Stewart (a pseudonym) v Peregrine Industries Pty Ltd
[2016] VCC 949
•8 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-##-####
| LILIAN STEWART (A PSEUDONYM) | Plaintiff |
| v | |
| PEREGRINE INDUSTRIES PTY LTD (ABN 52 078 677 826) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 31 August 2015 and 1 September 2015 | |
DATE OF JUDGMENT: | 8 July 2016 | |
CASE MAY BE CITED AS: | Stewart (a pseudonym) v Peregrine Industries Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 949 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – plaintiff worked as a manual labourer for the first defendant – plaintiff developed a neck injury over the course of her employment – plaintiff’s neck injury required major surgery – plaintiff sought leave to bring common law proceedings against the first defendant to recover pain and suffering damages and pecuniary loss damages – the first defendant consented to the grant of leave in respect of pain and suffering damages, but opposed the application in respect of economic loss – leave granted to the plaintiff to bring common law proceedings to recover pain and suffering damages against the first defendant – whether the plaintiff has satisfied the Court, on the balance of probabilities, that as a consequence of her injury, she has suffered a loss of earning capacity of 40 per centum or more.
ESTOPPEL – issue estoppel – whether defendants estopped from adducing evidence and asserting facts that are contrary to the defendants’ consent to leave being granted to the plaintiff to bring common law proceedings to recover pain and suffering damages in respect of her serious injury.
Legislation Cited: Accident Compensation Act 1985; Evidence Act 2008 (Vic), s135, s136.
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries & Anor v Poljak [1992] 2 VR 129; Katanas v Transport Accident Commission [2016] VSCA 140; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Ansett Australia Ltd v Taylor [2006] VSCA 171; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; R v Lao (2002) 5 VR; Talha v Minister for Immigration and Border Protection [2015] FCAFC 115; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464; Carl Zeiss Stiftung v Rayner & Keeler Ltd[No 2] [1967] 1 C 853; Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2015] VSC 515; Quarmby v Qasair Investments Pty Ltd [2014] TASFC 11; Kuligowski v Metrobus (2004) 220 CLR 363; Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; Batrouney v Forster [2015] VSC 230; Dean's Pty Ltd v Laratae & Anor [2015] VSC 341; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
Judgment: Court satisfied that the plaintiff has established she has a loss of earning capacity of 40 per centum or more – Court satisfied, on the balance of probabilities, that the loss of earning capacity consequences of the plaintiff’s permanent serious impairment or loss of a body function and permanent severe mental or permanent severe behavioural disturbance or disorder is “serious”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr S Smith | Slater & Gordon Ltd Lawyers |
| For the Defendants | Mr E Makowski | Russell Kennedy |
Table of Contents
The application.................................................................................................................................. 1
Order by consent.............................................................................................................................. 1
Uncontroversial facts................................................................................................................... 1
The issues............................................................................................................................................ 2
Summary of findings........................................................................................................................ 3
Statutory framework and applicable legal principles....................................................... 4
The hearing......................................................................................................................................... 6
The evidence........................................................................................................................................ 6
Chronology........................................................................................................................................ 9
The Plaintiff’s evidence................................................................................................................ 46
First affidavit................................................................................................................................. 46
Second affidavit........................................................................................................................... 50
Evidence-in-chief......................................................................................................................... 52
Cross-examination...................................................................................................................... 52
Re-examination............................................................................................................................ 58
The submissions.............................................................................................................................. 58
The Plaintiff’s credibility.............................................................................................................. 58
Admissions................................................................................................................................... 62
Findings regarding the Plaintiff’s credibility.............................................................................. 65
Analysis of covert surveillance........................................................................................... 66
What is the “serious injury” under sub-paragraphs (a) and (c) of the definition of “serious injury” contained in Section 134AB(37) of the Act?........................................................................... 72
What is the permanent serious impairment or loss of a body function under sub-
paragraph (a) of the definition of serious injury contained in section 134AB(37)?.............. 75
What are the economic loss consequences of the permanent serious impairment
or loss of a body function?.......................................................................................................... 78
Expert evidence........................................................................................................................... 79
Treating healthcare professionals...................................................................................... 79
Medico-legal reports............................................................................................................. 80Jobs proposed as constituting suitable alternative employment............................................ 80
Relevance of the ANZSCO Code.............................................................................................. 81
1Inquiry Officer/Customer Service Officer – ANZSCO Code 5412-11....................... 84
2Product Examiner – ANZSCO Code 8393-11............................................................ 86
3Call Centre Operator – ANZSCO Code 5411-12....................................................... 90
4Packer – ANZSCO Code 8321-99.............................................................................. 90
5Assembler – ANZSCO Code 8322-11........................................................................ 92
6Process Operator (Factory Process Worker) – ANZSCO Code 8399-99.............. 94
Conclusion regarding suitable alternative employment........................................................... 95
Conclusion – has the plaintiff established that as a consequence of her
permanent serious impairment or loss of a body function she has a loss
of earning capacity of 40 per cent or more?...................................................................... 95What is the permanent severe mental or permanent severe behavioural disturbance
or disorder under sub-paragraph (c) of the definition of serious injury contained in
section 134AB(37)?.................................................................................................................... 96
Medico-legal reports............................................................................................................. 99
Conclusion – permanent severe mental or permanent severe behavioural
disturbance or disorder...................................................................................................... 100What are the economic loss consequences of the permanent severe mental or
permanent severe behavioural disturbance or disorder?..................................................... 100
Jobs proposed as constituting suitable alternative employment.......................................... 101
1Inquiry Officer/Customer Service Officer – ANZSCO Code 5412-11.................... 101
2Product Examiner – ANZSCO Code 8393-11.......................................................... 103
3Call Centre Operator – ANZSCO Code 5411-12..................................................... 104
4Packer – ANZSCO Code 8321-99............................................................................ 104
5Assembler – ANZSCO Code 8322-11...................................................................... 105
6Process Operator (Factory Process Worker) – ANZSCO Code 8399-99............ 105
Conclusion regarding suitable alternative employment......................................................... 106
Conclusion – has the Plaintiff established that as a consequence of her
permanent severe mental or permanent severe behavioural disturbance
or disorder she has a loss of earning capacity of 40 per cent or more?..................... 106
Estoppel......................................................................................................................................... 108
Application to exclude evidence that is inconsistent with the defendants’ consent
to the grant of leave................................................................................................................... 110
Certificate of Opinion of the Medical Panel....................................................................... 111
Orders............................................................................................................................................. 112
Appendices
Annexure “A” - Plaintiff’s Outline of Submissions
Annexure “B” - Defendants’ Outline of Submissions
Annexure “C” - Plaintiff’s Further Outline of Submissions
HER HONOUR:
The application
1 The plaintiff, Lilian Stewart,[1] worked as a manual labourer for the first defendant, Peregrine Industries Pty Ltd (“the first defendant”), manufacturing air conditioning units. Over the course of her employment, she developed an injury to her neck that required major surgery. She has not returned to any form of paid employment since undergoing that operation.
[1]Lilian Stewart is a pseudonym
2 The plaintiff now seeks leave under s134AB of the Accident Compensation Act 1985 (“the Act”) to bring common law proceedings against the defendant to recover both pain and suffering damages and pecuniary loss damages. The defendant consents to the grant of leave in respect of pain and suffering damages but opposes the application in respect of economic loss.
Order by consent
3 Under s134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings to recover pain and suffering damages against the defendants in respect of her permanent serious impairment or loss of body function and in respect of her permanent severe mental or permanent severe behavioural disturbance or disorder arising from, or in the course of, her employment with the first defendant.
Uncontroversial facts
4 It is not in controversy that the plaintiff was employed by the defendant, that her work consisted of repetitive and difficult manual labour, and that in the course of her employment and as a result of it, the plaintiff sustained “serious injury” as defined in s134AB(37)(a) and (c) of the Act.[2]
[2]Transcript (“T”) 35
5 By letter dated 16 July 2009, the defendant terminated the plaintiff’s employment as of 10 July 2009:
“… as advised by QBE Workers’ Compensation Insurance (Vic) Limited due to your ongoing inability to be able to perform the work for which you were employed.
… .
We are extremely disappointed that you can no longer work for us but suffice to say, the Directors of … [the first defendant] have been delighted with your work ethic and we thank you for your many years of service with us. We sincerely wish you well for the future and hope that you will soon find a position which better suits your needs.”[3]
[3]Exhibit C
6 Because of her physical injury, on 29 August 2009, the plaintiff underwent cervical fusion surgery and an anterior cervical discectomy. In this surgery, a C5-6 discectomy was performed. Decompression was undertaken and a Cervios implant was installed and reinforced with an Atlantis plate, internally fixed with 13-millimetre variable screws.
7 The plaintiff also had referred symptoms in her right shoulder and arm, which were treated in various other procedures.
8 In addition to her various physical injuries, the plaintiff has suffered mental or behavioural disturbances or disorders, which I shall describe in more detail later.
9 The defendants have conducted surveillance of the plaintiff. Only some of the covert video footage taken of the plaintiff was played to the Court. The plaintiff was cross-examined about her activities as depicted in those films.[4] Otherwise, the defendants admitted that surveillance was conducted of the plaintiff on nineteen occasions (four occasions in 2011, three occasions in 2012, two occasions in 2014 and ten occasions in 2015).[5]
[4]Commencing at T43
[5]See exhibit GG that sets out the dates and periods of covert surveillance conducted of the plaintiff
The issues
10 The real question for determination is whether the plaintiff has satisfied the Court, on the balance of probabilities, that as a consequence of her injury, she has suffered a loss of earning capacity of 40 per cent or more, calculated in accordance with s134AB of the Act.
11 The defendants seek to rely on evidence that the plaintiff alleges traverses the admissions (express and implied) inherent in the defendants’ consent to the grant of leave in respect of the pain and suffering aspects of the plaintiff’s application, both in terms of her physical loss or impairment of a body function and in terms of her mental and/or behavioural disturbances and disorders. The plaintiff submits that the defendants are estopped from adducing evidence that tends to show that the consequence of the plaintiff’s injury, whether under sub-paragraph (a) or (c) of the definition of “serious injury”, falls short of the statutory threshold. In the alternative, the plaintiff submits that such evidence should be either excluded in the exercise of discretion under s135 of the Evidence Act 2008 or, in the alternative, its use should be limited under s136 of that Act.
12 On the other hand, the defendants do not directly challenge the fact that admissions were made. However, the defendants deny any estoppel arises and submit that the evidence is relevant to the issue of whether the plaintiff has a capacity to perform suitable alternative employment.[6]
[6]Note the discussion at T35 – 36 where Mr Makowski states he will not be traversing the admission and all that is inherent in it. See also T38 – 40. The defendants were given an opportunity to explain the extent of the admission but declined to do so: see T50 – 53.
Summary of findings
13 For the reasons set out below, I am not satisfied that any estoppel arises. I find that the challenged evidence (that is to say evidence that tends to show that the consequence of the plaintiff’s injury, whether under sub-paragraph (a) or (c) of the definition of “serious injury”, falls short of the statutory threshold) is relevant and is admissible. I find no basis to exclude or limit the use of the evidence in the exercise of discretion.
14 After considering the totality of the evidence and the inferences to be drawn from it, I conclude that the plaintiff is a credible witness and that she has established all of the elements necessary to justify granting her leave to bring common law proceedings to recover pecuniary loss damages against the first defendant.
Statutory framework and applicable legal principles
15 The application for leave is made under s134AB(16) of the Act.
16 Section 134AB(19) prohibits the Court from granting leave under ss(16)(b) –
“… unless it is satisfied on the balance of probabilities that the injury is a serious injury.”
17 The burden of proof rests with the plaintiff.
18 “Serious injury” is defined in section 134AB(37) to mean:
“(a) permanent serious impairment or loss of a body function; or
….
(c)permanent severe mental or permanent severe behavioural disturbance or disorder”
19 The following provisions as contained in s134AB(38) are also relevant to the present case:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, … or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, …. or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function … shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function…. as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;[7]
[7]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraph [15]; Humphries & Anor v Poljak [1992] 2 VR 129 at 140 – 1
(d)a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;[8]
[8]See the recent decision of Katanas v Transport Accident Commission [2016] VSCA 140
[LOSS OF EARNING CAPACITY:]
(e)where a worker relies upon paragraph (a), …. or (c) of the definition of serious injury in subsection (37), …. a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)... at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured …. as set out in paragraph (f); and
(ii)the worker …. will after the date …. of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
[PSYCHOLOGICAL OR PSYCHIATRIC CONSEQUENCES RELEVANCE]
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
[DATE OF ASSESSMENT] –
(j)the assessment of serious injury shall be made at the time that the application is heard by the court … .”
