Trofimiuk v Victorian WorkCover Authority
[2019] VCC 1513
•20 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05699
| KATARZYNA TROFIMIUK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2019 | |
DATE OF JUDGMENT: | 20 September 2019 | |
CASE MAY BE CITED AS: | Trofimiuk v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1513 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – right shoulder injury – causation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria [2013] VSCA 46; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Mr D Seeman | Ryan Carlisle Thomas |
| For the Defendant | Mr M K Clarke | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff, Ms Katarzyna Trofimiuk (“Ms Trofimiuk”), alleged that she suffered injury to her right upper arm as a consequence of work with the employer, Eurofins Environment Testing Australia Pty Ltd (“Eurofins”), throughout the course of her employment, which ended on October 2014. Ms Trofimiuk brings a claim pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013, claiming that she has suffered a permanent serious impairment by reason of the alleged injury to the right arm within paragraph (a) of the definition of “serious injury”. Ms Trofimiuk does not bring an application in respect of loss of earning capacity.
2 The Victorian WorkCover Authority (“the defendant”) argued that the application should be denied on two bases. Firstly, that the alleged right arm injury did not occur in compensable circumstances and, secondly, if it is found that the right arm injury occurred in compensable circumstances, then the pain and suffering consequences of that right shoulder impairment could not be described as being “more than significant or marked” and as being “at least very considerable”.
3 For the reasons which are set out below, I find:
(a)Ms Trofimiuk has suffered injury to the right shoulder in compensable circumstances arising from her work with Eurofins;
(b)the pain and suffering consequences of her right shoulder impairment are not “more than significant or marked”.
4 For that reason, I would dismiss Ms Trofimiuk’s application.
Relevant background matters
5 Mr Trofimiuk was born in 1970 in Warsaw, Poland. She finished high school and studied in Poland to be a hairdresser. She worked as a hairdresser and immigrated to Australia in 1996. She had two children with her husband, the first, Pola, born in 1997 and the second, Aniela, born in 2000. In 2003, she began studying to become a laboratory technician. She completed one-and-a-half years before moving to Switzerland with her family, where she remained from 2006 to 2008, as her husband was working there. She then returned to Australia with her family, completed her TAFE course as a laboratory technician, and began applying for work. She commenced employment with Eurofins in May 2010.
6 Ms Trofimiuk’s case is put that she suffered injury to her right shoulder by reason of the work duties she was required to perform at Eurofins as a laboratory technician. In particular, two work activities were identified by her as being causative of her right shoulder injury. First, that in carrying samples between different testing areas, she was required to push on large, heavy doors repeatedly, and this caused or aggravated right shoulder problems. Secondly, she alleged that her work crushing soil samples involved her applying force with her right arm and grinding with a mortar and pestle repetitively for several hours each day. She alleged that both these duties caused or aggravated her right shoulder injury.
7 In her affidavit sworn 17 August 2018, Ms Trofimiuk deposed in the following terms:
“Over the course of my employment with the Defendant I engaged in repetitive and traumatic activities. To exit the building I had to pass through heavy and stiff doors, I would estimate about 20 times per day. The difficulty was that my hands were occupied with materials so I needed to use my shoulder to knock or push up against the doors. The doors were heavy and stiff.” [1]
[1]Plaintiff’s Court Book (“PCB”) 1-2 at paragraph 5
8 Ms Trofimiuk went on to describe the crushing duties in the following terms:
“In addition I needed to crush rocks using a mortar and pestle. I often did this for hours on end. I would estimate that I was crushing rock for 3-4 hours per day, sometimes more. I did it every day. We had to crush the rock to a fine a (sic) sand. I used my right hand mostly as I was stronger on that side. I would rotate my hands when I was unable to keep going on my right.”[2]
[2]PCB 2 at paragraph [6]
9 Ms Trofimiuk stated that she and others complained about these two particular work tasks. Eventually, it appears, although I am uncertain of the exact date, that some time in 2014, the doors were replaced with automatic doors and the mortar-and-pestle work was replaced so that it was done by a machine.
