Hood v Victorian WorkCover Authority
[2021] VCC 535
•14 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01270
| CLINTON ALEXANDER HOOD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2021 | |
DATE OF JUDGMENT: | 14 May 2021 | |
CASE MAY BE CITED AS: | Hood v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 535 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – permanent serious impairment or loss of a body function – function associated with the left shoulder – pain and suffering only – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(b)
Cases Cited:Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr R Middleton QC with Mr A Macaskill | Lander & Rogers |
HIS HONOUR:
Introduction
1Clinton Hood seeks leave to commence a proceeding to recover damages under s 335(2)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). This concept is defined in s325(1). He relies on a permanent serious impairment or loss of a body function, being the function associated with his left shoulder. As to “serious”, he relies on the consequences to him with respect to pain and suffering and not on the consequences with respect to loss of earning capacity.
2The defendant opposes the application because Mr Hood cannot satisfy the test of “serious injury”. Within that opposition, it attacks his credit as a witness.
Circumstances
3Mr Hood is now forty-seven. He is the eldest of two children. He is now single. He was once married but is divorced. He has two children, one lives with him, the other with his mother.
4Mr Hood’s education and employment history tended to intertwine. He completed Year 12 at the Gisborne High School. He then opened a courier business, which he ran for a year. He then moved into what he called “local and interstate logistics” and then into “other interests” including logistics, transport, storage and product distribution.
5In about 1998, he went to the United States of America and gained employment with Lehman Brothers. Between then and 2005, his work took him to the United States, England, Australia and Singapore. In the meanwhile, in 2000, he completed a bachelor’s degree in International Commerce at the London Business School.
6In 2005, Mr Hood returned to Australia. He worked for Grange Securities for a year before setting up a private equity business. This business operated between 2006 and 2012. It had eclectic interests covering transport, resorts, hotels, agricultural products and services and property development.
7It appears this business came to an end when, in 2012, Mr Hood was arrested and charged with the misappropriation of $1.2 million from a fuel grant fund. After pleading guilty to an offence or offences, he was convicted and sentenced to six years’ imprisonment with a non-parole period of two years’ imprisonment. He was paroled in May 2014 after serving two years’ imprisonment.
8Following his release from prison, Mr Hood gained employment as a truck driver and then as an operations manager. In July 2015, he left that employ to become an operations manager with a building business called Plastic Formwell Installations. This employment lasted until August 2016. In the following month he started with Paul Jeffries Holdings Pty Ltd, trading as “MoveJust4U” (“the employer”) as a removalist and truck driver on a full-time basis.
20 January 2017
9On 20 January 2017, Mr Hood, with the help of two other men, was removing a piano from a private residence. While doing so, one of the other men partly dropped his end of the piano, causing an increased strain for Mr Hood and injuring his left shoulder. He stopped work and sought treatment. He was prescribed Tramadol and Endone.
10Not long after the incident, Mr Hood was referred to Mr Richard Large, an orthopaedic surgeon, for treatment. On 7 April 2017, Mr Large reported to the general practitioner. In the opening paragraph, he said:
“Thank you for your referral of Clinton regarding his non-dominant left shoulder problem. I am really at a loss as to what is going on here. It does not fit into any of the normal diagnostic boxes, which I am familiar with. I will need to keep looking before I can come up with a differential diagnosis with which I am happy.”
11Mr Large then spoke of Mr Hood’s complaints and the findings of his examination. The examination involved the application of various tests. One of the tests was inhibited “by participation and pain”. The other tests were the Hawkins-Kennedy, Jobe, Speed and O’Brien. Each looks at different aspects of the shoulder and each was positive. Although Mr Large could not then diagnose the condition, one senses he felt Mr Hood was genuine and there should be further tests for a diagnosis, for the last paragraph of his report reads:
“Clinton needs pain management in the form of multimodal analgesia and water-based activity to try to encourage movement. I am going to consult with one of the radiologists, about whether there is a pectoralis major tendon partial tear. If this is the case, I will get Clinton back in soon to discuss this. Otherwise I am going to need to throw the net a little wider and get cervical spine brachial plexus MRIs. A nerve conduction study may also be beneficial.”
12On 15 March 2017, MRI scans revealed widespread tendinopathy and strain in the anterior capsule of the left shoulder. Later MRI scans of the brachial plexus were largely normal. MRI scans of the cervical spine excluded radiculopathy and myelopathic features.
13On 4 May 2017, Janaka Seneviratne, a neurologist, conducted a nerve conduction and electrophysiological study of Mr Hood. As a result, he believed the left arm symptoms were unrelated to a nerve injury, left brachial plexus injury or cervical radiculopathies.
14On 19 June 2017, Dr Richard Gassin, musculoskeletal physician, consulting in musculoskeletal pain management, performed a hydrodilatation on Mr Hood.
15During the first twelve months after the accident, Mr Hood had three cortisone injections into his shoulder. They gave partial relief. He also had physiotherapy, acupuncture and hydrotherapy.
Queensland
16In May 2018, Mr Hood moved to Queensland to be closer to his parents and to avoid the effect of another Melbourne winter on his shoulder. In Queensland, he continued receiving physiotherapy, acupuncture, “self-funded” massage therapy and what he describes as “Chinese medicine”.
17In December 2018, he stopped seeing his then physiotherapist and looked for another. He had massage therapy fortnightly. When his shoulder felt inflamed, he uses ice packs. Each day, he wore a shoulder brace for three to four hours. In October 2019, he was taking six to eight Panadol tablets each week.
18During his time in Queensland, Mr Hood was not employed.
19In Queensland, Mr Hood saw a general practitioner, Dr Rohan Swaris.[1] Dr Swaris first saw Mr Hood on 10 July 2018 and last on 20 June 2019. On the first occasion, Dr Swaris observed the muscle bulk of the left upper limb was reduced and there was reduced power in the major muscle groups. Whether on that occasion or later, Dr Swaris tested his range of movement of the left shoulder and found limitations: forward flexion was 95 degrees, extension 130 degrees; internal rotation 80 degrees, and external rotation 40 degrees.
