Cartes v Silcraft Pty Ltd
[2011] VCC 1502
•18 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01781
| CLAUDIO CARTES | Plaintiff |
| v | |
| SILCRAFT PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 and 27 October 2011 |
| DATE OF JUDGMENT: | 18 November 2011 |
| CASE MAY BE CITED AS: | Cartes v Silcraft Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1502 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury – right shoulder – left shoulder – loss of manual dexterity – pain and suffering damages – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms A.E.L. MacTiernan | Grace Placencio Davies & Company Lawyers Pty Ltd |
| For the Defendants | Mr D.R. Myers | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 22 April 2010. The plaintiff applies for leave pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant for the period commencing on 16 May 2000 to 24 February 2006.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering damages and loss of earning capacity damages.
3 The body functions which the plaintiff says have been lost of impaired are:
(a) the right shoulder; (b) the left shoulder; (c) loss of manual dexterity, as a result of the injury to both shoulders. 4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered the Plaintiff’s Court Book and in particular, the following pages: 1a to 1e; 30a to 30b; 32 to 64g; 204 and 205; 63 to 117b; 130 to 132; 145 to 147; 148 to 149; 150 to 158; 162 to 167; 187 to 192; 201 to 203; and 208 to 223. • The defendant tendered Exhibit 1, the Defendant’s Court Book, pages 1 to 17 and 23; and the Plaintiff’s Court Book, pages 101 to 103. 5 At the commencement of the application, Ms MacTiernan, on behalf of the plaintiff, announced that the serious injury application was brought in respect of paragraph of (a) of the definition set out for “serious injury” in sub- section 134AB(37).
6 Mr Myers, for the defendant, identified that causation was not an issue in respect of the shoulder injuries in this application. He stated that the application in respect of the shoulder injuries was a “range case”. Mr Myers submitted that the carpal tunnel injuries that the plaintiff suffered in his hands were not part of this application.
The Statutory Scheme
7 The application is brought under the definition of “serious injury” contained in sub-section (37)(a) of s.134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Sub-section (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
9 I am required by Section 134AE to give detailed reasons which are extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
10 The plaintiff was born in Chile on 22 September 1967. He is now aged forty- four years.[3] He was educated to Year 12 at a technical college in Chile. He was married at the age of nineteen years and migrated to Australia with his wife in May 1988.[4] He currently lives with his wife and two younger children in Narre Warren.
[3] Plaintiff’s Court Book (“PCB”) 33
[4] PCB 33
11 Upon arrival in Australia, the plaintiff worked in the asbestos removal industry and then as a machine operator for Unidrive. The plaintiff then obtained work as a spray painter 1989 with the first defendant. He continued his employment as a spray painter with the first defendant until 1993. From 1994 until 2000 the plaintiff worked in a number of areas of employment including an attempt at operating his own cleaning business.
12 On 16 May 2000, the plaintiff recommenced work as a spray painter with the first defendant. The plaintiff is not a qualified spray painter. He remained in that employment until he was terminated on 24 February 2006.[5]
[5] PCB 34
13 After the plaintiff had had surgery to both his left and right shoulders, he returned to work with Technicolour and then at ARB Corporation. He remained in employment at ARB Corporation until September 2007 when he ceased work due to left shoulder pain and right wrist pain.
14 In May 2008, the plaintiff commenced work with Advanced Wire & Cable Pty Ltd (“AWC”). His employment required shift work of fifty-four hours per week and he remained in that employment until October 2008. He was unable to maintain the hours worked at AWC and ceased his employment there.
