Madaroski v Colonial Meat Export Pty Ltd

[2021] VCC 113

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-06274

SLAVE MADAROSKI	Plaintiff
v
COLONIAL MEAT EXPORT PTY LTD (ABN 23 164 427 007)	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2020
DATE OF JUDGMENT:	23 February 2021
CASE MAY BE CITED AS:	Madaroski v Colonial Meat Export Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VCC 113

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:          Serious injury – impairment of the left and right shoulder – impairment of the back – pain and suffering – loss of earning capacity

Legislation Cited:  Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Acir v Frosster Pty Ltd [2009] VSC 454; Cuturic v Spotless Facility Services [2018] VCC 889; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Lexa v Transport Accident Commission [2019] VSCA 123; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Petkovski v Galletti [1994] 1 VR 436; Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26

Judgment:             Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett QC with Ms J Frederico	Shine Lawyers
For the Defendant	Mr C A Miles	Wisewould Mahony

HER HONOUR:

Preliminary

1This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) for injuries sustained by the plaintiff during the course of his employment with the defendant from October 2009 through to January 2014 (“the said period”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.  The body functions said to be impaired are both shoulders and the back.

3       The impairment of the body function must be permanent.

4The plaintiff bears an overall burden of proof upon the balance of probabilities.

5By s134AB(38)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:

“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

7Section 134AB(38)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

8Although in the plaintiff’s second affidavit the application appeared to be limited to pain and suffering, counsel for the plaintiff indicated in opening, leave is sought under both heads.[1]

[1]Transcript (“T”) 3

9       In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

10      Subsections 38(e) and (f) recite the formula by which loss of earning capacity is to be measured.

11      Subsection 38(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Peak Engineering & Anor v McKenzie[3] in reaching my conclusions.

[2](2005) 14 VR 622

[3][2014] VSCA 67

13The plaintiff swore two affidavits and was cross-examined. Further, he relied on an affidavit sworn by his son, Zoran Madaroski.  In evidence, there were also medical reports and other material.  I have read all the tendered material.

The Plaintiff’s evidence

14      The plaintiff is sixty-nine and was born in Macedonia in May 1949.  He is married with three adult children.  He is right handed.

15      The plaintiff has had no formal English language instruction and left school at fifteen.  He can read a little, but his writing is poor.  He migrated to Australia in 1970. 

16      In October 2009, he started work with the defendant as a boner.  From 2007 to 2009, he had worked in a sugar factory.  Prior thereto, he worked at Olympic Tyres for eight years.  Earlier on, he worked for eight years at Smorgon’s Meats and also at other businesses as a boner.

17      While he been advised by his solicitors that he had made three previous WorkCover back claims (August 1987, May 1990 and February 2005), and had had chiropractic treatment at different times, he did not recall any back problems ever stopping him from working, or preventing him from engaging in a range of activities outside of work for more than a short period.  He could not remember having claimed WorkCover for his back before January 2014.  He could not recall having made three previous claims for compensation.[4]

[4]T13

18      The plaintiff agreed that he told various doctors that before January 2014 he had no back pain.  He could not remember whether in fact he had had back pain since 1980 when this was suggested to him.[5]

[5]T12

19      The plaintiff has had other health problems.  In 2014, he had heart surgery and had since made a full recovery.  He also suffered from hearing loss, hypertension (well controlled with medication) and diabetes (which was largely controlled with diet). More recently, he had been treated for a neurological condition, and for depression.[6]

[6]First affidavit

The work injury

20      While in the defendant’s employ, the plaintiff suffered injury to both his back and shoulders, which he believed was a result of the heavy and repetitive nature of his boning.  In particular, that work involved a great deal of heavy lifting, and also cutting into carcasses that had just been refrigerated and were consequently very hard, resulting in significant strain on his back and shoulders.  This would often result in significant shoulder pain at the end of a workday. 

21      The plaintiff first developed significant shoulder pain in March 2013.  He saw Dr Pardoo, general practitioner, however, he cannot remember if he then received any treatment or had any time off work. 

22      The plaintiff’s shoulder pain became much worse when boning on 21 August 2013.  By then, due to this pain, he had developed left shoulder pain and had pain in both shoulders.  He reported the right shoulder injury and later made a WorkCover claim, which was accepted. 

23      The plaintiff stopped work on 21 August 2013 and then started to see Dr Le regularly. He put the plaintiff off work and also sent him to see a physiotherapist.

24      Having had a few weeks off, the plaintiff returned to work on part-time light duties, doing tasks like trimming and making cardboard boxes, along with general cleaning.

25      As his shoulder pain started to settle, the plaintiff’s back pain was worse than it had been for some time.  When he went back to Dr Le on 3 January 2014 about his shoulder, he told him of his worsening back pain. 

26      On 16 January 2014, the plaintiff developed worse back pain when making up cardboard boxes, having been on light duties since the shoulder injury the previous year.  He reported his back injury and his WorkCover claim was accepted.

27      The plaintiff unsuccessfully tried to return to work a couple of times and had not worked since.[7]

[7]June 2014 attempt to return to work, noted by physiotherapist, Mr Hoang; certification by Dr Sleaby 24 June 2014

28      The plaintiff denied he stopped work in 2014 at the age of sixty-five due to his heart condition and because he had reached normal retirement age.  He stopped because he had pain in his shoulder and back.[8]  If he did not have those injuries, he would have kept working.[9]  He had not decided at the end of 2013 or early 2014, “when [he] would continue to work but [he] wanted to work until [he] could”.[10]

[8]T27

[9]T38

[10]T28

29      The plaintiff did not tell Dr Soliman in early September 2014 that he was not working at the time because of his heart (even though he was already off work by this time).  The doctor “was lying” if he reported it was not the plaintiff’s back or shoulder that was causing him to be off work.[11]

[11]T30-31

Post work

30      In February 2014, the plaintiff began to see Dr Sleaby at St Albans Complete Health Care (“St Albans”),[12] whilst continuing to see Dr Le at Sunshine Alternative Care Clinic (“Sunshine”) Dr Sleaby referred him to surgeon, Mr Bonomo, for his shoulder problems.

[12]St Albans clinical notes commence at November 2015

31      The plaintiff first saw Mr Bonomo in May 2014.  He offered the plaintiff a course of injections and suggested surgery, however, the plaintiff refused both, as he was scared to have this treatment and worried that it may make his condition worse.  He last saw Dr Bonomo in June 2014.[13]

[13]T27

32      Dr Sleaby retired, and the plaintiff then saw Dr Bhalerao regularly, as well as having regular self-funded chiropractic treatment until earlier in 2019.  From about May 2020, the plaintiff has seen Dr Ansari after Dr Bhalerao left St Albans. He prescribed Panadeine Forte for the plaintiff’s injuries.  Generally, the plaintiff now takes this medication for his back and shoulder pain two to three times a week.[14]

[14]T36

33      The plaintiff did not believe he would be able to return to work of any kind, as it would make both his back and shoulder worse.  He had made several attempts to return to work, and even just performing lighter work made his shoulder and back pain worse.

34      The plaintiff did not believe he was suited to office work; he did not have the skills/experience, had a limited ability to read and write in English, could not  use a computer, had no formal qualifications and had no experience in anything other than manual work. 

35      The plaintiff had no plans to retire.  But for the injury, he would have kept working as long as he could.

36      As a result of his injuries, the plaintiff suffered chronic left and right shoulder pain and stiffness (despite the right being much worse than the left), together with back pain and stiffness.[15]

[15]First affidavit

37      The injury also affected the plaintiff’s intimate relationship with his wife.

38      The plaintiff swore his second affidavit in November 2020. 

39      Right shoulder pain then varied in intensity and was intermittent and unpredictable. He had good and bad days. Right shoulder movement was restricted.  It was painful to lift his right arm above his head and to push, pull and lift weights with his right arm.  Right shoulder pain caused difficulties sleeping and he found it difficult to lie on his right side. 

40      The plaintiff had consequential left shoulder pain.  It was not as severe as the right-sided pain; however, he was still unable to lift heavy weights because of it.  He agreed that both shoulders are equally painful.[16]

[16]T31

41      He suffered from constant back pain, radiating from his lower back into his left hip, and also a constant deep ache. The pain level was aggravated by walking, bending over, repetitive movements or staying in one position for too long.  Sitting or standing for long periods was also difficult.   

42      At times, back pain made it difficult for him to get to sleep.  When he woke in the morning, his back was stiff and sore. 

