Cabuk v Vicfam Plastics Pty Ltd
[2012] VCC 942
•11 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-03885
| YALCIN CABUK | Plaintiff |
| v | |
| VICFAM PLASTICS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2012 | |
DATE OF JUDGMENT: | 11 July 2012 | |
CASE MAY BE CITED AS: | Cabuk v Vicfam Plastics Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 942 | |
REASONS FOR JUDGMENT
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Catchwords: Section 134AB(16)(b) of the Accident Compensation Act1985 (Vic) – Pain and suffering and pecuniary loss – Left shoulder injury – Whether impairment of the left shoulder resulted in pain and suffering and loss of earning capacity consequences – Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 – Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.F. Hore-Lacy QC with Mr M.J. Hooper | Zaparas Lawyers |
| For the Defendant | Mr B.G. Anderson | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings at common law pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) for the recovery of damages for pain and suffering and economic loss in respect of an injury to the plaintiff’s left shoulder.
2 While the defendant concedes that the plaintiff suffered a soft tissue injury to his left shoulder during the course of his employment with them, it is disputed that this injury comes within the definition of being a serious injury and that there is any ongoing organic injury to the plaintiffs left shoulder.
3 The plaintiff swore two affidavits, dated 3 May 2010 (“the first affidavit”) and 1 May 2012 (“the second affidavit”), in support of his application and gave evidence. Otherwise both parties relied on the material in their respective court books.
Background history
4 The plaintiff was born on 16 May 1978 in Turkey and is now 34 years of age. He undertook 11 years of schooling and two years of pre-entry study to try and obtain entrance to a mechanical engineering course. However, unfortunately, he did not get in. He then undertook national service for 15 months before coming to Australia to live in 2001. He is married with three young daughters.
5 The plaintiff arrived in Australia on 25 October 2000. Within a few weeks he found work on a vegetable farm where he worked for six months. He also undertook a basic English course. Before obtaining employment with the defendant in 2003, he worked for a number of other employers for short periods as a leather trimmer.
6 The plaintiff commenced employment with the defendant in December 2003. His usual job involved operating a machine which ground up recycled or rejected plastic products which could be reheated and remoulded into other products such as plastic pallets. He had to use a forklift to collect the reject products to place them on a conveyor to the machine. The plastic pallets produced were automatically loaded into large bags weighing about 800 kilograms and he used the forklift to take these bags to another part of the factory.
7 In early February 2008, the plaintiff was given work operating a guillotine machine to cut up bundles or bales of plastic rope. The bales were about two metres by 80 centimetres in size and, depending on how compressed the rope was, weighed between 120 and 250 kilograms. During this process, the plaintiff had to manhandle the bales and the work involved a lot of awkward pushing and pulling.
8 While performing this guillotine work in early February 2008, the plaintiff developed pain in his left shoulder (he is left handed). He went to his general practitioner, Dr Ufuk Uluca, on 8 February 2008 who gave him medication. By this stage, the plaintiff had returned to his usual machine operator work.
9 However, his shoulder pain did not resolve and the plaintiff returned to Dr Uluca on 29 February 2008 and received a certificate to be off work for a day. As his shoulder pain did not improve, the plaintiff went back to Dr Uluca on 19 March 2008, when he received further medication and another day off work. He then continued with his usual duties.
10 On 26 March 2008, when the plaintiff was asked to do more guillotine work, he did not think he could do this work due to his left shoulder pain. He was then sent by his employer to the Bridge Street Clinic (“the Clinic”) to be assessed and attended there on 26 March 2008. When he attended the clinic, they arranged for an x-ray of his left shoulder and gave him further medication and some work restrictions. It was at this stage that the plaintiff filled in a WorkCover claim.
11 The plaintiff subsequently had physiotherapy at the Clinic. In addition, he attended for further physiotherapy at Darrum Road, which he did twice a week for a few months and then once a week for a few more months. He stopped physiotherapy when they told him they could not provide him with any more help.
12 The plaintiff continued to perform his usual work and was told not to do any heavy lifting, pulling or pushing. He continued to see Dr Uluca, who put him on light duties. On 5 May 2008, he had an injection into his left shoulder. Dr Uluca also referred him to Dr Christine Le, rheumatologist, whom he saw on 8 May 2008. She arranged for an MRI scan of his left shoulder and neck on 16 May 2008. He saw her again on 22 May 2008.
13 Dr Le referred the plaintiff to Mr Martin Richardson, an orthopaedic surgeon, and also to Dr Clayton Thomas, a rehabilitation specialist. The plaintiff saw Mr Richardson on 24 June 2008, and he suggested that the plaintiff might see a chiropractor but the employer did not approve this. The plaintiff continued to work on light duties as certified by Dr Uluca.
