McMahon v Australian Promotions Company Pty Ltd
[2016] VCC 445
•17 March 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03912
| LEE JAMES McMAHON | Plaintiff |
| v | |
| AUSTRALIAN PROMOTIONS COMPANY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 March 2016 | |
DATE OF JUDGMENT: | 17 March 2016 (Revised) | |
CASE MAY BE CITED AS: | McMahon v Australian Promotions Company Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 445 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the left shoulder – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Richards v Wylie (2000) 1 VR 79; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; in Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr M Fogarty | Arnold Dallas & McPherson |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 26 May 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the left shoulder.
5 By s134AB(38)(c) 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, may be fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.
6 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
7 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is aged twenty-eight, having been born in November 1987. He is right-hand dominant.
9 The plaintiff currently lives with his parents-in-law and five-year-old son near Bundaberg in Queensland. He is separated and has two other children aged three and eighteen months, who live with their mother.
10 The plaintiff completed Year 10. He has some difficulty reading and writing. After leaving school, for about seven years, the plaintiff worked as a console operator for his parents, initially at the Taradale General Store and later at the Charlton BP service station.
11 Before he started work with the defendant, the plaintiff obtained a Certificate II in Automotive and Certificate III in Road Transport. It was not that he always really wanted to do something with cars, it was just something he was interested in that he thought he would try to pursue.[3]
[3]Transcript “T” 11
12 The plaintiff obtained a heavy rigid truck licence in 2011. He was booked in for the course before starting work with the defendant but obtained his licence thereafter.[4]
[4]T12
13 The plaintiff has also worked as a brickies’ labourer and in a meat factory.
14 In April 2011, the plaintiff started work with Precision Precast Concrete (“the employer”) as a labourer. He worked from 7.00am to 3.15pm and was paid $599 per week. He occasionally did overtime.
15 The plaintiff denied that his job with the defendant was only temporary, while he was looking for work in a field that involved transport or cars. He intended to stay labouring.[5]
[5]T11
16 On the said date, the plaintiff injured his left shoulder carrying a slab of concrete (“the incident”).
17 After having a rest at smoko, the plaintiff’s shoulder pain did not go away. He stopped work and attended his general practitioner, Dr Griffin, who gave him two days off work. Dr Moller, at the same practice, was the plaintiff’s family doctor.[6]
[6]T12
18 The following Monday, the plaintiff re-attended Dr Griffin because of ongoing pain. He sent the plaintiff for tests. The plaintiff was advised the results showed a torn muscle in the shoulder.
19 The plaintiff was prescribed medication and put off work. He had physiotherapy with Mr Lee and also had hydrotherapy and attended the gym.
20 The plaintiff was referred to Mr Dayananda, orthopaedic surgeon, whom he saw in July 2011. He sent the plaintiff for an MRI scan which confirmed a tear in his shoulder. The plaintiff did not know whether he recommended surgery.
21 Mr Dayananda booked the plaintiff in for a shoulder injection. He then decided not to do this procedure as the plaintiff had returned to working fulltime. The plaintiff agreed that he did not have the injection because the doctor decided he did not need it.[7]
[7]T13
22 In about August 2011, the plaintiff returned to light duties and reduced hours. He started off working two hours per day with no lifting, and gradually increased to four hours per day, five days per week, with a five-kilogram lifting limit.
23 In 2012, the plaintiff’s general practitioner certified he was fit to lift up to ten kilograms. The plaintiff was still having trouble lifting his arm above shoulder height. As his hours and duties increased, his shoulder pain became worse.
24 The plaintiff deposed that he was seeing his physiotherapist two or three times a week and, in October 2012, he certified the plaintiff was unfit for any duties.
25 The plaintiff confirmed at the time he left the defendant’s employ, he was working full-time but he had a lifting restriction.[8] He was working 38 hours plus overtime. After he found out the defendant’s business was going to be sold, his ex-wife and family moved to Queensland in November 2012 and he went with them, as he was also unsure of his ability to keep working.[9]
[8]T9
[9]T10
26 In Queensland, the plaintiff attended Dr Suleman, general practitioner, for treatment of his ongoing shoulder pain. He sent the plaintiff for an ultrasound, which took place in February 2013.
27 Dr Suleman referred the plaintiff to Mr Brett Collins, orthopaedic surgeon, whom he saw in August 2013. He gave the plaintiff a cortisone injection and recommended surgery, which the plaintiff underwent on 2 October 2013 (“the surgery”).
28 The plaintiff agreed that as of 2 January 2014, his injury was stable and he was getting progressively better. He told Dr Collins he was making positive progress. The plaintiff disagreed that he had almost complete movement of the left shoulder when examined on 13 January 2014.[10]
[10]T19
29 The plaintiff disagreed that his sleep was then disturbed “occasionally”. His sleep was disturbed every night. He was taking paracetamol and Tramadol once a night.
30 The plaintiff agreed it was slow but steady progress as of 16 April 2014. He had some difficulty with heavy lifting and difficulty sleeping, particularly on his left side. His condition post operatively was not greatly improved but it had improved.[11] The plaintiff had big problems with some movement at that time. He was rarely taking any analgesics in July 2014. He was still taking medication.
[11]T19
31 Post surgery, the plaintiff continued physiotherapy twice a week until funding was terminated in about November 2014.
32 The plaintiff completed a Certificate II and III in Security in 2014.
33 As at 9 April 2015 when he swore his first affidavit, the plaintiff was doing home exercises and saw his general practitioner monthly.
34 At that stage, the plaintiff had tried to find work but had been unsuccessful. He had been undertaking retraining to work in the security industry. He was in receipt of weekly payments and was unsure what his future held.
35 The plaintiff then continued to have an aching pain in his left shoulder. Pain levels fluctuated, depending on activity. At times, his shoulder throbbed. The pain could also be spontaneous. He had tingling in his left arm that came and went. His left arm felt heavy and his shoulder was stiff.
36 On average, the plaintiff was then taking Tramadol twice per week and Panadeine Forte daily. However, he was worried about becoming addicted to these medications and stopped taking them and then just put up with the pain. He took Panadol regularly for breakthrough pain and used Deep Heat and heat packs regularly.
Activities
37 The plaintiff’s injury had affected his ability to play basketball. Before his injury, he enjoyed coaching, refereeing and playing. He believed he would be unable to return to basketball.
38 The plaintiff last played basketball in 2011 in Castlemaine. He did not know the name of the team he played for. It was his brother’s team and he probably played about three games in February that year.[12]
[12]T25
39 The plaintiff enjoyed coaching and refereeing basketball, but did not know when he last did either activity. No doctor had told him he could not go back to basketball.
