Tchaghlassian v Southern Health
[2014] VCC 2022
•4 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00194
| VERA TCHAGHLASSIAN | Plaintiff |
| v | |
| SOUTHERN HEALTH | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 November 2014 | |
DATE OF JUDGMENT: | 4 December 2014 | |
CASE MAY BE CITED AS: | Tchaghlassian v Southern Health | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2022 | |
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REASONS FOR JUDGMENT
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the right shoulder – Chronic Pain Syndrome – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Peak Engineering & Anor v McKenzie [2014] VSCA 6; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on 21 June 2008 (“the first date”) and 21 March 2009 (“the second date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the right shoulder.
5 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”.
6 The plaintiff also brought an application pursuant to clause (c) for a severe mental impairment.
7 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive; namely, that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
8 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[3]Supra
9 A Chronic Pain Syndrome can result in impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]
[4][2005] VSCA 227
10 Apart from being a “serious injury”, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
11 The impairment of the body function must be permanent.
12 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
13 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
18 The plaintiff relied upon three affidavits and gave viva voce evidence. She also relied on an affidavit sworn by her husband, Berge, on 13 November 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
19 The plaintiff is presently aged sixty-one, having been born in August 1953 in Egypt. She came to Australia as an eleven year old. She left school after Year 10.
20 The plaintiff then worked as a nursing aide and worked at Telecom for about ten years. She married and had one child during that time. In 1981, the plaintiff met her second husband and they married in 1984. He had two children and they had a child together. The plaintiff then became a full-time mother.
21 The plaintiff and her second husband operated a convenience store for over seven years. During that time, they were heavily involved in fundraising for bone marrow research. When the business was sold, the plaintiff began working for Smokemart, using her retail experience, and became a store manager.
22 The plaintiff always had a passion to undertake nursing and, having won a prize in 1997, she undertook a PCA course and worked at Banyan Tree Nursing Home. At that time, she upgraded her training to a Division 2 Nurse. She worked three days a week and undertook further study two days a week until graduating with her qualification in 2000.
23 The plaintiff then did a lot of agency work until receiving a permanent job at Valley Private Hospital in 2000. From there, she obtained a position at Dandenong Hospital. When Monash Medical Centre Clayton opened a new Ward 33 South, she started there in early 2002.
24 Initially, the plaintiff worked full time on night duty but by 2008, changed to working days. She loved work and was the breadwinner in the house.
25 Prior to the first date, the plaintiff’s taxation returns indicated the following earnings:
Year Amount 2007 $50,560 2008 $49,660 2009 $48,674
26 The plaintiff was also able to salary package a portion of her earnings.
27 As of 25 November 2009, the plaintiff was earning $1,050.72 a week, or $54,637 per annum.
Previous history
28 Prior to injury whilst working with the defendant, the plaintiff had a past history of depression arising from childhood sexual abuse. She suffered from mood swings in the early 1990s and confided in her general practitioner, Dr Aurora, in this regard, as she was having difficulties with her marital sexual relationship.
29 The plaintiff also saw a general practitioner, Dr Ghobrial, who referred her to psychiatrist, Dr Das, whom the plaintiff saw about half a dozen times to regulate her medication regime.
30 Anti-depressant medication continued from that time and controlled her symptoms well. The plaintiff tried to live a normal life. She lived with the issue and accepted it. She never felt it made any difference to her lifestyle.[7]
[7]Transcript (“T”) 50
31 Because of her childhood experiences, the things that gave the plaintiff happiness were her work and children. She thought of her work as “my happy place”, and it was one of the most important things in her life.
32 The plaintiff denied she had reported suicidal thoughts to Dr Ghobrial on 12 June 2008, some two weeks before the said date. She denied she was put on Stilnox, which she maintained was not prescribed until after the second incident. She also denied there was a discussion at this time about referral to a psychologist.[8]
[8]T51; T86
The first incident
33 The plaintiff injured her right shoulder on the first date whilst getting out of the elevator at work and slipping in a puddle of water, falling backwards, hitting her right shoulder on the frame of the elevator door before landing on her buttocks (“the first incident”).
34 Liability was accepted for the first incident.
35 The plaintiff returned to work in October 2008, being cleared for normal duties which she continued until the second date.[9]
[9]T54
36 The plaintiff saw her usual general practitioner, Dr Ghobrial, shortly thereafter, and he sent her for a right shoulder x-ray and ultrasound on 3 July 2008. The plaintiff was advised that the ultrasound showed a tear in the tendon of the right shoulder.
37 The plaintiff was referred for physiotherapy. It was not of any great assistance, and her general practitioner referred her to an orthopaedic surgeon, Mr Lade.
38 In August 2008, Mr Lade recommended an injection of anaesthetic and steroid into the plaintiff’s shoulder. That treatment provided some benefit.
39 The plaintiff was keen to go back to work and Mr Lade told her that if she felt ready, she was able to return to work, so long as she avoided lifting heavy loads or overhead work.
40 The plaintiff next saw Mr Lade in September 2008. The first steroid injection was still effective in reducing her pain. He informed her that she may require further injections over the next nine months or so if the pain continued or recurred.
41 The plaintiff could not recall Dr Ghobrial carrying out a mental health assessment in October 2008.[10] The plaintiff’s mother died in November 2008 after a three-year illness, during which time the plaintiff and her sisters cared for her.
[10]T85
42 Within a week of her mother’s death, the plaintiff’s husband underwent triple bypass surgery. Soon thereafter, a family friend died in an accident whilst driving the plaintiff’s car. The friend’s death affected the plaintiff’s husband greatly, more than it affected her.[11] She could not recall a mental health check in February 2009.[12]
[11]T52
[12]T86
43 Although by March 2009 the plaintiff had no formal restrictions and was managing her duties with respect to her right shoulder, she continued to be careful when lifting or reaching overhead. She needed to look after her shoulder to protect her career.[13]
[13]T54
The second incident
44 The plaintiff sustained injuries as a result of an incident on the second date. Her foot became entangled in a catheter hose and she lost her balance and fell forward, falling flat on the floor on her left knee and also jarring her wrists and both shoulders. She also struck her abdomen as she landed and suffered extensive bruising in the fall (“the second incident”).
45 The plaintiff’s immediate concern was her knee, which was investigated in the Emergency Department. She was discharged with painkillers and crutches and certified off work. However, her shoulder problem became more apparent when she returned to work in April.[14]
[14]T56
46 The plaintiff’s claim in respect of the second incident was accepted in May 2009. She received payment until September 2009. The original Claim Form detailed left knee, hip and abdomen injury. She completed a further Claim Form on 9 September 2009, also identifying wrist, shoulder and neck injuries. Liability was rejected for this claim on the basis that her symptoms were psychological and unrelated to work. She disputed this rejection.
47 The plaintiff returned to her general practitioner for further investigations and he arranged an x-ray and ultrasound. The plaintiff went back to Mr Lade as she had a constant ache in her shoulders going into her neck. Her right shoulder was more painful than the left and the pain extended down her arm to her wrist. She was again having difficulty sleeping and had greater trouble lifting her arms from the time of the second incident.
48 The plaintiff did not injure her left shoulder as such in the second incident. She agreed she had complained of aching in both shoulders since the incident but denied persistent bilateral shoulder pain.[15] She also had problems with her wrists, left knee and left hip since the second incident. Any neck pain was associated with her shoulder problem.[16]
[15]T71
[16]T73
49 Against the doctor’s advice, the plaintiff tried to work in Easter 2009 but she could not manage because her shoulders became sore and her wrist became more painful. The plaintiff was then off work again until June 2009 and she worked until September 2009 before returning to work again in December 2009 to May 2010. During those periods, the plaintiff was certified fit for alternative duties’ work, three days per week, four hours per day, on light duties.[17] During that time, she undertook a medication course.
[17]T33
50 The plaintiff deposed that since that attempt, she had not returned to work. She explained in her viva voce evidence that she had in fact had periods of light duties until she ceased work in May 2010, when such duties were no longer available. The plaintiff thought thereafter, she was provided with total incapacity certificates until shown certificates for alternate duties were provided after she ceased work.[18]
[18]T89-90
51 The plaintiff’s employment was formally terminated by letter on 18 March 2011.[19] She had wanted to work until over sixty-five.[20] The insurer refused to pay for any rehabilitation and the plaintiff was told to go home and recuperate.[21]
[19]T31
[20]T58
[21]T57
52 An injection of cortisone in the right shoulder in May 2009 did not give any long-term relief.
53 In September 2009, the plaintiff started to see Dr McCauley as her general practitioner. She returned to Mr Lade in November 2009, by which time she was quite distressed by her ongoing shoulder pain. He organised an MRI scan and then recommended a further cortisone injection, which the plaintiff had in December 2009.
54 In January 2010, the plaintiff was referred to Dr Feletar, rheumatologist, who investigated ongoing wrist pain from the second incident. She examined both upper limbs, including the shoulders. An MRI scan of the right wrist was arranged and Dr Feletar recommended that the plaintiff continue conservative treatment.
55 Dr McCauley referred the plaintiff to Mr Deacon for a second opinion regarding her shoulder. She saw him in February 2010, when he advised that she may benefit from surgery but he was no longer operating and she would need to be referred to someone else.
56 The plaintiff had not pursued this option as WorkCover had disputed liability for ongoing shoulder treatment. In any event, complications from later hernia surgery meant that the plaintiff would be unlikely to be in a position to pursue shoulder surgery as of September 2012, when she swore her first affidavit.
Abdominal injury
57 The plaintiff has had weight problems for many years. In 1994, she underwent gastric stapling.[22]
[22]T42
58 Many years prior to her work injury, the plaintiff had hernia surgery performed by Mr Smith. She also had a duodenal switch inserted in the early 1990s which gave her some ongoing side effects, mostly bowel incontinence.
59 As a result, the plaintiff attended Mr Skidmore in March 2008. She took annual leave to undergo surgery to reverse the duodenal switch and repair an incisional hernia on 25 July 2008. Following that, Mr Skidmore advised the plaintiff that there was a lot of scar tissue present and further surgery would be complicated.
60 At the time of the second incident, the plaintiff felt a ripping sensation in her abdomen and landed flat on it. She was bruised and developed a small lump near her navel and pain in her groin. She ignored it initially and then thought it was scar tissue that Mr Skidmore had told her about. She was using medication for bowel difficulties and resisted returning to the doctor.
