Taseska v Kah Australia Pty Ltd and VWA
[2011] VCC 128
•9 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00097
| VESKA TASESKA | Plaintiff |
| v | |
| KAH AUSTRALIA PTY LTD | First-named Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second-named Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 and 9 November 2010 |
| DATE OF JUDGMENT: | 9 February 2011 |
| CASE MAY BE CITED AS: | Taseska v Kah Australia Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 128 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – back injury, right shoulder injury, and left shoulder injury – whether injuries are compensable and, if so, continue to be compensable – whether any of the injuries are “serious” – whether pecuniary loss is “serious” for any or all of the injuries.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with | Ellis Palmos & Co |
| Mr G Pierorazio | ||
| For the Defendants | Mr N B Chamings | Thomsons Lawyers |
| HIS HONOUR: |
1 By way of Originating Motion dated 13 January 2009, Mrs Veska Taseska (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act, as amended (“the Act”), to bring common law proceedings to recover damages for injury to her neck, right shoulder and left shoulder (collectively referred to as “the injuries”) suffered throughout the course of her employment with Kah Australia Pty Ltd (“the first defendant”) over the period from October 2000 until October 2005 but, in particular, over the period from September 2002 to April 2005.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The application was heard over two days and the plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1] See Annexure A
Relevant Legal Principles
4 The Court must not give its leave unless it is satisfied on the balance of probabilities that one or more of “the injuries” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[2]
[2] See s.134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act which reads:
“permanent serious impairment or loss of a body function”.
6 The parts of the body said to be impaired for the purposes of paragraph (a) are the neck, right shoulder and left shoulder.[3]
[3] See T 2, L23-25
7 In order to succeed, the plaintiff must prove on the balance of probabilities
that:
(a)
each of “the injuries” suffered by her arose out of or in the course of or due to the nature of her employment with the first defendant on or after 20 October 1999;[4]
(b)
each of “the injuries” with its resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)
the “consequences” to the plaintiff of her neck impairment, and/or her right shoulder impairment and/or her left shoulder impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with the other cases in the range of
[4] See s.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[5] See Barwon Spinners (op.cit) at paragraph [33]
possible impairments … be fairly described as more than significant or
marked, and as being at least very considerable” (my emphasis);[6]
The test for “serious” is sometimes referred to as the “narrative test”.
[6] See s.134AB(38)(b) and (c) of the Act
8 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[7] to establish:
[7] See s.134AB(19)(b) and (38)(e) of the Act
(a) That as at the date of hearing she has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act[8], and (b) That after the date of the hearing she will continue permanently to have a loss of earning capacity that will be productive of a financial loss of 40 per cent or more.[9] It is to be noted that the plaintiff cannot aggregate her injuries to establish the requisite loss of earning capacity consequences or satisfy the narrative test.[10]
[8] See s.134AB(38)(e)(i) of the Act
[9] See s.134AB(38)(e)(ii) of the Act
[10] See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
9 In determining the application, the Court:
(a) Must not take into account psychological or psychiatric consequences of “the injuries” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”.[11] (b) Must make the assessment of “serious injury” at the time the application is heard.[12] (c) Must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[13] (d) Notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. [11] See s.134AB(38)(h) of the Act
[12] See s.134AB(38)(j) of the Act
[13] See s.134AB of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraphs [89]- [92]
In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings from the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.[14]
(e)
Notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression or value judgment.[15]
[14] See Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170, delivered on 28 July 2009, and in particular, paragraphs [60]-[64]
[15] See Kelso v Tatiara Meat Company Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issues
10 Counsel for the defendants informed the Court that, in essence, the issues were:
(a)
whether the alleged injuries to the neck, right and left shoulders arose out of or in the course of her employment with the first defendant and, if so, the extent and permanency of any injury;
(b)
whether each of the injuries satisfied the requisite level of “seriousness” as required by the Act;
(c) avoidance of aggregation of the alleged injuries; and (d)
exclusion of psychiatric and psychological consequences from any consideration of injuries under paragraph (a) of the definition of “serious injury”.
The Background of the Plaintiff, her Injuries and Medical Treatment
11 The plaintiff gave evidence that she is a single woman who lives by herself in Epping and has been receiving a Disability Pension of $701 per fortnight since 23 March 2008.
12 The plaintiff adopted her affidavits sworn on 5 June 2008,[16] 29 July 2009,[17] 4 February 2010[18] and 7 October 2010.[19]
[16] Pages 10-16 of Exhibit 1
[17] Pages 17-20 of Exhibit 1
[18] Pages 21-24 of Exhibit 1
[19] Pages 24A-24B of Exhibit 1
13 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
•
She is a fifty-six-year-old (born 24 May 1955) divorced woman who was born in Macedonia where she attended school for about seven or eight years.
•
After leaving school, she lived at home and helped her parents on the family farm.
•
She migrated to Australia in 1990 and thereafter worked in labouring jobs, factory work or as a cleaner.
•
Although she can read and write Macedonian, she cannot read and write in English and does not speak English very well. She has never worked in retail duties.
•
In 1995, she was employed as a labourer at Samhild Casings when she injured her back when lifting a bag of salt. She ceased work and made a claim for compensation, which was admitted, and thereafter she received weekly payments of compensation. She instituted common law proceedings against Samhild Casings and received an amount of $200,000 by way of damages. There was some improvement in her back condition which enabled her to return to other forms of employment.
•
She commenced employment with the first defendant in 2000 as a chamber maid/room cleaner. She describes her duties in the following terms:[20]
[20] See paragraph 8 at page 11 of Exhibit 1
“I was required to clean hotel rooms. My duties required to clean between 15 and 20 hotel rooms per shift. My duties involved me pushing a trolley which held clean linen and supplies and cleaning materials from room to room. I was also required to move a vacuum cleaner from room to room. In each room I was required to change the linen on the bed and remake the bed, change the pillow cases on six pillows, change the towels in the room, replace shampoo and soap, clean the shower, clean the wash basin, clean the toilet, wash the bathroom floor, clean out the refrigerator, supply coffee and milk to the room, replace dirty glasses with clean glasses (there 6 glasses in each room) and vacuum the room. I was also required to place the dirty linen and towels in a bin on my trolley. I was required also to complete paperwork to advise that the room had been cleaned. I was given a list of rooms to clean and I cleaned the rooms as they became available. I worked on more than one floor of the hotel. When I first commenced employment with the employer I was give 8 hours to clean 18 rooms. The situation occurred for the first 2 years that I was employed and thereafter I was employed as a casual and was required to perform my cleaning duties and clean 3 rooms per hour.”
•
In 2001, she suffered a hernia when employed by the first defendant, requiring her to cease work. She lodged a claim for weekly payments of compensation and like expenses pursuant to the provisions of the Act which was accepted by her then employer. She had an operation to repair the hernia and resumed work with the first defendant in 2002, performing the same duties.
