Chapman v Shamic Sheetmetal Australia Pty Ltd
[2016] VCC 813
•17 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03529
| IAN KEITH CHAPMAN | Plaintiff |
| v | |
| SHAMIC SHEETMETAL AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 June 2016 | |
DATE OF JUDGMENT: | 17 June 2016 | |
CASE MAY BE CITED AS: | Chapman v Shamic Sheetmetal Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 813 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering and loss of earning capacity – gas heater assembler – lifting and manoeuvring parts – pre-existing kidney condition – credit of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to commence a claim for common law damages for pain and suffering and loss of earning capacity for injury suffered to his right shoulder in the course of his employment with the defendant on 19 March 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Mr L Allan | Shine Lawyers |
| For the Defendant | Mr P Elliot QC with Ms S Bailey | Wisewould Mahony |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a gas heater assembler. On 19 March 2009, the plaintiff claims he suffered an injury to his right shoulder and neck, during the course of his employment when lifting a heater down from a shelf.(“the accident”)
2 This is an application for leave to bring proceedings pursuant to s134(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) of the Act and the plaintiff seeks leave to claim damages for his pain and suffering and loss of earning capacity.
3 Mr J Gorton QC appeared with Mr L Allan of Counsel for the plaintiff and Mr P Elliot QC appeared with Ms S Bailey of Counsel for the defendant.
4 The body functions said to be impaired are the right shoulder and cervical spine. However Mr Gorton made no closing submissions in relation to the plaintiff’s cervical spine. I consider he effectively abandoned it, such that it is not necessary for me to determine if the plaintiff suffers a serious injury in respect of his cervical spine.
5 The plaintiff and Dr Hayden Prime, radiologist, were called to give evidence and were cross-examined. Also in evidence were affidavits from the plaintiff’s partner and the plaintiff’s former solicitor. Medical reports and other material were also tendered. I have read these tendered documents, together with the transcript of the proceeding. 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 referred to in this Judgment.[1]
[1]See Barlow v Hollis [2000] VSCA 26 per Chernov J at paragraphs [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at paragraph [38]
6 The case was unusual, in that the plaintiff’s general practitioner Dr Monkovitch recorded a complaint of left shoulder pain, which she treated with a cortisone injection, hydrodilatation and physiotherapy. The plaintiff alleged this happened as a consequence of Dr Monkovitch wrongly recording that he had injured his left shoulder, instead of his right. To determine if the accident caused the plaintiff to suffer a serious injury in his right shoulder, it is necessary for me to determine if this was a mistake by Dr Monkovitch.
7 For reasons which I will explain below, I am satisfied it was a mistake by Dr Monkovitch, and that since the accident the plaintiff has suffered a right shoulder injury. Further I am satisfied that the consequences suffered by the plaintiff achieve the “very considerable” level the Act requires.
Relevant background
8 The plaintiff was 59 years old when the accident occurred and is now 66 years of age. He lives with his partner, Carol, although he does not recognise their relationship due to Carol still being married to her deceased husband.
9 The plaintiff attended school until Year 8, at which time he left and undertook a an apprenticeship in painting. He then worked as a painter for about eight years. He subsequently obtained work as a shunt-guard operator, working at Warrnambool railway station. The plaintiff then moved to Melbourne in the early 1980s and obtained work as a quality control inspector for Vulcan. He then did some work repairing dishwashers, worked at a sheet metal factory and later as a security guard.[2]
[2]Plaintiff’s Court Book (“PCB”) 10-11
10 The plaintiff had a pre-existing kidney condition, for which he requires ongoing medical treatment. He has consulted a specialist, Dr Wood, for several years. The plaintiff’s kidney condition has deteriorated in the last year, such that he has been advised there is a possibility he may require dialysis.[3] His kidney condition has caused lethargy and in June 2009, Dr Monkovitch certified the plaintiff as unfit for work due to his kidney condition and lethargy. However the plaintiff said he did not consider his kidney condition would currently prevent him from working.[4]
[3]Transcript (“T”) 72, L11-25
[4]T 81 L 24-28
11 Before the accident, the plaintiff was a keen golfer. He played golf with friends once or twice a week.[5] He also enjoyed fishing, both in his boat and along riverbanks.[6]
[5]PCB 18F
[6]PCB 18F
12 The plaintiff had previously suffered some neck pain. CT scans were taken of the plaintiff’s cervical spine in July and September 1999, and in April 2006.[7]
[7]PCB 44-47
13 The CT scan of April 2006, demonstrated uncovertebral osteophytes, which resulted in multiple mild neuroforaminal stenoses.
