Telecki v Achievement Cleaning Services Pty Ltd
[2019] VCC 275
•19 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04044
| LJUBICA TELECKI | Plaintiff |
| v | |
| ACHIEVEMENT CLEANING SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 February 2019 | |
DATE OF JUDGMENT: | 19 March 2019 | |
CASE MAY BE CITED AS: | Telecki v Achievement Cleaning Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 275 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury and Compensation Act 2013 – ss325 and 335 – application in respect of both loss of earning capacity and pain and suffering – reliance upon sub-paragraphs (a) and (c) of the definition – injury to the dominant left upper limb, the spine and psychological or psychiatric injury – principal reliance upon injury to the upper limb – disentanglement of symptoms and restrictions – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Mr A Moulds QC with Mr A Newman | Wisewould Mahoney |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335 of the Workplace Injury and Compensation Act 2013, (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings in respect to loss of earning capacity and pain and suffering. In so doing, she relies upon sub-paragraphs (a) and (c) of the definition of “serious injury” contained in s325 of the Act. The injuries relied upon are to the left shoulder, aggravation of a spinal condition and the aggravation of a psychological or psychiatric state. However, in his opening, Mr Rattray, on behalf of the plaintiff, stated that the main focus would be on the left shoulder injury – see Transcript (hereinafter referred to as “T”) 2. There is no argument but that the plaintiff is left hand dominant – see, for example, T5.
2 The plaintiff had worked for a number of years as a cleaner, originally employed by two entities, one of which was the defendant in this application and its predecessor. The defendant, Achievement Cleaning Services Pty Ltd, shall hereinafter be referred to as “Achievement”. However, the plaintiff was involved in a motor vehicle accident on 3 December 2010, suffering in that accident injuries to the neck, low back and left hip. After the motor vehicle accident, she no longer worked as a cleaner and supervisor for two entities and for 50 hours per week. She continued to work as a cleaner and supervisor for Achievement for 25 hours per week, but did not engage in additional employment.
3 The alleged injury the subject of the present application occurred when the plaintiff was vacuuming large rubber mats in the gymnasium at Swinburne University, this occurring over a number of months. Whilst there was no single specific episode, what occurred shall hereinafter be referred to as “the accident”. The plaintiff ultimately ceased work with Achievement in May 2016 and has not worked since.
4 Mr P Rattray QC with Mr R Forsyth of counsel appeared on behalf of the plaintiff. Mr A Moulds QC with Mr A Newman of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, save for two amendments. The remainder of the evidence was documentary in nature and was tendered either by consent or without objection. It should also be pointed out that the plaintiff gave evidence with the assistance of a professional interpreter and it is apparent that such assistance was also required at least at some medical examinations.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the accident
5 The plaintiff is aged 60 years, she having been born in Serbia in May 1958. She was educated in that country to the age of 16 years. She then undertook a textile course and worked for a textile factory in a marketing capacity for some 22 years, before migrating to Australia in 2000. She has been twice married and divorced and has an adult son. She is now a single person.
6 In this country, the plaintiff has always worked as a cleaner. Originally and until the time of the motor vehicle accident in 2010, she worked a total of 50 hours per week for two companies. As stated, one of these was effectively the predecessor of Achievement and the other was operated by her son. She worked 25 hours per week for each entity. Following the motor vehicle accident, she was absent from work for approximately three months, resuming work for Achievement as a cleaner and supervisor in approximately March 2011. She worked 25 hours per week in a permanent part-time capacity and had no other employment. Her allegation is that the work with Achievement took her to the gymnasium at Swinburne University in approximately October 2015. It was there that the vacuuming of the heavy rubber mats took place and where the injuries were alleged to have been suffered, this leading to a termination of employment in May 2016.
(b)The plaintiff as a witness
7 Whilst the credit of the witness was certainly raised as an issue in the opening of Mr Moulds (see, for example, T15), credit, as such and in the sense of trying to mislead medical examiners and the Court, did not warrant much, if any, attention in the closing address of Mr Moulds. I note that Dr Gary Davison, consultant occupational physician, who twice examined the plaintiff at the request of the defendant, on each occasion described her as a pleasant and cooperative historian. Her treating psychiatrist, Dr Vinay Kumar, has described her as being cooperative and pleasant, with good insight and sound judgment. The impression which she created in the witness box was consistent with these descriptions.
