Carbone v Toyota Motor Corporation Australia Limited
[2017] VCC 73
•17 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01568
| RON CARBONE | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 December 2016 | |
DATE OF JUDGMENT: | 17 February 2017 | |
CASE MAY BE CITED AS: | Carbone v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 73 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the right and left shoulder – substantial organic basis – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201 Peak Engineering & Anor v McKenzie [2014] VSCA 67; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr M Latham | Nowicki Carbone |
| For the Defendant | Ms M Britbart QC with Ms K Manning | Minter Ellison |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a team leader and, on or about 8 June 2010, he suffered an injury to his right arm and shoulder when lifting extremely heavy car doors (“the first incident”). On or about 2 April 2012, he sustained injury to his left arm and shoulder while opening a heavy bonnet on a car on a production line (“the second incident”).
2 This is an application for leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under ss(a) of the definition contained in s134AB(37) with the body function being principally the right, and also the left shoulder.[1]
[1]Transcript (“T”) 1
3 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, can fairly be described, at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
13Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to, and explain the conclusions reached in my judgment.
The Plaintiff’s evidence
14 The plaintiff is presently aged forty-three, having been born in August 1973. He is married with five children.
15 Having completed Year 10, the plaintiff did a year of a carpentry apprenticeship.[4] He next worked in May 1994 when he commenced work with the defendant on a full-time basis, working about 38 hours a week, together with about 10 hours’ overtime.
[4]T5
16 The plaintiff’s duties included, but were not limited to, fitting car doors and bonnets from production lines – a task involving repetitive, heavy lifting.
17 In around 2010, the plaintiff suffered a left inguinal hernia and underwent surgery in relation thereto.
18 In the course of his employment with the defendant, the plaintiff suffered injury to his right upper limb on 8 June 2010 (“the first date”), and his left right upper limb on 2 April 2012 (“the second date”).
19 Following his shoulder injuries, the plaintiff attended two work doctors, primarily seeing Dr Blaher. He then started to see his own general practitioner, Dr Chui Leong in Altona Meadows, who treated him in relation to both injuries.
20 In November 2010, the plaintiff was referred to Mr Richard Dallalana, orthopaedic surgeon, in relation to his right shoulder, and a partial tear of the supraspinatus tendon was diagnosed. Surgery was performed on about 22 September 2010 (“the first right shoulder surgery”).
21 Six weeks post that procedure, the plaintiff was referred for physiotherapy with Mr Molnar, whom he saw a number of times as part of his rehabilitation.
22 After the first right shoulder surgery, the plaintiff had two or three months off work, then returned to work on modified duties and reduced hours. He was subsequently able to return to full-time hours, but never able to return to unrestricted work at any time after the right shoulder injury.[5]
[5]It was agreed the plaintiff returned to modified duties in April 2011 and full-time restricted duties in August 2011.
23 In about mid April 2012, the plaintiff had an ultrasound of his left shoulder which he believed revealed problems with the supraspinatus tendon, similar to his right shoulder problems.
24 Later that month, the plaintiff had an ultrasound-guided cortisone injection to the left shoulder. He was referred to Mr Dallalana, who ultimately performed left shoulder surgery, namely an arthroscopic decompression and bursectomy (“the left shoulder surgery”), on 25 October 2012.
25 The plaintiff did not believe he had made a good recovery from that procedure and had ongoing left shoulder problems of a significant nature.
26 After the left shoulder surgery, the plaintiff had about eleven months off work and then returned to modified duties with restrictions on over shoulder use of both arms.[6] When he returned, he was in charge of ten employees as a team leader. During that time, the plaintiff had to fill in when someone was missing from the line. There was a labour shortage every day and he was never doing his team leader role.[7]
[6]T8; it was agreed the plaintiff returned to nine hours per week on 29 August 2013 increasing to 12 hours per week from January 2014
[7]T10; he was certified fit for 12 hours per week
27 The plaintiff worked until early 2014 before ceasing due to pain. When he actually left, he was only working 10 minutes to an hour a day. [8]
[8]T9
28 The parties agreed that the plaintiff was working between 9 and 12 hours per week leading up to the cessation of work in early 2014. Certificates to this effect were being provided for both the right and left shoulder.[9]
[9]T44
29 After the plaintiff ceased work in February 2014, Dr Leong certified him unfit for any duties until July 2015.
30 The plaintiff deposed that the pain and restriction of the right shoulder following surgery is the reason he stopped working and his employment was terminated. However, he gave different answers in the witness box as to why he stopped work with the defendant in February 2014, eighteen months prior to the second shoulder surgery.
31 The plaintiff initially agreed he stopped work because of his left shoulder, and the right shoulder only became more of a problem down the track, leading to the second right shoulder surgery.[10] In re-examination, he stated he ceased work due to pain his shoulders, especially the right.[11]
[10]T14
[11]T38
32 The plaintiff received a letter from the defendant in mid 2015 advising his job had been terminated due to his shoulders.[12] The letter dated 29 June 2015 set out that the plaintiff’s long term medical prognosis indicated that he was unlikely to be able to fulfil the inherent requirements of his role as a team leader with the defendant and that there were no suitable redeployment opportunities that met his medical restrictions.
[12]T38
33 Prior to termination of his employment, the plaintiff was involved with IPAR, whom he thought he had seen twice. He thought IPAR could not find him any work but suggested a computer course. The plaintiff advised he could not do the course as he could not sit for long because pain in both shoulders, the right being worst. He also could not sit for long due to pain and drowsiness from his medication.[13] He could try for an hour or so, but not longer.[14]
[13]T15
[14]T18
34 The plaintiff ceased seeing Dr Leong in early 2015 as he was not happy with the level of care being provided. He then commenced seeing a new general practitioner, Dr Sherriff in St Albans, in about mid-2015.
35 The plaintiff transferred from Dr Leong to Dr Sherriff, because Dr Leong told him she and her partners were not qualified to keep treating him under WorkCover. He thought Dr Leong referred him to Dr Sherriff.[15]
[15]T22
36 The plaintiff did not make a good recovery from the first right shoulder surgery and continued to experience significant ongoing problems. He underwent an MRI scan in May 2015, which he understood demonstrated a full-thickness tear of the tendon.
37 The plaintiff underwent further surgery to his right shoulder with Mr Dallalana on 25 June 2015 (“the second shoulder surgery”).
38 The plaintiff attended weekly physiotherapy with Matthew King and Luke Bagot at Symmetry Physiotherapy for treatment to both shoulders.
39 The plaintiff had regular hydrotherapy as part of his rehabilitation, but had not attended since the second right shoulder surgery, he no longer has active treatment by way of physiotherapy and hydrotherapy, as funding ceased in 2016. He does the exercises he has been shown; however, stretching both his arms at extremes causes an even greater increase in pain.
40 In about November 2015, the plaintiff started seeing a psychologist, Mr Karamanos, with funding having been approved for five sessions.
41 In December 2015, the plaintiff attended Dr Paul Verrills, musculoskeletal physician, for assessment for a pain management program. He was, in turn, referred to Dr Ford at Advance Healthcare in St Albans for that program.
