Matrah (né Almatrah) v Victorian WorkCover Authority
[2017] VCC 976
•27 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03230
| MICHAEL MATRAH (né MOUSTAFA ALMATRAH) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 23 June 2017 | |
DATE OF JUDGMENT: | 27 July 2017 | |
CASE MAY BE CITED AS: | Matrah (né Almatrah) v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 976 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – chronic pain – injury to left shoulder – pain and suffering damages only – whether physical injury was caused at work – whether physical injury satisfies the threshold test – whether the aggravation of the left shoulder condition was sufficient at work to satisfy the threshold test – whether the plaintiff has disentangled the pain and suffering consequences from the physical injury to his lower back
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66;
Judgment: Application for serious injury certificate for pain and suffering in respect of the left shoulder injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W P Harrison QC with Mr J J Fitzpatrick | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr W A Middleton QC with Ms S C Bailey | Lander & Rogers |
HIS HONOUR:
Introduction
1 This is an application brought by Originating Motion dated 2 July 2015 in which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by him arising out of, or in the course of, his employment with his employer, The Good Guys (“the employer”), on 4 March 2009.
2 The application made by the plaintiff in this case relies on a physical injury to his left shoulder as a result of his work. The plaintiff is left hand dominant. The plaintiff seeks leave to bring proceedings for pain and suffering damages only in respect the physical injury to his left shoulder.
3 The following evidence was adduced during the hearing and subsequent submissions:
·The plaintiff gave evidence and was cross-examined
·The plaintiff tendered the following documents:
§Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 6 – 21 inclusive; pages 49 – 53 inclusive and pages 54 – 73 inclusive
§Exhibit B, photograph of the plaintiff at football
§Exhibit C, an x-ray of the plaintiff’s left shoulder reported on 9 May 2008.
·The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1 – 62 inclusive and page 81
§Exhibit 2, Epworth Hospital record dated 27 December 2011
§Exhibit 3, Northern Health record dated 2 September 2008
§Exhibit 4, DVD film of the plaintiff’s wedding day; and
§Exhibit 5, bundle of photographs of the plaintiff from Facebook
§Exhibit 6, bundle of photographs of the plaintiff during activity
§Exhibit 7, Certificate of Capacity signed by Dr Peter Bailey at the Northern Hospital dated 4 March 2009
§Exhibit 8:
§ Email from Mr Middleton of Counsel to all parties and the Court dated 23 June 2017
§ Report of an x-ray of the plaintiff dated 2 September 2008
§ Northern Health Emergency Department record dated 2 September 2008
§ Letter from Mr Steven Csongvay dated 17 March 2009 to the Victorian WorkCover Authority.
4 It is to be noted that exhibit 8 was tendered on 23 June 2017, the day after the final submissions had been completed at Court. Exhibit 8 was the subject of a further listing of the hearing so that submissions from both parties could be taken in respect of the documents referred to in exhibit 8.
5 Mr Middleton, on behalf of the defendant, identified the issues in this application as follows:
(i) Did the plaintiff injure his left shoulder at work or was it injured at some other event?[1]
[1]Transcript (“T”) 5
(ii) The plaintiff is required to disentangle the consequences of the injury to his back from the alleged consequences of the injury to his left shoulder;[2]
[2]T7
(iii) Do the consequences relating to the left shoulder injury satisfy the range of consequences to the extent to satisfy the statutory test for serious injury? This range argument includes whether the aggravation to the plaintiff’s left shoulder in an incident at work over and above a pre-existing injury to his left shoulder;
(iv) The credit of the plaintiff.