8 In short, I accept the plaintiff as a witness of truth and I accept her evidence.
The injuries
The injury to the left shoulder and upper limb
9 As stated, the plaintiff is left hand dominant. As also mentioned earlier, Mr Rattray indicated that the main focus would be on the left shoulder injury. Accordingly, in examining the injuries separately, I shall deal firstly with the left shoulder and upper limb injury and will attempt to focus on it largely in isolation, although some reference to matters of disentanglement from the other injuries seems inevitable.
(a)The state of the plaintiff’s left upper limb prior to the accident
10 It is not suggested that the plaintiff had suffered a prior injury to or symptoms in the left shoulder prior to the accident. In the motor vehicle accident on 3 December 2010, the plaintiff suffered injury to the cervical spine. However, it was quite properly conceded by the defendant that there was no evidence of pre‑existing symptoms emanating from the plaintiff’s left shoulder. I would refer to the written submissions of Mr Moulds and Mr Newman and also to the closing oral submissions of Mr Moulds at T70. Accordingly, I accept that the plaintiff suffered from no injury to, symptoms in, or restrictions emanating from, the left shoulder and upper limb prior to the accident.
(b)The injury to the left shoulder and arm, its treatment, diagnosis and effect upon the plaintiff’s capacity for suitable employment
11 I accept that the plaintiff first noticed symptoms in her left shoulder in October 2015, these being associated with the vacuuming of the large rubber mats. She experienced sharp pain in her left shoulder and down into her left arm. She complained to her boss, but continued working through to the Christmas break. She then returned to Serbia for approximately six weeks. Her left arm was feeling a little better when she returned to work in 2016. However, the pain in her left shoulder and left arm returned and steadily worsened, ultimately leading to what she described as her forced resignation in approximately May 2016. The plaintiff’s earlier affidavit does also refer to neck and lower back pain at this time, although pain in the left shoulder and arm are the first problem areas mentioned.
12 On 5 May 2016, the plaintiff attended upon her then general practitioner, Dr Elias Sleaby, in St Albans. She gave an appropriate history in relation to the rubber mats and was complaining of left shoulder pain. Dr Sleaby organised an ultrasound of the left shoulder, this being performed on 11 May 2016. The conclusion of the radiologist was that the plaintiff had left supraspinatus calcific tendonosis. There was no tear, but evidence of bursitis. The radiologist also referred to there being left subdeltoid-subacromial bursitis with bursal impingement on abduction during dynamic scanning. The suggestion was made of an ultrasound-guided steroid injection. The diagnosis of Dr Sleaby seems to have been of left shoulder rotator cuff injury with tendonitis.
13 Dr Sleaby saw the plaintiff again on 7 July 2016. On this occasion, the plaintiff stated that she had also sustained back and neck injuries. After ceasing work with Achievement, she had tried employment as a Uber driver, but could not cope. Dr Sleaby amended WorkCover certificates to include the aggravation of the old lower back and neck injuries. It would also appear that the plaintiff had been treated by a physiotherapist.
14 Shortly after this the plaintiff moved from the Western suburbs to Carnegie/Glenhuntly, and thereafter her treating general practitioner was Dr Zev Barr at Carrum. Apparently someone recommended Dr Barr to the plaintiff and it was comparatively easy for her to go by train from Glenhuntly to Carrum. In any event, Dr Barr first saw the plaintiff on 11 July 2016. On this occasion, and whilst the plaintiff also complained of pain in the spine, again pain and discomfort of the left upper limb and shoulder were the first symptoms listed. Dr Barr found that the mobility of the shoulder was reduced by 30 per cent “locally”, and that the mobility of the left upper limb was reduced by some 30 per cent to 40 per cent. It would appear that Brufen was prescribed.
15 Dr Barr saw the plaintiff again on 22 August 2016 and 5 September 2016. He continued to prescribe medication. She did not improve. When seen on 31 October 2016, the mobility of her left shoulder and arm remained restricted. She was very limited in her lifestyle. Dr Barr was prescribing Cymbalta, Brufen and Comfarol Forte, which I understand to be a medication used for severe pain and fever. In any event, over this period of time there was little improvement in the plaintiff’s condition and quite extensive work restrictions were placed on her by Dr Barr.