10 Ms Trofimiuk’s version of events received support from an affidavit sworn by Bianca Downe, sworn 3 September 2019.[3] She was a co-worker of Ms Trofimiuk at the relevant time. She confirmed Ms Trofimiuk’s evidence as to the heavy doors that employees were required to pass through, though her affidavit is silent as to how many times the doors would have to be manually opened. She also provided confirmation of the nature of the work with a mortar and pestle. She deposed, at paragraph 13, that the work with the mortar and pestle was very strenuous and draining. She confirmed that the materials to be crushed contained rock which was required to be ground to a fine powder in order to be properly sampled. She considered this work was particularly heavy and that at the end of each shift, her arms were fatigued. [4] She did not provide evidence as to how long a worker would spend doing this mortar-and-pestle work each day.
[3]PCB 21-23
[4]PCB 22-23
11 Ms Trofimiuk also relied on an affidavit of Sarah Stevenson, sworn 9 September 2019.[5] Ms Stevenson worked in the same metals department of Eurofins, as a preparation assistant. She gave evidence of doing the same mortar-and-pestle work as Ms Trofimiuk, and her evidence was that some samples could take up to two hours to crush.[6] She estimated that on her nightshift work, she could spend three to four hours per shift performing such crushing work, which she considered to be quite strenuous, particularly on the harder samples.[7]
[5]PCB 24-26
[6]PCB 25 at paragraph [8]
[7]PCB 25
12 The defendant in this matter has provided a video which outlines the process of work which it said Ms Trofimiuk was required to perform with the mortar and pestle. Ms Trofimiuk disagreed that this properly showed the work that she was required to perform. The video was not shown to either Ms Downe or Ms Stevenson for their comment.
13 The defendant relied on an affidavit of Mr Glen Jackson, sworn 14 September 2019.[8] He was, at the relevant time from 2010 to 2014, the laboratory supervisor and national operations manager for Eurofins. In his affidavit, he took issue with Ms Trofimiuk’s allegations that she was required to crush “rock”. His evidence is that any rock found in the sample would be removed prior to any crushing, and this meant that the mortar-and-pestle work was reasonably light. He has also viewed the video of the mortar-and-pestle work and he agreed that it shows the work that he would have expected to be done by the plaintiff. He made no comments as to the requirement to push through heavy doors.
[8]Defendant’s Court Book (“DCB”) 104
14 In closing submissions, counsel for Ms Trofimiuk made the point, which was factually supported by the affidavit of Ms Stevenson, that to remove rock particles from the soil sample prior to grinding would be to remove a key part of the sample for testing, thus giving a skewed result. Logically, this seems to me to be correct. I note that Mr Jackson, who swore his affidavit after the other witnesses in this case and must have had the opportunity to review their evidence, did not comment on Ms Downe’s or Ms Stevenson’s affidavit. I consider the logic of Ms Downe’s statement[9] to be compelling as to the presence of rock in the samples to be ground. For this reason, and also the fact that the two lay witnesses, Ms Downe and Ms Stevenson, were independent witnesses who worked with Ms Trofimiuk at the relevant time, and have provided affidavits, to be compelling. On this basis and, also, Ms Trofimiuk’s evidence, I find that she was engaged in crushing rock repetitively during the course of her shifts with mortar and pestle. I find, consistently with that evidence, that such work was tiring and fatiguing and required strenuous use of her right arm, which was her dominant arm.
[9]PCB 22, paragraph 13
15 I further find that Ms Trofimiuk was required to repetitively push on heavy and stiff large doors throughout the course of her employment. I find that both these activities occurred at least from the time when she commenced employment in May 2010 until some time in mid 2014. I am hampered in defining a precise end date for these duties, as there is not sufficient evidence to make a determination on exactly when the automatic doors and the automatic crushing machine were introduced to Eurofins.
Medical history of the Plaintiff’s right shoulder
16 From the material tendered to the Court, it does not appear that, prior to 2010, Ms Trofimiuk had any significant background medical issues.
