Stevanovska v Berkeley Challenge Pty Ltd

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-04442

BOZNA STEVANOVSKA	Plaintiff
v
BERKELEY CHALLENGE PTY LIMITED	First Defendant
(SPOTLESS SERVICES LIMITED )
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 September 2011
DATE OF JUDGMENT:	10 October 2011
CASE MAY BE CITED AS:	Stevanovska v Berkeley Challenge Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 1475

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – psychiatric impairment – pain and suffering – loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Moore SC with	John Dellios & Associates
Ms N Wolski	Pty Ltd
For the Defendants	Mr D Myers	Herbert Geer
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant on 14 December 2005 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff initially brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. Ultimately the application proceeded pursuant to clause (c), with the plaintiff claiming to have suffered a permanent severe mental or behavioural disturbance or disorder.

Outline of Section 134AB
(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii)        The impairment of the body function must be permanent;
(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv)       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(v)        Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(vi)       Section 38(g) requires questions of rehabilitation and retraining to be considered in determining whether the forty per cent loss has been established;
(vii)      Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(viii) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(ix)       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(x) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”;
(xi)       Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(xii)      I accept that a Chronic Pain Syndrome can result in an impairment under sub-s.(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd 2005 VSCA 227.
(xiii)     I have applied the principles identified by the Court of Appeal in Barwon Spinners & Ors v Podolak (2005) 14VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.

4 The plaintiff relied upon two affidavits and gave viva voce evidence. Her general practitioner, Mr Flaim, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence
5          The plaintiff is presently aged sixty one, having been born in Macedonia on 20 October 1949. She came to Australia in 1973. She is married with two children. She can speak a little English but she is unable to read or write.
6          On arrival in Australia, the plaintiff was employed in a pie factory. She was then involved in looking after her children, before resuming work in an elastic factory and then becoming a cleaner.
7          In cross examination, the plaintiff confirmed that she worked as a machinist with Kortex for some years after 1987.

Pre-Incident Condition
8          The plaintiff deposed she suffered a work-related injury to her neck and shoulder region in the early 1980s (“the 1984 injury”) and was treated by Dr Giaprakas for a number of years for pain in the left shoulder and neck.
9          The plaintiff was off work and lodged a claim and eventually received a settlement of $20,000 in 1987. The pain in her neck and left shoulder gradually eased but continued for some years, being painful from time to time.
10        The plaintiff was cross examined at length in relation to the 1984 injury. She confirmed at that time she had only the one injury to her neck and shoulder.
11        The plaintiff was cross-examined about her description of her condition when examined by doctors following her 1984 injury. She said she knew there was pain in her left shoulder but she did not think the pain spread to include her whole body. She would not have told doctors she could not do tasks with her left hand because she was right handed. She agreed she needed assistance from her husband.
12        The plaintiff explained that the 1984 injury was a strain and after receiving treatment, that condition got better and she was able to do a lot more things as time went by. She was not sure, but it would be about three or four years after the 1984 injury that she recovered. All she knew was she was in pain and that with treatment, she got better and she wanted to get better to get back to work. She would not have appeared crippled or seemingly paralysed when medically examined, except at the beginning because with time, the injury got better.
13        When she saw Mr Scott in June 1985, the plaintiff was able to move her left hand and arm and she would not have held it as if it was paralysed.
14        The plaintiff denied that she told Dr Freed in 1986 that she was prevented from doing effective housework because of her left hand. She denied that in 1986, the symptoms had spread to involve the entire left side of her body including her left leg. The only injury she suffered was to her left arm and shoulder. She did not understand how she could limp if she had never suffered any injury to her leg. She repeatedly denied she had pain and weakness in the entire left side. In the beginning, her symptoms were bad and she was severely restricted but with time they got better.
15        When asked how she recovered to get back to working as a sewing machinist, the plaintiff said her hand was not crippled. She had pain in her shoulder and arm and her arm slowly got better with the aid of treatment and with the help of her family. She took various medications and underwent treatment from her doctor, Dr Giaprakas.
16        The plaintiff was then cross-examined as to the history of the 1984 injury given by her to doctors who examined her in relation to the present application. She denied she told Dr Adlard her shoulder injury had settled down after about six weeks, “because for a fact it had taken a long time”.
17        When it was put to her that she reported no medical history to Dr Weissman and Dr Paoletti, the plaintiff said that she could only answer questions that they asked her.
18        The plaintiff commenced employment with the first defendant as a cleaner on 19 September 2002. She worked five to six days a week, eight to twelve hours a day. She also worked twenty hours a week as a cleaner with Filiatra Cleaning Pty Ltd (“Filiatra”).
19        A few days prior to the said date, the plaintiff was sent with her husband to work cleaning buildings at the Simpson Army Barracks in Macleod (“the Barracks”). One of their jobs was to dust the walls and ceilings and then steam clean the carpets.

The Incident
20        On the said date, the plaintiff had completed her duties on the first floor. When coming down the main staircase to the ground floor, the plaintiff whilst dusting the fittings mounted on the wall in the foyer, spotted a spider going across the ceiling. She attempted to catch it with her short handled duster, standing on her toes. There were some other stairs that were not visible to her and as she chased the spider, she slipped off the edge of the step and fell down the flight of stairs on the right side of her body (“the incident”).
21        As a result of the incident, the plaintiff suffered a broken right ankle and was not able to move. She screamed for her husband who was cleaning at the other end of the building.
22        The plaintiff was taken by her supervisor to a doctor at the Northern Industrial Clinic where an x-ray of her right ankle was organised. By the next day, the plaintiff had also developed pain in the low back, neck, head and right arm and shoulder.
23        In cross examination, the plaintiff described suffering pain and swelling in her right ankle in the incident and she then experienced pain in her leg, hip and back and into the ribs. She also had pain in her right shoulder and the right side of her face and complained to her doctor about those symptoms at the time.
24        The plaintiff was referred to an orthopaedic surgeon, Mr Bernard Lynch, on 16 December 2005 and he prescribed a cam boot to help the plaintiff walk.
25        The plaintiff commenced physiotherapy on 31 January 2006 and over the next few months, had treatment to her ankle, right leg, right arm and shoulder, low back and neck.
26        Mr Michael Flaim, of the Northern Industrial Clinic, organised a CT scan of the plaintiff’s right ankle on 22 March 2006, which she was informed confirmed a fracture.
27        In April 2006, Mr Lynch considered the pain that was going into the plaintiff’s right leg may be coming from her back. As that pain continued, Mr Flaim arranged a CT scan of the plaintiff’s lumbar spine on 13 April 2006. Nevertheless, he certified the plaintiff fit to return on 10 May 2006.
28        In cross examination, the plaintiff agreed that in 2006 she was referred to orthopaedic surgeon Mr Kudelka by her family doctor, Dr Giaprakas. The plaintiff saw Mr Kudelka on only one occasion. He yelled at her and did not provide her with any treatment.

Return to Work
29        On 10 May 2006, the plaintiff returned to work on light duties for four hours, two days a week. She was unable to return to work with Filiatra.
30        In cross examination, the plaintiff denied that she worked with Filiatra after the incident and she explained that payments made to her by Filiatra after that time were for work performed before the incident.
31        On her return to work with the first defendant, the plaintiff had difficulty managing duties requiring her to pick up rubbish, because she was still using a stick. She had trouble going up and down the stairs and being on her feet the whole time, but she was very keen to continue to work and get back to earning the high income she was receiving at the time of the incident.
32        Gradually, the plaintiff’s hours were increased to three hours, three days a week in July and then five hours, three days a week in August.
33        The new boss, Matthew, then told the plaintiff to take annual leave for four weeks and in September he told her to take a further two weeks’ leave. The plaintiff deposed that Matthew did not want to continue paying for a taxi for her to travel home from work each day after about a week. She needed a taxi because she could not walk and still had her leg in a special boot. She could drive locally but did not drive long distances.
34        Matthew then told the plaintiff to stay at home. She was very distressed because she wanted to keep working. She pleaded with him to allow her to stay at work, but he told her she could not do the work properly, even with the young assistant, Roger Cushion. Roger was directed to monitor the plaintiff’s work duties and he photographed her with a camera on his mobile phone. As he refused to push the plaintiff in the performance of her duties, Roger was sacked.
35        Matthew screamed at the plaintiff when she continued to plead to stay on and that made her very upset and distressed.
36        In cross examination, the plaintiff said that she went back to work after the incident because the first defendant practically forced her to. She wanted to keep her job and she returned to work using the stick. She told Mr Flaim she was not ready for work but the first defendant wanted her to come back and when she did, she tried to work as much as she could.
37        The plaintiff did not think she was coping on her return to work, using a stick and having to wear a pack on her back. The first defendant promised light duties sorting papers but such duties were only made available for three days. After that time the first defendant told the plaintiff there was no work of that nature available and the plaintiff was given harder jobs to do.
38        The plaintiff was happy to try and continue working as long as she could but the first defendant did not give her the opportunity. The first defendant made her worse.
39        The first defendant promised a lot of things but did not do them. The plaintiff confirmed that she was very upset about being videoed in June 2006 picking up a parcel from the post office and when she got to the post office it was closed. She was upset by all the sort of things they were doing to her.
40        In October 2006, the plaintiff was referred to a psychologist, Mr Stojcevski. She was not only distressed because of Matthew’s behaviour, but also because she was unable to continue working, because she could not do normal cleaning duties due to severe pain and Matthew did not want her to work with her stick.
41        The plaintiff’s inability to work and contribute because of the pain and disability caused the plaintiff the most upset. Mr Flaim commenced prescribing antidepressant medication and medication to control panic attacks that the plaintiff was suffering. At that time, the plaintiff continued to attend Mr Stojcevski and was also treated with Effexor and Seroquel.
42        During 2007 and 2008, the plaintiff continued to be treated by Mr Flaim for pain which involved the whole of her right leg, back, right shoulder and head. He also prescribed Lexapro for depression, Panamax for pain, Prothiaden and Tramal over 2007.

