Cameron v Victorian WorkCover Authority
[2023] VCC 923
•20 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03077
| MARK HUON CAMERON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2022 | |
DATE OF JUDGMENT: | 20 June 2023 | |
CASE MAY BE CITED AS: | Cameron v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 923 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left shoulder – leave sought for pain and suffering
Legislation Cited: Accident Compensation Act 1986 (Vic), s134(37)(a) and (c)
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries and Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Petkovski v Galletti [1994] 1 VR 436; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Ms P Prossor | Maurice Blackburn Lawyers |
| For the Defendant | Mr A W Middleton | Lander & Rogers |
Table of Contents
Introduction
The Plaintiff’s background
The Plaintiff’s injury on 5 November 2011 and subsequent treatment
Witnesses and evidence
The Plaintiff’s medico-legal reports
Dr Jennifer Flynn
Mr Ash Chehata
Mr Ash Moaveni
Dr James Rowe
The Defendant’s medico-legal reports
Dr Umberto Boffa
Submissions
Plaintiff’s submissions
Defendant’s submissions
What injury did the Plaintiff suffer on 5 November 2011?
Was the injury on 3 April 2018 an aggravation injury?
Did the Plaintiff sustain any further shoulder injuries?
Conclusion on compensable injury
Permanence
Credit
Impairment consequences
Pain
Medication and medical treatment
Sleep
Employment
Activities of daily living
Home maintenance and gardening
Capacity to play with grandchildren
Sports and hobbies
Driving
Travel with partner
Stoic
Findings
Conclusion
HER HONOUR:
Introduction
1On 5 November 2011, the plaintiff suffered an injury to his dominant left shoulder when he slipped and fell down some stairs, in the course of his employment with a labour-hire company, APS Group Transport Pty Ltd (“the defendant”). He was working as a truck driver at the premises of Americold Logistics Pty Ltd (“Americold”).[1]
[1] Americold was originally known as Versacold
2The issue to be determined in this proceeding is whether, on the balance of probabilities, the plaintiff’s claimed left shoulder injury is a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” pursuant to s134AB(37) of the Accident Compensation Act 2013 (“the Act”), such that the plaintiff should be granted leave pursuant to s134AB(16)(b) of the Act, to issue common law proceedings for the recovery of pain and suffering damages.
3A further claim that anxiety and depression constituted a serious injury within the meaning of paragraph (c) of the definition of “serious injury” was abandoned by the plaintiff at trial.[2]
[2] Transcript (“T”) 12, Line/s (“L”) 13-21
4For the reasons which follow, I have determined it is appropriate to grant the plaintiff leave pursuant to s134AB(16)(b) of the Act, to issue common law proceedings for the recovery of pain and suffering damages.
The Plaintiff’s background
5The plaintiff was born in April 1956 and was sixty-six years old at the date of the hearing.
6He is married with two adult children and four grandchildren.
7He is left-hand dominant and hearing impaired.
8He finished school partway through Year 10 and undertook an apprenticeship as a butcher.
9After completing his apprenticeship, he worked as a butcher for around nine years, before commencing employment at Ferntree Gully Abattoirs.
10In 1993, he began working as a truck driver for Frew Logistics, where he remained working until 2008.
11In approximately May 2008, he began working with the defendant on a permanent part-time basis. He was permanently placed with the business, Americold. He worked the afternoon shift during the week, from 4.30pm until either midnight or 4.30am. He normally had Friday off and then worked on Saturday and Sunday, starting work at 4.00am and working until 4.00pm. He regularly worked sixty or more hours per week.
12During the week, his regular duties were truck driving. On the weekends, he normally did loading work at the Americold premises in Laverton.
The Plaintiff’s injury on 5 November 2011 and subsequent treatment
13On 5 November 2011, the plaintiff injured his left shoulder. He had gone up the stairs at Americold’s premises to look for a meat pallet that was missing. As he was coming down the stairs, he fell and landed on his left shoulder.
14The plaintiff was taken to Footscray Hospital by ambulance and was discharged the same day.
15At the request of the defendant, the plaintiff saw Dr Rita Tuladhar, general practitioner, at the Casey Super Clinic, also known as the Valewood Clinic, in Mulgrave. He had one week off before returning to work.
16Soon after returning to work, he felt a pop in his shoulder when he was reaching up to clean a truck windscreen. The pain worsened over the following few days. He attended the Valewood Clinic again and was prescribed anti-inflammatory medication and Panadol Osteo.
17On 8 November 2011, the plaintiff underwent a left shoulder ultrasound. This revealed his biceps tendon was intact, as were the remainder of the rotator cuff tendons. The biceps tendon was normally enlocated within the bicipital groove and there was minimal fluid identified within the biceps tendon sheath. Enthesopathy at the insertion of the supraspinatus tendon was noted. The subacromial/subdeltoid bursa was thickened and contained fluid. There was a minimal capsular bulge of the acromioclavicular joint noted and bursal bunching on abduction.
18The plaintiff was referred for cortisone injections into his left shoulder in December 2011.
19From 30 November 2011 to 2 March 2012, the plaintiff consulted Mr Brendan Phillips, physiotherapist, at the request of the defendant. When first seen, without the benefit of imaging, Mr Phillips’ diagnosis was one of subacromial bursitis and a dysfunctional rotator cuff. As treatment progressed, Mr Phillips considered the plaintiff’s left shoulder displayed clinical signs of labral pathology. Mr Phillips sent a letter to the plaintiff’s general practitioner requesting the plaintiff undergo an MRI left shoulder scan.
20On 10 January 2012, the plaintiff was referred to Mr Douglas Li, shoulder surgeon.
21Arrangements were made by Mr Li for an MRI scan to be taken of the plaintiff’s left shoulder. This was undertaken on 3 February 2012. The findings of the MRI scan of the left shoulder were of marked AC joint degenerative changes with effusion and inferiorly directed synovial cyst/synovial proliferation. There was outlet impingement resulting in a full-thickness, full-width tear in the supraspinatus, with medial retraction of the tendon fibres. There was extensive tearing of the labrum anteriorly, superiorly and posteriorly. Diffuse synovitis was affecting the glenohumeral joint. Degenerative arthropathy was noted superiorly within the glenoid and posteroinferiorly.
22The plaintiff was reviewed by Mr Li again on 21 February 2012 after undergoing the MRI scan of the left shoulder. Mr Li recommended surgery which was performed on 8 March 2012. The operation report identified a large and retracted left rotator cuff tear. There was a large subacromial spur impinging upon the rotator cuff, and subacromial bursitis. There was instability in the longhead of the left shoulder biceps, and left shoulder acromioclavicular joint osteoarthritis.
23The plaintiff was discharged home the next day with a sling to immobilise his shoulder. He was off work for approximately seventeen weeks.
24As part of his rehabilitation, it was suggested by Mr Li that the plaintiff be referred to Mr Darragh Curley, physiotherapist, for physiotherapy treatment.
25The plaintiff was reviewed by Mr Li again on 29 March 2012. In a report to the plaintiff’s general practitioner, Dr Vithura Jeyasingham, of the same date, Mr Li noted he had explained to the plaintiff he had a “massive tear of the rotator cuff and that extensive surgery was performed”.
26By 10 May 2012, the plaintiff was reported by Mr Li to be well, with minimal pain. His shoulder was making good progress. He was able to flex to 90 degrees, abduct to 90 degrees and internally rotate to L3. Passively, he had near full range of motion. His rotator cuff and biceps were still weak.
27On 24 May 2012, following a request by letter dated 14 May 2012 from Mr Curley, Dr Tuladhar referred the plaintiff for hydrotherapy treatment, also with Mr Curley. That ceased in December 2012.
28Following surgery, the plaintiff was able to return to his pre-injury duties as a truck driver after a few months. Initially, he worked one to two days per week and gradually built up to resume his normal pre-injury hours.
29On 19 July 2012, Mr Li reported to Dr Jeyasingham that the plaintiff “feels the shoulder is fantastic. He has no pain. He has good motion with flexion 150 degrees, abduction 120 degrees, internal rotation to T12 and external rotation 30 degrees … .” Mr Li noted some scapular thoracic hitching. He also observed that the rotator cuff had good strength but was still slightly weak. The plaintiff had returned to work part time, three days per week, as a truck driver.
30On 13 September 2012, the plaintiff was noted by Mr Li to have had an “excellent outcome”. Mr Li reported, “He has no pain”. His motion was good, with flexion 160 degrees, abduction 150 degrees, internal rotation to T12 and external rotation 30 degrees. There was some mild scapular thoracic hitching but his rotator cuff and biceps had good strength. The plaintiff had returned to work full time with four days driving and one day of administration. Mr Li considered the plaintiff was ready to return to full-time normal work duties.
