Aliti v Fletcher Insulation (Vic) P/L
[2012] VCC 1611
•2 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-01200
| ADZI ALITI | Plaintiff |
| v | |
| FLETCHER INSULATION (VIC) PTY LTD | Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 to 30 May 2012 and 12 to 13 June 2012 | |
DATE OF JUDGMENT: | 2 November 2012 | |
CASE MAY BE CITED AS: | Aliti v Fletcher Insulation (Vic) P/L | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1611 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation – Accident Compensation Act 1985, s134AB – claim to recover damages for pain and suffering and loss of earning capacity – permanent impairment to the plaintiff’s right shoulder and/or cervical spine – admissibility of surveillance material not disclosed under s134AB(8) of the Act – stripping away of psychological consequences of the plaintiff injuries – whether remaining injury is a “serious injury” – whether the pain and suffering consequences are more than significant or marked or at least “very considerable” – whether the accident resulted in a loss of earning capacity of 40% or more.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie S.C. with Ms Ms M. Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr S. Smith | Wisewould Mahony |
HER HONOUR:
Background matters
1 The various background matters to which the plaintiff deposed in his only affidavit sworn on 22 October 2010 are summarised in the following paragraphs.[1]
[1]Exhibit P1, Plaintiff’s Court Book, 14-20
2 The plaintiff is 61 years of age. He is married with 5 adult children.
3 The plaintiff was raised, educated to grade 4 level and worked on the family farm in Macedonia before migrating to Australia at age 18. His employment in Australia has been as a factory hand.
4 For 27 years, from 1981 until made redundant in December 2008, the plaintiff was employed by the defendant (or its predecessors). Whilst the position held by the plaintiff was not identified in the affidavit or oral evidence, at various times, the plaintiff informed doctors that he was employed as a machine operator[2] or as a plant operator.[3]
[2]See for example the reports of rheumatologist, Dr Patrick, general practitioner, Dr Di Carlo and certificate of capacity dated 5 September 2007, Exhibit P1, 25 and 30 and Exhibit D1, 88
[3]See for example the reports of psychiatrist, Dr Gill, occupational physician, Dr Baynes and orthopaedic surgeon, Mr Dunin, Exhibit D1, 22, 31 and 36
5 In June 1998 the plaintiff suffered a work-related injury to his left shoulder which led to several months off work, after which, despite ongoing symptoms and disability, he returned to full-time modified duties.
6 Apparently, the plaintiff experienced occasional neck pain which he deposed “was of no great consequence at that time”. [4]
[4]Exhibit P1, 15[6]
7 Initially, the plaintiff declined a recommendation for surgery.[5] However, the plaintiff recalled that, after MRI scans were obtained in 2002, orthopaedic surgeon, Mr Richardson, advised that he did not require surgery. In any event, it appears that the plaintiff continued to receive conservative treatment, he underwent further MRI investigation and, in 2004, two injections were administered.
[5]See Dr Di Carlo’s reports, Ibid, 30 and 32
8 The plaintiff described an incident on 5 December 2006 in which he sustained an injury to his right shoulder and cervical spine. This incident is set out in paragraph 9 of his affidavit where the plaintiff deposed as follows: [6]
“8. On 5 December 2008, I was doing my work for the Defendant, which by that stage was called Fletcher Insulation (Vic) P/L. I had to pull a trolley loaded with insulation, so that it could be hooked up to a fork lift. The trolley had small wheels on it and the wheels often jammed and made it difficult to move the trolley. I had to apply a lot of force to try and move the trolley into position, so that it could be hooked up to the fork lift. Whilst I was pulling and straining on the handle of the trolley to get it into position, I developed pain in my right shoulder and neck” (‘the incident’).
[6]Ibid, 16
9 The plaintiff deposed that, after 5 December 2006, he continued working in further modified duties until he was made redundant in December 2008. The plaintiff has not worked since that time.
The application
10 By originating motion filed on 21 March 2011, the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (the ‘Act’) to institute common law proceedings to recover pain and suffering and pecuniary loss damages for injury suffered to his neck and/or right shoulder, arising out of or in the course of his employment and, in particular, as a result of the incident on 5 December 2006.[7]
[7]TN 12-13
11 The application is brought under paragraph (a) of the definition of serious injury, namely, serious permanent impairment or loss of function of the plaintiff’s neck and/or right shoulder.
12 At hearing, having initially submitted that either injury to the neck or to the right shoulder were responsible for the consequences alleged,[8] Mr McGarvie S.C. representing the plaintiff, subsequently relied on two serious injuries: neck injury (aggravation of cervical spondylosis with possible radiculopathy[9]) and right shoulder injury (partial tear of the supraspinatus part of the rotator cuff and subsequent capsulitits[10]) each of which, he submitted independently, permanently incapacitated the plaintiff for even modified duties and had led to ongoing pain and disability.[11]
[8]TN 3
[9]Report dated 12 January 2012 by consultant neurosurgeon, Assoc Professor Bittar, Exhibit P1, 46-50
[10]Report dated 30 November 2011by orthopaedic surgeon, Mr Fogarty, Exhibit P1, 34-38
[11]TN 16-17 and 28
The statutory requirements
13 In accordance with the Act and case law interpreting the relevant provisions, the following considerations apply to s134AB.
14 First, the plaintiff must prove that he has suffered a compensable injury arising out of or in the course of his employment with the defendant on or after 20 October 1999.
15 The plaintiff may recover damages in respect of all of the components of injury which is compensable pursuant to s82(1) of the Act if the injury results in consequential impairment of the kind defined as serious injury by the Act.[12]
[12]GeorgpoulosvSilcoforts Painting Pty Ltd & Ors [2012] VSCA 179
16 Under subsection 37(a) of s 134AB of the Act, to establish “serious injury”, the plaintiff is required to prove he has suffered a “permanent serious impairment or loss of a body function,” which is to be determined on the balance of probabilities.
17 “Permanent” refers to impairment that is, “likely to last for the foreseeable future”.[13]
[13]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33].
18 Sub-section 38(c) provides that pain and suffering and loss of earning capacity consequences of the injury must, when judged by comparison with other cases in the range of possible impairments or loss of a body function, be fairly described as being more than “significant” or “marked”, and as being at least “very considerable”.
19 The plaintiff must also discharge the burden imposed by section 134AB(38)(e) which arises pursuant to (e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
20 It was common ground that for the purpose of this provision, the plaintiff's without injuries earnings figure, namely the sum that most fairly reflected his earning capacity had the injury not occurred, was $75,039 gross per annum, earned by the plaintiff in the financial year ending 30 June 2008.[14] Based on this sum the plaintiff was required to establish that at the date of hearing he has a permanent loss of earning capacity productive of a financial loss of $45,023.40 gross per annum or more.
[14]TN 32
21 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for any employment which if exercised would result in him earning more than 60% of his pre-injury earnings determined in accordance with ss134AB(38)(f) of the Act.
22 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment (s134AB(19)(b)).
23 As from 1 July 2010, s5(1) the Act defines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
24 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, he will be entitled to leave to institute proceedings for both these damages and pain and suffering damages without further determination of this aspect of the application.
25 Sub-section 134AB(38)(h) provides that any psychological or psychiatric consequences of the injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
The areas of dispute
26 Mr Smith, on behalf of the defendant, provided a Statement of Issues.[15] The issues for consideration from the defendant’s perspective were:[16]
[15]TN 30
[16]TN 28-31 and TN 250
“1. The identification and stripping away of the psychological or psychiatric consequences of the plaintiff’s physical injuries as required by s134AB(38)(h)”.
The defendant relied on both treating and specialist medical evidence in which the doctors noted various pain syndromes, either myofascial pain syndrome or chronic pain syndrome, which the defendant submitted were psychologically-based conditions. It followed, so the defendant submitted, that the Court must determine whether the evidence as a whole sufficiently identified the physical consequences of work-related injury to each of the impaired body functions on which the plaintiff relied.[17]
[17]See JayatilakevToyota Motor CorporationAustralia Ltd [2008] VSCA 167 [17]-[22]
“2. Identification of the consequences for the plaintiff of the alleged injury to:
a) Cervical spine;
b) Injury to the right shoulder.
Generally and having regard to the consequences of a pre-existing injury to the left shoulder”.
In this regard the defendant submitted that the plaintiff had failed to separately identify the consequences of impairment of each body function and separate these from a pre-existing level of reduced functioning and disability caused by the unrelated impairment of his left shoulder.
“3. Whether the remaining injury constitutes serious injury.
4. Whether the plaintiff meets the threshold test for loss of earning capacity.”
27 It was common ground that the plaintiff’s physical work capacity was already compromised by the pre-existing left shoulder problem which, no doubt, placed the plaintiff in a more vulnerable position should his capacity to perform physical work be further compromised, as it was by work-related injury to and impairment of another body function. Nevertheless, as the circumstances in which the incident occurred show, pre-injury the plaintiff had continued to perform duties involving physically demanding work, such as pushing laden trolleys.
28 As my discussion of the evidence reveals below, I was satisfied (on the balance of probabilities) that the aggravation injury to the plaintiff’s cervical spine was unresolved and that he probably continued to suffer from injury-related impairment of his right shoulder.
29 Having particular regard to the underlying pathology reducing the functioning of the plaintiff’s cervical spine, I was further satisfied that one consequence of this impairment is that the plaintiff probably has a loss of earning capacity productive of a financial loss of $45,023.40 gross per annum or more for the foreseeable future. I reached this conclusion notwithstanding evidence that the symptoms and the level of incapacity of which the plaintiff complained was probably disproportionate to the physical impairment of his neck and, notwithstanding my concerns about some aspects of the plaintiff’s evidence. This finding entitles the plaintiff to leave in respect to work-related impairment of his cervical spine without further analysis of the nature and extent of any of the pain and suffering consequences of physical impairment of the cervical spine.
30 I found ascertaining the nature and the extent of the physical consequences of the likely right shoulder injury more problematic, both because of the lesser pathology revealed and because of the plaintiff’s exaggerated presentation in Court and during medical examination.
31 However, in my view, despite exaggeration of his level of incapacity, conscious or otherwise, the medical restrictions on the plaintiff’s functional capacity in the workplace following injury to his cervical spine, when combined with factors such as the medication taken, the plaintiff's age, education, skills and occupational experience and his limited literacy skills in English, likely permanently precluded a return to his pre-injury duties and retraining or rehabilitation for alternative employment.
The Evidence Called and Tendered
32 The plaintiff deposed to speaking English, Albanian and Macedonian and reading a little English but not being able to write in English.[18] The plaintiff gave evidence and was cross-examined at length. He was assisted during the four-day hearing by interpreters. However, whilst at times his answers were non-responsive and, where given directly, tended to be delivered too quickly,[19] I was satisfied that the plaintiff demonstrated a good understanding of spoken English. That the plaintiff had been medically examined from time to time, without an interpreter present, reinforced this view.
[18]Exhibit P1, 15[3]
[19]As for example during cross-examination at TN 56
33 The plaintiff tendered extracts from his Court Book[20] consisting of his only affidavit, medical reports from treating doctors and specialists, an employment assessment report, dated 14 February 2012, prepared by Human Resources Consultant, Ms Angel from Flexi Personnel Pty Ltd and a vocational assessment report, dated 20 February 2012, prepared by psychologist, Ms Green from Katrina Green Consulting Pty Ltd.
