. He said she had a work capacity in sedentary work for less than the full-time hours. He accepted that the injury of 2007 had been a major contributing factor to her reduction in work capacity.
66 Mr Jones agreed that the plaintiff’s left shoulder condition limited her ability to perform activities that require lifting, carrying and reaching, and in particular overhead use of her left arm. He thought the left shoulder condition would limit her capacity to undertake work that requires use of the left shoulder above shoulder height. He said she would be limited in terms of using the arm to lift and carry or engage in any pulling or pushing using the left arm. He said she did not have the capacity to return to work that requires pulling, pushing or overhead use of the left arm, which he considered was permanent.
67 The provisions of s134AB(38) of the Act provide the narrative test for determining whether a worker may make a claim for damages for pain and suffering.[12] Accordingly, I must determine whether the consequences of the plaintiff’s injury are of sufficient magnitude (more than significant or marked, and at least very considerable) to qualify as a serious injury.
[12]S134AB(38)(b)
68 The evidence of the plaintiff was that prior to her work injury, she was very dependent on her left arm. She had difficulty performing everyday tasks with her right arm and compensated by relying on her left arm and shoulder. Her evidence was supported by her husband. He said, before she injured the left shoulder, she tended to avoid activities using the right arm so as not to exacerbate the pain in the shoulder. Further, he said, since her injury to her left shoulder, she appears to be in frequent pain which depends upon usage: she suffers more pain in both shoulders. He said before the injury to her left shoulder she swept the floor, vacuumed, hung out and brought in the washing, mainly using her left arm. Now she only does those activities if no one else is around. Prior to 2007, she ironed with her left hand, now he does the ironing.
69 The plaintiff said her sleep is affected. Before the injury, she lay on her left side. Now she is forced to sleep on her back and if she turns in her sleep she wakes up. Her sleep is interrupted most nights, she wakes with a sore and stiff left shoulder. She reported the difficulties with her sleep to a number of the doctors she saw.
70 The plaintiff said the pain in her left shoulder varies. She suffers a frequent and niggling sensation and pain or discomfort. The more she uses the left arm the worse it becomes. Her husband confirmed that she suffered pain. He said her demeanour has changed. She is gloomy and sad and when she cannot do things, particularly with her grandchildren, she becomes upset.
71 The plaintiff said that being able to play with her grandchildren and young nieces and nephews was of the upmost importance to her. Before the work injury, she was able to play backyard cricket with them using her left arm. Now she is restricted in taking part in the physical activities. She can no longer lift up her young grandchildren, now she must sit down and slide them onto her lap.
72 Cooking and baking were her passions. She produced to the Court photographs of the cakes she had made. Now she rarely cooks. Until recently, her husband cooked with the assistance of their daughters. Now she and her husband live with their daughter and the cooking is performed by their daughter and son-in-law. Her husband said that she had attempted to make a Christmas cake, which she could not complete and ultimately a daughter baked the cake.
73 The plaintiff said she had sewed and knitted before the injury. She produced photographs of her handiwork. She said that since injuring her left shoulder she had attempted to knit a shawl for one of her daughters, but could not finish it. Her husband said she previously made clothes for herself, their grandchildren and nieces and nephews. Now she does very little sewing. She said now she uses the sewing machine for simple repair work.
74 In cross-examination, the plaintiff agreed she walked around Lake Wendouree on a regular basis to maintain her fitness. This was despite the fact that she had a medical problem with her feet which was painful.
75 The evidence was that the plaintiff ceased work with the defendant after the injury and sought alternative work, which she ultimately left to care for her elderly parents who were suffering from dementia. At that time, she commenced her own business of MYOB bookkeeping. She said she earned $3,200.00 net from her business for the 2011 financial year. She continues to operate the business and thought her total income from her business for the 2012 financial year was $400.00 or $500.00.
76 Her parents were placed in care and in March 2011, she commenced working part time as a switchboard operator at the Ballarat Health Services. She has attempted to increase her hours and to perform work serving meals and cleaning. She was unable to perform that work because of her injury. On occasions, she had worked an 8-hour shift in her current position, but she suffered headaches and very tight shoulders. She did not think that she could work full time, working 8-hour shifts each day. Mr Grossbard supported the plaintiff, and said her ability to resume full time work is limited and unlikely to eventuate.
77 In May 2007, the plaintiff had a particular vulnerability but was able to hold down full-time employment in a sedentary position which involved, to a degree, manual work. Now she cannot work full time, nor can she perform manual work. I accept that is a significant loss to the plaintiff. The evidence is that the plaintiff’s house was sold because the family fell behind in mortgage repayments. Her husband’s ability to work is limited because of injuries he has suffered. He earned a minimal income in the 2012 financial year. It is not unreasonable to assume that the plaintiff would have performed extra hours in her present job or obtained extra hours cleaning and serving meals if she could have undertaken the work.
78 I accept that by 2007, the plaintiff was relatively symptom-free in the right shoulder, provided that she protected it by using the left shoulder. In relation to the cervical fusion, Mr Mills confirmed that the plaintiff was symptom-free from 1991 to the time of the transport accident in December 1998. He saw her in 2000, when she was complaining of neck pain as a result of the transport accident. He expected that to resolve. The plaintiff underwent thoracic outlet procedures performed by Mr Wallace on the left and right arms. In 2002, Mr Wallace reported that the plaintiff was symptom-free. The general practitioner’s clinical records were produced to the Court. They confirm that the plaintiff’s complaints in respect to the neck and right shoulder were minimal and there were no complaints in respect to the left shoulder. Accordingly, I accept that by 2007, she was symptom-free.
79 Counsel for the defendant referred to the tennis elbow that was diagnosed by the plaintiff’s general practitioner in the left arm. The plaintiff agreed she suffered tennis elbow, but said it was in the right. The general practitioner’s records confirm that she suffered this condition from November 2003 to April 2004. His notes record it in the left. However, there is no medical evidence to link the tennis elbow with her current condition. It is a condition which the plaintiff suffered eight years ago. Accordingly, I reject the submission that it related to her current condition. I accept there is no clinical evidence to suggest the plaintiff made any complaint about her left shoulder until the work injury in 2007.
80 I accept that the plaintiff presented as a stoic witness. Her approach and attitude to her injury was an indication of her stoicism, namely, she was living with her problem. I was particularly impressed by the way her husband described her reluctance to take medication and “push her way through the pain”. In such a case, the “objective evidence of the disabling effect may be of less significance than usual”.[13]
[13]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [37]
81 Accordingly, I must take this into account in considering the plaintiff’s evidence.
82 I am satisfied that the plaintiff is no longer able to perform full-time work, nor can she perform manual work. She is limited to part-time sedentary work. In addition, she can no longer participate in physical activities with her grandchildren, nor can she lift up her young grandchildren. She cannot pursue her passions of cooking and baking, nor can she sew and knit. She cannot perform many household tasks that she previously performed with her left shoulder. Further, she now endures increasing pain from her right shoulder.
83 I am satisfied that it is fair to describe the pain and suffering consequences as being more than significant or marked and properly regarded as considerable when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
84 I am satisfied that the left shoulder injury is permanent, given the evidence from the medical witnesses.
85 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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