Arcanli v Victorian WorkCover Authority
[2021] VCC 600
•17 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01548
| TONY ARCANLI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 April 2021 | |
DATE OF JUDGMENT: | 17 May 2021 | |
CASE MAY BE CITED AS: | Arcanli v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 600 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right shoulder – application in respect of pain and suffering consequences only – whether consequences were “at least very considerable” – whether employment was a significant contributing factor to the plaintiff’s injury – whether employment is required to be a significant contributing factor to the plaintiff’s injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries and Anor v Poljak [1992] 2 VR 129; Taseska v KahAustralia Pty Ltd & Victorian WorkCover Authority [2011] VCC 128; Johnson v Roads Corporation [2017] VCC 400; Gorgievski v BTI Pty Ltd(SKYBUS) & Anor [2018] VCC 2115; Critchell v Fresh Food Management Services & Anor [2020] VCC 92
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Carbone Lawyers |
| For the Defendant | Mr S Martin | Wisewould Mahony Lawyers |
HIS HONOUR:
1Tony Arcanli alleges that in the course of his employment with TNS Investment Technologies Pty Ltd (“TNS”) between about August 2010 and 12 December 2011, he suffered injury to his right shoulder. He seeks leave to commence a proceeding claiming pain and suffering damages in respect of injuries suffered by him in that employment. His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”).
2In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function; … .”
4It can be seen that the definition does not specifically refer to any physiological injury as such, but to an impairment or loss of a body function.
5The body function relied upon in this application is that of Mr Arcanli’s right shoulder.
6The term “permanent” is to be interpreted as meaning “likely to persist into the foreseeable future”.[2]
[2] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18]-[19]
7With regard to pain and suffering damages, the impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, “fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[3]Section 134AB(38)(c) of the Act.
8The defendant contests Mr Arcanli’s application on two bases:
(a) that Mr Arcanli has not suffered an injury to his right shoulder in the course of his employment with TNS; or
(b) if he did suffer an injury to his right shoulder in the course of that employment, the consequences of the injury are not serious, in that they cannot be described as being “more than significant or marked”, or as being “at least very considerable”.
Background
9Mr Arcanli is aged fifty-one. He was born in Turkey and came to Australia at the age of ten.
10Mr Arcanli was educated in Melbourne to Year 9. On leaving school in about 1986, he became a disc jockey. Later, he spent time in Turkey, returning to Australia in about 2004. Shortly afterwards, he found employment working in a number of different retail newsagencies.
11In about May 2009, he commenced full-time employment with TNS as a shop assistant. TNS operated a newsagency in North Fitzroy.
12In August 2010, Suong Thi Pham (“Mrs Pham”) and her husband took over the North Fitzroy newsagency from TNS. Effectively, the North Fitzroy newsagency was under new management – the business was managed by Mrs Pham and her husband.
13Mr Arcanli continued to be employed by TNS at the North Fitzroy newsagency until about 12 December 2011, at which time he was made redundant and ceased that employment.
14Evidence as to Mr Arcanli’s employment activities following his redundancy with TNS in December 2011 was sparse. I accept that by early 2012, he was working as a courier doing deliveries. Although at one point in his evidence he indicated that he only filled in for his father as a delivery courier for a day, I find that he worked as a delivery courier for some longer period. He did DJ work at parties but said that this was not to the extent that he had been able to earlier.
15In his affidavit sworn on 2 December 2019, Mr Arcanli deposed that on 22 February 2017, he commenced employment with a dry-cleaning company, where he worked until about 9 July 2018, when he was made redundant.
16In his affidavit sworn on 20 April 2021, he deposed that in about October 2020, he left Melbourne and moved back to Turkey, where he has resided since. He gave his evidence remotely from the city of Antalya in Turkey. He has separated from his wife and daughter, who continue to reside in Melbourne.
17Mr Arcanli had been involved in two motor vehicle accidents. The first, in 2010, occurred when a vehicle that he was driving was struck from behind by a vehicle driven by his wife. He did not work on that day and attended at the Springvale South Medical Centre.[4] Although clinical notes from the Springvale South Medical Centre were tendered, the earliest consultation date referred to in those notes was 8 October 2011. These contained no reference to the 2010 accident. Mr Arcanli’s evidence was that he had no ongoing issues following that motor vehicle accident.