The hearing
20 The hearing commenced before me on 18 August 2015 and continued on 19 and 31 August and 1 September 2015.
21 Mr Mighell QC appeared with Mr S Smith on behalf of the plaintiff. Mr Makowski appeared on behalf of the defendant.
The evidence
22 Only one witness was required to give oral evidence for the purposes of cross-examination, namely, the plaintiff.
23 Otherwise, the parties each tendered a number of exhibits.
24 The plaintiff tendered the following exhibits:
Exhibit Description A Plaintiff’s Affidavit sworn 18 September 2014 B Plaintiff’s Affidavit sworn 17 July 2015 C Copy letter of termination of the plaintiff’s employment dated 16 July 2009 D Affidavit of the Plaintiff’s son sworn 17 July 2015 E Affidavit of the Plaintiff’s son sworn 18 July 2015 F Plaintiff’s Court Book under Heading 5, Item 3 – MRI cervical spine dated 30 September 2008; Item 5 – MRI cervical spine dated 26 August 2009; Item 6 – Cervical spine dated 27 August 2009; Item 7 – Cervical spine dated 5 November 2009
G Medical report from Dr A Atkin dated 6 January 2009 H Letter from Dr A Atkin dated 29 June 2009 J Medical report from Dr A Atkin dated 1 July 2010 K Medical report from Dr A Atkin dated 18 June 2012 L Medical report from Dr A Atkin dated 27 April 2015 M Medical report from Dr A Atkin dated 14 August 2015 N Medical report from Professor G Davis dated 18 November 2008 O Medical report from Professor G Davis dated 16 June 2009 P Operation note dated 26 August 2009 Q Medical report from Professor G Davis dated 6 October 2009 R Medical report from Dr T Lim dated 9 November 2009 S Medical report from Dr T Lim dated 2 October 2011 T Medical report from Dr S K Vallipuram undated U Medical report from Ms J Fahey dated 10 June 2010 V Medical report from Ms J Fahey dated 1 February 2011 W Medical report from Mr T Nguyen dated 19 February 2013 X Medical report from Dr A Mabo dated 11 May 2013 Y Medical report from Mr J F O’Brien dated 8 July 2015 Z Medical report from Mr D Brownbill dated 24 June 2015 AA Medical report from Dr A Sillcock dated 10 June 2015 BB Medical report from Dr N Elliot dated 24 June 2015 CC Medical report from Dr A Kaplan dated 15 April 2015 DD Employment assessment report from Ms D Forster, Flexi Personnel, dated 16 July 2015 EE Letter from Ms D Forster, Flexi Personnel, dated 20 July 2015 FF Summary of Income Taxation Returns GG Admissions regarding surveillance of the plaintiff conducted on behalf of the defendants HH Plaintiff’s written submissions and plaintiff’s further final submissions
25 The defendant tendered the following exhibits:
Exhibit Description One Copy letter dated 1 December 2011 of Defendants’ Court Book page 161B
2 Video surveillance conducted of the plaintiff on 11 December 2011 and 9 December 2011
3 Video surveillance conducted of the plaintiff on 21 November 2014
4 Video surveillance conducted of the plaintiff dated 2 April 2015 and 11 April 2015
5 Medical report from Dr Angela Atkin dated 3 October 2012
6 Medical report from Dr Angela Atkin dated 7 November 2012
7 Medical report from Dr Angela Atkin dated 12 June 2013
8 Medical report from Dr Angela Atkin dated 30 April 2014
9 Medical report from Professor Gavin Davis dated 26 August 2009
10 Medical report from Professor Gavin Davis dated 17 November 2009
11 Medical report from Professor Gavin Davis dated 6 September 2011 x 2
12 Medical report from Ms Naomi Elliot Davis dated 20 August 2013
13 Medical report from Mr Richard McArthur dated 28 May 2012
14 Medical report from Mr Richard McArthur dated 15 April 2013
15 Medical report from Dr Clayton Thomas dated 5 August 2012
16 Medical report from Dr Clayton Thomas dated 30 April 2013
17 Medical report from Professor Ivor Jones dated 5 March 2013
18 Medical report from Professor Ivor Jones dated 11 April 2013
19
Medical report from Professor Ivor Jones dated 15 April 201320 Medical report from Mr Michael Shannon dated 17 March 2014
21 Medical Panel Certificate of Opinion dated 18 December 2013
22 healthe.work NES Vocational Assessment Report dated 6 August 2009
23 healthe.work NES Vocational Assessment Report dated 12 October 2010
24 Work Focus Australia NES Vocational Assessment Report dated 4 April 2013
25 Work Focus Australia NES Job Seeker Plan dated 15 May 2013
26 Work Focus Australia NES Week 8 Job Seeker Plan dated 27 June 2013
27 Work Focus Australia Vocational Re-Education Assessment Report dated 28 June 2013
28 Work Focus Australia NES Week 16 Job Seeker Plan dated 23 August 2013
29 Work Focus Australia NES Worker Independent Job Seeker Plan dated 30 October 2013
30 Letter from Peregrine Industries Pty Ltd to QBE dated 14 August 2008
31 Extract of clinical records from the plaintiff’s general practitioner between 1 January 2011 and 30 December 2013
32 Defendants’ final written submissions
Chronology
26 Because of the issues raised, I have analysed the pieces of evidence individually, and as a whole, to determine how they fit into the overall chronology.
Date Event Reference 16 July 2008 Worker’s Claim Form. 14 August 2008 Copy one page of facsimile from first defendant to unnamed recipient.
It lists the plaintiff’s duties at the time of her injury.
The duties appear to be consistent with some of those listed as “product examiner”.
Exhibit 30
The facsimile appears to be incomplete and is not signed. The facsimile printout at the top records the document as page 5
30 September 2008 Imaging (MRI) cervical spine (findings not in issue). Exhibit F 18 November 2008 Professor Davis writes to Mr C Atkins, who has referred the plaintiff. He notes that the clinical picture is complicated because of cervical spondylosis and the right C6 radiculopathy, in addition to the right ulnar neuropathy:
“… Given the weakness and numbness in the hand, there is no doubt that … [the plaintiff] requires surgical correction of both problems … I recommend that she undergo right ulnar nerve submuscular transposition in addition to a C5-6 anterior cervical decompression and fusion. Although there are degenerative changes involving multiple cervical discs, it is the C5-6 disc that is causing her symptoms and therefore this is the one that should be operated on.”
Exhibit N 6 January 2009 Dr Angela Atkin, the plaintiff’s treating general practitioner, refers the plaintiff to Ms Carmine Vinci, physiotherapist, for assistance with the management of her neck pain. Dr Atkin notes that the plaintiff has developed symptoms in her right hand and she had a ganglion in the wrist but treatment of this problem did not fix her symptoms, which have in fact progressed. The plaintiff has cervical spine problems and at this time, is awaiting surgery, but her muscle wasting is progressive and her pain is impacting on her sleep.
Dr Atkin seeks assistance in maintaining the plaintiff’s movement in her right arm and reducing the wasting.
Exhibit G 16 June 2009 Professor Davis writes to Mr Christopher Atkin, general surgeon, following the plaintiff’s recent ulnar nerve submuscular transposition. He notes the improvement post operatively and recommends hand therapy to enhance recovery.
Exhibit O 29 June 2009 Dr Atkin, the plaintiff’s treating general practitioner, refers the plaintiff to Professor Gavin Davis, neurosurgeon, for opinion regarding the plaintiff’s problem with persistent pain on the inside of the right arm and at the back of the neck on the right. Dr Atkin notes that the plaintiff is sleeping poorly and is complaining of constant pain in the right shoulder and neck around C5, C6 and C7.
Dr Atkin notes that the plaintiff has pain in the right lower neck on movement of her right arm above 75 degrees and even on elevation of the left arm above shoulder height “pulling and burning on the right side of the midline”.
Current medications include:
§ Temaze 10 milligrams, one nocte
§ Lexapro 20-milligram tablets one daily
§ Panadeine Forte tablets one nocte
§ Mobic 15-milligram capsules one mane.
Exhibit H 16 July 2009 The plaintiff’s employment is terminated because of her injury. Exhibit C 6 August 2009 healthe.work NES vocational assessment report.
The author, Mr Iacovino, notes that the plaintiff is well motivated to work and to participate in rehabilitation. She has some transferrable skills, but these mainly relate to jobs that require moderate physical exertion. The plaintiff expresses interest in working with animals, but in order to do this she would need to obtain qualifications and be able to tolerate the physical demands inherent in such work.
The author notes that any job recommendations at this stage are premature given the current physical restrictions placed on the plaintiff. Moreover, she is awaiting surgery, and much will depend on its outcome. The author recommends further assessment once surgery and other treatments have been completed.
Exhibit 22 26 August 2009 Operation performed by Professor Davis. Fusion, discectomy, insertion of cage and plate. Exhibit P 26 August 2009 Imaging report cervical spine (findings not in issue). Exhibit F 26 August 2009 Professor Davis writes to Dr Atkin, the plaintiff’s general practitioner, to confirm that the C5-6 anterior cervical discectomy and fusion surgery was performed on the plaintiff on 26 August 2009. “At operation all proceeded well.” Exhibit 9 27 August 2009 Imaging report following surgery:
“Post ACDF C5/C6 bone alignment is normal with good positioning of the intervertebral cage device. No complications are seen. There is moderate narrowing of the C4/C5 intervertebral disc with anterior endplate osteophytes.”
Exhibit F 5 November 2009 Imaging report following surgery:
“An anterior spinal fusion has been performed. A metallic plate and screws transfixes the anterior aspect of the C5/6 vertebral body. A disc spacer is in situ at the C5/6 level. The bones are in good alignment.
Moderate degenerative changes are present at the C4/5 level with partial loss of disc space height and osteophyte formation including mild posterior osteophyte formation.
The remaining disc spaces are normal.
Small bilateral bony cervical ribs are present, larger on the right side.”
Exhibit F 9 November 2009 Dr Lim, consultant in rehabilitation and pain medicine, reports to Professor Davis.
He considers the plaintiff to be “a pleasant and cooperative woman”.
On examination, although her posture was reasonably symmetrical, the plaintiff had increased tension in her right upper fibres of trapezius when compared to the left on palpation. She had muscular trigger points distributed regionally and affecting mainly the right paracervical/shoulder girdle and upper limb muscles, reflecting the development of a degree of central sensitisation, which Dr Lim assessed as being one of the major contributors to her pain and its persistence. He assessed the plaintiff’s right upper limb power at about grade 3+4/5 when compared to the left. In particular, she had quite a weak hand grip for what was nominally, a dominant side.
Dr Lim diagnosed the plaintiff as suffering a –
“… chronic or persistent pain condition as a consequence of what would seem to have been overuse injury(s) sustained as a result of pursuing her employment …
…
She had developed a significant degree of central sensitisation which was now one of the major contributors to her chronic or persistent pain condition.”
Dr Lim explains that central sensitisation –
“… is a scientifically-proven, organic change in the central nervous system (CNS) pain pathways in reaction to the original injury. This means that effectively:
Ø Performing one’s usual activities can cause pain due to the lowering of the previously normal pain threshold and
Ø Then amplified all out of proportion
Ø There can be a spontaneous pain generation including flares of increased pain i.e. pain generated from the CNS pain pathways and not due to ongoing injury consistent with the phantom limb pain after amputation model
Ø That other parts of the body can develop pain even though those parts may not have been previously injured or been in pain, due to the expansion of the pain-sensitised fields within the CNS.
Thus once central sensitisation is established within one’s pain system, then the pain sufferer is primed not only to suffer chronic or persistent pain well into the future, but also prone to experience spontaneous flares of increased pain, independent of any other factors or pathology.
Unfortunately, at this moment in time, there is no cure for central sensitisation and therefore, no cure to chronic pain. However, there are ways of desensitisation that can be taught to the chronic pain sufferer through the self-treatment/self-management process.”
Dr Lim considers the plaintiff would benefit from attending a pain management program at North-Eastern Rehabilitation Centre (NERC) –
“… with the aims of:
· Reducing her pain levels and learning about how to become her own pain therapist;
· Increasing right upper limb strength / endurance / function;
· Exploring future vocation.”
Exhibits R and S 17 November 2009 Professor Davis reports to Dr Atkin, the plaintiff’s general practitioner, that a repeat x‑ray of the plaintiff’s cervical spine demonstrates “an excellent post-operative radiological result”. He notes that the plaintiff will continue rehabilitation with Dr Lim. Exhibit 10 17 December 2009 Jennifer Fahey, psychologist at NERC, commences treating the plaintiff. Dr Lim referred the plaintiff to her.
Between that date and 10 June 2010, nine sessions are conducted.
Exhibit U 20 May 2010 Dr Lim reviews the plaintiff and reports to the insurer. At this stage, the plaintiff is a little over halfway through her pain management program at NERC. However, “… due to the persistence and severity of paracervical / right shoulder girdle muscular hyperirritability, her progress had been minimal. … .”
Dr Lim notes that the team involved in the plaintiff’s pain management program “… had not been able to fault her commitment …” and her lack of progress “… reflected her degree of pain sensitisation”.
Dr Lim suspends the program until a ketamine infusion can be arranged.
Exhibit S 10 June 2010 Jennifer Fahey, psychologist at NERC, reports to the insurer.
She has now treated the plaintiff during nine treatment sessions.
She diagnoses the plaintiff as suffering a Chronic Pain Disorder associated with both psychological factors and a General medical condition (DSM-IV 307.89), Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-IV 309.28).
Ms Fahey notes that the plaintiff suffers with severe chronic pain problems that have impacted on her overall quality of life and capacity to work:
“… She has responded to the associated physical restrictions and changed circumstances with adjustment problems including depression, anxiety and avoidance.”
Ms Fahey considers that from –
“… a psychological perspective … [the plaintiff] has the capacity to work without restrictions and a return to work would be clearly beneficial to her, providing her with increased purpose and structure. However, physically, she continues to be extremely limited by chronic pain …
Potential obstacles to employment are length of time out of the workforce, her age and the significant physical restrictions.
… Considering the physical nature of … [the plaintiff’s] pre-injury work it seems highly unlikely that she will be able to return to her pre-injury duties. … .”
The plaintiff does not have a present capacity to participate in vocational assistance and is awaiting further treatment (ketamine infusion).
Exhibit U 1 July 2010 Dr Atkin, the plaintiff’s treating general practitioner, reports to the insurer.
She notes the plaintiff’s current diagnosis of persistent cervical discogenic pain, right hand pain and depression, none of which have resolved after surgery on her cervical spine performed on 26 August 2009. Dr Atkin notes that the plaintiff has ongoing pain in her shoulders and the back of her neck, especially when she lifts her arms to do tasks such as hanging out washing or vacuuming, and has pain in her hands when she does any repetitive tasks. The plaintiff struggles emotionally since her initial problem of a ganglion in her right hand and the resultant limitations on her activity.
Dr Atkin describes the plaintiff’s prognosis for work as poor –
“… because her pain is complicated by depression. Her capacity to work again will depend on her getting her pain resolved as much as possible and on treating the resultant depression.
She has done the same job for many years and has little capacity to generalize her skill to any other job as the job depended entirely on her using a pair of heavy cutting shears with her right hand. She may, ultimately have a capacity for a light job on an assembly line but this would have to be a job that allows her to have frequent rest periods. She does not have her pain controlled enough to allow this to happen yet but the pain may improve after the proposed inpatient treatment at Epworth Rehabilitation … .
… [The plaintiff] has no capacity to participate in Vocational assistance at the moment because of ongoing pain issues.”
Exhibit J 31 July – 9 August 2010 The plaintiff is admitted to the Bellbird Hospital for a ketamine infusion under the care of Dr S K Vallipuram, specialist anaesthetist and pain medicine.
On examination, the plaintiff’s right arm movement was limited and there was some blotchiness of the hand. She was unable to grip with her right hand.
Following the infusion, she was transferred to NERC with the following medications:
· Pristiq 50 milligrams mane
· Temazepam 10 – 20 milligrams nocte
· Seroquel (25-milligram tabs) ½ - 1 nocte
· Clonidine (100-microgram tab) ½ nocte
· Phenergan (25-milligram tabs) ½ bd prn
· Ketamine subcutaneous infusion (4mg/ml) 28mg (7 mls/hr).
