Henderson v Tobin Brothers Pty Ltd
[2012] VCC 1853
•29 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04064
| ROCKY HENDERSON | Plaintiff |
| v | |
| TOBIN BROTHERS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 October 2012 | |
DATE OF JUDGMENT: | 29 November 2012 | |
CASE MAY BE CITED AS: | Henderson v Tobin Brothers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1853 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the right shoulder – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave granted to bring proceedings for damages for pain and suffering. Application in relation to loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M P O’Dwyer SC with Mr G Wicks | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R H Stanley | Lander & Rogers |
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 in the course of his employment with the defendant from 5 May 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application 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 body function relied upon in this application is the right shoulder.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
16 The plaintiff is presently aged fifty nine, having been born in India in 1953. Having completed secondary school, the plaintiff came to Australia in 1972 aged nineteen.
17 When he arrived in Australia, the plaintiff commenced work with the Public Transport Corporation (“PTC”) as a train guard, and worked there until 1995 when that position was made redundant.
18 Whilst unsure of the date, the plaintiff could recall having an injury to his arm while working at the PTC. He vaguely remembered a period of time off work, and on his return, having no ongoing problems with his arm or neck.
19 On or about 25 November 1995, the plaintiff commenced work with the defendant as a full time funeral director’s assistant (“FDA”).
20 The plaintiff’s duties included collection of corpses from domestic situations, such as nursing homes and private houses. He coped well with the job, although he found he was often tired because of the long hours, but adjusted to it. His duties involved heavy lifting, which he was not used to. He coped with difficulty with this aspect of the job.
21 The plaintiff confirmed the majority of hours he worked were overtime, having been shown a Claim Form which set out he was earning $14.87 an hour for a 38-hour a week, totalling $565.06, with overtime of $614.98.
22 The plaintiff explained he was paid double time after 7.00 pm. He could not estimate how much overtime he did, but then said it was not really called overtime. One week, FDAs with a partner were on standby, starting work at 8.00 am, and they were then on call for twenty four hours. Duties during that time involved transferring deceased people and dressing bodies. The next week, duties involved driving families to church and the funeral from 8.00 am to 5.00 pm. The following two weeks were nightshift work from 11.00 pm to 8.00 am.
23 The plaintiff agreed the twenty-four hour on call job and nightshift could be very tiring and that his job was a physical one.
24 The plaintiff explained that a jump in his annual earnings from $47,000 in the 2001-2002 financial year to $55,000 the following year indicated increased overtime. The increase from $58,000 in 2004-2005 to $65,000 the following year may represent a pay increase and increase in the overtime rate, but he was always doing the same job.
25 The plaintiff denied that he would have reduced his hours if he did not suffer injury, as he found the job physically tiring. He explained that “it did not work like that” and the number of hours worked were not under his control. He was required to work the hours set out on a roster that covered a period of months and months. There were about twenty other FDAs who did the same job as the plaintiff.
The Incident
26 On or about the said date, the plaintiff suffered injury when manoeuvring a large deceased woman on a stretcher with a co worker up some steps. When the plaintiff had to take her full weight, he then felt a tearing sensation to his right shoulder with the onset of stabbing right shoulder pain (“the incident”).
27 Once up the flight of stairs, the plaintiff experienced more pain in his right shoulder when the body on the stretcher was placed onto a trolley.
28 After the incident, the plaintiff’s right shoulder pain continued, more noticeable at night. He was aware that lifting his arms provoked pain, particularly attempting to lift above shoulder height. He thought the pain would go away but it did not.
29 The plaintiff applied Deep Heat, but without success. He reported the injury and was sent to the defendant’s doctor, Dr Arkell, whom he first saw on 9 May 2006.
30 Dr Arkell recommended physiotherapy, which the plaintiff underwent without much benefit. He continued at work, performing light duties, and an ultrasound was organised by Dr Arkell.
31 Dr Arkell referred the plaintiff to an orthopaedic surgeon, Mr Pullen. The plaintiff first Mr Pullen in June 2006 and he sent the plaintiff for an MRI scan later that month.
32 On review, Mr Pullen told the plaintiff that the MRI scan showed extensive damage to his right shoulder. As the plaintiff’s symptoms did not improve, Mr Pullen recommended surgery, which was carried out at the Mercy Hospital (“the Mercy”) on 15 August 2006 in the form of an arthroscopy (“the operation”).
33 The plaintiff was discharged home with his arm in a sling, which he wore for about two weeks. He then had about four weeks off work and continued with physiotherapy and commenced hydrotherapy. He had physiotherapy until mid December 2006, when his treating physiotherapist concluded there was not much he could do for the plaintiff after having taught him some home-based exercises, which the plaintiff continued to undertake.
34 When the plaintiff returned to work, he commenced on four hours a day, three days a week, which he increased to eight hours for five days over a two to three-month period. He performed light duties, which involved minimal use of his right arm. For a few months, he performed clerical duties in co-ordinating activities, taking phone calls and filing. Later, he worked as a full time consultant/arranger, a job involving meeting families and arranging the funeral. He found this job to be very stressful.
35 The plaintiff’s income in 2006 of $65,000 included a fair bit of overtime.
36 When the plaintiff returned to work, he experienced ongoing right shoulder pain. He took Panadeine Forte regularly, but preferred to take Panadol if the pain was not too bad. He continued to rub Dencorub into his shoulder.
37 The plaintiff was reviewed by Mr Pullen on one occasion after the operation.
38 In late May 2006, the plaintiff consulted Dr Soo for treatment of his shoulder. He had been the plaintiff’s family doctor for many years.
39 In November 2006, Dr Soo referred the plaintiff to Mr Evans, an orthopaedic surgeon, with a special interest in shoulders. The plaintiff saw him once and he indicated to the plaintiff he was not able to offer any intervention which would improve his shoulder pain and stiffness.
40 The pain and stiffness persisted and the plaintiff began to become anxious and depressed and started to have episodes of tearfulness for no apparent reason. He was becoming anxious about going to work.
41 The plaintiff began to experience a sensation of tightness in his chest. He attended Dr Arkell, who was not available, so instead he saw Dr Walker, who put him off work and commenced him on an antidepressant medication, Endep, and a relaxant, Tryptanol.
42 In cross examination, the plaintiff described how, due to the stress of the consultant’s job, he ended up having a shortness and tightness of breath, like a net closing on his chest. He liked the interaction with families that the job involved but the problem was putting the funeral plan together back in the office, having no clue about computers. He had back pain and it was taking him double or triple the time to do the requisite tasks, and that was stressing him out.
43 The plaintiff also experienced right shoulder strain moving the computer mouse. At those times, he took Panadol.
44 When working as a consultant, the plaintiff was required to be on duty on Saturday through to Sunday but he could not remember how often he worked those hours.
45 The plaintiff would have preferred to do a job dealing directly with families, like driving them from the church to their house and the cemetery. That specific role did not exist. If the plaintiff had been given the chance to do it, he could have coped as there was not a lot of driving involved.
46 The plaintiff lodged a stress claim on 2 January 2007.
47 Investigation of the plaintiff’s chest pains revealed a heart problem. On or about 30 October 2007, he had stents inserted in the cardiac artery. He stayed off work thereafter and accepted a redundancy packing in April 2008.
48 In cross examination, the plaintiff agreed he did not return to work after the heart condition was diagnosed and he accepted a redundancy package in April 2008. He did not stop work because of his heart. He stopped because he was stressed out with the demands of the consultant office job.
49 Having left the defendant’s employ, the plaintiff was then desperate to work. He did a Food Handling and Responsible Serving of Alcohol course in 2008. He asked Centrelink for a training course and he was sent to a job agency.
50 The plaintiff was out of work for about two or three months until July 2008, when he obtained work as a part time casual for a couple of months, working four hours a day, five days a week, as a courier collecting pathology samples.
51 The courier driver work was not a heavy job and involved transporting only small containers from Ringwood to Mooroolbark. The plaintiff could do that work because it did not involve a lot of driving and he was always getting in and out of the car.
52 Had the plaintiff been offered more hours, he would have worked them, depending on the hours. There was nothing in that job that caused significant problems with his right shoulder because he used to rest it and use his left hand. He used to get pain depending on what he was doing.
53 The plaintiff then obtained work at DGTEC, part of the Hills Group, through an agency, Adecco, in November 2008. In cross examination, the plaintiff explained that he obtained this work through a friend as he was desperate to work longer hours than were available to him in his courier job.