Capacity for Employment
43        The plaintiff’s employment was terminated in October 2007 because she was not able to perform her pre-injury duties. Subsequently, she was not offered any form of rehabilitation, retraining or restricted work.
44        A vocational assessment was carried out by Work Focus on 19 November 2007 and on 31 January 2008 at WorkCover’s request. In February 2008, Work Focus approached Mr Flaim and was advised by him that the plaintiff then had no capacity for work. The plaintiff understood that Work Focus then determined that it was not appropriate to provide her with job assistance.
45        Whilst a number of jobs have been suggested by WorkCover, the plaintiff believes that she would be incapable of performing them, as her English is restricted and her reading and writing are even more restricted.
46        The plaintiff has only ever performed manual type labour jobs. She has no office or computer skills. She is limited in the amount of time that she can sit, stand, walk or drive.
47        The plaintiff does not consider herself reliable for work because of the varying nature of the level of her pain and symptoms and her inability to concentrate for long periods.
48        The plaintiff does not know what the future holds for her. She feels useless as she cannot work. She has lost the ability to contribute financially. She has experienced a great loss of self esteem and purpose as a result of her inability to work.
49        The plaintiff deposed she derived much of her identity from the contribution she made to the home by way of cooking and cleaning and by way of contributing financially.
50        The plaintiff was an extremely hard worker before the incident and she took great pride in her strong work ethic and substantial earning capacity. She held down two jobs simultaneously and worked long hours. She is devastated by the loss and feels as though she has lost her sense of purpose.
51        In cross examination, the plaintiff said that since ceasing work with the first defendant, she has not looked for another job of any kind or undertaken any English course.
52        The plaintiff had intended to work until at least the normal age of retirement and probably as long as her husband and her were fit to continue as a team. She believed because of her injury she is permanently incapacitated for any employment.
53        In the 2003 financial year, the plaintiff’s gross earnings were $53,306. In 2004, she earned $62,349 and in 2005, her earnings were $53,858.
54        For the three years after the injury, the plaintiff’s gross earnings were as follows: $47,744 in 2006, $24,495 in 2007 and $22,279 in 2008. The plaintiff believes that had she not been injured, her income from personal exertion for the three years after the injury would have been at least $63,000 per a year.
55        In her more recent affidavit sworn the day before the hearing, the plaintiff deposed she continued to receive weekly WorkCover payments on a “no current capacity” rate.

Psychiatric Condition
56 In her first affidavit, the plaintiff deposed she had become very depressed and felt her life had been destroyed by her inability to work because of her physical injuries. She felt very panicky about the future and the fact that she would have to go on with pain for a long time.
57 The plaintiff’s sleep was disturbed by dreams and thoughts about how the injury had affected her and by nightmares about her boss and what happened at work when she was trying to continue working despite her disability.

58        The plaintiff became very tearful very easily about the loss she had suffered and how she missed working. She found it very hard to get up and do things and she had become withdrawn. She suffered severe and frequent panic attacks which gave her chest pain and headaches, palpitations and shortness of breath. At those times she felt numbness and tingling around her mouth and in her fingers and her hands clenched.
59        The plaintiff remains depressed and anxious. Her symptoms of depression and anxiety are constant, although they can vary in severity. She generally feels down and is not interested in activities or getting involved with people.
60        When the plaintiff experiences a severe bout of anxiety and depression, she feels like staying in bed, not mixing with people at all and she wants to be left alone in a dark and quiet room.
61        The plaintiff also experiences panic attacks on a weekly basis. When they occur, she experiences a feeling of panic and anxiety with palpations and shortness of breath. At times, the plaintiff has difficulty concentrating, she is forgetful and feels confused.
62        The plaintiff confirmed she continues to experience the range and degree of symptoms as listed in her psychologist’s report dated 29 August 2011.
63        In cross examination, the plaintiff said that she has not discussed with her general practitioner going to see a psychiatrist but she has discussed an increase in the dosage of medication because of the pain which was causing her a lot of anxiety.
64        Mr Bosanac prescribed medication but did not know why she had not seen him again. He did not ask her to go back to see him. It was not up to her to arrange a re-examination.
65        The psychologist talks to the plaintiff and guides her through her problems and tells her what she should be doing. They speak the same language and he helps her a great deal to cope with her problems. She thought she had improved with his treatment, however, if something happens and the pain increases, then it sets her back again and she needs more counselling.

Pain

66

The plaintiff deposed in 2010 that she continued to suffer pain in her right ankle, mainly on the side, and also in the right leg up to her hip. She also had pain in her right shoulder radiating into the right arm with numbness and pins and needles and also pain in the low back. Further, she continued to suffer severe headaches.

67

If she stood or sat for too long, her right leg went numb and the pain increased. Any physical activity increased the pain in the areas on the right side of her body that were hurt in the fall. She then continued to rely on a walking stick and the pain in the right side of her body had not improved and the headaches were gradually getting worse.

68

At the present times, the plaintiff continues to suffer from pain in her right ankle, back and right shoulder and she continues to get headaches and migraines. She had headaches before the incident but her headaches since that time have been worse.

69

In cross examination, the plaintiff described her symptoms are now in the area of the fracture of the ankle, her right leg feels numb and stiff right up to the hip, and she experiences pain in the hip, back and also the right shoulder and feels as if her whole right side is painful. There is some numbness in her face where she fell and also numbness in her mouth. She has numbness in the toes in her right foot and also the fingers in her right hand.

70

The plaintiff’s pain varies. Sometimes she feels as if her whole right side is painful and at other times, it is painful in specific areas. Sometimes she feels better and thinks she can do a lot of things but then the pain increases and then she has to go to her bedroom and lie down. She did not think she could work three hours a day or five hours a day three days a week.

71

In cross examination, the plaintiff agreed she has a problem with her bowels and bladder since the incident.
Activities
72        Before the incident, the plaintiff enjoyed tending her vegetable garden, cooking meals, cakes and desserts and knitting. She is unable to perform these activities in the way that she was able to before her injury.
73        In cross examination, the plaintiff said that she does some light cooking at home and drives short distances.
74        The plaintiff sometimes cleans when she feels better and she tries to do what she can. There are days when she feels good and she tries to do what she can, and there are days when she feels very bad and does not do anything at all. The pain and sometimes her mind stop her from cleaning.
75        The plaintiff very rarely cooks and sometimes she goes shopping. Sometimes she can work in the garden. She listens to the radio or television and a lot of the time she just wants to be in a dark room with no noise.
76        The plaintiff’s injury has also affected her relationship with her family. She feels like a burden to her husband as he now helps her with many tasks that she was able to perform before her injury. She is upset by this. She cannot play with her grandchildren as she would like and feels distanced from her family.
77        The plaintiff’s husband helps her with heavier work but not everything. For example, he applies her Voltaren cream because she cannot do it, and sometimes when she has a lot of pain, he cuts up things and helps her with various tasks. Sometimes when she is feeling bad, he helps her getting dressed but she wants to do that herself as she wants to be independent as much as possible. Sometimes she requires his help bathing. Sometimes when her leg becomes numb, she finds it difficult walking.

Current Treatment
78 The plaintiff continues to attend her general practitioner for treatment and also her psychologist, whom she sees between every two to four weeks for treatment. She takes Panadol three times a day, Seroquel nightly and two different Effexor tablets each morning.

Claim Documentation
79        The plaintiff submitted a Claim for Compensation on 19 December 2005, setting out she suffered injury on the said date when dusting and looking up, she slipped off the edge of a step, twisting her ankle and falling. She was then working 22.5 hours per week, earning $17.33 per an hour.
80        The employer’s claim report set out the plaintiff was working 38 hours a week earning $13.77 an hour, with pre-injury average weekly earnings at the time of injury, excluding overtime, of $548.54. The plaintiff was earning $145.13 weekly in overtime.
81 By letter dated 11 June 2009, QBE advised the plaintiff that liability had been accepted for injuries to the right ankle, psychiatric condition, soft tissue injury to the low back, right leg, wrist, hands and right shoulder pursuant to s.98C of the Act in relation to the incident on 14 December 2005.
82        By letter dated 12 July 2007, Spotless Services Limited (“Spotless”) advised the plaintiff the contract between it and the Barracks was terminated on 5 August 2007 and that the plaintiff’s employment with Spotless at the Barracks would cease on that date.
83        By letter dated 7 August 2007, Spotless advised the plaintiff of her entitlements on the termination of her employment.
84        By letter dated 1 June 2009, Spotless wrote to the plaintiff congratulating her on fifteen years’ service.

