Kuloba v JBS Australia Pty Ltd
[2019] VCC 347
•26 March 2019
You this might be you will will you listen to what is
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-00106
| Mohammed Kuloba | Plaintiff |
| v | |
| JBS Australia Pty Ltd | Defendant |
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JUDGE: | Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 12, 13, 15 and 18 March 2019 | |
DATE OF JUDGMENT: | 26 March 2019 | |
CASE MAY BE CITED AS: | Kuloba v JBS Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 347 | |
REASONS FOR JUDGMENT
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Defendant | Ms K Galpin | IDP Lawyers |
HIS HONOUR:
1 In this application the plaintiff seeks leave to commence a proceeding claiming damages for an injury which he suffered in the course of his employment with JBS Australia Pty Ltd.
2 The injury upon which the plaintiff relies involves a traumatic laceration which he suffered on 9 October 2008 to his left elbow and injury in the form of a rotator cuff tear which was subsequently diagnosed to be present in his right arm.
3 The plaintiff is self – represented. He has filed a number of affidavits dated 14 August 2014; 31 January 2019 and a further document headed “Particulars of Injury and Ongoing Health Affects”, the content of all of which he relies upon in this application. The plaintiff also gave sworn evidence in the application, was cross-examined and gave evidence in the form of re-examination.
4 In addition, the parties rely upon a vast body of medical reports and other evidence which they have tended and are contained in the Court Book comprising some 408 pages.
5 The following issues arise for my determination:
(i) Whether the incapacity with which the plaintiff presents in his right shoulder involves a compensable injury;
(ii) If the incapacity with which the plaintiff presents in his right shoulder involves a compensable injury, whether that injury arises as a consequence of injury sustained by the plaintiff to his elbow on 9 October 2008;
(iii) Whether the consequences to the plaintiff of the injury sustained by him to his right shoulder and to his right elbow must be assessed separately; and
(iv) The extent of the consequences of the compensable injury or injuries with which the plaintiff presents.
6 The content of the plaintiff’s affidavit evidence is self-explanatory and no purpose is served in the course of these reasons in merely recording again the material set out in them. It is appropriate, however, given the issue which arises as to causation with respect to the plaintiff’s right shoulder injury, that I record the fact that in his affidavit of 14 August 2014 the plaintiff described the circumstances in which he suffered injury as follows:
“I suffered the subject injuries on 9 October 2008 when I was lifting part of a carcass from the floor and was struck from behind by an electric round saw machine which was being used by another worker to cut fat off the carcass. This was a hand held machine and I believe that the other worker must have lost control of the machine in order for it to come free and come into contact with my body. At the time of the incident I was lifting up the stomach of a cow out of the carcass.
The contact was made with my right elbow region...”
7 There is no issue as to the compensable nature of the discrete trauma occasioned to the plaintiff’s right elbow in the course of the incident of 9 October 2008.
8 The defendant does assert, however, that the plaintiff’s claimed injury and incapacity in his right shoulder does not arise by reason of any compensable injury suffered by him in the course of his employment with the defendant.
9 In the course of his evidence given in this proceeding, the plaintiff described the heavy nature of the work which he undertook in the course of his employment with the defendant both before he sustained an injury in October 2008 and after that date. He relies on that evidence as founding a basis for the compensable nature of the condition which he developed in his right shoulder.
10 Essentially it is the plaintiff’s evidence that as a result of the incident of 9 October 2008 he has thereafter suffered from a condition in his right elbow, forearm and hand which has operated from that day onwards:
· to restrict his ability to move his elbow; and
· to deny him the use of his elbow, forearm and hand
without the plaintiff experiencing significant discomfort.
11 The plaintiff makes a similar statement with respect to the condition in his right shoulder. In the course of his evidence in the proceeding, however, the plaintiff made it clear that he first commenced to experience symptoms which extended between his elbow and his shoulder in or about July 2009.
The oral evidence given by the plaintiff in the course of this proceeding
12 English is the plaintiff’s second language. In the course of his evidence, the plaintiff found it difficult to confine his responses to the questions which he was asked and more often than not sought to explain his position by referring to medical evidence or expressing quasi-medical opinions based upon his understanding of the medical evidence which has been assembled in the case. This in turn made it difficult, at times, to decipher the relevance of the plaintiff’s answers to questions on cross-examination.
13 I am satisfied that the plaintiff in no way sought to deliberately mislead me as he gave his evidence nor did he attempt to give evidence which he did not believe to be the truth.
14 I am further satisfied, however, that a real issue arises both as to the plaintiff’s reliability and objectivity when describing the level of his symptoms and disability between the date of his injury and the date of this hearing.
15 In my opinion the presence of the plaintiff’s lack of objectivity was clearly demonstrated not only by statements made by the plaintiff in the course of his cross-examination, to which I will subsequently refer, but also by the discrepancy between the plaintiff’s evidence as to the permanence and extent of the disability and symptoms with which he suffers in his right shoulder and elbow when compared with the findings of medical practitioners as to those issues. I will explain my justification for this comment in the course of my reasons below.
16 The plaintiff’s lack of objectivity in the course of giving evidence, is in my opinion, amply demonstrated by the plaintiff’s:
(i) refusal to accept that since he sustained the injury on 9 October 2008 he has, at no time, suffered any further trauma to his right elbow; or
(ii) dogged attempt to explain the presence of persuasive evidence to the contrary.
17 I am satisfied that in September 2010 the plaintiff, in the course of a number of attendances by him at Western Health, received treatment for an injury/infection in his right elbow which the plaintiff, at the time, reported to the hospital arose by reason of the plaintiff falling a month or so earlier.
18 There is no issue that the hospital records contain that information or that the plaintiff’s presentation at that time was investigated by way of ultrasound and x-ray of the right arm[1].
[1] T 300-301.
19 When this material was put to the plaintiff in the course of his evidence, he maintained that the documentation relevant to those attendances was mistaken in that it referenced a condition in his right elbow when in fact the condition under investigation was present in his left elbow.
20 In asserting that position, the plaintiff insisted that these attendances were related to a condition with which the plaintiff presented to the the general practitioners at the Millennium Clinic in January 2010 which involved swelling and inflammation of his left elbow and for that reason must involve an investigation of the left elbow only.
21 An examination of the Millennium Clinic notes reveals that the last presentation by the plaintiff to that clinic with left elbow symptoms involved an attendance by him on 25 January 2010 and that the plaintiff presented at the clinic thereafter on some eight occasions with no complaint of the presence of any symptoms in his left elbow.
