Hunt v Victorian WorkCover Authority

[2016] VCC 1654

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-05360

MATTHEW STEPHEN HUNT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	12 and 13 October 2016
DATE OF JUDGMENT:	10 November 2016
CASE MAY BE CITED AS:	Hunt v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2016] VCC 1654

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment of the right shoulder, bilateral impairment – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; TheHerald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292

Judgment:                 Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I McDonald with Ms J Frederico	Maurice Blackburn Pty Ltd
For the Defendant	Ms M Britbart QC with Mr C O’Sullivan	Thomson Geer

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 OP Industries (Melbourne) Pty Ltd (“the employer”) on 23 August 2011 (“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).

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 injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The primary application related to the right shoulder and, in the alternative, the application was brought for bilateral upper limb impairment.[1]  In closing addresses, counsel for the plaintiff indicated reliance was only placed on the right shoulder, as the case in relation thereto was strong.  No submissions were made in relation an application involving the cervical spine which was described in opening as “very much second tier.”[2]

[1]Transcript (“T”) 3

[2]T140

5       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.

6       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s134AB(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

8 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”.

9       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.

10      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

11      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

12      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

13      Subsection (38)(h) provides consequences which are psychologically based to be wholly disregarded in paragraph (a) cases.

14      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.

[3](2005) 14 VR 622

[4](2006) 14 VR 602

15      The plaintiff relied upon two 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.

The Plaintiff’s evidence

16      The plaintiff is fifty-four, having been born in July 1962.  He is married with three children.  He is right hand dominant.

17      The plaintiff finished school midway through Year 11 and then worked as a carpet layer’s apprentice.  Having completed his apprenticeship, he worked as a carpet layer for the next ten years.

18      When he was about twenty-eight, the plaintiff started work as a brick carter, a role he performed for about eleven years. His carting business also owned a café for a couple of years which his wife operated.[5]

[5]T13

19      In about 2000, the plaintiff commenced work with the employer, a large company specialising in air conditioning and mechanical services contracting. The plaintiff worked as a labourer, full time, plus overtime, and was earning good money.

20      In 2009 and 2010, the plaintiff grossed $66,486 and $70,076 respectively. In 2010, he grossed about $70,000.

21      The plaintiff earned a base income together with overtime.[6]  In the 2011 financial year, he only earned $48,000. That year, the building industry went through a bit of a downturn and, as a result, the plaintiff was made redundant. He found it difficult to obtain alternative employment and considered starting his own business.

[6]T13

22      The plaintiff had a friend who had a window cleaning business and he went out with him a couple of times to see how it operated. The plaintiff registered a business name but did not do anything else in terms of trying to get customers. During that time, he lived off his redundancy payout.[7]

[7]T16

23      The plaintiff agreed that there were times when the employer did not have enough work for all the staff it had taken on and there were redundancies as had happened in 2010.[8]

[8]T131    

24      However, before the proposed window cleaning business got off the ground, the plaintiff was contacted by the employer and re-employed in the same capacity, as was the common practise in the building industry.

25      When the plaintiff returned to work, at that stage, things were quite busy and he was earning good money.  He believed he was earning about $1,700 a week prior to the said date and, as best he could recall. WorkCover assessed his pre injury average weekly earnings at that amount.  For the financial year ending June 2012, the plaintiff grossed about $90,070, which was a combination of wages and WorkCover payments.

Previous health

26      In 2005, the plaintiff had a fall at Sovereign Hill and injured his right shoulder.  He had conservative treatment, and underwent an ultrasound.  He did not think he had time off work.  He recovered from that injury after a few weeks. 

27      The problem resolved fairly quickly, initially, but then emerged again in early April 2007 when the plaintiff was working with the employer as a labourer, which may have contributed to the re-emergence of right shoulder symptoms.  Dr Smith arranged an ultrasound in April 2007 and referred the plaintiff to the Austin Hospital to see an orthopaedic surgeon, however, he did not attend, as his shoulder improved. 

28      At the time, the plaintiff was quite physically active and doing a lot of boxing training.  He thought that led to an improvement in her shoulder condition.  In any event, he believed he made a full recovery and his right shoulder was not troubling him in the lead up to the said date.

29      In 2007, the plaintiff had a motorbike accident, after which he was taken by ambulance to the Royal Melbourne Hospital, but not admitted.  He experienced some right shoulder pain and some psychological issues.  He thought he was off work for a few days, but did not have a lot of medical treatment and did not bring a damages claim.  As best the plaintiff could recall, the impact in the accident was to the right side of his body, but mainly his right leg and hip.  He also knocked his head.  His memory was affected for some time afterwards.  On further reflection, the plaintiff did not believe he injured his shoulder in that accident.

30      The plaintiff also had issues with Bilateral Carpal Tunnel Syndrome due to the nature of his work.

31      As best the plaintiff could recall, he was not suffering any significant symptoms or limitations as a result of any of those conditions prior to the said date.[9]

[9]The plaintiff denied any previous shoulder complaints in his Claim for Compensation dated 22 September 2011

The incident

32      On the said date, the plaintiff was working at the Kingston Hospital in Cheltenham.  When wheeling some cylinders down a ramp on a trolley, the trolley started to get away from him and he tried to restrain it.  He ended up sliding down with the trolley and then slipped and fell underneath it and the cylinders fell on top of him, in what was a very heavy and awkward fall (“the incident”).

33      The plaintiff experienced severe right shoulder and neck pain in the incident.  He also had sore knees and hands afterwards.  He attended his general practitioner, Dr Smith, at St Helena Mediplex Clinic, and was prescribed some anti-inflammatory medication.

34      The plaintiff was unable to return to work after the incident and on 22 September 2011, he lodged a WorkCover Claim.

35      The plaintiff understands that WorkCover accepted liability for his left and right shoulder conditions, scarring and an Adjustment Disorder with Depressed Mood as part of a permanent impairment claim.  In March 2015, the insurer also accepted liability for aggravation of a neck condition.

36      There was no improvement in the plaintiff’s condition after the incident and Dr Smith referred him to an orthopaedic surgeon, Mr Dallalana, whom he first saw on 26 September 2011.

37      At that stage, the plaintiff was continuing to experience right shoulder symptoms.  Mr Dallalana arranged for an MRI scan and advised the plaintiff, thereafter, that he had significant damage to his right shoulder and needed surgery.

38      Approval was obtained for that operation, which took place on 24 November 2011 (“the first operation”).  A few weeks prior thereto, the plaintiff was advised he was being made redundant.  He believed this was due to the effects of his injury.  At that stage, he had worked for the employer for some eleven years.

39      The plaintiff has not worked in any meaningful sense since his employment was terminated on 28 September 2011, on one day’s notice.

40      The employer did not like to put in WorkCover claims, so when the plaintiff did so, he told the employer – “When I’ve signed it, I’ve probably signed my death warrant.”  That was primarily the reason the plaintiff was put off work and the employer’s general manager told him he would be on WorkCover as he was having an operation in two weeks.[10] 

[10]T17

41      By letter dated 28 September 2011, the employer advised the plaintiff that his position of plumber’s labourer had become redundant as of 28 October 2011 and, as a consequence, his employment would terminate that day.  The employer noted that it was important to record that the redundancy arose as a consequence of a downturn in the industry. Whilst this letter suggested a downturn, the plaintiff explained that “these were the employer’s words”.[11]

[11]T18

42      The plaintiff did not believe there was an actual downturn around that time.  Whilst he might have told Dr Adlard that two other workers were also made redundant at that time, the plaintiff could not remember this having happened or that discussion having taken place.[12]

[12]T19

43      Although the Kingston Hospital job had been finished, the plaintiff would have been moved on to another project.  Generally, it was first on, last off.  He was lucky was always moved on, as labourers were always required on a big project.[13]

[13]T114

44      The plaintiff has never been contacted by the employer for further work, because it did not want to employ anyone with an injury.  There was no such thing as light duties for a labourer.[14]

[14]T114

45      After the first operation, the plaintiff started to also experience left shoulder problems.  He believed his left shoulder may have been injured in the incident and/or the pain was due to overuse in order to compensate for loss of use of his right arm.

46      The first operation did not seem to help the plaintiff’s right arm at all.  Thereafter, he underwent physiotherapy, which was painful at times, and he took a lot of painkillers.  He had ongoing problems with restricted shoulder movement and some numbness in his right hand.  Occasionally, he experienced numbness in his left arm, as well as his left shoulder, which remained painful.

47      The plaintiff did not believe he told Dr Adlard the first operation had helped his right shoulder to get to about 60 per cent of what it was, as he could not put a percentage on it.[15] 

[15]T21

48      The plaintiff agreed he took stronger pain medication after the first operation, not only Endone and Panadeine Forte, but also OxyContin and Oxycodone.  He was taking that range of tablets because his pain was bad.

49      The plaintiff denied that he reduced his medication intake because of an improvement in his condition.  He was advised by his wife, a nurse, that the tablets were addictive and he did not want to become addicted.  Possibly a year after the first operation, the plaintiff had stopped taking Endone. 

50      During 2012, the plaintiff had some neck problems and it was suggested he consult a neurosurgeon.  He underwent an MRI scan of his cervical spine in July 2012, and the left shoulder in May 2012.

51      Throughout 2012, the plaintiff continued to experience problems with both shoulders and remained under the care of his specialist and general practitioner.  In November 2012, Mr Dallalana recommended left shoulder surgery, for which approval was given by WorkCover.

52      In February 2013, the plaintiff suffered some sort of epileptic seizure and was referred to a neurologist.  A benign brain tumour was diagnosed and he underwent surgery for that condition on 20 February 2013.  He subsequently made a good recovery and has had no significant issues since, however, his left shoulder operation was significantly delayed. 