31A summary of the plaintiff’s treatment by Mr Li, up to September 2012, was contained in a later report from Mr Li dated 1 October 2019.
32The plaintiff’s physiotherapy treatment with Mr Curley ceased in about December 2012.
33From 2013 to 2019, the plaintiff consulted general practitioners at the Rowville Central Clinic.
34In May 2016, the plaintiff was diagnosed with Lymphoma cancer.
35In January 2017, he was diagnosed with Secondary B cancer. He underwent a series of chemotherapy treatments which ended in March 2019.
36In 2017, the plaintiff underwent surgery to repair his left retina at The Royal Victorian Eye and Ear Hospital.
37On 3 April 2018, the plaintiff hurt his left shoulder at work in a collision between two electric pallet jacks. Following the collision, the plaintiff attended the Rowville Central Clinic. He returned the next day, at which time his shoulder was reported to be “better”.
38In February 2019, the plaintiff attended The Royal Melbourne Hospital after an incident at work when he was hit by a heavy pallet.
39In March 2019, the defendant lost the contract at the Americold site. The plaintiff was offered a position at Sargeant Transport in Laverton but did not accept that position.
40From March until 20 May 2019, the plaintiff took long service leave.
41In early April 2019, while on long service leave, the plaintiff relocated from Rowville to Baranduda in Northern Victoria.
42On 20 May 2019, the plaintiff resigned his employment with the defendant.
43After the plaintiff moved to Baranduda, he commenced as a patient with the Central Medical Group. Dr Mark Trotter and Dr Prianka Das were his general practitioners.
44In September 2020, the plaintiff sought treatment for his eyes from Dr Paul Giles, eye specialist, at the Albury Eye Clinic, and underwent cataract surgery.
45On 30 May 2021, Dr Tuladhar prepared a report detailing the plaintiff’s medical examination, management, diagnosis and treatment following his presentation to the Valewood Clinic.
46On 4 June 2021, the plaintiff attended Dr Prianka Das to obtain a referral for a scan on his left shoulder.
47On 9 June 2021, the plaintiff was referred for an x-ray and ultrasound of his left shoulder. The x-ray showed that on the internal rotation view, there was a corticated focus of calcification projected over the superolateral aspect of the humeral head. On the lateral view, a smaller focus of calcification was projected between the humeral head and the acromion. The corticated nature of the calcifications was not typical for calcific tendinosis. The humeral head was elevated relative to the acromion, with joint space narrowing and inferior marginal osteophytosis. This was in keeping with osteoarthritic change. There was likely a chronic complete tear of the rotator cuff as well with some lobulated new bone formation over the superior aspect of the humeral head as well. The distal clavicle/ AC joint appeared to have been resected, with the clavicular margin being well corticated.
48The ultrasound showed that the biceps tendon appeared to have become thinned and hypoechoic and was identified within the bicipital groove. There was bony irregularity at the insertion of the degenerate hypoechoic subscapularis tendon. There was more marked bony pitting and irregularity at the insertion of the supraspinatus tendon. The tendon was of heterogeneous echogenicity in keeping with tendinosis but there was no focal defect to suggest a significant tear was evident. The infraspinatus tendon appeared intact but a linear focus of calcification was noted within the tendon, with some surrounding hypoechogenicity indicative of localised associated tendinosis. There was no effusion in the glenohumeral joint. There was thickening of the subdeltoid bursa over the subscapularis tendon. On scanning during abduction of the arm, no bursal bunching was elicited.
49The plaintiff was referred again to Mr Douglas Li, shoulder surgeon, who he had a Telehealth consultation with on 16 August 2021.
50Mr Li prepared a further report to the plaintiff’s solicitors that day. The plaintiff had reportedly explained to Mr Li that following his surgery in March 2012, he had experienced a good outcome. By September 2012, he had no pain, with near full range of motion and good strength. He was able to resume his normal work as a truck driver. However, after a two-year period in which he was alright, the plaintiff had begun to notice some difficulties lifting, reaching and performing heavy repetitive duties.
51Mr Li reported that the plaintiff had noticed rapid deterioration in his left shoulder over the previous five years. He had been unable to work as a result. He opined the plaintiff had experienced a recurrent or new tear of the rotator cuff and he was developing secondary rotator cuff arthropathy. He recommended MRI and formal assessment face-to-face with a thorough physical examination to determine his status.
52On 27 September 2021, the plaintiff underwent an MRI scan and arthrogram of his left shoulder. The MRI scan results reported:
“- Markedly attenuated supraspinatus and infraspinatous (sic) tendons with prominent fraying. Moderate atrophy of the supraspinatus muscle. High-grade atrophy of the infraspinatous (sic) muscle.
- Advanced degenerative change/chondropathy affecting the glenohumeral joint.
- Intact biceps tenodesis.”
53On 4 October 2021, the plaintiff had a further Telehealth consultation with Mr Li. The plaintiff said Mr Li informed him his shoulder had deteriorated, degenerated and progressed to arthritis.
54In his report dated 4 October 2021, Mr Li stated the MRI showed the rotator cuff repair was thin but intact. There was advanced glenohumeral arthritis. Mr Li provided the plaintiff with further treatment options including a steroid injection, an arthroscopy or a total shoulder replacement.
55At the date of the hearing, the plaintiff did not wish to have further surgery. His cancer was in remission, and he was not having treatment. However, he understood, having had lymphoma in the past, that surgery carried with it increased risks for him.
Witnesses and evidence
56At the hearing, the plaintiff relied on the following evidence:
(a) an affidavit sworn by the plaintiff on 17 October 2019;
(b) a further affidavit sworn by the plaintiff on 4 May 2021;
(c) a further affidavit sworn by the plaintiff on 7 May 2021;
(d) a further affidavit sworn by the plaintiff on 26 May 2022;
(e) an affidavit sworn by his wife, Jacqueline Cameron (“Mrs Cameron”), on 4 May 2021;
(f) reports from his treating health practitioners including Mr Curley, Dr Li, Dr Tuladhar, Mr Phillips and Dr Das;
(g) radiology reports;
(h) reports from medico-legal experts, Mr Ash Chehata, orthopaedic and upper limb surgeon; Mr Ash Moaveni, orthopaedic surgeon; Dr James Rowe, specialist occupational physician, and Dr Jennifer Flynn, orthopaedic surgeon.
57The defendant relied upon:
(a) Form A, Prescribed Form of Application for Common Law Damages pursuant to s134AB(4) of the Accident Compensation Act 1985 and s328(4) of the Workplace Injury Rehabilitation and Compensation Act 2013;
(b) Draft Statement of Claim;
(c) Draft Defence;
(d) Worker’s Injury Claim Form;
(e) reports of Dr Umberto Boffa, occupational practitioner, dated 7 and 16 June 2012;
(f) resignation email from the plaintiff; and
(g) photograph obtained from Mrs Cameron’s Facebook page on 24 May 2021.
The Plaintiff’s medico-legal reports
Dr Jennifer Flynn
58On 18 December 2020, Dr Flynn assessed the plaintiff and subsequently prepared a medical report dated 29 January 2021. In her medical report, Dr Flynn noted the plaintiff had restricted movement in all directions with palpable crepitus. There was 10 degrees external rotation of the arm in an adducted position. There was weakness of the rotator cuff and pain with testing. Her examination of the plaintiff suggested glenohumeral arthritis.
59After reviewing the ultrasound of the left shoulder taken on 8 November 2011, the MRI scan of the left shoulder taken on 3 February 2012, as well as the reports of Mr Li dated 22 February, 29 March and 1 October 2019, Dr Flynn diagnosed a left shoulder supraspinatus and infraspinatus rotator cuff tear, requiring repair on 8 March 2012.
60Dr Flynn noted the plaintiff’s left shoulder had gradually deteriorated and the clinical examination suggested he had developed degenerative change of the shoulder. She considered he had left shoulder arthritis and recurrent cuff tears which would likely require further management in the future. She recommended further investigation in the form of an x-ray and ultrasound.
61Dr Flynn considered the plaintiff’s capacity for work requiring the use of the left upper limb was limited. Considering his age, location, education, skills and past work experience, she considered the plaintiff had a poor prospect of obtaining meaningful employment and realistically had no capacity for employment in a reliable, consistent and productive manner due to his left shoulder condition. She considered his incapacity in relation to his employment was permanent.
62In her supplementary report dated 11 August 2021, Dr Flynn considered the radiology reports of the left shoulder x-ray and ultrasound dated 9 June 2021 and also the medical report of Dr Tuladhar dated 30 May 2021.
