James v Kaya
[2015] VMC 15
•21 MAY 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No.D13766320
| OJAY JAMES | Plaintiff |
| v | |
| ALI KAYA | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 17, 27 & 28 APRIL 2015 |
DATE OF DECISION: | 21 MAY 2015 |
CASE MAY BE CITED AS: | JAMES v KAYA |
REASONS FOR DECISION
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Catchwords: Preliminary issue: Application to court to refer medical questions to a Medical Panel – Refused. Termination of weekly payments after 130 weeks for injuries to back, neck and PTSD occurring on 21 April 2009 in a motor vehicle accident – Rejection of claim alleging injuries to left and right shoulders arising out of or in course of employment and in motor vehicle accident on 21 April 2009 – incapacity no longer due to injury – employment no longer contributes to incapacity – Credit: inaccurate history of prior injuries given by Mr James to doctors – evasive evidence given concerning return to work activities – Claim Dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Malpas | Nowicki Carbone |
| For the Defendant | Ms Nadj | Russell Kennedy |
HIS HONOUR:
1 Mr James is 53 years of age and was employed by the defendant as a taxi driver from 1 July 2008. He was involved in a motor vehicle accident on 21 April 2009 in the course of his employment. He lodged a WorkCover claim alleging that he sustained neck and back injuries together with a post-traumatic stress disorder for which liability was accepted. On 14 July 2011, he received a Notice from Allianz informing him that his weekly payments of compensation would be terminated on 17 October 2011, on the basis that he had a current work capacity or in the alternative, if he had no current work capacity, it was not likely to continue indefinitely.
2 Mr James then lodged a further WorkCover claim dated 7 January 2013, alleging that he sustained left and right shoulder injuries and back and neck injuries arising out of or in the course of his employment due to the repetitive work he performed. On 6 March 2013, Allianz rejected liability for the claim in respect to the alleged left and right shoulder injuries. On 9 January 2015, Mr James lodged a further WorkCover claim alleging that his left and right shoulder injuries were sustained in the motor vehicle accident on 21 April 2009 and whilst performing taxi driving duties. On 2 February 2015, Allianz rejected liability on the basis that the injuries did not arise out of or in the course of his employment to which employment was a significant contributing factor.
3 By way of an Amended Defence, the defendant alleges that:
- the claimed injuries did not arise out of or in the course of employment;
- employment was not a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
- any incapacity for work does not result from, and is not materially contributed to by an injury which entitles Mr James to compensation;
- employment no longer materially contributes to an incapacity for work;
- medical and like expenses are not in relation to an injury which entitles Mr James to compensation; and;
- Mr James has a current work capacity, or if he has no current work capacity, it is not likely to continue indefinitely.
4 Somewhat surprisingly, at the commencement of the hearing, Mr James made an application to the court to refer medical questions to a Medical Panel. The application was opposed by the defendant on the grounds that firstly, this was the third application by Mr James to the court to refer medical questions to a Medical Panel, and secondly, there were factual matters in dispute which required determination by the court.
5 The court file revealed that on 16 October 2014, I refused an application by Mr James to refer medical questions to a Medical Panel on the basis that it amounted to an abuse of process having regards to the fact that the matter had previously been listed for a Directions Hearing and Contested Hearing on two previous occasions without an application being made to the court on those occasions to refer questions to a Medical Panel. Notwithstanding my prior ruling, Mr James made a further application to the court on 2 March 2015, which was opposed by the defendant on the grounds that there were factual and credit issues involved. I refused the application. On 17 April, I again refused the application on the basis that it amounted to an abuse of process (s 274 (3)) and it appeared to the court that the issues in dispute would depend substantially on the resolution of factual issues which would be more appropriately determined by it. (s 274 (5))
6 Mr James gave evidence as did Dr Slesenger and Mr Myers, General Surgeon, who assessed Mr James on behalf of his lawyers on 13 January 2013 and 12 March 2015. The parties tendered numerous documents, medical records and reports.
7 Mr James gave evidence that he was born in Turkey and came to Australia in 1987 where he worked initially as a forklift driver and then taxi driver. He told the court that he was involved in two motor vehicle accidents in December 2001. On 4 December 2001, he was rear-ended in Sydney Road, Coburg and on 12 December, 2001 whilst doing a hook turn in the CBD, another car ran into him. He told court that he lodged a WorkCover claim as a result of neck shoulder and back injuries sustained in those motor vehicle accidents for which liability was accepted by Royal & Sun Alliance, the agents of V & A Nominees Pty Ltd, his employers at the time. Mr James gave evidence that he believed that his weekly payments continued until late 2003 and he then began to receive benefits from Centrelink.
8 Mr James gave evidence that he commenced employment with the defendant in 2008 as a taxi driver. He told the court that on 21 April 2009, whilst driving along Beach Road he ran into the rear left side of a right turning vehicle. He told the court that he was taken by ambulance to the Alfred Hospital and subsequently lodged a WorkCover claim form dated 3 August 2009 alleging that he had sustained injuries to his neck, back and post traumatic stress disorder as a consequence of the motor vehicle accident. Liability was accepted and he continued to receive weekly payments of compensation until they were terminated on 17 October 2011 on the basis that he had a current work capacity or in the alternative, if he had no current work capacity it was not likely to continue indefinitely. Apart from the injuries mentioned in the claim form, Mr James told the court that he also experienced left and right shoulder pain in the motor vehicle accident. He said that since his weekly payments were terminated he has been receiving a disability support pension, continues to receive treatment from Dr Slesenger and undertakes hydrotherapy.
9 Mr James gave evidence that since the motor vehicle accident on 21 April 2009, he has worked on “some occasions” when he was having difficulty receiving regular weekly payments. He said that on occasions he drove upmarket vehicles/limousines which he referred to as VHA’s. He said this mostly involved business people going to or from the airport. He recalled that he did this over a period of 2 weeks or so in October 2010 but not before that date. When questioned about his more recent activities he revealed that he has done some VHA driving “maybe once per week or once per fortnight” and he can usually cope with 2 or 3 bookings in an 8 hour period. He told the court that he does not believe he could do this full-time and could cope with one, two or three jobs in a day. In cross examination, he agreed that he may have done some taxi driving between January and July 2011 for short periods and when questioned as to when he last performed VHA taxi driving work, he said he did two jobs approximately 3 weeks ago for Oscar Unver and received a cash payment of $87.50. Mr James gave evidence that he has not applied for any other work because of his shoulder problems and takes Panadeine medication to relieve his pain. He told the court that he is on the public waiting list to have arthroscopic surgery on his shoulders. He also told the court that he was involved in a motor vehicle accident in February 2011, when he rear-ended a car which resulted in him attending hospital but he was discharged shortly thereafter and did not sustain injury.
