Macrostie v Westside Meats Pty Ltd

[2010] VCC 787

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-08-05570

DAVID MACROSTIE	Plaintiff
v
WESTSIDE MEATS PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2010
DATE OF JUDGMENT:	10 June 2010
CASE MAY BE CITED AS:	Macrostie v Westside Meats Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0787

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left shoulder – pain and suffering only – whether consequences to the plaintiff are serious.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Moore QC and	Clark Toop & Taylor
Mr A Ingram
For the Defendant	Mr B McKenzie	Herbert Geer
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 31 January 2000 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

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

4          The impairment of body function relied upon in this case is the left shoulder.

5          The impairment must have consequences in relation to pain and suffering which, when judged with other cases in the range of possible impairments may be fairly described at the date of hearing as being at least very considerable and more than significant or marked.

6          The plaintiff relied upon three affidavits and he was cross-examined. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

7          The plaintiff is aged forty three, having been born on 12 October 1966 in Tasmania. He presently lives in Port Melbourne with his thirteen year old daughter.

8          The plaintiff completed school to Year 10 and thereafter worked as a labourer, and at times as a self-employed truck driver in Tasmania.

9          The plaintiff commenced employment with the defendant at Bacchus Marsh in late 1999-2000. He worked as a driver and meat lumper, delivering meat from the defendant’s abattoir into Melbourne. He earned approximately $600 per week.

10        Prior to this employment, the plaintiff had not suffered any shoulder injury.

11        On the said date, whilst working loading trucks, the plaintiff was pushing four quarters of beef, weighing in excess of 200 kilograms, along the rail and into the truck with his left hand when the rail disconnected and collapsed. The plaintiff’s left shoulder was forcefully dragged backwards and the rail came down on his head, cutting it (“the incident”).

12        After the incident, the plaintiff was momentarily stunned. In cross- examination, the plaintiff denied the history recorded by a number of medical examiners that he had lost consciousness in the incident.

13        In the following hours, the plaintiff realised he was suffering increasingly severe pain in his left shoulder and he attended The Royal Melbourne Hospital (“the Hospital”). X-rays were taken, the plaintiff was examined and he was advised that he had fractured his left scapula. His arm was put in a sling and he was given pain-relieving medication and sent home.

14        After the said date, the plaintiff attended the Hospital on a number of occasions, receiving conservative treatment. Eventually, he was referred to a physiotherapist, Roger Moore, who treated him for a period of about two weeks, with some limited benefit.

15        The plaintiff attended the Neurology Clinic at the Hospital and underwent nerve conduction studies on 2 April 2000. By that stage, the plaintiff had been referred for case management to Kinahan Chen, where he was seen by Jan Mannix to assist him in his return to work.

16        Subsequently, a return to work was arranged with the defendant and the plaintiff undertook light duties, sitting at a desk putting rubber bands through small tags. The plaintiff described this job as really a sheltered workshop position. After two weeks the defendant informed Jan Mannix there was no further work for the plaintiff to do.

17        In cross-examination, the plaintiff denied that he refused to continue light duties after two weeks. He also denied that he was being threatened by “heavies” to whom he owed money.

18        Jan Mannix organised for the plaintiff to see Dr Jelbart at the Town Medical Centre (“the Medical Centre”) on 19 June 2000, at which time the plaintiff was taking Panadeine Forte and Voltaren. Dr Jelbart started the plaintiff on an exercise program because of his limited range of movement and the plaintiff continued to attend the Medical Centre and saw a number of different doctors there through until early 2005.

19        Dr Jelbart referred the plaintiff to orthopaedic surgeons, Mr Dalziel, and subsequently, to Mr McQueen. After seeing Mr Dalziel on one occasion, Mr McQueen took over the plaintiff’s treatment and arranged for him to attend The Avenue Hospital for a hydrodilatation procedure (“the procedure”). He also arranged for the plaintiff to undergo an ultrasound.

20        The procedure was of limited assistance and there was no lasting improvement in the plaintiff’s shoulder function. It remained painful and his range of movement remained restricted.

21        In his third affidavit, the plaintiff deposed that having injured his shoulder he was in real trouble trying to get any work. In approximately 2001 or 2002, he saw a newspaper advertisement in which Mayne Nickless advertised for drivers to work on delivery runs in the suburban area.

22        The plaintiff contacted Mayne Nickless and proposed he could supply drivers with trucks to do delivery runs. The plaintiff initially provided five drivers with trucks and it was agreed he would be paid $1,250.00 a driver per run on each day of the week. The plaintiff then increased his workload and earnings in that regard. He did the paperwork, organising the drivers, and he drove if a driver was unavailable.

23        With time, Mayne Nickless increased the number of runs the plaintiff was to co-ordinate and manage. The plaintiff built up the operation to twenty plus drivers on twenty plus runs for each day in the week. By that stage however, the plaintiff was financially “chasing his tail” and was increasingly falling into debt.

24        As Mayne Nickless was pleased with the upshot of the delivery runs, it sold its transport business to Toll Holdings. Not long after that sale, Toll Holdings slowed down the rate at which payments were being made to the plaintiff to pay his drivers. The plaintiff’s drivers were unhappy because they were not being paid and Toll Holdings ended up employing them directly.

