Belokozovski, Ilo v ACI Operations Pty Ltd and VWA
[2009] VCC 1490
•24 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-01692
| ILO BELOKOZOVSKI | Plaintiff |
| v | |
| ACI OPERATIONS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 and 9 October 2009 |
| DATE OF JUDGMENT: | 24 November 2009 |
| CASE MAY BE CITED AS: | Belokozovski, Ilo v ACI Operations Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1490 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION –Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury application – assessing physical consequences of injury and consequential impairment loss – causation of current impairment – application in respect of pain and suffering and pecuniary loss.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC and | John Dellios & Associates Pty |
| Mr J F Goldberg | ||
| For the Defendants | Mr A J M Moulds | Herbert Geer |
| HIS HONOUR: |
1 Mr Ilo Belokozovski commenced employment with the first defendant in 1972. On 12 January 2001, he suffered an injury to his left shoulder (“the injury”) whilst attempting to remove bottles which became jammed on a production line which he was employed to supervise. In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for both pain and suffering and economic loss occasioned as the result of the injury.
2 Whilst there is no issue between the parties as to the occurrence of the incident giving rise to the injury, the precise circumstances in which the injury was occasioned and the consequences to the plaintiff of the injury are matters of considerable dispute.
3 It is the defendants’ position that whilst the injury confined the plaintiff to the performance of light duties for a short period of time, he recovered quickly from the effects of the injury, receiving a final clearance from the first defendant’s medical centre on 15 April 2002, and thereafter he was able to perform his normal duties until he was retrenched by the defendant on 6 September 2002.
4 In this application the plaintiff relies upon two affidavits sworn 19 December 2006 and 23 March 2009 respectively. In those affidavits the plaintiff deposes that:
•
He was born on 30 October 1949 in Macedonia where he had eight years of schooling before commencing training as a carpenter. He migrated to Australia at the age of nineteen and after working for short periods of time in unskilled occupations with a number of employers he commenced employment with the first defendant as a factory hand in 1972. He said that his spoken English had never been good and his written English was even worse. He said that apart from working as a factory hand and labourer he had no other employment qualifications.
•
Following his injury, he saw the factory doctor, Dr Middleton, who advised him that he should perform light duties. The plaintiff said that no light duties were available for him and so he continued to do his usual job notwithstanding the fact that he had limited use of his left shoulder. He said that he performed his duties essentially using his right arm only and that he would employ the assistance of a co-worker to carry out any activity which required the use of both arms. This, he said, was the only way in which he could manage his duties.
•
Since his injury he has continued to suffer from pain and restriction of movement in his left shoulder and his shoulder blade. He described the symptoms in his shoulder as limiting his ability to do general maintenance around the house, to work in his garden, to drive a motor vehicle for anything other than short distances and as limiting his ability to lift, push or pull objects with his left arm.
•
In September 2002, the first defendant introduced a new process whereby the plaintiff would not be able to call upon the assistance of a fellow worker whilst managing his production line. The plaintiff said that by reason of the condition of his left arm he was not able to accommodate this change in the first defendant’s production process and that this resulted in his involuntary retrenchment by the first defendant in September 2002. The plaintiff has not worked since that time.
5 The defendants put in issue the plaintiff’s evidence as to the effect of the injury upon him on three bases:
•
Firstly, they assert that the plaintiff’s work did not require him to perform duties of the type he alleges were the cause of his injury;
•
Secondly, they rely on a number of affidavits sworn by Mr Alan Stalker in which Mr Stalker deposes to the capacity of the plaintiff to perform his normal duties following the incident of 12 January 2001.
•
Thirdly, the defendants assert that the medical evidence does not support that the plaintiff suffers an impairment of function of his left shoulder and or his neck which satisfy the definition of “serious” under the provisions of the Accident Compensation Act 1985 (“the Act”) both with respect to financial loss and pain and suffering consequences.