[1] Report dated 24 September 2019
20Dr Swaris sought the opinion of an orthopaedic surgeon, Mr Reagan Brosnan, and aided by MRI scans, diagnosed bursitis. He treated the bursitis with a cortisone/ local anaesthetic injection. At the last visit, Dr Brosnan noted that the strength of the left arm was improving and Mr Hood had almost a full range of motion of the left shoulder.
21Writing to the authorised agent on 27 May 2019, Dr Brosnan said:
“Clinton’s MRI scan revealed a very mild bursitis, but no rotator cuff tearing. I have explained to Clinton at length today that there is certainly no indication for any surgical care and I think Clinton was quite happy with that end result. I wish him the very best and have discharged him from my care.”
22During 2018, Mr Hood was the Chair and Chief Executive Officer of an entity called “Horizon Equity Partners”. Mr Hood worked for this entity, selling financial products. He received no income from doing so. He worked remotely from Queensland.
23On 17 May 2019, MRI scans were performed.
24On 15 or 22 May 2019, he was injected under ultrasound for possible AC joint pathology with minimal improvement.
25On 12 July 2019, his weekly payments of compensation ended after the 130-week period.
26Pausing there. In 2017, Mr Hood was the Chairman and Chief Executive Officer of an entity called “Horizon Group”. It became insolvent at the end of that year. While operating in 2017, Mr Hood derived no income from his association with it. Mr Hood has a LinkedIn account. In May 2018, he entered on the account that he was Chairman of an entity called “Horizon Equity Partners”. Although it was not clarified, I assume he derived no income from Horizon Equity Partners.
27Later in 2019, MRI scans confirmed an element of bursitis with no obvious cuff pathology.
Victoria
28In February 2020, Mr Hood returned to Victoria to seek employment. Presumably, he saw his opportunities as being better in this State. In addition, it would bring him nearer his children so that he could, as he put it, re-connect with them in a meaningful way.
29His search for work was successful. In May 2020, he became a driver with an interstate transport business. He drove a tip truck with an automatic transmission. By November, the business ceased its Victorian operations and Mr Hood was forced to look for other work. He did so, driving a truck with automatic transmission and power steering. The truck carried crushed rock, mainly for road construction. He works eighteen days each month. This work takes him beyond the metropolitan area of Melbourne.
Current state
30Mr Hood now lives in an outer suburb of Melbourne.
31His shoulder pain is constant. The level of pain fluctuates during the day. It is most painful when he wakes up and at the end of the day. It is less painful now than at the time the injury first occurred. Greater movement and use of the shoulder increases the level of pain. This is so despite his attendance at a gymnasium and using resistance bands to exercise. His shoulder is weaker than before the accident. It is noticeable when he lifts or carries items and if he lifts weights.
32The extent of his current treatment came from this question and answer:[2]
Q:“So what we understand your position today to be is that you are surviving with six to eight tablets per week of Panadol, heat packs, not ice packs, hot showers and some Rapigel?---
A:Correct.”
[2] Transcript at p 43
33He is presently working as a truck driver, eighteen days per month. Despite the existence of an automatic transmission and power steering, the work does affect him:[3]
“The work is not bad with the only drawback being that my left shoulder becomes more tired and irritable as the working day rolls on. I suffer from constant pain that feels like a toothache all the time.”
[3] Affidavit sworn 28 January 2021 at paragraph [8]
34For about thirty-five years, Mr Hood was a keen golfer. He would practice twice weekly and play as often as he could. In the period 2005 to 2009, he would go to the driving range every “couple” of months.[4] Following his release from prison, he continued to practice and play social rounds of golf. He last played on 26 December 2016. Since the accident, he has not resumed playing golf. He saw golf as a social event but also a relief from stress. He cannot raise his left arm above shoulder height.[5]
[4]Transcript at p 64
[5]Transcript at p 15
35Before the accident, Mr Hood ran for exercise. He did so whenever he had the chance, usually weekly, running up to five or six kilometres. He no longer runs because of his shoulder.
36He was “pretty good” at sports generally. He played tennis with his children and also socially. He does not now, although playing tennis with his children is partly denied through his present inability to see his son.
37While asleep, if he rolls onto his left side, he experiences sharp pain and wakes up. Having woken, he struggles to go back to sleep because of the intense, but brief pain. If this occurs, he is tired and irritable the next day.
38Mr Hood can care for himself but does so slower than before the accident. No longer does he live alone: his sixteen-year-old daughter has joined him. This has been a source of great joy to him, even though he has little contact with his thirteen-year-old son. He ascribes this to his bitter relationship with his former wife. When on his own, he was able to clean his residence and kept it clean and tidy.
39Although taking strong pain-relieving medicines in the past (Lyrica and Targin), he would prefer to take none but is taking Panadol sparingly. On average, he takes about six to eight tablets each week with some weeks nothing and others more than six to eight tablets. Panadol gives him temporary relief.[6]
[6]Transcript at p 64
40He told Mr Doig he uses occasional Panadol for his shoulder pain and receives physiotherapy intermittently.[7] That is still the case today.[8]
[7]Transcript at p 17
[8]Transcript at p 17
41He uses ice packs on his shoulder after work and has hot showers in the evenings. He rubs a substance called “Rapigel” into his shoulder which he finds more effective than Dencorub or Deep Heat.
42For more than a year, he has not sought medical attention or taken prescription medicines.
43At the end of his working day, the pain in his left shoulder has reached 5 or 6 out of 10.
Other medical evidence
Associate Professor Buzzard
44Associate Professor Anthony Buzzard is a general surgeon. On 20 July 2017, he examined Mr Hood at the request of an authorised agent.
