Camilleri v Victorian WorkCover Authority
[2023] VCC 2332
•15 December 2023 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02026
| CHRISTOPHER CAMILLERI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2023 | |
DATE OF JUDGMENT: | 15 December 2023 (Revised) | |
CASE MAY BE CITED AS: | Camilleri v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2332 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of right shoulder – credit – range – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Dordev v Cowan & Ors. [2006] VSCA 254; Tatiara Meat Co Pty Ltd v Kelso (2010) VSCA 12; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr W R Middleton KC with Ms L Burke | Lander & Rogers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an injury suffered by the plaintiff during the course of his employment with Aucam Smart Technologies Pty Ltd (“the employer”) on 1 February 2019 (“the said date”).
2The application is brought pursuant to subsection (a) of the definition of “serious injury”. There, “serious injury” is defined relevantly as meaning “permanent serious impairment or loss of body function”.
3The relevant body function in this application is the right shoulder.[1] While the application was initially under both heads,[2] the economic loss application was abandoned during cross examination.[3]
[1]Transcript (“T”) 5; the spinal impairment at three levels in the Particulars of Injury was abandoned
[2]T2
[3]T65; counsel for the plaintiff conceded there was no evidence to support an economic loss certificate
4The plaintiff bears an overall burden of proof upon the balance of probabilities.
5By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Haden Engineering Pty Ltd v McKinnon[5] in reaching my conclusions.
[4] (2005) 14 VR 622 (“Haden Engineering”)
[5] (2010) 31 VR 1
9The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
10The plaintiff’s case was that the plaintiff should be at the peak of fitness and capacity for activities, and he is limited and that combined with the effect on his work and ongoing pain make this, as the Medical Panel found, a very significant and lifechanging injury.[6] A major consequence claimed by the plaintiff was loss of trade as an electrician.[7]
[6]T107
[7]T4
11From the defendant’s perspective, range and credit were in issue.[8]
[8]T6
The Plaintiff’s evidence
12The plaintiff is presently aged thirty, having been born in October 1993. He is right-handed. He lives at Mambourin, between Little River and Werribee South.[9]
[9]T11
13He reached Year 9, leaving school at the age of fifteen. He commenced a mechanical apprenticeship at Kangan TAFE, at the same time working at McDonald’s until he was eighteen.
14He did not complete the mechanical apprenticeship because his mother got sick. At that stage, he wanted to be a motor mechanic. He then went to Mantello Motors for two years, where he was a mechanical apprentice. He did not complete that apprenticeship as they gave him the choice of going to work or taking time off to deal with his mother’s death.[10]
[10]T13
15He did not intend to go back to an apprenticeship as a mechanic, because his lifetime goal was to be an electrician. He did not take up an apprenticeship in this field before working at Mantello Motors, because it was very hard, then, to find an electrical apprenticeship. He did look for an apprenticeship and he was in contact with the ETU, and did research and had job interviews, “but it just did not work”.[11]
[11]T13
16After Mantello Motors, he next worked at Hartley Flexible Foam, performing maintenance and manufacturing for a few years. His next job was with Installex, doing shop-fitting and setting up events. He then worked Camden Air in New South Wales, installing and repairing solar panels and air-conditioning units. He did this job for about two or three months.[12]
[12]T15
17He then worked as an electrical apprentice for G Sampson Electrics at the end of 2017 or 2018. They then went bust. Sampson ran out of work and paid him a lump sum. He later tried to get Raghbir Dhanjai (“Raj”) (the employer) to sign over his apprenticeship from Sampson, which was what was promised, but that never happened.[13]
[13]T14
18The plaintiff next worked for Alerton for six months doing electrical wiring work. The company did a lot of automation and “stuff he was in to”. However, they could not find a site supervisor to look after him, so he had to move on. He was working on the rail project at Pakenham, where they were building a train station, and he was helping to run data, and also doing air conditioning. It was both a technical and hands-on job.[14]
[14]T14
19The plaintiff agreed, prior to starting with the employer, his work was interrupted a number of times by a variety of things, but disputed he could not sustain employment at the one place – “things just happened and they were out of [his] control.”[15]
[15] T15
Pre-incident health
20Before the incident, in April 2016, the plaintiff was assaulted by his brother who punched him in the head and neck. He underwent a CT scan of his brain and cervical spine on 3 April 2016 which did not reveal any fractures or haemorrhaging.[16]
[16]T17
21He did not believe he had major mental health issues from 2015 to 2017. Prior to the incident, he had not been taking Temazepam. If the records showed he was being prescribed it, he had got it for his partner because she could not get it.[17]
[17]T16
22When seen by Dr Lula at Greenvale on 15 September 2013, the doctor was talking him through processing with him about what was then going on with his mum. He was put on Cymbalta, an antidepressant, but he did not end up taking it, because he did not want to be on medication and could not bring himself to take it.[18]
[18]T20
23On 15 June 2014 when the plaintiff attended Greenvale Medical Centre, relationship issues with his family and girlfriend and low mood were noted and also, that he had walked out of his job. This was the issue at Mantello Motors. A mental health care plan started in June 2014 was instigated by his mother’s funeral director with whom he became friendly.[19]
[19]T22
24The plaintiff attended Port Macquarie Hospital in March 2017, when it was noted he was expressing suicidal ideation and cutting himself. That was in the context of an assault by his girlfriend. He spent less than a couple of hours at the hospital. He re-visited there in August that year, when it was noted he had lost his job two weeks earlier and that he was taking Temazepam. He could not recall taking this medication.
25The job he had lost two weeks earlier was concrete polishing, but he could not remember exactly where that was, but he had lost that because of his ex-partner coming to work.[20] He was in that job for three weeks in Port Macquarie. He agreed he was really depressed at that time. He did not believe he was taking Temazepam. He was trying to get help from the hospital and he was hoping they would take it more seriously, telling them about taking Temazepam and drinking a litre of spirits a day. He just wanted to see a doctor.[21]
[20]T23
[21]T24
26He thought he might have been incarcerated overnight following the domestic violence incident with his ex-partner.[22]
[22]T16
Work with the employer
27The plaintiff commenced work with the employer on 25 January 2019, having done a job trial in December 2018. The agreement with the owner, Raghbir Dhanjai (Raj), was that the plaintiff would be signed up for an electrical apprenticeship through another subcontractor of his. That never ended up taking place. In any event, the plaintiff was to work fitting intercom security cameras and alarms on domestic properties, both single and double-storey houses. He also understood he would be doing electrical and data work with the employer.[23]
[23]T8
28As at the said date, the plaintiff had been with the employer for a week. He was working full time and doing one day a week at trade school.[24]
[24]T12
29The employer paid him $18 an hour directly into his bank account. He was supplied with four shirts with Raj’s company logo, which he had to pay for himself and had to wear while working.
30Although the plaintiff supplied his own basic tools, Raj supplied all other tools and equipment, including ladders, power tools and testers. The plaintiff supplied his own vehicle, but Raj was meant to pay for the fuel. Raj also wanted to put business stickers on the plaintiff’s Ute, but that never happened.
31During the time the plaintiff worked for Raj, he did not work for anyone else. He was basically sent a text message to tell him where he had to go and what he had to do. Ninety per cent of the time, Raj was the supervisor, but on smaller jobs the plaintiff worked on his own, and in the meantime, he continued with his course at Kangan TAFE.
The incident
32On the said date, the plaintiff left TAFE early as Raj had work to be done at a house in Craigieburn. While working, the plaintiff fell from a ladder as it moved beneath him, falling about four metres onto the concrete drive, face-first. He believed he was knocked unconscious (“the incident”).
33After the incident, the plaintiff was “pissing out blood” and spat his teeth out. He was in shock and a lot of pain.[25]
[25] Plaintiff’s first affidavit sworn 18 November 2022
34He told those around him that he wanted to go to hospital, and Raj drove him to Northern Hospital and left him in the car park. The plaintiff had to walk to Emergency, where he collapsed on the floor. He remembered later seeing Raj in the waiting room, looking at him lying on the floor, and eventually someone came to his assistance.
35As a result of the incident, he injured two front incisor teeth, 21 and 22, and suffered injury to the right front central incisor, 11, and upper left canine, 23. His left cheek was swollen. He had bruising on his back and right side, and he sprained/bruised his left ankle. He was admitted and remained overnight. He had a CT scan, which did not show any fracture or brain haemorrhage.
36When told the Northern Hospital records set out he fell 2.7, perhaps 3 metres, he said it was really hard to remember everything about the incident, because it happened so quickly, and he had a really bad concussion. He had not reconstructed anything.[26]
[26]T17
37He was complaining about his shoulder at the Hospital so could not understand why it was not mentioned in the records.[27] They did some tests at the Hospital, but they could not remember which ones when he was told there was no shoulder investigation undertaken.[28]
[27]T18
[28]T19
38He attended for emergency treatment on 2 February 2019 at the Coburg Dental Group. When he attended a few months later in August, the restorations on his teeth were failing. He also attended the Royal Dental Hospital on 2 February 2019, as Coburg Dental Group advised his injuries were too serious.