[20]Ibid
34 The plaintiff also relied on and tendered the report, dated 4 March 2011, submitted by the defendant’s psychiatrist, Dr Gill.[21] He diagnosed a mild anxiety and depressive condition secondary to the plaintiff’s work-related injury, which Dr Gill considered was not of sufficient severity to warrant a clinical diagnosis or to preclude the plaintiff from working.[22] The plaintiff submitted that this evidence indicated that it was unlikely that functional or psychological factors restricted his return to work. The psychiatrist's evidence did not, however, preclude the likelihood that non-organic factors had impacted on the plaintiff’s presentation both in Court and during other medical examination.
[21]Exhibit P2, pages 21-30 of the Defendant’s Court Book
[22]Ibid, 26-27
35 The defendant tendered extracts from its Court Book[23] consisting of specialist reports, a letter dated 22 January 2002 from Ergonomic & Health Services, a bundle of WorkCover Certificates of Capacity, Pay Reports from 4 July 1999 to 24 December 2008 (added by consent to the Court Book) and the surveillance film obtained on 20 and 24 January 2011.[24]
[23]Exhibit D1
[24]Exhibit D2
36 At hearing, the defendant admitted that surveillance was also undertaken on 23 January 2011 from 7:30 am to 1:30 pm, on 8 March 2012 from 6 am to 12 pm, on 10 March 2012 from 7 am to 12 pm and on 12 March 2012 from 12:45 pm to 2:45 pm.[25] However, no further film was obtained during the periods mentioned. I was invited by the plaintiff to infer that there had been no activity worth filming.[26] In all the circumstances, without further evidence, I was not satisfied that such an inference could be reasonably drawn. Self evidently, there was no further film despite fairly long periods of surveillance.
[25]TN 211
[26]TN 257-258
37 The plaintiff's treating rheumatologist, Dr Patrick, was called and he was cross-examined at length.
Credit issues
38 It is convenient to deal with the credit issues on which the defendant also relied, when I summarise various aspects of the plaintiff’s evidence shortly. At this juncture, it is sufficient to note that, quite apart from any concern I had about the reliability of the plaintiff’s recall of events occurring over many years, I formed the view that non-organic factors had likely affected the plaintiff’s presentation both in Court and during medical examinations. Moreover, leaving to one side any obvious deficiencies in his English language skills, the plaintiff was not a straightforward witness and, at times, I had reservations about his candour.
Admissibility of the surveillance film
39 The surveillance film was shown on the first day of the hearing during the course of cross-examination without objection. However, at the conclusion of the film and before further cross-examination, the plaintiff’s counsel objected to the admissibility of the film because, he submitted, the film had not been disclosed in accordance with the disclosure requirements of s134AB(8) of the Act. Section 134AB (7), (8) and (11) of the Act relevantly provide as follows:
“(7) The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section 134AF) of receiving the application, advise the worker in writing-
(a) that the worker is deemed to have a serious injury; or
(b) if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under subsection (16)(a).
(8) The advice referred to in subsection (7)(a) must be accompanied by-
(a) a copy of all medical reports; and
(b) affidavits attesting to such other material
existing when the advice is given and of which the employer, Authority or self-insurer or the legal representative of any of them is aware and on which they intend to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings.
……..
11) In proceedings in accordance with this section, a medical report or other material is inadmissible in evidence-
(a) on behalf of the Authority or self-insurer if-
(i) it was in existence, and the employer, Authority or self-insurer, or the legal representative or any of them, was aware of it, before the date by which the advice of the Authority or self-insurer is required to be given under subsections (7) and (8); and
(ii) it had not been disclosed to the worker in accordance with subsections (7) and (8); or
(b) on behalf of the worker if-
(i) it was in existence, and the worker or the worker's legal representative was aware of it, before the expiration of 28 days after receiving the advice under subsections (7) and (8); and
(ii) it had not been disclosed to the other party in accordance with subsection (5) or (10).”
40 I heard oral argument directed in the main to the proper application of the decision of the Court of Appeal in Pravidur v Scental Pacific Pty Ltd.[27] At the request of the plaintiff, the proceeding was adjourned overnight to allow the parties to obtain instructions.
[27](2010) 28 VR 60; [2010] VSCA 144.
41 The next day, I again heard lengthy oral argument directed particularly to the application of Pravidur. However, having read this decision overnight and notwithstanding Mr McGarvie’s submission that this was obiter dicta,[28] I was satisfied that, based on their construction of particularly subsections (7), (8) and (11) of s134AB, the decision (ratio decidendi)[29] of the majority of the Court established that the disclosure requirement did not arise other than when a worker had been advised in writing pursuant to s134AB(7)(a) that he or she was deemed to have a serious injury.[30] The Court unequivocally upheld the WorkCover Authority’s submission that this requirement did not also apply where the worker commenced common law proceedings following the issue of a certificate by the Authority[31] or where the worker, as in the current application, sought leave from a court to do so.[32]
[28]TN 83-88
[29]Ibid, [64[-[66] and [73]-[76]
[30]Referred to as the first gateway by which a worker may commence common law proceedings, Ibid, [63]
[31]Referred to as the second gateway, Ibid
[32]Referred to as the third gateway, Ibid
42 Notably, when he rejected a later application for special leave to appeal, Chief Justice French of the High Court, among other things, also observed that the decision of the majority in the Court of Appeal had turned on their construction of a particular provision of the Act, namely s134AB.[33]
[33]Ivanka Pravidur v Scental Pacific Pty Ltd [2010] HCATrans 325, 7-8
43 The plaintiff, however, sought to raise further arguments in support of the application to exclude the film. Subject to the parties meeting a timetable to file and exchange written submissions, again at the request of the plaintiff, I adjourned the further hearing of the application for leave and reserved the costs of the application to exclude this evidence and the adjournment.
44 On the return date, I upheld as soundly based each of the defendant’s submissions rejecting the various arguments raised in furtherance of the plaintiff’s submission that the decision in Pravidur was distinguishable from the present application. The arguments advanced included a submission that the Ministerial Directions applied to the current application for leave to issue proceedings and required the disclosure of the surveillance film which, as I have already noted, came into existence before the Authority provided the advice and response material. Further submissions were made to the effect that the surveillance film was in any event inadmissible by reason of the provisions of the Civil Procedure Act 2010 and the Evidence Act 2008 and due to the failure to disclose the film which contravened the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”).
45 My reasons for rejecting the plaintiff’s objection, which necessarily incorporate the submissions made by the defendant, are summarised in the paragraphs that follow.
46 As submitted by the defendant:
· The Directions do not derogate from the conclusion reached by the majority in Pravidur, as they cannot be given a broader construction than the provisions of the Act under which they are made.[34] Moreover, the arguments advanced by the plaintiff in this regard were identical to those rejected by the Court of Appeal.
[34]Pravidur, [77] and [78]
· There is no residual discretion retained by a judge to exclude evidence which has not been disclosed at the time of the giving of the advice pursuant to s134AB(7)(b).[35]
[35]Ibid, [85]
· The decision in Pravidur explicitly extends to the current application for leave to issue proceedings.
· The attempt by the plaintiff to distinguish between “applications” and “proceedings” is contrary to both the findings in Pravidur and to the language of s134AB(8) which refers to “proceedings brought by the worker in accordance with this section”. In addition to identifying a further reference contained in another provision of this section,[36] the defendant also, in my view appropriately, drew attention to authority for the proposition that leave applications are proceedings.[37]
[36]Namely, s134AB(12) – “proceedings in accordance with this section, other than an application under subsection 16(b)”
[37]PagetvJLT Workers Compensation Services Pty Ltd & Glenelg Shire Council [2005] VSCA 144
· The provisions of the Civil Procedure Act do not assist the plaintiff as s6(b) and s26(3) indicate that the Act does not override the doctrine of privilege and in this case, until shown at hearing, there had been no waiver of the privilege claimed by the defendant in respect to the surveillance film.
· As in Pravidur, s24(1) of the Charter was invoked, albeit too late in that appeal hearing and for this reason the Charter issue was not finally determined by the Court of Appeal. The provision articulates the right of a party to a civil proceeding to have the proceeding “decided by a competent, independent and impartial court or tribunal after a fair and public hearing.” Citing the alleged failure to disclose this film when required, the plaintiff asserted that the admission of this evidence would be unfair. This reasoning process, like much of the argument advanced by the plaintiff, was circuitous because there was no requirement to disclose the film. In any event, as submitted by the defendant, whilst the film may be prejudicial to the plaintiff’s case, this is not a proper basis for finding that admitting it in evidence constituted unfairness to the plaintiff. In circumstances where s33 requires referral of the question of the application of the Charter to the Court of Appeal, the defendant also appropriately queried the Court's power to exclude evidence which purportedly contravenes the Charter.
· The provisions of the Evidence Act do not assist the plaintiff. The plaintiff submitted that, in accordance with s135, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, as for example, due to his inability to seek medical opinion on the question of whether or not the activities captured in the film were in any way inconsistent with the expert diagnoses obtained in relation to the right shoulder and/or neck injuries and because the admission of the material would “cause or result in undue waste of time”. The latter would occur, the plaintiff submitted, because the film was obtained more than 18 months, before the most recent of the specialist examination. In all, I accept as logical and well reasoned the defendant’s response to the effect that:
Ø The basis for concluding that the admission in evidence of the film would be unfairly prejudicial was not clearly spelt out. Indeed, in my view there is no obligation on any party to obtain specialist opinion on the content of the film, although the absence of this may in an appropriate case affect the weight afforded to the surveillance evidence typically produced by the Authority. Moreover, if privilege is waived and film is shown to a plaintiff before a contested hearing and before the completion of the medical examination, conceivably a court could also take into account any failure of a plaintiff to seek his or her own specialist/s comment on the film. This was not, however, an issue in determining the present application;
Ø Surveillance material is typically used to test credit and this is best achieved where there has not been earlier consideration of the content of the film;
Ø To accede to the plaintiff’s submissions in this regard would amount to “a radical departure from the established practice of trial courts...” because it would exclude the film and could, for that matter, exclude any other material which might be used to test credit, irrespective of when it was generated, on the ground that it might be unfairly prejudicial to a witness.
The plaintiff’s evidence prior to the film being shown
47 It is convenient to deal with the content of the film before turning to the treatment history and the medical evidence. My discussion of the content of the film requires that I first summarise various aspects of the plaintiff’s evidence contained in his affidavit or given on the first day of hearing with the assistance of an interpreter before this was shown.
48 As I have already mentioned, the proceeding was adjourned overnight for oral submissions and the following day a different interpreter attended. The proceeding was further adjourned for a fortnight to allow the filing and exchange of written submissions. This meant that cross-examination of the plaintiff did not resume until the third day of hearing, when he was assisted by the same interpreter and the film was shown for a second time. The plaintiff’s evidence was further interrupted by the interposition of Dr Patrick’s oral evidence.
