Egan v Amezdroz and Sons Pty Ltd
[2015] VCC 1440
•15 October 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01212
| GRAEME EGAN | Plaintiff |
| v | |
| AMEZDROZ & SONS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 12 and 13 October 2015 | |
DATE OF JUDGMENT: | 15 October 2015 (Revised) | |
CASE MAY BE CITED AS: | Egan v Amezdroz & Sons Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1440 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the left upper limb – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A MacNab with Ms R Dal Pra | Maurice Blackburn |
| For the Defendant | Mr R Stanley with Ms M Tait | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 10 February 2009 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the left upper limb.
5 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
6 The plaintiff relied upon four affidavits and gave viva voce evidence. His partner, Wendy Clayton, also swore an affidavit in September 2015. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
7 The plaintiff is presently aged sixty-eight, having been born in August 1947.
8 The plaintiff went to school until seventeen, and thereafter was engaged in manual work. He commenced work with the defendant as a truck driver in 1972.
9 The plaintiff’s job involved driving a B-Double from sawmills in Colac to Corio Quay. He worked about 60 hours per week, starting at 4.00am and usually finishing at 4.00pm, five days a week.
10 The work was fairly tiring and physical. He did two trips a day.[1] He was not required to unload the woodchips and had to pull a few levers on the trailer to activate the walking floor. He had to shut two doors. He agreed he was pretty tired at the end of a day and very exhausted at the end of the week.[2]
[1]T14
[2]T16
11 On the said date, whilst on his normal route, the plaintiff felt a sharp pop in his left shoulder while trying to wind the tarpaulin from left to right to cover the load on his truck (“the incident”).
12 About two days later, the plaintiff attended his general practitioner at the Corangamite Clinic. He was prescribed medication and sent for investigations, including an ultrasound on 17 February 2009.
13
The plaintiff was advised he had a full-thickness tear of the tendon in his left shoulder and was referred to an orthopaedic surgeon, Mr Skelley. Under
Mr Skelley’s guidance, the plaintiff then underwent a series of cortisone injections. He was advised by Mr Skelley that surgery could be a problem because of his age.
14 The plaintiff agreed there was an improvement after the first injection and he was then keen to get back to normal duties.[3]
[3]T37
15 The plaintiff thought he had had three injections with Mr Skelley at Geelong and also five injections in Colac during 2009, the last being on 29 September.[4]
[4]T38
16 The plaintiff agreed that he did not see his general practitioner about his shoulder from April 2009 to July 2013. He had had multiple injections and he had been told by a good source, Dr Mackay, that too many cortisone injections are detrimental, the injury was inoperable and surgery was a complete waste of time because of his age.[5]
[5]T40
17 During those four years, the plaintiff was having issues with his shoulder, even though he did not tell his doctor. He was not going to ask Dr Mackay for further treatment because of his earlier advice.[6]
[6]T41
18 Following the incident, the plaintiff managed his ongoing shoulder pain as best he could, taking several weeks off work and then returning to work on light duties. Initially, he worked under an “administrative” light duties certificate from Dr MacKay but all the plaintiff did was “walk around kicking stones” at work.[7] He then had a job delivering parcels.
[7]T18
19 The plaintiff agreed that he returned to “normal” duties in April 2009 but it was not the same job, there were major differences.[8]
[8]T19
20 The plaintiff could not return to his former employment duties so had to be relocated to duties that did not require manual handling with his left shoulder. In April 2009, he was transferred to driving a refrigerated truck between Colac and Melbourne, a job that did not require any manual loading and unloading. He did this run twice daily. He also did deliveries around the Melbourne suburbs, working roughly the same hours as pre incident.
21 The plaintiff had to pull himself into the cabin about three times at each delivery stop. There were push button gears on the truck and no clutch.[9]
[9]T23
22 The plaintiff was lucky that the defendant had somewhere to slot him into because due to his shoulder injury, his days of heavy work were over.
23 The plaintiff put up with his shoulder pain as best he could but became depressed by ongoing pain and shoulder restrictions. His antidepressant medication was doubled, having previously suffered from long-term depression, taking Zoloft daily before his shoulder injury.
24 The plaintiff resigned from the defendant’s employ in January 2013 because of various reasons. He was slowing down because of his age, and physical restrictions, including his damaged shoulder.
25 The plaintiff agreed he was disciplined when working for the defendant and this situation caused him some upset and depression. As his doctor noted in August 2012, the plaintiff wanted time off as it was stressful at work.
26 The plaintiff disagreed he stopped work four months later because of stress.[10] He disagreed that ceasing work at that time had nothing to do with his shoulder.[11]
[10]T66
[11]T67
27 In March 2013, the plaintiff began working part time for Shelton’s Treating Timber (“Sheltons”) in Colac, driving a tray truck and trailer, delivering treated pine posts. It was light, part-time work of up to 30 hours a week.[12]
[12]T25
28 Loading was done with a forklift and the load was secured by the forklift driver and yard personnel. The plaintiff was required to undo and do up the binders. The straps were secured by other workers.[13]
[13]T25
29 The plaintiff tightened the binders with a winch using his right hand because he could not use his left.[14] He demonstrated the process of releasing and doing up the binders, describing a situation like raising a flag on a flagpole, with his left arm steadying the bottom and his right arm fully extended.[15]
[14]T26
[15]T31
30 The vehicle the plaintiff drove at Sheltons had a manual gearshift which caused him a few hassles.[16] The truck, fully loaded, weighed about 25 tonnes and he agreed that driving it required a lot of movement of his left arm.[17]
[16]T27
[17]T28
31 The plaintiff battled on with work. In July 2013, he attended Dr Griffiths, who gave him an injection to his left shoulder. He could not recall when he attended his doctor on that occasion complaining of three days’ shoulder pain.[18]
[18]T43
32 The plaintiff no longer takes any medication for his shoulder because of his problems with cortisone.[19]
[19]T69
33 The plaintiff agreed he had three episodes of heart type symptoms in July 2013. He spent five nights in hospital for what he thought was a mini stroke.[20]
[20]T64
34 The plaintiff’s left shoulder problems were further aggravated when he fell on the tray of his truck and dislocated his left shoulder on 30 January 2014 (“the dislocation”). Thereafter, he underwent a manipulation under anaesthetic at Geelong Hospital. He later had six physiotherapy sessions.
