Burrowes v Victorian Work Cover Authority

[2024] VCC 1649

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-02421

GEOFFREY BURROWES	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:

HIS HONOUR JUDGE PILLAY

WHERE HELD:

Melbourne

DATE OF HEARING:

8 October 2024

DATE OF JUDGMENT:

Ex tempore 9 October 2024

Revised Judgment 23 October 2024

CASE MAY BE CITED AS:

Burrowes v Victorian Work Cover Authority

MEDIUM NEUTRAL CITATION:

[2024] VCC 1649

REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION

Catchwords:              Serious injury application - Impairment consequences - Pain consequences - Stoic plaintiff - Left shoulder injury- Two injuries resulting in pain consequences - Does not diminish the pain emanating from injury

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Jarvie v Sideliner Contracting [2024] VSCA 144

Judgment:                  Serious injury application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Paul O’Dwyer SC Mr Brendan Johnson	LHD Lawyers
For the Defendant	Mr Andrew Saunders Ms Catherine Kusiak	Minter Ellison

HIS HONOUR:

1The plaintiff claims he suffered injury to his left shoulder on 1 December 2021. He claims that the injury is a serious injury in accordance with s335 of the Workplace Injury Rehabilitation and Compensation Act 2013.  There is no dispute as to the occurrence of the injury or the body function impaired.   The defendant put in issue whether the plaintiff's claimed impairment consequences were sufficient to reach the threshold required to satisfy the relevant definition of serious injury.

2As part of that submission the defendant submitted the plaintiff had other, unrelated, injuries which intermingled with his claimed impairment consequences. That lead to such uncertainty, the defendant submitted, that the court could not make findings which would allow the serious injury threshold to be reached in respect of the claimed impairment consequences such as to pain, sleep, golf, gold prospecting, and work where the left knee injury also played a significant role.

3Having regard to the entirety of the evidence, I find the plaintiff has sustained a serious injury for the following brief reasons.   Firstly, the injury to the left shoulder is substantial, frank and permanent.  Secondly, its consequences can be separated from the other impairment consequences resulting from his left knee in particular.  Thirdly, the primary impairment consequence is to narrow significantly his ability to work in his occupational field as a manual labourer.   Fourthly, he is a stoic man whose evidence was reliable and consistent.

4Dealing with those reasons in more detail and coming to the relevant history.   The plaintiff was born in April 1959.   He lives in Hazelwood North.   He is separated and has two adult children and two grandchildren.  He was educated to Year 10. After that he obtained work at Energy Brix Australia in Hazelwood and worked there for 31 years.   During that time he worked both as a briquette technician and also as a general handyman.   He has a reasonably unremarkable prior medical history.  It does not need to be recounted in any detail.

5What is of relevance is that the plaintiff came to have a total replacement of the right knee in April 2017 and has had longstanding knee problems prior to 2021. When the Energy Brix plant closed the plaintiff was made redundant.  He worked in casual positions for a period of time before commencing work with Ealawin Operations.  This position commenced on 23 February 2021 and was a fulltime position.

6He worked 40 hours per week. His job was to lay rumble stripping along the edges of roadways.   This required the plaintiff to work driving a heavy rigid vehicle which had a large kettle on the back. That kettle was used to mix up a hardened plastic substance which was then poured along the road marking.   When car tyres ran over the hard plastic ridging it created a sound effect which alerted the driver to the position of the tyres on the road.

7The plaintiff's job was to drive the rigid truck as well as to work on the back mixing the plastic substance in the kettle.    This required mixing large bags of product into the kettle and was physical work.   The plaintiff suffered injury on 1 December 2021 when he fell from the back of the kettle truck onto the ground.   He landed on his left side and sustained a fracture to the left clavicle.   He had associated milder injuries of the left knee, right wrist, and low back.

8For the purposes of this matter it is not necessary to dwell on these other injuries. He was kept overnight for observation but released in a sling to allow union of the left clavicle. The fracture did not unite, the shoulder began to waste and the plaintiff was referred to see Dr Malcolm Thomas, orthopaedic surgeon.   He diagnosed ongoing non-union and considered that surgery was necessary to fix the fracture with a plate and bone graft harvested from the hip.[1]

[1]                  Plaintiff Court Book (“PCB”) 21

9The plaintiff had that surgery on 8 March 2022.   Thereafter the fixation was found to be in a correct position and the plaintiff commenced physiotherapy treatment with Mr Alan Yates. The plaintiff gave evidence that he did not like taking medication and so took no medication in respect of the left shoulder injury at the time when it was fractured or even after the first surgery.[2]

[2]                  Transcript (“T”) 48.