14 Also in April 2016, the plaintiff obtained some treatment from physiotherapist, David Bajayo. A letter from Mr Bajayo dated 4 April 2006 noted the plaintiff had been suffering from cervical pain and right upper limb pain for about two weeks, and that the plaintiff was having difficulty sleeping due to the pain.[8] The plaintiff was asked about this in cross-examination, but said he could not recall Mr Bajayo, or the neck pain or right shoulder pain, he was recorded as suffering at that time.[9]
[8]PCB 52
[9]T 73 L 7-21
The injury and its consequences
15 The plaintiff commenced employment with the defendant in approximately 2007.[10] He was employed as an assembler of gas heaters. The plaintiff said this involved lifting and manoeuvring various parts of the heater and putting them together. He said some of the components weighed about 50 kilograms.[11]
[10]PCB 11
[11]PCB 12
16 The plaintiff was employed on a casual basis, but worked full time with the defendant.
17 On or about 19 March 2009, the plaintiff was lifting a heater from a shelf, which he estimated weighed about 100 kilograms. He lost his balance and twisted, causing the entire weight of the heater to be borne on his right shoulder.[12]
[12]PCB 12
18 The plaintiff completed an incident report that day. This incident report referred to a right shoulder injury.[13]
[13]PCB 142
19 The plaintiff was sent by the defendant’s first aid officer Steve Ross, to the company doctor at the Croydon Medical Centre. There, he saw Dr Jaime Cayetano and was given a WorkCover certificate as being unfit for any duties on 19 and 20 March 2009.[14]
[14]Defendant’s Court Book (“DCB”) 41-42
20 The plaintiff was subsequently reviewed at the same clinic by Dr Matthew Taine. He was provided with a further WorkCover certificate, stating he was unfit for any duties on 23 and 24 March 2009, and therefore was fit for modified duties, with no lifting beyond 10 kilograms for the period 25 March to 8 April 2009.[15]
[15]DCB 43-44
21 The plaintiff was then cleared to undertake normal duties from 9 April 2009.[16] The plaintiff said that he asked for this clearance, so that he could return to normal duties.[17]
[16]DCB 45-46
[17]T 27, L 21-23
22 These WorkCover certificates referred to the plaintiff as suffering a soft-tissue injury to his right shoulder.
23 The plaintiff said that, although he was cleared to do normal duties, he did not return to the very heavy lifting he had previously undertaken with the defendant.[18]
[18]T 27, L 2 - 8
24 The plaintiff said that after being back on normal duties for about one week, he was terminated on the basis there was no more work available. However, the plaintiff did not believe this was the real reason, as he was subsequently told by a friend who worked with the defendant, that a new worker had replaced him the following week.[19]
[19]T 43, L13-16
25 The plaintiff’s local medical practice is the Joseph Banks Medical Centre, and he had attended this clinic for many years. His first attendance there after the accident was on 27 March 2009, at which time he was given a flu vaccination from Dr Melissa Monkivitch. There was no mention in her records of him suffering any shoulder pain and she recorded that he was “well”.[20]
[20]Exhibit B, Joseph Banks Medical Centre records
26 The plaintiff had seen Dr Taine a few days earlier in relation to his right shoulder injury. The plaintiff was asked why he had not mentioned his right shoulder injury to Dr Monkivitch at the consultation on 27 March and he said it was a long time ago and he could not remember why.[21]
[21]T 51, L 28-31, T 52, L 1
27 The plaintiff next attended Dr Monkivitch on 4 June 2009. On this day, Dr Monkivitch noted that the plaintiff had been made redundant “two months ago due to physical inability to cope with heavy manual labour of heater assembly”.[22] Dr Monkivitch proceeded to complete a Centrelink Medical certificate for the plaintiff to receive a disability pension. Her medical certificate referred to the plaintiff suffering chronic renal compromise which caused chronic fatigue.[23] There is no mention of the right shoulder injury on this certificate.
[22]Exhibit B
[23]DCB 21
28 The plaintiff subsequently attended Dr Monkivitch on 6 November 2009. The record for this attendance is as follows:
“Ceased work in April due to w/c injury to L(shoulder) (lifting heavy containers above head. No better since cease work. Suffering daily headaches/shoulder pain/night pain. Nil L(arm) referred pain Presently off Centrelink. o/e (tense tender trapezius with restricted ROM space L (shoulder); abduction 50% plus int rotation 80% reduced.
