Duncan v Victorian WorkCover Authority
[2020] VCC 697
•28 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04767
| STEVEN DUNCAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2020 | |
DATE OF JUDGMENT: | 28 May 2020 | |
CASE MAY BE CITED AS: | Duncan v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 697 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: De Bono v VWA [2019] VSCA 85; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649;
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr C O’Sullivan | Maurice Blackburn Lawyers |
| For the Defendant | Mr D McWilliams | IDP Lawyers |
HIS HONOUR:
Introduction
1 Steven Duncan applies under s 335(2)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 for leave to issue a proceeding for the recovery of damages for pain and suffering and pecuniary loss in respect of injuries suffered arising out of or in the course of his employment with Complete Pod Solutions. Mr Duncan alleges he suffered injury on 25 February 2015 when he fell while unloading a truck. He claims his injuries satisfy paragraphs (a) and (c) of the definition of “serious injury” in s 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013. Paragraph (a) requires permanent serious impairment or loss of a body function while paragraph (c) requires permanent severe mental or permanent severe behavioural disturbance or disorder. For paragraph (a), he relies on the impairment of the function of his right shoulder and spine.
Circumstances
2 Mr Duncan is now sixty.[1] He is single, living in a caravan at a property shared with his brother and sister. It is their parents’ property and they are co-owners. In this day and age, his formal education was very limited, undertaking Year 10 at the Broadmeadows Technical School but passing only woodwork. Between 1976 and 1981, he worked for the Ford Motor Company as an assembly worker and forklift driver. Then, between 1981 and 1984, he was employed by Gyprock Plaster Board as a storeman and forklift driver. In 1985, he worked at a hotel as a barman and “all-rounder”. Thereafter, he worked as a truck driver and storeman for three different employers until taking a voluntary redundancy. After a year off work, he starting with Complete Pod Solutions in June 2011 as a truck driver. Until the accident, he had a long and consistent work history and from 1986 devoted mainly to truck driving. Over time, he obtained licences to drive various motor vehicles and completed courses in occupational health and safety and load restraining. His literacy skills are weak. Although he can read newspapers he needs help reading his lawyers’ correspondence.
[1]Born on 21 April 1960.
3 Complete Pod Solutions manufactures “waffle pods”. These were not described in the oral evidence. Perhaps, the best description of them and their use appears in the report of Dr Horsley.[2] Mr Duncan delivered them to building sites, within Victoria and New South Wales, where he would unload them from his truck.
[2]Report dated 14 August 2019 at p 4.
Accident
4 Leading up to the accident, Mr Duncan had not experienced lower back or right shoulder pain.
5 Mr Duncan describes the accident:[3]
“On 25 February 2015 I drove a truck loaded with pods to a building site. I had to remove a side gate on my truck to access the pods. The gate was jammed and difficult to move and I had to apply a lot of force to move it. When the gate finally freed I lost my balance and fell backwards. As I was falling I threw the gate away from me so that it would not land on top of me. I landed on the ground. I felt pain in my low back and also my right shoulder. I reported what had happened to my employer. Another worker was sent to the site to unload my truck. I went to see my GP that day.”
[3]Affidavit sworn 4 June 2018 at [5].
6 Elsewhere he added the conditions were wet and he twisted his body in order to throw the gate to his right.[4]
[4]Report of Dr Wilkins dated 17 March 2017 at p 2.
After the accident
7 His general practitioner is Deviprasad Dayasagar. At their first meeting, Mr Duncan complained of back pain but did not mention his right shoulder. That came two days later. On the first occasion, the lower back pain radiated into his left calf and hamstrings. Coupled with bladder incontinence, MRI scans were thought necessary and were arranged. On 2 March, they were taken, revealing to a radiologist, mild to moderate bilateral L4-5 and L5-S1 facet joint arthropathy with very minimal diffuse annular disc bulges at L4-5 and L5-S1 without any compressive effects on the nerves. There was no evidence of spinal canal or foraminal stenosis.[5]
[5]Plaintiff’s court book at p 101.
8 On 27 February, Mr Duncan lodged a claim for compensation, which was accepted and payments made. In April 2017, he made a further claim for impairment benefits. That claim was also accepted.
9 On 11 March, Dr Dayasagar prescribed Targin for his back pain. This medicine made him very drowsy. It was changed to other medicines, including Lyrica and Panadol Osteo. During this period, he was treated by a physiotherapist and underwent hydrotherapy.
10 On 8 April, he returned to work on light duties, as he put it, “some gluing work [polystyrene] and mailing out pamphlets”.[6] This work ceased on 12 May when he was told it was no longer available. In June, Dr Yong, an occupational physician, visited the work place with Mr Duncan. Apparently, the employer suggested the job of “check loader”, which Dr Yong described:[7]
“The check loader is required to check that the trucks have been packed with the appropriate number and sizes of packs. The check loader walks around the trailer and the truck. They have an order sheet. They mark off the load to the order sheet. This task is performed from 11.00 hours when the first truck is loaded. There are approximately 8-10 trucks loaded per shift which finishes at 15.00 hours. This is generally a task which can be self-paced. This is due to the loads being delivered the following day, there is no rush for the trucks to leave the site that day.”
[6]Affidavit at [10].
[7]Report dated 15 June 2015 at pp 18-19.
11 Dr Yong considered this role suitable and recommended a graduated return to work: starting three hours a day, three days a week and rising to five days a week, four hours a day in the seventh week. In his first affidavit, Mr Duncan said he struggled with this work and was moving slowing because of his pain and stopped work in August 2015. To the vocational assessor, Katrine Green, he elaborated:[8]
‘Mr Duncan said this return to work did not last long, ‘employer did not want me there due to my slow movement and the presence of forklifts and trucks’ so this return to work was terminated by his pre-injury employer”.
[8]Report dated 30 September 2019 at p 3.
12 Meanwhile, Dr Dayasagar referred him to a pain specialist, Gavin Weekes. Their first meeting was on 28 July. The focus was on the lower back. However, Dr Weekes noted the co-morbidities of diabetes, hypertension and a frozen right shoulder. He gave a pain score of 6 out of 10. The level of the pain was sometimes increased by flexion and extension of the back and relieved by heat packs, sitting and walking. Dr Weekes arranged flexion-extension x-rays and CT/SPECT scans of his lumbar spine. The former showed no significant instability, the latter showed some degenerative changes in the hips and sacroiliac joints. On 17 November, Dr Weekes administered bilateral CT-guided sacroiliac joints injections. Two weeks later, they had achieved 10 to 20% improvement in his pain. To Dr Weekes, “I considered these procedures to be very negative”.