39The first post-incident general practitioner (“GP”) attendance was at Greenvale Medical Centre on 21 February 2019. The clinical note set out a fall of approximately 3 metres. There was no mention of his shoulder because he was more concerned about his teeth – it was very scary for him.[29]
[29]T22
40As he was not able to get back to work because of his injuries, he ended up lodging a claim on 24 February 2019, which was accepted, and weekly payments of compensation commenced.
41He could not recall whether his shoulder was mentioned on the Claim Form. When told it was not, he said he was still in shock the majority of the time just dealing with everything and he was trying to find doctors to help him process everything.[30]
[30]T19
42He later explained: “To be honest, I believe I was just really stressed out at the time, so I didn’t write every single little issue down.” He was so stressed about his teeth and everything else, and the WorkCover thing was really stressful, and he had not been through it before, and he did not believe he was able to write everything down on the form. He could not remember making a claim about his foot through Shine Lawyers.[31]
[31]T67
43On 1 May 2019, he had an x‑ray of his lumbar spine and his cervical spine, and an x‑ray and ultrasound of his right shoulder.
44He saw Dr James McKenzie at Lyndarum Family Clinic on 31 July 2019 with pain in his neck and right shoulder. He had been going to Greenvale Medical Centre since about 2013, but stopped going there, because they were not taking the treatment seriously. He just wanted a normal, standard doctor that would stick the whole way through with him.[32]
[32]T20
45On 27 August 2019, he had an MRI scan of his cervical spine and also his lumbar spine and right shoulder.
46On 19 December 2019, he had an MRI arthrogram of his right shoulder which revealed a SLAP tear on the superior labrum.[33]
[33] It was concluded there was a possible small SLAP tear however, the images completely degraded
47On 21 April 2020, he was meant to have an MRI scan of his right shoulder although it never went ahead in order to avoid a capsular rupture.[34]
[34] The MRI scan went ahead. There was no evidence of a SLAP lesion
48He started seeing an orthopaedic surgeon, Mr Shailendra Dass, in November 2019 for his right shoulder. He saw him again in April 2020. Mr Dass recommended right shoulder arthroscopy and debridement for possible capsular tears. However, WorkCover denied liability for the surgery.
49He thought he had only seen Dr Dass twice. Dr Dass emailed, saying only to come back when the surgery is approved.[35] Dr McKenzie has not referred him back to Dr Dass.[36]
[35]T58
[36]T59
50He saw Marita Mercer, a psychologist, a couple of times. The police did a victim of crimes application on his behalf. While her notes mentioned him hurting his shoulder doing something in relation to a broken steering rod, he could not recall trying to fix it and did not know he could do that.[37] He could remember seeing her a couple of times in 2020 and 2021. He could not remember what he saw her for except for counselling.[38]
[37]T26
[38]T69
51The plaintiff ended up seeing another orthopaedic surgeon, Ms Anita Boecksteiner, in February 2021. She felt that some of his pain may be attributable to his spine and lack of exercise and rehabilitation after the incident. She recommended physiotherapy to restore strength and range of motion to his shoulder, arm and neck. She did not suggest surgery. He thought she wanted to check out his neck, as it might explain something about his shoulder.[39]
[39]T61
52He had two or three physiotherapy sessions and received a letter from Allianz saying they would not pay for more physio; they pulled the pin on it.[40]
[40] T61
53Due to symptoms of anxiety and depression arising from his injuries, he saw psychiatrist, Dr Karuppiah Jagadheesan, in about June 2021. He has been trying to get back to see this psychiatrist.[41]
[41] T62
54As at 18 November 2022,[42] the plaintiff continued to suffer from ongoing right shoulder pain and had difficulty moving his right arm fully. The pain was worse with repetitive and overhead activities. He had lost strength in his right arm and had difficulty performing any heavy lifting. He had difficulty starting a lawnmower, and for that reason, no longer did the mowing.
[42]First affidavit sworn 18 November 2022
55Fortunately, around the house, Chloe did most of the housework.
56He also continued to suffer from ongoing symptoms in his neck which could feel like a sharp burning sensation. Neck movement was restricted. The symptoms radiated into his right shoulder and down his arm, with numbness and tingling in his fingers. He also had headaches.
57He also had pain in his back which radiated into his buttocks, groin, and legs, worse on the left than the right, with a burning sensation in his feet. Because of back pain, he was restricted in terms of freely bending and twisting.
58The damage to his teeth continued to be an issue, and he suffered from jaw stiffness and pain, and had difficulty eating.
59In June/July 2021, he had managed to find a position with Battery World performing retail work, fitting batteries to cars and roadside assistance. The job was basic and there was nothing too heavy associated with it. He was paid $25 per hour full time.
60However, in about February 2022, he reduced his hours to Saturdays, 8.00am to 5.30pm, and Sundays, 9.00am to 4.00pm, when he found a slightly better paying job with Orange Hire as a trades assistant helping out with machines. He worked 7.00am to 3.00pm, Monday to Friday. He tried to avoid the heavy lifting and fitting attachments to machines, although he suspected his employer did not like that. He did not think he would have that job much longer.
61His boss had a zero tolerance of drugs, and therefore when the plaintiff took medication such as Panadeine Forte, Nurofen Plus, and sometimes Endone, that generally had to be done only after work. During the day, therefore, with his pain, he tended to be grumpy and moody. He generally found that after a day’s work when he got home, due to increased pain, he was moody and grumpy.
62He ended up ceasing physiotherapy at about the time of COVID when WorkCover no longer agreed to pay for it.
63He wanted to train himself as a patient-transport driver, but funding was rejected.
64The injuries had had a significant impact on his ability to get a good night’s sleep. He often took Temazepam and had also been prescribed Seroquel to help him sleep.
65He had tried gels and ointments with little benefit.
66He had put on about 40 to 50 kilograms since the incident, due to relative inactivity.
67He found driving his manual Ute was difficult, and he ended up purchasing an automatic car which was more manageable for him.
68Before the incident, he was very active. He used to participate in martial arts and box-fit, which is a form of boot camp. He had not returned to those activities post-incident, and effectively felt as though he was stuck in the body of an eighty-year-old man.
69Pre-incident, he also used to enjoy four-wheel-drive camping, cutting firewood, and fishing, and regularly travelled to places such as Cohuna, the Murray River, and Mount Disappointment.
70He cannot enjoy four-wheel driving, camping, cutting firewood and fishing. Cutting firewood can be pretty labour intensive. The last time he went camping was with his ex-partner’s family and they did all the work, and he stayed for one night and went home because of the pain.[43]
[43]T72
71Chloe’s family regularly went ten-pin bowling, but because of his injuries, particularly the right shoulder, he did not participate, and either went along with them and watched or simply stayed home.
72A bowling ball can weigh more than a battery, but he never played, just sat there.[44] Ten-pin bowling is very different to lifting a car battery.[45]
[44]T73
[45]T76
73He used to enjoy going with friends to nightclubs, but no longer went and indeed had lost contact with many of his friends.
74He could no longer look after his dog, a Staffie Cross, and ended up having to let it go. He had been bedridden for a long time after the incident. Although his partner had her own dog, a Maltese cross Shi Tzu, she tended to walk the dog instead of him.
75Even basic activities such as kicking a football around the park were now difficult for him. Pre-incident, for a couple of years, he helped out at Auskick with a friend who had two children. He would no longer be able to do so because of his injuries: both his shoulder injury on its own, and quite separately the injury to his neck and back.
76He would not be able to help out with Auskick now because of his injuries, both the shoulder on it is own and, quite separately, the injury to his neck and back. He last did Auskick in about 2018. What affects him most is the shoulder that causes most of the pain, and his neck and back hurt too.[46]
[46]T74
77In his supplementary affidavit sworn on 22 November 2023, he deposed he continues to suffer from pain and symptoms relating to his right shoulder and spine, including his lower back and neck, as well as dental injuries and psychological injuries.
78He remains under the care of Dr McKenzie. It is difficult to get an appointment with him, however, he is trying to get updated referrals for physiotherapy and psychological treatment. He is not currently doing physiotherapy or hydrotherapy.[47]
[47]T62
79He continues to take painkilling medication. He takes Tramadol up to a couple of times a week when his pain is at its worst. He continues to take Panadeine Forte regularly throughout the day when he is at work, as well as Nurofen Plus and Panadol.