The Plaintiff’s Medical Evidence
85        The plaintiff first attended the Northern Industrial Clinic on 14 December 2005. She was initially seen there by Dr Branson after the incident and then by Dr Tunaley. When Mr Flaim first saw the plaintiff on 16 December, he referred her to Mr Lynch.
86        On examination in March 2006, Mr Flaim noted that there was a worsening of the plaintiff’s situation, with the pain by that time spreading from the ankle to involve the whole of the right leg and indeed the pain extended into the right shoulder and the head.
87        In June 2006, Mr Flaim started the plaintiff on Lyrica, having found no objective signs of sciatica and thinking she may respond if her pain was neuropathic. However there was no real response to this medication.
88        In his report of April 2007, Mr Flaim noted the plaintiff’s widespread pain continued to affect her throughout 2006 and by November she had increasing difficulty with activities of daily living. In his view, there were no physical signs of an objective nature to confirm the nature of the underlying problem but he noted she walked with the help of a stick and that she appeared distressed.
89        At that stage, Mr Flaim referred the plaintiff to a Macedonian speaking psychologist and commenced her on Prothiaden to try and help her with the chronic pain.
90        The plaintiff’s condition continued through 2007.
91        In the course of treatment, Mr Flaim arranged for the plaintiff to have a CT scan of her right ankle which showed non-union fragmentation associated with a fracture near the tip of the lateral malleolus. He asked Mr Lynch to review the plaintiff in this regard but Mr Lynch felt there was no intervention required.
92        Mr Flaim confirmed the initial diagnosis was one of a fracture of the right lateral malleolus at work. Since then, he thought the plaintiff’s pain had become generalised and had been attended by significant psychological reaction to injury.
93        As of April 2007, Mr Flaim considered the plaintiff was incapacitated for any work because of a combination of physical and psychological distress. He was very pessimistic as to her long term outcome because of the fact she had developed a Chronic Pain Syndrome and appeared to have refractory pain no matter what form of treatment had been applied. At that stage the plaintiff was taking Panamax, Prothiaden, Tramadol and used a Voltaren gel and also saw a psychologist.
94        Lexapro at 10 milligrams was prescribed in July 2007.
95        In a subsequent report of January 2008, attendances at the clinic from April 2007 were detailed by Mr Flaim.
96        On 16 May 2007, Mr Flaim wrote a referral letter to Mr Stojcevski, a Macedonian speaking psychologist. Mr Flaim certified the plaintiff for a worker’s compensation condition, feeling there was no change in her condition.
97        In January 2008, the plaintiff had changing complaints of widespread pain and accompanying anxiety and panic attack.
98        At that stage, Mr Flaim thought any soft tissue component as well as any bony component of the ankle had had ample time to resolve. He considered her current failure to resolve was a consequence of the development of a Chronic Pain Syndrome which had a psychological genesis. He then thought the plaintiff had a very poor outlook for the future, with no prospect of being able to resume physical work as a cleaner.
99        In mid 2008, Mr Flaim confirmed during the course of 2007/2008, the plaintiff’s symptoms and complaints had remained practically unchanged. She complained of very diffuse pain and symptoms which had been accompanied by significant psychological distress, so that at times she required treatment for a Panic Disorder and for depression, with medication prescribed for Panic Disorder.
100       As of February 2008, Mr Flaim thought the plaintiff had no employment capacity. He thought that situation would persist for the foreseeable future. Mr Flaim noted, given the fact the plaintiff had minimal education, that she difficulty writing in her own language and could not write in English and had always done physically demanding work including twelve years of work with Spotless, he considered it was highly likely she would remain permanently unemployed.
101       In February 2009, Mr Flaim referred the plaintiff to Dr Bosanac, psychiatrist.
102       In May 2010, Mr Flaim advised QBE the plaintiff needed a localised bone scan, because it was difficult to be certain of the exact pathology in her spine.
103       Having reviewed the results of the bone scan, Mr Flaim advised such an investigation was justified on the basis of attempting to achieve an accurate diagnosis of a fifty nine year old person who presented with chronic pain.
104       Mr Flaim was required for cross examination.
105       In examination-in-chief, Mr Flaim said that it did not surprise him that he would have seen the plaintiff on behalf of the first defendant, being a member of the nominated medical practice to whom its workers were sent.
106       Mr Flaim treated the plaintiff from December 2005 until late 2009.
107       Upon referral to Mr Bosanac, the plaintiff’s medication was changed at his suggestion. There was no real change in the plaintiff’s condition over a matter of months, although she had perhaps some improvement with sleep.
108       Mr Flaim explained that he initially found the plaintiff quite amenable to treatment, however with increasing time, her attitude and her mood certainly changed, and rather than reducing pain she developed increasing pain, initially in the right leg but then spreading even well beyond that area into the neck, with associated headaches.
109       That was the situation in about March 2006 and he felt the plaintiff was “going down a slippery slope” with her background, which was first of all not a highly sophisticated background, and secondly a culturally different response to pain and disability. He had seen many times that people in her situation often end up with chronic pain and chronic disability. He explained how when the plaintiff signed her certificates, she had to print each letter rather than scribbling a signature.
110       Mr Flaim tried to avoid that conclusion by referring the plaintiff to a psychologist initially, and a psychiatrist eventually, both of whom spoke Macedonian, however she really was not responding to treatment and she was getting into a worse situation.

111 Mr Flaim confirmed the plaintiff found treatment by Mr Stovjcevski,

psychologist, from October 2006 of assistance and useful for her to ventilate
her problems in her native language.

112       In cross-examination, Mr Flaim confirmed that he expected the plaintiff’s recovery within six weeks of the incident, however recovery was “complicated by her body and her own response to the injury.”
113       Mr Flaim confirmed he was certifying the plaintiff for alternative duties which she was happy to do in July/August. Her driving difficulty was noted in September 2006 and there was a note in September 2006 of complaint of widespread pain.
114       Mr Flaim did speak to Dr Giaprakas and was aware Dr Giaprakas had referred the plaintiff to Mr Kudelka but Mr Flaim had no note from Mr Kudelka.
115       Mr Flaim confirmed he was given a similar history as that given by the plaintiff to Mr Bosanac of her problems with her employer.
116       Whilst confirming that she had given him a similar history, Mr Flaim said had it not been for the incident, none of those events would have occurred. When the plaintiff was required to do more than she perceived possible, she developed increasing symptoms and psychological consequences.
117       Mr Flaim confirmed that he first noted increasing pain in March 2006 and that was before disagreements and conflicts at work which happened in the middle of the year and later on.
118       Mr Flaim did not have a history of the 1984 injury. In terms of the current injury, he agreed that the type of florid reaction to a minor injury was not normal. When told of the history of the 1984 injury, it surprised him that the plaintiff had had a similar previous experience.
119       On the other hand, considering the fact of two similar events, Mr Flaim noted that one perhaps should not be surprised because the plaintiff’s background would perhaps lead her to react in the same way on more than one occasion, depending on whatever the stimulus was.
120       Having been taken through Mr Burke and Dr Freed’s history and description of the plaintiff on examination, Mr Flaim agreed it was the same way the plaintiff presented to him. Mr Flaim was taken to the diagnosis of a conversation syndrome and said there was no question that the plaintiff had had some sort of psychological reaction to her injury.
121       In his dealings with the plaintiff over quite a long period of time, Mr Flaim had no sense himself that the plaintiff was putting anything on. She may have been but he could not sense it. He would have preferred to have known of the history of the 1984 injury.
122       When asked how one would recover from being a severe cripple in 1986 to getting a job as a machinist for ten years, Mr Flaim said he did not know. He had seen patients like that many times. He noted the plaintiff in 1984 probably had no significant injury but in 2005 she certainly had a minor fracture.
123       Mr Flaim had little to say when asked about the plaintiff’s full recovery from the psychiatric condition relating to her 1984 injury. He thought that psychological factors would certainly be important; perhaps the reward of $20,000 might be a reasonable factor and the cessation of litigation was also a reasonable factor, because litigation put additional stress on people.

124 Mr Flaim essentially agreed with Mr Bosanac’s comments about compensation for people in the Macedonian community. Mr Flaim agreed that there was some secondary gain by the plaintiff being able to do nothing. Mr Flaim suspected that secondary gain was important in the deterioration of the plaintiff’s pain. He said it was certainly possible, given her previous recovery that she would recover again. He then agreed it was likely and he had to emphasise he had not found on repeated examinations a strong physical basis for total invalidity.
125       Mr Flaim agreed that, when you took away secondary gain and litigation, it was certainly possible the plaintiff would recover again. Again, when it was put recovery was probable, Mr Flaim said it was more likely, given the fact that the had plaintiff behaved in this way before and that there was an increased likelihood she would behave in exactly the same way in the future.
126       Mr Flaim could not remember talking to the plaintiff about seeing a psychiatrist other than sending her to Mr Bosanac. Mr Bosanac advised Mr Flaim he did not have the energy to treat the plaintiff and he thought that he could not help her.
127       Mr Flaim was pessimistic about the prospects for any form of treatment after a certain length of time, because he thought whatever happened, the plaintiff would not improve and treatment would be unlikely to resolve her pain or disability.
128       In re-examination, Mr Flaim confirmed he last saw the plaintiff for treatment in December 2009. He confirmed the opinions set out in his reports. He noted that with the plaintiff, having recovered from a similar episode, certainly it was possible that that course of events would repeat on this occasion. He confirmed that was certainly not his opinion in 2007.
129       In his view, the fact the plaintiff had recovered from a similar condition previously was significant and it meant that there was a possibility for recovery now even though the plaintiff’s condition had been going on for six years.
130       Mr Flaim confirmed his theory that people with tertiary education never end up like the plaintiff. The level of education was important; unskilled and possibly demeaning jobs were certainly a strong stimulus for that kind of behaviour and he thought they were the main feature. In his years of treating the plaintiff, there was nothing about her behaviour that suggested to him there was any input of conscious knowledge of promoting symptoms and/or secondary gain considerations.
131       If it had not been for the incident or the injury, in Mr Flaim’s view, there would have been no reason for anyone within the plaintiff’s management to provoke a response. Mr Flaim confirmed that from the middle of 2006 he heard a lot from the plaintiff about Matthew’s treatment of her.

