Berton v Piave Premix Concrete Pty Ltd; Berton v Maymore Pty Ltd
[2020] VCC 580
•12 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03908
| MICHAEL ANTHONY BERTON | Plaintiff |
| v | |
| PIAVE PREMIS CONCRETE PTY LTD | Defendant |
-and-
Case No. CI-19-03014
| MICHAEL ANTHONY BERTON | Plaintiff |
| v | |
| MAYMORE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 January and 21 February 2020 | |
DATE OF JUDGMENT: | 12 May 2020 | |
CASE MAY BE CITED AS: | Berton v Piave Premix Concrete Pty Ltd; Berton v Maymore Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 580 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder – causation – pain and suffering - left shoulder – aggravation – disentanglement – pain and suffering – loss of earning capacity – “without injury” earnings
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; Dordev v Cowan & Ors. [2006] VSCA 254; Fox v Percy (2003) 214 CLR 118; Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215; Jeffery v Hazeldene’s Chicken Farm Pty Ltd [2015] VCC 267; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Acir v Frosster Pty Ltd [2009] VSC 454; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Cuturic v Spotless Facility Services Pty Ltd [2018] VCC 889
Judgment: Case No CI-17-03908: Application dismissed.
Case No. CI-19-03014: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Ms S A Lean | Ryan Carlisle Thomas |
| For Piave | Mr P R Trigar | IDP Lawyers |
| For Maymore | Mr G A Worth | Minter Ellison |
HER HONOUR:
1 By Originating Motion CI-17-03908, leave was sought to bring proceedings for pain and suffering damages pursuant to the Accident Compensation Act 2015 (“the ACA”) for a right shoulder injury suffered by the plaintiff in the course of his employment with Piave Premix Concrete Pty Ltd (“Piave”) from May 2011 to November 2013 (“the first period of employment”).
2 By Originating Motion CI-19-03014, leave was sought to bring proceedings for pain and suffering and loss of earning capacity damages pursuant to the Workplace Injury and Rehabilitation Compensation Act 2013 (“the WIRCA”) for a left shoulder injury suffered by the plaintiff in the course of his employment with Maymore Pty Ltd (“Maymore”) from March 2015 to October 2016 (“the second period of employment”).
3 The plaintiff brings these applications pursuant to clause (a) of the definition of “serious injury”. The body function in the Piave application is the right shoulder. In the Maymore application, it is the left shoulder.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 Under the Acts, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments … fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.[1]
[1]ACA, s134AB(38)(c); WIRCA, s352(2)(c)
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, the Acts impose specific burdens in relation to a claim for loss of earning capacity.[2]
[2]ACA, s(19) and s(38)(e); WIRCA, s325(2)(e)(i)(ii)
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 Where there is a claim for loss of earning capacity application, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in the WIRCA, s325(2)(f).
10 Questions of rehabilitation and retraining must be considered in determining whether the 40 per cent loss has been established.[3]
[3]WIRCA, s325(2)(g)
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[5] in reaching my conclusions.
[4](2005) 14 VR 622
[5][2012] VSCA 60; 34 VR 309
12 The plaintiff swore two affidavits in relation to both applications. He was cross-examined. He also relied on an affidavit swore by his wife, Anna, on 16 January 2020 in the Maymore proceeding. In addition, the parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Summary of issues
13 It was submitted the plaintiff did not suffer a right shoulder injury while employed at Piave, any shoulder injury having happened at home. Further, there was no link between any shoulder complaint and the plaintiff’s earlier carpal tunnel problem.[6] The seriousness of any right shoulder impairment was also in dispute, given the success of surgery.[7]
[6]Transcript (“T”) 25
[7]T4
14 In general terms, counsel for Maymore indicated the plaintiff’s claim for economic loss should not succeed as he had no capacity for work without his left shoulder injury and that he was simply incapacitated by reason of other conditions.[8] Further, he was required to satisfy the narrative test even if there was a 40 per cent loss.[9] There were also “serious” credit issues.[10]
The Plaintiff’s evidence – Piave application
[8]T4
[9]T5
[10]T7
15 The plaintiff is presently aged fifty-six, having been born in May 1963. Having completed Year 12, he then worked for family and others in market gardening, carrying out labouring, and during various periods, drove trucks as part of his work.
16 The plaintiff commenced employment with Piave on 23 May 2011 at its Port Melbourne depot as a truck driver, driving concrete delivery trucks.[11]
[11]T11
17 One of the plaintiff’s responsibilities at the depot was to work on the conveyor which fed the batching plant. It was heavy and awkward work in a confined space and put considerable strain on his arms and shoulders because of the awkward and difficult manner in which he had to shift the sanded aggregate. He also had to wash the truck at the end of the day, which was a difficult and awkward task. There was also other cleaning work required at above shoulder height (“the duties”).[12]
[12]Further described in the “Statement of Michael Berton’s Work Duties”
18 The plaintiff developed problems with his wrists in 2013 as a result of his work, particularly on the conveyor and cleaning the trucks at the end of the day. He had surgery on his right wrist in August 2013 and on his left wrist in September that year (“the wrist operations”).
19 The plaintiff agreed that, on 7 May 2011, before he commenced work with Piave, he complained of hand numbness and a “wry” neck to his general practitioner, Dr Armitage. It cleared up after a week and he was cleared fit to go back to work.[13] She gave him a certificate for unrestricted work which he commenced at Piave on 23 May 2011.
[13]T12
20 The plaintiff had an ultrasound and a nerve conduction study on 17 May 2011. He was referred to Mr Hayes, surgeon, in August 2011.[14] The symptoms improved at that stage, “like it went away”.[15] He saw Mr Hayes again in January 2012. The plaintiff did have problems with his wrist, “but they settled”.[16]
[14]T9
[15]T13
[16]T14
21 The plaintiff signed a Claim for Compensation on 25 February 2013, in which he set out the date of wrist injury, 23 February 2013, when he had suffered a sprain in his right wrist “shovelling seems to make the carpal tunnel symptoms worse … [d]oing shovelling of gravel for a few hours. The sprain got worse at night making my hand numb and full of pins and needles.”
22 The plaintiff put 23 February 2013 as the date of injury on the Claim Form, because that was the date he was in the tunnel with the conveyor belt and sprained his wrist.[17] He did not answer the question in the Claim Form “Have you previously had another injury/condition or personal injury claim that relates to this physical injury condition?”
[17]T27
23 The plaintiff explained he did not tell any doctors about any problems with his wrists before working with Piave, because Dr Armitage cleared him and the condition resolved.[18] He denied that he was disguising the fact of an earlier injury. He just went to work “to do the right thing”.[19]
[18]T17
[19]T18
24 The plaintiff maintained that it was correct when he said on his Piave job application that he did not suffer from any disability or impairment which would affect his work performance. He did write “prior neck”.[20]
[20]T19
25 The plaintiff gave the actual certificate to his new employer, Piave, as Dr Armitage’s note confirmed.[21] Piave hired him despite knowing of the wry neck and carpal tunnel signs.[22]
[21]T21
[22]T22
26 In his first ‘Piave’ affidavit, the plaintiff deposed he had seen Dr Dhaliwal in 2012 and had physiotherapy from Darren Rose for his arms. He was referred to Mr Magesh, and had further investigations, including MRI scans, ultrasounds and EMGs, performed by Dr David Freilich. Carpal tunnel was diagnosed.
27 After right wrist surgery in August 2013, the plaintiff’s right shoulder just popped out when he went to stand up from a table when he went to put some pressure on his bandaged right arm. In the witness box, he demonstrated the manner in which he fell, putting pressure on his bandaged right wrist (“the table incident”).
28 On 18 December 2013, the plaintiff submitted a Claim for Compensation, describing a right shoulder injury from the table incident. In that form he noted that he “was made redundant doing light duties”.
29 The plaintiff first saw Mr Chehata in November 2013. On 3 January 2014, the plaintiff had an ultrasound-guided injection into his right shoulder.
30 The plaintiff first saw Mr Ek on 1 April 2014. He operated on the plaintiff’s right shoulder on 4 December 2014 (“the right shoulder surgery”).
31 The plaintiff disagreed that he had a very good result from that shoulder, “not exactly”. He “made it good” because he wanted to get back to work; he did not want to be home. He was being positive in just dealing with it; he took steroids. His goal was just to get working again, “like a footy player, sometimes they go back when they are not 100 per cent”.[23]
[23]T31
32 As the plaintiff deposed, there had been some improvement in his right arm following the right shoulder surgery, but not fully improved, just a little bit, and he still had symptoms of pain, he thought, of 60 per cent.[24]
[24]T33
33 The plaintiff agreed, post right shoulder surgery, he had had very, very considerable improvement, but with work it deteriorated.[25]
[25]T34
34 The plaintiff agreed when he saw Mr Ek in January 2015, he was much better, when asked if he agreed he was doing extremely well, as Mr Ek reported. He was doing so compared to what he was. He told Mr Ek that the pain from his shoulder had almost completely disappeared at that time. He had a bit of movement but he could not remember full movement.[26]
[26]T34
35 The plaintiff agreed when examined by Mr Ek in November 2016, he told him he had no pain in his right shoulder and a full range of movement, excellent strength and no signs of impingement.[27]
[27]T35
36 When seen in February 2017, the plaintiff agreed he told Mr Ek he had shoulder pain, improved with activity modification at his work while at Maymore.[28] He could not remember telling him that he had pain in the back of his arm up to his neck and that Mr Ek told him that it was a sort of muscle strain. He could not remember being told to start seeing a physiotherapist.[29]
[28]T35
[29]T34
37 By November 2017, the plaintiff was having very bad pain on the right side of his shoulder and neck, headaches in driving the truck, and he just put up with a lot of pain and took Panadol as he was not one to complain. He had worked hard all his life on the farm and he had always tried to be positive, but he put up with a lot of right-sided pain.
38 When he last saw Mr Ek “it was still restrictive – the arms,” he had a frozen shoulder at the end of 2017, but he put up with it.[30]
[30]T36
39 In his first Piave affidavit, sworn on 27 April 2017, the plaintiff focused totally on his right shoulder complaints.
40 The plaintiff went back to work driving trucks in March 2015 with Maymore (Outwest Concrete) as part of a disability support program. He told them, and they were aware he could not do any shovelling because of his right shoulder.[31]
[31]T31
41 The plaintiff worked at Maymore until October 2016. He found the work too hard, particularly on his right shoulder. He denied this job was the same as his job at Piave. At Maymore, there was no shovelling, but still heavy work involving lifting up the chutes of the concrete truck and cleaning the truck. It was a lot of repetitive work.[32]
[32]T34
42 In November 2016, the plaintiff was able to get casual work with Terra Transport (“Terra”), working 20 to 25 hours a week driving a tip truck with a trailer; however, that truck had a worn-out tailgate and required force to open. The plaintiff could not do this task with his shoulder problems, so he ceased that job in February 2017.
43 As at April 2017, when he swore his first Piave affidavit, the plaintiff was seeing Dr Manjil at Station Street Medical Centre about monthly.
44 The plaintiff’s right shoulder then remained painful and he had lost considerable strength in it. By the end of the day, it was more painful and it woke him at night, particularly if he rolled onto it.
