Annett v VWA
[2020] VCC 885
•25 June 2020
ppp
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02416
| LEIGH ANNETT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2019 | |
DATE OF JUDGMENT: | 25 June 2020 | |
CASE MAY BE CITED AS: | Annett v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 885 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – application in respect of pain and suffering damages only – reliance upon paragraph (a) of the definition – plaintiff has returned to employment – extensive video material of the plaintiff engaged in his present occupation as a dogman and driver – plaintiff working long hours – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr R Lewis | Maurice Blackburn |
| For the Defendant | Ms B Myers | Thomson Geer |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering only. In so doing, he relies upon paragraph (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
2 The injury relied upon is one to the plaintiff’s dominant right arm – see Transcript (hereinafter referred to as “T”) 2. It shall hereinafter be referred to as “the injury”. The injury occurred on 13 August 2012, when the plaintiff was moving timber decking whilst in the course of his employment, which was essentially that of a fitter and turner, although he also performed other duties. This shall hereinafter be referred to as “the accident”. At the time, his employer was Hardchrome Engineering Pty Ltd, hereinafter referred to as “Hardchrome”. At the outset, this matter was described by counsel as “a range case”. There is no dispute concerning the occurrence of the injury or the payment of benefits – see T7.
3 Mr J Richards QC with Mr R Lewis of counsel appeared on behalf of the plaintiff. Ms B Myers of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct, and was cross-examined. Along with counsel, I examined the plaintiff’s right arm in the vicinity of the biceps, where he has something which is referred to as “a Popeye” deformity, being a quite noticeable bump or lump of some magnitude and situated just above the elbow and below the biceps. There is no argument but that this is a consequence of the accident and is a feature of the injury.The balance of the evidence was documentary in nature, including extensive video material, and was tendered either by consent or without objection.
(The plaintiff’s background, education and employment prior to the injury b)
4 The plaintiff is aged 58 years, he having been born in 1961. He is a married man with three adult children. He left school at the age of 16 and commenced an apprenticeship as a fitter and turner, which apprenticeship he did not finish. He lived in Western Australia for a time. He worked mainly in physically demanding jobs, including that of a welder, a driver of tipper trucks at a nursery and maintenance work. His work prior to commencing with Hardchrome was welding. It would appear that he commenced working for Hardchrome on 22 June 2009.
(c) The plaintiff as a witness
5 Considerable video material was shown. This largely involved him engaging in his current employment with Clifton Formwork Vic Pty Ltd, which appears to be a very substantial entity engaged in civil construction. I shall refer to it hereafter as “Clifton Formwork”. The plaintiff has been employed by it since approximately January 2018. There is no secret as to this. The plaintiff has sworn to it in his affidavit of 25 February 2019 and in his recent affidavit of 29 November 2019. The potential credit issue involved in the video material relates to the employment activities in which he is seen to engage and the use of the right arm which is depicted. Whilst the plaintiff at times presented as essentially a straightforward witness, the question of the nature of his present work and his capacity to perform it is something of a major issue.
6 It should be said that the plaintiff’s work with Clifton Formwork is that of a truck driver, crane operator and dogman. The work of the dogman involves making signals to the crane driver and hooking up chains. This includes the packing of skids that go underneath the packs on the back of the semitrailer. In the estimate of the plaintiff, these weigh 3 or 4 kilograms. The plaintiff described the type of work which he does with Clifton Formwork at T39-43. For example, he stated that the heaviest thing he lifts in his current work probably weighs “15 kilos or so with my left arm” – CT 40.
7 I have had the opportunity of viewing the video material, both when excerpts were shown during the hearing and subsequently. There is no doubt but that the plaintiff is seen performing a lot of work, particularly associated with the preparation of a semitrailer attached to a prime mover. This is associated with the loading of the vehicle for the purposes of a delivery. The plaintiff is seen to be taking an active role in this over a lengthy period. He is not seen to be using his right arm above shoulder height on more than a couple of occasions. One of these is when raising both arms above his head apparently in a signal to a crane driver. Another is when he is apparently adjusting a chain, which in turn appears to be connected to a crane. In neither of these instances does the plaintiff appear to be doing anything particularly physically demanding above shoulder height, but there is no doubt but that his right arm is extended upwards and well above shoulder height.
