Aziz v Karacorp Nominees Pty Ltd

[2010] VCC 272

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES/COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-01514

TONY AZIZ	Plaintiff
v
KARACORP NOMINEES PTY LTD	Defendant
(Deregistered)

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JUDGE:	HER HONOUR JUDGE KINGS
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 December 2009
DATE OF JUDGMENT:	14 April 2010
CASE MAY BE CITED AS:	Aziz v Karacorp Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0272

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Application under s.134AB Accident Compensation Act 1995 –serious injury claimed for right shoulder and/or spine, and in the alternative, psychiatric impairment – leave granted to the plaintiff for serious injury to shoulder/right arm for loss of earning capacity and pain and suffering.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L R Paine	Zaparas Lawyers
For the Defendant	Mr R Meldrum with	Hall & Wilcox
Ms H Donmez
HER HONOUR:

1 The plaintiff seeks leave to commence proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to recover damages arising out of his employment with the defendant from August 2004, until September 2005.

2 It is alleged by the plaintiff that in the course of his employment with the defendant he was required to perform work which caused a serious injury. The injury being a permanent serious impairment or loss of function of his right shoulder and/or spine within the meaning of paragraph (a) of the definition of “serious injury” in s.134AB(37) of the Act. In submissions, counsel for the plaintiff confined the plaintiff’s claim to the body function or part involved as the right shoulder/arm.

3 Further, and in the alternative, the plaintiff contends that he has suffered a serious injury, being a permanent severe mental or permanent severe behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury” in s.134AB(37) of the Act.

4          The body function is a psychiatric impairment.

5          The plaintiff seeks leave to claim damages against the defendant both with respect to pain and suffering and the economic loss consequences of his employment.

6          The defendant stated that the application was contested on the following basis:

(1) The extent and permanency of any injury to the cervical spine, right shoulder or left shoulder.

(2)	The seriousness of the consequences of any of the claimed injuries.
(3)	Exclusion of psychiatric/psychological consequences from the application founded on paragraph (a) of the definition of “serious injury”.
(4)	Severity of the consequences of the claimed psychiatric condition.

(5) Exclusion of physical consequences from the application founded on paragraph (c) of the definition of “serious injury”.

7          In addition, the defendant put in issue the plaintiff’s credit, asserting that the plaintiff is an unreliable historian who has exaggerated the effect of his injuries upon his life and lifestyle.

The Evidence

8          In bringing the application, the plaintiff relies on his two affidavits, dated 16 April 2008 and 2 November 2009, and an affidavit of his partner, Maria Prodanis, sworn 2 November 2009. The plaintiff gave oral evidence and was cross-examined. He relied upon medical reports of treating doctors and examining doctors.

9          The defendant relied principally upon medical reports.

10        None of the many doctors who provided reports gave viva voce evidence.

11        The evidence can be summarised as follows.

The Plaintiff

12        In his first affidavit, the plaintiff deposed that he was born on 9 October 1968 in Melbourne and is now aged forty-one; he left Boronia Technical School after one day’s study of Year 9. After leaving school he worked as a storeman, machine operator and a baker, interspersed with periods of unemployment.

13        In 2002, the plaintiff commenced work with the defendant, an electroplating company, working occasionally, as required, three to four days a month, whilst receiving unemployment benefits. One of the owners of the business, ‘George’, was going out with the plaintiff’s sister. The plaintiff and his girlfriend, Maria, purchased a house from George while the plaintiff was employed. Settlement of that property was about the time the plaintiff stopped work. Further, there was a short delay in the plaintiff lodging a WorkCover claim.

14        In 2004, the plaintiff worked up to three days a week and was employed full- time from 1 August 2004. There was occasional overtime.

15        The plaintiff’s duties involved wiring and metal polishing. Wiring involved wrapping and twisting copper wire around steel parts and pieces. The wire was about 1 to 2 millimetres thick. The work was varied and very repetitive and involved the repetitious use of his arms and involved heavy lifting. Polishing involved forcibly pushing a polisher against the item that had to be polished. Much of the plaintiff’s work required his arms to be outstretched in front of him and extended above his shoulder.

16        The plaintiff deposed that in about March 2005, he became aware of pain and burning sensations in the back of his right shoulder whilst employed with the defendant. He complained to his boss. He continued to work, taking occasional days off work due to the shoulder pain. The pain became worse and he developed similar but lesser symptoms in his left shoulder and a feeling of numbness and a tingling sensation down his right arm. On Friday, 2 September 2005, he left work early with shoulder pain. He has been unable to return to work. At the time he ceased work he did not have a general practitioner and saw Dr Loizou on 6 September 2005, who he continues to consult. He did not want a WorkCover certificate at the time as he was afraid of losing his job. He tried to discuss changes to his duties and taking annual leave. He was told by his employer that if he intended making a WorkCover claim he should leave his employment.