63Dr Flynn opined that the imaging reports suggested degenerative change of the glenohumeral joint as well as degenerative changes of the rotator cuff tendons. She had not viewed the imaging but noted the findings of the reporting radiologist that there was humeral head elevation, joint space narrowing and marginal osteophytes. Dr Flynn considered this to be in keeping with her clinical examination of the plaintiff, his cuff weakness, crepitus and limitations with movement. She considered arthritis had developed subsequent to the plaintiff’s prior surgery.
64Dr Flynn recommended review by a treating orthopaedic surgeon.
65She also considered, given his age and the status of his left shoulder, it was likely the plaintiff would require further non-operative and operative management to address the developing degeneration of the shoulder joint. This might include analgesia, physiotherapy, viscosupplementation and corticosteroid injections, and surgical management in the form of arthroscopy and/or joint replacement surgery.
Mr Ash Chehata
66On 7 December 2021, Mr Chehata provided a medical report in relation to the plaintiff’s left shoulder following an examination on 6 December 2021.
67Mr Chehata took a history of the incident from the plaintiff and noted that the x-ray and ultrasound dated 9 June 2021 and an MRI scan taken on 27 September 2021 confirmed ongoing rotator cuff tearing and severe bone-on-bone arthritis with a highly abnormal glenohumeral joint.
68On clinical examination, the plaintiff had a well-healed lateral scar, consistent with a rotator cuff tear. He had marked wasting across the shoulder girdle and the supraspinatus and infraspinatus regions. His movement was restricted.
69His active range of movement to the left shoulder was flexion of 90 degrees, extension of 30 degrees, adduction of 30 degrees, abduction of 70-90 degrees, internal rotation of 30 degrees and external rotation of zero degrees. Mr Chehata opined that those findings were consistent with progressive and degenerative change in the plaintiff’s left shoulder.
70He diagnosed the plaintiff with an aggravation of previously asymptomatic degenerative change in the glenohumeral joint, coupled with a rotator cuff tear that required operative intervention. Since the surgery was undertaken, the plaintiff had developed progressive degenerative change and glenohumeral joint arthritis.
Mr Ash Moaveni
71Mr Moaveni prepared a report at the request of the defendant dated 5 May 2021. This followed an examination of the plaintiff the same day. The report was tendered by the plaintiff.
72Mr Moaveni noted the plaintiff’s difficulty communicating because of his deafness.
73On examination, Mr Moaveni identified a lateral incision on the plaintiff’s shoulder measuring 5 centimetres. It was consistent with a previous rotator cuff repair.
74He had flexion of his left shoulder of 70 degrees, extension of 30 degrees, external rotation of 0 degrees, internal rotation of 30 degrees, abduction of 70 degrees and adduction of 10 degrees. He also had reduced left-hand dexterity and strength in his left arm.
75Mr Moaveni opined the plaintiff had rotator cuff arthritis following a full-thickness rotator cuff tendon tear.
76He had no current or future work capacity and his prognosis in relation to his left shoulder was poor.
77The plaintiff’s shoulder joint had deteriorated since his injury in November 2011. He had no physical capacity for his pre-injury duties as a truck driver. Taking into account his left shoulder injury alone, he did not have capacity for suitable alternative duties. He was significantly limited in performing any tasks that involved lifting, pushing, pulling, twisting, reaching or static loading of the left upper extremity.
Dr James Rowe
78Dr Rowe prepared a report dated 20 January 2021 following examination of the plaintiff on 20 January 2021.
79On examination, the plaintiff had scars about his left upper arm and shoulder consistent with his previous surgeries. His left upper arm was wasted compared to his right arm. He demonstrated limited range of movement of the left shoulder. He had abduction of 80 degrees, adduction of 15 degrees, flexion of 70 degrees, extension of 20 degrees, internal rotation of 20 degrees and external rotation of 30 degrees. He had poor grip strength in his left hand. He had stiffness of movement of the cervical spine. His lateral rotation and flexion to the left side were restricted and uncomfortable.
80Dr Rowe diagnosed a torn rotator cuff, including a full-thickness tear in the supraspinatus, leading to secondary development of adhesive capsulitis.
81He considered the plaintiff was not fit to return to unrestricted pre-injury duties or employment of a physical nature. The restrictions needed to accommodate his left shoulder pain prevented him from performing any work involving heavy or repetitive lifting, carrying, forward reaching, pushing, pulling, driving heavy vehicles or using heavy tools and equipment. Based on his left shoulder injury alone, he had no capacity for suitable employment and that was likely to be a permanent situation.
82He had limited education and no formal qualifications. He had no experience in an office-based or sedentary environment and would likely require extensive re-training to return to the workforce. Given his age, he was not a realistic candidate for re-education or re-training.
83His prognosis was considered to be poor. There had been no real improvement in his left shoulder pain or range of motion since he ceased work in 2019, and future improvement was considered to be unlikely.
The Defendant’s medico-legal reports
Dr Umberto Boffa
84Dr Boffa prepared two reports, dated 7 and 16 June 2012 respectively.
85In his first report, Dr Boffa considered the plaintiff’s work history, as well as the history of his injury. He noted that Mr Li had performed an open acromioclavicular joint and bursa excision with primary repair of the supraspinatus tear. The plaintiff’s condition had improved since that operation, and he was reported to have been sleeping better and to be taking no analgesic medication.
86Dr Boffa identified the plaintiff had returned to work three weeks before the examination and was working four-hour shifts five days a week. He was performing home exercises and was attending physiotherapy three times a week.
87On examination, the plaintiff had a well healed 6-centimetre surgical incision over the lateral aspect of his left shoulder. He had abduction of 70 degrees with a positive hunch sign indicating restriction at the glenohumeral joint with much of the movement being at the scapulothoracic joint. Flexion was restricted to 60 degrees. Internal rotation was reduced, with the tip of the thumb reaching to the lumbosacral joint posteriorly. Adduction was normal. There was reduction in power in all four rotator cuff muscles.
88Dr Boffa opined the plaintiff was post left rotator cuff repair and decompressive surgery caused by a fall at work.
89The plaintiff had a current work capacity and had returned to modified duties and reduced hours. However, Dr Boffa considered he could not return to his pre-injury driving duties or hours.
90In his second report, Dr Boffa opined the plaintiff had suffered a full-thickness supraspinatus tear with retraction that required repair. It was noted the plaintiff would be ready to resume driving in a few more weeks pending his surgeon’s approval.
Submissions
Plaintiff’s submissions
91The plaintiff made the following submissions.
92First, it was submitted he suffered a compensable injury. Namely, markedly attenuated supraspinatus tendons with prominent fraying; moderate atrophy of the supraspinatus muscle and high-grade atrophy of the infraspinatus muscle; advanced degenerative change and chondropathy affecting the glenohumeral joint; tenodesis; a rotator cuff tear which had been repaired and was intact but which had accelerated the degenerative process in the plaintiff’s shoulder, resulting in arthritis. These injuries were supported by the opinions of Mr Li, Dr Flynn and Mr Chehata.
93Second, the plaintiff’s prognosis was “bleak”.
94He would require further non-operative and operative treatment in the form of steroid injections for short-term relief, arthroscopic debridement for medium-term relief and a total shoulder replacement in the long term to provide satisfactory range of motion. However, because of his cancer, he would be unable to undergo a shoulder replacement and could be forced, out of necessity, to have a reverse shoulder replacement.
95Third, the plaintiff’s account of the progress of his left shoulder injury should be accepted. He gave a clear account in his affidavit of how his injury occurred. His account was not challenged.
96Further, his account of the incident on 3 April 2018 should likewise be accepted. There was a spike of pain on that date, but his left shoulder improved and his pain subsided to the level it had been. The defendant’s submission that he sustained an aggravation injury should not be accepted. It disregarded the nature and extent of the plaintiff’s pre-existing symptoms and pain.
97The plaintiff was a credible and reliable witness. He was under stress while giving evidence due to his hearing impairment. His accounts to medical practitioners of his injury, pain and restriction were consistent and although the video surveillance footage was not helpful, none of the medical practitioners were concerned about it. In any event, the footage showed only very low-level gardening activity by the plaintiff.
98Fourth, the constellation of consequences suffered by the plaintiff following his left shoulder injury in 2011, were at least very considerable. He had lost the ability to work in paid employment and had no capacity to return to his pre-injury duties or other suitable employment. His physical capabilities had been adversely impacted. Movement and use of his left arm was restricted and he had increased difficulty lifting items away from his body. His left shoulder felt weaker than his right. He complained of pain on a daily basis. His sleep had been impacted. He took over-the-counter medication – six Panadol Osteo and Nurofen tablets – each day and used heat packs and massage.
99The plaintiff had previously enjoyed various sports including football, cricket, swimming, golf and lifting weights. While football and cricket were no longer relevant, he could no longer engage in swimming, golf and lifting weights.