45 Prior to his Piave injuries, the plaintiff regularly rode a bike, up to 10 kilometres, but stopped because of the pressure riding put on his shoulder. Gardening, which he previously enjoyed, was then restricted, and he could not do any heavy gardening, certainly nothing requiring him to work away from his body or above shoulder height. He had previously enjoyed swimming at the beach, but then was not able to swim.
46 The plaintiff could not lift more than 5 kilograms with his right arm, and anything that required him to use strength in the right shoulder was difficult. He used a hammer when he worked for Piave to break concrete off the bowl of the concrete truck. He now could not do that sort of shovelling work he did at Piave’s depot. At that stage, he just had to be careful all the time with his arm, or the pain would increase.
47 The plaintiff swore a second Piave affidavit on 8 January this year. His right shoulder and arm continue to be painful all the time and is still very weak.
48 The plaintiff sees Dr Chan monthly, who prescribes medication, which includes Tramadol, which he takes two to three times a week, and Panadol Osteo, which he takes four to five times.
49 The plaintiff had seen Dr Ong for pain relief in 2019 about monthly, but that treatment had now stopped. The plaintiff takes this medication because of pain in both shoulders. He continues to have medication for blood pressure, diabetes, cholesterol and asthma. These conditions are under control and he has been taking medication for a long time. He had also had some kidney difficulties and attended the Royal Melbourne Hospital, but was not having any treatment for that condition.
50 The plaintiff continues to be restricted in the use of his right arm and, in particular, the shoulder. He does not believe he now could lift 5 kilograms with his right shoulder and certainly he has not been able to get back to bike riding, any gardening activities, swimming, or any activity that requires significant strength and use of the shoulder. Driving is restricted to locally, perhaps 20 to 30 minutes. His right shoulder has not really changed now for a number of years. It is probably now more painful at night than it has been in the past. He just lives with his right shoulder restrictions and tries to avoid anything that puts unnecessary strain on it.
51 When the plaintiff goes to the doctor, they are treating both shoulders, because they are both painful and weak. He gets headaches regularly but cannot say whether it is one shoulder or the other, and if he uses his arms, the pain will spread into his neck and then the headaches start. He relates the neck pain and headaches to the use of both arms, rather than one in particular. He is, however, left hand dominant and tends to use that arm more than the right.
52 The plaintiff confirmed he had not been able to go back to riding a bike. He then said he used to ride a bit before work when he was at Maymore, but stopped after the left shoulder operation. Prior to that, he was able to ride a bike and he still walked. He had stopped swimming completely because of the shoulder pain. While the Panel noted that he could no longer swim because of neck pain, the plaintiff explained his neck and his shoulder was all the same thing. He “was not very good at being verbal”.[33]
[33]T39
The Plaintiff’s evidence – Maymore application
53 In his first Maymore affidavit, sworn in November 2018, the plaintiff described his Piave duties, difficulties with his wrists, and problems with his right shoulder with surgery in December 2014. He was off work for various periods as a result of those injuries, but improved, particularly following the wrist operations and shoulder surgery. He last worked for Piave in late 2013.
54 After he improved, particularly following the right shoulder surgery, the plaintiff found work with Maymore in March 2015 driving concrete delivery trucks. That, again, was heavy work, but he was able to continue with it until stopping in October 2016. Partly because of the problems and weakness in his right shoulder, the plaintiff was using his left arm a lot more, being left hand dominant.
55 The Maymore work was heavy and, in particular, the plaintiff had to wash trucks at the end of the day, requiring vigorous use of his arms and, in his case, his left shoulder and arm. On occasions, he also had to rake concrete out of the chute on site, a task which required considerable strength, using his left arm. While working at Maymore, his left arm became increasingly painful, particularly when doing the heavier aspects of his duties.
56 The plaintiff’s injury Claim Form dated 7 February 2017 detailed a left shoulder injury during repetitive work cleaning concrete mixer on 15 May 2016.
57 As a result of his left shoulder problems, the plaintiff attended his doctor and had left shoulder surgery in October 2017 performed by Mr Ek. The plaintiff had physiotherapy and a hydrodilatation in February 2018, but his left shoulder was not improving.
58 The plaintiff’ had been attending at the Station Street Medical Clinic in Werribee and saw whoever was available from time to time. He had also been back to Mr Joubert, because of further difficulties with his wrists, but no treatment was suggested.
59 After the plaintiff left Maymore, he worked with Terra, from about October 2016 to January 2017, driving tip trucks. This was only driving work, but even in that short time, he was not able to keep working because of the shoulder problems. He was not able to keep working at Terra because of problems concerning both shoulders, not just his right.[34] He then seemed to agree that he stopped work and could not keep going at Terra because of his right shoulder.[35]
[34]T49
[35]T51
60 The plaintiff tried to go back to work with Melbourne Container Transport in March 2018 driving a semitrailer but, again, could not continue because of “my shoulder problems”. Otherwise he had been unemployed.
61 As of November 2018, the plaintiff was seeing Dr Chan, or whoever was available at Werribee, on a monthly basis. He had seen Mr Ek once or twice in 2018, following the hydrodilatation. He had had his wrists tested for carpal tunnel, but no treatment was suggested. He took medication for a cardiac condition and also for asthma. He also took Panadol regularly because of the pain in his shoulders. He had a weekly massage and did exercises every day for ten minutes to try and keep his shoulders flexible.
62 As at November 2018, both shoulders remained painful. The plaintiff could not reach away from his body or above his head with either shoulder or he would get increasing pain. Lifting with his left arm was restricted to, at best, 10 kilograms, and certainly not repetitively.
63 Driving a car was difficult. The plaintiff could drive locally for perhaps ten to twenty minutes, but not for prolonged distances. He could not drive a truck over rough terrain because it would be too demanding on both shoulders. He got pain, particularly in the left arm as far down as the wrist. That arm was much weaker than it had been before, and he had a lot less use of it in terms of movement and strength.
64 The plaintiff woke at night because of ongoing pain in both shoulders which spread down the arms. He had difficulties before his left shoulder injury because of the problems in his right shoulder, and the injury in the left made things a lot more difficult. He could not do gardening now, because his left arm was weak and painful. Also, lifting problems with his left arm made it more difficult for him to do any activities he could previously do. He used to be able to wash his car with his left arm, even after problems with the right, but could not even do that. Handyman activities were much more restricted because of his left arm problems.
65 In 2016, the plaintiff tried to do a Certificate IV in Business Management, but did not pass or complete that course because it was too difficult for him. He had limited computer skills.
66 The plaintiff swore a second affidavit in the Maymore application on 8 January this year.
67 The plaintiff continues to see Dr Chan monthly and, until very recently, Mr Ong, for pain management monthly. That program included once attending a psychologist.
68 The plaintiff continues to take Tramal slow release two to three times a week and Panadol Osteo four to five times a week. He also continues with long-term medications for blood pressure, diabetes, cholesterol and asthma, which are under control. He once attended the Royal Melbourne Hospital for a kidney problem, but is now not having any treatment for that condition.
69 The plaintiff had a cortisone injection in his right wrist in 2018.[36]
[36]T49
70 The plaintiff was referred to IPAR for rehabilitation, who suggested he should apply for various jobs. He, in fact, applied for a range of jobs, but had not been able to obtain any work. He had sought work in the food processing industry that was suggested to him. He could not do that type of work as it involved quite heavy and significant use of his arms which would increase his pain. If the work involved any computer use, he had very limited skills in that regard, and he could not type at any speed. He did not think he could do that sort of work.
71 The plaintiff did not have the skills to do cold calling work. He earnt no money while working in that type of role for four or five weeks with Countrywide Call Centre.[37]
[37]T56
72 The plaintiff applied for a job as a data entry person at Wyndham Council, but did not believe he had the capacity to do it. He would like to work and had been told he should be looking for work, and he does so.
73 The plaintiff’s real experience is working on a farm, particularly a market garden. He does not believe he now has the capacity to do any farm work. He could not drive tractors regularly, pick fruit or vegetables, or use farm equipment like a digger or a rotary hoe, because it would be too painful on his shoulders.
74 The plaintiff has certificates to drive backhoes, bobcats and bulldozers, but has not sought any work of that nature because he knows he could not do it because of the rough terrain and the forces involved in operating these vehicles.
75 At home, the plaintiff has not been able to look after the garden or do any heavier gardening work like digging or pruning. The best he can do is water the garden. He cannot go swimming.
76 If the plaintiff restricted himself to using his left arm, he would increase pain in a short time. He cannot think of any work that he can do that does not involve using that arm. Both shoulders are painful and, on occasion, the pain spreads up into his neck and he gets headaches at least twice a week. He does not wash his car because of the problems in his shoulders, or do handyman activities, which he would otherwise have been able to do, and had done in the past before his problems with his shoulders. If he attempted those activities with just his left arm, he would not be able to complete them and would suffer more pain.
77 The plaintiff has difficulty with sleep and wakes a lot because of pain in both shoulders. If he has done a bit too much during the day, he does not get any sleep at all and has to take extra medication. The pain seems to be worse at night, but it is constant.
78 The plaintiff does not believe he has the capacity for any employment because of the restriction in his arms, but particularly because of the problems in his left dominant arm. He does not believe he has improved over the last year. In fact, he thinks he has got worse because the pain is more severe, particularly on bad days, which occur once or twice a week.