22 The plaintiff’s dogged maintenance of the position that the condition which was present in his left elbow in January 2010 was responsible for the treatment he received in September 2010, at which time the treatment was mis-recorded by referring to the treatment as involving the plaintiff’s right elbow, in the context of the presence of:
(i) a notation within the medical record that his attendance in September 2010 arose by reason of a fall onto his right elbow some five weeks ago, as a result of which he developed a fluid filled swelling in his right elbow;[2] and
[2] T301.
(ii) the reports of a right elbow ultrasound and a series of right elbow x-rays being undertaken on 17 September 2010;
is in my view, not only illogical, but also demonstrative of the plaintiff’s inability to accept evidence which might in any way challenge his recollection and belief as to the responsibility of the plaintiff’s compensable injury sustained on 9 October 2008 for the totality of any symptoms or disability with which he presents in his right elbow.
23 A similar comment can be made as to the discrepancy between the plaintiff’s evidence as to his inability to move his right elbow and shoulder without pain and the recordings made by the numerous medical practitioners who have reported upon the plaintiff’s presentation to the opposite effect, the history of which I will set out on my findings below.
24 Given the number of medical practitioners who made those findings (be they treating medical practitioners or consultants retained on behalf of both the plaintiff and the defendant), I do not accept the plaintiff’s evidence that each of those practitioners have failed to notice the presence of the discomfort and pain experienced by the plaintiff in moving his shoulder or elbow and that each of them would have failed to comment upon the presence of that discomfort.
25 Further, although there is some medical evidence which supports the position that the management by the Millennium Clinic of the plaintiff’s initial presentation with a laceration on 9 October 2008 may have been less than perfect, the history of the plaintiff’s presentation:
· at the clinic after 9 October 2008; and
· specifically during the period between the plaintiff’s return to unrestricted duties with the defendant and the termination of his employment (which I will examine in detail below)
in no way supports the plaintiff’s position that the plaintiff was having difficulty undertaking the heavy physical work undertaken by him when he returned to unrestricted duties in the course of his employment with the defendant, or that he was suffering from symptoms of any significance in either his elbow or his shoulder when he undertook that work.
26 Whilst the plaintiff asserted that he was, throughout this period of time, presenting to the clinic with symptoms of pain and restriction of movement in his elbow and arm, I find it unlikely that if this was the case there would have been a complete failure to make any note of the presence of such symptoms or restriction by the various general practitioners to whom the plaintiff presented. Further, the plaintiff’s assertion that he was continually managed by the prescription of Panadeine Forte during this period is not borne out by the medical record.
The medical evidence as to:
· the injury suffered by the plaintiff to his right elbow on 9 October 2008 and;
· the condition in his right shoulder.
The medical records of the Millennium Clinic
27 The initial management of the plaintiff’s injury was undertaken by the medical practitioners at the Millennium Clinic which is a general practice.
28 Relevantly the practice records of the clinic record the plaintiff attending his general practitioner on 10 June 2008 with a complaint recorded as “painful, stiff fingers, elbows 1/12” at which time pathology was requested for the purpose of exploring the issue as to whether the plaintiff was presenting with polyarthralgia.
29 On 10 July 2008 comment was made that no cause for the plaintiff’s presentation with polyarthralgia was found.
30 On 24 September 2008 the plaintiff presented to the clinic with a cough or runny nose and fever. He was prescribed an antibiotic and was also prescribed Panadeine Forte tablets 500 mg/30 mg on that date.
31 There is no issue that the plaintiff attended the clinic on 9 October 2008 with an injury to his right elbow which involved a 4 centimetre laceration, which condition was managed by insertion of three sutures and the application of a dressing.
32 On 10 October 2008, the plaintiff attended the clinic complaining of swelling in his fingers and arm at which time he was prescribed antibiotics and Panadeine Forte 500 mg/30 mg.
33 On 12 October 2008 the plaintiff attended the clinic complaining of reduced grip strength in his right hand. On examination the grip strength was recorded as being 5/5 and an arrangement was made for the plaintiff to commence physiotherapy.
34 According to the medical records of the clinic, the plaintiff made steady progress in recovering from his injury:
· by 15 October 2008 the plaintiff was certified fit to return to light duties;
· on 20 October 2008 the plaintiff’s stitches were removed;
· on 26 October 2008 the plaintiff is noted as presenting with some tenderness and restriction of movement in his right hand, the absence of swelling and no neurological or vascular deficit;
· on 2 November 2008 the plaintiff is recorded as reporting that he had been doing well and felt better and that he was able to return to his normal duties. At that time an examination was recorded as revealing an absence of tenderness and swelling and very mild restriction present in his right hand and the plaintiff was certified as being able to return to his usual duties as from 3 November;
· on 5 December 2008 the plaintiff presented to the clinic with headaches. The records confirm the plaintiff was provided with a certificate; and
· on 2 March 2009 the plaintiff presented with symptoms of diarrhoea and bloating;
Whilst there is an issue as to the date upon which the plaintiff last worked for the defendant there is no issue that he had been retrenched on 1 March 2008.
It follows that between the time at which the plaintiff was certified as being fit for full-time duties and the date upon which his employment with the defendant was terminated, the plaintiff attended his general practitioner on 5 December 2008 and made no complaint as to:
· difficulty he was encountering in performing his work; or
· the presence of symptoms in his right arm.
Nor did the plaintiff seek any treatment for that condition. Further, contrary to the plaintiff’s evidence that he made no complaint because the only treatment he was prescribed was the prescription of medication, the records of the clinic provide no support for the fact that the plaintiff was either prescribed with or was taking medication to control symptoms associated with his October 2008 injury.
· on 24 June 2009 the plaintiff presented with a painful right hand with paraesthesia at which time he was prescribed ibuprofen and issued with an ‘attendance certificate’;
· On 14 July 2009 the plaintiff is noted as presenting with a painful right arm with paraesthesia since the laceration, and at the same time presenting with constant back and leg pain associated with a previous car accident. On that occasion the plaintiff was seeking a letter modifying his job requirements and commenting that he would like to apply for a disability pension and Dr Minh Mai provided a certificate attesting to the fact that the plaintiff had been suffering from “weakness in his right arm-unable to grip after a previous work injury” and that he also presented with “chronic back and leg pain secondary to a car accident”.
35 After 14 July 2009 the plaintiff next attended the Millennium Clinic on 4 December 2009 when he presented with an injured left index finger which had been twisted by a friend.
36 On 14 December 2009 the plaintiff presented with painful fingers for two days; his fingers were noted to be slightly swollen, no record is made as to whether the plaintiff’s right or left hand was involved in this presentation.