100The plaintiff’s ability to play and interact with his grandchildren had been restricted.
101His ability to undertake home maintenance and handyman activities has been impacted and he could not do renovation work or house painting.
102Finally, the plaintiff was a stoic man. It was submitted he should not be penalised by being treated less favourably than another person of less fortitude, simply because he was willing to endure pain to remain active. He had significant pathology in his shoulder and, to his credit, he nevertheless got back to work. Even as his symptoms had worsened, he continued to grit his teeth and get on with things.
Defendant’s submissions
103The defendant submitted, that the plaintiff had sustained an injury to his left shoulder, but the injury had recovered and he had returned to work in September 2012. This conclusion was consistent with the plaintiff’s evidence. It was also consistent with the contemporaneous medical evidence that the plaintiff sought and obtained no medical treatment for his left shoulder from December 2012 until 4 June 2021 when he consulted Dr Das at the Central Medical Group in Wodonga, save for consultations on 3 and 4 April 2018 recorded in the Rowville Medical Centre notes. This was despite the plaintiff having attended the Central Medical Group in Wodonga on sixteen earlier occasions.
104Second, the consequences to the plaintiff did not exceed the threshold for the plaintiff to establish he had suffered a serious injury. They were not at least very considerable or even “marked” or “significant”.
105The plaintiff did not suffer pain to the extent he claimed. The only reason he attended the Central Medical Group in Wodonga on 4 June 2021 was at the direction of the Court to get imaging of his shoulder done. It was not because he was in pain.
106If, contrary to that submission, the plaintiff had ongoing pain at the date of the hearing, the plaintiff’s affidavit was incorrect, or, if not incorrect, the plaintiff’s claimed pain and restriction were exaggerated. Apart from massages, the only medication the plaintiff was taking was over-the-counter-medication, namely Panadol or Nurofen. He did not require prescription painkilling drugs which tended against a conclusion he was suffering from a high level of pain.
107Further, if the plaintiff was found to have been experiencing pain, the pain was due, at least in part, to the injury on 3 April 2018 which was an aggravation of the pre-existing injury to his left shoulder. The plaintiff could not aggregate the pain from both injuries. To discharge his burden of proof, it was incumbent on the plaintiff to disentangle what pain arose from the aggravation injury and he had failed to do so.
108Finally, the video surveillance footage cast considerable doubt over the plaintiff’s claimed social and domestic consequences. It was submitted some things seen on the film were “almost fanciful” when considered in light of his claim.
What injury did the Plaintiff suffer on 5 November 2011?
109In the operation report dated 8 March 2012, Mr Li identified a large and retracted left rotator cuff tear with impingement and subacromial bursitis. There was a large subacromial spur impinging upon the rotator cuff. There was instability in the longhead of the left shoulder biceps and left shoulder acromioclavicular joint osteoarthritis. Surgery was performed and the plaintiff’s shoulder reportedly made good progress.
110By the time an x-ray of the plaintiff’s left shoulder was taken on 9 June 2021, the radiologist reported there was likely a chronic complete tear of the rotator cuff as well as some lobulated new bone formation over the superior aspect of the humeral head.
111An ultrasound taken the same day showed the biceps tendon had thinned and was identified within the bicipital groove. There was marked bony pitting and irregularity at the insertion of the supraspinatus tendon. There was localised associated tendinosis and thickening of the subdeltoid bursa over the subscapularis tendon.
112Upon further review by Mr Li on 16 August 2021, Mr Li was of the view the plaintiff had experienced a recurrent or new tear of the rotator cuff and he was developing secondary rotator cuff arthropathy.
113An MRI scan and arthrogram of the plaintiff’s left shoulder showed markedly attenuated supraspinatus and infraspinatus tendons with prominent fraying. There was moderate atrophy of the supraspinatus muscle and high-grade atrophy of the infraspinatus muscle. There was also advanced degenerative change affecting the glenohumeral joint.
114Dr Flynn diagnosed a left shoulder supraspinatus and infraspinatus rotator cuff tear and left shoulder arthritis. There was degenerative change of the glenohumeral joint and of the rotator cuff tendons.
115Mr Chehata’s opinion was the plaintiff suffered ongoing rotator cuff tearing and severe bone-on-bone arthritis with a highly abnormal glenohumeral joint which was said to be an aggravation of previously asymptomatic degenerative change in the glenohumeral joint.
116Mr Moaveni considered the plaintiff had rotator cuff arthritis following a rotator cuff tendon tear. His shoulder joint had deteriorated.
117Dr Rowe diagnosed a torn rotator cuff, including a full-thickness tear in the supraspinatus, leading to secondary development of adhesive capsulitis.
118Mr Boffa considered the plaintiff had a full-thickness supraspinatus tear with retraction.
119There was no dispute the plaintiff suffered a left shoulder injury. Having considered the medical evidence, I find that on 5 November 2011, the plaintiff sustained an injury to his left shoulder, being a chronic complete tear of the rotator cuff resulting in repair surgery having been undertaken; development of bony pitting and irregularity at the insertion of the supraspinatus tendon with localised associated tendinosis and thickening of the subdeltoid bursa over the scapularis tendon; moderate atrophy of the supraspinatus muscle and high-grade atrophy of the infraspinatus muscle; advanced degenerative change affecting the glenohumeral joint and rotator cuff tendons, resulting in rotator cuff and glenohumeral joint arthritis.
120If there was any aggravation of pre-existing degenerative change when the plaintiff was injured on 5 November 2011, because the pre-existing degenerative change was previously asymptomatic, all the plaintiff’s pain and restriction as at 5 November 2011 arose because of the injury he suffered as a result of the fall that day.
Was the injury on 3 April 2018 an aggravation injury?
121Generally, if a plaintiff suffers an injury, and there is a subsequent injury which is also producing pain and suffering consequences, it is necessary for the Court to decide whether the consequences of the original injury are “more than significant or marked, and … at least very considerable”.[3] For that purpose, it is necessary to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.[4]
[3] Section 134AB(38) of the Act
[4] Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67, paragraphs [1]-[2]
122As already detailed, the defendant submitted the plaintiff sustained an aggravation injury on 3 April 2018 which was the cause of at least some of his left shoulder pain. It was submitted that the consequences of both the injury on 5 November 2011 and the injury on 3 April 2018 could not be aggregated and when the consequences of the injury on 3 April 2018 were excluded, the plaintiff had not suffered a serious injury.
123The clinical notes from the Rowville Central Clinic showed the plaintiff consulted Dr Enas Makar, general practitioner, on 3 April 2018 in relation to a sore left shoulder following a collision between two electric pallet jacks the previous Saturday. They also recorded:
“Feels like arthritic pain
Had left shoulder reconstruction in 2012
O/E
no tenderness
restricted abduction and forward flexion (this was the restriction he had after the surgery).”
124A further entry on 4 April 2018 said the plaintiff’s “left shoulder is better”.
125When cross-examined about the injury sustained on 3 April 2018, the plaintiff said his left shoulder returned to the state it was before the incident and he was able to return to his normal duties the next day. He said his pain continued after that consultation up to the date of the hearing.
126Based on the clinical entries, I am not satisfied that the plaintiff sustained an aggravation injury. The entry of 3 April 2018 refers to arthritic pain without tenderness. This suggests the plaintiff was suffering from the effects of his earlier left shoulder surgery. Even if I am wrong and the plaintiff did suffer some form of further injury to his left shoulder on 3 April 2018, I find any additional pain and disability as a result of that incident, beyond what the plaintiff was already suffering, resolved by 4 April 2018. It was not productive of any of the consequences.
Did the Plaintiff sustain any further shoulder injuries?
127The plaintiff said in his affidavit sworn 7 May 2021, that he had to attend The Royal Melbourne Hospital in February 2019 following an incident when he was struck by a pallet. The plaintiff’s evidence was he did not suffer any new injury to his left shoulder. He was not challenged about this in cross-examination and other than the injury on 3 April 2018, the defendant did not submit the plaintiff suffered any further injury to his left shoulder.
128Based on the x-ray and ultrasound taken on 9 June 2021 and Mr Li’s subsequent reports dated 16 August and 4 October 2021, I find the plaintiff had a left rotator cuff tear which had been surgically repaired. Although, the x-ray of 9 June 2021 suggested there was a complete tear of the rotator cuff, based on Mr Li’s report dated 4 October 2021, the rotator cuff repair was thin but intact. Mr Chehata suggested there was ongoing rotator cuff tearing and severe bone-on-bone arthritis. I prefer the evidence of Mr Li, the plaintiff’s treating orthopaedic surgeon, that the rotator cuff repair was thin but remained intact. However, even if there was some degree of further rotator cuff tearing, it is likely that was a consequence of the progression of the deterioration of the plaintiff’s left shoulder over time, consequent upon the injury on 5 November 2011, rather than as a result of a new injury.