43      As a result of back pain, he had found it increasingly difficult to work in his vegetable garden, and no longer did so. Bending and digging caused increased back pain.  

44      The plaintiff also had some difficulty doing work around the house.  Before the injuries, he would help his wife, but now he had difficulty vacuuming due to right shoulder pain and had issues doing the dishes due to back pain.  Shoulder pain and back pain stopped him from doing housework.[17]

[17]T34

45      When asked about Dr Slesenger’s history that he did not do any housework before his injuries anyway, the plaintiff said that he “did some gardening”.[18]  He later said he did the outside work and agreed that he did not do “the inside work”.[19]

[18]T34

[19]T35

46      The plaintiff struggled with fishing and rarely went anymore.  Previously, it was his main hobby, going on frequent fishing trips with friends, at least once a month.  Nowadays, he had real trouble casting a line, due to his right shoulder.  He now had to ask his friends for help, which he found embarrassing.  Not being able to cast a line detracted from his enjoyment of fishing, given it was such a crucial component.  Also, his shoulders and back tended to ache in colder weather, so he went fishing far less often. 

47      The plaintiff cannot go fishing because of problems “from all things, problems with the lower back, problems with the shoulder”.  He cannot throw the line because of his shoulder; however, his “shaking” stops him from throwing.[20]

[20]T35

48      The plaintiff had a small vegetable garden which he tended without difficulty before the injuries; however, he now had real difficulty working in the garden and was very limited.[21]  He had problems mowing and had difficulty preparing a garden bed.  He had to do a little bit at a time. 

[21]T32

49      The plaintiff’s sleep was disrupted, waking up in pain three to four times a week and occasionally having to wake up and stretch or take medication.  Mainly right shoulder pain woke him and, to a lesser extent, back pain.  He often woke up unrefreshed and sometimes felt tired during the day. 

50      For a brief period in 2016, he was told by his doctor that the medication he was taking was also disturbing his sleep.  “Maybe” his neurological condition interferes with his sleep because of the involuntary movements involved.  “Maybe” his psychiatric state interferes with his sleep.  His back and bilateral shoulder pain “sometimes” interfere with his sleep.[22]

[22]T31-32

51      The plaintiff was no longer able to do, or had difficulty doing a range of things.  He was no longer able to work and missed working as it was important to him.

Other health issues

52      The plaintiff had an aortic valve replacement in 2014.  He suffered depression in the past which he believed had been aggravated by his injury.[23]

[23]First affidavit

53      The plaintiff had a cardiac catheterisation on 27 February 2014.[24]  He denied having ongoing problems with his heart and circulatory system since 2014,[25] yet did agree that he briefly suffered heart-related issues that suggested difficulties with his heart valve replacement in 2017.[26]  He then accepted he might have been having heart-related symptoms since 2013.[27]  He takes an Atorvastatin tablet for his heart condition.[28]

[24]T22

[25]T14

[26]T15

[27]T14

[28]T18

54      The plaintiff suffers from a neurological condition, similar to Parkinson’s disease, for which his treating neurologist, Associate Professor (“AP”) Matkovic, prescribes tetrabenazine and Symmetrel.  With this medication, the plaintiff can now walk adequately, however, he still has some involuntary movements, mainly twitching on his mouth.  He denied that his doctors had told him that taking tetrabenazine could contribute greatly to depression.[29]

[29]T18-19

55      The plaintiff accepted that his neurological condition has worsened over time. He did not recall when he saw Mr Grossbard with Zoran in June 2020 that his Zoran told Mr Grossbard that the plaintiff had changed significantly for the worse over the past few months.[30] His neurological problems have interfered greatly with his life.[31]  

[30]T17

[31]T18

56      The plaintiff’s neurological problem means he has trouble walking, controlling his limbs, and he cannot use his arms as they are “no good, very tired”. He neither confirmed nor denied that it was because of his neurological problem that he can no longer do the gardening.  He can fall over when he walks for a longer period.[32]

[32]T33

57      The plaintiff does not recall having a stroke and resultant right arm weakness on 7 September 2018 or having hypertension and diabetes for some time before he hurt his shoulder.  He accepted he has suffered from hearing loss for a long time.[33]

[33]T16

Mental health

58      The plaintiff’s mental health has deteriorated and been affected by his injuries.  He attempted suicide in March 2019.  He believed this was partly due to not working and he had been told tetrabenazine could affect his mental health. 

59      He had always worked and found it very difficult being unable to work because of his injuries.  He was planning to work into his seventies.  He had worked for a long time and could not cope with not working.  His identity was very much tied to going to work every day and being a productive member of the community.  He missed the companionship of his workmates.  Further, he was unable to enjoy the recreational activities he enjoyed prior to his injury.

60      The plaintiff did not remember telling Dr Jager, psychiatrist, in 2020 that he had been depressed since developing his movement disorder.  He had no memory of seeing Ms Roglic, psychologist, in 2017 and 2018 or reporting to her that his mental health issues were family and not work related.[34]

[34]T26

61      The plaintiff was cross-examined about his attendances at St Albans.

62      The plaintiff agreed that on 11 November 2015, he attended for his neurological problem and for his heart issue.[35]  He did not know whether, on 21 April 2016, he needed a referral to see his heart surgeon.[36]  He could not remember a reported partial thrombosis of his aortic valve in October 2017.[37]

[35]T19

[36]T19-20

[37]T20

63      He remembered attending St Albans on 5 May 2016 for sleeping issues and depression and was then prescribed anti-depressant medication. He could not remember a visit on 1 September 2016 for the same reasons.[38]

[38]T20

64      The plaintiff remembered being admitted to hospital for a stroke on 17 September 2018.  He also agreed he was in NorthWestern Mental Health for five weeks from about April 2019.[39]

[39]T21

65      The plaintiff initially said he could, but then said he could not recall attending St Albans on 15 January 2020 or attending on 22 July 2020 about ischemic heart disease.[40]

[40]T21

66      The plaintiff could not remember if he had an x-ray of his back around September 2013.[41]

[41]T23

67      The plaintiff could not recall an electrocardiogram on 18 September 2013.  He could not remember attending an Emergency Department with chest and shoulder pain one week later.

68      The plaintiff recalled discussing heart surgery with Dr Vu Le at Sunshine on 17 March 2014.  He could not recall attending Sunshine in April and June 2015 because he was stressed about family issues and Workcover not paying him. He could not recall attending in June 2015 for restless limbs.[42]

[42]T24

Lay evidence

69      The plaintiff’s son, Zoran Madaroski (“Zoran”), aged thirty-six, swore an affidavit on 27 November 2020.

70      Zoran confirmed the plaintiff’s evidence that his main interests outside of work pre injury were fishing with friends, tending to his vegetable patch, socialising regularly with his wife and friends, and work.

71      He confirmed that the plaintiff used to love going fishing with friends but now no longer goes, that he was proud of his vegetable garden but now his wife does it.  The plaintiff now has a limited social life.

72      Zoran confirmed the plaintiff’s neurological condition, involving involuntary movements including twitching of the mouth and difficulty with walking, however, this had since improved with medication.

73      The plaintiff is quiet and sits around not doing much.  He used to be active when he was at home.

74      The plaintiff has complained of pain in his right shoulder, and it hurts to lift it over his head. The plaintiff feels weaker than he used to in the right shoulder and is stiff and sore. He has complained of similar symptoms in his left shoulder.

75      The plaintiff also complains of back pain. He is uncomfortable on the couch and needs to change position if having been in the same position for too long.  He also complains that back pain affects his sleep.

76      There has been a deterioration in the plaintiff’s mental state. He appears downcast, isolated and is no longer able to enjoy work. 

Claim documentation

77      By letter dated 29 August 2013, the plaintiff was advised liability had been accepted for his bilateral shoulder injuries of 21 August 2013.

78      The plaintiff signed a Claim Form on 11 February 2014 relating to an injury on 16 January 2014, when he experienced lower back and hip pain, picking up boxes.  He answered “no” to whether he had previously had another injury, condition or personal injury relating to that condition.

79      By letter dated 14 March 2014, QBE advised the plaintiff that it had accepted his claim for weekly payments and medical expenses relating to the 16 January 2014 injury.

80      By letter dated 23 December 2015, QBE advised the plaintiff that liability had been accepted pursuant to s98 for injury to the shoulders suffered on 21 August 2013.  The report of Michael Shannon was relied upon. 

