Apostolakis v Victorian WorkCover Authority
[2022] VCC 1696
•18 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-00618
| VASSILIOS APOSTOLAKIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2022 | |
DATE OF JUDGMENT: | 18 October 2022 | |
CASE MAY BE CITED AS: | Apostolakis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1696 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left shoulder – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Aravena v Victorian WorkCover Authority [2021] VCC 2010; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to issue proceedings for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms V C McLeod | Slater and Gordon Ltd |
| For the Defendant | Ms C Spitaleri | IDP Lawyers |
HIS HONOUR:
1The plaintiff, Vassilios (Bill) Apostolakis was injured on 2 December 2014 in traumatic circumstances during the course of his employment with Welco Industrial Rubber Prod Pty Ltd (“Welco”) as a polyurethane processor and labourer. Whilst operating a lathe, the knife he was using caught and a polyurethane brush struck his left arm at high speed.
2Mr Apostolakis suffered a comminuted intra-articular fracture through the left humeral head extending to the proximal humeral shaft of his left shoulder, with associated muscle and tendon damage, requiring three operations. He was 34 years old at the time of the injury.
3He brings this application for leave, pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), to issue proceedings for damages against his employer in respect of the injury sustained by him in the course of his employment, under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences. The body function relied upon is the left shoulder.
4Most of the issues in dispute between the parties have been resolved by the Medical Panel in its opinion dated 1 December 2021, with associated reasons.[1]
[1]As to the effect of the Medical Panel Opinion, see Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35.
5It is not in dispute that Mr Apostolakis injured his left shoulder on 2 December 2014 in compensable circumstances in the course of his employment with Welco; that his medical condition is permanent; that he is incapacitated for his previous employment; or that he has retained a capacity for suitable alternative (lighter) employment on a full -time basis.
6The residual question for the Court to determine is whether the consequences to Mr Apostolakis, with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked” and as being “at least very considerable”, in accordance with the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
7The relevant legal principles in this application are not in dispute, including the principles in Haden Engineering Pty Ltd v McKinnon[2] and Dwyer v Calco Timbers Pty Ltd (No 2)[3] as to the factors indicative of serious injury; and Kelso v Tatiara Meat Co Pty Ltd,[4] where the Court of Appeal stated that the endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a very real prospect of a “very considerable” consequence.
[2](2010) 31 VR 1
[3][2008] VSCA 260
[4][2007] VSCA 267
8For the reasons that follow, I find that Mr Apostolakis satisfies the test set out in the Act of serious injury to his left shoulder having regard to:
(a) the extensive treatment both surgical in nature and conservative, extensive pain management, and self-management;
(b) the loss of capacity to perform his pre-injury work as a result of the injury;
(c) the presence of constant, mild residual pain, which increases with exposure to cold and activity. The pain is only mild due to the effects of opioid-based medication, which he will require on an ongoing basis. Without it the pain is disabling;
(d) the other permanent impacts on his domestic activities and hobbies, and disruption to his sleep; and
(e) the relatively young age at which the injury was sustained, and thus the long-term consequences for Mr Apostolakis.
The evidence
9As is usual in applications of this type, Mr Apostolakis was the only witness called, and he was cross-examined. In addition to the plaintiff’s affidavits sworn 22 September 2020 and 20 July 2022 in support of his application, the parties tendered various medical material. I have read all the tendered material.
Background
10Mr Apostolakis was born in January 1980 in Melbourne. Since leaving high school after Year 11, and completing a Certificate I in Mechanical Manufacturing, he had a stable work history until his injury in December 2014.
11In around 1998, he commenced full-time work manufacturing partitions with Schiavello Furniture, where he remained for about three years. He then worked at Rubbertech from 2003 until about 2009, only leaving because the business relocated too far away for him to travel from his home in Taylors Lakes.
12In 2009, Mr Apostolakis commenced working for Welco Industrial Rubber (“Welco”), the employer relevant to this proceeding. Mr Apostolakis was employed as a polyurethane processor and labourer, which involved mixing large amounts of polyurethane, pouring moulds, and cutting the polyurethane to size, including on a lathe. It was hands-on physical manufacturing work. He was regarded as a good employee.
