V

IN THE COUNTY COURT OF V]CTORIAAT MELBOURNECOMMON LAW DIVISION

SERIOUS INJURY LIST

YODIT KIDANE

VICTORIAN WORKCOVER AUTHORITY

JUDGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION:

Subject:Catchwords:

Legislation Cited

Cases Cited:

Judgment:

APPEARANCES:

For the Plaintiff

For the Defendant

RevisedNot Restricted

Suitaþle for Publication

Case No. Cl-14-01934

Plaintiff

Defendant

HIS HONOUR JUDGE O'NEILL

Melbourne

20 and 21 May 2015

29 May 2015

Kidane v Victorian WorkCover Authority

[2015] VCC 656

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONSerious injury application - injury to right shoulder and right wrist - pain

and suffering only - restriction in areas of employment - whetherconsequences "very considerable" - wrist and shoulder injury as onebody function - Medical Panel ReasonsAccident Compensation Act 1985, s134AB(16Xb); Evidence Act 2008,s1 35Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602: Meadows vLichmore Pty Ltd [2013] VSCA 201 ; Peak Engineering & Anor vMcKenzie lz}l lVSCA 67Leave granted.

Counsel Solicitors

Maurice Blackburn Pty LtdMr R W McGarvie QC withMr M Belmar Salas

Ms J M Forbes QC withMs N Wolski

Minter Ellison

COUNTY COURT OF VICTORIA250 Will¡am Street, Melbourne

HIS HONOUR

Preliminary

t The plaintiff, Ms Kidane, injured her right wrist and shoulder when she was

assaulted by a patient in the course of her work as a personal carer for Doutta

Galla Aged Services ("Doutta Galla"). She was diagnosed as suffering a

ligament injury to her right wrist which was surgically repaired in July 2006. She

was also diagnosed as having a tear to a tendon of the right shoulder which

developed into a frozen shoulder. A hydrodilatation procedure was undertaken.

Ms Kidane was off work for a period, and returned after the wrist surgery,

eventually to her normal 28 hours per week, although with restrictions. Her

ernpioyment was terminated in 2008. At the present time, she does some

voluntary work at the Sunshine Hospita! and work in the community.

She claims a range of domestic, recreational and social activities are lost or

af.rected as a result of the injury.

This is an application for leave to bring proceedings pursuant to s134AB(16Xb)

of the Accident Compensation Act 1985 ("the Act") for injury suffered in the

course of Ms Kidane's employment on 11 March 2006. The body function said

to be lost or impaired is the right upper limb. The application is thus brought

under ss(a) of the definition of "serious injury" contained in s134AB(37) of the

Act, and leave is sought in respect of pain and suffering only.

Ms Kidane was the only witness called to give evidence and be cross-

examined. ln addition, her two affidavits, medical and radiological reports and

ciinical notes were tendered in evidence. I shall not refer to all of that material

in the course of this judgment, but rather those parts of the evidence and reports

which appear to me to be most relevant and which I have relied upon in coming

to the conclusions referred to later in this judgment. The statutory scheme set

forth in the Act which proscribes and regulates applications of this nature, and

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I JUDGMENTKidane v Victorian WorkCover AuthorityVCC:AS

the principal authorities of the Court of Appeal, are well known, and it is

unnecessary for me to revisit the various relevant sections and those

authorities.

Relevant background

o Ms Kidane was born in Eritrea, Africa in 1964. She experienced conflict and

war in that country. ln the 1980s, she moved to the Sudan and migrated to

Australia in 1990. Shewas married in 1989 and hastwo adultchildren. Her

husband died in a motor vehicle accident in 2003.

7 When she came to Australia, she started work as a kitchenhand, before working

for a community homecare group called Omni-Care. Over a number of months

in about 2000, she obtained a Certificate lll in Community Aged Care.

