Marshall v Victorian WorkCover Authority [2025] VCC 1801

1. The plaintiff is presently aged fifty-eight, having been born in New Zealand in 1967. She is right handed. She migrated to Australia in 1992. She is married with an adult son, Gabriel.
2. The plaintiff worked as a patient services assistant ("PSA") for the employer. She was based at Sunshine Hospital. Her work duties involved various aspects of patient transport, some cleaning tasks, replacing linen, rubbish removal and bed transfers ("the work duties").[4]
3. On or about the said date, she was working in the birthing unit and was required to move a patient into a bed with the assistance of a colleague. While doing so, she slipped and fell on the floor which had recently been mopped ("the incident").
4. She experienced left shoulder pain and restriction following the incident and went off work, before making a gradual return with restrictions.
5. The plaintiff came under the care of local doctors. In May 2021, she had radiographs of her left shoulder and elbow. Later that month, she had an ultrasound of her left shoulder which reportedly showed a full thickness tear of the supraspinatus tendon.
6. Her claim for compensation dated 25 May 2021 was accepted.
7. She took Panadol and Nurofen and had physiotherapy. A cortisone injection gave her some transient relief. She had a further left shoulder ultrasound on 25 August 2021 and an ultrasound of her right shoulder on 15 June 2022, arranged after her right shoulder became sore due to overcompensating.
8. On 29 August 2022, her GP, Dr Abid Mushtaq, referred her to Mr Ash Chehata, shoulder, elbow and wrist surgeon.
9. The plaintiff saw Mr Chehata on 4 September 2022. At that stage, she was continuing to experience left shoulder pain and restriction. They discussed various treatment options. An MRI scan was requested, a hydrodilatation was arranged and Mr Chehata requested approval for rotator cuff repair surgery.
10. On 5 October 2022, the plaintiff had an MRI scan of her left shoulder condition and was reviewed by Mr Chehata five days later. The MRI scan reportedly confirmed some fraying of the labrum and AC joint. By notice dated 30 December 2022, Mr Chehata's application for funding of left shoulder surgery was rejected.
11. When reviewed by Mr Chehata on 16 February 2023, the plaintiff was still complaining of ongoing under chest wall pain, under tricep pain and left shoulder pain. A further request was made for surgery funding.
12. The plaintiff's mental state deteriorated as a result of her condition and she developed depression and anxiety. She was prescribed Lexapro and Temaze, and referred to a psychologist. She took Ozempic for weight loss and to help manage her diabetes.
13. On 12 May 2023, she had a further left shoulder ultrasound, where the rotator cuff was reportedly intact and there was some bursitis.
14. The plaintiff underwent a CT-guided hydrodilatation of the left shoulder on 22 November 2023.
15. By 2024, she had returned to pre-injury duties, but continued to have discomfort and increased left shoulder soreness after work.
16. She took Nurofen, Panadol and used Voltaren Gel. She continued to consult her GP and specialists.
17. As at January 2024,[5] she continued to experience persistent left shoulder pain and restriction. There was a deep, dull aching pain in the shoulder joint, with sharper flare-ups of pain. Her shoulder felt stiff and sore and her pain was aggravated by activity. The pain ran into the side of her neck. There was pain in the girdle region. There was a clicking sensation in the shoulder joint with discomfort.
18. She had better days, but the pain was fairly constant.
19. Left shoulder pain she had experienced in 2019 settled. The current symptoms were stronger and flowed directly from the incident. She was worse in cold weather.
20. She experienced a number of physical restrictions due to her injury. Her left arm and shoulder felt weaker and less mobile. She had lost confidence in her left arm. She had greater difficulty with pushing, pulling, lifting and carrying, side movements, rotation and overhead movements. She tried to do things and to move normally, but she experienced pain.
21. She suffered from sleep disturbance due to left shoulder pain. It was harder to get comfortable and fall asleep. She experienced broken sleep, and lying on her left side was uncomfortable. She used pillows to adjust her position. She often felt tired due to the lack of quality sleep.
22. She experienced consequential right shoulder pain due to her left shoulder injury.
23. Her injuries impacted various aspects of her domestic life. Heavier cleaning chores were harder, such as vacuuming, laundry, mopping and gardening.[6]
24. She tried to maintain her home, but was slower, and she often ended up in pain. Handling heavier pots and pans and food shopping could bring on symptoms. She had greater difficulty with aspects of grooming and selfcare, such as drying and doing her hair. Aspects of dressing were harder. Reaching into a jacket produced discomfort.
25. She had previously enjoyed a variety of hobbies and pastimes which had been impacted by her injury, including watching television, reading and socialising with friends and family, and outdoor activities. She was less outgoing and social due to her condition. She tried to live a normal life and do things, but she got less enjoyment out of life due to pain.
26. She experienced feelings of depression and anxiety as a result of her left shoulder pain and restriction. She suffered from low mood, stress and low energy. She was worried and frustrated about her condition. She experienced feelings of hopelessness and helplessness. She was more emotional and less resilient. She became teary and felt a bit down in the dumps.
27. Prior to her injury, she was working part time. She continued to work but found it harder and she became sore. It took her longer to recover between shifts. She did her best and enjoyed her work, but her serious injury interfered.