DDx = shoulder tendinopathy for x-ray plus U\S+r\v.”[24]
[24]Exhibit B
29 The plaintiff expressly denied that he complained to Dr Monkivitch about his left shoulder. He said that he had only ever injured his right shoulder, and was emphatic that he told Dr Monkivitch it was the right shoulder that he had injured.[25]
[25]T 30, L 26-31, T 31, L 1, T49, L 28-31, T 50, L 1-12
30 The plaintiff subsequently underwent an x-ray of his cervical spine and left shoulder, as well as a left shoulder ultrasound.[26] The left shoulder ultrasound was reported as demonstrating that the tendons of the left rotator cuff were all intact, with there being no evidence of a tear or tendinitis. Further, there was no evidence of an effusion within the glenohumeral joint, or subdeltoid bursa.
[26]PCB 48
31 The plaintiff again attended on Dr Monkovitch on 13 November 2009. Notwithstanding the normal left shoulder ultrasound report, Dr Monkivitch advised the plaintiff that the ultrasound demonstrated bursitis. When the plaintiff was questioned about this in cross-examination, he said he did not even know what that word meant.[27] He simply recalled being told by Dr Monkivitch that he should attend the Dandenong Hospital for an injection to be performed.
[27]T 57, L27-31
32 The plaintiff subsequently attended a clinic in Dandenong for the purpose of undergoing this treatment. The plaintiff recalled getting ready for the procedure and wearing a patient gown, when he was advised the injection was to be into his left shoulder.[28] He recalled telling the doctor it was his right shoulder that was injured. The plaintiff said he was then sent home and that he returned a day or so later.[29] At that time the plaintiff said he was then assured it had been checked with his doctor and the injection was to be into his left shoulder.[30] The plaintiff signed a consent form referring to his left shoulder, and received the cortisone injection on 20 November 2009.[31]
[28]T 27, L 5-14
[29]T 28, L 26-30
[30]T 28 L 31, T 29, L 1-5
[31]Exhibit C, Dr Prime’s clinical records in relation to the plaintiff
33 The plaintiff said that he was not a doctor himself and he simply trusted that the treatment he was receiving was appropriate for his condition. He thought that “his left shoulder may need to be treated in order to treat the pain in his right shoulder”.[32]
[32]PCB 18C
34 The plaintiff could not recall receiving the hydrodilatation procedure on 26 November 2009.[33]
[33]T 32, L 22-31
35 The cortisone injection and hydrodilatation were both performed by radiologist Dr Hayden Prime.
36 Dr Prime was called to give evidence, and said he had no independent recollection of the plaintiff. He produced his clinical records, which were tendered in evidence.[34]
[34]Exhibit C
37 Dr Prime said his computerised record indicated that on 16 November 2009, the plaintiff was given two appointments, one for a CT scan and hydrodilatation to be performed on 20 November 2009 and one for a cortisone injection to be performed on 26 November 2009. Dr Prime could not say whether these appointments were arranged by telephone, or if the plaintiff attended in person on 16 November 2009.
38 Dr Prime explained that his preference is to perform a cortisone injection before a hydrodilatation, as it is less invasive and may result in a resolution of a patient’s symptoms without the need for the further treatment. Therefore, when the plaintiff attended on 20 November 2009, it was decided to perform the cortisone injection on that day. This was also necessary, as the plaintiff was on aspirin for his kidney condition, and he needed to cease this seven days prior to undergoing a hydrodilatation.
39 Dr Prime explained the admission process which is undertaken at his clinic. He said the patient is seen by a nurse and then a technician, both of whom ensure the patient is ready for the procedure. At that time, Dr Prime meets the patient and explains the procedure to be performed and the associated risks. Dr Prime said he would always check that the correct body part was being treated. He said this is something medical professionals are very careful about. He was extremely confident that if a patient had raised a concern with him as to the procedure being performed on the wrong shoulder, that he would double check with the patient’s referring doctor and note this in his clinical records. Dr Prime was also confident that if a patient had raised a concern with other staff members as to the wrong body part being identified, that this would be noted in the records . He said that any discussion with a referring doctor to clarify such an uncertainty, would be undertaken personally by him, and not a nurse or technician.
40 Dr Prime acknowledged that the initial left shoulder ultrasound of 9 November 2009 was not reported as showing bursitis or adhesive capsulitis. He said that such a diagnosis must have been made by Dr Monkivitch on clinical grounds.[35] Dr Prime said that when administering a cortisone injection under ultrasound guidance, he is not looking to confirm a diagnosis, but rather is looking to ensure the cortisone is injected into the shoulder joint. He also said it was possible there was no bursitis in the plaintiff’s left shoulder.[36]
[35]T 112, L21-24
[36]T 112, L25-26
41 Dr Prime then said that in performing the hydrodilatation, he is able to see the capsulitis, and noted that if there are observable signs of adhesions, he will usually put that in his report. Prior to giving evidence, Dr Prime had reviewed the image taken at the start of the plaintiff’s hydrodilatation and considered “it looked very regular, not irregular, and so it looked like there was not significant capsulitis”.[37] He then conceded the left shoulder may not have had any capsulitis.[38]
[37]T 111, L26-31
[38]T 112, L1-2
42 The plaintiff said that neither procedure caused any ongoing problems in his left shoulder.[39]
[39]T 83, L 27-31
43 After receiving the cortisone injection and hydrodilatation, the plaintiff was referred by Dr Monkivitch for physiotherapy from Ms Theresa Tan.
