De Sousa v The Salvation Army Australia Southern Territory
[2013] VCC 633
•7 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-02943
| ALFRED DE SOUSA | Plaintiff |
| v | |
| THE SALVATION ARMY AUSTRALIA SOUTHERN TERRITORY | First Defendant |
| and | |
| THE SALVATION ARMY (VICTORIA) PROPERTY TRUST | Second Defendant |
| and | |
| THE SALVATION ARMY ADULT SERVICES | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 May 2013 | |
DATE OF JUDGMENT: | 7 June 2013 | |
CASE MAY BE CITED AS: | De Sousa v The Salvation Army Australia Southern Territory & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 633 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Injury to the right shoulder – whether the pain and suffering consequences are “serious” – whether the loss of earning capacity consequences are “serious” – film – credit.
LEGISLATION CITED: Accident Compensation Act 1985, s134AB(16)(b)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Limited [2011] VSCA 52
JUDGMENT: The plaintiff is granted leave to bring a proceeding to recover damages for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr Forsyth | Patrick Robinson |
| For the Defendants | Mr N Chamings | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 8 July 2010 by which the plaintiff applies for leave, pursuant to s134AB(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 first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr P Jewell SC appeared with Mr R Forsyth of Counsel for the plaintiff, and Mr N Chamings of Counsel appeared for the defendants.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his right shoulder.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 13-19; 24a-42; 50‑55; 64a-64k; 73-87e; 128h-129; 131-133; 138-139c; and from the Defendants’ Court Book, pages 28-39 and 85a-85m: Exhibit B;
· The defendants tendered their Court Book (“DCB”), pages 1-15; 41-47; 53-64F; 75-85H; 90-93; 147A-147L; 185-187; 195; and 198-213: Exhibit 1;
· Film taken the plaintiff on 3 December 2010, 10 December 2010 and 16 April 2013: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(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]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsections (19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (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) Subsection (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;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of when the injury was sustained. In those circumstances, subsection 38)(e) applies.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) 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 subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff's background and the injury
8 The plaintiff was born in India in 1951. He is a married man with two children. He completed his high school education in India before migrating to Australia in 1972.
9 The major part of the plaintiff’s working life in Australia has been in the catering industry. He qualified as a chef. On 23 June 1996, he was employed full time by the first defendant as a chef. In his affidavit sworn 10 December 2009, the plaintiff set out in some detail the tasks which he was required to perform as a chef.[4]
[4]PCB 14-15
10 On 21 February 2005, the plaintiff was preparing meatloaf in a mixing bowl with another chef. He estimates that the weight of the bowl and its contents were about 80 kilograms. As he and the other chef undertook the lift, he was met with a sudden and sharp pain in his right shoulder which extended across the top of his shoulder and into his neck.
The Plaintiff's medical treatment
11 The plaintiff initially sought treatment from a physiotherapist. That treatment was helpful to a degree. His pain persisted, leading him to seek treatment from Dr Asthana, general practitioner, on 9 April 2005. The plaintiff told Dr Asthana that he had been suffering pain over the previous two months.
12 Dr Asthana referred the plaintiff to have an x-ray and ultrasound of his right shoulder which was undertaken on 12 April 2005. According to the radiologist, the ultrasound disclosed a small partial thickness tear of the supraspinatus tendon, mild right biceps tendonosis and subacromial bursal thickening likely to represent underlying bursitis.[5]
[5]PCB 129
13 Dr Asthana then referred the plaintiff to Mr Li, orthopaedic surgeon. The plaintiff first saw Dr Li on 23 May 2005. Dr Li referred the plaintiff to have an MRI scan of his right shoulder, which was undertaken on 28 May 2005. It disclosed a small articular partial thickness tear of the supraspinatus tendon, right biceps tendonosis, moderate right subacromial bursitis, and some other abnormalities.[6] Mr Li advised the plaintiff to undergo surgery, which he performed on 15 August 2005. The surgery comprised a subacromial bursectomy, an acromioplasty and a coraco-acromial ligament release.[7]
[6]PCB 131
[7]PCB 64b-64c
14 The plaintiff was absent from his employment from 15 August 2005 until 24 October 2005. He returned to work on restricted duties, working three hours per day, three days per week. His hours were increased to 5 hours per day, three days per week in November 2005, and then to 6 hours per day, three days per week in December 2005.