13 The earlier focus was on Mr Duncan’s lower back, however, as time went on, the right shoulder assumed importance. There was an ultrasound and x-ray in August and MRI scans in December. The later showed adhesive capsulitis and a partial tear of the supraspinatus. He was referred to an orthopaedic surgeon, Duy Thai, who diagnosed adhesive capsulitis. He performed an arthroscopy on 5 May 2016. He found the tear but did not repair it. He found thickening of the middle glenohumeral ligament, which he resected. Six weeks after the operation, the range of shoulder movement had markedly improved.
14 At Dr Weekes’ suggestion, between 26 July and 1 September 2016, Mr Duncan attended a multidisciplinary pain management programme. Apparently, it was unsuccessful. Apart from mentioning the fact of his attendance in his first affidavit, Mr Duncan says no more. Writing in January 2017, Dr Weekes made the cryptic comment: “My prognosis at this stage is somewhat guarded as he has just completed a multidisciplinary cognitive-based program”.[9] It gained a passing mention in cross-examination.[10]
[9]Report dated 12 January 2017.
[10]Transcript at p 63.
15 On 31 December 2016, Mr Duncan fell over. The fall caused some increased right shoulder pain.
16 From March 2017, Mr Duncan has attended a psychologist, Lisa Palmisano. By the end of 2019, she had seen him 33 times and, during 2019, monthly.
17 On 31 May 2017, Mr Duncan’s left leg was operated on to remove an arterial blockage above the knee. A stent was inserted. Despite the surgery, he still experiences pain daily. He walks with a limp and uses a walking stick.
Current situation
Pain
18 He suffers from constant pain in his lower back, which makes sitting uncomfortable. He describes a grabbing sensation in his lower back. Sometimes, the pain travels into his legs, particularly the left. Often, he uses a walking stick when he leaves home for greater stability but that is more related to the vascular problem in his left leg. On average, he wakes three times a night due to back pain. He does not take sleeping tablets. It is difficult to bend or lift anything from a low height. He finds putting on and taking off his shoes and socks is a “long and difficult process”. Of the two sources of pain, back and right shoulder, the back is worse.
19 Most of the time, he experiences pain in his right shoulder. He finds very painful and difficult reaching upwards to shoulder height or behind his body. He does not sleep well, finding it very hard to be comfortable. His physiotherapist gave him exercises with an elastic band. These loosen his shoulder “a bit” but only temporarily.
20 Following Mr Thai’s arthroscopy, he has regained better movement of his shoulder and has remained roughly the same since.
Medicine
21 To relieve his pain, Mr Duncan now takes Lyrica twice daily and Panadol Osteo, usually four to six tablets daily. Lyrica is taken to relieve the pain in his back and shoulder. He stopped Targin because of its side effects, pain, nausea and drowsiness. He takes Duloxetine daily. This is an anti-depressant which, Mr Duncan believes has a pain relieving effect. As I said earlier, he suffers from diabetes for which his general practitioner reviews every few months. He is prescribed medicines. He has developed a lot of stiffness and difficulty moving his fingers, which he apparently attributes to his diabetes.
Treatment
22 Mr Duncan has had a series of general practitioners. Presently, he sees Dr Chahal who mostly treats him for his diabetes and sees him about twice a month. Although the focus is diabetes, Dr Chahal does inquire about his back and shoulder. He sees Ms Palmisano about every three weeks.
Sleep
23 His sleep is interrupted, waking three or four times a night due to pain. The inadequacy of his sleep sees him tired and taking naps every afternoon.
Sports and hobbies
24 Before the accident, Mr Duncan was a keen lawn bowler. He was a member of a club for years and was even its club champion. Both the back and shoulder pain prevent him bowling, especially the former. He misses bowling a lot. Admittedly, he left his bowling club over a dispute. Although he has tried aids or techniques to enable him to bowl with his injuries, he believes he could not do it physically. Again before the accident, he played darts at a local hotel on Wednesdays and sometimes, Fridays. His shoulder injury prevents dart playing: he is right-hand dominant. This is his belief. He has not tested the belief. The same problems preclude playing pool or billiards. He has stopped riding his motor bike for the strain placed on his lower back and right shoulder.
Social
25 Owing to his pain, he spends long periods at home. Occasionally, he goes to a hotel to meet some of his friends. He is bored, frustrated and socially isolated.
Domestic
26 He does little housework, relying on his sister to wash, cook and mow the lawns. He feels guilty relying on her.
Alcohol
27 To numb and distract him from his pain and boredom, he drinks between 10 and 15 cans of beer a day.
Work
28 He has not worked since August 2015. Although he would like to work “I cannot think of any jobs I could do as a result of my low back pain and my right shoulder pain”. He receives a NewStart allowance and hopes to obtain a disability pension. Apparently, his application was refused and he has appealed the decision.
Concentration and memory
29 At one stage, it was thought Mr Duncan suffered from dementia. Following CT scans of the brain,[11] this has been discounted by his present general practitioner, Gurpinder Chahal.[12] Dr Chahal says Mr Duncan’s depression can affect his concentration and memory. Mr Duncan says of his concentration and memory.[13]
“…have deteriorated over the last few years. I forget conversations I have had with my sister and I forget dates and times. This is not a constant problem, but is happening quite a lot and I have no way of predicting when my memory will fail me.”
[11]Report dated 17 December 2019.
[12]Report dated 2 December 2019
[13]Second affidavit at [14].
30 His lack of concentration leads to not absorbing what he sees on television.
Driving
31 He can still drive a car but only for short periods; driving longer increases his back pain which affects his concentration.
Hands and knees
32 He experiences significant problems with his hands. It restricts what he can do with his hands. For example, he cannot pick up a kettle using one hand, he needs two. He cannot make a fist. He takes a medicine, meloxicam, and uses cream to “loosen” his hands. I have already mentioned his left leg. Both conditions are causing him more trouble. It is unclear why this is so although Mr Duncan apparently blames less activity since he stopped working:[14]
“Yeah, with the hands and that and knees it’s only really since I’ve finished sort of working that these have really accelerated, they’ve come on because beforehand I was always working with my hands or climbing up and down the vehicles…”
[14]Transcript at p 23.
33 The state of his left leg restricts his walking. He can walk a certain distance before his leg cramps up. This is unrelated to the referred pain from the lower back.
