Juma v Kone Elevators Pty Ltd
[2023] VCC 2277
•13 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04895
| MUWAFAK TOMA JUMA | Plaintiff |
| v | |
| KONE ELEVATORS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25-26 July 2023 | |
DATE OF JUDGMENT: | 13 December 2023 | |
CASE MAY BE CITED AS: | Juma v Kone Elevators Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2277 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
Judgment: Leave granted to plaintiff to issue proceedings at common law to recover damages for pain and suffering.
Leave denied to plaintiff to issue proceedings at common law to recover damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr S Pinkstone | PRD Legal |
| For the Defendant | Mr N J Dunstan | TG Legal + Technology |
HER HONOUR:
Introduction
1The plaintiff, Mr Muwafak Toma Juma (“Mr Juma”), seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings for injury to his left shoulder, right shoulder and right elbow (“the injury”), said to have occurred on 8 January 2019 when he was employed by Kone Elevators Pty Ltd (“the defendant”) as an electrical service technician.
2Mr Paul O’Dwyer SC and Mr Stewart Pinkstone of Counsel appeared on behalf of Mr Juma and Mr Nick Dunstan appeared on behalf of the defendant at the hearing of the application.
3Mr Juma sought leave to bring proceedings for both “pain and suffering” and “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of the injuries.
4At the commencement of proceedings, the defendant conceded Mr Juma had suffered compensable injuries to the left shoulder, right shoulder and right elbow and conceded the pain and suffering portion of the application.
5Therefore, the pecuniary loss issue remained in dispute.[1]
[1]Transcript (“T”) 2, Line/s (“L”) 27-30; T4, L9-13
6The Court must not grant leave under s335(2)(d) unless Mr Juma satisfies two statutory requirements of s325(2)(e) of the Act, which are set out below.
7First, s325(2)(e)(i) requires Mr Juma to show that, at the date of the hearing, he has a current loss of earning capacity of 40 per cent or more as set out in s325(2)(f) (the current “loss of earning capacity” threshold).
8Second, s325(2)(e)(ii) requires Mr Juma to show that he will continue permanently to have a loss of earning capacity of 40 per cent or more (the “permanent loss of earning capacity” threshold).
Legal principles
9The legal principles are well known and not in dispute in this case.
What was not in dispute?
10The parties agreed that the appropriate annualised figure in this case was $155,387.18 which equates to a weekly figure of $2,988.21.
11It was agreed that 60 per cent of the above figures equal $93,232.31 annualised/$1,792.93 per week.
12From January 2022 to August 2022, Mr Juma worked full-time for the Chisholm Institute. He earned $2,029 per week/$105,505 per annum whilst working full-time and it was agreed that such earnings were more than the agreed 60 per cent figure.[2]
[2]T106, L6-16
13At the time of the hearing, Mr Juma was working part-time for the Chisholm Institute. It was not in dispute that Mr Juma’s earnings at the time of the hearing were below the agreed 60 per cent figure.
14To succeed, Mr Juma must establish that he is not capable of earning at least $1,792.93 per week and that this loss will continue permanently.
15For the reasons that follow I have determined that Mr Juma has not satisfied his onus of establishing the requisite pecuniary loss.
Background
16Mr Juma is now aged fifty-eight. He resides with his wife with whom he has three grown children. He was born in Iraq where he completed year 12 and a Bachelor of Science degree in electrical engineering. He then worked in the army before moving to Australia in 2004.
17Upon his arrival in Australia, he worked for short periods in a variety of roles with a number of employers, including as a battery installer for Miele. He then worked as a service technician with Easy Living Home Elevators for 11 years and 7 months.
18In August 2016, he commenced as an electrical service technician for the defendant.
The incident
19Mr Juma alleges on 8 January 2019 he attended the Dandenong Plaza shopping centre to repair an escalator.[3]
[3]Plaintiff Exhibit P21, Plaintiff’s Court Book (“PCB”) 8
20He says he was standing at ground level whilst a colleague was standing in the escalator pit below ground. The colleague handed up an escalator step and Mr Juma had to fully extended his arms to take the step and felt immediate pain in his left shoulder.[4]
[4]Plaintiff Exhibit P2, PCB 8
21He further alleges injury to his right shoulder and right elbow, resulting from overuse of the right limb because of the compensable left shoulder injury.
Post-injury work
22After the injury in January 2019, Mr Juma remained employed with the defendant until January 2020.
23He then went on to work for several other employers in similar maintenance/service technician roles but struggled to perform the required duties.
24He undertook some re-training throughout 2020 and 2021 and commenced with the Chisholm Institute as a vocational teacher in approximately April 2021.