10The plaintiff was considered unsuitable to return to work in his old position and he was certified fit for only alternative duties.[3]   Unfortunately, such duties were not available to him and he was forced to look for other work.  While seeking other work the plaintiff continued to complain of problems about his left shoulder and had further investigation with Dr Thomas. This revealed tears in the shoulder musculoligamentous structure.

[3]                  PCB 54.

11Dr Thomas proceeded to perform further surgery on 30 January 2023, which sought to treat those ligamentous tears and also biceps tendonitis.[4]  His weekly payments of compensation ceased on 15 February 2023.   The plaintiff saw Dr Thomas for review in early March 2023 and he considered that he had recovered well to that point and was able to return to work, though it does not appear that he was working. He has not seen the plaintiff since.

[4]                  PCB 22.

12The plaintiff saw Mr Yates for ongoing physiotherapy until about April 2023 when he was discharged from his care.   At that time, he was found with restricted motion in the left shoulder.[5]   In June 2023, the plaintiff began employment with ASH Timber through a labour hire company. In that position he worked full-time 40 hours, but at a reduced income.   I have set out the work hours of these positions as part of the plaintiff's case, was that he has to work to pay his mortgage and the loss of the Ealawin work put him in a position of difficulty and he had to work with pain and limitations.

[5]                  PCB 24.

13This work at ASH Timber involved him on the kindling line bagging kindling pieces of 4, then 10 kilograms weights, which he struggled with, and stacking such bags on a pallet.[6]   The plaintiff's evidence was that his employment with ASH Timber ended in early 2024.  This made it very difficult to pay his mortgage and so he approached a friend who ran a business called Murphy's Recycling.  He gave evidence that this was a reseller of second hand building materials.  Such things as guttering, corrugated roofing, downpipes and capping, and purlins.  The work at Murphy's was physical work.  In cross examination he described working to his own pace, perhaps three to four hours a day over three to four days per week.

[6] PCB 70, at paragraph [3].

14His work would involve him unloading materials from the trucks using a fork, pallet jack, and occasionally by hand.  He also on occasion helped customers move items from within the yard to their vehicles. This work is ongoing and the plaintiff gave evidence that it was very difficult to meet his mortgage repayments of about $356 per week.

15He gave evidence that work was important to him as he needed a sense of worth and he also wanted to continue to live in his property in North Hazelwood, where he had lived for the last 15 years.   Keeping his home was important.[7]

[7]                  T 34, Line “L” 7.

16Turning to the injury.  The injury is best defined as a fracture of the left clavicle with a left superior labrum tear involving both the subscapularis and supraspinatus tendons with fraying in the bicep.   A SLAP lesion according to Dr Thomas in his operation report.[8]

[8]                  PCB 22.

17There have been two rounds of surgery.   Firstly to address the non-union with the insertion of the plate and graft from the hip;  and secondly,  to repair the shoulder and biceps tendon.  No further surgery or treatment is required.   I find the injuries permanent. The body function impaired is the left shoulder. That was uncontroversial.

18Turning to the impairment consequences.  I accept and find that the plaintiff has limited range of motion and strength in the left shoulder.  It is his non-dominant side. However, he has always worked as a manual labourer and so strength and range of motion with the left arm is important to him.

19I accept his evidence that, and I quote from his affidavit:

“I find that lifting heavier items is painful and I am restricted in doing so. Repetitive lifting, reaching, or pulling causes me increased pain in my left shoulder – particularly if it is away from my body or involving overhead reaching, which I would now avoid.”[9]

[9] PCB 15-16, at paragraph [7].

20This evidence is consistent with the recordings of his long term physiotherapist, Mr Yates,[10]  and consonant with clinical examination findings that he makes.[11]   It is also consistent with the findings of medicolegal orthopaedic specialist, Dr Sheard.[12]  He noted ongoing wasting of the left shoulder at the time of the examination in mid-2024, suggesting decreased use and weakness. He opined there were marked limitations with the left shoulder.[13]   In contrast, the defendant submitted that the evidence of Dr Thomas, the treating specialist, was of a likely full recovery with no limitations.

[10]                 PCB 25.

[11]                 PCB 24.

[12]                 PCB 33.

[13]                 PCB 38.

21The defendant submitted that this was the likely situation, given the plaintiff's ongoing work history of doing manual jobs. The difficulty with accepting the opinion of Dr Thomas is that he last saw the plaintiff some 30-days after his second surgery which occurred on 30 January 2023.