8 I would also point out the following. On the extensive video material the plaintiff does not appear to be protecting or limiting the use of the right hand and arm to any significant degree, if at all. There is also no doubt but that the work which the plaintiff is seen to perform involves the handling of solid and lengthy pieces of timber. He does this with both hands and arms. There is no sign which I could detect of any inhibition or restriction in relation to the use of either arm whilst performing this heavy work of loading the semitrailer. Anyone observing the plaintiff engaging in this work for such a lengthy period would not detect that this was a person with an upper limb problem. Certainly, the plaintiff engages in very little activity in which his right arm is elevated above shoulder height, but that is to a very large extent due to the nature of the work which he is performing, which is almost entirely at below shoulder level and frequently on the tray of the semitrailer. The very nature of the work which the plaintiff is seen performing involves, amongst other things, the manoeuvring of lengthy and patently heavy planks of timber, frequently by bending from the waist and lifting one end of such planks using both hands and arms. In other words, quite a considerable portion of the work is performed below waist level when placing these lengths of timber in position on the tray of the semitrailer.
9 In summary, the extensive video material shows a person engaged for a lengthy period in heavy work which involved a lot of use of the upper limbs.
10 As shall be discussed, the plaintiff seems to have been less than accurate or forthright in relation to the amount of pain medication which he was in fact being prescribed. In his affidavit of 16 January 2019, he swore that he was seeing Dr Chan on a monthly basis in order to receive medication for his injuries. In cross-examination, he admitted that he was not being prescribed such medication. I would refer to T36. Such an admission in relation to what has been sworn in an affidavit has the potential to be damaging to credit.
(d) The state of the plaintiff’s health prior to the accident
11 The plaintiff freely admits that he has had a number of injuries over the years. Some of them, relating to matters such as back strains and shoulder pain, he could not specifically recall with any clarity. In 2002, he had neck and left arm pain, but this condition “came good” with radiofrequency denervation and osteopathic treatment. He has also had a fractured left ankle, but that healed. Some 10 or more years ago, he had a carpal tunnel issue, which does not seem to have caused any ongoing concern. After working on the Snowy Mountain Pipeline during the time of the severe bushfires in 2009, the plaintiff suffered severe dehydration and acute renal failure. He recovered from these conditions. At one stage, many years ago, he had an issue with drugs.
12 None of these matters seem to me to be particularly relevant in relation to his present injury or as being injuries or conditions relevant to any substantial interference with his lifestyle before or after the injury under consideration in August 2012.
(e) The injury, its treatment, diagnosis and related matters
13 The injury was sustained when the plaintiff was attempting to move timber decking whilst in the course of his employment with Hardchrome on 13 August 2012. Upon awakening the following morning, the pain in his right arm had worsened and he noticed that his right bicep appeared to have slipped down his arm, giving it a deformed appearance. He went to work and was sent to the preferred company doctor, Dr Bansal, in Mulgrave. Apart from providing a light duties certificate, she arranged an x-ray and ultrasound and referred the plaintiff to an orthopaedic surgeon, Mr Douglas Li, who is based at the Mercy Private Hospital in East Melbourne.
14 The x-ray and ultrasound of the right shoulder performed on 14 August 2012 revealed a full thickness tear of the biceps tendon and tendon fibres were seen distally in the bicipital groove. On this day, the plaintiff was in significant distress and was not able to work. On the following day, he consulted his usual doctor, Dr Raymond Chan, from the Temple Hills Medical Centre in East Doncaster.
15 The diagnosis of Dr Chan appears to have been that of a ruptured right biceps head. In his report of 4 September 2013, Dr Chan stated that the plaintiff was unlikely to be able to return to full power with his right arm. His surgeon had recommended that a maximal load for the right arm/biceps would be 8 kilograms. Dr Chan considered that the plaintiff was unlikely to improve significantly beyond this. A brief letter of 17 October 2019 from Dr Chan to the plaintiff’s solicitors indicates that the complete medical records of the plaintiff had been provided in February 2019 and since then there had been no change to his right biceps tendon rupture or its associated disability. There had been no change in the plaintiff’s treatment.