Vocational assessments
34 On 16 June 2016, Aida Beltran of Converge International provided a report on Mr Duncan’s transferable skills. An analysis of the skills acquired over 26 or 27 years of commercial driving led her to conclude five occupations were suitable and none required further training: retail sales assistant, retail customer service representative (postal), despatch clerk, data entry and filing and registry clerk.
35 On 19 December 2016, Leonie Welgus of Workable Consulting prepared a transferable skills analysis report and on 11 May 2017, she prepared a 130‑week vocational assessment report. For the former, she considered Mr Duncan had the transferable skills for five occupations: weighbridge officer, fleet controller, product assembly worker (light items), process worker and despatch clerk. For the latter, she possessed reports of Dr Dayasagar, Associate Professor Damodaran (30 March 2017) and Dr Wilkins (22 March 2017). She believed Mr Duncan possessed a wide-range of transferable skills. She considered five employments suitable for Mr Duncan: weighbridge officer; fleet controller; despatch clerk; radio control room operator; and customer service officer. Each occupation drew on one or other of his transferable skills, did not require formal training and were within the restrictions recommended by the specialists.
36 Katrine Green is a psychologist. She interviewed Mr Duncan in September 2019 and reported to his solicitors.[15] She took a full history from Mr Duncan. Perhaps reflecting her psychological training, Ms Green described Mr Duncan as a slow and overly detailed historian who appeared fatigued and lethargic with flat affect. She received the main medical, psychiatric and psychological reports obtained by his solicitors. Given most of his life as a truck driver, Ms Green believed his transferable skills were very limited. After an intensive examination of each of eight occupations, none was suitable for the “foreseeable future”: truck driver; courier/delivery driver; taxi/chauffeur driver; truck jockey; warehouse assistant/storeperson; hand packer; forklift driver; and factory process worker. Her examination looked at the requirements of each occupation from the perspective of the lower back and right shoulder separately.
[15]Report dated 30 September 2019.
37 Ms Green considered other occupations. There were those suggested by Converge International, which she believed were unsuitable: despatch clerk; data entry; and filing and registry clerk. She also rejected the occupations of retail sales assistant and retail customer service representative (postal).
Medical and other reports
Physical
Dayasagar
38 Although Mr Duncan did not mention his right shoulder at their first meeting, Dr Dayasagar noted the gradual worsening of its condition and the lack of complaint before the fall and concluded it was likely it was injured in the fall.
39 At their first meeting, Mr Duncan complained of some lower back pain radiating to his left calf and hamstrings. There was bladder incontinence. MRI scans were arranged. After seeing the results, Mr Duncan was treated conservatively. With worsening shoulder symptoms, he was referred to Mr Thai, who performed an arthroscopy in May 2016. To Dr Dayasagar, the fall aggravated the degenerative condition of the lower back and a partial tear of the supraspinatus tendon and adhesive capsulitis of the right shoulder. In January 2017, Dr Dayasagar thought the prognosis was good. He considered it was highly unlikely Mr Duncan could return to his pre-injury duties but:[16]
“At some stage with conditioning and improvement with his lower back pain I presume that he might be able to trial some form of light employment, where he is not expected to lift heavy objects or to be sitting or standing in the same place for a long duration of time”.
[16] Report dated 30 January 2017 at p 3.
40 However, in a supplementary report,[17] he changed his view on employment:
“Because of the nature of his condition and associated decline in his mental health, it is highly unlikely to return to any form of employment, but I am aware that things can change over time. Earlier this year, I mentioned that he could trial alternative light duties in the future, unfortunately this did not materialise because of the deterioration in his mental health and chronic back pain”.
[17] Dated 8 December 2017
Yong
41 Dominic Yong is a specialist occupational physician. He examined Mr Duncan on 15 June 2015 at request of an authorised agent. He diagnosed an aggravation of a degenerative back without radiculopathy. He believed Mr Duncan had a current work capacity. There were restrictions. On the day of his examination, Dr Yong also made a workplace assessment. He was told the restricted duties of a clerical nature were no longer available and was asked to assess the role of check loader. He did and found it complied with his recommended restrictions. He also recommended a graduated return to work.
Thai
42 Duy Thai is an orthopaedic surgeon. Dr Dayasagar referred Mr Duncan for treatment of his right shoulder only for it appears Mr Thai did not deal with back injuries. On 5 May 2016, Mr Thai performed an arthroscopy which revealed a high grade partial articular sided supraspinatus tear, which was not repaired. It was not addressed in order to allow early mobilisation of the shoulder after the operation. There was a thickening of the middle glenohumeral ligament indicative of adhesive capsulitis. This ligament was resected and, under anaesthesia, improved the range of movement for external rotation and forward elevation significantly. Six weeks after the operation, the range remained improved. During the procedure, Mr Thai performed sub-acromial decompression, acromioplasty and bursectomy.
43 Regarding the shoulder, Mr Thai thought he had a capacity for work but, owing to the tear, should avoid repetitive overhead activities or lifting heavy loads overhead for fear of developing a full tear.
Weekes
44 Gavin Weekes is a pain specialist. Dr Dayasagar referred Mr Duncan to him about the chronic lower back pain.[18] He first saw Mr Duncan on 28 July 2015. It is unclear when he last saw him. After viewing the results of x-rays and CT/SPECT scans, on 17 November 2015, bilateral sacroiliac joint injections were performed. From a diagnostic perspective, they were unhelpful. Mr Duncan did not adopt the recommendation of lumbar medial branch blocks. Trials of analgesic medicines (including Cymbalta and Lyrica) saw little improvement. Between 26 July and 1 September 2016, Mr Duncan took part in a pain management programme.
[18]Report dated 12 January 2017.
45 Dr Weekes diagnosed lumbar spondylosis with signs of lumbar myofascial pain. By saying these injuries were consistent with Mr Duncan’s description of the fall, I can interpret that in one of several ways. It is the cause or it is an aggravation, etc., of a pre-existing injury or disease. Whichever is appropriate, since his prognosis was somewhat guarded, I would infer the causal link between employment and injury continued.
46 Dr Weekes considered Mr Duncan had some capacity for work of a sedentary nature, not involving prolonged periods of sitting or heavy lifting.
Chahal
47 Gurpinder Chahal is a general practitioner. Between June and the start of December 2019, he treated Mr Duncan, mainly for his diabetes. No doubt summarising what was known in the clinic of Mr Duncan’s conditions, physical and psychological, he concluded it would be difficult for him to find suitable employment.