17        In December 2005, the insurer arranged a vocational assessment which assisted him in seeking employment. He looked for employment through the internet and newspapers for driving jobs and factory work but without success.

18        The plaintiff deposed that he noticed slight improvement in his shoulder after being off work for a month or so, but after that there was no improvement. He became depressed, and in September 2006, he commenced medication.

19        The plaintiff deposed that he suffers constant pain in the right shoulder. He cannot raise his arm above shoulder height without discomfort. Lifting, pushing or pulling vigorously with his right arm causes pain. He cannot sleep on his right side because of pain. He can drive a car but uses the force of his left arm to turn the steering wheel. When opening a door which has a door knob that requires twisting, he uses his left hand because the rotation of the right arm increases his shoulder discomfort. Prior to the injury, he was a handyman and undertook household painting, re-tiling a bathroom and servicing his car. He and his girlfriend purchased their current home with the intention that they would marry and that he would renovate it, which he has not been able to do. His mother and girlfriend do most of the cleaning and provide most of his meals. He does some cleaning and basic cooking. He cannot pursue his interests of gardening, renovating and picture painting as they place physical stress on his right arm.

20        In his second affidavit, the plaintiff deposed that he continued to see Dr Loizou once a month, he still suffers pain in the right shoulder and shoulder blade and the restrictions the pain places upon him remain much the same as in April 2008. He is still not working. He has had no contact with the vocational rehabilitation organization since 2006. He has continued to look for work through newspapers, the internet and friends. He has been seeking light factory work and he has made many enquiries about advertised jobs but only to find they include heavy and repetitive lifting. When he discloses his shoulder injuries, prospective employers are not interested in employing him. In 2008, he stopped looking for work. As a result, he has felt depressed and worthless.

21        In February 2009, the plaintiff consulted a psychiatrist, Dr Syrota. He sees Dr Syrota every two months. In June 2009, he was referred to a rehabilitation and pain specialist, Dr Clayton Thomas.

22        The plaintiff currently takes medication: Effexor SR, two 150 milligram tablets and one 75 milligram tablet daily; Lyrica, one a day for nerves; and Digesic, up to three days a week for the shoulder pain.

23        The plaintiff deposed that the continued discomfort has got him down more; he is more angry and is worried that he takes it out on his girlfriend, Maria.

Ms Maria Prodanis

24        Ms Prodanis, an assistant medical centre practice manager, deposed that she has been going out with the plaintiff since 1994 and that they purchased a house in Balwyn from the plaintiff’s former boss. The plan was that the plaintiff would renovate it, they would marry and move in together. Since the plaintiff’s injury in 2005, he has been unable to renovate the house. He lost his job, which has affected his self-esteem and focus. He has changed, which makes her uncertain about the way she feels about him and their future. She deposed that prior to the injury the plaintiff was a handyman, repaired and serviced her car, painted his unit, was involved in his garden and enjoyed cooking. He was a sociable person and they enjoyed going out with family members. The plaintiff has withdrawn socially. He takes less care in his appearance and grooming.

Cross-Examination of the Plaintiff

25        In cross-examination, the plaintiff agreed that he could drive a manual car. He was questioned about the level of pain he suffered on a range of 0 to 10, 10 being the highest level of pain he ever suffered. Sitting in court he said the pain level in the right arm was at about 5 or 6 and rarely got below that level. He had pain at level 10 every day and said it could be for half the day or it could be for the whole day. He was questioned in detail about his last day at work. He stated he left work early because of a headache, yet he had sworn an affidavit that the pain in the right shoulder had caused him to leave work, which was consistent with the medical records of the general practitioner.

26        He was asked about his previous employment. He said he worked at a bakery for close to two years, yet in his affidavit he had sworn it was for eighteen months. He agreed that the bakery job was the longest period for which he had been employed. He denied that he left the bakery because he got tired, yet he was referred to the medical report from Mr Kornan, who reported that:

“The bakery job took a toll on me and I slacked off.”

27        He conceded that he may have said the job “took a toll on him”, but denied telling the doctor that he slacked off.

28        He agreed he had spent most of his life on unemployment benefits and he was not good at looking for work. He thought this was due to his poor level of education and the fact that he had become discouraged when he did not obtain employment.

29        He was asked about his ability to perform household tasks. His answers were consistent with what he had sworn to in the affidavits and what he told the doctors whom he had seen.

30        He said that his girlfriend was paying the mortgage repayments and his money was used to pay other bills. He was asked whether he had ridden his motorbike. He said he did not think so; he said he had not worked on it but he had started it. The motorbike was sold about three years ago. He denied working on his car other than to top it up with oil and water.