42 The plaintiff attended the program twice a week for a month. During that time, he discussed his pain and his situation. Exercises he was given aggravated his pain, and he had to stop using a pulling machine which aggravated his right arm. His left shoulder “was not okay” but treatment focussed more on his more significant right shoulder condition. He also saw a psychiatrist as part of the program.[16]
[16]T25
43 The plaintiff saw Mr Dallalana in about early November 2015 for post-operative review. He indicated he did not need to see the plaintiff further and that he should simply pursue his rehabilitation program. He told the plaintiff whilst he was hospital that he had too much scarring and nerve problems and there was nothing more he could do.[17]
[17]T19
44 The plaintiff could not recall discussing with Mr Dallalana at that time that there had been an improvement since the second right shoulder surgery. It is not improving one bit; it is actually getting even worse.[18]
[18]T21
45 Some of the medication the plaintiff takes makes him drowsy and also gives him a sore stomach. He does his best to try and get through the day, taking the minimum amount that he can, but his bilateral shoulder pain becomes intense over the day and he suffers a fair bit.
46 Dr Sheriff has increased the plaintiff’s medication dosage over time. He takes two 30-millgram Lyrica a day, one in the morning and afternoon. He now takes one 200-milligram Celebrex, probably about 10.00am. He takes Panadeine Forte, two tablets at about 2.00pm, and he takes two Panadol Osteo three times a day — morning, afternoon and night. Either the Lyrica or the Celebrex makes him increasingly sleepy during the day.[19]
[19]T17
47 This drowsiness has persisted for the last couple of years, ever since the plaintiff stopped work.[20] It affects his ability to go about day-to-day activities a lot, both physically and mentally. He has discussed this situation with Dr Sheriff and whilst he does not want the plaintiff to take any more medication, Dr Sheriff has actually prescribed Panadeine Forte.[21]
[20]T29
[21]T28
48 In his first affidavit sworn in December 2015, the plaintiff described frequent severe pain in both upper limbs, exacerbated by lifting his arms over shoulder height and by lifting any object. He also experienced referred pain in the form of pins and needles, as well as aches in both his arms and hands. Further, he also started experiencing some neck pain.
49 The plaintiff would say now his right shoulder is worse than the left.[22] The intensity of the pain in both shoulders fluctuates; however, it is always present and, unfortunately, neither have recovered.
[22]T16
50 The plaintiff can sit for an hour or so, then the pain starts kicking in and he takes the tablets and starts to get drowsy.[23]
[23]T16
51 The plaintiff’s shoulder pain is not necessarily activity related. The pain is constant and bad.[24] Just sitting in the witness box, his shoulders felt really bad and he had a lot of discomfort. He pointed to the right shoulder joint where he had surgery. It is a lot worse than the left; however, even sitting quietly, he has left shoulder pain.[25]
[24]T18
[25]T19
52 The plaintiff’s sleep remains greatly affected and he has suffered through many sleepless nights, being unable to get comfortable sleeping on either side due to an increase in pain as a result of weight or pressure. Sleep deprivation has become a major problem and it affects his ability to function the next day. He finds he is grumpy and irritable and needs to get some rest during the day.
53 The plaintiff has found he has lost strength in both arms, particularly the right. Simple tasks, such as opening jars and washing his hair, have been affected by pain, as well as loss of strength. He dresses quite plainly and gets around in tracksuit pants.
Future work
54 The plaintiff has been a hands-on worker all his life, and the fact that he now suffers significantly as a result of pain in both arms and weakness, he is not sure what work he will be able to do in the future.
55 The plaintiff loved his job with the defendant, having worked there for more than twenty-one years. He would have stayed there until the end. He would describe himself as a workaholic, sometimes working seven days a week, doing twelve or fourteen hours as much as he could, to provide for his family. Work was close to home, life was good. He is only forty-three with five children and is uncertain of his future.
56 The plaintiff is embarrassed that he is not working, as he identified with his work. He does not tell people he no longer has a job, as he finds it humiliating, and his state of mind has also decreased. He has attended pain management and believes he has done everything that has been asked of him.
57 The plaintiff would rather be working and contributing to the family and making a living as he used to. He worked in a factory and worked with his hands. He does not have much by way of computer skills and the only job he has had for half of his life was working for the defendant. He is uncertain as to what he is capable of performing, and the constancy of pain in his shoulders makes life very difficult.
58 By virtue of his right shoulder injury alone, the plaintiff feels he is no longer capable of his employment. The work he has done over the years has needed him to use both arms and he relies on the use, thereof, of a single body function, which also makes him incapable of working.
59 The plaintiff does not believe he is capable of returning to any physical work by reason of his shoulder injuries. Taking into account his age, work history and the ongoing effects of the injuries, he believes his chances of obtaining any form of employment on the open labour market for which he is suited, by way of work history and experience, is negligible. He considered he had suffered a total loss of earning capacity by reason of his injuries.
60 The plaintiff has not received weekly payments for nearly two years. He has been living off his wife’s Centrelink payment and his redundancy package.[26]
[26]T27
61 The plaintiff would love to work, but due to the pain in both shoulders, especially the right, and the medication, he just does not know whether he can and he cannot see himself doing so. He would love to have a little go for one hour if he could even try that. As to the future, the plaintiff is taking it day by day. He wishes he was back to how he was, but he is not.[27]
[27]T30
62 The plaintiff agreed he spoke to Katrina from CoWork. He confirmed he told her that he felt at times like he was going to collapse while he was going for a walk. He got a dry mouth and a sore stomach. That is why sometimes if he did try to walk, he goes with one of his children for reassurance.[28] When walking, the plaintiff feels intense pain, especially in the right shoulder.[29]
[28]T32
[29]T33
63 The plaintiff can stand for a little while, but for probably no more than half an hour. It feels like he could fall because of the drowsiness caused by the tablets. He feels like that most of the time.[30]
[30]T33
64 When asked about training for a job that did not require over shoulder height work, the plaintiff explained he also has difficulty with below shoulder movement. He confirmed he had told doctors he had a problem lifting a cup of tea. This had been the situation since the second right shoulder surgery. He had a weak sensation that made him drop things — not all the time but basically most of the time. This stopped him doing a lot of things on an everyday basis, like putting his clothes. He finds a lot of things difficult. Giving evidence, his arms were in so much pain he could not bear it.[31]
[31]T35
65 The plaintiff has not applied for any job or looked for any work since leaving the defendant. He does not think he has a resume because he had been at Toyota half his life. He has tried to improve his left hand use as he is right handed however, he is “shocking with his left”.[32]
[32]T35
66 The plaintiff does not feel well enough to do a training course because of his shoulder pain which is extreme in the right.[33]
[33]T35
67 The plaintiff has not looked for work because of his shoulders and the pain. He does not know what work he is capable of doing, having done manual handling work with the defendant for twenty-one years.[34]
[34]T39
68 The plaintiff did not think he could work as a meter reader or a parking meter inspector. He would love to have a try, for an hour or so, but he could not do it any longer with the pain in his shoulders, especially his right, and the medication. He has not tried to work because of his limited tolerance and also drowsiness from his medication.[35]
[35]T36
69 In re-examination, the plaintiff said he did not really know what the duties of the suggested jobs involved. He would love to be working, but is not doing so because of his right shoulder — or both shoulders – but the right is the worst, and medication. If training courses were suggested, he was not against them. He would give them a go if they took a couple of hours.[36]
[36]T37
Activities
70 In his first affidavit, the plaintiff described difficulties getting mobile in the morning. He had problems with his arms when washing and brushing his teeth. His ability to undertake gardening and other domestic duties was restricted. He had become increasingly depressed as a result of the impact of his injuries on his life. His medication intake had diminished his cognitive functioning.