49 Through cross-examination of the plaintiff prior to showing the film, among other things, the defendant sought to elicit evidence from the plaintiff specifically addressing his capacity to lift with his right arm, the extent to which he employed his right arm in a range of activities such as shopping or driving or entering and exiting his vehicle and the extent to which he was able to move his neck and his right arm.[38]
[38]TN 54-60
50 Sometime after cross-examination had resumed on the third day of the hearing, the plaintiff sought to explain some of the responses given by him on the first day of the hearing by attributing these to difficulty he said he had in understanding the dialect used by the first interpreter prior to the film being shown on the first day.[39]
[39]TN 134-136 and 143
51 The plaintiff nevertheless acknowledged that he understood the importance of providing accurate evidence but added that, without raising this matter directly with his solicitors, he had contacted the secretary (presumably his solicitors’ secretary) as soon as Court finished and requested that another interpreter be found.
52 This explanation prompted the defendant’s counsel to take the plaintiff to a further selection of questions and answers transcribed on the first day of hearing which the plaintiff largely accepted as correct. In other words, as recorded, this evidence (some of which was given directly) was probably reliable.
53 As I have already noted, whilst spoken English is not the plaintiff's first language, I was satisfied that he demonstrated a good understanding of spoken English. I was also satisfied that, where at times his answers appeared to be non-responsive, this was often due to the plaintiff's failure to listen carefully to a question and his tendency to repeat matters favourable to his case, rather than because of any substantial misunderstanding occurring between the interpreter and the plaintiff.
54 Accordingly, accepting for the moment that, as he said he did, the plaintiff had arranged to change the interpreter, save for an instance which I will describe shortly, I was not satisfied that any problem the plaintiff may have had with the dialect spoken by the first interpreter had substantially compromised his understanding of the questions asked or of the answers given either directly or through the interpreter as transcribed.
The evidence describing the extent to which shoulder/neck pain and disability interferred with ordinary activities of daily life
55 As to the extent to which pain and disability interfered with the ordinary activities of daily life, in his affidavit sworn in 2010 the right-handed plaintiff deposed that his right shoulder injury represented the “biggest problem.”[40] In this regard, the plaintiff described:[41]
[40]Exhibit P1, 17 [19] and [23]
[41]Ibid, [18] to [21] and [23]
· Ongoing right shoulder pain, at times extending into his neck.
· No longer being able to perform home maintenance or mow the lawns, although the plaintiff said that he could still undertake “some very light gardening, but not much at all”. In further evidence-in-chief,[42] the plaintiff said that he still tried to do some very light gardening but was restricted by pain. He did, however, through his oral evidence and demonstration indicate that this activity involved standing and slowly watering the garden with a hose held in his left hand. Under cross-examination, the plaintiff indicated that sometimes he tried mowing the grass and that he could use his right hand to hold the hose but after five or 10 minutes he had to change to his left hand due to pain in his neck and shoulders and shaking in his right arm.[43]
[42]TN 48-49
[43]TN 53-54
· Difficulty in driving other than for short trips. In further evidence-in-chief, the plaintiff explained that he could drive for up to 20 minutes, but that he had to stop and rest because his hands shook if he held the steering wheel for too long.[44] Under cross-examination, the plaintiff indicated that he drove for short trips, 10 to 15 minutes from his house, sometimes to shop with his wife and sometimes to visit his brother. In effect, the plaintiff indicated that sometimes he went shopping alone but only for light items such as milk or bread.[45]
[44]TN 45
[45]TN 54
· Sleep disrupted by right shoulder pain and when he rolled onto his right shoulder. In further evidence-in-chief,[46] the plaintiff confirmed that this was still the case and that it was getting “worse and worse”. He told the Court that he slept 4 to 5 hours each night and, on average, pain woke him at night every two hours. Taking Panadol helped relieve this “Just a little bit”.
[46]TN 46-47
· Restrictions on his ability to play with or lift grandchildren.
· “Biting”, fluctuating pain in his right shoulder with episodes of very bad pain.
· His predicament, because pre-existing impairment of his left shoulder obliged him to continue to rely on his dominant right shoulder to perform daily activities.
56 On the first day of the hearing the plaintiff further indicated through evidence-in-chief and his answers to cross-examination that during the day, other than sometimes trying a light job such as sweeping with a broom, watering the garden or visiting relatives living close by, he did very little else.[47]
The responses to cross-examination concerning the plaintiff’s capacity to lift with and employ his right arm and the range of movement in his neck and right shoulder/arm [48]
[47]TN 48-50 and 53
[48]TN 53-61
57 In addition to the evidence that his right arm started to shake after holding a hose for 5 to 10 minutes, the plaintiff indicated on the first day of hearing that he was unable to lift heavy items with his right arm. As I have already noted, the example given was that the plaintiff sometimes shopped alone for milk or bread which he could lift with his right arm but, if the shopping involved heavy items, he required the assistance of his wife or his daughter. On the third day of the hearing, the plaintiff effectively acknowledged the accuracy of this evidence, adding that he could not lift more than 2 or 3 kg in weight.[49]
[49]TN 138-144
58 On the first day of hearing, the plaintiff agreed with the proposition that given a choice between using his left arm or his right arm to lift “things” he always chose his left arm. This was adopted as his evidence on the third day of hearing.[50]
[50]TN 144
59 Notably, other than when distracted, as for example when he turned to speak to the interpreter, on the first day of the hearing the plaintiff presented as significantly disabled with little active movement of his neck or right upper limb.
60 The plaintiff gave oral evidence to the effect that he had problems with prolonged sitting and standing, with remaining in his vehicle “too long” and with climbing in and out of his vehicle. Through demonstration and his responses to cross-examination, the plaintiff indicated that by reason of his impaired functioning he had to enter his vehicle slowly. Sometimes, when his neck was sore, the plaintiff said that entering his vehicle involved supporting and pulling himself with his left hand clasping what the defendant’s counsel described as “the coat hanger type thing on the door”. Sometimes he bent his upper body and moved his neck but, when he had “big pain”, the plaintiff said he could not move his neck.
61 During the course of this evidence the plaintiff was asked to demonstrate movement of his neck from side to side. Among other things, he moved his head very slowly (demonstrating evident restriction). Whilst at first indicating that on that day he had “big pain” not “bad pain” and that every day he suffered “big pain” but some days were worse than others, the plaintiff appeared to expand this response by later indicating that his pain that day was “worse” big pain not “normal” big pain.
62 After clarifying the description of this, I was satisfied that the plaintiff understood that the defendant’s counsel was referring to the armrest inside the driver-side door when:
· through the interpreter he agreed with the proposition that he sometimes used his right arm/hand to “push off” to enter the vehicle (“Yes, sometimes I do, yeah, when I can”);
· he responded either directly or through the interpreter to the proposition that he took the weight of his body on his right arm when pushing off with the statements -”I don’t push very, very hard” and “I can’t push very hard, you know when I go inside, just, you know..” and “No, I don’t push too hard, I push only my – I put only, I just put my hand in there, but not the whole body weight. (Direct): I control my side, nothing else”;
· he explained both orally and through demonstration that to enter the vehicle most of the time he kept his hand, namely his right arm, at chest level with the forearm extended parallel to the ground and drove “mostly” with his other hand.
63 On the first day of hearing, the plaintiff indicated that, in addition to his biggest problem, his right arm, he had problems with his neck. He agreed that one activity with which he had trouble was reversing his vehicle (a “big problem”), for which some seven or eight months earlier (by my reckoning, in the latter part of 2011 and well after the film had been obtained) the insurer had supplied an enlarged mirror to avoid the need to turn his head. This device was supplied, the plaintiff said, to alleviate problems in moving his neck and shoulders. This evidence appears to have been affirmed during cross-examination on the third day of hearing.[51]
[51]TN 153
64 On the first day of hearing, the plaintiff was questioned in some detail about the extent to which he could move his right arm. When asked to demonstrate how far he could move his right arm in an upwards direction the plaintiff elevated this arm to just under shoulder height or to 90° whilst exhibiting an obvious tremor. His left arm was elevated at the same time, slightly higher, to shoulder level.
65 In response to further questioning, the plaintiff said that he could not lift his arm to his head but indicated that he could lift his hand to the side but “Not much on the side”. An attempt to have the plaintiff raise his right arm above his head to an angle of some 135° resulted in him demonstrating that he could only elevate his right hand and arm with his elbow bent to cheek level. This he confirmed had been the case since the incident: “2006, yes, I think it worse and worse every day. I can’t get the tablets, couple of hours, still the same again, big pain sometimes.” Moreover, in response to the proposition that he had never been able to lift his right arm any better than demonstrated, the plaintiff replied: “No.”
66 On the third day of hearing when taken to parts of the transcript relating to the movement of his right arm the plaintiff either didn’t recall some of his answers or sought to qualify his evidence.[52] For instance, the plaintiff appeared to recall the evidence that he had moved his arm to just below 90°, albeit whilst showing a tremor. He appeared to accept that he had demonstrated that with a bent elbow he could lift his arm to cheek level but added: “What I said was that I can lift my hands sort of like my face, but not only up to the position.” Notably, whilst he was reluctant to accept this, the plaintiff did not dispute the earlier evidence to the effect that he had never been able to lift his right arm better than demonstrated in Court on the first day: “I may have said that”.
[52]TN 125-126
67 However, when the plaintiff was next taken to the content of the film he reported for the first time a different understanding of what arm elevation he had been asked by counsel to demonstrate on the first day. This was, the plaintiff said, due to feeling “uneasy” in Court and not knowing how to answer the questions[53] and due to him not being able to understand the interpreter, whom he believed interpreted the question as asking him to lift both arms at the same time to see how far he could go.[54] If he needed to lift both arms at the same time, as he did on the first day of hearing, the plaintiff indicated that he could not do so because he had pain in the neck as well.[55] In other words, the demonstration on the first day of hearing, where the plaintiff raised an extended right arm to just under 90°, may have produced a better result had the plaintiff raised only his right upper limb.
[53]TN 128
[54]TN 128-137
[55]TN 130
68 However, the demonstration whereby the plaintiff indicated that with his elbow bent he could only raise his right arm to cheek level involved raising only this limb, yet, on the third day of hearing, having already told the Court that the movement in his arm was improved after taking medication,[56] the plaintiff demonstrated to the Court that, with the elbow bent he could separately elevate his right arm to above head height.[57]
[56]TN 128
[57]TN 129
69 The plaintiff denied that he had demonstrated the further movement because he had been shown performing this movement on film.[58] Moreover, when questioned about his clinical examination by orthopaedic surgeon, Mr Fogarty and by occupational physician, Dr Horsley, whose reports I discuss in greater detail shortly, the plaintiff sought to suggest that they too had tested his arm movement by asking him to move both arms at the same time.[59]
[58]TN 131
[59]TN 132-134
70 As it turns out, when both these specialists examined the plaintiff at the request of his solicitors in November 2011 and December 2011 respectively, they found significant reduction in movement (“At the right shoulder there was markedly decreased range of motion and forward flexion was 80° and extension was 20°..”[60] and “On the right side …Forward flexion was only 70°…I did not proceed with the various shoulder tests because of the poor range of motion and the level of fear avoidance behaviour”[61]). I was not satisfied that the various results reported by these specialists were the product of testing conducted in the fashion suggested by the plaintiff on the third day of hearing.
[60]Exhibit P1, 36
[61]Ibid, 43
71 In re-examination, for the first time the plaintiff said that he had taken pain killing medication on the morning of the third day of hearing but none on the morning of the first day of hearing because, on that day, he had been rushing to attend Court.[62] In other words, he sought to attribute the reduction in movement on the first day of hearing to a lack of medication. This is not to say, however, that the plaintiff's movements on the third day of hearing were not also noticably compromised.