61 The plaintiff saw a bariatric physician to help with weight loss after the abdominal surgery and he advised that it may be due to irritable bowel syndrome. She returned to Mr Smith, who sent her to Mr Skidmore, who advised the plaintiff that she was suffering from a recurrent incisional hernia.[23]
[23]T26
62 Mr Skidmore confirmed this on CT scan and informed the plaintiff that it was a very large hernia, with most of the previous repair having come away. A corset that was suggested was ineffective and the plaintiff required further surgery.
63 The plaintiff did not seek WorkCover involvement then because, at that time, it had sent rejections in relation to her shoulder and knee and had been uncooperative. She did not realise that, despite this, WorkCover had accepted her abdominal injury claim.
64 Accordingly, the plaintiff arranged the repair privately and had surgery for a recurrent incisional hernia and also underwent revisional surgery with a gastric bypass on 11 March 2011.
65 There were significant complications in the course of this surgery which required an ICU admission for a lengthy period. The plaintiff developed an infection and respiratory complications and was sent back for emergency surgery on 14 and 23 March 2011.
66 Following complications, the plaintiff remained in an induced coma for 29 days and in ICU for 33 days. She remained in hospital for three months, returning home in May 2011.
67 Following that surgery, the plaintiff acknowledged there was some improvement. She was not fit but she was keen to return to work, even for one shift.[24]
[24]T93
68 Thereafter, the plaintiff has had further abdominal surgery, as she sustained a further recurrent hernia. That surgery was performed on 19 May 2012, when she was sufficiently strong enough to undergo it. It was performed by Mr Trotter, a plastic surgeon, with Mr Skidmore’s assistance.
69 As at September 2012, the surgery had been successful. The plaintiff had been advised that if she suffered a further recurrence, then she may have to undergo a repair using pigskin. She had a great fear that the hernia would come out.
70 In terms of her right shoulder, the plaintiff was then limited in doing anything repetitive or performing any sustained lifting. She then had two hours of home help per week and paid for an additional hour. The plaintiff also paid a housekeeper separately to come in and tend the flowerbed, and her son did the mowing.
71 The plaintiff had great difficulty sleeping and getting to sleep without medication. She slept on her right side naturally but had difficulty as she could not get comfortable. She took two Panadol and a Temazepam each night to help her get to sleep and could not sleep without it.
72 The plaintiff used to rely on Digesic. She was limited with the painkillers she could tolerate as she had a sensitivity to codeine. She could not take Tramadol because of her antidepressant medication, and she had recently been advised that Digesic had been taken off the market and she now relied on Panamax or Panadol Osteo.
73 The plaintiff’s right shoulder pain was like a drilling into her shoulder coming from the top of it into the muscles of the biceps and upper arm. It flared up with cooking, stirring or repetitive activity.
74 The plaintiff was then continuing physiotherapy when she could afford it and was trying to attend monthly. She had five sessions through Medicare and otherwise paid for the sessions herself. She attended generally after a flare up when she had tended to do too much.
75 The plaintiff is right handed and any repetitive activities with her right arm caused difficulty – even writing for too long, using a laptop for too long or holding a steering wheel.
76 The plaintiff was then wearing a soft plastic belt from her bust to her hip to cover her abdomen. She was supposed to wear the belt if she did anything strenuous. It was most uncomfortable, and when she could avoid wearing it, she used a body suit or girdle. She wore the belt at least five days a week for part of each day. The belt caused a skin reaction with irritation rashes which she controlled with white vinegar.
77 The plaintiff was restricted in lifting because of her shoulder and hernia. As a result, she could not do the shopping by herself.
78 The plaintiff’s husband has been in receipt of a Carer’s Pension since she came home from the abdominal surgery. Prior to that, since 2009, they had been separated as a result of the stress of her injuries. However, since his return to the matrimonial home, the plaintiff’s husband slept in the spare room and was standing by her and had become her carer. He did most of the cooking. She was still able to drive locally but her ability to do the housework had significantly declined.[25]
[25]T82
79 The plaintiff saw a psychologist, which did assist her significantly. However, since October 2011, she had not been able to afford to continue to see her.
80 The plaintiff was then taking three Cymbalta capsules a day.
81 The plaintiff felt devastated by her inability to work. Without work, she stayed in bed as long as she could to make the day shorter, and at night, she was glad that another day had gone.
82 The plaintiff loved her job and was good at it and felt she could have remained an asset to her employer if she was kept in work in some suitable light capacity. She felt badly rejected that a place could not be found for her when others had alternative duties proposed for them.
83 In 2010, the plaintiff was looking forward to alternative duties, perhaps in a doctor’s clinic where she could do dressings and immunisations. Many of those sorts of jobs required pathology training, which she did not have. That course was employer sponsored and quite expensive and she could not afford it without the support of WorkCover.
84 The plaintiff has applied for two jobs in the medical field since ceasing work with the defendant. She applied for work as a practise nurse at a clinic but the jobs had already been taken. She had some but not all of the criteria for these jobs, not having any training in pathology.
85 Since the 2011 abdominal surgery, the plaintiff has not been able to apply for any work.[26]
[26]T59
86 The plaintiff did not think she could do any of the three jobs suggested by Work Focus on either a physical (shoulder and hands) or a psychological basis.
87 As she tearfully explained at the end of cross-examination, the plaintiff had the skill set described in that report prior to her surgical complications in 2011. She had only basic computer skills.[27] She explained that:
[27]T42
A:“… This constant pain that I endure as I have said in the past that it’s a constant pain that is there, that it radiates from my shoulder down to my bicep, to my wrist and my thumb and so can I explain that any better than that? I don’t know. So I’m not saying that I need to lift things over my head only. My pain is constant from - I can - I am sitting here and I am in pain. I have pain going from my left shoulder - my right shoulder down my bicep to my wrist, to my thumb constantly. So if I have to sit at a computer desk or try to do paperwork and these questions that you are asking me, ma'am, is prior to my breakdown, now I don’t only have this disability, I also have a - a disability of being able to function for my - any kind of work that - - -
I wonder if we might take a break, Your Honour?---Can you understand that?---”
HER HONOUR:
A:“Yes, so when you’re talking - just so - you know, I know you’re upset and I don’t want to make you more upset but when you're talking about since your breakdown and you're saying - what is the mental and the emotional side of things?---
Q:Well - - - now, about doing these jobs?---
A:There was a time where I would wake up in the morning and just wish that I would be able for someone to give me a job.
Q:Yes?---
A:Where now I wake up, I can’t even wake up before
11 o’clock in the morning so my day is already gone and I have a cup of tea and I have my medications and then I will slowly try to make something for me to eat - my breakfast and so on, so emotionally I am no longer able to do what - what I was able to say that I used to be able to do.
Q:Yes?---
A:Now it’s not just my pain it’s my whole - I don’t even know how to be happy any more. I don’t know how I used - my friends used to call me ‘Giggling Gertie’ as a child - I don’t even know - I don't remember when I had a last chuckle or something that would make me laugh and be happy. There’s nothing – there’s nothing left. I feel like they wanted to break me and they have. For five years I have begged for some support or treatment from the insurer and Southern Health and all I got was - when I rang Allianz to find out why they didn’t want to pay for my rehab, you know what they told me? ‘You are a liability’. This is back in 2009 in September when I needed to know why they stopped my payment where I was - at the time I was waiting. Dr Ghobrial had organised for me to go to rehab and rehab - Epworth Rehab was waiting for Allianz to approve it so I can have some rehab done to my shoulder and they just stopped and rehab said to me, ‘We cannot help you because we are not a private rehab. We have to wait for the insurer’. And when I rang that’s what they said to me, that ‘You can ring and speak to someone else’. So when I did call I’ve just got told that I was a liability.
So how do you think I felt at the age of 56 at the time to have someone to say that your use by date is over? I was planning to work way over 65 ma’am. I lost - I did my surgery because I wanted to make sure that I didn't - my weight wasn’t going to be a problem. My health was going to be no problem. I knew that I had high blood pressure and I knew that if I stayed fit and - and slim that it would not restrict me from having all this. So now they’re telling me that they’ve just - they broke me - they broke me - I don’t have anything. I - I don’t know what I can do. I don’t even know how to help myself, let alone help others now. That’s all I’ve got to say.”[28]
[28]T110-112
88 Work Focus did not discuss with the plaintiff any of the jobs they suggested.[29]
[29]T113
89 In her affidavit of 1 November 2013, the plaintiff detailed her hernia problem which required surgery to repair incisional hernias by Mr Skidmore in 2010.
90 The plaintiff initially tried wearing the corset to cover the swelling but it did not work and she had difficulty working whilst wearing the corset.
91 The plaintiff had repair surgery in March 2011 at Cabrini Hospital, following which the mesh detached from the abdominal wall, causing an infection.
92 The plaintiff told Mr Skidmore that she could not work as a nurse for at least six to twelve months after that operation as it would take her a long time to recover. The plaintiff confirmed the dreadful complications following that surgery and it was thought, at that stage, that she would not survive.
93 The plaintiff had been told that she would never go back to clinical nursing and that she was at risk of recurrence of the hernia associated with lifting. That really upset her as she loved her job and obtained a lot of satisfaction out of nursing. She had also been told that it was likely she would require further surgery. That in fact happened in May 2012, when a repair was carried out by Mr Trotter.
94 After the multiple hospital admissions, the plaintiff became quite depressed and was receiving treatment from her general practitioner.
95 In June 2012, the plaintiff developed vomiting and was admitted to Linacre Private Hospital for about five days. It was initially thought she had a small bowel obstruction but that was ruled out and later, left-sided diverted colitis was diagnosed.
96 The plaintiff has a massive scar across her stomach of about 14 centimetres length. She is missing her belly button as a consequence of the scarring. It is quite unsightly and she was very self-conscious. The scar is itchy and the plaintiff was restricted in the clothing that she could wear.
97 The plaintiff has also had memory problems since admission to ICU. She was very forgetful. She had retained a very short-term memory. She felt she had a limited capacity to learn new tasks and did not have the resilience she had prior to the injuries and the ICU admission.
98 The plaintiff’s general practitioner thought the problems were due to deconditioning of her memory associated with a hypoxic brain injury which occurred as a result of her ICU admission.
99 The plaintiff had also been recently hospitalised for a suicide attempt. She felt she could cope no longer and had had enough. She took an overdose of sixteen pills and wrote a suicide note to her family. This attempt was due to a combination of factors including pain, the way her life has changed and the loss of the job that she loved.
100 The plaintiff did not know whether the primary issue on this admission was a fallout from her childhood abuse. It had always been there and she had to live with it.[30] It was not an issue, as noted by the Hospital, that her son had moved out the previous week. He had moved out a year ago. She agreed she was upset at the knowledge she would not work again and that she had problems with her short-term memory.