28. The plaintiff continues to take Panadol, Nurofen, Voltaren Gel and Panadeine Forte and sees her GP.[7] She has been taking Panadeine Forte since 19 May this year. She takes one tablet every three days.[8] It was recently prescribed on 19 September and 24 October 2025.
29. The plaintiff wants to have surgery, as recommended by her surgeon, but funding was rejected by WorkCover. She is stuck treatment wise. Physiotherapy did not help. She has no choice but to push on and she is not sure what else she can do in the circumstances.
30. The consequences deposed to in her first affidavit continue. She continues to experience persistent left shoulder pain and restriction. There is an ongoing deep, dull, aching pain in the shoulder joint with sharper flare-ups of pain. Her left shoulder still feels stiff and sore. She gets pinching pain on certain movements.
31. Her pain continues to be aggravated by activity. The pain runs into the side of her neck and there is pain in the girdle region. There is a clicking sensation in the shoulder with discomfort. The pain is variable. She has better days, but the pain is fairly constant.
32. The plaintiff was asked about a number of examinations where she was reported to have described her left shoulder pain as intermittent and coming and going. She disagreed that that was what she had told those examiners - Dr Rauchberger, Mr Pullen, Dr Journeaux and Dr Sheard. She experiences constant pain.[9] "Intermittent" was not a word she used.[10] She confirmed her affidavit descriptions of pain.[11]
33. She continues to experience a number of physical restrictions due to her physical injury. Her left shoulder hangs a bit lower. Her left arm and shoulder still feels weaker and less mobile. She has lost confidence in her arm and has difficulty with various movements. Her mobility is reasonable, but not what it was like before. She tries to do things and to move normally, but she gets pain.
34. In the witnessbox, the plaintiff was sitting with her right hand holding her left wrist because her shoulder hurt, "that made it comfortable". She had not done anything before coming to Court and had just woken up with a sore arm. She agreed that that was how she had to go about her day generally, keeping her shoulder and arm fairly immobile; in other words, not moving her shoulder around.[12] She confirmed that on a normal day at work or at home watching television, her left shoulder is so bad that she has to hold onto her left wrist.[13]
35. She continues to suffer from sleep disturbance due to left shoulder pain and it remains harder to get comfortable and to fall asleep and she still experiences broken sleep. Lying on her left side is uncomfortable and she still uses pillows to adjust her position. This causes her to feel tired due to lack of quality sleep.
36. The plaintiff agreed she told Dr Sheard when seen in September 2025 that she had difficulty getting to sleep and was woken approximately every four hours. She then goes back to sleep for another four hours - "It's only because I have to reposition my arm".[14]
37. She continues to experience consequential right shoulder pain due to her left shoulder injury and overreliance.
38. Her condition still impacts various aspects of her household and domestic life, including heavier cleaning chores such as vacuuming, mopping, gardening and laundry. She goes to the laundromat more often. She tries her best to maintain the house but is slower and doing so often ends in pain. Handling heavier pots and pans and chopping food remains more problematic. Her son helps out more with chores, including shopping and carrying groceries.
39. She tries to look after her grand nephews, but finds it hard.
40. She is able to drive. Her shoulder becomes sore if she drives for too long. She agreed, as Dr Sheard reported, driving was unaffected but said, "Well, if you do one-armed driving. Sometimes." In response to my question, she said she did not have a problem driving.[15]
41. She continues to have greater difficulty with aspects of grooming and selfcare, such as drying and doing up her hair. She uses a detachable shower head. In cross-examination, she agreed the detachable shower head had nothing to do with her left shoulder because she is right handed.[16]
42. Aspects of dressing remain hard, such as reaching into her jacket and putting on her bra.
43. She continues to experience limitations with hobbies and pastimes previously described. She has no difficulty with her shoulder watching television or reading.[17]
44. Her lower mood and feelings of depression remain.
45. She continues to work part time performing most, if not all, of her previous duties. She still uses her left arm, but experiences pain and discomfort. She tries to get on with work as best she can.
46. It is not in her nature to complain or to rock the boat. She does not have any work restrictions currently. It is not something she has pursued. She does not want people to know she is struggling, but she is having problems. She has tried to adapt and find work arounds, but it is not straightforward.
47. She tries to move normally and to use her left arm, but relies more on her right. She relies more on the stamina machine at work. However, she agreed that machine is for moving patients around and it is a piece of safety equipment in the hospital which staff were instructed to use as much as possible, whether they had an injury or not.[18]
48. She finds the work harder and she gets sore during and after her shift. She tries to push on. It takes her longer to recover between shifts. She enjoys the work and wants to work, but her serious injury interferes.
49. When she arrives home from work, she is sore with pain and she tries to rest up for the next shift and take it easy. The pain tends to build up and is worse at the end of the working week cycle.
50. She works 75.5 hours a fortnight in week one, six days with Monday off, and the second week, four days, with three days off.[19]