25Initially, Mr Juma was employed in this role on a casual basis but increased to full-time hours in January 2022. He continued to work full-time until August 2022. Since then, he has continued to work three days per week/0.6 full-time equivalent.
The hearing
26The application proceeded in the usual way, albeit, due to time constraints, the proceeding concluded before Senior Counsel for the plaintiff had completed his closing submissions.
27Senior Counsel for the plaintiff was therefore invited to provide any remaining closing submissions to the Court in writing. The defendant was also invited to provide a short reply in writing. Both parties did so.
28Mr Juma tendered affidavits, medical records, and medico-legal reports.
29The defendant tendered medico-legal reports and payslips from Mr Juma’s current employment.
30Only Mr Juma gave viva voce evidence and was cross-examined.
31I have considered all the tendered evidence and Mr Juma’s viva voce evidence and the oral and written submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
Treatment
32The plaintiff underwent surgery to his left shoulder in June 2019; three left shoulder hydrodilatations in October 2019, November 2019, and January 2021; two right shoulder steroid injections in March 2020 and July 2020; surgery to his right shoulder in March 2021; and a right shoulder PRP injection in mid-2021.
Mr Juma’s evidence
33Mr Juma relied upon three Affidavits sworn 25 July 2022, 24 March 2023 and 20 July 2023.[5]
[5] Plaintiff Exhibit P2, PCB 7-23
34At the commencement of the proceeding, Senior Counsel for the plaintiff sought leave from the Court to lead evidence from Mr Juma on several matters not included in his Affidavits.[6]
[6]T16, L30-31 – T17, L1-3
35The defendant did not object to leave being granted.[7]
[7]T18, L13-26
36Senior Counsel for the plaintiff led the following evidence from Mr Juma:
(a) In late 2020, he commenced a Certificate IV in Vocational Training which he completed shortly before May 2021;[8]
(b) At the beginning of 2022, he commenced an associate degree/advanced diploma at Charles Sturt University. Mr Juma undertook the course remotely and completed the course in June 2023;[9]
(c) In the last few months, he had resumed taking Palexia 50mg SR 2-3 times a week;[10] and
(d) He continued to attend physiotherapy and remedial massage, alternating between the two treatments every fortnight.[11]
[8]T19, L27-31 – T20, L1
[9]T20, L 3-15
[10]T21, L 20-23
[11]T21, L23-30
37In his first Affidavit, sworn 25 July 2022 (“first Affidavit”), Mr Juma said:[12]
“19.On around January 2020, after being made redundant by the First Defendant, I began working for Savaria Pty Ltd as a lift technician however I was not able to continue in this role because of my injuries and the pain it caused and so in around October 2020 I quit and began studying a certificate IV in training and assessment.
20. I am currently undertaking an Associates’ degree in adult & vocational education.”
[12]Plaintiff Exhibit P2, PCB 9-10
38In his second Affidavit, sworn 24 March 2023 (“second Affidavit”), Mr Juma said:[13]
“12.Further to my previous affidavit, I completed my Certificate IV in Training and Assessment. This enabled me to obtain a casual teaching job at Chisholm Tafe in around May 2021. I continued teaching on a casual basis until towards the end of 2021 when I successfully applied for a permanent position which I commenced in January 2022.
13. Between January and August 2022, I worked full-time teaching hours but really struggled. I was teaching electro technology subjects and found that working five days a week caused me increased pain in my shoulders and in turn I became more stressed and irritable. The difficulties I have with getting a good night’s sleep meant that I was often very tired during the day and my ability to concentrate for long periods suffered as a result. The medications I was taking compounded the problem as did the postural requirements of working 5 days a week. I took sick leave during this period when I was simply unable to cope going to work. Ultimately, I felt I was not coping with the demands of full-time work, and I reduced my hours to part-time.
14. I continue to work 3 day a week at Chisholm Tafe – generally two days teaching and one day preparing. I continue to teach electro technology subjects. I am currently paid approximately $42 per hour for this work. In addition, I presently receive an allowance for undertaking the associate degree in Adult and Vocational Education and Training I am currently doing at Charles Sturt University.
15. I believe that if I was working full time, or five days per week, in my current role then I would be earning approximately $82,000 per annum which is still significantly less than I was capable of earning prior to the injury I suffered in January 2019.
16. In addition to teaching, I have a small business on the side called Power Flow Electrical which I have operated for many years. In this business I perform basic lift maintenance work typically inspecting controller units and using a multi-metre to check circuits and find faults. I no longer perform any of the more strenuous installation or maintenance work such as that which I was undertaking when I suffered my initial injury in January 2019. I generally only work about half a dozen hours each month in this business. As a Tafe teacher, continuing to work in my business allows me to maintain professional and vocational currency.
