Streader v Thompson
[2014] VCC 339
•31 March 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04065
| VICKY ANN STREADER | Plaintiff |
| v | |
| GEOFFREY THOMPSON | First Defendant |
| - and - | |
| GROWERS CO-OPERATIVE PTY LTD | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 25 and 26 February 2014 | |
DATE OF JUDGMENT: | 31 March 2014 | |
CASE MAY BE CITED AS: | Streader v Thompson & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 339 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right shoulder – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meats Co (2007)VSCA 267
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with Mr R Morrow | Slater & Gordon |
| For the Defendants | Ms K Galpin with Mr D Oldfield | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the first defendant on 22 June 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right shoulder.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
15 The plaintiff relied on two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is aged fifty nine years, having been born in August 1954. She is in receipt of a Disability Support Pension. She and her husband, an interstate truck driver, live on a four-acre hobby farm with their daughter’s family at Wunghnu.
17 The plaintiff commenced but did not finish Year 8, and then stayed at home until 1970. She then worked at Greenvale Geriatric Hospital as a nursing aide and night phone operator for twelve to eighteen months, and then for a further six years as a domestic food assistant.
18 The plaintiff was then absent from the workforce whilst she raised her family.
19 The plaintiff then worked as a cleaner for about a year, before starting work with the first defendant on 26 August 1996. She was employed as an assembly process worker. She enjoyed her work, although it was physically demanding.
20 The plaintiff hurt her back in about 2001. Physiotherapy was not then effective. However, about four or five chiropractic treatments caused her to make a good recovery and she was able to return to work on unrestricted duties.
21 In cross-examination, the plaintiff agreed she was off work for about six months following June 2001 and she was then on modified duties for a year. She also hurt her right shoulder at that time – “sprained it a little bit”.[3] She did not think about this strain at all, as she was off work for only a couple of days; thus, she did not tell doctors about it.
[3]Transcript (“T”) 15
22 The plaintiff had further lumbar pain and had a year off work, but she was unsure of the date. She could not recall hurting her lower back packing.
23 The plaintiff had not received treatment for depression from her general practitioner before 2007.[4] She could not recall being diagnosed and suffering from chronic pain before being injured at work in 2007.
[4]T23
24 The plaintiff disagreed her attendance at work was sporadic from 2001 to 2007. She could recall once having pneumonia during that period.
25 In her viva voce evidence, the plaintiff described in some detail her three main work tasks with the first defendant. One involved putting a cut out of a box in a machine which made cardboard boxes. This job was initially done by two workers and then by the plaintiff alone from about 2002. The second job involved assembling and moving plastic crates onto a railing. The third job involved packing fruit into crates (“the work duties”).[5]
[5]T11
26 In 2007, the plaintiff’s work became more and more demanding. The pace became faster and she had to work harder to keep up. Expectations of her increased at the workplace and it became quite a difficult time for her.
27 By about June 2007, the plaintiff started getting pain in her right shoulder. Initially, she did not take too much notice of it, because aches and pains were just part of the job. However, the pain over time spread down her right arm into her hands, causing numbness. In particular, her two little fingers were often numb.
28 The plaintiff agreed that her initial shoulder pain went all the way down her arm; she had a numbness in her fingers and pain on the right side of her neck.[6]
[6]T24
29 In about June 2007, the plaintiff attended Dr Sneyd at Wyndham House Clinic, because she was becoming increasingly concerned about her right shoulder pain and numbness.
30 The plaintiff then had about two weeks off work, hoping rest would fix her condition. She then returned to work on what were supposed to be modified duties but they were the same as she had been doing previously. She experienced fluctuating symptoms with flare-ups, struggling at work for the remainder of 2007.
31 In about August of that year, the plaintiff had a cortisone injection in her right shoulder but it made no difference. She was prescribed some analgesics but had bad side effects, including nausea and disorientation. She developed uncontrollable jerking where her body would move forward very rapidly, like a muscle twitch. This was a problem until recent times. The jerking had stopped since all the medication had completely gone out of the plaintiff’s system.[7]
[7]T39
32 The plaintiff associated the onset of that problem with the prescription of Lyrica at the end of 2007.[8]
[8]T24
33 The plaintiff could not recall telling Dr Sneyd in February 2008 that she was depressed. She could not recall then being prescribed Effexor. The plaintiff could not recall telling him that she was much better on her “new meds” and her pain control was much better later that month. The plaintiff’s pain has always remained the same.[9]
[9]T26
34 The plaintiff was referred to Mr Lyons, orthopaedic surgeon, and Mr Brooder, neurologist. She also was treated by Dr Guymer at Wyndham Clinic.
35 The plaintiff was told there was nothing doctors could do for her, and that was quite frustrating. She also gained the impression from some doctors that they thought the problem was in her head, which caused her embarrassment and a great deal of frustration.
36 In August 2008, the plaintiff started physiotherapy with Mark Tamary, which she found quite helpful, but unfortunately he left the practice.
37 The plaintiff was then referred to Dr Lim, a pain specialist, whom she found to be very good and understanding. He suggested some treatment, which she understood to have been rejected by WorkCover.
38 In about late 2008 or early 2009, the plaintiff was put on quality control work, but she found the role still involved a lot of lifting and packing, stacking boxes weighing about 8 kilograms or so. She found this task very difficult and struggled because of her ongoing shoulder, arm and hand symptoms.
39 In about May or June 2009, the plaintiff had six weeks off work because she just was not coping due to her ongoing right shoulder and arm pain. She increased her medication, as suggested, but it “zonked” her out and made it very difficult for her to concentrate.
40 The plaintiff was able to return to work on part-time modified hours in July 2009, working four to five hours a day, three days a week. She was then working on pre pack, putting fruit into small supermarket trays.
41 Unfortunately, the plaintiff found she was experiencing increased pressure at work, making her feel that she was not doing her job properly and she was under pressure to resign. She could not cope with the physical or emotional demands of going to work because of that pressure and her inability to do her work properly. Thus, the plaintiff resigned in October 2009.
42 The plaintiff was suffering very badly emotionally at that time. A retraining program was offered to her by the insurer but she just could not face it physically or emotionally. She wanted to have a rest and see if she could improve. She was totally worn out and depressed.
43 The plaintiff was referred to a neurologist, Ms Reardon, in about July 2010. An MRI scan was undertaken and the plaintiff was told there was some damage in her right shoulder but surgery was not warranted.