54 The plaintiff’s job at DGTEC involved sitting at a work bench repairing faulty set top boxes for televisions. He was retrenched from that employment in April 2010.
55 The plaintiff recommenced full time work with DGTEC shortly after swearing his first affidavit in May 2010. He did the same work as earlier. Some time in the latter part of 2010, he was put off again, but was reinstated after about four days.
56 The plaintiff continued working full time until 29 July 2011, when he was put off again as he was casual. DGTEC was a good company and the plaintiff would have continued working there had he not been terminated.
57 The work affected the plaintiff sometimes. He got pain when he moved his shoulder and at those times, he would just take a tablet. The majority of the time he would try to use his left hand only.
58 At DGTEC, the plaintiff worked from 8.00 am to 4.00 pm five days a week and was paid for a forty-hour week. He might have worked more hours in a stock take. The plaintiff thought he was paid $21 an hour, but could not remember earning as much as $878 per week.
59 After that job finished, the plaintiff was desperate to work. He could not get a job for six months. At the time the plaintiff swore his second affidavit in August 2011, he was out of work.
Pain
60 As of May 2010, the plaintiff continued with shoulder pain which affected many aspects of his everyday life, including basic hygiene, such as towelling, shaving and showering. He changed the way he put his seatbelt on. Activities such as vacuuming were done with his left hand. The plaintiff was able to carry light weights but had limited use of his right hand.
61 Previously the plaintiff enjoyed social golf on a regular basis at least once a month, but he was no longer able to play. He also enjoyed fishing, but was now unable to cast the rod and did not fish at all. He used to enjoy swimming at the beach but was no longer able to do so because of shoulder pain.
62 As of May 2010, the plaintiff continued with right shoulder pain, which was always present even as a low background pain. In winter, the pain was persistently stronger and he was constantly aware of it. Even activities such as yawning could cause an increase in pain, as did any activity involving his right arm or any repetitive activity.
63 On occasions, the plaintiff felt the muscles at the back of his neck and near his right underarm freeze up.
64 The plaintiff then continued to be depressed, frustrated and worried about the future, and the lack of permanent employment then frightened him. He was often tearful and his confidence was down. His sleep was disturbed because of pain and he believed that affected his psychological wellbeing. If he slept on his right side, he was woken by pain.
65 The plaintiff then continued to take Panadol on an “as needs” basis and reasonably regularly. He stopped taking Panadeine Forte despite the extreme pain he had from time to time because he was worried about the long term effects of using such a powerful analgesic.
66 The plaintiff, at that stage, had been informed by his doctor that there was little more that could be done for him. He had not seen Dr Walker for twelve months, and no longer attended Dr Soo for shoulder treatment. He had not seen Mr Pullen since review shortly after the operation. Physiotherapy ceased in December 2006 but the plaintiff continued with the home based exercise program.
67 In his second affidavit sworn in August 2011, the plaintiff confirmed he continued to suffer the main effects and symptoms described in his earlier affidavit. He always had some pain in his right shoulder, particularly over the top, which varied in intensity, worse with active use of his arm. He had difficulty reaching above head height or behind his back with his right arm, and avoided those activities because of pain.
68 When the plaintiff yawned or sneezed, he had a sharp pain at the back of his right shoulder and occasionally on his mid back towards the right side under his right arm. Sometimes that pain extended to the right side of his neck. The pain was worse in cold weather.
69 The plaintiff’s shoulder clicked and grinded with most movements. Sometimes even trivial movements such as picking up a cup of coffee could provoke a sharp pain and sense of weakness. As well as the pain worsening with movement, it could also worsen if he sat still for too long, such as when watching television.
70 The plaintiff continued to be restricted in personal hygiene and household chores. Because of his shoulder, he had not attempted to play golf or go fishing. He still slept poorly because of pain and could not lie on his right side for long without the pain increasing significantly, and the pain still woke him in bed if he rolled on his right side.
71 Although he had not taken antidepressant medication for some time, the plaintiff continued to be depressed and worried about the future and still had episodes of tearfulness when he thought about his bleak situation. When he was working, the situation was better, but it was much more pressing at that stage when out of work again.
72 In cross examination, the plaintiff confirmed that his mental condition had improved since swearing his first affidavit when he was out of work. He now did not get depressed and work gave him a sense of living. He saw a psychiatrist once after the incident and he no longer took any anti-depressant medication, but did so for a period of time when out of work.
73 As of August 2011, the plaintiff had returned to regular treatment with Dr Soo as the Panadol was not relieving his pain. He was seeing Dr Soo monthly for reviews and prescriptions.
74 Although the plaintiff had constant right shoulder pain, the pain was worse at the end of the working day because he had been forced to use his arm at work.
75 In 2010, Dr Soo prescribed Panadol Osteo which the plaintiff took twice a day, once before and once after work. Although it helped during the warmer weather, by winter it was not relieving the pain sufficiently, and the plaintiff was struggling at night after work.
76 In winter 2011, Dr Soo prescribed Tramal, which the plaintiff understood to be a more powerful painkiller. He took it before bed to improve his chances of a better night’s sleep and he continued to rub Dencorub around his shoulder area before and after work.
77 In his most recent affidavit sworn in October 2012, the plaintiff deposed he continues with constant pain in his right shoulder which varies in intensity with different activity. He also seems to have more pain in the winter. Use of his right arm almost always causes increase in pain, particularly if it involves raising his arm to or above shoulder height. However, his pain can increase if he keeps his arm still for too long, and swinging it in a normal manner while walking can also result in increased pain.
78 The plaintiff has difficulty reaching up with his right arm, particularly above shoulder height. He still gets a clicking and grinding sound when he moves his shoulder into certain uncomfortable positions. He tends to favour his right arm for activities which are difficult, such as reaching above shoulder height, and he still has trouble reaching behind his back with his right arm.
79 The plaintiff continues to have difficulties with everyday activities such as shaving, brushing his hair or brushing his teeth. He tends to use his left hand to vacuum or sweep, because even light repetitive actions with the right hand usually result in an increase in pain. He leaves any heavy domestic chores to his wife. His son used to do the gardening but the plaintiff now pays a local pensioner to mow the lawn, and once he also cut the hedges for the plaintiff.
80 Before the incident, the plaintiff loved golfing and fishing but now he cannot swing or cast without increasing his pain.
81 His sleep is still troubled by pain, particularly if he rolls onto his right side when asleep; it causes him to wake up.
82 In cross examination, the plaintiff confirmed he does some babysitting and enjoys his grandchildren, who live locally. He has a normal social life and does cooking and plays cards. He confirmed he could do the tasks that he described to Dr Young.
83 The plaintiff has an X‑Trail, which he purchased cheaply from his son-in-law. The plaintiff does not go on four-wheel drive trips as such, just going to Echuca with his wife and sometimes friends.
84 The plaintiff enjoyed golf as a social player, in the past playing with his friends two to three times a month. The plaintiff’s friends then started to go their own way, but his son still would like to play. The plaintiff still plays golf with his son about once a month and sometimes they go to a driving range.
85 The plaintiff used to fish off the pier at Mordialloc, Sandringham and Mt Martha, but he has not tried since the incident because he knows that it would hurt his shoulder casting.
86 If driving for any distance, the plaintiff puts his right hand on the hand rest.
87 Since the plaintiff swore his second affidavit, he has become worried about taking Tramal every night but he still takes it when the pain is bad. This means he has to put up with more pain. However, he has to take some medication because of pain at night. He takes Panamax three or four times a week and he also rubs Rapid Gel into his shoulder most nights before bed.
88 In cross examination, the plaintiff described taking medication for his heart condition. He is always concerned about his heart as there is a family history of heart problems but there is no problem on a day-to-day basis. The plaintiff is all right and does not get any more tired than normal people.
89 The plaintiff confirmed he had not seen Dr Walker or Dr Soo for some time. When he went back to work, he did not see them. He did not think he had seen Mr Pullen since shortly after the operation.
90 The plaintiff confirmed he still has pain and crepitus in his shoulder.
91 Mr Pullen told him either to put up with the pain or have a full reconstruction. He told the plaintiff he was too young for that procedure and there was no guarantee it would last for five or ten years. In these circumstances, the plaintiff is putting up with the pain.
92 The plaintiff has completed a six-week security course. Through a friend, he obtained work as a security guard on the Ramsay Street Neighbours’ set (“the court”). It is a twenty-four hour security operation. The plaintiff is very lucky to have this type of work as it is very light and does not require any heavy work or repetitive use of his right arm or shoulder.