Previous medical history
13On 3 July 2001, Mr Apostolakis was involved in a motor vehicle accident whilst travelling as a back-seat passenger. He attended Western General Hospital where an x-ray disclosed a fracture through the surgical neck of his left humerus.[5] A sling was fitted, and Mr Apostolakis was provided with analgesia and then discharged. Mr Apostolakis’ unchallenged evidence was that this fracture did not cause him ongoing pain or impediment.
[5]Defendant’s Court Book (“DCB”) 116
14Mr Apostolakis has battled a heroin addiction since his late teens or early twenties. To his credit he has successfully managed this addiction, including through participation in a Suboxone program since 2003, which allowed him to work successfully at close to full-time capacity as a labourer in the rubber or polyurethane industry for more than ten years prior to his injury.
The injury
15On 2 December 2014, Mr Apostolakis was cutting polyurethane on a lathe at Welco. The process involved polyurethane product spinning on a mandrel whilst being cut using a hand-held knife. The knife being used by Mr Apostolakis caught hard on the polyurethane causing his left arm to jolt severely, and the polyurethane “smashed his arm”. The impact fractured the head of his left humerus and damaged the shoulder muscles and tendons. Mr Apostolakis was taken to the Western Hospital directly after the incident.
16Mr Apostolakis is right-hand dominant.
17Nine days later, on 11 December 2014, Mr Apostolakis underwent the first of three operative procedures to his left shoulder. This surgery at the Western Hospital involved an open reduction and internal fixation of the fracture. The injury also required a bone graft and repair of the damaged tendons. He had physiotherapy and rehabilitation through the hospital, and saw his local doctor, Dr Kathryn Rainsford.
18Mr Apostolakis continued to suffer ongoing pain and restriction. As a result:
(a) on 25 May 2015, orthopaedic surgeon Mr Audi Widjaja performed a second surgery to remove the metal from Mr Apostolakis’ left shoulder and arm; and
(b) on 1 July 2017, Mr Widjaja performed a third and final surgery on Mr Apostolakis, involving a left shoulder arthroscopy, subacromial decompression, synovectomy and manipulation under anaesthetic.
19Following the third and final surgery, Mr Apostolakis has continued to suffer pain in his left shoulder but managed this conservatively, with medication and physiotherapy.
20Mr Apostolakis commenced physiotherapy with Mr Marcus Emmett on 19 March 2015, and underwent extensive treatment. In a report to the plaintiff’s solicitors dated 25 May 2021, Mr Apostolakis’ general practitioner Dr Kathryn Rainsford evaluated the effectiveness of the physiotherapy since the removal of the metal, noting that:
“Further regular physiotherapy since that time has resulted in some improvement in range of movement but still significantly less than normal.”[6]
[6]Plaintiff’s Court Book (“PCB”) 78
21Mr Apostolakis gave evidence that since his entitlements to medical and like benefits were terminated recently, he no longer attends on Mr Emmett due to the prohibitive cost. He continues to undertake physiotherapy exercises taught to him at home.
22In 2018, as a result of continued pain and discomfort following the third surgery, Dr Rainsford referred Mr Apostolakis to Advance Healthcare to undertake a multi‑disciplinary pain program. He underwent a preliminary assessment with Dr Malcolm Ong (pain management consultant), Mr Daniel Di Mauro (physiotherapist) and Ms Joanna Paterson (psychologist) on 27 March 2019.
23Mr Apostolakis provided a comprehensive account of his symptoms to Advance Healthcare, who noted the following symptoms:
“Mr Apostolakis reported the main problem as being the left shoulder. The symptoms were described as:
· Constant proximal arm, clavicle and superior shoulder ache rated as 2-5/10. This radiates to:
o The left cervical spine, upper trapezius and medial scapula as an intermittent tightness and stiffness (“muscle cramps”) rated as 5-7/10
o The left forearm, hand and fingers (glove distribution) as an intermittent ache rated as 3/10.”[7]
[7]PCB 85
24Mr Apostolakis gave a history that:
(a) he usually slept for 3 to 5 hours, waking once or twice during the night because of pain, and felt increased pain and stiffness upon waking;
(b) he was unable to do heavy housework or gardening and described difficulty with reaching forward or above his head with his left arm;
(c) his medication at the time of the assessment was:
(i)Panamax 500 mg, 4 to 6 tablets per day;
(ii)Voltaren 25 mg, 2 tablets weekly;
(iii)Suboxone 8 mg, 1 sublingual film per day.