81      An impairment claim for the back and left hip was submitted in April 2015.  By letter dated 4 July 2015, QBE advised the plaintiff liability was accepted for his lower back injury but rejected for the left hip.

The Plaintiff’s medical evidence

Treaters

General practitioners

82      Dr Elias Sleaby of St Alban’s has reported on a number of occasions.

83      As of 15 August 2014, he thought the plaintiff’s current incapacity for work was related to both his shoulder and back injuries and that he had been unfit for any work since 10 February that year.

84      Dr Sleaby noted the plaintiff was then experiencing pain and stiffness in his lower back, with shoulder pain and reduced range of motion.  He was encouraged to try and return to work and was given appropriate certification of capacity on 24 June 2014.

85      However, the plaintiff was not able to continue due to pain, and his return to work trial failed.  Dr Sleaby then thought the plaintiff did not have a current capacity for any duties.  He was a sixty-five-year-old man with multiple chronic conditions and it was unlikely he would ever join the workforce again.

86      In his December 2014 report, Dr Sleaby diagnosed musculoligamentous and discogenic injuries to the lumbosacral spine sustained on a background of age-related and asymptomatic degenerative changes to the lower back.

87      He thought that the plaintiff’s employment had been a contributing significant factor to his injuries.  It was worth noting that the plaintiff was sixty-five and, as expected, imaging clearly demonstrated age-appropriate degenerative changes to the lumbar sacral spine.  However, these changes were not symptomatic.  Based on the above, Dr Sleaby thought it seemed there was a direct relationship between the plaintiff’s condition and the work injury of January 2014.  It was unlikely the plaintiff would ever return to the workforce.

88      While Dr Sleaby agreed with Dr Soliman’s opinion that the plaintiff sustained a lower back injury as a result of the January 2014 incident, he disagreed with his view that the plaintiff’s symptoms related solely to his degenerative condition.

89      In his November 2015 report, Dr Sleaby stated there was a direct relationship between the plaintiff’s condition and the work injuries to both his shoulders and back.  He thought it unlikely the plaintiff would ever return to work again.

90      Dr Vaishali Bhalerao from St Albans, first saw the plaintiff on 9 October 2017 for his bilateral shoulder condition. 

91      Dr Bhalerao diagnosed musculoligamentous and discogenic injuries to the lumbosacral spine, bilateral rotator cuff tendinitis tears and Adjustment Disorder which had now evolved to Major Depression. 

92      Dr Bhalerao noted as of August 2019, the plaintiff continued to report pain and tenderness in both shoulders, with limited range of movement, and also complained of back pain. 

93      Dr Bhalerao thought the plaintiff was now suffering from Major Depression and was being monitored by the team at NorthWestern Health following his admission there for an intentional overdose in March 2019.

94      Based on the history given by the plaintiff, together with the clinical records and imaging to his shoulders and back, Dr Bhalerao considered his employment had been a significant contributing factor to the plaintiff’s injuries and his current conditions, including his Major Depression, which was a secondary condition to his physical work-related injuries.

95      The plaintiff was last seen by Dr Bhalerao on 8 August 2019, when he reported his psychiatric team had increased his Venlafaxine to 300 milligrams.

96      Dr Bhalerao did not feel the plaintiff had the capacity for any work given his age, disability due to his work-related injuries and his current medical condition.  The plaintiff was then taking Panadeine Forte, 500 milligrams, plus the Venlafaxine.

97      Dr Bhalerao thought it was highly unlikely the plaintiff would return to the workforce due to his age and his work-related conditions to his back and shoulders, as well as his Major Depression, and he had no capacity for retraining.  The injuries had affected his social, recreational and personal life, and he required assistance from family members with personal activities of daily living.

98      Another general practitioner from St Albans, Dr Ansari, first saw the plaintiff in January 2020.  He largely repeated the comments of his predecessor in terms of diagnosis and the view the plaintiff had no capacity for employment.

99      Mr Anthony Hoang, physiotherapist from Sunshine Primary Health, reported in April 2015, having seen the plaintiff on referral from Dr Vu Le, in September 2013, for management of his bilateral shoulder pain secondary to work injuries.

100     Mr Hoang noted that Dr Le recommended a three-week break from work when seen on 21 August 2013 in conjunction with twelve weeks of physiotherapy.

101     There was a return to modified duties trimming meat, making cardboard boxes and general cleaning up.  These duties were self-paced, four hours, three to four days per week. The plaintiff had days off when shoulder pain became unbearable.  With an increase in hours, shoulder pain increased.  There was an incident of low back pain in January 2014 and the plaintiff ceased work the middle of the following month due to increasing shoulder pain.  A combination of rest and rehabilitation allowed the plaintiff to return to work at the start of June when he continued to complain of shoulder and back pain

102     Mr Hoang thought the injuries were consistent with the duties the plaintiff reported performing during his employment as a butcher and meat processing worker. After funding was ceased, the plaintiff continued as a private client from 12 January 2015.

103     Mr Anthony Bonomo, orthopaedic surgeon – shoulder and knee specialist – saw the plaintiff on referral from Dr Sleaby in March 2014 for treatment of his bilateral shoulder pain. 

104     Mr Bonomo diagnosed lateral rotator cuff impingement syndrome.  He noted the plaintiff did not state a discrete event to precipitate the problem, but the doctor understood the symptoms occurred in the course of the plaintiff’s employment.  He last saw the plaintiff on 19 June 2014, at which time treatment options included steroid injections and arthroscopy. The plaintiff was then going to consider the treatment options. He had not seen the plaintiff since.

105     The plaintiff saw Dr Amy Baker, chiropractor, from 3 June 2015 until 8 June 2016 for treatment of his thoracic and lumbar regions.

106     AP Matkovic, neurologist, reported on 3 June 2020 to the plaintiff’s general practitioner following a telephone consultation with the plaintiff’s son.

107     Zoran told him that the plaintiff was doing okay and was pretty similar to the last visit. The involuntary movements were still there, just twitching of the mouth.  He was not depressed and walking was adequate.

108     AP Matkovic advised he was pleased with the plaintiff’s condition, as was Zoran; after all he was stable, and his mobility was adequate.  No change to his treatment was necessary.  Zoran requested a tetrabenazine prescription and was asked to make an appointment for December.

Investigations

109     Following a left shoulder ultrasound in August 2013, it was reported there was calcific left subscapularis tendinopathy. There was moderate left supraspinatus tendinosis with a 4 x 3-millimetre under surface anterior partial tendon tear associated with moderate subacromial bursitis and impingement.  It was suggested an ultrasound-guided left subacromial bursal cortisone injection could be performed for symptomatic relief.

110     The plaintiff also had a right shoulder ultrasound that month.  It was reported there was mild right biceps tendinosis, calcific right subscapularis tendinopathy and mild subacromial bursitis with bursal impingement.

111     No significant abnormality was detected on an x-ray of the pelvis and left hip in February 2014.

112     The plaintiff had a lumbar MRI scan in May 2014.  It was reported there were disc bulges at L4-5 and L5-S1, together with an annular fissure seen at the L3-4.  Narrowing was seen in the region of the subarticular recesses at L4-5 and into the left subarticular recess at L5-S1. The exit foramina were narrowed at both L4-5 and L5-S1, on both sides.

Plaintiff’s medico-legal evidence

113     Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of QBE in December 2015 in relation to the August 2013 injury.

114     The plaintiff then had limited movements of both shoulders which woke him at night. He had significant restriction of movement of both shoulders, particularly the left.  He was noted to have a substantially better range of flexion when dressing at the end of the consultation.

115     Mr Shannon diagnosed bilateral rotator cuff degeneration with impingement and associated degenerative change in the shoulder and acromial clavicular joints.

116     QBE arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Roy Carey, in July 2015.

117     The plaintiff then had constant but variable left lumbosacral area pain which he indicated to be about the size of his hand in that area. He did not get leg symptoms. He thought that for the last two to three months he had movements of all parts of his body which he could not explain.

118     Mr Carey diagnosed lumbosacral area pain due to aggravation of pre-existing, apparently asymptomatic, lumbar spondylosis, noted the imaging findings of 7 May 2014 could not possibly have been created as a result of an injury only three-and-a-half months earlier.  He allowed an impairment rating under the AMA Guide.

119     Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff in June 2020.

120     The plaintiff then described intermittent shoulder pain equivalent on each side.  It was an ache with occasional episodes of sharp pain.  He also reported lower back pain, which was constant, more on the left than the right, the level of which varied.  It was usually a dull pain but occasionally became severe.  There was no radiation.

