Kramkimel v Country Fire Authority
[2023] VMC 6
•20 March 2023
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. M11278823
| SERGE KRAMKIMEL | Plaintiff |
| v | |
| COUNTRY FIRE AUTHORITY | Defendant |
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MAGISTRATE: | Magistrate M J Richards |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2023 & 1, 2, 3 February 2023 |
DATE OF DECISION: | 20 March 2023 |
CASE MAY BE CITED AS: | Kramkimel v Country Fire Authority |
MEDIUM NEUTRAL CITATION: | [2023] VMC 6 |
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WORKERS’ COMPENSATION — Accepted claim for compensation with a specific date of injury — Plaintiff returned to pre-injury duties after two weeks — Resigned from employment 12 years later — Subsequent course of employment claim for compensation for injury to same body part — Claim for compensation rejected — Request for surgery to same body part later accepted — Request for reinstatement of weekly payments — Weekly payments reinstated on earlier claim for compensation but only from date of surgery — Payments not made from date of resignation to date of surgery — Whether resignation for reasons unrelated to incapacity — Significant contributing factor with respect to course of employment claim for compensation — Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr S Dawson | Hounslow Lawyers |
| For the Defendant | Mr A Macaskill | IDP Lawyers |
HIS HONOUR:
INTRODUCTION
Serge ‘Ben’ Kramkimel (plaintiff) was born on 12 December 1958 and is currently 64 years of age. The plaintiff commenced employment with the Country Fire Authority (defendant) as a Communications Technical Services Officer (CTSO) on 10 November 1986.
The plaintiff sustained an injury to his right shoulder at work on 25 October 2007, he was off work for a brief time and returned to work as a CTSO on 7 November 2007.
As a result of the injury to his right shoulder, the plaintiff completed a claim for compensation on 7 November 2007 (the first claim).[1] Allianz Australia Worker’s Compensation (Victoria) Limited, the defendant’s Workcover insurer at the time, accepted the claim for compensation by notice dated 10 December 2007.[2]
[1]Joint Court Book (JCB), 16-17.
[2]JCB,18-19; Claim number 09070046803.
The plaintiff continued working for the defendant as a CTSO until resigning on 5 September 2019.[3] The plaintiff has not returned to employment since that date.
[3]JCB, 223.
The plaintiff completed a further claim for compensation on 30 September 2020 alleging an injury to his right shoulder from 2007 and over time to 2019 (the second claim).[4] The plaintiff stated the following:
I initially had a fall on 25th October 2007 and subsequently my condition has deteriorated with lifting, stretching, pulling and strain on my right shoulder as a result of my work duties over time.
[4]JCB, 38-41.
The plaintiff described his work duties as:
Climbing poles, carrying heavy batteries, long periods of driving and general physical duties.
CGU Workers Compensation (Vic) Limited (CGU), the then Workcover insurer of the defendant, rejected the claim for compensation by notice dated 23 December 2020.[5] CGU stated the following:
CGU can confirm that you had an accepted claim for a right shoulder injury sustained from a fall at work on 25 October 2007 (Claim number 09070046803). The claim was closed after you made a full return to work on 26 October 2007.
CGU has determined to reject your claim on the following grounds:
a. Your entitlement to compensation (if any) is considered to exist on claim 09070046803.
[5]JCB, 50-53.
CGU referred to the medical report of Dr Sean Low, an Occupational Physician, who had examined the plaintiff on their behalf. CGU stated:
During the examination, you advised Dr Low that since the fall from work on 25 October 2007, that your shoulder pain did not resolve even after undergoing treatment. You advised that (you) did not pursue further treatment until you retired. Based on the history you provided, Dr Low diagnosed your injury as a right shoulder rotator cuff injury with evidence of a SLAP tear. He opined that your current condition is a continuation of your original shoulder injury sustained from the fall on 25 October 2007.
Based on the above information, CGU considers that you did not sustain a ‘new’ injury and that your entitlements for your right shoulder is considered to exist on claim 09070046803. CGU will re-open and reinstate your entitlements under the claim 09070046803.
In or about February 2021, Mr Brendan Soo, an orthopaedic surgeon, made a request to CGU for permission to perform a right shoulder arthroscopic decompression, bursectomy, biceps tenodesis and rotator cuff repair (supraspinatus and subscapularis) on the plaintiff. The request for surgery was approved by CGU by notice dated 18 March 2021.[6] The surgery was scheduled to take place on 10 June 2021.
[6]JCB, 22-24.
On 26 May 2021, Hounslow Lawyers, the plaintiff’s solicitors, wrote to Gallagher Bassett Services Pty Ltd (Gallagher Bassett), the current Workcover insurer of the defendant, stating liability for the proposed surgery arose as a result of the second claim and that proceedings would be issued in the Magistrates Court.[7]
[7]JCB, 25.
The plaintiff underwent surgery to his right shoulder on 10 June 2021.
On 3 March 2022, Hounslow Lawyers, wrote to Gallagher Bassett requesting that weekly payments of compensation be reinstated on the first claim, given the previous notice dated 23 December 2020, and the subsequent decision to accept liability for the right shoulder surgery. Hounslow Lawyers provided Gallagher Bassett with certificates of capacity from 16 October 2020 and advised that weekly payments would also be claimed for the period prior to that date once further medical information was obtained.[8]
[8]JCB, 26-27.
On 11 May 2022, Gallagher Bassett advised the plaintiff that weekly payments of compensation with respect to the first claim would be paid from 10 June 2021, the date of the surgery, to 2 September 2021, being a 12 week period post the approved surgery. Gallagher Bassett further advised the plaintiff that an Independent Medical Examination (IME) with an orthopaedic surgeon had been arranged on 23 May 2022 to review the plaintiff’s ongoing entitlements and incapacity.[9]
[9]JCB, 28-31.
On 17 June 2022, Gallagher Bassett advised the plaintiff that, following the IME by Mr Russell Miller on 23 May 2022, the request for reinstatement of weekly payments of compensation had been accepted. Gallagher Bassett stated that weekly payments of compensation would be reinstated from 3 September 2022 on the first claim with a date of injury of 25 October 2007.[10]
[10]JCB, 32-37.
Gallagher Bassett did not reinstate weekly payments for the period from 6 September 2019 to 9 June 2021.
The plaintiff completed a claim for impairment benefits on 18 July 2022 for an injury to the right shoulder over the course of his employment with the defendant up to 5 September 2019.[11]
[11]JCB, 55-56.
Gallagher Bassett rejected the plaintiff’s impairment benefits claim on 12 August 2022 and referred to the decision dated 23 December 2020 to reject liability for the second claim. Gallagher Bassett determined that the plaintiff had not sustained a ‘new’ injury and any entitlements for the right shoulder injury was considered to exist on the first claim. Gallagher Bassett stated that a decision had been made to re-open and reinstate the plaintiff’s entitlements on the first claim.[12]
[12]JCB, 57-59.
The plaintiff issued proceedings in the Magistrates Court seeking to set aside the decisions dated 23 December 2020, 17 June 2022, and 12 August 2022.[13]
[13]JCB, 7-10.
In effect, the plaintiff is seeking weekly payments of compensation from 5 September 2019 to 9 June 2021 with liability for compensation since 6 September 2020 being accepted as a result of the second claim and not as a result of the first claim.
The defendant maintains any liability for compensation since 5 September 2020 is a result of the first claim. In particular, the defendant says:
a. the plaintiff did not sustain any further injury to his right shoulder ‘as a result of stretching, pulling and strenuous work’ after the first claim and/or employment was not a significant contributing factor to any further injury;
b. the plaintiff was not incapacitated for pre-injury employment and/or suitable employment between 5 September 2019 and 9 June 2021;
c. any incapacity (which is denied) was not materially contributed to by employment;
d. the plaintiff is not entitled to weekly payments of compensation due to the operation of section 185(1)(e)(i) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act), because the plaintiff retired for reasons unrelated to his claimed incapacity;
e. with respect to the second claim, the plaintiff has not suffered an injury arising out of or in the course of his employment;
f. with respect to the second claim, if the plaintiff has suffered an injury, which it denies, that injury is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease to which his employment was not and/or is not and/or is no longer a significant contributing factor;
g. if the plaintiff has an entitlement to weekly payments and/or medical and like expenses, which it does not admit, that entitlement exists with respect to the first claim;
h. if the plaintiff has an entitlement to an impairment benefits claim, it exists on the first claim, and a determination and/or declaration of liability should be sought on the first claim.[14]
[14]JCB, 11-15.
The proceeding proceeded over three days. Evidence was given by the plaintiff, Mr Robert Opitz, a former employee of the defendant and Mr Mehmet Yusuf, a current employee of the defendant. The parties provided a joint court book which was tendered by consent and marked Exhibit 1.
THE EVIDENCE
The Plaintiff
Evidence-in chief
The plaintiff gave evidence that he worked for the defendant as a CTSO from late 1986 until ceasing work on 5 September 2019. His work involved providing technical support for the ongoing maintenance and installation of communications equipment throughout Victoria. This work included maintaining the defendant’s communications systems in vehicles and fire trucks, fire stations and fire towers throughout Victoria. The plaintiff said this work was physical and demanding.
In doing this work, the plaintiff said he would drive a manual transmission four-wheel drive vehicle all over the state. When servicing fire towers in remote areas the plaintiff would have to drive over rough terrain to access those sites. His role involved replacing batteries and testing equipment in fire towers which he would have to physically carry as he climbed up the fire towers. The batteries and equipment were heavy. Normal batteries weighed between 15 to 32 kilograms. Hill top sites required bigger batteries which weighed over 20 kilograms each. These batteries were two volts each and six batteries in total were required. The plaintiff said he would have to make six trips up and down the fire tower when replacing these batteries.
The plaintiff said he would have to unload the communications equipment and batteries from his vehicle once he arrived at the fire huts and towers. Whilst trolleys were provided, communications sites were usually in the state forests and the terrain meant the trolleys were difficult to use. The plaintiff said he would have to unload and carry the equipment himself because he would be unable to pull or push the trolley along the ground. The plaintiff said the equipment, including radios and batteries, were loaded in communication racks at the workstation. The racks had to be installed at the site after he had transported them there. The racks were approximately two metres high, half a metre wide and one metre deep. The plaintiff was shown five photographs of racks loaded with communications equipment such as batteries and radios and he agreed they were typical of the racks that he would have to load and unload at sites.[15]
[15]JCB, 254-258.
The plaintiff said he would sometimes do this work on his own and would sometimes work with another employee. The plaintiff said he would get assistance depending on the site and the job. If the job involved taking and installing two or three racks, two people would normally go to the site. Some jobs were one person jobs. If the plaintiff was working on his own, he would park close to the fire hut and drag the racks from the trailer, slide them to the ground and drag, pull, or slide the racks to the hut. The plaintiff said he would usually slide the racks onto cardboard that he had placed on the ground leading to the hut. The plaintiff said he would then lift the rack up and bolt the rack into the ground in the hut. The plaintiff said he would often remove the heavier equipment from the rack when taking it from the trailer to the hut. The plaintiff would then have to manually put the equipment back into the rack. Some of this equipment had to be carried and placed above head height once the rack had been installed. He would try and put the heavier equipment at the bottom of the rack. The plaintiff said he was not provided with lifting equipment to do this.
