Azimy v Victorian WorkCover Authority
[2025] VCC 149
•28 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-00984
| ABDULLAH AZIMY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 November 2024 | |
DATE OF JUDGMENT: | 28 February 2025 | |
CASE MAY BE CITED AS: | Azimy v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 149 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – pecuniary loss – right shoulder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120
Judgment: Leave granted to commence common law proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Ms S Fernando | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
1Mr Abdullah Azimy, the plaintiff, seeks leave to bring common law proceedings for pain and suffering and pecuniary loss damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), for an injury sustained to his right shoulder in the course of his employment with Michael Beamish Nominees, trading as Frankston Toyota (“the employer”), between 26 July 2017 and 30 January 2020.[1]
[1]Michael Beamish Nominees was taken over by Mission 100 Pty Ltd (see Plaintiff Exhibit P1, Plaintiff’s Court Book (“PCB”) 23). The defendant did not raise any issue about this.
2The plaintiff says he injured his right shoulder due to the heavy and repetitive nature of his work duties, and specifically over three days in January 2018 when he had to manually move tyres up and down from the vehicles being serviced, as the mechanical hoist on the hydraulic tyres ordinarily used for the task was not working.[2]
[2] Plaintiff Exhibit P1, PCB 8, paragraph [14] and PCB 22, paragraph [7]
3The “permanent serious impairment or loss of body function” the plaintiff relies upon under paragraph (a) of the definition of “serious injury” is the right arm.
4The plaintiff initially alleged he had sustained a “permanent severe mental or permanent severe behavioural disturbance or disorder” under paragraph (c) of the definition of “serious injury” but abandoned this claim at the commencement of the hearing.[3]
[3] Transcript (“T”) 14, Line/s (“L”) 7-9
5Ms Maria Pilipasidis SC and Ms Sonari Fernando of Counsel appeared for the plaintiff. Mr Bruce McKenzie of Counsel appeared for the defendant.
Issues in dispute
6The defendant did not dispute that the plaintiff suffered a compensable injury to his right shoulder in the course of his employment.
7The defendant disputed the application on three grounds:
(a) Credit;
(b) “Range”;
(c) In relation to loss of earning capacity, the defendant submitted there were five full-time jobs suitable for the plaintiff which would provide wages higher than 60 per cent of the plaintiff’s pre-injury earnings. The jobs were:
(i)Delivery Driver (light items)
(ii)Courier (lighter items)
(iii)Carpark Attendant
(iv)Product Assembler (light items)
(v)Console Operator.[4]
[4]Set out in the 130 Week Vocational Report completed by WorkAble Consulting dated 15 October 2021, Defendant Exhibit D6, Defendant’s Court Book (“DCB”) 81-95
Summary
8For the reasons that follow, I find that in relation to the pecuniary loss claim, the impairment consequences of the plaintiff’s injury are “serious” and satisfy the narrative test and the tests in s325(2)(e)(i) and (ii) of the Act.
9Therefore, the plaintiff has established an entitlement to commence a proceeding for loss of earning capacity damages and, as a consequence, he also has leave to commence proceedings for pain and suffering damages.[5]
[5]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The hearing
10The plaintiff was the only witness called. He gave evidence through an interpreter.
11The plaintiff tendered two affidavits sworn by him on 6 September 2023 (“first Affidavit”) and on 11 November 2024 (“second Affidavit”).[6] The Affidavits were sworn through a Dari interpreter.
[6]Though the plaintiff’s Affidavits were sworn, the plaintiff elected to take an affirmation during his viva voce evidence
12The plaintiff tendered radiology and operation reports of the right shoulder, material from his treating practitioners, medico-legal reports, documents, and documents relating to an operation on 6 August 2019.[7]
[7] Plaintiff Exhibit P13, PCB 111, 113-116
13The plaintiff tendered a return-to-work arrangement prepared by Workable Consulting dated 16 November 2020,[8] a taxation summary dated 21 November 2024 and produced a chronology and a written outline of submissions.
[8] Plaintiff Exhibit P19, DCB 110-111
14The defendant tendered medico-legal material, vocational reports, a Certificate of Capacity dated 7 August 2022, medical certificates, attendance notes from Cranbourne Stawell Clinic dated 7 February 2023 through to 4 November 2024 inclusive, and a letter from Mr Eden Raleigh, orthopaedic surgeon, to Dr Sabi Lal, general practitioner (“GP”), dated 28 November 2022.[9]
[9] Defendant Exhibit D11, DCB 165
15In addition, the defendant tendered surveillance footage taken on 7 January, 8 November, 13 November, 14 November and 18 November (in two parts) 2024.
16The defendant produced a statement of calculations dated 20 November 2024.
17I have considered all the tendered evidence, the plaintiff’s oral evidence and submissions of Counsel but shall only refer to the materials to the extent necessary in these reasons.
Background
18The plaintiff was born in Afghanistan in 1968 and is fifty-six years old.
19He briefly attended school in Afghanistan.[10] He worked as a taxi driver and as a mechanic in Afghanistan and Iran.[11]
[10] Plaintiff Exhibit P1, PCB 7, paragraph [8]
[11] Plaintiff Exhibit P1, PCB 22, paragraph [5]
20He came to Australia in May 2012 when aged forty-four years, and worked as a bricklayer and as a truck mechanic before commencing work with the employer.
21His wife is unemployed, and he has six children, ranging in ages from sixteen to twenty-nine.
22The plaintiff had pre-existing otitis externa, right-sided tinnitus, mild hearing loss, and bilateral carpal tunnel syndrome. He said he was in reasonably good health prior to the compensable injury.
23In his first Affidavit, the plaintiff said his English skills remained poor despite that fact that he had studied English.[12] He speaks Dari and Farsi.
[12] Plaintiff Exhibit P1, PCB 7, paragraph [11]
24The plaintiff commenced work as a “full-time mechanic” with the employer in October or November 2017.[13]
[13] Plaintiff Exhibit P1, PCB 22, paragraph [7]
The injury, treatment and work post injury
25The plaintiff said he injured his right shoulder throughout the course of employment and in particular in about January 2018.
26In March 2018, he attended Dr Sabi Lal, GP, at the Park Avenue Medical Centre seeking treatment for his right shoulder.
27The plaintiff has had extensive treatment for his right shoulder. He has had physiotherapy and ultrasound-guided cortisone injections on 27 June 2018, 9 January 2020, 2 June 2020 and 13 April 2021.
28He has had three operations:
· on 6 August 2019, a right rotator cuff repair, AC joint excision and biceps tenodesis performed by Mr Eugene Ek, Orthopaedic Surgeon;
· on 22 September 2020, an arthroscopic rotator cuff repair and subacromial decompression performed by Mr Eden Raleigh, Orthopaedic Surgeon;
· on 30 August 2022, a bursectomy and acromioplasty performed by Mr Eden Raleigh.
29On 13 January 2020, the plaintiff returned to work on light duties.
30On 30 January 2020, Mission 100 Pty Ltd took over as the plaintiff’s employer at Frankston Toyota.
31The plaintiff was off work following his second operation in September 2020 until January 2022. He returned on modified duties. He ceased work when he had his third operation in August 2022 and has not worked since.
32On 2 November 2022, his employment was terminated.
Current treatment
33As at this time of swearing his second affidavit on 11 November 2024, the plaintiff said he was taking:
· Amitriptyline 10mg;
· Ibuprofen 200-400mg;
· Osteomol paracetamol.