40 The plaintiff had played as a guard and was the ball mover.[13] If he could go back to playing basketball, he would, but he did not want to aggravate his shoulder. He gave up coaching and refereeing because he just did not want to play anymore.[14]
[13]T25
[14]T26
41 Since his injury, the plaintiff had gained weight because he was less active. His weight gain had affected his self esteem.[15]
[15]T26
42 The plaintiff played AFL football with Harcourt in the 2010 season and was keen to play again. His father was club president and would, from time to time, get him to fill in. That suited the plaintiff. He would have continued to play but for his injury. It was a good opportunity to get out and meet people.
43 The plaintiff played five or six games in the 2010 season. He had been to training four or five times in 2011, but had not played as of the said date.
44 The plaintiff agreed that basketball and football were not sports he loved or relished and he just filled in from time to time.[16]
[16]T36
45 Pre injury, the plaintiff used to frequently play competition darts in Bendigo and Castlemaine, attending tournaments in Regional Victoria as often as he could. He played in a team of five or six players.
46 Pre injury, when the plaintiff played darts, he would hold his left arm out by his side to steady his aim. He was now unable to do so as his balance had been affected by his shoulder injury and his game had suffered as a result. He found that he was nowhere as good as he used to be, which was very frustrating for him.
47 In the witnessbox, the plaintiff demonstrated a javelin like stance that he adopted when he played darts before he hurt his arm. He cannot adopt that position anymore because his shoulder is heavy and he loses his balance. The plaintiff has played darts in Queensland this year, but does not play anymore.[17]
[17]T27
48 There was extensive cross-examination about the plaintiff’s darts scores in 2014-2015 that were on Facebook. He explained that his results were variable and not very good. He agreed his results compared favourably compared to a number of other players who had been listed.[18]
[18]T32
49 The plaintiff played in the Burnett Darts Association, which held its competition in a dart hall on a Tuesday night. He played with the Dart Vaders in that league. He also played with the Shooters. The Bundaberg league was held on Wednesdays and there was also a mixed night. The plaintiff had actually played from probably March-April 2014 until near the end of last year.[19]
[19]T34
50 The plaintiff had made a mistake when he suggested in his February 2016 affidavit that he was then still playing darts and he was thinking of about giving it away. The plaintiff agreed he could play darts tomorrow if he wanted to and he could play competitively.[20]
[20]T35
51 The plaintiff agreed he told a recent medico-legal examiner that he had not given up any sports or hobbies as a result of his injury, and that was true.[21]
[21]T36
52 As of April 2015, the plaintiff had difficulty with domestic chores. He found it awkward hanging out the washing. It was difficult and painful to reach up with his left arm. If he did something like mop the floor, he paced himself and took breaks.
53 The plaintiff’s left shoulder injury affected his ability to care for himself. He had difficulty washing himself in the shower and also dressing due to his pain and restrictions.
54 The plaintiff’s left shoulder injury affected his sleep. If he rolled onto his left shoulder, he woke up. He usually woke two or three times a night and then took half-an-hour to get back to sleep. He was always tired and that affected his mood and relationships. He did not function well when tired. In the past, Tramadol had helped him to sleep but he now avoided taking it.
55 The plaintiff’s range of shoulder movement was limited. He had difficulty reaching overhead and had lost strength. He had difficulty reaching behind his back and was limited in what he could lift.
56 The plaintiff’s shoulder injury had affected his ability to engage with his children. He avoided spinning his son around or wrestling with him. The plaintiff also avoided picking up his son as it aggravated his pain. This situation was upsetting and frustrating for the plaintiff. He also had trouble changing his daughter’s nappies. It was hard to keep her still without full use of both arms.
57 The plaintiff’s general practitioner had referred him to a counsellor because he had become angry and frustrated since his injury. The plaintiff was worried about the future and often felt down. His mood change had impacted on his relationships.
58 Not being able to work had been very stressful for the plaintiff. He constantly worried about not being able to provide for his children and his future was uncertain.
59 The plaintiff swore a further affidavit on 15 February 2016.
60 The plaintiff continues to experience left shoulder pain most days and is rarely pain free.
61 The plaintiff’s shoulder pain varies in severity and consists of aching and throbbing, moreso at the top and front of his shoulder, though there is some pain towards the back thereof. He has good and bad days. He has two or three bad days a week. On a bad day, his pain is quite intense and he is very irritable and it is hard for him to engage properly with work and his family.
62 The plaintiff’s shoulder has not improved significantly in terms of range of motion and use since he swore his last affidavit.
63 The plaintiff disagreed he had achieved a good recovery, as Dr Suleman described.[22] The plaintiff was not sure what Dr Suleman meant in July 2015 when he described the plaintiff had “niggling” shoulder pain but disagreed his pain was somewhat minor. The plaintiff was not sure whether there was no muscle wasting. He agreed there was no difference in the appearance of his left shoulder.[23]
[22]T15
[23]T16
64 The plaintiff denied he told Dr Suleman he wanted his case wrapped up, as was recorded by Dr Suleman on 2 April 2015. The plaintiff had no idea what Dr Suleman meant on 1 June 2015 when he noted that the plaintiff was not ready to shut his case for now.
65 The plaintiff agreed with Dr Suleman’s description of his pain as an “intermittent pain and discomfort in the shoulder” in September 2015.[24]
[24]T17
66 The plaintiff still has tingling in his arm that comes and goes, but he has not had his neck investigated. The tingling is irregular and may not happen sometimes for months.
67 The more the plaintiff used his left arm, the heavier it gets but he could not explain why.[25]
[25]T23
68 The plaintiff described his ongoing pain as aching and throbbing, depending on activity. Therefore, he had stopped various activities such as playing basketball.[26]
[26]T21
69 In the witnessbox, the plaintiff had difficulty trying to get his left arm up straight above his head. He could not reach the middle of his back.[27] He did not have any problem putting his left arm straight out to the side.[28]
[27]T20
[28]T21
70 The plaintiff held his left arm in the witnessbox as he was in pain.[29] He explained that he is pain free on an extremely good day. A bad day can last one day and a half; however, he explained that he learned to live with the pain.[30]
[29]T39
[30]T40
Treatment
71 The plaintiff regularly sees his general practitioner but he does not think there are any further treatment options available to him.
72 The plaintiff continues to use heat packs most nights and ice packs occasionally, particularly on bad days. He uses Deep Heat most nights when he arrives home from work. Generally, his pain increases at night, especially after work.