16 Dr Barr then appears to have organised a further ultrasound of the left shoulder, with the radiologist reporting back to him on 15 December 2016. The conclusion of the radiologist was that there was supraspinatus enthesopathy and mild subacromial bursitis. There was also a possible small partial tear in the supraspinatus tendon. When reporting to the plaintiff’s solicitors on 21 February 2017, Dr Barr stated that, since his earlier report, the plaintiff’s progress had remained much the same in late 2016 and early 2017. He had continued to prescribe Brufen, Cymbalta and Comforal Forte. He remained of the view that the plaintiff was not fit for any work which entailed ongoing repetitive, prolonged or exertive use or the handling of weights over 5 kilograms. The plaintiff’s loss of range of movement of the left arm remained much the same.
17 On 6 August 2018, Dr Barr reported to the WorkCover Conciliation Service. This report sets out the history of events as earlier described. The plaintiff had been seen by Dr Barr on at least six occasions during 2017. Her progress remained much the same, as did the medication prescribed. Another ultrasound and x‑ray of the left shoulder had been performed on 27 March 2017. The conclusion of the radiologist had been that the presence of acromioclavicular joint synovitis was confirmed. There was also minor enthesopathy of the supraspinatus tendon, but no tear. An ultrasound-guided cortisone injection into the AC joint was suggested.
18 It is also apparent that the plaintiff was referred by Dr Barr to Associate Professor Martin Richardson, orthopaedic surgeon. Associate Professor Richardson first reviewed the plaintiff on 5 June 2017. Whilst Associate Professor Richardson was aware that the plaintiff also had some cervical and lumbar problems, it is apparent that he saw her in relation to her left shoulder. The diagnosis of Associate Professor Richardson was of a frozen shoulder and hydrodilatation was recommended. The possibility of a manipulation under anaesthetic and arthroscopic capsulotomy was also discussed.
19 Associate Professor Richardson reviewed the plaintiff on 23 April 2018. The plaintiff was distraught, with ongoing pain in the left shoulder. A hydrodilatation had been attempted on 2 March 2018. The plaintiff could not afford the follow-up physiotherapy. The possibility of a manipulation under anaesthetic and arthroscopic capsulotomy was considered. It is of interest that the defendant did pay the reasonable costs of hydrodilatation, although, given that no other medical expenses or compensation seem to have been paid, it was affectively agreed that little can be read into this in terms of an acceptance of overall liability. In any event, Associate Professor Richardson was generally of the view that the previous hydrodilatation for her frozen left shoulder had not significantly improved her symptoms.
20 Associate Professor Richardson provided a brief report to the plaintiff’s solicitors on 22 February 2019. In relation to the plaintiff’s work capacity, Associate Professor Richardson pointed out that he had not seen her since June 2018. However, if her shoulder was as stiff as at the date of this report as it had been when last reviewed in June 2018, she would have no work capacity. He suggested obtaining an up‑to‑date report from Dr Barr.
21 Returning to that doctor, he had reported to the plaintiff’s solicitors on 6 December 2018. It is apparent that the plaintiff had seen him at least 12 times during 2018. At the time of her last visit, which was on the day of the report, she was complaining of pain in the left upper limb, left shoulder and spine. Upon examination of the shoulder, there was still a reduction of 30 per cent locally and 30-40 per cent generally in relation to the left upper limb. Dr Barr continued to place very considerable restrictions upon the plaintiff’s work capacity, although it is not entirely clear whether such restrictions resulted solely from the left arm condition. Dr Barr regarded the prognosis as being extremely guarded, as the plaintiff’s progress had stalled.
22 Dr Barr reported in brief form to the plaintiff’s solicitors on 24 February 2019. He repeated that the plaintiff’s progress had stalled. When he had last seen her on 22 February 2019, her left shoulder was no better. The plaintiff’s pain, stiffness and dysfunction were marked, consistent with ongoing frozen left shoulder adhesive bursitis and tendinopathy. Dr Barr had read the opinion of Associate Professor Richardson of 22 February 2019. He agreed that the plaintiff’s ongoing severe dysfunction was not compatible with meaningful work capacity. His remarks in this regard are clearly directed to the shoulder injury. In more general terms, he stated that the prognosis was extremely guarded, repeating that the plaintiff’s progress had stalled.
