Crvenkovski v SJS Painting Services Pty Ltd
[2016] VCC 1576
•26 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02672
| JOHN CRVENKOVSKI | Plaintiff |
| v | |
| SJS PAINTING SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2016 | |
DATE OF JUDGMENT: | 26 October 2016 | |
CASE MAY BE CITED AS: | Crvenkovski v SJS Painting Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1576 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right shoulder – psychological disorder – causation – pain and suffering and economic loss – credibility of the plaintiff – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; Bedeux v Transport Accident Commission [2016] VSCA 127
Judgment: Leave granted to the plaintiff to issue proceedings at common law in respect of the injuries suffered in the workplace incident of 26 April 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R C Forsyth | Patrick Robinson & Co |
| For the Defendant | Ms M Britbart QC with Mr E Makowski | Russell Kennedy |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Crvenkovski, claims to have suffered an injury to his right shoulder when he slipped and fell in the course of his work duties as a painter on 26 April 2012. He also suffered a fracture to his left ankle in the incident, although that injury is not the subject of this application. There is an issue as to whether he reported the injury to a number of treating practitioners around the time. He returned to work on 2 July 2012 but claims he was unable to continue because of both the right shoulder and left ankle problems, and left after three days.
2 He has not returned to work since, and claims to have suffered a range of consequences as a result of the right shoulder injury. He underwent surgical repair on 14 August 2013.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Mr Crvenkovski’s employment with the defendant on 26 April 2012.
4 The body function said to be lost or impaired is the right shoulder. In addition, he claims to have suffered a permanent severe mental disorder in the nature of a Chronic Adjustment Disorder with Anxious and Depressed Mood.
5 The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
6 The focus of the application was as to the physical injury to the shoulder and the psychological disorder was not pursued in final addresses.
7 Mr Crvenkovski, and a co-worker, Mr George Rabagievski, were the only witnesses called to give evidence and be cross-examined. In addition, affidavits of Mr Crvenkovski, Mr Rabagievski and Mr Crvenkovski’s partner, Ms Torske, were tendered into evidence, along with various medical, radiological and vocational reports. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
8 Mr Crvenkovski is now sixty-four years of age. He was sixty at the time of the incident. He was born in Macedonia and left school at an early age. He worked for a period as an electrician and came to Australia in 1970.
9 Upon arrival in Australia, he commenced work as a slaughterman at an abattoir. He worked in the trade for thirty years until the abattoir closed down in 2000.
10 He then started work as a painter. He worked for various firms, including for the defendant, undertaking contract work. He became a full-time employee of the defendant in November 2011. According to his affidavit, he loved his work as a painter.
11 In 2004, he fell while at work and suffered a significant fracture to his left leg which required internal fixation. The circumstances of this incident were the subject of cross-examination and it was put to Mr Crvenkovski that it did not occur in the way he had described to various medical practitioners. I did not find this matter of any particular relevance, nor did it affect his credibility.
12 Apart from the 2004 incident, he had not suffered any significant other injuries, in particular to his right shoulder. He was otherwise well in 2012.
13 According to his affidavit, prior to the incident, he kept a substantial garden, including vegetables, and enjoyed spending time in it. He has never held a motor vehicle license and would ride a bicycle regularly, including to work. He had a close relationship with his partner of forty years. At the time of the incident, he was working full time for the defendant. His gross wage was $1,200 per week. I accept this sum as best representing Mr Crvenkovski’s work capacity at the time of injury.
The incident and its consequences
14 On 26 April 2012, Mr Crvenkovski was working painting a property at Northcote. Present was one of the directors of the defendant company, Mr Ian Morrison, and co-workers, Mr George Rabagievski, and his son, Simon. Towards the end of the day’s work, Mr Crvenkovski was carrying two heavy paint tins to Mr Morrison’s car which was parked towards the bottom of the property, adjacent to a grassy area. Mr Crvenkovski claimed the area was wet and slippery. When he was somewhere in the vicinity of the vehicle, he slipped. There was some cross-examination as to whether he had placed the paint tins in the car or whether he was carrying them at the time. Nothing turns on the issue.