73 The plaintiff takes Panadol and Nurofen on bad days. He now tries to avoid prescription medication that he regularly took in the past. He managed to wean himself off Panadeine Forte as he understood it was addictive and members of his family had had problems with addiction.[31] The plaintiff had learnt to live with his daily pain and manage it using these methods.
[31]T23
74 The plaintiff now takes Panadol and Nurofen, on average at least four tablets a day, two in the morning and two at night. He uses a heat pack and Deep Heat every night, but not with any real effect.[32]
[32]T24
75 The plaintiff was not sure why he was taking Endep, but it was not to do with psychological issues. He was still seeing a psychologist, Ms Bauer, in relation to his marital problems.[33]
[33]T39
76 The plaintiff has been taking Nexium for a hiatus hernia.
77 The plaintiff agreed he has not seen a physiotherapist in recent months, although a doctor whom he had seen for medico-legal purposes suggested further physiotherapy. The plaintiff does home-based exercises for 15 minutes per day, three times per week, which were given to him by his physiotherapist. He does them quite comfortably.
78 The plaintiff has not received any significant medical treatment recently. He attended Dr Collins in about April 2015 but he did not recommend further surgery and suggested conservative treatment.
79 The plaintiff had not had any treatment, mainly because he could not afford it. He then said WorkCover had paid for treatment in the past and he did not know why WorkCover would not pay for it now.[34] Later, he said that, as far as he knew, WorkCover was not willing to pay for further treatment, but he had not asked WorkCover so he did not really know what the situation was.[35]
[34]T40
[35]T41
80 When it was suggested to the plaintiff that he had little treatment as his condition was not serious enough to do anything about it, the plaintiff responded that he “[did] not know”. He agreed he took Panadol and Nurofen on bad days, and not on good days.[36]
[36]T41
81 The plaintiff deposed that he wakes up almost every night due to pain, usually between 2.00am and 4.00am. He will then usually get up, heat up a heat pack, and then return to bed. If his pain is particularly bad, he takes medication. It takes the plaintiff anywhere from half-an-hour to an hour to get back to sleep. This is very frustrating and he feels tired as a result.
82 The plaintiff explained that he takes Panadol and Nurofen to help him sleep; however, it does not really help. He had previously been prescribed Tramadol for sleep but had stopped taking it.[37] He has just learned to live with this situation. He disagreed he did not take sleeping medication because he did not need to do so.[38]
[37]T38
[38]T42
Current work
83 The plaintiff managed to obtain employment in car sales. He first obtained a job at Bundaberg Toyota as a salesman, commencing full-time work on a trial basis in May 2015.
84 In that job, the plaintiff was required to help set up the car yard in the morning. Most of this work was done under shoulder height and any lifting of boots and bonnets was not heavy as they were all an easy lift with hydraulics.
85 The plaintiff set the car lot up in the morning, assisted customers with queries and aimed to sell cars. Unfortunately, that job lasted only two months, when his employment was terminated as he was unable to obtain the necessary sales figures.
86 After a short period of unemployment, the plaintiff found further work in car sales. He started with Bundaberg Motor Group on or around 2 September 2015, doing similar duties to his earlier job. He currently works five-and-a-half days per week, Monday to Friday, working a half day on Saturdays.
87 The plaintiff’s job is going well. He is not required to do anything heavy with his shoulder. However, it continues to be painful but he manages. Most days, his pain increases by the end of the day.
88 In the last six months, the plaintiff has had two temporary shifts doing part-time security work as a guard.
89 The plaintiff has difficulty concentrating at work on bad days. He does not believe he is as effective with customers due to his concentration and irritability. It is difficult engaging with customers when he is in pain, especially on bad days. That situation worries the plaintiff as his ongoing employment relies on sales and is commission-based.
Domestic situation
90 The plaintiff has more trouble coping at home in the evening after work, with his pain and his irritability making him short tempered. As a result, his family avoids him most nights.
91 The plaintiff’s son is now five. He wants to play with the plaintiff every night. On bad days, the plaintiff has to say no. He hates to do so because his son does not understand why. The plaintiff’s pain restricts him and he needs to rest so that he can get to work the next day. Even when he does not have to work, playing with his son can be quite rough, and the plaintiff is worried about hurting his shoulder. It upsets him that he does not engage with his son as fully as he would like.
92 The plaintiff agreed his son is now a bit young to kick the football with. The plaintiff’s daughters are three and ten months.[39]
[39]T43
93 The plaintiff’s ability to do home duties is unchanged. He can do most duties albeit slowly. He still has trouble with anything heavy and has to pace himself and also avoid repetitive work using his shoulder, particularly above shoulder height.
94 The plaintiff continues to live with his parents. He washes his own clothes. When the plaintiff hangs out the washing, he winds down the clothesline and can put the clothes on below shoulder height.[40] He is able to mop floors, but has to take a break. He does not need help with his personal care and hygiene.
[40]T37
95 The plaintiff agreed there was nothing he did not do around the house. He just did things slowly. He used a pull-start mower and he is able to do the mowing in one hit. He denied, as a recent medico-legal examiner recorded, that he cannot put his left hand in his back pocket. He cannot lift things overhead and tries not to lift anything over shoulder height. He had difficulty lifting an item weighing one kilogram above shoulder height.[41]
[41]T43
96 The plaintiff’s shoulder injury continues to have a significant effect on his life and he is very concerned about his future and what he will continue to experience with his pain.
97 The plaintiff’s pain is pretty bad when he reaches overhead and he avoids doing so. He regards himself as a one-handed person when asked in cross-examination whether he was a two handed or one handed man. He agreed that basically he did everything with his right hand.[42]
[42]T38
98 The plaintiff agreed he took his children in the car from time to time. He used both arms to get them in and out of the car, but if he had a choice of which arm to use, he would use his right and avoided using his left.[43]
[43]T39
99 The plaintiff confirmed that for about ten minutes per day at work he lifted car boots and bonnets with hydraulics. He used both hands in this task. He tried to lift the bonnets with his right hand and moved the catch that held the bonnet up with his left. This is his heaviest task. He agreed he did this task as much as possible with his right hand, but he might use his left. If he lifted a bonnet, he would lift it with his right hand.[44]
[44]T42
Video surveillance
100 The plaintiff was shown on 20 May 2014 carrying his small daughter on his left hip for a short distance, picking items from a supermarket shelf with his right hand. He filled his car with petrol using his right hand.