17. ... As for working in elevator service and maintenance, after my initial injury I tried my best to manage such work at Koning, Next Level Elevators and then at Savaria Pty Ltd but in each case I ended up being required to perform more physical aspects of each job which I was unable to cope with due to my left shoulder condition, and which I would now also not be able to undertake due to my right and left shoulder injuries separately. ...
18. Although I enjoy the teaching work at Chisholm Tafe because it enables me to draw upon my skills and experience to teach students, it does cause me some difficulties and I believe I am presently working at or close to my limit. Previously I found that I had difficulty coping with full-time hours due to the pain and fatigue I experienced and the problems I had concentrating for long periods as a result of difficulties I have with sleep, pain and the effect of the medication I take.”
[13]Plaintiff Exhibit P2, PCB 15-17
39Mr Juma swore a third Affidavit on 20 July 2023 (“third Affidavit”) in which he said:[14]
“3.I refer to paragraph 13 of my further affidavit and further say that my teaching had a significant practical content which required me to handle a variety of equipment including power equipment, electrical boards, tools, tool boxes and bundles of paperwork. This meant that in the course of my working day, my shoulder pains increased with these activities. I found difficulty in coping with the classes, particularly unruly classes, due to lack of sleep and irritability. I also found that my medication interfered with my concentration and from time to time it made me feel “foggy”. It became apparent to me that I was no longer coping. I attended Dr Shamoun on a number of occasions in June and July 2022 complaining of symptoms and my incapacity to continue my work on a fulltime basis.
4. On 21 July 2022 I had an ultrasound of my right shoulder, arranged by Dr Shamoun. Shortly after this, I spoke with my immediate supervisor, Brett Upton. Brett agreed to allow me to work at 0.6 of full time. I commenced these reduced hours in early August 2022. I was paid for full time hours until 10 September 2022 because of an administrative error. I have not been required to repay the overpayment to 10 September 2022.
5. In June 2023 I finished my Associate Degree in Vocational Training. I had been receiving a study allowance of $564.97 per fortnight. This will be incorporated into my salary and my gross income of $2,483.67 per fortnight will not alter as a consequence of my graduating.
6. I continue to conduct the Powerflow business which involves mainly servicing domestic lifts. I am able to manage this work as I either obtain assistance or use contractors. My profit from this activity for the 2023 year was I believe approximately $1,400. Documents relating to this will be provided by my Solicitors.
7. For the same reasons that led me to reduce my hours in July/August 2022, I do not believe that I can increase my hours. I find it a struggle to keep up my present workload.”
[14]Plaintiff Exhibit P2, PCB 20-21
Was Mr Juma a credible or reliable witness?
40Counsel for the defendant made a sustained attack on Mr Juma’s credibility throughout cross-examination and submitted his evidence about work capacity should not be accepted.
41Mr Juma confirmed during cross-examination that he commenced with the Chisholm Institute on 25 April 2021[15] and that he worked full-time from January 2022 to August 2022.[16] As such, at the time of swearing his first Affidavit on 25 July 2022 he was working full-time.
[15]T34, L1-3
[16]T56, L24-25
42Mr Juma also confirmed during cross-examination that he had been operating a business named Power Flow Electrical (“Power Flow”) since 2017.[17]
[17]T29, L10-17
43Despite this, there was no mention of either the Chisholm Institute employment or Power Flow business in Mr Juma’s first Affidavit.
44The defendant cross-examined Mr Juma at length about the failure to disclose such information in his first Affidavit.
45The Court also directly asked Mr Juma to explain why such information was not included in his first Affidavit and he was unable to do so.[18]
[18]T 29, L18-25 and T32, L1-24
46In submissions, the defendant submitted this was an attempt by Mr Juma to conceal information which he did not think would support his claim, and that he was not a credible witness.
47In submissions, Senior Counsel for the plaintiff disputed that Mr Juma was attempting to deceive the Court and instead maintained the lack of information regarding post-injury employment was a mere omission and that the fault for this lay with Mr Juma’s legal representatives.[19]
[19]T126, L17 and T129, L22-31
48In support of this, Senior Counsel submitted Mr Juma had disclosed to various medical examiners throughout 2021 that he was working for the Chisholm Institute.
49Senior Counsel for the plaintiff maintained unless the Court found that Mr Juma was being intentionally deceptive, then the omission could have no bearing on the Court’s assessment of Mr Juma’s credibility.
