Wilson v Victorian WorkCover Authority
[2022] VCC 818
•8 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04963
| VICKI ELIZABETH WILSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 May 2022 | |
DATE OF JUDGMENT: | 8 June 2022 | |
CASE MAY BE CITED AS: | Wilson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 818 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left shoulder – left knee – pain and suffering only – aggravation – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR
Judgment: Application in relation to the left shoulder dismissed. Leave granted to bring proceedings for damages for pain and suffering in relation to the left knee.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Arnold Thomas and Becker |
| For the Defendant | Mr R Stanley | IDP Lawyers Pty Ltd |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Alfred Health (“the employer”) on 11 July 2016 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4The body functions relied upon in this application are the left knee and left shoulder.
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the 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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I 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.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2][1994] 1 VR 436
12In this case, where there is a pre-existing left shoulder and left knee condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether any additional impairment resulting from the incident is serious and permanent.[3]
[3] Ibid
13The defendant’s case was that the plaintiff was significantly impeded by both her left knee and shoulder before the incident.[4]
[4]Transcript (“T”) 7
14The plaintiff relied upon four affidavits, and she was cross-examined. She also relied on an affidavit sworn by her husband, Bruce, in June 2021. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15The plaintiff is presently aged fifty-six, having been born in December 1965. She is right handed.
16In 2013, she suffered a left knee injury when she fell on it while on a bus which suddenly stopped (“the 2013 bus accident”). She was jolted from the back of the bus, landing on her left leg, causing the anterior cruciate ligament (“ACL”) to rupture, and that caused her to fall.
17She saw Mr Andrew McQueen, orthopaedic surgeon, who performed a knee reconstruction on 10 July 2013.
18In her first affidavit sworn 22 June 2020, she described how, after extensive therapy and then being strict with significant gym work to strengthen her knee, she believed she had a good recovery from the surgery.
Cross-examination
19The plaintiff agreed her current left knee and shoulder symptoms are the same as recorded by Dr Firestone and Dr Kierce, whom she saw in the first half of 2015 in relation to the 2013 bus accident.[5]
[5]T14
20When Mr Kierce saw her in May 2015, he recorded, under the heading “Present Complaints”:
“She indicated on diagrams that she continues to suffer with pain on the front and back of her left knee. She complains of a feeling of stiffness in the back of her knee when walking but can walk for 30 minutes usually but sometimes she has sharp pains in her knee and has to stop. She says that her left knee tends to lock on walking, the locking feeling is at the back of the knee which will occur about once a fortnight. Her left knee has not given way since the operation but it does feel insecure. She said she wouldn’t jump onto her left foot. She does not try to run as she’s not confident about her left knee. Kneeling is painful. She’s no longer able to wash the floors kneeling. She feels that she leans on her right knee more. The left knee has limited bending and hurts with squatting and lunging. There is no pain in the left knee at rest. She says she has some pain on stairs particularly when going down stairs which is worse than going up stairs.
Left shoulder
She indicates pain above the left shoulder blade which seems to radiate up into her neck. She suffers with headaches about once a week and she finds she has to keep her neck moving. She says she can move her left shoulder and that she can hang out the washing but the left shoulder tends to click. She feels like she has a chronic pain above her left shoulder. The left shoulder pain can interrupt her sleep. She has intermittent pins and needles in her left hand particularly affecting the index, middle and ring fingers.”
21When the plaintiff was seen by Dr Andrew Firestone, psychiatrist, in April 2015, under “Current Medical Complaints”, he noted:
“1.The left knee: she walks for half an hour on most days for pleasure and exercise. Occasionally there is a click accompanied by sharp pain and she has to stop and wiggle the knee after which she can proceed as before. However she can’t power walk as previously nor run nor do gym workouts. She feels unsafe on a ladder. She cannot bend her knee to kneel on the floor and now uses a mop while standing. Most serious for her is that she cannot play basketball with her sons she said.
2.The left shoulder and neck: low grade dull pain is constant in this area she stated and after a full day working at the computer, headaches develop. Panadol relieves this.”
22The plaintiff accepted she had the symptoms described by those doctors back in 2015, and that she gave an honest account of herself at that time. When it was suggested to her now, there was not much change from 2015, she said:
“… that sounds like that. But I did go back to extensive gym work and got myself fit after this. … I was actually doing a gym workout when the incident in 2016 happened.
…
It was a very bad incident on the bus, as was the 2016 incident. Totally separate but unfortunately very similar injuries.
…
… the outcomes would have unfortunately been very similar. However, the recovery hasn’t.”[6]
[6]T17
23She was having low grade dull pain in her shoulder in April 2015 as Dr Firestone noted. She would have constant dull pain coming on, particularly after working on the computer, and that would cause headaches. She would not call it low grade dull pain now.[7]
[7]T18
24She agreed, as Dr Firestone reported, that in 2015, after a heavy day at work, she got headaches, and that that pain interfered with her sleep occasionally.[8] When it was suggested there was not too much difference between how she was the day before the incident and today, she said:
“Yes, because you're not in this body and you don't know so I can only tell you there is a huge different so that's – yeah, unfortunately, there's nothing – you can't – yeah, it's very subjective so I can only tell you that it is a huge difference and it's ongoing.”[9]
[8]T35
[9]T36
25She denied her evidence that things had changed very much after the incident was really “gilding the lily” and missing the reality and not taking into account her recovery. Having seen the specialist in 2015, she returned to the gym, although not fully, and was able to do a lot of the activities that she could do prior to 2013. She attended set classes at St Kilda Baths, where she had been a member before 2013. She was only working part time, so there were a couple of days a week she could go. In addition to set classes in the morning, there was also Pilates. She had been doing these classes for maybe six or eight months before the incident.[10]
[10]T21
Left shoulder pre incident
26She agreed she may have had shoulder problems in 2008. She could not recall joint pain in her neck and shoulders, as Dr Kazerouni recorded that year. While that doctor described “chronic” pain, she could not recall longstanding problems with her neck and shoulders at that time. It was nothing she did anything about or took medication long term for.[11]
[11]T21
27“Possibly,” she recalled having pain in her left shoulder before the 2013 bus accident. “Maybe”, she recalled seeing her general practitioner, Dr Carmen, and a left shoulder scan being performed on 12 September 2012. “It rang a bell” that on 19 November 2012, she had a shoulder ultrasound, and the doctor was considering rotator cuff problems. The plaintiff thought the problem was caused by just lifting children at the time. She could not recall specific trauma.[12] She agreed that if she was having shoulder scans and ultrasounds, she must have been having pain in 2012.[13]
[12]T23
[13]T24
28She agreed that after the 2013 bus accident, she was complaining to her general practitioner about her shoulders.[14]
[14]T26
29She agreed that she told the Medical Panel that while in Canada in 2014, she had difficulty in hanging out the washing.[15]
[15]T26
30If it was recorded in August 2015 that she presented to Dr Sedeh with two years of bilateral shoulder pain, the plaintiff guessed that must have been the case but did not remember it being an ongoing major issue.[16] While the actual date was unclear, it seemed she had ultrasounds of each shoulder in August 2015.[17]
[16]T25
[17]T27
31She improved a lot from when seen by Mr Kierce in June 2015 to the said date. She had had six to eight months approximately of improvement – “luckily for me”.[18]
[18] T29
32In response to the suggestion that there was an eight-year history of nagging, persistent shoulder problems,[19] the plaintiff explained in between there was a lot of physiotherapy. She had tried a lot of different people like osteopathy, massage and an injection. The idea was so that she could push through and get on with life and start exercising and once again do everything. Unfortunately, there was the further incident in the 2016.[20]
