Taylor v Australian Home Care Services Pty Ltd
[2020] VCC 1915
•20 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05998
| SUSAN JENNIFER TAYLOR | Plaintiff |
| v | |
| AUSTRALIAN HOME CARE SERVICES PTY LTD (ABN 19 082 554 630) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 July 2020 | |
DATE OF JUDGMENT: | 20 November 2020 | |
CASE MAY BE CITED AS: | Taylor v Australian Home Care Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1915 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder injury – paragraphs (a) and (c) of the definition of “serious injury” – leave sought to bring proceedings for “pain and suffering” damages and “pecuniary loss” damages
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd and Anor v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Richter v Driscoll [2016] VSCA 142; De Bono v Victorian WorkCover Authority [2019] VCC 1342; [2019] VSCA 85; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
Judgment:Pursuant to s335(2)(d) of the Act, leave granted to the plaintiff to bring common law proceedings for pain and suffering damages and pecuniary loss damages for a right shoulder injury arising out of, or in the course of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Ms C Moore | Shine Lawyers |
| For the Defendant | Mr A W Middleton | Hall & Wilcox |
HIS HONOUR:
1 By way of Originating Motion, Ms Susan Jennifer Taylor (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for a right shoulder injury (“the injury”) which occurred during the course of her employment with Australian Home Care Services Pty Ltd (“the defendant”) and in particular, on 19 February 2015.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering” damages and “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of the injury.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a number of documents.[1] At the end of the proceeding, Counsel for the plaintiff sought an admission from Counsel for the defendant as to whether any surveillance had been undertaken of the plaintiff. Counsel for the defendant stated that no surveillance had been undertaken in this matter.[2]
[1]Refer to Annexure “A”
[2]See Transcript (“T”) 54, Line (“L”) 10-13
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[3]
[3]See s335(5)(a) of the Act
5 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s325(1) of the Act. Those paragraphs read:
“‘serious injury’ means—
(a) permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
… .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the right shoulder. The mental or behavioural disturbance or disorder is said to be a “Chronic Adjustment Disorder with Anxiety and Depression”.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) the “injury”, whether that be the organic injury under paragraph (a) or the psychiatric injury under paragraph (c) of the definition of “serious injury”, arose out of, or in the course of or due to the nature of her employment with the defendant on or after 1 July 2014;[4]
[4]See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
(b) the “injury” and the resulting impairment under paragraph (a) or the mental or behavioural disturbance or disorder under paragraph (c) of the definition of “serious injury”, must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
(c) the “consequences” to the plaintiff of the injury under paragraph (a) of the definition of “serious injury”, in relation to “pain and suffering” or “pecuniary loss” must be “serious”. That is –
“… when judged by comparison with other cases, in the range of possible impairments … as the case may be … [can be] fairly described as being more than significant or marked and as being at least very considerable … .”[6]
[6]See s325(2)(b) and s325(2)(c) of the Act
(d) the “consequences” to the plaintiff of the psychiatric injury under paragraph (c) of the definition of “serious injury” in relation to “pain and suffering” or “pecuniary loss” must be “severe”. That is –
“… when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be, fairly described as being more than serious to the extent of being severe.”[7]
[7]See s325(2)(d) of the Act
8 Section 335(3) of the Act provides that the consequences of an injury – be it an organic or psychiatric injury – and impairment in terms of “pain and suffering” and “loss of earning capacity”, are to be considered separately. In the event that a worker satisfies subparagraph (i) of s325(2)(b) but not subparagraph (ii) of that subsection, he or she is entitled to bring proceedings in accordance with s335(2)(d) of the Act for the recovery of damages for “pain and suffering” only. A worker who satisfies the loss of earning capacity requirements under s325 of the Act is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.[8]
[8]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
9 In addition, in relation to establishing the loss of earning capacity – whether it be in relation to the organic or psychiatric injury – a court must not grant leave under s335(2)(d) of the Act on the basis that the worker has established the loss of earning capacity required by s325(2)(c) or (d) unless the worker establishes, in addition to the requirements of paragraphs (c) or (d) of s325(2) of the Act (as the case may be), that:
(a)as at the date of the hearing of an application under s335(2)(d) of the Act, the worker has a loss of earning capacity of 40 per cent of more measured (subject to certain relevant exceptions) as set out in s325(2)(f) of the Act;[9] and
(b)the worker will, after the date of the hearing, continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[10]
[9]See s325(2)(e)(i) of the Act
[10]See s325(2)(e)(ii) of the Act
10 Section 325(2)(h) of the Act provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
11 Section 325(2)(i) of the Act provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
12 Section 325(2)(j) of the Act provides that the assessment of “serious injury” must be made at the time that the application is heard by the Court, subject to some irrelevant exceptions. The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[11]
[11]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
The issues
13 When queried as to what were the issues in the matter, counsel for the defendant stated:
(a) There was no issue that the plaintiff had suffered a “compensable injury” on or about 19 February 2015;
(b) Noting that the claim was brought under both paragraphs (a) and (c) of the definition of “serious injury”, counsel asserted that no “formal concession” in respect of pain and suffering would be made, considering that it would be submitted by the defendant that there were “disentangling” issues to be resolved. However, the fundamental issue was whether the plaintiff satisfied the pecuniary loss aspects of the Act.
14 The Court queried counsel for the defendant that although he was limiting his concession that there had been a compensable injury on 19 February 2015 (in distinction to Senior Counsel opening the case on the basis that such injury occurred throughout the course of employment and on 15 February 2015), counsel for the defendant accepted that the incident on 19 February 2015 was a cause of the medical and like expenses and in particular, the surgery undertaken in relation to the plaintiff’s right shoulder. Furthermore, when queried as to whether the alleged psychiatric injury appeared to be explained as a reactive condition to whatever the organic condition may be, counsel for the defendant accepted that there is “a hint of that” in the medical reports but nothing conclusive.
The evidence of the Plaintiff
15 The plaintiff relies on two affidavits affirmed by her – the first on 10 July 2019[12] and a further affidavit on 21 July 2020.[13]
[12]See exhibit 1 at pages 30-42 JCB
[13]See exhibit 1 at pages 43-47 JCB
16 The plaintiff gave evidence that she had re-read both affidavits that morning and the contents were true and correct.[14]
[14]T23, L10-14
17 In her first affidavit, the plaintiff gave evidence that she is fifty-two years old (born June 1968), and has been estranged from her husband since 2002. She has two adult children who are aged (at the time of the affirmation of the affidavit) eighteen and twenty-two years old, and she lives with her twenty-two-year-old daughter. The plaintiff is currently in a relationship with a man – Michael Duffy – but they do not live together.
18 The plaintiff was born in Kew but grew up in Lalor, where she completed Year 12 at Lalor Technical School. After completing school, she worked as a sales assistant at a pharmacy and a photographic developer until she had her second child in 2000, after which she had time off to raise her two children.
19 In 2007, she competed a Certificate III in Aged Care and later, completed certificates in food handling, CPR and first aid, and a Certificate III in Home and Community Support.
20 In October 2008, she commenced work with the defendant as a personal care assistant. In that role, she worked as a support worker, caring for disabled clients in their homes. She worked permanent part time, usually about eighteen to twenty hours per week, and earned no less than $458.00 per week plus allowances.
21 Before her injury, she was also employed by DASSI as a personal care assistant, working less hours with DASSI than she did with the defendant. At the time of her injury, she was working approximately twelve hours a week with DASSI, caring for a male with cerebral palsy who was bedridden and frail. The plaintiff notes that this work was less demanding as it did not involve manual lifting but rather, her role at DASSI involved lighter duties such as changing the client’s bedsheets, feeding him and putting away his washing. (His mother would bathe and assist with dressing).
22 In particular, the plaintiff alleges that she suffered injury to her right shoulder and arm (she is right handed) as a result of work duties and activities performed by her in the course of her employment as a personal care assistant with the defendant and in particular, an incident which occurred on 19 February 2015. She notes that as a result of the injuries, she had suffered some permanent impairment and loss of function of her right shoulder and arm and such injuries continue to have a marked effect on her day-to-day activities, her family, her social and recreational activities and her capacity for work.
23 In her employment with the defendant at the time of her injury, the plaintiff cared for a woman named “Jessica”, who had suffered an acquired brain injury from a car accident which affected the movement of her right leg and arm. She required a high level of personal care and assistance with domestic household duties which included bathing, grooming, toileting, dressing and undressing. “Jessica” also needed help getting in and out of bed and a hoist was used to transfer her from her bed to a wheelchair.
24 The plaintiff supervised Jessica when she self-administered medications and also assisted her with preparing meals and took her on trips in her van. The plaintiff would also drive the van to the various doctors’ appointments, the shops, socialising and any trips away.
25 The plaintiff would also assist with her exercise required by a structured physiotherapy exercise regime approved by a physiotherapist. The plaintiff also gave assistance with hydrotherapy, causing the plaintiff to get into the water and assist with manipulating the right limbs in the hydrotherapy pool.
26 Jessica had had three carers each day, including the plaintiff. The plaintiff and the other two carers worked in shifts, providing care 24 hours per day, seven days a week. In particular, the plaintiff’s shifts were either 6.00am to 12.00pm, 12.00pm to 5.00pm, 5.00pm to 9.00pm or 9.00pm to 5.00am.
27 The plaintiff describes the circumstances of her injury to her right shoulder on 19 February 2015 in the following terms:
“On or about 19 February 2015, when working at her home and alone, I was fitting a leg splint on to Jessica’s right leg when I injured my right shoulder. I had to push forcefully against her leg in order to fit the leg splint. When doing this task, I strained my right shoulder. Later that day, my right shoulder was stiff and sore, and got progressively more painful. This task was one of many physical tasks I did each shift to care for Jessica. Often these tasks were awkward and physically demanding to complete. This was because Jessica had a lot of disabilities as a result of her accident.”[15]
[15]See exhibit 1, paragraph 33 of the plaintiff’s first affidavit at page 33 JCB
28 The plaintiff subsequently saw Dr Dorjee, general practitioner, at the Gap Road Medical Centre, and he prescribed a pain medication, suggested physiotherapy and also referred the plaintiff for an ultrasound of her right shoulder.
29 Over the next few days, the plaintiff tried to manage her pain and discomfort in her right shoulder and arm with anti-inflammatory medication and rest. Despite rest and regular physiotherapy, the pain in her right shoulder and arm did not settle – it seemed to be getting worse.