The Conflict in the Factual Evidence as to the Duties involved in the Plaintiff’s
Work6 In his three affidavits, Mr Alan Stalker deposes that the plaintiff’s role was to supervise the operation of production line 42 which was employed to pressure test and inspect glass bottles for defects. He said that as bottles moved along the production line they could become jammed. When this occurred the plaintiff was required to clear the jam in the best method he could think of, either by reaching forward onto the conveyer to manually clear the jam, employing a metal rod to stand a bottle back upright or by breaking the bottle.
7 Video footage was shown to the plaintiff which depicted the operation of a conveyor production line which was similar, although slightly larger than the one which was managed by the plaintiff. In the course of the video, bottles which were moving along the production line were seen to fall over. When this occurred their position was easily corrected by the person manning the production line who would simply reach over and place the bottle in its upright position. On other occasions a light steel arm was used to correct the position of the bottle.
8 Whilst it was suggested that the activities in the video were typical of those which were required to be undertaken by the plaintiff, both the plaintiff and Mr Zdenko Brkic[1] were adamant that the video depicted what they described as minor jams occurring when a bottle fell over and just had to be picked up. They contrasted this sort of incident with incidents in which a bottle became jammed and required considerable force to remove it. They both said that the latter type of incident was a regular feature of their work and that it was in one such incident that the plaintiff sustained his injury
[1] a co-worker of the plaintiff who was called to give evidence in support of the plaintiff’s case
9 The evidence of Mr Stalker does take issue with that of the plaintiff and Mr Brkic as to the fact that in the course of the operation of the production line extreme jamming of bottles could occur, and that when it did, the employment of considerable physical force was required to deal with the problem.
10 Whilst Mr Stalker, in his affidavits, dealt with what was described by Mr Brkic as “little jams which involved the removal or correction of bottles which had fallen over”, he did not specifically deal with the occurrence one way or the other of incidents of the type described by the plaintiff at the time at which he was injured. In these circumstances, I accept the evidence given by both the plaintiff and Mr Brkic that there were occasions in which bottles moving along the production line jammed to the extent that considerable force was required to clear the jam. I further accept the plaintiff’s evidence that he suffered an injury to his left shoulder whilst dealing with such an occurrence.
The Conflict in the Factual Evidence
• The plaintiff’s capacity for work following the injury • Was the effect of the incident of 12 January 2001 such that it was the cause of the plaintiff ceasing his employment with the first defendant? 11 In contending that the plaintiff made a full recovery from his injury, the defendant relies principally upon:
(i)
The fact that its medical department certified the plaintiff as being fit to return to unrestricted duties;
(ii)
The evidence of Mr Stalker who deposed that the plaintiff was never incapacitated by his injury and that he chose to leave the first defendant’s employment not by reason of any incapacity but by accepting a voluntary redundancy package.
12 Mr Stalker said that he did not witness the incident in which the plaintiff alleged he had been injured but that following the incident the plaintiff continued to work in his normal duties and at no time did he report to Mr Stalker that his injuries were in any way affecting his ability to work. Nor was Mr Stalker aware that the plaintiff required the assistance of any other person to perform his duties.
13 Mr Stalker said that late in 2002 the first defendant introduced a new work practice which required two production lines of the type managed by the plaintiff to be managed by only one worker instead of two. He said that the plaintiff refused to work in this new process and accepted a voluntary redundancy package which had been offered to him.
14 Contrary to the evidence of Mr Stalker, the plaintiff asserted that from the time of his injury he had never been fit to perform the duties required of him in managing the number 42 production line without assistance. He said that this assistance was provided by his co-worker, Mr Brkic, who worked alongside him and managed the number 41 production line, a very similar line to that managed by the plaintiff. The plaintiff said that Mr Stalker should have known that following his accident he was required to be employed on modified duties as Mr Stalker would have been notified of this fact by the company sister or doctor. He said that following his accident he told Mr Stalker that, by reason of the injury to his shoulder, he could not manage the work required by the first defendant’s change of system of work which required to manage both lines 41 and 42 without the ability to call upon the aid of a co-worker, and that it was his inability to do that work which led to his involuntary retrenchment.