[19]From 2008
[20]T29
33She did not think that she ever got better, she just had to get on with life. She had two kids. She wanted to get fit. She had put on weight and “sometimes you just have to push on and do what you need – have a couple of Panadol and do exercises because you have to … bring money unfortunately”. She would have loved to have sat on the couch. That was not possible.[21]
[21]T29
34While the clinical note on the ultrasound on 24 March 2016 read – “left shoulder pain recently worse”, left shoulder pain had been ongoing, and perhaps something at the gym exacerbated it that particular week. “Honestly, the shoulder pain is on and off but since 2016, it’s never off.”[22]
[22]T30
35She did not know why the shoulder pain would have worsened at that time, as the examiner noted. She could not recall there then being any suggestion of shoulder impingement.[23]
[23]T31
36When asked about the shoulder injection on 19 April 2016, she remembered getting injections but could not say when. Her doctor thought this would allow her to get on with life and exercise a bit more. When it was suggested this was an appropriate remedy because she was in persistent worsening pain, she said a lot of it was also to do with probably being able to get on with doing things as well. She did not remember the pain levels at that time. She disagreed she was getting worse. That was not how it appeared to her.[24]
[24]T32
37It was possible she was wanting to pursue further investigations and shoulder treatment as Dr Akhters advised the TAC in May 2016. She could not really remember that, but she would have been trying to get back to one hundred per cent. It was possible it was accurate if that was what the doctor had written down.[25]
[25]T33
38The shoulder injections seemed to be good in the very short term, mainly because they had anaesthetic, but in the long term, she was just trying to build up her muscles again in the gym – try everything that was offered to her by her specialist and general practitioner.[26]
[26]T34
39She denied the need for investigations and the injection meant she was not improving but rather deteriorating at that stage – “Not from where I sit, no, because I was able to push through the pain and improve in things that I could do.”[27]
[27]T34
40She conceded that her shoulder never got completely better, and she had ongoing shoulder pain, for which she needed treatment with injections, including a couple of months before the incident.[28]
[28]T35
41Counsel for the defendant was giving her too much credit suggesting she had experience with compensation claims before and that she knew that her pre-incident condition was relevant. She did not have any experience in the court system.[29]
[29]T36
42She did not leave out her earlier shoulder injury in her first affidavit. She was answering her counsel’s questions. It was not true that her second affidavit, which was silent about her earlier shoulder problem, was a deliberate attempt to mislead the reader.[30]
[30]T37
43She denied she was being evasive and contradictory, as the Medical Panel reported, when she told if she could not remember seeing any specialist for her shoulder, and that her left shoulder pain settled. She could not recall whether she initially needed pain medication just for her knee or also for her shoulder. She could not recall telling the Medical Panel that she believed she was fully recovered soon after the 2013 bus accident with respect to her shoulder. When it was suggested what she told the Panel would have to have been wrong, she said “I wasn’t having pain meds but, no, I didn’t fully recover, I have never fully recovered”.[31]
[31]T41
44She agreed Mr Miller possibly asked her about her shoulder condition before the incident when told he recorded a past history of neck and shoulder pain in 2008, which also settled. She doubted she had told him this, and that she was “keeping it mum” from the doctor.[32]
[32]T42
45“Possibly,” she had told Dr Sullivan about the left shoulder steroid injection in April 2016 “with no substantial significant assistance”, although she did not think they were her words.[33]
[33]T43
46She disagreed that injection was a fairly significant event in her life. She was just hopeful it was going to do something good, and she had “had a lot more worse” procedures than an injection. Her memory might not be as good as it was.[34]
[34]T44
47She denied that she told Mr O’Brien that she did not hurt her shoulder in the 2013 bus accident. She did not hide anything about that injury. The history is there for everybody to see. It was absolutely incorrect, when seeing him and doing her initial affidavit, that she was determined not to let the reader know about the extent of her pre-existing shoulder injury. She denied that was indeed quite a pattern of her reporting when Mr Kierce’s history also was put to her.[35]
[35]T45
48She confirmed in her 2015 shoulder affidavit she deposed that she had problems sleeping due to her shoulder and told Mr Kierce about similar problems in June 2015. While Dr Finnigan noted in June 2019 that her shoulder did not interfere with her sleep, she responded, “shouldn’t have”.[36] She suffers from sleep apnoea and receives treatment independently of her incident injuries.[37]
[36]T59
[37]T60- March 2018 gp’s notes
49Both the 2013 and 2016 incidents have impacted on her intimate life with her husband.[38]
[38]T60
50In the six to eight months before the incident, her shoulder did not affect her gym work, and she did just the gym work, which she could.[39]
[39]T55
Knees pre incident
51She could not recall why she had an MRI scan of her right knee in September 2011. There must have been some difficulties. She had earlier been referred to Mr McQueen by Mr Hoy in 1999 after the basketball injury.[40]
[40]T48
52She agreed that if the knee injury was significant and led to a reconstruction in July 2013. Later that year, they moved to Canada.[41]
[41]T49
53She agreed “of course”, as Dr Firestone reported in 2015, she had difficulties going to Canada and it was especially stressful because at first, she could hardly walk. There was a lot of pressure on the move with two children. She was in Canada until August 2014. She had difficulty while there because of the ice and snow with her knee that was still recovering from surgery. It was not really a very pleasant experience recovering from the surgery.[42] Perhaps she told the Medical Panel that during her time in Canada, her left knee was okay, not too bad.[43]
[42]T50
[43]T51
54She denied that post the 2013 surgery, her knee was continuing to cause problems. It was a ruptured ACL which was fixed, but it was never the same, and that is the problem she is going to have in the future unfortunately.[44]
[44]T53
55Mr McQueen told her that she had had a good result from the original surgery and confirmed that she was in a good place by the time of the incident. This was not inconsistent with what she told Dr Firestone and Mr Kierce.[45] She did have a complete recovery from the 2013 LARS procedure.[46]
[45]T56
[46]T56
56When it was put to her that Mr McQueen remarked post the second reconstructive surgery in 2016 that she was progressing well, she responded “that’s what surgeons do”. She had actually worked with a lot of surgeons, and they will never ever tell you something that they did was not good. There is nothing Mr McQueen can do for what is going on now, and that is why she had not been back to see him.[47]
[47]T57
57While Dr Finnigan reported in 2017 that her knee was much improved, it was improved from having a ruptured ACL.[48] His comment in his June 2019 report that she had resolved with surgery and could mobilise well, she agreed that luckily she could walk “it was great”. She could mobilise well and walk with no issue “thank goodness”. When it was suggested that she did not have any pain, she said “sometimes I don’t, which is good”.[49]
[48]T57
[49]T58
58She was told the settlement of a TAC claim was for her knee only. She received about $200,000 in September 2015.
The incident
59As at the said date, she was working three days a week at The Alfred at Sandringham in administration and booking officer-type roles.
60On the said date, when she was engaged in an exercise class run by Healthstream Fitness Club doing step ups onto a heavy park bench, her left leg gave way. As she felt to the ground, she twisted her left knee and landed heavily on her left side, in particular, her left elbow, which jarred her shoulder (“the incident”).
61She certainly knew she was doing an exercise class on the day of the injury. She could not say the exact dates of her membership at the St Kilda gym, but she was doing gym work. She could not say what exactly. She was doing gym three days a week and also exercises classes at work.[50]
[50] T65
62She participated in about ten to twelve of the employer’s classes before the injury. They were in blocks of eight weeks – twice a week for half-an-hour at lunchtime. Probably the first block started twelve weeks before the incident. There was an eight-week block and a bit of a break. She was into the second block of exercises when injured. As Sandringham Hospital did not have a gym, the classes were in a nearby park.