79 In cross-examination, the plaintiff confirmed his first Piave affidavit, sworn in November 2017 made no reference whatsoever to his left shoulder.[38] While he described “shoulder” singular, he meant “shoulders”. He did not mention his left shoulder in the affidavit “because maybe it was relating to the Piave court case”.[39]
[38]T41
[39]T42
80 The plaintiff agreed he made no mention of any neck problems in his first Piave affidavit, “but it was connected” because his doctor had told him. He also agreed he had made no mention of his lower back, right knee, left shoulder or psychiatric condition, in that affidavit.[40] He did not think, when he swore that affidavit, that it was important for the Court to know about his other conditions. He did not want to get them mixed up.[41]
[40]T44
[41]T46
81 The plaintiff did not know if it was his right or left shoulder, but his headaches were all related to the shoulder. He thought it was the right shoulder. He agreed he had headaches and had pain spreading in his neck. He gets the general headache on the right side more.[42] The headaches are mainly on the right side, as is the neck pain now.[43]
[42]T47
[43]T48
82 The plaintiff agreed that he needed to convey to the Court that his medication is only for his shoulders. He also took it for his neck, but he implicated his neck in his shoulder problems.[44] The neck was part of the symptoms for him.[45] He agreed that the tablets help a bit with his wrist.[46]
[44]T52
[45]T54
[46]T53
83 The plaintiff agreed there was no mention of unrelated health conditions in his various affidavits. It was correct he intended to convey to the Court his incapacity for work, related totally to his shoulders, “and that was the fact”.[47] He agreed handyman activities were lost to him, because of his right shoulder.[48]
[47]T54
[48]T55
84 The plaintiff disagreed that he had serious ongoing neck and back injuries that impaired his work capacity, but agreed that he had had back pain for over twenty years; however, he still did not have the problem today. He did have a back claim with Piave when he did some lifting.[49]
[49]T60
85 The plaintiff agreed he has serious ongoing wrist pain that impaired his capacity to work, but denied he has problems with serious anxiety and depression that also impact on his work capacity. He agreed, during 2018 and 2019, he had serious anxiety and depression and that had impaired his capacity to work since at least 2015.[50]
[50]T61
86 The plaintiff confirmed the “wry” neck injury working at Damorange Transport in 2010-2011. He “knew” his shoulder was connected to the neck. He could not say whether he had frank ongoing neck pain. He agreed he had had ongoing neck pain since 2011 and had consulted doctors at Werribee Medical Clinic in that regard on and off since 2011. His “wry” neck got better and then he hit his head at Piave.[51]He had a neck CT scan in 2013 after this incident when he aggravated his neck.[52]
[51]T63
[52]T62
87 When Mr Chehata reported in December 2013 that the plaintiff told him he had a sore neck, and also down the right side of his neck, which was mildly stiff and painful, the plaintiff explained the neck pain did subside, but when he was doing shovelling at the conveyor it aggravated his neck, so he thought the neck and shoulder were related to the pain in his arms “… it’s all linked together with the shoulder because I know the neck and shoulder are related. So what happened, the shovelling aggravated my shoulder which aggravated my neck.”[53]
[53]T64
88 The plaintiff agreed neck pain remained severe through 2018 into 2019 and it is still now. However, he would “personally relate it to the shoulder and the effects of the shoulder operations and everything”. He agreed he had had a neck x-ray in March 2019.[54]
[54]T65
89 While Dr Ong reported in April 2019 that the plaintiff complained of neck pain radiating from the neck down his arm, the plaintiff “put it like from the shoulder affecting the neck and his arms”. He told Dr Ong he had been prescribed Tramadol, at least in part, because of neck pain.[55]
[55]T65
90 When asked whether he complained to Dr Baynes in August 2019 of increasing neck pain when driving,[56] the plaintiff explained “shoulder and neck pain for me are all the same thing and are increased by driving”.[57] He agreed he told that doctor his neck pain tended to be more on the right side, with right-sided headaches.[58]
[56]T64
[57]T53
[58]T66
91 The plaintiff told vocational assessor, Katrine Green, in early 2020 that he had intermittent, but frequent, referred pain from the right shoulder into the right side of his neck, which was easily aggravated. He told her he had right arm weakness. He had left shoulder pain most of the time. He told her he continued to experience bilateral wrist pain and that he had headaches on the right side and back of his head about three days a week. He told her he had issues with his lower back, which caused problems bending, and with prolonged sitting and standing. He told her he had a stiff neck and flexion. He avoided stairs because of his knee problems, and had anxiety for a long time, back to childhood.[59]
[59]T67
92 The plaintiff agreed his right shoulder caused problems while working at Maymore and that it, alone, remained a serious problem for him, so much that his general practitioner said that he could not work because of both shoulders. He then denied his main problem is his right shoulder.[60]
[60]T67
93 The plaintiff agreed he told Dr Ong his main problem was his right shoulder “in terms of … [his] neck issues”.[61] Maybe Dr Ong misunderstood him, but the way he mentioned it, the plaintiff had difficulty in both shoulders.[62] He could not remember telling Dr Ong that his right cervical pain was separate from the shoulder pain. He felt like it was all linked because of “the weakness of the shoulder it’s supported on the neck,” so he thought it was all linked.[63]
[61]T67
[62]T68
[63]T70
94 The plaintiff agreed he told Dr Ong of ongoing central lower back pain; swelling in both wrists; electric shock pain through both upper limbs; forearm pain, aggravated by wrist extension; neck pain, aggravated by movements, particularly rotation; walking was limited because of back pain, as was sitting and static standing; difficulty bending, and sleep was interrupted by pain in his hand. He agreed his wrists were a serious problem while working at Maymore, so much that he needed an x-ray in July 2015.[64] He agreed he had pain in his wrists during the remainder of 2015 and an ultrasound-guided injection in his right wrist in September 2015.
[64]T70
95 After work with Maymore, the plaintiff’s wrist pain remained a serious problem. He had an ultrasound in April 2017 and an ultrasound-guided injection in his right wrist in June 2017, with nerve conduction studies in May and June 2017.[65]
[65]T71
96 The plaintiff agreed his long-term wrist pain affected his work and that he was referred to Mr Joubert in relation thereto in 2017, because his wrists were so bad. He was taking Gabapentin for his wrist and hand pain.[66]
[66]T71
97 The plaintiff then said that medication was for his shoulders “and combined effect with his arms”. He agreed that he had severe pain in both wrists, as Dr Chan noted on 25 February 2018.[67] At that stage, Panadeine Forte was prescribed, at least in part, for his wrist pain, and during 2018 he was receiving physiotherapy for both wrists from Darren Rose.[68]
[67]T72
[68]T73
98 The plaintiff received weekly payments until 130 weeks, ceasing in January this year. His claim was accepted for left shoulder surgery and hydrodilatation.
99 The plaintiff agreed he had told Dr Baynes in August 2019 that the major problem these days seems to be “more pain into both forearms, along with some numbness over the forearms … as a result from the shoulder injuries”.[69] He disagreed that his pain and numbness in the forearms was his major problem. He did tell Dr Baynes, since last seen, symptoms into both arms had increased.[70]
[69]T74
[70]T75
100 The plaintiff agreed he had had significant anxiety since childhood.[71] He denied he stopped the telemarketing job because of anxiety and depression. It is not correct he ceased at Maymore because of those issues.[72]
[71]T75
[72]T77
101 The plaintiff agreed he made a claim in September 2016 for psychiatric injury arising out of his work with Maymore.[73] It was rejected on the basis of reasonable management action.[74]
[73]9 September 2016 - anxiety, stress bullying
[74]T78
102 By letter dated 20 October 2016, Allianz advised the plaintiff that it rejected his claim for medical and like expenses in relation to a psychological injury of 5 September 2016. The rejection was based on the report of Dr Senadipathy.
103 The plaintiff made an impairment benefits claim on 2 January 2018 for workplace stress and bullying.
104 Allianz wrote to the plaintiff on 30 January 2018, rejecting his claim for a psychological condition with an injury date of 5 September 2016 on the basis he had not sustained any injury arising out of his work with Maymore on 5 September 2016. This decision followed an examination by Dr Senadipathy.
105 The plaintiff agreed, partly, he stopped work at Maymore in October 2016 because of stress, anxiety and depression. The other reason was because of his left shoulder and “… the right was there. … And my arms.” It was not his right shoulder really, the left one is the dominant hand.[75]
[75]T78
106 The plaintiff was given a written warning dated 5 October for an incident 3 October 2016 for yelling in an aggressive and threatening manner at a Maymore worker at the Hoppers Crossing site, where he was not an employee.
107 The plaintiff agreed he attended Dr Chan’s surgery in September 2016 complaining of workplace bullying. Dr Dhaliwal gave him a certificate for workplace stress. When the boss at Maymore found out about his shoulder claim, pressure was put on the plaintiff. He was given a hard time. They gave him a warning for no reason and treated him differently, and he was the target. He was stressed by that. He was having night sweats so he saw the psychologist, but that had all resolved quite a number of years ago and now he felt like he was going ahead with his life.[76]
[76]T81
108 The plaintiff agreed he left Maymore partly because of psychiatric injury.[77] He left, having put in a stress claim. When it was suggested he had to resign because of bullying, “it was bullying and the shoulder, mainly because of the shoulders” and then agreed mainly the right.[78]
[77]T81
[78]T82
109 The plaintiff initially agreed, when he saw his general practitioner at Werribee on 5 December 2016, his main complaint was the right shoulder and neck[79] but then could not remember saying this.[80] He denied he stopped work at Terra because of pain in his right shoulder. He left because of both shoulders; he could not do the job. He agreed it was his neck, which is part of the right shoulder, and his wrists - “it’s all – whatever – it’s all”.[81]
[79]T82
[80]T83
[81]T84
110 The plaintiff thought his wrists were all part of his shoulder injuries and he had “… like part of the central pain syndrome after the injury, so I think it’s all related to the operations I had on the shoulders.” He had been told by Dr Ong he had a central pain syndrome.[82]
[82]T84
111 The plaintiff thought “… personally the neck and the shoulders and the forearms are related to the shoulders and the wrists come into the effects [he] had on the carpal tunnel, so that combination effect, yes, so I don’t know where it starts and finishes.”[83]
[83]T84-85
112 The plaintiff denied he had little problems driving as the IPAR report described in February 2017. He was trying to be positive to get a job and talked down his driving problems.[84]
[84]T85
113 The plaintiff could not recall not mentioning his left shoulder when he saw Dr Davison in January 2017 when examined in relation to his right shoulder claim.[85] The plaintiff disagreed that he picked and chose which injury he emphasised as it suited his purpose. He also disagreed he did that in his affidavit.[86]
[85]T86
[86]T87
114 The plaintiff agreed during 2017, he had had significant treatment for psychological injury from his general practitioner and psychologist.[87] At the time, he was seeing Catherine, he discussed both his shoulder injuries and his back was bad then. He had actually done some exercise. His back seemed to be good again now. He had mainly stiffness – “So I’ve got that pretty good now.”[88]
[87]T88
[88]T89
115 The plaintiff saw Dr Chan five times in 2017 because of anxiety and stress. The plaintiff had been out of work, so Dr Chan just picked up a few issues the plaintiff had at that time. With Catherine, he had a few issues again, not working, and he just sorted things out with her.[89]
[89]T90
116 The plaintiff agreed that as at the end of last year, his anxiety and depression had been moderate to severe, as Dr Chan reported.[90]
[90]T90
117 The plaintiff saw a psychologist at Advanced Healthcare. He no longer saw that psychologist, as without the outside stressors, he was coping quite well. He had had a few issues with not working and had to re-adjust in those terms. He felt he had used their service well, he had learned treatments, like meditation, mindfulness, reading, just to keep his mind occupied and keep him busy so he would not get depressed.[91]
[91]T90
118 The plaintiff disagreed there was a very heavy focus on his psychiatric state in the pain management program. That program had finished and Dr Ong did not want to see him again.[92]
[92]T92
119 The plaintiff denied his anxiety and depression impaired his work capacity because now he is positive, trying to remain positive. He has been taught how to deal with the depression, so when he gets down, feeling sorry for himself, he picks himself up, he has coping mechanisms worked out, so he feels on top of it. He has had “like major anxiety and depression,” but feels like he has got the coping mechanism. He does not take medication for this now, having last done so a couple of years ago.[93]
[93]T93
120 The plaintiff agreed that the bullying culture at Piave aggravated his anxiety.[94] He confirmed how the telemarketing job was unsuitable for him. He stopped this job because of the lack of skills, and denied it was because of anxiety.[95]
[94]T93
[95]T94
121 The plaintiff agreed he had problems with his right knee “probably all [his] life”. He needed an x-ray in July 2012 and his knee got worse in 2017. He saw Dr Chan a number of times, and in 2018, Mr Lauding operated on his knee. Dr Chan prescribed Panadeine Forte in 2018 for his knee. It is incorrect his knee impairs his work capacity.[96]
[96]T95
122 The plaintiff agreed he had had back pain for twenty years, but it was not correct it had impaired his work capacity. He could drive a truck now with his back pain. He agreed he told Advanced Healthcare that sitting aggravated his back pain.[97]
[97]T95
123 The plaintiff had resolved his back issues. Maybe two months ago, it was very bad, he has been walking fifteen minutes every day and the exercises are very good, and he has built up his core muscles, so that really seems to have helped. While he might have had back problems, they did not stop him working as a market gardener for twenty years. He has now had proper treatment.[98]
[98]T95
124 The plaintiff agreed he had told Mr Dooley he had recently had a worsening of his lower back pain.[99]
[99]T96
125 The plaintiff could not remember telling Dr Weissman that he stopped work at Terra because of his right shoulder. As far as he knew, he had always said it was both shoulders.[100]
[100]T96
126 The plaintiff confirmed he had not downplayed the extent of his psychiatric injury when he saw Dr Weissman. He had seen a psychologist and she had given him coping mechanisms so that it actually helped him day to day.[101]
[101]T98
127 The plaintiff has been more accepting of his pain since the pain management program. He has got the shoulder conditions that are quite bad and he has accepted now he could not do the work he used to do, so that is helping him cope mentally too. It took him a long time, because he is very positive, to come to this realisation. That resolution is ongoing.[102]
[102]T99
128 The anxiety and depression are related to his shoulder injuries and it is a by-product of what is happening. The plaintiff agreed that in 2018-2019, he was so bad psychiatrically, at times he could not have gone to work.[103]
[103]T100
129 The plaintiff disagreed that if he did not have any pain at all in his left shoulder, he would not be able to work because of all the other conditions.[104]
[104]T100
The Plaintiff’s Wage Summary Financial Year
Employer
Gross Earnings
WorkCover Payments
2011 Damorange Pty Ltd
Piave
$10,925
$4,862
Nil
$15,837
2012 Piave $53,075 Nil 2013 Piave $47,201 $39,479 2014 Nil Nil $39,479 2015 Maymore $13,879 $25,650
(on the Piave claim)
2016 Maymore $39,294 $830
(on the Piave claim)
2017 Maymore
Terra Transport
$3,585
$5,437
$15,616
(on the Piave claim)
2018 Nil Nil $38,011
(on the Maymore claim)
2019 Nil Nil $29,298
(on the Maymore claim)
2020 Nil Nil $17,554
(on the Maymore claim)
Lay evidence
130 The plaintiff’s wife, Anna, swore an affidavit on 16 January 2020 in relation to the Maymore application. She and the plaintiff have been married since 1997 and have two teenage children.