31        The plaintiff presented as a man with limited education, limited opportunities in life and no formal training, with a limited work history. It was clear that prior to the injury the plaintiff had had substantial periods of unemployment. He was frank in saying that he made no real effort to look for work in the twelve months before starting work with the defendant. The plaintiff was cross- examined at length and tended to overstate his case. He was vague on occasions and did not have a good memory. He seemed to become confused. He often had difficulty understanding questions put to him by counsel for the defendant. He spoke in a dull and lifeless voice. He conveyed to me a sense of despair and hopelessness. He was not a confident person. I noted that the plaintiff did not return to court after being cross-examined. Despite some inconsistencies he gave in court and with the affidavits he swore, I formed the view that he was a basically honest man, trying to answer questions as best he could in a most unfamiliar environment and that any exaggeration was due to his lack of education. I noted that there was no evidence of video surveillance which I would have expected given the submissions made by the defendant. I also took into account the fact that he was taking a significant dosage of medication. There was no evidence inconsistent with the plaintiff’s capacity as described in his evidence.

The Plaintiff’s Medical Evidence

32        The medical evidence relied on by the plaintiff may be summarised as follows.

Dr Loizou

33        Dr Loizou provided an extract from his clinical notes which confirmed the plaintiff’s complaint of right shoulder pain and history of pain whilst employed with the defendant. In a letter dated 12 October 2005 to Cambridge Integrated Services, Dr Loizou confirmed the plaintiff’s evidence, that in the last six months of his employment he experienced increasing pain in the scapular areas with radiation of pain and numbness into the arms. The problem was more prominent on the right side and worse when he was resting.

34        Dr Loizou noted that on examination there was marked tenderness over the shoulder girdle muscles, worse on the right side. There was prominent tenderness at the upper border of the scapula in the vicinity of the suprascapular nerve, again more prominent on the right side. It was Dr Loizou’s view that the history and clinical presentation were consistent with Chronic Fatigue/Abuse Syndrome involving the shoulder girdle muscles and possibly associated with suprascapular nerve entrapment. He considered that the plaintiff’s occupation was directly responsible. It was agreed that the plaintiff would not submit a WorkCare claim at that stage, but he would discuss the situation with his employer with a view to amending his work practice by modifying his workstation and alternating duties more frequently. The doctor administered a steroid injection for pain relief.

35        At a review on 28 September 2005, the plaintiff reported that he had been dismissed and that his symptoms were unchanged. Dr Loizou referred him to physiotherapy.

36        In May 2006, Dr Loizou administered a few sessions of laser therapy to the nape in the hope that the plaintiff’s bilateral shoulder symptoms may have relaxed the inflammation/pathology in the nape. This resulted in a negative outcome.

37        In September 2006, the plaintiff complained of irritability, feeling angry, sleeping poorly and fatigue. Dr Loizou considered he was depressed, and prescribed Effexor. He noted that the plaintiff’s physical capacity was limited, for example, when he vacuumed he felt pain in the scapular region. Dr Loizou said the plaintiff had a work capacity for suitable light duties as specified in his WorkCare certificates; that is, to avoid overuse of arms/shoulders and take rest breaks as needed.

38        In November 2006, Dr Loizou ordered a further MRI scan of the cervical and thoracic spine and the right and left shoulder. The MRI scan of the right shoulder showed there was a multilocular paralabral cyst at the posterior inferior glenoid margin extending medially along the posterior border of the scapula between the infraspinatus and teres minor muscle bellies extending over a length of close to 3 centimetres, with a maximum thickness of .5 centimetre. This is associated with irregular fluid signal clefts traversing the substance of the posterio-inferior labrum consistent with tearing, with adjacent irregularity of the glenoid margin.

39        In March 2008, Dr Loizou carried out a review of the radiological investigations to ensure that nothing significant had been missed. On examination, the plaintiff was severely tender over the lower cervical spine, to the point where the doctor suspected bony pathology. X-rays of 1 April 2008 were largely unremarkable, and he presumed that the degree of tenderness related to a decreased pain threshold as part of his chronic state of anxiety/depression.

40        In July 2009, Dr Loizou stated that all treatment options for the shoulder had been explored and failed. He had referred the plaintiff to a psychiatrist, and at her request, to Dr Thomas, a pain management specialist, although he was pessimistic about the outcome.