23 The plaintiff has also been seen by Professor Richard Bittar, neurosurgeon and spinal surgeon, but he has specifically not evaluated the plaintiff in relation to her left shoulder condition, stating that this is beyond his area of expertise. However, Mr Thomas Kossmann, orthopaedic surgeon, who had seen the plaintiff in 2013 and June 2015 in relation to the spinal injuries suffered in the motor vehicle accident, also saw her more recently, reporting on 8 November 2018. Whilst, in this report, he commented upon her spinal condition, his attention was also directed to the left shoulder and upper limb. He noted that she had clinical signs of a frozen shoulder on the left side. He specifically commented upon her prognosis in relation to her left shoulder joint, describing it as poor.
24 Mr Kossmann stated that the plaintiff had signs of a severe form of frozen shoulder on the left side, with significant pain issues and movement restrictions. Whilst raising the possibility of treatment by way of physiotherapy, he also referred to possible benefits from left shoulder arthroscopathy and capsulotomy. He also raised the possibility of development of osteoarthritic changes. In the portion of his quite lengthy report devoted solely to the left shoulder, he again referred to the condition as being severe, describing the prognosis of the left shoulder joint as being poor. Mr Kossmann described the left upper limb problem as having a major impact on the plaintiff’s employability and on her social, domestic and recreational activities.
25 The defendant has also had the plaintiff examined for medico-legal purposes. Dr Gary Davison, occupational physician, saw the plaintiff on 16 June 2016. Although a subsequent report some two months later was directed towards the plaintiff’s spinal condition, on this occasion Dr Davison concentrated almost exclusively upon the shoulder injury. His diagnosis was of left supraspinatus calcific tendonitis with associated subacromial bursitis and impingement. Dr Davison appears to have formed the view that calcific tendinopathy would have developed spontaneously, but that the symptoms would have been exacerbated by heavier vacuuming activity. Dr Davison seems to have been under the impression that the work in the gymnasium did not commence until after the plaintiff’s holiday in Serbia, although his later report creates a slightly different impression.
26 In any event, Dr Davison diagnosed left supraspinatus calcific tendonitis with associated subacromial bursitis and impingement. He thought that the calcific tendinopathy had developed spontaneously, although this seems to have been based upon an alleged history of insidious onset of symptoms without specific incident or accident. He thought that the symptoms had then been exacerbated by the requirement to engage in heavier vacuuming activity. He thought that such exacerbation had since ceased. However, he did place some restrictions upon the duties in which the plaintiff could engage and recommended the undertaking of an ultrasound-guided injection of cortisone.
27 As stated, the plaintiff was sent back to Dr Davison less than two months later. On this occasion (11 August 2016), the history obtained from the plaintiff was that, since October 2015, her pain had worsened because of the vacuuming and bending down. However, it would also appear that Dr Davison was directing his attention more to the spinal complaints.
28 The plaintiff has also been seen at the request of the defendant by Mr Ian Jones, orthopaedic surgeon. He saw her on 19 July 2018. The history as reported by him is quite confusing, although it is noted that the plaintiff had a professional interpreter with her. Mr Jones has reported that the plaintiff began to experience left shoulder pain in May 2016, as a result of the work in the gymnasium. However, it is also noted that the plaintiff went on an overseas holiday in December of 2015 and returned to work in February 2016, despite ongoing symptoms of back pain, neck pain and left shoulder pain. Mr Jones has then referred to her employment being terminated in May 2016. Patently, the plaintiff had gone overseas and returned to work in February 2016 despite ongoing symptoms of left shoulder pain. Her experiencing such pain could not have commenced in May of the same year.
29 In any event, Mr Jones diagnosed rotator cuff degenerative disease, although an element of frozen shoulder syndrome could not be excluded. In a brief letter of 14 February 2019, Mr Jones stated that he did not believe that the plaintiff’s left shoulder condition was the result of any work-related injury. He referred to the absence of a history of specific injury in relation to frozen shoulder syndrome. He was of the view that the cause of the rotator cuff degenerative disease and supraspinatus calcification was likely one of varying degrees of shoulder pain and stiffness, depending upon demands made on the shoulder joint, with the possibility of a significant spontaneous tear occurring. He had been provided with a letter to the solicitors previously acting for the plaintiff in relation to the motor vehicle accident and with an affidavit of 2 July 2015. This would only be of relevance to the spinal injury.
