Walker v Victorian WorkCover Authority
[2020] VCC 1962
•11 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01788
| MARIE EVELYN WALKER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2020 | |
DATE OF JUDGMENT: | 11 December 2020 | |
CASE MAY BE CITED AS: | Walker v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1962 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 in respect of pain and suffering – right shoulder injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235
Judgment:Leave granted to the plaintiff to issue proceedings for pain and suffering damages as a consequence of a work-related injury to her right shoulder on or about 10 March 2017.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell QC with Mr L Allan | Arnold Dallas McPherson |
| For the Defendant | Mr R Stanley | IDP Lawyers |
HIS HONOUR:
1 The plaintiff brings an action pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence a claim for damages for pain and suffering only with respect to a right shoulder injury she suffered in the course of her employment with Circa Pty Ltd (“the employer”) on or about 10 March 2017.
2 In bringing such an application, the plaintiff must prove that she suffered a “serious injury” in terms of the Act, which states:
“serious injury means —
(a) permanent serious impairment or loss of a body function … .”
3 The application is supported by three affidavits of the plaintiff, sworn 13 December 2018, 18 December 2019 and 26 March 2020 (exhibit A), and an unsworn statement of the plaintiff’s daughter, Chanelle Kelly-Waihirere, dated 13 April 2020 (exhibit B). The plaintiff also relies on a number of medical reports from treating doctors, together with a number of reports from medico-legal practitioners.
Background
4 The plaintiff was born in October 1954, and was sixty-two years old at the time of her injury on 10 March 2017. She was born in New Zealand and completed Year 10 at secondary school.
5 The plaintiff moved to Australia in 1974 and worked at a bank as a data processor. Thereafter, she was out of the workforce looking after three young children. In approximately 1982, she moved to Papua New Guinea with her husband, and then moved back to New Zealand in 1984 and worked as an enrolled nurse for a number of years.
6 In 2010, the plaintiff moved back to Australia and was engaged in some cleaning work in a gymnasium, before commencing employment in May 2013 as a cleaner with Victoria Supermarket Cleaning Pty Ltd. In this employment, she worked at Collins Square at 747 Collins Street, and became a full-time employee of the employer in November 2015, when it took over the cleaning contract for Collins Square.
7 The plaintiff alleges that her duties as a cleaner with the employer involved repetitive heavy manual handling, including moving heavy bins.[1]
[1]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 5
8 It is common ground the plaintiff developed severe right shoulder pain on 10 March 2017 whilst manoeuvring Wheelie-bins in the course of her employment. She stopped work, attended her general practitioner, and underwent an ultrasound of the right shoulder.
9 On 17 March 2017, the plaintiff completed a WorkCover claim, which was accepted, and payments were made.
10 The plaintiff returned to work with the employer performing light duties after about a week off work, but she had her right arm in a sling.
11 The plaintiff was referred to orthopaedic surgeon, Mr Richard Dallalana, who performed right shoulder surgery at Knox Private Hospital on 19 June 2017.[2]
[2]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 12
12 Following surgery, the plaintiff’s right arm was in a sling for about six weeks, and she underwent physiotherapy treatment.