22That consultation occurred while the plaintiff was still recovering and seeing Mr Yates, the physiotherapist.   Dr Thomas' opinion was early on in the piece and not fully informed as to the clinical picture which would subsequently evolve.   Mr Yates was more informed and Dr Sheard, even more so as he had time from surgery and treatment with which to gauge the success of the surgeries.

23He also had a large range of materials which informed his assessment.    So while there is a role for Dr Thomas' opinion, it does not accurately reflect the plaintiff's situation as at the day of trial when the court must make its assessment.   For these reasons, I accept Dr Sheard's opinion as to the physical limitations the plaintiff experiences with the left shoulder. It was next suggested by the defendant that the plaintiff's ability to return to work in physical, repetitive labouring showed he had few functional limitations in working with his left arm.

24The defendant first pointed out that the plaintiff had not specified why he could not return to work with Ealawin where he fell off the kettle truck.   Next, that his job at ASH Timber involved repetitively lifting and carrying 4 kilograms and later, 10 kilogram bags of kindling repetitively over the course of the day. And also his work at Murphy Trading also involved manual labouring with building materials which were often heavy and awkward to lift.  The plaintiff also gave evidence during cross-examination that he worked for three weeks or so at a panel beaters as a trades assistant.

25Once again, this involved, on occasion, lifting heavy pieces which were awkward to move.  It was submitted by the defendant that all these physical labouring positions showed that the plaintiff's function with the left shoulder was good and certainly not as restrictive as Dr Sheard found or the plaintiff gave evidence about in his affidavits.

26I reject those arguments.    First, at the date of the injury, the plaintiff was employed to work on the kettle truck.   After his injury,  he was assessed as being unsuitable for work on that kettle truck by an occupational physician, Dr Wilson.[14]

[14]                 PCB 54; PCB 58.

27So while his affidavit was not specific as to why he could not return to the kettle truck work, the occupational physician was quite clear.    It was not suitable for him to do the manual physical tasks of lifting the bags of plastic or getting in and out of the truck cab,  because it required three points of contact which would, I infer, stress the left arm. To interpolate, for a manual worker at his age to lose a component of their physical capacity such that their range of occupations is reduced is,  I consider,  a very considerable consequence.

28Second, the plaintiff is a man with a very significant, almost continuous work history.  He has always worked.  He spent 31 years at Energy Brix.   When the site closed, he worked casually until starting with Ealawin doing line marking in February 2021. This was full time, 40 hours per week.  This occurred four years after having a total knee replacement on the right side and two years after rupturing his right bicep.   Despite this, he worked on the kettle truck, climbing on and off and lifting and carrying heavy bags of plastic product.

29This is work that the occupational physician, Dr Wilson, described as being “physical”.  Further, he had a financial imperative to work.[15]  These things, in my opinion, show that the plaintiff was a man who wanted to work and needed to work, who persevered as best he could in the challenging circumstances he found himself in at any given moment.   Given these matters, it is entirely unsurprising that the plaintiff looked for and began work in the only type of work that he knew. That is, by deploying his physical capacity in a manual job.

[15] PCB 69, at paragraph [2].

30This does not gainsay the fact that he had a permanent injury to the left shoulder that was significantly restricting him.  This is supported by Dr Sheard's opinion. The role at ASH Timber on the kindling line, bagging 4 kilograms and then 10 kilogram bags was repetitive, manual work.   But on the plaintiff's evidence, it was all done below waist height.

31While this increased the pain, he did do this work.  The evidence of the job task was consistent with the restrictions both Dr Yates and Dr Sheard opined about.  By itself then, the role at ASH does not show the plaintiff had a greater physical capacity with his left arm than he has deposed to.

32Fourth, it is undoubted that the plaintiff is a stoic man determined to push on.  I accept that to be the case given his long work history,  his constant seeking of work after injury such as the total knee replacement on the right side and both shoulder surgeries and the obvious financial imperative which he deposed to. I also now record that I found the plaintiff to be an entirely credible and reliable witness in the witness box.   His manner was gruff, terse and to the point.   He did not waste a word.   He answered questions directly and never sought to avoid a question.

33He conceded matters properly, such as the effect of his left knee injury on him since October last year.   He did not seek to downplay this.   It was put to him that his evidence was unreliable as to those activities which would cause an aggravation of his pain.   In particular, he was cross-examined about whether lifting a fork, cup of coffee or piece of paper would cause pain.   It was suggested to him that if such activities could cause an increase in pain, then it was not possible to reconcile that with the physical,  manual,  repetitive labour he had done since the accident either at ASH Timber or with Murphys.