Exhibit T 9 August – 21 August 2010 The plaintiff is admitted as an inpatient following a ketamine infusion at the Bellbird Hospital, as per Dr Lim’s recommendation made 20 May 2010.
During the period of treatment in hospital, persistent muscle hyperirritability had “unlocked” and the plaintiff was able to move her neck and shoulder girdle muscles with increased range of motion and reduced pain levels. However, her mood deteriorated and she became increasingly anxious with elements of panic attacks requiring referral to Dr Naomi Elliot, NERC psychiatrist.
Exhibit S 17 August 2010 Dr Naomi Elliot, treating consultant psychiatrist, commences treating the plaintiff. Exhibit BB 2 September 2010 Dr Lim reviews the plaintiff. She is still anxious and complaining of severe back pain. However, the improvement in her posture and neck/shoulder girdle ranges of motion had been maintained. Exhibit S 12 October 2010 healthe.work NES vocational assessment report.
The author, Ms Loredana Pischettola, rehabilitation consultant, notes the injury as “Right wrist injury” and identifies suitable employment options, in order of priority:
1 Customer Service Assistant
2 Bank Worker
3 Call Centre Operator
4 General Clerk
5 Product Examiner.
The author states that the plaintiff reported sustaining a right wrist injury during her employment with the defendant. Consequently, she was diagnosed with right ulnar neuritis and neuropathy, and cervical radiculopathy at C3-6. The injury has impacted the plaintiff’s right hand/upper limb, as well as her right shoulder and neck area. Cervical fusion was conducted in 2009 and nerve relocation of her right elbow in May 2009. In August 2010, ketamine injections were administered; however, these did not assist with her pain symptoms.
The author lists physical tolerances and treatment and medication as reported by the plaintiff, although in her evidence, the plaintiff rejected the accuracy of the assertions attributed to her.
The author refers to medical opinion in the form of a Certificate of Capacity by Dr Atkin dated 22 September 2010, a psychiatric report by Dr Rod Farnbach, psychiatrist, dated 19 July 2010, and specialist reports from Mr Jonathan Hooper, orthopaedic surgeon, dated 13 July 2010 and 4 August 2010.
After identifying transferable skills and abilities, the author explains why the identified suitable employment options are appropriate, but notes that the plaintiff needs training in “computer/office skills course”:
1 Customer Service Assistant – ANZSCO Code 5412-11
The position is described as:
“Respond to personal, written and telephone inquiries and complaints about the organisation’s goods and services, provide information and refer people to other sources.”
Qualification level is Year 9 or 10 and the physical demands are described as “sedentary”.
English competency required:
Speaking: Good
Listening: Good
Reading: Good
Writing: Good.
2 Bank Worker – ANZSCO Code: 5521-11
The position is described as:
“receive deposits and pay out money in a financial or commercial institution, keep records of transactions, issue receipts and cash cheques.”
Qualification level is HSC/senior secondary.
The physical demands of the job are described as “sedentary”.
English competency required:
Speaking: average-upper range
Listening: average-upper range
Reading: average-upper range
Writing: average-upper range.
3 Call Centre Operator – ANZSCO Code 5411-12
The position is described as:
“answer customer telephone, Internet and email inquiries about goods and services, and promote the goods and services.”
Qualification level is Year 9 or 10
English competency required:
Speaking: good
Listening: good
Reading: good
Writing: good.
4 General Clerk – ANZSCO Code: 5311-11
The position is described as:
“Perform a range of clerical and administrative tasks.”
Qualification level is HSC/Senior Secondary.
The physical demands of the job are described as “sedentary”.
English competency required is:
Speaking: average-upper range
Listening: average-upper range
Reading: average-upper range
Writing: good.
5 Product Examiner – ANZSCO Code: 8393-11
The job is described as:
“Examine products to ensure conformity to specifications and standards of presentation and quality.”
No minimum education qualification level is required.
The physical demands of the job are described as “light”.
English competency required is:
Speaking: basic
Listening: basic
Reading: basic
Writing: basic.
Exhibit 23
Note that the job descriptions are summarised, presumably by the author. When the descriptions are compared to those given in exhibit 24, there is much in exhibit 23 that is not addressed, for example Product Examiner duties described in exhibit 24 includes:
“Take samples and measurements of products throughout the production process, from when raw materials are received from external suppliers,” but this is not addressed in exhibit 23.
21 October 2010 Dr Lim reviews the plaintiff and reports to the Accident Compensation Conciliation Service. Her condition had not changed since 21 October 2010. It seemed to Dr Lim –
“that as the physical component of her condition was normalising, her anxiety levels were reaching its peak. Therefore, the physical / functional therapy component of the program was not relevant but it was important that she continued to attend her psychiatrist / psychologist.”
The plaintiff reported to Dr Lim that she continued to experience pain but was able to manage it through the –
“… self-treatment process. She was starting to recommence ‘pottering’ in her garden but was aware that she does need to pace herself to ensure that she does remain functioning below her lowered, pain-sensitised pain threshold.”
Dr Lim did not consider that, as at this time, the plaintiff had any work capacity.
Exhibit S 27 January 2011 Dr Lim reviews the plaintiff. He finds her emotional state to have deteriorated somewhat, and it seemed to him that the plaintiff –
“… was entrenched in the chronic pain syndrome where her life remained totally focused on and dominated by the persistence of the pain she continued to experience which was reflected by ongoing physical disability reflecting her ongoing issue with accepting and then adjusting to living a life with changed circumstances i.e. living a life restricted by a chronic or persistent pain condition. As she remained centrally sensitised to pain, she was still experiencing fluctuating pain levels but reported continuing to self-treat to control her pain better. She also reported attempting home duties in a properly paced fashion. However, ‘old habits die hard’ and … [the plaintiff] did recognise that performing certain tasks in the ‘old way’ continued to cause pain exacerbation.”
The plaintiff reported to Dr Lim that WorkCover wanted her to return to some form of vocation, which was worrying her. Vocational assessment had indicated she had the capacity to perform administrative or clerical duties.
Dr Lim noted that his approach to the ongoing management of chronic pain –
“… is for the sufferer to find a meaningful occupation whether it be in paid or voluntary work capacity. The aim is to encourage the chronic pain sufferer to participate in more positive activities by reducing the amount of time available for them to continue to focus on the persistence of their pain through removing them from their pain reinforcing environment.”
Dr Lim considered the plaintiff to have a –
“… work capacity, albeit limited, so that she can perform like duties (scil. light duties) which allow for her to pace herself as required on a part-time basis no more than about 15 hours per week in either a paid or voluntary capacity.”
However, Dr Lim reported that at this stage, the plaintiff’s emotional state –
“… is still the priority. Thus, she was not as yet ready to address the meaningful occupation component of her pain rehabilitation programme. Therefore, she would need to continue to work with Dr Elliott.”
Exhibit S 1 February 2011 Ms Fahey, psychologist at NERC, reports to the insurer. She has now had 21 clinical contacts with the plaintiff.
Ms Faye notes that the plaintiff has been unable to adjust to her changed circumstances, and over the course of her pain program, she has remained anxious and depressed. Indeed, upon her return to NERC midway through the eight-week program, the plaintiff’s anxiety worsened.
The plaintiff continues to report constant pain in her neck, right arm and hand. Prior to her injury, the plaintiff led a busy and independent life. However, she has become demoralised by her changed physical capacity and personal losses, including loss of work and sense of identity. The plaintiff finds it increasingly difficult to occupy herself due to significant avoidance of pain aggravating activities and formerly enjoyed leisure pursuits. Her concentration –
“… has become increasingly impaired and she reported difficulty reading, doing crosswords and watching television.”
Ms Fahey confirms her previous diagnosis, noting that the plaintiff has been unable to adjust to her changed circumstances following a workplace injury. She suffers a Chronic Pain Disorder associated with both psychological factors and a general medical condition (DSM-IV 307.89) and Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-IV 309.28).
Regarding the plaintiff’s current capacity for pre-injury duties or any alternative suitable duties, Ms Fahey reports:
“From a psychological perspective … [the plaintiff] would benefit from returning to some form of work. If suitable duties could be found with regard to her physical restrictions, any return to work would need to be very gradual due to … [the plaintiff’s] psychological problems that include significantly impaired concentration and loss of confidence.
Physically, … [the plaintiff] continues to be extremely limited by chronic pain; …
Potential obstacles to employment are length of time out of the workforce, her age and the significant physical restrictions.
…
… [The plaintiff’s] coping capacity is fragile and the availability of professional support is a continuing recommendation for her.”
Exhibit V 26 May 2011 Dr Lim reviews the plaintiff.
Exhibit S 6 September 2011 Professor Davis reports to Dr Cronin (general practitioner at same practice as Dr Atkin) regarding his review of the plaintiff’s ulnar nerve symptoms. He considers the surgery to have been a complete success.
The plaintiff’s main complaint is of low-back pain and “hemi-body sensory change. …
…
… further surgery is … not required. The mainstay of treatment is ongoing support from her psychiatrist and pain management physician.”
Exhibit 11 2 October 2011 Dr Lim reports to Accident Compensation Conciliation Service.
Upon initial assessment on 9 November 2009, Dr Lim found the plaintiff to be “a pleasant and cooperative woman”.
The plaintiff was still attending her psychiatrist and psychologist.
Dr Lim considered that the plaintiff was –
“… doing … [as well as] she could, managing the aspects of her daily living assisted by her twenty year old son, who had become her official carer. … .
She seemed relatively house-bound in her pursuit of being meaningfully occupied – crossword puzzles, reading, grooming her cat, reflecting her degree of entrenchment in a Chronic Pain Syndrome.”
Dr Lim encouraged the plaintiff to remain as active as possible; however, he determined not to arrange any further reviews “as there is not much else that I can offer her.”
Regarding the issues raised, Dr Lim confirms his earlier diagnosis and history and the nexus between her condition and incapacity to her employment.
Dr Lim considers the plaintiff has a –
“… physical capacity for working in suitably assessed restricted duties in limited hours as noted above [self-paced light duties, on a part-time basis no more than about 15 hours per week on a paid or voluntary basis]. However, emotionally, she is still significantly affected and thus, the timing was not right at the last review … [of 26] May 2011.”
But for the emotional incapacity, Dr Lim considers the plaintiff should be able to perform light, office-based duties in very limited hours, described above.
Dr Lim considers the plaintiff’s ability to work will depend on her psychological/psychiatric state and defers to Dr Elliott, psychiatrist, in this regard.
Exhibit S 2 November 2011 Dr Atkin records in her clinical file:
“… Agoraphobia prevents … [the plaintiff] from doing office work … .”
Exhibit 31 1 December 2011 Plaintiff’s letter to insurer regarding her ongoing problems. Her son has typed the letter from the plaintiff’s handwritten notes.
The plaintiff lists her difficulties including having to sit up to sleep, waking frequently at night, not getting a full, uninterrupted night’s sleep and cramping in the back and hand. She frequently soils herself at night because she is in too much pain to get out of bed to use the toilet. Stretching her arm causes tingling on the tips of her fingers with pulling sensations and pain in her lower neck. She uses her left hand to brush her teeth as using her dominant right hand causes pain from her hand, up to her arm and through to her neck. She uses her left hand in most activities of daily living, including lifting a kettle or items more than a few kilograms. She has difficulty dressing herself. She cannot peel vegetables or cut meat with her right hand. She cannot hang out washing as she cannot reach up. If she attempts vacuuming, sweeping and like activities, she feels dizzy when she bends over. She can no longer enjoy fixing things or engaging in crafts such as knitting and crochet. She has difficulty walking up and down stairs. She cannot sit or stand for long periods of time and even going over speed humps in the car “sends a shudder” up her back to her neck. The limit on driving is approximately 20 to 30 minutes. Even using her left arm causes stress to her neck if she uses it too much. She relies on her son for everyday needs, even cutting up her dinner; however, she finds it difficult being dependent upon him. No longer being the independent person she once was has caused much stress.
Exhibit 1
Cross-examination at T23
9 December 2011 Covert surveillance conducted of the plaintiff on behalf of the defendants – 6.00am – 11.00am (5 hours). Exhibit 2
Exhibit GG
T40 ff
11 December 2011 Covert surveillance conducted of the plaintiff on behalf of the defendants – 8.00am – 1.00pm (5 hours). Exhibit 2
Exhibit GG
13 December 2011 Covert surveillance conducted of the plaintiff on behalf of the defendants – 1.15pm – 2.15pm (1 hour). Exhibit GG 14 December 2011 Covert surveillance conducted of the plaintiff on behalf of the defendants – 2.00pm – 6.00pm (4 hours). Exhibit GG 25 March 2012 Covert surveillance conducted of the plaintiff on behalf of the defendants – 8.00am – 1.00pm (5 hours). Exhibit GG 26 March 2012 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.00am – 12.00pm (5 hours). Exhibit GG 28 March 2012 Covert surveillance conducted of the plaintiff on behalf of the defendants – 6.00am – 11.00am (5 hours). Exhibit GG 28 May 2012 Mr R McArthur, orthopaedic surgeon, reports on the plaintiff.
Mr McArthur describes what he sees on the surveillance video of 11 December 2011 (exhibit 2):
“… I viewed 30 minutes of the 70 minute disc. This video depicted … [the plaintiff] shopping in an op-shop/warehouse. … [She] was repeatedly observed to be lifting her right arm above shoulder height to examine clothes on racks and was observed trying on outer garments which entailed the use of her right shoulder in a normal fashion. There was no evidence of any restriction or inhibition in using her right shoulder or upper limb in these activities.
Subsequently … [the plaintiff] was observed playing a poker machine in a gaming room … [She] exhibited normal neck movement, turning her head from side to side. She operated the gaining (scil. gaming) machine with her right hand and rapidly depressed the various keys on the console without any apparent weakness or inhibition. … [The plaintiff] also fed coins into the slot using her right hand and reached into a cup to obtain coins, which she fed into the machine with ease. … [The plaintiff] also repositioned her chair using her right hand and upper limb without any inhibition. … [She] was seen to bend and twist her spine in a normal fashion when examining clothes and trying on garments and also twist her spine when swivelling on the gaming chair.