1. The plaintiff was shown surveillance film taken of her on 30 June 2025. She agreed there was no sign of her holding her left wrist with her right hand.[20] She agreed that at the various stages during the film, she picked up a small child, her grandnephew ("the baby").
2. She disagreed, when at Coles, she was moving her arm quite normally without any shoulder problems. She can still lift her arm, but it is sore afterwards.[21] She agreed she adjusted her hair with both her hands above head height.[22]
3. She agreed she pushed the baby on the swing with her left hand while smoking a cigarette in her right. She was not using her shoulder, she was actually using her arm.[23] While she used her left hand to push the baby, there was a problem with her left hand.[24] There was no sign of pain and she appeared to be smiling when pushing the baby because she "pushed the pain away to spend time with the baby" because she did not get him very often. She "loves him to bits". While pushing the baby on the swing, she just started feeling the pain, and afterwards it was painful, but "I just go with the pain".[25]
4. The plaintiff agreed that on 30 June, she picked up a basket of laundry from inside the laundromat and carried it to the car and put the basket in the boot of the car.[26]
5. She disagreed that any problem she might have with her left shoulder was fairly modest and there was not much of a problem with it. She did have difficulty looking after the baby, doing washing and shopping.
6. Before her injury she used both hands, even though she is right handed.
7. In re-examination, she confirmed at approximately 14:12 on 30 June 2025, there was a moment she was holding her left arm closer to her body after moving the laundry basket. She did so because her arm was starting to become painful. She used her left foot at 14:53 to push open the back door of the car because her left arm was sore. Gabriel was with her to help her with the shopping. She rested her mobile phone on her knee while speaking just to rest her arm.[27]

1. The plaintiff's son, Gabriel Raukawa Koperu, swore an affidavit on 12 November 2025. He is thirty-five and works as an assistant manager at Starbucks. He lives with his parents.
2. He is aware of the plaintiff's injury. Prior thereto she was fairly active, physically strong and capable. Since then, he has observed her experiencing ongoing left shoulder and arm pain.
3. Her condition seems to get a bit better with rest, but worsens with normal activity. He sees she continues to be troubled by left shoulder pain.
4. The plaintiff has greater difficulty with overhead movements and reaching for items in the cupboard. She is weaker and less mobile. He has seen her having greater difficulty with carrying and pushing, whereas she was previously stronger. The injury had slowed her down.
5. The plaintiff was previously very capable around the house and able to cook and clean and do most things well. She is house proud, but her injury makes it harder, and he can see she is troubled by pain and discomfort, and she is slower with chores. He tries to help out with the groceries, shopping and other chores, and often helps her with her hair.
6. The plaintiff is less outgoing and active due to her shoulder condition. He has encouraged her to do more things. She is very family focused, but has problems playing and engaging with the younger members of the family like she wants to. She seems pretty down due to her condition. He has never known her to complain and she tends to bottle up her feelings. He can see though that she is suffering and he has seen her become overwhelmed and teary as a result of her injury.
7. The plaintiff has always been a hard worker and is a "tough cookie". It is not in her nature to stop work despite her challenges. She continues to work, but she is clearly sore when she arrives home. She tends to sit on her bed more, or in an armchair, recovering after a shift. He feels bad for her. He has tried to give her the odd massage, but it does not seem to help her.