129There was consequently no further subsequent injury sustained by the plaintiff beyond the original left shoulder injury which resulted from the fall on 5 November 2011, that could explain the plaintiff’s condition at trial.
Conclusion on compensable injury
130I find the plaintiff sustained a compensable injury to his left shoulder on 5 November 2011. This was the source of his pain and restriction. The injury was a complete tear of the rotator cuff which required surgical repair.
131There was bony pitting and irregularity at the insertion of the supraspinatus tendon with a markedly attenuated supraspinatus tendon with prominent fraying and localised associated tendinosis. There was thickening of the subdeltoid bursa over the scapularis tendon.
132The biceps tendon had thinned but was intact.
133There was bony irregularity at the insertion of the degenerate hypoechoic subscapularis tendon. The subscapularis tendon was of heterogenous echogenicity in keeping with tendinosis.
134The infraspinatus tendon had a linear focus of calcification but was intact. It was markedly attenuated with prominent fraying. There was likely associated tendinosis. There was thickening of the subdeltoid bursa over the subscapularis tendon.
135There was calcification over the superolateral aspect of the humeral head and also between the humeral head and the acromion. The humeral head was elevated relative to the acromion with joint space narrowing and inferior marginal osteophytosis in keeping with osteoarthritic change.
136There was moderate atrophy of the supraspinatus muscle and high-grade atrophy of the infraspinatus muscle. There was also advanced degenerative change affecting the glenohumeral joint and rotator cuff tendons, resulting in rotator cuff and glenohumeral joint arthritis.
Permanence
137Dr Flynn opined that the plaintiff’s prognosis would be guarded. She considered it to be unlikely he would return to his pre-injury status. His employment incapacity was permanent. Her opinion was the plaintiff would continue to experience pain and functional limitation. He had left shoulder arthritis and recurrent cuff tears which would likely require further management in the future.
138Mr Chehata opined the restrictions imposed on the plaintiff by reason of his left shoulder injury were permanent. His ability to perform his pre-injury employment had been restricted. He had ongoing pain and an inability to sleep on his left side, and progressive bone-on-bone changes. His prognosis was considered to be poor. His history of cancer, although in remission, meant operative intervention with a joint replacement would be unlikely. However, because of the plaintiff’s history of progressive degenerative change and high-grade atrophy of the infraspinatus, and previous repair, a standard glenohumeral joint replacement would have been unlikely to be effective in any event. Mr Chehata opined the plaintiff may be a candidate for a reverse shoulder replacement, but at a future time when his pain levels had become severe, and he was going to be unable to utilise his shoulder.
139Dr Rowe noted there had been no real improvement in the plaintiff’s condition since he ceased working in 2019. He considered the plaintiff had permanent restriction from activities involving pushing, pulling or lifting; repetitive pushing, pulling or lifting; overhead activities; forward reaching; gripping, holding and carrying, and prolonged driving or operating of heavy equipment/vehicles. The plaintiff was not fit to return to unrestricted pre-injury duties or employment of a physical nature. Based on his left shoulder injury alone, he had no capacity for suitable employment. That situation was likely to be permanent.
140Mr Moaveni opined the plaintiff had no current work capacity. That would continue indefinitely. The plaintiff’s prognosis in relation to his left shoulder was considered to be poor.
141Having considered the medical opinions, I accept the plaintiff’s left shoulder injury is permanent, in the sense it will probably persist and there will be no significant improvement over time.[5]
[5] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [19]
Credit
142The plaintiff’s credit was challenged on four principal grounds. First, his account to Mr Li that he experienced a rapid deterioration in his left shoulder from 2014 to 2019 was incorrect given his lack of complaint about his shoulder in the medical records. Second, the reason the plaintiff told Dr Flynn his hearing was preventing him finding work, was because it was his hearing and not his left shoulder, which was preventing him from obtaining employment. Third, he told Mr Chehata he ceased work because the defendant lost the contract and not because his shoulder was injured. Fourth, the video surveillance footage demonstrated that, contrary to the plaintiff’s claimed disability, he retained the capacity to use his left shoulder.
143In relation to whether the plaintiff’s account to Mr Li that he experienced a rapid deterioration in his left shoulder from 2014 to 2019 was correct, in his report to the plaintiff’s solicitors dated 16 August 2021, Mr Li identified that “over the past five years … [the plaintiff] has noticed rapid deterioration and he has been unable to work as a result”. His opinion was the plaintiff had likely experienced a recurrent or new tear of the rotator cuff and was developing secondary rotator cuff arthropathy. It was suggested to the plaintiff that there were very few notes of medical consultations in relation to his left shoulder from 2014 to 2019. Further, that from May 2019 when the plaintiff moved to Baranduda, until 4 June 2021 when he consulted Dr Das at the Central Medical Group in Wodonga, he did not seek medical treatment for his left shoulder injury from his general practitioner in Wodonga, despite having attended the doctor sixteen times previously. Because there were no medical notes of complaint about left shoulder pain and restriction, this tended to the conclusion the plaintiff did not have significant problems with his left shoulder.
144The plaintiff agreed that other than the attendance at the Rowville Central Clinic on 3 April 2018, he had not sought medical treatment in relation to his left shoulder after December 2012 until 4 June 2021. He explained that after he got back to work, the pain from his left shoulder was about two-and-a-half out of ten. He continued to have pain in his dominant left shoulder and restrictions in pushing, pulling and lifting. To relieve his pain, he sought massages fortnightly at shopping centres near to where he lived. This provided him with temporary pain relief, lasting generally about 24 hours. He also took medication to assist with the pain, if warranted. Depending on his activities at work, this was every second day. As the years went by, the plaintiff said, “the pain increased dramatically” to eight out of ten. He explained, “I just gritted my teeth and got on with the job”. He pushed through pain. “That’s the only way I get – the only way I get through life: grit my teeth and get on with it.” He disagreed he had not had any significant problems with his left shoulder.
145I accept the plaintiff did not complain to a doctor, physiotherapist or medical specialist about his left shoulder injury between the time he returned to work in 2012 and 4 June 2021, other than in relation to the incident on 3 April 2018. This was notwithstanding he had attended the Central Medical Group, Wodonga, up to sixteen times in the period from 10 July 2019 and 4 June 2021. However, having observed the plaintiff give evidence, I formed the view he was an honest person. He was not exaggerating his claimed levels of pain and restriction. On the contrary, it appeared he was doing the best he could to explain his injury and how it had impacted him. I accept his evidence that after his left shoulder injury, he pushed through pain and endeavoured to get on with his life as best he could. In my view, he displayed considerable stoicism.
146Having considered the plaintiff’s evidence, while it is true that there were very few medical consultation notes in relation to the pain and disability the plaintiff said he was experiencing with respect to his left shoulder, I am not prepared to conclude the plaintiff was not credible or was experiencing no pain. There was an objective basis for the plaintiff’s persistent pain as demonstrated by the radiology and as noted by the plaintiff’s treating doctors. Events on 3 April 2018 did not provide an explanation for his ongoing pain. There was no suggestion in the medical records that any additional pain the plaintiff suffered as a result of the incident on 3 April 2018 persisted beyond the following day. Further, the lack of medical treatment or prescription medication by the plaintiff was explained by his stoic nature.
147Second, the plaintiff was also cross-examined about his medical examination by Dr Flynn. It was suggested to him that the reason he told Dr Flynn his hearing was preventing him finding work, was because it was his hearing, not his left shoulder, which was in fact preventing him obtaining employment. Again, the plaintiff disagreed.
148The plaintiff explained he had communication barriers and experienced difficulties using his left arm. Both issues posed difficulties for him in being able to work independently. The plaintiff explained he failed the medical because of his hearing. But he also volunteered that no other parts of his body were tested. He did not suggest that had his ability to use his left arm been tested, he would have been capable of working. On the contrary, he said if he had been offered the job, he would not have been able to accept it anyway because he would not have been able to do it because of his left arm. He was then asked, if that evidence was correct, why he applied for the job in the first place. He replied, “Because I wanted work”.
149I accept he gave evidence honestly. His answers were consistent with the hours he had worked over many decades, about which he was not challenged. I do not consider his credit was impacted by this evidence.
150Third, it was put to the plaintiff that he told Mr Chehata he ceased work because the defendant lost the contract and not because his shoulder was injured. The plaintiff agreed he ceased work because the defendant lost the contract but also explained it was because his shoulder had deteriorated. I do not consider this evidence adversely impacted the plaintiff’s credit. It is reasonable that there might have been several reasons which contributed to why he ceased work.