25On the advice of Dr Ong, Mr Apostolakis changed his medication to Endep 10 mg, 2 tablets per day and a reduced dosage of Suboxone (either 4 mg or 6 mg per day). Mr Di Mauro recorded[8] that Mr Apostolakis reported an improvement in his pain and function since commencing the program, which he attributed to the medication changes. Mr Di Mauro noted that he “still occasionally experiences episodes of pain with overactivity”.
[8]Dr Di Mauro, report dated 10 February 2020, PCB 95
26Mr Apostolakis was discharged from the Advance Healthcare pain management program on 26 August 2019, but continued to consult Dr Ong into 2021, until Dr Ong left the clinic.
27Mr Apostolakis’ treating doctors have expressed concern about the likelihood of his condition deteriorating, including that:
(a) there is a likelihood that Mr Apostolakis will develop osteoarthritis, and be vulnerable to cervical spine stiffness due to overcompensation that results from the limited left shoulder motion;[9]
(b) there is a long-term risk of secondary osteoarthritis and chronic pain.[10]
[9]Mr Emmett, report dated 9 May 2016, PCB 49
[10]Dr Rainsford, report dated 23 February 2017, updated 1 June 2017, PCB 76
The Medical Panel Opinion
28Mr Apostolakis was examined by the Medical Panel on 3 and 23 November 2021. On 1 December 2021 the Medical Panel handed down its opinion. I am bound by the findings set out in its Certificate of Opinion.[11]
[11]DCB 4
29The Medical Panel concluded that:
(a) Mr Apostolakis was suffering from “mild residual dysfunction of the left shoulder secondary to a comminuted intra-articular fracture of the left humeral head and proximal humeral shaft”;
(b) the condition was materially contributed to by the injury at work;
(c) the condition was permanent;
(d) Mr Apostolakis was not able to return to his pre-injury employment due to the repetitive and heavy nature of the work; and
(e) Mr Apostolakis had capacity for suitable employment on a full-time basis.
30Mr Apostolakis described to the Medical Panel limited range of motion in his left shoulder, pain in his left shoulder that is aggravated after use (such as when gold prospecting) and muscle tightness when he goes for long drives. The Medical Panel recorded:
“The Plaintiff told the Panel that he has “no pain since taking Endep” telling the Panel that his most significant problem is the muscles on the left side of his neck and what he demonstrated to be the left suprascapular region being “always tight”. He said the left shoulder is “not bad unless I do too much with it”. He said he “doesn’t want to flare it up or over use it”. He also described restricted left shoulder range of motion. He said that if he sleeps on his left shoulder it “wakes” him. He described aggravation of left shoulder pain following using a pick when metal detecting. He described increased pain in his left shoulder following lawn mowing telling the Panel that he no longer mows lawns. He said pain is worse following heavy and repetitive lifting when “moving stuff around”. He said he does not have pain at the time but experiences pain afterwards.”[12]
[12]Medical Panel Reasons for Opinion, DCB 12
31In cross-examination, Mr Apostolakis denied telling the Medical Panel that he was pain-free since commencing Endep. When pressed by counsel for the defendant, Mr Apostolakis said:
A:“I didn’t say there’s no pain since taking Endep.
Q:All right. So is the situation that the pain is now manageable with Endep?
A:Yes.
Q:And it’s just a slight little aching pain?
A:It’s always there, yes.
Q:And it’s slight?
A:It’s slight, but it can get strong.”[13]
[13]Transcript (“T”) 10, Line/s (“L”) 23-29
32The Medical Panel noted that they observed Mr Apostolakis “freely” gesticulating throughout the examination. They did not consider that he displayed any signs of pain or restricted movement. The Medical Panel also noted “bilateral staining and callosity” on Mr Apostolakis’ hands, which they suggested indicated recent extensive use. They also did not find any muscle wastage in the left upper limb or shoulder. In light of this, the Medical Panel did not consider Mr Apostolakis’ symptoms to be as significant as he was describing.