53      In his 2016 affidavit, the plaintiff confirmed that he had not had any further issues in relation to his benign brain tumour.  He takes Dilantin daily, which he understands is purely a preventative measure in relation to any further seizures, and it is prescribed on a cautionary basis only.[16]

[16]T109

54      Around May 2013, the plaintiff also started to develop some psychological issues as a result of his injuries and was referred to a psychologist, Ms Molan-Jeffrey, for treatment.  In addition to his physical symptoms, the plaintiff was experiencing a number of psychological issues, such as difficulty concentrating, disturbed sleep and feeling very flat and depressed, lacking motivation.  He had a feeling of isolation, lowered tolerance and increased irritability.  He was worrying a lot about the future and, in particular, his ability to cope physically and financially.  He also experienced some recurring trauma following the incident and he understood the psychologist diagnosed a Major Depressive Disorder and insomnia.

55      The plaintiff saw Ms Molan-Jeffrey three or four times.  His general practitioner continues to prescribe antidepressant medication, Cipramil, which he takes one tablet a day, of 20 milligrams.  This has helped with the plaintiff’s psychological issues to some extent.

56      After approval for the left shoulder operation had been confirmed by WorkCover, the operation went ahead at St Vincent’s Hospital on 22 September 2013 (“the second operation”).

57      Thereafter, there was some improvement but the plaintiff continued to have significant pain and restriction in activities as a result of his shoulder injuries.  He tried to manage as best he could, but was conscious not to become dependent on painkillers.  He found it very difficult to lift and engage in any strenuous physical activity.

58      The plaintiff continued to experience pain and stiffness, and trouble reaching or lifting out with his right shoulder, pushing or pulling against resistance, or carrying out heavy lifting.  He had similar problems with his left shoulder, but they were not quite as severe.  This situation has not altered in relation to his limitations in any meaningful sense.

59      As the plaintiff sat in the witness box, his right shoulder was more painful than the left.  He was rubbing his right shoulder because it was uncomfortable, and he was holding it a bit lower than the left because he “tried just to posture [himself]”.[17]  He regularly feels discomfort in his right shoulder throughout the average day.  The pain is like a toothache and he is always very much aware of it.  As a result, he attempts to limit doing anything with his right arm that would increase his pain, like reaching out or doing anything above shoulder height.  He can move his right arm out from his body.[18]

[17]T24

[18]T25

60      The plaintiff guessed he had built up a tolerance.  He had a limited range of shoulder movement compared to what he used to be able to do.  He could do general things around the house and he “made it work”.  However, he just did not instinctively do things he normally would have done.  He sort of pulls back.[19]

[19]T26

61      The plaintiff’s left shoulder is less problematic in terms of discomfort and pain than the right and it is easier for him to use it above shoulder height.[20]

[20]T27

62      The plaintiff probably has some intermittent issues with his carpal tunnel/hands more in the evenings.  If he is driving for long periods and has his arm in a certain position, he then he has to move it around and shake it.[21]

[21]T110

63      The plaintiff’s current treatment consists mainly of regular, non-prescription medication such as Nurofen and Panadol or Panadeine.[22]  He usually takes one or two tablets in the evening before going to sleep, depending on how he has been that day.[23]

[22]T22

[23]T23

64      The plaintiff also takes stronger medication.  He takes Mersyndol, which is prescribed for his wife.  In the last six months or so, he would have taken it once or twice a month when his pain was more severe.[24]

[24]T24

65      The plaintiff has a fairly good pain threshold and tries to push through pain rather than mask it.  He does not like taking a lot of prescription drugs.  Even the lighter ones would “bind him up”, and he would rather “get around the pain” himself.[25]

[25]T114

66      The plaintiff thought it was possible that the last time he saw Dr Smith about his right shoulder was in January 2015, and he had seen him since for unrelated conditions.[26]  He agreed, when examined on that date, he had a problem putting his arm out to the side but he could not really remember that examination.  He also agreed he told Dr Smith he could work around his shoulders mostly because that is how he functions.[27]

[26]T105

[27]T107

67      The plaintiff underwent extensive physiotherapy, which did not help him very much, and ultimately it was stopped because it was not leading to any further improvement.

Work

68      As of June 2015, the plaintiff had been unable to undertake any form of employment since his employment was terminated, on very light duties, immediately prior to the first operation.  He was then not having a lot of active treatment and his doctors had basically told him he had to live with his limitations and he tried to avoid taking many painkillers.[28]

[28]T107, Dr Kudelka in 2012

69      Prior to the incident, the plaintiff was doing heavy labouring work without any restrictions and was capable of earning $1,600 to $1,700 a week on a regular basis.  In June 2015, when he swore his first affidavit, he was unsure what he could then do by way of any suitable employment.  He had started doing a little bit of trading on eBay in relation to smoking devices used in food preparation, as he had developed an interest in smoking food.

70      When weekly payments stopped, the plaintiff made the decision to try to earn an income from the smoking business.[29]

[29]T109

71      The plaintiff has been unable to find any paid employment due to the effects of his injuries. He is trying to retrain and re-establish himself and has continued with his cottage business of selling cold smoking devices.  His registered business is known as the ‘Aussie Smoke Bloke’ and he advertises on the internet and eBay.  He has a Facebook site for his business and a personal Facebook site that is linked to it.[30]

[30]T29

72      The business website and the logo were designed by a graphic artist.  The plaintiff’s sons help out a bit in the business, but they are both university students. They are not formally employed and he pays them a bit of pocket money.[31]

[31]T115

73      The plaintiff has the metal smoking units made by a welder he knows.  The welder makes them in batches, the last being one hundred units.  The units can be attached to any sort of vessel that will hold smoke such as a wine barrel or a filing cabinet.[32]

[32]T34

74      In re-examination, the plaintiff produced a smoking device which weighs about 2 kilograms.  The box ultimately sent to a customer also contains a small air pump, a packet of woodchips and an instruction booklet.  The box weighs about 5 kilograms.  The plaintiff has to put two pipes (smoke inlet/outlet) in the welded unit and also add a lid.  It takes him about 20 minutes to paint a unit.

75      The plaintiff sells the boxes for $189, with a profit of $80 a unit.  In 2014, he thought the business grossed about $15,000 to $20,000. He had not extrapolated it and pulled it all apart, but he knew what his fixed costs were per component and he made $80 on each.  He also sold packets of woodchips.[33]

[33]T42

76      The plaintiff has not lodged a taxation return.  Until he does so, he would not have an exact figure of his income and expenses.  He thought his estimate of the cost of and profit from each item was very close.[34]

[34]T84

77      Having checked overnight, the gross figures for the 2015 financial year were incorrect.[35]  When the plaintiff gave that information to his lawyers, he did not have documents with him and he gave approximates as a ballpark figure.[36]

[35]T82

[36]T83

78      The plaintiff had an idea of what he turned over for the last financial year, as on the previous evening he went through his delivery book.  He had turned over just over $30,000 in the 2015-2016 financial year, which was 164 units.[37]

[37]T86

79      The plaintiff‘s invoice book from 16 April to 3 October 2016 showed sales totalling $25,511.00 which comprised 128 units plus some woodchips.[38]

[38]T87

80      The plaintiff has given his accountant all the business’ financial documents. Sales are set out in bank statements, which are accurate, because everything is paid through PayPal.[39]

[39]T41

81      The plaintiff carried out the business packaging activities in his garage and posted the completed units to retail customers.  The business has been a positive outlet for him psychologically, and he likes to feel useful. 

82      The business helps the plaintiff fill in his days.  He estimates he spends about eight hours a week working in the business, with varying hours, due to demand.  For example around Father’s Day it was quite busy and during the winter, business can be very slow.

83      Some days the plaintiff becomes all enthusiastic, like on a day when he spends a couple of hours smoking ham.  The next day, he is just exhausted and cannot do anything.  The whole idea of the business was to try and get it to a certain point.  He thought, where it is at the moment is about as much as he could handle and he did not think he could really do a lot more with it.[40] 

[40]T68

84      On average, the plaintiff would spend two days a week in the business, maybe 20 hours in total.  There were weeks when he might only dedicate two hours to the business, but on other weeks, twelve to fifteen hours; it just depended.  It was a seasonal thing.  He might sell ten units in one week,[41] but ten per week would still probably would not be enough, and it was probably more than he could manage.[42] 

[41]T68

[42]T69

85      The plaintiff becomes tired and cannot do anything in the business.  He told his doctors it is very tiring continually posturing himself to try to alleviate his discomfort so there would be days when he just could not do a thing because he was totally wrecked and ruined the next day.  He might have a good day and “fly into something and then it is a peak and trough”.[43]

[43]T69

86      The plaintiff explained that what was put to him in cross-examination in relation to his Facebook page made it look like he was flat out every day.  That activity was, in fact, spread out over 300 days.  Now he might spend an hour coating the units and then stop, whereas in the “old days” he could get all the units done.  He certainly did not wish he was now so restricted.[44]

[44]T70

87      The plaintiff disagreed that most days he was doing something in the business.

88      The plaintiff confirmed that he changed the business logo from a map of Australia to the current logo in July 2014.[45]  He had a bumper stickers made, and also a windcheater with the logo for himself although he did not walk around like a “billboard”.[46] 

[45]T44

[46]T45

89      In terms of the development of the business, the plaintiff would probably say it got its grounding or recognition in mid-2015, and he then thought it could be okay.[47]

[47]T105

90      Outlets at Frankston and Traralgon sell the smoking units and also woodchips. CE Catering Equipment in New South Wales also takes the business product.[48] Every customer orders units in batches of six.[49]

[48]T66

[49]T89

91      The plaintiff did a cooking demonstration on one occasion at a shop that sells his product in Melbourne near Victoria Market.[50]

[50]T65

92      The plaintiff denied there was a lack of candour in his description of these business activities to a number of medical examiners.[51] He would have answered questions about the business if he had been asked by various examiners and vocational assessors.  Whilst he acknowledged he was operating a business, it is not a sustainable one.[52]

[51]T71

[52]T74

93      When Ms Green’s description of the plaintiff’s activities in his business were read out to him, he said it did not sound like a description of the business; however, that was her interpretation of whatever he told her.[53]

[53]T76

94      When the plaintiff told Ms Green he thought there were jobs he could do, he did not know offhand what type of jobs, saying he could be a barrister if he was taught to be one.  He could answer a phone, but as to what sort of job he could do, he did not know.[54]

[54]T102

95      If Dr Sutcliffe had asked him about the business, the plaintiff would have told her about it.[55]  Having been told Dr Thomas’ report made no reference to the business, the plaintiff explained he would have answered questions about his business had he been asked specifically.  The same would have been the case with Dr Yong.[56]

[55]T77

[56]T79

96      The plaintiff denied he was deliberately giving an incomplete or inaccurate history.  That proposition relied on the business being a full-time one, and it was not full time.  A year had been “jammed” into cross-examination and there were days and weeks he had not sold a smoker, as was the case for the last two weeks.[57]

[57]T79

97      The plaintiff denied he was trying to give the impression that someone else did all the work and he was just an ideas man.[58]

[58]T80

98      The plaintiff does not believe the business will ever offer the sort of income and security he had as a labourer in the construction industry, where he could earn up to $90,000 per annum.  He believes if he was still in that role he would be earning about $100,000 per annum.