[4]Plaintiff’s Court Book (“PCB”) 7
18Mr Arcanli was involved in a second motor vehicle accident on 13 March 2012. This was approximately four months after his redundancy and cessation of work for TNS. His evidence was that, at the time, he was driving a courier vehicle, filling in for a day for his father. His vehicle was struck by another vehicle which collided with the driver’s door of his vehicle. Although he said the impact was light, his evidence was that the driver’s side front door was struck and had to be replaced.[5] His evidence was that he did not require any time off work following that second motor vehicle accident although, given that he was not employed at the time, and that he was only filling in for his uncle for a day,[6] this is not of significance.
[5] Plaintiff’s affidavit sworn 23 November 2018 paragraph 10
[6] Transcript (“T”) 37-38
19The defendant submitted that an examination of records of Mr Arcanli’s general practitioners disclosed records of various physical complaints but none of symptoms likely to relate to his employment with TNS. It submitted that I ought not be satisfied that Mr Arcanli had suffered any injury to his right shoulder in the course of his employment with TNS.
20For reasons which follow, although I am satisfied that Mr Arcanli does have an injury to his right shoulder, I am not satisfied that it was suffered in the course of his employment with TNS.
21Somewhat ironically, the plaintiff submitted that it was necessary for him to establish that his employment with TNS was a significant contributing factor to his right shoulder injury, whilst the defendant submitted that such proof was not required. I use the term “ironically” because normally it would be the plaintiff in an application such as this who would be submitting he or she had less to prove and the defendant submitting he or she had additional matters to prove.
22Section 1 of the Act defines “injury” so as to include any physical injury including a recurrence, aggravation, acceleration, exacerbation, or deterioration of a pre-existing injury.
23Section 82 (2C) of the Act provides:
“There is no entitlement to compensation in respect of the following injuries unless the worker’s employment was a significant contributing factor to the injuryꟷ
(a) …
(b) …
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”
[My emphasis]
24Section 5(1B) of the Act sets out a number of matters which the Court must take into account in determining whether a worker’s employment was a significant contributing factor to an injury. These include such matters as the duration of the worker’s employment, the nature of work performed, the probable development of the injury occurring if that employment had not taken place, the existence of the hereditary risk, and the lifestyle of the worker.
25Section 134AB provides that recovery of damages for non-pecuniary loss is restricted to workers who have suffered an injury and are entitled to compensation in respect of it. It follows that where the injury in question is an exacerbation or aggravation of the previous injury, that aggravation or exacerbation is itself an injury for which the worker may be entitled to compensation if the worker’s employment was a significant contributing factor to that injury.
26In closing submissions, counsel referred me to a number of decisions of this Court to that effect.[7] No authorities to the contrary were submitted to me.
[7]Taseska v KahAustralia Pty Ltd & Victorian WorkCover Authority [2011] VCC 128 at paragraphs [81]-[86], per Judge Parrish; Johnson v Roads Corporation [2017] VCC 400 at paragraph [64], per Judge Wischusen; Gorgievski v BTI Pty Ltd(SKYBUS) & Anor [2018] VCC 2115 at paragraph [44], per Judge Bowman; Critchell v Fresh Food Management Services & Anor [2020] VCC 92 at paragraph [4], per Judge Pillay
27I accept the evidence of Mr Ian Jones,[8] Mr Peter Moran,[9] Mr Armin Drnda[10] and Mr Douglas Gardiner,[11] that Mr Arcanli’s right shoulder injury is likely to be an aggravation of pre-existing injury or underlying pathology. It follows that it is necessary for the plaintiff to establish that his employment with TNS between August 2010 and 12 December 2011 was a significant contributing factor to that injury.
[8]Defendant’s Court Book (“DCB”) 18
[9]PCB 82
[10]PCB 84
[11]PCB 99
Was the Plaintiff’s employment with TNS a significant contributing cause of his right shoulder injury?
28I consider that the significant dates relating to this issue are:
· May 2009 – Mr Arcanli commenced full-time employment with TNS.
· August 2010 – TNS was taken over by Mr and Mrs Pham. Mr Arcanli continued in his full-time employment with TNS.
· 2010 (month unknown) – Mr Arcanli was involved in a motor vehicle accident when his wife drove her car into the rear of the car being driven by him (“the 2010 car accident”). Although there was no evidence as to the exact date of the 2010 car accident, it was reasonably close in time to the date the Phams acquired the business.