13 In October 2017, the plaintiff returned to work on a part-time basis, having worked up until the operation in June 2017. She made a graduated return to full-time duties by approximately March 2018.[3] As to her ongoing symptoms, while she was performing virtually full duties in 2018, she swore:
“I continue to suffer constant fluctuating right shoulder pain. The pain varies. My right shoulder pain is made worse by activities such as reaching and lifting with my right arm. I experience regular sharp pains radiating from my right shoulder down my right arm. At times my right shoulder pain is severe. On these occasions, I experience a burning sensation in my right arm. My shoulder really aches in cold weather. I have restricted movement in my right shoulder. I have lost a lot of strength in my right arm.”[4]
[3]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 16
[4]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 17
14 Throughout 2018, the plaintiff swore she took medication for right shoulder pain “including Oxycodone and Codcomol”. She also took Restavit “to help me sleep”.[5]
[5]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 20
15 As a consequence of the right shoulder pain, the plaintiff swore she was restricted in her ability to undertake heavy lifting, forceful pushing and pulling, and overhead tasks involving her right arm.[6]
[6]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 21
16 In her first affidavit, the plaintiff swore:
“I resigned from my employment with the Defendant and ceased work on 7 December 2018. I resigned because I was struggling on an everyday basis at work because of my right shoulder pain. I worked with right shoulder pain every day. By the end of a day at work my right shoulder was generally tired and sore. I often had a hot shower or hot bath when I got home and did nothing but rest. By the end of a working week I was very sore and tired, completely exhausted. I have needed to work to support myself financially but just couldn’t keep going.”[7]
[7]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 22
17 As to interference with sleep, she swore:
“I have disrupted sleep due to right shoulder pain. I have three special pillows and a neck roll that I use each night in bed to prevent myself rolling onto my right side. If I roll onto my right side during the night, I get woken by pain. If I get woken by shoulder pain, it often takes me a while to get back to sleep. I get a lot less sleep now than I did before my right shoulder injury.”[8]
[8]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraph 23
18 As to other difficulties, she attested:
“I have difficulty with day to day tasks like putting on tops and doing up my bra. I have had to adjust how I perform these tasks because of right shoulder pain. I generally use my left hand now to wash my hair.
In the past, I used to enjoy gardening. Before I hurt my right shoulder, I was able to work in an unrestricted manner in the garden. Since injuring my right shoulder, I do much less gardening. I recently had to ask my neighbours to help me to move some pots at my house because I was unable to move them due to right shoulder pain.”[9]
[9]Exhibit A, plaintiff’s affidavit of 13 December 2018, paragraphs 24-25
19 In her second affidavit, sworn 18 December 2019, the plaintiff swore that she basically continued to suffer the symptoms and consequences with respect to the right shoulder as set out in her first affidavit.[10]
[10]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 3
20 The plaintiff also swore that at the time of her resignation, overhead activities were causing her increased shoulder pain.[11]
[11]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 5
21 When she moved to New Zealand, the plaintiff sought treatment from general practitioner, Dr Koriki Love, and first attended on 9 January 2019. She was referred to physiotherapy.[12]
[12]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 6
22 The plaintiff also developed neck pain in March 2019 while manoeuvring furniture at home, and had some physiotherapy treatments, and thereafter her neck pain “settled”.[13]
[13]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 7
23 Further, the plaintiff swore:
“In July 2019 I had a flare-up of right shoulder pain when I slipped getting into the bath. I landed on my right elbow. I also had right chest, right shoulder and neck pain following the fall. I went to Whakatane Hospital. I had x‑rays performed. I was told there was no damage showing up on the x‑rays. I had some physiotherapy treatment. My right shoulder pain has since returned to how it was before this flare-up.”[14]
[14]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 8
24 At the time of swearing this affidavit, the plaintiff stated she was seeing her general practitioner as needed for right shoulder pain, and she was currently having physiotherapy treatment once or twice a week.[15]
[15]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 10
25 The plaintiff also swore that she was no longer taking Oxycodone or Codcomol but was taking “Panadol and Ibuprofen for right shoulder pain”.[16]
[16]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 11
26 The plaintiff further swore:
“As a consequence of right shoulder pain, I continue to be restricted in my ability to sleep through the night, put on and take off tops and bras, wash my hair and perform heavy jobs in the garden and around the house.”[17]
[17]Exhibit A, plaintiff’s affidavit of 18 December 2019, paragraph 12
27 In her final affidavit, sworn 26 March 2020, the plaintiff attested:
“Little has changed regarding my right shoulder injury since swearing my second Affidavit.”[18]
[18]Exhibit A, plaintiff’s affidavit of 26 March 2020, paragraph 3
28 The plaintiff also swore:
“For my right shoulder, I continue to attend my GP, Dr Love, as needed. My GP has told me that there is not much he can do for my right shoulder because I don’t like taking medication due to the side-effects. I have physiotherapy at Tutua Physio once a week. I also use hot water bottles for right shoulder pain. I have three hot water bottles at home.