17 On 7 March 2018, Ms Trofimiuk saw Mr Peter Scott, orthopaedic surgeon, on behalf of the defendant. He has provided a report, dated 16 March 2018.[10] She gave a history to him that she had sustained a left shoulder injury in 2011, was treated with injection therapy and physiotherapy, from which she made a good recovery.[11] Despite that history, she swore, in her affidavit, matters in the following terms.
[10]DCB 51-62
[11]DCB 53
18 In her first affidavit, which was sworn on 17 August 2018, Ms Trofimiuk swore, at paragraphs 9 and 10, that she began to develop pain in her right shoulder in about March 2011, and she consequently saw her general practitioner. He arranged for ultrasound, steroid injection and physiotherapy shortly thereafter. She swore that she then received referral to an orthopaedic surgeon, Mr Broughton, in April 2011, and was given a steroid injection, again, to the right shoulder. She swore that she then commenced physiotherapy and began taking Mobic.[12] That affidavit evidence was not amended in any way, despite the fact that she swore two further affidavits in this proceeding.
[12]PCB 2 at paragraphs 9 and 10
19 When opening the case for Ms Trofimiuk, Mr Fehring, who appeared with Mr Seeman for the plaintiff, took my attention to paragraphs 9 and 10 of her first affidavit. He opened by saying that he had taken the plaintiff to those paragraphs in conference and had also taken her to entries in the treating doctor’s notes prior to trial. No notes of the treating doctor were tendered. Mr Fehring said, in opening, that the notes showed that the treatment in March 2011 and April 2011 were actually in respect of Ms Trofimiuk’s left shoulder. Mr Fehring, in opening, said, further, that she had no memory of any treatment to her left shoulder when he pressed her about the issue in conference. Mr Fehring accepted that this was then an error in her affidavit. It was his submission that no amendment to the affidavit was necessary, given that she simply had no memory that her attendances in 2011 related to her left shoulder. However, he made no mention of the report of Mr Scott, which was in the Defendant’s Court Book, and which clearly recorded the history of the left shoulder injury.
20 In evidence, the defendant cross-examined Ms Trofimiuk about whether or not she recalled any injury to her left shoulder in 2011. She was adamant that she did not recall any injury to her left shoulder in 2011. She could not explain why she had sworn, in her first affidavit, that she had sustained injury to her right shoulder. She did not explain why she had been able to relay a history to Mr Scott some five months prior to swearing her affidavit, in which she recorded her left shoulder problems, and yet her affidavit contained this error. I am not convinced that this error is of any great moment, given that Ms Trofimiuk had declared to Mr Scott her left shoulder problems, and it was well recorded in the clinical notes. However, those notes were not tendered and the affidavit was not amended. This was a forensic decision made by her to proceed with the evidence in the form that it was, without any correction.
21 Having regard to the state of Ms Trofimiuk’s evidence and the record in Mr Scott’s notes, I find that she did not pay attention when swearing her affidavit and to some extent, though in a minor manner, it impacts on my assessment of the reliability of her evidence.
22 Ms Trofimiuk deposed that her right shoulder symptoms began to worsen in April 2012. She went back to see her treating doctor, Dr Derek Szyman. He saw her on 1 November 2012, with a complaint of nine months of right shoulder pain.[13] He referred her for ultrasound, which was conducted on 2 November 2012.[14] That showed no rotator cuff tear or tendinopathy. However, it was noted that there was impingement of the supraspinatus tendon on abduction.[15] It then appears that she saw another doctor, Dr M Ghattas, in early 2013, and received a further referral for ultrasound. That ultrasound was performed on 8 February 2013 and showed subacromial bursitis and no evidence of a rotator cuff tear.[16] She then returned to see Dr Szyman and was referred for an MRI scan of her right shoulder on 2 April 2013.[17] That showed mild to moderate supraspinatus tendinopathy, with no evidence of a rotator cuff tendon tear. Ultrasound-guided injection was then performed on 23 April 2013.[18] It appears that she saw Dr Ghattas only once at the Casey Superclinic.