80The number of times a week he takes Tramadol, or the amount of tablets can vary. Most recently, he has been taking it two or three times a week. He also takes Panadeine Forte, Nurofen Plus, Temazepam, Diazepam and asthma medication. Last week, he probably had been taking 10 to 15 Panadeine Forte. When asked what he takes it for, whether his back, neck or what, it is “pretty much all the pain”. He gets pain in his neck, back and shoulder.[48]
[48]T63
81He continues to experience ongoing right shoulder pain associated with difficulty moving it fully. He used to have difficulty mowing as he could not start the mower, so he got an electric one, and he also gets help from the neighbour. He has mown the lawn with the new electrical lawn mower. He does all the cleaning and cooking himself.[49]
[49]T71
82He agreed with Dr Horsley’s assessment that he was restricted in his neck, back and right shoulder movements, and that he has a combination of injuries affecting his pain levels.[50]
[50]T64
83He could not remember having a full range of shoulder movement in February 2021, when he saw Dr Boecksteiner.[51] He disagreed that he had a full range of shoulder movement when seen by Dr Saxby in June 2019.[52]
[51]T65
[52]T66
84He continues to experience persistent symptoms in his neck, including restricted movement and a sharp burning sensation into his right shoulder. He continues to have headaches a few times a week, and when these come on, he takes stronger medication like Panadeine Forte or Tramadol.
85He is still having dental issues which have not been fixed as he cannot afford the treatment, the full amount not being approved by the insurer.
86By about the end of August this year, he and Chloe split up, because he would often come home from work grumpy and irritable, and because he was in discomfort from working with shoulder, neck, and back pain. She also said it felt like she was dating a ninety-year-old, as he did not have the energy to go out and do things.
87As a result of the split-up, he no longer takes the dogs for walks. If he had a dog, he would try walking it.[53]
[53]T73
88He is a lot more sedentary, and still struggles to keep his weight down. He still weighs around 40 to 50 kilograms more than he did prior to the injury.
89He was not too sure that, when Mr Saxby weighed him in September 2019, he weighed 103 kilograms. He thought, before the incident, he had been between 75 to about 89 kilograms, but he could not remember weighing himself back then.[54] He could not really recall if he would have weighed 100 kilograms when weighed by Dr Menz in October last year. The last time he weighed himself, he thought he was about 116 or 120 kilograms. That was possibly three of four months ago.[55]
[54]T10
[55]T11
90The plaintiff tendered a photograph he took of his upper torso taken three to four months after the incident, to show he was fit and healthy before his injury.
91Since Chloe moved out, he has had to do more of the cooking and cleaning himself, as he lives alone. He tries to do it in bursts, because he is tired and sore after work, and he relies more heavily on his left arm. He tends to avoid cleaning as much as possible due to pain and discomfort. He still avoids overhead activities because they aggravate his shoulder condition.
92He continues to have difficulty sleeping due to pain and discomfort. He takes Temazepam every night to help him sleep, and uses Voltaren and Deep Heat, as it eases some of his discomfort.
93He has not been able to return to box-fit or martial arts. He used to do box fit, similar to cross-fit, around two to three times a week. He also used to do Zen Do Kai, a form of martial arts which he had been doing on and off since he was about thirteen. He finds it upsetting that he can no longer do these activities. He thought he had last done Box FIT martial arts in October 2018, but he could not remember exactly.[56]
[56]T72
94He just tends to feel low and flat most of the time and struggles with motivation to do anything outside work.
95He is currently in the process of selling his share of his grandmother’s estate in Marlo for what is likely to be significantly lower than what it is worth, due to him not being able to do the maintenance on the property. It is six and a half hours away, which he believes would be an extremely difficult and painful drive for him.
96He continued to work for Orange Hire as a trades assistant, as well as doing a day or two a week at Battery World.
97While he continued at Orange Hire, he had increasing difficulty doing the work, and tried to avoid many of the heavier tasks involving bending, lifting, and fitting attachments to machines. He also found working with some of the machines distressing with respect to his Post-Traumatic Stress Disorder (“PTSD”), as he had flashbacks of his injury. He was being paid $27.50 an hour, and working on average 38 hours a week.
98In around July this year, he was told Orange Hire were making him redundant as they felt he was not capable of doing the job properly, and they were restructuring. He had to go back to Battery World where he picked up more hours.
99Until about a week or so ago, he was contracted to do four days a week as a permanent part-time employee. He was usually working some extra hours when available, up to around 40 a week on average. He is now full time and continues to be paid about $32 an hour.
100Separately, he submitted a request for retraining so he could work in a non-emergency patient-transport role. This request was not accepted, and he has not been able to undertake that training.
101Prior to the incident, he was trying to complete his electrician’s apprenticeship. In part, he had started working with the employer because the employer told him he would help him complete his apprenticeship.
102If not for his injuries, the plaintiff would have completed this apprenticeship, and he had intended to go to work as a commercial industrial electrician and work in the field of automation. As a result of his injuries, he does not believe he would be able to work as an electrician as it is too physical.
103Once, he tried to get an electrical apprenticeship after the injury, but it was just too hard, so he just gave up. This was because of his shoulder and PTSD, which caused him to think back about the incident, and also not having the strength to do heavy lifting.[57]
[57]T15
104There is lots of heavy lifting as an electrician, and some rolls of cable can weigh as much as a bull bar, depending on what kind of bull bar. He thought the one he was filmed lifting weighed about 20 to 30 kilograms.[58] He lifts batteries only when he has to, it is part of his current job, but he has other staff who are meant to do it for him. He is now a manager.[59]
[58]T16
[59]T16
SCHEDULE OF INCOME Year Ending Employer Gross earnings 30 June 2016
Galaxy Personnel Pty Ltd
Installex Victoria Pty Ltd
$618
$19,065
Total: $19,683
30 June 2017
Installex Victoria Pty Ltd
Trustee for Sacco Group Unit Trust
$8,332
$269
Total: $8,601
30 June 2018
Eastland Truss & Timber Pty Ltd
Robin Desmond & Kerry Desmond
Breell Pty Ltd
Newada Pty Ltd
Trustee for the McGuigan Trust
Labour Line Workforce Solutions Pty Ltd
$605
$473
$1,581
$170
$3,976
$172
Total: $6,977
30 June 2019
Allstate People & Training Pty Ltd
Allerton Contracting Pty Ltd
$1,024
$2,696
Total: $3,720
30 June 2020
MCC 4x4 Accessories Pty Ltd
$1,582
Total: $1,582
30 June 2021
Melbourne Tyre Co. Pty Ltd
$2,507
Total: $2,507
30 June 2022
Orange Equipment Pty Ltd
AW Stubbs Pty Ltd
$16,224
$48,379
Total: $64,603
30 June 2023
Orange Equipment Pty Ltd
AW Stubbs Pty Ltd
$59,889
$28,422
Total: $88,311
105WISE arranged the job for him at MCC 4x4 Associates in Epping. He could not keep up with what MCC wanted. WISE Employment were pushing him to do the job.[60]
[60]T64
106In addition to what was set out in his schedule of income, he received Centrelink benefits, namely Austudy, $9,649, in the 2015-2016 financial year. In the 2016-2017 financial year he received Austudy of $13,417 and in the 2017-2018 financial year, $12,476.
107He was in receipt of Austudy because he was still studying his Diploma in Project Management in 2018. He had been doing that course since 2016 because he wanted it to help when he finally finished his electrical apprenticeship, and because he wanted to move further up. He did not want to be just a normal electrician.[61]
[61]T28
108As he was struggling to get an electrical apprenticeship, he thought he would be more attractive to employers if he had the Diploma in front of him as well. He did not complete the Diploma because the training institution shut down.[62]
[62]T28
109In the 2023 financial year, he earnt $88,311. He thought it was the best year ever. He was working very hard and getting paid commissions from Battery World as well as weekly pay. He earned so much because he was working two jobs.
110While working at Battery World and Orange, he was working 56.5 hours per week. He did some lifting, but he did not know how heavy the stuff was. Most of the time they used forklifts.[63] He was working 56.5 hours a week because he had to, to support his partner, and also her sister had moved in, so everything relied on him basically.[64]
[63]T32
[64]T75
111His wage records indicated from 1 July to 22 October 2023, he had grossed $32,000, which included $7,358 in callout commission. He thought he is paid $2,800 a fortnight after tax and superannuation. He said he was not good with numbers when he was told that represented an income of $100,000 a year.[65]
[65]T33
112In his current job, he basically looks after the staff and does everyday tasks like opening and closing the store and paperwork. There sometimes has to be hands-on tasks when he cannot get anyone else to do them. Every now and then, he fits batteries. Sometimes he has to lift and move batteries.[66]
[66]T34
113In 2021, Nabenet thought it would be a good idea for him to obtain a heavy rigid licence. He did not think it was approved and that is why he did not go ahead with it. However, a funding request document from Nabenet dated 21 April 2021, supported by the plaintiff’s GP, set out approval was granted to the plaintiff to undertake the training course at the total cost of $1,095.[67]
[67]T68
Surveillance film
Cross examination
114The plaintiff has seen the 2019 film of him at a workshop where his car was being fixed. He denied he was doing physical tasks. He was doing a couple of minor things, only to be friendly, because he wanted to get his car fixed. He could not remember exactly the number of days he spent there. He spent a little bit of time, because he was getting frustrated after they ended up blowing up the engine in his car, and he was trying to get if fixed, and his car was just there in pieces.[68]
[68]T35
115He was then shown the video.