15 The plaintiff returned to see Mr Li on 31 January 2006 because he was experiencing severe pain. He was referred to have a further ultrasound on 12 January 2006. The radiologist reported that the ultrasound disclosed right supraspinatus tendonosis/tendinopathy and right subdeltoid-subacromial bursitis with bursal impingement.[8]
[8]PCB 132
16 Mr Li advised the plaintiff to modify his work practices and that he should not perform activities above waist level or with his arms outstretched. On 13 April 2006, Mr Li injected the subacromial space of the plaintiff's right shoulder with local anaesthetic and steroid which gave the plaintiff some relief from the pain. On 19 July 2006, the plaintiff told Mr Li that the pain in his right shoulder was persisting, and that the relief obtained through the injection had worn off. Mr Li then advised the plaintiff not to work as a chef.[9]
[9]PCB 64c
17 The plaintiff was off work until 8 May 2006, when he returned to work on restricted duties, working six hours per day, three days per week at the Kensington Community Outreach Centre undertaking kitchen work which involved the preparation and service of meals.
18 Mr Li reviewed the plaintiff on 3 August 2006. He had referred the plaintiff to have an MRI scan which was undertaken on 24 July 2006. According to the radiologist, it disclosed moderately severe right AC joint degenerative arthritis, partial outer under surface right supraspinatus tendon tear associated with tendonosis and a torn or frayed superior glenoid labrum.[10]
[10]PCB 52
19 Dr Asthana certified the plaintiff as unfit for work by 22 November 2006. The plaintiff has not returned to any work since. Dr Asthana was of the opinion that the plaintiff should not engage in kitchen work because it would aggravate the condition of his right shoulder. However, he considered that the plaintiff could do light work, such as office or administrative work.[11]
[11]PCB 28
20 Dr Li reviewed the plaintiff on 20 March 2007. The plaintiff told him that he was experiencing ongoing right shoulder pain, and also neck and right arm pain. He referred the plaintiff to have a CT scan which disclosed some abnormalities in the plaintiff's neck at C4-5 to C6-7. Mr Li referred the plaintiff to Mr Justin Hunt, orthopaedic surgeon, for an opinion regarding any likely neck pathology which might be the cause of the plaintiff’s right shoulder and arm pain.[12]
[12]PCB 64c
21 The treatment of the plaintiff’s right shoulder was then overtaken by the development of left shoulder and elbow pain. I think it is sufficient to briefly summarise what then happened.
22 Mr Li saw the plaintiff on 18 May 2009. He referred the plaintiff to have an ultrasound of his left shoulder, and other treatment. On 7 September 2009, he performed a left shoulder arthroscopic subacromial decompression and open rotator cuff repair.[13] The plaintiff made a good recovery from the surgery to his left shoulder and has been left with minor symptoms.[14]
[13]PCB 52-54.
[14]PCB 64d-64e and Transcript 26
23 The plaintiff also suffered from bilateral carpal tunnel syndrome, which appears to have been diagnosed in early 2007.[15]
[15]PCB 17 and 64c
24 The plaintiff continued to complain to Mr Li of pain in his right shoulder. Mr Li reviewed the plaintiff on 20 July 2010. He had referred the plaintiff to have an MRI scan which was undertaken on 23 June 2010. According to the radiologist, it disclosed an oblique high-grade partial full thickness tear of the supraspinatus tendon 9 millimetres in length, and a small tear of the posterosuperior labrum of just over a centimetre in length.[16] Mr Li recommended that the plaintiff undergo further surgery to his right shoulder.