15 In the years 2009 and early 2010, the plaintiff did a number of courses including a security course, a dental technician’s course and a laboratory assistant’s course. In April 2010, the plaintiff commenced employment with Nitro Security and shortly thereafter changed his employment to Makesafe Security. He works as a static guard at the Prahran Campus of Swinburne University. The plaintiff remains employed with Makesafe Security in the role of security officer. He gave evidence that he received a total of $43,000.59 for a forty-two week period. He agreed that his gross pay per week was $1,027.[6] Ms MacTiernan, on behalf of the plaintiff submitted that the plaintiff’s gross annual income for the year ending 2011 was $52,471.[7]
[6] Transcript (”T ”) 43, L26 – T 44, L1-13
[7] PCB 223
The Injury with the First Defendant
16 The plaintiff sets out the circumstances of his work in his affidavit sworn 3 December 2009. He states that the work required him to lift, whilst using the spray gun, weights of up to 20 kilograms. The lifting of the 20 kilogram weights was for the removal and placement of metal masks in order to allow him to spray paint components. Once the spray painting had been completed, the metal mask then had to be removed. He was required to lift the mask and, on occasions, place it in a position to be cleaned in a tank containing solvents. This was the work process that was in place at Silcraft Pty Ltd (“Silcraft”) for the whole of the period of his employment.[8]
[8] PCB 34 and 35
17 The plaintiff originally experienced difficulties with his right shoulder pain in mid-2003.[9] In December 2004, an ultrasound of his right shoulder diagnosed a full thickness tear of the supraspinatus tendon.[10] On 2 August 2005, the plaintiff had subacromial decompression surgery to his right shoulder.[11]
[9] PCB 35
[10] PCB 63
[11] PCB 76
18 By 17 October 2005, the plaintiff was back on full time modified duties. In November 2005, he began to develop left shoulder pains as a result of the repetitive duties and his attempt to protect his right arm.[12] On 8 February 2006, an ultrasound of his left shoulder diagnosed as small partial tear of the supraspinatus tendon.[13] On 24 February 2006, his position was made redundant. On 14 December 2006, the plaintiff had surgery on his left shoulder.[14]
[12] PCB 38
[13] PCB 67
[14] PCB 77
19 The plaintiff says that as a result of the two shoulder injuries that he has lost his ability to use his shoulders and arms above shoulder height and is unable to do manual labour. This restriction on his employment capacity eliminates any work in a factory or heavy industrial type employment, which was his normal area of work.
The Plaintiff’s Medical Treatment
The Right Shoulder
20 The plaintiff initially consulted Dr Carter of the Parkview Clinic in Narre Warren in December of 2004. He was referred to the Victorian Imaging Group for an ultrasound on his right shoulder. The ultrasound of the right shoulder took place on 7 December 2004. The result reported was:
“Full thickness tear of the supraspinatus at the insertion. The other tendons are intact. Minor fluid in the biceps sheath but the tendon is normal.
Conclusion: A full thickness tear of the supraspinatus.”[15]
[15] PCB 63
21 He was reviewed by Dr Ly, from the Parkview Clinic, on 8 December 2004. Dr Ly, general practitioner, concluded that the ultrasound of the right shoulder displayed, and he diagnosed, a full thickness tear of the supraspinatus on the right side. Dr Ly referred the plaintiff to Mr Simon Bell, orthopaedic surgeon, for examination and review of the right shoulder.
22 Mr Simon Bell, orthopaedic surgeon, examined the plaintiff on 26 April 2005. Mr Bell found that there was some pain and weakness on testing the supraspinatus tendon. Mr Bell then gave the plaintiff a cortisone injection to his right shoulder.[16]
[16] PCB 82
23 The plaintiff then was referred by Mr Bell to have an MRI scan of his right shoulder. The MRI scan of the right shoulder confirmed:
“1
Partial thickness/delamination tearing of the anterior and mid supraspinatus without definite bursal surface extension although there is a small bursal effusion.
2
Limited accuracy of the subscapularis tendon due to the shoulder position. There may well be a mild degree of subscapularis tendinopathy, given the abnormal borrow marrow signal at its distal insertion.”[17]
[17] PCB 66
24 On 2 August 2005, Mr Bell, orthopaedic surgeon, performed surgery on the plaintiff’s right shoulder. The operation was performed by arthroscope method to perform a subacromial decompression of the right shoulder.[18] The surgeon described the operation as including removing bursal adhesions anterior inferior corner of the acromion and divided the coracoacromial ligament.[19] The plaintiff returned to work originally on 31 August 2005 and was on full time modified duties by 17 October 2005.