151Finally, video surveillance footage of the plaintiff taken on 4 August 2020 was shown and the plaintiff was cross-examined about it. In the surveillance footage the plaintiff was observed pushing down soil, jabbing a rake and sweeping his garden and pathway with two hands. When he was asked about the video surveillance footage, he agreed he was performing those movements but said they caused him pain. He said, “I was always in pain” and “[l]ike, all the time, in pain”.
152Similarly, the plaintiff was seen lifting a bag of gardening mulch with both arms and lifting another bag of soil onto his left shoulder. The plaintiff’s explanation for both these actions was “it had to be done”. He explained he was in pain and he could not lift anything with his right shoulder because he was “useless on my right side”. He was left-hand dominant in all respects and had always used his left hand for everything. He could not have used his left hand to throw the bag onto his right shoulder because it would have caused pain in his left shoulder and down his arm into his fingertips.
153He was also later observed carrying wood, sweeping and using a hose. The plaintiff was asked how he carried wood before he was injured. He said he swapped the wood from his left to his right arms. He said he did that in the video, but he could not do it today. Nor could he carry firewood under his left arm, because he has pain in his left shoulder and left arm.
154When it was put to the plaintiff that he was exaggerating the extent of his injuries, he refuted this. He explained he could not put a bag onto his right shoulder.
155The plaintiff said he could have continued gardening the next day but he would have been in pain. He has now modified the way he gardens. The bulk of the work he now gets done. He said, “we have a big block, I used to be able to do it front and the back in two or three hours; now it takes me two days. … Because I’m in pain too much to continue through the job. I have to rest.”
156He said he has not altered the way he used a broom or rake since he suffered the injury.
157Having watched the video footage, I formed the view that the surveillance footage did not adversely impact the plaintiff’s credit. The plaintiff had some use of his left shoulder, but it was minimal and for the most part did not involve the plaintiff reaching overhead or outstretching his arm. The objective medical evidence supported the view the plaintiff’s condition deteriorated over time. It was therefore understandable his pain and levels of restriction increased correspondingly. For instance, Mr Moaveni noted the plaintiff had a reduced carrying load with his arm. Further, because the plaintiff was stoic, his desire to continue to garden in the way he did before he was injured was reasonable.
158Even if I am incorrect in the view I have formed about the plaintiff’s credit, an adverse credit finding does not automatically mean I must reject the plaintiff’s claim to have suffered a serious injury.
Impairment consequences
159Whether the compensable injury identified by the plaintiff is a “serious injury” depends upon whether the impairment consequences of the injury, either in respect of pain and suffering or loss of earning capacity, can be fairly described as being more than “significant” or “marked” and “at least very considerable” when compared to other cases in the range of possible impairments or losses.
160In assessing the seriousness of the claimed impairment consequences, I am required to bring to account the relevant circumstances personal to the plaintiff and then make a value judgement in accordance with the principles enunciated in Humphries and Anor v Poljak.[6] I am also required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[7]
[6] [1992] 2 VR 129 at 140 (per Crockett and Southwell JJ)
[7]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [27] (Ashley JA); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [44] (Ashley JA and Beach AJA); Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12 at paragraph [77] (Ross AJA), quoting Dwyer at paragraph [27]
161The assessment of serious injury must be made at the time that the application is heard by the Court. Consequently, it is necessary that I make an assessment of the plaintiff’s current impairment consequences.
162Where a plaintiff is injured on several discrete occasions, components of the injury on each occasion must be identified and cannot be aggregated, even if caused to one body part across several incidents. The plaintiff, in those circumstances, must identify the extent of any aggravation arising from a claimed injury and, in accordance with Petkovski v Galletti,[8] demonstrate that the aggravation of the pre-existing injury is itself a “serious injury”.
[8] [1994] 1 VR 436
163As I have identified already, I do not find that the injury on 3 April 2018 was an aggravation injury. Alternatively, if it was, I find that the consequences of the injury on 3 April 2018 were minimal and resolved the following day. In those circumstances, I am satisfied that all the impairment consequences about which the plaintiff complains, were the result of the injury he sustained to his left shoulder on 5 November 2011.
Pain
164In his first affidavit, the plaintiff said his left shoulder continued to cause him pain and he had restricted movement. At rest his shoulder pain was alright, but he experienced pain with activity involving the use of his left arm, particularly if he reached out or above shoulder height. He felt pain in his left shoulder lying in bed at night.
165In his second affidavit, the plaintiff explained that he continued to suffer the same pain and restrictions as in his first affidavit.
166In his final affidavit, the plaintiff said he had pain in his left shoulder at all times which worsened on performing activities such as lifting, pushing, pulling and reaching. The pain had continued to worsen and was severe in cold weather. Movement of his left shoulder could be restricted and he had difficulty reaching his arm above shoulder height and behind his back. His left shoulder felt weaker than his right.
167He felt down about the constant pain he had in his left shoulder and the impact the injury had on his life. He was often irritable and frustrated.
168Mrs Cameron also provided an affidavit. In that affidavit, she explained she saw on a daily basis how much pain the plaintiff was in and how restricted he had become because of his left shoulder injury. The plaintiff was depressed he was unable to work, was in constant pain and was restricted.
169In his report to the plaintiff’s solicitors dated 16 August 2021, Mr Li identified that “over the past five years … [the plaintiff] has noticed rapid deterioration and has been unable to work as a result”. He experienced constant pain, which was particularly severe when lifting and reaching, especially overhead. He had diminished strength with activities at shoulder level or above or when his arms were outstretched away from his body.
170In her first report dated 29 January 2021, Dr Flynn identified that the plaintiff described ongoing left shoulder discomfort which worsened at night and disrupted his sleep.
171Mr Chehata, in his report, noted the plaintiff continued to suffer ongoing restriction in range of movement. Due to the progressive degenerative change in his left shoulder, the plaintiff had lost overhead, internal and external rotation and was wary of overuse.
172Dr Rowe opined the plaintiff continued to suffer pain and lacked mobility in his left shoulder. He had numbness and tingling in his left arm and hand. His grip strength had reduced. His pain was aggravated by activity, particularly any activity which involved reaching, lifting and elevation of the left arm above shoulder height.
173In his report, Mr Moaveni noted that upon examination, the plaintiff complained of pain and limited function of his right shoulder.[9] The plaintiff reported increasing pain and loss of left shoulder function and movement since his injury. The pain presented over the anterior aspect of the glenohumeral joint and was mild at rest. The pain increased to a constant dull ache after any loads or repeated movements of the left arm.
[9]Mr Moaveni’s report refers to his right shoulder. It is likely this is an error and should properly be a reference to the left shoulder.
174Long drives with his hands on the steering wheel aggravated the plaintiff’s anterior shoulder pain. It was reported many activities he could previously do had become painful and restricted.
175The plaintiff’s pain was noted to be worse at night.
176In re-examination, the plaintiff said the pain had worsened over time. He said his current pain was at seven to eight out of ten.
177I have considered the descriptions of the plaintiff’s pain provided by him and his wife, together with the medical opinions and objective medical findings. I accept the plaintiff’s account of his pain and restriction. It is consistent with the severity of his injury and was not challenged to any significant degree by the independent medical experts.
178Further, when the effects of stoicism are taken into account,[10] his injury is no less serious merely because he has been prepared to endure pain to maintain a level of function and to endeavour to return to pre-injury life.
[10] Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [48]
179I am satisfied the plaintiff’s pain is constant. How it is experienced varies. It is at least a dull ache but has got worse over time and can be significant. It is worse at night and is aggravated by activity and the cold. There is also numbness and tingling in the plaintiff’s left arm and hand and his grip strength has reduced.
Medication and medical treatment
180The plaintiff said in his first affidavit that he did not like taking medication for his left shoulder. He reported having taken Panadol or Nurofen at least once a week, sometimes more, depending on how much he had used his left shoulder.
181He also had weekly massage treatment on his left shoulder at the local shopping centre.
182In his second affidavit, the plaintiff identified he was taking more medication than he had been previously: six Panadol or six Aspro Clear per day. He also rubbed Deep Heat into his left shoulder about once every second day.
183In his final affidavit, the plaintiff said to manage his left shoulder pain he took up to six Panadol Osteo or Nurofen tablets per day. He also used heat packs and obtained massages from the local shopping centre one to two times per fortnight. This provided him with mild, short-term pain relief.
184Mr Chehata noted in his report the plaintiff was taking Panadol and Nurofen and was having regular weekly massages. He was also using heat packs.
185Dr Rowe observed in his report that the plaintiff was under the care of his general practitioner, Dr Trotter. Dr Trotter provided him with certificates and prescriptions. The plaintiff was somewhat reluctant to take medication but took occasional Panadol or Nurofen when required. He also had regular massages.