[62]TN 202-203
72 Having viewed the content of the film summarised below on a number of occasions, I was left with the strong impression that where he sought to explain or qualify his earlier evidence the plaintiff had done so to overcome the obvious contrast between the ease with which he moved his neck and right upper limb in the film and his more extreme presentation at hearing and during medical examination.
The film
20 January 2011
73 This film was taken at intervals over the period between approximately 10:55 am and 12:42 pm. The activities depicted are summarised as follows:
· From approximately 10:55 am, the plaintiff was seen at a Good Guys store, walking casually in the street and using his right hand to close the door of a motor vehicle. This was large a four-wheel-drive vehicle. In cross-examination, the plaintiff was unable to specifically recall whether on this morning he had taken his medication (which he said he took every morning, sometimes at 9:00 am, sometimes at 11:00 am or sometimes at other times).[63]
[63]TN 149
· From approximately 11:04 am, the plaintiff was seen in a shopping centre (he later confirmed that this was the Dandenong Plaza) where he:
Ø used his right arm as a support whilst riding an escalator;
Ø reached above head height with his right arm to remove and replace a shoe taken from a display shelf;
Ø turned his head freely;
Ø again reached above head height to remove and replace a shoe taken from a display shelf.
· From approximately 11:26 am the plaintiff was seen:
Ø walking in a car park carrying what appeared to be laden plastic bags in each hand. In cross-examination, the plaintiff was able to recall that there were some two to three kg of capsicums in the bag carried in his right hand and “maybe” 2 to 3 kg of bananas in the bag carried in his right hand. The plaintiff agreed that, after he put down the bags, he had stretched his left arm due to pain;[64]
[64]TN 145-147
Ø opening and closing the rear passenger door of a vehicle;
Ø reaching and placing the bags of groceries in the vehicle. In this instance, the plaintiff did not dispute he used his right hand. When challenged about the contradiction between this activity and his evidence on the first day of hearing to the effect that if he had a choice he always used his left arm, the plaintiff appeared to suggest that this really depended on which arm was more painful on any day;[65]
[65]TN 148
Ø opening the driver-side door of the vehicle with his right hand;
Ø using his right hand on the driver-side door armrest as he climbed into the vehicle. In cross-examination, the plaintiff agreed that on both the occasions on which he was filmed entering the vehicle he placed his left hand on the steering wheel and used his right arm on the armrest. In effect, he told that Court that due to his height and pain he needed to manoeuvre to enter this vehicle by holding the steering wheel with his left hand and the arm rest with his right hand. He denied pushing on the armrest, rather the plaintiff sought to minimise the action filmed by characterising it as “leaning”.[66] I formed the view that there was probably a greater degree of weight bearing required than simply leaning on the armrest;
[66]TN 150-152
Ø using both hands on the steering wheel whilst reversing the vehicle without apparent restriction in arm or neck movements. The plaintiff appeared to agree with the proposition that, as he reversed his vehicle out of the car park, he rotated his neck fully to the left and to the right (“you may be right”).[67] He was nevertheless unwilling to accept the proposition that nothing in the film to that point indicated that he had any pain or difficulty in the use of his right arm. Yet, somewhat confusingly the plaintiff agreed with the further proposition that the film provided a good indication of the difficulty he was having in moving his shoulders and neck which had prompted the fitting of a bigger mirror;[68]
[67]TN 152
[68]TN152-153
· From approximately 11:59 am the plaintiff:
Ø shopped with a bag carried in his left hand;
Ø used his right-handed in an unrestricted fashion, as for example to scratch his face or whilst riding on an escalator;
Ø moved his head, arms and shoulders in an unrestricted fashion, as for example when he spoke to a person at a dry-cleaning outlet and when he obtained food from a take-away outlet;
Ø reached over the counter of the take-away outlet at slightly above shoulder height, firstly with his right arm whilst paying for his purchase and next with both arms to receive his purchase. In cross-examination, the plaintiff conceded that, on a number of occasions, he had reached at about shoulder height to pick up items. However, he could not explain why he had not opted to use his left hand which was free.[69] The inference I drew from this and other segments of the film was that in his earlier evidence the plaintiff had probably exaggerated the extent to which pain in his left and/or right arm restricted the use of his right upper limb in the performance of daily activities.
[69]TN 153
· From approximately 12:41 pm, the plaintiff returned to his vehicle where he:
Ø used his right arm to open the driver-side door and entered the vehicle holding the door with his right arm. On this occasion, the plaintiff appeared to use his right arm to support his weight;
Ø again reversed the vehicle with no apparent difficulty.
24 January 2011
74 This film was taken at intervals over the period between approximately 10:52 am and 12:16 pm. The activities depicted are summarised as follows:
· From approximately 10:52 am, using his left hand only, the plaintiff pulled a bin into a property.
· From approximately 11:08 am, the plaintiff walked and inspected shop windows at times with both hands in his pockets.
· From approximately 11:19 am, the plaintiff shopped and was seen:
Ø using his hands interchangeably to remove, inspect and replace small items on display;
Ø moving his head, shoulders and arms freely;
Ø at one stage, with his right arm bent, using his right hand to scratch behind his head;
Ø purchasing food or drink using his right hand to take a utensil/serviette and, with his right arm elevated to shoulder height, using his right hand to take his purchase.
· From approximately 12:11 pm, the plaintiff was seen to enter a green grocery shop where:
Ø he inspected produce such as bananas and reached for and lifted items with his right arm extended at and above shoulder height. In cross-examination the plaintiff reluctantly conceded that he had reached for and picked up bunches of bananas with his right hand (“Yes, I can say yes, and I raised it to some extent);[70]
[70]TN 154
Ø he carried a bag in his left hand;
Ø used both hands to sort out his money at the checkout.
· From approximately 12:16 pm, the plaintiff was seen crossing the road carrying a bag in his left hand before entering his vehicle and driving off.
75 As submitted on his behalf, when elevating his right arm the plaintiff typically did so with the elbow flexed. However, over extended periods, the plaintiff appeared to move his neck and right upper limb freely and without outward signs of pain. Of course, short segments of film taken on two dates, are not decisive of the application or issues of credit. The contrast between this film, some of the evidence given particularly on the first day of hearing and the plaintiff’s presentation on other occasions does, however, lend weight to the defendant’s submission that non-organic factors are likely contributing to any consequences of injury suffered as a result of the incident.
76 I now turn to discuss the history of the treatment received, the return to work, the content of various medical reports and Dr Patrick’s evidence.
2006 and 2007
Investigation and treatment
77 Other than noting that, general practitioner, Dr Quek, had arranged a CT scan of his neck in January 2007, the plaintiff’s affidavit did not directly refer to treatment for or the consequences of any work-related neck injury. This is not to say that there is no earlier evidence of treatment of neck symptoms,[71] rather, it is an indication of the impaired body function on which treatment and the plaintiff's evidence-in-chief prior to hearing appear to have been focussed.
[71]See WorkCover certificates of capacity dated 11 December 2006 through to 18 November 2010, Exhibit D1 81-101
78 The plaintiff deposed that after the incident, he attended general practitioner, Dr Di Carlo, who prescribed pain killing medication and certified him as unfit to work.
79 This and other evidence contained in his affidavit was corrected during evidence-in-chief by the plaintiff as a preliminary to adoption of the content of the affidavit. At first the plaintiff, said that Dr Di Carlo gave him a couple of days off work and certified him as fit for modified duties.[72] The plaintiff corrected this evidence by, among other things, telling the Court that he took a taxi to see Dr Di Carlo for the initial consultation and that he received a certificate for modified duties on his second consultation on 11 December 2006.[73]
[72]TN 39
[73]TN 41 and 52
80 This evidence was again corrected by the plaintiff after he was reminded by his counsel that the medical records showed an attendance on 11 December 2006 on another doctor from the McKinley Medical Centre (“the Clinic”), Dr Abdelmalek.[74] The certificate of capacity issued on 11 December relating to “pain in rt shoulder and neck” confirms this attendance.[75] Moreover, Dr Di Carlo’s reports, submitted to the plaintiff’s solicitors in November 2009 and January 2012 respectively,[76] state that the plaintiff first came under her care from 2007.
[74]TN 52
[75]Exhibit D1, 81
[76]Exhibit P1, 30-33
81 The evidence of the plaintiff’s earliest presentation to and treatment by other doctors from the Clinic was, however, summarised in Dr Di Carlo’s two reports. The records kept by the Clinic apparently confirm that when the plaintiff first presented following the incident “Clinically he had reduced neck rotation to the right with restricted neck flexion. He had pain on lifting his head and described a constant ache which disturbed his sleep”. It was noted that the range of movement in both shoulders was restricted. The plaintiff's condition was managed conservatively with the use of analgesics, the anti-inflammatory medication, Mobic and by physiotherapy.[77]
[77]Exhibit P1, 30
82 There was the CT scan arranged by Dr Quek and obtained on 3 January 2007, which Dr Di Carlo said showed moderately severe spondylosis with no nerve impingement.[78] In both of her reports, the general practitioner also referred to the results of x-ray and ultrasound imaging of the right shoulder, which she said showed no tear or osteoarthritis, although there were signs of tendinopathy.
[78]Ibid and see also scan report at 28
83 As far as I can tell from the material before me:
· Dr Di Carlo’s reports contain the only reference to x-ray and ultrasound images of the right shoulder obtained prior to those ordered by rheumatologist, Dr Patrick in April 2009, the results of which are summarised shortly. The general practitioner does not mention this later imaging.
· The defendant did not dispute that the incident likely caused or contributed to the partial thickness tear of the supraspinatus tendon noted in the images of the plaintiff’s right shoulder obtained by Dr Patrick in April 2009.
84 In these circumstances, I formed the view that, in both her reports, Dr Di Carlo had probably mistakenly commented on the results of other earlier images, likely relating to the injury to the plaintiff’s left shoulder in 1998.
85 Each of the certificates of capacity issued in December 2006 and January 2007 attribute the plaintiff’s symptoms to neck injury. However, from June 2007, after Dr Di Carlo commenced treating the plaintiff, each of the certificates issued attribute the plaintiff’s symptoms and reports of pain to right shoulder and neck strain injury.
The duties performed before and after the incident
86 Much was said at hearing about the nature of the duties performed by the plaintiff before and after the incident. As I have already mentioned, the plaintiff repeatedly described his position with the defendant as that of a machine operator or plant operator. Among other things, the plaintiff gave evidence to the effect that prior to the incident he was performing modified/light duties and from about 11 December 2006 he returned to the same position and continued to perform modified but lighter duties than before.[79]
[79]Exhibit P1, 16 [11], TN 41-42 and TN 204-5
87 I found the plaintiff's oral and affidavit evidence as to the nature and the extent of the duties performed by him before and after the incident vague and imprecise.
88 The most detailed description of the duties performed by the plaintiff was contained in the vocational assessment report submitted by Ms Green in February 2012 where she recorded the following:[80]
[80]Exhibit P1, 66-67
“In his pre-injury employment…, Mr Aliti’s duties included factory process work including packing and he also did forklift driving. Whilst working on the process line Mr Aliti was involved in visually checking the installation material and removing defective material. Mr Aliti’s duties also involve setting, operating and monitoring a packaging machine and removing bundles of packed installation from the machine and placing the products onto a trolley. As a forklift driver Mr Aliti was responsible for removing stock from the production areas into the warehouse, placing stock onto and off warehouse racking and some loading and unloading of vehicles.