25        The plaintiff was distraught about this situation, became depressed and disinterested and he ignored audit and accountancy calls, as well as warnings from the Taxation Office.

26        The plaintiff was then assessed as having income levels in the range of $1 million plus. He was taxed accordingly, sued and then made bankrupt. He entered into bankruptcy in approximately March 2005 and was discharged in March 2008. Because of his financial problems, the plaintiff was also forced to sell two houses he owned.

27        In cross-examination, the plaintiff confirmed he was devastated at the financial problems he found himself in associated with the Mayne Nickless job.

28        The plaintiff was cross-examined extensively about details of his earnings which were included in his Form A application.

29        In the 1997-1998 financial year, it was noted the plaintiff’s income was $771,000. He explained that this was the total turnover of his driving business at that time, not profit.

30        In 1998-1999, the plaintiff made a profit of $87,021 and in the following year, $98,000 profit.

31        Earnings of $7,754 shown in the 2000-2001 financial year were with the defendant.

32        The following year involved the Mayne Nickless work, initially under the company name Pan Tuck Pty Ltd, a name the plaintiff had borrowed from a friend so that he could obtain that work.

33        Whilst his turnover in the next couple of years in this role exceeded $1 million, the plaintiff’s profit was not substantial.

34        In the financial year 2001-2002, he made a profit of 10,254 and in 2002-2003, his profit was $7,777. There were no figures available for 2003-2004. In 2004-2005, the plaintiff’s only income was $8,316 in DSS payments. In that year the plaintiff went bankrupt.

35        In 2005-2006, the plaintiff received DSS payments of $9,708. In the following year, 2006-2007, the plaintiff received DSS payments totalling $11,841. In 2007-2008, he received DSS payments of $11,230, together with income of $5,899.

36        The plaintiff explained this income was with a labour hire company at Tullamarine known as Labour Force. The plaintiff did not mention any problem with his shoulder when the plaintiff commenced this job.

37        The plaintiff agreed that he had not made any mention of that employment in his affidavits. He explained that he left that firm following a dispute about his wages. He had not listed that firm as an employer in his affidavit as he did not want enquiries made as to the circumstances in which he left that job.

38        The Labour Force work involved delivering newspapers and magazines in shrink wrapped bundles weighing about four to five kilograms by rigid truck to newsagents.

39        The plaintiff unloaded the packages of magazines out of the back of the truck from waist height and carried them with two hands into the newsagency. He spent twenty per cent of the day engaged in that task and the balance of the day doing pallet work. On occasion he had to lift the gates which were at the back of the truck, which weighed eight to ten kilograms, to access the load.

40        The plaintiff worked with Labour Force for three months until June 2008. He then left that job to go to Tasmania to live with his parents.

41        In cross-examination, the plaintiff agreed he did not stop working with Labour Force because of his shoulder condition. He worked full time in that job, ten to twelve hours a day. He did overtime when it was available and he could work twenty hours a day if there was work available. He agreed he was capable of doing the job.

42        The plaintiff returned to work in August 2008, driving trucks for SRT Logistics in Launceston. In cross-examination, the plaintiff agreed that when he applied for this job, he denied having had a previous shoulder injury.

43        Also, in his résumé which he provided to SRT, the plaintiff set out that he was fit and healthy, denying having had any previous injury, because he wanted to get the job. Further, the plaintiff agreed that he described work history which was not in fact correct.

44        The plaintiff worked in this job for four months until he dislocated his left shoulder in January 2009 when he fell forward onto a wall, hitting his left arm, popping his shoulder out (“the dislocation”). He received treatment at the Launceston Hospital and then had three months off work.

45        The plaintiff returned to work on light duties, driving a smaller van with another person and only delivering lighter things, such as bread and food to shops and restaurants. He ultimately returned to normal full time duties, which he carried out until June 2009.

46        Whilst working for SRT, the plaintiff did substantial overtime both before and after the dislocation. He confirmed the contents of Joanne Tyre’s affidavit in this regard.

47        The plaintiff agreed that he worked on average 64.28 hours per week up until the dislocation. There was a lot of manual handling with delivering all day. The plaintiff was required to manually unload frozen and chilled foods weighing up to ten kilograms and convey them manually to the shop/restaurant for about three to eight hours a day and the balance of the day was spent doing pallet work. On average, the plaintiff delivered goods to about twenty five locations over ten to twelve hours.

48        In the last week the plaintiff worked at SRT, namely the week ending 23 June 2009, he worked 75.25 hours. In the preceding weeks, he worked about seventy hours a week.

49        In cross-examination, the plaintiff said he stopped working with SRT as it was “not fair” on that employer as he was worried his shoulder would give way whilst working for them. One of the reasons he stopped this job was because “it was not really very suitable for him.”

50        The plaintiff denied he told medico-legal examiner, Mr Jones, that he left this job because he wanted a change and he was tired of life in Tasmania. He said such a proposition was “rubbish” as he would rather stay in Tasmania with his family and children.

51        The plaintiff deposed that in recent times he has been able to get his life back in order. Since September 2009 he has done contract delivery work, using a truck he rents. He only does light work which involves pallet lifters and pallets in the main – pallets of anything from CUB or Heinz products for supermarkets. The plaintiff is presently managing about sixty hours a week and works on call, mostly Monday to Friday.