45Mr Hood complained of pain in his left shoulder after advising he had never had any trouble with the shoulder before the injury on 20 January 2017. The pain involved his entire left arm including the hand and fingers. The pain in the shoulder and arm was getting better. There was some pain on the left side of his neck, which, with physiotherapy, was also getting better. He was taking Lyrica day and night. He was seeing a pain management specialist, his general practitioner and physiotherapist regularly.
46On examination, and dealing with the left shoulder, there was some tenderness in its anterior aspect. Using a goniometer, Associate Professor Buzzard measured the movements of the left shoulder and found: forward flexion was 90 degrees; extension 30 degrees; abduction 80 degrees; adduction 20 degrees; external rotation 50 degrees, and internal rotation 30 degrees. All reflexes were present and normal. There was no sensory disturbance.
47Associate Professor Buzzard diagnosed an apparent bursitis as the injury to the left shoulder associated with a significant functional overlay. However, he wanted further information to clarify his diagnosis – reports of ultrasound examinations and of the radionuclide bone scan, for he could not explain the left arm symptoms, whether due to the shoulder or cervical spine. Its clarification would also point to the appropriate treatment. The physical injury was caused by the accident. At present, Mr Hood could not return to his pre-injury duties but could perform modified duties not involving a range of movements of the left shoulder above shoulder height.
Mr Low
48Mr Bruce Low is an orthopaedic surgeon. On 14 November 2017, he examined Mr Hood at the request of an authorised agent.
49Mr Hood complained of left-sided neck pain and left trapezius pain. Working above shoulder height aggravated the pain. This pain does not radiate down the arm. Occasionally he has headaches. He was reasonably comfortable with his left arm by his side.
50An examination revealed restricted movements with the left shoulder compared with the right: abduction was 120 degrees for the left and 180 degrees for the right; flexion 120 and 180 degrees; internal rotation 80 and 90 degrees, and external rotation 80 and 90 degrees. There was decreased strength in the left shoulder.
51Since Mr Low had limited information available, he speculated as to the nature of the injury, saying it sounded like a brachial plexus traction injury, together with a possible sprained neck and sprained left shoulder. These injuries would take two or three years to heal and may never do so.
52Mr Hood could not then return to his full pre-injury duties and this seemed permanent. He was capable of office work on a full-time basis provided he did work above shoulder height with his left arm.
Dr Karna
53Dr Roy Karna is a rheumatologist. On 28 June 2018, he examined Mr Hood at the request of an authorised agent.[9]
[9] Report dated 2 July 2018
54Using a goniometer, Dr Karna found the active movements of Mr Hood’s right shoulder were normal but those of his left shoulder were: abduction was 120 degrees; flexion 120 degrees; retraction 40 degrees; internal and external rotation both 60 degrees, and a slight restriction in adduction.
55Dr Karna said of diagnosis:
“From a diagnostic perspective I believe that this worker initially sustained a soft tissue injury to the left shoulder and may also have had a minor self-limiting brachial plexus traction injury of which there is no evidence of any ongoing neurological disorder currently. He has however as a sequelae developed an adhesive capsulitis/left frozen shoulder lesion manifesting itself with global restricted movements and some degree of nocturnal pain but with the fundamental issue now being stiffness: Continuing improvement is being noted over time.”
56Dr Karna explained the meaning of the last sentence in the quoted paragraph under the heading of “Impairment”:
“From an impairment perspective, I make note of the fact that the natural history of adhesive capsulitis lesions is for improvement with time. In that context symptoms can take up to two years to declare as to whether or not any residual problems or impairment is likely. The worker himself said that there is improvement albeit slow at this stage.”
57Dr Karna suggested a review at the beginning of 2019. Since there is no further report from Dr Karna, I assume he was not asked to review Mr Hood.
Dr Navin
58Dr Marcus Navin is an occupational medicine physician. On 26 February 2019, he examined Mr Hood at the request of an authorised agent. He assessed Mr Hood to advise on the provision of medical and other health services and about a vocational assessment.
59As with the other practitioners, Dr Navin measured the range of movement of both upper limbs and upper girdles. Mr Hood had a full and normal range of movement of his right upper limb. With the left, forward flexion was 120 degrees, extension, 30 degrees, which incidentally equalled the right for that movement. Abduction was 120 degrees, internal and external rotation was 90 degrees and adduction was full and complete without restriction.
60Dr Navin thought Mr Hood had made significant improvement since the accident. He had regained muscle bulk and volume which were reflected in his increased capacity in the left arm. He had improved to the extent he could return to some form of employment.
61His diagnosis was a strain to the left shoulder joint or, as he put it, “some evidence of strain”. In answer to a question about his current treatment, Dr Navin said:
“The treatment is that of normal expectant resolution of the adhesive capsulitis combined with a self-managed rehabilitation strengthening programme.”
62The injury was recovering as expected. There had been improvement in tethering and restriction of movement.
63The treatment was for adhesive capsulitis. The absence of muscle wasting meant he had fully recovered the functional capacity of his muscles. He was not being treated and required no active treatment as he was managing himself. He could now engage in a return to work programme. He wanted to remain in Queensland and work in south eastern Queensland, preferably in Brisbane. At present, he could return to work on Monday, Wednesday and Friday, doing a full day’s work. He would recover on the intervening days. This would last for about four weeks, after which he could return to five days a week. He should only work in an office setting and in the roles described by the vocational assessor, Acumen. Mr Hood agreed with Dr Navin he could carry out the managerial functions of an office manager, transport services manager, human resource manager, business development manager and corporate services manager.
Dr Doig
64Dr Graeme Doig specialises in general orthopaedics and trauma. At the request of an authorised agent, he examined Mr Hood on 12 March 2019. Dr Doig examined him for an impairment assessment of the left shoulder, presumably for a claim under s 197 of the Act.
65Mr Hood told Dr Doig of generalised pain around the front of the shoulder with difficulty using his arm overhead.
66Dr Doig saw Mr Hood as a slim, fit person who walked comfortably into the consulting rooms without distress. There was no neurological deficit of the left upper limb.