[16]PCB 139a-139b
25 There was a delay in WorkCover funding for the second episode of surgery on the plaintiff’s right shoulder, but it was eventually given. On 7 May 2012, Mr Li performed an arthroscopic labral debridement with a subacromial decompression and excisional arthroplasty of the acromioclavicular joint followed by an open rotator cuff repair and longhead biceps tenodesis.[17]
[17]PCB 64f-64g
26 Mr Li last reviewed the plaintiff on 25 March 2013. At that stage, it was ten months following the second episode of surgery to the plaintiff’s right shoulder. He considered that the plaintiff was making slow, but steady progress. He considered that the rotator cuff had good strength, as did the biceps. He advised the plaintiff that no further treatment was proposed for his right shoulder and that exercises and physiotherapy should be continued as part of his right shoulder rehabilitation.[18]
[18]PCB 64(g)
27 Mr Li considered that the prognosis for the plaintiff’s right shoulder was fair to good. He considered that it was worse than the left shoulder in terms of severity of pathology and the surgery performed. He was asked to consider the plaintiff’s capacity for suitable employment. His opinion is quite unsatisfactory in that respect, because it is rather vague and more of a musing about what the plaintiff might be able to do and how he might be able to go upon a return to work than anything particularly concrete. I will return to his opinion in that respect later in these reasons.[19]
[19]PCB 64(i)
The Medico-legal Assessments
28 Mr Reid, general surgeon, examined the plaintiff on 4 March 2013. In relation to the right shoulder, Mr Reid considered that the plaintiff had suffered a rotator cuff injury with a tear of the supraspinatus tendon and subacromial bursitis. He added that he considered that the plaintiff had suffered a probable torn biceps tendon, degenerative changes in the right acromioclavicular joint and fraying of the labrum of the right glenoid. He considered that there was also a Regional Pain Syndrome at work affecting the plaintiff's right upper limb.
29 Mr Reid considered that there were clinical signs which he found suggestive of a tear of the right biceps tendon at or near the shoulder joint. He suggested the need for an ultrasound examination to confirm or exclude his clinical diagnosis. He considered that it was possible that the plaintiff might need a biceps tendon repair. He considered that the condition of the plaintiff’s right shoulder would restrict movement of his right arm, preventing elevation of the right arm above shoulder level, and would reduce his ability to carry weights in his right hand of more than 5 kilograms. He also considered that the suspected Regional Pain Syndrome affecting the right upper limb would probably cause the plaintiff discomfort in the whole of that limb especially if he moved his right upper limb excessively.[20]
[20]PCB 128w-128x
30 The defendants had the plaintiff examined by a number of medical practitioners. The first was Dr Wallin, occupational physician, who examined the plaintiff on 24 May 2005 and 3 June 2010. Following his second examination of the plaintiff, he provided a lengthy report dated 3 June 2010. There was nothing remarkable about the history taken by Dr Wallin nor his analysis of the treatment provided to the plaintiff. The part of his opinion which Mr Jewell emphasised is the impact upon the plaintiff’s capacity for suitable employment by the impairment of function of his right shoulder. Dr Wallin said:
“ I advise that his active right shoulder disability which obviously did develop in the course of his employment has not improved and it has resulted in him being extremely marginalised in the workplace unfortunately in spite of the fact that he would still be keen to be in the work system. He does appear at present to be assessable as having no capacity for employment relating to his right shoulder joint and I advise that it appears that his condition has plateaued out and he does appear to have a poor prognosis and therefore at present he does appear probably to be assessable as having no current capacity for employment at present or in the foreseeable future.”
31 In relation to having a current work capacity, he then said:
“I advise that there is no doubt that he is definitely permanently unfit to ever engage in his preinjury employment.”