44 As of her March 2012 affidavit, despite ceasing work, the plaintiff continued to experience constant right shoulder and arm pain, varying in intensity, being worse on any physical movement. She had been warned by her doctors to “use it or lose it” and to try and keep as active as possible by doing home exercises. She paced out her housework in small steps and rested in between, because that was the only way she was able to manage. She avoided the more difficult tasks as much as possible.
45 At that stage, the plaintiff’s right shoulder pain sometimes spread up to her neck and into the right side of her head, causing headaches on a regular basis. The pain also spread down her right arm, and her two little fingers throbbed with pins and needles. She was then still in a very bad way physically, with her ongoing right shoulder pain.
46 The plaintiff found it too difficult to undertake gardening because, generally, it was too demanding and aggravated her pain. She left most of it to her husband and tended to do light pruning and light jobs of a similar nature.
47 The plaintiff had been prescribed various medications, including Effexor, Cymbalta, Lyrica, Lexapro, Pristiq and Escitalopram. A lot of those gave her very bad side effects and she became depressed for a while. However, she reduced her drug intake in about early 2011.
48 When she swore her first affidavit in March 2012, the plaintiff was taking Codalgin Forte, prescribed by Dr Guymer. He had also arranged a mental health community visit which she found quite helpful.
49 The plaintiff had continuing pain and difficulties with sustained elevation of her right arm, although her arm felt somewhat better after she ceased work. She then felt she could do some light work part time but did not know where that work would be. She has had very limited experience in the job market and no qualifications.
50 The plaintiff’s upper arm injury had also affected her life in other ways. She was now more restricted in what she could do socially. She previously went 10-pin bowling once every two months but had not been able to return to it, having tried once but it hurt her shoulder too much.
51 Prior to her injury, about four or five times a year, the plaintiff went rock and roll dancing with her husband. She could not do so anymore because it was too demanding on her right upper limb and she could only slow dance with him without lifting her right arm.
52 The plaintiff had always enjoyed riding motorbikes and, before her injury, had three motorbikes plus a mini quad bike. Riding the motorbikes was no longer possible as using the throttle and the clutch put too much strain on her right arm.
53 The plaintiff was able to continue driving a car but avoided long distances as that affected her right shoulder and the two little fingers on her right hand.
54 The plaintiff found it very difficult to sleep because of right-sided pain and she often had a broken sleep pattern as a result.
55 The plaintiff became very frustrated and sad that she could not fully participate in activities with her young grandchildren because of her shoulder pain.
56 The plaintiff’s back pain flared up again in 2012, and in the previous six months, she had sometimes experienced occasional left leg pain. However, she felt her back and leg pain was manageable and certainly nowhere near as severe as the ongoing pain she experienced in her right shoulder and arm.
57 In her most recent affidavit sworn in May 2013, the plaintiff confirmed she continues to suffer ongoing shoulder pain, going down to her hand, the worst pain being localised in the shoulder. The pain is constant and varies with activity. In addition, she has numbness and pins and needles in the two fingers and a loss of feeling. Occasionally she drops things from her right hand.
58 The plaintiff continues to see Dr Guymer about every three months. He prescribes Codalgin Forte and Pristiq. The plaintiff still takes six Codalgin Forte a day. Each prescription lasts for six months.
59 The plaintiff’s right arm pain has stabilised over the last year but it is not improving. In addition to constant pain, she gets a burning pain on the top of her shoulder.
60 Throughout 2012, the plaintiff continued to try and get WorkCover to help her with retraining and rehabilitation. She constantly attended QBE in Shepparton asking for help and retraining but received no response.
61 The plaintiff was eventually forwarded a form for an assessment which she completed in 2012, but she had never received a response in relation thereto. After having handed in the form, the plaintiff visited the Shepparton office three or four times to see if any progress had been made with her application but nothing happened. She had given up trying to contact the insurer as she had had no response.[10]
[10]T35
62 The plaintiff is not aware of any work she has a capacity to perform but she would like to retrain to see what is possible. She is not sure what type of retraining she could do. She applied for a job as a commercial cleaner, working twenty hours per week, with her daughter making that application on the internet. The plaintiff does not look at jobs on the internet herself. She has no computer training.
63 The plaintiff would be prepared to try working in a cannery which was a lighter job than her work with the first defendant. However, the work is repetitive when bad fruit has to be put down the shute. The job varies depending on the area worked in the cannery.
64 The plaintiff is able to lift her right arm but doing so causes pain. She tries to avoid lifting it above shoulder height as the pain worsens.
65 The plaintiff does her washing on a weekly basis and manages to hang out the clothes. She mostly uses her left arm as using her right worsens her pain. The plaintiff has to do a lot of things around the house as her husband is an interstate truck driver. She does vacuuming and sweeping which causes her pain. She is slower doing these tasks and has to take rest breaks.
66 The plaintiff managed to do 10-pin bowling on a wii about a year ago, but just gentle bowling caused her right arm pain to worsen. Since that time she has avoided 10-pin bowling. She has lifted a ball at home and found the weight hard to handle.
67 The plaintiff was unable to help her family moving furniture during the floods in March 2012.
68 The plaintiff tried rock and roll dancing six or seven months ago with her husband but lasted about five minutes before the pain down her right arm became intense. In the past, the plaintiff attended dances regularly and even participated in a 19-hour dancing marathon.[11]
[11]T42
69 The plaintiff continues to go shopping on a weekly basis, mostly with her daughter. Sometimes the plaintiff carries the shopping in her right arm but she prefers to use her left.
70 The plaintiff often drives to her daughter’s house in Shepparton, about fifteen minutes away. When the plaintiff needs to go to Melbourne, either her daughter or her husband drives.
71 At night, the plaintiff wakes up two or three times a week due to right arm pain and she takes extra medication to try and get back to sleep.
72 The plaintiff continues to be frustrated by her inability to interact with her grandchildren, who are aged between seventeen and twelve months. Cuddling the smaller ones gives her pain. Before she was injured, the plaintiff enjoyed grabbing, chasing and throwing the children around. She has missed that opportunity with her younger grandchildren.
73 In March 2013, the plaintiff went on a cruise with her husband around the South Pacific. She developed extreme pain in her right shoulder when she tried gentle swimming. She had to lie down and take extra medication.
74 The plaintiff was not able to get involved in speciality Hawaiian nights involving dancing. She sat around with her husband and watched. He had to help her lift heavier luggage on the trip.
75 The plaintiff greatly misses going to work. She loved her job. It kept her fit and she enjoyed the company of the girls at lunchtime and ‘smoko’. It was very important for her to achieve things at work and she enjoyed doing different tasks.