15 I accept the plaintiff’s evidence on both of these issues for the following reasons:
The Plaintiff’s Capacity for Work Following Injury
16 In support of his case, the plaintiff adduced evidence from a co-worker, Mr Zdenko Brkic, who had been employed by the defendant for thirty years. Mr Brkic said that he recalled the plaintiff sustaining his injury in January 2001 when removing a bottle that was jammed on the production line and that following the injury the plaintiff had favoured his left arm and had required assistance from Mr Brkic in performing duties that required the strenuous use of both his arms.
17 The evidence of Mr Brkic provided unequivocal support for the plaintiff’s evidence that following his injury he was required to seek the assistance of Mr Brkic whenever his work required the use of two strong arms to clear bottle jams. Mr Brkic had no interest in the outcome of the plaintiff’s proceedings. His evidence was tested in cross-examination and he impressed me as a truthful and accurate witness and I accept his evidence. The first defendant’s medical centre records are inconsistent with the position that the plaintiff recovered from his injury and that he worked on without problems associated with his injury for the following reasons:
•
On 12 January 2001, the plaintiff presented at the first defendant’s medical centre complaining of having injured his left shoulder in the course of having to physically dislodge bottles which had been jammed up by using his arms. It was noted on that occasion the plaintiff was unable to raise his left arm above his head. The plaintiff was certified as fit for restricted duties only.[2]
•
The plaintiff continued to present at the first defendant’s medical centre with symptoms of pain and restriction of movement in his left shoulder during January and February 2001.
•
On 13 March 2001, the medical records record that the plaintiff was still suffering from pain in his shoulder. On examination, there was a restriction in each aspect of the plaintiff’s shoulder movement and he was described as still suffering from a significant restriction
•
When the plaintiff was reviewed on 15 April 2001, the medical records record that there was no improvement in the plaintiff’s range of movement. Notwithstanding these findings, the plaintiff was given a final clearance to return to work, the comment being made that the plaintiff’s duties were not very heavy and that he was able to perform normal duties.[3] The provision by the centre of a final clearance on 15 April 2001 is difficult to reconcile with the finding made by the centre on that day that the plaintiff’s range of movement had not improved since 13 March 2001 when it had been described as being significantly restricted.[4] I do not consider the medical assessment of 15 April 2001 as supporting an assertion that the plaintiff had recovered from his injury by that time.
[2] This evidence is consistent with the evidence of the plaintiff and inconsistent with that of Mr Stalker. I do not accept that Mr Stalker was not aware of this certification. The email he received from the medical centre dated 14 February is inconsistent with the proposition that Mr Stalker had no awareness that the plaintiff had been injured and had been attending the first defendant’s medical centre
[3] This comment seems inconsistent with the approach taken on 12 January 2001 when it was considered that the plaintiff’s duties were such that they were beyond him and he was certified for restricted duties.
[4] It is also inconsistent with the evidence of Mr Brkic as to the plaintiff’s continuing incapacity.
18 On 5 April 2002, Patrick Guest, a physiotherapist, commented:
“Igo claims that he is coping reasonably well with his work duties by
focussing on using his right upper limb.”[5]
[5] Plaintiff’s Court Book (“PCB”) 96
19 This notation is inconsistent with the defendants’ position that the plaintiff was experiencing no problems with his duties and is again consistent with the plaintiff’s evidence that his shoulder problems were on going. I interpret the comment by Mr Guest as not only confirming the plaintiff’s evidence that following his injury he had to favour his left shoulder whilst working, but also as reflecting his motivation to continue working in spite of the problems he was experiencing and as an indication of his stoical nature.