30 The plaintiff was experiencing clicking and catching sensations in the tip of her right shoulder, occasionally resulting in not being able to move her arm. The plaintiff was suffering from muscle stiffness, soreness and tenderness in her neck to the back of her right shoulder, down the shoulder blade, with her right pectoral muscle and an intense pain at the front of the right collarbone in the AC joint area. The plaintiff was only managing to get a couple of hours’ sleep each night due to the pain and discomfort. She would wake in the early hours of the morning and be unable to get comfortable enough to go back to sleep. She would also suffer from head and neckaches.
31 The plaintiff’s general practitioner arranged for her to have a cortisone injection into the right shoulder, which was performed in April 2015, and gave some short-term improvement in the severity of the pain; however, the pain never went away and continued to get worse.
32 In late May 2015, the plaintiff returned to work under a return to work plan doing modified, light duties, such as socialising with clients, doing meal preparation and helping clients attend appointments. She was doing a “buddy” shift with her previous client, “Jessica”, who would have her usual carer employed by the defendant and she would attend as well to undertake extra duties within her restrictions.
33 The plaintiff gradually increased her hours of work, but struggled to continue at work because of ongoing soreness, episodes of unpredictable, often severe pain and loss of strength in her right shoulder and arm.
34 The plaintiff was offered a new additional shift working with a client with Huntington’s Disease and it would be necessary to take her to lunch and the supermarket. The plaintiff would also continue to do her shifts with DASSI on restricted duties as well – she would read, feed and entertain her previous male client.
35 In or around June 2015, the plaintiff had an MRI scan and was referred to the orthopaedic surgeon, Mr Soong Chua, who saw her in early July 2015 and recommended that she have a further cortisone injection into the right shoulder, which was undertaken on 9 July 2015. The injection gave little real relief and there was no ongoing or sustained improvement in the pain or in the movement of her right shoulder and arm.
36 In September 2015, the plaintiff’s then general practitioner, Dr Peterson, referred her for a CT scan of the right shoulder, and in October 2015, the plaintiff was further reviewed by the orthopaedic surgeon, Mr Chua, who then recommended surgery.
37 The plaintiff underwent surgery on 29 March 2016 at the Warringal Private Hospital. Her recovery from surgery was slow and painful and required regular physiotherapy and hydrotherapy treatments at Sunbury Physiotherapy. The plaintiff also performed home strengthening exercises under the guidance of her physiotherapist.
38 Following the surgery, the plaintiff developed symptoms in her right arm and was having pain in her right shoulder, pain up into her neck, down into the right shoulder blade and across the top of the shoulder. Movements of her right shoulder and arm were very restricted and painful. Furthermore, she would begin to have right bicep cramp and her right shoulder blade, pectoral muscle and the front ball of her shoulder would get extremely sore when trying to cook, wash her hair, tie her hair up, and any tasks that required reaching out or up. Her progress for recovery was slow and the entire right shoulder and arm region would fatigue quickly.
39 After the surgery, the plaintiff was offered shifts assisting two ladies with multiple sclerosis. These shifts were created by the defendant specifically to try and accommodate her suitable duties. The plaintiff would play Scrabble with one of the women, and the other she would help with emails, prepare frozen meals for lunch and watch television together. The plaintiff was also offered and accepted a “buddy” shift at a DHHS house, caring for a male client, and she continued working these shifts until about 28 August 2017.
40 In July 2016, following the first bout of surgery, the plaintiff returned to Mr Chua for review, and he referred her for an x-ray of the right shoulder. The plaintiff was told by Mr Chua that further surgery would not help her, and he recommended she continue with regular physiotherapy treatments. However, despite ongoing active treatment, she continued to struggle with ongoing pain and discomfort in the right shoulder and arm. The plaintiff described that at about this time, she began getting a skin crawling sensation in her right bicep, predominantly in the top of the bicep and across the top of her shoulder. She would also suffer from an ache in her right shoulder and a coldness sensation in the right hand.
41 In November-December 2016, the plaintiff was first prescribed Cymbalta, and by February 2017, was feeling “overwhelmed”. The plaintiff had had problems with depression in the past, and successfully recovered from those episodes. But because of the chronic, unremitting problems with her right shoulder and arm, she felt severely distressed, anxious and depressed.
42 The plaintiff’s physiotherapist referred her to a pain management program at the St Albans Pain Clinic, which started in or about February 2017. This program was a twelve-week intensive program involving three visits to the clinic each week. Such program helped the plaintiff to learn strategies to manage the pain, as well as improving her sleep quality. She believes that her Cymbalta prescription was increased whilst attending the pain clinic and she was also prescribed Allegron to help her sleep, and also an anti-inflammatory.
43 The plaintiff continued to have ongoing pain and loss of movement and difficulty in the use of the right shoulder and arm, together with the experience of cramping-like sensations in the right upper arm and shooting-like pains from her right shoulder blade. These frequently caused headaches, and she struggled to cope with these symptoms.
44 During May 2017, the plaintiff separated from her partner of six years and subsequently sold their house together. At that time, she lived there with him and her daughter.
45 On or about 28 August 2017, the defendant advised the plaintiff that they could no longer provide her with suitable duties at work. The following month, the plaintiff managed to obtain a rental property for her daughter and herself.
46 The psychological state of the plaintiff deteriorated, as did her sleep, and she was certified unfit to work during November 2017.
47 In December 2017, the plaintiff’s general practitioner again referred her back to the orthopaedic surgeon, Mr Chua, for further review. This time, Mr Chua recommended further surgery to her right shoulder to remove a large bone spur. Scans showed that the bone spur had grown and was now bone on bone.
48 The recommended surgery was performed on 27 February 2018 at Warringal Private Hospital and thereafter, the plaintiff has had continuing ongoing chronic problems with her right shoulder and arm. She continues to have significant, unpredictable pain in the right shoulder and arm and restricted movement and weakness of the right shoulder and arm. The pain is constant; it never goes away.
49 The plaintiff also has problems with her neck, and she believes they are due to the injuries to her right shoulder joint. Such problems involve difficulty turning her neck, and movements of her neck are restricted. She has headaches which occur frequently, especially in the early hours of the morning. The soreness stays for a day or two.
50 The plaintiff does stretches to try and manage the pain and has episodes of an altered sensation down her right arm and a cold feeling in the right hand. These episodes come and go and they are unpredictable in their occurrence.
51 The plaintiff describes her movements of her right shoulder and arm to be “very restricted” as a result of the pain and stiffness in the right shoulder. In particular, she has pain, discomfort and difficulty performing tasks that require her to:
· place her right arm behind her back, such as doing up her bra;
· raise/elevate her right arm upwards and above shoulder and head height, such as washing her hair.
52 Frequently, movements of her right shoulder and arm are very painful. Often, the pain is very acute and the plaintiff struggles to tolerate and cope with the pain. She continues to have episodes of cramping and abnormal sensations in the upper arm when moving her right arm. The cramping can be very intense when undertaking tasks that require her right elbow to be bent and her arm raised, such as carrying kindling for the fire, putting clothes on and holding a cart. Prolonged writing or computer use can aggravate the symptoms also. The plaintiff notes that she has learned from the pain clinic not to do activities to the point where she starts suffering from fatigue and pain.
53 The plaintiff considers that her right arm and shoulder have weakened and that the right arm lacks strength and power. She relies on her left arm and shoulder to complete many tasks. Many two-handed tasks which involve lifting, carrying, moving and manhandling moderate/heavy weights above waist level are difficult for her. Her partner, Michael, and her daughter often help with these tasks when they are at her place.
54 Daily tasks including shopping, cooking, cleaning and laundry are difficult for her, because of the pain and restricted movement of the right arm. She is now much more reliant on her left arm and struggles to do many cooking tasks, especially activities which involve repetitive movements and actions such as mashing potatoes, stirring when making a pasta sauce or using a mixer to make a cake. She describes that many simple domestic tasks which involve frequent, repetitive movements and actions of the right arm and shoulder, such as pushing, pulling and reaching, cause the pain in the right shoulder and arm to become much worse. For example she refers to vacuuming, mopping and sweeping, and she also struggles to do simple personal hygiene tasks such as showering, washing her hair, brushing her hair and tying up her hair.
55 The plaintiff can drive a vehicle, but has difficulty holding onto the steering wheel for prolonged periods of time and has difficulty placing her right hand at the 2 o’clock position on the steering wheel. Because of this, she places her right hand at the bottom of the steering wheel. Her right shoulder tires quickly and becomes painful and she has cramping-like sensations in the upper right arm. To relieve the cramping sensation she needs to drop her right arm down by her side.
56 The plaintiff describes her sleep to be “frequently disturbed” and she struggles to get a good night’s rest. She also wakes up suffering from neckaches which are intense and radiate from around her right ear into her right eye. She obtains some relief from these symptoms by using pain medication and trying to sleep on her left side. If these strategies do not work, she gets out of bed until the symptoms subside. The pain lingers, however.
57 The plaintiff describes that since sustaining her shoulder injury, she has become “increasingly emotional” and has lost a lot of her usual self-confidence. She does not like the way her shoulder and arm look and she also notes that there are now folds/crinkles in the skin on her right bicep which causes her to be self-conscious. When she sees her bicep in the mirror she is “disgusted” and mortified that that is what other people see.
58 The plaintiff describes that she struggles with “the blues” quite regularly and often feels that she needs help to manage to get herself back “on track” and in this respect, her psychologist has assisted her.
59 The plaintiff remains under the care of her general practitioner and her psychologist, Ms Bianca Reisman, who practices at Central Psychology. The plaintiff first consulted Ms Reisman in early 2019.
60 The plaintiff is presently prescribed and uses Cymbalta, Baclofen and Allegron.
61 The plaintiff no longer attends physiotherapy because it has not given her any ongoing sustained help in taking away acute pain in the shoulder or the neck.
62 Since injuring her right shoulder and arm, she has been unable to continue in her second job with DASSI. Work of this kind is now beyond her because of her injuries.
63 The plaintiff is in receipt of and reliant upon Centrelink benefits and she feels a loss of independence because of this. If not for her injuries, she would not be receiving Centrelink and would be working.
64 The plaintiff sets out the gross annual income she enjoyed with the defendant and with DASSI and as follows:
· Year ended 30 June 2012 - $31,971 (DASSI - $5,898) – total $37,869
· Year ended 30 June 2013 - $27,679 (DASSI - $9,465) – total $37,144
· Year ended 30 June 2014 - $26,495 (DASSI - $18,364) – total $44,859
· Year ended 30 June 2015 - $46,434.