[18] PCB 76
[19] PCB 79
25 On or about 22 August 2008, the plaintiff received an injection of Depo-Medrol to his right shoulder by Dr Leena Ayala. This injection took place at a time shortly prior to him terminating his employment at AWC on 30 October 2008.[20]
[20] PCB 91
26 Dr Leena Ayala of the Eastern Medical Clinic, general practitioner for the plaintiff, referred the plaintiff for an MRI scan of both shoulders in November 2008. On 14 November 2008, the MRI scan of the right shoulder reported the following conclusions:
“Findings are those of supraspinatus tendinopathy and a very small
insertional fibre tear anterior third fibres of partial thickness type.
Subscapularis tendinopathy.Fine tear anteriorsuperior glenoid labrum noted.”[21][21] PCB 74(a)
27 The MRI scan is the last procedural medical intervention for the right shoulder injury.
The Left Shoulder
28 The plaintiff complained of left shoulder pain developing in November 2005. This was after he had recovered from the right shoulder surgery performed by Mr Bell.[22]
[22] PCB 38
29 On 8 February 2006, on the referral of Dr Ly, the plaintiff had an ultrasound of his left shoulder. The finding of the ultrasound was that he had suffered a small partial tear of the supraspinatus tendon on the left side.[23] The last time that the plaintiff consulted with Dr Ly was 8 February 2006.[24]
[23] PCB 67
[24] PCB 80
30 On 10 February 2006, the plaintiff attended Dr Leena Ayala at the Eastern Medical Centre in Dandenong. He was referred to Mr Paul Cadero, physiotherapist, for treatment to his left shoulder.[25]
[25] PCB 87
31 He was made redundant at the first defendant’s place of employment on 24 February 2006.
32 Dr Ayala referred the plaintiff for further ultrasound of his left shoulder on 11 May 2006. The conclusion of that report was that there was: “unchanged partial thickness tear of the bursal surface of the supraspinatus”.[26]
[26] PCB 69
33 Dr Ayala then referred the plaintiff to see Dr Kathryn R Johns, consultant rheumatologist. Dr Johns notes that after his initial consultation with Dr Ayala, the plaintiff had been referred for physiotherapy and that his general practitioner had given him a steroid injection to the left shoulder.[27] Dr Johns injected the left subacromial bursa with Depo-Medrol 40 milligrams and 1 milligram of local anesthetic. He was advised to continue with his physiotherapy treatment.[28]
[27] PCB 201
[28] PCB 202
34 Dr Johns referred the plaintiff for an MRI scan of the left shoulder and this examination took place on 1 August 2006. The conclusion of the MRI examination was:
“Full thickness tear of the supraspinatus tendon on a background of
tendinopathy.
Anterio superior labral tear with a probable paralabral cyst, as well as subscapularis tendinopathy.”[29]
[29] PCB 70
35 The plaintiff underwent surgery by Mr Bell on 14 December 2006. The operation to the left shoulder by Mr Bell was to alleviate the symptoms of left shoulder rotator cuff degeneration with acromioclavicular joint arthritis. The operation was an arthroscope method to perform a debridement decompression and arthroscopic incision of the distal clavicle.[30] I note that Dr Bell mistakenly refers to this arthroscopic surgery to be to the right shoulder of the plaintiff in his report dated 24 April 2008.[31]
[30] PCB 77
[31] PCB 85
36 On 4 September 2007, the plaintiff’s general practitioner, Dr Ayala, referred him for a left shoulder ultrasound. The conclusion of the ultrasound was:
“The left acromio-clavicular joint appears unstable on ultrasound. X-ray correlation (with weight-bearing view) is suggested to further assess and exclude an underlying ligamentous disruption.[32]
[32] PCB 71
It is to be noted that the plaintiff ceased his work at ARB due to left shoulder pain on or about 12 September 2007. The plaintiff was at the same time suffering from right wrist pain.