20
21 Whilst the defendants point to a comment made by Dr V Hargovan in a report dated 2 March 2005, and repeated in a report dated 3 January 2006, that the chronic pain present in the plaintiff’s left shoulder may be related to his diabetes, it is clear that Dr Hargovan expressed this opinion in the context of the belief that the plaintiff had recovered completely from the initial injury he sustained to his shoulder in January 2001.[6]
[6] See Dr Hargovan’s comments in this regard at PCB 102
22 The plaintiff presented as a truthful witness. Further, his working history with the first defendant, which involved a continued employment for twenty eight years, provides him with considerable credit as to his work ethic. I accept the plaintiff’s evidence that he did not recover from the injury to his shoulder, and in these circumstances I consider the opinion expressed by Dr Hargovan that the plaintiff’s diabetes may be the substantial contributing factor to his left shoulder symptoms as having little weight as it was based on a fundamentally incorrect premise.
23 When the totality of the evidence is considered, I am of the opinion that it does not support proposition that the medical clinic certification that the plaintiff was fit for unrestricted duties as at 15 April 2001 was appropriate or that the plaintiff was fit for unrestricted duties at that time or at any time thereafter during his employment with the first defendant and I accept the plaintiff’s evidence that this was not the case
Was the effect of the Incident of 12 January 2001 such that it was the Cause of the Plaintiff Ceasing his Employment with the First Defendant?
24 It was put on behalf of the defendants that the plaintiff had exaggerated the extent of his injury for the purpose of gaining compensation in circumstances in which he left the first defendant’s employment by accepting a voluntary redundancy package. This assertion is denied by the plaintiff.
25 The chain of correspondence tendered by the defendants relevant to the plaintiff’s termination of employment is as follows
•
On 22 June 2001,[7] the first defendant advised the plaintiff that he could accept employment as a single verifier[8] but that if he declined this job offer he would be employed on tasks for which he had the necessary skills.
•
In a letter dated 2 September 2002,[9] the first defendant asserted that the plaintiff had applied for voluntary redundancy. The plaintiff denies this. There is no documentary evidence to support the defendants assertion[10] and I consider the absence of such documentation to support the plaintiff’s position on this issue
•
In letter dated 6 September 2006,[11] the first defendant asserted that it had been unable to find a suitable position for the plaintiff and that he was to be made redundant. I consider this letter to be consistent with the plaintiff’s evidence that his employment was involuntarily terminated. In the circumstances, I am of the opinion that the chain of correspondence tendered by the defendants relevant to the plaintiff’s termination of employment is inconsistent with the defendants’ position that the plaintiff elected to accept voluntary retirement
[7] Defendants’ Court Book (“DCB”) 190
[8] This meant that the plaintiff would be required to man two production lines and work alone.
[9] DCB 191
[10] The defendants have not produced any application signed by the plaintiff that he be granted voluntary redundancy.
[11] DCB 192
26 I am of the opinion that the plaintiff’s position on this issue is further supported by the fact
(i)
that upon being informed of his redundancy in September 2002, the plaintiff was effectively shut out of the first defendant’s premises but that after involving the union, further work was made available to him.[12]
(ii)
that the plaintiff sought to challenge the validity of his redundancy in proceedings commenced by him in the Australian Industrial Relations Commission.
[12] PCB 24F
27 It was the plaintiff’s evidence that the only reason for his cessation of employment with the first defendant was that he could no longer perform the duties required of him without assistance by reason of the continued problems which he was experiencing in his left shoulder. I am of the opinion that the evidence provides strong support for the plaintiff’s evidence that he ceased his employment with the first defendant by reason of the condition which was present in his left shoulder, and I accept the plaintiff’s evidence on this issue
The Medical Evidence as to the Plaintiff’s Disability
28 Dr Alex Stockman, rheumatologist, who examined the plaintiff on one occasion on 9 February 2005, expressed the opinion that although the incident described by the plaintiff was likely to have caused some damage to his shoulder, it was unlikely that his current presentation was still related to that employment. The reason for Dr Stockman arriving at that opinion is not made clear in the course of his report.