65 By way of her second affidavit, the plaintiff gave evidence that she was still in a relationship with Michael Duffy, although they do not live together. Her daughter moved out last year and the plaintiff lives on her own.
66 The plaintiff referred to her earlier affidavit, and in particular, to the paragraphs where she described the symptoms and restrictions that she continued to suffer, along with the psychological issues, as a result of her right shoulder injury. She deposes in her second affidavit that these symptoms and restrictions have “remained largely unchanged”, although she considers that her mental state has deteriorated somewhat.
67 The plaintiff joined a crocheting group before the COVID-19 shutdown, more for the social side than for the crocheting itself, which the plaintiff struggles with due to the limited movement in her right arm. However, once COVID happened, the group stopped meeting and the plaintiff realised how extremely socially isolated she has become due to her injury, which depresses her.
68 At around Christmas time in 2019, the plaintiff had a significant flare-up of right shoulder pain because she had been wrapping presents and any repetitive movement, even something fairly minor like gift wrapping, continues to cause pain and other symptoms.
69 The plaintiff continues to suffer difficulties when driving and finds it easier to drive longer distances on the freeway than short distances in traffic because she does not need to turn her head when driving on the freeway, which aggravates her neck. The seatbelt sits across her collarbone when driving and she has to constantly adjust it.
70 Since her first affidavit, the plaintiff has started to suffer pain in her left shoulder and believes this is because she has been avoiding using her right hand and relying heavily on her left arm. She underwent an ultrasound late last year [that is late 2019], and an MRI scan earlier this year. The plaintiff was advised by her general practitioner that the radiology showed wear and tear in the shoulder joint, and that a cortisone injection may assist. She has a referral for such injection but has not followed that up due to the COVID-19 shutdown.
71 The plaintiff continues to take Allegron (25 milligrams) and Baclofen (10 milligrams) daily. The plaintiff’s general practitioner has changed her antidepressant medication from Cymbalta to Sertraline, which she takes one daily at a dose of 100 milligrams.
72 Furthermore, the plaintiff usually takes two Panadol in the morning, two at night, and more during the day, up to six or eight daily. However, if her pain is particularly bad, then instead of Panadol she will use Mersyndol or Tramadol to help her sleep. The plaintiff has to be careful with the Tramadol because it makes her nauseous if she takes more than a little, or takes it continuously, but over time, is the only thing that seems to settle the pain enough for her to sleep. The plaintiff believes that she takes Mersyndol or Tramadol instead of Panadol several times per week on average.
73 The plaintiff also takes other medications for unrelated conditions – medication for blood pressure and a thyroid condition, which she has for many years. Both of these conditions are stable and well controlled. She also takes Metformin for diabetes, and has done so since approximately 2012. This condition is also stable and does not cause any issues day to day.
74 The plaintiff also takes omeprazole, which is a medication which controls stomach acid, which she tends to suffer from when she is stressed. The plaintiff has been taking this medication for about a year and, prior to that, she was taking Nexium for the same condition.
75 The plaintiff has also been prescribed meloxicam, an anti-inflammatory, for the management of bilateral knee pain caused by arthritis.
76 The plaintiff notes that she has had issues with her knees on and off over the years and in early 2019, she had a left knee arthroscopy performed by Mr Chua, from which she recovered well. She continues to suffer some bilateral knee pain, but the meloxicam is highly effective in managing it and she is only affected minimally by that condition now.
77 The plaintiff continues to see her treating psychologist, Ms Bianca Riesman at Central Psychology, approximately monthly and the WorkCover insurer funds this treatment. The plaintiff is no longer having physiotherapy, as she did not find this helpful.
78 The plaintiff continues to see Dr Trisha Cunningham at the Vineyard Medical Centre in Sunbury, which has been her usual treating clinic for many years. Until February 2020, the plaintiff was seeing Dr Cunningham approximately monthly for certificates of incapacity and prescriptions but now sees her less frequently, due to the COVID-19 lockdown.
79 Near the end of her second affidavit, the plaintiff states:
“I continue to be unable to work. I do not know what job I could do with my restrictions. Any repetitious movement, even filing documents, turning pages, and using a computer keyboard, causes pain and spasming in my right shoulder and arm. I was formally let go by my employer in around February 2020, at which time I transitioned from a sickness benefit to Newstart allowance, which I continue to receive.”[16]
[16]See exhibit 1, paragraph 15 of the plaintiff’s second affidavit, at page 46 JCB
The evidence of Jessica Taylor – the daughter of the Plaintiff
80 The plaintiff also relies on the affidavit of her daughter, Jessica Taylor, affirmed on 21 July 2020.[17] In that affidavit, Jessica Taylor describes herself as the daughter of the plaintiff, and up to October 2019 – when she became engaged – she had lived with her mother for her entire life. She notes that they continue to have regular contact.
[17]See exhibit 1, pages 251-254 JCB
81 Miss Taylor confirms that her mother is right handed and that she suffered injury to her right shoulder in around 2015 when she was trying to put some kind of item onto a client named Jess.
82 Miss Taylor notes that ever since the accident, the plaintiff has complained of right shoulder and neck pain, together with headaches. The plaintiff would tell her that her pain radiated up from the shoulder into her neck and head. Furthermore, at times, she would say that she had slept badly or woken up with a severe headache. Her daughter never recalls her mother complaining of headaches before the incident in 2015.
83 Miss Taylor also notes that her mother has started to complain of left shoulder pain more recently.
84 Miss Taylor gives evidence that since the accident, her mother has frequently complained of difficulty with normal daily activities such as washing her hair, playing on her computer or cooking, and would blame her painful right shoulder for such difficulty.
85 When living with her, she noted that her mother would avoid doing things like moving full washing baskets, folding clothes and unloading groceries from the trolley at the supermarket and into the car and housework such as mopping, sweeping and vacuuming. Her daughter would do these things whenever she was available to help.
86 When living with her mother, she noticed that the plaintiff, when driving, would commonly hold onto the bottom of the steering wheel with either her left or right hand. She asserts that her mother told her that it hurt holding the steering wheel with both hands the way that she would normally do.
87 The plaintiff became much more emotional after the accident, expressed by being irritable, snappy and crying a lot more. This continues to be the case and has affected their relationship.
88 More recently, the plaintiff showed her the saggy skin on her right upper arm which looked very different to that on the left arm, as though it had “withered away”. She noticed that her mother often wore shawls and cardigans that covered this area, as she did not want people to see the right arm.
The radiology
89 The plaintiff has undergone various investigations and scans in relation to her right shoulder. These include:
(a) An ultrasound of the right shoulder taken on 27 February 2015 at the request of Dr Anne Peterson. The radiologist reported:
“Examination was difficult due to patient’s body habitus. Allowing for this, the long head of biceps tendon is of normal appearance. No subscapularis or supraspinatus or infraspinatus tendon abnormality seen. Minimal degenerative change is noted at the acromioclavicular joint.
The subacromial bursa is mildly thickened. There Is no evidence of impingement on dynamic testing.”[18]
[18]See exhibit 2 at page 48 JCB
(b) An MRI scan of the right shoulder undertaken at the request of Dr Emma Read on 2 July 2015. The radiologist concluded:
“1.No significant subacromial spur, there is mild to moderate AC joint degenerate change and mild to moderate subdeltoid bursitis.
2.Mild to moderate tendinosis without tear in the supraspinatus and infraspinatus tendon.
3.Focal 0.3cm area of increased signal intensity in the articular surface insertional fibres of the subscapularis consistent with local tendinosis/partial tear. No full thickness tear, retraction of tendon fibre or muscle belly atrophy is seen.”[19]
[19]See exhibit 2 at page 50 JCB
(c) A CT scan of the right shoulder arranged by Dr Anne Peterson on 25 September 2015. The radiologist reported:
“There is mild to moderate degenerative arthrosis with subchondral cyst formation and capsular distention of the acromioclavicular joint.
No fracture or dislocation is identified. The glenohumeral joint has a normal appearance with no fracture.
No soft tissue mass or swelling seen.
Conclusion:No acute fracture identified. AC joint arthrosis.”[20]
[20]See exhibit 2 at page 52 JCB
(d) An x-ray of the right shoulder arranged by Mr Soong Chua on 25 July 2018. The radiologist reported:
“… Subacromial decompression and AC joint exclusion is noted with alignment as demonstrated. Humeral head intact.”[21]
[21]See exhibit 2 at page 53 JCB
(e) An MRI scan of the right shoulder and an MRI scan of the cervical spine arranged by Mr Soong Chua on 24 January 2017.
The radiologist, in relation to the MRI scan of the right shoulder, concluded:
“Note is made of post surgical change at the level of the subacromial decompression, with resection of the distal clavicle indenting the supraspinatus muscle belly at its myotendinous junction. There is associated oedema in the underlying muscle belly. There is a small amount of fluid in the subacromial-subdeltoid bursa.
The supraspinatus tendon, infraspinatus tendon, subscapularis tendon and teres minor tendon appear unremarkable.
Note is made of the biceps tenotomy.
No glenohumeral joint effusion. The glenohumeral cartilage appears grossly intact.
The labrum appears intact.
There is some subchondral sclerosis posteriorly in the glenoid, however no definite overlying cartilage defect is demonstrated.
IMPRESSION The distal aspect of the clavicle indents the supraspinatus muscle belly at the myotendinous junction with associated muscle oedema.”[22]
[22]See exhibit 2 at page 54 JCB
The radiologist, in relation to the MRI scan of the cervical spine, concluded:
“There is a straightening of the normal cervical lordosis. There is normal intervertebral alignment. Normal bone marrow signal. Normal appearance of the craniocervical junction and normal signal of the imaged cord throughout.
At C2/C3, no significant discopathy. Unremarkable facet joints and no neural compromise.
At C3/C4, unremarkable disc and mild facet degenerative change. No neural compromise.
At C4/C5, moderate disc osteophyte bar and mild facet degenerative change but no significant narrowing of the neural exit foramina.
At C5/C6, mild disc osteophyte bar with marked right-sided uncovertebral hypertrophy which causes moderate narrowing of the right-sided C6 neural exit foramen. The nerve root is no longer surrounded by fact and is mildly displaced by the uncovertebral hypertrophy. The left-sided C6 neural exit foramen is capacious.
At C6/C7, mild generalised disc bulge. The neural exit foramina and central canal are capacious.