93 The plaintiff’s main duty is to screen who comes and goes in the court and to guide tourists away from walking onto private property. When the court is used for filming, the plaintiff has to close the road using plastic reflective signs. He is able to take rest breaks often.
94 The plaintiff started this job in January this year on an ‘on call’ basis with irregular hours. He does not know his shift arrangements until the Friday before the following week. For some time, he was not rostered on Wednesdays and Thursdays but now it is more common that he is not rostered on Tuesdays.
95 Lately the plaintiff has been getting work on a more regular basis, with the hours ranging from thirty to thirty eight a week, but he has also worked in excess of forty hours on about half a dozen occasions this financial year. He is normally paid $21.50 an hour and does not receive any annual leave or sick pay. There is normally a higher rate for Saturday and Sunday. In the last financial year, he earned $19,661 gross, and so far this financial year, he has earned $12,233.50 gross.
96 Although he could not comment on the wage figures put to him, the plaintiff agreed with a summary of earnings set out in a letter from his current employer dated 19 October 2012, which set out that he worked twenty two weeks from 18 January to 30 June 2012 and fifteen weeks from 1 July 2012 to 19 October 2012.
97 The plaintiff was cross examined about his current job. He commenced work on 18 January this year, having to undergo an induction course. He thought he may have actually started work on 6 February. He was paid during the course, but was not sure whether his full wages started from 6 February.
98 The plaintiff described how he sits outside the garage at one of the houses in the court. It is his job to make sure the tourist buses do not enter private property. The plaintiff tells tourists who lives in which house. His role is similar to one of customer service. He registers cars and monitors individuals who travel in and out of the court.
99 Sometimes the plaintiff has to block off the court for filming and he has to set up the barriers, which are just little triangles of very light plastic. The plaintiff loves his job speaking to tourists, and gets plenty of laughs out of it. He also has breakfast and lunch with the stars of the program.
100 The plaintiff only works dayshift. On a Friday, he gets the roster for the next week and could have a Monday or Tuesday off, but he normally works thirty eight hours unless he is given some further work last minute. If such a request was made, there would be no problem with him working an extra hour or two a day and he has worked up to forty six hours at the court in a week.
101 The plaintiff has sometimes worked thirty eight hours, sometimes thirty, twenty eight and sometimes forty hours a week; it just depends. There has been a time when he worked a maximum of twelve hours in one shift.
102 The plaintiff would work extra hours if offered them because he is scared of losing his job. He agreed the job did not require any heavy work or repetitive use of his right arm or shoulder and it is the ideal job for him. He has not had to confront anyone at the court. The job does not involve a lot of walking, but he does walk at work for exercise.
103 The plaintiff thought he regularly worked thirty eight hours a week, but he has also worked in excess of forty hours about half a dozen times this financial year. Initially, he was on call, but his hours seemed to be set now so that is why he deposed that lately work had been more regular.
104 It was suggested to the plaintiff that in the first six months he had worked forty one and a half hours on average. He did not think he worked forty hours a week, but agreed sometimes he worked in excess of forty hours. It was not like he worked every week for forty one to forty six hours. His normal hours are thirty eight per week and, if he gets last minute work, he works back.
105 If he was given more work on a regular basis, the plaintiff did not think he could do it as he needed a break and he presently got one day’s break. If he was asked to do a twelve-hour shift, he might have the next day off. He works over the seven days and normally gets two days off a week. He always works weekends. He could get tired if he worked every day. He had worked up to forty six hours because he did not want to lose his job and would not be able to find another one.
106 At work, the plaintiff has a lot of time to rest his shoulder and has not had any time off work because of pain. There has been no suggestion that his job is at any risk and everyone at the court respects and likes him. He could see himself doing that job for the next five years.
Vocational Evidence
107 Ms Katrine Green provided a report of 30 September 2012 in which she noted the plaintiff presented as a very motivated and driven man, not pain or injury focussed.
108 Ms Green provided an analysis of jobs for which the plaintiff could be considered; namely, FDA, security officer, guard, courier driver, delivery driver, electronic engineering technician, hand packer and enquiry information clerk and railway guide.
109 Ms Green concluded, due to the plaintiff’s right shoulder injury and his current physical capacity, he was unable to perform the inherent duties of his previous occupation or other suitable employment within the foreseeable future.
110 Kaye Angel of Flexi Personnel carried out an employment assessment of the plaintiff in August 2012 and also provided an earnings report dated 25 October 2012.
111 Ms Angel set out that in addition to the ordinary hourly rate and penalty rates payable for shift, weekend and public holiday work payable to full time employees, casual employees will be paid a loading of twenty five per cent of the ordinary hourly rate for the classification in which they are employed.
112 Lander & Rogers wrote to Maurice Blackburn on 25 August 2011 and advised that the incremental increases of hourly rate for worker at FDA were as follows:
§ as at 5 May 2006 - $14.87 per hour
§ as at 1 July 2006 - $15.59 per hour
§ as at 1 July 2007 - $16.49 per hour
§ as at 1 July 2008 - $16.99 per hour.
The Plaintiff’s Income
Financial Year Ending Gross Amount 2002 $47,691 2003 $55,965 2004 $56,506 2005 $58,639 2006 $64,313 2007 $41,156 2008 $43,153 2009 $38,704 2010 $40,972 2011 $39,948 2012 $23,982
Treating Doctors
113 Dr Soo reported on 6 October 2007, 16 July 2011 and 30 June 2012.
114 The plaintiff first consulted him about his right shoulder injury on 29 May 2006, at which time Dr Soo advised he would not be accepting the plaintiff as a new WorkCover patient.
115 Examination then showed restriction of abduction and flexion because of pain, and analgesia was prescribed.
116 The plaintiff saw Dr Soo again on 31 October 2006 when he provided him with Mr Pullen’s medical report. The plaintiff then reported constant right shoulder pain and that he needed to take analgesics. He said he had difficulty putting his right hand to touch his back. The plaintiff asked Dr Soo to refer him to another orthopaedic surgeon for an opinion, and he was referred to Mr Evans.
117 When seen on 18 July 2007, the plaintiff said he had been given a new job to arrange funerals. He found that job stressful and was not used to paperwork and could not sleep at night and he woke up thinking about the job. He also reported a tightness in his chest at times. Endep was prescribed and the plaintiff was given two weeks’ sick leave.
118 In the short report of 16 July 2011, Dr Soo advised that the plaintiff complained of persistent right shoulder pain, especially during cold weather, starting from the front of his shoulder, radiating to the back, and to his right ancillary region. He had difficulty sleeping on his right side because of pain and stiffness. There was restriction of abduction and flexion and also extension.
119 The plaintiff had been prescribed Panadol Osteo and Tramadol, the latter which he advised helped alleviate his pain.
120 In his last report of June 2012, Dr Soo advised that the plaintiff continues to complain of a painful right shoulder restricting his ability to lift weights or use his right shoulder freely or to stretch forward. Sometimes the pain in his right shoulder catches the plaintiff when he yawns and at times he needs to take analgesics for pain relief.
121 In March 2012, Dr Soo referred the plaintiff to Mr Evans, an orthopaedic surgeon, who had seen the plaintiff previously.
122 Dr Soo noted Mr Evans thought the plaintiff had osteoarthritis of his right shoulder which caused him to have a limited range of movement. As a result, the plaintiff had pain around the right shoulder blade and paraspinal muscles, as the latter had been overused to compensate for the stiffness in his right shoulder.
123 Mr Evans thought the plaintiff at some stage in the future may need a shoulder replacement if and when the arthritis got worse.
124 Dr Soo reported that the plaintiff is currently taking analgesics for pain and had been referred to a physiotherapist, who treated him with strapping of his right shoulder and advised him to engage in a shoulder strengthening exercise program. Dr Soo advised that if the plaintiff’s shoulder continued to deteriorate, he would again be reviewed by Mr Evans.
125 Mr Pullen, orthopaedic surgeon, wrote to Dr Arkell in June 2006 thanking him for referring the plaintiff, who presented after the incident in which he experienced a sudden onset of right shoulder pain.
126 Following examination, Mr Pullen advised that the plaintiff had good musculature of the right shoulder and there was no evidence of wasting. The plaintiff had full range of motion but some pain when he lifted his arm above shoulder height. He was not tender to palpitation and not tender in the long head of the biceps or AC joint. He had positive impingement signs and no weakness of his rotator cuff muscles.