101 The plaintiff did not know why he had not carried his daughter in his right arm. He agreed he put her in the car seat using both hands. When it was suggested that he could interchange his left and right arm as it suited, he said he did not know really why he used his left arm.[45]
[45]T47
102 The plaintiff agreed he was shown at one stage putting his left arm in an elevated position on the roof of his car. He did not know how he “could do all this with such a painful arm”.[46]
[46]T47
103 The plaintiff agreed he was shown taking photographs on his mobile telephone of his small child on a miniature playground. At one stage, he lifted up his left arm, demonstrating to the child where to stand. The plaintiff did not know whether he was using his left arm in a completely natural, normal and unrestricted way. He said there were only bits of footage. He agreed did not see anything in the film that suggested he had pain in his upper limb.[47]
[47]T48
104 On 20 June 2015, the plaintiff was shown at work in the caryard. He was putting up advertising banners, weighing not more than two kilograms, around the yard.[48] The banners were tall, sail-like flags. He put them into the ground using both arms. At times, he carried a flag above his left shoulder. He agreed he seemed to do that task in a totally unrestricted manner.[49]
[48]T54
[49]T51
105 For some minutes, the plaintiff was seen walking around the caryard carrying a bunch of balloons in his left hand. His left arm was extended above shoulder height. The plaintiff agreed the video showed he had no trouble performing this task but he explained he was restricted when doing so.[50]
[50]T53
106 On various other occasions during the film, the plaintiff was shown lifting car bonnets with both arms, moving freely. He denied the film showed him randomly using his right or left hand in this task.[51]
[51]T52
Treaters
107 The plaintiff attended Dr Griffin at the Moyston Street Clinic in relation to his shoulder injury, first seeing him on 26 May 2011. Dr Griffin reported once on 20 November 2012.
108 The plaintiff was then having weekly physiotherapy using Deep Heat, taking Panadeine Forte and Tramadol.
109 The plaintiff’s shoulder continued to trouble him. During 2012, he had physiotherapy and occasionally required a day off work due to exacerbations of left shoulder pain. With external-internal rotation, the plaintiff’s hand was only able to reach the T12-L1 area.
110 Dr Griffin was then guardedly optimistic that given the plaintiff’s age and lack of significant structural damage to his shoulder, he could make a full recovery. However, given that it was then eighteen months since the original injury with ongoing symptoms, he thought the plaintiff may not achieve that result. He hoped the plaintiff’s shoulder continued to improve over the next year, to symptom free full function.
111 The plaintiff now attends Dr Suleman at Burnett Medical Centre in Bundaberg in Queensland. Dr Suleman first reported on 2 June 2014.
112 Dr Suleman referred the plaintiff to Dr Collins, orthopaedic surgeon, who undertook arthroscopic surgery and decompression following an MRI scan.
113 The plaintiff reported satisfactory progress and Dr Suleman was upbeat about his prognosis. He thought the plaintiff’s injury was stable and getting progressively better. He noted the plaintiff was then undertaking light duties and, with rehabilitation, should resume regular work in the months to come.
114 Dr Suleman added, though, that the injury to the plaintiff’s shoulder would predispose him to strain and wear on the joint sooner than normal. He thought it was possible the plaintiff may have pain and discomfort in the future.
115 In his report of 19 October 2015, Dr Suleman noted conservative treatment had been recommended by Dr Collins and the plaintiff had not seen a physiotherapist in recent months.
116 Dr Suleman expected good recovery but there was residual pain and disability, and that is why he did not recommend employment needing physical effort.
117 Dr Suleman considered the plaintiff’s injury was stabilised but he had subjective symptoms of pain. Dr Suleman was unsure how long it would last as he expected that to have settled completely by now. He thought the plaintiff should be retrained for a more sedentary or less exertional job.
118 Dr Collins, Brisbane orthopaedic surgeon, reported in July 2014. He first saw the plaintiff on 22 August 2013.
119 Given the chronicity of the plaintiff’s problem and the fact that he had not improved more recently, Dr Collins operated on 2 October 2013 when the plaintiff underwent a left shoulder arthroscopic subacromial decompression and acromioplasty.
120 During the surgery, on inspection of the glenohumeral joint, no SLAP tear was identified. The plaintiff had moderate subacromial bursitis and mild acromial hooking that was decompressed.
121 At the first post-operative review on 12 November 2013, the plaintiff stated his shoulder was less painful than pre surgery and he rarely required analgesics. He had commenced physiotherapy and his shoulder movement was returning.
122 On review on 13 January 2014, the plaintiff reported positive progress. He had difficulty with full elevation and was disturbed by pain at night. He was using occasional Paracetamol and Tramadol. He was advised to continue with physiotherapy-assisted rehabilitation.
123 On the last reported review on 16 April 2014, Dr Collins noted that the plaintiff had continued to make slow but steady progress and while he still had some difficulty with heavy lifting and was sleeping comfortably on his left at night, overall, his clinical picture was greatly improved compared to pre operatively.
124 Dr Collins informed the plaintiff he expected him to make only slight, if any, improvement from that point. Dr Collins thought the most important focus of rehabilitation would be on strengthening.
125 The plaintiff reported he was planning to re-train as a cash security guard and Dr Collins thought that would be beneficial for his shoulder in the long term, as he may not cope with heavy, repetitive manual tasks.
126 Dr Collins noted the plaintiff continued to have some problems with left shoulder pain and a slight reduction in movement. He thought the plaintiff’s prognosis was good. He considered his shoulder symptoms would be reasonably well tolerated but the plaintiff may find that occupations and recreational activities that required repetitive heavy lifting or tasks above shoulder height would be less well tolerated.
The Plaintiff’s medico-legal evidence
127 The plaintiff was examined on the defendant’s behalf by Mr Owen Deacon, orthopaedic surgeon, in October 2012.
128 At that stage, the plaintiff still had pain in the top anterior aspect of the left shoulder, radiating halfway down his arm but not into the left hand or up into the left side of his neck.
129 Mr Deacon thought it questionable whether the plaintiff would be able to keep working if physiotherapy was stopped. He thought the important thing was for the plaintiff to be seen by a shoulder orthopaedic surgeon.
130 The plaintiff was seen by Dr Geffen, rehabilitation specialist, in January 2016.
131 Dr Geffen was provided with a number of medical reports including the operation report. However, he made no mention in his report that a SLAP tear was not found on surgery.
132 On examination, the plaintiff reported chronic pain in his left shoulder and forearm. He described a throbbing and aching type pain in the anterior aspect of his shoulder.
133 The plaintiff advised that his left upper limb had improved significantly since first injured. He was by no means pain free and without difficulties in performing everyday tasks. His pain was aggravated by performing overhead tasks and lifting heavy objects and he also had sleep disturbed by pain.