29 Mr Michael Troy, general surgeon, who examined the plaintiff on 2 May 2006, expressed the opinion that the plaintiff had suffered a soft tissue injury to his left shoulder leading to the development of clinically adhesive capsulitis and that the plaintiff’s condition and impairment had stabilised.[13]
[13] PCB 120
30 Mr Kenneth Brearley, orthopaedic surgeon, who examined the plaintiff on 9 May 2007, expressed the opinion that the incident of 12 January 2001 had involved damage to the rotator cuff, as a result of which the plaintiff had developed stiffness of the shoulder and ongoing severe impairment and disability. He described the plaintiff as presenting with an injury which incapacitated him indefinitely for his pre-injury work, stating that the plaintiff had effectively lost the use of his left arm for industrial purposes. He commented:
“He is not fit for any suitable employment on the open labour market that he could perform. … He worked for the company for thirty years. He is now fifty seven years of age which is a large barrier. He also has quite serious language difficulties. Accordingly there is no suitable employment for him.”
. . .
“He would be capable of only part-time suitable employment. He would be able to work only three hours a day, four days a week. This limit would be required for the foreseeable future. He would be able to work only with his right arm. He has no effective use of his left arm and hand.”
31 Mr Kevin King, orthopaedic surgeon, examined the plaintiff on 13 November 2007. He opined that the incident of 12 January 2001 had caused an injury to the rotator cuff of the left shoulder, resulting in a chronic, severe rotator cuff lesion. He described the condition of the plaintiff’s left shoulder as representing:
“Quite a major long-term impairment of function in a man whose job always involved the constant repetitive quite heavy use of both arms in the course of unskilled work.”[14]
[14] PCB 135
32 He expressed the opinion that the plaintiff had no current capacity for work and that his condition had stabilised at its present level.
33 Mr Charles Castle, specialist in occupational medicine, examined the plaintiff on 8 July 2008. He expressed an opinion in similar terms to that expressed by Mr King, namely that, as a result of the incident on 12 January 2001, the plaintiff suffered a left rotator cuff syndrome which had subsequently resulted in the development of adhesive capsulitis. He opined that the plaintiff had no current work capacity and that the plaintiff’s condition was essentially stable.
34 In a report dated 26 March 2009, Mr Kenneth Myers, consultant general surgeon, expressed the opinion that the plaintiff was suffering from inflammatory changes in the rotator cuff structures and capsule of his left shoulder, and opined:
“Diabetes certainly predisposes to degenerative disease within the shoulder capsule and rotator cuff structures. However, I believe that it is his physical activities at work on top of the diabetes that has precipitated the problem and the likelihood is that he would not have disability at the present time due to diabetes alone if it had not been for those past work activities.”[15]
[15] PCB 181
He further commented that it was his opinion that the plaintiff’s disability would continue indefinitely.
35 In a report dated 6 May 2009, Dr Neil Cohen, the plaintiff’s treating endocrinologist, commented that he did not see any relationship between the plaintiff’s sore shoulder and his current diabetes condition.
36 In a report dated 26 February 2009, Mr Michael Polke, orthopaedic surgeon, opined that the plaintiff suffered from adhesive capsulitis and that his prognosis was not good.
37 Dr Peter Stevenson, consultant physician, expressed a similar opinion to that of Mr Polke in reports dated 18 July 2008 and 12 August 2009 [16]
[16] Whilst Mr Polke and Dr Stevenson took issue with the causation of this condition, they did not suggest that the plaintiff was not suffering a debilitating permanent organic problem in his left shoulder.
38 It can be seen that there is a general consensus that the plaintiff suffers from an organic condition of considerable severity in his left shoulder and that the plaintiff’s condition has now stabilized.