· He was using Voltaren Emugel[14] (sic).
[14]The plaintiff’s treating GP, Dr Hossein Kilani, confirmed that the plaintiff was taking these medications in a letter dated 19 September 2024: see Plaintiff Exhibit 16, PCB 129
34The frequency with which the plaintiff takes this medication is unclear.
35The plaintiff attended physiotherapy under an Enhanced Primary Care Plan, but this had ceased. He did not specify when his last session had been.
36He continues to receive treatment from his rehabilitation specialist, Dr Ali Kian Mehr, and attends his GP, Dr Hossain Kilani, at the Cranbourne Stawell Clinic.
Other incident
37Ms Molloy, physiotherapist, referred to an incident involving a car falling on the plaintiff’s shoulder but neither party made submissions about this alleged incident.
38The plaintiff did not concede that such an incident occurred and said, in his first Affidavit:
“I am told that there was reportedly an incident recorded in notes where a car fell on me in 2019. I have no memory of this, and I do not think this is accurate. My thumb was caught in a hoist at some stage, but I made a reasonable recovery.”[15]
[15]Plaintiff Exhibit P1, PCB 9, paragraph [32]
39The plaintiff was not cross-examined about this alleged incident.
40I am unable to make any findings about this alleged incident.
The Plaintiff’s evidence
41The plaintiff deposed he experienced constant right shoulder pain and restriction: He said:
“The pain is a deep dull aching pain with sharper flare-ups of burning pain. My pain is aggravated by activity and certain movements. There is sharper pinching pain in the shoulder. My right shoulder is stiff and sore. The joint feels wrong and unstable”[16]
[16]Plaintiff Exhibit P1 , PCB 12, paragraph [58]
42The plaintiff has muscle wasting and his right arm feels weaker. He said he has greater difficulty with pushing, pulling, lifting, carrying, overhead movements, reaching and rotation. He has lost confidence in his dominant right arm.
The medical evidence
43The plaintiff attended all medico-legal examinations with an interpreter.
Radiology
44The plaintiff tendered numerous reports of x-rays, ultrasounds and MRI scans.
45The MRI scan of 30 January 2023 was reported to reveal findings which were consistent with a recurrent tear of a previously repaired cuff with progression of fatty replacement supraspinatus as well as degenerative changes with effusion and capsular thickening, and mild subacromial bursitis. There was mild glenohumeral effusion and degenerative changes with low level capsulitis axillary recess especially.
46The ultrasound performed on 13 October 2023 was reported to reveal complete tears of the subscapularis and supraspinatus, degenerative change of the acromioclavicular joint and glenohumeral joint and laxity of the acromioclavicular joint on dynamic assessment.
47The x-ray performed on 13 October 2023 was reported to show degenerative change of the glenohumeral joint with marginal osteophytes, sclerosis and small separated calcified body inferior to the joint. There was bony irregularity of the greater tuberosity and reduced subacromial joint space.
Treating practitioners and medical records
Dr Sabi Lal, General Practitioner
48The plaintiff tendered a letter of Dr Lal dated 6 June 2022, completed before the plaintiff’s third operation. At that time, the plaintiff was working 25 hours a week on light duties.
49The defendant tendered a WorkCover Certificate of Capacity dated 7 August 2022 completed by Dr Lal which certified the plaintiff as fit for suitable employment on full-time hours with rest breaks and restrictions entailing avoiding lifting more than 5 kilograms, lifting waist to arm height only, and avoiding working above shoulder height, from 4 August 2022 until 2 September 2022.
50Dr Lal’s letter and Certificate predated the plaintiff’s third operation and are of little relevance to the plaintiff’s current capacity for suitable employment.
Dr Hossein Kilani, General Practitioner
·The plaintiff tendered a report of Dr Kilani dated 21 July 2024[17] which answered a series of questions from the plaintiff’s solicitors set out in a letter dated 2 July 2024.[18] The plaintiff also tendered two letters from Dr Kilani addressed to UHG (Unified Health Care Group) dated 1 November 2023 and 14 November 2023, and three “To Whom it May Concern” letters dated 23 May 2024, 25 July 2024 and 19 September 2024.[19]
[17]Plaintiff Exhibit P5, PCB 57-58
[18]Plaintiff Exhibit P18,
[19]Plaintiff Exhibit P16, PCB 122, 123, 125, 126 and 129
51The defendant tendered Centrelink medical certificates completed by Dr Kilani dated 4 May 2023, 15 August 2023, 14 November 2023, 13 February 2024, 14 May 2024 and 4 November 2024.[20]
[20]Defendant Exhibit D10, DCB 147,148, 149, 151, 152 and 162
52Dr Kilani is the plaintiff’s GP. The plaintiff speaks to Dr Kilani in Farsi.[21]
[21]T31, L10-14
53The latest certificate tendered was dated 4 November 2024 and listed “right rotator cuff tear/severe knee osteoarthritis” as the “Primary condition” for which the plaintiff was certified unfit for work. Anxiety and depression were listed as the “Secondary/Related condition”.
54In a letter dated 1 November 2023, Dr Kilani opined the plaintiff was not fit to lift, push or pull above 5 kilograms, and that he could not raise his right arm above shoulder level. Walking and sitting were “okay”, but “kneeling and squatting is affected” as the plaintiff had “difficulty standing up using hands”.[22]
[22]Plaintiff Exhibit 16, PCB 122
55In a letter dated 23 May 2024, Dr Kilani opined:
“… Considering his current condition and his low English literacy, I done (sic) believe he will ever be able to return to the job [he] was trained for and his options for other jobs are very limited.”[23]
[23] Plaintiff Exhibit P16, PCB 125
56Dr Kilani opined in his report dated 21 July 2024 that the plaintiff should completely avoid pushing, pulling, lifting, overhead activities, gripping, holding, carrying and use of tools with his right upper limb for the foreseeable future.
57In answer to a detailed question from the plaintiff’s solicitors regarding the plaintiff’s capacity for suitable employment,[24] Dr Kilani opined:
“Considering Mr Azimy’s injury, his age and education and other parameters, in my opinion he doesn’t have any realistic capacity for suitable employment into the foreseeable future.”[25]
[24] Plaintiff Exhibit P18, Question 10
[25] Plaintiff Exhibit P5, PCB 58
58Dr Kilani was asked about the plaintiff’s capacity to undertake the roles relied on by the defendant.[26] He opined:
“… all of the vocations mentioned require capabilities like some level of English literacy and physical strength in both upper limbs which I believe Mr Azimy doesn’t have.”[27]
[26]Plaintiff Exhibit P18, Question 11
[27] Plaintiff Exhibit P5, PCB 58
59In the letter dated 12 November 2024, Dr Kilani said that he reviewed the surveillance footage dated 7 January 2024 and it did not alter his opinions.[28]
[28]Plaintiff Exhibit P5, PCB 61
Mr Dean Harrop, Physiotherapist
60The plaintiff attended Mr Dean Harrop and his brother, Mr Scott Harrop, both of whom are physiotherapists.
61To avoid confusion, their full names will be used in these reasons.