35 The plaintiff agreed he fell heavily on his left shoulder.[21] He had pain, like he had never had before, and it was very unpleasant. He hit the deck pretty hard.[22]
[21]T47 and 48
[22]T50
36 When told the Geelong Hospital file contained no reference to his incident injury, the plaintiff disagreed that was because it was not of concern to him.[23] Maybe he did not talk about it because of the state he was in at the time[24] when he did not know “whether he was Arthur or Martha”.[25]
[23]T51
[24]T52
[25]T85
37 The plaintiff did not mention the incident injury on his 2014 Claim Form because he had not had a dislocation before.[26] He had solicitors acting on his behalf before the dislocation.[27]
[26]T54
[27]T61
38 Following the dislocation, the plaintiff was given light work certificates for about two months. He agreed that work restrictions were not formally certified before the dislocation. His duties were restricted but there was no paperwork to this effect.[28]
[28]T55
39 After the dislocation, the plaintiff was mostly working on a Cambio machine which processed logs. He was not driving a forklift.[29] He agreed that it was certified a buddy accompany him when driving the truck and that a buddy had not been suggested prior to the dislocation.[30] However, the plaintiff never went in a truck after the dislocation to require a buddy. He had a buddy helping him with the binders before the dislocation.[31]
[29]T58
[30]T60
[31]T84
40 The plaintiff agreed he may not have told Mr Gale of the dislocation when examined by him in early 2014. The plaintiff was conscious of having had two distinct injuries and could not recall discussing the dislocation with him at all. Something had obviously “gone astray” because the plaintiff would not forget the dislocation in that time. He would have no reason to purposely withhold that information from Mr Gale. It was “absolute nonsense” he was trying to downplay the dislocation.[32]
[32]T63
41 As of October 2014, when he swore his first affidavit, the plaintiff continued to suffer from ongoing pain and reduced function in the left shoulder. That caused all sorts of problems for him, as he is left handed.
42 The plaintiff could not recall the circumstances leading up to two attendances at his general practitioner for shoulder complaints in September and October last year. He agreed that his pattern of seeing doctors was very different after the dislocation. He agreed he was willing to talk to his doctors if he was in pain.[33]
[33]T70
43 The plaintiff’s left shoulder pain comes and goes throughout the day and night and comes on with movement and activity.
44 The plaintiff is now restricted to very basic movements with his left shoulder, as his left shoulder feels all stiff and painful through the joint. He cannot do any heavy or repetitive left arm movement. He cannot elevate his left shoulder above shoulder height without some assistance, and he has lost a lot of strength in his left arm.
45 The plaintiff cannot reach behind his neck or back when drying himself. He cannot pick up his grandchildren or do heavy chores around the home and garden. He is restricted to only light chores and it takes him a long time to do them. For example he cannot prune trees or do any painting; he has to get a young man to help. He requires his wife’s assistance with some tasks.
46 The plaintiff’s shoulder injury changes the way he does the basic things in a normal day. A large number of activities that he would normally take for granted have been changed. Even picking up a cup of coffee can cause pain, and he has to be very careful how he does everything.
47 The plaintiff has to constantly improvise and modify the way he does things, being careful not to aggravate his shoulder pain. One of the things that depresses him is knowing that this situation is not going to go away.
48 The incident injury completely changed the way the plaintiff worked as a truck driver and he believes it sped up the reduction in his work hours.
49 The plaintiff confirmed in his recent affidavit sworn in September 2015 that there is not a day that goes by without him being reminded of his injury. He continues to suffer ongoing left shoulder pain, which varies on activity. Lifting, pushing and pulling cause him difficulty.
50 The plaintiff’s shoulder joint is stiff and movement is restricted. He has great difficulty using his arm above shoulder height. He has lost strength in his left dominant arm and he has difficulty using it repetitively or over prolonged periods. At times, the pain travels down his arm into his neck.
51 There have been times when the plaintiff has suffered neck pain but it is not nearly as constant and severe as his left shoulder pain. It does not affect his work capacity or ability to undertake non-work activity.
52 The plaintiff often has difficulty sleeping due to his shoulder pain. His sleep is restless and he is often woken three or four times a night. He sleeps mostly on his right side.
53 The plaintiff has had to modify the use of his left arm and tries to tuck his elbow into his side when he uses his left arm to push or pull. He has trouble using his arm in an outstretched manner and when reaching across his body to pick up things. He now relies upon his right arm much more than he used to.
54 The plaintiff demonstrated how he does things with his left arm next to his body as he cannot reach out with it. He did not have any of these restrictions before the incident.[34] His shoulder is now exactly as it was before the dislocation.[35]
[34]T79
[35]T80
55 Prior to the incident injury, the plaintiff enjoyed his job. Had he not been injured, he would have continued working.
56 Outside of work, the plaintiff enjoyed gardening, home renovations, maintenance and mechanical work. He had always been very good with his hands and enjoyed manual labour and working with tools.
57 Prior to the incident, the plaintiff built his kitchen from scratch and had also built cabinets and a pergola and was able to undertake this type of work without restriction. Given the extent of his left shoulder problem, there is no way he could do this type of work now. That situation frustrates and upsets him greatly.