67Since it was an impairment assessment, Mr Doig’s measurements of the range of various movements were precise: flexion was 110 degrees; extension 10 degrees; abduction 110 degrees; adduction 30 degrees; external rotation 70 degrees, and internal rotation 40 degrees.
68Mr Doig diagnosed a soft tissue injury to the left shoulder, noting MRI scans suggested a capsular strain.
69As to the future, Mr Hood could not return to his pre-injury duties. With his left arm, he is limited to lifting less than 5 kilograms. The same limitation applied to pushing and pulling at or below waist height. He noted Mr Hood had problems using his left arm overhead but made no recommendation about overhead use. Finally, he said Mr Hood would require breaks on long-distance driving.
70After noting the prognosis was guarded, Dr Doig said Mr Hood’s condition had reached the maximum medical improvement “as per the definition in the AMA4 Guides”. Presumably, this is a reference to the definition of “permanent impairment” contained in the “Glossary” in the Guide to the Evaluation of Permanent Impairment, 4th edition.
Mr Chehata
71Mr Ash Chehata is an orthopaedic surgeon, specialising in upper limbs. On 1 September 2020, he examined Mr Hood at the request of his solicitors.[10]
[10] Report dated 9 September 2020.
72Mr Chehata obtained an accurate account of the incident and his subsequent treatment.
73Under the heading “clinical examination”, Mr Chehata confined the results of his clinical examination to measuring the active range of movement of the left shoulder: flexion was 150 degrees; extension 40 degrees; adduction 30 degrees; abduction 150 degrees; internal rotation 60 degrees, and external rotation 60 degrees.
74As to diagnosis, Mr Chehata said:[11]
“It appears that Mr Hood has developed at the very least, adhesive capsulitis with a recalcitrant bursitis in his left shoulder with loss of full range of movement relating to the adhesions that have formed. These are often the classic findings of the clinical diagnosis and often present with neuropathic symptoms.”
[11] At p 5
75In answer to a question whether Mr Hood’s injury had a substantial organic basis, Mr Chehata said:[12]
“It is very likely after such a heavy lift, that this is an organic injury, with the diagnosis more likely to be more in keeping with adhesive capsulitis.”
[12] At p 6
76Mr Chehata saw the injury as due to the incident of “heavy lifting” on 20 January 2017 and noted adhesive capsulitic patients do not necessarily regain all of their range of movement.
77Mr Hood is restricted in performing overhead or over the shoulder movements.
78Since Mr Hood cannot return to some form of unskilled heavy manual work, what he does now is ideal in driving a tipper truck.
79As to prognosis, after a very long period of time, the condition of his left shoulder has stabilised or plateaued. He is unlikely to regain full range of movement with his left shoulder.
Dr Slesenger
80Dr Joseph Slesenger is an occupational physician. At the request of Mr Hood’s solicitors, he examined him on 24 December 2020.
81Mr Hood told Dr Slesenger of mild residual pain over the anterior and superior left shoulder and his range of movements of that shoulder were well-preserved. He had difficulty lying on his left side, sustaining forward reaching and over-shoulder reaching and difficulty lifting heavy loads. He favours his right side.
82As is his practice, Dr Slesenger measured the range of movements of Mr Hood’s cervical spine, shoulders, elbows and wrists. Comparing the range of movements of the left shoulder with the right, the left was markedly reduced: flexion was 120 degrees against 170 degrees; extension 50 and 70 degrees; internal rotation 50 and 90 degrees; external rotation 40 and 80 degrees, and abduction 100 and 170 degrees. For the upper limbs, the biceps circumstance was the same for each. Neither upper limb showed any neurological deficit.
83Again, as is his practice, Dr Slesenger casts a wide net in his diagnoses. For the left shoulder, it is a soft tissue injury, adhesive capsulitis, chronic left shoulder pain and AC joint arthropathy.
84Dr Slesenger saw no non-organic basis for Mr Hood’s complaints. His current impairment stemmed from the incident. Mr Hood could not return to his pre-injury role because of the manual handling and postural demands of that employment.
85Dr Slesenger considered Mr Hood fortunate to have obtained his current job because it did not entail manual tasks, such as loading and unloading the truck and closing gates and curtains. If required to do so, he would struggle with those tasks. He thought the criminal conviction would impede Mr Hood obtaining managerial or administrative roles.
86Dr Slesenger recommended these restrictions which would continue into the foreseeable future: no pushing, pulling, carrying or lifting over ten kilograms; no sustained forward reaching; no sustained over-shoulder reaching, and no repetitive shoulder tasks. He recommended these restrictions applying to both shoulders, as Mr Hood was at risk of overusing the right shoulder and damaging it. He did not anticipate any significant alteration in Mr Hood’s presentation or restrictions in the foreseeable future.
87Under the hearing “Prognosis”, Dr Slesenger said:
“The prognosis must be guarded given the length of Mr Hood’s impairment and disability and his poor response to treatment to date. I do not anticipate a significant alteration in his presentation in the foreseeable future.”
Legal considerations
88As I said at the outset, Mr Hood relies on paragraph (a) of the definition of “serious injury”. In two paragraphs of s352(2), the meaning of “serious” is explained. Relevantly, paragraph (b) provides:
“[T]he terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
89Relevantly, paragraph (c) provides:
“[A]n impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i) the pain and suffering consequence; or
(ii) the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
90Counsel drew my attention to the adverb “very” where it qualifies the noun “considerable” and referred to a passage from the joint judgment in Sabo v George Weston Foods:[13]
“In considering whether Mr Sabo[’s] impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable’.”
[13] [2009] VSCA 242 at paragraph [73]
91Counsel also relied on an earlier paragraph in that judgment dealing with Mr Sabo’s return to work:[14]
“The fact that Mr Sabo is able to return to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act’s objects is to provide ‘for the effective occupational rehabilitation of injured workers and their early return to work’. … .”
