Toskic v Victorian WorkCover Authority
[2019] VCC 393
•3 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03455
| JULIATI TOSKIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2019 | |
DATE OF JUDGMENT: | 3 April 2019 | |
CASE MAY BE CITED AS: | Toskic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 393 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right upper limb – cervical spine – psychiatric impairment – disentanglement - pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd& Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C B Thomson | JK Lawyers & Co |
| For the Defendant | Ms G-J Cooper | Wisewould Mahony |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to the plaintiff’s work with Placard Pty Ltd (“the employer”), particularly in February 2016 (“the said period”).
2 Counsel for the plaintiff indicated the impairments relied upon were the spine – an aggravation of cervical spondylosis and the right upper limb – including bursitis with impingement in the shoulder, tendinosis and epicondylitis in the right elbow.
3 There was also an impairment pursuant to sub-paragraph (c), being a Severe Adjustment Disorder with Anxiety and some Depression.[1] That application did not include a Chronic Pain Syndrome.[2]
[1]Transcript (“T”) 1
[2]T27
4 The applications related to the course of employment with the symptoms really coming on in February 2016.[3]
[3]T4
5 Counsel for the plaintiff submitted “the degenerative changes in the neck perhaps seem to be, in some ways, more significant, but it is a complex case in that it involves the entire side of the right upper quadrant of the body, the neck through the shoulder into the arm, so there is involvement of both the arm and the neck, and they are especially prone to exacerbating the injury with repetitive tasks, with lifting and so forth”.[4]
[4]T1
6 Counsel for the defendant submitted there were disentanglement issues raising the principles in Meadows v Lichmore;[5] however, it was conceded that the pain and suffering consequences claimed by the plaintiff were “serious” if they were accepted as organically based.[6]
[5]Supra. T3
[6]T41
7 While there was a lot of affidavit material about injuries to various parts of the plaintiff’s body, including her neck, prior to the said period, it was not suggested by the defendant this was an aggravation case where the principles in Petkovski v Galletti[7] apply.
[7][1994] 1 VR 436
8 By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 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.
12 The judgment of the Court of Appeal in Mobilio v Balliotis[8] resolved the meaning of “severe”. Brooking JA held, having referred to the considerations mentioned in Turner v Love and Transport Accident Commission,[9] 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”.
[8][1998] 3 VR 833 at 846
[9](1995) 21 MVR 314
13 Winneke P, in Mobilio,[10] 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.[11]
[10]Mobilio v Balliotis (ibid) at 833
[11]See also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect
14 In this application, where there is a claim for loss of earning capacity, that loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[12] and Grech v Orica Australia Pty Ltd & Anor[13] in reaching my conclusions.
[12](2005) 14 VR 622
[13](2006) 14 VR 602
18 The plaintiff swore three affidavits and was cross-examined. Further, she relied on an affidavit sworn by her daughter, Hana, on 5 December 2018 and a co-worker and friend, Josie Lee, sworn 11 December 2018. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
19 The plaintiff is forty-seven, having been born in July 1970 in Indonesia. She migrated to Australia in about July 2005. She is divorced and lives with her twenty-five-year-old adult daughter, Hana.
20 The plaintiff completed high school in Indonesia. She then attended university, studying Information Systems Management and Computer Science - a four-and-a-half-year course. After three years, she had to stop studying to look after her family’s business when her father passed away.
21 The plaintiff then managed the family business, “Chandra” for three years. The business built electricity generators and sold them.
22 The plaintiff then worked at “Nippon Pain” as a national executive sales representative for three to four years. That business supplied paint to big companies. She then worked at “Sonara” as a manager for six to seven years. She was second in charge of 255 workers at a factory that made light fixtures. This was a desk job that did not involve much physical exertion.
23 The plaintiff’s next job was as a restaurant manager for two to three years. The restaurant she managed in Indonesia did not require any hands-on work which is not the situation with restaurant management in Australia.
24 The plaintiff then met her ex-husband and he brought her to Australia in about July 2005.
25 On or about 14 December 2005, the plaintiff started working with the employer on a casual basis, doing manual work, becoming full time on 6 March 2006. She was in good health prior to commencing that job.
26 Prior to 17 February 2016 (“the said date”), the plaintiff enjoyed cooking for the homeless every Sunday, and regularly going out shopping, as well as catching up with friends. She regularly went for long and energetic walks. She was able to undertake all her domestic activities with ease.
27 The plaintiff deposed that as a result of her work duties, she suffered a right arm, right elbow, right shoulder, neck and mental injury on or about the said date and by way of gradual process which was exacerbated following her attempts at returning to work. She also suffered a lumbar spine injury in or about June 2000 and by way of gradual process over the course of her employment with the employer.
28 In her first affidavit, the plaintiff described in great detail her work hours and duties as:
· a picker and packer from December 2005 to December 2006 (back injury)
· a machine operator from December 2006 to December 2008 (back injury)
· a machine operator and vault controller from December 2008 to January 2016 (neck injury).
29 The plaintiff also described eleven separate injuries between February 2007 and February 2016. These involved her right knee, right ankle/heel/foot, lumbar spine, left foot, left elbow, left arm and left wrist.
The compensable injury
30 In early February 2016, the plaintiff had just returned to work from her holiday. Her team leader, Rhys Rogers, told her that they had a super urgent job of about 125,000 units of cards that was due at the end of January 2016. She was required to sort out the problems in the completed units and then finish the remaining 100,000 units as soon as possible as the employer was already facing penalties for late delivery.
31 On 17 February 2016, after four days having not only sorted out the problems with the 20,000 units, but also completed 84,000 units, the plaintiff’s right arm became sore, with shooting pain from her neck and the top of her right shoulder, down to her fingers (“the pain”).
32 The plaintiff told the team leader, Chris Harvey, that her right arm was sore. He told her to take it easy. She completed her eight-hour shift and went home. That night, but she could not sleep because her right arm was throbbing with the pain.
33 The following day, the plaintiff told Chris Harvey that her right arm was a bit swollen, and of her trouble sleeping. He again told her to take it easy and that they would help her get the card and the stock to her machine.
34 The plaintiff worked through the pain and managed to complete her shift and completed that outstanding job. When she arrived home, she could not sleep at all. Her right arm became swollen, and she experienced shooting pain from her neck and the top of her right shoulder, down to her right fingers. She applied an ice pack but it did not relieve the pain.
35 On 19 February 2016, the plaintiff told Chris Harvey and Rhys Rogers that her right arm was completely swollen. She asked Rhys Rogers if she could run one machine only. He advised her they could not afford to have one machine idle, so the plaintiff had to run two machines. Each machine went through 10,000 cards in a shift, so doing two machines meant that she did about 20,000 cards. She completed these tasks but could not finish the side jobs allocated to her. She recalled holding a tray of cards with her right arm and because it was so sore, she dropped the tray. She did not tell anyone about this as it was already 9.30pm. She told her colleague, Amir, that her arm was sore and so she needed to go home and did so about 30 minutes before her shift ended. No team leader was still at work at that time.
36 On 20 February 2016, the plaintiff called Chris Harvey and told him what had happened the previous day and that she could not finish her shift. He told her to go and see the doctor. As her regular doctor was not available, the plaintiff saw another doctor, who suggested Voltaren tablets and cream, to put her right arm on ice and if it was still not good, then to come back on Monday.
Treatment for the right elbow, right arm, right shoulder and neck injuries[14]
[14]May 2018 – first affidavit
37 The plaintiff regularly saw her general practitioner, Dr Sivahamy Inpanathan, who organised an ultrasound and x-ray of her right elbow on 4 March 2016 and a cervical CT scan on 8 April 2016.
38 Dr Inpanathan referred the plaintiff to neurologist, Mr Myron Rogers, and to neurologist and electromyographer, Dr Saman Punchihewa, whom she saw in about June 2016.
39 The plaintiff was also referred to neurologist, Dr John Ly, whom she saw in about June and July 2016. He requested an MRI scan of the plaintiff’s brain, which was carried out on 3 August 2016 in Indonesia whilst she was visiting her mother at the hospital there. Because the image was not very clear, the plaintiff’s mother’s neurologist requested a whole spine MRI scan, carried out in Indonesia on 10 August 2016.
40 Dr Inpanathan also referred the plaintiff to orthopaedic surgeon, Mr Ash Moaveni, who arranged a cervical MRI scan undertaken on 2 June 2016 and an MRI scan of the right elbow undertaken on 12 September 2016.
41 Neurologist, Stephen Ng, organised an MRI scan of the plaintiff’s right brachial plexus and MRA brachial artery, undertaken on 19 September 2016, and an MRI scan of her right forearm muscles, undertaken on 25 January 2017.
42 The plaintiff had physiotherapy treatment weekly between February and August 2016 with the employer’s physiotherapist, until funding ceased. She also had physiotherapy weekly from February 2016 to February 2017 from Cameron Brown, and fortnightly, from February 2017 to September 2017, from Mrs Kilpatrick, community physiotherapy;
43 From October 2017 to December 2017, the plaintiff had no physiotherapy. Her condition deteriorated and she could not turn her head 90 degrees. She resumed treatment monthly from January 2018 with Cameron Brown. Every three months, from July 2017 to date, she also has physiotherapy with Dr Abraham, occupational physician from the Pain Management Clinic.
44 The plaintiff had received regular treatment for her mental injury from Dr Inpanathan, who referred her to see Michelle Wong, psychologist. She saw Ms Wong about ten times in 2017.
45 The plaintiff had received treatment regularly up to about 2010 or 2011 from Dr Jing-Yi Shy, general practitioner.
46 With respect to the plaintiff’s right elbow, right arm, right shoulder and neck injuries, she had taken the following medication:
(a) Voltaren, from February 2016 to April 2016. It did not stop the pain.