52        In examination-in-chief, the plaintiff said he did not think he would be able to keep going with this job. He does not have a plan for the future and thinks that eventually he will hurt his shoulder again.

53        At the end of a standard day at work the plaintiff’s shoulder is sore. On a bad day he feels like he has “been hit by an AFL footballer”. He has to take Panadol and lie down and sometimes those bouts of pain last for a day or two.

54        In cross-examination, the plaintiff agreed that no doctor had told him not to do his current job. The plaintiff has worked such long hours to avoid a return to the financial stress of previous years. He has to support his fourteen year old daughter and he does not want to return to his old lifestyle where he was living in a boarding house.

55        The last time the plaintiff attended a general practitioner in relation to his left shoulder was in 2007, when he saw Dr Weiss at the Bridge Street Clinic in Port Melbourne. The plaintiff stopped seeing Dr Weiss because he could not afford to pay the bills. The plaintiff is not presently seeing any doctors because he cannot afford to see them. He pays for his medication out of his own pocket.

56        The plaintiff’s only medication at the present time is Panadol but he tries not to take it. He had previously taken Nurofen. On average the plaintiff takes Panadol one day a week, and on a bad day he takes up to eight tablets in a day. It provides only limited relief from his symptoms.

57        The plaintiff agreed that he had discomfort and tightness in his shoulder which increased with overuse as he described to Mr Jones. The pain was always there and it was “bearable mostly”.

58        The plaintiff’s level of symptoms is variable and his shoulder becomes inflamed if he overuses it. He tries to manage. The pain is in the back of his left shoulder. The plaintiff feels pressure in the top of his left shoulder like a knee is pressing on it. There is a sense of instability, mainly if he tries to engage in over shoulder activity or if he grabs something off the floor.

59        In cross-examination, the plaintiff agreed that below shoulder movement is fairly normal but movement is bad above the shoulder or when he uses his left arm outwards and upwards. He now does much more with his right hand. His shoulder locks up when he is asleep or when he is changing gears in the truck. It feels like a cramp. The plaintiff described such episodes as lasting for two minutes or eight minutes. He denied they were of a short duration, of thirty seconds or so as reported by Mr Jones.

60        The plaintiff’s sleep continues to be affected by pain. He goes to bed at 11.00 pm and gets up at 4.00 am to go to work. If he rolls onto his shoulder during the night he wakes with a stiff shoulder. It then takes him five to ten minutes to get going in the morning.

The Plaintiff’s Medical Evidence

61        On the said date following the incident, the plaintiff attended the Emergency Department at the Hospital.

62        On examination, the plaintiff described pain around the medial side of the scapula and along the superior margin of the scapula on the left side. The shoulder was not painful. The plaintiff had a decreased range of movement in all directions because of pain. Movement of his shoulder was restricted because of pain and x-rays revealed a fracture of the inferior pole of the scapula. It was noted the plaintiff did not lose consciousness in the incident.

63        Analgesia was recommended, together with a broad-arm sling. The plaintiff was referred to the Fracture Clinic, where he was seen on 7 February 2000 when conservative treatment was continued.

64        On examination on 28 February 2000, there was swelling over the medial aspect of the scapula associated with tenderness and a decreased range of movement. Physiotherapy was suggested.

65        On 21 March 2000, the plaintiff complained of a lot of pain over the medial border of the clavicle and the possibility of suprascapular nerve palsy was raised.

66        On 2 April 2000, nerve conduction studies were reported as normal. The plaintiff was still in pain and had a decreased range of movement, and it was suggested physiotherapy be increased.

67        On 18 May 2000, it was noted the plaintiff was improving slowly. He continued to complain of tenderness along the medial border of the scapula and there was restricted shoulder movement. An x-ray of the scapula was satisfactory. Further physiotherapy was recommended and the plaintiff was encouraged to swim.

68        Physiotherapist, Roger Moore, saw the plaintiff on referral from the Hospital on 9 March 2000. The plaintiff attended over a two-week period for local treatment of his left shoulder. On 21 March 2000, the plaintiff was seen for the last time and given a note to attend the Neurology Clinic.

69        The plaintiff was referred by his case manager Ms Mannix to Dr Jelbart at the Medical Centre, whom he attended from 19 June 2000 to 10 April 2003.

70        When first seen by Dr Jelbart, the plaintiff was taking Panadeine Forte and Voltaren. The plaintiff had very limited natural and spontaneous movement of his left arm.

71        Dr Jelbart started the plaintiff on a graduated exercise plan, focussing on increasing his range of movement. It was noted the plaintiff made steady but slow progress and his shoulder strength and range of shoulder movement gradually increased.

72        Dr Jelbart saw the plaintiff on 10 July 2001 when the plaintiff noted his arm was nearly back to normal with respect to range of movement. Dr Jelbart commented that the plaintiff had very little strength in the arm, especially with movements overhead.

73        On examination on 11 November 2002, Dr Jelbart noted there was a further degree of improvement but the plaintiff still had no strength above his head and his shoulder tended to give way. There was also a feeling of tightness at the base of his neck on the left side. The plaintiff at that stage was referred to Mr Dalziel.

74        On 3 February 2003, Dr Jelbart noted the worsening of the plaintiff’s continually aching shoulder, and on 10 April 2003, he referred the plaintiff to Mr McQueen, who planned hydrodilatation and ultrasound.