132       The plaintiff was referred to Active Care Physiotherapy Group in January 2006 by Mr Flaim. She was seen there by Ms Vinci, physiotherapist, who reported in April 2006.
133       Ms Vinci described the treatment course and the protracted recovery and the return to light duties.
134       Ms Vinci noted that plaintiff was becoming very distressed and emotional about contact with her employer in about August 2006, noting her state of mind and general affect was reasonable prior to that time. Ms Vinci noted the plaintiff had been fit for modified duties for some months now but no suitable employment offer had been structured. In her view, the plaintiff’s case was a complex one requiring ongoing multidisciplinary management.
135       In a subsequent report provided in 2008, Ms Vinci set out that physiotherapy treatment was terminated in late 2007. In 2008, Ms Vinci advised that the plaintiff would benefit from further treatment and that such treatment would also have some psychological benefit.
136       Mr Stojcevski, psychologist, first saw the plaintiff on referral from Mr Flaim in October 2006. The plaintiff then told him about the incident and her subsequent treatment at work on her return.
137       The plaintiff believed Matthew and the occupational therapist conspired against her, with the plaintiff describing a meeting at which she thought she was ridiculed about her use of a walking stick.
138       In consultation with Work Focus OT and Matthew, the plaintiff was asked to take annual leave in August for a month. Feeling pressured, she accepted it.
139       The night before her return to work, the plaintiff was told by Matthew not to come back and to extend her leave. As a result, the plaintiff was shocked and dismayed. Matthew hung up on her when she cried and pleaded to go back to work.
140       Mr Stojcevski noted that since then, the plaintiff had developed a fear of Matthew. The plaintiff told Mr Stojcevski that she felt further harassed by the insurance and surveillance cameras. She ruminated she could never make Matthew happy. She felt tremendously hurt and mistreated by him and discussed this problem with her husband continually at home.
141       In April 2007, Mr Stojcevski thought from a physical perspective, the plaintiff had some work capacity but not from a psychological perspective. He diagnosed a Chronic Pain Disorder associated with both psychological factors and a general medication condition with some elements of PTSD.
142       Mr Stojcevski repeated these views in a report of 2 July 2008.
143       In his most recent report of August 2011, Mr Stojcevski confirmed his diagnosis, commenting that in his view the plaintiff was not malingering due to her physical or psychological symptoms.
144       Mr Stojcevski noted that Dr Botvinik’s diagnosis of an Adjustment Disorder with anxiety and depression symptoms failed to accommodate the complete picture of the plaintiff’s psychological/ psychiatric injury. Whilst he accepted Panic Disorder as diagnosed by the Medical Panel, Mr Stojcevski did not include it in his multi-axial diagnosis. He found Dr Paoletti’s diagnosis acceptable, noting Dr Adlard’s diagnosis corresponded to his.
145       Mr Stojcevski concluded the incapacity for return to pre-injury employment was related to the work place incident. In his view, the plaintiff was not capable of returning to her pre-injury role now or in the foreseeable future and he could not conceive of an alternative occupation to which the plaintiff was suited.
146       He noted the plaintiff’s compliance levels with treatment were good; however, she struggled with behavioural components of the strategies discussed. He noted she continued to ruminate less than at presentation, had fewer anxiety attacks and spasms, less in both frequency and intensity and she was more empowered around tolerating her pain, until psychological distress activated the bidirectional chain of her condition.
147       Mr Stojcevski thought the plaintiff was only at a mild risk of self harm. In his view, she fulfilled the Chronic Pain Disorder diagnosis associated with psychological factors and a general medical condition and a Major Depressive Disorder. He thought she was not suited to retraining, noting there had been deterioration since she was certified fit for limited duties by Mr Flaim. He thought there was some benefits to be derived in the areas of social and domestic activities through long term counselling.
148       Mr Stojcevski considered the Chronic Pain Disorder was a primary injury, whilst the depressive disorder was secondary, wholly resultant to the physical injury and the subsequent sequelae.
149       Dr Giaprakas referred the plaintiff to orthopaedic surgeon, Mr Kudelka, in November 2006, who saw the plaintiff once in relation to her incident injury. Mr Kudelka then considered the plaintiff was fit for light duties but he noted her boss had indicated he really did not want her back until she fully recovered.
150       Mr Kudelka considered it seemed unlikely the plaintiff would be able to return to cleaning duties in the foreseeable future.
151       Dr Chadah, osteopath, first saw the plaintiff in January 2008, when she complained of chronic constant lower back pain, pain in the right lower leg and ankle as well as neck and shoulder pain.
152       He noted she responded well to osteopathic treatment and benefited from it physically and psychologically. He noted that treatment had been ceased abruptly recently.
153       Dr Bosanac, psychiatrist, saw the plaintiff once, on referral from Mr Flaim in February 2009.
154       The plaintiff presented to him with a story that her mental state deteriorated significantly since she was injured at work and subsequently sacked.
155       Throughout the interview, the plaintiff was ruminating about her problems at work being the basis of her current mental health problems. She told Dr Bosanac that she was being asked to perform unreasonable tasks when on light duties and constantly harassed and threatened by her supervisors. Her supervisor, Matthew, who made the decision to sack her, called her derogatory names in front of others and often used “F” words when confronting her during the lead up to her sacking.
156       The plaintiff told Dr Bosanac she had developed intense fears about Matthew.
157       If all of that was true as she described significant harassment and maltreatment bordering on abuse, Dr Bosanac wondered about the possibility of emotional and psychological consequences of this abuse fuelling the plaintiff’s current mental distress.
158       Dr Bosanac diagnosed a Major Depressive Disorder – moderate - developing over time, with intensity and frequency of symptoms which varied. The differential diagnosis was a delusion disorder - somatic type (if the plaintiff’s preoccupation had delusional intensity) or hypochondriasis with poor insight. He doubted the plaintiff had had any benefit from psychological treatment so far and if treatment continued, it should have only supportive expectations. He suggested an antidepressant change with Avanza or Effexor as the plaintiff had not benefited from Escitalopram.
159       Dr Bosanac thought the plaintiff may also benefit from a trial on an atypical anti-psychotic, noting such strategy may also dilute her almost delusional rumination of her significant illness and disability and over time improve her mental distress.

160 Considering the diagnostic dilemma and likelihood of a long term

compensation process needs, Dr Bosanac suggested a regular management
by a consultant psychiatrist experienced in medico-legal work.

161 Dr Bosanac doubted the plaintiff had the capacity to produce her symptoms intentionally and therefore doubted she was malingering and doubted malingering was her prime diagnosis.