116There was approximately 1 hour, 10 minutes and 22 seconds of film taken in 2019 on 5 and 8 July,19 July and 25 July, 13, 19, 20, 23 September 2019 and 23 October 2023.
117When it was suggested that, in the 2019 and 2023 videos, he was involved in normal activity in using his right upper limb, he said that “you did see me using it possibly normally at that point … but there’s times where it hurts and there’s times when I can do something and there’s times when I can’t.”[69]
[69]T58, L3-6
118It was put to him that there was no difference in his ability to mobilise between the film on 29 September 2019 and that in October 2023. To him, the video did not show his day-to-day life, it just showed “what you want it to see”.[70]
[70]T70
119He was taken to his affidavit evidence about difficulty moving his arm fully with repetitive and overhead activities. He was asked whether he saw any of those restrictions in the film, and he said he saw a little bit, but also when he was brought up, he was brought up not to show weakness and pain in front of people. It does show behind closed doors.[71] He did say, in his affidavit, that he gets home, lies down in bed because he is in pain, it takes its toll every day.[72]
[71]T70
[72]T71
120In rebuttal of the suggestion he was shown working in the film, he explained he is familiar with workshops and interested in cars. He knows workshop safety and how to be safe in the workshop. He became friendly with the people there while he was not working. He was not paid. Apart from going to the workshop, he did not have much to occupy himself during the day. Apart from a couple of things, he spent a lot of time standing around talking to people.[73]
[73]T76
July 2019 film
121Film taken on 5 July 2019 commencing at 8.29am shows the plaintiff at a workshop called “Aussie Offroad Megastores” (“the workshop”), wearing a high-vis orange jumper walking and chatting with the staff members.
122He was a customer and a friend of the staff. He was not working there.[74] He was doing some minor physical tasks to be friendly because he just wanted to get his silver Nissan Navara repaired. He cannot recall how many days he spent there, but he was getting frustrated after they “ended up blowing the engine” in his car. He just wanted to get his car fixed.[75]
[74] T37
[75] T35
123He knew two of the staff in the film, Jan and Furhart. They were friends. Jan owned the white Nissan with the boat attached to the back. He was showing the plaintiff how proud he was of it.[76]
[76] T38
124At 9.22am, the plaintiff assists staff by lifting an aluminium plate with both arms over his head. He holds the position for approximately 40 seconds and laughs in response to a remark someone makes. He is not shown having any difficulty raising his shoulder above his head.
125In re-examination, the plaintiff confirmed he was right- handed and when lifting the aluminium panel, he has his left shoulder raised higher than the right one. Being right hand dominant, he usually takes the weight on his right side.[77]
[77] T75
126The plaintiff was taken to a sign on the workshop that stated, “All visitors report to the office.” He agreed he was a visitor but was allowed in the workshop because his car was getting fixed.
127At 10.40am, counsel for the defendant suggested the film showed the plaintiff lying underneath a car which was not his own. The plaintiff could only see himself grabbing something from the side but not underneath a car.[78] The film was unclear.
[78] T41
128On 8 July 2019, at approximately 8.20am the plaintiff is dropped off at the workshop in a Holden Commadore. He opens locked gates to the premises with a key. He had a key because he was arguing with them about his car being in there for so long. He wanted access to get his stuff from his car and do things to his car. He disagreed that having a key is inconsistent with him being a visitor and consistent with him doing work there:
“I don’t believe I was working there because my car was there and I did give Ilbron bank transactions and everything showing that I was buying a lot of stuff from there to get my car fixed.”[79]
[79] T42
129At 9.07am, the plaintiff closes the roller door to the workshop because he was told to. He was following instructions because, “it’s their workshop, not mine.”[80]
[80] T43
130From 5 July to 19 July 2019, he was not going to the workshop every day. He could not remember how often he went.[81]
[81] T44
131Film on 19 July 2019 showed the plaintiff at the workshop. He agreed he did a couple of things to his car. He was getting assistance to help with his car. He held a tool in his hand and walking around the workshop. He was getting help to get his engine out.[82]
[82] T44
132Film on 25 July 2019 commencing at 8.40am shows the plaintiff at the workshop chatting with staff and looking at a blue Ute. Jan was asking him a question because of his electronic knowledge.[83] He first met Jan in about March 2019 when he brought his car to the workshop to get his bull-bar fitted. When he was driving home, his engine overheated, and it got seized. His car ended up getting towed back to the workshop and he was getting them to fix it because it was sort of their fault.[84] He just wanted a bull-bar.
[83] T44
[84] T45
133The plaintiff was then shown reversing a Toyota Camry out of the workshop. He borrowed the car from one of Jan’s staff while his vehicle was being repaired.[85]
[85] T45
134At 10.09am, the plaintiff is sitting on the ground working soldering a cable for one of Jan’s cars. He agreed he was showing Jan the wiring on the car because the reverse sensors were not working. The plaintiff then lies down in a prone position underneath the vehicle. He thinks he was putting a cable tie on for the cable.[86] He appears to be under the car for a few minutes before climbing out from out of the car.
[86] T48
135The plaintiff disagreed he clearly had a capacity for work in mid-2019 given the tasks he was doing at the workshop. He plaintiff did not see that as a capacity for working. He was not under the car for that long.[87]
[87] T48-9
136Jan did not pay him for this work. The plaintiff paid Jan for 99 per cent of the work done on his car, including labour and parts.[88] Jan did not off-set the costs of fixing the plaintiff’s car with the work he did on the other cars. He paid Jan thousands of dollars but did not have exact invoices. He had bank transfers and card payments to Aussie Offroad Store.[89] He never got a bill because the workshop got shut down and the landlord called him to pick up his car.
[88] T46
[89] T47
137At 2.30pm of the film, the plaintiff is manoeuvring a large silver item in a Ute. The plaintiff could not see what he was lifting.[90] He then assists a delivery driver in lifting a bull-bar from the ground onto a Ute. The plaintiff agreed he was lifting it but clarified it was an aluminium bar, not a proper bull-bar.[91] He did not think it weighed much and thought he was struggling to lift it. The plaintiff touched the tablet held out by the delivery driver. He agreed he touched the tablet but does not remember signing anything.[92]
[90] T54
[91] T49
[92] T50
138At 4.04pm, the workshop has a chain across the entry displaying a ‘NO ENTRY’ sign. The plaintiff was permitted entry to the workshop because he ended up becoming friends with Jan and he did not want to ruin the relationship. He was trying to keep the relationship on good terms.[93]
[93] T50
September 2019 film
139On 13 and 19 September 2019, the plaintiff is at the workshop chatting to the staff. His car still hadn’t been repaired. It never got repaired in the end.[94]
[94] T50
140On 19 September 2019, he is speaking on the phone and is holding the phone to his right ear using his left hand. He later uses his right hand to hold the phone to his ear.
141Film taken on Friday 20 September 2019 commencing at 10.57am shows the plaintiff carrying two cans of oil that he drained out his car and throws both into a large bin by swinging his arms. He agreed he was cleaning up after draining oil out of his own car.[95]
[95] T51-2
142Film taken the following Monday on 23 September 2019 shows a staff member operating a forklift moving a large rectangular box. The plaintiff assists him lift the box off the forks of the forklift. The plaintiff confirmed he rolled the box but did not lift it. He helped move it.[96]
[96] T52
143The staff member then reverses the forklift, which hits and damages the roller door. The plaintiff was hanging around while the man was on the forklift because he did not have a forklift licence and he did. The man could drive the forklift without a licence with supervision.[97]
[97] T53
144The plaintiff then takes over operation of the forklift because the staff member had damaged the roller door and asked for his help. He was not restricted by his shoulder in driving the forklift because it had power steering. He operates the forklift for a few minutes. The plaintiff disagreed he could get a job as a forklift driver – “every time I go onto a forklift, or something like that, I get really nervous with anxiety.” He could not tell if he looked anxious in the film. He did not receive treatment for anxiety prior to the incident.[98]
[98] T53
145At 11.07am, the plaintiff appears to be holding his right arm close to his body in a sort of sling position.