(b) Lyrica, from about May 2016. This was to numb the brain so that she would not feel pain. It reduced the pain generally but whenever she used her right arm, it did not work and she felt pain. She ceased taking it three times but each time the pain returned. In July 2016, her dosage was increased. Lyrica made her sleepy but if she did not take it the shooting pain returned.
(c) Mobic, August 2016. She took it once to reduce the pain. It worked. She could not take it too often because it raised her blood pressure.
47 With respect to the plaintiff’s mental injury, she had taken the following medication:
(a) Venlafaxine (two times a day) and Elaxine (two times a day), from August to September 2017 on the advice of the pain management doctor. The medication made her feel so sick that Dr Inpanathan advised her to stop taking it.
(b) Coversyl (once a day) from October 2016 to December 2017.
(c) Endep (once a day) from November 2017, an anti-depressant and blood pressure control tablet. It worked but made her slow and sleepy all the time and it made it hard for her to concentrate.
(d) Clonidine (two times a day) from January 2018, an anti-depressant/high blood pressure tablet which had the same side effects as Endep.
48 The plaintiff had taken painkillers for her lumbar spine injury.
Pain and suffering from injuries
Right elbow, right arm, right shoulder and neck[15]
[15]First affidavit
49 As of May 2018, the plaintiff had constant, though varied, pain in those areas unless she took Lyrica, which reduced the pain; however, even when using that medication, she had nausea and pain, which interfered with her sleep.
50 The plaintiff was then frustrated by her injuries and incapacity. She had previously enjoyed work in a demanding role and she was very frustrated, having to cease work as a result of her injuries, as she was previously quite healthy and active.
51 The plaintiff was then keen to return to work and made every reasonable attempt to do so; however, she was forced to stop due to pain from her injuries becoming unbearable. Even light duties with the employer caused her too much pain and she had to cease the alternative sheltered employment.
52 As a result of these injuries, the plaintiff’s ability to branch out into other types of employment within her physical capacity had been severely limited. That situation had left her very disappointed. She could no longer work as a manual worker and that made her feel useless and upset.
53 The plaintiff had no experience in hospitality or retail management in Australia. She could not do cleaning because of the arm movements involved, and without full and free use of her arms, she had little prospect of obtaining other employment in Australia. She could not do telephone calling because she could not sit for long periods because of all her pain and she had problems concentrating because of that pain, as well as her medication.
54 The plaintiff had ongoing problems with sleep. There were also very significant problems with self-care and personal hygiene, with difficulties washing her hair, scrubbing her back in the shower, cutting her nails and dressing.
55 The plaintiff also had increased pain with activities such as carrying and lifting, pushing and pulling, reaching, trimming plants, writing over two pages, typing for over twenty minutes and using chopsticks.
56 The plaintiff’s injuries had also very significantly affected her mobility, endurance and reliability, with problems driving for long periods and sitting on a plane.
57 As a result of her injuries, the plaintiff’s ability to participate in individual or group activities, sports and hobbies had been adversely affected.
58 The plaintiff could no longer cook for the homeless because it caused right arm pain. She tended to shop less due to the limited use of her right arm and tended to use her left more and did not carry heavy shopping. She was also quite dependent on her daughter to perform activities in and out of the house that she used to do quite independently.
Mental consequences
59 The loss of ability to work and very significant diminution for physical capacities and endurance struck at the core of the plaintiff’s identity and she felt a liability to those around her.
60 In May 2016, the plaintiff started to get anxiety and later, severe anxiety attacks, with shortness of breath, trembling, as well as dizziness. She was advised by her doctor to talk to a psychologist, so from August to October 2017, she was “okay” in terms of anxiety; however, in November 2017, the anxiety returned and it had remained.
61 The plaintiff also had pain and difficulty sleeping as a result of her work-related lumbar injury. It also caused problems with self-care and personal hygiene, physical activities and travel.
Work
62 Before the injury, the plaintiff was earning, on average, $1,895 a week. Save for a couple of attempts to return to work with the employer, she had not been able to earn any income since the injury. But for her injuries in February 2016, she would have continued working until she reached retirement at age sixty-seven.
63 The plaintiff deposed in great detail as to all absences from her employment and the periods of alternative or modified duties as a consequence of her injuries.
64 In short, these included a number of returns to light duties in 2016 until August that year; however, during that time, the plaintiff experienced shooting pain, a tingling sensation and numbness from her right jaw down to her fingers. She advised the employer’s human resources manager, who told her to ask her general practitioner what they could do to get her back to work.
65 Dr Inpanathan certified the plaintiff unfit and the employer’s agent gave her a notice terminating her weekly payments and medical expenses. The matter was referred to conciliation.
66 The plaintiff made further attempts to try and get some duties in late 2016. In December that year, she asked the manager if she could try again to go to work, but was told they did not have anything for her.
67 On 3 January 2017, the plaintiff received an email from Mark Howden from the employer, stating they did not have a suitable role for her, and her employment was formally terminated in November 2017.
68 As a result of her inability to find work, the plaintiff had enrolled in a Diploma in Leadership and Management at Monash (“the course”), which was to start on 20 February 2018, and was anticipated to finish in June 2018. It involved fourteen hours at university per week, as well as homework.
69 The plaintiff’s pain was exacerbated when writing with a pen with her right hand or typing on a laptop. She had difficulty concentrating because of the ongoing pain in her right elbow, right arm, right shoulder and neck. She then did not know whether she could successfully complete the course and even if she did so, if she would be able to obtain employment because of her continuing problems.
70 The course involved vocational training to refresh the plaintiff’s previous experience and increase her qualifications with the hope of finding another job. While doing the course, her lecturer suggested she do an MBA.[16]
[16]T18
71 The plaintiff had “very big depression” prior to the course but she was happy to do it, although it was very difficult with the typing, taking notes and things like that, but she felt there was hope for her.[17]
[17]T18
72 As at December 2018, the plaintiff had applied for many jobs, but was yet to find one. She was then basically suited only for manual work, which was likely to exacerbate her injuries. She had completed the course. Doing so was difficult as she was drowsy with the medication and she had to avoid overuse of her arm.
73 The plaintiff continued to attend her general practitioner on a more regular basis during the course to get help for increased pain from studying and typing. Various medications were suggested to control pain. She was able to complete the course, because she was able to complete assignments over an extended period of time.
74 In about July 2018, the plaintiff commenced an online MBA through the Australian Institute of Business (“the MBA”). In late 2018, she was coping reasonably well. There was a week off before each block of study. She could do her assignments progressively over a period.
75 The plaintiff had an injection just before the first exam in August 2018, and was given longer to do the exam.[18] She needed most of the following week to recover; however, doing the exam was still very debilitating. She was then hopeful, by keeping up with further injections and managing with her activities, that she would be able to complete the MBA.
[18]T22
76 The plaintiff experienced problems at the end of doing each exam with her right arm, elbow and neck. This eased a week after each exam.
77 The MBA finishes next July. Then, the plaintiff “hopes to find a job or start it” to fix her financial problems, which are now very bad. She is thinking about any job that would not really aggravate things. Maybe something not that physical. She had no idea at the moment, but was really hoping to find a job.[19]
[19]T19
78 The plaintiff has to do nineteen hours of study in the two-year MBA.[20] She agreed she told Dr Kaplan that the studies had helped her emotionally, but the feeling of uncertainty was still there.[21]
[20]T17
[21]T17
79 With continuous typing, the plaintiff’s arm swells and all the symptoms flare up like an electric shock around her jaw area radiating to the shoulder and neck and then the throbbing and shooting pain around the shoulder to the upper arm.[22]
[22]T23
80 The plaintiff has done three, three-hour exams to date and has done four assignments. She has another exam in two weeks. There is a lot of typing in the assignments: 1,500 to 2,500 words. She usually does an assignment over seven weeks, so she types a little bit and then reads lot, and does not do it in one go. She has done all outstanding assignments. Dr Voselis helped her prepare for the exams.[23]
[23]T23
81 The plaintiff applied for a government job as an administrative officer last year, that probably did not involve a lot of physical work. Although the typing still concerned her, she would try to work.[24]
[24]T19
82 In re-examination, the plaintiff explained this government job was attractive to her, because the government could accommodate her, while the private sector could not.[25] The advertisement for that job on the internet encouraged people with a disability. She got an interview but did not get the job.[26]
[25]T19
[26]T20
Recent treatment
83 The plaintiff had not really attended a pain management clinic from August to December as she earlier deposed, although she attended the Angliss Pain Management Clinic for eight weeks from March 2018, where she learnt coping techniques.
84 Dr Inpanathan had referred the plaintiff to a physician, Dr Henry Voselis, who told her she had a trapped nerve in her right shoulder. He advised there was no cure, but suggested a second injection, which the plaintiff had in August before her first exam. It was extremely painful, but it did reduce the pain and it had not been anywhere near as painful when at rest and when sleeping. As the pain had reduced, so had her stress and anxiety. She was sleeping better with fewer interruptions and needed less medication. Since the first injection, she had reduced Lyrica from 300 milligrams to just 75 milligrams, leading to an improvement in her concentration. Recently her physician urged her to defer the next injection as long as she could.
85 Dr Voselis told the plaintiff the shoulder injections could last for two or three months. Despite the injection, the plaintiff still experienced pain and the nausea after the throbbing and shooting pain. The symptoms in her arm are not much different to previously, when she took Lyrica, but with the injection she could concentrate more.[27]
[27]T25
86 Although the plaintiff had to increase her analgesic medication while doing the diploma at Monash, she had not been able to reduce it since having the injection.
87 Since early 2018, the plaintiff had ceased taking antidepressants. Instead, she was being prescribed Catapres/Clonidine, which she thought acted as both an antidepressant and blood pressure medication. She thought that had also contributed to her drowsiness. Again, since having the injection, that drug had been changed to what she believed was a milder blood pressure controlling tablet, Coversyl.