34The plaintiff's evidence was to the effect that it was the movement of the arm away from the body which acted on the constant pain that he was in to produce a worsening of his pain.  He demonstrated this in the witness box.  I consider his answers in respect to this cross-examination to be sound and entirely consistent with matters that he had deposed to.

35For example, as I have set out above, he had clearly deposed in his second affidavit to having worsening of his pain when his arm was moved away from the body.  That is consistent with Mr Yates' finding and also the inability,  on clinical examination,  to extend the arm above shoulder height.

36That is consistent with the work he was doing at ASH Timber which required work below waist level.  Similarly,  it was suggested that his failure to take medication or return for treatment to his treating doctor,  Dr Thomas or Mr Yates,  indicated that his problems with his left shoulder were not as significant as he had deposed to. This encompassed both limitations on his physical capacity and the pain that he claimed emanated from his injury.   I do not accept that submission for the following reasons.

37First,   the plaintiff deposed to not wanting to take medication to deal with his pain. That is not a new situation and his medical notes are replete with the evidence of circumstances where pain medication could be expected yet he did not take it.  A good example of this arises in 2017 after the total knee replacement when he took only minimal medication.  The same in 2019 with his ruptured bicep.

38Similarly, after both left shoulder surgeries, he did not take medication. Clearly, the plaintiff has a firmly held belief that he would prefer to know the strength of the pain so that he can deal with it,  rather than mask it with pain medication.[16]   That is not to deny that the pain exists.

[16] PCB 15, at paragraph [45].

39I am mindful of the comments of President Maxwell in Haden Engineering Pty Ltd v McKinnon[17] that pain can be measured by not only what the plaintiff deposes to, but also by what he does about it.   In this case, however, I consider there are rather unique circumstances where there is a long history of not wanting to take pain medication for any number of conditions, it seems to me of little moment that he takes no medication in respect of the left arm and shoulder.  As to treatment, he has not been offered any ongoing treatment and has decided that he, 'just has to put up with it'.

[17] [2010] VSCA 69.

40This again reveals his stoicism remains consistent and dates back, encompassing his historical injuries.[18]   Overall, I was left with a positive impression of his evidence and I considered him a witness of truth.  For these reasons, I do not consider the evidence of his work post-injury or lack of treatment and medication, properly founds the submission that he had greater functional capacities than those he deposed to.

[18]                 Jarvie v Sideliner Contracting [2024] VSCA 144 at [69].

41Now, turning to the impact of Peak Engineering & Anor v McKenzie (‘Peak Engineering’).[19] In cross-examination, the plaintiff accepted that since about October 2023, he had been struggling with the impact of the longstanding knee injury.   On occasion, that injury caused him to limp but produced pain which was almost constantly present to varying levels.   In cross-examination, he accepted that the left knee injury had significant effects on his ability to sleep, garden, play golf and engage in gold prospecting.   I consider that I am bound to apply the principles expressed in Peak Engineering.[20]  

[19] [2014] VSCA 67 .

[20] [2014] VSCA 67 at [24]-[26].

42This requires a calling to account of all the impairment consequences said to emanate from both injuries and then make a determination of the effect on the impairment consequences of the accepted workplace injury.   Starting with sleep. His evidence was that his sleep was severely interrupted by the pain from the left shoulder.[21]

[21] Affidavit of Geoffrey Burrowes sworn 11 October 2023, at paragraph [30].

43His further evidence was that he had difficulty getting to sleep due to the pain in his left shoulder and would tend to wake three to four times per night on average. He would wake up for anywhere from around fifteen minutes to an hour before being able to return to sleep.[22]

[22] PCB 17, at paragraph [13].

44He accepted in cross-examination that this was correct.[23]   In cross-examination, he stated that his sleep problems were affected to a significant degree by his left knee problems. [24]   Given the state of the evidence, I am only in a position to find that the plaintiff's sleep is affected to some extent by his left shoulder injury.

[23]                 T 11, L 3-5.

[24]                 T 37, L 20.

45This is because his answers in cross-examination were to the effect that the left knee had such a significant effect on his sleep. I am not able to make more detailed findings. All that can be found is that the left shoulder injury does have some disruptive effect on his sleep.

46Turning to the claimed impairment consequences of not being able to continue with gold prospecting as a result of the left shoulder problem. The plaintiff admitted in cross-examination that there was no way he could continue with gold prospecting because of the state of his left knee.[25]   Given this evidence, I find it is not possible to substantiate the claimed impairment consequence as resulting from the left shoulder injury.   The same finding obtained in respect of golf.[26]

[25]                 T 37, L 27.

[26]                 T37, L30; T38, L3.