•
She ceased work in April 2005 because of problems with her neck, her left shoulder, her right shoulder, her left hip, right hip and varicose veins.
• She describes her problems in the following terms:[21] [21] See paragraph 13 of page 13 of Exhibit 1
“The problems with my neck, my shoulders, my hips and the varicose veins came about gradually and continued to such an extent that I became incapacitated for employment and was forced to cease work in April 2005. The problem with my neck is that I am restricted in movement of my neck. In relation to my left shoulder, I have restriction of movement and pain that goes down my left arm and tingles into my left palm. The problem goes all the way down my left arm to my fingers. I have this problem all the time. I have a similar problem with my right shoulder in that I am restricted in movement, but I find that the tingling sensation in my right arm and right hand occurs less often. I have pain in my left hip and right hip and am restricted in my movements. I have also had problems with my varicose veins and have required operative treatment to my right leg.”
•
Dr Chris Gorgioski has been her general practitioner since March 1995 and she consulted him in relation to her work injuries in April 2005. Dr Gorgioski referred her to the orthopaedic specialist, Mr Mark Richardson, the psychiatrist, Dr Bosanac, and the occupational physician, Dr Helen Sutcliffe.
•
She consulted with Mr Richardson on two occasions and he injected her left shoulder which made no difference.
•
She commenced seeing Dr Bosanac in April 2007 because of feelings of “depression and anxiety that I am suffering as a result of chronic pain”.[22]
• She confers with Dr Gorgioski in Macedonian. •
She commenced seeing Dr Helen Sutcliffe at the beginning of 2007 and that doctor referred her to a pain management clinic.
•
Dr Gorgioski prescribes Panadeine Forte for her pain and Dr Bosanac prescribes Lexotan and Lovac for her psychological/psychiatric condition.
•
She continues to suffer pain in her neck, which is there all the time of varying intensity.
•
She does not believe that she could return to any employment as a result of her “injuries”.
[22] See paragraph 17 at page 14 of Exhibit 1
14 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
● She continues to see her general practitioner, Dr Gorgioski, on a
fortnightly basis and he prescribes Mobic and Panadeine Forte for her pain, which she takes on a daily basis (Mobic once a day and Panadeine Forte two tablets every six hours).
●
She continues to be treated by Dr Bosanac who prescribes Lovan and Lexotan (two Lovan tablets in the morning and one or two Lexotan tablets each day).
● She also is prescribed Nexium by Dr Gorgioski in order to treat a reflux
problem as a result of the large amount of medication she is taking.● She continues to see Dr Helen Sutcliffe on a regular basis for pain
management.
● She had an operation on her varicose veins in 2008 which has brought
about an improvement of the pain in her legs.● She continues to live on her own and is able to do some housework
chores but has difficulty in doing those chores. She is able to go shopping on her own and regularly drives to Epping Plaza, which is about five minutes from where she lives, and does do some shopping.
● She is less social than she was before she stopped work. ● She continues to suffer from pain in her neck and left and right shoulders
which causes difficulty in sleeping and becoming comfortable.● She has not been offered any rehabilitation or retraining by her employer. 15 By way of her third affidavit, the plaintiff gave the following pertinent evidence:
● She continues to see her general practitioner, Dr Chris Gorgioski, and Dr
Helen Sutcliffe on a monthly basis.
● Dr Gorgioski continues to prescribe Mobic (once a day), Panadeine Forte
and Nexium.●
She ceased attending Dr Bosanac about five or six months ago [that is, about August 2009] on the basis that the medication prescribed by him was working and he no longer needed to see her.
● In the last five or six months there has been a deterioration in her
condition in that she has now developed pain going down both arms into her hands and moving up the tips of her fingers and thumbs. The problem is “equal in both hands” and causes her to have difficulty using her hands and difficulty making a fist.
●
Dr Sutcliffe arranged for her to undergo an MRI scan of her neck on 2 February 2010 and later advised that she may need to undergo surgery in the future.
●
She continues to have difficulties carrying out day-to-day activity because of pain in her neck and both shoulders and the now developing pain in her hands and arms.
● She continues to have difficulty in sleeping, becoming comfortable and
continues to suffer from her psychological/psychiatric condition.
● She does not believe she can return to any form of manual employment. 16 By reason of her fourth and last affidavit, the plaintiff gave the following pertinent evidence:
● She continues to consult with Dr Gorgioski and Dr Sutcliffe on a monthly
basis.● She was referred to the orthopaedic surgeon, Mr de la Harpe, on 16 March 2010 in relation to whether any neck surgery was required and she was advised by Mr de la Harpe that he did not consider that surgery would be of benefit.
● She takes four to six Panadeine Forte tablets per day, Lovan on daily
basis and Lexotan and Nexium on an “as needs” basis.
The Cross-Examination of the Plaintiff
17 Under cross-examination, the plaintiff gave the following salient evidence:
•
She confirmed that in or about March 1995, she injured her back when working for Samhild Casings for which she received weekly payments and medical and like expenses, and a common law settlement of $200,000 on the basis that she retain about $28,000 paid to her pursuant to s.98 of the
Act.
•
She agreed that her back had improved to enable her to return to work with the first defendant. She also accepted that in November 2001, when employed by the first defendant, she submitted a Claim for Compensation in respect of a hernia condition and received weekly payments of compensation and did not return to work until her payments were terminated.
•
She was divorced in about 2003 or 2004 and, prior to that, she and her husband had been living in the same house but “didn’t speak to each other”.[23]
•
Beyond injuries to her neck, left shoulder and right shoulder, she also has had pain in both hips.
•
Because she lives by herself, she has to try to do her household duties but has difficulties.
• She does not intend to have any surgery. [23] T 14, L3
18 Counsel for the defendants showed the plaintiff about 40 minutes of video taken on 13 August 2007, 14 August 2007, 9 November 2007, 6 May 2009, 2 July 2009, 3 July 2009, 17 January 2008, 19 January 2008, 15 November 2008, 28 September 2009, 5 October 2009 and 18 May 2010.
19 In general, the video revealed the plaintiff to drive a car on occasion, go shopping, converse with people at shops, carry a bag full of shopping and a handbag, use her right arm to remove clothing from clothes racks in shops, walk normally, and move her neck.
20 The plaintiff accepted that it was her depicted in the various video sequences, but stressed that largely she had to perform these activities as she lived alone and she experienced pain when performing some of the activities. Furthermore, she asserted that if she has to do any particular activity, she will take Panadeine Forte in the morning to assist her during the day.