Medico-Legal Evidence
162       The plaintiff was examined by psychiatrist, Associate Professor Paoletti, on 29 February 2008.
163       The plaintiff told him of no past history of worker’s compensation or TAC claims, no serious or chronic medical problems.
164       The plaintiff told Dr Paoletti that on her return to work after the incident, she was given harder tasks by her employer than recommended and she lasted only about three months and had not worked since.
165       The plaintiff told him she was not very well and she had lost her health, she felt she was not worthy for herself or others, her sleep was poor and her appetite was not good.
166       The plaintiff told him sometimes she spent the day mainly in bed, otherwise she sat in the backyard. Sometimes she may go for a walk but was she very fearful of walking in the street because she feared she might run into her boss, who had made her life miserable.
167       On examination, the plaintiff was tearful at times. Speech was of normal rate, volume and tone with no repetition. Her affect and mood was dysthymic with no reactivity consistent with the reported pervasive mood.
168       From a psychiatric point of view, Dr Paoletti thought the plaintiff suffered from depressive disorder not otherwise specified and pain disorder associated with both psychological factors and a general medical condition. Dr Paoletti thought employment would have been a significant contributing factor to the precipitation of those conditions to the same extent as what it was for the physical problems. It remained so, through continuity of symptoms and through the content of the mental processes.
169       Dr Paoletti thought the dose of Lexapro alone and Prothiaden alone may be too low. If he were treating the plaintiff, he would not use the combination and he would give her a trial of a dose likely to be therapeutic.
170       Dr Paoletti agreed with Dr Adlard on the possibility of using a dual action antidepressant. If Lexapro failed, he would then use Avanza over Effexor as it was less likely to cause a serotonin syndrome in interaction with Tramal. If it was proposed to continue that form of analgesia, however, Avanza could cause weight gain and that would need to be monitored. He thought the more sustainable approach based on cognitive modification and rehabilitation should be tried ahead of analgesia.
171       In an ideal world, he considered the plaintiff should have a capacity for rehabilitation into modified duties, however, social factors such as age and level of education would limit the options.
172       Dr Paoletti noted the plaintiff’s current level of depression precluded all work at that time and that the depression was largely caused by loss of role and alteration of self image. Therefore a restoration of that role, albeit partial, should lessen her depression.
173       In his opinion, a rehabilitative approach, even if aimed at improving function initially, would enhance the plaintiff’s treatment. He did not see the combination of pharmacotherapy and psychotherapy having much of a prognostic outlook in the plaintiff without better restoration of function. Whether restoration of personal function would lead to occupational rehabilitation was not possible to predict at that stage. On the combination of physical, psychiatric and psychosocial factors, Dr Paoletti thought things were not likely to change in the foreseeable future and having said that, abandonment of the plaintiff to the status quo would have a bad prognostic outlook.
174       Mr Brearley, general surgeon, examined the plaintiff on 28 February 2008. At that time, the plaintiff complained to him of constant right ankle pain, discomfort and occasionally pain in the lower back, discomfort in the neck, frequent headaches and right shoulder pain.
175       The plaintiff told Mr Brearley that she has had not had a previous injury.
176       On examination, the plaintiff walked with the aid of a stick and her gait was most abnormal. There was no swelling or deformity and the plaintiff complained of severe tenderness. Ankle and joint movements were normal.
177       Mr Brearley considered that in the fall, the plaintiff suffered an injury to the right ankle in the nature of an avulsion fracture of the tip of the lateral malleolus. He noted there could have been associated trauma to the lateral ligament to the ankle joint, which could be responsible for some of her ongoing symptoms. He noted she also suffered a soft tissue injury of the lower back and injured her right shoulder, but there was no evidence of any abnormality in that regard, with a full range of movement.
178       Mr Brearley noted, because of the plaintiff’s injuries and also as a result of the way she was treated at work, she had become quite seriously depressed and it appeared that the continuation of her soft tissue injuries with their quite severe symptoms were resultant from the development of a Chronic Pain Syndrome.
179       Mr Brearley thought the plaintiff had no current work capacity as a result of the injury.
180       Taking into account the injury, the plaintiff’s employment history, where she had worked as a process worker or cleaner only, her age then of fifty eight, and her language difficulties, it was clear the plaintiff did not have a capacity for suitable employment in the open labour market that she could consistently perform. If it were considered she could do some light work, she would be unreliable in her attendance and she would be unable to concentrate adequately to do any job properly because of her pain and because of the narcotics she took and she needed ongoing psychological treatment and a pain management program. He considered she needed to reduce the narcotic drugs she was taking for pain relief.
181       Mr Brearley thought the consequences of the work injury would persist for the foreseeable future and that the plaintiff would be restricted severely in her domestic and recreational activities. He thought the prognosis for work was poor and saw no likelihood of improvement in the foreseeable future.
182       Dr Charles Castle examined the plaintiff on 1 April 2008.
183       During the interview, the plaintiff was tearful. She told Dr Castle she sometimes had difficulties in her chest and throat. She suffered headaches and had pain in her right ankle and the right side of her body. During the interview, the plaintiff was tearful.
184       On examination, the plaintiff appeared distressed and used a stick. There was full movement of the right ankle compared to the left. The plaintiff was tender over the right lateral malleolus. There was some soft tissue swelling over the lateral aspect of the right ankle and there was pain on movement.
185       Dr Castle thought the plaintiff had no work capacity of any kind.
186       Dr Castle agreed with Dr Adlard’s view of January 2008 as to the psychiatric basis of the plaintiff’s condition.
187       Dr Castle noted the plaintiff continued to complain of neck, shoulder and back pain, which he thought was of unknown or uncertain origin, although he thought it likely that the L4-5 and L5-S1 intervertebral discs were contributing to it. He noted the right ankle problem restricted the plaintiff’s walking, as did her back problem.
188       Dr Castle considered the plaintiff’s Chronic Pain Disorder and depression was severe and resulted from the incident. He considered that she had no capacity for work of any kind.
189       Dr Castle disagreed in part with Dr Adlard, noting there was now good research evidence that showed that a Chronic Pain Disorder had clear pathological components. It was also clear that a Chronic Pain Syndrome had clear psychological components. However, the consensus among pain specialists was that a Chronic Pain Disorder had a pathological basis as well as a psychological one.
190       Dr Castle thought the plaintiff had no capacity for suitable employment, noting her age and work for twenty four years as a cleaner, and before that in a textile factory. He noted her spoken English was poor and her ability to read and write English was very poor. He noted she certainly did not have the capacity to be at work each day during appointed hours and do the appointed tasks with the requisite level of concentration.
191       Further, Dr Castle thought the plaintiff was not suitable to undertake any retraining. He noted her physical condition needed to improve, her pain needed to be substantially reduced and her depression markedly improved before there was a possibility of being able to retrain.
192       Dr Castle thought the plaintiff needed to continue with counselling and that participation in a pain management program may be of some benefit. However, given the plaintiff’s depression, the duration and the severity of the Chronic Pain Disorder and her language difficulties, he was not optimistic that participation in a pain program would be of benefit. He thought the consequences were likely to continue for the foreseeable future and restrict or preclude the plaintiff in relation to social, domestic and recreational and employment activities. He noted that the effect on her social life had been dramatic, with the loss of interest in socialising and everything in life, such as going to church, visiting friends, dancing.
193       Mr King, orthopaedic surgeon, examined the plaintiff in March 2011. At that time, she complained of a constant nagging ache in the neck and right shoulder.
194       On examination, the plaintiff moved slowly and painfully leaning heavily on a stick, Mr King’s overall impression was that she was agitated, depressed and distracted.
195       There was marked limitation of all neck movements by pain and spasm and the same findings were apparent in the lumbo sacral spine.
196       Mr King noted a significant part of the limitation seemed to be due to muscle guarding and to general anxiety, although he noted there did seem to be an underlying organic limitation of neck and back pain, but to a much lesser extent than appeared on physical examination.
197       There was mild but definite limitation of right ankle joint movements by some pain and spasm.
198       Mr King noted the plaintiff had some history of a neck and left shoulder problem in the 1980s from which she had made a partial recovery, being left only with mild residual ache in her neck and left shoulder, which did not interfere with her later work.
199       Mr King thought the injury to the right ankle was in the form of an avulsion fracture to the tip of the lateral malleolus, presumably associated with damage to the capsular ligaments of the right ankle joint adequately explaining onset of pain, swelling and stiffness of the right ankle, some aching pain and stiffness ever since.
200       From the mechanism of the fall, Mr King thought it reasonable to assume the plaintiff had also suffered a lumbosacral discs and associated ligamentous structures. She also would have sustained a mild rotator cuff injury to the right shoulder, which he thought had settled down.
201       In addition to the spinal injuries, which were compounded by a quite severe psychological overlay, Mr King thought the plaintiff had some residual stiffness and pain in the right ankle joint.
202       Mr King’s overall impression was that seemingly quite severe depression and agitation were the main cause of the plaintiff’s overall seemingly severe disability and such a psychological overlay was beyond his field of expertise.
203       He thought her condition had stabilised, accepting that over and above the organic injuries, the main overriding problem seemed to be a severe psychological overlay. He thought retraining was not a practical option.
204       Mr King was subsequently provided with right ankle x-ray, CT scan of the right ankle and lumbar spine, which he confirmed were consistent with his earlier opinion.
205       Dr Nigel Strauss, psychiatrist, examined the plaintiff on 8 March 2011.