[30]T64
101 The plaintiff agreed comments made to her by her sister were a trigger for the overdose. She denied having planned her suicide for years. The only conversation she had with her children about her death was that she did not want to die in a nursing home as she knew what that would be like, having worked in them. She also denied having problems gambling on bingo.[31]
[31]T66
102 The plaintiff was hospitalised at Delmont from 11 August to 7 September 2013 with Major Depression. She was treated by Dr Richards. She was suicidal and also considered cutting her wrists.
103 As of November 2013, the plaintiff continued to be treated regularly by Dr Richards and her general practitioner. She took Cymbalta and Mirtazapine, and also Avanza.
104 The plaintiff had difficulty using her upper limbs and she had problems with coordination and tended to drop objects and had lost a lot of strength. She had shoulder pain that kept her awake at night and she had to be careful of the position in which she slept.
105 The plaintiff’s right shoulder pain was severe, travelling from her bicep to her right wrist and thumb. The pain affected her ability to undertake domestic chores. She also suffered pain in her left shoulder, which moved down her wrist into the palm of her left hand. The bilateral shoulder pain made her constantly wake up during the night in pain and she had severe trouble sleeping.
106 The plaintiff also had knee pain and had difficulty bending and squatting.
107 The plaintiff felt very weak all the time and had no energy. She got tired and was forgetful. She had trouble sleeping at night and falling asleep and felt exhausted all the time. Her general practitioner had advised her that was all an effect of the original ICU admission and she may never recover from it. She took Avanza to help her sleep at night.
108 The plaintiff was then separated but living under the same roof as her husband, her Carer. He assisted her through all of this and continued to assist her. He did the bulk of the domestic chores. She felt unable to complete them as her capacity to clean and cook had been reduced greatly.
109 The plaintiff had a very limited social life as she no longer had the energy to go out. She was quite active in this regard prior to her injury.
110 In her further affidavit sworn on 17 November 2014, the plaintiff confirmed that she still suffers pain, limitation and restriction of movements as described, with the pain in her right arm also going into the bottom of her neck.
111 The plaintiff continues to see Dr McCauley. On 20 February 2014, he arranged a further ultrasound of the shoulder, which she understood revealed a full thickness tear.
112 Since November 2013, the plaintiff has become more and more depressed about how the injury in the second incident has affected her life. In addition to constant pain, particularly in the right shoulder, the plaintiff has developed feelings of helplessness and guilt about her inability to return to the work she loved and to earn an income.
113 After the first incident, the plaintiff was able to return to normal work after a cortisone injection. However, after the second incident, the pain and limitation of movement in the shoulder caused her difficulties handling patients when she returned to work and, eventually, led to the termination of her employment which caused her to become extremely depressed.
114 The plaintiff kept trying to remain registered as a nurse but has been advised that she will not be able to return to work as a Division 2 Nurse, and she has found this extremely hard to accept, which makes her very depressed.
115 The plaintiff also suffered greatly from a number of surgeries to repair her abdomen and the complications in relation thereto, caused by the injury in the second incident. Whilst in ICU, she felt she was in serious danger of dying.
116 Things got out of control in August 2013. By that time, the plaintiff had become constantly depressed and was also tearful about her situation. She began to have suicidal thoughts.
117 On 10 August 2013, the plaintiff took an overdose of tablets, intending to end it all. She was admitted, initially, to Casey Hospital and sent to Delmont Private Hospital, where she was under the care of Dr Richards and was an inpatient for about four weeks.
118 Dr Richards continued to treat the plaintiff until March 2014, when she advised that because she was employed by the defendant, she could not attend any further to the plaintiff because there might be a conflict.
119 The plaintiff’s general practitioner then referred her to her present treating psychiatrist, Dr Hogan. He currently prescribes Pristiq 75 milligrams in the morning and 150 at night, and Imovane at night.
120 The plaintiff takes Lyrica in the morning and at night. She also takes blood pressure tablets.[32]
[32]T104
121 The plaintiff believes that the surgery to her abdomen has repaired the hernia and she has been advised that there is no longer a protrusion. She is terrified, however, that this will recur if she has another fall and lead to the surgical nightmare she previously had to go through.
122 Because of her previous experience with surgery, the plaintiff is unwilling to undergo right shoulder surgery despite continuing pain and problems.
123 Because she has problems using the right arm away from her body or over her head and cannot perform manual normal activities for a long time, the plaintiff would not be able to assist patients as a nurse. She also believes she would not be able to manage any other employment involving the use of her dominant right hand.
124 As a result of her injuries, the plaintiff has lost a lot of confidence in her ability to return to work. Although she was having treatment for continuing problems related to childhood sexual abuse, she was able to work full time without any difficulty in this regard until the second incident. That, and the subsequent loss of employment, caused the psychiatric problems that she now has.
125 The plaintiff was hospitalised for diverticulitis in 2013. She presently suffers from hypertension and an iron deficiency.[33]
[33]T71
Lay evidence
126 The plaintiff’s husband, Berge, swore an affidavit on 13 November 2013. They have been married for thirty years and have known each other since childhood. They are currently separated but living under the same roof as a sequelae of her injuries. He is her carer.
127 They have a lot in common, having enjoyed charity work, and they owned a milk bar in Ferntree Gully. They raised substantial funds for the marrow donor registry.
128 Nursing was the plaintiff’s passion and it meant so much to her. It was always something that she wanted to do. She has a passion for looking after and helping people and that has always been the case, and that was why they became so involved in the charity work.
129 Prior to her injuries, the plaintiff was active, outgoing and vibrant and loved life. She had a lot of energy, motivation and drive.
130 Mr Tchaghlassian confirmed the complications following abdominal surgery when it was thought the plaintiff would not make it. That was a very stressful time for the family. He was with her continually on rotating shifts.
131 The plaintiff now just falls asleep all the time. When they go out, she just lies down and falls asleep if there is a couch. At dinner, she sits at the table for an hour and then falls asleep.
132 The plaintiff has absolutely no energy or motivation. She is unable to stay awake for more than four hours at a time and falls asleep in the car and in the most bizarre places. This situation is in stark contrast to the vibrant, outgoing person she was prior to injury – someone who had a very positive outlook on life, who seemed to have endless energy.
133 The plaintiff does little at home in terms of cooking and domestic chores and he does it all, in stark contrast to the pre-accident situation.
134 The plaintiff has also become very depressed as a result of her physical limitations and inability to work as a nurse, as that profession meant so much to her.
135 The plaintiff has dreadful scarring across her abdomen and is very self conscious about it.
136 Mr Tchaghlassian could not imagine the plaintiff being able to work in any capacity due to the fatigue and exhaustion she experiences and the amount of sleep she requires.
Investigations
137 The right shoulder ultrasound carried out in July 2008 showed appearances suggestive of a focal tear in the distal supraspinatus tendon.
138 A series of investigations were carried out of both shoulders in April 2009. It was concluded the plaintiff had a bilaterally tender anterior cruciate joint in keeping with osteoarthritic change, tendinosis of the supraspinatus tendon on the right and an impingement syndrome due to a prominent bursa of the left shoulder.
139 There was an ultrasound of the right shoulder on 22 September 2009. It was reported there was an 8-millimetre partial thickness tear demonstrated on the deep surface of the supraspinatus tendon.
Treatment
140 Mr Justin Lade, orthopaedic surgeon, saw the plaintiff in August 2008 on referral from her general practitioner.
141 Mr Lade thought, hopefully, the plaintiff would be able to settle down her symptoms with conservative measures and he was happy for physiotherapy to continue. He thought there may even be a return to light work but she should avoid lifting heavy loads with her right arm, as well as avoiding overhead work until the pain settled down. If there was a degenerative tear, it was only small, and he noted the plaintiff had an excellent range of movement of her shoulder and a negative impingement test.
142 In September 2008, Mr Lade reported to the general practitioner that the plaintiff had responded very well to a combination of corticosteroids and physiotherapy and she now had a full active range of movement and he was happy for her to return to normal duties and he was then discharging her back into her care.
143 In May 2009, Mr Lade noted, unfortunately, the plaintiff had had a further fall. Although her shoulders were not painful initially, they had now begun to ache in a chronic fashion and she was not able to lift her arms above her head.
144 Mr Lade noted some inconsistencies on examination, although there was some tenderness. He injected the plaintiff’s right subacromial space with local anaesthetic and steroid and that got some relief. He thought there were similar findings to a lesser degree on the left. He considered the plaintiff’s injuries were really just soft tissue in nature with an emotional overlay and he was hoping that would all settle down with conservative management.
145 On 11 June 2009, the plaintiff returned with a strong desire to return to work. She still complained of odd aches and pains from her shoulder, past her elbow into her fingers, but Mr Lade could not find significant clinical abnormality. She had a full active range of movement of her shoulder.
146 Mr Lade thought the symptoms were somewhat inconsistent and unpredictable and it would be a good idea for the plaintiff to return to work and have her discharged back into her general practitioner’s care. He could see no clinical reasons why it would not be possible for her to go back to work. He thought her disability was minimal and her prognosis good.
147 The plaintiff returned on 17 November 2009 with ongoing pain, particularly in her right shoulder. She was in tears and completely distressed with the WorkCover process.
148 Mr Lade noted inconsistencies with free shoulder movement during discussion and informal examination animated distress. At that stage, he must concur with Dr Ho’s findings. However, he thought there may still be pathology with underlying emotional overlay so he had arranged an MRI scan of the right shoulder as a definitive investigation.
149 In December 2009, Mr Lade noted the MRI scan did show some organic pathology with subacromial subdeltoid bursitis and moderate anterior cruciate joint arthropathy and although there was evidence on MRI scan of a supraspinatus tendinopathy, there was no definitive tear and he still questioned how much of the symptoms was emotional overlay. He understood the plaintiff had been referred for psychiatric assessment.
150 Mr Lade instigated again an injection of local anaesthetic and steroids to see if it made any difference to the plaintiff’s symptoms. He confirmed the plaintiff had a full active range of movement with appropriate gestures of pain without any guarding. She also complained of anterolateral knee pain but could squat fully. She had a good range of movement with minimal patelofemoral irritability. Hence, management of this was expectant despite which the plaintiff stated her pain had certainly been much better lately.
151 Mr Skidmore, general surgeon – gastro intestinal and surgical oncology, performed a reversal of a duodenal switch, division of adhesions, appendectomy and repair of incisional hernia with mesh on 25 July 2008.
152 The plaintiff was referred to Mr Skidmore again by Dr McCauley in December 2010 when she presented with a large incisional hernia and she had had some slow weight gain.