63The classes were open to all members of the staff regardless of their physical health. It was always women. The classes encompassed all from the nineteen-year-old gym junkie right through to the overweight sixty year old.[51] The instructor would ask if they had any issue, and they could just not do anything they did not want to do.[52]
[51]T69
[52] T69
64There would be a warm-up. One day they might do boxing and other days some mat work, a bit like a circuit.[53] Besides sitting on a mat or lying on a mat and stretching, they did things like squats or lunges.[54]
[53]T67
[54]T69
65In the boxing exercise, one class member wore large pads on their hands and was punched by the other. The exercise went for about ten minutes. She could hold up the pad with her left arm. It was fine because she was not holding it up very high. She could punch with her right hand.[55]
[55]T71
66There was running at the beginning of the class to warm up, not on the spot. They would go for a little run.[56] There would be between five to ten minutes of jogging at the beginning of the class, just waiting for everyone else to join. They would be told to jog to a tree and back, or to the play equipment. Her left knee coped alright with this, and she was very, very careful if the ground was uneven.[57]
[56]T69
[57]T70
67She could not do those exercises now because her knee feels so unsteady. She would not risk it. She did not want to be in the situation of having further surgery ever again.[58]
[58]T71
68At the St Kilda gym there was a stationary bike and a treadmill, and she did the exercises her physiotherapist had given her, like stretching with the bands for her arms. Her knees would be on a leg press machine. She fully extended her legs out and pushed her weight. She also did aqua aerobics. There was a gym class and then she did weights.[59] She conceded that she did not know whether she was able to do a spin class in that time because it was very strenuous.[60]
[59]T72
[60]T73
69Having had the 2013 bus accident, it was then devastating to suffer further injury to her knee and shoulder.
70She attended Sandringham Emergency Department, where she had scans and ice supplied to both injuries and was given some painkillers. She saw her general practitioner the following day and was certified for a few days off work.
71Due to ongoing pain in the left knee in particular, she was referred for an MRI scan and back to Mr McQueen, who told her she had caused further significant knee damage, and surgery was recommended. Funded by WorkCover, surgery went ahead on 1 September 2016, when the torn meniscus was repaired (“the first knee surgery”). She was then advised she needed a second surgery to repair the damaged ACL.
72She remained off work after the first knee surgery and had the repair on 8 November 2016 (“the second knee surgery”) and returned to work in late March the following year.
73She did not have further medical treatment for her knee, other than physiotherapy after her discharge from Mr McQueen.[61]
[61]T74
74The focus to then had really been on her knee, however, she had been suffering from significant left shoulder pain since the incident and therefore sought more active treatment. She had a shoulder ultrasound and eventually had a steroid injection which, unfortunately, did not seem to do any good at all.
75She saw Professor Ek, another orthopaedic surgeon, who advised her scans indicated there was significant damage and tearing in the left shoulder and she eventually came to shoulder surgery with Professor Ek on 24 August 2017.
76She did not have a great result from the shoulder surgery and in fact, things seemed to be even worse. It was more painful and the range of movement, more restricted.
77She was therefore treated with a hydrodilatation in July 2018 which seemed to help a little bit with the pain and degree of restriction. That was a difficult time for her as she was struggling with constant pain and was very worried her left shoulder was not going to get any better. Making matters even worse, she had been advised her contract with the employer would not be renewed.
78It took some time to find further work, having had the two injuries, but ultimately, she found an administration job with Metro Tunnel in March 2019. As she could not get part-time work, she worked 38 hours a week.
79She was not taking a lot of pain medication in June 2019. A lot of it was for her shoulder, but it would have helped her knee as well.[62]
[62]T58
80As at June 2020, she was still suffering ongoing shoulder pain and tried to guard her left arm but inevitably it ended up flaring up.
81Simply driving a car or using a computer caused increased left shoulder pain. She had a flare up a number of times a day, even more so when working.
82Reaching up and away from her body was usually problematic, so it was best if she kept her arm close to her body and did not reach too far.
83Her left knee also continued to be problematic and felt unstable and she did not like to rely on it. She was particularly cautious going downstairs. She could not bend it fully. Squatting and running were very painful.
84In 2013, it was very frustrating that her knee pain could flare up for no obvious reason. It was upsetting to have had such a good result from the 2013 surgery when compared to how bad the knee had been since the incident.
85She did not obtain much relief at night either, with her shoulder usually the most problematic. It would flare up if she rolled onto it, and cause her to wake up.
86The pain in each of her shoulder and her knee flared up every day, no matter how careful she was. She was forced to take a painkiller, Prodeine, each day to keep pain under some control, and also an anti-inflammatory on an ‘as-needs’ basis. They usually helped with the pain but did not make her pain free; however, if either injury was particularly bad, the tablets did not seem to help at all.
87She also took Sertraline daily for anxiety/depression that had been a problem since the incident. Sometimes she took Temazepam to help her sleep if pain and or anxiety were keeping her awake.
88While seeing Dr Kazerouni at Acland Street, the plaintiff also monitored her own condition, as she did not understand there was much more medicos could do. She had also attended Caulfield Pain Clinic, however, had been left with a chronic pain condition.
89She had eventually worked her way back from the 2013 left knee injury after surgery and extensive gym work, whereas this time, after the incident, she had not had a good result from surgery and even had to limit her gym work to mainly swimming.
90She had been left with a left shoulder and knee that were not showing signs of coming good and after being so bad for so long, she no longer held out much hope that things would significantly improve, and the future looked bleak, to say the least.
91In her second affidavit sworn a year later,[63] she confirmed very little had changed in terms of her injuries or limitations. She continued to suffer significant pain in both areas and was very significantly limited in what she could do day to day.
[63] Plaintiff’s affidavit sworn 2 June 2021
92Simply going for a walk was compromised by knee pain, and sitting in one position increased her pain, leaving her with no real escape from pain during the day.
93She still had a constant aching pain in the left knee. It felt loose and she was hesitant to rely on it. The pain also flared up with use and simply sitting still. That was problematic with her job in particular, as she did a lot of work seated in front of a computer.
94Things with her knee had been pretty much the same or perhaps a bit worse for some time. If anything, she sensed it was slowly getting worse over time, which worried her a lot.
95Another consequence had been significant weight gain due to relative inactivity. She had put on more than 20 kilograms, which upset her greatly. In that respect, her knee was probably the biggest impediment, as it was hard to do much of an aerobic nature because of its condition.
96Her dress size had increased one size post-2013, and luckily, she was able to go back to the gym and do something about it, but not this time “unfortunately”.[64] Since the incident, she has probably gained at least 20 kilograms, which was not very good for her self-esteem.[65]
[64]T60
[65]T61
97She was well aware her mental state had not improved one bit and it remained very difficult to stay positive when she was in so much pain and had to deal with so much restriction every day.
98She took Prodeine, Diclofenac and also Coversyl for blood pressure. She no longer had physiotherapy but did her own exercises. She wanted to go back to more active physiotherapy but could not afford it. Even with tablets, she was never pain free.
99She also took Zoloft for depression and anxiety. These feelings had been very hard to shake, and she was scared that was going to be that way for the rest of her life. She was having ongoing remedial massage when she could afford it, which gave her some temporary, much needed relief.
100She had been able to keep up work with Metro Tunnel. While she aggravated her pain every day at work, it was a light administration job, and she could therefore work around her pain. She was able to get up and stretch or move about pretty much as needed. That was necessary, as simply using a computer brought on increased shoulder pain. That was the core part of her job and therefore meant that flare ups of shoulder pain were a reality for her every workday.
101She then worried a lot about job security and had been very lucky to find a job where she had so much freedom to work around both lots of pain. She did not think she would be able to keep going if she did not have that freedom.
102She was able to do her Metro Tunnel job from home during COVID-19. That was the only job she could do, unfortunately – working at home and managing her pain.[66]
[66]T58
103The plaintiff swore a further affidavit sworn on 30 July 2021, after the hearing was adjourned in June, to address in more detail her pre-incident condition.
104Her left knee problem went back to 1999 while playing basketball and then some years after the 2013 bus accident. She also had some right knee injuries some years ago for which she had two arthroscopies.
105The 1999 basketball injury, which was ligamentous, came good without surgery but in 2013, she required a reconstruction, after which her knee certainly improved.
106Mr McQueen advised her the 2013 operation had been a success, which seemed to be the case to her, and she was happy to be able to go back to exercising, albeit with care.