The plaintiff said the radios weighed up to 25 kilograms and would be assembled at the site if too heavy. The radio power supplies would weigh approximately 30 kilograms.
In the early days of his work, the plaintiff said he would also do the wiring installation that was required for new fire stations. This would involve installing speakers and internet points and climbing into the roof of the station to lay cabling. The plaintiff said he would have to use a step ladder to do this, and it was very uncomfortable installing speakers into the ceiling by hand as this would put stress on his body and his arms. In the later years of his employment, contractors were employed to do the installation work for new stations.
The plaintiff said work on the fire huts was at ground level. Work on the fire spotting towers necessarily involved climbing up a ladder and carrying equipment. The plaintiff said he would have to climb up the ladder holding a replacement battery in one hand and holding onto the ladder with his other hand. The plaintiff was shown a photograph of a fire station tower taken on 27 June 2019.[16] The plaintiff said it depicted him standing in front of a fire station tower that he would have to climb up to replace a battery or maintain equipment in the hut at the top of the tower. The plaintiff said he would replace batteries in the tower huts. The plaintiff said he would have to climb to the top of the tower with the new battery, which weighed about 15 to 22 kilograms, and the tools that he needed, to replace the batteries. He would also have to carry testing equipment in a large box which weighed about 16 kilograms. The plaintiff was shown a photograph of two vehicles parked at a fire station tower.[17] The plaintiff said the photograph had been taken from the top of the tower looking down at the vehicles. The plaintiff said he had taken the photograph on 27 June 2019 and the white vehicle was his car. The plaintiff said it was the last fire tower he had climbed whilst employed by the defendant. The plaintiff said there was a dirt road in the photograph leading to the tower which was undulating and bouncy to drive on. The plaintiff said he would sometimes have to inspect new sites where a radio hut was to be installed where there were no roads at all.
[16]JCB, 225.
[17]JCB, 226.
The plaintiff said he would have to work on fire trucks and install new aerials. He would have to climb up onto the fire truck using a step ladder and lean over the truck to install the aerial. The plaintiff said the work was uncomfortable and placed stress on his body and arms. The plaintiff said he would sometimes have to jump onto the truck roof to get to the aerial.
The plaintiff said he was rostered to work as the after-hours duty officer and would be called to deal with work issues outside normal work hours.
The plaintiff said the above work was typical of the maintenance and installation work he did from 2007 to 2019. The plaintiff said it was physical work and hard, but it had to be done. The plaintiff said he liked the work but did not know the extent to which it was affecting his right shoulder after initially injuring his shoulder on 25 October 2007. The plaintiff said any work over that time involving the use of his right shoulder was physically difficult as he had problems stretching his arm. The plaintiff said he would try to avoid doing work where he had to stretch his arm.
The plaintiff said he would often drive up to 600 kilometres a day and would average 2000 kilometres a week. The plaintiff said he would have to use his left hand to change gears and would have trouble holding onto the steering wheel with his right hand because of his shoulder. The plaintiff was right hand dominant.
The plaintiff said his work also involved office work which meant he would have to sit at a desk using a laptop. The plaintiff said this work put strain on his right shoulder when using the mouse and keyboard and it gradually became harder for him to perform the office work over the years.
The plaintiff said he had to take painkillers to keep working even though he did not like taking them. The plaintiff said taking painkillers on a regular basis caused him stress as a result. The plaintiff said he normally received five repeats every time he was prescribed Tramadol.
The plaintiff was referred to an entry from the clinical notes of the Warburton Medical Group by Dr Evette Markos on 28 February 2019:
History; repeat medications.
Doing well.
But a lot of work stress.
Needs rest.
Reason for visit;
Medical certificate/stress.
The plaintiff was asked why he attended Dr Markos on that day. The plaintiff said his ability to do things at work was causing him stress. His right shoulder was painful, and he was having to take Tramadol to work, and this was causing him to become stressed.
The plaintiff said it was becoming harder and harder for him to continue working for the defendant and it was becoming more of a struggle in 2019. The plaintiff said he was in a lot of pain with his right shoulder. As a result, he emailed his manager, Mr Yusuf on 28 May 2019, and advised him that ‘after 32 years it is time for me to retire’.[18] The plaintiff told Mr Yusuf that his final date would be 6 September 2019. The plaintiff ceased work on 5 September 2019. The plaintiff said he had turned 60 years of age and was able to access his superannuation and decided to resign and use the payout to finish the house he was building. The plaintiff said that, but for the injury to his right shoulder, he would have continued working for the defendant until reaching retirement age and would not have accessed his superannuation.
[18]JCB, 223.
The plaintiff said his right shoulder pain did not go away after ceasing work. However, the plaintiff said he had more time to get treatment and started having myotherapy to try and ease the pain and cease taking Tramadol. He started seeing Michelle Fisher, a myotherapist, in October 2019 on a weekly basis. The plaintiff said myotherapy would help for a couple of days and the pain would then come back. The plaintiff said Ms Fisher eventually told him to have a magnetic resonance imaging scan (MRI) of his right shoulder which he underwent on 13 August 2020.
Cross-examination
The plaintiff agreed he initially injured his right shoulder when he tripped at work and hit his shoulder on 25 October 2007.
The plaintiff agreed the defendant’s Workcover insurer paid for the surgery to his right shoulder on 10 June 2021 and that he had been in receipt of weekly payments of compensation since that date.
The plaintiff was asked about seeing Mr Rod Dalziel, an orthopaedic surgeon, at the request of his general practitioner in 2008. In a report dated 4 September 2008,[19] Mr Dalziel stated the plaintiff:
… tripped over a piece of wood at a Fire Station, falling onto the right side of his face and shoulder. He had a substantial impact injury and had ongoing pain, stiffness and physical limitations.
[19]JCB, 78-79.
The plaintiff agreed with Mr Dalziel’s comments that he had sustained:
… a direct impact injury to the area of the shoulder which has retained its pain but not associated with any objective loss of movement or loss of strength at this stage, having recovered well in his functional modalities.
The plaintiff did not agree that his right shoulder function had stayed the same since seeing Mr Dalziel. The plaintiff said his right shoulder function had got worse over time.
The plaintiff was referred to a report from Mr Owen Deacon dated 3 August 2008.[20] Mr Deacon saw the plaintiff on behalf of Allianz on 30 July 2008. The plaintiff was asked about the following comment from Mr Deacon:
The worker does have a current work capacity, in fact he is doing his pre-injury job now and has been except for the first week after the injury when he had some time off, but he is in constant pain doing it.
[20]JCB, 110-119.
The plaintiff said he continued doing his work duties until ceasing work in 2019 but his right shoulder was getting worse, and he was having more limitations in lifting his arm. The plaintiff said taking pain killers helped him manage but his arm function was getting more limited and overhead work was becoming too difficult.
The plaintiff said he was installing wiring at new fire stations until approximately 2017/2018 when contractors took over. The plaintiff said he used his left hand to carry equipment as he climbed up fire towers. The plaintiff said he would use his dominant right hand to pull him up the ladder and this caused problems. The plaintiff said the work was becoming increasingly difficult with his right shoulder issues.
The plaintiff agreed most of his work involved maintenance work rather than installation work. However, the plaintiff said installation work was regularly conducted on new sites and new buildings. Maintenance work was an ongoing job between installation work.
The plaintiff said he took on the role of a Fixed Radio Infrastructure & Telemetry Co-ordinator in 2015 which involved working with microwave and telemetry. The plaintiff disagreed that this role meant he spent about 80 per cent of his time in the office and 20 per cent of his time in the field from 2015. The plaintiff said the office where he worked was also the defendant’s workshop where the equipment was assembled.
The plaintiff estimated he would have worked in the office about 30 per cent of the time from 2007 to 2019 and the balance of the time in the field. The plaintiff agreed that part of the work in the office involved monitoring sites. If there was a problem at a site, the plaintiff said sometimes he would attend the site and sometimes, another employee would attend.
The plaintiff agreed that he would have trolleys to use in the field but said they were not practical if the terrain was rough which was normally the situation. The plaintiff agreed two or more employees would be used for large jobs in the field and riggers were also available to help with the structure of new sites.
The plaintiff agreed the last time he climbed a fire tower was in June 2019.
The plaintiff said he would replace the antennas on a fire truck when they were broken, damaged or faulty.
The plaintiff was asked about various attendances at the Warburton Medical Centre and the Launching Place Medical Centre since 2007.[21] The plaintiff also attended the Emma Court Medical Centre.[22]
[21]JCB, 177-213; JCB, 232-243.
[22]JCB, 244-248.
The plaintiff was referred to an attendance on Dr Megan Hunter on 13 November 2010 where he mentioned he had ‘longstanding R shoulder/clavicle’ issues. On 16 May 2012, the plaintiff attended Dr David Church and complained of low back pain in recent months. The plaintiff mentioned that a friend had given him some Tramadol which he had found helpful. Dr Church warned him about the risks of this and suggested he try Panadol Osteo first. The plaintiff was given a prescription for Tramadol (50 milligrams, 1 twice a day if required). The plaintiff agreed that this was the first time that he had been prescribed Tramadol.
On 2 August 2012, the plaintiff attended Dr Church with a history of two weeks pain in the right buttock radiating to the right thigh. The plaintiff said he had tried his friend’s Tramadol Sustained Release 200 milligrams tablets (Tramal SR 200) which had proved helpful. He had previously tried Panadol Osteo without effect. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day).
On 6 June 2013, the plaintiff attended Dr Church for bursitis in his elbow and was prescribed Tramadol (200 milligrams, 1 twice a day if required).
On 21 August 2013, the plaintiff attended Dr Soh Ai Chua and requested pain medication for right hip pain. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day if required).
The plaintiff said he was prescribed Tramadol medication for his shoulder, hip, and elbow whenever he was in pain.
On 29 October 2013, the plaintiff saw Dr Church and requested Tramadol for an injury to his right forearm when lifting the day before. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day if required).
On 6 June 2014, the plaintiff attended Dr Santhi Kosaraju and described having had pain in his right hip for two years and having taken Tramadol on and off. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day if required).
The plaintiff said he had wanted to stop taking Tramadol on a regular basis, but it was the only pain killer that helped him.
On 31 October 2014, the plaintiff attended Dr Kosaraju. The following entry was made:
Wanting script for Tramadol for hip and shoulder pain.
Says called David, who advised him to come in.
Sees chiropractor, 1 leg shorter.
Shoulder old injury.
Been to specialist.
Knows the problem but not how to fix the problem.
Says he is very busy.
Did not go for his blood tests.
Advised to get bloods done.
Graded exercise to shoulder after cold pack.
Tendonitis.
No injury to shoulder.
Explained.
Take anti-inflammatory.
Not to use Tramadol as much (as) possible and address real issue.
The plaintiff was prescribed Tramadol (200 milligrams, one twice a day if required).
The plaintiff said he attended the doctor because, whilst he did not have a new injury to his right shoulder, the shoulder pain was getting worse.
On 2 February 2015, the plaintiff attended Dr Church and provided a history of back pain after being injured at work when a ladder blew over in the wind and hit him in the back. The plaintiff did not feel too bad at the time, but his back was now sore. The plaintiff did not have any time off work. On examination, there was no bruising but there was some swelling between the right scapula and the spine with some tenderness. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day if required).