206       In terms of past history, the plaintiff told him she had had a left shoulder injury but she had recovered. She reported no other past significant medical or psychiatric history.
207       The plaintiff told him of the incident and that on her return to work she was given work that was difficult and demanding and she found it very difficult to cope for several months and then took some leave and was not offered any further work. She found this disappointing and upsetting and had not worked since. The plaintiff told Dr Strauss she could cook some light meals and she was not as socially active as before. She pottered around the garden but could not do anything. She could drive a car short distances and walked for about half an hour to an hour slowly with rest. She told him she spent a good deal of time resting at home.
208       The plaintiff told him her depression was so bad at time she was tearful and had suicidal thoughts but there had been no attempt.
209       On examination, the plaintiff appeared to be in some discomfort and she was certainly preoccupied with her pain. Memory and concentration were reasonable. There was no evidence of any psychosis, delusions or thought disorder and she was mild to moderately depressed and anxious.
210       Dr Strauss noted there was nothing at interview to suggest the plaintiff was deliberately overstating her problems. Therefore, he believed she had a pain disorder associated with a medical condition and psychological factors.
211       In his view, those psychological factors pertained to her depression. He thought she had a major depression and is in his opinion all her psychiatric problems related to the injury.
212       Dr Strauss noted there was a return to work after the injury but this failed and he suspected that it left the plaintiff in a rather upset state, which further contributed to the development of her psychologically based pain.
213       Taking into account her limited work experience, significant language problems, range of psychiatric symptoms and the fact she had not worked for a number of years, Dr Strauss believed the plaintiff was unemployable and that from a purely psychiatric point of view, she seemed to be totally and permanently incapacitated.
214       Dr Strauss thought the plaintiff should continue with psychological treatment on a fortnightly to monthly basis to prevent deterioration and that she continue with the current medication for that reason. He did not think a pain management program would help her. He thought the plaintiff suffered from a pain disorder associated with a medical condition and psychological factors from a psychiatric perspective and a major depression. He felt she was not fit for retraining and that her problems were permanent and she suffered from significant pain and distress having a deleterious affect upon her ability to cope with social, domestic and recreational activities. He thought her prognosis was poor.
215       Dr Weissman, psychiatrist, examined the plaintiff on 28 July 2011. He noted there was no medical history.
216       The plaintiff told him of the incident and her return to work on light duties using crutches. She told him she continued working for a couple of months then stopped. Further, her employer told her to stop working and said she would be called back in around a month but that never happened.
217       The plaintiff told him she experienced panic attack symptoms on a weekly basis on average. She said she was very emotional and very sad, asking why did they do that to her?
218       The plaintiff then went on to explain that the employer sent her home and allegedly told her they would call her back after four weeks, but she never heard anything from them. When she returned to work following the injury, Matthew allegedly sent a young supervisor to follow her around the workplace and allegedly took photographs of her. After about four weeks, she called Matthew and he allegedly started yelling at her, saying nasty things which made her feel stressed and disappointed.
219       On mental state examination, the plaintiff seemed to be in significant pain. The quality of her affect was very depressed, anxious, tense, mildly irritable, mildly agitated and restricted in range. She had a frown.
220       Her thought stream was slowed. There was no formal thought disorder. The content of her thinking revealed moderately severe mixed reactive depressive and anxiety symptoms, themes and features, symptoms and features of traumatisation regarding her perception of how she was treated by her employer (although limited traumatisation) directly related to the circumstances of the incident itself, some pain focus and preoccupation, anhedonia, and passive suicidal ideation, but no current suicidal plan and there were no delusions abnormalities of perception.
221       There was some anxiety, nervousness, hypervigilance and hyperarousal around stairs. Whilst cognition was not formally assessed, there was patchy slowing and impairment of the plaintiff’s attention, concentration, short term memory and speed of information processing.
222       The plaintiff’s insight and judgment were characterised by a significantly lowered self-esteem and confidence and elevated health concerns and negative thinking about herself and the future.
223       Dr Weissman noted the plaintiff came across as someone with a good solid premorbid level of functioning, level of activity and adjustment to her injury and its sequelae. The plaintiff had developed moderately severe to severe work-related psychiatric, psychological, emotional and behavioural symptoms, signs, features and disturbance including significant depression, anxiety, distress, traumatisation, panic attack symptoms and some pain focus. This had been associated with significant functional impairment, loss of quality of life and disability.
224       From a physical perspective, the major diagnosis was that of a chronic Major Depressive Disorder, moderately severe to severe with anhedonia and passive suicidal ideation.
225       Dr Weissman noted that although the plaintiff had organic pathology, she also seemed to have sustained and developed a Chronic Pain Disorder associated with psychological factors and a general medical condition, which was the second main diagnosis in her case.
226       Dr Weismann did not believe the plaintiff had a full blow Panic Disorder; however, she did experience limited panic symptoms.
227       Finally, in his view, the plaintiff experienced the symptoms and features of a traumatisation; however, she did not have a fully blown Post-Traumatic Stress Disorder (“PTSD”). Dr Weissman noted the plaintiff gave a very genuine history, and apart from having a fear of stairs, he could not elicit any PTSD symptoms directly due to the circumstances of the incident, with the plaintiff denying bad dreams, thoughts and flashbacks. However, he noted the plaintiff had symptoms and features of traumatisation related to the alleged reported treatment of her by her employer consequential to her injury when she returned to light duties.
228       Dr Weissman felt the plaintiff’s condition had stabilised. He thought her psychiatric prognosis was relatively poor and unfavourable. Taking into account her condition, Dr Weissman thought she was clearly totally incapacitated to perform her pre-injury work on purely psychiatric grounds alone. Taking into account those factors, he also thought she clearly had no capacity to perform so called suitable alternative duties and therefore on purely psychiatric grounds alone, he thought the plaintiff had no psychiatric capacity for work indefinitely. He thought she should continue to see her general practitioner and psychologist and remain on a solid dose of Effexor as well as a small dose of Seroquel.
229       Dr Weissman noted there had been a moderately severe to severe decline in deterioration in all aspects of the plaintiff’s quality of life since the incident.
230       On 4 May 2009, the Medical Panel found the plaintiff was suffering from a Major Depressive Disorder with traumatisation features and a Chronic Pain Disorder associated with a medical condition and psychological factors and a Panic Disorder relevant to the alleged anxiety and depression injury.
231       In the Panel’s opinion, the plaintiff’s employment was in fact a significant contributing factor to a soft tissue injury of the back, right shoulder, wrist and hands, since resolved, and to a Major Depressive Disorder with traumatisation features, a Chronic Pain Disorder, associated with the medical condition and psychological factors and a Panic Disorder, but not to any other alleged injury (apart from the injury to the plaintiff’s right ankle or leg).
232       The Panel considered the plaintiff was incapacitated for all work. There was no employment to which she was currently suited and that situation was permanent.

Vocational Evidence
233       A vocational assessment was carried out by Ms Lee Wilkinson, psychologist, for HDA Medical Group in July 2011.
234       Ms Wilkinson thought the plaintiff was unable to return to work as a cleaner. She noted the plaintiff’s existing skills were limited to employment that was physical in nature and involved pushing, pulling, lifting, reaching and twisting. She had skills in positions which would be considered sedentary in nature and had no office or computer skills. The plaintiff had limited English skills and relied on an interpreter and she would require a training to enter into alternate sedentary employment. She would not manage retraining due to her limited English and limitations. It was noted the plaintiff had not worked for over four years and would not be a reliable productive employee and no suitable duties were able to be identified.
235       Overall, given the information provided, from Ms Wilkinson’s assessment, it was her opinion that the plaintiff’s current physical limitations, depressive symptoms and other barriers such as her reduced reliability and productivity, physically demanding employment history, limited English skills, length of unemployment and lack of sedentary skills would prevent her from returning to any form of employment now and in the foreseeable future.
236       Ms Wilkinson noted the plaintiff had been chronically unwell for over four years and did not have a current work capacity. The plaintiff would not be able to return to work in a labour market reasonably accessible to her and it was reasonable to say no employer would knowingly and willingly hire her over equally qualified and skilled candidates.

The Defendants’ Medical Evidence
237       The plaintiff was examined by Mr Burke in June 1984.
238       The plaintiff told him of an initial injury with Aspen Biproducts where she lost six weeks from work with problems with her left arm and then her services were terminated as there was not enough work.
239       In early 1984, the plaintiff recommenced that employment and developed problems with rapid repetitive work, ceasing work in March 1984 with pain involving her left shoulder and left pectoral area.
240       The plaintiff told Mr Burke that she ceased work because her pain then involved the left side of her neck. The plaintiff advised him her disabilities were now worse. Her pain allegedly involved the left side of her neck and the entire left upper limb.
241       On examination, the plaintiff continually clutched at her left shoulder region, bobbing her head up and down, accompanying all this with facial grimacing. Mr Burke noted these histrionics continued throughout the interview and examination.
242       Mr Burke concluded, having regard to the obvious exaggerations, one wondered if this indeed represented the true situation. He thought that the plaintiff then appeared to be completely unfit for work.
243       Dr Freed, psychiatrist, examined the plaintiff in July 1985. The plaintiff told him of the initial injury in 1981 and that she ceased work in March 1984.
244       The plaintiff told him she had been suffering from ongoing and severe pain in the left shoulder and left side of neck, chest and left upper limb.
245       On mental state examination, the plaintiff manifested quite marked ill health behaviour in terms of her clutching her left shoulder with the right hand frequently, and sighing and grimacing in pain. She kept her left upper limb almost completely immobile during the examination. Her mood varied from a tense pained expression to smiling happily, remembering her earlier life.
246       Dr Freed thought there were indications of a possible marked conversation hysterical syndrome mixed with emphatic ill health behaviour and surgical complaints. From a psychiatric perspective, there were no indications of a major psychiatric disability and he thought the plaintiff would be considered part fit for gainful employment compatible with any residual surgical incapacity.
247       Dr Freed re-examined the plaintiff in August 1986 when she reported similar physical complaints and said they had been so severe that she had been prevented from doing any housework. She indicated she had not driven a car since the alleged injury except on two short occasions.
248       On examination, the plaintiff manifested marked ill health behaviour, keeping her arm immobile and clutching her left wrist. She had the same variance in facial expression.
249       Dr Freed concluded, from a psychiatric perspective, there was the possibility of neurotic preoccupation with musculoskeletal symptoms and conversion aspects, although extent of ill health behaviour, apart from the examination situation, could not be estimated with assurance. He thought there were no indications of substantive psychiatric disability requiring treatment measures or preventing gainful employment compatible with any residual surgical pathology or incapacity.
250       Mr Battlay, orthopaedic surgeon, examined the plaintiff on 3 May 1985. At that time, she complained of constant pain in the left arm, shoulder and side of her neck.
251       The plaintiff presented as an apparently severely crippled young woman who held her left hand in a seemingly paralysed position and refused to allow any movement of her left shoulder. She held her right hand in a constant clawed position which seemed entirely voluntary.
252       Mr Battlay commented that the plaintiff had at least a very severe theatrical hysterical type reaction to any symptoms which she may have and quite possibly the injury was a functional one. He thought examination by a psychiatrist was mandatory and noted certainly the way the plaintiff presented to him would preclude her from being gainfully employed. He thought it most unlikely she would return to gainful employment prior to the settlement of her case.
253       On re-examination in June 1986, the plaintiff told Mr Battlay that her symptoms had spread to involve the entire left side of her body and that she limped favouring her left leg.
254       The plaintiff presented as a weepy young woman who walked with a limp favouring her left leg. She held her left arm in an inert position with the shoulder fully abducted.
255       Mr Battlay concluded that the plaintiff presented as a severely disabled individual. He noted she cooperated poorly with the examination and claimed to have indiscriminate tenderness over the entire left upper limb, neck and shoulder. In his view, her limb symptoms were definitely of hysterical origin. He thought it could well be that the plaintiff was quite severely depressed and had a hysterical conversion reaction and he suggested she be seen by a psychiatrist. He thought she did not appear to be medically fit for work at that time.
256       Mr Peter Scott examined the plaintiff on 18 June 2005. She complained to him of constant pain and discomfort in the left side of her neck, left shoulder and left upper limb, most of the time, of which she was reluctant or unwilling or unable use her left upper limb for any activity around the house and in fact appeared to do almost nothing around the house.
257       On examination, the plaintiff appeared to be suffering from a severe degree of neurosis or hysteria and wept during the interview. She held her left arm by her side as if she was paralysed.
258       Mr Scott concluded the plaintiff was exhibiting a grossly exaggerated functional or emotional or neurotic hysterical reaction to what he assumed was a repetitive strain injury. He recommended psychiatric assessment.
259       At that time, Mr Scott thought a combination of organic and inorganic or functional or exaggerated symptoms suggested the plaintiff was virtually unemployable, regarding her left upper limb as being paralysed or useless. He expected significant improvement would occur with the earliest possible settlement of her claim.
260       Mr Scott re-examined the plaintiff on 4 June 1986 when she again complained of pain and discomfort in the entire left upper limb, with the development of pain in the left hip and thigh. The pain was severe and she was not able to perform any lifting or perform any pushing or pulling movements against resistance and she was not able to do much housework.
261       On examination, Mr Scott noted the plaintiff appeared to be suffering a severe degree of functional or emotional overlay and appeared to be showing hysterical manifestation.
262       Mr Scott thought the plaintiff had made a good recovery from any soft tissue injuries to the upper limb and that her present disability represented a grossly exaggerated response, which was probably subconscious or functional or hysterical in origin.
263       Mr Robert Marshall examined the plaintiff on 30 March 2006.
264       The plaintiff told him she had been asked to return to work by the WorkCover agent, but she could not because she could not drive a car. She continued to have right leg pain, from her ankle up her leg into her hip and the right side of her back and shoulder, complaining of pain involving virtually the entire right side of her body.
265       On examination, the plaintiff walked with an exaggerated limp which seemed highly suggestive of a considerable degree of psychosomatic non-organic overlay. Her ankle was not swollen but she complained of tenderness around the tip of the lower end of the fibula.
266       Mr Marshall noted x-rays of the plaintiff’s ankle confirmed she had comminuted fracture of the tip of the lateral malleolus of the attachment of the lateral ligament of the ankle joint.
267       Mr Marshall did not believe the plaintiff was suffering from a back injury and noted that her widespread symptoms could not be accounted for on the basis of a prolapsed disc. He thought there was evidence of some sort of injury, given the diminished right ankle joint, and he thought further investigations were appropriate.
268       Mr Marshall considered the plaintiff was suffering the effects of the fracture but her symptoms from that were very much exaggerated. He thought since it was three months since the fall, it was reasonable to conclude the plaintiff still had an incapacity as a result of the fracture. However he thought there was an ability to resume work on a graduated part time manner on light duties. He did not believe the plaintiff was suffering from any significant incapacity and thought her symptoms were considerably exaggerated. He believed there should not be any permanent impairment.
269       Having been provided with the CT scan report, Mr Marshall concluded it seemed completely clear the plaintiff had minor age related degenerative changes in her spine. He referred to his earlier report in which he stated the plaintiff had a very high degree of psychosomatic overlay. He did not believe her presentation could be regarded as a result of any of the findings on the CT scan and he confirmed his views as to a return to work.