107After the 2013 knee surgery, she moved to Canada with her family, where they lived for about ten months until returning to Melbourne in August 2014. While there, she did quite a lot of swimming to help strengthen her knee and shoulder, and continued swimming each week on her return to Australia.
108While the left knee improved significantly after the surgery, she was, from that time, very careful with both knees as she was aware she was probably going to be vulnerable to flare ups. Albeit that was the situation, she was also well able to go out walking for half an hour or so most days, which she enjoyed and helped to keep her fit and strengthen her knee.
109She had occasional flare ups of left knee pain and was taking painkillers from time to time to deal with it – Panadol Osteo or similar over-the-counter tablets once or twice each week and also taking Celebrex on that basis. She was also taking antidepressant medication and unrelated blood pressure tablets.
110She did not walk in an aggressive powerwalk way but rather kept up what she would call a safer pace. She felt an occasional click in the knee, like something was randomly catching or locking. That click or locking could often be associated with a sudden feeling of sharp pain, generally in the front and in the back of the knee.
111However, that pain would then settle down again quickly if she simply moved the knee a little and she would be able then to continue on with her walk. It was something that probably happened every couple of weeks or so, although she was walking significant distances a number of days a week. She was prepared to put up with it. She accepted her knee would probably never be the same as it was before the 2013 bus accident.
112She avoided climbing ladders and did not bend to kneel on the floor due to pain and fear of further damage to either knee. She also avoided heavy gym workouts that might place excessive stress or strain on both knees, and also avoided playing basketball with her sons.
113She also experienced some aching in the neck and shoulders after the 2013 bus accident, with the left shoulder more problematic. The aching was not usually a sharp pain, more an annoying ache, and she often experienced a sense of increasing tension and aching in the neck and shoulder after a day of work, which could be associated with headaches. They would generally worsen over the course of a working week and the more significant and aching and headaches sometimes compromised her sleep.
114Keeping her neck moving was the best to keep increased pain at bay. Her left shoulder also seemed occasionally to click or catch, and she randomly experienced a feeling of pins and needles in her left hand.
115She had injections of anaesthetic and steroids into both shoulders earlier in 2016 to deal with ongoing pain and restriction. She believed the diagnoses were tendinopathy and or bursitis, and the injections helped.
116Against this background, she felt things were on the improve from a physical perspective, and was particularly happy with her knee progress and consequent ability to get out and be more active. She had increasing confidence she had made a significant level of recovery from the 2013 bus accident
117She felt she was able to place more pressure or reliance on the knee. She decided to lose some weight and improve her fitness with increased physical activity, and was also having some massage which seemed to loosen her up and make physical activity easier. Frustratingly, the incident occurred while she was in an exercise class.
118Things had been very much different since then and she no longer felt any confidence things were improving. The incident injuries set her back massively in terms of both her knee and shoulder, and she felt now that there was not much hope for improvement with so many years having passed.
119Since the incident, she had been much less able to be active, and walking was now very much more compromised. Simply sitting at her desk carrying out very sedentary work was now painful with respect to both injuries, very much in contrast to how far she had progressed before the incident.
120In particular, she had high hopes for the knee and after the operations, expected or hoped that they would be a success as the 2013 had been, and she would be able to get back to more strenuous activity and exercise. That certainly had not been the case and she was left with all of the significant limitations previously deposed to.
121She had had similar hopes that the shoulder surgery and hydrodilatation shoulder would address most of the issues but unfortunately those procedures similarly were not particularly successful and her significant pain and restriction with her left arm and shoulder continued.
Current situation
122Each injury has become more and more difficult to deal with as time has progressed, with both conditions having slightly deteriorated.[67]
[67] Plaintiff’s affidavit sworn 5 May 2022
123The shoulder injury is flaring up much more often and is the most painful. Even just moving about or using the arm, there will then be a flare up.
124She has constant pain in and over the top of the left shoulder which spreads up into the side of the neck and down into the shoulder blade. The severity of the pain varies, although it is never mild. It is almost always strong pain which has really worn her down. That pain will flare up significantly with the use of a computer keyboard and also holding a steering wheel and driving or lifting anything with the left arm, even though not heavy. Reaching up to something like a cupboard also causes a flare up.
125With a flare up, she rates her shoulder pain at eight or nine out of ten, the most severe and stabbing-type pain lasting for a few minutes, before settling down to strong pain. That can last for hours or even a day. It is extremely difficult to live this way and she often feels utterly overwhelmed by the pain. With a genuine sense of fear, any movement will trigger very sharp pain.
126Those feelings make it even harder to deal with pain and restriction, as it is not the case, she can even obtain relief at night because of problems sleeping and rolling onto the shoulder.
127Her left knee also continues to be a major problem.[68] It still feels loose or unstable and is always painful. The pain seems to focus over the front of the knee and flares up with pretty much any weight placed on it. She cannot kneel or go jogging or running or walk too far.
[68] T11
128She also has to be always mindful of it and keeping excessive strain off the knee. She still experiences the catching clicking sensation sometimes when walking.
129She takes Tramadol, one or two a day, and Prodeine, four a day, for knee and shoulder pain. If the pain flares up severely, mainly in the left shoulder, she also takes Diclofenac most days. She occasionally takes Panadol Osteo if the other tablets give her stomach problems. However, despite the tablets, neither injury is anywhere near being pain free.
130The medication is not specifically taken for both injuries, but it works for both. She has to take it for her shoulder and is sure that it is helping with her knee. She would not have to take it every day for her knee alone. Her knee is not always sore when she is sitting. Perhaps after a walk or something, she would have to take something like Voltaren. She has been taking medication for so long, she could not really tell. If she did not have a “crook” shoulder, she would still be taking something for her knee.[69]
[69]T62
131She sees a general practitioner regularly for prescriptions. Massage and heat packs on the shoulder usually help, although the pain inevitably returns. She pays for massage about every six weeks and would like more but cannot afford it. She also does her own exercises.
132Pain management had been suggested, mainly for the shoulder, by her general practitioner.[70]
[70]T11
133She also continues to struggle with a degree of anxiety and depression, and continues to see a psychologist and take Zoloft.
134She lost her job with Metro Tunnel just before Christmas, which was a massive blow, but had been fortunate to find call centre work. Even though it is light work, sitting and using a computer, her left shoulder pain inevitably increases as the day progresses. She has increasing pain at work and has to rest when she is away from work just to keep going.
135In summary, she wished to make it clear the incident was the major turning point for her. While she had suffered other injuries in the past, by the said date, she was in a good place. She was becoming quite fit with swimming and exercise. It was therefore devastating to lose what she had achieved. Her life since the incident had been one of inactivity and a daily struggle with shoulder pain and restriction and with knee pain and restriction.
136The last six years had been very hard indeed and in no way compared to how she was before the incident.
137She denied that she was massaging her claim towards what she thought was the better outcome, or that she massages the details of pain and incapacity to suit a particular claim or course that she believes would be advantageous.[71]
[71]T63
Lay evidence
138The plaintiff’s husband, Bruce, swore an affidavit on 15 June 2021.
139Before the incident, the plaintiff was a very different person, able to keep up with housework and was physically active, attending the gym regularly. Things changed very much after the incident.
140He sees her doing stretches and taking a significant amount of medication. Intimate relations have dropped away considerably. Her level of general activity and physical fitness have dropped away. She has lost a lot of mobility.
141From his perspective of watching how the plaintiff copes on a daily basis, things have dramatically changed for her since the incident. Things have also been bad for a long time now too, and he thinks they have both lost confidence that things will somehow now spontaneously get better. He knows that this has been quite devasting for her.