15 According to his affidavit, and various histories from his medical practitioners, he claimed his right leg went forward, and his left leg became caught under him as he fell. He heard a crack and suffered immediate “excruciating” pain in the left ankle. He said he also fell somewhat to the right and extended his right arm to help prevent the fall. In the process, he said he suffered an injury to his right shoulder, though the pain to that area was, at the time, only modest. He said the ankle was the focus of his attention and concern.
16 Mr Morrison, Mr Rabagievski and Simon were all present in the area near the car, although it is not clear from the evidence whether they actually witnessed the incident. He was assisted to his feet by Mr Rabagievski and Simon but could not weight bear. They drove him to St Vincent’s Hospital.
17 On 24 August 2012, Mr Crvenkovski made a statement to an insurance investigator.[1] The description given in the statement largely corresponds to the affidavit in support of the application, and the histories to the various doctors. Having referred to the ankle injury, the statement says, in part:
“I have been consulting with a physio at Burke Road Physio and have been receiving massage. I am suffering pain in my right shoulder and I believe this is because of my accident. I am receiving massage treatments every fortnight.
…
My current condition is okay I feel 90% alright and I am looking forward to working however I will seek employment with another employer as I am not satisfied being paid 40% of a job.”[2]
[1]Defendant’s Court Book (“DCB”) 93-96
[2]DCB 96
18 In the course of cross-examination, Mr Crvenkovski said he recalled telling the triage nurse when he presented to the hospital, of the injury to his right shoulder. That does not appear in the clinical notes of the hospital. The “presenting problem” was said to be:
“[P]/w @ work today (painter) stepping off last step off ladder, he slipped and fell – heard crack …[Left] ankle – partial wt (weight) bear (increased) pain to lateral malleolus.”[3]
[3]DCB 112
19 Mr Crvenkovski said the reference to a ladder was a mistake. According to the “triage comments”:
“[P]/w slipped over, twisted I) ankle, ‘heard crack’ now swelling and pain to lower leg/lat mall unable to wb pmx-steel rods for l) [fracture] tib/fib.”[4]
[4]DCB 113
20 Under “Clinical Notes”:
“Tripped, and forced left ankle into a hyper-plantar flexed position as toes became caught underneath him. Has had ongoing pain lateral aspect of ankle and unable to weightbear.”[5]
[5]DCB 113
21 The fracture was placed in a plaster of Paris and Mr Crvenkovski was discharged. He returned to the Outpatient Clinic on 3 May 2012, and the history of presenting complaint recorded:
“[A]t work, slipped on bottom rung of ladder
landed on left ankle, rolled underneath him
unable to WB.”[6]
[6]DCB 115
22 Mr Crvenkovski again returned to the Outpatient Clinic on 7 June 2012 and there was recorded:
“Slipped on bottom rung of the ladder at work (painter) and rolled ankle. Was seen in fracture clinic at 1 and 2 week mark, managed conservatively as non-weight bearing.
Presented today for review out of cast.”[7]
[7]DCB 117
23 Nowhere in the St Vincent’s Hospital clinical records is there any reference to a shoulder injury.
24 Mr Rabagievski swore an affidavit which annexed a statement that he made to an insurance investigator in December 2012.[8] According to that statement:
“Simon and I drove John to the St Vincent’s Hospital and I do not recall him speaking of a right shoulder injury at the time of the accident however at the hospital, with the Triage Nurse, I heard him say to her that his right shoulder was sore. I was holding him at the time so I heard this clearly.
…
I can recall that John did work for a couple of days on 2 July 2012 to 5 July 2012 and he telephoned me and complained about his shoulder pain and said he was struggling with the job because he is right handed. … .”[9]
[8]PCB 76
[9]PCB 77
25 In the course of cross-examination, Mr Rabagievski was shown an earlier statement he had made to the insurance investigator which made no reference to any shoulder injury.[10] He accepted the second statement was made after a telephone call from Mr Crvenkovski, who said that the investigators were likely to call and take a further statement about the injury.[11] He knew the second statement was related to the pain he had in the shoulder.[12] He said further, that after Mr Crvenkovski’s return to work in July, he complained to Mr Rabagievski of difficulties doing the work with right shoulder pain, in addition to the pain in his ankle. It was difficult to understand how, in those circumstances, there was no reference to the shoulder injury in his first statement.