1. Dr Mushtaq referred the plaintiff to Darren Rose, physiotherapist, in May 2021 for left shoulder treatment, noting the ultrasound showed a left supraspinatus complete tear.
2. Dr Mushtaq referred the plaintiff to Mr Chehata on 29 August 2022. He advised him that physiotherapy had not improved her symptoms. Ultrasound showed a full thickness tear of the supraspinatus tendon.
3. Dr Mushtaq reported to the plaintiff's solicitors in November 2024.
4. He noted there was no prior shoulder pain before injury.
5. The plaintiff reported ongoing shoulder soreness, worse after work. She was taking Panadol and Nurofen for pain. There were ongoing symptoms despite conservative management. Further physiotherapy was planned.
6. The plaintiff was then doing theatre work Tuesday to Thursday, lifting, sweeping, mopping, patient transport and team leader Friday to Sunday afternoon.
7. Following the incident, the plaintiff initially had a week off work, followed by light duties for a month, and then returned to normal duties. She was seen first on 14 May 2021, reporting injury to her left shoulder and elbow while at work transporting patients.
8. In May 2024, the plaintiff started performing her normal unrestricted duties.
9. Her job as a PSA had materially contributed to the development of her ongoing pain. She had been able to return to pre-injury employment, but reported the pain to be aggravated occasionally during her job. She reported ongoing shoulder soreness, worse after work, and she had to take painkillers often. She wanted to continue working, but preferred lighter duties.
10. Hydrodilatation had improved her symptoms to some extent. The possibility of surgery had been discussed by her surgeon.
11. The prognosis was guarded and she would probably require physiotherapy and pain management. There was a possibility that she would need surgical intervention in the future if she experienced worsening of her symptoms. There is little improvement in the severity of her symptoms, but she has not been pain free.
12. Dr Mushtaq's most recently reported on 6 November 2025.
13. On recent examination:

"Pain is worse with lifting arm and after 90 degrees of abduction. Internal and external rotation are also limited and painful. Reports clicking in the shoulder. Can carry things in the left arm for a short period before it starts to pull. > > ... range of motion of the shoulder is painful. ... ."

14. The diagnosis appeared to be right [sic] shoulder full thickness supraspinatus tear and subacromial bursitis. Subsequently, the plaintiff developed frozen shoulder and aggravation of glenohumeral and AC joint osteoarthritis.
15. The October 2022 MRI scan showed no signs of rotator cuff tear.
16. The prognosis is guarded. The plaintiff requires assistance with heavy lifting at work. She wants to continue working but prefers lighter duties. She may benefit from performing lighter duties in the future.

1. On 2 September 2022, Mr Chehata sought funding for:

"- Left shoulder scope and cuff repair > > - MRI Left Shoulder ? cuff tear and hydrodilatation left shoulder."

2. Mr Chehata wrote to Dr Mushtaq on 4 September 2022.
3. He noted the plaintiff had been developing ongoing bilateral shoulder pain with the left far worse than the right for a year or so. She had a full thickness rotator cuff tear on that left side and had a cortisone injection with minimal improvement. She was still working as a PSA with minimal time off, but unfortunately she was developing ongoing weakness and restriction in terms of her lifting capacity, causing significant pain. She had an adhesive capsulitic picture on the left, coupled with a full thickness rotator cuff tear on a background history of Type 2 diabetes.
4. They discussed the issues of smoking, as well as the potential for healing of the rotator cuff regardless. He had spoken to her about the options and he thought the idea of at least organising an MRI scan to clarify the extent of the rotator cuff would give an idea of how long she would need to be in a sling if repair were required. He had also sent her for a hydrodilatation, as he thought this may actually help her and assist her with pain.
5. Once he had the scans he would contact the plaintiff directly and he would tentatively also apply for a rotator cuff repair, as a full thickness rotator cuff tear in the setting of almost a year, especially with physiotherapy, is unlikely to improve with time.
6. He certainly thought, after the operative intervention, if required on MRI scan, particularly if the full thickness rotator cuff tear is confirmed, the plaintiff would need quite regular physiotherapy and remedial massage for at least three to six months.
7. On 10 October 2022, Mr Chehata again wrote to the GP. He noted that the MRI scan of 5 October 2022 confirmed some fraying of the labrum and AC joint. It was something the plaintiff was keen to just see how things go and he was happy to give her a full clearance to return back to work. Obviously if this does flare up, he was more than happy to perform operative intervention.
8. On 19 October 2022, Mr Chehata again sought funding for the same procedure. On 16 February 2023, Mr Chehata advised the GP that funding had again been rejected by WorkCover.
9. As of February 2023, the plaintiff was still complaining of ongoing under chest wall pain, under tricep pain and restriction, and there was an element of ongoing left shoulder pain.
10. The plaintiff had a reasonable range of movement and due to the failure of conservative measures, an arthroscopy decompression and excision of the AC joint can sometimes improve the progress.
11. From his perspective, the plaintiff was planning on transitioning from modified to full duties and hopefully it was just a matter of allowing the operative intervention to improve a situation so that she could return to her full duties as soon as possible. He would be re-applying for surgery funding.