Mr Aliti reported that whilst on light duties his main role was informing new employees about the “rules and regulations” of safety and explaining the tasks involved in the process line and operating the packing machine.
The physical demands of Mr Aliti’s pre-injury duties involved standing, bending, twisting, repetitive use of the upper extremities including lifting up to 25 kg, getting on and off a forklift and pushing and pulling trolleys and walking”.
89 Whilst Ms Green appears to have understood this to be so, for the reasons summarised below, I consider it unlikely that the plaintiff was performing his normal duties at the time of the incident.
90 To start with, the copy certificate of capacity dated 10 September 2000 and tendered by the defendant demonstrates that as a result of left shoulder tendinitis. the plaintiff had been restricted to performing modified duties. This certificate, which nominated “light duties”, restricted lifting to no more than 15 kg and precluded duties that required the plaintiff to elevate his arm (presumably his left arm) above shoulder height.[81]
[81]Exhibit D1, 80
91 No further material was adduced by the defendant to indicate what, if any, formal restrictions were maintained thereafter. However, the copy letter dated 22 January 2002 from Ergonomic and Rehabilitation Services to the insurer and Dr Di Carlo’s reports establish that there were ongoing problems attributable to the plaintiff’s left shoulder condition.[82] For instance, as Dr Di Carlo noted: “During the next few years Mr Aliti remained keen to return to normal hours at work and went on to normal duties for some time until it became clear to his physiotherapist and doctor at the time that he was not coping very well. He then returned to modified duties.” Those modified duties clearly involved the plaintiff pushing a laden trolley, which, in accordance with senior counsel’s opening indicates that, when the incident occurred the modified duties performed by the plaintiff had still involved heavier duties.[83]
[82]Ibid, 48 and Exhibit P1, 30 and 32
[83]TN 8
92 At hearing, the plaintiff explained that, when after returning to work following the incident, he had performed light duties for nearly three years (he subsequently corrected this to “two years”) because the doctor had advised him: “you have to go to work because the insurance wants you to go in, just clock on and clock off’’ and because modified duties were not available.[84] At face value this evidence appeared to indicate that, firstly, modified duties that in some ill-defined way, were less demanding than the modified duties performed prior to injuring his right shoulder and neck had not been available and that, secondly, for the two years until made redundant, he was only required to make sure that he clocked on for work.
[84]TN 41-42
93 After considering all of the evidence and particularly the copy WorkCover certificates of capacity and extracts from the Pay Records tendered, I concluded that it was unlikely that the plaintiff returned to duties that involved pushing or pulling laden trolleys or to driving a forklift. I was however, satisfied that following his return to work, in due course, the plaintiff likely resumed full-time hours with regular overtime performing lighter duties to accord with the requirements of the certificates of capacity issued from time to time and a reduced capacity to use his right upper limb and neck.
94 Commencing with the bundle of certificates of capacity issued for the period from 11 December 2006 to 27 November 2008, I note that by reason of neck and/or right shoulder pain/strain the plaintiff was restricted to performing modified duties. Between December 2006 and June 2007, these restrictions progressed from a 5 kg restriction on lifting to a restriction of no more than 15 kg and, without referring to the plaintiff’s left shoulder condition, precluded lifting and/or raising his right shoulder above shoulder height.[85]
[85]Ibid, 81-99
95 The certificate issued on 17 January 2007 for the period ending 7 February 2007[86] also indicated that at the time the plaintiff was “still not to work on forklift”. Whilst I accept that subsequent certificates did not also restrict the plaintiff's operation of a forklift, self evidently, the plaintiff's treatment, involving from time to time medications such as the course of Endep prescribed by Dr Patrick in early 2008, likely also impacted on his capacity to operate machinery such as a forklift.[87]
[86]Exhibit D1, 84
[87]Exhibit P1, 31
96 Accordingly, the plaintiff's concession at hearing that the work-related restrictions imposed on the use of his left shoulder had been permanent and that, following injury to his right shoulder similar restrictions were imposed in respect to “his right side”,[88] must be evaluated with these additional factors in mind.
[88]TN 172
97 The Pay Records tendered by the defendant show that before and after the incident, with occasional fluctuations, the plaintiff regularly worked base hours of 31 or 39 hours on alternate weeks and he regularly performed overtime, on occasion working more than 48 hours in a week.[89]
[89]Exhibit D1, 106-108
98 Allowing for the responses in cross-examination and re-examination, the plaintiff's duties, pattern of work and his working hours between his return to work and the redundancy some two years later were articulated in the following way:
· The plaintiff agreed that he was working the same sort of hours as worked before the incident.[90]
[90]Cross-Examination, TN 167
· The plaintiff agreed that he did overtime following the incident.[91]
[91]Cross-Examination, TN 167
· The plaintiff was rostered for 31 or 39 hours on alternate weeks, with a rostered day off every second week but no shiftwork.[92]
[92]Re-Examination, TN 205-206
· If, he worked on a rostered day off, a Friday, the plaintiff said he was paid eight hours overtime and an additional 4 to 5 hours overtime where he also worked on a Saturday morning. This, the plaintiff said, probably explained the record for the week ending 9 September 2007.[93] However, this evidence did not explain the record, as for example, for the week ending 20 May 2007, which records 31 base hours and 17.5 overtime hours worked or for the week ending 11 November 2007, which records 47 base hours and 15 overtime hours worked or for the week ending 27 January 2008 which records 31 base hours and 19 hours overtime worked.[94]
[93]Re-Examination, TN 206
[94]Exhibit D1, 107
· Until the plaintiff was made redundant, if work was very busy, he said he might do overtime of 13 or 14 hours per week. He agreed that the jobs he performed were of value to the defendant.[95] In other words, it is unlikely that the plaintiff was simply “clocking on” and “clocking off” over a two-year period or confined to performing only menial tasks. The plaintiff did qualify his response by stating that he wouldn't do overtime if he felt unwell and, at one stage, he denied performing regular overtime. However, I note that, other than a total of some eight weeks in which overtime was not recorded, the Pay Record shows that the plaintiff consistently worked overtime hours in each week worked.
[95]Cross-Examination, TN 169
· The plaintiff claimed that on the days when there was heavy work he swapped with other workers to perform the “light job”.[96] This evidence does suggest an ongoing arrangement to ensure that the plaintiff had access to the lighter duties.
[96]Cross-Examination, TN 169
· At one stage during re-examination when asked whether the work he was doing was the same or different work, the plaintiff responded that the doctor had recommended continuation of light duties: “I need to go with doing light duty, to put the stickers, cleaning sometimes when there was not enough work”.[97] This evidence accords with the information supplied by the plaintiff to Dr Hwang in 2009[98] and the passage copied from Ms Greens report above.
· As involving between December 2006 and December 2008: “the same position, the same duties, but sometimes I would help some of my colleagues to do something else”.[99]
2008 to 2009
[97]TN 205
[98]Exhibit D1, 13
[99]Re-Examination, TN 205
Ongoing investigation and treatment
99 Rheumatologist, Dr Patrick’s written report to the plaintiff’s solicitors is dated 22 June 2010.[100]
[100]Exhibit P1, 25-27
100 When first examined by Dr Patrick on 10 January 2008, the plaintiff described “ongoing ache and movement irritability in the cervical spine. Discomfort was especially with right-sided neck rotation”.[101] Clinical examination apparently revealed neck irritability with right rotation and extension movement, normal shoulder function (90% of normal) without rotator cuff or capsular restriction and normal neurological results for both upper limbs. Whilst he did not have the CT scans or the reported result, Dr Patrick concluded that lower disc and facet degenerative arthritis of the cervical spine was the likely cause of the clinical signs found by him.
[101]See also Dr Patrick's response during re-examination, TN 197
101 A short course of oral steroids and Endep as a muscle relaxant failed to resolve the plaintiff’s neck symptoms. Rather, when reviewed two months later in March 2008, the plaintiff presented with right-sided rotator cuff abduction impingement, for the treatment of which Dr Patrick administered a steroid injection to the subacromial bursa. The plaintiff also complained of more diffuse muscular pains, which, in cross-examination, Dr Patrick recalled affected the plaintiff's neck and shoulder girdle. These symptoms apparently prompted the specialist to organise a total skeletal isotope scan, the results of which evidently excluded more significant inflammatory problems.
102 On review on 24 June 2008, Dr Patrick noted that the injection administered had reduced abduction irritability for a limited period, the plaintiff’s other symptoms were better managed and that the plaintiff was coping at work. He referred the plaintiff for a neck and general strengthening physiotherapy program and recommended review on an as needed basis.
103 There is certainly no suggestion that in the six months before he accepted a voluntary redundancy[102] or in the 10 months before he was next reviewed on 6 April 2009 when ultrasound and x-ray imaging of both shoulders was ordered, the plaintiff was unfit to continue working full-time within the existing work regime as modified.[103] Indeed, in cross-examination, Dr Patrick agreed with the proposition that, as at June 2008, the picture presented was of a fairly modest problem (“Yes, some moderate degenerative problems in his neck, with later focus, the shoulder, some response to a specific shoulder treatment, didn’t seem to be on track for managing”[104]).
[102]Exhibit P1, 17[14]
[103]Ibid, 29.
[104]TN 191
104 However, the rheumatologist said that on 9 April 2009, the plaintiff presented with symptoms of diffuse neck and bilateral shoulder pain. The right shoulder problem, suggesting that right shoulder capsular restriction, was worse than the left shoulder.
105 According to Dr Patrick the imaging had revealed a small rotator cuff tear but intact glenohumeral joint in the right shoulder, with findings in the left shoulder that were suggestive of a subacrominal bursitis.
106 In any event, when Dr Patrick was taken to the results of the January 2007 CT scans of the plaintiff’s neck and of the April 2009 imaging during cross-examination, he agreed with the proposition that there was an anatomical explanation for the symptoms affecting the plaintiff’s right shoulder and for posterior neck pain but not for the plaintiff’s complaint of more generalised pain.[105] However, through his responses to further cross examination, Dr Patrick also made clear his opinion that, compared with the significant degenerative change revealed in the plaintiff’s neck, the structural changes in the plaintiff’s right shoulder were minor.[106] (see submissions TN 218, 219, 220)
[105]TN 188
[106]TN 200-201
107 Based on the assumption that the rotator cuff tear was caused by the incident, Dr Patrick was also questioned about the apparent deterioration in the right shoulder function in the two month period between reviews. Dr Patrick’s responses show that he considered that a certain range of irritability could be explained anatomically but not the diffuse pain reported. In his opinion, the latter indicated the development of the myofascial pain syndrome, subsequently diagnosed by him.[107]
[107]TN189-190
108 Notably, oral steroids did not resolve the problem. Blood tests, to rule out a systemic explanation for the bilateral shoulder symptoms noted in April 2009, were normal (which also excluded any underlying pathology or anatomical explanation for the global irritability affecting the left shoulder[108]) and the plaintiff reported little benefit from a right shoulder hydrodilatation procedure.