Findings on credit and reliability
50In serious injury applications the credit and reliability of the plaintiff will often be critical to the resolution of the application.[20]
[20]See for example Johns v Oaktech Pty Ltd [2020] VSCA 10
51A plaintiff’s credibility and reliability are directly relevant to whether their evidence should be accepted.
52Contrary to the submissions of Senior Counsel for the plaintiff, I do not need to go as far as to make a positive finding that Mr Juma was being intentionally deceptive.
53It is well established that the Court is entitled to consider a range of matters when considering a plaintiff’s credibility or reliability, including inaccuracies or inconsistencies within their Affidavits.[21]
[21]Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
54The Court rejects the submission that fault lies with Mr Juma’s legal representatives, as there is no evidence to support such a submission.
55The omission also cannot be swept away by reference to Mr Juma’s disclosures during medico-legal examinations.
56In weighing and considering all the evidence, I conclude Mr Juma was not a credible or reliable witness because of the following:
(a) Mr Juma’s first Affidavit was misleading about his post-accident work history and the operation of his business. Notably, he was working full-time when he swore the first Affidavit but made no mention of this;
(b) The lack of information regarding Mr Juma’s post-accident work history occurred in circumstances where he had turned his mind to this issue, as evidenced by the fact he disclosed some of his post-injury employment in the first Affidavit. Further, he was clearly aware this was a relevant issue, as this is an application for pain and suffering and pecuniary loss;
(c) He failed to disclose his current earnings at the time of swearing the first Affidavit. This is particularly notable as it is likely his earnings at the time of swearing the first Affidavit exceeded the 60 per cent threshold, as per the concession made by Counsel above (see paragraph 12), albeit his precise earnings as at July 2022 are unknown;
(d) The second Affidavit was a construct as far as it attempted to fix the problems caused by the misleading nature of the first Affidavit;
(e) Prior to the commencement of cross-examination, Mr Juma was asked by the Court whether he could read and understand English, whether he had read his Affidavits prior to swearing them, and if he was satisfied they were accurate at the time they were sworn. He responded in the affirmative and did not attempt to amend the contents therein; and
(f) Mr Juma was unable to provide the Court with any explanation why the relevant employment information was not in his first Affidavit.
57I have therefore viewed Mr Juma’s evidence as to his capacity with caution, and would only accept his assertion that he is currently working to his maximum capacity and that such a restricted capacity is permanent, if there is other objective evidence to support this.
58Further, where there are medical opinions supportive of Mr Juma’s claim in relation to his capacity, these must be looked at considering my views as to his reliability.
Radiology
59Mr Juma tendered what was described as a “bundle of radiological reports”.[22]
[22]Plaintiff Exhibit P3, PCB 24, 25, 26, 33, 41 and 51
60This bundle included an ultrasound of his left shoulder on 31 January 2019 which revealed a full thickness supraspinatus tear and some subacromial bursitis with impingement.[23]
[23]Plaintiff Exhibit P3, PCB 24
61The bundle also included an ultrasound of the right shoulder on 21 July 2022 which revealed a right supraspinatus tendinosis, subacromial bursitis with impingement but no underlying tear.[24]
[24]Plaintiff Exhibit P3, PCB 51
62These were the only actual radiological reports tendered, although it appeared from the medical material that Mr Juma has undergone other investigations.
63The remainder of the bundle related to procedures such as subacromial injections and hydrodilatations.
Plaintiff’s medical evidence
Treating doctors’ reports
Mr Eden Raleigh (orthopaedic surgeon)
64Mr Juma purported to tender two reports of Mr Eden Raleigh dated 6 February 2019 and 27 March 2019.[25] Mr Raleigh was the author of the report dated 6 February 2019 only. The 27 March 2019 report was a letter of Dr Gary Zimmerman.
[25]Plaintiff Exhibit P4, PCB 52
65Mr Raleigh did not provide an opinion on capacity, and given his report is now over four years old, it is of little assistance to the Court.
Dr Gary Zimmerman (sport and exercise medicine physician)
66One report of Dr Gary Zimmerman was tendered dated 27 March 2019.[26]
[26]Plaintiff Exhibit P5, PCB 53, 54
67Dr Zimmerman did not provide an opinion on capacity, and given his report is now over four years old, it is of little assistance to the Court.
Mr Trung Nguyen (orthopaedic surgeon)
68The plaintiff tendered two letters dated 21 October 2020 and 25 November 2020 and one medical report from Mr Trung Nguyen dated 19 June 2023.[27]
[27]Plaintiff Exhibit P6, PCB 63, 68 and 69-76
69The two 2020 letters do not contain any opinion regarding capacity and are of no assistance to the Court in resolving the issues in dispute.