The plaintiff’s histories to medico-legal consultants
Associate Professor Anthony Buzzard, surgeon
33Associate Professor Anthony Buzzard examined Mr Apostolakis on 4 February 2019 and prepared a report dated 5 February 2019.
34Mr Apostolakis described his pain to Associate Professor Buzzard as a constant aching pain, and said that he suffered cramping in his shoulder, pins and needles in his left arm and sometimes in the tips of his fingers in his left hand.
35Associate Professor Buzzard diagnosed Mr Apostolakis as having a fracture of the left humerus complicated by the development of marked capsular contraction of the left shoulder and degenerative disease of the left shoulder. He considered that the degenerative disease was worsening, that he may require further surgical treatment in the future, and that continued physiotherapy and pain medication was necessary.
Mr Ash Chehata, orthopaedic surgeon
36Mr Ash Chehata examined the plaintiff in June 2021, and noted:[14]
“... a significant loss of internal and external rotation and this correlated to progressive degenerative change in the proximal humerus, as a result of the progressive intra-articular nature of the humeral fracture that required multiple operative interventions.”
[14]Report dated 16 June 2021, PCB 103
37Mr Apostolakis gave a history to Mr Chehata that he had given up household chores, but continued to do some gardening. He noted having completely given up on gold prospecting at the time, and that he was struggling to gain employment as a result of no longer being able to perform repetitive lifting.
38Mr Chehata opined that Mr Apostolakis’ prognosis was poor. He canvassed the extensive surgical and non-surgical treatment pursued by Mr Apostolakis, and noted that since the final surgery Mr Apostolakis had continued physiotherapy treatment with:
“no significant gains and if anything, he noticed continual muscle spasms across the trapezial musculature, as well as across the scapula spine and all down the left arm.”[15]
[15]Ibid, PCB 102
39In Mr Chehata’s opinion, Mr Apostolakis may require a shoulder replacement in the future, with potential for complication including infection.
Dr John Gill, consultant forensic and general psychiatrist
40Mr Apostolakis was examined on 9 June 2021 by Mr John Gill, who produced a report dated 17 June 2021.
41Dr Gill’s report records a history that:
(a) as a result of his injuries, Mr Apostolakis is restricted in elevating his left arm and his arm is painful at night;
(b) the pain program with Dr Ong had been helpful;
(c) a medication change had been “very effective” in controlling his pain, and Mr Apostolakis described his pain symptoms as “manageable” as a result of the Endep.
42Mr Apostolakis also expressed to Dr Gill a desire to return to work, but noted that no work was available to him.
Dr Dominic Yong, occupational physician
43Mr Apostolakis was examined by Dr Dominic Yong on 14 July 2021. Dr Yong produced a report of the same date. Mr Apostolakis told Dr Yong he was “troubled” by persistent left shoulder and arm pain that he continued to suffer after the third surgery, which had prompted the referral to pain specialist, Dr Ong. He described continued pain in his left upper arm which radiated to his shoulder and neck; a reduced range of movement in his left shoulder; and occasional tingling in his left hand. He recounted that his treatment at the time included Endep 15 mg, daily; Panadol Osteo, Mobic and Voltaren, as required; and physiotherapy exercises at home.
44On examination, Dr Yong noted:
“There was wasting noted of the left shoulder over the supraspinatus. There was no swelling noted. There was tenderness with palpation over the scars and laterally.
…
Examination of the neck revealed some tenderness over the left base and posteriorly. The range of movement was normal.”[16]
[16]PCB 123
Dr Reza Sabetghadam, occupational physician
45Mr Apostolakis was examined by Dr Reza Sabetghadam, occupational physician, at the request of the defendant’s solicitors. Dr Sabetghadam provided three reports: a primary report dated 24 March 2021, and two supplementary reports dated 9 April 2021 and 2 July 2021 respectively.
