Mosticone v Nestle Australia Ltd and VWA
[2011] VCC 1473
•19 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
| AT MELBOURNE | Not Restricted |
| CIVIL DIVISION DAMAGES – COMPENSATION SERIOUS INJURY DIVISION |
Case No. CI-10-03796
| ALFREDO MOSTICONE | Plaintiff |
| v | |
| NESTLE AUSTRALIA LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 August 2011 |
| DATE OF JUDGMENT: | 19 September 2011 |
| CASE MAY BE CITED AS: | Mosticone v Nestle Australia Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1473 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Application pursuant to s.134AB(16)(b) Accident Compensation Act 1985 – impairment to right and left shoulders – bilateral supraspinatus tear – pain and suffering – loss of earning capacity.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell | Slater & Gordon |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant from 19 October 1999 to July 2006 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the right and left shoulder and also the bilateral upper limbs.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
(ii) The impairment of the body function must be permanent.
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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”.
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. 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
6 The plaintiff is presently aged seventy, having been born on 11 July 1941 in Rome. He went to school in Italy. His ability to read and write English is poor.
7 After leaving school, the plaintiff worked in a glass factory and then undertook compulsory military service. He first came to Australia in 1971 and worked as a glazier for two to three years before returning to Italy. In 1976, the plaintiff came back to Australia, where he again worked as a glazier for various companies over the next ten years.
8 On 29 April 1986, the plaintiff started work with the first defendant. For about the first six months he worked in the cool room and then transferred to the packing room doing repetitive process work, packing Violet Crumbles.
9 In the late 1990s, the plaintiff became a serviceman and fork lift driver, engaged in heavy and awkward work which involved pushing and pulling trolleys, loaded with pallets of ingredient and product, from the baking room to the storeroom of the first defendant’s premises.
10 Fork lifts were not used in the baking room because of the confined space. The loaded trolleys weighed between two and four hundred kilograms. The plaintiff’s duties also included a lot of heavy lifting and carrying bags of ingredient and trays of product, including lifting above shoulder height.
11 The plaintiff deposed that before starting work with the first defendant, he was fully fit. He had sustained a number of minor injuries over the years.
12 In about June 1988, the plaintiff hurt his right arm at work whilst packing Violet Crumbles. He was off work for three or four weeks. In about June 1989, the plaintiff strained his neck and shoulders at work.
13 In about August 1997, the plaintiff had a car accident in which he hurt his neck and left shoulder (“the 1997 car accident”)). He made a claim in relation to that injury and does not recall having any significant time off work. The plaintiff also had a large lump surgically removed from his right forearm in February 2001.
14 In cross examination, the plaintiff said he could recall a slight pain on the neck following the 1997 car accident. He sought medical treatment but when he found out it was not too significant, then he was happy.
15 The plaintiff had shoulder pains that came and went prior to the 1997 car accident because of the work he was doing. The pains were quite frequent, depending on the type of work he was engaged in. In re examination, he explained that more or less both shoulders were hurting before the car accident. After the 1997 car accident, the pains remained more or less the same. The plaintiff could also have had back pain because of the work he was doing.
16 The plaintiff could recall seeing Mr Takyar, a physiotherapist, in October 1997 for about six or seven months. It was possible, however, he had been treated by Mr Takyar until 2001 for left shoulder pain.
17 The plaintiff could not remember getting TAC certificates from Dr Jabbar regarding his neck and left shoulder. He remembered getting certificates in relation to his work, but not the 1997 car accident.
18 In re examination, the plaintiff said that since 2004 his shoulders have been much more painful and the pain has been much stronger than it was before the 1997 car accident. He had practically forgotten about that accident. He was back and working in 2001. He was able to do overtime between 2001 to 2003. He could do his swimming and handyman work during that period.
19 The plaintiff agreed that he had received compensation as a result of the 1997 car accident but he did not know the compensation was for a permanent injury.
20 The plaintiff probably did tell Dr Cole in August 2000 that his neck was painful and stiff, because with his type of work, he was always in pain in that area. The plaintiff denied he told him that the pain never went away – it came and went.
21 The plaintiff deposed that even though he sustained those earlier injuries, he was still able to work full time and enjoy an active life. He was a very proud man and the breadwinner of the family.
22 The plaintiff loved the outdoors and kept himself fit by riding his pushbike along the Merri Creek and other local bike tracks. He regularly went swimming at either Fawkner pool or at the beach. He enjoyed spending time working in the backyard and garden.
23 The plaintiff was a good handyman and he used to paint, clean windows and gutters, change light globes and do maintenance tasks and repairs.
24 One of the plaintiff’s hobbies before suffering injury to his shoulders was making furniture and bookshelves. He also played the guitar.
25 The plaintiff enjoyed a happy family life, including wonderful holidays. He also enjoyed a happy marriage, including a healthy physical relationship.
26 In about July 2000, the plaintiff began suffering right shoulder pain at work as a result of pushing and pulling trolleys and lifting.
27 The plaintiff saw his general practitioner Dr Jabbar, who gave him painkillers and sent him for an ultrasound in September 2000, which the plaintiff believed showed he had a problem with the right supraspinatus tendon,
28 The plaintiff put up with his symptoms as best he could and kept doing heavy work. About a year a later, he suffered worsening problems with his left shoulder which he reported to Dr Jabbar who sent him to a physiotherapist.
29 Over the next two to three years, the plaintiff continued to do his normal duties. He was aware of occasional pains in his shoulders whilst working. He also had pains in his ankles and feet, which were aggravated by long periods of standing. The pain in his shoulders worsened in about April 2004, after the plaintiff was pushing trolleys at work.
30 The plaintiff was sent by Dr Jabbar for an ultrasound of both shoulders later that month. The plaintiff believed that investigation showed bilateral full thickness tears of the supraspinatus tendon.
31 The plaintiff kept working over the next two months with difficulty. He had pain in his shoulders and feet.
32 In about June 2004, the plaintiff again hurt his shoulders at work, when pulling a pallet of product with a trolley. He reported the injury and was sent by the first defendant to the company doctor, Dr Ugwu, at the OccWest Medical Centre (“OccWest”) in Sunshine. Dr Ugwu prescribed painkillers and gave the plaintiff a certificate for light duties.
33 On 6 August 2004, the plaintiff made a WorkCover Claim in relation to that injury and liability was accepted by the defendants. The plaintiff was paid weekly payments for his time off work and also medical expenses.
34 The plaintiff deposed that the shoulder injury had ended his working life and his capacity to earn a living. He struggled on light duties until 29 July 2006, working under restrictions suggested by the first defendant’s doctors.
35 The plaintiff was put in the washroom, washing chocolate moulds. He was required to work at a very fast pace and this aggravated his shoulder symptoms. He had periods off work when his symptoms became unbearable. In late July 2006, the first defendant took away the plaintiff’s light duties and he has not worked since.
36 In re examination, the plaintiff confirmed that from 2004, he was placed on light duties in a situation where he had to quickly wash trays.
37 Much of the cross examination focussed on the plaintiff’s problems with his feet from 2003.
38 The plaintiff agreed that in April 2004 he submitted a claim for compensation in respect of a foot problem. He said the problem was caused by a change of the system at work which meant he had to bend in a certain way and move in a different way. He carried out his new duties standing up rather than bending down.
39 The plaintiff agreed that he was required to pull a hand truck and use it to manoeuvre pallets. He disagreed that caused him problems with his feet saying it caused him problems with his shoulders. However, when shown the claim form where he set out he had sore feet as a result of that work process, he agreed that was the case.
40 The plaintiff agreed he gave medical certificates to the first defendant in relation to lower limb pain. Dr Wilkinson gave him certificates with restrictions on his duties throughout 2004. The plaintiff did not think he was still getting these certificates when he finished working with the first defendant but then agreed he was getting such certificates until at least 2007.
41 When it was put to the plaintiff that his duties were modified because of his foot condition, the plaintiff initially said:
“The reason they changed my duties was because they gave me other
work.”
42 The plaintiff then agreed his duties were changed when he presented the certificates in relation to his foot condition, before he put in his claim for his shoulder.
43 The plaintiff explained his shoes were painful. He needed to change them as they were very heavy.
44 The plaintiff was having problems with both his feet and shoulders when his employment was terminated, but much more so with his shoulders, perhaps a little with his feet. Nothing wrong was found with his feet but he agreed they were a big problem which was helped by treatment.
45 In examination-in-chief, the plaintiff said he considered his worst injury to be his shoulders and that was what stopped him working in 2006. He would not be able to work now even if he had only one sore shoulder.
46 In re examination, the plaintiff confirmed the foot problem related to his shoes, but on a daily basis he had problems in the shoulder. “Absolutely” the main problem causing him to stop working was his shoulders.
47 The plaintiff said that the first defendant did not follow the certificates relating to his feet to make his job easier. The plaintiff confirmed he also got certificates in relation to his shoulders as well as those for his feet.
48 The first defendant terminated the plaintiff’s employment on 24 October 2007, the plaintiff believed, because of his injury and resulting incapacity.