Eventually, she obtained work with Doutta Galla, working at an aged-care

facility in 2004. She worked 28 hours a week over four days. Sometimes she

worked up to 36 hours a week. There were sixty or so residents and the work

was shared amongst four carers. Her work included assisting residents of the

facility with personal hygiene, helping make the beds, toileting, helping them

dress and shower, cleaning their rooms and serving meals. Most of the

residents were reasonably independent, but Some required higher care, and

had to be moved using a lifting machine. She enjoyed the work and felt she

was making a contribution to the community.

Ms Kidane was distressed after the death of her husband, and received some

psychologicaltreatment, although there were no significant ongoing symptoms.

ln 2010, Ms Kidane was treated for bowel cancer with laser surgery, which was

successful.

Ms Kidane was otherwise well and, in particular, had no pain nor difficulties with

her right wrist or shoulder. She was able to carry out all her domestic tasks and

enjoyed a social life.

JUDGMENTKidane v Victorian WorkCover Authority

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o

2VCC:AS

10

2

The injury and its consequences

11 On 11 March 2006, Ms Kidane was assisting a patient who was affected by

dernentia. He grabbed her by" the i'ight hand and puiied and rw-isted it. She

struggled for some time and was finally able to break free. She realised she

had done some damage to her right arm. She went to see her general

practitioner, Dr Navani, on 12 March 2006, complaining of pain in her right hand,

wrist and shoulder. He initially treated her with anti-inflammatory medication

and rest. She was off work until 15 May 2006. An x-ray of the right wrist

suggested "widening of scapho-lunate space".

12 ln May 2006, Dr Navani referred Ms Kidane to a hand surgeon, Mr Richard

Maxwell. He treated her from May 2006 until March 2OO7.1 She complained to

him of pain in the wrist and shoulder, and also pain in the elbow. He injected

the elbow with cortisone. He arranged an MRI scan of the right wrist, which

showed disruption of the volar distal radio-ulnar ligament, with widening of the

joint space. On 20 January 2006, he operated to stabilise the joint using K-wire

fixation. She was in plaster for six weeks after the surgery.

13 According to a letter frorn Mr Maxwell of March 2007, the surgery was

successful, as there was good anatomicalalignment in the wrist, with good wrist

flexion, but some limitation in extension and with gradually improving grip

strength. He discharged Ms Kidane back to the care of Dr Navani in March

2007.2

14 Symptoms continued in the right shoulder, and an MRI scan of October 2006

showed:

... signs of supraspinatus tendinosis with a partial thickness in-substancetea¡' involving the antei'ior inseriing fibres,"3

15 Dr Navani referred Ms Kidane to an orthopaedic surgeon, Associate Professor

Martin Richardson, whom she saw in December 2006. He diagnosed her as

Plaintiff s Court Book ('PCB') 42(a) - (e)ÐLtr- Á3(o\

PCB 46

JUDGMENTKidane v Victorian WorkCover Authority

3VCC:AS

16

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suffering frozen shoulder syndrome and suggested she undertake

hydrodilatation. This was carried out on I January 2007 ' According to his

report, she was much improved after the procedure'a She subsequently

complained to Professor Richardson of ongoing shoulder pain, which he

described as "ongoing bursitic symptoms and evidence of Some

supraspinatus tendonosis".s He injected the shoulder with local anaesthetic

and noted she was doing light duties at work'

Professor Richardson reviewed Ms Kidane again in April 2007 and she said her

shoulder symptoms had significantly improved, although her neck was causing

symptoms. An MRI scan of the neck showed some degenerative disease, in

particular, at C5-6 and C6-7.

On his last review in August 2007, Ms Kidane told Professor Richardson the

right shoulder symptoms continued to be good, with some ongoing discomfort.

He recommended acupuncture. She was seeing a physiotherapist, Mr Rob

Hunter. She had not returned to Professor Richardson for treatment since.