10 During examination in chief, Mr James played down the significance of his most recent motor vehicle accident on 17 February 2011. However, during cross examination, he initially agreed that it was a major accident which resulted in his hospitalisation after he lost consciousness. He then told the court that he did not consider it to be a major accident as he was not injured and did not experience any pain as a result of the collision. He also told the court that at the time of the accident he was already experiencing pain in his neck, shoulders and back. He ultimately agreed that he lodged a TAC claim for payment of treatment expenses citing injuries to his neck, back and chest in that accident.
11 Mr James conceded that when he has worked driving VHA vehicles he is paid cash in hand. He told the court that he is not provided with payslips nor does he keep a diary of when he works and could not recall how often he has done it. He estimated that when he has performed this work he might receive “$50 to $100 per week or per fortnight or per month”. He also told the court that he could not recall whether he banked the money he received but said that when he earns income he informs Centrelink and that he may earn up to $4,000-$5,000 per year from it.
12 Mr James said that he had a previous workers compensation claim in 1992 or 1993 in relation to back injuries whilst working for the Ford Motor Company as a forklift driver. He denied experiencing neck and shoulder problems in that employment and said that after leaving Ford in 1994 he was unemployed until 2000 and then commenced working as a taxi driver with V & A Nominees Pty Ltd. He said that he received benefits from Centrelink whilst unemployed, enrolled in Tafe courses which he did not complete and did some casual work driving taxi’s. He said that as a consequence of the motor vehicle accidents in December 2001, he experienced neck and shoulder pain. He agreed that surgery on his shoulders was recommended by his treating surgeon at the time but denied by the insurer on the basis that it was a degenerative condition. He initially said that he did not work between 2001 and 2008 because of his back, shoulders and his stress condition but then agreed that he may have done some casual taxi driving work, “once per week or once per fortnight or once per month”
13 Mr James gave evidence that following the motor vehicle accident on 21 April 2009, he had difficulty initially receiving medical treatment as his previous general practitioner, Dr Ahmet, did not wish to be involved with WorkCover. When told that he saw Dr Ahmet on 8 May 2009 and there was no reference in his notes to the motor vehicle accident occurring on 21 April he said that he changed doctors to Dr Kour who has since been deregistered and he then began seeing Dr Slesenger in October 2010. Mr James told the court that prior to the motor vehicle accident on 21 April 2009, he was experiencing pain “all over his body” and found that sitting, lifting and driving duties aggravated his pain. He also said that prior to commencing work with the defendant he was experiencing left and right shoulder pain but was able to work. He said that whilst working for the defendant he would normally work 6 to 10 hours per day, 4-5 days per week. He said that there was not much “down time” as you only got paid for the jobs performed. He told the court that as part of his rehabilitation he did commence a carpentry course at Tafe in 2010 but was unable to cope with the physical aspects of it and also commenced a graphic design course in IT in 2011 which he did not complete. He told the court that he did not believe he could work as a warehouse administrator because of the physical nature of the job but may be able to work as a store person depending on the weights that he would be required to lift. He said that he did not believe he could work as a “normal” taxi driver because his condition has worsened and that he would not be able to work as a despatch/receiving clerk or service station attendant as it would require lifting duties. He said that when driving VHA’s it normally involves driving for 30 minutes or so and then having a break between jobs for 3 to 4 hours. He said that he does not believe that he could perform this job on a full-time basis.
Medical Evidence
14 The parties tendered numerous medical records, reports and radiological investigations relating to the previous injuries sustained by Mr James and the injuries relevant to the proceeding. The radiological reports tendered were as follows:
· CT Cervical Spine 21 December 2001: Conclusion – mild developmental canal stenosis at C5. Mild degenerative changes and a small haemangioma within the body of C5 to the left.
· MRI Spine 1 April 2003: Conclusion – multi degenerative disc disease. No right nerve root compression is seen.
· Left shoulder Ultrasound 25 March 2004 – There is a tear in the posterior third of the supraspinatus tendon which measures 12 mm in maximum diameter. This involves almost the entire thickness of the tendon with only a very thin portion of tendon remaining superiorly. The other rotator cuff tendons are normal as is the biceps tendon. The subdeltoid bursa is moderately thickened. During abduction, the supraspinatus tendon impinges at 80°. Conclusion; prominent partial thickness tear of the supraspinatus tendon and associated subdeltoid bursitis and impingement.
· Right shoulder Ultrasound 23 July 2004 - there is a tear involving the anterior and mid portion of the supraspinatus tendon. The tear extends from the articular surface with probably a few fibres remaining on the bursal surface of the tendon. The tear measures 14 x 9 mm. The subscapularis and infraspinatus components of the rotator cuff appear intact. The biceps tendon is normal. There is slight bony irregularity of the greater tuberosity. No significant bursal thickening is seen. There is no impingement on abduction of the shoulder. Conclusion; high grade partial thickness tear of the supraspinatous tendon.
· Left Shoulder MRI 23 July 2004 - the supraspinatus tendon is thickened and displays increased signal. There is a full thickness tear at the insertion, but the biceps muscle is not retracted and there is no evidence of fatty atrophy. The infraspinatus and subscapularis components of the rotator cuff appear intact. Fluid is present in the subdeltoid and subacromial bursa. There is no abnormal lateral or anterior down sloping of the distal acromion. Mild capsular hypertrophy is seen at the AC joint. No bone bruise or marrow oedema is seen. The biceps tendon is normal. Increased signal is seen in the anterior labrum and the anterior and posterior labrum are blunted consistent with labral degeneration. There is also increased signal in the superior labrum although this is not of fluid intensity. Conclusion; full thickness tear of the supraspinatus tendon associated with increased fluid in the subdeltoid and subacromial bursa. Blunting and increased signal in the labrum consistent with degeneration or less likely tear.
· MRI Cervical Spine 21 December 2009 - conclusion; multilevel degeneration, disc/osteophyte complex formation and mild compression with flattening of the anterior cord as described without altered cord signal.