88 The plaintiff’s neck was not painful when at rest, but felt stiff and heavy. When driving, she has to turn with almost her whole body and cannot simply turn her head around. If she does that too quickly it can cause her to black out for several seconds. This had happened a couple of times since her injury, once in her doctor’s consulting room.
89 The symptoms in the plaintiff’s neck, shoulder, arms and elbow are much reduced after the August injection, and so long as she does not use her arm for any forceful or repetitive activity. She gets by through only cleaning her house every few weeks. She no longer goes out socially much at all.
90 The plaintiff has continued, and perhaps increased, her power walking, walking at least 5 kilometres most days, as suggested by the pain management clinic. When doing so, she keeps her right arm close to her body.
91 The plaintiff is coping better with her injury than she was in the year immediately after it but she still has to live a very limited life. If she can get work, it will be in a different field and she will always have to be careful she does not aggravate her arm and shoulder. She is concerned it would be very difficult to find an employer willing to take her on those terms.
92 The plaintiff’s social activities are very much reduced because she does not feel like going out and she is concerned that she will injure her arm and perhaps bring on the need for a further injection sooner than she would have otherwise required.
93 The plaintiff agreed she told Dr Karna she was involved in a life group at the local church where she had a number of friends. She still saw her daughter. She regularly attended church, except when study prevented her. She power walked before for about 5 or 6 kilometres a day and had reduced, now, to about 4 kilometres.[28]
[28]T17
94 The plaintiff is no longer the happy and confident woman she previously was. She is learning to live with her injury, which she thinks will be permanent.
95 In her further affidavit of 6 February 2019, the plaintiff commented on the report of Dr Bones, occupational physician, and also the Recovre Suitable Employment Report.
96 The plaintiff explained to Dr Bones that if she pushed herself to do more typing than reading, she would be in pain the following day. Also, after prolonged typing after doing assignments and exams, she has three or four days of nausea, with her body aching and sleep difficulty due to the pain going from her neck, shoulder and arm down to her fingers.
97 The plaintiff has observed that her right arm is smaller now than it was three years ago when it was quite developed from doing quite heavy work and repetitive movements involving heavy loads six days a week, mostly with her right arm.
98 The plaintiff thought the three jobs mentioned in Dr Bones’ report are heavier than the lighter ones available with the employer which aggravated her symptoms and led to the termination of her employment.
99 The plaintiff noted that the Recovre report did not include the ultrasound of her right shoulder on 26 July 2018. Further, it was incorrect that she had previously worked in retail sales.
100 In response to the suggested warehouse clerk role, the plaintiff explained she experiences pain, numbness, shooting pain and throbbing and swelling in her neck and face down to her right arm to her fingers when typing and undertaking assignments. Even with the steroid injection to her shoulder that was meant to ease the pain, she experienced significant difficulty lifting her arm after undertaking the exams and also experienced sleeping difficulties, nausea and body aching for several days after due to pain.
101 The plaintiff could not cope with the significant data entry required in fear that it would worsen her pain and condition. Routinely, printing and filing papers into binders and filing drawers was repetitive and that worsened her pain. A critical work demand was that workers carry binders weighing up to 3 kilograms. When she carries a 2‑litre bottle of milk she experienced shooting pain in her right arm.
102 The plaintiff noted Dr Bones recommend a weight restriction of 500 grams upon which Recovre supposedly based its report.
103 In terms of the operations administration production clerk role, the plaintiff repeated her complaints of pain and numbness in doing the type of activities described in the warehouse clerk role and she did not think she could cope with the data entry required. The task of reaching to post printed materials on the board would be difficult, as each time she reaches over her, she has shoulder pain. Sorting mail is repetitive work, which worsens her pain. Again, a critical work demand for this job was lifting up to 2 to 3 kilograms, and she had lifting problems referred to in terms of the warehouse clerk job.
104 The plaintiff raised similar concerns about the despatch packer role.
Timing and nature of initial complaints
105 Cross-examination focused on the plaintiff’s initial complaints to doctors of her work-related injuries.[29]
[29]T6
106 Dr Inpanathan’s note of 22 February 2016 reads:
“On Wed 17th was at work at a printing shop and hurt her right forearm up to her lateral elbow – Tends to do repetitive movement of her right arm at work, printing thousands of cards in four days – On Thur it was more sore and over the weekend it was throbbing and finding it hard to lift anything with that arm – She told her supervisor on Friday.
O-E: Right elbow: tenderness lateral epicondyle++
Reduced ROM.
Tender to resisted extension of wrist.”[30]
[30]In her 2016 report, Dr Inpanathan noted the plaintiff also had pain on the right side of her neck and numbness down her arm and facial numbness.
107 While Dr Inpanathan did not really mention it and only noted elbow pain, the plaintiff felt all her right arm was painful then. The swelling the doctor saw was in the elbow, but the plaintiff felt pain everywhere.[31]
[31]T7
108 Of 7 April 2016, Dr Inpanathan noted:
“Has been seeing the physio, who feels like the pain may also be related to a pinched nerve in her neck (as well as the elbow tear) as the right side of her neck hurts and is having headaches, he had told her that he was going to contact me regarding getting a CT scan of her neck – going to see the WorkCover doctor on 5 May.
O/E: Right elbow: tenderness lateral epicondyle++ and also around the muscles around that area, extension and flexion of her wrist is slow and hurts, tender to resisted extension of wrist.
Reason for contact: WorkCover – plan: CT C spine and review next week – off work for another two weeks. Diagnostic imaging requested: CT –spine cervical.”
109 When it was suggested to the plaintiff this was the first complaint of neck pain, she said she complained to her boss in early March, telling him of throbbing and pain, swelling and “everything in the neck” and he suggested she go to the general practitioner and have it checked. The physiotherapist who the plaintiff saw for her right elbow told her because there was no improvement, the pain probably was not in the elbow and “there was something else happening in there.”[32]
[32]T9
110 Although she made no note of it, Dr Inpanathan said probably because of the pain in her elbow, the plaintiff would feel pain everywhere.[33]
[33]T9
111 The cervical CT scan in April came about because of the pain. The plaintiff told the physiotherapists about it, and as the pain did not improve with treatment, Mr Brown suggested she get the MRI scan. Mr Harry was focussing on her arm and Mr Brown more the shoulder, as they specialised in those fields.[34]
[34]T22
112 The plaintiff also felt pain in shoulder at the time of the 7 April 2016 visit.[35]
[35]T8
113 When it was suggested to the plaintiff that she first complained about her shoulder to Dr Voselis in the middle of 2018, she said she had had shoulder pain “since the first time” but the doctor did not know who to refer her to. It was not until she was studying and typing for fifteen minutes last year, that she then experienced this very severe pain and she was again referred to Dr Voselis last year.[36]
[36]T10
114 Dr Voselis then sent the plaintiff for a CT scan, which showed the bursitis. She had earlier had a brachial plexus MRI scan, “but there was nothing in there”. The CT scan was the first investigation of her right shoulder.[37]
[37]T11
115 The plaintiff attended physiotherapist, Mr Harry, in 2016, who was like the employer’s onsite physiotherapists. She also saw Mr Brown at the same clinic.[38] She mentioned problems with the shoulder to both practitioners. Even at that time they tried to massage her neck. That made her feel dizzy and she advised them of this by email in about March or April.[39]
[38]T21
[39]T22
116 The plaintiff could recall discussing her shoulder with Dr Stockman in March 2017. She told him she had pain in the tip of the shoulder, the middle and the upper arm. He did not mention she needed any investigations.[40]
[40]T20
Current pain
117 The plaintiff described her current pain as follows:
“[D]ay to day basis I feel like the numb and the pin and needle around this neck, and then the shoulder bit is like shooting pain intermittently.”[41]
(sic).
[41]T11
118 The plaintiff also described tightness in the upper arm, going from the shoulder. There is a shooting pain on the top of her thumb on the side, and numbness on the top of her fingers on the right side. There is like pins and needles and it is numb when she touches her face - “it’s like uncomfortable”. There is numbness under her face going “down the jaw, the shoulder”.[42]
[42]T12
119 There is stiffness and pain going down over the top of the plaintiff’s shoulder. Her arm is stiff.[43] If she uses her elbow for cooking or typing, or something like that, then it will become swollen. She feels pain in her elbow and it is like a lump in there.[44]
[43]T20
[44]T30
120 Mostly, when the plaintiff uses her forearm, there is pain in the upper arm, the tip of her shoulder, the jaw, the neck, especially around the back of neck on the right side. She felt like she is “being choked from behind or something like that”.[45] If she uses her arm excessively, like doing an exam, she experiences nausea and things like that. She feels very uncomfortable, like all her body is aching.[46]
[45]T13
[46]T13
121 With activities such as typing and cooking, especially when lifting, the plaintiff has shooting like pain and she might drop the things she is carrying.[47]
[47]T13
122 The plaintiff uses her right arm every now and then. When she attended pain management they taught her how to pace herself and she tried to stick to that all the time, but she did use it because she did not want to be “in a vegetable state or something like that” with her right arm. She has pain whenever she uses it.[48]
[48]T13
Current treatment
123 The plaintiff is seeing psychologist, Michelle Wong. She no longer takes antidepressant medication – Elaxine, Venlafaxine, Endep and Clonidine – because it did not agree with her.[49]
[49]T14
124 The plaintiff was on Endep for quite a while, but she could not remember who took her off it. It had been prescribed by pain management. She could not remember Cymbalta being suggested at that time. She was prescribed Catapres/Clonidine, which was supposed to help with her blood pressure and also calm her down.[50]
[50]T15
125 After Endep was stopped, Dr Inpanathan suggested the plaintiff go back to the psychologist instead of taking medicine.[51] The doctor suggested Catapres could help, but it was milder than the Endep. After a few months, Dr Inpanathan stopped prescribing it. The plaintiff stopped taking that medication for her depression and went to Ms Wong.[52]
[51]T15
[52]T16
126 The plaintiff had stopped seeing Ms Wong in September 2018 and then started to see her again just a couple of weeks before the hearing. She has seen her twice already and will see her under a ten-visit Medicare Treatment Plan.[53]
[53]T16
Summary of the Plaintiff’s earnings
Gross Payments Financial Year Earnings 2008 $49,567 2009 $54,791 2010 $51,923 2011 $62,601 2012 $84,247 2013 $98,588 ($1895 per week) 2014 $86,086 2015 $91,944 2016 $67,444 2017 No earnings from personal exertion 2018 No earnings from personal exertion
Lay evidence
127 The plaintiff’s daughter, Hana, swore an affidavit on 5 December 2018.
128 Hana confirmed the plaintiff’s injury and her unsuccessful attempts to return to work thereafter, her complaints of pain and restrictions in terms of physical activity, travel and social activities and her mental problems since the injury.