44 On 30 December 2009 the plaintiff attended Ms Tan, at which time she noted the plaintiff presented with a longstanding history of left shoulder pain, after he lifted a gas heater at work in 2008. She obtained a history of the plaintiff undergoing a hydrodilatation and noted since that procedure, the plaintiff had experienced residual pain and stiffness in his left shoulder. Her report indicated that she examined the plaintiff’s left shoulder and found a limited range of movement. She recommended treatment including localised heat, ultrasound treatment and manipulation.[40]
[40]PCB 54-55
45 Ms Tan noted the plaintiff had significantly improved by his second visit, and recorded a range of movement in his left shoulder of 80 per cent.
46 The plaintiff was asked about his attendances upon Ms Tan. He denied having told her he had injured his left shoulder. He also denied that she examined his left shoulder. He recalled receiving some electrodes, which he subsequently acknowledged was a TENS machine, across both shoulders and on his neck. The plaintiff also recalled that Ms Tan manipulated both his shoulders.[41]
[41]T 35, L 15-19
47 The plaintiff next attended upon Dr Monkivitch in regard to his neck and shoulder pain on 26 July 2010. At that time, it was noted that the plaintiff had not improved with physiotherapy and he was referred for acupuncture treatment.
48 In approximately October 2010, the plaintiff undertook a gym program, which he said helped with his neck pain.[42]
[42]T 60, L 24-31, T 61, L 1-10
49 In approximately February 2011, the plaintiff was referred by Dr Monkovitch for chiropractic treatment of his neck pain.[43]
[43]PCB 18D
50 On 13 December 2011, the plaintiff attended upon Dr Monkivitch and she recorded that the plaintiff had aggravated his neck pain after painting. At the time, she examined the plaintiff and noted tense trapezius with mild restricted range of movement but normal range of movement in his shoulders.[44]
[44]Exhibit B
51 There were then further attendances upon Dr Monkivitch in January 2012 and March 2012 regarding the plaintiff’s ongoing neck and shoulder pain.
52 In early 2012, the plaintiff said that he had a discussion with someone at his gym, who suggested that he may have entitlements under the WorkCover system. Until then, the plaintiff had believed he had no WorkCover entitlements as a consequence of him being terminated from his employment.[45] Thereafter, the plaintiff instructed Shine Lawyers, who advised him of his rights and assisted him in completing a WorkCover Claim Form in February 2012.[46] The Claim Form referred to a neck injury and bilateral shoulder injuries.[47] The plaintiff conceded it is his hand writing on the Claim Form and he completed it based upon the advice provided to him by his solicitor.[48]
[45]T 42, L 17-20
[46]T 44, L 29-31, T 45, L 1
[47]PCB 21-22
[48]T 45, L 21-29
53 An affidavit from solicitor Ms Divina Moodley was tendered. The plaintiff first instructed Ms Moodley when he attended Shine lawyers in early 2012. Ms Moodley obtained instructions from the plaintiff that he had only ever injured one shoulder, however as the clinical notes and radiological investigations referred to the other shoulder, Ms Moodley recommended that the plaintiff refer to bilateral shoulder pain in his WorkCover Claim. She considered it an odd situation and recalled the plaintiff’s insistence that he had only ever injured the one shoulder.
54 On 30 March 2012, Dr Monkivitch provided a medical report to the plaintiff’s solicitors referring to the plaintiff as suffering left arm pain.[49] She detailed the investigations performed and his referral for hydrodilatation of the left shoulder, as well as physiotherapy mobilisation of the neck. Dr Monkivitch stated that in her opinion, the type of work the plaintiff had undertaken over many years had caused the shoulder capsulitis, and materially contributed to the state of his cervical spine degeneration. She considered the plaintiff’s injuries impacted upon his lifestyle, as well is an inability to perform manual tasks without exacerbating neck and shoulder pain.
[49]PCB 61
55 On 8 June 2012, the plaintiff attended Dr Monkivitch, at which time he discussed with her that his complaints had always pertained to his right , not his left shoulder, as had been stated in her notes. At this time, Dr Monkivitch examined the plaintiff’s right shoulder and noted 30 per cent adduction and 50 per cent internal rotation. She also noted a normal range of movement in the left shoulder. She noted the cervical spine had a reduced range of motion bilaterally.