14 The plaintiff saw Dr Clayton Thomas on 31 October 2008 and was told that he had a problem with some nerves. Dr Thomas added Lyrica to the plaintiff’s medication list. He continued to see Dr Thomas every three to four months. Dr Thomas suggested a rehabilitation course but this was not suitable as the plaintiff was working at Laverton and the course was in Pascoe Vale. However, he attended hydrotherapy at St Albans Leisure Centre once a week for six months at the recommendation of Dr Thomas.
15 On 6 March 2009, the plaintiff’s employer called him into the office and told him that there were no more light duties for him. Subsequently, Dr Thomas arranged for him to be assessed for a rehabilitation course on 6 August 2009. The plaintiff completed this course on 30 April 2010. He found that the course helped him to learn how to manage his pain and enabled him to do more household tasks such as gardening.
16 Dr Clayton Thomas referred the plaintiff to Dr Bruce Day, an electrophysiologist, who arranged for nerve conductor studies of his arm on 7 May 2009. Subsequently, Dr Thomas referred him to the Dorset Rehabilitation Centre for pain management. The plaintiff saw Dr Thomas several times in 2009 but has not continued to see him since then.
17 In or about April 2011, as a result of the ongoing pain in his left shoulder and neck, Dr Uluca referred him to Dr Peter Courtney, a pain management specialist. The plaintiff continues to see Dr Uluca at least once a month.
Medical opinion
Plaintiffs medical reports
18 There are a number of doctors who have given opinions in this case ranging from initial musculoligamentous strain of the cervical spine, cervical spondylitis and impingement of the left shoulder to neuropathic type pain syndrome.
i) Dr Christine Le
19 Dr Le, a rheumatologist, provided two medical reports dated 22 May 2008 and 18 May 2009. Her diagnosis was musculoligamentous strain of the cervical spine with cervical spondylosis and impingement of the left shoulder. In her opinion, the MRI of the cervical spine did not show any nerve root or cord pathology apart from low grade spondylitis. The MRI of the left shoulder showed probable evidence of impingement.
ii) Dr Jack Lipp
20 Dr Jack Lipp, a GP at the Clinic, reported on 28 April 2009 that the plaintiff had presented to the Bridge Street Clinic on 26 March 2008 stating that one month prior to presentation he was pulling a heavy roll of rope at work when he developed pain and restriction in his left shoulder joint. His diagnosis was that the plaintiff had an inflamed left shoulder joint.
21 On his examination, Dr Lipp found that:
“there was a full range of movement of the left shoulder joint associated with pain at the extremity of movements. There were no deformities nor shoulder girdle muscle wasting, there was no evidence of dislocation” (PCB p. 38).
iii) Dr Ufuk Uluca
22 There were a number of reports (14 May 2009, 24 December 2010, 14 July 2011 and 6 June 2012) from the plaintiff’s treating GP, Dr Uluca, who had been his GP for more than seven years. In these reports, Dr Uluca gave a history of the plaintiff, seeing him on 8 February 2008 and stating that “as a result of pulling a rope about a week ago at work he developed burning pain around his left shoulder” (PCB p. 40).
23 In these reports, Dr Uluca provided a history of the various experts that he had referred the plaintiff to and the x-rays that he had organised. In his most up to date report (dated 6 June 2012, PCB p. 49.3), his diagnosis was as follows:
1.Cervical spondylitis;
2.Neuropathic pain left upper limb
3.Depression.
24 On examination of the cervical spine, the plaintiff had a good range of movement without any restriction. His upper limbs, including the left shoulder, showed no evidence of muscle wasting. The mobility of the shoulder joints in both arms were within normal range. However, he experienced pain on active anterior flexion and abduction of the shoulder above 90 degrees. He had localised tenderness and trigger points around the left scapula.
25 Dr Uluca considered that the plaintiff’s employment was the main contributor to his injury. He reported that the plaintiff was not fit for his pre-injury employment but had a capacity for modified duties with work restrictions of lifting no more than two kilograms and no pulling or pushing duties with the left hand.
iv) Dr Clayton Thomas
26 Dr Clayton Thomas provided three reports (dated 14 November 2008, 11 February 2009 and 14 December 2010). Dr Thomas first saw the plaintiff on 31 October 2008 and his first report deals with the treatment he gave him including x-rays, physiotherapy and prescribing medication. He formed the view that there was a neuropathic type of pain syndrome and that there was no easy way to treat it. He described the plaintiff, in his report of 14 November 2008, as follows:
“On examination he was a large man. He was co-operative and genuine. He put in a maximum effort in the examination process. In the cervical spine examination there was some tenderness on the left side of his neck in amidst the local region but nothing significant. He had mild restrictions to cervical movements particularly in relation to bending to the right. His left shoulder examination was also mildly limited but external rotation was well-preserved. Movements of his neck and lower back seemed to reproduce pain in the upper trapezius”.