129 Further, Hana detailed her observations of the plaintiff’s right arm injury until she moved out of home on 22 July 2018. She confirmed the plaintiff’s ongoing complaints of pain, her concerns about not being able to find work, difficulties with housework, being unable to cook (and her doing it), and also other heavy household tasks.
130 Since Hana moved out of home, the plaintiff regularly visits her two or three times a week. She seems unhappy and in pain most of the time. Her concerns about the future continue. She is quite anxious and has panic attacks. She is less confident than she was before the injury and on a few occasions has asked Hana to attend some meetings or go somewhere with her, or even shopping. Her contentment with life has been affected.
131 Josie Lee, the plaintiff’s friend and co-worker, swore an affidavit on 11 December 2018. They first met when the plaintiff commenced work with the employer and they sometimes worked together. She thought the plaintiff was a hard worker.
132 Ms Lee described the plaintiff’s work duties. She felt plaintiff’s job as a machine operator was really a two-person job and the employer regularly put pressure on everyone to work faster.
133 Ms Lee confirmed that in 2016, the plaintiff told her she had injured her right arm at work. Since then, the plaintiff had complained of pain in the right side of her neck, right shoulder, right arm, hand, and tingling in her fingers on her right hand, and that her arm was swollen.
134 The plaintiff often asked her to feel if her right arm was different from her left arm, and sometimes Ms Lee could feel the difference, in that the right was warmer or sometimes colder and a different colour than the left. The plaintiff said her right arm was often tight and she often stretched it to release the tension.
135 The plaintiff advised she wanted to go back to work but she could not because of her injury.
136 The plaintiff could not use chopsticks when they went out. She had difficulties with cutlery. They often went shopping, and she had to help the plaintiff with lifting heavy items.
137 Ms Lee confirmed the plaintiff’s problems with turning her head when driving.
138 The plaintiff often talked about being depressed and often said she had had a panic attack a few days before they caught up.
The Plaintiff’s treaters
139 The plaintiff’s general practitioner, Dr Inpanathan, provided a number of reports from September 2016 and the most recent on 13 December 2018. Her clinical notes were also in evidence.
140 In her 2016 reports, Dr Inpanathan reported that on the said date, the plaintiff hurt her forearm and lateral right elbow at work, noting the repetitive nature of her duties. An ultrasound and x-ray of the right elbow showed a common extensor tendinosis with partial thickness tear.
141 Dr Inpanathan also noted the plaintiff had been having some pain on the right side of her neck with symptoms of a pinched nerve, numbness down her arm, and sometimes on the right side of her face and shoulder.
142 Dr Inpanathan noted a cervical CT scan showed mild degenerative changes. When her symptoms were not improving, she referred the plaintiff to Mr Moaveni, orthopaedic surgeon, for her elbow, and he organised a cervical MRI scan. The plaintiff also had nerve conduction studies and an MRI scan of the right brachial plexus and brachial artery.
143 As of September 2016, the plaintiff was on pain medication, seeing the physiotherapist regularly, and had had an injection in her right elbow. She had been referred to Dr Ly, Dr Ng and Mr Rogers.
144 Dr Inpanathan thought the injury was a cause of the plaintiff’s incapacity. She noted the plaintiff had always been keen to return to work and had tried a few times, but always after a few hours, her right elbow and arm became swollen and tender. She also experienced pain down the right side of her neck. She had shown her boss the swelling, so he was fully aware of her symptoms.
145 Dr Inpanathan then thought the plaintiff had no capacity for pre-injury work. She could try lighter duties for three hours on two days, but there were no suitable duties for her to go back to that did not involving repetitive use of her arm.
146 The plaintiff attended Dr Inpanathan on numerous occasions during 2016. During that time, she required regular analgesics, including Lyrica, and she needed to see the physiotherapist regularly.
147 In her report of September 2017, Dr Inpanathan commented on a number of jobs in a return-to-work program. She then thought the plaintiff was not able to perform any duties that involved repetitive use of her right arm or any lifting, pulling or pushing; however, there were some jobs she could do.
148 Dr Inpanathan was not able to say when the plaintiff would be able to return to a full range of duties and was then doubtful she would be able to return to pre-injury duties, noting the plaintiff was keen to return to some kind of work.
149 Dr Inpanathan thought the plaintiff would have to initially return to work on reduced hours, such as three hours on two non-consecutive days a week, and see how she went.
150 Dr Inpanathan reported in December 2018 there had not been any improvement in the plaintiff’s medical condition. She continues to suffer from neck, right shoulder, elbow and arm pain, worsened by any activity, causing a flare-up of chronic pain and swelling. As a result, her anxiety and depression had not improved. Even typing or writing in her recent state could flare up pain.
151 The plaintiff had problems with side-effects from medications, making her drowsy and feeling sick. Thus she had ceased those and was currently taking Lyrica and Coversyl.
152 The 2018, a right shoulder ultrasound showed significant subacromial bursitis and the plaintiff had had two steroid injections into her shoulder in August and November 2018 that helped for only a short time.
153 Dr Inpanathan confirmed the plaintiff has no capacity for pre-injury employment, but that she could do jobs that did not employ repetitive use of her right arm. Also, she should avoid flexing her neck for long periods. An initial return to work would be on reduced hours, such as two days for three hours, to see how the plaintiff went. She was uncertain whether there would be a suitable job the plaintiff could do, as she would have to use her right arm in most jobs.
154 Dr Inpanathan noted the plaintiff’s chronic pain, anxiety, depression and uncertainty over her future negatively impacted on her on most days.
155 Dr John Ly, neurologist, reported back to Dr Inpanathan in June and July 2016. The plaintiff told him she injured her elbow in the incident and complained of intermittent tingling in the right jaw, down the elbow, and also the lateral three-and-a-half fingers on the right.
156 Dr Ly noted the results of the cervical CT scan of February 2016 and the ultrasound of the right elbow.
157 On examination, there was subjective tingling of the fingers and subjective numbness in the anterior aspect of the forearm up to the neck in the lower half of the plaintiff’s face. Examination of the lower limb was essentially normal; however, there was a collapsing weakness in the right lower limb.
158 In Dr Ly’s view, the subjective intermittent numbness and tingling of the right face, jaw, elbow and hand, would unlikely be explained by the mild cervical spondylotic change. He thought it possible the plaintiff may have pre-existing mild right-sided Carpal Tunnel Syndrome, but this would not explain her paraesthesia in the face, jaw and upper arm.
159 Dr Ly organised a nerve conduction study and an MRI scan of the brain. Regarding the right elbow, musculoskeletal problem with tendinosis, he suggested the plaintiff see the general practitioner for follow up if she needed referral to a rheumatologist.
160 On review the following month, the plaintiff still complained of subjective paraesthesia and numbness down the right arm and face. A nerve conduction study was normal and she had not had the brain MRI scan. There were similar neurological findings on re-examination.
161 Dr Ly explained to the plaintiff her nerve conduction study was normal. He again suggested a brain MRI scan, which she would undertake after she returned from a holiday to Indonesia. The plaintiff understood to return to see him after this was done.
162 Dr Ng, neurologist, saw the plaintiff on referral from Mr Moaveni on three occasions in 2016, the most recent in December 2016.
163 The plaintiff reported sudden severe right arm pain, swelling and shooting pain in the neck, shoulder and right arm on the day of the injury. She had been intermittently having a number of symptoms since then, including numbness of the jaw, neck, upper arm, middle finger, wrist and elbow. There was no change in the colour in the arm, but it often became hot and cold randomly, and since the injury, her right arm tended to swell up, even with minimal exertion.
164 Examination revealed no obvious arm wasting, discolouration or changes in temperature. Tone and reflexes in the arm were normal and power was weak, around 4 out of 5. There was also tenderness in the lateral and medial epicondyle and the shoulder was tender to palpate. There was obvious tenderness in the trapezius as well as paraspinal muscles. The head tilt was markedly restricted and the plaintiff felt slightly subjectively dizzy when she did it. The range of shoulder movement was restricted to 90 degrees due to pain, and sensation was dull in the entire right arm globally. The lower jaw was also numb to touch.
165 Dr Ng diagnosed non-specific soft tissue musculoskeletal pain – Chronic Pain Syndrome – fibromyalgia, elbow tendinitis – tendon tear, cervical spine, degenerative changes and cervical dizziness.
166 Dr Ng thought the exact diagnosis was unclear, noting the plaintiff had global pain, weakness and numbness in the right arm. He thought the pain and dysfunction were out of proportion to the radiological findings, including C5-6 disc pathology and right elbow extensor origin tendinitis.
167 Dr Ng suspected the plaintiff might have additional soft tissue pathology, perhaps muscle strain, involving the neck and right arm from overuse. She might also have Chronic Pain Syndrome or fibromyalgia. In his view, her symptoms were not typical of cervical radiculopathy, although he could not rule out C6 radiculopathy causing some of the shooting pain, spasm in the neck and right arm. He thought the cause of her dizziness was unclear and he suspected it could be cervical dizziness secondary to her neck muscle spasm.