99      The plaintiff has not applied for any jobs since ceasing work with the employer, or sent out any résumés or job applications.  He has looked in the paper, but just to see what was there rather than looking to see whether he could do a particular job.  It disappoints him when he looks at the jobs he used to do.[59]  Looking at jobs online is not for him.  He has never used computers in the industries in which he has worked.[60]

[59]T28

[60]T28

100     Rather than looking for paid employment, the plaintiff’s focus has turned to the business.[61]  There are jobs he cannot do, and it disappoints him that that is the case.  He loved work before being injured and now feels defeated, in a sense.[62] 

[61]T111

[62]T115

101     The plaintiff’s ability to use his arms, particularly his dominant right arm, has been significantly reduced.  He continues to experience pain and restriction in relation to movement of both shoulders, particularly the right.

102     The plaintiff could not be relied upon to attend work because he has days when he just cannot do anything.  So the idea of him trying to reinvent and recreate himself was through the business and, if he can, he will.  If the business does not work, he will be back to square one again.[63]

[63]T28

103     The plaintiff is unreliable because of pain and tiredness.  He has not applied for jobs because he is not qualified in fields such as IT.  He just could not do that type of work.  Being static, sitting down in front of a computer just did not work for him anymore; he just had to move.[64]

[64]T29

104     The plaintiff has not been able to find any labouring work, or work that he is familiar with.  He has not looked because of his involvement in the business.

105     The plaintiff did not recall speaking to Mr Dallalana about going back to work.  The plaintiff agreed he had a capacity with his right shoulder for mild to moderate manual labouring tasks, but not heavy lifting or overhead tasks on a regular basis.  The left shoulder was never as damaged as the right.[65]  He could use his left more freely.[66]

[65]T103

[66]T104

106     The plaintiff could not remember talking to Dr Smith about going back to work in 2014, but he was the person the plaintiff had spoken to most about his injury.[67]

[67]T104

107     The plaintiff agreed his wife had told him he was not enthusiastic and not interested in anything, and on certain occasions, he did not feel motivated.[68]  He agreed he told Dr Smith in April 2016 that he was doing well with the smoking machines.  He felt his motivation was improving and his whole demeanour had improved.[69]

[68]T70

[69]T108

108     The plaintiff has never done a small business course and what he has learned has come from other people’s input.  If he were offered a course, he did not know whether he would do it.  For the last five years, he had been sort of starting to create himself into his current role, but did not know about the future because there were some days when he just did not function.[70]

[70]T68

Activities

109     Prior to the incident, the plaintiff was fit and well.  As of June 2015, he spent most of his time watching television and had a bit of interest in cooking. His previous hobbies included regular boxing and boxing training with his son, which he could no longer do.

110     Before the incident, the plaintiff was also a keen fly fisherman and fisherman, generally.  He had a boat that was a major source of recreation for him but he had been forced to sell it after the incident.

111     The plaintiff used to enjoy riding motorbikes but had to stop because of issues involving his shoulders.  He did a little bit of riding after the operations, but it was not enjoyable due to his shoulder pain. 

112     The plaintiff sold his motorbike after the incident as it just sat in the garage for about two years.  He tried to ride it once to the Grand Prix at Phillip Island but when doing so, his right shoulder and hand were sore.  He lost feeling in his left hand, and let go of the clutch and bumped into the back of a car.[71]

[71]T91

113     The plaintiff denied that his hand symptoms which had been investigated by Mr D’Urso stopped him from riding his bike.  Just before he lost feeling and let go with his left hand, his shoulders were very uncomfortable.[72]  He might have told Mr Simm his hand problems were part of the reason he sold his motorbike.[73]

[72]T91

[73]T92

114     After a while, the plaintiff’s hands go numb while driving, as he told Dr Chase, whom he saw in relation to an income protection claim in 2014.[74]

[74]T92

115     The plaintiff now requires a contractor to carry out mowing and gardening, which he previously did himself.  He has lost a lot of strength and fitness in his upper body and he has to lie down quite often to relieve the pressure in his shoulder and neck.

116     The plaintiff’s social life has been severely limited and he finds it difficult to become enthusiastic about matters.  He feels lonely and cut off from his previous life and feels very angry and frustrated.  He finds it difficult to keep fit. His physical and emotional relationship with his wife has been severely affected.  His short-term memory is a problem.[75]

[75]T108

117     The plaintiff feels quite depressed.  He constantly worries about the future, as all the work he has ever done is physical.  He is worried about not working, and misses doing so, because he enjoyed work and earned good money;

118     The plaintiff sleeps very badly, largely because of a nagging pain and ache in his shoulders.  He has to choose a totally different sleeping position to alleviate his discomfort, without much success.   He usually gets about four to five hours broken sleep each night, which leaves him feeling exhausted in the morning.

Surveillance

119     There were two 10-minute films of the plaintiff (taken on 23 and 27 October 2015; 19 May and 5 June 2016) in which he was not shown doing any repetitive or overhead activities with his shoulder. 

120     I advised the parties that I did not think the film was of any particular relevance and, in my view, was not inconsistent with the plaintiff’s described level of pain and restriction.[76]  No submissions were made as to credit on the basis of the surveillance films.[77]

[76]T100

[77]T95

121     The second part of film number 2, taken on 4 June 2016, showed the plaintiff at the Elizabeth Street store where his smoking unit is sold.  He denied he did a cooking demonstration on that occasion.  He had only done one demonstration on an earlier date.  The planned demonstration on 4 June 2016 reported on Facebook was postponed because of lack of interest.[78]

[78]T99

The Plaintiff’s earnings

Year	“Without Injury” Annual Gross Earnings	“Without Injury” Weekly Gross Earnings
2008	$47,804.00	$919.00
2009	$66,486.00	$1,279.00
2010	$70,076.00	$1,348.00
2011	$48,422.00	$1,513.00
2012	$90,070.00	$1,732.00 (60 per cent = $1,039.00)

Claim documentation

122     By letter dated 18 March 2015, Allianz advised the plaintiff liability had been accepted pursuant to s98(C) for left rotator cuff lesion, right rotator cuff lesion, aggravation of the cervical spine, scarring and Adjustment Disorder with Depressed Mood in relation to an injury on 23 August 2011.

The Plaintiff’s treaters

123     Dr Smith referred the plaintiff to the Austin Hospital (“the Austin”) on 13 April 2007.

124     The plaintiff then presented with a frozen right shoulder with ruptured subscapularis tendon and supraspinatus tear for assessment.  It was noted that the plaintiff was struggling through.  He was then working as a builder’s labourer.

125     The plaintiff first saw Dr Smith after the incident on 23 August 2011. The plaintiff reported falling backwards on his right side and having a gas bottle fall on him, causing an injury to his right shoulder.

126     While recovering, the plaintiff presented with left shoulder pain that he felt was also injured at the same time as the right shoulder, although it was not mentioned at the initial presentation.  When seen on 27 February 2012, the plaintiff reported he had noticed left shoulder pain for two to three months.

127     Dr Smith then thought the plaintiff would not work again as a builder’s labourer due to ongoing shoulder pain, and he required vocational assessment and retraining.  He noted the plaintiff had not complained about his neck symptoms since late 2012.

128     Dr Smith understood the plaintiff was looking at starting a small business and thought the plaintiff felt he was unsuited to an office environment due to his lack of comfort and skills using computers, and due to his possible memory and concentration issues.

129     In May 2016, Dr Smith reported that the plaintiff had not had any further assessment of his shoulder injury since 16 January 2015, when he reported he was able to work around his shoulder issues mostly, although he felt unable to do labouring work. 

130     On examination, the plaintiff had regained full range of motion and had good power of abduction.

131     Dr Smith noted the plaintiff’s depression had stabilised on medication and he had a new business venture.

132     The plaintiff was referred to Mr Paul D’Urso, neurosurgeon, by Dr Smith, and saw him on 14 August 2012. 

133     Mr D’Urso noted, while using a sling around his right arm, the plaintiff developed increasing neck, left arm, and shoulder pain, and his left arm felt weak.

134     On examination, the plaintiff had weakness in his left shoulder.

135     At that stage, Mr D’Urso thought the plaintiff was symptomatic from the cervical spondylosis and left shoulder tendinopathy and suggested some EMG nerve conduction studies. If there was any evidence of a neuropathy, he would be interested in Mr Dallalana’s opinion whether left shoulder surgery would be indicated.

136     Mr Dallalana, orthopaedic surgeon, first saw the plaintiff on 21 September 2011 for right shoulder problems.  He noted that, with the passage of time during his treatment for that condition, the plaintiff’s left shoulder became symptomatic, as did his neck.

137     Mr Dallalana diagnosed right shoulder irreparable subscapularis tear, supraspinatus tear and chronic impingement.  He also diagnosed left shoulder chronic impingement and supraspinatus tendinosis.

138     Mr Dallalana carried out right shoulder surgery on 24 November 2011, when the supraspinatus tear was fixed and a large acromial spur, due to ongoing impingement process, was removed.  Surgery was carried out for the left shoulder on 26 September 2013, where removal of the spur was carried out together with a clean-up and debridement.

139     Mr Dallalana thought the type of fall in the incident as described would have the potential to create the cervical spine related problems that the plaintiff has and are still being investigated and treated.