IMPRESSION Disc osteophyte bars in the mid cervical spine with narrowing of the right C6 neural exit foramina as described.”[23]
[23]See exhibit 2 at page 54 JCB
90 It is also to be noted that the plaintiff underwent ultrasound-guided injections into her right shoulder on 8 April 2015[24] and on 9 July 2015.[25]
[24]See exhibit 2 at page 49 JCB
[25]See exhibit 2 at page 81 JCB
The medical and like treatment undertaken by the Plaintiff
91 After the occurrence of the injury, the plaintiff consulted various doctors, initially at the Ranges Medical Centre situated in Gisborne, and from about September 2016, various doctors at the Vineyard Medical Centre situated in Sunbury.
92 On 25 February 2015, the plaintiff consulted Dr Anne Peterson at the Ranges Medical Clinic, stating that she had injured herself in the course of her employment at work on 19 February 2015 when she was putting an AFO onto the leg of a “morbidly obese client” when she injured her low back and right shoulder. By the time she consulted Dr Peterson, the back strain had resolved but she had ongoing “concerns” about the right shoulder pain.
93 Dr Peterson made an initial diagnosis of a right acromioclavicular joint strain. The treatment provided by Dr Peterson included arranging for the plaintiff to undergo an ultrasound of the right shoulder on 27 February 2015 and later, she was referred for physiotherapy, and prescribed anti-inflammatory medications. She was referred for an ultrasound-guided cortisone injection into the right AC joint in early April 2015.[26] Such treatment had “little effect” and she was referred for an MRI scan of the right AC joint on 2 July 2015[27] and also referred to the orthopaedic surgeon, Mr Soong Chua, who examined the plaintiff on or about 7 July 2015. In a report dated 7 July 2015, Mr Soong Chua states, in part:
“She has tenderness and prominence over the AC joint on the right side. There is some mild tenderness at the biceps tendon. She maintains a full range of flexion and abduction without a painful arc. She has external rotation to 50o and internal rotation to the lumbar spine. She has negative testing for subacromial impingement and testing of her supraspinatus tendon reveals pain but no rupture. This suggests some tendinopathy in supraspinatus. The remainder of her cuff testing is normal. She has a positive cross-arm adduction and O’Brien’s test for AC joint pathology.”[28]
[26]See exhibit 2 at page 49 JCB
[27]See exhibit 2 at page 50 JCB
[28]See exhibit 2 at page 56 JCB
94 At that time, Mr Chua had the MRI scan taken of the right shoulder on 2 July 2015 and he discussed with the plaintiff the findings on clinical examination and the findings of the scan. He diagnosed the plaintiff to be suffering from a right shoulder acromioclavicular joint arthropathy, biceps tendinopathy, subacromial bursitis and impingement. He reported that he considered that the plaintiff may require surgical intervention if non-operative management was unsuccessful. The plaintiff underwent a repeat AC joint injection on 9 July 2015 to see whether this would improve her condition.
95 Ultimately, Mr Chua performed surgery on 29 March 2016, consisting of a right shoulder arthroscopy - acromioplasty, E/O subacromial bursa and biceps tenotomy and mini open E/O distal clavicle.
96 Dr Peterson, at the Ranges Medical Centre, last saw the plaintiff on 18 April 2016, at which time she was post operation and was certified of having no capacity for work for the following month.
97 The plaintiff first sought medical treatment from the Vineyard Medical Centre on 19 September 2016, when she consulted Dr Grace Ho, after which she consulted Dr Ragvir Singh on 20 December 2016 in relation to the right shoulder injury. Dr Singh noted that prior to her attendance at the Vineyard Medical Centre, the plaintiff had been treated predominantly by her physiotherapist and orthopaedic surgeon. Dr Singh referred the plaintiff back to the treating orthopaedic surgeon, Mr Chua, who again consulted with the plaintiff on or about 11 January 2017.
98 In a report dated 11 January 2017,[29] Mr Chua notes that the plaintiff made a slow recovery from her surgery on 29 March 2016 and it took her some time to regain a reasonable range of motion. Although over this time her pain improved, she experienced regular exacerbations, with no apparent triggering event or specific activity. The plaintiff informed Mr Chua that she had continued to have physiotherapy throughout the period since the surgery and although her strength had somewhat returned, she felt that the shoulder was unable to function normally and that she had been unable to resume her usual duties as a personal carer.
[29]See exhibit 3 at pages 58-59 JCB
99 At that examination, the plaintiff described pain at the lateral ball of the shoulder, centred on the deltoid muscle and radiating down the arm. She also experienced sharp exacerbations with the shoulder in abduction. There was muscle tightness throughout the supraspinatus belly extending into the neck. Anteriorly she also experienced pain to the pectoralis muscle region. Superiorly at her AC joint, there was no pain but she feels a clicking sensation with certain movements.
100 Examination revealed there was a well-healed scar with minimal tenderness over the clavicle itself. There was no tenderness over the AC joint, although anterior to this there was some mild tenderness. She was able to flex the shoulder to 130 degrees, abduct to 130 degrees, externally rotate to 30 degrees and internally rotate to the mid lumbar spine.
101 Provocative testing of her AC joint was negative. Specific testing of the rotator calf muscles was also negative, with the tendons appearing intact and still maintaining good power. Although she had discomfort at the extremes of her range of motion, formal impingement testing was negative.
102 At that examination, Mr Chua noted that he was “not sure exactly what is causing the ongoing pain in Sue’s shoulder”. At that time, he raised the possibility that the plaintiff may have pain radiating from her neck, and also the possibility that she had developed a Chronic Regional Pain Syndrome.
103 In his report dated 14 March 2017,[30] Dr Singh states:
“The intra-operative diagnosis for Susan’s injury, according to her orthopaedic surgeon Mr Soong Chua, was right shoulder acromioclavicular joint arthropathy, biceps tendinopathy, subacromial bursitis and impingement. Susan continues to experience refractory chronic right shoulder pain, the aetiology of this pain is still being further investigated by her orthopaedic surgeon.
Susan has also developed reactive depression secondary to her chronic right shoulder pain.
As a result of her injury and subsequent chronic pain and reactive depression, Susan continues to suffer from incapacity to work by reason of her injury.”[31]
[30]See exhibit 3 at page 60 JCB
[31]Op cit at page 60 JCB
104 At the time of that report, Dr Singh noted that the plaintiff last sought treatment on 21 February 2017, at which time she was assessed as having a capacity to work with modifications. Those modifications included:
· light pulling/pushing under resistance or load
· minimising reaching beyond 200 centimetres from her body with loads greater than 3 kilograms
· no lifting above 15 kilograms bilaterally, both arms
· intermittent reaching overhead right arm (no weight); and
· to try “buddy” shifts within these restrictions in personal care only.
105 One of the doctors at the Vineyard Medical Centre referred the plaintiff back to Mr Chua, who examined her seemingly on or about 20 December 2017.[32]
[32]See report dated 20 December 2017, exhibit 3 at page 63 JCB
106 At that examination, Mr Chua noted that the plaintiff had had repeat imaging in January 2017 that demonstrated a small spur of the distal clavicle which was possibly causing impingement of the underlying supraspinatus muscle and subacromial bursa. At the time, Mr Chua did not believe this would require surgery as her symptoms appeared to stabilise.
107 Mr Chua notes that at that time (that is, earlier in the year), he considered that the plaintiff would not require any surgery as her symptoms had appeared to stabilise. However, he records that since then her symptoms have progressed and the pain affecting the anterior and superior aspect of her shoulder adjacent to the AC joint had become worse.
108 Again, he reports that the plaintiff had more severe symptoms and signs of subacromial bursitis with impingement, and clinical assessment of her rotator cuff tendons revealed some pain with activation of supraspinatus but that the tendons were all intact. He further notes that this was confirmed on the same MRI scan from January, although she may have developed tendinosis since then.
109 In that report, Mr Chua opines that he was of the opinion that the plaintiff would benefit from further surgery involving the decompression of the subacromial space and the spur being removed.
110 Ultimately, on 27 February 2018, the plaintiff underwent a right shoulder arthroscopic subacromial decompression and excision of the distal clavicle.
111 In a report dated 5 December 2018 to Dr Mais Ali of the Vineyard Medical Centre,[33] Mr Chua notes that the plaintiff continued to have symptoms related to her right shoulder and in particular, a persistent and generalised ache which was centred over the mid clavicle and along the line of the conjoint tendon, radiating into the biceps muscle itself. The plaintiff noted that she experiences cramping and fatigue of the biceps muscle, although the impingement and the AC joint symptoms appeared to have resolved but the recovery for the rest of her shoulder had “plateaued”.
[33]Exhibit 3 at page 66 JCB
112 Mr Chua notes that biceps cramping and fatigue can occur in the setting of a tendinopathy, although it is unusual for this to persist. Mr Chua was of the opinion that the plaintiff should persist with her shoulder exercises, also noting that her progress had been limited.
113 In a report dated 31 October 2019, Dr Angela Hawkins of the Vineyard Medical Centre responds to a variety of questions posed to her by those acting for the plaintiff.[34] In particular, Dr Hawkins states that the plaintiff is suffering from a Complex Regional Pain Syndrome of her right shoulder that is likely not to change significantly in the next year and furthermore, the plaintiff is suffering reactive depression/anxiety which may improve with further management. Dr Hawkins was of the view the plaintiff did not have a capacity for work at the present time and in particular, states:
“Currently, Susan has significant chronic daily right shoulder pain, stiffness and weakness which will result in difficulty doing daily activities e.g. food preparation, shopping, cleaning. She also has reactive depression/anxiety which means her motivation, concentration and energy levels will affect her ability to undertake activities.
… .”[35]
[34]See report dated 31 January 2019, exhibit 3 at pages 67-68 JCB
[35]See report of Dr Hawkins dated 31 January 2019, exhibit 3 at page 68
114 I also refer to a medical report dated 30 June 2020 from Dr Trisha Cunningham – a further doctor from the Vineyard Medical Centre – wherein she asserts that due to the chronic nature of the condition suffered by the plaintiff, she does not believe the plaintiff will return to the workforce. Furthermore, when queried whether, as a consequence of the “physical injury”, the plaintiff is likely to be precluded or restricted in relation to her social, domestic or recreational activities for the foreseeable future, the doctor answered: “Yes, moderate-severe.”
115 Dr Hawkins also referred the plaintiff to Central Psychology, and in particular, to the psychologist, Ms Bianca Reisman, who initially consulted with the plaintiff on 15 February 2019, and at the date of her report – 1 July 2020 – the plaintiff had consulted with Ms Reisman on thirteen occasions.