56 On this same day, Dr Monkivitch amended her report of 30 March 2012 and changed all references from the left shoulder to the right shoulder.[50] This report was then faxed to the plaintiff’s solicitors, and was subsequently provided to the insurer when the plaintiff’s s98C claim was lodged.
[50]PCB 60
57 On 24 April 2013, Dr Monkivitch provided a further report to the plaintiff’s solicitors, referring in it to a history of a right shoulder injury.[51] She noted the plaintiff had received chiropractic treatment and considered him unable to return to his previous employment due to its heavy physical demands.
[51]PCB 62
58 On 30 April 2013, Dr Monkivitch referred the plaintiff to orthopaedic surgeon, Mr Ton Tran. In her letter of referral, Dr Monkovitch stated the plaintiff had presented in 2009 with left neck and shoulder pain after lifting at work, and that he was found to have cervical degeneration with nerve imprint impingement and left shoulder bursitis.[52] The letter also suggested that the plaintiff’s solicitors had requested a specialist review to ascertain if the plaintiff required any form of intervention.
[52]PCB 63
59 On 14 May 2013, the plaintiff was examined by Mr Tran. In a letter Mr Tran subsequently wrote to Dr Monkivitch, he stated that the plaintiff “had no idea why he was seeing me and it took a while to get his story out of him”.[53] Mr Tran obtained a history of an injury to the plaintiff’s right shoulder, noting that Dr Monkivitch had referred to the plaintiff’s left shoulder in her letter of referral.
[53]PCB 68
60 Mr Tran noted the right shoulder injury had arisen after lifting a heavy heater at work in November 2009 ,and that the plaintiff had physiotherapy at the time, but no further treatment. Mr Tran observed that all the investigations had been in relation to the left shoulder, including an ultrasound-guided injection. Mr Tran commented that none of those investigations demonstrated any rotator cuff disruption.
61 Mr Tran examined the plaintiff and found him to have a full range of shoulder elevation, without any evidence of impingement on his right shoulder. He stated that imaging of the right shoulder would be required to definitively assess the plaintiff’s right shoulder injury.[54]
[54]PCB 69
62 The plaintiff continued to consult Dr Monkivitch, and other doctors at the Joseph Banks Medical Centre for neck pain, right shoulder pain, as well as other medical conditions, including his kidney problem and tinea. Throughout this period the plaintiff received chiropractic treatment, as well as acupuncture.
63 The plaintiff claims that he suffers constant pain in his right shoulder.[55] He described it as being in the top of his right shoulder, going towards the base of his neck, as well as down his arm and into his right hand. The plaintiff described the pain as a dull ache when at rest, but said that it increases in intensity if he tries to move his right arm too much.
[55]PCB 18C-18D
64 The plaintiff has attempted to play golf only once after suffering his injury, but found that the pain was too great.[56] He has not played golf since. The plaintiff no longer goes fishing in his boat as he finds pulling it along and tying the ropes, as well as casting his line is too painful for him. The plaintiff said he could manage to fish from a riverbank if he was to cast left handed.[57]
[56]T 82, L 7-12
[57]PCB 18G
65 The plaintiff said that he still does some gardening and mowing of lawns but that he does it more slowly than before his injury. He estimates that what would previously have taken him one day, now takes him three days.[58]
[58]T 69, L 25-31
66 The plaintiff complains that in addition to his right shoulder pain, he has constant neck pain. He said his neck wakes him during the night, making it difficult for him to have a proper sleep.[59] He said he sometimes gets headaches.[60] The plaintiff feels a restriction of movement in his neck which makes it hard for him to look up and down or from side to side.
[59]PCB 18H
[60]PCB 18H
67 The plaintiff takes three to four Panadol or Panamax a week.[61] He generally tries to avoid taking pain medication.[62]
[61]T 80, L 18-20
[62]T 80, L 18-24, T 80, L30-31, T 81, L 1-3, PCB 18I
68 The plaintiff said his right shoulder pain is worse than his neck pain. When asked about his capacity to work, the plaintiff stated that it was his right shoulder injury that would prevent him working as a painter or in his pre-injury duties.
69 An affidavit from the plaintiff’s partner Carol was also tendered.[63] She confirmed that since the accident, the plaintiff had complained of right shoulder pain, and he never complained of any pain in his left shoulder. She also described the plaintiff’s restrictions, including how he often needs rest breaks when performing tasks around the home.
[63]PCB 20A -20C
Medico-legal evidence
70 The plaintiff’s solicitors arranged for him to be examined by orthopaedic surgeons, Mr Kevin King and Mr Russell Miller.