· 8 October 2011 – Mr Arcanli attended the Springvale South Medical Centre. He made no complaint of right shoulder pain or symptoms.
· 12 December 2011 – Mr Arcanli ceased employment with TNS, having been made redundant. Up to that date he had made no complaint to the Phams or anyone else at TNS concerning his work duties or any right shoulder problems. He made no complaint to any doctor about such matters for several months. Those complaints are dealt with below.
· 13 March 2012 – Mr Arcanli was involved in a second car accident whilst working as a delivery courier (“the second car accident”).
29Much was made by counsel for the defendant concerning the lack of complaint of shoulder pain or work problems at any time during his employment with TNS.
30Mr Arcanli was cross-examined at length concerning the clinical notes of the Springvale South Medical Centre. These clinical notes commenced with notes of Dr Lawrence Woo on 8 October 2011. The evidence of Dr Woo was that this was Mr Arcanli’s first attendance at the clinic.[12] There was no evidence from any medical practitioner of medical treatment of Mr Arcanli before that date, save for a reference in the Springvale clinical notes that Mr Arcanli went to a “local doctor” in 2010 after the first car accident.[13] The “local doctor” was not identified in evidence.
[12] Reports of Dr Woo at PCB 47 and 62
[13] DCB 103
31Relevant details of attendances at Springvale on and after that date were:
· 8 October 2011 (about eight weeks before Mr Arcanli was made redundant) – he was seen by Dr Woo. The notes indicate that Mr Arcanli advised Dr Woo of the first car accident in the previous year, 2010. He told Dr Woo that he had seen a “local doctor” and was told that he had a whiplash. A few months later he still complained of neck pain and stiffness. He took a day off after the first car accident and had a sore neck intermittently after. Dr Woo took a history that, at TNS, he “does lifting of bundles of magazines & newspaper”.[14] He was referred by Dr Woo for x-rays of his cervical spine. There was no mention in Dr Woo’s notes of any right shoulder symptoms – only to neck pain and the fact that his work involved lifting bundles of magazines and newspapers. On examination, Dr Woo reported pain when moving to both sides.
[14]DCB 103
· 3 April 2012 (about four months after he ceased working for TNS) – he was seen by Dr Tang, who took a history of the second car accident on 13 March 2012, three weeks earlier. On that occasion, Dr Tang noted “R shoulder pain, pins and needles”.
· 10 December 2012 – he was seen by Dr Choon. The doctor took a history of pain in the neck and right shoulder. He was referred for an ultrasound of his right shoulder.
· 21 December 2012 – he was seen by Dr Choon again and advised that the ultrasound of his right shoulder was suggestive of supraspinatus tendinopathy.
· 27 December 2012 – he was seen by Dr Choon, who noted that he suffered from pins and needles in the right arm, lasting all day; that his right arm was colder than his left; that he had pins and needles in a glove-and-stocking distribution; that he could not turn the wheel of the car a full circle with his right hand when driving; that he could not work with his arms overhead; that he felt pain when he worked for more than half an hour when at his computer, his arm became numb, and that his sensation to touch with cotton was normal.
· Mr Arcanli was seen on various occasions thereafter prior to February 2013. Clinical notes recorded no mention of shoulder symptoms.
· 22 February 2013 – he was seen by Dr Tang and complained of ongoing shoulder problems. Dr Tang advised him that he did not do WorkCover claims. I am able to infer from that note that Dr Tang regarded the shoulder problems as being linked to employment and, hence, were or might be linked to WorkCover. There was nothing in Dr Tang’s notes indicating the identity of the employer involved. In his notes taken on the earlier 3 April 2012 consultation, Dr Tang had noted the first car accident had occurred while Mr Arcanli was working as a courier.
· 17 May 2013 – seen by Dr Woo, who recorded a history that Mr Arcanli had shoulder pain ever since working in a newsagency lifting magazines, newspaper and stationery. Mr Arcanli advised Dr Woo that there had been a change of ownership two years before and he had to move a lot of things by repetitive lifting.
· 26 June 2013 – seen by Dr Ong for WorkCover for a right shoulder injury. At that time, he was attending physiotherapy. On examination, he had abduction up to 90 degrees. Mr Arcanli had requested a referral to a psychologist.
· 12 July 2013 – Dr Woo referred Mr Arcanli for a cortisone injection under ultrasound guidance in relation to a right rotator cuff injury.