116 At the time of the assessment, the plaintiff reported stress, anxiety, sleep issues, low self-esteem and physical pain following her injury at work in February 2015.
117 Various tests were performed which indicated that the depression experienced by the plaintiff was in the “moderate” range, whereas the anxiety suffered by the plaintiff was within the “severe” range. Ms Reisman made a diagnosis of an Adjustment Disorder with Generalised Anxiety and Depression.
118 Ms Reisman expressed the opinion that from a psychological point of view, the plaintiff had a limited ability for employment and, importantly, this would need to take into account her physical abilities. Any future employment would need to consider her limited ability to focus and concentrate, it would need to be flexible to allow for breaks or absences if there are any pain flare ups and it would most likely need to be part time.
The medico-legal reports relied on by the Plaintiff
119 The plaintiff relies on the following medico-legal examinations undertaken by the following:
(a)the specialist occupational physician, Dr Joseph Slesenger, who consulted with the plaintiff on 4 May 2018[36] and on 19 May 2020;[37]
(b)the psychiatrist, Professor Nick Paoletti, who examined the plaintiff on 25 May 2018[38] and on 15 May 2020;[39]
(c)the orthopaedic surgeon, Dr Ash Chehata, who examined the plaintiff on 14 August 2018[40] and on 28 April 2020;[41]
(d)the pain specialist/cardiologist, Dr Peter Blombery, who examined the plaintiff on 19 November 2019.[42]
[36]See report dated 17 May 2018, exhibit 4 at page 71 JCB
[37]See report dated 11 June 2020, exhibit 4 at page 131 JCB
[38]See report dated 25 May 2018, exhibit 4 at page 82 JCB
[39]See report dated 15 May 2020, exhibit 4 at page 117 JCB
[40]See report dated 11 September 2018, exhibit 4 at page 95 JCB
[41]See report dated 2 May 2020, exhibit 4 at page 109 JCB
[42]See report dated 19 November 2019, exhibit 4 at page 101 JCB
120 When initially assessed by Dr J Slesenger on 4 May 2018, he obtained a history of the occurrence of her right shoulder injury, the various medical treatments and the two bouts of surgery performed by Mr Chua. At the time of examination, the plaintiff advised Dr Slesenger that subsequent to her last bout of surgery, she had been treated with physiotherapy and a self-managed exercise program.
121 Dr Slesenger noted that on examination, the plaintiff was “interacting well” and “gave a clear and consistent account of her injuries”. He also noted that her affect was normal. Dr Slesenger made a thorough examination and reviewed the various medical reports that had been forwarded to him. In his report dated 17 May 2018, Dr Slesenger states, in part:
“Ms Taylor presents 3 years after a right shoulder injury that she sustained during the course of her employment. She was initially managed conservatively and underwent 2 procedures, namely:
● Right shoulder arthroscopic acromioplasty, excision of subacromial bursa, biceps tenotomy and mini-open excision of distal clavicle.
● Right shoulder arthroscopic subacromial decompression and excision of the distal clavicle.
She describes residual right shoulder pain and associated dysfunction with associated occupational, domestic and recreational restrictions.
She has a psychological impairment, though this is outside my area of expertise.”[43]
[43]See exhibit 4 at page 79 JCB
122 Dr Slesenger diagnosed the plaintiff to have suffered a right shoulder soft-tissue injury with residual right shoulder dysfunction.
123 At the time of that examination, he noted that the plaintiff was in the early phase of recovery and he expected some further improvement. However, at that stage, he considered the plaintiff unfit for her pre-injury duties and did not have a capacity for suitable alternative employment.
124 When re-examined on 19 May 2000, the plaintiff advised Dr Slesenger that she has continued to have residual right shoulder pain which radiates into the right side of her neck and there is associated weakness in the right arm. The plaintiff also informed Dr Slesenger she experiences periscapular pain. In particular, she advised Dr Slesenger that she cannot sustain forward reach (or perform tasks repetitively) and cannot over shoulder reach. At night, she cannot lie on her right side and tends to lie on her left side. Her symptoms are constant, severe, aggravated by activity and cold weather, but can also deteriorate spontaneously.
125 Again, Dr Slesenger made a thorough examination and reviewed various reports and radiology forwarded to him.
126 At that time, Dr Slesenger was of the opinion that the plaintiff suffered residual dysfunction in the right shoulder following a soft-tissue injury, and chronic right shoulder pain with evidence of chronic adhesive capsulitis. Such condition was directly related to the right shoulder injury suffered by the plaintiff.
127 At the time of examination, Dr Slesenger was of the opinion that the plaintiff could not return to her pre-injury role and furthermore, bearing in mind her literary skills, her poor computer skills, her qualifications, her past employment history, the bilateral nature of her symptoms, her dexterity (right-handed), the variable and unpredictable nature of her symptoms, he was of the opinion that she is unlikely to be able to return to work in a role for which she has suitable training and experience on a consistent and reliable basis. Furthermore, in relation to her right shoulder impairment, Dr Slesenger did not anticipate any significant alteration in her presentation in the foreseeable future.
128 When initially examined by the psychiatrist, Associate Professor N Paoletti on 25 May 2018, the plaintiff gave a history of the occurrence of the injury and the various limitations she suffers. Furthermore, she gave an extensive history of the treatment that she has undergone in relation to her condition and the various problems over the years. Professor Paoletti made a mental state examination. Ultimately, he was of the view that the plaintiff suffers from:
· a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood
· Relationship Distress With Spouse or Intimate Partner 0 – which refers to the previous partner of six years, and the end of her relationship about a year before the examination.
129 Although Professor Paoletti was of the opinion that the plaintiff did not have a current work capacity, he noted that she did appear to be a motivated person and that there could well be a future work capacity within any physical limitations brought about by the shoulder injury.
130 When later examined on 15 May 2020, Professor Paoletti was of the same view as to diagnosis and was also of the opinion that at the time of his examination, the plaintiff had no capacity to perform her pre-injury duties or a capacity to perform alternative work.
131 When initially examined by the orthopaedic surgeon, Mr A Chehata on 14 August 2018, a full history was obtained as to the occurrence of the injury, the various treatments and the surgeries undertaken by the plaintiff.
132 Mr Chehata made an examination of the plaintiff, which involved the assessment of active and passive ranges of movement.
133 Mr Chehata diagnosed the plaintiff to be suffering an aggravation of degenerative change in the AC joint and “failed conservative measures, two cortisone injections, physiotherapy, and subsequent operative open excision, and then revision arthroscopic surgery”.
134 Mr Chehata considered the prognosis of the condition to be guarded, as the excision of the AC joint translates into the excision of the joint, therefore precluding any degenerative change likely, with irritability likely to be related to the adhesive capsulitic picture, that can be quite recalcitrant in a diabetic.[44]
[44]Mr Chehata obtained a history from the plaintiff that she is a non-insulin dependent diabetic requiring Metformin
135 When queried as to the plaintiff’s capacity for employment, Mr Chehata stated:
“She has no capacity to return to heavy awkward manual duties and manual handling. She certainly believes that she would be able to return to suitable duties, and from her perspective, working as a carer, there are clear opportunities working in certain facets of the caring role which she feels she can perform, such as working in respite. She feels that she would be able to sleep overnight, with a patient and essentially there are multiple caring roles that are less physically demanding, which she feels would be entirely appropriate.”[45]
[45]See report of Mr Chehata dated 11 September 2018, exhibit 4 at page 99 JCB
136 When subsequently examined by Mr Chehata on 28 April 2020, Mr Chehata had available most of the medico-legal material from both sides and much of the radiology.
137 When examined, the plaintiff presented with severe diffuse pain and described her right shoulder as sitting far lower than the left. Although there are no changes in the scars, she had quite significant scapulothoracic pain and diffuse neck pain. She was unable to rotate to the right more than 30 degrees and rotate to the left 40 degrees.
138 In his report dated 2 May 2020, Mr Chehata states:
“My impression certainly is that there is significant presentation of likely injury of the right shoulder with an aggravation of AC joint degenerative change, coupled with the development of severe chronic pain and sensitisation phenomena and the development of adhesive capsulitis, which has really not improved even after numerous cortisone injections, physiotherapy, hydrotherapy and operative intervention.
… .”[46]
[46]See report of Mr Chehata dated 2 May 2020, exhibit 4 at page 112 JCB
139 Later in his report, Mr Chehata also stated:
“I cannot foresee that she has any capacity to work as a carer. She struggles to care for herself and has both a clear physical and psychological component to her presentation. She now has clear features of peripheral and central sensitisation and I cannot foresee that she will gain any form of employment in the open workplace in her current state.
She has ongoing significant global pain across the shoulder and neck. And at this point in time this will clearly preclude her ability to return back to any form of employment.”[47]
[47]See report of Mr Chehata dated 2 May 2020, exhibit 4 at page 113 JCB
140 When examined by Dr Blombery on 19 November 2019, he also had supplied most of the radiology and various reports from both treating doctors and medico-legal specialists.
141 Dr Blombery obtained a history from the plaintiff of the occurrence of her injury and the various treatment and surgeries undertaken by her.
142 Dr Blombery notes that on examination, the plaintiff was a “pleasant woman who was overweight but presented in an authentic manner”.
143 Dr Blombery diagnosed the plaintiff to be suffering from previously asymptomatic degenerative changes in the right shoulder which have been rendered with soft tissue injury to the area complicated by a pain syndrome. He considered the prognosis to be “poor”.
144 When asked whether she could return to her pre-injury duties or alternative, other suitable employment, Dr Blombery expressed the opinion that she had an incapacity for work by reason of the injuries.