41        I am of the opinion that Dr Loizou is in a good position to opine as to the level of the plaintiff’s symptoms as he has been the treating general practitioner since the injury, referring the plaintiff to a number of specialists, and continues to see the plaintiff on a monthly basis. I accept his diagnosis of a Chronic Fatigue/Abuse Syndrome which was, in his view, directly related to the plaintiff’s employment. In 2006, he prescribed medication for the plaintiff’s depression. By 2008, he was concerned that the tenderness may relate to his decreased pain threshold as part of his chronic state of anxiety/depression. Clearly, in 2009, Dr Loizou was concerned about the plaintiff’s psychiatric condition. Dr Loizou considered his shoulder pain injury and his psychiatric condition were consequences of his employment.

Dr Lim

42        Dr Lim, a rheumatologist, saw the plaintiff in November 2005 at the request of the plaintiff’s general practitioner. The plaintiff complained of experiencing pain in the right shoulder area for three months. Subsequently, he had pain at night and, despite physiotherapy and steroid injections in the shoulder, his pain did not improve. On examination, Dr Lim said the shoulder joint was normal, but he noted the plaintiff had strain of the external rotators of the shoulder. There was pain on external rotation which was treated by an injection and anti-inflammatory agents. On review two weeks later, the plaintiff said he had some response. Dr Lim referred him to physiotherapy for further treatment.

43        In December 2005, the plaintiff complained that he was not improving, so Dr Lim recommended an MRI scan of the cervical spine which was not approved until February 2006. On 1 March 2006, Dr Lim reviewed the plaintiff and considered the shoulder movements were improved. The plaintiff complained of pain down the right arm. He was reviewed in April 2006 with the MRI scan. The MRI scan showed no abnormality.

44        Dr Lim reported that the problems the plaintiff complained about in March 2006 were not similar to the original problem he had presented with in November 2005. He was unable to say that the complaint he had in March 2006 was due to his employment. He noted that the shoulder pain was better during the visit in March, and the movements were documented as full and normal.

45        From December 2005, the plaintiff was looking for work with the assistance of Cross Links Occupational Rehabilitation Services. I accept that the views expressed by Dr Lim represent the appropriate analysis of the plaintiff’s condition at that time. He was not asked to review the MRI scan of the right shoulder of November 2006 nor was he asked to review the plaintiff again. Accordingly, his opinion is of limited value.

Mr Matthew Evans

46        Mr Evans, a shoulder and knee surgeon, examined the plaintiff on 11 January 2007 at the request of Dr Loizou. The plaintiff provided a history to Mr Evans of a gradual onset of pain in his shoulder in March 2005. The pain was made worse with heavy activity, but had remained stable over the short to medium term. The plaintiff stated that the majority of pain was along the medial border of the scapula, and this was associated with grinding and movement. The movement of the shoulder made the pain worse, particularly elevation.

47        Mr Evans reported that upon examination there was no evidence of muscle wasting, but the plaintiff’s scapula was not symmetrical with the left. It was sitting in a somewhat posed and protracted position at rest. With elevation of the arm there was evidence of mild scapulothoracic dysrhythm and a palpable grating at the superior medial aspect of the scapula. He stated that the range of motion was symmetrical with the left side, but the plaintiff described pain with all movements. It was Mr Evans’ view that the MRI scan of November 2006 of the right shoulder demonstrated some posterior inferior labral damage with an associated paralabral cyst. Other than that, the MRI scan was normal.

48        Mr Evans stated:

“Tony’s constellation of symptoms and signs was difficult to explain with a single diagnosis. I felt that the injury to his posterior labrum and the associated ganglion may be leading to an alteration in his scapulo thoracic dysrhythm then can cause pain and crepitus along the medial border of the scapula. Certainly a majority of symptoms appear to be related to his scapulo thoracic dysrhythm rather than the gleno humeral joint itself. The other possible cause for gleno humeral pain and associated labral changes, may be early degenerative arthritis in the joint.”

49        Because of the unusual nature of the plaintiff’s case, Mr Evans presented his MRI scan and case history at an upper-limb sub-speciality radiology meeting. The opinion at that meeting was that a series of diagnostic injections would be beneficial. The first injection, if successful in relieving the pain, would suggest early glenohumeral arthritis was the cause of the pain. If unsuccessful, an injection to aspirate and infiltrate the ganglion with cortisone and local anaesthetic.

50        In a further report of January 2008, Mr Evans stated that the injections were performed but without relief to the plaintiff. He discussed with the plaintiff the possibility of conducting surgery. As there was no guarantee that the operation would improve his shoulder and there was some risk that the shoulder could be made worse, the plaintiff declined to proceed, which Mr Evans thought entirely reasonable.

51        It was Mr Evans’ view that if the plaintiff could be employed in an occupation that involved minimisation of heavy activity with particular movements, including external rotation of the arm, then his shoulder pain and quality of life would be much improved. He considered the plaintiff had a current work capacity, but that his activities should be modified to minimise lifting and repeated external rotation of the shoulder. Such workplace modification should be considered on an indefinite basis and any vocational re-training the plaintiff undertook needed to be undertaken with this in mind.