· 17 July 2013 – seen by Dr Ong, who was advised that he was applying for a disability pension and would go to Centrelink the following day. He referred to his painful right shoulder and still requested strong analgesia. He was prescribed Tramal. It appears that no pension was granted at that time.
· 1 April 2014 – he was seen by Dr Ong and had just returned from an overseas trip of two to three weeks while he was on WorkCover. He complained of right shoulder pain and could abduct his shoulder up to 90 degrees. He complained also for the first time of left shoulder pain and could abduct the left shoulder also up to 90 degrees. He was prescribed further Tramal.
· Throughout this period, Mr Arcanli was also complaining to his general practitioners of symptoms of depression and insomnia. He was prescribed antidepressant medication.
· 15 October 2014 – he was seen by Dr Woo and complained of constant right shoulder pain and a clicking noise. He had a stiff neck all the time and pins and needles down the right side to his fingertips.
· 20 November 2014 – he was seen by Dr Woo and referred to Mr Drnda (orthopaedic surgeon). The reason for his attendance was cervical radiculopathy.
· 4 December 2014 – he was seen by Dr Woo and complained of pain in his right shoulder (“+++”) which I interpret as strong pain. He said he could not work due to pain.
· 3 March 2015 – he was seen by Dr Durmaz (psychologist). It was noted that he was very depressed, had a lot of right shoulder pain and pain in his neck and back. He struggled to fall asleep and was hoping to have an injection, hoping this might help to reduce his pain.
· 4 May 2015 – he was seen by Dr Woo and was referred for a further cortisone injection in his right shoulder under ultrasound guidance. Dr Woo noted subacromial bursitis supraspinatus tendonitis. He was prescribed Panadeine Forte and Endep medication.
· 8 July 2015 – he was seen by Dr Woo, who noted his right shoulder pain had returned and was back to what it was before the injection. He was prescribed further Panadeine Forte.
· 6 November 2015 – he was seen by Dr Woo and reported that he had been seen by Mr Drnda in relation to pain in his right shoulder and right upper arm. He complained of pins and needles in the dorsum of his right hand.
· 14 December 2015 – he was seen by Dr Woo, who noted chronic left-sided low back problems when bending down and pain in his right shoulder. Mr Arcanli does not appear to have been seen at the Springvale South Medical Centre after this date in relation to his right shoulder. The clinical notes indicate attendances on 16 February 2017 and 16 December 2019 but do not indicate the subject of the consultation.
32Although Mr Arcanli professed to have a memory of those early attendances at the Springvale clinic, I was not impressed with his evidence that he had told Dr Woo of shoulder pain in October 2011. Where his evidence was contrary to that of the written, contemporaneous, clinical notes of the doctors at the clinic, I prefer the evidence set out in those notes.
33Between September 2013 and October 2017, Mr Arcanli attended the Primary Medical & Dental Centre in Highett and was seen there on a number of occasions in that period. On the first of those occasions in September 2013, Dr Utten recorded a history of right supraspinatus tendinopathy and that this related to a “Workcover situation”.[15] I conclude that such opinion could only have been reached on the basis of what Dr Utten had been told by Mr Arcanli. The doctor noted that he had explained to Mr Arcanli that he could not take over the treatment of this condition. His subsequent attendances at the Highett Clinic were for matters not involving the right shoulder.
[15]DCB 108
34Mr Arcanli was seen at the Southland Medical Centre in Cheltenham on a number of occasions between January 2018 and January 2020. His right shoulder was referred to in clinical notes on a number of occasions:
· 9 July 2018 ꟷ Dr Bergman took a history of a severe shoulder injury at work approximately seven years before (around 2011), with ongoing problems.
· 6 September 2018 ꟷ the clinical notes refer to a third motor vehicle accident, when he ran into a car which braked for a red light in front of him. He felt that his neck was stiff, although the clinical notes noted a good range of movement in all directions.
· 15 October 2018 – Mr Arcanli was seen by Dr Bergman who noted that the reason for his visit was:
“Depression/Anxiety
Bilateral shoulder injury
Cervical disc prolapse.”
He was referred to Dr Wahab, a psychiatrist.