121     Mr Grossbard noted the plaintiff to be very slow in responding to questioning and at times presented with a rather vacant gaze.  He asked Zoran about change in the plaintiff’s personality or affect and he suggested things had changed very significantly over the past few months, describing his father as usually being lively and responsive.

122     Mr Grossbard thought the plaintiff had suffered soft tissue strains to both shoulders. The presence of calcific tendinosis and, in particular, the tendinosis around the biceps of the right side, together with his marked restriction of motion bilaterally, but especially the loss of external rotation with the elbows at the sides, was highly suggestive of capsulitis bilaterally.  While that condition is not uncommon bilaterally, it usually related to an underlying shoulder pathology and may be in response to injury.

123     To that end, Mr Grossbard believed the plaintiff’s employment had been a contributing factor to the development of his current shoulder symptoms, although he suspected there was underlying bilateral pathology.  Work had however been an aggravating factor and the condition was unlikely to change in the near future.

124     Mr Grossbard noted the plaintiff also had a longstanding problem with lower back pain, which he considered to be a mechanical issue in association with degenerate back disease.  The fissure at L3-4 on MRI scan would suggest there had been an injury at some stage.  The January 2014 episode was the event which pushed the plaintiff into retirement, bearing in mind he was already in his mid-sixties.

125     Mr Grossbard thought the ongoing back pain was not associated with sciatica or with evidence of radiculopathy and was best managed with exercise.

126     At the age of seventy-one with bilateral shoulder issues and ongoing back issues, the likelihood of the plaintiff returning to any form of paid employment was negligible and he was not going to be able to return to activities that required a great deal of bending or lifting.

127     While clearly outside Mr Grossbard’s expertise, he noted that the plaintiff’s presentation did strike him as warranting further investigation from either a neurological or psychiatric perspective, mentioning Zoran did indicate a significant change in the plaintiff’s personality and general presentation.

128     The plaintiff was examined by occupational physician, Dr Joseph Slesenger, in October 2020. 

129     The plaintiff told him he could walk for five to ten minutes with a shuffling gait and advised he was unstable but did not use a stick.  He had difficulty climbing up and down stairs and was not able to walk on uneven ground.  He had difficulty forward reaching, over shoulder reaching or lying on either side.

130     The plaintiff described residual pain in the right shoulder that was constant and severe and associated with restricted range of movement.  He had residual left shoulder pain similar to the right.  He had residual lower back pain that was severe, constant, centred in the lower back and radiating into the right buttock.  He had had depression and anxiety since ceasing work.

131     Dr Slesenger noted the plaintiff had a cardiac disorder, having undergone surgery for an aortic valve replacement in 2014.  He had had renal surgery in the 1980s and had developed a movement disorder, presenting with involuntary leg movements and shuffling gait in 2015.  He also had bilateral hearing loss.

132     Based on the evidence presented, Dr Slesenger was satisfied that the bilateral shoulder impairment related to pre-injury job tasks.  In particular, he noted the manual handling and postural demands associated with the plaintiff’s role.

133     Further, Dr Slesenger was satisfied that the lumbar spinal impairment related to the manual tasks and the repetitive actions performed while assembling boxes during the course of the plaintiff’s recovery.

134     Dr Slesenger noted the plaintiff underwent investigations to his neck and lower back prior to the index accident.

135     With regards to the plaintiff’s lumbar spinal impairment alone, Dr Slesenger thought his incapacity was related to the injury under consideration, namely the manual handling and postural demands associated with his pre-injury role.

136     Dr Slesenger thought the plaintiff could not return to pre-injury duties.  In support of this, he noted the plaintiff’s current symptoms and functional limitations, his employment history, the manual handling and the postural demands associated with his pre-injury role.  He thought, taking into account his literacy, limitations, current symptoms and functional limitations, lack of computer skills and qualifications, and his focused occupational experience, the plaintiff was unlikely to be able to return to work in a role for which he was suited.

137     With regards to the plaintiff’s bilateral shoulder impairment, Dr Slesenger was satisfied that was related to the injury under consideration, namely the manual handling and postural demands with his pre-injury role.  Based on that impairment, the plaintiff could not return to his pre-injury duties.

138     Taking into account the plaintiff’s age of seventy-one, his residential location in Sunshine, his literacy limitations, his current symptoms and functional limitations, his lack of computer skills, lack of qualifications and his focused occupational experience, Dr Slesenger thought it unlikely he would return to suitable work.

139     Dr Slesenger was satisfied the plaintiff’s bilateral shoulder and lumbar spinal impairments were materially contributed to by the injuries.

140     In his view, it was difficult to disengage the effects of the movement disorder from the lumbar spinal and bilateral and shoulder impairment, however, he noted, even prior to the onset of the movement disorder, the plaintiff was struggling with domestic duties according to his son. 

141     He was satisfied that the bilateral shoulder and lumbar spinal impairment would also impact on the plaintiff’s recreational pursuits, namely fishing and gardening.

142     Dr Slesenger was satisfied the movement disorders would have impacted significantly on the plaintiff’s capacity for work and it is unlikely he would have been able to remain at work performing his pre-injury duties once that disorder had developed.

143     In his supplementary report of late 2020, Dr Slesenger stated, based on the right shoulder impairment alone, taking into account all factors relevant to the plaintiff, it was his opinion that the plaintiff was unlikely to be able to return to pre-injury duties, nor was he likely to return to a role for which he had suitable training and experience.  He made similar comments in relation to the left shoulder injury alone. 

144     Psychiatrist, Dr Brendan Hayman, saw the plaintiff in July 2020.

145     Dr Hayman thought the plaintiff had developed a Major Depressive Disorder consequent to his workplace injury and that had been contributed to by the more recent movement disorder. 

146     In his opinion, the plaintiff had no current capacity for work.  He was seventy-one and had physical issues, a Major Depressive Disorder, a movement disorder and likely cognitive decline.  The totality of the picture would seem to be the plaintiff was unable to return to any work or pre-injury duties.  From the depressive syndrome alone, he would not be able to return to work.

The Defendant’s evidence

Lay evidence

147     Simon Brady, former director of the defendant, swore an affidavit on 27 November 2020. 

148     In short, he deposed that in about early 2013 at the end of a shift, the plaintiff said words to the effect of “‘I can[’]t do this anymore, I will stop end of the year’”. At the time, the plaintiff ceased working for the defendant, Mr Brady believed he was the oldest boner.  He did not believe there was anyone employed by the defendant over the age of sixty-five.

Medical evidence

149     The plaintiff had chiropractic treatment from Peter Mitrevski from November 1996 to mid-2005.

150     There was a lumbar spine and pelvis x-ray taken on 27 November 1996, a full spine and pelvis investigation on 25 February 2005 and a further lumbar spine x-ray on 23 June 2008.

151     On 27 August 2013, Dr Lu from Sunshine noted a complaint of lower back pain and increase in right shoulder pain after modified duties.  There was a discussion about a return to work plan.  Right shoulder was noted as worse than left on 4 September 2013.

152     On 11 September 2013, an x-ray showing a compression fracture at T12 and marked degenerative change in the lumbar spine was noted. There was shoulder pain and right arm pain.  Bilateral shoulder pain was noted on 1 November 2013.   

153     On 4 February 2014, a complaint of left shoulder pain and lower back pain after attempting return to work on restricted duties was noted.  After that date, reviews related to the plaintiff’s heart condition and, in 2015, his neurological issue. 

154     The St Alban’s notes commence in November 2015.[43]  Dr Sleaby then noted the reason for contact was back pain related to WorkCover claim.  Throughout 2016, Dr Sleaby noted “chronic condition- symptoms remain unchanged – needs continuing certificate for insurance purpose”.

[43]The plaintiff deposed he started seeing Dr Sleaby in February 2014

155     Bilateral shoulder impingement was noted on 8 August 2016 and pain in both shoulders in September 2018.  On 17 September 2018, it was noted “admitted to hospital for stroke”.  There was a reference on 23 April 2019 to bilateral shoulder pain. 

156     The plaintiff was referred to Mr Huong, physiotherapist, for his left shoulder in March 2015 and for his lower back pain in December 2018.

157     AP Matkovic, wrote to the plaintiff’s general practitioner in July 2015 thanking him for his referral because of the plaintiff’s involuntary movements.