76 At home, the plaintiff has two horses, chickens, birds, dogs and cats. She manages to toss a bit of hay in a bucket to the horses, trying to use her left hand mostly. She manages to feed the chickens using a bucket which she fills from a large tin. She takes the bucket to the feed tray. Although she can manage to do so with her right hand, this generally results in worsening of her pain. Similarly, when she tries to do weeding from time to time, she is limited as a result of her injury.
Financial Year ending Gross Income
from Personal Exertion
30 June 2004 $23,806 30 June 2005 $24,611 30 June 2006 $36,204 30 June 2007 $32,057 30 June 2008 $30,084 30 June 2009 $26,834 30 June 2010 $17,503
Treaters
77 Dr Guymer, the plaintiff’s general practitioner, reported in May 2013.
78 Dr Guymer diagnosed right shoulder injury from repetitive use – subacromial bursitis, trapezius muscle, Regional Pain Syndrome with pain extending from the neck down to the right arm and depression secondary to chronic pain as a result of the work injury.
79 Dr Guymer noted that the plaintiff continued to be seen regularly due to ongoing depression, neck and left shoulder pain as a result of having to use it for all domestic activities, and pain down her right arm. He noted the plaintiff had ongoing sleep disturbance, lowered mood and truncal jerking movements which were very embarrassing for her.
80 Dr Guymer thought the plaintiff had not improved since her injury and, at this stage, the likelihood of improvement was low.
81 Dr Guymer considered that for the foreseeable future the plaintiff was prevented from using her right arm to lift, push or pull or any overhead activity. The injury had also reduced her fine motor skills when using her right hand. He noted these impairments were considerable, severely impacting upon her ability to undertake domestic duties.
82 Dr Guymer thought that the plaintiff had no capacity to do her pre-injury work as a fruit sorter and packer, noting that one-handed domestic duties were already making her left shoulder painful.
83 Dr Guymer considered the plaintiff was unable to perform alternative duties or employment as a result of her injuries. He thought that in two years such work may be possible if there was some improvement, enabling her to do part-time work, three hours a day, three days a week, requiring only her left hand. However, it was hard to think of a possible job.
84 Dr Guymer noted the plaintiff has had her social and recreational activities severely impacted by her shoulder injury and she required assistance with household tasks.
85 Dr Guymer thought the prognosis was guarded, since the plaintiff had not improved over the last six years. He expected her to have ongoing right shoulder pain with intermittent severe exacerbation of the pain and fluctuating control in her depression.
86 Dr Guymer thought the plaintiff may develop arthritis in her shoulder in the future. However, she could not be worse off than at present. He considered she was at risk of having chronic depression secondary to a Chronic Regional Pain Syndrome. He strongly recommended assessment by a pain management physician as suggested by Dr Crump.
87 Dr Brooder, consultant neurologist, examined the plaintiff on one occasion in May 2009.
88 Following that assessment, Dr Brooder thought it most likely the plaintiff had initially developed pain of a musculoligamentous origin, which was associated with secondary muscle spasm, including a right scalenus syndrome. However, he thought it was also possible the plaintiff may have sustained a cervical intervertebral disc injury.
89 Dr Brooder noted neurological examination of the plaintiff’s upper limbs revealed a somewhat variable global muscle weakness involving her right arm and, more particularly, her ulnar innervated intrinsic right hand muscles. Sensation was slightly impaired along the ulnar aspect of her right hand extending into her little finger in the ulnar aspect of her right finger.
90 Dr Brooder noted that it was considered that during work in July 2007, the plaintiff had initially developed pain of a musculoligamentous origin which was then associated with secondary muscle spasm that had induced a right scalenus anterior syndrome. However, it was also considered possible that she may have sustained a cervical intervertebral disc injury, and further investigations were needed in that regard.
91 Dr Brooder noted that although the plaintiff had had a CT scan which was reported to demonstrate a slight bulge of the C3-4 intervertebral disc, apparently the plaintiff had not had the recommended MRI scan.
92 Dr Brooder thought as it appeared that the plaintiff’s condition was of a soft tissue or musculoligamentous aetiology, and that the available radiological investigations had not demonstrated any underlying significant structural abnormalities, that a prognosis concerning her condition appeared to be quite favourable. He thought it would be unlikely that she was at any increased risk of developing arthritis.
93 Dr Nicholas Crump, neurologist, examined the plaintiff at the request of Dr Guymer in 2012 with regard to chronic right arm symptoms.
94 On examination on 27 October 2012, Dr Crump noted the plaintiff’s symptoms had developed in the context of a workplace injury and, despite the absence of any clear physical explanation, the symptoms were certainly in keeping with a quite severe Chronic Pain Syndrome. He noted investigations were normal.
95 Dr Crump tried to reassure the plaintiff that he did not believe the symptoms were psychosomatic and that chronic pain syndromes are extremely common after an injury such as hers. He thought what the plaintiff really needed was a multidisciplinary approach, such as that recommended by Dr Lim. He noted that, for whatever reason, that course had been refused by WorkCover.
Investigations
96 Dr Reardon organised an MRI scan of the plaintiff’s right shoulder in 2010. It was reported there was rotator cuff disease with no significant acute tear detected. There was a longitudinal split of the biceps tendon within the groove. There was severe AC joint arthritis with static signs of impingement of the supraspinatus.
97 An MRI scan of the plaintiff’s brain and spinal cord was organised by Dr Reardon in August 2010. It was reported there was occasional intracranial white matter hyper-intensity shown, such findings being non specific.
98 An MRI scan of the cervical spine and thoracic spine and right brachial plexus was organised by Dr Crump in September 2012.
99 It was reported that there was no evidence of any significant degenerative change centred on the cervical or thoracic spine. No disc herniation with no spinal canal or neural foraminal stenosis was evident. There were normal appearances of the spinal cord with no discrete cord lesion or cord atrophy.
Medico-legal
100 Mr Damian Ireland, consultant orthopaedic surgeon, saw the plaintiff in April 2013.
101 Mr Ireland noted that on examination, the plaintiff presented as a depressed person who demonstrated apparent involuntary and choreiform movements.
102 Mr Ireland diagnosed right shoulder rotator cuff tendonitis and acromioclavicular joint osteoarthritis, noting the predominant problem was a Chronic Pain Syndrome. He thought it difficult to assess the physical component of the plaintiff’s clinical presentation.
103 Mr Ireland suspected the plaintiff did have a significant degree of right shoulder pathology which would preclude her from her pre-injury work. He thought she would be unable to engage in any activity that required lifting weights in excess of 5 kilograms or work that required her right upper extremity to be elevated at or above shoulder level. In his opinion, the plaintiff’s current symptom complex precluded her from any form of gainful employment.