71 These problems persist. The plaintiff still goes shopping, with his wife and sixteen-year-old daughter doing the majority of tasks. He can do light shopping, but generally, avoids heavier tasks because of an increase of pain in both shoulders.
72 The plaintiff is no longer able to have a kick with his fourteen-year-old son, Josh. It is a struggle to play soccer for the plaintiff due to painful shoulders if he tries to run. His sixteen year old daughter ceased Jujitsu in part due to the plaintiff’s inability after the left shoulder surgery to get involved with her in the preparation and sparring. The last six years have been very difficult for the plaintiff watching his children grow up and missing out on activities with them.
73 Since the injury, the plaintiff has had two more children. The youngest are aged two and six months. Carrying his baby Mikayla caused increased shoulder pain so he no longer does so, a situation which upsets him very much.
74 The plaintiff is no longer able to do home maintenance and mow the lawn due to shoulder pain. Anything needed around the house has to be outsourced, which is another expense the plaintiff cannot afford.
75 The plaintiff still goes for walks, but not every day. He has a problem with walking due to the medication and the pain makes him drowsy, especially the pain in his right shoulder.[37] As soon as he walks, he starts getting vibration into his arm. He can walk a few blocks, maybe for half an hour or 45 minutes, even an hour.[38]
[37]T26
[38]T27
76 The plaintiff is only able to drive for about 20 minutes to half an hour. He takes his children to school sometimes and on trips not far away.[39]
[39]T25
Lay evidence
77 The plaintiff’s wife, Gordana, swore an affidavit on 29 November 2016. She and the plaintiff have been married since 1999, and have known each other since they were teenagers.
78 In the early years, the plaintiff worked incredibly hard and loved his working life with the defendant. He was good with his hands, having done carpentry, maintained the weatherboard house, carried out repairs, and also mowed the lawn.
79 The plaintiff worked long hours with the defendant and did overtime every chance he got, and earned great money.
80 Since the 2010 injury, the plaintiff’s ability to do things around the house has gradually diminished. He no longer mows the lawn. He can do light grocery shopping.
81 The plaintiff has been in pain for a long time now. He suffers with disturbed sleep because he cannot get comfortable, and wakes her many times during the night.
82 The plaintiff’s ability to assist with the small children, including bathing and feeding, has been affected. It is difficult for him to lift the children as they get older.
83 The plaintiff used to take the dog for a walk, but she now does because he does not want the dog to pull at his shoulder and cause him more pain.
84 The plaintiff’s demeanour has changed. Previously he was a very strong man with the mindset as a breadwinner and provider, but that has now disappeared. He was upset as the man of the house he was not providing for the family. Now there are seven of them, he felt like he was letting them all down.
85 The plaintiff had gone through mood swings, was easily agitated and it was very difficult, with a busy household, as well as two small children, to have his anger and frustration to deal with. He had always said he was happier working, because it gave him pride, and a sense of achievement that he had built a good life for his family.
86 The last child was unplanned and put more financial pressure on the family, which they would not have had to worry about if the plaintiff was working. Financially, they have gone backwards, because the plaintiff had made an excellent living. She would like to see him do some work. He had always worked with his hands and now had been left with two bad shoulders, no work, and no employer. She felt stressed and anxious for him, and their family was incredibly worried about where they would go from here.
87 She does as much as she can of the things that the plaintiff did around the house, such as gardening and lawn mowing, but she cannot replace the lost income or either one of his bad shoulders.
Medical evidence
Treaters
88 The plaintiff first attended Altona Super Clinic on 26 June 2010 for his right shoulder injury. Dr Leong first saw him on 22 March 2011 after surgery for that condition, and referred him for physiotherapy.
89 Dr Leong noted a second incident involving the plaintiff’s left shoulder and subsequent surgery. The plaintiff was advised for graduated work in terms of hours, and also to perform alternate duties.
90 The defendant wrote to Dr Leong on 31 October 2013 asking him to comment on the plaintiff’s suitability for alternate duties and the need for further treatment.
91 Dr Leong advised that restrictions were appropriate on the use of both shoulders and he was unsure as to whether the plaintiff would be likely to be able to fulfil the inherent requirements of his job in the future. He considered targeted occupational physiotherapy was appropriate.
92 In his January 2015 report, Dr Leong noted, unfortunately, the plaintiff did not recover from both shoulder injuries, despite surgery, had an intra-articular injection, physiotherapy and hydrotherapy. He was on paracetamol and Celecoxib, for pain relief.
93 From the clinical notes, Dr Leong thought the plaintiff had sustained injury to both shoulders at work, first injuring his right shoulder.
94 As of January 2015, Dr Leong thought the plaintiff was unable to do his pre-injury work due to persistent pain and reduced range of motion in both shoulders. He could do alternate work. Should he work, the plaintiff should not be doing any work above both shoulders and no repetitive work involving both shoulders. He needed continual physiotherapy and oral pain relief (paracetamol, Celecoxib and Lyrica).
95 The defendant’s medical officer, Dr Blaher, completed a medical practitioner questionnaire on 17 April 2012 relating to the left shoulder injury, also mentioning the ongoing right shoulder pain. Dr Blaher was then uncertain as to the prognosis, having seen the plaintiff once, and he was awaiting results of investigations.
96 On 25 October 2012, Mr Dallalana carried out a left shoulder arthroscopic decompression and bursectomy.
97 In a questionnaire completed in October 2012, Mr Dallalana set out that he expected the plaintiff to be fit for modified duties by mid December and full pre-injury duties by the end of January 2013. Further, the work restriction was to be a limitation on the use of the left arm.
98 In April 2015, Mr Dallalana wrote to the defendant advising that the plaintiff’s left shoulder would settle down and he was now in a position to go through the procedure proposed for the right side. At that stage, the plaintiff had ongoing issues with pain and weakness in the right shoulder due to rotator cuff tearing. He noted the plaintiff was approved for surgical correction last year; however, due to pain in his left shoulder requiring treatment, he could not have surgery at that stage.
99 As at May 2015, Mr Dallalana advised the defendant the plaintiff would require eight to ten physiotherapy sessions and could return to modified duties at six to eight weeks, post operatively, with the restrictions of no raising the arm above chest height and no lifting of more than a kilogram. It could be expected he could return to full duties in approximately three months
100 In his letter to Dr Leong of 11 August 2015, Mr Dallalana advised that the plaintiff presented six weeks post right shoulder surgery and he was suffering with significant pain over and above what was normally seen at that stage. There was, however, no restriction to movement, no frozen shoulder, no sign of infection or any other specific problem.
101 Mr Dallalana also noted the plaintiff showed some signs of nerve hypersensitivity across both shoulder girdles and certainly exhibited some features of chronic pain. Structurally the shoulders were in relatively good order, and Mr Dallalana felt as though a pain management specialist would assist in controlling the situation.
102 On 11 September 2015, Mr Dallalana wrote to the defendant to clarify the requirements of physiotherapy post operatively.
103 Mr Dallalana noted that he had assessed the plaintiff in the post-operative period and determined a lot of his pain was nonspecific and chronic in nature, and he would be assisted by a pain management specialist.