70In his report dated 19 June 2023, Mr Nguyen set out a detailed history of Mr Juma’s progress and his examination findings.
71As at December 2021, Mr Nguyen confirmed Mr Juma had “no problems with his teaching job therefore he was going to apply for a full time teaching position.”
72Mr Juma asked Mr Nguyen for a clearance medical certificate certifying him for full-time work and this was provided by Mr Nguyen.
73Mr Juma reattended Mr Nguyen in December 2022. At which time he complained of persistent right shoulder pain, worsening over the last few months. Mr Juma said he was taking Tramadol. Mr Nguyen recommended he undergo a steroid injection if the pain persisted.
74Mr Nguyen confirmed that at the time of his last examination in December 2022, Mr Juma remained employed in his vocational teaching role. Mr Nguyen was not told that Mr Juma was working reduced hours at that time.
Dr Yousif Shamoun (general practitioner)
75The plaintiff tendered a report of Dr Yousif Shamoun dated 9 October 2020.[28] The report is a single page and merely recorded that Mr Juma sustained a right shoulder rotator cuff injury, consequential to a left shoulder injury.
[28]Plaintiff Exhibit P7, PCB 77
76As such, the only material from Dr Shamoun is two years old and does not provide any opinion on capacity.
77On the second day of the hearing, the plaintiff tendered an Affidavit sworn by Mr Juma’s solicitor, Mr Patrick Rory Donnellan, dated 26 July 2023. The Affidavit detailed numerous unsuccessful attempts to obtain an updated report from Dr Shamoun.[29] The defendant did not object to the Affidavit.
[29]Plaintiff Exhibit P 14, PCB 167-181
78After considering Mr Donnellan’s Affidavit, I draw no adverse inference from the lack of updated material from Dr Shamoun.
Ms Olivia George (physiotherapist)
79The plaintiff tendered three reports from Ms Olivia George dated 17 November 2021, 1 December 2022, and June 2023.[30]
[30]Plaintiff Exhibit P8, PCB 79-93 – the defendant also tendered these reports: Defendant Exhibit D2 DCB 17-23.
80In her report dated 17 November 2021, Ms George confirmed Mr Juma initially presented with stiffness and restriction in his left shoulder but made great improvement and ultimately ceased treatment in January 2020, before then resuming in August 2020 due to a recurrence of left shoulder pain and onset of right shoulder pain.
81In a questionnaire dated 1 December 2022, Ms George opined Mr Juma had “recovered for the most part and only experiences mild-moderate symptoms with sustained positioning and repetitive movements for a prolonged period.”[31] Ms George confirmed Mr Juma was working but did not record the number of hours. It is unclear if she was aware that Mr Juma worked full-time from January 2022 to August 2022.
[31]Plaintiff Exhibit P8, PCB 90
82Ms George’s final report confirms Mr Juma is studying and working as a teacher.
83Ms George did not provide an opinion regarding Mr Juma’s capacity in any of her reports, and Mr Juma conceded during cross-examination that he had not discussed reducing his working hours with Ms George.[32]
[32]T46, L28-30
84Her reports are therefore of limited assistance to the Court.
Extracts of medical records from Parkhill Medical Centre covering the period 17 May 2022 through to 26 July 2022 inclusive
85The plaintiff tendered clinical records from the Parkhill Medical Centre for the period 17 May 2022 through to 26 July 2022.[33]
[33]Plaintiff Exhibit P13, PCB 142-144
86The notes revealed that Mr Juma attended the clinic a total of seven times during this period. The attendances relevant to the current application were on 17 May 2022, 24 May 2022, 14 June 2022, 12 July 2022, and 26 July 2022.
87On 24 May 2022, the notes record (inter alia):
“SHOULDER PAIN
...
WORK AND STUDY STRESS
NO TIME FOR SWIMMING/GYM FOR RIGHT SHOULDER REHABTHINKING TO WORK PART TIME” (capitalised in original)
88Mr Juma next attended on 14 June 2022 and the notes recorded:[34]
“unable to work full time
been unable to attend the gym this makes shoulder worse
discussed need to try part time work to get more time for physio and gym”
[34]Plaintiff Exhibit P13, PCB 143
89The notes reveal that there were two discussions with Dr Shamoun relating to Mr Juma’s working hours.
90The Court is not able to determine whether Dr Shamoun supported any alteration to working hours, in the absence of any opinion from him on this issue.
Plaintiff’s medico-legal evidence
Associate Professor Evange Romas (consultant rheumatologist)
91Two reports of Associate Professor Evange Romas were tendered by the plaintiff dated 11 December 2020 and 27 January 2022.[35]
[35]Plaintiff Exhibit P9, PCB 98-107
92In the initial report Associate Professor Romas concluded Mr Juma’s condition was not stable and his prognosis was unclear given the impending surgery.
