Devion v Victorian WorkCover Authority
[2017] VCC 69
•14 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00511
| LOUIS JOSEPH GERARD DEVION | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2016 | |
DATE OF JUDGMENT: | 14 February 2017 | |
CASE MAY BE CITED AS: | Devion v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 69 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to both shoulders – causation – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; St Mary’s School v Askwith [2011] VSCA 90; Peak Engineering v Anor v McKenzie [2014] VSCA 67
Judgment: Applications dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Ryan Carlisle Thomas |
| For the Defendant | Mr P Elliott QC with Mr R Lewis | Wisewould Mahony Lawyers |
HER HONOUR:
Preliminary
1 The plaintiff was employed by Yakult (“the employer”) as a production manager and, on 29 March 2011, whilst cleaning the inside of a milk vat, he slipped to the floor, landing on his left side (“the incident”)
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under ss(a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for pain and suffering only. The body function said to be impaired is the function of the shoulders.
3 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
4 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments, … fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
5 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
6 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
8The defendant accepted that the plaintiff had suffered a left shoulder injury in the course of his employment, but disputes that the impairment consequences in relation thereto are “at least very considerable”. However, the defendant denied the plaintiff had suffered a right shoulder injury in the same incident.
9Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to, and explain the conclusions reached in my judgment.
Relevant background
10 The plaintiff is fifty-two years of age, having been born in Mauritius in September 1964. He came to Australia in 1992. He lives with his wife and their two adult children.
11 Whilst in Australia, the plaintiff undertook study in food technology. He started work with the employer in 1999 as a laboratory assistant. At the time of the incident, he was working as an acting production manager.[3]
[3]Transcript (“T”) 5
12 The plaintiff has no relevant history of neck or shoulder pain.
13Four days prior to the said date, the plaintiff was made aware he was going to be made redundant.[4]
[4]T27
14The plaintiff deposed that on the said date, he was cleaning inside the culture tank number 5 when he slipped on the tank floor, which was slippery, and fell onto the ground. Initially, he was aware of left upper arm and left shoulder pain, but he also experienced neck and right shoulder pain.
15The plaintiff attended his general practitioner, Dr Steele, who arranged a cervical spine x-ray in late March 2011. The plaintiff was advised he did not have any fractures or significant pathology in his left shoulder and was sent for an ultrasound because of ongoing pain in that shoulder. He was advised that investigation showed bursal fluid on the joint.
16In cross-examination, the plaintiff agreed that when he saw Dr Steele on 5 April 2011, he did not tell him of any right shoulder problem. The plaintiff signed a Claim Form the following day in which he wrote the injury was to the left shoulder and back. He was referring to his upper back which was where he felt the pain after he had fallen on his left side.[5]
[5]T4
17The plaintiff agreed that in subsequent attendances with Dr Steele in April 2011, he did not mention any right shoulder problem.[6]
[6]T5
18Soon after the incident, the plaintiff experienced pain into the left side of his neck from his arm and in the middle of the top part of his back.[7] As he could not move his arm to that area whilst standing in the witness box, he pointed to that position on his instructing solicitor’s back.[8]
[7]T6
[8]T6
19Dr Steele prescribed medication and referred the plaintiff for physiotherapy, which he commenced with Mr Gross on or about 2 May 2011.
20The plaintiff confirmed that he told Mr Gross he fell on the floor of the tank, landing on his left shoulder. He had pain in the left shoulder and back and by the time he saw Mr Gross, the plaintiff had become aware of restricted movement in his right shoulder and became “more aware of his situation”. He then said he had pain in both shoulders “all the way” since the injury.[9]
[9]T8
21The plaintiff then said he did not exactly know he had any problem in his right shoulder before he was asked to move it by Mr Gross. Because he was not doing much, the plaintiff did not feel anything in the right shoulder. Dr Steele had simply prescribed medication and told him to rest.[10]
[10]T9
22The plaintiff agreed he did not have any pain in his right shoulder until he saw Mr Gross and, after that, his right shoulder became worse than the left.[11] He had pain when asked by Mr Gross to move his right shoulder, but did not have it beforehand.[12]
[11]T10
[12]T14
23The plaintiff’s position with the employer was made redundant in or about April 2011. Thereafter, he lived on his package and some assistance from Centrelink. He received some WorkCover payments in relation to his left shoulder injury, but never the right.[13]
[13]T28
24The plaintiff confirmed the history of the incident recorded by Dr Mutton. He agreed he told Dr Mutton in July 2011 that his condition was quite intermittent.[14] He agreed that he may have had a full range of left shoulder movement at that time. He told Dr Mutton he had a problem moving his neck. The plaintiff agreed his main problem was then his right shoulder which was stiff and tight and he had trouble moving it.[15]
[14]T11
[15]T12
25The plaintiff confirmed that he told Mr Kossmann that he fell on his left side and had pain in his left upper arm and shoulder and also experienced pain in his neck and right shoulder. Following the incident, he had pain in his back. The right shoulder restriction came on later.[16]
[16]T13
26The plaintiff agreed, when he saw Mr Kossmann in 2012, his right shoulder was worse than his left. It fluctuated. He had made a relatively good recovery from his left shoulder injury. As far as he could recall, the pain fluctuated, depending on his level of activity. If he used his left, there would be a flare up. From the time of the incident he had always had some kind of pain. He always had left shoulder pain, but it never fully recovered. He agreed, as time went on, the left shoulder pain lessened.[17]
[17]T15
27The plaintiff agreed when examined by Mr Francis in June 2012, he had an almost full pain free range of left shoulder movement, but there was some restriction with his right, depending on his activities.
28The plaintiff agreed he told Mr Jones in mid 2012 that the left shoulder pain had gone away, but it never got better totally. He acknowledged he might say it felt better. He could move it freely at times, and other times he could not.[18]
[18]T16
29The plaintiff was referred to orthopaedic surgeon, Mr Solaiman, for treatment of bilateral shoulder pain. He first saw the plaintiff in July 2013.
30The plaintiff confirmed he told Mr Solaiman of an inability to move his right shoulder immediately post incident. His right shoulder was worse than his left at that time of the examination.[19]
[19]T17
31Mr Solaiman advised the plaintiff he was suffering from a frozen right shoulder and arranged an ultrasound which showed tendinitis. A repeat x-ray and an MRI scan of the right shoulder was undertaken. Thereafter, Mr Solaiman advised the plaintiff he did not require any further treatment, but to continue with physiotherapy and hydrotherapy.