· 3 December 2018 ꟷ Mr Arcanli was seen by Dr Bergman. Mr Arcanli advised him of a WorkCover claim through Zaparas Lawyers in relation to his shoulder. The doctor noted that “They want me to write letter” in relation to “should[e]r injury) ?? happened years ago”.[16] The doctor noted “I know nothing about this”[17], although I consider that this is somewhat at odds with his notes of 9 and 13 July 2018. On the latter date, Dr Bergman appears to have taken a history of a shoulder injury at work on 28 July 2014.[18] The identity of the employer on that date was not noted. That note was not dealt with further in the evidence. On 3 December 2018, Dr Bergman noted that the patient wanted to get a disability pension. He noted that he could not assess this and had referred him to a psychiatrist.
· 8 March 2019 ꟷ Mr Arcanli was seen by Dr Bergman and told him of right shoulder pain and that he had frequent flare ups of right shoulder injury. On most nights, he said, he could not sleep on his right side. He said that seven years before he had suffered a tear of his shoulder muscle.
· 6 September 2019 – he was seen by Dr Bergman, who noted that his injury at work in 2011 concerning his right shoulder had been discussed and that right shoulder pain was ongoing.
· 13 September 2019 – Dr Bergman noted that Mr Arcanli had limited movement and pain in the right shoulder and needed gym and swimming.
· 11 October 2019 – Dr Bergman noted that Mr Arcanli had been knocked back from his application for a disability pension because of advice provided by a psychiatrist that he had not yet stabilised. Dr Bergman also noted that Mr Arcanli’s shoulder was not getting worse, nor better.
· 23 December 2019 – Dr Bergman noted that he considered that the shoulder injury was making Mr Arcanli’s psychiatric situation worse. He noted that the shoulder pain was “+++”.[19]
· Throughout the clinical notes relating to the Southland clinic, there were many records of attendances relating to non-physical issues and in particular depression, anxiety, panic attacks and the like.
[16]DCB 127
[17]DCB 127
[18] DCB 117
[19]DCB 135
35I consider that the clinical notes from the Southland Medical Centre make it clear that Mr Arcanli’s application for a disability support pension was based on his mental health problems, as noted by Dr Bergman, and not based on orthopaedic injury.
36In his Worker’s Injury Claim Form dated 25 January 2013, Mr Arcanli answered a number of questions as follows:
·What was the date and time the injury/condition occurred?
Answer: “12/12/2011. Gradual process.”
·When did you first notice the injury/condition?
Answer: “13/12/2011.”
·If you stopped work, what was the date and time?
Answer: “12/12/2011.”
·If you did not report the injury/condition, or there was a delay, please explain why?
Answer: “Did not notice until employment terminated.”
·When did you give your employer this claim form?
Answer: “25/1/2013.”
37I consider these answers are not consistent with Mr Arcanli’s evidence that he was aware of right shoulder pain from soon after the time the Phams took over the business in August 2010 until the date of his redundancy.[20]
[20] PCB 8; T35-6
38Mr Arcanli’s evidence was that he had not reported difficulties with work duties to the Phams or anyone else associated with TNS until the claim was lodged some fourteen months after he was made redundant and ceased work with TNS.
39At the commencement of the hearing, Mr Arcanli, through his counsel, tendered two affidavits sworn on 2 December 1919 and 20 April 2021 respectively. These had both been prepared by his current solicitors, Carbone Lawyers. He was cross-examined in relation to both affidavits. During the course of that cross-examination, he made reference to an earlier affidavit that had been sworn by him on 23 November 2018 and which had been prepared by his earlier solicitors, Zaparas Lawyers. That earlier affidavit was, in due course, tendered by Mr Arcanli.
40In paragraph 20 of his 2018 affidavit, Mr Arcanli had deposed that he had attended upon Dr Woo at the Springvale South Medical Centre on 8 October 2011 and had told him of neck and right shoulder pain. The clinical notes relating this attendance have been set out above. Contrary to Mr Arcanli’s evidence, the notes make no reference to any mention of any right shoulder injury or symptoms.
41I note that in Mr Arcanli’s affidavits sworn on 2 December 2019 and 20 April 2021 there is no reference to the attendance at the Springvale clinic on 8 October 2011. Rather, the first attendance to which reference is made is that of 3 April 2012.[21] It is difficult to avoid the conclusion that the earlier reference to the 8 October attendance was deliberately omitted in the later affidavits.