37 On 14 August 2008, the plaintiff underwent an ultrasound to his left shoulder. The conclusion of the ultrasound for the plaintiff was that there was some minor subdeltoid bursitis with bursal bunching.[33] In that same month, the general practitioner, Dr Leena Ayala injected Depo-Medrol to the left shoulder of the plaintiff.[34] The final medical procedure for the plaintiff in respect of his left shoulder was an MRI scan performed on 14 November 2008. The following conclusions were made from the MRI scan:
“Supraspinatus tendinosis
Insertional tendinopathy changes
Very small articular surface partial thickness tear distal subscapularis.”[35][33] PCB 73
[34] PCB 91
[35] PCB 74(a)
38 The plaintiff has been reviewed by Mr Rodney Dalziel, orthopaedic surgeon, in February 2009. Mr Dalziel does not recommend any further surgery for the plaintiff. The plaintiff’s ongoing medical management for his left shoulder symptoms has been managed by Dr Ayala, his current general practitioner.
39 The plaintiff has had concurrent treatment for right carpal tunnel syndrome in his wrist. The EMG studies for his right wrist date from 24 January 2005 to December of 2008. On a fair viewing of the plaintiff’s medical position, he has had a continuing right wrist problem during the course of that time up until now. The plaintiff’s evidence on that issue was that the wrist would not stop him from working in a factory situation.
The Expert Medical Opinions
40 Dr Trung Ly prepared a medical report dated 15 March 2006 in respect of the plaintiff. The plaintiff first attended Dr Ly on 8 December 2004 as a result of his work injuries.[36] The plaintiff last attended Dr Ly on 8 February 2006.[37] Dr Ly agrees with the diagnosis of a full thickness tear of the supraspinatus tendon in the right shoulder. He also agrees with the diagnosis of a small partial tear of the supraspinatus tendon in the left shoulder. He noted that in 2006 that:
“… effort needs to be made, that no aggravation of his symptoms should
occur through inappropriate work tasks.”[38]
[36] PCB 78
[37] PCB 80
[38] PCB 80
41 I note that Dr Ly’s report is very dated at this time. However, he gives a consistent history as disclosed by Mr Cartes in this application. Dr Ly was of the view that the carpal tunnel symptoms in the right hand had been improved by the surgery undertaken in June 2005. Dr Ly’s opinions do not assist the Court in determining the state of the plaintiff’s symptoms at the time of determination.
42 Dr Leena Ayala is the current general practitioner for the plaintiff. Dr Ayala took over the care of the plaintiff in February 2006 and remains the general practitioner. I have regard to all the reports of Dr Ayala as they give an ongoing history of the treatment from 2006 to the present time. However, in terms of assessment of the plaintiff’s current condition, the report dated 14 February 2011, is of the most assistance. Dr Ayala stated as follows:
“His level of impairment is moderate and restricted to both shoulders, arms and wrists. To be able to continue performing his current job as a security guard, he needs to follow some work duties restrictions: to avoid repetitive use of both arms and hands including pushing and pulling, avoid lifting over 3 kg, especially if repetitive, and to avoid duties that require arm elevation above shoulder level.”[39]
[39] PCB 100(a)
43 Dr Ayala finds that the physical conditions and symptoms for the plaintiff are permanent in the sense that they are likely to continue for the foreseeable future.[40] It was clearly Dr Ayala’s opinion that the plaintiff could never return to his pre-injury duties.