104 Mr Ireland noted the plaintiff obviously had considerable pain affecting the right upper extremity. The severity of that would be best assessed by a pain management clinic.
105 Mr Ireland thought the plaintiff’s prognosis was poor. He noted she already suffered from osteoarthritis affecting the right shoulder and acromioclavicular joint, a developmental condition that was likely to slowly deteriorate.
106 Dr James Rowe, specialist occupational physician, examined the plaintiff in May 2013.
107 On examination, there was limited right shoulder movement but no wasting. There was a change in sensation about the fourth and fifth fingers in the right hand and the plaintiff had a very weak grip.
108 Dr Rowe thought the plaintiff had rotator cuff tendonitis in the right shoulder. She also had developed a so-called “frozen shoulder” or capsulitis and had not responded to treatment. Further, she had aggravated degeneration of the cervical spine resulting in loss of movement in the neck and weakness of grip in the right hand with a change in sensation of the fifth finger. He did not think she was at an increased risk of developing osteoarthritis.
109 Other than a hydrodilatation, Dr Rowe could not think of any other treatment which would make a difference.
110 Excluding psychological conditions, and based on the plaintiff’s neck and shoulder condition, Dr Rowe thought she was not fit to return to work. She could not really do work she had done in the past, working in a packing shed or in a fruit processing plant or as a cleaner. She could not carry, lift, push or pull. She could not work with her arms overhead and was really not employable. He noted she was then aged fifty eight.
111 Dr Rowe thought that, on a permanent basis, the plaintiff did not have the capacity to perform pre-injury duties, either full or part time. She was not fit for suitable employment and could only just cope at home. He could not think of any jobs that she could be paid to perform either full or part time. Dr Rowe also noted the plaintiff’s limitation in social activities and managing her grandchildren.
112 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in May 2013.
113 On examination, Mr Brearley noted that whilst sitting, the plaintiff had involuntary movements of the right shoulder and arm.
114 There was no deformity of the right shoulder. There was very marked tenderness over all the shoulder region and there was some limitation of movement. There was diminution in sensation over the ulnar side of the forearm, hand and little and ring fingers. Strength was 32 kilograms on the left and 12 kilograms on the right.
115 Mr Brearley noted the investigations.
116 Mr Brearley thought definitive diagnosis was not possible. He noted the plaintiff had some acromial bursitis, probably related to impingement, and she did have rotator cuff disease with no significant tear. She also had severe osteoarthritic change in the acromioclavicular joint. However, he noted there were many abnormal features in her presentation.
117 Mr Brearley reported on this examination that the plaintiff had marked limitation of shoulder joint movement which, apparently, was not the case with other examiners. He noted an unusual feature was the gross involuntary movement of the right shoulder girdle and forward flexion to the point of almost falling from a chair at frequent intervals of about three minutes. The plaintiff attributed this to the medication Gabapentin. She had not been taking it for two years.
118 Mr Brearley noted the plaintiff was said to have a Chronic Pain Syndrome (“CPS”) which is not so much a diagnosis but a description.
119 Mr Brearley doubted the plaintiff’s condition had stabilised. He thought she needed further exercise and pain management.
120 Mr Brearley considered the plaintiff was permanently excluded from a wide range of physical activities because of her shoulder. He thought she was not able to undertake her pre-injury duties either full or part time on a permanent basis.
121 Mr Brearley noted that the plaintiff was anxious to do some work. He did not think there would be any work suitable for her given her current symptoms and signs.
122 Mr Brearley noted the plaintiff’s inability to go 10-pin bowling, ride a bike or do any rock and roll dancing and not being able to walk more than thirty minutes.
123 Mr Brearley thought the plaintiff had considerable pain, suffering anxiety as a result of the involuntary movements. He thought the prognosis was not good and it was likely her condition was permanent, although she was not at risk of developing arthritis. He noted she had seen a neurologist and rheumatologist and he believed she needed psychiatric evaluation.
124 The plaintiff was examined by psychiatrist, Dr Swift, in August 2009.
125 Dr Swift noted the plaintiff was then being prescribed Lyrica (150 milligrams) twice per day; Codalgin Forte and Lexapro (20 milligrams) per day.
126 Dr Swift reported that the plaintiff continued to suffer from unrefreshing sleep affected by pain and numbness in her right arm, shoulder and neck, and she continued to suffer from daytime fatigue constantly. He noted that she had previously been tried on other antidepressants and she had also been tried on a Norspan Patch, but that was unsatisfactory.
127 On psychiatric assessment, Dr Swift thought the plaintiff’s thinking was fairly clear, although she was somewhat vague. She showed no evidence of anxiety disorder. She complained of mild concentration and memory problems, moreso when tired. She was aware her general practitioner thought she had masked depression.
128 On testing, the plaintiff scored in the non-clinical range or normal range for both anxiety and depression. She scored in the normal range on the Carroll Depression Rating Scale.
129 Dr Swift thought the plaintiff did not show any diagnosable condition with anxiety or depression. He thought it was possible she had a conversion disorder but thought this unlikely, as Dr Brooder would have noted inconsistencies on a neurological examination indicative thereof.
130 Given the plaintiff’s age and background, Dr Swift thought it much more likely that a musculoskeletal disorder was at fault. In his view, there was no psychiatric disorder or psychiatric impairment. There was no psychiatric treatment that would be appropriate, noting Lexapro was being prescribed to facilitate the plaintiff’s sleep pattern and improve sleep.
131 Dr Swift thought the plaintiff’s prognosis really depended on the future management and outcome of her pain, presumably her musculoskeletal condition and associated pain syndrome.
Defendants’ lay evidence
132 Debra Cooper, return to work officer with the first defendant, swore an affidavit on 16 August 2012.
133 The plaintiff commenced work with the first defendant on 29 August 1996 as a packer/sorter on a seasonal basis. Later, she worked as a box machine operator/pallet stacker.
134 The employer claim report of 6 July 2007 set out that at the time of her injury, the plaintiff was working an average of 35 hours a week, earning $15.11 an hour – $529 per week gross.
135 The making of cardboard boxes was considered to be one of the lightest and easiest tasks for manual handling. The first defendant disputed that that task could be considered rapid, as the pace was constant and steady and at times could fluctuate to being very slow. Assistance was readily available to the plaintiff.
136 The first defendant further disputed the plaintiff’s duties would have been considered awkward. Minimal force was required. Coles’ crates were introduced into the section in 2006.