32 And then, in relation to a capacity for suitable employment, he said:
“I advise that based on his significant inability to use his right arm, that he is probably assessable at this stage as having no current capacity for suitable employment.”[21]
[21]DCB 37
33 Mr Miller, occupational health consultant, examined the plaintiff on 9 May 2006. His opinion is in a similar vein to Dr Wallin. His clinical examination revealed a moderate disability of the plaintiff’s right shoulder based upon underlying pathology of chronic supraspinatus tendinopathy and subacromial bursitis. He considered that it was possible that the plaintiff would require further surgery to his right shoulder. He also considered that the plaintiff was incapacitated and would be incapacitated indefinitely for his pre-injury duties, but was capable of working with restrictions avoiding the use of his right arm above shoulder level, avoiding highly repetitive dextrous or forceful use of his arms, avoiding prolonged firm gripping with his hands, and avoiding lifting in excess of 5 kilograms. The reference to gripping appears to me to be related to the plaintiff's bilateral carpal tunnel syndrome.[22]
[22]DCB 44-45
34 Mr Miller was asked to consider an offer of suitable employment dated 9 January 2006. At that time, the plaintiff was working five hours per day, three days per week. Mr Miller considered that over a nine-week period, the plaintiff could increase his hours to full time. However, he put a rider on that opinion, that serving meals in the kitchen work should be undertaken at a rate which was comfortable for the plaintiff.[23]
[23]DCB 46-47
35 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 26 September 2006. Mr O’Brien considered that the plaintiff was experiencing active rotator cuff pathology, and that the degree of restriction of movement raised the possibility of some capsulitis of the glenohumeral joint. He noted that the plaintiff was not responding to conservative treatment. He did not consider that there was an indication for further surgery. He considered that the plaintiff’s prognosis was guarded, but at the same time he noted that the plaintiff was working five hours per day, three days per week and that he was physically capable of increasing his hours.[24]
[24]DCB 57-58 and 59
36 Mr O'Brien re-examined the plaintiff on 23 September 2009. The opinions he expressed following that examination were not much different from what he had said previously, although he noted that the plaintiff had recently undergone surgery to his left shoulder which made it difficult for him to assess the plaintiff's capacity for suitable employment.[25] He re-examined the plaintiff again on 31 January 2011. He was aware that the plaintiff was to undergo further surgery on his right shoulder. He found quite severe painful restriction of movement in both shoulders on examination. He considered that there were some non organic factors at play in the plaintiff’s presentation; however, he considered that the plaintiff was totally incapacitated, and he added that on the basis of his examination of the plaintiff’s right shoulder, that it would make the plaintiff unemployable.[26]
[25]DCB 63-64
[26]DCB 64D
37 Dr Fraser, rheumatologist, examined the plaintiff on 8 January 2007, 16 October 2009 and 12 January 2011. On the last occasion on which he examined the plaintiff he was given a history by the plaintiff that he was able to do very little. Mr Chamings emphasised that the plaintiff told Dr Fraser “he can only do light things such as make a sandwich or a cup of tea”. Dr Fraser was aware that further surgery was proposed. He doubted that the plaintiff had suffered a compensable injury to his right shoulder. Otherwise, he considered the plaintiff was fit for full-time suitable employment as a reservations clerk, functions/events coordinator, catering manager and general clerk. He also noted that there were some non organic factors at play in the plaintiff’s presentation.[27]
[27]DCB 83-85
The Plaintiff's Evidence
38 In his first affidavit sworn 10 December 2009, the plaintiff described the pain, restriction of movement, and interference with his working and nonworking life during the time he was treated by Mr Li.[28] As at December 2009, he described the consequences of the injury to his right shoulder as follows:
“The pain and restriction of movement affects my daily activities. My main interest was cooking, but I have difficulty lifting saucepans and using my right hand to cut vegetables. I can no longer play pool which I enjoyed doing at the time of my injury, because I am unable to manoeuvre my arm into the correct position. I am unable to mow the lawn and we have to employ a gardener. I find driving difficult because of the movements of the neck and shoulder that are required. My wife drives if she is available. Because my wife works I try to do little things in the house to help such as loading the dishwasher, but I am not able to do very much that requires the use of both hands because this causes pain in my shoulder and neck. I try to walk to keep fit but otherwise do very little each day.”[29]
[28]PCB 15-18
[29]PCB 18
39 In his second affidavit sworn 17 May 2013, the plaintiff described the further surgery performed by Mr Li. He also described having physiotherapy treatment, and now being treated by Dr Muzzafar, general practitioner, since the retirement of Dr Asthana. He used Panadol, Advil, Voltaren and Voltaren Gel for pain relief for his right shoulder. He described the consequences of the injury to his right shoulder as follows:
“ I continue to have an aching pain in my right shoulder which is at times severe and goes right down to my elbow. I also have a burning sensation in the area where the muscle is torn. At night I get a sharp stabbing pain in my upper arm and the burning feeling is worse making it very difficult to go to sleep, which makes me very tired during the day. My right arm is weak and it is painful to lift my arm above shoulder height, or move it around, or stretch out. I continue to have similar problems with my left shoulder following surgery but not as bad. I have to rely a lot on my left arm to protect my right arm. The pain and discomfort continues as described in paragraph 18 of my previous Affidavit.