21 I refer to the following questions and answers which give some indication as to the attitude of the plaintiff to her displayed activities:
Q: “When you were sitting in the car on 2 July and your head and neck were the subject of the video surveillance, you were able to turn your head around, weren’t you?--- A: If someone is watching me, yes, it’s just like I’m moving it freely,
but only I know how much pain I’m suffering.[24]Q: On 19 January 2008 you, at 11.19, carried two bags full of shopping and you held your two bags and your handbag in one hand?--- A: I was taped, yes, while I’m shopping. It depends what you’re carrying in those bags. Sometimes it could be heavy items; sometimes light items. Q: You had two plastic supermarket bags and your handbag in one
hand and with the other hand you opened the car door?---A: Yes, I opened it. I’m not hiding the fact. I have to do this, I have
to.Q: You reached in and dropped the shopping on the left hand seat?--- A: That’s correct. Q: You were able to do this with a bad neck?--- A: With a bad neck, yes. Even with a bad neck I have to force
myself, even with that bad neck for the rest of my life … .”[25]
[24] T 30, L1-5
[25] T 31, L12-25
22 The plaintiff was cross-examined in relation to whether she could work and the following evidence was given:
Q: “If you had to go to work, you could do that too, couldn’t you?--- A:
Work, it’s different. You have to be there for five hours, ten hours, eight hours. When you’re at home or going out like this, you can go out for five minutes and then go home again.
Q: Do you think you could work on a restricted basis for, say, three or
four hours a day?---A: Who would hire me now to work for four hours with these
problems?---Q: The question was, do you think you could work three or four hours
a day?---A: No, I can’t work that much. I may go out, but when I come home I
need to rest or take tablets or whatever.”[26][26] T 32, L29-T 33, L9
23 The plaintiff accepted that she pleaded guilty to charges of theft at the Heidelberg Magistrates’ Court on 15 June 2005 and to a charge of theft at the Preston Magistrates’ Court on 28 February 2008. The plaintiff gave evidence that at the time of such offences, she was depressed.
24 In relation to attempts to resume work, the plaintiff gave the following evidence:
HIS HONOUR:
Q: “Tell me, since stopping work, have you ever attempted to get a
job?---A: I stopped work in 2005 and I haven’t tried to find work again. Q: Has it ever occurred to you to perhaps try to see how you went
with a job?---A: I haven’t thought about it because I suffer from a lot of pain in the head and the shoulder and the neck and the arms. I have difficulty sleeping, so I don’t even think about that.”[27] [27] T 37, L31-T 38, L7
25 Since ceasing work, the plaintiff has travelled to Macedonia in or about 2006 for about three or four months.
The Evidence of Dr Chris Gorgioski
26 The plaintiff relies on reports from Dr Gorgioski (her treating general practitioner) dated 5 September 2005,[28] 24 June 2006,[29] 20 January 2008,[30] 23 August 2009[31] and 5 October 2010.[32]
[28] See page 25 of Exhibit 1
[29] See page 27 of Exhibit 1
[30] See page 29 of Exhibit 1
[31] See page 31 of Exhibit 1
[32] See page 32A of Exhibit 1
27 Dr Gorgioski has been the treating general practitioner of the plaintiff since 14 March 1995 and he notes that she has a past history of lower back injury in March 1995 and a right inguinal hernia in April 2002.
28 She presented to Dr Gorgioski on 10 December 2004, complaining of the slow onset of neck pain and pain in both shoulders with the pain worse when she is working and aggravated by movements. At that time, she also complained of right knee pain and noticed varicose veins in her right leg. Examination revealed restricted movements of her neck, both shoulders, and her spine was tender.
29 She again attended in January 2005 when she said her condition had deteriorated and she was anxious and depressed. At that time, she was prescribed analgesics and anti-depressants. She continued working to 5 April 2005 when she ceased because of her ongoing pain.
30 Radiological studies of her thoracic spine and cervical spine revealed degenerative changes and an ultrasound of her left shoulder in August 2000 revealed a full thickness tear of the supraspinatus. Further, a plain x-ray of her hips showed dysplastic appearances on both sides.
31 In the report dated 24 June 2006, Dr Gorgioski states, in part:[33]
[33] See page 28 of Exhibit 1
“1
Soft tissue injury to her neck and aggravated degenerative changes. This condition is stable. Her employment was a significant contributing factor. She will need conservative treatment.
2
Bilateral rotator cuff tendinopathy and tear of supraspinatus tendons. This condition is not stable, it is directly work related. She will need to see an orthopaedic surgeon regarding her treatment and possible surgical treatment. In the meantime she needs conservative treatment with physiotherapy and hydrotherapy.
3
Aggravated degenerative changes of her thoracic spine at work. This condition is not stable. I would recommend an MRI to see if disc pathology is causing her pain. She will need conservative treatment.
4
Dysplastic changes to both hips. Aggravated by her work. She needs to be assessed by a specialist.
5
Anxiety and depression reaction. Partly caused by her work and pressure at work and after. If not improving she will need to see a psychiatrist.
6
Right leg varicose veins. Stable condition. This was caused by her continuous standing, walking, cleaning and vacuuming.
In my opinion, she is not fit for her pre injury work or any other work. Her condition needs long time treatment and rehabilitation. She is not good candidate for re-training.”
32 Further various radiological studies of the plaintiff’s thoracic and cervical spine have been undertaken over the years. In his report dated 23 August 2009, Dr Gorgioski confirms his opinion that her conditions are work-related, stable and permanent.[34]
[34] See page 32 of Exhibit 1
33 In his last report dated 5 October 2010,[35] Dr Gorgioski confirmed that the plaintiff continues to have restricted movements of her cervical spine and painful movements and restrictions of both shoulders. He reports that she has difficulty sleeping because of pain and cannot do heavy physical work because of her condition. He states, in part:[36]
“In my opinion, she is suffering from aggravated degenerative disc condition of her cervical spine, soft tissue injury of both shoulders. Taking into account her history, clinical findings and investigations, my opinion is that her condition is stable, permanent and work related. She is not fit for her pre injury work or any other work for which she is qualified or experienced.”
[35] See page 32 of Exhibit 1
[36] See page 32A of Exhibit 1
The Treatment of Mr Martin D Richardson
34 The plaintiff relies on three reports from the orthopaedic surgeon, Mr Martin D Richardson, dated 28 May 2007,[37] 6 May 2009[38] and 21 September 2009.[39]
[37] See page 33 of Exhibit 1
[38] See page 35 of Exhibit 1
[39] See page 37 of Exhibit 1
35 Mr Richardson initially consulted with the plaintiff on 24 July 2006 when she presented with “multiple orthopaedic issues, particularly her shoulders, the right worse than the left”.[40] Examination revealed a restriction of movement with impingement and a painful arc and he injected the subacromial space with local anaesthetic and Depo-Medrol.
[40] See page 33 of Exhibit 1
36 When reviewed on 6 February 2007, Mr Richardson noted that the earlier injection did not seem to assist her shoulders although her neck seemed to be the major area at that review with stiffness and pain. He arranged for her to undergo an MRI scan of the neck.