Russell Miller
48 Russell Miller is an orthopaedic surgeon. On 6 March 2019, he examined Mr Duncan at the request of his solicitors. He saw the imaging for MRI scans of the lumbosacral spine and right shoulder and x-ray and ultrasound of the right shoulder. He was given a copy of Mr Thai’s operation report.
49 Mr Duncan complained of ache, discomfort and pain in his right shoulder and low back. With the shoulder, these symptoms worsened with repetitive and overhead activities. With the back, the pain radiated into his buttocks and then into both legs, especially the left, with “feelings of numbness and tingling” in that leg. His examination showed marked reduction in the movements of the right shoulder and lumbar spine. Mr Miller attributed the ongoing symptoms in the right shoulder to rotator cuff dysfunction and capsulitis. There had been a moderate response to surgery. The prognosis for the shoulder was fair. He felt the state of the shoulder was substantially work related noting a predisposition to develop rotator cuff pathology. “Work related” encompassed the fall and the significant physical work over a protracted period of time.
50 For the lumbar spine, he diagnosed a musculoligamentous strain and aggravation of degenerative disease with radiation of pain into the legs. The degenerative disease was revealed in the 2015 MRI scans which was most marked at the L4-5 and L5-S1 levels with facet joint arthropathy and mild foraminal stenosis. He noted the development of a chronic pain syndrome, suggesting its origin as psychological. Again, he felt the aggravated injury was substantially work related:[19]
“This is complex and multifactorial. It is likely there was pre-existing disease in the lumbar spine, and it is likely that this disease has been aggravated by the work injury on 25/2/2015 and further superimposed injury has occurred. I therefore regard the current clinical status of the lumbar spine as substantially work related”.
[19]Report dated 8 March 2019 at p n6.
51 I suppose “further superimposed injury” is the injury caused by the aggravation. He recommended ongoing conservative treatment. Although possible, he thought back and shoulder surgery would not benefit Mr Duncan.
52 Mr Miller placed restrictions on the lumbar spine of no repetitive bending, repetitive lifting, lifting more than five kilograms and must shift his posture regularly. For the right shoulder, there must be no repetitive right arm actions, no use of that arm above shoulder position and no lifting more than five kilograms. These restrictions are permanent. Mr Duncan could not return to his pre-injury duties on “any significant fulltime or part time basis”. After considering Mr Duncan’s age, education and work experience, he thought a return to work at all was highly problematic.
Horsley
53 Robyn Horsley is an occupational physician. She examined Mr Duncan at his solicitors’ request on 14 August 2019. Dr Horsley took a detailed history from Mr Duncan and made careful examination of the reports supplied by the solicitors.
54 For some reason, she did not have a report of the MRI scans of 2015, relying on the general practitioner’s reference to it. He complained of constant back pain, varying in intensity but, from his perspective, always at a significant level. He needs to keep moving as staying still aggravates the pain. His back is stiff in the morning with the stiffness lasting about an hour. Intermittently, pain comes from his low back into the calves. He described the pain as “a zap, a short, sharp discomfort”. Dr Horsley’s diagnosis for the lumbar spine is vague, being ongoing mechanical pain with intermittent referred left leg pain with underlying pre-existing lumbar spondylosis.
55 With the right shoulder, the pain is not constant and accompanies activities such as over-reaching, pushing, pulling, lifting and involving heights above the shoulder. Its intensity also varies with the range slightly less than that experienced with his back. Pain lasts from 30 to more than 60 minutes.
56 The work-related injury to the right shoulder was the tear of the supraspinatus. She was uncertain about the cause of the adhesive capsulitis, whether due to the work or to his diabetes. She found significant reductions in the movements of the shoulder:[20]
“..there was a significant reduction in the range of shoulder motion. Forward flexion was 110 degrees, abduction was 115 degrees, extension was 35 degrees, there was obvious pain with movement. External rotation was limited to about 30 degrees. He had great difficulty with Apley’s scratch test more superiorly on the right side than posteriorly. The test for supraspinatus was positive. The AC joint test was equivocal. The teres minor/subscapularis test was negative. The biceps test was negative on the right. Using the Jamar, he had 12 kgs force bilaterally”.
[20]Report dated 14 August 2019 at p 8.
57 Great difficulty with the scratch test reinforces the findings of reductions in movements. It seems he has the same grip strength with the hands. His response to surgery has been moderate and he is left with a significant disability. The symptoms for both were likely to persist.
58 Dr Horsley recommended he should avoid these actions using the right shoulder: repetitive over reaching, repetitive pushing and pulling, using vibrating tools, being in static postures involving the right shoulder girdle, forceful activities with the right arm, lifting more than 10 to 12 kilograms except occasionally or lifting up to 8 kilograms repetitively.
59 She recommended avoiding for the lumbar spine: repetitive over reaching, repetitive pushing and pulling, truncal rotation, repetitive bending and lifting, working in awkward and confined spaces, lifting greater than 10 to 12 kilograms except occasionally and lifting up to 8 kilograms repetitively. She recommended adopting good manual handling techniques even when lifting light items.
60 Looking at the right shoulder alone, Dr Horsley considered Mr Duncan could not return to his pre-injury duties permanently. With his back alone, she considered he would find it difficult to return to those duties, adding she saw his primary work related disability was the right shoulder. She noted the complications introduced by the disabilities of his hands, the vascular disease and degeneration in his hips. She set out a list of functional tolerances, which are unhelpful for she included the condition of the left knee. Again, she considered Mr Duncan totally and permanently disabled but this too was unhelpful because, understandably, she looked at the entire person including his “non-work related medical problems”.
Wilkins
61 Peter Wilkins is an occupational physician. On 15 March 2017 and 16 December 2019, he examined Mr Duncan at the request of an authorised agent. At the re-examination, the range of movement of the right shoulder was reduced:[21]
“…30 degrees for abduction, 20 degrees for flexion, 20 degrees for extension, and 10 degrees for adduction compared with the left side. Internal rotation was again restricted to L3(compare T8 on the left) and power for resisted movement on the right was reduced to 4/5 compared with the left”.
[21]Report dated 30 December 2019 at p 5.
62 If the movements of the left shoulder were normal, then these reductions are significant. Since they were the same findings made in March 2017, Dr Wilkins, speaking of both the shoulder and back, said:[22]
“…despite surgery on his shoulder and the sacroiliac joint injections, as well as completing of a pain management course, there has been no significant change in his condition over the interval period of almost three years since I assessed him earlier”.