46Mr Apostolakis described his pain to Dr Sabetghadam in the following terms:
“Mr Apostolakis reported that he has restricted range of motion of left shoulder. He has pain in the area between the left shoulder and neck, sometimes cramps, and he said in the mornings sometimes he has pins and needles in the last two digits of the hand. He said pain in the left shoulder is exacerbated with cold, certain movement and also lying on the left side.”[17]
[17]DCB 54
47Dr Sabetghadam noted:
“Mr Apostolakis developed restricted range of motion of left shoulder following this surgery and immobility for a prolonged period. Some muscle wasting in left upper trapezius and supraspinatus muscle area which could be related with lack of use of left upper limb.”[18]
[18]DCB 55
Mr John Salmon, orthopaedic surgeon
48Mr John Salmon examined Mr Apostolakis at the request of the defendant’s solicitors in June 2021, and also observed muscle wasting and other objective signs on examination:[19]
“He had deltoid wasting when compared to the opposite side. There was mild tenderness to deep palpation anteriorly ... He had slightly altered sensation in the axillary nerve distribution on the left when compared to the right.”
[19]Report dated 29 June 2021, DCB 64
49Mr Apostolakis told Mr Salmon that over the last few years he felt that he had made “no progress, but no deterioration”. He described a constant “tight band-like pain” in the shoulder, which would sometimes radiate down the arm to the elbow. He reported sometimes suffering pain in the superior shoulder, which he described as spasm-like. He also told Mr Salmon that he suffered a throbbing pain in the left arm during the night.
Current treatment
50He is currently prescribed:
(a) Endone (20 mgs) at night, an increase from 10 mgs in 2020;
(b) Panadol Osteo (2 per day);
(c) Mobic (on demand for flare-up problems).
51He also regularly rubs Deep Heat or Voltaren Gel into the shoulder which helps the pain. Despite the level of medication, however, and his current dose of 6 mg Suboxone which also acts as a painkiller, Mr Apostolakis is never “pain free”.
52He continues to see his local doctor, Dr Rainsford. He was seeing a pain specialist, Dr Ong, but he has since left the clinic. In her report dated 25 May 2022,[20] Dr Rainsford notes that, “A replacement specialist was planned to be provided by the service but this is yet to eventuate.” I accept that is the reason he is not undertaking pain management specialist consultations for his left shoulder injury at the moment.
[20]PCB 82
Consequences
53As set out above, Mr Apostolakis has had extensive treatment for his left shoulder injury, and remains on daily opioid-based pain killers, with Mobic available to him on demand for when his pain flares up. He tries to avoid taking Mobic as it upsets his stomach and causes nausea.
54Despite medication, he continues to have constant mild pain, which he rates at 2 out of 10. Without the Endep, his pain is a 6 out of 10. There are some days when the Endep “just doesn’t seem to kick-in like it should”, and on these days his shoulder pain is worse.[21]
[21]Plaintiff’s second affidavit, dated 20 July 2022, PCB 24
55Whilst he can still use his left arm and shoulder to perform tasks, if he does too much then:[22]
“my pain goes over my pain threshold and becomes unbearable. I have learnt to tolerate the base-level of pain that is always present in my shoulder. If I push myself too hard or over-use the shoulder, then the pain goes over my pain threshold.”
[22]Ibid, PCB 22
56Mr Apostolakis has not returned to work with his employer since his injury. It is not in dispute that he is permanently incapacitated for his pre-injury employment.
57Prior to his injury he enjoyed fishing very regularly, including camping on a monthly basis, at least, over summer. He went on fishing trips on the Murray River, and would regularly fish out on Port Phillip Bay. He has now stopped fishing almost altogether due to his pain. He no longer finds the same form of enjoyment from fishing as he can no longer cast properly, and gets an increase in pain in the shoulder when holding a fishing rod. Sitting outside in the elements also makes his left shoulder very achy and sore. He cannot remember the last time he went fishing.
58Since 2011, Mr Apostolakis has engaged in recreational gold prospecting, which involves using a metal detector to detect a target and then using a pick or shovel to dig up the gold. Prior to his injury he purchased a metal detector for $5,000 and would prospect for gold fortnightly on the weekends if not fishing, and travelled to Castlemaine from time to time for prospecting trips with friends.