158     AP Matkovic noted the plaintiff told him he wanted to find out why he had funny movements, symptoms that had been present for two to three months only, beginning in his feet, spreading to his arms, and in the last few weeks to his tongue and lips.

159     He noted the plaintiff had had tissue aortic valve replacement and also a history of hypertension and diabetes.  He concluded the plaintiff had generalised chorea and he suspected Huntington’s Disease.  Medication was prescribed and further investigations indicated.

160     AP Matkovic wrote to the plaintiff’s general practitioner again in December 2018 following a review that month.  The plaintiff had been to Sunshine Hospital earlier in December, with right upper limb ascending sensory disturbance with proximal weakness.  A diagnosis of transient ischaemic attack was made.  A brain MRI scan in October 2018 showed evidence of bilateral frontal lobe white matter infarcts, larger on the right, and also small vessel ischaemic change had progressed.

161     The plaintiff attended the stroke follow-up clinic.  In hospital it was noted he had right-sided lower limb chorea and Parkinsonism as a consequence of his treatment with tetrabenazine.  His son said he did not walk as much as he did in the past, and even when prompted by family, preferred to stay indoors.  The plaintiff said he had a little stroke and weakness on the right side, from which he had recovered.  He walked slowly, with reduced arm swing.  He also had involuntary movements, most prominently of the right foot, but also the left foot and hips, and there was intermittent tongue protrusion. 

162     AP Matkovic concluded the chorea had been reduced, but not abolished, by tetrabenazine.  He thought the plaintiff’s current condition was the best they could do.

163     In correspondence to the plaintiff’s general practitioner in September 2019, AP Matkovic noted, when seen on 11 September, when the plaintiff walked into the consultation, he was worse.  He walked very slowly and took very short steps.  He had been very slow in the last month and also had intermittent tremor of the left leg.  Sometimes he came to a complete stop and it may take him a whole minute to get going again.

164     AP Matkovic concluded the plaintiff’s main problem then was his gait disorder, with very slow walking.  Involuntary movements had receded so the dose of tetrabenazine needed to be reduced. 

165     Neurologist, Dr Tu, from Western Health, wrote to the plaintiff’s general practitioner in November 2018, having seen the plaintiff after a left cortical transient ischemic attack on 7 September 2018 that manifested as right upper limb weakness and numbness.  He noted that the MRI was suggestive of a cardioembolic cause for the recurrent infarcts.

166     The plaintiff’s treating psychologist, Ms Linda Roglic, wrote to his general practitioner in June 2018, thanking him for the referral, with six sessions completed as at April 2018.

167     Ms Roglic noted the plaintiff was beset with sorrow at the impact of his condition and deep disappointment and regret, with self-blame at his inability to optimise the value of his assets as he had planned, ensuring him and his wife a more secure and comfortable retirement and ultimately a greater bequest to his sons.  He had arrived in Australia with nothing and had amassed more than an adequate worth through focus and commitment to prudence and hard work.  That he missed the last hurdle was bothersome to him.  She noted the plaintiff felt saddened for his sons, who were then not married.  His social participation had decreased significantly as he was uncomfortable about his tremor, his speech was difficult and his friends who had not died were not themselves able to drive to make visits.  Further, where he lived with his wife in his retirement was not as comfortable or rewarding as they had hoped. 

168     Ms Roglic concluded all of the above-mentioned factors were contributors to the plaintiff’s state of mind and therefore were ongoing.

169     In the discharge summary from North Western Mental Health in March 2019, it was reported the plaintiff was suffering a Major Depressive Disorder and also a progressive neurological condition characterised by choreiform movements.  He had presented to the Emergency Department after an intentional overdose on 13 March 2019. 

170     On review in the Emergency Department, the plaintiff reported life was no longer enjoyable and he was always sad, bored and time passed slowly.  He identified the stressors as the choreiform-type movements affecting legs and arms, sleep was disturbed, he no longer drove and he complained of back pain over two months.  He had reported contemplating suicide over several months.

171     The plaintiff was seen post admission by Northern Health.  It was noted as of July 2019, that he was in a partial remission of depression, possibly given organic contribution of tetrabenazine.  Northern Health were aware that the plaintiff’s movement would likely deteriorate again if that medication was reduced.

Medico-legal evidence

172     Dr Sam Soliman, occupational physician, examined the plaintiff in September 2014.

173     The plaintiff was then complaining of intermittent lower back pain, which was three to seven in severity, depending on his activities. 

174     The plaintiff stated he injured his lower back in January 2014 while lifting empty flat boxes weighing less than a kilogram from a pallet to make boxes for packing.  He stated he had a shoulder injury with the current employer a year ago and had been on light duties before his back injury.

175     Dr Soliman noted the plaintiff presented as a pleasant sixty-five year old man who was walking with a pronounced limp and slow walk.  On examination of his back, there was no midline tenderness and no evidence of muscle wasting or muscular spasm.

176     Dr Soliman attended a workplace assessment on 19 September 2014.  Having had the opportunity to inspect the plaintiff’s duties which were light, he believed the described incident was highly unlikely to have caused the injury.  However, if it did occur, the plaintiff may have strained his lumbar spine at work in January.  That strain had now ceased, and the plaintiff had been off work for nine months and the described incident was minor. 

177     Dr Soliman thought the plaintiff’s symptoms at that time related to his underlying degenerative condition and employment was no longer a significant contributing factor to his lower back pain.

178     Dr Soliman then considered the plaintiff was fit to return to full-time pre-injury modified duties which were light and self-paced and did not require prolonged sitting or standing, and his position could be altered as needed. 

179     Dr Soliman noted the plaintiff stated he was having heart surgery on 22 September 2014.  In his view, the plaintiff’s incapacity was related to his heart complaint and not to his back or shoulder.

180     Dr Soliman advised that the plaintiff and his employer need to be aware of his underlying degenerative condition to avoid any repetitive type of work or heavy lifting below the waist, with a maximum lifting limit of 6 to 8 kilograms.

181     Dr Soliman diagnosed multilevel degenerative lumbar spine disease.  The inspected and described duties were highly unlikely to have caused or exacerbated that condition.  If there was a strain, it had now resolved, and the lower back condition was related to underlying degenerative disc disease. 

182     He did not believe employment with the defendant had materially contributed to the plaintiff’s back condition.  He thought the plaintiff could return to full hours and assessed alternate duties.

183     Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in March 2015 in relation to the August 2013 injury.

184     Both shoulders were then said to be equally painful and somewhat stiff.  The plaintiff also had some interscapular pain and neck muscle soreness.

185     Mr Jones thought the plaintiff had bilateral shoulder inflammation with some tendon calcification on the left associated with arthritic changes in the acromioclavicular joint.  He noted the defendant had a policy of mandatory retirement at age sixty-five for all boning and labouring positions and therefore the plaintiff would appear to be unemployable on that basis.

186     Mr Jones thought the plaintiff’s shoulder problem was simply an age-related one which would be ongoing.  The shoulder injury had not resolved and was likely not to do so.  He presumed it reasonable for the plaintiff to receive weekly payments on the basis of that claim.  The shoulder was unlikely to require surgery, but did cause significant levels of pain and stiffness. 

187     In Mr Jones’ view, the plaintiff’s employment with the defendant still appeared to be a significant contributing factor in his treatment needs.  The medical condition as far as the shoulders were concerned was a combination of arthritic change in the acromioclavicular joint and tendon swelling, and calcification which had not resolved.  As usual, causes were multiple.  There was an age and work relationship.

188     Mr Jones understood a work resumption with the defendant was not possible having reached the age of 65. In theoretical terms, he thought the plaintiff had a light work capacity with minimised weight handling to 10 kilograms and reduced use of the arms above the shoulder. It was not a situation of no current work capacity at all

189     Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in September 2020.  Despite the assistance of a Macedonian interpreter, he described it as a very difficult interview. 

190     The plaintiff displayed a flat affect and there were long delays before he gave his limited responses to questions.  Most of the questions put to him regarding his past history were answered by him saying he could not remember, or he did not know. 

191     Mr Simm confirmed the two injuries and the history in relation thereto, noting the file material showed an extensive history of previous back pain which the plaintiff could not recall.

192     Although the files suggested the problem was predominantly right shoulder, when giving his history, the plaintiff said the pain was equally in both shoulders and the lower back.

193     The plaintiff had pain over the right deltoid, with some radiation proximally to the base of the neck and distally into the arm.  Right shoulder pain was constant, and he had not improved since he left work.  Left shoulder symptoms were identical.