58 The plaintiff could maybe paint a table or chair, and probably still build something, but once he built it, he would not be able to move it anywhere.[36]
[36]T69
59 Prior to the incident, the plaintiff obtained great satisfaction helping his children with mechanical and handyman tasks, and it frustrates him greatly he is no longer capable of doing so.
60 Prior to the incident, the plaintiff serviced his cars and family members’ cars regularly. He is no longer capable of doing so, due to his shoulder injury, and he has difficulty using tools in his left hand.
61 Prior to the incident injury, the plaintiff took pride in his garden and was able to work in it without restriction. He now has to get help with the pruning, and his wife generally does the heavier tasks. He has difficulty starting the lawnmower or Whipper Snipper. He is no longer capable of splitting wood or cleaning gutters, and no longer enjoys gardening like he used to.
62 A photograph exhibited to the plaintiff’s affidavit showed the trees he had problems pruning.[37] It would now be “game over” if he tried to reach up and prune those trees.[38]
[37]T77
[38]T78
63 The plaintiff owns a 1600cc Kawasaki motorbike. He and his wife had planned to travel and tour around Australia on motorbikes. In about 2011, they travelled to Newcastle on his motorbike. However, he struggled to cope, due to shoulder pain. He had to stop quite a few times because his shoulder was getting sore and he dropped the bike a couple of times and needed help to lift it up.[39]
[39]T74
64 After that ride, it became clear to the plaintiff he would now not be able to cope with the demands of touring on a motorbike given the extent of his shoulder symptoms. While he still rides the Kawasaki, he is now restricted to shorter rides and rides it less than prior to the incident.
65 The plaintiff last took his motorbike for a ride about five weeks ago. That was the first time he had ridden it in six months. He thought the dislocation had nothing to do with his reduced motorbike riding.[40]
[40]T70
66 For ten years, the plaintiff has been a member of the Ulysses Motorbike Club which has the motto “grow old disgracefully”. He does not go out regularly with the other guys of a weekend now, mainly because of embarrassment, because he cannot ride as far and he needs help if he drops his bike.[41]
[41]T75
67 The plaintiff is now doing shorter rides. Before the incident, he went out on the bike almost every weekend. Since then, his riding has been very infrequent.[42] He would not have gone out once a month, even on a short ride.
[42]T75
68 Motorbike riding was an important part of the plaintiff’s leisure time and a good way of unwinding. He would be riding every weekend if he had not hurt his shoulder in the incident.[43]
[43]T76
69 The plaintiff corrected his most recent affidavit confirming that he had ceased work on 31 August 2014 because Sheltons needed a full-time driver. He did not put his hand up for full-time work because his shoulder would not handle it. He had, until that time, been driving 30 hours per week.[44]
[44]T11
70 The plaintiff had no idea how he had mistakenly deposed that he was still working – that had “slipped under the radar”. He is not the sort of person to make an untrue statement.[45]
[45]T12
71 The plaintiff agreed he had no time off at Sheltons or when working with the defendant after the incident because of his shoulder, but that did not mean that he did not have problems with his shoulder. He posed the question, otherwise - “Why would I be here?”[46] He did not see the need to talk to his doctors when he decided to stop work with the defendant and with Shelton.[47]
[46]T45
[47]T65
72 The plaintiff stopped at Sheltons because they put on a fulltime driver and he could not and was not willing to work those hours. Working full time was not inconvenient. It was impractical and it was too difficult to have a fulltime job.[48] He disagreed it was a lot more difficult to attend work after the dislocation.
[48]T68
73 The plaintiff could never have handled fulltime work at Sheltons. He is getting old and appreciates a bit more time outside work. He did not want the risk of aggravating his shoulder. He was coping at Sheltons and was careful not to aggravate his shoulder.[49] He never used his left hand when picking up some things outside the truck. He had the habit of using his right hand as much as he could. If he had not hurt himself in the incident, he would probably still be working at Sheltons fulltime.[50]
[49]T80
[50]T81
74 At Sheltons, the plaintiff was having problems opening and closing the back doors of the refrigerated van.[51] He enjoyed that job and but for his incident injury, he would have kept working there until he could not drive anymore.[52]
[51]T81
[52]T82
75 The plaintiff is now on call with Sheltons. He has no idea how much work he will get while on call and he has not been given any work to date.[53]
[53]T36
76 The plaintiff has never got back to driving B-Doubles after the incident. He doubted he would not be able to drive a frontend loader now because it is very hard to climb into and there is much more steering involved. Further, he would need to operate the levers for the bucket with his left hand. He did not think he would have any hope of getting up into the loader as it is higher than the cabin of a truck.[54] Previously he could “jump up like a kangaroo.”[55]
[54]T86
[55]T87
77 The plaintiff denied he was exaggerating the level of his symptoms when it was suggested they were inconsistent with his ability to work long hours. He does not drive around in Geelong “with his left hand up in the air.”[56]
[56]T71
78 The plaintiff earned nearly $53,000 in the year prior to the incident. In the following years, he earned $56,900, $59,747, and $62,756 and $70,295.
Lay evidence
79 The plaintiff’s partner of fifteen years, Wendy Clayton, swore an affidavit on 28 September 2015.
80 Ms Clayton deposed that prior to the incident, the plaintiff had been a very active man working long hours as a truck driver and taking care of the gardening and home maintenance tasks. He did all the car servicing. He considered himself to be a very good handyman and enjoyed working with tools, having a full shed.
81 The plaintiff was also a keen motorbike rider, owning a 1600cc Kawasaki. He helped his sons with handyman work and working on cars.