127 Mr Pullen thought the plaintiff had sustained an injury to his rotator cuff rather than problems with a cyst. He thought the examination findings were certainly more consistent with this and he arranged for an MRI scan.
128 On review in July 2006, the MRI scan showed quite extensive damage to the right shoulder. The plaintiff had a macerated superior labrum with a paralabral cyst and SLAP tear. The plaintiff had partial thickness tearing of the supraspinatus on the bursal side and there was a question whether he may have a biceps tear in the long head.
129 The plaintiff advised Mr Pullen his symptoms had not improved, and Mr Pullen then thought, given the extensive nature of the plaintiff’s injury, it was worth considering a right shoulder arthroscopy and decompression, along with SLAP repair or rotator cuff repair. He advised he was seeking permission from the Victorian WorkCover Authority to carry out that procedure.
130 A right shoulder arthroscopic subacromial decompression and bursectomy was carried out in August 2006. Mr Pullen reported, at operation significant arthritis was seen in the glenohumeral joint with complete cartilage tear on the glenoid surface over the majority of the surface. There was significant chondral damage on the humeral side to Grade 2-3. There was a SLAP lesion, along with marked tearing and degeneration of the labrum, and that was debrided.
131 Mr Pullen reported, given the state of the joint, a SLAP repair was not performed. In the subacromial space, there was significant bursitis and a bursectomy was performed and the paralabral cyst was drained.
132 Mr Pullen issued the plaintiff with a WorkCover certificate for two weeks and advised if his symptoms persisted, he would need to consider a total shoulder replacement given the severe cartilage loss in the glenohumeral joint. Mr Pullen then thought it was unlikely any lesser procedure would be helpful.
133 Following review in August 2006, Mr Pullen noted the wounds were healing from the surgery and he encouraged the plaintiff to start mobilising. He told the plaintiff he had considerable damage, particularly on the glenoid surface of the humerus, and thought eventually he was going to come to requiring joint replacement surgery.
134 In September 2006, Mr Pullen advised that he would be happy for the plaintiff to return to modified duties after 27 September 2006 if he felt ready. He suggested no lifting greater than two kilograms, no work above shoulder height and no repetitive work with his affected arm. He suggested the plaintiff return to work on reduced hours about four hours a day, three to five days a week, depending on how he was going.
135 Two months after surgery, Mr Pullen thought there was nothing further to be done and suggested the plaintiff continue with physiotherapy. He thought if pain persisted, the only thing left to do was consider a shoulder joint replacement. At that stage, the plaintiff’s range of motion had improved but he continued to have shoulder pain.
136 On what appears to be the last examination in January 2007, the plaintiff had had some improvement, but that was incomplete and he still had some pain, crepitus and a catching sensation, which Mr Pullen believed was related to his significant degenerative arthritis.
137 Mr Pullen confirmed the only option was further joint replacement but he would like to avoid that as long as possible given the plaintiff’s young age. He thought a conservative course was best.
138 Mr Evans, shoulder and knee surgeon, reported on 5 November 2007 and 29 June 2012.
139 Thanking Dr Soo for the referral of the plaintiff in November 2006, Mr Evans noted the plaintiff suffered shoulder injury in the incident. He also noted the fact that the plaintiff still had significant stiffness and a shoulder ache after surgery.
140 On examination, Mr Evans reported there was a diminished range of motion in all directions. Rotator cuff testing demonstrated no evidence of weakness but the plaintiff’s lack of internal rotation made isolated supraspinatus testing difficult.
141 At that stage, Mr Evans thought the plaintiff had arthritis affecting his right shoulder and he was making a routine recovery following the surgery. He told the plaintiff it could take up to a year to get full benefit from the operation but he was likely to be left with a degree of discomfort and some loss of motion. Mr Evans also noted, occasionally if motion is not improved, then a hydrodilatation is helpful but in the presence of arthritis the outcome is unpredictable.
142 Given the degree of arthritis evidenced on operative photos, Mr Evans then suspected in the future a shoulder replacement may be required but that procedure should be delayed as long as possible given the plaintiff’s relatively young age.
143 The plaintiff returned to Mr Evans on 14 March 2012 because of ongoing shoulder symptoms. The plaintiff’s predominant symptom was of pain around the shoulder blade and in the region of the paraspinal muscles. The plaintiff reported the shoulder pain itself was not too severe but the surrounding muscles ached and were causing him trouble and his shoulder was quite stiff.
144 Mr Evans noted that the plaintiff had some pain in his shoulder joint as well as limited motion but was also experiencing compensatory ache in the paraspinal and periscapular muscles as a result of overuse to compensate for his shoulder.
145 Mr Evans explained to the plaintiff that he did not think there was any solution to his problem and that at some stage in the future, he may require further treatment, including a shoulder replacement. The plaintiff informed him he was managing reasonably well with the exercise program, as well as using intermittent analgesics when his pain worsened. Mr Evans recommended the plaintiff continue with non operative treatment and made no further appointment.
146 Mr Evans thought the plaintiff’s workplace capacity would be limited by pain and lack of motion in his shoulder and recommended he avoid any work involving overhead activity or lifting and confines himself to administrative type duties.
147 Ms Kalana Peiris, physiotherapist, saw the plaintiff for three sessions from 9 May to 16 May 2006 and after surgery, until a final session in December 2006.
148 Over that time, the plaintiff continued to suffer from shoulder pain which was unresponsive to physiotherapy. On discharge, he was still suffering from chronic shoulder pain and restriction, issues which the physiotherapist thought would prevent him from doing any lifting with his right arm in the future. She also noted, given the presence of arthritis, it was highly likely the plaintiff would continue to suffer from ongoing right shoulder pain.
149 Dr Arkell reported on 16 April 2008 that the plaintiff had been seen sporadically since 2000, having been last seen on 16 February 2007.
150 Dr Arkell noted the plaintiff consulted on 9 May 2006 when he complained of the incident injury. He was reviewed on 22 May 2006, reporting ongoing discomfort in the posterior aspect of the right shoulder. He continued to complain of pain in the right shoulder, particularly at night when he slept on his right side.
151 On review in September 2006, the plaintiff reported ongoing pain in the shoulder but manageable with Panadeine Forte. When Dr Arkell last saw the plaintiff in February 2007, he remained on clerical duties since the surgery but there were some issues with his perception of his computer skills. He was continuing his home exercises.
152 Dr Arkell diagnosed an acute strain injury to the right shoulder with pre-existing bony spurring of the glenoid posteriorly. He thought the injuries were consistent with the mechanism of injury. He believed the plaintiff should remain on non lifting duties indefinitely and anticipated his pain would reduce over a month. He thought a further orthopaedic opinion was appropriate.
153 Dr Christine Walker reported in October 2008 that the plaintiff presented on 25 October 2007 complaining of months of feeling anxious at work associated with chest tightness, tearfulness and depression. She noted he was working in a new role requiring computer skills beyond his capacity and meeting with bereaved families which also made him uncomfortable.
154 In Dr Walker’s view, the plaintiff’s symptoms were likely a consequence of his new and changed role at work. She reported the plaintiff was counselled and commenced on anti-depressants but despite a good response to these in his mood and anxiety, he felt unable to return to his previous workplace and was encouraged to find employment elsewhere, accepting a redundancy package from the defendant in April that year.
155 The plaintiff last saw Dr Walker on 25 July 2008, at which time he was anticipating commencing work the following week and he seemed optimistic in that regard.
156 Dr Walker believed the plaintiff was not fit to return to work with his previous employer and was unfit to do any job requiring heavy lifting. She was unable to comment on the plaintiff’s long term prognosis given she had not seen him for three months.
Medico-Legal Examinations
157 Dr Horsley, occupational physician, examined the plaintiff on 11 May 2011. The plaintiff told her of ongoing discomfort in his shoulder varying from five to six to eight out of ten and at rest, two to three out of ten with always discomfort. He told her of problems sleeping on his right side.
158 On examination, there was no fear avoidance behaviour. There were some trigger points into the right scapular. Peripheral nervous system was normal with attention to light touch, tone, reflexes, vibration and temperature sensation.
159 The plaintiff had twenty kilograms force on the right compared to thirty two on the left, which Dr Horsley noted was a significant reduction in power on the right side. There was a normal range of left shoulder motion. On the right, there was a significant reduction in range.
160 The shoulder tests were negative for supraspinatus subscapularis teres minor and the AC. Apley’s scratch was grossly restricted superiorly and even more so posteriorly.