27 In the report of 14 December 2010, Dr Thomas accepted that the nature of the plaintiff’s problem “was difficult from a diagnostic point of view” and that he had symptoms which appeared “to be neuropathic”. There was no hard evidence of any specific nerve damage based on electrophysiological studies. The plaintiff had a work capacity. However, he was not able to return to unrestricted full pre-injury work duties.
v) Mr Bruce Day
28 In his report of 20 May 2009 to Dr Thomas, Mr Day queried as to whether there could be a musculoskeletal injury around the shoulder girdle as they could be extremely painful, difficult to characterise and very slow to recover even with prolonged periods of rest and appropriate therapy (PCB p. 56).
vi) Professor Martin Richardson
29 Professor Richardson, orthopaedic surgeon, reported on 8 July 2009 that the plaintiff’s –
“MRI scans showed some degenerative changes, particularly at the C5/6 level, but no obvious neural compressive lesions or canal or foraminal stenosis.”
30 and that –
“The left shoulder had some fibrocystic change. There were no other signs of instability or rotator cuff damage.”
31 Professor Richardson was of the opinion that there was no surgical lesion requiring his input. He found that, clinically, the plaintiff had a full range of shoulder movement with no obvious rotator cuff impingement. He also had a fairly free range of movement in his neck.
vii) X-ray of the cervical spine dated 21 April 2008
32 The conclusion was –
1. Moderately severe lower cervical spondylitis;
2. If clinical suspicion of disc pathology is high, then CT or MRI of the cervical spine is recommended (PCB p. 58).
vii) Mr Garry Grossbard
33 Mr Grossbard, orthopaedic surgeon, was alone in his diagnosis that “although much of the plaintiff’s pain was in the shoulder region, it was in fact in the trapezius muscle, which is secondary to the cervical spine, rather than an injury to the rotator cuff or shoulder joint itself”. He reported that the plaintiff was unfit to resume his normal work, particularly where bending, lifting or working at or above shoulder height was required. The plaintiff had a work capacity for light or sedentary duties where he was not required to look up or down for long periods of time or undertake repeated or heavy movement (PCB p. 60).
viii) Mr Justin Hunt
34 In his report of 7 March 2011, Mr Hunt’s diagnosis was:
“(i)Symptomatic cervical spondylitis, in particular degenerative changes at C5-6 motion segment with axial neck pain and left periscapular and left shoulder pain symptoms. Clinical presentation matches imaging findings.
(ii)Left shoulder impingement syndrome (subacromial bursitis and rotator cuff tendonitis) clinical presentation matches imaging findings.”
35 Mr Hunt was the only medical expert to diagnose that the plaintiff’s “cervical and left shoulder injuries represented an “aggravation of pre-existing mid cervical degenerative change and development of symptomatic impingement syndrome in his left shoulder”.
36 In regard to his domestic and daily activities, the plaintiff was limited and with regard to his economic capacity, Mr Hunt was of the opinion that the plaintiff would –
“…continue to be economically disadvantaged as a result of the left shoulder injury as he was not able to perform his pre-injury role or any alternative employment at the present time. It was likely this would persist into the foreseeable future in the absence of any discrete and treatable lesion that may be obvious on repeat imaging of his cervical spine left shoulder”(PCB p. 70).
ix) Mr Charles Flanc
37 In his report of 25 July 2011, Mr Flanc’s final diagnosis was as follows:
Cervical spine
38 The most likely diagnosis was that the specific episode of February 2008 caused a significant aggravation of the pre-existing degenerative condition of the cervical spine by making it symptomatic. The pain the plaintiff felt at the base of the left side of the neck spreading to the left shoulder girdle was referred from the condition of his cervical spine.
Pain around left shoulder girdle
39 It was unlikely that the plaintiff had sustained an injury to the left shoulder itself. It was possible that the lifting incident caused a muscular ligamentous strain affecting the muscles around the left shoulder blade but he doubted however, whether this pain would have persisted over such a long time if it had been a musculoligamentous strain alone.