[10]DCB 101-103
[11]Transcript (“T”) 97
[12]T98
26 On 27 June 2012, Mr Crvenkovski sought treatment from Burke Road Physiotherapy. He complained of the fracture to his left ankle some weeks before and said he “feels 99% better”.[13] There was no reference to any shoulder injury.
[13]DCB 140
27 On 27 July 2012, he saw a Dr Ruth Leibowitz at his general practice clinic. It was recorded that he complained of “pain right shoulder for one week”.[14]
[14]DCB 134
28 He saw the same practitioner again on 23 August 2012. There was no specific reference to any right shoulder problem.
29 On 19 September 2012, the clinical notes record:
“[P]ain in right shoulder since his fall, but last 4 weeks getting worse
painful to sleep on the right side.”[15]
[15]DCB 133
30 On 25 September 2012, Mr Crvenkovski sought further treatment from “Back in Motion” Physiotherapy. The history notes record that he fell and broke his left leg and:
“Also damaged ® (right) shoulder.
Shoulder getting worse past few months, went back to GP for US (ultrasound).”[16]
[16]PCB 79
31 On 6 August 2012, Mr Crvenkovski filed a WorkCover Injury Claim Form.[17] The form referred to his fractured leg, but not to any shoulder injury.
[17]PCB 1-2
32 On 3 July 2012, Mr Crvenkovski returned to work with the defendant. He lasted only three days. In addition to ongoing pain in his left ankle, he said he was suffering sufficient pain in his right shoulder to make it difficult for him to continue his painting work, in particular using the rollers. In cross-examination, he said it was both the right shoulder and the left ankle injuries which prevented him from continuing work.
33 Mr Crvenkovski was cross-examined extensively about his failure to record or complain of his right shoulder problems to the hospital, his general practitioner and in the documents referred to. His explanation was that at the time of the incident, he had only modest pain in the shoulder. That problem was masked by the more acute and significant injury to his left ankle. He said that as time progressed, the pain in the shoulder became worse. Initially, he thought the shoulder problem was minor and would improve. In fact he said the shoulder became more painful and restricted. He was adamant that he had told the triage nurse at St Vincent’s Hospital of the shoulder pain, although it was not recorded in the notes. He further said that he had complained of shoulder pain to Dr Leibowitz, and the doctors at the Outpatient Clinic at St Vincent’s Hospital.
34 It was significant, said Ms Britbart, for the defendant, that there was no reference to any shoulder injury in the Claim Form, given that by early August, the pain in that area had increased, making it difficult for him to perform work in July, and that it was causing him problems with sleep and other activities.[18]
[18]T28
35 According to a report from Dr Andrew Haines of the Ashburton Medical Clinic:
“John also injured his right shoulder at the time of the fall but the left ankle injury was more immediate concern and so the shoulder injury was initially ignored. His shoulder pain initially improved with rest but got significantly worse when he tried to return to work in early September 2012. Subsequently he was investigated with xray, ultrasound & MRI of the shoulder which showed he had early degeneration of the acromio-clavicular joint, partial thickness (reported as full thickness on ultrasound but largely intact on MRI scan) tear of the supraspinatus tendon, moderate tendinosis of subscapularis & subacromial bursitis”[19]
[19]PCB 14
36 In a report of April 2016, Dr Haynes said Mr Crvenkovski was suffering ongoing right shoulder pain and limitation, which would prevent him from returning to work as a painter. In fact, he said any manual work which involved significant use of the dominant right arm would be difficult. He thought he would need re-training for non-manual work. He noted Mr Crvenkovski was suffering depression and had been referred to a psychologist.