104 Mr Dallalana was not convinced that prolonged physiotherapy would solve the plaintiff’s pain issues and recommended alternate action. However, he could not discount that any further physiotherapy could be of some assistance to the plaintiff and this needed to be determined by independent assessment.
105 The defendant tendered Mr Dallalana’s most recent correspondence.
106 On 10 November 2015, Mr Dallalana advised Dr Sheriff that the plaintiff showed improvement that day, with active elevation to 90 degrees and a better rotational profile of the arm. He still had some discomfort, particularly into the hand, and that would be addressed by the pain management specialist in December.
107 Mr Dallalana advised, from his perspective, the plaintiff did not require any further appointments and should continue to recover further from his relatively minor structural shoulder injury. He noted the plaintiff had been approved for further physiotherapy, which may assist him a little further.
108 The plaintiff has been seen by Dr Sheriff since September 2015. On initial examination, Dr Sherif noted that the plaintiff presented in a rather depressed mood with bilateral shoulder pain, having suffered injuries to both shoulders.
109 The plaintiff’s medication included Lyrica, 300 milligrams; Panadol Osteo, two; Zoloft, 50 milligrams daily and Celebrex, 200 milligrams daily (he had become intolerant to this and other antidepressants).
110 Dr Sheriff commented that, in essence, the plaintiff appeared to have sustained injury to both shoulders. Since taking over his management, the plaintiff had progressed poorly, with poverty of shoulder movement and much more psychological impact. He thought the plaintiff’s injuries had had a devastating effect on his life and that he had no current work capacity.
111 Dr Sheriff noted the plaintiff had developed abdominal pain secondary to the use of analgesics and was made aware analgesic use should be kept to a minimum, as escalating use will only worsen his abdominal pain. Antidepressant therapy had been discussed on a few occasions and support was sought for a pain management program.
112 Dr Sheriff noted the plaintiff’s activities of daily living had been affected, and his wife helped him along. He slept poorly and interacted little. Social activities did not interest him. He wished he could work, but saw himself as useless and said he was not able to do even sedentary work.
113 Dr Sheriff referred the plaintiff to Dr Verrills, pain management specialist.
114 The plaintiff found he struggled to drive or reverse the car and had restricted himself to short drives. His affect was flat, he was depressed and pre-occupied by his physical disability and plight, and he often talked about his financial hardship. It was advised he continue with his gym program and keep as active as possible.
115 In his report dated October 2016, Dr Sheriff simply repeated the comments made in his report from the previous year and inserted his clinical note of an attendance on 12 October 2016:
“Pain shoulders, poor sleep, affected activities of daily living, his abduction is so restricted so is rotation right is bad, he does not engage in social activities, kind of recluse has lost his friends, he does not drink, does not smoke, says nights are bad as he lies restless looking at the ceiling he has coccygeal pain, can’t sit, goes for walks, nothing interests him in life needs a further ref to John Karamanos psychologist, can’t afford. To Ramzi. Tender coccyx, no fracture, dislocation? Pilonidal sinus incipient.”
116 Luke Bagot at Symmetry Physiotherapy most recently reported in July 2016.
117 Mr Bagot thought the plaintiff had developed chronic pain as a direct result of his injuries, with his pain management assessment showing eight out of fourteen features of neuropathic pain and fourteen out of seventeen features of central sensitisation.
118 Mr Bagot thought the plaintiff’s physical injuries were directly caused by his work and that his ongoing pain and disability are directly caused by these injuries, and his stress, anxiety and depression are a direct result of this pain and disability.
119 Mr Bagot though the plaintiff had no capacity for his pre-injury duties. Due to the severity of his symptoms and the likelihood they will be permanent, he has no capacity for physical labour of any kind. His pain currently limits his sitting to less than 20 minutes, writing or typing to less than 5 minutes and driving to less than 10 minutes, which leaves him with no capacity for sedentary office work.
120 Mr Bagot considered the plaintiff was unlikely to improve function with further physiotherapy but would benefit from ongoing medication and treatment with his psychologist.
121 Dr Ford, musculoskeletal physiotherapist and clinical director of Advance Healthcare, referred the plaintiff to Dr Verrills at the Metro Pain Group for multidisciplinary assessment in February 2016.
122 The plaintiff then reported the main problem as being the right shoulder. He described constant diffuse right greater than left shoulder pain rated at eight to ten out of ten.
123 It was concluded the plaintiff would likely benefit from a multidisciplinary pain management program over two to three times a week for eight to twelve weeks.
124 It was noted the plaintiff had eight out of fourteen possible features of neuropathic pain, indicating a moderate level of neuropathic pain as a significant barrier to recovery. There were, similarly, high findings in terms of central sensitisation.
125 Subjectively, there was a disproportionate non-mechanical unpredictable pattern of pain provocation in response to multiple, non-specific aggravating easing factors, pain persisting beyond expected tissue healing pathology recovery time, pain disproportionate to the number and extent of injury or pathology, widespread non anatomical distribution of pain and history of failed intervention, et cetera.
126 It was also noted, using the DSM-V, the plaintiff was diagnosed with an Adjustment Disorder with Mixed Depressed Mood and Anxiety in the context of his injury, and a persistent pain condition. He also reported high levels of pain-related catastrophising, low pain related self-efficacy and a strong avoidance type coping style.
127 As the plaintiff had stated he was unwilling to cease his current monthly psychology and due to the nature of his psychosocial problems, ongoing psychology would be recommended in parallel with the program.
128 The plaintiff undertook a four-week multidisciplinary program at St Albans. In a “Multi Disciplinary Pain Management Non Completion Report” dated 27 July 2016, it was reported there was unchanged pain level, unchanged functional activity levels overall, unchanged capacity to cope and manage his symptoms, struggling to attend the program due to financial issues, taxis not being reimbursed and not believing he could perform a low level exercise program in preference for passive treatment.
129 Based on the plaintiff’s review, Advance Healthcare recommended he be early discharged from the program with the following recommendations as to medication: Lyrica, 300 milligrams twice a day; Celebrex, 100 milligrams once a day; Panadol Osteo, 665 milligrams, six tablets a day; Panadeine Forte, 500 milligrams – 30 milligrams, three tablets three to four days per week.
130 It was also recommended there be a review of further rehabilitation options with the plaintiff’s general practitioner and review of his psychological symptoms.
Investigations
131 An x-ray of the right shoulder on 19 June 2010, demonstrated no abnormality.
132 A right shoulder ultrasound was also undertaken Examination of the supraspinatus showed a 13 by 8-millimetre diameter anterior marginal full-thickness tear. There was thickening of the subacromial bursa, but no impingement was evident on dynamic assessment.
133 There was an MRI scan of the right shoulder of 4 August 2010.
134 It was reported there were signs of supraspinatus tendinosis and partial thickness in-substance tearing at its insertion anteriorly.
135 There was an ultrasound-guided right shoulder steroid injection in July 2011.
136 There was an ultrasound of the left shoulder on 19 April 2012. Findings in the supraspinatus tendon were consistent with tendinosis and the tendon was swollen. There was also a 12 by 5 by 10-millimetre insertional fibre tear of the anterior aspect of the tendon involving the deeper fibres. The subacromial bursa was thickened anteriorly, and there was no function on abduction.