134 In addition, since his injury, the plaintiff reported beginning to suffer anxiety and depression as a result of his injury. He felt tired with poor motivation and that the subsequent breakdown of his marriage had significantly been contributed to by his physical injury and associated psychological state.
135 The plaintiff was then taking Nexium, Panadol and Nurofen as required.
136 Dr Geffen thought that the plaintiff was a credible historian.
137 On examination, there was a loss of forward flexion and reduction of external rotation. The plaintiff was tender to palpation. He did not exhibit chronic pain behaviours nor did he exaggerate his symptoms or have non anatomical signs.
138 Dr Geffen noted the reports from Dr Goldwasser, Dr Morris, Dr Collins, Dr Burke and Dr Robertson, psychiatrist.
139 Dr Geffen thought the plaintiff suffered an injury to the muscles and ligaments of his left shoulder, requiring surgery. As a result, the plaintiff continued to suffer from mechanical impairment of his left upper limb.
140 Dr Geffen thought the plaintiff’s prognosis was good, noting successful surgery. Although he was not pain free, the plaintiff had made significant improvements since his initial injury. The plaintiff had managed to return to work as a car salesman and was able to do most activities of daily living.
141 Dr Geffen thought there was no reason why the plaintiff could not continue to work in a less physically demanding role such as he was doing for the foreseeable future. However, he did not consider that the plaintiff would be able to return to heavy manual labour, particularly overhead tasks or those requiring repetitive pushing, pulling and heavy lifting.
142 Dr Geffen thought that with his shoulder injury, the plaintiff would be more susceptible to further shoulder injury and likely accelerated osteoarthritis. The plaintiff might need surgery in the future but Dr Geffen would defer to the opinion of an orthopaedic surgeon.
143 Dr Geffen recommended ongoing physiotherapy, once a week for four weeks, followed by once a fortnight for two months and then two sessions indefinitely. A trial ultrasound-guided local anaesthetic and cortisone injection and counselling was also appropriate.
144 The plaintiff was examined by Dr Kelly Macgroarty, a Brisbane based knee and shoulder surgeon, on 29 January 2016.
145 On examination, the plaintiff described ongoing left shoulder pain. He had some decreased range of movement. His pain commenced anterior about the shoulder and radiated through the shoulder into the posterior shoulder blade region. Symptoms had remained unchanged for twelve months.
146 The plaintiff was using daily Panadol and Nurofen for pain control.
147 Dr Macgroarty noted the plaintiff had not given up any sports or hobbies as a result of his injuries. The plaintiff claimed he struggled with household chores and could not mow the lawn without pain. He could dress and attend to personal hygiene. He could not reach his back pocket. He could not lift objects overhead left handed.
148 The plaintiff told Dr Macgroarty that he had returned to work as a sales person for Bundaberg Motor Group. He had been employed for four-and-a-half months and worked 55 hours a week, plus overtime. She noted he was not capable of returning to heavy manual labour.
149 On examination, there was no muscle wasting noted. The plaintiff did not demonstrate a painful arc of rotation and had no crepitus. Impingement signs were negative. There was no instability in the left shoulder.
150 Dr Macgroarty diagnosed left shoulder subacromial bursitis with secondary impingement, operated, stable and stationary. She believed the plaintiff’s symptoms were consistent with the objective clinical finding. Treatment had been considered appropriate and completed.
151 As a result of the injury sustained, Dr Macgroarty expected the symptoms would have persisted up until the time of surgery. Thereafter, she thought it was likely that rehabilitation would have required a four to six-month timeframe before stabilising. Despite ongoing symptoms, she did not expect the plaintiff would see any further functional gains moving forward and his prognosis was then poor.
152 Dr Macgroarty did not believe the plaintiff was at risk of accelerated arthritic degeneration as a consequence of his injury. If pain persisted, she thought he may require long-term analgesics and anti-inflammatory medication. She did not believe there was a role for any ongoing allied health assistance.
153 Dr Macgroarty did not think the plaintiff was suited to return to a heavy manual handling occupation. It was unlikely he would return to work as a labourer or any other field of endeavour which required heavy lifting of weights greater than 5 to 10 kilograms or repetitive overhead activity.
154 Dr Macgroarty thought if those activities were undertaken in the future, it was likely to aggravate the plaintiff’s left shoulder symptoms.
155 In her view, provided the plaintiff remained in a sedentary position with minimal lifting and overhead activities, it was expected he would be capable of full-time employment through to his elected age of retirement, with minimal concerns of risk of further aggravation to the left shoulder.
156 Dr Macgroarty thought the plaintiff had a mild disability with respect to recreational and domestic activities. She considered he had a moderate disability with respect to employment activities.
Claim documentation
157 In his Claim for Compensation signed by the plaintiff on 17 June 2011, he described the injury to his left shoulder “carrying large concrete slab when left shoulder felt weak and painful”. He was moving a concrete slab from a mould to the pallet.
158 The injury occurred on 26 May 2011 and the plaintiff reported it on that day. He was then working Monday to Friday, 7.00am to 3.15pm at $15.50 per hour, earning $589 a week, together with five hours’ overtime. He returned to work on 3 May 2011 and was doing modified duties.
The Defendant’s medical evidence
Pre incident
159 Dr Griffin noted on examination in April 2007, that the plaintiff had a painful shoulder for three weeks with no recollection of injury. When presented, the plaintiff could not lift his arm.
160 On 10 May 2007, Dr Griffin noted the shoulder pain had settled almost completely. Intermittent problems with the left shoulder were noted on 3 August 2007.
161 The plaintiff underwent an x-ray and ultrasound of his left shoulder on 3 May 2007. It was reported the ultrasound showed equivocal evidence of calcific tenderness only.
Post incident
162 Mr Dayananda, orthopaedic surgeon, wrote to Dr Griffin on 10 August 2011, advising that a request was being made from WorkCover for an ultrasound-guided injection.
163 By letter of 21 December 2011, Mr Dayananda advised that he had discharged the plaintiff from his care and thought he could gradually return to work, depending on his pain levels. He noted that with physiotherapy, the plaintiff’s shoulder pain had quite significantly subsided, and hence there was no need for cortisone injections.
Investigations
164 There was an MRI scan of the left shoulder organised by Mr Dayananda in August 2011.
165 It was reported there was lobulated T2 high signal structure involving the subchondral bone of the greater tuberosity of the humerus in keeping with an intraosseous ganglion. Otherwise it was a normal MRI scan of the left shoulder with no other cause seen for shoulder pain.
Operation report
166 Dr Collins’ operation report of 2 October 2013 set out that he had performed a left shoulder arthroscopic subacromial decompression and acromioplasty. No SLAP tear was identified and the plaintiff’s rotator cuff was intact.