131 Anna got to know the plaintiff when he was working in the family market gardening business and she was working as a farm hand. He was extremely fit and strong, and was a very happy, bubbly, easy-going person.
132 When the children were born, the plaintiff was a fantastic father, who spent as much time as he could with them, although busy at work, enjoying swimming, minigolf and bike riding with them. He always had an exceptionally good work ethic and enjoyed being productive in helping provide for the family.
133 The plaintiff had ongoing problems with his right shoulder and carpal tunnel suffered at Piave, but after some treatment, was able to get back to work and help support the family financially. These injuries continued to impact on him, but he was able to return to work.
134 The plaintiff got the job with Maymore, and was feeling better in himself; however, he then injured his left shoulder. Since that injury, he was restricted in employment and has not been able to earn an income.
135 Since the shoulder injuries at work, the plaintiff has changed significantly and is restricted by reason of injuries to both shoulders. He is no longer able to help around the house as he could in the past. He has tried to mow the lawn(s), but it increases his pain, and Ben now does it. The plaintiff has difficulty helping out with general household chores due to increased pain. He now has significant difficulty with his sleep and wakes due to the pain. He takes increased medication to try and settle the pain which, in turn, has caused problems with his bowels. This has meant he has had to take more medication to deal with that issue.
136 The plaintiff’s sleep has become so disturbed that he and his wife no longer sleep in the same bedroom. His wife’s relationship with him has suffered significantly since the injuries. The financial pressures have been very significant. Their inability to share a bedroom has impacted on their relationship and it is now like they are friends living in the same house.
137 The plaintiff gets down and upset because he is unable to work like he used to. He appreciates he is now very restricted in the types of work he may be able to do. He desperately wants to get back to work, and has been looking, but cannot find anything within his restrictions. That situation makes him feel not good enough and that he is not helping provide for the family. If he could work, he would be working.
138 They can no longer afford to go on family holidays, previously having gone to Queensland every year. The plaintiff is no longer able to swim because of his injuries. He enjoyed swimming, and it helped with his fitness, his mental health and also his asthma. As a consequence, he is now on more asthma medication.
139 The plaintiff still has a reasonable relationship with their children, but he does get aggressive when he is feeling down and depressed, and picks on them. There are more fights in the household since the plaintiff suffered his injuries. The injuries to both shoulders have had a very significant impact upon the plaintiff and the family.
The Plaintiff’s medical evidence – treaters
140 Dr Dhaliwal, general practitioner in Hoppers Crossing, last reported in November 2015.
141 Dr Dhaliwal noted that initially, the plaintiff saw another colleague at that clinic with symptoms of Bilateral Carpal Tunnel Syndrome (“the syndrome”), persisting numbness and pins and needles in both hands. Confirmatory tests were carried out, with nerve conduction studies. The plaintiff was subsequently managed surgically by Mr Nagesh, who performed right-hand nerve decompression surgery in August 2013 and left-sided surgery in September that year.
142 As a result of the wrist surgery, as of November 2015, the plaintiff had the feeling back in both hands and did not have persisting pain or pins and needles affecting his hands. Although his hand strength was not back to its original state, satisfactory progress had been made towards achieving adequate strength in both hands to allow him to return to his previous duties.
143 Dr Dhaliwal noted that the wrist injury had been complicated by the fact the plaintiff developed right shoulder pain about two weeks after the right wrist surgery, related to sitting on a table with the weight of the upper limb resting on a bent elbow, which was normally suggested after arm/forearm surgery. The plaintiff did not report any other trauma/injury to suggest that a mechanical trauma of an acute nature could be accountable for his pain and symptoms.
144 It was initially thought the right shoulder pain was a sprain. It was managed with anti-inflammatories, but failed to settle, and further investigations, including an ultrasound and MRI scan were undertaken. They showed inflammatory changes around the right shoulder joint lining and some wear and tear, possibly related to previous activities.
145 Dr Dhaliwal diagnosed right shoulder subacromial bursitis and impingement and AC joint arthropathy.
146 Dr Dhaliwal thought those injuries did not appear to be related to, or as a result of, the wrist surgery, but could possibly be related to any heavy repetitive work the plaintiff had done over a significant period of time, such as repetitive shovelling of gravel, which he said he did quite often working as a truck driver.
147 Following shoulder surgery on 4 December 2014, the plaintiff stayed off work until the end of February 2015. He made very good recovery, in the sense his symptoms of pain had improved, and he developed good strength and endurance post surgery. He obtained a letter for return to work in a full capacity on 20 February 2015 to start work as a cement truck driver again, after having a discussion with Dr Dhaliwal. Although the plaintiff had improved remarkably, Dr Dhaliwal thought he remained at risk of recurrent symptoms if he returned to similar duties.
148 The plaintiff had contemplated other work but could not find any and was under financial constraint, so the decision was made to return to work as a cement driver.
149 Dr Dhaliwal noted the plaintiff seemed to be settling well, but from June to October 2015, he presented to multiple practitioners at the clinic with complaints of recurrence of episodes of symptoms of tendinitis in his wrists and shoulder.
150 On 10 August 2015, Dr Dhaliwal again discussed with the plaintiff that his current work was quite likely having a derogatory effect on his upper limbs and he really needed to look at the possibility of alternative duties.
151 As of November 2015, right shoulder pain had responded to some degree to physiotherapy and to injection, and the plaintiff was then able to lift his arm to 90 degrees and able to have a reasonable range of movement and moderate strength in the right upper limb. However, he still remained in pain, especially on activities that caused strain on that shoulder, such as reaching overhead or back, heavy lifting and repetitive movements. He was referred to an upper limb orthopaedic surgeon for further treatment and management.
152 In November 2015, Dr Dhaliwal thought the plaintiff was able to return to work but would certainly not be fit to perform his previous duties but could return on lighter administrative duties. The problem was, though, he was not qualified to perform administrative duties and had not been successful in finding any suitable employment which placed less strain on his injured shoulder.
153 As far as Dr Dhaliwal knew, the plaintiff’s right shoulder problem was then not interfering significantly with necessary activities of daily living, but he was certainly impaired in the sense of being restricted in what work he could perform without being in pain. His prognosis for complete recovery was not favourable because of the protracted nature of his injury and the relatively early recurrence of symptoms on starting work after a seemingly full recovery.
154 The plaintiff saw physiotherapist, Darren Rose, on referral from Mr Magesh, in March 2013. When first seen, the plaintiff had right wrist symptoms. Treatment ceased in November 2013 when funding ceased.
155 Mr Rose thought the plaintiff suffered a ligament sprain of the wrist and may have worsened pre-established Carpal Tunnel Syndrome as a direct result of a workplace injury that had occurred on 26 February 2013.
156 Subsequently, the plaintiff suffered right shoulder injury - subacromial bursitis and tendinopathy of the supraspinatus and subscapularis muscles which may have occurred because of his attempts to be functional and protect his wrist.
157 The plaintiff first saw Mr Chehata, orthopaedic surgeon, on 26 November 2013, on referral from Dr Dhaliwal for right shoulder pain, and was “really with regard to Bilateral Carpal Tunnel Syndrome that had been operated on and the subsequent shoulder pain that has been managed”.
158 At that stage, it was still unclear to Mr Chehata, since the plaintiff only came for his shoulder injury, what the precipitating event was at work, and how that caused bilateral carpal tunnel.
159 Mr Chehata then thought there was no doubt the plaintiff was in a difficult situation, with the nature of his work requiring not only driving but agility and strength in securing loads. In his view, the real issue would be with the plaintiff’s tendons being tendinopathic, and the potential for the bursitis to continue, was whether or not non-operative measures would be successful. He suggested definitely trying further cortisone injections and gentle stretching.
160 Associate Professor Ek (“Mr Ek”) first saw the plaintiff on 1 April 2014 for evaluation of his right shoulder, which he injured following carpal tunnel surgery, when trying to get up out of a chair and experienced pain. At that stage, the plaintiff had had three cortisone injections, which did not provide longstanding relief.
161 Mr Ek discussed the results of the ultrasound and MRI scan with the plaintiff and diagnosed right shoulder subacromial impingement and bursitis. He recommended the next step would be arthroscopic subacromial decompression which he noted the plaintiff was keen to undertake.
162 Mr Ek thought the heavy physical nature of the plaintiff’s work as a cement truck driver for three years was likely to have contributed to the development of his right shoulder pain. Specific tasks included heavy overhead activities and other lifting, which would have placed considerable strain on the plaintiff’s upper limbs.[105]
[105]He was provided with the plaintiff’s statement of his duties
163 Mr Ek then thought it unwise for the plaintiff to recommence any of the heavy tasks that he had previously done. He considered the plaintiff was suitable for light duties with very minimal overhead activity until his pathology was treated.
164 In his September 2015 report, Mr Ek confirmed the diagnosis and provided a copy of the operation report. He thought the prognosis was excellent.
165 Dr Chan, general practitioner in Werribee, most recently reported in December 2019, having first seen the plaintiff on 25 February 2018.
166 Dr Chan noted the plaintiff injured his left shoulder on 15 May 2016. There were subsequent investigations and surgery in October 2017.
167 As of December 2019, Dr Chan thought the plaintiff was suffering from a Chronic Pain Syndrome with neurological symptoms relating to his left shoulder, and had been referred to Dr Ong for chronic pain management.