I continue to suffer constant, fluctuating right shoulder pain. The pain is my right shoulder is severe at times. When I have flare-ups of severe pain, I generally take extra medication, put a heat pack on my shoulder, rest and wait for the pain to settle. I often sit down and prop my arm up using cushions when I have a flare-up.
I continue to have difficulty with heavy lifting with my right arm. If I use my right arm repetitively I experience pain and tightness in my right bicep. I have restricted movement in my right shoulder. I have lost a lot of strength in my dominant right arm. I have continued to experience mild left shoulder pain on and off.
I take Panadol and Ibuprofen for right shoulder pain as needed. I occasionally take Oxycodone and/or Codcomol for flare-ups of severe pain but I continue to avoid taking strong medication because some of these medications cause me constipation.
As a consequence of right shoulder pain, I continue to be restricted in my ability to sleep through the night. I toss and turn every night in bed. I get woken by shoulder pain most nights. I generally feel tired during the day due to disrupted sleep. The last few weeks I have been sleeping particularly poorly because of right shoulder pain.
I still have difficulty putting on sleeves on tops and jackets due to right shoulder pain. I have had to alter the way I put on a bra due to shoulder pain.
Washing my hair remains difficult for me because of right shoulder pain. I have long hair. When I wash my hair it is awkward and I have to rely on my left hand a lot more than before. Sometimes my daughter helps me wash my hair. I don’t like asking my daughter for help. I was previously very independent and self-sufficient. It upsets me that I now need to rely on others for assistance with simple tasks that I could easily do on my own before my shoulder injury.
My son-in-law basically does all of the gardening and mowing at our place. I do what I can to help out with house work but I am restricted in what I can do around the house due to right shoulder pain. I need to be careful to avoid aggravating my shoulder.”[19]
[19]Exhibit A, plaintiff’s affidavit of 26 March 2020, paragraphs 6-13
Cross-examination of the Plaintiff
29 In cross-examination, the plaintiff considered that she had returned to full-time duties throughout 2018, and that, although she had stopped emptying heavy bins, she performed her regular work, which had in fact increased during the year.
30 Further, she admitted that when she tendered her resignation in a conversation with her supervisor, Nishat Sutana, she had mentioned that she was returning to New Zealand because her nephew was in a coma and needed assistance.
31 Further, the plaintiff admitted sending a text message in November 2018 to her supervisor to the following effect:
“Hi Maria, Marie Walker here, as you know I need to return to NZ., so I officially resign giving 2 Weeks notice. The 7th December will be my last day. I’m sorry to go but Family obligations make it necessary. Apologies expressed deeply. You all know that I love working at Collin’s Square. I’m sorry but I have to go.”[20]
[20]Exhibit 3, text message from plaintiff to Maria Madrid of November 2018, Defendant’s Court Book (“DCB”) page 65
32 The plaintiff also conceded in cross-examination that she had pain in other parts of her body, being low-back pain and neck pain, on the basis that “I am getting older and I have pain in various parts of my body”.
33 The plaintiff also conceded that after the fall in the bathtub in mid-2019 whilst in New Zealand, she underwent a period of physiotherapy for her neck, back and right shoulder.
34 The plaintiff also conceded that the only restrictions that she had told her treating general practitioner, Dr Love, about were to do with hanging out washing, leading to a modified clothesline, and she was unable to lift her heavy box of tools.
35 The plaintiff also conceded the history obtained by Dr Love in his report of 6 March 2020 that she was no longer taking any analgesia.