346       Mr Shannon noted suitable employment which appeared to involve the option of varying her posture, work at a self paced rate, and on reduced hours, seemed reasonable, commenting sewing machinist was work she had done previously. He thought she could probably do that and this job would certainly keep the load of her injured ankle. He considered that she may be capable of light cleaning duties and from the physical point of view, she could work as a product quality controller. However, the overwhelming impression was of a Chronic Pain Syndrome and significant functional overlay and there was no chance, in his view, that the plaintiff would seek employment.
347       Mr Shannon concluded there was no evidence that the plaintiff was active but as described above, there were a number of discrepancies in her physical examination.
348       The Medical Panel examined the plaintiff on 9 December 2008. It concluded the plaintiff was deliberately uncooperative and therefore it could not properly assess her in a manner which would permit it to form an opinion in relation to the medical questions asked.
349       Dr Peter Stevenson, consultant physician, examined the plaintiff on 21 March 2011.
350       The plaintiff told him of the incident. She also told him that a new supervisor, Matthew, was appointed and she had problems with him almost from the beginning. He had in fact been taught by her.
351       The plaintiff appeared aggrieved and described some odd interactions. She told him Dr Stevenson she was photographed doing her duties.
352       The plaintiff reported a meeting under the old insurance company, Allianz, with an interpreter and two ladies who she said were laughing at her use of the stick. Matthew told her there was no work for her and he was sending her home and she protested, and even offered to do her normal duties but that was no use and he sent her home on leave for four weeks.
353       The plaintiff told Dr Stevenson she was very, very stressed in the fear of losing her job. When she called the new supervisor, Raymond, he yelled at her and called her a pig and said there was no way she was coming back to work and she had not returned since.
354       The plaintiff said she had pain all the right side of her body. She could cook very light food and put flowers in a vase. She thought she could drive with difficulty. She could sleep sometimes and whilst walking, she stumbled and sometimes fell.
355       Dr Stevenson noted that on formal examination, normal cervical movements appeared dramatically reduced, whereas the plaintiff had a full range of rotation when talking informally to her interpreter. In the right ankle, the plaintiff reported significant pain but she also global pain all over the lower limb.
356       Dr Stevenson thought the plaintiff suffered a minor soft tissue injury and fracture of the lateral malleolus which would not be healed. He suggested there needed to be independent psychiatric reports.
357       In his view, the contribution from work with the first defendant was significant but transient and would not cause any injury lasting months.
358       Dr Stevenson noted the plaintiff appeared anxious and depressed and may well need psychiatric treatment. He noted long term litigation was associated with depression. Her depression was not explicable as a consequence of physical injury. He noted the plaintiff’s physical injuries had resolved and were not a satisfactory explanation for her major depression.
359       Dr Stevenson noted the plaintiff was presenting as a profoundly disabled woman, but that was explicable only by psycho-social factors. He thought she had a Chronic Pain Syndrome.
360       He noted generally the plaintiff was not totally reliable on the simple issue of whether she could move her neck, thus raising issues of how reliable was her self report on more subjective issues.
361       Dr Stevenson noted the injuries had physically resolved however there were social issues. he plaintiff was in her sixties and she was not seeking work. There was no medical pathology in his view which prevented her return to the work force.
362       Dr Stevenson noted the plaintiff described a fairly housebound lifestyle and limited housework. There was no indication on her hands of strenuous activity but he noted such findings were extremely rare in females. He noted her neck and arm movement and sensory findings were not explained by medical pathology and were unlikely to be consistent.

Vocational Evidence
363 There were a number of return to work plans and vocational assessments.
364 Work Focus carried out a vocational assessment in February 2008, in which it suggested that the jobs of sewing machinist, cleaner light industry, and product controller were suitable for the plaintiff.

Surveillance
365 There was surveillance carried out of the plaintiff on 10, 15 and 17 June 2006, which resulted in approximately nineteen minutes and forty five seconds of video obtained on 15 June 2006. It was agreed between the parties that during that time the plaintiff was seen outdoors using her stick at various times and other times not. She was also shown driving a motor vehicle.
366 The defendants also admitted there was surveillance in February 2011 for fourteen hours with eleven minutes of video and fifteen hours surveillance with no video on 11 August 2011.