[13]PCB 30
[14]PCB 47
[15]PCB 47
[16]PCB 48
[17]PCB 50
[18]PCB 49
23 Dr Szyman referred Ms Trofimiuk, with ongoing shoulder pain, to see Mr Ashley Carr, orthopaedic surgeon, who, it appears she saw on 21 August 2013.[19] There is no formal report from him which has been tendered. Rather, a letter which he wrote back to Dr Szyman has been tendered. He arranged for her to have steroid injection to the acromioclavicular joint on the right side and considered that if there was no ongoing relief, then she may benefit from surgical intervention in the form of a joint excision.
[19]PCB 36
24 Ms Trofimiuk did not take up any option for surgery, and there is no further material from Mr Carr to indicate what treatment he offered her. It appears, from a medical report dated 10 June 2019 from Dr Szyman,[20] that he last saw her on 8 September 2014 regarding her right shoulder. At that point, the plaintiff was working her full-time normal duties with Eurofins and had stopped taking anti-inflammatory medication.
[20]PCB 30-31
25 Ms Trofimiuk stated that she was made redundant in October 2014, and at that time, she was taking Mobic and Panadol. It is unclear how she was taking Mobic at this time, as she had ceased seeing Dr Szyman, her usual treating doctor. There were no notes tendered to support that assertion.
26 Ms Trofimiuk then spent some time looking for work and it appears that in mid-2015 she re-applied for a position as a laboratory assistant with Eurofins.[21] In addition, she provided her curriculum vitae with the application, which was also tendered. I mention that, simply because it outlines the various skills and experience that she had.
[21]Those documents were tendered at page 107 of the DCB
27 Ms Trofimiuk deposed, in her first affidavit dated 17 August 2018, that she enjoyed working in a role as a laboratory assistant, but that “… I will probably never do that again as such jobs are physically demanding”.[22] It was put her in cross-examination, that this statement was incorrect because she, in fact, had applied for the position of a laboratory assistant with Eurofins in 2015. She, in my opinion, did not explain adequately why she made this comment contained at paragraph 28 of her first affidavit when she had, in fact, applied for the job in 2015. Further, she made no mention of this job application in her affidavit. Mr Fehring, in closing, submitted that the job she had applied for was one in which it was unknown as to what duties it involved. However, I consider that she well knew what a laboratory assistant’s role involved at Eurofins when she applied. Furthermore, she knew when she swore her affidavit that she had applied for a full-time position with Eurofins in 2015, in anticipation of being able to complete the duties of that role, and chose not to disclose that fact. This matter tells against the reliability of Ms Trofimiuk’s evidence. I also consider the fact that she worked on through to 2014 with her right shoulder difficulties, as they were, on a full-time basis, without any reduction in work hours or any specific periods of time off work, as good evidence of her capacity to perform laboratory assistant duties. It is a real question as to whether she would have left work if she was not made redundant.
[22]PCB 4 at paragraph [28]
28 I consider this to be an example of Ms Trofimiuk’s unreliability in the giving of her evidence. I consider that, at times, she sought to embellish her symptoms and her situation to suit her case. While she otherwise appeared to give direct and honest answers, there were certainly several instances where she did seek to embellish and exaggerate.
Causation
29 Given my findings as to the nature of Ms Trofimiuk’s work, I find consistently that her work duties contributed to the development, aggravation and acceleration of Ms Trofimiuk’s right shoulder injury. This is consistent with the vast majority of the medical evidence. Her treating doctor, in a Claim Form questionnaire for WorkSafe dated 9 September 2013,[23] opined that her work duties were consistent with the right shoulder problems that she developed. The treating doctor’s letter from the Casey Superclinic dated 8 September 2018[24] similarly links her work duties with her right shoulder injury. Though given how few times she was seen there, this opinion is of limited value. Mr Carr does not give any opinion as to causation, and no material has been able to be obtained from Mr Broughton. The contemporaneous records from the treaters, however, in my opinion, support the finding I have made.