· Ultrasound Right shoulder 8 February 2010 - a defect is present on the distal supraspinatus tendon of width 1 cm and extending over 2 cm, located 1.5 cm from the biceps tendon. There is underlying bony irregularity here; appearance consistent with a full thickness tear. There is a minimal amount of fluid seen in relation to this. The subscapularis, infraspinatus and longhead of biceps tendons were intact with no fluid in the biceps sheath and no findings of joint effusion. No thickening of the subacromial bursa. Range of movement satisfactory. Conclusion; evidence of a full thickness tear of the supraspinatus tendon, appearing chronic.
· Ultrasound left shoulder 13 August 2010 - there is a full thickness tear of the supraspinatus tendon which measures 1 cm. Biceps tendon, subscapularis and infraspinatus tendons are intact. Subdeltoid bursa has normal appearance. In the range of movement there is no evidence of impingement. Conclusion; full thickness tear of supraspinatus anteriorly which measures 1 cm.
· EMG/Nerve Conduction Study 13 December 2010 - conclusion; there is electrophysiological evidence of chronic denervation/reinnervation in C7/8/T1 myotomes on needle EMG. Only a limited number of muscles were tested due to poor patient tolerance of the procedure. Nerve conduction studies were normal. This is most consistent with a left C8 radiculopathy.
· Right Shoulder X-Ray 24 May 2011 - subacromial space is preserved. No calcifications project over the pathway of the cuff. There is very minor irregularity of the greater tuberosity. Glenohumeral and AC joints are unremarkable. The acromion undersurface is essentially flat.
· Right Shoulder Ultrasound 24 May 2011 - a large full thickness incomplete tear involves the supraspinatus tendon adjacent to the biceps tendon measuring 2 x 2 cm. The remainder of the cuff is intact. The biceps tendon is intact and enlocated but thickened and there is fluid within the tendon sheath. The subacromial bursa is thickened. Mild irregularity of the humeral head. Posterior labrum and AC joint are normal. Normal shoulder range of motion with no tendon or bursal bunching. Conclusion; large full thickness incomplete supraspinatus tendon tear. Biceps tendinopathy/tennosynovitis. Sub acromial bursitis.
· Left Shoulder Ultrasound 21 June 2011 - the biceps, subscapularis and infraspinatus are intact. The supraspinatus demonstrates a 13 x 11 mm full thickness tear abutting the biceps. The bursa is thickened with effusion in keeping with bursitis. Conclusion; evidence of bursitis. Full thickness tear of the supraspinatus.
· Left Shoulder Ultrasound 29 August 2011 - a 2 x 1.5 cm supraspinatus insertional full thickness tear with adjacent bony irregularity is noted. The rest of the rotator cuff and long biceps tendon appear normal. Subacromial bursa appears normal with no fluid detected. Movements are moderately restricted with abduction reduced to 60°. AC joint is non-tender. No posterior glenohumeral joint effusion. Conclusion chronic supraspinatus full thickness tear. Restricted movements suggestive of adhesive capsulitis. No bursitis seen.
15 It is apparent from the radiological investigations, that prior to commencing employment with the defendant on 1 July 2008, Mr James had degenerative disc disease in his cervical spine, a partial or full thickness tear of the left supraspinatous tendon and a high grade partial thickness tear of the right supraspinatous tendon. Subsequent investigations reveal that he has a full thickness tear of both the left and right supraspinatous tendons together with multi level cervical disc degeneration.
16 Dr Slesenger, General Practitioner and Specialist Occupational Physician, gave evidence and his clinical records and reports prepared by him and dated 27 November 2013, 24 January 2014 and 24 March 2015 were tendered. Dr Slesenger first saw Mr James on 5 October 2010. He obtained a history from Mr James that he had sustained neck, shoulder and low back injuries as a result of the motor vehicle accident 18 months previously. He was told by Mr James that past forms of treatment were of little benefit but that he was receiving benefit from a self managed exercise program. He reported that Mr James first developed pain in his shoulder in 2001 while he was working as a taxi driver which included being required to repetitively lift including over his shoulder. Dr Slesenger reported that Mr James was confused as to what treatment he received between 2001 and 2007 but noted he had been treated by Dr Clayton Thomas, pain specialist. Dr Slesenger stated that the motor vehicle accident on 21 April 2009, exacerbated his shoulder and neck problems and that because his condition did not improve he was referred to Mr Doig, orthopaedic surgeon, who diagnosed bilateral full thickness tears of the rotator cuff and recommended surgery. He also noted that he was placed under the care of a psychologist, Mr Lowe. By reference to radiological investigations, Dr Slesenger reported that Mr James has multi-level degenerative changes in his cervical spine together with bilateral shoulder pain caused by chronic bilateral supraspinatus tears. He stated that Mr James requires surgery in the form of bilateral shoulder arthroscopy. He opined that the motor vehicle accident may have aggravated pre-existing degenerative problems in the cervical spine and aggravated his shoulder symptoms.
17 In his report dated 24 March 2015, Dr Slesenger noted that Mr James was currently complaining of ongoing pain in his lower back, neck and both shoulders. Mr James indicated that his pain was at the level of 10/10 and is aggravated by cold weather and prolonged sitting. He noted that Mr James also told him that he had developed low back pain as a result of his long sitting whilst working as a taxi driver. He noted that Mr James is currently using Panadeine and Endep, undertakes hydrotherapy treatment and has evidence of a chronic pain disorder. Mr James denied any history of back, neck or shoulder problems prior to the 2001 injury.
18 Dr Slesenger noted that he did not have access to relevant clinical details concerning the motor vehicle accident in 2001. Nevertheless, based on the history obtained from Mr James, including the assertion that his job required him to repetitively perform over shoulder lifting of suitcases, Dr Slesenger opined that there appeared to be a temporal correlation between the motor vehicle accidents, manual handling tasks and his shoulder symptoms which were aggravated as a result of the subsequent motor vehicle accident. He also expressed the opinion that Mr James psychiatric condition appeared to have arisen after the motor vehicle accident on 21 April 2009 and therefore there is a temporal correlation. Dr Slesenger reported that he does not consider Mr James to be fit to perform his pre-injury duties as it would require him to drive for long periods of time, to manually handle suitcases and to respond to emergency situations. He also opined that; he would be unable to return to work as a warehouse operator as he would not be able to perform the manual handling or the postural requirements associated with that job; he would not be able to return to work as a store person due to the manual handling requirements and in particular forward reaching and over shoulder reaching; or dispatch/receiving clerk, unless the restrictions included; no pushing, pulling, carrying, lifting over 5 kg, no over shoulder reaching, no forward reaching, 4 hours per day, 4 days per week, sitting and standing as required and no repetitive neck work; and, he would not be able to return to employment as a service station attendant as it would require him to stand for long periods and restock shelves, receive incoming deliveries and attend to emergency situations. Dr Slesenger stated that with the restrictions outlined he would be able to return to suitable employment but noted that Mr James has no transferable skills, limited past occupational experience and his lengthy occupational disability adversely affects his employment capacity. In cross examination, after being informed that Mr James had engaged in driving VHA vehicles, of which he was unaware, he opined that he should be able to perform that work but it would be limited to 16 hours per week.