62The plaintiff tendered a report of Mr Dean Harrop dated 10 September 2024,[29] as well as letters to Dr Lal dated 21 May 2020, 25 June 2020, 13 November 2020, a letter to Mr Raleigh and Dr Kilani dated 28 December 2022, a letter addressed “To Whom it may concern” dated 22 May 2024, and a letter dated 10 September 2024 addressed to Dr Kilani.[30]
[29] Plaintiff Exhibit P6, PCB 59-60
[30] Plaintiff Exhibit P12, PCB 109, 110, 112, 118, 124 and 128
63Mr Dean Harrop initially practised at Cranbourne Physiotherapy and subsequently practiced at Physio on Clyde.
64Mr Dean Harrop reported that radiology after the third operation indicated the procedure had failed to restore integrity to the rotator cuff.
65Mr Dean Harrop diagnosed chronic right shoulder pain post multiple failed rotator cuff repairs, with ongoing torn rotator cuff with associated degenerative changes.
66The plaintiff was referred back to Mr Dean Harrop by Dr Kilani in September 2024 in relation to bilateral knee osteoarthritis. Mr Dean Harrop examined the plaintiff on 10 September 2024. Treatment, including exercises, massage and self-management strategies, was recommended, as well as a review the next week. Mr Dean Harrop was of the view the plaintiff was “unable to kneel, squat, [engage in] prolonged standing [for] up to 20 minutes and stairs up to 15”.[31]
[31]Plaintiff Exhibit P6, PCB 59
67In his report dated 10 September 2024, Mr Dean Harrop confirmed the plaintiff was restricted to activities below shoulder height within a comfortable reach less than one kilogram in weight and was unable to perform activities with the right arm at or above shoulder height. These restrictions were likely to persist for the foreseeable future.
Mr Scott Harrop, Physiotherapist
68The plaintiff tendered a letter from Mr Scott Harrop addressed to Mr Raleigh dated 25 November 2022.[32]
[32] Plaintiff Exhibit P14, PCB 117
69At that time, the plaintiff reported improved pain and function compared to “pre-op” but said his progress was slow, with active flexion at 115 degrees and abduction at 90 degrees.
Ms Rosanne Molloy, Physiotherapist
70The plaintiff tendered a letter from Ms Molloy of Monash Health to Dr Lal dated 1 February 2019.[33] Ms Molloy recorded that the plaintiff reported his pain started when a car above him fell down onto him at work and injured his right shoulder.
[33]Plaintiff Exhibit P9, PCB 105-106
71The letter precedes the plaintiff’s three surgeries and is of little assistance to the Court.
Ms Ran Marina, Physiotherapist
72The plaintiff tendered a letter from Ms Marina at Hampton Park Physio addressed to Dr Lal dated 18 February 2019.[34]
[34] Plaintiff Exhibit P10, PCB 107
73The letter precedes the plaintiff’s three surgeries and is of little assistance to the Court.
Dr Emma-Leigh Rudduck, Orthopaedic Resident
74The plaintiff tendered a letter “To Whom It May Concern” dated 28 August 2019[35] from Dr Rudduck in which she recommended post-operative restrictions up to the next three months.
[35] Plaintiff Exhibit P11, PCB 108
Mr Eden Raleigh, Orthopaedic Surgeon
75The plaintiff tendered letters from Mr Raleigh addressed to Dr Lal dated 13 July 2020, 9 March 2021, two letters dated 4 July 2022 and a letter dated 20 September 2022.[36] In addition, the plaintiff tendered a report of Mr Raleigh addressed to Unified Healthcare Group (UHG) dated 21 July 2023.[37]
[36] Plaintiff Exhibit P13, PCB 111, 113-116
[37] Plaintiff Exhibit P4, PCB 53-56
76The defendant tendered a letter from Mr Raleigh to Dr Lal dated 28 November 2022.[38]
[38] Defendant Exhibit D11, DCB 165
77On most occasions when the plaintiff attended Mr Raleigh, he was accompanied by one of his children who acted as an interpreter. Mr Raleigh had difficulty communicating with the plaintiff when he attended without an interpreter.
78Mr Raleigh reviewed the plaintiff in November 2022. He noted that the plaintiff was not working. Mr Raleigh stated:
“I am really promoting him to go back to at least to light duties, I think it will help him given the tear was very, very small and just a non-healing scar.
I am very confident once he gets back, he will be able to respond faster than he is at the moment. I will review him in January.”[39]
[39] Defendant Exhibit D11, DCB 165
79In the report addressed to Unified Healthcare Group (UHG) dated 21 July 2023,[40] Mr Raleigh confirmed that he reviewed the plaintiff in January 2023 and in February 2023. Mr Raleigh opined, after reviewing the MRI scan of 30 January 2023 and examining the plaintiff, that the plaintiff had recovered and there was no significant retear. Mr Raleigh was hopeful that the plaintiff could get back to work with conservative management. He said:
“… The problem of course is that he has severe atrophy of the muscles so that even if the tear was now healed, there wasn’t a lot of muscle for him to do heavy lifting overhead but should be enough for ADLs at the very least.”[41]
[emphasis added]
[40] Plaintiff Exhibit P4, PCB 53-56
[41]Plaintiff Exhibit P4, PCB 55
80Despite this, Mr Raleigh opined:
“He should be able to return to work. Patients with a deficient cuff can do work with some restriction with overhead lift.”[42]
[42]Plaintiff Exhibit P4, PCB 55
81Mr Raleigh also said that he did not think the plaintiff was going to get further improvement given the chronicity of his problems. He considered that the plaintiff would be able to:
· inspect vehicle damage so repairs could be made
· test drive vehicles
· use equipment
· test and adjust repaired systems
· repair/realign or place/adjust brakes without any heavy lifting
· review work orders.[43]
[43]Plaintiff Exhibit P4, PCB 55
82Mr Raleigh considered that the plaintiff would be suitable for retraining but said the language barrier was probably the biggest issue.
83It was Mr Raleigh’s opinion that the prognosis for return to work in most cases was generally promising but, in this case, the fact that the plaintiff had been off work for a long period was a poor prognostic factor.
84Mr Raleigh said that he could see no reason for the plaintiff not to be able to return to some form of work in the future.
Dr Ali Kian Mehr, Pain Specialist
85The plaintiff tendered letters from Dr Mehr to Dr Kilani dated 23 August 2023, 17 October 2023 and 30 July 2024.[44]
[44] Plaintiff Exhibit P15, PCB 120
86In his first letter, Dr Mehr recorded finding atrophy in the supraspinatus muscle on the right side with restricted range of motion. He diagnosed adhesive capsulitis and post-operative persistent pain.
87Dr Mehr opined the plaintiff was not able to do any type of active manual work including work he had experience in such as a “construction job or mechanic job”.[45] He opined that the plaintiff had –
“… no suitable proper education, qualification or work experience to be able to consider any alternative job, and another issue is [the] language barrier. … .”[46]
[45] Plaintiff Exhibit P15, PCB 120
[46] Plaintiff Exhibit P15, PCB 120
88Dr Mehr did not provide an opinion as to the plaintiff’s capacity for alternative work.
89Dr Mehr reported to Dr Kilani in August 2023 that consideration should be given to a right supraspinatus nerve block and PRF treatment.[47] It is unclear whether the proposed treatments were undertaken.