168 The plaintiff felt he deteriorated from May 2019 and felt weak in the arms from the shoulders down. Pain intensity varied between 8 out of 10 and 3 out of 10. He found he could not do the dishes or use keyboards. Any repetitive movements involving the arms, and even having physiotherapy, aggravated the pain, and he had to stop. He had pain at rest, worse at night. Sometimes he had stabbing pain in the forearms. He was now mainly on Tramal and Panadol Osteo for pain.
169 The plaintiff’s anxiety and depression had been moderate to severe. He had seen a psychologist a few weeks earlier. He had been suffering headaches a couple of times a week, which were worse after lying down. He had been trying to do reading, mindfulness meditation and walking exercises, as recommended.
170 Dr Chan agreed with Mr Chehata, that it was unlikely the plaintiff will have meaningful work capacity in the foreseeable future, given his mental and medical condition, and training.
171 In November and December 2019, Dr Chan provided Certificates of Capacity setting out the clinical diagnosis was left shoulder AC joint arthropathy, subacromial bursitis and biceps tendinopathy, and also anxiety.
172 Dr Chan noted the plaintiff was woken with left shoulder pain at night. He had only three to five hours of sleep each night. The intensity of pain varied between 3 to 8 out of 10. He was taking analgesics on alternate days only. He was still anxious and depressed as of December 2019.
173 Dr Ong, from Advance Australia, reported in April 2019, having seen the plaintiff in March 2019 for further opinion and management of his multiple body area problems and related psychological trauma problems.
174 The presenting complaint was then pain in the neck, shoulders, radicular upper limbs and secondary depressive and anxiety symptoms. Medication, at that stage, included, inter alia, Tramadol.
175 On examination, range of movement of both shoulders was stiff and limited. Range of motion of the cervical spine was stiff and restricted, with painful arc.
176 Dr Ong noted the plaintiff had complex issues surrounding his physical injuries and pain issues, and also multiple other secondary psychological and psychosocial issues.
177 After the first assessment, it became apparent the plaintiff suffered from a recurrent and chronic injury and pain-related condition, and also secondary psychological conditions. He had been diagnosed with Chronic Pain Syndrome.
178 Dr Ong recommended a pain specialised physiotherapist and psychologist, and a few other investigations to ensure the plaintiff had no other significant pathology. He noted, however, the plaintiff is a very anxious patient and apprehensive about new treatments et cetera. Consequently, the plaintiff had not been able to embark on a full pain management program pathway, which had been originally intended. The plaintiff had then decided to hold off any other pain management requirements for the time being and continue to see his current treaters.
179 The plaintiff still had physical symptoms and limitations, and some problems, and was learning to manage his condition better. He remained apprehensive psychologically and required some medication adjustments and some ongoing monitoring.
180 Dr Ong’s impression was that the plaintiff suffered from work-related injuries with bilateral shoulder pain syndrome from OA degenerative disease with inflammatory and myofascial conditions, including likely developing neuropathic components. There was a component of probable compounding chronic cervical pain syndrome from traumatic work-related injury, with OA degenerative disease, with inflammatory and myofascial conditions, including discogenic and neuropathic components. There was radiculopathy to the upper limbs, post multiple surgery pain syndrome, adhesive capsulitis, centralisation of pain syndrome, secondary depressive and anxiety disorder and adjustment disorder traits.
181 Dr Ong noted return to work was important and that job modification and/or VR may be necessary.
182 Dr Ong then thought the plaintiff’s main issues remained pain focus, mood disorder, apprehension, fear avoidance and reduced function. He would need a full proper pain management program in due course and his physical condition had not stabilised pending that program.
183 Dr Ong thought the plaintiff’s projected capacity was still to be determined accurately in due course, but likely remained limited to lifting under 7.5 kilograms, no repetitive duties, no prolonged sit or stand, avoiding push, pull, avoid reaching high or far forward or backwards, avoid repetitive bending and twisting, avoid climbing and gripping hard or prolonged.
184 Dr Ong thought the plaintiff could do light occasional manual tasks, but limited, some desk work or computer work, or typing, but breaks were required and no overuse. His maximum hours were two to three days a week at two to four hours a day at an office-based sedentary role only. He was currently unfit for pre-injury duties due to the nature of those duties and his conditions. He could do his ADL’s but got symptoms from them. He was limited with domestic housework and social and recreational activities.
185 Dr Ong thought the above limited capacities applied to both or either shoulders, taking into account the physical conditions alone, and excluding the psychological effects. He thought the plaintiff would benefit from the involvement of an occupational rehabilitation provider.
186 Dr Ong aimed to review the plaintiff again in due course.
Psychological treatment
187 The plaintiff had nine psychological sessions in 2018 funded by the insurer for management for anxiety in the context of unresolved difficulties with previous workplace, including reported workplace bullying.
188 Treating psychologist, Ms Catherine Hluchanic, noted that the plaintiff continued to present with moderate/high levels of anxiety. He was determined to get back to work, as staying at home was further exacerbating feelings of worthlessness. They had discussed the importance of returning to work in a capacity which was not labour intensive, due to the plaintiff’s back and shoulder injuries. At that stage, her clinical impressions were that it would be helpful for him to return to work, and he could, as long as he continued to work on anxiety management strategies and techniques.
Investigations and surgical procedures
·ultrasound both wrists, 14 December 2012
·nerve conduction studies, 14 March 2013, 30 May and 16 June 2017
·right carpal tunnel surgery, 19 July 2013
·left carpal tunnel surgery, 5 September 2013
·ultrasound and x-ray right shoulder, 25 September 2013
·CT scan cervical spine, 4 November 2013
·MRI scan right shoulder, 15 November 2013
·ultrasound-guided injection right shoulder, 3 January 2014
·right shoulder surgery, 4 December 2014
·x-ray both wrists, 15 July 2015
·ultrasound right wrist, 25 July 2015, 19 April 017
·ultrasound left shoulder, 12 October 2015, 6 June 2016
·ultrasound-guided injection right wrist, 22 September 2015
·ultrasound-guided injection left wrist, 26 June 2017
·ultrasound-guided left subacromial bursa injection, 27 June 2016
·ultrasound-guided injection left shoulder, 8 March 2017
·MRI scan cervical spine, 6 June 2017
·MRI scan left shoulder, 6 June 2017, 2 February 2018
·left shoulder surgery, 30 October 2017
·ultrasound right elbow, 27 July 2018
·ultrasound-guided aspiration injection right bursa, 8 August 2018
·ultrasound both shoulders, 18 March 2019.
Medico-legal evidence
189 The plaintiff was examined by the Medical Panel on 22 July 2016.
190 The Panel noted, from the joint statement, that the alleged injuries to which the medical questions relate were bilateral carpal tunnel injuries, subacromial and subdeltoid bursitis, supraspinatus tendinopathy of the right shoulder and arm, injuries to the muscles and ligaments surrounding the right shoulder and consequential psychological injuries.
191 Summarising the plaintiff’s work history and medical progress post 2013, the Panel noted that he remained symptom free with bilateral hand numbness over time, and that in around March 2015, he noted an increase in right forearm pain, following which he had an ultrasound and injection, which then helped his symptoms. The Panel did not consider this right wrist episode indicative of any recurrence of right Carpal Tunnel Syndrome.
192 The plaintiff said he did not currently experience any sensory disturbance in either hand but had some bilateral wrist stiffness and forearm discomfort associated with finger triggering. He advised he was not aware of any right shoulder symptoms until his recovery from right carpal tunnel surgery. On 3 August 2013, he experienced an elastic band snapping sensation in his right shoulder when he lent heavily on his right elbow, rising from a seated position.
193 The plaintiff advised that following the right shoulder surgery, he had reduced right shoulder pain, improved movement, and more comfort when lying on his right side. He currently continued to experience occasional right shoulder pain and it felt a bit stiff, associated with some restriction in movement and variable comfort when lying on his right side. He was able to undertake overhead movements, using his right arm as required.
194 The plaintiff told the Panel, having been made redundant in November 2013, he had a brief period of part-time work as a telemarketer and then started work with Maymore in March 2015. He was able to manage the required physical duties as a driver, not being required to undertake any yard duties.
195 The plaintiff said, more recently, he had noted left shoulder discomfort, for which he had had a steroid injection, and there was some stiffness involving his forearms. He advised he was independent in activities of daily living and able to drive without restriction. He told the Panel he participated in regular walking and cycling exercises. He was then taking Panadol or Nurofen on an as needs basis, mainly for “neck headaches”.
196 On examination, there was no wasting in the right shoulder, no significant local tenderness and a moderately restricted range of active movements, most apparent in flexion, abduction and internal rotation without crepitus.
197 On the basis of clinical history, physical examination and investigations, the Panel concluded the plaintiff was suffering from persisting right shoulder dysfunction following a rotator cuff syndrome surgically treated. It also concluded he was not suffering from any clinical recurrence of right or left carpal tunnel syndrome.
198 Having conducted a mental state examination, the Panel considered the plaintiff’s acknowledged longstanding anxiety was exacerbated during the time he worked. However, based on the psychiatric history and examination, the Panel concluded he was not suffering any psychiatric or abnormal psychological condition.
199 The Panel found the plaintiff had subclinical right shoulder tendinopathy or bursitis related to the physical nature of his employment duties prior to the right carpal tunnel surgery. That subclinical condition became symptomatic following the episode when he put weight on his arm.
200 The Panel thought any deterioration subsequent to that episode on 20 August 2013 was temporary and that the plaintiff’s ongoing right shoulder symptoms, over time, reflected the natural history of his right shoulder tendinopathy and bursitis, not the ongoing effects of that discrete incident.
201 The Panel noted that the plaintiff had returned to a different employer and did not have to undertake all pre-injury duties, which included sweeping and shovelling. If he was to return to full pre-injury duties, the Panel thought he would exacerbate or aggravate his current condition.
202 Accordingly, the Panel concluded the plaintiff had an incapacity for work from 14 November 2013 to 20 February 2015 as a result thereof, and that between 20 February 2015 and the date of the examination, this situation continued.
203 Further, the Panel concluded the right shoulder surgery was an appropriate medical service for the plaintiff’s right shoulder condition. It agreed with Mr Troy’s conclusions with regard to the resolution of the bilateral carpal tunnel syndrome; however, disagreed that the right shoulder dysfunction was not work related, that it had resolved following surgery or that the plaintiff was capable of returning to pre-injury employment.
204 Mr Chehata provided a medico-legal report in October 2019, having earlier seen the plaintiff in November 2013 for treatment of his right shoulder.
205 In terms of history, Mr Chehata noted that although the plaintiff’s right shoulder continued to remain slightly sore post surgery, his left shoulder began to deteriorate in or around 2016, when doing repetitive cleaning of his truck. He developed ongoing bilateral shoulder pain and neck symptoms and began to develop ongoing pins and needles, numbness and radiculopathy and was referred for scans.
206 Again, there was a conservative approach, but no improvement. Left shoulder surgery took place in October 2017. The plaintiff developed significant capsulitis in the post-operative period, having a hydrodilatation with minimal improvement, as well as other treatment regimes. There had been no improvement in symptoms and he was currently progressing through a pain management program.
207 Mr Chehata noted the plaintiff had had a past history of a previous bipartite patella and had had that resected. He was relatively pain free in his right knee. He had a significant past history of hernia, fatty liver, diabetes, obesity, upper tension, asthma and obstructive sleep apnoea and chronic renal failure.