93In the second report, dated 27 January 2022, Mr Juma complained of bilateral shoulder pain, worse in the left. He reported managing the condition with physiotherapy and Panadol. He confirmed he was working at the Chisholm Institute.
94Associate Professor Romas performed an impairment assessment in his second report and made no comments on capacity.
95Consequently, Associate Professor Romas’ reports are of little assistance to the Court.
Dr James Rowe (specialist occupational physician)
96The plaintiff tendered a report of Dr James Rowe dated 9 August 2022.[36]
[36]Plaintiff Exhibit P11, PCB 117-125
97Mr Juma reported he commenced a certificate IV in training and assessment in June 2020 but ceased studying in September 2020 as the workload was too challenging.
98Mr Juma confirmed he was working 20 hours per week at the Chisholm Institute.
99Dr Rowe recorded restricted range of movement in both shoulders, as well as painful and limited abduction, adduction, flexion, and extension and an abnormality of his left elbow.
100Dr Rowe concluded the Chisholm Institute role appeared to be suitable employment and that Mr Juma was working to capacity given his functional restrictions.
Mr Thomas Kossmann (orthopaedic surgeon)
101The plaintiff tendered a report of Mr Thomas Kossmann dated 28 March 2023.[37]
[37]Plaintiff Exhibit P12, PCB 126-138
102During the examination, Mr Juma complained of being unable to lie on either shoulder at night and being awoken if he rolled over in his sleep. He reported that sleep deprivation was impacting on every aspect of his life, particularly on his teaching, as it had caused difficulties with his short-term memory, concentration and anger management.
103Mr Juma confirmed he had obtained alternative employment at the Chisholm Institute in May 2021. He reported he was working three days per week in the role and studying an associate degree.
104Mr Kossmann observed restricted movement in both shoulder joints and pain over the lateral epicondyle on the right side.
105Mr Kossmann opined there was a risk of deterioration of the shoulders and elbow causing further incapacity but could not provide a timeframe for this.
106Mr Kossmann recommended a raft of further treatment, including medication, maintenance physiotherapy, hydrotherapy, a referral to a pain management specialist, PRP injections into both shoulders on a repeat basis, and referral to a neuropsychologist and psychiatrist for treatment of the sleep deprivation.
107In terms of capacity, Mr Kossmann opined that Mr Juma should be able to continue to work on a 0.6 full-time equivalent basis and that he may not be able to work full-time due to the sleep deprivation.
Dr Hillol Das (consultant psychiatrist)
108The plaintiff tendered extracts of a report of Dr Hillol Das dated 21 July 2021.[38] The purpose of this was to confirm Mr Juma reported during the examination that he had obtained work with the Chisholm Institute.
[38]Plaintiff Exhibit P1, PCB 56, 60
109As discussed above, this does not undo the non-disclosure within the first Affidavit, and the report is otherwise of no relevance to the issues in dispute in the current application.
Dr Francis Ghan (consultant orthopaedic surgeon)
110The plaintiff also tendered extracts of a report of Dr Francis Ghan dated 28 April 2021,[39] for the same purpose discussed above in paragraph 107.
[39]Plaintiff Exhibit P10, PCB 108, 110 and 112
111As discussed above, this does not undo the non-disclosure within the first Affidavit, and the tendered portion of the report is otherwise of no relevance to the issues in dispute in the current application.
Defendant’s medical evidence
Treating doctors’ reports
Mr Trung Nguyen (treating surgeon)
112The defendant tendered reports and letters from Mr Nguyen dated 14 April 2021, 5 August 2021, 21 September 2021, 9 December 2021, and 14 December 2021.[40]
[40]Defendant Exhibit D1, Defendant’s Court Book (“DCB”) 5-16
113These documents effectively mirror the information and opinions contained in Mr Nguyen’s report dated 19 June 2023.
Defendant’s medico-legal evidence
Dr Joseph Slesenger (occupational physician)
114The defendant tendered two reports of Dr Joseph Slesenger dated 10 January 2020 and 4 May 2023.[41]
[41]Defendant Exhibit D 3, DCB 40-50, 65-82
115In the initial report, Mr Juma reported ongoing left shoulder pain and restriction. Mr Juma confirmed he was about to commence full-time work with a new employer in a similar technician role. Dr Slesenger recorded severe restriction in the left shoulder and raised concerns about Mr Juma returning to a physical role on a full-time basis.
116At the next attendance on 1 May 2023, Mr Juma complained of persistent right shoulder and right elbow pain and restriction.