Ms Kidane has remained under the care of Dr Navani, whom she sees presently

once a month or so, and he provides WorkCover certificates. She is not seeing

any specialist. She cannot remember when she last had physiotherapy.

lnitially, Ms Kidane returned to work on 15 May 2006 on modified duties. She

was away from work for a considerable period after the surgery to the right wrist

in July 2006. She returned to work in 2006 and remained working

approximately the same hours as before injury until her employment was

terminated in October 2008. Over that period, she did lighter duties, including

changing bed linen, helping residents with personal hygiene and generally

supervising them. She was in charge of five residents (significantly less than

before). She says she was never able to return to her pre-injury duties. ln

JUDGMENTKidane v Victorian WorkCover Authority

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5

PCB 41

PCB 41

4VCC:AS

20

21

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evidence, she said she would still be working if this job had remained available

Ms Kidane did a business cou!'se oì,rer a numbe¡' of rnonths and obtained a

Certificate lll in Business Administration - Medical. She thought this might lead

to some employment as a medical receptionist. She has applied for jobs but

has only obtained one interview. She thinks she did not get that job because

of her injury. Presently, she works as a volunteer at the Sunshine Hospital three

hours per week. She makes tea and coffee and talks to patients at the hospital.

She also visits some members of the Eritrean community. She has provided

her résumé to the local Council and is presently being assessed for voluntary

work. She is uncertain what that voluntary work will be.

Prior to her injury, Ms Kidane went to a local gymnasium for fitness and exercise

classes. Since the injury, she has maintained her membership. She still goes

to dance classes several times per week. However, she says that they are not

as energetic as the classes she enjoyed before. She has to pace herself, and

exereises within the iimiiations of her injury. She enjoys going to the gym, as it

gets her out ofthe house.

Ms Kidane claims a range of consequences as a result of the injury of March

2006:

She has constant pain in her right wrist and shoulder, in particular, the

shoulder. she is restricted in the movements of her right arm, and there

is a loss of strength.

a

a It affects her sleep. The pain wakes her and she sleeps on her back and

left side.

She goes to see her general practitioner once a month or so about her

symptoms. She takes two Panadol, two to three times a week, for pain.

Recently, she has been prescribed Mobie, and takes one tablet, three or

four times a week, She uses a heat pack on her riqht shoulder.

JUDGMENTKidane v Victorian WorkCover Authority

JVCC:AS

a

. She has constant pain in the shoulder but regularly has episodes where

the pain becomes severe.

. She is able to drive a car, but driving is restricted to about 20 minutes.

. She is restricted, in particular, in the heavier domestic duties at home,

which are now done by her children. She shops regularly, but for small

items, which she mostly carries using her left arm. She needs the

assistance of her children for a major shop.

. Significantly for her, she has lost the ability to work as a carer in the way

she did before injury. The work provided her with satisfaction and she felt

she was giving to the community. This is a big loss for her.

Medical opinions

23 According to the various reports of Dr Navani, Ms Kidane suffers post-operative

wrist pain with capsulitis in the right shoulder and degenerative disease in the

neck. He also said she has a secondary Adjustment Disorder. He said she has

the capacity for alternative duties, although he said she found typing and

keyboard activities increased her pain. He referred her to a psychologist,

Sharon Turner, in 2011, to deal with her ongoing pain issues. He said:

"Her functional capacity is restricted and she manages herself within herfunctional limitations.

Yodit is capable of part time work up to 28 hours per week in alternativecapacity with restriction to overhead activities and lifting weight over 2

kilograms."6

Ms Kidane was examined by Mr Robin Williams, orthopaedic surgeon, in May

2008. The report is now old and of limited assistance. He thought her neck

and shoulder symptoms were aggravated by having a plaster cast on the wrist

for a long time. He thought her soft-tissue injuries had healed but that she had

a Chronic Pain Syndrome affecting the right side of her neck and shoulder. He

24

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6 JUDGMENTKidane v Victorian WorkGover AuthorityVCC:AS

PCB 39-40

25

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said she was not fit for her pre-injury duties,