153 Mr Skidmore advised the plaintiff that if he was going to repair her hernia, he would prefer to perform any bariatric surgery at the same time.
154 Mr Skidmore noted the problem with large incisional hernias is they are always prone to recurrence. He noted the duodenal switch had been a problem in regard to weight regain.
155 On 11 March 2011, surgery was performed involving a laparotomy, repair of large para-oesophageal hernia using mesh, partial gastrectomy conversion to roux-en-Y gastric bypass, division of intraperitoneal adhesions, more bowel resection and onlay repair of incisional hernia.
156 On 14 March 2011, there was a right thoracotomy, pleural decortication washout, exploration of thoracic oesophagus, insertion of chest drains, on-table gastroscopy, laparotomy, removal of mesh, major peritoneal washout, debridement of fibrin, insertion of drains, gastroscopy and insertion of T tube.
157 During the plaintiff’s ICU period, Mr Skidmore reported to Dr McCauley. There was a further procedure on 23 March 2011 when there was a re-look laparotomy, peritoneal washout, debridement of fibrin, division of adhesions, debridement of abdominal wall, gastrojejunostomy and insertion of T tube via gastronomy.
158 As of June 2011, Mr Skidmore thought the plaintiff had suffered a fairly dramatic postoperative course and certainly, she was not then ready to return to work. With her abdominal wall, he did not know how much she would be able to do in the future and expected that certainly heavy lifting of more than 5 to 10 kilograms would be out of the question.
159 Mr Skidmore suspected the plaintiff was a very high-risk candidate for recurrence of her hernia and he was not confident that that repair would hold up and told her it was likely she would require further surgery to put in a mesh for long-term fixation. He thought she would require regular follow up care and probably further surgery.
160 Mr Skidmore did not think it unreasonable to assume the plaintiff may never get back to her nursing role where she is required to perform any heavy lifting. He noted obviously after her last admission, she had suffered further depression and that was also going to be an ongoing problem.
161 Although she was unlikely to suffer any permanent disability, Mr Skidmore thought the plaintiff would certainly have long-term issues with the hernia. He noted generally, she had been through a lot with her abdominal wall hernia and indeed a complex hernia. Unfortunately, once people suffer from incisional hernias, they tend to recur.
162 The plaintiff had always been sure the fall at work did lead to a recurrent hernia and given the story she told him, he had no reason to doubt it. It was indeed a good story for someone who had suffered an acute hernia and he had no reason to doubt that diagnosis. He noted, unfortunately, the repair did not go without complication and, as such, the plaintiff had suffered significant psychological and physical problems and, unfortunately, he was positive she would require further surgery in the future for her recurrent incisional hernia, given the fact that he had been unable to use mesh repair.
163 Mr Skidmore last saw the plaintiff formally in May 2013. She was then doing well from a point of view of a gastric bypass and had no problems with her incisional hernia repair. He thought incisional hernias had a 15 to 30 per cent recurrence rate. At that stage, she did not require any further treatment but there was the risk of surgery.
164 The plaintiff’s prognosis from the point of view of now having no incisional hernia was good. As she had had that repaired, there should be no physical problems with the abdominal wall. However, people, after multiple operations, often find there is a weakness and are unable to lift heavy equipment or objects and he usually puts a 10-kilogram limit on them.
165 Regarding work, Mr Skidmore’s advice was that it would be difficult for the plaintiff to nurse again. However, he thought she would certainly be able to perform basic office duties or work on a computer. He would expect she was going to have an element of chronic pain associated with her abdominal wall as this was common after any operation that required multiple revisions.
166 The plaintiff attended Monash Emergency on 21 March 2009 with a past history of depression. She gave a description of the second incident, with a complaint of excruciating knee pain. Investigations were carried out and an unspecified soft tissue disorder was diagnosed.
167 The plaintiff’s general practitioner, as of September 2009, was Dr Hill in East Bentleigh. He gave a certificate at that time supporting her working part time. At that time, the diagnostic process was underway.
168 Dr McCauley at Noble Park then took over the plaintiff’s care in September-October 2009. He noted her upper limb and knee pain was not improving and the injury had resulted in significant stress and she was at risk of becoming depressed and needed urgent rehabilitation.
169 The plaintiff has continued under Dr McCauley’s care from September 2009 to the present date.
170 Dr McCauley thought the plaintiff had suffered a definite work injury. The initial injury in the first incident appeared to have done damage to the right shoulder. The second injury had probably aggravated that, but it also caused clear ligamentous injury to both wrists and, as such, he unclearly diagnosed injury to the cervical spine, probably compatible with whiplash.
171 Dr McCauley noted MRI scans conclusively demonstrated the injury to the plaintiff’s right shoulder which is really a subacromial bursitis with the possibility of a small supraspinatus tear as well as well as ligamentous injury to the right wrist, which is likely to occur from a fall forwards.
172 Dr McCauley noted the plaintiff had been treated with Cymbalta to control depressive symptoms. He noted there was no history of previous depressive symptoms or illness; rather, the symptoms were reactive to a situation of ongoing pain as well as difficulties with her workplace and WorkCover acceptance of her claim. The Cymbalta was primarily to prevent deterioration and help with pain.
173 Dr McCauley did not believe the plaintiff’s symptoms were caused by depression but it was well known that depression could aggravate pain. Again, he thought the depression was entirely secondary to the development of her work injury.
174 In the early years, Dr McCauley certified the plaintiff as fit for alternate work on reduced hours with no patient contact or heavy lifting.
175 When seen in October 2013, he thought the plaintiff remained incapable of ongoing employment. He then noted, although her abdomen was now largely healed, the plaintiff continued to suffer considerable upper limb pain and mood disturbance. Her knee remained difficult and her memory was impaired, either as a result of her mood changes, or due to her surgical complications and ICU admission. She had limited capacity to learn new tasks and overall reduced stamina.
176 In view of the longevity of her injuries, Dr McCauley considered it likely a slow ongoing improvement would never be sufficient to return to meaningful employment and the plaintiff would certainly never be capable of returning to her pre-injury duties. He considered her disability was quite significant and likely ongoing and she remained unable to use her upper limbs fully.
177 Dr McCauley thought the diagnosis was complex. He noted the severe complications after the repair surgery, the ICU admission, a likely hypoxic brain injury and extensive deconditioning which had not recovered. He noted the bilateral upper limb injury involving both shoulders, wrists and hand, the nature of which remained uncertain. He noted also the demonstrated pathology of a tear in the right shoulder and disruption of the left wrist and a significant soft tissue injury to the left knee.
178 Secondary diagnoses were anxiety due to stress from perceived lack of workplace assistance as well as the chronicity and severity of her injuries. Dr McCauley thought loss of memory was contributed to by this depression but also likely made much worse by her surgical complications and likely hypoxic brain injury.
179 Dr McCauley considered the plaintiff gave the impression of being a hardworking nurse who was previously well until sustaining a heavy fall, resulting in multiple soft tissue injuries. She had been keen to go back to work but had been prevented from doing so by the severity of her injuries and the lack of effective assistance from her workplace.
180 The plaintiff’s overall condition worsened significantly after initial attempts at surgery and ensuing complications. He thought both those factors had significantly impaired her mental health. In 2013, he thought it unlikely the plaintiff would ever fully recover or return to work.
181 In his report of September 2014, Dr McCauley advised the right shoulder was likely to be ongoing, although symptoms may fluctuate. Again, activity will be restricted. Any lifting or activities like driving would at least be uncomfortable and, at worst, impossible. Pain could be significant and sleep could be impacted. Quality of life and enjoyment would be strongly impacted. In theory, limited part-time work might be possible not using the right arm.
182 Dr McCauley noted at that stage, the plaintiff was having ongoing bilateral wrist problems and the knee injury caused fluctuating pain. The abdominal hernias were an ongoing issue that would need to be monitored but would always threaten to get worse. Activities involving physical strength or lifting were out of the question.
183 Dr McCauley noted the psychological impact of the permanent restrictions, as to work hanging over the plaintiff’s head should not be underestimated. He thought the depression was particularly disabling as it removed motivation to try and improve and destroyed any enjoyment of life. It also aggravated pain.
184 Dr McCauley thought it likely the plaintiff would have depression for a very long period with significant impact on all activities of daily living. However, with appropriate treatment, there was some prognosis for improvement in the medium to longer term.
185 Dr McCauley considered in the foreseeable future it was unlikely the plaintiff could learn or obtain employment with this present injury. He also noted memory impairment was likely to be ongoing and it had a significant impact on the ability to learn or perform new or old tasks and that was a major factor preventing the plaintiff’s return to work.
186 In summary, Dr McCauley thought the severity and complexity of the injuries suffered were likely to have a permanent significant impact in terms of pain and enjoyment, as well as making any employment a practical impossibility. He thought there was some scope for moderate improvement but that would be unlikely to be sufficient to alter the overall prognosis.
187 Dr Feletar, rheumatologist, saw the plaintiff in June 2010 on referral from Dr McCauley for her wrist problem following the second incident.
188 Dr Feletar noted, at that stage, examination showed the right shoulder had signs of impingement and there was pain. Dr Feletar suggested further investigations of the right wrist.
189 The next review was in February 2010. Dr Feletar noted the MRI scan of the left wrist of 4 February 2010 indicated complete degenerative tear of the triangular fibro cartilage complex and also mild tenosynovitis and mild degeneration. She diagnosed degenerative disease of the right disc with pain exacerbating following the fall and diagnosed left wrist pre-existing moderately severe osteoarthritis.
190 At the time of the last review, Dr Feletar did not think the plaintiff was incapacitated for work.
191 The plaintiff was referred to Mr Deacon, orthopaedic surgeon, by Dr McCauley in February 2010 for a second opinion. He noted the two incidents.
192 The dominant right shoulder then continued to be a major problem. Mr Deacon noted the plaintiff’s past history of chronic depression had been stirred up by the accident. The plaintiff had benefited from Cymbalta.
193 Once liability was sorted out, Mr Deacon thought perhaps the plaintiff might need to have the bursa removed with a subacromial decompression which should go a long way to fixing her physical problem, and the non-physical problem will improve with that.
194 Mr Deacon noted the MRI scan of the right shoulder on 8 December 2009 showed a subacromial bursitis and supraspinatus tendinopathy with some subacromial spurring and some OA joint arthropathy and a supraspinatus tendon tear. He thought there was a positive impingement sign which was due to a subacromial bursa shown up by the MRI scan.
195 Dr Palit from Epworth Rehabilitation wrote to the plaintiff’s general practitioner in August 2009 thanking him for the referral.
196 The plaintiff then had bilateral upper limb pain and some neck pain, the most troublesome thing being her right shoulder.