208 On examination in October 2019, the plaintiff complained of ongoing shoulder pain, back symptoms and had multilevel degenerative change in the neck, with no neural compromise. Due to ongoing neuropathic symptoms, he had had numerous nerve conduction studies after the carpal tunnel surgery, all of which confirmed an adequate decompression and operative changes.
209 The plaintiff was then on a myriad of medication, including paracetamol, Panadeine Forte and Tramadol slow release. He had tried Lyrica, but ceased because of the side effects.
210 Mr Chehata noted the history of bilateral carpal tunnel syndrome, as well as development of impingement and bursitis in the right shoulder, which ultimately required surgery. The plaintiff had subsequently developed ongoing stiffness and pain, progressing to a pain management program. He had developed left shoulder pain while performing duties at work.
211 Mr Chehata thought, because of his right shoulder, the plaintiff was certainly likely to struggle to return back to any form of overhead lifting or unskilled manual labouring jobs. With his left shoulder, he was likely to remain significantly restricted in terms of forward flexion and use of his left upper limb, with ongoing pain.
212 As the result of each shoulder injury separately, Mr Chehata considered the plaintiff did not have the capacity to perform his pre-injury duties, due to the restriction in range of movement and ongoing pain. In terms of the right, he noted the plaintiff also required numerous medications. The left made the plaintiff unable to return to repetitive overhead activities.
213 In terms of the right shoulder, Mr Chehata noted that although the plaintiff was keen to pursue further employment involved in sales, he left school in Year 10 and had done labouring all his life, with no computer skills. He found it very hard to believe that the plaintiff would likely find employment in that field.
214 With his left shoulder problems, Mr Chehata thought the plaintiff had a capacity to perform administrative duties and was certainly keen to pursue a change in occupation involving sales but noted this was unlikely to be realistic given his limited education and skills.
215 Mr Chehata thought the prognosis in relation to the right shoulder was poor and the left, “undoubtedly poor”. Due to stiffness and ongoing pain, the plaintiff is unable to perform any household chores or recreational pursuits. He stopped riding his bike due to the ongoing pressure on both shoulders and was not able to swim. He found driving a car quite difficult. He was not able to perform unlimited overhead household chores or house maintenance and this was likely to be a permanent impairment.
216 Dr David Weissman, psychiatrist, examined the plaintiff in November 2019.
217 Following psychiatric assessment, Dr Weissman concluded the plaintiff is currently suffering from a Mild Chronic Adjustment Disorder with Anxious and Depressed Mood due to both periods of employment on a background of mild pre-existing Generalised Anxiety Disorder. That mild group of psychiatric conditions do not incapacitate him from any employment. Dr Weissman thought that if there was any incapacity for work, in this case, it would be due to purely physical/surgical factors which remain outside his expertise.
218 Overall, the psychiatric prognosis for the future was fair. If the plaintiff was able to obtain and maintain suitable duties in the future, then this may improve, and he would upgrade his prognosis from fair to reasonably relatively good.
Vocational evidence
219 Katrine Green, occupational vocational assessor, compiled a report of 8 January 2020, having interviewed the plaintiff, focusing on his bilateral shoulder injuries.
220 The plaintiff reported he currently experienced constant right shoulder pain that fluctuated in intensity, which was generally of a burning sensation. He also had nerve pains. He had intermittent but frequent referred pain from the right shoulder into the right side of his neck, and his neck was easily aggravated. He experienced right arm weakness.
221 The plaintiff reported left shoulder pain most of the time, which was of a burning sensation, and nerve pain, which was variable in intensity. He had left arm pain daily, which was of a burning weakness nerve sensation. He stated his right and left shoulder were the same, one not better or worse than the other.
222 The plaintiff also reported he continued to experience bilateral wrist pain. He had headaches on the right side and back of his neck about three days a week, which would last a few hours. He had daily mild low back pain which had been on and off for a long time. Current medication included Tramal and Panadol Osteo.
223 Ms Green noted the plaintiff worked for a short time as a contractor for Country Ride Call Centre. The job with Maymore was through a subsidised employment program due to the plaintiff’s right shoulder injury in 2015.
224 Ms Green thought it would appear that due to both his right and left shoulder injury, chronic pain and the impact it had on his employment, domestic, recreational and social lifestyle, the plaintiff had developed emotional and psychological symptoms, representative of adjustment difficulties and anxiety.
225 Ms Green considered that the plaintiff impressed as being very motivated to work and this was supported by his keenness to work after the initial injury, but that he had a limited understanding of what jobs he could be capable of doing.
226 Ms Green noted Mr Kossmann’s examination in September 2019, where he found the plaintiff was totally incapacitated in relation to both shoulders.[106]
[106]This report was not in evidence
227 Considering the plaintiff’s education, work history and transferable skills, Ms Green thought the main occupations for which he could be considered, would be truck driver, courier delivery driver, taxi chauffeur driver, crop farm worker, quality control fruit and vegetable packer, hand packer, forklift driver, factory process worker, general labourer, construction and building labourer, call centre, information clerk and retail sales assistant.
228 Having analysed those occupations, Ms Green concluded they were not suitable employment for the plaintiff within the foreseeable future on the basis of his right and left shoulder alone.
Piave – medical evidence
Treaters
229 On 7 May 2011, Dr Armitage reported:
“Wry neck for a few weeks especially after pallet jacking. Was better after rest over Easter and a few days Prednisolone. Now numb hands especially when he wakes up in the morning. Loading and unloading with pallet jack at work. Has had this condition only this year. Actions CERTIFICATE.”
230 Mr Chehata wrote to Dr Dhaliwal on 26 November 2013, noting the plaintiff was in a terrible state, with financial difficulties and ongoing issues after his right wrist surgery, following which he had developed right shoulder pain and stiffness. Failing a cortisone injection, he wished to discuss further treatment with the general practitioner.
231 Mr Ek wrote to Dr Dhaliwal on to 1 April 2014, having seen the plaintiff that day. He noted the plaintiff recalled that after right wrist surgery he was trying to get up out of a chair and experienced pain in his right shoulder.
232 Mr Ek thought the plaintiff was suffering from right shoulder subacromial impingement and bursitis. Having failed conservative measures, Mr Ek recommended arthroscopy and the plaintiff was keen to proceed with that surgery. Mr Ek advised he intended to refer the plaintiff to the Austin Hospital, where he would be put on the public waiting list.
233 Mr Ek wrote to Dr Dhaliwal on 29 January 2015, advising that seven weeks post-surgery the plaintiff was doing extremely well, and told him that the pain from his shoulder had almost completely disappeared and he demonstrated a full range of motion. He advised he was very pleased with the plaintiff’s current progress.
234 Mr Ek saw the plaintiff on 7 November 2016, two years post surgery. He again noted that the plaintiff was doing extremely well and had come to see him for a check-up, as advised by WorkCover.
235 The plaintiff had no pain in his right shoulder, and examination demonstrated a full range of motion and excellent strength, and no signs of impingement. He had some base of cervical spine tenderness and some muscle tenderness around his scapula; however, Mr Ek believed that was muscular related and not to his shoulder. He was very pleased with the plaintiff’s progress.
236 When seen again on 7 February 2017, Mr Ek noted the plaintiff had recovered very well. The plaintiff told him that his shoulder pain had improved with activity modification at his work. The plaintiff’s pain was predominantly localised over the supraspinatus muscle and extended up the neck, and Mr Ek suspected that was more of a muscular strain more than anything structural.
[135]Jeffery v Hazeldene's Chicken Farm Pty Ltd [2015] VCC 267
459 It was submitted what the Court was left with after close consideration of all affidavits and the plaintiff’s viva voce evidence, was a jumble of consequences, both in respect of pain and suffering and economic loss, and no ability to properly isolate and assess which consequences are caused by the left shoulder condition.
460 In this regard, there were numerous references to consequences of “both shoulders” in the plaintiff’s later affidavits in both matters. The Piave affidavits, particularly the first, focussed solely on the consequences of the right shoulder injury. Further, it was submitted the plaintiff gave a number of different explanations why he ceased work at Maymore and later at Terra.[136]
[136]T128, T130
461 It was submitted the Court should find the plaintiff, in his sworn evidence, had not disentangled the consequences of his left shoulder from his right sufficiently to allow the Court to undertake the analysis in Peak under both heads.
Comorbidities
462 It was also submitted that there was more than ample evidence of a very serious neck condition, possibly related to the shoulders, right greater than the left, that continued to very seriously impair the plaintiff’s enjoyment of life and capacity for employment.[137]
[137]T136
463 Neck symptoms were severe enough to warrant investigations in June 2017 and March 2019. The plaintiff reported serious neck complaints and impairments to Advanced Healthcare in October 2019[138] and were noted by Dr Ong in April 2019. Further, the plaintiff reported significant neck symptoms to Dr Baynes in August 2019 and to Ms Green in January 2020.
[138]Multi-disciplinary pain management initial assessment
464 It was submitted, and it was clear – and the plaintiff ultimately admitted as much – that he had ongoing neck symptoms which impaired his work capacity and his enjoyment of life, yet there had been no attempt in his sworn evidence to properly disentangle neck and left shoulder consequences for the Court to undertake its task.
465 It was stressed the plaintiff had been reporting, and agreed in cross-examination, his neck pain impairs his capacity for driving, and it was submitted that pain alone would incapacitate him for pre-injury employment.
466 There were also detailed submissions as to the involvement of the plaintiff’s wrist injuries to be considered when determining whether disentanglement is possible.
467 Submissions were also made in relation to a right knee injury which required investigation in 2012. Following a worsening in 2017, there was knee surgery in 2018 with prescription of Panadeine Forte at that time.
468 It was submitted the Court did not have available any proper medical comment upon the plaintiff’s right knee, with no report from the treating surgeon and no reference to it by Dr Chan, although clinical records indicated knee complaints in 2017 and 2018, which were also noted by Katrine Green in January 2020.
469 It was submitted that that was a condition that had required significant recent treatment and required some form of explanation from the plaintiff about the nature and extent of ongoing consequences. The Court should not be left to guess whether this condition causes ongoing consequences, and the present evidence does not allow that disentanglement to take place.
470 Further, it was submitted the Court should not have been left to guess about the impairment consequences of a longstanding back condition.
471 It was submitted there was evidence in that regard that was overwhelming. There was the history of a recent worsening to Mr Dooley and that back pain had been a problem for over twenty years. The plaintiff told both Mr Chehata and Ms Green of ongoing back pain, and Advanced noted his limited sitting tolerances.
472 It was submitted, like the knee injury, the plaintiff had not put material before the Court that could adequately allow disentanglement of the consequences of the back injury from other conditions. In the circumstances, the Court ought to accept an ongoing impairment caused by the lower back, including, importantly, the capacity to remain seated or standing for prolonged periods, such that would significantly impair the plaintiff’s capacity for pre-injury employment as well as his pain and suffering consequences.
473 It was also submitted that the evidence is highly suggesting of the plaintiff having a severe psychiatric condition which had troubled him since childhood and remained a severe problem today. He agreed that his psychiatric state had been so bad in 2018 and 2019 he could not have gone for work, yet his affidavits were silent in relation to this issue.[139]
[139]T130
474 The plaintiff has a longstanding psychiatric problem going back to 2009, with Primary Werribee records demonstrating significant attendances for depression and/or anxiety commencing in late 2014. Further, he ceased work at Maymore in circumstances which included a claimed psychiatric injury.