32The plaintiff agreed he probably last had physiotherapy in September 2011.[20] Prior to that date, he was having physiotherapy to his left shoulder three times a week, funded by WorkCover. Treatment ceased following an examination by Dr Mutton who did not did not see any point in it continuing.[21]
[20]T12
[21]T20
Work post incident
33The plaintiff spent two years trying to obtain a permanent job after he left the employer. He partly blamed that situation on his bad shoulders as his condition dramatically decreased the potential jobs he could apply for.
34The plaintiff commenced work in August 2013 with Florida Cheese in Thomastown as the quality assurance manager and remains in that role. He took that job as it was the only one he could get.[22]
[22]T28
35The Florida Cheese factory is 60 kilometres from where the plaintiff lives and it is an hour’s drive or more, depending on the traffic to and from work. He does have problems driving his car, but he has to work. He has problems with head checks and uses both hands to drive.[23]
[23]T29
36The job is not hands on and, as of June 2015, the plaintiff deposed he was able to manage with his duties. He could not do any work requiring regular manual or repetitive duties involving his arms.
37The plaintiff currently works fulltime, forty hours a week, a bit more at times, with just a few more hours to finish up what he needs to do. He does not do overtime as such. The job involves checking up on the quality of cheese and how the factory is running. It is a responsible job.[24]
[24]T29
38In his recent affidavit, the plaintiff confirmed his present job is generally light and mainly supervisory in nature; however, he is required to attend within the factory and carry various items when necessary. His duties are largely manageable.
39The plaintiff suffers increased pain in both shoulders when he is required to lift an assortment of swabs in a basket. Weights of between 5 and 10 kilograms even cause him pain and he also has increasing pain opening the cooler doors with either arm.
40The pain has remained present in both shoulders. The plaintiff is right hand dominant and uses that arm more than the left; however, his left arm has remained painful and symptomatic and has not improved over time.
41The plaintiff’s pain has persisted despite not doing repetitive or heavy work. He does not believe he could have continued to work in his previous position due to his shoulder injury.
42As of June 2015 when he swore his first affidavit, the plaintiff described ongoing pain in both shoulders, with the right worse than the left. He also had pain in the middle of his shoulder blades. The pain in both shoulders was aggravated by elevating his arms above shoulder height or moving them out in front of him, or to the side, particularly holding any items. He was able to hold things, as long as he held his arms and shoulders close to his body.
43As of June 2015, the plaintiff had been advised to have a cortisone injection, but he was not keen to do so. He only took medication when the pain was very bad and then generally took paracetamol, preferring not to take anything too strong. He just had to really be careful with what he did and tried to avoid housework where he could but he just had to get on with his life.
44Since mid 2015, the plaintiff has had ongoing symptoms in both arms, and further ultrasounds have been carried out. Dr Steele referred him for cortisone injections to both shoulders in June 2016.[25] The plaintiff was a little reluctant to have this procedure because he had to work and he did not know how his work would be affected.[26] He underwent these injections because he had an increase in pain.[27] However, the injections did not help because he still has problems moving his shoulders.[28]
[25]T20
[26]T26
[27]T34
[28]T21
45The plaintiff was then referred to Mr Raleigh for further consultation. Following an MRI scan, Mr Raleigh advised that the scan showed minor problems in both shoulders and recommended he return to the physiotherapist to help him improve his movement.[29]
[29]T19
46The plaintiff’s left shoulder is worse than the right, but no operation has been indicated. When last seen by Mr Raleigh, the plaintiff had a significant amount of pain and it was difficult to perform the exercises he was asked to do. There are no arrangements for further reviews by Mr Raleigh.
47The plaintiff now has limited the amount of medication he takes to between four to six Panadol a week and Panadeine Forte, no more than once a fortnight. However, he would prefer not to take anything and as a result thereof, he had suffered through some very painful evenings trying to get through without tablets. He also takes Nurofen; however, less frequently, and he has not taken any in the past month or so. The plaintiff’s need for medication for hypertension is one of the reasons he limits his intake of pain medication as it is contraindicated to his hypertension medication to some degree.
48Until June 2015, Dr Steele prescribed Panadeine Forte, which the plaintiff took on occasion, depending on his level of activity. He has been taking Panadeine Forte pretty much since then and he last took Mobic a while ago.[30]
[30]T22
Activities
49In his first affidavit, the plaintiff described his pain being made worse by carrying anything too heavy or using machinery which vibrated, like a lawnmower, and he avoided doing these activities if he could. He had mowed the lawn a number of times post incident, causing him significant pain in both shoulder joints. While he had paid for the lawn to be mowed prior to the incident, the plaintiff now had no choice but to continue paying someone to do it. Prior to the incident, the plaintiff had always enjoyed gardening and being outside, given that he had worked indoors in factories for years.
50As the plaintiff has got older, it has become more painful to use both upper limbs to perform activities. Gardening used to mean a lot to him but is now limited as planting, weeding, pruning and tilling the soil are all two-handed activities and cause pain in both shoulders. The plaintiff still lives with his sister-in-law where there is a bit of gardening to do. He did the pruning a few weeks ago and had pain.[31]
[31]T30
51The plaintiff enjoyed bike riding before the incident, but avoided it thereafter as riding aggravated the pain in his shoulders because of the way he sat on the bike. Being unable to ride was a great loss to him as it was an activity he thoroughly enjoyed and was very passionate about for many years.
52The plaintiff last tried to ride a bike a couple of years ago.[32] Using the rear brake caused increased shoulder pain. He had tried to use an exercise bike his son bought recently but he had a problem holding on to the handlebars.
[32]T31
53Mr Jones was completely wrong when he reported in October 2016 that the plaintiff had given up bike riding prior to the incident. The plaintiff has been unable to ride since the incident because of increased shoulder pain.
54In 2009, the plaintiff completed the 100-kilometre component of the “Around the Bay in a Day Ride”. In 2010, he was training for the 250-kilometre ride; however, he could not compete in it because of his work commitments.
55Pre incident, the plaintiff rode his bike between 50 and 100 kilometres a week. This activity assisted with his fitness and he was very committed to improve. Since the incident, his weight has fluctuated as he is no longer able to do his preferred exercise.
56The plaintiff has never played a round of golf because of his shoulder pain. It was an activity he looked forward to trying, but never got the opportunity to do so.
57The plaintiff’s ability to do housework depends on the position he is in. He can dry the dishes and do cooking, but he still has flare ups. Even vacuuming, which the plaintiff did pre incident, causes pain to both shoulders and he now avoids doing it.
58The plaintiff can walk for about forty-five minutes to an hour. Doing so helps his blood pressure as well as his fitness, but it would be better to ride a bike.
59The plaintiff feels pain when showering and toileting. He uses both arms to wash his head and body and extremes of movement intensify his pain. He wipes his bottom with his right arm, a movement that causes him increased pain.