Clinical notes
167 Dr Suleman from Burnett Medical Centre reported as follows:
· 1 May 2015 – “need to get some finality of his case; shoulder stabilised”
· 1 June 2015 – “shoulder improving, not ready to shut case now”
· 28 July 2015 – “still has niggling shoulder pain”
· 4 September 2015 – “still intermittent pain and discomfort on shoulder”
· 26 October 2015 – the plaintiff still had niggling shoulder pain, but was “working in car sales; no strain”.
168 Trevor McLaren, physiotherapist, advised on 24 October 2014 that the plaintiff had made a significant recovery since referral in October 2013 following shoulder surgery. The plaintiff then had the requisite number of treatments. It was noted a major component had been a progressive and comprehensive home exercise program.
169 Mr McLaren noted that the plaintiff had been successful in attaining 15 kilogram lifting from floor to bench height and had regained almost full shoulder flexion with minor pain symptoms at the end of range.
170 Mr McLaren noted, unfortunately, the plaintiff still had significant internal rotation restriction of the left shoulder and pain symptoms, consistent with left shoulder capsular and ligamentous scarring at the end of range. Functional testing showed an ability to perform kneeling push-ups, but an inability to perform a single standard style body length push-up.
171 Mr McLaren thought the plaintiff had attained a physical work level of light work, as found in physical work category definitions, although he may be able to perform some tasks in the medium work categories up to 15 kilograms.
The Defendant’s medico-legal evidence
172 Dr John Morris, an orthopaedic surgeon based in Queensland, saw the plaintiff in January 2014.
173 The plaintiff told Dr Morris his arm was slowly improving, having finished a course of physiotherapy.
174 The plaintiff advised Dr Morris he had some left shoulder pain on activity and noticed reduced movement. He could not sleep on his left side. When his shoulder was particularly sore every second or third night, the plaintiff took Panadol before bed and sometimes took it during the day.
175 On examination, there was some reduced movement of the left shoulder. Muscle power appeared reasonable.
176 Dr Morris noted that ultrasound of February 2013 showed a thickening of the supraspinatus muscle with possible tears and the subacromial bursa was also thickened.
177 Dr Morris diagnosed rotator cuff tendonitis. He thought the plaintiff should obtain a good result from recent surgery and his arm would need to be protected from heavy usage over the next six months, although it should then return to normal activities. The plaintiff had not then fully recovered from surgery. Dr Morris thought further physiotherapy was appropriate and thereafter a supervised gym program.
178 Dr Morris thought the plaintiff was not able to return to work in his pre-injury duties and hours. That was heavy work as a labourer and would not be suitable now or in the future. He thought the plaintiff could not return to modified pre-injury duties with the employer as the work was heavy.
179 Dr Morris thought that the plaintiff would be able to work for the employer if he had restricted use of his left arm. That would involve not lifting more than 7.5 kilograms, not using his arm above shoulder level and starting off on a graduated return to work program for 20 hours per week, gradually increasing to 38 hours per week. Those modifications would have to remain in place for probably two to three months and then a work capacity review would be undertaken every three months.
180 Dr Morris thought the plaintiff would be suitable to undertake work as a taxi driver, despatch truck driver, sales assistant and office worker. In his view, the plaintiff then had a current work capacity.
181 Dr Goldwasser examined the plaintiff for the purposes of an impairment assessment on 28 May 2014.
182 The plaintiff then complained of pain in his left shoulder which he described as being at the top and back of the shoulder as well as in the front, and he could not sleep on his shoulder at night. If he did, he had to move away from it.
183 The plaintiff found he did not have a full range of shoulder movement and had difficulty with overhead use and reaching. He did not have the strength to do heavy lifting like he used to and had difficulty in reaching behind his back. He experienced intermittent tingling which could last a few minutes and was eased by moving his shoulder.
184 The plaintiff described having a toothache-like pain in the shoulder most of the time. That was worse and became a sharp pain with activity.
185 The plaintiff was then taking one or two Tramadol per day and around four Panadeine Forte tablets per week. He also took about six to eight Panadol per week and Nexium occasionally. He was having physiotherapy fortnightly and attending the gym twice per week. He was undertaking home exercises using a heat pack and Deep Heat.
186 The plaintiff considered his shoulder condition had been stable now for five months.
187 The plaintiff enjoyed playing darts but could now only use his right hand when previously he could use both. He had to stop playing basketball and also coaching and refereeing, which he previously enjoyed.
188 On examination, there was a mild wasting of the supraspinatus. There was tenderness over the anterior part of the shoulder at the acromion. There was mild discomfort on testing for impingement. There was some restriction of shoulder movement. Rotator cuff muscle power and function appeared satisfactory.
189 Dr Goldwasser thought the plaintiff’s condition was largely stabilised.
190 Dr Michael Robertson, consultant psychiatrist, examined the plaintiff in Brisbane in November 2014.
191 The plaintiff advised that he initially experienced some reactive anxiety dysphoria following the shoulder injury and the likelihood that he would be unable to return to pre-injury duties. He had had variable degrees of psychological distress, depending on his social situation. His sleep was disturbed, largely as a consequence of pain. His concentration, short-term memory, self esteem and capacity for reactivity were varied, and he reported he had longstanding, high trait anxiety.
192 The plaintiff had seen a psychologist five times and seemed to have derived some benefit from that Medicare funded treatment.
193 Following mental state examination, Dr Robertson thought the plaintiff may have an Adjustment Disorder with mixed disturbance of mood and anxiety but he did not demonstrate a current psychiatric disorder. There were no psychiatric restrictions to the plaintiff’s employment.
194 Dr Robertson thought the plaintiff was mildly anxious and irritable, with some symptoms of pain, but these were not significant of a psychiatric disorder.
195 Dr Robertson did not determine the presence of any secondary gain or other elements of abnormal illness behaviour. He thought the plaintiff presented as quite motivated to return to employment and seemed frustrated about delays in engaging in work in the security sector.
196 In Dr Robertson’s view, the plaintiff should complete twelve sessions of psychological therapy based on resolving his Adjustment Disorder. It was appropriate that therapy be focused more on health psychology, enabling the plaintiff to adjust to the restrictions of his shoulder injury and whatever was needed to help him establish a new field of employment.
197 Dr Burke, consultant occupational physician, examined the plaintiff in November 2014.
198 The plaintiff then described ongoing symptoms, principally of pain, anteriorly and posteriorly in the left shoulder, and the principal symptoms were around the mid clavicular region.