Plaintiff’s treaters
Acland Street Medical Centre
142On 10 August 2015, the plaintiff presented to Dr Sedeh, general practitioner, with a two-year history of bilateral shoulder pain. She underwent shoulder ultrasounds which highlighted an issue.[72]
[72]The report did not specify which shoulders were scanned
143Dr Akhter reported that on 28 January 2016, the plaintiff had a steroid injection in her right shoulder which was effective. A left shoulder ultrasound was done on 29 March 2016 due to ongoing pain. It showed changes, and to treat these changes, the plaintiff underwent a steroid injection in the left shoulder on 23 April 2016. It was ineffective.
144Dr Akhter then advised the TAC “[She] tells me today that her pain is ongoing and is keen to pursue further investigations and treatment through TAC. I would be grateful if you would consider this.”
145On 23 January 2017, Dr Finnigan noted that the knee was much improved, but the plaintiff was suffering significant shoulder pain and was not ready to return to work.
146As of June 2019, Dr Finnigan thought that the plaintiff’s injuries had stabilised. Her left knee ACL rupture had resolved with surgery. She could mobilise well and walk with no issue. However, she could not run as it felt unstable and she needed to be careful with her balance climbing up and down stairs and on and off trams. She sometimes did not have any pain.
147The plaintiff was experiencing ongoing pain in her left shoulder, not having gained any response from surgery, physiotherapy or osteopathy. She was attending Caulfield Hospital Pain Clinic and was aware it was going to be a chronic issue. She needed long-term gym access. She was taking analgesia and trying to cut down on medication and manage her pain with heat packs. The pain did not disturb her sleep. She had depression and anxiety as a result of the incident, and was taking antidepressant therapy and attending psychology.
148She felt that the plaintiff’s knee was not 100 per cent back to baseline but she had no pain and good function. Hence, she should have no long-term issues with it. She believed that the plaintiff will experience chronic pain in her left shoulder. Her anxiety and depression had improved and was stable on her current treatment protocol. She was currently fit for work.
149Dr Kazerouni reported in March 2021. She then diagnosed a range of left shoulder and left knee conditions. Surgery was only partially helpful, and the plaintiff was left with chronic pain which she learned to live with. Limitations with standing and walking had resulted in her being able to perform only sedentary tasks and had exacerbated weight gain. She had tried to cut down dosage of painkillers because of concern with her overall health
150Dr Kazerouni noted the plaintiff had pre-existing arthralgia in the neck and shoulder in 2008.
151Dr Kazerouni thought the plaintiff’s prognosis was unclear and uncertain. Her pain and functional limitations were ongoing and had not stabilised. The shoulder injury was most likely permanent in nature. As a result of all her injuries, the plaintiff’s ability to perform her usual occupation and carrying out social and domestic duties was affected.
152Dr Kazerouni most recently reported in April this year.
153The incident injury was noted and further investigation of neck pain by Dr Chan on 28 July 2021 which confirmed left C5-6, C6-7.
154The diagnosis was chronic pain post work-related injury in 2016. Shoulder and neck injuries seemed permanent in nature. The plaintiff was dependant on multiple painkillers. The injury certainly affected the plaintiff’s ability to perform normal occupation or carry out recreational and domestic activities.
Barry Nguyen, physiotherapist
155Barry Nguyen reported in April 2018, noting that the plaintiff’s pain was relatively stable with a dull ache rated at three to four out of ten, depending on physical activity levels. She was then swimming two to three times a week for maintenance. She had restored pain-free full range of motion in her left shoulder, and passive range was greater than ninety-five degrees.
Dr Petersen, chiropractor
156Dr Petersen requested approval for chiropractic treatment from the insurer in August 2018 for the plaintiff’s left shoulder.
Mr Andrew McQueen, orthopaedic surgeon
157The plaintiff was initially referred to Mr McQueen for her left knee in August 1999. She had injured her knee playing basketball three weeks earlier, and he decided to let her settle with conservative treatment.
158The plaintiff was referred again to Mr McQueen in June 2013 following the 2013 bus accident. A decision was made to proceed with a LARS ACL reconstruction, combined with a meniscectomy.
159On 18 July 2013, Mr McQueen performed a lateral meniscectomy chondroplasty and LARS ACL reconstruction, funded by the TAC.
160He advised the plaintiff’s solicitors in September 2015 that following the surgery, the plaintiff convalesced satisfactorily. When last seen on 29 July 2013, she had continued to make an excellent recovery and was proceeding with ongoing physiotherapy.
161On review in August 2016, Mr McQueen thought the plaintiff had a tear of the medial meniscus and also a subchondral fracture following the incident. He carried out an arthroscopic medium lateral meniscectomy on 1 September 2016.
162Following review in late September, he advised that a decision had been made to proceed with a redo ACL reconstruction using a LARS ligament on 2 November 2016. This procedure took place took place on 8 November 2016.
163On 21 November 2016, Mr McQueen reviewed the plaintiff and advised that she was progressing very well post-surgery, and he planned to review her in a month.
164Following a review on 19 December 2016, he advised that the plaintiff had progressed very well following a recent surgery, and he had not arranged to see her again unless there were concerns.
Professor Eugene Ek, orthopaedic surgeon
165Professor Ek first saw the plaintiff in March 2017 for an evaluation of her left shoulder. Her main complaint then was pain over the posterior aspect of the left shoulder.
166An MRI scan on 19 April 2017 showed mild degenerative change in the glenohumeral and acromioclavicular joints, supraspinatus tendinopathy with secondary adhesive capsulitis and a glenoid labral tear superiorly (slap tear).
167Following review on 9 May 2017, an ultrasound-guided injection into the suprascapular notch was ordered.
168Two months after that injection, the plaintiff reported that the pain she had had in the posterior aspect of her shoulder subsided and she was relatively pain-free. However, when the local anaesthetic wore off, the pain soon recurred. Professor Ek recommended surgery.
169On 24 August 2017, he operated at Glenferrie Private Hospital, performing an arthroscopic subacromial decompression and bursectomy of the left shoulder, mini-open subpectoral biceps tenodesis and left shoulder arthroscopic suprascapular nerve release.
170When seen on 24 October 2017, post-left shoulder surgery, the plaintiff was progressing well and her range of motion was slowly improving, although she was stiff.
171When last seen in February 2018, the plaintiff still had some ongoing pain, particularly over the posterior aspect of her shoulder, which radiated up to her neck. Professor Ek told her that he did not think there was anything further structurally that he could address, and that physiotherapy would be important in massaging and improving her shoulder and scapular mechanics. He also suggested pain management if her pain was persistent and did not improve.
Mr Ash Chehata, upper limb surgeon
172Mr Chehata saw the plaintiff in June 2019.
173On clinical examination, she was bitterly disappointed with loss of range of movement and clear signs of adhesive capsulitis. With this in mind, a tentative treatment plan evolved around local anaesthetic and hydrodilatation.
174Mr Chehata reviewed the plaintiff on 21 June and 20 July 2018, after the hydrodilatation, following which the plaintiff seemed to improve somewhat. She had severe restriction in range of movement, ongoing pain, as well as an inability to perform overhead activity for any time, which had impacted on all of her activities of daily living.
Medico-legal
Mr Russell Miller, orthopaedic surgeon.
175Mr Miller examined the plaintiff in February 2021.
176She told him that she had sustained a prior left knee injury in a bus accident in 2013, following which she had surgery with a good result. She also had a past history of neck and shoulder pain in 2008, which had also settled.
177On examination, she told Mr Miller her left shoulder was a major problem with ache, discomfort and pain worse with repetitive and overhead activity. She had ache, discomfort and intermittent pain in the knee which felt weak and insecure, although there was no giving way. She reported that there was moderate improvement following surgery, but there was a slow pattern towards deterioration.
178She advised that she had gained about 15 kilograms in weight since the injury due to her inability to exercise. She had problems with anxiety and depression and probable development of a Chronic Pain Syndrome, which will complicate the assessment and management of her condition.
179He thought it was likely she would develop progressive arthritic disease in the left knee which was likely to lead to a requirement for joint replacement, but that was likely to be in ten to twenty years. Her ongoing symptoms in the shoulder were due to persisting rotator cuff dysfunction capsulitis, residual labral pathology and manifestation of her Chronic Pain Syndrome. The prognosis was only poor.