My daily activities continue to be restricted mainly by my inability to use my right arm. Any job that requires lifting my arm away from my body causes increased pain, although I try to do as much as I can at home to help my wife. There has been no improvement since my last Affidavit.”[30]
[30]PCB 24(b) – 24(c)
40 The plaintiff's reference to a muscle tear is based upon a discussion he had with Mr Li and his treating physiotherapist. There was no evidence from Mr Li or the physiotherapist to support the evidence of the plaintiff, although it is a matter on which Mr Reid commented, that he considered that the plaintiff had suffered a probable torn biceps muscle.
41 The plaintiff’s right arm was immobilised in a sling for three to four months following the second episode of surgery on his right shoulder. He commenced physiotherapy doing light exercises, but was told by the physiotherapist that he had some damage to the biceps muscle and as a consequence he should stop doing the exercises. The plaintiff says that he cannot now do the exercises. He is now having physiotherapy once a month. He presently takes Panadeine Forte for pain relief.[31]
[31]Transcript 26-28
42 Mr Chamings cross-examined the plaintiff that he has retained a capacity for suitable employment. He put to the plaintiff that he could undertake work organising special events; as a catering manager; as a general clerk; as an administrative assistant, and as a receptionist. The plaintiff conceded that he could undertake work of that kind, but it would depend upon the extent to which it was ‘hands on’ work; in other words, the extent to which it would place stress and strain on his right shoulder and arm.[32]
[32]Transcript 21-24
43 Mr Chamings also cross-examined the plaintiff with respect to his day-to-day activities such as doing housework, gardening, and walking. He put the history taken by Dr Fraser to the plaintiff. In particular that he told Dr Fraser that he can only do light things such as make himself a sandwich or a cup of tea. The plaintiff said that he is limited to activities of that kind. Mr Chamings also put to the plaintiff that he has given histories to medical practitioners of having a high degree of pain, putting it on a scale of nine out of ten in terms of severity. The plaintiff agreed that his activities are limited and that he has a high degree of pain, and that his right shoulder is relatively easily aggravated.[33]
[33]Transcript 29-33
44 The cross-examination was a prelude to film shown of the plaintiff taken on 3 December 2010, 10 December 2010 and 16 April 2013.[34]
[34]Exhibit 2
45 The parts of the film taken on 3 December 2010 which Mr Chamings emphasised are:
· At 9:26am, the plaintiff raised his right arm and pointed with his right hand.
· At 9.31am, the plaintiff raised his right arm with his right elbow in a crooked position.
46 The film taken on 10 December 2010 was very brief and showed very little. The parts of the film taken on 16 April 2013 which Mr Chamings emphasised are:
· At 10:18am, the plaintiff was at an oval walking laps. He was swinging his arms by his side. His arms were hanging down. The best I could make of it was he was rather more swinging his arms from his elbows, but there was movement at the shoulder.
· At 10:26am, the plaintiff broke into a slow jog for only a short distance. The best I could make of what I saw was that he appeared to have his arms crooked at the elbows. The movement from the elbows was relatively modest, but there was movement at the shoulder.
· At 10:48am, the plaintiff drove his car to a service station. He bent to about 45 degrees or so at the back and he leant his left hand against the side of his car. He appeared to remove the caps off the valves on the tyres of his car using his right hand. What he was actually doing with his right hand was obscured from view; however, he admitted in later evidence that is what he was doing.
· At 10:53am, he was holding an air hose. He raised his right arm outwards at shoulder level to stretch out the air hose. He appeared to do it freely, spontaneously and without restriction. He then bent down to apply the air hose to the tyres of this car. Again, he supported himself using his left arm against his car.