The medico-legal reports relied on by the Defendant
145 The defendant relies on the following medico-legal examinations undertaken by the following:
(a)the occupational physician, Dr Michael Lucas, who examined the plaintiff on 18 June 2015[48] and on 22 October 2019.[49] Dr Lucas also supplied a letter dated 21 July 2020;[50]
(b)the psychiatrist, Dr Michael Duke, who examined the plaintiff on 21 March 2017;[51]
(c)the orthopaedic surgeon, Dr Gale Curtis, who examined the plaintiff on 21 March 2017;[52]
(d)the orthopaedic surgeon, Mr Siva Chandrasekaran, who examined the plaintiff on or about 26 February 2019;[53]
(e)the psychiatrist, Dr Arunava Das, who examined the plaintiff on 25 March 2017.[54]
[48]See report dated 18 June 2015, exhibit A at page 163 JCB
[49]See report dated 26 October 2019, exhibit A at page 208 JCB
[50]See exhibit A at page 258 JCB
[51]See report dated 24 March 2017, exhibit A at page 190 JCB
[52]See report dated 29 March 2017, exhibit A at page 198 JCB
[53]See report dated 26 February 2019, exhibit A at page 203 JCB
[54]See report dated 1 April 2020, exhibit A at page 217 JCB
146 When examined by Dr Michael Lucas on 18 June 2015, he obtained a history from the plaintiff of becoming aware of low back and a right shoulder discomfort on 19 February 2015 on the way home from work. Dr Lucas also obtained a history of the treatment and the surgical activity. Dr Lucas records that the plaintiff estimates her current discomfort was in the order of 80 per cent improved when compared to initial symptom awareness – however, she continued to be concerned with regards to her ongoing shoulder symptoms. The plaintiff informed Dr Lucas that there was variable right anterior shoulder discomfort ranging from zero to 8 or 9 out of 10, exacerbated in association with pushing, reaching, lifting and driving activities. The plaintiff also recorded variable clicking and clunking in the shoulder. After making an examination, Dr Lucas responded to various questions posed by those acting for the defendant.
147 When queried as to the injury or medical conditions suffered by the plaintiff, Dr Lucas stated:
“Ms Taylor’s considered diagnosis is symptomatic AC joint degenerative disease. Ms Taylor’s physical tasks/upper limb loading activities associated with her employment activities may reasonably be viewed as having exacerbated/aggravated her underlying condition to a significant degree.”[55]
[55]See exhibit A at page 167 JCB
148 Dr Lucas was also of the opinion that the plaintiff had had a reasonable trial of work activity restrictions and it was now approaching four months post-symptom onset and that it was reasonable –
“… to encourage … [the plaintiff] to return to her usual day-to-day activity participation including work participation with or without a further AC joint injection if desired.”[56]
[56]See exhibit A at page 167 JCB
149 When later seen on 22 October 2016, the plaintiff had undergone the second surgical procedure by Mr Chua. At that time, Dr Lucas was supplied with the reports of the treating orthopaedic surgeon, Mr Chua, and various other reports from treating doctors, together with a wide range of the radiology. Although noting details of the second surgery undertaken by Mr Chua on 27 February 2018, Dr Lucas incorrectly records in his own report that the surgery was undertaken on 24 February 2017 and, according to the plaintiff, she had last attended orthopaedic review during 2017.
150 In any event, at the time of the second consultation, the plaintiff reported diffuse variable right shoulder discomfort, estimating discomfort currently as ranging from zero to, on occasions, 7 or 8 out of 10 involving the whole of the shoulder, the scapular region and the neck.
151 Dr Lucas also noted that the plaintiff complained of left shoulder discomfort.
152 After making an examination, Mr Lucas, when queried about the capacity of the plaintiff, stated:
“On the basis of current review in my opinion indications for restricting Ms Taylor from normalising her activity participations including normalising her home or work presence, undertaking usual home or work duties maintaining appropriate spine care awareness and manual handling awareness may reasonably be viewed as limited.”[57]
[57]See exhibit A at page 214 JCB
153 Later, Dr Lucas was sent the medical report from Dr Cunningham (Vineyard Medical Centre) dated 1 June 2020, the report from the psychologist, Ms Bianca Reisman, dated 1 July 2020 and a Flexi Personnel Employment Assessment Report dated 26 June 2020 for Shine Lawyers, outlining considered return to work barriers as indicating from a recruitment perspective, an opinion that the plaintiff would have difficulty in efficiently and consistently finding suitable alternative employment.
154 When queried to comment on such material, Dr Lucas noted that the material had been “reviewed” and that “indicated opinions are valued and respected. Indicated material does not materially alter my opinion as provided in my report of 26.10.2019”.[58]
[58]See exhibit A at page 249 JCB
155 When the psychiatrist, Dr Michael Duke, consulted with the plaintiff on 21 March 2017, the plaintiff gave a history of the onset of her right shoulder pain and detailed the current situation of the problems that she was experiencing. Dr Duke obtained a past medical history, family history, personal history, work history and marital history. Furthermore, he made a mental state examination. Ultimately, Dr Duke opined that from a psychiatric point of view, the plaintiff suffered from a secondary Adjustment Disorder with Mixed Anxiety and Depressed Mood which was secondary to the physical injury, and continued to be a cause of her psychiatric condition. However, he considered that from a narrow psychiatric perspective, there is no impediment to return to work. This report, of course, was between the first and second bouts of surgery undertaken by the plaintiff.
156 When seen by the orthopaedic surgeon, Dr Gale Curtis, on 21 March 2017, the plaintiff gave a history that since the first bout of surgery, there had been a large or increasing range of movement but her pain levels remained roughly the same. In particular, the plaintiff complained of trouble with overhead work and repetitive duties, and also with lifting.
157 It is to be noted that Dr Curtis had previously reported on 6 June 2016. Of course, the second examination was prior to the later surgery on 27 February 2018.
158 After making an examination, Dr Curtis diagnosed the plaintiff to be suffering from “post-operative stiffness, right shoulder”.[59]
[59]See exhibit A at page 200 JCB
159 Dr Curtis also stated that an analysis of causation would suggest that the plaintiff has had pre-existing rotator cuff arthropathy and AC joint arthropathy as being her major issues which she has aggravated by employment. However, Dr Curtis considered that “one year post surgery, I do not consider employment is still her major cause of impairment”.[60]
[60]See exhibit A at page 200 JCB
160 Dr Curtis considered the plaintiff had the capacity to gradually increase her then 15 hours per week with the defendant to normal pre-injury hours over the next two to three months, although with restrictions of limited lifting, pushing and pulling of no greater than 4.5 kilograms or thereabouts.
161 The orthopaedic surgeon, Mr Siva Chandrasekaran, examined the plaintiff on or about 26 February 2019 and obtained a history from the plaintiff in relation to the circumstances surrounding her right shoulder injury on 19 February 2015. Furthermore, he obtained a history of the various treatments given to the plaintiff, including the last bout of surgery on 27 February 2018.
162 At the time of his examination, the plaintiff stated that she had constant right neck and shoulder pain associated with muscle spasming. Such pain was exacerbated by lifting the shoulder above her head and repetitive above-head movements. Other exacerbating factors included cooking and driving for up to 30 minutes. The pain is also associated with a cold feeling to her hand and a feeling as though spiders are running over her arms. She had no issues with her lower back.
163 After making a clinical examination, Mr Chandrasekaran diagnosed the plaintiff to be suffering a right shoulder subacromial bursitis, impingement and distal clavicle spur. Furthermore, he considered it unlikely that the plaintiff would recover full resolution of her symptoms and she most likely will have some impairment related to her right shoulder.
164 When examined by the psychiatrist, Dr Arunava Das, on 25 March 2020, Dr Das had available the various documents supplied to him and obtained a detailed history from the plaintiff in relation to her history of injury, past psychiatric history, past family and personal history, and premorbid personality. Dr Das also made a mental status examination.
165 As a result of a “primary injury” work-related physical injury to her right upper limb, the plaintiff has also suffered a second injury – that being the Adjustment Disorder with Mixed Anxiety and Depressed Mood.
166 Dr Das was of the opinion that the anxiety and depressive symptoms had become chronic in the context of her chronic pain-symptoms. Dr Das also obtained a history that the plaintiff had been attending the psychologist, Ms Bianca Reisman, and at the time of his examination, she had attended Ms Reisman on six occasions.
167 Dr Das was of the opinion that the psychological treatment should continue for the time being and although on a low dose of Sertraline, which he considered should be increased to 100 milligrams at that time, he considered the prognosis of the Adjustment Disorder with Mixed Anxiety and Depressed Mood suffered by the plaintiff was “guarded” as it was dependent on the outcome of her chronic pain-symptoms in relation to the right shoulder.
Report from Flexi Personnel dated 26 June 2020
168 Those acting for the plaintiff also rely on a report from Flexi Personnel dated 26 June 2020.[61] The author of such report was Ms Mary Oliver, and according to her biography attached to the report, she has had over twenty-five years of experience in a variety of industries and business in the open labour market, gaining extensive experience in human resources, recruitment and training.
[61]See exhibit 5 at pages 146-162 JCB
169 Ms Oliver had an hour and three-quarter telephone interview with the plaintiff on 17 June 2020 (during the COVID-19 lockdown period) and obtained details from the plaintiff of her educational and employment background, with details of any qualifications and the like. She also obtained details of the injury suffered by the plaintiff, together with what the plaintiff said were her limitations involving the right shoulder.
170 Ms Oliver also had medical opinions from Dr Joseph Slesenger, Associate Professor Nick Paoletti, Mr Ash Chehata, Dr Peter Blombery and Dr Michael Lucas.
171 Ultimately, Ms Oliver opines that based on the recent information provided by the plaintiff and taking into account her medical reports, self-reported tolerances and her pre-injury skills and experience, that there is no question that her work capacity has been negatively affected by her right shoulder injury, especially if expected to work unrestricted.
172 Ms Oliver was also of the opinion that when assessing the plaintiff’s potential capacity for performing suitable alternative employment, from a recruitment view, even if she gained a medical clearance and were to attempt to re-enter the workforce, what type of role could she retrain into and safely perform without potentially further aggravating her injury and also work within restrictions and limitations.
173 Ultimately, Ms Oliver states:
“In my opinion as a recruiter, from reading her medical reports and following discussions with Susan, her limitations as a result of her right shoulder injury and subsequent restrictions, chronic pain and disabilities, have depleted her ability to perform her pre-injury role and her overall general employability both currently and for the foreseeable future. This I believe is supported by her inability to successfully return to the workforce in any capacity following the withdrawal of suitable duties by … [the defendant] in August 2017, a period of over 2¾ years.
… .”[62]
[62]See exhibit A at page 160 JCB
The cross-examination of the Plaintiff
174 Under cross-examination, the plaintiff accepted that both bouts of surgery – the first on 29 March 2016 and the second on 27 February 2018 – did give her some benefit. Furthermore, the plaintiff accepted that after the first bout of surgery, she went back performing restricted and modified duties from May 2015 to 28 August 2017.
175 When queried as to the sort of duties she was performing, the plaintiff initially said she had a couple of clients, and then the following evidence was given:
Q: No, just in general terms?---
A:Just in general I was included in buddy shifts with two clients, so in other words I was added person just to - just to do the light duties and things like that.