140     Mr Dallalana considered both shoulders showed signs of chronic impingement, which was a wear and tear type process, due to undergoing regular work.  He thought these processes would be consistent with the plaintiff’s general work requirements as a plumber/labourer.

141     Mr Dallalana linked the plaintiff’s right shoulder injury to the incident, but noted, with respect to the left shoulder, there was no specific injury, and pain commenced during the period of early post-operative recovery from the right surgery due to relative overuse.  On the left, he concluded the plaintiff had symptoms from the longstanding wear and tear alone, without any specific injury and no fresh tearing of any tendons.  He thought some symptoms would arise from the plaintiff’s cervical spine and his depression was amplifying his experience of pain and incapacity.

142     When last reviewed in October 2013, Mr Dallalana thought the plaintiff had a capacity with regard to right shoulder for mild to moderate manual labouring, as the shoulder had a degree of permanent weakness.  In his view, the plaintiff would not be able to engage in repetitive heavy lifting or overhead tasks on a regular basis.

143     Mr Dallalana considered the left shoulder was in a better condition and may well recover enough to allow moderate to heavy manual work.  He thought the early degenerative disease of the rotator cuff will render the shoulder at risk of deterioration if heavy manual labour is engaged in on a regular basis, particularly with extended overhead positioning.

144     Mr Dallalana thought, in terms of the prognosis of the right shoulder, deterioration was not uncommonly seen when permanent tearing of a tendon was noted, and further treatment in the future was possible.  The prognosis with the left shoulder was better, and there was no immediate expectation of any further treatment being required.  Mr Dallalana thought full strength was unlikely to be achieved in the left shoulder, but would be close to what would be considered normal.

145     The plaintiff was seen by Dr Memory, neurologist, on 7 February 2013 on referral from Dr Smith, having given a history on 2 February 2013 of having a generalised tonic colonic seizure. 

146     Dr Memory noted that an MRI scan showed a large right frontal meningioma.  This was removed very successfully  and the plaintiff made an uneventful post-operative recovery.

147     When last reviewed, in May 2015, the plaintiff remained seizure free on medication.  Stable appearances were shown on an EMG in 2015.

148     From the point of view of his meningioma, Dr Memory thought the plaintiff’s prognosis was very good and he had only a small risk of recurrent seizures.

149     The plaintiff was admitted to the neurosurgical unit at the Austin on 20 February 2013, having experienced a generalised seizure earlier that month.

150     The Austin reports set out that on February 2013, the plaintiff underwent a craniotomy and tumour resection.

151     The plaintiff was last seen by neuropsychologists at the Austin in April 2014, when his problems, including his craniotomy, shoulder operations and depression were noted.

152     It was reported that the overall impression was that the plaintiff’s cognitive concerns were predominantly the result of low mood and anxiety, rather than a Neurocognitive Behavioural Syndrome.  No further reviews or investigations have been undertaken at the Austin.

153     Ms Lisa Molan-Jeffrey, psychologist, saw the plaintiff on eight occasions in early 2014 on referral from Dr Smith.

154     Ms Molan-Jeffrey diagnosed a Major Depressive Disorder and Insomnia as a direct result of the plaintiff’s injury and subsequent physical limitations and pain.  While the plaintiff’s brain tumour and subsequent operation had complicated and confounded his symptoms, she thought it was the workplace injury that initially triggered his symptoms of insomnia and depression. 

155     Ms Molan-Jeffery thought the plaintiff was not currently able to work; however, she noted that had expressed a high level of interest and motivation in returning to the workforce in the future.  She thought once his pain, sleep and depression issues had resolved, the plaintiff would be capable of engaging in appropriate employment.

Medico-legal evidence

156     The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, on 1 June 2016. 

157     The plaintiff then complained of daily neck symptoms and could not turn his head fully.  He also had intermittent numbness, and pins and needles in the fingers of both hands.

158     The plaintiff reported a constant nagging ache over the right shoulder, and it became painful with sudden movements, with overreaching, and when the arm was jarred.  He had pain carrying weights, even with his hand by his side.

159     The plaintiff’s left shoulder symptoms were similar, but not as severe.  The location of pain was different and occurred over the front of the left shoulder joint.  There was minor restriction of movement of the left shoulder, with pain at extremes of movement.

160     On examination, there was no wasting around the right shoulder.  There was some restriction of shoulder movement, with evidence of persistent rotator cuff impingement and dysfunction.

161     There was no wasting of the left shoulder, and the range of movement was largely better than the right.

162     Mr Simm thought the plaintiff suffered a strain to the right shoulder which aggravated advanced pre-existing rotator cuff pathology.  He noted a partial thickness supraspinatus tear and full thickness subscapularis tear were diagnosed in 2007. 

163     At operation, the plaintiff was noted to have a full-thickness supraspinatus tear and a chronic retracted subscapularis tear. 

164     Mr Simm thought the incident fall had the potential to either aggravate or extend the supraspinatus tear.  He thought, after a painful post-operative period, there had been a reasonable level of recovery, although the plaintiff continued to have symptoms and signs of painful shoulder dysfunction.

165     Mr Simm was not able to establish the precise relationship between the surgically treated degenerative rotator cuff pathology in the left shoulder and the incident fall.  He noted there was no immediate report of left shoulder pain thereafter.  Further, when examined by Mr Kudelka in April 2012, the plaintiff reported left shoulder pain, which he attributed to predominantly using his left arm.

166     Having also considered the histories to Mr D’Urso, Mr Simm thought it possible, but unlikely, that there was an injury to the left shoulder as a result of the incident fall.  He noted the plaintiff was using his left arm for more activities after the right shoulder operation and this increased activity probably initiated symptoms from the underlying pre-existing degenerative partial thickness tear of the supraspinatus tendon.  He thought it was also possible the left shoulder pain and inhibited movement was due to referred pain from the cervical injury.

167     Mr Simm noted there was no initial report of a cervical injury, but shortly after the incident fall, the plaintiff reported cervical pain while wearing a sling.  Mr Simm thought the persistent cervical pain probably related to degenerative disc pathology, mostly at C5-6, but also C6-7.  He thought it possible, as a result of the incident, there was a cervical injury with aggravation of the plaintiff’s pathology, as those symptoms came on soon thereafter.  Mr Simm also thought it was possible they were initiated by wearing a sling.

168     As a result of the surgically treated bilateral shoulder conditions, Mr Simm thought the plaintiff was permanently incapacitated for his pre-injury work, including as a carpet layer, truck driver and labourer/trade assistant.  He thought the plaintiff was now confined to relatively light work with both upper limbs close to his body and below shoulder height.

169     In isolation, Mr Simm thought the cervical spine condition would incapacitate the plaintiff for these occupations and any alternative heavy manual work.  He considered the plaintiff needed relatively light work with his upper limbs and work that allowed some flexibility of his cervical spine.  This impairment was permanent. 

170     Mr Simm considered the plaintiff’s condition had stabilised and he presented with mild to moderate painful dysfunction of the neck, and both shoulders, and his prognosis was for his condition to persist as described.

171     The plaintiff was examined by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 22 June 2016.

172     Noting the incident circumstances, Dr Thomas reported that, in view of the problems with his right shoulder, the plaintiff tended to use his left more and subsequently developed left shoulder pain, which came on towards the end of 2011.

173     On examination, the plaintiff complained of a nagging ache, like a toothache, in both shoulders, with the right worse than the left.  Depending on what he did from day to day, the ache would become more significant and more problematic.  The plaintiff had some pain from the shoulders, running down the arms, but generally, above the elbow region and not below.

174     On examination, the right shoulder was slightly wasted compared to the left, and it was tender over the anterior aspect of the subacromial area.  Range of movement was mildly limited.

175     There was no obvious wasting of the left shoulder and it had a full range of movement and, although slightly irritable, there were no impingement signs.  Neck movements were mildly limited non-specifically and did not cause shoulder pain.

176     Dr Thomas thought, on a background of previous right shoulder problems, the plaintiff sustained an aggravation in the incident.  The previous investigation suggested a subscapularis tendon problem and, in fact, the operation in 2011 revealed a chronically retractable irreparable tear of the subscapularis.

177     As such, the subscapularis tear was almost certainly old and, in Dr Thomas’ view, the incident probably took the supraspinatus tendon from being slightly degenerate to fully torn. 

178     Dr Thomas did not believe, per se, that the plaintiff had suffered an injury to his cervical spine.  By the nature of his persistent discomfort and aching in the right shoulder, Dr Thomas thought the plaintiff had a limited work capacity. In his view, the plaintiff had a significant irritable right shoulder which, although range of movement was only mild to moderately limited, was still very irritable and, as such, he had difficulty using his right upper limb in a functional capacity.  Dr Thomas considered the plaintiff’s previous work as a carpet layer, and as a labourer moving bricks manually, were not options for him.

179     Dr Thomas noted the plaintiff had basic education only, and was then aged fifty-three.  Retraining was unlikely to lead to any increase in the plaintiff’s vocational options.  Effectively, Dr Thomas thought the plaintiff needed to work in a sedentary or semi-sedentary position, something he had never done previously, and lacked skills for.  As such, the plaintiff still had significant vocational limitations stemming predominantly from the right shoulder problem, which seemed to be the dominant issue.

180     In terms of the left shoulder, Dr Thomas thought the plaintiff had the capacity to perform manual work with a lifting limit of 5 kilograms frequently and 10 kilograms infrequently, predominantly between waist and chest height and, infrequently, above chest height and with the limit of 5 kilograms only, above chest height.

181     Dr Thomas thought the plaintiff’s capacity for work relating to the right shoulder was limited to semi-sedentary positions, but he lacked skills and experience in those areas and would need to work in a physical capacity.  With the right shoulder, he would be limited to lifting 2 kilograms frequently between waist and chest height and would need to avoid exertion of the shoulder beyond 30 degrees from the side of his body.  As such, Dr Thomas thought light process work might be an option. 

182     Dr Thomas considered the nature of the plaintiff’s right shoulder limited his ability to work full hours per week.  He thought the plaintiff had a capacity for physical work of a light process nature as outlined, up to, but not beyond, four hours, five days per week.  An increase in the physical requirements would lead to a reduction in the hours the plaintiff could work.