16 As sworn to in his affidavit of 25 February 2019, the plaintiff on a few occasions attended Dr Bansal. Whilst no report is in evidence from that doctor, it is apparent that, as stated above, Dr Bansal referred the plaintiff to Mr Douglas Li. Mr Li reported back to Dr Bansal on 4 September 2012. He had taken an appropriate history and had organised the x‑ray and ultrasound referred to above. He also arranged for an MRI scan of the plaintiff’s right shoulder, this being performed on 30 August 2012. The conclusion of the radiologist was that the plaintiff had a full-thickness tear of the long head of the biceps tendon with an associated subscapularis partial-thickness tear. Mr Li was of the view that surgical repair needed to be performed. He noted the Popeye deformity. Mr Li expressed the opinion that, given the plaintiff’s symptoms and his need to perform physical work, he required surgery in the form of a right-shoulder arthroscopic subacromial decompression with subscapularis tendon repair and long head of biceps tenodesis. He considered that the surgery should proceed comparatively rapidly, given that the rupture was already three weeks old.
17 Mr Li performed the surgery on 12 September 2012. It went smoothly and without complication. The operation report is quite detailed. Suffice to say that all matters went as planned and that the plaintiff was discharged the following day. His shoulder was to be immobilised for the following four weeks, after which time he could cease using the sling and commence active exercises. Some further restrictions were put in place, and the plaintiff was to attend physiotherapy. It was anticipated that he was unfit for work in any capacity for 12 weeks, and should then have nine months of gradually increasing light duties. Mr Li was hopeful that, after 12 months, the plaintiff could return to his pre-injury duties without restriction.
18 On 26 September 2012, Mr Li reviewed the plaintiff and reported back to Dr Bansal. At this stage, the plaintiff was well. He had mild pain. The wounds had healed nicely. He had good passive motion of the shoulder and elbow. A regime of exercises was envisaged. Mr Li next reported to Dr Bansal on 21 November 2012. The plaintiff had some discomfort and the rotator cuff and biceps were still weak. He was progressing as expected. He was to continue with exercises and physiotherapy and to attend a gymnasium and swim program. He was still unfit for work. Dr Li reviewed the plaintiff again on 6 February 2013, reporting to Dr Bansal on that date. It was now five months since the surgery. The plaintiff was making good progress. He had mild discomfort and good movement. He had been left with a Popeye deformity. This was irreparable. Mr Li anticipated that the plaintiff would lose approximately 20 per cent of his strength and in particular with forearm supination and, to a lesser extent, elbow flexion. He anticipated that this should be manageable. Exercises in physiotherapy were to continue. The plaintiff was fit for part-time work and for lifting up to 3 kilograms to waist level. Mr Li was to review the plaintiff after another three months and report, but whether or not this occurred is not clear and no further material from him was placed in evidence. I gather that the plaintiff was somewhat upset at the Popeye deformity and sought a second opinion.
19 That second opinion was from Associate Professor Martin Richardson, orthopaedic surgeon. Whilst his report of 16 October 2019 is described in the index of the Plaintiff’s Court Book as being a medico-legal report, in fact it is clear that Associate Professor Richardson was a treating doctor. In any event, the plaintiff was referred to him by Dr Chan. Associate Professor Richardson first saw the plaintiff on 19 June 2013. He was aware of the previous surgery. Upon clinical examination, the plaintiff had a full range of shoulder movement with mild tenderness noted over the anterolateral aspect of his acromion. Good strength was noted in the deltoid and rotator cuff muscles and an MRI scan was ordered. This was performed on 8 July 2013. Associate Professor Richardson reviewed the plaintiff on 29 July 2013. He recorded that the plaintiff was doing well in relation to his shoulder and was working hard with his physiotherapist to improve strength. The recent MRI scan demonstrated the known long head of biceps tear with evidence of tendinopathy in an intact supra and infraspinatus muscle tendons. No follow-up appointments were made.
20 In relation to the MRI scan, the actual conclusion of the radiologist was that the findings were in keeping with previous acromial resection. The long head of the biceps tendon was not identified in its superior aspect and was presumably completely disrupted. Subscapularis and infraspinatus tendons were atrophic and degenerate. The supraspinatus tendon also showed features of extensive tendinopathy with an extensive partial thickness tear of its superior surface. Whilst this is a longer conclusion, it is presumably in accordance with the summary of Associate Professor Richardson.