[22]Ibid., at p 5.
63 Mr Duncan told Dr Wilkins of an inability to walk more than about 80 metres on level ground before developing a “cramping” in the left thigh which forces him to stop walking. On examination, the lumbar spine appeared flattened. It was tender to palpation over the facet joints at L4-5 and L5-S1 levels. There was no muscular guarding or spasm. There was limited straight leg raising for both legs.
64 After his first examination, Dr Wilkins maintained Mr Duncan had no capacity for pre-injury duties and was cautious about suitable employment[23]: “However, it may be possible for him to perform light sedentary duties provided he is able to change ad lib between sitting and standing”. He placed restrictions including changing between sitting and standing whenever needed, no bending or lifting using his right arm, no repetitive lifting of weights greater than 2 kilograms and no activities above shoulder level.
[23]Report dated 22 March 2017 at p 6.
65 After his second examination, Dr Wilkins diagnosed two work-related injuries: rotator cuff injury and lumbar spondylosis exacerbated by the fall. He identified three other conditions, which were unrelated to Mr Duncan’s employment: femoral artery claudication, decline in mental functioning and problems with his balance. He suspected dementia as the explanation for his decline in mental functioning.
66 In 2017, Dr Wilkins thought Mr Duncan could perform the jobs of a weighbridge operator, fleet controller, despatch clerk, radio room control operator and customer service officer. Whatever the cause of his decline in mental functioning, it needed investigation. Three years ago he thought Mr Duncan had a limited capacity for a small number of occupations but with poor concentration they would be dangerous for him and others. Although he did not put it in these terms, if the decline in mental functioning was reversible, then Mr Duncan was capable of undertaking retraining. Without dementia, he is capable of retraining.
67 Returning to the lumbar spine, Dr Wilkins diagnosed lumbar spondylosis, previously asymptomatic, and significantly exacerbated by the fall. He drew a distinction between “exacerbation” or “exacerbation” and “deterioration”. Since Mr Duncan stopped working the injury no longer exacerbated or aggravated his lumbar spondylosis but has resulted in a deterioration with persistent and worsening symptoms. His prognosis was guarded for the lumbar spine and right shoulder.
Curtis
68 Gale Curtis is an orthopaedic surgeon. On 17 March 2016, she examined Mr Duncan at the request of an authorised agent. Her task, in particular, was to review the need for surgery on the right shoulder and the treatment of the lumbar spine. He complained of intermittent low back pain, some pain in the left calf, loss of efficient use of his right upper limb and persistent right shoulder stiffness. She found the right rotator cuff was generally tender with limited forward flexion and abduction and impingement. With the back, she noted a flattened lumbar spine and its movements were reduced by 20 per cent. She saw MRI scans of the lumbar spine and ultrasound of the right shoulder. Mr Duncan told her of no previous history of shoulder or back problems. She diagnosed an insertional tear of the right supraspinatus tendon, age-related two or three level degenerative disease, and intermittent calf claudication. She approved of the proposed surgery for the shoulder. She did not consider surgery appropriate for the lumbar spine. For the claudication, she suggested an examination by a vascular surgeon or, at least, performing Doppler studies. She did not seem to tie the calf complaints to the lower back:[24]
“There is no stenosis to account for his calf claudication coming from his spine and suspect this may be related to the poor blood supply to his calf”.
[24]Report dated 17 March 2016 at p 2.
69 Answering a complicated question, she said of the back:[25]
“So far as his back is concerned, he has simply aggravated a pre-existing problem here; that of degenerative disease and I would have thought at this stage that the matter of aggravation has long since passed.”
[25]Ibid, at p 6.
70 Why she held that view is guesswork for there is no explanation.
Goldwasser
71 Miron Goldwasser is an orthopaedic surgeon. On 21 June 2017, he examined Mr Duncan on behalf of an agent of the defendant for an impairment assessment. His diagnoses for the shoulder and back were vague:[26]
“Mr Steven Duncan suffered a soft tissue injury to his right shoulder and lower back, consistent with activities at work, including the episode in February 2015”.
[26]Report dated 23 June 2017 at p 10.
72 The state of those injuries were unlikely to change in the next year. He made an impairment assessment of 5 per cent impairment for each, yielding a whole person impairment of 10 per cent.
Andrew Miller
73 Andrew Miller is an occupational health consultant. On 22 March 2018, he examined Mr Duncan at the request of the defendant’s agent.
74 Dr Miller noted a slight flattening of the lumbar lordosis, slight tenderness of the lumbar paravertebral muscles with slight restrictions of all back movements. He made no mention of the legs except to say the deep tendon reflexes were sluggish.
75 He measured the movements of the right shoulder and found them markedly reduced in all areas. For example, forward elevation was 90 degrees where the normal was 150 degrees. He described the injury to the right shoulder as a disruption of the rotator cuff. He linked this injury and the back to the fall but also the physical requirements of his usual work duties. He noted the response to treatment had been disappointing. He found a moderate disability in the shoulder and back due to local discomfort and restricted movements. His prognosis was guarded. Mr Duncan was unfit for his pre-injury duties and fit for sedentary duties only. Apparently combining the injuries to the lumbar spine and shoulder, Dr Miller recommended Mr Duncan should not lift over five kilograms and should avoid movements of his right shoulder and back beyond a comfortable range and forceful pulling or pushing. He should not sit or stand or adopt other static postures for more than 30 minutes at a time.
76 Dr Miller considered Mr Duncan’s employment was still a causative factor in the effects of his injuries. His prognosis was guarded “in view of his relatively refractory response to treatment to date and it appears that he could have a long term residual disability from the injuries”[27] .
[27] Report dated 22 March 2018 at p 6.
Psychological
Palmisano
77 Lisa Palmisano is a psychologist. She first saw Mr Duncan on 10 February 2017 on referral from his general practitioner. Between then and 27 December 2019, she had seen him on 33 occasions. During 2017, her treatment had seen a significant reduction in his symptoms of depression and anxiety. He regressed during 2018. On 30 November 2018, she administered Beck’s Depression and Anxiety inventories and found his symptoms were severe. Re-administered on 7 February 2019 and 13 December 2019, the symptoms had lessened to moderate. When administered on 13 December 2019, his depression and anxiety symptoms were in the moderate range. It is clear the severity of his symptoms has fluctuated since February 2017. They are better now than in 2018 but worse than the level they reached in late 2017. Plainly, there is a need for ongoing psychological treatment.