[108]TN 193
109 On reviewing the plaintiff for the last time on 12 June 2009, Dr Patrick concluded that, having suffered injury to the right rotator cuff and capsule and possible aggravation of underlying cervical degenerative change, the plaintiff had subsequently developed a myofascial pain problem not specifically “work-related but dependant on other factors including personality type, cultural traits, anxiety and depression.” [109] These factors, Dr Patrick told the Court, were important in the development of myofascial pain syndrome[110] and (in response to a question from the Court) they had made the plaintiff susceptible to a myofascial pain problem.[111]
[109]Ibid, 26-27
[110]TN 195
[111]TN 200
110 In June 2009, Dr Patrick concluded that more interventional treatment, either to the right or left side of the neck and shoulder girdle, would not be beneficial. He referred the plaintiff for functional capacity and restoration-type rehabilitation with pain management at Dandenong-Epworth Rehabilitation, a program in which he subsequently noted the plaintiff performed poorly. I will discuss rehabilitation physician, Dr Palit’s report shortly.[112]
[112]Exhibit P1, 21-24
111 To summarise then, through his report and vive voce evidence, Dr Patrick:
· Explained that a myofascial pain problem (namely “widespread pain that seems muscular to a clinician”[113]) had contributed to the progression of the plaintiff’s clinical picture.
[113]TN 194
· Explained that there is no diagnostic testing for this condition which usually arises “in the setting that there is some underlying structure causing pain” and “chronic pain leads to sensitisation and amplification of some of these pathways for pain and part of that on a clinical presentation is widespread muscular myofascial pain. “ [114]
[114]TN 194
· Explained that chronic pain syndrome, namely where no anatomical basis for pain exists, is “in some ways” synonymous with myofascial pain syndrome.[115] I did not take this to mean that the specialist thought that they were the same in all respects.
[115]TN195
· Accepted various propositions advanced during cross-examination, namely that degenerative changes in the plaintiff’s neck and possibly some capsular involvement in the right shoulder, which had initially caused modest pain and restriction, had developed to cause more diffuse pain and more significant restrictions and, that it would be difficult to identify which of the pain and other consequences alleged by the plaintiff were attributable to organic causes.[116]
[116]TN 195-196
· Confirmed that a myofacial pain syndrome did not rule out a physical problem.[117] Indeed, in response to a question from the Court, Dr Patrick acknowledged that the origin of plaintiff's myofascial pain problem was not entirely non-organic.[118]
· Acknowledged that he had never received a history of an old left shoulder injury.[119]
· During further re-examination, acknowledged that he had not found any aspect of the plaintiff's presentation to suggest lack of genuineness or exaggeration.[120]
[117]TN 198
[118]TN 200
[119]TN 199
[120]TN 202
112 Importantly, Dr Patrick did not examine or treat the plaintiff subsequent to the final review on 12 June 2009 and he did not view or comment on the results of an MRI investigation of the plaintiff’s cervical spine on 21 December 2011. These images were, however, reviewed and commented on by, neurosurgeon, Associate Professor Bittar and, orthopaedic surgeon, Mr Dunin, whose opinions and reports I summarise shortly.
113 It appears that in July 2009, after liability had been accepted for this earlier injury, specialist in occupational medicine, Dr Baker, undertook an impairment assessment of the plaintiff's left shoulder.[121] Having described the circumstances giving rise to the left shoulder injury, the plaintiff informed Dr Baker that:
[121]Exhibit D1, 8-12
· His condition had not improved since he stopped work.
· The problems with his right shoulder were worse.
· He could not move his left arm above shoulder height or put his arm behind his back, although he was able to use this arm at a bench or table.
· He had difficulty showering and dressing and sometimes his wife had to help him dress.
· His driving tolerance was limited to 10 to 15 minutes, although he was able to put his automatic car into gear with his left hand.
· He had problems sleeping and could not lie on either shoulder without suffering discomfort, which meant that he was moving about all night.
· He was taking a variety of medication (Mobic, Panadeine Forte and Panadol) and attending physiotherapy twice a week.
· He was performing light tasks around the home and tried to help his wife.
114 I think it clear from the responses given by the plaintiff during cross-examination that, whilst he could not specifically recall his discussions with Dr Baker, he nevertheless accepted that impairment of his left arm restricted his capacity to drive both before the incident (“Yes, it was, but not much”[122]) and at the time of Dr Baker's examination, it restricted his ability to bathe and dress himself (“Yes, yes, dressing myself like with a singlet or a jumper, I always had the pain on that side”[123]) and it caused him problems in sleeping should he roll onto his left side at night (“Of course, that caused a lot of problem”[124]).
[122]TN 181
[123]Ibid
[124]Ibid
115 Other than the restrictions affecting the right shoulder, I note that Dr Baker said that clinical examination of both shoulders revealed very little to account for the reported impaired functioning of the plaintiff's left arm. For instance, among other things, Dr Baker noted no obvious deformity or muscle wasting in the left shoulder, an ability to elevate the arm to 100° and abduct the arm to 90°, restriction of extension, adduction and internal rotation of the arm but otherwise a full range of movement at the elbow, wrist and joints of the hand and a reasonable grip strength in the left hand.
116 So far as this application is concerned, Dr Baker’s observation that, after his formal assessment was completed, the plaintiff had been able to dress, provides one example of the discrepancy between the plaintiff's claimed limitations and his function as observed during examination, subsequently also noted by other specialists.
117 When assessed by rehabilitation specialist, Dr Palit on 27 August 2009,[125] the plaintiff gave a history relating to the left shoulder injury and to the injury suffered as a result of the incident. Dr Palit accessed the April 2009 images. The plaintiff told Dr Palit, among other things, that:
[125]Exhibit P1, 21-24
· Despite treatment, he had continued to struggle with even light duties at work to the point that he was finally retrenched in December 2008.
· Despite no longer working, his function and mood had not improved and cortisone injections and hydrodilatation procedures had not made a great deal of difference.
· He was experiencing high pain levels affecting his neck and right shoulder.
· He had issues with sleep and rose frequently at night. Due to concerns about its effect on him and about the amount of medication he was using, he had ceased taking a tricyclic antidepressant which had assisted his sleep. At the time of the consultation his medication included Mobic, Panadol and Panadeine Forte.
· He was fearful of exacerbating his pain through physical activity and a return to work.
· He was dependent on his wife for personal care tasks, his high pain levels precluded performing any of his usual outdoor tasks, driving was limited to 15 to 20 minutes and he was doing very little at home.
118 Physical examination apparently drew complaint of pain “with every plane of cervical spine movement apart from spinal extension” and revealed restricted movement of shoulder joints, both in the active and passive domains. The specialist also noted “some agitation” in the course of the consultation.[126]
[126]Exhibit P1, 23
119 Dr Palit had, he said, recommended resumption of antidepressant medication to treat lowered mood, agitation, difficulty sleeping and pain. It is unclear whether or not Dr Palit was responsible for prescribing Endep, which medication the plaintiff subsequently advised at least two other specialists he had ceased taking due to its side-effects.[127]
[127]See the reports of Dr Hwang and Dr Gill, Exhibit D1, 14 and 23
120 Dr Palit also reported that, whilst he had not believed that a rehabilitation program would result in a great deal of change in the plaintiff's pain, he nevertheless felt that this program might encourage independence with personal care tasks and participation in some simple domestic tasks, increase his self-management skills and “provide meaningful explanation of his state of chronic pain”, although Dr Palit “did not think this process would result in a return to the workforce”.[128]
[128]Exhibit P1, 23
121 As it turned out, the reservations expressed by Dr Palit were well founded because, after attending multidisciplinary physiotherapy, occupational therapy and psychological assessment, the plaintiff reportedly declined treatment, electing instead to continue treatment with his community physiotherapist.
122 Notably, at the time of this assessment (and this was a matter on which the defendant relied), the plaintiff was observed to have exhibited high levels of anxiety and fear of exacerbating his existing condition. He was also found to have demonstrated a very low physical capacity for lifting (2 kg) and for carrying (3.5 kg on non-repetitive basis) and he was assessed as functioning below the critical level required to perform his pre-injury duties. [129]
[129]Ibid, 24
123 Dr Palit’s report and the reports submitted by Dr Di Carlo suggest that it is unlikely that the plaintiff had, as deposed by him in 2010, completed the rehabilitation program.[130] This is not to say that the plaintiff may not have, as he further deposed, gained some insight into pain management, as a result of his contact with the rehabilitation service.[131]
[130]Ibid, 17 [16]
[131]Ibid, 17 [17]
124 The plaintiff was assessed on 31 August 2009 by occupational physician, Dr Hwang at the request of the insurer.[132] On this occasion, among other things, the plaintiff reported pain in the right trapezius muscle “at all times”, an inability to “do anything”, shopping sometimes, minimal physical activities, performing some stretching exercise learnt from his physiotherapist, a driving tolerance of no more than 10-15 minutes and that he required assistance from his wife to dress. He also reported twice weekly physiotherapy and a medication regime consisting of Mobic, Panadeine Forte and Endep, the latter he said he had commenced taking three days before the examination.
[132]Exhibit D1, 13-19
125 Clinically, Dr Hwang found no obvious wasting in the plaintiff’s upper limbs, no trophic changes or other abnormalities and no brush allodynia, although he said that there was some complaint of tenderness on palpitation of the right shoulder and neck. Testing of the plaintiff's neck and shoulders revealed reduced range of movement in flexion, extension and rotation of the neck and symmetrical and reduced range of movement in the plaintiff’s shoulders (“Repeated examination revealed highly variable ranges of movement displaying significant inconsistency”[133]).
[133]Exhibit D1, 16
126 Dr Hwang’s assessment of the plaintiff was no doubt influenced by his observation of inconsistencies in behaviour and the presence of non-organic signs during examination. For instance, Dr Hwang noted that the plaintiff had removed his shirt yet requested assistance to put it on (“when doing so he was noted to use his right arm minimally”) and that spontaneous ranges of movement of the plaintiff’s right arm were variable.[134]
[134]Ibid
127 As to the plaintiff's right shoulder injury, despite the radiological evidence of a supraspinatus tear, likely caused by the incident, in Dr Hwang’s opinion the plaintiff was suffering from a chronic pain syndrome “greatly contributed to by psycho-social factors” with features suggestive of depression.
128 As to the neck injury and allowing for the earlier CT scan result, in Dr Hwang's opinion, the plaintiff was suffering from naturally occurring degenerative changes to his cervical spine which probably contributed to his symptoms, although Dr Hwang clearly believed that psycho-social factors were making a significant contribution to the plaintiff's overall disability. Dr Hwang recommended psychiatric evaluation to determine whether the plaintiff required psychiatric treatment and a multi-disciplinary pain management program which he thought might also help.
129 Absent explanation of how he reached this conclusion, I could not unravel the reasoning process behind Dr Hwang's statement that the degenerative changes in the plaintiff cervical spine had not been “aggravated, exacerbated, accelerated or otherwise influenced by work at this stage.”