Statutory scheme
6 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”. In this case, the loss of body function is to the plaintiff’s left upper limb and left shoulder.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of, or in the course of, or due to the nature of, his employment on or after 20 October 1999;[3]
[3]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
[4]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) In conformity with Barwon Spinners,[5] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[5]Supra
8 I am required by the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
9 The plaintiff was born in 1987. He is now thirty years old. The plaintiff was educated to Year 12 at Parade College in Bundoora. He commenced an accounting course and pursued it for one year. After that period, he ceased that study.[6]
[6]PCB 7
10 After completing his accounting studies, the plaintiff commenced working as a concreter for a number of years. In 2009, he commenced work with the employer.[7] In 2010, the plaintiff’s employment with the employer was terminated for reasons other than the injury to his shoulder.[8] In 2011, the plaintiff worked as a self-employed concreter and changed that employment in 2012 to being a concrete cutter. He worked for two employers as a concrete cutter, one being Super Cut[9] and the other, GM Concrete Cutting.[10] The plaintiff injured his back on 5 November 2014 whilst working in concrete cutting employment.[11]
[7]PCB 8
[8]PCB 9
[9]T18
[10]T19
[11]T20
11 Subsequent to the injury to his back, the plaintiff has married. The plaintiff now works full time in the capacity of an occupational health and safety officer at his current employer.
Injury with the employer
12 The plaintiff commenced his employment with the employer in Thomastown on 7 October 2008. He was engaged as a full-time storeperson.[12]
[12]PCB 8
13 The plaintiff described his injury in the following terms:
“I suffered injury to my left shoulder in the course of my employment with the Defendant (sic) on 4 March 2009, whilst pulling a trolley with two dishwashers loaded on it. I felt a popping sensation in my left shoulder. I was in a lot of pain straight away.
I was driven by a co-worker to the Northern Hospital following the accident. I had an x-ray performed.
I was referred to see an orthopaedic surgeon, Mr Steve Csongvay.
Following a consultation with Mr Csongvay, he recommended that I have left shoulder surgery.”[13]
[13]PCB 8, paragraphs [11], [12], [13] and [14]
14 On 7 April 2009, the plaintiff was operated on by Mr Steve Csongvay, orthopaedic surgeon, at the Masada Hospital. The procedure was a left AC joint excision arthroplasty and reconstruction to the left side.
15 The plaintiff stated that he returned to full-time work on light duties approximately three months after the left shoulder operation.
16 In his report dated 27 April 2009, Mr Csongvay stated:
“I reviewed Moustafo (sic) today. He is now three weeks post op left acromioclavicular joint excision arthropathy and stabilization. He has healed up very well. He is moving his shoulder quite comfortably but obviously he has still got a bit of healing left to do. I believe that as (scil at) the end of this week he will be ready to go back onto light duties and I plan to review him in a month[’]s time to see how he is progressing. I would expect that it would probably be about three months before he is ready to return to unrestricted duties. So far however, I think he is progressing well and I will let you know how he gets on.”[14]
[14]PCB 59
17 Mr Csongvay reviewed the plaintiff in September 2013. On examination, Mr Csongvay found that the plaintiff maintained a full active range of motion in his left shoulder and had mild subacromial impingement. He had normal rotator cuff power.[15]
[15]PCB 60
Causation
18 The starting point and analysis of the injury to the plaintiff’s left shoulder is May of 2008. It is accepted by the parties that the plaintiff was involved in a motorcycle accident in May of 2008 and was injured. He attended at the Northern Hospital and was x-rayed. He was discharged from the hospital with his left arm in a sling. He had a couple of days off work as a result of that incident.
19 The report of the x-ray examination on 9 May 2008 states:
“Alignment of the left shoulder joint is normal. There is no evidence of fracture in the region of the left shoulder.
Slight cortical irregularity is seen at the tip of the scapula. An undisplaced fracture in this region cannot be excluded. Clinical correlation for the maximal point of tenderness would be helpful.”[16]
[16]Exhibit C
20 Mr Harrison QC, in his opening, set out the agreed position between the parties as follows:
“It appears from subsequent radiology that there was probably an unidentified clavicle fracture which occurred in that incident which was revealed by later radiology to have healed.”[17]
[17]T2, L11-14
21 It is clear that the plaintiff had some significant injury to his left shoulder in the motorcycle accident of May 2008.