60The plaintiff is able to do the shopping, push trolleys, carry shopping bags and do activities that are light. He has to go shopping because his wife cannot drive.[33]
[33]T32
61The plaintiff does more arm exercises, goes for a walk and tries to do all the right things to feel better. However, he feels like he has lost strength in both arms and that his symptoms are worse.
62The plaintiff’s shoulder pains make it difficult for him to get a decent night’s sleep. It is almost impossible to sleep on either side without waking up. He now weighs 112 kilograms and when he turns during the night, he is woken by a significant increase in pain and it is difficult to get back to sleep. Accordingly, he feels quite weary and tires very frequently and he has learnt to live on reduced sleep over the years and just do his job, come home and rest.
63The plaintiff has lived with his left shoulder pain for more than five years and he believes his right shoulder pain has been around since that time; however, WorkCover has not accepted this is a workplace injury. He has no doubt this pain was from the incident.[34]
[34]T34
64The plaintiff believes he injured both shoulders in the incident and liability was only accepted for the left because he initially complained about the left.
65The plaintiff’s left shoulder pain is a discomfort that has remained constant over more than five-and-a-half years. The pain has fluctuated over time; however, he definitely feels it has worsened, having to undergo an injection a few months ago.
66The plaintiff’s right shoulder pain has also continued, requiring a cortisone injection in that shoulder. Activities involving his right arm aggravate this pain.
67Comparing pain in his shoulders is a difficult task. Because the plaintiff is right handed he tends to do things like write or use the right arm more frequently, and at times, he has described it as more painful than the left. The left shoulder, though is the site of the incident impact and he believes it is more restricted than the right. It takes less activity for his left shoulder pain to increase and he does not use it very much.
68The plaintiff confirmed that his left arm had remained painful and symptomatic and had not improved over time. He denied he had contradicted himself as to his complaints because the pain has always been there but fluctuated. It was never 100 per cent.[35] His left shoulder had improved at times, depending on some of his activities, but it did not mean there was 100 per cent improvement. The plaintiff confirmed his left shoulder is getting worse.[36]
[35]T24
[36]T25
69The plaintiff is right handed and uses his right hand more than the left, but if he has to use the left it would be more painful than the right.[37] Sometimes he needs to use both hands. While the plaintiff might have said over the years to examiners his left shoulder pain was almost resolved, the pain has always been there, it has never got to 100 per cent, and it depends on his activities, and it just flares up.[38]
[37]T26
[38]T27
70In re-examination, the plaintiff explained that his left shoulder is worse than at the time of the incident as is the right. Neither have recovered.[39]
[39]T34
The Plaintiff’s treaters
71Dr Steele at Pakenham Health initially saw the plaintiff on 30 March 2011. The plaintiff then told him that he had slipped on some soapy water while cleaning inside a tank at work, injuring his left shoulder and mid to upper back.
72 On examination, there were painful movements of the left shoulder and arm.
73There were subsequent attendances on 15 April, 29 April and 2 May 2011. when left shoulder and back pain were mentioned
74In his 2012 report, Dr Steele noted the plaintiff’s initial presentation was of mild back pain and left shoulder pain but it became apparent after an assessment by Mr Gross that the plaintiff had also injured his right shoulder in the fall.
75Dr Steele thought the plaintiff injured his back and shoulders while cleaning the inside of a tank. He diagnosed a musculoskeletal back strain and soft tissue injury to both shoulders.
76As of October 2016, Dr Steele thought the plaintiff was unfit for pre-injury duties and would be for the foreseeable future due to the physical injury he sustained whilst at work.
77Dr Steele thought the plaintiff was able to do his current job as a quality control manager, but he would have difficulty with jobs involving repetitive movements of his arms and shoulders and any climbing or heavy lifting.
78Dr Steele noted the plaintiff was also restricted in relation to bike riding and had been unable to ride since his injury, due to persistent shoulder pain. He thought the plaintiff would also be restricted in house cleaning and cooking, and would be unable to do the vacuuming due to shoulder and back pain. He would have similar difficulties with gardening, other than light pruning.
79Dr Steele noted the plaintiff would probably benefit from physiotherapy for his back and shoulder injuries and referred him to a shoulder specialist for advice about other treatment, such as cortisone injections. At that stage, he did not have the specialist’s report.
80Dr Steele thought the prognosis would be for long-term restriction in the plaintiff’s work capacity, as well as social, recreational and domestic activities, noting there had not been a significant improvement since the injury.
81Mr Douglas Gross, physiotherapist, first saw the plaintiff on 2 May 2011 on referral from Dr Steele. In his letter to Dr Steele of that date, Mr Gross thanked Dr Steele for referring the plaintiff with thoracic and shoulder pain.
82The plaintiff told Mr Gross he was at work, cleaning the walls of a tank. There was water on the floor and he slipped on it, and fell on the floor of the tank, landing on his left shoulder. The plaintiff told Mr Gross he felt it at that time, but by the end of the day, he was in considerable pain in his shoulder and had pain and stiffness in his back.
83On examination, there was marked loss of abduction in both shoulder joints, although there was more significant pain in the left. There was then no radiology, but Mr Gross suspected traumatic capsulitis in the left glenohumeral joint.
84The plaintiff was asked to fill out a shoulder pain and disability index in which he described a pain level of 50 per cent severity, particularly when pushing with the involved left arm and touching the back of his neck with his left hand.
85Mr Gross thought the plaintiff had probably strained the thoracic spine and costovertebral joints and caused traumatic capsulitis in the glenohumeral joint. He concluded the plaintiff incurred a traumatic strain through his lower cervical and thoracic spine and both shoulder joints when he fell at work.
86Noting the impact on the left shoulder in the work incident, Mr Gross commented the right shoulder injury may not have occurred at the time, since the plaintiff did not experience any pain then, although it seems unlikely he would not have noticed such an extreme loss of movement.
87Mr Gross thought it was quite possible that the right shoulder, this being the lesser of the injuries, the adrenalin release during the incident may have meant the plaintiff did not feel the injury at that time, even though it occurred then. If it was established that the right shoulder was not injured in the incident, Mr Gross noted one must also look at the possibility that a certain contribution of workload repetition would have contributed to the injury.
88Mr Gross thought the injury to both shoulders and the thoracocervical spine occurred during the incident.
89Mr Gross last saw the plaintiff in October 2011 when he required treatment to restore movement and re-strengthen his cervicothoracic spine and shoulder girdles.
90The plaintiff was referred to Mr Rabi Solaiman, orthopaedic surgeon, by Dr Steele in July 2013.
91Mr Solaiman noted the presenting history was a two-year history of bilateral shoulder pain and stiffness, with the right worse than the left. The plaintiff related the onset of symptoms to a fall two years ago when he was working as a production manager.