· At 10:56am, he stretched his right arm out while winding up the air hose.
· At 11:03am, he was at a car wash. He held a long-handled brush in both hands. He moved the brush towards his body, then outwards, as it was applied to the side of his car. He then took a hose in his right arm and squirted water onto his car. He raised the hose to about mid chest height with his right arm.
47 Mr Chamings cross-examined the plaintiff about what was seen in the films. The plaintiff admitted that the film demonstrated use of his right shoulder. The plaintiff attempted to explain what was seen on the films. It was an attempt to dilute what were quite obviously movements of his right shoulder and arm. Part of his explanation was that even when doing the activity shown in the film, he was in severe pain. Despite saying earlier that he does not swing his right arm when he walks, and when he walks he has his right hand in his pocket, he conceded that the film showed that he did not have his right hand in his pocket. His explanation for that was that he walks five days a week and that the video depicted only one day out of the five. I assume he meant that on the other days he would have had his right hand in his pocket.[35]
[35]Transcript 37-42
Findings
48 There was no challenge to the plaintiff’s evidence that he was injured in the manner described in his first affidavit. There was no challenge to the early medical evidence that the plaintiff presented to Dr Asthana on 9 April 2005 complaining of an injury to his right shoulder. There was no challenge to the balance of the medical evidence supportive of the conclusion that the plaintiff suffered injury to his right shoulder in the course of his employment with the first defendant.
49 Although Mr Chamings relied upon part of Dr Fraser’s opinions, he did not press Dr Fraser’s opinion which doubted that the plaintiff had suffered a compensable injury. The real challenge mounted by Mr Chamings was that the pain and suffering and loss of earning capacity consequences described by the plaintiff were not as grave as he said they were.
50 What I think is abundantly obvious from the evidence of the plaintiff is that he did suffer an injury to his right shoulder as described. The relative seriousness of the impairment of function of the injury to his right shoulder can be partly measured by the fact that the plaintiff has undergone two episodes of surgery which have improved the pain and restriction of movement experienced by the plaintiff to some degree, but notwithstanding that, the plaintiff has an actively symptomatic right shoulder which no doubt impairs its function and impinges upon his capacity to undertake the activities of work and activities outside his work.
51 Mr Jewell placed particular emphasis on the opinion of Dr Wallin’s evidence, which I have referred to in some detail in paragraphs 30-32 above. His opinion was provided prior to the second episode of surgery. Mr Jewell submitted an assessment of the subsequent medical treatment provided by Dr Li demonstrates that even after the second episode of surgery, nothing had really changed when a comparison is made with how the plaintiff was functioning before that second episode of surgery occurred. On my assessment of that medical evidence, it appears to me that there is merit in Mr Jewell’s submission.
52 Mr Jewell said that if I was persuaded of the merit in that submission, that it must follow that the plaintiff did not have a work capacity either at that time, and would not regain such a capacity in the foreseeable future. Mr O’Brien was of a similar opinion. Mr Miller was of a similar opinion regarding the nature and extent of the plaintiff’s injury to his right shoulder, but considered that the plaintiff could work and no doubt based that latter opinion on the fact that the plaintiff was working at the time he examined him. However, what is clear is that the plaintiff stopped working in November 2006 based on certificates provided by Dr Asthana that he was unfit to engage in kitchen work. That was some time after Mr Miller last examined the plaintiff.
53 The plaintiff said that he cannot do the exercises he was instructed to do by the physiotherapist because he was told by the physiotherapist that he has a torn bicep muscle. The problem with the bicep muscle has been confirmed by Mr Reid, who considered that the plaintiff has suffered such a muscle tear, and that it will possibly require surgical repair.