22 The next relevant event is on 2 September 2008. The history given by the plaintiff as to why he attended the hospital on 2 September 2008 is partly contradictory. In his evidence, he was asked the following questions:
Q:“What caused you to go back to hospital in September, the day before your right shoulder injury?---
A:A flare-up, ltfelt some pain in my shoulder, I was at the shopping centre across the road from the hospital, so I walked over and ...
Q:So you didn’t go to a doctor, you went to the emergency section of the hospital?---
A:That’s correct.
Q:The Northern Hospital, was it?---
A:That’s correct, from memory, yeah.”[18]
[18]T12, L16-24
23 Later, when the plaintiff was being further cross-examined about his attendance at the Northern Hospital on 2 September 2008, the following evidence was given:
MRMIDDLETON:
Q:“I’ll put to you what the Northern Health record is, it’s your attendance on 2 September 2008, so that’s the day before you have the right shoulder motorcycle event. It reads this way, ‘thank you for reviewing Mustafa. Presented at three months post motorcycle accident with ongoing left shoulder pain and increase overnight (felt a ‘crack’).’ Did you feel a crack?---
A:Yes.
Q:‘On examination and x-ray AC joint luxation tossy II [II don’t know what that means] sling and advise analgesia.’ The event that saw you in there on 2 September came about because you felt a crack in the left shoulder, 2 September 2008; is that right?---
A:That’s right. I woke up in the middle of the night.
Q:So that would indicate that you’re continuing to have problems with your shoulder through May 2008 through to September 2008?---
A:Yes.
Q:And beyond?---
A:Not beyond.
Q:So, it suddenly righted itself after this and there was no problem?---
A:No, I never said there was no problem, it just got - to my - what I felt like that it was better.”[19]
[19]T41, L8-29
24 The document and notation that was being put before the plaintiff at that time was exhibit 3 in the hearing.
25 At that stage of the proceeding, the x-ray report taken in September 2009 was not in evidence. At the request of the parties, this matter was re-opened on 23 June 2017. On that day, exhibit 8 was tendered in evidence and further submissions were heard from the parties. Relevantly, an Emergency Department record from the Northern Hospital dated 2 September 2008 and prepared by Dr Anita Lekx was part of that exhibit 8. The notes made by Dr Lekx state as follows:
“Hx / [History] Fall with motorcycle 3/12 ago. Ever since pain le[ft] shoulder. XR@TNH. NAD.
Last night rolled onto le[ft] side in bed. Felt a ‘crack’ in le[ft] shoulder and pain increased.
Noticed deformity of shoulder.
O/E [On Examination] Deformity. ?AC joint luxation.
Tenderness around humerus head + AC joint.
Movements arm unimpaired but pain + neurovasc ok.
Dx/ [Diagnosis] ?AC joint luxation
?(Sub)luxation shoulder.
P/for XR [x-ray].
XRAC joint luxation. Tossy 2.
P/Sling
Rest + analgesia.
review sports injury clinic.”[20]
[20]Exhibit 8
26 As a result of the examination by Dr Lekx, the plaintiff was sent off for x-ray to his left shoulder. The x-ray performed on 2 September 2008 reported as follows:
“X-RAY OF LEFT SHOULDER AND LEFT AC JOINT (Series 12)
Report
The shoulder is united. No fracture or bony destructive lesion demonstrated in the shoulder. There is dislocation of the left AC joint consistent with a Grade-III AC joint injury.”[21]
[21]Exhibit 8
27 The final note from Dr Lekx is that the plaintiff was to be reviewed at the Sports Injury Clinic. This is the entry which was part of exhibit 3 in the hearing. The plaintiff left hospital with his left arm in a sling and was advised to take analgesia for the pain.