199 The plaintiff indicated his pain tended to come and go. He experienced pain most days of the week which could last anything from five minutes to five hours. It came on of its own accord but more commonly occurred with activity. The plaintiff had then recently completed a security course and was waiting for certification.
200 The plaintiff played darts once a week and would irregularly play on a Friday, usually on a trip to a surrounding town.
201 The plaintiff was then taking only Panadol, having decided to give away Panadeine Forte and Tramadol. He was also taking Nexium for a hiatus hernia.
202 On examination, there was mild tenderness anteriorly in the sub supraclavicular fossa. There was a reasonably well preserved range of left shoulder movement. Impingement signs were negative.
203 Dr Burke noted imaging revealed evidence of a mild degenerative change in the left shoulder with some degree of bursitis, as well as a labral tear which underwent surgery. The plaintiff had made a very slow recovery from surgery and continued to describe ongoing symptoms.
204 Dr Burke thought the plaintiff would be able to return to the workforce in a full‑time capacity. The plaintiff would be able to work as a security officer, forklift driver, sales assistant and taxi driver, if he so desired. He noted the plaintiff had extensive experience working as a console operator and he would be able to work in that capacity if he wished.
205 Dr Burke thought the plaintiff would not be able to return to work at his pre-injury duties and hours. He would be able to undertake modified or alternate duties as long as a lifting restriction was maintained. Essentially, he would need to avoid prolonged, sustained and resistant overhead or reaching activities with his left hand, as well as heavier lifting and carrying up to 15 kilograms.
206 Dr Burke agreed with IPAR’s recommendations, noting the plaintiff had a capacity for suitable employment. He thought there were no significant non-work related factors contributing to the plaintiff’s condition, and did not think he needed any further treatment or investigation.
207 A number of Facebook entries from the Burnett Darts Association were tendered. The plaintiff was cross-examined about his darts scores in numerous dart competitions from October 2014 to 16 June 2105.
Video surveillance
208 There was short film of the plaintiff taken on 20 May 2014 and 19 and 20 June 2015.
Overview
209 There is no dispute the plaintiff suffered injury to his left shoulder at work on the said date.
210 Following an early MRI scan, the plaintiff’s left shoulder condition was diagnosed as subacromial bursitis with a partial tear of the supraspinatus. There was also a type 2 SLAP tear. However, operatively, no SLAP tear was identified.
211 Whilst it is the impairment, not injury which is the relevant consideration,[52] counsel for the defendant submitted that the operation report indicated a very mild problem.[53]
[52]Richards v Wylie (2000) 1 VR 79 (per Winneke P)
[53]T69
212 Liability was accepted for the arthroscopic surgery and there was about six months of weekly payments.[54] This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[55] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[54]T28
[55][2006] VSCA 171
213 I am satisfied the plaintiff’s shoulder impairment has a substantial organic basis.[56] There is no suggestion that non-organic or psychiatric factors play any significant role in the plaintiff’s current presentation.
[56]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21] – [22]
Credit
214 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[57]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[57](2010) 31 VR 1 at paragraph [12]
215 Counsel for the defendant submitted the plaintiff was not a reliable witness, given his comments about darts in his second affidavit, and the inconsistencies in his description of his pain and restriction and level of medication intake.[58] Further, it was submitted that the video supported the proposition that the plaintiff had a low grade injury that could not be productive of serious injury consequences.[59]
[58]T71
[59]T69
216 The surveillance film, in my view, save for a short period, did not show a level of activity greatly inconsistent with the plaintiff’s description of his pain and restriction.
217 The plaintiff had never described himself as a one handed man in his affidavits or in his histories to doctors. This was not a case where the plaintiff said he could not use his arm, despite the thrust of cross-examination.[60]
[60]T83
218 Whilst the plaintiff was shown carrying his one-year old child in his left arm, the baby was snuggled into his hip and was only carried over a short distance – an activity which obviously did not involve over shoulder activity.
219 In the film, the plaintiff was shown using both arms carrying advertising flags around the caryard and then putting them in the ground. This was not a particularly heavy task nor was lifting car bonnets with his left hand on a number of occasions. In my view, the only time in the film where the plaintiff was shown moving his left arm in a manner somewhat inconsistent with his stated level of disability was when he raised it above shoulder height for several minutes carrying an advertising banner on the second date.
220 However, I do accept the submission that the plaintiff’s presentation in the witness box holding his arm and saying it was heavy was inconsistent with what was shown on the film.[61]
[61]T79
221 There was however, no suggestion by any medical practitioners of any inconsistencies or embellishment by the plaintiff on physical examination.
222 The issue of a pre-existing shoulder problem was relied upon by counsel for the defendant more in terms of the plaintiff’s credit than a submission this was an aggravation case where the principles in Petkovskiv Galletti[62] applied.[63]
[62] [1994] 1 VR 436
[63]T79
223 The issue in this case is one of range as both counsel agreed.
Consequences
224 As the plaintiff is now only twenty-eight, counsel for the plaintiff relied on the decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd.[64] In that case, Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[64][2009] VSCA 181
225 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. The Court noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
Pain
226 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[65]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[65](supra) at paragraph [11]
227 The plaintiff describes an aching throbbing pain in his left shoulder, most days, moreso at the top thereof than the back. His pain level fluctuates with activity. He has tingling in his arm. His shoulder feels stiff and heavy. He has two or three bad days a week. On a bad day, the pain is quite intense.[66]
[66]T21
228 In the witness box, the plaintiff had difficulty trying to get his left arm straight up above his head. He could not reach the middle of his back.[67] He explained he was holding his left arm in the witness box as he was in pain.[68]
[67]T20
[68]T39
229 The plaintiff’s description of his pain is somewhat at odds with that recorded by his treating doctors.[69]
[69]T67
230 Whilst Dr Collins thought it appropriate to operate, post surgery when he last reported in April 2014, he noted the plaintiff had continued to make slow but steady progress and whilst he had difficulty with overhead lifting and sleeping on his side, overall, the plaintiff’s clinical picture was greatly improved to that pre-operatively.
231 Dr Collins noted the plaintiff continued to have some problems with left shoulder pain and a slight reduction in movement. He thought the plaintiff’s prognosis was good. He considered his shoulder symptoms would be reasonably well tolerated but the plaintiff may find that activities that required repetitive heavy lifting or tasks above shoulder height would be less well tolerated.
232 There is no report from Dr Collins following the most recent examination in April 2015.[70]
[70]T70
233 Dr Suleman was very optimistic as to the plaintiff’s progress when she last reported in October 2015.[71] She then noted that his injury had stabilised but he had subjective symptoms of pain. She was unsure how long this would last as she expected it to be completely settled by now. She thought the plaintiff should expect a good recovery but there was residual pain and disability, which would preclude work needing physical effort.