The brachial plexus injury
40 The mechanisms of the injury of February 2008 were consistent with a traction injury of the brachial plexus, especially since the plaintiff had numbness radiating down the left upper extremity. On the other hand, there was no objective neurological abnormality affecting the left upper extremity.
Chronic pain syndrome
41 It was likely that the plaintiff had developed some degree of chronic pain syndrome in which there was sensitisation of pain pathways resulting in an increased severity and distribution of pain following an injury. This would amplify the pain effects of the original injury. It was also possible that his chronic pain has been influenced by psychological factors but that was outside his area of expertise.
42 In his opinion, the plaintiff had a theoretical capacity for light part-time duties, either supervisory or office-type work although his work experience in Australia would suggest that he would have difficulty re-training into a sedentary occupation which would be sustainable (PCB pp. 87-88).
x) Professor Mark Cook
43 Professor Cook, a neurologist and epileptologist, was of the opinion that the plaintiff had a neurological injury rather than a musculoligamentous one. He agreed with Dr Thomas that the plaintiff may have sustained a traction injury which had damaged the brachial plexus. He considered that the plaintiff was not currently fit for work of pre-injury type and he stated that it “was difficult to see what duties he might be suitable for given his limited language skills” (PCB p. 99).
xi) Dr Peter Blombery
44 Mr Blombery, consultant physician, diagnosed the plaintiff as suffering from “pain syndrome affecting the neck and left shoulder as a consequence of soft tissue injuries to the affected area and possible brachial plexus traction injury, together with degenerative changes in the cervical spine which were then rendered symptomatic by the injury”.
45 As to the plaintiff’s ability to work, it was his opinion that he was not able to do his previous job which involved heavy work with both arms, either now or in the future. He may be able to do light duties using mainly his right arm, but given his difficulties with English and the need for re-training, this would a long, slow and probably unsuccessful process. Even in the most optimistic situation, he would only be able to work a few hours a week using his non-dominant right arm (report of 5 March 2012).
Defendant’s medical reports
i) Dr Ufuk Uluca
46 With respect to the plaintiff’s work capacity, the defendant relied on Dr Ulna’s report of 27 June 2008, where his opinion was that the plaintiff had a capacity for modified duties but that he was not fit for his pre-injury employment. The last WorkCover certificate as to capacity issued by Dr Ulna was on 5 June 2008 and it stated that the plaintiff was fit for modified duties from 6 June 2008 until 27 June 2008 with work restrictions of no lifting of more than two kilograms and no pushing or pulling duties.
ii) The Medical Panel
47 The Medical Panel’s opinion was that the plaintiff was “suffering from persistent neck related symptoms against the setting of constitutional degenerative cervical spondylitis which was not relevant to the claimed neck injury”. They accepted that “the worker’s employment could possibly have been and was in fact a significant contributing factor to a now resolved soft tissue injury of the neck but the worker’s employment could not possibly have been and was not in fact a significant contributing factor to the development of constitutional degenerative spondylitis of the cervical spine, nor to any claimed recurrence, aggravation, exacerbation, acceleration or deterioration of any pre-existing injury or disease of the neck in any way”.
iii) Dr James Rowe
48 Dr Rowe, specialist occupational physician, provided two reports dated 3 June 2008 and 16 July 2008 (DCB pp. 17-23). In his opinion, the MRI scan of the plaintiff’s cervical spine and left shoulder on 16 May 2008 revealed that he had some minor degenerative change in the neck and there were some changes in his shoulder, which were consistent with possible impingement and tearing of the labrum.
49 Dr Rowe thought that the plaintiff’s treatment was reasonable and appropriate and that his prognosis was good. Although, in his report of 16 July 2008, Dr Rowe was not sure when the plaintiff would be able to perform his normal duties, he thought that if all went well he may be fit for normal duties within two months.
iv) The MRI of 16 May 2008
Cervical spine
50 The comment in relation to the cervical spine was –
“Low grade spondylitic change C5-6. No focally compressive disc prolapse, canal or foraminal stenosis”.
Left shoulder
51 The comment in relation to left shoulder was –
“With areas of fibrocystic change and small cleft in the posterior labrum, internal impingement is suspected. There was no other sign of instability, rotator cuff intact”.
v) Dr Mary Wyatt
52 In her report of 6 March 2009 (DCB p. 24), Dr Wyatt remarked on the MRI scans of 16 May 2008 that:
“The cervical spine film are unremarkable, and the shoulder scan does not demonstrate substantive pathology. Mr Cabuk’s clinical problem is more of a neck condition rather than a problem in his left shoulder”.