Statement of the Plaintiff’s daughter, Chanelle Kelly-Waihirere
36 The unsworn statement of the plaintiff’s daughter was admitted into evidence (exhibit B). During the plaintiff’s visit to her daughter in the school holidays of October 2018, the plaintiff was unable to assist in painting the daughter’s bathroom during renovation. The daughter stated:
“She was upset that she was not able to help and when I urged her to talk about it, my mother became upset, breaking down and explaining that she can no longer be involved in such activities.”[21]
[21]Exhibit B, affidavit of Chanelle Kelly-Waihirere of 13 April 2020, paragraph 3
37 Further, the daughter attests that her mother can no longer drive:
“as she finds it painful and lacks the confidence. ... The uneven roads cause significant pain in her shoulder and [she] has even burst in to tears because her pain is so severe.”[22]
[22]Exhibit B, affidavit of Chanelle Kelly-Waihirere of 13 April 2020, paragraph 5
38 Further, the daughter states that her mother:
“requires assistance getting in or out of the bathtub, especially in winter when her shoulder pain is worse. She also has difficulty getting in and out of her bus and my husband had to build stairs and safety rails to assist her with this. My husband has also built mum a modified washing line. This washing line is easily lowered to below her shoulder height as she is unable to hang her washing above shoulder height due to pain and restricted movement of her right shoulder.”[23]
[23]Exhibit B, affidavit of Chanelle Kelly-Waihirere of 13 April 2020, paragraph 6
39 The daughter further states:
“When mum goes to the movies with myself and my family, she finds it difficult to sit in the one spot for any length of time due to her shoulder pain. She often needs to get up and move around during the movie.”[24]
[24]Exhibit B, affidavit of Chanelle Kelly-Waihirere of 13 April 2020, paragraph 10
Medical evidence
40 The plaintiff’s treating orthopaedic surgeon, Mr Richard Dallalana, reported to the referring general practitioner on 2 May 2017 (exhibit C). He stated:
“Marie’s ultrasound shows a full thickness supraspinatus tear and I have advised her she has this repaired at her age and whilst still working. The prognosis is better with an intact rotator cuff rather than treating the tear with injections where there is no expectation of healing. I shall ask her to see her treating physiotherapist to coordinate her postoperative rehabilitation, involving progressive exercises for the shoulder over a period of 4-6 months. Return to supervisory work may be possible at 6-8 weeks, light manual at 3 months, and full duties including all hands-on tasks at 4-5 months all going well.”[25]
[25]Exhibit C, report of Mr Richard Dallalana of 2 May 2017, Plaintiff’s Court Book (“PCB”) page 23
41 It should be noted the plaintiff conceded in cross-examination that she had returned to virtually full duties and had not needed to re-attend Mr Dallalana for review.
42 The plaintiff was also examined for medico-legal purposes by orthopaedic surgeon, Mr Douglas Gardiner, who reported on 4 December 2018 (exhibit D). Mr Gardiner took a history that surgery was performed by arthroscopy and repair of the right rotator cuff on 19 June 2017.[26]
[26]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 25
43 As to her current complaints, the plaintiff said that she still experienced stiffness and pain in the right shoulder and that she had difficulty with any repetitive tasks or activities above chest level with her right upper arm. She was sleeping satisfactorily but needed to prop herself up on pillows so that she remained stationary during sleep. She had modified her domestic activities to cope with her disability, such that she was slower and less efficient. She also said that she had now decided to quit work as of 7 December 2018.[27]
[27]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 25
44 On examination, Mr Gardiner stated the plaintiff presented as a cheerful individual, exhibiting no illness behaviour. There was no muscle wasting compared with the left shoulder, but he did note that that shoulder was also injured. There was some tenderness generally around the anterosuperior aspect of the shoulder joint. There was no crepitus with active or passive movement. Impingement test was negative. There was some restriction of movement compared to the left shoulder.[28]
[28]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 25-26
45 Mr Gardiner stated that an ultrasound of the right shoulder dated 11 March 2017 showed a large rotator cuff tear involving the supraspinatus tendon with associated bursitis. There was also some retraction of tendon fibres and thickening of the subacromial bursa. The report also described bursal impingement during shoulder abduction.[29]
[29]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 26
46 It was Mr Gardiner’s opinion that –
“Ms Walker continues to experience significant dysfunction particularly in relation to her right shoulder such that she is now resigning from her employment as she is unable to comply with the increasing workload to which she is reportedly being subjected.”[30]
[30]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 27