49 The plaintiff has missed not being able to work. He missed the financial security that his work provided. He believed he could have worked until seventy, if not injured.
50 In 2010, the plaintiff received a pension of $250 per fortnight, whereas he used to earn over $1,000 gross per week working for the first defendant.
51 In cross examination, the plaintiff agreed he had been on light duties for at least two years before his employment was terminated. He intended to continue working as other friends of the same age were continuing to work. He had made that decision in about 2000.
52 The plaintiff denied it was ever his intention to retire at sixty five. He did not believe he told the rehabilitation people he wanted to retire at sixty five but that he had to keep working because he was receiving compensation.
53 When asked about discussions with Dr Jabbar in 2004 about retiring, the plaintiff initially said Dr Jabbar suggested to him that if he had shoulder pains then stop working. The plaintiff agreed that Dr Jabbar probably suggested the plaintiff retire in 2004 because the plaintiff had a number of problems.
54 In re examination, the plaintiff confirmed that it was his intention to keep working until seventy and his wife intended to work until sixty five
Summary of Income Taxation Returns
Financial Year ending Gross Income 30 June
2002 $55,396
2003 $58,870
2004 $47,531
2005 $46,187
2006 $47,053
2007 $41,308
2008 $44,172
Medical Treatment
55 During 2005, the plaintiff was sent to Mr Pullen, an orthopaedic surgeon, who wanted to operate on his left shoulder. Liability was accepted for the surgery, however, the plaintiff became scared and did not go through with it.
56 In cross examination, the plaintiff said that he could probably remember having a CT scan on his back in August 2006 but did not recall there was anything there.
57 During 2007, the plaintiff’s shoulder pain worsened and he was sent to another orthopaedic surgeon, Mr Dallalana, for a second opinion. He wanted to operate on both shoulders, but the plaintiff refused surgery because he was told there was no guarantee of success.
58 As of April 2010, the plaintiff required continuing medical treatment from his general practitioner, Dr Sathianathan who prescribed medication including Nurofen, Voltaren and Temazepam. The plaintiff did not like taking those drugs, especially Voltaren, because it gave him stomach problems.
59 The plaintiff also then continued to see the doctors at OccWest who provided certificates stating he was unfit for any work. He had physiotherapy until 2009, which gave him short term improvement. However, the pain levels would return.
Pain and Restrictions
60 The plaintiff deposed in April 2010 that he was very restricted physically because of his injury and he continued to have pain in both shoulders. He also had an aching feeling most of the time in both shoulders.
61 When the plaintiff tried to do things using his arms, he got increased pain. He had difficulty lifting, pushing, pulling or doing anything overhead with his arms. He had difficulty steering his car and using the gears. He felt weak, vulnerable and dependent on others.
62 The plaintiff’s sleep was terrible, as he often woke up in pain.
63 The plaintiff’s enjoyment of life had suffered. He found it very difficult and less pleasurable to play his guitar. His fitness had worsened. He no longer rode a pushbike. He tried to swim, however, that often aggravated his shoulders.
64 The plaintiff no longer did handyman tasks around the house. WorkCover paid for someone to mow the lawn and do the gardening.
65 The plaintiff could not make bookshelves or furniture like he used to and had difficulty with day to day tasks such as washing his hair, drying himself after a shower and putting on shirts and jumpers.
66 The plaintiff’s injury affected his relationship with his wife and family. His physical relationship with his wife had suffered due to his pain. He was low, grumpy and irritable, which caused arguments.
67 In his most recent affidavit sworn in July 2011, the plaintiff confirmed there has been no change in his physical condition since he swore his earlier affidavit and he continues to experience the pain and restriction he described.
68 The plaintiff’s shoulder pain is constant. He also experiences a pulling sensation across his shoulders, especially when he moves his arm. He suffers from regular headaches, which he attributes to his shoulder pain.
69 In cross-examination, the plaintiff explained his shoulder pain fluctuates. The right shoulder hurts the most and there is a slight difference between the two.
70 The plaintiff did not remember telling Mr Doig his right shoulder was not as bad as his left, but he probably did. It could be the case that it was not nearly as bad as the left, but the pain was definitely there.
71 In re examination, the plaintiff agreed his shoulder pain fluctuated and he has never been pain free in relation to his left shoulder.
72 Whilst Dr Wilkinson might refer to the plaintiff having ongoing problems with both his neck and shoulders in his reports, the plaintiff goes to see him for his shoulder. The plaintiff’s neck is no longer a problem. It just gradually stopped being so. The plaintiff agreed however that at some stage he would have complained about his neck. He had told Dr Wilkinson his neck pain was minimal in about May or June 2011.
73 The plaintiff currently takes about two Nurofen tablets a day, and sometimes up to five or six. He also takes five to six Panadol tablets a week for his shoulder pain. He continues to see Dr Wilkinson, who certifies him unfit for any work.
74 The plaintiff has difficulty sleeping on either side. However, because he generally sleeps on the left, his left shoulder sometimes causes him greater pain in the night.
75 As a result of his difficulty sleeping, the plaintiff goes to bed quite late and on average he wakes up at least once a night. He estimates he only gets three to four hours’ sleep per night and is usually fatigued when he wakes in the morning.
76 WorkCover has now ceased paying for mowing and gardening assistance. As there is now no one else available to do these tasks, the plaintiff has been cutting the grass about monthly using an electric mower. However, when he does so, the pain in his shoulders is significantly stronger for about the next three to five days, during which time his Nurofen intake increases to about six tablets a day.
77 The plaintiff is unable to enjoy holidays as he did before his injury. He cannot lift up, carry, or play games with his grandchildren without hurting himself, and that upsets him greatly.
78 Given the difficulties he has washing his hair and putting on shirts and jumpers, the plaintiff requires his wife’s assistance in that regard.
79 The plaintiff has now stopped swimming.
80 In cross examination, the plaintiff confirmed that he had stopped all swimming since he hurt his shoulders because it causes him pain. He last went swimming at Fawkner pool, perhaps in 2003 to 2004.
81 The plaintiff went on bike rides for about fifteen to twenty years and last went for a ride along Merri Creek perhaps in 2003 to 2004. He gave his pushbike away in 2004 to 2005, or earlier.
82 The plaintiff agreed he might have told Dr Cole in 2000 that he had stopped riding his bike because he was scared and because the bike path was rough. However, it took a while before he actually stopped riding and then he started again. He could not really remember. He thought he did stop in about 2000, but every now and then he would ride. As of the time of injuring his shoulders, he was still riding in the court near his home.
83 In re examination, the plaintiff described pain in his shoulders when he tried to ride his bike.
84 The plaintiff confirmed that guitar playing had been a passion, especially on weekends. He had done very, very little, if any, guitar playing since he hurt his shoulders as he found it hard to strum the guitar. However, it was not as if he was playing all the time, he just played whenever he had the chance to.
85 In re examination, the plaintiff said that his ability to play the guitar diminished greatly after 2004 as he had problems strumming. He had a feeling like pins and needles in his shoulders and a sort of pulling sensation. He also had problems concentrating.
86 In cross examination, the plaintiff was asked about his level of activity and shoulder movement. Only in extreme cases, but with pain, could he do activities with either arm held above shoulder height
87 The plaintiff can look after up to three of his grandchildren aged under five, two or three days a week, while their parents go to work. His wife started looking after the grandchildren when she stopped working, perhaps about two years ago. Essentially she looks after the children but the plaintiff does engage with them.
88 The plaintiff has some social life but really the only companion who consoles him is his wife.
89 The plaintiff can do simple tasks on the computer. He would like to use it for longer but can only do so for half an hour or so. He does not think he would be able to do any computer based work due to his limited computer skills.
Video Surveillance
90 Two short videos, the first of eight minutes and the second of twelve minutes were shown.
91 The first was taken on 18 November 2010. The plaintiff was shown initially at Myer at Northland. He then went to a supermarket where he was shown pushing a trolley.
92 On two separate occasions, the plaintiff raised his arm above shoulder level and retrieved a small grocery item from the shelf. When it was suggested to him, he did not show any discomfort doing so, the plaintiff explained that he had taken a number of painkillers to try and live a normal life, despite his condition.
93 The plaintiff was also shown on one occasion closing the hatchback of his car. He agreed he did so but said “you do not reason things out as you are doing them.” He is used to pain, so it would have been an instinctive reaction to push the back of the car down.
94 In my view, these three instances were not really inconsistent with the plaintiff’s evidence or his description of his level of activity. He was not engaged in any repetitive or extensive use of his arms over shoulder height.
95 There was a second video of twelve minutes’ duration taken on 28, 30 and 31 July 2011.
96 On 28 July, the plaintiff was again shown at Northland Shopping Centre, this time with his wife and grandchild aged three. The plaintiff was shown briefly lifting his grandchild to about waist height to look at the cake display. Later in the film the plaintiff was shown lifting the hatchback.
97 The plaintiff explained that he never said he could not do anything, but he did things always in pain. He worked through pain.