53 In her opinion, the plaintiff was not fit to do his normal duties. Appropriate restrictions were to avoid a lot of heavy forceful work with the left and dominant arm, and repeated significant lifting above shoulder height.
vii) Mr Michael Dooley
54 In contrast, Mr Dooley found no sign of physical injury affecting the plaintiff’s cervical spine. He was of the opinion that the plaintiff’s sole injury arising out of his employment with the defendant on 1 February 2008 was to his “left shoulder girdle and possibly limited to his left acromioclavicular joint”.
55 The plaintiff was fit to return to multiple forms of light work not involving heavy physical use of his left arm with repetitive movement, particularly at or above shoulder height. He reported that there should be restrictions for weight lifting of no more than five to seven kilograms until the plaintiff was near fully recovered (DCB pp. 30-36, reports of 4 August 2009 and 1 February 2010).
viii) Mr Dominic Young
56 Mr Young, a specialist occupational physician, was of the opinion that the plaintiff had a chronic pain syndrome involving the left shoulder, which condition had been contributed to by his employment. The plaintiff was unlikely to be able to return to his pre-injury work but he had a current capacity for work to perform tasks with the restrictions of avoiding left arm above shoulder height, avoiding left arm reaching tasks, avoiding left arm pushing and pulling tasks and avoiding lifting more than five kilos (report of 19 April 2010 DCB p. 37).
ix) Dr Kevin Fraser
57 Dr Fraser, a rheumatologist, was of the opinion that there was no ongoing work-related injury of a physical nature. While he could not exclude the possibility that the plaintiff’s initial symptoms were due to soft tissue strain, he considered that “anything of that nature should have long since resolved”. Dr Fraser also considered there were “non-organic factors of a psychosocial nature” and that the plaintiff was physically fit for his normal duties or any other work for which he is otherwise suited (report 8 July 2010).
58 As in Dr Fraser’s opinion, there was no physical incapacity, he believed that the plaintiff was fit for his normal duties or any other work for which he was suited, including work as a Crane Driver, a Grader or a Traffic Controller (report of 12 August 2010, DCB p. 45).
x) Dr Malcolm Brown
59 Dr Brown, occupational physician, diagnosed the plaintiff as having suffered “a muscle strain or tear with some subsequent psychological sequelae”. In his opinion, there was “no evidence of impairment or loss of body function resulting from the compensational injury” and he did not believe that the plaintiff had “any incapacity for employment as a result of the compensational injury”. He considered that, physically, the plaintiff had the capacity to be able to work as a Crane Driver, Grader or a Traffic Controller (reports of 13 July 2010 and 10 August 2010, DCB p. 52).
xi) Professor Stephen Davis
60 Professor Davis diagnosed the plaintiff as having suffered a “soft tissue muscular ligamentous strain to the left shoulder region in the course of his heavy guillotining duties in February 2008”. In his opinion, “there were no features of any brachial plexus thoracic outlet syndrome cervical radiculopathy or peripheral neuropathy”.
61 Professor Davis also described the plaintiff as having “an ongoing chronic pain syndrome focussed on the left shoulder” and appearing “to have some restriction of the left shoulder”. In his view, the plaintiff would be capable of performing light alternative duties but not his previous work (reports of 12 October 2011 and 30 January 2012, DCB pp. 58-64).
The injury
62 The onus is on the plaintiff to establish that he has suffered a compensable injury on or after 20 October 1999 and to sufficiently identify the injury. The case for the plaintiff is that, as a result his heavy work for the defendant particularly in February 2008 while handling heavy bales in the course of operating a guillotine machine, he suffered an injury to his left shoulder.
63 While the defendant conceded that the plaintiff suffered a soft tissue injury to his left shoulder during the course of his work for them in February 2008, it was submitted that there was no longer an ongoing injury of an organic nature to the left shoulder. In support of his submission that there was no longer an organic injury, counsel for the defendant relied, in particular, on the fact that the neurological testing of the left shoulder had not shown any neurology or nerve issues of any concern and that the scans on 16 May 2008 of the shoulders and cervical spine had not shown any significant pathology (transcript p. 46).
64 In his closing address, counsel for the defendant put the defendant’s position with respect to the plaintiff’s alleged injury as follows (transcript p. 57):
i. There is no ongoing organic injury;
ii. it is a case which involves a chronic pain syndrome; and
iii. it is a case which involves “confusion and complexity”.