82 Since the incident, she has observed the plaintiff to be in pain with his left shoulder. He has difficulty with activities involving lifting, pushing or pulling and is not the handyman he used to be. He still does a few bits and pieces but it takes him longer to do so and they now call upon others to help out doing things such as the pruning.
83 The plaintiff no longer works on cars like he used to. Before the injury he would service cars, rotate the tyres and undertake mechanical repairs but they now pay someone to take care of the car.
84 Ms Clayton has observed the plaintiff having difficulty using tools, particularly overhead. He is much more dependent on his right arm than he used to be when doing so.
85 Whilst she has observed the plaintiff over the years to be in pain and restricted in terms of what he can do, the plaintiff is not the sort of person to complain.
86 Whilst the plaintiff continues to work, she knows he does so with difficultly, as she can see he is often suffering from pain and discomfort in his shoulder when he gets home after work.
87 Over the years, she has also seen that the plaintiff is restricted in the way he can physically play and interact with their grandchildren aged nine, six and three. He is restricted in his ability to pick up the girls and play sport with them and that frustrates him greatly.
88 At night, the plaintiff often has difficulty falling asleep and is often restless. She believes this is due to increased pain when he rolls on his left side.
89 Over the years, she has observed the plaintiff to have difficulty using his left arm for simple activities such as reaching for a cup of tea or the pepper and salt, cutting meat and lifting groceries. She often sees that when he is trying to lift something he tucks his elbow into his side.
Investigations
90 There was an x-ray of the plaintiff’s left shoulder carried out on 17 February 2009. It was reported that alignment was normal and there was no arthritic change or bony injury detected. The subacromial space was maintained and no rotator cuff calcification was seen.
91 An ultrasound of that date revealed a moderate sized 1.2 cm by 2.6 cm full thickness tear involving the insertion of the supraspinatus tendon in its mid portion. There was impingement of the thickened subdeltoid bursa but not the remaining intact portion of the supraspinatus tendon on shoulder joint abduction.
92 There was a further ultrasound of the left shoulder on 19 September 2014. It was reported there was an extensive old supraspinatus tear, partial tear of the subscapularis and subluxation biceps tendon.
Treaters
93 The plaintiff continues to attend Dr MacKay at Corangamite Clinic.
94 Dr MacKay reported in July 2013 that the plaintiff attended on 12 February 2009 with left shoulder pain after the incident. The working diagnosis was either a sprained shoulder or a supraspinatus tendon injury, the latter which was confirmed on imaging.
95 Treatment included analgesia, physiotherapy and referral to John Skelley, orthopaedic surgeon. The plaintiff also received cortisone injections in his shoulder with improvement.
96 Dr MacKay thought the injury appeared to be consistent with the cause.
97 Dr MacKay noted the plaintiff was cleared to return to normal duties on 7 April 2009. There was no reference to the shoulder until the plaintiff was seen on 8 July 2013 with left shoulder pain.
98 Dr MacKay thought the prognosis would appear to be good and future ongoing treatment would be unlikely.
99 Dr MacKay noted the plaintiff seemed to have long term issues over many years with mood disorders that pre and post-dated the injury.
100 The plaintiff saw Mr John Skelley, orthopaedic surgeon, on 23 March 2009 for assessment of his left shoulder injury.
101 On that date, some pain was still present in the front of the left shoulder associated with weakness. There was no deformity and no muscle wasting. The shoulder was not tender. Movements were painful but not restricted and the rotator cuff tendons were working. Sensation about the shoulder was normal.
102 Mr Skelley noted the normal shoulder x-ray of 18 February 2009 and the ultrasound findings of a tear. He diagnosed a tear in the supraspinatus tendon causing painful left shoulder movements.
103 Mr Skelley injected the left shoulder subacromial space with cortisone and local anaesthetic and advised the plaintiff to continue to take medication and remain on light work.
104 When next seen on 31 March 2009, the plaintiff reported his shoulder felt much better and could return to normal duties at work.
105 When next seen on 19 May 2009, the plaintiff reported an exacerbation of shoulder pain and the injection was repeated. On 29 September, the pain was similar and there was a repeat injection. Mr Skelley has not seen the plaintiff since.
106 Mr Skelley thought the plaintiff’s injury was consistent with the stated cause. In his view, the prognosis of that type of injury varies and does not depend on the state of the torn tendon in the shoulder. In some patients, the pain goes and causes no further trouble and in others, there is ongoing pain interfering with function. Some who have ongoing pain end up having surgery.
107 The plaintiff had physiotherapy treatment at Corio Bay Sports Clinic from Rhys Saultry after the dislocation, first seeing him on 7 February 2014.
108 The clinical notes indicated the plaintiff previously had a full-thickness supraspinatus tear.
109 On the first examination, there was extensive bruising down the plaintiff’s left arm and tenderness about the shoulder joint. It was noted he reported he had never regained his full movement after his supraspinatus tear. The x-ray of 31 January 2014 revealed an anterior dislocation.
110 The plaintiff was seen five times subsequently. He improved over the course of three to four weeks and was reportedly back to the level of functioning on 27 February 2014 as he had been prior to the dislocation. His reported active range of movement was 110 degrees at both flexion and abduction. He had strength deficits that were consistent with the previous rupture of the supraspinatus tendon.
111 It was reported that the plaintiff felt that he had returned to doing the functional activities at home to his pre injury level (at the compromised level of his previous shoulder injury) and he had returned to work. The plaintiff has not been seen at that clinic since 27 February 2014.
112 The notes from Emergency Department Colac Area Health of 30 January 2014, when the plaintiff attended following the dislocation, set out a previous history of left shoulder injury.
113 Dr Joshi’s referral of the plaintiff to Geelong Hospital on 30 January 2014 detail a previous history of supraspinatus injury to the left shoulder.