180The plaintiff would have limited lifting capacity to five kilograms. She would have difficulty with work involving prolonged standing or walking, twisting, turning, kneeling, bending, squatting, and climbing and uneven ground.
181The plaintiff told him that she had previously enjoyed walking and regular gym workouts but had not been able to resume that activity. She had had a reduction in her capacity for pre-injury leisure and recreational activities due to ongoing problems with both her left knee and shoulder.
182Mr Miller provided a supplementary report, having been asked the relevant contributions of the 2013 and 2016 accidents leading to the current clinical status of the plaintiff’s left knee.
183He thought the 2016 incident was the dominant factor in the requirement for a knee replacement. It was possible that the plaintiff may have ultimately required that surgery notwithstanding the incident. If, however, a knee replacement was indeed to occur notwithstanding the incident, then it had been accelerated probably by many years the requirement for that replacement.
Dr Richard Sullivan, pain specialist
184Dr Sullivan saw the plaintiff in March 2019. She then continued to have symptoms, with the most substantial functional impediment relating to her left shoulder pain.
185He knew about the 2013 bus accident in which she injured her left shoulder, noting a steroid injection to that region in April 2016. She had no substantial significant persisting impediment of her left shoulder prior to the incident.
186He thought that the plaintiff sustained a significant aggravating injury in the incident. Despite important structural surgery to both anatomical locations, she continued to experience significant pain of a debilitating and functioning limiting nature, especially relating to her left shoulder, but also the knee.
187The nature of her chronic pain was organic, as she had post-surgical pain characterised by the organic process of central sensitisation which was a maladaptive disease affecting central pain processing.
188While she had pre-existing conditions in these areas, she did not have chronic pain or chronic functional impairment consequences to these intrinsic changes. She then sustained aggravating injuries to both areas in the incident and, since that time, had had persisting pain of a debilitating nature.
Mr John O’Brien, orthopaedic surgeon
189Mr O’Brien examined the plaintiff in March 2022.
190The plaintiff told him that following knee surgery in 2013, she obtained quite a good result, allowing her to walk quite freely and attend the gym regularly.
191On examination, she complained of continuing knee pain after the more recent knee surgery, particularly related to weightbearing function and continuing awareness of knee instability, although there had been no apparent specific give way.
192Examination did not demonstrate any sign of active inflammation or indeed, ligament instability. There was some mild restriction of flexion and local tenderness, and in light of the multiple surgical procedures, this would suggest the presence of some degree of post-traumatic arthritis.
193The plaintiff also had constant shoulder pain. There remained some definite restriction of left shoulder movement and she presented with chronic post-operative left shoulder pain.
194Noting injury to both the knee and the shoulder in the 2013 bus accident, he concluded the incident is now responsible for the current clinical condition.
195He remained guarded in relation to the plaintiff’s prognosis, noting that she had chronic left shoulder and knee pain.
196One could not totally exclude the possible requirement of definitive knee surgery with total replacement if there was a significant progression of post-traumatic arthritis. Given the history following the 2013 bus accident, it appeared unlikely that this injury would have resulted in total knee replacement. The more recent incident injury, however, required two surgical procedures and is significant, and certainly left the plaintiff with mild symptoms of post-traumatic knee arthritis.
197The plaintiff also reported ongoing disability associated with her left shoulder with related restrictions.
198Despite the ongoing disability, the plaintiff is not totally incapacitated and is capable of undertaking modified clerical-type duties. She is definitely now limited in her general, social, domestic and recreational pursuits.
The Defendant’s medical evidence
Medico-legal evidence
Pre incident
Mr Paul Kierce, orthopaedic surgeon
199Mr Kierce saw the plaintiff in May 2015 in relation to injuries suffered in the 2013 bus accident.
200The plaintiff was running and working out at the gym until the 2013 bus accident occurred, and she took part in a basketball team before her children were born.
201She reported she had never had suicidal thoughts. She had been tearful at work on one occasion only. When in Canada, however, she was tearful at home perhaps twice monthly due to intense cold which aggravated her pain and due to the stress of the experience as a whole. Her husband had considered settling there, but both she and the boys could not tolerate the weather. Her only medication in Canada was for hormone replacement therapy.
202She reported her marital relationship was excellent, but there had been some decrease in intimate relations since the accident. Her appetite had not altered, but there been weight gain of one dress size, which she attributed to reduced exercise. Twice weekly her sleep was broken and usually, but not always, she returned to sleep.
203He thought that she suffered a soft tissue injury to her neck and a significant injury to the left knee joint tearing the ACL, and she also had evidence of an intrasubstance tear of the medial meniscus of the left knee. She had a successful outcome to the reconstruction of the ACL of the left knee.
204She did not injure her left shoulder in the 2013 bus accident but had pre-existing tearing of the rotator cuff with bicipital tenosynovitis.
205The plaintiff ran a risk of developing osteoarthritis of her left knee joint as the osteochondral injury was to the lateral femoral condyle and the medial tibial condyle could predispose her towards osteoarthritis of the left knee, and that would be even more likely if she had any surgery on the medial meniscus.
Dr Andrew Firestone psychiatrist
206Dr Firestone saw the plaintiff in April 2015.
207He then diagnosed a mild Adjustment Disorder with increased anxiety and pre-occupation with the 2013 bus accident.
Post incident
Dr Gary Davison, occupational physician
208Dr Davison saw the plaintiff in July 2018.
209In terms of history, he noted the 2013 bus accident and post-operative physiotherapy. By the time the plaintiff returned from Canada, she had made a good recovery.
210Dr Davison noted the incident circumstances and the plaintiff’s subsequent treatment. The plaintiff made an uneventful post-operative recovery. Her condition had improved but she had experienced some residual symptoms and a reduced capacity as a consequence.
211She was able to return to work but continued to be troubled by left shoulder pain, which was not investigated until 2017, and an ultrasound-guided injection of cortisone followed, from which there was no symptomatic benefit.
212The plaintiff was then referred to orthopaedic surgeon, Professor Ek, who arranged a further CT-guided injection of cortisone without obvious benefit. He proceeded to surgery on 24 August 2017. The procedure included a left shoulder arthroscopic subacromial decompression and bursectomy, left shoulder mini-open biceps tenodesis and left shoulder arthroscopic subscapular nerve release.
213The plaintiff made an uneventful recovery but had ongoing pain and restriction of movement. A second opinion was sought from Mr Chehata, who advised that the plaintiff should undergo a hydrodilatation, which happened six weeks earlier. Her condition had improved as a result, and Mr Chehata had also referred her to a chiropractor. The plaintiff had not returned to work since July 2017.
214On examination, the plaintiff reported a constant ache in the left shoulder region, extending into the scapula, worse at the end of the day. Shoulder movements were restricted and there was pain also going into the back of the neck on the left side.
215She reported the presence of intermittent very random pain in the infrapatellar region which occurred perhaps twice a week. She did not report any swelling or giving way. However, she indicated that she was no longer able to kneel or squat fully, and had difficulty using stairs and could not run.
216She was then taking Panadeine Forte, two tablets daily, and Panadol Osteo, four tablets daily, for pain relief.
217The plaintiff suffered internal derangement of the left knee, resulting in a retear of a LARS ACL repair and associated with meniscal tears to the medial and lateral menisci. She had had a good recovery post surgery. She also reported the presence of persistent pain and restricted movement of the left shoulder following arthroscopic surgery, which was complicated by the development of post-operative adhesive capsulitis.
218He thought that she could resume her pre-injury duties as a part-time administration worker with no specific restrictions in that role. He agreed with the jobs suggested in the CAC vocational assessment from in June 2018.
Dr David Elder, rehabilitation specialist
219Dr Elder examined the plaintiff in September 2018.