1. Darren Rose thanked the GP for referring the plaintiff in May 2021 with a left shoulder supraspinatus bursitis.
2. He advised that the plaintiff had full range of elevation with pain at the extremes of range, 40 degrees internal rotation, negative empty can test and positive impingement. Although she had a full thickness tear, she did not have a rupture, and he believed her continuing strength suggested she will most likely not require surgery.
3. Treatment included acupuncture, mobilisation and rotator cuff strengthening and stretching. The plaintiff should avoid arm movements above shoulder height and lifting with that arm.

1. The plaintiff underwent a left shoulder ultrasound on 6 June 2019. The major finding was acute tendinopathy of the subscapularis with associated bursitis.
2. The plaintiff had a further left shoulder ultrasound on 17 May 2021. It was reported there was a 2-millimetre wide full thickness tear of the mildly tendinopathic supraspinatus tendon. There was mild subacromial subdeltoid bursitis and glenohumeral joint effusion.
3. There was a further left shoulder ultrasound on 25 August 2021. Thickening of the subacromial bursa was shown in keeping with some changes of bursitis. There was no rotator cuff tear or impingement seen. Fluid was shown within the sheath of the biceps tendon.
4. The plaintiff had an MRI scan of her left shoulder on 5 October 2022. It was reported there were signs of advanced osteoarthritic changes in the AC joint. There were no signs of a cuff tear. There were signs of proximal long head of biceps tendinosis and mild inflammation of the rotator interval.
5. On the most recent left shoulder ultrasound on 12 May 2023, there was no significant change compared with the previous imaging of 2022. There was mild bursitis and the rotator cuff was intact.

1. Dr Sheard examined the plaintiff in September 2025.
2. The plaintiff then described pain at the superior and inferior aspects of the left shoulder which comes and goes, worse with carrying and holding, unable to work above her head, and arm fatigue. She described clicking in the shoulder joint.
3. The plaintiff advised her job involved pushing, pulling and mopping and she found her pain worse towards the end of the working week.
4. On examination, the right shoulder was slightly higher. There was no obvious muscle wasting in the left shoulder. There was tenderness over the anterior joint line of the left shoulder.
5. The plaintiff sustained an injury to her left shoulder, diagnosed as a full thickness tear of the supraspinatus tendon, along with some subacromial subdeltoid bursitis. A further MRI scan showed some biceps tendonitis and advanced osteoarthritic changes in the acromioclavicular joint.
6. As a result, the plaintiff has difficulty getting to sleep and is woken approximately every four hours.
7. The plaintiff is able to perform her job with full hours and minimal modifications, although this does make her symptomatology worse towards the end of the working week, noting she was working full time in unrestricted work in her pre-injury position.
8. The plaintiff's prognosis remains stable and she was unlikely to have any worsening or improvement in her symptoms in the foreseeable future.
9. Having been provided with the ultrasound of the left shoulder of June 2019 and comparing it to the May 2021 ultrasound, he noted a full thickness tear of the supraspinatus tendon described in 2021 was described as normal in 2019.

1. In total, there were five days of surveillance. On 30 June and 17 July 2025, there was 15 hours of surveillance with 27 minutes of film. On 30 October and 3 and 7 November 2025, there was 15 hours of surveillance with 7 minutes of film.