[23]PCB 27-28
[24]PCB 32
30 In the medico-legal opinions obtained on behalf of the defendant, Dr Geoffrey Graham, in his report of 15 August 2013,[25] provided support for this finding also. Though he is an occupational physician and does defer to orthopaedic opinion, he does make a preliminary contemporaneous finding that the work history is consistent with the right shoulder injury.[26] Mr Jonathan Hooper, orthopaedic surgeon, in a report dated 24 September 2013,[27] considers that the work duties have resulted in an aggravation of tendinopathy.[28]
[25]DCB 5-10
[26]DCB 8
[27]DCB 20-23
[28]DCB 21
31 Dr Peter Boys, orthopaedic surgeon, in a report dated 16 May 2014,[29] considered that Ms Trofimiuk has chronic subacromial bursitis with positive impingement,[30] caused predominantly by the history of her pushing on doors. In a further report dated 11 March 2015,[31] Dr Boys noted that she had been recommended for surgery but was unwilling to undergo it, and that she was seeking employment as a laboratory assistant, a receptionist or a pathology worker. He considered her condition to be work related.[32]
[29]DCB 20-31
[30]DCB 27
[31]DCB 32-39
[32]See DCB 38 and DCB 48 for his later report dated 24 July 2015.
32 In summary, that more contemporaneous medico-legal opinion from the defendant supports the finding that Ms Trofimiuk’s condition is work related. The later medico-legal material of Mr Scott which I have referred to, for the defendant, and also Mr Roger Westh, in his reports,[33] finds that she has a work-related injury which he described as a “soft tissue injury with aggravation of rotator cuff tendinopathy with some resultant impingement”.[34] He confirmed this in his supplementary report and it appears to have been similarly accepted by Mr Rodney Simm, orthopaedic surgeon, for the defendant, in his report of 6 December 2018.[35]
[33]PCB 43-46
[34]PCB 44
[35]DCB 63-68
33 It is to be noted that Mr Simm, in his latest report of 30 April 2019,[36] seems to have reversed his position on causation.[37] This seems to occur after the defendant provided Mr Simm with video surveillance evidence showing Ms Trofimiuk performing a number of activities: gardening, riding a bike and shopping. Mr Simm, in the broad, considered that such activities showed a broader range of activities than he would have expected and, on that basis, he seemed to come to a different conclusion on causation. In my opinion, the video evidence could only go to illuminate the level of impairment that she currently suffers and does not touch on, or could be used to support, a different conclusion as to causation. For that reason, I place much greater weight on the other medical evidence in this proceeding and decline to adopt the approach of Mr Simm in considering the question of causation. It also seems that, broadly speaking, the medical evidence speaks as one in diagnosing Ms Trofimiuk’s condition, being, as described by Mr Westh, an aggravation of rotator cuff tendinopathy with some resultant impingement.
[36]DCB 69-73
[37]DCB 72
34 In summary, I find that Ms Trofimiuk has suffered an injury to the right shoulder in the terms just described, which has been caused by her employment in compensable circumstances.
35 Given that finding, it is not necessary for me to consider the point raised by Ms Trofimiuk as to the effect of Ansett Australia Ltd v Taylor,[38] where it was held that the acceptance of a claim for statutory benefits can act as a factor in support of there being a compensable injury.
[38][2006] VSCA 171
Assessment of the consequences of the impairment of the right shoulder
36 Ms Trofimiuk claims there are three major consequences which have arisen as a result of the right shoulder injury. First, her pain consequences; second, the impact on her work and, third, the impact on her sport, recreational, social and home activities.