This video supplied me with sufficient information to form the opinion that … [the plaintiff] was manufacturing symptoms in her neck, right shoulder, right upper limb and lumbar spine for secondary gain.
This confirmed the clinical impression that the restriction of movement in the neck, right shoulder and lumbar spine was voluntary in nature. Also, in the right upper limb there was evidence of a functional sensory loss and global weakness of all muscle groups.
…
Based on the video surveillance, the actual medical restrictions that … [the plaintiff] has appear to be minimal…
...
Based on the video surveillance, … [she]…. has a capacity for the occupations listed in the NES vocational assessment report dated 12.10.2010 (exhibit 23, which lists the suitable employment options as customer service assistant, bank worker, call centre operator, general clerk, and product examiner).
… [The plaintiff] could work in a variety of light jobs which did not entail repetitive bending or lifting of weights greater than 5kg nor should she use her right hand in a repetitive forceful fashion.
…
In view of the video surveillance which demonstrated that … [the plaintiff] has essentially normal function in her neck, right shoulder, right upper limb and lumbar spine, there would appear to be no indication to continue with physio or hydrotherapy. I am unable to comment on the treatment of any psychiatric illness as this is outside my area of competence.”
Mr McArthur goes on to note that the plaintiff is under the care of a psychiatrist for a mental illness and that –
“… this would be impacting upon her clinical presentation and capacity for employment.
…
... [Her] major impairment is due to her mental illness.”
Exhibit 13
The plaintiff seeks exclusion of this evidence on the grounds it traverses the concession made by the defendant that the plaintiff satisfies the threshold of “serious injury” both in terms of physical loss or impairment of a body function and severe mental or behavioural disturbance of disorder.
18 June 2012 Dr Atkin, the plaintiff’s treating general practitioner, reports to the plaintiff’s solicitors.
She notes that none of the surgeries performed on the plaintiff have relieved her pain “… and she has remained crippled with ongoing symptoms. She has become very depressed as a result of the whole affair and her severe ongoing pain. She is currently unable to do her own housework and even has trouble rolling over in bed. She has made such little progress over the 5 years, that I am sure she will not be able to work again.”
1 August – 5 August 2012 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, sees the plaintiff on 1 August 2012, reporting on 5 August 2012.
His report is written in two stages: first stage, based on clinical examination and history; second stage, after watching surveillance DVD (infer exhibit 2):
“… The first 25 minutes showed her in a garage shop. It showed her range of movement of her right shoulder appear[s] to be near normal. She was able to don T‑shirts with an overhead activity and reach up without any apparent restriction for objects above shoulder height.
She did not preferentially use the left arm above her right arm.
The next DVD showed her in a pokies venue in which she was at the pokies for some 45 minutes. It did not show much relating to her left arm but she certainly used her right arm predominantly to feed the pokie machine.”
Dr Thomas considers that the plaintiff’s complaints of chronic pain must be measured against his assessment that she contributed in examination in a “submaximal” manner. He considers her to be an “unreliable witness” and, accordingly, finds it difficult “to not conclude that her level of disability is far better than what she portrays”.
However, he considers that physical restrictions should be imposed in respect of employment: to avoid lifting more than 5 kilograms and to avoid overhead lifting.
Dr Thomas considers that the plaintiff has capacity for employment, noting that of the suitable employment options identified as: customer service assistant, bank worker, call centre operator, general clerk and product examiner, the plaintiff would have capacity to be a call centre operator and a product examiner. “… She does not strike me as someone who would do well in customer service and therefore, this would take out the bank worker and the customer service assistant.
I do not think a general clerk would be within her educational level either … I think she could work full time, as in a call centre … ..”
Dr Thomas also considered the plaintiff to have the capacity to participate in vocational activities such as retraining, job seeking or further vocational assessment if required.
Note the addendum report dated 30 April 2013 (exhibit 16) that qualifies his opinion regarding suitable employment options.
Exhibit 15 2 October 2012 Professor Davis reviews plaintiff. Despite improvement in the strength of her right hand, the plaintiff has ongoing chronic pain affecting the right side of her body, particularly the upper limb, and she has developed “frozen shoulder”. The plaintiff was referred to Mr Trung Nguyen, orthopaedic surgeon, to treat and manage the right frozen shoulder. Exhibit Q 3 December 2012 Dr Atkin, the plaintiff’s general practitioner, writes to the insurer regarding reports from Dr R Athey, consultant psychiatrist (two reports) (not tendered in evidence before me), Dr R McArthur, orthopaedic surgeon (exhibit 13), and Dr Clayton Thomas, pain physician (exhibit 15).
Dr Atkin considers Dr Athey’s report to be “fair and comprehensive”. She notes that the plaintiff has “very significant psychiatric symptoms which prevent her from working. Her chronic pain continues to be a real problem for her.”
Regarding Mr McArthur’s report, Dr Atkin remarks:
“I do not know how to comment on a report by an orthopaedic surgeon which is based on viewing a video and not on clinical examination.
I know that … [the plaintiff] tries to do normal things and she tries to lead a normal life but I also believe that she suffers from severe unremitting pain in her neck and back and from chronic anxiety. I do not believe she is able to work.”
Dr Atkin rejects Dr Thomas’ report as “prejudiced”, since Dr Atkin interviewed the plaintiff very soon after her hospital admission.
“… She was very traumatised by her treatment and told me that she felt prejudged and the team were threatening and unsympathetic to her psychiatric symptoms in that they would insist that she participated in programs that aggravated her pain or distressed her psychologically.”
Exhibit 5 7 November 2012 Dr Atkin, the plaintiff’s general practitioner, writes to comment on the assessment made by Mr McArthur, orthopaedic surgeon of the plaintiff, after viewing 30 minutes of a 70-minute tape, in which he assessed the plaintiff as “using her arms normally”.
Dr Atkin states:
“I … [refute] that he can make such a claim. If she did appear to be moving her arms normally for 30 minutes, that does not prove that she can move her arms thus all of the time. She has a great deal of muscular spasm which fluctuates and there are times when she feels somewhat better. However these periods are not sustained. Fluctuating levels of pain are usual in any injury.
… [The plaintiff] has the greatest degree of pain at night and this stops her from getting enough sleep and she has a great deal of stiffness in the morning. Her morning stiffness is so bad that she has a great deal of difficulty getting up from the bed and this sometimes causes her to have an accident on her way to the toilet … as she cannot get to the toilet on time.
I strongly urge that her request for an electric bed be reconsidered and I do not believe that she is employable in any activity at all.”
Exhibit 6 5 March 2013 Professor I Jones, consultant psychiatrist, reports to the insurer.
He considers that despite surgical intervention, the plaintiff has been left with a persistent neck pain. He notes that the extent of this pain has been commented upon by other “physical advisors” and it has been suggested that there is a component of exaggeration to this pain. However, Professor Jones considers it probable that at least some of the pain has an organic basis.
Professor Jones assesses the plaintiff’s Adjustment Disorder as mild in degree and her Depression as minor, in the context of medication and psychiatric treatment which seem to be controlling those conditions reasonably well. (Note: the plaintiff submits I should reject this part of the opinion as it traverses the defendants’ concession that the plaintiff satisfies the threshold under sub-paragraph (c) of the definition of “serious injury”.)
Regarding capacity for employment, Professor Jones comments that there seems to be general agreement, both from a physical and a psychiatric point of view, that the plaintiff retains a limited work capacity but the choice of tasks in which she is likely to be successful are severely limited. From a psychiatric point of view, he considers the plaintiff has a capacity for limited employment although he notes “it would be preferable, if possible, that she does not work in crowded areas since she has some agoraphobic symptoms.”
Regarding prognosis, Professor Jones notes the continuation of some symptoms of anxiety and that there seems little chance that the symptoms will be eliminated. However, he does not consider they are “… grossly incapacitating and are maintained at this reasonable level on the present regimen of treatment”.
Professor Jones allowed for the possibility that the plaintiff exaggerated her disability but considered that this could not be “conclusively demonstrated”.
Exhibit 17 4 April 2013 NES Vocational Assessment Report (Work Focus Australia).
The author, Ms Priya Jungic, describes the plaintiff’s injury as “Right ganglion, trigger finger, Dupuytren contracture”, and refers to a Certificate of Capacity from Dr Atkin dated 21 January 2013.
Medical restrictions include those reported by the plaintiff, Dr Thomas, Mr McArthur and Dr Athey.
The author notes that the plaintiff reports she is unable to twist her body, grip objects for a long period, stand for more than 10 minutes at a time, lift her right arm above shoulder level or behind her back, bend at the knees, walk for more than 20 minutes or sit for more than 20 minutes at a time.
The author notes Dr Thomas reports that the plaintiff is to avoid overhead lifting and lifting more than 5 kilograms.
The author notes that Mr McArthur reports that the plaintiff could work in a variety of light jobs which do not entail repetitive bending or lifting weights greater than 5 kilograms, nor should she use her right hand in a repetitive forceful fashion.
The author notes that Dr Athey (psychiatrist) reports that the plaintiff is restricted socially, and from an employment point of view, would not be able to undertake any work which either exacerbates her physical problems, including exacerbating pain, nor can she work in an enclosed space.
According to the author, the plaintiff stated her main barrier to returning to work is her physical restrictions of the use of her right arm and wrist, and bending, standing and sitting restrictions. The plaintiff further indicated that she is afraid that she may get bumped accidentally, which could result in pain. Further, she explained that she becomes anxious and her concentration and memory are impaired.
The author identifies potential suitable new employment for the plaintiff “in the short term”. The suitable employment options identified are:
1 Product examiner - ANZSCO Code: 8393-11
2 Inquiry Clerk - ANZSCO Code: 5412-11
3 Packer - ANZSCO Code: 8321-99
The author considers that the plaintiff would benefit from completing a basic computer course. Due to the plaintiff’s limited work experience and transferable skills, she would benefit from gaining further skills and confidence.
The author explains why the proposed suitable employment options are appropriate for the plaintiff.
1 Product examiner - ANZSCO Code: 8393-11
The duties are described as:
· “Examine products to ensure conformity to specifications and standards of presentation and quality
· Take samples and measurements of products throughout the production process, from when raw materials are received from external suppliers
· Ensuring the production process operates at maximum efficiency and effectiveness
· Testing may involve activities such as visual checks of appearance, weighing samples.”
The author considers the job is appropriate because the role is described as “light” and would allow the plaintiff “to adhere to her physical restrictions of no overhead lifting, repetitive use of her right wrist.” The author emphasises that it is important to ensure that employment identified for the plaintiff requires duties that are only light in nature.
2. Inquiry Clerk - ANZSCO Code: 5412-11
The duties are described as:
· “Answering inquiries about goods and services, and providing information about their availability, location, price and related issues
· Responding to inquiries about problems and providing advice, information and assistance
· Recording information about inquiries and complaints
· Referring complex inquiries to team leaders or expert advisers
· Issuing relevant forms, information kits and brochures to interested parties
· Accessing and operating computer network systems and communication systems such as public address and paging systems
· May refer inquiries to other sources”
The author identifies that “… it is important to identify roles where the work is light in nature avoiding a crowded or enclosed environment.”
3 Packer - ANZSCO Code: 8321-99
The duties are described as:
· “Pack containers, bags or boxes with products, counting, weighing or measuring amounts and adjusting quantities
· Wrap protective material around products
· Seal bags and containers and attach labels
· Count and place bags or packages onto trays or racks, or into shipping cartons
· Put identifying data on cartons
· Visually inspect materials and containers
· Record information such as numbers, weight, times and dates
· Sort packaged products by weight or content
· Operate conveyors to receive or dispose of packaged products
· Apply stretch wrap manually.”
The author considers the job to be appropriate because the role is considered to be “light” in nature and therefore should allow the plaintiff to avoid heavy lifting or repetitive movements which may aggravate her back and right arm pain. The author states that the plaintiff can alternate between the use of her right and left hand.
Exhibit 24 11 April 2013 Professor Jones, consultant psychiatrist, reports to the insurer regarding identified employment options of product examiner, inquiry clerk and packer.
He considers that the plaintiff’s psychiatric symptoms would not preclude a gradual introduction into any one of these jobs. However, whether this can be achieved on a regular and consistent basis “is less certain”.
Exhibit 18 15 April 2013 Mr McArthur, orthopaedic surgeon, writes to the insurer to answer two questions:
Question:
“1 Do you believe the following job options identified in the vocational assessment are medically suitable job options based on the injured worker’s accepted condition:
a) Product examiner
b) Inquiry clerk
c) Packer.”
Answer:
Mr McArthur confirms his earlier opinion (exhibit 13) that the plaintiff –
“… could work in a variety of light jobs which do not entail bending or lifting of weights greater than 5 kg nor should she use her right hand in a repetitive forceful fashion. In view of this, … [the plaintiff] could work in the option of an inquiry clerk. … [She] may experience difficulty with the job options of a product examiner and packer, which would require that she would use her right hand in a repetitive forceful fashion.”
In answer to Question 2, Mr McArthur states that the plaintiff should be able to participate in the job option of an inquiry clerk “on a regular and consistent basis”.
Exhibit 14 30 April 2013 Dr Thomas reports to the insurer about a vocational assessment report dated 5 April 2013 (exhibit 24).
He confirms his previous opinion that the plaintiff does not have the capacity to work as a product examiner. However, he considers she could work as an enquiry clerk in a full-time capacity. Regarding work as a packer, that would depend on the product that needs to be packed:
“As a packer, the worker should avoid fast, repetitive packing activities but rather more considered self-paced packing activities.”
Regarding enquiry clerk, Dr Thomas stated:
“If … [the plaintiff] were to work as an enquiry clerk she would need to upgrade her computer skills in order to do so although I understand that most of the computing would be fairly basic stuff and therefore not [sic] extensive retraining would be required here.”
Dr Thomas considered that the plaintiff would be able to participate in these two job options on a regular and consistent basis.
Exhibit 16
Note that Dr Thomas provides the report without further assessing the plaintiff. He last saw her on 1 August 2012, and is commenting on a report created some eight months later.
15 May 2013 NES Job Seeker Plan (Work Focus Australia)
The author, Tamara Budd, notes that the plaintiff claimed that she cannot be in confined spaces, and appointments with Work Focus Australia are to be held in the foyer of the Reservoir office.