1. Mr Pullen examined the plaintiff on 29 May 2023.
2. The plaintiff then described persistent right shoulder pain despite non-operative treatment. To his knowledge, she had no history of left shoulder problems prior to the incident.
3. The plaintiff's main complaint was intermittent left shoulder pain, worse at night and exacerbated by activities, including overhead reaching. She described her pain as situated both in her left axillary area and the superolateral aspect of her shoulder girdle. She described shoulder muscle weakness and crepitus with joint movement.
4. Testing of the strength of the rotator cuff muscles showed 4/5 power at the supraspinatus, infraspinatus and subscapularis muscles. The plaintiff had negative impingement signs, but a painful arc with shoulder abduction. She had pain with a Speed's test revealing evidence of biceps pathology. She had no pain with cross arm abduction. She had scapulothoracic crepitus with joint movements.
5. The diagnosis was left shoulder adhesive capsulitis. That condition and need for treatment was contributed to by the claimed injury. She also had Type 2 diabetes and this condition has likely also been a factor in the development of her adhesive capsulitis.
6. The proposed left shoulder arthroscopy and rotator cuff repair was not an appropriate way to treat the plaintiff's accepted work-related compensable injury. Examination of her left shoulder revealed 4/5 power of her supraspinatus, infraspinatus and subscapularis muscles. Her left shoulder MRI scan in October 2022 was reported as showing the tendons of the rotator cuff were reasonably well preserved with no signs of tear. Therefore, the proposed left shoulder arthroscopic surgery is not indicated.
7. The plaintiff was currently using Voltaren Gel as needed.
8. The plaintiff's current physiotherapy should cease and recommence after she had undertaken a hydrodilatation. That procedure would be of benefit to her, followed by one to two sessions of her week of physiotherapy for three months.
9. The plaintiff advised she was currently performing the majority of her normal duties as a PSA. She explained she was unable to lift. She was working normal hours.
10. The plaintiff reported left shoulder symptoms prevented her participating in social activities. She advised she experienced increased left shoulder pain when she undertook activities, including domestic and personal care. She indicated her pain interrupted her sleep every night and was exacerbated by travel. She was not able to lift anything because this activity exacerbated her left shoulder pain.
11. The plaintiff's ability to undertake her activities of daily living would be enhanced by a successful left shoulder hydrodilatation followed by physiotherapy.

Dr Simon Journeaux, consultant trauma and orthopaedic surgeon

1. Dr Journeaux saw the plaintiff in August 2025.
2. The plaintiff currently described intermittent pain over the posterior shoulder cape area, but predominantly over the posterior shoulder. This occurred intermittently on multiple occasions. The pain occurred three to four times a day and was generally transient and up to 6/10. It was aggravated by work activities, particularly weighted pushing and pulling and repetitive activities such as mopping. She gained relief from activity modification and rest.
3. The plaintiff had been able to continue working as a PSA without restriction. She had difficulty doing her hair and moderate difficulty in all other selfcare and personal hygiene tasks. She had moderate difficulty in cooking and housework and required assistance with laundry and ironing, and generally went to a laundromat. She required assistance with shopping and carrying groceries.
4. There was a 2019 ultrasound for pain from which she felt recovered without specific treatment.
5. Examination of the left shoulder revealed some tenderness on palpation. Active range of movement revealed some restriction and there was a "clunk" which was reproducible on passive external rotation.
6. He was provided with the full range of investigation reports and treater and medico-legal reports.
7. The plaintiff suffered a soft tissue injury to her left shoulder in the incident in the presence of age-related rotator cuff tendinopathy. Some months later the shoulder injury was complicated by the onset of adhesive capsulitis.
8. The plaintiff had made a partial recovery with the passage of time and treatment to date, with the current symptoms in part related to the incident and in part the natural history of rotator cuff tendinopathy. He suspected an incomplete recovery from adhesive capsulitis.
9. The plaintiff had continued to work as a PSA performing the usual duties.
10. The plaintiff currently complained of recalcitrant intermittent pain of her left shoulder, consistent with the presence of rotator cuff tendinopathy.
11. On the balance of probabilities, the plaintiff would likely have experienced increasing symptoms referable to the left shoulder in absence of the incident. She would have experienced symptoms of a similar severity essentially from where she is currently. The incident injury caused an exacerbation and acceleration of the condition in terms of symptoms and most likely, in part, pathology. He would not have expected her to make a complete recovery as she is not fit and also has Type 2 diabetes.
12. As the plaintiff presented currently, it would seem that she is pain tolerant and does not require any further specific treatment currently. She would be at high risk of post-operative stiffness if arthroscopic or other shoulder surgery were undertaken. Any further treatment should ideally be nonoperative and would comprise an intermittent course of physiotherapy, plus or minus targeted injections under ultrasound.