On 12 May 2015, the plaintiff attended Dr Church and said he took Tramadol as needed, maybe a couple of days in a row, and said he found that he got shaky, if he stopped taking it after taking it consistently. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day if required).
It was put to the plaintiff that he was taking Tramadol for hip pain as well as right shoulder pain. The plaintiff agreed. The plaintiff said he would take Tramadol for short periods and then stop because it was addictive. The plaintiff said he would try and put up with the pain if he stopped the medication.
On 11 December 2015, the plaintiff attended Dr Aaron Koh for review. The following entry was made:
R shoulder pain due to injury since 2007.
Intermittent pain-managed conservatively.
Occasional Tramadol as needed.
Helps with pain. Normal ADLs does not affect work.
No intentional weight loss.
On exam, R shoulder-ROM-limited IR-lower back L2 region. Remaining ROM-NAD.
Advise to cont to active.
Tramadol if needed.
The plaintiff said he continued to keep doing what he needed to do for work despite his right shoulder pain.
On 3 June 2016, the plaintiff attended Dr Kosaraju with pain in his shoulder which was worse. The plaintiff told Dr Kosaraju he was ‘building the house’. Dr Kosaraju explained side effects and other modalities of pain treatment. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day if required).
The plaintiff rejected the suggestion that his shoulder pain was worse because he was building his house. The plaintiff said he was supervising the building of his house and had engaged contractors to do the physical work.
On 4 July 2016, the plaintiff attended Dr Church and gave a history of having dropped timber on his legs the day before. There was bruising on both legs and the plaintiff had a marked limp. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day if required).
The plaintiff was shown a photograph on his Facebook site dated 21 April 2016.[23] The plaintiff agreed it was a photograph of the house he was building in Warburton. The plaintiff said the house was on 12 acres of land and he was the owner/builder. The site of the house had been cleared by a bulldozer. The plaintiff said he had cut some firewood from the felled trees and other people had also cut firewood. The photograph depicted two walls of the house. The plaintiff said a contractor had constructed the walls. The plaintiff said he had not been involved in any manual work with the walls. The plaintiff said he was not a professional builder and had left the construction of the house to the contractors. He had done some work such as screwing in a few things but had otherwise watched while the contractors do their work.
[23]JCB, 253.
The plaintiff was shown another photograph of the house posted on his Facebook site dated 20 June 2016.[24] The plaintiff said work on the house since the last photograph had been done by the contractors.
[24]JCB, 252.
The plaintiff was shown a photograph of the house dated 5 May 2017.[25] The plaintiff agreed that the building of the house had progressed over the past 12 months and that roofing trusses were now in place. The plaintiff said the house was three levels including the basement and was 288 square metres in size. The plaintiff said the roof trusses had not been installed by him. Timber for the flooring had been moved by a crane and he had not assisted with the installation of the floor. The plaintiff said he had done some minor work with the construction but had otherwise engaged contractors. He had sometimes assisted the contractors with their work.
[25]JCB, 251.
The plaintiff was shown a photograph of the house dated 21 September 2018.[26] The plaintiff again agreed that further progress on the house construction had been made. The house now had a roof and the windows had been fitted. The plaintiff said the house reached lock up stage by early 2020. After he left work in September 2019, the plaintiff said he did some electrical work in the house with a friend. This involved wiring and connecting circuit breakers. The plaintiff said he needed help because he could not work above shoulder level with his shoulder problems.
[26]JCB, 250.
The plaintiff said he did not install the solar system panels to the roof of the house but did connect the wiring to the batteries downstairs. The plaintiff said he did not do any formwork in the house but had helped install the stairs with two mates. The plaintiff said he did not do any plastering and engaged a glazier to install the windows.
The plaintiff said a bridge over a creek on his property collapsed in or about 2008/2009 and he did some drilling and bolting in rebuilding it. The plaintiff said he had help from two mates in replacing railway sleepers. The plaintiff said he did perform some manual work when working on the bridge, but it was a long time ago.
The plaintiff was asked about attending the Launching Place Medical Centre for treatment instead of the Warburton Medical Centre. The plaintiff attended Dr Evette Markos on 22 December 2016. Dr Markos recorded that the plaintiff’s history was not significant and that he had shoulder pain after a fall 10 years ago.
On 20 January 2017, the plaintiff attended Dr Markos with a flare up of shoulder pain and was prescribed Tramadol (200 milligrams, 1 twice a day). The plaintiff agreed he had not mentioned his work to Dr Markos.
The plaintiff agreed he had a steroid injection in his shoulder in March 2017. On 5 March 2017, Dr Markos discussed a care plan for ongoing shoulder pain and referred the plaintiff for Yarra Ranges Physiotherapy. On 17 March 2017, the plaintiff attended Dr Markos for a follow up appointment. Dr Markos recorded that the plaintiff felt better, needed oral pain relief and was to start physiotherapy. The plaintiff was prescribed Tramadol (100 milligrams, 1 tablet to be taken as needed).
It was put to the plaintiff that there was no further mention of right shoulder problems from that date in the Launching Place Medical Clinic notes until after ceasing work with the defendant. The plaintiff said he had mentioned having shoulder pain after that date. The plaintiff said he also attended the Emma Court Family Clinic which was related to the Launching Place Medical Clinic. The same doctors worked three days at the Launching Place Medical Clinic and two days at the Emma Court Family Clinic.
The plaintiff attended Dr Markos at the Emma Court Family Clinic:
a. on 11 February 2017 with ongoing shoulder pain and requested pain relief. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day);
b. on 1 April 2017 with a recurrence of shoulder pain and requested pain relief. The plaintiff was prescribed Tramadol (200 milligrams, 1 twice a day) and Panadeine Forte (30 milligrams, 2 three times a day);
c. on 16 May 2017 for follow up and was described as doing well with the pain nearly gone.
The plaintiff agreed he did not mention problems with his right shoulder in the email he sent to Mr Yusuf on 28 May 2019. The plaintiff said he had spoken to Mr Yusuf about his shoulder problems and told him that he wanted to resign as a result. The plaintiff said Mr Yusuf told him to send him an email. The plaintiff said he did not see the need to tell Mr Yusuf in the email that he was resigning because of his shoulder problems as Mr Yusuf already knew about the issue. The plaintiff said everyone at work knew he had a problem with this right shoulder and that he was taking medication to do his work. The plaintiff said he took the medication to keep up with the work.
The plaintiff agreed he had a good relationship with Mr Yusuf. The plaintiff said Mr Yusuf had no issues with the quality of his work for the defendant. The plaintiff agreed he never asked for his work duties to be modified. The plaintiff said he loved the work he was doing and would still be at work now but for his right shoulder problems.
The plaintiff agreed he had reached the age when he could access his superannuation and that he used the money to pay off his mortgage and finish his house.
The plaintiff agreed he commenced seeing Ms Fisher on 31 October 2019. The plaintiff was referred to the notes of Ms Fisher.[27] The plaintiff was asked whether the primary reason for wanting massage treatment from Ms Fisher was ‘sore body’ as recorded by Ms Fisher on 31 October 2019. The plaintiff said Ms Fisher had written that entry herself. In his own handwriting, he said he listed his chief concerns as the following:
a. Right shoulder pain from injury
b. Right hip from different length legs (right leg 10 cm);
c. General muscles tight.
[27]JCB, 214-219.
The plaintiff said he told Ms Fisher about everything that was not right with him. The plaintiff agreed he saw Ms Fisher for other problems apart from his right shoulder and said he wanted his body in shape. The plaintiff said he had time to see Ms Fisher because he was no longer working and took the opportunity to see her for massages after he retired. The plaintiff initially stopped seeing her after March 2020 because of Covid-19.
The plaintiff agreed he did not complain about his right shoulder to Dr Markos after retiring, until 6 August 2020. On 6 August 2020, he attended Dr Markos at the Launching Place Medical Clinic and complained of ‘ongoing right shoulder pain’. The plaintiff told Dr Markos that physiotherapy was helping but that he was still in pain. Dr Markos arranged for the plaintiff to have an MRI of the right shoulder. The plaintiff said Ms Fisher had asked him to see his general practitioner because of continuing shoulder pain. She had suggested that he have an MRI.
The plaintiff was asked about the second claim for compensation dated 30 September 2020. The plaintiff said he had completed the second claim himself on his laptop. The plaintiff said he was unaware that he could make a new claim for compensation when he was not working. The plaintiff said Ms Fisher told him his shoulder problems were due to his work with the defendant. The plaintiff said he was sent to Dr Low after lodging the second claim. The plaintiff said he told Dr Low the truth. The plaintiff said he was unable to fulfill his duties at the time he retired. The plaintiff said he was only able to complete his full duties because he took medication and was unable to do his full duties without medication.
The plaintiff was referred to the report of Mr Miller dated 2 June 2022 and the following paragraph:
While at work on 25 October 2007 he tripped over some wood at a Fire Station, causing him to fall onto his right face and shoulder, landing on a steel step ladder. He developed the sudden onset of pain in the right shoulder. He finished work immediately, informed his manager, and attended his general practitioner that day.
He took approximately one week off work following the incident, after which he returned to normal duties, albeit with ongoing symptoms. He continued to struggle at work and his right shoulder symptoms deteriorated, leading him to ultimately cease working in September 2019. He subsequently underwent surgery to the right shoulder in June 2021.
It was put to the plaintiff that he had not struggled at work following the incident on 25 October 2007 and the history he had provided to Mr Miller was not true. The plaintiff denied the allegation.
Re-examination
The plaintiff was asked to explain what work was involved with the installation of equipment. The plaintiff said he would inspect the site and plan the work to be done. Once his plans were approved, he would install the equipment and see the work through to the end. This work also involved decommissioning old equipment and testing the equipment that had been installed. The work involved travelling across Victoria and sometimes in Tasmania and South Australia. The plaintiff said his right shoulder would be painful after driving a full day and he normally averaged 600 kilometres a day.
The plaintiff said he would change the antennas on fire trucks when necessary. This usually averaged about 10 times a week, but other employees would also change the antennas.
The plaintiff said when he stopped taking Tramadol, he would sometimes get the shakes. The plaintiff said he experienced these symptoms several times and that is why he did not take the medication all the time. The shakes would go away when he took the medication.
The plaintiff was taken to a photograph of a building site.[28] The plaintiff said it was a photograph of the building site around his house and showed the vehicles of the various tradesmen working on his house at the time. The plaintiff was shown another photograph.[29] The plaintiff said this depicted the house before the walls had been constructed and showed the formwork and three tradesmen working on the site. A photograph depicted tradesmen working on the formwork as they constructed the wall.[30] A photograph depicted a scissor lift and a bobcat.[31] The bobcat would load dirt onto the scissor lift which the tradesmen would then pack into the formwork as they built the walls. The plaintiff said these photographs were taken over a period of three months with a time lapse camera that he had installed at the site. The photographs were taken before he retired.
[28]JCB, 259.
[29]JCB, 260.
[30]JCB, 261.
[31]JCB, 262.
The plaintiff was referred to various invoices that he had provided pursuant to a Notice to Produce.[32] The plaintiff said the invoices were from tradesman who had supplied materials and/or who had been involved in the construction of his house over the years. The plaintiff referred to a statutory declaration he had also obtained from John Dufour, a tradesman he had engaged to install some of the windows in the house. The statutory declaration was dated 2 February 2023 and read as follows:
I am the owner of Marina Leadlights and Johno’s Mobile Welding Repairs. Re - Serge Ben Kramkimel of 35 Mississippi Crk Rd, Big Pat’s Creek 3799.