54 Mr Jewell submitted that I should not be persuaded by the opinion of Mr Li regarding the plaintiff’s capacity for work. In essence, Mr Jewell submitted Mr Li’s opinion that the plaintiff is not fit for his pre-injury work is unassailable. He submitted that I should not accept Mr Li’s opinion that the plaintiff might be capable of suitable employment because Mr Li was unable to say how many hours the plaintiff could work, or the number of days per week, and what work the plaintiff could perform. Mr Li stated the hours over which the plaintiff could perform such work will depend upon the type of work duties he is to perform in light work. Otherwise Mr Li said that he is not in a position to give an opinion in that regard because the plaintiff was not working, and if he were given a work description he “might” be able to estimate the plaintiff’s capacity to work in light work.[36]
[36]PCB 64j
55 Mr Jewell submitted that Mr Li is not an expert in occupational medicine. He referred me to the caution expressed by the Court of Appeal in its joint judgment in Giankos v SPC Ardmona Operations Ltd,[37] in which the Court observed:
“Expert opinion evidence must relate
sto matters which are wholly or substantially within the expert’s field of expertise. It follows that medical opinions about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall outside the doctor’s area of expertise. Mr Horton’s opinion that ‘he would have thought’ that the appellant was fit to return to forklift driving, comes close to transgressing this boundary.”[38]
[37][2011] VSCA 121
[38]paragraph 96
56 Mr Li is not a medico-legal consultant; however, the observation made by the Court of Appeal is nonetheless equally applicable to a medical practitioner who expresses an opinion where there is a medical practitioner of particular skill and training whose opinion should be preferred. Whilst Mr Li’s opinion carries significant weight, he is not in the same category of expertise as Dr Wallin.
57 I am strongly inclined to conclude that I should accept most of the plaintiff’s evidence that he has suffered a significant injury to his right shoulder which so impairs the function of his right shoulder that he is unable to engage in his pre-injury work nor the alternative duties he was undertaking in kitchen work just before Dr Asthana certified him as being unfit for work in November 2006.
58 I am also strongly inclined to accept that the plaintiff is not fit for suitable employment. I am fortified in reaching that conclusion because it is essentially the opinion of Dr Asthana as at November 2006, Dr Wallin, and also Mr O’Brien. It appears to me that there is also some support for that conclusion in the opinion of Dr Miller and also Mr Li, both of whom considered that the plaintiff was unfit for his pre-injury work, but was able to work in suitable employment with restrictions.
59 Against the foregoing are the submissions made by Mr Chamings that I should doubt the plaintiff’s credit for essentially two reasons. Firstly, the plaintiff’s evidence that he has pain on a scale of nine out of ten, and is rendered so incapacitated that he can do little more than make a sandwich and a cup of tea is exaggeration, and secondly, the film is an objective demonstration of the fact that the plaintiff has some measure of free and painless movement in his right shoulder.
60 I am in not much doubt that the plaintiff has exaggerated the extent to which his right shoulder injury disables him. I am not persuaded that the exaggeration is significant when the evidence is considered as a whole.
61 I do not accept that the plaintiff has pain measured as nine out of ten. I do not accept that the plaintiff has no capacity to move his right shoulder through some degree of movement as was shown on the films taken on 3 December 2010 and 16 April 2013. I do not accept that the plaintiff needs to have his right hand in his pocket when he walks. I do not accept the plaintiff’s attempt to explain what the film demonstrated of his capacity to move his right shoulder with some freedom. His explanations were an attempt to maintain his position that he is significantly disabled, and that what was shown on the films is not demonstrative of what he is like on a day-to-day basis.
62 However, film can be both beguiling and seductive. Any degree of apparent free movement of a body part which has been impaired is elevated to the rank of being evidence which is in conflict with the evidence of disablement. I think it is important for a judge in my position to be careful to place credit material, such as film, in its proper perspective and in the context of the whole of the evidence.
63 The films do not amount to a significant impact upon the plaintiff’s evidence of the extent of his disablement. The movements he was able to undertake with his right shoulder on 3 December 2010 were relatively modest. The movements he was able to undertake on 16 April 2013 when handling the air hose were somewhat more than modest. I do not think the fact that the plaintiff did not have his hand in his pocket when he was walking and jogging around the oval was all that significant because he did not appear to me to be swinging his arms by his side to any great extent. I do not think that reaching down to remove the caps off the valves of his tyres and use the air hose to put air into the tyres of his car is all that significant either. I should add that the plaintiff has not said that he cannot lift his right arm above shoulder height. In is second affidavit sworn 17 May 2013, he said that it is painful to lift his right arm above shoulder height not that he cannot.