117Mr Juma said he had ceased with the previous employer, as the work was too demanding.
118Mr Juma said he initially worked full-time in the role at the Chisholm Institute but reduced to three days per week. Mr Juma told Dr Slesenger he was also undertaking an associate degree which involved studying up to 15 hours per week.
119Dr Slesenger performed a clinical examination and compared the findings from his examination in 2020 to those in 2023.
120Dr Slesenger opined:
“I note that the right shoulder range of movements well-preserved, these are now severely restricted. The left shoulder movements are similar. However, I also noted a number of inconsistencies including:
· Improved range of movements upon distraction.
· Absence of wasting around both shoulders.
I am of the opinion that there is at least in part a functional element to Mr Juma’s presentation.”[42]
[42]Defendant Exhibit D3, PCB 78
121Mr Juma said he was taking Panadol Osteo daily and Palexia 3-4 times a week at night.[43] He also said he had been recommended a further steroid injection into his right shoulder but was reluctant to undergo the procedure.
[43]Defendant Exhibit D3, DCB 71
122Dr Slesenger considered Mr Juma’s reporting of symptoms to him was inconsistent with his presentation to Mr Nguyen and that his response to the shoulder surgeries was likely to be better than what was demonstrated and described during the examination.
123Dr Slesenger considered Mr Juma had capacity to work full-time in his current role.
Dr Terence Saxby (orthopaedic surgeon)
124The defendant tendered a report of Dr Terence Saxby dated 5 June 2023.[44]
[44]Defendant Exhibit D3, PCB 93-104
125Mr Juma confirmed he ceased physical work after the injury. He said from 2021 to date he had been working as a trade teacher, which was a less physical role. Mr Juma reported he was employed on a casual basis but worked part-time hours.
126Dr Saxby recorded that the range of movement in both shoulders was more restricted than he would have expected, particularly given Mr Nguyen’s comments in December 2021 that the right shoulder condition had resolved.
127In considering his examination findings and the radiological images, Dr Saxby records:
“There may well be a degree of functional overlay or abnormal illness behaviour. I would have expected Mr Juma to have quite better range of motion than he exhibits.”
128Dr Saxby said Mr Juma may be able to return to his pre-injury role, but this would not be an ideal outcome, as the heavy and repetitive lifting would place significant strain on his shoulders.
129In terms of alternative work, Dr Saxby considered there was no reason Mr Juma could not increase his hours to full-time in his current role.
Submissions
130The submissions focused on three main areas:
(a) The opinions of Mr Juma’s treating doctors;
(b) Mr Juma’s capacity to concurrently work and study;
(c) Findings upon clinical examination.
131In terms of treating doctors, Counsel for the defendant submitted there were no reports from Mr Juma’s treaters, being Dr Shamoun, Mr Nguyen or Ms George, which explained why he could not undertake full-time work as a vocational teacher.
132Mr Juma conceded in cross-examination that he had not discussed reducing his hours at all with Mr Nguyen.[45] He also conceded he could not name a single treating doctor who had told him he could not work full-time as a vocational teacher.[46]
[45]T43, L10-14
[46]T62, L10-18
133Senior Counsel for the plaintiff accepted there was no report from any treating doctor opining that Mr Juma was limited to part-time hours.
134However, Senior Counsel submitted the clinical notes of Dr Shamoun provided contemporaneous evidence that Mr Juma struggled with shoulder pain throughout 2022 and was ultimately forced to reduce his hours.
135The defendant accepted there was some reference in the clinical records to flare-ups and work and study stressors in 2022.
136However, the defendant submitted such notes had to be examined within the context of Mr Juma juggling full-time work and study.
137During cross-examination, Mr Juma confirmed whilst he was working full-time throughout 2022, he was also completing his associate degree which required him to study between 10-15 hours per week at home.[47]
[47]T60, L13-18
138Mr Juma conceded the additional time spent studying at the computer had aggravated his shoulders. This was also confirmed by Ms George in her reports.
139The defendant therefore submitted the clinical notes were evidence of a temporary setback, rather than a permanent reduction in earning capacity, and that at the time of the hearing Mr Juma had capacity to work full-time.
140Senior Counsel for the plaintiff disputed that Mr Juma had capacity for full-time work.
141Senior Counsel for the plaintiff accepted this was contradictory to the findings of Mr Nguyen, who had certified Mr Juma as fit for full-time work in 2021.