Overview
367       In the present application, it is not disputed the plaintiff suffered a compensable injury on or about the said date. Her claim for compensation was accepted and she continues to be in receipt of weekly payments.
368       The consensus of medical opinion is that the plaintiff suffers from both a Chronic Pain Syndrome and a major depressive illness.
369       Issues of causation raised by Dr Jager in his report were not ultimately relied upon by counsel for the defendants. In any event, I accept that the incident continues to materially contribute to the plaintiff’s mental condition.
370       Whilst the plaintiff suffered psychiatric problems following the 1984 injury, counsel for the defendants did not argue this was an aggravation case. That position is understandable given the twenty year period over which the plaintiff then worked and did not require any treatment prior to the incident, the subject of the present application.
371       However, counsel for the defendants did rely on the plaintiff’s mental response to the 1984 injury submitting that her recovery thereafter made it more likely that her present condition was not permanent.
372       Further, reliance was placed on the 1984 injury in terms of the plaintiff’s credit in two respects - the plaintiff’s denial in cross examination of the reported significant complaints on examination during the mid 1980s and her failure to provide any history of psychiatric problems arising after the 1984 injury to medical examiners in the present application.
373       It was submitted that the psychiatrists who examined the plaintiff for the purposes of the present case were not aware of the plaintiff’s response to the 1984 injury and on that basis, their opinions were flawed.
374       Whilst the plaintiff was not prepared to acknowledge the serious nature of the complaints made to examiners in relation to the 1984 injury, and she told more recent examiners very little about that earlier injury, there is no medical opinion that the plaintiff is feigning her present serious significant symptoms although Dr Adlard and Dr Jager had some concerns in this regard.
375       Mr Flaim, the plaintiff’s treating general practitioner until late 2009, did not consider the plaintiff to be malingering nor did her treating psychologist, Mr Stojcevski.
376       Whilst surveillance film, in my view, is of little assistance in sub section (c) applications, there was no film of the plaintiff engaging in any activities inconsistent with her evidence as to her present disability and symptoms.
377       Accordingly, I accept the plaintiff suffers from the range of psychiatric symptoms she described to Mr Stojcevski on recent examination.
378       In relation thereto, the plaintiff requires ongoing counselling and psychiatric treatment as has been suggested by Dr Jager. Further, the plaintiff requires significant medication on an ongoing basis.
379       The consensus of medical opinion is that the plaintiff’s mental condition is permanent, in that it is likely to last into the foreseeable future.
380       On the limited medical material available in relation to the 1984 injury and the plaintiff’s reaction thereto in a medico-legal setting, it is clear that at that time she suffered from what was then described as abnormal illness behaviour/ conversion disorder following a relatively minor left shoulder injury.
381       At that time, there was no diagnosis of a Major Depressive Disorder. The plaintiff was not prescribed any anti-depressant or anti-psychotic medication and she did not require counselling either from a psychologist or a psychiatrist.
382       Following the 1984 injury, there was not the level of formal psychiatric diagnosis as in the present case where the consensus of medical opinion is that the plaintiff suffers from both a Chronic Pain Syndrome and more significantly, a Major Depressive Disorder. In 1985, psychiatrist, Dr Freed, thought there were indications of a possible conversion disorder but he considered, from a psychiatric perspective, there were no indications of major psychiatric disability such as depressive illness, requiring specific treatment measures.
383       Taking into account the fact the plaintiff’s condition has persisted for six years without any improvement and of recent times there has been some deterioration, the medical views as to permanency, the accepted diagnosis and need for ongoing treatment, I am satisfied that the plaintiff’s present condition is permanent.
384       Cross examination of Mr Flaim did not alter my view in this regard. Whilst asked the question on numerous occasions and once appearing to agree recovery was likely given the plaintiff’s earlier recovery following the 1984 injury, Mr Flaim confirmed repeatedly recovery was a possibility. Further, he considered recovery from the present condition was more likely given the earlier recovery.
385       Whilst I accept that other medical examiners may have been assisted by details of the plaintiff’s mental response to the 1984 injury, in my view, given the limited material available, the lack of psychiatric treatment at that time and the agreed formal diagnosis in the present application, the absence of such material is of less significance and the current opinions are of assistance to me when considering the present application.

Consequences
386       Since the incident, the plaintiff has continued to experience a range of psychiatric symptoms as noted by her treating psychologist, Mr Stojcevski, which have required prescription of increasing amounts of significant medication.
387       The plaintiff suffers from headaches and has problems with her concentration. She has a disturbed sleep pattern. She has perceptions of strong shame at not being able to contribute to the household budget as she had done in the past. She has diminished self confidence and self-esteem and a perception of having no control in her life.
388       The plaintiff has difficulty with a range of daily activities. Her Major Depressive Disorder and her Chronic Pain Syndrome have affected her ability to enjoy her social and domestic life.
389       Further, a major consequence of the plaintiff’s psychiatric condition is its effect on her employment capacity.
390       Prior to the incident, the plaintiff had a solid work history and was a significant contributor to the family’s finances. After working as machinist for some years, she then undertook cleaning work for the ten years. As at the said date, the plaintiff was working about seventy hours a week. In the 2003/2004 financial year, her gross earnings were $62,349 working for Filiatra, as well as the first defendant.
391       In my view, as a result of both her Chronic Pain Syndrome and also her Major Depressive Disorder, the plaintiff does not have a capacity for suitable employment and is effectively unemployable.
392       I am satisfied therefore that the loss of earning capacity consequences of the plaintiff’s mental impairment are severe.

Loss of Earning Capacity
393       Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
394       The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i) “without injury” earnings; and
(ii) “after injury” earnings.
395       The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
396       “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
397       It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
398       The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 70.
399       I am therefore required to determine a “without injury” earnings figure.
400       Counsel for the plaintiff submitted that the plaintiff was unemployable. However, if one looked at the plaintiff’s pre-injury earnings, unless she had the capacity to earn in excess of $726 per week, she established the requisite loss of forty per cent.
401       Counsel for the defendants did not put wage figures, submitting that the plaintiff could not establish her condition was permanent.
402       The consensus of recent medical opinion is that the plaintiff does not have a capacity for suitable employment due to her diagnosed psychiatric illness.
403       There was some suggestion following earlier orthopaedic assessments by Professor Marshall in 2006, Dr Rowe in 2007 and Mr Shannon and Mr Polke in 2008, that the plaintiff had capacity for restricted physical duties. Further, in 2007, Dr Botvinik considered the plaintiff was not totally incapacitated from a purely psychiatric point of view.
404       However, examiners since 2008 have been less optimistic about a return to work. In December 2008, Dr Adlard confirmed, given the plaintiff’s perception of chronic pain, it was unlikely she could work and her depressive symptoms were such that these would stop her working anyway. Dr Paoletti then thought the plaintiff’s current level of psychiatric symptoms precluded all work, a view shared by Dr Castle. Mr Brearley also thought the plaintiff had no current work capacity due to her Chronic Pain Syndrome.
405       On 4 May 2009, the Medical Panel found, as a result of her Major Depressive Disorder with traumatisation features and a Chronic Pain Disorder associated with a medical condition and psychological factors, and a Panic Disorder relevant to the alleged anxiety and depression injury, the plaintiff was incapacitated for all work and there was no employment to which she was currently suited. The Panel considered that situation was permanent.
406       In June 2011, Dr Jager thought the plaintiff was unfit for all duties due to the severity of her condition. Due to the longevity of her symptoms, he greatly doubted whether she would ever return to work.
407       As of February 2008, Mr Flaim thought the plaintiff had no employment capacity and that situation was permanent. He noted, given the fact the plaintiff had minimal education, that she had difficulty writing in her own language and could not write in English and had always done physically demanding work, including twelve years of work with Spotless, he considered it was highly likely she would remain permanently unemployed. This view was not challenged in cross examination.
408       In March 2011, taking into account the plaintiff’s limited work experience, significant language problems, range of psychiatric symptoms and the fact she had not worked for a number of years, Dr Strauss believed she was unemployable and that from a purely psychiatric point of view, she seemed to be totally and permanently incapacitated.

409 In July 2011, Dr Weissman thought the plaintiff was clearly totally incapacitated to perform her pre-injury work on purely psychiatric grounds alone. He also thought she clearly had no capacity to perform so called suitable alternative duties and therefore on purely psychiatric grounds alone, he considered the plaintiff had no psychiatric capacity for work indefinitely
410       In August 2011, Mr Stojcevski concluded the plaintiff’s incapacity for return to pre-injury employment was related to the work place incident and in his view she was not capable of returning to her pre-injury role now or in the foreseeable future and he could not conceive of an alternative occupation to which the plaintiff was suited.
411       Whilst Work Focus, in February 2008, identified the jobs of sewing machinist, cleaner light industry and product controller as suitable for the plaintiff, Ms Wilkinson, in her recent vocational assessment in July 2011, concluded that the plaintiff’s current physical limitations, depressive symptoms and other barriers such as her reduced reliability and productivity, physically demanding employment history, limited English skills, length of unemployment and lack of sedentary skills would prevent her from returning to any form of employment now and in the foreseeable future.
412 Taking into account all the evidence, I am satisfied that the plaintiff does not have a capacity for suitable employment and, accordingly, she has established that she has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
413       I am also required to consider matters of rehabilitation and retraining pursuant to subsection (g).
414       Some medical examiners have commented in this regard.
415       In 2008, Dr Paoletti thought that in an ideal world the plaintiff should have a capacity for rehabilitation into modified duties; however, social factors such as her age and level of education would limit the options.
416       Based on the plaintiff’s current presentation in June 2011, Dr Jager thought she was unfit to undertake rehabilitation or retraining, a view shared by Mr King in 2011 who thought retraining was not a practical option due to the plaintiff’s severe psychological overlay.
417       In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by her that would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
418       As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: see Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.

419 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.

- - -

Pain
66	The plaintiff deposed in 2010 that she continued to suffer pain in her right ankle, mainly on the side, and also in the right leg up to her hip. She also had pain in her right shoulder radiating into the right arm with numbness and pins and needles and also pain in the low back. Further, she continued to suffer severe headaches.
67	If she stood or sat for too long, her right leg went numb and the pain increased. Any physical activity increased the pain in the areas on the right side of her body that were hurt in the fall. She then continued to rely on a walking stick and the pain in the right side of her body had not improved and the headaches were gradually getting worse.
68	At the present times, the plaintiff continues to suffer from pain in her right ankle, back and right shoulder and she continues to get headaches and migraines. She had headaches before the incident but her headaches since that time have been worse.
69	In cross examination, the plaintiff described her symptoms are now in the area of the fracture of the ankle, her right leg feels numb and stiff right up to the hip, and she experiences pain in the hip, back and also the right shoulder and feels as if her whole right side is painful. There is some numbness in her face where she fell and also numbness in her mouth. She has numbness in the toes in her right foot and also the fingers in her right hand.
70	The plaintiff’s pain varies. Sometimes she feels as if her whole right side is painful and at other times, it is painful in specific areas. Sometimes she feels better and thinks she can do a lot of things but then the pain increases and then she has to go to her bedroom and lie down. She did not think she could work three hours a day or five hours a day three days a week.
71	In cross examination, the plaintiff agreed she has a problem with her bowels and bladder since the incident.

[2011] VCC 1475

10 October 2011