Q:Yes?---
A:Another client I made sure she had lunch, or if she needed something in - shopping, we’d go to the supermarket. Another client I played scrabble with for a couple of hours. And the other one I, yeah, helped her, you know, put her Lite n’ Easy meal in the microwave, and typed a short email for her, and we just socialised.
Q: Any of - - -.”
HIS HONOUR:
Q:“Can I ask you, can I just break in there, just wanted to clear up something. You were asked about when you left school and you worked in the pharmacy for a while, at the - in the photographic department there. And then you said you’d had time off to have your two children. And then the next part of your affidavit you’re talking about you completed a Certificate 3 in Aged Care in 2007. Is that when you resumed into the workforce?---
A:Yes.
Q:And what made you choose that sort of work?---
A:To be - to be able to be in the community and help people, you know, people that can’t do things for themselves, to assist them in getting their - their things done.
Q:And did you enjoy that work?---
A:I did.
Q:Yes. Yes, thank you?---
A:Yes.
Q:Yes, thank you, Mr Middleton.”
MR MIDDLETON:
Q:“Now, did those modified duties that we’re talking about, did any of those modified duties involve you staying overnight in a client’s place?---
A:No.
Q:That ceased, as we said, on the 28th of August 2017. If that had’ve been kept open for you, I’d suggest you probably would’ve continued on working in those modified duties?---
A:Is that a question?
Q:I suggest to you – you can disagree with me or agree with me –what I’m suggesting is if on the 28th of August 2017 the employer didn’t withdraw those duties, you probably would’ve kept working, doing those modified duties?---
A:I can’t really answer that.
Q:Well, the only reason you ceased work on the 28th of August 2017 was because they were withdrawn; is that correct?---
204 Although she can drive a car, she has difficulty holding onto the steering wheel for prolonged periods of time and often has cramping-like sensations in the upper right arm.
205 Her sleep is frequently disturbed and, prior to her injury, she naturally slept on her right side. If she rolls on her right side during sleep she will wake with severe soreness and pain in the right shoulder and arm.
206 Given my findings on the credibility of the plaintiff, I accept that the plaintiff experiences such restrictions and pain.
207 Furthermore, the plaintiff also deposes in her second affidavit that she takes two Panadol in the morning, two at night and more during the day, up to six or eight daily. Furthermore, if her pain is particularly bad, then instead of Panadol she will take Mersyndol or Tramadol to help her sleep. This can be several times per week on average and she did state in her cross-examination that, of more recent times, she tends to take Mersyndol rather than Tramadol.
208 Again, I accept that evidence from the plaintiff as to the medication she takes.
209 The plaintiff continues to see Dr Cunningham at the Vineyard Medical Centre in Sunbury and also attends her treating psychologist, Ms Bianca Reisman, although this has been disrupted because of the COVID-19 lockdown.
210 Again, as I have recorded, Mr Chua, the treating orthopaedic surgeon of the plaintiff, seemingly last reported in December 2018, when he noted that the plaintiff continued to have symptoms related to her right shoulder with a persistent and generalised ache which is centred over the mid clavicle and along the line of the conjoint tendon, radiating into the biceps muscle itself. He also noted that she experiences cramping and fatigue in the biceps muscle. Although he considered that the impingement and the AC joint symptoms appeared to have resolved, the recovery for the rest of the shoulder has “plateaued”.[74]
[74]See exhibit 3 at page 66 JCB
211 The specialist occupational physician, Dr Joseph Slesenger, in his last report dated 11 June 2020,[75] was of the opinion that the plaintiff had suffered residual dysfunction in the right shoulder following a soft-tissue injury, aggravating degenerative disease of the right shoulder, for which she has undergone right shoulder arthroscopic acromioplasty, excision of the subacromial bursa, biceps tendinopathy, a mini open incision of the distal clavicle on 29 March 2016 and right shoulder arthroscopic subacromial depression and excision of the distal clavicle on 27 February 2018. He considered that she continues to suffer chronic right shoulder pain.
[75]See exhibit 4 at page 131 JCB
212 The orthopaedic surgeon (specialising in upper limbs), Mr Ash Chehata, in his last report dated 2 May 2020,[76] was of a similar opinion to Dr Slesenger, in that he considered the plaintiff had suffered an aggravation of the AC joint degenerative change, coupled with development of severe chronic pain and sensitisation phenomena and the development of adhesive capsulitis which had not improved after numerous cortisone injections, physiotherapy, hydrotherapy and operative intervention.
[76]See exhibit 4 at page 112 JCB
213 I also refer to the report of the pain specialist, Dr Peter Blombery,[77] who examined the plaintiff on 19 November 2019 (post the second bout of surgery) and he ultimately proffered the opinion that partly on clinical examination and the various imaging, the injury suffered by the plaintiff had resulted in previously asymptomatic degenerative changes being rendered symptomatic, together with some mild supraspinatus tendinosis.
[77]See exhibit 4 at page 101-107 JCB
214 Dr Blombery was also of the opinion that the plaintiff had suffered a Pain Syndrome in the affected area where there was sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. He also noted that the plaintiff had intermittent spasms in the right biceps muscle and noted that this is not uncommonly seen in patients who develop pain syndromes where there is a component of motor abnormality as well. He considered her prognosis for improvement was “poor”.
215 I also refer to the opinion of the orthopaedic surgeon, Mr Siva Chandrasekaran, who examined the plaintiff on or about 26 February 2019 on behalf of the defendant.
216 In his report dated 26 February 2019,[78] Mr Chandrasekaran diagnosed the plaintiff to be suffering from right shoulder subacromial bursitis, impingement and a distal clavicle spur. He considered that it was unlikely the plaintiff would achieve full resolution of her symptoms and that she was most likely to have some impairment related to her right shoulder.
[78]See exhibit B at pages 203-207 JCB
217 I accept these opinions as they are very similar and, in my view, accord with the evidence – in particular, the complaints made by the plaintiff.
218 Dr Michael Lucas, an occupational physician, examined the plaintiff on two occasions, the last being 22 October 2019. In his last report dated 22 October 2019, he stated, when queried as to the diagnosis of the plaintiff, that –
“Considered diagnosis is right shoulder post indicated surgeries. A cervical contributory component of significance to indicated symptom concerns has not been excluded and may reasonably be considered.”[79]
[79]See report dated 26 October 2019 at page 214 JCB
219 Later in his report, Dr Lucas goes on to state:
“On the basis of current review in my opinion indications for restricting Ms Taylor from normalising her activity participations including normalising her home or work presence, undertaking usual home or work duties maintaining appropriate spine care awareness and manual handling awareness may reasonably be viewed as limited.”[80]
[80]See report dated 26 October 2019 at page 214 JCB
220 The latter opinion, in particular, is difficult to comprehend but to the extent that it differs with the opinions I have already referred to, I reject such opinion as not consistent with the evidence.
221 I should also point out that I am satisfied that the plaintiff has suffered a mental injury and the nature of that injury has been diagnosed as an Adjustment Disorder with Generalised Anxiety and Depression by Ms Bianca Reisman, the treating psychologist of the plaintiff.[81]
[81]See report of Ms Reisman dated 1 July 2020: exhibit 3 at page 260 JCB
222 It is to be noted that the medico-legal psychiatrist, Professor Nick Paoletti, who examined the plaintiff on 25 May 2018 and 15 May 2020, and was of the opinion on both occasions that the plaintiff primarily suffered from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood (but also some reported Relationship Distress With Spouse).
223 Further, the psychiatrist, Dr Michael Duke, who examined the plaintiff on 21 March 2017, made a similar diagnosis of secondary Adjustment Disorder with Mixed Anxiety and Depressed Mood. As indeed did the psychiatrist, Dr Arunava Das, who examined the plaintiff on 25 March 2020.
224 Each of those doctors who made a diagnosis of an Adjustment Disorder with Anxiety and Depressed Mood based such a diagnosis, in part, on that the plaintiff was experiencing pain and limitations through her shoulder injury which gave rise to the “secondary” or “reactive” psychological condition.
225 In the circumstances of this matter, I have little difficulty in determining that there is a substantial organic basis to the injury relied on by the plaintiff under paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act.[82]
[82]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraph [21]-[22]; Fokas v Staff Australia Pty Ltd [2013] VSCA 230 at paragraph [5]
226 Perhaps, with the exception of Dr Lucas, all doctors considered the plaintiff unfit for her pre-injury duties which, obviously enough, required good use of the right arm and shoulder in manoeuvring and assisting patients of various mental and physical capacities.
227 The issue then becomes whether the plaintiff has any capacity for “suitable employment”. Such concept is defined in s3 of the Act to mean:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.”
228 I also to the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[83] which was an appeal by a worker following a dismissal by the trial judge of his application for leave to commence proceedings and recover pecuniary loss damages. Factual issues raised at the first instance involved “suitable employment” and permanency of loss of earning capacity. The worker was successful in the appeal and the matter was ultimately remitted to the County Court for rehearing. The definition of “suitable employment” was not precisely the same as now contained in the Act but it has relevance to this proceeding.
[83]Op Cit
229 In talking about “suitable employment”, the Court of Appeal stated:
“… Rather, in the particular circumstances of this case, it was incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do[84] on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after a pain management program and/or a drug treatment program and/or the undertaking of vocational education … .”
(My emphasis.)
[84]“We have used the expression ‘be able to do’ (as distinct from, say, ‘be able to get’) advisedly. During the oral hearing, the Court raised with senior counsel for the respondent (at Transcript 52-53) whether ‘employability’ was relevant, having regard to what was said in Barwon Spinners, especially at (2005) 14 VR 622, 652 [74]. Senior counsel’s response, in substance, was that the test was one of physical capacity, not employability: Transcript 53. In his reply, senior counsel for the applicant mentioned ‘employability’ in passing (Transcript 59), but did not develop an argument against, or otherwise take issue with, the respondent’s position in that respect. Since the hearing, this Court (Ashley and Kaye JJA, Osborn JA agreeing) has decided Richter v Driscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have ‘no current work capacity’ (as defined), a statutory concept that involved the same definition of ‘suitable employment’ as applied in the present case. In Richter v Driscoll, at [106], their Honours held that the definition of ‘suitable employment’ was such that the medical panel dealing with the matter in that case was ‘required to consider whether the entirety of the applicant’s relevant personal circumstances — that is, her injury caused incapacity and other relevant personal circumstances which we have discussed — meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell’. Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of ‘suitable employment’ in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.”