Exhibit 25 12 June 2013 Dr Atkin, the plaintiff’s general practitioner, writes in support of the plaintiff’s application for conciliation regarding her right shoulder issues and the termination of the WorkCover payments. She summarises the clinical history and the surgical and other interventions performed. Notwithstanding these treatments, the plaintiff continues to be symptomatic:
“She has become depressed and has been seen at a pain clinic and now sees a psychiatrist monthly.
She sleeps poorly, has chronic pain and is socially isolated.
I do not believe that the few hours that she spent out with an old friend - who took her out because she is always at home and miserable - is a fair reflection on her level of disability. She sleeps very little and suffers extreme poverty because of the financial deprivation she has suffered while on workcover.
I strongly feel that she will not work again because of the pain and disability suffered as a result of her work injury.”
Current medications: Lexapro, Panadeine Forte, Temaze and Xanax.
Exhibit 7 27 June 2013 NES Week 8 Job Seeker Plan.
The author, Tamara Budd, notes that the plaintiff has reported that she has been “keeping an eye out in the “news paper” (sic) for jobs, however has not found anything suitable that she could do”. The plaintiff advised that she feels unable to cope with learning computers as she cannot sit for long periods of time.
Exhibit 26 28 June 2013 Vocational Re-education Assessment Report (Work Focus Australia).
The author, Tamara Budd, lists various courses in basic computer training that are recommended for the plaintiff to enhance her prospects for employment both in terms of skill and confidence.
As is noted in exhibit 26, the plaintiff feels unable to cope with these courses as she cannot sit for long periods of time.
Exhibit 27 20 August 2013 Dr N Elliot, the plaintiff’s treating psychiatrist, reports to the Accident Compensation Conciliation Service. At this point, Dr Elliot has been treating the plaintiff for approximately three years, having seen her on a total of 42 occasions during that period.
Dr Elliot notes that the ketamine infusion of August 2010 did not assist the plaintiff with pain. After this, the plaintiff developed panic attacks and agoraphobia. At the time of Dr Elliot’s initial assessment of the plaintiff, the plaintiff met the criteria for Major Depressive Disorder of mild severity with Panic Disorder and agoraphobia.
Regarding her capacity for pre-injury work or suitable alternative employment, Dr Elliot states:
“From a psychiatric perspective, … [the plaintiff] is capable of working but some of her symptoms may mean she is less effective and may require more frequent breaks in order to cope with her work. From a psychiatric perspective, … [the plaintiff] could return to work initially on a part-time basis and then increase gradually over several months to a full-time capacity. However, this is hypothetical as because of her physical injury, she would not be able to return to pre-injury duties.
…
… [The plaintiff] requires ongoing treatment for her psychiatric condition, that is, major depression currently of mild severity and ongoing panic disorder with agoraphobia and generalised anxiety. A consequence of her chronic pain is poor sleep. Poor sleep also impacts on her mental health conditions. She requires currently an antidepressant to treat her anxiety and depression and a combination of diazepam and Xanax to assist with sleep disturbance and symptoms of panic. She is fully competent in activities of daily living, ie, feeding, bathing, toileting and dressing, though does these activities at a greatly reduced pace.”
Exhibit 12 23 August 2013 NES Week 16 Job Seeker Plan (Work Focus Australia).
The author, Yin Tham, notes that the plaintiff reports she cannot be in confined spaces and that appointments with Work Focus Australia are to be held in the foyer of the Reservoir office. The plaintiff reports that she has been keeping an eye out in the “news paper” (sic) for jobs; however, has not found anything suitable she could do. The plaintiff advised that she feels she would not be able to cope with learning computers as she cannot sit for long periods of time.
Exhibit 28
It appears that some of the report is a straight “cut and paste” from exhibit 26. The formatting, and spacing are identical, for example “news paper”.
30 October 2013 NES Worker Independent Job Seeker Plan (Work Focus Australia).
The author, Yin Tham, reports that because the plaintiff states she could not be in confined spaces, all appointments with Work Focus Australia were held in the foyer of the Reservoir office. The plaintiff attended fortnightly appointments as required. She has completed the 26 job seeking in the NES program and the file will be closed.
Exhibit 29 18 December 2013 Certificate of Opinion of the Medical Panel.
Note the plaintiff disputes the admissibility of this exhibit. The opinion stands in stark contrast to the defendants’ concession that the plaintiff suffers a serious injury both in terms of impairment or loss of a body function, and also in terms of a mental or behavioural disturbance or disorder. The Panel considers that the plaintiff no longer suffers from “any intrinsic medical condition of the right shoulder relevant to any claimed injuries” and her mental or behavioural disorder is of “mild severity”. The Panel considers that the plaintiff has a current work capacity.
Exhibit 21 17 March 2014 Mr M Shannon, surgeon, reports to the insurer.
Mr Shannon notes that “… liability has been accepted for claimed injuries to the neck, right arm, right elbow ulnar neuropathy, right wrist and ganglion.”
The report contains hearsay evidence of the Medical Panel’s report. One of the “dual” purposes of Mr Shannon’s report is to assess liability for a claimed back injury.
Note that he refers to the opinion of the Medical Panel, and there is dispute between the parties as to the admissibility of the findings and reasons. Also note that the plaintiff argues that any findings that the plaintiff does not have a compensable injury should be rejected in light of the concessions that leave should be granted to bring common law proceedings for pain and suffering.
Exhibit 20 30 April 2014 Dr Atkin, the plaintiff’s general practitioner, writes to the insurer to request approval to fund physiotherapy for the plaintiff.
Current medication: Lexapro, Mobic, Panadeine Forte, Temaze, Valium.
Exhibit 8 18 September 2014 Plaintiff’s first affidavit sworn. Exhibit A 21 November 2014 Covert surveillance conducted of the plaintiff on behalf of the defendants – 6.00am to 2.00pm (8 hours). Exhibit 3
Exhibit GG
T63 ff
4 December 2014 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.30am to 2.30pm (7 hours). Exhibit GG 4 February 2015 Originating Motion filed. 31 March 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.30am – 8.00am (half an hour). Exhibit GG 2 April 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 6.30am – 11.00am (four-and-a-half hours). Exhibit 4
Exhibit GG
T71 ff
6 April 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.30am – 12.00pm (four-and-a-half hours). Exhibit GG 11 April 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.30am – 10.30pm (15 hours). Exhibit 4
Exhibit GG
T71 ff
14 April 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 4.30pm to 7.00pm (two-and-a-half hours). Exhibit GG 15 April 2015 Dr A Kaplan, consultant psychiatrist, reports on the plaintiff.
Dr Kaplan considers that the plaintiff has become increasingly depressed and anxious as a result of her injuries, chronic pain, her inability to perform her normal work, and the other limitations imposed upon her by her pain. In addition, she developed panic attacks and claustrophobic symptoms. He states:
“… Her condition is best characterised as an Adjustment Disorder with Mixed Anxiety and Depressed Mood associated with panic attacks and in addition she has developed a specific phobia. Her self-esteem has been undermined, she has difficulty with her memory and concentration, she has developed a low frustration tolerance and she experiences panic attacks.”
Regarding the plaintiff’s prognosis, Dr Kaplan considers that the plaintiff’s psychiatric condition will be determined by the outcome of her physical condition and she is likely to remain prone to depression and anxiety as long as her pain persists and as long as she remains disabled by her pain. If her physical condition deteriorates or if she becomes increasingly disabled, he considers her depression is likely to intensify. He notes the plaintiff is currently dependent on her young adult son, who acts as her carer, providing the plaintiff with considerable assistance at home. He also notes that the plaintiff is likely to become more vulnerable if/when her son leaves home to establish his own independence.
Dr Kaplan is of the view that the plaintiff’s psychiatric condition, and in particular her difficulties with memory and concentration, loss of self-esteem, and lowered frustration tolerance, is likely to have an impact upon her capacity to engage in her pre-injury duties or any other suitable employment, although this capacity will be largely determined by her physical condition.
Exhibit CC 27 April 2015 Dr Atkin, the plaintiff’s treating general practitioner, reports to the plaintiff’s solicitors. The report is further to her earlier report of 18 June 2012.
Dr Atkin records the plaintiff’s current symptoms –
“… are of pain in the right arm, her neck and low back with marked stiffness in her back and neck as well as depression. She sees her psychiatrist every 4-6 weeks and takes a multitude of medications. Intermittently I try more physiotherapy but … [the plaintiff] does not have the resources to pay for regular treatment.
All her spinal and neck movements are limited by pain, as are all arm movements above her head. Fine hand movements also cause pain.
… [The plaintiff] does not have capacity to perform any of her pre-injury work now or in the foreseeable future. Because of her chronic pain and depression, I do not think … [the plaintiff] has the capacity to do any work now or in the foreseeable future.
She remains unfit for any work and needs support to cope at home. She relies heavily on her son for assistance with housework and shopping.
Her mood has stabilized at ‘low’ and her pain is barely tolerable in that it affects her daily coping, her sleep, her relationships and her independence.
I cannot see any likelihood of improvement in the foreseeable future.
… [The plaintiff] has so much disability that I cannot envisage that she could be worse if she were to develop arthritis. ...
… [The plaintiff] has had 3 lots of surgery, none of which have improved her pain, so I would not recommend any further surgery.
… [The plaintiff] has been cared for by a neurologist, a general surgeon, a neurosurgeon, a physiotherapist and a pain specialist and his team. I don’t think further specialist opinion would be helpful.”
Exhibit L 10 June 2015 Dr Amanda Sillcock, consultant occupational physician, reports on the plaintiff. She has been provided with the plaintiff’s first affidavit, exhibit A, various diagnostic investigations and medical reports. In addition, she has NES vocational assessment reports dated 5 April 2013 (exhibit 24); 15 May 2013 (exhibit 25); 27 June 2013 (exhibit 26); 26 August 2013 (exhibit 28) and 30 October 2013 (exhibit 30).
The plaintiff reports that she is not getting any better and continues to have burning pain in her neck and pain in her right elbow. She has cramps and shooting pains in her right arm and hand but her right shoulder is now alright. She has intermittent low-back pain. She grades her pain as being 8 out of 10 in severity most of the time. She reports difficulty moving her right hand and gets intermittent pins and needles and shaking in that hand. The plaintiff also reports that she is not sleeping well and often has to sit up at night. Her son has to help her out of bed at times.
Regarding her activities of daily living, the plaintiff reports that she relies on her left hand for almost everything. She has difficulty with taps, she can sit or stand for 10 to 15 minutes and her neck becomes sore if she walks for too long. She only drives for short distances. She gets claustrophobic on public transport.
The plaintiff reports that her son helps her wash and dry her hair. She does not wear a bra most of the time now as it is uncomfortable on her right shoulder. She wears slip-on shoes. Her son does all the housework as she is unable to do anything. She rarely cooks, and chopping vegetables causes cramps in her hand. Although she can load washing into the machine, her son hangs it out. Although she can get a few things at the shops, mostly her son goes shopping with her for heavy items. She is unable to mow the lawns and cannot garden unless she sits down and uses her left hand. She cannot use implements such as screwdrivers.
On examination, Dr Sillcock noted that the plaintiff was tender all down her neck and had very restricted movement in all directions. Flexion and extension were about 15 per cent of the normal range and lateral flexion and rotation were just under half of the normal range. The plaintiff was slightly tender over her right shoulder and had reduced movement, with abduction being 90 degrees and flexion 85 degrees. Internal rotation was also reduced.
Her right arm and hand were not tender and she had a normal range of wrist and elbow movement. She was slightly tender over her lower lumbar spine but had an almost normal range of movement. She had normal reflexes and sensation in her arms but there was global weakness of the right arm.
Dr Sillcock diagnosed the plaintiff as suffering from the effects of a cervical disc lesion and subsequent fusion. She also diagnosed adhesive capsulitis in the right shoulder. She noted that the plaintiff has had a right ulnar nerve transposition and ganglion removed and does not have any signs of these conditions at present.
Dr Sillcock considers that as a consequence of the physical injury and impairment of the plaintiff’s neck, she is likely to be precluded or restricted in employment or activities involving:
· bending, lifting, twisting or stooping
· pushing, pulling or lifting
· repetitive pushing, pulling or lifting
· repetitive and or prolonged use of the neck
· overhead activities
· prolonged sitting, walking or standing.
Dr Sillcock believes that these restrictions are moderately severe and that the plaintiff’s incapacity will continue for the foreseeable future.
Dr Sillcock considers that the plaintiff does not have a capacity to perform her pre-injury duties on either a part-time or full-time basis, and that this incapacity is permanent. Nor does she consider the plaintiff to have a capacity for suitable alternative employment, and this incapacity is also permanent.
Regarding the NES vocational assessments identified above, which suggest that the plaintiff has a capacity to perform the work of:
· product examiner
· inquiry clerk
· packer
Dr Sillcock dismisses them as unsuitable forms of employment as the plaintiff –
“… has very limited use of her right arm and restriction of neck movement and I believe that these physical difficulties render her unfit to undertake any of these vocational options. Product examiner and packer require the use of both hands. She does not have any experience working in a clerical field and I do not believe she would be physically able to do this work anyway because of her constant neck pain and loss of movement.”
Regarding prognosis, Dr Sillcock believes that the plaintiff’s condition is unlikely to change significantly in the foreseeable future. There is likely to be some deterioration in her condition as she ages.
Exhibit AA 19 June 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 8.00am – 12.00pm (4 hours). Exhibit GG 24 June 2015 Dr Naomi Elliot, treating consultant psychiatrist, reports on the plaintiff. As at the date of this report, she has been treating the plaintiff once or twice a month for almost five years.
Dr Elliot became involved in the plaintiff’s treatment following her admission to NERC for a ketamine infusion in August 2010, due to ongoing high pain levels. The ketamine injection did not help the plaintiff with pain management. Whilst at NERC, the plaintiff developed panic attacks and agoraphobia, hence the referral to Dr Elliot.
At that time, Dr Elliot considered that the plaintiff met the criteria for Major Depressive Disorder of mild severity, Panic Disorder with agoraphobia. Since then, the plaintiff’s psychiatric condition has stabilised; however, in Dr Elliot’s opinion, the plaintiff remains “… significantly impaired with ongoing symptoms of generalised anxiety, major depressive disorder of mild severity and panic disorder with agoraphobia”.
The plaintiff continues to present with low mood, reduced motivation, impaired concentration, poor sleep due to pain and she experiences an ongoing sense of inner restlessness fitting with generalised anxiety and continues to experience an exacerbation of anxiety symptoms when in a confined space or when in crowded places.