161 Dr Horsley noted the 2006 ultrasound and MRI scan of the right shoulder. She thought the plaintiff had MRI and arthroscopic evidence of significant arthritis of the glenohumeral joint of the right shoulder. She noted at surgery, the plaintiff had complete cartilage loss of the majority of the glenoid surface and significant chondral damage on the humeral side. There was evidence of a SLAP lesion, along with tearing and degeneration of the labrum. There was also significant subacromial bursitis and paralabral cyst. She noted the plaintiff’s rotator cuff was largely intact.
162 In her view, the plaintiff had an ongoing and significant disability and ultimately would come to a right shoulder replacement.
163 Given the length of time since the injury and the ongoing nature of his symptoms, Dr Horsley believed they were likely to persist. She thought the plaintiff was appropriately self managing with a home exercise program and commendably returned to work that was suitable. She thought he would ultimately require further surgery as his symptoms increased, with either a further arthroscopy and debridement, or ultimately a replacement.
164 Dr Horsley believed work had significantly aggravated the underlying pre existing degenerative issues related to the plaintiff’s shoulder and work was therefore a significant contributing factor.
165 Dr Horsley suggested the following restrictions: avoidance of repetitive overreaching; repetitive pushing and pulling; above shoulder activities; forceful activities involving the right shoulder and static postures. She thought the plaintiff had a sitting tolerance of about twenty to thirty minutes, a normal dynamic standing tolerance and walking tolerance, a normal static tolerance of ten minutes and a driving tolerance of about an hour if he could rest his arm.
166 Dr Horsley considered the plaintiff was permanently unfit for his previous work. She noted the critical physical demands of that role were beyond his capacity. She thought he was doing suitable duties at DGTEC and it was commendable he had sought alternative work and had been successful in finding it.
167 Dr Horsley considered the plaintiff had aggravated the significant underlying degenerative arthritis in the glenohumeral joint. She thought the restrictions were permanent. The prognosis, in her view, was for an acceleration of the degenerative process as time passed. She thought the plaintiff would ultimately come to a right shoulder arthroplasty.
168 In her view, there was ongoing and significant disability in this man with considerable stoicism who had commendably returned to full time alternative work on a casual basis within the recommended restrictions.
169 Mr Michael Fogarty, orthopaedic surgeon, saw the plaintiff initially in April 2011, and more recently on 9 July 2012.
170 On initial examination, the plaintiff told Mr Fogarty he had pain in his right shoulder, especially with movement.
171 On examination, there was some wasting of the supraspinatus muscle of the right shoulder. There was limited range of movement. There was consistent deep crepitus felt on movements. Left shoulder movement was full and apparently pain free.
172 Mr Fogarty saw the May 2006 ultrasound and the report of the June 2006 MRI scan, and agreed with the reports thereof. He also noted the operation report.
173 Mr Fogarty diagnosed soft tissue injury to the right shoulder with aggravation of glenohumeral osteoarthritis, degenerative tear of the superior labrum, partial tear of the supraspinatus and subsequent subacromial bursitis treated by surgery. He noted the plaintiff had limited range of movement and associated right shoulder pain restricting the use of his right arm, particularly for any reaching above his head or any heavy lifting.
174 Mr Fogarty thought restrictions were permanent and the plaintiff was not fit for unrestricted work. He then thought the plaintiff could do work not involving any heavy use of the right arm or repetitive movement, for thirty to thirty five hours a week.
175 The prognosis at that early stage was fair to poor and it was likely, in Mr Fogarty’s view, that symptoms would remain and probably increase. Mr Fogarty noted the view of two other shoulder surgeons that no further procedure was likely to help the plaintiff and that the only logical treatment, should symptoms worsen in the future, a situation Mr Fogarty thought likely, would be right total replacement arthroplasty, and he thought the likelihood of that becoming necessary was in the next five to seven years and was high.
176 At the time of the most recent examination, the plaintiff reported there had not been any significant changes; however, he said he had been given the stronger painkiller, Tramadol.
177 On examination, there was some persistent wasting of the supraspinatus muscle at the right shoulder. There remained decreased range of motion in the right shoulder. The range of movement was slightly different from the previous recording but still indicated significant limitation of range of motion largely because of much decreased range of motion in the actual glenohumeral joint. There was some grating accompanying the limited range of motion. There was full range of motion in the left shoulder with no pain.
178 Mr Fogarty confirmed his earlier diagnosis and the considerable restriction on account of pain and diminished range of movement. He thought those restrictions should be considered as permanent and the plaintiff was not fit for unrestricted work. He confirmed his earlier view as to necessary work restrictions and the prognosis for the condition remaining fair to poor.
179 Mr Fogarty noted symptoms remained and signs had not varied significantly since the last examination. He thought treatment should continue on the same basis but it was likely some time in the future, say between five to ten years, that the plaintiff would come to right shoulder replacement arthroplasty.
180 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in February 2011 on behalf of Lander & Rogers, solicitors.
181 The plaintiff told him right shoulder pain was still terrible with pain over the top of the shoulder indicating the supra spinous region of the scapula. He was not able to lift his arm into the overhead position and he could not reach behind his back.
182 Mr Simm noted the plaintiff presented in a straightforward and co-operative manner. There was no wasting around the right shoulder. Movements of the right shoulder were markedly restricted and painful. The plaintiff struggled to reach the back of his head and could not reach behind his back. Movements were associated with audible and palpable crepitation. The painful restriction of movement precluded meaningful evaluation of rotator cuff function. There was reasonable power of abduction against resistance and also reasonable power of external rotation.
183 Mr Simm noted those findings indicated the rotator cuff was probably intact. Movements of the cervical spine were only mildly restricted and were not associated with the complaint of neck pain.
184 Mr Simm had available the report of the 2006 MRI scan.
185 Mr Simm thought the plaintiff had persisting right shoulder dysfunction consequent upon unresolved aggravation of osteoarthritis of the glenohumeral joint and sequelae of arthroscopic surgery.
186 As a result of the significant strain in the incident, Mr Simm considered the plaintiff experienced right shoulder girdle and shoulder pain and was subsequently found to have moderately advanced osteoarthritis of the glenohumeral joint with loss of the articular cartilage on the glenoid.
187 Mr Simm thought the most likely diagnosis for the plaintiff’s acute pain and the protracted pain which had followed was unresolved aggravation of osteoarthritis of the glenohumeral joint. Mr Simm noted the plaintiff’s surgery was ineffective and had not resulted in any improvement. He thought that the plaintiff would probably require a right shoulder replacement at sometime in the future.
188 Mr Simm considered the plaintiff’s condition had stabilised and the symptoms were not deteriorating significantly but he would expect a gradual deterioration with the passage of time.
189 In Mr Simm’s view, the plaintiff’s work capacity had been limited by the right shoulder injury to light use of his dominant right upper limb close to his body and below shoulder height. He thought that the injury had permanently incapacitated the plaintiff for pre injury employment or similarly physically demanding employment. He considered the partial incapacity for work would persist indefinitely.
190 Mr Simm thought treatment should continue along current conservative lines with self regulation of activities, analgesic and possibly anti-inflammatory medication. He anticipated that at some time in the future the plaintiff may require a right total shoulder replacement.
191 The plaintiff was seen by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 14 June 2012.
192 The plaintiff then reported persistent right shoulder pain, varying from day to day, and also pain above the shoulder in the trapezius area.
193 On examination, the plaintiff had good general mobility. There was wasting of his right shoulder girdle mildly. He was tender over the acromioclavicular joint and over the back of the shoulder. There was limited right shoulder movement, and neck movements were full, as were left shoulder movements.
194 Dr Thomas noted the MRI scan of the right shoulder of June 2006 and the ultrasound of May 2006.
195 Dr Thomas concluded the plaintiff sustained an injury to his shoulder, namely an aggravation of pre-existing glenohumeral osteoarthritis. He thought the plaintiff also had a degenerative tear of the superior labrum and had subacromial bursitis and acromioclavicular degenerative change.
196 In Dr Thomas’ view, the nature of the plaintiff’s work duties lifting and transporting deceased over many years had contributed to the degenerative change and the incident led to a dramatic worsening, therefore an aggravation of the underlying problem. He thought work materially contributed to the plaintiff’s current condition.
197 Given the plaintiff’s restrictions, Dr Thomas thought his shoulder needed to be kept reasonably close to his body and forward flexion and forward and side abduction beyond thirty degrees would be problematic for him.