137 An ultrasound-guided left shoulder injection was carried out on 30 April 2012.
138 There was an MRI scan of the right shoulder organised by Mr Dallalana in May 2015. It was reported there was focal insertional tendinosis at the mid-half of the supraspinatus tendon, with a superimposed small irregular 3 by 3-millimetre essentially full-thickness tear at the insertion. There was evidence of previous acromial decompression surgery, with minor thickening of the subacromial bursa. There was no additional rotator cuff tear and muscle bulk, and signal was well preserved. There was mild tenosynovitis in the long head of the biceps tendon. There was mild degeneration of the superior labrum, with a small SLAP lesion at its face. There was no separation.
The Plaintiff’s medico-legal examiners
139 Dr David Kennedy, sports and industrial physician, examined the plaintiff on 11 July 2016.
140 The plaintiff then complained of a severe pain in the right shoulder joint with an average level of pain of nine out of ten and very limited movement in that joint. Persistent pain in the left shoulder joint could vary between two to eight out of ten, and there was some limitation of movement of that arm at the shoulder joint, particularly above shoulder height.
141 On examination, Dr Kennedy found tenderness over the anterior aspect of the GH joint and AC joint, as well as the rotator cuff tendon, worse on the right side. There was a significant reduction in active and active assisted range of motion in the arms at the shoulder joints, worse on the right.
142 Dr Kennedy noted the plaintiff had sustained damage to the rotator cuff mechanism with impingement in the subacromial subdeltoid space at the right and left shoulder joints following the incident.
143 Dr Kennedy then thought the plaintiff was unfit to return to his pre-injury employment or any alternative duties, such was the nature and extent of the persistent and ongoing problems involving both shoulders.
144 Dr Kennedy thought the plaintiff had significant restrictions with activities of daily living and, at times, required assistance from his wife for personal hygiene tasks. He was also quite restricted with his children’s social and recreational activities, and domestic activities involving load or stress on his arms at the shoulder joint.
145 Dr Kennedy thought the prognosis was poor and the plaintiff’s ongoing impairment would persist, and the effects on his activities of daily living, as well as social, domestic, recreational and occupational activities and pursuits, will be of a long-term nature.
146 Having been provided with the CoWork Pty Ltd report, Dr Kennedy advised that, with regard to the plaintiff’s right shoulder injury alone, he was not capable of any employment for which he had the appropriate education, skills, training and work experience, such was the nature and extent of the significant problems in the right shoulder joint for which he was undergoing further evaluation.
147 With regard to the left shoulder alone, the plaintiff was having less significant problems in the joint. He still had a pain that varied between two to eight out of ten, with limited movements of the left arm at or above shoulder height. Dr Kennedy thought the plaintiff would have difficulty in engaging in any occupational duties with regard to his left shoulder injury only, taking into account his education, training, background, occupational duties and skills experience.
148 With regard to both extremities as a single body function, the plaintiff was not capable of any employment, taking into account his education, skills, training and work experience, such was the nature and extent of the persistent and ongoing problems involving his cervicothoracic spine and both shoulder joints, worse on the right side, and the fact that the plaintiff was taking quite significant medication in the form of Lyrica, as well as Panadol Osteo, Panadeine Forte and Celebrex.
149 Dr Kennedy noted the plaintiff had had limited education skills, training and work experience, and most of his working life had involved more manual occupational duties involving the strenuous and repetitive use of his upper extremities. The plaintiff had quite limited computer skills, and if he was to engage in a sedentary occupation, he had had difficulty with any repetitive use of his upper extremities, particularly at or above shoulder height.
150 The plaintiff was examined by Dr David Weissman, psychiatrist, in July 2016. The plaintiff then told him he experienced pain in both shoulders, but much worse in the dominant right shoulder, and had a restricted range of motion in both. In the right upper limb, he had a throbbing pain all the way down to his right hand, and he also had pain in the right side of his neck.
151 The plaintiff was seeing psychologist, Mr Karamanos; however, WorkCover had ceased funding a couple of months earlier.
152 The plaintiff described his memory and concentration as “shithouse” and he was very forgetful. He had no leisure activities or hobbies. He was depressed and had pain and discomfort.
153 Dr Weissman thought, overall, the quality of the plaintiff’s affect was mild to moderately frustrated, tense, depressed and worried. The content of his thinking revealed mild to moderate mixed reactive depressive and anxiety symptoms, themes and features with pain and symptom focus. He was negatively thinking about himself in the future. There was pain and symptom focus.
154 Dr Weissman noted the plaintiff described his premorbid personality as someone who was very good, outgoing and a workaholic. It seemed he always placed large significance and importance on his work, and his inability to work since his injuries had been depressing, frustrating and worrying for him.
155 Dr Weissman diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity or severity. While the plaintiff definitely had some identifiable organic pathology in both shoulders, he probably also developed some symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition – a Somatic Symptom Disorder.
156 On purely psychiatric grounds alone, Dr Weissman thought there was probably no actual psychiatric capacity for work.
The Defendant’s medico-legal examiners
157 Dr Yong, specialist occupational physician, first examined the plaintiff in May 2013. The plaintiff then reported bilateral shoulder pain, with the left worse than the right.
158 Dr Yong noted the plaintiff had clinical features of right shoulder symptomatic supraspinatus tear requiring surgery over two years ago, with persisting right rotator cuff dysfunction, and a similar disability in the left shoulder requiring surgery seven months ago, with moderate rotator cuff dysfunction.
159 Dr Yong thought these conditions appeared to be complicated by features suggesting a psychological comorbidity which could impact on the recovery of the physical condition.
160 Dr Yong considered the plaintiff had a capacity for work, avoiding reaching tasks above shoulder height, firm pushing or pulling, and lifting more than 3 kilograms repeatedly.
161 Dr Yong noted, with respect to the right shoulder pre injury role, the plaintiff was working as a team leader, performing production line tasks for about two hours a day, filling in for other team members on break. Administrative tasks of a team leader involved running errands, updating information and providing support for the group leader.
162 Dr Yong thought the plaintiff had the capacity to do some of the tasks, but not the full pre-injury duties for both the right and left shoulder pre-injury duties.
163 The plaintiff was re-examined following the second right shoulder surgery in June 2015. He then advised there had been some improvement, but his symptoms persisted.
164 On examination of the right shoulder, there was no swelling but there was some tenderness. There was reduced movement and moderately severe reduction in power.
165 There was no atrophy or swelling in the left shoulder, and some tenderness. There was restricted movement and some reduction in power mildly.
166 Dr Yong thought the plaintiff’s post-operative rotator cuff dysfunction and deconditioning was moderately severe in nature. He considered there were some features suggestive of pain behaviour, noting the plaintiff had been referred for pain management. He thought there was mild to moderate left rotator cuff dysfunction. He considered the plaintiff’s condition had been complicated by a psychological comorbidity which was requiring ongoing treatment.
167 Dr Yong concluded the plaintiff’s current symptoms included bilateral shoulder pain, with the right worse than the left. There was reduced movement in the shoulders, with the right worse, and the shoulder pain radiated to the neck.
168 Dr Yong thought the plaintiff had a work capacity within the following restrictions:
§ significant reduction in working hours, such as working three, three-hour shifts for three days a week
§ avoiding reaching above shoulder height tasks
§ pushing or pulling or lifting more than 2 kilograms repeatedly.