475 The plaintiff saw Dr Chan in relation to a psychiatric injury in 2015 and 2016, during which time the plaintiff was getting certificates for stress, anxiety and depression, and appears to have told Dr Senadipathy[140] that he ceased work because of his psychiatric condition.
[140]2016 medico-legal examiner
476 It was submitted during 2017, the plaintiff had not insignificant treatment and then had psychological treatment from “Catherine” during 2018. His condition was so severe in 2019, that Dr Ong described it as one of his main issues, and Dr Chan, in December 2019, described it as moderate to severe. As recently as January this year, Mr Dooley noted the plaintiff described significant depression.
477 It was submitted, notwithstanding this very serious psychiatric condition, there was no mention of it by the plaintiff in his affidavits, and in those circumstances, the Court should be sceptical of his viva voce evidence.
478 While the plaintiff may say that his condition had resolved, it was submitted that evidence was in stark contrast to his presentation to Mr Dooley, telling him he had significant depression in January this year. Further, the plaintiff conceded during the hearing that he resigned from Maymore because of “bullying and the shoulder”.[141]
[141]T82
479 In those circumstances, it was submitted the Court should be sceptical that the plaintiff had developed coping mechanisms, such that his anxiety and depression and anxiety no longer impair his work capacity.
Consequences – the narrative
480 If the disentanglement submission was rejected, counsel for Maymore submitted any consequences relating to the left shoulder, under both heads, are not “serious”.
481 In general terms, it was submitted it was clear that, “but for” the injury to the left shoulder, the plaintiff would be in a position now not too dissimilar to the position he is actually in, when viewed in the context of the activities and enjoyments already lost to him by reason of his other conditions.
482 It was submitted, on his own evidence, the plaintiff’s incapacity for manual employment was destroyed by his right shoulder. It was submitted if not that alone, that with his other comorbidities, it was entirely unclear what employment remaining to him after those conditions were considered, he had lost by reference to the left shoulder alone.[142]
[142]T138
483 Further, it was submitted all the plaintiff’s claimed pain and suffering consequences are explicable by reference to his right shoulder alone on his own evidence. When the Court took into account the right shoulder, the neck, the wrists, the back and the right knee, it was submitted it was clear that all the areas of the plaintiff’s life that he claims are impaired by reference to his left shoulder are lost by reason of those pre-existing conditions, and it is unclear what additional or further consequences arise from the left shoulder.
484 It was equally unclear, in terms of the impact of his psychiatric condition, as this was not deposed to by the plaintiff but he admitted it was so severe, which would put him out of work in 2018 and 2019.
485 Counsel for Maymore conceded the plaintiff is not suited to sedentary work, having limited education and working in manual roles for his working life. However, the thrust of the submission was that this capacity had been lost by virtue of other health conditions, particularly the right shoulder, not that the plaintiff was fit for any particular role. Mr Chehata’s 2019 opinion and Mr Dooley’ s view earlier this year was relied on in this regard.
486 Counsel for the plaintiff relied on the plaintiff’s difficulties with his left shoulder described in his first Maymore affidavit with respect to lifting, driving and sleeping. In his second affidavit, the plaintiff described his ongoing attendances for medical treatment, his referral to IPAR and his experience and skill level. His evidence as to his skill level was unchallenged.
487 In terms of non-work related consequences, the plaintiff described difficulties with left-handed activities, such as washing his car, heavy lifting and handyman activities.
488 While the plaintiff has problems sleeping due to pain in both shoulders, it was submitted his problems due to the ongoing continuous pain in his left shoulder could still be taken into account.
489 Given the plaintiff is left hand dominant, it was submitted the consequences of various restrictions were more significant than in relation to his right shoulder.
490 It was submitted the plaintiff was able to identify a left shoulder injury and the consequences flowing from it. The fact that there may be other consequences does not, in itself, detract from his left shoulder problems, which are the basis of this application.
491 The plaintiff also relied on his wife’s affidavit with respect to the change in his circumstances and difficulties and problems he had experienced with his left shoulder since ceasing work with Maymore.
492 Counsel for the plaintiff submitted the plaintiff’s work capacities are limited, only ever having done manual work, with no skill or experience in relation to sedentary or office work, as has been suggested by IPAR. It was submitted he either had the capacity to do heavy labouring or else he was unemployable.
493 Counsel for Maymore agreed that the plaintiff’s employment capacity was purely manual work but submitted his capacity for that work is now impaired by his right shoulder and other comorbidities. His marketable asset was his capacity to engage in manual employment. That was destroyed by conditions unrelated to the left shoulder in the three years before and after he worked at Maymore.
494 Counsel for the plaintiff submitted the plaintiff had the capacity when he started with Maymore in March 2015 to do concrete driving and continued to do that work until October 2016.
495 The plaintiff deposed, and was cross-examined, that he ceased that job as a result of his left shoulder restrictions and difficulties. He then worked for Terra for three months, before ceasing work because of his left shoulder restriction.[143]
[143]T50, T153 ff
496 The plaintiff tried working at Melbourne Containers for two days in March 2018, but had otherwise been unemployed.
497 It was submitted the plaintiff had consistently given evidence, including under cross-examination, he could not do driving or labouring jobs as a result of his left shoulder. The fact he had right shoulder restrictions before working at Maymore and that those continued, did not exclude or minimise the consequences of left shoulder injuries at Maymore and their incapacitating nature.
498 It was submitted the plaintiff currently, and for the foreseeable future, has no capacity to work in any labouring or truck driving. He does not have the capacity and it is not suitable employment to suggest he can work in a sedentary or office job as suggested by IPAR.
499 As Ms Green noted in her January 2020 report, the plaintiff is reliant on his physical capacity for employment. He does not have sufficient transferable skills to be considered for sedentary employment. She also thought he was unsuitable for work in call centres, retail staff, traffic controller or as a truck allocator.
Findings
500 For the purposes of this application, I must be satisfied that as a result of his left shoulder condition alone, the plaintiff has a serious injury and has suffered the requisite loss of 40 per cent.
501 While the plaintiff recently described right shoulder issues to Mr Dooley, he deposed, and confirmed in his viva voce evidence, that he does not believe he has the capacity for any employment because of the restriction in his arms, but particularly because of the worsening problems in his left dominant arm.[144]
[144]Paragraph [78] of my judgment
502 I accept the plaintiff has pain most of the time in his left dominant shoulder. His sleep is compromised by that shoulder pain, as Dr Chan recently confirmed.[145]
[145]Certificates of Capacity late 2019
503 The plaintiff’s left shoulder movement is restricted, as most examiners have observed. He is unable to engage in heavy or repetitive lifting with his dominant arm and is significantly limited in its use overhead.
504 Having accepted these left shoulder restrictions, most examiners in recent times consider the plaintiff’s left shoulder condition plays a role in his present limited work capacity. A number have opined the left shoulder alone results in the plaintiff not having a capacity for suitable employment on a permanent basis.
505 Pain management physician, Dr Ong, having diagnosed a range of conditions in April last year, thought the plaintiff’s left shoulder alone meant he could only do light occasional manual tasks with a maximum of two to three days a week, two to four hours a day, in an office-based sedentary role only and that he was currently unfit for pre-injury duties.
506 In October 2019, Mr Chehata thought the plaintiff did not have the capacity to perform his pre-injury duties because of compromised range of movement and ongoing pain in both shoulders. In relation to the left alone, he thought the plaintiff was likely to remain significantly restricted in terms of forward flexion and use of that upper limb. While the plaintiff had a capacity to do administrative work, he lacked the training, experience and education to do so.
507 Significantly, Mr Chehata thought the prognosis for the left shoulder was “undoubtedly poor” and that the pain management program was unlikely to be successful.
508 In late 2019, Dr Powell simply stated, as a result of bilateral upper limb problems, the plaintiff was unfit for his pre-injury duties but capable of sedentary tasks. He thought the plaintiff would be able to work in the IPAR suggested jobs of bus driver, forklift driver and salesman but not the other suggested jobs due to the upper limb use involved.
509 Dr Baynes thought, in relation to his left shoulder, the plaintiff was fit for alternative duties with restrictions on heavy and repetitive lifting, work above shoulder height, or involving pushing or pulling across the shoulders. He believed the plaintiff was fit to return to light administrative work as suggested by IPAR, work on a limited hours basis of twenty-five per week, with a progressive increase in full-time hours with work hardening.
510 It is difficult to see how Mr Dooley concluded that it is unlikely the plaintiff would have been able to continue working as a cement driver for more than a period of one or two years after October 2016 because of his right shoulder and wrist problems. Mr Dooley simply noted under “present complaints – “Mr Berton say he notes ongoing shoulder girdle pain and wrist pain.” Further, on examination, Mr Dooley found no particularly significant examination findings in the right shoulder compared to the left.
511 Mr Dooley was not asked to comment on the plaintiff’s work capacity in light of his left shoulder injury with Maymore, but rather excluding that injury. It was in answer to this limited question that he expressed his view which is heavily relied upon by counsel for Maymore.
512 I do not accept the plaintiff suffers from any psychiatric condition that would prevent him working or that has any other impact on his activities. Although Dr Chan noted the plaintiff’s anxiety and depression had been moderate to severe and a number of examiners consider psychological factors impact on the plaintiff’s current’s symptoms and work capacity,[146] significantly, neither medico-legal psychiatric examiners, Dr Entwisle or Dr Weissman, who have seen the plaintiff recently, consider he has an incapacity for work on psychiatric grounds, and described any condition as “mild”.
[146]Mr Dooley, Dr Baynes
513 Further, while the plaintiff had some psychiatric issues in 2016, by January 2017, Dr Dhaliwal thought the plaintiff had a current full capacity for pre-injury employment and duties.
514 The plaintiff progressed well with his counselling with “Catherine” in 2018. There was further counselling involved in the 2019 pain management course which is now over. The plaintiff explained that he had benefitted from the coping techniques he learned in that program and has a greater insight into his present situation and is motivated in regard to the future.
515 There is no suggestion that the plaintiff requires any further treatment of this nature and it is some years now since he last took anti-depressant medication.
516 The plaintiff’s wrist problems have fluctuated over the years. They did not interfere with his ability to work at Maymore or in later jobs.
517 When Mr Dooley saw the plaintiff in January this year, he did not suggest any further treatment for the syndrome, finding there was a good range of movement of the wrists and elbows. Further, Mr Chehata noted testing all confirmed an adequate decompression and post-operative changes.
518 While the plaintiff has complained of pain in the neck on numerous occasions, I accept his explanation, although clearly not a medical one, that he experiences this pain as part of this shoulder problem. The plaintiff has not been treated specifically for any neck problems. Any neck pain did not affect his ability to work at Piave, Maymore or in later limited roles. In my view, this is still the case.
519 Although the plaintiff told Mr Dooley about having longstanding back pain, the plaintiff has not been specifically treated in relation thereto in the past or at present. Any back pain the plaintiff may have or have had has not interfered with his ability to work as a driver or in other manual employment as a young man.
520 Finally, while the plaintiff underwent right knee surgery in 2018, he has described a good response to the surgery, and Mr Chehata noted on examination in October last year that in this regard, the plaintiff was relatively pain free.