37 Dr Haynes referred Mr Crvenkovski to Mr Andrew McQueen, orthopaedic surgeon, in April 2013 because of the right shoulder problem. Mr McQueen noted an ultrasound of September 2012 showed a full-thickness tear of the supraspinatus tendon with a suggestion of a small subscapularis tear, and mild bursitis.[20] He arranged an MRI scan, which noted mild to moderate arthrosis of the acromioclavicular joint, bursitis, a partial tear affecting the anterior and bursal surface of the tendon and tendinosis of the subscapularis.[21]
[20]PCB 50
[21]PCB 52
38 In August 2013, Mr McQueen performed arthroscopic surgery to the right shoulder, which he said confirmed significant synovitis in the joint and fraying of the anterior labrum. He removed the outer end of the clavicle and repaired the capsule. He undertook an extensive subacromial decompression.
39 In a report of March 2016,[22] Mr McQueen said, when he reviewed Mr Crvenkovski in August 2014, there was a 75 per cent range of movement. A follow-up MRI scan showed:
“… a partial supraspinatus tear which was not present in the previous MRI examination or at the time of the previous surgery.”[23]
[22]PCB 21-22
[23]PCB 21
40 He thought there would be ongoing problems with the shoulder which would interfere with work capacity. He described Mr Crvenkovski’s problem as “significant” and that would preclude him from work as a painter. He thought the prognosis was poor. There was no further surgery indicated.
41 Since surgery, Mr Crvenkovski has received physiotherapy treatment from time to time, paid for by the WorkCover insurer. He had a cortisone injection to the shoulder in May 2014. At the present time, he takes no prescription medication, but six or so Panadol Osteo tablets per day, and Panadol to help with sleep.
42 He says the pain in his right shoulder is constant and, in particular, makes it difficult for him to get a good night’s sleep. He wakes regularly during the night. He finds it difficult to open jars and reach for things, particularly above shoulder height. He claims to struggle doing gardening and can no longer ride his bicycle. His intimate relationship with his partner is affected. He can no longer paint and has not sought nor undertaken any employment since July 2012. As a result of the pain and restriction, he has become stressed and depressed and has been referred to a psychologist. He is in receipt of Centrelink benefits.
43 According to an affidavit of his partner, Ms Torske, Mr Crvenkovski has become more isolated and restricted in the activities he used to enjoy. He does not enjoy gardening as much, nor riding. He has become angry and frustrated. His sleep is dramatically affected. He is able to walk, and they go shopping together. Their social life is restricted.
44 On a number of occasions, Mr Crvenkovski has been referred to a vocational provider, Recovre. Progress reports were tendered.[24] Various areas of alternative employment were suggested, including work as a retail sales assistant, and as a process worker in a restricted environment. The retail sales work, at premises such as Bunnings, was said to involve light work including lifting objects weighing up to 9 kilograms from time to time, and up to 4 kilograms regularly. The work was said to require use of a computer, repetitive movements, driving a car and using other electronic equipment. The work of a process worker was said to involve occasional lifting of 22 kilograms and frequent lifting of 11 kilograms.
[24]DCB 43 – 92
45 In 2016, Mr Crvenkovski was diagnosed with coronary artery disease. Coronary artery bypass surgery was performed in June 2016. Post-operative recovery was said to be excellent and Mr Crvenkovski did not complain of any cardiac symptoms.
Consultant medical opinions
46 Mr Crvenkovski was examined by Mr Kenneth Myers, general surgeon, in March 2016. He described the injury suffered as an injury to rotator cuff structures, bursitis and aggravation of pre-existing degenerative arthritis in the acromioclavicular joint. He thought there would be progressive worsening of the condition and a permanent restriction on activities involving the right arm.
47 Mr Kenneth Brearley, surgeon, provided a report of April 2016. To Mr Brearley, Mr Crvenkovski complained of ongoing pain in the right shoulder which restricted his ability to perform housework or mow the lawns. He noted slight wasting of the musculature of the right shoulder. He described the injury as to the rotator cuff, comprising supraspinatus tendinopathy and subacromial bursitis with aggravation of degenerative changes in the shoulder. He thought there had been little improvement since surgery. With the ongoing pain and restriction of use of the right shoulder and arm, Mr Brearley thought that he would not be able to undertake any work, either full or part time. He said he would not be able to work as a retail sales assistant because of the lifting and work overhead.