Associate Professor Ilan Rauchberger, consultant psychiatrist

1. Associate Professor Rauchberger examined the plaintiff in August this year.
2. The plaintiff stated she continued to experience pain in her left shoulder on an intermittent daily basis, which is worse with certain activities.
3. He diagnosed mild Adjustment Disorder with Mixed Anxiety and Depressed Mood that had now resolved. It had occurred in the context of pain and physical restrictions following the incident. The psychiatric prognosis is positive.

1. There was no relevant left shoulder condition pre incident.[28]
2. The defendant accepted the plaintiff has a left shoulder condition with ongoing consequences, "but when one looks through the prism of what is required for serious injury, it falls well short".[29]

1. The consensus of medical opinion is that the plaintiff now suffers left shoulder adhesive capsulitis. A tear of the rotator cuff was detected on the ultrasound on 17 May 2021 but not found on subsequent investigations: ultrasound on 25 August 2021; MRI scan on 5 October 2022 and ultrasound on 12 May 2023.
2. The incident continues to materially contribute to the plaintiff's present left shoulder condition. Dr Journeaux provided no path of reasoning to explain why the plaintiff would have experienced symptoms of a similar severity absent the incident.

1. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[30]

"... 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."

2. The defendant submitted the surveillance material is significantly at odds with the plaintiff's claimed difficulties pushing, pulling, lifting, carrying and side movements et cetera.[31] Clearly, the way she presented in court in the witnessbox was at odds with what was shown on the film.[32]
3. In the film, the plaintiff is clearly engaged in the activity of holding the baby. She seems to transfer him from one arm to the other. She pushes the baby on the swing with her left hand. At one stage, she took the front of the swing and slowed the baby down using her left hand only and then again pushed him on the swing. She was also shown handling the baby when her partner was present. On one occasion she was filmed putting her hands up and adjusting her ponytail.
4. The plaintiff submitted the attack on the plaintiff's credibility and reliability "just is not there". Her affidavit is entirely consistent with the surveillance film. She is a witness of truth. She has not exaggerated, embellished and not dodged and weaved. When confronted with a question, she gave a direct answer without hesitation. She was an impressive witness.[33]
5. The plaintiff's activities at the laundromat "are the function of a good woman trying to help her family and doing things for her baby, and she ought not be marked down for it".[34] The plaintiff's left arm was hanging down when she was filmed smoking - consistent with her posture when she was examined by Dr Sheard. Her left arm was held closer to the body after she unloaded the full washing basket into the rear of the car.[35]
6. In my view, there was little shown on the surveillance film of any particular restriction of left shoulder movement or left shoulder problem. The plaintiff was seen looking after her grandnephew, picking him up, carrying him and pushing him on a swing - using her left non dominant hand. She was also shown carrying a full basket of laundry.
7. As the defendant submitted, on the film, there does not appear to be any obvious impediment to the plaintiff's activities.[36]
8. Further, the plaintiff's presentation in the witnessbox was somewhat at odds with this level of unrestricted activity - confirming, in answer to my question, that the posture adopted - holding her left wrist with her right hand - was the way she usually held her hand whether working or watching television. Clearly, this could not be the case given the plaintiff's ability to work in a relatively heavy job as a PSA at the Hospital on a near full-time basis without any modifications.[37]

1. To date, the plaintiff has been under the care of her GP. A number of investigations have been undertaken.
2. She had physiotherapy and underwent a cortisone injection which gave her some transient relief. She had a hydrodilatation procedure in November 2023.
3. The plaintiff was referred to shoulder surgeon, Mr Chehata, who has requested funding for arthroscopic surgery on two occasions. WorkCover has refused funding for this procedure.
4. Despite his repeated requests for funding,[38] Mr Chehata does not appear to be a particularly strong supporter of this surgical course, preferring to take a 'wait and see' approach and being prepared to certify the plaintiff's fitness for resumption of her normal work duties in late 2022.
5. The current radiology and the totality of investigations does not show the rotator cuff tear that was only apparent on one investigation - the May 2021 ultrasound - and not found on the more detailed MRI in 2022. On that MRI, the tendons of the rotator cuff were reasonably well preserved and there were no signs of a cuff tear.
6. Further, the other available medical opinion is not in favour of arthroscopic surgery being undertaken.
7. As early as 2022, Dr Pullen advised against the surgery given the power in the plaintiff's left shoulder muscles on examination at that time - a similar view shared by physiotherapist, David Rose, in 2021.
8. Dr Journeaux also spoke against surgery in August 2025, noting the plaintiff would be at high risk of post-operative stiffness if arthroscopic or other shoulder surgery is undertaken.
9. Dr Sheard thought the plaintiff's prognosis remained stable and she was unlikely to have any worsening or improvement in the future.
10. The GP talks about surgery if the plaintiff's left shoulder condition deteriorates, but not currently.
11. The plaintiff's medication regime is modest. Currently, she takes only a small dosage of Panadeine Forte, first prescribed in May this year. She also takes non-prescription medication when needed.