37 When reviewed on 26 February 2007, he notes that the MRI scan of the cervical spine demonstrated multi-level degenerative disease and, at that stage, he recommended some chiropractic treatment at the Epping Chiropractic Centre.
38 When last seen on 3 August 2009, Mr Richardson comments:[41]
[41] See page 37 of Exhibit 1
“She had been seen on a number of occasions at the Royal Melbourne Hospital for evaluation of her cervical spine disease and was referred back to my rooms for re-evaluation of her shoulder problems. A previous ultrasound done in 2006 suggested possible small rotator cuff tears. Clinically however her shoulders were noted to be normal and there were no obvious symptoms attributable to the shoulders themselves. The symptoms again appeared to be coming mainly from her cervical spine and previous investigations had demonstrated moderately severe degenerative changes, particularly on the left side at the C3-4 and C4-5 level with some facet joint arthropathy. It was felt that a further opinion would be required from Mr David de la Harpe to help evaluate the pins and needles radiating down to the left hand and we await his opinion regarding plans for ongoing management.
A recent CT of the cervical spine done in July 2009 confirmed the degenerative changes described above. No disc herniation was noted.
In answer to your specific questions:
1 I am not aware of a specific injury sustained to the right shoulder precipitating her symptoms, but not uncommonly shoulder and neck problems are chronic in nature and may be the result of recurrent minor trauma.
2 On my most recent reviews, Mrs Taseska’s symptoms related mainly to the degenerative disease in her spine. Clinical examination of her shoulders revealed no significant local disease.
3 No specific injury was reported to me at our clinical appointments with regards either shoulder, particularly the left shoulder.
4 I believe most of the symptoms related to her left upper limb are coming from the degenerative changes in her cervical spine.
5 She has not reported a specific injury to me with regards her cervical spine, but again reiterate that degenerative change is more of a chronic process.”
[my emphasis]
The Medical Evidence of Mr David de la Harpe
39 The plaintiff relies on medical reports from the orthopaedic surgeon, Mr David de la Harpe, dated 3 October 2009[42] and 18 March 2010.[43]
[42] See page 101 of Exhibit 1
[43] See page 102A of Exhibit 1
40 Mr de la Harpe initially reviewed the plaintiff on 24 September 2009, at which time the plaintiff described performing a lot of “heavy work including bed making and cleaning bathrooms”.[44] Over time, she developed the onset of neck pain and what Mr de la Harpe refers to as bilateral “non-dermatomal arm pain” causing her to cease work in 2005.
[44] See page 101 of Exhibit 1
41 Mr de la Harpe considered that her work as a house-keeper for five years has “aggravated a pre-existing degenerative condition in her neck”[45] and considered her unfit to return to manual labour, and that she may be required to re-train in a job requiring skills and more sedentary duties.
[45] See page 102 of Exhibit 1
42 In his last report, Mr de la Harpe confirmed that he believed that surgery would be of no benefit to the plaintiff.
The Treatment from the Occupational Physician, Dr H Sutcliffe
43 The plaintiff relies on the following reports from Dr Sutcliffe dated 23 August 2007,[46] 24 July 2009,[47] 20 November 2009[48] and 8 October 2010.[49]
[46] See page 47 of Exhibit 1
[47] See page 54 of Exhibit 1
[48] See page 62 of Exhibit 1
[49] See page 70A of Exhibit 1
44 Dr Sutcliffe commenced to consult with the plaintiff on 24 February 2007 and continues to see her at this time. She obtained a history that the plaintiff described constant pain in the neck and upper limbs with pain also in the lower limbs and hip regions with such pain waking her at night every night and was present when she woke in the morning. All activity increased the pain and she had difficulty walking, vacuuming, gardening and shopping.
45 Dr Sutcliffe diagnosed a full thickness tear of the left supraspinatus and right shoulder tendinosis with partial tear of the supraspinatus and subacromial bursitis as a result of the duties she performed with the first defendant.[50] Furthermore, she considered the plaintiff to have sustained cervical spondylosis as a result of the heavy manual handling she performed with lifting furniture and other lifting. She considered the plaintiff to be unfit for all manual work, either on a full-time or part-time basis. In particular, she states:[51]
“I believe that Mrs Taseska has sustained work-related injuries resulting in very substantial limitation of function for the occupations for which she has experience or training.
She has sustained very substantial injuries which render her currently and permanently unfit for work taking into account her age, background, English literacy and communication, her education and work experience.
There has also been substantial adverse impact on her capacity for day to day domestic, social and leisure activities as a result of the work related injuries.”
[50] See page 52 of Exhibit 1
[51] See page 53 of Exhibit 1
46 In her second report, Dr Sutcliffe notes that the plaintiff has sustained the onset of depression and anxiety as a result of pain and disability but notes that her neck, shoulder and hip injuries are entirely physical in nature and the pain and suffering endured is entirely physical in nature.
47 In her report dated 20 November 2009, Dr Sutcliffe states, in part:[52]
“Thus I believe that Ms Taseska has sustained an injury to the right shoulder which is identified as tendonitis of the right supraspinatus tendon and subacromial bursitis both related to the nature of her employment as a room attendant from 2000-2005.
As a result of the right shoulder when considered alone and excluding any psychological injury there is partial incapacity for employment. Ms Taseska has no capacity to perform her pre injury duties as a result of the right shoulder injury. Her lack of English literacy and communication limit her capacity for sedentary duties without manual handling and there is no likelihood of capacity for employment in alternative or modified duties. Thus as a result of the right shoulder injury Ms Taseska has incapacity for employment.
I confirm my opinion that Ms Taseska has sustained a work related injury to the left shoulder with a full thickness tear of the supraspinatus as a result of the duties she performed in her occupation as a room attendant from 2000-2005. As a result of the left shoulder injury when considered alone and excluding any psychological component there is total unfitness for employment in my opinion as there is persisting pain on movement and limitation of the range of movement, so prohibiting manual handling occupations.
The left shoulder symptoms are essentially related to the left shoulder injury. The restriction of the range of movement and the incapacity for lifting, moving of objects or elevation of the shoulder is as a result of the left shoulder injury.
The pain sustained in the left shoulder area also has contribution from left foraminal narrowing in the upper cervical spine but this is escalated by movement of the cervical spine not by movement of the left shoulder.
Ms Taseska has sustained an injury to the cervical spine with aggravation of disc derangement and aggravation of degenerative changes in the facet and uncovertebral joints as a result of the manual handling, lifting and heavy manual work performed in her occupation as a room attendant from 2000-2005.
The injury to the cervical spine when considered alone and excluding any psychological injury results in total and permanent unfitness for employment in my opinion.”