Repaired and fitted all leadlight windows with backing toughened glass, one observatory and constructed the frame to suit.
If you wish to contact me regarding any of these matters, please do not hesitate to contact me on 0439 615 676.
[32]JCB, 263-293.
The plaintiff was referred to an entry in the Emma Court Family Clinic notes from Dr Markos on 16 May 2017. The entry read:
History: follow up.
Doing well.
Pain nearly gone.
It was put to the plaintiff that counsel for the defendant had cross-examined him on this entry and had suggested to the plaintiff that the pain was referrable to his right shoulder.
The plaintiff was referred to an entry in the Launching Place Medical Clinic notes from Dr Markos on 15 May 2017 which read:
History:
Gastro-intestinal:
Abdominal pain. No nausea. No heartburn. No reflux.
The plaintiff said the two attendances on Dr Markos concerned abdominal pain and not shoulder pain.
The plaintiff was referred to the second claim for compensation completed on 30 September 2020. The plaintiff was asked why he had stated the following in that claim form:
I initially had a fall on 25th October 2007 and subsequently my condition has deteriorated with lifting, stretching, pulling and strain on my right shoulder as a result of my work duties over time.
The plaintiff said he had always referred to the initial incident as the cause of his right shoulder problems and did not realise that the problems had been aggravated by his work over time until Ms Fisher told him. Ms Fisher told him it was a serious problem and that he should have an MRI.
Mr Robert Opitz
Evidence-in-chief
Mr Opitz gave evidence on behalf of the plaintiff.
Mr Opitz previously worked for the defendant as a Network Administrator in Burwood and had collaborated with the plaintiff on IT projects. Mr Opitz had known the plaintiff for approximately 11 years.
Mr Opitz said the plaintiff looked after radio communications for the defendant. This work involved travelling throughout Victoria. Mr Opitz said the plaintiff would often travel to remote areas in the hills where the terrain was quite variable. The plaintiff was responsible for the radio communication equipment and power back-up in these areas. Mr Opitz said he worked with the plaintiff directly and was aware he would have to climb fire towers to maintain the defendant’s radio equipment. This work involved carrying batteries, communication racks, IT equipment and power supplies.
Mr Opitz said the plaintiff normally managed the equipment on his own when decommissioning, upgrading or maintaining the radio communications. The equipment was heavy. Communication racks were 2 metres high, 1 metre wide and 900 metres deep and weighed between 20 kilograms to 40 kilograms. Batteries weighed up to 20 kilograms and some were even larger.
Mr Opitz said the plaintiff mentioned he had issues with his right shoulder, and he knew the plaintiff was taking painkillers and injections to relieve the pain over the years. Mr Opitz said the plaintiff told him he was resigning from work because of his shoulder issues.
Mr Opitz said he also knew the plaintiff as a friend and lived ten kilometres away from him. After the plaintiff stopped work, he still had problems with his right shoulder, and this limited him as to what he could do around his house. Mr Opitz said he had helped the plaintiff with things that he could not do around the house.
Cross-examination
Mr Opitz agreed the plaintiff mainly worked at the defendant’s Bayswater workshop. Mr Opitz said he did visit the workshop but did not go to job sites with the plaintiff.
Mr Opitz said the plaintiff had lived with him for a short time in approximately 2018 when the plaintiff was in between houses.
Mr Opitz said he had helped the plaintiff at his house over the past eight to nine years. The plaintiff’s right shoulder problems prevented him from doing any heavy lifting. The plaintiff would do small things around the house that did not involve heavy lifting such as electrical work.
The plaintiff did not install the solar panels on the roof of his house.
Re-examination
Mr Opitz said he did observe the plaintiff working when he visited the defendant’s workshop in Bayswater.
Mr Opitz said he helped the plaintiff with carpentry tasks and moving things around his house as the plaintiff could not raise his right shoulder.
Mr Mehmet Yusuf
Evidence-in-chief
Mr Yusuf gave evidence on behalf of the defendant.
Mr Yusuf commenced employment with the defendant as a trainee in 2001. He worked as a CTSO from 2004 until 2017 and then became the Manager of Communication Operations. The defendant still employs him.
Mr Yusuf has known the plaintiff since 2001. In their roles as CTSO, Mr Yusuf said he and the plaintiff worked in installation initially and then in maintenance.
Mr Yusuf said the plaintiff’s duties involved the installation of communications equipment at fire stations and hill top fire sites. After 2015 the plaintiff was also the Co-ordinator of the Instrument Management System.
Mr Yusuf said the plaintiff would have spent 30 per cent of his time on the road performing maintenance and installation work and 70 per cent of his time remotely monitoring equipment and changing configurations.
The plaintiff was mostly performing maintenance work towards the end of his employment with the defendant. Prior to that he would have been working 50/50 on installation and maintenance. The plaintiff would have worked installing the wiring at fire stations up to 2001 when contractors were employed to do this role.
Mr Yusuf said the plaintiff would have replaced cabling in roofs occasionally thereafter, but contractors would have done the bulk of the cabling installation.
Mr Yusuf said antennas on fire trucks would have been replaced about 40 times a year and that this work would have been shared between the 13 technicians overall.
There were 150 fire towers in Victoria which were maintained each year. Not all the fire towers had to be climbed. Most of the equipment was on the ground. There were 20 to 30 towers that technicians would have to climb.
Mr Yusuf said most technicians would perform maintenance work on their own if working in the field. Installation work was normally done as a team.
From 2015 the plaintiff would also have worked in the office doing remote configurations on telemetry equipment at hill top sites. This work was done using a personal computer to remotely connect to equipment. Mr Yusuf said, if the site needed to be visited, either the plaintiff or another technician would attend.
Mr Yusuf could not remember if he spoke to the plaintiff about any right shoulder problems before the plaintiff resigned from work. He said he knew the plaintiff had trouble with his shoulder, but the plaintiff did the work and did not request any change to his work duties.
Mr Yusuf said he thought the plaintiff resigned because he wanted to access his superannuation. At the time the plaintiff resigned, he was still doing his normal work and Mr Yusuf said he was happy with the plaintiff’s work performance. As far as he was concerned, the plaintiff would have been able to continue with his work if he had not resigned.
Mr Yusuf said if the plaintiff had continued working and told the defendant that he was having problems with his right shoulder, the defendant would have looked at changing the plaintiff’s duties. Mr Yusuf could not say how long the provision of alternative duties would have lasted.
Cross-examination
In some circumstances, Mr Yusuf conceded that the plaintiff’s duties were physical in nature. Mr Yusuf said changing communications equipment at fire stations or at hill top towers was physical work.
Mr Yusuf said handling of batteries was involved during installation work but that they were only changed every three years once installed at a site. Battery changes were mainly done at ground level in the huts. Mr Yusuf agreed the plaintiff would carry the batteries into the hut and that the heavier batteries would weigh 30 kilograms. Batteries installed at the top of the tower would weigh 10 kilograms. Mr Yusuf said, sometimes the plaintiff would have been able to use a pulley system to take the battery to the top of the tower, but the plaintiff may have carried it manually to the top of the tower.
Mr Yusuf agreed that communication racks were large steel objects and were normally dragged into the huts. Mr Yusuf disputed the plaintiff would have had to place cardboard on the ground at some sites to drag the racks along the ground. Mr Yusuf said trolleys were able to be used at most locations despite the terrain. He did agree that some work sites did have rough terrain.
Mr Yusuf said maintenance work was performed by the plaintiff on his own and that the plaintiff would have had assistance when undertaking installation work.
Mr Yusuf said, whilst the plaintiff was appointed the Co-ordinator of the Instrument Management System in 2015, he would still have done maintenance work at some sites.
Mr Yusuf did not agree that the plaintiff would have spent 70 per cent of his time in the field and 30 per cent of his time in the office. Mr Yusuf said that towards the end of the plaintiff’s career, most of his work was maintenance work because most of the installation work had already been done.
Mr Yusuf agreed that the plaintiff had done work installing cables in fire stations and replacing antennas on fire trucks and that this work did involve performing stretching and reaching tasks using his arms.
Mr Yusuf could not remember the plaintiff telling him about his right shoulder problems regularly and did not know that the plaintiff took Tramadol to relieve his shoulder pain. Mr Yusuf agreed it would have been a problem if the plaintiff was taking Tramadol to stay at work because of his shoulder pain.
Re-examination
Mr Yusuf did not believe the plaintiff’s right shoulder was a problem for the plaintiff at work. Even if the plaintiff did have right shoulder pain, Mr Yusuf said it did not affect the plaintiff’s work.
Mr Yusuf said he was aware that the plaintiff had injured his shoulder at work in October 2007 but thought the plaintiff was all right to continue working when he returned to work after having time off.
Mr Yusuf said, if the plaintiff did have shoulder problems, it would have been an issue performing manual tasks such as lifting batteries. However, in his view, the plaintiff’s work duties did not involve physical work every day.
In answer to a question from the court as to the percentage of time the plaintiff would have spent in the field prior to 2015, Mr Yusuf said the following: ‘Given the amount of installation work in the early years, the plaintiff would have spent 100 per cent of his time in the field prior to 2010 and thereafter 50 per cent in the field prior to 2015’.
Medical evidence
Following the incident on 25 October 2007, the plaintiff underwent an x-ray of the right shoulder on the same day, which concluded, no bony, joint, or soft tissue abnormality could be seen.[33]
[33]JCB, 65.
An ultrasound of the right shoulder performed on 7 December 2007 stated:
Clinical Notes: Right shoulder injury 1 month ago. Tender anteriorly. Pain with abduction.
? Rotator cuff tear.
Findings: No fluid within the joint could be seen.
No loss of contour to suggest a significant full thickness tear could be seen on the rotator cuff.
There is some heterogeneous appearance to the supraspinatus tendon in keeping with tendinopathy.
No fluid or thickening in the subdeltoid bursa could be seen.
No impingement could be identified.
Comment: The changes (are) of those of supraspinatus tendinopathy.[34]
[34]JCB, 66-67.
On 14 January 2008, Dr Keith Lu (Warburton Medical Group) referred the plaintiff to Mr Rod Dalziel for investigation of his right shoulder. Dr Lu stated examination of the plaintiff suggested a supraspinatus sprain which the ultrasound report also indicated was the probable source of pathology. The plaintiff was still having significant pain despite several months of watching and there was still minimal improvement.[35]
[35]JCB, 75.
Mr Dalziel, an orthopaedic surgeon, provided a report dated 4 September 2008,[36] stating that the plaintiff had tripped over a piece of wood at a Fire Station and had fallen onto the right side of his face and shoulder. It was a substantial impact injury and the plaintiff had ongoing pain, stiffness, and physical limitations. Mr Dalziel said the plaintiff had continued to improve but retained significant pain in relation to the right shoulder and the inner aspect of the clavicle. An MRI was essentially within normal limits. The plaintiff had been seen on several occasions since that time and had a number of strategically placed injections. The plaintiff had also had a distension arthrogram of the shoulder in an attempt to localise the source of the shoulder pain as being within the shoulder.
[36]JCB, 78.