21 As regards treatment, the plaintiff also placed in evidence two reports from Mr Simon Cutler, physiotherapist. He treated the plaintiff after the surgery. In a brief report of 29 November 2012 to Mr Li, Mr Cutler described the plaintiff as progressing well. He was engaging in active assisted exercises, with the plan to progress to activity as pain would permit.
22 Mr Cutler reported again to the plaintiff’s solicitors on 2 October 2013. He gave a history of treatment. As at the date of this report, the plaintiff had full flexion, extension, abduction and external rotation of the shoulder. In a hand-behind-back exercise, he was 2 inches off full movement. When standing, the plaintiff’s shoulder was still anteriorly tilted, but it had improved markedly. At end-range flexion and extension, the scapula was over-rotated. On occasions, the plaintiff developed tightness to palpation in his upper trapezius and posterior rotator-cuff muscles. It was clear, using index and scale assessments, that the plaintiff had improved very considerably. For example, in relation to the plaintiff’s specific functional scale, he had improved from 9/60 as at 12 October 2012 to 52/60 as at 1 October 2013. There was also very considerable improvement in the upper-extremity function index. The current functional limitations due to the injury involved such things as starting a lawn mower, overhead activities, playing sports with his son and playing golf. He also had some difficulties in relation to lifting components up to put on the machines. He had adapted to using his left arm on most occasions. The plaintiff had progressed well throughout his rehabilitation and this was reflected in his improved range of motion, strength and biomechanics. Treatment was now focusing on improving the small postural and biomechanical deficits to improve shoulder function. Measures included specific strengthening, postural taping and releasing of the appropriate muscles of the joints. The plaintiff was working his normal hours. He was operating a grinder and laser welder and generally was able to do this without problems, except for an ache in the biceps region which did not stop him. Mr Cutler noted that the plaintiff had been advised by Mr Li that he would only get back 80 per cent of his shoulder strength due to the biceps rupture and that he was not to go back to his old duties. With decreasing physiotherapy, a guided exercise program was recommended.
23 As is apparent, the above report is now well over six years old. Indeed, apart from the actual medical records of the clinic at which he is based, the only recent report of a treater put in evidence is a very brief one of Dr Chan. It is dated 17 October 2019. All it states is that, since the medical records were supplied in February 2019, there had been no change to the plaintiff’s right biceps tendon rupture and its associated disability. Those records were placed in evidence. They reveal that, since December 2015, the plaintiff has only been seen once by Dr Chan. That was on 7 August 2017 and was in relation to a rash and tenderness on the right biceps. The plaintiff’s range of movement was found to be full. His work involved moving dies and manual labour. In addition, there had been “no change in materials or work”. The notes reveal a phone call on 25 January 2019, but that related to consent in relation to the provision of medical information to the plaintiff’s solicitors.
24 The plaintiff has also been seen for medico-legal purposes. At the request of his solicitors, he was seen by Mr Ash Moaveni, orthopaedic surgeon, on 15 July 2019, Mr Moaveni reporting three days later. To Mr Moaveni, the plaintiff stated that he had significant ongoing pain and weakness in the right arm, despite continued home exercise programs. The pain is present most days, with a background of a dull ache and at times burning. It increases with certain activities. It also affects his ability to sleep to a significant degree. Mr Moaveni observed that the long head of the biceps had dropped and that there was a significant level of weakness in the arm, with pain, more so in supination of the forearm. As one might expect, the diagnosis was of a long head of biceps rupture in the right shoulder, with failed tenodesis. There was also a partial-thickness tear/tendinopathy of the right shoulder, supraspinatus and subscapularis, the words “rotator cuff tendons” being added in brackets.