[40] PCB 100A
44 In a later report dated 29 September 2011, Dr Ayala had been asked to differentiate between the left shoulder, the right shoulder, and both shoulders considered together, but excluding the right carpal tunnel syndrome. Dr Ayala, in her report, states that each of the shoulders taken separately incapacitate the plaintiff from his pre-injury duties and restricts him to light duties-type employment, such as a security guard.[41]
[41] PCB 100(c)
45 Dr Kathryn Johns, a consultant rheumatologist, has also treated the plaintiff. In a report dated 2 June 2006 sent to the general practitioner, Dr Ayala, Dr Johns sets out her injection treatment to the left shoulder. At that time; i.e. 2006, she said that the plaintiff was unable to perform taxi driving duties or a courier as he would need to use his arms and lift bags in and out of the car.[42] This opinion is very outdated but fits consistently with the level of incapacity that the plaintiff now endures.[43]
[42] PCB 202
[43] PCB 202
46 Mr Simon Bell was the orthopaedic surgeon who had performed the operations on both of the plaintiff’s shoulders. The operation for the right shoulder was performed on 2 August 2005.[44] The operation on the left shoulder was performed on 14 December 2006.[45]
[44] PCB 76
[45] PCB 77
47 When reporting on the outcome of the right shoulder surgery, Mr Bell stated as follows:
“When last seen by me, he required a gym program to improve his muscle strength. The long term prognosis should be good. There was no major damage to the rotator cuff and the shoulder should recover satisfactorily. The cause of the myofascial pain type of problem is a little more difficult to predict. When last seen by me, the injuries had not stabilised.”[46]
[46] PCB 83
48 In his report dated 24 April 2008, Mr Bell stated that he had performed surgery on the plaintiff’s right shoulder on 14 December 2006. Mr Bell is clearly mistaken in his report. In his opinion section of that report, he states as follows:
“Since my previous report, Mr Cartes has had arthroscopic surgery for the right shoulder with good result. He has had one further consultation by me with an aggravation of the left shoulder which, by the time he saw me, had resolved entirely. Therefore when last seen by me he had normal function of both shoulders and required no further specific treatment.[47]
[47] PCB 85
49 This opinion is somewhat confusing, given the fact that the right shoulder is the first one operated on. The opinion set out in the report dated 24 April 2008 does not refer to any surgery taking place to the plaintiff’s left shoulder. In fact it was performed by Mr Bell on 14 December 2006. The operation note of 14 December 2006 sets out the nature of the surgery.[48] In any event, these reports predate the ultrasound of 14 August 2008, the injections to the shoulders which occurred in August of 2008, and the MRI scan which was performed on 14 November 2008. In short, Mr Bell’s opinions are not based on the most up to date and accurate histories to be given by the plaintiff nor the radiology reports and in my view do not assist the Court in assessing the level of disability of the plaintiff at this time.
[48] PCB 77
50 The plaintiff was referred to Mr Rod Dalziel for review and assessment. Mr Dalziel’s opinion was that the shoulders were mechanically satisfactory but noted that the MRI scan indicated that he suffered from minor changes of insertional tendinopathy and tendonitis of the supraspinatus. This related to both shoulders. Mr Dalziel went on to state:
“I do not think, however, he should attempt to be a Machine Operator or Spray Painter, as he is clearly developing symptoms related to that physically hard work. He is looking towards working as a Security Guard which is much more in keeping with his body type.”[49]
[49] PCB 192
51 Mr Kevin King, consultant orthopaedic surgeon, assessed and prepared reports on a medico-legal basis for the plaintiff in this matter. Mr King found that the plaintiff was an impressively clear and detailed and straight forward historian.[50] Mr King related the shoulder and wrist symptoms to the plaintiff’s work at Silcraft Pty Ltd. When asked to determine a “split” of liability, he thought that ninety per cent of it related to the Silcraft time and ten per cent of it related to an aggravation in the time that the plaintiff worked for AWC. I find that the predominant cause of the shoulder injuries to the plaintiff is his working period at Silcraft Pty Ltd. In Mr King’s opinion, he noted that:
“He would appear to be permanently unfit to return to old, heavy, repetitive machine operating jobs and spray painting work of the type that he had done from 1988 onwards.”[51]
[50] PCB 109
[51] PCB 111
52 Mr King’s opinion was that the light job of a security guard was the right type of employment into the future as far as the plaintiff was concerned.