37 On 5 January 2010 the plaintiff presented with frontal headache.
38 On 10 January 2010 the plaintiff presented at the clinic with pain in his left elbow following an altercation in respect of which he had presented for treatment to St Vincent’s Hospital. On examination, the elbow was swollen and purulent discharge was present. Throughout January 2010 the plaintiff attended regularly at the clinic for wound care management of his left elbow.
39 Thereafter the plaintiff attended the clinic from 9 February 2010 to 4 August 2010 for matters unrelated to any condition present in his right elbow, upper arm or shoulder.
40 On 9 August 2010 the plaintiff attended with a history of being attacked and robbed the day before, and having fractured his right thumb that day.
41 Thereafter, between 9 August 2010 and 22 November 2011 the plaintiff attended the clinic on a total of 12 occasions for conditions unrelated to any symptoms or disability associated with the injury or incapacity the subject of this application.
42 On Friday 16 December 2010 the following notes appear in the hand of the practice manager at the clinic “came with forms today from JBS Swift wanting to claim for his work cover injury in October 2008!! Dr Salter is the only doctor that still works here that saw him during this period -he is not willing to involve himself with any of this paperwork so long after the consultation dates (3 years) Copy of all consults and certificates given to Mohammed to provide to WorkCover if he decides to go ahead with this claim.”
43 Thereafter the plaintiff attended the clinic:
· on 24 December 2011 complaining of aching pain “overall bones”;
· on 13 January 2012 complaining of pain and paraesthesia together with weakness of grip in his right arm for which he was prescribed Panadeine Forte 500 mg/30 mg and provided with a certificate letter;
· on 14 March 2012, at which time a letter was created for the plaintiff addressed to Shine Lawyers
· on 27 March 2012 when he was provided with certificates with respect to his right arm and was prescribed a raft of medication including Panadeine Forte 500 mg/30 mg;
· on 26 April 2016 seeking a medical report with respect to his 2008 injury at which time he was again prescribed Panadeine Forte 500 mg/30 mg.
44 After that time and up until August 2012, the plaintiff attended the practice on a number of occasions seeking letters and reports addressed to various bodies and practitioners with respect to the injury or incapacity the subject of this application.
Approach to analysis
45 My analysis as to the issue of causation will be undertaken by the application of common sense and worldly experience in the setting of the relevant chronology to which I have referred as to the plaintiff’s attendance at the Millennium Clinic and a further chronology, which I am satisfied is established by the evidence in this instance, namely that:
(i) upon commencing employment with the defendant, the plaintiff worked in the offal room. The work which he undertook involved processing beef carcasses which involved heavy lifting (including at times lifting boxes weighing up to 20 kg above shoulder height), stooping and bending;
(ii) on 9 October 2008 the plaintiff sustained a laceration to his right elbow when accidental contact was made with his elbow by a handheld circular saw being wielded by a co-worker;
(iii) as a result of the incident of 9 October 2008 the plaintiff attended the Millennium Clinic in the manner which are summarised above;
(iv) upon returning to work the plaintiff undertook light work about which he was instructed by the defendant that if he had difficulty performing the work he should desist;
(v) upon his return to normal duties in November 2008, he undertook those duties until the Christmas break in 2008;
(vi) after the Christmas break the plaintiff returned to work but shortly thereafter ceased work on 19 January 2009. Although the plaintiff is adamant that he continued to work until 28 February 2009, the defendant’s pay records do not support this position. The plaintiff agreed when first asked in cross-examination about the date on which he stopped work that he did so in January 2009[3] and I accept the validity of those records;
[3]T 89.
(vii) it is the plaintiff’s position that the reason for him ceasing work at that time was the incapacity which he suffered by reason of injury to his elbow. At the same time, however, the plaintiff conceded that the reason for his cessation of work was most probably by reason of back pain. There is no documentary evidence which supports that fact however and in the course of his cross-examination the plaintiff acknowledged that his back pain was increasing[4] and I interpret the plaintiff’s evidence to be that his back pain was a factor in his decision to stop work;
[4] T T89 – 90.
(viii) the plaintiff was subsequently retrenched on 1 March 2009;
(ix) the first occasion upon which the plaintiff commenced to experience symptoms which extended above his elbow between his elbow and his right shoulder was approximately July 2009.
46 It is in the context of this history of medical management immediately following the plaintiff’s October 2008 injury and the chronology to which I have referred above that the defendant puts in issue the ongoing significance, in a causal sense, of any injury sustained by the plaintiff in October 2008 and the disability of which the plaintiff complains at this time to be present in both his right elbow and his right shoulder.
47 I now turn to a summary and analysis of the medical evidence which I will deal with chronologically on the basis of the date upon which the plaintiff presented to the relevant medical practitioner.
Summary of the reports issued by both treating and consulting medical practitioners relied upon by both parties in the proceeding.
48 In a report dated 6 December 2011, Dr Elizabeth Westphal, a clinical psychologist, states that the plaintiff presented to her on that day for his first session of psychotherapy to address difficulties with managing a high level of stress and anxiety and mild depressive symptoms.
49 On 6 June 2012 the plaintiff attended Dr Erin Gordon, a physiotherapist, for management of his chronic lumbo-sacral back pain at that time. The plaintiff received no treatment for any condition the subject of this claim.
50 On 13 September 2012 the plaintiff consulted Dr Bronwyn Wells, a general practitioner, practising at the Joslin Clinic. At that time Dr Wells reported that she was unable to comment upon the relationship between the plaintiff’s current disability and his work injury given the period of time which had elapsed between that injury and the date of the Plaintiff’s first consultation.
51 As at October 2012, Dr Wells
(i) described the plaintiff as presenting with:
· mildly increased tone in the right arm;
· strength in the right arm on all movements including flexion and adduction; elbow flexion and extension, wrist flexion and extension. Dr Wells described the plaintiff’s finger and grip strength as being good, commenting however that it was slightly less than that present on the left side and that this would not be expected as the plaintiff was right-handed.
(ii) opined that whilst the plaintiff was able to lift heavy weights as a one-off event she was uncertain as to whether he could lift that sort of weight repetitively and maintain grip strength safely.
52 On 29 May 2014 Dr Wells referred the plaintiff for physiotherapy treatment in management of his long-term pain in his right shoulder and elbow and commented that he had recently been diagnosed with a partial supraspinatus tear in the bulge at C4 impinging on the nerve root.
53 On 12 November 2015 Dr Wells commented that the plaintiff presented with:
a) A cervical spine disc prolapse which impinged on the C4 nerve root;
b) a right supraspinatus tendon tear;
c) a right radial head osteochondral defect at the elbow; and
d) lumbar spine osteoarthritis including disc prolapse at L4/5,
and at which time Dr Wells commented that the current combined effect of the above conditions was such that it was not surprising that the plaintiff suffered from pain and perceived weakness.