25 Mr Moaveni described the injury as being permanent, noting that the plaintiff may require ongoing physiotherapy, gymnasium and pool strengthening programs in the future. He implicated the accident. Mr Moaveni raised the possibility of the development of rotator cuff arthritis, although commenting that this occurs in some individuals. He also raised the possibility of the plaintiff’s secondary muscles decompensating over time, resulting in increasing pain, fatigue and loss of function in the arm. He again referred to the fact that the plaintiff had significant ongoing pain, including a background dull ache with intermittent cramping and stabbing pain. There was also weakness in the right upper extremity. The pain was worse with repeated use of the arm and overhead activities. The plaintiff stated that his sleep was impacted, causing him to wake up several times during the night because of pain in the right arm. There was also interference with the his ability to carry out domestic, recreational and social activities. He had difficulties with home and car maintenance and could not use a chainsaw. He needed assistance with shopping and was unable to ride on his motorbike or play golf. In relation to employment, the plaintiff was unable to perform repetitive, pulling, pushing and overhead-loading-type motions with the right arm and had to modify some of his actions in order to compensate for this. Mr Moaveni was of the opinion that no further surgery will improve the plaintiff’s pain or overall right upper-extremity function. Treatment by way of physiotherapy, massage and a gymnasium strengthening program may be of benefit in order to maintain the plaintiff’s current level of function.
26 The defendant also has had the plaintiff examined. A somewhat dated report from Dr Chris Baker of 23 December 2012 was put into evidence. This seems to relate to some extensive degenerative changes in the plaintiff’s cervical spine and the fact there was interference with his employment in 2002. Whilst there is a passing reference to pain and a tingling sensation in the right arm, this report does not really take matters any further.
27 Dr Malcolm Brown, occupational physician, examined the plaintiff at the request of the defendant on 20 October 2015. Dr Brown took a history that the plaintiff had returned to work after surgery, and had been working with restrictions of no work above shoulder level and no lifting of more than 10 kilograms. It is to be remembered that the work situation described was as at October 2015. The history taken by Dr Brown included that the surgery had given a good result and, as at that date, the plaintiff had difficulty with heavy manual tasks only. He had trouble with heavy weights and work above shoulder level, but could manage all day-to-day activities with little difficulty. This included driving his car, lifting some shopping and doing household chores. He noted in passing that the plaintiff had suffered a myocardial infarction a few months earlier and had been off work as a result. Indeed, he was off work when seen by Dr Brown. Dr Brown expressed the opinion that the plaintiff had suffered a rotator cuff and biceps lesion of the right shoulder. He implicated employment. He thought that the plaintiff had a capacity to return to pre-injury hours, but not completely to unrestricted pre-injury duties. He also had the capacity to perform other types of work. I might say that Dr Brown, being an occupational physician, was directing a considerable part of his attention to capacity for employment. In any event, Dr Brown also expressed the opinion that the plaintiff did not require any continuing treatment. He thought that the surgery had had a good result and that the plaintiff had quite good functional capacity. He had been able to continue with work, doing all but the heaviest manual tasks and his condition appeared to be quite stable. Dr Brown did not believe that the plaintiff’s work capacity was likely to change significantly in the future.
28 The plaintiff was seen by Dr David Fish, occupational physician, on 4 April 2014. This was also at the request of the defendant and seems to have been largely directed to the assessment of permanent impairment in accordance with the AMA Guides. The report of Dr Fish, whilst addressed to the defendant and doubtless arranged by it, was in fact put in evidence by the plaintiff. The plaintiff said to Dr Fish that he had resigned from working with Hardchrome because he was asked to do overhead work, in relation to which he was restricted. His main complaint when seen by Dr Fish seems to have been of a cramping pain over the biceps with lifting, pain on external rotation and weakness with lifting and pain over the lateral elbow (restrictions and symptoms not evident in the lengthy videos). The only medication which the plaintiff was taking was Panadeine Forte about once per month. He was having no other treatment. There were various things which he was unable to do, such as mow the lawns, use the chainsaw, clean the gutters and the like. Dr Fish noted that the plaintiff was suffering from the residual effects of a rotator cuff tear surgically treated, a ruptured long head of the biceps, axillary nerve injury and an AC joint resection. He was prepared to make an assessment of permanent impairment, which, effectively, he put at 14 per cent of the right upper extremity.