Dr Elliot considers the perpetuating factors for the plaintiff’s “depressive disorder and raised anxiety levels include chronic pain, i.e., a direct consequence of a workplace injury”. In her opinion, the plaintiff requires ongoing psychiatric review and prescription of medication including antidepressant medication and benzodiazepine medication. Currently, the plaintiff is prescribed alprazolam, 0.5 milligrams three times a day; Lexapro, 30 milligrams daily; temazepam, 20 milligrams at night and eight Panadeine Forte tablets per day.
Dr Elliot considers that as a consequence of the plaintiff’s psychiatric medical condition, she does not have the capacity to perform her pre-injury duties. She considers this incapacity to be permanent.
Regarding whether the plaintiff has a capacity to perform suitable alternative employment, Dr Elliot considers that from a psychiatric perspective, the plaintiff is capable of working but some of her symptoms may mean she is less effective and may require more frequent breaks in order to cope with her work. From a psychiatric perspective, the plaintiff could return to work initially on a part-time basis and then gradually increase over several months. “However, this is hypothetical as because of her physical injury, she would not be able to return to pre-injury duties.”
Because of the plaintiff’s ongoing agoraphobia, Dr Elliot notes that the plaintiff is limited in respect of leaving her house and socialising, which prevents her from participating in many recreational activities.
Dr Elliot also notes the plaintiff’s difficulty tolerating various medications that are commonly used to treat depression and anxiety.
Regarding prognosis, Dr Elliot notes that the plaintiff –
“… is not particularly psychologically minded and has not been able to effectively utilise psychological strategies to improve her mental state since my involvement began. Therefore we are relying predominantly on medication and supportive psychotherapy. I believe her condition is stable and unlikely to deteriorate unless there is a worsening of the perpetuating cause i.e. a worsening of her pain levels.”
Exhibit BB 24 June 2015 Mr David Brownbill, consultant neurosurgeon, reports on behalf of the plaintiff.
Mr Brownbill notes that radiological investigations demonstrated “… multiple level degenerative changes of the cervical spine and lumbar spine with nerve conduction studies showing an ulnar nerve compression at the right elbow”.
He considered the plaintiff probably had constitutional cervical and thoraco lumbar spinal degenerative changes which were aggravated by her heavy repetitive physical work activities.
He noted that it is to be anticipated that some pain and sensory changes/disturbances will continue in a fluctuating manner.
Mr Brownbill was of the view that the plaintiff should avoid activities involving heavy lifting, forced cervical spine or spinal mobility, repeated bending or prolonged standing or sitting or holding her neck in a fixed position. He considered that as a consequence of these activity restrictions, the plaintiff would probably be unable to return to her pre-injury employment. Nor is it likely that she would be able to perform any alternative duties in an ongoing or reliable fashion. These consequences are likely permanent. If any attempt at a return to work plan is made, it should be performed in a graded fashion and under close medical supervision. However, he does not consider the plaintiff capable of performing the proposed employment options of product examiner, enquiry clerk or packer.
He considers the plaintiff’s incapacity will continue for the foreseeable future.
Mr Brownbill considers it unlikely that the plaintiff will require further surgery. He advises that the use of analgesics and anti-inflammatory medication would be appropriate, particularly during periods of pain exacerbation.
Exhibit Z 30 June 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.00am – 1.00pm (6 hours). Exhibit GG 2 July 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.00am – 12.00pm (5 hours). Exhibit GG 16 July 2015 Ms Diane Forster, Human Resources Consultant, reports on the plaintiff, whom she saw on 14 July 2015.
She notes that the plaintiff’s work skills and experience have been gained in physically demanding jobs as a sheet metal worker, sewing machinist and picker. Her duties as a sheet metal worker included cutting and forming sheet metal products, assembly, packing, quality control and general housekeeping duties.
The plaintiff reports she is a one finger typist, with her only experience being used in Facebook, playing online games and Internet banking. She is limited to using her computer for up to 30 minutes due to lower back, neck and right hand pain. She has no clerical experience.
Ms Forster notes that based on her solid work history, the plaintiff would be an asset to any company who could utilise her skills and, as demonstrated by her return to work attempts she has been “stoic in her endeavours to remain employed even with her recurring pain and disabilities.” However, she considers that it would be extremely difficult for the plaintiff to perform productively in the general workplace, regardless of the industry and even with allowances being made for her restrictions.
Ms Forster states:
“… as a recruiter I do not believe that I would be successful in finding … [the plaintiff] a suitable alternative position … and that she would be capable of safely and efficiently performing due to her limited work capacity, physical restrictions, recurring pain and fatigue. Even work of the lightest kind requires punctuality, regular attendance and a consistent capacity to do the work.
In her current state and as … [the plaintiff] presented to me at her assessment, I do not believe she could meet these criteria on a consistent and ongoing basis to an adequate industry standard which would be considered acceptable in the workplace compared to her co-workers.”
Ms Forster would not refer the plaintiff to alternative sedentary type work such as light factory or bench type work “… as these positions generally require prolonged standing and/or walking and repetitive bending, twisting, lifting, kneeling, squatting and overhead reaching which are contrary to the recommended restrictions in the medical reports cited.”
The plaintiff has no previous clerical experience and her computer skills are “… very minimal. She would therefore require retraining prior to applying for administrative work. However, she stated she is unable to use a computer for longer than 30 minutes before experiencing lower back, neck and right hand pain.”
Addressing the positions identified in the vocational assessment report dated 5 April 2013 (exhibit 24), Ms Forster dismisses each as unsuitable forms of employment for the plaintiff:
· Product examiner
“In order to work as a product examiner, … [the plaintiff] would be required to undertake fast, repetitive movements, using both hands and arms. She would be required to sit or stand for prolonged periods and may also be required to bend or twist in order to examine all parts of the product. Examiners are also required to document their findings, which may require the use of computers, in which … [the plaintiff] has very minimal experience. As … [the plaintiff’s] treaters have stated that she has no current capacity to undertake any of the activities described here due to her physical injuries and restrictions, this type of employment would not comply with her current restrictions. … [The plaintiff] may also struggle to learn new procedures and to regularly update her knowledge of any new products given her memory issues and reduced concentration levels.”
· Inquiry clerk
“This type of employment requires the worker to learn new information in relation to the products and services on which the information is being requested and to update their knowledge on a constant basis, which … [the plaintiff] would struggle to undertake given her memory issues and reduced concentration. … [The plaintiff] would then need to interact with members of the public or other companies, providing information confidently and with the ability to respond to follow up questions. The positions are sedentary and telephone and computer based, and require prolonged periods of sitting, which … [the plaintiff] is unable to do. She would need to complete a computer course to increase her very basic skills, which may be difficult for her as she is also unable to use her computer for longer than 30 minutes due to lower back, neck and right hand pain.”
· Packer
“As a packer, … [the plaintiff] would be required to undertake fast, repetitive movements, using both hands and arms. She would be required to sit or stand for prolonged periods and may be required to operate machinery such as order pickers to locate and move products. She would likely also be required to bend in order to place labels on containers or to stack packed products on pallets or in large storage containers. … [The plaintiff’s] treaters have stated that she has no current capacity to undertake any of the activities described here due to her physical injuries and restrictions, and that she will likely not regain a capacity for this type of manual work in the foreseeable future. …. [The plaintiff] may also struggle to learn new procedures given her memory issues and reduced concentration levels. Her ability to operate machinery would also be risky given her current medication regime.”
17 July 2015 The plaintiff’s second affidavit affirmed.
The plaintiff confirms that she continues to suffer the symptoms and restrictions outlined in her first affidavit (exhibit A), save that the range of movement in her right shoulder has improved since then, due to a further hydrodilatation. However, she still has persistent pain in the shoulder.
The plaintiff states she continues to suffer neck pain but has learned to manage it and modify her behaviour so as to keep her pain in check. Her neck pain worsens with physical activity. The pain extends to her shoulders and on occasions she experiences a burning sensation or a tingling and numbness in her arms, forearms and hands. Sometimes she suffers a flare-up of pain for no apparent reason. Typically, the pain is worse during colder weather. She has a constant sense of weakness in the right hand and continues to suffer from pain in her lower back.
The plaintiff’s neck pain interferes with her sleep. She wakes frequently during the night and at most on any given night, sleeps between two to three hours. She often wakes with a headache.
The plaintiff takes pain-alleviating medication on a daily basis (Panadeine Forte) and Temazepam each night. She also takes medication for depression, Lexapro and Alprazolam, which have side-effects on her stomach (confirmed by Dr Elliot’s report, exhibit BB).
The plaintiff continues to consult her psychiatrist, Dr Elliot, and her general practitioner, Dr Atkin.
The plaintiff describes how her physical and mental injuries have impacted upon her life.
Exhibit B 17 July 2015 Affidavit of the plaintiff’s son and full-time carer affirmed. Exhibit D 18 July 2015 Affidavit of Vasilios Mitsiou (the plaintiff’s landlord) sworn/affirmed. Exhibit E 14 August 2015 Dr Atkin reviews the plaintiff and confirms that –
“… all her neck and spinal movements are limited by pain. Fine hand movements also cause pain. … [The plaintiff] does not have a capacity to perform preinjury work now or in the foreseeable future because of her chronic spinal pain, especially that of her cervical spine.
Because of her chronic pain, especially that pain in the neck and the pain referred from the neck down the right arm and into her right hand, I do not think … [the plaintiff] has the capacity to do any work in the foreseeable future.”
Exhibit M 15 August 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.00am – 1.00pm (6 hours). Exhibit GG 17 August 2015 Covert surveillance conducted of the plaintiff on behalf of the defendants – 7.00am to 2.00pm (7 hours). Exhibit GG 18 August 2015 First day of hearing.
The defendants consent to leave being granted to the plaintiff to bring common law proceedings for pain and suffering in respect of both loss or impairment of a body function and in respect of a mental or behavioural disturbance or disorder.
T7
The Plaintiff’s evidence
First affidavit
27 In her first affidavit,[9] the plaintiff deposed that she was born in ### #### ## ## #### # 1957. She immigrated to Australia in 1986. She is single. She has three children from two marriages.
[9]Exhibit A, affirmed 18 September 2014
28 The plaintiff was educated in #### #### ## until age fifteen. Her first job was as a sewing machinist. She did this intermittently while raising her first two children.
29 After arriving in Australia, the plaintiff first lived in #### #### and then moved to #### ##, where she worked as a sewing machinist. With her husband and children, she then moved to #### ### and had her third child while living there. The plaintiff then lived in #### # and later moved back to #### ####.
30 In approximately 1996, the plaintiff commenced work at J A L Filter Services Pty Ltd, which later became Peregrine Industries Pty Ltd, the first defendant. At first, the plaintiff worked as a part-time machinist making air-conditioning bags. While doing this job, she also learnt how to do the metalwork required to make air-conditioning filters.
31 For a period of approximately six months during 2000, the plaintiff left J A L Filter Services Pty Ltd and worked as a picker on recycling lines at Visy; however, she returned to work at J A L Filter Services Pty Ltd on a full-time basis.
32 The plaintiff’s work for the first defendant was both heavy and repetitive. Her day was occupied making air-conditioning filters using power tools such as a big drop saw, tin snips, drills, hand pop rivet guns and various types of scissors. Standing to perform the work, she would lean over work benches, tables and the floor using these tools with her head bent over applying maximum effort to cut, notch, drill and fold. Cutting wire on the factory floor was particularly difficult for the plaintiff. It involved much heavy, repetitive and forceful movements. There was also a lot of heavy lifting and carrying of rolls of material from the floor to the table, carrying filters around and carrying and dragging large rolls of fibreglass.
33 In 2008, the plaintiff began to suffer from weakness and numbness in her right hand while she was performing her work duties cutting metal. The pain extended from her neck to her fingers. As a consequence, in July 2008, her doctor referred her for ultrasound of the right wrist. She was then referred to a surgeon, who operated on the plaintiff on 29 July 2008 to remove a ganglion from her wrist.
34 Later that year, on 29 August 2008, nerve conduction studies were performed on the plaintiff and on 30 September 2008, an MRI scan was conducted on the plaintiff’s neck. The plaintiff was then referred to Professor Gavin Davis, neurosurgeon.
35 The plaintiff was unable to resume her normal working duties. She was reduced to performing light duties – approximately 20 hours per week. In addition to the problems associated with her right arm and neck, the plaintiff was also suffering from pain in her lower back. She underwent a CT scan of her lumbar spine on 7 January 2009.
36 Because of her physical problems, the plaintiff became depressed and in early 2009, was prescribed antidepressant medication, Lexapro.
37 On the recommendation of Professor Davis, the plaintiff underwent surgery to the ulnar nerve in her right elbow. However, following the surgery in May 2009, she continued to have ongoing problems with pains and cramps down her right arm and down the right side of her neck.
38 On 10 July 2009, the plaintiff’s employment with the first defendant was terminated.[10]
[10]See also exhibit C, letter of termination of employment
39 Approximately one-and-a-half months later, again on the recommendation of Professor Davis, the plaintiff underwent fusion surgery to her cervical spine at the C5-6 disc level.
40 Despite the surgery, the plaintiff continued to have ongoing problems with pain and tingling in her neck and right arm. Professor Davis reviewed the plaintiff and further scans of her neck were conducted to monitor the progress of the fusion surgery.
41 By November 2009, the plaintiff was under the care of Dr Terence Lim, pain management specialist. She commenced a pain management program at the North Eastern Rehabilitation Centre (“NERC”) where she had regular treatment sessions including physiotherapy, hydrotherapy and psychology. The program continued during 2010 and 2011. Most of her treatment was as an outpatient, but in August 2010, she was an inpatient for approximately two weeks.
42 In July 2010, the plaintiff was admitted to the Bellbird Hospital for approximately one week for the purposes of a Ketamine infusion in an effort to relieve her pain. By this stage, the plaintiff was taking a variety of medications including Lyrica and Seroquel. Whilst undergoing treatment at the hospital, the plaintiff suffered a “mental breakdown”[11] and then came under the care of Dr Naomi Elliot, psychiatrist. Thereafter, the plaintiff continued with regular psychiatric treatment under Dr Elliot’s care at NERC.
[11]Explained in cross-examination as “Just crying, and couldn’t be around people and ... it’s not me to show feelings in front of people”. T17 – 18
43 Subsequently, the plaintiff was diagnosed with “frozen shoulder” and in October 2012, she was referred back to Professor Davis for assessment. She was also referred to Mr Trung Nguyen, orthopaedic surgeon, for assessment of her right shoulder. X‑rays were taken and Mr Nguyen arranged for the plaintiff to undergo hydrodilatation on three separate occasions.