186Mr Moaveni also noted the plaintiff relied on analgesics such as Panadol and Nurofen to manage pain from his left shoulder injury. Higher levels of analgesic medication had been necessary to manage his pain as the years since his accident had progressed. The plaintiff was taking Panadol and Nurofen to manage his pain and he found he required these on a daily basis. He was also receiving weekly massage treatment to assist him to maintain movement of his left shoulder.
187Dr Boffa noted in his first report that when the plaintiff was taking anti-inflammatories, they caused fluid retention.
188The plaintiff said in re-examination he got temporary relief lasting about 24 hours from receiving massages. He also said he constantly took Panadol, Nurofen and Aspro Clear. He had taken six on the day of the hearing.
189The plaintiff confirmed that he does not wish to undergo steroid injections and wishes to avoid further surgery if possible. He has had lymphoma in the past and surgery poses risks for him.
190I accept the plaintiff does not take prescription medication to alleviate his pain but that does not determine that his pain is not significant. In this instance, because Dr Boffa noted in his first report that when the plaintiff was taking anti-inflammatories, they caused fluid retention, I do not consider the lack of prescription medication to be an impediment to the plaintiff’s claim.
Sleep
191In his first affidavit, the plaintiff says he felt pain lying in bed at night.
192In his final affidavit, the plaintiff said his sleep continued to be impacted by his left shoulder injury. The pain worsened at night, and he woke with severe pain if he rolled onto his left shoulder.
193The plaintiff’s wife said in her affidavit that the plaintiff’s sleep was disturbed. He tossed and turned in bed at night, trying to get comfortable, and complained of pain in his left shoulder.
194Mr Li, in his report dated 16 August 2021, reported that the plaintiff experienced pain which woke him at night.
195Dr Flynn noted the plaintiff’s pain worsened at night and interrupted his sleep.
196Mr Chehata noted in his report that the plaintiff was unable to lie on his left side and that night pain was his most significant problem.
197Dr Rowe noted in his report that the plaintiff’s pain affected his sleep. He was unable to sleep comfortably on his left side.
198Mr Moaveni recorded in his report that the plaintiff’s pain was worst at night. He was unable to lie comfortably on his left shoulder to sleep. His sleep was constantly interrupted due to shoulder pain and he frequently woke at night due to shoulder pain.
199I accept that the plaintiff suffers from disturbed sleep as a consequence of his left shoulder injury. He is unable to lie on his left side and he is affected by pain.
Employment
200In his first affidavit, the plaintiff described how he had been working since he was fifteen or sixteen-years-old and how he had always prided himself on being a hard worker. He said he had not planned to retire until he was about seventy years old (at the time he swore his first affidavit he was sixty-three-years-old).
201The plaintiff explained he moved to Baranduda, in part, because he thought he would be able to get work as a truck driver. However, he had not been able to find work, partly he thought, due to his injury.
202He believed it would be difficult for him to find alternative future employment.
203In his second affidavit, the plaintiff explained he had not been able to return to work at all since his first affidavit. He had looked for a number of jobs but had been unsuccessful because of his left shoulder injury and his hearing difficulties.
204He explained in his third affidavit, that apart from the problems with his left shoulder, he could no longer work as a truck driver because of the problems with his left eye and hearing.
205In her affidavit, Mrs Cameron described how the plaintiff had always worked and enjoyed working. She observed he was upset at not being able to work because of his shoulder injury.
206Dr Flynn considered the plaintiff had poor prospects of obtaining meaningful employment and realistically had no capacity for employment in a reliable, consistent and productive manner due to his left shoulder condition. She considered his incapacity in relation to his employment was permanent.
207Dr Rowe reported the plaintiff attempted to find employment after his relocation to regional Victoria but found his shoulder injury and deafness caused him difficulties. He was not currently working and was not fit to return to unrestricted pre-injury duties or employment of a physical nature. Based on his left shoulder injury alone, he would permanently have no capacity for suitable employment.
208The plaintiff was cross-examined about the number of hours he had told various doctors he worked. He agreed he told some doctors that before he injured his left shoulder, he worked 60 to 65 hours per week, six days a week. He said he was not allowed to work seven days a week.
209The plaintiff said in re-examination he did not think he had capacity now to drive trucks. The role of truck driver would have required him to perform tasks involving the use of his left shoulder, such as unhooking the semi-trailer or taking off the air lines, the brake lines and the power. Because those tasks would have required him to use his left shoulder, he did not think he could perform those duties.
210I accept that the plaintiff’s inability to continue working as a truck driver was a very considerable consequence for him. It was a job he enjoyed and which he had performed for many years. More than that though, in addition to an inability to work in his pre-injury role, the plaintiff has lost the ability to work in other suitable employment. The inability to pursue a career he enjoyed and to earn an income is a very significant consequence.
Activities of daily living
211In his first affidavit, the plaintiff identified he had difficulties getting dressed and, in particular, putting on jackets and jumpers. He confirmed in his second affidavit he had difficulty getting himself dressed. The plaintiff’s left shoulder movement was restricted.
212In his final affidavit, he said he was restricted in lifting his left shoulder. He had trouble reaching above shoulder height and behind his back, and experienced difficulty dressing. His wife assisted him. He found it hard to lift items at a distance from his body, such as getting groceries out of the boot of the car.
213The plaintiff’s wife confirmed in her affidavit that she assisted the plaintiff to get dressed and helped him put on jackets and jumpers.
214Mr Li also noted that the plaintiff spoke of difficulty with simple activities of daily living such as washing himself and getting dressed, as well as doing domestic duties around the house.
215Dr Flynn noted the plaintiff had pain and difficulty undertaking a variety of activities of daily living, household tasks and home maintenance. He had difficulty dressing. His movement was poor and he had difficulty reaching overhead and rotating and lifting his left arm. He received assistance from his wife.
216Mr Chehata noted the plaintiff had lost most of his independence. He struggled to dress and put his jumper and pants on. He had difficulty changing jackets and was reliant on his wife to perform most household chores.
217Dr Rowe identified the trouble the plaintiff had dressing himself, particularly when putting on upper garments that needed to be pulled over his head.
218Mr Moaveni, in his report, noted the plaintiff had trouble dressing, especially with tasks that required reaching overhead, such as putting on jumpers. His evidence, which he maintained in cross-examination, was that his wife helped him put on jackets and get dressed.
219He also had difficulty with household chores and home maintenance. Shopping and cooking were difficult, and he had a reduced carrying load with his left arm.
220The plaintiff said in cross-examination that he experienced great pain when undertaking everyday procedures, especially those that involved lifting his left arm above shoulder height. He agreed he told Mr Chehata he had “great difficulty doing jobs around the house that require my shoulder to go high, reach up”. He said, “I have great pain in doing normal, everyday pursuits as a house home. Yes, I have trouble, yes.” He said he gave a similar account to Mr Moaveni.
Home maintenance and gardening
221In his first affidavit, the plaintiff said that prior to injuring his shoulder, he enjoyed doing handyman jobs and renovation work around the house. He cleaned gutters and hung pictures. He also did the interior painting. After his injury, he was restricted around the house, particularly in relation to any task involving use of his left shoulder above shoulder height. He no longer did the interior painting and had to pay someone to do that work for him.
222He also previously did the gardening. He could still garden but was limited by pain. He was restricted in what he could do and had difficulty with tasks such as pruning, digging and chopping wood.
223In his second affidavit, the plaintiff said he continued to be restricted in relation to performing handyman jobs around the house. He was unable to undertake interior painting and was still restricted in performing gardening work. He remained unable to chop wood.
224In his final affidavit, the plaintiff said he was limited in his capacity to perform home maintenance and handyman tasks such as cleaning out gutters, painting, chopping wood and gardening.
225The plaintiff’s wife confirmed that prior to his injury, the plaintiff was active around the house and did handyman jobs including clearing gutters and painting. She observed he could no longer do those things. He also could not do a lot of the jobs he previously did in the garden. She now undertook the jobs involving use of the left arm above shoulder height such as pruning.
226Mr Chehata, in his report, noted the plaintiff enjoyed gardening and lawn care but struggled with pruning.
227Dr Rowe identified in his report that the plaintiff was limited around the garden. He had difficulty pruning, wood-chopping and interior painting.
228In his report, Mr Moaveni noted the plaintiff enjoyed gardening and lawn care, but had trouble pruning the garden, wood chopping and painting, which were previously easy for him. He could mow the lawns but had difficulty washing the roof of his car.
229In re-examination, the plaintiff said his injury had impacted his ability to paint the house and clean out the chimneys. He used to do those things himself but now had to pay someone else to do that. He said that was very important to him. He was a proud male, and he felt “inadequate and useless”.