169 The administrative tasks previously carried out by the plaintiff were considered suitable for him to perform.
170 Dr Yong provided a further report, having received the CoWork Pty Ltd report of September 2016.
171 Dr Yong thought the jobs of vehicle inspector and spare parts interpreter required individual assessment to determine whether they complied with the restrictions to determine their suitability. The roles of metre reader, parking inspector and radio despatcher involved minimal manual handling and were likely to comply with the restrictions and, thus, would be considered suitable. Initial working hours would be three hour shifts for three days a week.
172 Dr Yong provided a further report, having been provided with Dr Sheriff’s completed questionnaire of August 2016, in which he set out the plaintiff did not have a current capacity to participate in training because of both physical and psychological conditions.
173 Dr Yong would anticipate retraining would have minimal manual handling requirements and that retraining tasks were likely to comply with the restrictions and, thus, would be considered suitable for the plaintiff to perform.
174 Dr Yong anticipated operating a computer would have minimal manual handling in terms of training and would anticipate that would comply with the physical restrictions, and would be suitable for the plaintiff to perform.
175 Associate Professor Bruce Love, orthopaedic surgeon, examined the plaintiff in July 2014, before the second right shoulder surgery.
176 The plaintiff then described his major symptoms were over the anterior aspect of the right shoulder, with clicking and clunking. Sleep was affected and he had not found any specific measure that reduced his symptoms.
177 Professor Love thought the plaintiff had bilateral rotator cuff disease which had not resolved. He could not return to work in his pre-injury duties or hours, and could not work in alternate duties.
178 Professor Love thought the plaintiff did not have a current work capacity. He recommended a return to work be reviewed following the forthcoming surgery.
179 Professor Love was somewhat surprised that throughout the interview the plaintiff focused entirely on his right shoulder. It was not until the end of the interview, when asked if he had any other conditions, he mentioned his left and, indeed, mentioned he had had surgery.
180 Dr Gary Davison, occupational physician, examined the plaintiff on 29 August 2014.[40] The plaintiff indicated to him he was only there to be assessed for his left shoulder and was not prepared to discuss the right.
[40]Before the second right shoulder surgery
181 The plaintiff then complained of constant pain in the whole of the left shoulder, “in the guts of it”. The pain was worsened by working or by lying on it. Shoulder movements were restricted and he reported weakness of grip in the left hand and a loss of sensation in the whole arm. He also reported the presence of persistent pain in the right shoulder, which was significantly worse than the left.
182 Dr Davison noted the plaintiff demonstrated moderate pain behaviour during the interview and examination, as demonstrated by vocalisation, grimacing and clutching of the affected areas. He was, at times, a reticent historian and had a poor recollection of many details.
183 There was evidence of abnormal illness behaviour and it was difficult to accurately gauge the range of movement of the shoulders, and Dr Davison was not convinced the plaintiff was fully cooperating.
184 Dr Davison noted the plaintiff reported the presence of chronic pain and restricted movement in the left shoulder, the cause of which was not clear. At operation, the plaintiff only had a very small partial tear of the supraspinatus tendon due to chronic wear and tear and impingement, including bursitis. Dr Davison did not think that explained the plaintiff’s presentation and apparently significant impairment of shoulder function.
185 Dr Davison considered the plaintiff may have developed a chronic pain state or Pain Amplification Syndrome, or he may not be cooperating fully with the process. He was not sure.
186 Dr Davison thought there was no convincing evidence to suggest the plaintiff’s current presentation was the result of physical factors or structural abnormalities in the left shoulder and suspected his current symptoms related to non-physical factors. He was not convinced the employment was still a cause from a physical perspective.
187 In terms of the left shoulder, Dr Davison thought the plaintiff had a capacity for suitable employment and could return to modified pre-injury duties and hours of work.
188 Dr George Mendelson, psychiatrist, examined the plaintiff in August 2016.
189 The plaintiff told him he continued to experience constant pain in both shoulders, more severe on the right than the left. He also had difficulty moving his shoulders and had numbness involving the whole of both arms, more marked on the right.
190 The plaintiff told Dr Mendelson neither operation had been of any benefit and he argued with his surgeon after the second right shoulder surgery operation which, in fact, made his shoulder worse.
191 Based on the plaintiff’s history and Dr Mendelson’s observations on mental status examination, he considered the plaintiff did not have any diagnosable mental disorder and did not describe any emotional symptoms. While he was resentful and aggrieved, the plaintiff affect was not depressed and he did not manifest clinically significant anxiety.
192 In terms of his current emotional state, Dr Weissman thought the plaintiff had the capacity for gainful employment, and the overall prognosis was that of the plaintiff’s physical condition. He did not think he required any psychological treatment.
193 Dr Mendelson was provided with the CoWork Pty Ltd report and confirmed, insofar as the plaintiff’s current emotional state was concerned, he had the capacity for gainful employment within any restrictions, due to his current physical condition and given the history of surgery on both shoulders.
194 Dr Mendelson thought the plaintiff was not precluded by any psychiatric factors from working in the suggested positions, or becoming involved in a vocational rehabilitation program that would enable him to work in any of those positions.
Claim documentation
195 By letter dated 8 December 2014, the defendant advised the plaintiff that from 10 March 2015, he would be no longer entitled to weekly payments in relation to his right shoulder and left arm shoulder injury because he was not incapacitated for work. Weekly payments had been paid for a total of 130 weeks and the plaintiff was stated to have had a current work capacity.
196 This decision was based on Professor Love’s assessment in July 2014 and also the examination by Dr Davison, occupational physician, of August 2014.
Vocational evidence
197 CoWork Pty Ltd carried out a vocational assessment and provided a labour market analysis report dated 13 September 2016.
198 On interview, the plaintiff advised that the most he had walked was probably to a few houses down around the block. He could not walk far “because [he] would end up collapsing”. He could not lift anything and had lost sensation in his right hand.
199 The following jobs were recommended as suitable and potentially available to the plaintiff, namely:
§ vehicle inspector
§ spare parts interpreter
§ metre reader
§ parking enforcement officer; and
§ radio despatcher-fleet controller.
Overview - Right shoulder
200 The right shoulder impairment was the principal application and whilst reference was made to the left shoulder in opening, counsel for the plaintiff made no submissions in relation thereto.[41]
[41]T1
201 The primary submission on the plaintiff’s behalf was that he has a dysfunctional right shoulder that is organically driven.[42] As a result thereof, he has undergone extensive treatment including surgery and he has not recovered. There is no suitable employment identified. He is forty-three, a father of five and has lost a job he held for twenty-one years.[43]
[42]T83
[43]T84
202 Whilst it is accepted there was a compensable injury to the right shoulder, counsel for the defendant submitted a psychological reaction is responsible for many of the plaintiff’s present complaints. It was submitted the evidence was such that it is difficult to say any current symptoms are substantially organically based.[44]
[44]T3
203 In Meadows v Lichmore Pty Ltd,[45] Maxwell P set out the two step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[45][2013] VSCA 201 at paragraphs [21]-[22]
204 Counsel for the defendant also relied on paragraph 29 of that judgment where the Court said that when disentangling becomes necessary, the state of the medical evidence will largely determine whether it can be done -
“where at least some of the medical evidence suggests a significant psychological component, the evidence relied on by the applicant will need to be in a condition which will enable the court to clearly identify whether and to what extent the pain and disability has an organic basis. Unless the evidence enables that distinction or differentiation to be made, it will be difficult for an applicant to establish on the balance of probabilities that the organic basis accounts for pain and suffering consequences which satisfy the test.”