47 Mr Gardiner considered the plaintiff to be unfit for her pre-injury duties for “the foreseeable future” and that she should confine her employment to four hours per day, three days per week, doing suitable work, and that such incapacity was permanent.[31]
[31]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 27
48 Functionally, Mr Gardiner considered –
“Ms Walker’s right shoulder causes her to suffer from significant restrictions with regard to her domestic activities. She needs to perform domestic chores with less weight and less frequency of activity. In particular, she is significantly restricted in activities at or above chest level as she is only able to abduct her right shoulder to approximately 90 degrees.”[32]
[32]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 28
49 Finally, he stated:
“The prognosis for the right shoulder is such that normal function will not be restored in the foreseeable future. I consider that Ms Walker will continue to suffer from pain, stiffness and consequent disability in the right shoulder for the foreseeable future with or without further conservative or operative treatment.”[33]
[33]Exhibit D, report of Mr Douglas Gardiner of 4 December 2018, PCB 28
50 The plaintiff also tendered in evidence the report of the New Zealand physiotherapist, Naumai Tutua, who reported on 21 February 2020 (exhibit E). She reports as follows:
“I have been treating Marie Walker for her right shoulder. She continues to have pain with any lifting activities. Marie has worked hard on strengthening her right shoulder but it is easily aggravated with lifting and reaching. She says she often gets pain and pulling when reaching for lower objects too. Consequently, this causes her to have right sided neck pain as she compensates for her shoulder and is now complaining of lower back pain too which is most likely another complication of trying to look after her shoulder while doing activities of daily living. I don’t think that Marie’s shoulder will improve much more than it is now as it has been too long since her injury and she will more just have to learn how to manage how it is now.”[34]
[34]Exhibit E, report of Naumai Tutua of 21 February 2020, PCB 29
51 Finally, the plaintiff tendered the report of her New Zealand general practitioner, Dr Koriki Love, who reported on 6 March 2020 (exhibit F). Dr Love took a history that the plaintiff had given up her job as a food court supervisor because of injuries to her shoulders. He also recorded a history that on 23 July 2019, she presented to the local hospital claiming that she had slipped in the bath and that she had re‑injured her right shoulder. Thereafter, she was getting physiotherapy treatment on a near weekly basis. At the time of the report, the plaintiff was complaining that both her shoulders were painful when she tried to lift heavy items such as her tools. He noted:
“Although she does not have full abduction of her right arm she is capable of performing activities of daily living comfortably. At times she has to make an adjustment for her shoulders such as lowering her washing line before hanging out her clothes and then raising it after this.”[35]
[35]Exhibit F, report of Dr Koriki Love of 6 March 2020, PCB 30
52 On examination, Dr Love noted:
“There is mild wasting on the lateral aspect of both deltoid muscles, a horizontal scar is noted below the right acromion. ... Tenderness was elicited over the spine of the right scapula.
...
All movements of the left shoulder were full ... Abduction of the right arm was limited to 100 degrees. The patient described pain in the right shoulder as it was moved through abduction. All other right arm movements were unrestricted.
The patient was able to reach up behind her back to a higher level with the left hand as compared to the right.
Pain was elicited in both shoulders on supraspinatus testing ...
There was limitation of neck lateral flexion bilaterally and tenderness over the C7 spinous process.”[36]
[36]Exhibit F, report of Dr Koriki Love of 6 March 2020, PCB 30-31
53 The defendant had the plaintiff examined by orthopaedic surgeon, Associate Professor Miron Goldwasser, who reported on 27 July 2018 (exhibit 1). He recorded the history of injury as follows:
“On the morning of 10 March 2017, she remembered pulling a 240 litre bin, which was empty and pulling it up an incline and also pushing another bin. She had a 240 litre bin in front of her, which she was pushing up the incline and a 240 litre bin behind her, which she was pulling.
Unfortunately, the wheels got caught in a railing and, in fact, ripped the railing out of the concrete and it resulted in a sharp jolt to her right shoulder and, for a moment, she thought she might have dislocated it and the pain was severe. She cried out loud and swore.”[37]
[37]Exhibit 1, report of Associate Professor Miron Goldwasser of 27 July 2018, DCB 19
54 As to her then-current symptoms, the plaintiff reported:
“There is pain, which affects her upper arm, from the shoulder area to her elbow and it is present more often than in her left shoulder and she estimates it is present about 80% of the time and the pain is more troublesome. It is also affected by activities such as reaching and lifting and this reduced to about 7kg where previously she could easily manage 20kg with her right arm.