220The plaintiff then had continuing pain and dysfunction in her left knee and shoulder. He carried out an AMA assessment, making an allowance for the knee and scarring.
Medical Panel
221The Medical Panel, in January 2019, found that the plaintiff had a three per cent whole person impairment resulting from the accepted left knee, inclusive of ACL tear, left shoulder biceps tendinitis with compression of suprascapular nerve injury.
222The plaintiff told the Panel that after the 2013 knee surgery, she recovered “very well”. She was back at the gym three times a week and back walking an hour most days. She could not recall whether or not she had seen any specialist for her shoulder or whether she had any physiotherapy for it. Her left shoulder pain settled, and she could not recall whether she just needed pain medication for her knee or her shoulder as well. She initially said her shoulder recovered fully after the 2013 accident and she did not need pain medication but then confirmed, when seen by Mr Kierce in 2015, shoulder movement was limited. The Panel thought the plaintiff’s answers about her left shoulder condition pre incident were evasive and contradictory.
223She told the Panel how she used to go to the gym regularly three times a week prior to the incident and her activities included aqua aerobics, spin class on an exercise bike, yoga, weights class, reformer machine work and Pilates.
224On examination, the plaintiff described intermittent left knee pain and constant left shoulder pain radiating to the left side of her neck.
225The Panel concluded that the plaintiff was suffering from persisting left shoulder pain and stiffness following an aggravation of pre-existing rotator cuff tendinopathy, surgically treated, and persisting left knee pain and stiffness following a tear of a pre-existing LARS ACL reconstruction, surgically treated, attributable to the accepted physical injuries.
Mr Greg Etherington, spinal surgeon
226The plaintiff was reviewed by Mr Etherington in December 2021 at the request of Allianz Australia. The review was precipitated by request for some treatment of her cervical spine.
227On assessment, the plaintiff said her left knee is relatively good but, unfortunately, the pain around the left shoulder girdle is not so good. She described pain on the left side of the neck, radiating out to the left trapezius over the top of the left shoulder.
228She reported that flexion and rotating her neck to the left both gave her some tightness in the posterior cervical spine. As well as neck symptoms, she reported she also had some paraesthesia and intermittent stiffness of the left hand, particularly in the ring and middle fingers and occasionally the thumb.
229Treatment then was some Panadeine and occasional Tramadol. She had had lots of physiotherapy in the past, but he thought it was mainly directed to her shoulder and knee.
230The plaintiff had degenerative changes at the C5-6 and C6-7 segments in her cervical spine seen on initial x-ray in 2018, and the later CT scan and MRI scan. It was fair to say that imaging findings such as hers were very common in the general population.
231He had a history that there were no shoulder problems after the 2013 bus accident. It should be noted that there was a considerable overlap between the shoulder and cervical symptoms. The plaintiff had never had any history of radicular pain down either arm, and it was not clear where her left neck pain was coming from.
232There were no shoulder problems at all after the 2013 bus accident. In his view, the source of the persistent cervical and left shoulder symptoms was unclear. The plaintiff certainly had some lower cervical pathology and there were also problems related to the left shoulder. It may well be that both were contributing to her current symptoms.
Overview
233There is no dispute the plaintiff suffered an injury to her left knee and left shoulder in the incident.
234Counsel for the plaintiff indicated that the plaintiff’s evidence would be that her left shoulder was by far the more dominant problem these days, although the left knee was still a considerable problem for her.[73]
[73]T2
235As she had previously suffered injury to both areas in the 2013 bus accident, the principles set out in Petkovski v Galletti[74] in relation to aggravation cases apply.
[74] (Supra)
236Therefore, I must be satisfied that the consequences of any aggravation of either condition are of themselves serious, having examined the plaintiff’s condition, both before and after the incident, in relation to her left shoulder and left knee.
Credit
237As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[75]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[75](2010) 31 VR 1 at paragraph [12]
238There was a significant attack on the plaintiff’s credit by counsel for the defendant, largely in terms of what was said to be an understatement of the extent of her left shoulder problems prior to the incident injury.
239In those circumstances, it was submitted that absent reliable medical opinion as to any dramatic improvement pre incident, the Court was only left with the plaintiff’s evidence and should be somewhat sceptical of her credit and reliability in this regard.[76]
[76] T922
240In particular, it was submitted that despite a significant shoulder injury and the need for injections and treatment in the weeks leading up to the incident, the plaintiff failed to mention any pre-incident left shoulder problems in her affidavits, despite relying on a shoulder impairment in the subject application.[77]
[77] Her husband also did not mention pre incident shoulder issues in his affidavit
241It was submitted that her failure to depose to matters relating to her pre-incident shoulder problem was intentional, as was her failure to provide accurate histories to the reporting doctors – knowing of importance of her pre-incident condition in a compensation case.[78]
[78] T93
242Further, the Medical Panel thought her answers in relation to her left shoulder were evasive and contradictory. While she told Mr Miller she had a past history of neck and shoulder pain in 2008, she told him it had settled at the time of the incident. The plaintiff did not mention previous shoulder pain when examined by Dr Davison and Mr John O’Brien.
243It was also submitted that the plaintiff’s evidence of the improvement in her knee and shoulder condition post 2015 to the said date was unsatisfactory, having failed to properly recall the gym attendances she claimed to have pursued in the six months pre incident. The casual and beginner nature of the exercises classes she was undertaking was insufficient to corroborate any significant improvement in her condition.[79]
[79]T93
244Counsel for the plaintiff denied that the plaintiff tailored her account of her injuries to suit the application.
245It was submitted that the plaintiff gave her viva voce evidence in an entirely forthright manner, and readily conceded without hesitation, points that were being made against her interests regarding previous pain and issues she faced with the knee and shoulder. She was in no way embellishing or being selective with her answers.[80]
[80]T96
246It was submitted that the answers that did not help her were given directly without any embellishment, and that she should be believed in respect of matters that assisted her case.
247The pre-existing knee condition was well and truly admitted in all medical reports. While the shoulder was not canvassed in some, it was submitted that that was because it was not of great concern to the plaintiff compared to the significant reconstructive knee surgery and then the recovery period relating to the knee after the 2013 bus accident.[81]
[81]T99
248There were many instances where a full history was given or taken.[82] It was unfair and selective to rely on reports that lacked a complete or correct history to say that the plaintiff had fabricated a history.[83]
[82]Dr Elder, Medical Panel, Mr Miller and Dr Sullivan
[83]T96
249Further, the plaintiff believed the doctors would be equipped with scans and matters of history (bearing in mind she was once a nurse and worked in medical administration). In those circumstances, one might ask why she had set about on some plan to deceive when she knew the doctors were very properly so equipped, as was Dr Etherington and Mr O’Brien.[84]
[84]T98
250It was giving the plaintiff too much credit to suggest she was able to hide or craft a particular history.[85]
[85] T36
251I did have some concerns about the plaintiff’s credit in terms of the left shoulder injury, and found it difficult to understand why she did not mention treatment for that condition only a matter of months before the relevant incident, when the left shoulder was the subject of the present application. Given the ongoing treatment for her left shoulder so close to incident date, the plaintiff on all the evidence somewhat understated the significance of her pre incident shoulder condition.
252However, this understatement, to some extent, may be explained by her focus on her knee which was operated on pre incident. Also her failure to mention her pre-incident shoulder condition to examiners can be explained by her understanding that doctors would have had her full history – as was the case with Mr O’Brien, to whom she did not specifically mention her shoulder, but he was aware of it, having been provided with other documentation.
253Importantly, the plaintiff was very candid and did not try to argue away the significant knee and left shoulder symptoms she was suffering when she was seen by Dr Firestone and Mr Kierce in 2015.
254The issue then becomes whether the plaintiff’s evidence of a significant improvement in both conditions leading up to the incident injury should be accepted and whether any consequences of aggravation are “serious”.
