Plaintiff v Defendants

Plaintiff v Defendants - [2014] VSC 135 - VSC 2014 case summary — Zoe

[59]

[The worker] told the Panel that she was employed to work 19 hours per week on a variable roster basis, including weekends, but she said that she routinely 'took on extra shifts', often working up to 30 hours per week.

The worker told the Panel that in about late 2011 she began to experience gradually increasing pain in both her shoulders, right worse than left. She said that she eventually consulted her general practitioner on 14 January 2012, and she told the Panel that she was investigated with Xrays and ultrasound scans, that she was prescribed analgesia and the anti-inflammatory agent Celebrex, that she was referred to physiotherapy, and that she was provided with a Certificate of Capacity for restricted duties. She told the Panel however that at that time suitable duties were not made available to her, and ... she was told by her employer to stay at home.

The worker told the Panel that she received further treatment with ultrasound-guided cortisone injections, which were administered to her right shoulder on 2 February 2012 and to her left shoulder on 9 February 2012. She described good response to both injections, and she said that for about 6-8 weeks the pain in both her shoulders improved by approximately 80%.

The worker told the Panel that on 26 March 2012 she commenced a graduated return to work in restricted duties, starting initially with 3 hours per day on 3 days per week. She told the Panel that her duties were limited to setting tables, filling water jugs and baking cakes, but she said that by this time the effect of the cortisone injections was 'starting to wear off'. She told the Panel that due to increasing pain in both her shoulders she struggled to cope with her restricted duties, and she said that on 18 April 2012 she was certified unfit for work. She told the Panel that she has not returned to any form of employment since that time.

The worker told the Panel that on 3 April 2012 she underwent a second ultrasound-guided cortisone injection to her right shoulder. She told the Panel that the injection was again beneficial, but she said that on this occasion her pain improved by only about 70% and the improvement lasted for only about six weeks.

...

She told the Panel that on 24 December 2012 she also received treatment with two further cortisone injections, one to each shoulder, which were administered by the rehabilitation specialist in his rooms. She told the Panel that once again there was some benefit from this treatment, but she said that on this occasion her pain improved by only about 50%, and only for two weeks.

...

The worker currently complains of constant pain of variable severity affecting the whole of both shoulders, including the posterior shoulder girdle and the right and left lateral aspects of the neck, which is most severe in the mornings and at night, and which improves a little during the day, usually between the hours of noon and 4 pm. She said that her right shoulder is worse than her left, and she described intermittent associated radiation of pain from her right shoulder into the anterior aspect of her upper limb, as far as the right index and middle fingers. She told the Panel that her right index and middle fingers feel numb, but she said that she does not drop things with either of her hands.

She told the Panel that she has no radiation of pain into her left upper limb.

The worker told the Panel that her range of movement of both shoulders is limited by pain, and she said that she cannot lie on her right side without discomfort. She told the Panel that she is woken up by pain if she rolls over onto either her right side or her left side during sleep, and she said that on average she will only sleep for about two hours at a time. She told the Panel that as a result she often requires 'nana naps' during the day.

The worker told the Panel that she also suffers from frequent frontal headaches, which she described as being 'behind the eyes'. She told the Panel that the headaches develop during the day on at least two days each week.

...

The worker told the Panel that she continues to require narcotic analgesia and said that she currently takes Targin, 20mg twice a day, and Nurofen Plus, 2 tables twice a day. She said that she also takes Lyrica (a neuropathic pain modifying agent) 75mg in the morning and 150mg at night, and she told the Panel that she applies a hot water bottle to both her shoulders for additional pain relief.

...

The Panel confirmed with the worker her history of a previous right shoulder problem involving a supraspinatus tear demonstrated on ultrasound in May 2009, a thoracic haematoma, which she sustained when she was assaulted in March 2011 at which time her right arm was also forcibly twisted behind her back, a fracture of the L1 vertebra in December 2008, and depressive illness, for which she was prescribed the anti-depressant Cymbalta in August 2011. The worker told the Panel that she did not require treatment, and that she did not lose time from work, as a result of her 2009 right shoulder problem, and she said that she made a full recovery. She told the Panel that she did not sustain a further injury to her right shoulder during the assault incident in March 2011.

[61]

On physical examination the Panel noted that the worker demonstrated a normal posture, with level shoulders and normal cervical spinal and shoulder girdle contours, without any evidence of muscle spasm, wasting or atrophy. Range of motion of the cervical spine was mildly limited by pain in lateral flexion to the left and in left rotation. Examination of the right and left shoulder revealed diffuse, non-specific and variable, soft tissue tenderness to palpation. Ranges of active motion of both shoulders were globally and variably mildly limited by pain. Full ranges of passive glenohumeral motion were demonstrated bilaterally, and there was no clinical evidence of impingement. Crepitus was not elicited and neurovascular examination of the right and left upper limbs did not reveal any abnormalities. In particular, there was no clinical evidence of right carpal tunnel syndrome, and Tinels's and Phalen's tests for carpal tunnel syndrome were negative.