October 2023 film
146Film taken on 23 October 2023 commencing at 9.00am shows the plaintiff at Bunnings. He was buying something for work. He walks back to his work vehicle, an automatic Toyota Hilux. He opens the back Ute boot containing all his tools. He takes out some tools. He disagreed that he had no problem reaching up and pulling the boot down – “There was a problem, there is pain, but I can’t show it work or else I wouldn’t have a job.”[99]
[99] T55
147The plaintiff then attends to repair a customer’s truck. He explained that he had to jump start the truck. He had to go because another staff member who should have been there injured himself, “there was literally no choice. I had to go.”[100]
[100] T55
148At 11.50am, the plaintiff is working on a customer’s car with a co-worker.
149On 29 October 2023 at 9.12am, he is shown working on a customer’s car. He rolls a trolley with a battery from the store to the customer’s car. He leans into the car and removes the old battery and replaces it with the new one. The batteries weigh about 5 or 6 kilograms.[101] He then lowers the bonnet of the car. He agreed Dr McKenzie put a lifting tolerance of 1 kilogram – “he previously did”.
[101] T57
The Plaintiff’s medical evidence
Treaters
Northern Hospital Emergency
150The Emergency notes set out the plaintiff had a fall from a roof of approximately 2.7 metres height 1.5 hours ago. He fell down the roof along the ladder, landing over the face. Nil recall of the event. Not sure about LOC. Complained of pain over face, neck, back and left ankle.
Dr James McKenzie, Lyndarum Family Clinic
151There were a number of reports from Dr James McKenzie from Lyndarum Family Clinic.
152He has seen the plaintiff since 31 July 2019. At that stage, the plaintiff reported neck and right shoulder pain, having fallen from a ladder about 4 metres.
153In his most recent report of July 2023, he diagnosed a right shoulder supraspinatus and infraspinatus tendinosis, partial tear thickness articular surface tear at the insertion of the mid fibre of the infraspinatus tendon. In earlier reports, he disagreed with Dr Menz’s diagnosis and opinion.
154Current treatment is analgesia, psychological therapy, physiotherapy, psychiatric and dental treatment.
155The plaintiff’s condition had not stabilised, and he effectively has had very little treatment in the last three and a half years.
156The plaintiff was not fit to lift any objects greater than a kilogram with his right arm and not to lift above shoulder height.
157The prognosis was good if the plaintiff could undertake effective treatment, however, he would most likely have chronic pain to his right shoulder, which would limit his ability to do physical work and also to participate in any sporting activity requiring the use of his right arm.
158Part time, non-physical employment was the plaintiff’s only current option.
Mr Shailendra Dass, orthopaedic surgeon
159Mr Dass initially saw the plaintiff on 27 November 2019. At that stage, the plaintiff was not working.
160The plaintiff had an MRI scan of his whole spine and right shoulder when admitted in Emergency. The finding in the right shoulder was a tear of the infraspinatus tendon.
161On examination, there was tenderness over the right subacromial area and acromioclavicular joint. External rotation was to 45 degrees bilaterally, forward flexion and abduction to 140 degrees.
162After the initial consultation, a SLAP lesion was suspected, and an MRI arthrogram of the right shoulder was requested and was performed on 21 April 2020. The findings were no SLAP lesion. There was mild truncated posterior labrum. There was mild tendinosis of the supraspinatus tendon with bursal surface spraying. The plaintiff had a Type 1 acromion and mild arthrosis of the acromioclavicular joint.
163The diagnosis after clinical examination and MRI arthrogram of the right shoulder was supraspinatus tendinosis without any tear.
164The plaintiff may benefit from a psychological evaluation.
165The plaintiff’s prognosis was very guarded, given he also had mental health issues. His pathology was very mild soft tissue injury and one year post injury, he would have expected the plaintiff to improve to pre-injury levels.
166He was unable to comment on the effect of the injury on the plaintiff’s work or leisure activities, or due to his mental health issues relating to the injury.
167The plaintiff then had a full capacity for work.
168He requested the plaintiff undergo arthroscopic surgery based on minimal MRI findings that could not be attributed to his symptoms, therefore further investigation with shoulder arthroscopy was requested for diagnostic and minor therapeutic procedures, for example, debridement.
Dr Anita Boecksteiner, orthopaedic surgeon
169Dr Boecksteiner saw the plaintiff on 26 February 2021 on referral from his GP, Dr James McKenzie.
170She was advised that another orthopaedic surgeon wanted to do a shoulder arthroscopy and that WorkCover had been obstructive to the decision.
171The plaintiff told her he fell about two metres on his head, neck and shoulder and his back and legs were also impacted. He was taken to Northern Hospital, where investigations were taken of his head, neck and shoulder, and he was told he had soft tissue injuries. He had a number of right shoulder MRI scans. His current MRI scan showed some tendinitis and no ruptured muscles.
172One report called the bruising in the plaintiff’s humeral head a “Hill Sachs” lesion, but it was likely more consistent with a direct blow from the fall rather than dislocation.
173Her examination two years after the fall revealed a full range of motion of the right shoulder. The plaintiff complained of pain if the shoulder was held low with traction on it and he complained of neck and shoulder pain and described tingling in his fingers.
174She sent him for cervical spine investigations due to those symptoms, as she felt some of his pain may be attributable to his spine, and some to the lack of exercises and rehabilitation after the fall.
175The plaintiff came back after 12 weeks. The spinal MRI scan was normal.
176The plaintiff had a significant fall with initial scan results, consistent with bruising of the impacted region. There was no severe structural rupture or fracture demonstrated at the time.
177The plaintiff was globally sore and stiff at the time of injury and did not seem to have optimal soft tissue treatment which, at the time would have included a short period of rest, followed by rapid exclusion of serious injury with, then, early movement and massage to remove stiffening components of haematoma or bruising, then a transition to increased weight training. This did not happen, so there was now a stiffness and pain associated with this delay.
178She recommended physiotherapy to restore range and strength to the plaintiff’s shoulder, arm and neck. She could see no permanent disability arising from this.
Anthony Frandina, physiotherapist at Hoppers Physio
179Mr Frandina treated the plaintiff for chronic right-sided neck and shoulder pain from March 2021. By May 2021, he had seen the plaintiff four times.
180He noted that Allianz’s decision for the plaintiff “to remain entitled to compensation for the reasonable costs of medical and like expenses, including occupational rehabilitation services” would help the plaintiff to continue his recovery.
181He believed this was a cervical disc related injury which had resulted in subsequent deconditioning of the right shoulder due to referred pain and nil physical intervention.
Werribee Mercy Hospital Emergency
182The plaintiff was seen at the Werribee Emergency on 21 June 2021, where he attended with worsening back pain two weeks earlier. He had been having pain on and off after the incident. He reported pain on the neck and lower back, with lower back pain radiating to both legs. At that stage he was not able to walk or get in and out of bed due to pain.
Dr Kurupiah Jagedheesan, psychiatrist
183Dr Jagadheesan first saw the plaintiff on 12 June 2021. PTSD was the main diagnosis. The plaintiff also had an Adjustment Disorder (differential diagnosis Major Depressive Disorder as an additional diagnosis).
184Based on the information, those conditions started after the incident and the plaintiff remained unwell, with ongoing symptoms of PTSD and depression.
Medico-legal
Dr Robyn Horsley, occupational physician
185Dr Horsley first saw the plaintiff in October 2022.
186The plaintiff reported intermittent pain in his right shoulder five to six times a week which could last six to seven hours. It depended on his level of work. The pain varied from 6 to 10 out of 10. He avoided aggravating activities. He also had intermittent neck pain and back pain on an almost daily basis.
187On examination, there was pain at forward flexion of the shoulder at 80 degrees, but elevation to 100 degrees. Abduction would reproduce pain at 70 degrees, but the plaintiff could elevate to 100 degrees. Extension was limited in the last 10 degrees. Abduction and external rotation were normal. External rotation was normal in range, but reproduced discomfort at the end of the range.
188Dr Horsley went through all the investigations.
189She noted the plaintiff sustained a significant fall of 2.7 metres. He presented with ongoing intermittent mechanical neck pain and intermittent mechanical back pain.
190The MRI arthrogram confirmed a torn posterior capsule of the right shoulder and ongoing supraspinatus tendinosis and mild arthrosis of the right acromioclavicular joint.
191Given the length of time since the injury and the ongoing nature of symptoms, she believed they were likely to persist. The plaintiff required proactive management in the first instance on the basis of the Beck Depression Inventory and the letter from his treating psychiatrist, he would benefit from rereferral for a review of medication and referral to a psychologist.
192The plaintiff was seriously deconditioned and had gained 40 kilograms.
193The plaintiff was aware he was not able to return to his previous role as an apprentice electrician and was keen to move away from physical work, and was interested in training as a non emergency patient transport worker.