44 As for the plaintiff’s lower back, on 1 August 2013, the plaintiff was assessed at the Northern Hospital as an outpatient. A further CT scan of her lumbar spine was conducted on 24 January 2014.
45 The plaintiff deposed that she has tried a wide variety of medications since suffering her injuries and that she continues to take a range of prescribed medications to manage her pain and her depression. As at the time of affirming her affidavit in September 2014, the plaintiff was taking Panadeine Forte every day for her pain and Temazepam every night to help her sleep. She was also taking Lexapro and Alprazolam daily for her depression.
46 Despite taking these medications, the plaintiff deposed that she continued to suffer from constant pain in her neck. At times, the pain has a burning feeling:
“… I continue to suffer from pain which comes and goes down my right arm, from my neck and shoulder areas right through to my fingers and thumb. The pain gets worse with any activity. I get cramps in my right hand if I do too much. I also get a feeling of numbness and tingling which comes and goes in my right arm. The feeling gets worse with movement … .
My neck feels stiff and my neck movements are now more restricted. I feel that I have lost a lot of strength in my right arm … .
I continue to suffer from pain and stiffness in my right shoulder with certain movements … .
My ability to pick up and play with my grandchildren has been severely affected by my injuries. I can’t do much with them anymore. This has been very upsetting for me.
I now struggle with even basic activities around the home. I struggle to sleep at night. I only get about two or so hours of unbroken sleep before the pain wakes me up.
I now live a very restricted lifestyle. I suffer from depression. I cry a lot. Before my injuries I was a strong and independent person. I feel very frustrated that I can’t work and do the things that a normal person should be able to do.
Before my injuries I was earning about $35,000 gross per year. As a result of my injuries I have not been able to perform any work since July 2009.”[12]
[12]Exhibit A, affidavit of the plaintiff dated 18 September 2009
Second affidavit
47 In her second affidavit,[13] the plaintiff affirmed that she continues to suffer the symptoms and restrictions outlined in her first affidavit. She did not think the symptoms had improved save that she thought the range of movement in her right shoulder had improved markedly since undergoing the third hydrodilatation. However, the plaintiff continues to experience persistent right shoulder pain.
[13]Exhibit B, affidavit of the plaintiff dated 17 July 2015
48 As for her neck, the plaintiff has learnt to manage her pain and modifies her behaviour to mitigate it. The pain extends to her shoulders and on occasions she experiences a burning sensation or a tingling and numbness in her arms, forearms and hands. Sometimes she suffers flare-ups for no apparent reason. The pain is typically worse during colder weather. She has a constant sense of weakness in the right hand.
49 The plaintiff deposes that her neck pain interferes with her sleep and that she wakes frequently during the night. She sleeps on average between two to three hours and often wakes with headaches.
50 The plaintiff continues to take Panadeine Forte on a daily basis, and Temazepam each night. She also takes Lexapro and Alprazolam daily for her depression. She is trying to reduce her medication intake so as to minimise its effect on her stomach.[14]
[14]Note that Dr Elliot, who has been the plaintiff’s treating psychiatrist for five years, confirms that the plaintiff has difficulty tolerating some of the medications used to treat depression and anxiety – see exhibit BB, page 3
51 The plaintiff still receives regular treatment from her psychiatrist, Dr Elliot, and her general practitioner, Dr Aitken. She has been informed that there is little treatment that can be offered to assist her situation any further.[15]
[15]Confirmed by various medical reports, including from Dr Atkin, exhibit L
52 The plaintiff deposes that her work injury has significantly altered her life in many respects. She avoids tasks such as gardening and other household chores as they cause an increase in her neck pain. She relies on her son, who does the vacuuming, bathroom cleaning, hanging out the washing and gardening duties.
53 Reading and undertaking jigsaw puzzles has become difficult for the plaintiff.
54 Basic activities of daily life including dressing, performing tasks in the kitchen such as peeling vegetables or chopping food are also difficult because they cause the plaintiff’s hand to cramp and cause neck stiffness.
55 Prior to her injury, the plaintiff would perform basic car and house maintenance and enjoyed problem-solving.
56 The plaintiff has always enjoyed working, and tried to keep working for as long as she could, even after sustaining her work injuries. However, she found the heavy lifting, repetitive tasks of pushing, pulling, twisting and bending were too difficult for her to sustain.
57 The plaintiff believes that she will be unable to undertake full-time work given the extent of her symptoms. She also believes that she is very restricted in the type of work that she can perform. She must avoid activities such as pushing, pulling, lifting, twisting, bending or overhead activities, as these activities aggravate her medical condition. In addition, her ability to sit or stand for periods of time is limited.
58 The plaintiff fears for her future as she left school at age fifteen years and is “by no means an academic”.[16] She has always enjoyed manual labour.
[16]Exhibit B, paragraph 10
59 The plaintiff is frustrated, has lost confidence and self-esteem and suffers from panic attacks.
Evidence-in-chief
60 In her evidence-in-chief, the plaintiff confirmed that her neck pain and right arm pain are ever present, although the intensity of pain varies. On waking in the morning, the pain is high, then it comes down a bit. Some days the pain levels out, but on approximately three days per week she suffers flare-ups of pain. When this occurs, the pain extends down her arms, in her neck, up the back of her neck and at the lower neck and through to the fingers on her right arm. When she has these flare-ups, the plaintiff takes extra Panadeine Forte and uses a heat pack.[17] She sits down for a while, approximately 20 minutes or so.[18]
[17]Note that Dr Lim’s reports confirm that as a result of her diagnosed condition, the plaintiff can suffer spontaneous flares of pain – see exhibits R and S.
[18]T12
61 The plaintiff is right handed but as a result of her injury, relies more heavily on her left hand. She has only ever worked using her hands, and has never done office work. She has no trade or academic qualifications.[19]
[19]T13
Cross-examination
62 The plaintiff described her psychological symptoms including anxiety, panic attacks and fear of being in small, enclosed places.[20] She agreed with the suggestion that at about July 2010, her life at that stage was totally dominated by pain.[21] She was questioned about various pain-alleviating medication as prescribed by her general practitioner, Dr Atkin, and their effects upon her. The plaintiff testified that she had been given morphine (Norspan) patches, which had adverse side-effects such as clashes with other medications, and they made her feel “zonked”.[22]
[20]T18
[21]T21
[22]T22. See also the clinical notes of Dr Atkin, exhibit 31, the entry for 5 September 2011 where the general practitioner records the plaintiff as having felt “zonked” on medication.
63 The plaintiff confirmed that her son is her carer and that he receives a government allowance for performing this role.[23]
[23]T23
64 The plaintiff testified that she has difficulty holding items such as a kettle filled with water, because the weight pulls down on her shoulder and that she gets the “shakes” when holding anything that is a bit heavy. However, she is not confined to using only one arm. She also uses her right arm.[24]
[24]T24
65 Taken to a letter written on her behalf by her son dated 1 December 2011,[25] the plaintiff agreed[26] that at that time, she did suffer the symptoms and restrictions identified therein.[27]
[25]Exhibit 1
[26]T28 -32
[27]See summary of the contents of the letter in the chronology above
66 The plaintiff was then asked about the information she gave to Mr McArthur in May 2012,[28] whom she saw on behalf of the defendants. She confirmed that the history of complaints as recorded in Mr McArthur’s report were accurate.[29]
[28]Exhibit 13. See summary of report in the chronology above
[29]T32 - 34
67 Taken to the history of complaints she reported to Dr Thomas,[30] the plaintiff agreed with the accuracy of the information attributed as having been given by her.[31]
[30]Exhibit 15
[31]T34 – 35. See summary of the report in the chronology above
68 Various parts of DVD footage taken of the plaintiff covertly were then played to the Court.
69 First, the footage of 11 December 2011[32] was played. The plaintiff agreed that she was the person depicted on the film. The film showed the plaintiff with her friend at an op shop, where they remained for about an hour. The plaintiff was seen browsing and using her right hand to examine items of clothing. Her friend was pushing a shopping trolley. The plaintiff was seen to bend and move her neck. The plaintiff explained that on the day in question, when her friend arrived, she told him that she was feeling better so they decided to go out for a couple of hours. The plaintiff took extra painkillers in advance of the excursion. She agreed that no real restriction was shown on the film when she used her right arm; however, she explained that she felt pain when engaging in the sorts of activities depicted regardless of whether this was seen on film.[33]
[32]Exhibits 2 and GG. A question arose whether this footage was taken on 9 or 11 December. It is likely that the correct date is 11 December, but nothing turns on it (T41).
[33]T37 - 38
70 The second film to be played was also recorded on 11 December 2011. The plaintiff and her friend were seen at the Bundoora Hotel.[34] The plaintiff was filmed seated in front of a poker machine which she was seen to play using her right arm, although at times she used her left to feed coins into the machine. She denied sitting in the same position for over an hour. She testified that she left the machine to go out and smoke a cigarette, and at other times, she moved about inside the hotel.[35] It seems to me that this evidence is confirmed by the film, which does show the plaintiff moving away from her chair and sitting and standing at various times in the relatively short period she was inside the hotel.[36] I should also note that the recording was not continuous, meaning that not all of the plaintiff’s activities were captured on film. The photographer chose at his/her absolute discretion when to stop and start the recording. The plaintiff stated that even if no “observable” signs of pain were evident, she had taken extra painkillers before she went out that day, as she does not go out very often.[37] In addition to Panadeine Forte, the extra medication she took before going out comprised of Seroquel, Lyrica “and a couple of other ones, [which were “left over” from a hospital stay],[38] so I had a very relaxing day”.[39] The combined effect of the medication made the plaintiff feel “very, very, very spacey”.[40] The plaintiff knew she should not have taken those pills,[41] but took them anyway, knowing she would be going out on this rare occasion.
·30th June, 2015;
·2nd July, 2015;
·15th August, 2015;
·17th August, 2015.
Economic loss consequences
11.The court should find that there is no employment for which the Plaintiff is suited when regard is had to the Plaintiff’s age (57), her education (to age 15), her work experience (factory work), the nature of the Plaintiff’s injury (requiring cervical fusion surgery), the concession by the Defendant that her physical injury has serious consequences (and separately that her psychiatric injury has severe consequences).
12.The following medical evidence is of relevance:
(i) Dr Atkin –
“I do not think Lilian has a capacity to do any work in the foreseeable future” (PCB-70A, Exhibit M).
(ii) Mr Brownbill –
“She would not be able to perform suitable employment in an ongoing and reliable fashion (PCB-108, Exhibit Z).
(iii) Dr Sillcock –
I do not believe that she has a capacity for suitable employment (including work as a product examiner, inquiry clerk or packer) (PCB-119, Exhibit A).
13.The Court should be particularly attracted to the unchallenged evidence of Dr Atkin, as she is the Plaintiff’s long term treating general practitioner, who has seen the Plaintiff on numerous occasions.
14.The following submissions are made in relation to Dr Clayton Thomas’ medical opinion[229]:
[229]DCB 61-66 Exhibit 15 & 16
(i) He was of the opinion that the Plaintiff could not return to unrestricted employment (presumably of the type she had done during her working life).
(ii) She would not be able to work in customer service such as a bank worker or customer service assistant.
(iii) She had the capacity to work as a call centre operator and product examiner. He was entirely reliant upon presumably the NES Vocational Assessment report dated 12th October, 2010 (Exhibit 23) which provides virtually no detail concerning the nature of the work duties, daily activities, work environment and need for sitting and standing etc.
(iv) His opinion is based upon one medical examination that took place over 3 years ago.
15.In relation to the medical opinion of Mr McArthur[230], the following points are made:
[230]DCB 51-60 Exhibit 13 & 14
(i) His opinion is generally inconsistent with the concession made by the Defendant concerning serious injury for pain and suffering purposes.
(ii) The Plaintiff is fit for modified duties with restrictions including repetitive bending, lifting or use of her right hand in a repetitive and forceful fashion.
(iii) He was of the opinion that the Plaintiff probably could not work as a product examiner or packer as this would require her to use her right hand in a repetitive forceful fashion. He was of the opinion that the Plaintiff could work as an inquiry clerk.
16.The evidence of Dr Atkin (the Plaintiff’s treating general practitioner), Mr Brownbill (June 2015) and Dr Sillcock (10 June 2015) should be preferred over the Defendant’s medical evidence, particularly as they are commenting upon the Plaintiff’s condition now, that is in 2015, rather than in 2012.
17.The concession by the Defendant that the Plaintiff has a Serious Injury for pain and suffering purposes sits more comfortably with the evidence of Mr Atkin, Mr Brownbill and Dr Sillcock, rather than the evidence of Mr McArthur and Dr Thomas. For example, Mr McArthur comments that the actual medical restrictions that the Plaintiff has “appear to be minimal”.
18.The Court should find that when regard is had to all of the evidence, it is satisfied that there is no employment for which the Plaintiff is suited.
Dated: 28th August, 2015.”
Annexure “B”
“DEFENDANT’S OUTLINE OF SUBMISSIONS
Introduction
The defendant has, pursuant to the relevant Litigated Costs order, served a notice that the plaintiff has suffered a serious injury for pain and suffering purposes only.
Thus, the defendant consents to an order that leave be granted to the plaintiff in this way only.
However, the defendant’s primary submission is that the court ought not be satisfied on balance that the plaintiff has satisfied the second limb of the “serious injury” test under s 134AB(38)(b)(ii) of the Act.
It is noted that the plaintiff in opening sought to focus on the physical aspect in particular the neck injury.
The defendant submits that the plaintiff must demonstrate that due to the plaintiff’s neck injury (stripping away the psychological consequences in accord with relevant authority) that she satisfies the economic loss definition of serious injury.
The fact of a concession for pain and suffering purposes on the basis of its Notice under the above mentioned costs order, does not preclude the defendant from contesting serious injury in a variety of ways at hearing.
Evidence
It is submitted that the plaintiff has exaggerated her limitations in relation to her neck injury and right arm consequences, borne out by the following aspects (not necessarily in order of importance).
First, there are a number of instances where the picture painted by the plaintiff in her supporting affidavits do not sit comfortably with the plaintiff’s viva voce evidence and the surveillance footage shown in this case.