197 Dr Palit thought the plaintiff was suffering from a sequelae soft tissue injury following a fall at work. She had aggravated her pre-existing shoulder complaint and appeared to have problems with her anterior capsule and probably some supraspinatus tendonitis, although that may have been somewhat quiescent due to a recent injection. She also had wrist injuries.
198 Dr Palit advised he would like to get the plaintiff into a rehabilitation program to increase her knowledge of self protection. He thought it may be worth re-injecting the shoulder and doing some treatment on the wrist.
199 The Department of Emergency Medicine at Clayton – Southern Health Emergency – noted on 21 March 2009, the plaintiff complained of a painful right knee, “fell onto chin, abdomen and twisted left knee” and a history of depression.
200 The plaintiff had physiotherapy at Total Care Clinic in Hampton Park following the second incident, initially being seen in April 2009.
201 Ms Arslan, the physiotherapist, then thought the plaintiff was not fit for pre-injury work, noting she was coping with working four hours a day, three days a week, light duties. However, her employer had not accommodated for her. It was suggested she avoid repetitive lifting. The plaintiff was then having physiotherapy once a week, mainly for management of her right shoulder.
202 The medical Discharge Summary from Delmont Private Hospital set out the major diagnosis was Major Depressive Disorder with the admission date 11 August 2013 and discharge 7 September 2013.
203 Dr Richards, psychiatrist, reported in September 2013 describing the plaintiff’s admission to Delmont Private Hospital in August 2013 under her care following a suicide attempt.
204 The plaintiff presented with Major Depressive Disorder with low mood, loss of interest in pleasure, poor appetite, loss of weight, low energy, poor motivation and a feeling of guilt, hopelessness and helplessness. She suffered bilateral shoulder pain, restricting her ability to work, and she had a complicated medical history.
205 On mental state examination, the plaintiff was preoccupied with pain, loss of employment, financial stress, WorkCover and relationship conflicts. She was suicidal and had thoughts of taking an overdose and cutting her wrists. She felt hopeless, helpless and guilty. Short-term memory was noted on cognitive testing.
206 The plaintiff had family support whilst in the ward and Cymbalta and Mirtazapine were commenced. The plaintiff wanted to return to work but was mindful of her physical limitations. Since discharge, Dr Richards had seen the plaintiff, during which time her mental state had improved. She reported shoulder pain that disturbed her sleep and limited her activities.
207 Dr Richards diagnosed a Major Depressive Disorder and chronic pain. She thought the plaintiff’s capacity for work as a nurse would not be possible due to the pain and limitation in activities due to her pain.
208 Dr Richards thought progress with regards to depression was good but the pain continued. The plaintiff would have to continue with medication and supportive therapy to cope with the work-related issues and pain. She was not able to do her usual activities due to pain.
209 Dr Richards thought the prognosis with regard to depression was good but she was not able to comment on the prognosis for pain that would impact on the plaintiff’s work as a nurse.
210 In Dr Richards’ view, psychological factors from the injury and the subsequent stress due to complications and WorkCover issues contributed to the Major Depressive Disorder.
211 The plaintiff first saw Dr Hogan in June 2013.
212 The plaintiff told Dr Hogan of the two falls at work and difficulties with her second claim, resulting in a denial of funding for ongoing treatment. She also advised the workplace had said they would not give her light duties. She told Dr Hogan there were ongoing legal difficulties with her claim.
213 The plaintiff also told Dr Hogan of the abdominal problems and hernia repair and the subsequent complications. She described ongoing wrist pain and pain in the left knee. She had constant pain in the shoulders.
214 Dr Hogan noted the plaintiff had overdosed following being distressed by a WorkCover IME report and she was under the care of Dr Richards. Dr Richards felt there was a conflict of interest as she was employed by Southern Health and the plaintiff’s care was therefore undertaken by Dr Hogan.
215 The plaintiff complained to him of constant pain exacerbated by any activities such as household tasks. She felt, in addition to her pain and limitation of activities, the major stress was ongoing legal matters.
216 The plaintiff had no energy and no motivation; she was socially withdrawn; concentration and memory was markedly impaired; she was agitated and constantly depressed in mood. She was at times suicidal and had some brief suicidal thoughts.
217 In the plaintiff’s family history, Dr Hogan noted sexual abuse as a young child, the death of her mother and the family history of depression in her sister.
218 On presentation, the plaintiff appeared markedly depressed. The impression was of a somewhat vulnerable personality with no indication of a personality disorder.
219 Dr Hogan noted the plaintiff had never had antidepressant treatment in the past but may have suffered a depressive episode after the breakup of her first marriage and her father’s death. The plaintiff also described physical injuries at work.
220 Dr Hogan thought, in the context of her ongoing pain and marked limitation of physical activity, the plaintiff had developed quite significant depressive symptomatology with sleep disturbance and marked lack of energy and motivation; social withdrawal; impaired concentration and memory; agitation; and a constantly depressed mood with tearfulness and brief suicidal thoughts. He regarded her as presenting with chronic pain as a result of work injuries and a resultant Major Depressive Disorder.
221 The plaintiff was prescribed Pristiq, potentially more powerful than Cymbalta. She described some improvement on 30 July 2013 She was now applying herself to tasks she had not done for a long time, which tended to increase her pain.
222 On review on 20 August 2013, the plaintiff complained of much continuing pain and she appeared improved in mood and said her energy had gradually improved and she was no longer irritable.
223 By September 2013, Lyrica had been increased of dosage to 150 milligrams twice daily, which had been quite beneficial for shoulder pain and it was easier to sleep. Mood had further been improved and concentration and memory remained markedly impaired.
224 Dr Hogan then thought the prognosis was uncertain. He has regarded the plaintiff as quite incapable of any work because of both her chronic pain and also her depressive symptoms. He thought she required ongoing psychiatric treatment to further ameliorate depressive symptoms.
225 Having regard to her chronic pain and her age of sixty-one, Dr Hogan did not expect that the plaintiff would be capable of employment in the future. He thought it possible there will be a further amelioration of her depressive symptoms but her chronic pain would prevent any return to pre-injury employment.
Medico-legal evidence
226 Dr Adlard, psychiatrist, examined the plaintiff at Allianz’s request in October 2010.
227 The plaintiff told him that after the first incident, she returned to normal duties and felt fine and happy and then there was the second incident and the injury to her knee and shoulder.
228 The plaintiff told Dr Adlard of her problems with her light duties and increasing depression in late 2009. Also in the previous year, the plaintiff’s mother had died, her husband had had triple bypass surgery and a close friend had died in a car accident.
229 The plaintiff reported constant right shoulder pain, pain in her right hand and left shoulder.
230 The plaintiff then described missing work very much and her life has felt so empty and she was useless without a job. She had some anger about both falls being the employer’s fault and was angry at her perceived treatment by the insurer and employer, believing she had given everything to her job but that meant nothing.
231 The plaintiff was crying when people raised issues about her work. She had significant distress because of financial stress. She had problems with her marriage breakdown and she had broken sleep, reduced concentration, limited social activities and anxiety about the future.
232 The plaintiff was then taking Cymbalta, which she had been taking for about two years. She thought she had been depressed most of her life but did not recognise it. She reported a significant degree of childhood abuse.
233 The plaintiff said, at the time of the first incident, she was taking antidepressants but she felt as though her mood was good and her illness was quite well controlled.
234 Dr Adlard noted the plaintiff was adamant she was not depressed at the time of the first incident and was not significantly depressed again until work was withdrawn in August 2009 and again in May 2010.
235 Dr Adlard noted despite her symptoms in late 2008-early 2009 and in the setting of personal issues, the plaintiff was able to work.
236 Dr Adlard thought this was clearly a complicated case, noting the plaintiff was vulnerable. She was not attempting to hide her past psychiatric history and that was why she had first sought help. Nonetheless, she was able to study nursing and appeared to be functioning quite well until the first incident. Even following that, she went back to work and was apparently doing normal jobs at the time of the second incident. He did not have any evidence the plaintiff’s psychiatric state was impairing her work performance in 2008 or 2009, or at least until the time her work was withdrawn in August 2009.
237 Dr Adlard thought it reasonable to conclude the plaintiff had a Major Depressive Disorder that began in the early 1990s and was successfully treated with antidepressants and counselling.
238 He thought it reasonable to conclude the past treated major depressive illness had recurred in the context of the ongoing pain but more particularly, in the setting of the plaintiff’s work being terminated, the loss of her role and her financial difficulties that had arisen as a result of the loss of employment and removal of WorkCover payments.
239 Dr Adlard noted the death of the plaintiff’s mother, the death of a friend and her husband’s illness in 2008. He noted, however, the plaintiff was also attending work and did not describe symptoms of depressed mood apart from overeating. While those factors had some impact upon her emotional state at that time, they are not, in his opinion, the cause of her ongoing psychological distress.
240 Dr Adlard thought the plaintiff had developed a Pain Disorder, with her pain perception beyond what one would expect given her physical injuries.
241 Dr Adlard noted the acceptance by WorkCover of a number of physical conditions and asked if liability had been accepted for those. He thought the insurer was liable for the relapse of the Major Depressive Disorder and Pain Disorder.
242 Dr Adlard thought the combination of the major depressive disorder and pain disorder had resulted in some limitations to the plaintiff’s activities of daily living, social functioning and subjective cognition, but her main work limitations were related to her ongoing physical symptoms.
243 Dr Nathar, psychiatrist, has seen the plaintiff in October 2013 and most recently on 10 June 2014.
244 Dr Nathar had a detailed history of the plaintiff’s childhood and sexual abuse. She also told him of problems with her marriage. He thought as a result of trying to suppress her childhood memories, she could have developed masked depression. At one stage, when her son was sixteen, Dr Aurora had prescribed Epilim, a mood stabiliser, for the plaintiff. She had seen a psychologist and was put on Avanza.
245 The plaintiff described not being overtly depressed before the first incident, although she was on antidepressants and also seeing a psychologist. She told Dr Nathar of both incidents and the complication with WorkCover, with her claim being rejected.
246 In 2011, there was abdominal surgery with major complications. Thereafter, from a psychiatric viewpoint, the plaintiff had become overtly depressed dealing with all these multiple issues arising from the fall plus also her financial difficulties.
247 Dr Nathar described the circumstances leading up to the valium overdose with anxiety leading up to a medico‑legal review; the plaintiff worrying about the fact she had used all her superannuation and all her mother’s inheritance; the perception that her family and kids were getting angry at her.