198 Dr Thomas considered the plaintiff should avoid anything that required him to lift under load beyond that, and also avoid lifting even light objects if possible, as that had advanced the underlying degenerative problems. He thought the plaintiff could perform occasional movements beyond that of light loads but frequent and repetitive movements of his shoulder beyond the small excursion would be problematic.
199 Dr Thomas did not think the plaintiff was able to return to pre injury work as a funeral director and it was likely his problems would worsen as the degenerative change worsened. He considered the plaintiff permanently unfit to perform unrestricted work and noted it was appropriate he had found work which he could do in a casual capacity but working five days a week doing light process work, fixing up pieces of equipment. At its worst, he thought the plaintiff’s shoulder may require joint replacement and further medical treatment would be determined by the progress of the degenerative change.
Investigations
200 An ultrasound of the right shoulder was organised by Dr Arkell on 18 May 2006. It was reported there was peri articular bony spurring on the glenoid side of the glenohumeral joint posteriorly, and adjacent to that there was an elongated cystic structure most likely representing a labral cyst measuring nearly two centimetres in gross diameter. It was noted it had an elongated tubular shape and could be relevant with respect to the plaintiff’s symptoms, and a further investigation with an MRI scan was indicated. It was noted that could cause problems with the infra scapular nerve and innovation of the external rotators.
201 Mr Pullen organised an MRI scan of the plaintiff’s right shoulder on 20 June 2006.
202 It was reported there was joint effusion, degenerative chondral thinning, macerated superior labrum with paralabral cyst in keeping with previous SLAP tear, intra articular portion of biceps poorly visualised, “? Intact”, degenerative AC joint and bursal surface, partial tearing of supraspinatus and mild tendinopathy of the subscapularis.
The Defendant’s Evidence
203 The plaintiff signed a Claim for Compensation on 29 May 2006 setting out injury to his right shoulder sustained in the incident. There was an employer’s claim report of 31 May 2007.
Investigations
204 An MRI scan of the lumbar spine was organised by Dr Soo on 26 July 2012. It was reported that there were multilevel spondylitic changes and facet arthropathy producing canal stenosis maximally represented at L4-5. At L4-5, there was a marked broad based central disc protrusion appreciated, combining with facet joint degenerative hypertrophy and ligamentum flavum thickening to produce high central canal recess and foraminal stenosis. It was noted the L4 nerve roots were mildly compressed bilaterally within their foramina.
Treaters
205 On 14 March 2012, Mr Evans wrote to Dr Soo, advising it was several years since he had last seen the plaintiff about his right shoulder. He noted the plaintiff had arthritis and had limited range of motion in all directions as a result of it and was getting problems around the shoulder blade and paraspinal muscles. He noted the shoulder itself did not cause the plaintiff that much pain but the stiffness was resulting in ache around the shoulder blade.
206 Mr Evans explained to the plaintiff he did not think there was an easy solution to his problem but that at some stage in the future, he may end up needing a shoulder replacement if and when the arthritis got bad enough. He noted at that point, however, the plaintiff was managing reasonably well with the exercise program he was undertaking and intermittent analgesics when the pain was bad. He suggested the plaintiff continue with that form of management but that if the shoulder got to the point where he was no longer coping, he should come back and see him.
207 Professor Drago, neurologist, wrote to Dr Soo on 5 September 2012, thanking him for the referral of the plaintiff for a neurological opinion. He suspected the plaintiff had a diabetic peripheral neuropathy, mainly of axonal type, affecting sensory nerves. He looked at imaging and agreed that there was some canal stenosis at L4-5 but doubted that it explained the clinical picture and suspected the plaintiff had a problem of the peripheral nerves rather than a syndrome of canal stenosis.
208 Professor Drago wrote to Dr Soo in October 2012, having reviewed the plaintiff that day. Professor Drago advised that the bottom line was that the plaintiff had electrophysiological evidence of a predominant demyelinating sensory motor peripheral neuropathy, of which diabetes was the most likely cause. There was some evidence of lumbosacral radiculopathies, but that was not really relevant to the picture, as the results were suggestive of chronic inactive disease.
Medico-Legal Examinations
209 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in February 2009.
210 The plaintiff told him that the operation after the incident was of no benefit and he had been in constant pain ever since. He tried to return to light duties which involved co-ordination and going to the homes of bereaved families, but he found the work very stressful and started to get a tight feeling in his chest and had to have some stents inserted.
211 At the time of the examination with Mr Shannon, the plaintiff was employed full time casual, testing set top boxes.
212 On examination, the plaintiff’s shoulder pain was mainly at the front of his shoulder but there was also some pain in the armpit.
213 On physical examination, the plaintiff had moderate restriction of movement of the shoulder, particularly abduction, flexion and internal rotation. There was no definite impingement. Mr Shannon noted an ultrasound showed an intact rotator cuff and biceps tendon paralabral cyst. He also noted the MRI scan of June 2006 and the treating surgeon’s operation report.
214 Mr Shannon concluded, as a result of the incident, the plaintiff sustained aggravation of pre-existing degenerative change in the right shoulder with resultant damage to the rotator cuff tendons and impingement. The plaintiff had some improvement after surgery, but had ongoing and genuine restriction of shoulder movement.
215 Mr Shannon thought the plaintiff had not sustained a specific injury to his right arm other than from the shoulder or neck. He thought the impairment had stabilised.
216 Dr David Weissman, psychiatrist, examined the plaintiff on 10 February 2009. In terms of his premorbid personality, the plaintiff described himself as happy go lucky and “everything good” until he hurt his shoulder. The plaintiff told Dr Weissman he had pain in his right shoulder “24/7”.
217 In terms of symptoms, the plaintiff told Dr Weissman his concentration and memory come and go. He could not do much in the way of leisure activities. He socialised less. He sometimes took Endep as required.
218 The plaintiff was then working for DGTEC from 8.00 am until 4.30 pm every day as a casual, non-permanent worker.
219 The plaintiff also told Dr Weissman that he had now developed some left shoulder pain and discomfort.
220 Dr Weissman noted the plaintiff did not see a psychiatrist or psychologist, nor did he take any regular anti-depressant medication. He told Dr Weissman he felt still cut up and going nowhere. He felt depressed, frustrated and worried.
221 The plaintiff told Dr Weissman there were other jobs he would have been able to do, such as driving families to funerals in coaches, and he became tearful at that stage of the interview.
222 The plaintiff reported his sleep was disturbed due to tossing and turning because of pain and discomfort in his right shoulder.
223 On mental state examination, the plaintiff’s quality of affect was flat, restricted in range, emotionally labile, tearful, depressed, anxious, frustrated and worried. There was no formal thought disorder. Thinking revealed mild, mixed reactive depression and anxiety themes, mild pain focus and pre-occupation and grievances about the way he was treated by his employer. There were no formal abnormalities of perception and his cognition appeared to be intact. His insight and judgment were characterised by lowered self esteem and confidence and some elevated health concerns. Nevertheless, it was noted the plaintiff very much wanted to obtain a permanent job.
224 Dr Weissman thought there was no obvious pre-existing psychiatric condition in this case. He thought, following the incident, the plaintiff had developed mild mixed depression and anxiety consequential to his work related shoulder injury. The plaintiff experienced stress while doing alternative duties on his return to work and then had chest pain and stents inserted.
225 Dr Weissman thought the plaintiff now presented with mild mixed depressive and anxiety symptoms that satisfied a criteria for a Chronic Adjustment Disorder with Mixed Depressed and Anxious Mood, about two thirds of which related to the injury and a third to the experience on return to work.
226 Dr Weissman thought, on psychiatric grounds alone, the plaintiff probably had a full capacity for suitable or alternative duties. He noted the plaintiff had a hardworking nature and had never really been out of work.
227 Dr Weissman thought the plaintiff would probably benefit from seeing a clinical psychologist for supportive therapy and a therapeutic trial of anti-depressant medication from his general practitioner. He considered the plaintiff’s psychiatric prognosis was fair.
228 Dr Dominic Young, specialist occupational physician, examined the plaintiff in October 2011.
229 The plaintiff then advised he still had right shoulder pain and he was taking two to three Tramadol tablets a week, and exercising. He was not currently working. Dr Young had available the 2006 MRI scan.
230 The plaintiff told Dr Young he lived at home with his wife and children and he was not doing his hobbies of golfing and fishing. He was doing a variety of domestic tasks and he could sit, stand and walk unrestricted and had reasonable driving tolerance.
231 On examination, an inspection of the plaintiff’s right shoulder showed deep pigmentation of the skin. There was some crepitus. There was some restriction of movement and power was not unreasonable. There was a normal range of cervical movement.