98 On the final day, the plaintiff was shown briefly at Crown Casino.
99 In my view, what was shown on the second DVD did not indicate a level of activity inconsistent with the plaintiff’s evidence.
Lay Evidence
100 The plaintiff’s wife, Carolina Mosticone, swore an affidavit on 11 July 2011.
101 Mrs Mosticone is presently aged fifty five. She married the plaintiff at the age of sixteen.
102 Mrs Mosticone was attracted to the plaintiff because of his youthfulness and the fact that he was healthy and energetic. However, since suffering injury at work with the first defendant, the plaintiff appears to have aged significantly.
103 The plaintiff used to enjoy riding his pushbike most weekends but he no longer does so. He also used to serenade her with his guitar and about monthly took her to dinner dances, which they both enjoyed immensely. Since his injuries, the plaintiff stopped playing his guitar for her and has ceased attending the dinner dances.
104 Prior to his work injury, the plaintiff was a very independent man. He now requires her assistance with washing his hair and putting on shirts and jumpers.
105 The plaintiff used to wash the windows and do the vacuuming. He is now dependent on her for most of the domestic chores. Since WorkCover ceased paying for gardening assistance, the plaintiff has mowed the lawn himself, as it is not something she can do. When he does this, however, he appears to be in a greater amount of pain than usual and she has observed him taking larger amounts of medication in the following days.
106 At times, the plaintiff’s restrictions have caused a strain on their relationship. Furthermore, the plaintiff is now less able to assist his children in their lives due to his physical limitations and she has noticed that he has grown distant from them.
107 Before he suffered his injuries, the plaintiff was a very happy and sociable person. However, these days he is quieter and withdrawn and spends most of his time on the computer. He is detached and does not talk as much or leave the house as much as he previously did. He appears to avoid mixing with other people and recently he did not even want to attend their granddaughter’s birthday party.
Claim Documentation
108 The plaintiff lodged a Claim for Compensation dated 6 August 2004 in which he set out he had strained his neck and shoulder on 23 June 2004, when he was moving a pallet of Kit Kats with a hand trolley, whilst working as a forklift driver.
109 The employer’s Claim Form set out the plaintiff was working thirty six hours a week earning $705 per week, with regular shift allowances of $78. It was noted that he had returned to work full time on restricted duties.
110 By letter dated 20 October 2004, Cambridge Integrated Services
(“Cambridge”) advised liability had been accepted for the reasonable costs of
medical and life expenses relating to the 23 June 2004 injury.
111 By letter dated 27 September 2005, Cambridge advised Mr Pullen that it accepted liability for the left shoulder arthroscopic subacromial decompression and rotator cuff repair he wished to carry out.
112 By letter dated 14 August 2007, the plaintiff was advised that Cambridge had approved the reasonable costs for an arthroscopic decompression and repair of the supraspinatus tendon with the addition of a biceps tenodesis.
113 By letter dated 27 August, 2007, the first defendant advised the plaintiff his employment would be terminated in a week. The first defendant noted that the plaintiff’s treating doctor, Dr Ugwu, continued to provide certificates of capacity, stating the plaintiff was unfit for all work and he had imposed a lifting limit of no more than two and a half kilograms, no repetitive neck movement and no work above shoulder height. Dr Ugwu also advised that the incapacity was expected to be permanent.
114 Taking into account the plaintiff’s medical restrictions and physical capacity, the first defendant advised the plaintiff there were no suitable positions available for him and that the decision had been made to terminate his employment.
115 By letter dated 1 August 2008, Cambridge advised the plaintiff that liability had been accepted for home help in relation to his bilateral shoulder pain. Cambridge also advised it agreed to the management plan for his physiotherapy treatment as proposed by Joanne Banks, for a maximum of twenty eight physiotherapy sessions from 12 November 2008 to 12 February 2009.
116 The plaintiff lodged a claim for impairment benefits on 23 December 2005 in relation to injury to both shoulders, both ankles, both feet, right arm, legs, neck and psychological impairment.
117 By letter dated 18 April 2007, Cambridge advised the plaintiff that his claim pursuant to Section 98C had been accepted in relation to the left and right shoulder and his psychological condition.
118 In a return to work plan dated 13 June 2006, the plaintiff’s injury was described as bilateral shoulder pain and there was no reference to the foot condition. Similar plans were issued until August 2006.
The Plaintiff’s Medical Evidence
119 Dr Jabbar reported in December 2000 that the plaintiff had been a patient of his since October 1997.
120 Dr Jabbar noted the plaintiff had been involved in a car accident in August 1997 and came to see him with a painful neck and left shoulder. X-rays of the cervical spine were organised. The rest of the general examination was within normal limits. Dr Jabbar noted there were no neurological or musculoskeletal deficits.
121 Dr Jabbar noted the plaintiff’s problems with claustrophobia and hypertension.
122 Dr Jabbar reported the plaintiff had been complaining of pain in the back of the neck all the time but, since July 2000, he had been complaining of pain in the right shoulder and arm. He was also complaining of a painful right forearm, which he said was due to lifting a trolley at work. A right shoulder ultrasound was carried out.
123 The plaintiff had a benign lipoma diagnosed on his right forearm.
124 Dr Jabbar considered that the plaintiff’s fork lift driving duties had definitely caused him a painful right shoulder and arm, giving him tendinopathy of the supraspinatus tendon and probably giving him a rotator cuff tear. He noted the plaintiff had had physiotherapy and some analgesics for the pain.
125 Dr Jabbar reported he last saw the plaintiff in November 2000 when the plaintiff was still complaining of aches and pains, especially in the right shoulder. The plaintiff was then prescribed Celebrex.
126 Dr Ugwu reported in September 2006. He noted that the plaintiff presented on 24 June 2004 with pain in both shoulders. The plaintiff told him he believed that work requiring repetitive lifting of arms above shoulder height to pick trays and load chocolates precipitated his shoulder condition. Dr Ugwu noted the plaintiff had had shoulder pains in the past.
127 Dr Ugwu noted the plaintiff had been employed with the first defendant for more than twenty years as a fork lift driver and on the process line. His pre- injury duties were in the biscuit palletiser position, which involved lifting, pulling and pushing of trays repetitively above elbow height, but away from the body, during the whole eight hour shift.
128 Dr Ugwu noted with the restricted duties imposed at the onset of his shoulder condition, the plaintiff was transferred to the washroom section which required him to load trays onto a washing machine and remove and stack them when they were clean. Dr Ugwu noted repetitive lifting, sometimes at shoulder height, was involved and the work was performed in a standing position.
129 Noting medical history of blood pressure and a surgical incision on the right arm, Dr Ugwu mentioned the plaintiff also had bilateral plantar fasciitis and callosity on the heels for which he was receiving ongoing management. The plaintiff also reported intermittent neck pain that had been successfully managed as soft tissue strain in the past.
130 Dr Ugwu reported that the plaintiff had said he enjoyed his work but he had expressed the view in the past that he would like to be “boarded”.
131 The plaintiff’s bilateral shoulder condition worsened and by April 2005 another orthopaedic referral was made and surgery proposed. But again, the plaintiff was apprehensive and did not proceed.
132 The plaintiff was referred for physiotherapy and placed on anti-inflammatory medication. Restrictions included no work above shoulder height and no repetitive shoulder movement. Work hours were reduced when there was a marked flare up of pain.
133 Dr Ugwu noted the plaintiff continued to report bilateral shoulder pains, which were provoked by movement and that it had been difficult to identify suitable duties to comply with his medical restrictions.
134 Dr Ugwu thought the bilateral full thickness supraspinatus tear was consistent with work requiring repetitive shoulder movements and work above shoulder height. Whilst that condition could result from non occupational activities, particularly with a worker of the plaintiff’s age, the plaintiff’s manual handling exposures led Dr Ugwu to conclude work was a significant factor in the onset of the plaintiff’s pathology, and as such his condition was work related. He did not believe the plaintiff was capable of performing pre-injury duties with his existing shoulder condition.
135 A work site visit conducted by Dr Ugwu on 29 August 2006 was not able to identify any suitable alternative duties.
136 Dr Ugwu thought even without the problem of plantar fasciitis, there would still be no suitable duties for the plaintiff at the current work site. He thought the shoulder incapacity was permanent.
137 Dr Ugwu considered the plaintiff unable to perform work above shoulder height, lift more than five kilograms, or perform repetitive shoulder movement tasks. Whilst there was no suitable role identified with the first defendant, Dr Ugwu would not go as far as stating the plaintiff was totally incapacitated.
138 He considered further management would consist of training the plaintiff on self management of pain by massage and use of appropriate pharmaceutical measures to control pain.
139 Dr Wilkinson at OccWest took over the plaintiff’s care from Dr Ugwu in about late 2007.
140 On 11 November 2008, Dr Wilkinson reported to Cambridge that the plaintiff had neck and bilateral shoulder pain. With that pain, he believed the plaintiff was unfit for all work and would remain so if he did not have an operation on his shoulders.