130 As far as I can tell, the plaintiff's treatment since the latter part of 2009 had mainly involved regular attendances on Dr Di Carlo who continues to prescribe painkilling medication. I say mainly because, as their reports reveal, many of the doctors were told that the plaintiff had also continued to receive physiotherapy treatment. According to the plaintiff, currently he has medication consisting of two Panadeine Forte tablets taken each morning and evening, one Mobic tablet taken daily, Norspan patches twice monthly (reduced from four patches per month, ostensibly because the doctor thought they were too strong for the plaintiff), Panadeine tablets (taken two at a time) and he takes Panadol tablets (4 to 6 daily).[135] At hearing, the plaintiff added that the medication, particularly Panadeine Forte, caused dizziness and stomach upsets. [136]
2011 and 2012
[135]Ibid, 17 [17] and Dr Di Carlo's second report, 32-33 and the plaintiff's evidence-in-chief, TN 42-43 and re-examination TN 202-203
[136]TN 44-45
The specialist evidence
131 As already noted, the plaintiff relied on the reports of Mr Fogarty who examined him on 28 November 2011 and Associate Professor Bittar, who examined him twice (the first time on 19 December 2011, without an interpreter and next on 12 January 2012 with an interpreter present) and a further report obtained from occupational physician, Dr Horsley, who examined the plaintiff on 7 December 2011.
132 Mr Fogarty’s evidence was directed to the right shoulder injury, whereas Associate Professor Bittar's evidence was focused on the neck injury.
133 The defendant's specialists addressed both injuries. Occupational physician, Dr Baynes, assessed the plaintiff on 29 June 2011. Orthopaedic surgeon, Mr Dunin, the last of the specialists to assess the plaintiff, saw him on 13 March 2012.
134 I will deal with the specialist reports in chronological order, commencing from 29 June 2011.
135 During his consultation with Dr Baynes the plaintiff reported, among other things:[137]
[137]Exhibit D1, 32
· Continuous pain in his right shoulder radiating into the right side of the neck, limited movement of the right shoulder and neck, increased pain due to movement and pain in his left shoulder.
· Weakness in his right arm with a lifting capacity of around 1 to 2 kg, an inability to sleep on his right shoulder only and a capacity to drive limited to around 15 minutes before he has to stop.
· Requiring assistance from his wife to put on jumpers and t-shirts.
· Wearing a shoulder brace every day.
· Spending his day watching TV, walking around, caring for his pigeons and visiting his daughter.
136 Dr Baynes, who gained his understanding of the results of earlier investigations from reports contained in other medical material, made the following observations and/or clinical findings that:
· The shoulder brace which was 6 to 7 months old appeared unused.
· Flexion, extension, rotation and lateral flexion in the cervical spine was decreased, with all movements restricted by pain. Dr Baynes, however, added that, at times throughout the interview, he observed greater neck movement.
· Flexion, abduction, extension, abduction and external rotation of the left and right shoulders was reduced, with inconsistencies with movement of the left shoulder.
· All movements were limited by pain.
· There was no evidence of muscle wasting.
· Palpitation revealed diffuse tenderness over the right shoulder girdle and shoulder and tenderness over the neck more so on the right.
· Neurological examination of the plaintiff's upper limbs was normal and there was no objective evidence of radiculopathy.
137 Dr Baynes diagnosed chronic pain syndrome associated with bilateral rotator cuff soft tissue injuries. He also observed evidence “of abnormal illness behaviour”.[138] The defendant submitted that the chronic pain syndrome diagnosed by this specialist related to psychological factors. Having read Dr Baynes’ report, I was satisfied that he considered that both physical (namely, aggravation of pre-existing, age-related degenerative changes in the right shoulder that was unresolved and unlikely to resolve in the future) as well as psychological factors were responsible for the chronic pain syndrome diagnosis.
[138]Ibid, 33
138 Whilst he appeared to accept that there was evidence of degenerative change in the plaintiff's cervical spine, Dr Baynes nonetheless attributed this to constitutional age-related changes (“I do not believe the cervical spine is related to work”[139]) without explaining why the incident, which had caused right shoulder and right sided neck pain, had only caused injury to the right shoulder. As with Dr Hwang’s evidence concerning any ongoing relationship between the neck condition and the plaintiff’s work, I had some difficulty understanding the basis for excluding the neck from consideration.
[139]Ibid, 34 and 35
139 Whilst focussing only on the work related impairment of the plaintiff’s right shoulder, Dr Baynes assessed a capacity for alternative employment with restrictions. That is to say, employment other than the plaintiff's pre-injury duties and hours, involving restrictions on lifting weights greater than 5 kg or above shoulder height and on forceful pushing or pulling with the right shoulder. However, in Dr Baynes’ opinion, the plaintiff, who he understood had been performing alternative duties when he accepted a redundancy, was fit to perform 15 to 25 hours work per week.
140 As this had not improved the plaintiff’s symptoms over the past five years, Dr Baynes advised against continuation of hands-on physiotherapy, although he clearly approved the ongoing use of painkilling medication. Whilst Dr Baynes’ view that the plaintiff was able to undertake activities of daily living may be defensible, I found Dr Baynes’ further advice that these activities would not be reduced if the plaintiff’s current treatment was ceased, difficult to reconcile with his approval of the medication regime for the treatment of pain.
141 As I have already mentioned, the plaintiff placed particular reliance on Mr Fogarty's findings and diagnosis in respect to his right shoulder injury. It seems that during this consultation in November 2011, the plaintiff attributed his inability to do much work around the house, mow the lawns or drive his vehicle for more than 5 to 15 minutes at a time to his right shoulder injury. The plaintiff did, however, indicate that he was able to water the garden and go walking on two or three days per week to visit friends.
142 Mr Fogarty made the following observations and/or clinical findings, that:[140]
[140]Exhibit P1, 34-38
· The plaintiff had been able to remove his shirt and singlet, albeit with “slight difficulty on account of limited movement of both shoulders”.
· There was some wasting of the supraspinatus muscle of the right shoulder and probably wasting of the deltoid muscle over both shoulders.
· There was no actual deformity of the shoulders.
· The range of motion and forward flexion in the right shoulder was markedly decreased. In the left shoulder the range of motion was also diminished “but not the same complaint of pain”. However, in assessing this evidence I took into account the apparent inconsistency between the plaintiff's inability to “lift the arm even to the level of the shoulder joint” during his examination and the range of movement demonstrated by the plaintiff particularly when he was filmed in January 2011.
· The range of motion in the neck-spine was also diminished, although Mr Fogarty also observed that the plaintiff actually moved his neck better in normal conversation. This was evident during the course of hearing when, whilst giving evidence, the plaintiff demonstrated a capacity to move his neck and turn to speak to particularly the interpreter located to one side of him.
· There were no neurological deficits in either upper limb and all reflexes were present, brisk and equal.
143 Mr Fogarty took into account the results of the imaging relating to the plaintiff's left and right shoulders and to his cervical spine. He diagnosed residual subacromial bursitis and probable capsulitis following soft tissue injury to the left shoulder in June 1998 and residual pain and marked limitation of movement due to partial tear of the supraspinatus part of the rotator cuff and subsequent capsulitis at the right shoulder related injury occurring as a result of the incident.
144 As to the right shoulder injury, Mr Fogarty opined that:
· There was a permanent loss of ability to lift any significant weight with the right arm.
· As a result of the right shoulder injury only, the plaintiff was not fit for unrestricted work and probably not fit for any work.
· The prognosis particular for the right shoulder was poor and the plaintiff “will continue to require painkilling medication and some anti-inflammatory medication as well. He may benefit from further hydrodilatation although I note that he states that he has had hydrodilatation on two occasions on the shoulder without much benefit.”
145 During his consultation with Dr Horsley in December 2011, the plaintiff reported:[141]
[141]Ibid, 42-43
· Ongoing neck and left and right shoulder pain.
· Discomfort varying from 5 to 6/10 up to 8/10 particularly affecting the right shoulder girdle and cervical spine.
· Headaches that occurred on an almost daily basis and could radiate from the right shoulder girdle up to the right side of the neck and into the right of the face over the maxilla and frontal region. The plaintiff said that he managed these headaches with medication.
· Avoiding activities such as repetitive overreaching, pushing, pulling, above shoulder work and static postures involving the cervical spine and bilateral shoulders.
· At times experiencing some parasthesia into the dorsum of the right hand.
· Reduced functional tolerances, namely sitting and dynamic standing tolerances of 30 to 60 minutes, a static standing tolerance of 10 to 15 minutes, a walking tolerance of 20 to 30 minutes and a driving tolerance in an automatic vehicle with power steering of about 10 to 15 minutes.
· Morning stiffness that lasted for a couple of hours, increased symptoms when cold and some dysesthesia, with an itching sensation over his right shoulder girdle.
146 Dr Horsley, who took into account the investigations obtained for both shoulders and for the cervical spine, made the following observations and/or clinical findings, of:[142]
[142]Ibid, 43
· Touch sensitivity on light touch and palpitation on the right side of the plaintiff neck with trigger points at C4/5 and C5/6: “There was considerable fear avoidance behaviour exhibited. He was unhappy about moving his cervical spine in any way. He used his thoracic spine to move to the right and left.”
· Some differential between the circumference of the upper arms and forearms where the circumference of the right-hand dominant plaintiff's right arm was less than his left arm.
· Winging of the scapular, secondary to muscular weakness with movement of the right shoulder and reduced forward flexion, abduction, external rotation and extension. However, Dr Horsley reported that she had not proceeded with the various shoulder tests due to “the poor range of motion and the level of fear avoidance behaviour.”
· Using the Jamar, a 2 kg force on the right compared with a 4 kg force on the left.
147 Dr Horsley diagnosed[143] mechanical neck pain on a background of cervical spondylosis and, allowing for the investigations obtained in 2009, a small partial thickness tear of the right supraspinatus tendon on the right shoulder and moderate thickening of the left subacromial subdeltoid bursa consistent with bursitis without there being evidence of fluid accumulation. Dr Horsley noted significant fear avoidance behaviour and, having read Dr Patrick's earlier report, she too diagnosed “a myofascial element.” In other words, this specialist also concluded that non-organic factors were influencing the clinical picture.
[143]Ibid, 44
148 Dr Horsley opined that:[144]
[144]Ibid, 44-45
· The plaintiff’s symptoms were likely to persist.
· Allowing for the plaintiff's age, the period elapsed since his redundancy in 2008, his limited education, his work experience, his literacy issues, his lack of computer skills and his significant physical disability, the plaintiff had limited transferable skills and he was not a retraining or relocation candidate. Dr Horsley considered that the plaintiff was totally and permanently disabled and he had “come to the end of his working life”.
· The plaintiff's work had been a significant contributing factor on a background of pre-existing constitutional cervical spondylosis and, as identified by Dr Palit, the plaintiff presented with significant disability.
· Ongoing work restrictions involved avoidance of overreaching, pushing and pulling, above shoulder activities, static postures involving the plaintiff cervical spine and bilateral shoulders, lifting items greater than 5 to 8 kg except on an occasional basis and repetition of manual handling of items of 5 to 8 kg.
149 Notably, unlike Mr Fogarty, in making her report, Dr Horsley did not separately identify the consequences of impairment of each body function.
150 Based on the results of his consultations with the plaintiff and his review of an MRI cervical spine investigation performed on 21 December 2011, among other things, Associate Professor Bittar concluded that the plaintiff’s cervical spine was causing his problems.[145]
[145]Ibid, 46-50
151 During two consultations with Associate Professor Bittar, the last on 12 January 2012, the plaintiff reported:
· Neck and right arm pain and ongoing pain in his left shoulder.