194She recommended a separate range of work restrictions in relation to the plaintiff’s mechanical back pain, his neck condition and his right shoulder.
195On review in October 2023, the plaintiff had ongoing issues with his neck, back and right shoulder.
196There was some restriction of right shoulder movement with forward flexion to 110 degrees, abduction to only 60 degrees, extension to only 20 degrees. Internal rotation and adduction were normal, and external rotation was limited to 35 degrees.
197She imposed the same work restrictions in terms of the plaintiff’s right shoulder disability, intermittent neck pain and intermittent back pain.
198Unfortunately, the plaintiff had developed a Chronic Pain Syndrome and continued to present with ongoing mechanical neck and back pain. His mental health had declined since the last assessment.
199The plaintiff had had very little physical input since 2020 and would benefit from further intervention in a multidisciplinary pain management clinic.
200In addition, on the basis of the Beck Depression Inventory and his general presentation, the plaintiff would benefit from referral back to his treating psychiatrist for overall management from a psychiatric perspective.
201At that stage, the plaintiff’s prognosis four years’ post injury was likely to be for ongoing intermittent neck and back pain.
Medical Panel
202When the plaintiff saw the Medical Panel on 25 May 2023, he reported constant pain on the front and back of the right shoulder, which worsened with activity. He also had intermittent pain at the base of his neck which was separate to his right shoulder pain. His shoulder felt swollen and painful, but there was no numbness.
203He had advised he avoided using his right hand for activities of daily living and care, using his left hand to wash his hair and back, and brush his teeth.
204The plaintiff told the Medical Panel his partner did the housework and the cooking, and he avoided all above shoulder tasks and did not go shopping. He bought an electric lawnmower, as he could not pull the cord on his petrol lawnmower.
205The plaintiff said, if he was not working, he spent his days in bed due to his low mood. He said he had difficulty seeing his GP, as he was now living more than an hour from the practice.
206He said he took Panadeine Forte, about four tablets a day, and Tramadol about once a week, and only used anti-inflammatories if his shoulder pain was really severe.
207On examination, he held his right shoulder in an elevated position. There was mild restriction of movement of the spine to the right. On examination of the right shoulder, there was no obvious wasting of the shoulder girdle or of the rotator cuff muscles. On palpation, there was generalised tenderness around the right shoulder and right clavicle. There was mild to moderate reduction in all movements of the shoulder. Impingement test was negative and power of the rotator cuff muscles was normal.
208The Panel noted the reports of the ultrasound of the right shoulder of 1 May 2019 and x-ray of that date, MRI scan of the right shoulder of August 2019 and April 2020.
209Based on the plaintiff’s history, the Panel’s own examination, and its consideration of the material, including the imaging, it concluded the plaintiff was suffering from a residual dysfunction secondary to a soft tissue injury to the right shoulder.
210The Panel noted the plaintiff sustained a very significant work injury, which had been life changing for him, but he had had limited psychological and medical support to facilitate his physical and mental recovery and an adequate return to rewarding employment.
211The Panel noted the plaintiff was struggling to see even his GP, and that he had last seen his treating surgeon in 2020, and had only had minimal physiotherapy.
212The Panel’s concluding view of the time frame since the last orthopaedic review and very limited active supportive care since the injury, was that the plaintiff would benefit from an updated orthopaedic consultation and a multidisciplinary management plan, and concluded the suggested arthroscopy was not currently appropriate or adequate for the injury.
213The Panel agreed with Dr Horsley’s who in her May 2022 report, opined that, given the length of time since the injury and the ongoing nature of her symptoms, she believed those symptoms were likely to persist and the plaintiff required proactive management.
Mr Ash Chehata, orthopaedic surgeon
214Mr Chehata examined the plaintiff in October 2023.
215The plaintiff told him that he fell on his right shoulder and face in the incident.
216It would appear the plaintiff had a previous history of depression and anxiety which had been compounded with both nightmares and the development of PTSD. He had been taking numerous medications for ongoing chronic pain, including Temazepam and Diazepam. He was seeing a psychologist, Dr Melissa Glenwright, because of ongoing frustration and anger at lack of progress.
217The plaintiff had ongoing aches, pain and discomfort and weakness in the shoulder, as well as ongoing a0ches, pain and discomfort into the back.
218On examination of the shoulder, there was flexion 170 to 180 degrees, extension and adduction to 40 degrees, abduction to 140 and internal and external rotation to 50 degrees.
219Essentially, the diagnosis appeared to be an aggravation of underlying degenerative changes in the cervical and lumbar spine with what appeared to be the development of chronic pain and the potential capsular tearing of the posterior right shoulder. There was a potential small partial thickness tear of the rotator cuff, but, again, it was very difficult to ascertain whether that was an acute phenomenon and traumatic and, at this stage, the plaintiff had not had any cortisone injections.
220The aggravation of the spinal spondylosis and the shoulder tear was at least attributable to the fall and 0that had unfortunately been compounded by the plaintiff’s significant anxiety and depression.
221The prognosis was certainly complicated and guarded, only because of the concurrent psychological manifestation of severe chronic pain, depression and anxiety, which made the underlying rehabilitation options prolonged and problematic.
222The plaintiff would certainly benefit from a hydrodilatation.
Investigations
223At the hospital on the said date, the plaintiff had a CT scan of the brain, facial bones, chest and abdomen and whole spine. There was no cervical spine displaced fracture and no facet joint subluxation.
224An x-ray of the right shoulder in May 2019 revealed no fracture or dislocation and no degenerative changes were seen. On ultrasound, the biceps tendon was intact and there was no fluid present in the sheath. The supraspinatus, infraspinatus and subscapularis tendons appeared normal. The subacromial bursa was thickened, in keeping with bursitis. There was no bursal bunching.
225Following an MRI scan of the cervical spine in August 2019, it was reported there were minor posterior disc bulges at a few levels contributing to only minor canal narrowing. In the lumbar spine, there was minor disc disease at L4-5 and L5-S1, none causing any obvious neural impingement. There was no significant abnormality identified in the thoracic spine.
226Following the arthrogram of the right shoulder in December 2019, it was concluded it was a non diagnostic study due to contrast extravasation.
227An MRI scan of the right shoulder carried out in April 2020 was reported to show no evidence of a SLAP injury and no paralabral cyst. Truncated posterior labrum and the posterior joint ca0psule was torn. There was mild tendinosis of the supraspinatus tendon with areas of bursal surface frame.
Defendant’s medical evidence
Medical Panel Opinion
228In August 2023, the Medical Panel thought the plaintiff was suffering from a soft tissue injury to the right shoulder relevant to the claimed injury. In the Panel’s opinion an arthroscopic debridement and capsular labral repair was not currently appropriate as treatment for the said injuries.
Medico-legal
Dr Terry Saxby, consultant orthopaedic surgeon
229Dr Saxby first examined the plaintiff on 28 June 2019. At that time, the plaintiff was off work.
230The plaintiff then complained of ongoing lower back and right shoulder pain. His back pain bothered him when sitting or bending and his right shoulder pain gave him problems with overhead activities. These were variable in nature and did not require any oral analgesia.
231On examination, both shoulders had full range of motion, with 180 degrees of abduction and flexion. The plaintiff did report some pain with mid-range motion, but was able to lift his shoulders through this.
232The plaintiff suffered musculoligamentous strains of his cervical spine, lumbar spine and right shoulder as the result of a fall from a height. He had been treated appropriately. He made a gradual recovery, but still had some discomfort.
233In terms of the incident circumstances, the plaintiff said he fell from a ladder on his face and head. His orthopaedic complaints following the injury were neck, back and right shoulder pain.
234The diagnosis was soft tissue musculoligamentous cervical and lumbar spine, and right shoulder, consistent with the fall.
235He then believed the plaintiff could return to pre-injury duties and hours, but obviously it would be better for him to return on reduced hours and avoid climbing ladders in the initial stages. In the next month or so, he should be able to return to his full duties.
236On re-examination in October 2019, the plaintiff complained of ongoing neck and lower back pain, as well as right shoulder pain. He had difficulty with overhead activities and was having intermittent analgesia for his pain.
237The plaintiff had been off work since and apparently did not have a job to go to. He had only worked about a week on a trial program organised by Allianz, and he was not able to manage that work, as it was warehousing. He categorically denied working at any other stage.
238He believed the plaintiff suffered soft tissue injuries as a result of the fall and there was no evidence of any significant spinal problems. There was ongoing right shoulder pain. A recent MRI scan would appear to show some right rotator cuff pathology to a minor extent, but he was uncertain that was causing the plaintiff’s pain.
239The plaintiff should undergo a structured rehabilitation problem, noting there were obviously some concerning features about his progress. It would appear the plaintiff had suffered a significant injury, but there appears to be no real damage to his spine and, similarly, his shoulder, and the symptoms seem in excess of the clinical and radiological findings.