Plaintiff’s medico-legal experts
[47]Although not addressed on this point, it has been assumed that “PRF” is a reference to platelet-rich fibrin therapy
Mr Raf Asaid, Consultant Orthopaedic Surgeon
90The plaintiff tendered reports of Mr Asaid dated 12 July 2024, 22 September 2024 and 5 November 2024.[48]
[48]Plaintiff Exhibit P7, PCB 62-70; 71-73; 97-98
91Mr Asaid examined the plaintiff on one occasion on 12 July 2024. At the time of the examination, Mr Asaid did not have any of the 2023 post-operative radiology.
92The plaintiff reported he experienced severe right shoulder pain, described as a burning sensation. He experienced numbness from the top of his shoulder, radiating down his right arm. His right arm felt weak.
93The plaintiff relied heavily on the use of his left arm for essentially all activities. The plaintiff reported difficulties with his driving (not mentioned in in his Affidavit material). The plaintiff said he could tolerate driving short distances and mainly gripped the steering wheel using his left hand.
94The plaintiff was taking Panadol, Celecoxib and Panadeine Forte daily and Endone twice a day.
95Mr Asaid observed the plaintiff had difficulty removing his t-shirt and jacket for the examination. On clinical examination, Mr Asaid found restrictions in the range of motion of the plaintiff’s right shoulder in abduction, forward flexion, external rotation and internal rotation of the right shoulder.
96Mr Asaid opined that the right shoulder was irritable and there was evidence of both supraspinatus and infraspinatus weakness on the right side.
97Mr Asaid opined that the plaintiff was unlikely to benefit from any further surgical treatment, he required ongoing review with a pain specialist and further physiotherapy/hydrotherapy treatment.
98Mr Asaid opined that the prognosis was poor. He was of the opinion that the plaintiff had developed chronic right shoulder pain which had failed to respond to both operative and non-operative management.
99In relation to capacity for suitable employment, Mr Asaid opined the plaintiff was likely to be restricted from pushing, pulling or lifting, repetitive pushing, pulling or lifting, and reaching.
100Mr Asaid opined he did not “realistically believe” the plaintiff had capacity for suitable employment including the roles relied on by the defendant.
101Mr Asiad said:
“[The plaintiff] … is now 56 years of age, he has no secondary or tertiary education, limited English language skills, limited work experience in Australia, and he is relying on opioid medication to manage his pain. I therefore consider it very unlikely that he would be able to procure or maintain a suitable role. This incapacity is likely to continue for the foreseeable future.”[49]
[49]Plaintiff Exhibit P7, PCB 68
102Mr Asaid prepared a supplementary report dated 5 November 2024, after viewing surveillance footage taken on 7 January 2024. Mr Asaid said that the movements shown in the surveillance were in keeping with his examination findings and did not cause him to alter the opinions expressed in his earlier reports.
Dr James Crompton, Occupational Physician
103The plaintiff tendered a report of Dr Crompton dated 24 October 2024.[50] Dr Crompton examined the plaintiff on 26 September 2024. After the examination, Dr Crompton was given the January 2024 surveillance footage and report.
[50]Plaintiff Exhibit P8, PCB 74-96
104Dr Crompton noted that the plaintiff’s pre-injury work included moderately to heavily physically intensive tasks which required him to use his arms.
105The plaintiff’s complaints to Dr Crompton about his right shoulder pain and impacts on his activities of daily living were largely consistent with the plaintiff’s Affidavit evidence.
106It was additionally noted the plaintiff found driving difficult and limited his driving to about 15 minutes.
107On clinical examination, Dr Crompton found atrophy of the right shoulder musculature. There was fleeting tenderness to palpate the right sub acromial space and lateral upper arm, but not the main bony landmarks in either shoulder.
108Dr Crompton recorded restrictions in the ranges of motion in the right shoulder when compared to the left shoulder (noting that the left shoulder range of motion was in the normal range).
109Dr Crompton found irritability with acute impingement, and weakness of both the supraspinatus and the subscapularis in the right shoulder. There was no evidence for instability of the shoulders.
110Dr Crompton diagnosed a significant rotator cuff rupture which had required surgical intervention. The surgery was of limited benefit. The plaintiff had limitations of active movement in all planes.
111Dr Crompton found no evidence to support complex regional pain syndrome per se but considered that the plaintiff had plausibly progressed to a syndrome featuring chronic pain.
112Dr Crompton said that the plaintiff may have suffered a progression to a diagnosable psychiatric illness which should be diagnosed by a psychiatrist. He also recommended psychiatric and psychological treatment.
113Dr Crompton viewed surveillance footage dated 7 January 2024 which he concluded was relatively unhelpful to the assessment of physical injury.
114Specifically, Dr Crompton said:
“Footage from January 2024 does little to confirm or detract from my interview and examination of September 2024. … this video demonstrates only (probable) minimal weight bearing with negligible shoulder movement; which is not inconsistent with the claims made by the subject at interview; that he favoured his left arm for handling, and had a limited, but not absent – range of active movement in his right arm.
… .”[51]
[51]Plaintiff Exhibit P8, PCB 87
115Dr Crompton opined the plaintiff was likely to be precluded from pre-injury employment.
116Dr Crompton addressed the matters referred to in the definition of “suitable employment” in the Act.
117With respect to suitable employment, Dr Crompton opined the plaintiff did not have capacity for suitable employment –
“… primarily on the grounds of considerable and significant impairment about … [the plaintiff’s] right, dominant upper limb, his skill set limited to manual handling and his English language capabilities that are lucky [scil likely] to preclude him from learning new skills, or operating where any degree of interaction in the English language is likely to be required.”[52]
[52] Plaintiff Exhibit P8, PCB 91
118In terms of recommended work restrictions, Dr Crompton considered:
· pushing, pulling and lifting through his spine, particularly with any mass over 3 kilograms, and particularly above chest height, would likely onset progressed symptoms of pain and stiffness.
· repetitive and prolonged use of the right upper extremity (especially whilst bearing weight) would also likely cause progressed symptoms of pain and stiffness and should be avoided where possible.
· overhead activity of the right upper extremity, including climbing into cabs and climbing ladders would be unsafe and should be deferred indefinitely.
119Dr Crompton considered the plaintiff’s English-speaking abilities. He noted that the plaintiff’s English language level had not precluded him from employment in a field in which he was familiar; however, he anticipated this was at an entry level and his capacity for progression in such fields may have been limited. Entry into an alternative profession which the plaintiff could undertake physically may be precluded by difficulties in understanding language and instructions. Dr Crompton anticipated that suitable roles would be those already familiar to the plaintiff or roles which could be taught with a high degree of repetition.
120Dr Crompton also considered the plaintiff’s age, and the length of time spent away from the workforce, and also referred to the plaintiff as having “consequent psychological illness” and a perception of himself as impaired, as factors contributing to his limited likelihood of success in returning to gainful employment.
121In relation to the five jobs relied on by the defendant, Dr Crompton gave detailed reasons as to why each were unsuitable:
122The delivery driver (light items) and courier (lighter items) jobs were unsuitable, predominantly because of the plaintiff’s physical incapacity due to the plaintiff’s demonstrated impairment. Dr Crompton noted concerns about load limits as well as a concern that the shoulder symptoms could be exacerbated when elevating his right shoulder to grip and manipulate a steering wheel. Additionally, Dr Crompton considered that the plaintiff would need to improve his English language skills to cater to software and language requirements.
123The carpark attendant job may be physically suitable, but the plaintiff’s English language abilities may be insufficient for him to perform the problem-solving elements and customer-facing nature of the job.