248 Medication was changed thereafter to a high dosage of Cymbalta, as well as Avanza.
249 As of the first examination, the plaintiff felt emotional, depressed, sad, vulnerable and fragile. She was generally anxious and panicked easily. Her suicidal thoughts were under control. She had lost enormous confidence and self-esteem and felt useless and helpless compared to what she was before. She had been highly regarded at work and others would often turn to her for conflict resolution and she now missed all that she loved at work. She had problems with memory and concentration and had little interest and energy and had to push herself to do things. She tended to be socially withdrawn.
250 On the first examination, the plaintiff was emotionally very fragile and vulnerable and frequently in tears.
251 Dr Nathar thought the nature of the psychiatric disorder arising from the first incident had been the development of a moderately severe major depressive illness which could also be looked upon as an aggravation of mild underlying chronic masked depression. He noted the plaintiff had been hospitalised in recent weeks and she was really functioning very poorly since then and at the time of the interview.
252 In terms of aetiology, Dr Nathar thought the following were relevant: the plaintiff’s vulnerability to a history of early childhood sexual abuse; mood swings and depressive tendencies for most of her life, but mainly masked and she coped extremely well, pouring her energy and life into work and volunteer work; family issues; broken marriages; troublesome abdominal problems, and also then the fall in the first incident. However, he considered the second incident as the most significant stressor that led to the major worsening aggravation of the plaintiff’s underlying depression.
253 The plaintiff’s physical problems were contributed to by the loss of her work capacity and then the stresses associated with her WorkCover claim; the abdominal surgery and the complications thereafter; massive financial difficulties; the death of her mother and difficulty with her second husband. However, that had been improved as he had become supportive.
254 All in all, Dr Nathar had to conclude that notwithstanding there were contributions from non-work related issues, he saw the problems arising from the second incident and its sequelae and the consequences of that as the major and significant contributing factor to the aggravation of the plaintiff’s well controlled depression prior to the second incident. Therefore, he considered her psychiatric injury arose out of employment and he still saw it remaining the significant contributing factor.
255 Dr Nathar thought the plaintiff would need close psychiatric follow up over the next few years, noting she was already on high doses of antidepressant medication.
256 As at the first examination, he thought the psychiatric prognosis was very poor and the plaintiff was vulnerable. She had personal health problems and significant health problems from work and the latter resulted in the loss of work capacity which had been an important element, enabling her to cope with the difficult childhood. Work had been a significant activity for her and when that had been removed, she had emotionally broken down as expected.
257 In his view, the plaintiff’s psychiatric injury alone from the second incident had a marked detrimental and significant negative impact on all activities and that was permanent. If that had not happened, she would have had some residual psychiatric work capacity, having recovered from the first incident. He doubted whether the plaintiff has any work capacity left. She would be unreliable to turn up for work and if anything went wrong in the slightest, she was too vulnerable and would panic and decompensate further. There was always a danger she would slip back into suicidal depression.
258 On re-examination in June 2014, the plaintiff said her conditions had not improved and she had the same difficulties with activity.
259 Dr Nathar thought the plaintiff continued to suffer from a major depressive illness on a background of continuing to suffer from chronic pain. He noted there was a possibility the plaintiff might even find things more difficult to cope with since her change in treating psychiatrist, as she had a very good rapport with Dr Richards.
260 Dr Nathar confirmed his views as to the effect of the psychiatric condition on daily activity and also rendering the plaintiff totally incapacitated for pre-injury or alternative work.
261 Dr Strauss, psychiatrist, examined the plaintiff in June 2014.
262 The plaintiff told him of problems with sexual abuse, her marital problems and the two incidents. He was also aware of the stress when the plaintiff’s mother died and the plaintiff’s significant abdominal problems.
263 The plaintiff told Dr Strauss that she had taken an overdose the previous year, having been profoundly depressed and having suicidal thoughts.
264 On interview, the plaintiff was extremely depressed and emotional and quite tearful. Her memory and concentration were patchy. Thinking was negative and preoccupied and she showed some evidence of obsessional thinking.
265 Dr Strauss noted the plaintiff presented with a long history of psychiatric problems. She had been on antidepressants for many years.
266 Dr Strauss thought the plaintiff was suffering from depression which had resulted from a number of factors but it should be noted that up until the second incident, she was able to work quite effectively, having returned to work in normal duties after the 2008 incident.
267 Dr Strauss believed a number of other factors had helped to cause and perpetuate the plaintiff’s depression but he had no doubt the second incident and the problems she had with her compensation process thereafter brought about a significant decline in her mental health. She is a woman who valued her ability to work and once she lost her job after the second incident, her self-confidence plummeted and that caused a significant worsening in her overall mental state. The second incident and the events thereafter continued to cause significant depression.
268 Dr Strauss thought the plaintiff suffered from chronic pain which was partly organically based but he now believed that she does tend to express emotional upset in the form of pain and not only does she have depression, but she probably has a psychologically-based Pain Disorder as well. He apportioned 70 per cent of her current depression as a result of the second incident.
269 Dr Strauss thought the plaintiff needed psychiatric treatment at least once a month and to continue with her current psychotropic medication. He thought her prognosis was poor.
270 On psychiatric grounds as a result of the second incident, he thought the plaintiff was totally and permanently incapacitated and suffered a diminution in her enjoyment of life and her ability to participate in social, domestic and recreational activities. He thought she would never work again and she would need indefinite treatment.
271 I propose to deal with the evidence as to the right shoulder injury in less detail.
272 The plaintiff was examined by Mr Simm, orthopaedic surgeon, in June 2013. She told him of the first incident, after which her shoulder symptoms resolved, and then further injury in the second incident. At that examination, she had persistent pain in her wrists, the left hip, left knee and both shoulders, which she attributed to the second incident.
273 Mr Simm diagnosed residual right shoulder dysfunction (both incidents) due to degenerative supraspinatus tendinopathy and moderate acromioclavicular joint degeneration. There was aggravation on the pre-existing pathology as a result of the first incident. Symptoms from the pathology resolved after her right shoulder injection.
274 The pathology was present but asymptomatic prior to the second incident which was a fall onto outstretched hands, the mechanism of which could be responsible for aggravation of rotator cuff pathology and acromioclavicular joint degeneration.
275 The diagnosis in relation to the claimed work injury was unresolved aggravation of pre-existing degenerative supraspinatus tendinopathy and acromioclavicular joint degeneration.
276 Mr Simm thought there were also features of a chronic pain response and he thought the condition would persist.
277 Mr Simm considered, as a result of the right shoulder injury in the second incident, the plaintiff has a limited use of her dominant right arm away from her body or in an overhead position. She could not use her arm for strenuous repetitive activities such as heavier house cleaning or to physically assist patients in work as a nurse. Accordingly, she would now be confined to light nursing and would need to be exempted from the physical component of that work.
278 Mr Reid, general surgeon, examined the plaintiff in July 2013.
279 The plaintiff told him of injury to her right shoulder in the first incident. He diagnosed a partial thickness tear of the supraspinatus tendon and subacromial bursitis and also bicipital tendonitis as a result of the two incidents.
280 Symptomatically, Mr Reid thought it likely the plaintiff could continue to have pain and limitation of movement for the foreseeable future, noting that position could be improved with surgery. However, in most cases some degree of pain and limitation of movement usually persists.
281 Mr Reid considered the long-term effect on the plaintiff’s employment was that it would not be advisable for her to return to her pre-injury duties of general nursing. He did not think that in the foreseeable future, she would be able to perform work involving elevation of her right arm above shoulder level or carrying more than 5 kilograms. He then concluded all the disabilities, noting problems with housework and work, were as a result of the first incident alone.
282 Dr Reid dealt with the abdominal injury and also the injury to the left and right wrists.
283 Mr Myers, vascular surgeon, examined the plaintiff in November 2013 and re-examined her in June 2014.
284 The plaintiff told him about both incidents and problems with her right shoulder, left wrist and abdomen.
285 On examination, there was restriction of right shoulder movement apparently associated with pain. Mr Myers diagnosed tear of the rotator cuff and possible aggravation of acromioclavicular osteoarthritis resulting from the two incidents.
286 In his view, the right shoulder injury alone would be sufficient to prevent the plaintiff from returning to any form of employment in the future and would result in restriction of everyday activities, enjoyment of life and capacity to perform any form of work either full or part time, quite apart from any psychiatric consequence.
287 Mr Myers came to the same conclusion in relation to the abdominal problem and the right wrist.
288 On re-examination in June 2014, the plaintiff told Mr Myers, if anything, her condition was a little worse than previously seen.
289 There was a greater restriction of the range of right shoulder movement.
290 Mr Myers then had available the ultrasound of the right shoulder of 11 February 2014, which showed a full thickness tear of the supraspinatus which was probably acute on chronic with associated subacromial bursitis.
291 The opinions expressed in his previous report remained unchanged, although it appeared there was every likelihood that there had been further damage to the right shoulder since then with worsening of her pain and greater restriction of movement.
292 Mr Brearley, orthopaedic surgeon, examined the plaintiff in July 2014.
293 The plaintiff told Mr Brearley of both incidents and the treatment in relation thereto and also the problems with her abdomen. She told him she had limitation of right shoulder movements and she had pain in both wrists.
294 On examination, there was some limitation of right shoulder movement and the plaintiff did not appear to be exaggerating any of her symptoms.
295 Mr Brearley thought, in the first incident, the plaintiff suffered a tear of the supraspinatus tendon and aggravation of pre-existing degenerative changes in the acromioclavicular joint and there was an aggravation in the second incident.
296 Mr Brearley thought the plaintiff had some residual stiffness of the right shoulder and there was no likelihood of any improvement. That injury alone would prevent her carrying out former Division 2 Nursing duties. She is unable to do any work at or above shoulder height and she had pain on repetitive use of her arm and could not do any heavy lifting. He did not think she had any capacity for employment.
297 Mr Brearley thought there was a real recurrence of the hernia and that the plaintiff could not work in relation to that condition. He thought she had a limited capacity for work because of her wrist injury.
298 Dr Colman, gastroenterologist, examined the plaintiff in June 2013.
299 Dr Colman noted that surgery had healed the hernia. He considered overall, the condition was not stable. He considered the long-term effect of a complicated surgery would likely lead to the development of intra-abdominal adhesions affecting the small and large bowel. Adhesions could occur after abdominal surgery and there was certainly the possibility that the plaintiff would develop symptoms of adhesions and a possible bowel obstruction in the future.
300 Dr Colman provided a supplementary report, having been provided with details of a recent hospitalisation at Linacre when the plaintiff was admitted with vomiting for investigation. He confirmed there was no sign of recurrent hernia.