92On examination, the plaintiff gave a history of a very painful right shoulder with associated stiffness and inability to make any movement of the right shoulder immediately post injury. He progressively increased his range of motion. He had difficulties with elevation and overhead activities.
93Mr Solaiman noted the pain had significantly improved. The plaintiff was only taking occasional Panadol for pain relief and his main complaint was stiffness in the right shoulder.
94Following examination, Mr Solaiman thought the plaintiff’s clinical signs and symptoms were consistent with a frozen right shoulder, noting that the ultrasound revealed the presence of calcific tendonitis in the right shoulder. He organised repeat x-rays, as well as an MRI scan to exclude the frozen shoulder diagnosis.
95Mr Solaiman thought the x-ray did not show any significant abnormality, and the MRI scan did not show any evidence of adhesive capsulitis, or evidence of a rotator cuff tear.
96Mr Solaiman reassured the plaintiff he was going through the final stage of his frozen shoulder. He invited him to commence physiotherapy and hydrotherapy in order to improve his range of motion. He considered the plaintiff did not require surgery.
97In September 2016, the plaintiff was referred by Dr Steele to Mr Raleigh, orthopaedic surgeon, who specialised in shoulder surgery.[40]
[40]This report was tendered by the defendant
98The plaintiff presented with bilateral stiff shoulders. He told Mr Raleigh of a work injury when he fell on his left shoulder, but Mr Raleigh could not really get an exact impression of what had happened, or the relation between this and his current predicament. Either way, the plaintiff was complaining of three years of pain and stiffness in both shoulders quite symmetrically.
99The plaintiff’s shoulders were pretty much symmetrically unhappy, and he got pain and stiffness. That had not really changed in three years, which Mr Raleigh noted to be a bit unusual.
100On examination, Mr Raleigh could not really make an assessment of the plaintiff’s shoulders, given the amount of stiffness.
101Mr Raleigh noted the plaintiff presented with an ultrasound which showed a bit of bursitis in both shoulders but, clinically, there was not really a bursitis, given the amount of stiffness. He could imagine that it was arthritis, or frozen, but, given it was three years, it was unlikely to be just a capsulitis, despite the plaintiff being diabetic.
102Mr Raleigh noted the plaintiff had an x-ray that was three years old which showed some early arthritic change, but it was very mild. For the purposes of diagnosis, he thought it was worth getting bilateral MRI shoulder scans, just to work out what was going on.
103Having seen these investigations, Mr Raleigh, again, saw the plaintiff in late September 2016.
104In Mr Raleigh’s view, the right shoulder investigation showed no evidence of frozen shoulder and there was very mild impingement and bursitis that was extremely mild and, probably, what would be expected in the plaintiff’s age group.
105In relation to the left shoulder, there was a little bit of bursitis and impingement and very minor capsular thickening showing a very minor capsulitis.
106Resistance on examination, Mr Raleigh thought, may be a pain mechanism, or may be another reason.
107Mr Raleigh explained to the plaintiff he could not find any significant pathology in his shoulder[41] and his most likely next step was to go back to his physiotherapist, who he had not seen since 2013. Certainly surgery would not be an option.
[41]Seems to be the right shoulder
Investigations
108Dr Steele arranged an x-ray of the thoracic spine in March 2011. It was reported there was a mild scoliosis convex towards the right side. No compression fractures were seen. There was some endplate change and anterior osteophytic lipping in the mid and lower thoracic spine. The disc spaces were preserved.
109Dr Steele organised an ultrasound of the plaintiff’s left shoulder on 7 April 2011. It was reported there was bursal fluid and no evidence of a rotator cuff tear.
110There was an ultrasound of the right shoulder on 5 March 2012, following which it was reported there was extensive calcific tendinopathy of the supraspinatus.
111There was a further right shoulder ultrasound in July 2012.
112It was noted findings were limited by a restricted range of movement. However, there was evidence of extensive calcification within the supraspinatus tendon consistent with calcific tendinosis. There was an associated large effusion within the subdeltoid bursa. A biceps sheath effusion was also seen. The remaining rotator cuff tendons appeared grossly intact.
113The plaintiff underwent an x-ray of his right shoulder on 2 March 2013. Calcification was seen adjacent to the humeral head, consistent with calcific tendinopathy. The glenohumeral joint had a normal appearance and the clavicle and AC joint appeared intact.
114Mr Raleigh organised an MRI scan of the plaintiff’s left shoulder in September 2016.
115It was reported there was subacromial impingement and bursitis, tendinosis of the intra articular biceps and suspected adhesive capsulitis.
116An MRI scan of the right shoulder of the same date was reported to show no evidence of adhesive capsulitis. There was suspicion of calcific tendinosis at the insertion of the infraspinatus. Subacromial impingement and bursitis. Query: Biceps tenosynovitis.
Medico-legal examiners
117Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in February 2012, March 2015 and, most recently, in October last year.
118On the first occasion, the history was that on the said date, the plaintiff slipped and fell on his left side. He had pain in his left upper arm and left shoulder. He also experienced pain in his neck and right shoulder.
119On that examination, the plaintiff complained of pain in his shoulders bilaterally, but more prominent in the right. He also had pain in the middle of his shoulder blades.
120Mr Kossmann thought the plaintiff had suffered soft tissue injuries to his neck and both shoulders. He noted, “astonishingly”, the plaintiff’s shoulder condition on the right was worse, with more pain and movement restrictions compared to the left.
121Mr Kossmann then thought the plaintiff had made a relatively good recovery from his left shoulder injury. However, it was not clear what caused the pain and significant movement restriction on the right and Mr Kossmann suggested further investigations of the right shoulder.
122At that stage, Mr Kossmann thought the plaintiff had no capacity to perform pre‑injury employment, in particular, heavy physical work. He may not be able to lift items weighing more than 5 kilograms with either of his upper extremities, and had a work capacity, as long as he was not forced to use his upper extremities.
123The plaintiff’s complaints of the level and site of his pain were similar on re‑examination in March 2013.
124Mr Kossmann noted that since the last examination, the plaintiff had had further investigations of the right shoulder, and he was diagnosed with a calcified supraspinatus tendon.
125Mr Kossmann thought the plaintiff would suffer from pain and restricted movement in the right shoulder, most likely for the rest of his life, and would need further treatment in the form of medication, physiotherapy and hydrotherapy.
126Again, Mr Kossmann diagnosed soft tissue injuries to both shoulders and the cervical spine. He noted it was not quite clear how extensive the injury to the right shoulder was and he suggested further diagnostic investigation, in particular, an ultrasound to determine if the plaintiff had suffered any rotator cuff pathology.