137 Following the reported injury, the plaintiff’s rehabilitation and return to work was assisted by Work Option. She initially started full-time light duties on 6 July 2007 as a pear sorter/packer but mainly doing stickers and stamping lids until April 2008. She then commenced on inspecting fruit stickers until July 2008, when she went back to the boxing until November 2008. She was then transferred over to the punnet line as a packer until October 2009. It was noted in her return to work plan that assistance would be provided to lift heavier loads.
138 There was no requirement for the plaintiff to lift or stack boxes. During that time, the plaintiff was trying to return to pre-injury duties.
139 The plaintiff ultimately tendered her resignation on 9 October 2009. She had a previous claim relating to her lumbar spine in 2001.
140 Sarah Alderson, dispute resolution officer at QBE, deposed as to the plaintiff’s claim history.
141 On 5 July 2007, the plaintiff lodged a Claim for Compensation which was ultimately accepted. Weekly payments and medical expenses were subsequently issued and paid from 9 July 2007. Although as at the date of this affidavit, February 2014, medical and like expenses continued to be paid, weekly payments were terminated on 25 September 2009.
142 Mrs Alderson reviewed the plaintiff’s claim history records and observed that in April 2012, she attended Shepparton to discuss her options regarding retraining and rehabilitation. There was a file note suggesting the plaintiff was encouraged to complete an occupational rehabilitation form and have it returned to the office.
143 While the form was returned, there was no other verbal or written correspondence from the plaintiff asking for retraining to be provided.
Defendants’ medical evidence
144 The Wyndham House Medical Clinical Progress Notes detailed the plaintiff’s treatment from 25 July 2001 until 15 September 2011.
145 On 25 July 2001, Dr Sneyd at Wyndham House Medical Clinic noted a recent increase in workload sorting apples. The plaintiff turned around and felt sudden pain in the lower lumbar loin region, also the right shoulder, pain down the inner scapular and up to the neck, having to lift arm a lot to discard fruit to a belt above shoulder height. An acute muscle strain left lumbar spine and repetitive use muscle strain right shoulder girdle was diagnosed. A WorkCover Certificate was given for a month.
146 The next reference to shoulder pain in the clinical notes was on 15 June 2007.
147 There were entries noting back pain during 2004 and the prescription of Tramal. In February 2005, it was noted that the plaintiff had coped with increased hours well and could go back to full-time work.
148 Mr Lyons, orthopaedic surgeon, reported to Dr Reardon in September 2010, thanking her for referring the plaintiff.
149 Mr Lyons advised that although the MRI scan of the right shoulder pointed towards some subtle degenerative changes within the rotator cuff and some osteoarthritic wear in the acromioclavicular joint, there were no clinical features to suggest those changes were relevant to the plaintiff’s symptoms.
150 The plaintiff had no clinical features pointing towards AC joint pathology, rotator cuff pathology, or indeed any other well recognised shoulder syndrome, nor was there any neurological deficit.
151 Mr Lyons noted jerking response and provocation of severe pain with light palpation around the shoulder.
152 Mr Lyons advised that essentially he could not see any clear clinical evidence pointing towards any significant underlying pathology. He suspected they might be dealing with a Chronic Pain Syndrome of uncertain origin. He thought the most one could do at that stage was to reassure the plaintiff there did not appear to be any sinister basis to her symptoms and the most that could be done at that stage was taking an ongoing supportive and symptomatic approach.
Medico-legal
153 Mr Stephen Leitl, orthopaedic surgeon, examined the plaintiff for QBE in August 2009.
154 Examination of the plaintiff’s neck and right shoulder area showed widespread areas of tenderness that extended into the right arm and forearm and even into the left shoulder and arm. Mr Leitl noted that was more suggestive of a fibromyalgia type condition than a Scalenus Anterior Syndrome.
155 There was a full range of neck and right shoulder movement and normal power, sensation and reflexes in the plaintiff’s upper limbs.
156 Mr Leitl diagnosed an initial soft tissue injury to the cervico brachial area, resulting in development of a fibromyalgia condition.
157 Mr Leitl noted, apart from changes to suggest subdeltoid bursitis on an August 2007 ultrasound, other investigations had shown no abnormality. The full range of movements suggested that there was no intrinsic abnormality in those areas.
158 Mr Leitl noted the widespread tenderness in the neck, cervical spine, right shoulder and right upper limbs suggested the plaintiff had developed a fibromyalgia condition, the mainstay for treatment for which was an active exercise program.
159 Mr Leitl thought the plaintiff’s fibromyalgia condition affecting her right shoulder girdle and upper limb had arisen and followed a soft tissue injury to the right shoulder girdle.
160 In his view, there did not appear to be any non-work related factors but psychological issues were usually relevant when such a fibromyalgic condition developed. There were suggestions of psychological overlay that he thought were more properly in the domain of a psychiatrist.
161 Mr Leitl considered the plaintiff’s condition remained work related and she had a current work capacity but was not fit for pre-injury employment. He noted she was then increasing her employment hours on a graduated basis.
162 Mr Leitl suggested the plaintiff try chiropractic treatment for two to three visits. He believed that there should be more emphasis on an exercise program through the physiotherapist.
163 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of QBE in September 2010.
164 On physical examination, the plaintiff had mild restrictions of cervical lateral flexion and rotation with a better range of movement in conversation. Mr Shannon doubted she had significant pathology in the cervical spine.
165 The plaintiff had minor restriction of right shoulder movement. The ulnar nerve was slightly irritable at the elbow but there was no wasting of the intrinsic muscles or any weakness of the adduction of the fingers.
166 Mr Shannon thought a clear diagnosis of the plaintiff’s condition was difficult. He noted she had rather non-specific symptoms involving her right shoulder girdle, right side of her neck and her right upper limb.
167 Although she had some features to suggest a mild ulnar neuritis, there was no objective evidence of the plaintiff having this condition and nerve conduction studies had apparently not shown any abnormality.
168 Mr Shannon noted the plaintiff had some evidence of rotator cuff degeneration on ultrasound and MRI, and she had some mild restriction of right shoulder movement without definite evidence of impingement.
169 Mr Shannon noted the general consensus seemed to be the plaintiff had some form of pain syndrome, noting the involuntary movement which she ascribed to Lyrica.
170 Essentially, therefore, Mr Shannon, apart from a diagnosis of degenerative change in the acromioclavicular joint and possibly rotator cuff degeneration, was unable to make a specific diagnosis of any other pathology in the right upper limb. He thought the plaintiff’s impairment had stabilised.