29 A much more recent report obtained by the defendant is that of Dr Simon Journeaux, orthopaedic surgeon. This report is dated 23 April 2019 and was also put in evidence by the plaintiff. Dr Journeaux took an appropriate history. He noted the obvious Popeye deformity. In relation to his current complaints, the plaintiff described a constant pain in the cape area of the right shoulder in the form of a dull ache with sharp aggravations that vary between 6-7/10. He described his symptoms as being aggravated by overhead and over-shoulder positioning, lying on the shoulder and by repetitive movements. He used Panadol intermittently. He also described some pain in the area of the failed biceps tendon rupture and in the area of the right elbow.
30 The plaintiff informed Dr Journeaux that he was now working as a truck driver/crane operator in a lighter role. He claimed to have difficulty tying down loads. He had moderate difficulty in relation to showering, dressing and the domestic activities of daily living. He was unable to do gardening tasks. He was unable to pursue certain active recreational pursuits. Dr Journeaux noted that, for the purposes of clinical examination, the plaintiff was able to remove his upper garments without any difficulty. Amongst other limitations observed upon examination, Dr Journeaux noted that the plaintiff had reduced power of elbow flexion in the order of 20 per cent, commenting that this was as to be expected. There was a mild reduction in strength in the rotator cuff partly secondary to pain.
31 Dr Journeaux reviewed and summarised the medical reports which had been forwarded to him, also making some references to the records of the general practitioner, Dr Chan. In his conclusion, Dr Journeaux diagnosed a rupture of the long head of the biceps tendon, this occurring in the presence of pre-existing age-related degenerative change. He thought that the plaintiff had appeared to get a poor result from the surgery, given that he had some ongoing symptoms and that there was evidence of measurable impairment. He thought that the plaintiff was unlikely to improve for the foreseeable future and was of maximal medical improvement. He noted that the injury did affect the plaintiff’s enjoyment of life and daily activities and that he was able to work as a crane driver/truckdriver, being able to perform those duties, with some difficulties in tying down loads.
32 There is little dispute concerning the diagnosis in this matter. The plaintiff suffered a rupture of the long head of the biceps tendon. There was an associated subscapularis partial-thickness tear. In relation to surgery performed, there has been a failed tenodesis, meaning that he has been left with the Popeye deformity and something in the order of 20 per cent loss of strength in his dominant right arm.
33 Radiological investigations revealed that there were some degenerative changes of the acromioclavicular joint. However, it is not suggested that the plaintiff suffered from symptoms or restrictions in relation to his right arm, and more particularly his right upper arm and shoulder, prior to the accident.
34 Similarly, it is not argued that the plaintiff suffers consequences of a psychological or psychiatric nature. Any such consequences will not be taken into account, but none would appear to exist.
35 Further, I am satisfied that the consequences of the plaintiff’s injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Mr Moaveni stated that no further surgery will improve the plaintiff’s pain or overall right upper extremity function. Dr Journeaux is of the opinion that the plaintiff is unlikely to improve for the foreseeable future. He is stable and at maximum medical improvement. Dr Fish considered the plaintiff’s impairment to be stabilised within the meaning of the AMA Guides.
Other developments since the injury
36 It is to be remembered that the plaintiff suffered the injury on 13 August 2012. It would appear that he returned to part-time restricted duties with Hardchrome in February 2013. His working hours gradually increased until he was working normal hours, but on some alternative duties. Because of some dispute or confusion about his leave entitlements, ultimately he was re-employed by Hardchrome in a casual capacity, mainly doing driving work, which was less physical than his pre-injury duties. His work with Hardchrome ceased in approximately January 2018. This seems to have coincided with the offer of a job with Clifton Formwork. His work with that entity appears to be categorised as a truckdriver/crane operator. It is evident from the video material that the work can also involve the arranging and tying down of large lengths of timber.
37 In relation to his health generally, it would appear that, since the injury, the plaintiff has suffered a cardiac episode. I would refer to T37-8. I do not regard this as being of any great relevance. However incapacitating it may have been at the time, there is no argument but that the plaintiff has been able to continue with the duties which he is currently performing. In addition, there is little helpful information available concerning it.
Ruling
38 Whilst the plaintiff suffered a nasty injury which incapacitated him for quite a period, and whilst he has had some consequences of that injury which could be described as significant or marked, I am not of the view that they could be described as being at least very considerable. I have come to that conclusion for the following reasons, which are not set out in order of importance.