28 On the very next day, 3 September 2008, the plaintiff had a further motorcycle accident where he stated that he injured his right shoulder. He gave evidence that he attended at the Northern Hospital following that accident.[22]
[22]PCB 7, paragraph [8]
29 The plaintiff commenced employment with the employer on 7 October 2008. He remained in that employment until he allegedly injured his shoulder on 4 March 2009. The plaintiff stated that when he attended the Northern Hospital following his work injury, that he was x-rayed. There was no evidence as to the result of the x-rays taken of the plaintiff’s left shoulder in March of 2009. Mr Csongvay, in his reports, does not refer to the actual x-ray taken on 4 March 2009. In his letter dated 17 March 2009 to the WorkCover officer at the employer, Mr Csongvay noted as follows:
“Mr Mustafo (sic) Almatrah has recently sustained a grade III AC joint injury. He will require an urgent reconstruction.
I would be most grateful if you could approve all hospital and medical costs associated with this procedure and please fax your approval to my rooms as soon as possible on … .”[23]
[23]Exhibit 8
30 It is noted that the Grade 3 AC joint injury was shown on the x-ray dated 2 September 2008.
31 Mr Csongvay performed the left AC joint excision, arthroplasty and reconstruction on the plaintiff’s shoulder on 7 April 2009. In his operation report, Mr Csongvay noted:
“Grade 5 AC joint dislocation found with joint irreducible. Decision made to do an excision arthroplasty.
Outer end of clavicle excised, scar tissue debrided. Joint reduced.
Joint further stabilised using Surgilig ligament graft tied around coracoid and looped around clavicle. Held in place with screw and washer. Stable reduction. No impingement. Full shoulder ROM.
… .”[24]
[24]PCB 54
32 It is not clear from the letter of Mr Csongvay to the plaintiff’s employer, nor the two medical reports prepared by him for the purposes of this case, whether Mr Csongvay had considered the initial x-ray taken on 2 September 2008 and compared it with any radiological findings made immediately after the work accident on 4 March 2009. Mr Csongvay has not been asked to differentiate between the previous condition of the plaintiff’s left shoulder and the condition of the shoulder immediately after the alleged work accident. It is accepted that the plaintiff was able to attend his work between October 2008 and March 2009 and perform his duties as a storeman. However, it is unclear from the evidence whether the plaintiff had suffered a new injury in March 2009 at work or if it was a recurrence of the injury that he presented with at the Northern Hospital on 2 September 2008.
33 I am not satisfied, on the basis of all of the medical evidence and the evidence of the plaintiff in this case, that the work injury as alleged was the cause of his left shoulder impairment. Rather, at its highest, the evidence for the plaintiff would establish that it is a reoccurrence of the initially diagnosed condition of his shoulder on 2 September 2008.
34 I note that none of the medical examiners have had the advantage of seeing the x-ray report for 2 September 2008 and consequently, their opinions in relation to the plaintiff’s condition and the cause of his condition to his left shoulder are not fully informed by the facts of this case.
Aggravation of injury to the left shoulder due to the work incident in March of 2009
35 In his opening of these proceedings, Mr Harrison, on behalf of the plaintiff, stated that the injury to the plaintiff’s shoulder in March of 2009 was a frank injury. Mr Harrison referred to the medical report of Mr Michael Shannon, orthopaedic surgeon, suggesting that there may be an aggravation of a previous injury to the left shoulder in May of 2008. Mr Harrison specifically disavowed that as being part of the plaintiff’s case.
36 After the tender of exhibit 8 which included the Emergency Department notations of the Northern Hospital and the report of the x-ray of the plaintiff’s left shoulder on 2 September 2008, Mr Harrison made further submissions to the Court.
37 The effect of the submissions was to change the plaintiff’s case from being a frank injury in March of 2009 to being an aggravation of a pre-existing injury to the left shoulder. Mr Harrison submitted that the consequences to the plaintiff’s condition after the 4 March 2009 incident are the consequences that are to be assessed when deciding whether or not the injury reaches the statutory test.