For example, in the plaintiff’s most recent affidavit, the plaintiff swore as follows (Exhibit B)
I find reading and undertaking jigsaw puzzles most difficult and even the simple task of putting on my bra becomes troublesome. In the kitchen – tasks such as peeling potatoes/carrots or even chopping ingredients will cause my hand to cramp and cause neck stiffness.
It is submitted that this account paints a very different picture to the level of functioning and degree of discomfort experienced by the plaintiff in her right upper limb and hand when compared to, for example, the surveillance of 2 April 2015 (not long before the plaintiff swore her second affidavit).
The plaintiff has also said that her surgeries did not really assist her symptoms. However, the medical evidence demonstrates a good outcome (clinically speaking) from the surgeries.
In addition, the plaintiff in various parts of her viva voce evidence, described her consequences in ways that were in conflict with the surveillance footage, for example:
a.T24 holding anything a bit heavy;
b.T24 very difficult above shoulder height;
c.T26 lifting pots and pans;
d.T70 fair to say avoid using right arm as much as possible;
e.T73 – told Dr Silcock that I wasn’t doing physical, yes.
Further, the histories given to various medico-legal doctors in this case upon whose opinions the plaintiff’s case relies are infected with the same level of inconsistency when compared to the surveillance.
The plaintiff has given a history to various doctors about the significant pain consequences of her injury including as follows:
a.Exhibit Y Mr O’Brien – page 2 – the pain is aggravated by using the right arm…constant sense of weakness in the right hand. Persistent right shoulder pain and associated stiffness;
b.Exhibit AA (Dr Silcock) – she uses her left hand for almost everything;
c.Exhibit CC (Dr Kaplan) her right hand tends to cramp when she performs repetitive tasks or holds object for any length of time;
d.Exhibit DD (D. Forster) – numbness pins and needles and cramps with activity such as gripping or holding objects…at page 3 – she stated that she needs to use her left arm to undertake most activities;
e.Exhibits 13 (Mr McArthur): page 3 of the report – she avoided using her right hand as much as possible and depended on her left non dominant hand for everyday tasks, and unable to lift right arm above the horizontal due to pain and weakness;
f.Exhibit 15 (Dr Thomas) – difficulty carrying objects…some neck stiffness.
However, the surveillance is inconsistent with the presence of disability at the level the plaintiff asserts in the function of her neck and right upper limb and makes it unlikely that she suffers from the ongoing pain identified in many of the medical opinions. The flavor of the above histories is that the plaintiff is very significantly limited in using her right arm.
It is submitted that the plaintiff’s complaints of pain and disability are more likely overstated.
However, the main doctors upon whom the defendant relies have viewed some of the footage and it is submitted that what is seen in the surveillance footage fits well with their opinions.
The court also ought bear in mind that the plaintiff’s treating surgeon has said as follows:
a.Exhibit 10 – excellent post operative radiological result;
b.Exhibit 11 – reviewing the hand function today, there is such marked improvement compared to the pre operative state that it is clear that the surgery has been a complete success.
Further, the plaintiff’s treating psychiatrist has opined (exhibit BB): from a psychiatric perspective, Lilian Stewart is capable of working.
Surveillance
The footage shown in court does not demonstrate the faintest sign of the plaintiff favouring her right hand/upper limb and no hesitation with her neck movements.
In the 2011 video (exhibit 2), the plaintiff is able to perform a variety of movement with her right arm including gripping clothing with outstretched arms and above shoulder movements for an extended period. There is bending and free flowing neck movements. The movement of the right arm is repetitive and sustained. There is apparently unimpaired flexion and abduction of the right shoulder in selecting clothes off racks.
In 2014 (exhibit 3) there is no apparent difficulty in relation to the plaintiff’s neck.
In 2015 (exhibit 4) the plaintiff appears to perform physical activity with no apparent impairment or restriction whatsoever. It is submitted that the use made of the plaintiff’s neck and right upper limb and hand was remarkably normal in this film.
The plaintiff endeavoured to explain away the 2011 footage essentially on the basis that medication assisted her.
However, this ought not be accepted as sufficiently explaining the footage. Further, the plaintiff has said that she knew about the 2011 footage but there is no explanation in the plaintiff’s supporting affidavits, in circumstances where it is submitted the Court ought to have expected one.
Of note is at T-73, in relation to the April 2015 footage, the plaintiff stated I was never shown this. No acceptable explanation was given by the plaintiff about this footage in during cross-examination. The plaintiff stated there are different ways of lifting and doing things. This does not gel with the very normal manner the plaintiff was performing the activity depicted in the footage.
Thus, it is submitted that any persisting impairment of function and pain is not great, and certainly not such as to render the plaintiff totally incapacitated and permanently so, for suitable employment.
Further, as noted by the Court in the case of Qarshi v Bowell Corporation Pty Ltd [2013] VCC 1084, the defendant doctor’s in that case had access to the surveillance material, whereas many of the plaintiff’s experts were ignorant of this material. Thus, in that case, it was found that the objective evidence was inconsistent with the presentation to some doctors. It is submitted that those observations are apt to be applied in the present case.
Indeed, this case concerns subjective pain and thus the plaintiff’s account of the extent of the pain consequences ought be rejected, bearing in mind that various surgeons in this case largely failed to distil significant objective clinical signs of injury:
a.Mr O’Brien: at p4 opines that the physical signs are predominantly subjective;
b.Mr Brownbill Exhibit Z, p 5: no objective neurological abnormality of the upper or lower limbs, no signs of radiculopathy or myelopathy;
c.Exhibit 20 Mr Shannon, p4: full active extension rotation and flexion of elbow and right upper limb reflexes present, no relative wasting of the arm or forearm by comparison with the other side, grip strength equal and abduction of fingers equal within normal limits, no objective evidence of radiculopathy.
It is submitted that the persuasive force of a particular doctor’s opinion would be influenced by whether the doctor had detected objective signs of disability, and on balance, the plaintiff’s doctors have failed to do so.
The defendant does not seek the Court to drawn an adverse inference on the basis that the doctors upon whom the plaintiff relies had not been shown the films.
Rather, it is submitted that the Court ought treat those doctors principally upon whom the plaintiff relies, with a great degree of reservation.
Thus, the persuasive force of the plaintiff’s expert medical reports, ought be weighed against the fact that the plaintiff, in the defendant’s submission, exaggerated her presentation.
Occupational evidence
In relation to the ability to work, Dr Silcock (Exhibit AA) has noted the plaintiff’s good literacy and basic computer skills. Importantly, Dr Silcock on examination found normal range of wrist and elbow movement with no signs of ulnar nerve conditions. In relation to the jobs the defendant submits are suitable, Dr Silcock has opined that Ms Stewart has very limited use of her right arm and restriction of neck movement. However, for the reasons above stated, this limitation ought not be accepted and thus this finding by Dr Silcock, undermines her opinion as to capacity for these job options.
This criticism applies to the opinion of D.Forster at exhibit DD. Her opinion is thus undermined and ought be rejected.
Conversely, Mr McArthur and Dr Thomas (a rehabilitation expert) have opined what ought be accepted by the Court as being the more likely scenario:
a.Exhibits 13 and 14 (Mr McArthur): page 8 the prognosis is good and incapacity is minimal, and could perform job of inquiry clerk regularly and consistently;
b.Exhibit 15 Dr Thomas, page 3 – capacity to be a call centre operator and product examiner, and a capacity to participate in vocational retraining;
c.Exhibit 16 Dr Thomas page 1 – could work as an enquiry clerk full time as well as a packer (depending).
Further, a medical panel, whilst not binding on the court, is highly relevant in the circumstances of this case, whereby (exhibit 21) it was found by the medical panel (as at December 2013) that the plaintiff has a current work capacity.
The defendant’s NES report (exhibit 24) at page 6 sets out what is required of an inquiry clerk. Importantly, no previous education or qualifications are required and the job is light, without repetitive use of the right arm. Further, the plaintiff has had some experience in clerk type work, and reference is made to exhibit 30. Further, at T-76 the plaintiff agreed she had done supervisory work.
At page 7, the packer job as described also constitutes suitable employment as that term is defined.
It is submitted that the Court ought find that in fact the plaintiff is able to use her right arm to an extent that would enable her to perform a variety of light work type roles bearing in mind the definition of suitable employment. For example, Exhibit 22 lists assembler and process operator (light applications only). These are suitable options.
It is the plaintiff who bears the onus of satisfying this court that her physical injury, taken alone, incapacitates her for all work and is likely to continue to be productive of the 40% financial loss required by the Act.
It is submitted that the plaintiff has not discharged that onus.
Lay affidavits
It is submitted that the lay affidavits do not assist the plaintiff.
First, exhibit D – describes the plaintiff as an ‘elderly’ fragile woman (page 4. This does not sit well with the surveillance footage.
Exhibit E – this affidavit is problematic. It fails to even mention the date of the work injury and concedes that “I don’t ask too many questions”. The last sentence of paragraph 7 does not assist, nor does paragraph 8. Overall, it does not assist the Court.
Legal aspects
The plaintiff bears the onus of proof on whether or not she satisfies the relevant threshold for leave to issue a proceeding for economic loss damages.
The court is not required to adjudicate upon the pain and suffering consequences aspect of leave.
In this case, it is submitted that it is an “all or nothing” case such that if the plaintiff is found to have a current work capacity, then she ought not be granted leave for economic loss damages.
Thus, the defendant submits:
a.The plaintiff has exaggerated her symptoms and has a residual capacity for suitable employment on the basis of her neck injury only;
b.That the plaintiff’s main complaint is of subjective neck pain, and there are significant inconsistencies borne out by the surveillance footage, discounting the weight that ought be accorded to the reports upon which the plaintiff relies;
c.Psychologically speaking, the plaintiff has a fitness for work upon her own treating psychiatrist’s opinion;
In Papamanos v Commonwealth Bank of Australia [2014] VSCA 167, the appellant’s principal focus at trial was on the consequences of the physical injury. Surveillance was shown and the trial judge accepted the video should be seen in the context of representing only a very brief excerpt from the plaintiff’s life. However, in that case the trial judge formed the conclusion that the neck movement shown in the surveillance was inconsistent with the plaintiff’s presentation to the doctors and to the court. It was said these inconsistencies cannot be explained on the basis that her neck is better on some days than others.
It is submitted that similarly, this explanation ought not be accepted in this case.
Reference was then made by the appeal court to Palmer Tube Mills [1998] 4 VR 439 at 448, where credit of the applicant in serious injury applications is usually of great importance. Then the appeal court returned to the video surveillance where it stated that the film there on its own, was not “killer” video.
However, from the film, in that case, and submitted in the present case, one would not know that the plaintiff suffered from any serious debilitating neck injury. The film in that case, as in the present case it is submitted, shows the plaintiff moving her neck in a totally normal fashion.
On the issue of the relevance of the concession for pain and suffering purposes on the basis of the Notice served under the applicable costs order, reference is made to a number of county court decisions which, although not binding, ought be followed for reasons including comity of decisions in the same jurisdiction of this court.
For example, in Trotman v AVS Group of Companies [2015] VCC 1054, her Honour Judge Bourke was called upon to decide a case where the defendant had given notice under the relevant costs order that it was satisfied of the pain and suffering consequences constituting serious injury but not as to the requirements of economic loss.
Judge Bourke in that case assessed the consistency of the plaintiff’s complaints of pain. However, in that case, there was no surveillance shown.
Thus, it is submitted that the defendant is not constrained narrowly in a way such that unless the video equates to the ability to perform suitable employment, then the plaintiff ought be successful.
Rather, it is submitted that the surveillance can be utilized in a broad sense to attack the manner and way in which the plaintiff is impaired by her injury which then impacts upon the question of economic loss consequences.
Thus, overall, when adjudging the whole of the evidence, this court ought opine that the plaintiff has a current work capacity.
The opinions of doctors upon whom the plaintiff relies are premised upon an acceptance of the plaintiff’s presentation and complaints. There is significant disparity. The plaintiff ought not be accepted as reliable or accurate in relation to the extent of her consequences and in particular, her pain.
Leave to proceed in respect of economic loss ought be dismissed.”
Annexure “C”
“PLAINTIFF’S FURTHER OUTLINE OF SUBMISSIONS
15.The Defendant has consented to an order that the Plaintiff obtain leave pursuant to s.134(AB)(16)(b) on the basis that the injury to her neck constitutes a serious injury pursuant to Sub-section (a) of the definition of serious injury and the psychiatric sequelae constitutes a serious injury pursuant to sub-paragraph (c) of the definition of serious injury.
16.The concession referred to above constitutes an issue estoppel – see:
· Brumar (Vic) v. Norris; Brown v. Maurice Blackburn Cashman (2010) VSCA 206 (25th August, 2010).
17.The Defendant is estopped from disputing or questioning the finding that the Plaintiff has:
(a) Permanent serious impairment or loss of body function; and
(b) Permanent severe mental or permanent severe behavioural disturbance or disorder; and
(c) Consequences that are either serious or severe as required by Sub‑sections (16) to (19) of the Act (see Brumar, para.16 & 18).
18. In relation to sub-paragraph (a), the estoppel includes the fact that the Plaintiff:
(a) Suffers an injury arising out of or in the course of her employment;
(b) It is permanent;
(c) The consequences of any impairment or loss of body function are serious.
19.Mr McArthur found that the Plaintiff was “manufacturing symptoms in her neck, right shoulder, right upper limb and lumbar spine for secondary gain” and that “restrictions of movement of the neck, right shoulder and lumbar spine was voluntary in nature” (Exhibit 13).
20.In relation to this diagnosis, the following submissions are made:
(i) The court should find that the Defendant is estopped from relying upon this evidence given their concession. His opinion is inconsistent with the concession. As such, his opinion about the Plaintiff’s capacity can be of little assistance to the court.
(ii) In the alternative, if the Defendant is not estopped from relying upon this evidence, any weight put to this evidence should be minimal in light of the concession.
21.In relation to sub-paragraph (c), the estoppel includes the fact that the Plaintiff:
(a) Suffers an injury arising out of or in the course of her employment;
(b) It is permanent;
(c) The consequences of the mental or behavioural disturbance or disorder are severe.
22.The evidence of Dr Jones (Exhibit 19) was that the Plaintiff (at that time) had an adjustment disorder with anxiety of a mild degree. The Defendant is estopped from relying upon this given their concession and as such, his opinion concerning work capacity is of little assistance to the court.”
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