48 On behalf of the defendant, Mr Crvenkovski was examined by Dr Garry Davison, occupational physician, in February 2016. In the history received, Mr Crvenkovski said that he did not experience pain in the right shoulder initially, but rather, two to three weeks after the fall, the shoulder became sore. He noted little benefit from the surgery. According to Dr Davison, given the failure to report shoulder problems to the general practitioner, he thought it was unlikely the incident caused or aggravated the right shoulder condition. He thought there was substantial pre-existing degenerative change in the shoulder joint and rotator cuff. He thought that the problem was that he had worked as a meatworker for thirty-two years and then for a period as a painter, and that the aggravation to the underlying degenerative condition in the shoulder was related to these areas of employment over a long period.
49 Dr Davison considered Mr Crvenkovski did not have the capacity to work as a painter. In his report of February 2016, he considered he had the capacity for suitable alternative employment up to 20 hours per week with certain restrictions.[25] He said he could work for up to 20 hours as a retail sales assistant or as a process worker.
[25]DCB 37
50 In his next report of April 2016, Dr Davison was provided with video surveillance film. He noted Mr Crvenkovski was able to walk in an unrestricted manner, able to retrieve items without difficulty from a supermarket, although not to a height which exceeded that observed in clinical examination. He said Mr Crvenkovski was able to unload the contents of a supermarket trolley, including lifting a bag of potting mix. He was further observed to prune a hedge without apparent discomfort, save for a short period after that activity. He noted that the surveillance “did not reveal any substantial difference between the physical capacities reported and demonstrated to me and the physical activities undertaken during video surveillance”.[26] Somewhat curiously, notwithstanding this finding, Dr Davison said the video surveillance caused him to review Mr Crvenkovski’s work capacity. He thought he had the capacity to work full time after a graduated return to work in the alternative areas of employment previously referred to.
[26]DCB 41
51 Mr Crvenkovski was examined by Mr Michael Dooley, orthopaedic surgeon, in August 2016. He said that at the time of the fall, Mr Crvenkovski had established degenerative rotator cuff disease in the right shoulder with some tearing of the supraspinatus and subscapularis tendons. He thought that in the fall, this condition was aggravated. He thought there would be continued intermittent right shoulder pain and that Mr Crvenkovski would not regain a full range of movement in the shoulder. The degeneration would continue to occur, although further surgery was not indicated. Mr Dooley said he thought there was a physical capacity to do light work, including clerical duties, although any return to work would have to be on a graduated basis. Work as a retail sales assistant would depend upon the amount of physical activity involved.
Credibility of the Plaintiff
52 Ms Britbart made a concerted attack on Mr Crvenkovski’s credibility. She said that Mr Crvenkovski was an unreliable witness and, in particular, in relation to what occurred on 26 April 2012, the history referred to in contemporaneous records ought to be preferred over his evidence. She said that for the following reasons:
· Mr Crvenkovski said he “threw” the paint tins he was carrying when he slipped.[27] Ms Britbart submitted this was the first time such a history had been given.
[27]T23, L22
· At a number of places in the records of St Vincent’s Hospital, a history was recorded that Mr Crvenkovski slipped off a ladder.[28] He denied this in the course of cross-examination and said further, that he had never had an injury when slipping off a ladder.[29] When questioned about the circumstances of the earlier incident of 2004, he at first denied a ladder was involved, but subsequently, accepted that whatever he was standing on when he slipped, one end of it had been attached to a ladder.
[28]DCB 112, 115, 117
[29]T45, L6
· It was clear from the notes of the general practitioner, Dr Mishra, in 2013,[30] that Mr Crvenkovski was reluctant to participate in any return to work program. He said he wanted to be completely pain free before seeking alternative employment.
· Generally, while accepting the video surveillance did not show the plaintiff performing activities grossly different from his complaints of pain and restriction in his evidence and the histories to the doctors, nonetheless, it did show him moving in a free and unrestricted manner and performing a range of activities which were to some extent inconsistent.
[30]DCB 124 – 125
53 One aspect of the assessment of a witness’s credibility relies upon the manner in which the witness gave evidence in the witness box. I found Mr Crvenkovski a responsive and quite satisfactory witness. He attempted to answer questions in cross-examination to the best of his ability. I found no evidence of exaggeration or overstatement of his symptoms and restrictions. He made concessions that I would expect of an honest witness.