141 Dr Wilkinson advised the likely benefit of physiotherapy was pain relief and it would mean the use of less analgesics. At that stage, he thought the plaintiff would not return to work, so the physiotherapy was more likely to assist him in coping with activities of daily living.
142 In his report dated 11 July 2011, Dr Wilkinson summarised the examinations of the plaintiff from November 2008 until June 2011. Essentially during that time, the plaintiff’s neck and bilateral shoulder pain was unchanged and he was seeing a physiotherapist fortnightly as at the end of 2010.
143 Dr Wilkinson diagnosed cervical spondylosis and bilateral supraspinatus tears. He thought the plaintiff’s prognosis was poor and he recommended physiotherapy and Nurofen.
144 In his view, the plaintiff was precluded from activities involving repetitive pushing, pulling or lifting, repetitive and prolonged use of the shoulders and overhead activities. He thought the plaintiff could only do a minimal amount of those activities on a day to day basis and he considered that incapacity would continue into the foreseeable future. He thought the plaintiff was then not able to perform his pre-injury duties due to his bilateral shoulder pain – a situation that was permanent and would exclude any productive employment.
145 Dr Wilkinson considered that the plaintiff permanently required help with physical activities such as lawn mowing. He thought the plaintiff had chronic pain and he expected it to cause him some distress.
146 A number of VWA certificates of capacity relating to the plaintiff’s shoulder condition were relied upon by the plaintiff.
147 On 24 June 2004, Dr Ugwu certified the plaintiff fit for modified duties with lifting and pulling/pushing restrictions. Similar certificates were provided over the following months. On 3 November 2004, the plaintiff was certified totally unfit for work for two days. Dr Jabbar gave a similar certificate on 31 January 2006 and 10 May 2006 (three days).
148 Modified duties were certified through 2006 and the first half of 2007. From August 2007 the plaintiff was certified totally unfit whilst waiting for shoulder surgery. Total incapacity certificates were provided until from October to December 2007, throughout 2008 and 2009, the last being dated 3 March 2010.
149 Mr Pullen, upper limb orthopaedic surgeon, wrote to Dr Ugwu in May 2005, thanking him for referring the plaintiff
150 Mr Pullen noted the plaintiff presented with a nine month history of bilateral shoulder pain, with right equal to the left, which had been gradual in onset with no precipitating cause.
151 On examination, the plaintiff had positive impingement on both sides and his ultrasound showed a full thickness tear of his rotator cuff on both sides.
152 Mr Pullen agreed that the plaintiff had bilateral rotator cuff tears of both shoulders which were symptomatic and would be best served by arthroscopic surgery, which he discussed with the plaintiff.
153 Mr Pullen reviewed the plaintiff in September 2005, when he was still having shoulder problems. Mr Pullen suggested he perform a left shoulder arthroscopic subacromial decompression and right rotator cuff repair. Whilst noting the plaintiff was keen to proceed with that surgery, Mr Pullen warned him about there not being a one hundred per cent guarantee but noted the plaintiff was still keen to go ahead.
154 Mr Dallalana, orthopaedic surgeon, saw the plaintiff on referral from Dr Ugwu in July 2007.
155 He noted the plaintiff had a long history of bilateral shoulder pain and stiffness, working many years in the manufacturing line where he was required to raise his arms above shoulder height, but he was now doing light duties.
156 Mr Dallalana noted the plaintiff’s disability had worsened to the point where he had constant pain, which was worse at night, and when elevating his arm. There was a significant impairment of regular daily activities, including dressing and driving. The plaintiff had had some physiotherapy and an injection in the left shoulder, but without any significant improvement.
157 On examination, there was marked restriction of shoulder movement, particularly on the left. There was generalised tenderness around the bursa and AC joint, specifically on the left, and rotator cuff function was weak but present.
158 Mr Dallalana suggested further imagining. He thought the plaintiff was suffering from chronic impingement in both shoulders and that he may well have bilateral rotator cuff tears. Mr Dallalana noted a recent ultrasound of the left shoulder was suggestive of a supraspinatus tear on the left.
159 Mr Dallalana also noted the plaintiff had a very stiff cervical spine and a positive Tinel’s sign at the left elbow. In his view therefore, the plaintiff had two possible aetiologies for the numbness in his ulnar nerve fingers of the left hand.
160 On 7 August 2007, Mr Dallalana advised the first defendant of investigation findings including a tear of the supraspinatus tendon, bursitis and arthritis of the AC joint in both shoulders and, on the left, the problem with the biceps tendon. He advised the plaintiff required surgical intervention as his symptoms were prolonged and had been refractory to conservative treatment, and he proposed arthroscopic decompression and repair of the supraspinatus tendon with the addition of a biceps tenodesis if indicated.
161 On 7 August 2007 Mr Dallalana also advised Dr Ugwu that he had requested WorkCover fund the shoulder surgery and that he proposed to start with the left side which was then more symptomatic.
Medico-Legal Examinations
162 Mr Conroy, orthopaedic specialist, examined the plaintiff at the request of Cambridge in March 2006.
163 The plaintiff described how over the last two to three years there had been increasing pain in both shoulders, which he attributed to work activity.
164 On examination, there was no shoulder deformity or tenderness. The only abnormality was the restriction in the range of motion.
165 Mr Conroy diagnosed bilateral rotator cuff dysfunction consequent upon ligamentous injury and carried out an AMA assessment.
166 Mr Hugh Weaver, orthopaedic surgeon, examined the plaintiff on behalf of Cambridge in April 2006.
167 The plaintiff described to him a progressive onset of bilateral shoulder symptoms over the period of the last two years. The plaintiff told him that his work tasks apparently changed to some extent within recent times, however he then said he was actually working with a particular machine at a certain height that involved a bit of pushing and pulling, which aggravated his symptoms.
168 On examination, there were limitations of movement in both shoulders, more marked on the right than left. Overall, however, there was reasonable movement in directions other than flexion and abduction.
169 On viewing the 2004 ultrasound, Mr Weaver could see without difficulty there were indeed full thickness tears present involving the supraspinatus tendon of both shoulders.
170 Mr Weaver thought the plaintiff clearly presented both with clinical and ultrasound evidence to confirm he was suffering from a bilateral rotator cuff problem affecting his shoulders, something which took the form of a supraspinatus tear. Mr Weaver noted that the pathology undoubtedly represented a combination of the ageing process and also of the aggravating effect of employment activities. Therefore, he had no difficulty in arguing the overall character of the plaintiff’s work activity, as performed right up to the present time, had represented a significant contributing factor to his situation.
171 Mr Weaver thought the plaintiff presented as a well motivated individual who had managed to remain in active employment, notwithstanding his problems. While the plaintiff told Mr Weaver he wanted to keep working, Mr Weaver thought the plaintiff was almost certainly going to experience ongoing bilateral shoulder problems, as long as he continued to work, and he would therefore require treatment. He advised that if the plaintiff was going to continue in his current duties, he was going to have further problems. Mr Weaver thought surgery was of limited value.
172 The plaintiff was first examined by Dr Castle, occupational health and rehabilitation specialist, in October 2006.
173 The plaintiff told him that his neck felt painful and woke him every night. Both arms felt weak. He could not lift his right arm above his shoulder. His feet were a problem and he wore special shoes. Because of his ankle problems, he could not move easily. He woke three or four times a night because of pain generally.
174 Dr Castle noted the plaintiff’s present condition was that he was in a significant amount of pain in a number of joints.
175 Dr Castle described the plaintiff as a sixty five year old man with a significant disability following several injuries, who was restricted in what he could do. He thought the plaintiff’s neck pain was due to his work and significantly contributed to the exacerbation of his underlying intervertebral disc disease, noting the plaintiff was not able to tell of any specific incident affecting his right arm.
176 Dr Castle thought the plaintiff’s right foot problem was caused by his employment and his calf pain was of uncertain diagnosis. He considered the prognosis was guarded and he expected the plaintiff would stay much the same.
177 Dr Castle thought the plaintiff was totally disabled, noting he had significant pain with restricted movement of his neck. He had restricted movement of his right arm, difficulty moving his ankles and he had pain in both calves. In addition, the plaintiff had frequent panic attacks and felt depressed.
178 Dr Castle re-examined the plaintiff in July 2011.
179 The plaintiff told him he started to feel pain in his shoulders, originally a light pain, and in about 2002, it worsened. His job then involved lifting, pushing, pulling and manipulating things. He then had an incident where his pain got worse, pulling a pallet. Both shoulders were affected, worse on the left.
180 The plaintiff told Dr Castle of a continuous light pain and pulling sensation in his shoulders. Bending his arms and raising them and lifting or pulling anything made his shoulder pain worse. He had some neck pain. He was unable to do any overhead activities and he was only able to engage in prolonged use of his shoulders for a few seconds.
181 Dr Castle diagnosed bilateral supraspinatus tears, tendinopathy and
subacromial bursitis. He noted the plaintiff had neck pain due to aggravation
of degenerative change of his cervical spine.
182 Dr Castle reported the present symptoms were pain in both shoulders, aggravated by any movement. He considered the plaintiff needed to continue his current medications. He thought the prognosis was guarded and did not think there was an increased risk of developing arthritis.