59Whilst he still prospects, it is only every few weeks, and it is not the same. He is very limited in what he can do. As he put it, he still goes:
“because I don’t want to give up on life and the physiotherapist – I told the physiotherapist it’s the only thing that I really enjoy – and I go out there, but I watch my friends, where they dig big holes, and I can’t dig them big holes and I can only dig probably four to six inches with my right arm. I miss out on the big, deep gold that I’ve seen people pluck out two-ounce nuggets, but they’re holes that I could never dig and I watch them and I even say to them, “I could never dig that.” ... I didn’t want to give it up because if I gave it up what – I’m going to start giving up on life. Everything’s just going backwards.”[23]
[23]T14, L13-25
60He described his pain and its consequences in his affidavits as follows:
“I continue to suffer pain. I always have some degree of pain. When I am at rest it is a niggling aching pain but if I try to do anything like going gold digging I have a significant increase in pain that feels like a pulse in the top of my arm. It is like a deep aching and throbbing pain.
I am limited in many other things that I previously took for granted. I am limited with all activities that require force with both shoulders or lifting or doing anything above my head. For instance, if I mow the lawns like I could before easily, I have an increase in pain. Now I generally get someone else to mow my lawns. Even riding a push bike with my arms out in front causes an increase in pain.
I have significant limitations in the use and movement of my left shoulder. It does not rotate properly. For instance, one physiotherapist thought I should push myself and go to the gym and try and lift heavier weights. That just caused an immediate increase in pain and flared up my whole shoulder.”[24]
“My mother has fairly big area of lawn at her house but I can no longer mow the lawns for her. Mowing is too difficult and aggravates my left shoulder pain. It is very hard for me to push the heavy and vibrating mower and to lift the heavy catcher and empty it into the bin. We now pay someone to come and mow the lawns.
I can still ride a bike. I started riding after my accident and shoulder surgeries because my physiotherapist told me that I should do some cardio exercise. I tend to only ride my bike for 15 minutes at a time because if I ride it for any longer then I notice increased aching and pain in my left shoulder.”[25]
[24]Plaintiff’s first affidavit, dated 22 September 2020, PCB 15
[25]Plaintiff’s second affidavit, dated 20 July 2022, PCB 22
61His left shoulder pain continues to wake him once or twice in the middle of the night every few hours, and it makes it difficult for him to get back to sleep. He gets pins and needles and stiffness down his left arm, including when he sleeps on it; and cramping in his shoulder muscles.
62The defendant submitted that although the plaintiff’s consequences may be considerable, they do not reach the threshold of being “very considerable”. The defendant pointed to a number of matters in this regard:
(a) firstly, although Mr Apostolakis has constant underlying pain, it is “manageable” or “slight” with the Endep;
(b) in terms of his sleep, in cross-examination the plaintiff accepted that it was only if he happened to sleep on his left shoulder that he experienced pain, and that he had issues with his sleep even before his left shoulder injury;
(c) he is still able to do things around the house, including assisting his mother in maintaining the vegetable patch, and he accepted that he could do cooking and cleaning if he paced himself;
(d) he is still able to socialise with his friends on a regular basis, go for a bike ride, and he is able to pursue his hobby of gold prospecting, although he has some limitations in terms of heavy digging;
(e) he has had a reasonably good outcome from the surgeries because he is now left with a left shoulder that has mild residual dysfunction.
63Overall, Ms Spitaleri for the Authority submitted that upon comparison of what the plaintiff has retained with what he has lost, it could not be said that the consequences of the left shoulder meet the “very considerable” test; and so in comparing the plaintiff’s impairment to the range of possible impairments, it “just doesn’t quite get there”.
Findings
64I accept Ms McLeod’s submission on behalf of the plaintiff that he is a straightforward and uncomplicated man, candid in his affidavits and in conveying his history to doctors about his pain, his retained capacities, and his ability to engage in pre-injury activities. Further, that he presented as a witness of truth in court who, without embellishment, made frank concessions as to the extent of the capacities he has retained and did his best to answer questions directly. I accept his evidence.
65I consider the evidence, overall, supports the finding that Mr Apostolakis suffers constant pain, albeit mild, which varies in severity and increases on a regular basis on exposure to cold weather or upon overuse of his left arm. The pain is only manageable because he is taking a combination of Endep and Suboxone.