54 Surveillance film of the plaintiff was taken over a number of dates in September and November 2015, and August 2016. He was shown to walk along the street, mostly moving his right arm in an unrestricted manner, although at times holding the arm in the pocket of his clothing. He appeared with his partner in a supermarket gathering items into a trolley. He reached with his right arm from time to time to the lower shelves to retrieve items and on one or two occasions, retrieving items at or above shoulder height. He placed plastic shopping bags in the trolley using both arms. He was able to pull open the tailgate of his vehicle using his right arm and then loaded bags into the vehicle, including a large bag of potting mix, using both arms. Another part of the video showed him pruning shrubs in his garden over a period of 10 to 15 minutes, using his right arm to wield secateurs.
55 I did not find the surveillance film of any particular significance in assessing Mr Crvenkovski’s credibility. On one or two occasions, he moved in a manner which might be said to be a little inconsistent with his claims as to restriction, in particular, using his arm at or above shoulder height, but they were minor and the items reached for were light in weight. That was also the opinion of Dr Davison, who examined Mr Crvenkovski for the defendant when he was provided with the video film. He said:
“The video surveillance did not reveal any substantial difference between the physical capacities reported and demonstrated to me and the physical activities undertaken during video surveillance.”[31]
[31]DCB 41
56 As to the other credit issues raised by Ms Britbart, his description of throwing the paint tins is of little significance. The history to St Vincent’s Hospital of slipping off a ladder, in my view, is simply a mistake by those to whom he spoke. It is not uncommon for an incorrect history to be repeated several times in clinical notes. Mr Crvenkovski’s version of events is confirmed by his co-worker, Mr Rabagievski. There is no evidence from any other person present at the time of the incident to suggest a ladder was involved.
57 Likewise, the events surrounding the incident of 2004 do not cause me to question Mr Crvenkovski’s credibility. The incident occurred twelve years ago, and it is not surprising there is some variation in the version of what occurred between that time and the present. The suggestion put by Ms Britbart that he had been drinking in the hotel and fallen off the stool was vehemently denied by Mr Crvenkovski. I accept that denial.
58 Further, although Mr Crvenkovski was able to give evidence in English with only occasionally the use of an interpreter, he struggled from time to time, and had only a limited ability to read documents in English. That difficulty with communication and comprehension could well explain inconsistencies in the written records.
59 All in all, I found Mr Crvenkovski a satisfactory witness, giving a fair account of the circumstances of the incident, and the effect upon him of the right shoulder injury.
Causation
60 The principal submission of the defendant is that I should not be satisfied that there was any injury to Mr Crvenkovski’s right shoulder in the incident. The onset of his symptoms and subsequent surgery could all be explained by the degenerative process in the right shoulder which, according to radiological investigations, had been present for some time, and before April 2012. Ms Britbart submitted that the right shoulder condition came about as a result of the degenerative process, or alternatively, if there was some acute incident, it occurred at some time after the workplace fall.
61 In particular, Ms Britbart pointed to the complete lack of any reference to a right shoulder injury in the clinical notes of St Vincent’s Hospital, the physiotherapist who Mr Crvenkovski saw on 27 June 2012, and the reference in Dr Leibowitz’s clinical note of 27 July 2012 that he had right shoulder pain “for one week”.[32]
[32]DCB 134
62 Ms Britbart submitted that in evidence, Mr Crvenkovski said that a significant reason that he was unable to perform his work duties when he returned to work on 3 July 2012 was because of the difficulty using rollers with a sore right shoulder. It was principally because of the shoulder that he went to see Dr Leibowitz in July 2012. It was quite inconsistent with that alleged work restriction when Dr Leibowitz recorded shoulder pain for only a week.
63 Further, in the Claim Form of 6 August 2012, there is no reference to any shoulder injury. On the plaintiff’s version of events, even accepting the pain in his shoulder worsened over time, he was having significant difficulty by that time, including not being able to work, and yet there is no reference to any shoulder injury in the Claim Form. Further, there was no reference to ongoing shoulder problems in several further attendances with Dr Leibowitz in August 2012. However, on 19 September 2012, Mr Crvenkovski reported to Dr Mishra that he had pain in the shoulder since his fall.