30 I prefer the opinions of those treating the plaintiff. Dr Barr has seen the plaintiff on many occasions. In a recent report of 24 February 2019, Dr Barr stated that the plaintiff’s left shoulder condition was no better. Pain, stiffness and dysfunction were marked and were consistent with ongoing frozen left shoulder adhesive bursitis and tendinopathy.
31 Associate Professor Richardson is the specialist who has treated the plaintiff for her shoulder condition. His diagnosis is of a severe frozen shoulder. This is perhaps not greatly different from the diagnosis of Mr Ian Jones, examining on behalf of the defendant, of rotator cuff degenerative disease, with the possibility that frozen shoulder syndrome could not be excluded. Of course, the history obtained by Mr Jones of left shoulder pain beginning in May 2016 would not appear to be correct, whether one has regard to other histories obtained or, indeed, to his own report in which he also referred to the plaintiff returning to work in February 2016 despite left shoulder pain. The diagnosis of Mr Kossmann of a severe form of frozen shoulder on the left side is virtually identical to that of Associate Professor Richardson. In short, the diagnosis of Associate Professor Richardson of a severe frozen shoulder condition is one which I accept.
32 I also accept that this condition arose out of or in the course of the plaintiff’s employment with the defendant. Associate Professor Richardson took a history of the injury arising out of the work with the vacuum cleaner and was of the belief that this was a WorkCover established claim. Certainly he has in no way challenged the proposition that the left shoulder and arm injury arose out of the work with the vacuum cleaner and was thus employment-related. Mr Kossmann has directly implicated employment, referring to the shoulder injury as being new as a result of the plaintiff’s work and to the subsequent work-related aggravation of it. Dr Barr, who has seen the plaintiff on many occasions, has stated more than once that the plaintiff’s injuries (including her shoulder injury) are consistent with the stated cause, which he has recorded as being manual cleaning duties and in particular since October 2015. Dr Davison saw the situation as being one of temporary exacerbation, whilst Mr Jones, also examining on behalf of the defendant, has referred to the condition as arising spontaneously.
33 As stated, I accept the plaintiff as a witness of truth generally and in relation to the circumstances of the onset of symptoms. I accept her evidence, along with the opinion of Dr Barr and the implicit acceptance of Associate Professor Richardson that this was a workplace injury. Of course, it is the explicit opinion of Mr Kossmann. I would also point out that her original history, given to Dr Sleaby on 5 May 2016, was of having to vacuum and mop heavy rubber mats at the Swinburne University gymnasium and as a result, she presented with left shoulder pain.
34 In those circumstances, that a workplace injury did in fact occur seems to me to be a logical and acceptable conclusion. In all these circumstances, I reject the proposition of Mr Jones that the injury arose spontaneously. The overwhelming weight of the evidence, and the evidence which I prefer, is against such a conclusion.
35 In summary, I am satisfied that the plaintiff has established that her ongoing left shoulder and arm disability, being effectively a severe frozen shoulder condition, is causally linked to her employment with Achievement.
36 I am not of the view that the plaintiff’s left shoulder and arm condition represents the aggravation of a pre‑existing condition. Even if it were so, there is no suggestion that the plaintiff previously suffered from any relevant symptoms and this has been conceded by the defendant. In short, I am satisfied that the causative link between the accident and the plaintiff’s left shoulder and arm injury has been established and that, even if this did represent the aggravation of a pre‑existing condition (a suggestion concerning which I am far from convinced), such condition was previously asymptomatic.