[52] See page 69 of Exhibit 1
48 In her last report dated 8 October 2010, Dr Sutcliffe notes that the plaintiff gave a history of increased pain in her left forearm and an increase in her stress levels. In that report, she confirmed her earlier opinions as to the nature and extent of the plaintiff’s injuries and her capacity for work.
The Psychiatric Evidence of Dr Vladimir Bosanac
49 The plaintiff relies on a report from Dr Bosanac dated 10 August 2007.[53]
[53] See page 42 of Exhibit 1
50 Dr Bosanac initially consulted with the plaintiff on 18 April 2007 on referral from her treating general practitioner. At that time, she reported many months’ history of increased irritability and nervousness associated with thoughts of hopelessness and helplessness. Further, she reported feelings of fatigue and lack of energy and noted social withdrawal and changes for the worse in her concentration and memory. Her affect was anxious and her mood was depressed.
51 Dr Bosanac diagnosed a Chronic Pain Syndrome and Major Depressive Disorder of moderate severity. He was of the opinion that her pain syndrome started as a direct consequence of the work-related injuries on the background of large stresses such as medical illnesses and divorce. Dr Bosanac could find no evidence of any pre-existing psychiatric illness.
52 At the time of his report, he was of the view that the plaintiff required continuation of active treatment for her psychiatric condition, together with pain management and rehabilitation. At that stage, he was unable to say when her pain would abate. He suggested that she be referred to an occupational and/or rehabilitation physician and, no doubt, this prompted Dr Gorgioski to refer the plaintiff to Dr Sutcliffe.
Medico-Legal Reports
53 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) the rheumatologist, Dr Alex Stockman, on 20 July 2007;[54] (b) the orthopaedic surgeon, Mr Stephen Doig, on or about 28 May 2009;[55] (c) the vascular general surgeon, Mr Kenneth Myers, on 20 October 2009;[56] and (d) the psychiatrist, Dr D Weissman, on 19 June 2009.[57] [54] See report of same date at page 46 of Exhibit A
[55] See report dated 28 May 2009 at page 88 of Exhibit 1
[56] See report dated 26 October 2009 at page 103 of Exhibit 1 and report dated 5 November 2010 at page 110A of Exhibit 1
[57] See report of date at page 79 of Exhibit 1
54 At the time of his examination, Dr Stockman obtained a history that the plaintiff had ongoing pain in both shoulders and pain at the back of her neck. He also obtained a history that over the years that she has had pains in the lateral and posterior aspect of both hips and has had longstanding back symptoms.
55 Dr Stockman diagnosed cervical spondylosis which was likely to be giving her pain in the neck and both trapezius muscles. He considered that although she had evidence a rotator cuff tendonopathy on ultrasound and MRI scan, there was no clinical evidence of such conditions at the examination. In particular, Dr Stockman stated:[58]
“It is probable that her cervical spondylosis has been accelerated by the heavy nature of the work and is therefore still likely to be related to her work.
In my view, the rotator cuff tendonitis has now resolved.
It should be noted that Mrs Taseska has persisting low lumbar disc degeneration and this is also giving her some pain. However, from the history it seems that the neck, shoulders and hips worry her the most.
I am of the view that Mrs Taseska has some capacity for work but would not be fit to resume her job as a housekeeper. I feel that she could perform light cleaning or process work but should avoid constant movement of the neck, lifting arms above the shoulder level, lifting objects of more than 5 kilograms or lifting away from her body. …”
[my emphasis]
[58] See page 49 of Exhibit A
56 At the time of his examination, Mr Doig obtained a history that the plaintiff had ongoing pain in both shoulders with the right nearly as bad as the left. Furthermore, her cervical spine was still sore and deteriorating.
57 Mr Doig was of the opinion that the neck pain complained of by the plaintiff consisted of an aggravation of pre-existing asymptomatic degenerative changes in the cervical spine which had been contributed to by her work. However, he considered that the aggravation to her degenerative disease had “long since worn off”[59] and that her neck injury would not prevent her from continuing to work.
[59] See page 89 of Exhibit 1
58 However, he diagnosed a full thickness tear of the rotator cuff in her left shoulder which he believed was significantly contributed to by the general nature of her employment with the first defendant. Such injury would limit her lifting weights, reaching out or above head height or repetitive movements of the left shoulder or arm. Such condition would significantly restrict her employment ability and, accordingly, she would only have a capacity for sedentary work and, taking into account her English proficiency, she would have difficulty obtaining any type of work.
59 In relation to the right shoulder, Mr Doig was of the opinion that the plaintiff had suffered a partial thickness tear of the supraspinatus tendon and her work had significantly contributed to such condition. Similarly, he considered that the right shoulder injury would prevent her from lifting heavy weights, reaching out or above head height or doing prolonged repetitive movements of the right arm. He considered that she had a capacity for sedentary work as far as the right shoulder was concerned, but again, because of her limited education, literacy and lack of English, he considered that obtaining work would be difficult.
60 He also diagnosed untreated trochanteric bursitis in both hips which would not prevent her going back to work again if both were treated appropriately and properly.
61 Mr Myers considered that the plaintiff suffered a right shoulder injury demonstrated by ultrasound which revealed degenerative changes within the rotator cuff structures as a result of her employment with the first defendant from 2000 to April 2005. Such condition caused incapacity for employment. In particular, Mr Myers was of the opinion that the problems in the right shoulder were largely from the injury to the right shoulder amplified by aggravation of degenerative intervertebral disc disease in the cervical spine.
62 Mr Myers was of the same opinion in relation to the left shoulder as that expressed in relation to the right shoulder.
63 Mr Myers considered that the plaintiff had suffered an aggravation of pre- existing degenerative intervertebral disc disease in her cervical spine and that employment over the period from 2000 to April 2005 with the first defendant was a cause of such aggravation. Such condition causes incapacity for employment.
64 Dr Weissman was of the opinion that the plaintiff suffered a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate severity or intensity. In particular, he states:[60]
“Her psychiatric prognosis is only fair.
Since her work-related injury she has experienced a moderate decline and deterioration in her quality of life, level function and level of enjoyment. She experiences a moderate amount of (psychological and emotional) pain and suffering. On purely psychiatric grounds alone, there has been a partial loss of earnings capacity. …”
[60] See page 87 of Exhibit 1
65 The solicitors for the defendants arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) the orthopaedic surgeon, Mr Khan, on 24 May 2005;[61] (b) the rheumatologist, Dr Tony Kostos, on 15 February 2006[62] and on 3 January 2008;[63] (c) the vascular general surgeon, Mr T J Russell, on or about 20 April 2006;[64] and (d) the orthopaedic surgeon, Mr Clive Jones, on 12 November 2008,[65] 20 May 2009[66] and on 25 March 2010.[67] [61] See report dated 24 May 2005 at page 71 of Exhibit 1
[62] See report dated 23 February 2006 at page 17 of Exhibit A
[63] See report dated 7 January 2008 at page 22 of Exhibit A
[64] See report dated 20 April 2006 at page 27 of Exhibit A
[65] See report dated 20 November 2008 at page 31 of Exhibit A
[66] See report dated 10 June 2009 at page 35 of Exhibit A
[67] See report dated 5 November 2010 at page 38d of Exhibit A
66 Mr Khan was of the opinion that the plaintiff had suffered a flare-up of pre- existing degenerative changes which are fairly extensive, affecting her cervical, thoracic and lumbar spine, as well as both shoulder areas as a result of manual work which involves her bending, twisting and turning her neck and back, lifting objects and crouching as a room attendant and housekeeper. He was further of the opinion that she was incapacitated for that type of work or, indeed, any type of work at that time.