According to Mr Dalziel, the plaintiff had a direct impact injury to the right shoulder which had retained its pain but was not associated with any loss of movement or loss of strength at that stage. The plaintiff had recovered well in his functional modalities. Pain constituted a major problem for the plaintiff but there was no surgical procedure that would improve his subjective complaints. The plaintiff’s situation was likely to have sustained a blunt injury associated with prolonged soreness and pain.
The plaintiff underwent physiotherapy in July 2008. In a ‘Physiotherapy Management Plan’ dated 22 July 2008, Mr Mark Cuitter, stated the plaintiff was working 40 hours a week performing his pre-injury duties. Mr Cuitter stated the plaintiff was being treated for pain in his right shoulder and cervical spine and 12 treatments over a period of 12 weeks was proposed.[37]
[37]JCB, 76-77.
Mr Owen Deacon, an orthopaedic surgeon, examined the plaintiff on behalf of Allianz on 30 July 2008 and provided medico-legal reports dated 3 August 2008,[38] and 7 November 2008.[39] The plaintiff described tripping at work on 25 October 2007 and striking a steel step ladder with the right side of his face, right collar bone area and trunk very firmly. He was referred to Mr Dalziel and had some physiotherapy. As at the date of the examination, nine months had passed with the plaintiff not being completely happy. The injury to his face had settled down but he was still having problems beneath the mid-section of the clavicle and along the spinus processes of the cervical spine towards the occipital triangle. The plaintiff was off work for a week following the injury, and had functioned normally but still had pain in the neck and shoulder region at night which was fairly persistent and constant. An MRI was apparently normal. He had three treatments of physiotherapy but stopped as he did not feel it was helping.
[38]JCB, 110-117.
[39]JCB, 118-119.
The plaintiff told Mr Deacon he was able to do everything but was in constant pain in the back and right side of the neck, and in the right trapezius area and mid sub-clavicular area.
Mr Deacon thought the accident could have produced some soft tissue damage to the plaintiff’s neck and shoulder or even aggravated pre-existing degenerative changes in his neck. The work component had not resolved, and the plaintiff’s condition was still materially contributing to his incapacity for work and the need for treatment. Apart from having one week off, the plaintiff was doing his pre-injury work but was in constant pain. The plaintiff was not improving and needed further treatment.
In a supplementary report dated 7 November 2008, Mr Deacon commented on x-rays of the plaintiff’s cervical spine dated 4 August 2008 that he had arranged. There was no evidence of bone injury or significant narrowing and there was some mild facet joint arthropathy at C5/6 on the right side. The report did not alter his opinion.
On 25 November 2008, Mr Tim Bickerton (Yarra Ranges Physiotherapy) reported that the plaintiff had been rehabilitated following his right shoulder/neck pain episode and had been discharged from physiotherapy. The plaintiff was given a home exercise program.[40]
[40]JCB, 79.
A ‘Chronic Disease Management-GP Management Plan & Team Care Arrangements’ plan completed on 5 March 2017 by Dr Markos indicated the plaintiff had presented with shoulder pain on 22 December 2016. The plaintiff had been prescribed:
a. Tramadol 100 milligrams, modified release (1 tablet, afternoon);
b. Tramadol 200 milligrams, modified release (1 tablet twice a day).
The management plan also consisted of treating the plaintiff’s right shoulder pain with massage and physiotherapy with a proposed review to take place on 15 April 2017.[41]
[41]JCB, 80-84.
Ms Fisher, a myotherapist, provided a report dated 3 December 2022.[42] The plaintiff first saw her on 31 October 2019 and complained o pain and limited movement in his right shoulder and arm caused by a workplace injury approximately 12 years ago. He saw a GP at the time and was referred for an MRI. No reportable damage was found to the right shoulder, and he was treated with Cortisone for the pain and returned to work on normal duties. Just prior to seeing Ms Fisher, the plaintiff had retired early due to increased right shoulder pain caused by the mentioned accident. The plaintiff was extremely frustrated with his inability to carry out work on his property due to the pain and limited movement in his right shoulder.
[42]JCB, 101.
Ms Fisher saw the plaintiff weekly from 31 October 2019 and small improvements were made with respect to the range of movement and pain reduction. As the improvements were minimal, Ms Fisher suggested the plaintiff have another MRI. A subsequent MRI showed damage to the shoulder and surgery was undertaken in June 2021.
Ms Fisher believed that the plaintiff’s work after the incident on 25 October 2007 exacerbated the plaintiff’s right shoulder injury and created further damage to the joint and surrounding muscles.
On 14 August 2020, the plaintiff underwent an MRI of the right shoulder at the request of Dr Markos. The report stated the following:
Clinical Notes:
Ongoing pain, query tendon tear, query bursitis.
Findings:
Supraspinatus tendinopathy with a small intrasubstance tear measuring 2.5 x 1.5 mm in the posterior fibre.
Intrasubstance tear at superior subscapularis at the attachment measuring 6 x 8 x 2 mm in size. Background tendinopathy of the subscapularis.
Medially subluxed long head of biceps tendon with tendinopathy at the intrascapular and extracapsular junction, consistent with pulley mechanism injury, associated with oedema at the rotator cuff interval.
Thickened subacromial bursa.
Moderate joint effusion.
An 18 x 5 x 6 mm paralabral cyst coming off the superior labrum is consistent with a SLAP tear.
Preserved glenohumeral joint articular cartilage.
Mild degenerative AC joint.
Type II acromion.
Conclusion:
a. Biceps pulley mechanism injury with medially subluxed biceps and tendinopathy.
b. Subscapularis tendinopathy with an intrasubstance tear of the superior fibres at the attachment.
c. SLAP tear with a small paralabral cyst anteriorly.
d. Supraspinatus tendinopathy with a small intrasubstance tear in the posterior fibre.[43]
[43] JCB, 70-71.
Dr Sean Low, a consultant occupational physician, examined the plaintiff on behalf of CGU and provided a medico-legal report dated 18 December 2020.[44] By way of background, Dr Low reported:
Mr Kramkimel confirmed that around the time of the initial injury occurring in 2007, he had been working as a communications technical officer for the Country Fire Authority. He described his job duties as installing/maintaining communication devices located in fire trucks, land fixtures and heights. He described his role as manually demanding, requiring him to work in a range of different postural positions.
Mr Kramkimel confirmed that he retired in September 2019 due to ongoing shoulder symptoms. He noted that his employment with Country Fire Authority had been in excess of 30 years.
[44]JCB, 120-124.
The plaintiff told Dr Low that, following his fall on 25 October 2007, his shoulder pain did not resolve, and he continued to self-manage his symptoms. He continued to attend his nominated treating doctor and was prescribed analgesia. He did not pursue further treatment until after he retired. The plaintiff took Tramadol for pain relief and had been provided with a shoulder sling.
Dr Low stated that the plaintiff presented with a right shoulder rotator cuff injury with evidence of a Superior Labrum Anterior and Posterior (SLAP) tear. Based on the history provided by the plaintiff:
… it is reasonable that he may have sustained a rotator cuff injury through the reported subject fall. Mr Kramkimel reported ongoing symptoms subsequent to this and as such, I would consider that the injury is ongoing and that his right shoulder continues to represent his workplace injury,
Dr Low noted that at the time of his retirement, the plaintiff had been unable to fulfill his duties due to the reported work injury. Based on the plaintiff’s current reported functional capacity, he would have difficulty performing the inherent duties of his pre-injury role. Dr Low stated that further medical information would be useful to solidify his opinion on medical causality.
Mr Brendan Soo, an orthopaedic surgeon, saw the plaintiff on referral from Dr Markos in February 2021. In a report dated 10 February 2021,[45] Mr Soo said the plaintiff was a 62 year old, right arm dominant man who previously worked for the CFA before stopping work in September 2019 due to ongoing issues with his right shoulder. The plaintiff was in the process of building a house on a 12 acre hobby farm but was having increasing difficulty using his right shoulder and arm.
[45]JCB, 98-99.
The plaintiff provided a history of injuring his right shoulder in 2007 when he sustained a direct impact injury at the front of the shoulder against a steel bar. Imaging at that time did not identify any damage to the shoulder and the plaintiff did not seek treatment other than having a steroid injection, physiotherapy and seeing a myotherapist. The plaintiff put up with persistent pain that was worse with any movement overhead and behind his back. The plaintiff had had increasing nocturnal pain over the last six months which was disturbing his sleep. He was limited with his daily activities and using the arm overhead.
Clinical findings were consistent with MRI findings which demonstrated medial subluxation of the biceps tendon underneath what appeared to be full thickness tear of the upper subscapularis. Mr Soo did not feel that the plaintiff had a significant tear of the supraspinatus tendon clinically despite the comments of the MRI. The plaintiff also had a SLAP tear with an anterior paralabral cyst.
Mr Soo commented that the plaintiff has had chronic issues with his right shoulder stemming from the injury in 2007 which has been limiting function and causing discomfort for quite some time. Mr Soo requested permission from the Workcover agent to perform a right shoulder arthroscopic decompression, bursectomy, biceps tenodesis and rotator cuff repair (supraspinatus and subscapularis).
The plaintiff underwent the surgery on 10 June 2021.[46]
[46]JCB, 73.
Dr Markos has provided a number of medical reports on the Launching Place Medical Centre letterhead.[47] The most recent report from Dr Markos is dated 27 September 2022 and is on the Emma Court Family Clinic letterhead.[48] Dr Markos stated the plaintiff had a right shoulder injury causing severe disabling pain which impacted on his shoulder function. The general heavy nature of the plaintiff’s employment was significantly contributing to the plaintiff’s current condition. Prior treatment had included cortisone injection, pain killers and surgery. The heavy nature of the plaintiff’s work duties had definitely contributed to the injury to the plaintiff’s right shoulder.
[47]JCB, 89-94.
[48]JCB, 96-97.
Mr Ash Moaveni, an orthopaedic surgeon, examined the plaintiff on behalf of his solicitors and provided a medico-legal report dated 16 August 2021.[49] The plaintiff described his past work duties as installing and maintaining communication devices located in fire trucks, land fixtures and at heights. The plaintiff described the work as manually demanding and required him to work in a range of different postural positions. The duties involved climbing, stretching, pulling, lifting, and carrying heavy batteries.
[49]JCB, 102-109.
The plaintiff told Mr Moaveni that he ceased work on 5 September 2019 as a result of the aggravation of his right shoulder injury. The plaintiff said his work as a CTSO was quite heavy, manual, and repetitive and this had resulted in increasing pain in his shoulder. The increasing pain in his right shoulder was one of the predominant reasons that lead to his retirement.
The diagnosis was of a right shoulder rotator cuff tendon tear, including supraspinatus and subscapularis, as well as subluxation of the long head of biceps.
Mr Moaveni stated the general strenuous nature of the plaintiff’s employment until 5 September 2019 was the significant contributing factor to the plaintiff’s current condition. Following the plaintiff’s right shoulder injury in 2007, the plaintiff was assessed by Mr Dalziel and Mr Deacon at the time and was able to return to work after one week performing unrestricted duties. Mr Dalziel opined that the MRI scan was essentially normal, and that surgery was not required. The plaintiff also had physiotherapy treatment at the time from Mr Bickerton and he stated that the plaintiff had successfully rehabilitated after the right shoulder and neck injuries.