54 On 11 March 2016 Dr Wells provided an almost identical report commenting that the plaintiff’s symptoms involved:
a) perceived right arm weakness;
b) some mild swelling of the right-hand and pain in the right upper arm and forearm; and
c) neck and lower back pain and recurrent stabbing left-sided headaches.
55 In a report dated 13 February 2018, Dr Wells commented that the plaintiff “subjectively states the pain and weakness in his right arm and hand is the same” and that:
a) the plaintiff employed paracetamol, pregabalin and Endep;
b) the plaintiff presented with a number of other medical conditions which required ongoing management, however the condition of his right arm was stable; that whilst she reported to Centrelink that the plaintiff was unfit for manual work and required retraining, nothing eventuated in that regard and the plaintiff was unfit to undertake any work requiring lifting more than 2 kg regularly.
I am satisfied that in expressing that opinion Dr Wells was doing so taking into account the condition of the plaintiff’s right shoulder and right elbow and aggregating the effect of those conditions.
56 I note that in her reports Dr Wells was cautious in the language that she used as to the presence of the symptoms complained of by the plaintiff. I make that statement having regard to the choice of words employed by Dr Wells:
· in her report of March 2016 in which she observed that the plaintiff presented with “pain and perceived weakness” in his right shoulder/ arm/hand; and
· in her report dated February 2018 in which she described the plaintiff’s disability as being “a perceived weakness and pain in his right arm and hand” and commented upon the plaintiff’s “subjective statement” as to the pain and weakness in his right hand.
57 Such statements, in my opinion, raise the issue as to whether Dr Wells was satisfied that there was an organic basis or a justification for the presence of the statement or perception to which she referred.
58 On 20 January 2012 the plaintiff was medically examined on behalf of the defendant by Mr John Roth, at which time he presented with pain in the lateral aspect of his right elbow and hand with an inability to grip properly.
59 On examination, Mr Roth recorded the presence of a full range of painless movement in the plaintiff’s right shoulder and a mild restriction of movement in the right elbow about which he noted the presence of no discomfort of pain associated with elbow movement.
60 On the basis of his examination Mr Roth opined the plaintiff was fit to resume any form of employment at that time.
61 Ms Leanne Graham, a hand and occupational therapist, examined the plaintiff in July 2012. On 27 July 2012 Ms Graham authored a report which described the plaintiff presenting with mild oedema throughout his right hand and fingers up to his forearm; good active motion in the fingers and thumb; no evidence of weakness in any particular nerve distribution and a full range of elbow flexion and extension. Ms Graham also noted reduced supination and limitations in shoulder range of motion especially abduction and extension.
62 At that time Ms Graham elicited the presence of:
· Grip Strength - right 5 kg - left 34 kg; and
· Lateral Pinch - right 4.5 kg - left 9.5 kg.
63 She commented that she had commenced the plaintiff on simple shoulder exercises; that she believed he required nerve conduction studies and also further investigation of his shoulder to ensure no structural problems were present.
64 On 14 September 2012 the plaintiff was examined on behalf of the defendant by Dr David Fish, a consultant occupational and environmental physician, for the purpose of undertaking an impairment assessment.
65 Dr Fish obtained a history from the plaintiff of the presence of incapacitating pain in his right elbow which spread down to his right hand and up to his right shoulder. On examination, Dr Fish reported the presence of diffuse tenderness in the right shoulder, in the presence of a good range of normal motion, he also reported the plaintiff’s wrist and finger movements to be normal and his elbow movements to be entirely normal.
66 On 17 January 2013 the plaintiff was examined by Dr Peter Blombery, a consultant physician. At that time the plaintiff presented to Dr Blombery with pain extending from his shoulder down to his hand. The plaintiff told Dr Blombery that he had suffered a laceration to his right elbow on 9 October 2008 and that upon returning to work after a month he found it difficult to lift boxes of meat which was an essential part of his job the result being that he ceased work because of the presence of pain in his shoulder and neck.
67 On examination, Dr Blombery noted the plaintiff was able to fully extend his elbow, but had flexion limited to 70 degrees. He described the plaintiff presenting with tenderness upon pressure around his right shoulder but with a full range of movement in the shoulder.
68 Dr Blombery opined that the plaintiff presented with an organic pain disorder associated with the laceration to the right elbow, the effect of which was to limit him to employment which did not involve his dominant right limb and thus preclude him from employment.
69 Dr Blombery re-examined plaintiff on 24 April 2016 at which time he opined that it appeared that the plaintiff had sustained an injury to the radial head of the right elbow which had resulted in a 2 mm osteochondral defect. At that time the plaintiff reported to Dr Blombery the presence of no real change in his arm which involved the presence of pain extending from the shoulders of the right elbow and the flexor muscles of the forearm. The plaintiff told Dr Blombery that he was awaiting surgery to his right shoulder.
70 On examination, Dr Blombery described the presence of tenderness of the right shoulder, elbow and forearm and a full range of movement of the right elbow. He commented that imaging had revealed the presence of a supraspinatus tear in the right shoulder which may require surgical treatment, commenting that whilst it was difficult to know whether that condition related to the injury of 9 October 2008, he never-the-less expressed the opinion that “it does seem likely that there is a contribution from that as he would have had to suddenly move his right arm extremely powerfully as a consequence of the injury at the time.”
71 He opined that the plaintiff presented with a laceration to the right elbow complicated by a pain syndrome and also injuries to the right shoulder and that the effect of the condition of the plaintiff’s right arm was too incapacitating for work.
72 Dr Blombery re-examined the plaintiff on 19 June 2018 at which time the plaintiff presented with ongoing pain in his right shoulder and right elbow. On examination, Dr Blombery described the presence of tenderness upon pressing the shoulder and scapular; he described the presence of a full range of movement of the shoulder (although Dr Blombery describes that movement being in the left shoulder, I am satisfied this is a mistake and he is referring to the right shoulder), and opined:
· that the plaintiff presented with a circular saw injury to his right elbow and right shoulder requiring surgery and that both of these conditions were complicated by the presence of a pain syndrome;
· That the right shoulder injury arose by reason of heavy lifting during the plaintiff’s employment;
· that by reason of the incapacity with which the plaintiff presented in his right shoulder and elbow, the plaintiff was unfit for suitable employment on a permanent basis;
· that the injury to the elbow and injury to the shoulder each taken in isolation would cause very marked limitations in his capacity for general activity and in particular lifting.
73 In expressing his opinion as to the relationship between the plaintiff’s employment and the condition in his right shoulder, Dr Blombery did so on the basis of the history provided by the plaintiff:
(i) First, that on returning to work he developed ongoing pain “particularly in the right shoulder” ; and
(ii) Second, that the plaintiff’s duties upon returning to work involved a lot of heavy lifting which caused him increasing pain in his shoulder.