52        I accept the view of Mr Evans. He is the doctor with the expertise in the shoulder, he is the treating surgeon and he has discussed the plaintiff’s condition with his colleagues. I prefer his opinion over that of the other doctors who were consulted for medico-legal purposes.

Medico-Legal Assessments

Mr Charles Flanc

53        Mr Flanc, a vascular and general surgeon, examined the plaintiff at the request of the plaintiff’s solicitor in January 2007. Mr Flanc said that in the case of the right shoulder, there were two regions to consider:

(i)

The pain along the medial margin of the right scapular was consistent with musculo-ligamentous strain of the muscles attached between the part of the scapula and the spine. In his opinion, the nature of the plaintiff’s work was consistent with this diagnosis;

(ii)

In relation to the pain in the right shoulder, the investigations revealed a tear of the inferior part of the glenoid labrum with an associated complex cyst. He described it as a most unusual condition, but the description suggested that it may be related to a traumatic cause. He was of the opinion that the plaintiff’s employment with the defendant was a significant contributing factor to the development of this condition.

54        He noted that the plaintiff had a capacity for light alternative employment. He was aware that the plaintiff had no specific trade experience and limited education. He considered there was a possibility that the plaintiff’s symptoms were being enhanced by psychological factors. He had reservations about his ability to find employment.

55        In September 2009, after having read the other medical reports, Mr Flanc said that the opinion expressed by Mr Evans was the most appropriate for diagnostic purposes. Mr Flanc reiterated his earlier view that the pain was referred from the shoulder region. He considered the plaintiff was suffering from a psychological disturbance. It was his view that the plaintiff’s underlying organic condition was still making a significant contribution to his symptoms and consequent disability. He considered the prognosis for improvement was poor and the plaintiff required continuing management of chronic pain, and psychological support.

56        Mr Flanc assessed the plaintiff as having a capacity for light alternate duties. He said that the plaintiff may be able to perform light tasks involving his upper limbs, but would not be able to repeatedly elevate or lift heavy weights. In considering the physical factors only, it was his opinion that the plaintiff had no realistic work capacity, and that this was likely to persist. Further, he thought it was likely that his symptoms were being influenced by his psychological factors, which would further influence his ability to be retrained successfully.

Mr Bruce Love

57        Mr Love, an orthopaedic surgeon, reviewed the plaintiff at the request of his solicitors. He concluded that the plaintiff’s current disabilities related to his original injury. However, his examination was deficient, in that he clearly made incorrect statements in his report. Accordingly, I place no weight upon this report.

The Defendant’s Medical Evidence

Dr Gary Davison

58        Dr Davison, an occupational physician, examined the plaintiff on 20 October 2005, 9 March 2006, 7 September 2006 and in August 2007.

59        In October 2005, Dr Davison was of the view that the plaintiff presented with chronic right shoulder girdle pain. He described the condition as a chronic myofascial strain injury. He noted on inspection there was mild keratinisation and staining of the plaintiff’s hands.

60        The plaintiff was re-examined by Dr Davison on 9 March 2006. He noted that there was mild to moderate keratinisation and staining of both hands, with callus formation along the palms adjacent to the metacarpal heads consistent with repetitive gripping. He stated that the plaintiff’s hands were inconsistent with the history of physical activity given by the plaintiff.

61        It was Dr Davison’s opinion that there was more widespread myofascial tenderness. Otherwise his findings were unchanged. It was his impression that the plaintiff presented with fibro-myalgia or widespread myofascial pain syndrome, which was largely mediated by psychosocial factors.

62        Dr Davison reviewed the March 2006 MRI scan report of the cervical spine which confirmed Dr Davison’s clinical suspicion that there was no mechanical cause for the plaintiff’s symptoms.

63        In his report of 7 September 2006, he reiterated his earlier view that the plaintiff’s presentation suggested chronic widespread myofascial pain syndrome. Dr Davison considered the plaintiff had the capacity to undertake employment of sales assistant, product assembler, hand packer, receiving and despatch clerk and courier.

64        In March 2007, Dr Davison reviewed an MRI scan dated 18 November 2006. The scan provided:

“(1)	No significant cervical or thoracic central canal or foraminal stenosis, with in particular no nerve root impingement;
(2)	Tearing of the posterior-inferior glenoid labrum demonstrated with an associated complex elongated multilocular para labral cyst. Minimal degenerative change with mild chondral thinning over the posterior-inferior aspect of the humeral head;
(3)	No evidence of suprascapular nerve entrapment of either the right or left suprascapular nerve. No degenerative changes of the supraspinatus or infraspinatus muscle belly.”