19 During cross examination, Dr Slesenger was surprised to be told that Mr James had given evidence that he no longer receives psychiatric/psychological treatment as it no longer helps. As stated, he was unaware and surprised to learn that Mr James had told the court that he had returned to work on occasions as a VHA driver. He questioned whether this work would be sustainable having regard to the requirement to sit for long periods and to perform lifting tasks. He told the court that the main physical problems affecting Mr James are his left and right shoulders and agreed that his opinion relies to a large extent on him having been given an accurate history by Mr James. Dr Slesenger told the court that Mr James did not tell him when he saw him on 18 February 2011, that he had been involved in a motor vehicle accident on 17 February 2011. When told that he had lodged a TAC claim as a result of sustaining chest, neck and back injuries in that motor vehicle accident, Dr Slesenger said that it “puts a different spin on causation”. He told the court that he is unable to disentangle the separate medical conditions when expressing an opinion concerning Mr James capacity to return to work. He gave evidence that as he has not had access to past medical records, it is difficult for him to express an opinion as to the relationship between work accidents and traffic accidents occurring many years ago and his current complaints. He agreed that he has not seen past radiological reports and in part has based his opinion on recent radiological investigations. When told that the radiology relating to Mr James shoulders is no different now to what it was in 2004, he said that it did not change his opinion as it confirmed that he was experiencing problems with his shoulders before 21 April 2009, which were exacerbated in the motor vehicle accident. Dr Slesenger gave evidence that he was also unaware that Mr James had been involved in 2 motor vehicle accidents in December 2001. In relation to the manual handling required in his job, he said that Mr James told him it was a frequent and daily event.
20 Mr Myers, General Surgeon, gave evidence based on his assessment of Mr James on behalf of his lawyers on 13 January 2013 and 12 March 2015. Mr Myers obtained a history of one motor vehicle accident in 2001 (12 December) causing neck and back disabilities for the first time. He obtained a history from Mr James that he worked for the defendant between 2007 and 2009 and was involved in a second motor vehicle accident on 21 April 2009 which aggravated his neck and back problems. Mr James told him that he has been off work ever since. He also obtained a history from Mr James that he has had troubles with his left and right shoulders since the initial motor vehicle accident which gradually worsened when he returned to work as a taxi driver which he attributed to lifting luggage in and out of the taxis. He said that this task also aggravated the problems in his neck and back. Mr Myers noted that after the initial motor vehicle accident in 2001 he was treated by Dr Ahnet and was referred to Mr Mills, orthopaedic surgeon, who recommended surgery to his left and right shoulders. He also noted that Mr Doig also recommended surgery in 2011.
21 Mr James told Mr Myers that he continues to have pain in the neck and back and both shoulders which is present “all the time”. Mr Myers referred to the numerous radiological investigations and the opinions expressed by other doctors and diagnosed that Mr James has probable degenerative disc disease in the cervical spine and rotator cuff injuries to the left and right shoulders. In his opinion, the opportunity to perform successful repair to his left and right shoulders has now passed. He also opined that the problems in his left and right shoulders were caused by repetitive strains on his shoulders in the course of his work activities between 2007 and 2009 and were markedly aggravated by the motor vehicle accident on 21 April 2009.
22 At his review assessment on 12 March 2015, Mr James told Mr Myers that he had not worked since his last examination on 13 January 2013. He also told Mr Myers that his condition was getting worse and continued to experience pain in his neck, low back and both shoulders which is present all the time. He also told him that he suffers from sleep disturbance and takes Endep and Panadeine for pain relief. Mr James told him that he thought that 80% of his shoulder problems were due to lifting while he was a taxi driver rather than the motor vehicle accident itself. Mr Myers reviewed the medical reports which were provided to him and once again expressed the view that Mr James suffers from rotator cuff injuries to the left and right shoulders as well as an aggravation of degenerative disc disease and spondylitis in the cervical and lumbar spine. He attributed 50% of his condition to work activities prior to the motor vehicle accident on 21 April 2009 and 50% to the motor vehicle accident itself. He opined that Mr James would not be fit to return to pre-injury employment or the suggested suitable employments, namely; warehouse administrator, store person, dispatching/receiving clerk or service station attendant.
23 When giving evidence, Mr Myers was informed that Mr James had been engaged in VHA/limousine taxi driving duties for one or two hours on occasions. He told the court that he should be encouraged to continue with this activity. When informed of the motor vehicle accident on 17th February 2011 and after reading the discharge summary from the Royal Melbourne Hospital, he opined that it did not appear that Mr James suffered from any significant head injury or cervical injury but it appeared he may have aggravated his neck condition. He agreed in cross examination, that Mr James did not; inform him of this accident when he examined him on either 13 January 2013 or 12 March 2015; or that he was involved in 2 accidents in December 2001; or that he was also involved in a motor vehicle accident in September 2001. He told the court that the injuries Mr James has suffered to his left and right shoulders causes his incapacity for employment. He agreed that the radiological investigations indicate that Mr James has suffered from shoulder pathology since at least 2004. He said that his condition was due to the injuries sustained in the motor vehicle accidents and degeneration and that his shoulders have been “shot for a long time”. He also said that Mr James has long standing degeneration of the cervical spine which has been aggravated by the motor vehicle accidents. He agreed that his opinion is to a large extent based on the history which is provided to him. He acknowledged that Mr James told him that he was employed with the defendant from 2007. When informed that Mr James commenced employment on 1 July 2008 and was only employed for a period of 10 months prior to the motor vehicle accident which occurred on 21 April 2009, Mr Myers maintained his opinion that his current condition has been caused equally by the repetitive lifting duties performed by Mr James whilst working as a taxi driver and the motor vehicle accident on 21 April 2009.