171 Dr Kevin Fraser, rheumatologist, initially examined the plaintiff in March 2009, re-examined her in mid 2012 and most recently saw her on 4 February 2013.
172 In his June 2012 report, Dr Fraser suggested the plaintiff had a mild right rotator cuff syndrome due to degenerative changes involving the rotator cuff and acromioclavicular joint; however, he did not feel that that explained the more widespread symptoms involving her neck and right shoulder. He felt they were due to a Regional Pain Syndrome/fibromyalgia due to non-organic factors of a psychological nature. He felt that was also responsible for the jerking and tingling and numbness in the right hand.
173 From a physical view, Dr Fraser felt the plaintiff had recovered from any work related aggravation of the pre-existing rotator cuff degeneration and osteoarthritis involving the acromioclavicular joint and that, to the extent that they were organically based, her symptoms were due to the underlying age related degenerative changes.
174 As of mid 2012, Dr Fraser felt the psychological reaction to the original injury was the main cause of any incapacity, although as a result of age related degenerative changes, he suggested the plaintiff was unfit for work requiring any heavy lifting or overhead rapidly repetitive or forceful use of the right arm. Within those restrictions, he considered she was fit for any form of work for which she was suited.
175 On re-examination in 2013, the plaintiff told Dr Fraser there had been no significant changes since last seen, except the jerky movements had become worse.
176 The plaintiff told Dr Fraser she had looked unsuccessfully for work, such as cleaning jobs and also in the fruit packing industry.
177 On examination, cervical spine movement was not restricted but there were complaints of pain. Right shoulder movements were restricted and there was tenderness at the shoulder girdle muscles, more on the right than left. There was less grip strength on the right.
178 There were no neurological abnormalities of the upper limbs and again, there were some jerking movements. Dr Fraser thought there seemed to be an overreaction on physical examination.
179 Dr Fraser considered there did not appear to have been a significant change since the last examination and his conclusion was unchanged.
180 In Dr Fraser’s view, the plaintiff’s current symptoms and signs were largely due to non-organic factors of a psychosocial nature, although age related degenerative changes were probably contributing to the right shoulder girdle pain.
181 As a result of the latter, Dr Fraser thought the plaintiff was probably unfit for work requiring heavy lifting greater than 5 kilograms or any overhead rapidly repetitive or forceful use of the right arm.
182 Within the bounds of such restrictions, Dr Fraser thought the plaintiff was suitable and fit for work as a call or contact centre worker, enquiry clerk, survey interviewer, switchboard operator, ticket sales person, sewing machinist or telemarketer.
183 Further, Dr Fraser thought the plaintiff had the physical capacity to undertake jobs of customer service assistant and specifications clerk in Nagambie, mobile safety camera operator in Shepparton, requisition title service consultant in Yarrawonga, marketing and sales support in Nathalia and administrator with customer services in Shepparton. Furthermore, he considered the plaintiff was physically capable of undertaking any required training rehabilitation to enable her to perform such work.
184 Professor Hart, orthopaedic surgeon, first examined the plaintiff in mid 2012 and re-examined her in April 2013.
185 On re-examination, there was slight local tenderness to the right of the mid line in the lower cervical spine but no spasm. There was a full range of movement. The plaintiff performed involuntary bizarre movements during the examination.
186 Examination of the plaintiff’s right shoulder revealed variable movement on repeated testing but she did appear to have some mild impingement clinically.
187 There were no objective neurological signs in the right upper extremity and no evidence of any muscle wasting. The plaintiff’s claimed diminished sensation did not fit any recognised anatomical distribution.
188 Examination revealed full mobility in the plaintiff’s neck and she did not have sufficient trigger areas (and these were all located on the right side) to make a diagnosis of fibromyalgia.
189 Professor Hart thought the plaintiff was suffering from a Chronic Pain Syndrome. He thought the plaintiff may have mild impingement of the right shoulder.
190 In his earlier report, Professor Hart noted Dr Lim considered the plaintiff was suffering from hyper irritable muscles in the shoulder girdle associated with central sensitisation. Professor Hart thought that would appear to be the most appropriate diagnosis.
191 Professor Hart noted the plaintiff was being treated with anti-depressants and there appeared to be a significant functional element involved. He considered her psychological reaction was certainly contributing to her incapacity.
192 If the plaintiff were to return to work, from a physical point of view, Professor Hart thought she should avoid overhead activity, lifting with the right upper extremity in excess of three kilograms, and repetitive pushing and pulling with the right upper extremity.
193 Professor Hart was subsequently asked to comment on the suitability of a number of jobs. In general, he noted the job descriptions that were provided were not really suited to the plaintiff in view of her previous work experience. These jobs included call or contact centre worker, enquiry clerk, survey interviewer, switchboard operator, ticket sales person, sewing machinist, telemarketer, sales representative, mystery shopper, mobile safety camera operator, requisition title service consultant, marketing and sales support and administrator with customer support.
194 Professor Hart noted that in an earlier report, he indicated the plaintiff had been looking for work. The two areas where she had looked were as a cleaner and assembly worker which would be much more suited to her background. He noted she had also worked previously at the cannery and had applied there, but had not received a response to any of her approaches. He also noted the plaintiff had applied for retraining but no response had been received.
195 It seemed to Professor Hart that most of the jobs that had been specified involved either computer or communication skills and the plaintiff had no experience in those areas. He thought her age, education and work background would make retraining difficult. From a physical point of view, he considered she would be able to cope with light cleaning and assembly work and that would be appropriate.
196 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff in August 2013 and provided a supplementary report in February 2014, commenting on further medical reports and records, and also suggested suitable employment.
197 The plaintiff told Mr Jones that she had been looking for suitable employment since ceasing work in October 2009 and had applied for a number of commercial cleaning jobs in Shepparton but had been unsuccessful to date.
198 The plaintiff advised she had also requested retraining from an insurance company after ceasing work. She had submitted forms but to date had had no response and had given up trying.
199 Mr Jones noted during the consultation the plaintiff demonstrated involuntary upper limb and trunk movement.
200 On examination, there was limited cervical flexion with right-sided shoulder, girdle and arm pain, otherwise a full range of neck movement. Neurological examination of the upper limbs was normal apart from a subjective diminution of appreciation of pinprick affecting the skin over the whole of the right arm but particularly the right fourth and fifth fingers. There was no evidence of any tremor in the upper limb.