[21] See paragraph 23 of that affidavit
42Counsel for the defendant submitted that the absence of any complaint to TNS or his general practitioner concerning difficulties at work or right shoulder pain at work for a significant period of time after Mr Arcanli was made redundant should lead me to conclude that I could not be satisfied that he had injured his shoulder in the course of his employment with TNS.
43I accept that submission. On the basis of the matters set out above, I am not satisfied that Mr Arcanli injured his shoulder in the course of his employment with TNS or that such employment between August 2010 and December 2012 was a significant contributing cause of such injury.
44I have taken into account the evidence of a number of medical witnesses who concluded that his employment with TNS was a cause of his shoulder injury.[22] However, I consider that such opinions are, and could only have been, based on the histories provided by Mr Arcanli to each of them concerning the time of onset of right shoulder symptoms. They could not have been based on findings on later examination or later radiological findings. As is often the case, the opinion of a medical practitioner as to the cause of an injury and whether a particular period of employment was a significant contributing factor to an injury must inevitably be largely (if not totally) based upon the history provided by the patient.
[22]Peter Moran at PCB 82; Armin Drnda at PCB 84; Douglas Gardiner at PCB 99, and Ian Jones at DCB 18
45The histories provided by Mr Arcanli to treating and medico-legal doctors was that he developed his shoulder pain during the course of his employment with TNS from the time the Phams took over the business. This, I consider, is contrary to the contemporaneous clinical notes made by his general practitioners at Springvale South.
46I am not satisfied that Mr Arcanli has established that he suffered any symptoms of right shoulder pain prior to his redundancy in December 2011. Nor am I satisfied that he has established any injury to his right shoulder prior to his redundancy. On all of the evidence, I consider it more likely that his right shoulder symptoms commenced after the second car accident, which prompted his complaint of right shoulder pain at his attendance at the Springvale South clinic soon after.
47I am not satisfied that Mr Arcanli’s employment with TNS over the relevant period was a significant contributing cause of his right shoulder injury.
Was any Injury to the Plaintiff’s right shoulder a ‘serious injury”
48By reason of my findings set out above, it is not strictly necessary to consider this issue.
49However, if it is required, I consider that Mr Arcanli has not established that the current condition of his right shoulder amounts to a “serious injury” as defined in the Act.
50I am satisfied that he has right shoulder symptoms consistent with the radiological evidence tendered.[23] However, I do not consider that he has established that any impairment or loss of the function of his right shoulder has resulted in pain and suffering consequences which, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
[23] PCB 145-150
51I have come to this conclusion after taking into account evidence as to:
· The lack of complaint concerning his duties whilst working for TNS.
· The lack of evidence that his ability to perform his duties at work had been interfered with.
· The absence of any time off work with TNS during his employment there.
· The lack of advice to any medical practitioner concerning shoulder symptoms until well after the termination of his employment with TNS.
· His recent decision to travel to Turkey, where he now lives permanently. I consider it unlikely that he would have embarked upon such travel if he was suffering from a “serious injury” as defined.
· His demonstration at the hearing as to the maximum range of abduction of his right arm (to a maximum of 90 degrees) compared with findings of a number of doctors who had examined him and found a far greater range of movement.[24]
· The lack of wasting of the right shoulder muscles.[25]
· His current lack of any prescribed medication for shoulder pain.
· The lack of evidence as to when his disc jockey activities first became impeded by his shoulder issue.
· The description of his shoulder injury as “mild”[26] and “not particularly severe”[27] by Mr Drnda and Mr Gardiner respectively.
[24]Dr Wyatt at DCB 39 and 48; Mr Jones at DCB 17; Mr Drnda at PCB 83 and 85, and Mr Chehata at PCB 104 and110
[25] Mr Jones at DCB 17; Mr Pullen at PCB 90; Mr Gardiner at PCB 97, and Mr Chehata at PCB 103
[26] Mr Drnda at PCB 85
[27] Mr Gardiner at PCB 99
52Although these matters taken individually might not be decisive, when taken together, I am not persuaded that his right shoulder condition amounts to a “serious injury” as defined.
53For the reasons expressed above, Mr Arcanli’s application will be dismissed.
54I shall hear submissions regarding costs and any other consequential orders on a date convenient to the parties in the event that agreement concerning such orders cannot be reached by them. The parties should advise my associate by 4.00pm on Tuesday, 18 May 2021 of any consent orders or if the matter is to be listed for further submissions concerning consequential Orders.
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