521 Taking into account all the evidence, I am satisfied, as a result of the impairment to his left shoulder alone, the plaintiff does not have the capacity to engage in physical work – the only type of work he has done and for which he is suited, as counsel for Maymore conceded.
522 While he has some ongoing right shoulder restrictions, any impairment in relation thereto is not “serious”, as I found in the Piave application. Further, I do not accept, as counsel for Maymore submitted, that the plaintiff’s right shoulder injury had significantly worsened since his employment at Maymore.
523 My view as to Mr Dooley’s opinion has been detailed above. That opinion does not have the support of other examiners. Further, while counsel for Maymore relied on the 2017 IPAR report in this regard, that organisation focussed on the right shoulder as it was asked to do so by Gallagher Bassett, the Workcover agent in the Piave application.[147]
[147]T323
524 Clearly, the left shoulder is central to the plaintiff’s capacity as a manual worker, as it is his dominant arm. Even if he continues to experience some right shoulder issues, those relating to his left are the more serious because of the need to use his left arm constantly.
525 The plaintiff was able to do heavy work with Maymore for eighteen months, albeit with a right shoulder problem, having been cleared in relation thereto in February 2015. His evidence as to the heavy nature his Maymore work was unchallenged. Further, he was able to do his job at Maymore with a number of other comorbidities. His difficulties with manual work continued in the two short lived work roles thereafter.
526 I am satisfied that the plaintiff has lost his capacity for heavy work, save for shovelling, which was a problem before Maymore, as a result of the pain and restriction resulting from his Maymore left shoulder injury.
527 In my view, that consequence is serious and satisfies the narrative test.
528 The left shoulder impairment is also permanent. Despite cortisone injections, physiotherapy, surgery and the subsequent hydrodilatation, the plaintiff’s left shoulder problems continue and were not improved by the pain management program last year. Further, he continues to require painkilling medication for his left shoulder pain in the form of Tramal and Panadol Osteo.[148]
[148]Dr Baynes - current treatment materially contributed to by left shoulder injury.
529 Having made this finding, it is not necessary to consider the submission by counsel for Maymore based on the decision in Guppy v Victorian WorkCover Authority[149] which stood for the proposition that even if a 40 per cent loss was satisfied, the plaintiff nonetheless must establish serious loss of earning capacity consequences.
[149][2010] VSCA 164
Loss of earning capacity
530 Having satisfied the narrative requirements to obtain leave 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 – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
531 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.
532 The former must be calculated by reference to the six-year period specified in s325(2)(f).
533 “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.
534 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
535 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. [150]
[150]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at para (70)
536 I am therefore required to determine a “without injury” earnings figure. Submissions were made by both counsel as to the appropriate figure.
537 Counsel for the plaintiff submitted the Court needs to determine what the plaintiff’s pre-injury capacities were and what the consequences of the left shoulder are to that capacity. Pre injury, the plaintiff had the capacity to work as a truck driver but this was no longer the case because of his left shoulder injury.
538 Counsel for the plaintiff relied on the plaintiff’s earnings for the 2015-2016 financial year. That year, he received $39,294 from Maymore or $755 per week. If he has a capacity to earn in excess of $453 gross per week, the plaintiff will not have demonstrated a 40 per cent loss.
539 Counsel for Maymore submitted the most fair reflection of the plaintiff’s “without injury” earnings ought to be nil, given the evidence as to his apparent pre-existing comorbidities and the development of same.[151] The entirety of the evidence suggests that “but for” the left shoulder, the plaintiff would not be working as at the date of the hearing.
[151]Acir (ibid)
540 In this regard, it was submitted that the plaintiff’s affidavit endorsed by his viva voce evidence should lead the Court to accept he cannot work due to both shoulders. Counsel relied on the opinions of Mr Dooley and Mr Chehata in this regard. Further, it was submitted there was no evidence proffered by the plaintiff to suggest that “but for” his left shoulder the plaintiff would have had a capacity to work as at the date of hearing.
541 It was submitted it was already clear at some point in three years after the Maymore injury, the plaintiff would have ceased to have a capacity for manual work by reason of injuries unrelated to his left shoulder condition. The three years before and three years after should be taken from October 2016 or November 2015. Whatever the date, it was submitted within the time period, the plaintiff’s marketable asset had been destroyed by conditions unrelated to his left shoulder.
542 Counsel relied on Acir v Frosster Pty Ltd,[152] where J Forrest J noted the Court of Appeal description of the task of identifying the “without injury” earnings figure under s325(2) (f) of the WIRCA as being “not inconsiderable” and “very difficult” may have understated the problems associated with the determination of that issue.[153]
[152]Acir (ibid) at paragraph [160]
[153]T138 ff
543 The task is to fix a figure which “most fairly” reflects the earning capacity of the injured worker, absent the injury.[154]
[154]Acir (ibid) at paragraph [167]
544 His Honour considered how to approach a case where there was a supervening event post the claimed injury:[155]
“Fifth, the legislature chose to use the expression “earning capacity”. Traditionally, this expression has been used in the context of loss of earning capacity where a determination is made of the loss of the ability of the injured plaintiff to earn money or money’s worth by looking at factors relating to an individual’s body and mind and external factors such as the availability of work. It follows, I think, in the context of s134AB(38)(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of injury. The consideration of the period of the three years after the injury is confined to these matters. On this analysis a Court would be entitled to look at a worsening of a pre-injury condition affecting a worker’s capacity before the injury, but not to an independent supervening medical condition which would be a consideration solely at the damages trial. In this case Mr Acir’s condition was asymptomatic until at least February 2006 when the liver function tests, ordered by Dr Munir, revealed the abnormality.”
[155]Acir (ibid) at paragraph [175]
545 The Court of Appeal adopted at least part of J Forrest J’s analysis from Acir in The Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop.[156]
[156][2014] VSCA 292 (“Jessop”) at 36-7
546 In that case, the Court held:
“In our opinion, s 134AB(38)(f)(ii) of the Act is intended to be read as follows:
the gross income (expressed at an annual rate) that the worker:
· was earning from personal exertion; or
· was capable of earning from personal exertion; or
· would have earned from personal exertion; or
· would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the injury, as most fairly reflects the worker’s earning capacity had the injury not occurred.[157]
…
We agree with Ms Jessop’s submission that, for the purposes of s 134AB(38)(f)(ii) of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”[158]
[157]Jessop (ibid) at paragraph [42]
[158]Jessop (ibid) at paragraph [53]
547 Yirga-Denbu v Victorian WorkCover Authority[159] provides recent acceptance and application of both Acir and Jessop.
[159][2018] VSCA 35
548 It was submitted the plaintiff’s capital asset in this case was his capacity to earn in manual occupations. Within the relevant period of three years before and three years after injury, pre-existing unrelated conditions entirely destroyed that capital asset. In those circumstances, in the three years after injury, the plaintiff’s capital asset has been destroyed by reference to pre-existing and unrelated conditions, namely his right shoulder, neck, wrists, back, right knee and psychiatric condition.
549 The plaintiff was never suited to sedentary work and was also incapacitated for such work psychiatrically in any event.
550 Taking into account the plaintiff’s comorbidities, together with his right shoulder, it was submitted the picture was of a man who had no capacity for manual work completely unrelated to his left shoulder in the three years after injury. That was the position that most fairly reflected the “without injury” earning capacity.
551 It was submitted it would be to fall into error to do the analysis suggested by counsel for the plaintiff, taking into account plaintiff’s 2015-6 earnings at Maymore, as that did not most fairly reflect the “without injury” earning capacity, as even absent the left shoulder, the plaintiff would not have continued to work.
552 Further, it would be entirely unfair to Maymore to adopt the earnings from that job as the “without injury” earning capacity where there were pre-existing and unrelated conditions which put the plaintiff out of work completely after he ceased with Maymore.
553 I accept, as counsel for the plaintiff submitted in reply, that Mr Dooley’s opinion as to the continued employment of the plaintiff without his left shoulder injury should not be accepted as there is no proper basis for it, nor any proper explanation for how he reached that opinion. Further, Mr Dooley is alone in that view.
554 Even if the plaintiff would have stopped work by the end of 2018 because of his right shoulder, a situation I reject, that does not result in him not having a pre-injury employment capacity of a truck driver for the purposes of this application.[160]
[160]T156 ff
555 This Court’s role is not to consider quantification of damages but to determine what most fairly represents the plaintiff’s capacity to work without the injury, the subject of this claim. That is to be measured three years before and three years after injury. In this case, that requires looking at the period when the plaintiff was working for Maymore as a truck driver. It also includes looking at the three years after he ceased that work with his left shoulder injury. In that period, his work with Maymore most fairly represents his capacity for work.
556 The relevant test is what most fairly reflects the plaintiff’s “without injury” earnings. It is not a matter of whether or not that analysis is fair to Maymore in this case. My focus is on the gross income the plaintiff would have earned in the three years after the injury, if the injury did not occur.[161]
[161]T165
557 I also accept that there is no authority that a worker who may be forced out of employment within the relevant three-year period should have their loss of earning capacity determined at nil because of the intervention of some extraneous medical condition, whatever that may be.[162]
[162]Jessop (ibid) at paragraphs [30] and [33]; Acir (ibid) as approved by the Court of Appeal in Jessop, in particular, paragraphs [171]-[174] of Acir
558 In Acir, J Forrest J specifically rejected the proposition any supervening or extraneous condition which may affect a plaintiff three years after the onset of the relevant injury are to be taken into account. Accordingly, even if it was accepted another condition such as the right shoulder may impact on the plaintiff’s work capacity, I am to disregard it or any other comorbidities in reaching the appropriate “without injury” earnings figure.
559 Counsel for the defendant also submitted the present application should fail because it could not be established that after the date of hearing, the plaintiff will continue permanently to have a loss of earning capacity productive of a loss of 40 per cent or more.
560 As to permanency, Counsel relied on Judge Saccardo’s comments in Cuturic v Spotless Facility Services Pty Ltd.[163]
[163][2018] VCC 889 at paragraphs [29]-[34]; T142 ff
561 However, that case differs from the present as his Honour found that the plaintiff, who had turned seventy the year prior to the hearing, would not have continued to work past that age. Therefore, there was no loss as at the date of hearing or in the future and her application failed. The issue was not a supervening health issue.[164]
[164]T160
562 In the present case, I have found there is a loss of earning capacity on a permanent basis as at the date of hearing relating to the left shoulder injury. I reject the submission that by reason of the “myriad of other conditions” described by counsel for Maymore the plaintiff would not be earning such that it could now or in the future be said that the left shoulder injury is productive of any financial loss to the plaintiff.
563 Finally, I reject the submission by counsel for Maymore that the application fails as any loss attributable to the left shoulder could only be for the past and therefore damages in relation thereto would not reach the minimum statutory threshold.
564 In my view, the without injury earnings figure in this case is $755, sixty per cent of which is $453 per week.
565 As the parties agreed, the plaintiff has only ever been suited for manual work given his limited education, training and work experience. I am satisfied that as a result of his ongoing left shoulder pain and restrictions, this fifty-six year old plaintiff would be unable to reliably and consistently carry out any manual work where he would be able to earn in excess of $453 per week.
566 The plaintiff’s left shoulder restrictions have continued for some years without improvement despite a range of treatment, including surgery. In those circumstances, I am satisfied that the plaintiff’s loss of earning capacity is permanent.
567 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earnings capacity.
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