The Panel did not review any medical imaging but noted the radiological reports of investigations which were included with the Referral material. The Panel noted the report of an ultrasound scan of the right shoulder, dated 26 May 2009, which described a 'focal tear within the posterior supraspinatus tendon with secondary sonographic signs suggesting full thickness extent'; the report of plain Xrays and ultrasound scans of the right and left shoulders, dated 19 January 2012, which described a type III acromion with a prominent anterior spur, minor supraspinatus tendinosis without a tear, and slight thickening of the subacromial bursa in the right shoulder, and minor degenerative changes of the acromioclavicular joint, mild supraspinatus tendinosis, and slight thickening of the subacromial bursa in the left shoulder; the report of a further right shoulder ultrasound scan, dated 2 July 2012, which concluded that there was a 'Low grade partial thickness articular sided tear of the mid supraspinatus tendon (and) Mild subacromial bursitis with evidence of shoulder impingement at approximately 80°'; and the report of an ultrasound scan of the left shoulder, dated 13 August 2012, which described mild thickening of the subacromial bursa and findings 'suggestive of a small partial thickness tear rotator cuff along its deep humeral attachment.'

The Panel considered that neither additional radiological imaging nor any other investigations were required for it to complete its assessment of the worker's physical medical condition and answer the medical questions.

[65]

The Panel concluded that the worker is currently suffering from an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder, relevant to the claimed both shoulders injury.

...

The Panel considered that the worker's current psychiatric condition of a mild chronic adjustment disorder with mixed anxiety and depressed mood is mild and does not affect her work capacity in any way.

The Panel considered the nature of the worker's pre-injury duties, which involved dishing up and serving meals, and other associated kitchen work, in an aged care facility, and which she was employed to perform for a total of 19 hours per week, and where she was able to engage in additional hours of work based on her own choice. The Panel also considered the nature and extent of the worker's current physical and psychiatric conditions, its clinical examination findings, and the information contained in the reports from the various practitioners who have examined and or treated the worker and which were included with the Referral material.

The Panel considered that the nature and extent of the worker's current physical medical condition of an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder is mild, and the Panel also considered that notwithstanding the worker's reported symptoms of pain, she is capable of performing all aspects of her pre-injury employment for 19 hours per week, and also for any such additional further hours as she may wish to undertake.

The Panel therefore concluded that the worker is capable of performing her pre-injury duties.

The Panel noted the opinions of the worker's treating medical practitioners, Drs Stephen De Graaff, rehabilitation physician, and Ian Cook, general practitioner, expressed in their reports, dated 19 November 2012 and 3 December 2012 respectively, which were included with the Referral material. The Panel noted that both medical practitioners considered the worker to have no current work capacity. [The] Panel formed a different opinion to that of Drs De Graaff and Cook in respect of the worker's current work capacity based on its own examination of the worker on 21 January 2013 and for the reasons given above.

The Panel also noted the opinion of the independent medical examiner, Mr Roger White, surgeon, expressed in his report, dated 26 March 2012, wherein he stated that the worker has 'the capacity to return to work in modified pre-injury duties and hours'. Based on its collective experience and expertise the Panel considered that the worker's occupational duties and hours of work did not require modification. The Panel therefore formed a different opinion to that of Mr White based on its own examination of the worker on 21 January 2013 and for the reasons given above.

[172]

(e) The Medical Panel failed to consider or adequately consider that the plaintiff is currently suffering from an aggravation of pre-existing rotator cuff degenerative changes in both the right and the left shoulder caused by the injury to both shoulders arising out of her pre-injury duties.

(f) The Medical Panel failed to consider or adequately consider whether or not the plaintiff's present condition would be aggravated or worsened if she were to return to the duties that caused her injury and condition in the first place;

(g) The Medical Panel failed to consider or adequately consider whether or not the plaintiff had an enhanced susceptibility or vulnerability to injury or further injury and/or failed to consider or adequately consider whether or not such vulnerability or susceptibility would affect her ability to return to her pre-injury duties, especially in circumstances where:

(1) such duties had caused the injury or injuries;

(2) the plaintiff continues to suffer the conditions and symptoms consequential upon the initial injury;

(3) the plaintiff had experienced improvement in her symptoms (she estimated 80 percent improvement) subsequent to ultrasound-guided cortisone injections on 2 and 3 February 2012 but such improvement lasted only 6-8 weeks; and the plaintiff then had further cortisone injections in April 2012 with less improvement (she estimated 70 percent improvement) for only 6 weeks; and that the plaintiff had undergone yet further cortisone injections on 24 December 2012 (4 weeks before the examination by the Medical Panel members) with less improvement (she estimated 50 percent) and for some 2 weeks only;

(4) the plaintiff's GP, Dr Ian Cook, reported on 3 December 2012 that the plaintiff would never be fit for repetitive lifting and shoulder movement;

(5) the plaintiff's treating rehabilitation physician, Dr Stephen De Graaff, reported on 19 November 2012 that the plaintiff was not fit to return to her pre-injury duties and that it was most likely that the plaintiff would need modified duties in the long term, avoiding heavy lifting and carrying, repetitive lifting and carrying, and working above shoulder height;

(6) that Dr David Barton, occupational physician, who had examined the plaintiff on behalf of the insurer and reported to the insurer on 12 July 2012 had opined, that 'I believe the worker has a physical capacity to do her pre-injury duties and hours' but also stated 'I believe she has mild persisting right shoulder symptoms following what appears to be an unresolved soft tissue injury';

(7) and Mr Roger White, Consultant Surgeon, who also examined the plaintiff on behalf of the insurer and reported on 26 March 2012 that the plaintiff had a capacity for work in work for modified pre-injury duties and hours and should not return to duties which require her to raise her arms above her head, lift items which are over 5kg in weight or involve sustained or repetitive activities using the upper limbs.

At a glance

Court

Decision date

Before

Source

Judgment (362 paragraphs)

Parties

Legislation Cited (40)

Cases Cited (13)