127On examination in March 2015, the plaintiff complained about ongoing pain in both shoulders. His complaints about the site and nature of his pain were identical to those on earlier examination.
128On that examination, there was decreasing mobility of both shoulder joints and Mr Kossmann thought the plaintiff’s prognosis was poor. There was also an apparent increase in his level of pain. He thought the plaintiff would require further conservative treatment.
129Mr Kossmann diagnosed calcific tendinopathy in the supraspinatus tendon in the right shoulder joint, with pain and movement restrictions, and pain and movement restrictions of the left shoulder joint.
130Mr Kossmann then thought the plaintiff may benefit from a further steroid injection in both shoulder joints, as well as the right AC joint, where he also suffered pain. He would then require intensive physiotherapy. Mr Kossmann thought the plaintiff’s prognosis was poor.
131On final examination in October 2016, the plaintiff complained of identical pain in nature and location to previous examinations.
132Mr Kossmann noted the plaintiff’s left shoulder movements had deteriorated significantly since he was seen in March 2013, and his right shoulder movements had also decreased.[42]
[42]Mr Kossmann seems to have forgotten his 2015 examination
133Mr Kossmann again diagnosed pain and movement restrictions in the right shoulder joint on the basis of calcific tendinopathy in the supraspinatus tendon and subacromial bursitis with impingement. He also diagnosed pain and movement restrictions of the left shoulder joint on the basis of adhesive capsulitis, subacromial impingement and bursitis and tendinosis of the intra articular biceps tendon.
134Mr Kossmann thought the prognosis regarding the bilateral shoulder condition was poor, with the plaintiff continuing to suffer from pain and restricted movement. He would require further conservative treatment and may benefit from hydrodilatation on both sides. He thought the plaintiff may become a candidate for an arthroscopy of both shoulder joints to try to improve his mobility. He considered the plaintiff was at risk of developing osteoarthritic changes in both shoulder joints, with the worst case scenario being surgery.
135Mr Kossmann noted the plaintiff was restricted in relation to social, domestic and recreational activities, not doing any gardening, previously enjoying walking, and having had to give up cycling.
Claim documentation
136 The plaintiff submitted a Claim for Compensation on 6 April 2011. Therein, he described his injury as muscular strain, affecting his left shoulder and back. He noted he slipped on a wet, soapy floor, cleaning inside the culture tank. He had lost his balance and landed on his left side/shoulder.
The Defendant’s medico-legal examiners
137Dr Phillip Mutton, occupational physician, examined the plaintiff in relation to his statutory benefits entitlements on 19 July 2011.
138The plaintiff told Dr Mutton that while cleaning the tank, he was squatting, went to stand up and lost his balance. His right leg slipped on the slippery floor and he fell down to the left side, striking the mid left upper arm and shoulder. The injury was to the left shoulder/ upper back.
139The plaintiff then said his condition was quite intermittent, with his main area of concern the upper thoracic spine, just below the lower neck. He had good function in the left shoulder but there was pain and discomfort, with movement in the right. Dr Mutton noted the right shoulder was not impacted at the time of the fall.
140On examination, left shoulder function was very well maintained, with no loss of range of movement. However, on the right, there was a global loss of range of movement due to discomfort in the upper back/ neck.
141On the basis of the history, and accepting that the plaintiff suffered a fall, Dr Mutton thought it may well be he suffered a soft tissue injury to the upper back and left shoulder region.
142Dr Mutton thought the plaintiff’s current presentation was difficult to relate to any significant injury sustained in the incident. From a physical examination viewpoint, the major feature was, in fact, the loss of function in the right, which appeared to be due to a general stiffness and tightness due to pain and discomfort in the upper back. The left upper arm, which was the site of the impact, on a smooth surface, in fact, displayed no significant loss or abnormality.
143Dr Mutton considered ongoing pain and discomfort in the upper back/ lower neck was difficult to relate to the incident, but it had to be accepted that prior, therefore, the plaintiff had no symptoms.
144Dr Mutton thought physiotherapy three times a week was inappropriate, and would be more appropriate weekly.
145Dr Mutton considered the plaintiff suffered a soft tissue injury to the upper back and lower neck. He did not have an ongoing injury in relation to the left shoulder, which may have been subject to a soft tissue injury, from which he had recovered. He had some general stiffness in the right shoulder, which Dr Mutton did not relate to employment.
146Dr Mutton then thought the plaintiff could return to pre-injury duties, with the exception of tank cleaning.
147Dr Mutton noted the plaintiff still complained of some mild symptoms, although they were quite intermittent. At times, he could be quite pain free, and at times his symptoms would return. That would, perhaps, suggest the symptom complex was more to do with the underlying pre-existing thoracic spondylosis rather than any incident injury.
148Mr Kendall Francis, senior consultant surgeon, examined the plaintiff in June 2012.
149The plaintiff told him he was washing a vat on a sloping floor to drain the fluid away, when he slipped and fell on his left side. By far, his right shoulder was the symptomatic one and, virtually, his left shoulder was asymptomatic. He demonstrated this with full elevation and waving his left upper limb quite freely.
150Examination of the left shoulder was virtually normal. There was no wasting of the deltoidal bicep and no tenderness in the shoulder region, and there was an almost full pain free range of movement.
151In relation to the right shoulder, there was no obvious wasting of the deltoid or biceps and power in elevation, in the way of abduction, was almost equal to the left but the plaintiff developed pain on attempting to sustain a semi elevated shoulder.
152Right shoulder movement was substantially impaired and the plaintiff developed a spasm and an appearance of locking of the shoulder with pain developing posteriorly. Mr Francis thought there was no doubt the right shoulder was by far the more significantly impaired compared to the left, which had substantially recovered to what he would consider almost normal.
153Mr Francis noted the ultrasound of the right shoulder showed extensive calcification of the supraspinatus tendon, but with no evidence of impingement or bursal fluid or, seemingly, any rotator cuff tear of any tendon, but simply the extensive calcification of the supraspinatus tendon.
154Mr Francis noted, although the reference to him did not include an assessment for the plaintiff’s right shoulder, that was currently the plaintiff’s major problem.
155Mr Francis thought the prognosis in relation to the neck and shoulder was that the injuries had resolved and required no treatment. However, the right shoulder impacted on both occupational and daily living activity owing to the semi frozen shoulder due to the underlying rotator cuff calcification.
156Mr Francis’s overall impression was that the current findings were not consistent with the incident. They related far more to the fall on the left side and various examinations and investigations at that stage related to the left shoulder and upper thoracic spinal region, which now showed no abnormalities.
157Mr Francis thought the right shoulder was a separate entity and had only recently become more dominant in the plaintiff’s clinical presentation, plus the underlying calcification demonstrated in x-ray and ultrasound three months ago, at a stage a year down the track since the incident. Although contributing considerable impairment, this right shoulder syndrome, Mr Francis considered a later event unrelated to the incident and one that should respond to appropriate management.