74 That history contradicts the evidence given by the plaintiff as to the nature of the work which he undertook upon his return to employment which was essentially light even though it did involve him handling boxes, and that the first time he experienced symptoms in his arm which extended above his elbow was in July 2009. It is clear that history is significantly different to that upon which Dr Blombery expressed his opinion as to the causation of the plaintiff’s right shoulder injury and it is for that reason that I do not find the opinion expressed by Dr Blombery as to the relationship between the plaintiff’s work and the cause of his right shoulder injury to be persuasive.
75 On 30 January 2013, at the referral of the plaintiff’s solicitors, the plaintiff was examined by Mr Owen Deacon, orthopaedic surgeon.
76 At that time:
· Mr Deacon had access to notes and reports generated by the Millennium Clinic and the Joslin Clinic.
· The plaintiff presented to Mr Deacon with pain in the right shoulder and right elbow such that he was required to avoid the use of his right arm generally.
77 On examination, Mr Deacon:
(i) described the plaintiff as presenting with:
· repetitive abduction of his shoulders no different from right to left; and
· the presence of a significant positive impingement syndrome in the dominant right shoulder;
(ii) commented upon an ultrasound which provided evidence of the presence of a partial tear of the supraspinatus and opined that his right shoulder was the main problem area and mostly responsible for his loss of function in his arm.
78 Mr Deacon opined that:
· the right shoulder injury was materially contributed to by the nature of the plaintiff’s employment, on the basis of a significant aggravation by disuse following the elbow laceration;
· the plaintiff might have jerked his right arm when he received the laceration to his elbow, commenting that the pathology in the shoulder was probably well advanced in October 2008 but aggravated by that incident.
79 Mr Deacon commented that he could detect no residual problem in the right elbow. He described the plaintiff’s elbow movements as being full and painlessly carried out, but noted the presence of an abnormality in the shape of the forearm muscles and swelling on the dorsum of the right hand.
80 On 1 August 2013 the plaintiff was examined by Dr Kenneth Brearley, a general surgeon. At that time, the plaintiff presented to Dr Brearley with continuing pain associated with the use of the right elbow and his right shoulder. On examination of the right shoulder, Dr Brearley detected quite marked limitation of movement. An examination of the right elbow, however, revealed the absence of swelling, slight limitation of full flexion and the presence of full rotation.
81 Dr Brearley opined that the laceration to the plaintiff’s right elbow had healed satisfactorily with slight restriction of movement and that the plaintiff presented with a tear of the supraspinatus portion of the rotator cuff in the right shoulder.
82 Dr Brearley opined that the injury to the plaintiff’s right shoulder was initiated by heavy lifting undertaken in the course of his employment, although he commented that the plaintiff was unable to work because of back pain, right shoulder pain and ongoing symptoms in his right elbow region. The examination by Dr Brearley of the function of the plaintiff’s right elbow and his description of the recovery by the plaintiff from the laceration to the elbow are in my view inconsistent with his subsequent statement that the plaintiff’s right elbow continue to impact upon his capacity for work or significant activity.
83 As to Dr Brearley’s opinion relevant to the cause of the plaintiff’s right shoulder injury, that opinion appears to attribute to the note obtained from Dr Brearley that the plaintiff had developed “pain in the right shoulder which he attributed to the heavy lifting he had been doing”. Given that the plaintiff’s evidence in this case involves the fact that upon his return to employment with the defendant he undertook only light duties, I find the opinion expressed by Dr Brearley upon the issue of causation of the right shoulder injury to lack any persuasive merit.
84 Dr Brearley further examined the plaintiff on 2 March 2016. On examination of the plaintiff’s right elbow Dr Brearley again found there to be slight limitation on extension or flexion and normal rotation as to the right shoulder. Dr Brearley commented that the plaintiff continued to await surgery for that condition but commented that clinical examination revealed the presence of a good range of shoulder movement with ongoing pain. Dr Brearley opined that the plaintiff did have a capacity for limited forms of suitable employment which was limited to the use of his left non-dominant arm.
85 In his first affidavit, the plaintiff describes his work in the offal room as involving him processing carcasses and involving a lot of heavy lifting, stooping and bending. He does not report the onset of any symptoms in his shoulder associated with this work.
86 In his second affidavit, the plaintiff merely restates those comments but describes the onset of his shoulder pain in this way:
“…when I got laceration applied on my right hand elbow very painful by the force of pain I sparkled my shoulder I think that is when impingement happened same day as my arm was swollen from the very first day of the accident...”
87 This statement was never explained by the plaintiff in the course of his evidence. I interpret it however, to be a statement consistent with the hypothesis identified by Mr Deacon, that the plaintiff may have jerked his right arm at the time which he received the laceration to his right elbow. I find that hypothesis to be reasonable and most probably likely.
88 In my opinion however, the delay between the onset of any symptoms which the plaintiff experienced as a result of the condition of his right shoulder makes it unlikely that the presence of the condition in the right shoulder was caused in any material way by such a movement.
89 In my opinion, the presence of the delay between the symptoms in the right shoulder and the incident in October 2008 is such as to make the opinion expressed by Mr Deacon as to the causal relationship between the incapacity sustained by the plaintiff to his right elbow and his shoulder injury as no more than inventive speculation. My position in that regard is supported by the absence of any similar opinion expressed by any other of the many medical practitioners who have opined in this instance.
90 On 24 May 2014 the plaintiff was seen at the referral of Dr Wells by Mr Audi Widjaja, an orthopaedic surgeon. Mr Widjaja opined that the plaintiff presented with a large disc prolapse at the C3/4 level of cervical spine with right C4 nerve root impingement and a partial tear of the supraspinatus in the right shoulder for which he referred the plaintiff to the St Vincent’s Hospital neurosurgical department for treatment of the condition of the plaintiff’s cervical spine and for physiotherapy for his right shoulder.
91 Mr Widjaja reviewed the plaintiff on 15 July 2014 at which time the plaintiff complained of a painful right elbow. MRI imaging at that time was reported as demonstrating the presence of a 2mm osteochondral defect on the radial head of the articular surface.
92 In a report dated 10 April 2015, Mr Widjaja commented that the plaintiff had undergone a steroid injection into the elbow, the effect of which was to relieve the pain almost fully. He concluded his report commenting that the plaintiff did not need further treatment.
93 In a report dated 23 February 2017 Mr Widjaja commented that upon his last attendance, the plaintiff had been informed to return for further review appointments if necessary and that by reason of his failure to do so he assumed that the plaintiff was “adopting sick behaviour for the purpose of WorkCover compensation.”