232 Dr Young thought the plaintiff currently had features of right shoulder glenohumeral arthritis.
233 Dr Young thought, taking into account the current diagnosis, functional capacity and the requirement to participate in an activity based program, the plaintiff had a current capacity for work. However, that was limited. In his view, the plaintiff had the capacity to perform tasks within the following restrictions; namely, avoiding right arm repetitive; above shoulder height tasks; right arm repetitive reaching tasks, firm pushing and pulling with his right arm and lifting more than five kilograms.
234 Dr Young believed that the jobs of station officer, customer service clerk, concierge, ticket seller and instrument technician set out in the rehabilitation report of 20 March 2008 complied with those restrictions. Courier and delivery driver would require assessment to determine whether they complied with lifting restrictions. Personal services care assistant also required assessment to determine whether there would be a requirement to do tasks such as transferring individuals using hoists and personal care tasks as they would be expected to exceed the restrictions.
235 Given the diagnosis and chronicity, Dr Young thought the plaintiff should be doing a range of active physical therapy modalities such as home-based exercise programs, swimming and walking. Dr Young noted that if the plaintiff’s condition was to further deteriorate, then consideration of surgery was required for his right shoulder arthritis.
236 Dr Young considered the plaintiff’s prognosis was not unreasonable and he should be able to maintain a reasonable level of function, which he had done since ceasing work as a funeral director. He thought it likely the plaintiff should be able to successfully re-enter the workforce.
Rehabilitation Documents
237 A JSA Job Seeker plan was completed following an assessment on 17 April 2008.
238 At that stage, the following employment options were suggested as suitable; namely, station officer, customer services clerk, concierge, ticket seller, courier, delivery driver, instrument technician with re-education, personal services care assistant with re-education within functional restrictions.
239 The plaintiff reported he agreed with the options, in particular, the job of instrument technician, but he was yet to centralise on one employment option.
240 In a JSA halfway report completed on 12 June 2008, it was noted reported the plaintiff was keen and motivated to return to suitable employment and that he regularly attended job seeking appointments and had been actively searching for employment and had been a conscientious and motivated job seeker.
241 It was noted the plaintiff had applied for the following positions since commencing the program; namely, tram driver with V/Line, porter at Novotel, station attendant with Connex and a driving position with the medical centre.
242 It was noted IPAR considered the plaintiff a genuine and motivated job seeker.
243 There was a placement report setting out work had been obtained with Adecco with a return to work on 28 July 2008.
244 JSA carried out a vocational assessment report in March 2008 in which the following employment options and wage rates were identified:
Position Average Hourly Income Average Weekly Full-time Income Customer service enquiry clerk $24.70 $940.00 Concierge $19.66 $747.00 Ticket seller $26.05 $990.00 Courier $22.24 $845.00 Delivery driver $23.70 $900.00 Instrument technician with re-education $29.70 $1,128.00 Personal care attendant $18.45 $701.00
245 IPAR prepared a labour market analysis in September 2012 of various suggested positions:
Proposed Role
Role
Weekly Earnings
Security
$861.74
DGTEC
$864.04
Customer Service Enquiry Clerk
$940.00
$924.00
Ticket Seller
$990.00
$1,050.00
Delivery Driver
$900.00
Instrument Technician
$1,128.00
$874.00
246 The current average weekly full-time income for security guards was $932.00 as at October 2012.
247 Wage records from Adecco set out, for the week of 23 January 2011, the plaintiff worked thirty eight hours and two hours’ time and a half, making a total of $860.02 gross. The base salary for thirty eight hours was $801.80.
248 The defendant sought to rely on comparable wage figures for three other FDAs. An appropriate figure was suggested to be $66,760, the average of the three employees’ earnings for the 2008 financial year.
Comparable Wage Information Financial Year FDA1 Annual FDA2 Annual FDA3 Annual Average Gross Annual Weekly 2005 - - $55,564 - $1,069 2006 - - $63,327 $63,327 $1,218 2007 $64,816 $63,124 $65,496 $64,479 $1,240 2008 $69,928.42 $63,748.39 $66,602 $66,760 $1,284 2009 $65,773.33 $62,675.35 $63,997 $66,149 $1,234
Other Documents
249 Two résumés prepared by the plaintiff set out his key achievements while employed with the Public Transport Corporation between 1972 and 1995. He described his interests as sports, spending time with his family, gardening, reading and cooking, and detailed his roles with the defendant between 27 November 1995 and 11 April 2008.
250 The plaintiff completed a number of in-house courses with the defendant, together with a Certificate III in Information Technology (Software Applications) and a life saving/ first aid qualification.
251 By a document signed by him on 10 April 2008, the plaintiff accepted the offer of cessation of employment from the defendant.
Stress Claim
252 On 2 January 2007, the plaintiff signed an Injury Claim Form claiming stress, depression, anxiety, lack of sleep and not being able to cope with the alternative role provided by the employer after the shoulder injury. It was noted the injury occurred in October 2007. Further, the plaintiff worked forty standard hours each week before being injured. His usual working hours were noted to be 8.00 am to 5.00 pm (on duty) 8.00 am to 10.00 pm. His doctor was then Dr Walker. The Employer Claim Report was dated 3 January 2008.
253 Dr Hee certified the plaintiff unfit for any duties due to anxiety and depression from 7 January 2008 to 25 January 2008. Dr Walker provided a similar certificate for the period 26 January 2008 to 23 February 2008 and also 24 February 2008 to 23 March 2008. She certified the plaintiff fit for restricted duties from 22 April to 19 May 2008 and then unfit for any duties from 20 May to 17 June 2008.
254 In January 2008, the plaintiff was examined by Dr Stephen Stern, psychiatrist, in relation to this stress claim.
255 The plaintiff told him of the incident and difficulties coping on his return to work with the paperwork, families and arrangements. It came to the stage where he was crying every day. On 15 October 2007, when the plaintiff had to deal with a very difficult family, he experienced chest pain and saw his general practitioner, who put him off work.
256 At the time of Dr Stern’s examination, the plaintiff’s complaints were of constant pain and reduced shoulder movement, depression, anxiety, disturbed sleep, reduced memory and concentration. He was taking Endep as an anti-depressant.
257 On examination, the plaintiff had difficulty relaxing and was visibly perspiring. His speech had normal flow and content, although it was anxious, as was his affect.
258 The plaintiff told Dr Stern he could not do anything which involved lifting and he was prepared to do driving work as a funeral director. He was worried about the future and his confidence was low.
259 Dr Stern thought the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, initially related to the incident and then the stress of performing alternative duties for which he was not suited. He noted that coronary heart disease had also contributed to the plaintiff’s anxiety.
260 Dr Stern thought the plaintiff was psychiatrically fit for non stressful employment, such as driving, but not fit for work as a funeral director, consultant or co-ordinator.
261 Dr Stern considered the plaintiff needed continuing psychiatric treatment and anti-depressant medication and his prognosis would be helped by a return to suitable duties.
262 On re-examination in July 2008, the plaintiff had accepted a retrenchment package, had been looking for work and was starting casual packing work the next week.
263 The plaintiff no longer felt stressed, his mood was stable and he was not tearful. His anxiety had resolved and he no longer had tension headaches or chest tightness. He slept normally and had no nightmares. He no longer saw a psychiatrist or took anti-depressant medication.
264 Dr Stern thought the plaintiff’s psychiatric condition had now resolved and there was no evidence of an Adjustment Disorder on history or mental examination. He thought anti-depressant medication was no longer needed.
265 In Dr Stern’s view, the plaintiff was psychiatrically fit for work, including the job options identified in the assessment in April 2008, but not fit for his pre-injury employment because that would probably cause a recurrence of his psychiatric disorder. He considered the plaintiff’s psychiatric prognosis was positive as long as he avoided excessive work stress.
The 1996 Back Condition
266 A number of documents relating to a 1996 back condition were tendered. The plaintiff had physiotherapy treatment at that time from Backs Management after a lifting incident at work.
267 Dr Arkell organised a CT scan of the lumbar spine on 19 January 1996. It was reported there was a congenitally small spinal canal with evidence of significant thecal compression of the L4-5 level due to superimposed disc bulge which was more right sided than left, together with ligamentum flavum hypertrophy. The bony changes as described at L3 were noted to be of uncertain aetiology and may be related to previous trauma, but certainly not the consequence of recent bone injury. A congenital anomaly was also possible.