205 It was submitted that certainly at least some of the medical evidence suggested a significant psychological component – “in reality most of it did”.[46]
[46]T46
206 Counsel for the defendant relied on comments made by both the plaintiff’s treaters and medico legal examiners to this effect.
207 Treating general practitioner Dr Sheriff described the plaintiff as looking dishevelled and not coping. He discussed antidepressants with him and recently made a further referral to a psychologist.[47]
[47]T48; Mr Karamanos in late 2015
208 Whilst Dr Sheriff does not say the plaintiff’s shoulder pain is psychologically-based, his view that the plaintiff cannot work is based on both physical and psychological grounds.[48]
[48]T47
209 In his last letter of November 2015, treating orthopaedic surgeon, Mr Dallalana was optimistic that the plaintiff should continue to recover from “the relatively minor structural shoulder injury.”[49] In various earlier letters, Mr Dallalana noted that the plaintiff’s symptoms were over and above what he would have expected, and he would have expected the plaintiff return to even heavy manual work.
[49]T47
210 Counsel for the defendant submitted Mr Dallalana gave no organic explanation for the plaintiff’s level of pain finding no restriction of movement and no frozen shoulder.[50] He also mentioned features of chronic pain, noting that the plaintiff’s shoulders, structurally, were in relatively good order and he felt pain management would assist and would be of more assistance than physiotherapy. He described a lot of the plaintiff’s pain as non-specific and chronic in nature.[51]
[50]T50
[51]T51
211 On that last examination in November 2015, Mr Dallanana thought the plaintiff’s condition had improved and he had a good range of movement. He made no mention of the shoulder condition impacting on the plaintiff’s work capacity at that time.[52]
[52]T52
212 There is no report from Dr Verrills who saw the plaintiff at least twice following referral in October 2015.
213 Whilst Dr Ford, the director of the pain management program in 2016 thought there was a moderate level of neuropathic pain and high findings in terms of central sensitisation, subjectively, he considered there was a disproportionate non-mechanical unpredictable pattern of pain provocation in response to multiple, non-specific aggravating easing factors, pain persisting beyond expected tissue healing pathology recovery time, pain disproportionate to the number and extent of injury or pathology, widespread non anatomical distribution of pain and history of failed intervention, et cetera.
214 Further, Dr Ford noted that plaintiff reported high levels of pain-related catastrophising, low pain related self-efficacy and a strong avoidance type coping style.
215 Dr Weissman thought there was a formal diagnosis of a Chronic Pain Disorder or a Somatic Pain Disorder.[53]
[53]T63
216 In response, counsel for the plaintiff submitted that it was unusual for it to be suggested the plaintiff’s condition lacked an organic basis when he had undergone surgery for the relevant compensable injury.[54] It was suggested that to submit there was anything but an organic basis to the plaintiff’s presentation was not borne out by the evidence.[55]
[54]T69
[55]T73
217 It was submitted that Dr Sheriff’s suggestions for further treatment were consistent with an organic injury as he would not send the plaintiff to the gym or pain management if that was not the case. Further, the plaintiff was prescribed Lyrica for neuropathic pain in February 2014 whilst in the pain management program to treat an organic problem and he continues taking other prescribed pain killing medication.[56]
[56]T73
218 Counsel for the plaintiff also relied on the opinions of Dr Kennedy and Associate Professor Love’s that the plaintiff shoulder condition is organically based.[57]
[57]T70
219 Further, it was submitted that whilst Dr Yong thought there were some features suggestive of pain behaviour, he did not suggest the plaintiff was feigning his condition. He did not make any comments about the plaintiff’s motivation or that his condition was psychologically based.[58]
[58]T70
220 It was submitted Dr Davison’s opinion should be disregarded as he is the only practitioner who has diagnosed abnormal illness behaviour in circumstances where his examination preceded the second right shoulder surgery.[59]
[59]T71
221 Reliance was placed on Professor Mendelson’s view that the plaintiff did not have a diagnosable mental disorder, whether abnormal illness behaviour or functional overlay.[60]
[60]T71
222 As I indicated during the hearing, to suggest there was nothing but an organic basis was a somewhat adventurous submission on the part of counsel for the plaintiff.[61] In my view, there were significant non organic features present in both the plaintiff’s presentation in court, complaining of somewhat bizarre restrictions that cannot be explained medically, and also found by medico legal examiners and the plaintiff’s treaters.
[61]T74
223 Accordingly, I am not satisfied that the plaintiff’s shoulder condition has a substantial organic basis as at the date of hearing. Thus the plaintiff will need to take the next step and disentangle, separating the physical contribution to his pain and suffering and loss of earning capacity from the psychological consequences.
224 The plaintiff must establish that the organically based consequences of his right shoulder impairment alone are “serious”.
225 Counsel for the defendant submitted the plaintiff had not asked the question of the doctors that needed to be asked in order to discharge this burden. [62] Further, there was also a disentangling issue in relation to the left shoulder injury.[63]
[62]T59
[63]T4; Peak Engineering v McKinnon (2014) VSCA 67
Credit
226 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[64]
“… 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.”
[64](2010) 31 VR 1 at paragraph [12]
227 Counsel for the plaintiff submitted the plaintiff gave very frank responses which were unsophisticated, but there was no attempt to “obfuscate” any issues. It was submitted the plaintiff’s evidence that his shoulder injury impacted on his walking ability could be explained by the his medication intake.[65] Further, whilst surveillance was undertaken, no film was shown.[66]
[65]T81
[66]T82
228 Counsel for the defendant submitted the plaintiff presented as an unmotivated person, somewhat fixed in his ideas about his inability to work and inability to do anything. Whilst it was not suggested that he was actively lying, it was submitted that the plaintiff is so coloured in his perception of his physical capabilities that that impacts on his evidence about various matters such as problems with walking caused by his shoulder pain.[67]
[67]T60
229 In my view, the plaintiff was not a credible witness. I do not accept that as a result of his right shoulder condition the plaintiff has the level of pain and restriction that he describes, particularly in the absence of any organic explanation thereof by a medical practitioner. The most obvious examples of what I consider to be exaggeration by him were his difficulties walking, intense pain regardless of activity and a right hand weakness causing him to drop things.
230 Accordingly, when considering the consequences of any impairment in the present case, the objectively established evidence is particularly important.
Pain
231 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[68]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
…
… 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.”
[68](supra) at paragraphs [11] and [12]
232 The plaintiff now says his right shoulder is worse than the left. Bilateral shoulder pain fluctuates but is constant.[69] It is present whether sitting or standing, regardless of activity.[70] There is significant weakness in his right hand such that at times he cannot hold things.[71]
[69]T16
[70]T16
[71]T82; Counsel for the plaintiff conceded there was no medical opinion to this effect
233 Further, the plaintiff’s medication intake causes him significant problems with drowsiness. However, Dr Sherriff makes no mention of this problem that the plaintiff emphasised in his evidence.[72]
[72]T49
Treatment
234 The plaintiff has undergone shoulder surgery on three occasions, the most recent being the second right shoulder surgery in June 2015. He has not seen his surgeon Mr Raleigh since November 2015 when he was discharged with a good prognosis.
235 The plaintiff no longer has active treatment by way of physiotherapy and hydrotherapy, funding having ceased in 2016. Prior thereto he attended Symmetry Physiotherapy and he had regular hydrotherapy until the second right shoulder surgery.