124The product assembler (light items) job may be physically suitable but would require a strict position description in which there could be no expectations that the plaintiff would manually handle beyond his assessed physical capacity. His physical capacity was limited to handling small and light components with no exposure to powered and reciprocated tools through the right upper limb, and no rotation to picking and packing or despatch stations unless this has been previously assessed as being potentially achievable. Adequate comprehension skills could be trained into such a role.
125The console operator job was probably unsuitable. Dr Crompton said the job appeared to him to be similar to a supermarket checkout role, which would entail highly repetitive motion of the shoulder girdle in an oscillating abduction and adduction fashion, which may be physically achievable but could entail a high likelihood of recurrent symptoms. Dr Crompton also considered the plaintiff lacked the language and customer service skills for the role and would require adequate comprehension skills to be trained for the role.
Defendant’s medical material
Treaters
Cranbourne Stawell Clinic records
126The defendant tendered the attendance records of Cranbourne Stawell Clinic from the period 2 February 2023 to 4 November 2024.[53]
[53]Defendant Exhibit D9, DCB 125-137
127The plaintiff was cross-examined on these notes.
Defendant’s medico-legal experts
Mr Siva Chandrasekaran, Orthopaedic Surgeon
128The defendant admitted that it had arranged for the plaintiff to be examined by Mr Siva Chandrasekaran, who prepared a report dated 26 June 2023. Neither party tendered the report.[54]
[54] T111, L13-23
Dr Philip Mutton, Occupational Physician
129The defendant tendered reports of Dr Mutton dated 26 August 2021 and 27 January 2022.[55] Dr Mutton examined the plaintiff on 26 August 2021.
[55]Defendant Exhibit D3, DCB 49-53
130Dr Mutton’s examination of the plaintiff took place a year before the plaintiff’s final shoulder surgery.
131At the time, the plaintiff was on a return-to-work program working half days five days a week moving motor vehicles, and believed he was capable of doing benchwork as a mechanic but not of overhead work which Dr Mutton found was understandable given the pathology.
132Dr Mutton did not review the plaintiff after his third operation. His opinions do not assist the Court in determining the plaintiff’s current capacity for suitable employment.
Dr David Barton, Occupational Physician
133The defendant tendered a report of Dr Barton dated 7 February 2024,[56] who examined the plaintiff on the same date.
[56]Defendant Exhibit D4, DCB 56-61
134Dr Barton stated he had been provided with the plaintiff’s x-rays and other investigations but did not specifically list what had been provided to him.
135On clinical examination, Dr Barton observed:
(a) the plaintiff at times tended to hold his arm closely beside his chest while on other occasions he moved freely as he gestured. Dr Barton opined the plaintiff was strongly symptom and disability focussed with a strong sense of injury;
(b) the left upper arm circumference was greater than the right;
(c) there was a normal muscular contour over both shoulders. There was a normal keratinisation pattern in both hands. There was no wasting in the small muscles in either hand;
(d) there was some moderate tenderness around the right shoulder joint with marked limitation of all right shoulder movements (less than half of the expected range). Dr Barton observed there was grimacing and complaints of pain, falling under the weight of moving the right arm and holding onto the left arm with left hand;
(e) the plaintiff’s sensation and reflexes were normal in the upper limbs. Muscle power was generally reduced with poor effort throughout the right arm. Testing with the Jamar dynamometer showed a result of 10 on the right and 41 on the left.
136Overall, Dr Barton opined a considerable degree of illness behaviour was playing a part in the plaintiff’s presentation including marked limitation of shoulder movements which seemed exaggerated to Dr Barton, grimacing and complaints of pain and generalised weakness throughout the right arm. Dr Barton opined that the Jamar dynamometer results were feigned.
137Dr Barton noted that the plaintiff had three operations and still claimed escalating symptoms. He considered that the plaintiff seemed well entrenched in his sick role. For these reasons, Dr Barton gave a guarded prognosis.
138Dr Barton opined the plaintiff –
“… now has some persistent dysfunction of the shoulder following multiple surgical treatments, one of which I believe was accepted as being a work related operation. I would see his shoulder problems as being related to a soft tissue problem that was complicated by surgical procedures which did not help.”[57]
[57]Defendant Exhibit D4, DCB 60
139Dr Barton accepted some of the mechanical tasks of the plaintiff’s pre-injury work may be difficult for the plaintiff, particularly in view of the extent of surgery he has had.
140Dr Barton believed the plaintiff had capacity to perform all of the roles outlined in the WorkAble Consulting Report dated 15 October 2021 on a full-time basis, “if so motivated”.
141Dr Barton expressed the view that the plaintiff had little interest in return to work while the compensation process was underway, and that the plaintiff’s injury belief, “motivational factors” and “questionable social skills” may be playing a part in the plaintiff’s motivation to return to work.
Dr Ian Dickinson, Consultant Orthopaedic Surgeon
142The defendant tendered a report of Dr Dickinson dated 18 November 2024.[58] Dr Dickinson examined the plaintiff on 30 October 2024.
[58]Defendant Exhibit D5 ( Not in DCB)
143At the examination, the plaintiff reported he drove his car very little, and 10 or 20 minutes of driving made his pain worse.
144Dr Dickinson observed the plaintiff held his right arm lamely. He noted the plaintiff was able to undress readily.
145On clinical examination, Dr Dickinson found mild tenderness over the front of the right shoulder, and wasting of the right shoulder girdle region. On power testing, there was pain in the right shoulder. He found restrictions in the range of motion in relation to flexion, abduction, adduction and internal rotation.
146Dr Dickinson diagnosed degenerative disease in the right shoulder associated with failed rotator cuff repair. He opined there was tendinosis of both the supraspinatus and subscapularis, with a tiny degenerative tear in the supraspinatus.
147Dr Dickinson found the plaintiff had a permanent disability in relation to the loss of function of his right rotator cuff. At the time of the report, he remarked the rotator cuff dysfunction restricted the plaintiff from undertaking any overhead activity and any heavy activity. The prognosis was generally poor.
148Dr Dickinson said that the restricted ranges of motion found in the right shoulder upon examination were consistent with a rotator cuff tear and a failure of repair, which correlated with the later radiological finding where there is a tear of the supraspinatus which is unresolved. Dr Dickinson also opined the plaintiff’s symptoms and clinical findings evidenced abnormal illness responses.
149He opined there was functional overlay and a pain disorder associated with the plaintiff’s physical findings. In giving that opinion, he noted the plaintiff generally held his arm in a lame fashion, though was able to dress and undress.
150Dr Dickinson opined the plaintiff would not be able to return to his pre-injury duties and would not be able to return to full mechanic and tyre-fitting duties.
151Dr Dickinson found the plaintiff had the capacity for a graduated return to full-time work in suitable employment provided there are restrictions on strength and overhead activity in the right arm.
152Dr Dickinson opined the plaintiff had the capacity to perform the five jobs relied upon by the defendant on a full-time basis.
Vocational material
153In order to understand the medical opinion on the question of “suitable employment” it is necessary to set out the vocational material in some detail.
Occupational Rehabilitation Return to Work Service Initial Report by WorkAble Consulting dated 24 February 2020
154This report was tendered by the defendant.[59]
[59] Defendant Exhibit D7, DCB 98-105
155This report is of limited relevance, because it precedes the plaintiff’s second and third operations.