47As to gardening, the plaintiff deposed to being unable to garden as he used to by reason of the shoulder injury.  In cross-examination, he disagreed that the main reason for not being able to garden was the left knee.  The evidence in cross-examination, however, leaves me overall in a position where I am unable to determine exactly what aspects of gardening have been impaired by reason of the left shoulder injury and not affected by the left knee injury.  For this reason,  I am unable to delineate those impairment consequences said to flow from the left shoulder injury.  I put this claimed impairment consequence to one side.

48Turning to the issue of pain.  I have touched on this briefly above.  The plaintiff deposed to having daily pain and discomfort in his left shoulder and left collarbone area.[27]   In his second affidavit, he deposed to experiencing ongoing daily pain in the left shoulder down into the left arm.  He described the pain as 'aching pressing pain which does not go away and was present with simple daily tasks'.[28]

[27] PCB 12, at paragraph [30].

[28] PCB 15, at paragraph [7].

49He admitted in cross-examination that he also has had pain in his left knee since at least October 2023, which can at times be significant.[29]  However, in re-examination, he accepted that the pain in the left knee had been similar to which he experienced in 2021 and when he was working on the kettle truck.

[29]                 T 35, L 15.

50The significance of that was, as plaintiff's counsel put it, that the plaintiff at that time had been working a physical job on the back of the kettle truck and driving. He had managed that physical job full-time for several months with the left knee problem by simply getting on with things.

51The plaintiff's counsel submitted that was good evidence that the left knee pain was manageable and the dominant issue for the plaintiff now is really the pain emanating from the left shoulder.  I accept plaintiff's counsel submission on this point. I find that the plaintiff is in constant daily pain emanating from both the left knee and left shoulder.  The left knee pain,  however,  is of much lower level,  which is demonstrated by the fact that the plaintiff could work through it,  such as when he was on the back of the kettle truck.

52However,  the pain associated with the left shoulder causes him much greater problems, such that he is aware of the pain, and it interrupts and stops certain physical activity.  So for example, the lifting of minor items away from the body causes pain, which he becomes immediately aware of.[30]

[30]                 T 32, L 26-28.

53This is a significant marker of the severity of the pain consequences emanating from the left shoulder injury.  The fact that there are two injuries resulting in pain consequences does not diminish the pain emanating from the left shoulder injury.[31]

[31]                 Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 at [110].

54This pain has been with him for three years.   It is a chronic pain that will remain for the rest of his life.  This at least is a very considerable consequence, in my estimation.  To summarise my findings in respect of pain consequences which emanate from the left shoulder, I find that it is a daily pain in the left shoulder and into the left arm.  The plaintiff is constantly aware of it, it has an aching pressing quality and does not recede. It is aggravated by even light tasks which involve lifting and particularly which takes the arm from the ribcage.  That pain is present both day and night.  It may be aggravated by overuse or heavy work.

55The plaintiff deposed to a range of activities of daily living which were made more difficult by reason of the left shoulder injury such as vacuuming, dressing or showering.  These have to be accepted, given my acceptance of his evidence. Therefore, I find that he has difficulty with showering properly, dressing and doing the vacuuming about the house by reason of the left shoulder injury.

56It also falls to consider what the plaintiff has retained, as one method by which it can be established what impairment consequences have been sustained.  Here the plaintiff can work in limited manual occupations which do not involve repetitive heavy lifting, particularly that which involves movement of the left arm away from the body and particularly above shoulder height.

57He deposes and I accept that if the work at Murphy Trading was increased to full-time, he would accept it.   His ability to drive rigid vehicles is also curtailed because, as Dr Wilson opined, clambering in and out of the truck requires three points of contact and he cannot maintain this.  He has retained the capacity to live independently and manage his property.  He can drive. He does not take medication and appears to still be doing some gardening.

58Overall, balancing these matters, I consider the plaintiff has sustained a serious injury.  This is primarily because of the very significant physical restrictions that he now experiences, by being able to only use his left arm in a limited manner.  The effect of that is to reduce his range of occupational capacity significantly.

59His stoicism has allowed him to continue working, but it is with limitations.  That has a significant effect on him because, in his words, work was both a source of enjoyment and pride to him as well as being necessary for him to continue the life that he wanted, which was as an independent one at his property.

60Having that occupational ability curtailed is a significant impairment consequence. In addition,  the left shoulder injury has had some effect on his sleep and ability to function around the home and play with his grandchildren.  I would also repeat his very significant pain consequences.  Taking these matters together with the fact that he has already had two surgeries results in my finding that the plaintiff has satisfied the requisite statutory test.  I will grant the plaintiff's application in respect of pain and suffering.  I will hear the parties as to orders.

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