67 Dr Kostos ultimately diagnosed the plaintiff to be suffering a Chronic Pain Syndrome related to psychological and social factors and the “significant medicalization of her condition”.[68] He found a number of discrepancies and inconsistencies on physical examination, together with a widespread pain response and abnormalities on neurological examination which could not be explained on the basis of a physical lesion. In particular, he states:
“I note that this woman has had a number of investigations performed and it appears as though the changes noted on these investigations have been assumed to be ‘injuries’. However all the investigations show is that she has age related, constitutionally determined disc degeneration and osteoarthritis and there isn’t any evidence at all to suggest that these abnormalities have been caused by her work.
Furthermore, there isn’t any evidence at all that these changes are a cause of pain, because similar findings are equally as common in patients without neck or back pain.
The same situation applies to her shoulders where she does not have any convincing evidence of a physical abnormality and the results of her ultrasound are irrelevant. This is because ultrasound abnormalities in people of this age are extremely common, even in asymptomatic individuals.”
[68] See page 20 of Exhibit A
68 Dr Kostos was of the view that her employment with the first defendant was not a significant or materially contributing factor to any of her claimed injuries.
69 In his later report, Dr Kostos confirmed the diagnosis of Chronic Pain Syndrome with osteoarthritic changes in both hips related to dysplastic changes which have been longstanding. He is critical of Mr Richardson, Mr de la Harpe and Dr Sutcliffe in their “approach” in that they all make the “same mistake” and attribute the plaintiff’s problems to the appearance of her cervical MRI scan and go on to suggest that her work has aggravated these changes, when there is no such evidence at all to support the case.[69]
[69] See page 25 of Exhibit A
70 Dr Kostos considered the presentation of the plaintiff to be largely related to non-physical factors and considers her quite capable of returning to her former duties if physical grounds alone are considered.
71 At the time of his examination, Mr Russell had x-rays that showed degenerative changes in the cervical spine, a partial thickness tear on the right shoulder supraspinatus tendon and other degenerative changes. He comments that the plaintiff presented with widespread symptoms. In particular, he states:[70]
“Her work is moderately physically demanding. There is no sign of any specific injury in this lady in her hips. She has degenerative change in her back and neck which is a constitutional problem. It is not related to employment in a significant and material way. Her shoulders show excellent function when comparing the casual movements to the formal movement and there is inconsistency on examination. I can detect no residual problems in her shoulders as such. I can find no evidence of any injury to her shoulders related to employment in a significant and material way at this stage. … In this situation this lady appears to have degenerative change in her neck and back and varicose veins which are constitutional in nature. She has good function in her shoulders on examination taking all the examination into account. She has moderately good neck movements and good back movements. Her condition appears to be related to constitutional factors plus some overlay of an unhappy employee in terms of the disparity between her workload and other workloads. …
She could perform appropriate work full time. She is not fit for unrestricted pre-injury employment but is fit for modified pre-injury employment with the above restriction. The condition appears to be permanent but with some programme of exercises and a positive attitude she has a good change (sic) of being able to increase her function and be able to return to more activities in the above restrictions. …”
[70] See page 29 of Exhibit A
72 When first seen by Mr Jones, the plaintiff described bilateral shoulder pain as her main problem with variation as to which shoulder was worse. She also complained of a painful cervical spine and back pain.
73 At that time, Mr Jones stated:
“Her complaints of severe pain and disability do not sit well with the very minor clinical findings and radiological changes, which are consistent with normal aging and which do not reflect injury … She last worked in early 2005 and any input from the nature of her employment on her symptoms, must have ceased long ago.”[71]
[71] See page 32 of Exhibit A
74 When seen on 20 May 2009, Mr Jones noted that the plaintiff had undergone a cortisone injection to her shoulder. Spinal examination showed very little, if any, restriction of function and there was no neurological abnormality in the arms or legs. Mr Jones considered there was significant exaggeration of symptoms. In particular, Mr Jones states, in part:
“Her employment may have temporarily aggravated her spinal and shoulder problem. This is not a permanent aggravation, and I would say any input from work, which ceased four years ago, has now disappeared.
This lady may have difficulty working as a room attendant, considering her multiple symptoms, but probably could manage light, seated employment or supervise a school crossing.
I believe she does have a capacity for suitable employment.
Mrs Taseska has been granted a disability support allowance, and there appears to be a small, if any chance, of her returning to gainful employment.”[72]
[72] See pages 37-38 of Exhibit A
75 In a report dated 17 February 2010,[73] Mr Jones, after examining the suitable employment options, was of the opinion that the plaintiff was capable of performing work as a hand packer and/or light assembly work. In particular, he states:
[73] See page 38A of Exhibit A
“Having reviewed the employment capacity analysis report, I found this well thought out and extremely detailed. The suitable employment options, each accompanied by a work site assessment included:
ƒ Process worker ƒ Hand Packer ƒ Product assembler ƒ Machine operator Tasks of hand packing at a hosiery manufacturer in Thornbury were described and illustrated. Part and full-time hours are available. Sock grading, trimming, labelling, and packaging with box assembly were described. This could be construed as light employment, especially if undertaken part-time.
The second assessment is of assembly work in a manufacturing company. The indexes are recycled. These items weigh less than one hundred grams. Work can be performed standing or sitting. It would be my view that both employment tasks would be within this lady’s work capacity.
On the occasions I have seen this lady in the past, I did not believe there was a total incapacity for all employment and that a capacity for suitable employment does exists.
I do not believe the worker has a current work capacity primarily due to lack of motivation.”[74]
[74] See pages 38A-C of Exhibit A
76 When last seen in April 2010, the plaintiff complained of increased pain levels in her left arm, forearm, shoulder area and hand. Mr Jones was of the same view in relation to capacity as his previous report and noted that the “radiology would be the same regardless of the claimed work aggravation”.[75]
[75] See page 38F of Exhibit A
Suitable Employment Documents
77 I refer to the report of Recovré dated 18 January 2010 which involves an employment capacity analysis.[76] In that report, the authors, Robyn Willett, an employment placement consultant, and Janette Ash, an injury management consultant, were of the opinion, based on the material supplied to them, that the plaintiff had a capacity for suitable employment as a process worker, hand packer, machine operator and product assembler.