[14] At paragraph [71]
92Under the heading of “The disabling effect of pain”, Maxwell P summarised the authorities on this point in Haden Engineering Pty Ltd v McKinnon:[15]
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”
[15] (2010) 31 VR 1 at paragraph [15]
93Because his complaint of pain figures significantly in Mr Hood’s case, I was referred to the observation of Dodds-Streeton in Kelso v Tatiara Meat Co Pty Ltd:[16]
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[16] (2007) 17 VR 592 at paragraph [199]
Discussion
Credit
94The defendant attacked Mr Hood’s credit in no uncertain terms. It was done in three ways:
(a) relying on his criminal conviction for a serious dishonesty offence;
(b) relying on evidence of his treatment in 2005 and 2006 and denial of any trouble with his shoulder before the accident to various practitioners. Additionally, it emphasised the apparent inconsistency between what Dr Slesenger recorded on 24 December 2020 and his oral evidence a month or so later;
(c) the way he gave some of his answers in cross-examination.
95As to (a), the defendant’s senior counsel explored his conviction and sentence over the misappropriation of $1,200,000. He denied the assertion he had at one point blamed his former wife for the offence or offences, pointing out he took full responsibility by pleading guilty.
96It is a very significant instance of dishonesty because of the amount of money involved. I do not know anything else about the circumstances. The act or acts of dishonesty do not belong to the distant past. Experience shows that some people do change, especially after serving a sentence of imprisonment which is the person’s first experience of imprisonment. This experience may rehabilitate or, at least, deter a person from dishonest behaviour. Mr Hood says he has changed his ways since his conviction and sentence in 2012. But, sadly, experience says it does not always happen. One must be hesitant in accepting the word of someone capable of such dishonesty.
97The defendant’s senior counsel spent a good deal of his cross-examination examining why, with one exception, Mr Hood had not raised earlier treatment of his left shoulder. After Mr Hood conceded there was no mention in his two affidavits, there was this question and answer:[17]
Q:“Any reason why you wouldn’t mention your pre-existing left shoulder complaint?---
A:To be honest, it was a long period of time, so I obviously forgot I could not remember the incidents.”
[17] Transcript at p 8
98As the examination proceeded, Mr Hood mentioned a fall onto his left shoulder and back when he was the manager of a transport company. The fall caused bruising and grazes. He maintained there were no medical investigations afterwards as they were unnecessary. He could not recall when the fall occurred. Whether linked to this fall or not, he could not recall the fact of an ultrasound of that shoulder in June 2006.
99Mr Hood maintained he had no problem with his left shoulder before January 2017. Consistent with that belief, he said as much to a series of practitioners: to Associate Professor Buzzard; to Mr Low; to Dr Karma; to Dr Navin, and to Dr Doig. Mr Chehata and Dr Slesenger note issues concerning the left shoulder:
(a) Mr Chehata commented:[18]
“His only documented past history is that of seeing a chiropractor in 2006 for some tendon sheath tenosynovitis and an ultrasound had also confirmed elements of bursitis, which clearly must have settled if he was working as a furniture removalist.”
[18] PCB 135
(b) Dr Slesenger records an injury in 2006 to the left shoulder while playing golf. After treatment by a chiropractor, the symptoms settled. Later, he had mild discomfort in the shoulder, which resolved. In Mr Hood’s re-examination, he could not remember why he nominated 2006.
100Mr Hood attended Freedom Chiropractic for three or four years for, as he put it, “regular check-ups, adjustments” to his lower back.[19] He mostly saw Dr Tammie Barrett. He first attended this practice on 18 December 2004.
[19]Transcript p 18
101In cross-examination, Mr Hood was taken to some of the entries in the clinical notes of Freedom Chiropractic. These entries started on 18 December 2004 and finished on 20 September 2010. The entries are cryptic. There are many abbreviations and are largely unintelligible:
(a) the entry on 5 May 2005 records what looks like on “Ex [examination]: “R C3 tender” with the R in a circle. Assuming C3 refers to something in the cervical spine, Mr Hood did not recall having trouble with his neck at the time;
(b) on 2 June 2005, the intelligible part of the entry says “Hx [history]: Driving from Qld neck stiff[?] R. low back”. It is unclear whether the word after “neck is “stiff” or an abbreviated form of shoulder. Whether he remembered the attendance, Mr Hood linked whatever was wrong with the vibration through driving and maintained it was a general check-up or adjustment. To Mr Hood, the adjustment was a whole body adjustment;
(c) on 28 July 2005, whether there is a reference to an elbow and pain is unclear. Mr Hood could not say whether he experienced pain in an elbow then;
(d) on 27 August 2005, there may be a reference to some left arm pain in the past. There is a note apparently referring to a letter to a general practitioner;
(e) on 8 November 2005, the opening line reads – “has had sore shoulder, elbows, neck – arms sore from driving legs numbness front legs R”. Later in the entry there may be a reference to C3 but that is very unclear. Mr Hood probably received a massage that day;
(f) on 20 December 2005, the entry refers to knee and shoulder pain, perhaps the right. Sore with lifting. Sore all over with sharp pain. There is another note: “letter for referral shoulder”.
The letter of referral reads, relevantly:
“Mr Hood presented to my clinic with painful left shoulder and left knee of several weeks duration.
Examination revealed dysfunction of the glenohumeral and femor[o]-tibial joints. Orthopaedic examination revealed positive drop-arm test and painful arc. …
…
Whilst joint function and range of movement has improved minimally, I am suspecting rotator cuff tendonitis or tear … .”
(g) on 30 January 2006, it appears the chiropractor received the results of an ultrasound of his knee and shoulder. There is another note: “refer physio for shoulder”.
The entry refers to an ultrasound scan performed on the left shoulder and left knee on 18 January 2006.[20] For the shoulder, the scan detected no abnormalities except a “slight excess of fluid in the tendon sheath of the long head of the biceps”.