75        On 27 October 2004, the plaintiff saw Dr Barrow at the Medical Centre who thought his condition appeared permanent and that the plaintiff would not be likely to be physically able to resume his former duties. He referred the plaintiff to Centrelink for vocational guidance and retraining.

76        Dr Bui saw the plaintiff at the Medical Centre on 18 November 2004 and 9 January 2005 to renew the plaintiff’s Centrelink certificates. At that time the plaintiff was still experiencing left-sided neck and shoulder pain and stiffness, and limited shoulder activity.

77        The plaintiff was initially seen by Mr Dalziel in January 2003 but then came under the care of Mr McQueen on 15 March 2003.

78        The plaintiff complained to Mr McQueen of ongoing pain and stiffness, particularly nocturnal pain following the incident. On examination, there was reduction of left shoulder movement and generalised tenderness over the rotator cuff.

79        Mr McQueen arranged hydrodilatation (“the procedure”) as well as an ultrasound assessment of the plaintiff’s rotator cuff. Mr McQueen noted the ultrasound showed the rotator cuff to be intact. There was mild bursal thickening with mild impingement on abduction, as well as forward flexion. The biceps tendon was normal and there was no glenohumeral or bursal fluid. The acromioclavicular joint was unremarkable. There was mild limitation of movement with a painful endpoint. There was mild improvement following the procedure.

80        Following this examination, the plaintiff did not return for review either by Mr McQueen or Mr Dalziel.

81        The plaintiff attended the Bridge Street Clinic from June 2005 to November 2007. The plaintiff saw Dr Weiss at the Clinic 7 August 2007 and on 8 October 2007, requesting Centrelink forms be completed.

82        Dr Weiss had no idea what injuries the plaintiff sustained in the incident, as the plaintiff had not been treated at that Clinic in that regard.

83        Dr Weiss certified that the plaintiff was suffering from chronic pain from torn left scapula and neck muscles. He felt the plaintiff was depressed, probably as a result of Chronic Pain Syndrome, and commenced him on Tramadol and Cipramil.

84        In November 2007, the plaintiff advised Dr Weiss that he had a limp and almost had a shorter left leg, and that he would like to see a specialist. Dr Weiss noted that the plaintiff had a scoliosis and a shorter left leg, with wasting in the left calf and thigh. He referred the plaintiff for orthopaedic opinion to the Alfred Hospital.

85        This was the last reported attendance with a general practitioner.

86        Mr Kenneth Brearley, orthopaedic surgeon, first examined the plaintiff for medico-legal purposes on 14 May 2003.

87        The plaintiff told Mr Brearley that he had started work with Pan Tuck Pty Ltd, a transport company, in about October 2006 after he had ceased work with the defendant. The plaintiff was then working about twenty hours a week in a casual capacity doing clerical duties.

88        Mr Brearley noted the plaintiff had continued to have serious problems with his left shoulder which remained stiff and painful. The plaintiff was able to use his arm almost normally below shoulder level but beyond that he was unable to do any work at all because of his pain.

89        At that stage, the plaintiff was taking Panadol and Panadeine Forte as required, which was usually two or three times a day. The plaintiff told Mr Brearley that he was unable to play cricket, tennis, golf or squash, as he had done before the incident.

90        On examination of the left shoulder, there was no deformity and no obvious wasting. There was some tenderness over the back of the shoulder and over the base of the neck on the left side. There was restriction of left shoulder movement and the remainder of the left arm was normal.

91        Mr Brearley diagnosed an injury of the left shoulder with a fracture of the inferior pole of the scapula and probable development of subacromial bursitis of the left shoulder.

92        He noted the plaintiff had marked stiffness of his shoulder and the probability was that he had developed a problem at the level of the rotator cuff, namely an adhesive capsulitis or chronic subacromial bursitis. At that stage the plaintiff had not had an ultrasound.

93        Mr Brearley noted physiotherapy and exercises seemed to be making no impression on the marked stiffness of the plaintiff’s shoulder which was markedly disabling him at that time. At that stage, the plaintiff was unable to do any significant lifting or repetitive use of his arm, and he was obliged to seek permanently lighter work for he was no longer able to handle any labouring or manual type work at all.

94        Mr Brearley thought the plaintiff was fit for light sedentary work only and noted he was currently doing office work. He thought the plaintiff needed ongoing treatment in the way of physiotherapy and hydrotherapy in order to improve his possible range of shoulder movements. Mr Brearley did not think the plaintiff’s condition had stabilised.

95        Mr Brearley re-examined the plaintiff in November 2004. At that time the plaintiff was having no treatment nor was he taking any analgesics or other medication. The plaintiff told Mr Brearley that he had not returned to any form of work but said he was perfectly capable of doing many types of work but not the heavy type of manual labour he had been doing before the incident, including meat lumping and truck driving.

96        The plaintiff told Mr Brearley that he had not actually looked for work or applied for a job, because he was waiting for his case to be settled.

97        On examination, again there was no obvious wasting or deformity. Some tenderness persisted over the back of the shoulder and there was some restricted movement.