Return to Work Arrangement document prepared by WorkAble Consulting dated 16 November 2020
156The plaintiff tendered this document.[60]
[60] Plaintiff Exhibit P19, PCB 110-111
157This report is also of limited relevance given it is more than four years’ old and preceded the plaintiff’s third operation.
Return to Work Arrangements document prepared by WorkAble Consulting dated 18 February 2021
158The defendant tendered this document.[61]
[61] Defendant Exhibit D8, DCB 114-115
159This report is also of limited relevance given it is nearly four years’ old and preceded the plaintiff’s final operation.
130 Week Vocational Report completed by WorkAble Consulting dated 15 October 2021
160The defendant tendered this report[62] and relied upon it to support its assertion that there were five jobs which constituted suitable employment.
[62] Defendant Exhibit D6, DCB 81-95
161WorkAble Consulting conducted a telephone assessment with the plaintiff and an interpreter on 11 October 2021. During the telephone call, the plaintiff said his driving was restricted and he could only drive short distances.
162WorkAble Consulting relied upon a Certificate of Capacity of Dr Lal dated 5 September 2021 and the report of Dr Mutton dated 26 August 2021.
163The Certificate of Capacity set out the following restrictions:
(a) Avoid heavy lifting of more than 5 kilograms – waist to arm height only;
(b) Avoid working above shoulder height;
(c) No pushing/pulling/lifting more than 5 kilograms;
(d) Rest breaks as required;
(e) Full-time hours per day.
164WorkAble Consulting identified the five jobs which it said were suitable.
165The job of delivery driver was deemed to be suitable if lifting/pushing/pulling above 5 kilograms was limited, along with the need to work above chest height, so as to align with the restrictions certified by Dr Lal in his 5 September 2021 Certificate of Capacity and recommended by Dr Mutton in his report dated 26 August 2021.
166The job included loading and unloading operations, constant driving, and frequent repetitive hand and arm movements required to operate a van or car.
167The job of Courier (Light items) was considered suitable provided that lifting/pushing/pulling above 5 kilograms was limited, along with the need to work above chest height, so as to align with the restrictions certified by Dr Lal in his 5 September 2021 Certificate of Capacity and recommended by Dr Mutton in his report dated 26 August 2021.
168The job required a person to attend to receiving and sorting delivery orders and maintaining records with medium to heavy physical demand levels including frequent lifting and carrying and constant driving.
169The job of car park attendant was considered suitable if lifting/pushing/pulling above 5 kilograms was limited, along with the need to work above chest height, so as to align with the restrictions certified by Dr Lal in his 5 September 2021 Certificate of Capacity and recommended by Dr Mutton in his report dated 26 August 2021.
170The job was seen to have sedentary to light physical work demands with constant sitting or standing at sales counters or occasionally walking about the carpark assisting customers.
171The job of Product Assembler (light items) was considered suitable, provided that lifting/pushing/pulling above 5 kilograms was limited, along with the need to work above chest height, so as to align with the restrictions certified by Dr Lal in his 5 September 2021 Certificate of Capacity and recommended by Dr Mutton in his report dated 26 August 2021.
172The job required frequent stretching, both up and across, to weld, bolt, rivet or otherwise join and fit mechanical components in place, or carry out finishing tasks such as grinding, as well as occasional squatting, crouching, kneeling or bending and occasional twisting of the body and neck. There would be frequent handling of welding and general light engineering tools; frequent lifting and carrying of engineering materials, components and equipment; frequent repetitive tasks including the use of hands and arms for holding welding, soldering, brazing, riveting or grinding equipment, as well as the use of overhead lifting equipment.
173This job of Console Operator was alternatively referred to as a checkout operator or office cashier. The report set out potential local employers for this job which were all petrol stations.
174It was considered that this job was suitable, provided that lifting/pushing/pulling above 5 kilograms was limited, along with the need to work above chest height, so as to align with the restrictions certified by Dr Lal in his 5 September 2021 Certificate of Capacity and recommended by Dr Mutton in his report dated 26 August 2021.
175The jobs entailed constant standing or sitting and occasional walking. It was said that lifting and carrying would be required to a medium physical demand range.
176The vocational assessors said that on-the-job training would be provided for each of the jobs and the plaintiff would be able to undertake all of the jobs with his basic verbal English knowledge.
The Plaintiff’s oral evidence
177There were two main areas explored in cross-examination and re-examination:
(a) Knee problems;
(b) The plaintiff’s English abilities.
Knee problems
178The plaintiff was cross-examined about GP attendances in 2015, 2023 and 2024 which referred to knee pain and knee osteoarthritis.
179The defendant cross-examined the plaintiff on a note of attendance at the Casey Gate Medical Clinic with Dr Amena Azizi, GP, on 13 June 2015. This record was not tendered. The note referred to pain in both knees and hips. It also recorded that the plaintiff was unable to use stairs and was unable to work. The plaintiff disputed the record and said he believed he was working as a bricklayer in June 2015.[63]
[63] T30
180The defendant tendered attendance records of Cranbourne Stawell Clinic from the period beginning on 2 February 2023 and ending on 4 November 2024.[64]
[64] Defendant Exhibit D9, DCB 125-137
181The notes revealed multiple attendances due to bilateral knee pain and osteoarthritis. It was recorded on 2 August 2024 that the plaintiff was using bilateral knee support and could not walk for more than 30 minutes without the knee support.
182The plaintiff said he could recall seeing the doctor once because of his knees.[65] Despite this recollection, he agreed that he told Dr Kilani on 5 April 2023 that he had bilateral knee pain which was radiating down the calf of the leg.[66] He also agreed that on 20 April 2023, he reported to Dr Kilani that he was having issues with his knee, with occasional flare-ups,[67] and he accepted that he saw Dr Kilani about both knees on 2 August 2024.[68]
[65] T35, L16-22
[66] T31, L26 – T32, L2
[67] T34, L9-12
[68] T37, L6-8
183The plaintiff said he attended a physiotherapist on three occasions because of his knees.[69] He said that after the physiotherapy, his knees got better.[70]
[69] T42, L10-13
[70] T35, L19-22
184The plaintiff disagreed that Dr Kilani advised him to attend hydrotherapy, but agreed he was advised to do some sort of bike riding and to do something about his weight to help with his knees.[71]
[71] T37, L17 – T38, L2
185The plaintiff was cross-examined about the report of Mr Dean Harrop dated 10 September 2024, who saw the plaintiff about his knees and his right shoulder.
186The plaintiff said he could not recall telling Mr Dean Harrop that he was unable to kneel or squat. The plaintiff denied he told Mr Dean Harrop that he had problems with standing for more than 20 minutes. The plaintiff said that long stairs were an issue for his knees.[72]
[72] T42, L30 – T43, L5
187The plaintiff denied he currently had pain or restrictions in both knees, and said his capacity to work and stand is fine.[73]
[73] T50, L31 – T51, L7
188The plaintiff said his knees did not affect his ability to drive,[74] and did not affect his sleep or his ability to socialise.[75]
[74] T52, L2-4
[75] T54, L6-9
189The plaintiff said that the only medication he had taken for his knees was Panadol and the rest of the medication was for his right shoulder.[76]
[76] T53, L5-9
190Despite cross-examining on the point, the defendant did not make any Peak[77] type submissions regarding the plaintiff’s knees.