Ms Kidane was examined by Mr Rodney Simm, ofthopaedic surgeon, in

February 2015. He provided an extensive report, tracing her history and

treatment. She told Mr Simm that the symptoms in her wrist and shoulder had

not changed for some years. The pain was over the top of the right shoulder

without radiation. She said she felt quite weak in the right hand and arm and

there was intermittent numbness in the fingers. She said she could not carry

shopping, sweep or vacuum and was now doing many things left handed. She

was restricted in other heavier domestic duties. Neurological examination

showed no signs of radiculopathy. He diagnosed the following as a result of

the incident of March 2006:

A soft tissue injury to the right wrist, with MRI scan evidence ofdisruption of the distal radio-ulnar joint. The disruption was treatedsurgically with K-wire fixation. The x-rays I viewed showed that thedistal radio-ulnar joint disruption was corrected and there were noclinical signs of persistent radio-ulnar disruption. The surgeryproved to be ineffective. She has chronic residual symptoms,without significant restriction of wrist movement following thesurgically treated injury.

A soft tissue injury to the right shoulder. She was possibfy renderedprone to an injury to the right shoulder from pre-existingdegenerative rotator cuff pathology, which included supraspinatustendinosis and a partial thickness tear. lt seems from the filematerial that as a result of the soft tissue injury to the right shouldershe developed a frozen shoulder syndrome. She has recoveredfully from the frozen shoulder syndrome. Clinical examination doesnot currently reveal any clinical signs of a specific pathologicalcondition of the right shoulder. Therefore she has residual rightshoulder pain following a post-traumatic frozen shoulder syndromein the present of MR! scan changes of eai'ly si;praspinatusdegenerative pathology."T

Mr Simm observed some features of chronic pain. He said her movements

were more aetive when viewed spontaneously, as opposed tc ,¡crmal

examination. He said she showed marked evidence of pain when examined

and had developed a -"... chronic adverse pain response in association with the soft tissueinjuries to the right shoulder and right wrist. There may be an associatedlongterm emotional disturbance, which would need to be assessed by a

JUDGMENTKidane v Victorian WorkCover Authority

I

7VCC:AS

PCB 54

II10

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Psychiatrist."s

Mr Simm said she would not be able to perform physically demanding activities

using her right arm and would not be able to return to her unrestricted work in

aged care. He said she was now confined to light work with the limited use of

her right arm and could not carry heavy weights. He said it would be difficult

for her to find suitable light employment. He concluded:

"She has an entrenched pattern of chronic pain, which is unlikely to changein the foreseeable future. Future medicaltreatment will be limited to self-regulation of activities and over-the-counter analgesic medication. lt

seéms that her symptoms are controlled to some extent by a regularexercise programme and I expect she will continue to go to the swimmingpooland gymnasium."e

28 Ms Kidane was examined by Dr Nigel Strauss, psychiatrist, at the request of

her solicitors in April this year. She told him that she was frustrated and upset

about not being able to work, and became depressed. He did not think that her

time in war-torn Eritrea significantly contributed to her psychiatric state, nor the

loss of her husband in the car accident. He said she suffered a Chronic

Adjustment Disorder with Mixed Anxiety and Depressed Mood and some

features of traumatisation because of the incident. He observed:

"l also believe that her circumstances and her emotional upset are being

29 The Victorian WorkQover Authority arranged for Ms Kidane to be examined by

Dr David Weissman, psychiatrist, in May 2009. His report is rather old and of

limited assistance. He diagnosed her as probably suffering a very Mild

Adjustment Disorderwith Depressed and Anxious Mood, butwas not convinced

she had developed a Chronic Pain Disorder, although that was possible.

30 Associate ProfessorAnthony Buzzard, general surgeon, saw the plaintiff in May

PCB 54PCB 55PCB 63

JUDGMENTKidane v Victorian WorkOover Authority

8VCC:AS

11

2012, and again in March 2015. On each occasion, she complained to him of

pain in the right shoulder region which was variable, although worsening, and

pain in the wrist with associated pins and needles, He accepted that she had

suffered a ligament injury to the right wrist in the incident but he could not

explain her ongoing wrist problems as being related to it. He also accepted she

suffered a shoulder injury to the rotator cuff area and that her ongoing

symptoms in that area were related to that work injury. He thought that the right

wrist symptoms did not have a physical explanation.