230 I also refer to the Court of Appeal decision of Richter v Driscoll[85] which involved the concept of “suitable employment” in a statutory benefits matter. This issue was commented on in Harris.[86]
[85][2016] VSCA 142
[86]Op cit
231 Obviously enough, the concept of employability or “merchantability” broadens the concept of what is “suitable employment”. Although the decision of Richter v Driscoll[87] dealt with statutory benefits, whereas Harris[88] was dealing with “suitable employment” as used in serious injury applications, there would appear to be no good reason why the same definition constituting “suitable employment” should be interpreted in different ways. However, the definition of “suitable employment” makes clear that it refers to employment in work in which the worker is “currently suited”, having regard to a number of matters, and in particular, the worker’s education, skills and work experience.
[87]Op cit
[88]Op cit
232 After a consideration of all of the evidence, I am of the opinion that the plaintiff is not fit for suitable employment and is incapable of performing work on a regular and consistent basis.
233 I have come to this conclusion for the following reasons:
(a) Mr Chehata (the orthopaedic surgeon), Dr Slesenger (the occupational physician) and Dr Blombery (the pain management expert) were of the opinion that the plaintiff had no capacity to perform any form of employment;[89]
[89]See Mr Chehata at page 113 JCB; Dr Slesenger at page 144 JCB, and Dr Blombery at page 106 JCB
(b) Although the plaintiff did return to work in late May 2015 on a return to work plan performing modified light duties, such work essentially consisted of socialising with clients, doing meal preparation and helping clients attend appointments. She was performing such work as a “buddy” to the principal carer. In this respect, she did re-attend her previous client “Jessica” and attempted to increase her hours to undertake extra duties within her restrictions;
The plaintiff gave evidence that she gradually increased her hours of work but struggled to continue at work because of ongoing soreness, episodes of unpredictable, often severe pain, and loss of strength in her right arm and shoulder;
After undergoing surgery on 29 March 2016, the plaintiff was offered shifts assisting two ladies with multiple sclerosis. These shifts were created by the defendant specifically to try and accommodate her suitable duties. The plaintiff would play Scrabble with one of the women, and with the other she would help with emails, prepare frozen meals for lunch and watch television together. Evidence was given that the costs of the plaintiff’s involvement were borne by the defendant rather than the client. Although clearly enough the plaintiff wanted to return to work, it would appear that even these duties were beyond her. The defendant terminated the employment of the plaintiff on 7 February 2020. It is hard to imagine that the defendant would have maintained the “buddy-type” duties into the foreseeable future. The plaintiff described her role as a “one off” and one view of the situation is that such work was created for the plaintiff to meet the statutory requirements of the employer under the Act. I make no finding on that issue but merely assert such duties were beyond the plaintiff as time went on;
(c) During the course of the cross-examination, other than a reference to the previous employment of the plaintiff working in a pharmacy serving on a photographic counter, there was no direct suggestion that the plaintiff could do a particular job. Although there was cross-examination whereby it was suggested to the doctor that one or more of the plaintiff’s general practitioners and Mr Chehata, at his first examination, talked about alternative work maybe in the caring area, no jobs have been put to the plaintiff.
234 I refer to the decision of Bryan Philip De Bono v Victorian WorkCover Authority,[90] which involved an appeal by a worker against a decision in the County Court[91] whereby he was granted leave to issues proceedings for “pain and suffering” damages but denied leave to claim pecuniary loss damages.
[90][2019] VSCA 85
[91][2019] VCC 1342
235 Much of the case turned on the analysis and application of those provisions relevant to pecuniary loss set out in s134AB of the Accident Compensation Act 1985. Of course, many of those particular provisions have been repeated in the Act under which this application is brought and the comments made by the Court of Appeal are apposite.
236 In particular, the Court of Appeal held that in order to succeed in an application for leave to commence a proceeding claiming pecuniary loss damages, an applicant had to establish that:
(a) his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being at least very considerable;[92] and
[92]See the equivalent s325(2)(b) and s325(2)(c) of the Act
(b) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s134AB(38)(f);[93] and
(c) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[94]
[93]See s325(2)(f) of the Act
[94]See s325(2)(e)(ii) of the Act
237 I am satisfied that the plaintiff has discharged each of these requirements and is entitled to a finding that she may have leave to bring common law proceedings for pecuniary loss damages in respect to the back injury suffered by her during the course of her employment – that being an organic injury to her back.
238 I briefly refer to s325(2)(g) of the Act, which states:
“(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
239 Such Section is in the same terms of s134AB(38)(g) of the Accident Compensation Act 1984 (as amended). As pointed out by the Court of Appeal in De Bono v Victorian WorkCover Authority,[95] in attempting to describe the way in which such paragraph operates, is not without difficulty. The Court of Appeal did note that the Section does not, however, provide that unless a worker has taken the steps referred to, then he or she has “not established the loss of earning capacity required by s134AB(38)(b) of the Act”.
[95](Op cit) at paragraph [35]
240 I consider that paragraph seems to only have relevance to when issues of suitable employment are raised. In circumstances, such as this, where the Court has determined the plaintiff has no capacity to perform suitable employment, it would seemingly have no operation.
241 If I be wrong about that, it is to be noted that the provision is to make “reasonable” attempts at rehabilitation and retraining. In the circumstances of this matter, I note:
(a) The reasonableness of the plaintiff must be, in part, measured of what her state of mind has been over the last year or so. In this respect, I refer to the last piece of cross-examination by Mr Middleton:
MR MIDDLETON:
Q:“If I could. If the job was within your physical capabilities, if there was a job found, would you be prepared to try it, to try and overcome some of your mental health inhibitions?---
A:Look, I – it’s a hard question, but I’d have to say, well, no, you know, I don’t - as I said, I don’t have the self-confidence any more, I don’t - I have that self doubt. I used to have the can do - a can do attitude, whereas nowadays I’m like, well, you know, got to think and plan before I do things, and it’s – it’s not easy to get that job done.
And you know, to put it bluntly, I couldn't be reliable.”[96]
(b) Under re-examination, the plaintiff confirmed that she attended Nabenet, a rehabilitation agent, and throughout the period of time she was involved with that organisation, no job was offered to her or indeed, did she obtain any job interviews.
[96]T43, L6-16
242 I am of the view that taking all of the evidence into account, the plaintiff has acted reasonably within the meaning of s325(2)(g) of the Act and that provision should in no way impact on her entitlement to seek leave for pecuniary loss damages (if it be relevant to my fundamental finding that the plaintiff is effectively totally incapacitated for work).
243 As stated earlier in these Reasons, a worker who satisfies the loss of earning capacity requirements under s325 of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering” damages and “pecuniary loss” damages.[97]
[97]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle (op cit) at paragraphs [60]-[64]; Acir v Frosster Pty Ltd (op cit)
244 Accordingly, I grant leave to the plaintiff pursuant to s335(2)(d) of the Act to bring common law proceedings for pain and suffering damages and pecuniary loss damages for a right shoulder injury arising out of, or in the course of her employment with the defendant.
245 Pursuant to the principles enunciated in Georgopoulos v Silaforts Painting Pty Ltd,[98] there is no need to determine the serious injury application under paragraph (c) of the definition of “serious injury”.
[98][2012] VSCA 179
246 I will hear the parties on the question of costs.
ANNEXURE “A”
1 The plaintiff tendered the following material:
EXHIBIT 1
– affidavit of the plaintiff affirmed on 10 July 2019
–further affidavit of the plaintiff affirmed on 21 July 2020
–affidavit of the daughter of the plaintiff affirmed on 21 July 2020
(Such material is found at pages 30-47 of the Joint Court Book (“JCB”))
–affidavit of Ms Jessica Taylor (the daughter of the plaintiff) affirmed on 21 July 2020
(See pages 251-254 JCB).
EXHIBIT 2
– ultrasound of the right shoulder dated 27 February 2015
–ultra-sound guided injection of the right shoulder dated 8 April 2015
–MRI scan of the right shoulder dated 2 July 2015
–ultrasound-guided injection of the right AC joint dated 9 July 2015
–CT scan of the right shoulder dated 25 September 2015
–X-ray of the right shoulder dated 25 July 2016
–MRI scan of the right shoulder and MRI scan of the cervical spine dated 24 January 2017
–X-ray and ultrasound of the left shoulder dated 21 October 2019
(All such material is found at pages 48-55 JCB).
EXHIBIT 3
–Reports of the orthopaedic surgeon, Mr Soong Chua, dated 7 July 2015, 29 March 2016, 11 January 2017, 20 December 2017, 26 November 2018 and 5 December 2018
–Report of Dr Rajvir Singh dated 14 March 2017
–Report of Dr Anne Peterson dated 24 April 2017
–Report of Dr Angela Hawkins dated 31 January 2019
–Report of Dr Trisha Cunningham dated 30 June 2020
–Report of Ms Bianca Reisman dated 1 July 2020
(All such reports found at pages 58-70 JCB and 260-262 JCB).
EXHIBIT 4
–Medico-legal reports of the specialist occupational physician, Dr Joseph Slesenger, dated 17 May 2018 and 11 June 2020
–Medico-legal reports of the psychiatrist, Professor Nick Paoletti, dated 25 May 2018 and 15 May 2020
–Medico-legal reports of the upper limb orthopaedic surgeon, Dr Ash Chehata, dated 11 September 2018 and 2 May 2020
–Medico-legal report of the pain specialist/cardiologist, Dr Peter Blombery, dated 19 November 2019
(All such reports found at pages 71-145 JCB).
EXHIBIT 5
–Report of the human resources consultant, Ms Mary Oliver, from Flexi Personnel dated 26 June 2020
(See pages 146-162 JCB).
EXHIBIT 6
–Taxation summary
(See page 250 JCB).
2 The defendant tendered the following material:
EXHIBIT A
– Medico-legal reports of the occupational physician, Dr Michael Lucas, dated 18 June 2015, 26 October 2019 and 21 July 2020
–Medico-legal reports of the psychiatrist, Dr Michael Duke, dated 24 March 2017
–Medico-legal report of the orthopaedic surgeon, Dr Gale Curtis, dated 29 March 2017
–Medico-legal report of the orthopaedic surgeon, Mr Siva Chandrasekaran, dated 26 February 2019
–Medico-legal report of the psychiatrist, Dr Arunava Das, dated 1 April 2020.
(Such material found at pages 163-224 and pages 258-259 JCB).
EXHIBIT B
– Medical notes from the Vineyard Medical Centre.
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