24 The records of the Royal Melbourne Hospital relating to the motor vehicle accident on 17 February 2011 were tendered. The records indicate that Mr James attended at 8:24 p.m. following a motor vehicle accident at 6:30 p.m. complaining of a sore neck and chest pain. The records also reveal that he provided a history that he was driving a large four-wheel-drive and was travelling at 50 kmph when he rear-ended a stationary car. A CT scan of his head and cervical spine was performed with the results indicating that he did not sustain an intracranial injury or cervical injury. He was discharged at 1:03 a.m. on 18 February.
25 Mr James tendered a medical report from Mr Doig, Orthopaedic Surgeon, who he first saw on 17 January 2012 on referral from Dr Slesenger. He obtained a history from Mr James that he was involved in a motor vehicle accident on 21 April 2009 and injured his left and right shoulders. Mr James told him that he had problems with his shoulders for a long period including being involved in a motor vehicle accident in the early 2000’s, without any specific incident but was able to continue working. Mr James also told him that his shoulders had deteriorated over time and that he had not been able to return to work. Mr Doig reported that Mr James underwent ultrasounds on his left shoulder on 13 August 2010, 21 June 2011 and 29 August 2011 all of which demonstrated a full thickness tear of the supraspinatous tendon. He also noted that an ultrasound of the right shoulder on 24 may 2011 showed a full thickness tear of the supraspinatus tendon. He noted that an MRI and ultrasound performed in 2004 indicated full thickness tears of the supraspinatous tendons at that time.
26 Mr Doig opined that the motor vehicle accident on 21 April 2009 significantly exacerbated Mr James pre-existing symptomatic shoulder problems, causing him to cease work. In his opinion, the motor vehicle accident appears to have caused a significant aggravation of his shoulder problems and may have also have been aggravated by the heavy repetitive work that Mr James told him he performed in his job.
27 Mr James tendered a medical report from Ms Manolopoulos, Orthopaedic Surgeon, who assessed him on behalf of his lawyers on 16 January 2014. She obtained a history of the motor vehicle accident in 2001 and that Mr James was unable to return to work following that accident until 2007. He told her that he was rear-ended by a car in 2009 and was taken to hospital with neck pain and that his neck and shoulder pain got worse over a period of time. Mr James also told her that he has not tried to return to any other work since then and experiences constant pain in both shoulders which radiates to his elbows. He said that he was unable to sit in a car for more than 20 or 30 minutes and experiences back and shoulder pain if he sits for any longer. After reviewing medical reports and radiological investigations, Ms Manolopoulos opined that Mr James requires surgical treatment to his shoulders. She stated that further investigations need to be conducted for the cause of his neck pain based on the unusual neurology in his upper limbs. Ms Manolopoulos expressed the opinion that it is highly unlikely that a simple car accident would have caused the bilateral rotator cuff tears as the rotator cuff pathology pre-existed the accident. She stated that she was not able to provide an opinion as to whether his symptoms were as a direct result of heavy or repetitive lifting tasks.
28 Mr James tendered medical reports from Dr Kaplan, Consultant Psychiatrist, who assessed him on behalf of his lawyers on 20 January 2014 and 19 March 2015. Dr Kaplan obtained a history of the two motor vehicle accidents in 2001 and the motor vehicle accident on 21 April 2009. Mr James told him that he has not returned to work since the last motor vehicle accident. He denied a past history of psychiatric illness or treatment. Mr James told Dr Kaplan that he experiences pain in his lower back which sometimes radiates down his legs and is aggravated by sitting or standing for long periods, walking for 15 to 20 minutes or by bending and lifting activities. He said that he feels anxious and depressed and at times becomes tearful and has lost confidence. He also told Dr Kaplan that he still thinks about the second accident despite his attempts to avoid doing so and that he does very little driving because of his pain. Dr Kaplan opined that Mr James has developed an adjustment disorder with mixed anxiety and depressed mood as a consequence of the motor vehicle accident on 21 April 2009. Dr Kaplan suggested that he be referred to a psychiatrist for supportive psychotherapy. In his second report, he noted that Mr James told him that there has been no improvement in his physical condition and that since the previous examination he was referred to a psychiatrist who he saw on 2 or 3 occasions. Mr James told him that he had attempted to return to work on several occasions over the past year, driving a hire car but because of his pain he lasted no more than one or 2 days each time. He said that his last attempt occurred several months ago. He told Dr Kaplan that he remains anxious and irritable and feels persistently depressed and at times tearful. Dr Kaplan opined that his adjustment disorder with mixed anxiety and depressed mood has not improved since his previous examination, that it affects his capacity for employment although his capacity is largely determined by his physical condition.
29 The defendant tendered medical reports from; Mr Kudelka dated 3 October 2003; Mr Marshall dated 22 July 2004 and 28 August 2004; Mr Dooley dated 11 November 2005; Dr Miller dated 10 May 2010; Mr Shannon dated 21 January 2011, 3 February 2011 and 26 April 2012; Dr Hwang dated 27 February 2013 and 11 November 2014; and, Dr Entwisle dated 7 April 2011 and 14 April 2014. The defendant also tended Vocational Assessment Reports dated 9 June 2010 and 14 July 2011.
30 Mr Kudelka assessed Mr James on behalf of Wyatt Gallagher Bassett on 30 September 2003 following the motor vehicle accidents on 4 December and 12 December 2001. He obtained a history that Mr James suffered aching in the neck and shoulders following the first motor vehicle accident and further complaints of neck, shoulder and back pain after the second accident. Mr Kudelka also noted that Mr James was referred to Dr Clayton Thomas for pain management and reported that Mr James appeared very depressed. He reported that a CT scan indicated degenerative changes in the cervical spine consistent with his age and diagnosed that Mr James suffered a soft tissue injury strain to his neck and back in the motor vehicle accidents. He expressed the opinion that at that stage Mr James was not fit to return to work as a taxi driver due to his mental problems and the restriction of his neck and shoulder movements. A further report from Mr Kudelka was tendered dated 9 September 2004. He reported that he had provided an earlier report dated 29 April 2004 which was not tendered. In his report dated 9 September 2004, he expressed the opinion that Mr James symptoms in his neck, shoulders and back were age-related and that the effect of the 2 collisions in late 2001 had probably subsided. In his opinion, the proposed arthroscopic surgery to his shoulders was not due to the motor vehicle accidents but were age related.