(a)In the last seven years, the plaintiff has had minimal treatment. He last saw the operating surgeon, Mr Douglas Li, on 6 February 2013. It is to be remembered that the surgery was performed on 12 September 2012. On 6 February 2013, Mr Li reported that the plaintiff had made good progress. He had mild discomfort and good movement. The long head of biceps tenodesis had failed and the plaintiff had a Popeye deformity, which is not reparable. In the opinion of Mr Li, the plaintiff had lost approximately 20 per cent of his strength and in particular with forearm supination. In the opinion of Dr Li, this should be manageable;
The surgeon whom the plaintiff consulted in order to get a second opinion, Mr Martin Richardson, saw the plaintiff twice, the second occasion being 29 July 2013. On that occasion, he noted that the plaintiff was doing well in relation to his shoulder and was working hard with his physiotherapist to improve strength. A fresh MRI scan demonstrated the known long head of biceps tear with evidence of tendinopathy. No follow-up appointments were made.
There is no report from Mr Cutler, the plaintiff’s physiotherapist, since 2 October 2013. In that report, he recorded that the plaintiff was working his normal hours and generally with no problems, except for an ache in his biceps region which does not stop him. Mr Cutler agreed with Mr Li that the plaintiff would only get back 80 per cent of his shoulder strength. He believed that the plaintiff should have an ongoing guided gym program and physiotherapy. Currently, the plaintiff has had no treatment from any physiotherapist for five years.
The plaintiff’s treating general practitioner has been Dr Chan. His clinical notes indicate that he has seen the plaintiff only once in the last four-and-a-half years. That seems to be because of a rash on the right biceps, as well as tenderness, the plaintiff making the observation that it “feels funny”. Dr Chan recorded that there was no bruising, swelling or redness and that there was a full range of movement. He also noted that the plaintiff had been working, moving dies and performing manual labour.
In summary, over at least the last five years, the plaintiff has been in receipt of virtually no relevant treatment;
(b)The amount of medication taken by the plaintiff is not entirely clear. However, he gave evidence that the last time he obtained a prescription for medication was before he started work with his present employer – that is, at least two-and-a-half years ago. I would refer to T32. Of course, given what is contained in the records of Dr Chan, there has been no prescription of relevant medication for a much longer period than that. The plaintiff has sworn in his most recent affidavit that prescription medications were provided in years such as 2016 and 2018, although attendances may not have specifically related to his right arm. That assertion is made in relation to the prescriptions being supplied by Temple Hills Medical Centre where Dr Chan is based. Of course, as stated, the records of that clinic have been put in evidence and do not indicate this. I note that in the history obtained by Dr Journeaux in 2019, the plaintiff referred to the “intermittent use of Panadol”. It may be that the plaintiff obtained prescriptions for Panadeine Forte from “the hospital”, but that would appear to have been many years ago – see T31-2. In his affidavit of 25 February 2019, the plaintiff has sworn that he took some painkillers prescribed for other family members, but avoided medications as best he could. He also referred to the rubbing in of “Deep Heat”. In his most recent affidavit of 29 November 2019, he has sworn to taking two Panadol tablets after a days’ work and more on a bad day. Unless his condition has deteriorated, this does not sit particularly well with the history given to Dr Journeaux of the “intermittent use of Panadol”.
The bottom line is that for some years the plaintiff has been taking no prescription medication and I have some doubts as to the frequency of or level of consumption of Panadol. Certainly, the assertion contained in the plaintiff’s second affidavit (16 January 2019) that he sees his general practitioner, Dr Chan, on a monthly basis to receive medication in respect of his injuries would appear to be quite erroneous. Further, I would refer to the following cross-examination concerning what is contained in the affidavit of 16 January 2019 in relation to seeing Dr Chan on a monthly basis in order to receive pain medication:
“16 January 2019. You knew that you weren’t being prescribed pain medication for these injuries?---No, I wasn’t – yeah. Okay.” – see T36.