31 Dr Paul Kornan, psychiatrist, examined Ms Kidane in May 2012. He said she

suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He

noted she was upset at losing her job and not being able to do her normal

activities without discomfort.

32 Finally, Ms Kidane was examined by Dr Mary Wyatt, occupational physician, in

April 2015. She received a history of persistent pain in the right neck, right

shouider ai'rcl righi ai.m, anci that there haci been iimiteci improvement in the

condition over the years. She complained of disturbed sleep. Dr Wyatt said:

"Ms Kidane sustained a disruption of the distal radioulnar joint which hasbeen treated surgically. I note reports that there has been a goodoutcome from treatment, although at this review Ms Kidane advised shehad persistent right wrist pain, and advised residual right shoulder girdlepain.

No wasting was noted in the right forearm, suggesting regular use of thedominant arm.

There is normal range of motion at the right shoulder, although there istenderness in the shoulder girdle muscles.

I think it is reasonable to accept there are residual mild shoulderdysfunction symptoms as a consequence of the injury of 2006. There isno objective evidence of a significant continued problem at the rightshoulder, the right wrist or the neck. lt should be noted thatmusculoskeletal complaints are common in the community, with over halfthe population experienced long term musculoskeletal soreness. I wouldput Ms Kidane in that group."11

33 Dr Wyatt said Ms Kidane was generally active, although she thought it was

JUDGMENTKidane v Victorian WorkCover Authority

9VCC:AS

DCB 57

12

plausible that there would be difficulty with more intense and demanding

activities over long periods. She said it was likely she would continue to suffer

the symptoms into the foreseeable future. She also thought it was plausible

that Ms Kidane would have ditficulty returning to her usual duties. She said

non-physical factors were now playing a substantive role. Even with the

continued pain, she said it should not be causing significant limitations in her

day-to-day activities and work capacity.

Medical Panel Reasons for OPinion

34 Ms Forbes, for the defendant, relying on the dicta of Ashley JA in Grech v Orica

Australia Pty Ltd & Anor,lz sought to tender the Medical Panel Reasons for

Opinion dated 25 September 2013 as an exhibit. ln Grech, Ashley, JA identified

two bases upon which the reasons for opinion could be admitted. Ms Forbes

submitted that the first basis applied, in essence, that the reasons may be

admitted if they were part of the material medical examiners relied upon in

reaching their conclusions. Mr McGarvie objected to the tender on the basis

that, even if admissible (which was not conceded), the reasons are prejudiciat

and ought to be excluded under s135 of lhe Evidence Act 2008.

35 I ultimately accepted Ms Forbes' submission and allowed the Reasons to be

tendered. l, however, consider the Reasons to be admissible in a limited

manner; that is, insofar as they show that a medical examiner has considered

and relied upon those Reasons. The Reasons are not admitted for the medical

opinion they express.

36 Having reviewed the Reasons, I do not consider that that they advance the

matter in any significant waY.

Conclusions

j7 Video surveillance film of Ms Kidane was taken on 21April, 5 and 6 May 2015.

It shows her engaged in various activities, including shopping, going to the

gymnasium, driving a car and using public transport. ln submissions, Ms

JUDGMENTKidane v Victorian Work0over AuthorityVCC:AS

(2006) 14 VR 602

10

Forbes said the utility of the film was not so much an attack on Ms Kidane's

credit, but rather a snapshot of her current life, showing her actively engaged in

a range of day-to-day activities with little apparent restriction.