64 In Mr Rabagievski’s first statement of 27 August 2012, there was no reference to any injury to the right shoulder. His subsequent statement, of December 2012, which did refer to a right shoulder injury, came about in circumstances where he was requested by Mr Crvenkovski to make a further statement to the investigator.
65 To first observation, the submissions of Ms Britbart as to causation have substance. There is a significant lack of complaint of any right shoulder problems for a considerable period after the incident, to doctors and other health practitioners, particularly in circumstances where by July 2012, Mr Crvenkovski was, at least in part, unable to carry out his work duties because of his sore right shoulder.
66 However, there are a number of factors at play which adequately explain these inconsistencies, and failures to report. They are as follows:
· Mr Crvenkovski suffered an acute fracture to his left ankle. It was clearly immediately very painful and disabling. It required prompt attention and treatment at St Vincent’s Hospital, not only on the day of the incident, but on follow-up occasions in the Outpatients’ Clinic. The focus of all involved, Mr Crvenkovski and those treating him was on the left ankle injury. Little attention was paid to the problems he had in his shoulder because I am satisfied they were far less significant than the ankle in the early stages.
· Mr Crvenkovski’s evidence was clearly that he told the triage nurse at St Vincent’s Hospital this his shoulder was sore. In a busy triage area, not all history is recorded. This was confirmed by Mr Rabagievski in his second statement, although I have some reservations about Mr Rabagievski’s evidence, given the unusual circumstances under which the second statement came into existence. Nonetheless, I accept Mr Crvenkovski’s evidence that he told the triage nurse about his shoulder problem.
· It is common experience that an acute injury to one part of the body “masks” an injury to another. The injury to the shoulder, in my view, was masked by the ankle injury.
· Mr Crvenkovski’s evidence was that at the outset, the pain in his right shoulder was relatively moderate and he thought it would heal. He did not thus give it significant attention.
· The injury to his shoulder became worse over time to the point that by about July and August, he was suffering significant difficulties in his return to work and other activities. Such a scenario is not uncommon with injuries of this nature to the shoulder girdle.
· Although he did not refer to the shoulder injury in the Claim Form, it is clear from his first statement to the insurance investigator, dated 24 August 2012, that he was suffering right shoulder pain as a result of the incident.
· As stated, English is not Mr Crvenkovski’s first language. It is understandable there would be some difficulty in communication when he was reporting the circumstances of the incident to the various treating practitioners.
67 All in all, the failures to report and inconsistencies are all explainable in the circumstances which prevailed. The left ankle injury masked the significance of the right shoulder problem which, at the outset, was modest, and developed over time. Further, aside from the onset of the underlying degenerative process in the shoulder, there is no other incident to which the defendant could point to explain the right shoulder injury which, by September of 2012, caused Mr Crvenkovski’s general practitioner to refer him to an orthopaedic surgeon, Mr McQueen, who carried out a significant surgery the following year.
68 In these circumstances, I am satisfied of the causative link between the incident and Mr Crvenkovski’s right shoulder injury.
69 Mr Forsyth, for the plaintiff, submitted I ought to accept as an admission, and a significant one, the acceptance by the WorkCover insurer of the right shoulder injury and the payment by it for Mr McQueen’s operative procedure.[33] He submitted that the principles established by Ansett Australia Ltd v Taylor[34] were applicable.
[33]PCB 80 – 82
[34][2006] VSCA 171
70 Ms Britbart submitted that Ansett v Taylor should be confined to the facts of that case, in particular as to circumstances where approval by the insurer resulted in a payment of lump sum compensation pursuant to the Act, rather than for approval of operative treatment. She further referred to comments in subsequent cases which were said to have qualified the views expressed by Ashley JA in Ansett v Taylor.[35]
[35]See Transport Accident Commission v Florrimell [2013] VSCA 247; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8 and Bedeux v Transport Accident Commission [2016] VSCA 127
71 Given my findings in relation to the circumstances under which Mr Crvenkovski suffered injury, and my acceptance that his right shoulder injury is related to the incident of April 2012, it is unnecessary for me to determine the issue.