168 Dr Ng also thought the relationship of the injury to the plaintiff’s employment was unclear. Noting the history of her symptoms started following increased workload, he thought the condition could be work-related, noting her description of repetitive tasks.
169 Dr Ng then thought the plaintiff was not fit to resume any work because of ongoing pain and swelling of the right arm, aggravated easily by minimal exertion, noting she had failed attempts at part-time modified duties.
170 In addition to current treatment, Dr Ng recommended pain rehabilitation physician assessment and management, and also rheumatological assessment. He had recently referred the plaintiff for an MRI scan of her arm muscle to check for any evidence of soft tissue swelling or muscle inflammation.
Physiotherapy
171 The plaintiff had physiotherapy during 2016 from two practitioners who were associated with the employer. David Harry first saw her on 24 February 2016 and she was later seen by Cameron Brown at the same clinic.
172 As of April 2016, Mr Harry noted the plaintiff’s grip strength had not improved. Symptomatically she was reporting decreased discomfort levels at rest and went for extended periods without discomfort, as long as she was not using the arm excessively.
173 Mr Harry noted the workplace was keen to get the plaintiff back in some capacity and she had expressed a desire to do so. He and Mr Brown both thought she was fit to perform light seated and standing work, with no repetitive use of the affected arm. Given her recent CT scan, they thought she should also avoid sustained neck positions and be allowed complete autonomy to take rest breaks as required. Mr Harry was able to monitor the plaintiff’s duties on site and noted management was very supportive of injured workers.
174 Cameron Brown reported in late 2016, having most recently seen the plaintiff in December.
175 Mr Brown noted the plaintiff presented with what was first thought to be a lateral epicondylitis. He had some suspicions, however, her neck problems had some involvement with upper limb tension and restriction in neck movement.
176 Mr Brown thought the plaintiff’s presentation had been very consistent with pain attributed to repetitive use. She had pain on palpation of the lateral epicondylitis and with grip, finger extension and carrying tasks. Her scapula mechanics were very poor and may be causing upper limb tension and pins and needles.
177 Mr Brown could not explain the plaintiff’s facial numbness, as it did not fit with any of the case findings. In addition, he noted the plaintiff had issues around the swelling in the arm.
178 Noting the degenerative changes at C5-6 on investigation, Mr Brown thought the repeated use of the arm may have irritated the C6 root at that level. At the same time, the elbow injury would have led to altered scapula biomechanics and may have caused the neck pain to present as an acute episode.
179 Mr Brown noted the plaintiff had a confirmed tendinosis of intrasubstance tear of the common extensor origin on MRI scan. Injections had resulted only in slight improvement. She was taking Lyrica, Mobic and Voltaren to treat the pain.
180 Mr Brown thought it highly probable the constant use had initiated the C5-6 nerve root and the arm. He thought the sudden increase in use of the two machines in February 2016 was consistent with the presentation of tendinosis and tears in the elbow.
181 Mr Brown did not believe the plaintiff was suitable for a return to pre-injury duties. She might be suited to administration work not involving the right hand with any constant use, and she should not lift overhead or complete any more than twenty minutes’ continuous work with the arm. Return to work was likely to be a helpful motivating factor for her. He felt efforts should be made to retrain into a less labour intensive area of the company, or into an alternate workplace and duties.
182 Mr Brown wondered whether the plaintiff needed another opinion regarding the swelling and facial numbness from a vascular specialist and/or neurologist, as that could not be fully explained through any of her previous testing. He also thought she would benefit from physiotherapy and also a gym/swim program.
183 Dr Henry Voselis, consultant physician, first saw the plaintiff in late August 2017. The plaintiff then reported having injured herself at work because of repetitive activity. Her arm became swollen, painful and numb. She was investigated and a cervical disc bulge was found.
184 On examination, right hand grip strength was slightly reduced and there was a slight reduction in sensation, mainly to light touch over some of the fingers on the right.
185 The plaintiff was next seen in July 2018, when she was having pain management. She had problems with increasing pain in her right leg, and in her left arm, and she had intermittent pain and numbness. She had had a number of investigations and was taking Lyrica, using a fentanyl patch, Coversyl and Clonidine.
186 On examination, the middle fingers in the right hand were somewhat numb on the palm side. The plaintiff had pain in the right deltoid region, but this had not really changed a lot over the last year. She did have slight reduction in temperature in the right hand, mainly on the palmar surface of the index and ring finger.
187 Right shoulder movements were somewhat painful at the extremes. Dr Voselis noted the shoulder ultrasound which showed some right subacromial bursitis. The plaintiff had had an injection in the shoulder, but it did not really improve a lot.
188 On review later in August 2018, the plaintiff reported the injection had not made a lot of difference and tenderness around the deltoid continued, and there were problems with abduction of the arm and external rotation.
189 On the last review on 8 November 2018, the plaintiff’s arm was essentially unchanged. She still had pain in the neck and slight reduction in neck movement and sensation to light touch; and temperature was normal, but she said she was more sensitive to pinprick. She still complained of panic attacks two to three times a day.
190 Dr Voselis had not seen the plaintiff since and had not offered her further therapy. He thought her disability was certainly increasing, but it was difficult to assign a specific pathology to it, apart from changes in her shoulders. Whether the disc bulges were significant was another question, and that needed to be further evaluated by an appropriate profession.
191 The plaintiff’s treating psychologist, Michelle Wong, reported on 14 July 2017. She first saw the plaintiff in March that year.
192 Ms Wong diagnosed an Adjustment Disorder with Anxious and Depressive Moods, the plaintiff having been seen for six sessions through Medicare.
193 In Ms Wong’s view, the plaintiff’s psychological condition is directly related to her physical injuries. There were no pre-existing psychological conditions influencing the course of the accepted injuries.
194 Ms Wong thought the plaintiff’s psychological conditions of anxiety, loss of self-esteem and concentration difficulties were likely to have a bearing on her capacity for future suitable employment and her capacity for her pre-injury employment.
195 Ms Wong concluded, even though the plaintiff had engaged well with treatment, nevertheless, her psychological prognosis will be dependent on her physical injury and her progress would be determined by an appropriate medical specialist.
Investigations
196 An x-ray of the right elbow taken on 4 March 2016 showed no fractures or focal bone lesions.
197 Following an ultrasound of the right elbow also that day, it was reported there was common extensor tendinosis in association with intrasubstance partial thickness tear.
198 The plaintiff had a cervical CT scan on 8 April 2016. It was reported there were mild degenerative changes within the cervical spine, most marked at the C6-7 level, where a disc osteophyte complex resulted in moderate spinal canal and mild neural exit foramen stenosis.
199 There was an MRI scan of the cervical spine on 2 June 2016.
200 It was reported there was mild degenerative disc disease at C4-5, C5-6 and C6‑7. Uncovertebral osteophytosis contributed to mild narrowing of the right C5-6 neural exit canal, but no impingement of the exiting nerve root.
201 Following a cervical CT scan on 8 April 2016, it was reported there were mild degenerative changes within the cervical spine, most marked at C6‑7, where a disc osteophyte complex resulted in moderate spinal canal and mild neural exit foramen stenosis.
202 There was an MRI scan of the right elbow on 12 September 2016. It was reported the findings confirmed common extensor tendon origin tendinosis with intrasubstance tear.
203 There was an MRI scan of the right brachial plexus and brachial artery on 19 September 2016. It was reported there was no abnormality of the brachial plexus or subclavian artery on the right side. There was uncovertebral joint degenerative change at C5-6, slightly narrowing the right neural foramen, with possible irritation of the right C6 nerve root.
204 An MRI scan of the right forearm muscles on 25 January 2017 was reported as being normal.
The Plaintiff’s medico-legal evidence
205 The plaintiff was seen by Mr Gerald Moran, orthopaedic surgeon, in February 2017.
206 The plaintiff told Mr Moran that in about 2014, she experienced intermittent shooting pain and swelling from her neck to the fingers of her right hand. She also experienced a tingling sensation on the right side of her face. There was no precipitating cause for the onset of symptoms.
207 On examination, the plaintiff complained of constant neck pain, and her neck movements were restricted. She had pain in her right upper arm, right forearm, and around the lateral epicondyle of her right elbow, and she also had a shooting pain in her right thigh, knee, and foot.
208 On examination, sensation to light touch was decreased over the volar aspect of the right upper arm, right forearm, and all fingers of that hand. Sensation to light touch was decreased in the volar aspect of the right thigh, right lower leg, and all the toes of that foot. There was some restriction of cervical movement. Upper limb reflexes were normal, and there was no wasting. There was tenderness over the right lateral epicondyle of the elbow, and a full range of elbow movement.
209 Mr Moran noted investigations revealed degenerative changes in the cervical spine and changes of lateral epicondylitis of the right elbow. In his opinion, the plaintiff aggravated degenerative changes of her cervical spine and developed lateral epicondylitis. He believed those conditions were related to her work with the defendant.
210 Mr Moran then thought the plaintiff was not fit for her pre-injury employment and was only fit for light duty employment, not working with her neck in a fixed position, and not using her right arm in a repetitive fashion. He considered her prognosis was then guarded.
211 The plaintiff was examined by Mr Chehata, shoulder, elbow and wrist surgeon, in October 2018.
212 The plaintiff told him that initially in 2014, she noticed forearm, elbow and arm swelling, but with an element of rest, this appeared to settle down. This recurred on 17 February 2016, when she noticed her arm became incredibly swollen with pins and needles and numbness, and she described almost a fever across the entire right shoulder. She found the entire upper limb and neck were very sore, developing pins and needles from the right jaw radiating down into the cervical spine, neck, trapezial musculature, and down into the hand.