38 I do not see the surveillance film as of great significance either as affecting the

plaintiff's credit, or as disclosing a particularly active lifestyle different from what

she said in her affidavit and the histories given to the doctors. On one occasion,

she lifted and carried a number of blue plastic shopping bags containing fruit

and vegetables using her right arm, and then pushed closed her car door. Also,

there was an occasion where she used her right arm to lift a bag of oranges

across a check-out counter in the supermarket. I accept these activities are

somewhat inconsistent with her injury and complaints of pain and restriction,

but they represent only a small snapshot in time, and could adequately be

explained by her pain and rest¡'íction on that day being modest.

39 It is clear Ms Kidane suffered injuries to her right wrist and shoulder in the work

incident of î'ä a¡-ch 20û6. The injui.y to her wrist requireci surgery to the raciiouinar

joint to fix it in good alignment. Technically, the surgery was successful,

although i accept the plaintiff has ongoing symptoms in the wrist, particularly

pain and some loss of movement and strength.

40 I further accept she suffered an injury to her right shoulder in the incident. I

accept Mr Simm's opinion that it was likely she had some pre-existinq, but

asylntlo*atic, rotator cuff patholcgy. I accept the diagnosis of many of the

practitioners of supraspinatus tendinosis with a partial-thickness tear of the

shoulder. Further, and probably as a result of having her right wrist in plaster

over a considerable period after surgery, she developed a frozen shoulder.

Again, technically, the hydrodilatation procedure performed by Professor

Richardson in 2007 was successful, but again, she has been left with residual

symptoms in the shoulder with some limitation of movement and strength.

41 I accept the opinions of Dr Navani, the general practitioner. He has treated the

JUDGMENTKidane v Victorian WorkCover AuthorityVCC:AS

1i

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plaintiff over a considerable period and I accept his assessment that she suffers

ongoing pain, that her functional capacity is restricted and that she is capable

of returning to part{ime work to the same hours as before injury, albeit with

restrictions.

Of alt the consultant medical opinions, I was most impressed by the opinion of

Mr Simm. His report is comprehensive and his assessment thorough. He

accepted she has ongoing residual symptoms in the wrist and the shoulder. He

accepted those symptoms would prevent her from undertaking physically

demanding activities and she would never be able to go back to her unrestricted

work in aged-care. Effectively, he said it would be difficult for her to obtain

suitable light work. I further accept his opinion that she has some features of a

Chronic Pain Syndrome. The context of his report makes it clear that he is

referring to a psychological, and not a physical or organic syndrome. ln fact,

many of the practitioners draw the same conclusion.

I raised with Ms Forbes whether there was an issue as to whether there could

be an aggregation of the consequences of the injuries to the right wrist on the

one hand, and the right shoulder on the other. Quite sensibly, Ms Forbes

accepted this was not a case where a separate assessment of the

consequences of the right wrist and the right shoulder had to be made. She

accepted that in large part, the frozen shoulder syndrome arose as a

consequence of the right wrist being in plaster. Thus, to a significant extent,

the right shoulder problem was a consequence of the right wrist problem. ln all

the circumstances, it is appropriate to consider the right arm as a whole,

including the consequences which arise from both the wrist and the shoulder.

However, the authorities make it clear that the consequences arising from a

non-organic injury must be disentangled and set aside from the consequences

arising from a physical injury. I accept the assessment of Mr Simm that the

plaintiff does present with some feature of a Chronic Pain Syndrome. Dr

Strauss explained this well when he said that because of the injury and the

JUDGMENTKidane v Victorian WorkCover Authority

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VCC:AS12

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[2013] VSCA 201Meadows (supra) at paragraphs 21-25

emotional upset it brought, this was translated into some form of physical pain.

He said she was not deliberately exaggerating her presentation and he found,

as do l, her to be a genuine person.