78 Ms Palmisano adopted the diagnosis of the psychiatrist, Associate Professor Damodaran, of an Adjustment Disorder with depressed mood. In her last report, she noted Mr Duncan lacked energy, motivation, concentration and the ability to retain what he had learnt. Psychologically, he has some capacity for work which is limited by his difficulty in concentrating and retaining what he has learnt.
Damodaran
79 Saji Damodaran is a consultant psychiatrist. He has examined Mr Duncan on behalf of the defendant on 22 March 2017 and 12 November 2019. He provided a report for each examination and a supplementary report. At the first examination, he diagnosed an Adjustment Disorder with depressed mood but of mild severity. He could not return to his pre-injury duties but could perform suitable employment. Even then, concentration was an issue.
80 As I said, Associate Professor Damodaran re-examined him in November 2019. He maintained his diagnosis of an Adjustment Disorder with depressed mood. However, he also diagnosed a chronic pain disorder and an alcohol abuse disorder. He considered Mr Duncan had no capacity for his pre-injury duties or hours but, within his physical limits, had the capacity for alternate duties of up to 20 hours over five days. The spacing of those hours over five years would assist him deal with his “attention and concentration difficulties”. Even those 20 hours were qualified:[28]
“…provided he is offered assistance and support and periodic breaks in order to manage his attention and concentration and he is supported”.
[28]Report dated 18 November 2019 at p 7.
81 Later, he returned to the capacity for suitable employment:
“Mr Duncan is capable of performing duties which are relatively sedentary and within his physical restrictions and limitations and which involve periodic breaks where he is able to work with a flexible arrangement of not more than 20 hours per week.”
82 His prognosis was equivocal. He might improve but had not done so for a period of time. He saw the need for ongoing psychological and antidepressant medicines. Regarding the Workable Consulting 130 week vocational assessment, he considered Mr Duncan was unsuitable for the occupations of fleet controller and radio control room operator but was suitable for the occupations of weighbridge operator, despatch clerk and customer service officer but only up to 20 hours per week and subject to periodic breaks.
Jones
83 Ivor Jones is a consultant psychiatrist. He examined Mr Duncan on 16 June 2018 at the request of an authorised agent. Professor Jones was unprepared to diagnose a psychological disorder, recognised by DSM-5. His symptoms may have once justified the diagnosis of an Adjustment Disorder but did not when Professor Jones examined him. His mental state was an apprehension and concern about his future and return to work. He noted Mr Duncan’s problem with memory and concentration, which he did not think was work or psychiatrically related but needed careful following up and possibly investigation. He did not see the need for psychological treatment. The prognosis was likely to be good because of his recovery from any psychiatric disorder but his physical state had not recovered and this introduced the need to monitor his condition.
Tagkalidis
84 Matthew Tagkalidis is a consultant psychiatrist. On 28 March 2019, he examined Mr Duncan at his solicitor’s request.
85 He diagnosed an Adjustment Disorder with depressed mood. The depressed mood was predominantly due to frustration. He also diagnosed Alcohol Abuse disorder. Both disorders were due entirely to the effects of the physical injuries suffered, and arising out of his employment. Both disorders are permanent. The Adjustment Disorder reflects the development of a “depressive and frustrated syndrome” which currently was not of the severity to justify the diagnosis of a Major Depressive Disorder. The Alcohol Abuse Disorder is due to Mr Duncan ingesting alcohol maladaptively in a recurrent, excessive and potentially hazardous manner producing some social and occupational dysfunction.
86 Owing to the likelihood of his physical state remaining permanent, Mr Duncan’s psychological state is also likely to be permanent. At present, from the psychiatric perspective only, Mr Duncan was fit for his pre-injury duties. His psychiatric state coupled with his physical state would render him unfit for his pre-injury duties. But the continuation of his physical pain could lead to an emotional decline, leading in turn to total incapacity for work. Looking at some of the matters set out in the definition of “suitable employment” in the Act, Dr Tagkalidis suggested Mr Duncan did not have the capacity for suitable employment.
87 His prognosis was guarded with the need for continuing psychological treatment.
Discussion
Injury: right shoulder
88 The fall caused the partial tear in the supraspinatus tendon of the right shoulder. Dr Horsley queried whether the adhesive capsulitis was due to the fall or his diabetic condition. Mr Thai repaired the capsulitis but not the tear. Mr Miller considered the surgery a moderate success. It left Mr Duncan with pain and restriction in movement which he attributed vaguely to rotator cuff dysfunction and capsulitis. Although not saying so, the dysfunction would include the unrepaired tear in the supraspinatus. Capsulitis remains but not to the extent of a frozen shoulder.
Pain and suffering consequence
89 The right shoulder creates a significant disability for Mr Duncan. Since the arthroscopy, he has had better movements in this shoulder but they are still significantly reduced. Both Dr Andrew Miller and Dr Horsley set out the movements of the shoulder in their reports with Dr Miller setting out the extent of normal movements. Dr Wilkins found restricted movements, giving the extent through comparing the right with the left. As far as I can tell, they are somewhat similar to the restrictions found by Dr Miller (except for flexion) and Dr Horsley. The shoulder was painful to move. Most of the time, the shoulder is painful. Dr Horsley recommended extensive work restrictions for Mr Duncan. He should not repetitively over reach, repetitively push and pull, use vibrating tools, adopt static postures involving his right shoulder girdle, forceful right arm activities, occasional lifting more than 10 to 12 kilograms and repetitive lifting up 8 kilograms. The restrictions recommended by Dr Miller and Dr Wilkins (after his first examination) were more restrictive. In light of the physical nature of most of his work history, these are significant restrictions. Since he is right-handed, they eliminate his ability to return to his pre-injury duties with Complete Pod, a job he enjoyed for many years.
Injury: lumbar spine
90 The fall aggravated or caused the deterioration of the condition of the pre-existing degenerative disease in Mr Duncan’s lumbar spine. This is the view of Dr Dayasagar, Dr Weekes, perhaps, Dr Horsley, Dr Curtis up to a point, Dr Wilkins and Dr Andrew Miller. Mr Miller and Dr Goldwasser take a broader view, implicating the nature of his work and the fall. The nature of the underlying disease is revealed in the MRI scans of 2 March 2015. The lumbar spine was diseased before the fall but there were no symptoms. It was painful following the fall and has remained so for over five years despite conservative treatment with no sign of abatement. The impairment of the body condition relating to the lumbar spine is permanent in the required sense. Dr Curtis alone says the effect of the aggravation ceased. I could not evaluate that view because she gave no reasons. There again, none of the others did. However, the preponderance of the views supports permanency.