(c)I appreciate that there is no application in respect of loss of earning capacity, but the plaintiff’s working hours and activities can be of relevance in relation to pain and suffering. The plaintiff’s normal working week is one of 56 hours. Sometimes it is longer, if he starts work at 6.00am instead of 7.00am. His standard 56 hour week seems to consist of five week days from 7.00am to 5.00pm and six hours on a Saturday. Sometimes, however, he commences on a weekday at 6.00am. That is a long working week, with at least some of the duties, as seen on the videos, being quite physical in nature and being carried out for comparatively lengthy periods. In short, the plaintiff is working very long hours in what can be a physically demanding job involving the repeated use of both arms.
(d)The video material shows a person using both hands and arms to lift and manoeuvre patently heavy and awkward lengths of timber whilst in the process of loading a semitrailer. In other words, it is not just that the plaintiff has demonstrated his capacity to work long hours and engage in physically demanding tasks. He is seen to be engaging in tasks which specifically require a lot of use of both the right and left arms. True it is that the overwhelming majority of these tasks are performed with the arms being used below shoulder level. Planks are lifted, lined up, placed in position, fastened down on the tray of the semitrailer and the like, the plaintiff bending, lifting, as well standing up and moving around in an upright position during this process. However, when the plaintiff is required to raise both arms above shoulder height, he demonstrates a capacity so to do without any apparent disability or restriction. In short, the videos show a man working hard and doing such things as manoeuvring timber while standing on the tray of the vehicle, placing a chain around the timber (performing this task with another person), climbing up the side of the tray, manoeuvring the load and the like. All of this is done without any indication of a disability. Even allowing for the proposition that the plaintiff has only retained 80 per cent of the strength of the arm and has a 20 per cent impairment, the work that he is seen to perform is not consistent with a person having an impairment or loss of a body function which could be fairly described as being more than significant or marked and as being at least very considerable.
I would also point out that the plaintiff stated that, at least in 2018, he was performing work where it was forbidden for him to take prescription drugs. It is also apparent from the surveillance videos that, at least on one occasion, the plaintiff was able to lift metallic mesh with his right arm. It was also conceded that he could lift a weight of 24 kilograms. I would refer to T59 and T65.
(e)The plaintiff’s position is not improved by matters relating to credit, some of which have been discussed previously. For example, I would refer to the plaintiff’s swearing in his original affidavit of 16 January 2019 that he was seeing Dr Chan on a monthly basis to receive medication in relation to his injuries and his subsequent efforts to rectify what was clearly a false or erroneous assertion. I would refer again to the apparent admission by the plaintiff that he knew on 16 January 2019 when he swore the second affidavit that in fact he was not being prescribed pain medication for the relevant injuries – see T36. In summary, in some aspects of his evidence, including that contained in the affidavits, the plaintiff has been demonstrated to be not completely reliable, if not unreliable in relation to matters such as medication and frequency of complaint to his general practitioner.
(f)Whilst I accept that there has been some interference with the plaintiff’s life away from work, my opinion is that this is not of sufficient significance to tilt the balance in his favour. It is to be remembered that he is working 56 or more hours per week and on six days. I agree with the submission on behalf of the defendant that it is clear that the plaintiff remains capable of very significant manual work, and for more hours than he was undertaking before he suffered the injury. I find it difficult to accept that such a person would have difficulty in pushing a vacuum cleaner or lifting groceries. It may be that he has some problems in relation to golf, but the level of his involvement before he was injured seems to have been a social game approximately once a month. It may also be that there is some interference with sleep, although this does not appear to have been of sufficient magnitude for him to mention it in great detail to his treating general practitioner. On 17 August 2015 the plaintiff was recorded as sleeping well. On 7 September 2015, Dr Chan recorded that the plaintiff had slept well. The last occasion upon which Dr Chan is recorded in the clinical notes as seeing the plaintiff was on 7 August 2017. Whilst the plaintiff complained of a right biceps rash and tenderness and stated that he “feels funny”, there is no reference to any interference with sleep. In summary, particularly bearing in mind the hours that he works and the work which he performs, and in addition the problems with his reliability as a witness, and his minimal treatment in recent years, I am of the view that such problems are of sufficient weight to cause the plaintiff to fail to discharge the burden of proof.
Conclusion
39 The plaintiff has failed to discharge the burden of proof. His application is dismissed. I shall hear the parties as to an ancillary orders that are required.
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