31 Mr Marshall assessed Mr James on behalf of Wyatt Gallagher Bassett on 22 July 2004. He obtained a history of Mr James being involved in the 2 motor vehicle accidents in December 2001 and complaining of neck pain, headaches, shoulder pain and lumbar pain. He noted that Mr James had been treated by a psychologist and orthopaedic surgeon, Mr Khan, who performed cortisone injections into his left shoulder. He noted the CT scan of the cervical spine dated 21 December 2001, MRI scan dated 1 April 2003 and left shoulder ultrasound dated 25 March 2004. He also noted that the CT scan and MRI scan confirmed the presence of degenerative disc disease while the left shoulder ultrasound showed a partial thickness tear of the supraspinatus tendon. Mr Marshall diagnosed that Mr James suffered a whiplash injury to his neck but at the date of examination any ongoing symptoms are the result of age related degenerative changes with considerable psychosomatic overlay. In a supplementary report dated 28 August 2004, he questioned the need for arthroscopic surgery of the shoulders and the relationship between ongoing symptoms in the left and right shoulders and the motor vehicle accidents.
32 Mr Dooley assessed Mr James on behalf of Wyatt Gallagher Bassett on 8 November 2005. He obtained a history from Mr James that he sustained a lower back injury in 1991 whilst working for the Ford Motor Company and for which he received a lump sum for a permanent disability to his lower back. He noted the history of 2 motor vehicle accidents in December 2001 and that Mr James recently appeared before a Medical Panel in relation to the proposed left and right shoulder surgery and who apparently were of the opinion that the rotator cuff tears were not due to the motor vehicle accidents. Mr Dooley diagnosed that Mr James suffered from a chronic soft tissue injury to his cervicothoracic spine and bilateral rotator cuff degeneration and degenerative tears affecting the supraspinatus tendons of both shoulders. Mr Dooley opined that in all probability the bilateral rotator cuff tears in the supraspinatus tendons of both shoulders did not arise as a result of the motor vehicle accidents but as a result of natural degeneration of the rotator cuff tendons.
33 Dr Miller assessed Mr James for Allianz on 6 May 2010. He obtained a history that Mr James had been employed with the defendant for approximately 3 years prior to the motor vehicle accident on 21 April 2009. Mr James denied suffering from any prior injury to his neck or back. Dr Miller also obtained a history of the motor vehicle accident on 21 April 2009 where Mr James sustained neck and back pain and subsequent depression. Mr James complained to him of suffering from persistent pain in his neck and back, headaches, restricted movement of his neck and back, muscle spasms in his neck and back, difficulty sitting for long periods and depression. Dr Miller noted that the MRI scan of the cervical spine on 21 December 2009 revealed evidence of multi-level degeneration in the cervical spine. On examination, Dr Miller stated that Mr James had a mild to moderate disability of his neck and back due to local discomfort and limitation of movement. In his opinion, Mr James aggravated a pre-existing degenerative condition his spine and associated soft tissues. He also commented that Mr James recovery has been complicated by the onset of a post-traumatic depressive condition for which he is receiving treatment. Dr Miller opined that Mr James would be fit for suitable work with restrictions including; avoiding lifting in excess of 7 kg; avoiding prolonged static postures such as sitting or standing in the same position for more than one hour at a time; avoiding movements of his neck or back beyond a comfortable range and avoiding forceful pushing or pulling activities.
34 Mr Shannon assessed Mr James for Allianz on 21 January 2011 and 23 April 2012. Mr James told him that his main problem was his neck and shoulders and to a lesser extent his lower back. He obtained a history that he has never had any previous trouble with his neck or back. He noted that an MRI scan indicated significant multilevel cervical disc degeneration. On the information he was provided with, Mr Shannon noted that contrary to the history given by Mr James, that there was a significant past history of injuries to his head, neck, shoulder and back. He noted there were a number of non-organic features to his presentation and exaggeration of physical signs. He accepted that Mr James has an ongoing disability in his neck and back with a significant psychological reaction. He assessed Mr James as capable of performing light store work with restrictions on prolonged or repetitive bending or heavy lifting, a dispatching and receiving clerk with similar qualifications and a logistics clerk or service station console operator. Mr Shannon reviewed Mr James on 23 April 2012 for the purposes of assessing liability for the proposed surgery to his left and right shoulders. Mr James told him that he did not injure his shoulders in the motor vehicle accident but from his work prior to the accident. Mr James told him that he first had trouble with his shoulders about 10 years previously when he was working as a taxi driver for the same employer. (During cross examination, Mr James denied providing this history to Mr Shannon). Mr Shannon also reported that Mr James told him that his shoulders were injured from lifting and from driving. He told Mr Shannon that he had not previously lodged a claim for his shoulders although he did seek physiotherapy treatment which was of no help. He stated that he hurt his neck and back in the motor vehicle accident but his shoulders were worse after the accident. When questioned by Mr Shannon as to the previous motor vehicle accident in 2001 he was told by Mr James that he was not sure who the employer was, that he had injuries to his neck and back and aggravated his shoulders but the claim was not accepted. Mr James also told Mr Shannon that his shoulders started playing up about year after the motor vehicle accident in 2001. After reviewing x-rays and ultrasounds, Mr Shannon reported that Mr James had clinical evidence of rotator cuff impingement and chronic bilateral supraspinatus tears. Mr Shannon noted that at the previous examination the shoulder pain seemed to be mainly in the trapezius muscles and referred from the neck and he did not detect evidence of rotator cuff impingement. He noted that Mr James now told him that he had problems with both shoulders since long before the motor vehicle accident in 2009 which he attributed to the general nature of his work over the previous years and possibly to a previous accident. Mr Shannon noted that there were no records of treatment for shoulder injuries following the earlier accident. Mr Shannon opined that on the earlier history obtained it appeared that most of Mr James complaints were arising in his neck and back rather than his shoulders. He stated that it is unlikely that the motor vehicle accident in April 2009 had a significant influence on his shoulder condition as Mr James was insistent that the shoulder condition pre-existed the motor vehicle accident. Mr Shannon expressed the view that liability should not be accepted for the proposed shoulder surgery.