194     The plaintiff complained of lower back pain every day, but it was intermittent.  The pain may be severe and limit activity.  It occurred in the lumbar region more to the right side.  It radiated into the buttocks but not down the legs.

195     Mr Simm noted the plaintiff had developed worsening heart problems in 2014 and had valve surgery in September that year, which was apparently successful.  He had hearing loss, hypertension and diabetes.  He also had a neurological condition.

196     Mr Simm thought the plaintiff had bilateral painful shoulder dysfunction which was predominantly to do with age-related degenerative pathology, although the signs and symptoms were rather non-specific.  He noted the radiological findings and described the age-related changes as being made symptomatic and contributed to by the physical demands of the plaintiff’s occupation.  The claim was that of the nature of work injuries.

197     If one accepted the work duties involved as a boner did accelerate the degenerative changes and contribute to the onset of symptoms from these changes, then the entire thirty-four years of this work must be implicated.  This would mean that four years of physically demanding work undertaken with the defendant would provide a small contribution only, which would be difficult to quantitate.

198     Mr Simm noted the plaintiff had painful dysfunction of the lower back with referred symptoms into the lower limbs, particularly the right, but not typical of radicular pain and there was no reported neural compression on findings.  He thought the symptoms were probably due to the age-related degenerative changes which most affect the facet joints. They were relatively mild on investigation. 

199     Mr Simm noted the plaintiff had an extensive past history of recurrent and at times disabling lumbar pain.  He attended his general practitioner prior to the claimed incident complaining of lower back pain.  The January 2014 incident was unlikely to cause damage to the degenerative structure of the back and he regarded that, therefore, as an exacerbation rather than an aggravation of the longstanding condition.

200     Mr Simm thought the plaintiff’s clinical course had the features of a chronic adverse pain response.  His general clinical presentation was of a man who was suffering from severe depression and also had severe cognitive and memory problems.

201     Mr Simm noted that prior to the injury, the plaintiff was able to undertake physically demanding work. Following the onset of bilateral work-related shoulder pain, he remained disabled by pain and further disabled by the recurrence of his chronic back pain. After his shoulder injuries, he was able to go back to work and said to be improving.  When the back pain intervened, severe adverse pain response became more established, and after several months off work, he made an unsuccessful attempt to return to light duties and had not worked since.  He now presented as a dependent invalid with chronic pain and a number of apparently severe unrelated medical problems.

202     Mr Simm noted the plaintiff had surprisingly minor changes on lumbar investigations.  The recent MRI scan changes would be extremely common in the asymptomatic general population of his age, but presumably these degenerative changes were responsible for the organic component of his back pain.

203     Mr Simm concluded the pattern of recurrent pain was well established prior to employment with the defendant and a recurrence of lower back pain occurred on light duties.  He therefore thought that the contribution from the claimed injury with the defendant was an exacerbation of the plaintiff’s longstanding pre-existing condition and that the work duties were not responsible for further damage which could have modified the underlying degenerative pathology.

204     Dr Alan Jager, psychiatrist, examined the plaintiff in November 2020. 

205     The plaintiff said he last felt completely well in 2013.  He developed shoulder pain, and the following year, lower back pain, and stopped work.  He currently had bilateral shoulder and lower back pain.  He became depressed about three years ago and had taken antidepressants since.

206     The plaintiff felt depressed, anxious and angry most of the time and had no enjoyment of life.  He had difficulty getting to and staying asleep and his energy was poor.  He had had problems with concentration for the last eighteen months and had suicidal thoughts.  He took an overdose and was admitted to Footscray and then Sunshine Hospital for five weeks and treated with tablets.  He still had suicidal thoughts but did not talk to anyone about them.

207     Dr Jager noted the report of Ms Roglic, psychologist outlining six treatments in the middle of 2018 as part of a mental health care plan.  He also read the NorthWestern Mental Health discharge summary of 17 April 2019. 

208     Dr Jager thought the plaintiff had emerging dementia of an unknown cause, possibly Parkinson’s disease, possibly spontaneous dyskinesia (the abnormal movements around the mouth) and had a Major Depressive Disorder with anxiety.  He diagnosed a depressive disorder secondary to a general medical condition. 

209     The plaintiff was not able to provide a sophisticated response to the question about the cause of his condition, but Dr Jager noted the medical records attributed the cause of his psychiatric hospitalisation and distress to the movement disorder and secondly pain. 

210     Dr Jager thought the predominant cause of the plaintiff’s presentation was dementia of unknown cause.  An important consideration was also the depressive disorder, which was largely a function of the neurological condition causing abnormal movements. A minor contributing factor to his depressive disorder was the pain from his physical injuries. 

211     Dr Jager considered the plaintiff unfit for his pre-injury job due to dementia, and if he did not have that, depression would also prevent him from undertaking his pre-injury job.  It was highly likely his capacity to undertake domestic tasks was also diminished by dementia. 

212     Overall, it was the plaintiff’s dementia and depression preventing him from working.  The work-related component of his psychiatric presentation was relevant only to the depressive disorder, and then only in a minor way.  Taking all other considerations away, the component of the depressive illness caused by the physical injury at work would not cause any incapacity for work.

Overview

213     There is no dispute the plaintiff injured his shoulders at work in August 2013 and suffered in injury to his lumbar spine in January 2014.  His claim in relation to these injuries was accepted.

214     While there were these specific incidents, the applications were described by counsel for the plaintiff as gradual process injuries over the course of employment.[44]

[44]T5

215     The primary submission on the plaintiff’s behalf was that if the plaintiff established a 40 per cent loss of earning capacity in any claimed impairment,  his pain and suffering application would also be successful as Forrest J set out in Acir v Frosster Pty Ltd.[45]  Any supervening condition, such as the plaintiff’s neurological problems, was relevant only in terms of assessment of damages.[46]

[45][2009] VSC 454

[46]T6

216     The plaintiff relied on the physical incapacity identified by Dr Slesenger, Mr Carey, Mr Jones and, to some extent, by Mr Simm.[47]

[47]T9

217     In terms of pain and suffering consequences, it was submitted the plaintiff’s pain in itself was serious, with counsel for the plaintiff conceding other consequences could not be disentangled from the neurological and other health problems from which the plaintiff suffered at the date of hearing.[48]

[48]T8

218     Somewhat consistent with this concession was the submission on the defendant’s behalf that the plaintiff’s neurological condition, in pain and suffering terms, “just about negates that application”, despite the decision in Acir.[49]

[49]Supra

219     There was no attack on the plaintiff’s credit in this case.  He gave evidence in the court room with the assistance of an interpreter.  This was a very difficult task for him as he is significantly affected by a number of health issues and his memory is poor, as a number of examiners have noted.

Loss of earning capacity applications  

220     As counsel for the plaintiff focussed primarily on the economic loss claims, I propose to consider that issue in general terms in relation to all applications before dealing in particular with the separate impairments in terms of pain and suffering consequences.

221     In addition to the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134 AB(38) (e)(i); and also

(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

222     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[50]

[50]See Barwon Spinners & Ors v Podolak (supra)

223     The Act provides that plaintiff must establish that as at the date of hearing, the effect of the incapacity for work, the subject of his compensable injury, is to give rise to a loss of earning capacity of 40 per cent.

224     The plaintiff therefore must establish that he would have kept working beyond sixty-five, but for his work injury, and that as a result thereof he has suffered a 40 per cent loss of earning capacity.

225     Counsel for the defendant submitted there was no economic loss as it was unrealistic to say the plaintiff, after the age of sixty-five, would have moved to another job when boning work was unavailable to him.[51]

[51]T9

226     Counsel for the plaintiff submitted the plaintiff’s age was irrelevant, the issue was his capacity.[52]  The shoulder injury incapacitated him from working as a boner effectively even though he continued doing light duties, and also the back injury totally incapacitated him from doing anything – particularly in the context of a man who had worked in heavy work all his life, and had very little capacity for anything else.[53]

[52]T65

[53]T58

Findings

227     The plaintiff is now aged seventy-one.  He ceased work in mid 2014, aged sixty-five.

228     The plaintiff’s evidence as to his work intentions was briefly set out in his first affidavit – “I had no plans to retire.  If it were not for the injury, I had intended to keep working for as long as I could.”  In his second affidavit, he stated that he “was planning to work into [his] seventies.”[54]

[54]T38 - confirmed in re-examination

229     The plaintiff agreed, as Mr Brady, former director of the defendant, deposed, that when he left the defendant’s employ in 2014, he was the oldest boner working for the defendant and that there was no one employed in that role over sixty-five.[55]

[55]T28 - similar history noted by Mr Jones

230     There was no challenge to this evidence.

231     I do not however attach any particular significance to Mr Brady’s evidence that in about early 2013 at the end of a shift, the plaintiff said, “I can’t do this anymore”.  The plaintiff denied having made this comment and Mr Brady was not cross examined.