213 The plaintiff presented with constant pain, with burning and shooting pain from the jaw all the way down to the arm. She also described constant thenar eminence pain, across the CNC joint on the right thumb, coupled with ongoing pins and needles and quite dense numbness in the tips of both the middle, index and ring fingers.
214 Mr Chehata noted, although there was no evidence of electrophysiological nerve entrapment, the CT and MRI scan of the cervical spine confirmed cervical spondylosis.
215 On examination of the cervical spine, it was irritable, with pain on twisting to the right, which limited rotation. There were no features of radiculopathy, and, although the plaintiff had intermittent pins and needles and numbness in the fingers complained of, there was no intrinsic muscle wasting of the hand, with normal tone, power and reflexes.
216 On examination of the right shoulder, the plaintiff had impingement at about 130 degrees. There were no signs of muscle wasting, and she had a positive Neer and a modified Hawkins. She had a non-tender AC joint and tender longheaded biceps. There were no signs of adhesive capsulitis, and a diagnosis of bursitis with obvious driving impingement was the clinical diagnosis.
217 With the right elbow there was tenderness, more proximally in the common extensor wad in the muscle belly, with posterior interosseous nerve intact, as well as radial nerve function intact. There was no associated mid-forearm wasting, nor did the plaintiff have medial epicondylitis or olecranon bursitis.
218 The ultrasound and MRI scan confirmed lateral epicondylitis on the right, and an ultrasound confirmed subacromial bursitis with an intact rotator cuff.
219 Mr Chehata diagnosed cervical spondylosis, subacromial bursitis with impingement, and lateral epicondylitis.
220 Mr Chehata thought it was the repetitive duties that aggravated the plaintiff’s conditions.
221 Mr Chehata then thought the plaintiff was not capable of pre-injury employment, although she was capable of suitable employment. He noted she had more recently completed a Master of Business Education, indicative of high language skills and communication skills, as well as clearly being literate. He thought an ideal situation would be employment that was administrative-based, relying on her current higher qualifications.
222 Mr Chehata considered the restrictions should be that any repetitive activities using the right upper limb causing extension at the level of the wrist which will exacerbate lateral epicondylitis, any repetitive or overhead shoulder activity, as well as awkward and repetitive movements of the cervical spine, should be avoided, due to the potential exacerbation of both the cervical spondylosis and subacromial bursitis.
223 Mr Chehata thought the prognosis was guarded due to the concurrent complex, association of depression and anxiety, coupled with the chronicity of the subacromial bursitis, the likely deterioration of the cervical spondylosis, and ongoing lateral epicondylitis.
224 Dr Alex Stockman, rheumatologist, first examined the plaintiff on 6 March 2017.
225 The plaintiff advised that in February 2016, she developed swelling in the right upper arm, forearm, and right trapezius muscle, and shortly afterwards developed some swelling on the right side of her neck and right mandible. There was no specific injury, but for four days prior to the onset of symptoms, she was working exceptionally quickly in order to meet a deadline.
226 The plaintiff stated that since the injury, there had been no improvement. She complained of constant throbbing pain in the right upper limb and neck associated with swelling. It fluctuated from between 3 to 7 out of 10 to 10. Using the right arm aggravated her pain; for example carrying objects in that arm, driving for more than 40 minutes, or doing heavy housework without a break. Swinging her arms by her side whilst power walking also aggravated her pain. There was even some pain when she was resting, and the pain affected her sleep. In addition to the pain and swelling, which is mainly in the upper arm and forearm, at times the arm turns blue. She stated her neck had been quite stiff since the injury.
227 The plaintiff also had a somewhat longer history of numbness in the fingers and the right thumb, but not the little finger, and she could distinguish this from her upper limb pain, which was of a sharp nature. Furthermore, she complained of pain across the low lumbar region, with shooting pain down the right thigh, knee, and ankle. This pre‑dated the right arm pain by several years.
228 Dr Stockman thought it puzzling that the plaintiff did not report these symptoms to her doctor until very recently. She also had some pain in the left thigh, but it was not as bad as in the right. She felt the low back pain may have been caused by constant pacing up and down at work to attend machines.
229 On examination, there was about 50 per cent of normal cervical movement. There was widespread tenderness involving the neck, upper thoracic region, trapezius muscle, pectoral region anteriorly, right shoulder, upper arm, and forearm, preventing more thorough examination of the right arm in particular.
230 There was a full range of movement of the elbows and wrists; however, movement of the right wrist was quite painful. There was reduced sensation to pinprick, involving the whole of the right arm except for the palm. Reflexes in the upper limbs were present and equal. There was a reduction in grip strength on the right side. Whilst the plaintiff’s right arm often felt cold, it was not cold to touch.
231 There was limitation of lumbar movement in all directions.
232 Dr Stockman diagnosed the following:
· Regional Pain Syndrome involving the neck and right arm, characterised by constant pain, of a sharp nature, and associated symptoms of altered subjective sensation, temperature and colour change. The aetiology of Regional Pain Syndrome has not been confirmed. It is pain amplification disorder, resulting from dysregulation of central pain processing. It can follow on from local trauma.
· Cervical disc degeneration – a common finding at the plaintiff’s age.
· Probable right lateral epicondylitis; however, that could not be fully assessed, because examination of the right arm was limited by pain.
· Probably rotator cuff tendinopathy of the right shoulder, but imaging is unavailable.
233 In Dr Stockman’s opinion, Regional Pain Syndrome was the main cause of the plaintiff’s neck and arm pain. Furthermore, she had low back pain with occasional shooting pain in the legs, more in the right, which would also be consistent with a Chronic Pain Syndrome; however, she did have some degenerative changes at L5‑S1 which may be contributing to her back pain.
234 Dr Stockman thought the nature of the plaintiff’s work had aggravated cervical disc degeneration and had initially caused injury to the right shoulder and elbow, which had probably resolved, but had progressed to a Chronic Pain Syndrome.
235 Dr Stockman thought the plaintiff was unfit for pre-injury employment but would be fit for suitable employment such as a cleaning job, clerical work if retrained, or as a shop assistant.
236 Dr Stockman thought the plaintiff should avoid frequent flexion or rotation of her cervical spine, lifting objects above the shoulder level, or repetitive work with her arm.
237 Dr Stockman would expect the plaintiff’s symptoms would improve, provided that she had continued Lyrica and physiotherapy intermittently, and perhaps local steroid injection. She would also benefit from psychological counselling and pain management.
238 Dr Stockman disagreed with Dr Barton’s November 2016 view that the plaintiff’s symptoms and clinical findings did not fit with any recognised medical condition. Dr Stockman pointed out it should be noted the plaintiff was able to drive herself across Melbourne for more than 45 minutes to the appointment. Nevertheless, she complained this is likely to flare up her pain for several days. She also indicated that she has an ability to do some work. He indicated he would be pleased to do a further report once the result of the right shoulder ultrasound became available.
239 In a supplementary report, Dr Stockman advised that the question whether the Chronic Pain Syndrome was physical or mental could not be answered easily. There was no physical anatomical abnormality, but he believed there was dysregulation of nerve fibres, which was perceived by the cortex as chronic pain.
240 Dr Stockman advised he did not know if the shoulder injury had healed without further investigations, but in his opinion, most of the pain in the shoulder and arm was as a result of a Chronic Pain Syndrome.
241 On review in December 2019, the plaintiff advised her condition had remained essentially unchanged since the last visit. Her pain fluctuated from 2 to 7 out of 10. It was associated with some swelling in the hand and wrist, and at times the right arm turned blue.
242 In summary, the examination was essentially unchanged from the first examination.
243 Diagnosis was of aggravation of cervical spondylolisthesis, subacromial bursitis as seen on recent ultrasound, and Chronic Regional Pain Syndrome. There had been no significant change in the plaintiff’s injuries since the occurrence thereof, and he considered they were permanent or long-term.
244 Dr Stockman thought the plaintiff no longer had the capacity for pre-injury repetitive work. In his opinion, she could work in retail which did not involve lifting more than 10 kilograms, working above the shoulder, or performing repetitive movements of the right arm. She could also work as a receptionist, but should avoid repetitive work, noting her comments about keying.
245 Dr Stockman thought, as a result of the above conditions, social and domestic activities were reduced; in particular, driving, cooking, or cleaning. Further, the injury had had an effect on the plaintiff’s ability to enjoy life, with an example being the panic attacks documented by her psychologist.
246 Dr Stockman thought the plaintiff’s condition was expected to slightly improve with the passage of time, but she was likely to be left with significant disability.
247 Dr Stockman agreed with Mr Chehata’s neck and shoulder diagnosis, but was not convinced the plaintiff had ongoing epicondylitis. He noted there was also some discrepancy in the range of right shoulder movement which was considerably better when seen by Mr Chehata several months earlier.
248 Dr Stockman suspected this was due to the daily fluctuation of the plaintiff’s condition, including level of pain. He had also diagnosed a Chronic Regional Pain Syndrome which was characterised by constant shooting pain in the right arm, symptoms of discolouration, swelling, and temperature change; however, objectively that was not observed on this examination.
249 Dr Stockman agreed with the general practitioner that the plaintiff should initially try part-time work before considering full-time duties. He noted that on this occasion, the plaintiff did not complain of any pain other than what is related in the history, namely she did not volunteer any leg and back pain, and therefore this may have resolved.
250 The plaintiff was examined in April 2017 by psychiatrist, Dr Albert Kaplan.
251 The plaintiff described a range of symptoms, including sleep and appetite disturbance and loss of libido, a reduction in social activity, difficulties with memory and concentration, and loss of self-esteem.
252 Dr Kaplan concluded the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to her physical injuries, her chronic pain, her inability to work, and the other physical limitations imposed upon her by her pain.
253 Dr Kaplan thought the prognosis for the plaintiff’s psychiatric condition would be determined by the outcome of her physical state, and that she was likely to remain prone to depression and anxiety as long as her pain persisted, as long as she is disabled by her pain, and as long as she is unable to rehabilitate herself back into the workforce. If her physical condition deteriorated with the passage of time and/or she became increasingly disabled, her depression was likely to intensify.