Pain and suffering
72 There is no doubt that Mr Crvenkovski suffers significant disability to his right shoulder. It required surgery by Mr McQueen in 2013, and the MRI scan prior to surgery showed bursitis, tendinopathy and a partial tear of the tendon. This was confirmed in the course of surgery. According to Mr McQueen, the surgery was not completely successful, and a subsequent MRI scan showed a partial supraspinatus tear. Mr McQueen thought Mr Crvenkovski would have ongoing problems which would restrict his work capacity. No further surgery is suggested.
73 Dr Davison and Mr Dooley, retained by the defendant, also acknowledged the significance of Mr Crvenkovski’s shoulder condition. Mr Dooley thought there would be ongoing intermittent shoulder girdle pain and that he would not regain full motion of the shoulder. He thought the underlying rotator cuff degeneration would continue to evolve.
74 I accept Mr Crvenkovski’s evidence that he has ongoing pain in the shoulder, that it affects his sleep and restricts the activities he previously enjoyed, in particular gardening and bicycle riding. He is a man with an impressive work history, and there is no practitioner suggesting that he is exaggerating or overstating his symptoms.
75 He takes “over-the-counter” pain medication on a regular basis and has required regular physiotherapy treatment.
76 I am satisfied that the consequences of the physical injury do reach the “very considerable” test the legislation requires.
Economic loss
77 I am satisfied that at the time of the incident, Mr Crvenkovski was earning $1,200 per week gross, and that that figure fairly reflects his earning capacity at the time.
78 He is a man who has spent his whole working life in unskilled manual jobs, primarily as a slaughterman and painter. He is now sixty-four years of age. There is no issue that he would be unable to return to work either as a slaughterman or painter.
79 For the defendant, Dr Davison, in his first report of February 2006, considered Mr Crvenkovski was capable of 20 hours per week work as a retail sales assistant, or process worker, with certain restrictions. Somewhat curiously, in his second report of 7 April 2016, although acknowledging that the video surveillance did not reveal any substantial difference to the manner in which Mr Crvenkovski had presented in examination, he nonetheless changed his view, and without any particular analysis, said that Mr Crvenkovski could work full-time hours. I reject this opinion.
80 Mr Dooley, while acknowledging the significance of the right shoulder injury, thought Mr Crvenkovski had a capacity to carry out some light physical and clerical duties, provided the work was started on a graduated basis. He said Mr Crvenkovski could work as a retail sales assistant providing there was not significant use of the arms for wrapping and packing.
81 The treating general practitioner, Dr Haynes, noted that all of Mr Crvenkovski’s prior employment was in manual occupations and it would be difficult, given his injured dominant right arm, literary and numeracy skills and education, for him to be retrained in any other area of employment. The treating orthopaedic surgeon, Mr McQueen, said he would be unable to return to his previous employment as a painter. Mr Myers said Mr Crvenkovski would be unable to cope with the jobs suggested by the vocational assessors. Mr Brearley said Mr Crvenkovski could not work in retail sales, as a process worker, or work in a nursery.
82 In my view, Mr Crvenkovski has very little work capacity as a result of his right shoulder injury. He is now sixty-four years of age and has limited English. All of his employment has been in manual work, and particularly using his arms. He has no other skills, and only a limited education. Any work involving the use of computers, inevitably required for any retail position, would be difficult for him. Further, the tasks identified by the defendant’s vocational assessor in the areas of retail assistant and process worker, require regular lifting of various weights. Even if Mr Crvenkovski could be re-trained into these areas, which I very much doubt, and if he were able to attain the computer skills required, his capacity to lift these items would be very much restricted.
83 In these circumstances, I am satisfied he meets the statutory test of 40 per cent reduction in earning capacity.
Conclusion
84 Leave will be granted to Mr Crvenkovski to issue proceedings at common law in respect of the injuries suffered in the workplace incident of 26 April 2012.
85 I shall make consequent orders.
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