66Mr Apostolakis was not taking Endep prior to his left shoulder injury; and after his first operation he required different combinations of medication including Endone, Gabapentin, Norspan patches, Brufen and Voltaren in order to manage his pain.
67His injuries have thrice required operative intervention by orthopaedic surgeons, and resulted in a more than significant reduction in his enjoyment of recreational fishing and gold prospecting and many other aspects of his activities of daily living.
68Prospecting for gold is Mr Apostolakis’ principal recreational activity. Whilst he continues to prospect, he does not enjoy it as he used to because of both the pain-related restrictions which compromise this activity and the pain that it produces. The importance of gold prospecting to Mr Apostolakis was emphasised by his evidence that if he gave it up he would feel like he was “giving up on life”.
69In continuing his social contact with friends in the context of his limited prospecting for gold, I am not persuaded this establishes anything other than he is doing his best to get on with his life.
70As Judge Clayton commented in Aravena v Victorian WorkCover Authority:[26]
“I do not consider the test requires that an applicant for a serious injury certificate lead a miserable, joyless life.”[27]
[26][2021] VCC 2010
[27]Ibid [96]
71I am satisfied that even though Mr Apostolakis continues to undertake activities which he previously enjoyed prior to his injury, they are at a significantly reduced level, in a modified fashion, and with the knowledge they will cause pain.
72His constant pain has required regular use of medication, opioid-based, for eight years, and Mr Apostolakis will likely require such medication for the rest of his life in order to manage his pain symptoms. He described his pain symptoms without medication as 6 out of 10, and this evidence was not challenged. I am satisfied he requires use of Endep for pain relief, which, in conjunction with his use of Suboxone to manage his previous heroin addiction, manages the pain. There is no suggestion Mr Apostolakis overstated the level of his pain, or that the medication used to manage it is not indicated.
73Mr Apostolakis has also required very significant medical treatment in addition to surgical intervention. He has required support from a pain management specialist since mid-2019, when his pain symptoms had not resolved sufficiently following his third surgery in July 2017. He has required consistent physiotherapy since 2017, only to cease such treatment recently because he cannot afford to pay for it privately. Since then, he has engaged in self-management of his injuries by way of exercises at home that his physiotherapist taught him, which helps the range of movement and the pain a little.
74I am faced with a conundrum in relation to part of the objective evidence in relation to his symptoms and loss of function in the left shoulder to this extent: whilst there is evidence of wasting of his scapular and deltoid muscles noted in each of the reports from June and July 2021 of Dr Dominic Yong,[28] Dr Reza Sabetghadam,[29] and Mr John Salmon,[30] these objective findings are difficult to reconcile with those of the Medical Panel, which reasons noted an absence of muscle wasting only a few months later. This is particularly so as no doctors were called to give evidence in this application, which is not unusual. I accept that there was wasting of the shoulder muscles in mid-2021 consistent with the level of dysfunction reported by Mr Apostolakis.
[28]PCB 123
[29]DCB 54
[30]DCB 64
75The Medical Panel also recorded in its Reasons the presence of bilateral callosities on both hands, and opined that these “indicated regular use of both hands and only occur with regular and repetitive use.” I place little weight on this opinion, which was not supported by any further reasoning. Mr Apostolakis frankly admitted in cross-examination that the staining and calluses were from his gold prospecting, but denied doing any heavy work involving both arms, which he said he cannot do. This answer was not challenged.
76The Reasons of the Panel form part only of the whole of the evidence upon which I must determine whether the consequences of the left shoulder injury are serious.
77I also have had regard to the evidence of the “ongoing restricted range of movement” in the shoulder in the reports of the general practitioner, Dr Kathryn Rainsford,[31] and the Reasons of the Medical Panel which recorded findings of a minimal restriction in external rotation.
[31]PCB 80 and PCB 83
78I am bound by the Opinion of the Medical Panel, and find that there is a mild residual dysfunction of the left shoulder.
79In the circumstance of no challenge being made to the reliability of his evidence, I accept Mr Apostolakis’ account of the difficulties he faces as a consequence of this level of impairment; and there is a significant body of other material to support this evidence.