98        Mr Brearley noted there had been a definite improvement in the plaintiff’s condition since the first examination. The plaintiff no longer had the pain and discomfort he was having eighteen months earlier. He was no longer taking Panadeine Forte regularly for shoulder pain as his shoulder was now comfortable. The plaintiff had very few if any symptoms in his neck. He was able to use the left arm normally for all purposes below shoulder height but he was quite unable to do any work above shoulder height as his shoulder remained quite stiff.

99        Mr Brearley thought, at that time, the plaintiff was fit for all forms of work other than very heavy manual labouring or work involving lifting or the use of his arm above shoulder height.

100       On re-examination in August 2009, the plaintiff complained of constant discomfort in his left shoulder, made worse by repetitive use or heavy use, and also by attempting to do any work above shoulder height.

101       The plaintiff told Mr Brearley that he was not working and had not worked at all over the past five years except for five months with SRT Transport, until he dislocated his shoulder.

102       Mr Brearley noted that the plaintiff then returned to light duties for two months, and at the end of that time he resigned from that job because he felt he was unable to cope. The plaintiff told Mr Brearley that he was continuing to look for work but without success.

103       On examination of the left shoulder, there was still no obvious wasting or deformity. There was tenderness over the back of the shoulder as before and there was limitation of movement. Mr Brearley noted there had been slight overall improvement in the plaintiff’s movements but significant limitation persisted.

104       Mr Brearley thought significant depressive symptoms appeared to be no longer present.

105       Mr Brearley concluded the plaintiff’s injuries comprised a fracture of the anterior pole of the scapula and probable development of some subacromial bursitis of the left shoulder which was responsible for the plaintiff’s ongoing stiffness and pain. It was noted, in addition, the plaintiff had had a dislocation of his shoulder requiring reduction at Launceston Hospital early in 2009.

106       Mr Brearley repeated his earlier views as to the plaintiff’s work capacity and noted there would be very many jobs, such as a store person, which the plaintiff would be able to do without difficulty. Mr Brearley thought the only restriction was avoidance of heavy manual labour.

The Defendant’s Medical Evidence

107       Two reports were provided by Dr Chris Baker, occupational physician. The first related to a medical examination on 10 April 2000 and the second set out Dr Baker’s comments in relation to the investigations carried out at the Hospital in January 2000.

108       These reports are of limited assistance as they are so outdated. However, having received the investigations, Dr Baker considered the plaintiff suffered a soft tissue injury to his left shoulder and subsequently developed an adhesive capsulitis of the shoulder joint. He considered the plaintiff should be under the care of a specialist with a special interest in shoulder injuries and he thought the plaintiff would probably require a hydrodilatation.

109       Mr David Conroy, orthopaedic surgeon, examined the plaintiff on 3 February 2004 for the purposes of an impairment assessment. At that stage the plaintiff was doing light office work on a part time basis for a different employer, owing to restrictions because of his shoulder.

110       The plaintiff described the incident and how he lost consciousness for several minutes. The plaintiff denied that there had been any improvement for many months. He complained that he was unable to use his left arm for any strenuous activity and he had to stop playing numerous sports that he had played competitively prior to the incident.

111       On examination, there was no wasting of the shoulder or arm and neurological examination of the upper extremities was normal. There was a loss in range of motion of the left shoulder. Reflexes were present, equal and brisk and there was no difference in excess of two centimetres in the circumference of the arms and forearms at the same height.

112       Mr Conroy concluded the history and examination were consistent with chronic musculoligamentous strains at the base of the neck on the left side, rotator cuff dysfunction at the left shoulder and a healed fracture of the scapula.

113       The plaintiff first saw Mr Clive Jones, orthopaedic surgeon, on 18 October 2006.

114       The plaintiff told Mr Jones that after the hydrodilatation, he was off work for a number of months and then had some lighter work for about two weeks. He then had twelve months of light work involving undertaking paperwork for Pan Tuck Pty Ltd, but that employment was terminated when the company was taken over. He had not worked since then.

115       At the examination, the plaintiff’s left shoulder remained painful and there was a sense of pressure at the back of the shoulder blade and the plaintiff was complaining of difficulty sleeping on his left side.

116       There was a full range of movement of the cervical spine. There was some limitation of shoulder movement with rotation being normal. Muscular power of the shoulder appeared normal and there was normal long thoracic nerve function.

117       At that stage, Mr Jones thought the plaintiff’s prognosis was reserved. Mr Jones noted that the shoulder stiffness was ongoing. In his view, the plaintiff had only a light work capacity.

118       Mr Jones considered that the plaintiff was unable to work as a driver and meat lumper and would probably never return to that sort of work. In Mr Jones’ view, medical restrictions should probably include no heavy lifting with the left arm and there should be no requirement to use the left arm at or above shoulder level.

119       On re-examination on 25 October 2007, the plaintiff was taking Tramal for pain, and the anti-depressant, Zoloft. His specific shoulder symptoms had not changed much but new symptoms had appeared, including pain in the chest, breathing difficulties and intermittent shortness of breath. Mr Jones noted that tests in this regard had been clear.

120       On examination, there was significant stiffness of the left shoulder. There was restriction of movement. The cervical spine had a full range of movement and there was no clinical evidence of neck dysfunction.