268 Mr Barry Elliott wrote to Dr Arkell on 7 February 1996 following examination of the plaintiff after he had been involved in a lifting incident at work on 15 January 1996.
269 Mr Elliott advised that examination revealed no significant abnormality in the back and there were no abnormal neurological signs in the lower limbs. He thought there was no indication for surgery or further investigation and that it was most likely the plaintiff had a muscle strain and the pre-existing degenerative changes had not been altered significantly.
Overview
270 It is not disputed the plaintiff suffered injury to his right rotator cuff in the incident on the said date.
271 As his treating surgeon explained, the July 2006 MRI scan showed quite extensive damage to the right shoulder with a macerated superior labrum with a paralabral cyst, a SLAP tear and partial thickness tearing of the supraspinatus on the bursal side.
272 Significant arthritis of the glenohumeral joint was later shown on operation.
273 Liability was accepted for the plaintiff’s weekly payments and loss of earnings claim and also his claim pursuant to s98C in relation to permanent impairment.
Consequences
274 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:
“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.”
275 I found the plaintiff to be a very credible, honest witness who gave his evidence in a straightforward fashion. Counsel for the defendant did not disagree, describing the plaintiff as “a witness of tremendous credit”.
276 There was no surveillance film or any other evidence at odds with the plaintiff’s description of his pain and limitations.
277 Whilst counsel for the defendant did not suggest there were no ongoing effects of the plaintiff’s shoulder injury or that he was pain free, it was submitted, when one considered what the plaintiff had retained in terms of his working capacity and current lifestyle, any consequences of his right shoulder condition were not serious.
278 I accept that since the incident, the plaintiff has suffered constant right shoulder pain involving an ache around the shoulder blade which varies with activity. He gets a clicking, grinding sound on moving his shoulder. Raising his arm, reaching or stretching particularly above shoulder height is a problem for the plaintiff. Problems with restriction of movement have been confirmed on examination.
279 The plaintiff’s right arm and shoulder are weaker than his left with a significant reduction of power and wasting shown at times on testing.
280 Having become worried about the addictive effects of Tramal which he was taking, the plaintiff now takes Panamax three or four times a week to help relieve shoulder pain at night.
281 No further treatment has been indicated in the short term; however, the consensus of the most optimistic medical opinion is that surgery, a shoulder replacement, may be necessary if the plaintiff’s existing arthritis becomes worse.
282 The plaintiff has problems with sleep, in that he wakes up in pain if he rolls onto his right shoulder. This complaint was confirmed by Dr Soo.
283 The plaintiff has difficulties with everyday activities related to personal hygiene such as brushing his teeth and hair, and also shaving.
284 The plaintiff leaves heavy household chores to his wife and his son now does most of the gardening.
285 The plaintiff is no longer able to enjoy social golf to the same extent he previously did and he has not tried to go fishing as he knows casting would be too difficult because of right shoulder pain and restriction.
286 Prior to the incident, the plaintiff had worked as an FDA for ten years. As he conceded, the work was heavy and at times tiring but he coped with that work and intended to work in that role until retirement.
287 I accept that since the incident, the plaintiff no longer has the capacity to engage in work of a physical nature or his pre injury duties which involved lifting, using his right shoulder freely or stretching forward. He was unable to return to his normal duties post incident and spent his later working days with the defendant in a less physical consultant role until he had to resign due to the stress associated with those duties.
288 Since that time, whilst having worked in a number of fields, the plaintiff has not returned to any work which could be described as physical.
289 The consensus of medical opinion is that the plaintiff no longer has the capacity to engage in manual work. Alternative light work with restrictions as to right arm use or administrative duties have been suggested as appropriate for the plaintiff.
290 In my view, the plaintiff’s ongoing significant pain and restriction and his work restrictions are serious consequences that satisfy the statutory test.
291 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
292 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
293 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
294 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
295 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
296 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
297 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
“It must be remembered that under subs (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. …”
See Barwon Spinners Pty Ltd & Ors v Podolak (supra), at paragraph 70.
298 Counsel for the plaintiff made detailed submissions as to how the “without injury” earnings figure should be calculated.
299 Calculations were based on increments to the hourly rate from 5 May 2006 to 1 July 2008.
300 In the year of injury, the plaintiff’s gross earnings were $64,313. His hourly rate at the date of injury was $14.87. The hourly rate as at 1 July 2008 was $16.99. On that basis, counsel for the plaintiff made the following calculation:
16.99
14.87 x 100 = 114.25 per cent
$64,313 x 114.25 per cent = $73,477 ($1,413.02 weekly)
$73,477 x 60 per cent = $44.086 ($847.80 weekly).
301 Counsel for the defendant submitted that the plaintiff’s earnings in 2006 of $64,313 was the most appropriate figure. Sixty per cent thereof is $38,587 or $742 per week.
302 Further, he suggested using wage rates of what were said to be comparable employees. An average of their income in 2008 was $66,760.
303 I accept the submission by counsel for the defendant that it could not be said that the plaintiff’s income would increase on a steady basis by the EBA consistently every year, as his counsel argued.
304 Looking at the plaintiff’s earnings for three years prior to injury, starting in 2003, increases were initially small, with a $500 increase in 2004, $2,000 in 2005 and a large increase of nearly $6,000 in 2006.
305 There was no particular explanation by the plaintiff as to this large increase nor any suggestion by him that in the future, similar increases were likely.
306 As the plaintiff explained, his income was dependant on a number of variables, including the amount of overtime he worked and the number of transfers he carried out during his shift.
307 It is clear from the plaintiff’s evidence that his payment structure was somewhat unusual. As he described, his base hours and rate was really a very insignificant part of his income which in fact largely was made up of overtime.
308 This is not a case where comparable employee details are of any great assistance to me in fixing the “without injury” earnings figure. It became apparent during cross-examination of the plaintiff that all twenty FDAs were on a similar roster whereby they worked a week of standby, a week of attending funerals and looking after families between 8.00 am and 5.00 pm and, at times, night shift.
309 From 9.00 am to 5.00 pm, the plaintiff was paid the ordinary hourly rate. When he worked nightshift, he was paid extra and did not receive any additional payments for transferring bodies. Whilst on standby, he received additional payment for transfers of bodies.
310 In these circumstances, the plaintiff was not able to predict, nor could any other FDA predict, what he would earn during a particular year.
311 Taking into account all these factors, doing the best I can, and allowing for a moderate increase in the three years after injury, an appropriate “without injury” earnings figure most fairly reflecting what the plaintiff would have earned but for injury is one in the range of $70,000. Sixty per cent thereof is $42,000 or $807 per week.
312 Wage details provided by Monjon, the plaintiff’s current employer, indicate that in the twenty five weeks from 18 January to 30 June 2012, the plaintiff earned $19,961. For fifteen weeks thereafter from 1 July 2012 to 19 October 2012, he earned $12,223, making a total of $31,884.50. Over that thirty-seven week period, the plaintiff earned an average of $861.74 per week.
313 This figure is not in dispute. However, counsel for the plaintiff submitted it was appropriate to reduce this weekly amount to allow for casual loading of twenty five per cent (twenty per cent on the calculation as counsel submitted was appropriate) on the basis set out in the Flexi Personnel report. Thus, $862 per week x 52 weeks = $44,825 x .8 = $35,859.61 or $ 689.60 per week.
314 In the alternative, it was submitted five weeks’ holiday should be allowed and on that basis, working 47 weeks at $862.00, the gross annual income was $40,514 or $779.11 per week.
315 I do not accept either approach suggested by counsel for the plaintiff. There is no reference in the Act to any different calculation being required for a casual employee nor any legal authority that this approach should be followed.
316 The figure of $862.00 is the amount the plaintiff is capable of earning in suitable employment. Having made this finding, I am not required to consider the other positions set out in the 2012 IPAR report.
317 The plaintiff earned in excess of $807.00 working at DGTEC. He coped with that job, as he did working as a courier.
318 The plaintiff now earns $862.00 per week, in excess of the $807.00 figure. He enjoys his current job and copes well with it. There is no indication that position is at risk. The plaintiff is working about forty hours a week and at times has been able to work more hours. He has not required any time off due to any problems with his shoulder and hopes to work in that position for the next five years.
319 Taking into account the plaintiff’s ability to cope with the DGTEC work and his current job, I am not satisfied the plaintiff does not have the ability on a permanent basis to earn in excess of $807.00 per week.
320 As he has not suffered the requisite forty per cent loss, the plaintiff’s application in relation to loss of earning capacity is dismissed.
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