35 Dr Hwang, occupational physician assessed Mr James for Allianz on 27 February 2013 and 11 November 2014. Mr James told him of the motor vehicle accident in 2001 and that he had remained out of work until he commenced with the defendant in 2007. Mr James also told him of the motor vehicle accident on 21 April 2009 and that he has been unable to work since that date due to his general pain and he shoulder condition. Dr Hwang noted that Mr James has an extensive past history of shoulder, neck and back pains which predated his first motor vehicle accident in 2001. Mr James told him that as a consequence of the motor vehicle accident on 21 April 2009, he experienced an increase in his pre-existing neck, back and shoulder pains. After referring to radiological investigations, Dr Hwang reported that Mr James has bilateral rotator cuff tears of the shoulders. He stated that due to a lack of clinical information, it was difficult to determine whether his condition developed gradually in the absence of a specific precipitating factor, or resulted from the accident itself. He opined that the injury is not consistent with being caused by his employment with the defendant and may be related to his previous motor vehicle accident or it may have commenced naturally. He also reported that his pre-existing condition may have been exacerbated by his employment and the motor vehicle accident on 21 April 2009 to a minor degree. Dr Hwang did not consider that there was any significant ongoing aggravation, recurrence, acceleration, exacerbation or deterioration in relation to his employment with the defendant and the motor vehicle accident. He also considered that Mr James would not be precluded from undertaking driving duties, but may have difficulty assisting customers with their luggage.
36 On review, Mr James told Dr Hwang that he did not have any symptoms in his shoulders, neck and back prior to the motor vehicle accident in December 2001. Mr James told Dr Hwang that his shoulder symptoms were worsening. Dr Hwang noted that when Mr James was examined by Dr Miller in May 2010 there was no mention by Mr James of shoulder pain and on examination “movements of the shoulders were normal range” and there was no mention of any impingement at that time. Dr Hwang noted that this was the first clearly documented objective evidence since the motor vehicle accident as other reports, including that of Dr Slesenger were made over 18 months after the motor vehicle accident. He also noted that Dr Slesenger’s first documented shoulder examination appeared to be on 29 October 2010, whereby he described, “on examination full ROM, no weakness. impingement negative”. Dr Hwang confirmed that Mr James has bilateral rotator cuff tears. He noted that there are now 2 different stated causes as to his shoulder problems being an assertion that injuries occurred throughout the course of his employment as a taxi driver and in the motor vehicle accident on 21 April 2009. He noted that on his initial assessment, Mr James did not indicate that his problems arose in the normal course of his duties. He also noted that there was no complaint of shoulder pain by Mr James to Dr Miller when he assessed him in May 2010 or significant objective abnormality when examined by Dr Slesenger in October 2010. Dr Hwang opined that psychosocial factors which may include depression may be involved and on balance he maintained his opinion that he did not consider there to be a significant ongoing relationship to employment.
37 Dr Entwisle assessed Mr James on 5 April 2011 and 7 April 2014. He obtained a history of the motor vehicle accident in 2001 and 21 April 2009. Mr James told him that he continues to experience pain in his neck and shoulders, that his movements are restricted, that he can walk but bending and lifting activities are limited, he can drive but has not returned to taxi driving. Dr Entwisle diagnosed that Mr James was suffering from an adjustment disorder with depressed mood and that he would have a work capacity for suitable employment. On review, Mr James told him that he no longer attended full psychological treatment and no longer considered that he had a psychiatric condition or needed psychological treatment. Dr Entwisle commented that Mr James has developed a somewhat impassive approach to returning to work and did not believe he had a psychiatric condition of any clinical significance. From a psychiatric perspective, he considered that Mr James has a work capacity for preinjury and suitable duties and would be capable of undertaking the suitable duties outlined in the vocational assessment report.
38 A vocational assessment report from Work Able dated 9 June 2010 was tendered. Ms Hunt, vocational consultant reported that Mr James has a number of transferable skills and abilities and she identified suitable employment options which included; warehouse assistant, despatching and receiving clerk, logistics clerk, service station console operator and taxi driver. She reported that Mr James is well qualified to pursue the vocational options identified and that he should be referred into the new employer services program to assist him in securing suitable new employment.
39 A 130 week vocational assessment report from Ipar dated 13 July 2011 was tendered. The author of the report, Mr O’Brien, concluded that Mr James had a capacity for job seeking based on the medical opinions of Mr Shannon and Dr Entwisle. At assessment on 6 July 2011, Mr James told Mr O’Brien that he continued to experience ongoing pain and restriction of movement in both shoulders and his neck and that he also suffers from sleep disturbance. A medical report was not obtained from Dr Slesenger but reference was made to the medical opinions of Dr Entwisle and Mr Shannon. Mr O’Brien also obtained a history from Mr James that he continues to take Tramadol and Cipramil which does not cause any negative side-effects that would impact on his work capacity. Mr James also told him that he has not returned to work since 21 April 2009, that he tries to avoid all lifting, standing for more than 20 to 30 minutes and needs to change his position every 5 minutes. He also told him that he tries to avoid all bending, overhead activity, driving over distances of 20 to 30 minutes and is able to walk for 20 minutes without any difficulty. Mr O’Brien reported that Mr James has transferable skills in the areas of computers, labouring, retail, store/warehousing and numerous personal attributes. Mr James told him that he does not believe he is ready to return to work and would require surgery prior to doing so. He also told him that he would be interested in working as a forklift driver or with a computer in an office, or with the appropriate training, he would be interested in operating equipment or in graphic design. Mr James told him that his perceived barriers to employment would include his ongoing pain and restriction of movement in his neck and back and associated sleep disturbance.
40 Mr O’Brien identified suitable employment options as being; warehouse administrator, store person, despatching or receiving clerk, service station attendant or taxi driver.
41 At the conclusion of evidence, the defendant raised an issue concerning the failure of Mr James to comply with a Notice to Produce dated 2 April 2015 requesting documentation relating to:
· Applications for employment with VIP cars;
· Payslips or group certificates from VIP cars;
· Covering letters regarding applications to any employment sought since July 2009;
· Acceptance and/or rejection letters from employment sought from July 2009 and your resume.
42 Mr James lawyers sought the relevant documentation from Mr James, the Australian Taxation Office and Centrelink on 8 April without receiving a response from either the ATO or Centrelink as at the date of hearing. Mr James did not produce the other documents requested. Mr James lawyers also sought a copy of the Medical Panel opinion in 2005 which was unable to be obtained.