65 Counsel for the plaintiff, on the other hand, submitted that, although there was no agreement as to the exact cause of the plaintiff’s pain, the vast majority of doctors were of the opinion that the injury suffered by the plaintiff was organic in nature. He relied on Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33 in submitting that the exact injury did not have to be identified and all that needed to be done was for the injury to be identified as being an organic one (transcript p. 71). In addition, he submitted that, if there was a chronic pain syndrome, it was an organically based one (transcript p. 74).
66 It is difficult to determine the exact nature of the injury to the plaintiff’s left shoulder, given that the MRI scan of 16 May 2008 revealed no substantive pathology in the left shoulder and there is a lack of evidence to support a neurological injury. However, I find on the balance of probabilities that during the course of his heavy guillotining duties, in February 2008, the plaintiff suffered a soft tissue muscular ligamentous strain to the left shoulder region (see the reports of Professor Davis, Dr Brown, Dr Fraser and Dr Lipp).
67 While I accept that he has also developed a chronic pain syndrome, I accept that his pain and restrictions are organically based rather than being of a psychological nature. Although there are differing opinions as to the exact nature of the injury to the plaintiff’s left shoulder, on analysing the medical opinions, this appears to be the majority opinion.
68 In this respect, I note that in his report, Professor Cook said:
“Putting aside any mental or behavioural aspects, your client’s pain and restriction relate to the organic injury of his left arm and your client will continue to suffer the consequences and incapacities of this injury into the foreseeable future”.
69 Dealing specifically with chronic pain syndrome, Mr Flanc said:
“In my opinion, it is likely that he has developed some degree of a chronic pain syndrome in which there is a sensitisation of pain pathways resulting in an increased severity and distribution of pain following an injury. This would amplify the pain effects of the original injury” (PCB p. 88).
70 Therefore, I reject the opinions of Mr Fraser and Dr Brown, which are inconsistent with the prevailing medical opinion, that the plaintiff’s shoulder injury is of an organic nature and continues to relate to the nature of his employment with the defendant.
71 In so far as no claim is made with respect to the plaintiff’s neck/cervical spine, I make no finding, other than to say that the radiology appears to supports a conclusion that the plaintiff has constitutional degenerative cervical spondyylitis, which was the finding of the Medical Panel.
Pain and suffering consequences of the injury
72 The next issue to determine is whether the consequences of the injury to the plaintiff’s left shoulder are such that it comes within the definition of being a serious injury.
The plaintiff’s case
73 The plaintiff’s case is that the consequences of his injury are very considerable. In his affidavit of 3 May 2010, the plaintiff deposed symptoms including:
· a burning, aching pain inside the muscles at the point of his left shoulder all the time with a heavy feeling as if there was a weight on his left shoulder;
· the discomfort spreads into his left shoulder blade and into the left side of his neck;
· his left shoulder pain is worse with any vigorous movement of the left arm;
· he cannot raise his left arm above shoulder height with his elbow extended because of the pain in the left shoulder and it is worse if he tries to raise his left arm in the front;
· he can only put his left hand behind his back at waist height;
· he can only hold about five kilograms of weight in the left hand and lift about five kilograms above waist height;
· when he has worse pain in his left shoulder and neck he gets a headache and sudden movements of the neck can produce worse neck and shoulder pain; and
· when walking, he tries to keep his left elbow close to his body and, when driving, he holds the steering wheel near the bottom with his left hand and uses the force of his right hand to turn the wheel.
74 When he was cross-examined about his pain, the plaintiff gave evidence that the most pain was in his left shoulder. He said he felt pain “at all times” in his left shoulder, even when he was sitting still, like he was in court (transcript p. 16). He also felt pain in his shoulder when he was not using it. When he was lying down, he had to keep his arm straight or he would feel a lot of pain and it prevented him from turning from one side to the other in bed.
75 The plaintiff deposed that he has learned to use his right hand for a lot more tasks to reduce the strain and pain in his left shoulder. He could still mow the lawn and do some gardening. When he mowed the lawn, he rested for five minutes to rest his shoulder but he usually had his brother-in-law’s help.
76 As to his recreational and sporting pursuits prior to his injury, the plaintiff used to enjoy going to the St Albans pool to swim about once a fortnight in summer. However, since suffering the injury, he can no longer swim. In addition, he used to kick a soccer ball with friends from the local area but he cannot play soccer now. He also cannot play freely with his daughter, put her on his shoulders or pick her up. Generally, he tends to socialise less because of the continuing discomfort in the left shoulder and the restrictions this places upon him. He feels frustrated, less patient and more irritable as a result of his injury. He is depressed that he cannot provide better for his wife and children.