158The plaintiff was first examined by Mr Ian Jones, orthopaedic surgeon, on 28 June 2012.
159The plaintiff told him that he slipped on the slippery surface of a steel tank falling sideways on his left shoulder. The plaintiff noted pain on the outer aspect of his left upper arm, slightly below his shoulder joint and, additionally, he described some pain, which he indicated at approximately the midpoint of his thoracic spine.
160On examination, the plaintiff reported his major complaint of pain was over the back of his right shoulder blade and adjacent to the mid portion of the thoracic spine. He found movement of his right shoulder and, particularly his shoulder blade, painful.
161In the spine, itself, the plaintiff reported some pain in the mid thoracic region and stated his left shoulder pain, indicating his left upper arm, had resolved.
162Examination of the left shoulder revealed a slight restriction of abduction and flexion. On the right, however, there was a moderately severe restriction of movement.
163Mr Jones noted, more recently, the plaintiff appeared to have developed some pain, more in the region of his right shoulder blade, and had investigations in relation thereto.
164On the left side, the plaintiff had some symptoms and signs of mild rotator cuff tendinitis, taking the form of a slight restriction of left shoulder flexion and abduction.
165On the right, the plaintiff had radiographic evidence and clinical evidence of calcific tendinitis affecting, particularly, the supraspinatus tendon. This was manifesting as some shoulder stiffness, but neither shoulder was particularly tender, clinically, in the subacromial region. In the thoracic spine, the plaintiff suffered from multilevel, longstanding thoracic spondylosis.
166Mr Jones thought the condition suffered by the plaintiff to his left shoulder could reflect a previous soft tissue injury. The plaintiff continued to have some slight restriction of left shoulder movement, in spite of an apparently normal ultrasound.
167On the right side, the plaintiff had evidence of chronic calcific tendinitis, which Mr Jones thought was totally unrelated to the incident. He noted the fall reported had the capacity to aggravate, what he believed, had been some pre-existing thoracic spondylosis. Mr Jones thought any aggravation of the degenerative changes would have resolved.
168Mr Jones then thought the plaintiff had a restricted capacity to work based on his restricted right shoulder movement and, to a lesser extent, the stiffness and pain in the thoracic spine.
169Mr Jones thought the minor residual symptoms in the left shoulder may reflect chronic soft tissue strain, which had the capacity to be aggravated by return to heavy and overhead use of the left arm and shoulder.
170Although the plaintiff had a moderate degree of stiffness in the right shoulder joint, Mr Jones thought the region was not particularly painful and, given the nature of the Chronic Calcific Tendinitis, he would not suggest any specific treatment.
171On re-examination in April 2013, the plaintiff reported ongoing problems, particularly in the right shoulder, since last seen. In the left, symptoms were of some minor discomfort at the back of the shoulder blade in a similar, but less severe, distribution than on the right.
172The plaintiff told Mr Jones that, in July 2012, he attended his general practitioner with a severe exacerbation of right shoulder pain of a spontaneous nature.
173On examination, generally the left shoulder was described as being okay. The plaintiff reported restrictions of right shoulder movement, particularly in abduction and flexion, which caused pain to the back of the scapula.
174Mr Jones concluded the plaintiff exhibited a minor restriction of left shoulder movement, but had no localised pain or tenderness in the shoulder itself consistent with a left subacromial bursitis. The condition affecting the right shoulder was consistent with a ligamentous strain and, in the thoracic spine, the plaintiff had evidence of longstanding thoracic spondylosis.
175Mr Jones noted the plaintiff continued to demonstrate a minor restriction of left shoulder movement consequent to the incident. He did not believe the complaints affecting the plaintiff’s right shoulder, or the moderately severe restrictions of movement suffered by him, related to work.
176Mr Jones did not think the plaintiff was capable of his pre injury employment due, principally, to his right shoulder stiffness and pain. He was capable of suitable employment of a clerical nature. Reaching, using his dominant hand, would be moderately restricted and the plaintiff had no capacity to use the right arm at or above shoulder height. Reaching, and heavy pulling or pushing using the left arm, had a capacity to exacerbate the residual effects of the left shoulder injury.
177There was a further review on 2 December 2015, when the plaintiff reported problems with his shoulders were virtually the same.
178The plaintiff described symptoms in both shoulders equally in the form of pain and restriction of movement. The shoulder was indicated to involve the muscles at the back of the cervical spine and particularly those in the left and right shoulder girdles.
179There was no wasting when the shoulders were examined. The range of movement in both shoulders was symmetrical.
180Mr Jones thought the plaintiff had evidence in the left shoulder of subacromial bursitis in the form of a moderate restriction of movement. In the right, soft tissue x-rays had disclosed calcinosis affecting the supraspinatus tendon, without any evidence of rotator cuff tendon tear. He considered the diagnosis on the right was consistent with calcific tendinitis and, on the left, a rotator cuff bursitis.
181Noting his earlier views on causation, Mr Jones thought it of interest that the plaintiff’s main complaint was that the pain relates now both to muscles in the neck and both shoulder girdles, suggesting some developing pathology in the cervical spine. He could not detect any functional symptoms or signs in the plaintiff’s presentation.
182In a supplementary report of February 2016, Mr Jones noted the plaintiff said he was able to manage most day to day activities within the limits of his shoulders. He described pain and restriction of movement in the right shoulder, especially when lifting. He had been unable to ride a bike due to his right shoulder symptoms, and he had been unable to perform any gardening, or to assist with domestic activities, including vacuuming.
183There was a further review on 17 October 2016, when the plaintiff reported ongoing symptoms, including both shoulders.
184There was stiffness in the left shoulder and complaints were proportional to the demands the plaintiff made of it. There were identical symptoms on the right.
185The pain in the plaintiff’s shoulders was indicated to extend across the girdles into the region of the left and right shoulder joints themselves.
186Mr Jones stated the plaintiff gave up riding a bike prior to his shoulder injury.[43]
[43]The plaintiff denied giving this history
187On examination, there was no wasting of the shoulders. There was diffuse tenderness in the soft tissues of both shoulder girdles and there was no evidence of any subacromial tenderness on either side. The plaintiff demonstrated a symmetrical range of motion in both shoulders.
188Mr Jones noted the recent right shoulder MRI scan suggested calcific tendinosis of the infraspinatus tendon. On the left, there were changes suspected of being evidence of adhesive capsulitis. Otherwise, the investigation showed degenerative changes of the soft tissues in association with some mild subacromial bursitis. There was no reference to any tears involving the rotator cuff tendons in either shoulder joint.