[76] See page 154a of Exhibit A
78 The authors of the report have identified a hosiery factory, a sock manufacturer and a company which manufactures gas meters all in close proximity to the plaintiff. The companies have amongst them such jobs as sock grading, labelling at a finishing table, machine labelling, product packaging, and assembling boxes.
Analysis of the Evidence
79 The first issue is to decide whether the plaintiff suffered a neck injury and/or right shoulder injury and/or left shoulder injury arising out of or in the course of her employment with the first defendant on or after 20 October 1999. If so, then whether such injuries have resulted in permanent impairment with consequences that satisfy the requisite test for “serious injury”.
80 Before deciding such issues, I make reference to certain aspects of the evidence:
(a) The plaintiff gave her evidence with flat affect and was very much injury focused. Although the video material revealed her to be able to drive a vehicle, use both arms (albeit there being no film of the arms above the head), move her neck well and engage in everyday activities, none of the video material was vastly inconsistent with her assertions that she does drive a vehicle and attend to shopping. However the video did highlight her capacity to engage in everyday activities largely without much difficulty. Because of her injury focus, I treated her complaints with a degree of caution although, at no time, did I feel that she was deliberately and consciously setting out to mislead the Court. (b) Unfortunately, in this matter, there is a wide range of medical opinions as to whether her alleged injuries were ever work related and if so whether they continue to be and how they affect her capacity for employment. None of the doctors were called for cross-examination and it is necessary for the Court to form views on the basis of the reports, always bearing in mind that the plaintiff must discharge her onus in respect to these matters. 81 Section 5(1) of the Act defines “injury” to mean:
“Any physical or mental injury and, without limiting the generality of
definition, includes –
(a) industrial deafness;
(b) a disease contracted by a worker in the course of the worker’semployment (whether at, or away from, the place of employment);
(c) a recurrent, aggravation, acceleration exacerbation or deterioration of any pre-existing injury or disease.”
82 Section 259 of the Act provides that this definition of “injury” only applies to injuries that occur on or after the date of commencement of s.3 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 – to wit, on 3 December 2003.
83 The definition of “injury” applicable prior to 3 December 2003 was in similar form, save that paragraph (b) of the definition had the added words, “and to which the employment was a significant contributing factor”, and paragraph (c) of the definition had the added words, “where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration”.
84 The Accident Compensation and Transport Accident Act (Amendment) Act 2003 also inserted sub-s.(2C) in s.82 of the Act. Such sub-section relevantly reads:
“Compensation is not payable in respect to the following injuries unless the worker’s employment was a significant contributing factor to the injury –
(a) … (b) …
(c) a recurrence, aggravation, acceleration exacerbation or
deterioration of any pre-existing injury or disease.”
85 Section 5(1B) of the Act also states:
“In determining for the purpose of this Act whether a worker’s
employment was a significant contributing factor to an injury –
(a) the duration of the worker’s current employment; and (b) the nature of the work performed; and (c) the particular tasks of the employment; (d)
the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risk; and (f) the lifestyle of the worker; and (g) the activities of the worker outside the workplace – must be taken into account.”
86 After consideration of all the evidence, I am satisfied as a matter of probability that the employment of the plaintiff with the first defendant was a significant contributing factor to the aggravation of pre-existing degenerative changes in her left shoulder, right shoulder and neck. Although appreciating that there was no specific acute injury to any of these areas of the body, I have formed such view for the following reasons:
(a) The nature of the work undertaken by the plaintiff with the first defendant would have been reasonably strenuous, involving the use of both arms and movement of the neck. (b) When first seen by her treating general practitioner, Dr Gorgioski, on 10 December 2004, the plaintiff gave a history of the slow onset of pain in both shoulders and her neck which worsened when she performed such work as pushing beds, lifting, pulling and performing cleaning work in the rooms to be made up. (c) There is radiological evidence of degeneration of both the neck and the shoulders involving tears of the supraspinatus. (d) When seen by Mr Khan on 24 May 2005 (about seven weeks after her ceasing work with the first defendant), he was of the clear view that she had suffered “flared up pre-existing degenerative changes which are fairly extensive affecting her cervical, thoracic and lumbar spines as well as both shoulders as a result of the manual work”. 87 The critical issue is whether such compensable injuries have been a cause of any permanent impairment of the left shoulder and/or the right shoulder and/or the neck.
88 In this respect, I refer to the first examination of Dr Kostos on 15 February 2006. Although I do not accept his opinion that there has been no work contribution to her injuries, I do note he was of the opinion that her presentation of that day was largely influenced by non-physical factors.
89 Similarly, when seen by Mr Russell on or about 20 April 2006, he was of the view that her shoulders showed “excellent function when comparing the casual movements to the formal movement” and “moderately good neck movements”.
90 When seen by Dr Stockman on 20 July 2007, examination of the cervical spine revealed a fairly good range of movement and the rotator cuff tendonitis had now resolved.
91 When first seen by Mr Jones on 12 November 2008, he was of the opinion that examination on that date did not reveal “any convincing evidence of physical disability” and that any “possible aggravation would have ceased long ago”. He maintained such a view throughout his examinations.
92 When seen by Mr Doig on or about 28 May 2009, he considered that although the neck had probably been aggravated by her employment, such aggravation of the pre-existing degenerative disease “has long since worn off”. However, Mr Doig did consider that her left and right shoulders involving tears of the supraspinatus tendon gave rise to an impairment which would restrict her to a capacity for sedentary work.
93 When first seen by her treating orthopaedic surgeon, Mr M Richardson, on 24 July 2006, she was treated for pain in both shoulders, particularly on the right. However, when seemingly last seen on 3 August 2009, he notes that her shoulders from a clinical examination were “normal and there were no obvious symptoms attributed to the shoulders themselves”. However, Mr Richardson thought at that time any symptoms were emanating from her neck. It is to be noted that although Mr Richardson comments that not uncommonly “shoulder and neck problems are chronic in nature and may be the result of the recurrent minor trauma”, he goes on to say that on his more recent reviews, her symptoms are related “mainly to the degenerative disease in her spine” and that “clinical examination of her shoulders revealed no significant local disease”.
94 When seen by Mr de la Harpe on 24 September 2009, he did consider that her work as a housekeeper with the first defendant “aggravated a pre-existing degenerative condition in her neck” although there is no evidence neural compression in the cervical spine. He makes no comment in relation to the shoulders.
95 After consideration of all the evidence and taking into account the video, I am not satisfied that the compensable injuries suffered by the plaintiff to her right shoulder, left shoulder and neck are a cause of any permanent impairment as assessed as at today’s date. Although I appreciate there is some support from some treating doctors that such injuries have resulted in impairment, I favour the views expressed by Mr Jones and Mr Richardson, together with Mr de la Harpe, at least in respect of the right and left shoulders. As pointed out earlier in these reasons for judgment, there is a wide range of medical opinions, which are not consistent. I am not persuaded as a matter of probability that a relevant impairment exists.