She also has difficulty dressing, including doing up her bra and wearing sleeved garments for a considerable amount of time but now she is able to manage this. Over the last three months, she has not needed to use sports bras because of her improved function in her shoulders.”[38]
[38]Exhibit 1, report of Associate Professor Miron Goldwasser of 27 July 2018, DCB 21
55 As to medication:
“She still takes over-the-counter medication, Panadol, two to three times a week but no longer takes prescription medications.
She still uses heat and still gets up at night to change position when the pain wakes her and this occurs several times during the week.”[39]
[39]Exhibit 1, report of Associate Professor Miron Goldwasser of 27 July 2018, DCB 21
56 Associate Professor Goldwasser noted that with her left shoulder condition, the plaintiff was still active because she was naturally right handed and continued her normal activities, including gardening and cycling at that stage. He then noted:
“However, since her right shoulder injury, her activities have been further curtailed and she does much less gardening and has given up cycling.
She still manages to do household chores but does these slower, needs frequent breaks and has lowered her standards.
Since her second injury, she also walks less and she used to do frequent long walks with her friends or neighbours.”[40]
[40]Exhibit 1, report of Associate Professor Miron Goldwasser of 27 July 2018, DCB 22-23
57 On examination, Associate Professor Goldwasser found the plaintiff to be pleasant and cooperative throughout the consultation and clinical examination. He noted there was more prominence of the biceps in the upper arm close to the elbow compared to the left upper arm, and that would be consistent with a biceps tenotomy procedure.[41]
[41]Exhibit 1, report of Associate Professor Miron Goldwasser of 27 July 2018, DCB 23
58 Finally, Associate Professor Goldwasser considered that the right shoulder condition was unlikely to change substantially, and he considered that she had a permanent partial impairment pursuant to the appropriate tables.[42]
[42]Exhibit 1, report of Associate Professor Miron Goldwasser of 27 July 2018, DCB 25
59 The defendant also had the plaintiff examined by consultant orthopaedic surgeon, Dr Sanjay Joshi, who reported on 8 March 2019 (exhibit 2). Dr Joshi took a history as follows:
“Ms Walker reported that during the normal course of her work as a general cleaner [during 2018], which was more than the pre-injury duties, her shoulder used to become sore and due to ongoing pain she got fed up and resigned in December 2018. She mentioned that she wanted to carry on working till the age of 67 but resigned early due to ongoing shoulder issues and has now retired.”[43]
[43]Exhibit 2, report of Dr Sanjay Joshi of 8 March 2019, DCB 32
60 As to her current complaints, the plaintiff reported pain in the right shoulder on excessive activity and had some difficulty with overhead work. She had difficulty in sleeping on her side, and also reported pain in the cervical spine radiating to both trapezius areas, more on the right side.[44]
[44]Exhibit 2, report of Dr Sanjay Joshi of 8 March 2019, DCB 32
61 On examination, Dr Joshi found as follows:
“Her cervical spine has mild generalised tenderness in both trapezius and parascapular area. She has a full range of cervical spine movements. ... The right shoulder has no muscle wasting. She has mild tenderness over the acromioclavicular joint. There is no tenderness in the shoulder itself. ...”[45]
[45]Exhibit 2, report of Dr Sanjay Joshi of 8 March 2019, DCB 33
62 There were restrictions in the range of movement compared to the left shoulder.[46]
[46]Exhibit 2, report of Dr Sanjay Joshi of 8 March 2019, DCB 34
63 Dr Joshi considered that the injury reported in March 2017 caused an aggravation of pre-existing rotator cuff pathology, and there may have been an extension of the tear with increased pain.[47]
[47]Exhibit 2, report of Dr Sanjay Joshi of 8 March 2019, DCB 35
64 Dr Joshi considered the prognosis to be good, and that the plaintiff did not require further treatment. He noted:
“After recovery she performed in fact more strenuous duties as a general cleaner than she did prior to her injury. She did report some pain and tiredness at the end of the day due to ongoing work activity and hence reportedly resigned in December 2018. Now that she is not performing her regular cleaning activity the shoulder should not require any further treatment.”[48]
[48]Exhibit 2, report of Dr Sanjay Joshi of 8 March 2019, DCB 35
65 Finally, Dr Joshi considered that the plaintiff was able to perform her normal duties with her right arm.[49]
[49]Exhibit 2, report of Dr Sanjay Joshi of 8 March 2019, DCB 36
66 The defendant also tendered in evidence a further report from the treating orthopaedic surgeon, Mr Dallalana, dated 29 September 2017 (exhibit 4). In essence, he reported:
“She is expected to make a good recovery from this, and I have not made another formal review however have invited her to come back in for reassessment at any point if her eventual recovery is not adequate.”[50]
[50]Exhibit 4, report of Mr Richard Dallalana of 29 September 2017, DCB 66
67 The defendant also tendered a report from the Victorian treating physiotherapist, Mr Duncan Heilbronn, dated 19 September 2017 (exhibit 5), in which he noted back to the treating surgeon:
“Very few pain complaints.