254 Dr Kaplan thought the plaintiff’s psychiatric condition, and particularly her difficulties with her memory and loss of self-esteem, were likely to have an impact on her capacity for pre-injury employment or any suitable employment, although that capacity would be largely determined by her physical condition.
255 On re‑examination in December 2018, the plaintiff stated there had been no improvement in her physical condition since last examined. She had had some pain management strategies provided.
256 Following examination, Dr Kaplan thought the plaintiff’s depression appeared to have subsided since last seen, and that improvement was probably related to her commencing further studies that had given her some hope for the future. Nevertheless, she remained anxious and continued to suffer from an Adjustment Disorder with Anxiety, and in addition, she described panic attacks.
257 Dr Kaplan thought the plaintiff’s condition was related to her injuries, chronic pain, and physical limitations imposed by her pain and inability to work. He noted she continued to experience sleep and appetite disturbances, difficulties with memory and concentration, and loss of self-esteem, and noted that her involvement in a support group at the local church had been beneficial to her mood.
258 Dr Kaplan confirmed that the prognosis for the plaintiff’s mental state was largely to be determined by her physical condition.
259 Although the plaintiff’s depression had subsided as a result of the course she was undertaking and the support she received at her church, he noted her anxiety had intensified, and she was experiencing frequent panic attacks.
The Defendant’s medical evidence
260 Mr Myron Rogers, neurosurgeon, wrote to the plaintiff’s general practitioner in June 2015 thanking him for referring the plaintiff.
261 Mr Rogers advised that on examination, the plaintiff complained of symptoms involving the right side of her neck, right arm and right elbow. She described right-sided neck pain with tingling extending to the right fingers. She also described episodes of numbness in the right side of the face.
262 On examination, there was no evidence of muscle wasting and no fasciculation, and reflexes were present and symmetrical. All movements of the right arm caused pain. The plaintiff had give-way weakness in all muscle groups.
263 The cervical CT scan showed mild multi-level degenerative change. There was no spinal cord compression and no significant compression of either the right C6 or C7 nerve roots.
264 Mr Rogers advised the plaintiff there was no room for surgical intervention. He felt the best option for her was to be in a graduated return to work, otherwise she would become entrenched in her sick role.
265 Mr Ash Moaveni, orthopaedic surgeon, wrote to Dr Inpanathan in September 2016. He noted the plaintiff now had had the MRI scan of her right elbow, which had signs of lateral epicondylitis. Clinically, however, her presentation was not consistent with this. Specifically, her resisted wrist extension with the elbow in extension is not painful.
266 Mr Moaveni noted the plaintiff had also seen Dr Ng, an experienced neurologist, who was working her up for Thoracic Outlet Syndrome. He looked forward to hearing Dr Ng’s thoughts in due course. He personally did not think that further injections into the right elbow were going to be of benefit.
The Defendant’s medico-legal evidence
267 Associate Professor Richard Stark (“Dr Stark”), neurologist, examined the plaintiff on behalf of her solicitors in February 2017.
268 The plaintiff reported ongoing symptoms involving the right upper limb since February 2016.
269 Dr Stark thought neurological examination did not reveal any specific neurological abnormality and he noted the relatively normal findings on imaging and nerve conduction studies.
270 Dr Stark suspected the plaintiff had sustained a muscular injury back in February 2016 and that she subsequently developed a Chronic Pain Disorder, affecting the right upper limb in particular, to a lesser extent, the right lower limb. He thought she had developed that Pain Disorder following a soft-tissue injury.
341 In those circumstances, whilst I do not consider the plaintiff to be an untruthful witness, I have significant concerns about the reliability of her evidence.
Right upper limb impairment
342 It was not disputed that the plaintiff suffered an injury to her right elbow, namely, lateral epicondylitis (“the condition”), as a result of the work process in February 2016. The condition was evident on ultrasound and MRI in 2016.
343 The plaintiff’s initial Claim for Compensation was accepted by letter dated 18 March 2016. Further, by letter dated 23 November 2017, liability was accepted for the injury to the right elbow and mental injury. However, liability was rejected for injury to the right arm, shoulder, neck, back and right leg.
344 The consensus of medical opinion is that the condition has resolved.
345 In October 2017, Dr Elder thought the plaintiff may have had lateral epicondylitis but on examination, her presentation was more in keeping with non-organic factors, with a full range of elbow movement and an invalid grip strength.[57]
[57]T27
346 In July 2018, Dr Bones thought that the condition appeared to have resolved.
347 In December 2018, Dr Stockman’s test for epicondylitis was negative and he thought the condition had probably resolved.[58]
[58]T27
348 Counsel for the plaintiff conceded Mr Moran did not consider the elbow assessable when he examined the plaintiff in March 2017.[59]
[59]T58
349 Those practitioners who found the condition continued, appear to have relied on the 2016 investigations.
350 When asked to address the medical opinion that the condition had resolved, counsel for the plaintiff conceded “it is not as severe, but there was still the potentiality for it to be exacerbated”.[60]
[60]T49
351 I accept that the condition has resolved as at the date of hearing. In those circumstances, any right upper limb impairment is only attributable to any compensable right shoulder injury.
352 In general terms, counsel for the defendant submitted as the condition had resolved, “that was where it ended in terms of physical injuries and statutory benefits and compensation”.[61]
[61]T28
353 The defendant does not accept the plaintiff suffered a shoulder or neck injury in the course of her employment.[62]
[62]November 2017 letter
354 In terms of the shoulder, reliance was placed on the “lack of reportage” and Dr Doig’s views following examinations in May 2016 and June 2018. In his most recent report, he specifically stated that the proximal symptoms in the shoulder and neck regions do not appear to be work related, not having been present on the earlier examination three months after the injury.[63]
[63]T31
355 It was submitted, even if it was established there was some cervical spondylitis and bursitis caused by work, they do not provide a substantial organic basis for the consequences complained of in any event;[64] however, if the plaintiff discharged the onus in this regard, it was conceded the consequences of any compensable injury were “serious”. [65]
[64]T31
[65]T41
356 Counsel for the plaintiff submitted there was a discrete impairment to the cervical spine and then the right limb involving the shoulder and the elbow.[66]
[66]T47
357 It was submitted that early treatment was widespread – involving a number of complaints – in the months after the injury, as the physiotherapists’ reports confirm.[67] Whilst initial treatment did focus on the elbow, the treating physiotherapists suspected the plaintiff’s neck was involved and her general practitioner sent her for the cervical CT scan on 8 April 2016 that showed three-level degeneration.
[67]T47
358 Whilst Dr Stark thought the degenerative disease was mild and that there was mild narrowing at C5-6, counsel for the plaintiff submitted the physiotherapists and the general practitioner who had been seeing the plaintiff long term suspected nerve root involvement.[68]
[68]T48
359 Reliance was also placed on the later brachial plexus MRI scan which was reported to show uncovertebral joint degenerative change at C5-6, slightly narrowing the right neural foramen, with possible irritation of the right C6 nerve root.[69]
[69]T48
360 It was submitted Dr Stockman considered there to have been a shoulder injury at work, having examined the plaintiff in March 2017. He then noted there was probable rotator cuff tendinopathy of the right shoulder but imaging was unavailable. He later commented that it was difficult to distinguish pathology in the shoulder from a Chronic Pain Syndrome.[70] This diagnosis, which it was submitted to be organically based,[71] was relied on in addition to a specific right shoulder injury.[72]
[70]T49
[71]a view shared by Mr Chehata
[72]T50
361 It was submitted the treating orthopaedic surgeon, Mr Moaveni, was not unhelpful to the application, having referred the plaintiff to Dr Ng for investigation of a possible diagnosis of Thoracic Outlet Syndrome.[73]
[73]T57
362 Mr Moran considered the plaintiff had aggravated degenerative changes in her cervical spine as a result of her duties at work.[74] This view was shared by Mr Chehata.[75]
[74]T58
[75]T59
363 When asked to respond to the lack of any comment by these medico-legal examiners on the florid symptoms they found on examination, counsel for the plaintiff simply urged the Court to accept that plaintiff is a hardworking lady who, through repetitive use, has suffered injury which has been accepted by them.[76]
[76]T59
364 I accept that the plaintiff has had some problems with her neck as a result of her work duties. She had physiotherapy treatment addressing this problem and was referred for a cervical CT scan just months after injury.
365 However, I am not satisfied the plaintiff suffered a right shoulder injury as a result of her work duties. Whilst she maintains she had shoulder problems as early as April 2016, it does not seem to have become a significant issue for her until more recent times, particularly when typing during her course last year. At that time, she was referred again to Dr Voselis and underwent shoulder investigations. Subsequently, she has a had a number of injections into her shoulder.
366 There was no mention of any shoulder complaint or treatment to the shoulder by the plaintiff’s physiotherapist in 2016. Further, early specialist referrals and injections related to the plaintiff’s elbow complaint. The plaintiff did not complain of shoulder pain when she first saw Dr Voselis in 2017.
Organic basis
367 The main thrust of the defendant’s case was that there is no ongoing organically-based physical condition related to the plaintiff’s work.