65        Dr Davison formed the view that the scan could explain the plaintiff’s persistent right shoulder symptoms. He recommended an assessment by a shoulder surgeon. He revised his opinion in regard to current contribution from employment in regard to the plaintiff’s ongoing symptoms. He considered it was reasonable that there was some ongoing contribution from employment activities in regard to the right shoulder pain.

66        In August 2007, he noted that inspection of the hands revealed mild bilateral keratinisation and staining, which he said was consistent with the history. It was his view that the plaintiff presented with signs and symptoms consistent with widespread myofascial pain syndrome which was related to his work. He stated that the plaintiff had a capacity to undertake suitable duties and physical restrictions recommended in his previous report.

Dr Roy Karna

67        Dr Karna, a rheumatologist, examined the plaintiff on 23 May 2007 and 18 March 2009.

68        In May 2007, Dr Karna noted that the plaintiff had normal keratinisation pattern in the palms of both hands. It was his view that the plaintiff had a chronic pain syndrome component.

69        In 2009, Dr Karna described the plaintiff’s injury as a low-grade right shoulder injury which could be deemed an organic work-related injury superimposed upon which he had a very substantial and all-encompassing Chronic Pain Syndrome and possibly a significant depressive illness contributing to that. He stated that the plaintiff’s right shoulder problem would simply preclude him from doing work which required excessive overhead use of his right arm, and heavy lifting. He diagnosed a low-grade right shoulder injury. He saw the plaintiff’s Chronic Pain Syndrome and the psychogenic factors as being more of an issue. He thought the plaintiff’s loss of body function in relation to any right shoulder injury was minor. He did not think he was totally incapacitated for employment. He considered, on physical grounds, the plaintiff had a capacity for suitable employment. His prognosis related predominantly to his psychological state. He recommended a separate assessment of the plaintiff’s psychological state.

70        I note that both Dr Davison and Dr Karna commented upon the keratinisation of the plaintiff’s hands over a number of consultations. The defendant submitted that this was inconsistent with the evidence the plaintiff gave of not being able to do physical work. I do not accept that submission. The comments by the doctors suggest that the keratinisation steadily improved after he ceased physical work. Accordingly, I reject the submission of counsel for the defendant that this affects the plaintiff’s credit.

Mr Peter Battlay

71        Mr Battlay, an orthopaedic surgeon, examined the plaintiff in January 2008. Mr Battlay reviewed the MRI scans of the right shoulder which showed some early degenerative changes of the posterior inferior aspect of the humeral head with tearing of the associated labrum and a multi-ocular parable cyst. He thought that the plaintiff had early osteoarthritis of the right shoulder and thought the impairment was 3 per cent of the whole person.

Mr Timothy Gale

72        Mr Gale, a general surgeon, examined the plaintiff on 2 December 2008. It was his view that there was a significant non-organic component to the plaintiff’s left shoulder symptoms, probably in the form of a Chronic Pain Syndrome, particularly related to the physical nature of the employment duties and partly as a sequelae of interpersonal conflict at his place of employment.

73        I consider the reports of Mr Battlay and Mr Gale were obtained for the purpose of assessing the plaintiff’s level of impairment for other purposes. Mr Gale was only considering the left shoulder. Accordingly, they are of limited value. Further, neither commented on his ability to engage in work and this was because they were requested to perform impairment assessments. The consequences of the plaintiff’s injuries were not something that they were interested in.

Mr Michael Dooley

74        Mr Dooley, an orthopaedic surgeon, examined the plaintiff on 28 July 2009. Mr Dooley said that the plaintiff was capable of carrying out a range of work, including physical work, and it was important that he returns to this. He considered the plaintiff would have difficulty carrying out work that involved regular activity at and above the shoulder level. He thought that the loss of body function resulting from the compensable injury had been mild on a scale of mild, moderate and severe, and that it would persist into the future.

75        I am satisfied that the evidence establishes that:

• the plaintiff experiences constant pain. He takes Panadeine, Panadol or Aspro Clear regularly;

• the plaintiff’s pain interferes with his sleep;

• the plaintiff suffered a gradual onset of pain in his shoulder in March 2005. The pain was made worse with heavy activity consistent with his employment with the defendant. An MRI scan of the right shoulder demonstrated posterior inferior labral damage with an associated paralabral cyst. The plaintiff has undergone a series of injections and the possibility of surgery has been discussed with him;

• he cannot be involved in work which involves lifting, elevation of his arms at or above shoulder level, rotation of the shoulder, work which he performed at the time of his injury;

• he is restricted in engaging in activities such as renovating his house, gardening and painting, activities that he enjoyed prior to the injury;

• he sees his general practitioner monthly.