Findings as to the Nature and Extent of the Plaintiff’s Disability in his Left
Shoulder39 The defendants take issue as to:
•
whether the plaintiff suffers from genuine organic pathology in his left shoulder and if so the extent of that pathology;
•
whether the plaintiff’s presentation is substantially caused by emotional factors or the presence of a chronic pain syndrome.
40 Whilst both Mr Stockman and Mr Weaver expressed the opinion that the plaintiff presented with evidence of genuine but limited organic pathology and that he was probably suffering from a chronic pain syndrome, the general consensus of the evidence is that the plaintiff is suffering from an organic condition of adhesive capsulitis which presents in the form of a frozen left shoulder.
41 In an application of this nature when differences of opinion arise between medical practitioners as to the extent of organic pathology, the process of making findings on the balance of probabilities is not facilitated by the fact that I am required to make findings on the basis of tendered medical reports, and without having the opportunity of hearing the witnesses justify the opinions they have expressed when those opinions are tested by cross-examination.
42 I have however had the opportunity of observing the plaintiff who impressed me as a truthful and accurate witness.[17] I consider the plaintiff’s work record with the first defendant to be outstanding. He worked for some twenty eight years in an occupation which was repetitive and monotonous in that it required him to supervise the passage of thousands of bottles along a production line and to ensure that there were not unnecessary blockages in that process. Following the injury to his shoulder he continued to perform his normal duties notwithstanding the fact that he was certified by the first defendant as being fit only for restricted duties. I consider this be an indication of the plaintiff’s work ethic and stoicism.[18] Given the plaintiff’s presentation in the witness box, the corroboration of his evidence by his co- worker and his attitude in continuing his duties in the presence of symptoms in his shoulder:
[17] Although the plaintiff’s evidence was subjected to a rigorous challenge, for the reasons I have earlier given, I have found that his evidence was supported generally by other independent evidence.
[18] Insofar as the defendants contend that any failure by the plaintiff to seek regular treatment for his shoulder suggests that the symptoms the plaintiff was experiencing were not significant, I am satisfied that the reason for this lies most probably in the plaintiff’s stoicism and not the minimal nature of his symptoms
• I am well satisfied as to the plaintiff’s credit; and •
I accept the plaintiff’s evidence that he genuinely suffers from the pain and restriction of movement which he has described as being present in his left shoulder.
43 Having made this finding, I am satisfied that I should prefer and accept the opinions of the medical practitioners who have expressed the opinion that the plaintiff suffers from an organic condition which is responsible for his presentation with a frozen shoulder. The fact that those medical practitioners number well in the majority of the practitioners who have expressed opinions in this matter further reinforces my opinion in this regard.[19]
[19] Only Mr Weaver, Dr Stockman and Mr Battlay have questioned the validity of the plaintiff’s presentation on an organic basis, whereas Mr Troy, Mr Brearley, Mr King, Dr Castle, Mr Myers, Mr Polk and Dr Stevenson all express opinions that the plaintiff suffers from organic pathology which has caused a permanent and severe restriction in the function of the plaintiff’s left shoulder.
The Causation of the Plaintiff’s Left Shoulder Pathology
44 I have previously commented that I accept that the plaintiff suffered an injury to his left shoulder in the course of his employment with the first defendant. A number of medical practitioners have called into question the continued relevance of that injury to the plaintiff’s present left shoulder disability.
(i) Mr Michael Polke
•
expressed the opinion that the relationship between the plaintiff’s employment and his condition was vague;
•
commented that the plaintiff appeared to have sustained a trivial injury to his left shoulder;
•
opined that the plaintiff was able to continue working for eighteen months before he was retrenched and the fact that the plaintiff’s condition has worsened over the years suggests that other factors such as the plaintiff’s diabetes and possibly his ischemic heart disease are playing a part in his presentation.