Medico-legal examiners
114 Mr Khan, orthopaedic surgeon, examined the plaintiff on 8 September 2015.
115 The plaintiff told him of the incident and injury, subsequent treatment, referral to Mr Skelley and cortisone injections. The plaintiff advised he resigned from the defendant’s employ in January 2013.
116 Mr Khan noted subsequently the plaintiff had symptoms of TIA and was treated at Geelong Hospital with a diagnosis of Vertebral Basilar Insufficiency. He was told not to drive for a month and placed on aspirin and medication.
117 Mr Khan noted the second injury where the plaintiff dislocated his left shoulder on 30 January 2014 and the treatment that followed.
118 On examination, the plaintiff complained of continuing pain and reduced left shoulder movement. He slept poorly as the pain disturbed his sleep, particularly when he rolled over to his left side. He had some difficulty with personal hygiene tasks. He could not pick up his grandchildren and had limited capacity to perform household chores and could not work in the garden.
119 Mr Khan noted the plaintiff could not take a number of tablets due to his gastrointestinal irritability.
120 On examination, the plaintiff had mild aching type of pain on movements of the left shoulder in the anterior and outer aspects. There was some mild wasting of the musculature in the left supraspinatus fossa of the left shoulder blade. There was no scapular winging.
121 At rest, the plaintiff tended to protect his shoulder avoiding excessive movement. He could move his elbow and hands. Movements of the left shoulder revealed that forward flexion was passively done to 70 degrees, and beyond that there was increasing discomfort. Abduction was to 60 degrees passively, extension, abduction and internal rotation with the arm in forward flexion was to 20 degrees and external rotation was to 60 degrees. O’Brien’s Test was mildly positive with pain in top of the shoulder and the anterior aspect of the shoulder. There was a weakness of left hand grip.
122 Mr Khan thought the plaintiff sustained a tear of the rotator cuff tendon in the incident which had started to cause impingement and shoulder pain.
123 Mr Khan thought the plaintiff’s left shoulder had stabilised and he had been left with significant residual after effects of the injury. He had been left with significant pain and disability in the shoulder with partial limitation of movement and aggravation of the pain on attempting elevation, pushing or pulling of the left shoulder or twisting and turning his left arm strenuously. He suggested the plaintiff avoid elevation of his left arm in forward flexion and abduction.
124 Mr Khan considered the plaintiff’s condition had reasonably stabilised when exposed to another injury with the dislocation which was satisfactorily reduced. He noted the subsequent ultrasound of September 2014 was reported to show an old extensive degenerative tear of the supraspinatus tendon and also degenerative change in the rotator cuff tendon.
125 Mr Khan thought the plaintiff continued to need to see his general practitioner and shoulder specialists as adequate pain management and supervision of his left shoulder condition as it was likely to deteriorate slowly with the passage of time.
126 Mr Khan considered the plaintiff had a restricted work capacity in terms of lifting, pushing, pulling, prolonged use of the left shoulder and overhead activity, which was likely to continue for the foreseeable future.
127 In Mr Khan’s view, the incident continues to remain as a material contributing factor to the plaintiff’s left shoulder condition. Mr Khan thought there were restrictions of social, domestic and recreational activities, excluding the effects of the dislocation and the plaintiff’s psychological and psychiatric conditions.
128 Mr Khan considered the plaintiff’s long term prognosis is not favourable as full thickness tears and a degenerate tendon are likely to progress slowly with the passage of time and cause an increasing degree of stiffness and restricted movement with activity associated with pain. He thought the plaintiff was at an increased risk of developing degenerative changes or arthritis and there was a likelihood of long term deterioration in the future. He thought there was no indication for further surgery.
The Defendant’s medical evidence
129 Mr Timothy Gale, general and trauma surgeon, examined the plaintiff on 7 March 2014 for the purposes of an AMA assessment.
130 The plaintiff gave him a history of the incident and subsequent treatment and advised he did not recall any subsequent injury to the shoulder.
131 The plaintiff told Mr Gale he occasionally took pain killers. He was troubled with marked restricted range of left shoulder girdle motion and there was intermittent soreness of the shoulder, particularly if he lay on his left side or attempted to perform strenuous activity using his upper left extremity.
132 On examination, there was no focal tenderness or palpable abnormality in the shoulder girdle, although there was minor wasting of the periscapular muscles.
133 Mr Gale thought, as a result of the incident, the plaintiff is likely to have suffered a rotator cuff tear of the supraspinatus component of the left shoulder girdle, from which he has ongoing pain and disability. He considered the plaintiff currently had persisting symptoms relating to left shoulder girdle and he probably had secondary adhesive capsulitis accounting for the significant restricted range of shoulder girdle motion.
134 Mr Gale thought the plaintiff’s prognosis was poor and that he had long term left shoulder symptoms arising out of the incident.
135
The plaintiff was examined by Rodney Simm, orthopaedic surgeon, on
14 January 2015.
136 The plaintiff told him of the incident and left shoulder injury, subsequent treatment, three episodes of symptoms involving some form of transient ischaemic attack in 2013 and then the dislocation on 30 January 2014.
137 Mr Simm noted the plaintiff regarded the current condition of his left shoulder as it was prior to the dislocation. He attributed pain and limitation to the injury in the incident. The plaintiff believed he made a full recovery from the dislocation.
138 On examination, Mr Simm noted the plaintiff had limited movement of the left shoulder and could not reach the back of his head and could not dry his back. He could lie on his left side for short periods at night and had nocturnal pain. He had no symptoms with the left arm resting comfortably by his side, but as soon as he attempted to lift it out, he often experienced pain over the front of the shoulder.