Mr Russell Miller, an orthopaedic surgeon, examined the plaintiff on behalf of the defendant and provided medico-legal reports dated 2 June 2022 and 7 June 2022.[50] Mr Miller stated that the plaintiff commenced work for the defendant in 1986 as a communications technical officer performing physically demanding duties involving climbing towers, lifting heavy batteries and frequent driving. The plaintiff provided a history of having developed pain in his right shoulder following a fall at work on 25 October 2007. Mr Miller reported:
He took approximately one week off work following the incident, after which he returned to normal duties, albeit with ongoing symptoms. He continued to struggle at work and his right shoulder symptoms deteriorated, leading him to ultimately cease working in September 2019. He subsequently underwent surgery to the right shoulder in June 2021.
[50]JCB, 130-141.
On 26 September 2021, the plaintiff sustained multiple injuries including fractures to his neck, left arm, and left and right ankles when doing some maintenance work on his property pulling down trees with a tractor. The plaintiff did not feel the accident affected his right shoulder.
Mr Miller reported there was complex pathology in the plaintiff’s right shoulder. Findings included instability of the long biceps tendon for which biceps tenodesis was performed. There was a 5 mm full thickness tear of subscapularis and a tear to the anterior aspect of the supraspinatus tendon. Subscapularis was repaired and a subacromial decompression was performed. There were ongoing symptoms and persisting problems with rotator cuff dysfunction, capsulitis, and residual pathology in the acromioclavicular joint. The plaintiff’s prognosis was only fair.
With respect to the relationship to work and the right shoulder injury, Mr Miller opined:
The relationship between the work/injury and the right shoulder is a complex and multifactorial issue which includes the following factors: (i) constitutional predisposition to develop this type of problem, (ii) likely pre-existing disease although there were no reported pre-existing symptoms prior to 2007, (iii) the event in 2007, at which time the client dates the onset of symptoms in the right shoulder, (iv) significant physical work over a protracted period of time, (v) multiple further minor events including those outlined in section 6a, b, c, d, e, of your letter, and (vi) the client reports no significant change in symptoms in relation to the second incident. The current clinical status is regarded as being substantially work related.
The plaintiff told Mr Miller that, following his return to work after the fall, he continued to work with difficulty. The plaintiff said the symptoms were ‘manageable’ and that he would take painkillers such as Tramadol when symptoms were especially bad. The plaintiff said ongoing symptoms were ultimately the reason for ceasing work.
In his supplementary report dated 7 June 2022, Mr Miller repeated that the plaintiff’s case was particularly complex. Mr Miller noted that the plaintiff dated the onset of right shoulder symptoms from the injury at work in October 2007 and that he continued to undertake significant physical work from that period of time. In respect to the issue of causation, Mr Miller said:
… it is my view that the work injury in October 2007 is a significant material and ongoing contributing factor to the evolution of the right shoulder disease. It is my view that the continued work from 2007 until the client ceased working in 2021 [sic] remains a significant material contributing factor to the current clinical status.
Mr Miller concluded by saying he did not otherwise alter the findings or conclusions previously expressed.
Submissions
Submission on behalf of the Defendant
Mr Macaskill, counsel for the defendant, submitted the key issues for the court to determine were:
a. causation;
b. capacity during the period in dispute; and
c. the section 185 defence.
Mr Macaskill submitted the clinical records did not support the plaintiff’s allegation that his right shoulder injury had deteriorated over the course of his employment following the initial incident on 25 October 2007.
Mr Dalziel reported that, whilst the plaintiff had had a direct impact injury to the area of his right shoulder and had resultant pain, on examination there was no objective loss of movement or loss of strength and the plaintiff had recovered well in his functional modalities.
Mr Macaskill queried whether an MRI had been undertaken in 2008 as reported by Mr Dalziel. The parties had been unable to find any reference to an MRI having been performed in 2008 apart from this reference. It was open to the court to infer that Mr Dalziel’s comment was an error and/or to place little weight to his comments.
An ultrasound of the right shoulder undertaken on 7 December 2007 commented that changes were those of supraspinatus tendinopathy.
Whist the plaintiff did seek treatment from Ms Fisher for the injury to his right shoulder, the defendant submitted that this treatment was part of overall treatment for the plaintiff for a sore body, including treatment for his hips and knees.
According to Dr Low, the plaintiff self-managed his symptoms and did not seek further treatment until after he retired. Mr Macaskill submitted that this indicated the plaintiff’s right shoulder injury was attributable to the fall in October 2007 and not thereafter.
Dr Low’s opinion was based on the history provided by the plaintiff. The defendant disputed this history and submitted the plaintiff’s injury was not ongoing after the fall in 2007 as the plaintiff had led Dr Low to believe.
In this respect, the defendant also referred to Mr Soo’s report dated 10 February 2021 and the comment that the plaintiff was ‘now in the process of building a house on a 12 acre hobby farm in Warburton but is having increasing difficulty using his right shoulder and arm’. The defendant submitted the evidence did not support Mr Soo’s acceptance that the plaintiff ‘has had chronic issues with his right shoulder, stemming from an injury in 2007.’
The defendant submitted little weight should be given to the report of Mr Moaveni who was of the opinion that the plaintiff had recovered from his shoulder injury in 2007 which differed from the views of Dr Low and Mr Soo.
Mr Miller’s views were based on the plaintiff’s history and, again, the defendant submitted the evidence did not support the plaintiff’s history.
With respect to ‘significant contributing factor,’ and Clause 25 of Schedule 1 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act), the defendant submitted that, as to the nature of the work performed and the particular tasks of the employment, whilst it was not in dispute that the plaintiff’s work involved manual handling, there was dispute as to the frequency of such tasks. The court would have to assess the evidence of the plaintiff and Mr Yusuf as to nature of the plaintiff’s work duties and tasks performed.
As to the probable development of the injury occurring, if employment after October 2007 had not taken place, the defendant submitted there was every chance the defendant’s right shoulder injury would have deteriorated with his involvement in building his house.
The defendant was unaware of any hereditary risks of the plaintiff but submitted the plaintiff’s role in building his house was relevant to consider in concerning the plaintiff’s lifestyle and activities outside the workplace.
As to the plaintiff’s work capacity following his resignation, and the period leading up to his surgery on 10 June 2021, the defendant submitted the plaintiff was performing unrestricted duties until he retired. Mr Yusuf said the plaintiff did not report any problem to him about being unable to perform his work. Mr Dalziel and Mr Deacon were of the view that the plaintiff was able to perform his pre-injury duties following his return to work after one week off in October 2007.
Following his resignation, the plaintiff did not seek medical treatment from his Dr Markos until 6 August 2020 and did not obtain a Workcover certificate of capacity until 16 October 2020.
The plaintiff’s allegation that he was unable to continue with his pre-injury duties was not supported by the medical attendances.
The defendant submitted that it was highly unlikely that the plaintiff became incapacitated for work after he resigned until the surgery took place in June 2021. If the court believed the plaintiff was incapacitated for work prior to the surgery, 6 August 2020 (when the plaintiff first saw Dr Markos after he retired), or 16 October 2020 (when Dr Markos initially provided a Workcover certificate of capacity), were alternative dates for the commencement of the plaintiff’s incapacity.
Alternatively, the defendant submitted section 185(1)(e)(i) of the WIRC Act operated to prevent the plaintiff having any entitlement to weekly payments as of 5 September 2019 as the plaintiff had resigned for reasons unrelated to his incapacity.
The plaintiff did not mention an injury to his right shoulder as being the reason for his resignation in email to Mr Yusuf dated 28 May 2019. The defendant submitted the real reason was the plaintiff becoming eligible to access his superannuation and pay off his mortgage.
Whist the defendant agreed the court had a discretion as to the operation of section 185 of the WIRC Act, the court should take into account section 10 of the WIRC Act which set out the objectives of Act, and not exercise that discretion. In particular, the court should have regard to section 10(c),(d) and (e) of the WIRC Act.
Submission on behalf of the Plaintiff
Mr Dawson. counsel for the plaintiff, submitted the court should find that the plaintiff was an honest witness who gave consistent evidence about his work duties and made appropriate concessions about his activities outside work. The evidence of Mr Opitz and Mr Yusuf supported the plaintiff’s evidence.
The plaintiff gave evidence that his work was physical and demanding in nature and involved climbing, stretching, lifting, and carrying heavy weights. The plaintiff necessarily had to drive for long hours over undulating ground to access hill top fire stations. The plaintiff had to carry communications equipment such as batteries which weighed up to 32 kilograms. The plaintiff would have to drag communication racks into the tower huts and carry batteries up and down the fire towers whilst holding onto the ladder to climb. The plaintiff’s work involved awkward stretching and reaching and sitting at a computer for extended periods.
The plaintiff submitted the court should accept the plaintiff’s evidence that his work after the incident on 25 October 2007 caused pain and problems with his right shoulder which progressively got worse over time. By the time the plaintiff retired, the court should accept that the plaintiff was having increasing difficulties with his right shoulder and was using Tramadol increasingly to continue at work. The court should accept the plaintiff remained at work under duress until retiring.
It was the plaintiff’s stoicism in continuing to work, despite the ongoing problems with his right shoulder, which has led to the defendant denying his entitlement to compensation for the period in dispute. Mr Dawson referred the court to the decision of Dwyer v Calco Timbers Pty Ltd (No 2) and the comments of Nettle JA.[51]
[51][2008] VSCA 260, [30].
The records concerning the various prescription medications taken by the plaintiff from July 2009 to August 2021 indicate that the plaintiff was taking Tramadol on a regular basis.[52] Initially the prescriptions did not involve a repeat. However, from October 2017 the plaintiff was prescribed 60 Tramadol tablets at a time with five repeats on the following dates:
a. 26 October 2017;
b. 26 April 2018;
c. 28 February 2019; and
d. 27 November 2019.
[52]JCB, 231-243.
The clinical records supported the plaintiff’s evidence that he took Tramadol as needed and had side effects such as the shakes if he stopped taking the medication consistently.[53]
[53]Entry on 12 May 2015 at JCB, 182.
The plaintiff’s submitted medical evidence from Dr Markos, Mr Moaveni, Dr Low and Mr Miller, established the following;
a. there was a substantial pathology chain between 2008 and 2020;
b. the plaintiff had right shoulder problems well before he retired;
c. the plaintiff’s employment was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation, or deterioration of the injury to the plaintiff’s right shoulder;
d. the plaintiff was incapacitated for work from the date of his retirement to the date of his surgery and this incapacity had been materially contributed to by his employment.
Mr Dalziel referred to an MRI scan undertaken after the incident on 25 October 2007 as being ‘essentially within normal limits’.[54]
[54]JCB, 78.
Dr Markos said, ‘[t]he general heavy nature of (the) patient’s employment was significantly contributing to the patient’s current condition. Treatment included cortisone injection, pain killers and surgery’.[55]
[55]JCB, 96.
Ms Fisher commented that she first saw the plaintiff on 31 October 2019 and that, ‘[h]e complained of pain and limited movement in his right shoulder and arm caused by a work place injury that took place approximately 12 years ago … he had recently retired early due to the increased right shoulder pain caused by the mentioned accident’.[56]
[56]JCB, 101.