The Law

76        In order to establish the plaintiff’s entitlement to commence proceedings seeking damages for pain and suffering and loss of enjoyment of life, he must establish, on the balance of probabilities, that he has suffered a permanent serious impairment or loss of a body function or a permanent severe mental or behavioural disturbance or disorder. The test to be applied is subjective, in the sense that it is the effect of the injury which must be considered, but the determination must be objectively made by a comparison with other cases in the range of possible impairments or losses of body functions and or mental or behavioural disturbances or disorders that may be fairly described at the date of hearing, as being more than significant or marked, and as being at least very considerable.

77        In considering the nature and extent of the plaintiff’s injuries, it is necessary for me to separate the organic consequences from the psychological or psychiatric in origin. The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of serious injury and not otherwise: Sections 134AB(38)(h).

78        A number of the doctors whose specialty relates to the physical injury have commented on the non-physical component, namely the psychological/ psychiatric consequences. The psychiatric/psychological doctors have referred to the physical component.

79        However, the medical opinions of Dr Loizou, Mr Evans, Dr Davison, Dr Karna and Mr Flanc did enable me to determine the consequences of the plaintiff’s physical injury.

The Nature and Extent of the Physical Injury: the Shoulder/Right Arm

80        I accept that the plaintiff suffered an injury to the right shoulder/arm, the plaintiff’s dominant arm, as a result of his employment with the defendant. Dr Loizou, the plaintiff’s treating general practitioner, saw the plaintiff in September 2005. The history the plaintiff provided and his clinical presentation were consistent with Chronic Fatigue/Abuse Syndrome. Dr Loizou corroborates the plaintiff’s work history and his complaint of ongoing symptoms.

81        As I have already stated, I place particular significance on the view expressed by Mr Evans. Mr Evans was the treating shoulder surgeon who saw the plaintiff from January 2007 on a number of occasions. Mr Flanc acknowledged the importance of Mr Evans’ diagnosis and stated that the opinions in the other medical reports were much less specific. Mr Evans stated the plaintiff’s shoulder demonstrated posterior inferior labral damage with an associated parable cyst. He treated the plaintiff with a series of diagnostic injections and discussed the possibility of surgery. He considered the plaintiff had a capacity for work but activities should be modified to minimise lifting and repeated rotation of the shoulder. But most importantly, he said the workplace modifications should be considered on an indefinite basis. Mr Evans has based his view on an assessment of the plaintiff’s physical injuries. Accordingly, I accept that this is likely to last for the foreseeable future.

82        Dr Davison saw the plaintiff on a number of occasions, but in August 2007, when he reviewed the November 2006 MRI scan, he considered it could explain the plaintiff’s symptoms. He then accepted that the plaintiff’s employment activities contributed to his symptoms and recommended an assessment by a shoulder surgeon. The plaintiff was being treated by Mr Evans, a shoulder surgeon, at the time. Dr Davison was of the view that the plaintiff could perform identified jobs in a Vocational Assessment Report. Those jobs were as a sales assistant, product assembler, hand packer, receiving and despatch clerk and courier.

83        However, in September 2009, Mr Flanc considered the plaintiff’s prognosis for improvement was poor and said that the plaintiff had no real work capacity, which he considered was likely to persist. He disagreed with Dr Davison that the plaintiff could perform the jobs identified in the Vocational Assessment Report. Mr Flanc said that employment as a production assembler, hand packer, receiving and despatch clerk would involve repetitive movement of both upper limbs. He considered a courier would not be suitable employment because of the difficulty in turning a steering wheel, especially in a manual car. In relation to employment as a sales assistant, he thought the plaintiff’s past work experience – which involved working in a factory, as a baker or as a van driver – would not equip him for a job as a sales assistant.

84        In March 2009, Dr Karna described the right shoulder injury as a low-grade shoulder injury deemed organic and work-related. He said that the shoulder injury in isolation would preclude him from performing work which required excessive overhead use of his right arm and heavy lifting. However, he considered, on physical grounds, he had a capacity for suitable employment.

85        The plaintiff is forty and is dominantly right-handed. The medical view is that as a consequence of his impairment he cannot perform tasks involving his upper limbs repeatedly elevated, and the lifting of weights. This plaintiff is precluded from undertaking heavy work. Given that this man has limited education and limited work experience, this is a significant consequence to him of his impairment.

86        I accept that the physical consequences and the restrictions placed on the plaintiff because of his physical injury and the use of his dominant right arm amount to this plaintiff suffering a severe injury for pain and suffering purposes. I also accept that for this plaintiff there has been a significant reduction in the range of employment open to him, given his limited employment history. These are matters that I am entitled to consider in determining the consequences of his injury. I also accept that the same restrictions that apply to his work capacity also apply to his day-to-day living. The consequences to this plaintiff are that he can no longer engage in activities of renovating his house, painting and gardening. His relationship with his long-term girlfriend has been affected. He takes medication on a regular basis.