183     Dr Thomas thought the plaintiff’s incapacity, which was substantial, but partial, could be considered permanent.  Treatment was palliative support with no expectation for significant functional change in time and the prognosis was for ongoing pain with associated disability.

184     Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 8 September 2016.

185     The plaintiff gave her a history of the incident and subsequent right shoulder pain and then the onset of left shoulder pain, with the pain subsiding somewhat.

186     The plaintiff complained of constant right shoulder pain and, to a lesser extent, on the left anteriorly and posteriorly.  He also had pain in the cervical spine.  The pain was at an intensity of 5 out of 10 on the right and 4 out pf 10 on the left.  It was aching in nature, and the plaintiff described decreased power in the left arm after surgery and symptoms in the right hand of sensory change.

187     The plaintiff advised that he was conscious of pain all the time.

188     On examination, there was restricted movement of the neck and both shoulders.  Dr Sutcliffe thought the plaintiff sustained an injury to the right shoulder and, subsequently, onset of left shoulder pain during the incident.

189     Dr Sutcliffe diagnosed a rotator cuff injury to the right shoulder, requiring decompression of the acromioclavicular space.  On the left, the plaintiff required similar decompression.  She also diagnosed a pre-existing disc derangement and foraminal stenosis at C5-6.

190     Whilst the plaintiff had vast work experience of manual heavy work, Dr Sutcliffe thought he has no capacity now, or into the future, to undertake any occupation he previously did and no capacity to undertake employment in the open market.  She did not believe he could present in a consistent, productive and efficient manner in open employment.

191     Dr Sutcliffe thought the plaintiff had no capacity to perform manual handling of a heavy, moderate, or a mild nature, in a repetitive or a persistent manner, without the risk of re-injury.

192     Dr Sutcliffe disagreed that the plaintiff had the ability to undertake mild to moderate manual handling activities suggesting employment.  She noted the plaintiff’s education, work experience, and a lack of experience in sedentary-type occupations.  She did not believe he could work as a rental sales person, security officer, gatehouse, front desk or control rooms, or road traffic controller, as a result of the manual handling required. 

193     Dr Sutcliffe noted that in the rental sales person role, manual handling was required regularly.  This included lifting items and also cleaning and maintaining items.

194     Security officer roles, gatehouse roles, front desk, or control room roles, are achieved through progression in security work and not as an initial introduction to work in that industry.

195     Gatehouse roles are a combination of sedentary and active roles, and in many gatehouse situations inspection of vehicles is required and even climbing up onto loads. Thus the plaintiff would not have capacity for this occupation.

196     Dr Sutcliffe noted road traffic controller work would require prolonged standing, holding traffic direction signs and also putting out heavy signs at the beginning and end of the restriction zone, lifting them back onto trucks or utilities.  The role essentially required heavy manual handling.

197     Dr Sutcliffe noted the roles of receiving and despatch clerk were those of inspecting and checking goods, prolonged standing and walking, use of computers and climbing onto loads or into containers.  She thought the plaintiff had no capacity for any of those jobs on a full or part-time basis, presenting regularly and efficiently.  With any of those activities, there would be an escalation of pain and further restriction of movement, and she believed the plaintiff would be at risk of re-injury.

198     Dr Sutcliffe thought the plaintiff would require extensive retraining, particularly in computer skills, if he was able to undertake employment for reasonable hours of work with no manual handling.

199     Dr Sutcliffe noted, previously, the occupation of café worker was included in suitable employment and she thought those tasks were beyond the plaintiff  because of the long hours of work involving lifting and carrying, pushing, pulling, twisting and turning, unloading goods, stacking goods, carrying trays, containers of glass, crockery, loading dishwashers and unloading them.

200     Dr Sutcliffe thought the plaintiff had had a very substantial adverse impact on his employment capacity and had no capacity for pre-injury employment, now or into the future.  She thought he had limited capacity to undertake employment as a result of his shoulder injuries, but could work in communication-type employment alone if he had appropriate training, which would need to be extensive.

201     Dr Sutcliffe thought the prognosis was poor and there was likely to be further progression, and the plaintiff would need to continue analgesics and advice about modification of activity in relation to the diagnosed organic injuries.

202     Dr Weissman, psychiatrist, examined the plaintiff on 6 June 2016.  Following examination, he concluded the plaintiff was suffering from a Mild Chronic Adjustment Disorder with Depressed and Anxious Mood secondary to his employment.  He did not consider there was an actual psychiatric incapacity for work.

Investigations

203     A right shoulder ultrasound was organised by Dr Chua on 28 September 2005.  It was reported there was a partial thickness supraspinatus tendon disruption and mild biceps tenosynovitis.

204     Dr Smith organised an ultrasound of the plaintiff’s right shoulder in April 2007.  It was reported there was a ruptured subscapularis tendon and a very small supraspinatus tendon tear, and markedly restricted abduction and forward flexion.

205     Following a right shoulder ultrasound organised by Dr Smith in August 2011, it was reported there was biceps tenosynovitis, intact rotator cuff tendons and subacromial bursitis.

206     There was an MRI scan of the right shoulder organised by Dr Dallalana on 30 September 2011.

207     It was reported there did not appear to be substantial biceps tendinopathy.  All but the most inferior third subscapularis tendon fibres were chronically torn and retracted, and this had resulted in severe muscle atrophy of the superior two thirds of the muscle involving the anterior half of the peripheral supraspinatus tendon, insertional tearing, but it was thought likely that most medial fibres still remained attached and therefore, the tear may not be visualised from the articular surface.  Immediately beyond the tear, it was noted the supraspinatus tendon fibres were heterogeneous, indicating peripheral zone tendinopathy.  There was slight limitation of the subacromial space, with only minimal osteophytic under surface of the acromion and slightly thickened acromial attachment of the coracoacromial ligament.

208     An MRI scan of the left shoulder was organised by Mr Dallalana in May 2012.

209     It was reported there was a higher grade partial thickness less than 50 per cent, tear of the supraspinatus tendon involving both articular and bursitis surface fibres.  There was mild subscapularis and insertional tendinopathy. 

210     Dr Smith organised an MRI scan of the cervical spine in July 2012. It was reported there was moderate to high-grade right and moderate left facet joint foraminal stenosis at C5-6 due to uncovertebral joint disease.  There was less foraminal stenosis bilaterally at C6-7.

Vocational evidence

211     Ms Katrine Green, psychologist, carried out a Vocational Assessment in September 2016.

212     Having regard to the medical opinions, the analysis of the occupations suggested by Recovre and the physical demands of the core duties, Ms Green concluded that due to the plaintiff’s bilateral shoulder injury and current physical capacity, he was unable to perform the inherent duties of his previous occupation, or the inherent duties of any suitable employment within the foreseeable future.

213     In that report, Ms Green also commented on the suggested jobs of security work, café worker, regulatory customs officer, rental sales person and traffic controller and concluded they were not suitable for the plaintiff.

The Defendant’s evidence

Medico-legal evidence

214     Mr Kudelka, orthopaedic surgeon, saw the plaintiff on 23 April 2012.  Having told Mr Kudelka of the incident injury and right shoulder surgery, the plaintiff also reported occasional numbness in the opposite left hand, and as he had been predominantly using his left hand, his left shoulder was beginning to become painful.

215     On examination, the plaintiff’s left shoulder had a nearly full range of movement, but there was some pain approaching full abduction and rotation.  Movement of the right shoulder was limited.

216     Based on the plaintiff’s history, Mr Kudelka thought his right shoulder symptoms related to the incident.  He noted the plaintiff also advised that the incident had severely jarred his neck.

217     Mr Kudelka then thought the plaintiff could not return to pre-injury duties as a labourer, but he had a limited current work capacity, as long as excessive mechanical strain on the right shoulder, particularly at or above the horizontal, was not required.

218     He considered the jobs suggested in the NES Report were suitable, provided repetitive strains on the right shoulder were avoided.

219     Mr Ian McInnes, general surgeon, examined the plaintiff on 22 October 2012.

220     The plaintiff told him of the right shoulder injury in the incident.  It had markedly improved post surgery, and the plaintiff said it was approximately a 50 per cent improvement, but he still had some restricted movement.

221     The main problem now was the left shoulder.  After the right shoulder operation, the plaintiff initially had pain and restricted movement in the left shoulder and he recently had some physiotherapy and investigations.

222     Mr McInnes noted that at present, the plaintiff’s main problem was that he had pain in the base of his neck and his left shoulder.  The right shoulder had only minimal pain and was relieved, usually, by movement. 

223     On examination of the right shoulder, there was some palpable tenderness anteriorly and some restriction of movement.  There was slight tenderness in the left shoulder and restriction of movement in abduction and internal and external rotation.  In the right, there was slight limitation of abduction and flexion.

224     Acknowledging that the right shoulder injury related to the incident, Mr McInnes thought probably the left shoulder related to the same incident and had been aggravated by increasing use following the damage to the right shoulder.  He thought the injury to the cervical spine was probably natural degeneration and unrelated to the injury.

225     Mr McInnes considered the jobs suggested in the 2012 vocational report were appropriate, with the exception of security work, which may involve extensive use of both shoulders and could possibly be unsuitable for the plaintiff.

226     In a supplementary report dated November 2012, Mr McInnes advised that the plaintiff had the capacity to perform suitable alternate duties.  He noted, however, that the plaintiff had continuing trouble from both shoulders, mainly the left, and he believed any work undertaken should be with limited lifting to 2 kilograms, no heavy pushing or pulling, and no activity above shoulder height.

227     Dr Clive Kenna, consultant in musculoskeletal pain management, examined the plaintiff in August 2013.

228     The plaintiff told him the initial problem was the right shoulder, but now he had subsequently developed left shoulder problems.

229     The plaintiff stated he injured both shoulders in the incident and lost his footing while moving a trolley and fell, subsequently taking the weight in an awkward position.

230     On examination of the left shoulder, Dr Kenna noted there was a surprisingly good range of movement and some reduction of right shoulder movement.