(h) by 27 March 2006, he had had physiotherapy for the left shoulder and it had been braced and strapped;
(i) on 9 May 2006, the entry starts – “has got sore” – the next word could be an abbreviation for shoulder or shoulders. Previously, the writer had written the word “shoulder” in full. The abbreviation bears some resemblance to the full word;
(j) on 23 May 2006 and on 13 June 2006, both entries may be referring to a shoulder or shoulders;
(k) on 20 September 2006, this entry appears to be made by someone else: it is more legible. It reads: “R shoulder P worsened after last adj P shooting down R med arm to wrist. No pin.” The R and the P are circled. R probably represents right and P, pain.
[20] Report of Dr B Perera dated 18 January 2006
102Mr Hood’s repeated response to these revelations was:[21]
“It’s -- like I said, it’s 15 plus years ago, you can’t remember everything.”
[21] Transcript at p 23
103Two questions later, he was asked this telling question:[22]
Q:“How is it that when I asked you about the histories provided to these doctors wherein you denied any past history in relation to your left shoulder, you said, first of all you told them that, and, secondly, it was true?---
A: Yes.
Q:How do you swear the truth of something about which you can’t recall?---
A:Well, unfortunately, the period of time that had lapsed, unfortunately I was unable to remember everything. … .”
[22] Transcript at p 23
104Mr Hood maintained he received regular check-ups or “adjustments” about his body, not just his shoulder, back or neck.
105Between 5 May 2005 and 20 September 2006, Mr Hood attended the chiropractic clinic on twenty-five occasions and I have referred to twelve.
106After 20 September 2006 until the last entry in the notes on 20 September 2010, there are another twenty-four attendances. Many are described as “checkup”. There is two references to his shoulder or shoulders. In one, it appears the shoulder or shoulders were fine; in the other, sore.
107The chiropractic notes are difficult to understand. There are many abbreviations used. Some of the abbreviations and words are illegible. Both shoulders are mentioned. It is not the case that the left shoulder is solely mentioned.
108Mr Hood attended the Casey Medical Centre. On 20 May 2008, he saw Dr Wen Zhao at the clinic following a fall involving his left forearm and shoulder.[23] She requested an x-ray of his left shoulder. The x-ray revealed no fracture or dislocation.[24]
[23]Transcript p 37
[24]Transcript p 38
109Mr Hood ceased chiropractic treatment in about 2009 or 2010 because he stopped driving and worked administratively or for finance businesses.
110In relation to (b), to most medical practitioners, Mr Hood denied any earlier injury to his left shoulder. When presented with the evidence of the chiropractic notes and certain reports, he said he could not remember because the chiropractic attendances were a long time ago and he believed his attendances were for “adjustments” to his body, not a particular part.
111The attendances were in the distant past. A good deal happened to Mr Hood between them and now, in particular, the shattering experience of imprisonment. He ceased needing any chiropractic help when he ceased driving and that was before his imprisonment. The chiropractic notes are difficult to read but it appears the chiropractor routinely examined more parts of his body than just the upper limbs.
112The circumstances surrounding Mr Hood’s repeated denial of earlier problems with his left shoulder are sufficiently equivocal for me not to use it against his credit.
113Overall, Mr Hood’s credit is damaged by his prior conviction. The other matters have little or no effect. There are matters which bolster his credit but they do not affect the fact of his prior conviction and my hesitation in accepting his word.
Surveillance
114Surveillance was carried out on Mr Hood on behalf of the defendant:
(a) on 20 January 2021 – six hours of surveillance;
(b) on 26 January 2021 – eight hours of surveillance; and
(c) on 27 January 2021 – five-and-a-half hours of surveillance.
115During those periods of surveillance, some film was taken:
(a) on 26 January 2021 – 14 minutes and 53 seconds;
(b) on 27 January 2021 – 3 minutes and 7 seconds.
116On 26 January 2021, Mr Hood had both arms on the trolley and he was controlling it. He says his left shoulder was affected by movement because he had his left hand in his pocket. He says both children helped him lift the shopping bags into the trolley.
117I was shown 18 minutes of video arising out of 19 and a half hours of surveillance. What I did see was equivocal. The video did not assist me one way or the other.
Injury: What is it?
118Mr Large was puzzled by Mr Hood’s symptoms. He sought further information. It does not appear he was given a chance to reach a diagnosis.
119In July 2018, Dr Karna considered there was a soft tissue injury to the shoulder initially with, perhaps, a minor self-limiting brachial plexus traction injury. However, Mr Hood developed adhesive capsulitis as a consequence or sequelae of the initial injury.
120In February 2019, Dr Navin diagnosed a strain to the shoulder joint. Judging from an answer to a question, it may be that Dr Navin considered Mr Hood had suffered from adhesive capsulitis.
121In March 2019, Dr Doig diagnosed a soft tissue injury with the possibility of a capsular strain. Unfortunately, Dr Doig was not provided with Dr Karna’s July 2018 report.
122In September 2020, at a minimum, Mr Chehata diagnosed adhesive capsulitis with a recalcitrant bursitis. The loss of range of movement is a diagnostic feature of adhesive capsulitis. Neuropathic symptoms are often present.
123Dr Slesenger diagnosed four conditions: soft tissue injury; adhesive capsulitis; chronic left shoulder pain, and AC joint arthropathy. It is unclear from his report the basis for the last diagnosis.
124The injury is adhesive capsulitis. It was first diagnosed by Dr Karna and, in effect, re-affirmed by Mr Chehata and Dr Slesenger.
Prognosis and permanency
125When Dr Karna examined Mr Hood, he thought it was too early to give a prognosis and suggested a further review at the beginning of 2019.
126In February 2019, Dr Navin was optimistic of recovery. In March 2019, Dr Doig was guarded in his prognosis. For the purposes of the impairment assessment he was asked to undertake, Mr Hood’s condition had reached maximum improvement within the definition of the AMA Guides.
127By September 2020, Mr Chehata considered it unlikely Mr Hood would recover a full range of movement of his left shoulder and there was unlikely to be any further improvement.
128At the end of 2020, Dr Slesenger did not expect a significant change in Mr Hood’s condition in the foreseeable future because of the length of his impairment and his poor response to treatment.