[77]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
English abilities
191The plaintiff was cross-examined about his level of English proficiency, and, in particular, his use of English while working in his pre-injury role as a mechanic whilst working at the Toyota workshop for the employer.
192The plaintiff’s evidence was he completed an English course after coming to Australia. Before starting work with the employer, he completed a Certificate III in mechanics in Dandenong, over the course of a year about two to three days per week.[78] The plaintiff said he obtained this qualification due to his previous experience as a mechanic in Iran and Afghanistan.[79] He said he completed the written tests or assessments in the course with the help of an interpreter[80] and there were other trainees at the course who spoke his language and helped him.[81]
[78] T100, L14-18
[79] T100, L24-27
[80] T101, L16-20
[81] T106, L27-31
193The plaintiff spoke English when he was working at the Toyota workshop.[82] The plaintiff said his reading in English was not great and he could not write in English.[83]
[82] T79, L30-31
[83] T108, L28 – T109, 2
194The plaintiff said that for about two years there was a Dari-speaking co-worker named Ishak at the Toyota workshop. He said Ishak performed the reading and writing aspects which entailed reading car manuals and maintaining vehicle service and repair records for him. Later on, there were other workers or trainees who would assist the plaintiff in the same way.[84]
[84] T84, L4-28
195When performing alternative duties between the second and third operations, the plaintiff says he was provided with a piece of paper with a “part number” on it, or he would write the part number down and he would be given the relevant part.[85]
[85] T85, L15 - T86, L2
196The plaintiff said that a barrier to him completing further English training was that his shoulder pain affected his mind and concentration.[86]
[86] T87, L4-13
Surveillance footage
197The plaintiff was placed under surveillance for a total of 48 hours on 28 December 2023, 7 and 9 January 2024, and on 4, 8, 9, 13, 14 and 16 November 2024.[87] It is unclear whether the plaintiff was sighted on each of those days.
[87] T110, L19 – T111, L1-7
198A total of 51.5 minutes of footage was played and tendered to the Court, taken on 7 January 2024, 8 and 13 November 2024, 14 November 2024, and two pieces of footage, each dated 18 November 2024.[88]
[88] Defendant Exhibit D1
Right arm and hand use
199The footage shows the plaintiff generally favouring his non-dominant, non-injured hand, carrying things with his left hand and performing tasks with his left hand.
200On one occasion on 7 January 2024, the plaintiff used both arms to lift an empty wire rack with wheels on it to shoulder height and place it on top of a pile of wooden items on his nature strip.
Knee problems
201The plaintiff was seen squatting on two occasions: On 13 November 2024, when inspecting the rims of a front car wheel; and on 18 November 2024, when holding a string to level some lawn.
English abilities
202On 13 November 2024, the plaintiff accompanied his cousin to inspect a Toyota Hilux that his cousin was looking to buy. The footage showed the plaintiff conversing with the owner of the car. The plaintiff said the owner spoke a little bit of Farsi and that they spoke using a mixture of basic English and Farsi.[89]
[89] T70, L2-5
203The plaintiff was seen leafing through a small booklet or collection of sheets of paper. The plaintiff said the words on the pages were in English, and he merely matched the licence plate of the vehicle with the one written in the book.[90]
[90] T68, L25 – T69, L2
Defendant’s submissions on credit
204The defendant submitted that the footage of 13 November 2024 showed the plaintiff moving his right arm spontaneously, below shoulder level, when gesturing “freely” while in conversation with another person, and that this contrasted with the Dr Dickinson’s observation at examination on 30 October 2024, that the plaintiff was holding his arm lamely.[91]
[91] T134, L18-24
205The defendant submitted the plaintiff’s non-disclosure of issues with his knees, and the denial of them when confronted with contemporaneous material in relation to his knees was significant with respect to the plaintiff’s credit.[92] The defendant pointed out the plaintiff did not disclose issues with his knees in his affidavits, nor did he mention them to Dr Crompton, Mr Asaid or Mr Dickinson.[93]
[92] T138, L18-23
[93] T137, L29-T138, L3
206The defendant relied on the Certificate of Capacity dated 7 August 2022, the records of Cranbourne Stawell Clinic, as well as the comments of Dr Kilani upon examination on 1 November 2023 and Mr Dean Harrop on examination on 10 September 2024, to support the proposition that there was an “‘ongoing knee problem” up to and including 24 October 2024.
Plaintiff’s submissions on credit
207Counsel for the plaintiff submitted the plaintiff gave his evidence in an honest manner and should be accepted as a witness of truth.[94]
[94] T172, L10-11
208Counsel outlined a number of instances where it was said the plaintiff made appropriate concessions.
209Counsel for the plaintiff could not offer an explanation as to why the plaintiff was silent in his affidavits as to problems with his knees, other than suggesting the plaintiff was not asked to refer to this in his Affidavits.[95]
[95] T175, L14-18
210Counsel for the plaintiff submitted the surveillance showed the plaintiff undertaking activities which were consistent with his presentations to his treaters.
Findings on credit
211The plaintiff appeared to be focussed on advocating for himself. There were multiple times when he would not directly answer the question asked of him, and/or would add additional details onto the end of his answer to assist his case.
212It was difficult to assess the plaintiff’s English-speaking abilities and his ability to read and write in English. I accept that his skill level in each of these areas is quite low.
213Considering all the evidence, including the medical material and surveillance footage, any reservations I have about the plaintiff adopting the advocate role do not ultimately impact upon the plaintiff’s case.
214I saw the footage in Court and have reviewed it for the purpose of this judgment. I agree with the comments made by Dr Crompton. The footage was unremarkable.
215I find that the footage largely depicted the plaintiff acting consistently with the complaints to the Court and to medical practitioners and examiners. It showed the plaintiff favouring his non-injured, non-dominant hand. The action of lifting an empty wire rack was relatively innocuous and did not impugn the plaintiff’s reliability.
216It was also suggested that the plaintiff had used his right hand to point or gesture. Counsel for the plaintiff submitted this was fairly insignificant and innocuous.[96] I accept that submission.
[96] T193, L15-20
217I find that the footage is consistent with the plaintiff’s evidence that he was not restricted by his knees. He was seen squatting on two occasions without issue and standing.
218I find that the fact that the plaintiff did not mention his knees in his Affidavits is of little consequence in this case given the plaintiff’s oral evidence on this point and the surveillance material.
219The Court is unable to determine from the footage whether or not the plaintiff was, as he said in cross-examination, speaking in a mixture of basic English and Farsi.
220The footage does not assist the Court in determining anything about the plaintiff’s English language skills.
221Overall, the footage was, in my opinion, a non-issue.
What is the Plaintiff’s injury?
222Having considered all of the evidence, I find that the plaintiff suffered a rotator cuff injury which required surgical intervention.
223I find that the three operations were partially unsuccessful.
224I find that the plaintiff has been left with ongoing post-surgical pain and restrictions in his range of shoulder motion and he has severe atrophy of the muscles in his right shoulder.
Submissions on loss of earning capacity
“Without injury” earnings
225The parties agreed the plaintiff’s 2018/2019 tax year (in which he earnt $50,858 gross) most fairly reflected the plaintiff’s “without injury” earnings, which amounts to $978 per week.[97] Sixty per cent of that figure is $30,515 gross per annum which is $587 gross per week.
[97] T120, L21 – T121, L1-8
“With injury” earning capacity
226The jobs relied on by the defendant paid gross earnings for full-time work which would exceed $30,515 gross per annum/$587 gross per week.