1. In Haden Engineering v McKinnon,[39] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors);
2. The plaintiff deposed to persistent left shoulder pain and restriction - a deep dull aching pain in the shoulder joint with sharper flare ups of pain. She has her better days but the pain is fairly constant. More recently, she described her pain in similar terms. The pain is variable, but it is fairly constant.
3. This description of pain is clearly at odds with the plaintiff's description to four examiners of intermittent or on and off pain. While the word "intermittent" is not one she uses, that word was not in quotes in the various reports. Although she denied she had described her pain as such, she ultimately seemed to accept she did speak to doctors when seen rather than just being examined.[40]
4. Overall, while the plaintiff continues to suffer pain and aching in her left shoulder, she does not suffer a continuous substantial level of pain. Confirmatory of this is her ability to work full time in a relatively heavy job without modification or the need for strong painkillers [41]

1. Post incident, the plaintiff initially had a week off work and then one month on modified duties before returning to her physical job as a PSA in May 2024.
2. Since that time, she has worked a 75.5-hour fortnight. There has been no suggestion of any medical restrictions after her return, nor suggestion of time off, or absences due to not being able to cope because of shoulder pain.[42]
3. As the defendant submitted, all doctors who commented seem content for the plaintiff to continue pre-injury duties, which it is accepted have a fairly significant physical component. There is no suggestion on the medical evidence the plaintiff is doing more than she can and that she will not be able to continue this work. She agreed she enjoys the work and finds it rewarding. The stamina machine is something that all staff are told to use anyway, and it is nothing peculiar to her.[43]
4. While the plaintiff's evidence is that she struggled with pain and it took her longer to recover between shifts, described by her son as a "tough cookie",[44] in my view, this is not a case of the plaintiff being a stoic. She would be unable to engage in this high level of physical activity if she was experiencing significant left shoulder pain.[45]

1. The plaintiff relied on all the consequences deposed to. As counsel submitted - "True it is there might not be encyclopaedic detail behind it ... but that's a function of a fairly uncomplicated person trying to do her best and express her words, and this is a bad situation to be in for a manual worker".[46]
2. While the plaintiff deposed to sleep disturbance due to shoulder pain, she agreed it was correct, as she recently told Dr Sheard, that she is able to sleep for four-hour blocks.
3. Issues with driving seem to be limited. In answer to my question, the plaintiff said driving was unaffected by shoulder pain but she had earlier mentioned driving with one arm.[47]
4. Gardening has never been an interest. There are no problems with her shoulder when reading or watching television. Particular problems with socialising were not described in any detail in the plaintiff's affidavits.
5. It is difficult to see how there could be any significant issues with housework given the nature of the plaintiff's work duties; however, I accept there may be some issues with heavier aspects of housework that require use of both hands.
6. There was no sign of difficulty with her shoulder doing tasks at the laundromat, and filling the basket and taking it to the car full of clothes.
7. As the defendant submitted, the plaintiff's son's affidavit does not particularly advance matters. There were some broad observations and matters of opinion.[48]
8. Taking into account all the evidence, I am not satisfied the consequences of any left shoulder impairment - the plaintiff's non-dominant arm - are "serious".
9. Accordingly, the application is dismissed.

[1] [2005] VSCA 33; (2005) 14 VR 622

[2] [2010] VSCA 69; (2010) 31 VR 1

[4] Position Description PSA, 29 March 2018

[5] Plaintiff's first affidavit sworn on 7 January 2024

[7] Plaintiff's affidavit sworn on 11 November 2025

[41] Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at paragraph [48]

[45] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [4]