139 On examination, there was some wasting of the spinati muscle, with no significant deltoid wasting. Movements of the left shoulder were presented in a guarded fashion and there was a global pain response with evidence of pain on all movement. There was some restriction of shoulder movement. There was no localised tenderness to palpation around the shoulder in the regions of the rotator cuff or acromioclavicular joint.
140 Mr Simm had the 2009 investigations and also the ultrasound of 19 September 2014.
141 Mr Simm noted the incident in January 2014 resulted in what was apparently an uncomplicated anterior and inferior dislocation of the left shoulder treated conservatively.
142 Mr Simm thought the plaintiff presented with painful dysfunction of the left shoulder consistent with progressive degenerative rotator cuff pathology. He noted there was a rather nonspecific global pain response when physically examined, which made it difficult to evaluate the specific clinical signs of rotator cuff impingement and/or dysfunction. The greater range of passive overactive forward elevation was consistent with rotator cuff deficiency. He noted the tear shown on ultrasound in 2009 and that it was known that tears of the cuff do gradually increase in size with the passage of time.
143 Mr Simm noted there was no medical file material that confirmed the plaintiff’s ongoing and substantial disability in the left shoulder requiring formal medical treatment until 2013, after the initial treatment, when it was recorded he had one consultation of left shoulder pain.
144 Mr Simm thought a dislocation in the presence of degenerative rotator cuff pathology may cause further and substantial disruption of the degenerative rotator cuff. He thought it would be, therefore, relevant to know what the status of the left shoulder was prior to the dislocation and compare it to the plaintiff’s current status, having noted that information may be obtained from Dr MacKay, who saw the plaintiff in July 2013.
145 On the available material, Mr Simm considered it was difficult to determine whether the current left shoulder condition was due entirely to progressive degenerative rotator cuff pathology with a significant contribution from the incident, or whether it was due to further rotator cuff injury when the plaintiff dislocated his shoulder.
146 It was also difficult, in Mr Simm’s view, to determine the contribution to the plaintiff’s current condition from the progression of the degenerative rotator cuff pathology that would have occurred in the absence of either of those events.
147 Mr Simm noted that if there was recovery or substantial recovery between 2011 and 2013, then the marked deterioration noted on that day’s examination would more likely relate to the progression of the constitutional degenerative changes rather than the effects of the incident.
148 Mr Simm thought there was probably a limited functional contribution as the plaintiff did present with rather nonspecific global pain when physically examined but he regarded him as essentially genuine in his presentation and he attributed the left shoulder dysfunction to advanced and progressive degenerative rotator cuff pathology.
149 Mr Simm noted the plaintiff is not able to elevate his left arm above shoulder height or reach out with his left hand to support even light weights in his left hand. He could use his left arm for moderate physical activities with his arm close to his body.
150 Mr Simm thought the plaintiff would be able to support weights of up to 5 kgs in his left hand, close to his body, but not away from it. He could do repetitive activities with his wrist and fingers on the left with his arm close to his body. He was quite capable of driving a manual truck and this involved using the gear levels with his left hand, which he indicated was at about hip height.
151 Mr Simm thought, with appropriate constraints on use of his left upper limb, the plaintiff was capable of fulltime work as a truck driver.
152 On re-examination on 20 August 2015, Mr Simm noted there had been no change in the plaintiff’s condition since last seen. He continued to perform the same work duties and hours, and still had daily left shoulder pain and restricted movement.
153 Mr Simm noted that the plaintiff presented in a straight forward and cooperative manner and there was no apparent elaboration of physical signs. Shoulder movements were identical to the last examination.
154 Mr Simm noted resistance tests suggested there was supraspinatus tendonitis and associated dysfunction.
155 Mr Simm concluded the plaintiff’s persistent painful dysfunction of the left shoulder was consistent with progressive degenerative rotator cuff pathology and associated rotator cuff dysfunction. It was suggestive of subacromial impingement but not diagnostic, and resisted abduction was consistent with supraspinatus dysfunction.
156 Mr Simm noted the quite marked left shoulder dysfunction would seem to relate to the progressive constitution of degenerative rotator cuff pathology with a significant contribution to the acceleration of that pathology as a result of the rotator cuff tear in the incident.
157 Mr Simm again noted that it would be helpful to obtain a report from Dr MacKay regarding the July 2013 examination to determine whether or not the left shoulder was examined and, if so, what was the range of movement.
158 Mr Simm again noted there did not appear to be a substantial functional component. He thought the general clinical presentation was that of significant left shoulder rotator cuff dysfunction with a better range of passive and active movement and with weakness to resistance testing.
159 Mr Simm repeated his comments about the plaintiff’s employment capacity and occupational restriction.
Other evidence
160 A WG Employee Counselling and Discipline Form dated 8 August 2012 set out that the plaintiff violated OH&S safety rules by trailer blocks not being in place while unloading. He received verbal counselling and was banned for Regal work. This was the first written warning.
161 The plaintiff filed a claim for compensation on 6 February 2014 in relation to the dislocation. He left blank the answer the question “have you previously had another injury – condition or personal injury claim that relates to this injury condition?”
162 There was a return to work arrangement from WorkSafe in February 2014 setting out the plaintiff was to drive a truck and/or forklift only. He was to have a buddy to accompany him on all truck trips and a buddy responsible for securing load tensioning and release of binders. It was noted there was to be no exertion of the left shoulder, no throwing of binders (webbing straps) over the truck load.
163 Another document of February 2014, set out the return to work arrangements as stacker at Top Peeler or Bezner Plant, tasks with rolling posts in weighting cradle and, using a forklift to remove completed packs of posts. Specific tasks to be avoided were no stripping of packs, this task is to be left to strapper.
164 Following examination on 5 February 2014, after the dislocation, the plaintiff was certified unfit for any duties from 30 January to 10 February 2014 by Dr MacKay.