Vocational evidence
301 Flexi Personnel provided a report in August 2013 setting out that the injuries sustained on an individual basis alone would hamper the plaintiff’s return to work prospects into economically self-sustaining work on a full-time or even part-time basis in the foreseeable future; however, significantly greater when combined, having looked at her right shoulder, bilateral wrists and hernia.
Claim documentation
302 The plaintiff lodged a claim in relation to the second incident on 1 April 2009 where she listed injury to her left knee, left hip and abdomen. There was a further claim in September 2009 where the plaintiff also added her shoulders and anxiety and depression to her injury.
The Defendant’s medical evidence
303 On 12 June 2008, Dr Ghobrial noted the plaintiff started to feel depressed again with suicidal thoughts but never “thought of doing it”. Lexapro was increased to 30 milligrams and there was a discussion about referral to a psychologist and a medical certificate was given for work.
304 On 22 June 2008, the plaintiff attended, having had a fall on a slippery floor coming out of an elevator. She fell, sitting on her buttock with an uncomfortable right shoulder and right foot, and heel pain.
305 There were subsequent attendances for the right shoulder on 23 June, 30 June, 7 July and 14 July 2008.
306 On 29 September 2008, it was noted the plaintiff was back to normal and felt normal after an injection. She felt very stressed and felt down and was suffering from depression. There was a referral for a mental assessment.
307 It was noted on 19 November 2008, the plaintiff’s mother had died. On 28 November 2008, her husband had had triple bypass surgery. Stilnox was added to the medication regime.
308 On 10 February 2009, it was noted the plaintiff’s mood was very bad, “cannot sleep, and feels down, crying by herself”. Lexapro and Stilnox were prescribed.
309 On 23 March 2009, it was noted the plaintiff fell at work, “landed on her face, abdomen, x‑ray. Less pain, less swelling on the left knee.”
310 On 25 March 2009, it was noted long discussion regarding the plaintiff’s husband and depression. The plaintiff was started on Cymbalta on 30 March 2009.
311 On 14 April 2009, it was noted “pain on the right shoulder, severe since last fall at work”. Bilateral shoulder pain was complained of on 16 April 2009.
312 The Monash Mental Health Services documentation of 8 August 2013 set out a list of issues that were relevant to the plaintiff’s admission at that time.
Medico-legal evidence
313 Associate Professor Mendelson, psychiatrist, examined the plaintiff in May 2014.
314 On interview, the plaintiff was somewhat tense and at times emotionally distressed and close to tears. Her affect was overall mildly to moderately depressed and anxious.
315 Professor Mendelson was aware of the plaintiff’s history of sexual abuse and she told him she was initially diagnosed as having depression in 1997 or 1998 and it was only in 2001 she had been referred to a psychiatrist.
316 The plaintiff told him that before the first incident, she had been taking Zoloft as well as Epilim.
317 There were then the two incidents. The plaintiff also told him of her psychiatric treatment with Dr Richards and the overdose.
318 The plaintiff told Professor Mendelson that her pain in the shoulder was like someone drilling a hole. Her sleep was disturbed. Her concentration was very bad and she complained of memory problems.
319 Based on the recent examination, Professor Mendelson thought the plaintiff currently experienced some residual symptoms of depression and anxiety that she stated were secondary to chronic pain, resultant restrictions on her activities, unemployment and her overall current situation.
320 Professor Mendelson considered at present, the plaintiff no longer has the specific severe depressive symptoms that were present during the hospital admission. In his opinion, the most appropriate current psychiatric diagnosis was of a moderate depressive episode with associated anxiety symptoms.
321 At the same time, it was Professor Mendelson’s opinion the plaintiff’s current emotional symptoms do not per se cause loss of work capacity. In his view, a return to work, even on a part-time basis, would have a beneficial effect on her emotional state.
322 If it was accepted there was a continuing work-related physical injury contributing to her pain, then, in his view, it would follow that the current depressive disorder was also at least in part work related. However, as noted, the plaintiff had a past history of depression as well multiple abdominal operations.
323 In Professor Mendelson’s opinion, it is appropriate the plaintiff continue to take antidepressant medications under the supervision of a psychiatrist. He thought she had the capacity for gainful employment within the limitations of her physical condition. In his opinion, she was not precluded by any psychiatric factors from working in any of the three suggested jobs.
324 Dr Ho examined the plaintiff in August 2009. She was then working four hours a day, three days a week, on light duties and reportedly struggling at work. She complained of constant pain in her shoulders, arms and wrists.
325 On examination, the plaintiff was anxious and nervous and she was preoccupied with her pain spots which she had marked on her body with a Biro.
326 Dr Ho believed the plaintiff fully recovered from the effects of the second incident. Her widespread pain in her shoulders, arms and wrists would not be related to it. In his opinion, the symptoms presented after she had been back at work for three days would not be work related as there had not been any specific injury.
327 In Dr Ho’s opinion, the plaintiff’s widespread Pain Syndrome was most likely psychosomatic and he deferred further comment on her condition to the psychologist.
328 From the physical point of view, Dr Ho believed that the plaintiff was currently fit to return to her pre-injury duties full time. However, given the Pain Syndrome, he thought it prudent to offer her a graduated return to work. He did not believe she required any ongoing physical therapy. He thought she should take care with strenuous activities above shoulder level but she would benefit from a referral to a psychologist and pain management was appropriate.
329 Dr Elder, occupational physician, examined the plaintiff in October 2010 in relation to her first incident injury.
330 The plaintiff listed her current symptoms as right shoulder pain but she also had left shoulder and knee pain.
331 On examination, there was no wasting of the shoulder girdle musculature and the plaintiff was not particularly tender throughout her shoulders. There was some restriction of right shoulder movement.
332 Dr Elder thought the plaintiff had had a full resolution and no permanent impairment relating to the first incident. He had, however, noted the history of both falls and that he confirmed with the plaintiff that the first incident did not leave her with any physical sequelae.
333 Dr Fraser, rheumatologist, first examined the plaintiff in November 2012 and re-examined her in August 2013.
334 On initial examination, Dr Fraser thought there appeared to be significant over reaction. There was restriction of right shoulder movement.
335 Dr Fraser thought the injury from the first incident had resolved and the plaintiff was back to full-time work when she had the second incident. He could not exclude the possibility she sustained a supraspinatus tear as a result of the first incident but, if so, it resolved.
336 The plaintiff did not complain about right shoulder pain immediately after the second fall but admitted she was mainly concerned about her knee. She only complained of right shoulder pain when she went back to work again.
337 Dr Fraser noted currently there is significant overreaction on physical examination, making it difficult to assess the true extent of any functional incapacity.
338 Dr Fraser considered if there was any significant incapacity, it is caused by age related degenerative changes rather than any putative work-related injury. He did not think there were any ongoing work-related injuries of the hands, wrists and left knee. At that stage, he thought the plaintiff was at least fit for work not requiring lifting in excess of 5 kilograms or any overhead rapidly repetitive or forceful use of the right arm.
339 On re-examination, the plaintiff reported no significant change since last seen. There was some restriction of movement of both shoulders. Her knees were normal as were her wrists and finger joints.
340 Dr Fraser thought the shoulder restriction was due to age related degenerative changes rather than any ongoing work related injury and that the plaintiff did not require any further treatment and there is no functional impairment resulting from the compensable injury.
341 Dr Fraser thought the plaintiff was fit for the employment options in the vocational assessment report of 7 March 2013 of admissions clerk, general clerk and customer service officer. He suggested a 5-kilogram lifting limit and no overhead or rapidly repetitive or forceful use of either arm.
342 Dr Jakobovits, gastroenterologist, examined the plaintiff in November 2012. He noted the abdominal problems and complications from hernia surgery and thought the plaintiff had been left emotionally and physically scarred from this prolonged illness but now seemed to be recovering.
343 Dr Jackobovits did not think there was any need for further treatment for the hernia and that the prognosis was good and hopefully there would be no further hernias. He noted the plaintiff was keen to return to work and he thought there was no reason she should not go back to work on a graduated program. She is not allowed to do any heavy lifting. He did not believe she had a loss of body function or impairment. He believed the recurrent incisional hernia and requirement for further surgery was related to the second incident.
344 On re-examination in July 2013, Dr Jakobovits thought the plaintiff seemed to have made a reasonably good recovery from what was major surgery with life threatening complications. She had been left with lethargy and depression. She would like to go back to work with the defendant and was proud to have been part of the team and devastated by the fact she was told she had become a liability to them.
345 Dr Jakobovits did not believe the plaintiff needed any further treatment for any gastrointestinal condition. He thought she had a physical capacity for the three suggested jobs, starting initially on a part-time basis. He did not think she had any loss of function or impairment from a gastrointestinal point of view resulting from the compensable injury.
Vocational evidence
346 Workforce provided a vocational assessment report in February 2013 when the following jobs were reported as suitable: admissions clerk – $860 per week; general clerk – $1,073 per week, and customer service officer – $1,049 per week.
Overview
347 Whilst the application was brought pursuant to ss(a) for as right shoulder impairment in relation to the two incidents, and ss(c) for psychiatric impairment, the focus of the application was on the plaintiff’s psychiatric impairment, resulting from a Chronic Pain Syndrome, Major Depressive Disorder and Anxiety following her experience of pain and frustration due to her work injury, not being able to work and her anxiety associated with complications following abdominal surgery for an accepted injury, leading to a suicide attempt in 2013.
348 Counsel for the plaintiff submitted the second incident and its sequalae played a major part in the plaintiff’s current psychiatric presentation.[34]
[34]T2
The right shoulder
349 Clearly, the plaintiff suffered injury to her right shoulder in the first incident but she had recovered to sufficiently to return to full-time normal duties and was cleared to do so, save that she had to be careful when doing her nursing duties.
350 Following the second incident, the plaintiff aggravated her right shoulder injury and also suffered an abdominal injury.
351 The plaintiff has undergone treatment and investigation of her right shoulder following both incidents but surgery has not been undertaken. There is radiological support for a right shoulder condition with a partial tear shown on initial investigations.
352 It was conceded by counsel for the defendant that at its highest, the plaintiff has a partial disability in relation to the right shoulder and that there are issues of disentanglement relating to the two incidents and also the return to work in Easter 2009. It was submitted there were also issues of the nature raised by the Court of Appeal in Peak Engineering & Anor v McKenzie[35] – with a number of other medical conditions implicated in the plaintiff’s current presentation.[36]
[35][2014] VSCA 67
[36]T130
353 The consensus of medical opinion is that the plaintiff cannot work as a Nurse because of her right shoulder impairment. However, there are also a number of other injuries which contribute to this situation; namely, wrist pain, left hip and knee pain and her psychiatric condition.