183 Dr Castle thought the plaintiff had no capacity to do his pre injury work because of the severity of his shoulder pain and restriction of movement, as a result of bilateral adhesive capsulitis.
184 Dr Castle noted the plaintiff had very limited education and difficulties with English. His skills and work experience had all been in manual work, either in glass factories or in the confectionary industry, where he did heavy manual work. In his view, the plaintiff was permanently markedly restricted in relation to social, domestic and recreational activities and was able to do few domestic tasks.
185 Dr Castle thought the plaintiff had no ability to work as a product examiner or package filler, as suggested in a vocational assessment in 2008. His English was not suitable for him to work as an elementary clerk. The only possible job option would a crossing supervisor. However, the plaintiff would not be able to stand for the length of time required and would not be able to do that work reliably and consistently from day to day.
186 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in February 2010.
187 The plaintiff told him that in about 1989 he developed some left shoulder pain after no specific injury. He was off work for about a month to allow it to settle down and he returned to work. He did not completely recover but he was able to get back to full time duties.
188 Around the same time, the plaintiff developed some right shoulder pain but not as bad as the left, which was the focus of treatment. These injuries came on as a gradual process type injury because he had continued to do heavy jobs. The plaintiff developed more and more pain as a result of his fork lift activities and also having to lift, push and carry. He was then put on light duties but that did not really help, because he had to work fairly fast and keep up the pace in the washroom. He was then referred to Mr Pullen and had a further opinion later from Mr Dallalana, who recommended surgery.
189 Mr Doig noted the plaintiff’s left shoulder was still sore. His right shoulder was similar, although he felt it was not nearly as bad as his left. The plaintiff denied any other significant illnesses in the past.
190 Mr Doig thought the plaintiff’s work had been a significant contributing factor to his current condition. That work was specifically from the period after 20 October 1999, although he did note the plaintiff had some problems with his shoulders prior to that, but was nevertheless able to work full time.
191 Mr Doig diagnosed bilateral partial thickness tear of the supraspinatus, with no clinical evidence of a full thickness tear. He thought the prognosis was very guarded and that the plaintiff would continue to have ongoing pain and disability in his shoulders.
192 He considered the plaintiff’s complaints of ongoing pain were consistent with the pathology that had been demonstrated both clinically and radiologically.
193 Mr Doig noted the plaintiff was not able to cut grass, do house maintenance or ride his bike, but he could swim.
194 Mr Doig re-examined the plaintiff in June 2011. The plaintiff told him that since the last examination he felt he had slowly and steadily deteriorated. His shoulders were equivalent, with the right being a little worse than the left, but that was certainly not marked.
195 Mr Doig’s assessment remained essentially unchanged and he thought the plaintiff was really very little different when he saw him and it was unlikely he would significantly change in the future.
196 In a supplementary report of July 2011, Mr Doig commented on some material forwarded to him about the plaintiff’s neck complaints around 2000.
197 In Mr Doig’s view, whilst the general ageing process may certainly contribute to deterioration in the plaintiff’s shoulders, that contributed no more than twenty per cent. Mr Doig did not consider the 1997 car accident had contributed significantly to the plaintiff’s shoulder problems because the plaintiff had a full range of movement when assessed in 2000.
Investigations
198 On 13 September 2000, Dr Jabbar organised a right shoulder ultrasound.
199 It was reported that the supraspinatus tendon demonstrated irregular echo texture within its mid zone and slight thickening in comparison to the left. It was noted the appearances suggested tendinopathy.
200 There was no demonstration of a full thickness rotator cuff tear. The subscapularis and infraspinatus tendons appeared intact and no impingement occurred with dynamic scanning. The reporter concluded there was probable tendinopathy of the supraspinatus tendon and no demonstration of a full thickness rotator cuff tear.
201 On 19 April 2004, Dr Jabbar organised a bilateral shoulder ultrasound, which showed bilateral full thickness supraspinatus tendon tears.
202 Dr Sathianathan, organised a left shoulder ultrasound on 26 April 2007.
203 It was reported there was an area of the textural irregularity involving the distal supraspinatus with an overall diameter of 16.6 x 12.4 millimetres. It was reported appearances were consistent with an area of supraspinatus tendinopathy. Centrally, within this, there was a focal full thickness tear. Increased fluid in the shoulder joint and in the subacromial bursa was noted with impingement on abduction.
204 A bilateral shoulder x-ray was organised by Mr Dallalana on 20 July 2007.
205 Bilaterally, there was mild glenohumeral joint space narrowing and only very mild acromioclavicular joint arthropathy. There was a curved under surface to both acromion but no subacromial spurs were seen.
206 An MRI scan of the left shoulder was also carried out in July 2007. It was reported that there was a partial thickness articular surface insertional tear of the supraspinatus tendon, with a background of tendinopathy. There was tendinopathy and mild bursitis.
207 An MRI scan of the right shoulder was also carried out on the same date. It was reported there was supraspinatus tendinopathy and a partial thickness articular surface insertional tear. There was mild subscapularis tendinopathy and moderately severe bursal inflammation.
208 Dr Sathianathan organised a left biceps ultrasound on 3 October 2007. It was reported there was a partial thickness tear of the supraspinatus muscle tendon. The biceps muscle was normal, in particular the long head of biceps demonstrated no abnormality.
Medico-Legal Examinations in Relation to the 1997 Car Accident
209 Dr Clayton Thomas, consultant in rehabilitation medicine, saw the plaintiff on 29 June 1998, following a referral from Mr Khan, orthopaedic surgeon.
210 Dr Thomas reported that since the car accident, the plaintiff’s primary problem had been one of neck pain, which remained problematic and worse with activity and lifting objects and he also had difficulty with driving.
211 Dr Thomas thought the plaintiff had a soft tissue injury and referred him to Dorset Private Rehabilitation for a more active exercise approach.
212 Having been provided with details of the plaintiff’s pre-accident history, Dr Thomas thought it quite reasonable, given the significance of radiology reports showing degenerative changes, to suggest the plaintiff would have had some neck pain prior to the car accident, but noted the plaintiff denied that was the case.
213 Dr Thomas thought the plaintiff’s level of incapacity was extremely small.
214 The plaintiff saw Mr Hadley, orthopaedic surgeon, at the request of his solicitors in October 2000.
215 The plaintiff told him that since the car accident, he had neck pain spreading to his right shoulder and also pain in his low back. Three weeks after the accident, he had resumed working full time in normal duties, and had continued to have pain all the time in his neck and low back. About a month after the car accident, he had “pins and needles” down his right arm. About two months ago, Dr Jabbar gave the plaintiff a cortisone injection in his right shoulder, which he said did not help.
216 As a result of being in the car accident, Mr Hadley thought the plaintiff was suffering from a chronic strain in the attachment of muscles to his cervical, thoracic and lumbar regions, in the upper part of his right and left trapezius muscles and in the attachment of muscles to his shoulders, from injury to his cervical and lumbar discs, with causing or aggravating spondylosis in his cervical and lumbar regions. Since the accident, the plaintiff had also been nervous and depressed.
217 Mr Hadley then thought the plaintiff was able to continue working as a fork lift driver, provided he was not doing frequent forward bending and heavy lifting. He thought the prognosis for the plaintiff’s condition would remain much the same but, as he got older, he would probably develop spondylosis in his cervical and lumbar regions to a greater degree than if he had not been involved in the car accident.
218 In a letter of 30 November 2000, Mr Hadley advised TAC that after the car accident, the plaintiff had complained of neck pain, which spread to his right shoulder, and the plaintiff also reported pain in the low back down to his thighs.
TAC Claim Documents
219 The collision report was tendered as was the TAC claim form dated 18 August 1997 where the plaintiff claimed injury to the right shoulder and neck, stating he was in good health before the accident.
220 A TAC Physiotherapy Treatment Notification Plan dated 14 October 1997 set out the plaintiff first saw Mr Takyar in October 1997 and it was proposed at that stage that the plaintiff have twenty visits. It was noted the plaintiff’s reported symptoms were pain in the left neck and left shoulder.
221 There were further similar treatment plans in 1998 and 2001. The latter in September 2001 set out continuing suprascapular pain.
222 There was an outpatient rehabilitation plan from Dorset Private Rehabilitation Hospital dated 17 August 1998 which was not approved. It was noted the plaintiff’s current status was constant bilateral cervical and trapezius pain.
223 A TAC medical certificate dated 14 July 1998 completed by Dr Jabbar set out the plaintiff was suffering from a painful neck, painful left shoulder and back pain.
224 The defendant relied upon a report from Dr Thomas, consultant in rehabilitation medicine, who examined the plaintiff on behalf of the TAC on 29 June 1998. This report is part of the plaintiff’s evidence.
225 Dr Jabbar provided an Answer to Medical Progress Questionnaire from the TAC in April 1998, setting out the plaintiff suffered injury to his neck and left shoulder in the transport accident.