201 There were no signs of any ulnar nerve neuritis at the elbow, and thoracic outlet syndrome tests were negative.
202 There was a restricted range of right shoulder movement.
203 Mr Jones noted the plaintiff presented with a mild to moderate restriction of right shoulder movement in all directions, and her clinical presentation was one of a frozen shoulder syndrome which had partially resolved. Investigations had failed to show any evidence of rotator cuff tendon pathology but that did not exclude the condition of frozen shoulder syndrome. He noted there were additional changes in the shoulder girdle itself of moderately severe arthritis affecting the acromioclavicular joint.
204 Mr Jones considered the basis of neurological symptoms in the right arm and fingers was uncertain and did not appear to be related to the plaintiff’s shoulder complaints. He thought the neurological symptoms and the jerking movements were more likely neurologically based than related to any orthopaedic condition.
205 Mr Jones could not explain the distribution of the plaintiff’s paraesthesia or pain symptoms. He noted that she did exhibit a slight to moderate restriction of right shoulder movement consistent with the previous history of frozen shoulder syndrome which had not completely resolved. He was otherwise unable to explain her reported neurological type symptoms.
206 Mr Jones thought the plaintiff’s work, in particular pushing a row of empty cardboard boxes, had the capacity to cause or aggravate her right shoulder condition. In his view, the distribution of the plaintiff’s paraesthesia affecting her right arm suggested a functional component to her symptoms.
207 Mr Jones thought the plaintiff had a capacity to work based purely on physical symptoms. That would involve light packaging or processing work where extremes of shoulder movement were not required. The restriction of her shoulder movements would preclude the plaintiff from undertaking work at or above shoulder height or work that involved pushing or pulling. He thought a weight limit of three kilograms would be ideal when using the right hand.
208 Mr Jones believed the plaintiff could explore opportunities for the type of work suggested by ANZ SCO of call or contact centre worker, enquiry clerk, survey interviewer, switchboard operator, ticket sales person and telemarketer.
209 Mr Jones thought the plaintiff had the capacity to undertake work as a sales customer service worker, although he did not know how much right shoulder use would be required. She would not be capable of such work if there were extremes of shoulder movement, particularly above shoulder height or any heavy pushing or pulling using the right arm.
210 Similarly, Mr Jones thought the plaintiff may have the capacity to work as a sales representative if the work was light and placed no high demands on her right shoulder. He thought she would have the capacity to work as an office receptionist.
211 Mr Jones was uncertain as to the degree of training the plaintiff may have had in the past or the amount of training that would be required to undertake any of those jobs.
Investigations
212 Dr Brooder organised an x-ray of the plaintiff cervical spine in May 2009. It was reported the alignment appeared normal down to the cervicothoracic junction with normal disc and vertebral height. There was no evidence of fracture, dislocation or paravertebral soft tissue swelling. The bony canal appeared satisfactory on the lateral view and there were no bony cervical ribs.
213 Dr Brooder organised a CT scan of the plaintiff’s cervical spine in May 2009. It was reported there was a slight bulge of the C3-4 disc only and no evidence of canal stenosis.
214 Dr Guymer organised an MRI scan of the plaintiff’s cervical spine in June 2009. It was reported there was no evidence of compressive disc or osteophyte overlying the lower cervical spine and there was no evidence of central canal stenosis or foraminal stenosis.
Overview
215 I accept that the plaintiff suffered a compensable injury to her right shoulder as a result of the work duties, in particular in mid 2007.
216 I am mindful of the fact that the defendants accepted liability for the payment of weekly payments (ceased September 2009) and medical expenses (ongoing) in relation to an injury on 22 July 2007.
217 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[12] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[12][2006] VSCA 171
218 This is not a case where there is an aggravation of a pre existing injury. The plaintiff made a single complaint of shoulder pain in July 2001, following which she had two days off work. There was no further complaint until the subject injury in 2007.
219 The primary submission by counsel for the defendants was that the plaintiff could not identify an impairment with a substantial organic basis as the date of hearing. Alternatively, it was submitted that the plaintiff was not able to establish physically based consequences which were serious.
220 In Meadows v Lichmore Pty Ltd,[13] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[13][2013] VSCA 201 at paragraphs [21]-[22]
221 As counsel for the plaintiff confirmed in submissions, the focus of the application was on the shoulder. The other arm and hand complaints might be part of the symptom complex but, primarily, it was the impairment to the shoulder that was relied upon. Counsel did not suggest the involuntary movement previously experienced by the plaintiff formed any part of this impairment.[14]
[14]T82
222 There are differing views as to the cause of this movement, with Mr Jones of the view it was neurologically based and other practitioners who considered it was non organic in nature.
223 Counsel for the defendants submitted there was no pathology responsible for the plaintiff’s shoulder symptoms.
224 Whilst it cannot be said there is a substantial organic basis to the plaintiff’s presentation, it is possible to separate the physical contribution to the plaintiff’s pain and suffering from the psychological contribution.
225 Although a number of medical examiners had difficulty making a specific diagnosis of the plaintiff’s shoulder condition, there were findings at times on examination consistent with an organic shoulder problem and diagnoses provided in these terms.
226 Treating neurologist, Dr Brooder, when he saw the plaintiff in 2009, thought she had initially developed pain of a musculoligamentous origin which was then associated with secondary muscle spasm that had induced a right scalenus anterior syndrome.
227 Although he found it difficult to assess the physical component of the plaintiff’s shoulder problem, Mr Ireland suspected there was significant shoulder pathology. He diagnosed tendonitis, with the predominant problem being a CPS.
228 Whilst diagnosing a CPS, on recent re-examination, Professor Hart found impingement of the right shoulder with a positive Hawkins test. He gave some support to Dr Lim’s view that the plaintiff was suffering from hyperirritable muscles and shoulder girdle associated with central sensitisation. Professor Hart’s findings were not diagnostic of fibromyalgia.
229 Mr Leitl, in 2009, is the only practitioner who diagnosed fibromyalgia, with suggestions of functional overlay. It is interesting to note however, that Mr Leitl thought if treatment was ceased, it was likely the plaintiff’s work capacity and activities of daily living would deteriorate.
230 Although Mr Brearley could not provide a definitive diagnosis and he found abnormal features in the plaintiff’s presentation, he diagnosed subacromial bursitis probably related to impingement and rotator cuff disease with no significant tear.
231 Mr Jones thought the plaintiff presented clinically with mild to moderate restriction of right shoulder movements, diagnosing a partially resolved frozen shoulder. Dr Rowe diagnosed rotator cuff tendonitis with no actual tears. He shared Mr Jones’ view as to the development of a frozen shoulder.