94 Whilst I do not necessarily accept the final comment made by Mr Widjaja to which I have referred above, it is clear that no aspect of his reports provide any assistance to the plaintiff in this proceeding.
95 On 18 September 2015 the plaintiff was examined by Dr David Middleton, an occupational health and rehabilitation consultant. In his report Dr Middleton describes the mechanism of the plaintiff’s injury as follows:
Mr Kuloba states the laceration to his right elbow and upper arm was in fact done by another worker from behind who was operating an electric saw which Mr Kuloba stated ended up severing Mr Kuloba’s tricep tendon and brachial artery and injuring the right rotator cuff where he developed impingement.”
96 On examination Dr Middleton describes Mr Kuloba as presenting nursing his right arm and with:
· a very mild restriction of supination and pronation in the right elbow compared to the left; and
· a significant impairment of movement of the right shoulder compared with the left.
97 Dr Middleton opines that the plaintiff suffered a laceration to his right elbow with the development of chronic pain syndrome and a right rotator cuff syndrome involving “partial thickness tear of the supra spanatus, subacromial bursitis and impingement”.
98 In expressing that opinion, Dr Middleton provides no explanation which justifies his statement:
· that the plaintiff presents with an injury to his right elbow which is influenced by the presence of a chronic pain syndrome. I am satisfied for this reason this opinion should not be accorded any weight.
· that the injuries of the plaintiff’s right shoulder are related to heavy and awkward work undertaken by the plaintiff as a labourer. I am satisfied, given the absence of any explanation as to the relationship between that work and the timing of the onset of symptoms in the shoulder, that this opinion should not be accorded any weight.
99 For these reasons I am satisfied the opinion of Dr Middleton of these issues is bereft of analysis and therefore is lacking in persuasion.
100 I note that in his subsequent report dated 8 May 2018, Dr Middleton:
· obtained a history from the plaintiff that upon his return to work he had great difficulty coping with full duties which involved heavy, forceful and repetitive work, the consequences of which were to cause a partial thickness tear of the supraspinatus tendon; and
· opined “that the accident in 2008 was a single incident impacting upon the right elbow only and that the remaining injuries and conditions have been contributed to by that injury together with the heavy, forceful and repetitive nature of his normal duties complicated by the accident and injury to his right elbow in 2008.”
101 In expressing that opinion, Dr Middleton did so in the context of the history that the plaintiff continued to perform full duties until the middle of 2009 when “because of persisting pain, pins and needles and tingling in the right arm [he] was not able to continue with that type of work or any manual work…”
102 That opinion is again based upon either a misunderstanding or a misstatement of the relevant factual chronology and for that reason lacks any persuasion.
103 Mr Michael Shannon, a general surgeon, examined the plaintiff on behalf of the defendants on 20 April 2016. The plaintiff provided Mr Shannon with the history that he had suffered:
· a lacerating injury to his elbow; and
· an injury to his shoulder because of repetitive lifting and overhead activity, which injury manifested itself in the week after he resumed normal duties (which history attests to the unreliability of the plaintiff as a historian).
104 On examination, Mr Shannon detected a normal range of elbow movement but failed to comment upon the range of movement in the plaintiff’s right shoulder. Having examined the medical records with which he was provided which included those of the Millennium Clinic and the Joslin Clinic, Mr Shannon opined that:
· he could find no evidence of significant pathology in the plaintiff’s right shoulder which was associated with any activity occurring at or around the time of the plaintiff’s elbow injury;
· notwithstanding his complaints of pain in the elbow and forearm, the plaintiff presented with a normal range of movement despite the presence of persisting mild swelling;
· rotator cuff degeneration can be caused or aggravated by heavy lifting and overhead activity, however, there was no clear incidence that the plaintiff developed symptoms in his right shoulder until some years after he ceased employment with the defendant.
105 Dr Bruce Low, an orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 16 March 2018. The history given by the plaintiff to Dr Low as to the development of his injuries was as follows:
· he suffered a lacerating injury on 9 October 2008 as a result of which he developed elbow pain and pain in his right hand, weakness of grip and pins and needles;
· he returned to work but was then terminated on 1 March 2009;
· after his elbow injury he developed the pain shoulder pain and arm pain which came on after the injury to his right elbow.
106 Dr Low opined:
· that the elbow injury could be more serious than first thought and may have involved minor infection after a penetrating injury. He was mildly critical of the management of that injury noting that it was just stitched and that the plaintiff was not sent to a public hospital to undergo an arthroscopy and wash out with the administration of intravenous antibiotics.
· As to the plaintiff’s right shoulder Dr Lowe described his condition as well-known involving a sub acromial decompression and commented that this condition in combination with cervical C4 radiculopathy could result in global arm pain.
107 Dr Low:
· described the elbow injury as a severe injury involving ongoing symptoms which was definitely work related;
· opined that the shoulder injury was not work-related;
· opined that the plaintiff had no current work capacity by reason of the disability with which he presents in his right shoulder and elbow;
· comments that the whole of the plaintiff’s right arm symptom complex could not be “sheeted down completely to his elbow injury” and that the totality of his incapacity for work was not entirely due to that injury.
108 Dr Low concluded his report with the following comments:
“the totality of his problems in the neck shoulder elbow and perhaps carpal tunnel responsible for total right arm dysfunction he has no ability to work at this moment I think his prognosis is poor I do believe this will be ongoing”.
109 Given that the analysis of Dr Low as to the plaintiff’s disability involves an aggregation of the various conditions with which the plaintiff suffers in his right arm, including his elbow injury and his shoulder injury, I am not satisfied that his opinion in any way assists me in my task which involves assessing the consequences to the plaintiff of the injury, which I am satisfied arose in the course of his employment, namely that to his right elbow.
110 At the referral of the plaintiff’s solicitors Dr Joseph Slesenger a specialist occupational physician, examined the plaintiff on 5 June 2018, at which time the plaintiff presented with a considerable degree of restriction of movement in his right elbow but no tenderness upon palpation.
111 Dr Slesenger opined:
· that there was a psychogenic element to the plaintiff’s presentation in that he presented with some non-organic features on the valuation;
· that whilst the plaintiff’s symptoms in his right elbow could be due to a chronic pain disorder associated with the original injury, he was of the opinion that the plaintiff’s right elbow symptoms were a minor contributing factor to his overall impairment;
· that he was unable to draw causal link between the plaintiff’s:
(i) right elbow injury and his right shoulder impairment; or
(ii) occupational exposures and his right shoulder impairment.
112 Whilst Dr Slesenger recognised what he described as the plaintiff’s general job demands as being potential causal factors to his shoulder impairment he expressed concern with the lack of reference to ongoing impairment in the contemporaneous records.