231     Dr Kenna noted the plaintiff had been diagnosed with a brain tumour and was to have radiotherapy.  He was awaiting left shoulder surgery.

232     Dr Kenna noted it was acknowledged that the plaintiff sustained injuries to both shoulders.  The plaintiff was pleased with the result of the right shoulder surgery and hoping for a similar result in relation to the left.

233     Given the diagnosis of a brain tumour, Dr Kenna thought the shoulder condition was irrelevant now, from the point of view of the plaintiff’s work capacity.  He considered the plaintiff had functional mobility of the right shoulder, good functional mobility of the left but, with associated pain that would not, in itself, result in a total incapacity.  He suggested the plaintiff immediately be transferred to a Disability Support Pension because of his brain condition.  He thought the plaintiff would not be working at that point, regardless of his shoulder, due to his far more serious general health problems.

234     Dr Kenna considered the plaintiff had bilateral shoulder pathology related to the incident.  Following the left shoulder surgery, Dr Kenna did not believe the plaintiff would have capacity for suitable employment in view of his general health issues.  Purely in relation to his shoulder conditions, the plaintiff was fit for work on light, or modified, or alternate duties.  Dr Kenna commented that the Vocational Assessment Report was simply now not relevant, in view of the events that had overtaken it.

235     Dr Robin Chase, occupational physician, examined the plaintiff on behalf of Cbus Claim Services in January 2014.

236     Dr Chase thought the plaintiff sustained an injury to both rotator cuffs with a partial tear of the supraspinatus and a full-thickness tear of the subscapularis on the right, for which he had surgery.  He had a similar impingement syndrome on the left in relation to which he also had surgery.  He had been left with residual loss of range of motion of both shoulders which was probably related to post-operative changes plus or minus capsulitis.

237     Dr Chase thought the plaintiff had some underlying degenerative changes in the cervical spine that may have been temporarily aggravated by the incident fall but, by his own admission, the plaintiff experienced minimal symptoms from his neck and was not worried about it.  He experienced numbness in both hands so it is unclear whether that was related to his neck or a low-grade bilateral carpal tunnel syndrome.

238     Dr Chase thought the plaintiff had a residual work capacity as a result of his shoulders.  He could do work provided he observed bilateral lifting restriction of 8 kilograms and avoided above-shoulder lifting.  He thought the plaintiff could work in retail or light bench or process work within those restrictions such as working as a driver.

239     Mr Peter Scott, senior consultant surgeon, examined the plaintiff in August 2014 for the purposes of an AMA Assessment.

240     The plaintiff told him of suffering discomfort and pain in his shoulders after the incident. 

241     On examination, the plaintiff complained of pain and stiffness in his right shoulder and trouble reaching out or pulling or pushing against resistance or carrying any heavy items.  There were similar but less severe symptoms in the left shoulder.  There was mildly reduced range of movement of both shoulders. 

242     Mr Scott diagnosed bilateral rotator cuff lesions consistent with the workplace incident.  He thought the plaintiff’s condition had stabilised.

243     There was a further AMA Assessment by Mr Scott in March 2015 addressing the plaintiff’s neck complaint.

244     Mr Scott noted, at no stage during his 2014 examination, did the plaintiff mention any neck problem or any injury having occurred in the incident.

245     Mr Scott thought there was an absence of clinical signs suggestive of any significant underlying neck disorder, with full neck movements with minimal discomfort, and no evidence of any upper limb radiculopathy.  He noted that the plaintiff now stated he had neck pain since the incident.

246     Dr Yong, specialist occupational physician, first examined the plaintiff in November 2015.

247     The plaintiff then described a nagging ache in his right shoulder and some radiation into his neck.  There was some left shoulder discomfort, but that had reduced in severity compared to the right.  Due to the shoulder pain, he changed his posture regularly.  The discomfort affected the plaintiff’s sleep.

248     Dr Yong noted the plaintiff stated he was referred for vocational assessment and recommended doing a computer course, but he did not undertake this and he was currently not looking for work.

249     Post right shoulder surgery, the plaintiff stated his right shoulder pain started to reduce and he noticed some increasing left shoulder pain, which he felt was present for some time.

250     A few years ago, the plaintiff had started to have some symptoms of a lower mood, and was diagnosed with Depression and commenced taking antidepressant medication, which he continued to take.

251     The plaintiff said he had no other significant past shoulder problems.

252     On examination of the right shoulder, there was no swelling and there was tenderness.  Power was mildly reduced.  There was no wasting or swelling of the left shoulder.  There was tenderness.  Power was mildly reduced.

253     In terms of the cervical spine, there was no specific tenderness to palpation and range of movement was not unreasonable.

254     Dr Yong summarised the plaintiff’s conditions as follows:

§right shoulder rotator cuff dysfunction after surgery

§left shoulder dysfunction after surgery to treat a rotator cuff injury.

255     The plaintiff stated he was currently tinkering around designing a cold smoker to smoke foods such as fish and cheese so he could sell that device on eBay.

256     Dr Yong thought the prognosis for the plaintiff’s shoulder condition should not be unreasonable, with participation in an activity-based recovery program.  The plaintiff should do home-based exercises, regular walking, and be as active as possible within his pain limit. 

257     Dr Yong noted that the plaintiff stated he had the onset of his left shoulder condition since soon after the injury, but the right shoulder was more prominent and this received more medical treatment.  Assuming there was no contradiction with this history of left shoulder symptoms, Dr Yong thought there was a temporal relationship between the incident and the left shoulder condition.

258     Dr Yong considered the plaintiff would not have a capacity to work his pre-inury duties. He considered the plaintiff had a current capacity to work within the following restrictions:

§avoid above shoulder height tasks or reaching repeatedly

§avoid repeated firm pushing and pulling

§avoid lifting more than 5 kilograms repeatedly

§initial reduction in working hours.

259     Dr Yong thought a certificate from Dr Smith dated 6 March 2014 set out reasonable restrictions consistent with his own opinion.

260     Dr Yong thought the role of a security officer in a control room or gatehouse, dealing with the public and customers, would likely comply with restrictions and would be reasonable.  A graduated return to work would be appropriate, starting on four-hour shifts, four days per week, and increasing to pre-injury hours over four to six months.

261     Dr Yong described the role of a café worker, and noted that sometimes the tasks may exceed the restrictions, such as carrying bulk food items, or reaching, or forceful pulling and, therefore, that role was unlikely to comply with the current restrictions.

262     As to inspector and regulatory customs officer, Dr Yong thought there might be a requirement to inspect and do a range of paperwork and sometimes to handle weights in excess of weight restrictions, thus that job would require individual assessment.

263     Dr Yong described the duties of a traffic controller and noted that, sometimes in that role, there might be a need to erect and take down metal signs.  Therefore that job would also require individual assessment.

264     Dr Yong noted there was no evidence that the plaintiff’s shoulder conditions were active recently, prior to the reported incident, and the plaintiff was able to work in the required role until thereto.

265     On review in August 2016, the plaintiff reported persisting bilateral shoulder symptoms.  He tried to avoid precipitating actions, and that was generally when reaching above shoulder height.

266     The plaintiff described a right shoulder ache similar to a toothache radiating, sometimes to his right upper arm and, sometimes, a tight feeling that was uncomfortable.  He had similar symptoms, but of reduced severity, in his left shoulder.

267     The plaintiff told Dr Yong he had not returned to the workforce and was not doing any retraining.

268     The plaintiff stated he spends his time tinkering in the garage.  He was able to weld a small frame less than a foot in size.  He also had a sideline where someone builds cold smokers for him.  That was a metallic part which blew cold smoke over food.  He sold them on eBay.  He did not do the manufacturing.

269     The plaintiff said he also spent the day reading books, using a computer to follow eBay, smoking food and visiting his friends or brother.  He varied his posture regularly between sitting, standing and walking, and his tolerances were not unreasonable.  He could drive for an hour.

270     On examination, there was tenderness to palpation on the right shoulder, some restriction of movement and power was mildly reduced.  There was mild tenderness to palpation of the left shoulder, mild reduction of power and some restriction of movement.

271     There was no swelling or tenderness of the cervical spine, and some restriction of movement.  There was no neurological abnormality.

272     In addition to the earlier diagnosis of the two shoulder conditions, Dr Yong noted the plaintiff also presented with a psychological comorbidity, requiring ongoing modalities of treatment.

273     Dr Yong noted the plaintiff’s reported activities were similar to those on the earlier examination and his findings were similar to the last assessment.

274     The plaintiff was examined by orthopaedic surgeon, Mr Michael Dooley, in June 2016.

275     The plaintiff told Mr Dooley he experienced left shoulder girdle pain and had surgery thereafter.

276     On examination, the plaintiff complained of an ongoing ache in both shoulders, as though he had a toothache.  He slept poorly because of the pain which he described as moderate. 

277     The plaintiff said he was trying to invent himself.  His father was an engineer and made cold smoke generators for food.  The plaintiff was trying to sell those online.  Mr Dooley noted the plaintiff said he lacked motivation after suffering Depression.

278     The plaintiff gave a past history of a right shoulder injury in 2005, a motorbike accident in 2007 and a brain tumour.

279     Mr Dooley believed, in the incident, the plaintiff sustained a soft tissue injury in the right shoulder.  That injury involved some aggravation of the underlying degenerative rotator cuff disease, with pre-existing tearing of the part of the supraspinatus tendon and a major tear of the subscapularis tendon.

280     Mr Dooley thought the plaintiff’s left shoulder condition was naturally occurring and related to degenerative rotator cuff disease noting, as far as he could tell, the plaintiff did not sustain a specific injury to that shoulder in the incident.  He did not believe symptoms developed in the left shoulder were as a consequence of favouring or overuse.

281     Mr Dooley noted it was clear the plaintiff had worked hard on his recovery and, overall, he had maintained an excellent range of motion of both shoulders.  Mr Dooley thought the pain noted on movement was consistent with symptomatic degenerative rotator cuff disease.  As far as he could tell, there had been no specific injury to the cervical spine.

282     Mr Dooley thought the plaintiff would continue to note aching-type pain with the continuing involvement of the underlying degenerative rotator cuff disease separate from a work-related aggravation.