Conclusion
43 I did not find Mr James to be a reliable or credible witness. He was not only evasive when questioned about the extent of his work activities in recent years but also provided and inaccurate and at times false history to many of the doctors who examined him for the purposes of this proceeding.
44 The medical evidence indicates that he has suffered from symptoms associated with cervical disc degeneration, probable soft tissue injuries to his lumbar spine and left and right supraspinatus tendon tears for many years predating his employment with the defendant.
45 Mr James credibility is called into question by the fact that;
· he told Dr Slesenger that he did not have a history of back or neck problems prior to the motor vehicle accident in 2001. The evidence revealed that he had injured his back whilst employed by Ford in the 1990s and pursued a permanent disability claim;
· he did not inform Dr Slesenger that he was involved in two motor vehicle accidents in December 2001;
· he did not inform Dr Slesenger of his involvement in the motor vehicle accident on 17 February 2011 when he saw him on 18 February notwithstanding his evidence that he lost consciousness for a period of time following the accident, attended hospital and had a CT scan performed on his cervical spine;
· he has not informed Dr Slesenger that he has returned to work on “occasions” driving VHA’s/limousines;
· he told Mr Shannon on 23 April 2012, that he did not injure his shoulders in the motor vehicle accident on 21 April 2009 and that his injuries were as a consequence of lifting luggage prior to that date and from general driving duties;
· he did not inform Mr Myers that he was involved in 2 motor vehicle accidents in December 2001, a motor vehicle accident in September 2001 or a motor vehicle accident on 17 February 2011;
· he told Mr Myers and Ms Manolopoulos that he commenced work with the defendant in 2007 rather on 1 July 2008;
· he did not tell Mr Myers that he has returned to work on “occasions” since 21 April 2009 as a VHA/limousine driver;
· he did not provide Mr Doig with a complete and accurate history of the injuries sustained in 2001 or that he had returned to work on “occasions” since 21 April 2009;
· when assessed by Ms Manolopoulos he denied suffering from prior neck or back injuries and also told her that he had not returned to work since 21 April 2009;
· he told Dr Miller he worked for the defendant for approximately 3 years prior to the motor accident on 21 April 2009;
· he initially told Dr Hwang that his shoulder symptoms were caused by the motor vehicle accident on 21 April 2009 but on review said that they were also due to lifting duties he performed when he was working as a taxi driver;
· he told Dr Slesenger that he did not injure his shoulders in the motor vehicle accident but from his work prior to that date;
· he denied a past history of psychiatric illness or treatment to Dr Kaplan notwithstanding that in his 2001 motor vehicle accidents claim he included suffering from post-traumatic stress disorder; and
· he told Dr Hwang that he had not returned to work since 21 April 2009.
46 As has been often stated in workers compensation proceedings, an expert medical opinion is only as good as the foundation on which it is based. In this case, the medical opinions were based on an incomplete, inaccurate or false history and the doctors did not have the benefit of accessing past medical records.
47 I am not persuaded that Mr James pre-existing left and right shoulder conditions were aggravated, accelerated exacerbated or deteriorated as a consequence of his duties as a taxi driver, including lifting of luggage, in the course of his employment between 1 July 2008 and 21 April 2009. Firstly, there is no record of any complaint being made by him during this period to his treating doctor of increased shoulder pain as a result of his driving duties or lifting of luggage for his passengers. Secondly, he did not allege that he injured his left or right shoulder when he lodged his initial claim form dated 3 August 2009. Thirdly, when giving evidence, there was a lack of detail as to the frequency in which he was required to lift luggage and the weights involved. He did not give any evidence of a particular episode of lifting luggage or of his driving duties that caused his condition to worsen. Furthermore, the supporting medical evidence is predicated solely on the history given by Mr James, which I have found to be unreliable and not by reference to contemporaneous medical records during that period.
48 I am not persuaded that Mr James pre-existing left and right shoulder conditions were aggravated, accelerated, exacerbated or deteriorated as a consequence of the motor vehicle accident on 21 April 2009. The evidence reveals that he did not complain of pain in his shoulders at the time and did not include the allegation that he had injured his left or right shoulders in the motor vehicle accident when he lodged his WorkCover claim in August 2009. When he was seen by Dr Miller on 6 My 2010, he made no complaint of shoulder pain and on examination displayed a normal range of movement as was the case when he was seen by Dr Slesenger on 29 October 2010. In addition, he also told Mr Shannon on 23 April 2012 that he did not injure his shoulders in the motor vehicle accident. I accept and prefer the opinions of Mr Shannon and Dr Hwang on this issue.
49 On balance, I find that as a consequence of the motor vehicle accident on 21 April 2009, Mr James suffered from a temporary aggravation of an underlying and pre-existing degenerative condition in his cervical spine and suffered soft tissue injuries to his back. I also find that he suffered an adjustment disorder with mixed anxiety and depressed mood which has now resolved and for which he no longer receives treatment. I find that he has now recovered from the effects of the aggravation of his degenerative cervical condition and the soft tissue injuries to his back and that any ongoing symptoms or incapacity are no longer due to those injuries. I find that any symptoms his is currently experiencing are as a consequence of his underlying and pre-existing degenerative cervical disc disease. I accept and prefer the medical opinions expressed by Dr Hwang and Dr Entwisle and note that Mr Myers was of the opinion that Mr James incapacity for work is as a consequence of his shoulder condition rather than his neck and back condition.
50 On the basis of my findings it is not necessary to deal with the issues concerning work capacity. Even if I had found that Mr James continued to suffer from the work related injuries to his neck and back resulting from the motor vehicle accident on 21 April 2009, I would have found that he has had a ‘current work capacity’ since 17 October 2011 on the basis that I did not find his evidence concerning the amount of work he has been performing to be truthful. He was reluctant to answer questions on his work activities since 2010 and appeared defensive and evasive when pressed on this issue. Although the Notice to Produce records relating to his alleged work activities was only served shortly prior to the hearing, it was possible for Mr James to dispel the assertion that he was working more than he was prepared to admit by producing the record sought, if available, or in the alternative, calling Mr Unver to give evidence. Without this evidence, I was left with the impression and find that Mr James is working many more hours as a VHA/limousine driver than he stated in evidence. I find that he has had a capacity to perform this type of work on a full time basis.
51 Accordingly, Mr James does not have an entitlement compensation beyond 17 October 2011.
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