38 When Mr Harrison made the changed submission in relation to an aggravation case rather than a frank injury case, I queried what I was to make of the fact that the September 2008 radiology was not before the Court at the time of conducting the case. Mr Harrison responded:
“We all have to ride the bumps, Your Honour.”[25]
[25]T5, L19 (Transcript of 23 June 2017)
39 Mr Michael Shannon is the only medical examiner who has raised the prospect of an aggravation of an injury to the plaintiff’s left shoulder. In his report dated 24 September 2012, Mr Shannon states:
“This was accepted as work related, although in fact the certificate of his general practitioner indicates that he had a previous similar injury to his shoulder in October 2008 and the work incident may well have been purely an aggravation of a pre-existing injury. The situation is further complicated by the MRI Scan reporting that he had a previous fractured clavicle.”[26]
[26]DCB 3
40 Mr Shannon had described the MRI scan as follows:
“An MRI Scan performed in December 2011 following the recent flare up of symptoms is reported to show a previous fracture of the distal clavicle with mild degeneration of the acromioclavicular joint.”[27]
[27]DCB 3
41 Mr Shannon was never shown the x-ray report from 2 September 2008 which identified a Grade III dislocation of the acromioclavicular joint.
42 I have read and taken note of all the other medical practitioners who have seen the plaintiff in respect of this case. Every one of those medical practitioners have relied upon the history given by the plaintiff that the frank injury occurred to his left shoulder on 4 March 2009. None of those medical practitioners were advised of the previous x-ray finding on 2 September 2008, setting out the dislocation to the plaintiff’s left AC joint. Consequently, none of the orthopaedic-related medical examiners, or treating doctors, have considered and offered an opinion about, the level of aggravation of the injury to the plaintiff’s left shoulder as a result of the 4 March 2009 work-related incident. This is highly unusual in applications such as this and consequently, I do not propose to go through each of the medical practitioners’ opinions and their observations of the plaintiff. The most significant observation is the examination by the treating surgeon who found that the plaintiff had a full range of movement post surgery in April 2009.
43 After surgery, the plaintiff was able to return to his work with the employer. Initially, he was on light duties and continued on those light duties, returning to a different type of employment with the employer. In 2010, the plaintiff was dismissed from his employment. The reason for his dismissal had nothing to do with his left shoulder injury.
44 The plaintiff’s evidence is that he had changed his sport activity from martial arts to boxing prior to May 2008.[28] He was training in the period between May and November 2008 but had no fights. His evidence was that he would train for three to five hours in a gymnasium. The plaintiff conceded that he had left shoulder symptoms after September 2008.[29] He says that he continued with his boxing training between September 2008 and his work incident in March of 2009.[30]
[28]T11
[29]T13
[30]T14
45 The plaintiff gave evidence that after his surgery in April of 2009, he had five or six boxing fights.[31] The plaintiff’s evidence is to be compared with the statement made in his affidavit dated 13 June 2017 where he said that after his left shoulder injury that in September 2009, he did attempt one more boxing amateur fight which he was fortunate enough to win.[32]
[31]T15
[32]PCB 15, paragraph [6]
46 Later on in his evidence, the plaintiff stated that he had had seven fights after surgery and the last of those fights was in September 2009.[33] He confirmed that between April 2009 and September 2009, a period of some five months, that he had five or six fights. The plaintiff stated in his evidence that the boxing matches were three rounds of two minutes each round.[34]
[33]T36
[34]T75, L10
47 In the course of his evidence, the plaintiff said that he could check his fight history with the VABA through their records. In the course of the hearing, the plaintiff was given the opportunity to access those records, but those boxing records were not forthcoming and did not form part of the evidence in this case. The only evidence about the plaintiff’s boxing career subsequent to his surgery in April of 2009 is the evidence from him. In summary, that evidence is that the plaintiff has had five or six boxing fights in that period between April 2009 and September 2009. The plaintiff is adamant that he was not boxing at any time after September 2009. It is to be noted that the plaintiff was a “southpaw” boxer, which means he uses his left arm and shoulder more dominantly than his right side.