189Mr Jones believed the main cause of both shoulder symptoms to be degenerative in aetiology. It was possible the injury suffered to the left shoulder had been an extremely minor contributing factor to that condition, which had continued. He did not believe the right shoulder condition in any way related to the incident.
190Mr Jones thought there did not appear to be any particular functional symptoms or signs in the plaintiff’s presentation.
191In a further supplementary report, Mr Jones noted diabetes as a predisposing factor to the development of frozen shoulder. The more common conditions of rotator cuff degeneration and tendon tears are more common in patients over forty, often with a family history, suggesting a genetic component, and possibly aggravated by high demand use of the affected joint.
192Mr Jones believed it more likely than not the left shoulder pathology related to the incident as well as there being a contribution from the degenerative process.
193In spite of Mr Raleigh’s contention that the plaintiff may have a better range of shoulder movement than clinical examination suggested, Mr Jones believed the plaintiff did demonstrate some significant pathology in both shoulders, both on soft tissue investigation, but the degree to which this was impacting on his range of movement was difficult to assess.
Overview
194 There is no dispute the plaintiff injured his left shoulder in the incident. His claim for weekly payments and impairment benefits in relation thereto was accepted.
195 It appears from a consideration of all the evidence, as the plaintiff is right hand dominant, that the consequences of his right shoulder impairment are more significant than those relating to the left, although the plaintiff’s evidence in this regard is sometimes unclear. However, the defendant has consistently maintained any problems with the plaintiff’s right shoulder are not related to the incident and liability in relation thereto has been denied.
196 In those circumstances, I propose to first consider whether the incident is a cause of the plaintiff’s present right shoulder condition. This is “essentially a factual enquiry the question being one of degree, requiring evaluation.”[44]
[44]St Mary’s School v Askwith [2011] VSCA 90
197 Counsel for the plaintiff submitted that the only explanation for the right shoulder injury could be the fall in the incident.[45]
[45]T40
198 It was submitted the causal link was established by Mr Gross and his initial examination findings of restricted right shoulder movement. Dr Steele also shared this view. Further, the plaintiff did not return to work after the incident and he had not done anything to further hurt his right shoulder. [46]
[46]T45
199 However, I do not accept that plaintiff has discharged the onus in this regard and I am not satisfied the incident was a cause of the plaintiff’s right shoulder condition.
200 Whilst the plaintiff now maintains his right shoulder was injured in the incident, he made no mention of any such injury nor had any right shoulder complaints when he saw Dr Steele on a number of occasions in the weeks after the incident. Similarly, the Claim Form completed by him on 6 April 2011 mentioned an injury to the left shoulder/back only.
201 The first mention of a right shoulder problem was when the plaintiff had problems moving that shoulder on examination with Mr Gross on 2 May 2011. However, there does not appear to have been a complaint of pain or any mention by the plaintiff of it having occurred in the incident on that examination.
202 Whilst it was submitted by counsel for the plaintiff that Mr Gross accepted the plaintiffs right shoulder problem related to the incident, his view in this regard was somewhat qualified commenting that this injury may not have occurred in the incident as the plaintiff did not feel any pain at the time, although it seemed unlikely he would not have noticed such an extreme loss of movement.
203 Mr Gross explained however this injury, the lesser of the plaintiff’s injuries, may have been overshadowed by an adrenaline rush at that time.
204 Whilst Dr Steele appears to have accepted Mr Gross’ view as to the involvement of the right shoulder in the incident, he did not provide any explanation as to how any right shoulder problem could be related to the incident and has simply accepted this was the case.
205 Although Mr Kossmann thought the plaintiff injured his right shoulder in the incident, he was given the wrong history for the plaintiff of pain in the right shoulder and neck at the time of the incident.[47]
[47]T50. Counsel for the plaintiff submitted this history was in fact correct.
206 Further, despite that history, whilst he thought there was a soft tissue injury to the neck and both shoulders, Mr Kossmann commented, “astonishingly, his shoulder condition on the right is worse, with more pain and movement restrictions compared to the left”.
207 Having noted that the plaintiff had made a relatively good recovery from the left shoulder injury, Mr Kossmann thought it was not quite clear what caused the pain and the significant movement restriction of the right shoulder. Thus, even with that wrong history, he had difficulty seeing why there was a problem with the right shoulder and simply accepted that it was related to the incident.[48]
[48]T36
208 The initial treating orthopedic surgeon Mr Solaiman did not comment in relation to causation having been given a history of a very sore right shoulder immediately post incident.
209 Recent treater Mr Raleigh did not discuss causation in relation to the right shoulder condition in his report of September 2016, commenting that he did not really get an exact impression of what happened.
210 Further, there are then a number of doctors who do not consider the plaintiff’s right shoulder complaints were incident related.
211 Mr Francis, who carried out an AMA assessment of neck and left shoulder, noted that early certificates and medical reports referred to the left shoulder only and noted that the right is not related to the claim.
212 It is not clear from Dr Mutton’s report on what basis he stated the right shoulder “was not impacted at the time of the fall” but that comment appears in a paragraph detailing the plaintiff’s complaints. In any event, in Dr Mutton’s view any right shoulder problem is not related to the incident.
213 Finally, Mr Jones does not believe the right shoulder injury bears any relation to the incident.[49]
[49]T35
Seriousness
214 If it was accepted the incident was cause of the plaintiff’s current right shoulder problems, he must then establish the consequences thereof meet the test of “very considerable”.
215 Counsel for the defendant conceded the plaintiff obviously has some pain, but as he is able to work, engage in family life, shopping and do some gardening, it was submitted any consequences of his shoulder injury were not very considerable.[50] Further, in assessing the seriousness of the consequences, one must consider not only what the plaintiff has lost, but also what he has retained.[51]
[50]T41
[51]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
216 It was also submitted there has been no delineation of the consequences of the right and left shoulder impairments and, even if combined, the consequences thereof were not “serious”.[52]
[52]T39
217 Counsel submitted the plaintiff’s level and consistency of pain had been present for some years with no resolution. Further, it was submitted that there was no requirement to disentangle the consequences of the left shoulder injury from the right because it could be established the accepted left shoulder condition alone was serious.[53]
[53]T50
Credit
218 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[54]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[54](2010) 31 VR 1 at paragraph [12]
219 Counsel for the plaintiff submitted that the plaintiff did his best and it was not put to him that he was exaggerating. He should be accepted as a reliable witness and the Court be satisfied the right shoulder is causally related to the incident and the left, on its own, is productive of serious injury consequences.[55]
[55]T51
220 It was submitted that the plaintiff was a refreshingly candid witness who was prepared to agree to various matters noted in medical reports and clinical notes where he had no specific recollection thereof.[56]
[56]T48
221 As I indicated to the parties, I do not have any real concern about the plaintiff’s credibility, with the main issues being causation of the right shoulder injury and seriousness of the consequences of any impairment to the shoulders.[57]
[57]T40
Pain
In Haden Engineering Pty Ltd v McKinnon,[58] Maxwell P said that the evidentiary basis of the pain assessment will ordinarily comprise the following:
[58](Supra) at paragraphs [8] – [12]
“(a) what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiffs pain; and
(d)what the objective evidence shows about the disabling effect of the pain.”