The Plaintiff’s credit
37 Ms Trofimiuk was born in Poland and learnt English as her second language. She swore three affidavits in this matter. None of those affidavits were sworn with the assistance of an interpreter. She has attended numerous medical appointments with medico-legal practitioners and none of those have been conducted with an interpreter. In the course of giving evidence, she did at times appear to be struggling with the nuances of the questions put to her. Some of this related to a language barrier. I did not form the view that she was unable to clearly understand the questions put to her on account of her language skills. At one point the matter was stood down for her counsel to consider whether or not the language difficulty, as it was, was sufficient for her to require an interpreter. Her counsel was of the view that she did not need an interpreter. The matter then proceeded. I considered that she was attempting to answer questions as best she could. As I have previously noted, I consider her evidence to be unreliable in parts and, in other parts, to be exaggerated to suit her claim. The following are examples of these matters.
38 The first relates to the recounting of injury to Ms Trofimiuk’s right arm deposed to in her first affidavit, when, in fact, she had given an alternative history to Mr Scott, as pointed out above. This was not adequately explained by her in further sworn evidence.
39 Second, as pointed out above, Ms Trofimiuk swore in her affidavit at paragraph 28,[39] that she would never do a laboratory assistant’s job again, as it was physically too demanding. She was then presented with her job application for a laboratory assistant’s job in 2015 at Eurofins. Her explanation was that she only applied for the job because she was required to do so. Having watched her closely in the course of giving that answer, I formed the view that she was trying to explain away why she had applied for a laboratory assistant’s job with Eurofins in 2015, yet deposed she could not work as a laboratory assistant.[40] Given the fact that by this stage, she had only lost her job seven months prior because she had been made redundant, it seems entirely likely that she was able to return to Eurofins and work in that position, especially given that the two issues causing her problems – the heavy doors and the manual crushing – had both been automated. The fact that in 2018, she swore an affidavit deposing to the contrary, supports my finding that she was seeking to exaggerate the impact the injuries have had on her.
[39]PCB 4
[40]PCB 6 at paragraph 7
(i) Pain
40 In Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria,[41] the Court of Appeal affirmed that, in considering pain consequences, it is necessary to look at the intensity, frequency and duration of the pain and its consequences. Here, it is submitted that Ms Trofimiuk is a stoical person who ought not be penalised for simply trying to get on with her life and perform tasks such as working and recreational activities, such as riding her bike or going shopping, as shown in the surveillance videos. While I accept that she might well have a stoical attitude to life, I am also mindful of my finding that she has appeared to embellish some aspects of her evidence and be unreliable in other parts. Here, she stated in her first affidavit that she was in constant pain of 6 out of 10,[42] and as a result took Panadol between one and three times per week. She further stated that she continued to take Mobic after ceasing her employment in 2014. As mentioned earlier, it is unclear how she continued to take Mobic after ceasing to see Dr Szyman in September 2014, given this is a prescription medication. There is no independent material to support the fact that she took Mobic on an ongoing basis. I decline to accept her evidence on this point.
[41][2013] VSCA 46
[42]PCB 3
41 In Ms Trofimiuk’s second affidavit dated 27 May 2019, she deposed that she was taking Nurofen once to twice per week, and Panadol, and also an ointment. In her third affidavit sworn 9 September 2019, she deposed that she was taking Nurofen three times per week (two to four tablets per day, and ointment). At the trial, she gave evidence that she was taking Nurofen three times per week.
42 In the report of Mr Westh of 21 March 2019,[43] he noted that Ms Trofimiuk’s pain varied between 3 to 7 out of 10, and increased, on average, three times per week. This is consistent with the history given to Mr John Salmon in his report dated 28 August 2018.[44]
[43]PCB 43
[44]PCB 37-40
43 Ms Trofimiuk seemed to depose consistently, and give histories to the various doctors, that her pain worsens when the weather is cold. She also seemed to suggest in evidence that extra driving of the community bus during her work hours caused fatigue on her arm.
44 Ms Trofimiuk also gave evidence that the pain in her shoulder might wake her up once or twice per week.
45 I find that Ms Trofimiuk suffers from pain of a low to moderate intensity, which she manages adequately with non-prescription painkillers. I find that she has not required any stronger painkilling medication for many years, and certainly not since 2015. In addition, she has no ongoing physiotherapy, massage or hydrotherapy. Even though she deposed that cold weather worsens her problems,[45] this does not seem to cause any change in her treatment.