121       Mr Jones noted examination showed a stiff shoulder with a slight reduction in range of movement since the last examination. There was still some shoulder stiffness. Rather than improving, Mr Jones noted the movement range appeared to have diminished somewhat since the plaintiff was last seen. He believed the plaintiff was unlikely to return to previous heavy work. At that time, he thought the plaintiff was suffering from the residuals of the capsulitis or frozen shoulder. Generally speaking, he thought the prognosis for that condition without treatment was good, particularly in the plaintiff’s age group. He noted that most resolved fully within two years but if the plaintiff had sustained injury seven years ago however, and still had restriction of shoulder movement, it seemed that some loss of function was likely to be permanent.

122       Mr Jones thought that the plaintiff should not be expected to work with his arm above shoulder height or lift weights in excess of five kilograms. Light employment, which would involve retraining, could be a possibility.

123       Mr Jones re-examined the plaintiff on 24 February 2010.

124       The plaintiff told Mr Jones of the further injury to his shoulder in 2009 when he bumped it, causing a dislocation which was reduced under sedation.

125       The plaintiff told Mr Jones he was in a sling for two weeks then had physiotherapy for three to four weeks. The plaintiff was subsequently able to undertake a light duties return to work and was back to working normally four months after the dislocation, and continued to do so. The plaintiff told Mr Jones that Panadol was still sufficient to control his symptoms.

126       The plaintiff described a variable feeling of tightness and discomfort around the left shoulder that generally increased with overuse. Extending his neck fully tended to improve his shoulder symptoms. The plaintiff had found it difficult to sleep on the left side. From time to time he experienced what were described as locking symptoms in the left shoulder but they only lasted a short time – thirty seconds or less. Generally speaking, the plaintiff felt his shoulder problem had not altered greatly over the past two years.

127       The plaintiff told Mr Jones he stopped working for SRT Transport in September 2009 when he moved back to Melbourne. He said he simply wanted a change and was tired of life in Tasmania.

128       The plaintiff told Mr Jones he was working casually as a driver on call with Toll First Fleet. This employment was intermittent and on a ‘needs basis’. There was no need to lift; the loads were usually put on and unloaded by forklift.

129       On examination, there was some limitation in active forward flexion and abduction but there was virtually a full range of passive movements. Apprehension tests were negative and the range of neck movement was full and normal.

130       Mr Jones commented that since he last saw the plaintiff there had been the further trauma, without any further shoulder instability. He thought the plaintiff appeared to have genuine weakness and loss of active movement in the left shoulder but the full passive range was somewhat surprising. He commented that there were no investigations, such as a shoulder MRI scan to define the pathology exactly.

131       Mr Jones noted the plaintiff appeared to have had difficulties with his left shoulder since the incident and it seemed highly likely these difficulties would continue.

132       He thought that the exact problem affecting the plaintiff’s left shoulder was difficult to define. There was an old injury in the incident which may have resulted in an interscapular fracture and a more recent shoulder dislocation injury.

133       In Mr Jones’ view, the plaintiff’s prognosis was reserved. He noted that the plaintiff’s shoulder function was less than satisfactory and had been so for a long period of time. He thought that there was nothing to suggest further improvement or that restoration of normal function would take place.

134       In Mr Jones’ view, it appeared the injury in the incident was significant. Of even greater significance, he thought probably was the dislocation that occurred in 2009.

135       When asked whether the plaintiff’s complaint that he felt his shoulder would pop out if he did repetitive pulling or lifting resulted from the first or second incident, Mr Jones said an unequivocal answer to the question was difficult. He noted although there had been no further dislocations and the apprehension tests were negative, he believed it more likely than not the plaintiff’s feelings of instability related to the recent dislocation. He thought that the dislocation was a significant matter superimposed on the original injury. Mr Jones agreed with Mr Lugg, that further treatment was unlikely to benefit the plaintiff.

136       Mr Lugg, orthopaedic specialist, saw the plaintiff on 8 September 2009.

137       The plaintiff told Mr Lugg that since the hydrodilatation his symptoms had not really changed. Below the shoulder everything was normal but from the shoulder up the plaintiff was unable to lift his left arm as well as he could lift the right. He experienced tightness, a pulling sensation which was painful, which he pointed out as being along the medial border of the left scapula. The plaintiff told Mr Lugg that this restricted him mainly when he tried to move his left arm outwards and upwards. He was unable to repeatedly lift or pull and felt as though his shoulder would pop out if he did.

138       The plaintiff told Mr Lugg that he was in between jobs, but said now his jobs mostly involve driving. The plaintiff was not having any treatment at that time and he told Mr Lugg that he had had no active treatment since 2004.

139       On examination, the plaintiff presented with slight wasting of the left shoulder and tenderness along the medial border of the scapula and along the medial border of supraspinatus.

140       There was decreased abduction and forward flexion. Rotation was normal, the impingement sign was negative and the acromioclavicular joint was normal to examination. Neurological examination of both upper limbs was normal, as was examination of the neck.

141       Mr Lugg did not have any investigations available to him. He commented that the plaintiff had convinced him he had a genuine soft tissue injury but Mr Lugg did not think he could offer a precise diagnosis. Mr Lugg noted the site of the pain was along the medial aspect of the scapula and at the inferior pole where there was the fracture.