53 Mr King stated that the plaintiff had exhibited classical signs of bilateral rotator cuff lesions of mild to moderate severity. He noted that all movements of both shoulders are limited by pain and spasm.[52]
[52] PCB 115
54 In concluding his opinion, Mr King stated that:
“My overall impression is that he is a sensible well motivated man who has found for himself a suitable light job as a night watchman in a security firm, he can manage these light duties without trouble and should be able to do this job for the foreseeable future as long as it is available to him.”[53]
[53] PCB 116
55 Mr King stated that the condition of the plaintiff is permanent.
56 On the issue of whether the carpal tunnel symptoms and injury impacted on the plaintiff to the extent “overshadowing any symptoms in the shoulders”, Mr King said as follows:
“The mild residual symptoms in the form of tingling and pain in the right wrist and in the right hand (similar mild symptoms in the left hand) would probably not prevent him doing such work if it were to be made available to him - this is all very theoretical and I cannot be more specific.”[54]
[54] PCB 117(b)
57 The defendant referred the plaintiff to Mr Brendan Dooley, orthopaedic surgeon, for examination and assessment. In his report dated 13 June 2007, Mr Dooley noted that the plaintiff only had minor problems with his right and left shoulders. He noted that the right shoulder was better than the left shoulder.
“He takes no medication and receives no ongoing physical treatment for
his arms.”[55]
[55] Defendants’ Court Book (“DCB”) 2
58 Mr Dooley did note that in the plaintiff’s right shoulder there was mild muscle wasting particularly of the supraspinatus and infraspinatus muscles. In his final opinion, Mr Dooley stated as follows:
“Finally, I believe the prognosis for the injury sustained is good. He could possibly sustain recurrences of the conditions affecting both arms, should he return to heavy repetitive work, involving heavy use of both arms.”[56]
[56] DCB 5
59 It is interesting to note that Mr Dooley’s opinion, which is dated 13 June 2007, was truly predictive of what in fact happened in respect of the plaintiff. In September 2007, the plaintiff ceased work at ARB because of left shoulder pain and also right wrist pain. The plaintiff subsequently commenced work at AWC and also had to terminate that employment because of the heavy work. I find that Mr Dooley’s assessment in 2007 was accurately predictive of the condition and the position the plaintiff now finds himself with his shoulder injuries.
60 Mr Jonathan Hooper, orthopaedic surgeon, also assessed and reviewed the plaintiff on behalf of the defendants. Mr Hooper noted that the left shoulder was worse than the right shoulder in respect of the plaintiff’s symptoms. Mr Hooper noted that the plaintiff would be unable to do heavy work or work that involved lifting above shoulder level.[57] In the later report, dated 28 February 2011, Mr Hooper took a history from the plaintiff that his left shoulder continued to bother him and is more troublesome than his right shoulder. He said activities made things worse. He noted that there was not any treatment at the present time and he is not taking any medications.[58] Mr Hooper, after examining the plaintiff made the following findings:
“This man has capsulitis in both shoulders together with cuff pathology. He has been treated surgically, but he continues to complain of pain in both shoulders which has prevented him doing his usual work as a spray painter.”
…
The diagnosis is capsulitis with cuff pathology in both shoulders, the left worse than the right.
…
His situation will not improve but I do not believe his condition will
deteriorate …
…
The capsulitis in this man’s shoulders will continue to cause him discomfort.”[59]
[57] DCB 8
[58] PCB 10
[59] DCB 11
61 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff on behalf of the defendants. The thrust of his report and opinion is that the carpal tunnel syndrome complained of by the plaintiff is not related to his work. Mr Stapleton noted in his report as follows:
“His activities of daily living so far as gardening and repetitive activities, are affected by, particularly, the nerve compression of his right hand. He has got a good range of shoulder joint movements on both sides, but his shoulder movements at the extremes are uncomfortable for him.”[60]
[60] DCB 14
62 Dr Stephen Tham, hand surgeon, has reported in respect of the plaintiff. His reports are directed to the plaintiff’s solicitors. Mr Tham’s opinion is that the carpal tunnel syndrome experienced by the plaintiff is not directly related to his work. In respect of this application, Mr Tham’s opinion is limited to the injury of carpal tunnel syndrome and is not of great assistance to the Court in assessing the seriousness or otherwise of the left and right shoulder injuries to the plaintiff.