37 I am also satisfied that the consequences of the injury to the left shoulder and arm are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Barr has described the plaintiff’s prognosis (for all relevant injuries) as being extremely guarded. Mr Kossmann has described the prognosis in relation to the left shoulder joint as being poor. The relevant symptoms have now been in existence for in excess of three years. Mr Jones, examining on behalf of the defendant, stated that the course of the plaintiff’s rotator cuff degenerative disease and supraspinatus calcification is likely to be one of varying degrees of shoulder pain and stiffness in proportion to demands made on the joint. Further, in the future, there is a possibility of a significant spontaneous tear occurring in the tendon with increasing age. On balance, I am satisfied that the requirement of permanence has been satisfied. I note that there was no forceful, if any, submission to the contrary. Neither in the opening definition of issues on behalf of the defendant nor in the outline of submissions to which Mr Moulds spoke in his closing address is permanence raised as an issue. In any event, I prefer the opinions of those treating the plaintiff and who have seen her on many occasions to that of Dr Dawson to the effect that what occurred was a temporary aggravation.
38 I turn now to the issue of disentanglement and firstly of psychological and psychiatric consequences. Pursuant to s325(2)(h) of the Act, psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition and not otherwise. That the plaintiff has suffered psychological or psychiatric consequences seems beyond argument, but they shall not be considered in relation to the left shoulder and arm injury.
39 Associate Professor Richardson is the specialist who has dealt with the plaintiff’s left shoulder and arm conditions. Clearly, he has been aware of the plaintiff’s mental state. In his report of 23 January 2019, he noted that the plaintiff was seeing Dr Kumar, psychiatrist, for assistance. He also stated that it was important to get on top of the plaintiff’s depressive symptoms. However, in his recent report of 22 February 2019, he confined his views to those based on physical symptoms. He referred to the plaintiff’s frozen shoulder condition as being severe. He also stated as follows:
“If the shoulder was as stiff today as it was when last reviewed by me in June 2018 Ms Telecki would not have work capacity…”
40 He went on to say that he was not up-to-date with the plaintiff’s current clinical signs and recommended the obtaining of a report from Dr Barr. That was done. Whilst making a passing reference to psychological effects, Dr Barr, in his report of 24 February 2019, stated that he had read the opinion of Associate Professor Richardson and agreed that the ongoing severe dysfunction was not compatible with meaningful work capacity.
41 Given that Associate Professor Richardson appears to have been confining his observations to the plaintiff’s physical condition and to the shoulder in particular, Dr Barr, having read that opinion and agreeing with it, would seem to me to be also expressing his opinion on the basis of physical dysfunction and of the shoulder in particular. If that be so, both the plaintiff’s current treating general practitioner and the specialist who has treated her for her shoulder condition would appear to be arriving at their conclusions on the basis of the plaintiff’s physical condition, focussing on that of the left shoulder. Both are of the view that, because of it, the plaintiff has no meaningful work capacity. I accept this.
42 The plaintiff’s treating psychiatrist, Dr Kumar, has looked at the plaintiff’s mental condition in isolation. He has expressed the opinion that he does not believe that she has any capacity for employment, including pre-injury employment, because of her psychiatric condition as a result of her employment only. In other words, he has opined concerning the plaintiff’s psychological or psychiatric consequences in isolation from the physical consequences.
43 In short, there is ample material which enables me to view the consequences of the physical injury to the plaintiff’s dominant arm in isolation and without reference to the psychological or psychiatric consequences.
44 The same could be said about any injury to the plaintiff’s spine. Associate Professor Richardson treated the plaintiff only for her left shoulder and arm condition and has opined accordingly.
45 Mr Thomas Kossmann, orthopaedic surgeon, who saw the plaintiff for medico-legal purposes, specifically looked at each of the plaintiff’s physical injuries separately. He described her as having a severe form of frozen shoulder on the left side and there being a poor prognosis. He considered that the plaintiff’s left upper limb problem had a major impact on her employability, but also on her social, domestic and recreational activities.
46 Dr Davison, examining on behalf of the defendant, initially reported on 16 June 2016 solely in relation to the left shoulder and arm injury, whilst in his later report of 11 August 2016, he seems to have concentrated almost entirely upon spinal complaints. Whilst he has done this, as earlier stated, I prefer the views of those reporting on behalf of the plaintiff. Be that as it may, the medical material to which I have referred permits me to disentangle the consequences of the left shoulder and arm injury from the consequences of any spinal injury or condition. I have done this both in relation to organic consequences and to those of a psychological or psychiatric nature.