91 Mr Duncan experienced pain in his left leg shortly after the fall. On 25 February 2015, he told Dr Dayasagar after describing the accident:[29]
“…and pain in his back and gets pains/spasms in his hamstring and calf left side”.
[29]Defendant’s court book at p 216.
92 Two days later, the doctor noted:[30]
“LBP [low back pain] – sciatica and recently bladder incontinence….”
[30]Ibid., at p 216.
93 Subsequently, he has complained of pain radiating from the back to the legs. In cross-examination, he said:[31]
“And you’ve been told that that relates to the problem you’ve got with your leg, not related to your back or to your shoulder? – Well, yeah, it says about my leg. But I think with my leg, because I get a lot of pain down – like through the buttocks, through the hamstring, and – and I believe that had come from the – the back.
But you haven’t been told that, that’s just what you’re assuming, isn’t it? – Well, that what I’m feeling”.
[31]Transcript at p 32, lines 6 to 13.
94 The passage of pain from the back through the buttocks, hamstring and calf caused Mr Miller and Dr Horsley to say the condition of the back radiated pain into his legs. Mr Miller said so despite no other features suggesting radiculopathy, neurological deficit or structural injury. Dr Curtis and Dr Wilkins speak of claudication without link to the back. The MRI scans gave no reason to implicate lumbar discs or stenosis. In time, the leg pain was closely associated with the back pain. From the earliest days, it has come and gone. The pain is experienced in a different position from where the stent is placed. On balance, I accept this particular leg pain is radiated from the lower back.
Pain and suffering consequence
95 Under the heading “Current situation”, I have summarised the consequences of his lumbar spine and right shoulder injuries. There are two body conditions involved in this application and I must keep the consequences of each separate.
Lumbar spine
96 With the lumbar spine, he suffers from constant pain. He also suffers referred pain in his legs. This is intermittent. He finds sitting uncomfortable. The back pain interrupts his sleep. Bending and lifting are problems with the former translating into a long and difficult process to remove his shoes and socks. He takes Lyrica twice daily and Panadol Osteo, usually four to six tablets daily. Admittedly, these medicines relieve both the lower back and right shoulder, but Mr Duncan sees the back as the worse of the two from a pain perspective. Apart from medicines, there is no current treatment.
97 Whether it is the lower back or right shoulder, he can never return to his pre-injury duties. A vast part of his working life has been spent driving trucks, culminating in about four years with Complete Pod Solutions. Apart from the loss of earning capacity consequence, this, in itself, is an important loss:[32]
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters is the extent to which an ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her’”.
[32]Haden Engineering v McKinnon [2010] VSCA 69 at [15].
98 He lives in his caravan at the rear of the property which he co-owns with his sister and brother. He is relieved of the worry of finding accommodation which tormented one of the applicants I saw recently in these applications. Again, whether it is his lower back or right shoulder, he cannot wash his clothes or cook his meals. He relies on his sister, which makes him feel guilty. He cannot even contribute by mowing the lawns.
99 His existence is somewhat isolated. He has lost the companionship of his colleagues at work. He has lost his enjoyment of meeting people in the towns visited through driving. Because of the pain from his back and shoulder, it is easier to stay in his caravan where he drinks heavily to relieve his pain and boredom. He cannot walk even short distances but this is due to his vascular condition. However, the state of his back severely limits his driving because of the pain itself and its effect on his concentration.
100 His memory, concentration and ability to learn has deteriorated. Dementia has been eliminated. Dr Chahal attributes the deterioration on his depression. Since I am looking at the pain and suffering consequence for organic injuries, I will disregard these effects.
101 He was a keen lawn bowler and dart player, playing both competitively. No longer does he play either. There was an intriguing cross-examination about each. After exploring balance, changing bowling hands, and his dispute with the club removing his present his desire to bowl, in the end Mr Duncan said:[33]
“But you haven’t tried, have you? – I haven’t really, but, um, I – I’ve bowled for a long time I know what it takes to be a bowler”.
[33]Transcript at p 34.
102 Then the cross-examination explored playing darts. As sometimes happens, through a series of questions, the applicant arrives at the real reason for doing things. So it was with Mr Duncan. Ten questions after the one I have just quoted, there is the following:[34]
“So that is something – if we just consider your back and your right shoulder, then you would be able to work out a way to still enjoy playing your darts, wouldn’t you? – Oh, I think I would find it difficult – the reason being that I am a pretty competitive person and as of being – I’ve won premierships playing darts. I was a champion at lawn bowls, won premierships in cricket, in football – I’ve been a pretty competitive person. I think I would struggle if I wasn’t up to what I was sort of expecting that I could do”.
[34]Transcript at p 36.
103 Although one of the questions afterwards gained a concession, I consider the critical word in the above question is “enjoy”. Mr Duncan was a champion in several sports, when young and then older. He expresses a common sentiment, a champion will not countenance mediocrity. It is a question of pride. He will not attempt either bowls or darts because he will do either poorly. That is how he is. The same applies to pool and billiards. Nevertheless, he retains friends in the club and travels with the bowling club to Hobart annually.
104 Riding his motor bike does not involve competition. The condition of his back and shoulder prevents him riding it. So would the condition of his hands. He could not operate the clutch or front brake. The state of his back plays a part:[35]
“Have you tried riding it since your injury? – I tried moving it a little while ago, but I – I couldn’t do it. The pain in the back – because you do use your back to roll it sideways so you can corner”.
[35]Transcript at p 38.
105 It is true Mr Duncan has significant difficulties with his hands and left knee. He cannot make a fist with either hand. He needs both hands to hold a full kettle. He falls over because of his knee. I do not agree his hands and knee sit more prominently than the problems with his right shoulder and lower back. I must decide what symptoms are due to his lumbar spine and right shoulder separately. It does not matter whether the hands and knee are important in their own right.[36]
[36]Dressing v Porter and TAC [2006] VSCA 215 at [47].