142Senior Counsel submitted Mr Nguyen’s conclusion was relevant to the 2021 period, and that by 2022 the clinical picture had evolved. The plaintiff submitted at the time of the hearing, Mr Juma had not entirely recovered from his shoulder injuries.[48]
[48]T140, L3-13
143In support of this, Senior Counsel particularly focused upon the examination findings of Associate Professor Romas.[49] It was submitted Associate Professor Romas’ report was evidence that there remained “a lot to be found on examination”.[50] It was also submitted there was no suggestion by Associate Professor Romas that Mr Juma was “putting it on”.[51]
[49]T135
[50]T140, L23-25
[51]T140, L11-13
144Senior Counsel for the plaintiff therefore submitted Mr Juma was exhibiting signs inconsistent with a person who had fully recovered from bilateral shoulder injuries, and that it was open to the Court to accept he was incapacitated for full-time work.[52]
[52]T141, L27-30
145The plaintiff also relied upon the opinions of Dr Rowe and Mr Kossmann in this regard.
146In response, the defendant submitted the opinion of Dr Rowe should not be accepted, as his report did not include a description of the duties of the vocational teaching role. The defendant also submitted neither Dr Rowe or Mr Kossman were informed that Mr Juma had worked full-time from January 2022 to August 2022.
Findings
147The difficulty the plaintiff faces in this case is that his credit has been impugned to such an extent that the medical material upon which he seeks to rely is also, to an extent, undermined.
148In a novel submission, Senior Counsel for the plaintiff submitted the lack of a fulsome post-injury employment history given during the examination by Mr Kossman was irrelevant, as Mr Kossmann had been asked to provide an opinion on capacity at the time of the examination in 2023. This submission cannot be accepted.
149I accept that Mr Kossmann was not told by the plaintiff that he had ever worked on a full-time basis at Chisholm Institute, nor was he told that the plaintiff was operating his own business.
150Mr Juma’s capacity to work full-time in 2022 was clearly information which would have been relevant to Mr Kossmann had he been informed of it. Mr Kossmann’s opinion therefore has been based on a false premise.
151Similarly, Dr Rowe’s opinion that the plaintiff was working to his capacity is problematic, as he was also not told that the plaintiff had returned to any full-time work.
152Dr Rowe concluded Mr Juma was undertaking such employment “with difficulty,” but he did not discuss the nature of Mr Juma’s employment with him or refer to any specific restrictions impacting upon Mr Juma.
153I accept the defendant’s submission that Dr Rowe’s report lacks a clear path of reasoning.
154I further find that there is a lack of specificity in Dr Rowe’s report as to the degree of the abnormality which he says he found on clinical examination. This lack of specificity was conceded by Senior Counsel during submissions. As such, Dr Rowe’s findings do not assist the Court in ascertaining what the effect of any such abnormality is on Mr Juma’s work capacity.
155I note that Dr Slesenger and Dr Saxby both expressed the view that the plaintiff has a capacity to work in his current job on a full-time basis.
156I prefer their findings in relation to capacity, over those of Dr Rowe and Mr Kossmann, as I find that they both had an accurate and fulsome history of the plaintiff’s post-injury employment and were cognisant of that history when expressing their opinions.
157However, as far as Dr Saxby expressed the qualified opinion that the plaintiff had the capacity to return to his pre-injury role, I do not accept that opinion.
158No other medical examiner has suggested that Mr Juma could return to his pre-injury work.
159On this point Dr Saxby is an outlier. In any event his opinion was qualified as follows:
“...he may be able to return to his pre-injury duties but it is not certain. ... it is possible that he may return to this type of work but given that he has now had surgery on both shoulders, I would believe that it is probably not an ideal outcome.”[53]
[53]Defendant Exhibit D4, DCB 102
160Senior Counsel for the plaintiff submitted Dr Saxby had merely repeated the opinion of Mr Nguyen. I reject this submission, as it does not have any proper foundation. Dr Saxby conducted a clinical examination, reviewed radiology and medical reports. The mere fact he formed an opinion similar to Mr Nguyen’s was not enough to suggest Dr Saxby had not reached his own conclusion.
161Having considered all the evidence, I do not accept that any current reduction in the plaintiff’s work hours is permanent.
162In addition, having considered all the evidence, I have formed the view that Mr Juma currently has a capacity for full-time work which he, for reasons which are unclear, has decided not to exercise.
163Given this finding I find that Mr Juma has the capacity to earn $2,029 per week/$105,505 per annum.
164Given that the agreed 60 per cent figure is $93,232.31 annualised/$1,792.93 per week, I find that pursuant to s325(2)(e) the plaintiff has not established that he has sustained a loss of earning capacity of 40 per cent or more on a permanent basis.
Conclusion
165Leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering damages.
166The application in relation to loss of earning capacity fails.
167I will hear the parties on the issue of costs.
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