96 If I be wrong about my findings in relation to impairment of the left shoulder, right shoulder and neck, I also make the following findings.
97 Consistent with the approach enunciated in Advanced Wire and Cable Pty Ltd v Abdulle,[77] I will go on to make findings in relation to any pecuniary loss on the basis that there is some impairment in the left shoulder and/or right shoulder and/or neck. Each impairment must give rise to the requisite consequences.
[77] [2009] VSCA 170
98 Section 134AB(38)(e)(i) requires the plaintiff to establish that as at the date of the hearing of the application, she “has a loss of earning capacity … of 40 percent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity as prescribed by paragraph (f), necessitates a comparison of two matters:
(a) what the plaintiff is earning whether in suitable employment or not or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and (b) the income that the plaintiff was earning or was capable of earning “during that the part of period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”). In both cases, the income is limited to gross income from personal exertion and is to be annualised.
99 Section 134AB(38)(e)(ii) requires the plaintiff to establish that she will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a loss of 40 percent or more”.
100 Senior Counsel for the plaintiff conceded that for him to succeed on “pecuniary loss” the Court would have to accept that there has been a “complete destruction of work capacity”[78] and accordingly, if the Court considers the worker had a capacity for suitable employment, she would lose on pecuniary loss.
[78] See T 51, L25-29
101 I find that if the plaintiff did have impairment of her left shoulder and/or right shoulder and/or neck, each such impairment, although preventing her performing work above shoulder height or indeed lifting heavy weights, would not prevent her from performing work as a hand packer or assembly worker, such as that detailed in the report from Recovré dated 18 January 2010. I note that she has not made any attempt to resume work at any time.
102 Again, assuming that the plaintiff has relevant impairments of her left shoulder and or her right shoulder and/or her neck, I am not satisfied that any consequences of such impairments would satisfy the narrative test.
103 In relation to this issue, I am assisted by several Court of Appeal decisions:
(a) Stijepic v One Force Group Aust Pty Ltd & Anor[79] where the Court of Appeal (Ashley JA and Beach AJA) stated: [79] [2009] VSCA 181
“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[80]
[80] See paragraphs 40 to 42
(b) Ashley JA and Beach AJA also referred to Dwyer v Calco Timbers Pty Ltd (No. 2)[81] wherein, it is stated: [81] [2008] VSCA 260
” … the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
(c)
I also refer to Sabo v George Western Foods[82] where Neave and Mandie JJA made reference to the decision of TAC v Dennis[83] and adopted the words of Callaway JA when he discusses the weight which must be given to the word “very” in the words “at least very considerable”. Callaway JA at page 703 stated:
“… many disturbances are considerable, in the sense that they are
important or substantial, without being very considerable.”[82] [2009] VSCA 242 at paragraph 67
[83] [1998] 1 VR 702
104 As Senior Counsel for the plaintiff conceded, the plaintiff can do “the normal activities in life” but in his submission, she does such activities with pain.[84] Indeed, the plaintiff does not point to anything beyond pain affecting her sleep, for which she takes Panadeine Forte, and Nexium for her stomach problems. She can clearly drive, shop, interact with other people and maintain herself. Taking account of all of the evidence, I am not persuaded that she has the degree of pain complained of.
[84] See T 63, L18-20
105 Bearing in mind that each impairment must be assessed independently, I am not satisfied that the right shoulder impairment (if there be one) and/or the left shoulder impairment (if there be one) and/or the neck impairment (if there be one) satisfies the narrative test to establish a serious injury.
Conclusions
106 The application will be dismissed and I will hear the parties on the question of costs.
- - -
ANNEXURE “A”
The plaintiff tendered the following documents:
Exhibit 1
•
Affidavits of the plaintiff sworn 5 June 2008, 29 July 2009, 4 February 2010 and 7 October 2010.
•
The medical reports of Dr Chris Gorgioski dated 5 September 2005, 24 June 2006, 20 January 2008, 23 August 2009, 5 October 2010.
•
The medical reports of Mr Martin Richardson dated 28 May 2007, 6 May 2009, 21 September 2009.
•
The medical reports of Dr Helen Sutcliffe dated 23 August 2007, 24 July 2009, 20 November 2009, 8 October 2010 and 7 November 2010.
• The medical report of Mr Khan dated 24 May 2005. • The psychiatric report of Dr David Weissman dated 19 June 2009. •
The medical reports of Mr Stephen Doig dated 28 May 2009 and 24 September 2009.
•
The medical reports of Mr David de la Harpe dated 3 October 2009 and 18 March 2010.
•
The reports of Mr Kenneth Myers dated 26 October 2010 and 5 November 2010.
• Radiology reports of a right shoulder x-ray dated 14 May 2005. • X-ray of thoracic spine and left shoulder ultrasound dated 18 August 2005. • An MRI of the right shoulder on 1 August 2006. • An MRI of the cervical spine dated 9 February 2007. • An MRI of the cervical spine dated 7 February 2010. • The report of Dr Vladimir Bosanac dated 10 August 2007. The above documents appear at pages 10 to 121 of the Plaintiff’s Court Book.
• Workers Claim Form dated 19 April 2005. The above document appears at pages 157 to 160 of the Defendants’ Court
Book.
Exhibit 2
•
Further medical reports of Mr Mark Richardson dated 28 July 2006, 1 March 2007 (re consultation on 6 February 2007) and 1 March 2007 (re consultation on 26 February 2007).
The above documents appear at pages 42 to 45 of the Defendants’ Court
Book.
The defendants tendered the following documents:
Exhibit A
• Medical reports of Dr Tony Kostos dated 23 February 2006 and 7 January 2008; • Medical report of Mr T.J. Russell dated 20 April 2006. • Medical reports of Mr Clive Jones dated 20 November 2008, 10 June 2009, 17 February 2010 and 5 November 2010. • Medical report of Dr Alex Stockman dated 20 July 2007. • Employment capacity analysis dated 18 January 2010. • Employee claim form dated 4 May 2005. The above documents appear at pages 17 to 38G, pages 46 to 49, page 154(a) to 154(cc), and at pages 161 to 162 of the Defendants’ Court Book. Copy release at pages 325 to 326 of the Defendants’ Court Book.
Exhibit B (wrongly referred to in the transcript at T 45, L 16 as Exhibit 3)
• Video surveillance of the plaintiff dated 30 August 2007, 14 August 2007, 9 November 2007, 6 May 2009, 2 July 2009, 3 July 2009, 17 January 2008, 19 January 2008, 15 November 2008, 28 September 2009, 5 October 2009 and 18 May 2010.
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