It is never easy in cases such as this to precisely determine the extent to which

a worker's pain and restriction is, on the one hand, physically based, and on the

other, of psychological origin. Medically, the issue cannot be the subject of

precise and accurate assessment. ln Meadows v Lichmore Pty Ltd,ls the Court

of Appeal accepted that a two-step approach was appropriate. lf it could be

said that the consequences of which a worker complains have a substantia!

organic basis and that those consequences achieve the statutory test, then an

application was likely to succeed. lf that first step could not be affirmatively

accepted, then the next step was to disentangle and set aside those

ccnsequences which had a non-organic basis.la

ln the present application, I am satisfied that Ms Kidane has proved that while

the¡'e is some aspect of i¡ei- preseniaiion which is a psychoiogicaiiy-baseci

Chronic Pain Syndrome, substantially her complaints have an organic basis.

That is evident from the pathology of the wrist injury, reeuiring surgical

correction, and the MRI scan of the shouldershowing a tearwith tendinosis of

the rotator cuff, requiring invasive treatment. That accepted, there is no need to

further disentangle.

I accept the er¡idence of the plaintiff as tc the consequences she si¡f¡eied as a

result of the incident. ln particular, she suffers ongoing pain in her right arm

which restricts her in the heavier domestic and workplace activities and requires

some analgesic medication. lt should F-re sard that her present treatment is

modest but that is more to do with the fact that there is little further that can be

done for her. I accept that she suffers some disturbance of sleep and a

restriction in a range of domestic tasks.

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JUDGMENTKidane v Victorian WorkCover AuthorityVCC:AS

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Of most significance in my view is the loss to her of her work as a carer. I

accept the opinions of Mr Simm and Dr Navani that she would be unable to

return to this work. She has made a fair effort to get back to work, including the

voluntary work at Sunshine Hospital and registering with the local council. But

to someone who enjoyed the unrestricted work she was doing and felt she was

contributing to the community, this is indeed a significant loss to her.

Persuasively, Ms Forbes argued that, to Some extent, the loss to Ms Kidane of

the previous employment was compensated by her work at the Sunshine

Hospital, her involvement in the Eritrean community and her time at the local

gymnasium which provided a physical and social outlet. Further, she pointed

to the fact that Ms Kidane accepted in evidence that had she not been

dismissed from her employment in 2008, she would probably still be there

today. She said Ms Kidane was actively looking for employment, and there were

good prospects she would obtain work of a lighter nature and similar to that

which she had done before working for Omni-Care.

I do not accept the activities referred to provide any real substitute for Ms

Kidane's former employment. I accept there is a real gap in her life, because

she is now unable to work in the area she previously enjoyed, with the

satisfaction to be gained from assisting others in the community. There is no

evidence as to the avaitability of lighter work, and I note the opinion of Mr Simm

that it would be difficult for her to find suitable light employment.

The loss of employment is relevant in the assessment of pain and suffering. ln

Peak Engineering & Anor v McKenzie,l5 the Court said:

"ln summary, then, Mr McKenzie was entitled to rely on, and the judge

was bound to take into account, any narrowing in the range ofemployment options open to Mr McKenzie after the hand injury, but only

to the extent that this narrowing was probative of:

. the nature of Mr McKenzie's experience of pain as such; or

. Mr McKenzie's loss of enjoyment of life, relevantly because of his

JUDGMENTKidane v Victorian WorkCover Authority

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120141vscA 67

14

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Eã

inability to engage in an occupation which he had previouslyenjoyed."16

I accept, in Ms Kidane's case, that the injury and ¡'estrictions it brings do nai'i'ow

the range of employment open to her. Ms Forbes argued that, like in an

assessment for economic loss, it is not to the point whether work is available,

rather it is a worker's capacity to undertake employment that is relevant. I am

not persuaded that argument is correct when one looks at the loss occasioned

by the narrowing of the range of employment in a pain and suffering context.

Beai'ing allthese matte¡'s in mind, i am satisfied that the eensequences achieve

the "very considerable" test the legislation requires.

54 I shall make consequent orders

Peak Engineering & Anor v McKenzie (supra) at paragraph 45

15 JUDGMENTKidane v Victorian WorkCover Authority

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VCC:AS