113 I do not interpret the above opinion expressed by Dr Slesenger to be an opinion supporting, on the balance of probabilities, the relationship between the plaintiff’s physical work and the onset of his shoulder injuries, the primary reason for the lack of support being the absence of contemporaneous complaints or medical evidence as to the presence of symptoms in the right shoulder.
114 It is clear that this most recent medical assessment of the plaintiff provides no support for the plaintiff’s contention that he presents with a right elbow injury which gives rise to serious consequences as defined by the Act or a compensable right shoulder injury.
Findings
Has the plaintiff established the extent and significance of any compensable psychiatric injury with which he presents?
115 Dr Wesphal in her report of 6 December 2011 described the plaintiff as managing high levels of stress and anxiety and a mild depressive condition.
116 In my opinion:
(i) there is no probative evidence to suggest that the condition described above has progressed in any significant sense;
(ii) there is a total absence of any evidence given by the plaintiff or by any relevantly qualified doctor which could support a finding that the plaintiff presents with a psychiatric illness sufficient to meet the definition of “severe” as that term is employed by the provisions of the Accident Compensation Act (“The Act”).
Has the plaintiff established the causal relationship between either his work duties generally or the traumatic incident of the 9 October 2008 and the condition with which he presents in his shoulder?
117 In considering the issue as to whether the plaintiff has established causation with respect to his shoulder injury, taking into account the totality of the evidence, I give appropriate weight to a number of critical factors, namely:
(i) the plaintiff’s employment history which included heavy manual labour of the type he was undertaking in the course of his employment with the defendant;
(ii) the timing of the onset of symptoms in the plaintiff’s right shoulder; and
(iii) whether it is likely that the plaintiff, prior to sustaining his injury on 9 October 2008, presented with a pre-existing asymptomatic condition in his left shoulder.
118 As to these three factors I am satisfied that the nature of the plaintiff’s employment was such that an injury/condition of the type sustained by the plaintiff to his right shoulder could well be caused by that employment. This position is supported by a number of the doctors who have opined in this case.
119 As to whether the plaintiff presented with a pre-existing asymptomatic degenerative condition in his shoulder Mr Deacon has expressed an opinion in support of that fact. That opinion is supported by the diagnosis the plaintiff presents with osteoarthritis of the right shoulder. Given the plaintiff’s history of engaging in heavy physical work, I accept the opinion as to the presence of that condition expressed by Mr Deacon.
120 As to the timing of the onset of the plaintiff’s symptoms, it is the plaintiff’s evidence that he first experienced symptoms which extended between his elbow and shoulder in about July 2009, which I am satisfied was approximately six months after the plaintiff ceased employment with the defendant.
121 Given my satisfaction that the plaintiff presented with a degenerative condition in his shoulder at the time, the presence of which I am satisfied on the balance of probabilities predisposes the plaintiff to suffering a condition at the time he was eventually diagnosed in his right shoulder, I am satisfied that:
(i) a coincidence in the timing between the onset of symptoms in the plaintiff’s right shoulder in the performance of the duties he was required to undertake in the course of his employment with the defendant suggests a relationship between those symptoms and that employment; and
(ii) the absence of such a coincidence in timing of the type which arises in this instance, namely delay in the onset of symptoms by six months, speaks against the likelihood of an association between the plaintiff’s work process and the condition he developed in his right shoulder. In this respect the medical opinion of Dr Low makes it clear that trauma is not a necessary factor in causing the pathology which was present in the plaintiff’s right shoulder.[5]
[5]See Dr Low’s comment on page 9 of his report that there was no relationship between the injury sustained to the plaintiff's right elbow and the condition in the plaintiff shoulder and that the latter just happened to become symptomatic at the same time.
122 Further, the diagnosis of the pathology in the plaintiff’s shoulder which required surgical treatment was made in 2012. By that time there is no issue that the plaintiff had been the victim of a number of violent assaults, one of which clearly involved the plaintiff sustaining an injury to his right lower limb in respect of which he presented for treatment to the Western Hospital in September 2010 to which I previously referred, the trauma associated with which may well have been responsible for the condition in respect of which the plaintiff underwent surgery on his right shoulder.
123 The primary difficulty which arises in determining the causation issue in this case involves the fact that other than the medical evidence generated by the Millennium Clinic which is unclear as to whether the plaintiff was presenting with any symptoms in his right shoulder in 2009, the medical evidence relevant to the management of the plaintiff’s treatment for his right shoulder commences some 3 years after the subject injury.
124 In those circumstances, in the absence of any evidence which involved trauma to the shoulder in association with a traumatic injury to the plaintiff’s right elbow, given the plaintiff’s evidence that he first commenced to experience symptoms in his arm (which did not involve symptoms extending between his elbow and his hand) in approximately July 2009, I am not satisfied that there is any probative evidence which establishes that the plaintiff presents with a compensable condition in his right shoulder.
125 Insofar as there is any expression of opinion by medical practitioners in support of the relationship between the condition in the plaintiff’s right shoulder and either:
(i) the traumatic incident of 9 October 2008; or
(ii) the heavy nature of the plaintiff’s duties in employment with the defendant;
I am not satisfied that there is any probative value in any such opinion, given the inaccurate history provided by the plaintiff as to the temporal relationship between the onset of his symptoms of shoulder pain and his employment with the defendant to each doctor who has expressed such an opinion.
126 Evidence supporting the plaintiff’s position on this issue is contained in the reports of Dr Blombery, Dr Brearley and Dr Middleton.
127 In my opinion the basis of the opinions of each of those doctors on this issue should be accorded no weight, given the history upon which each opinion was based as set out below:
· Dr Blombery expressed his opinion on the basis that the symptoms in the plaintiff’s shoulder were responsible for him stopping work. There is no basis for that evidence in that the plaintiff’s symptoms in his right shoulder manifested themselves approximately 6-7 months after the plaintiff last worked for the defendant;
· Dr Brearley expressed his opinion in the absence of any knowledge as to the timing between the onset of the plaintiff’s symptoms in his shoulder and the cessation of his employment with the defendant;
· Dr Middleton obtained a history that the plaintiff was having problems described by the plaintiff as involving the fact “the right upper arm and shoulder were not strong and would get stuck” before he ceased employment with the defendant.
128 As to the opinion expressed by Mr Deacon on this issue, there is no necessity for me to repeat my previous comments as to that opinion.