The defendant’s case
77 The defendant’s case is that the soft tissue injury to the plaintiff’s left shoulder has resolved. In addition, counsel for the defendant submitted that, based on the medical reports and the plaintiff’s evidence, it was a mild injury, which was really to the tenor of that he “he could still move his left arm and extend it above shoulder height, but above shoulder height there was pain” (transcript p. 58).
78 In support of this submission, the defendant relied on video surveillance (taken on 28 September 2010, 30 March 2011, 22 June 2010, 24 June 2010, 29 June 2010, 2 June 2011 and 20 April 2012), which showed the plaintiff:
· sitting at a cafe with friends alternating between using his left and right arms to smoke cigarettes and to drink coffee;
· at the café rotating his neck for periods of time to his left to talk to a friend and later, to talk to another friend, rotating from the left to the right;
· using his left arm to collect and carry a shopping bag;
· moving an empty suitcase to position it closer to the boot; and
· reaching up above shoulder height with his left arm to pull down a car boot.
79 With reference to the café video surveillance, counsel for the defendant submitted that it showed that the plaintiff could use his left arm for everyday things. The footage of the plaintiff closing the boot with his left hand was submitted to “point to him not having any persisting disability that he was worried about with his left shoulder as he was not protecting it” (transcript p. 58).
80 When cross-examining the plaintiff about the video footage, counsel for the defendant also suggested to him that the video footage of him having coffee with his friends showed him rotating his neck to the left for extended periods without any apparent difficulty. However, the plaintiff claimed that he had turned his body around as well as his neck (transcript p. 26).
81 With respect to the video surveillance, I consider that it was not inconsistent with the plaintiff’s evidence. While the plaintiff did turn his head around to speak to his friend, it was only for a short time. It was not inconsistent with his evidence that he could turn his head to look sideways for short moments. If he was required to look, or to turn his neck continuously, he could not do this (transcript p. 17).
82 In all the video surveillance, there was only the one occasion where the plaintiff raised his left arm above shoulder height and this was when he shut the car boot. In the video surveillance, there were also periods when he was walking with his left arm straight down beside him or in his pocket (transcript p. 64). There was no video footage of the plaintiff vigorously using his left shoulder in a manner which was inconsistent with his claimed left shoulder injury.
Finding in relation to pain and suffering
83 After developing his injury in February 2008, the plaintiff returned to alternative light duties. In Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, it was stated:
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable".
84 In Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, Ashley JA and Beach AJA commented, in relation to these words:
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered”.
85 I found the plaintiff to be a straight forward credible witness. I accept his evidence as to the pain and restrictions suffered by him set out above. Although the plaintiff was able to perform modified duties after February 2008, I accept that he continued to suffer from pain in his left shoulder. This is borne out by the fact that during this period he continued to see Dr Ulna and to take medication, including Lyrica. In addition, he was seeing Dr Thomas and other experts to try and determine the cause of his continuing shoulder pain.
86 It is significant that the plaintiff continues to suffer from pain in his left shoulder every day and that it restricts his mobility in that he can no longer play sport and is restricted in playing with his daughters. The pain interferes with the ordinary activities of his life and although he can still function reasonably well his enjoyment of life has been considerably affected. I accept that he continues to suffer from the restrictions referred to above and that his social, domestic and recreational life have been adversely affected. In addition, I accept that he cannot return to his pre-injury work.
87 After considering all the evidence in this case, I am satisfied that the plaintiff has discharged the burden of proof with respect to pain and suffering and that he has suffered a permanent impairment of his left shoulder. In all of the circumstances of this case, I am satisfied with respect to pain and suffering that the plaintiff has suffered a permanent impairment or loss of function of his left shoulder, the consequences of which when compared with other cases in the range of possible impairments or loss of body functions, could be described fairly as being more than significant or marked, and as being at least very considerable.
Work capacity
88 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, he has a permanent loss of earning capacity of 40 per cent or more. The plaintiff will not establish the requisite loss of earning capacity if, taking into account his physical or mental capacity for suitable employment after the injury and his attempts to participate in rehabilitation or retraining, he has a capacity for any employment which, if exercised, would result in his earning more than 60 per cent of his pre-injury earnings, as determined in accordance with paragraph (f) of s. 134AB(8) of the Act.
Defendant’s case
89 The defendant relied primarily on the opinions of Dr Fraser and Dr Brown that the plaintiff was physically fit for his normal duties. Alternatively, the defendant relied on the opinions of Dr Uluca and Dr Thomas that the plaintiff could do full-time modified work. In addition, it was submitted that the plaintiff had demonstrated a proven capacity to work full-time in modified duties up until his retrenchment in March 2009. He was only 34 and there were a number of possibilities open to him including in particular those jobs suggested as being suitable in a rehabilitation report from Ms Joanne Bryant and Ms Nandi Moffett (report dated 5 August 2010, DCB p. 65).