142       Mr Lugg thought there was probably an avulsion fracture and he wondered whether it was the insertion of the trapezius that was the problem. He noted the plaintiff had no evidence of any rotator cuff pathology, acromioclavicular joint pathology or cervical pathology.

143       Mr Lugg thought the plaintiff had some form of soft tissue injury relating to probably the attachment of the trapezius to the scapula. Mr Lugg noted that the plaintiff himself said that he was still able to work, but he was just not able to do the sort of work that caused the original injury. Whilst his shoulder was always sore, it was usually bearable.

144       Mr Lugg believed the prognosis was that the plaintiff would continue to suffer similar symptoms in the short and long term. He did not believe any surgery would help the plaintiff and he considered probably the best thing for the plaintiff to do would be to try and manage with various local applications, heat packs and massage.

145 Mr Lugg believed the plaintiff suffered from some injury of the

musculoligamentous attachment along the medial border of the left scapula
which had now developed a chronic inflammatory state.

146       Mr Lugg thought the plaintiff’s employment capacity was only limited in terms of the requirement to lift outwards and upwards. As those activities caused him so much discomfort, it would be hard for the plaintiff to do that sort of work. To that extent, he thought the plaintiff did not have a capacity for pre- injury employment. He thought the plaintiff would be unlikely ever to be able to do such duties without significant pain. He considered the plaintiff could work providing these physical activities were excluded. In his view, the plaintiff had a permanent incapacity but only permanent partial for exactly the sort of activities the plaintiff described as aggravating his pain – lifting using his left arm upwards and outwards.

147       Mr Lugg noted the plaintiff was able to work around the home and he was able to do most things he wanted to do.

The Defendant’s Lay Evidence

148       Mr Joe Failli, manager of the defendant, swore an affidavit on 8 September 2009. He confirmed the plaintiff commenced employment with the defendant in late 1999 or early 2000 as a driver/meat lumper.

149       Mr Failli noted the incident and commented he was happy for the plaintiff to come back on light duties thereafter which were worked out later. On the day the plaintiff came in, he had a black eye and obviously had been beaten up. At that time, the plaintiff was panicking because he did not have money to pay people who were going to “break his legs”.

150       Mr Failli denied that the plaintiff was told there was no work for him, but said after two weeks of doing light duties, the plaintiff refused to do these duties any longer and left. Further, Mr Failli noted that the plaintiff stopped working on light duties because he was unhappy about being paid monthly as he was a person with financial problems.

151       Mr Robert Edelsten, sales and transport manager employed by the defendant, deposed that he was aware that the plaintiff had suffered injury on the said date.

152       Mr Edelsten could recall the plaintiff coming into work a few days later with a black eye and could recall him asking Mr Failli if he could have his pay as a “couple of heavies were chasing him”.

153       Ms Joanne Tyre, Human Resources and Compliance Manager at SRT Logistics, swore an affidavit on 28 April 2010.

154       Ms Tyre confirmed the plaintiff was employed as a permanent full time heavy rigid driver from 31 July 2008 to 25 June 2009.

155       Prior to suffering injury in the course of his employment on 13 January 2009, the plaintiff was guaranteed a minimum of thirty eight hours a week ordinary hours.

156       The plaintiff’s driving role with SRT involved delivering cartons and pallets of frozen and chilled food items on multi-drop runs. He undertook thirty to fifty deliveries and pickups per day.

157       Overtime was regularly available on a voluntary basis and was paid on the ordinary hourly rate Monday to Friday, between thirty eight to fifty hours, and overtime worked over fifty and less than sixty hours was paid at time and a half, $26.25, and over sixty hours was paid at double time. Weekend hours were all paid at time and a half at $26.00.

158       The plaintiff consistently worked large amounts of overtime and the average hours worked by him, including overtime up until 13 January 2009, were 64.28 hours a week. He also received shift, food and uniform allowances.

159       The plaintiff resigned from his position of his own free will on 25 June 2009.

Other Documentation relating to the Plaintiff’s Employment with SRT

160       The plaintiff’s application for the SRT job signed by him on 4 August 2008 was tendered. On that form, the plaintiff denied any previous worker’s compensation claims.

161       The plaintiff’s résumé provided with that application set out that the plaintiff had worked as a driver with Marmel Transport Victoria from 2004 to the present – moving freight between depots in the day and Linehaul from Melbourne to Ballarat and Horsham in the evenings.

162       When interviewed for the job with SRT on 28 July 2008, the plaintiff completed a document setting out that he was fit and healthy and that he had been working eighty hours a week for the last four years.

163       Details of the hours worked by the plaintiff with SRT both before and after January 2009 were tendered. Often the plaintiff averaged about seventy hours a week from May 2009 until he ceased employment in June 2009.

164       The plaintiff’s claim for compensation against SRT was accepted by QBE on 4 February 2009. A number of worker’s compensation medical certificates in relation to this claim were tendered.

Overview

165       It is not disputed the plaintiff suffered a compensable injury to his left shoulder in the incident on the said date.

166       The plaintiff initially suffered a fracture of the interior pole of the left scapula in the incident. He then probably developed subacromial bursitis.

167       Arguing the plaintiff’s impairment was not serious, counsel for the defendant relied upon the recent Court of Appeal decisions in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 and Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.