63 In summary, the preponderance of medical opinion is that the plaintiff suffers from left and right sided rotator cuff injuries. The doctors rate the effect of those symptoms as being between mild and moderately severe. The plaintiff has undergone two separate incidents of surgery for his shoulders. The plaintiff has had three sets of injections to the shoulders to alleviate his pain difficulties. The plaintiff has had eight sets of radiological examinations to determine the extent and nature of his injuries.
The Consequences
64 I have read the affidavits of the plaintiff sworn 3 December 2009, 3 March 2011 and 6 April 2011.
65 I have considered the evidence given by the plaintiff and in particular his answers under cross-examination by Mr Myers.
66 The plaintiff struck me as a straightforward person who gave a good account of himself and the consequences of the injuries on him.
67 I find that the consequences which I am satisfied the plaintiff has suffered as a result of the injury to his right shoulder and to his left shoulder are as follows:
(a) Medical Treatment 68 The plaintiff has received extensive medical treatment in respect of the injury to both his left and right shoulders. I have outlined this treatment in the heading previously in these reasons. The fact that the plaintiff has been subjected to such a level of medical intervention is and has been a considerable consequence for him.
(b) Pain
69 The plaintiff gave evidence that he suffers from pain when his arms are elevated. When challenged about the statement that he cannot keep his arms elevated for long periods of time, he gave an example of changing a light bulb at home. He said that he could change the light bulb but in doing so it caused him pain.[61]
[61] T 37, L19 – 31
70 The plaintiff also gave evidence that he had difficulty washing his hair because of the pressure required to do that. He also stated that he did not do any of the vacuuming in the house, although the setting for that was that he stated that any activity caused pain or increased pain in the shoulders.[62]
[62] T 38, L10 – 17
71 As previously noted in the expert medical opinion section of these reasons, the doctors accept that the plaintiff does suffer pain at the extremes of movement through both of his shoulders. It has also been noted and the plaintiff complained of having pain in his shoulders when either lying on his arms, or moving them above his shoulders. I accept this limitation of movement and pain combined is a very considerable consequence for the plaintiff.
(c) Work
72 The plaintiff now cannot do the previous production type work he had done in the past. All of the medical opinion is in agreement that he should not return to heavy production type work which involves repetitive use of his shoulders and lifting or pulling significant weights. The loss of his ability to work in production type employment is a very considerable consequence for the plaintiff as he is someone who exhibited a very good work ethic and is frustrated by the fact that he is limited to security type work due to his injuries.
73 The plaintiff clearly indicated by his return to work, immediately after his right shoulder surgery, that he was a keen and dedicated worker. He worked in similar type heavy work until such a time that his left shoulder gave way. He had surgery to repair it. The work he performed at AWC is a clear indication that he was prepared to work and wanted to work but the injuries overcame him.[63]
[63] T 29, L17- 29
74 In conclusion, the plaintiff has an inability to work in what he perceives to be appropriate employment as a result of injuries to both shoulders and that is a very considerable consequence for him.
(d) Guitar and Garden
75 The plaintiff gave evidence that he was unable to enjoy his hobby of playing of the guitar. He does not play it very much now because of the injury to his shoulders. In his evidence, he stated as follows:
“Q: Is that because of your hand?--- A: The shoulder, because the way we hold the handle, in such a
position, it caused pain. A burning sensation increase.Q: What about the right hand?--- A: Yeah, it would also increase. If I - I mean, it’s all about how much
you do it.”[64][64] T 42, L16- 24
76 The plaintiff’s evidence was clearly saying that because of his shoulder injuries, in particular his left shoulder, made it difficult to hold up the guitar and basically he had stopped playing as a result of the symptoms.