47 In summary, the opinions which I have expressed and the conclusions at which I have arrived are based upon reports concerning the organic injury to the plaintiff’s left shoulder and arm. I accept the opinions of those treating the plaintiff that the consequences of such organic injury have left the plaintiff with no meaningful work capacity. I prefer their opinions, both as to capacity for suitable employment and generally, to those of Dr Davison and Mr Jones.
Other developments since the injury
48 As stated, the plaintiff briefly attempted to work as a Uber driver, but was unable to continue with this work. She has not engaged in any other employment. Her superannuation payments have now ceased and essentially she is living on Centrelink benefits. No evidence concerning alleged suitable or alternative employment was placed before me by the defendant. A report from Flexi Personnel of 25 January 2019 formed part of the plaintiff’s evidence. The conclusion reached was that her dependence on her physical capacity for employment is no longer a viable option, although this description includes both shoulder and spinal complaints.
49 In any event, the plaintiff has not returned to employment and the opinions of Associate Professor Richardson and Dr Barr would appear to preclude her from this on the basis of the left upper limb injury alone.
Ruling – the injury to the left upper limb and the plaintiff’s capacity for suitable employment
50 As is evident from the above, I am of the view that the consequences of the plaintiff’s injury to her dominant arm, viewed in isolation, have destroyed her capacity for employment. I am of the view that, bearing in mind that injury, no suitable employment exists and that this will be the situation for the foreseeable future. I prefer and accept the evidence of those who have treated the plaintiff.
51 In arriving at that conclusion, I have taken into account the various matters set out above. I am of the opinion that the injury to the plaintiff’s dominant arm has rendered her totally and permanently incapacitated for employment within the meaning of the Act.
The injury to the spine and the psychological or psychiatric injury
52 Given my finding in relation to the left shoulder and arm, there is no need for me to give specific rulings in relation to the plaintiff’s spinal injury and the psychological or psychiatric injury. I would point out that her treating psychiatrist, Dr Kumar, has stated in his report of 11 December 2018, that the plaintiff developed a major depressive disorder in the course of her employment with Achievement and that her symptoms were consistent with the stated cause. He did not believe that she had any capacity for employment, taking into account her psychiatric condition only. He thought that the long-term prognosis was poor and did not believe that she would be capable of any work in the future.
53 Dr Ash Takyar, consultant psychiatrist, who examined the plaintiff at the request of her solicitors on 19 November 2018, arrived at a conclusion that, from a psychiatric perspective, her capacity for employment was now reduced to around five hours per week or less and that her prognosis is guarded. Bearing this in mind, it seems to me that the plaintiff would have discharged the burden of proof in relation to her reliance upon paragraph (c) in any event.
54 In relation to the plaintiff’s spinal injury, she has been seen by Professor Richard Bittar, orthopaedic surgeon, both for medico-legal purposes and for treatment. In his recent report of 23 January 2019, he specifically stated that the plaintiff has no capacity for pre-injury employment or suitable employment. Whilst this is not a view shared by Dr Davison, Mr Jones, also examining on behalf of the defendant, simply stated that the plaintiff’s history was one of fairly continuous disabling neck and lower back pain requiring treatment and forcing her to give up her former employment. In any event, were it necessary, I would find that she had also discharged the burden of proof in this regard. However, as stated, it is unnecessary for me to move on to consideration of injuries other than that to the left upper limb.
Pain and suffering
55 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and to various decisions of this Court.
56 In any event, the obvious impact upon the plaintiff’s everyday life emanating from her dominant arm injury alone is sufficient to satisfy the statutory requirements. She has sworn as to the fact that the pain in her left shoulder and upper arm is there all the time; that the pain in her left shoulder has wrecked her life; that she cannot do housework properly anymore; that the injury to her left shoulder has made it very difficult for her to get adequate sleep; and the like.
57 The consequences of the physical injury to the left upper limb alone, and leaving to one side those of a psychological or psychiatric nature and the injury to the spine, could be fairly described as being more than significant or marked and as being at least very considerable. I would refer to the affidavits of the plaintiff. The consequences of the injury to her dominant arm have had a very substantial adverse impact upon her wellbeing and upon her day to day activities.
Conclusion
58 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
59 I shall hear the parties as to any ancillary orders that are required.
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