168       As the Court of Appeal has stated in these cases, a determination of serious injury involves a value judgment in which matters of fact, degree and of impression are operative: see also Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, at 41.

169       The Court must evaluate the consequences of the particular impairment and then make an objective determination by comparing the consequences with other cases in the range of possible impairments. In addition, the Court must be satisfied that the consequences are more than significant or marked.

170       Counsel for the defendant conceded there were consequences of the plaintiff’s impairment but such consequences were not “serious” in his submission.

171       Whilst the plaintiff suffered a very painful injury involving the fracture of his scapular as a result of which he has some ongoing discomfort, restriction of movement and at times stiffness, I am not satisfied that any impairment to his left shoulder is serious and permanent.

172       I do not accept that consequences from an employment perspective are at least very considerable and more than significant or marked.

173       Although the plaintiff can no longer work in the meat industry as a meat lumper as a result of his shoulder injury, this was not his particular trade prior to the incident, when he was predominantly engaged in truck driving.

174       The plaintiff has not been prevented from working as a truck driver since the incident because of his injury. He did limited driving work whilst connected with Mayne Nickless and, more significantly, he has worked as a driver for Labour Force, SRT and now in his current job as a sub-contractor.

175       Whilst the plaintiff experiences difficulty and discomfort with above shoulder movements, and tiredness at the end of the day after work, there is no evidence of any inability to do particular tasks, save for mention in re-examination that he sometimes gets cramping when he changes the gears in his truck.

176       The plaintiff left these jobs for reasons unrelated to his shoulder condition. He left Labour Force following a dispute about his pay and the Mayne Nickless work ceased because of his financial difficulties.

177       I do not accept that the plaintiff left SRT because of his shoulder condition. He was able to work many hours, both before and after the dislocation, in that job which required many hours of manual handling. Ms Tyre was not aware of the plaintiff leaving that job for any problems associated with his shoulder condition.

178       Further, in all these driving jobs the plaintiff worked well in excess of normal hours, taking up overtime whenever it was available.

179       I do not accept that the plaintiff could have worked those hours in those jobs without the requirement for ongoing medication if he had a serious problem with his left shoulder.

180       Further, whilst the evidence does disclose pain and suffering consequences which are both marked and significant, I am not satisfied such consequences meet the statutory test of seriousness.

181       The plaintiff does not suffer from a continuous substantial level of pain. He accepted the description of his pain to Mr Jones involving tightness and discomfort which increased with overuse. The pain was always there but was bearable mostly – being at a mild level most of the time as he told Mr Lugg.

182       His level of pain is such that he does not require medication more than one day a week and then he takes over the counter Panadol, albeit in large quantities.

183       There is the restriction of movement of the plaintiff’s non-dominant arm above shoulder level but otherwise there is no significant problem with shoulder movement.

184       There have not been consistent examination findings of wasting of the plaintiff’s left shoulder to support a finding of significant disuse of the left upper limb.

185       The plaintiff’s only problem sleeping consists of waking with stiffness if he has rolled onto his left shoulder during the night and he simply has to move his shoulder around a bit in the morning to get it going.

186       The plaintiff has not seen a general practitioner in relation to his shoulder condition since he saw Dr Weiss in 2007 for Centrelink certificates. Dr Weiss however reported the plaintiff was never treated at the Clinic following the incident. On the plaintiff’s last visit in 2007, his complaint related to his left leg and there was a suggestion by Dr Weiss that he would be referred to an orthopaedic surgeon in that regard. The plaintiff is still on a waiting list to see a surgeon about his leg.

187       The plaintiff has not had any physical therapy relating to the incident injury since the hydrodilatation was carried out by Mr McQueen in 2003, nor has he seen a specialist since that time. Soon after the incident, the plaintiff only had a fortnight of physiotherapy treatment.

188       I do not accept that the plaintiff has not sought further treatment because he cannot afford it. In my view, the level of symptoms has been such that the plaintiff has not felt the need for treatment.

189       There is no medical evidence supporting the existence of a propensity for the plaintiff’s shoulder to dislocate as a result of the injury suffered in the incident. It seems, from the limited medical material in relation thereto, that there is no link between the dislocation and the incident injury – the latter did not result from any shoulder weakness following the original fracture or injury. The plaintiff simply dislocated his shoulder when he fell onto his outstretched arm. There is no medical support for the view that the plaintiff’s shoulder is more likely to pop out because of the original injury. There is no medical evidence of any complications relating to the original fracture.

190       Mr Jones is the only examiner who has considered the dislocation in any detail. In his view, it was a separate injury all together. Although he found it difficult to say what level of restriction is caused by that dislocation or the earlier injury, he thought it more likely than not the plaintiff’s present feelings of instability related to the dislocation.

191       Whilst deposing to ongoing pain and restriction, the plaintiff did not describe any particular problems with household duties or recreational activities as a result of his shoulder injury.

192       Significantly in this case, there is no suggestion that the plaintiff will experience any deterioration in the condition of his left shoulder in the future nor that he may require any further treatment, whether surgical or otherwise.

193       Taking into account all of the evidence in this case, I am not satisfied that the impairment to the plaintiff’s left shoulder satisfies the definition of “serious injury” pursuant to s.134AB.

194       Accordingly, I dismiss the plaintiff’s application to bring proceedings for damages for pain and suffering.

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