I do not find the opinion of Mr Polke persuasive. I interpret his opinion as being substantially influenced by his belief that the initial injury suffered by the plaintiff to his left shoulder did not interfere with his ability to work up until the time of his retrenchment some eighteen months later, and that this was a factor in Mr Polke describing the injury as being a trivial one.[20] Further, neither Mr King, Mr Brearley, Dr Castle nor Mr Myers suggested that the progression of the plaintiff’s symptoms in any way militated against the plaintiff’s work injury being a substantial contributing factor in his current presentation and I do not find Mr Polke’s opinion in this regard to be convincing when compared to these opinions.
(ii) Dr Stevenson expressed the opinion the plaintiff’s adhesive capsulitis was an idiopathic condition arising by reason of his diabetes and not his employment.[21]
I do not accept Dr Stevenson’s opinion that the cause of the plaintiff’s adhesive capsulitis is an idiopathic condition. Dr Stevenson is alone in expressing this opinion The position adopted by him, namely that adhesive capsulitis will only arise secondary to trauma if there is the presence of a substantial objective injury to the shoulder, for example a torn rotator cuff requiring surgery, appears to me to be an extreme position which is generally inconsistent with the other medical opinions relied upon by the parties and specifically inconsistent with the opinions expressed by Mr King, Mr Brearley, Dr Castle and Mr Myers
[20] Whilst Mr Polke commented that the plaintiff’s diabetes may be playing a part in the his presentation, I do not interpret that comment as being inconsistent with the opinion expressed by Mr Myers that the effect of the plaintiff’s diabetes had been to predispose to degenerative disease developing within the shoulder capsule
[21] DCB 156J
45 When contrasting the opinion expressed by Dr Stevenson with that of Mr Myers who opined:
“Diabetes certainly predisposes to degenerative disease within the shoulder capsule and rotator cuff structures. However, I believe that it is his physical activities at work on top of the diabetes that has precipitated the problem and the likelihood is that he would not have had the disability of the present time due to diabetes alone if it had not been for those past work activities.”
I consider this statement by Mr Myers, as the to the relevance of the plaintiff’s diabetes, to be a much more balanced and persuasive opinion than that expressed by Dr Stevenson, and I prefer the opinion expressed by Mr Myers and those of Mr King, Dr Castle and Mr Brearley to that of Dr Stevenson upon the issue of causation.
Conclusion
46 I am satisfied that the evidence establishes:
(i)
that the plaintiff suffers from an organic condition in his left shoulder which was caused in the course of his employment with the first defendant by the incident of 12 January 2001;
(ii)
that the effect of the injury to the plaintiff’s shoulder is such as to permanently restrict the function of the shoulder to the extent that the plaintiff has virtually no industrial capacity in his left shoulder and arm;
(iii)
that but for the impairment caused by his injury, the plaintiff would have continued in his employment with the first defendant notwithstanding the alteration in the first defendant’s system of work which was introduced in September 2002;
(iv)
that having regard to his age, education, work history and work experience, the effect of the impairment of function in the plaintiff’s shoulder is to render him unemployable for all intents and purposes and that the plaintiff has no prospect given his age, work history, education and impairment, of enhancing his employment prospects by retraining or by rehabilitation.[22]
[22] In making this finding, I accept and rely upon the opinion of Mr Radley (PCB 141-166) together with the medical opinions as to the plaintiff’s physical incapacity as expressed by Mr King, Mr Brearley, Mr Myers, Dr Castle and Dr Stevenson.
47 In the circumstances, I am satisfied that the loss of earning capacity consequences of the injury suffered by the plaintiff on 12 January 2001 are such that they satisfy the criteria established by the Act in that when judged by comparison with other cases in the range of possible impairments they may fairly be described as being more than significant or marked and as being at least very considerable.
48 Having arrived at this finding, I am satisfied that the plaintiff is entitled to an order authorising him to commence proceedings seeking damages for the pain and suffering and loss of earning capacity consequences arising by reason of the injury suffered by him in the course of his employment with the first defendant on 12 January 2001.
49 I will hear counsel as to the precise form of the orders sought and as to costs.
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