48 The plaintiff, subsequent to his surgery, returned to playing football. The plaintiff’s evidence was that he had played Under 19s football but had ceased doing that and taken on martial arts and boxing as his sport. In the course of his evidence, it became clear that the plaintiff had returned to playing football and did so in the year of 2010.[35] He stated that he had played approximately six games before injuring his ankle in June of 2010. He ceased playing football after the injury to his ankle. The plaintiff had previously had an ankle injury in 2002 and foot problems in 2005.[36]
[35]T53
[36]PCB 7
49 The plaintiff relied upon a photograph taken of himself in his football gear with his left shoulder bandaged up in support of the fact that he played football[37]. The fact that the plaintiff was able to, and wanted to go back and play football in the season of 2010, the year immediately after his left shoulder surgery, is indicative of the level of recovery he had made as a result of the surgery. The reason that the plaintiff ceased playing football was due to a recurrence of his ankle injury. I note that in evidence, when challenged about this, the plaintiff stated that he returned to training after his ankle injury but the injuries were “too much”. He stated that the left shoulder was still a problem. I do not accept the plaintiff’s evidence that the shoulder injury was the reason he ceased playing football but rather it was to do with his ankle injury.
[37]Exhibit B
50 One of the consequences of the shoulder injury that the plaintiff was relying upon was the taking of medication to deal with his level of pain. The evidence about the plaintiff’s ingestion of medications for pain relief is contradictory. In his affidavit dated 27 February 2015, the plaintiff stated as follows:
“In relation to my left shoulder, I take medication, including Voltaren, Nurofen, Panadol and Panadeine Forte. I take Panadeine Forte if I have flare ups of bad pain.”[38]
[38]PCB 11, paragraph [34]
51 In his evidence, the plaintiff agreed that prior to 5 November 2014, when he hurt his back, he was not taking any medication. He was not taking medication for his shoulder.[39] The plaintiff agreed that after his shoulder surgery, but before his back injury, he was able to work as a concreter and concrete cutter with GM Concrete Cutting without taking medication.[40] The plaintiff agreed that he did not take any medication for his shoulder injury prior to the occurrence of his back injury.[41]
[39]T21
[40]T27
[41]T32
52 In conclusion, I do not accept that the plaintiff was taking any medication for pain relief in respect of his left shoulder injury. The plaintiff continued to work during the period from April 2009 through until November 2014 without taking medication for his left shoulder.
53 The plaintiff’s evidence is that he suffers from pain in his left shoulder. I accept that he has some pain in his left shoulder currently and has suffered it intermittently from time to time since the time of May 2008. It is difficult, on the state of the evidence, to determine the level of pain that is directly related to the work incident in March of 2009. It is clear on the evidence, the plaintiff had a dislocated acromioclavicular joint prior to his work injury in March of 2009. The other matter that is relevant in assessing the consequence of pain to the plaintiff is what he has done about it. It is clear, on the evidence, that the plaintiff has not taken any medication directly for the alleviation of pain in his left shoulder. He has been able to continue work in heavy work of concreting and concrete cutting up until the time of his back injury whilst carrying out that employment. In particular, the plaintiff is a person who can tolerate pain. The evidence in this regard is as follows:
Q: “Do you think you’ve got a strong pain tolerance or not?---
A: I do. I was an ex-fighter, so I can take a bit of pain.”[42]
[42]T59, L20-21
Credit of the Plaintiff
54 The plaintiff’s credibility was put in issue by the defendant. In particular, the defendant relied upon DVD film of the plaintiff at his wedding. The defendant obtained this film from Facebook. The plaintiff was seen on the film to be enjoying his wedding day and engaging in dancing with his wife at the reception. The defendant relied upon this dancing and other movements made during the course of the proceedings to indicate that the plaintiff had a full and free range of use of his left arm. The wedding was held in 2015.
55 The plaintiff gave evidence that at the wedding, he was attended by his general practitioner, who administered a pain-relief injection to his back. He said this injection enabled him to move freely and dampen down the level of pain that he was suffering at his wedding.
56 I am mindful of the pronouncements by the Court of Appeal in Church v Echuca Regional Health[43] relating to courts relying upon surveillance film to make an assessment of a plaintiff’s credibility. In this case, I do not accept that the film of the plaintiff on his wedding day indicates that he can do any more or less activity than has been demonstrated by his ability to work in various employments subsequent to his injury in March 2009, combined with his subsequent sporting activities of boxing and football.