283     Mr Dooley thought the plaintiff would not able to carry out heavy physical activity, or activity that involved a lot of duties at and above shoulder level.  He considered the plaintiff would have the physical capacity to work as a passive security officer, customs officer and traffic controller.  He thought any return to suitable work would need to be on a graduated basis and, in time, one could more accurately estimate the number of hours that would be able to be worked.

284     Mr Dooley also thought the plaintiff would have a physical capacity to work as a receiving and despatch clerk, rental sales person, security officer and road traffic controller, on the same basis.  He would not have expected these conditions to restrict the plaintiff’s ability to work generally.

285     Given the plaintiff’s pre-existing right shoulder problems, Mr Dooley thought it possible he would not have been able to carry out his pre-injury duties to around the age of sixty and beyond.

286     Dr Adlard, psychiatrist, examined the plaintiff in September 2013. 

287     Dr Adlard reported that the plaintiff told him that two other workers were made redundant at the same time as him in 2011.  Further, he noted the plaintiff told him that right shoulder surgery had helped his shoulder to get to about 60 per cent of what it was.

288     Dr Adlard thought the plaintiff had an Adjustment Disorder with Depressed Mood and required ongoing antidepressant medication. From a purely psychiatric perspective, he considered the plaintiff could return to work when he was physically able, depending on his physical state.  From a purely psychiatric perspective, he could work pre-injury alternative duties, but when combined with his shoulder complaint, Dr Adlard doubted the plaintiff had a current work capacity.

289     Dr Timothy Entwisle, psychiatrist, examined the plaintiff on 3 October 2014.  He then diagnosed an Adjustment Disorder with Depressed Mood, which interfered with his activities of living and social function, in concentration and occupation.

290     Dr Entwisle re-examined the plaintiff on 15 September 2015.

291     Dr Entwisle then made a similar diagnosis.  He noted the plaintiff impressed as a man of somewhat rigid temperament, who had worked physically hard throughout his life.  He continued to struggle to make adjustments to his current unemployed status.  He was well supported by his wife, who attempted to involve him in her interests and activities.  The plaintiff acknowledged his mood had improved with medication.

292     The plaintiff was not employed, and while he did engage in some eBay activities, that was not a financially viable working endeavour, based on his account.  Dr Entwisle thought the plaintiff impressed as a man who was motivated if he could be assisted to organise his life and develop an approach to assist him move forward.

293     Dr Entwisle considered the prognosis with psychological intervention was reasonable.

294     From a psychological perspective, Dr Entwisle believed the plaintiff had a work capacity, provided he engaged in appropriate psychological intervention.  From a psychiatric perspective alone, he thought the plaintiff had a capacity to work as a security officer, café worker, inspector and regulatory customs officer and traffic controller.

Vocational evidence

295     An NES Vocational Assessment Report was carried out by Recovre on 14 March 2012.

296     Identified suitable employment options for the plaintiff in order of priority were security officer ($850 per week); café worker ($700); inspector and regulatory customs officer ($1,087) and traffic controller ($800). 

297     The plaintiff was interviewed by Ms Robyn Willet of Recovre, on 13 October 2015, to assist in identifying relevant vocational information.

298     The following vocational options were identified as suitable for the plaintiff: receiving and despatch clerk ($1,050 to $1,145 gross per week); rental sales person – care hire or plant machinery and equipment hire ($820 to $1,052); security officer – gatehouse, front desk or control room roles ($1,065 to $1,235) and road traffic controller ($926).  Those jobs had been assessed and were considered to be vocationally suitable for the plaintiff and were consistent with the noted restrictions.

299     In terms of English language and computer skills, it was noted the plaintiff reported to possess rudimentary computer skills, with the ability to utilise the internet, email and online buying and selling websites such as eBay. The plaintiff did not offer any specific vocational options for future, and noted self-employment as his preferred option.

Claim documents

300     By letter dated 23 October 2013, the plaintiff was advised by Allianz that his weekly payments were to cease, as he had been in receipt of payments for 130 weeks and had a current work capacity.

301     It was noted that that decision followed the Recovre 2012 report and examinations by Dr Kudelka, Dr McInnes, Dr Smith, Dr Kenna and Dr Adlard.

Overview

302     There is no dispute that the plaintiff suffered a compensable injury to his right shoulder in the incident. It has been diagnosed as a tear of the right supraspinatus tendon that was treated surgically in November 2011.

303     I accept the medical evidence that the effects of this work-related injury are ongoing, with Mr Dooley the only practitioner of the view that the plaintiff’s current shoulder symptoms relate to the degenerative process.

304     There is no suggestion that the plaintiff’s right shoulder condition lacks a substantial organic basis.[79]

[79]See Meadows v Lichmore Pty Ltd [2013] VSCA 201

305     Further, while the plaintiff had episodes of right shoulder pain in 2005 and 2007, counsel for the defendant, in opening, conceded that there was really no evidence of significant shoulder problems prior to the incident, with the plaintiff being able to work full time in unrestricted heavy duties. Thus this is not an aggravation case involving the principles stated in Petkovski v Galletti.[80]

[80] [1994] 1 VR 436

306     Counsel for the defendant indicated the issue of pain and suffering was very much alive.[81]

[81]T5

307     Reliance was placed on the plaintiff’s history to Dr Adlard that following the first operation, his shoulder had returned to 60 per cent of its pre-injury condition.[82] Further, in January 2015, when he last saw the plaintiff for his right shoulder, Dr Smith found a full range of movement.[83]

[82]T136

[83]T134

308     Whilst there may be significant restrictions, it was submitted these are not more than significant or marked.[84]  The plaintiff has retained the ability to engage in a range of activities, he is able to drive and attend tradeshows and is enthusiastic about his smoking business.  Although he would have problems fly fishing as a result of his shoulder injury, difficulties riding a motorbike related to his carpal tunnel condition.[85]

[84]T134

[85]T135

309     Taking into account all the evidence, in particular the lack of complaint to Dr Smith, the plaintiff’s present limited medication intake, the lack of specialist referral and physiotherapy treatment and the significant improvement following the first operation, it was submitted any right shoulder impairment was not “serious”.[86]

[86]T136

310     In relation to pain and suffering, counsel for the plaintiff relied on the plaintiff’s complaints of ongoing significant right shoulder pain and difficulties with sleeping and interference with physical activities as a result thereof.  Further, there was no challenge to the plaintiff’s evidence about his inability to fly fish or box, and whilst his arm problems may affect his ability to ride a motorbike, the plaintiff’s right shoulder also cause him problems in this regard.[87]

[87]T145

311     Whilst counsel for the plaintiff conceded that the plaintiff had some residual capacity for work, he was not going to be the “next big Bill Gates and his smoking business was not going to take over the world”[88] and he had established the requisite loss of earning capacity of 40 per cent.

[88]T9

Credit

312     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[89]

“… 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.”

[89](2010) 31 VR 1 at paragraph [12]

313     Counsel for the defendant conceded the plaintiff “at first blush no doubt struck as a reasonably sort of laidback and straightforward person” who has had shoulder surgery and there was a “natural inclination” to accept what he says about his restrictions.  However, it was submitted, on closer scrutiny, what the plaintiff said about his level of business activities was misleading to all witnesses. It was submitted that in his carefully worded affidavits, he underplayed the extent of the business and in the second affidavit, he suggested attempting alternate employment post incident when that had not in fact taken place.[90]

[90]T121

314     In these circumstances, it was submitted the plaintiff had not been frank about his business activities, the true level of which indicated a capacity for employment.[91] The reality was, as his viva voce indicated, that the plaintiff’s business really gained a foothold and recognition as of June 2015.  Prior thereto, there was significant preparation undertaken by the plaintiff marketing the business, arranging a logo, contacting suppliers and getting the items on the shelves, activities which the plaintiff minimised.[92] 

[91]T4

[92]T121

315     It was submitted the plaintiff has never given a proper history to doctors such as Dr Thomas, Dr Weissman, Dr Sutcliffe, Dr Entwisle, Dr Yong and Mr Dooley or when interviewed by Katrine Green.  His explanation that he answered the questions he was asked about the business should not be accepted.

316     It was submitted there was a stark contrast between what was disclosed in the witness box about the business and the plaintiff’s histories to those examiners, and that this credit issue affected all the medical opinions.[93]  What the plaintiff actually did in the business, including carrying out cooking demonstrations, was missing from the histories.[94]

[93]T123

[94]T124

317     While counsel for the defendant appreciated that many Facebook entries did not mean a significant business, it was submitted that those entries showed the plaintiff was doing many different things with his time, including cooking, developing new techniques and posting material relating to the business on Facebook multiple times.[95]

[95]T124

318     In response, counsel for the plaintiff submitted the plaintiff had not attempted to hide or down play the level of his involvement in the business.  The level of detail in the plaintiff’s description of his business activities varied.  While it is probably fair to accept some criticism that the plaintiff may have played down his business activities a bit, it is a fledgling business and it has evolved.  If the plaintiff had wanted to hide anything about the business, he would not have mentioned it in his affidavits and he would not have “sprayed” it all over Facebook.[96]

[96]T144

319     I accept the plaintiff considers the business is really a hobby through which he is trying to reinvent himself, but he is limited in what he can do in that role.  When closely examined, the Facebook entries are not inconsistent with his evidence as to the time he spends in the business and are not reflected in significant earnings.

320     Also, as I indicated during the hearing, I did not consider the surveillance film showed a level of movement or activity inconsistent with the plaintiff’s evidence of pain and restriction.[97]

[97]T100

321     Overall, whilst there may have been some understatement on the plaintiff’s part as to his business activities, I accept he was a generally credible witness who has tried to get on with his life as best he can post injury.

Pain

322     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[98]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors).”

[98](supra) paragraphs [11]-[12]

323     I accept that since the incident, the plaintiff has suffered right shoulder pain.  On a daily basis, he is very much aware of a toothache-like discomfort.  As a result, thereof, he limits the use of his right arm to prevent aggravating the pain further.