368 In Meadows v Lichmore Pty Ltd,[77] 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.”
[77](supra) at paragraphs [21]-[22]
369 Counsel for the defendant submitted a number of the plaintiff’s treaters were at a loss to explain her somewhat florid symptoms.[78]
[78]T31
370 Reliance was placed on the examination findings of neurologist, Dr Ly, of subjective tingling and numbness and a collapsing weakness in the lower limb.[79] He thought this was would unlikely be explained by the mild cervical spondylotic change and he could not explain the plaintiff’s paraesthesia in the face, jaw and upper arm. He thought her pain and dysfunction were out of proportion to the radiological findings. Further, the nerve conduction test he arranged was negative.[80]
[79]T31
[80]T32
371 Counsel for the defendant made similar comments about Dr Ng’s examination findings of widespread symptoms with no significant clinical findings, concluding the exact diagnosis was unclear. In his view, the symptoms were not typical of cervical radiculopathy and were largely unexplained.[81]
[81]T33
372 It was submitted Mr Rogers found little on examination, and diagnosed a Chronic Pain Disorder, as did Dr Stark.[82] The plaintiff’s general practitioner did not really analyse or diagnose her current condition.[83] Dr Voselis found it difficult to assign specific pathology to the plaintiff’s worsening symptoms.[84]
[82]T34
[83]T33
[84]T35
373 The defendant also relied on a report from the plaintiff’s treating surgeon, Mr Moaveni, who thought the symptomatology was not explained.[85]
[85]T34
374 It was submitted that since the initial injury, there had been the development of widespread pain and numbness which just could not be explained organically. So, essentially the defendant’s position was that disentanglement of the consequences was required, and that simply is not possible on the current evidence.[86]
[86]T30
375 Whilst Mr Moran and Mr Chehata diagnosed an organic condition, they did not comment on the quite florid symptoms complained of by the plaintiff on examination.[87]
[87]T36 – Mr Moran
376 Both medico-legal examiners diagnosed lateral epicondylitis and degenerative changes in the cervical spine; however, they seemed to rely on the September 2016 elbow radiology. They made absolutely no attempt to explain the symptoms or separate out what condition is organically based, simply providing a diagnosis of aggravation of cervical spondylosis. Further, Mr Chehata “just basically failed to disentangle,” despite noting the development of abnormal pain behaviour in his report.[88]
[88]T37
377 While there are three reports from Dr Stockman, it was submitted he seems to use the terms “Chronic Pain Syndrome” and “Chronic Regional Pain Syndrome” interchangeably. He ultimately does not diagnose organically-based Chronic Pain Syndrome and only diagnoses a Chronic Regional Pain Syndrome, relying solely on the history given by the plaintiff.
378 In those examinations, Dr Stockman did not observe any swelling or temperature changes, or colour differentiation, noting, objectively, they were not observed on examination. There are no doctors who have observed swelling, temperature change or colour change in the plaintiff’s right arm, and Dr Stockman is the only medical practitioner who even discussed that diagnosis.[89]
[89]T39
379 In particular, Dr Stark specifically stated there were no features to suggest reflex sympathetic dystrophy, which might attract an impairment rating.[90]
[90]T39
380 Although there is mention of swelling in the elbow in August 2016 by the general practitioner, it was submitted that is to be expected with the condition; however, there is no note of any observation of swelling or temperature change since then. Although it might be the plaintiff’s perception, Dr Stockman’s diagnosis is based on her information and not objective features. It was submitted this is very much a stand-alone diagnosis and not supported by objective findings.[91]
[91]T39
381 Whilst both Dr Doig and Dr Barton accepted the initial elbow problem, they now found there are a multitude of symptoms that could not be explained organically.[92]
[92]T40
382 Essentially, the defendant’s position is that, overwhelmingly, the current symptoms and consequences cannot be explained by any organic physical injury.[93] If it was accepted there was a substantial organic basis for the plaintiff’s present complaints, counsel for the defendant conceded the pain and suffering consequences would be “serious”.[94]
[93]T40
[94]T41
383 Counsel for the plaintiff relied on the views of the plaintiff’s treaters and the medico-legal opinions of Mr Moran, Mr Chehata and Dr Stockman discussed earlier.[95]
[95]Paragraphs [357]-[362]
384 When asked to comment on the failure of Mr Moran and Mr Chehata to explain the plaintiff’s florid symptoms, I was urged to “cut through the floridness and say that, nevertheless, at the essence, there was a complaint of pain in the neck and right arm. [She] is a dominant right-handed lady who had been using that arm and work and it caused her injury.”[96]
[96]T49
385 Counsel for the plaintiff submitted, whilst maybe the plaintiff’s description was a little bit florid and there were suggestions that maybe there is some psychological contribution, in essence, those practitioners accept the plaintiff’s story and find an organic diagnosis, and there are signs, on investigations, to support that.[97]
[97]T59
386 There was no real attempt in the plaintiff’s detailed affidavits to specify what claimed impairment resulted in what consequences.[98]
[98]Peak Engineering & Anor v McKenzie [2014] VSCA 67
387 Clearly, it is impermissible to aggregate any aggravation of cervical spondylosis with any shoulder impairment found to be work related.[99]
[99]Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511
388 In her first affidavit, the plaintiff simply described the pain and suffering consequences in relation to her “injuries” to the “right elbow, right arm, right shoulder and neck”. Further, she claimed a number of consequences relating to her lumbar spine – also claimed to relate to her neck and shoulder, which were not subject of this application.
389 When the plaintiff saw Dr Voselis in July last year, she also had problems with increasing pain in her right leg and left arm, and had intermittent pain and numbness – complaints of some significance, unrelated to any work injury.
390 There was no attempt by counsel for the plaintiff in submissions to delineate the consequences related to each of these injuries as required.
391 Taking into account the wide nature of the plaintiff’s complaints, her often florid presentation on examination, such as Dr Bone’s examination only 9 months before the hearing, and the medical opinion which addresses this situation,[100] I am not satisfied that there is an organically-based neck or right upper limb impairment, the consequences of which are “serious” as at the date of hearing.
[100]Mr Moran and Mr Chehata did not do so
392 Further, I am not satisfied any Chronic Pain Syndrome from which the plaintiff may presently suffer is organically based, there having been no path of reasoning disclosed by any practitioner holding that view.
393 Accordingly, the application in relation to the cervical spine is dismissed. I make a similar finding if any shoulder impairment is accepted as work related.
394 Having made these findings, I am not required to consider the loss of earning capacity application.
395 I do note however, there are real issues in this regard given the plaintiff’s current MBA study. As Mr Chehata commented, the plaintiff’s study was indicative of high language skills, as well as clearly being literate. Whilst she would have difficulty doing manual work, as most doctors opine, I cannot be satisfied that the plaintiff, on a permanent basis, will be unable to find employment in a more sedentary field, using this higher qualification and suffer the requisite 40 per cent loss.
Psychiatric impairment
396 The defendant’s primary submission in relation to the ss(c) application was simply any psychiatric impairment is not “severe”.[101]
[101]T4
397 The plaintiff came off antidepressant medication in 2018. There is no current report from treating psychologist, Ms Wong, the last being July 2017. There has been no referral to a psychiatrist.[102]
[102]T43
398 There has been an acknowledgement by the plaintiff of improvement in her condition, as confirmed by Dr Kaplan in December 2018.
399 In addition, it was submitted the plaintiff retained an ability to live a pretty normal life.[103] She functioned fairly normally in everyday life, continuing to go to church, see friends, applying for jobs, being able to study, and is power walking every day. Further, whilst “the panic attacks are there, and are notable, but they certainly do not take the plaintiff’s mental state to the severe threshold.”[104]
[103]T44
[104]T45
400 Dr Kaplan described the plaintiff’s mental symptoms on examination as normal to slight and mild – at the lower end of the range, not taking any psychiatric condition into the severe range.[105]
[105]T44
401 Counsel for the defendant also submitted there were issues of permanence in relation to that application, with the plaintiff about to complete her MBA. Further, medical opinion was that the plaintiff’s psychiatric future is dependent on the progress of her physical condition.[106]
[106]T45
402 Counsel for the plaintiff agreed that the ss(c) application was not the strongest part of the case after I indicated I did not think there was support for a 40 per cent loss of earning capacity on the psychiatric evidence.[107]
[107]T54
403 In terms of pain and suffering consequences, counsel for the plaintiff relied on the series of problems confirmed by Dr Kaplan.[108] The plaintiff had been taking antidepressants for substantial periods and had explained why she had recently stopped because of problems with drowsiness and loss of concentration.[109]
[108]T54
[109]T55
404 It was submitted there had still been a need for medication at times.[110] There was also a reduction in socialising because of the plaintiff’s depression.[111]
[110]T56
[111]T56
405 Counsel for the plaintiff submitted whilst Dr Kaplan thought the plaintiff’s depression appeared to have subsided, nevertheless, he considered she remained anxious and continued to suffer from an Adjustment Disorder with Anxiety, and in addition, she described panic attacks. She continued to have sleep and appetite disturbances, difficulties with memory and concentration, and loss of self-esteem.[112] Further, there was a reduction in her level of socialisation because of depression.[113]
[112]T54
[113]T56
406 Dr Kaplan also thought there was a likelihood of a worsening of the plaintiff’s psychiatric condition if completion of the MBA did not lead to employment.[114]
[114]T56
407 In the absence of any evidence supporting a 40 per cent loss of earning capacity on a psychiatric basis, the issue is whether the pain and suffering consequences of any mental impairment condition are “severe” as at the date of the hearing and into the foreseeable future.
408 In my view, any such consequences do not reach the higher statutory threshold of “severe”.
409 The plaintiff has only had limited psychological treatment and no specialist referral has been thought necessary. Her general practitioner recently stopped prescribing any anti-depressant medication, as she thought the plaintiff would be better assisted with counselling.
410 Despite problems with her arm typing, the plaintiff was able to finish the course and continues with her MBA, a situation which would not be possible if she was suffering a severe mental impairment.
411 Socially, the plaintiff is connected with her church group and family. She continues to power walk.
412 Any difficulty the plaintiff may have working is mainly based on physical, not psychiatric grounds on her own evidence and that of the medico legal psychiatrists.
413 Taking into account all the evidence, I am not satisfied the consequences of any mental impairment are severe and permanent as at the date of the hearing.
414 Accordingly, the application pursuant to ss(c) is also dismissed.
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