80There is objective evidence of the serious nature of the injury suffered by Mr Apostolakis contained in the reports of Mr Marcus Emmett, Dr Kathryn Rainsford, Mr Ash Chehata[32] and Associate Professor Anthony Buzzard,[33] all of whom identified the presence of likely deterioration in osteoarthritic change in the joint, and the possibility or need for shoulder replacement surgery in the future.
[32]PCB 104
[33]PCB 132
81I accept Mr Apostolakis’ evidence that his sleep is affected on a nightly basis by pain in his left shoulder and, further, the extent of restricted movement in the joint, and the presence of cramping, pins and needles.[34]
[34]See also, for example Associate Professor Buzzard at PCB 131 and Dr Sabetghadam at DCB 54.
82In Haden Engineering, Maxwell P said:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”[35]
[35]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [45]
83I am required to assess the consequences to Mr Apostolakis as at the date of this application. While Mr Apostolakis has had a reasonably good outcome from surgery, the fact remains that he has required three major surgical procedures, with further surgical intervention indicated, even if not undertaken, in the future. I regard this history and current presentation as a significant factor in assessing the seriousness of the consequences to the plaintiff, when judged against other cases.
84Mr Apostolakis has worked his whole life in manual labouring process type roles. Despite notional full-time capacity to work in suitable employment, he has not worked since the date of his injury. His evidence as to his attempts to return to work after injury included:
“I did a course in traffic management and first aid. I did also some study of Microsoft Office. I did a construction induction white card as well. These courses have not led to me finding work.
I have applied for traffic management jobs but I am now limited in many things I can do. All the traffic management jobs have knocked me because of my left arm. All jobs I have applied for have asked me about my left arm and once they know, they just never call me back. I do not think I could move signs around and don’t think I can do any job that needs lifting with both my arms.
…
I want to work. However, I am limited in what I can do with my shoulder. I have only ever done manual and repetitive jobs that needed both my arms. I have poor computing skills and knowledge and have never really worked in an office type job. Despite me getting a white card and doing a traffic management course and trying to improve myself, I continue to be knocked back because of my left shoulder injury.”[36]
“I am currently receiving a Job Seeker allowance from Centrelink. A condition of the allowance is that I have to apply for a certain number of jobs per month. I only apply for very light jobs as I think anything heavy or repetitive would aggravate my left shoulder pain. Once I tell people about my shoulder injury, they always say they’ll call me back — but they never do. I am not currently working.”[37]
[36]Plaintiff’s first affidavit, dated 22 September 2020, PCB 17-18
[37]Plaintiff’s second affidavit, dated 20 July 2022, PCB 26
85I take into account the fact of his age, and, while not as young as the plaintiff in Stijepic v One Force Group Aust Pty Ltd & Anor,[38] Mr Apostolakis sustained injury at the age of thirty-four. His age has increased the seriousness of the left shoulder injury because of his life expectancy.[39]
[38][2009] VSCA 181
[39]See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; and see also Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [17]
86Ultimately on the issue of “range” the case is finely balanced. In the context of the Opinion of the Medical Panel – in particular his capacity for suitable employment on a full-time basis – I make the following findings:
(a) he is precluded from undertaking his pre-injury employment, which he had undertaken on a full-time basis with the employer since 2009 and in similar labouring and manufacturing positions since 1998;
(b) the notional retained capacity has not been exercised, and he has not actually undertaken any employment since his injury in 2014;
(c) the loss of capacity to undertake his pre-injury employment as a manual worker is a significant consequence.[40]
[40]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [15]
87I am fortified in this latter finding by the detailed evidence that Mr Apostolakis gave in relation to his domestic and recreational activities, which were compromised by his injuries. He is unable to do heavy digging in the garden, in particular turning over soil, and now no one does it. He finds this upsetting, living with his mother and having previously been relied upon to do this task. He was able to continue to partake in prospecting for gold; however, it was in a modified fashion, not enabling him to dig deep for larger gold deposits, and it did not give him the same level of satisfaction as his previous gold prospecting without these restrictions.
88In the circumstances, I grant Mr Apostolakis’ application in respect of pain and suffering arising from his injury on 2 December 2014.
89I will hear the parties as to the form of orders and costs.
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