129Apart from Dr Navin, the views of Dr Doig, Mr Chehata and Dr Slesenger essentially see no appreciable improvement or deterioration in the condition of the shoulder. Accordingly, I consider the impairment or loss of function of his left shoulder is permanent.
Consequences
Loss of movement
130Mr Hood’s dominant arm is his right. On 20 July 2017, Associate Professor Buzzard found significant restriction in the movements of Mr Hood’s left shoulder. For example he found forward flexion was limited to 90 degrees where, normality, would be 180 degrees.
131Nearly four months later, Dr Low measured the movements of both shoulders. Apparently, he did not measured extension. Of the rest, those of the left were markedly reduced compared with the right and with normality. Again, for example, flexion or forward flexion was 120 degrees as opposed to 180 degrees for the right, which is normality.
132About eighteen months after the accident, Dr Karna measured the movements of the shoulders. The movements of the right were normal while those of the left were limited. Again, for example, flexion was 120 degrees, which was how Dr Low found it about seven months earlier.
133About twenty-five months after the accident, Dr Navin performed the same measurements of both upper limbs. Again, flexion was 120 degrees.
134A month after Dr Navin’s examination, Dr Doig undertook the same measurements. He was conducting an impairment assessment, using the AMA Guides to the evaluation of permanent impairment, 4th edition, to determine the whole person impairment. With flexion, he found 110 degrees. Given the need for rounding to the nearest 10 degrees, this may be a measurement similar to the previous measurements of flexion.
135Mr Chehata examined Mr Hood on 1 September 2020 and Dr Slesenger on 24 December 2020. While Mr Chehata found flexion was 150 degrees, Dr Slesenger found it at 120 degrees.
136I have used flexion as an example. Comparing the findings of the practitioners of this and other movements, there is a consistency of the fact and degree of restriction of movement in the left shoulder.
137Irrespective of what I think of Mr Hood as a witness, this is objective evidence of a very significant loss of movement in his left shoulder. It is true the limits of those movements are constrained by his experience of pain but the consistency points to an objective basis unaffected by considerations of falsehood.
138If one looks at the range of movements of a normal or uninjured shoulder, then what Mr Hood has lost is most significant.
139Another aspect of this loss is the limits it places on other activities. Focussing on those specialists who examined Mr Hood in 2019 and 2020. The occupational physician, Dr Slesenger, places restrictions on all of the common functions of a shoulder and recommends the same restrictions apply to the uninjured right shoulder for fear of damaging it through overuse.
140Dr Doig, specialising in general orthopaedics and trauma, is somewhat more restrictive than Dr Slesenger. He recommended lifting, pushing and pulling at less than five kilograms at or below waist height and noted a problem using his left arm overhead. Mr Chehata recommended against any repetitive overhead activity.
141Of the three, Dr Slesenger is the most comprehensive with recommendations covering the various uses of the arm necessarily affected by an injured shoulder. They point to a very significant impairment of the function of the shoulder. Despite his financial ventures, much of Mr Hood’s working life has been spent in physical jobs. There have been supervisory functions involved but a fair degree has been non-supervisory.
Pain
142Mr Hood describes his pain as like a toothache. The pain is constant:[25]
“I am in a very difficult position presently and I am very much uncertain as to the way forward. My shoulder pain is constant although it fluctuates in pain and is probably not as painful now as it was when I suffered injury, however the pain is present all the time.”
[25] Affidavit sworn 21 October 2019 at paragraph [16]
143It is at its worst when he wakes and at the end of the day. It is 5 or 6 out of 10 at the end of his working day.
144Generally, plaintiffs struggle to their describe pain. Often they are asked to estimate the level of pain on a scale between 0 and 10. In his affidavits, Mr Hood described his pain as feeling like a toothache. He also gave its level on that scale at the end of his working day. What he meant by toothache pain was not explored. One thing about a toothache is its constancy. Another thing is the dullness of the pain as opposed to sharpness. As to severity, one would usually think of the pain of a toothache as moderate in the classes of low, moderate and high. This is where Mr Hood appears to place his level of pain at the end of his working day after a day of increased shoulder movement.
Current treatment
145Mr Hood last received medical treatment in June 2019 when he was in Queensland. He stopped physiotherapy in mid-2019. While in Queensland he attended a chiropractor but not since his return to Victoria. His return was not to seek treatment but to obtain employment and reconnect with his children on a “meaningful level”. However, until early 2020, he received massage therapy.
146Having taken Targin, Lyrica and Duloxetine in the past, Mr Hood now takes six to eight Panadol tablets each week. There are weeks when he takes none and other weeks where he takes more than six to eight. He uses heat packs about twice a week. To a lesser extent, he uses ice packs. They give relief for up to ten to fifteen minutes. He takes hot showers after his return from work. He also uses heat and ice packs for his right shoulder. Every evening, he uses Rapigel, which to him, acts as an anti-inflammatory medicine. He believes Rapigel has twice the strength of Deep Heat. He does stretching exercises using bands.
147In his second affidavit, Mr Hood said:[26]
“… however given the fact that I also have had 2 driving jobs for the past 8 months, I am not able to take prescription painkillers, therefore I put up with the pain and look forward to resting during the time that I have off which makes it difficult for me to do much else.”
[26] Affidavit sworn 28 January 2021 at paragraph [14]
148However, he was unemployed during 2018 and took only Panadol. On the one hand, being unemployed should not have precluded taking of prescription drugs. On the other hand, it is the driving which increases his level of pain. That piece of evidence is not inconsistent.
149Taking on average six to eight Panadol each week is consistent with the levels of pain Mr Hood experiences. It reflects his evidence of variability and of the highest levels reached. It is unsurprising he does not seek medical treatment now and has not seen a doctor for more than a year.
Sleep
150The experience of pain makes going to sleep more difficult as Mr Hood strives to get into a more comfortable position. Once comfortable, he sleeps unless he rolls onto his left side. Unfortunately, he wakes most nights and then struggles to go back to sleep. This leaves him feeling tired and irritable the next day.