[45]DCB 9
46 Ms Trofimiuk’s daughter, Pola, swore an affidavit on 14 June 2019. In that affidavit, she noted that when her mother was in severe pain she was irritable and would lie down.[46] She noted that when her mother worked long hours, or it had been an intense day, she would complain of experiencing severe pain.
[46]PCB 12 at paragraph 8
47 Pola swore a further affidavit on 11 September 2019. It did not touch on Ms Trofimiuk’s experience of pain further. Ms Trofimiuk’s other daughter, Aniela, also swore an affidavit on 25 July 2019. In that affidavit, she deposed that she noticed her mother’s pain from her right shoulder worsening and requiring her to stay home on sick leave far more often. No specific leave certificates were tendered or referred to by Dr Szyman. Without that corroborative evidence, and in the circumstances of this case, I do not accept this evidence despite Aniela not being called for cross-examination.[47] She also commented, at paragraph 11 of that affidavit, that her mother’s sleeping habits had changed since the time of the shoulder injury. Aniela swore a further affidavit on 11 September 2019.[48] That affidavit did not deal with the pain that Ms Trofimiuk alleged that she experienced.
[47]Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8 at paragraphs [44] to [48]
[48]PCB 19
48 The affidavits of both daughters do not descend to detail as to the frequency of the pain experienced by Ms Trofimiuk. Synthesising all the evidence as to pain consequences in the case, and having listened to the evidence of Ms Trofimiuk, I conclude that while she may have embellished her evidence as to her pain levels, on account of the credit matters referred to above, I find that she has pain of a moderate intensity for which she uses non-prescription painkillers. I find that it, at times, pain does disrupt her sleep, and is worse when she has extra driving duties at work.
(ii) Impairment consequences for work
49 As set out above, I find that Ms Trofimiuk could return to her employment as a laboratory assistant with Eurofins at the time she was made redundant. I note that at that time, the laboratory assistant position did not require her to manually open doors or do grinding with a mortar and pestle. I find that Ms Trofimiuk has open to her, ranges of jobs which are suitable for her skills, as set out in her curriculum vitae.[49]
[49]DCB 109
50 I find this is consistent with the report of Dr Boys on 11 March 2015,[50] where he took a history that Ms Trofimiuk would like to seek employment as a laboratory assistant or, alternatively, as a receptionist or pathology worker. He believed that she could work in these roles with limitations on reaching and overhead lifting activities. He also believed that she could work as a receptionist, pathology courier or pharmacy sales assistant.
[50]DCB 35
51 Mr Fehring put that Ms Trofimiuk had lost a substantial amount of her employment capacity by reason of this injury.
52 For the reasons set out immediately above, I find that Ms Trofimiuk has sustained some modest limitation on her work capacity, but that she has retained the vast majority of it. In making this consideration, I am mindful of the fact that it is important to not only consider the capacity which has been lost, but also that which has been retained in order to make an appropriate assessment.[51]
[51]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
(iii) Effect on home duties
53 On 30 April 2019, Ms Trofimiuk attended upon Mr Simm on behalf of the defendant. He took a history that Ms Trofimiuk, as a result of her right shoulder injury, was unable to undertake any gardening. In Ms Trofimiuk’s affidavit of 27 May 2019, she deposed that she had never told any doctor that she could not do any gardening.[52]
[52]PCB 6 at paragraph 9
54 Ms Trofimiuk was shown video surveillance of her on 22 December 2018 where she was shown bending over to do some gardening. When asked to explain this in her affidavit, she described it as simply being “light gardening”, and she was referring to not being able to perform “heavy gardening” in her affidavit.