240He suggested a rehabilitation program in terms of physiotherapy to the right shoulder, but there were obviously some inconsistencies in the history and it was difficult to be certain about the reliability of the reporting by the plaintiff.
241The diagnosis was soft tissue injury, cervical and lumbar spine, associated with right shoulder soft tissue injury and possible partial rotator cuff tear.
242There was a clear history in terms of a fall, and this clearly would have caused some injury, but, at this stage, one would expect a complete recovery from this type of injury.
243From a physical point of view, the plaintiff should be able to return to his pre-injury duties.
244Based on the surveillance, he believed the plaintiff showed capacity for work and he could return to modified alternative duties, with some restriction to lifting and then gradually a build up over a reasonably short period, perhaps a couple of months, and he should be able to resume full-time full duties in perhaps a month or two.
245Given the inconsistency and the history, he was concerned about the plaintiff’s ability to return to work, although he thought he had a current capacity for work.
246There were several concerning features. The plaintiff’s presentation in the film was not consistent with his reported history and the ongoing slow recovery was also inconsistent with his understanding of the plaintiff’s injuries.
247In a supplementary report of December 2019, he believed the plaintiff had recovered from his soft tissue injury.
Dr Anthony Menz, orthopaedic surgeon
248Dr Menz first examined the plaintiff in June 2020.
249The plaintiff then said his neck pain on a good day was 6 out of 10 and on a bad day 8 to 9 out of 10. His lumbar pain on a good day was 5 out of 10 and on a bad day 10 out of 10. His right shoulder pain was about 5 out of 10.
250On examination, abduction and flexion were to 90 degrees, internal rotation 10 degrees, external rotation 80 degrees and extension 20 degrees.
251He thought the April 2020 MRI scan showed no significant pathology within the right shoulder. There was no tear of the posterior joint capsule, however Dr Dass seemed to think, in his letter, there was a tear. The plaintiff’s glenoid labrum was intact. There was some mild tendinosis, but no rotator cuff tear.
252As such, there was no indication for surgical intervention in the plaintiff’s shoulder and that had been confirmed by the surveillance video, which showed the plaintiff had normal function of the shoulder and therefore it required no further treatment. The plaintiff could return to full duties.
253On re-examination in October 2023, the plaintiff said his right shoulder pain was worse now. His neck pain was the same and his lumbar pain was variable. He had been having acute episodes of left leg pain, which Dr Menz felt was a non-pathological functional component of his ongoing symptoms. Overall, the plaintiff felt his lumbar pain was worse.
254The plaintiff was then working 30 to 40 hours a week at Battery World, not having treatment and taking Panadol, Panadeine Forte and Nurofen regularly. He rated his right shoulder pain as 7 to 8 out of 10, lumbar pain 5 to 7 out of 10 and neck pain 5 to 7 out of 10.
255On examination of the right shoulder, abduction was 90 degrees, flexion 110 degrees, internal rotation 20 degrees, external rotation 45 degrees and extension 10 degrees.
256The plaintiff suffered injuries to his lumbar spine and right shoulder in the incident. About ten months later, surveillance video revealed he had normal function of his spine and right shoulder, as he was working in a four-wheel drive shop, lifting heavy objects, working on cars and lying on his back working on cars. At that stage, the plaintiff could return to full work duties.
257He noted Dr Saxby’s view that the plaintiff’s complaints were disproportionate to the pathology, and Ms Boecksteiner thought there was no permanent disability and minor neck pain would respond to physiotherapy.
258The plaintiff would continue to complain of pain in the right shoulder disproportionate to the pathology. There was no traumatic injury on MRI scan to his right shoulder. His lumbar back pain showed minor age-related degenerative changes and any injury he had sustained in February 2019, should have resolved within three to six months.
259The plaintiff suffered a soft tissue injury to his right shoulder and spine, both of which should have resolved within six months. There was no explanation whatsoever for the plaintiff to have severe pain in his right shoulder and lumbar spine almost five years later, particularly in the presence of virtually no pathology found on repeated MRI scans.
260Clinical examination did reveal inconsistent signs.
261The plaintiff’s ongoing shoulder pain and poor range of movement were also functional in nature, considering the minor amount of aged-related degenerative change in his shoulder joint.
262At this stage, he would have expected the plaintiff to return to full duties and full function.
Findings
Compensable injury
263The defendant does not dispute the plaintiff suffered an injury to his right shoulder in the incident.[102]
[102] T83
264While initially the plaintiff’s focus, understandably, was on his significant dental issues, he was complaining of right shoulder pain by April 2019[103] and he underwent a right shoulder x-ray the following month.
[103] 10 April 2019 Dr Sabah Al Mulla “still having right shoulder and neck pain”
Diagnosis
265The preponderance of orthopaedic opinion is that there is no significant right shoulder pathology with the plaintiff suffering a soft tissue injury in the incident – a view shared by four of the five orthopaedic surgeons in this case.
266Dr Dass, treating orthopaedic surgeon, diagnosed a very mild soft tissue injury and a year post injury, would have expected the plaintiff to have improved to pre-injury levels. The arthroscope he suggested was diagnostic. He described the pathology as very mild.
267Dr Boecksteiner, the plaintiff’s other treating orthopaedic surgeon, thought there was a minor soft tissue injury. As at May 2021, she thought there was no permanent disability arising from the fall.
268The orthopaedic surgeons relied on by the defendant share these treaters’ view. Dr Saxby diagnosed a soft tissue injury to the right shoulder, possible partial rotator cuff tear from which the plaintiff should have recovered within months. Dr Menz also diagnosed a mild soft tissue injury of the right shoulder which should have resolved within months.
269Although counsel for the plaintiff placed great weight on the August 2023 opinion of the Medical Panel, which had included two orthopaedic surgeons, the Panel also thought the plaintiff was suffering from a soft tissue injury to the right shoulder. It did not provide any explanation why, in those circumstances, it concluded he sustained a very significant work injury which had been life changing for him, although commenting that medical support to date had been limited.
270A slightly different diagnosis of a potential partial thickness rotator cuff tear was made by Dr Chehata. The plaintiff’s GP, Dr McKenzie, is the only practitioner who thought the condition was significantly more serious than a mere soft tissue injury (supporting surgery). He diagnosed right shoulder supraspinatus and infraspinatus tendinosis, partial tear thickness articular surface tear at the insertion of the mid fibres of the supraspinatus tendon.
271Occupational physician Dr Horsley thought the plaintiff had developed a Chronic Pain Syndrome and, as at October 2023, continued to present with mechanical neck and back pain, not commenting specifically on his right shoulder or its prognosis.
Role played by psychological factors
272As I indicated during the hearing, I did not think a Meadows v Lichmore Pty Ltd[104] analysis was required in this case. There is no suggestion by any examiner that any organic shoulder condition has been overtaken by psychological factors. However, a number of examiners do consider psychological factors play a part in the plaintiff’s presentation. These must be excluded when considering the seriousness of any right shoulder impairment.[105]
[104][2013] VSCA 201; T103
[105] Section 325(2)(h)) of the Act
273In November 2019, treating orthopaedic surgeon, Dr Dass, thought the plaintiff’s prognosis was very guarded, given he also had mental health issues. Mental health issues relating to the injury caused him to be unable to comment on the effect of the injury on the plaintiff’s work or leisure activities. He considered the plaintiff may benefit from a psychological examination.
274As at March 2022, Dr McKenzie thought the plaintiff should have ongoing psychiatric help and in July this year, considered he still needs to see a psychologist and psychiatrist.
275The plaintiff told the Medical Panel in May this year that if he was not working, he spent his days in bed due to his low mood.
276In October this year, Mr Chehata thought the prognosis was certainly complicated and guarded only because of the concurrent psychology manifestation of severe chronic pain, depression and anxiety which makes the underlying rehabilitation options prolonged and problematic.
277When seen in 2022, Dr Horsley thought that the plaintiff would benefit from a further referral to his psychiatrist and a referral for counselling, noting his considerable anxiety and severe depression on testing. In October 2023, the plaintiff’s mental health issues had worsened since last seen and also there was mild suicidal ideation shown on testing.
Credit
278As Maxwell P said in Haden Engineering:[106]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[106](Supra) at paragraph [12]
279Further, I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors[107] that in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[107][2006] VSCA 254 at paragraph [14]
280Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to his credit.