236 In December 2015, the plaintiff attended Dr Paul Verrills, musculoskeletal physician, for assessment for a pain management program. He was, in turn, referred to Dr Ford at Advance Healthcare in St Albans for that program. The plaintiff made little progress in a four week trial and did not complete the program.
237 The plaintiff has been under the care of Dr Sheriff since mid 2014. He currently prescribes Lyrica, Panadol Osteo, Zoloft and Celebrex. This regime really started after the plaintiff stopped work in 2014.
238 In about November 2015, the plaintiff started seeing a psychologist, Mr Karamanos, with funding having been approved for five sessions. No report has been provided from this treater.
239 Whilst the plaintiff has undergone a range of treatment including two right shoulder operations, what was clearly an organic impairment at the time thereof could not be said to be so now as Mr Dallalana’s most recent examination in late 2015 confirmed.[73]
[73]T58
Work
240 The primary submission was that as a result of his organically-based right shoulder injury, the plaintiff had lost work capacity having been employed by the defendant in a manual role for twenty-one years.
241 Counsel for the plaintiff submitted that the evidence from the general practitioner was enough to support the proposition the plaintiff’s shoulder continues to be an organic issue and he has no capacity for suitable employment in accordance with the Act, as Dr Sheriff recently confirmed.[74]
[74]T77
242 Reliance was placed on the decisions of Acir v Frosster Pty Ltd[75] and Advanced Wire & Cable Pty Ltd & Anor v Abdulle[76] that, when a plaintiff has demonstrated a 40 per cent loss of earning capacity, pain and suffering follows.[77]
[75][2009] VSC 454
[76][2009] VSCA 170
[77]T77
243 As counsel for the defendant conceded, the plaintiff’s right shoulder condition results in an inability to work above shoulder height.[78] Dr Yong shared this view. However I consider, on an organic basis this is the only restriction on the plaintiff’s work capacity and would not preclude him returning to other work not involving demanding right upper limb work or over shoulder tasks.
[78]T58
244 As was apparent from both his viva voce evidence and his complaints to CoWork, the plaintiff considers he is significantly disabled and in effect has no capacity for any work.
245 Professor Mendelson described the perceived injustice the plaintiff felt and that was contributing to the perpetuation of his pain complaint.[79] As counsel for the defendant described, the plaintiff is conscious of there being some irreparable loss that his life will never be the same.[80]
[79]T64
[80]T65
246 In those circumstances, although having been employed by the defendant for over twenty years, the plaintiff has decided he will not be able to return to any work whatsoever. He has no intention of looking for work because of his injuries.[81] Further, he had refused to participate and engage in a discussion about future possibilities relating to work.[82] Accordingly, in my view, he has not discharged his onus under subparagraph (g) in terms of relation to retraining and rehabilitation.
[81]T65
[82]T66
247 Whilst Dr Sheriff thought the plaintiff was unfit to retrain, a view with which Dr Yong disagreed, Dr Sheriff based this opinion on both psychological and physical grounds.
248 The plaintiff has not established that on the basis of an organically-based right shoulder alone he has a serious injury in terms of loss of earning capacity or pain and suffering.
249 Dr Sheriff attributed the plaintiff’s incapacity for work to both his physical and the psychiatric complaints in his certificate of 19 September 2016 setting out “severe bilateral shoulder tendinosis with much psychosocial impact. He suffers from Chronic Pain Syndrome.” Clearly, there is no disentanglement in this document.[83]
[83]T60
250 Further, there is nothing from Mr Dallalana as to the plaintiff’s current work capacity. As of May 2015, he thought in about two months the plaintiff would be fit for modified duties with restrictions on the use of his right arm and the following month he expected the plaintiff to be fit for full duties.
251 In November 2015, Mr Dallalana simply stated that the plaintiff should continue to recover from his relatively minor structural abnormality and made no comment on any impact on his work capacity in relation thereto.
252 In January 2015, before the second shoulder surgery, Dr Leong did not preclude a return to work and thought the plaintiff could do alternative work not involving work above the shoulders, or repetition.
253 Dr Davison noted normal illness behaviour[84] and thought there was a current capacity for modified duties when he assessed the left shoulder only.[85]
[84]T62
[85]T63
254 Whilst counsel for the plaintiff conceded there was a lack of medical evidence as to the relevant issues in this application, it was submitted however that there was evidence that assisted the plaintiff.[86]
[86]T75
255 In these circumstances, counsel for the plaintiff referred to the balance of the evidence and relied on the views of Dr Kennedy, Dr Yong, and also Associate Professor Love in this regard.[87]
[87]T78
256 In July 2016, Dr Kennedy advised that, with regard to the plaintiff’s right shoulder injury alone, he did not have the capacity for suitable employment, given the nature and extent of the significant problems in the right shoulder joint for which he was undergoing further evaluation.
257 Whilst Dr Kennedy made no reference to non-organic factors in the plaintiff’s presentation, he did not have any recent report from Mr Dallalana and was therefore unaware of his views as to the plaintiff’s good prognosis as at the end of 2015. Further, he did not comment on the suitability of the jobs set out in the Co Work report.[88]
[88]T55
258 Given his expertise, I prefer the evidence of treating orthopaedic surgeon, Mr Dallalana, as to the plaintiff’s shoulder condition to that of Dr Kennedy, sports and industrial physician.
259 Dr Yong thought the plaintiff had a capacity for duties not involving reaching above shoulder height or lifting more than 2 kilograms repetitively, returning to work on a graduated basis. He considered the administrative tasks previously carried out by the plaintiff were considered suitable for him to perform.
260 In 2014, when Professor Love stated the plaintiff did not have a current work capacity, the plaintiff was awaiting the second right shoulder surgery.
261 Whilst the plaintiff is unable to do work above shoulder height or repetitive work over shoulder height in a manual fashion, I am not satisfied he has established that requisite loss of earning capacity of 40 per cent on a permanent basis.
262 The parties agreed the appropriate “without injury” earnings figure is $78,300.[89] Sixty per cent thereof is $46,980 or $903 per week.
[89]T67
263 The plaintiff’s work experience with the defendant involved a range of duties including administrative tasks and was not confined to manual handling. A number of suitable jobs were suggested by Co Work.
264 Dr Yong considered three of these jobs were suitable without qualification: meter reader, parking inspector and radio despatcher. He thought the role of vehicle inspector and spare parts handler may be suitable subject to individual assessment as to shoulder activities. He anticipated the plaintiff being able to work increased hours on a graduated basis.[90]
[90]T60
265 On all the available evidence, I am not satisfied that the plaintiff could not earn in excess of $903 per week on a permanent basis and he has therefore not established the requisite loss of earning capacity. Further, he has not discharged the onus under ss(g).
266 Whilst other consequences were deposed to by the plaintiff involving sleep difficulties, family problems and difficulties with household activities and driving, these were not the subject of submissions. In any event, alone or in combination with other claimed impairments, these are not organically-based consequences that meet the statutory test of “serious”.
267 The plaintiff has been unable to establish on the balance of probabilities that the organic basis of his right shoulder condition accounts for pain and suffering and loss of earning capacity consequences that are “serious”.
268 Accordingly, the plaintiff’s application in relation to the right shoulder and also the left are dismissed in relation to both pain and suffering and loss of earning capacity.
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