77 The plaintiff was also questioned about the reason for him not doing the gardening.
“Q: Is the reason why you do minimum gardening and so on now
because of the hand pain?---A: No, it’s because the shoulders. Q: You see, you say this, ‘I continue to have pain in both shoulders. The left shoulder pain is worse that (sic) the right shoulder pain. There is also a burning sensation in the top of the muscle in the left arm. The pain in the right wrist is in the front and back of the wrist. At times there is numbness in some of the fingers. The pain increases with all activities, including cleaning, cooking and gardening. I do minimum in the garden now and I try to avoid lawn mowing.’ Correct?--- A: Correct. Q: ‘My teenage son, Danilo, also mows the lawns.’ Before I was saying that the wrist pain and the hand pain caused you problems with the gardening and so forth, do you agree?--- A: Yes. Q: So is that the problem, really that’s why you’re not doing as much
gardening as you would normally do?---A: No. The reason is because if I go and do all my – by myself, I will experience increased pain in my shoulders, especially the left one.”[65] [65] T 41, L14 – T 42, L3
78 I conclude that the plaintiff’s main reason for limiting his gardening is the result of the injury to the right and to the left shoulder. This limitation on his activities at home is a very considerable consequence for him.
79 In conclusion, I find that both the left and right shoulder injuries and the combination of the two, all taken separately, have resulted in very considerable consequences for the plaintiff in his ability to enjoy his life and daily activities of living. The consequences are more than significant or marked.
Loss of Earning Capacity
80 The plaintiff must satisfy the narrative test required under the act to obtain leave in relation to loss of earning capacity and then must also establish that:
(a) at the date of hearing, he has a loss of earning capacity of forty per cent or more pursuant to Section 134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently: pursuant to section 134AB(38)(e)(ii). 81 The measurement of loss of earning capacity is set out in sub-paragraph (f) of Section 134AB(38) which requires a comparison between:
(i) “without injury” earnings; (ii) “after injury” earnings. 82 The former must be calculated by reference to the six year period specified in Section 134AB(38)(f).
83 “Without injury” earnings consist of the gross income “expressed at an annual rate” that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from person exertion, had the injury not occurred.
84 It is to be calculated by reference to that part of the period within three years before and three years after the injury as mostly fairly reflects the worker’s earning capacity.
85 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing to the requisite standard of the criteria in sub- paragraphs (e), (f) and (g) of Section 134AB(38).
86 It was agreed between the parties that the “without injury” earnings figure in this case was $77,241 gross per annum.
87 In the course of submissions, Ms MacTiernan, on behalf of the plaintiff, submitted that some form of indexation was to be applied to the calculation of loss of earnings. She stated that she relied upon the authority of Roleff v Chubb Insurance Co of Australia Pty Ltd.[66] In Roleff’s Case, it was clearly found by the Court of Appeal that indexation of the “without injury” earnings was not permitted under the Act. I do not accept that any form of indexation is permitted in the calculation of the “without injury” or “after injury” earnings under the Act.
[66] [2011] VSCA 21
88 At the time of hearing the application, counsel on behalf of the plaintiff submitted that the gross income earned by the plaintiff for the year ending 30 June 2011, was $52,471. This income was from personal exertion as required under the Act.
89 In cross-examination, the plaintiff stated that he worked at Makesafe Security. He accepted that his earnings for the time up until 29 January 2011 were $43,000.59 for a forty-two week period of employment. After some further cross-examination by Mr Myers, on behalf of the first defendant, the plaintiff was asked this question:
[67] T 44, L10-13
“Q: That seems to be if you’ve been earning that figure from 17 April 2010 right up until July of 2011, it would seem that about $1,027 per week is about your average income now, correct?--- A: Yeah, correct.[67]
90 If that calculation is correct, then on the defendant’s version, fifty-two weeks at $1,027 gross per week is an annualised earnings from personal exertion of $53,404 gross.
91 I find on the evidence that the plaintiff is able to and will continue to be able to work as a security guard earning an income in the order of $52,000 gross per year.
92 I conclude that as a result of comparing his “without injury” earnings with his “after injury” earnings, the plaintiff has failed to establish that he has suffered a loss of income earning capacity which is productive of a financial loss of more than forty per cent per annum as required under the Act.
Conclusion
93 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring proceedings at common law pursuant to Section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering which have arisen out of the injuries he received in his employment with the defendant.
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