354 Counsel for the defendant conceded that there is probably no doubt, taken as a whole with all her injuries, the plaintiff probably does not have a work capacity.[37]
[37]T117
355 In these circumstances, I am unable to find that in relation to the right shoulder alone, the plaintiff’s work capacity has been significantly compromised by either incident.
356 Given my main finding discussed below, the issues of disentanglement of the effects of the two shoulder injuries, what occurred on the plaintiff’s return to work in Easter 2009 and Peak Engineering[38] factors do not need to be considered.[39]
[38]Supra
[39]T118
357 In my view, the consequences of any right shoulder condition as at the date of hearing are not serious. Further, any such condition lacks a substantial organic basis.
358 In Meadows v Lichmore Pty Ltd,[40] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[40][2013] VSCA 201 at paragraphs [21]-[22]
359 Counsel for the defendant however did not concede the present physical evidence supported a diagnosis of a pain response or that the plaintiff’s condition lacked a substantial organic basis.[41]
[41]T129
360 I disagree with this submission.
361 Whilst originally organic in nature, over the years the plaintiff’s right shoulder condition has taken on an increasingly non-organic flavour. Her initial physical injury has been overwhelmed by a pain response and a Depressive Disorder.
362 This theme has been echoed through a number of medical reports from both treaters and medico-legal examiners.
363 As early as 2009, when the plaintiff’s treating surgeon, Mr Lade, last reported, he considered her injuries were really just soft tissue in nature with an emotional overlay and he was hoping that would all settle down with conservative management.
364 When the plaintiff saw Dr Ho in 2009, she had marked with Biro the pain spots on her body. He diagnosed a widespread Pain Syndrome that was most likely psychosomatic. Dr Fraser that year also found significant overreaction on examination, making it difficult to assess the true extent of any functional incapacity.
365 In 2013, Mr Simm diagnosed residual right shoulder dysfunction (both incidents) due to degenerative supraspinatus tendinopathy and moderate acromioclavicular joint degeneration. However, he also thought there were features of a chronic pain response.
366 There is also support for the diagnosis of Chronic Pain Syndrome from psychiatrists such as Dr Adlard, who thought the plaintiff had developed a Pain Disorder with her pain perception beyond what one would expect given her physical injuries.
367 Medical practitioners who supported the plaintiff’s organic claim have not undertaken any detailed analysis explaining their conclusions – accepting simply all the injuries complained of without any analysis of the two incidents and implicating other complaints made by the plaintiff in their ultimate conclusion as to her present condition.[42]
[42]Professor Myers finding a number of conditions alone resulted in total incapacity.
368 Having found the plaintiff’s condition lacks a substantial organic basis, the application is properly assessed pursuant to clause (c), as Ashley JA set out in Veljanovska v Socobell Oem Pty Ltd.[43] As counsel for the plaintiff submitted, the plaintiff’s Chronic Pain Syndrome is of a psychiatric nature.[44] The plaintiff has also been diagnosed as suffering from Depression and an Adjustment Disorder.
[43]Supra
[44]T43
369 In these proceedings, it is not disputed the plaintiff suffered a compensable psychiatric injury on or about the second date.
370 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[45] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[45][2006] VSCA 171
371 In the present application where there is a pre-existing psychiatric condition, I must consider what the evidence discloses as to the plaintiff’s prior psychiatric condition and determine whether the additional impairment resulting from the second incident is severe and permanent.
372 In Petkovski v Galletti,[46] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[46][1994] 1 VR 436
373 The plaintiff was prescribed anti-depressant medication for some years prior to the second incident to treat problems related to sexual abuse as a child. She was continuing to take this medication at the time of the incidents. There were about six attendances on a psychiatrist in the early 1990s to regulate the plaintiff’s medication regime.
374 The nature of the plaintiff’s psychiatric condition closer to the incidents is somewhat unclear, with her general practitioner noting complaints of suicidal thoughts and the prescription of sleeping tablets and discussion about referral to a psychologist only weeks before the first incident. The plaintiff however did not agree with the contents of this note.
375 Despite the childhood abuse, the plaintiff has had a strong work history and was able to work for the defendant as a Nurse from 2002. She was also able to care for her sick mother for three years until her death in November 2008, with the assistance of her sisters.[47]
[47]T141
376 In 2010, Dr Adlard summed up this situation noting that despite the death of her mother, the death of a friend and her husband’s illness in 2008, the plaintiff was also attending work and did not describe symptoms of depressed mood apart from overeating. While those factors had some impact upon her emotional state at that time, they were not, in his opinion, the cause of her ongoing psychological distress.
377 All in all, Dr Nathar had to conclude that, notwithstanding there were contributions from non-work related issues, he saw the problems arising from the second incident and its sequelae and the consequences of that as the major and significant contributing factor to the aggravation of the plaintiff’s well controlled depression prior to the second incident. Therefore, he considered her psychiatric injury arose out of employment and he still saw it remaining the significant contributing factor.
378 Dr Strauss believed a number of other factors had helped to cause and perpetuate the plaintiff’s depression but he had no doubt the second incident and the problems she had with her compensation process thereafter brought about a significant decline in her mental health. He noted the plaintiff’s self-confidence plummeted after she lost her job after the second incident, having valued her work so highly. In his view, the second incident and the events thereafter continued to cause significant depression.
379 Since the time of the second incident, there have been psychiatric issues at the more severe end of the spectrum including hospitalisation, significant psychiatric treatment and more serious symptoms including a suicide attempt.[48]
[48]See Papamanos v Commonwealth Bank of Australia [2013] VCC 1491 at paragraph [69] per Judge O’Neill
380 Counsel for the defendant submitted there were other reasons for the overdose including comments made by the plaintiff’s sister, her son’s problems and upset at the WorkCover process.[49] However, there were a number of work-related factors noted by the Hospital at that time, as counsel for the plaintiff pointed out including the work incidents, the abdominal injury, subsequent surgery and the serious complications relating thereto.[50]
[49]T132
[50]T141
Credit
381 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[51]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[51](2010) 31 VR 1 at paragraph [12]
382 There was no suggestion by counsel for the defendant that the plaintiff was not telling the truth, save for criticism of her failure to give full details as to her psychiatric history.
383 I accept as her counsel submitted, the plaintiff was absolutely doing her best.[52] She maintained her composure and answered questions clearly and concisely until her outburst near the end of cross-examination, where she described in detail her problems from an emotional viewpoint dealing with her daily life and her inability to return to any work as a result of the work injury.
[52]T145
384 I accept the plaintiff is suffering from both a Major Depressive Disorder and a Chronic Pain Syndrome due to her work, and those conditions result in an inability to engage in suitable employment .
385 Psychiatric factors have been noted by the plaintiff’s treaters relating to her frustration and sadness at not being able to return to work due to her chronic pain and emotional state when work meant so much to her. The life threatening complications following the 2011 surgery have also had a major effect on the plaintiff’s mental health.
386 In 2011, Mr Skidmore noted, unfortunately, the hernia repair did not go without complication and, as such, the plaintiff had suffered significant psychological and physical problems.
387 Dr McCauley thought the plaintiff’s overall condition worsened significantly after initial attempts at surgery and ensuing complications. He thought both those factors had significantly impaired her mental health. In 2013, he thought it unlikely she would ever fully recover or return to work.
388 Dr Richards, who treated the plaintiff in the period following the overdose until mid-2014, considered the plaintiff could not work because of the pain and limitations reported by her, although she thought depression was improving and prognosis was good at that time, just following the suicide attempt. However, she thought the plaintiff would have to continue with medication and supportive therapy to cope with the work-related issues and pain.
389 Dr Richards’ optimism was not shared by treating psychiatrist Dr Hogan in more recent times who described the plaintiff as markedly depressed and he thought her prognosis was uncertain.
390 Later in 2014, Dr Hogan thought the prognosis was uncertain. He regarded the plaintiff as quite incapable of any work because of both her chronic pain and also her depressive symptoms. He thought she required ongoing psychiatric treatment to further ameliorate depressive symptoms.
391 Having regard to her chronic pain and her age of sixty-one, Dr Hogan did not expect that the plaintiff would be capable of employment in the future. He thought it possible there will be a further amelioration of her depressive symptoms but her chronic pain would prevent any return to pre-injury employment.
392 In a medico-legal context, in 2010, Dr Adlard diagnosed a Pain Disorder and a Major Depressive Disorder which had resulted in some limitations to the plaintiff’s activities of daily living, social functioning and subjective cognition, but her main work limitations were related to her ongoing physical symptoms.
393 On re-examination in July 2013, Dr Jakobovits thought the plaintiff seemed to have made a reasonably good recovery from what was major surgery with life threatening complications. She had been left with lethargy and depression.
394 In 2014, Dr Nathar thought the plaintiff’s psychiatric condition rendered her totally incapacitated for pre-injury or alternative work.
395 Dr Strauss thought the plaintiff suffered from chronic pain which was partly organically based but he now believed that the plaintiff tended to express emotional upset in the form of pain and not only does she have depression, but she also probably had a psychologically-based Pain Disorder. He considered she needed psychiatric treatment at least once a month and to continue with her current psychotropic medication and that her prognosis was poor.
396 On psychiatric grounds, as a result of the second incident, Dr Strauss thought the plaintiff was totally and permanently incapacitated and she would need indefinite treatment.
397 In terms of loss of earnings, counsel for the plaintiff submitted that it was an “all or nothing” situation and did not suggest figures.[53] Counsel for the defendant submitted $626 per week was the appropriate “without injury” earnings figure.[54]
[53]T114
[54]$49,660 gross in 2008 with 3 per cent increases for the next 3 years – $54,263 x 60 per cent = $32,557 gross
398 Counsel for the defendant further submitted the plaintiff would not suffer the requisite loss if she worked 29 hours per week as an admissions clerk, 24 hours as a general clerk or customer service officer.[55]
[55]T140
399 Given my findings that the plaintiff has no capacity for employment on psychiatric grounds, I am satisfied that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
400 Having found there is no capacity for suitable employment, I accept that the plaintiff has suffered the requisite loss of 40 per cent and that such loss is likely to continue into the foreseeable future.
401 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g). Counsel for the defendant submitted the plaintiff had not discharged the onus in this regard.[56]
[56]T140
402 In my view, however, given the severity of the plaintiff’s psychiatric condition, there is no scope for rehabilitation or retraining – a view supported by Dr McCauley.
403 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
404 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[57] and Advanced Wire & Cable Pty Ltd v Abdulle.[58]
[57][2009] VSC 454 at paragraph 147
[58][2009] VSCA 170
405 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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