· Constant sharp pain in his neck radiating into his right shoulder, arm, forearm and hand, with his arm pain being generally more severe than his neck pain.
· Exacerbation of his symptoms by any movement of his right upper limb, by lifting objects weighing more than a couple of kilograms and by maintaining his neck in a fixed posture for prolonged periods.
· Reduced social activity due to pain and no recreational activities.
· An inability to engage in any significant household cleaning, lawn mowing or handyman activities.
152 According to Associate Professor Bittar, the MRI demonstrated desiccation of the C3/4, C4/5, C5/6 and C6/7 intervertebral discs, facet joint changes at multiple levels, multilevel mild foraminal stenosis with the most significant degree of this seen on the right-hand side at C5/6. This was the location at which the neurosurgeon also observed compression of the right C6 nerve root. The MRI scan appears to have been the only investigation considered by Associate Professor Bittar.
153 The neurosurgeon made the following observations/findings, that:
· There was marked tenderness on palpitation over the right cervical paravertebral region, mild restriction of cervical spine flexion with moderate restriction of extension rotation of those sites and moderate restriction of movement at the right glenohumeral joint.
· The plaintiff's reflexes were brisk, although his left biceps jerk was slightly more brisk than the right.
· There was diminished sensation to light touch in the ulnar distribution on the right in respect to which the plaintiff said he experienced sensory disturbance on persistent flexion of his elbow.
· There was generalised weakness in the plaintiff’s right upper limb which appeared to be related to shoulder pain aggravated by any exertion of the plaintiff's right arm.
· There were no long tract signs.
154 Associate Professor Bittar, who advised that the plaintiff's right shoulder condition was beyond his area of expertise, diagnosed aggravation of cervical spondylosis with possible radiculopathy and probable right ulnar neuropathy (a condition not the subject of this application, which he said required confirmation by nerve conduction studies).
155 In Associate Professor Bittar’s opinion:
· The incident had been a significant contributing factor to the aggravation of cervical spondylosis, ongoing neck and right arm pain, disability and the requirement for treatment. He also concluded that it was most likely that a large portion of the plaintiff symptoms, whilst initially attributed to his right shoulder condition, were probably emanating from his cervical spine condition.
· The plaintiff required right C6 nerve sheath injection with local anaesthetic and steroids, the results of which would help determine whether he was suffering from cervical radiculopathy. If this procedure, conducted by a pain specialist, produced a significant reduction in right arm pain, the possibility remained that the plaintiff would undergo a pulsed radiofrequency lesion of the dorsal root ganglion or, alternatively, a fusion or a foraminotomy of his cervical spine. (In the absence of further investigation by other specialists consistent with the presence of radiculopathy, I could not be satisfied that there was evidence of radiculopathy.)
· The plaintiff was permanently unfit for unrestricted work (“solely a result of his work-related neck injury”). The restrictions this neurosurgeon envisaged required that the plaintiff be permitted to change posture frequently, to avoid any significant neck movements or right upper limb activities and to limit lifting to no more than a couple of kilograms.
· The plaintiff had no capacity to work in a suitable position due to his work-related cervical spine injury.
· The plaintiff would require ongoing medication as per his current regime with regular, likely monthly reviews by his general practitioner.
156 Against a background of significant pain and associated disability for more than five years, which was likely to continue into the foreseeable future, Associate Professor Bittar concluded that the plaintiff’s prognosis was poor. He deemed the plaintiff permanently incapacitated for his pre-injury duties as a factory worker. Indeed, when allowance was also made for the plaintiff's age, limited English, training, skills and occupational history, the neurosurgeon considered the plaintiff to be totally and permanently incapacitated for employment.
157 During his consultation with Mr Dunin in March 2012, the plaintiff reported, among other things:[146]
[146]Exhibit D1, 36-37
· That he was feeling “very bad”.
· Right-sided neck and shoulder pain and that he continued to have left shoulder pain.
· That his right-sided symptoms were worse than the left and pain was aggravated by movement of the neck.
· Neck stiffness which caused it him to sleep poorly and pain that, at times, was severe.
· Doing very little around the house and walking and driving tolerances of 5 to 10 minutes at a time.
· Short-term marginal improvement from having regular physiotherapy and short-term benefit from earlier injections in his right shoulder.
· Anxiety since his redundancy.
158 Mr Dunin made the following observations/findings that:
· The plaintiff held his head to the right side.
· There was generalised tenderness over the right side of the neck and right shoulder region with significant reduction in the range of cervical movement and very little cervical rotation.
· There was tenderness over both shoulders but more so on the right and quite marked reduction in all movements of the shoulders particularly flexion and extension associated with significant muscle guarding. The plaintiff did, however, have good passive range of external rotation to about 50°.
· There was no muscle wasting. The plaintiff's reflexes were present and symmetrical although there was altered sensation involving most of the right upper limb and including the right side of the face.
159 Mr Dunin appears to have had access to the earliest imaging relating to both shoulders and the plaintiff’s cervical spine. However, as I have already mentioned, he is the only other specialist to consider the MRI images obtained in December 2011. According to Mr Dunin, these images demonstrated significant disc degeneration throughout the cervical spine without evidence of any disc prolapse or canal stenosis.[147]
[147]Ibid, 37
160 Mr Dunin concluded that the plaintiff had suffered a soft tissue injury to the right side of his neck and, as Associate Professor Bittar had also opined some two months earlier, Mr Dunin considered that the plaintiff's shoulder symptoms were probably referred from his cervical spine. However, Mr Dunin also identified a significant chronic pain syndrome (a psychological state) which he believed was making a significant contribution to the plaintiff's present symptoms and incapacity: “Clinical examination also revealed that a functional component, in particular, his range of movement of the cervical spine, particularly cervical rotation, was out of proportion to what one would normally see in a patient with significant disc degeneration. In addition, there were significant voluntary muscle guarding on attempted shoulder movements.…”.[148]
[148]Ibid, 37-38
161 In Mr Dunin's opinion (in part informed by the indication in the general practitioner's notes that the plaintiff’s psychological state had worsened subsequent to his redundancy), a significant portion of the plaintiff’s symptoms were of a psychological nature and, absent what Mr Dunin deemed to be a psychological reaction, he predicted that the plaintiff's incapacity would be much less. Whilst Mr Dunin was not qualified to provide specialist evidence relating to matters affecting the psyche, in his report, the orthopaedic surgeon clearly identified what he believed was the organic injury and its consequences.
162 Importantly, Mr Dunin formed the view that the plaintiff was not fit for future employment. This conclusion was informed by factors such as the plaintiff's age and level of skills and by the restrictions imposed on repetitive activities with the plaintiff's upper limbs, on his ability to walk long distances, on reaching objects at a distance and on him working at shoulder height or above. In other words, due to impaired functioning of the plaintiff cervical spine, Mr Dunin considered the plaintiff totally and permanently incapacitated for employment.
The general practitioner’s evidence - 2012
163 The general practitioner submitted her final report in January 2012.[149] At the time, Dr Di Carlo had not seen the results of the MRI investigation, nor had the opportunity to consider the specialist opinion obtained from Associate Professor Bittar. Her report however, confirmed the plaintiff's ongoing treatment regime, recorded that in the last few years his symptoms had varied in severity and had not eased, acknowledged the presence of psychological factors contributing to the plaintiff's “long history of chronic pain” and, without distinguishing between the injuries, indicated her view that the plaintiff was permanently unfit to return to work.
[149]Exhibit P1, 32-33
Compensable injury
164 On balance, it appears that pre-existing impairment of the plaintiff’s left shoulder compromised his capacity to undertake the full range of his normal duties prior to the incident. Indeed, the plaintiff worked for many years on modified duties and it is likely that those duties involved, among other things, pushing laden trolleys and driving a forklift.
165 The medical evidence points to compensable neck injury (aggravation of cervical spondylosis) and right shoulder injury (partial tear of the supraspinatus part of the rotator cuff with subsequent capsulitis) on 5 December 2006. I have preferred the opinions of the specialists, Associate Professor Bittar and Mr Dunin, informed as they were by the recent MRI imaging. They both concluded that the plaintiff was suffering from unresolved aggravation injury to the cervical spine, one consequence of which is that he is probably totally and permanently incapacitated for all employment. This state of affairs is not altered by the likely exaggeration of plaintiff's symptoms (conscious or not).
166 Arguably, the underlying injury-related pathology in the right shoulder could also be contributing to impairment of the plaintiff's right upper limb, although on the evidence available and in view of his exaggerated behaviour, I could not be satisfied that this injury and the pathology revealed explained some, if any, of the plaintiff's ongoing incapacity.
Loss of earning capacity consequence
167 Earlier this year, both Ms Angel, who assessed the plaintiff's prospects of performing suitable employment, and Ms Green, who undertook the vocational assessment to which I have already referred, reported findings consistent with the plaintiff being totally and permanently incapacitated for employment.[150] Notably, in her report, Ms Green analysed various suitable employment options advanced in earlier reports obtained in 2009. Having regard to his neck injury and allowing for the plaintiff's particular circumstances, she concluded that employment as a factory process worker, hand packer, forklift driver, production machine operator, product examiner/inspector, general labourer and driver/courier were not suitable employment options for the plaintiff because they fell outside his physical tolerances.[151]
[150]Exhibit P1, 59-60 and 76
[151]Ibid, 76
168 The opinions of particularly Associate Professor Bittar and Mr Dunin essentially confirm this conclusion, particularly in respect to the ongoing impairment of the cervical spine. In this case, when the plaintiff's age and other relevant factors are taken into account, it would be fanciful to suggest that rehabilitation and retraining would likely improve his capacity for suitable employment to a level that would carry him over the statutory threshold.
169 Accordingly, applying the tests under the Act, by reason of injury-related ongoing impairment of his cervical spine:
· I find that the plaintiff has a loss of earning capacity of 40% or more[152] and that he will, after the date of hearing, continue permanently (that is, in the foreseeable future) to have a loss of earning capacity which will be productive of financial loss of 40% or more.[153]
· I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment or to improve it to a level that would take him over the statutory threshold.[154]
· The plaintiff has satisfied me that, when judged by comparison with other cases in the range of possible impairments or loss of a body function, his loss of earning capacity is fairly described as more than significant or marked and as being, at least, very considerable.
[152]Section 134AB(38)(e)(i)
[153]Section 134AB(38)(e)(ii)
[154]Section 134AB(38)(g)
170 As the plaintiff is entitled to leave in respect to his loss of earning capacity consequence due to impairment of his cervical spine, I am not required to separately determine the pain and suffering consequences aspect of this application or, for that matter, to determine separately whether the injury to the plaintiff's right shoulder also amounts to serious injury.
Conclusion
171 I propose to make an order granting leave to the plaintiff to institute common law proceedings against the defendant to recover damages for pain and suffering and/or loss of earning capacity in respect to injury suffered in the course of his employment with the defendant in particular on 5 December 2006.
172 I will hear from the parties as to the making of appropriate orders.
- - -
Certificate
I certify that these 54 pages are a true copy of the reasons for decision of Her Honour Judge Millane delivered on 2 November 2012.
Dated: 2 November 2012
Hannah Christensen
Associate to Her Honour Judge Millane
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