106 Counsel for the defendant pointed to the rare occasions where Mr Duncan’s general practitioner recorded a problem with the back or shoulder as a reason for the attendance. He submitted there is an entry on 28 December 2017 and none until 2019, with the clinical notes referring mainly to depression and diabetes. An examination of the clinical notes between 4 September 2017 and 30 October 2019 reveals a total of 60 attendances upon a medical practitioner. There are 11 of those attendances where the practitioner records mention of the back, low back or right shoulder. They are not rare. It is fair to say the focus during 2018 and 2019 was on his diabetes. This had emerged as a problem and required close attention. The condition of his lumbar spine and right shoulder were well known. The shoulder had been treated. Mr Duncan resisted further invasive treatment. He took pain relieving medicines. He did some exercises. The lack of frequent mention in the clinical notes is, in this case, a neutral factor.
107 All in all, it is the pain in his back, in its own right and its pervasive effect, which cause me to find Mr Duncan has suffered a serious injury from the perspective of the pain and suffering consequence.
Right shoulder
108 As I said before, Mr Duncan is right-handed. He has had a modest result from surgery. His right shoulder is not always painful but it is most of the time. The state of this shoulder greatly limits what he can do with his right upper limb. It is very painful for him to lift his arm to shoulder height or place it behind him. He cannot sleep on his right side. The medicines, Lyrica and Panadol Osteo, relieve the pain for his shoulder and lower back. I have discussed the effect on playing lawn bowls, darts, billiards and pool. Plainly, the shoulder pain plays roughly an equal part in preventing him playing those sports. As for motor bike riding, the back, shoulders and hands play roughly equal parts in stopping him riding his motor cycle. Similarly, the back and shoulder share responsibility for his failure to do his own housework. Again, the shoulder plays roughly an equal part in precluding his pre-injury duties. The pain from these areas contribute roughly equally to his excessive drinking. Candidly, Mr Duncan notes boredom as a factor because he is so confined to his caravan.
109 For the same reasons ascribed to the lumbar spine, Mr Duncan has suffered a serious injury relating to pain and suffering consequence.
Loss of earning capacity consequence
110 Seeking leave to start a proceeding claiming pecuniary loss damages entails the plaintiff establishing three things:[37]
(a)Mr Duncan’s loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being at least very considerable; and
(b)he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38)(f) of the Act; and
(c)he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.
[37]De Bono v VWA [2019] VSCA 85 at [47].
111 I now deal with each body condition separately.
Lumbar spine
112 Absent dementia, Dr Wilkins believed Mr Duncan could perform the occupations of weighbridge operator, fleet controller and despatch clerk. Of the vocational assessments, Ms Green’s is easily the most recent. She commented on the occupations of despatch clerk, data entry and filing and registry clerk, which had been raised in earlier Converge reports. She was unaware of the three later reports. Consequently, she did not comment on the occupations of weighbridge operator or fleet controller.
113 The description of the duties and qualifications of a weighbridge operator are sparse. The duties are: “operate weighing plant and issues measurement tickets which provide readings of vehicle and livestock weight”. What “operating weighing plant” involves is not described. It must be more complicated than pressing a button for the preferred qualifications are:[38]
“AQF Certificate II or III (ANZSCO Skill Level 4). At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification”.
[38]Defendant’s court book at p 276.
114 The defendant’s counsel submitted rather grandly these qualifications were not of “any extreme academic rigour or nature”. I daresay not, but no one could tell me what was involved in AQF Certificate II or III. I infer the course behind Certificate II would be year-long for it may be circumvented by at least a year of relevant, on-the-job experience and, for the same reason, Certificate III is two years’ long. It is true Mr Duncan has not engaged in any form of retraining. Suppose he sought to retrain by undertaking one or other of these certificates, on the evidence, he lacks the ability to do so. He cannot sit for long. His literacy skills are weak, not good. He completed only Year 10 at a technical school 45 years ago. In a sense, this is the extent of his clerical experience. His computer skills are low grade. His experience of pain affects his concentration and memory. I do not accept the failure of Complete Pod Solutions to suggest any form of retraining to him is an implied admission there is no effective training for him. Nor does Arthur Robinson (Grafton) Pty Ltd v Carter[39] apply to that aspect of the test in s 134AB(38)(e)(ii) of the Act, namely, a loss of earning capacity productive of financial loss of 40 per cent or more. Frankly, as a general proposition for this 60 year-old man, this is somewhat fanciful.
[39](1968) 122 CLR 649
115 The physical and mental requirements appear in the first Workable Consulting report.[40] Although described as “light to sedentary physical demand levels”, the demands of a weighbridge operator would test unfavourably his lumbar spine shoulder while the physical requirements of a fleet controller are much less, but intellectually, they are well beyond Mr Duncan’s background and even his transferable skills.
[40]Defendant’s court book at pp 265-266.
116 Mr Duncan was asked about various occupations: weighbridge operator, customer service officer in the transport industry, fleet controller, despatcher and radio control room operator. Counsel sought to explain the nature of the duties of the occupations. In relation to a weighbridge operator, the description in the vocational report does not do it justice. This job is not confined to weighing. It involves checking the freight into and out of a plant. Despite his explanations, Mr Duncan remained non-committal about this and the other occupations. This was a sensible position to take.
117 On the evidence, and from the perspective of his lumbar spine, Mr Duncan does not have any capacity to perform his pre-injury duties or suitable employment, whether full-time or part-time.
Right shoulder
118 Each of Dr Horsley, Mr Miller, Dr Andrew Miller and Dr Wilkins found significantly reduced movements in the right shoulder. Dr Horsley alone segregated the right shoulder from the lumbar spine and thought his primary work-related disability is with his right shoulder. I accept that comparative assessment. From the perspective of the right shoulder alone, Mr Duncan does not have capacity to perform his pre-injury duties or suitable employment on any basis.
Injury: mental
119 Despite the inability of Professor Jones to find a recognised psychological disorder in 2018, the weight of the expert opinion is that Mr Duncan suffers from an Adjustment Disorder with depressed mood. This is the view of treating psychologist who has seen him many times over several years. I accept the existence of an alcohol abuse disorder.
Pain and suffering consequence
120 At present, his psychological symptoms are of a moderate level. Their consequence from a pain and suffering perspective do not justify the description of “severe” where “severe” is more than “serious” and “serious” is more than significant or marked and at least very considerable.
Loss of earning capacity consequence
121 As I said, Mr Duncan would not satisfy the first part of the test outlined above. There is no need to consider the second part. However, the evidence is mixed. It ranges from suitability for his pre-injury duties to up to 20 hours per week with a proviso. The evidence would not allow a finding under s 134AB(38)(e) and (f).
Conclusion
122 I will give leave to Mr Duncan to start a proceeding seeking pain and suffering damages and pecuniary loss damages.
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