55 At trial, under cross-examination,[53] Ms Trofimiuk stated that the type of gardening shown in the video was not gardening that she had done at all through 2018. It was then put to her that she had told Mr Simm that she was unable to do gardening.[54] On the one hand, she had told Mr Simm she was unable to undertake any gardening. Then, in her affidavit, she said that she had never told anyone that she could not do any gardening. Then, in her evidence at Court, she said that she could do “light gardening” but not “heavier gardening”, and then had said that, in fact, she had done no gardening whatsoever through 2018, except for the episode captured on surveillance.
[53]T48, L13
[54]T48, L29
56 In total, I consider her evidence on this point to be contradictory and to be unreliable. I consider it to be in keeping with an effort to embellish her symptoms.
57 Ms Trofimiuk deposed that she requires help around the home to perform activities like shopping or housework. This is supported by the evidence of her daughters.[55]
[55]Affidavit of Pola Trofimiuk, PCB 11 at paragraph 5; affidavit of Aniela Trofimiuk, PCB 17 at paragraph 8 (confirms no gardening at all at T50, L13)
58 I find that Ms Trofimiuk is restricted in the way that is described by her in her affidavits and deposed to, particularly, by Pola Trofimiuk, as to her ability to do shopping and housework.[56]
[56]PCB 12, paragraph 5
(iv) Socially
59 I accept Ms Trofimiuk’s evidence that she is socially less active than she used to be, particularly in respect of Polish dancing activities, which Aniela deposed to. I also note the history of Ms Trofimiuk drinking more alcohol as a result of the pain that she is in.
(v) Recreational and sporting pursuits
60 Ms Trofimiuk deposed that she has lost her ability to play badminton, which was an activity which she enjoyed as a family social and sporting pastime. It was put, for the defendant, that Ms Trofimiuk’s description of her badminton was embellished.
61 Ms Trofimiuk suggested, in evidence, that she played badminton every day, or nearly every day, with her family, from about the time that she was in Switzerland until the time of her injuries. It was put that this was perhaps a family activity when her children were young and would not be pursued once they had grown further. Ms Trofimiuk accepted that now that her children are young adults, they would not be playing badminton with her every day, as they have got their own lives.[57]
[57]T53, L20-22
62 It was further put that Ms Trofimiuk had never played competitively or attempted to join a sporting club. Ms Trofimiuk said that it was not necessary for her to join a club,[58] and gave evidence that she would have pursued this badminton socially after her children had grown up, even if her husband was no longer with her.
[58]T53, L28
63 In keeping with my earlier assessment of Ms Trofimiuk, I consider this evidence to be embellished. I have no doubt that badminton was an enjoyable pastime for her and her family, but it seems unlikely, given the age of her children, to have been an ongoing family pastime played as routinely as she suggested after her right shoulder began to trouble her in 2012, when the children were twelve and fifteen respectively. The ability to play badminton, now, seems to have been taken away from Ms Trofimiuk, but she has developed other pursuits such as riding a bike. This is, in part, depicted in the video surveillance. There, Ms Trofimiuk can be seen riding very competently and with a degree of confidence.
64 This is a significant pursuit for Ms Trofimiuk, which she can pursue with her friends or her children. It is also a social activity.
65 I note that Ms Trofimiuk has been on holidays in recent years, both to Tasmania and Poland. Though she gave evidence that her right shoulder injury limits her enjoyment of long drives or going to the beach, on my assessment of the medical evidence, I am not convinced that this is the case. I note she did not depose in her three affidavits as to these matters.
66 When synthesising all of the above factors, I find that Ms Trofimiuk has retained a significant capacity in respect of her home, recreational and sporting pursuits. I note that she has retained the vast majority of her capacity for work. This is not to deny that she has sustained an injury to her right dominant shoulder, which has caused some limitation of the function of that body part.
67 Decisions as to whether or not such impairment consequences reach the requisite standard are assessments of impression and degree. When balancing all the competing factors, I find that while Ms Trofimiuk’s impairment consequences could be considered “marked”, they could not fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
68 For the above reasons, I would dismiss Ms Trofimiuk’s application and I find for the defendant.
69 I will hear the parties as to the question of costs.
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