71 Mr King examined the plaintiff in September 2013.[64] He obtained a history as to the circumstances in which the plaintiff had injured his right shoulder and neck on 19 March 2009, and considered the plaintiff to be chronically and severely disabled. Mr King considered the plaintiff had suffered an acute injury to the rotator cuff tendons in the right shoulder and as a consequence was permanently unfit to return to the sort of work that he had done throughout his adult life. Mr King does not comment on the plaintiff’s neck injury, and observed that on examination the plaintiff had a full and painless range of movement in his cervical spine.
[64]PCB 100-105
72 Mr Miller examined the plaintiff in February 2016.[65] He also obtained a history as to the accident and considered the plaintiff was suffering from a musculoligamentous strain to the cervical spine and symptoms into the right shoulder suggestive of rotator cuff dysfunction, capsulitis and frozen shoulder. He considered the plaintiff incapable of returning to his pre-injury duties, and noted that he would be restricted from performing repetitive arm actions involving the use of the right arm above shoulder height or lifting weights of more than five kilograms.
[65]PCB 119-126
73 The plaintiff was also examined by several orthopaedic surgeons for the defendant and its insurer. The plaintiff was first examined by orthopaedic surgeon, Mr Peter Scott, in March 2012.[66] Mr Scott obtained a history of the accident and the onset of symptoms. He then recorded that the plaintiff was referred by Dr Monkivitch for an ultrasound-guided steroid injection which “was given into the left shoulder, which was not his problem site”.[67]
[66]PCB 70-76
[67]PCB 71
74 Mr Scott was of the opinion that the plaintiff had suffered a right shoulder rotator cuff lesion, and an aggravation of pre-existing asymptomatic degenerative changes in his cervical spine. He considered the plaintiff to be unfit for his pre-injury duties but considered he could return to modified duties, provided he was not required to reach up with his right arm, pull and push against resistance of more than five kilograms in weight, or move his head repetitively from side to side.[68]
[68]PCB 75
75 The plaintiff was subsequently examined by orthopaedic surgeon, Mr Michael Shannon, for the purpose of assessing his permanent impairment to determine his entitlement to a lump sum benefit under s98C of the Act. Mr Shannon examined the plaintiff on 16 October 2012.[69] Mr Shannon was provided with numerous medical reports, including the amended report of Dr Monkivitch dated 30 March 2012, which referred to the plaintiff suffering right shoulder symptoms.
[69]PCB 85-89
76 Mr Shannon obtained a history of the accident and noted that the plaintiff informed him that the cortisone injection had been performed into his left shoulder.[70] Mr Shannon concluded that the plaintiff suffered a soft-tissue injury to his right shoulder, together with possible rotator cuff degeneration.
[70]PCB 87
77 For the purpose of the plaintiff’s serious injury application, the defendant’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeons, Mr Ian Jones and Mr Rodney Simm.
78 Mr Jones examined the plaintiff in May 2015.[71] He considered the medical material and radiological imaging of the cervical spine, as well as the left shoulder. Mr Jones considered the plaintiff demonstrated “some signs of slight right subacromial tendinitis or a tear mildly compromising the usefulness of his dominant right arm”.[72] He was of the opinion the plaintiff could undertake full time light work of a packaging or processing nature.
[71]DCB 1-9
[72]DCB 8
79 Mr Simm examined the plaintiff in February 2016.[73] He obtained a history from the plaintiff as to the accident. He then obtained the following instructions, which, in my view, typify the plaintiff’s general confusion regarding the treatment he received for the left shoulder.
[73]DCB 10-17
80 Mr Simm recorded:
“He was a little vague about the treatment in the months that followed. He said that he underwent investigations for the right shoulder. I advised him that the information from Dr Monkivitch was that he presented to her with left shoulder pain and cervical symptoms, which led to investigations of the left shoulder. He said this was incorrect. His recollection was that he had an injection into the right shoulder, which was ineffective. I again advised him that the record would suggest that he had an injection into the left shoulder and subsequently a left shoulder hydrodilatation to distend the left shoulder joint. He said they put the injection in the wrong place, but the injection was for right shoulder pain.”[74]
[74]DCB 12
81 Mr Simm concluded that the plaintiff was suffering dysfunction of the right shoulder. He noted there was a positive indication for supraspinatus tendonitis, but a negative indication of subacromial impingement. Mr Simm considered that clinically, the plaintiff appeared to have rotator cuff pathology but as no investigations had been performed on the right shoulder, a precise diagnosis could not therefore be made. He considered the plaintiff’s symptomatic degenerative rotator cuff pathology was common in patients of his age. Mr Simm also considered the plaintiff was suffering painful cervical dysfunction due to longstanding multilevel degenerative pathology. He noted there were no clinical signs of radiculopathy.