90 The jobs suggested as being suitable for the plaintiff in this report were Crane Operator, Grader (Road works) and Traffic Controller. In their summary of the plaintiff’s functional capacity, the authors of this report found that:
· the plaintiff’s standing and sitting tolerances were not limited by his injury;
· that he had full function of his non-dominant right hand;
· he was independent with his personal care and could drive for an hour without requiring assistive devices;
· he could attend medical and other appointments;
· helped with the care of his young daughter and baby; and
· he was not housebound by his injury and could socialise with others.
91 The authors of the report considered that the restrictions that best applied to the plaintiff’s work were that he should avoid lifting more than five kilos and refrain from repetitively using his left arm. They described the plaintiff as motivated and stated that:
“We have looked for jobs that do not require a high level of writing or reading English and are confident Mr Cabuk’s current English speaking and comprehension skills are sufficient for their job recommendations. We have discussed in detail the occupations of crane operator, grader driver and road traffic controller as being potentially suitable for Mr Yalcin Cabuk. With a little training, his future earning potential is greater than his pre-injury wages, and with persistent, serious and supported job seeking, we see no reason why Mr Cabuk, at the age of 32, cannot transition into work that does not require him to lift more than 5 kilograms nor use his left arm repeatedly in the outer range” (DCB, p. 99).
92 The defendant’s case is that the plaintiff’s without injury earnings are $1,096 gross per week which is based on his tax return of 2008. If he were able to do any of the other jobs suggested, above full-time, he would be earning more than 60 per cent of his pre-injury job.
Plaintiff’s case
93 The plaintiff relies primarily on Mr Hunt’s opinion that “at present Mr Cabuk has no realistic work capacity” and on Mr Blombery’s opinion that “even in the most optimistic situation, he would only be able to work a few hours a week using his non-dominant right arm”.
94 While it was conceded that other medical experts were of the opinion that the plaintiff could do modified duties, it was submitted that they had not indentified an actual job that he could do (transcript p. 68). With respect to the jobs identified as being suitable by the authors of the rehabilitation report, it was submitted that they had identified three totally unrealistic jobs.
95 The jobs were said to be unsuitable (being, Crane Driver, Grader (Roadworks) and Traffic Controller) as the plaintiff did not have the necessary experience. In addition, I was entitled to take into account the fact that the plaintiff was presenting for a job as a person who:
· could not lift his arm above shoulder height;
· had no real experience, except being in the army and doing factory work;
· could not do pushing and pulling.
96 In addition, it was submitted that there was no real job such as the one that he did after his injury of passing the sticky plaster to a fellow worker. That was a fictitious job.
Finding
97 I am not satisfied that the plaintiff has made out his case with respect to economic loss. The plaintiff is still a relatively young man, being aged 34. The plaintiff managed to work full-time with the defendant on modified work for another year after his injury. His GP, Dr Uluca, has certified him as being fit for full-time modified work (no lifting above two kilograms and no pulling or pushing duties (DCB p. 15)), as have Dr Wyatt (avoid heavy forceful work with the left and dominant arm and repeated and significant lifting above shoulder height DCB p. 27), Dr Young (see DCB p. 42), Dr Thomas (see PCB p. 53) and Mr Grossbard (see PCB p. 62).
98 The plaintiff gave evidence that he would like the opportunity to learn English and find some office work (transcript p. 31). He would also like to try to do lighter physical work (transcript p. 32). However, he also gave evidence that given his skills (including the state of his English), he did not know if he could sustain 38 hours work. Maybe part-time or office work. He would have to try (transcript p. 42).
99 While the jobs of Crane Operator and Grader Operator appear somewhat unrealistic given the plaintiff’s background, I consider that the job of Traffic Controller would be within the plaintiff’s capabilities. Given that he is only 34 and his limitations are restricted to his left arm/shoulder, I consider that the plaintiff has a capacity for full-time modified work. I accept that $57,000 (for the tax year 2007-2008), which gives the plaintiff $1096 a week, is a fair reflection of his pre-injury earning capacity. As a Traffic Controller, the plaintiff would earn $823.90 per week, which sum exceeds the 60% threshold.
100 Accordingly, while I grant leave for the plaintiff to bring proceedings for pain and suffering . Leave is not granted in respect of economic loss.
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