232 Apart from a diagnosis of degenerative change in the acromioclavicular joint and possibly rotator cuff degeneration, Mr Shannon was unable to make a specific diagnosis.
233 Whilst a number of other examiners diagnosed a CPS, they differed in their views as to its basis. Mr Lyons, treating orthopaedic surgeon, could not see any clear clinical problem and diagnosed a CPS of uncertain origin.
234 In the absence of a clear physical explanation, Dr Crump suggested the plaintiff’s condition was in keeping with a quite severe CPS. He did not however, consider that syndrome was psychologically based.
235 Dr Fraser took a slightly different approach, concluding the plaintiff’s symptoms were largely due to non organic factors, although age related degenerative changes were probably contributing to her condition; any work related aggravation having ceased. However, Dr Fraser gave no explanation as to how he concluded when and why the work aggravation ceased.[15]
[15]T85
236 Whilst there is a physical contrition to the plaintiff’s shoulder condition, I accept, however, that the consensus of medical opinion was that the widespread numbness complained of by the plaintiff in her arm is non organic.
237 The only psychiatric opinion available in this case was from Dr Swift, who examined the plaintiff in 2009. Having carried out testing and analysed the plaintiff’s position carefully, he concluded that she was not suffering from any psychiatric disorder or impairment. He thought, given her age and background, it was much more likely that a musculoskeletal disorder was at fault. In his view, there was no psychiatric treatment that would be appropriate, noting Lexapro was being prescribed to facilitate the plaintiff’s sleep pattern and improve sleep.
238 Having “disentangled”, whilst there may not be a significant organic basis to the plaintiff’s shoulder condition, I am satisfied there is a physical contribution, having excluded psychiatric factors.
Credit
239 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[16]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[16](2010) 31 VR 1 at paragraph [12]
240 The plaintiff gave evidence in a credible manner. I accept that she is a genuine woman who has worked hard most of her life.[17]
[17]T86
241 No attack was made on the plaintiff’s credit by counsel for the defendants. There was no cross-examination about the nature and severity of her symptoms.[18]
[18]T75
242 There was no surveillance film or other evidence inconsistent with the plaintiff’s stated level of disability. No medical practitioner suggested that, on examination, the plaintiff deliberately embellished or exaggerated her complaints.
243 The evidentiary basis of the experience of pain will ordinarily comprise, inter alia, what the plaintiff says about her pain to the Court and to doctors.[19]
[19]Per Maxwell P in Haden Engineering v McKinnon (supra) at paragraph [11]
244 I accept the plaintiff continues to suffer constant right shoulder pain of varying intensity, the level of which increases with activity.
245 The plaintiff continues under the care Dr Guymer. The plaintiff takes prescription Codalgin Forte, six tablets a day, and she also takes Pristiq.
246 In Kelso v Tatiara Meat Company Pty Ltd,[20] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[20][2007] VSCA 267 at paragraph [199]
247 The plaintiff is significantly limited in the movement of her right arm, particularly above shoulder height. She prefers to use her left hand when carrying and lifting and she has problems with heavy or repetitive use of her right arm.
248 The plaintiff, now aged fifty nine, is right hand dominant. She has little education and has been employed in manual work only, largely by the same employer. The most significant consequence of her right shoulder injury is her inability to engage in such work. The consensus of medical opinion is to this effect.
249 Since suffering injury, the plaintiff was only able to return to light duties fifteen hours per week until her employment was terminated in 2009. She has been unable to engage in further work since that time.
250 The interference with the plaintiff’s employment capacity due to her right shoulder pain and physical restrictions is a serious consequence.
Loss of Earning Capacity
251 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
252 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
253 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
254 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
255 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
256 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein - See Barwon Spinners Pty Ltd & Ors v Podolak.[21]
[21](supra) at paragraph [70]
257 I am therefore required to determine a “without injury” earnings figure. The parties agreed the appropriate figure in this case was $32,000. Sixty per cent thereof is $19,200 or $369 per week.
258 Taking into account all the evidence, I am not satisfied that the plaintiff has a capacity for suitable employment where she would earn in excess of $369 per week.
259 Treating general practitioner, Dr Guymer considered the plaintiff was prevented from using her right arm to push, pull or lift. If there was improvement, she may be able to work up to nine hours per week in a job using only her left hand but he thought it was hard to think of a possible job.
260 In April 2013, Mr Ireland thought the plaintiff could not lift in excess of five kilograms and could not work above shoulder height with her right arm. He considered her current symptom complex precluded her from any form of gainful employment.
261 Noting the plaintiff was anxious to do some work, in May 2013, Mr Brearley did not think there would be any work suitable for her given her current symptoms and signs.
262 In May 2013, Dr Rowe thought that, on a permanent basis, the plaintiff did not have the capacity to perform pre-injury duties either full or part time, noting she could only just cope at home.
263 Professor Hart’ support for a return to work was qualified. He felt the plaintiff would have difficulty making a return to a repetitive job and any return should be on a graduated basis with duties avoiding overhead activity and repetitive pushing and pulling with a lifting restriction of three kilograms.
264 Professor Hart noted most suggested jobs required computer or communications skills which the plaintiff did not possess. In his view, light cleaning work and assembly work were appropriate.
265 Mr Jones imposed similar restrictions and thought the plaintiff was fit for light packaging or processing work where extremes of shoulder movements were not required. He thought she could explore the suggested jobs of enquiry clerk, call centre worker, survey interviewer, switchboard operator, ticket salesperson and telemarketer. He was uncertain of the training required for those positions.
266 Dr Fraser considered the plaintiff was unfit for any work with any heavy lifting (5 kilograms) or any overhead rapidly repetitive or forceful use of the right arm. Within those restrictions, he thought she was fit for the suggested jobs and physically capable of any retraining required.
267 The plaintiff has shown a willingness to return to work, having complied with rehabilitation requests and made application for a number of part time cleaning jobs.
268 At best, I believe the plaintiff could do very light cleaning or light manual work for a couple of hours a day, a few days a week. Accordingly, I am satisfied that she has suffered the requisite loss of forty per cent, being unable to earn in excess of $369 per week.
269 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
270 I agree with Professor Hart’s view that given her age, education and work background, retraining would be difficult for the plaintiff.
271 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
272 As the plaintiff’s condition has persisted for nearly seven years, I am satisfied her right shoulder impairment is permanent.
273 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[22] and Advanced Wire & Cable Pty Ltd v Abdulle.[23]
[22][2009] VSC 454 at paragraph [147]
[23][2009] VSCA 170
274 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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