232     The plaintiff did not indicate any other job he could undertake on leaving the defendant.  His skills are quite limited.  As counsel for the defendant asked rhetorically – “If not working as a boner, what was the plaintiff going to do?  There is no evidence about where he intended to work at sixty-five.”[56]

[56]T55

233     Further, there was no evidence of the availability of any jobs to meatworkers over 65. While the plaintiff may have had the theoretical capacity to work beyond 65, I am not satisfied on the available evidence that he would have been able to exercise that capacity as I am not satisfied he would have had a job, absent the injury.

234     Taking into account all the evidence, I am not satisfied on the balance of probabilities that the plaintiff would have continued working after retirement age of sixty-five and that he therefore would have been earning any income at the present time – aged seventy-one.

235     The present facts are somewhat similar to those in Cuturic v Spotless Facility Services[57] where the plaintiff was rising seventy-one at the date of hearing, had ceased work at sixty-seven and claimed she intended to work beyond seventy.  In that case, Judge Saccardo was not satisfied that any incapacity at the time the plaintiff ceased work operated as at the date of hearing and in the future to result in any loss to her as there was no evidence on the balance of probabilities that she would have continued in part-time employment after seventy as she claimed.[58]

[57][2018] VCC 889

[58]Cuturic (ibid) at paragraph [33(e)]

236     In a brief email post hearing, in response to the defendant’s reliance on Cuturic, counsel for the plaintiff submitted that Judge Saccardo’s  reasoning in that case “seemed to be at odds with the factual matrix and outcome” in Acir[59] which had been referred to without adverse comment by the Court of Appeal in Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop.[60]

[59]Supra; see also Herald & Weekly Times and Victorian WorkCover v Jessop [2014] VSCA 292 where Acir was referred to without adverse comment

[60]ibid

237     I reject this submission.  Neither Acir nor Jessop involved a worker beyond retirement age at the date of hearing.  As Forrest J said in Acir, the question to be answered in the context of s134AB(38)(f) is what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities at the time of injury.[61]

[61](Supra) at paragraph [175]

238     I am required to assess all the evidence that most fairly reflects the plaintiff’s earning capacity as at the date of hearing.    

239     In the present case, I am not satisfied that any incapacity at the time the plaintiff ceased work in 2014 operates at the present time or in the future so as to be productive of any financial loss to him.

240     Accordingly, the plaintiff has not established an entitlement to an order allowing him to commence a proceeding claiming damages with respect to the injury and incapacity the subject of his applications.

241     Therefore, the applications in relation to loss of earning capacity are dismissed.

Medical evidence regarding work capacity

242     However, if it was accepted the plaintiff has suffered a loss as he would have continued working, the evidence is not clear as to what caused him to cease work and what condition/s are presently responsible for his current incapacity. In those circumstances, I am not satisfied either his shoulder or his back condition alone have resulted in a 40 per cent loss of earning capacity as at the date of the hearing.

243     In Peak Engineering & Anor v McKenzie,[62] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[62]Supra

244     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ...  at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[63]

[63]At paragraph [1]

245     The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[64]

[64]At paragraph [2]

246     Therefore, I must be satisfied not only that the consequences of the particular compensable injury alone are serious but have to exclude the role played by non-compensable conditions predating the compensable injury. 

247     The plaintiff deposed that he stopped working and was no longer able to work because of both his shoulder and back pain.[65]

[65]First affidavit; T27

248     There is no record in the plaintiff’s clinical notes, either Sunshine or St Albans, of him having to stop work after the September 2014 heart surgery because of either his shoulders or back condition.

249     As early as August 2014, Dr Sleaby thought it was unlikely the plaintiff, then aged sixty-five, would ever return to the workforce due to “multiple chronic conditions”. Subsequent treaters at St Albans, when commenting on the cause of the plaintiff’s incapacity for work, have “bundled together” the plaintiff’s compensable conditions with his major depressive illness and in more recent times, his significant neurological problems.[66]

[66]T49

250     Treating shoulder surgeon, Mr Bonomo, made no comment as to the plaintiff’s work capacity or the contribution of any shoulder injury thereto when he saw him in the first half of 2014.   

251     While Dr Soliman saw the plaintiff only in relation to his lower back in September 2014 – just before the heart surgery – the plaintiff did not complain of significant back pain, describing his pain as intermittent ranging from 3-7 out of 10. 

252     Dr Soliman thought the plaintiff was then fit to return to full-time pre-injury modified duties which were light, with a maximum lifting limit of 6-8 kilograms, self-paced, which did not require prolonged sitting or standing, and where his position could be altered as needed.  Noting the upcoming heart surgery, in his view, the plaintiff’s incapacity was related to his heart complaint and not to his back or shoulder.  He considered the plaintiff could return to full hours and assessed alternate duties.

253     Mr Shannon, in his November 2015 AMA assessment, did not comment on the plaintiff’s work capacity, noting significant shoulder restrictions, particularly the left.

254     Mr Clive Jones, orthopaedic surgeon, reported on examination in March 2015 that both shoulders were said to be equally painful and somewhat stiff.  He noted the defendant had a policy of mandatory retirement at age sixty-five for all boning and labouring positions and therefore the plaintiff would appear to be unemployable on that basis.  Causes of the shoulder condition were multiple and there was an age and work relationship.  He considered the plaintiff had a light work capacity in theoretical terms.

255     In 2020, Mr Grossbard thought, with his bilateral shoulder and ongoing back problems, there was a negligible likelihood of the plaintiff returning to paid employment, further diminished by lack of computer skills and English.  Mr Simm did not express a view on this issue. 

256     Dr Slesenger is the only examiner who separately attributes total incapacity to each shoulder and the lower back.  He was simply asked whether each impairment alone would have prevented the plaintiff from working in suitable employment, and gave an identical answer in respect of each impairment without giving any explanation for his conclusion or analysis of the particular work duties responsible.  He considered there was no residual cardiac impairment but conceded that issue fell outside his expertise.  He therefore did not comment on any role played by cardiac issues in the plaintiff’s incapacity for work.  He had no medical evidence available to him from the plaintiff’s treaters at the tine he ceased work.

257     The plaintiff discussed open heart surgery with Dr Le in October 2013.  Catheterisation was undertaken in February 2014.  Dr Le noted the following month that the plaintiff was confused about whether to have valve surgery, having attended for review of aortic stenosis.  Heart surgery was undertaken in September 2014, following which the plaintiff did not return to work.

258     Mr Hoang, physiotherapist, reported that the plaintiff’s rehabilitation from his shoulder condition was affected by his heart surgery. 

259     In September 2014, Dr Soliman commented that the plaintiff was then off work because of heart surgery.[67]

[67]T52 – this comment could also mean the plaintiff was not at work because of the upcoming heart surgery

260     There is no evidence from any of the plaintiff’s general practitioners as to the role, if any, played by his cardiac condition in his decision not to return to work after that surgery.

261     There is no medical evidence as to the role, if any, played by the plaintiff’s heart condition in his current presentation or his capacity for work.  The plaintiff simply deposed that he had made a good recovery from the surgery.

262     There is no evidence from the plaintiff’s treating cardiologist in circumstances where the plaintiff had ongoing reviews of his heart condition in 2017.   He also had a stroke in 2018. 

263     Dr Ansari’s note of 11 August 2020 “had appointment with cardiac surgeon ...  valve replacement ... surgeon was happy with how things were going …  needs referral faxed to Alistair Royce,” does not address this issue at all. 

264     The medical evidence is also silent on any role played in the plaintiff’s incapacity for work as a result of his other comorbidities – hypertension and diabetes.[68]

[68]T46

265     The plaintiff also has significant psychiatric issues, not the subject of this application.  Psychiatrist, Dr Hayman, thought the plaintiff was incapacitated for work as a result of his depressive condition alone.  Dr Jager thought the plaintiff was unfit for work by reason of both his dementia and depression related to his neurological condition.