226 Dr Athol Morris, chiropractor, provided an Answer to Treatment Questionnaire on 20 April 1998, which was impossible to read.
227 Dr Jabbar reported to the plaintiff’s solicitors in August 2000. He noted that following the transport accident, the plaintiff presented with a painful neck and x-rays were ordered. He noted the plaintiff was sent to rehabilitation because of continuous neck pain, which had been problematic and worse with activity, especially with the plaintiff’s arms outstretched.
228 Dr Jabbar advised the plaintiff had a whiplash injury to his neck, noting he had disc degeneration changes present at C6-7. He thought the prognosis was fair, as it took a long time to recover from this whiplash injury. Dr Jabbar advised the plaintiff never complained about any neck pain before the accident and there was no reason to x-ray his neck before that time.
229 Dr Jabbar provided a report of 12 December 2000, in which he set out the plaintiff first attended his clinic after the accident on 6 October 1997 with left shoulder and neck pain, which the plaintiff advised he had had for two months since the accident. He referred the plaintiff for a CT scan.
230 Dr Jabbar listed in excess of twenty attendances at the clinic in relation to the car accident from 14 October 1997 to 10 November 2000.
231 Dr Jabbar referred the plaintiff to a physiotherapist by letter dated 25 May 2001. In the referral letter of that date, Dr Jabbar advised that the plaintiff was still having pain, and physiotherapy helped him in relation to his neck and left shoulder car accident injuries.
232 In August 2000 consultant psychiatrist, Dr Cole examined the plaintiff for the purposes of his transport accident claim.
233 The plaintiff told Dr Cole that his neck was stiff and painful and he was troubled by pain in his shoulders and upper back, which never went away. He used to ride a pushbike but he did not ride anymore, partly because he was scared on the road and partly because the local bike path was rough. The plaintiff still played his guitar occasionally and went for walks. He did not go to the pictures any more because he could not sit for long. He was worried he did not feel like he used to and he did not have the same sense of energy.
234 Dr Cole thought the plaintiff was suffering from a chronic anxiety state and reactive depression of mild to moderate degree, which Dr Cole thought was stemming from the shock of the accident and the effect of the injuries that the plaintiff received.
235 Mr Visser, physiotherapist, wrote to the TAC on 1 June 2001 advising the plaintiff had been referred to him for physiotherapy treatment.
236 Mr Visser reported the plaintiff complained of neck and suprascapular pain, which was aggravated by lifting, overhead activity, static neck postures and driving his fork lift at work. The plaintiff had reported long standing pain but tried to manage independently until recently. Mr Visser felt the plaintiff was making progress with treatment and was following an active regime of neck stabilising exercises, stretches for upper trapezius-levator scapulae and postural exercises for the thoracic spine.
237 The plaintiff signed a release on 4 October 2001 finalising all entitlements in relation to the 1997 car accident, including the degree of impairment.
The Defendants’ Medical Evidence
238 Mr Chamberlain, orthopaedic surgeon, examined the plaintiff on behalf of Cambridge in November 2004.
239 The plaintiff indicated left shoulder pain came on about six months ago pushing a trolley and the pain had persisted. The plaintiff had pain in both feet over some years. He had ongoing discomfort in the left shoulder.
240 On examination, there was a full range of movement of both shoulders but with pain at extremes. There was no tenderness.
241 Mr Chamberlain noted the presence of left shoulder pain. Ultrasounds had shown evidence of bilateral rotator cuff tears which were not large. He thought it would have to be accepted that the plaintiff’s work may have been a contributing factor to the tears.
242 Mr Chamberlain also noted the plaintiff had bilateral foot pain which appeared to be some mid foot arthritis, constitutional in origin. Provided the plaintiff was doing suitable light work, Mr Chamberlain thought he should be able to continue working, where he was not lifting over ten kilograms. He thought there was likely to be some permanent impairment relating to the shoulders.
243 Dr Bloom, occupational physician, examined the plaintiff on behalf of Cambridge in December 2007.
244 The plaintiff complained to him of chronic pain and stiffness affecting his neck and both shoulders. He told Dr Bloom that his neck first became stiff six or seven years ago and that was followed by increasing pains in his left and then right shoulder. The plaintiff complained of constant pain in both shoulders and his neck.
245 On examination, movements of both shoulders were very restricted.
246 Dr Bloom noted clinical evaluation had been complicated by abnormal illness behaviour characterised by significant inconsistencies in examination findings. However, he noted the history and MRI scan imaging findings were consistent with bilateral rotator cuff tendinopathy.
247 Dr Bloom thought the plaintiff was not fit for his pre-injury unrestricted duties and would never be able to resume them in the future. He considered the plaintiff had a limited capacity for work avoiding handling items in excess of three kilograms and avoiding reaching and elevation of the arms. He thought the plaintiff should work with his elbows close to his side and be able to work in a relatively self paced manner.
248 Dr Bloom thought the main initiative required would be an offer of appropriate work duties within the physical constraints described, as the plaintiff had clearly become depressed and despondent and was also clearly concerned about his loss of income.
249 Dr Bloom concluded the plaintiff had evidence of chronic bilateral rotator cuff syndrome or tendinopathy. Dr Bloom thought that was a degenerative condition and age related, although it was reasonable to assume that the plaintiff’s work did serve as a contributing factor in the form of aggravation. He noted, however, since the plaintiff had ceased work, his condition had not improved.
250 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff for medico legal purposes on 28 March 2011.
251 The plaintiff told him of heavy work with the first defendant involving manual lifting. The plaintiff could not recall any significant history or past illnesses, other than a right arm injury with swelling in 2000, which he attributed to work and for which he underwent surgery.
252 Mr Simm noted the plaintiff first reported neck, shoulder and arm symptoms, which he attributed to repetitive work in 1989. The plaintiff was involved in a transport accident in 1997 and claimed for his neck and left shoulder injuries and had physiotherapy and chiropractic treatment.
253 The plaintiff claimed for sore feet in October 2003 and his claim was rejected.
254 In July 2000, the plaintiff started to notice right shoulder pain, pushing and pulling trolleys and lifting at work. In 2004 he had bilateral shoulder pain which was associated with manual handling at work, pulling a hand operated trolley.
255 The plaintiff confirmed that although most of his pain in 2004 was in the left side, at the time of the examination, both shoulders were painful.
256 Following the onset of left shoulder pain in 2004, the plaintiff had two weeks off work and was certified fit for light duties, with limited use of his arms below shoulder height. He remained on full time cleaning duties until his services were terminated. Although those duties were light, they required rapid and repetitive movements of his arms.
257 Mr Simm noted on formal examination, there was quite marked restriction of movement and movement seemed to cause discomfort. However, when distracted, movements of the cervical spine were undertaken normally without evidence of restriction or pain. There was no evidence of radiculopathy on examination of the upper limbs. Active movements of both shoulders were undertaken cautiously. There was quite marked restriction of movement.
258 Mr Simm saw the July 2007 MRI scan of both shoulders and the earlier ultrasounds.
259 Mr Simm concluded a review of those investigations and reports demonstrated the inconsistency and unreliability of shoulder ultrasound investigation, noting that the definitive investigation for rotator cuff pathology was the MRI scan, and in this case there were signs of tendinopathy with partial thickness changes in the supraspinatus tendons on both sides.
260 Mr Simm thought the plaintiff presented with a painful but essentially symmetrical restriction of shoulder movement. There were no specific clinical signs of rotator cuff tendinitis or dysfunction other than an equivocal positive painful resisted abduction of both shoulders, which he thought could represent a non specific pain response.
261 Mr Simm considered the most likely diagnosis for the bilateral shoulder pain was symptomatic degenerative rotator cuff pathology, but noted the signs and symptoms as presented were not typical of what he described as a common condition. He noted there were features of a chronic pain response with some discrepancy in the range of cervical movement.
262 Mr Simm thought there were no physical factors arising out of work that would prevent the plaintiff from performing similar modified work duties with another employer.
263 Mr Simm commented that the changes on MRI scan with tendinopathy with partial thickness tearing of the supraspinatus tendons, were common in the general population of the plaintiff’s age and the changes were not necessarily associated with symptoms. In the circumstances, with the presence of a chronic pain response, he would not operate on the plaintiff’s shoulders.
264 Dr Stephen Stern, psychiatrist, examined the plaintiff on behalf of Cambridge on 10 April 2007.
265 The plaintiff told him he began work with the first defendant in 1986 and within about five years, he experienced pain in his neck, shoulders and back. He had a few days off whenever necessary and continued on normal duties. He told Dr Stern that around 2003 he developed pain in both feet and shoulders.
266 In that year, the plaintiff was put on light duties with restricted lifting. In August 2006, he was cleaning a machine when he experienced neck pain and had not returned to work since.
267 On examination, the plaintiff complained of constant pain in his neck, shoulder, ankles and feet and recurrent low back pain and depression and anxiety.
268 Dr Stern thought the plaintiff was suffering from a Chronic Adjustment Disorder with mixed anxiety and depressed mood. He felt the plaintiff did not need psychiatric treatment and could be adequately managed by his general practitioner.