Permanent
82 In order to satisfy the definition of “serious injury”, the plaintiff must prove the injury and its consequences are both serious and permanent.
83 It is to be considered a permanent injury if “it will probably persist and there will be no significant improvement over time”.[75]
[75]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [19]
84 I am satisfied that given it is more than seven years since the accident, the plaintiff’s condition is permanent. Further, there is no medical opinion to the effect there is some form of treatment which is likely to lead to an improvement in his condition.
The Plaintiff’s credibility and the confusion arising from Dr Monkovitch’s records and reports
85 The plaintiff’s credibility was a key issue in this case. The defendant alleged that the plaintiff’s denial of consulting Dr Monkivitch about left shoulder pain in November 2009 is a fabrication for the purpose of assisting him in this claim.
86 It appears to me that there are two possible scenarios to explain the discrepancy between the plaintiff’s evidence and the actions of Dr Monkivitch.
Scenario One:
87 The plaintiff attended Dr Monkivitch on 6 November 2009 and complained of right shoulder pain, after lifting heavy containers above his head. Dr Monkivitch then erroneously recorded it as left shoulder pain and referred the plaintiff for an ultrasound of his left shoulder. Notwithstanding the ultrasound being reported as normal, Dr Monkivitch then referred the plaintiff for a cortisone injection and hydrodilatation into the left shoulder. The plaintiff underwent this treatment, despite some misgiving, as he trusted in the doctors. The plaintiff went on to receive physiotherapy treatment, which involved treatment to both shoulders, as well is his neck.
88 When the plaintiff instructed solicitors in early 2012, he was advised to claim bilateral shoulder injury, as his solicitor was aware investigations had been performed in relation to the left shoulder. On 8 June 2012, the plaintiff informed Dr Monkivitch of her mistake, and as an acknowledgement of this, she changed her earlier medical report to refer to the right shoulder.
Scenario Two:
89 The plaintiff recovered from his right shoulder injury some time between April 2009 and 6 November 2009. At this time he attended upon Dr Monkivitch at that time, he complained of the left shoulder pain, which he claimed arose lifting heaving containers. Dr Monkovitch subsequently investigated his left shoulder. The plaintiff consented to receiving a cortisone injection and hydrodilatation into his left shoulder, as it was indeed injured at that time. The plaintiff also subsequently obtained physiotherapy treatment for his left shoulder injury. At the time the plaintiff instructed solicitors in early 2012, his left shoulder was no longer troubling him, and he was again experiencing right shoulder pain, which he complained about to doctors in his subsequent medical examinations.
90 The first scenario is consistent with the plaintiff acquiescing to the medical advice given to him. The second scenario is consistent with the plaintiff fabricating his history to maximise his prospects of obtaining compensation for the right shoulder injury suffered in March 2009.
91 Mr Elliott submitted that the plaintiff was not a reliable witness and that he gave inconsistent answers. He referred to the plaintiff’s inconsistent evidence in relation to the submission of his WorkCover certificates;[76] the plaintiff’s differing answers in respect of his work capacity;[77] and the plaintiff’s varying answers in respect of the physiotherapy treatment he had received.[78]
[76]T 42, L 21-31, T 43-45
[77]T 85, L 17-23
[78]T 29, L 27-31, T 30-31, T 34, L 27-31
92 It was evident to me that the plaintiff’s memory was at times poor. Most notably this was demonstrated by the plaintiff’s inability to recall undergoing the hydrodilatation procedure. It was also evident to me the plaintiff the did not adequately understand the nature of his medical condition or the treatment he received for it. This was best demonstrated by the plaintiff’s evidence in relation to him suffering bursitis, and also in the confused history he provided to Mr Simm.
93 I considered Dr Prime an impressive witness. I accept his evidence that it is highly unlikely that if a patient raised a concern that the procedure was to be performed on a wrong body part, that it would not be brought to the doctor’s attention and that it would have been recorded in his notes.
94 It is difficult to reconcile the plaintiff’s evidence as to what occurred at Dr Prime’s clinic, with Dr Prime’s evidence as to the process which would be followed if a patient raised concern as to treatment being performed on the wrong body part.
95 Nothwithstanding my reservations in relation to this aspect of the plaintiff’s evidence, I otherwise considered the plaintiff to be a genuine and credible witness. He gave answers expected of a truthful witness, who is unsophisticated and who has had a limited education. I am satisfied that any inaccuracies in his evidence were unintentional.