Capacity to play with grandchildren
230The plaintiff said in his first affidavit that he was a grandfather with four grandchildren aged fifteen, thirteen, four and one. He said he felt very restricted in his capacity to play games with them. He found this upsetting. His thirteen-year-old grandson played basketball, and the plaintiff felt limited in his ability to play with him. Similarly, he felt restricted in his ability to play cricket.
231In his second affidavit, the plaintiff said he continued to be restricted in playing with his grandchildren.
232In his final affidavit, the plaintiff said his injury had impacted his ability to play with his grandchildren. He struggled to lift and play with his younger grandchildren and his shoulder was too painful to play cricket and basketball with his sixteen-year-old grandchild. The plaintiff’s wife confirmed those matters in her affidavit.
233Dr Rowe noted that the plaintiff’s inability to swim, and to play golf, basketball and cricket have been upsetting for him, particularly as he enjoyed playing those sports with his grandchildren.
234The plaintiff was cross-examined about his ability to play with his grandchildren. He was shown a photograph in which he was seen holding one of his grandchildren on his left side. It was suggested to him that if he had ongoing problems with his left arm, he would not have been able to hold his grandchild with his left arm. The plaintiff agreed he was holding his granddaughter with his left arm in the photograph and also that he was left arm dominant. However, he said after his injury he was unable to lift any of his grandchildren and his granddaughter would have been passed to him.
235The plaintiff was asked whether his shoulder injury impacted any other activities with his grandchildren. He said it has impacted just about everything including cricket.
Sports and hobbies
236In his first affidavit, the plaintiff said he previously enjoyed swimming for exercise during summer and on holidays. He remained restricted in relation to swimming.
237Before he was injured, the plaintiff played golf about once a fortnight at various golf courses in Melbourne, either alone or with his son or friends. He did not belong to a club. He explained that golf had been important to him for his mental health and relaxation after a 60, or 70-hour working week. He had not played golf since about a fortnight before he was injured. He said he believed the last time he played golf was October 2011 and he felt terrible he could no longer play.
238He also previously enjoyed playing cricket. He had planned to return to play veterans’ cricket. However, he considered, as a result of his left shoulder injury, he could no longer play cricket, particularly as he was a left-hand bowler and batter. In his second affidavit, he confirmed he had been unable to return to playing cricket.
239The plaintiff described trying to keep reasonably fit before he was injured. He lifted weights and had home gym equipment which he had used to work out every second day. He had been unable to return to weight training.
240In his final affidavit, the plaintiff said he has not returned to his previous recreational pursuits of swimming, playing golf and lifting weights.
241When cross-examined though, he said when he began working with the defendant in 2008, he ceased all sport.
242Dr Flynn recorded in her report that the plaintiff had enjoyed photography. He had also previously enjoyed cricket, swimming, basketball and veterans’ football. He was now limited in his capacity to undertake those activities.
243Mr Chehata, in his report, recorded that the plaintiff was now unable to participate in cricket, swimming or basketball, and had stopped veteran’s football. He could no longer undertake photography.
244The plaintiff’s enjoyment of swimming, golf, basketball and cricket were outlined by Dr Rowe in his report as being activities the plaintiff enjoyed before his left shoulder was injured. He had been unable to resume those activities or to lift weights in his home gym which he had previously done every second day.
245Mr Moaveni noted in his report the plaintiff enjoyed swimming, playing cricket, basketball, golf and Veterans’ football prior to his injury. Since he was injured, the plaintiff had experienced difficulty undertaking those pursuits. He was still able to undertake photography.
246The plaintiff was cross-examined about his involvement playing Veterans’ football. He could not recall when he had stopped playing football, but he agreed it was a long time before he was injured. Similarly, he had also not played cricket for a long time before he was injured.
Driving
247The plaintiff said in his first affidavit, he was able to drive his own car, but his shoulder pain increased after he has been driving for prolonged periods, or if he had to reach for something.
248He confirmed in his second affidavit that he continued to have problems driving for prolonged periods as a consequence of his left shoulder injury.
249Dr Rowe noted in his report the plaintiff could drive but was restricted to shorter distances. His shoulder ached if he drove for too long, or if he needed to reach for something in the car.
250Mr Moaveni noted the plaintiff required several breaks to move and rest his arm on longer drives. Static postures associated with driving caused pins and needles in his arm, and he found himself having to shake his arm to obtain relief. Reaching for items in the car or boot was problematic because of the reduced range of movement and strength of his left shoulder.
251The plaintiff informed Mr Moaveni he could drive for short distances but that his shoulder ached if he drove for too long. He frequently had to stop to rest and move on longer drives.
Travel with partner
252In his first affidavit, the plaintiff described how he had planned to travel with his wife in retirement. Although he was still planning on doing this, he considered he would be restricted by his injury. He said it would be painful to lift luggage above shoulder height on a plane.
253In his second affidavit, the plaintiff said his travel plans with his wife continued to be restricted because of his left shoulder injury.
254In his third affidavit, the plaintiff referred to a cruise trip he had taken in March 2019 with his wife. Although he enjoyed the cruise, he had difficulty lifting and carrying his luggage because of his left shoulder injury.
Stoic
255As I have already detailed, I consider the plaintiff was a stoic man. When the effects of his stoicism are taken into account, in my view, the plaintiff’s impairment consequences, considered collectively, rise to the level of being more than “significant” or “marked” and “at least very considerable”
Findings
256I find that the plaintiff’s left shoulder continues to cause him constant pain and he has restricted movement. He experiences pain with activity involving the use of his left arm, particularly if he reaches out or above shoulder height. He continues to have difficulty with activities such as lifting, pushing, pulling and reaching. He has lost overhead rotation, as well as internal and external rotation, and is wary of overuse. His pain is continuing to worsen and is severe in cold weather. His left shoulder has reduced strength and feels weaker than his right.
257He has ongoing left shoulder discomfort which disrupts his sleep. The pain worsens at night. He tosses and turns in bed trying to get comfortable and he wakes with severe pain if he rolls onto his left shoulder
258He does not like taking medication for his left shoulder. He now takes up to six Panadol Osteo or Nurofen tablets per day, uses heat packs and receives massages. These provide him with mild, short-term pain relief. He is unable to take anti-inflammatories because they cause fluid retention.
259The plaintiff is unable to perform his job as a truck driver which he enjoyed and prided himself on. This is more than significant for him. Because of the progression of his shoulder injury and because the plaintiff was a stoic man, he tried to work for as long as possible. He attempted to attain alternate employment. However, the medical evidence supports the position that the plaintiff realistically has no capacity for his pre-injury or other suitable employment.
260He has difficulties washing himself and getting dressed, in particular putting on jackets and jumpers. He has difficulty lifting items at a distance from his body, such as getting groceries out of the boot of the car.
261He has difficulty with household activities and home maintenance. He is reliant on his wife to perform most household chores. Shopping and cooking are difficult, and he has a reduced carrying load.
262I accept the plaintiff is restricted in performing handyman jobs around the house. He is unable to undertake interior painting.
263He is limited in his capacity to perform home maintenance tasks such as cleaning out gutters, painting and chopping wood. These are activities he previously enjoyed.
264Although the video surveillance footage demonstrated the plaintiff has retained some ability to perform gardening tasks, having regard not just to what he has retained, but also to what he has lost,[11] he is nevertheless limited in in his capacity to undertake gardening.
[11]Dwyer (supra) at paragraph [27]; Stijepic v One Force Group Pty Ltd & Anor (supra) at paragraph [44]
265The plaintiff has limited ability to play with his grandchildren. He is unable to swim with them, or to play cricket or basketball with them. He cannot lift his younger grandchildren by himself, but he can still hold them if they are passed to him.
266He can no longer swim, play golf or lift weights.
267I accept that although the plaintiff can still drive short distances, he is now restricted in his ability to drive. This is a significant consequence for him, given his previous occupation as a truck driver.
268The plaintiff is now more limited than he would otherwise have been in relation to travelling with his wife.
269Although the plaintiff’s inability to play football and cricket were claimed to be consequences of his impairment, I do not find that to be the case. The plaintiff had not played either sport for some time before he was injured.
270Further, there was conflicting evidence between Mr Chehata and Mr Moaveni in relation to the plaintiff’s ability to undertake photography. Because of that conflict, I am not satisfied that the plaintiff was now unable to undertake photography.
Conclusion
271Having considered all the evidence, I have determined the impairment consequences of the plaintiff’s injury are more than “significant” or “marked” and “at least very considerable”. I am satisfied it is appropriate for leave to be granted to the plaintiff to commence proceedings for pain and suffering damages.
272I will hear argument with respect to costs.
- - -
0
6
0