[71]T70
234 The plaintiff made more significant complaints of pain to recent medico-legal examiners.[72]
[72]T77
235 The plaintiff told Dr Geffen in early 2016 that he had chronic, throbbing and aching pain in the anterior aspect of his left shoulder and forearm. The plaintiff advised that his left upper limb had improved significantly since first injured. He was by no means pain free and without difficulties in performing everyday tasks.
236 Dr Geffen is the only practitioner of the view that there was a likelihood of osteo-arthritic change;[73] however, he thought the plaintiff’s prognosis was good. Surgery had been successful and although he was not pain free, the plaintiff had made significant improvements since the injury.
[73]T76
237 On examination by Dr Macgroarty in early 2016, the plaintiff described ongoing left shoulder pain, commencing anterior about the shoulder, and radiating into the posterior shoulder blade region.
238 Whilst she considered the plaintiff would require painkilling medication on a long-term basis, Dr Macgroarty thought he had a mild disability with respect to recreational and domestic activities and a moderate disability in relation to employment.
Treatment
239 Following initial investigations, the plaintiff was referred to Mr Dayananda, specialist, who suggested an injection. However, that did not take place, as the plaintiff returned to work and the specialist did not consider the procedure was necessary.
240 The plaintiff was referred to another specialist, Dr Collins in Queensland, who operated and did not find a SLAP tear and diagnosed bursitis. Thereafter, the plaintiff underwent physiotherapy until funding ceased at the end of 2014.
241 The plaintiff continues to do home-based exercises on the advice of his physiotherapist.[74]
[74]T85
242 The plaintiff continues to take Nurofen and Panadol on a regular basis and may need to do so for the foreseeable future as Dr Geffen suggested.[75] However, as counsel for the plaintiff conceded, that level of medication is not quite the level of medication described by Dodds-Streeton JA in Kelso v Tatiara Meat Company Pty Ltd.[76]
[75]T85
[76](2007) 17 VR 592 at paragraph [199]
Work
243 I accept the plaintiff is no longer fit for unrestricted, heavy manual work. It was not suggested by counsel for the defendant that this is the case.[77]
[77]T80
244 The consensus of medical opinion is to this effect.[78]
[78]T78
245 The plaintiff however has been in full-time employment for nearly two years.
246 The plaintiff is presently working in the caryard as a salesman for 55 hours a week, five-and-a-half days a week. He has also done two shifts as a static security guard, having been trained in that field.[79]
[79]T75
247 The plaintiff’s work history is not one of heavy manual work. He has had a background of seven years’ work as a console operator in his family’s business. As Dr Burke noted, the plaintiff had extensive experience working as a console operator and he would be able to work in that capacity if he wished.
248 The plaintiff also successfully completed a number of courses in the automotive industry.
249 In my view, the plaintiff is well suited to his current job in regard to his experience and training. There are no restrictions on his work and he has not missed time from work due to his shoulder injury. Further, he is also willing and able to do static security work when it becomes available.
250 Counsel for the plaintiff conceded that this was not a situation where the plaintiff has lost his trade or is unable to continue working in an area which he loved[80] but submitted he had lost the opportunity to work in some of the areas for which he had been trained such as mechanic work and truck driving.[81]
[80]See also T79 – counsel for the defendant
[81]T81
251 The plaintiff however denied that it was his ultimate intention to work in this type of work.[82]
[82]T11
252 Counsel for the defendant relied upon the remarks of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[83] that where a plaintiff was capable of returning to alternative employment, then, unless there was some other evidence that he experienced significant pain or that he otherwise significantly suffered physically from the injury, then it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable”.
[83][2006] VSCA 292
253 Sumbul v Melbourne All Toya Wreckers Pty Ltd was distinguished by counsel for the plaintiff on the basis Mr Sumbul was a man refusing to accept he could do alternate employment and it was in those circumstances that Chernov AJ made his comments. In the present case, the plaintiff had clearly returned to employment. It was submitted there was nothing in Sumbul to suggest if a plaintiff returned to work, he could not have a serious injury.[84]
[84]T80
254 Further, counsel for the plaintiff relied upon the Court of Appeal decision in Stijepic v One Force Group Australia Pty Ltd & Anor,[85] where Ashley JA and Beach AJA noted that it was plain that Sumbul was not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences.
[85]Supra
255 I accept that the Court of Appeal in Stijepic took Chernov JA to have been saying that if a worker successfully returns to alternative duties, it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are “serious”. But, as always, the evidence as a whole must be considered.
256 No medical practitioner is of the view the plaintiff has any difficulty with his current role working in car sales or would expect him to have problems in the future.
257 In 2014, before the plaintiff started his present job, Dr Burke thought he would be able to undertake modified or alternate duties as long as a lifting restriction was maintained. Dr Morris shared a similar view.
258 Dr Suleman thought the plaintiff should be retrained for a more sedentary or less exertional job.
259 Dr Collins considered the plaintiff’s plan to return to work as a cash security guard would be beneficial for his shoulder in the long term, as he may not cope with heavy, repetitive manual tasks.
260 Dr Geffen thought there was no reason why the plaintiff could not continue to work in a less physically demanding role such as he was doing for the foreseeable future.
261 In Dr Macgroarty’s view, provided the plaintiff remained in a sedentary position with minimal lifting and overhead activities, it was expected he would be capable of full-time employment through to his elected age of retirement, with minimal concerns of risk of further aggravation to the left shoulder.
Activities
262 I accept the plaintiff would have some restriction on his ability to undertake heavy domestic tasks. However, he can lift items above head height, as was shown on the film. Hanging out the washing was not a problem as he claimed, as he was able to lower the height of the clothesline.[86]
[86]T72
263 Having indicated to counsel for the defendant in addresses that I did not think there were serious consequences in terms of the plaintiff’s sporting activities,[87] no submissions were made by counsel for the plaintiff in this regard.
[87]T72
264 Whilst counsel for the plaintiff submitted, in terms of cases such as Haden Engineering[88] and Sutton v Laminex Group,[89] the various indices that point towards a serious injury existed in the present case, it was conceded this may not be the case where there is “one big ticket item,” but it was submitted there are enough factors present to meet the very considerable test.[90]
[88]Supra
[89]Supra
[90]T86
265 I do not accept this submission.
266 In my view, taking into account all of the evidence, I am not satisfied that the consequences of the plaintiff’s shoulder impairment are “serious”.
267 Accordingly, the application is dismissed.
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