64 Furthermore, when these films are placed in the context of the whole of the evidence, here is a man who suffered a dramatic injury to his right shoulder and has undergone two major episodes of surgery; who has an unresolved tear of a bicep muscle; was advised by Dr Asthana to stop work on November 2006, and was advised by his physiotherapist not undertake exercises because they caused an increase in the pain in his right shoulder.
65 In Dwyer v Calco Timbers Pty Ltd (No 2),[39] Ashley JA observed that impairment and the consequences resulting from the impairment is concerned with what has been lost, but the significance of what is lost relevant to the seriousness of consequences may be informed to an extent by what has been retained.[40] I propose to consider this matter in that manner. Furthermore, I have followed the approach enunciated by Tate JA in Sutton v Laminex Group Pty Limited[41] in determining whether the pain and suffering consequences meet the statutory test.
[39][2008] VSCA 260
[40]paragraph 27
[41][2011] VSCA 52, and in particular, at paragraphs 46 and 114
66 In terms of pain and suffering, I am satisfied that the plaintiff has consequences which impair the function of his right shoulder, and has consequences which are serious:
· He has persistent pain in his right shoulder. He has a burning sensation in his right upper arm. He has weakness in his right shoulder and arm. He has trouble lifting his right arm above shoulder height or through a significant range of movement.
· He suffers a sharp stabbing pain in his upper arm at night, making it difficult for him to get a night’s sleep. The result of a poor nights sleep is that he is very tired the following day.
· He has had a significant amount of medical treatment since he first consulted Dr Asthana. He continues to have medical treatment. He is to see Dr Li for review in July 2013. He is presently taking medication, now comprising Panadeine Forte for pain relief.
· He has an unresolved tear of the right biceps muscle which prevents him from having productive physiotherapy treatment, and impairs his ability to undertake exercises to strengthen his right shoulder and arm.
· He is impaired in his capacity to undertake household chores, to drive a car, to mow his lawns and to engage in like activities because of the impact such activities have on his right shoulder in terms of pain.
· He is not able to work as a cook, which was his chosen vocation. He is not able to work in the light work as a kitchen worker. I accept that he is in all probability unable to engage in any work involving manual operations which would place stress and strain on his right shoulder and arm.
67 The conclusion I have ultimately reached is that the plaintiff was fully capable of engaging in his work as a cook and in a range of domestic activities without interference. When a comparison is made with what he was like before he suffered injuries to his right shoulder and the level of his disablement he has now, I think his pain and suffering consequences easily satisfy the statutory test.
68 I make the same finding relevant to loss of earning capacity consequences. My reasons for so finding are: firstly, not only is the plaintiff unable to return to his pre-injury work, but he is also unable to undertake the alternative work he did in kitchen work which was significantly lighter than his work as a cook; secondly, he was unable to work in kitchen work because of the extent to which it imposed stresses and strains on his right shoulder which is the reason why Dr Asthana certified him as unfit for that work. I accept the plaintiff’s evidence that the tasks involved in the alleged suitable employment put to him by Mr Chamings are likely to have aspects of manual operations which the plaintiff will probably not be able to tolerate.
69 Furthermore, the plaintiff is now sixty-one years of age. He has been out of the workforce since November 2006. Between the time he stopped work in November 2006, the plaintiff has been under active treatment, which is evident from the reports of Dr Asthana and Mr Li. What is significant is that he is not fit for employment which would result in an increase in pain in his right shoulder.
70 I have considered the evidence regarding the plaintiff’s claim that his loss of earning capacity consequences result in him being essentially totally incapacitated in the context the definition of “suitable employment”. I think for all practical purposes he is, and I think that is borne out by the whole of the evidence, but in particular, the evidence of Dr Wallin, Mr O'Brien, and Dr Asthana. The conclusion I have ultimately reached is that the plaintiff is not fit for suitable employment, and that the loss of earning capacity consequences meet the statutory test.
Conclusion
71 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of his employment with the first defendant.
72 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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