Pain and suffering  

266     Counsel for the plaintiff summarised the plaintiff’s pain and suffering applications as follows:

“This is a man with a pretty terrible life.  There is no question about that.  We’ve seen him, we know that he has got a serious neurological issue which prevents him from doing just about everything.  ...  He can’t go fishing ...” –

and he was not really cross-examined in relation to that –

“He’s got obviously a very static life.  He ...  can’t go out and see his friends ...  In those circumstances, what he doesn’t need when he is sitting in his chair doing nothing – is ...  pain.  But he’s got pain, and he actually wasn’t even challenged about that.  And he has complained about it to all the doctors”

as the clinical notes indicate.[69]

[69]T62

267     In this situation:

“...  what [the plaintiff] doesn’t need is pain.  The experience of pain where you’re not able to do things which distract you ...  becomes ...  a very significant and certainly more than considerable or marked consequence.”[70]

[70]T63

Shoulder(s) impairment

268     The consensus of medical opinion is that as a result of his boning work, the plaintiff suffered rotator cuff impingement. 

269     I accept that this work-related injury continues to contribute to the plaintiff’s bilateral shoulder condition, although Mr Simm considered the total thirty-four years’ work as a boner must be implicated and that the work duties with the defendant could have been responsible for some acceleration of pre-existing degenerative changes. 

270     While the application initially related to a bilateral shoulder impairment, counsel for the plaintiff conceded it was not permissible to run the shoulder application on this basis as the circumstances of this case did not come within a very small category of cases where the plaintiff suffered injury as a result of a bilateral activity.[71]

[71]T2; Lexa v Transport Accident Commission [2019] VSCA 123; T59

271     On that basis, counsel emphasised the right shoulder – the plaintiff’s dominant arm.[72]  Further, it was submitted there was affidavit evidence and medical evidence delineating the consequences of each shoulder injury.[73]  The simple fact was the plaintiff had ongoing significant pain in each shoulder.[74]

[72]T2; Dr Slesenger’s report

[73]T3; Dr Slesenger

[74]T63

272     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[75] the evidentiary basis of the pain assessment will ordinarily comprise, what the plaintiff says about the pain both in court and to doctors, what he does about the pain (medication, rest and medical treatment), what doctors say about the extent and nature of the pain and what the evidence shows about the disabling effect of the pain.   

[75](Supra) at paragraph [11]

273     In his first affidavit, the plaintiff mentioned that his shoulder symptoms were settling when he injured his back in January 2014.

274     In his most recent affidavit, the plaintiff described shoulder pain that varied in intensity, was intermittent and unpredictable.  Left shoulder pain was not as bad as right.  He had good and bad days and his sleep was affected by his shoulder pain.

275     When seen for his low back by Dr Soliman in September 2014, the plaintiff did not mention shoulder pain with the doctor simply noting the plaintiff had injured his shoulder a year ago, following which he had been on light duties. In March 2015, he told Mr Jones both shoulders were equally painful and somewhat stiff. 

276     In more recent times, the plaintiff has given a range of descriptions of the severity of his shoulder pain.  When seen by Mr Simm in September 2020, he described constant right/left shoulder pain that has not improved since he ceased work.  In November last year, he reported to Dr Slesenger residual right and left shoulder pain constant severe and associated with restricted range of movement.

277     However, in June 2020, Mr Grossbard noted intermittent shoulder pain equivalent on both sides.  The plaintiff, in July last year, told Dr Hayman of bilateral shoulder pain on and off, with full range of movement but with pain. 

278     While the plaintiff’s experience of pain is subjective, I am required to objectively assess that subjective experience and decide whether it objectively meets the test of serious injury.

279     Although the plaintiff continues to suffer from episodes of pain in both shoulders, the right more than the left, and will continue to do so, I am not satisfied that he continues to suffer a continuous level of substantial pain.  Confirmatory of this is the limited shoulder treatment he has undergone, particularly in recent years.[76]

[76]Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at paragraph [48]

280     The plaintiff saw Dr Parboo in March 2013, when he noted the plaintiff had a sore right shoulder since last week – “no injury but work involves boning”.  The next attendance was with Dr Lu Ve on 21 August that year for review of left shoulder complaint.  Ultrasounds were ordered of both shoulders and the plaintiff was referred to physiotherapist, Mr Hoang. 

281     The plaintiff saw specialist, Mr Bonomo, in May 2014, who recommended right shoulder surgery and injections.  These suggestions were not taken up by the plaintiff.  The last specialist review was in June 2014. 

282     While it was submitted the plaintiff did not undergo the suggested shoulder treatment because he had other significant health issues to deal with,[77] this treatment was recommended before the onset of his serious neurological condition. 

[77]T60

283     Save for a short period of further physiotherapy in March 2015 for the left shoulder, the only treatment for both shoulders has been Panadeine Forte two to three times a week, medication which the plaintiff also takes for low back pain.

284     While no work consequences were relied upon in terms of pain and suffering for either the shoulders or back, the plaintiff was off work for three weeks after the August 2013 injury.  He then returned to light duties on a part time basis.  He ultimately ceased work due to a lower back injury suffered in January 2014 when undertaking very light lifting duties.  There was a brief attempt to return to work in June, but the plaintiff has not worked since heart surgery in September 2014, when aged sixty-five. 

285     Taking into account all the evidence, I am not satisfied that the plaintiff’s left and or right shoulder pain, the only consequence relied upon – even in a man  in the situation his counsel described – is such as to meet the statutory test of seriousness.

286     Accordingly, the right and left shoulder applications are dismissed. 

Lumbar impairment

287     The plaintiff’s lumbar condition has attracted a number of similar diagnoses –  soft tissue injury, aggravation of degenerative disease of lumbar spine, musculoligamentous and discogenic injury, and a mechanical issue due to degenerative back disease. 

288     There is no dispute as to a compensable back injury suffered in January 2014.  In issue is the role that any back injury during the course of employment plays in the plaintiff’s current presentation, with Mr Simm seemingly sharing Dr Soliman’s view that there was only a temporary aggravation in the light lifting incident of January 2014.[78]

[78]T53

289     Counsel for the defendant submitted that the plaintiff had had a long history of low back pain[79] and was on light duties when he hurt his back in what was really a trivial incident, as Dr Soliman described. There was certainly a problem sufficient for the plaintiff to go to the doctor about his back in 2013. He had a lumbar x-ray before the January 2014 incident. In those circumstances, when one looked at the January 2014 incident, it had to be an aggravation within Petkovski v Galletti.[80]

[79]Mr Simm described an “extensive” history of previous back pain

[80][1994] 1 VR 436

290     Counsel for the defendant, however, agreed that if the plaintiff was doing full-time heavy work and not having any treatment at the time of the January 2014 incident, the Petkovski analysis “gets watered down”, because looking at the plaintiff immediately before 2013, on the face of it, his back was asymptomatic and he was doing heavy work.[81]

[81]T45

291     Further, counsel agreed there was no evidence of any treatment for back-related issues between 2008 at the end of chiropractic treatment and complaints in 2013.[82]

[82]T58

292     While it may be described a gradual process case, before January 2014, there is no evidence that any back problems the plaintiff experienced affected his capacity to do heavy work.

293     However, following what seems on any view to be a very minor lifting incident in January 2014 when the plaintiff was already on light, part-time duties for his shoulder, he went off work until a short return in June and has not returned to work after the September 2014 heart surgery.

294     In his most recent affidavit, the plaintiff described constant back pain and radiating into the left hip.  Descriptions of pain to various examiners have varied – usually a dull pain but occasionally severe and no radiation to Mr Grossbard in mid-2020, constant low back pain to Dr Hayman in mid-2020 and residual lower back pain that is severe and constant radiating to the right buttock to Dr Slesenger in November 2020.  In September 2020, the plaintiff told Mr Simm he had intermittent pain every day but may be severe, limiting activity more to the right.  

295 Despite complaints of constant and at times severe low back pain, treatment for back pain has been limited to chiropractic treatment from mid-2015 to mid-2016 and in early 2019,[83] and physiotherapy in late December 2018. There has been no specialist referral and little mention of back complaint in the treating general practitioner’s notes.

[83]First affidavit

296     The only ongoing treatment has been Panadeine Forte two to three times a week which the plaintiff also takes for shoulder pain. No stronger painkilling medication has ever been prescribed.

297     In all the circumstances, I am not satisfied that the plaintiff’s experience of lumbar pain can be properly described as “serious”[84] under the Act when compared to the range of possible impairments.

[84]Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at paragraph [63]

298     Accordingly, this application is also dismissed.

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