165 Following examination on 10 February 2014, the plaintiff was certified fit for modified duties from 11 February to 2 March 2014.
166 Following examination on 3 March 2014, Dr MacKay certified the plaintiff was expected to be fit for normal duties from that date.
167 A Barwon Health Records/Discharge Summary dated 17 July 2013 set out at that the plaintiff presented post two episodes of feeling unsteady on his feet and altered visual perception (? visual ataxia). The reason for admission was noted “? Stroke”, with a CT scan of the brain carried out and an MRI scan.
168
Notes from Emergency Medicine at Geelong set out details of the attendance post dislocation. Past medical history was noted as hypertension, TIA – vertebral stenosis at VB junction, left carotid artery stenosis 50 to 69
per cent.
169 Dr Dumbrava, neurology registrar from Barwon, wrote to Dr Mackay in August 2013 having reviewed the plaintiff that day. He noted there was a history of hypertension, hypercholesterolaemia and depression.
170 Dr Drumbrava noted that on 9 July while driving, the plaintiff suddenly experienced a brief fainting sensation. There were further events whilst driving on 11 and 12 July 2013.
171 It was noted, based on the history and investigations, the plaintiff suffered vertebrobasilar insufficiency episodes that can lead to recurrent events. It was suggested that he submit this letter to VicRoads for a medical compliance for review.
172 Lauren Tonkin, occupational therapist, reported on 30 August 2013 that there was an occupational therapy referral received at Belmont Community Rehabilitation Centre for the plaintiff from Geelong on 16 July 2013 following a TIA, noting he had presented at Geelong Hospital with visual disturbance, change in cognition and unsteady gait pattern.
173 It was noted the plaintiff was waiting to return to work as a truck driver. He had reported perceptual deficits had resolved but was experiencing mild ongoing mild cognitive problems. He declined need for physiotherapy but was wanting further input regarding cognition. He had asked to see an occupational therapist in Colac rather than Barwon in Geelong as he was not then able to drive.
174 An Outpatient Report from Barwon Health of 1 October 2013 set out that the plaintiff was sent to vascular outpatients with questions about his 50 to 69 per cent carotid artery stenosis, which was probably symptomatic.
175 It was noted the plaintiff was admitted in July with an unusual constellation of symptoms, with visual agnosia, mouth weakness and generalised weakness. He had three episodes over three days, each lasting 20 to 30 minutes, however he did not have harder clinical symptoms. He was sent for investigation.
176 It was noted on assessment certainly the plaintiff’s symptoms were atypical and his stenosis was moderate and occurred while not on any medical management and active smoking. It was recommended that given that nearly two and a half months had passed since the recorded event and the symptoms were atypical, it would be prudent to simply wait and see.
177 The plaintiff was advised as to what more classical symptoms of a left side carotid TIA would be, and to represent to emergency if he had those. A repeat scan was organised for April 2014.
Overview
178 There is no dispute that the plaintiff suffered a compensable injury to his left dominant shoulder in the incident. There is no suggestion of any pre-existing shoulder complaint.
179 Further, the consensus of medical opinion is that the plaintiff suffered a rotator cuff tear in the incident. As Mr Simm concluded, there was quite marked left shoulder dysfunction which would seem to relate to the progressive constitution of degenerative rotator cuff pathology with a significant contribution to the acceleration of that pathology as a result of the rotator cuff tear in the incident.[57]
[57]T128 – “the plaintiff’s case in terms of the medicine”
180 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses and also accepted the plaintiff’s impairment claim. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[58] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[58][2006] VSCA 171
Credit
181 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[59]
“… 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.”
[59](2010) 31 VR 1 at paragraph [12]
182 Counsel for the defendant submitted the plaintiff was keen to “put his best foot forward”[60] and that his evidence in some regards should be treated with some scepticism.[61] Reliance was placed, inter alia, on the inaccuracy in the plaintiff’s recent affidavit as to his present work situation, the lack of reference to the incident injury in his 2014 claim form, his first description of his current work duties to the effect that he did not use his left arm at all when clearly that was not the case and also his history to Mr Gale of no subsequent shoulder injury when he saw him shortly after the dislocation.
[60]T107
[61]T106
183 However, despite these matters, I found the plaintiff to be a very truthful witness who answered questions candidly and at times against his own interest such as when explaining his advanced years was a reason for not continuing working full time.[62] As counsel for the defendant conceded, the plaintiff is obviously a hardworking man, having worked over forty years with the defendant. His stoicism was not really questioned.
[62]T132
184 Whilst surveillance had been undertaken as set out in the Defendant’s Court Book index, no film was shown.
185 Further, no medical examiner was of the opinion that the plaintiff was exaggerating or embellishing the level of his left shoulder symptoms and restrictions.
Pain and suffering consequences
186 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[63] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain, both in court and to doctors.
[63](Supra) at paragraph [11]
187 I accept, since the incident, the plaintiff has had left shoulder pain, particularly with activity. His movement is significantly restricted in terms of overhead activities, repetitive tasks or ones requiring extended outstretched use of his left hand.[64]
[64]T131 – Mr Simm
188 The plaintiff initially underwent conservative treatment with as many as eight injections during 2009 from Mr Skelly, orthopaedic surgeon, to whom he was referred by his general practitioner.
189 Whilst the plaintiff did not complain to his doctor of shoulder problems between April 2009 and July 2013, (seeing Mr Skelley until late September 2009), I accept his explanation that he did not seek treatment because there was nothing further that could be done. He had been told by Dr MacKay that there were only a certain number of cortisone injections it was safe to undergo. Further, the plaintiff had been advised there was no surgery or any other further treatment that would assist him.