96 Dr Monkovitch was unavailable to give evidence. This was unfortunate as her explanation as to the reasons for changing her medical report on 8 June 2012 would have greatly assisted me. Her refusal to address this in her telephone conversation with the plaintiff’s solicitor on 10 June 2016, together with her comment that, “only a moron would subject themselves to treatment on an uninjured body part”[79] causes me to question the reliability of Dr Monkivitch’s records and reports.
[79]PCB 64
97 I accept the plaintiff’s evidence that he had only ever complained to Dr Monkivitch about right shoulder pain, and that he acquiesced to the treatment she recommended, including undergoing a cortisone injection, hydrodilatation and physiotherapy treatment. It is an unusual circumstance, but one which I consider probably, considering the totality of the evidence on this, including my findings that the plaintiff is a credible witness.
Loss of earning capacity
98 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, as a consequence of his right shoulder injury, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In my assessment of the statutory test, I shall disregard the likelihood that the plaintiff would have retired at the age of 65.
99 The definition of “suitable employment” is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[80]
[80]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraphs [25] and [28]
100 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“(a)the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[81]
[81]Section 134AB(38)(f)
101 In the three financial years before the accident, the plaintiff worked full time with the defendant and earned the following gross annual income:
·Financial year ending 30 June 2006: $33,436.00
·Financial year ending 30 June 2007: $31,724.00
·Financial year ending 30 June 2008: $30,759.00.
102 As a casual employee with the defendant, I consider the gross income earned by the plaintiff in the full financial year prior to suffering his injury is the period which most fairly reflects his pre-injury earning capacity. This equated to a gross weekly wage of $591.52 per week.
103 Applying the statutory test, I must therefore be satisfied the plaintiff is incapable of earning no more than $354.91 per week, and that such a restriction on his earning capacity will be permanent.
104 Relevant to the plaintiff’s loss of earning capacity, is the type of work which the plaintiff had previously performed. His work experience was limited to physical jobs, including painting and the quality assurance and construction of heaters. The plaintiff had no experience in using computers.[82] His formal education is limited, and in the witness box he came across as a relatively simple and unsophisticated person. I consider these factors would limit him to manual work only.
[82]T 85, L 9-16
105 All of the doctors accepted that the plaintiff was unfit for his pre-injury duties. Mr Jones and Mr Simm were both of the opinion that the plaintiff could do light work. Mr Jones considered the plaintiff capable of undertaking full-time light work of a packaging or processing nature. Mr Simm considered the plaintiff would have lifting restrictions of up to 5 kilograms, and restrictions in his ability to perform duties which required his upper limbs to work away from his body or above shoulder height. Given the plaintiff’s complaint of increased pain with movement of his right arm, I do not consider either opinion is realistic.
106 Mr King was of the opinion that the plaintiff could not return to his previous employment and could not perform tasks as a painter or sheet metal worker.
107 Mr Miller considered the plaintiff unfit for work involving repetitive arm actions or lifting weights of more than 5 kilograms.
108 For the reasons outlined above, I have little regard for Dr Monkivitch’s opinion. For the sake of completeness however, I note that in her opinion, the plaintiff is unable to perform manual tasks without exacerbating his neck and shoulder pain.
109 The plaintiff initially gave evidence in re-examination that he could repeatedly handle lifting 10 kilograms in a work environment.[83] Immediately after the plaintiff was excused, Mr Gorton sought, in his absence, leave to re-call the plaintiff on the basis that he had been confused in the answers he had given regarding his capacity to work. I was satisfied there was a real risk that the plaintiff had been so confused, and therefore permitted Mr Gorton to recall the plaintiff and to re-examine him. This re-examination was limited to his current capacity to perform certain work duties. The plaintiff then gave evidence that he considered himself unable to return to work as a painter or in his pre-injury duties as a consequence of his right shoulder injury.[84]
[83]T 85, L17-22
[84]T 90, L17-21
110 Considering the plaintiff’s evidence and the various medical opinions, and taking into account the plaintiff’s work experience and limited education, I am satisfied that the plaintiff’s right shoulder injury has incapacitated him to work, such that he is unable to earn more than $354.91 a week in suitable employment.
111 I accept this is the plaintiff’s position now in respect of his earning capacity, as well is into the future.
112 Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[85] Given my acceptance that the plaintiff’s right shoulder injury has incapacitated him from employment since 2009, I am satisfied that the pecuniary disadvantage to him is so great that his loss of earning capacity can be described as “very considerable”.
[85]Section 134AB(38)(c) of the Act
113 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his right shoulder injury, it is not necessary for me to consider separately his pain and suffering consequences for that injury.[86]
[86]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
Orders
114 The plaintiff’s application for leave to commence a claim for common law damages for pain and suffering and loss of earning capacity succeeds.
115 I shall make the consequent orders.
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