281Counsel for the defendant submitted the surveillance film is demonstrable of a level of activity inconsistent with a major shoulder injury.[108] While the plaintiff told the Medical Panel he avoided using his right arm for activities of daily living and care, it was submitted the video showed otherwise.[109]
[108] T8
[109]T94
282Having indicated during the hearing that I had difficulty with the plaintiff’s evidence that when filmed at the workshop he was just hanging out with his friends,[110] counsel for the plaintiff submitted the plaintiff is “a bloke who likes fiddling with cars, he is in a workshop, his car is there ... Does that mean he is capable of consistent work?” It was submitted this was “a non issue” as his weekly payments were in fact reinstated.[111]
[110]T96
[111]T98
283Further, it was submitted the film does not show a capacity to do real work.[112] No-one can see what the plaintiff does behind closed doors.[113]
[112]T99
[113]T95
284In my view, the plaintiff’s explanation that he was “hanging out with friends” was not credible. The type of activities in which he was engaged go beyond simply keeping himself busy. If one was having their car fixed, they would not be given a key to open the workshop, they would not be spending extended periods in an area where visitors are not allowed, driving vehicles other than his own, driving a forklift – an activity which he says he finds traumatic – working on other peoples’ cars, lying working under a car and working overhead on someone else’s car, albeit briefly.
285Further, I consider the level of the plaintiff’s activities shown on film, performed with no apparent difficulty, was at odds with his presentation to various examiners and his evidence of his significant pain and right upper limb restrictions. I do not accept he avoids using his arm for various activities as he told the Medical Panel in May this year. He was shown using his right arm freely throughout the film.
286I do not accept the plaintiff holding a mobile phone in his left hand across his body or having his left arm slightly higher when working over head on a car shows a reliance on his left arm because of any difficulty with his right.
Pain
287In Haden Engineering,[114] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia what the plaintiff says about the pain (both in Court and to doctors).
[114] (Supra) at paragraph [11]
288The plaintiff deposed that he continues to suffer from ongoing right shoulder pain and has difficulty moving his right arm fully. The pain was worse with repetitive and overhead activities. He had lost strength in his right arm and had difficulty performing any heavy lifting.
289The plaintiff also deposed to ongoing pain and restriction in his neck and lower back and psychological injuries.
290In recent months, the plaintiff has variously described his right shoulder pain as intermittent – five to six times per week,[115] ongoing ache pain discomfort and weakness[116] and pain on the front and back of right shoulder which worsens with activity.[117]
[115] Dr Horsley - October 2023
[116] Mr Chehata - October 2023
[117] Medical Panel - May 2023
291While the plaintiff complains of a significant level of right shoulder pain at times, complaint of pain, even repeated many times does not establish the veracity of the complaint.[118]
[118] Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12 per Ross AJA at paragraph [46]
292This is not a case where the plaintiff suffers a continuous level of right shoulder pain.[119]
[119] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [48]
Range of movement
293The plaintiff’s range of shoulder movement has varied greatly on examination. There was significant restriction when seen recently by Dr Menz but a full range of movement when seen by Dr Saxby in 2019 and Dr Boecksteiner in February 2021.
294While the plaintiff says he avoids using his right arm, as he told Medical Panel, and complains of difficulties with a range of movements, this was not shown on the lengthy surveillance film.
295I do not accept that because of any problem with his right upper limb that the plaintiff would need to use his left hand to brush his teeth given what is shown on film and ability to work the full-time hours he presently does.
Treatment
296The evidentiary basis of the pain assessment would ordinarily comprise (inter alia) the following what the plaintiff does about the pain (example, medication, rest, seeking medical treatment).[120]
[120] Haden Engineering (supra) at paragraph [11]
297Treatment for the right shoulder has been conservative. During 2019, the plaintiff underwent shoulder investigations and was referred to two orthopaedic surgeons who suggested conservative treatment, with Dr Dass recommending an arthroscope for diagnostic purposes for which funding was denied – a decision with which the Medical Panel agreed.
298It appears there were other issues with funding, although the evidence in that regard is unclear. The plaintiff said after two or three physiotherapy sessions, he received a letter from Allianz “pulling the pin” on physiotherapy. This evidence seems at odds with the report from physiotherapist Anthony Frandina who saw the plaintiff from 2021 to May that year, in which he mentioned Allianz’s acceptance of the plaintiff’s medical and like expenses.
299For whatever reason, the plaintiff’s initial treatment may have been sub optimal as Dr Boecksteiner explained, and that as a result, he remained stiff and sore in 2021. She then recommended physiotherapy to restore range and strength to the plaintiff’s shoulder, arm and neck. However, she could see no permanent disability arising from this.
300There is no evidence that any delay in treatment has resulted in a permanent disability.
301Although the plaintiff says he takes Tramadol two or three times a week and last week he took 10 to 15 Panadeine Forte, when asked what he takes it for, whether his back, neck or what, he said it is” pretty much all the pain.” He gets pain in his neck, back and shoulder.[121]
[121]T63
Work
302Initially, leave was sought to bring proceedings for damages for both pain and suffering and loss of earning capacity. As the plaintiff was under 26 at the time of the incident, the provisions relating to a worker under 26 apply.[122]
[122] Section 325(2)(e) the Act
303However, having indicated I thought there was some difficulty with the economic loss application and a lack of evidence in relation thereto,[123] counsel for the plaintiff ultimately abandoned this application.[124] However, counsel submitted there were work related pain and suffering consequences.
[123] T2
[124] T6
304Counsel for the plaintiff submitted the plaintiff’s right shoulder injury limited the use of his right, dominant hand. To his credit, he has found himself work and worked hard, and had done his best.[125]
[125]T105
305It was submitted the plaintiff had made it plain in his evidence he had tried to get an apprenticeship as an electrician and did the best he could putting up with an unsuitable arrangement with Raj.[126]
[126] T105
306If it was not accepted that he would have obtained a trade as an electrician if not for injury, it was submitted the plaintiff had lost the capacity to do a full range of unskilled manual work.[127]
[127] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; T106
307While counsel for the defendant accepted that loss of a trade was a relevant pain and suffering consequence, it was submitted in this case, “it is ambitious and aspirational,” and there is no evidence to say the plaintiff could not work as an electrician, as it is not particularly physical. He has not really tried or attempted to do an apprenticeship.[128]
[128]T94
308As I indicated during the hearing, a loss of trade did not stand out in this case.[129] I had some concern as to whether an electrical apprenticeship was the plaintiff’s chosen career path.[130]
[129] T105
[130]T106
309The plaintiff had only worked for one week with the employer before the injury. The evidence is vague as to whether there was any form of arrangement for the plaintiff to undertake an apprenticeship with the employer as an electrician. There was no evidence of any attempt to transfer the two years served with Samson to the employer. Further, while the plaintiff said he had been studying to a management course to assist in future work as an electrician, there was no evidence of any attempt to enrol in a further course when that course became unavailable in 2018.
310There is little evidence as to what would be involved in work as an electrician. I am not satisfied that the plaintiff, had he chosen that career, would be unable to do the duties required because of any problem with his right shoulder.
311Further, I am not satisfied the plaintiff has lost the ability to do manual work to any significant degree due to his right shoulder.
312Although the plaintiff did not return to work until mid-2021, in late 2019, Dr Saxby thought he was fit to resume normal duties – a view shared by Dr Menz in June 2020 and the plaintiff’s treating orthopaedic surgeon, Dr Dass, in early 2020.
313Since mid-2021, the plaintiff has been capable of full-time work, some of which has been of a physical nature. Recently, he has been able to work up to 56 hours a week when working in two jobs. In his current job, he is earning the equivalent of $100,000 per year.
314Clearly on his current demonstrated capacity, the plaintiff is able to work in more than a part-time non-physical job, as his GP, Dr McKenzie, thought was appropriate, and he can lift items greater than Dr McKenzie’s limit of one kilogram.
315I am not satisfied the plaintiff’s capacity for employment has been significantly affected because of any right shoulder condition alone.
Peak Engineering & Anor v McKenzie[131]
[131] [2014] VSCA 67
316While a spinal impairment was included in the plaintiff’s Particulars of Injury, this application was abandoned at the commencement of the hearing.
317The plaintiff has deposed to significant neck and back pain in addition to his right shoulder complaints. He has also told examiners of his ongoing difficulties with his spine. His back pain was so severe in mid-2021 that he attended Werribee Mercy Emergency.
318The plaintiff’s spinal pain affects a range of activities, including his work, sporting pursuits and sleep.
319In Peak Engineering & Anor v McKenzie,[132] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[132] Ibid
320In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[133]
[133] At 1
321While there can be multiple serious injuries,[134] I must be satisfied the consequences of the compensable shoulder impairment itself are serious, excluding any other injuries or conditions.
[134] Dressing v Porter [2006] VSCA 215; Acir v Frosster Pty Ltd [2009] VSC 45
322In this case, taking into account all the evidence, I am not satisfied the consequences of any right shoulder impairment are serious as at the date of hearing.
323Accordingly, the application is dismissed.
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