Mr Dawson submitted it was important for the court to note that the plaintiff’s mention to Ms Fisher of having to retire early because of increased right shoulder pain was only a month after he had retired. It was also 12 months before the plaintiff’s second claim was rejected, and two years before the Amended Notice of Defence dated 29 November 2021 raised the section 185 defence. Mr Dawson said it was not open for the defendant to state that the plaintiff’s alleged reason for retiring was convenient given those circumstances. The plaintiff had given the reason well before he lodged his second claim and before seeing his lawyers about pursuing his claim for compensation.
The plaintiff’s initial treatment was from Ms Fisher. The plaintiff gave evidence that Ms Fisher had recommended he have an MRI. Ms Fisher stated that the plaintiff had been attending for treatment on a weekly basis since 31 October 2019 but that improvements had been minimal. Ms Fisher reported ‘… I suggested he return for another MRI, which he did. The subsequent MRI showed the damage to the shoulder required surgery. This was undertaken in June 2021. I believe that the work he was required to undertake after the accident, exacerbated his shoulder injury, creating further damage to the joint and surrounding muscles’.[57]
[57]JCB, 101.
With respect to the percentage of time the plaintiff performed work in the field or in the workshop, giving my views as to the physical nature of the plaintiff’s work overall, I do not see that this is a factor influencing my decision either way. The plaintiff and Mr Yusuf may have disagreed about the percentage of time he spent in the field, but I find the plaintiff’s work from October 2007 to 5 September 2019 was physically demanding on his right shoulder, whether he was working in the field or performing work in the workshop or related computer duties. In any event, I find that the plaintiff would have worked in the field for most of the time over that period.
With respect to the building of the plaintiff’s house over the period, I accept the plaintiff’s evidence that he engaged contractors to perform the major aspects of the work. I accept his evidence that he was essentially supervising the building of the house and that contractors were engaged to do physical work. I accept the plaintiff’s evidence that he was not involved in the installation of the roof trusses or flooring.
Mr Opitz corroborated the plaintiff’s evidence. That is not to say that the defendant did not perform work on the house. The plaintiff conceded he did minor work on the house and sometimes assisted the contractors. The plaintiff said he did some electrical work on the house with a friend because he needed assistance with work above shoulder level. I make the finding that any work performed by the plaintiff on the house was not physically demanding and that the plaintiff’s shoulder injury affected his ability to perform unrestricted duties.
I accept the plaintiff’s evidence that he took Tramadol to relieve the pain in his right shoulder and continue working after 25 October 2007. Whilst the clinical records indicate that the plaintiff also took Tramadol for issues with his hips, elbow and back at times, the plaintiff had ongoing issues with his right shoulder and required Tramadol on a regular basis to remain at work. It is significant that in the latter years prior to ceasing work, the plaintiff was obtaining five month prescriptions for Tramadol.
The plaintiff was cross-examined about the lack of mention about problems with his right shoulder to doctors over the relevant period. I formed the opinion that the plaintiff was a stoic individual who got on with his work and was not prone to complaining about problems with his shoulder. I find the plaintiff would take Tramadol and would simply put up with his pain and work as best he could. The plaintiff should not be penalised for his work ethic, and I do not accept the defendant’s criticism of the plaintiff in this regard.
Extracts from the various medical clinics attended by the plaintiff following 25 October 2007 are of relevance concerning ongoing right shoulder issues.
Clinical records of the Warburton Medical Group concerning the right shoulder reveal the following:
a. 29 October 2007 — attendance on Dr Lu: still sore in right shoulder and clavicle. Shoulder sprain? Degree of ligament tear;
b. 5 November 2007 — attendance on Dr Lu: Right shoulder improving. Slight pain when lifting heavier objects. Bruising resolved. No swelling. Slight tenderness in R SC joint - does not feel dislocated. No dislocation was located on previous x-ray. Possible partial tear rotator cuff. Offered U/S to pt. Would prefer to watch and wait. Will consider U/S if slow to recover.
c. 28 November 2007 — shoulder still sore especially with abduction and reaching backwards. Some relief with Panadeine Forte. Wishing to have U/S;
d. 14 January 2007 — R shoulder still same, painful at night. Worse with lifting arm and driving, especially when needing to turn steering wheel towards left. Unable to work this week due to exacerbation of pain. Probable supraspinatus sprain;
e. 21 January 2007 — right shoulder ultrasound;
f. 19 May 2008 — Dalziel: Shoulder MR shows degenerative changes only, to have arthrogram;
g. 12 June 2008 — Dalziel: Ongoing pain anterior to right shoulder? from joint - to have arthrogram;
h. 11 August 2008 — under workcover for neck injury. Needs another physio as the previous one at Healesville has a gap that needs to be paid by patient … increased pain with massage and manipulation. Needed analgesia. Voltaren and Panadeine Forte given. Review in few weeks if no better. Currently back at work;
i. 13 November 2010 — … has longstanding R shoulder/clavicle;
j. 31 October 2014 — wanting script for Tramadol for hip and shoulder pain. Says called David or advised him to come in ... shoulder old injury, keen to see specialist. Knows the problem but not how to fix the problem ... Graded exercise to shoulder after cold pack. Tendinitis. No injury to shoulder. Explained. Takes anti-inflammatory. Not to use Tramadol as much (as) possible and address real issue;
k. 16 April 2015 — Serge Kramkimel asked for an urgent script for Tramadol …
l. 12 May 2015 — says he takes Tramadol as needed, maybe a couple of days in a row - he finds he get shaky, etc., if he stops it after taking it consistently;
m. 10 October 2015 — Serge usually gets a script done by David, but he has run out of Tramadol and really needs a script today … ;
n. 11 December 2015 — right shoulder pain due to injury since 2007. Intermittent pain, managed conservatively. Occasional Tramadol as needed. Helps with pain. Normal ADLs. Does not affect work … On exam, right shoulder - ROM - Limited IR … Advised to continue to be active. Tramadol if needed;
o. 19 January 2016 — Serge Kramkimel is needing a script for Tramadol …
p. 3 June 2016 — pain in shoulder. Worse now, building the house.
The clinical notes of the Launching Place Medical Centre, concerning the right shoulder, from 22 December 2016, reveal the following:
a. 22 December 2016 — ... PH, not significant, Shoulder pain after fall 10 years ago;
b. 21 January 2017 — History: Repeat medications. Flaring up of shoulder pain. Diagnosis: shoulder pain, bursitis. Prescription: Tramadol;
c. 2 March 2017 — needs steroid injection on shoulder;
d. 15 March 2017 — … care plan for ongoing shoulder pain. Physiotherapy referral. Likely muscular;
e. 17 March 2017 — history follow up. Had right shoulder steroid injections. X-ray after. Feels better. Needs oral pain relief. Will start on physiotherapy. Tramadol prescribed;
f. 26 October 2017 — Tramadol 100 milligrams tablet, modified release changed to Tramadol 200 milligrams tablet, modified release. Prescription printed: Tramadol 200 milligrams tablet, modified release 1 afternoon;
g. 26 April 2018 — medication repeat: Prescription printed. Tramadol 200 milligrams, modified release 1 afternoon;
h. 28 February 2019 — repeat medications: Prescription printed. Tramadol 200 milligrams tablet, modified release 1 afternoon;
i. 6 August 2020 — ongoing right shoulder pain … physio helps but still in pain. Actions: Imaging request printed: MRI on right shoulder. (ongoing pain >? Shoulder tear tendon injury? Bursitis?;
j. 19 August 2020 — results of MRI. Discussed with patient. Explain needs surgical opinion. Patient will check for funding if needs private referral. Will come back;
k. 24 September 2020 — plastic surgeon referral for shoulder pain;
l. 16 October 2020 — shoulder injury approved by Workcover. Waiting for orthopaedic surgeon review. Diagnosis: Supraspinatus tendon tear.
Clinical records from the Emma Court Family Clinic (Dr Markos)[73] reveal the following:
a. 11 February 2017 — follow up. Ongoing shoulder pain. Needs pain relief … Prescription printed: Tramadol 200 milligrams tablet, modified release 1 twice a day;
b. 1 April 2017 — History: Recurrence of shoulder pain. Needs pain relief. Medical certificate. Diagnosis: Shoulder pain. Prescription: Tramadol 200 milligrams tablet, modified release 1 twice a day. Medical certificate given from 1 April 2017 to 3 April 2017;
c. 13 October 2020 — his shoulder injury … waiting for orthopaedic assessment. Referral done. Work capacity for whole year from 6 September 2019 will be organised;
d. 23 March 2021 — is having soon private right shoulder surgery. Will need medical report to insurance for work injury happened back in 2007.
e. I also take note of the management plan completed by Dr Markos on 5 March 2017 following the plaintiff’s presentation with shoulder pain on 22 December 2016. The management plan consisted of treating the plaintiff’s right shoulder pain with massage and physiotherapy with a proposed review to take place on 15 April 2017.[74] The plaintiff was also prescribed:
f. Tramadol 100 milligrams, modified release (1 tablet, afternoon);
g. Tramadol 200 milligrams, modified release (1 tablet twice a day).
[73]JCB, 244-248.
[74]JCB, 80-84.
Based on the above, I find that the plaintiff did provide a correct and realistic history as to the nature of his work duties to Dr Markos, Ms Fisher, Dr Low, Mr Soo, Mr Moaveni and Mr Miller. To summarise their views, I again refer to Mr Miller’s supplementary report dated 7 June 2022. Mr Miller repeated his previous observation that the plaintiff’s case was particularly complex. Mr Miller noted that the plaintiff dated the onset of right shoulder symptoms from the injury at work in October 2007 and that he continued to undertake significant physical work from that time. In respect to the issue of causation, Mr Miller said:
… it is my view that the work injury in October 2007 is a significant material and ongoing contributing factor to the evolution of the right shoulder disease. It is my view that the continued work from 2007 until the client ceased working in 2021 (sic) remains a significant material contributing factor to the current clinical status.
Weighing the whole of the evidence, and on the balance of probabilities, I find that the plaintiff’s current right shoulder condition did arise out of or in the course of his employment with the defendant during the period following 25 October 2007 until 5 September 2019.
For the same reasons, I also find that the plaintiff’s employment with the defendant during the period following 25 October 2007 to 5 September 2019 was a significant contributing factor to the plaintiff’s current right shoulder injury including the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury to the plaintiff’s right shoulder. In making this determination, I am mindful that ‘the words “significant contributing factor” involve resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation’.[75] The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor.’[76]
[75]St Mary’s School v Askwith [2011] VSCA 90, [13]; Ericsson Pty Ltd v Popovski (2000) 1 VR 260, 268 [24] (Brooking JA).
[76] Sensis Pty Ltd v Jones [2018] VSC 754, [93].
I have had regard to Clause 25 of Schedule 1 of the WIRC Act and have taken into account the duration of the plaintiff’s employment, the nature of the work performed, the particular tasks of the work performed and the probable development of the plaintiff’s right shoulder injury occurring if that employment had not taken place. I have also considered the activities of the plaintiff outside the workplace and his involvement in the building of his house.
The defendant submitted that I should find that the plaintiff’s involvement in the construction of his house was a factor in the development of his right shoulder problems following 25 October 2007. Based on my findings, I do not accept that submission. However, even if I had found that the plaintiff’s involvement in the construction of his house was a contributing factor to his right shoulder injury, I am still of the opinion that the plaintiff’s work with the defendant following 25 October 2007 was the significant contributing factor.