Return to Work and Vocational Documents
269 A number of return to work plans were tendered. The first, dated 17 January 2006, set out the nature of the plaintiff’s injury or illness as bilateral shoulders, feet/ legs. Restrictions were to the effect of: no lifting over seven and a half kilograms, work six hours a day, no work above shoulder level, no repetitive lifting, heavy pushing or pulling and five minutes’ rest break every hour. The work location was said to be baking A-S. It was noted the plaintiff “could operate a fork lift, trying thirty minutes at a time; washroom, all duties, must use transporter to move cage at all times”.
270 Subsequent return to work plans, dated 28 April and 22 May 2006, essentially were in the same terms, noting physiotherapy for the shoulder as being the relevant treatment.
271 The Victorian WorkCover Authority carried out a vocational assessment on 6 November 2006. Elementary clerk and crossing supervisor were identified as suitable employment options for the plaintiff, but the consultant recommended that due to multiple barriers faced to securing suitable employment, JSA would not provide a successful outcome and therefore was not recommended.
272 It was noted by the assessor that the plaintiff, prior to injury, had planned to retire at the age of sixty five, but that as a result of having to go on WorkCover, he now hoped to continue working for a couple more years for financial considerations. He expressed his desire to return to his factory and would be very happy to do so, if suitable duties could be provided. He also indicated it would be very difficult for him to work at a new place at that stage of his life.
273 There was a further vocational assessment carried out in January 2008 following which the jobs of product examiner, package filler, elementary clerk and crossing supervisor were identified as suitable employment options. There was a similar recommendation from the assessor.
274 It was noted the plaintiff expressed similar sentiments about his return to work capacity and was uncertain whether due to his physical limitations, he could do the jobs suggested, but noted he would be willing to learn another job, such as basic quality control.
275 There was an occupational assessment of the plaintiff’s gardening needs which was the subject of a report of November 2008.
WorkCover Claim Documentation
276 In July 2000, the plaintiff submitted a claim for an injury to his right arm which had swollen as a result of a repetitive job causing a lump. It was noted the injury occurred nine years ago working on Violet Crumbles. On 4 July 2000, Dr Jabbar certified the plaintiff totally unfit for a day for a strained right forearm.
277 Mr Peck, orthopaedic surgeon, saw the plaintiff on behalf of Allianz Insurance (“Allianz”) on 25 August 2000 in relation to his swollen right arm. Mr Peck thought that condition was of a constitutional nature and was a benign condition which was in no way connected to the plaintiff’s work.
278 The plaintiff made a claim on 21 June 1988 for an arm injury resulting from repetitive process work.
279 The plaintiff lodged a claim for neck and shoulder strain (repetitive), neck and shoulders and both arms on 29 June 1989 due to repetitive strain conveyor belt processing and packing.
280 There was a claim dated 27 July 1989 for neck and shoulder injuries as a result of repetitive process work.
281 Dr Arduca wrote to the manager of Rowntree Hoadley on 7 July 1989. He noted the plaintiff had chronic disc degenerative disease in the cervical spine, the pain in relation to which was genuine. Dr Arduca requested the consideration of alternative non - repetitive type employment which would assist the plaintiff in his pain management.
282 There was a claim dated 8 April 2004 for sore feet with a date of injury of 27 October 2003 as a result of “pulling hand truck out from under pallet of wafers”.
283 By letter dated 6 December 2004, Cambridge rejected the plaintiff’s claim for sore feet and legs said to have been sustained on 27 October 2003.
284 The plaintiff underwent testing for possible peripheral neuropathy at St Vincent’s Hospital on 11 February 2004. It was a normal study and there was no electrical evidence of a peripheral neuropathy.
285 Dr Jabbar wrote on 31 March 2004 that the plaintiff had painful legs and feet and had been investigated for his pain. He advised the plaintiff suffered with tendinosis of the right Achilles tendon and bilateral plantar fasciitis.
286 Dr Jabbar advised the plaintiff was on treatment and recovery might take a few months. The plaintiff was advised not to lift anything heavy, more than five kilograms, and not to perform any strenuous work which gave him forceful actions on his feet.
287 By letter dated 17 May 2004, Dr Jabbar advised the plaintiff suffered –
“… with multiple problems like cataracts, operation performed, gets painful ankles due Achilles tendinosis, bilateral plantar fasciitis, bilateral shoulder pain due to bilateral rupture of the supraspinatus tendons and chronic depression and tiredness.”
288 Dr Jabbar noted the plaintiff was advised to give up work completely and retire.
289 Dr Wilkinson reported to the Accident Compensation Conciliation Service on 17 June 2007. He advised the plaintiff had pain in the lower limbs with calluses in both feet, having first assessed him on 28 October 2003. Dr Wilkinson noted at that time the plaintiff had had gradual onset of pain in the left ankle for the previous two or three months. He also had pain in the outer right lower leg for five or six weeks. The plaintiff was referred for physiotherapy and to a podiatrist.
290 Dr Wilkinson noted the plaintiff was on his feet most of the time on his shift and this resulted in non-specific lower limb pain and callus formation.
291 Dr Wilkinson noted that on 10 June 2005, he certified modified duties with no lifting greater than ten kilograms or heavy pushing and pulling and for the plaintiff to take five minute breaks every hour. He advised that Dr Ugwu had issued a certificate for the plaintiff’s shoulder condition.
292 An x-ray of the plaintiff’s cervical spine and his right forearm was carried out on 3 July 2009. The x-ray of the cervical spine showed chronic disc degeneration present at the C5-6 and C6-7 levels. There was no bony or joint pathology detected in the right forearm.
Certificates Relating to the Foot Condition
293 A number of certificates relating to the plaintiff’s foot complaint were tendered. The first was dated 28 October 2003 in which Dr Wilkinson described “pain lower limbs” and suggested referral for physiotherapy. He noted the plaintiff was expected to be fit for normal duties.
294 There were similar certificates on 21 November and 12 December 2003.
295 On 30 January 2004, Dr Wilkinson certified the plaintiff fit for normal duties with the notation “needed special footwear to accommodate the inserts”.
296 Dr Wilkinson certified the plaintiff fit for modified duties from 25 February 2004 to 10 March with no lifting in excess of ten kilograms or prolonged standing because of pain in his lower limbs. There were similar certificates following the March, April and May 2004 examinations.
297 The plaintiff’s occupation was noted as fork lift driver in all those certificates.
298 The next certificate related to an examination in June 2005 following which Dr Wilkinson certified the plaintiff fit for modified duties with no lifting in excess of ten kilograms, no heavy pushing or pulling and the requirement to take a five minute break. The illness was described as plantar fasciitis.
299 Identical certificates followed examinations on 1 and 29 July 2005, 13 January, 10 February, 10 March, 7 April, 5 May, 9 June, 28 November 2006 and 16 January and 17 April 2007.
Overview
300 I am satisfied that the plaintiff suffered an injury to his shoulders referable to employment after 20 October 1999.
301 Whilst there may be some degenerative component in the plaintiff’s shoulder condition, I accept that it was aggravated by the heavy pushing and pulling of trolleys involved in the plaintiff’s duties and that the effects of that aggravation continue.
302 Clearly, in this case, the plaintiff had some problems with his shoulders in the late 1980s which he has admitted and disclosed to doctors at various times. However, I accept these problems were of a transient nature and did not require the plaintiff to take significant time off work.
303 The car accident in 1997, whilst affecting the plaintiff’s left shoulder and necessitating physiotherapy treatment until 2001, produced essentially soft tissue injuries.
304 When the plaintiff was examined by Dr Thomas in June 1998, Dr Thomas made no mention of any shoulder problem and on examination found both upper limbs to be normal. He diagnosed a soft tissue injury to the plaintiff’s neck and he considered the plaintiff’s level of incapacity was extremely small.
305 I accept that save for a problem with his right shoulder in July 2000, the plaintiff had no significant problems with his shoulders until 2004. It is not disputed that he performed heavy work and he did not require any time off work during this time.
306 Whilst there were these prior episodes of shoulder pain, if I am satisfied that the compensable injury during the course of employment after October 1999 in 2000 and, more particularly 2004, materially contributes to the impairment and its consequences, and will continue to do so permanently, then the role of the other injuries, namely any prior condition, does not preclude a court concluding that there was an appropriate causal link between the compensable injury on the one hand, and consequences relied upon on the other – see Ashley JA in Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at paragraph 58.
307 Further, I am mindful of the fact that the defendants accepted liability for the plaintiff’s claim relating to injury on 23 June 2004. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, 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.”
308 No such explanation has been forthcoming in the present case.
309 The shoulder condition has been diagnosed as bilateral supraspinatus tears. Surgery has been recommended in relation to both shoulders; however the plaintiff, in the absence of a guarantee of success, has not been prepared to undergo the procedures.
310 Counsel for the defendants submitted it was inappropriate to aggregate the right and left shoulder impairments as they came on at different times.