Domestic issues
151A major reason for leaving Queensland was to re-establish his contact with his children. He was successful in that his sixteen-year-old daughter, now lives with him. He was unsuccessful with his thirteen-year-old son, with whom he has little contact due to his very difficult relationship with his former wife. How much his daughter helps in domestic tasks was not revealed.
152His right arm is the dominant arm. His left arm is considerably weaker now than before the accident. Mr Hood can dress himself, although he is much slower in doing so. Owing to the limitations in movement of the left shoulder, domestic activities are restricted to a degree.
Employment
153Mr Hood’s criminal actions have narrowed the avenues of employment available to him. As he pointed out in his first affidavit:[27]
“… and secondly, the reason I was doing physical work in the first place is because I now have a criminal record and I would need to disclose this any-where that I apply, especially a desk based position with some responsibility. … .”
[27] Affidavit sworn 29 October 2019 at paragraph [15]
154So it was that three months after his return from Queensland, Mr Hood obtained employment as a driver with an Adelaide based transport business, Monahans. He lost that job in November 2020 when Monahans ceased its operations in Victoria.
155Shortly afterwards, he obtained much the same type of job with another business, Fulton Hogan, in its asphalting division. He drives a tandem or rigid vehicle hauling crushed rock. Using a feeder belt, the truck feds crushed rock into an asphalt machine. He works twelve-hour days and eighteen days a month. However, the twelve-hour day involves eight hours of driving, with the rest waiting for his truck to be loaded. In the week before the hearing, he worked about 52.5 hours.
156This job virtually eliminates the manual labour involved in many truck driving work. He is not required to load or unload by hand, to open and close tailgates or to open and shut curtains.
157With his capacity for work, the impairment has narrowed the type of physical work he can perform. He is fortunate to have his present job for it has little physical demands apart from the driving itself. His capacity to perform his pre-injury employment is lost. Because of his intelligence and, possibly, managerial skills, he is able to supervise others. His ability to work in the financial sphere seems permanently impaired for reasons which have nothing to do with the accident. Mr Hood is an intelligent person and has shown versatility in the non-physical side of employment. He has lost a great deal of his physical capacity to do work. But, unlike many workers, he retains a broader non-physical capacity for work. Nevertheless, overall, his range of choice has been significantly diminished.
Overseas holidays
158In 2017, after the accident, Mr Hood travelled to Thailand on several occasions and stayed there for up to ten days. In 2019 or 2020, he travelled to Singapore for three or four days. These trips were for pleasure. The fact that he made these trips has no effect on whether or not he has suffered a “serious injury” because their purpose was relaxation, even though accompanied by lengthy flights.
Sport
159As to his sporting activities, the cross-examination focussed on golf. In his first affidavit, he described his involvement with it:[28]
“I have always been a keen golfer having played for the better part of 35 years. I was at the driving range twice per week and also played as often as I could. I used to have a proper handicap many years ago, however after coming out of prison I just played socially and was at the driving range. I have not returned to playing golf and this is a major loss to me, not just socially but as a means of stress relief.”
[28] Affidavit sworn 29 October 2019 at paragraph [28]
160After his release from prison, he resumed playing golf. He played at Huntingdale golf course and the Mornington golf course, with the majority of his golf played at the latter. Although he said he lowered his handicap to 16, I doubt he has ever had a formal handicap for many years. A handicap of 16 apparently represents the number of strokes above par for him to complete a round. He played fortnightly with friends and relatives of his then partner. It was a social game, without competition. He last played on 26 December 2016. Apart from social games, before the accident, he would go to a driving range every couple of months. He once played regularly enough to receive a handicap but that was in 2006 or 2007.
161Before the accident and judging from his scores, Mr Hood was a modest golfer. He did not play as regularly as many golfers do. He played with friends and family members. These were social outings. There was no competition between the players. He was not a member of a golf club. He did not have a handicap or a “GA”.[29] Nevertheless, he has lost something of importance to him for he has lost the pleasure of playing golf with friends and family.
[29] Despite my query, it never became clear what a “GA” is
162Again, Mr Hood has ceased running where once he would run up to 5 or 6 kilometres whenever “I had the opportunity”. He ran for enjoyment and, presumably, to keep fit. He did not run regularly or for training purposes. This loss is one of importance to him but less so than that of golfing.
163Before the incident, he went to the gym five days a week. It appears he attended a gym while in Queensland but does not now. His present inability is due to the injury. Not much was made of this loss in the evidence. Given the level of pre-injury attendance, I consider the ability to use the gym was something of value to Mr Hood.
164Overall, Mr Hood believed he was “pretty good” at all sports and played tennis with his children and also socially with others. His children are now thirteen and sixteen. They are of an age to play tennis with him. However, all sports, including tennis, are largely lost to him. Again, this inability represents a loss of something of value.
Conclusion
165There are two parts to the legislated test of “serious injury”, one subjective and the other, objective. Mr Hood’s movements of his left shoulder have been impaired such that very significant limits are recommended for its use. His avenues of physical work is constrained. He suffers from moderate levels of pain which is persistent. Not unexpectedly, his physical incapacity and pain restrict both the employment and domestic side of life and will do so permanently for a man in his middle years. He does retain a good deal. On the other hand, he is working full-time and is now parenting his teenage daughter.
166As Nettle JA said in Haden Engineering v McKinnon,[30] the assessment of whether pain and suffering consequences are sufficient to qualify an injury as a serious injury is a question of fact, degree and value judgment.[31] In my opinion, Mr Hood has suffered a serious injury. I consider the pain and suffering consequences of his left shoulder injury is fairly described as being more than significant or marked and at least being very considerable.
[30]Supra
[31] At paragraph [51]
167I will grant Mr Hood leave to commence a proceeding for the recovery of damages. I will hear the parties on the form of Orders and the question of costs.
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