190 Counsel for the defendant submitted that the plaintiff had failed to delineate the consequences of the incident injury from those of the subsequent dislocation in January 2014 and that any present impairment was not serious.[65]
[65]AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309
191 It was submitted the dislocation was not a “temporary hiccup.” Comparing the pre dislocation state with that thereafter was said to be “chalk and cheese.”[66] Focus in this regard was placed on the plaintiff’s work situation, medical treatment and motor bike riding pre and post dislocation.
[66]T118
192 It was submitted the effect of the incident on work pre dislocation was minimal. There was a return to light duties three weeks after the incident and a month or so later, the plaintiff resumed normal duties driving a refrigerated truck working the same hours as pre incident. He required no time off in that job, working until January 2013.
193 Further, it was submitted one of the reasons the plaintiff ceased working for the defendant was stress relating to a disciplinary issue four months earlier.
194 The plaintiff then worked a further two years at Sheltons, driving for up to 30 hours per week. During this time, he required no time off for his shoulder injury, although that driving job required a lot of use of his left shoulder.[67]
[67]T112
195 It was submitted that prior to the dislocation, the plaintiff was coping very well.[68] Thereafter, there was a period of certified light duties, unlike the situation beforehand.
[68]T119
196 From a treatment perspective, post dislocation the plaintiff’s attendances on his general practitioner increased with five visits until March 2014. There were then visits in September and October 2014 which it was submitted did not relate to the incident injury.
197 In terms of motor bike riding, following the incident, the plaintiff was able to ride his motor bike to Newcastle in 2011 over three days. It was submitted that since the dislocation he has not been able to ride on these sort of trips and his riding had decreased significantly.
198 Clearly the dislocation in January 2014 aggravated the plaintiff’s condition as he deposed. I accept, however, that after a couple of months, his shoulder returned its pre dislocation condition as he stated.
199 Following the dislocation, there was not a sustained change in the plaintiff’s treatment regime. After five initial attendances, the last on 25 March 2014 when Dr Macaky noted “left shoulder doing well and mobility as it was, no worse and no pain,” there were only two further attendances, one in September and October 2014.
200 Whilst Dr Mackay last reported in 2013, he also confirmed the post dislocation improvement in his notes of 3 March 2014 – “left shoulder is much better now, back to previous stiffness” – and certified the plaintiff fit for normal duties.
201 Further, the physiotherapist noted having last seen the plaintiff on 27 February 2014, that he had improved over five treatments and felt he had returned to doing the functional activities at home to his pre dislocation level.
202 As counsel for the defendant conceded, there was no support from a medico legal perspective for there being any ongoing effects of the dislocation on the plaintiff’s present shoulder condition.[69]
[69]T101
203 Taking into account all the evidence, I am not satisfied the dislocation is of any relevance to the plaintiff’s present shoulder condition.
204 I accept that since the incident injury the plaintiff has been unable to resume driving heavy vehicles and any work involving loading or unloading.[70] In his last four years with the defendant while he worked fulltime, it was purely in a driving role not requiring use of his left arm.
[70]T126
205 I accept the plaintiff left the defendant’s employ where had been for over 40 years, both because of stress at the workplace and also because of difficulty doing his job with his left shoulder pain.
206 The plaintiff then stated work with Shelton’s, where he has worked until late August this year, 30 hours a week, doing lighter driving work.
207 Whilst formal light duties restrictions were imposed by Dr Mackay in the five weeks after the dislocation, I accept that the plaintiff was working lighter duties “without the paperwork” prior to the dislocation and even with this limited certification, there was no significant alteration in the plaintiff’s duties post dislocation.
208 I accept that the plaintiff was unable to take the fulltime job offered by that employer in late August 2013 because of both his age and also his inability to work full hours in an unrestricted fashion because of his left shoulder injury.
209 I accept that the plaintiff has effectively come to the end of his working life somewhat prematurely, being a very hard working man having really enjoyed his role in the workforce.
Other consequences
210 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[71]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[71](Supra) at paragraph [45]
211 The plaintiff’s evidence of sleep problems due to shoulder pain was unchallenged and was corroborated by his partner, who was not cross-examined.
212 I accept that prior to the incident the plaintiff was a very competent handyman, as confirmed by his partner and the photographs exhibited to the affidavit of the kitchen renovation and pergola.
213 The plaintiff is now able to just do bits and pieces around the house and even tasks such as painting a small piece of furniture would prove difficult for him. His ability to service the family cars is limited.
214 Further, the plaintiff is unable to prune trees in his back yard and can just do a little bit of weeding because of the overhead nature of that work and his inability to hold machinery, and he has to get help from others to do it.
215 The plaintiff is restricted in his ability to undertake personal hygiene tasks such as drying his back.
216 The plaintiff is also restricted in his ability to play with his three young grandchildren who are aged under ten.
217 Whilst there was some suggestion that the plaintiff’s hypertension/heart condition would have an effect on these activities, there is no medical evidence to this effect. Further, I accept the plaintiff’s evidence that problems in that regard were short lived in 2013 and have had no ongoing sequelae.
218 I also accept that the plaintiff’s main hobby of motor bike riding has been significantly affected by his incident injury. Before the incident, the plaintiff used to ride every weekend with the Ulysses “aging disgracefully” Motorbike Club. Now, his riding is infrequent because he is embarrassed that he cannot hold his bike up if he drops it and he also has pain on extended riding. He is unable to go on a trip around Australia on his bike with his partner as he had planned,[72] last being able to do a long ride to Newcastle in 2011, sometime before the dislocation.
[72]T126
219 I am satisfied, on the medical evidence, that the plaintiff’s condition has stabilised and the effects thereof are permanent.[73]
[73]T128 – Mr Khan
220 Taking into account all the evidence, I am satisfied that the impairment to the plaintiff’s left shoulder meets the statutory test of seriousness.
221 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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