324     The first operation provided the plaintiff with little symptomatic relief.  In the early days thereafter, he required heavy painkilling medication but, of more recent time, he weaned off that type of treatment for fear of addiction and now takes over-the-counter medication when necessary.[99]  When his pain is more severe, he takes Mersyndol, which his wife is prescribed for her own medical condition.[100] 

[99]T146

[100]T143

325     Due to his right shoulder injury, it is not disputed that the plaintiff has restricted movement of his shoulder, and he is unable to engage in over the shoulder activities or heavy lifting requiring use of his right shoulder.[101]  He has learned to “make it work,” pulling back from movements he previously did instinctively.[102]

[101]T135

[102]T26

326     As such, it is not disputed that the plaintiff, as a result of his shoulder pain and these restrictions, no longer has the capacity for heavy, unrestricted physical work that he previously engaged in.

327     When I suggested to counsel for the defendant that the inability to do physical work could be considered a serious consequence, counsel accepted it was a significant consequence, but account had to be taken of the plaintiff’s ability to engage in other activities about which there was little complaint.[103]

[103]T135

328     However, in my view, the inability to perform unrestricted heavy physical work is a serious consequence for a fifty-four-year-old right-hand dominant man who has done only manual work.

329     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 40 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).

330     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.

331     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

332     “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.

333     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.

334     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. See Barwon Spinners Pty Ltd & Ors v Podolak.[104]

[104](supra) at paragraph [70]

335     I am therefore required to determine a “without injury” earnings figure.

336     There was some dispute between the parties as to the appropriate “without injury” earnings figure.

337     Counsel for the plaintiff suggested the base figure was $1,700 per week, the average amount the plaintiff was earning in the financial year prior to the incident and, also, at the time thereof.[105]

[105]T140-141

338     The plaintiff had actually demonstrated the capacity to earn this sum, unlike in TheHerald & Weekly Times Ltd & Anor v Jessop[106] where the plaintiff had the capacity (emphasis added) to earn the amount allowed by the Court.  It was submitted the suggested figure was reinforced by the plaintiff’s steadily increasing income in the years preceding the incident.[107]

[106][2014] VSCA 292

[107]T141

339     Counsel for the defendant submitted that the “without injury” earnings figure should be lower, as the plaintiff’s income had varied in the three years prior to the incident.  It was submitted that the assessment by the Court of this figure was to have an element of realism.[108]

[108]T131

340     In this regard, the plaintiff accepted the Kingston Hospital contract was coming to an end and that there were often redundancies in the industry.  Whilst it might have been the case that he was “first on last off”, he has been made redundant twice.[109]  As the plaintiff, himself, said, he would not have been surprised to find himself redundant again after the hospital job.[110]

[109]T131

[110]T132

341     In those circumstances, it was submitted a more appropriate annual figure was $70,000 as it was not realistic that the plaintiff was going to be working every week earning $1,700 a week.  Sixty per cent of $70,000 is $42,000.[111]

[111]T133

342     However, I accept the appropriate figure is $1,700, as counsel for the plaintiff suggested. In my view, it is a realistic figure representing the plaintiff’s demonstrated capacity had he not been injured.

343     In terms of the plaintiff’s present earning capacity, counsel for the defendant submitted the Court was put in the unenviable position of having to simply guess about too many things.[112]  The defendant took issue with the plaintiff’s estimate of his business expenses and the amount of profit/net income.[113]  It was submitted that the plaintiff was not good at making estimates, as his affidavit demonstrated.[114]

[112]T133

[113]T89

[114]T147

344     Counsel for the defendant was also critical of a current earnings figure of $159 per week based on the plaintiff’s 2015 taxation return.[115] 

[115]T133

345     Counsel for the plaintiff submitted the current business should not be overrated.  It is a fledgling backyard business with an uncertain future.[116] 

[116]T141

346     Using the plaintiff’s sales figures of 128 units for the last six months with an $89 profit ($11,392), annualised, the business would earn $22,784.  The business would have to triple its turnover before its income even got close to $60,000, without taking into account deductions.[117] 

[117]T142

347     It was submitted as permanent means “for the foreseeable future”, it is easy to say that the plaintiff has easily discharged the burden that he has suffered the requisite loss of 40 per cent.[118]

[118]T142

348     Whilst there are no precise figures available and only estimates, in my view, the earning capacity of the business is limited and it is unlikely that the plaintiff’s earnings for the foreseeable future are unlikely to exceed $42,000 let alone $60,000.

349     As I indicated during the hearing, I reject the submission by counsel for the defendant that there is no evidence why the plaintiff cannot do any more in the business because of his right shoulder condition[119] and that there is nothing physically that restricts the plaintiff from doing more work.[120]

[119]T126

[120]T127

350     I accept that the plaintiff is doing his best within his physical capacity and capabilities to retrain and rehabilitate himself, and he is “making a bit of a fist of it”.  The reality is that through the business his earnings are nowhere near what he was earning before as a labourer in the construction industry.[121] 

[121]T142

351     I accept that Dr Thomas’ view as to the plaintiff’s work capacity sums up the situation very neatly in that the working four hours a day, five days a week replicates exactly what the plaintiff is doing in his own business.[122]

[122]T144

352     While there is a lot of Facebook activity, the reality is that the plaintiff’s earnings from the business are not significant and could not achieve even the level suggested by the defendant of $42,000.

353     In my view, the plaintiff is presently working in the business to his maximum physical capacity.  If he could make more units, he would.  As he explained, because of his shoulder condition, he has to posture himself constantly moving around to get comfortable.  He tires very easily and if he works too hard in the business one day, he is often totally wrecked the following day.  He cannot be relied upon to work consistently for more than a few hours per day.

354     Taking into account all of the evidence, I am satisfied the plaintiff does not have the ability to earn in excess of $60,000 in his current business and has, therefore, suffered the requisite loss.

Alternate employment

355     The defendant relied on a number of jobs suggested by Recovre in 2012 and 2016 as being vocationally suitable for the plaintiff and consistent with the noted restrictions.  These included:

·    Receiving and despatch clerk ($1,050 to $1,145 gross per week);

·    Rental sales person – care hire or plant machinery and equipment hire ($820 to $1,052);

·    Security officer – gatehouse, front desk or control room roles ($1,065 to $1,235) and road traffic controller ($926).

356     However, vocational assessor, Ms Katrine Green, considered the plaintiff had no capacity to perform any of the jobs suggested by Recovre.

357     The plaintiff maintains he is not capable of those jobs.  He is capable of isolated tasks such as answering a phone but not on a consistent and regular basis.  He did not know of a specific job he could do.  He has never used a computer in any job.  Given these circumstances, his focus has turned to self-employment as he is unreliable because of pain and tiredness.

358     Dr Sutcliffe is the only medical practitioner of the view the plaintiff has no capacity to undertake employment in the open market and disagreed he could perform any of the jobs suggested by Recovre due to the manual handling involved. Further, she did not believe he could present in a consistent, productive and efficient manner in open employment.

359     Dr Smith did not really comment on the plaintiff’s work capacity, noting that the plaintiff thought he could not do labouring work and had gone into a small business.

360     The consensus of medical opinion is that the plaintiff is confined to relatively light work, sedentary or semi sedentary employment not involving repetitive heavy lifting or overhead tasks on a regular basis.  A lifting restriction of 2 kilograms was supported by Dr McInnes and Dr Thomas, with Dr Yong of the view that a limit of 5 kilograms on a repetitive basis was appropriate.

361     Dr Kudelka and Mr McInnes thought the jobs in the 2012 report were appropriate.  Mr Dooley thought the 2016 jobs were appropriate, as did Dr Yong, although he thought some would require individual assessment.

362     In terms of work hours, Dr Thomas considered the plaintiff’s maximum capacity was four hours a day, five days a week, whilst Dr Yong considered, on a graduated return to work plan starting four hours a day, four days a week gradually increasing to full hours within six to eight months.

363     Counsel for the defendant submitted those doctors who considered the plaintiff had a limited work capacity were unaware of the extent of his activities in his business and the lack of an accurate picture in relation thereto detracted from their ultimate conclusions.[123] 

[123]T129

364     Given my views as to the actual level of the plaintiff’s activities in the business and their relatively light nature, with which he still has difficulty, the views of these medical examiners are still relevant and of assistance and are in line with my findings of a significantly limited work capacity due to right shoulder restrictions.

365     The plaintiff would have similar difficulties working in alternate employment as experienced in his own business. Therefore, I am also satisfied he does not have the capacity to work other than a few hours a day in very light work and therefore has suffered the requisite loss on either parties “without injury” earnings figures.

366     Further, I am satisfied that as the plaintiff’s right shoulder disability has persisted for some years now, it is likely to be permanent.

367     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

368     Whilst Dr Sutcliffe thought with extensive training the plaintiff could work in “communication style employment”, in my view, as Dr Thomas noted, the plaintiff, in his early fifties, has basic education only and retraining was unlikely to lead to any increase in his vocational options.[124]

[124]Dr Sutcliffe considered that some retraining may assist

369     I am not satisfied that doing a business course would enhance the plaintiff’s earning capacity in the business given his physical limitations and, my view, he is working to his capacity.

370     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

371 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, that is, both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[125]and Advanced Wire & Cable Pty Ltd & Anor v Abdulle.[126]

[125][2009] VSC 454 at paragraph [147]

[126][2009] VSCA 170

372     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.

373     Having made this finding, it is not necessary to determine the alternative application as to whether there is a serious injury as a result of a bilateral shoulder impairment.

374     Counsel for the defendant addressed me in relation to this issue; however, it was not pursued by counsel for the plaintiff, who submitted the right shoulder alone was an extremely straightforward application when one considered the plaintiff’s very impressive work history in well paid manual work prior to the incident injury.[127] It was submitted the plaintiff is a fifty-four year old, right-hand dominant man who, on any view, has a very significant impairment.[128]

[127]T140

[128]T146

375     Whilst I do not have to decide this issue, in my view, succeeding in an application for bilateral impairment would be very difficult in the present case as it is unclear whether the plaintiff suffered an injury to his left shoulder in the incident itself; as a result of overuse of his left arm to compensate for his right shoulder injury as referred pain from a cervical condition, or simply as a result of the degenerative process.

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