222 In his most recent affidavit and also his viva voce evidence, the plaintiff described his left shoulder as being his main problem, it having remained a constant discomfort since the incident.
223 However, in the early years after the incident, the plaintiff reported to his treaters and medico legal examiners that his left shoulder had improved considerably and his main problem was his right shoulder. Examination findings during that time are to a similar effect.
224 In July 2011, Dr Mutton thought there was no ongoing injury to the left shoulder which may have been subject to a soft tissue injury which had recovered. Further, there was general stiffness of the right shoulder.
225 In June 2012, Mr Francis considered there was virtually full recovery in the left and extensive calcific tendinopathy of the supraspinatus/rotator cuff in the right. As of September 2012, Dr Steele noted the right shoulder was the main problem to recovery.
226 Treating orthopaedic surgeon, Mr Soliman, in mid 2013, did not comment on the plaintiff’s left shoulder in his report, noting signs and symptoms consistent with right frozen shoulder were the plaintiff’s main complaint, concluding the plaintiff was going through the final stage of his frozen shoulder.
227 In 2016, the plaintiff’s treating orthopaedic surgeon, Mr Raleigh, could not find any significant pathology[59] and simply suggested more physiotherapy treatment. Having seen the recent MRI scans of the shoulders, he thought there was no evidence of frozen shoulder and very mild impingement and extremely mild bursitis which he would expect to see in the plaintiff’s age group. There was no diagnosis of adhesive capsulitis.[60]
[59]T39
[60]T38
228 Counsel for the plaintiff agreed that Mr Raleigh’s view was not particularly helpful, but submitted Mr Jones “actually brought it home” for the plaintiff, particularly in his most recent report. Mr Jones found a mild degree of frozen left shoulder related to the incident and noted significant pathology in both shoulders on soft tissue investigation.[61]
[61]T45
229 However, Mr Jones thought the main cause of the plaintiff’s shoulder problem was degeneration with an extremely minor contribution to the left by the incident. He also noted that the degree the shoulder pathology was impacting on the plaintiff’s range of movement was difficult to assess.
230 Mr Kossmann is alone in his view as to the presence of more significant shoulder pathology describing the calcific tendinopathy supraspinatus tendon and subacromial bursitis with impingement in the left and adhesive capsulitis, subacromial impingement and bursitis and tendinosis of the infra-articular biceps tendon in the right. However, these findings were not borne out by the treating surgeon.[62]
[62]T37
231 In his October 2016 report, Dr Steele did not really comment on the nature of the plaintiff’s current condition nor did he have Mr Raleigh’s recent report.
232 On the basis of this medical evidence, it is difficult to explain the plaintiff’s current evidence that his left shoulder condition is worsening and his left is now much worse than the right. This situation is certainly not in line with Mr Raleigh’s 2016 examination.[63]
[63]T39
Treatment
233 The plaintiff’s shoulder treatment has been conservative, with no suggestion of the need for surgery on either shoulder. The most invasive procedure has been shoulder injections carried out in April 2016 with little benefit.[64]
[64]T49
234 The plaintiff underwent physiotherapy, which was not of great assistance, until funding was ceased last year. He does exercises at home.
235 The plaintiff requires a relatively small amount of over-the-counter painkilling medication – Panadol and Nurofen – preferring not to take more because it is contraindicated to his hypertension medication to some degree.
Work
236 Having been made redundant in April 2011, the plaintiff resumed full-time work with another employer, Florida Cheese, in August 2013 with whom he continues to work as a quality assurance manager.
237 Counsel for the plaintiff submitted however the plaintiff has continued to work in pain and was therefore somewhat of a stoic.[65]
[65]T48
238 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (No 2),[66] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[66](Supra) at paragraph [4]
239 I accept that plaintiff is a motivated, hardworking man. His present job is a responsible one and is essentially not hands-on, checking the quality of cheese and how the factory is running. [67]
[67]T29
240 Whilst the plaintiff continues to experience shoulder pain at work, his work duties are “largely manageable”, working 10 hours overtime in addition to his 40 hours per week. He drives 60 kilometers to and from work daily.
241 The plaintiff has not required time off work due to his shoulder condition and no specific restrictions have been placed on his duties by his medical practitioner.
242 Dr Steele considered the plaintiff was able to perform full-time employment in his current role but his incapacity for various duties continued – jobs involving repetitive movement of the arms and shoulders and climbing or heavy lifting.
243 Mr Kossmann shared this view and thought the plaintiff had the capacity for employment in administration or as a supervisor.
Activities
244 Often in his affidavits, the plaintiff deposed that his “injuries” affected various aspects his life, not specifying which activities were affected by his right or his left shoulder in particular.
245 It was submitted as a result of his injuries, the plaintiff has lost his ability to cycle. Whilst a significant hobby pre injury, in my view, the loss of that activity is not a serious consequence in itself or combined with any of his other restrictions or problems.[68]
[68]T40
246 The plaintiff is still able to do some gardening. He helps around the home and is able to assist with the shopping although he has to be careful when doing these activities. He can drive although with pain. He can undertake personal hygiene tasks but has some difficulty washing himself.[69]
[69]T50
247 The plaintiff has difficulty sleeping due to shoulder pain but has not taken any medication in this regard.
Conclusion
248 In considering the totality of the evidence, I am not satisfied the impairment consequences of the plaintiff’s right or left shoulder are “serious”. It is difficult to reconcile his current complaints of pain and the site thereof with the medical evidence and also his earlier more dominant right shoulder complaints.
249 The plaintiff has the burden of proving, on the balance of probabilities, that he has suffered impairment of his right or left shoulder as a result of the incident, and that the impairment is both serious and permanent.
250 For the reasons detailed above, I am not satisfied, when judged by comparison with other cases in the range of possible impairments or losses, that the consequences for the plaintiff of either shoulder injury when viewed separately[70] can be fairly described as “more than significant or marked”, and “at least very considerable”.
[70]Peak Engineering & Anor v McKenzie [2014] VSCA 67
251Accordingly, the plaintiff’s application for leave to commence a claim for common law damages for pain and suffering is dismissed.
- - -
0
6
0