The defendant submitted Mr Dalziel’s comments that an MRI in 2008 was essentially normal had to be treated with caution as there was no evidence that an MRI had been performed in 2008. The plaintiff submitted that the court could draw an inference that an MRI had been performed in 2008 as Mr Dalziel had referred to it in his report. I am inclined to accept that submission. However, based on my findings, I do not think much turns on the results of an MRI in 2008 in any event. The fact of the matter is that the plaintiff returned to work after one to two weeks following the incident on 25 October 2007, and there was no suggestion at the time that the plaintiff was unable to work or was a candidate for shoulder surgery.
As to the defendant’s submission that the plaintiff also took Tramadol for back, elbow and hip pain, the plaintiff made that concession. However, I find the plaintiff’s main reason for taking Tramadol over the years was for the relief of his right shoulder pain due to the work he was performing with the defendant.
Incapacity
The plaintiff is seeking weekly payments of compensation from 6 September 2019 to 9 June 2021. The plaintiff has the burden of proof to satisfy the court that his incapacity for work, if any, results from or is materially contributed to by an injury which entitles him to compensation pursuant to section 160 of the WIRC Act.
As to incapacity, the defendant’s primary submission was that the plaintiff was performing his pre-injury duties until retiring from work on 5 September 2019 and therefore could not be considered incapacitated for his pre-injury duties until undergoing right shoulder surgery on 10 June 2021. In the alternative, the defendant submitted that the court could consider the dates of 6 August 2020 (when the plaintiff first saw Dr Markos after he retired) or 16 October 2020 (when Dr Markos initially provided a Workcover certificate of capacity) as possible commencement dates if the court found in favour of the plaintiff.
I do not agree with the defendant’s submission.
I accept the submission of the plaintiff that the date of the plaintiff’s surgery should not be the determining factor for the commencement of weekly payments. Whilst for all intents and purposes, the plaintiff was performing his pre-injury duties until retiring on 5 September 2019, the plaintiff was doing so under sufferance. I find the plaintiff was unable to perform his pre-injury duties without taking Tramadol on a regular basis to go to work. I accept the plaintiff’s evidence that he was restricted in undertaking his normal duties because of right shoulder pain. I do not accept that the plaintiff’s incapacity for his pre-injury duties suddenly developed when he saw Dr Markos on 6 August 2020 or underwent surgery on 10 June 2021. The plaintiff enjoyed his job and continued to work despite increasing restriction, pain, and discomfort with his right shoulder because he had a strong work ethic. The plaintiff should not be penalised for his stoicism in that regard. I find the following comment of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) particularly apt:
… I suspect that, but for the way in which the appellant had been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that, and I have not done so. But it would be unfortunate, and in my view, wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character simply resigned himself to his injury.[77]
[77]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [3].
On all the evidence, I am satisfied on the burden of proof that the plaintiff had an incapacity for his pre-injury duties from 6 September 2019 until 9 June 2021 and that the plaintiff’s incapacity resulted from and was materially contributed to the injury to his right shoulder which was compensable.
The section 185 defence
I now must consider section 185(1)(e) of the WIRC Act.
Pursuant to section 185(1)(e)(i) of the WIRC Act, if the current weekly earnings of a worker who has a work-related injury causing incapacity are reduced because the worker resigned for reasons unrelated to the worker’s incapacity, the Authority may determine not to pay compensation in the form of weekly payments or not to alter the amount of compensation.
Section 114(2) of the Accident Compensation Act 1985 (AC Act) is the predecessor to section 185 of the WIRC Act.
The question of the proper construction of section 114(2) of the AC Act was considered by the Court of Appeal in Jarvis v The Salvation Army Southern Territory (Jarvis).[78] The Court of Appeal held that it is the role of the Magistrate hearing a claim in relation to weekly payments to ‘enquire into, hear and determine the question of the applicant’s entitlement to the reinstatement of his weekly payments.’[79]
[78][2016] VSCA 175.
[79]Ibid [24].
The Court stated that ‘the Magistrate [is] required to determine for himself whether or not a relevant precondition was established and then whether or not compensation in the form of weekly payments should be paid to the applicant having regard to the object and purpose of the Act.’[80]
[80]Ibid [33]; see also Tuimaseve v Wesfarmers Limited [2016] VMC 15.
The principle as set out in Jarvis,[81] has been applied in Tuimaseve v Wesfarmers Limited,[82] a decision of Magistrate Ginnane, Vassallo v Intermotor Sales,[83] a decision of Magistrate Wright and in my decision of Chamani v Freezer Back Trailer & Van Hire Pty Ltd (No 2).[84]
[81][2016] VSCA 175.
[82]Tuimaseve v Wesfarmers Limited [2016] VMC 15.
[83][2017] VMC 16.
[84][2021] VMC 16.
In those decisions, it was noted that the court had the power to determine afresh a worker’s claim for weekly payments in circumstances where a challenge has been made to a decision under section 114(2A) of the AC Act to cancel or alter such payments. In making a fresh determination, the court would have to make its decision pursuant to the terms of section 114(2A) of the AC Act, which explicitly provided that the decision was a discretionary one, in that the decision maker ‘may’ determine whether to alter or cancel the amount of compensation in the form of weekly payments.
This court must ‘remake the decision that had been made’ to reduce the plaintiff’s weekly payments on the basis that he resigned his employment for reasons unrelated to his incapacity.
This requires the court to review the facts of this matter and re-determine whether the plaintiff did resign for reasons unrelated to his incapacity, and, if so, whether it should affect the plaintiff’s entitlement to weekly payments.
I accept the plaintiff’s evidence that he resigned his employment because he was having increasing difficulty with his work duties because of the limitations due to his right shoulder injury and had reached the stage where he was unable to continue. Whilst that decision may have been influenced by reaching an age where he was able to access his superannuation entitlements, enabling him to pay off his mortgage and finish the construction of his house, I find the plaintiff’s primary reason for resigning was related to his incapacity which was attributable to his right shoulder injury. I accept the submission of the plaintiff in this regard. The plaintiff attended Ms Fisher on 31 October 2019 and said he had had recently retired due to increased right shoulder pain. At that time, the plaintiff was not contemplating a claim for compensation and was simply seeking treatment for right shoulder pain and the limited movement in his right shoulder. The plaintiff’s attendance on Ms Fisher was one month after retiring and approximately 12 months before he completed the second claim for compensation. The plaintiff’s evidence was that he was unaware he could make a new claim for compensation when he was not working.
The medical evidence is also supportive of the plaintiff having continual problems with his right shoulder over the years. I have previously commented on the plaintiff’s desire to continue working despite ongoing difficulties and he should not be penalised for that work ethic.
The evidence of Mr Opitz corroborated the plaintiff’s evidence. Mr Opitz worked with the plaintiff and was aware that he had ongoing issues with his right shoulder and knew the plaintiff was taking painkillers and having injections to relieve the pain whilst at work. I accept the evidence of Mr Opitz that the plaintiff told him he was resigning from work because of shoulder issues.
I find that Mr Yusuf, who is still employed by the defendant, was aware of the plaintiff’s right shoulder issues but tried to downplay the plaintiff’s right shoulder problems when giving evidence. Mr Yusuf said he could not remember if the plaintiff spoke to him about any right shoulder problems before resigning from work but did know that the plaintiff had right shoulder problems. Mr Yusuf said he did not know that the plaintiff took Tramadol to relieve his shoulder pain but did say it would have been a problem if the plaintiff was taking Tramadol to stay at work. I accept the evidence of the plaintiff that he was taking Tramadol to stay at work and, based on Mr Yusuf’s concession, that would have been a problem for the plaintiff and the defendant.
I accept the plaintiff’s evidence that he told Mr Yusuf about his shoulder problems and that he wanted to resign from work as a result. I accept the plaintiff’s evidence that Mr Yusuf told him to send him an email. I accept the plaintiff’s evidence that he saw no need to say in the email that he was resigning because of his shoulder problems because Mr Yusuf already knew about his problems. I am also of the view that the plaintiff was clearly not intending to make a further claim for compensation when he resigned and did not appreciate that his reason for resigning would become an issue for debate in the future.
Alternatively, even if I had believed section 185(1)(e)(i) of the WIRC Act had been applicable, in line with the decision of Jarvis,[85] the court has a general discretion to reinstate the plaintiff’s entitlement to weekly payments of compensation.
[85][2016] VSCA 175.
Shortly after ceasing work, the plaintiff commenced seeing Ms Fisher. The plaintiff said he had been unable to have regular treatment for his right shoulder injury until ceasing work. The plaintiff had the right to make a claim for compensation when he resigned; however, as previously stated, wrongly believed that he was unable to make a further claim for compensation as he was not working. The plaintiff said he did not know he could make the second claim until Ms Fisher explained the nature of his injury to him. I find that the plaintiff should not be penalised for that lack of knowledge. This is especially so when, following the second claim, and the subsequent involvement of his solicitors, the plaintiff was subsequently placed on weekly payments of compensation from the date of surgery. It is also important to note that the medico-legal doctors who examined the plaintiff on behalf of the defendant, believed the plaintiff’s right shoulder injury was attributable to the nature of his work duties up to 5 September 2019.
Section 10 of the WIRC Act includes the objective to make provision for the effective rehabilitation of workers, to facilitate their return to work and to ensure that they receive appropriate compensation, as expeditiously as possible. The reinstatement of the plaintiff’s entitlement to weekly payments of compensation would meet these legislative objectives and is in accordance with the beneficial nature of the legislation. I do not accept the defendant’s submissions concerning section 10 of the WIRC Act. The court would have exercised its discretion and reinstated the plaintiff’s entitlement to weekly payments of compensation as of 6 September 2019.
Furthermore, the evidence of Mr Yusuf was that prior to his resignation on 5 September 2019, the plaintiff had been a loyal and hard-working employee. There had been no concerns noted about the plaintiff’s work performance prior to that date. These are relevant considerations to consider in determining whether the plaintiff is entitled to the reinstatement of his weekly payments.
I also take into account the nature of the plaintiff’s right shoulder injury and the resultant surgery which was accepted as compensable. The plaintiff should be entitled to adequate and just compensation for the period of incapacity preceding the surgery as a result.
Conclusion
I find that the plaintiff’s current right shoulder condition did arise out of or in the course of his employment with the defendant during the period following 25 October 2007 until 5 September 2019.
I also find that the plaintiff’s employment with the defendant during the period following 25 October 2007 to 5 September 2019 was a significant contributing factor to the plaintiff’s current right shoulder injury including the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury to the plaintiff’s right shoulder.
The plaintiff is entitled to weekly payments of compensation from 6 September 2019 to 9 June 2021, together with reasonable medical and like expenses, as a result of the second claim. Accordingly, the decision of CGU on behalf of the defendant dated 23 December 2020 is set aside.
With respect to the plaintiff’s impairment benefits claim dated 18 July 2022, I find that the plaintiff has sustained an aggravation of the injury to his right shoulder resulting in surgery on 10 June 2021 as a result of his employment over time to 5 September 2019. Accordingly, the decision of Gallagher Bassett on behalf of the defendant dated 12 August 2022 is set aside.
I invite the parties to provide the appropriate orders to the court.
MAGISTRATE RICHARDS
20 March 2023
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