Pre-incident shoulder
255Taking into account all the evidence, I am satisfied that the plaintiff experienced chronic pain in her left shoulder for many years prior to the said date – dating back to 2008 – and that situation continued as at the said date.[86]
[86]Acland St Medical Centre 15 January 2008 “neck, shoulders chronic”; Dr Kazerouni’s March 2021 report
256She underwent a left shoulder x-ray in September 2012, an ultrasound in November 2012, “? rotator cuff: possible left sided supraspinatus tendinopathy”. Mr Kierce thought that ultrasound showed a definite tear of the supraspinatus tendon and tendinopathy of the biceps tendon.
257Following the 2013 bus accident, in addition to a knee injury, the plaintiff also complained of sore shoulders to the Acland Street Medical Centre.
258She underwent further investigations of her shoulders after the 2013 bus accident, with shoulder ultrasounds on 20 August 2015 and 24 August 2015 – in each, a comment of mild supraspinatus tendinopathy without a tear.
259In 2015, when seen for medico-legal purposes, she told Dr Firestone in April of low-grade dull pain constant in the left shoulder and neck. In June, she told Mr Kierce about a range of shoulder problems.[87]
[87] See paragraph 202 of my Judgment
260On 2 August 2015, the plaintiff presented to Dr Sedeh with a two-year history of bilateral shoulder pain.[88]
[88]Dr Akhter’s report dated 17 May 2016
261Significantly, in March 2016 – just four months before the incident, the plaintiff had an ultrasound of her left shoulder. The clinical note read, “left shoulder pain, recently worse? Cause? Impingement. Comment – mild tendinopathy of the supraspinatus tendon. Mild subacromial bursitis.”
262It was then suggested the plaintiff may benefit from an ultrasound-guided subacromial bursal injection, which was undertaken on her left shoulder on 19 April 2016, with the clinical note, left subacromial bursitis.
263In his May 2016 report, the plaintiff’s general practitioner, Dr Akhter, noted the March ultrasound, done due to ongoing pain showed changes, and to treat these changes, she underwent a steroid injection of her left shoulder on 23 April. It was ineffective. “She tells me today that her pain is ongoing, and she is ‘keen to pursue further investigations and treatments through the TAC’.”
264While the plaintiff may have increased her level of physical activity in the months leading up to the incident and there had may have been an improvement in her shoulder since the 2015 medico-legal examinations,[89] this ongoing course of shoulder treatment so close to the incident and seemingly ongoing, suggests her shoulder was still a significant problem as at the said date.
[89] Counsel for the plaintiff’s submission
265In these circumstances, I do not accept the plaintiff’s evidence of a significant improvement of her left shoulder pre incident.
266While there was the need for significant shoulder surgery in 2017, I am not satisfied that this was as a result of any the incident injury in the absence of any medical explanation in relation thereto, particularly in circumstances where it seems the left shoulder condition was deteriorating before the incident.
267Taking into account all the evidence, although the plaintiff’s case was that her left shoulder is her main problem, I do not accept that there was a severe aggravation of the left shoulder condition in the incident.
268Accordingly, the application in relation to the left shoulder is dismissed.
Left knee
269Clearly, the plaintiff had left knee problems before the incident, dating back to at least 1999.
270At that early stage, she had a knee x-ray, moderate joint effusion and was seen by orthopaedic surgeon, Mr McQueen, who suggested conservative treatment.
271Further knee investigations in 2011 showed osteoarthritic changes.
272The plaintiff suffered a significant left knee injury in the 2013 bus accident. She subsequently came to surgery with Mr McQueen, who performed a lateral meniscectomy chondroplasty and LARS ACL reconstruction in July 2013.
273Significant knee complaints continued in 2015, as reported to Mr Kierce and Dr Firestone, and accepted by the plaintiff – including pain, stiffness, clicking, locking, instability, difficulty with exercise, instability, weight gain and interference with various activities.
274However, I accept that there was a significant improvement in the plaintiff’s knee condition from this time until the incident – evidenced by her ability to participate in the exercise class in which she was injured.
275By the said date, I accept that she had returned to a reasonable level of exercise, a situation somewhat different to the level recorded by Mr Kierce – not trying to run – and Dr Firestone – not participating in gym workouts.
276In this regard, as counsel for the plaintiff submitted, the assertion that nothing had changed since the examinations by Dr Firestone and Mr Kierce lacked any real basis. It was a snapshot of a couple of months in early to mid-2015, and the plaintiff had moved on very significantly in terms of her extensive physical activities in the meantime.
277The plaintiff had completed the employer’s eight-week exercise program and was in the second round of that program when injured at work in the incident. There was no challenge on the defendant’s behalf of the plaintiff’s description of a wide range of physical activities involved in that program – including jogging for five to ten minutes.
278The plaintiff had also been attending the gym at St Kilda for some months before the incident, doing Pilates, performing aqua aerobics with weights, exercising on stationary bikes and performing leg presses on a machine loaded with weights.
279Both activities showed her ability to re-engage in exercise – despite some ongoing knee pain and restrictions – with a view to regaining her fitness – something she had always valued highly. I accept that in the months leading up to the incident, she had increasing confidence she was making a significant level of recovery from the 2013 bus accident.
280In December 2018, the Medical Panel took a detailed history of the fitness regime and extensive exercises that were being performed pre incident.
281As she deposed, she felt she was able to place more pressure or reliance on the knee. She decided to lose some weight and improve her fitness with increased physical activity, and was also having some massage which seemed to loosen her up and make physical activity easier. Frustratingly, the incident then occurred while she was in an exercise class.
282Significantly, having been discharged by Mr McQueen in 2013, the plaintiff did not require any further attendance with him or on a general practitioner in relation to her knee pain.[90] She simply underwent physiotherapy in conjunction with an exercise program, and I accept that she had improved significantly to be able to undertake the exercise she was doing when she suffered injury.
[90]T51
283Following the incident, the plaintiff has undergone significant knee surgery an arthroscopic medium lateral meniscectomy on September 2016 and a redo ACL reconstruction using a LARS ligament in November 2016.[91]
[91] Mr McQueen’s report dated 19 August 2019
284Despite this surgery and subsequent physiotherapy, her left knee continues to be a major problem.[92] She still has a constant aching pain in the left knee with the pain focussed on the front of the knee. It still feels loose or unstable and it flares up with pretty much any weight placed on it.[93]
[92] T11
[93] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [11]
285Despite her ongoing pain and restriction, I accept that the plaintiff has not returned to Mr McQueen because she did not believe that further treatment from him could improve her symptoms, having now undergone two ACL reconstructions.
286The plaintiff has always been a woman who has a keen interest in sport and her fitness, and that avenue has now been closed off to her as she is no longer able to do the level of activities she did before the incident. Now, simply going for a walk increases her knee pain.
287Her incident injury has set her back massively and she now feels that there is not much hope for improvement, with so many years having passed.
288Since the incident, she had been much less able to be active, and her walking was now very much more compromised. Simply sitting at her desk carrying out very sedentary work is now painful for her knee.
289Her self-esteem has been affected by further weight gain since the incident due to decreased mobility.
290While she requires medication largely for her shoulder, I accept that it assists in relation to her knee pain and that, on occasion, she needs painkilling medication for her knee alone.
291There is a suggestion of the need for further knee surgery. Mr Miller thought the incident was the dominant factor in the requirement for a knee replacement but that was likely to be in ten to twenty years. Mr O’Brien could not totally exclude the possible requirement of definitive knee surgery, with total replacement if there was a significant progression of post-traumatic arthritis. The incident required two surgical procedures and is significant, and certainly left the plaintiff with mild symptoms of post-traumatic knee arthritis.
292As there has been no improvement in her knee condition since the 2016 surgery, I accept that the knee impairment permanent.
293Taking into account all of the evidence, I am satisfied that the consequences of the aggravation of the knee injury in the incident are serious and permanent.
294Accordingly, I grant leave to bring proceedings for damages for pain and suffering in relation to the plaintiff’s left knee.
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