[43](2008) 20 VR 566
57 The defendant also relied upon still photographs taken from the plaintiff’s Facebook page relating to other activities such as collecting firewood and boating at Eildon Weir. The plaintiff is also seen in poses with children. His nieces and nephews are being held aloft by him. I do not accept that these still photographs which were part of exhibits 5 and 6, form a basis for the challenge to the plaintiff’s credibility.
58 I accept that the plaintiff was doing the best he could to give a truthful and honest response to questions relating to his injury. It is fair to say that he was focused in his answers on ensuring that the most positive answers relating to his left shoulder were given. I do not accept that that was because of any deliberate attempt by him to obfuscate or fabricate any evidence. I take the view that the plaintiff was a victim of the passing of time between the events in 2008, 2009 and subsequently and have tended to blur his recollection of events. Consequently, he has tended to focus on events that have been brought to his attention relating to his left shoulder injury and it can, in the fullness of his evidence, appear to be an attempt by him to exaggerate.
59 In summary, I accept that the plaintiff was doing the best he could, given the effluxion of time and the effect that has on the memory of any witness.
Estoppel
60 The plaintiff was relying upon the fact that the worker’s compensation insurer for the employer, The Good Guys, had accepted the claim for the surgery to the left shoulder of the plaintiff in March of 2009. The fact that the defendant’s insurer has accepted liability for, and paid medical treatment relating to the left shoulder surgery, is not an admission that it concedes causation in this serious injury application. Indeed, in the case of Sednaoui v Amac Corrosion Protection Pty Ltd,[44] the Court of Appeal said as follows:
“Ansett v Taylor is not authority for any such propositions of law. The observation in Ansett v Taylor that an admission of the type here under discussion ‘should ordinarily be regarded as very significant’ is, with respect, undoubtedly true. But it is an observation only, and not a statement of legal principle. To regard the words used in this observation in Ansett v Taylor as if they were provisions of a statute defining in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form would be erroneous.”[45]
[44][2017] VSCA 66
[45](ibid) at paragraph 67
61 It is clear that at the time of the acceptance of the claim for the plaintiff’s left shoulder surgery, the insurer did not have the full medical history that is now before the Court, including the two attendances at the Northern Hospital in May 2008 and September 2008.
62 I conclude that the fact that the defendant’s insurer has accepted the claim does not preclude it from contesting the issue of causation in respect of the left shoulder injury to the plaintiff.
Employment
63 The plaintiff relied on the fact that the plaintiff was required to give up his work as a concreter due to his left shoulder injury. The reason for him ceasing work, it was submitted, was due to his inability to continue with the heavy physical labour. I do not accept this proposition, as the plaintiff was continuing to work in concrete cutting type employment which involves heavy work up until the time that he injured his back in November 2014. The reason that the plaintiff had to change his employment to lighter duties, such as his current employment of an occupational health and safety officer, is due to his back injury rather than his left shoulder injury in 2009.
64 Whilst the plaintiff is not claiming for loss of earning capacity in this application, it is accepted that the law was properly set out in the case of Ellis Management Services Pty Ltd v Taylor,[46] where the Court of Appeal stated as follows:
“… As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[47]
[46][2013] VSCA 326
[47](ibid) at paragraph [35]
65 As I have previously stated, I do not accept that the injury to the left shoulder said to have been caused at work, either in the form of an aggravation or a frank injury, is not the reason that the plaintiff ceased working as a concreter.
Conclusion
66 On the basis of the foregoing reasons, the plaintiff has failed to satisfy the Court that he has suffered either a frank injury or an aggravation of a shoulder condition in March 2009 that satisfies the statutory test of having suffered a permanent serious impairment or loss of body function, in this case, to his left shoulder and upper left limb.
67 The application for a serious injury certificate is dismissed.
68 I will hear the parties on costs.
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