227The pay rate for the jobs were as follows:
(a) Delivery Driver (light items) - $1,010;
(b) Courier (lighter items) - $1,277;
(c) Car Park Attendant - $1,224;
(d) Product Assembler (light items) - $963; and
(e) Console Operator - $900.
The Plaintiff’s submissions on capacity for suitable employment
228Counsel for the plaintiff said:
(a) the 130 Week Vocational Report of WorkAble Consulting dated 15 October 2021 predated the plaintiff’s final operation and was more than three years’ old;
(b) the vocational assessment report was prepared when the plaintiff was working at the time. He is now unfit for duties;[98]
(c) there was no current evidence before the Court assessing the plaintiff’s capacity and suitability for alternative employment;
(d) there was no employment for which the plaintiff is suited when regard is had to the definition of “suitable employment”;
(e) each of the five jobs were beyond the plaintiff’s physical abilities.
[98] Plaintiff’s Written Outline of Submissions, undated, paragraph [11]
229Dr Kilani, Mr Asaid and Dr Crompton opined that the jobs were not suitable.
230Dr Kilani continues to certify the plaintiff fit for 8 hours’ work per week.
231Mr Raleigh’s opinion regarding returning to work was his view in relation to patients in general, from which he then commented on the plaintiff’s specific restrictions.[99]
[99] T199, L15-25
232Dr Crompton, as an occupational physician, was the most qualified to give an opinion about language abilities and how they could impact on a person’s ability to obtain suitable employment.
233It was submitted that the Court should reject Dr Barton’s view that the plaintiff was not motivated to work as Dr Barton did not explain how he reached this view, and it was contrary to the evidence, as the plaintiff has worked when he was certified fit to work.[100]
[100] T223, L10-15
234As far as issues concerning the knees were concerned, Counsel for the plaintiff emphasised that the plaintiff’s incapacity for work is by reason of his dominant right arm injury.[101]
[101] T181, L17-19
235Counsel for the plaintiff submitted that the height of the evidence about the plaintiff’s knee problem, insofar as the defendant’s suggestion that it would impact the plaintiff’s capacity for work, is that the plaintiff had taken some paracetamol medication and says he is otherwise not restricted with standing, walking or crouching.[102]
[102] T178, L31 – T179, L13
236In relation to the defendant’s submissions about appropriate retraining, Counsel for the plaintiff suggested to the Court that it could be a matter of commonsense, rather than medical opinion, that a person who experiences constant pain, such as that claimed by the plaintiff, may also experience an impaired ability to concentrate.[103]
[103] T171, L14-23
237The defendant had not met its evidentiary burden to establish there are alternative employment opportunities available to the plaintiff.
The Defendant’s submissions on the Plaintiff’s capacity for suitable employment
238Counsel for the defendant:
(a) relied on the Certificate of Capacity of 7 August 2022 which certified the plaintiff fit for pre-injury hours with restrictions. The defendant relied on this certificate notwithstanding that it predated the plaintiff’s final surgery.[104] The plaintiff was working 25 hours per week as at August 2022;[105]
(b) submitted that Mr Raleigh’s opinion that “patients with a deficient cuff can do work with some restriction with overhead lift” related to the plaintiff;[106]
(c) the plaintiff had at least a very basic level of English, and submitted the plaintiff’s reason for not undertaking further English training (that his pain was affecting his concentration) was not a reasonable explanation and there was no medical evidence to support it;[107]
(d) the plaintiff had not deposed in his Affidavit to facing difficulties with driving as a result of his injury and, as such, driving was not a consequence of his right shoulder condition.[108] The defendant made this submission despite the fact the plaintiff mentioned to a number of medico-legal experts that he was having difficulties with driving as a result of his right shoulder.
[104] T146,L17-20
[105] T108, L12-14
[106] T145, L13-17
[107] T154, L11-13 and T155, L13-15
[108] T157, L12-17
Findings on capacity for suitable employment
239The opinions of occupational physicians are of most assistance in determining the question of capacity for suitable employment given their specialty.[109]
[109]Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 at paragraph [96]
240It is significant to note that the plaintiff is currently being certified fit for 8 hours’ work per week by his GP. In addition, Dr Mehr has opined that the plaintiff has no capacity for work.
241It is also significant that the vocational assessment report was completed at a time when the plaintiff was working and was being certified fit for alternate duties with restrictions and before the plaintiff’s third operation.
242The majority of the medico-legal experts have opined that the plaintiff has no capacity for the jobs proposed by the defendant, apart from Dr Barton, who considered that each of the jobs were suitable “if the plaintiff is so motivated” and Dr Dickinson, who supported a graduated return to full-time employment in a suitable role, with restrictions.
243In a confusing opinion, Dr Dickinson also opined the plaintiff has a capacity to work in the five identified jobs on a full-time basis. He has not explained how that opinion sat with his view that the plaintiff required a graduated return to work. He may have meant to say that the plaintiff needed work hardening because he had been out of the workforce for a number of years.
244Dr Dickinson referred to an abnormal illness response which appears to have been based on the plaintiff being able to “undress readily”. It is noted that Dr Dickinson found objective signs including wasting of the right shoulder girdle. He also accepted that the plaintiff’s restrictions and limitations of movement were consistent with the failed rotator cuff repair and the radiology.
245Given the objective signs found by Mr Raleigh (atrophy) and Dr Dickinson (wasting), I find that any abnormal illness response, if it exists, does not play a significant part in the plaintiff’s condition.
246Turning to the opinions of the occupational physicians, Dr Crompton clearly sets out his paths of reasoning when he opined about the unsuitability of the five jobs relied upon by the defendant. Whilst Dr Crompton interpreted the console operator job as being similar to a supermarket checkout job, his overall reasoning is detailed and compelling.
247Dr Barton expressed the view that the plaintiff could undertake the five jobs if he was motivated. He did not comment on the requirements of each job or provide any reasons why, in his opinion, the jobs did constitute suitable employment.
248I prefer the opinion of Dr Crompton as to the suitability of the five jobs.
249Applying the statutory definition of “suitable employment”, I find the following:
(a) the nature of the plaintiff’s incapacity is such that he currently has no capacity for full-time employment in either his pre-injury employment or any of the five jobs proposed by the defendant;
(b) the plaintiff cannot return to his pre-injury employment;
(c) the plaintiff’s age (fifty-six) is not a barrier to employment, nor is his work experience; however, his education and skills – particularly his English language skills – are a barrier to employment;
(d) his place of residence (suburban Melbourne) is not a barrier to employment.
Summary
250Taking all the evidence into account, I prefer the plaintiff’s evidence that he currently has no capacity for employment over the defendant’s evidence.
251I find that the defendant has not satisfied its evidentiary onus to prove that the plaintiff is capable of undertaking suitable employment.
252Therefore, I find that the plaintiff has satisfied his onus to establish that he is permanently unable to undertake suitable employment in which he could earn at least $30,515 per annum.
253In addition, I find that the plaintiff’s loss of capacity to undertake pre-injury employment or suitable employment now and into the foreseeable future satisfies the narrative test.
Disposition
254As the plaintiff has been successful in establishing pecuniary loss, he also has leave to commence proceedings for pain and suffering damages.[110]
[110]Advanced Wire & Cable Pty Ltd v Abdulle (supra)
255I will hear from parties on the question of costs.
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