311 Counsel for the plaintiff submitted that it was appropriate to aggregate the plaintiff’s shoulder injuries as they arose out of a work process. In any event it was submitted the plaintiff had a serious injury in relation to each shoulder separately.
312 I accept that in the present case, the plaintiff’s shoulder condition arose as a result of the heavy nature of his duties during the period of employment, particularly in 2004 when he experienced problems with both shoulders and sought treatment in relation thereto.
313 In Grech v Orica (supra) and Sabanovic v Atco Controls Pty Ltd (2009) VSCA 143 (18 June 2009), where the relevant compensable injury was bilateral carpal tunnel syndrome, this issue was not raised.
314 Whilst there is also authority of this Court to the contrary - see Judge O’Neill in De Luca v Pinkey & TAC [2007] VCC 1307, I accept, as Judge Duggan held in Raimondo v Hoi Yeung Pty Ltd (trading as Oceanic Food) [2005] VCC 1400, that where a worker has sustained injury using both hands in manual work, it would be difficult to accept that this did not represent the use of a single body function: see also Judge Misso in Guiliano v Red Robin Pty & Anor [2008] VCC 1805 and Judge Anderson in Wright v Mount Edisar [2006] VCC 410.
315 Thus I accept, in the present case, that the injury the plaintiff sustained to both shoulders was to a single body function, namely his capacity to work manually in a job that required use of both his arms in combination.
316 What then are the consequences of the bilateral shoulder impairment?
317 I accept the plaintiff’s evidence that since 2004 he has experienced constant pain and restriction as a result of his shoulder injuries, the nature and severity of which fluctuates. Whilst Dr Wilkinson referred to ongoing neck and bilateral shoulder pain in his reports, the plaintiff denied he had continuing problems with his neck. Dr Wilkinson was not cross examined.
318 Although there was an attack made on the plaintiff’s credit by counsel for the defendants based on the video surveillance, I did not consider there was anything shown on the film that was inconsistent with the plaintiff’s evidence as to his restrictions.
319 There were only a few isolated instances where the plaintiff raised his arm above shoulder level momentarily to retrieve a shopping item or close the hatchback of his car. When he lifted his three year old grandchild, it was not to a significant height and was only for a brief moment so she could see the cakes at the counter.
320 The plaintiff was not shown engaged in any activity that could be described as repetitive or heavy involving his shoulders.
321 I found the plaintiff to be a truthful witness. Save for findings by Mr Simm and Dr Bloom of some inconsistencies on examination and the presence of a chronic pain response/abnormal illness behaviour, the preponderance of medical examiners accepted the plaintiff’s complaints were genuine and that he co operated on examination.
322 The focus of the plaintiff’s application was on the work consequences.
323 It was submitted that the plaintiff ceased work because of his shoulder condition and that he no longer has the capacity to perform unrestricted manual work as was the case before he suffered injury.
324 In response, counsel for the defendants submitted that it was in fact the plaintiff’s foot condition that led to him ceasing work and restricted his work capacity.
325 I do not accept this was the case.
326 The plaintiff’s evidence in this regard was somewhat confused. Initially he accepted in cross examination that his duties were changed because of his foot condition before he made a claim in relation to his shoulders. He then said whilst he was given certificates for both conditions, no change was made to his duties because of his foot problem.
327 The plaintiff has maintained consistently that he injured his shoulders pushing and pulling heavy trolleys – not tasks he performed whilst on light duties. In his claim form dated 6 August 2004, the plaintiff described his job as a fork lift driver.
328 Histories given by the plaintiff to various doctors suggest that his duties were changed and he was transferred to the washroom following his shoulder injury.
329 Further, Dr Ugwu confirmed in his report of September 2006 that with the restricted duties imposed with the onset of his shoulder condition, the plaintiff was transferred to the washroom.
330 In August 2006, Dr Ugwu thought even without the problem of plantar fasciitis, there would still be no suitable duties for the plaintiff at the current work site. He then considered that the plaintiff’s shoulder incapacity was permanent.
331 Early certificates of capacity relating to the plaintiff’s foot condition did not include any restrictions on his duties. Later certificates that did so were provided in conjunction with certificates relating to the shoulder condition. Further, later return to work plans made no mention of the plaintiff’s foot condition and related only to his shoulders.
332 Clearly, the plaintiff experienced problems with his feet from late 2003, as noted by Dr Wilkinson, and the plaintiff had a number of other health problems in early 2004, as Dr Jabar reported.
333 Whilst there was a flurry of treatment in late 2004/2005 in relation to the plaintiff’s foot condition, he did not complain of ongoing problems of any note after that time and his foot condition plays no part in his current presentation.
334 In any event, if there was an involvement of the foot condition in the plaintiff’s problems working in 2006, a consequence can have a multiplicity of causes as long as there was a material contribution by the compensable injury which I accept was the case.
335 Whilst the plaintiff ceased work because his employment was terminated, I accept that at that time, his capacity was very limited and he was having difficulty with the duties provided to him as part of his return to work plan as he described to Mr Weaver in April 2006.
336 The letter of termination dated 27 August 2007 not only sets out the restrictions on the plaintiff’s employment but also that there were no suitable positions with the first defendant.
337 At the time of that letter, Dr Ugwu was certifying the plaintiff unfit for all work. He had imposed a two and a half kilogram lifting limit and restrictions as to no repetitive neck movement and no work above shoulder height - restrictions which he considered to be permanent.
338 I accept that had he not injured his shoulders, the plaintiff would have worked beyond the age of sixty five as was the situation with his friends. As the plaintiff’s wife confirmed, despite his age, the plaintiff was a relatively active person with a young outlook. Mrs Mosticone was not required for cross examination.
339 The plaintiff had an excellent work history having worked for the first defendant since 1986. I accept that he can no longer engage in unrestricted manual work as he could even at the age of sixty three before suffering significant injury to both shoulders in 2004.
340 I am satisfied that the loss of earning capacity consequence of the plaintiff’s injury, when judged by a comparison with other cases in the range of possible losses of body function, can be fairly described as being more than significant or marked and as being at least very considerable.
341 I am also satisfied that as the plaintiff’s symptoms have persisted for over seven years, his shoulder condition is permanent.
342 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a)
at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
343 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 344 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
345 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
346 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
347 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 70.
348 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
349 Counsel for the plaintiff submitted that $58,870 was an appropriate without earnings figure. This figure was based on the plaintiff’s gross earnings at the end of the 2002-2003 financial year before he started to experience increasing shoulder pain and was unable to work overtime.
350 Counsel for the defendants ultimately submitted that $47,000 was an appropriate figure as the plaintiff had a reduced capacity because of his foot condition.
351 I am not satisfied that there was any basis for this submission and accept that the appropriate without injury earnings figure is $58,870. Sixty per cent of that amount is $35,322 or $680 per week.
352 As at the date of hearing, the plaintiff’s income from personal exertion is nil.
353 As I have indicated earlier, I accept that as a result of his shoulder condition, the plaintiff’s ability to engage in unrestricted manual work is permanent.
354 What then is his capacity for suitable employment?
355 Occupational assessments carried out on behalf of the defendants on two occasions, confirmed the plaintiff was not suitable for any work.
356 Save for Mr Simm, recent medical opinion is to this effect.
357 In June 2011, Mr Doig thought the plaintiff would be permanently restricted as far as lifting, pushing, pulling or overhead activities were concerned. He noted the plaintiff was able to work full time on light duties for three years prior to termination but he did not think the plaintiff would be able to go back to his pre-injury duties.
358 In July 2011, occupational health specialist, Dr Castle thought the plaintiff had no capacity to do his pre injury work because of the severity of his bilateral shoulder condition.
359 Dr Castle formed this view after having carried out a detailed analysis of various jobs suggested as suitable by the defendants.
360 Noting that the plaintiff had very limited education and difficulties with English and a history of heavy manual work only, Dr Castle considered that the only possible job option would a crossing supervisor. However, the plaintiff would not be able to stand for the length of time required and would not be able to do that work reliably and consistently from day to day.
361 In July 2011, Dr Wilkinson thought the plaintiff was then not able to perform his pre-injury duties due to his bilateral shoulder pain – a situation that was permanent and would exclude any productive employment.
362 Mr Simm, who examined the plaintiff in July 2011, is alone in the view that there were no physical factors arising out of work that would prevent the plaintiff from performing similar modified work duties with another employer.
363 I am satisfied that the plaintiff does not have a capacity for suitable employment.
364 Accordingly, I accept that the plaintiff has a loss of earning capacity of forty per cent that is permanent.
365 I am also required to consider issues of retraining and rehabilitation pursuant to sub section (g).
366 In light of my findings as to the plaintiff’s impairment and incapacity for employment, I am not satisfied that there is any retraining or rehabilitation that would be appropriate to be undertaken by him which would alter the situation that he has a loss of earning capacity of forty per cent or more.
367 As rehabilitation and retraining have nothing to offer him in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38(g).
368 As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, he is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
369 Accordingly, I grant leave to the plaintiff to bring proceeding for damages for loss of earning capacity and pain and suffering.
- - -
6
0