129 The plaintiff points to the presence of pathology in his right shoulder as providing evidence upon the issue of causation. In my opinion the presence of well advanced pathology in the plaintiff’s right shoulder which pre-existed the October 2008 incident operates to provide an independent explanation for the MRI findings which resulted in the plaintiff’s right shoulder surgery, namely that the surgery arose by reason of a deterioration in that condition which occurred after the plaintiff ceased employment with the defendant and which may have been associated with one or other of the incidents of assault or violence in which the plaintiff has been involved.
130 In my opinion the analysis and statement by Dr Slesenger as to the evidence available upon the issue as to whether the plaintiff’s right shoulder injury should be categorised as being caused by his employment represents a balanced assessment which accords with my analysis of the evidence on the issue and I find that opinion to be persuasive.
131 For the reasons set out above, I am satisfied that the only compensable injury to which I should have regard in assessing the plaintiff’s entitlement to the leave which he seeks in this instance is that involving the traumatic injury to the plaintiff’s elbow.
Has the plaintiff established that the consequences of the traumatic injury sustained by him to his right elbow of 9 October 2008, as they operate so as to affect him today, are such as to entitle him to the leave which he seeks in this application?
132 In my opinion the absence of any record at the Millennium Clinic of a complaint by the plaintiff of the presence of symptoms in his right elbow in the course of the numerous attendances by the plaintiff at the clinic during the period between July 2009 and December 2011 tends to suggest that the plaintiff had largely recovered from the effects of that injury.
133 Further, the discrepancy between the plaintiff’s evidence as to the continuing presence of symptoms of pain and restriction of movement in his elbow at the times at which he presented to and was examined by:
(i) Mr Roth in January 2012;
(ii) Ms Graham in July 2012;
(iii) Dr Wells in October 2012:
(iv) Dr Fish in September 2012;
(v) Dr Brearley in August 2013
(vi) Dr Blombery in January 2013 and again in April 2016;
(vii) Mr Deacon in January 2013;
(viii) Dr Middleton in September 2015 and May 2018;
in the course of which each examiner recorded the presence of pain free movement in the plaintiff’s elbow, and in addition the presence of a virtually unrestricted range of movement in the elbow:
· calls into question the reliability of the plaintiff as an historian; and
· suggests that the plaintiff had, by that time, made a full recovery from any condition in his right elbow which may have arisen by reason of the compensable injury he sustained in October 2008.
134 Further, the discrepancy between the plaintiff’s presentation to each of the doctors listed above when considered in the context of the discrepancy of the plaintiff’s presentation:
· to Dr Low on 16 March 2018, who recorded a history of the presence of:
(i) such tenderness in his elbow that the plaintiff would not let Dr Low examine his elbow; and
(ii) a grip strength on the right of 9.6 kg and on the left of 38kg.
· to Dr Middleton some three months later at which time Dr Middleton:
(i) recorded the presence of grip strength in the plaintiff’s right hand varying between 20 kg and 28 kg; and
(ii) expressed no reluctance by the plaintiff in allowing a clinical assessment of his right elbow which involved palpation;
demonstrates a significant inconsistency in presentation in the course of examinations undertaken at a relatively similar time and supports my previous statements as to the lack of the reliability and objectivity in the plaintiff’s evidence as to the effect of the objective symptoms and impairment with which he presents in his right elbow and hand.
135 While in the course of his evidence the plaintiff sought to explain the discrepancy between his description of continued incapacitating symptoms in his right elbow which restricted his ability to move his elbow without pain on the basis that:
(i) on some occasions the movement was introduced by hands-on manipulation by the assessor; and
(ii) on other occasions the plaintiff undertook the movement notwithstanding the pain associated with it in compliance with the request of the assessor;
the plaintiff made it quite clear that the pain associated with the movements would have caused him to grimace and/or wince. Given the fact that identical findings were made as to the range of painless movement present in the plaintiff’s right elbow by such a significant number of medical practitioners I find it to be extremely unlikely that all those practitioners would fail to notice the presence of discomfort by the plaintiff in the course of their assessments. For that reason I do not accept the evidence of the plaintiff on this issue.
136 Further, when account is taken of:
(i) the plaintiff’s evidence that there has been a consistency in the symptoms and disability from which he suffers in his right elbow from the date upon which he injured his elbow;
(ii) the fact that the plaintiff was able to undertake unrestricted duties in the course of employment with the defendant in late 2008 which duties involved strenuous bimanual activity; and
(iii) the disability which the plaintiff demonstrated in the course of the trial in his ability to move and use his elbow;
it seems to me that there is a complete disconnect between the plaintiff’s tolerance for activity upon returning to unrestricted duties in 2008 and that with which he now presents, for which there is no explanation.
137 Whilst in his affidavit evidence the plaintiff has described the significant losses suffered by him in association with the condition with which he presents in his elbow, I am not satisfied, given the comments which I have made as to the lack of reliability by the plaintiff as a historian, that I am able to fix with any degree of precision the impact (if any) which the physical injury which the plaintiff suffered to his elbow in 2008 has upon the plaintiff in his day-to-day life at the present time.
138 Further, even if I were to be satisfied that there was a combination of probative medical evidence and reliable evidence given by the plaintiff which supports the plaintiff’s case that he presents with an injury to his right elbow which operates to affect the plaintiff’s ability to use his right upper limb, given the plaintiff’s presentation with a comorbidity associated with the injury to his right shoulder, I am not satisfied that there is any probative evidence, medical or otherwise, which allows me to quantify the separate influence which each of those injuries have upon the plaintiff.
139 For the reasons set out above, given:
(i) the plaintiff’s lack of reliability and objectivity as an historian;
(ii) the discrepancy between the plaintiff’s capacity for movement and activity demonstrated in the course of the medical examinations which took place up to 4 years after the date upon which plaintiff suffered his injury;
(iii) the multifactorial nature of his presentation as described in the sympathetic and astute opinion expressed by Dr Lowe in his report dated 16 March 2018 ;
(iv) my obligation to assess, as at the present time, the discrete consequences to the plaintiff of the compensable injury which he suffered to his right elbow in 2008, for the purposes of determining whether those consequences have an impact at this time upon the plaintiff’s pain and suffering and loss of enjoyment of life or his earning capacity which meet the threshold established by the Act;
I am not satisfied that the plaintiff has established on the balance of probabilities the consequences to his lifestyle and employment capacity for which the injury he sustained to his right elbow on 9 October 2008 is currently responsible, and in particular whether those consequences:
a) in so far as they involve pain and suffering are appropriately described as being more than significant or marked and as being as at least very considerable;
b) in so far as they involve pecuniary loss, meet the statutory threshold established by the Act.
140 For the reasons set out above, I am satisfied that the plaintiff is not entitled to the leave which he seeks in this instance and that an order should be made that the plaintiff’s application be dismissed.
141 I will hear the defendant upon the issue of costs.
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