87        The question which I am required to consider is whether or not the impairment of the plaintiff’s right shoulder/arm is such as to constitute an impairment which is more than “significant” or “marked” and is at least “very considerable”.

88        I am satisfied that the evidence establishes that the symptoms from which the plaintiff is suffering in his shoulder/right arm are exacerbated by repetitive movement, movement involving strenuous activity and movements which involve stretching or reaching. I am further satisfied that the symptoms which the plaintiff suffers in his right shoulder/arm had the effect of precluding the plaintiff from seeking heavy manual work, the only work in relation to which he has experience. This represents a significant loss to this plaintiff, both with respect to his enjoyment of life and his self-esteem. Having regard to my acceptance of the plaintiff’s evidence as to the ongoing nature of the symptoms which are present and the incapacity of the plaintiff to engage in activities of day-to-day life associated with those symptoms, I am satisfied, by reason of the work with the defendant, that the plaintiff has suffered an impairment of body function which satisfies the definition of “serious injury” as laid down by the Act.

89        In making this finding, I am satisfied the plaintiff’s injury has largely stabilised and that there is no real prospect of significant improvement in the plaintiff’s condition, having regard to the period of time which has now elapsed since the injury.

Has the Plaintiff established his entitlement to commence proceedings with respect to Economic Loss Consequences of the Injury?

90        Notwithstanding the fact that counsel for the plaintiff argued that the plaintiff had no capacity for work due to psychiatric aspects, I consider that the plaintiff is entitled to commence proceedings with respect to the economic loss consequence of his right shoulder injury. This is because the medical evidence was that he could not be involved in work which required heavy lifting, elevation of his arms at or above shoulder level and repeated external rotation of the shoulder. I refer to my comments above.

91        In addition to the narrative requirements to obtain leave to bring proceedings in relation to loss of earning capacity, the plaintiff must also establish that:

(a)	at the date of the hearing he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and also
(b)	after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).

92        The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)	“without injury” earnings; and
(ii)	“after injury” earnings.

93        The former must be calculated by reference to the six-year period specific in s.134AB(38)(f).

94        “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

95        It is to be calculated by reference to that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity.

96        The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.

97        I am therefore required to determine a “without injury” earning figure.

98 Counsel for the plaintiff submitted that the “without injury” earnings should be a weekly figure of $485.31 or $25,236 per annum, being the plaintiff’s earnings in the financial year ending 30 June 2005, being the last completed financial year before the plaintiff was forced to stop work in September 2005. 60 per cent of that figure is $291.19 per week or $15,141.60 per annum. The plaintiff has not worked since he stopped work in September 2005. At the time of this hearing the plaintiff’s gross earnings from personal exertion are nil. Having accepted that the plaintiff has no capacity for his pre-injury employment, the next enquiry is what the plaintiff is capable of earning in “suitable employment” as defined in s.5 of the Act.

99        In Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, at 11, Buchanan AJ said, of s.5 of the Act and the definition of “suitable employment”:

“The definition directs attention to the realities of the labour market. It does require that regard is to be had to any return to work plan. A return to work plan must include an offer of suitable employment,[1] and such an offer may take the form of employment catering for the disabilities caused to a worker by injury, such as the position created for the respondent. It is one thing to have regard to a return to work plan for the light it may throw upon a worker’s ability to work, which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker’s special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s.134AB(38)(f). The definition does not require the second step to be taken.”

and at paragraph 10:

“… If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.”

[1] See s.160 of the Act

100       Justice Forrest, in Acir v Frosster Pty Ltd [2009] VSC 454, at paragraph 188, also took into account the realities of the labour market when considering the issue of suitable employment.

101       Taking into account the plaintiff’s limited education, his limited work history consisting only of manual labour – storeman, machine operator and baker – his right shoulder/arm condition and medical certification for light duties, I find that the plaintiff does not have a capacity for suitable employment.

102 The plaintiff has a loss of earning capacity of 40 per cent or more within the meaning of s.134AB(38)(e) of the Act, which I am satisfied is permanent.

103 I am also required to consider issues of re-training and rehabilitation pursuant to s.134AB(38)(g) of the Act. In light of my findings as to the plaintiff’s impairment and his incapacity for employment, and the fact that neither party addressed me on rehabilitation and re-training, I am satisfied there is no rehabilitation or re-training that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and re-training have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.

104       If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, that is both for pain and suffering and loss of earning capacity: see Forrest J in Acir v Frosster Pty Ltd (above), at paragraph 147, and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.

105       Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity and pain and suffering.

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