Active range is good ... She is capable of lifting up to 4kg from ground to waist. She can lift overhead 1kg.
I would say it’d take 6-12 [weeks] to reach capacity which reflects full [return to work].”[51]
[51]Exhibit 5, report of Mr Duncan Heilbronn of 19 September 2017, DCB 67
68 Finally, the defendant also tendered clinical progress notes from the physiotherapist, Mr Heilbronn, dated 12 December 2017 to 9 January 2018 (exhibit 6). On 12 December 2017, it was recorded:
“full hours no problems.
not doing bins. only thing not doing.”[52]
[52]Exhibit 6, clinical progress notes of Mr Duncan Heilbronn, DCB 68
69 These findings were repeated on 19 December 2017, 4 January 2018 and 9 January 2018.[53]
[53]Exhibit 6, clinical progress notes of Mr Duncan Heilbronn, DCB 68-69
Analysis
70 Taken at face value, the consequences to the plaintiff emanating from her right shoulder condition include chronic pain, limitation in a wide range of domestic and industrial activities requiring conservative treatment, being analgesia on an intermittent basis, and being subjected to pain on activity.
71 As stated to counsel at the completion of final addresses, I found the plaintiff to be truthful and straightforward in her evidence in the face of persistent but fair cross-examination by defence counsel. Clearly, there was an inference open from the text sent by the plaintiff to her supervisor evidencing her resignation, which was referred to above.[54] It was put to the plaintiff squarely:
“It was your intention to pursue family obligations. Do you accept that, in reality, that was the situation?”
[54]Exhibit 3, text message from plaintiff to Maria Madrid of November 2018, DCB 65
72 The plaintiff’s reply was:
“No, I don’t. I accept that I wrote that but it’s not actually why I went. I was coming home from work night after night exhausted and then they would ask me to do more.”[55]
[55]Transcript pages 10-11
73 This evidence, given in a forthright and, as far as I could tell, not evasive way, was consistent with the histories given to the various doctors referred to above. I accept the plaintiff’s explanation. To my mind it is consistent with the cheerful and forthright way that she presented to all doctors on both sides in this matter. I consider it is consistent with a stoic, friendly person who would rather not “make waves”.
74 The evidence of the plaintiff’s daughter should also be accepted, as there was no attempt to cross-examine her or attack the plaintiff on the histories given. In particular, I note the evidence that the plaintiff was unable to assist in painting the daughter’s bathroom because of the shoulder injury and suffered pain in her right shoulder whilst travelling in the car, causing her to cry.
75 The present condition being causally related to the admitted work injury on 10 March 2017 leads me to the view that such consequences would amount to “more than significant or marked” and “at least very considerable” when compared to the range of impairments that County Court judges need to assess.[56]
[56]Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235 per Nettle and Osborn JJA
76 Accordingly, leave will be granted to the plaintiff to issue proceedings for pain and suffering damages arising out of her workplace injury on or about 10 March 2017.
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